The Candice Malcolm Show - Could First Nations block an Independent Alberta？ Law professor explains

00:00:00.000 Hi, I'm Candace Malcolm, and this is The Candace Malcolm Show. We have a great episode for you

00:00:06.960 today. Bruce Pardy is going to be joining the show in a little bit. Now, I want to point your

00:00:11.120 attention to this news piece. You may have seen it circulating on social media. The Assembly of

00:00:16.300 First Nations is to meet on Bill C-5. They called an emergency meeting to discuss Bill C-5. So

00:00:22.760 remember, Bill C-5 is the bill introduced by Mark Carney and his government last Friday called the

00:00:28.000 Free Trade and Labor Mobility Act and the Build Canada Act. I've been quite complimentary of

00:00:32.760 this bill, folks. I think it is exactly what Canadians need. We need to get energy and pipelines

00:00:37.720 built to market. And this bill basically allows the government to override some of the most

00:00:42.880 overzealous environmental rules brought in by the Trudeau government. And that is, again, what we

00:00:47.460 need. But apparently some in the First Nations are very worried and very upset about this. Let me read

00:00:52.640 a little bit from the Globe and Mail here. The Assembly of First Nations has called an emergency

00:00:56.980 meeting for all 634 chiefs on June 16th to address growing concerns over Bill C-5, which would allow

00:01:03.460 the feds to fast track infrastructural approvals. Indigenous leaders warned the bill could override

00:01:08.720 the right to free prior and informed consent, effectively undermining the Indigenous veto power 0.93

00:01:15.540 over resource development. Folks, ask yourself this question. Why do some Indigenous groups get a

00:01:21.760 veto power over natural resources? Why on earth do we have this law on the books? What is free

00:01:26.900 prior and informed consent? It is such a confused legal concept. And the fact that this is on the

00:01:31.860 books in Canada is one of the greatest shames of the Trudeau government. I will continue here from

00:01:37.220 the Globe and Mail. It says the AFN will use the meeting to coordinate a legal and political response

00:01:42.600 arguing that Bill C-5 threatens treaty rights and violates Canada's commitments to Indigenous peoples.

00:01:48.560 So just to continue this, at a presser in Ottawa, the Assembly of First Nations BC Regional Chief

00:01:54.840 Terry Tagui said that while no government has a veto over natural resource projects, Canada needs to

00:02:00.300 properly consult on national energy legislation. Let's play that clip. No government has a veto,

00:02:06.960 meaning that when we come to a decision, all governments come into a room to make a decision

00:02:12.380 together. And I think, you know, First Nations certainly as a part of this need to be part of

00:02:18.380 the decision-making process. So what he said there, that no government has a veto, remember that Attorney

00:02:24.280 General Sean Fraser said that last week. He said that Indigenous groups and no government gets a veto

00:02:29.800 power. And apparently the backlash to that comment was so strong and so intense that he came out the

00:02:34.780 next day, apologized for even taking the question, and he claimed that his answer hurt people and set back

00:02:41.200 the conversation with First Nations. But all of this raises a question, at least to me, is why is it that

00:02:47.460 some groups, why is it the First Nations groups, get these special privileges and get more rights than the

00:02:52.520 rest of Canadians? Like, I was told that Canada is a free democratic country and that we all have the same

00:02:58.000 laws and privileges, and yet, clearly, the rules are unequal. And this leads me to another story. Similarly, that

00:03:05.120 some First Nations really oppose what Premier Daniel Smith is doing out in Alberta. They

00:03:10.940 really oppose the Citizens Initiative Act. Remember that the day after the federal election, Daniel

00:03:16.120 Smith came out and announced changes to the Citizens Initiative Act that will lower the threshold to

00:03:21.400 trigger a referendum on sovereignty, if that is what the people want. So look at this press conference.

00:03:26.780 This is unbelievable. On May 6th, at this press conference, the Blackfoot and Cree chiefs slammed the

00:03:33.240 Citizens Initiative Act, which is also known as Bill 54 in Alberta. They called it garbage. They threw it on the

00:03:39.160 ground, very theatric press conference here, and they basically gave a warning, a fierce warning,

00:03:44.940 to the Premier. Let's play that clip. Bill 54, this is what we think of you. You're garbage like that. 0.97

00:03:53.620 This is treaty land, and we stand on it today. This is treaty country, and any talk of separation

00:04:03.860 is really insanity. And if you feel that you have problems with First Nations,

00:04:09.640 you could leave. So I don't really think that anyone has problems with First Nations. Our problem

00:04:14.440 is that there are some laws that treat Canadians differently, and we're going to get to the bottom

00:04:19.060 of that. So in response to this press conference and other pushback, Premier Daniel Smith wrote a

00:04:23.740 letter to First Nations. This came on May 13th. She said, among other things, I wish to reiterate what I

00:04:29.880 shared in my address to Albertans on May 5th. As Premier, I am entirely committed to protecting,

00:04:35.660 upholding, and honoring the constitutional rights of First Nations, Métis, and Inuit people.

