The Supreme Court of Canada has rejected the arguments of an Alberta First Nation that said Indigenous people must be consulted when the federal government is drafting laws that could affect treaty rights.

In a decision released Thursday, the judges of the top court also unanimously agreed that the courts do not have the jurisdiction to make decisions about bills that are still being developed and debated by Parliament. The separation of powers spelled out in the Constitution, they said, means Parliament has the right to pass legislation, and courts may hear challenges of that legislation only after it has become law.

“Two constitutional principles – the separation of powers and parliamentary sovereignty – dictate that it is rarely appropriate for the courts to scrutinize the law-making process,” wrote Justice Andromache Karakatsanis.

On the matter of the government’s duty to consult with Indigenous people when laws are being made, the Supreme Court was divided, with seven of the nine judges agreeing that the Crown does not have such an obligation.

In addition, five of the judges said the principle of the Honour of the Crown, which requires the government to act honourably when dealing with Indigenous people, still applies during the legislative process, but they were divided about the practical effects of that requirement.

The Mikisew Cree First Nation, based on Fort Chipewyan, Alta., went to the Federal Court in 2012 after the federal Conservative government of the day introduced two omnibus budget bills that dramatically altered Canada’s environmental laws.

In addition to replacing the Canadian Environmental Protection Act, the bills made significant changes to the Fisheries Act, the Species at Risk Act and the Navigable Waters Protection Act.

The Mikisew Cree said the bills, which reduced government oversight of lands and waters, could impinge upon their rights to hunt, fish and trap on their traditional territory – rights that were guaranteed under the treaty they signed in 1899. They asked the court for a judicial review of the process that the government used to draft the law, arguing they should have been consulted.

The Federal Court granted a declaration that there was a duty to consult during the legislative process. But the Federal Court of Appeal, in December, 2016, overturned that ruling, saying that when ministers develop policy, they are acting in a legislative capacity and their actions are immune from judicial review.

Under the principle of the Honour of the Crown, which was written into the Royal Proclamation of 1763, governments have a duty to consult with Indigenous people when contemplating actions that could affect their treaty rights. That duty is understood to affect such things as the granting of permits or the construction of roads.

But the First Nation wanted it applied to the writing of laws.

Archie Waquan, the Chief of the Mikisew Cree, said he is sure that the First Nation has increased awareness of the need for consultation with Indigenous people even though it lost the case.

“They have to figure out, when they make laws, how are they going to keep consulting,” Mr. Waquan said in an interview. “The Indigenous groups of this country have to be a little bit more aggressive to get some of their thoughts known on how they are being treated and hopefully the government will come on side.”

The Federal Court has jurisdiction to review the decisions of federal boards, commissions and tribunals, but not the work of the House of Commons or the Senate. The First Nation argued that when legislation is being created, the federal government is essentially acting as a board, commission or tribunal and the court has the right to step in when Indigenous rights are breached during that process, before a proposed law comes before Parliament.

But the federal government responded by saying the legislative process could not be divided between the development of a law and its passage, which means the courts have no right to interfere. And, it said, the type of consultation being demanded by the First Nation would breach the sovereignty of Parliament.

In writing for herself and two other judges, Justice Karakatsanis wrote that “parliamentary sovereignty mandates that the legislature can make or unmake any law it wishes, within the confines of its constitutional authority.”

Applying the doctrine of duty to consult during the law-making process, she wrote, “would lead to significant judicial incursion into the workings of the legislature.…”

But two of the Supreme Court judges disagreed.

“The Honour of the Crown [governs] the relationship between the government of Canada and Indigenous people,” wrote Justice Rosalie Abella in a minority opinion. “This obligation of the honour gives rise to a duty to consult and accommodate that applies to all contemplated government conduct with the potential to adversely impact asserted or established aboriginal treaty rights including, in my view, legislative action.”

The Globe and Mail, October 11, 2018