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.
Watch below: A northern Alberta First Nation is warning future resource development in Canada could be bogged down by even more protest following a Supreme Court ruling on Thursday. Vinesh Pratap explains.
“If you want to see a fight, then a fight will happen.”
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.
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WATCH: The Supreme Court of Canada has ruled that federal ministers don’t have a duty to consult indigenous groups when drafting legislation. As Vinesh Pratap explains, Alberta’s Mikisew Cree argued the former Conservative government should have consulted them on legislative proposals that would have affected their treaty rights.
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.
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“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.
“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.”
WATCH: Supreme Court rules Ottawa not required to consult Indigenous groups when creating laws
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.”
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