No Duty

Supreme Court rules against MCFN in con­sul­ta­tion bat­tle.

Fort McMurray Today - - FRONT PAGE - NI­COLE BERGOT

The fed­eral gov­ern­ment does not have a duty to con­sult with In­dige­nous groups prior to in­tro­duc­ing leg­is­la­tion, Canada’s top court ruled Thurs­day.

But the 7-2 Supreme Court de­ci­sion, end­ing a court chal­lenge launched in 2012 by the Mikisew Cree First Na­tion against two pieces of leg­is­la­tion they ar­gued in­fringed on treaty rights, only strength­ens the re­solve of In­dige­nous groups to be con­sulted prior to new laws be­ing in­tro­duced.

“This is not the end, this is only the be­gin­ning be­cause we’re go­ing to rally,” former Mikisew chief Steve Cour­tor­eille, who ini­ti­ated the 2013 court ac­tion, said at a Thurs­day press con­fer­ence in Ed­mon­ton.

“So what does rec­on­cil­i­a­tion mean to the rest of Canada, to the fed­eral gov­ern­ment? All the nice words are mean­ing­less, don’t mean noth­ing... I ask you to reach out and stand to­gether as we should.”

The Mikisew Cree had ar­gued that two om­nibus bills in­tro­duced in 2012 by the Con­ser­va­tive gov­ern­ment af­fected the band’s treaty rights by chang­ing wa­ter­way and en­vi­ron­ment pro­tec­tions, threat­en­ing its mem­bers’ right to hunt, trap and fish.

The band wants In­dige­nous groups con­sulted prior to the draft­ing of leg­is­la­tion but the fed­eral gov­ern­ment ar­gued that would threaten the role of Par­lia­ment.

“In 2013, Mikisew Cree asked a sim­ple ques­tion, was it right that the gov­ern­ment of Canada could com­pletely over­turn the en­vi­ron­men­tal pro­tec­tion regime that had been in place for decades in favour of regime which re­duced pro­tec­tions changed pro­cesses... with­out even hav­ing the de­cency to have a con­ver­sa­tion with the First Na­tions who were go­ing to be af­fected by this,” said JFK Law Corp.’s Robert Janes, the lawyer who led the court chal­lenge.

“And re­mem­ber, this is the sys­tem that has brought us the fi­asco that was the North­ern Gate­way project, it’s the sys­tem that failed to get En­ergy East ap­proved, it’s the sys­tem that led to the fail­ure of the Kinder Mor­gan project... sadly it’s a sys­tem that has not ad­vanced rec­on­cil­i­a­tion with First Na­tions.”

The court rul­ing, added Janes, means more projects will be derailed.

“Per­haps the bet­ter ap­proach would be to say why not con­sult a the be­gin­ning when the rules are be­ing made, when the laws are be­ing drafted rather than to leave us strug­gling with these fights with each and ev­ery project ... as they are brought for­ward by in­dus­try and prov­inces.”

The rul­ing helps clar­ify the steps the fed­eral gov­ern­ment must take in up­hold­ing the Crown’s obli­ga­tion to act hon­ourably in its deal­ings with Abo­rig­i­nal groups.

As part of the rul­ing, Jus­tice Mal­colm Rowe wrote that the move would “en­croach on par­lia­men­tary priv­i­lege. It would in­volve the courts in su­per­vis­ing mat­ters that they have al­ways held back from do­ing.

“It would of­fend foun­da­tional con­sti­tu­tional prin­ci­ples and create rather than solve prob­lems,” con­cluded Rowe.

But Cour­tor­eille — who ar­rived in Ed­mon­ton Thurs­day morn­ing with high hopes the rul­ing would unan­i­mously fall in the band’s favour — said that First Na­tions women be­hind the 2012 Idle No More move­ment will be in­te­gral to gath­er­ing in­ter­na­tional sup­port for bet­ter In­dige­nous con­sul­ta­tion.

“So what does rec­on­cil­i­a­tion mean to the rest of Canada, to the fed­eral gov­ern­ment? All the nice words are mean­ing­less, don’t mean noth­ing... I ask you to reach out and stand to­gether as we should.

“I’m very sad, very dis­ap­pointed that we have to go in­ter­na­tion­ally to fight this bat­tle if we have to.”

The court’s de­ci­sion comes as the fed­eral gov­ern­ment de­bates leg­is­la­tion on re­form­ing the Na­tional En­ergy Board which is be­gin­ning a sec­ond round of court-or­dered con­sul­ta­tions on Trans Moun­tain pipe­line ex­pan­sion. The Fed­eral Court of Ap­peal quashed ap­proval of the project over what it deemed in­ad­e­quate con­sul­ta­tion with In­dige­nous groups and fail­ure to prop­erly as­sess the ef­fect of in­creased B.C. coast tanker traf­fic.

Mikisew Chief Archie Waquan said while he is a “pro­po­nent of Trans Moun­tain,” proper con­sul­ta­tion with af­fected com­mu­ni­ties like his is non-ne­go­tiable.

“We as In­dige­nous groups or na­tions in Canada al­ways have to prove that we be­long here and in the end it costs a lot of funds to take any­thing to task within the court sys­tem,” said Waquan of the ap­prox­i­mate $500,000 ex­pense of the five-year court bat­tle.

“I’m very dis­ap­pointed but not say­ing this is the end, we have more to ac­com­plish,” said Waquan. “What we want to do is make sure we are part of the Cana­dian mo­saic; let us ben­e­fit along­side you, let us walk shoul­der to shoul­der, hand in hand.”

— With files from The Cana­dian Press


Chief Archie Waquan of the Fort Chipewyan-based Mikisew Cree First Na­tion re­sponds to the Supreme Court of Canada's de­ci­sion on Cour­tor­eille v. Canada in Ed­mon­ton, Al­berta, on Thurs­day, Oct. 11, 2018.

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