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Supreme Court ruling against duty to consult fails Indigenous peoples in Canada

Image: Dig deeper/Wikimedia Commons

The Supreme Court of Canada has just ruled that federal cabinet ministers do not have a duty to consult with Indigenous peoples before they introduce legislation that might affect their treaty and constitutional rights.

The Mikisew Cree First Nation in Alberta had argued that the Harper government's omnibus bills C-38 and C-45 introduced in 2012 affected their rights on their land and water guaranteed under both Treaty 8 and the Constitution Act.

For example, C-38 removed pipelines and power lines from the Navigable Waters Protection Act, while C-45 significantly reduced the scope of federal protection of lakes and rivers in this country, from 2.5 million to just 159 lakes and rivers.

The Mikisew further argued that they should be consulted on any legislation that could affect their Treaty rights before it was introduced in Parliament.

While Indigenous nations were not consulted on C-38 and C-45 beforehand, Big Oil pushed for these legislative changes and even admitted to a "very long engagement process" with the government.

In today’s ruling, Supreme Court Justice Andromache Karakatsanis writes, "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.”

But "scrutinizing" the law-making process is exactly what is needed when Big Oil exerts its influence to maximize their profits in violation of Indigenous rights.

And Justice Malcolm Rowe commented, "It would encroach on parliamentary privilege." Again, this type of "privilege" is something that should be encroached on.

Adding insult to injury, the court also ruled that the government has an obligation to act honourably and maintain the "honour of the Crown" when drafting legislation that could impact Indigenous peoples in this country.

Given the unacknowledged genocide inflicted on Indigenous peoples through colonization (and the ongoing policies that perpetuate that oppression and dispossession), the notion that there is an "honour of the Crown" strains credibility.

Melody Lepine, the director of government and industry relations for the Mikisew Cree, speaking at a media conference today, stated, "There is no honour. There is no willingness. It has been a complete struggle."

Former Chief Steve Courtoreille added, "It's very sad that this country the  justice system has failed the First Nations again." He also highlighted with respect to the ongoing struggle for their rights, "Mark my words this is not the end of this, it’s only the beginning."

The Mikisew Cree First Nation responded to today's Supreme Court ruling in a media conference that can be seen in full here.

Brent Patterson is a political activist and writer.

Image: Dig deeper/Wikimedia Commons​

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