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CANADIAN RACE RELATIONS FOUNDATION

THE RELATIONSHIP BETWEEN CANADA AND INDIGENOUS PEOPLES: WHERE ARE WE NOW? Professor Naiomi Metallic

Schulich School of Law Dalhousie University October 2019


The Relationship between Canada and Indigenous Peoples: Where are we? Naiomi Metallic Chancellor’s Chair in Aboriginal Law and Policy and Assistant Professor Schulich School of Law, Dalhousie University

A. Introduction

Owing in large part to the Truth and Reconciliation Commission Final Report,1 we seem to be having more discussions today about Indigenous issues, including about establishing a nationto-nation relationship and recognizing and implementing inherent rights and Indigenous laws. These are not new subjects; some people have been discussing them for many years. It does seem however, that there are more people joining the conversation today. This is a positive development. There are many questions that arise in these dialogues, such as: What does reconciliation mean? What does a nation-to-nation relationship look like? How do we make meaningful change in the next 150 years of this country? In having these discussions, it is important for all of us to appreciate where we are at this moment in our nation’s history in terms of the relationship between the Canadian state and Indigenous peoples.2 I am a firm believer that knowing where you now are and where you have been is extremely helpful in figuring out how to get to your destination. Therefore, my small contribution to this collection is to attempt to take stock of where we have been and where we are in the hopes of facilitating better dialogue on where we should be doing.

B. In the era of Renewal and Renegotiation

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Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future - Summary of the Final Report of Truth and Reconciliation Commission of Canada (2015) (TRC Final Report). 2 I generally use the term “Indigenous peoples” to refer to all peoples who descend from the original inhabitants of these lands as this is the term gaining prominence internationally to refer to first peoples. It is synonymous with the term “Aboriginal peoples” which was the terminology used by Report of the Royal Commission on Aboriginal Peoples in 1996 (see infra note 3 (RCAP)) and is also the term used in s. 35 the Constitution Act, 1982, and defined to include “the Indian, Inuit and Métis peoples of Canada” (at s. 35(2)). The term “First Nations” is now commonly used instead of “Indian”, however, the latter term is still in use given the continued existence of the Indian Act. When referring to RCAP or the Constitution Act, I use the “Aboriginal” and “Indigenous” people interchangeably.

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According to the 1996 Report of the Royal Commission on Aboriginal Peoples (RCAP), we are currently in the era of ‘Renewal and Renegotiation’. In its comprehensive review of the relationship between Aboriginal People and the Canadian government, RCAP attempted to describe the changes in this relationship by organizing eras of time by major themes. Four eras were identified. The first era, called ‘Separate Worlds’ referenced the pre-contact period, when, for thousands of years, Indigenous peoples lived on this continent as 50-70 distinct nations with their own traditions, cultures, language and legal systems. For their part, Europeans lived on their own continent, made up of different nations with their own traditions, cultures, language and legal systems.3 Following contact, RCAP characterizes the next two hundred years as the era of ‘Nation-to-Nation’ relations (from 1600 to mid-1800s).4 This can come as a surprise to some people, who may have believed that, upon arrival, Europeans immediately set upon a course of attempting to ‘conquer’ the Indigenous peoples of these lands.5 On the contrary, the themes animating this period include friendship, intermarriage, barter, and trade and military alliances. Further, the dealings between representatives of the British Crown and the Indigenous peoples they encountered, including the issuance of the Royal Proclamation of 1763 and the signing of various treaties, evidencing clear recognition of Indigenous peoples’ status as nations, their right to self-determination and their claims to the territory.6

Following this period, however, came a much darker period that RCAP has called the era of ‘Domination & Assimilation’, spanning the mid-1800s to the 1950s.7 This period roughly coincides with the first 100 years of Confederation. Colonial governments, and later the federal

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See Report of the Royal Commission on Aboriginal Peoples (RCAP Report), Vol. 1, Looking Forward, Looking Back, Chap. 4, “Stage One: Separate Worlds”. 4 Ibid., Vol. 1, Chap. 5, “Stage Two: Contact and Co-operation”. 5 As noted by Chief Justice McLachlin for the Supreme Court of Canada in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 at para. 25: “Put simply, Canada’s Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. … The honour of the Crown requires that these rights be determined, recognized and respected.” 6 See TRC Final Report, supra note 1, pp. 195-201 and John Borrows, “Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government,” in Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference (Vancouver: University of British Columbia Press, 1997), 155-172. 7 RCAP Report, supra note 3, Vol. 1, Chap. 6, “Stage Three: Displacement and Assimilation”.

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government, segregated First Nations on small and less-than-desirable parcels of land (reserves). The aim was that they might eventually become extinct from disease and starvation or be absorbed into mainstream culture.8 During this period, the federal government ignored the plight of the Inuit and Métis and they were left to fend for themselves despite significant displacement from their traditional lands and resources.9 On reserves, First Nations were barred from exercising their traditional subsistence livelihoods and federal rations to alleviate starvation were provided sparingly.10 Further, the federal government pursued a policy of cultural genocide through sending thousands of Indigenous children—First Nation, Métis and Inuit alike—to residential and day schools.11 In addition, the Indian Act and related policies were employed to revoke the “Indian status” of thousands of First Nations men, women and children through several arbitrary identity laws, among other assimilatory policies.12

RCAP tells us that we started to turn the page on this dark era in the 1950s when we moved into the era of ‘Renewal and Renegotiation’. RCAP describes this present stage as a “time of recovery for Aboriginal people and cultures, a time for critical review of our relationship, and a time for its renegotiation and renewal.”13 In the following sections, I will examine what I see as six major milestones that mark this era, namely: (1) amendments to the Indian Act in 1951; (2) the 1969 White Paper Policy; (3) the 1973 Calder Decision; (4) Section 35 of Constitution Act, 1982; (5) the 1992 Charlottetown Accord; and (6) the 1996 RCAP Report itself. My aim is to show how these events were improvements over the previous era of ‘Domination and Assimilation’, but also to draw attention to the fact that significant problems remain to be 8

Ibid. at 136. In both cases, declarations from the courts were required to for Canada to recognize any responsibility to these groups pursuant to s. 91(24) of the constitution. See Reference re: British North America Act, 1867 (UK), s 91, [1939] SCR 104 (Re Eskimo Reference) and Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12. 10 Hugh Shewell,‘Enough to Keep Them Alive’– Indian Welfare in Canada, 1873-1965 (Toronto: University of Toronto Press, 2004) at 327-329. 11 See TRC Final Report, “The History”, supra note 1 at 37-135. 12 For more information on sordid history of ‘Indian status’ Pameaa Palmater, Beyond Blood – Rethinking Indigenous Identity (Purich Publishing, 2011); Bonita Lawrence, "Real" Indians and Others: Mixed-Blood Urban Native Peoples and Indigenous Nationhood (Vancouver: University of British Columbia Press, 2004); and Val Napoleon, “Extinction By Number: Colonialism Made Easy” (2001), 16 No 1 Canadian Journal of Legal Studies 113. 13 RCAP, “Highlights from the Report of the Royal Commission on Aboriginal Peoples – People to People, Nation to Nation” online: www.aadnc-aandc.gc.ca/eng/1100100014597/1100100014637. 9

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addressed. These shortcomings point us in the direction we need to be going and tells us that there is a lot of work left to do.

