Indigenous Bar Association Challenges Premier’s Understanding Of Law

INDIGENOUS BAR ASSOCIATION CHALLENGES PREMIER’S UNDERSTANDING OF LAW

April 10, 2020

By Alexandria Winterburn, Member-at-large and Brooks Arcand-Paul, Vice President

Premier Brian Pallister’s response to the proposed federal legislation on the United Nations Declaration on the Rights of Indigenous Peoples (“UN Declaration”) implies Premier Pallister has a callow and concerning understanding of Aboriginal and Treaty rights and the fundamental history and laws of this country which has a detrimental effect on the advancement of reconciliation. These comments are incredibly alarming coming from the Premier of Manitoba, where Indigenous peoples comprise almost eighteen (18) percent of the population (over 223, 310 as of the 2016 census) and where legislation on reconciliation has been adopted.

Pallister’s views signal that Manitoba has lost its way on the path it had charted toward reconciliation back in 2016 in the Path to Reconciliation Act. The Indigenous Bar Association (“IBA”), as the national organization representing Indigenous lawyers, judges, academics, law students and clerks in Canada, takes issue with Premier Pallister’s myopic view of reconciliation in Canada and his lack of appreciation of the need to implement the UN Declaration as the basis for that reconciliation..

UN Declaration already woven into Canadian Law

Contrary to Pallister’s spurious claims that federal adoption of the UN Declaration will create “havoc” and “uncertainty,” Canadian courts have and continue to cite the UN Declaration to inform domestic law. Over 70 Canadian cases have considered the UN Declaration and its application. It is a longstanding legal principle that Canadian courts will use conventions, declarations, and treaties supported or adopted by Canada internationally as an interpretative aid when defining and enforcing domestic laws. Afterall, why would Canada have a different standard of conduct at home than abroad?

The UN Declaration is a collection and articulation of existing Indigenous rights and, if passed domestically in law, it can serve as a fundamentally helpful piece of human rights legislation. It has the potential to further reconciliation rather than, as Premier Pallister asserts “undermine[s] genuine reconciliation.” At its core the UN Declaration sets out the pathway for mutually respectful relations between Indigenous Peoples and the state. It has been hailed by countless experts and has been referenced in multiple reports and commissions in Canada as a way to advance reconciliation. For example, in 2012, the Truth and Reconciliation Commission released its Calls to Action, with Article 43 stating “we call upon federal, provincial, territorial, and municipal governments to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation.” In 2019, the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls issued their Calls to Justice, with Article 1.2 stating “[w]e call upon all governments, with the full participation of Indigenous women, girls, and 2SLGBTQQIA people, to immediately implement and fully comply with all relevant rights instructions including but not limited to . . . UN Declaration.”

UN Declaration embodies Duty to Consult

The existing duty to consult, as a constitutional duty on the Crown, is a floor not a ceiling. Governments—possibly not in Manitoba—as well as industry have frequently recognized that projects grounded on the support of Indigenous Peoples are the pathway to advancing reconciliation and securing the economic certainty that Premier Pallister seems so worried about. For example: in 2015 the World Bank adopted standards that incorporate Free Prior and Informed Consent (“FPIC”) for funding decisions of projects impacts Indigenous Peoples; since 2013 the International Council on Mining and Metals has explicitly encouraged approaches grounded on the principle of FPIC; in 2007, the Prospectors and Developers Association of Canada has acknowledged that FPIC may be a necessary requirement in some circumstances. None of these organizations or industries seem to have suffered the “devastating loses…cancelled investments [or] immeasurable damage” that Premier Pallister fears. In fact, upholding the principles of FPIC as an industry and government standard across Canada, may create more stability, not diminish it.

