In the shadow of the ongoing COVID-19 pandemic, policy-watchers in Ontario could be forgiven for not noticing the December 2020 release of a report by the province’s Auditor General Bonnie Lysyk on the government’s handling of Indigenous affairs. Since then, 2021 has been particularly trying for Crown-Indigenous relations as the remains of residential school victims continue to be recovered. This national shame has reinvigorated public interest in the work of reconciliation.
With this in mind, it is useful to take a second look at the report, in an effort to understand how Crown-Indigenous relations can be managed more effectively. If implemented, the AG’s recommendations would go a long way toward streamlining and improving Indigenous-focused policy in the province. However, as might be expected of a government audit, these recommendations are largely process-oriented. This does not go far enough to repair fractured relationships; Crown-Indigenous consultation must be woven into the policy-making process at multiple points. Ongoing opportunities for Indigenous-led input and feedback would not only increase buy-in by Indigenous governments, reducing litigation and protest, but would also be more consistent with established treaty relationships, Canadian constitutional law and Ontario policy. Put simply, the Ontario government needs to move from process to partnership.
Treaty relationships between Indigenous Peoples and the Crown can be traced back to long before Confederation, at least as far back as 1764, when Britain’s first superintendent of Indian affairs Sir William Johnson presented the Covenant Chain Wampum belt to some 2,000 First Nation leaders assembled at Niagara. The wampum belt depicts two figures representing two worlds holding hands in friendship and bound by a silver chain. Polishing the Covenant Chain represents the regular renewal of partnerships. The use of ceremony grounded in Indigenous tradition was intentional, and this history continues to inform rights claims and treaty negotiations to this day. As noted First Nation scholar Sákéj Henderson has remarked, treaties are not the source of Indigenous rights and jurisdiction; they merely document rights that Indigenous nations already held to begin with.
In a more contemporary legal context, the landmark Supreme Court decisions of Haida Nation vs. British Columbia (2004) and Taku River Tlingit First Nation vs. British Columbia (2004) prescribed a joint federal and provincial “duty to consult and accommodate” on matters affecting recognized or asserted Indigenous rights. As the court said, this duty “cannot be interpreted narrowly or technically,” and furthermore, “in all its dealings with Aboriginal peoples, the Crown must act honourably.” The honour of the Crown is a concept relevant to all Canadians, as it speaks to governments’ accountability for fulfilling their promises.
Indigenous rights overlap with multiple areas of provincial jurisdiction, including land-use portfolios such as natural resources, energy, transportation, infrastructure and parks, as well as provincial services such as health, education, child and family services, and justice. This fact has led to a heavily decentralized policy landscape in Ontario, with individual ministries managing Indigenous-focused programming according to their respective mandates. The Ontario Ministry of Indigenous Affairs (IAO), created in 2007 in response to the Ipperwash Inquiry, should have tackled this issue. The ministry has a mandate to promote “collaboration and coordination across provincial ministries on Indigenous policies and programs.” In practice, however, as the Auditor General found, this mandate is relatively toothless and has little accountability or oversight power to help achieve substantive co-ordination between provincial ministries.
In fact, provincial ministries, including Indigenous Affairs itself, are largely unaware of most Indigenous-focused programs and services in Ontario. At the time of the AG’s audit, the IAO listed only 11 programs on its website, and could only name 30 when asked to produce a complete list by the Auditor General. The AG’s report represents the first comprehensive accounting of Indigenous-focused spending, amounting to some 140 different programs across the provincial government, with a combined budget of $1.1 billion in 2019-20. Of these monies, the report found $377.7 million in spending on health and mental health programs, $228.6 million on education and child care, $167.5 million on child and family services, and $124.9 million on justice initiatives. Simple arithmetic shows that all the other ministries were managing a pot of $201.3 million of Indigenous-focused spending in that fiscal year. It is not unusual for most government spending to be allocated for services such as health and education, but this remaining pot had to be split among all land and resource ministries, which make up the bulk of land-use decisions and arguably have the greatest effect on the exercise of Indigenous rights and title. Should similar allocations hold true over several fiscal years, this would go some way in explaining the capacity challenges faced both within the government and between the government and its Indigenous partners.
