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Caroline Elliott: Unilateral Indigenous decisions can’t be allowed to override democratic principles

Commentary

When the Líl̓wat Nation and the N’Quatqua First Nation announced a unilateral five-week closure of Joffre Lakes Provincial Park with no notice, it was despite the fact that they had no legal authority to do so. Nonetheless, the B.C. government’s response was to quietly acquiesce, posting that the popular park was “currently inaccessible” and dispatching park officials to turn hikers away.

This follows years of policies that have increased decision-making powers for Indigenous governments and sought agreement on the management of public lands. However, as in any pluralistic society, the interests of different parties often differ and agreement cannot always be reached.

This is where democratic principles come into play.

In a democracy, competing interests are balanced by elected decision-makers. This means that through our chosen representatives, we have a say in the rules we live by. We have a role in electing those who make decisions on our behalf, and we hold them accountable in subsequent elections, helping ensure they act in our interests.

Popular rule demands inclusion, and unfortunately Canada has historically fallen far short of this standard. Women did not have the right to vote until about 100 years ago. For Asian Canadians, it was 1948, and only in 1960 did Indigenous Canadians get to vote without conditions.

Such exclusionary practices were deeply unjust, but even the gravest of past wrongs cannot justify circumventing fundamental democratic principles today. It’s imperative that the principle of popular rule remains intact even when we look at ways to address injustices or achieve other worthy goals.

The B.C. government’s adoption of the UN Declaration on the Rights of Indigenous Peoples four years ago is exactly this kind of well-intentioned initiative, with troubling consequences that are more obvious in cases like the Joffre Lakes closure.  

The Declaration was cited by the Nations in their notice shutting down the park, including its provision that Indigenous people have the right to participate in decision-making in matters that affect their rights. This provision itself is not problematic from a democratic perspective.

Indeed, the Supreme Court of Canada has made it clear that there is a duty to consult and, where appropriate, accommodate Indigenous groups affected by government decisions. However, it has not established a veto for Indigenous groups, and in cases of dispute, has instead left room for governments to proceed with decisions justified by the broader public interest.

This is generally consistent with democratic principles because there is an accountability relationship between federal/provincial decision-makers and the citizens (including Indigenous people) who elect them. Not everyone will agree with every decision, but they do get to reward or punish their representatives at the ballot box.

This is not the case in a scenario where Indigenous groups make unilateral decisions that affect the broader public, since over 95 percent of British Columbians who are not Indigenous have no role in electing leaders of those communities. In fact, Indigenous people themselves have no ability to select the leaders of the 200-plus Indigenous communities in B.C. other than their own. When one combines non-Indigenous and Indigenous British Columbians from communities other than the one making a given decision, it is troubling to see a lack of an accountability relationship with about 99.9 percent of the population.

In this way, Indigenous and non-Indigenous British Columbians alike may increasingly find themselves subject to decisions made by leaders they cannot hold accountable. More concerningly, if we are to accept the premise of the Joffre Lakes closure, this may become the case across the vast majority of B.C.’s land area.

The Joffre Lakes closure was done on the basis of the park being within the Nations’ traditional territory, where title has been asserted but not proven, as former B.C. Deputy Minister of Energy and Aboriginal Law expert Robin Junger has pointed out. While Aboriginal rights are protected by the Constitution, this does not give Indigenous groups the right to act unilaterally without consideration of the public interest, especially in cases where title has not been established.

If the position of the Nations is that the assertion of title confers the right to prohibit access to public spaces, then it should be noted that 95 percent of B.C.’s land mass is claimed as unceded traditional territory by one or more of the province’s 200-plus Indigenous groups. If unilateral action is deemed an acceptable response to inevitable disagreements, it is fair to ask what would prevent such action not just in other parks, but in relation to any public (or even private) lands across B.C.  

Speaking on this issue, Indigenous lawyer Hugh Braker is quoted as saying: “I respect the right of First Nations to do in their traditional territory what they wish,” and “I think we should do more of that in British Columbia.” It goes without saying that over 200 groups arbitrarily doing “what they wish” on 95 percent of B.C.’s land, in the absence of any democratic relationship with over 99.9 percent of the affected public is a recipe for serious strife.

This can be further extrapolated to the natural resource sector, which is crucial to B.C.’s economy and thus significantly affects the broader population. The Declaration requires that states must work with Indigenous people to obtain their “free and informed consent prior to the approval of any project affecting their lands or territories and other resources.”

Again, meaningfully seeking input from Indigenous groups is entirely consistent with democratic principles and is already required by the courts. However, the requirement for Indigenous consent raises concerns, since reaching agreement will not always be possible.

If this standard had been applied, for example, to the Site C project, it would never have been built. It is not a stretch to see how scenarios like Joffre Lakes could set a precedent that decisions affecting the vast majority of B.C.’s land may be made by bodies with no democratic connection to those affected. The B.C. Minister of Mining’s comment that, when it comes to First Nations, “our approach to natural-resource development must be done in collaboration and partnership with the rightful owners of the land” suggests a wide interpretation of the concept of title that makes this scenario all the more likely.

B.C.’s original bill adopting the Declaration was passed unanimously in 2019, with all three parties in the legislature saying it would not in itself immediately affect existing laws but rather serve as a guiding framework according to which the law will be gradually re-defined. Despite the initial fanfare, it will be these less-exciting measures that will change the law itself, and careful attention must be paid to how that takes place.

The legitimacy of our governance system is founded on the democratic principle of popular rule: that “the people” are the authors of the rules that bind them, through an accountability relationship between governors and the governed. The Joffre Lakes situation is a warning that, no matter how well-intentioned reconciliation initiatives are, bypassing this simple principle cannot be justified.