(1) Amendments to the Indian Act in 1951

Following World War II, Canada—like many countries throughout the world—experienced a shift in its social outlook. Revulsion to the treatments of Jewish people and other groups persecuted by the Nazis spurred increased concern for equality and human rights in Canada and beyond.14 This can be seen through the passing of the United Nations Universal Declaration on Human Rights in 1948.15 As well, around this time, both the federal and provincial governments began paying greater attention to individuals’ rights to essential services, laying the legislative foundation for the social safety net.16 With respect to Canada’s relationship with Indigenous peoples, this translated into a growing awareness by Canadians of the impoverished plight of First Nations and a desire to ameliorate their condition.17 As a result, a Joint House of Commons and Senate Committee on Indian Affairs was appointed with a mandate to inquire into the policies of the Department of Indian Affairs18 and the general conditions of Indians living on reserves.19

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UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: www.refworld.org/docid/3ae6b3712c.html. 15 Hugh Shewell and Annabel Spagnut, “The First Nations of Canada: social welfare and the quest for selfgovernment” in Social Welfare with Indigenous Peoples, ed., Dixon, J., and Scheurell, R.P., London: Routledge, 1995, at 2 (“Shewell and Spagnut”). 16 See G.V. Harten, G. Heckman and D.J. Mullen, Administrative Law - Cases, Text, and Materials, 6th ed. (Edmond Montgomery Publications: 2010), Chapter 1, at 3-4 and 8. 17 Shewell and Spagnut, supra note 15 at 3. 18 At the time, the department was a branch of the Department of Mines and Resources. Indian Affairs has been housed in different Ministries at different times, and eventually became its own department, paired with the federal responsibility to the territories and the north. In the last 10 years, the Departments named has changed from “Indian Affairs” to “Aboriginal Affairs” to “Indigenous Affairs” and very recently, the Trudeau government announced the creation of two new departments to replace it. For the purposes of this paper, and to be consistent with its name from most of the period of ‘Renewal and Renegotiation’ I will refer to it as “Indian Affairs.” For more on the recent changes to Indian Affairs, see Naiomi Metallic, “Why administrative changes won’t kill the Indian Act” in Policy Options, Sept. 20, 2017, online: policyoptions.irpp.org/magazines/september-2017/why-administrative-changeswont-kill-the-indian-act/. 19 Shewell and Spagnut, supra note 15 at 3.

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The Committee’s reports and recommendations consistently focused on the need to advance Fist Nations to full citizenship and equality.20 At the time, however, equality was conceived as ‘formal equality’, the notion that everyone should be treated identically.21 Pursuant to this understanding, First Nations ought to be treated the same as other citizens and their legal status as “Indians”, as well as their different legal entitlements arising therefrom (treaties, reserves, the Indian Act, etc.), was often blamed for their plight (as opposed to a century of colonial and assimilatory policies). Viewed in another light, the objective still remained assimilation, but based less on denigrating Indigenous cultures than on viewing mainstream Euro-Canadian culture as the pinnacle of social ordering.22

The Committee’s recommendations influenced several amendments to the Indian Act in 1951. By this point, the Indian Act had existed since 1876 and provided the legal basis for several assimilative policies.23 The 1951 amendments removed some of the more blatant forms of discrimination in the Act, including the prohibition of hiring lawyers to vindicate land rights and other collective claims,24 the prohibition against Indigenous spiritual practices,25 and the provisions that automatically disentitled a First Nations person from recognition under the Indian Act (and consequently the right to live on reserve) upon becoming a doctor, lawyer,

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Ibid. Hogg, P., Constitutional Law of Canada (5th ed.) (loose-leaf), Chap. 55, at para. 55.6(e). 22 As in earlier times, the necessity for Indians to be assimilated was a given, but, as noted by Shewell and Spagnut, the tone of this assumption had changed: “It was no longer a question of subjugating Indians and of degrading their cultures, but of extending to them their rightful opportunities to be full and equal citizens of Canada.” See Shewell and Spagnut, supra note 15 at 3. 23 See Indian Act, SC 1876, c 18. The antecedent to the Indian Act passed by Parliament, in place from 1869 to 1876, was An Act for the gradual enfranchisement of Indians, the better management of Indian Affairs, and to extend the provisions of the Act 31st Victoria, Chapter 42, SC 1869, c. 6 (32-33 Vict.). 24 See Indian Act, RSC 1927 c 98s. 141: “Every person who … receives, obtains, solicits or requests from any Indian any payment or contribution or promise of any payment or contribution for the purpose of raising a fund or providing money for the prosecution of any claim which the tribe or band of Indians to which such Indian belongs … shall be guilty of an offence and liable upon summary conviction … to a penalty not exceeding two hundred dollars … and to imprisonment for any term not exceeding two months.” 25 See, for example, Indian Act, RSC 1927 c 98, s. 140: “Every Indian or other person who engages in, or assists in celebrating or encourages either directly or indirectly another to celebrate any [1] Indian festival, dance or other ceremony of which the giving away or paying or giving back of money, goods or articles of any sort from a part, or is a feature, whether such gift of money, goods or articles takes place before, at, or after the celebration of the same, or [2] who engages or assists in any celebration or dance of which the wounding or mutilation of the dead or living body of any human being or animal forms a part or is a feature, is guilty of an offence and is liable on summary conviction to imprisonment for a term not exceeding six months and not less than two months.” 21

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getting a university degree, joining the holy orders, and joining the military (often called the ‘compulsory enfranchisement provisions).26

Despite these amendments, other highly problematic provisions in the Indian Act remained, not least among these were the provisions on maintaining residential schools.27 Further, despite the removal of some of the compulsory enfranchisement provisions, the most notorious among these—the provision that robbed First Nations women (and their children), who married nonFirst Nation men of their ‘Indian status’—was left in the Act.28 Moreover, a new provision disentitling First Nations people whose mothers and grandmothers were both non-First Nation (known as the ‘double-mother rule’) was added by the 1951 Indian Act.29 (Both these rules were repealed in 1985 and replaced by new ‘Indian status’ rules. However, these rules maintain Canada’s exclusive control over who is an “Indian” under the law and introduced what is effectively a 50% blood quantum rule, which continues to have an adverse impact on First Nations women and their descendants and has been the subject of numerous Charter and human rights challenges over the last 10 years.30)

