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In a dissenting voice, Justice Abella upholds Indigenous rights while majority on Supreme Court waffles –

October 12, 2018

The Supreme Court’s 7-2 decision this week that says the federal government does not have the duty to consult Indigenous people when drafting laws, includes a powerful opposing opinion.

The two dissenting judges emphatically and eloquently support the Indigenous position. And over time, that powerful dissenting opinion might carry more weight than the majority’s.

The case goes back to 2012, at a time when Stephen Harper’s Conservative government was perfecting the art of the omnibus bill. One such bill, a technical budget bill, used the fine print to radically change both the fisheries act and the approval process for large resource projects.

Indigenous groups across the country saw those stealth legislative changes as threats to their hunting, fishing, harvesting and other land-use rights, many of them guaranteed by treaty. One group, the Miskew Cree First Nation of Alberta, initiated a court case, arguing that the Crown’s constitutional duty to consider the rights of Indigenous groups includes consultations during the legislative drafting process.

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