Is the Sky Falling? Probably not

Wednesday April 4, 2018

What Bill C-262 will and will not do for Canadian law

By Peter W. Hutchins


Harry Swain, a former Deputy Minister of Indian Affairs and Northern Development, and Jim Baillie, a retired partner of Tory LLP, in the 26 January 2018 edition of Financial Post have contributed their own jeremiad predicting constitutional catastrophe in the light of Canada’s apparent decision to support the private members Bill C-262 of MP Romeo Saganash. That Bill, which passed second reading in the House of Commons in February, would require the adoption of measures to make Canadian law consistent with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Making all laws consistent with UNDRIP, the authors contend, would give Aboriginal peoples rights not enjoyed by other Canadians. That is precisely the point.


Where have Messrs. Swain and Baily been since the adoption of the Constitution Act, 1982 with its section 35 that provides specific constitutional protection and priority for the Aboriginal rights and treaty rights of the Aboriginal peoples of Canada?


I am sure that with some effort they would be able to recall?—?perhaps longingly?—?the days before1982 where, for example, the father of the present Prime Minister, Pierre Elliot Trudeau, pronounced in a 1969 speech that there could be no Aboriginal rights in Canada and that Canadians do not conclude treaties among each other! The government White Paper released in 1969 set out to create a Canada rejecting the special historical, legal, and cultural position of Aboriginal peoples.


The firestorm that followed from the First Nations across the country ended in Mr. Trudeau retreating from the White Paper and its narrow vision. Thirteen years later, he signed the constitutional proclamation of 1982 in the presence of Queen Elisabeth and presided over several First Ministers Conferences seeking to elaborate the special status of Aboriginal peoples of Canada recognized and affirmed in section 35 of the new Constitution.


It is interesting that the authors decide to zero in on two of the 46 articles of UNDRIP. It will come as no surprise to the Aboriginal peoples of this country or to those who have fought to promote and protect special status that the two culprit articles concern land rights and consent. Article 26 addresses Indigenous peoples’ rights to the lands, territories and resources to which they have had title, occupied or otherwise used or required. Article 19, requires states to obtain the free, prior and informed consent of Indigenous peoples before adopting and implementing legislative or measures that may affect (albeit in the context of the obligations to consult and cooperate in good faith) Indigenous peoples concerned through their own representative institutions.


Since Jacques Cartier sailed up the St-Lawrence and James Cook sighted the coast of what is now British-Columbia, the colonial project has been all about first denying Indigenous peoples place in their own lands and subsequently engaging in massive encroachment upon those lands. Surprisingly, we are not directed by Messrs. Swain and Baily to Article 10 of UNDRIP which provides that Indigenous peoples shall not be forcibly removed from their lands or territories without their free, prior and informed consent, something that John A. Macdonald might have considered prior to displacing through starvation the First Nations of the plains in order to clear the way for his railroad. The authors state:

Free, prior and informed consent is not a right of anyone in our Parliamentary democracy; our representatives thrash out the necessary compromises.


Do we think that it is what happened in Parliament in 1867? Where were the representatives of the plains Nations in the process?


Perhaps our Government, suggests the authors, regards UNDRIP as general guidance rather than strict law, referring to the statements of Justice Minister Jody Wilson-Raybould when she told “a silent and sullen Assembly of First Nations last year that immediate adoption was “unworkable” and that this would be the work of generations […]”. But why then, ask the authors, did the government “cave in to the stentorian and unequivocal words of the author of C-262, MP Romeo Saganash which require that the government “must take all measures necessary to ensure” consistency of Canadian law with UNDRIP. It is suggested by the authors that as a legislative technique this is unique in our experience. I am surprised that an ex-deputy Minister of Indian Affairs and Northern Development would not be aware of the “legislative technique” employed by Parliament in bringing modern land claims into force’.


Let’s be clear, the United Nations Declaration on the Rights of Indigenous Peoples enters the growing canon of international human rights instruments in which Canada has proudly participated. It essentially proclaims that Indigenous Peoples are entitled to the same rights as non-Indigenous peoples. Bill C-262 inherits and continues a long tradition in the role of international law, and particularly international human rights law, in the jurisprudence of the Supreme Court of Canada. This is confirmed in the excellent paper by former Supreme Court Justice Louis Lebel and Gloria Chao published in the 2002 Supreme Court Law Review with the title: “The Rise of International Law in Canadian Constitutional Litigation: Fugue or Fusion?: Recent Developments and Challenges in Internalizing International Law”. The authors remind us:

With the enactment of the Constitution Act, 1982, the number of cases marking use of international public law instruments increased dramatically. Writing on this development in the jurisprudence of the Court, Mr. Justice Gérard La Forest reported that, between 1984–1996, the Court made use of key international human rights instruments in fifty cases in interpreting the Canadian Charter of Rights and Freedoms. Since then, that number has doubled. Forest J. thus explained the necessity of taking into account the applicable international law in Charter cases:
“The protection of human rights is not a uniquely Canadian concept and just as the drafters of the Charter drew on the experience and successes of the international human rights movement, so too would it be necessary for the Canadian courts to look abroad.”
The authors, Maxwell Cohen, Q.C., and Ann Bayefsky observe that:
“The very fact … that the “supreme law of Canada” represented by the Charter, is indissolubly linked by language and ideology to important international instruments and principles to which Canada subscribes, assures the inevitability of some resort to these “external” international legal documents and ideas in order to be certain that on appropriate occasions the “proper” meaning is given to that Charter.’’


Not only does international law illuminate the positive law on human rights in Canada, it also helps us to understand the appropriate limits on state power.


If further confirmation is needed, Lebel and Chao refer to the 1998 Reference Re: Secession of Quebec to refute the contention that the court, as a domestic court, must examine domestic law rather than international law’ The Court confirmed its practice at paragraph 22:

In a number of previous cases, it has been necessary for this Court to look to international law to determine the rights or obligations of some actor within the Canadian legal system’ For example, in Reference re Powers to Levy Rates on Foreign Legations and High Commissioners’ Residences, [1943] S.C.R. 208, the Court was required to determine whether, taking into account the principles of international law with respect to diplomatic immunity, a municipal council had the power to levy rates on certain properties owned by foreign governments’ In two subsequent references, this Court used international law to determine whether the federal government or a province possessed proprietary rights in certain portions of the territorial sea and continental shelf (Reference re Ownership of Offshore Mineral Rights of British Columbia, [1967] S.C.R. 792; Reference re Newfoundland Continental Shelf, [1984] 1 S.C.R. 86).


Rather than wring our hands over the conclusion by Mr. Swain and Mr. Baillie that the approach to Bill C-262 would “throw an enormous spanner” into the jurisprudence of the Supreme Court of Canada making impossible the balancing process laid out by the Supreme Court, we should be grateful to Romeo Saganash for his efforts to provide an opportunity to the Parliament of Canada to join with the Supreme Court in letting international human rights law illuminate the Canadian constitutional scene.


The sky will not fall. Our courts will see to that.



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