The bill, sponsored by aboriginal affairs critic Romeo Saganash and endorsed by leader Thomas Mulcair, drew opposing views from two B.C. aboriginal rights experts.
"What this shows is a profound ignorance of Canadian law. I think it's irresponsible," said Tom Isaac, a private lawyer who represents governments and industry in aboriginal rights cases across Canada. "It would be a fundamental and wholesale change in how this country is governed," he said.
"Could you imagine a government having to get the consent of six or seven hundred First Nations on any action that might affect them?" At issue is the 2007 United Nations Declaration on the Rights of Indigenous Peoples, which was conditionally endorsed by the Harper government in 2010.
The declaration says governments can't implement legislative measures or economic projects without the "free, prior and informed consent" of affected First Nations.
Isaac said if Mulcair and B.C. NDP leader Adrian Dix are trying to reach out to middle-of-the-road voters, they should avoid statements that suggest they would strictly adhere to the UN declaration.
But Isaac's view that such legislation would give First Nations an effective veto over projects like Enbridge's Northern Gateway pipeline megaproject to the B.C. coast was rejected by University of B.C. law professor Gordon Christie.
He said individual rights are always weighed against societal interests, and the Supreme Court of Canada has already made clear in past decisions that aboriginal rights must be reconciled with broader interests.
"It's not as though it would put a brake on everything, it's not as though the entire economy would come to a screeching halt and there would be no mines and no pipelines," Christie said in an interview.
"It would just be that the government would have to actually sit down and negotiate these things with indigenous communities regarding what happens on their territories."
Saganash took the same line, citing one section of the UN declaration that stresses the importance of considering the rights of all citizens.
"That's just fearmongering," he said of the criticism.
Scott Fraser, aboriginal affairs critic for the B.C. NDP, said his party supports the UN declaration as a "lens" through which to view relations with First Nations.
He said the passage of a bill like Saganash's would "probably" not have an influence on how judges view First Nations rights cases being fought out in court. "But it would clarify what government needs to be mindful of and the directions they need to go if they're ever going to have a hope of fair reconciliation."
When the federal government supported the UN declaration three years after it was adopted, it described it as "aspirational" in nature and not legally binding.
The government also noted that it made clear in 2007 its concerns about the potential that sections relating to "free, prior and informed consent" could be seen as a veto.
But the Harper government said it was convinced by aboriginal leaders that it could be adopted without jeopardizing Canada's constitutional or legal framework.
Original Article
Source: canada.com
Author: Peter O'Neil
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