A governmental recognition of wrongs needs to be a precondition to any further policy or legislation focused on Indigenous title or government.
Upon taking power in 2015, Prime Minister Trudeau characterized Canada’s relationship with Indigenous peoples as of primary importance: “No relationship is more important to me and to Canada than the one with Indigenous Peoples. It is time for a renewed, nation-to-nation relationship with Indigenous Peoples, based on recognition of rights, respect, co-operation, and partnership.” As a token of this friendship, Trudeau promised an extensive review and reconfiguration of federal laws and policies that concern Indigenous peoples.
In 2018, Carolyn Bennett, the Minister of Crown-Indigenous Relations, initiated consultative rounds with experts for what would become the draft Recognition and Implementation of Indigenous Rights Framework (RIIRF) legislation. The stated intent was to provide a legislative framework to recognize and animate Indigenous rights. The experts consulted were highly critical of the assumptions and objectives of the legislative draft, and after a couple of redrafts the matter was consigned to the political closet of failed initiatives. The RIIRF initiative left many participants suspicious of the federal government’s intentions, its truthfulness and its competence. After all, given the gap between Indigenous aspirations, current law and the proposed recognition legislation, one had to assume either bad faith or stupidity in the conception of the initiative.
The RIIRF was deeply problematic because it functioned to limit rather than enable the exercise of existing Indigenous rights. Moreover, the draft did not measure up to the requirements set by Canadian constitutional law and was inconsistent with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). UNDRIP is the international gold standard for recognition of Indigenous rights. The Harper Conservatives were part of a cabal of four states resisting the 2007 adoption of the declaration by the UN, and once the declaration was passed, they continued their foot-dragging at home, maintaining Canada’s “objector” status. It wasn’t until 2016 that the Trudeau Liberals removed the objector designation, fully endorsing Canada’s adoption of the declaration. Now, Canada must attend to implementation — to making its policy and legislation consistent with UNDRIP.
The RIIRF framework does not refer to Indigenous nations as governments, instead describing them as legal entities likened to “natural persons,” a legal term with the potential for the corporatization of Aboriginal and treaty rights. Corporation models reframe Indigenous government so that Indigenous rights resemble those of corporations — whose duties are to shareholders rather than citizens — rather than being a distinct form of rights that arise from our prior existence on our territories (inherent rights) and from treaties. This model does not produce governments with constitutional status in a federal order. This provision was recycled from the failed federal 2002 First Nations Governance Act, which was rejected by most First Nations.
Governments of settler states have a most difficult time accepting responsibility for actions that violated the rights of Indigenous peoples, and in particular with acknowledging that the state itself is built on an expropriated base of Indigenous territories, sovereignties and resources. In Canada, reconciliation initiatives have been focused on a few high-profile historical violations of Indigenous human rights, such as the residential school policy, the criminalization of Indigenous religious practices, the forced relocation of certain Inuit communities and the incarceration and state execution of Indigenous resistance leaders in the 1885 Metis and Indian resistance to colonial occupation of their lands. It has not been applied to the intergenerational consequences of these and related practices or to settler state positions and practices that continue colonialism today.
Moreover, reconciliation has not taken up the ideology, the structures and the processes that animated these and other fundamental human rights violations and that facilitate the contemporary continuance of those violations. In spite of the evident contradiction with its claims about the importance of the relationship with Indigenous peoples and the objective of reconciliation, the Trudeau government is hell-bent on continuing the Canadian tradition of appropriating Indigenous lands and resources and ignoring Indigenous dissent, including by ignoring the UNDRIP requirement for free, prior and informed consent over the use of unceded traditional Indigenous territories. Pipelines, anyone?
This failure is not only a Liberal one. International instruments require enabling legislation domestically if governments are to be compelled to take implementation actions. C-262 was a private member’s bill brought forward in the last Parliament, seeking to have Canada implement UNDRIP. It was introduced by New Democrat MP Romeo Saganash and passed the House of Commons, after which it was sent to the Senate in 2019. But the Scheer Conservatives evidently decided to have the Conservative senators talk the bill to death by running out the legislative clock before prorogation on June 21, 2019. Given that Conservative senators are part of the Conservative caucus and thus subject to direction by the party leader, Andrew Scheer holds the responsibility for his senators’ legislative assassination of the bill. Its defeat has delayed Canadian implementation of UNDRIP for a subsequent government, and thus delayed implementation of Indigenous rights.
Canadian governments have a long and tarnished record of denying, obfuscating and ignoring Indigenous rights. Yet we are apparently in a reconciliatory moment when governments, particularly the Trudeau government, are seeking reconciliation with Indigenous peoples. Reconciliation, as with other contrition measures, emerges from a set of steps and practices. These include acknowledgement and acceptance of responsibility for a particular wrong (in this case, colonization and its consequences), reflection on and remorse for it, restitution to the extent possible, commitment to a different relational path and humility in not expecting or requiring friendship or political support as a transactional consequence.
I propose a Recognition of Wrongs as a truly reconciliatory initiative. It would place the responsibility for the relational problematic where it should lie: with those who have power and have used it to the detriment of Indigenous peoples. A governmental recognition of wrongs on behalf of the state must be a precondition to any further policy or legislation focused on issues of Indigenous title or government from the federal or provincial constitutional orders of government.
At the top of the list of wrongs for which the state should take responsibility, it’s that little matter of land theft that demonstrates the limits of the reconciliatory and inclusionary turns in Canadian public policy. Self-government, recognition of rights frameworks and similar initiatives are merely pacificatory and assimilative. I hold little hope for reconciliation as a political objective, because the state through its major partisan actors both wilfully misunderstands its position in creating and maintaining the matters for which it must reconcile, and insists on crafting assimilation-like objectives into its post-apology policy initiatives. The self-serving misconstruction of the role of the settler state and its privileged settler populations is evidence of the state’s position and also directs it further, sanitized by the democratic imprimatur implicating all Canadians. If decolonization is my objective, the state’s is assuredly maintenance of the status quo.
As Romeo Saganash wrote in his last official word as MP on the demise of his bill, “It’s not enough to create legislation that holds the colonial governments accountable to international human rights standards and to Indigenous ways of being; it will take structural and institutional change in order to see justice on stolen lands.” And structural and institutional changes are precisely what the Liberal RIIRF did not consider, and what the Conservatives would evidently not tolerate in UNDRIP’s implications.
As I’ve argued elsewhere, apologies and reconciliation must be motivated by awareness, contrition, commitment to restitution and respect on the part of the government of the state that inflicted the offences. The change of perspective and the acceptance of collective responsibility must lead to the structural and institutional changes Saganash referred to. Speaking to those kinds of changes, Perry Bellegarde, National Chief of the Assembly of First Nations, has said that the federal government must negotiate revenue-sharing agreements with First Nations, provinces and territories; pass legislation to implement UNDRIP; and address the issue of return of land by adding to reserves and recognizing title. There will be similar views from Inuit and Métis leaders.
The Supreme Court of Canada decided in 2014 in Tsilhqot’in Nation v. British Columbia that there are cases where Aboriginal title has never been extinguished, and thus jurisdiction and title to the land remain with the relevant Indigenous nation. Moreover, treaty nations have constitutionally recognized agreements with the state that are neither land cessions nor surrenders of sovereignty. UNDRIP requires states to provide redress for actions that have had the aim or effect of dispossessing Indigenous peoples of lands, territories and resources. Recognizing Indigenous nations’ title and jurisdiction and reimagining the Canadian federal order to place Indigenous governments in a constitutional position to participate in the federal redistribution of jurisdiction, authority and money would be a good start on redress for colonial occupation.
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