BenchPress--Vol 43-2.

• Author: Mitchell, Teresa
• Position: Mikisew Cree First Nation v. Canada; Kulemin v. Canada; Ontario Securities Commission v. Tiffin

November 2, 2018

1. Important Limit to the Duty to Consult

   Alberta's Mikisew Cree First Nation took the federal government to court over its omnibus budget bill of 2012. This bill made significant changes to Canada's environmental protection regime. The Mikisew were not consulted at any stage of the legislative process and they argued that the bill had the potential to adversely affect their treaty rights to hunt, fish and trap. The Supreme Court of Canada rejected their appeal. It ruled that the development of legislation by cabinet ministers does not trigger a duty to consult with aboriginal people. The Court wrote: "The duty to consult is ill-suited for legislative action. It is rarely appropriate for courts to scrutinize the law-making process, which includes the development of legislation by ministers... Recognizing that a duty to consult applies during the law-making process may require courts to improperly trespass onto the legislature's domain." The Court noted that the separation of powers is an essential feature of Canada's Constitution and applying the duty to consult as the Mikisew requested would lead to a significant intrusion of the courts into parliamentary sovereignty.

   https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17288/index.doc

   Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40

2. This Toronto Maple Leaf is a Winner!

   Nikolay Kulemin was a forward with the Toronto Maple Leafs from 2008 and 2014. In 2014, he and his wife applied for Canadian citizenship, stating that they had a long--held desire to be Canadian citizens, their two children were born in Canada, they had extensive business and investment ventures in Canada, and had integrated into Canadian society. However, in 2017 a citizenship judge rejected their application, ruling that they failed to meet the required number of residency days in Canada, traveled "wherever hockey took them" and no longer lived in Canada because Mr. Kulemin had been traded to the New York Islanders. Madame Justice Kane of the Federal Court of Canada gave them another chance. She decided that the Citizenship judge's decision was not reasonable on the face of the evidence. She wrote that while the Applicants' absences from Canada were significant, they should be considered in light of the Papadogiorgakis case, which allows for absences from Canada when they are temporary and the applicant can establish a centralized mode of living in Canada. Madame Justice Kane...