Land­mark cases po­ten­tial turn­ing points for Indige­nous Peo­ples

Court made de­ci­sion on duty to con­sult Indige­nous peo­ples, re­served Gladue de­ci­sion

StarMetro Vancouver - - CANADA - OMAR MOSLEH Read the full story at thes­tar.com/ed­mon­ton

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.

AM­BER BRACKEN/THE CANA­DIAN PRESS

For­mer chief Steve Cour­tor­eille with Chief Archie Waquan re­spond to the Supreme Court of Canada’s de­ci­sion on Cour­tor­eille v. Canada on Thurs­day.

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