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article imageSupreme Court: Canada's Feds do not have to consult First Nations

By Karen Graham     Oct 11, 2018 in Politics
Ottawa - The Supreme Court of Canada issued its ruling today, saying federal ministers do not have a duty to consult Indigenous groups when drafting legislation, dismissing the appeal of the Mikisew Cree First Nation.
If the ruling had been in the Cree Nation's favor, it would have dramatically altered how laws are made in Canada. The First Nation appeal to the high court dates back to the 2012 Harper-era tabling of two omnibus pieces of legislation (later passed) that changed environmental protections.
The Mikisew argued that the legislation reduced environmental protections in favor of oil sands development, harming their Treaty 8 rights to hunt, fish and trap in northeastern Alberta. The Cree Nation argued the federal government "had a legal duty" to consult with them when developing legislation that would impact on their treaty rights.
All nine of the justices agreed that the appeal needed to be dismissed because the Federal Court below lacked jurisdiction to consider the Mikisew’s application for judicial review: Mikisew Cree First Nation v. Canada (Governor in Council) 2018 SCC 40.
The Supreme Court ruled that according to the Federal Courts Act, the Federal Court can only review decisions by federal boards, commissions and tribunals, and this does not include ministers of the Crown who are developing policies that could become law.
The Federal Courts Act basically stipulates and makes clear the separation of power between the executive and parliamentary branches of government, and the court. This was part and parcel of the ruling handed down today.
However, seven of the nine judges disagreed that legislation that may infringe on First Nation constitutional rights "triggers the duty to consult." In an opinion endorsed by Chief Justice Richard Wagner and Justice Clément Gascon, and Justice Andromache Karakatsanis, it was explained this way: “I conclude that the law-making process — that is the development, passage and enactment of legislation — does not trigger the duty to consult,” she said. “The separation of powers and parliamentary sovereignty dictate that courts should forebear from intervening in the law-making process. Therefore the duty to consult doctrine is ill-suited for government action.”
However, in a proposition agreed with by a five-judge majority, Justice Karakatsanis added: “the constitutional principles — such as the separation of powers and parliamentary sovereignty — that preclude the application of the duty to consult during the legislative process do not absolve the Crown of its duty to act honourably or limit the application of s. 35 [of the Constitution]. While an Aboriginal group will not be able to challenge legislation on the basis that the duty to consult was not fulfilled, other protections may well be recognized in future cases."
More about Canada supreme court, First nations, consultation on legislation, Mikisew Cree First Nation, Environmental concerns