Mulcair hardly a PM in waiting

Backs bill that may give First Nations a veto

The debate within the NDP has long been about whether it should seek to govern or remain the moral conscience of the nation.

Tom Mulcair seemed to have resolved the internal struggle with his attempt to transform the New Democrats into a credible alternative to the Conservatives. But that assumption may be premature — on the native file at least, the NDP leader has decided to play the role of Robin Hood, rather than Prime Ministerin-waiting.

How else to explain his backing for Romeo Saganash’s private member’s bill that calls for full implementation of the 2007 UN Declaration on Indigenous Rights?

Phil Fontaine, the then National Chief of the Assembly of First Nations, said the Conservative government’s refusal to sign it then was perplexing, since it risked staining Canada’s reputation over what was a purely “aspirational,” non-binding document.

But Jim Prentice, then Aboriginal Affairs minister, was adamant: “To say it is only aspirational overlooks the fact that it contains a number of inconsistencies with Canadian law and policy,” he said.

He pointed to articles that would give indigenous people rights to ownership and use on lands they traditionally occupied, which he said was inconsistent with 200 years of Canadian treaty-making. “How are you going to administer the country?” he asked.

Yet by 2010, Mr. Prentice was gone and Canada was isolated in opposition to the Declaration, so it signed on, with the caveat that it would not be bound by its provisions.

Why should any sitting government be wary of adopting the Declaration? Who could argue against First Nations controlling their own institutions or practicing their own language and culture?

The answer is that the Declaration, if adopted, has the potential to drain power from Parliament and hand it to the courts. Depending on how they interpret the document, it could give First Nations a veto over all manner of legislation.

OTTAWA • Tom Mulcair, the NDP leader, has waded into the national unity swamp, with proposed legislation specifying a bare majority “Yes” vote would be sufficient to trigger negotiations on Quebec’s secession from Canada.

Craig Scott, a New Democrat MP, tabled Monday what his party is dubbing the “unity bill.”

It would repeal the Clarity Act — introduced by thenLiberal prime minister Jean Chrétien after Quebecers came within a hair of voting to secede in 1995 — and replace it with legislation Mr. Mulcair maintained would provide more certainty and be more respectful of Quebecers.

Its introduction Monday was designed to counter a Bloc Québécois motion calling for a total repeal of the Clarity Act.

“Instead of playing the games that the Liberals have always sought to play with this file and dropping us into the void as the Bloc would do, we’re proposing something constructive that is a positive way forward,” Mr. Mulcair said.

Based on advice sought from the Supreme Court of Canada, the Clarity Act spells out a clear majority of Quebecers would have to vote “Yes” on a clear referendum question before the federal government would agree to negotiate terms of a divorce.

The act, passed in 2000, does not specify what would constitute a clear majority.

At the time, Mr. Chrétien and Stéphane Dion, his intergovernmental affairs minister, argued the imprecision was necessary, giving parliamentarians the flexibility to take into account all the factors surrounding the referendum, including voter turnout and whether there had been any irregularities in the vote.

Moreover, they maintained something as fundamental as the breakup of the country should require more than a simple majority.

By contrast, the NDP’s unity bill specifies Parliament must be satisfied the referendum question was clear and there were no “determinative irregularities” in the vote, including in the balloting, counting of votes, transmission of results and spending limits.

Provided those conditions were met, the bill says a vote of 50% plus one would enough to trigger negotiations.

Mr. Mulcair argued that 50-plus-one is a widely accepted threshold for victory, used in both the 1980 and 1995 referendums on Quebec independence and adopted by the United Kingdom for the upcoming vote on Scottish independence.

“No one ever questioned the fact that the side that wins, wins.... No one questions this.”

In its advice to the government, the Supreme Court said both the referendum question and the result must be “free of ambiguity.”

It did not specify an appropriate threshold, leaving that to the political actors, but the justices did indicate repeatedly that they had something more than a bare majority in mind.

At one point, they noted, “Canadians have never accepted that ours is a system of simple majority rule.”