The Supreme Court of Canada has ruled that the federal government has no obligation to consult First Nations when drafting legislation.
Seven out of nine judges came to the conclusion on Thursday, in a long battle originally set forth by the Mikisew Cree First Nation’s lawsuit in 2013.
The Mikisew say their struggle is not over and they expect Canada to continue to consult with First Nations in all decisions.
“Mikisew and other First Nations have valuable knowledge, laws and experience to contribute,” said Mikisew Chief Archie Waquan in a statement on Thursday. “We should be at the table with the government, not reacting after the fact through litigation. The Crown has said they could and would consult and we will hold them to that promise.”
Some point to the Royal Proclamation of 1763, which says the government has a duty to consult with Indigenous peoples. However, this only applies to
treaty rights, and the Mikisew want that applied to legislation.
Some of the Supreme Court judges agree that consultation is still important. Five of the judges from Thursday’s ruling said the government must still act honourably when consulting with Indigenous people, but when it comes down to enacting legislation, the waters become muddier.
Minister of Justice Jody Wilson Raybould issued a statement on Thursday echoing that sentiment, saying the government wants to work with First Nations but how that plays out is more intricate.
“While the court has been clear that the duty to consult is not triggered in the legislative process, it also makes clear that Indigenous rights must be respected, upheld and protected,” the statement read. “Our Government remains wholly committed to respecting our Constitution and respecting and upholding Indigenous rights, and will continue to work collaboratively with Indigenous peoples on matters that directly and significantly affect them.”
The court case began when the Mikisew challenged the Harper government’s introduction of two 2012 omnibus bills that drastically altered several environmental acts, including the Fisheries Act, the Species at Risk Act, the Navigable Waters Protection Act, and the Canadian Environmental Assessment Act.
They brought their argument in a lawsuit against the government in 2013.
“The lack on 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,” said Robert Janes, Mikisew’s legal counsel, in a statement on Thursday.
The Mikisew say they passed these laws without consultation with affected First Nations. The bills reduced government oversight, which the Mikisew says overstepped boundaries guaranteed under Treaty 8, which guaranteed the First Nations the right to hunt, trap and fish in exchange for their land.
However, in 2016, the Federal Court of Appeal overturned their argument that the government has a legally binding duty to consult with First Nations. The Mikisew then took their case to the Supreme Court of Canada, which resulted in Thursday’s decision.
First Nations Response
Marlene Poitras, Assembly of First Nations’ Regional Chief of Alberta, says she was deeply disappointed and frustrated with the decision.
“[This is] a missed opportunity for meaningful involvement of First Nations in the legislative process, a process that can have deep and lasting impacts on our peoples, our lands, our waters, and our Treaty and Inherent Rights,” she said in a statement released on Thursday.
Assembly of First Nations Chief Perry Bellegarde also expressed disappointment on the decision but says he wants to continue to lift up the Mikisew Cree First Nation for their diligence.
“FIrst Nations maintain that Canada must engage with First Nations on any initiatives that could impact our rights,” he said on social media. “The honour of the Crown must be ensured and maintained.”