Government must recognize treaty rights
In 1982, when section 35 was placed in the Canadian constitution, the feeling in Indian Country was that it gave us the right to go to court.
Section 35 is the famous section that recognizes and affirms existing treaty and Aboriginal rights. But that’s all it says. Our rights have not been defined and instead First Nations have been going to court and winning cases that are defining the scope of our jurisdiction and treaty rights.
But sadly it’s a long, drawn-out, costly process, fraught with danger. That danger was felt this week when the Mikisew Cree from Alberta appealed their case to the Supreme Court.
The case began in response to the omnibus bill that the Harper government put in place in 2012. These budget implementation bills were an affront to democracy because they were more than 400 pages long and made sweeping changes. Bill C-38, for example, abolished 74 pieces of legislation alone.
This was also the genesis of the Idle No More movement. Alarm bells were going off all over Indian Country and the people took their concern to the streets and shopping malls across Canada.
The Mikisew Cree decided to take the case to the courts, stating that the Harper government breached its duty to consult when it presented bills C-38 and C-45 that included environmental legislation that the Cree felt breached the government’s duty to consult.
The case was ruled in the Cree’s favour in federal court but overturned in the court of appeal — and now, the Supreme Court has upheld the appeal court’s decision.
The Supreme Court upheld the lower court’s ruling that the government doesn’t have a legal duty to consult Indigenous groups when developing legislation that might impact treaty and Aboriginal rights.
The news media has framed this decision as a setback for First Nations and, while it wasn’t the decision we wanted, the ruling doesn’t really change anything. We never had a legal right to be consulted when the federal government was drafting legislation.
However, governments have a political and moral responsibility to consult with First Nations when developing legislation that has the potential to have a negative affect on our treaty and Aboriginal rights. Should the federal and provincial governments ignore our rights, it will be at their peril. They will become embroiled in lengthy and expensive court actions where they can’t control the outcome.
The Supreme Court previously ruled a duty to consult exists when a major project is planned; Aboriginal people must have adequate consultation and, where possible, be accommodated.
In the case of the Trans Mountain pipeline, the federal court ruled that Indigenous people were not consulted adequately and the project has been put on pause.
The Supreme Court also upheld the constitutional practice of upholding the honour of the Crown. This important principle is a littleknown practice that exists in the recognition and implementation of our treaty rights.
The principle of the honour of the Crown is that any agreement conducted in the name of the Crown must not besmirch the Sovereign’s good name. The Supreme Court has recognized this principle previously ruling that treaties must be interpreted generously and where ambiguity exists must be interpreted in the favour of the Indigenous party.
This issue is not over. The root of the problem exists with the fact that the federal and provincial governments refuse to recognize First Nations government as a third form of government in Canada. So far they are unwilling to share power and resources with First Nations and continue the colonial relationship embodied in the Indian Act.
According to the treaties and our Aboriginal rights, we maintained the capacity to govern ourselves. In Canada currently, we have two forms of government outlined in the British North America Act. Section 91 and 92 outline the areas of responsibility of the federal government and the provinces.
First Nations government existed prior to Confederation so we have all the responsibilities of the provinces and we can pick and choose federal responsibilities that are to our advantage.
This will take us a long way past a Supreme Court decision that tried to define the scope of the power of our First Nations governments.