Supreme Court rules feds have no duty to consult Indigenous groups when making laws

Law-making does not amount to Crown conduct that triggers the deeply entrenched duty to confer with Indigenous Peoples

Federal ministers drafting legislation do not have a duty to consult Indigenous groups, the Supreme Court of Canada ruled Thursday

In a decision involving an Alberta First Nation, a majority of the high court said law-making does not amount to Crown conduct that triggers the deeply entrenched duty to confer with Indigenous Peoples.

The ruling helps clarify the steps the federal government must take — and when — in upholding the Crown’s obligation to act honourably in its dealings with Aboriginal groups.

The First Nation that filed a lawsuit in 2013 said the decision allows governments to ignore Indigenous concerns when making laws that affect treaty rights.

“I would encourage the First Nations that (on) any legislation that impacts our rights, they send a letter to the governments saying, ‘This legislation doesn’t apply to us,’” said Steve Courtoreille, former chief of Alberta’s Mikisew Cree First Nation.

“If you want to see a fight, then a fight will happen.”

RELATED: Indigenous groups still want to buy stake in Trans Mountain after court setback

The Mikisew argued that 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, but they split into three groups in their reasons.

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.

Courtoreille said the Mikisew’s action was intended to keep First Nations out of the courts and Thursday’s ruling will force First Nations to deal with problems project by project.

Mikisew lawyer Robert Janes called the decision a lost chance to avoid such conflicts.

“The biggest opportunity that’s missed here is to use the duty to consult as a tool for actually getting First Nations to buy in to the processes that are being created. People feel more accepting of processes that they’ve been involved in designing,” Janes said.

RELATED: First Nation sues B.C., feds, owner of tug that spilled 100K litres of diesel

“Many First Nations feel that they’re seeing a remote government in Ottawa that is making decisions after having a few town-hall meetings. It’s just going to lead to the same problems we’re having with current projects.”

Courtoreille said the Mikisew will turn to international bodies such as the United Nations. He said the court’s decision violates the UN Declaration of Rights of Indigenous Peoples, which Canada has signed.

“If you have no faith in the justice system in your country, you have to go somewhere. There’s no hope for us here to have any fair deals. The big battle is coming and it is going to be huge.”

The court’s decision comes as the federal government debates legislation on reforming the National Energy Board. As well, it’s beginning a second round of court-ordered consultations on the Trans Mountain oil pipeline expansion.

Without changes to how the rules are made, there is likely to be more conflict and frustration in the future, said Janes.

“This is the system that brought us the fiasco that was Northern Gateway. It’s the system that failed to get Energy East approved. It’s the system that led to the failure of the Kinder Morgan project.”

The Federal Court of Appeal quashed approval of the Trans Mountain project over what it deemed inadequate consultation with Indigenous groups and failure to properly assess the effect of increased tanker traffic in the waters off British Columbia. That consultation was conducted under the legislation that the Mikisew had challenged.

Their concerns were echoed by other Indigenous leaders.

“First Nations maintain that Canada must engage with First Nations on any initiatives that could impact our rights,” tweeted Assembly of First Nations Chief Perry Bellegarde.

In a release, the assembly’s regional chief for Alberta, Marlene Poitras said: “My disappointment today is only surpassed by my deep frustration to see a missed opportunity for meaningful involvement of First Nations in the legislative process.”

Jim Bronskill and Bob Weber, The Canadian Press

Like us on Facebook and follow us on Twitter.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Rain in Sunday forecast for Okanagan-Shuswap

Environment Canada calling for 15-20 millimetres in regions

Arena served Summerland for 26 years

Warm winters meant short ice seasons in early 1950s

Severe thunderstorm watch in effect for Okanagan, Shuswap

Environment Canada is forecasting strong wind gusts, large hail and heavy downpours in parts of the Interior

WorkSafe BC conducted 70 inspections in the Okanagan amid B.C.’s reopening plan

WorkSafe BC has conducted 100 inspections at restaurants across the province since May 19

EDITORIAL: Revisiting alcohol consumption

A proposal to allow alcohol consumption in some public spaces in Penticton deserves consideration

VIDEO: Injured bald eagle rescued in B.C. First Nations community

Bird suspected injured in fight, whisked off to Coquitlam rehab

Toronto Raptors’ Ujiri says conversations about racism can no longer be avoided

Thousands have protested Floyd’s death and repeated police killings of black men across the United States

‘I’m afraid’: Witnesses of wolf attack on senior near Prince Rupert worried about safety

Frank Russ shows where the unprovoked wolf attacked his father

Protesters prepare to rally against racism in front of Vancouver Art Gallery

Rally is in response to the deaths of black Americans and a Toronto woman

PHOTOS: Okanagan residents capture epic lightning show

A look at some of the best shots of the storm on May 30

Big White Ski Resort to offer rebate for pass holders after early closure

Next year’s pass will include a 20 per cent rebate

‘No tick is a good tick’: Canadian Lyme Disease Foundation

The foundation’s president said all ticks that attach to humans and pets can carry various diseases

Protesters rally against anti-black, Indigenous racism in Toronto

Police estimated the crowd to be between 3,500 and 4,000 and said there was no violence

Most Read