There is an interesting case being heard at the Supreme Court of Canada today, which goes to the heart of how laws are made in this country. An Alberta First Nation, the Mikisew Cree, applied to the Federal Court for judicial review of the 2012 Conservative budget implementation bill after its changes to environmental legislation didn’t consult them, per Section 35 of the Constitution. The problem? You can’t have the courts interfere with the legislative process. That goes to the heart of parliamentary privilege and the separation of powers.

The Federal Court allowed a partial application, citing that they should have been given an opportunity to make submissions, but this was overturned by the Federal Court of Appeal, which (correctly, in my view) cited that the Federal Court Act had no jurisdiction over the legislative process, and that it offended parliamentary privilege and the separation of powers, and there was an additional issue that this omnibus bill was of general application and did not apply specifically to this First Nation. The Supreme Court of Canada now gets to hear the issue and decide whether or not this should be the case in the face of the constitutional duty to consult.

While I’m sympathetic to the need to consult on these issues, particularly on issues that will affect their lands and ability to have engage with the processes that are created out of the regulator bodies that are engaged by the legislation once it is enacted, I do have a problem with the demands that any outside group be included in the drafting process. And while the current government has made a great deal of effort doing consultations before they draft bills (and there is no shortage of grousing as to how it slows down the process), there are usually plenty of opportunities to intervene once the bill is tabled and reaches committee hearings in both the Commons and the Senate. This is how parliament is supposed to work. Trying to short-circuit this has an effect on things like cabinet secrecy, and more likely, could grind the legislative process to a halt if you were dealing with a group that wanted to be obstinate. But also, it bears reiterating that parliamentary privilege and the separation of powers are not things to be trifled with, because it undermines the ability of parliament to do its work. While I’m confident that the Supreme Court will do the right thing, I do worry that this case has made it this far and could be victim of novel thinking that could do lasting harm to our institutions.

Good reads:

• Chrystia Freeland says a lot can happen in the six-month period should Trump tear up NAFTA; François-Philippe Champagne says they are mapping out eventualities.
• Senator Peter Harder attended last week’s cabinet retreat for the first time. (I’ll write more about this later).
• There are concerns around exceptions granted to CSE in the national security bill C-59, and what they could mean for privacy rights.
• Canada may employ paper ballots that can’t be hacked, but that doesn’t mean that our electoral machinery isn’t vulnerable to hacks in other ways.
• Charities are wondering what is taking so long for the government to respond to an expert panel recommendation on political activities by charities.
• While the federal government promised more funds for First Nations policing, one northern Ontario First Nation is carrying on a Human Rights Tribunal complaint.
• The Canadian Press got a draft copy of a CSIS report on “mega trends” that will affect the security landscape, around things like AI and biotechnology.
• Here is a longread profile of Beverley McLachlin, from her childhood to her legal legacy.
• Here is a look back at how Justice Gerald LeDain was forced to resign from the Supreme Court of Canada because of depression.

Odds and ends:

While the government’s critics keep calling the Aga Khan a “billionaire,” here’s a better look at who he is.