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RANDY BOSWELL: Did Indigenous issues influence Wilson-Raybould affair?

Jody Wilson-Raybould (in black and red), Jane Philpott (to the right of Wilson-Raybould) with Justin Trudeau in foreground - Patrick Doyle/Reuters

After two months of startling twists and turns in the SNC-Lavalin affair, a piece of the puzzle still seemed to be missing for those trying to comprehend the “broken trust” said to have enveloped the principal players in this drama: ex-justice minister Jody Wilson-Raybould and Prime Minister Justin Trudeau.

But recently we have had fresh revelations about a federal cabinet power struggle involving Wilson-Raybould last summer and fall — “a jurisdictional battle that she eventually lost,” according to the Globe and Mail — over the Liberal government’s stalled plan to radically transform Crown-Indigenous relations in Canada.

The winner of that struggle to steer the planned implementation of a landmark Indigenous rights framework was Crown-Indigenous Relations Minister Carolyn Bennett, the Globe reported following an interview with Wilson-Raybould.

Despite Wilson-Raybould’s acknowledged attempt last August to take the reins of the initiative, Bennett was confirmed by Trudeau as the government’s lead minister on its strategy to reset the federal relationship with First Nations, Inuit and Métis.

Bennett preferred a go-slow approach driven by widespread consultations with Indigenous groups, among which no clear consensus seemed to be emerging about the ideal pace or scope of change. So the plan to release a sweeping framework for reform by the end of 2018 was quietly shelved last September in favour of piecemeal legislation.

Wilson-Raybould — who spent much of her career as a B.C. regional chief fighting for Indigenous rights and creating a massive blueprint for their implementation — had advocated a bolder, more urgent push from the government to place that vision at the heart of all dealings between federal departments and Canada’s Indigenous Peoples.

“We must be audacious,” she told a gathering of B.C. politicians and Indigenous leaders on Nov. 29, some weeks after Trudeau and Bennett had chosen a less audacious path to reform. “We must do what is right. And not look for a compromise between what is right and what is not …”

In the same speech about the need to move quickly to establish “true Nation-to-Nation relationships” in Canada, Wilson-Raybould stated: “Within government, when discussing matters of Indigenous rights, one still often finds a seemingly disproportionate focus on risk — speculation that the sky might fall — and an emphasis on the most severe, yet very remote, potential outcomes.”

Those are the words of an ardent reformer frustrated by the timidity of her own government colleagues. However, there was one area under Wilson-Raybould’s authority as attorney general where a “rights recognition” approach rather than the traditional “denial of rights” posture of the federal government could be implemented more immediately. On Jan. 11 this year — a few days after Wilson-Raybould had been told she would be shuffled out of the Justice portfolio and a few days before she moved to Veterans Affairs — she issued a historic, 11th-hour ministerial directive to federal lawyers to end their generations-old “adversarial” approach to civil litigation with Indigenous Peoples in favour of a more collaborative, negotiated, out-of-court search for solutions to such legal battles.

The standoff, it’s now clear, was between  (Carolyn) Bennett and Wilson-Raybould.

It was proof, according to Wilson-Raybould’s office, that the government “is committed to fundamentally transforming its relationship with Indigenous peoples based on the recognition of rights …”

Close observers of the SNC-Lavalin affair will know that on the various occasions last fall when Wilson-Raybould discussed (and repeatedly rejected) the idea of a possible remediation agreement for the company, the primary topic of those conversations with Trudeau or his acolytes was often the Indigenous rights framework or the civil litigation directive.

As Trudeau himself noted (at a March 7 press conference) about his key Sept. 17 meeting with Wilson-Raybould: “We talked a lot more about reconciliation and recognition of Indigenous rights for Indigenous peoples than we did about SNC-Lavalin. That meeting lasted 30 or 45 minutes, and during it we spent about five minutes on SNC-Lavalin, and 40 minutes on reconciliation.” In his first round of testimony to the Commons justice committee in February, the soon-to-be-ex-Privy Council clerk Michael Wernick elaborated on that Sept. 17 conversation. Trudeau and Wilson-Raybould, he said, were talking about the Indigenous rights framework because it was “losing momentum and traction,” and that “there was something of a policy standoff among his ministers,” which had grown so severe it required “a form of conciliation or mediation, to bring people together.”

