Mikisew Cree First Nation v. Canada (Governor General in Council) [2018] 2 SCR 765

Omnibus legislation that would alter environmental protection was introduced in Parliament in 2012. The Mikisew Cree applied to the Federal Court for judicial review, arguing that they should have been consulted during the development of the legislation because it could have a negative impact on their Treaty 8 rights to hunt, trap and fish (see Mikisew Cree v. Canada (Minister of Canadian Heritage), 2005). The Supreme Court decided that the Federal Court, a statutory court whose jurisdiction is defined by the Federal Court Act, lacked jurisdiction to hear the application. The Court also decided that the Crown's duty to consult is limited to the context of executive action. It does not apply to the legislative process, including the development of legislation before its introduction into Parliament. Application of the duty to consult to the legislative process would interfere with parliamentary sovereignty, parliamentary privilege, and the separation of powers between the legislative, executive, and judicial branches of government. However, if the effect of legislation once enacted would be to infringe Aboriginal or treaty rights, it could be challenged in accordance with the Sparrow decision (1990).