Category: Case Comment

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Dr. Morales article on Mikisew Cree Nation v. Canada

On October 29, 2018, Dr. Sarah Morales published an article in the Canadian Lawyer about the Mikisew Cree Nation v. Canada 2018 SCC 40.   Her article discusses how UNDRIP should have been applied to the judgment. A reason for why UNDRIP should have been applied is Canada’s stated commitment to adopt and implement UNDRIP.  This commitment is being shown by Bill C-262, which has moved through the House of Commons, and is now on its second reading in the Senate.

See our previous blog post for more information on the Mikisew judgment.

Below are a selection of Sarah Morales’s publications on UNDRIP.

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Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40

The decision in Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40, was handed down last Thursday (October 11, 2018).

The Mikisew case started in 2012, when omnibus legislation that would affect the Mikisew Cree First Nation was passed, without consultation with the First Nation.  In 2014, the Federal Court ruled that there was a duty to consult First Nations before enacting legislation.  This decision was overturned in 2016 by the Federal Court of Appeal on the basis that the Federal Court lacked jurisdiction.  The Mikisew First Nation appealed to the Supreme Court.

The Supreme Court unanimously agreed that the appeal should be dismissed, as the development of legislation is not subject to judicial review.  The subject of if the Crown had a duty to consult during the legislative process resulted in a more complex response. The court handed down a judgment of 7-2 that the duty to consult was not obligatory during the legislative process.   The reasoning of three justices, represented by Justice Karatansanis, agreed that the Crown did not have a duty to consult during the legislative process but stated that the Honour of the Crown still stands, and that other protections could be created in future cases.  Four justices held that there was not a duty to consult and that the issue was closed. The two dissenting justices reasoned that the duty to consult extends to the legislative process.

The following resources look at different aspects of the judgment in more detail.

General Overview: Lawson Lundell’s Project Law blog and First Peoples Law blog provide general overviews of the judgement, including explanation of separation of powers and parliamentary sovereignty.

Political/Moral Duty: An opinion piece in the Globe and Mail by Allan Hutchinson, a research professor at Osgoode Hall Law School discussed how the duty to consult was a political and moral obligation, even if not constitutionally obligatory.

Critical of judgment : An opinion piece in Maclean’s by Pam Palmater, a Mi’kmaw citizen, lawyer and chair of Indigenous Governance at Ryerson, blog post from Olthuis Kleer Townshend LLP on lack of reconciliation, discuss how the judgement will affect section 35 of the Constitution, and how it is out of sync with previous Supreme Court precedence on the subject.

Uncertainty created and future implications: Two opinion pieces by Dwight Newman, one discusses the uncertainty created by the judgement and the other discusses what the judgement could mean in the future.

This judgment is an interesting contrast to the Uluru Statement from the Heart, an Australian document created as a result of a constitutional convention of Aboriginal and Torres Strait Islander peoples, that Dr. Gabrielle Appleby spoke of in her talk at UVic on October 12, 2018.  See the previous blog post for further information on the Uluru statement and Dr. Appleby’s talk.

 

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Nov 9 Panel Discussion: Ktunaxa Nation

Learn about and discuss last week’s decision Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54. Hear from scholars from UVic Faculty of Law, UVic Indigenous Law Research Unit, and Department of Political Science: Avigail Eisenberg, Darcy Lindberg, Alan Hanna, and Stacie Swain.

Where:   Room 152, Fraser Building
When:    Thursday, Nov 9, 12:30 pm

There will be opportunity for questions and discussion.

Selected further reading:

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Comment by Professor Donna Greschner on Brexit judgment

As we wrote earlier, on November 3, 2016, judgment in R (Miller) v Secretary of State for Exiting the European Union, [2016] EWHC 2768 was released. We’re pleased to host this guest post by UVic Law Professor Donna Greschner, commenting on the judgment and its importance for Canadian constitutional law:

Canadian constitutional lawyers will find much of interest in the High Court’s decision that the UK government does not have prerogative power to ‘pull the trigger’ on UK membership in the European Union. In the Court’s opinion, since the notice to withdraw from the EU would be irrevocable and thus would irreversibly affect legal rights created by statutes, the power to give notice is held by the body that created the statutory rights: Parliament. Unless Parliament relinquishes its power to the executive, which the Court held Parliament has not done, the power continues to be Parliament’s alone.

In short, the constitutional principle of Parliamentary sovereignty is paramount and must be respected by the executive: “This subordination of the Crown (i.e. the executive government) to law is the foundation of the rule of law in the United Kingdom. It was…..decisively confirmed in the settlement arrived at with the Glorious Revolution in 1688 and has been recognized ever since.” (at para. 26).

With Canada having inherited “a Constitution similar in Principle to that of the United Kingdom,”  to quote the Preamble to our Constitution Act, 1867, the High Court’s understanding of the fundamental principle of Parliamentary sovereignty deserves our close reading, for it is our principle, too. During Stephen Harper’s time as Prime Minister from 2006-2015, executive disrespect of Parliament was common practise. Indeed, disrespect hardened to contempt at least once.

Although the High Court’s decision is already under appeal, its clear affirmation of the principle of Parliamentary sovereignty should stand as an important bulwark for representative democracy in times of troubling accretions of executive power.