Last week, when Quebec Premier Philippe Couillard suggested that it might be time for a Constitutional conversation, Prime Minister Justin Trudeau wasted no time in shutting the federal door on any such proposal. He said, “You know my views on the Constitution,” and then went on to remind us of those views: “We are not opening the Constitution.” That terse response was both brazen and inconsistent with past statements on the matter. Indeed, had Trudeau given any meaningful consideration of the perspective of Indigenous peoples, he might not have dismissed Constitutional dialogue so sharply. After all, Indigenous people have a great deal to say on the matter of Canadian constitutionalism. And, if we are to believe Trudeau and a number of his ministers when they repeatedly state, as did the Prime Minister, that “No relationship is more important to me and to Canada than the one with Indigenous Peoples,” then it might reasonably be expected that Trudeau would pause to hear Indigenous peoples out, before so briskly discounting any possibility of Constitutional reform.
Despite his most recent assertions, Trudeau hasn’t always held the view that 6the Constitution is “closed”; it wasn’t always so absolute. In mid-December 2015 — not long after he was sworn in as Prime Minister — he expressed a slightly different view. Speaking with the Ottawa bureau of the Canadian Press, he offered the following: “What I ask now to anyone who offers to open the Constitution, or says we should open the Constitution, is: what concrete problem are we trying to solve that is unsolvable without opening the Constitution?” So, it would appear Trudeau was amenable to the conversation right up until the moment someone actually proposed a constitutional dialogue, albeit with some qualification.
What’s more, it would take very little constitutional expertise in Indigenous issues — and even less intellectual reflection — to meet Trudeau’s “unsolvable problem” condition for opening the issue. In the ministerial mandate letters, each member of Her Majesty’s Privy Council of Canada — Canada’s consultants to the Queen on constitutional matters — were told by the Prime Minister that, “It is time for a renewed, nation-to-nation relationship with Indigenous Peoples, based on recognition of rights, respect, co-operation, and partnership.” And there it is, the problem that is unsolvable without opening the Constitution.
Let’s parse this a bit.
First, Trudeau calls for a “renewed, nation-to-nation relationship with Indigenous Peoples.” Just as Quebec has sought constitutional recognition of its nation, so too have Indigenous nations, for several decades. The matter is different for Indigenous nations, however. There is a peculiar omission in our constitutional history that sidesteps past recognition of Indigenous nations. The Royal Proclamation of October 7, 1763, makes an appearance in section 25 of the Constitution Act, 1982, to guarantee to “aboriginal peoples of Canada” the non-derogation of “any rights or freedoms that have been recognized by the Royal Proclamation.” And though it is called in Canadian jurisprudence the “Magna Carta of Indian rights in North America” and the “Indian Bill of Rights,” the Royal Proclamation’s recognition of Indigenous nationhood — specifically referring to “the several Nations or Tribes of Indians” — seems to have dropped off the radar, in (rather selective) readings of Canada’s historical constitutionalism. In other words, Canada’s Constitution observed the rights outlined in the Royal Proclamation, but inexplicably left out other crucial features, namely enshrining recognition of Indigenous nationhood. This omission may be unremarkable in non-Indigenous circles, but it has never left the Indigenous collective consciousness. If Trudeau is to respect a truly “nation-to-nation” relationship, then it is incumbent upon the Crown to recognize, and enshrine in its Constitution, that Indigenous nations are exactly that: nations.
If Trudeau is to respect a truly “nation-to-nation” relationship, then it is incumbent upon the Crown to recognize, and enshrine in its Constitution, that Indigenous nations are exactly that: nations.
The second critical part to tease out from Trudeau’s comments in the ministerial letters concerns the assertion that the renewed relationship with Indigenous nations is to be “based on recognition of rights.” Trudeau had promised as much as part of the Liberal election platform, and after he was sworn-in as Prime Minister he instructed Minister of Indigenous Affairs Carolyn Bennett, in her mandate letter, to make her top priority in reconciliation “implementation of the United Nations Declaration on the Rights of Indigenous Peoples” (UNDRIP). By May 2016, Minister Bennett was in New York City, speaking before the United Nations Permanent Forum on Indigenous Issues. On behalf of the Trudeau government, Minister Bennett told the United Nations that “We intend nothing less than to adopt and implement the declaration in accordance with the Canadian Constitution.”
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But, in the time it took for the seasons to change, from spring to summer, the government made some significant steps backward on the promises that it had made to Indigenous peoples about their rights. In mid-July, the Minister of Justice, Jody Wilson-Raybould, told the Assembly of First Nations (AFN) at its Annual General Meeting that the Trudeau government would not — or, rather, could not — recognize their rights. She said that Canadian law as it stands was an obstacle to adopting the UNDRIP, thus squelching hopes of Indigenous nationhood. As Minister Wilson-Raybould told the AFN at its meeting, “as much as I would tomorrow like to cast into the fire of history the Indian Act so that the nations can be reborn in its ashes, this is not a practical option – which is why simplistic approaches, such as adopting the UNDRIP as Canadian law, are unworkable.”
What we’ve heard from ministers Wilson-Raybould and Bennett appears to meet Trudeau’s condition for opening the Constitution. His ministers have told us that his priorities for Indigenous peoples are “unworkable” in Canadian law, and suggest that the UNDRIP cannot be adopted “in accordance with the Canadian Constitution.” And therein lies the unsolvable problem: the inadequacy of the Constitution to properly constitute the “nation-to-nation” relationship and the “recognition of rights” of Indigenous people and nations.
If Indigenous people are partners in what Trudeau has described as his and Canada’s most important relationship, then why has he yet to properly constitute the partnership? If the relationship truly is “nation-to-nation,” then it must be constituted as such. Token mentions of Indigenous peoples as nations are superficial. In any case, as Pam Palmater has pointed out, references by this government to “Indigenous nations” have been eclipsed by less meaningful descriptions, such as “Indigenous groups” or “stakeholders”; a clear effort to downgrade the status of Indigenous nations and sustain their continued subordination in the political order of things.
It is explicitly recognized, and protected, in the Constitution that non-Indigenous people have freely exercised self-determination and established governance over themselves, all in the name of the Canadian nation. These are not benefits enjoyed by Indigenous nations and their peoples. Highfalutin’ policy statements and equally tenuous legislation that can be repealed at any moment are not a substitute for rights given the highest lawful recognition and protection. Without these rights, it can hardly be said that the relationship between Indigenous peoples and the Trudeau government is based upon “respect, co-operation, and partnership.”
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