Vague laws, not UNDRIP, the threat

The current row over Indigenous fishing rights has the Maritimes on edge. Over the past 20 years, the implementation of the Supreme Court's Marshall decision has led to the most successful commercialization of Indigenous harvesting rights in Canadian history. But the issue has now become a tinder box that threatens to engulf the whole region.

The Supreme Court decision affirmed the Indigenous right, based on 18th-century treaties with Maritime First Nations, to fish for commercial purposes. Yet the judgment said that First Nations have the right to earn a “moderate livelihood,” which is a vague and undefined term. It also left the matter of Indigenous involvement in the management of natural resources unresolved.

These are complex and difficult issues. Expanding Indigenous fishing inevitably runs up against the non-Indigenous commercial fishery. Expanding Indigenous involvement in fishery management, similarly, would challenge existing management systems while giving First Nations a formal role that exceeds that of non-Indigenous fishers.

These problems were evident more than 20 years ago, and years of difficult negotiations did not bring about a resolution. The uncertainties of 1999 have become a powder keg today. First Nations are tired of waiting for a solution to these issues, for the simple reason that they pay disproportionately for the delays, in the form of lost employment and income, as well as continued marginalization and the social despair that results from it.

Canadian governments have been notorious for delaying the resolution of Indigenous legal and treaty rights, largely because of the complexity, cost and consequences of moving promptly toward a resolution. As a result, many Indigenous legal challenges are trapped in long and expensive court processes that federal authorities likely anticipate the Crown will lose.

Uncertainty carries significant costs. For the most part, these are borne by Indigenous peoples who have waited generations for equitable and appropriate resolutions. But non-Indigenous people and businesses pay, too, through planning difficulties and increased risks, including the possibility that future political and legal decisions will make their business plans and capital investments obsolete or unprofitable.

The Marshall decision and subsequent Indigenous fisheries policies show the dangers of leaving major legal and regulatory guidance undefined.

Now, the government of Canada is getting set to inject an even larger degree of uncertainty into the Canadian political and regulatory environment by actively working to adopt the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into legislation.

Make no mistake, UNDRIP is a vital initiative. It provides a comprehensive and widely supported articulation of the extent and intensity of Indigenous dispossession and marginalization. It lays out a remarkably complex description of the range of policy fields and initiatives required to provide a measure of social, economic and cultural justice to Indigenous peoples.

But the legislation to implement it, as proposed by the federal government, is unacceptably vague and noncommittal. As legal expert Gib van Ert has said, the text of the bill is “so beyond our usual legislative lexicon that its effects on Canadian law are matters for speculation when they ought to be straightforward.”

Undoubtedly, where legislators fail to provide clarity, Canadian courts will be called to opine. Like “moderate livelihood,” the meaning of “free, prior and informed consent” will have to be defined in black and white at some point. It is far preferable for Canadian governments, Indigenous peoples and industry to work together to find an acceptable definition of these terms, than it is to kick the can down the road to the courts and wait for other conflicts to erupt.

The uncertainty resulting from the Marshall decision does not hold a candle to the unpredictability that will surround Canadian law and policy following an incautious adoption of UNDRIP.

THE UNCERTAINTIES OF 1999 HAVE BECOME A POWDER KEG TODAY.

As the current dispute in Nova Scotia makes clear, this benefits no one.

But there is an alternative. After discussions with Indigenous leaders, the government of Canada could pass legislation, ideally with all-party support, that affirms the country's commitment to the principles laid out in UNDRIP.

That same legislation could outline a process under which government and First Nations could engage with each other to select specific UNDRIP articles and take immediate action on them. Rather than a broad, ambiguous and unachievable commitment to UNDRIP, the federal government would do far better to work with Indigenous peoples to tackle the issues of highest priority. New Zealand has adopted a similar, action-oriented approach, as many have become disenchanted with bold gestures.

UNDRIP is not a threat to Canada. But the rash introduction of a broad and ill-defined set of promises and commitments will create endless uncertainty.

Canada has an urgent need to address the fundamental injustices imposed on Indigenous peoples. UNDRIP provides a road map and an agenda for effective, clear and specific action. The government's UNDRIP legislation does not.