John Ivison: NDP First Nations bill shows the party’s struggle to appear credible
John Ivison | Jan 28, 2013 8:26 PM ET | Last Updated: Jan 28, 2013 8:37 PM ET
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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 Minister-in-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.
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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.
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 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.”
National Post
jivison@nationalpost.com
