Article 19 may give natives veto

Article 19 says states must obtain the “free, prior and informed consent” of indigenous people before implementing legislation that may affect them.

Since all natives are, like it or not, legally Canadian citizens, just about every piece of legislation passed by Parliament affects them.

There is debate in legal circles over whether Article 19 would give native Canadians a broad veto over legislation.

Sébastien Grammond, dean of civil law at the University of Ottawa, believes it does not. “If you wanted to grant a veto, you would have framed it differently,” he said, suggesting that the intent of the article should be interpreted as requiring free, prior and informed consultation.

In theory, First Nations already have that right under Section 35 of the Constitution Act, which has evolved into the duty to consult. This is the cause of much of the current bubbling anger over the budget implementation act — native groups like the Idle No More activists claim aboriginals were not consulted on changes to the environmental review process.

But even court rulings favourable to First Nations have made it clear that aboriginal rights are not absolute and can be broached for any number of reasons.

Implementation of the UN

In theory, First Nations already have that right

Declaration has the potential to go beyond mere consultation and require First Nations consent. Dr. Grammond says it was never intended to be applied by courts in the same way as the Charter of Rights.

Yet this is precisely what Mr. Saganash has in mind. At his press conference, he said he wants the courts to interpret and implement the Declaration where it is incompatible with existing law. Dr. Grammond does not think this would give First Nations the right to block legislation but concedes it would be a matter of interpretation.

And what then? If the past month has taught us anything it’s that First Nations politics is as vicious and fratricidal as anything on show in the House of Commons. Public policy in this country would be at the mercy of regional chiefs with divergent, if not contradictory, ambitions and interests.

It is unlikely to come to that. For one thing, the NDP does not have the votes in the House to pass the bill; for another, private members’ bills cannot oblige the government to spend money, which harmonizing existing legislation with the Declaration would surely do.

But it speaks to the mindset of the Official Opposition. Parties who are on the cusp of power try not to saddle themselves with dumb legislation that comes back to bite them in office. It is a measure of where the NDP believes itself to be that it is even considering pushing for implementation of the Declaration.

As another of Canada’s eminent constitutional scholars put it: “MPs in opposition take a very different view than those in government who have to deal with the fallout.”