The Prime Minister’s Indigenous Rights Framework Changes Nothing

Indigenous people have had to fight for recognition of every right we have. And we always will.

✎  Wayne K. Spear | February 15, 2018 • Politics


IN A WEEK WHEN Indigenous people announced that reconciliation is postponed, if not cancelled, the Prime Minister sprinkled us with the sunshine of his forthcoming legal framework on Indigenous rights. Mr. Trudeau used bold words like engagement and implementation, even uttering the C-word, and claimed that his government would complete the unfinished business started by Trudeau the Senior, with the repatriation of the Constitution.

The fashionable words were all there: rights, recognition and engagement, partnership and reconciliation. Not any, old partnership, but full partnership—a new relationship with First Nations, Inuit, and Métis people. Team Trudeau even had social media hastags, like #IndigenousRights and #decolonization. What a historic reconciliation engagement of full partnership respect recognition historic rights day it was.

A little background might help. Never forget that the federal government didn’t give Indigenous people Section 35 of the Constitution. Indigenous people—natives, as we were then known—weren’t even invited to the conversation, at first. Pierre “The White Paper” Trudeau had no appetite for discussing native rights, which in his view were simply the rights of all Canadians, and made no mention of a Section 35 in his 1980 proposal. Indigenous people made a stink, and you know the adage about squeaky wheels and grease. Eventually the Indian politicians got a seat at the table, and quite a few native people protested that, too, not wanting to be a part of whatever dirty work they suspected the feds were up to.

I’m not an expert on what happened next, but I’ve talked to every AFN National Chief involved in the repatriation talks and beyond. The Assembly of First Nations led the charge for recognition of inherent Indigenous rights, and met the resistance of Team Trudeau and the provinces, who whittled a much more robust series of proposed clauses into the now-familiar language of Section 35:

35.(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada. (3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

The resource-extraction provinces, particularly Alberta, took the position that Section 35 (existing aboriginal and treaty rights) was an empty box, to be filled in the future at the discretion of the courts. The premiers had seen similar work in Australia, where existing Aboriginal rights were interpreted to mean rights that come into existence, from this moment forward. But of course that’s not how it’s gone in Canada. Indigenous people have taken their Section 35 rights to court, over and over again, and fought like hell to get our rights into the box. And in many instances, certainly more than Canada would have preferred, we’ve won.

Constitution Express

The Section 35 fight for Indigenous rights, recognized and affirmed by the Constitution of Canada, has been a restless work from 1982 to the present. The view that we’ve made progress is not universal, with people like Mary-Ellen Turpel and Art Manuel and Russ Diabo arguing that the post-Section-35 world is a colonial world, just like it was before. Instead of Indigenous sovereignty over our lands and resources, and a nation-to-nation relationship with Canada, colonial interpretations of Section 35 give our communities municipal powers and brown bureaucrats. We can choose the day Rez garbage will be picked up, and our signs say Tésta’n instead of STOP. We get to say Yes to pipelines, and if we’re lucky receive a share of the take, but we don’t get to say No, because we are a minority sub-sect of Indigenous-Canadians.

What we all agree on as Indigenous people is that we’ve had to fight for everything we’ve ever had. Someone once said that government doesn’t give you your freedom, you have it already—if you exercise it. That’s true of all people, but it’s doubly and triply true for Indigenous people, who would have vanished entirely, like a narrow river into the ocean of Canada, if things had gone as originally planned. There isn’t an Indigenous right on Earth that we’ve been given by a colonial government, and there never will be. And Trudeau’s rights framework changes nothing.

Will colonial domination survive UNDRIP?

This week Canada’s ministers of Justice and Indigenous Affairs, Carolyn Bennett and Jody Wilson-Raybould, addressed the United Nations Permanent Forum on Indigenous Issues. The occasion was their government’s decision to revoke its “permanent objector status” vis-à-vis the UN Declaration on the Rights of Indigenous Peoples, also known as UNDRIP.

The UN Declaration on the Rights of Indigenous Peoples goes back decades. The proposal to draft standards and principles confronting the injustices committed against the world’s indigenous peoples arose in 1982. At its September 2000 adoption, UNDRIP was opposed by four nations, among whom was Canada. (The others were Australia, New Zealand and the United States—all states with a colonial history.)

In 2010, the Harper Conservatives endorsed UNDRIP but qualified this meaningless gesture by asserting that the declaration was aspirational only, had no legal force, and was inconsistent with Canada’s constitution and Charter of Rights and Freedoms.

A mere 15 pages, UNDRIP’s 46 articles can be read in a sitting. Here’s an example of language which Canada found objectionable:

Article 25

Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

Article 26

1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

At the time UNDRIP was adopted, Mr. Harper was promoting the oil sands and crafting resource-industry-friendly omnibus bills. His aspiration for Canada was energy superpower. A lot of the former Prime Minister’s thought, time, and energy were committed to energy, and especially to getting Alberta’s bitumen out of the ground and pipelining it westward to markets in China.

For the decade he held office, indigenous resistance was Stephen Harper’s Nemesis. The last thing the Conservatives needed, or wanted, was a UN endorsement of indigenous rights to own, use, develop and control their lands, territories and resources.