See Indian Act, SC 1867 c 18 at s. 86(1): “Any Indian who may be admitted to the degree of Doctor of Medicine, or to any other degree by any University of Learning, or who may admitted by any Province of the Dominion to practice either as an Advocate or as a Barrister or Counsellor or Solicitor or Attorney or to be Notary Public, or who may enter Holy Orders as a Minister of the Gospel, shall ipso facto become and be enfranchised under this Act.” 27 Indian Act, SC 1951, c. 29, ss. 113-122. 28 Ibid., s. 108(2): “On "the report of the Minister that an Indian woman married a person who is not an Indian, the Governor in Council may by order declare that the woman is enfranchised as of the date of her women. marriage and, on the recommendation of the Minister may by order declare that all or any of her children are enfranchised as of the date of the marriage or such other date as the order may specify.” 29 Ibid., s. 12(1)(iv): “the following persons are not entitled to be registered, namely… (iv) is a person born of a marriage entered into after the 4th day of September, 1951, and has attained the age of twenty-one years, whose mother and whose father’s mother are not persons [entitled to registration under the Act].” 30 See McIvor v. Canada (Registrar of Indian and Northern Affairs), [2007] 3 C.N.L.R. 72 (BCSC), rev’d [2009] 2 C.N.L.R. 236 (BCCA), leave to appeal refused [2009] S.C.C.A. No. 234; Descheneaux c. Canada (Procureur Général), 2015 QCCS 3555; Gehl v. Canada (Attorney General), 2017 ONCA 319; Matson et al. v. Indian and Northern Affairs Canada, 2013 CHRT 13 and Andrews et al. v. Indian and Northern Affairs Canada, 2013 CHRT 21; Renaud, Sutton and Morigeau v. Aboriginal Affairs and Northern Development Canada, 2013 CHRT 30; Nancey, Rainville, Dennis v. Aboriginal Affairs and Northern Development Canada, 2014 CHRT 20; Beattie et al. v. Aboriginal Affairs and Northern Development Canada, 2014 CHRT 1; and Canada (Human Rights Commission) v. Canada (Attorney General), 2016 FCA 200 on appeal to the Supreme Court of Canada (hearing date: November 28, 2017). 26

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There was one further major amendment made to the Indian Act in 1951 that came as a result of the Committee’s recommendations. The Committee found that First Nations on reserves were excluded from many federal social programs and most provincial and territorial services that were provided to other Canadians. The Committee’s response was to recommend that provinces and territories be more involved in delivering and funding social services to First Nations.31 Canada’s initial response to this was to add s. 88 (then s. 87) to the Indian Act, which delegates any matters not covered by a treaty, the Indian Act or its regulations to provincial laws of general application.32 As an attempt to get the provinces to assume fiscal and legislative control over the provision of services to First Nations on reserve, the provision was a failure. The provinces were unwilling to extend their legislation and services to First Nations unless the federal government picked up the tab.33 In what has become a long-running game of ‘hot-potato’ between the federal and provincial governments, where neither wants jurisdiction over the delivery of programs and services to Indigenous peoples, Canada was then forced to attempt to negotiate fiscal arrangements with the provinces. The federal government was only successful in reaching agreements for the extension of provincial child welfare laws with all the provinces (which hastened the so-called ‘Sixties Scoop’34), except in the case of

Canada, INAC, Income Assistance Program – National Manual, 2005, at 13. The provision reads: “Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act or the First Nations Fiscal Management Act, or with any order, rule, regulation or law of a band made under those Acts, and except to the extent that those provincial laws make provision for any matter for which provision is made by or under those Acts.” It appears there was little discussion and debate about the meaning of the s. 88 at the time it was passed, and there is little on the public record providing a clear explanation of the government’s rationale for it. Kerry Wilkins suggests that, at minimum, it was intended to clarify that Indians had the right to sue in tort, contract and for debts that came due, as well as to address and acknowledge the widespread sense that provincial law should not constrict treaty rights. Wilkins also suggests that a driving factor behind the provision was the Joint Committee’s strong emphasis that the “provinces had a role to play in achieving the recognized long-term goal of assimilation – or in later idiom, “integration” – of the Indian peoples into mainstream society.” See Kerry Wilkins, “Still Crazy After All These Years”: Section 88 of the Indian Act,” (2000) 38(2) Alberta Law Reports 458 at 460-463. 33 See Sonia Harris-Short, Aboriginal Child Welfare, Self-Government and the Rights of Indigenous Children – Protection the Vulnerable Under International Law (Ashgate Publishing Company: Burlington, England, 2012) at 44; Patrick Johnson, Native Children and the Child Welfare System (Canadian Council on Social Development in association with James Lorimer & Company: Toronto, 1983) at 7-16. 34 For more information on the ‘Sixties Scoop’, see Brown v. Canada (Attorney General), 2017 ONSC 251. 31 32

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Ontario, which agreed to extend a number of essential services to First Nations on reserve on the basis of 10/90 cost-sharing agreement with the federal government.35

Outside the area of essential services, s. 88 and subsequent Supreme Court of Canada interpretations of s. 91(24) that similarly permit provincial laws to have broad impacts on Indigenous lands and resources,36 have been strongly criticized as eroding important protections for Indigenous lands, resources and jurisdiction promised in the Royal Proclamation of 1763 and the various treaties from incursion by local governments.37

Finally, it bears emphasizing that except for a few minor amendments,38 the Indian Act largely remains in force today as it stood in 1951! Nor has the federal government significantly exercised its s. 91(24) legislative jurisdiction beyond the Indian Act with a view to replacing it.39

