The strangling nature of Canada’s ‘duty to consult’ the Indigenous

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Brian GiesbrechtThe Supreme Court of Canada’s Mikisew decision, delivered on Oct. 11, 2018, marks what could be a very significant development in Canadian law – possibly ushering in a more reasonable era, where courts intervene less in matters that properly belong to the people’s elected representatives.

Let me explain:

Section 35 was written into Canada’s brand new Constitution in 1982 against the better judgment of most of the premiers. Section 35(1) reads: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

Most of the premiers saw no need for the section and didn’t want it in. They were very worried that it would be used to create new Indigenous law. So concerned was Alberta Premier Peter Lougheed that he insisted that the word “existing” be inserted into the section to make it crystal clear that the section wouldn’t be used to create new laws and obligations that could do damage to the country’s economy and well-being. He refused to sign on unless the word was included.

Despite that insertion, the worst fears of the premiers were realized. The Supreme Court used Section 35 to create new Indigenous laws that very significantly extended the federal government’s obligations to the Indigenous people as a tribal collective. The steadily expanded “duty to consult” line of cases since 1982 is one example of this ambitious extension of expensive and obstructive new legal requirements that were not supposed to happen.

This astonishing growth in both new impediments to resource development, and government spending actually benefits very few people. According to the 2016 Canadian census, status Indigenous make up 3.2 per cent of Canada’s population. Less than half of that number now live on reserves, and a minuscule percentage of that small number rely on hunting, trapping and fishing to make a living.

And yet an unprecedented amount of litigation, legislation and money has been devoted exclusively to ostensibly accommodating that tiny number of people. In fact, the recent pipeline controversy is worrisome evidence that the entire economy of the country is being held hostage to accommodate this small group.

But it’s not even the few Indigenous people who make their living by hunting or fishing who benefit from these additional court ordered obligations. And it’s certainly not the majority of poor people who live on reserves.

In reality, a small privileged group is benefiting financially from this expansion. The average reserve resident is not benefiting at all from all this largesse. A Canadian study indicates that since 1982, there has been no appreciable improvement in the living circumstances of the average reserve family – despite all of the judicial gymnastics of our courts, and the fact that it now costs taxpayers more than $100,000 per year to subsidize such a family.

Clearly, that which benefits a privileged minority is keeping reserve residents poor and unemployed.

The “duty to consult” as set out by the court in Haida Nation and other cases, alone, has been responsible for staggering expense, as well as lost resource development opportunities for the country. There are approximately 625 reserves in this country, and each regards itself as a separate nation that must be consulted and accommodated when a plan might affect them in some way. This duty to consult has tended to take the form of lengthy and expensive negotiations that eventually result in a payoff that benefits a select few.

To complicate matters, the individual reserves often take competing positions. The result has been stagnation and crippling costs for both governments and private corporations. The Enbridge Pipelines case is only the latest and most dramatic example of this hopeless and unsustainable situation.

With the Mikisew case, it appears that there’s a recognition by the Supreme Court that the continued expansion of the “duty to consult” is indeed unsustainable. The court, in Mikisew, says: “The duty to consult doctrine is ill-suited for legislative action. It is rarely suitable for courts to scrutinize the law-making process. The separation of powers is an essential feature of Canada’s Constitution.” These are very welcome words.

This is a very significant step back from the over-generous words the court had for the duty to consult in previous cases. There’s no highfalutin talk here of “the honour of the Crown” or similar noble (and prohibitively expensive) sounding phrases that were used in previous duty-to-consult cases, like Haida Nation. Instead, there is a common-sense realization that the elected representatives must be allowed to do their jobs and not constantly be held up to mercenary attack.

Perhaps this will restore a more practical and common-sense interpretation of what “duty to consult “ is all about. Of course, a reserve should be consulted about matters that might affect them. That only makes sense.

I live in a rural part of Manitoba. If either the provincial or federal government have a plan to do something that will significantly impact the municipality in which I live, they’re required to consult with the municipal government and compensate it for the adverse effects of its plan. That should happen in the same way for reserves.

In the case of reserves, the right to hunt on Crown land would be an additional factor that would have to be considered, even if very few people make their living at hunting.

However, these consultations must not be allowed to stop needed development, or make it prohibitively costly. The country needs development to remain prosperous.

The direction the “duty to consult” cases were going before Mikisew was quite alarming. Even other groups, such as Metis advocacy organizations, were litigating in an effort to be included in the distribution of tax dollars that the “duty to consult” is really all about.

How this will all turn out is anybody’s guess. The chief who spearheaded the Mikisew case, Steve Courtoreille, has already threatened to take matters to the United Nations, using the United Nations Declaration on the Rights of Indigenous People (UNDRIP) as a weapon. UNDRIP has been adopted by Canada. Whether such an action would be successful is an unknown.

It’s also an unknown how much Bill C-262, if it becomes law, would improve the chances of chiefs like Courtoreille, who plan to use the United Nations to advance their cause. Bill C-262 is presently in the Senate. (The bill would require all Canadian laws to be harmonious with UNDRIP). In fact, if C-262 does become law, the duty to consult it imposes could make today’s problem much worse than it already is. What should be Canada’s business could be decided by the notoriously political and corrupt United Nations bodies.

Let’s hope that Canadian legislators have the good sense to ensure this doesn’t happen. Bill C-262 should be defeated.

The Supreme Court has now given a strong indication with Mikisew that the strangling requirements of the innocent sounding “duty to consult” will not become the virtual veto that Indigenous advocates and their ambitious lawyers are after. Perhaps this is a recognition by the court that such a veto would be a disaster for all but a privileged few.

Let’s hope that Mikisew ushers in a more reasonable era.

Brian Giesbrecht is a retired judge and senior fellow with Frontier Centre for Public Policy.

duty to consult indigenous

The views, opinions and positions expressed by columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of our publication.

By Brian Giesbrecht

Brian Giesbrecht was a Provincial Court Judge in Manitoba from 1976 to 2007. During that time he served as Acting Chief Judge, and Associate Chief Judge. He is now retired and lives in western Manitoba.

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