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Supreme Court rules Ottawa has no duty to consult with Indigenous people before drafting laws


Canada’s lawmakers do not have a duty to consult with Indigenous people before introducing legislation that might affect constitutionally protected Indigenous and treaty rights, the Supreme Court ruled Thursday.
The decision will be welcomed by the federal government, which has argued such an obligation would be far too onerous and slow down the legislative process considerably.
In its 7-2 decision, the top court has ruled against the Mikisew Cree First Nation in Alberta, which had argued that two omnibus budget bills introduced by the former Conservative federal government in 2012 affected its constitutionally protected treaty rights because they amended regulatory protections for waterways and the environment.
Those amendments, the First Nation argued, reduced government oversight of lands and waters and thus threatened its established right to hunt, trap and fish on their traditional territory. These rights were guaranteed by the Crown when it signed Treaty 8 in 1899, and were enshrined as constitutional rights after the passage of the Constitution Act of 1982.
The First Nation argued it should have been consulted by the government before it drafted the legislation and before it was tabled in Parliament.
It asked the court to extend existing duty to consult obligations — which, to this point, have only applied to executive actions taken by cabinet and regulators — to the policymaking process.
Right now, the Crown typically carries out its obligation to consult with potentially affected First Nations through other means — through the National Energy Board, for example, when a natural resources project could infringe on protected Indigenous rights, or through a Crown consultation team.
For example, before approving the Trans Mountain pipeline expansion, cabinet had a constitutional obligation to consult with Indigenous people along the project’s route. It carried out this work through a Crown consultation team.
In a September ruling, the Federal Court of Appeal ultimately found those efforts were insufficient and quashed the project’s cabinet approvals. To get the stalled project moving again, the Liberal government appointed a former Supreme Court justice to redo the consultation work.
The Mikisew argued that such consultation efforts should be made before any bill that could affect their rights is introduced in Parliament.
Ottawa argued that approach would threaten parliamentary supremacy and undermine the role of Parliament — and the separation of legislative, executive and judicial powers — by subjecting laws that have not yet passed to judicial review.
The majority of the court ruled there is no binding constitutional duty to consult before a law is passed.
«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,» said Supreme Court Justice Andromache Karakatsanis, who wrote the lead opinion on this case.
The court also raised practical concerns: while cabinet ministers could consult before the introduction of legislation, bills can be — and sometimes are — amended by MPs and senators in Parliament. Private members’ bills would not face the same consultation obligations.