Landmark cases potential turning points for Indigenous Peoples
Court made decision on duty to consult Indigenous peoples, reserved Gladue decision
EDMONTON—THE Supreme Court of Canada heard appeals on two cases with potentially far-reaching implications for the rights of Indigenous peoples in Canada on Thursday.
The Supreme Court issued a ruling in one of the cases: Courtoreille v. Canada.
That case stems from a 2015 lawsuit filed by the Mikisew Cree First Nation, which argued that the former Conservative government should have consulted them when making changes to Canada’s environmental protection and regulatory laws.
On Thursday, the Supreme Court ruled that federal ministers do not have to consult Indigenous groups when drafting legislation because it would interfere with a separation of power and allow the courts to “improperly trespass onto the legislature’s domain.”
The other appeal heard by Canada’s top court relates to an order from the Alberta Court of Appeal in 2015 for a retrial in the case of Cindy Gladue, an Indigenous woman who was found dead in an Edmonton hotel room in 2011.
Although Gladue’s accused killer Bradley Barton was acquitted, the Alberta Court of Appeal found the trial judge erred in allowing evidence relating to Gladue’s sexual history to open the door to racist and sexist stereotypes, which tainted the jury’s deliberations.
During the trial, Gladue was referred to as a “prostitute” 25 times and as a “Native” 26 times.
Barton is appealing the order for a retrial. The Supreme Court of Canada is not expected to decide if there will be a retrial for at least six months.
There were strong reactions to both hearings in Edmonton on Thursday.
At a press conference, former Mikisew Cree First Nation Chief Steve Courtoreille said the court’s ruling will force First Nations to fight projects that affect Indigenous peoples on a case-bycase basis.
He added that the decision violates the UN Declaration on the Rights of Indigenous Peoples.
“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,” Courtoreille said.
The First Nation’s lawyer, Robert Janes, said the ruling is a missed opportunity to create a more harmonious and collaborative relationship with the federal government.
“Many First Nations feel that they’re seeing a remote government in Ottawa that is making decisions after having a few town hall meetings. It’s just going to lead to the same problems we’re having with current projects,” he said, referencing the failed pipeline projects Energy East and Kinder Morgan as examples.
While there is no decision issued from the Gladue hearing, members of Edmonton’s Indigenous community gathered at the steps of Edmonton’s Law Courts to decry the perceived injustices seen in the Gladue trial.
“When the government and the courts and the system does this to our people, it’s sending a message across the land that it’s perfectly OK, that it’s acceptable,” said Kathy Hamelin, a member of the Sixties Scoop Indigenous Society of Alberta and a sexual assault survivor.
Former chief Steve Courtoreille with Chief Archie Waquan respond to the Supreme Court of Canada’s decision on Courtoreille v. Canada on Thursday.