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Brian Giesbrecht

UNDRIP – Yet Another Duty To Consult

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The Final Report of the Truth and Reconciliation Commission  called for The United Nations Declaration On The Rights of Indigenous Peoples (UNDRIP) to become the law of Canada. This is a very bad idea for many reasons.

In the first place, enacting a law that would make all legislation and proposed legislation subject to UNDRIP could render Canada virtually ungovernable. This fact was even recognized by Canada’s current Minister of Justice when she stated that “adopting the UNDRIP as Canadian law is unworkable“. The Minister of Justice is herself Indigenous, and a member of the most Indigenous-obsessed government in the history of Canada, and yet she had to make this frank and honest admission. This is strong evidence that the TRC’s call to have Canada adopt UNDRIP as Canadian law is not a sound recommendation.

The current government should have accepted this candid opinion from its top justice official and been content to accept UNDRIP as an aspirational document, as The United States, Australia and New Zealand* have done. Those countries have no intention of giving special interest groups a virtual veto over all of their laws, or surrendering their autonomy to highly political United Nations bodies. Instead, in its zeal to win the approval of Indigenous leaders, this ideological federal government has recklessly launched all of us into a very uncertain future by beginning the process to enact UNDRIP into law, thus making every Canadian law – enacted or proposed – subject to the will of one small part of the population.

It should be remembered that the Liberal party, when still in opposition, pledged to enact all 94 of the TRC’s Calls to Action on the very day that the TRC Report was released. The then leader of the opposition enthusiastically made this promise before he had even read the report. The UNDRIP call was included in that promise. Even after taking office, Minister Carolyn Bennet naively repeated Trudeau’s intention to make good on this promise, “without reservation”.

Then reality set in. The Minister of Justice acknowledged this when she stated the obvious- that making UNDRIP Canadian law would virtually hamstring the government. It would introduce yet another “duty to consult” Indigenous people on any proposed legislation that might impact them collectively. This would mean that virtually all legislation would have to win the approval of Indigenous groups – an almost impossible and economically crushing task.

At the present time, the “duty to consult” required by the Supreme Court has given Indigenous groups a virtual veto over proposed resource development projects. Although only 3.2% (2016 Census) of Canada’s population are status Indians, and although less than half of that 3.2% live on reserves, the recent pipeline controversy demonstrates clearly that less than 2% of the population that live on reserves have a virtual stranglehold over resource development. The fact is that the rather innocent and fair sounding “duty to consult” concept invented by our activist Supreme Court has become a major money-making business for Indigenous politicians. It has also brought resource development in this country to a virtual halt.

If another international “duty to consult” requirement was introduced by the adoption of UNDRIP as Canadian law, resource development, along with anything else that might possibly affect Indigenous communities, could be severely hampered. There are approximately 625 reserves, or First Nations, in Canada. Each of these groups would have to approve proposed legislation – i.e., their price would have to be met – before any bill even remotely affecting them could become law. Would UNDRIP give each of these 625 communities a veto over any new law? If it does, it must be stressed that UNDRIP would extend the “duty to consult” veto, or virtual veto to to all legislation, and not just resource development legislation. Bill C-262 endeavours to bring all laws “into harmony” with UNDRIP. Those words alone could keep an army of lawyers employed for years. The governing structure of the country, as well as the court system, could be tied up in knots.

One must say “could” because it is simply impossible to know what will happen if Canada adopts UNDRIP as law. The fact is that Canadian Indigenous law is made by the Courts and not by Parliament. This introduces uncertainty, as there is no legislative control of the unelected judges who can – and do – literally invent new law on the fly. The latest Federal Court ruling striking down the federal government’s efforts at meeting their “duty to consult” mandate is a case in point. No one saw it coming. If this ruling is an indication of how far the courts are prepared to take duties “to consult in a meaningful fashion” it seems as though these duties will be major stumbling blocks for any development project anywhere near an Indigenous community. It also means that there will be similar unpleasant court surprises in the future.

