Could First Nations block an Independent Alberta？ Law professor explains
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Summary
Bill C-5 is a bill that would allow the federal government to fast track infrastructure approvals and allow them to override some of the most overzealous environmental rules brought in by the Trudeau government. Some First Nations are very concerned about this and have called for an emergency meeting to discuss it.
Transcript
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Hi, I'm Candace Malcolm, and this is The Candace Malcolm Show. We have a great episode for you
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today. Bruce Pardy is going to be joining the show in a little bit. Now, I want to point your
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attention to this news piece. You may have seen it circulating on social media. The Assembly of
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First Nations is to meet on Bill C-5. They called an emergency meeting to discuss Bill C-5. So
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remember, Bill C-5 is the bill introduced by Mark Carney and his government last Friday called the
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Free Trade and Labor Mobility Act and the Build Canada Act. I've been quite complimentary of
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this bill, folks. I think it is exactly what Canadians need. We need to get energy and pipelines
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built to market. And this bill basically allows the government to override some of the most
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overzealous environmental rules brought in by the Trudeau government. And that is, again, what we
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need. But apparently some in the First Nations are very worried and very upset about this. Let me read
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a little bit from the Globe and Mail here. The Assembly of First Nations has called an emergency
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meeting for all 634 chiefs on June 16th to address growing concerns over Bill C-5, which would allow
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the feds to fast track infrastructural approvals. Indigenous leaders warned the bill could override
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the right to free prior and informed consent, effectively undermining the Indigenous veto power
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over resource development. Folks, ask yourself this question. Why do some Indigenous groups get a
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veto power over natural resources? Why on earth do we have this law on the books? What is free
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prior and informed consent? It is such a confused legal concept. And the fact that this is on the
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books in Canada is one of the greatest shames of the Trudeau government. I will continue here from
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the Globe and Mail. It says the AFN will use the meeting to coordinate a legal and political response
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arguing that Bill C-5 threatens treaty rights and violates Canada's commitments to Indigenous peoples.
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So just to continue this, at a presser in Ottawa, the Assembly of First Nations BC Regional Chief
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Terry Tagui said that while no government has a veto over natural resource projects, Canada needs to
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properly consult on national energy legislation. Let's play that clip. No government has a veto,
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meaning that when we come to a decision, all governments come into a room to make a decision
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together. And I think, you know, First Nations certainly as a part of this need to be part of
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the decision-making process. So what he said there, that no government has a veto, remember that Attorney
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General Sean Fraser said that last week. He said that Indigenous groups and no government gets a veto
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power. And apparently the backlash to that comment was so strong and so intense that he came out the
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next day, apologized for even taking the question, and he claimed that his answer hurt people and set back
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the conversation with First Nations. But all of this raises a question, at least to me, is why is it that
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some groups, why is it the First Nations groups, get these special privileges and get more rights than the
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rest of Canadians? Like, I was told that Canada is a free democratic country and that we all have the same
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laws and privileges, and yet, clearly, the rules are unequal. And this leads me to another story. Similarly, that
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some First Nations really oppose what Premier Daniel Smith is doing out in Alberta. They
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really oppose the Citizens Initiative Act. Remember that the day after the federal election, Daniel
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Smith came out and announced changes to the Citizens Initiative Act that will lower the threshold to
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trigger a referendum on sovereignty, if that is what the people want. So look at this press conference.
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This is unbelievable. On May 6th, at this press conference, the Blackfoot and Cree chiefs slammed the
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Citizens Initiative Act, which is also known as Bill 54 in Alberta. They called it garbage. They threw it on the
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ground, very theatric press conference here, and they basically gave a warning, a fierce warning,
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to the Premier. Let's play that clip. Bill 54, this is what we think of you. You're garbage like that.
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This is treaty land, and we stand on it today. This is treaty country, and any talk of separation
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is really insanity. And if you feel that you have problems with First Nations,
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you could leave. So I don't really think that anyone has problems with First Nations. Our problem
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is that there are some laws that treat Canadians differently, and we're going to get to the bottom
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of that. So in response to this press conference and other pushback, Premier Daniel Smith wrote a
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letter to First Nations. This came on May 13th. She said, among other things, I wish to reiterate what I
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shared in my address to Albertans on May 5th. As Premier, I am entirely committed to protecting,
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upholding, and honoring the constitutional rights of First Nations, Métis, and Inuit people.
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This includes ensuring that any Citizens Initiative referendum, if passed, must uphold and honor
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treaties 6, 7, and 8. Here is a clip of the Premier saying that.