(2) 1969 White Paper Policy

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See the 1965 Memorandum of Agreement Respecting Welfare Programs for Indians between the Government of Canada and the Government of Ontario, which instituted a cost sharing arrangement respecting the application of provincial welfare laws to Indian reserves in the province. See also the Indian Welfare Services Act, RSO 1990, c I.4. The agreement relates to social assistance, daycare, child welfare, but not other essential services like health and education. 36 Section 88 was initially regarded the basis for the application of provincial laws to Indians. However, the Supreme Court of Canada clarified in Dick v. La Reine, [1985] 2 SCR 309 that provincial laws that do not touch on the core of “Indianess” apply to Indians ex proprio vigore (of their own force). See also R. v. Morris, [2006] 2 SCR 915. 37 See John Borrows, “Canada’s Colonial Constitution” in The Right Relationship – Reimagining the Implementation of Historical Treaties, ed. by John Borrows and Michael Coyle (Toronto: University of Toronto Press, 2017). 38 These include those changes to the Indian status rules (An Act to Amend the Indian Act, SC 1985, c 27 (Bill C-31) and Bill C-3: Gender Equity in Indian Registration Act, SC 2010, c 18), and Bill C-428, An Act to amend the Indian Act (publication of by-laws) and to provide for its replacement, which provided for the removal of outdated or antiquated clauses in the Indian Act (see Department of Aboriginal Affairs and Northern Development Canada website: http://www.aadnc-aandc.gc.ca/eng/1422387592930/1422387686680 for a description of the changes). 39 There have been a few acts that seek to supplement Indian Act provisions on land, monies and taxation, including providing some additional control to First Nations (such as the First Nations Land Management Act, SC 1999, c 24, First Nations Fiscal Management Act, SC 2005, c 9, First Nations Oil and Gas and Moneys Management Act, SC 2005, c 48First Nations Financial Transparency Act, , SC 2013, c 7, First Nations Goods and Services Tax Act, SC 2003, c 15, s 67) as well as to fill in some legislative gaps (such as Family Homes on Reserves and Matrimonial Interests or Rights Act, SC 2013, c 20, Safe Drinking Water for First Nations Act, SC 2013, and First Nations Elections Act, SC 2014, c 5), but these do not make a up comprehensive alternative to the Indian Act. Instead they are only piecemeal solutions: for more on this see Naiomi Metallic, “Ending Piecemeal Recognition of Indigenous Nationhood and Jurisdiction: Returning RCAP’s Aboriginal Nation Recognition and Government Act” in Redefining Relationships: Indigenous Peoples and Canada (forthcoming in Saskatoon: Native Law Center, 2017).

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In June 1969, the Liberal government of Pierre Elliott Trudeau tabled its Statement of the Government of Canada on Indian Policy, known as “the White Paper”. This policy paper recommended fundamental changes to the status of Indian people in Canada, notably the end of the distinct status for Indians, the dissolution of Indian Affairs, the repeal of the Indian Act and its replacement with an Indian Lands Act, with the objective of facilitating First Nations’ absorption into mainstream society.40 Consistent with the ethos of formal equality that animated the Joint Committee’s recommendations, the government justified this proposal as a progressive move in tune with social reform and civil rights.

The significance of this milestone is not the proposal itself, but the reaction to it. Contrary to the federal government who viewed it as progressive, First Nations viewed the proposal as the ultimate attempt at assimilation.41 Anger towards the White Paper fuelled a national First Nations resistance movement and the creation of regional and national advocacy bodies, including the National Indian Brotherhood (which would eventual become the Assembly of First Nations). First Nation opposition was so strong that the federal government withdrew the proposal and declared a formal end to its assimilation policy in 1971.42 But the fire that was lit in response to the White Paper continued to burn strong and in subsequent years we would begin to see First Nations asserting Aboriginal title and Aboriginal and Treaty rights in the courts, demanded seats at the negotiation table to settle outstanding claims, and calling for self-government.43

While the Indigenous resistance and rights movement fueled by the White Paper and Canada’s subsequent disavowal of assimilationist policies are positive impacts of this milestone, it is important to understand that the ‘slate’ had not been entirely wiped clean of assimilation. As noted in the previous section, assimilation in the guise of ‘formal equality’ informed the attempts by the federal government to have the provinces assume responsibility for essential

40

Shewell and Spagnut, supra note 15 at 5. See Johnson supra note 33 at 6-7. 42 Ibid. 43 Ibid. 41

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services on reserves. When these attempts largely failed, and faced with growing public outcry over poverty in First Nations communities,44 Indian Affairs obtained Treasury Board approval in 1964 to spend federal funds for social assistance on reserve using the rates and standards enacted by the provinces (a practice often referred to as ‘comparability’).45 Indian Affairs staff subsequently adapted provincial laws and policies in order to create federal policy manuals to apply on reserves in different provinces. While these services were initially delivered by Indian Affairs staff, over time they were devolved by Canada to the First Nations and their staff through the introduction of funding agreements between Indian Affairs and First Nations.46 Although intended as a temporary measure, this practice of ‘regulating’ via policy manuals modelled on provincial rates and standards continues to the present day and has been expanded to virtually all essential services provided on reserve.47 Unless a First Nation has been able to negotiate a self-government agreement (and very few have, as discussed further below), the vast majority of day-to-day programs and services provided by the First Nation are provided in this manner.

Thus, in large measure, the assimilationist objective of having provincial norms apply to First Nations was achieved indirectly through what was intended as a stop-gap measure and has become the status quo despite Canada having declared an end to its formal assimilation policy nearly 50 years ago. The problem here is more than symbolic; the continued imposition of the ‘comparability’ standard has been criticized as culturally inappropriate and contributing to high rates of child apprehension and welfare dependency rates among other problems in First Nations communities.48 Indeed, a 2016 decision of the Canadian Human Rights Tribunal found the comparability approach to be discriminatory as it fails to result in services reflecting the 44

Shewell and Spagnut, supra note 15 at 4. Citizenship & Immigration, Indian Affairs Branch, “Authority to Introduce Increased Rates of Assistance to Indians - Details of Request to the Honourable The Treasury Board”, Ottawa, June 16, 1964; Treasury Board Minute, TB 627879, dated July 23, 1964. 46 For more information of program devolution see Judith Rae, “Program Delivery Devolution: A Stepping Stone of Quagmire for First Nations?” (2009) 7 (2) Indigenous Law Journal 1. 47 This includes child welfare, assisted living, education, policing, emergency services, health, day care, housing and infrastructure. 48 See Shewell & Spagnut, supra at note 16 at 41-42; Johnson, supra note 33 at 68-71; and and Cindy Blackstock, “The Canadian Human Rights Tribunal on First Nations Child Welfare: Why if Canada wins, equality and justice must lose, Children and Youth Services Review (2010). 45

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distinct needs and circumstances of First Nations living on reserve. Despite these findings, Canada continues to impose this approach on First Nations living on reserve.49 The Tribunal also found that Canada knowingly funds child welfare services on reserve well below funding levels in the provinces, which has contributed to record numbers of First Nations children permanently taken from their families through the child welfare system.50 Government documents discussed in the case also reveal that Indian Affairs is aware that all of the essential services on reserve that it funds fall well below levels funded by the provinces for similar services.51

A final feature of this situation that is noteworthy relates back to an earlier milestone, the Indian Act. The Act is silent on the provision of essential services to First Nations (and, indeed, many modern developments in the Canada-Indigenous relationship, since it has not been amended since 1951), even though the provision of such services accounts for millions of dollars in transfers to First Nations each year.52 Although Canada could have amended the Indian Act in 1951, or any time afterwards, to provide for a proper regulatory framework for service delivery, the federal government has consistently resisted calls to do so. Numerous reports of the Auditor General of Canada have been critical of the lack of a proper legislative framework for such basic services, raising problems related to the lack of clarity around service delivery standards and the lack of transparency and accountability on the part of the government.53 Some have also argued that the status quo gives the executive and Indian

