Canada’s Supreme Court has ruled politicians do not need to consult First Nations when drafting new legislation that may affect Indigenous rights. One judge wrote such a duty would be “highly disruptive” to the lawmaking process.
The decision came just over a month after a federal court reversed Canada’s approval of Kinder Morgan’s Trans Mountain pipeline over a lack of meaningful First Nations consultation. In response, the feds have appointed a former Supreme Court judge to redo the project’s consultations.
These two court decisions have raised a lot of questions over when and how Canada fulfills its “duty to consult” and what that means for controversial energy projects facing Indigenous opposition.
The latest ruling came as a disappointment to the Mikisew Cree First Nation, who first launched a legal challenge over Conservative Prime Minister Stephen Harper’s changes to environmental protection laws in 2013.
Between two omnibus bills, Harper’s government overhauled water and fisheries protection laws so that energy companies could start digging and drilling without triggering a lengthy environmental assessment process.
“Under the old legislation, essentially any river you can float a canoe on was protected, and the government had to do an environmental assessment,” Robert Janes, lawyer for the Mikisew Cree, told VICE. “Under the new legislation, in their territory only two rivers were protected, so it probably went from about 30,000 rivers to two rivers.”
The Mikisew argued they should have a right to consultation before laws like this are put in place, but the country’s highest court disagreed, countering that consultations should happen on a project-by-project basis.
“Mikisew and other First Nations have valuable knowledge, laws and experience to contribute,” Chief Archie Waquan said in a statement Thursday. “We should be at the table with government, not reacting after the fact through litigation.”
“Fundamentally, the courts have said look, the real place to have the battles over duty to consult are in specific projects,” Janes told VICE.
That means when projects like Kinder Morgan’s Trans Mountain expansion are proposed, it becomes the National Energy Board’s duty to make sure consultation happens. Or, in the case of a mining project, it’s up to provincial environmental review boards to ensure meaningful dialogue on the issue.
While the decision essentially pushes Canada’s “duty to consult” to a different step in the legal process, experts say we’ll be unpacking this decision for years to come. Whether or not governments could then use legislation to push through unpopular projects like Trans Mountain, for example, is still up for debate.
“What Alberta Premier Rachel Notley wanted to see happen was government to pass legislation approving Kinder Morgan,” Janes told VICE. “The government could conceivably do that without consulting.”
However, Janes says Trudeau has committed to carrying out new consultations on the Trans Mountain expansion, and the Crown would still need to “act honourably” under the new Supreme Court decision.
According to Jessica Clogg, executive director at West Coast Environmental Law, First Nations could still challenge legislation for infringing on rights after it comes into effect.
When asked what this means for future pipeline projects, Clogg said Canada’s commitments to the United Nations Declaration on the Rights of Indigenous Peoples supersedes today’s ruling.
Canada signed onto the UN declaration in 2016, and in doing so committed to obtaining free, prior and informed consent on all matters impacting Indigenous rights. “That’s the principle piece,” Clogg told VICE. “We would be expecting Canada to live up to its obligations, particularly around obtaining consent.”
Whatever the outcome on Trans Mountain, Janes says groups like Mikisew are still committed to fighting for their rights in court. “I suspect lawyers and judges are going to be figuring this out for the next couple years.”
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