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I also want to state unequivocally that as Premier, I'm entirely committed to protecting,
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upholding, and honoring the inherent rights of First Nations, Métis, and Inuit peoples.
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Therefore, any citizen-initiated referendum question must not violate the constitutional
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rights of First Nations, Métis, and Inuit peoples, and must uphold and honor treaties 6, 7, and 8,
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should any referendum question ever pass. This is non-negotiable.
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So basically, the deals that were drafted with the Canadian people, with the Crown, with Ottawa,
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would carry over into an independent Alberta. And you might say, oh, well, that seems only fair.
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But the reality is that things aren't exactly going very well for First Nations relative to the rest
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of the Canadian public. Data shows that. And so the idea that we would just take the broken system
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and apply it to the new Alberta government, if that were to ever happen, just sort of seems to
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undermine the whole project in my mind. Now, that apparently wasn't good enough for some in the First
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Nations community because the Onion Lake Cree Nation, we learned, is going to proceed with a
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legal challenge against Alberta sovereignty and against Premier Danielle Smith. So this is CTV
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reporting on May 15. Alberta's recent passage of Bill 54, which lowers the threshold to trigger
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referendum, has prompted Onion Lake Cree Nation to revive its legal challenge against the Alberta
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Sovereignty Act. The nation argues the act and the bill infringe on Treaty 6 rights and pave the way
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for separatist agenda. Chief Henry Lewis says the province failed to consult Indigenous communities,
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violating the honor of the crown. Okay, I want to bring in Bruce Party to have a conversation on
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this to help us understand a little bit more. Bruce is a legal scholar and professor of law at Queen's
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University. And Bruce has an excellent article that's very related to this over on his subsec page
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saying that there should be no special aboriginal rights in a free Alberta. So, Bruce, first of all,
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welcome to the show. Thank you for joining us. Thank you, Candice. Thanks for having me.
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Okay, so let's start with your article. Really thought-provoking, as usual. I really appreciated it.
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And I want you to sort of walk us through what you write and sort of where this came from.
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Right. So, as you pointed out and as the clip demonstrated, Daniel Smith has indicated that
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in independent Alberta, if it came to that, that aboriginal rights, treaty rights, and so on would
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be honored. And a lot of people in the separation movement have said the same thing. I think that is
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a mistake. The kinds of stories that you referred to and showed clips from is exactly the kind of
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result that you get when we have a legal system that provides different rights to different people.
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We've lost the idea in this country of blind justice. Blind justice means that the law treats
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everybody in the same way. Everybody has the same rights and freedoms as everybody else without regard
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to their lineage or who their parents are. Now, of course, the idea of aboriginal rights
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is very deeply embedded in Canada. It is in the constitution. So, you just can't do away with it
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within the Canadian context. But if you had a new country, an independent Alberta,
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then my proposition is that special rights for anybody, including aboriginal people,
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ought not to exist. You need to start again. And by the way, if it is a new country, if it is a new
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independent country, then the Canadian constitution does not automatically apply. The new country can
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start again with a clean slate and say, all right, folks, how do we want this country to work?
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And so, and one of the things that I think, if Albertans really want a free country, and this
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comes along with the word free, free includes, I think, the rule of law. And one of the bits of the
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rule of law is blind justice. Blind justice means the law does not care who you are. And that means
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that there should be no special status for anyone. And as you pointed out, for an awful lot of
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indigenous individuals, this special status that they have works to their disadvantage.
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Because their aboriginal rights are group rights, which do not work the same way at all. The problem
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with group rights is that those group rights tend to be under the control of an elite.
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Right? So for example, let's say you belong to a group that has a reserve, reserve rights.
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Okay. That does not mean that you own property on the reserve. The reserve is under the control of
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the group and you have permission to live there. You do not own a lot that you are allowed to sell or
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mortgage or improve. In other words, on the reserve, individual aboriginal people are denied the same
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kinds of rights as everybody else. And so one of the ways to empower the indigenous individual
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is to get rid of the idea of group rights, special group rights, and say, and insist
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that everybody has the same rights as everybody else. And we should bring this old, out-of-date
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Well, one of the really interesting parts that stood out to me in your essay here, Bruce,
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was you talk about the British Isles. You talk about how there was a mix of invasion, migration,
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and mixing. You say it's a history of humanity. The Romans invaded the British Isles in 55 BC.