00:04:39.560 This includes ensuring that any Citizens Initiative referendum, if passed, must uphold and honor

00:04:45.480 treaties 6, 7, and 8. Here is a clip of the Premier saying that.

00:04:49.860 I also want to state unequivocally that as Premier, I'm entirely committed to protecting,

00:04:54.880 upholding, and honoring the inherent rights of First Nations, Métis, and Inuit peoples.

00:04:59.660 Therefore, any citizen-initiated referendum question must not violate the constitutional

00:05:05.940 rights of First Nations, Métis, and Inuit peoples, and must uphold and honor treaties 6, 7, and 8,

00:05:14.000 should any referendum question ever pass. This is non-negotiable.

00:05:18.800 So basically, the deals that were drafted with the Canadian people, with the Crown, with Ottawa,

00:05:26.880 would carry over into an independent Alberta. And you might say, oh, well, that seems only fair.

00:05:32.460 But the reality is that things aren't exactly going very well for First Nations relative to the rest

00:05:37.380 of the Canadian public. Data shows that. And so the idea that we would just take the broken system

00:05:41.640 and apply it to the new Alberta government, if that were to ever happen, just sort of seems to

00:05:46.920 undermine the whole project in my mind. Now, that apparently wasn't good enough for some in the First

00:05:51.400 Nations community because the Onion Lake Cree Nation, we learned, is going to proceed with a

00:05:57.080 legal challenge against Alberta sovereignty and against Premier Danielle Smith. So this is CTV

00:06:02.380 reporting on May 15. Alberta's recent passage of Bill 54, which lowers the threshold to trigger

00:06:07.340 referendum, has prompted Onion Lake Cree Nation to revive its legal challenge against the Alberta

00:06:12.660 Sovereignty Act. The nation argues the act and the bill infringe on Treaty 6 rights and pave the way

00:06:18.100 for separatist agenda. Chief Henry Lewis says the province failed to consult Indigenous communities,

00:06:23.880 violating the honor of the crown. Okay, I want to bring in Bruce Party to have a conversation on

00:06:31.260 this to help us understand a little bit more. Bruce is a legal scholar and professor of law at Queen's

00:06:35.920 University. And Bruce has an excellent article that's very related to this over on his subsec page

00:06:42.780 saying that there should be no special aboriginal rights in a free Alberta. So, Bruce, first of all,

00:06:49.200 welcome to the show. Thank you for joining us. Thank you, Candice. Thanks for having me.

00:06:53.180 Okay, so let's start with your article. Really thought-provoking, as usual. I really appreciated it.

00:07:00.240 And I want you to sort of walk us through what you write and sort of where this came from.

00:07:06.620 Right. So, as you pointed out and as the clip demonstrated, Daniel Smith has indicated that

00:07:15.360 in independent Alberta, if it came to that, that aboriginal rights, treaty rights, and so on would

00:07:22.380 be honored. And a lot of people in the separation movement have said the same thing. I think that is

00:07:27.880 a mistake. The kinds of stories that you referred to and showed clips from is exactly the kind of

00:07:36.240 result that you get when we have a legal system that provides different rights to different people.

00:07:45.420 We've lost the idea in this country of blind justice. Blind justice means that the law treats

00:07:54.200 everybody in the same way. Everybody has the same rights and freedoms as everybody else without regard

00:08:00.400 to their lineage or who their parents are. Now, of course, the idea of aboriginal rights 1.00

00:08:09.100 is very deeply embedded in Canada. It is in the constitution. So, you just can't do away with it

00:08:16.880 within the Canadian context. But if you had a new country, an independent Alberta,

00:08:23.740 then my proposition is that special rights for anybody, including aboriginal people,

00:08:31.500 ought not to exist. You need to start again. And by the way, if it is a new country, if it is a new

00:08:38.180 independent country, then the Canadian constitution does not automatically apply. The new country can

00:08:44.600 start again with a clean slate and say, all right, folks, how do we want this country to work?

