Leg­is­la­tion must not erode abo­rig­i­nal rights

Ottawa Citizen - - ARGUMENTS - CON­STANCE BACK­HOUSE AND WIL­TON LIT­TLECHILD Con­stance Back­house is Univer­sity Re­search Chair in the Fac­ulty of Law at the Univer­sity of Ot­tawa. Wil­ton Lit­tlechild is In­ter­na­tional Chief of Treaty 6, 7 and 8. The opin­ions ex­pressed here are sup­ported by Inu

For al­most 15 years, the fed­eral De­part­ment of Jus­tice has con­ducted a cam­paign to erode the con­sti­tu­tional and le­gal sta­tus of abo­rig­i­nal and treaty rights in Canada. In do­ing so, it has also cam­paigned to re­duce the role of Par­lia­ment in its over­sight of such rights. How has this hap­pened? Abo­rig­i­nal peo­ples have a cen­tral place in Cana­dian his­tory and in con­tem­po­rary Cana­dian life. The re­la­tions be­tween abo­rig­i­nal peo­ples and the Crown have fig­ured promi­nently in Canada’s con­sti­tu­tional and po­lit­i­cal evo­lu­tion. Those re­la­tions have not al­ways been con­struc­tive or just. Treaties have of­ten been onesided and con­tinue to be vi­o­lated. Laws, such as the In­dian Act, have of­ten been op­pres­sive. We all live with that legacy.

The pa­tri­a­tion package of con­sti­tu­tional re­forms in 1982 of­fered some new think­ing. Sec­tion 35 of the Con­sti­tu­tion Act, 1982 rec­og­nized and af­firmed the ex­ist­ing abo­rig­i­nal and treaty rights of abo­rig­i­nal peo­ples, and guar­an­teed th­ese rights el­e­vated con­sti­tu­tional sta­tus.

Many abo­rig­i­nal peo­ples hoped that sec­tion 35 would guar­an­tee abo­rig­i­nal and treaty rights as strongly as fed­eral and pro­vin­cial pow­ers are guar­an­teed un­der the Con­sti­tu­tion. As treaties with abo­rig­i­nal peo­ples are them­selves the prod­ucts of many com­pro­mises, it seemed coun­ter­in­tu­itive that the courts would per­mit one party to those treaties — the Crown — to be able to uni­lat­er­ally re-work those com­pro­mises in its favour. This was re­flected in the in­clu­sion of sec­tion 35 in a sep­a­rate part of the Act than the Char­ter of Rights and Free­doms, which placed it out­side the reach of the lim­i­ta­tions con­tem­plated by Sec­tion 1.

Sub­se­quent court de­ci­sions, notably the 1990 Supreme Court of Canada in R. v. Spar­row, de­ter­mined that con­sti­tu­tional pro­tec­tion for abo­rig­i­nal and treaty rights is not ab­so­lute, that, in lim­ited cir­cum­stances they could be “in­fringed” by new laws. But the court did try to set the bar high. Only laws that could be jus­ti­fied against a se­ries of tests in­volv­ing such things as con­sul­ta­tion and ac­com­mo­da­tion, con­sis­tent with the hon­our and good faith of the Crown, could validly in­fringe. The court later added that the Crown’s duty to con­sult would re­quire the full con­sent of the abo­rig­i­nal na­tion “on very se­ri­ous is­sues.”

Up un­til 1995, new fed­eral laws rou­tinely in­cluded a “non-dero­ga­tion” pro­vi­sion, which pro­vided com­fort to abo­rig­i­nal peo­ples that new leg­isla­tive projects were not de­signed to have un­in­tended side ef­fects that would be hos­tile to abo­rig­i­nal and treaty rights. But in laws drafted since 1995, the De­part­ment of Jus­tice has ex­per­i­mented with re­plac­ing the clear non-dero­ga­tion lan­guage with many weaker vari­a­tions, which have trended to­wards a blur­ring of, and even­tual over­turn­ing of Par­lia­ment’s pre­vi­ously clear pre­sump­tive in­ten­tion not to di­min­ish abo­rig­i­nal and treaty rights in new leg­isla­tive projects.

