The Supreme Court has issued a narrow and highly technical decision that, while disappointing to many Indigenous nations, critically does not in any way diminish the fundamental responsibility of legislators to respect and uphold the rights of Indigenous peoples.
In a ruling released yesterday, a majority of five out of seven Supreme Court judges concluded that the specific duty to consult and accommodate does not apply to the work of the legislative branch of government. However, the entire court is in agreement that laws passed by federal, provincial and territorial governments must be consistent with their obligations to uphold the Treaty and other Constitutional rights of Indigenous peoples.
The Supreme Court decision was based on the separation between the legislative and executive (decision-making) functions of government and the fact that the specific rights protection known as the duty to consult was developed in relation to the executive branch.
A dissenting opinion by two of the judges disagreed, concluding instead that the duty to consult is based on the potential for an effect on Indigenous rights and would not be limited to the actions of the executive branch.
The Mikisew Cree had challenged the fact that the previous government of Stephen Harper had not consulted with Indigenous peoples before passing omnibus legislation fundamentally altering the environmental assessment process. That legislation, and the resulting conflicts and repeated judicial rulings overturning associated project approvals, is a prime example of the problems resulting from arbitrary and unilateral imposition of such laws.
The Supreme Court left open the door for Indigenous peoples to challenge rights-violating laws on grounds other than failure to fulfill the duty to consult.
One positive dimension of the ruling is that it provides a clear reminder that government obligations toward Indigenous rights go far beyond the duty to consult, a legal doctrine which has become highly problematic in how it is typically interpreted and applied by governments in Canada, certainly including at the federal level. The UN Declaration on the Rights of Indigenous Peoples calls for collaboration between governments and Indigenous peoples on all matters potentially affecting their rights including the adoption of laws and regulations. The Declaration also requires governments to proceed only on the basis of the free, prior and informed consent of Indigenous peoples.
The recent Supreme Court decision did not comment on the UN Declaration or the protections it provides for the rights of Indigenous peoples.
The UN Declaration provides critical guidance for the interpretation of domestic laws in Canada. Bill C-262, which was adopted by the House of Commons last spring and which is now before the Senate, will require reform of federal laws to bring them into conformity with the requirements of the Declaration. A second bill, Bill C-69, which is also before the Senate will replace the environmental assessment regime passed by the Harper government with new laws acknowledging the federal government’s commitment to implement the UN Declaration.
For more information, or to arrange an interview, please contact:
Lucy Scholey, Amnesty International Canada (English): +1 613-744-7667 ext. 236; lscholey@amnesty.ca
