Was Devolution Illegal?

Dene National Chief Bill Erasmus is calling for a full review of the 2014 legislation behind NWT devolution, but on what grounds?

Erasmus kicked off the annual assembly of Dene chiefs this week with another of his regular speeches targeting Canada and the territorial government over treaties, title and duty to consult, this time calling out NWT devolution as “illegal.”

“There was a suite of legislation and there were other pieces of legislation which we feel is illegal because it was imposed on us, we were not involved in designing it, and the whole incentive is not to recognize our governments but only Canada,” Erasmus said, according to CBC.

“So it’s really not a legal piece of legislation. And we’re encouraging Canada to include it in its review.”

The Liberal pledge to right the wrongs of the contentious Harper administration, particularly as they concern Indigenous nations, seems to be a motivating factor behind Erasmus’ demand

While the request for a full review of the 2014 federal NWT Devolution Act by federal Justice Minister Jody Raybould-Wilson is new, the sentiment behind the statement is not.

The transfer of authority over land, water and resources was a hotly contested matter for most Indigenous governments during the years of consultation and negotiation leading up to its final approval, with some briefly initiating lawsuits to prevent the process going forward.

Though the majority eventually signed on to the deal, First Nations without settled land claims in the Akaitcho and Dehcho regions have remained stalwart in their refusal to give written consent to the agreement, arguing that Canada had a duty to negotiate a land deal with Indigenous governments first.

Considering the Dehcho and Akaitcho have been trying to negotiate a land claim with Canada and the NWT for over two decades — a process that was put on hold for several years in order to conclude devolution — it’s hard to argue with that standpoint.

But is it illegal?

Calling devolution — an agreement put together and reviewed by legal experts and justice departments over several years — “illegal” seems to be nothing more than political posturing, initially. After all, Dene National Assemblies regularly call into question the legitimacy of the territorial government, largely to little effect.

But if you read more deeply into Erasmus’ comments on how devolution was implemented (or imposed, as he argues), there are certainly legal arguments to be made.

Problems have clearly arisen from the last-minute omnibus nature of the devolution bill, which lumped together the largely O.K.’d transfer agreement with another bill that would force unpopular changes to the NWT’s regulatory structure.

While many First Nations, like the Tlicho Government, had signed on to devolution, suddenly being required to support the amalgamation of Indigenous-run regional land and water boards into a “superboard” without their nations’ consent trapped them in an uncomfortable position. (Former NWT MP Dennis Bevington attempted to amend the legislation in light of chiefs’ concerns, but was unsuccessful).

The Tlicho have since taken the federal government to court over the superboard legislation, and the NWT Supreme Court granted them an injunction in March 2015, delaying the launch of the new superboard.

The injunction, which protects the Tlicho’s Wek’eezhii Land and Water Board along with similar boards in the Gwich’in and Sahtu regions, will remain in place until the court can hear and rule on the Tlicho’s legal argument that the superboard violates the Tlicho self-government agreement and land claim.

Though Canada initially appealed the decision, the new Liberal government paused the appeal in December.

The new government’s pledge to right the wrongs of the contentious Harper administration, particularly as they concern Indigenous nations, seems to be a motivating factor behind Erasmus’ demand for the full review of the entire devolution legislation.

But just how far that review would go — if at all — in reversing a decision like devolution is hard to determine. There are not many doors left open.

Consult, or consent?

Erasmus’ argument seems to hinge on a failed duty to consult. In actuality, it is likely more deeply rooted in the sought-after right to free, prior and informed consent on the part of Indigenous peoples when it comes to matters that affect their lands.

Canada recently adopted and agreed to “fully, and without qualification” implement the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which includes the right of communities to free, prior and informed consent.

At the time of that announcement, made at the UN headquarters in New York in May, federal Indigenous and Northern Affairs Minister Carolyn Bennett said, “We are fully adopting [UNDRIP] and working to implement it within the laws of Canada,” while adding that the right to free, prior and informed consent is already supported by section 35 of the Canadian Constitution.

“We are breathing life into section 35,” she said.

But earlier this month, Raybould-Wilson told leaders of the Assembly of First Nations that a cut-and-paste adoption of UNDRIP into Canadian law would be “unworkable” and a “political distraction to undertaking the hard work actually required to implement it back home in communities.”

Instead, the government has committed to negotiating modern treaties (i.e. land claims and self-government agreements) under new mandates, and negotiating other types of deals that would allow for Indigenous decision-making, regardless if nations were signatories to historic treaties or not.

That new mandate has included the appointment of a Ministerial Special Representative to facilitate the successful conclusion of the Dehcho land claim negotiations, addressing the more contentious outstanding issues of land quantum, access and regulatory regimes.

Without the right to free, prior and informed consent having a stated role in Canadian law as a part of the duty to consult, it’s unlikely that anything could retroactively be found to be illegal about the devolution agreement itself, which surely satisfied the bare minimum of section 35 consultation laws.

Even if a review determined that the Harper administration had acted without the “honour of the Crown” in its implementation of devolution — something that would be hard to prove, considering the number of Indigenous signatories to the bill, and would be up to a court to decide — reversing a long-contemplated and negotiated political move like devolution seems unlikely.

What First Nations in the NWT are more likely to look forward to, instead, is the possibility of keeping their regional land and water boards, and for the Dehcho and Akaitcho to see better outcomes from their land claim negotiations than their counterparts who settled through the infamous “termination tables” of Stephen Harper’s government.

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