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First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2at para. 465. 50 Ibid. at paras. 388-393. 51 See ibid. at para. 268. An Indian Affairs document called, “Explanation on Expenditures of Social Development Programs” describes the Department’s social programs as “…limited in scope and not designed to be as effective as they need to be to create positive social change or meet basic needs in some circumstances.” It goes on to say that if Indian Affairs’ current social programs were administered by the provinces this would result in a significant increase in costs for [the Department].” 52 See Naiomi Metallic and Sebastien Grammond, “Ensuring Real Accountability on First Nations Reserves” January 2016, Caledon Institute of Social Policy, online: www.caledoninst.org/Publications/PDF/1087ENG.pdf. 53 See Auditor General of Canada, 1994 Report of the Auditor General of Canada to the House of Commons, Vol 14, Chap 23, “Indian and Northern Affairs Canada – Social Assistance”; Auditor General of Canada, 2006 Report of the Auditor General of Canada, Chapter 5, “Management of Programs for First Nations”, at 2-3 and 9; 2011 Status Report of the Auditor General of Canada to the House of Commons, Chapter 4, “Programs for First Nations on Reserves” at 5; Auditor General of Canada, 2013 Status Report of the Auditor General of Canada, Chap 6, “Emergency Management on Reserves” at 5-6.

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Affairs staff too much discretion, which presents opportunities for abuse.54 As will be seen below, regulation of Indigenous Affairs issues via policy instead of legislation is a recurring theme in the relationship between Canada and Indigenous peoples.

(3) The 1973 Calder Decision

The 1973 Supreme Court of Canada decision in Calder et al. v. Attorney-General of British Columbia is a significant milestone resulting directly from the Indigenous resistance movement fueled by the White Paper.55 Although the members of Nisga’a Nation who brought the claim lost, it was nonetheless a watershed decision. Six judges found that Aboriginal title survived British assertions of sovereignty and continued at common law. Three of those judges found that such rights were never extinguished, while another three did, and the remaining judge resolved the case purely on procedural grounds.

The possibility of the existence of inherent rights at common law, including Aboriginal title, created by the ruling, triggered a number of significant changes. First, the case caused Canada to reverse its long-standing policy not to negotiate land or treaty claims. Since this time, Canada has had policies to negotiate comprehensive land claims (also called modern treaties),56 as well as to settled what are called ‘specific claims’ (i.e., First Nations grievances related to unfilled treaty promises and improper taking of reserve lands).57 These policies have resulted in the signing of 26 comprehensive claim agreements, with 100 comprehensive claim negotiations currently ongoing,58 and the resolution of approximately 390 specific claims.59 Calder also

See Janna Promislow and Naiomi Metallic, “Realizing Administrative Aboriginal Law” in Administrative Law in Context, 3rd ed., Chap. 3 (forthcoming from Emond Publishing 2017), at 15. See also Borrows, J., “Legislation and Indigenous Self-Determination in Canada and the United States” in From Recognition To Reconciliation: Essays On The Constitutional Entrenchment Of Aboriginal And Treaty Rights, University of Toronto Press, 2015. 55 Calder et al. v. Attorney-General of British Columbia, [1973] SCR 313 (“Calder”). 56 See INAC website, “Comprehensive Claims”: online: www.aadncaandc.gc.ca/eng/1100100030577/1100100030578. 57 See INAC website, “Specific Claims”, online: www.aadnc-aandc.gc.ca/eng/1100100030291/1100100030292 58 See INAC, “Comprehensive Claims” supra note 56. 59 See INAC, “Specific Claims” supra note 57. 54

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spurred further advocacy by Indigenous groups over inherent rights, ultimately leading to the recognition of Aboriginal and treaty rights in s. 35 of the Constitution Act, 1982.

While being the catalyst for the modern recognition of inherent rights in Canada, Calder, and the positive developments arising from it, have their shortcomings. Most significantly, in reaching their finding that Aboriginal title exists at common law, the Supreme Court of Canada Justices placed heavy reliance on the decisions of Chief Justice Marshall of the US Supreme Court in a series of cases on the rights of American Indians decided in the 1820s and 1830s.60 These cases, while finding that American Indians had inherent rights to land and selfgovernment, where premised on the finding that the assertion of sovereignty by the British Crown had the legal effect of substantially diminishing their inherent rights, though not extinguishing them entirely. It has since been pointed out that Chief Justice Marshall’s legal conclusion were based on the doctrines of discovery and terra nullius (i.e., the racist argument that Europeans gained legal control over large territories and their peoples upon discovery of these territories due to the fact that these populations were ‘savage’ and inferior to Europeans). These doctrines have been completely discredited in international law and can no longer serve as a legal justification for colonization.61

Further, both the specific and comprehensive claims processes that arose from the Calder decision have been the subjects of criticism over the years. There are still hundreds of outstanding claims that have yet to be resolved through the specific claims process and the process has been discredited as being biased, since Indian Affairs is at once the defendant and the judge and jury over these claims.62 Canada attempted to improve this system in 2008 by creating a new Tribunal to adjudicate specific claims once Canada has rejected or failed to

See Calder supra note 55 at 320-321, 335, 346-347, 380-383 and 387. See also Peter Vicaire, “Two Roads Diverged: A Comparative Analysis of Indigenous Rights in a North American Constitutional Context” (2013), 58 McGill Law Journal. 607. 61 See TRC Final Report, supra note 1 at 191-195; John Borrows, “Canada’s Colonial Constitution” supra note 37, and Felix Hoehn, “Back to the Future--Reconciliation and Indigenous Sovereignty after Tsilhqot’in” (2016), 67 University of New Brunswick Law Journal 109. 62 Senate of Canada, “Negotiation or Confrontation: It’s Canada Choice - Final Report of the Standing Senate Committee on Aboriginal Peoples Special Study on the Federal Specific Claims Process” (December 2006). 60

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resolve a claim within three years of receiving it, but this situation still gives Canada the balance of power in deciding these claims.63 The government has recently announced that it will attempt to overhaul this system once again.64

The comprehensive claim process has also been charged with being exceeding slow (in some cases taking two or three decades) and expensive, resulting in only a small minority of groups with completed claims.65 As a policy of the federal government—again, without legislative backing—the process is often contingent on the political will of the government in power, and some governments have been very slow to proceed on land claims.66 The process has also been criticized for excluding those Metis living south of the 60th parallel,67 as well as the signatories of the historic Numbered Treaties.68 There are also reports that some First nations avoid the comprehensive claims process because Canada still insists on inserting clauses into modern treaties that extinguish or prevent their future reliance on inherent rights.69

