SCOC rules on con­sul­ta­tions

No duty to con­sult Indige­nous groups on fed­eral law-mak­ing: Supreme Court

The Sun Times (Owen Sound) - - NATIONAL NEWS - JIM BRONSKILL AND BOB WE­BER

Fed­eral min­is­ters draft­ing leg­is­la­tion do not have a duty to con­sult Indige­nous groups, the Supreme Court of Canada ruled Thurs­day

In a de­ci­sion in­volv­ing an Al­berta First Na­tion, a ma­jor­ity of the high court said law-mak­ing does not amount to Crown con­duct that trig­gers the deeply en­trenched duty to con­fer with Indige­nous Peo­ples.

The First Na­tion that filed a law­suit in 2013 said the de­ci­sion al­lows gov­ern­ments to ig­nore Indige­nous con­cerns when mak­ing laws that af­fect treaty rights.

“I would en­cour­age the First Na­tions that (on) any leg­is­la­tion that im­pacts our rights, they send a let­ter to the gov­ern­ments say­ing, ‘This leg­is­la­tion doesn’t ap­ply to us,’” said Steve Cour­tor­eille, former chief of Al­berta’s Mikisew Cree First Na­tion.

“If you want to see a fight, then a fight will hap­pen.”

Fed­eral Jus­tice Min­is­ter Jody Wil­son-Ray­bould said the de­ci­sion clar­i­fies is­sues around the duty to con­sult.

“While the court has been clear that the duty to con­sult is not trig­gered in the leg­isla­tive process, it also makes clear that Indige­nous rights must be re­spected, up­held and pro­tected,” she said in a re­lease.

The Mikisew ar­gued that the former Con­ser­va­tive gov­ern­ment should have con­sulted them on changes to Canada’s en­vi­ron­men­tal pro­tec­tion and reg­u­la­tory laws.

Seven Supreme Court judges con­cluded there was no such obli­ga­tion, but they split into three groups in their rea­sons.

Writ­ing on be­half of her­self and two oth­ers, Jus­tice An­dro­mache Karakat­sa­nis said min­is­ters de­vel­op­ing leg­is­la­tion are gen­er­ally pro­tected from over­sight by the courts.

“Rec­og­niz­ing that a duty to con­sult ap­plies dur­ing the law-mak­ing process may re­quire courts to im­prop­erly tres­pass onto the leg­is­la­ture’s do­main,” she wrote.

How­ever, Karakat­sa­nis em­pha­sized that the find­ing does not ab­solve the Crown of its duty to act hon­ourably to­ward Indige­nous Peo­ples or limit the rel­e­vance of con­sti­tu­tional pro­tec­tions.

In ad­di­tion, she sug­gested other reme­dies such as court ac­tion might be avail­able to Indige­nous groups once a law is passed.

Cour­tor­eille said the Mikisew’s ac­tion was in­tended to keep First Na­tions out of the courts and Thurs­day’s rul­ing will force First Na­tions to deal with prob­lems project by project.

Mikisew lawyer Robert Janes called the de­ci­sion a lost chance to avoid such con­flicts.

“The big­gest op­por­tu­nity that’s missed here is to use the duty to con­sult as a tool for ac­tu­ally get­ting First Na­tions to buy in to the pro­cesses that are be­ing cre­ated. Peo­ple feel more ac­cept­ing of pro­cesses that they’ve been in­volved in de­sign­ing,” Janes said.

“Many First Na­tions feel that they’re see­ing a re­mote gov­ern­ment in Ot­tawa that is mak­ing de­ci­sions af­ter hav­ing a few town­hall meet­ings. It’s just go­ing to lead to the same prob­lems we’re hav­ing with cur­rent projects.”

Cour­tor­eille said the Mikisew will turn to in­ter­na­tional bod­ies such as the United Na­tions. He said the court’s de­ci­sion vi­o­lates the UN Dec­la­ra­tion of Rights of Indige­nous Peo­ples, which Canada has signed.

“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.”

The court’s de­ci­sion comes as the fed­eral gov­ern­ment de­bates leg­is­la­tion on re­form­ing the Na­tional En­ergy Board. As well, it’s be­gin­ning a sec­ond round of court-or­dered con­sul­ta­tions on the Trans Moun­tain oil pipe­line ex­pan­sion.

With­out changes to how the rules are made, there is likely to be more con­flict and frus­tra­tion in the fu­ture, said Janes.

“This is the sys­tem that brought us the fi­asco that was North­ern Gate­way. It’s the sys­tem that failed to get En­ergy East ap­proved. It’s the sys­tem that led to the fail­ure of the Kinder Mor­gan project.”

The Fed­eral Court of Ap­peal quashed ap­proval of the Trans Moun­tain project over what it deemed in­ad­e­quate con­sul­ta­tion with Indige­nous groups and fail­ure to prop­erly as­sess the ef­fect of in­creased tanker traf­fic in the wa­ters off Bri­tish Columbia. That con­sul­ta­tion was con­ducted un­der the leg­is­la­tion that the Mikisew had chal­lenged.

Their con­cerns were echoed by other Indige­nous lead­ers.

“First Na­tions main­tain that Canada must en­gage with First Na­tions on any ini­tia­tives that could im­pact our rights,” tweeted Assem­bly of First Na­tions Chief Perry Bel­le­garde.

In a re­lease, the assem­bly’s re­gional chief for Al­berta, Mar­lene Poitras said: “My dis­ap­point­ment to­day is only sur­passed by my deep frus­tra­tion to see a missed op­por­tu­nity for mean­ing­ful in­volve­ment of First Na­tions in the leg­isla­tive process.”

While the court has been clear that the duty to con­sult is not trig­gered in the leg­isla­tive process, it also makes clear that Indige­nous rights must be re­spected, up­held and pro­tected.” Fed­eral Jus­tice Min­is­ter Jody Wil­son-Ray­bould

AM­BER BRACKEN/THE CANA­DIAN PRESS

Chief Archie Waquan, left to right, former Chief Steve Cour­tor­eille, and lead coun­sel Robert Janes Q.C. re­spond to the Supreme Court of Canada’s de­ci­sion on Cour­tor­eille v. Canada in Ed­mon­ton, Al­berta, on Thurs­day. The de­ci­sion de­ter­mined the gov­ern­ment does not have a le­gal duty to con­sult Indige­nous peo­ple on leg­is­la­tion.

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