Supreme Court says Crown has no duty to consult when making laws, but must act honourably - APTN NewsAPTN News

Supreme Court says Crown has no duty to consult when making laws, but must act honourably

Justin Brake
The Supreme Court of Canada issued a landmark ruling Thursday that Canada does not have a duty to consult Indigenous peoples when making laws that could impact treaty rights.

In a 7-2 ruling, the court maintains that while the duty to consult applies to the federal government’s executive branch, the legislative branch of government is not constitutionally bound to consult Indigenous peoples during the law-making process.

It is only after laws are made that the government has a duty to consult Indigenous peoples on matters that could negatively impact their treaty rights.

The case was brought to the Supreme Court by Mikisew Cree First Nation in Alberta, which in 2013 challenged the Harper Government’s 2012 omnibus legislation that, Mikisew Chief Steve Courtoreille argued, could impact their treaty rights to hunt, trap and fish in Treaty 8 territory.

The Harper government’s significant amendments to the Fisheries Act, Species at Risk Act and the Navigable Waters Act triggered the Indigenous-led Idle No More movement.

Mikisew First Nation asked the Federal Court of Canada to review the bills, declare the government should have consulted with them first, and block the new laws.

The federal court sided with Mikisew, but the Federal Court of Appeal later said the federal court did not have the jurisdiction to hear the case.

In its ruling the court of appeal said the federal court could only hear challenges to existing legislation, not laws that are in the process of being developed.

All nine supreme court judges agreed that the federal court should not have the power to rule on matters pertaining to the legislative branch of government.

Seven judges agreed that the Crown does not have a duty to consult during the legislative process, but five argued both the executive branch of government and Parliament have a constitutional duty to uphold the honour of the Crown.

Dissenting Justice Rosalie Silberman Abella writes in the decision that the Crown ought to have a duty to consult Indigenous peoples when making laws that might adversely affect them since the honour of the Crown “governs the relationship between the government of Canada and Indigenous people.

“This obligation of honour gives rise to a duty to consult and accommodate that applies to all contemplated government conduct with the potential to adversely impact asserted or established Aboriginal and treaty rights, including, in my view, legislative action.”

Justice Abella says what matters is the impact of government action on Indigenous peoples, not which branch of government caused the potential for harm.

But while most judges agreed that the honour of the Crown applies to both the legislative and executive branches of government, seven of nine argued that the duty to consult does not apply to Parliament, the legislative branch.

Justice Andromache Karakatsanis, in the decision, wrote that the “duty to consult doctrine is ill-suited for legislative action,” citing the separation of powers between Parliament and the executive branch as an overriding constitutional principle, as well as parliamentary privilege, which “demonstrates that the law-making process is largely beyond the reach of judicial interference.”

Karakatsanis did say, however, that the duty to consult wasn’t the only possible way for the Mikisew to protect their constitutional rights and that the Crown, constitutionally bound to act honourably, could open other avenues for Indigenous peoples to challenge legislation that may adversely impact Aboriginal or treaty rights.

“The duty to consult doctrine does not apply to the legislature,” she wrote.

“However, if others forms of recourse are available, the extent of any consultation may well be a relevant consideration…when assessing whether the enactment is consistent with constitutional principles.”

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5 Responses to “Supreme Court says Crown has no duty to consult when making laws, but must act honourably”

    Victor Wood October 14, 2018 at 5:47 pm #

    As aboriginal people, if we want to keep up with the change, we need to roll with the change, aboriginals live in a modern world now. We have to get on the same boat as the people who make these changes, we don’t have enough aboriginal people (or we don’t have any at all) in that boat where they make these laws and pass these laws and they don’t consult the aboriginal population. The aboriginal people are the last people to find out about these new laws, like (ie.)hunting laws. I hate to say this, our great-great-grandfathers did not understand most of what the government agencies were talking about when they negotiate for the peace treaty agreement. Most of them could not speak or write english; to properly make a document that was that would clearly identify the aboriginal peoples needs and issues. It was all one- sided, what the government wanted, their needs and issues. Now we have a chance to do something about it, get more aboriginal people involved in the political arena. We have just a few, and I want to say thank-you to these people that are already working in the governing system of Canada. you make me proud, that you can achieve this (ie.) Judy K. MLA.

