A bill to wreck reconciliation

The Trudeau government has decided to support a private member’s bill, C-262, that would require the adoption of measures to make Canadian law “consistent” with the United Nations Declaration on the Rights of Indigenous Peoples. UNDRIP is not widely known in Canada. Its intentions are pure, but it is worded in far-reaching and ambitious generalities. If adopted by Parliament, it would dismantle our courts’ carefully constructed approach to reconciliation.

Canada has been working slowly since 1982 to elaborate the meaning of S. 35 of the Constitution Act, which recognizes the Aboriginal and treaty rights of Canada’s Aboriginal peoples. Much of the work has fallen to the courts. Legislators have mostly been silent except when — as in the case of gender equality — they have been hounded by the courts to modernize the Indian Act. Slowly, expensively, and with little public input, the Supreme Court has constructed a framework requiring respect, consultation, accommodation of Aboriginal interests and appropriate compensation when the greater social interest demands infringement of S. 35 rights. The court, in encouraging negotiation, has strengthened the hitherto weak hand of the Aboriginal peoples. This ongoing process has already gone a long way to redress historic wrongs.

The executive branch of government has moved, too. It recognized self-government as an “inherent right,” has negotiated modern treaties, and has passed legislation allowing First Nations to clamber out from under the suffocating blanket of the Indian Act. This too is a slow evolution, but the arc of history is bending toward justice. In Canada, with scant guidance from legislatures, the rules developed by the Supreme Court have done much to reconcile the views of Aboriginal communities as to the reach of their S. 35 rights with the often very different concepts of governments, developers and landowners.

Around 1992, representatives of Indigenous peoples from around the globe began meeting to scope out an extension of the 1948 Declaration on Human Rights, focusing on the rights of peoples crushed in the great race for imperial dominion that characterized the last several centuries. Many years of earnest debate produced UNDRIP, the first UN declaration to be the work of Indigenous peoples themselves. As such it is a broad document aimed at many countries, full of statements of hope and aspiration.

Adopted by the UN in 2007 as a non-binding statement of principles, even its drafters recognized it could not be parachuted holus-bolus into national laws. Its 46 articles range widely, using stirring, imprecise, but unequivocal language. Topics include taxes, land management, all aspects of culture and selfdetermination. The instruction that inserting UNDRIP into national law should be subject to “such limitations as are determined by law and in accordance with international human rights obligations” is qualified by the caution that the limitations must be non-discriminatory and strictly necessary.

Two articles of particular interest are articles 26 and 19. Article 26 protects Aboriginal rights to all “lands, territories and resources” they have traditionally occupied. There are neither definitions nor exceptions — for example, to land ceded by treaty. And Article 19 requires Parliament and the provincial legislatures to obtain the “free, prior and informed consent” of Indigenous communities prior to adoption of legislation or administrative measures “that may affect them.”

Free, prior and informed consent is not a right of anyone in our parliamentary democracy; our representatives thrash out the necessary compromises. Making all Canadian laws consistent with UNDRIP, as C-262 demands, would not just give Aboriginal Canadians rights not enjoyed by other Canadians, it would concede to small groups of them an absolute veto on many issues of resource development. This would be carrying the Supreme Court’s rebalancing of negotiating strength too far.

But perhaps our government regards UNDRIP as general guidance rather than strict law. This seems to be what Justice Minister Jody Wilson-Raybould meant when she told a silent and sullen Assembly of First Nations last year that immediate adoption was “unworkable,” and that this would be the work of generations, involving much earnest and good-faith debate before results were crystallized into law. But if so, why did the government cave in to the stentorian and unequivocal words of the author of C-262, MP Romeo Saganash, which require that the government “must take all measures necessary to ensure” consistency of Canadian law with UNDRIP?

As a legislative technique, this is unique in our experience. Courts dealing with S. 35 issues would be confronted with the need to reconcile established constitutional and case law, developed without parliamentary input, with a parliamentary declaration that UNDRIP “must” be adopted, but without specific and detailed legislative enactments. We don’t know what the courts would make of this. What we do know is that it would throw an enormous spanner into the series of Supreme Court decisions mentioned above, and might make impossible the balancing process laid out by the Supreme Court. Bill C-262 should be withdrawn.