The B.C. government has tabled a bill enshrining in law the rights of Indigenous Peoples. By doing so, the province is implementing a UN resolution to the same effect. Neither the federal government or any other province has taken this step, though it appears likely the federal government will.
The stated purpose of the bill, as Premier John Horgan put it, is to ensure that “the standard of living for Indigenous Peoples is the same as every other human being in the province.”
No-one could disagree with that. But the reach of the bill extends much further.
The interpretation section requires the government to “take all measures necessary to ensure the laws of B.C. are consistent with the declaration.”
That means any legislation or policy must be made compliant with the “distinct languages, cultures, customs, practices, rights, legal traditions, institutions, government structures, relationships to territories and knowledge systems of the Indigenous Peoples in British Columbia.”
Defined thus broadly, it is difficult to imagine any area of government activity that would not fall under this requirement.
How is all of this to be done? Here the bill is less clear. But it appears cabinet may have to gain the consent of First Nations regarding any legislation or policy that touches on their interests.
If that is indeed the case, we are no longer one province, but two, for the unifying authority of government has been fragmented. When ministers are obliged to seek the consent of Indigenous leaders in pursuit of their duties, consent that may not be forthcoming, or which comes at an unacceptable cost, a state within a state has been established.
Now much of this is speculation, for the bill is written in vague and undefined terms. We cannot be certain what the full consequences will be.
What we can be sure of is that the interpretation of this legislation will inevitably fall to the courts. We will have lawsuits for decades to come, in many cases involving newly claimed rights that no-one foresaw.
This occurred when the Charter was proclaimed. It was said at the time that Parliament was merely enshrining rights we all took for granted, indeed which had been recognized since our country’s founding.
The same argument is being made here. Legal experts have come forward to assure us the power-sharing bill simply entrenches principles that are already well established.
But if this is so, why is the bill needed? If it adds nothing to conventions or agreements already in place, what is its purpose?
In fact, after the Charter was adopted, life did not go on as before. Increasingly, the courts were drawn into disputes that previously had been settled by Parliament and the legislatures. It appears inevitable the same will happen here.
Now, it may be said that the importance of this legislation is the symbolism it embodies. That, we can all agree, has value. However, the bill goes far beyond a gesture of reconciliation or good will.
Something very much like a First Nations veto is implied. The term “veto” itself does not appear in the act. Yet it appears the commitments made can only be honoured by granting the effective equivalent.
It is well-nigh impossible to see how this new power sharing arrangement can work. Unquestionably it will make the job of governing hellishly complex.
Horgan and his colleagues are to be complimented on a sincere effort to right past wrongs and improve the standard of living for Indigenous Peoples.
But hopes and expectations have been raised within the First Nations community that will inevitably prove impossible to satisfy.
And that is the principal concern. After a brief honeymoon, disenchantment will set in as First Nations leaders find that more has been promised than can realistically be delivered.
For this bill, as unnecessary in law as it will prove mischievous in practice, is incompatible with our system of parliamentary government.