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They conquered the place about 100 years later. And on their second tribe, by 500 AD, Saxons had
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established themselves as a dominant power. In 1066, the Normans overthrew the Saxon kingdom. Today,
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British law does not have different rights for the descendants of Romans, Saxons, and Normans. They're
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all British people. What a great analogy because, you know, we're talking about the events that
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happened, you know, 500 years ago in some cases where, you know, the history since then is the
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history of the development of Canada, right? There has been mixing. There has been intermarriage. There
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have been different groups that have come and go. And so it's hard to kind of reconcile why it is
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that we have this special status caved out. And I understand why First Nations chiefs specifically
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would want to maintain their system of control because they have a lot of power. They have a
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lot of influence. They get a lot of money. And a lot of times the money comes through the chiefs and
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it doesn't necessarily trickle its way down to the rank and file members of the community. And we've all
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heard many stories and seen many stories where you see a chief living large and the people living in
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squalor. And you wouldn't see that in other parts of Canadian society, right? You wouldn't see a
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situation where a small town mayor would be incredibly wealthy and all of the inhabitants
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of that town would be poor and dependent upon that mayor. That just doesn't happen in Canadian
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society. And yet in too many cases, it does happen in First Nations. And so I guess my question just
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for you, Bruce, is like, how do we overcome this, right? Like even just the mere mention of a new
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independent country in Alberta, we're not even halfway there, right? We're still ways away.
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And you see the chiefs, you know, throwing the papers away and saying, this is unacceptable.
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You can't do this. We're not going to support it. And a lot of talk has come about, you know,
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what, whether these rights would have to pass over to an independent Alberta. And then you have the
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premier saying at least in under, you know, while she's premier, it wouldn't. So what's the next step here?
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Well, the next step, I think, for people individually is to correct the fiction, the myth
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that there are distinct peoples in this country that deserve different sets of rights. So for example,
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a long time ago, I was having a conversation with a self-described indigenous person. And he said to
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me, you know, we were here first, you know, we have been here for longer than you. And I asked him how
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old he was. And he said he was in his late twenties. And I said, well, in that case, I have been here
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longer than you. And I don't care who your parents are. I don't care what your genes are. I don't
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where your, don't care where your genes come from. I don't care what kind of affiliations that you
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claim for yourself, which is entirely your business. The fact that you can trace ancestry
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back to somewhere hundreds of years ago, it makes no difference to me whatsoever, because that idea
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in other contexts would be resoundingly rejected. This is an appeal to purity, in a sense. And frankly,
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I don't think anybody is pure and who cares? We are all mixtures of things. I am not European.
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And I don't even know what that means anyway. Europeans are mixtures of things. I'm a Canadian.
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I was born here. I'm native to the place. I am as native to the place as anybody else. And I object
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to the idea that somebody should say, well, you know, I come from this people and therefore I don't
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care. Deals that were made between two distinct groups of people hundreds of years ago have nothing
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to do with me and nothing frankly to do with anybody who's alive today. The idea that the deals made
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between distinct peoples hundreds of years ago should be binding on people who are now all mixed
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Well, I tend to agree. Like if we were having this conversation, say, you know, like, so like myself,
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I'm a ninth generation Canadian, which means my children are 10th generation Canadian, at least
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on one side. But then on another side, you know, my grandfather was born in the UK. So, you know,
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only a second generation Canadian on that side. Whereas my husband moved to Canada as a child. And so he
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is a first generation Canadian. And I would argue that he is more patriotic and loves the country
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more than anyone in my family, certainly. Like, like, and, and if anyone were to suggest
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that someone who came to Canada as a child wasn't a true Canadian because their family hadn't been
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here as long as someone else, I think it would be routinely rejected as just unacceptable. And yet
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to your point, um, let's just, let's just try a thought experiment. Let's say tomorrow Canada was
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invaded, you know, and we wouldn't like that. And we would try to resist. And so we should,
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but let's say it happens anyway, you know, large numbers of people come in now the day after that's
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a calamity. But let's say this happens 400 years ago. And in that time, the people who come in mix
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with the people who are here and 400 years later, do we really care who was here and who was not and
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who the descendants are and how they mixed and who they married and how they procreated and whether or
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not you can trace more of your lineage and your genes to that group or that group. I mean, this is the
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recipe for a permanent disaster. And if, if this was the way it was done all over the world,
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then, then it wouldn't work. It'd be, it'd be obvious. It'd be obvious going back to, to the, to UK
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example. I mean, imagine if the UK insisted upon having different groups of rights, depending upon
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whether you were more Norman or more Saxon. That's insane. And yet we are more or less doing the same
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thing here in Canada and thinking of it as the natural order of things. It is, it is actually
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the reverse. Well, and people think they're being progressive by doing it, but you, you mentioned
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in the piece as well that, uh, you know, to someone who came from India and say was trying to escape the
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caste system, right? Where, where you're born and who your parents are dictates every single aspect of,
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of, you know, what kind of job you'll get, who you'll marry, where you can live, et cetera.
