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Consultatio post facto

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Rob Shaw: The NDP has adopted a bad habit of going through the motions of consulting, only to plow ahead regardless of objection or concern.

It was only a couple of years ago that Premier John Horgan and his government promised a new relationship of collaboration and consultation with First Nations under the United Nations Declaration of the Rights of Indigenous Peoples, or UNDRIP.

“We are using the Declaration of the Rights of Indigenous Peoples to guide us to ensure that reconciliation is lasting,” Horgan said in 2019, at the Assembly of First Nations in Ottawa, shortly after an emotional ceremony in the legislature on passing UNDRIP into law.

“Reconciliation is not just words, reconciliation is action.”

It was an important and worthy goal.

But on everyday government files, keeping collaborative relationships with First Nations leaders has been a challenge – especially with ministers who’d prefer not to have to engage with any criticism whatsoever.

Case in point, two scathing letters from Indigenous leaders this past week that accused government of completely failing to honour UNDRIP on two key reforms.

The first was from the First Nations Leadership Council (which represents three of BC’s largest First Nations organizations) criticizing government’s proposal to eliminate individualized funding for kids with autism and replace it with a new community hub model.

Collaborative relationships with First Nations leaders has been a challenge – especially with ministers who’d prefer not to have to engage with any criticism whatsoever.

The council correctly pointed out that UNDRIP calls for “particular attention” paid by governments to changes that impact Indigenous children with disabilities, and then noted the BC government had failed to consult on the change and failed to listen to repeated concerns from First Nations leaders.

“First Nations feel vulnerable to having child protection reports and removals of children whenever they attend one of your offices or ‘hubs,’” read the letter.

“It is bewildering to us that in 2021, given the understanding of how the legacy of residential schools continues through the MCFD disproportionality taking our children into care, you could dream up any proposal that involves increasing the role and responsibility of MCFD to coordinate and deliver services.”

The letter, addressed to Minister of Children & Family Development Mitzi Dean, said the change will re-traumatize Indigenous families. It was written around the same time as a protest at the legislature from angry and concerned families of children with autism.

“Suffice it to say, not only is the hub model proposal potentially racist and discriminatory, it has been developed and advanced in violation of the Declaration of the Rights of Indigenous Peoples Act,” the First Nations governance bodies wrote.

All signs are that the government intends to charge through the mounting criticism.

“We request that you stop advancing the ‘hub’ model immediately.”

Dean told the legislature that First Nations youth are underserved in the current system and that she met with the First Nations Leadership Council a few days later to “start” the conversation in a manner consistent with UNDRIP.

But as the council wrote in its own letter, consultation after announcing a change is not consultation at all.

“Inviting us to your town halls, after you have made your unilateral decision – a decision that is inconsistent with the UN Declaration and not based on any UN Declaration analysis – demonstrated how disastrously off-course your approach is,” read the letter.

All signs are that the government intends to charge through the mounting criticism from parents, families, service providers, the autistic community and now First Nations leaders, to implement the change anyway – UNDRIP and reconciliation efforts be damned.

The next letter to land was from the Union of BC Indian Chiefs, who wrote to Horgan and Citizens’ Services Minister Lisa Beare to demand they withdraw the Freedom of Information Bill that proposes to add $25 application fees to each FOI request, exempt certain types of data from public records and allow public bodies to store sensitive information outside of Canada so they can access more modern cloud computing services.

“The bill in its current form fails to uphold First Nations’ unique rights of access to information as many of the proposed amendments will create new barriers for First Nations requiring access to provincial government records to substantiate their historical grievances against the Crown,” read the letter.

“Further, several proposed amendments disregard significant concerns we identified in formal submissions to the public engagement process, and introduce measures about which we were never informed, contravening Article 19 of the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration), and your government’s legal obligations under the Declaration on the Rights of Indigenous Peoples Act (DRIPA).”

First Nations are frequent users of FOI to gather historical records for things like land claims and negotiating on a government to government basis with the province.

While journalists, academics, and others are upset at the idea of new fees, to Indigenous leaders it is an additional slap in the face to charge them for every application required to access their history – and it also impacts their ability to address historical justice issues, which is enshrined in the UNDRIP law.

“Your characterization of the new fee as ‘modest’ displays astounding ignorance and insensitivity since legal processes of redress for historical losses require First Nations to make multiple formal requests for records from various public bodies in order to obtain evidence,” read the letter.

“It is nonsensical that a government publicly committed to reconciliation, transparency, and accountability would impose further financial hardships on First Nations who require access to provincial government records to substantiate claims of government wrongdoing.”

Beare has barely been able to mount cogent explanations for the basic criticism of her bill, let alone with the added layer of UNDRIP.

“Our government values reconciliation and I thank the Union of BC Indian Chiefs for their important input that they provided in this letter,” she said, when questioned about it in the legislature Thursday.

“We have been consulting meaningfully on this legislation since 2018.”

Which is only partly true, because those three years had almost no consultation about $25 application fees, which is a hallmark of the bill.

Beare has barely been able to mount cogent explanations for the basic criticism of her bill, let alone with the added layer of UNDRIP.

First Nations leaders might be expecting their letters to give the current BC NDP government pause. After all, it promised to consult and consider Indigenous issues as part of every bit of future legislation. Unfortunately for them, that process appears to have become a box-checking exercise in which the province engages in meaningless early “consultation” on an idea with First Nations, ignores their concerns and then plows forward to do what it wanted anyway while retroactively claiming the dialogue was “substantive.”

Such is the government’s prerogative, with a majority. It has the votes to do anything it wants at the legislature. But on Indigenous relations, and UNDRIP, it promised to do better. Here are at least two examples of where it clearly failed.

Rob Shaw has spent more than 13 years covering BC politics, now reporting for CHEK News and writing for The Orca. He is the co-author of the national best-selling book A Matter of Confidence, and a regular guest on CBC Radio.

rob@robshawnews.com

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