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.

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