December 9, 2020 | By Julius Melnitzer
The Liberal government’s introduction of legislation implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is nothing more than fluff: it’s unworkable and gives our Aboriginal neighbours false hope about its potential.
Why is it that after 150 years of persecuting our Aboriginal neighbours, we still insist on misleading them? Why do we keep shrouding their hopes in mist?
Justin Trudeau pleased many when Canada announced that it was a “full supporter” of UNDRIP in May 2016. Put aside that came some 10 years after the General Assembly’s adoption of the declaration with a huge majority that featured Canada as one of only four naysayers.
And naysayers we should remain. One of UNDRIP’s key foundations is the right of Indigenous people to free, prior and informed consent (FPIC). The difficulty is that no one has the right to free, prior and informed consent in all matters affecting them. If they did, the country would be ungovernable, as it would amount to nothing less than a veto over government policy. Yet many academics, and some of the more radical First Nations advocates, support Canada’s adoption of UNDRIP and FPIC in their broadest manifestations.
The Harper government voted against UNDRIP, concerned about international principles that suggested incompatibilities with our Constitution. But the truth is that FPIC should not and will not never happen, and Trudeau should not continue to suggest that it will.
The Liberals are going a long way to making amends as best they can. They are engaging, I believe, with Aboriginal peoples to forge a dynamic under which the people who inhabit this country will co-exist now and in the future.
Reference the “co” part of “co-exist.” It embraces the notion of reconciliation that imbues the Supreme Court’s jurisprudence on the duty to consult. But remember also that this is not a consultation between private parties: Aboriginal representatives speak for their people; the government speaks for all people.
In this scenario, a veto — the prospect of which, to my mind, sucks good faith from negotiations even before they start — just isn’t in the cards. But how fair is that, some may ask: the Crown ultimately has a veto, so why shouldn’t First Nations? This argument misses the point: it ignores the nature of government and governing. Before it ever gets to a veto, the Crown has a duty: the veto, if necessary, is merely one exercise of that duty.
The Supreme Court said as much in a 2017 decision involving the religious rights of the Ktunaxa Nation. “There is no guarantee that, in the end, the specific accommodation sought will be warranted or possible,” the majority wrote. “The ultimate obligation is that the Crown act honourably.”
In other words, Indigenous people have right to free, prior and informed consulation: an honest opportunity to arrive at a consensus with the rest of the country, but not the final say.
Any suggestion that the proposed legislation means that Canada will adopt interpretations of UNDRIP and FPIC that undermine the government’s constitutional authority is nonsense. To be sure, it’s hardly fashionable to speak against FPIC these days, which is why some businesses are starting to voice their support for UNDRIP’s adoption. But the likelihood is that they are no more sincere than the government about their true intentions.
“Industry associations are playing with words so they can say favourable things about UNDRIP,” said Thomas Isaac, an Aboriginal law expert in Cassels Brock & Blackwell’s Vancouver office. “But dig deeper and you’ll find that what they mean is that FPIC refers to consultation, not consent, and that consent is an objective but not a requirement.”
And why not play with words? After all, what’s good for the goose, as in the government, is good for the gander, as in the business community. Consider, for example, the statement of 10 principles that the government released, also in 2017, regarding its relationship with Indigenous peoples. The document, meant mostly for the federal bureaucracy, talks about consulting and co-operating “with the aim [emphasis added] of securing [Indigenous peoples’] free, prior and informed consent.” But, as Dwight Newman, an expert on FPIC, pointed out in the Globe and Mail, that’s not what UNDRIP says: that document requires consultation and co-operation “in order [emphasis added] to obtain their free, prior and informed consent.”
Canada’s way ahead of the rest of the world in its progressive stance on Aboriginal rights. Why doesn’t the government make us proud and say what it means? Especially when Trudeau knows going any further is nothing less than an unconstitutional delegation of power to an — albeit deserving — interest group.