(This article is part of a series analyzing the Canada Federal Government’s “10 Principles respecting the relationship with Indigenous peoples”. Click here to start over at the beginning.)
Principle #1 Reads:
1. The Government of Canada recognizes that all relations with Indigenous peoples need to be based on the recognition and implementation of their right to self-determination, including the inherent right of self-government.
Breaking it down
(We explain more about the bolded items below.)
- The relationship between the Crown and Indigenous people is to be based on the “recognition” and implementation by the Crown of the fact that Indigenous peoples have the right of self-determination.
- “Recognition” is to be the priority in renewed nation-to-nation relationships.
- The promise of s.35 of the Constitution mandates the reconciliation of the prior existence of Indigenous peoples in what is now Canada and the Crown’s assertion of sovereignty.
- UNDRIP calls for the Crown to respect and promote a full suite of Indigenous rights.
- The Constitution and legal order recognize that Indigenous peoples owned and governed the land before assertion and the relationships are based on this.
- All governments must shift their relationships with Indigenous peoples based on recognition and the right to self-determination. The Federal Government must change its operating practices and processes. First Nations must define and govern themselves as nations and governments.
What does this mean?
This first principle is the foundation of all that follows. It establishes as the basis of the relationship between the Crown and Canada’s Indigenous peoples the concept of “recognition”. That is, the acknowledgement by the Crown, in word and in deed, that First Nations have the right of self-determination because they owned and governed what is now Canada before the assertion of Crown sovereignty over that land.
In citing the “promise” of section 35, Principle 1 begins to lay the foundation of entrenching reconciliation (in the sense of reconciling Indigenous and Crown title) in the core of Canadian law: the Constitution. This is significant, and will be discussed more fully in the next Principle. In this context suffice to say that we would like to conclude that this signals a move by the government away from litigating title to negotiating title.
This Principle also gives an indication of how the government intends to treat the UNDRIP. It cites the express list of rights in that document, but does not in any way associate it with either Canadian law or government policy. Minister Wilson-Raybould was clear in her comments on the release of the Principles that the government is not taking the approach of recognizing the UNDRIP as binding. This will be a disappointment for some. However, both in the context of the legal status of UN declarations generally and the practical implementation of the approaches proposed by the Principles, it is doubtful that committing to the UNDRIP would make sense. As Wilson-Raybould intimated, no doubt with 30 years of title litigation in mind, such a document could become a significant distraction to “getting on with the job of improving the lives of Canada’s Indigenous peoples”.
The Constitution and Canada’s “Legal Order”
To say that the Constitution and Canada’s legal order “recognize that Indigenous peoples owned and governed the land before assertion” is both true and trite. Section 35 has entrenched this fact at the core of our legal system for 30 years: with what result? A “legal order” is not a static state of affairs and there is, we would argue, much in the Canadian legal order which is patently ignorant of the existence of unextinguished title. What this statement does do is assert that both the Principles and whatever actions the government takes pursuant to them are squarely within the law of the land and in keeping with legal traditions.
Changing How Government Operates
In the Minister’s call for the Federal Government, we think squarely targeting the bureaucracy, to “change their operating practices and processes” we see both great risk and immense potential. There is no doubt that fundamental change is required. INAC has always operated as the delivery mechanism of colonialism. It must stop doing so. Bureaucracies are behemoths with significant inertia, highly resistant to change. Can INAC be transformed into the agency that leads Canada into a post-colonial world? This, we think, will be the greatest challenge faced in implementing the Principles.
Empowering First Nations
Finally, this Principle concludes with a call to action to First Nations. Indigenous governments must step up to the plate by defining and governing themselves as nations and governments. We have spent many years working with First Nations to help them do this and know that it is a long, hard road. Generations of Indigenous people have been forced to live under a governance system that was designed to fail. Can they now, still largely operating under that system, suddenly act and operate as nations and governments? Our experiences working with Indigenous people and organizations has given us infinite confidence in their abilities, strength and intelligence, but we also hope that this call to action is backed up by the significant resources required to support Indigenous peoples in building their nations and governments.
Tell us what you think
What do you think of Principle 1? Is “recognition” the right principle to base First Nation-government relations on? Should the Federal Government entrench the UNDRIP in Canadian law? Can the Federal Government contribute to moving Canada into a post-colonial era? Do you agree with our analysis? What did we get wrong or miss?
We would love to hear what you think. Share your thoughts in the comments below.