Jamais deux sans trois, as they say. Here’s a third post on Mikisew, focusing on how it reflects the evolution of the Westminster system in the UK and Canada.
The 17th Century was a critical time in the evolution of the relationship between the Crown and Parliament. We tend to focus on the Civil War, but let’s leave that aside and focus on where the struggle landed: the Bill of Rights 1688.
The Bill of Rights settled a number of issues that lingered after the Civil War and into the Restoration. Among these were parliament’s authority over the Crown’s prerogative and the Crown’s efforts to invalidate statutes.
As well, the Bill of Rights addressed the Crown’s efforts to use the courts to go after parliamentarians and mess with Parliament’s affairs.
So, what do we find in the Bill: the Crown can no longer dispense and suspend laws of Parliament; the Court of the King’s bench can’t prosecute “Matters and Causes cognizable onely in Parlyament and by diverse other Arbitrary and Illegall Courses.”
What else? “That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.”
What matters for our purposes is that the Crown can’t nix parliamentary laws and the courts can’t be used to muck around in parliamentary debates and procedures.
In the context of Mikisew, the heritage of the Bill of Rights matters because: a) the Crown can’t invalidate laws of Parliament, even if it has duties that will be affected by those laws; b) the courts shouldn’t involve themselves in parliamentary affairs.
Fast forward to the 18th Century. The British Crown conquers French Canada. As a result of military conquest and now a British colony, the Canadas are under the sovereignty of the Crown. We see this with the Royal Proclamation of 1763. This derived from royal authority.
Why does this matter? The Royal Proclamation would enshrine the honour of the Crown and duty to consult First Nations. But it is not a *parliamentary statute*. It is a declaration of royal authority, of Crown power.
The treaties that were later negotiated with First Nations in Canada were also with the Crown, not Parliament.
Why does this matter for Mikisew? From the outset, the honour of the Crown is tied to the royal authority of the Crown as a conquering power with sovereignty over these lands, not the legislative authority of Parliament.
Stated differently, the honour of the Crown belong to the imperial, conquering Crown, not the legislating Parliament.
Fast forward to 1867. The British North America Act states that Canada has a constitution similar in principle to the UK. That alludes to the Bill of Rights, etc. The Act also make a clear distinction between the Crown as the executive power and the Parliament as the legislative power.
This matters because the distinct executive and legislative capacities of the Crown are found in the Act. Similarly the distinction between the Privy Council (Cabinet) and parliamentarians is found here, even though by convention the former is tied to the latter.
Courts in the UK and Canada would increasingly treat the Crown as the executive alone. It’s lazy, it’s wrong, but it’s practical.
Narrowing the Crown to the executive means that when the Crown acts as the sovereign authority, the state, it is largely understood to do so in its executive capacity.
So the Crown acts on the advice of the executive council when declaring war, deploying troops, ratifying treaties, issuing pardons, conducting foreign affairs, and other matters of state, etc.
It even gets to the point where the argument is made that the Crown acts on the advice of the executive council when granting royal assent to legislation.
In Haida, moreover, the SCC ties the duty to consult and honour of the Crown to the government, the executive.
In 1981, furthermore, the English Court of Appeal made clear that we can break the Crown apart into different capacities to specify *which* Crown bears the honour. They determined it was the Crown in right of Canada, not the Crown in right of the UK.
To bring it all together: the SCC is Mikisew ends up adhering to the relationship between the Crown, Parliaments, and courts as exemplified by the Bill of Rights 1688. They stick with the Crown’s sovereignty and duty acting through the executive.
Brown, however, breathes new life into the legislative capacities of the Crown, notably in terms of royal recommendation, assent, and consent. That’s a canny move, since it acknowledges the Crown in Parliament, but also cuts it off from historic notions of duty as executive.
Finally, Mikisew doesn’t weaken the executive’s duty to consult when engaging in governing conduct. And it seems clear to me that the duty would still apply to crafting regulations by the executive. All it does it build a wall around legislation until it becomes law.