Supreme Court case could lead to First Nations role in law-making

The government says more consultation while making laws is too onerous

The Supreme Court of Canada is to begin hearings Monday in an appeal that could force lawmakers across the country to give First Nations a role in drafting legislation that affects treaty rights.

“This case is tremendously significant whichever way it comes out,” said Dwight Newman, a law professor at the University of Saskatchewan.

It could “fundamentally transform how law is made in Canada,” he said.

The court is to hear a challenge by the Mikisew Cree First Nation in northern Alberta. It seeks a judicial review of changes made under the previous Harper government to the Fisheries Act, the Species At Risk Act, the Navigable Waters Protection Act and the Canadian Environmental Assessment Act.

READ: White Rock-Semiahmoo First Nation talks hit an impasse

The First Nation argues that because the changes were likely to affect its treaty rights, the government had a constitutional duty to consult before making them.

Cases on the Crown’s duty to consult appear regularly, but they usually concern decisions made by regulatory bodies. This one seeks to extend that duty to law-making.

“Rather than being consultation about a particular (regulatory) decision, it’s a consultation about making the rules,” said lawyer Robert Janes, who will represent the Mikisew.

Janes argues that First Nations are often kept from discussing their real issues before regulatory boards.

“The place to deal with larger issues that First Nations often want to deal with are when the statutes are being designed. If you don’t deal with that in the design, the (regulator) doesn’t have the tools to deal with the problem when it comes up.”

Legislation creating Alberta’s energy regulator, for example, specifically blocks the agency from considering treaty rights, which are the root of most Indigenous concerns with energy development in the province.

Ensuring First Nations have a voice when laws are drafted will lead to better legislation, argues Janes.

READ: Pushing ahead with First Nation treaty negotiations

Not necessarily, says the government.

“At some point, the need to consult in this manner may overwhelm and affect the ability to govern,” it says in written arguments filed with the Supreme Court.

Ottawa argues that allowing the appeal would be a far-reaching intrusion by one branch of government into the work of another and that it is ”not the courts’ role to impose restrictions or fetters on the law-making process of Parliament.”

There’s nothing that prevents governments from consulting First Nations when laws are drafted, federal lawyers say. But they argue that forcing them to give Indigenous representatives a seat at the table diminishes Parliament, which is supposed to be the most powerful body in the land.

It would also put more value on some rights than others, giving treaty rights preference over charter rights.

READ: First Nation plans to block Kinder Morgan pipeline

The appeal is being closely watched. Five provincial attorneys general and seven Indigenous groups have filed as interveners.

Newman said some provinces, such as Saskatchewan, already consult First Nations in drafting relevant legislation.

Whichever way the Supreme Court decides, it will be “amongst the most significant duty-to-consult cases that have been decided,” he said.

“Altering the parliamentary process itself contains dangers. It’s a delicately balanced process that’s been developed over hundreds of years and I don’t know if we can predict all of the effects of putting in additional judicially developed requirements.”

Janes said one effect might be reconciliation.

“If you’re going to talk about reconciliation … it doesn’t make much sense to say we’re just going to let one side make the rules and we’re only going to have a conversation afterwards.”

— By Bob Weber in Edmonton.

The Canadian Press


@katslepian

katya.slepian@bpdigital.ca

Like us on Facebook and follow us on Twitter.

Just Posted

UPDATE: Wind warning has ended for Metro Vancouver

More than 34,000 BC Hydro customers in the dark on Sunday morning in the Lower Mainland and Sunshine Coast

Gardening: Companion planting for 2018

Make better choices and informed planting so harvests more abundant.

Maple Ridge car dealership staff pursue man who stole keys

Large police presence after suspect fled through backyards

Letter: Chance for a better life

I live three blocks from the Anita Place camp and have not had any problems with the there.

Jim Robson Road dedication part of Ridge Meadows Minor Hockey celebrations

John Shorthouse will join in 50th anniversary event in Maple Ridge

REPLAY: B.C. this week in video

In case you missed it, here’s a look at replay-worthy highlights from across the province this week

Coquihalla drivers prepare for snow

Wintry conditions persist, with snow warnings for Coquihalla

Liberals quietly tap experts to write new paternity leave rules

Ideas include creating an entirely new leave benefit similar to one that exists in Quebec

Insurers say Canadian weather getting hotter, wetter and weirder

Average number of days with heavy rain or snow across Canada has been outside norm since spring 2013

Final phase of MDMA-assisted psychotherapy trials to kick off in B.C.

Doctors hope to get psychedelic-assisted psychotherapy legalized in Canada and the U.S. by 2021

VIDEO: Vancouver Giants blanked by Portland Winterhawks

Saturday’s 2-0 setback marks first regulation loss for G-Men in 10 games

VIDEO: Thousands join women’s march events across B.C.

Today marks one year since the first Women’s March on Washington

Flames fall to Pilots in overtime

Ridge Meadows still leads conference, with game in hand

VIDEO: Remember the Voyageurs at Fort Langley

Two-day historical festival underway

Most Read