Vaughn Palmer: Will courts allow the good intentions of UNDRIP to work once drafted?

Credit to Author: Gord Kurenoff| Date: Fri, 29 Nov 2019 03:00:29 +0000

VICTORIA — As the legislature entered the final week of the fall session, the New Democrats had to assure First Nations the UNDRIP legislation was not in danger.

They maintained that Bill 41, the first step toward incorporating into provincial law and policy the principles of the United Nations Declaration on the Rights of Indigenous Peoples, was still on track for passage.

Never mind how members were spending an unusual mount of time scrutinizing every clause. “It’s just our way of doing things,” as Premier John Horgan put it this week.

First Nations are not the only ones with an oral culture — you should see our politicians in action in the legislature.

The premier’s assurances were proven correct late Tuesday when the bill cleared the final legislative hurdle by a vote of 82-0 — unanimous support of all members present from all three parties.

Next steps will see the government begin working with First Nations leaders on an plan for implementing the legislative commitments regarding the UN declaration.

Those include incorporating the 46 UNDRIP principles into provincial law and public policy.

But the government cannot be sure how the legislation, first of its kind in Canada and pretty much anywhere else, will be interpreted in the courts.

During debate on the legislation, Indigenous Relations and Reconciliation Minister Scott Fraser maintained that the passage of the bill would have “no immediate effect” on B.C. laws.

But the text itself says that nothing in its provisions “is to be construed as delaying the application of the UN declaration to the laws of B.C.”

How to reconcile those two statements?

“You can’t tell the courts what to do specifically,” said Fraser. “But our commitment and intention is to bring our laws into alignment with the UN declaration over time.”

Was it therefore the government’s view that until it has completed the process of aligning its laws with the declaration, “none of the provisions in Bill 41 could be used to strike down existing legislation?”

The question was put to Fraser by Liberal MLA Mike de Jong. “What you’ve described, captures our intention,” the minister replied.

Another exchange between the two raised the possibility that the New Democrats might have legal advice to the contrary.

De Jong is a former attorney general as well as a former minister of Aboriginal relations. He used his inside knowledge of the legislative process to ask Fraser some pointed questions about the drafting of Bill 41.

De Jong: “I am assuming that legislative counsel, that branch of the attorney general’s ministry charged with the task of drafting legislation, was engaged in this exercise?” Fraser: “Yes.”

With that information in hand, de Jong then asked whether the government lawyers had either “red-tagged” or “yellow-tagged” the bill?

Yellow-tagging is when the lawyers identify potential problems with the text. Red-tagging is used to flag more serious implications, such as the prospect of the bill being overturned by the courts or subjected to far-reaching interpretations.

But Fraser refused to confirm or deny either yellow- or red-tagging: “I cannot tell you that based on solicitor-client privilege.”

There was a similar response earlier this year when the Senate of Canada was examining Bill C-262, proposed legislation to implement the UN declaration at the federal level.

The senators also sought copies of any legal advice that had influenced the concern, expressed by Jody Wilson-Raybould in her time as justice minister, that adopting the UN declaration as Canadian law was “simplistic, unworkable and a political distraction.”

But federal officials turned down the senate request on the basis of solicitor-client privilege. Such opinions, presuming they exist, could be relevant to interpretations of Bill 41 as well.

“We made use of Bill C-262,” Fraser told the legislation during debate on Bill 41. “I wouldn’t say we were plagiarizing, but C-262 forms, pretty much the cornerstone of this legislation.”

Not likely will either level of government change its mind about waiving solicitor-client privilege on either piece of legislation.

But as Fraser conceded during debate, “the courts will do what they will do.”

Meanwhile, Premier John Horgan says the government will begin the process of implementing the legislation in the new year.

“The work plan starts January 1,” he told reporters during his end of the legislature session media conference Thursday. “I will be revising my mandate letter to the minister, and we will be starting on this right away.”

He said the process of reconciling provincial legislation with the UN declaration should get underway when the legislature sits starting Feb. 11.

“I would hope that by the middle of the spring session we will be taking steps to make those changes that we can do seamlessly,” said the premier. “It was designed to be done in a methodical way. Cabinet will determine the priorities, and we will set our sights on achieving that.”

As for the plan on broader policy issues, it will be drafted in consultation with the First Nations Leadership Council starting early in the new year.

Fraser had said the goal is to have a first draft of the plan ready in a “matter of months, not years.” Did Horgan agree? “Absolutely.”

We’ll see.

The legislation doesn’t lack for ambition, to be sure. But it remains to be seen how far the New Democrats get in fulfilling its good intentions and how much leeway they are given by the courts.

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