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Since former Justice minister and attorney general Jody Wilson-Raybould’s dramatic testimony before a committee of the House of Commons, followed by the testimony of Gerald Butts and Michael Wernick, much attention has been paid to SNC-Lavalin and the questionable behaviour of Prime Minister Justin Trudeau.
Mostly missed were the last words of Privy Council clerk Michael Wernick’s prepared opening statement to the same Justice committee.
Wernick said: “… the committee may wish to hold hearings on the attorney general of Canada’s directive on civil litigation involving Indigenous peoples issued by the former attorney general on Jan. 11, 2019. The directive to all government of Canada litigators could mark a profound change in Canada’s legal landscape. However, it could be rescinded or repealed at the stroke of a pen and turn to ashes. All political parties need to be clear with Canadians on the future of this directive.”
Wernick discreetly warned Canadians that Wilson-Raybould’s reminder – given to Justice Department staff on her way out of cabinet – if followed, would profoundly affect Canada.
The directive, in effect since Wilson-Raybould took the reins of Justice upon the Liberal win in the 2015 federal election, has already done great damage.
Wilson-Raybould’s instruction requires Justice Department lawyers not to aggressively fight claims brought by Indigenous groups against the federal government. By her directive, she shows where her first loyalties lie – not to Canada but to the quasi-separatist agenda of the Assembly of First Nations (AFN).
Justice Department lawyers are to treat any claim by an Indigenous group – no matter how ambitious it might be – as valid. Instead of actively opposing claims, thereby ensuring only legitimate claims are successful, department lawyers must consider progress toward the Liberal government’s goal of promoting reconciliation as the desired result. That is, if an Indigenous group should be successful in getting a taxpayer-funded award, the government’s assumption is that reconciliation has been achieved.
The directive plays fast and loose with the Canadian taxpayer, and that’s a complete departure from the careful management of government finances that taxpayers expect. It’s also a complete departure from normal rules of litigation. Canada employs an adversarial system, wherein opposing claims make their cases and a supposedly impartial judge decides which claim has merit. By Wilson-Raybould’s directive, that system is completely undermined.
As long as the directive remains operative, government lawyers confronting an Indigenous claim are forced to fight like a boxer sent into the ring with one arm tied behind their back. Indigenous groups get to use both arms.
Wernick’s surprising disclosure raises immediate concern with respect to the recent Restoule treaties annuities case in Ontario. That case ended in a decision that will, if not upset on appeal, eventually cost taxpayers billions of dollars.
Justice Department lawyers are not to appeal a court decision even if they think that an appeal would be successful, if they conclude that an appeal might interfere with the pursuit of reconciliation. In the Restoule case, the federal government chose not to appeal, leaving the Ontario government alone (on behalf of the beleaguered taxpayer). The federal government simply gave up.
The ongoing obsession with reconciliation is one-sided. It seems that in Wilson-Raybould’s view, only outcomes that financially benefit Indigenous groups are acceptable.
Her direction to federal lawyers is certainly not working out for taxpayers in the area of resource development. Stalled pipelines, mining companies moving south, and huge job losses in the oil and gas industry are all related to the duty to consult and accommodate.
Indigenous groups had the former Justice minister in their pocket, making it impossible for a development company and taxpayers to get an even break.
Wilson-Raybould’s directive is still profoundly destabilizing the country.
Unless the directive is rescinded, the 1.5 per cent of the population that represents status Indians living on reserves will gain de facto control of Canadian resource development. As well, simple property ownership as we know it may come to an end. All property could be subject to claims of ancient ownership.
Wernick provided surprising help to taxpayers by making this subversion of justice known. That he raised it at the conclusion of his prepared remarks – and ahead of his very surprising retirement – underscores how profoundly important this issue is.
We should listen.
Brian Giesbrecht is a retired judge, now a senior fellow at the Frontier Centre for Public Policy.
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