Indigenous leaders shocked by court decision on consultation

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This article was published 11/10/2018 (258 days ago), so information in it may no longer be current.

Manitoba First Nations and Métis leaders say they are shocked and disappointed by a Supreme Court of Canada decision Thursday that said the federal government does not have a duty to consult with Indigenous people before introducing laws.

"We are absolutely shocked by this decision today," said Grand Chief of the Assembly of Manitoba Chiefs Arlen Dumas in a news release.

In a majority 7-2 ruling involving the Mikisew Cree First Nation in Alberta, the high court said law-making does not amount to Crown conduct that triggers the deeply entrenched duty to confer with Indigenous peoples.

The Mikisew filed a lawsuit in 2013, arguing 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.

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.

Dumas said the federal government’s legal arguments in the case flew in the face of Prime Minister Justin Trudeau’s promise of recognizing the rights of Indigenous people.

The news release from Dumas said the AMC would continue to advocate for the rights of its First Nations when it comes to new laws that may impact them.

"I want to express my gratitude to the people of Mikisew Cree First Nation in Alberta for taking this step and fighting to protect our constitutionally protected treaty rights over the last several years," he said.

Manitoba Metis Federation President David Chartrand said while disappointing, it is understandable that the court should place limits on its involvement in the legislative process.

"It is encouraging that a majority of the court opened the door for legal remedies to ensure Indigenous rights, and the honour of the Crown, are protected when legislation impacting those rights is passed or enacted," he said in a news release.

"The lesson we should learn is that legislation affecting the constitutionally protected rights of the Métis Nation, First Nations and Inuit should not be buried by governments in omnibus bills. Legislation can and will be taken through the courts, unless the Crown acts honourably by engaging in meaningful consultation and accommodation as part of the legislative process."

In a statement, Federal Justice Minister Jody Wilson-Raybould said the decision clarifies the government’s 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.

"Our Government remains wholly committed to respecting our Constitution and respecting and upholding Indigenous rights, and will continue to work collaboratively with Indigenous peoples on matters that directly and significantly affect them."

» mlee@brandonsun.com, with files from The Canadian Press

» Twitter: @mtaylorlee