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Uh, and to come to Canada and sort of be met by this strange system of predatory chiefs.
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And this is a very old idea, right? That, that your rights depend upon your lineage. I mean,
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though that idea has existed all over the place at all different kinds of times. I mean, you can
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also see that, that, that idea in old times in the UK, right? That the ruler was the son of the
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ruler before him and for no other reason. And if your parents were serfs, you were a serf too.
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That's the way it worked. Everything depended upon lineage. And then we did away with that idea.
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The law evolved so that everybody had the right to vote. Everybody could run. Everybody could own
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property and buy and sell it as they chose. Everybody can marry whoever they want to and
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divorce as they saw fit. That's the way it's supposed to be. It's supposed to be that every
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individual has the same rights and freedoms as everybody else without regard to their identity
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or genes or lineage or parents. And it is, it is, I think it is no longer appropriate
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to rely on a, a, a story that happened a long time ago in our history. So as to divide the people who
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are here alive today, regardless of where they came from, whether or not they were born here,
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whether or not they arrived here recently, whether or not they can trace their, their family tree to
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one place or another, it doesn't matter. We are all Canadian. We all get the same rights and freedoms
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as everybody else. Wow. If only our politicians had that much common sense, Bruce, I want to quickly
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ask you about this concept of the right to free prior and informed consent, because it seems to me
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that this, I mean, I mean, it came from the United Nations and this idea that First Nations have to
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be integrately involved in any kind of development project, that it does sort of give them a veto
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over projects passing through their land. I think this is a really dangerous concept. And, you know,
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it's, it's, it's, it's there. Canada's kind of stuck with it at this point. I will just say,
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I'm a little optimistic that Bill C-5 seems to give the minister power to sort of override some of these
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more ridiculous laws that were brought in. What do you, what do you make of this concept and this
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sort of veto power that has been given to First Nations? Yes. So the Supreme Court of Canada found
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within section 35 of the constitution, a duty to consult, meaning that before projects are approved,
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before government goes ahead with things, they have to consult with First Nations. Now that duty,
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although it's, it's a, it's a significant obstacle to developing all kinds of things, but it is not
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strictly speaking a veto. In fact, the Supreme Court said that explicitly, it is not a veto. However, in
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the meantime, both the federal government and the BC government passed statutes incorporating the UN
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declaration on the rights of indigenous people into both federal and BC law. And that declaration from
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the UN basically says that indigenous peoples are entitled to, to, to a veto over development. So
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now we have a contest between whether it is simply a duty to consult and then get on with it or whether
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or not there is actually a veto. And the argument being made is not a bad one, that the statutes passed
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by the federal government and the BC government for that matter, do in fact provide a veto to First
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Nations over anything that affects any land that they ever used occupied or, or, or, or as the, as the
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case may be. And so, yeah, whether or not Bill C-5 will prevail over that older statute, uh, remains to
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be, remains to be seen, but, but this is, this is just a reflection of the tangle that we are now in
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because some groups of people get more rights than other groups of people. If I might just, um,
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mention the suggestion that I've made about a way out of this in a new Alberta, which it would be this
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take reserve lands, which right now are controlled by the group and not owned by individual
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Aboriginal people. Take those reserve lands, chop them up into lots, give those lots, give title to
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those lots, to individual members of the group so that they can do with that land as they wish, just like
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everybody else, that will empower the Indigenous individual and take power away from these elite leaders
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who are dictating the way these group rights will be honored.
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Well, uh, given the housing market in Canada today and the cost of, of property, I think that would
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probably be a great deal and that many First Nations people would gladly, uh, you know, leave all of this
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sort of bureaucratic tangle in exchange for land that belongs to them personally, as opposed to,
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uh, their, their community and their chief. Uh, Bruce, thanks so much for joining the show. It's
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always really, uh, interesting. And, uh, thank you for your insights.
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All right, folks. That's all the time we have for today. We have a little bit of a different
00:22:46.360
programming coming up in the next few days. We're heading into a summer schedule. So I'll be
00:22:49.980
scaling back the Candice Malcolm show and only coming to you a few times a week. And then we have
00:22:55.020
exciting new shows that we're going to be introducing the coming days. So you'll always
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get a new video from us every single day here at Juno news, but it won't always be from me. So
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thank you so much, folks. I'm Candice Malcolm. This is Candice Malcolm show. Thank you. And God bless.
00:23:09.920
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