Certainty for Whom?

Canada’s new Indigenous Rights Framework under fire

Claire Gilmore

Graffiti on rail bridge, Garden River First Nation. Photo: Fungus Guy [CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0)], from Wikimedia Commons

Following 2015’s high-profile election promise of a “new nation-to-nation relationship” with Canada’s Indigenous Peoples, on Valentine’s Day of this year Justin Trudeau announced a proposed new legislative framework to govern that relationship. In a short, impassioned speech, he said the framework will “breathe new life” into Section 35 of Canada’s constitution (which enshrines the rights and title of Aboriginal peoples).

Since then, the government has held 102 “engagement sessions” with 1,600 participants across the country. While some Aboriginal leaders see the plan as an important opportunity, serious concerns have emerged around both the framework itself and the engagement process.

In June, the Yellowhead Institute found that “nearly all of Canada’s proposed changes to its relationship with First Nation peoples neglect issues of land restitution and treaty obligations.” In a policy brief titled “Canada’s Indigenous Rights Framework: A (Bad) Proposal Emerges,” the Institute’s director, Hayden King, says, “On Aboriginal title, the legislation ‘may’ recognize it or its ‘coexistence’ alongside Crown title, instead of, you know, recognizing it (as courts have done). And on the United Nations Declaration on the Rights of Indigenous People (UNDRIP), Canada will ‘align with the articles’ of UNDRIP, as opposed to implementing them. This sort of hedging may be the enduring feature of the Trudeau government’s Indigenous relations.” In a June Yellowhead policy brief, Dr. Sherry Pictou (Mi’kmaw) wrote that “Indigenous Activists, myself included, contend that this new framework is just another rearticulation or reformulation of older policies of dispossession.”

At the Assembly of First Nations National Policy Forum on Affirming First Nations Rights, Title and Jurisdiction in September, elected Chiefs-in-Assembly put forward a resolution calling for a halt of the current federal initiative and “the development of a First Nations-led negotiation process to ensure implementation of the UN Declaration on the Rights of Indigenous Peoples and a joint action plan for that implementation.”

Clarity for corporate interests

In an October 2, op-ed on aptnnews.ca, Joyce Green and Gina Starblanket contend that the Framework is merely the latest in a string of “legislated ‘self’ governance approach” initiatives put forth by Liberal and Conservative governments since 1982 – all of which have “proposed a delegated subordinate municipal-style framework to replace the Indian Act,” and been largely rejected by First Nations. They argued that the Framework is really about the government finding “the processes to ensure ‘certainty,’” which they define as “clarity and predictability for non-Indigenous corporate investment interests.”

While the mainstream media has remained fairly quiet on the new framework, Indigenous grassroots organizations have been loudly sounding the alarm. Idle No More, Defenders of the Land, and Truth Before Reconciliation have put out the call for a mass mobilization against the framework, calling it “a threat to our survival as Indigenous Nations.”

Complicating the issue (or simplifying it, if you’re the federal government) is the precedent set in the recent Mikisew decision, in which the Supreme Court of Canada ruled that the legislative branch of the government does not share in the Crown’s legal obligation to consult Indigenous people prior to taking action that might impact Aboriginal and treaty rights and title. This decision seems to clarify that they can pass whatever version of the proposed legislation works best for them, without fear of repercussions in the courts.

Ottawa wants to table legislation before the Christmas break, so that it can pass before the next federal election in the fall of 2019. When the Committee on Indigenous Affairs meets in the new year, federal Minister Carolyn Bennett says they will consider amendments to the framework.

For more information see Canada’s Emerging Indigenous Right’s Framework: A Critical Analysis —Yellowhead Institute, June 5, 2018

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