All of this spells more uncertainty. As we cede more and more power to the courts we should bear in mind that there is nothing magic about the courts – they are just people doing their best to make decisions. Those people are not elected, and the question of how much their decision will cost the taxpayer is not their major concern, not are the courts equipped to properly assess cost issues.

We should remember that the original “duty to consult” mandated by our Supreme Court sounded innocent enough when it was originally pronounced. No one foresaw that it would turn into the almost insurmountable roadblock that it now is. Would an additional UNDRIP duty to consult go the same way? It might not be as bad. On the other hand, it might be even worse. There is no any of knowing. Parliament will have no control. It will all be up to judges in Canada, and possibly very political United Nations bodies.

And that leads to the other vexing problem introduced by enshrining UNDRIP into Canadian law – namely, the possibility that decisions of the Canadian government could be appealed to the United Nations. This again, “could” have a disastrous effect. We don’t know. It might mean that countries such as Saudi Arabia and North Korea – nations that have no understanding of either human rights or the Canadian reality- would make decisions that could affect many aspects of life in this country. Playing politics in order to advance sinister agendas – or embarrass one’s enemies – takes place with regularity at the United Nations, and the laws of Canada would be subject to this mischief making.

We don’t know exactly what UNDRIP would mean if enacted into law as something more than an aspirational document. What we do know with certainty is that the combination of determined Indigenous leaders with an agenda, and their well paid lawyers, has consistently forced changes that have been very hard on the taxpayer, and very difficult for business to accommodate. The best course is not to take the chance.

There are very good reasons why democratic governments with colonial pasts and Indigenous populations, such as The United States, New Zealand and Australia have refused to recognize UNDRIP as anything more than an aspirational document.

It is true that many nations have signed on to UNDRIP, but it must be noted that many of those countries have no Indigenous populations, and of those that do their poor human rights records makes it clear that they have no intention of actually improving human rights for any of their citizens. The countries we should look to for guidance on the advisability of adopting UNDRIP as anything more than an aspirational document are democratic countries with good human rights records and similar histories. Those countries are The United States, New Zealand and Australia. All three of those countries have steadfastly refused to make all of their laws challengeable by UNDRIP for very good reasons. We should follow their example.

Even the current federal government- a government that is more determined to win the favour of the chiefs than any previous regime- was forced to recognize this reality. Until now, even this Liberal government recognized that UNDRIP must be regarded as an “aspirational” document – i.e., they recognized the sentiment of treating Indigenous people fairly, but were not prepared to make the country ungovernable in the process.

Previous Justice and Indian Affairs Ministers have gone even further than Wilson-Raybould in voicing opposition to UNDRIP – stating that UNDRIP would not only interfere in the governance of the country, but conflict with The Charter of Rights, and further divide the country. Former Indian Affairs Minister Chick Strahl said UNDRIP was “unworkable in a Western democracy under a constitutional government.

Another former Indian Affairs Minister, the late Jim Prentice said much the same thing. He said of UNDRIP, as it is written: “We have not yet arrived at a text that provides an appropriate recognition of the Canadian Charter, the many treaties that have been signed, and other statutes and policies of the government of Canada…” The certainty of property rights – which is a bedrock of western economic systems- would be thrown open to confusion by writing UNDRIP into law. Even some Indigenous groups oppose UNDRIP as written.

However, there is another equally important reason why enacting UNDRIP as law is a bad idea for Canada. It regards Indigenous people as a collective rather than as individual citizens. Canada has already made the momentous mistake in 1867 of perpetuating the 1763 Royal Declaration’s outdated concept of looking at Indigenous people as a tribe, rather than as individual citizens, and UNDRIP would cement that backward thinking in place permanently.

