The decision in Mikisew Cree First Nation v. Canada (Governor General in Council) at the Supreme Court of Canada yesterday has been described in some cases as relieving the government of the Duty to Consult Indigenous communities when preparing legislation, but I think some of that misses the very real issue of the separation of powers and parliamentary privilege – particularly when the news channels would immediately trot out Indigenous lawyers to say that this was an infringement on the Duty to Consult, and that it was a “missed opportunity” to get legislation right, and so on. (And lo and behold, here’s Pam Palmater to argue just that, and I find her analysis flawed). In fact, the CBC piece on the decision buried the aspect about separation of powers at the very bottom of the piece, despite the fact that it’s at the heart of the ruling.

To recap, the separation of powers is the doctrine that the executive, legislative, and judicial branches have different roles and you shouldn’t have them meddling in one another’s business, which is exactly what the case was proposing to do – to allow the courts to weigh in on legislation before it’s been passed, or in this case, even been drafted. That’s a huge overreach by the courts, and a giant infringement on parliamentary supremacy. Why that’s especially important is because we’re seeing a growing movement of people who try turning to the courts when they lose at politics, which is very bad for democracy. (In fact, it appears that the Mikisew are engaging in a bit of that very thing here, objecting to the changes to the changes to environmental assessment legislation). If the Mikisew had their way, it would allow for the courts to weigh in on the legislative process at all points, which not only makes legislation impossible, but it means that parliament can no longer govern its own affairs, which is a very bad thing. Of course, there were many differences of opinion between the justices as to how this all shakes out, but they all agreed that the courts have no role in interference in the legislative process, and I don’t think that was highlighted nearly enough.

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This being said, they did affirm that the Duty to Consult is still necessary – just that it didn’t need to be mandatory before drafting legislation. Smart governments who take the Duty seriously would do so in the planning stages of legislation, and there are opportunities to engage in consultation during the legislative process, particularly at committees, when amendments can be proposed that would assist with accommodation. Emmett Macfarlane also suspects that we could see the Senate take a more active role in ensuring proper consultation as it weighs in on bills as well, which could be an interesting evolution in the Senate’s activities as we move forward with its “new” characteristics.

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Meanwhile, Philippe Lagassé digs into Justice Brown’s reasoning around the Crown’s distinct capacities. Here is a thread from Emmett Macfarlane on his thoughts on the decision. And here’s University of Ottawa law school vice dean Carissima Mathen to explain the decision.

Good reads:

• At the Francophonie Summit, Justin Trudeau praised Michaëlle Jean, who also made a last-ditch pitch for a second term as Secretary General.
• American border officials have clarified that people who work in cannabis industries won’t be denied entry to the US if they’re not coming for work purposes.
• As new anti-dumping measures are introduced in Canada, hope appears to be fading for any kind of quick resolution to steel and aluminium tariffs.
• Here’s a reality check on that recent IPCC report, and what it actually says rather than the messages being put forward by activists (on both sides).
• Attempts to expand the Port of Halifax have become something of a gong show.
• The entire fleet of F-35s has been grounded for inspections after a crash. Because this is the best fighter, and the only one for allied nations, etcetera, etcetera.
• Here’s a look at the plight of captured wives of ISIS fighters, some of them Canadian, who want to return home, feeling they’ve done nothing wrong.
• Two new senators were appointed yesterday – an Franco-Ontario lawyers, and a Mi’kmaq leader from PEI.
• The UCP disqualified a candidate because he was too cozy with the Soldier of Odin. (If you keep blowing dog whistles, stop being surprised that they keep flocking).
• Unsurprisingly, the incoming CAQ government in Quebec insists that religious symbols are bad except for the giant crucifix in the National Assembly.
• Here’s an interesting look at the role of emotion in the justice system, per the outrage over Tori Stafford’s killer.
• Éric Grenier considers the polling failure in the Quebec election (but he keeps missing the fact that the popular vote is a logical fallacy).

Odds and ends:

Frank Stronach is suing his daughter, Belinda, for allegedly mismanaging the finances of their racehorse empire. She denies wrongdoing.

To ensure a smooth transition to our interim accommodations, employees participated yesterday in a simulation of a Chamber sitting in #WestBlock. At the same time, broadcasting, signage, and acoustics were tested. #ParliamentOnTheMove pic.twitter.com/I0AECBcEOd

— Speaker of the HoC (@HoCSpeaker) October 11, 2018

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