Case BriefsForeign Courts

Supreme Court of Canada: A Nine-Judge Bench comprising of Wagner C.J., and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin, JJ. dismissed the appeal filed by an aboriginal group challenging the introduction of a legislation without their consultation, ruling that while the State had to act honourably towards its indigenous people, but it did not mean that the Parliament had to consult them in the legislative process.

The Mikisew Cree First Nation, a territory in north-eastern Alberta, was a member of Treaty No. 8 – the eighth agreement signed by Queen Victoria and First Nations in Western Canada. Under the said treaty, in exchange for giving up their ownership of a large amount of land, Mikisew kept the right to hunt, trap, and fish on it. In the present day, these aboriginal treaty rights are protected by the Constitution of Canada.

When in April 2012, an environmental protection legislation was introduced in the Parliament without Mikisew’s consultation, it brought an application for judicial review in Federal Court, arguing that the Crown had a duty to consult them on the development of legislation, since it had the potential to adversely affect their treaty rights to hunt, trap, and fish under Treaty No. 8 and the constitutional law concept of ‘honour of the Crown’.

The Federal Court allowed Mikisew’s application but the said decision was overturned by the Court of Appeal stating that Federal Court did not have jurisdiction to hear Mikisew’s application because courts can only adjudicate on challenges to laws that have been passed, not laws that are being developed and debated. Aggrieved thereby, the instant appeal was preferred.

The Supreme Court unanimously dismissed the appeal holding that judicial review under the Federal Courts Act, 1985 was not available for actions of federal ministers in the parliamentary process. It was held that the Parliament did not have duty to consult Mikisew during the law-making process. But ‘duty to consult’ was not the only means to give effect to honour of the Crown. The court noted that while an Aboriginal group would not be able to challenge a legislation for non-compliance of duty to consult, other protections such as declaratory relief may be obtained by them.[Chief Steve Courtoreille v. Governor-General in Council, 2018 SCC OnLine Can SC 38, decided on 11-10-2018]

Case BriefsInternational Courts

European Court of Justice: While deciding upon the issue of access to documents drawn up by Parliament which contain information concerning the positions of the institutions on the ongoing co-decision procedures with particular emphasis on the multicolumn tables drawn up in connection with ‘trilogues’, the 5-Judge Bench of the Court headed by M. Van der Woude, President, held that the work of the ‘trilogues’ constitute a decisive stage in the legislative process which entails exemplary adherence to the public’s right to access that work and the strict application of the exceptions provided for in the regulation regarding public access to European Parliament, Council and Commission documents. Thus the European Parliament must grant access, on specific request, to documents relating to ongoing trilogues.

A ‘trilogue’ is an informal tripartite meeting in which the representatives of Parliament, the Council and the Commission take part. The aim of such exchanges is to reach a prompt agreement on a set of amendments acceptable to Parliament and the Council, which must subsequently be approved by those institutions in accordance with their respective internal procedures. The ‘trilogues’ generally contain four columns: the text of the Commission’s legislative proposal; the position of Parliament as well as the amendments that it proposes; the position of the Council and the provisional compromise text or the preliminary positions of the Presidency of Council in relation to the amendments proposed by Parliament. The applicant Emilio De Capitani requested for access to documents drawn up by Parliament or made available to it which contain information concerning the positions of the institutions on ongoing co-decision procedures. The request related, in particular, to the multicolumn tables drawn up in connection with ‘trilogues’. However Parliament refused to disclose the fourth column taking the view that the fourth column of the documents contains provisional compromise texts and preliminary positions of the Presidency of Council, the disclosure of which would seriously undermine the decision-making process of the institution.

Perusing the facts of the case, the General Court observed that fourth column of trilogue tables concern an ongoing legislative procedure and emphasize that the principles of publicity and transparency are inherent to the EU legislative process and that no general presumption of non-disclosure can be upheld on the basis of the nature of a legislative procedure. It was furthermore observed that if citizens are to be able to exercise their democratic rights, then they must be in a position to follow in detail the decision-making process within the institutions taking part in the legislative procedures. The General Court thus annulled the decision of the European Parliament which refused the access of the fourth column of the ‘trilogues’. [Emilio De Capitani v. European Parliament, T-540/15, decided on 22.03.2018]