Allan Hutchinson is a distinguished research professor at the Osgoode Hall Law School at York University. He is completing a book on democracy and constitutions.
The Supreme Court’s recent decision on the reach of the federal government’s duty to consult with Indigenous peoples is an important and controversial one. But the focus of attention seems to be in entirely the wrong place.
It is not about whether the government must consult with Indigenous people during the law-making process as a matter of constitutional law. Instead, it ought to be about whether the government should consult as a matter of doing the political right thing.
Constitutional law simply lays down the basic floor of duties and obligations that are placed on governments as they go about their work and implement their various political agendas. However, there now seems to be a sense that, if the Supreme Court states that there is no particular duty, then this relieves governments of a reason or responsibility to act.
This is a regrettable state of affairs. And nothing could or should be further from the truth. The political obligations of the federal government may begin with the Constitution, but they do not end there. Indeed, the government should not have to look to the courts to educate them about their basic rights and responsibilities as political actors.
The judgments of the Supreme Court in the Mikisew case were far from clear or definitive on when and how the federal government should act in fulfilling their constitutional duty to consult with Indigenous peoples; there were four separate judgments of differing views and emphasis.
Seven of the judges took the view that there was no constitutional duty on the Crown to consult with Indigenous peoples while legislative policy was being formulated and implemented. To do otherwise, they argued, would infringe parliamentary supremacy and place the courts in the invidious and inappropriate position of having to supervise the legislative process.
If the government overstepped the constitutional mark in its legislation by interfering unduly with Indigenous people’s constitutionally-protected rights, then the courts would be able to step in and invalidate such legislation. This is not an unreasonable stance, but seems unnecessarily cumbersome and too modest in its effects.
Two of the judges took umbrage with that. They saw that the failure to extend the duty to consult to legislative actions gave the government too easy a way out. What they could not do by executive or administrative action (where there is a constitutional duty to consult) could be achieved by legislative intervention. This minority stance seems to be a more rigorous and realistic approach.
But the legal niceties of the judges’ positions are not really the point. What is significant is that none of the judges was insisting or recommending that no consultations should take place. Indeed, all their opinions can be read to give force to the view that consultation would be a good and desirable thing for the federal government to do.
And that is the main point. The federal government must not be allowed to utilize this decision to somehow validate their past and continuing stand that consultation is not demanded as a matter of political wisdom and virtue. It is. Because it is not demanded by the Constitution is beside the point.
The Prime Minister talks a very strong line, as he should, about the need to deal with Canada’s Indigenous people with honour and fairness. After decades of neglect and outright oppression, Justin Trudeau tells anyone who will listen why the time for a change to more conciliatory and respectful strategies in dealing with Indigenous peoples is now.
Yet the rhetoric not only exceeds the reality of the government’s actions, but actually masks them. Whether the federal government is dealing with treaty-negotiations, the funding of Indigenous child-welfare schemes, or certain processes for Residential School reparations, the performance of the government’s officials and lawyers is woeful. They take an adversarial and aggressively defensive approach to their duties. Conflict, not consultation, seems the name of the game
At times, the government seems intent on frustrating its own larger policy statements and commitments when dealing with Indigenous peoples. In its on-the-ground actions, it adopts a begrudging and, at best, legalistic attitude to the valid claims and interests of Indigenous peoples. This is a blight on the federal government’s record and purported ambitions: It smacks of hypocrisy.
So the decision of the Supreme Court in Mikisew should not be used to justify further government inaction and contrariness. Because they need not consult does not mean that they should not consult. They should; it is their political prerogative and their moral obligation to do so.