Canada’s Supreme Court wasn’t helping Mr. Harper much, either. A handful of rulings established that, at least in principle, aboriginal people could possess aboriginal land title and that their free, prior, and informed consent (here the acronym is FPIC) must be sought by governments prior to land and resource development. Tsilhqot’in Nation v British Columbia went a step further. Not only was it possible to hold aboriginal title, but the Supreme Court ruled in 2014 that a specific group, the Xeni Gwet’in, indeed held it to a territory of 1,750 square kilometres.

So is colonialism dead?

No, and here’s why the old business of colonial domination will probably survive UNDRIP, the Supreme Court of Canada, and the Truth and Reconciliation Commission.

First of all, UNDRIP is not, as the previous government of Canada has asserted, legally binding. There’s no court that can compel the government, and there is no mechanism to impose sanctions should Canada breach any of the Declaration’s 46 “aspirational” articles. As for the Supreme Court decisions, FPIC is a duty to seek consent rather than to obtain it. Under the present regime, the only unqualified Aboriginal right is the right to say Yes.

The courts are clear on the point that indigenous people do not hold veto rights over land and resource development. Where a proposal is likely to infringe upon aboriginal rights, there must be government accommodation, but any assertion of a right must be balanced against its counter-assertions. If Canada must reconcile with Aboriginal people, the opposite has also and always been true. At 4% of the population, aboriginal people are a tiny minority, and no Canadian court is ever going to affirm the proposition that the will of a majority could be overwhelmed by what is after all marginal peoples.

What the courts have articulated is simply and merely the principle of balancing minority and majority rights. Tsilhqot’in looks breathtakingly liberationist (or dangerously activist, if such are your politics) only against the disgraceful backdrop of rights-balancing from 1867 to-present. As I like to point out in my public lectures, the Indian Residential School System was entirely about reconciliation: namely, reconciling yourself to being told by Ottawa what’s best for you, and having it imposed under threat of fine, imprisonment, or even starvation. Under this model, the minority rights could be balanced against the majority will by absorbing that minority into the political body of Canada. No more minority, no more problem.

And, really, what has changed? When Attawapiskat hit the news yet again, the knee-jerk reaction of newspaper columnists was to call for absorbing the Cree into Canada’s towns and cities, much as the agents of Indian Affairs had advocated assimilation a century earlier. (The paradox is that they pursued this end by establishing remote reserves like Attawapiskat.) What the majority never appear to endorse are measures and arrangements that might promote strong, independent, aboriginal nations.

But I digress.

This business of reconciling rights involves the Crown and aboriginal people. The Crown asserts rights and prerogatives consistent with the traditions of English common law, while the Constitution Act of 1982 (specifically section 35) recognizes and affirms the “existing aboriginal and treaty rights of the aboriginal peoples of Canada.”

Supreme Court Chief Justice, Beverley McLachlin, has written in the Tsilhqot’in decision that “the s. 35 framework permits a principled reconciliation of Aboriginal rights with the interests of all Canadians.”

As discussed, s. 35  of the Constitution Act, 1982  imposes limits on how both the federal and provincial governments can deal with land under Aboriginal title. Neither level of government is permitted to legislate in a way that results in a meaningful diminution of an Aboriginal or treaty right, unless such an infringement is justified in the broader public interest and is consistent with the Crown’s fiduciary duty owed to the Aboriginal group. The result is to protect Aboriginal and treaty rights while also allowing the reconciliation of Aboriginal interests with those of the broader society.

All fine and good, but it isn’t the pit of history’s bitter fruit. As recognized by UNDRIP and the Truth and Reconciliation Commission—and the Royal Commission on Aboriginal Peoples, for that matter—the crux of our problem is colonialism. Or, to put it another way, the reconciliation of English common law traditions and indigenous traditions.

Which are not reconcilable.

Colonialism can not be reconciled with decolonization. Canada’s assertion of Dominion from sea to sea to sea can not be reconciled with indigenous assertion of sovereignty, anywhere in Canada, and certainly not within a s.35 Constitution Act framework.

Either Canada gets to tell aboriginal people what’s good for them, and impose it from above (again, the only form of reconciliation ever even contemplated in Canada), or it doesn’t get to do that. Either Canada gets pipelines because the government wants pipelines, or a minority aboriginal population gets a veto. The Supreme Court, of course, would have no such thing. The vision they have put before us is of good-faith negotiations to balance majority and minority rights. And that’s probably as close to decolonization as we’re likely to get by the steam of a colonial institution, which is what the Supreme Court is.

Jody Wilson-Raybould is described as a “Kwakwaka’wakw Canadian politician.” I’ve met her and I’ve heard her speak about indigenous rights and self-determination. I know from personal experience that she can deliver a decent speech. At the UN this week, she said “let us make this the century of the world’s Indigenous peoples, one where Indigenous peoples, no matter where they live, deconstruct their colonial legacy and rebuild their communities.” Not a bad sentiment, that.

As a cabinet minister and Attorney General and a member of the Privy Council, Ms. Wilson-Raybould has sworn an oath to the Queen. Her sworn duty is to serve the Crown. That’s not just a principle or an abstraction or “aspirational.” It is backed by the full legal force of the state, and if she is derelict she can indeed be sanctioned by her government. And by her government, I don’t mean the Sovereign Kwakwaka’wakw Nation, which in any case is not recognized by Canada (just as the Tsilhqot’in Nation is not recognized) and has scant recourse should the good Minister of Justice happen to let them down.