    Hugh Culliton October 12, 2018 at 10:11 am #

    I am extremely disappointed with the SCC.This blatant act of colonialism, one that demonstrates clearly (like we needed another example) that – once again – when it comes to making money, the rights of First Nations peoples enshrined in the treaties signed between the Canadian government and the first inhabitants of Turtle Island, ain’t worth the phucking paper they’re printed on.

    4Land and Water October 12, 2018 at 4:47 am #

    The courts have it wrong!! In the white world it’s about lies and betrayal not the truth and honour! That is how this court of appeal once again ‘got it wrong!’

    Becuz our Indigenous Rights are constitutionally PROTECTED as said above the govt must act honourably – the govt must first constitutionally protect our Indigenous Rights so that means – – EVEN BEFORE THEY CARRY ON IN ANY ACT – including the act of law making!!!
    It is also about the international standards of FPIC (Free, Prior & Informed Consent) and we have the right to make laws and uphold the laws of land and waters ….

    Plus the simple fact that Indigenous people’s who had participated in ‘Peace and Friendship’ treaties – the historic treaties are about the simple law of the land where we are to continue to protect Mother Earth and live together in the way our ancestors taught us – living in harmony with Mother Earth and our neighbors – by working respectfully together and each step we take together – nomatter who you are – we continue to respect and honour Mother Earth for all time and for 7+ generations ahead – for those yet unborn –
    For us, in BC and Tsilhqot’in we have not discussed or entered into treaty!
    This is the opportunity for our Nation to step up and set the record straight as the June 26, 2014 SCC most signicant WIN declaring Title to more than 1750 kilometres of our territory, since then the Tsilhqot’in have been working ‘honourably’ with the two govts who assumed jurisdiction over our territories, and they continue to deal with all kinds of lies and betrayal …. example TML (Taseko mines limited) and the twice federally denied copper gold mine proposal… and yet our people are faced with the threat of B.C. approved exploration on a twice dead project.

    For the modern day treaties bctc it is about benefit to the govt … that does not make it right.

    For our teachings that have been passed on to us by our ancestors – there are laws of the land and water that cannot be created, admended, or otherwise messed with – it is throughout the world – through the Indigenous people’s! It is to protect Mother Earth first and formost for our future generations!

    The govt and their imposed processes change to their benefits and industry benefit – we watch this all the time – laws in omnibus’ are pushed thru at high speeds and when it comes to protecting our children and families from Govt themselves and Indigenous children and families the laws can’t be changed even in the face of dying children in ministry care —as well in the fight for justice of cold blooded murder our children don’t matter and there is no justice +++ when the govt’s court makes rulings in favour of Indigenous protected rights and Title Govt can’t find mandate to Implement! – so once again I say as we will continue fight for our future generations – HOLD YOUR GOVERNMENTS ACCOUNTABLE! Please and thank you. For Mother Earth, For our future generations, and For the good of ALL!

    Betty Pittman October 11, 2018 at 8:03 pm #

    what a bizarre ruling—it will cost all of us in so many unnecessary ways as short sighted politicians create laws to be challenged & struck down….so colonial in its response….my God its 2018 — when will we get with the program of human rights & kindness….

    Kicking Bird October 11, 2018 at 6:29 pm #

    The supreme court of Canada has let aboriginal people down. In hearing the case they set a dangerous precedent and have thrown any aboriginal constitutional rights out the window. There is no protection for native people in the charter of rights, they may as well just remove the consultation clause, and section 35 altogether. They go on to explain that the courts should not decide the legislative branch of parliment, but the reality of it is that aboriginal people are not represented by any branch of government at this point in time or in the probable future anyway. So how do we proceed to stop the government or companies from abusing the land or slowly stripping our rights away… you can’t. With the changing demographic and incoming migrants, we will see a downward change in how the country deals with issues that involve aborinal peoples, because they won’t understand, as curriculms that were being changed to include our history are now being removed again, or are completely falsified. Good luck, my thoughts are with you all. Bama pi minwa gwapmin.