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The Senate may become an increasingly important site for Indigenous activism

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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.

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........