A good day for Canada and its Supreme Court was Oct. 10, 2018.
Once more they showed Canadians and the world the importance of an independent, judicial body whose jurisprudence is based on the rule of law and the Constitution, not personal feelings and political bias.
In its 7 – 2 decision, the court ruled against the Mikisew Cree First Nation in Alberta which had argued legislation passed by the former Conservative federal government in 2012 affected its constitutionally protected treaty rights.
The legislation had amended regulatory protections for waterways and the environment.
The Supreme Court justices found that Canada’s lawmakers do not have a duty to consult with Indigenous people before introducing legislation. But the ruling did reinforce the government’s obligation to act honourably and maintain the “honour of the Crown” when drafting legislation that could affect Indigenous peoples.
How we’ve treated, and often continue to treat, our First Nations is abysmal.
The lifting up of First Nations communities out of third world conditions, the reconciliation process, changes to correctional and family services, and support to bring back First Nations traditions and languages continues to be a necessary priority at all levels of government.
However, the top court validated parliamentary supremacy when denying the Mikisew Cree’s request.
Our constitutional democracy would collapse if any one group were able to curtail the ability of parliament to enact their legislative agenda.
In our system of governance, the Senate and the Supreme Court provide important checks and balances, and parliament ultimately is held accountable by the Canadian electorate.
The government’s obligation to consult with potentially affected First Nations happens after legislative approval. That was witnessed recently when the Supreme Court disallowed the TransMountain pipeline approval because it didn’t consult meaningfully with all First Nations as it related to their protected rights under the Constitution.
Again, that doesn’t mean the TransMountain pipeline can’t be built, it just means in Canada we do things in accordance with the rule of law.
The reason so many democracies are in trouble worldwide is because of the separation of powers between different branches of government has been eroded.
Be warned, the same forces that are working in the United States are actively working in Canada.
Ontario Premier Doug Ford’s threat to use the notwithstanding clause, when the Courts found his actions unconstitutional because of the timing of the change in the numbers of
Toronto city councillors, clearly highlight’s the vulnerability of our democratic system. The notwithstanding clause is the most powerful legislative tool in Canadian law that if used for vengeance or for crass partisan ideology, can undermine the separation of power between our legislative branches.
If Ford was changing the size of city council for the good of Torontonians, there would have been consultation and it would not have been done just as the election campaign started. But this play was most certainly vengeance against a group of people he believed unfairly treated his late brother, former mayor of Toronto, Rob Ford.
Our democracy is holding its own at the moment, but without public mindfulness surrounding the dangers of the indiscriminate use of the notwithstanding clause by self-serving leaders, we could find ourselves in the same mess as our American friends.