00:08:49.500 And so, and one of the things that I think, if Albertans really want a free country, and this

00:08:57.060 comes along with the word free, free includes, I think, the rule of law. And one of the bits of the

00:09:03.180 rule of law is blind justice. Blind justice means the law does not care who you are. And that means

00:09:13.180 that there should be no special status for anyone. And as you pointed out, for an awful lot of

00:09:19.840 indigenous individuals, this special status that they have works to their disadvantage. 1.00

00:09:26.820 Because their aboriginal rights are group rights, which do not work the same way at all. The problem 0.98

00:09:33.280 with group rights is that those group rights tend to be under the control of an elite.

00:09:40.800 Right? So for example, let's say you belong to a group that has a reserve, reserve rights.

00:09:47.400 Okay. That does not mean that you own property on the reserve. The reserve is under the control of

00:09:53.520 the group and you have permission to live there. You do not own a lot that you are allowed to sell or

00:10:00.840 mortgage or improve. In other words, on the reserve, individual aboriginal people are denied the same

00:10:08.900 kinds of rights as everybody else. And so one of the ways to empower the indigenous individual

00:10:15.420 is to get rid of the idea of group rights, special group rights, and say, and insist

00:10:21.200 that everybody has the same rights as everybody else. And we should bring this old, out-of-date

00:10:29.300 idea to an end.

00:10:31.260 Well, one of the really interesting parts that stood out to me in your essay here, Bruce,

00:10:36.440 was you talk about the British Isles. You talk about how there was a mix of invasion, migration,

00:10:41.560 and mixing. You say it's a history of humanity. The Romans invaded the British Isles in 55 BC.

00:10:47.220 They conquered the place about 100 years later. And on their second tribe, by 500 AD, Saxons had 0.95

00:10:52.120 established themselves as a dominant power. In 1066, the Normans overthrew the Saxon kingdom. Today,

00:10:57.620 British law does not have different rights for the descendants of Romans, Saxons, and Normans. They're

00:11:02.140 all British people. What a great analogy because, you know, we're talking about the events that

00:11:08.520 happened, you know, 500 years ago in some cases where, you know, the history since then is the

00:11:14.940 history of the development of Canada, right? There has been mixing. There has been intermarriage. There

00:11:19.460 have been different groups that have come and go. And so it's hard to kind of reconcile why it is

00:11:24.900 that we have this special status caved out. And I understand why First Nations chiefs specifically

00:11:32.280 would want to maintain their system of control because they have a lot of power. They have a

00:11:36.420 lot of influence. They get a lot of money. And a lot of times the money comes through the chiefs and

00:11:40.140 it doesn't necessarily trickle its way down to the rank and file members of the community. And we've all

00:11:46.120 heard many stories and seen many stories where you see a chief living large and the people living in

00:11:51.620 squalor. And you wouldn't see that in other parts of Canadian society, right? You wouldn't see a 1.00

00:11:56.800 situation where a small town mayor would be incredibly wealthy and all of the inhabitants

00:12:01.580 of that town would be poor and dependent upon that mayor. That just doesn't happen in Canadian

00:12:06.220 society. And yet in too many cases, it does happen in First Nations. And so I guess my question just

00:12:13.380 for you, Bruce, is like, how do we overcome this, right? Like even just the mere mention of a new

00:12:20.220 independent country in Alberta, we're not even halfway there, right? We're still ways away.

00:12:26.600 And you see the chiefs, you know, throwing the papers away and saying, this is unacceptable.

00:12:32.140 You can't do this. We're not going to support it. And a lot of talk has come about, you know,

00:12:36.620 what, whether these rights would have to pass over to an independent Alberta. And then you have the

00:12:41.440 premier saying at least in under, you know, while she's premier, it wouldn't. So what's the next step here?