The duty to consult and accommodate flows from the honour of the Crown and overarching goal of reconciliation between Indigenous and non-Indigenous society. All levels of Canadian courts have clearly—and repeatedly—stated that consultation is based on the fact that Indigenous Peoples owned, occupied, and utilized the lands that make up what is now Canada prior to Europeans coming to this country. Any title that Canada—or indeed Manitoba—asserts is premised on this fact of underlying Indigenous rights. The UN Declaration provides the path for further developing the “coherent framework” of consultation and accommodation that Premier Pallister is so concerned with “upending”, with the UN Declaration including the development of a robust understanding of s.35, consent and the economic rights flowing from Aboriginal rights and  title.

Law evolves with Society

Canada is not adopting the UN Declaration legislation blindly or without thought and deliberation; it is doing so grounded on decades of careful deliberation, rigorous academic study and debate both internationally and domestically, and moreover, in partnership with Indigenous Peoples. Clarity does not mean static consistency, rather it requires live and ongoing conversations to constantly evolve as our societies evolve.

Predictability does not mean frozen approaches that cannot evolve based on changing circumstances. If that were the case the law would never evolve, women would never have been recognized as having the right to vote, LGBTQ2S+ people would never be recognized as having the right to marry, slavery may still be legal, and First Nations people would not be able to leave their communities without an Indian Agent’s approval.

Our societies evolve and extend legal protections for everyone, no longer just for a select few. So too must the law evolve — a point that Premier Pallister opinion overlooks.

15 years of the Duty to Consult: Lawful Neutral

The provinces and territories have made similar arguments to Premier Pallister’s when the duty to consult was confirmed in law in the landmark Supreme Court of Canada decisions in Haida Nation, Taku River Tlingit, and Mikisew Cree.

Canada’s highest court responded that the government’s arguments and fears—similar to those espoused by Premier Pallister regarding regulatory standstills, decision paralysis, and economic uncertainty “do not withstand scrutiny” (para 31 of Haida). That was in 2004. The sky did not fall nor did the economy crumble or reconciliation erode when the duty to consult became law. Nor will it now. There are greater concerns facing our economies today, both domestically and globally.

Indigenous Rights are Human Rights

Developing and adopting the UN Declaration took over 20 years. UN Member States nearly unanimously passed the Declaration thereby agreeing that there was a need for a clearly articulated base of Indigenous Rights. The Preamble of the UN Declaration encourages States to “comply with and effectively implement all their obligations as they apply to [I]ndigenous peoples under international instruments, in particular those related to human rights, in consultation and cooperation with the peoples concerned.” Arguing that human rights should not be extended to peoples who have actively been suppressed from exercising such rights for so long by the government is deplorable. A provincial leader using the rights of Indigenous peoples as an attack against the federal government is even more reprehensible.

Premier Pallister’s tirade against the federal government’s commitment to implement the UN Declaration should not be argued in the same breath as the Crown’s duty to consult, nor its obligation to reconcile with Indigenous peoples for committing a genocide for over a century and a half. The IBA urges Premier Pallister to reconsider his concerns against the UN Declaration, and adopt an approach that upholds a position that advances the Crown’s existing duty to consult along with the obligations of all levels of government to meaningfully and effectively reconcile with Indigenous peoples.

“Let us face it, we are all here to stay”

As stated by Supreme Court Justice Lamer in the majority opinion in Delgamuukw “Let us face it we are all here to stay.” All levels of Government, federal and provincial, need to accept that Indigenous rights exist and that we are here to stay. Canada needs to say yes to upholding its evolving constitutional obligations and continuing what has long been a foundational principle of constitutional law: that our law is a living tree. It grows over time and flexibly responds and adjusts to the needs of Canada’s multicultural and multi-juridical society.

While some may see the recent Indigenous actions as cause for concern, a contextual and historically grounded approach recognizes this for what it is: a signal that Canadian law needs to adapt and grow, as it has done before and will undoubtedly do again.

The IBA applauds Canada’s efforts to adopt the UN Declaration into domestic law at this stage, and we look forward to assist with the implementation and recognition of the UN Declaration, fundamental human rights of Indigenous peoples and Indigenous laws — the very laws which have been here before any one of us, and will be here long after we have been called Home.