Jody Wilson-Raybould Minister of
Justice and Attorney General of Canada, in the Opinion she published in the Globe and
Mail of July 19 inst. asserts that “many aspects of formal relations between
the Indigenous peoples and the Crown remain based on denial” and that “reconciliation
requires recognition.”
As general propositions go, such
an assertion is certainly worthy of consideration and debate. However, some of
the examples she gives to illustrate the alleged denial, where she demands recognition
are deeply troubling, coming as they do from a person occupying her positions. I
propose to address two of them.
First example. The Minister
writes: “Indigenous peoples have to prove their aboriginal and treaty rights in
court, even though they are recognised by Section 35 of Canada’s Constitution”,
[and] “this costs all of us hundreds of millions of dollars and takes years.”
To top it all, she argues that “For government to simply say to Indigenous
peoples ‘let’s reconcile’ while demanding that rights are only relevant if
proven in court, or may be recognized at the end of the protracted negotiation,
is not a true starting point for reconciliation and impedes progress”.
The Minister’s proposition that
the mere assertion of ownership of a particular treaty or aboriginal right by an indigenous person or collectivity ought
to be recognized as an existing right without further ado simply because Section 35 recognizes and affirms existing
aboriginal and treaty rights
demonstrates a profound ignorance of the most elementary principles of
law.
It also demonstrates, first, a
profound ignorance of the legal duty of the Provincial or the Federal Attorney- General, as the case may
be, and in some instances both, to study the alleged right and decide whether
or not it ought to be contested in part or in whole, and second, a profound
contempt of the rights of not only
non-indigenous persons and communities but also of other indigenous persons and communities adversely affected by the
alleged right to contest its existence and contents in part or in whole.
The second example is the Minister’s
assertion that, “most federal laws and policies, especially around land and
resource decision- making, do not properly consider indigenous rights.”
This allegation in turn shows the
Minister’s profound ignorance of the decisions of the Supreme Court of Canada
that have rendered the management and exploitation of resources on lands with
respect to which Indigenous groups enjoy aboriginal or treaty rights so
complicated as to turn the task, in an ever increasing number of cases, akin to
trying to squeeze an elephant through the eye of a needle. If the Court was
making these decisions when the Canadian Pacific Railway system was being
built, the chances are that it might not have been built or built at a cost
overrun in the millions of 1880 dollars; not to mention the never ending saga
of attempts to build national or regional pipelines.
The Minister’s assertion that
most federal laws and policies fail to consider Indigenous rights suffers from
over-generalisation. It ignores the fact that in the ordinary course of
business, where the rights or the interests of Indigenous people are involved ,
as a matter of standard procedure, the interpretation and application of these
laws and policies is subjected to scrutiny in the light of the court decisions concerning
the rights of the Indigenous peoples. Where doubt exists, the usual course of
action is to seek a legal opinion from the Minister’s department and where
possible, to consult with the people who might be potentially affected prior to
reaching the ultimate decision.
The Minister’s explanation for
her alleged state of affairs is that “Underlying all of this is paternalistic
colonial legislation such as the Indian Act that continues to govern the
day-to-day lives of many Indigenous people and communities.”
If nothing else, this facile, simplistic,
stereotypical explanation of the kind advanced by some of advocates of
Aboriginal peoples and rights, demonstrates the Minister’s lack of familiarity
with the history of the Indian Act, and in particular the vehement opposition
of the First Nations to the scheme under which the Trudeau Sr. government
offered to repeal it.
Based on the foregoing
considerations, clearly the Minister is in conflict of interest. She must choose
and choose promptly, whether she wants to be an advocate for the Indigenous
peoples’, come what may be to the proper performance of her official duties or
to perform her official duties in a manner becoming a Minister of Justice and
Attorney General of Canada.
Doğan D. Akman
310 Clemow Avenue,
Ottawa, ON K1S 2B8
Tel.613.230.3881 e-mail:
Dogan.Akman@rogers.com
____________________________________________________________
Between 1985 and
2005 when I retired, I was employed as counsel in the Civil Litigation Branch
of the Department of Justice in Ottawa, where I specialised in the litigation
of major aboriginal law cases. In 1987,I was promoted to Senior Counsel and became
the Departmental Co-Ordinator of Native Litigation until 2000.
DDA
No comments:
Post a Comment