The lack of information-sharing between ministries leads to duplicate processes, which wastes time, money and human resources for both the Ontario government and rights-holding communities. This is felt most acutely by Indigenous communities, which are managing much smaller policy teams and may be compelled to engage individually with multiple ministries on a given project, rather than holding a single, wide-ranging consultation process across multiple sectors. This decentralization of Indigenous programs also produces legal risks for the provincial government: if an Indigenous community takes one ministry to court over a breach of its duty to consult and another ministry already had knowledge of an existing rights claim, the Crown as a whole can be held liable. Acting effectively as one Crown is not just good policy, it’s a matter of constitutional law.
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The Auditor General admonished the Ontario government for failing to fully implement the recommendations of the 2007 Ipperwash Inquiry, which the province has not reported on since 2014. She noted that many of the Ipperwash recommendations would have addressed issues raised in the audit, notably the incorporation of Indigenous feedback into provincial guidance on the duty to consult, developing benchmarks for land-claim negotiations, and the establishment of an independent treaty commission of Ontario (in line with those in British Columbia, Saskatchewan and Manitoba). The latter recommendation would also remove a key conflict of interest for the Ontario Crown, which is currently in the position of determining the strength of Indigenous rights claims while simultaneously acting as a defendant against them.
To tackle these shortcomings, the Auditor General recommended that IAO take the following measures:
- Update its mandate to reflect its leadership role in co-ordinating Indigenous policy in the province;
- Develop and maintain a comprehensive list of all Indigenous programs and supports;
- Publicly report on key socio-economic outcomes for Indigenous Peoples;
- Engage with Indigenous Peoples on the development of government-wide programs and services;
- Encourage and track consultation and engagement activities undertaken by other ministries;
- Centralize knowledge of Indigenous rights assessments;
- Publicly report on the progress and cost of land-claim negotiations;
- Publicly report on the implementation of the Ipperwash Inquiry recommendations, and;
- Assess the feasibility of establishing an independent treaty commission of Ontario.
The common thread in all these recommendations is that they involve processes that are largely internal to the Ontario government. Given the serious shortcomings in information-sharing between ministries, implementing the recommendations would represent a major improvement in the way Ontario manages Indigenous policy, allowing the province to better operate as one Crown and reducing the capacity burden on Indigenous communities. However, the AG’s report stops well short of acknowledging the influence that Indigenous Peoples should rightfully have over policies affecting their inherent rights and title. The audit calls for Indigenous consultation on provincial policy and guidance documents, but it only mentions the policy development phase, and there is no call for ongoing consultation, engagement or feedback from Indigenous communities on the effectiveness of implementation.
Similarly, despite the numerous calls for increased public reporting, there is little indication in the report that rights-holding communities would be involved in determining shared measures of success, which should leave Ontarians questioning who this accountability is really for. Finally, the AG’s call to “assess the feasibility” of establishing a treaty commission of Ontario is substantially weaker than the recommendation of the Ipperwash Inquiry, which states in no uncertain terms that an independent body should be created.
On the policy front, Ontario signed a political accord in 2015 with the Chiefs of Ontario, which clearly identified Indigenous self-government as an inherent right. If Ontario is serious about recognizing this right and acting in accordance with constitutional law, then Indigenous rights-holders in the province must be continually involved in setting policy goals, co-determining shared measures of success and providing feedback on implementation. Ontario needs to stop unilaterally assessing the extent of Indigenous rights while failing to properly involve rights-holders themselves. This is not just a matter of law, it is also the right thing to do. Fighting these losing battles at negotiating tables and in courtrooms will only delay the important work of reconciliation, costing time, money and political capital. Ontario needs to look beyond internal processes and start building long-term partnerships.