By James Cullingham
In 1973 the Supreme Court of Canada sent a fundamental challenge to Canadian governments in its Calder decision. The case focused on the Aboriginal rights of Frank Calder as a representative of the Nisga’a people. The case was argued by Thomas Berger.
While the court was split and the decision did not represent an outright victory, the supremes sent a clear message to Ottawa and Victoria. Aboriginal rights exist in Canada and the crown has a duty to negotiate. Pierre Trudeau is reported to have told a group of chiefs, “perhaps you had more legal rights than we thought you had.” It was an extraordinary reversal for a prime minister who had argued at the outset of his tenure that Aboriginal rights could not be recognized because “no society can be built on historical might-have-beens.”
Last week Pierre Trudeau’s son Justin also experienced a massive set back on Indigenous policy. The Federal Court of Appeal denied approval of construction of the Trans Mountain pipeline. The court declared that the federal government had failed to meet a legal standard of consultation and consent in its dealing with Indigenous groups that will be affected by the project. This is a biting rebuke to a politician who built his brand on reconciliation with Indigenous peoples and recognition of Canadian diversity in a “post national state.” Since the installation of team Trudeau in 2015, smudging ceremonies and the acknowledgement of Indigenous territories have become de rigueur at many federal events. Trudeau famously wore his father’s buckskin jacket at a National Aboriginal Day event in 2016. This week’s decision could force Trudeau to transcend the photo ops and expressions of Liberal empathy for Indigenous peoples. The court has reminded Ottawa that the doctrine of Indigenous consent has teeth in Canadian law. The government of Justin Trudeau bought Canadians a pipeline that will not be built any time soon, if ever. Kinder Morgan rejoices in the wisdom and financial acumen of selling when it did.
Justin Trudeau claims that he is no Stephen Harper. Early in its mandate, his government officially adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) a document that Harper eschewed. Harper had apologized in 2008 on the behalf of all Canadians in parliament for the human rights abuses of the residential school system but felt UNDRIP was a step too far. Conservatives argued that language in the document regarding Indigenous consent could lead to a hobbling of resource development projects in the national Canadian interest. Touché Justin Trudeau.
Since the Calder decision a number of cases have expanded the legal meaning of Aboriginal rights in Canada. In some cases, the federal and provincial governments have chosen to avoid litigation by negotiating meaningfully with Indigenous groups. The Nisga’a finally concluded a comprehensive deal with the province of British Columbia and Ottawa in 2000. In Ontario, the government of Kathleen Wynne achieved an agreement in principal with the Algonguins who never signed a treaty for their vast territory that includes Parliament Hill and Algonquin Park. While it remains to be seen what premier Doug Ford will make of the proposed deal, it and other modern treaties in Canada seldom affect third party property interests and generally offer provisions for more land, financial benefit, resource revenue sharing and harvesting rights as well as enhanced jurisdiction in areas such as education, policing, and social services.
The Federal Court of Appeal has truly put the cat among the pigeons. The NDP government in Edmonton is at odds with the British Columbia NDP that rules that province with its Green partners. Many Indigenous people and environmentalists rejoice over at least a temporary victory. Ottawa is considering its options. Prime Minister Trudeau responded to opposition calls for action by stating his government had, “a little more work to do.” Perhaps Ottawa believes it can meet the court’s requirement to consult in a more constitutionally legitimate way with Indigenous peoples while simultaneously punting the matter back to the National Energy Board to better meet the environmental concerns expressed in the judgement. Or perhaps the feds will appeal the decision on the basis of overriding national interest. Whether there is more litigation or a resumption of consultation, the process promises to be arduous, costly and lengthy. Justin Trudeau’s Liberals believed they possessed the secret sauce that could bring a sufficient number of Indigenous and environmental groups on side in a “social contract” that could placate all as Trans Mountain proceeded. As Canada enters an election year, the pressure is on the Trudeau government to prove its mettle on issues it claimed to own.
James Cullingham is a documentary filmmaker, historian and journalist. He is president of Tamarack Productions in Toronto