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SCOC ruling on Indigenous consultation muddies reconciliation waters: lawyer

(Source: iStock)

VANCOUVER (NEWS 1130) – The Supreme Court of Canada’s ruling that the federal government does not need to consult Indigenous communities when drafting legislation may not impact the ongoing Trans Mountain pipeline debate, but it does create hurdles towards reconciliation, according to a BC Indigenous law professor.

Alberta’s Mikisew Cree First Nation argued the previous Conservative government should have consulted them on an omnibus bill that would affect their treaty rights. By a margin of 7-2, the court found the case does not amount to Crown conduct that would trigger a duty to confer with Indigenous Peoples.

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While the ruling won’t affect Indigenous consultation on administrative decisions like the future of the Trans Mountain pipeline expansion, University of Victoria Indigenous law professor Sarah Morales said it has set a worrying precedent that narrows when exactly the government must seek the opinion of First Nations.

“How the duty to consult has been interpreted by court, I do feel is quite limiting,” Morales said. “It doesn’t coincide with what the Federal Government has promised… I think there’s some frustration there in that Indigenous peoples are hearing from government this commitment to forming a new relationship, but then they’re continually being taken to court.”

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The ruling does not leave Indigenous communities without recourse, according to Morales, because individuals and communities can still assert their rights have been violated once legislation is passed.

“It’s disappointing that indigenous peoples have to wait until there is a breach or infringement of those rights before they can get meaningful recognition of those rights,” she said. “Creating opportunities for more input from Indigenous peoples about laws or decisions that may negative affect their lives or their rights at an early point you’d think would do much more towards reconciling relationships between Canada’s Indigenous and non-Indigenous peoples.”

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Supreme Court Justice Andromache Karakatsani said the ruling does not absolve the Crown of its duty to act honourably toward Indigenous peoples, but Morales says the real test now is to see how Ottawa proceeds on future legislation.