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November 22, 2018

Supreme Court Decides That Duty to Consult Does Not Apply to Law-Making Process: Mikisew Cree First Nation v Canada

On October 11, 2018, the Supreme Court of Canada (“SCC”) released its decision in Mikisew Cree First Nation v Canada (Governor General in Council) (“Mikisew Cree”).  A majority of the Court held that the duty to consult is not triggered by the development of legislation. 

The SCC offered four competing opinions about the scope of the duty to consult and whether the honour of the Crown applies to the Legislature.  The divided decision indicates that this may be more of a policy than a legal question.  The Court recognises that its analysis would not apply where existing Land Claim Agreements require consultation in relation to proposed legislation.

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