00:12:49.300 Well, the next step, I think, for people individually is to correct the fiction, the myth

00:13:02.680 that there are distinct peoples in this country that deserve different sets of rights. So for example,

00:13:12.740 a long time ago, I was having a conversation with a self-described indigenous person. And he said to

00:13:22.480 me, you know, we were here first, you know, we have been here for longer than you. And I asked him how

00:13:31.140 old he was. And he said he was in his late twenties. And I said, well, in that case, I have been here

00:13:41.440 longer than you. And I don't care who your parents are. I don't care what your genes are. I don't

00:13:47.400 where your, don't care where your genes come from. I don't care what kind of affiliations that you 0.70

00:13:52.580 claim for yourself, which is entirely your business. The fact that you can trace ancestry

00:13:58.520 back to somewhere hundreds of years ago, it makes no difference to me whatsoever, because that idea

00:14:05.380 in other contexts would be resoundingly rejected. This is an appeal to purity, in a sense. And frankly,

00:14:15.180 I don't think anybody is pure and who cares? We are all mixtures of things. I am not European.

00:14:25.900 And I don't even know what that means anyway. Europeans are mixtures of things. I'm a Canadian. 0.85

00:14:30.760 I was born here. I'm native to the place. I am as native to the place as anybody else. And I object

00:14:38.100 to the idea that somebody should say, well, you know, I come from this people and therefore I don't

00:14:44.620 care. Deals that were made between two distinct groups of people hundreds of years ago have nothing

00:14:52.380 to do with me and nothing frankly to do with anybody who's alive today. The idea that the deals made

00:14:59.460 between distinct peoples hundreds of years ago should be binding on people who are now all mixed 1.00

00:15:05.100 up is frankly absurd.

00:15:08.960 Well, I tend to agree. Like if we were having this conversation, say, you know, like, so like myself,

00:15:14.740 I'm a ninth generation Canadian, which means my children are 10th generation Canadian, at least

00:15:18.660 on one side. But then on another side, you know, my grandfather was born in the UK. So, you know,

00:15:22.960 only a second generation Canadian on that side. Whereas my husband moved to Canada as a child. And so he

00:15:29.020 is a first generation Canadian. And I would argue that he is more patriotic and loves the country

00:15:33.500 more than anyone in my family, certainly. Like, like, and, and if anyone were to suggest

00:15:37.680 that someone who came to Canada as a child wasn't a true Canadian because their family hadn't been

00:15:42.280 here as long as someone else, I think it would be routinely rejected as just unacceptable. And yet

00:15:47.540 to your point, um, let's just, let's just try a thought experiment. Let's say tomorrow Canada was

00:15:53.460 invaded, you know, and we wouldn't like that. And we would try to resist. And so we should,

00:15:58.920 but let's say it happens anyway, you know, large numbers of people come in now the day after that's

00:16:08.100 a calamity. But let's say this happens 400 years ago. And in that time, the people who come in mix 0.99

00:16:18.440 with the people who are here and 400 years later, do we really care who was here and who was not and

00:16:26.620 who the descendants are and how they mixed and who they married and how they procreated and whether or

00:16:31.060 not you can trace more of your lineage and your genes to that group or that group. I mean, this is the

00:16:36.460 recipe for a permanent disaster. And if, if this was the way it was done all over the world,

00:16:42.640 then, then it wouldn't work. It'd be, it'd be obvious. It'd be obvious going back to, to the, to UK

00:16:49.500 example. I mean, imagine if the UK insisted upon having different groups of rights, depending upon

00:16:55.740 whether you were more Norman or more Saxon. That's insane. And yet we are more or less doing the same

00:17:04.900 thing here in Canada and thinking of it as the natural order of things. It is, it is actually

00:17:10.840 the reverse. Well, and people think they're being progressive by doing it, but you, you mentioned

00:17:15.900 in the piece as well that, uh, you know, to someone who came from India and say was trying to escape the

00:17:21.560 caste system, right? Where, where you're born and who your parents are dictates every single aspect of,

00:17:28.000 of, you know, what kind of job you'll get, who you'll marry, where you can live, et cetera.

00:17:31.240 Uh, and to come to Canada and sort of be met by this strange system of predatory chiefs.

00:17:37.680 And this is a very old idea, right? That, that your rights depend upon your lineage. I mean,

00:17:41.720 though that idea has existed all over the place at all different kinds of times. I mean, you can

00:17:46.600 also see that, that, that idea in old times in the UK, right? That the ruler was the son of the

00:17:55.260 ruler before him and for no other reason. And if your parents were serfs, you were a serf too.

00:18:02.660 That's the way it worked. Everything depended upon lineage. And then we did away with that idea.

