Further To The Badgering About Aboriginal "Consent."

Here's some backstory, from my Ottawa Citizen op-ed blog.

In my Ottawa Citizen column this week, "Peering into the abyss of First Nations neglect", I lead off with what you could call a teachable moment that occurred in a testy exchange between Liberal elder Bob Rae and the CBC's Terry Milewski. The back-and-forth occurred at the Ottawa press conference that was called to talk about the terms that ended Attawapiskat Chief Theresa Spence’s six-week liquids-only fast - as the Aboriginal People' Television Network called it.

Rae gave Milewski a bit of a tongue-lashing for the tone he took in his question about whether it is realistic to expect fulfillment of the ambitious 13-point fast-ending declaration that Rae himself had played some sort of role in putting together as a means to convince Chief Spence to call it quits and go back home.

In my column I take Rae to task specifically for browbeating Milewski about his question about the commitment by the Assembly of First Nations and the Opposition parties to ensure that “all federal legislation has the free, prior and informed consent of First Nations where inherent and treaty rights are affected or impacted.” Milewski referred to this as an apparent demand for an aboriginal  "veto."

I quote Rae as saying: "That is the law today." Also: "That’s the law of Canada." The full quote: "That is the law today, Terry. That is not unrealistic. That's the law of Canada." A little later: "That is the law of Canada, as it has been expressed and interpreted by the Supreme Court of Canada."

I pointed out that in fact, the law in Canada provides for no such thing, and so long as “inherent and treaty rights” can mean whatever anyone says they mean, the words themselves are meaningless anyway. To the extent that the courts have given the words enforceable meaning in specific cases, the ways that aboriginal rights are merely “affected or impacted” requires no consent at all.

Further: The courts have been quite clear that “consent” is desirable in cases where aboriginal rights will be unavoidably infringed; When provinces enact regulations that, say, restrain aboriginal hunting and fishing rights, consent might even be necessary. But even the leading Canadian case on aboriginal title — the landmark 1997 ruling Delgamuukw Versus the Queen — makes it plain that governments are perfectly entitled to infringe upon aboriginal rights for any number of reasons.

These reasons include forestry, mining, the construction of hydroelectric dams, agriculture, economic development generally, and “the settlement of foreign populations to support those aims,” as the judges in Delgamuukw put it. Aboriginal rights will be unavoidably affected by these things. Aboriginal consent is not required.

Seven years after Delgamuukw, in 2004, the Supreme Court of Canada elaborated on the matter of aboriginal consent in Haida Nation Vs. British Columbia (Minister of Forests). The judges ruled: "The process of consultation and possible accommodation does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim. The Aboriginal 'consent' spoken of in Delgamuukw is appropriate only in cases of established rights, and then by no means in every case. Rather, what is required is a process of balancing interests, of give and take."

It's important that what's really going on here is right out in the open.

The matter of "consent" has been popping up in Idle No More rhetoric from the beginning, usually by way of reference to the UN Declaration of the Rights of Indigenous Peoples. Specifically, the foundational claim that Idle No More made for itself was that eight statutes introduced and passed by the Conservative government, including its massive omnibus Bill C-48 (which is to say pretty well the entire Conservative legislative agenda for last fall's sitting of the House of Commons) was in violation of the UN Declaration.

 Specifically, Idle No More claimed that all these laws violate the UN Declaration's Article 19: "States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them."

That's a really, really badly written article. Practically any law in Canada could be said to "affect" aboriginal Canadians because aboriginal Canadians are citizens. It would be interesting to know whether the New Democrats and the Liberals understand the implications of their agreement with the substance of Article 19, and further by specifically agreeing with Chief Spence, in her declaration, on "the full implementation of the United Nations Declaration of the Rights of Indigenous Peoples." 

In Canadian law - and indeed in U.S. and Australian law - the courts most certainly do not require aboriginal consent even to laws or administrative measures "that may effect them." Bob Rae was wrong to say otherwise - but is he saying this is what he wants? Is this what the NDP proposes? What might this mean, exactly? How would it work? I know Terry Milewski can drone on a bit, but aren't these fair questions?
Ottawa took a bashing for failing to sign on to the UN Declaration back in 2007 (I gave the Conservatives a bit of a bashing about it myself). There was no reason the Conservatives could not sign on, with caveats - besides, the UN declaration is "aspirational" and unenforceable anyway. And indeed, when Ottawa did sign on in November, 2010, Ottawa did so in good faith, and after registering its caveats, not least was the caveat that "free prior and informed consent" should not be construed as agreeing to an aboriginal  "veto."
Here's how Canada explained itself: "These concerns are well known and remain. However, we have since listened to Aboriginal leaders who have urged Canada to endorse the Declaration and we have also learned from the experience of other countries. We are now confident that Canada can interpret the principles expressed in the Declaration in a manner that is consistent with our Constitution and legal framework."

Is Bob Rae now saying we should be interpreting the UN Declaration in some other way? 

Don't get me wrong. I like Bob Rae, and he was being an honest broker and a decent statesman by trying to find a way for Chief Spence to listen to her own band members and most of her fellow chiefs and walk off Victoria Island with some dignity.

But malarky is malarky, all the same.