Friday, June 1, 2018

Nathan Cullen and Ellis Ross offer differing views on UNDRIP and its application in Canada

MP Nathan Cullen  called attention to what he described as Parliament's historic vote of Wednesday, when a large number of MP's voted in favour of  Bill C-262 to make the UN Declaration of Rights for Indigenous people law in Canada.

The Parliamentary move on the Private Members bill first introduced by MP Romeo Saganash in 2016, seeks to ensure that the enactment requires the Government of Canada to take all measures necessary to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples.

The full text of Bill C 262 can be reviewed here.

Mr. Cullen used that Parliamentary approval to urge the government not to move forward on its Kinder Morgan pipeline construction plans until court cases related to First Nations rights and title  were settled.

 The vote in Parliament found 206 MPS in approval, 79 in opposition to it,  the Bill has now moved over to the Senate where it had its first reading on Thursday.

Mr. Cullen celebrated it's forward momentum with a Facebook post on Thursday.

While the Federal MP for the region is in full support for the UNDRIP declaration, Skeena's MLA Ellis Ross has taken a differing view of the impact of the document for much of the recent Spring session at the BC Legislature.

With Mr. Ross raising the topic a number of times and providing for a range of observations on the impact that it may have in the province.

Mr. Ross once again raised his concerns on Wednesday, reviewing some of the areas where he feels the document may have unintended consequences in how it is used.

My issue, from UNDRIP, has always been the uncertainty it'll cause. I always viewed UNDRIP principles as, basically, political statements, political principles that were 36 years too late in terms of being implemented in Canada. I'm referring to 1982, section 35. I really felt that we had come a long, long way since 1982, and I thought that all the case law provided a tremendous amount of certainty on all sides.

My question is pretty specific in terms of the Crown's decision-making, and I'm not talking about programs. I'm not talking about the Aboriginal Justice Council. I'm talking specifically on the infringement of rights and title when it comes to infringement of said rights and title. I truly suspect that First Nations believe that if they can't get the answer they need under existing case law, then they'll turn to UNDRIP, and they'll use the idea of consent under UNDRIP versus existing case law. 

My concern is that First Nations, given the generality of UNDRIP and explanations of UNDRIP, will believe that consent is actually a veto. They'll exercise all the case law principles, and they will not like the outcome of a government decision so they will move to the provision of consent under UNDRIP.

 I've heard a number of times a number of different government officials as well as politicians say that consent does not equal a veto. Well, these First Nations leaders don't believe that. In terms of tenures for fish farms, in terms of authorizations for a project like Kinder Morgan or LNG, it's becoming more apparent that First Nations are placing all their efforts into UNDRIP and the consent clause.

Mr. Ross's commentary came as part of a back and forth exchange with British Columbia Attorney General David Eby, who countered some of the Skeena MLA's observations related to UNDRIP and it's application in the province.

The importance of consent does extend beyond simple title lands. What we're looking for are chances to build opportunities, to build processes and approaches to secure consent and innovative mechanisms to really build in collaboration and consensus and new ways of working together that are less court-based, if we can. 

It sounds like the member on the other side is on the same page on that. I'm glad to hear it, because the court cases appear to be driving divisions rather than bringing people together. A lot of resources go into court that could be better spent, on both sides, in rebuilding and doing the work of reconciliation.  

To the member's specific question of whether you go to all 220,000-plus people to try to get individual consent from everybody on a particular project, that's not what the UNDRIP document suggests, nor is the section 35 jurisprudence.

You can review the full discussion between the two members of the Legislature from the Hansard archive of Wednesday starting at the 15:45 mark.

You can also view the exchange from the Chamber Video archive of the Wednesday afternoon sitting, at the same time mark.

More background on the UNDRIP discussion in the Legislature and Mr. Ross's other contributions during this session in Victoria can be found from our archive page here.

A look at some of the work of Mr. Cullen in Ottawa can be reviewed from our House of Commons Archive page.

Note of correction: this story has been modified for its original posting, to correct an error with Mr. Eby's name.

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