The Power of Perspectives

The Canadian Bar Association

Doug Beazley

First Nations

Rights of Indigenous peoples: How far will Ottawa go?

By Doug Beazley December 7, 2015 7 December 2015

Rights of Indigenous peoples: How far will Ottawa go?

Every incoming government brings with it a list of housekeeping items to check off when it takes power — which, in the case of the Trudeau Liberals, often means saying ‘yes’ to things the Harper Conservatives rejected.

Canada was one of a handful of nations that refused to sign on to the United Nations Declaration on the Rights of Indigenous Peoples back in 2007. It softened its position somewhat with a statement of support for UNDRIP in 2010, while making it clear that it didn’t see that support effecting any changes to Canadian law. Now, the new government has committed to “implementing” UNDRIP — although it’s not at all obvious what that means.

What was the Conservative government of the day worried about? Article 32 of UNDRIP commits states to obtaining the “free and informed consent” of aboriginal peoples before green-lighting any projects affecting “their lands or territories.” That language raises a few questions. Aboriginal title to traditional lands isn’t established consistently throughout Canada. And while the Supreme Court of Canada has stated the Crown has a “duty to consult” aboriginal communities on any project that might affect land they claim, that word “consent” in UNDRIP seems to many to imply an aboriginal veto — something the SCC has said does not exist in Canadian law.

“If the government implements UNDRIP it has no recourse to the legal power the SCC says it has,” says former Harper advisor Tom Flanagan, who recently penned an article on UNDRIP for the Globe and Mail.

“As written, UNDRIP is just not something Canada could implement,” says Tom Isaac, the Calgary-based head of the aboriginal law practice at Osler, Hoskin & Harcourt LLP. “UNDRIP does not constitute a veto but it does talk about ‘consent’. So it’s something of a semantic game, but whether it’s a veto or consent, it has the same net effect. And giving 600-plus groups a veto over developments would be a fundamental shift in how we govern ourselves.”

Others suggest UNDRIP’s critics are taking a Chicken Little approach to a document that doesn’t really move the dial very far on aboriginal rights in Canada.

Read More

Charitable intent: navigating the murky waters of terrorist financing

By Doug Beazley July 22, 2015 22 July 2015

Charitable intent: navigating the murky waters of terrorist financing

If the first casualty of war is truth, the second is altruism. In its rush to strengthen the legal bulwarks against terrorism in the years since 9/11, the federal government may have lost sight of one of the more powerful tools in the hearts-and-minds arsenal: charity.

Consider this scenario: You’re running an aid group that provides disaster relief. Your work involves delivering medical supplies to a conflict zone where terrorist cells are active. A clinic uses drugs supplied by your group to treat someone for gunshot wounds who turns out to be a terrorist. 

Technically, you’ve just committed a crime that could put you in prison — or at least put you out of the giving business for good. Section 83.19 of the Criminal Code makes it an offence to “knowingly” facilitate terrorist activity. But the mens rea element covered by the word “knowingly” is made almost meaningless by subsection 83.19(2) — which says that a terrorist activity is “facilitated” regardless of whether you knew that a terrorist activity was being facilitated, whether any terrorist activity was forseen or planned, or whether any terrorist activity was carried out.

Read More
Legalization

The business of pot

By Doug Beazley March 3, 2015 3 March 2015

The business of pot

Once there was a federal government with a drug problem. Publicly, it was fighting a war on drugs. Privately, it knew it was losing both the war and the argument.

A government commission recommended that the drug be decriminalized for recreational use. And tobacco companies — anxious to co-opt what they saw as a threat to their core market — began exploring the idea of getting into legal weed.

“The only real threat to our business is that society will find other means of satisfying those needs,” read one confidential memo from an unnamed tobacco industry executive.

The government in question was Richard Nixon’s administration; he ignored the 1972 presidential commission’s recommendation and opted to keep marijuana illegal. But the parallels between where the American drug conversation was 43 years ago and where Canada’s is right now are striking.

Read More
Article

Out from the dark

By Doug Beazley August 6, 2014 6 August 2014

Out from the dark

Read More
Article

Whose duty to consult?

By Doug Beazley March 5, 2014 5 March 2014

Whose duty to consult?

Read More