"The Party of the Charter" and Parliamentary Democracy

As a former member of the Interior Health Authority’s Clinical Ethics Committee, I can attest  that assisted dying is one  of the mostly deeply controversial and difficult  subjects under the Sun, which makes the way it has been handled all the more deplorable.

The Liberals’ “Motion 6” (now mercifully withdrawn) would have reduced the number of days available to the Opposition to introduce motions, as well as imposing stricter time limits on those motions. Members of cabinet or parliamentary secretaries — all Liberals — would have been granted additional powers to control the business of the House as well.  Under the proposed new rules, we might have seen W.A.C. Bennett-style all-night sittings.

Why this suddenly draconian  posture towards Parliament, which also resulted in the Prime Minister’s angry and impulsive tussle, known as  “elbowgate”?  The Liberals  were deeply annoyed  and embarrassed when , at the beginning of the same  week, a surprise vote by the opposition caused the Liberal government to almost lost a vote on Monday on its own legislation to change Air Canada rules. Furthermore,  the government felt that it had to pass the doctor-assisted  dying legislation, Bill C-14, by the end of the week. (The Court has said that after June 6 the existing law banning physician –assisted  death will be of no further effect, as it had been struck down in the Carter decision back in February 2015.)  Hence Trudeau’s impatience and petulance. 

That much has been said often and elsewhere. But a couple of  additional observations are needed in order to complete the picture.  First, who is to blame for all this confusion and legal uncertainty? Perhaps I am just in a diplomatic mood, but I would apportion the blame just about equally between the Conservatives, the Liberals, and the Supreme Court itself.  The Conservatives, because Stephen Harper’s strict political party rule about avoiding socially conservative causes in this socially liberal country was rigidly adhered to  for electoral purposes—even if it  meant deliberately ignoring the Supreme Court  decision for  a full 8 1/2 months before the October 19, 2015 election.  The Liberals, because even though the Conservatives had ragged the puck for that  long, Grits were well aware of that fact the moment they took office, and therefore should have anticipated the time pressures that would arise.  The Supreme Court, because the Justices should have appreciated that a bill of this nature would require extensive debate as every MP expressed their constituents and their own consciences, canvassed medical opinion, and attracted considerable “sober second thought” from the Senate.  (The Court  had initially suspended its judgment for 12 months in  an election year; then it gave the new Government a paltry 4-month extension of that deadline on top of the Liberals’  already overflowing agenda.)

Second, one must add to this litany of institutional failings the background problem of  Charterphilia, a disease which is rampant throughout English Canada.  Its symptoms  are  most acute in the Liberal Party  (“the Party of the Charter”) and in the heart and mind of its young leader:   a pulse-quickening reverence for Charter rights and a belief in the near-papal infallibility of the Supreme Court's edicts about that Holy Writ.  That it was a Charter Right that was at issue , and that the Supreme Court had Spoken on its meaning, no doubt fuelled the prime minister’s  outrage at the continued stalling tactics of the Opposition and contributed to his remarkable lack of respect for Parliament.  (Remember Prince Hamlet, who was also egged on by his father's ghost to occasional impetuosity.)

The truth, however, is that Opposition Parliamentarians were dealing appropriately  with a profoundly political issue, a fact to which this Government in particular had become especially and determinedly blind.

Not So Fast on the Nenqay Accord

My initial response  to  the successful negotiation of the Nenqay Demi Accord announced this February was highly positive, because I viewed the Accord primarily from the perspective of the Chilcotin Supreme Court decision on aboriginal rights and its application to the long-simmering conflict over the Prosperity Mine.  My reasoning was as follows:  the fact that a high bar had been set by the Supreme Court, the Federal Cabinet, and the Environmental Reviews, meant that the parties would be measured under the Accord by how well they adhered to  eight mutually agreed –upon “Pillars of Reconciliation”.  (The Federal Government would presumably be measured by these criteria as well.)  Any economic project that cleared all of these hurdles, I reasoned, would be something that the vast majority of the community could agree upon and unite behind. But that was before someone pointed out to me that the map for the territory being discussed in the Nenqay Demi Accord  was quite different from the map that had been referred to by the Supreme Court ; and before I had reflected upon Christy Clark’s motivation in rushing things to a conclusion.

The map for the Accord now includes Quesnel, plus the area west of the Fraser River up to and including  part of Tweedsmuir Park.   This takes in land that other bands lay claim to, and  this could cause more conflict than unity.  Sure, no one’s private property is being expropriated,  but we have an interest in public property, too.  The government should not use land claims as way of getting around provincial park designation  in order to promote industrial development.  And by choosing a larger, more controversial map, the parties to this Accord are creating the same problem that was the ‘dark side’ of  the Nisga’a and Tsawwassen  treaties: that of overlapping tribal claims. The Ulkatcho, Bella Coola, and Redstone people must not be thrown under the bus just to placate one First Nation and promote development for the next election.

 Accordingly, it is imperative that  lands designated as  ‘Category A’, which  will be  under exclusive Chilcotin control,  must meet three conditions:  (1) they should not be extended to areas outside of  the territory referred to in the Supreme Court decision ; (2) they should  not extend to lands subject to overlapping claims by other First Nations;  and (3) they should not fall within the current boundaries of Tweedsmuir Park.   Other lands may be designated as ‘Caretaker areas’ which recognize the Chilcotin people as holding special rights and responsibilities, but not to the exclusion of other parties.    While much work remains to be done (the precise location of ‘Category A’ and ‘Caretaker’ lands will be negotiated between now and 2020), that to me is the bottom line, if the Nenqay Accord is to be worthy of broad public support.

Mark Crawford teaches at Athabasca University.  He can be reached at markcrawf@gmail.com.