By Vincent Schilling

Indian Country Today

In a 7-2 decision against the Mikisew Cree, Court says government did not need to consult with tribe on omnibus bills

In a decision regarding Courtoreille v. Canada, the Supreme Court of Canada has ruled that Canada’s lawmakers do not have a duty to consult with Indigenous Peoples before introducing legislation in Parliament that might affect Aboriginal and treaty rights.

The decision has been lauded as a ruling that will be embraced by the Canadian federal government, and many lawmakers have called the obligation one that slows down the legislative process.

In a vote of 7-2, Canada’s top court ruled against the Mikisew Cree First Nation in Alberta, who stated two previous omnibus budget bills introduced by the government in 2012 affected their constitutionally-protected treaty rights. The Mikisew Cree First Nation fought the bills because they had amended regulations that had been protecting waterways and the environment.

The Mikisew Cree First Nation had argued that the Canadian government threatened the tribes’ right to hunt, trap and fish on their traditional territory — rights protected by the Crown in accordance with the signed Treaty 8 in 1899, and additional constitutional rights due to the passage of the Constitution Act of 1982.

As described in an article by the CBC, the majority of the court ruled there is no binding constitutional duty to consult before a law is passed.

“The duty to consult is ill-suited for legislative action. It is rarely appropriate for courts to scrutinize the law-making process, which includes the development of legislation by ministers,” said Supreme Court Justice Andromache Karakatsanis to the CBC. “Applying the duty to consult doctrine during the lawmaking process would lead to significant judicial incursion into the workings of the legislature.”

The CBC also included comments from Robert Janes, the lawyer representing the Mikisew, who said his clients were disappointed by the court’s ruling.

“The lack of consultation on these [the Conservative budget bills] led to bad laws, which resulted in failures like the Trans Mountain expansion project and weaker environmental protection for all Canadians,” Janes said to the CBC. “Mikisew and other First Nations have valuable knowledge, laws and experience to contribute,” he said. “The Crown has said they could and would consult and we will hold them to that promise.”

The Mikisew Cree First Nation Chief Archie Waquan says Thursday’s Supreme Court ruling is not the end of the fight. In a press conference, Chief Waquan said “I’m very disappointed, but that’s not saying this is the end. We have more to accomplish.”

The tribe released an official statement on October 11th:

While the Mikisew Cree First Nation is disappointed with the Supreme Court of Canada’s decision today in Courtoreille v. Canada, their struggle to defend their treaty rights continues. Though today’s ruling means provincial and federal governments do not have the duty to consult about legislation threatening First Nation rights, Mikisew expects Canada to live up to the statements made in court that it would consult.

The decision ends Mikisew’s 2013 legal challenge to the previous federal government’s cuts to Canada’s environmental protection laws. Through Bills C-38 and C-45, the Harper government changed the Canadian Environmental Assessment Act, the Fisheries Act, the Species at Risk Act, and the Navigable Waters Protection Act, drastically reducing federal oversight over fish and their habitat, navigable waters, and species at risk. The Bills also reduced the number of projects requiring federal environmental assessments and reduced the scope and depth of assessments for those projects.

“We are very disappointed that the court refused to advance reconciliation with this case,” said Mikisew’s legal counsel, Robert Janes.

“The lack of consultation on these Bills led to bad laws, which resulted in failures like the Trans Mountain Pipeline Expansion Project and weaker environmental protection for all Canadians.” The Harper Government passed these laws without consulting with Mikisew and other affected First Nations. At the Federal Court, Mikisew successfully argued that governments have a legally binding duty to consult First Nations when developing legislation that may impact the rights of First Nations.

After the Federal Court of Appeal overturned the earlier ruling in 2016, Mikisew took its case to the Supreme Court of Canada, which has upheld the Federal Court of Appeal’s decision. Mikisew Chief Archie Waquan said the ruling was a missed opportunity. “Mikisew and other First Nations have valuable knowledge, laws and experience to contribute. We should be at the table with government not reacting after the fact through litigation.” This decision does not end Mikisew’s fight to protect its treaty rights. Chief Waquan noted the decision does not prevent the Crown from actually consulting. “The Crown has said they could and would consult and we will hold them to that promise.”

Follow Indian Country Today’s associate editor and senior correspondent, Vincent Schilling (Akwesasne Mohawk) on Twitter – @VinceSchilling

Email – vschilling@indiancountrytoday.com