The standoff, it’s now clear, was between Bennett and Wilson-Raybould.

During his second round of testimony in early March, Wernick urged the justice committee to closely study Wilson-Raybould’s civil litigation directive. It “could mark a profound change in Canada’s legal landscape,” he stated, while adding that the measure could also be “repealed or gutted at the stroke of a pen and turn to ashes. All political parties now need to be clear with Canadians on the future of this directive.”

It’s hard to know exactly why Wernick so pointedly invited all-party scrutiny of the directive, but it sounded a lot like there was still divided opinion within Liberal ranks and the public service about Wilson-Raybould’s last act as attorney general.

To be clear: The news about the lost power struggle over the Indigenous rights file doesn’t diminish the importance of Wilson-Raybould’s laudable stance in defence of judicial independence in the SNC-Lavalin debacle. It doesn’t excuse the ham-fisted and arguably improper attempts by Trudeau and his PMO and PCO delegates to pressure Wilson-Raybould over the prosecution of the Quebec-based engineering firm on bribery and corruption charges.

And it’s even fair to argue that the cabinet conflict over Indigenous rights is irrelevant to the most pressing issues emerging from the present scandal: protecting the judicial process from political interference; rethinking the conflicted role of the attorney general; reviewing the entire rationale behind deferred prosecution agreements; probing the moral character of the Trudeau government.

Nevertheless, it now seems likely that a fundamental fissure within Trudeau’s cabinet over a policy pillar of his government — remember the prime minister’s oft-repeated declaration about federal-Indigenous relations being the “most important relationship” in Canada today? — helps explain the “erosion of trust” that Trudeau insists is behind the SNC-Lavalin controversy, and which Wilson-Raybould’s actions and statements throughout the affair have made amply evident. Thwarted in her bid for leadership on an issue central to her mission in public life, and clearly exasperated with her government’s ebbing will to bring transformative change to Indigenous Canada, Wilson-Raybould suddenly faced a new source of aggravation.

Trudeau and a parade of bumbling deputies began pressing her — a whip-smart lawyer ultra-attuned to the principle of prosecutorial independence and the unique role of the attorney general — to find some way to justify a remediation agreement with SNC-Lavalin and avert a bribery and corruption trial.

The idea that Wilson-Raybould should have or could have been more flexible in considering a kind of plea deal for SNC-Lavalin is understandably contentious. Some see the case against such an offer, given the “nature and gravity” of the allegations facing SNC-Lavalin (as the Director of Public Prosecutions put it in ruling out a deal last fall), as open and shut. Others see a key provision in the new law on remediation agreements — that they can be pursued if deemed “in the public interest and appropriate to the circumstances” — as a fairly open invitation to negotiate one with a major employer such as SNC-Lavalin despite the firm’s failure to meet most qualifying criteria.

But it was ultimately the attorney general’s call. And we all know (approximately) how that played out in the weeks and months that followed. The idea has been deviously floated that Wilson-Raybould had to be moved by Trudeau from the justice job because she was “difficult” to work with or had been unqualified to serve there from the beginning. A far better explanation is that two skilled and powerful politicians who had been formidable allies suddenly — and almost simultaneously — found themselves sharply at odds over two hugely important files.

The rift over the Indigenous rights framework helps explain the initial attempt in early January to shuffle Wilson-Raybould to the Indigenous Services portfolio — though that move can now be seen as a clumsy attempt to paper over a severe crack that had developed in Trudeau’s cabinet on a defining issue for his government. The falling out with Trudeau over the Indigenous rights strategy also helps explain why Wilson-Raybould has seemed so willing to stoke the political firestorm raging around a prime minister she evidently felt had abandoned certain core values they’d once shared.

Perhaps the sense of betrayal emerged entirely over SNC-Lavalin. But it looks more like that “broken trust” had deeper and broader roots.

Randy Boswell is a Carleton University journalism professor and a former national writer with Postmedia News.

Copyright Postmedia Network Inc., 2019

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