National Post (National Edition)
Lawmakers have no duty to consult Indigenous
Federal ministers drafting legislation do not have a duty to consult Indigenous groups, the Supreme Court of Canada ruled Thursday.
In a decision involving an Alberta First Nation, a majority of the high court said law-making does not amount to Crown conduct that triggers the deeply entrenched duty to confer with Indigenous Peoples.
The ruling helps clarify the steps the federal government must take — and when — in upholding the Crown’s obligation to act honourably in its dealings with Aboriginal groups.
The First Nation that filed a lawsuit in 2013 said the decision allows governments to ignore Indigenous concerns when making laws that affect treaty rights.
“I would encourage the First Nations that (on) any legislation that impacts our rights, they send a letter to the governments saying, ‘This legislation doesn’t apply to us,”’ said Steve Courtoreille, former chief of Alberta’s Mikisew Cree First Nation. “If you want to see a fight, then a fight will happen.”
The Mikisew argued that the former Conservative government should have consulted them on changes to environmental protection and regulatory laws.
Seven Supreme Court judges concluded there was no such obligation, but they split into three groups in their reasons.
Writing on behalf of herself and two others, Justice Andromache Karakatsanis said ministers developing legislation are generally protected from oversight by the courts.
“Recognizing that a duty to consult applies during the law-making process may require courts to improperly trespass onto the legislature’s domain,” she wrote.
However, Karakatsanis emphasized that the finding does not absolve the Crown of its duty to act honourably toward Indigenous Peoples or limit the relevance of constitutional protections.
In addition, she suggested other remedies such as court action might be available to Indigenous groups once a law is passed.
Courtoreille said the Mikisew’s action was intended to keep First Nations out of the courts and Thursday’s ruling will force First Nations to deal with problems project by project.
Mikisew lawyer Robert Janes called the decision a lost chance to avoid such conflicts. “The biggest opportunity that’s missed here is to use the duty to consult as a tool for actually getting First Nations to buy in to the processes that are being created,” Janes said.
Courtoreille said the Mikisew will turn to international bodies such as the United Nations. He said the court’s decision violates the UN Declaration of Rights of Indigenous Peoples, which Canada has signed.
“If you have no faith in the justice system in your country, you have to go somewhere. There’s no hope for us here to have any fair deals. The big battle is coming and it is going to be huge.”