Canadian Politics Today

It could be a whole lot less traumatic if our governments would refer questions to the Supreme Court of Canada, and do as directed. Reconcile titles, define jurisdictions, share the land as agreed. Fair dealing.

Oct 11, 2018 - 2018 SCC 40 - Mikisew Cree First Nation v. Canada (Governor General in Council) --- Supreme Court rules Ottawa has no duty to consult with Indigenous people before drafting laws

7-2 decision rules against Mikisew Cree First Nation claim that government needed to consult on omnibus bills. 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. 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.

In four separate sets of reasons, the Court went on to consider whether the duty to consult applies to legislative action. A seven-judge majority of the Court held that it does not, confirming that "the development, passage, and enactment of legislation — does not trigger the duty to consult".  The reason for this is two-fold:

- First, the separation of powers protects the law-making process of the legislature from judicial oversight — in the words of Justice Brown, the entire law-making process is an exercise of legislative power that is “immune” from judicial interference. Allowing courts to review how legislatures make laws would offend this important principle.
   
- Second, parliamentary sovereignty and privilege protect the freedom of the legislature to "make or unmake any law it wishes", within the confines of its constitutional authority.

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Crown "duty to consult" does not give Indigenous Groups a veto; respective Supreme Court decisions as:

July 26, 2017 - 2017 SCC 41 - Chippewas of the Thames First Nation v. Enbridge Pipelines Inc.
(para 59) In Carrier Sekani, this Court recognized that “[t]he constitutional dimension of the duty to consult gives rise to a special public interest” which surpasses economic concerns (para. 70). A decision to authorize a project cannot be in the public interest if the Crown’s duty to consult has not been met (Clyde River, at para. 40; Carrier Sekani, at para. 70). Nevertheless, this does not mean that the interests of Indigenous groups cannot be balanced with other interests at the accommodation stage. Indeed, it is for this reason that the duty to consult does not provide Indigenous groups with a “veto” over final Crown decisions (Haida, at para. 48). Rather, proper accommodation “stress[es] the need to balance competing societal interests with Aboriginal and treaty rights” (Haida, at para. 50).

November 18, 2004 - 2004 SCC 73 - Haida Nation v. British Columbia (Minister of Forests)
(para 48) This process does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim.  The Aboriginal “consent” spoken of in Delgamuukw is appropriate only in cases of established rights, and then by no means in every case.  Rather, what is required is a process of balancing interests, of give and take.

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prior member Granny post mentioned the quite dated, 'Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010'... principles from Delgamuukw were restated and summarized in the more current:

June 26, 2014 - 2014 SCC 44 - Tsilhqot'in Nation v British Columbia --- Supreme Court provides testing conditions mechanism by which the Crown can override Indigenous title in the public interest

(para 77) To justify overriding the Aboriginal title-holding group’s wishes on the basis of the broader public good, the government must show:

- (1) that it discharged its procedural duty to consult and accommodate;

- (2) that its actions were backed by a compelling and substantial objective; and

- (3) that the governmental action is consistent with the Crown’s fiduciary obligation to the group