Ottawa’s consultations around an Indigenous rights framework should recommend a new Royal Proclamation, recognizing Indigenous nations as full partners.
When you come to speak to us about Canada, remember that we have been thinking about Canada for a very long time.
– Natan Obed, President, Inuit Tapiriit Kanatami, RCAP 20 Forum, Winnipeg, 2016
Here we are again. It’s a familiar place and feeling, trying to parse the words of Canada announcing another a new approach to Indigenous policy – this time called a “Recognition and Implementation of Rights Framework.” The consistent theme of the search for an Indigenous policy, following the withdrawal of the 1969 White Paper, has been self-determination and the promise of a move away from assimilation and government control. Canadian governments have promised change by accepting the ideal of self-determination, but they have never embraced the core idea advanced by Indigenous leaders: that self-determination means the restoration of a “nation-to-nation” relationship.
After many Supreme Court decisions, advocacy efforts by Indigenous leaders, and reports, Canada may finally be moving the right direction. In 2015, before the presentation of the Truth and Reconciliation Commission’s final report, Prime Minister Trudeau said, “It is time for a renewed, nation-to-nation relationship with First Nations peoples, one that understands that the constitutionally guaranteed rights of First Nations in Canada are not an inconvenience but rather a sacred obligation.”
In 2016, Canada announced its intention to adopt and implement the United Nations Declaration of the Rights of Indigenous Peoples.
Last year, the government announced its principles for building a new relationship (“Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples). And this February, it followed up with a proposal to create the rights framework, signalling that it planned to enshrine the new relationship in legislation.
The Prime Minister’s 2015 statement and the two subsequent documents must be read as companion documents that set out the government’s intentions. Together they represent the clearest indication of Canada’s current thinking on its relationship with Indigenous peoples. They appear in the long shadow of the neglected and almost forgotten 1996 Report of the Royal Commission on Aboriginal Peoples (RCAP) and the 2015 Report of the Truth and Reconciliation Commission.
The framework proposal appears to end a debate that has been going on since the era of the repatriation of the Constitution in the 1980s. The essence of this debate is whether section 35 (1) of the Constitution, which recognizes and affirms Indigenous and treaty rights, is a full or an empty “box.” Seeing section 35 as an empty box would mean that rights must be established piecemeal in the courts and through negotiations at every turn. But Justice Minister Jody Wilson-Raybould has said section 35 “is a full box of rights to be filled up by First Nations, Metis and Inuit across the country.” The question is, does “full” mean completely full, with no room to add anything new, or almost full, which allows for the addition of new, presumably negotiated, rights. It may be that the debate is not over, but has merely turned into a new question.
A more interesting and profound question is whether these documents represent a desire to create a post-colonial Canada, that recognizes Indigenous peoples as one of its founding peoples, and as such is a move away from the colonialism represented by the Indian Act. The jurisprudence and policies of the last half century have changed the citizenship status of Indigenous peoples from “citizens minus,” who were ineligible to vote in federal elections until 1961, to “citizens plus,” who possess an inherent right to self-government.
The 1983 Penner Report, Indian Self-Government in Canada, and the 1995 Inherent Rights policy made it clear that the Indigenous right to self-government was recognized within the constitutional framework. Still, the view expressed in RCAP that Canada is incomplete without the recognition of Indigenous nations and governments as part of the governing structure of the country has been solidly ignored for two decades. With the government now dusting off RCAP, will it embrace the commission’s central recommendation for a post-colonial Canada?
One challenge is that while some want to talk about the relationship with Canada, others want to urgently talk about the quality of life of Indigenous peoples. The conversations are not mutually exclusive. Reconciliation means that both need to occur simultaneously. Solutions to improving the Indigenous peoples’ quality of life must be grounded in the discussion about the relationship, particularly in the debate about control over lands, territories and resources. As a country, we now have enough experience to show us that self-government, control of land and resources and quality of land are strongly connected.
The recognition framework provides an opportunity to bring Indigenous peoples into Confederation as full constitutional partners and to lay the foundation for a new post-colonial Canada. The proposed federal framework is an opportunity for Canada to do the right thing. It has the intellectual, constitutional and jurisprudence foundation to do so. Indigenous leaders bring a long history of thought about Canada that cannot now be ignored. Reconciliation will require giving up an old relationship and developing a new one. A new relationship cannot be built on the 1763 Royal Proclamation, which was issued before the foundation of Canada, or on a set of understandings and principles that don’t fit the realities of the 21st century.
The best way forward is for the current consultations to recommend the pronouncement of a new Royal proclamation that recognizes Indigenous nations as partners in Canada, and that sets out the principles of the new relationship. The final report of the Royal Commission on Aboriginal Peoples set these principles out very clearly in 1996. They remain relevant today and should form the basis of a new proclamation. Apologies for past bad behaviour are a good start, but they must be followed up with sincere and substantive action. Creating a post-colonial Canada means breaking with the past.
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