Supreme Court ruling is step backwards
Court’s decision reminiscent of King George’s Royal Proclamation of 1763
IGET asked often: where did it all go wrong?
When did Indigenous and nonIndigenous relationships go awry? How?
One could point to when Christopher Columbus met the Taino people and said “they were a people very poor in everything... They should be good and intelligent servants.”
Or when Jacques Cartier, seeking gold and spices, mistook the word Kanata (“the village”) for the place he arrived on instead of what Indigenous Peoples were trying to explain was the true value of it.
These are good starting places but I think the best example is the 1763 Royal Proclamation, when British King George III looked at North America and pronounced: “Everything is mine.”
It didn’t matter to the king who was there, what they did or how they would be impacted. To him, the land, for the most part, was “empty.”
All that mattered was his dominion over everything.
The king also declared a few other things, like that Indigenous Peoples had certain “rights,” were under his control and had to sell their land to him and move to lands “reserved” for them, but I digress. You get the point.
This was not the first moment the “Crown” made a decision that deeply impacted Indigenous lives without consultation, but it’s arguably the biggest one.
Canada made the Royal Proclamation the law of the land when it became a country in 1867 and now we have treaties, a Governor General and “God Save the Queen.”
The supremacy of the Crown is Canada’s first law. Everything in this country came after.
Speaking of today, this past Thursday the Supreme Court decided in a
7-2 decision that Canadian lawmakers do not have a duty to consult with Indigenous communities before introducing and passing laws that impact them.
The trial came about when the Mikisew Cree First Nation in Alberta took the government to court over two
2012 omnibus budget bills (introduced into law by the former Conservative federal government). Lawyers for Mikisew stated that their client’s constitutionally protected hunting and fishing rights were violated because the omnibus bills removed protections for waterways and the environment. As they argued, Mikisew Cree First Nation should have been consulted and it wasn’t.
The rights the Mikisew Cree relied upon derive from Section 35 of Canada’s 1982 Constitution, which states that the “existing Aboriginal and treaty rights of the Aboriginal Peoples of Canada are hereby recognized and affirmed.”
The problem with Section 35, as I have written before, is that Canada sees Indigenous rights as an “empty box” (to be defined later) and Indigenous Peoples argue these are a “full box” (inherent). This results in an endless, time-consuming and costly march through the judicial system as Indigenous Peoples hire lawyers to fight tooth and nail for every right, all the way to the Supreme Court of Canada. With every Supreme Court victory (and there are many), Indigenous rights are defined inch by inch, with Canadian taxpayers footing the bill.
Over the years, the Supreme Court has mitigated this by using Section 35 to state the Crown has a “duty to consult” First Nations, and Canada is legally required to accommodate First Nations when Canadian laws and policies impact their rights.
If the Miskisew Cree had been sufficiently consulted, this would not only have met the “duty to consult” legal requirement, it would have saved Canada a lot of money.
Only now the Supreme Court says Canada’s “duty to consult” comes into play after a bill becomes law. This means that the legislative branch (a.k.a. Parliament) doesn’t have to wait or worry about what the judicial branch (a.k.a. Supreme Court) will decide on Indigenous rights, they just need to write laws and pass them.
It’s up to the executive branch, which administers the laws Parliament passes, to deal with consultation with Indigenous Peoples.
After the law is passed. Justice Malcolm Rowe, writing in support of the decision, said it would be “highly disruptive” to apply the duty to consult to lawmakers. “It would encroach on parliamentary privilege,” he wrote.
The fact that Canada’s legislative and executive branch are basically the same people — and the Crown is ultimately both — doesn’t matter.
The supremacy of Canada is all that matters.
Things go awry in relationships when one set of people decide everything for another set and — instead of considering them — say sorry later.
This is what went wrong before, and we’re back there again.
Now, Canada has less of a duty to consult then in 1982, when it was recognized Indigenous lands and rights had been trampled on since 1763. While Thursday’s decision said lawmakers have an obligation to maintain the “honour of the Crown,” if past practices are an indication, I’m not holding my breath.
The decision also means First Nations — which have pressing financial needs — will be paying more for lawyers with money that would be better directed to problems such as tainted water, inadequate education and mouldy homes.
The worst part of this, though, is that Canada is more likely then ever now to implement laws that ignore and violate Aboriginal and treaty rights and — after time-consuming marches to the Supreme Court — will have legislation that will be eventually overturned.
The most ironic thing is that Section 35 and the “duty to consult” clause came only after the Supreme Court made decisions in the 1970s to reprimand Canada on their treatment of Indigenous Peoples.
On Thursday, the judicial branch of 2018 undid the work of their older counterparts. What a waste of time, energy and work.
Why, hello 1763. I thought you left with all this talk of reconciliation.
Turns out you’re today.
The Supreme Court of Canada ruled Thursday that federal ministers do not have a duty to consult Indigenous groups when drafting legislation.