Sean Speer: What the Trudeau government can learn from Stephen Harper about how to control spending

Commentary

Some voices have criticized the Trudeau government’s recent pledge to identify $15 billion in fiscal savings over the next five years as unserious and hypocritical after years of large-scale spending growth. They have a point: annual federal program spending has increased by 80 percent since it took office in 2015. 

Yet if one has been critical of the Trudeau government’s high spending record, then he or she ought to support at least in theory its nod to finding fiscal savings. It could be far worse after all. 

We don’t know much about the review at this stage. Treasury Board President Anita Anand has indicated that it will protect transfer payments to other orders of government as well as spending on Indigenous services and the Canadian Armed Forces. She’s also said that it will aim to minimize actual job losses by relying on attrition and redeployment. 

Her main emphasis though has been that the government’s review exercise won’t be like the Harper government’s spending review following the global financial crisis which she claims involved “short-sighted cuts that had to be reversed.” 

I may quibble with her characterization of those cuts (which I was personally involved in) but I agree that the Harper government’s post-recession spending review isn’t the right model for Minister Anand and the government to pursue. The goal of the aptly named “Deficit Reduction Action Plan” was to boost the government’s own efforts to constrain program spending in the name of eliminating the recession-induced deficit. It must be understood as having been principally about deficit reduction in the short term. 

That is far less relevant in the current context. The deficit is far too high and the Trudeau government’s savings target is too low to make much of a meaningful difference to the annual deficit. It’s mostly about offsetting the net costs of the government’s ongoing spending ambitions. 

A better comparison from the Harper era therefore is the government’s Strategic Review process which ran from 2007 to 2009 before it was suspended due to the global financial crisis. Strategic Reviews weren’t driven by deficit reduction goals. They were principally focused on controlling or limiting the growth of new spending by reallocating departmental spending from low- to high-priority initiatives. 

They are a good model for conducting regularized reviews of pre-existing government spending and weighing the usefulness of existing spending against the demands for new spending. Individual ministers were empowered to carry out such a prioritization exercise on behalf of their own departments. The process was generally evidence-based and rigorous. Minister Anand should restore it to implement the Trudeau government’s newfound commitment to rationalizing program spending. 

Under the Strategic Review model, roughly 25 percent of government spending was reviewed annually over a four-year cycle. Participating departments in a given year were identified in the early spring. They were given a spending base and 5 percent target from the Treasury Board Secretariat and required to conduct a self-evaluation of where they were expected to achieve these savings using of set of metrics including:

  • Increase efficiencies and effectiveness: Do these programs and services deliver real results for Canadians and provide value for money?
  • Focus on core roles: Are these programs and services aligned with the federal role or is another level of government or some other institution (such as the market or civil society) better placed to deliver them?
  • Meet the priorities of Canadians: Are these programs focused on the needs and priorities of Canadians? 

The results of these reviews were then presented to the Treasury Board Cabinet committee in the summer or fall in order to inform the budget process. Treasury Board Ministers were free to accept or reject the submissions of their colleagues but the overwhelming tendency was to accept them since individual ministers had full ownership of what spending cuts they ultimately put forward. 

But remember the goal wasn’t necessarily to reduce spending as much as it was about controlling or limiting the growth of new spending. So while departments were required to identify their “lowest-priority, lowest-performing 5 percent of spending” for reallocation, they were also permitted to put forward alternative spending proposals for reinvestment. 

The 2007 experience is illustrative. Seventeen federal organizations (including departments and agencies) participated that year representing $13.6 billion in direct program spending or roughly 15 percent of all government program spending that was examined under strategic review. (The overall share of federal spending represented by the participating departments and agencies was a bit lower that year because it was a new process.) All identified savings were recycled back into the same departments or related areas (see Table 1). Basically, the government was able to use the Strategic Review process to control the growth of new spending through fiscal recycling.

TABLE 1: FEDERAL STRATEGIC REVIEW PROCESS, 2007 ($MILLIONS)
Graphic credit: Janice Nelson

That the identified savings were “reinvested” mostly back into the departments created an incentive for ministers and their departments to buy into the exercise. They knew that their full participation would be rewarded by partially or fully funding their new priorities. 

The key point here is that the Harper government’s fiscal objectives were not, by and large, the sole purview of the prime minister, finance minister, or Treasury Board president. There was a sustained commitment by every minister to scrutinize his or her own spending and to prioritize any requests for new spending within the government’s broader agenda.

My past experience in the prime minister’s office and the minister of finance’s office is that such system-wide buy-in is crucial for such an exercise to ultimately be successful. A government may be able to impose fiscal constraints on itself through a combination of public pronouncements, legislative targets, or internal processes. But a system-wide commitment to limiting new spending requires dedication and focus from the Cabinet and even the governing caucus. It won’t happen if Minister Anand is pushing this agenda on her own. 

This is especially true for the Trudeau government in which ministers and their departments have been socialized to believe that there are no fiscal trade-offs because new and more resources can be taken for granted. Resetting such a spendthrift culture will require more than a top-down “weed-whacking” exercise that extracts some marginal savings but otherwise leaves internal expectations and norms firmly in place. The risk is that such an outcome is overwhelmed by new, incremental spending in subsequent budgets. 

What’s needed instead is a new bottom-up culture in which every minister believes that he or she is personally invested in the government’s fiscal management. Institutionalizing the Harper government’s Strategic Review model can help to rebuild such an internal culture in favour of fiscal priority-setting and overall budget discipline. 

If the Trudeau government is indeed serious about its newfound commitment to “sound economic and fiscal stewardship”, then it should be lauded for a much-needed course correction. One test of its seriousness is if it’s prepared to restore its predecessor’s strategic reviews.