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| Rob Louie |
On Dec. 16, Chief Bobby Cameron, who heads up FSIB, and more than 30 other chiefs spoke out against the Act.
In a nutshell, the Act asserts provincial jurisdiction on exploration for non-renewable natural resources and energy. So, Saskatchewan is not carving out a new area of the law for itself when it comes to natural resources and energy, because it already possesses constitutional power in this area. The Act also does not purport to challenge treaties, either.
So, why all the brouhaha?
First, while constitutional law makes it crystal clear that Saskatchewan has legislative authority in the area of natural resources, the Act it did not stop there. The Act goes further to assert that the constitutional doctrine of interjurisdictional immunity falls in favour of the Land of the Living Skies. This has not only raised the hackles of the federal government, but it is also an attempt to have a do-over for this doctrine. Second, natural resources are something that goes to the core identity of First Nations in Saskatchewan. Hence, the war cry of FSIN.
Let’s untangle this imbroglio.
According to constitutional law expert, Peter Hogg, the term interjurisdictional immunity does not have a precise meaning, but the doctrine is rooted in the idea that legislation enacted by one order of government cannot interfere with the core of any subject matter that is under the jurisdiction of the other order of government. In theory, interjurisdictional immunity is applicable to both federal and provincial laws, but in fact, it has only been used against provincial laws.
The courts have held that the doctrine of interjurisdictional immunity recognizes that our Constitution is based on an allocation of exclusive powers to both levels of government, not concurrent powers, although these powers are bound to interact in the realities of the life of our Constitution. It is a doctrine that has generally been of limited application. The courts have repeatedly held that broad use of the doctrine would be inconsistent with the flexible federalism that the constitutional doctrines of pith and substance, double aspect and federal paramountcy are designed to promote. Yet, Saskatchewan pushed past this warning.
While the Act attempts to extricate Saskatchewan from federal laws that it finds abhorrent, it appears to be overplaying its hand by using the interjurisdictional immunity card.
Now, let’s get back to the FSIN. The chiefs at FSIN took umbrage with the Act alleging that it is a treaty-killer, but no examples were ever provided as to how the Act breached their treaties. Yet further, Chief Margaret Bear of Ochapawace First Nation exclaimed, “The Canadian government and Saskatchewan talk reconciliation, but where is the action?” Having read the Act myself, I note that the Act is not a reconciliation or accommodation agreement, and therefore, one would be hard pressed to say that it engages the honour of the Crown. Again, the wording in the Saskatchewan First Act over natural resources is something already set out in our Canadian Constitution(s).
Perhaps the best line of attack came from Chief Joyce Naytowhow from Montreal Lake Cree Nation who said there should have been consultation. The question thus becomes whether the court may intervene where it appears that a duty to consult could — or should — arise in the legislative process before a bill is introduced.
Justice John Sopinka in Reference re Canada Assistance Plan, clearly drew a line saying that, except possibly in Charter cases, the court should not impose a legal impediment upon government so as to require further procedural steps to be taken before a bill is introduced.
The leading case on this point vis-à-vis the duty to consult First Nations, is Courtoreille v. Canada (Aboriginal Affairs and Northern Development) (2018). Briefly, two pieces of omnibus legislation with significant effects on Canada’s environmental protection regime were introduced into Parliament. The Mikisew Cree First Nation were not consulted on either of these omnibus bills at any stage in their development or prior to the granting of royal assent. The Mikisew brought an application for judicial review in Federal Court, arguing that the Crown had a duty to consult them on the development of the legislation, since it had the potential to adversely affect their treaty rights to hunt, trap and fish under Treaty No. 8.
Mikisew lost.
This country’s top court held that when ministers develop policy, they act in a legislative capacity and their actions are immune from judicial review. The ruling followed the principles of parliamentary sovereignty, the separation of powers and parliamentary privilege. Simply put, the development of legislation — like the Saskatchewan First Act — by ministers is legislative action that does not trigger the duty to consult.
The upshot is Saskatchewan may win in fending off any sort of duty to consult FSIN; it may lose on its interjurisdictional immunity section against the federal government; and since the respective positions of the FSIN, federal government and Saskatchewan’s are inchoate and inconclusive, it remains a draw until the matter has been adjudicated
Rob Louie is a constitutional scholar specializing in constitutional law and president of Band Members Alliance and Advocacy Association of Canada.
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