(4) Section 35 of Constitution Act, 1982

63

See Specific Claims Tribunal Act, SC 2008, c 22 See The Lawyer’s Daily, “Ottawa pledges 'complete overhaul' of specific claims to promote reconciliation with Indigenous peoples”, September 7, 2017, online: www.thelawyersdaily.ca/articles/4586/ottawa-pledges-completeoverhaul-of-specific-claims-to-promote-reconciliation-with-indigenous-peoples-. 65 There have been 26 completed claims since 1973. About a 100 claims are in the negotiation process. A fact-sheet released by Indian Affairs found that, as of March 2014, 40% of current negotiations have been ongoing for 16-20 years; 21% have been ongoing for 21-25 years; and 8% have been ongoing for 26 years or more. See INAC, “Fact Sheet - A Results-Based Approach to Comprehensive Land Claim and Self-government Negotiations” online: www.aadnc-aandc.gc.ca/eng/1406824128903/1406824211834. 66 See Jennifer Dalton, “Aboriginal Title and Self-Government in Canada: What Is the True Scope of Comprehensive Land Claims Agreements?” (2006), 22 Windsor Review of Legal & Social Issues 29 at 31: “it is apparent that the potential for success in negotiations, from the standpoint of Aboriginal participants, depends largely on the government of the day and its related policies regarding Aboriginal peoples.” Indeed, some First Nations complained that the Harper administration moved so slowly as to bring the process to a standstill: see Globe and Mail, “Yukon first nation worried self-government will collapse without funding”, Sept. 19, 2012; APTN, “PM Harper failing to fulfill Mulroney’s Oka promise on modern treaties”, April 8, 2015. 67 See Indian and Northern Affairs Canada, Evaluation, Performance Measurement, and Review Branch Audit and Evaluation Sector, "Final Report Evaluation of the Federal Government’s Implementation of Self- Government and Self-Government Agreements - Project Number: 07065" (February 2011) at 35-36 68 See Nancy Kleer and Judith Rae, “Divided We Fall: Tsilhqot’in and the Historic Treaties” (July 11, 2014), online: oktlaw.com/divided-fall-tsilhqotin-historic-treaties/. 69 See Dalton supra note 66 at 50-53. 64

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The recognition of Aboriginal and Treaty rights in the Constitution Act, 1982 was a result of hard-fought lobbying efforts by Indigenous groups.70 It was originally intended that future constitutional amendments would further specify the content of Aboriginal rights, but this did not occur and it has fallen to the courts to interpret the provision and tell us what is in the ‘Section 35 box.’ Since 1990, the Supreme Court has decided over 30 decisions interpreting s. 35 and this jurisprudence recognizes rights to hunt, fish and gather for food, social and ceremonial purposes,71 and some rights to engaging in commercial trade of fish and some other harvested items for the purpose of obtaining a moderate livelihood.72 The Court has also further fleshed out the nature and content of Aboriginal title and even declared it to exist with respect to land of the Tsilhqot’in Nation in the interior of British Columbia.73 The Court has also found that governments have an obligation to consult and accommodate when authorizing or engaging in activities that will impact on these rights even if they have not been proven but are credibly asserted.74 While articulating the test for proving these rights, the Court has also found that government can infringe such rights, but such infringement must meet the justification test created by the Court (which in many ways resembling the s. 1 Oakes test).75

While the Court’s s. 35 jurisprudence has led to positive development for some Indigenous communities, the test for proving the Aboriginal rights has been criticized as being unduly narrow and freezing Indigenous rights by casting them as practices “integral and distinctive” to pre-contact cultures. The tests for Aboriginal rights, treaty rights and Aboriginal title have also been charged with placing a heavy onus of proof of Indigenous claimants, who must prove each

Bob Joseph, “The Constitution Express and Its Role in Entrenching Aboriginal Rights”, October 17, 2016 on “Working Effectively with Indigenous Peoples” blog, online: www.ictinc.ca/blog/the-constitution-express-and-itsrole-in-entrenching-aboriginal-rights. 71 R. v. Van der Peet, [1996] 2 SCR 507, R. v. Côté, [1996] 3 SCR 139, R. v. Adams, [1996] 3 SCR 101, R. v. Powley, [2003] 2 SCR 207; and R. v. Sappier; R. v. Gray, [2006] 2 SCR 686. 72 R. v. Gladstone, [1996] 2 SCR 723 and R. v. Marshall, [1999] 3 SCR 456. 73 Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR 511; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 SCR 388; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, [2010] 2 SCR 650; Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40. 74 Delgamuukw v. British Columbia, [1997] 3 SCR 1010; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 75 R. v. Sparrow, [1990] 1 SCR 1075, R. v. Gladstone, supra note 72; R. v. Badger, [1996] 1 SCR 771, Tsilhqot’in Nation v. British Columbia, ibid. 70

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right on a case-by-case basis.76 Likely because of this, what has been defined as s. 35 rights have not extended far beyond hunting, fishing and gathering rights. The Supreme Court has even been reluctant to recognize self-government as a right protected by s. 35 and has said that, if it is, the right must be linked a pre-contact practice that is integral and distinctive to the culture.77 Such an approach to self-government has criticized as far too restrictive.78

Increasingly, there have been questions about how effective s. 35 has been a vehicle to transform the relationship between Indigenous people and Canada. The Final Report of the Truth and Reconciliation Commission (“TRC”) has suggested that s. 35 has not furthered meaningful reconciliation because the case law is still anchored in the doctrine of the discovery. Indeed, the Court continues to rely on the reasoning adopted in Calder (based on the US Marshall trilogy) that the inherent rights of Indigenous were necessarily diminished by discovery and the assertion of sovereignty by the British. Indeed, in its first case interpreting s. 35, the Supreme Court of Canada stated, “there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown…”.79 Again, the problem is more than symbolic; Crown sovereignty as the starting premise of s. 35 has influenced the development of the legal tests for Aboriginal rights, treaty

