On October 1st, the Supreme Court of Canada released its decision in City of Toronto v Ontario (Attorney General). This case was about the fairness of a municipal election in one city, but the decision also raised the issue of how Canada’s Constitution is to be interpreted and the role of unwritten constitutional principles in protecting the rights of all Canadian citizens, including the unique rights and interest of Indigenous peoples.
The Métis Nation of Ontario (“MNO”) and Métis Nation of Alberta (“MNA”) jointly intervened in the case to protect the unwritten constitutional principle of the honour of the Crown that is owed to Indigenous peoples. While the 5/4 majority of the Supreme Court held that “unwritten constitutional principles cannot serve as the basis for invalidating legislation,” the majority went on to recognize the unique nature of the honour of the Crown and held the following: The unwritten constitutional principle of the honour of the Crown is sui generis. As correctly noted in submissions of the interveners the Métis Nation of Ontario and the Métis Nation of Alberta, the honour of the Crown arises from the assertion of Crown sovereignty over pre-existing Aboriginal societies, and from the unique relationship between the Crown and Indigenous peoples. We need not decide here whether the principle is capable of grounding the constitutional invalidation of legislation, but if it is, it is unique in that regard.
The dissenting opinion, written by retiring Justice Rosalie Abella, went even farther, noting that “of course, the unwritten constitutional principle of the honour of the Crown has been affirmed by this Court and accorded full legal force.”
“We are pleased the Supreme Court of Canada recognized that not all unwritten constitutional principles can be painted with the same brush. The honour of the Crown is extremely important in advancing reconciliation and its must be given full legal force so Métis governments and other Indigenous peoples can rely on the promises governments make to us every day,” said MNA President Audrey Poitras.
MNO President Margaret Froh added, “Our Métis governments are embarking on a new era of rights recognition and nation-to-nation, government-to-government negotiations and relationships with the Crown. The Supreme Court of Canada’s decision makes it clear that Parliament simply passing legislation that does not even consider Indigenous rights or ignores the promises the Crown has made to our governments will not be simply be ignored by the courts.”
Métis lawyer Jason Madden, who represented both the MNA and MNO noted, “The honour of the Crown, as a constitutional principle, is playing an increasingly important role in the development of Aboriginal law generally as well as moderating the relationship between governments and Indigenous peoples as the national project of reconciliation continues.”
“We are pleased that the entirety of the Supreme Court of Canada recognizes the unique purpose of the honour of the Crown, as a constitutional principle, and that its full legal force has been once again confirmed and protected by the highest court in Canada,” concluded Madden.
SOURCE – Métis Nation of Ontario
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