Roundup: Protecting parliament from court interference

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.

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Roundup: Applause, heckles, and a questionable accusation

Stephen Harper made his speech before the Knesset yesterday, and largely accused the “Stop Israel Apartheid” movement as being a new breed of more sophisticated anti-Semites. So there’s that. Ahmed Tibi, an Arab-Israeli MK and leader of the Arab Movement for Change party, heckled Harper’s speech and walked out, because he took exception to Harper’s characterisation of Israel as a democracy – considering that most of the Palestinians are disenfranchised – and that he feels that it is an apartheid state, contrary to Harper’s assertion. Michael Petrou live-blogged the speech – complete with drinking game – and made some quite apt observations about the reality of the situation in the region along the way. Petrou also dissected Tibi’s heckling criticism of Harper’s speech, and notes where Tibi gets things right and wrong. Meanwhile, Harper did announce an additional $66 million in aid for the Palestinian authority. And CBC has a full list of the delegation that Harper brought with him, while Liz Thompson finds that a large number of them are also Conservative donors.

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Roundup: Another Nexen decision delay

In a move that surprises pretty much no one, the government has extended the deadline on the Nexen deal by another month, giving themselves until December 10 to make up their minds. This is no doubt in large part because Haprer is off to India next week and wouldn’t be around to deal with this outcome, no matte what it will be, and considering how they worked until the last minute on the Petronas deal, they may still be hard at work on this file and need more time.

It looks like the skilled worker immigration backlog could be eliminated by the end of 2014 – three years ahead of schedule – because of plans to create a pool system where provinces and employers can cherry-pick the workers that best suit their needs. The whole thing could be scuttled, however, by an upcoming court case that deals with the plans to legislate away the pre-2008 backlog, because those would-be immigrants would have been denied due process.

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