We can’t let outside powers dictate law in Canada

The United Nations Declaration on the Rights of Indigenous Peoples should be treated as nothing more than an aspirational document

Brian GiesbrechtThe final report of the Truth and Reconciliation Commission called for the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) to become law in Canada. This is a very bad idea for many reasons.

Enacting a law that would make all legislation subject to UNDRIP could render Canada virtually ungovernable. Justice Minister Jody Wilson-Raybould said that “adopting the UNDRIP as Canadian law is unworkable.” Wilson-Raybould is Indigenous and a member of the most Indigenous-obsessed government in the history of Canada.

The 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, Canada’s 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 subject to the will of one small part of the population.

The Liberals, when still in Opposition, pledged to enact all 94 of the TRC’s calls to action on the very day the TRC report was released. The UNDRIP call was included in that promise. Even after taking office, Crown-Indigenous Relations Minister Carolyn Bennett naively repeated the intention to make good on this promise, “without reservation.”

Then reality set in.

The “duty to consult” required by the Supreme Court has given Indigenous groups a virtual veto over resource development projects.

Although only 3.2 per cent of Canada’s population are status Indians, and although less than half of that group live on reserves, the recent pipeline controversy demonstrates clearly that those who on reserves have a virtual stranglehold over resource development.

If another duty-to-consult requirement was introduced through the adoption of UNDRIP as Canadian law, resource development, along with anything else that might affect Indigenous communities, could be severely hampered.

There are approximately 625 reserves, or First Nations, in Canada. If UNDRIP gives each of these 625 communities a veto over any new law, the governing structure of the country, as well as the court system, could be tied in knots.

Canadian Indigenous law is made by the courts and not Parliament. This introduces uncertainty, since there’s no legislative control of the unelected judges. The Federal Court ruling related to pipelines and the government’s responsibility “to consult in a meaningful fashion” suggests major stumbling blocks for any development project near an Indigenous community.

As we cede more and more power to the courts, we should bear in mind that there’s nothing magic about the judiciary – they’re just people doing their best to make decisions. They’re not elected. And how much their decisions will cost taxpayers is not their major concern, nor are the courts equipped to properly assess cost issues.

All of this leads to the other vexing problem UNDRIP could bring to Canadian law: the possibility that decisions of the Canadian government could be appealed to the United Nations, where countries with no understanding of human rights or the Canadian reality could make decisions that affect many aspects of life in this country.

We also know that determined Indigenous leaders with an agenda, and their well-paid lawyers, have consistently forced changes that are very hard on taxpayers and very difficult for business to accommodate.

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.

Previous Justice and Indian Affairs ministers have gone even further than Wilson-Raybould in voicing opposition to UNDRIP, stating that it would not only interfere in the governance of the country, but conflict with the Charter of Rights and Freedoms and further divide the country.

UNDRIP regards Indigenous people as a collective rather than as individual citizens. 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 Indigenous out for special treatment. 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.

The Indigenous policy that Canada has followed for the past couple of generations – giving ever more money and power to chiefs – has been an absolute and utter failure. It’s time to abandon that disastrous policy and treat Indigenous people as individuals, as all other Canadians are treated.

Mal Brough, Australia’s 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.”

But it seems Canada’s government has thrown all caution to the wind and intends to force UNDRIP through Parliament. 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 sentiment behind UNDRIP is good. In many countries Indigenous peoples are treated very poorly by their governments. That’s not the case in Canada.

The acceptance of UNDRIP as an aspirational document is politically necessary. But making UNDRIP Canadian law could irreversibly weaken this country.

Brian Giesbrecht is a retired judge and senior fellow with Frontier Centre for Public Policy.


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