Jim Prentice on First Nations consultations—and a broader point

There’s some intriguing news and commentary today on yesterday’s sharp remarks from Jim Prentice—the former federal cabinet heavyweight, now CIBC financial executive—on how the Conservative government has failed to properly engage First Nations on Enbridge’s Northern Gateway pipeline.

Prentice knows the file. He served successive stints as Stephen Harper’s industry, Indian affairs and environment minister, before jumping to the bank early last year. He’s pro-pipeline but pragmatic on the fact that earlier court rulings require Ottawa to properly consult First Nations on resource development in their traditional territory.

His point that the government has simply failed to properly take that legal obligation into account makes me think of a broader pattern. In a series of key court decisions, the Harper approach seems to be to bull ahead with controversial policies, and just hope that judges don’t rule against them.

Sometimes this tension is cast as a matter of “judicial activism”—the notion that courts are inclined to overstep their proper bounds and elbow their way into decision-making that’s properly the sphere of election politicians. But it’s hard to see that dynamic in some key cases. The judges don’t object to the policy, they’re just applying the law.

For instance, when the Supreme Court of Canada rejected Finance Minister Jim Flaherty’s bid to create a national securities regulator last year, the ruling made it clear the judges saw nothing wrong with the policy goal. The problem was a violation of the provinces’ clear constitutional jurisdiction over property and contract matters.

Why didn’t the federal government see that one coming? At least some lawyers working for the provinces seemed to anticipate the decision quite confidently. Similarly, many lawyers anticipated successful constitutional challenges to various elements of the Tories’ law-and-order legislation. On the federal bid to shut down Insite, Vancouver’s pioneering supervised injection facility for drug addicts, the Supreme Court’s controversial decision also appears to have been anticipated by smart lawyers.

In at least some of these cases, the government looks to have been unwilling to calmly consider the strong possibility that what they wanted to do, the way they wanted to do it,  just wouldn’t survive a court challenge. As Prentice points out in the case of the need to consult First Nations—even if that seems inconvenient—it isn’t good economic strategy to ignore the legal framework into which policy must be fit.

Pushing ahead and praying the courts don’t rule against you might seem resolute, but all it results in is delay and confusion.

 




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Jim Prentice on First Nations consultations—and a broader point

  1. Harper is the first PM since Clark to have no legal training (I’m not sure how far back it goes before that but I think it’s a pretty long time), and he’s a proponent of the “Calgary School” which is legally bunk. He’s at a disadvantage on legal files, and all his academic life he’s been told judges are “activists” improperly exercising authority. It would be interesting to know his personal reaction when he’s advised on the legal aspect of matters when the law doesn’t jibe with policy he’d like to implement.

    • Bingo! You only have to look at a couple of his assertions about how the electoral system works or the constitution to see that. I used to think it was because he was just being strategic to gin up his base and stick it to liberal elites – maybe he still is[ that is after all is his one true genuine strength as a politician] – now i’ more inclined, with the weight of evidence, to think he’s just ignorant and too arrogant to seek the opinion of someone who knows better – like Prentice for instance.

    • Let me see… …that’s 27 years, if you’re right… …How’d they elect him if it’s that unpopular?

      • I’m not sure it’s unpopular, but of all the people to hold the office of chief law-maker almost all of them have been law-yers.

    • At least Clark had a lawyer (Maureen McTeer) in the family.

  2. I think it might part of Harper’s plan: after all their ideology stipulates that courts are all biased so having the courts repudiate some of their most ridiculous (national commodities regular), short sighted (tough on crime) and moral high ground (insite) decisions only helps galvanize the conservative base and reinforce their notion that it’s them versus the world.
    Seems a bit disingeneous and I really hope I’m just thinking about it too much… I have a hard time believing that the people in government can be such complete idiots however.

    • I agree Olivier. Even the recent Motion 312 – indirectly about abortion, was a strategic way for Harper to show his constituents that the majority of his party (53%) was Pro-Life; the rest “not wanting to open the debate”. He tried to demonstrate here that he was worth supporting by his right-wing base, as well as receiving kudos by others for “sticking to his election promises”.
      The guy is CONniving alright.

      • Not only that, but he tried to demonstrate that he doesn’t really have the control of his MPs (which is a farce).

  3. The Northern Gateway is not new. Enbridge was planning the pipeline during Prentice’s tenure in Industry, Aboriginal Affairs, and Environment.

    Isn’t the failure he is talking about really his own also?

    • Arguably not. Didn’t Harper do an abrupt sea change when keystone fell in a crevasse? Overnight they pushed to fast track changes to the environmental regime, muzzle and defund scientists, demonize enviro orgs and claim pipelines to be a matter of overriding national interest – too important for mere joint review boards to rule against. What are the timelines really? You can almost see the oil lobby pulling Harper’s little strings, right on cue
      Maybe Prentice was sandbagged too? Maybe he left for more than a good job at the bank? Maybe he saw the writing on the wall?

    • Is it possible Prentice tried to make this point while in Cabinet and got ignored, and is getting back at the old boss by brining it up in his high-profile and relevant private position now?

      Your first reaction is always to look for hypocricy.

      • It’s even possible that prentice fully expected the proper negotiations to take place at some future date, and when that date DID arrive he was no longer in charge.

  4. Please tell me the Harperites aren’t obtaining all their philisophical oxygen from a myopic flake, a nostalgist like Ferguson?

  5. A Message for Stephen Harper:

    C’mon, Harper! The First Nations exist, give them some choice! Stop saying that Alberta is all that matters. Quebec exists! The First Nations exist! Be fair, or no Canadian will vote for you in 2015.

    • It’s been said that about half the people who vote a certain way do so because that’s the way their parents did, or the way they always did, or some other such thing. They’re not interested in politics, or the issues, they vote because they feel they have an obligation to. Now that tends to split across party lines without much prejudice, so that’s about 17% of the vote right there. In addition to that, there’s another 10% or so of people who will vote against the Liberals and NDP come hell or high water, just because they were raised on McCarthy’s ideals or had Lougheed drilling into their heads that the NEP was what was wrong with Alberta, not our single-industry model. With only one significant federal party to the right of the Liberals, that means all that support tends to coalesce around the CPC.. So right there you’ve got some 27% of the vote locked in.

      That’s enough to make the CPC the official opposition even if every thinking voter votes elsewhere. We’re not going to see another Mulroney-Clark decimation of the party until either another party on the right rises up — and you can bet that those in favor of the CPC remember the reform years too much to allow that to happen for another decade or so — or until either the Liberals or the NDP disappear.

    • My mother is aboriginal but according to Stephen Harper and his conservative government, I am not aboriginal because my grandmother was not born a man. Yes Canada, wake up discrimination is rampant in the Indian Act! It’s more important to build an oil line than to rightfully acknowledge ones heritage. The conservitives will find a loop hole like they did with Bill C-3 changes to the indian act. After being unsuccessful in their appeal to the BC Court of Appeals, the conservitives narowed the scope so that hardly anyone would benefit. While opositional parties apposed proceeding with the bill due to the narrow scope, the conservatives sold the country on “exploratory” sessions which there doesn’t seem to be any info on. What a great way to delay doing anything. The only exploring the conservative governement seems to be interested in is exploring black gold. I guess my skin is the wrong color!!!!

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