When this trend was spot­ted by abo­rig­i­nal rep­re­sen­ta­tives the Se­nate Stand­ing Com­mit­tee on Leg­isla­tive and Con­sti­tu­tional Af­fairs in­ves­ti­gated and pro­duced a thought­ful report in De­cem­ber 2007, sup­ported across party lines, ti­tled “Tak­ing Sec­tion 35 Rights Se­ri­ously: Non-dero­ga­tion Clauses re­lat­ing to Abo­rig­i­nal and treaty rights.”

The Se­nate com­mit­tee urged that the fed­eral In­ter­pre­ta­tion Act be amended to in­clude a gen­eral pre­sump­tive rule that new laws be in­ter­preted to up­hold rather than erode abo­rig­i­nal and treaty rights. This pre­sump­tion could be re­but­ted; Par­lia­ment would, con­sis­tent with the Con­sti­tu­tion and court rul­ings, main­tain the power to in­fringe abo­rig­i­nal and treaty rights, but would re­serve the dis­cre­tion care­fully to it­self. This In­ter­pre­ta­tion Act ap­proach has al­ready been em­ployed in Man­i­toba and Saskatchewan at the pro­vin­cial level, with no prac­ti­cal prob­lems.

The De­part­ment of Jus­tice ig­nored the Se­nate rec­om­men­da­tions. With the word­ing of a pro­posed new law, the Safe Drink­ing Water for First Na­tions Act, the cam­paign to erode the con­sti­tu­tional and le­gal sta­tus of abo­rig­i­nal and treaty rights has come full cir­cle.

For the first time, a new law would in­clude an ac­tive “dero­ga­tion” pro­vi­sion; that is, the pro­posed law ex­plic­itly states that abo­rig­i­nal and treaty rights deemed to be in con­flict with the law’s stated ob­jec­tive will not be re­spected. And for the first time, a new law would con­tra­dict prom­ises made to abo­rig­i­nal peo­ples in treaties as to the in­ter­pre­tive pri­macy of those treaties.

Many abo­rig­i­nal peo­ples are des­per­ate for im­proved water sup­ply af­ter decades of fed­eral un­der­fund­ing. In a cruel fea­ture of the new law, el­i­gi­bil­ity for fu­ture fed­eral fund­ing sup­port for im­proved water ser­vices would be tied to will­ing­ness to live un­der the new dero­ga­tion regime cre­ated by the pro­posed law.

The new law has been devel­oped with­out the re­quired con­sul­ta­tion with those af­fected. There has been no re­spect for the “free, prior and in­formed con­sent” test that has been em­bed­ded in the 2007 United Na­tions Dec­la­ra­tion on the Rights of In­dige­nous Peo­ples, a uni­ver­sally ac­cepted hu­man rights dec­la­ra­tion that the fed­eral government now claims to en­dorse.

All of this, of course, is bad news for abo­rig­i­nal peo­ples. But per­haps equally dis­turb­ing for all Cana­di­ans is the tech­nique adopted in the new law that al­lows fu­ture ero­sion of abo­rig­i­nal and treaty rights to be car­ried out through the ex­ec­u­tive branch of government by way of reg­u­la­tions. Reg­u­la­tion writ­ing is, of course, the spe­cial province of De­part­ment of Jus­tice of­fi­cials. Un­like the case with new statu­tory pro­pos­als, which must go through three read­ings and com­mit­tee re­view at House of Com­mons and Se­nate stages, Par­lia­ment has vir­tu­ally no say with re­spect to new reg­u­la­tions.

Canada’s high­est court has af­firmed that the re­spect and pro­tec­tion of ex­ist­ing abo­rig­i­nal and treaty rights is an un­der­ly­ing con­sti­tu­tional prin­ci­ple and value. Given Canada’s colo­nial his­tory to­ward abo­rig­i­nal peo­ples, the re­spon­si­bil­ity of Par­lia­ment is par­tic­u­larly im­por­tant in safe­guard­ing the rights and in­ter­ests and dig­nity of abo­rig­i­nal peo­ples, and the re­li­a­bil­ity and dura­bil­ity of their fun­da­men­tal rights. Par­lia­ment must not sur­ren­der its re­spon­si­bil­ity to of­fi­cials who would pre­fer that any de­bate as to how much re­spect be given to abo­rig­i­nal and treaty rights be con­ducted be­hind bu­reau­cratic closed doors.

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