76

See John Borrows, "The Trickster: Integral to a Distinctive Culture" (1997) 8:2 Constitutional Forum Constitutionelle 27; Russel Lawrence Barsh & James Youngblood Henderson, "The Supreme Court's Van der Peet Trilogy: Naive Imperialism and Ropes of Sand" (1997) 42:4 McGill Law Journal 993; Kenji Tokawa, “Van der Peet Turns 20: Revisiting the Rights Equation and Building a New Test for Aboriginal Rights” (2016) 49 University of British Columbia Law Review 817 – 833; Brenda Gunn, “Beyond Van der Peet: Bringing Together International, Indigenous and Constitutional Law” in UNDRIP Implementation – Braiding International, Domestic and Indigenous Law – Special Report, Center for International Governance Innovation 2017, at 29-38. 77 R. v. Pamajewon, [1996] 2 SCR 821. 78 See Bradford Morse, “Permafrost Rights: Aboriginal Self-Government and the Supreme Court in R. v. Pamajewon” (1997), 42 McGill Law Journal 1011; Peter Vicaire, “Two Roads Diverged: A Comparative Analysis of Indigenous Rights in a North American Constitutional Context” supra note 60 at 656-657; Jennifer Dalton, “Exceptions, Excuses and Norms: Aboriginal Self-Determination in Canada: Protections Afforded by the Judiciary and Government” supra note 66 at 19-20; McNeil, K., “The Jurisdiction of Inherent Right Aboriginal Governments”, supra, at 13-14; Moodie, D., “Thinking Outside the 20th Century Box: Revisiting Mitchell – Some Comments on the Politics of Judicial Law-Making in the Context of Aboriginal Self-Government since Calder: Search for Doctrinal Coherence” (2003-2004) 35 Ottawa Law Review. 1; and John Borrows, “Aboriginal and Treaty Rights and Violence Against Women” (2013) 50 Osgoode Hall Law Journal 699 – 736. 79 R. v. Sparrow, supra note 75. In the more recent decision in Tsilhqot’in Nation v. British Columbia, supra note 75 at para. 69, the Court disavowed the doctrine of terra nullius but without addressing its relationship with the doctrine of discovery and how that doctrine has affected its interpretation of s. 35. See John Borrows, “The Durability of Terra Nullius: Tsilhqot’in Naiton v. British Columbia” (2015) 48 UBC L Rev 701,

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rights and title, including the heavy burden of proof placed on Indigenous claimants and a relatively forgiving justification test for governments.80 As a result, the TRC has said that s. 35 has been used more “as a means to subjugate Aboriginal peoples to an absolutely sovereign Crown” than “as a means to establish the kind of relationship that should have flourished since Confederation, as was envisioned in the Royal Proclamation of 1763 and the postConfederation Treaties.”81

(5) 1992 Charlottetown Accord

The Charlottetown Accord proposed to enshrine detailed provisions on self-government into the Constitution Act, 1982 and thereby brought about a national discussion on the inherent right of Indigenous self-government. This amendment would have specified Indigenous peoples’ jurisdiction “to safeguard and develop their languages, cultures, economies, identities, institutions and traditions,” and “to develop, maintain and strengthen their relationship with their lands, waters and environment.”82 The Accord favoured the negotiation of selfgovernment agreements over unilateral implementation of the right by First Nations and denied direct judicial enforcement of the new inherent-right provision for a period of five years to permit a reasonable period for negotiations. However, if an Indigenous nation had not negotiated an agreement within the five-year period, the right, was in principle, enforceable without an agreement.83 Although the Accord, which included a wide number of amendments beyond Aboriginal self-government, ultimately failed, the momentum around self-government led the Liberal government of Jean Chrétien to pass a policy recognizing the inherent right to self-government in 1995 (known as the “Inherent Rights Policy”).84

See TRC Final Report, supra note 1 at 191-195; Felix Hoehn, “Back to the Future--Reconciliation and Indigenous Sovereignty after Tsilhqot’in” supra note 61. 81 TRC Final Report, ibid at 203. 82 Hogg, P.W., Constitutional Law of Canada (5th ed.), 2014 Student Edition, Chap. 28, at 25-26. 83 Ibid. at 26-27. 84 Canada, “The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government” (August 1995) (Inherent Rights Policy or IRP), online: www.aadncaandc.gc.ca/eng/1100100031843/1100100031844 80

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The Inherent Rights Policy recognizes Aboriginal peoples’ inherent right to self-government as an existing Aboriginal right within meaning of section 35 of the Constitution Act, 1982, stating broadly that it encompasses “matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to their land and their resources.”85 Although it recognizes Aboriginal peoples’ inherent jurisdiction over several areas, the policy does not contemplate Indigenous groups’ unilateral exercise of these powers, even over areas that are internal to the group. Instead, the policy requires that all self-government powers must be negotiated and agreed to by both the federal government and provincial/territorial governments. This stipulation (which deviates from the proposal in the Charlottetown Accord, which would have allowed unilateral exercise of self-government after five years) has significantly hampered the growth of Indigenous self-government in Canada. In many cases, self-government negotiations have been rolled into comprehensive claim negotiations (which can take decades to negotiation), although the policy permits stand-alone self-government agreements, as well as agreements on the selfgovernment of discrete subjects (known as ‘sectoral agreements’). The pace of these has been slow, and contingent upon the political will of the governments in power to complete them. To date, only 22 self-government agreements have been signed: 18 as part of comprehensive land claim agreements; three as stand-alone self-government agreements; and one sectoral agreement.86 Once again, Canada’s choice to proceed by policy as opposed to legislation severely limits Indigenous groups’ ability to seek enforcement and accountability through the courts.

The leisurely pace of comprehensive land claims and self-government has meant that only a small minority of Indigenous groups have gained meaningful control over their own affairs and access to a land-base beyond reserve lands. In the meantime, First Nations have operated

85

Ibid. See INAC website, "Fact Sheet: Aboriginal Self-Government" online: www.aadncaandc.gc.ca/eng/1100100016293/1100100016294 and Indian and Northern Affairs Canada, Evaluation, Performance Measurement, and Review Branch Audit and Evaluation Sector, "Final Report Evaluation of the Federal Government’s Implementation of Self- Government and Self-Government Agreements - Project Number: 07065" (February 2011) (2011 Evaluation Report”) at 41. 86

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under a combination of the Indian Act and program devolution, with little control over lands or their day-to-day lives. Again, the consequence here is more than symbolic. There is an obvious link between the exercise of meaningful self-government and improvement in Indigenous peoples’ living conditions. This is recognized in the academic literature,87 by the federal government itself,88 and is demonstrated by those few instances where self-government is occurring in this country.89 On the other side of the coin, there is also evidence demonstrating that the status quo is hindering improvements in First Nations’ quality of life. The community well-being index, tracked by Indian Affairs, illustrates a persistent 20-point gap between First Nations and non-Aboriginal communities that has not changed in the last 30 years.90

(6) 1996 RCAP Report

Precipitated by the 78-day stand-off at Kanesatake (Oka), Quebec, in 1991, that brought longstanding tensions between Indigenous and non-Indigenous peoples to national attention, the 5year Royal Commission on Aboriginal Peoples was intended to be a comprehensive study of the relationship between Indigenous peoples and Canada. Its five-volume final report contained over 300 broad-ranging recommendations on how to achieve a just and mutually respectful relationship. Despite being broad ranging in its recommendations, key principles informed the direction proposed by the RCAP, and chief among these were the need for Indigenous peoples

