Last week, the Supreme Court of Canada ruled that the Crown's duty to consult Indigenous peoples on decisions that may affect their rights does not extend to the drafting of legislation. Cabinet ministers and regulators still have a duty to consult on executive decisions that could affect treaty rights, but that consultation, according to the Court, does not need to happen before legislation is tabled.

For some critics, this decision reinforces the limitations on the duty to consult as a concept that protects the rights and interests of First Nations, Métis and Inuit. But while the Court has closed the door to one avenue for the protection of Indigenous interests in the legislative context, another option remains open. Indeed, it is worth examining what may increasingly become an important venue for consultation: the Senate.

'Independent' senators

In early 2016, the Liberal government established a new "non-partisan, merit-based" advisory process for Senate appointments (full disclosure: I provided unpaid, non-partisan advice to the government on what the process should look like). "Independent" senators soon became a sizeable plurality of the upper chamber's membership.

Many commentators have noted that the change has resulted in a more activist Senate, with relatively frequent amendments to government bills (these claims are somewhat overstated). But a more significant and less visible development is a major spike in third party lobbying in the upper house. The number of times lobbyists contacted senators in 2017 doubled over the previous year, and was six times the number in 2015.

This marked increase in interest group activity is a reflection of recognition by civil groups, charities and business organizations that many senators are now free from partisan constraints and whipped votes. In some respects, independent senators have more legislative power than a backbench MP: not only are they free to speak out on issues, but they are also able to vote how they wish and to propose amendments.

As such, the Senate may become an increasingly important site for Indigenous activism. Indigenous interests are not simply analogous to just any other advocacy group; the prime minister has made ensuring Indigenous representation in the Senate a priority, appointing six Indigenous senators in just under three years, bringing the total to nine members (8.6 per cent of Senate seats, relative to 3.3 per cent representation in the House of Commons).

The Senate has had an important influence on legislation under the current Parliament, with senators proposing amendments to bills implicating everything from medical aid in dying to cannabis legalization. In relation to the latter, the government prevented an indefinite delay of the bill by promising the Senate's Standing Committee on Aboriginal Peoples a full report within 12 months of legalization in regards to steps it has taken to address concerns from Indigenous communities.

The Senate's committee work, then, is extremely important. And it enjoys the power to call witnesses and hear testimony from stakeholders in an independent fashion. In other words, the Senate has the capacity to ensure at least some degree of consultation on legislation when the government has fallen short.

Last Thursday's Supreme Court ruling concerned omnibus legislation, passed by the previous Conservative government, that made changes to environmental regulation, which had implications for Indigenous interests. It is unlikely such legislation would receive a smooth ride under today's Senate, which has established a track record of intense scrutiny and a willingness to propose amendments.

A complementary role

None of this is to say that the Senate will be powerful enough to block or defeat legislation that is unpopular with Indigenous communities. The Senate's sober second thought role means the upper house is intended to serve as a complementary, rather than competitive, body to the House of Commons. Barring severe constitutional problems with a particular bill, the appointed Senate is generally expected to defer to the will of the elected chamber.

Thus far, the new Senate has not acted in an obstructionist manner. The government (and the House of Commons) has accepted some amendments and rejected others under the current Parliament. And the Senate has, in all but one case (a transportation bill), dutifully passed the legislation (the transportation bill was passed following one additional round of ping pong after the Senate decided to propose further amendments). The current Senate has never attempted to defeat government legislation outright, something that has occurred only five times since 1988.

But in the context of a government that has spent considerable energy promising a new approach to reconciliation with Canada's Indigenous communities, it will be difficult to ignore substantive advice, amendments, or objections from the Senate when they are articulated in a manner defending and promoting Indigenous interests. A more robust and independent Senate may be able to prevent and constrain unprincipled government action, at least some of the time, and in the absence of judicial review, it may become an alternative avenue to furthering reconciliation.

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