Wednesday, February 6, 2013

The MacKinnon/Dial Exchange

Nation, every so often as you're surfing through the ether of social networking, you stumble across proof that it is possible to disagree about an issue without coming to blows, putting together a snotty inforgraphic or proving Godwin's Law.

This was the case for me a few weeks ago, when I saw an exchange between two University of Calgary 3rd-year Law students on Facebook regarding the Idle No More movement.

Now, I'm still working through my feelings on the movement as a whole. What's making it harder for me is the notion pushed by a small but strident segment of the activists that, as a Canadian of European descent, I am to be referred to as a "settler", and if I levy any criticism towards the movement or its leaders or tactics, I'm automatically therefore (at best) ignorant of my own racial prejudices, or (at worst) a closeted racist.

As I said, though, the morons advocating those extreme positions are but a small segment of the movement as a whole, so I'm trying not to judge their entire enterprise based on the loony-tunes opinions of a few. :)

This is the exchange between Alastair MacKinnon and Josh Dial, with notations and links to same by a fellow 3rd-year Law student. MacKinnon is, by the way, the Law School Debate Champion as of a few days ago. But I could still TOTALLY take him. ;)

MacKinnon/Dial, notations by MO, begins now.


MO: Alastair posted this link, which sparked his debate with Josh Dial.

JD: Virtually everything in the article regarding consultation is complete nonsense, and has no basis in law, despite what Professor McNeil thinks.

The Crown is not the legislative branch, despite what many think. The legislature has the power to make and unmake laws as it chooses. On this point, Hogg says, "there are no limits to legislative power; there is no fundamental law which cannot be altered by ordinary parliamentary action."

In [Re:Anti-Inflation Act, [1976] 2 SCR 373], Chief Justice Laskin wrote that "[t]he answer to this submission is simple, and it is an answer that has been consistently given by the Courts, namely, that the wisdom or expendiency or likely success of a particular policy expressed in legislation is not subject to judicial review. Hence, it is not for the Court to say in this case that because the means adopted to realize a desirable end, i.e., the containment and reduction of inflation in Canada, may not be effectual, those means are beyond the legislative power of Parliament."

Of course, Parliament and legislatures are constrained by a number of factors, including federalism, the constitutional amending process, the Charter, and Aboriginal rights under s. 35 of the Constitution Act, 1982. However, the duty to consult is not a right, but a duty.

If the Bill's effects lead to situations where the Crown fails to discharge its duty to consult, then Aboriginal groups will have an action. However, Parliament owes no such duty of consultation when drafting or proposing or voting on the legislation itself, and therefore Aboriginal groups have no justified claim in that regard. Even if the Bill specifically targeted the duty of consultation, there would still be no claim on that ground--the government would instead have to justify (and fail) the legislation as per Sparrow.

Is Parliament now to consult on every bill? Clearly things like criminal and tax legislation will have specific implications for Aboriginals.

AM: It’s a little overzealous to say that there is no basis in law... unless of course you think that decisions of the [Supreme Court of Canada (SCC)] interpreting the constitution with respect to Aboriginal rights does not amount to law... then I suppose you might be correct. But so long as we are still in a common law system, I should think that the SCC pronouncements on Aboriginal rights are binding legal authority.

There needs to be a distinction drawn between the sovereign powers of parliament to pass bills and the Crown's duty to consult. In my reading of the blog post, there is no suggestion that it was beyond Parliament's power to pass Bill C-45. Indeed there can be no doubt that Bill C-45 followed the proper legislative process to become a law in this land. The argument is that, notwithstanding that proper legislative procedure was followed, the outcome may not be constitutionally valid. In this respect, it is no different than when Parliament passes a law that violates the Charter and is subsequently struck down. The fact that a bill gets three readings in both houses does not magically turn a substantively unconstitutional law in to a constitutionally valid one.

Furthermore, the fact that bill goes through the proper legislative process does not absolve the Crown of its duty to consult. Let’s pause for a moment and remember our Hofheld: we will all recall that the correlative to a Duty is… that’s correct… a Right! If the Crown has a duty to consult, it’s because Aboriginals have a right to be consulted. It cannot be ignored that Bill C-45 was moved by Ministers of the Crown. Also, legislative enactments are acts of the Crown; the preamble of every Act reads... " Her Majesty, by and with the consent of...." and of course we are all familiar with the requirement of a Bill to receive royal assent before it becomes a law. While each Member of Parliament may not be an agent of the Crown, the outcome of the legislative process is an Act of the Crown. Parliament may pass bills without affording the Crown an opportunity to consult, but it doesn't mean that the duty disappears after Parliament has acted, nor that there are no consequences on the validity of Parliaments act as a result of the failure.

So to conclude, the quarrel does not appear to me to be between Parliament and First Nations, but between the Crown and First Nations. Because the Crown chose not to consult, and because Parliament chose to pass the bill anyways, Parliament's action may be struck down as a result of the Crown's failure. This is not unjust, or undemocratic; it is a function of constitutionalism, and the requirement that when government's act they do so in compliance with their constitutional obligations.

JD: I am in complete agreement with you on your second paragraph (which is why I confined my post to consultation). I'm pretty sure I made the necessary concessions to the constraints of law-making in my post.

However, the fact that legislation is assented to by [Her Royal Highness (HRH)], contains magical words, and may be moved by Ministers (who are the Crown) does not make legislation an action contemplated by and captured by the duty to consult. Elected members of the lower house are not the Crown (I would hasten to add that HRH and "the Crown" are not always the same thing-- it's a very fine distinction, but it's there). Members of Parliament may table, vote, defeat, and pass whatever legislation they choose, without the requirement to consult Aboriginals as to the content or effects of the legislation. Parliament's Members don't have to consult anyone else when they pass legislation-- they'll live or die at the polling station later. Why should they have to specifically consult with Aboriginals?