There should never have been special reference to Indians in the Constitution – they should have been treated as ordinary Canadian citizens. There should have been no such things as reserves. We have paid the price for the colossal error of singling Indians out for special treatment. As a result Indian reserves have left too many Indigenous people poor, isolated and dependent in an odd communist system. Social pathologies have been the inevitable result. UNDRIP perpetuates that unfortunate mindset that treats Indigenous people as a collective composed of wards of the state instead of treating indigenous people like everyone else.

Make no mistake about it: The Indigenous policy that Canada has followed for the past couple of generations – namely giving ever more money and power to chiefs – has been an absolute and utter failure. It is time to abandon that disastrous policy, and treat Indigenous people as individuals as all other Canadians are treated. Achieving legal equality of for all citizens is fundamental to the ability of this country to be successful.

Perhaps an Australian Minister best articulated this important goal. While explaining why making UNDRIP Australian law would be a bad idea, Mal Brough, the Minister responsible for Indigenous matters said “ There should only be one law for all Australians and we should not enshrine in law practices that are not acceptable in the modern world.” Australia signed on to UNDRIP, but only as an aspirational document – i.e. Australian law will not be governed by it. That is what we should do.

Unfortunately the Truth and Reconciliation Commission (TRC) Report supports the current Liberal government’s backward thinking on this subject. It is a strong advocate for the preservation of the malignant status quo. The report says nothing about abolishing the Indian Act and reserve system. Instead it seeks to entrench and expand the legal divisions between the less than 2% of Canada’s reserve dwelling population and the mainstream.

It was inevitable that such reactionary thinking would prompt the commissioners to call for the adoption of UNDRIP as Canadian law. The commissioners are dead wrong about this. Rather than bringing about “reconciliation” the enactment of UNDRIP as Canadian would further entrench the division that now exists between Indigenous people and the mainstream, and make the country ungovernable in the process.

Canada has always been solidly with The United States, Australia and New Zealand In refusing to acknowledge UNDRIP as anything more than an aspirational document. But now it seems that the current government has thrown all caution to the wind, and intends to force UNDRIP through Parliament as Canadian law. Bill C-262 has received third reading in the Commons and first reading in the Senate. Unless wiser heads in the Senate can stop this juggernaut we may soon be saddled with a monster that will destroy jobs, compromise Canada’s economic future, and negatively affect the governance of the country.

The Prime Minister has previously vowed to make his Indigenization agenda impossible for succeeding governments to undo. He has also publicly stated that he is determined to make his view of Indigenous advancement his most important legacy. It seems that he is prepared to do these things at all costs – even if that means severely diminishing the Canadian economy, and making the country effectively ungovernable in the process. The wreckage resulting from the adoption of UNDRIP as Canadian law would benefit no one – be they Indigenous or non-Indigenous.

The sentiment behind UNDRIP is a good one. In many countries Indigenous peoples are treated very poorly by their governments. That is not the case in Canada. Although representing less than 2% of Canada’s population, status Indians on reserves exert a virtual stranglehold on many parts of the country’s resource development at the present time. It cannot be said that they are without power. In terms of revenue from the government, the average reserve family is subsidized to the tune of well over $100,000 per family per year. Status Indians also receive very expensive preferential treatment in the areas of tax exemptions and special educational allowances. Total federal government spending on First Nations comprises a very significant portion of Canada’s annual budgets. In addition, Indigenous people already have special section 35 Charter protection, as well as the “duty to consult” weapon given to them by an accommodating Supreme Court. So, an argument that Canada’s Indigenous people are not being treated fairly by the government is simply not sound. Put simply, Canada’s Indigenous people are currently the beneficiaries of much more than their fair share of government expenditures, and they are already more than sufficiently protected by special legislation.

The acceptance of UNDRIP as an “aspirational” document – i.e. one having no effect in law – appears to be politically necessary, and there is little harm done by making that good faith gesture. But making UNDRIP Canadian law has the potential to irreversibly weaken this country.

UNDRIP should not become law in Canada.

*This article was first published on January 11, 2019, before the Government’s decision to implement UNDRIP was made public.