October 12th, 2018
October 12th, 2018
"Yesterday's ruling by the Supreme Court of Canada is a very specific ruling on one case and does not reflect broadly on the state of Indigenous, Treaty, or Canadian law as it must be applied to other cases.
This ruling by the Supreme Court underscores Canada's constitutional obligation to consult and accommodate Indigenous peoples when the Crown considers actions or decisions that may affect Indigenous or Treaty rights. Parliament is also presumed to adopt legislation in keeping with its international obligations, including the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the human rights it articulates.
This was not a unanimous decision. In fact, the dissenting voice came from a human rights perspective. Canadian law is evolving and my bill C-262 is an example of legislation that will ensure Indigenous human rights become more entrenched.
In this ruling, the Supreme Court of Canada held that the duty to consult and accommodate is an obligation that flows from the honour of the Crown, a foundational principle of law which governs the relationship between the Crown and Indigenous Peoples. Canadian law also states that when there is a fundamental difference between legislation and treaty law, it is the treaties that must be respected. If in fact legislation is put forward by the government that infringes on Indigenous rights, the court recognized yesterday that there are existing judicial remedies to address grievances. The SCC, in their decision, does not absolve the Crown of its obligation to conduct itself honourably.
This is where respect for the right to free, prior, and informed consent could eliminate excessive government litigation against Indigenous peoples. Beginning the consultation process early in the legislative drafting process, or project design process, is the key to a successful and respectful consultation and accommodation process. The law is clear, it is time for the Government of Canada to respect its own laws.
It is troubling that while the Liberals have publicly committed to a Nation to Nation relationship with Indigenous peoples, and to respect the rights articulated by the UNDRIP, they send their lawyers to court to argue the opposite."