In September, at a national forum hosted by the Assembly of First Nations, a number of¬†First Nations chiefs¬†expressed their opposition to the¬†federal government‚Äôs¬†Recognition and Implementation of Rights Framework. In advance of that meeting,¬†the¬†legal scholar and former judge Mary Ellen¬†Turpel-Lafond,¬†a¬†former¬†commissioner of the Truth and Reconciliation Commission,¬†Wilton Littlechild, and British Columbia Chief Ed John sent Prime Minister Trudeau a¬†letter¬†challenging the¬†Indigenous¬†rights recognition framework as more ‚Äúrights-denying‚Ä̬†than rights-recognizing.¬†

These critics¬†are right; the very idea of federal legislation to create an ‚ÄúIndigenous rights recognition framework‚ÄĚ is fundamentally flawed, even misguided. The treaty relationship, as first articulated by the Peace and Friendship Treaties in the Maritimes¬†(where we are from), does not give the Crown the right to define a framework under which the Crown will ‚Äúrecognize‚ÄĚ what ‚Äúrights‚ÄĚ Indigenous peoples have. For Indigenous peoples, the very idea of ‚Äúrights,‚ÄĚ as something granted to citizens by a sovereign,¬†is¬†the language of colonialism. It is high time we replaced the language of rights with the language of¬†sovereignty and the treaties. We need to understand the history of Crown-Indigenous relations as one¬†of sovereign Indigenous nations¬†sharing¬†their sovereignty, through treaty,¬†with the European settlers.¬†As the¬†elders tell us, it is up to Indigenous peoples to keep¬†treaties alive. Today, keeping the treaties alive means opposing the imposition of a ‚Äúrights recognition framework‚Ä̬†by the federal government.¬†

The courts seem¬†to understand, at least at times, that reconciliation¬†requires the recognition of Indigenous sovereignty and respect for this¬†sovereignty in how our governments work together. Back in 2004, in its¬†Haida Nation¬†v. British Columbia (Minister of Forests)¬†decision, the Supreme Court of Canada recognized¬†that Indigenous sovereignty predated¬†the Crown‚Äôs assertion of sovereignty. The Court¬†compared pre-existing Indigenous sovereignty with¬†merely ‚Äúassumed‚ÄĚ Crown sovereignty. The Court¬†also¬†said that conflicting claims of sovereignty had to be reconciled through ‚Äúthe¬†process of honourable negotiation.‚ÄĚ It is important to keep in mind that the Supreme Court said ‚Äúnegotiation,‚ÄĚ not ‚Äúconsultation.‚Ä̬†

More recently, the Federal Court of Appeal,¬†in its¬†decision on the Trans Mountain pipeline extension,¬†said that serious consultation does not exist simply to allow Indigenous peoples to ‚Äúblow off steam‚ÄĚ before the Crown goes forward with what it was intending to do anyway.¬†The court said,¬†‚ÄúConsultation is meaningless when it excludes from the outset any form of¬†accommodation,‚Ä̬†and¬†‚Äúmeaningful dialogue is a prerequisite for reasonable consultation.‚Ä̬†

Dialogue is how sovereign nations resolve conflicts when they wish to find a cooperative way to manage shared interests, for example by negotiating a treaty of peace and friendship. 

As Don Lenihan, who has had extensive experience in managing dialogue and citizen engagement processes,¬†defined ‚Äúdialogue‚Ä̬†in the aftermath of the Court of Appeal decision, participants are expected to listen to one another, learn about each other‚Äôs concerns and perspectives, discuss their similarities and differences, weigh the evidence before them and work together to strike a balance¬†among¬†their competing interests that everyone can feel is fair.¬†Dialogue,¬†then, is¬†how¬†sovereign nations¬†resolve conflicts when they¬†wish to find a cooperative way to manage¬†shared interests, for example by negotiating a treaty of peace and friendship.¬†

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Unfortunately, the federal government does not yet seem¬†to understand that reconciliation requires real, active recognition of Indigenous sovereignty and a commitment to work with Indigenous nations as nations within¬†the¬†multinational community that is Canada. The¬†federal government‚Äôs full implementation of the¬†United Nations Declaration on the Rights of Indigenous Peoples¬†(UNDRIP)¬†‚ÄĒ¬†with its core commitment to the principle that Indigenous nations have the right to decide for themselves whether to grant or withhold ‚Äúfree, prior and informed consent‚ÄĚ to actions that would interfere with their lands, resources and sovereignties¬†‚ÄĒ¬†would help to take Canada back to a relationship of reconciliation,¬†as found¬†in the early¬†Peace and Friendship Treaties.¬†The¬†Truth and Reconciliation Commission¬†also understood that reaffirming the nation-to-nation relationship between Indigenous peoples and the Crown¬†and renewing the treaty relationship¬†are¬†essential first steps¬†toward reconciliation, as it told us in Call to Action 45.¬†

Despite the rhetorical commitment of this federal government to accept and implement UNDRIP and to act on all of the Truth and Reconciliation Commission’s calls to action, Fisheries Minister Jonathan Wilkinson has said that the courts, not Indigenous peoples, are the only players that need to be satisfied by the federal government’s actions. This seems far from a commitment to respect Indigenous sovereignty and actually implement the core commitments of UNDRIP and the Truth and Reconciliation Commission’s calls to action. 

The answer¬†to¬†how to move forward toward reconciliation is in the history of how the Crown and Indigenous nations made the first treaties. The federal government should cede control of the process, by abandoning the very idea of defining a ‚Äúrights recognition framework‚ÄĚ in a piece of federal legislation drafted by federal officials. Instead, the government should¬†sit down with the Indigenous nations of Canada to¬†negotiate a new treaty,¬†like the 18th-century Peace and Friendship Treaties and the Treaty of Niagara,¬†to guide how the sovereign nations who share this land will share their sovereignty in the 21st¬†century in peace and friendship. Only such a process as this will¬†achieve true reconciliation.¬†

Photo: Indigenous leaders gather in Gatineau, Quebec at the Assembly of First Nations’ National Policy Forum on Affirming Rights, Title and Jurisdiction, on Sept.25, 2018. Photo courtesy of the Assembly of First Nations.

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David Perley
David Perley, former chief of Tobique First Nation in New Brunswick and a former official with the federal and New Brunswick governments, is director of the Mi’kmaq-Wolastoqey Centre at the University of New Brunswick. 
Ian Peach
Ian Peach has worked in senior positions in federal, provincial and territorial governments, at universities across Canada, for non-governmental organizations, and as a public policy and constitutional consultant, practitioner and scholar, including on Indigenous issues.

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