No Duty to Consult First Nations - CBC NN Panel

Summary

The Supreme Court of Canada's recent ruling eliminates the federal government's duty to consult First Nations before drafting legislation, shaking up decades of legal precedent. Experts discuss the implications for Indigenous rights and legislative processes in Canada. Pam Vomiter argues that this undermines constitutional protections for Indigenous peoples, while Tasha Carradine and John Ibbitson highlight the complexities of consultation versus legislative authority. The debate centers around whether the ruling sets back Indigenous rights or simply clarifies the limits of consultation, with further legal battles anticipated as governments and Indigenous groups navigate this shift.

Takeaways

• 😀 The Supreme Court of Canada ruled that the federal government does not have a duty to consult First Nations before drafting legislation, which raises questions about the future of indigenous rights in Canada.
• 😀 Pam vomiter emphasizes that this ruling is a significant step back, overturning three decades of jurisprudence that required consultation with First Nations on federal legislation affecting their rights.
• 😀 Tasha Carradine argues that the court made a distinction between legislative bodies and executive bodies, suggesting that consultation with First Nations might not be as necessary during the drafting of laws.
• 😀 John Abbott notes that while First Nations are entitled to challenge unconstitutional legislation, the ruling means that they no longer have a guaranteed role in shaping the legislative process before laws are passed.
• 😀 Pam vomiter refutes the argument that the ruling would make the legislative process unworkable, stating that governments have previously argued against consultation requirements due to the burden, but the court has consistently rejected that argument.
• 😀 The Supreme Court’s ruling creates uncertainty regarding the consultation process, with no clear guidelines on what constitutes sufficient consultation, which could lead to delays and legal challenges down the line.
• 😀 The concept of the 'honor of the crown' was discussed, with Pam vomiter expressing concern that the ruling undermines the constitutional protection of Aboriginal rights by failing to enforce a meaningful duty to consult.
• 😀 Tasha Carradine suggests that while consultation with First Nations should happen, the court's ruling leaves open the possibility for the government to redefine its relationship with First Nations, particularly with respect to Section 35 of the Constitution.
• 😀 John Abbott points out that many First Nations leaders interpret consultation as the right to veto legislation that affects them, a power that the court has so far refused to recognize, preferring instead a system where the government consults but not necessarily seeks approval.
• 😀 The debate over consultation versus veto continues, with the Supreme Court leaving the door open for future legal cases to further clarify the role of First Nations in the legislative process and their ability to challenge laws after they are passed.

Q & A

What was the Supreme Court of Canada's ruling regarding the federal government's duty to consult First Nations before drafting legislation?

The Supreme Court of Canada ruled that the federal government does not have a constitutional duty to consult First Nations before drafting legislation. This decision has significant implications for Indigenous rights and the legislative process in Canada.

How does Pam Vomiter describe the implications of the Supreme Court ruling?

Pam Vomiter argues that the ruling has huge implications, essentially overturning decades of jurisprudence that established a duty to consult First Nations before passing laws affecting their rights. She emphasizes that this decision undermines the constitutional protection of Indigenous rights under Section 35.

What is Tasha Carradine's perspective on the ruling?

Tasha Carradine suggests that the ruling may not be as much of a setback as others think. She believes the ruling distinguishes between different types of bodies, such as regulatory bodies versus legislative bodies. She also points out that the federal government could still choose to engage with First Nations on the issue through Section 35, which remains open to interpretation.

What did John Ibbitson argue about the ruling's impact on the legislative process?

John Ibbitson contends that while the ruling may not advance Indigenous rights in terms of consultation, it does not mean that Indigenous groups are without recourse. He believes that Indigenous peoples can challenge legislation after it is passed, as unconstitutional or violating Section 35. He also highlighted concerns about making the legislative process too cumbersome.

What are the practical concerns raised about enforcing the duty to consult?

One of the practical concerns discussed in the transcript is the potential difficulty of stopping legislation mid-process if consultation is deemed insufficient. This could lead to delays and legal battles, making the legislative process unworkable. There are also concerns about the varying standards of consultation and the lack of clear guidelines on what constitutes adequate consultation.

What does 'honor of the Crown' mean, according to Pam Vomiter?

Pam Vomiter explains that 'honor of the Crown' is a constitutional principle that requires the government to act in good faith when engaging with Indigenous peoples. This principle has been emphasized in many legal cases, but she criticizes the ruling for undermining it by allowing governments to avoid their obligations to consult with First Nations.

How does the duty to consult apply differently to Indigenous peoples compared to other minority groups in Canada?

The duty to consult is specifically tied to Indigenous peoples and their rights under Section 35 of the Constitution. Unlike other minority groups, Indigenous peoples have unique constitutional protections related to their land, rights, and title, which cannot be treated the same as other groups in the country.

What concern does Tasha Carradine raise about the potential consequences of the ruling on legislative processes?

Tasha Carradine raises the concern that if every bill could be halted due to insufficient consultation with First Nations, the legislative process could grind to a halt. She questions whether the risk of disrupting Parliament outweighs the need for consultations and whether such a framework could be practically implemented.

What does John Ibbitson suggest is the real issue at stake in this ruling?

John Ibbitson suggests that the central issue is whether First Nations should have a veto over federal legislation that affects them. He points out that while the court recognizes the duty to consult, it stops short of granting Indigenous peoples the power to block laws. This distinction remains contentious.

What is the National Chief of the Assembly of First Nations' reaction to the Supreme Court decision?

The National Chief of the Assembly of First Nations, Perry Bellegarde, interpreted the ruling as sending a message that while the federal government is not required to consult First Nations before drafting laws, it should still do so voluntarily to avoid costly legal battles later. He emphasizes that consultation is important to ensure the rights and title of Indigenous peoples are respected.