The Supreme Court of Canada has decided that lawmakers do not have a constitutional duty to consult Indigenous peoples before introducing legislation.
In documents released this morning, for a case that began in 2012, the Supreme Court ruled against the Mikisew First Nations.
In April 2012, the Mikisew Cree First Nation was not consulted on two bills at any stage in their development or prior to the granting of royal assent. The Mikisew then brought an application for judicial review in Federal Court, arguing that the Crown had a duty to consult them on the development of the legislation, since it had the potential to adversely affect their treaty rights to hunt, trap, and fish under Treaty No. 8.
But the Court ruled that there is no gap in the consultation process as it is, and there is no requirement for the imposition of a duty to consult in the preparation of legislation.
“Indeed, the imposition of such a duty would be contrary to the distinction between the Crown and the legislature,” reads the court document.
“It would offend the separation of powers. It would encroach on parliamentary privilege. It would involve the courts in supervising matters that they have always held back from doing… It would offend foundational constitutional principles and create rather than resolve problems.”
The Court also said that Aboriginal groups aren’t left without a remedy, saying that a duty to consult is not the only means to be involved in the process.
“Simply because the duty to consult doctrine, as it has evolved to regulate executive conduct, is inapplicable in the legislative sphere, does not mean the Crown is absolved of its obligation to conduct itself honourably,” states the document.
“While an Aboriginal group will not be able to challenge legislation on the basis that the legislature had failed to fulfill the duty to consult, other protections may well be recognized in future cases when Aboriginal or treaty rights may be adversely affected by legislation, such as declaratory relief.”