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Supreme Court ruling shouldn’t mean the death of Indigenous consultation: Senator McCallum
October 31, 2018
image Mary Jane McCallum
Mary Jane McCallum
ISG - (Manitoba)

We live in an era where cultural accommodation is a cornerstone of our multicultural society. This is a necessary and natural result of multiculturalism and, in theory, is a concept that should be extended to all cultures that call Canada home.

Yet, a very public struggle exists surrounding the original culture to call Canada home — that of Indigenous peoples. This struggle is between the recognition and toleration of Indigenous rights and, on the other hand, the misinformed interpretation or outright dismissal of these rights.

As this turmoil persists, we must ask ourselves: what are the key elements of our understanding of, and responses to, cultural differences?

The rights of Indigenous peoples, as well as their treaty rights, are protected by Section 35 of the Constitution. Many people view this as a full toolbox through which Indigenous peoples are afforded the right to pass their own laws and govern their own affairs.

Despite this all-important section of our Constitution, true Indigenous self-determination and self-government continues to evade our grasp due to a lack of recognition of cultural differences. This is bolstered by a history of colonization that saw the continued use of the law to keep Indigenous peoples in a disadvantaged state.

The existing system — whether political, legal, or social — continues to determine life, health, and self-determination for Indigenous peoples. These decisions, limited in scope, are made by those in a position of power and are dictated to peoples whose rights and needs are suffered but seldom welcomed.

The issue surrounding rights recognition can be seen most clearly through the recent Supreme Court of Canada ruling against the Mikisew Cree First Nation in Alberta. While the outcome was a troubling development in the ongoing struggle to achieve recognition and respect, it should by no means be viewed as the death of consultation.

While the legal ruling indicated that no binding constitutional duty exists for consultation to occur before a law is passed, I am hopeful that parliamentarians will continue to act in good faith so that this ruling will not disrupt the due process of ensuring Indigenous peoples’ concerns and their communities are heard and incorporated throughout the process of drafting relevant federal legislation.

Legal rulings such as this are not necessarily entrenched in justice. Justice, however, is needed when we look at the imbalances that society has created through structural violence, which is in turn enforced through legal rulings.

This particular ruling feeds into structural violence by further quieting Indigenous voices on issues that directly affect them. As a result, this ruling could lead to Indigenous peoples’ sustained, and likely increased, reliance on the Canadian court system to achieve justice.

This avenue will remain available for Indigenous peoples and communities to pursue on legislation affecting their rights, although it is far from ideal. It further stokes the fires of conflict between Canada and the Indigenous population, as opposed to achieving a mutually beneficial and collaborative long-term solution that would involve active participation in consultation.

While this ruling is widely viewed as a step backwards, the Supreme Court justices did indicate there still exists an obligation of the government to maintain the honour of the Crown when drafting legislation. Herein lies the importance of morality, ethics, and duty, which will act together as a check and balance in the drafting of legislation that affects Indigenous peoples.

At a time when reconciliation is shifting from merely an abstract word to a tangible goal, the onus is on Canadians to continue to act in a way that upholds these morals and ethics. This includes policy-makers and parliamentarians, who must ensure they continue to fulfil their duty to the Indigenous population in Canada. This duty is not only predicated on Section 35 of the Constitution, but is also an integral feature of the United Nations Declaration on the Rights of Indigenous Peoples, of which Canada is a full supporter.

This Supreme Court ruling puts Indigenous peoples in a deficit. Parliamentarians must act responsibly to ensure that this does not lead to further societal division and conflict.

This can be done by conducting their work, including the drafting of legislation, with reconciliation top of mind.


Senator Mary Jane McCallum is a First Nations woman of Cree heritage. She represents Manitoba in the Senate.

This article appeared in the Oct. 24, 2018 edition of The Hill Times.