Supreme Court Rules Legislators Need Not Consult Indigenous People

Edited by Sophia Savva

The recently terminated Supreme Court case was a modern reenactment of the centuries of conflict between the First Nations and the “newcomers”. On October 11, 2018, the Supreme Court of Canada ruled that Canadian legislators are not obligated to consult with the First Nations when proposing bills that might affect their constitutional treaty rights. While the Parliament is relieved to retain their sovereignty and efficiency, the First Nations feel that once again, their minority voice has been drowned out and disregarded. 

Timeline of Events

According to the Supreme Court of Canada’s case dossier, in 2012, the Former Minister of Finance, Jim Flaherty, introduced the Jobs, Growth and Long-Term Prosperity Act. This bill promises to alter the Navigable Waters Act and the Canadian Environmental Assessment Act. However, Chief Steve Courtoreille of the Mikisew Cree First Nation felt the Act to have the potential of impacting their constitutional hunting and fishing rights. In 2013, he filed for judicial review of the Crown’s legislative actions, requesting the Court to grant First Nations the right to be consulted with pre-bill proposal and to stop the processing of the 2012 Act. 

The 2015 ruling of the Federal Court of Canada sided in favour with Courtoreille and declared that before proposing the bill, the Crown have the duty to inform First Nations and provide them with opportunities to make submissions. The Crown disagreed and appealed the decision to the Federal Court of Appeal in 2016, which then ruled in favour of the Crown. The judges reasoned that subjecting legislators to judicial review and forcing consultation responsibilities on them violate parliamentary privilege and the separation of powers. Finally, Courtoreille too appealed this decision to the Supreme Court of Canada. In 2018, the Court’s 7-2 decision dismissed the appeal and again ruled in favour of the Crown.

The Reasoning of Both Sides

The Crown

The strongest argumentation on the side of the government is that according to the Federal Courts Act, it is outside of the Federal Court’s jurisdiction to review and interfere with legislative actions like Ministers’ bill proposals. Furthermore, consultation obligations would further involve the judicial system in the legislative branch, upsetting the balance of power between the branches of government. As well, the same obligations would dramatically slow down legislative processes. These three points were synthesized by the Supreme Court Justice Malcolm Rowe’s rationale: “It would encroach on parliamentary privilege. It would involve the courts in supervising matters that they have always held back from doing. It would offend foundational constitutional principles and create rather than solve problems.”

The Mikisew 

The First Nations argue that while consultation during the legislative process would be constructive and proactive, challenging passed legislation through courts would be lengthy and costly. To prove that consultation while the law is being executed is inefficient, they listed the Trans Mountain pipeline expansion project as an example. A month ago in September, the Federal Court of Appeal revoked the pipeline’s construction permit because the Crown consultation team’s response to First Nation concerns was lacking. What’s more, the First Nations protest that they could have contributed to the environmental protection of all Canadians with their knowledge and experience. At an Edmonton press conference, Chief Archie Waquan of the Mikisew tribe stated that, “What we want is to make sure we’re part of the Canadian mosaic. To people listening: give us a chance to be part of your society. Let us benefit alongside you. Let’s walk shoulder to shoulder, hand in hand.”

This was a fight between the First Nations and the Canadian government, as well as a conflict between minority interests and majority proceedings. The First Nations have declared that “this is not the end”. Indeed, although only time will reveal who the next victor of the constitutional battle will be, the tension between progressive equity and traditional democracy has just begun. 

• first nations