Supreme Court ruling on consultation with Indigenous peoples does not dramatically change current state of affairs
On Oct. 11, the Supreme Court ruled that the federal government is not obligated to consult with First Nations when drafting legislation that may affect their treaty rights.
According to the Mikisew Cree, who first took the federal government to court in 2013, the Harper government infringed on their treaty and land rights when the Navigation Protection Act (previously known as the Navigable Waters Protection Act) was amended in 2012.
For example, the Muskeg and Clearwater Rivers, waterways that are important culturally and for infrastructure purposes to the Mikisew Cree, were removed from a list of protected waterways. The Mikisew Cree felt they should have been consulted before those amendments were made.
The Supreme Court ruled otherwise, but their decision may not be set in stone.
“It would be incorrect to say that this particular ruling marks the end of this legal issue,” says Rachel Yacaaʔał George, Ahousaht of the Nuu-chah-nulth Nation.
“This decision put something into writing that was always the case.”
George is a PhD Candidate in UVic’s Indigenous Governance program and a sessional lecturer in Political Science.
“I believe that we can anticipate that this issue will continue to be addressed both within Canadian courts and internationally, as the Mikisew Cree have suggested they will bring this to international bodies,” says George.
Thanks to a legacy of court cases, the duty to consult First Nations already exists for executive action, like constructing a dam or pipeline, but the Mikisew Cree wanted it to extend to the drafting of legislation.
“What is concerning about this ruling is that it allows for the continuation of the paternalistic relationship the Government of Canada assumes over Indigenous Nations,” George says.
“This ruling upholds the status quo … Instead of ‘proactive’ consultation, [it] potentially allows for ‘reactive’ consultation. If we understand that rebuilding trust must be inherent in the reconciliation process, this is a clear step in the wrong direction.”
But according to UVic law student Steven Faryna, who is vice president of the Métis Nation of Greater Victoria and advocacy coordinator of the Native Students Union, the same paternalistic relationship would have been fueled by an alternate decision.
“I think had this decision gone the other way, it would have entrenched Indigenous people further into the Canadian Constitution,” he says.
Faryna says that consultation is only a small part of the picture, and that the bigger issue of realizing Indigenous sovereignty would have been clouded even more if the court had ruled differently.
But he also agrees with George that this ruling upholds the status quo.
“This ruling is a push back against meaningful reconciliation, and specifically Article 19 of UNDRIP.”
“This decision put something into writing that was always the case,” says Faryna. “This decision hasn’t created a new situation because governments were never consulting First Nations [when] putting in legislation before this decision happened. So its not changing much as far as treaty rights are concerned.”
Joni Olsen, elected six-times to the Tsartlip First Nation council, holds a different opinion, saying that this decision lays the foundation for a new era in Canadian lawmaking.
“I think that it’s just setting the stage for what’s going to happen in the next couple of months, the new laws that they are going to try and enact under the legislative authority of the Constitution of Canada. They’re going to try and change Section 35,” she says.
Section 35 of the Constitution Act, 1982 recognizes and affirms existing aboriginal and treaty rights in Canada, and it allows rights and title to be heard in the Supreme Court of Canada.
Both Olsen and George see the decision as a step backwards when it comes to reconciliation.
“To me that’s not real reconciliation and [this decision] doesn’t change the structure in Canada, which is what they [Indigenous peoples] are asking for,” Olsen says.
“It seems clear in the positioning of some of the judges that this ruling is a push back against meaningful reconciliation, and specifically Article 19 of UNDRIP,” says George.
Article 19 specifies that states must consult with Indigenous peoples and “obtain their free, prior, and informed consent before adopting and implementing legislative or administrative measures that may affect them.”
UNDRIP (the UN Declaration on the Rights of Indigenous Peoples) was officially adopted by the Canadian government in 2016.
But Faryna believes that when it comes to the justice system framework, this decision was rightly founded.
“[The decision] was very much in line with Canadian law. For them to have decided otherwise I think would have been contrary to the Constitution.”
“[The decision] was very much in line with Canadian law. For them to have decided otherwise I think would have been contrary to the Constitution, and if you’re going to have a constitution you should follow it, which makes a lot of Indigenous people unhappy,” he said, adding, “I don’t necessarily agree with the whole state of things and the constitution itself, but as far as that case is concerned you get what you’re working with … I think it’s a good lesson for everybody to actually follow your own rules.”
The second part of the ruling states that, while the Government has no constitutional obligation to consult with First Nations when drafting legislation, they must still uphold “the honour of the Crown.” For Olsen and Faryna, it is doubtful whether this has ever been the case.
“The honour of the Crown hasn’t been held within treaties across Canada,” says Olsen. “The honour of the Crown isn’t just in the new laws that they’re making, they should be honouring their prior agreements.”
For Faryna, whether or not there is a constitutional obligation to consult, Indigenous rights are Indigenous rights.
“Indigenous peoples’ rights come from their own nations. That’s how nations work and that’s how constitutions work,” he says. “Countries don’t have constitutions that give other nations rights. That’s not how Canada works with any other nation on the planet.”
Steven Faryna would like to emphasize that all of his opinions are his own and do not come from any position or office that he holds.