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.