00:18:09.220 The law evolved so that everybody had the right to vote. Everybody could run. Everybody could own

00:18:15.660 property and buy and sell it as they chose. Everybody can marry whoever they want to and

00:18:20.420 divorce as they saw fit. That's the way it's supposed to be. It's supposed to be that every

00:18:24.820 individual has the same rights and freedoms as everybody else without regard to their identity

00:18:30.440 or genes or lineage or parents. And it is, it is, I think it is no longer appropriate

00:18:38.200 to rely on a, a, a story that happened a long time ago in our history. So as to divide the people who

00:18:47.960 are here alive today, regardless of where they came from, whether or not they were born here,

00:18:53.440 whether or not they arrived here recently, whether or not they can trace their, their family tree to

00:18:59.100 one place or another, it doesn't matter. We are all Canadian. We all get the same rights and freedoms

00:19:05.780 as everybody else. Wow. If only our politicians had that much common sense, Bruce, I want to quickly

00:19:11.600 ask you about this concept of the right to free prior and informed consent, because it seems to me

00:19:18.320 that this, I mean, I mean, it came from the United Nations and this idea that First Nations have to

00:19:23.940 be integrately involved in any kind of development project, that it does sort of give them a veto

00:19:29.040 over projects passing through their land. I think this is a really dangerous concept. And, you know,

00:19:35.500 it's, it's, it's, it's there. Canada's kind of stuck with it at this point. I will just say,

00:19:40.460 I'm a little optimistic that Bill C-5 seems to give the minister power to sort of override some of these

00:19:47.000 more ridiculous laws that were brought in. What do you, what do you make of this concept and this

00:19:53.580 sort of veto power that has been given to First Nations? Yes. So the Supreme Court of Canada found

00:19:59.820 within section 35 of the constitution, a duty to consult, meaning that before projects are approved,

00:20:07.340 before government goes ahead with things, they have to consult with First Nations. Now that duty,

00:20:12.760 although it's, it's a, it's a significant obstacle to developing all kinds of things, but it is not

00:20:19.480 strictly speaking a veto. In fact, the Supreme Court said that explicitly, it is not a veto. However, in

00:20:24.320 the meantime, both the federal government and the BC government passed statutes incorporating the UN

00:20:32.760 declaration on the rights of indigenous people into both federal and BC law. And that declaration from

00:20:38.520 the UN basically says that indigenous peoples are entitled to, to, to a veto over development. So

00:20:46.880 now we have a contest between whether it is simply a duty to consult and then get on with it or whether

00:20:53.000 or not there is actually a veto. And the argument being made is not a bad one, that the statutes passed

00:20:58.780 by the federal government and the BC government for that matter, do in fact provide a veto to First

00:21:06.440 Nations over anything that affects any land that they ever used occupied or, or, or, or as the, as the

00:21:13.700 case may be. And so, yeah, whether or not Bill C-5 will prevail over that older statute, uh, remains to

00:21:21.120 be, remains to be seen, but, but this is, this is just a reflection of the tangle that we are now in

00:21:27.540 because some groups of people get more rights than other groups of people. If I might just, um,

00:21:35.720 mention the suggestion that I've made about a way out of this in a new Alberta, which it would be this

00:21:40.780 take reserve lands, which right now are controlled by the group and not owned by individual

00:21:48.040 Aboriginal people. Take those reserve lands, chop them up into lots, give those lots, give title to 1.00

00:21:56.160 those lots, to individual members of the group so that they can do with that land as they wish, just like

00:22:03.820 everybody else, that will empower the Indigenous individual and take power away from these elite leaders 1.00

00:22:10.780 who are dictating the way these group rights will be honored.

00:22:14.300 Well, uh, given the housing market in Canada today and the cost of, of property, I think that would

00:22:19.680 probably be a great deal and that many First Nations people would gladly, uh, you know, leave all of this 1.00

00:22:25.020 sort of bureaucratic tangle in exchange for land that belongs to them personally, as opposed to,

00:22:31.060 uh, their, their community and their chief. Uh, Bruce, thanks so much for joining the show. It's

00:22:35.940 always really, uh, interesting. And, uh, thank you for your insights.

00:22:39.900 My pleasure, Candice. Thanks for having me.

00:22:41.700 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

00:22:58.520 get a new video from us every single day here at Juno news, but it won't always be from me. So

00:23:03.860 thank you so much, folks. I'm Candice Malcolm. This is Candice Malcolm show. Thank you. And God bless.

00:23:09.920 You're watching Juno news, Canada's fastest growing independent news network. Our team works day and

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The Candice Malcolm Show - June 12, 2025

Could First Nations block an Independent Alberta？ Law professor explains

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