rabble blogs are the personal pages of some of Canada's most insightful progressive activists and commentators. All opinions belong to the writer; however, writers are expected to adhere to our guidelines. We welcome new bloggers -- contact us for details.

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

Please chip in to support rabble's election 2019 coverage. Support rabble.ca today for as little as $1 per month!

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​

Help make rabble sustainable. Please consider supporting our work with a monthly donation. Support rabble.ca today for as little as $1 per month!

Thank you for reading this story…

More people are reading rabble.ca than ever and unlike many news organizations, we have never put up a paywall – at rabble we’ve always believed in making our reporting and analysis free to all, while striving to make it sustainable as well. Media isn’t free to produce. rabble’s total budget is likely less than what big corporate media spend on photocopying (we kid you not!) and we do not have any major foundation, sponsor or angel investor. Our main supporters are people and organizations -- like you. This is why we need your help. You are what keep us sustainable.

rabble.ca has staked its existence on you. We live or die on community support -- your support! We get hundreds of thousands of visitors and we believe in them. We believe in you. We believe people will put in what they can for the greater good. We call that sustainable.

So what is the easy answer for us? Depend on a community of visitors who care passionately about media that amplifies the voices of people struggling for change and justice. It really is that simple. When the people who visit rabble care enough to contribute a bit then it works for everyone.

And so we’re asking you if you could make a donation, right now, to help us carry forward on our mission. Make a donation today.


We welcome your comments! rabble.ca embraces a pro-human rights, pro-feminist, anti-racist, queer-positive, anti-imperialist and pro-labour stance, and encourages discussions which develop progressive thought. Our full comment policy can be found here. Learn more about Disqus on rabble.ca and your privacy here. Please keep in mind:


  • Tell the truth and avoid rumours.
  • Add context and background.
  • Report typos and logical fallacies.
  • Be respectful.
  • Respect copyright - link to articles.
  • Stay focused. Bring in-depth commentary to our discussion forum, babble.


  • Use oppressive/offensive language.
  • Libel or defame.
  • Bully or troll.
  • Post spam.
  • Engage trolls. Flag suspect activity instead.