Justiciability of the Prerogative: Hupacasath First Nation v. Canada (Attorney General), 2015 FCA 4
The Federal Court of Appeal decision in Hupacasath First Nation v. Canada (Attorney General), 2015 FCA 4 on justiciability of international treaties, the prerogative in respect of foreign affairs, the duty to consult First Nations and the jurisdiction of the federal courts is hugely significant (first-instance decision noted here).
At issue was a foreign investment promotion agreement between Canada and China which contains a number of clauses found in similar agreements relating principally to the treatment of foreign investors and ancillary matters. HFN claimed that the agreement would have an adverse impact on them, which triggered the federal government’s duty to consult prior to entering into and ratifying the agreement.
Several big issues arose (though I treat them in slightly different order to the court). First, was the exercise of the prerogative here justiciable? Stratas J.A. recognized that “Some questions are so political that courts are incapable or unsuited to deal with them, or should not deal with them in light of the time-honoured demarcation of powers between the courts and the other branches of government” (at para. 62).
Indeed, very rarely, “exercises of executive power are suffused with ideological, political, cultural, social, moral and historical concerns of a sort not at all amenable to the judicial process or suitable for judicial analysis. In those rare cases, assessing whether the executive has acted within a range of acceptability and defensibility is beyond the courts’ ken or capability, taking courts beyond their proper role within the separation of powers” (at para. 66).
I would prefer to say that it depends on the characterization of the issues before the court: what matters is whether a cognizable legal claim can be made out, not whether the decision falls into a pre-existing category of non-justiciable “political questions”. Sure enough, Stratas J.A. emphasized the vital importance of assessing the nature of the claim made by the applicant: “Assessing whether or not legal rights exist on the facts of a case lies at the core of what courts do” (at para. 70). And here, HFN’s claim was legal — breach of the duty to consult — rather than political:
It alleges that, regardless of the factors prompting the Agreement, the decision of the executive to bring the Agreement into effect would be unacceptable and indefensible because the appellant has enforceable legal rights to be consulted before that happens. In this case, acceptability and defensibility turns on whether or not the appellant has those legal right (para. 69).
Secondly, however, the duty to consult was not triggered on the facts of this case. The potentially negative effects of the agreement and other related agreements were too speculative. Stratas J.A. found “no evidence deserving of sufficient weight that these agreements are causing or might cause Canada to make decisions that are contrary to law” and in particular, that nothing before the court suggested “that those agreements are causing Canada to make decisions that do not respect Aboriginal rights” (at para. 91):
 Until there is at least a prospect of a decision or event prompted by the Agreement and until we know the nature of that decision or event, we cannot say with any degree of confidence or estimate any possibility that there will be a collision between protecting Aboriginal rights and a monetary award under the Agreement. If a decision or an event prompted by an agreement affecting Aboriginal rights were in prospect, a duty to consult might then arise depending on whether it causes a possibility of harm. But nothing is in prospect at this time, nothing can be defined, nor can we even say that anything problematic might ever arise. At this time, all we can do is imagine decisions or events and impacts from them that might or might not happen as a result of the Agreement. However, the duty to consult is triggered not by imaginings but by tangibilities.
Alert readers will notice the similarity with the Supreme Court’s decision in Operation Dismantle v. The Queen,  1 SCR 441 which accepted that exercises of prerogative alleged to be non-compliant with fundamental rights are justiciable but that, on the facts, the claim that harm would be suffered by Canadian citizens as a result of cruise missile testing was too speculative.
Thirdly, did the federal courts have authority to review the federal government’s actions, an exercise of the foreign affairs prerogative (see para. 33)? If not, it is important to note, the only consequence would be that HFN would have to proceed in one of the provincial superior courts, who have “power by default because of their inherent jurisdiction” (at para. 34). This turns on the text of s. 2(1) of the Federal Courts Act, which had previously been interpreted by the Ontario Court of Appeal to mean that exercises of “pure prerogative power” are outside the jurisdiction of the federal courts. To this proposition (not binding on the Federal Court of Appeal), Stratas J.A. had a robust response:
 An interpretation that the Federal Court has the power to review federal exercises of pure prerogative power is consistent with the Parliament’s aim to have the Federal Courts review all federal administrative decisions. The contrary interpretation would carve out from the Federal Courts a wide swath of administrative decisions that stem from the federal prerogative, some of which can have large national impact…
 The contrary interpretation – an interpretation that hives off exercises of federal prerogative power from exercises of powers under orders made by or under the prerogative power – is a technical distinction that serves only to trap the unwary and obstruct access to justice.
In this case, Stratas J.A. noted, there were two exercises of government power, one to authorize the Minister for Foreign Affairs to enter the agreement and one to ratify it. Only the former was a “pure prerogative” power; the latter clearly fell under s. 2(1). Hiving off “pure prerogative” powers would cause “two separate proceedings in two separate courts, with every potential for unnecessary expense, delay, confusion and inconsistency” (at para. 57: for a recent example of the danger of bifurcation, see Stratas J.A.’s dissent in Larkman v. Canada (Attorney General), 2014 FCA 299). This is something the Supreme Court has been anxious to avoid. Indeed, if the Ontario Court of Appeal were faced today with a challenge to an exercise of the prerogative, it could probably do so without having to assert an exclusive authority to do so (at para. 46).
This is a significant decision on each of these three points. First, it indicates that the category of questions that are truly non-justiciable is very small indeed. As long as an individual has a legal grievance, it can be resolved by a court of competent jurisdiction. Second, it is cautious about the scope of the duty to consult, a subject of intense interest since the Supreme Court’s relatively recent recognition of the duty. And third, at a time when the federal courts have been unfavorably portrayed in the public eye, it is a strong reaffirmation of their role in reviewing federal administrative action. In particular, this case will be crucial in determining whether a challenge to executive failure to appoint senators can proceed in federal court, a point I will come back to in a subsequent post.
This content has been updated on January 21, 2015 at 12:12.