A new method of negotiation the federal government is using with Indigenous nations to weaken the grip of colonial laws is gaining momentum.
The number of ‘Recognition of Indigenous Rights and Self-determination Discussion Tables’ — called ‘rights and recognition tables’ for short — has jumped from around 20 in July 2016 to over 50 today, said Joe Wild, the top public servant overseeing treaties at Indigenous and Northern Affairs Canada (INAC).
The tables represent 300 Indigenous communities with a total population of more than 500,000 people, said Wild, whose title is ‘senior assistant deputy minister for treaties and Aboriginal government’.
“There’s another 20 to 25 that are kind of in the pipeline that we’re aware of, and (that we) are kind of having to figure whether there’s something there that we want to move forward with or not,” said Wild.
“In other words, the 50 will continue to grow.”
Since 1973, whenever an Indigenous nation wanted to negotiate its competing claims with federal and provincial governments, it had to enter what’s called the ‘comprehensive claim process.’
These talks are meant to lead to ‘modern-day land claim agreements,’ which are different from historical treaties signed in the colonial and Confederation eras.
But comprehensive claim negotiations have been criticized for being extremely long and inflexible.
Their average length is 18 years and there are often irreconcilable differences over what should be on the table, especially if the two sides disagree on whether another treaty or deal from the past had already resolved a disagreement.
And many people – including people in the Liberal government – say parts of the policy governing comprehensive claim negotiations do not recognize Indigenous nations as nations with the full set of rights the Canadian courts say they have.
In the much newer rights and recognition tables, which began in July 2015, the minister for INAC – on the advice of a steering committee of deputy ministers – can enter into preliminary agreements with Indigenous nations, putting them on the path towards a final treaty.
And the parties can skip the step of writing an ‘agreement-in-principle’ on the way to writing a final agreement, which is considered a procedural necessity in comprehensive claims negotiations.
The agreements also can deal with individual topics without losing the prestige of being treated as treaty negotiations, meaning a dialogue between two nations, according to Wild.
“We’re approaching things from a blank page,” he said. “We’re looking to have a conversation with the Indigenous group about how we build a process together and what are the kinds of products we look to build. We’re just not getting hung up on what we label those products.
“Some folks would want to call the agreement that we’re getting towards a treaty, some would want to call it a relationship agreement, some would want to call it a reconciliation agreement, some call them self-government agreements – it doesn’t really matter what the label is. It’s about finding a way to help actualize their vision of self-determination.”
The tables have already borne fruit: INAC has signed 16 agreements that began as talks at the rights and recognition tables.
They include preliminary agreements with the Tsilhqot’in First Nation, the Heiltsuk First Nation and the Manitoba Métis Federation to work towards reconciliation agreements.
Others are specific to one kind of activity, like the deal signed with the Coastal First Nations in B.C. to jointly manage fisheries with the federal and provincial governments.
INAC would not provide a full list of the agreements because some of the communities involved are still reviewing them.
Wild said that after INAC examines the remaining 20 to 25 potential tables, pretty much all Indigenous Peoples who want to have a discussion with the Crown about their competing claims will be in some kind of venue to negotiate their claims.
Some of the Indigenous Peoples who are at the rights and recognition tables now include those with historical treaties – meaning agreements signed before 1973 when the comprehensive claim process began – and those who have never signed an agreement with the Crown, he said.
Some Indigenous Peoples may join forces at one table because of language or kinship ties, while others unite because of prior political arrangements that brought them together, said Wild.
INAC does not have an internal definition of an Indigenous nation because there is no consensus from an Indigenous perspective, said Wild.
“Our position on nation … is about a process of assisting Indigenous communities to have that dialogue internally among themselves on how they see it.
“We’re not coming at that with a prescriptive approach.”
Prime Minister Justin Trudeau praised the rights and recognition tables during a speech last Thursday to a forum in Ottawa of Indigenous Peoples who already have modern land claim agreements.
The tables will allow Indigenous communities to leave behind rigid, paternalistic rules and jointly create political structures that recognize rights, interests and needs, Trudeau said, according to a transcript provided by his office.
Indigenous Peoples “made it clear that there are different paths to self-determination, different ways to transition to self-government, and different ways to rebuild nations,” he said.
The Kitigan Zibi Anishinabeg First Nation is one of the communities that has entered a rights and recognition table.
The Algonquin reserve in Quebec is deciding on whether to sign a memorandum-of-understanding (MOU) with INAC to join one.
There are tough issues ahead. The Kitigan Zibi don’t want the any negotiations to include the possibility their claims can be extinguished, and they also have a land claim filed in Ontario courts that covers Parliament Hill and a large section of Ottawa.
But the Liberal government has staked the Indigenous portfolio on making measurable advances towards reconciliation across the country; Trudeau routinely says the relationship with Indigenous Peoples is the country’s most important.
The format of the rights and recognition tables might provide both sides with the flexibility they need.
“We’re open to the discussion (over an MOU),” said Kitigan Zibi Chief Jean-Guy Whiteduck in a recent interview.
“Dialogue is better than litigation, which can take a long time too.”