Canada is currently gripped by three proposed laws whose lack of clarity will cause confusion and division, but which are being pushed through precisely because their vagueness is seen as a feature, and not a bug, by the politicians behind them.
Bills C-10 and C-15 in Ottawa, and Bill 96 in Quebec, have been presented in such a fashion that their implications are entirely in the eye of the beholder.
That’s great for politicians: They can say one thing to one stakeholder, and the complete opposite to another. But it’s a terrible way to run a country.
Take C-15, the federal bill to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Already through third reading, the bill will require that all existing and future federal legislation be consistent with UNDRIP.
Doing so is bound to create tension. Article 28 of UNDRIP says development cannot occur on traditional Indigenous lands without the “free, prior and informed consent” of Indigenous communities – wording that suggests an Indigenous veto over natural-resource projects.
The Trudeau government insists that “free, prior and informed consent” (FPIC) does not create a veto, but it won’t explain how that is. It won’t even tell Canadians how FPIC will work, or how it will jibe with existing jurisprudence that requires governments and companies to negotiate, to mitigate and to compensate in good faith if a proposed project crosses traditional Indigenous territory, but does not require unanimous consent.
This lack of clarity allows the Liberals to boast that it is implementing a potent symbol of Indigenous rights, while leaving it room to reassure industry that the bill won’t change a thing.
Bill C-10 exists in a similar grey area. The overbroad wording in a Liberal law to bring internet companies such as Google and Netflix into the same regulatory regime that governs traditional broadcasters has sparked heated debate about the extent to which the Canadian Radio-television and Telecommunications Commission (CRTC) will control the content Canadians see and post online.
The Trudeau government insists the bill won’t give the CRTC control over what individual Canadians post on the internet. But a lack of guidance about how the law will be interpreted by the CTRC has critics rightly concerned.
The Liberals could add clauses to Bill C-10 that state in black and white what is being targeted and what isn’t. But that would be detrimental to the political purpose of the law – letting the Trudeau government portray itself as the great defender of Canadian creators without having to explain how the law will play out.
Quebec’s Bill 96 is yet another masterpiece of deliberate opacity. Most of it is a further tightening of the use of English in the province, but it also adds two clauses to the Constitution: “Quebecers form a nation” and “French shall be the only official language of Quebec. It is also the common language of the Quebec nation.”
The words would be inserted unilaterally by Quebec, under a clause in the 1982 Constitution Act that allows provinces to amend, without the consent of Parliament, those parts of the Constitution that affect only them.
To the rest of Canada, Premier François Legault has portrayed Bill 96 as a symbolic gesture that would “unite Quebeckers and increase their collective pride.” Prime Minister Justin Trudeau has said he supports Quebec’s right to unilaterally amend the Constitution on those grounds.
But in Quebec, Mr. Legault is selling the proposed change as a strengthening of Quebec’s control over language. “It’s not only symbolic,” he said this week.
So which is it? Canadians can’t know, because Mr. Legault is talking out of both sides of his mouth, and Mr. Trudeau isn’t interested in getting into a constitutional debate with Quebec in an election year.
The governments that tabled all three of these bills have no idea how they will be greeted by courts or regulators, because their deliberately vague purposes leave them wide open to interpretation.
All that the politicians know or care about is that their bills are beneficial to their interests right now, and that the division and anger they are almost certain to generate will be someone else’s problem down the road.
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