Cue mic-drop: The highest court of Canada has ruled in its sovereigns’ favour, affirming that lawmakers of Canada are not required to consult with Indigenous people prior to tabling legislation that could constitutionally affect their Treaty Rights. Canada continues to flaunt its ability to assert absolute authority by excluding Indigenous voices in the lawmaking process.
The argument brought forth by the Mikisew Cree Nation to the Supreme Court Canada proposed that Cabinet Ministers should consult with Indigenous communities prior to green-lighting projects where Indigenous Treaty rights would be affected. This logical approach and solution attempted to resolve infringement of Treaty Rights at the beginning of the lawmaking process. This forward-thinking concept would better establish genuine and meaningful two-way dialogue consultations between Indigenous communities and the state. It is extremely difficult not to feel suspicious of the timeframe of this ruling – with the latest Trans Mountain pipeline decisions and the Site C Dam in Treaty 8 Territory – where Indigenous communities have challenged the state regarding their consultation practices. The timing of this ruling is eerie in light of the Liberal government’s “Recognition and Implementation of Rights Framework” that is currently being rushed through legislation, which to many, lacks transparency and is a continued top-down approach to policy making. Despite the recent ruling from the Supreme Court, the Mikisew case stands to demonstrate that Indigenous people continue to threaten Canada’s sovereignty by challenging colonial law-making procedures.
The title of this piece, “All these Treaty Rights and still not treated right: Honour our Treaties” reflects one of my favorite political t-shirts designed by Indigenous clothing line Section 35. As an Indigenous student on campus, majoring in First Nations Indigenous Studies and Gender, Race, Sexuality and Social Justice, I worry what this recent decision will mean for the future of law-making. My concerns are based on the Supreme Court’s prejudicial ruling that will continue to force Indigenous communities to dispute harmful legislations that violate Treaty Rights through the court system only after legislation has been enacted. Placing the ominous task of challenging disputes through legal systems onto small communities is unethical. This devious tactic undermines and by-passes responsibilities set out in the Treaties, which are still in effect today. In light of this ruling, the Supreme Court also acknowledges that the government still has an obligation to act respectfully by “honour[ing] the Crown” when drafting legislation affecting Indigenous people, but why do they “honour the Crown” and not our Treaties?
Regarding the issue of consultation, this case also prompts us to critique Trudeau’s alleged commitment to the United Nations Declaration on the Rights of Indigenous People (UNDRIP). Specifically, Article 19 outlines the expectation of consultation with Indigenous people to “obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.” Supporting UNDRIP while refusing to readjust law-making policies is contradictory. So, which is it: does the government want to commit to UNDRIP or do they just want a shiny global image as a benevolent leader? Treaty agreements and acts of reconciliation are not a dance of hokey pokey – you cannot choose to put your foot in or out when it suits your government best. Our Treaty Rights have been in place long before the government set their sights on mountain pipelines or energy dams and we will continue to fight any government that tries to bypass those rights with continued colonial legislation.
The importance of Treaty agreements continue to be an essential element in current day policy making. Prior to contact, Treaties were used as frameworks for trade alliances, relationship negotiations and access to shared resources on ancestral lands. In a colonial context, the Numbered Treaties (1-11) signed post-Confederation, were created to work-around the terra nullius doctrine and were foundational to the development of Canada as a country. The Treaties established nation-to-nation relationships between Indigenous people and the British Crown. They are directly tied to Canada’s claim to sovereign power, as it was through the Treaties that land was partitioned for settlers to settle. Thus, the Treaties cannot simply be absolved in a current, modern-day context as it would directly threaten and challenge Canada’s claim to land that was already occupied. Although treaties have been restructured and violated many times by the government, Indigenous activism continues to confront these infringements to assert self-determination as sovereign nations.
Although the outcome did not rule in their favour, the Mikisew Cree Nation and other Indigenous communities across Canada will continue to find new ways to challenge governance structures that affect Indigenous Treaty Rights. I raise my hands in solidarity with the Mikisew Cree Nation, located in Treaty 8 territory in Northern Alberta, for all the energy and effort they put into this court appeal and their continued perseverance to push forward despite this recent Supreme Court ruling. I would also encourage everyone to learn more about Treaty Rights – both in a historical and current context – and what they hold for us in 2019 onwards. Indigenous people will not be pushed to surrender our Treaty Rights and sovereignty. There needs to be respect and reciprocity, as it was originally intended. We’ve upheld our end of the bargain – it’s about time Canada did too.