Perhaps in keeping with its professed goal of reconciliation with Canada’s aboriginal people, the federal government chose Valentine’s Day to announce the creation of a new legal framework for the rights of indigenous peoples in Canada.
Prime Minister Justin Trudeau announced in the House of Commons yesterday that the government of Canada will develop, in partnership with First Nations, Inuit and Métis Peoples, a “Recognition and Implementation of Rights Framework.”
The proposed framework would “include new measures to support the rebuilding of Indigenous nations and governments, and advance Indigenous self-determination, including the inherent right of self-government,” the prime minister’s office said in a press release.
Advocacy of indigenous self-government, and a new relationship between the Crown and Canada’s indigenous peoples, is not new. Douglas Sanderson, an associate professor in the University of Toronto’s Faculty of Law, whose research areas include aboriginal and legal theory, says he wasn’t surprised by the announcement, following years of the government laying the groundwork for change through statements of principles and consultations. However, he notes that both the civil service and the public need to be prepared for any sweeping changes in legislation affecting indigenous peoples.
The relationship between the federal Crown and Canada’s aboriginal peoples “is a very complicated situation that will take a long time to get out of,” Sanderson told Legal Feeds. The federal Crown’s relationship with First Nations is governed by the Indian Act, and the only bodies the Crown can enter into agreements with are local Indian bands, of which there are 650 in Canada, he notes.
“What the feds need to do if they’re going to advance a self-government agenda is to formulate legislation that allows them to constitute other bodies [and] pass legislation to substantiate collectives,” or confederacies of indigenous peoples, with which the Crown can negotiate.
“One thing I know for certain is that the Crown is not interested in sorting out complex issues 650 times,” he says.
Prime Minister Justin Trudeau indicated yesterday that the new framework would not necessarily include the Indian Act, which indigenous relations minister Carolyn Bennett has described as a “straitjacket.” Under it, the federal government exercises direct control over local bands and their chiefs, including who can take office and for how long, says Sanderson. First Nations do not have authority to tax and, thus, they cannot control their environments or provide for their citizens. More than 100 Canadian indigenous communities are currently under boil-water advisories, he notes. The communities can’t raise the money to clean the water and the government isn’t paying for it, either.
“The feds are [now] trying to set up a legislative basis for a new relationship not based on bands but on larger groups of governments [such as confederacies of First Nations] and create the bases for these entities to exist,” Sanderson says. First Nations were historically independent to some extent, he notes, but they also existed within larger groups of kin who shared a common culture and language. A multitude of bands could be reduced to a handful of confederacies with whom the Crown could negotiate.
“But the real question is by what financial means will these governments exist?” he asks. Will the federal government develop a new formula relying on the current system of transferring money to Indian bands or will indigenous peoples “actually get to act like governments,” taxing their citizens and providing for them through generated revenues?
Sanderson notes several possible models for providing the financial means of support. One is through the country’s equalization formula that assists poorer provinces, such as in the Atlantic region.
“First Nations could become part of that formula,” he says.
A more complicated formula, because it is Crown land, is for indigenous peoples to obtain jurisdiction over resource development of northern lands. Under this scenario, First Nations could receive monies paid by resource-development companies, and then pay into Canada’s equalization plan. The provinces would need to agree to this, Sanderson says, since they would give up jurisdiction over their northern lands, most of which are included in the series of numbered treaties that Canada signed with aboriginal peoples between 1871 and 1921.
However, the provinces “would understand they would be making up their losses,” since First Nations would be receiving the income previously received by the provinces through taxation of resource development on their lands and paying into the equalization formula instead of the provinces.
“It would incentivize the [resource] development,” he says, including building mines, developing hydro projects and granting timber licences. As the beneficiaries of resource development, First Nations would “share this wealth with everyone else. It’s the opposite of the system we have now, where First Nations have no incentive to say yes [to development] because they get nothing from it.”
Regardless, a new legal framework won’t be developed overnight.
“We have to allow the feds some time to begin to unravel the chain of problems that’s developed,” Sanderson cautions. “We need to start moving in the right direction; but it will take a long time to figure out how to address the many and complicated issues we are faced with today.”
