Analysis: Courts must uphold Indigenous rights when the Crown denies them

House of Commons.

Last week, after the Supreme Court ruled that Parliament does not have to consult Indigenous communities when drafting new laws, CTV’s Don Martin asked: “Don’t Indigenous groups have the opportunity to express their concerns during the committee hearings that normally happen when the government presents new legislation?”

That was a good question, to which the answer is: For the particular legislation that provoked this court case there was no such opportunity.

In 2013, the Mikisew Cree Nation went to court because the Stephen Harper government at that time had used a sneaky, backdoor procedure to push a series of massive, legislative initiatives through Parliament, thus avoiding normal hearings by parliamentary committees.

Harper and his ministers had slipped major changes to fisheries, navigable waters and environmental oversight legislation into the back pages of voluminous omnibus budget implementation bills. Using that tricky manoeuvre they could avoid the messy business of public committee hearings and extended debate in the House of Commons.

It was an entirely unprecedented gambit.

Normally, fisheries, navigable waters and environment bills would go to the appropriate parliamentary committees, where there would be hearings and an opportunity for various groups, including First Nations, to express their views and concerns. 

Budget implementation bills are different sorts of beasts. These bills only come after Parliament passes the budget, which, as a rule, outlines the government’s taxing, borrowing and spending policies in fairly broad strokes.

The purpose of implementation legislation is to put the measures Parliament has passed in the budget into effect. As a rule, such legislation is a matter of housekeeping, not a way to introduce entirely new policies in diverse fields. The finance committee might have a look at such legislation. Other committees do not, and, in the normal course of events, do not need to.

And so when Harper chose to radically change environmental oversight of mega projects and protection for fish and navigable waters, through the fine print of a budget implementation bill, his sole purpose was to enact these highly contentious and major changes with a minimum of scrutiny and debate.

The opposition parties cried foul, of course. But in a majority Parliament the opposition is, it seems, powerless.  The government paid zero heed when NDP MPs pointed out it was proceeding in an arrogant and undemocratic manner. In our parliamentary system the majority rules, at times absolutely, and all too often at the beck and call of the prime minister. That’s what parliamentary sovereignty can amount to.

A section 35 case was born

Enter the Indigenous community.

The Harper government’s stealth changes were a direct attack on Indigenous hunting, fishing and resource-harvesting rights. They would mean increased industrial activity on protected Indigenous territory, bringing increased pollution and destruction of habitat. Indigenous anger at the Harper government’s high handed approach spawned the Idle No More movement.

Fierce public demonstrations were one way for Indigenous people to express their sense of betrayal. But there were also other ways and one of those was through the courts.

After consulting legal experts, a large consensus of First Nations supported the Mikisew Cree Nation when it launched a court case challenging the offending implementation bills.

When the government proposed major legislative changes with a direct impact on First Nations, without even allowing for any Indigenous feedback, the Mikisew’s lawyers argued it was acting contrary to section 35 of the 1982 Constitution. That section, as the courts have interpreted it, guarantees and protects Aboriginal and treaty rights.

It was particularly galling to Indigenous people that representatives of the mining and oil and gas industries had actively lobbied the government to make the contentious changes. And they did so behind closed doors, without any public scrutiny.

Private interests had access to key government decision makers, while the public, including that part of the public most affected ­ – the Indigenous community – had zero opportunity to express its views.

Justin Trudeau’s government promised, prior to the last election, to change Parliament’s rules to make omnibus bills of the sort Harper’s government used with such alacrity a thing of the past. Not only did it fail to do so, the Liberal government resorted to the same tactic itself, as when it created a new infrastructure bank through the budget bill in spring 2017.

Canadians, as a whole, might have to put up with this sort of guff.

We might have to acquiesce when prime ministers act as though the only purpose of the legislative branch, Parliament, is to rubber stamp anything the executive branch proposes. As long as we insist on using a voting system that gives parties with 39 per cent of the vote 100 per cent of the power, we cannot expect better.

Indigenous communities are not, however, in the same position as the rest of us. Even the majority of the Supreme Court recognized, in its ruling of last week, that when Indigenous peoples’ rights and interests are at stake, government must consult them.

The majority of justices put it this way:

“The duty to consult is an obligation that flows from the honour of the Crown, a foundational principle of Aboriginal law which governs the relationship between the Crown and Aboriginal peoples. This duty … ensures that the Crown acts honourably by preventing it from acting unilaterally in ways that undermine section 35 rights.”

Put simply, the Crown (that is, the government) must never act “unilaterally” in a way that could have an adverse impact on Indigenous peoples.

Given that, why did the majority reject the Mikisew case?

The duty-to-consult rule, they said, only binds the executive branch of government, the cabinet, not the legislative branch, Parliament. And, they added, it is not the place of the courts to tell Parliament how to go about its business. Parliament is the master of its own domain.

Canada does not have U.S.-style separation of powers

One gets the impression reading the majority decision that the justices imagined they live in the United States.

In the U.S. there is, indeed, a clear separation between the legislative branch (Congress) from the executive branch (the president and his or her cabinet). The Americans quite accurately describe their system as one of checks and balances, even if it is not working quite as planned these days.

The Canadian system is different. Here, the prime minister and, for the most part, the cabinet ministers, sit in Parliament, together with the other 300-plus MPs and, in practice, the members of the executive tend to dominate and control virtually everything Parliament does.

In her dissenting opinion, Justice Rosalie Abella was aware of that fact. She pointed out that the Crown, in fact, means both Parliament and the cabinet. To that, she added that the Crown is constitutionally obliged to “act honourably” in all its dealings with Indigenous peoples. There is no loophole that allows the Crown to ignore that obligation when it styles itself as a legislature rather than an executive.

Harper was still prime minister, still the chief executive of the government, even when he was at his seat in the House of Commons. The same held true for the members of his cabinet, and the same holds true today for Trudeau and his cabinet.

A Constitution would be meaningless, Abella argued, if the government did not have to respect it seven days a week, 24 hours a day, and whether the leaders of that government were seated in the House of Commons or behind their desks in their offices.

Abella put it this way:

“The honour of the Crown is always at stake in its dealings with Indigenous peoples, whether through the exercise of legislative power or executive authority.”

The court majority did not even make an effort to refute that argument. They simply ignored it.

When this case got under way, the Harper team was in power, and one would normally expect it to vigorously defend itself against the Mikisew Cree complaint. Trudeau, on the other hand, promised a new, less confrontational and more respectful approach to relations with Indigenous peoples.

Trudeau said his government intended to conscientiously consult with Indigenous groups on all matters that might concern them. He never said there were any exceptions to that commitment – as when, for instance, Parliament was considering new legislation.

Why, then, did Trudeau not simply instruct the government’s lawyers to cease objecting to the part of the Mikisew case that affirms the Crown’s obligation to, in all cases, consult Indigenous people when government action might affect them?

Karl Nerenberg has been a journalist and filmmaker for more than 25 years. He is rabble's politics reporter.

Photo source:  House of Commons Flickr

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