The honour of the Crown shouldn’t hamstring the government when negotiating with First Nations, according to one of Yukon Premier Darrell Pasloski’s top political advisors.
Yule Schmidt published a commentary in the National Post last week arguing that final agreements with First Nations were supposed to produce legal certainty, but have instead led to long-running court battles thanks to judges’ interpretation of what counts as meaningful consultation.
“The consequence of this decision has been to remove the “final” from Yukon’s Final Agreements, swapping agreed-upon legal provisions for a rather malleable concept of the Crown’s honour,” Schmidt wrote.
“In addition to the danger of judicial activism that this new approach unleashes, it undermines the very goal of land claims – to end government paternalism and achieve socio-economic equality for Yukon First Nations through a conclusive settlement of grievances,” the opinion piece reads.
Schmidt ends by asserting that “the courts have replaced the government’s paternalism with a form of their own. And its enshrinement in statutory law will make it particularly difficult to undo.
“As long as the honour of the Crown trumps the legal provisions of land claims, the Yukon government and its settled First Nations will continue disputing the meaning of their final agreements in court.”
A disclaimer at the bottom of the piece explains that Schmidt is a special advisor to the Yukon government, and that the piece represents only her opinion and not those of her employer. She declined a request to have the News reprint her commentary in full.
Even so, the existence and timing of the piece has the territory’s opposition leaders up in arms.
“This kind of thinking is an indicator of why we are dropping very fast in the Fraser Institute standings,” said Liberal Leader Sandy Silver. “When you see this stick-in-the-eye approach from the Pasloski government, it raises questions about how the government approaches its dealings with First Nations.”
Silver also questioned the timing of the piece, which was published just before the premier and some of his ministers attended the Prospectors and Developers Association of Canada conference in Toronto this week, hoping to promote Yukon’s mining sector.
Elaine Schiman, a spokeswoman for the premier, said he was unavailable for an interview because of his busy schedule at the mining conference, but insisted that the piece was not approved by the cabinet office and the Yukon government does not share Schmidt’s opinion.
But Schmidt’s contention is the issue at the heart of a lawsuit soon to be fought over the government’s handling of the Peel watershed land use planning process. Two affected First Nations have filed a suit, arguing the government did not negotiate fairly with them when it threw out the Peel planning commission’s final recommended plan in favour of one it created itself.
The government, meanwhile, maintains that it has lived up to its legal responsibilities.
“If this was not approved by the premier’s office, the question remains, does the premier share the views of one of his top political advisors?” Silver asked.
Schiman would not say what the government’s position on the honour of the Crown is, only that the government supports final agreements and sees them as beneficial to both First Nations and the government.
NDP Leader Liz Hanson also had questions of her own.
“Does this signify an opening up of this government to allowing people in their employ to speak their mind without censure? I would hope that we would see a similar freeing of people who, for example, work for the Department of Education,” Hanson said.
Last year the government issued an order barring Education employees from commenting publicly without first getting approval from the department’s communications branch.
“To my knowledge, that gag order has never been rescinded. We have seen public servants who are essentially fearful to talk on anything not even related to their line of work, but if they work for the Yukon government they are afraid. If this is a sign of a new opening for the government, then we’ll look forward to them tabling the whistleblower legislation this spring. Wouldn’t that be nice?” Hanson asked.
Schmidt is a contributor to Troy Media and the conservative blog C2C Journal, where her name appears alongside well-known political pundits like David Frum, Preston Manning and Tom Flanagan. She has written about subjects ranging from sexual harassment in the RCMP, to the civil war in Syria and democracy in Egypt.
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