First thing yesterday morning, the federal government announced that they were proceeding with restarting consultations with First Nations affected by the Trans Mountain Expansion pipeline, and that they had tasked former Supreme Court of Canada justice Franc Iacobucci to oversee the process. Iacobucci has done a great deal of work around the Duty to Consult in recent years, as this report that he wrote with law firm Torys LLP demonstrates, along with work he’s done with Ontario over the underrepresentation of Indigenous people on juries in the province. Indigenous groups in the region have responded with some optimism, but are also warning that these consultations can’t come with a predetermined outcome if they’re to be meaningful (which may be too far to go given that the government has stated that this project will go ahead). Some of those Indigenous communities are also looking at the fact that this process could allow them to talk more amongst themselves.
https://twitter.com/coreyshefman/status/1047512242109997056
https://twitter.com/coreyshefman/status/1047512244303663104
https://twitter.com/coreyshefman/status/1047512246660808704
https://twitter.com/coreyshefman/status/1047512248716087297
Meanwhile, Rachel Notley and Jason Kenney (among others) are bellyaching that the government has opted not to appeal the Federal Court of Appeal decision to the Supreme Court of Canada, and yet not one of them has articulated what the error in law they are looking to contest would actually be, which is kind of a big deal if they think the Court will hear it. It’s also not clear that an appeal would get them any clarity anytime soon, given that the Court usually gives about six months between granting leave and hearing the case in order to provide time for submissions, and then a decision could take another six months at least – possibly more if it’s a contentious issue, like this one is.
This is really important for those imagining there is a legislative 'answer' to duty to consult. It's a legal interpretation of the constitutional duties of the Crown, so the gov't can't legislate the equivalent of yelling "not it!" on the duty. https://t.co/MWkZJSjWAN
— Andrew Leach (@andrew_leach) October 3, 2018