Author Topic: Supreme Court rules Ottawa has no duty to consult with Indigenous people before  (Read 1251 times)

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Offline FJAG

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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

John Paul Tasker · CBC News · Posted: Oct 11, 2018 9:49 AM ET | Last Updated: October 11

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. . . .

Full article here: https://www.cbc.ca/news/politics/tasker-indigenous-rights-consultation-parliament-1.4858321

Full decision here: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17288/index.do

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Offline Larry Strong

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Is this good? I would appreciate your view.....


Sincerely
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Offline FJAG

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It is good if you, like me, believe that the courts should not interfere in the process of legislative drafting. The majority's rationale is summarized in the headnote:

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  The duty to consult doctrine 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. Longstanding constitutional principles underlie this reluctance to supervise the law‑making process. The separation of powers is an essential feature of Canada’s Constitution. It recognizes that each branch of government will be unable to fulfill its role if it is unduly interfered with by the others. Recognizing that a duty to consult applies during the law‑making process may require courts to improperly trespass onto the legislature’s domain. Parliamentary sovereignty mandates that the legislature can make or unmake any law it wishes, within the confines of its constitutional authority. Recognizing that the elected legislature has specific consultation obligations may constrain it. Parliamentary privilege also generally prevents courts from enforcing procedural constraints on the parliamentary process. Applying the duty to consult doctrine during the law‑making process would lead to significant judicial incursion into the workings of the legislature.

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Offline Colin P

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The government can make laws and enact them with little in the way of consultation with anyone if they choose, but will pay a price later. Normally though, there are quite a few ways to influence laws, during the public input phases both before and after the first reading, presenting at committee, writing MP's, civil protests, petitions, etc. What they really want is "special access and treatment" when it comes to this.