‘Dodging A Bullet’

“Canada’s lawmakers do not have a ‘duty to consult’ with ‘indigenous’ {aboriginal} people before introducing legislation that might affect constitutionally-protected ‘indigenous’ {aboriginal} and treaty rights, the Supreme Court ruled Thursday.

“The decision will be welcomed by the federal government, which has argued such an obligation would be far too onerous and slow down the legislative process considerably. 

“Moreover, in a unanimous ruling, the top court said the Federal Court, which initially sided with the Mikisew, did not have the jurisdiction to rule on parliamentary activities or on a bill that has not yet been enacted.

Supreme Court (CANADIAN PRESS – Adrian Wyld)

The court said the legislative process should not be subject to judicial review. The Federal Court has jurisdiction to review the decisions of federal boards, commissions and tribunals, but not the work of the House of Commons or the Senate, the court maintained.

“In its 7-2 decision, the top court has ruled against the Mikisew Cree ‘First Nation’ {a ‘nation’ of 3,169 people} in Alberta, which had argued that two omnibus budget bills introduced by the former ‘Conservative’ federal government in 2012 affected its constitutionally-protected treaty rights because they amended regulatory protections for waterways and the environment.

“Those amendments, the ‘First Nation’ {aboriginal community} argued, reduced government oversight of lands and waters and thus threatened its established right to hunt, trap and fish on their {ancestors claimed} ‘traditional territory’. These rights were guaranteed by the Crown when it signed Treaty 8 in 1899, and were enshrined as constitutional rights after the passage of the Constitution Act of 1982.

The ‘First Nation’ {aboriginal community} 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 existing ‘duty to consult’ obligations — which, to this point, have only applied to executive actions taken by cabinet and regulators — to the policymaking process.

“Right now, the Crown {government} typically carries out its ‘obligation to consult’ with potentially affected ‘First Nations’ {aboriginal communities} through other means — through the National Energy Board, for example, when a natural resources project could infringe on protected ‘indigenous’ {aboriginal} ‘rights’, or through a Crown consultation team.

“For example, before approving the Trans Mountain pipeline expansion, Cabinet had a constitutional obligation to consult with ‘indigenous’ {aboriginal} people along the project’s route. It carried out this work through a Crown consultation team.

“In a September ruling, the Federal Court of Appeal ultimately found those efforts were insufficient and quashed the project’s cabinet approvals. To get the stalled project moving again, the ‘Liberal’ government appointed a former Supreme Court justice to redo the consultation work.

“The Mikisew argued that such consultation efforts should be made before any bill that could affect their rights is introduced in Parliament. Ottawa argued that approach would threaten parliamentary supremacy {! Which is what the aboriginals are after!} and undermine the role of Parliament — and the separation of legislative, executive and judicial powers — by subjecting laws that have not yet passed to judicial review {!}.

The majority of the court ruled there is no binding constitutional duty to consult before a law is passed.

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.” …

“Justice Malcolm Rowe, writing in his own opinion, said it would be “highly disruptive” to Parliament’s work to apply the duty to consult to legislative functions.

It would encroach on parliamentary privilege. It would involve the courts in supervising matters that they have always held back from doing“,
Rowe said.
It would offend foundational constitutional principles and create rather than solve problems.”

“A majority of the justices said ‘indigenous’ {aboriginal} people can pursue other remedies — such as court action — if legislation affects their rights {Thereby enhancing the profits of legal corporations}.

“And yet while the court said there is no duty to consult during the legislative process, 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 could affect ‘indigenous’ {aboriginal} people.

“Aboriginal and treaty rights are protected under Sec. 35 of the Constitution.

“The court did not specify how a government would fulfil its duty to act ‘honourably’, paving the way for future legal challenges to define the practical considerations of this longstanding legal principle {And again providing massive profits for legal corporations}.

“Justice Rosalie Abella was a dissenter on the duty-to-consult ruling. She said the honour of the Crown “infuses the entirety of the government’s relationship with ‘indigenous’ {aboriginal} peoples“, and thus the duty to consult
must apply to all exercises of authority … this includes in my view the enactment of legislation.”

{Ruling so foolishly brings into question her fitness as a judge and yet, what is the recourse for the Canadian people?}

Chief Archie Waquan, former chief Steve Courtoreille and lead counsel Robert Janes Q.C. (Amber Bracken–Canadian Press)

“Robert Janes, the lawyer representing the Mikisew, said his clients were disappointed by the court’s ruling, adding it damaged {one-way} ‘reconciliation’ efforts with the country’s {presumed} ‘original inhabitants’…

“Mikisew Chief Archie Waquan said a decision in the ‘First Nation’s {aboriginal community’s} favour would have ensured ‘indigenous’ {aboriginal} peoples a seat at the table when government is crafting legislation.
{They have representation through their voting in elections – the same as ALL Canadian citizens.}

“Later, at a press conference with reporters in Edmonton, Waquan said the outcome is not what his people were looking for after a “difficult struggle“…”

‘Supreme Court rules Ottawa has no duty to consult with Indigenous people before drafting laws’,
John Paul Tasker, CBC News, Oct, 11, 2018

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