Manitoba Metis Federation Reacts to Supreme Court of Canada Decision on Duty to Consult
October 11, 2018
Winnipeg, MB – In response to today’s Supreme Court of Canada decision in Chief Courtereille and Mikisew Cree First Nation v. Governor General in Council et al., Manitoba Metis Federation (MMF) President David Chartrand expressed disappointment while also noting that a majority of the court affirmed legal remedies are available to Indigenous people when legislation infringes upon Indigenous rights.
“While it is disappointing the court did not confirm that a duty to consult applies to legislative action, it is understandable that the Court found it must place limits on its involvement in legislative process,” said President Chartrand. “It is encouraging that a majority of the court opened the door for legal remedies to ensure Indigenous rights, and the honour of the Crown, are protected when legislation impacting those rights is passed or enacted. The lesson we should learn is that legislation affecting the constitutionally-protected rights of the Me%u0301tis Nation, First Nations and Inuit should not be buried by governments in omnibus bills. Legislation can and will be taken through the courts, unless the Crown acts honourably by engaging in meaningful consultation and accommodation as part of the legislative process.”
The Mikisew case challenged legislative changes made by the former Harper Government to Canada’s environmental protection laws and regulatory scheme. These changes severely limited or removed protections relied upon by the Mikisew Cree to protect their traditional territory and treaty rights. The Harper Government brought in these changes as part of an omnibus bill, without notifying or consulting the Mikisew Cree First Nation or any Indigenous peoples whose rights were potentially impacted by these changes. The First Nation challenged these legislative changes based on the Crown’s duty to consult Indigenous groups on actions that have the potential to adversely affect Indigenous rights.
In a decision released this morning, a 7-to-2 majority of the Supreme Court of Canada ruled that the Crown’s duty to consult does not apply to legislative action undertaken by Parliament or the legislatures. In effect, these judges immunized legislators from the Crown’s duty to consult during the development and passage of laws, even though the duty to consult is constitutional in nature and should apply to all branches of government. Two dissenting judges—Justices Abella and Martin—held that the Crown’s duty does apply to legislative actions, which reflected the submissions of the Mikisew Cree First Nation as well as a majority of the Indigenous governments who intervened in the case, including the MMF. These two judges held that the separation of powers and parliamentary privilege cannot immunize the law-making process from judicial scrutiny to assess adequate consultation with Indigenous peoples. A 5-to-4 majority of the court recognized that there is a notable gap in the protections afforded to Indigenous rights during the legislative process. This may require “other legal protections” to be recognized by the courts in the future because the Crown cannot be “absolved of its obligation to conduct itself honourably.”
Believe in Yourself; Believe in Métis.
The Manitoba Metis Federation (MMF) is the official democratic and self-governing political representative for the Métis Nation’s Manitoba Métis Community. The Manitoba Métis were Canada’s negotiating partner in Confederation and the Founders of the Province of Manitoba.
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Manitoba Metis Federation
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