The Conservation – Mikisew Cree First Nation v. Canada Supreme Court Decision ruling on the application of the Duty to Consult doctrine and if it can be applied to the federal legislation-making process. The case originates from Mikisew Cree First Nation’s challenge of the 2012 Omnibus bills introduced under the previous federal government that made significant changes to environmental, fisheries and waters protection.
The decision negated any meaningful involvement of First Nations in the legislative process, a process that can have deep and lasting impacts on First Nation peoples, lands, waters, and Treaty and Inherent Rights. The Federal Court of Appeal overturned the ruling, saying that including the duty to consult in the legislative process offends the doctrine of the separation of powers and the principle of parliamentary privilege.
Recognizing that the 1764 Treaty of Niagara that had more than 2,000 representatives from Indigenous nations gathered over a month to deliberate how they could share the land with European settlers is a foundational “legal” document. Treaties are also part of the law. Section 35 of the 1982 Constitution Act affirms the recognition of this and other Aboriginal and treaty rights. Internationally, the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, which Canada has adopted, acknowledges the rights of Indigenous nations to have treaties and other agreements recognized by settler governments. If the Treaty of Niagara process had been used as a guide, Indigenous governments would be fully informed of proposed changes in law, with time set aside for representatives to come together in order to discuss, deliberate, debate and decide on the merits of these proposed changes. Indigenous legal orders would be recognized as a foundational source of land-use law.