MCA OP-ED Canada Ignores Duty to Consult Requirement
Ohiari:ha / June 18, 2008
Public Safety Minister Ignored “Duty to Consult” Supreme Court Ruling.
Several Supreme Court of Canada rulings in recent years have laid out the legal requirement of the Government of Canada to consult with and, if
required accommodate, First Nations People when federal action may
adversely impact their Aboriginal or treaty rights. The Federal Government’s responsibility and efforts to undertake consultation with a
First Nations community increases with the potentially adverse effect it
may have.
The extent of consultation would entail providing information about the
federal action, initiate information meetings in the community, listen to
input and consider options to address any negative consequences. For the Akwesasne community, we wouldn’t accept anything less before claiming that “extensive consultation’ has been conducted. It would require two-way dialogue with federal officials, not the one-way dialogue that we have already experienced.
The Mohawks of Akwesasne continue to assert that given the significant
impacts that arming Canada Customs Officers will have on our community
that there was a legal requirement for the federal government to consult
with Akwesasne leaders. In the three years since being notified of the
federal policy calling for the arming initiative, the Minister of Public
Safety has failed to directly contact and consult with the people of
Akwesasne. Instead, the Public Safety Minister has relegated the issue of
arming border guards in Akwesasne Mohawk territory to the Canadian Border Services Agency (CBSA).
The Government of Canada had a legal obligation, as originally established by the Supreme Court in Haida Nation v. British Columbia, to recognize and affirm the “Duty of Consultation and Accommodation” before any action is taken that will have a direct impact on Akwesasne. It’s a duty that the Supreme Court ruled is a protection of the pre-existence of Aboriginal societies and the historical relationships that have been developed with the Federal Government. It is a government-to-government responsibility that cannot be delegated to a third party.
The Canada Border Services Agency is an agent of Federal Government and lacks the authority to engage in meaningful and honorable consultations with the Mohawks of Akwesasne on behalf of the Canadian Government. The federal agency does not have the mandate or the political weight to enter into government-to-government agreements for Canada. That responsibility and authority squarely rests with the Crown and its ministries.
The Mohawk Council of Akwesasne has made numerous attempts to meet with the Minister of Public Safety and engage in meaningful consultation, which the federal government was responsible for initiating. Our formal requests to open dialogue on this issue began as far back as March 2008 in a letter to then-Public Safety Minister Stockwell Day. And, more recently, in a letter on June 9th to current-Public Safety Minister Peter Van Loan. All
of our good faith efforts to have federal officials listen to our concerns
have fallen on deaf ears.
Despite these setbacks, the Mohawks of Akwesasne remain committed to
following a peaceful process in resolving the situation at Akwesasne. We
have always been and continue to be available to have respectful and
meaningful dialogue when the federal government is prepared to do the
same.
Grand Chief Tim Thompson
Mohawk Council of Akwesasne
