The very tortuous history of relations between Canada as an autonomous jurisdiction and its indigenous people divides along ragged lines between nobility, tragedy, and farce.
Canada has been responsible for its indigenous policy since 1848 in the case of Ontario and Quebec, and since 1867 in respect of the whole country except Newfoundland and Labrador which joined Confederation in 1949. We temporarily descended to a new level of absurdity on this subject with British Colombia’s proposed changes to its Land Act, which governs the provincial granting of leases, licenses, permits, rights-of-way, and land sales. It was revealed that the changes would cause a shift to joint decision-making power between the provincial government and B.C.’s more than 200 First Nations, “through joint or consent models.”
It is clear from this wording that what was envisioned was a right of veto over any of these matters being granted to the First Nations potentially affected by them, according to the wide variety of methods of governance among these tribes and clans. A spectre of almost unlimited chaos and self-enforced stagnation penetrable only by inestimable quantities of Danegeld emerged.
Eventually, in what must be considered a triumph of democracy and common sense, the proposed measure was withdrawn. This may prove a turning point in the endless prostrations of our governments in front of indigenous agitation, and the discussion the proposed changes provoked are informative.
The confusion was materially increased by the implausible assertions of Minister of Water, Land, and Resource Stewardship Nathan Cullen that no right of veto would be given by the province to the First Nations in any of these matters. The best efforts of the province’s opposition parties and the media to extract from the NDP government how it proposed to share decision-making by “joint or consent models” without granting a veto were unavailing.
B.C. started on this path in 2019 when the legislature passed Bill 41, the Declaration of the Rights of Indigenous Peoples Act (DRIPA). This propelled the province down the slippery slope of effectively acknowledging the jurisdiction of the United Nations, as it required the B.C. government to take “all measures necessary” to make its laws were consistent with the United Nations Declaration on the Rights of Indigenous People (UNDRIP). This was a vintage declaration of the U.N. General Assembly of 2007 that purports to require that indigenous people have ”the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired … to own, use, develop, and, control.” Naturally, a General Assembly declaration does not bind the U.N. member states and cannot be enforced by anyone.
Given the perversity and institutionalized racist and ideological bigotry that has long infested and corrupted the United Nations, it is a matter of constant relief and thanksgiving that the opinions of the majority of the 193 members of the General Assembly that do not qualify as democracies and are broadly hostile to the Western nations are separated by a firewall of national sovereignty from any serious application of their insane resolutions in member states. But B.C.’s NDP government has cheerfully dispensed with that safety net. The UNDRIP criteria could be construed by militant nativists as handing the whole city of Vancouver to the First Nations. Section 35 of Canada’s Constitution requires consultation with First Nations in a number of appropriate areas, but that is a comprehensively inadequate concession under UNDRIP criteria.
Section 7 of DRIPA requires that joint decision-making or joint consent arrangements are to be made between the B.C. government and any affected indigenous group in respect of the administration of approximately 90 percent of the territory of the province. It is clear that either Mr. Cullen and the B.C. government had to create such a mechanism that constituted an indigenous right of veto, or necessity of consent which amounted to a veto, or the government would derogate from its own self-immersion under DRIPA.
“Courts on judicial review generally defer to statutory decision-makers. And they don’t change decisions but merely send them back to be made again. The argument that First Nations won’t have a veto because their decisions can be challenged on judicial review is legal jibber jabber,” Mr. Pardy wrote. “When the U.N. passed UNDRIP in 2007, people said they can’t be serious. When the B.C. legislature passed DRIPA in 2019, people said they can’t be serious. The B.C. government now proposes to give First Nations a veto over the use of Crown land. Don’t worry, they can’t be serious.
Of course, Mr. Pardy was correct: They are not in the least serious in the sense of being responsible legislators enacting the wishes of a provincial government that deserves to be taken seriously on the merits of its policy. But in terms of their own misplaced dedication to govern by submission to the most facile, shallow, and hackneyed whims of popular opinion, they are very serious as a threat to the well-being and good governance of a magnificent province. If it had not been for the initiative of the Fraser Institute, which published several well-researched articles on the issue, the NDP regime would likely have thrust itself into the impossible position that has been described, in its eagerness to submit to anything that might be fleetingly opportune, however fatuous.
This is only the latest episode in the feckless and invertebrate failure of our governments to produce and enact a serious plan to address legitimate grievances of the indigenous people. Endless energy and funds have been expended to revile our ancestors and to shame ourselves before the world as quasi-genocidists. It has been a degrading sequence of national self-flagellations: We are still awaiting one scintilla of evidence that a single native child was buried in the so-called unmarked graves, which have not even been identified as graves despite the allocation of many millions of dollars to get to the bottom of this issue.
This cascade of unfeasible posturing is just postponing the day when all the commissions’ reports and all the accumulated laws and regulations will be streamlined and reconfigured into a generally agreed upon plan to facilitate the reasonable ambitions of the indigenous community without any further unjust denigration of Canada as a country, or any concession to the insidious notion that the overseas explorers and settlers who came here in the last four centuries were invaders and that their descendants, we the great majority of Canadians, are illegitimate occupants and residents of this country.