*Implementing* legislation will most certainly attract the duty to consult. *Drafting* and *passing* legislation does not.

Again I would ask: must Parliament consult with every Aboriginal band in all of Canada, when it wishes to pass an act potentially affecting them, such as an act regarding criminal law or taxation? If the effects would be large, is more than mere notice required? Is deep consultation?

What about appropriations bills? Must Parliament consult for every budget now if it affects an Aboriginal or treaty right (which they surely could)?

If a bill is scheduled for a vote, and no consultation has occurred or is likely to occur, can an Aboriginal group seek an injunction prohibiting the vote or rendering it ineffective?

See also R v Lefthand, 2007 ABCA 206 (leave to SCC denied), where the Court said, at para 38, "There can however be no duty to consult prior to the passage of legislation, even where aboriginal rights will be affected..."

Also at para 38: "[i]t would be an unwarranted interference with the proper functioning of the House of Commons and the Provincial Legislatures to require that they engage in any particular processes prior to the passage of legislation. The same is true of the passage of regulations and Orders in Council by the appropriate Executive Council. Enactments must stand or fall based on their compliance with the constitution, not based on the processes used to enact them."

AM: The problem isn't that parliament passed the bill, it’s that the Crown failed to consult when it proposed action which it knew would impact on actual and claimed aboriginal rights. I concede that Parliament is free to pass any bill, at any time, for any reason(s) it sees fit. But if the agents of the Crown (i.e. ministers) should have consulted and failed to do so, and parliament chooses to pass the legislation nonetheless, then Parliament takes the risk that their legislation will subsequently be struck down on judicial review. I take your point that there is a distinction to be made between passing legislation and implementing legislation. There cannot, I should think, be any constraint on the former, while there can undoubtedly be limits placed on the later.

While the House of Commons as an institution may not have the duty to itself undertake the consultations, such consultations may nevertheless be a constitutional pre-requisite. It’s trite to say that Parliament must comply with the constitution when passing laws; if it fails to abide by the constitution -- be it for jurisdictional reasons, non-compliance with the Charter, or passing legislation which will in consequence result in a violation of aboriginal rights protected by the constitution -- then it does so at its own peril. I think the issue that that the Idle No More movement takes with Bill C-45 is not that parliament exercised its legislative sovereignty to pass a Bill, but that failure to consult when the implementation can have foreseeable consequences on Aboriginal rights will not allow for any sort of meaningful consultation and accommodation when the changes are presented as a fait-accompli.

I was not previously aware of the Lefthand decision, but I would note that in para 37, the [Alberta Court of Appeal (ABCA)] says that the duty to consult is still "being hammered out on the anvils of justice." Admittedly, Lefthand appears to stands as an authority against the position that I would advocate and the position that the Idle No More movement would argue. But one decision from the ABCA hardly settles the matter, and all that can be inferred from the leave application being denied is that the SCC chose not to hear the appeal. It is at least arguable that the duty to consult should be extended to situations like Bill C-45, and there is sound legal authority upon which to make such arguments. Whether the arguments will prevail at the end of the day or not I do not know, and there can be valid debate about whether Idle No More ought to succeed.

JD: I think you are giving the Idle movement more credit than it is due, honestly--indeed your fait-accompli statement is probably more nuanced than the actual position

Every single release/petition/letter I've read (I think I'm up to about thirty, now) specifically mentions how the government (always says government, and not Crown) owes a duty to consult and accommodate (says accommodate, not "where necessary, accommodate") when it wrote, voted on, and passed the bill. Full stop.

In my opinion, if Aboriginal groups want to argue that by passing specific legislation, Parliament has effectively pre-empted effective consultation (or otherwise prevented it from occurring), they will have an action when there is a prima facie case of failure to discharge the duty (or when the legislation runs afoul of the Sparrow test, etc). If the legislation is indeed so bad, then it ought to be a very easy case to make!

In effect, if Parliament wants to make it even easier to be found in breach of the duty to consult, then it can do so, to its own detriment. I'm more than happy to cast my vote against an MP who insists on voting for such bills.

Lefthand is correct that the duty is still being hammered out, and to that end, the Aboriginal groups certainly have a right to test the law and make it do work for them. However, I stand by my view that as regards the consultation question, they are wrong both in law and policy (see my questions above for the policy implications).

Good debate though, sir! Always entertaining!

AM: Indeed, its always a pleasure!


So, what say you, Nation? Are you with Josh, who puts forth that the Idle No More assertion that no consultation on C-45 makes it invalid is, in fact, incorrect? Or do you agree with Alastair, that the failure to consult at the legislative stage impacts the ability of First Nations to be consulted during implementation?

Or, can we all just agree that Omnibus bills are fundamentally undemocratic, and lead inevitably to pork barrel spending and legislative takeovers by Special Interests, like we see in the legislatures of our friends to the South? ;)

Argue the Law, not the politics, s'il vous plait.


1 comment:

Donal O'Beirne said...

I tend to agree with Josh.

Having a duty to consult with external parties when drafting legislation would essentially block most legislation before it made it to committee.

I realize that many external parties are consulted during the process for various Bills but there is no duty to do so, nor should there be.

Consultation on proposed legislation does take place as Bills wind their way through the reading and legislative committees, the then on to the Senate for ratification. That is the proper place for the official consultation.