Judith Sayers

The Prime Minister, Justin Trudeau, announced on February 14, 2018 that the Government of Canada will develop – in full partnership with indigenous peoples – a Recognition and Implementation of Rights Framework. 

He stated that “For too long, Indigenous Peoples in Canada have had to prove their rights exist and fight to have them recognized and fully implemented. To truly renew the relationship between Canada and Indigenous Peoples, the Government of Canada must make the recognition and implementation of rights the basis for all relations between Indigenous Peoples and the federal government.

He also said it was time to stop fighting over these rights in court.

To be clear, s. 35 of the Constitution Act of Canada recognizes and affirms aboriginal rights. So if s. 35 exists, why do we need a Recognition and Implementation of Rights Framework and law?

The problem lies with the federal and provincial governments and their reluctance to accept First Nation rights and often end up in court trying to protect them. So in reality because the governments cannot do their job, they need a framework, policy and legislation to make them do it.

As First Nations people, we know what our rights, and exercise them regularly. Many First Nations have done Traditional Use Studies (TUS) that set out their rights and where they exercise them in their territories. They are located through the use of GIS. Governments are very aware of this data and often have this data with the exception of Sacred/cultural sites which is confidential. First Nations use this as the basis of their consultations with government to identify their rights and why development cannot occur in certain areas.

First Nations have gone further to do Land Use Plans or Marine Use Plans to ensure that the areas they exercise their rights and their ecosystems that are integral to sustaining those rights are protected from development.

First Nations know their rights and title and it is up to governments to understand those rights.  The courts have been very clear that this is a responsibility governments must fulfil.

During the consultation process the government “assesses” rights and decides if there needs to be mere consultation or deep consultation. They get to decide how much they will accommodate them. When it is to their advantage, they use the justification test and abrogate or derogate from our rights in the public interest.  Such was the case in Kinder Morgan and Site C.  The government rationalized that these projects must go ahead in the greater public interest even though it meant totally abrogating rights.  Thus, people go to court to fight the government’s decision and sometimes First Nations win and sometimes they lose.  Too many times we have seen the government “justify development” for the greater public good.  I always ask, “at what point will we not be able to exercise our rights?”

Why couldn’t Justin Trudeau just instruct his bureaucrats to recognize and implement our rights as they should be without putting in place a framework and legislation?  If he is serious about recognition of rights and implementing the Universal Declaration of Rights (UNDRIP), wouldn’t that be a quicker and easier solution? Couldn’t he set up an independent tribunal to work out disputes about rights and how they can be protected?

The amendments to the Fisheries Act are out in bill C-68.  S. 2.4 requires the Minister “to take into consideration” the impact of his decision on s.35 rights. The section should read “the Minister shall take into consideration the impact of his decision on indigenous rights and ensure that they are protected”. Simple and easy. As it is now, the Minister can think about how his authorizations for development will impact on indigenous rights and do nothing about it and that goes against everything the Prime Minister has promised and his recognition initiatives.

Waiting for a framework and legislation is a long ways off when there are simple solutions available.

I wonder if Trudeau or any of his Minister talked to First Nations before setting out this plan for a Recognition and Implementation of Rights Framework. I never heard of any such initiatives. The Prime Minister says he wants to develop this “in full partnership with Indigenous People” yet didn’t bother to do so when he came up with the idea.  Maybe there would have been better or different solutions found.  This is just another example of the Prime Minister and his government trying to find solutions without working out mechanisms with them. So much for a Nation to Nation relationship when one Nation thinks they have all the answers for the other.

The problem with legislation is that First Nations are not part of the drafting process and don’t have final approval before it goes into the house and the Senate.  Nor can they approve any changes made along the way.  The legislation may be limiting and may define rights globally that don’t apply to every First Nation or not define others. There is danger in trying to do a melting pot solution if First Nations are not a part of every step of the way and give their CONSENT to any legislation.

Will the new process include an independent dispute resolution process if Canada and First Nation people don’t agree on what our rights are and there are sure to be disagreements?

