Supreme Court rules feds have no duty to consult with Indigenous peoples on new laws

Idle No More marching near Ottawa. Photo by Dave Chidley, Canadian Press, from Ottawa Citizen

This morning, the Supreme Court of Canada handed down a ruling that says Canada's lawmakers do not have a duty to consult with Indigenous people before introducing legislation that may affect Aboriginal treaty rights, sidelining Canada’s commitments to reconciliation and UNDRIP by saying that such an obligation would be too onerous.

However, in a 5-4 decision, the court found there is still an obligation on the government to act honourably and maintain the "honour of the Crown" when drafting legislation that may affect Indigenous people and their charter rights. What this means isn’t specifically defined and could result in future legal challenges. 

Today’s ruling overturns an earlier victory by the Mikisew Cree First Nation (MCFN), a nation in northeastern Alberta whose lands and livelihoods have been heavily impacted by tar sands development. They became a signatory to Treaty No. 8 in 1899. MCFN successfully argued to the Federal Court in 2016 that the federal government has a duty to consult them on legislation affecting their constitutionally protected treaty rights by amending regulatory protections for waterways and the environment, threatening their established right to hunt, trap and fish on their traditional territory.

As explained by MCFN’s lawyers in a post about their case, “In 2012, the previous federal government introduced and passed two lengthy omnibus budget bills (Bills C-38 and C-45), which dramatically changed key federal environmental laws including the Canadian Environmental Assessment Act, the Fisheries Act, the Species at Risk Act and the Navigable Waters Protection Act. These included changes to the scope, depth and frequency of federal environmental assessments and protections in Mikisew’s territory and throughout Canada.”

“Concerned with the erosion of important protections for the rights of Indigenous peoples across Canada, the Mikisew Cree First Nation brought a legal challenge to the previous government’s actions for failing to consult on these changes,” the MCFN’s lawyers’ blog post continues. Notably, these omnibus bills also sparked the creation of the Idle No More movement.

The CBC reports, “the First Nation argued it should have been consulted by the government before it drafted the legislation and before it was tabled in Parliament. It asked the court to extend the existing duty to consult constitutional obligations — which, to this point, have only applied to the actions of the executive (cabinet) and regulators — to the policymaking process.”

The Supreme Court ruled that elected Members of Parliament must have separate and autonomous powers to draft and enact legislation.

"The duty to consult is ill-suited for legislative action. It is rarely appropriate for courts to scrutinize the law-making process, which includes the development of legislation by ministers," said Supreme Court Justice Andromache Karakatsanis, who wrote the lead opinion on this case.

"Applying the duty to consult doctrine during the law-making process would lead to significant judicial incursion into the workings of the legislature."

In a press conference and media release, MCFN’s Government and Industry Relations department expressed their disappointment with the court in failing to uphold treaty rights and reconciliation. They stated that they “still expect Canada to live up to the statements made in court that it would consult.” Chief Archie Waquan reiterated that “Mikisew and other First Nations have valuable knowledge, laws and experience to contribute. We should be at the table with government, not reacting after the fact through litigation.” He vowed that this decision will not be the end of Mikisew’s fight to protect its treaty rights.

The Council of Canadians stands in solidarity with the Mikisew Cree First Nation and all Indigenous peoples and believes the federal government not only has a responsibility but a moral obligation to meaningfully consult and listen to the will of First Nations. The federal government also has an obligation to respect the right to Free, Prior, and Informed Consent as set out in the UN Declaration on the Rights of Indigenous Peoples, which the government has signed.