RULING: No Duty To Consult Indigenous People Prior To Introducing Legislation Says Supreme Court

If the ruling had gone the other way, the legislative process could have been slowed down massively.

In a 7-2 decision, the Supreme Court has ruled that the federal government does not have a ‘duty to consult’ Indigenous groups before they introduce legislation

The Mikisew Cree First Nation had said that 2012 omnibus budget legislation had infringed on their rights under the constitution. They wanted the Supreme Court to force the federal government to have a duty to consult before introducing legislation.

Currently, the duty to consult is constitutionally required – but only for actions by the federal cabinet and government regulators through executive actions.

Extending the duty to consult to the legislative process would have massively slowed-down the governing process, and would have been disastrous.

The court rejected that. Here’s part of their commentary on the ruling:

“The duty to consult 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. Applying the duty to consult doctrine during the law-making process would lead to significant judicial incursion into the workings of the legislature.”

“In the long chain of events contributing to the development of legislation, disentangling what steps the duty to consult applies to (because they are the executive) and what actions are immune (because they are parliamentary) would be an enormously difficult task.”

“It would encroach on parliamentary privilege. It would involve the courts in supervising matters that they have always held back from doing. It would offend foundational constitutional principles and create rather than solve problems.”

This is a rare example of a good ruling from a Canadian court, showing that there might be a shred of common sense left.

Spencer Fernando