Another initiative that has been underway for some months is Nation to Nation/Reconciliation tables.  There are over 50 of them across the country.  Is this new process going to duplicate those efforts or interfere with them in any way and why was another process needed?

Does Canada have enough resources both in manpower and money to ensure this process can work? First Nations will need to be resourced so they can participate in this process if it goes ahead.

There is not much detail on what the Framework will have in it.  The contents of the Framework will be determined through national engagement activities led by the Minister of Crown-Indigenous Relations and Northern Affairs. Engagement will continue throughout the spring, with the intention to have the Framework introduced in 2018 and implemented before October 2019.

While the results of this engagement will guide what the final Framework looks like, the federal government believes that, as a starting point, it should include new legislation and policy that will make the recognition and implementation of rights the basis for all relations between Indigenous

Provinces and the public will be part of this engagement because the PM said they need to be a part of it.  Does the public know what our rights are and why should they have a say over indigenous rights? We know there are people who want to do away with our rights and think there should be no differences between them and indigenous peoples. Will these kinds of engagements strengthen or widen the divide between indigenous peoples and non-indigenous people and will it bring out the racism that we saw during the trial of Gerald Stanley for killing Colten Boushie?

The Framework can also include new measures to support the rebuilding of Indigenous nations and governments, and advance Indigenous self-determination, including the inherent right of self-government so indigenous peoples can control their own destinies.

I sometimes wonder if governments understand the concept of self determination and the inherent right of self government. I heard Minister Jane Philpott say at the Joint Gathering of First Nations and the federal government say that there would be full realization of the right of self Determination.  This would mean separation from Canada in our own State.  I assume this is why the want to legislate self determination so they can define it and limit it from its true international meaning.

One thing is certain that implementation of our rights have to be done quickly. For instance, the T’aaqwiihaak Nations who won the Ahousaht case 9 years ago are still trying to work with the Federal government what a reasonable right to a fishing livelihood is. This is far too long. The Tsilqot’in won their aboriginal title way back in 2014 and are still waiting to implement that decision.  We cannot wait to put in place a framework, legislation and policy in order to implement rights that have been recognized in court.  We cannot have more rights destroyed like the burial/sacred sites that will be inundated in Site C or put at risk many vital rights by Kinder Morgan’s pipeline. I did not hear anything from the Prime Minister on the interim.

The recognition of right framework necessarily must include the right to land, resources and free prior and informed consent (FPIC). Again, the Prime Minister did not mention settling the longstanding title to land, resources and water but rather talked of drinking water, suicides and housing. All of these must be part of it and I wonder if we can agree on FPIC.

Is the new proposed Framework and legislation a good thing?

It could be if there is a full partnership with First Nations and they have free prior and informed consent on anything worked out including the legislation.  If it can be done in quick order and not go on forever like the BC Treaty process. It may be good if First Nations are fully resourced to participate in the process and the government of Canada devotes enough staff to engage the 633 First Nations across this country.

It would be a bad thing if the government doesn’t listen to ALL First Nations and does not get their free prior and informed consent and create legislation that has to be challenged in court when the whole object of this new process is for “collaboration to become the norm and court cases the anomaly.” There may have to be an opt in provision for people who want to be a part of the legislation.

The Prime Minister wants to build greater trust and do something different with indigenous peoples.  If he continues to do things on his own without truly working with indigenous peoples he will not build trust.  If he doesn’t do what he says he will do he will not build trust.  If he doesn’t take immediate action to recognize rights in ways the government can and should in the interim he will not build trust.  Indigenous peoples in this country have suffered because of government’s denial of our rights and title.  Indigenous peoples in this country have also suffered because their rights have been limited and their access to lands, waters and resources have been restricted when they are the true owners.

Leaders across this country have expressed doubt about this process and others cautious optimism.  If First Nation had been asked what needs to be done to recognize and implement their rights I know their would have been different solutions and mechanisms.  If we are moving into a new era, First Nations need to be asked first, not as an afterthought.