See John H Hylton, “The Case for Self-Government: A Social Policy Perspective” in John H Hylton, ed, Aboriginal Self-Government in Canada: Current Trends and Issues, 2nd ed (Saskatoon: Purich Publishing Ltd, 1999) 78; John O’Neil, et al, “Community Healing and Aboriginal Self-Government” in John H Hylton, ed, Aboriginal Self-Government in Canada: Current Trends and Issues, 2nd ed (Saskatoon: Purich Publishing Ltd, 1999) 130; Sonia Harris-Short, Aboriginal Child Welfare, Self-Government and the Rights of Indigenous Children – Protection the Vulnerable Under International Law (Burlington: Ashgate Publishing Company, 2012) at 11–12. 88 See 2011 Evaluation Report, supra note 54 at 41: “Empirical research shows that taking control of selected powers of self-government and capable governance institutions are indispensable tools to successful long-term community development in Aboriginal communities.” 89 Regarding the one completed sectoral agreement—on education in Mi’kmaq communities in Nova Scotia—the Mi’kmaq of Nova Scotia have experienced high school graduation rates of First Nations students on reserve double (and in some cases triple) the graduation rates of First Nations students in schools on reserves in the rest of the country: See Education Canada Magazine “In Nova Scotia, a Mi’kmaq Model for First Nation Education” (date unknown) online: www.cea-ace.ca/education-canada/article/nova-scotia-mi%E2%80%99kmaw-model-first-nationeducation. 90 See INAC Website, “Ministerial Transition Book: November 2015” online: www.aadncaandc.gc.ca/eng/1450197908882/1450197959844 87

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to be regarded as a third-order of government, possessing rights of self-determination and selfgovernment, being entitled to a more equitable share of this nations’ lands and resources and a more equitable fiscal relationship with Canada, and the need for Indigenous peoples and the other governments in Canada to return to a nation-to-nation relationship.

In terms of transforming the current relationship to a nation-to-nation relationship, RCAP first proposed a new royal proclamation committing Canada to a renewed treaty relationship in the long-term and to adopting several news laws.91 On the heels of the proclamation would come a suite of new legislation,92 as well as the convening of federal, provincial, territorial and Aboriginal leaders meetings to develop a Canada-wide Framework Agreement containing principles to guide the new nation-to-nation relationship.93 RCAP also put significant emphasis on the need for capacity building and support for Aboriginal groups to become fully selfgoverning and called for the creation of national Aboriginal Government Transition Centre to begin assisting Aboriginal nations immediately.94 The plan also included Canada and Aboriginal nations devising a mutually acceptable long-term system of fiscal transfers.95

The RCAP Report had some important impacts. Primary among them was raising awareness of the impacts of the legacy of residential schools, which encouraged some very brave survivors to initiate individual and class actions against the government of Canada.96 This litigation eventually led to the Indian Residential School Settlement and the creation of the Truth and Reconciliation Commission (TRC). Therefore, the RCAP report was a catalyst for the TRC Report and its Calls to Action, which are currently having a significant impact on discussions across various sectors in this country on the need for transformation and reconciliation. The RCAP Report also had impacts on several Supreme Court of Canada decisions on Aboriginal issues in

91

RCAP supra note 3, Vol. 2, Chap. 3 at 296. Ibid. at 296-297, including an Aboriginal Treaty Implementation Act, an Aboriginal Lands and Treaties Tribunal Act, an Aboriginal Nation Recognition and Governance Act, an Aboriginal Parliament Act, and an Aboriginal Relationship Department Act and an Indian and Inuit Services Department Act. 93 Ibid. at 296 and 305-309. 94 Ibid. at 310-315. 95 Ibid. at 296 and 309-310. 96 See, for example, Blackwater v. Plint, [2005] 3 SCR 3. 92

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the areas of sentencing and equality rights, for example, and continues to be a vital resource to inform social-context judging in the Indigenous context.97

On the political side of things, however, the RCAP Report has had less of an impact. Generally, the Chrétien Liberal government was less than enthusiastic about RCAP’s proposals on selfgovernment and a nation-to-nation relationship. In its response to the RCAP Report, entitled, Gathering Strength – Canada’s Aboriginal Action Plan, the government committed to providing Aboriginal communities, “the tools to guide their own destiny and to exercise their inherent right of self-government.”98 However, Canada remained unwilling to accept the unilateral exercise of inherent self-government, even over matters internal to Indigenous groups, and continued to define self-government as “well-defined, negotiated arrangements with rights and responsibilities that can be exercised in a coordinated way.”99

In addition to its unwillingness to embrace the RCAP Report’s recommendations on selfgovernment, the government’s attempt to reduce the deficit would also inhibit its ability to realize RCAP’s recommendation for a new fiscal relationship. Around this time, the government undertook a program review of all federal departments to find efficiencies in order to reduce the deficit. All departments were expected to do their part to reduce spending. In the case of Indian Affairs, the Department was reluctant to cut any core programs given the rapidly growing First Nations population, so it agreed to a compromise that instead of program cuts, Indian Affairs funding increases for 1996-97 would be limited to 3% growth and would be capped at 2% in the following years.100 The funding cap was only supposed to remain in place for a couple of years, but instead remained in place for nearly twenty years until March 2016. 101 A past Deputy 97

See David Stack, "The First Decade of RCAP's Influence on Aboriginal Law" (2007) 70 Saskatchewan Law Review123. 98 Address by the Honourable Jane Stewart Minister of Indian Affairs and Northern Development on the occasion of the unveiling of Gathering Strength — Canada’s Aboriginal Action Plan, Ottawa, Ontario, Jan. 7, 1998. 99 Serson, S., “Reconciliation: for First Nations this must include First Fairness” in Aboriginal Healing Foundation, Response, Responsibility, and Renewal: Canada’s Truth and Reconciliation Journey, 2009, 147. ISBN 978-1897285-72-5 100 Ibid. at 152. See also Assembly of First Nations, “Fiscal Fairness for First Nations” (2006). 101 In December 2015, Justin Trudeau’s Liberal government vowed to lift the cap, and in the March 2016 budget, the governments did commit to funding beyond previous capped levels. See CBC, “First Nations welcome lifting of despised 2% funding cap”, December 10, 2015 and APTN News, “Budget 2016: Trudeau Liberals blow 2 per cent

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Minister of Indian Affairs has argued that the 2% cap was the primary reason why the RCAP Report never got the attention from government that it deserved.102 The effect of the funding cap was to limit spending on core programs—education, child welfare, income assistance, First Nation government support, housing, capital and infrastructure and regulatory services programs—to only 2% growth per year. The result was that funding for these programs has not keep pace with the demands in First Nations communities given population growth and inflation. By 2006 (10 years before the cap would be lifted), the Assembly of First Nations calculated that the cap resulted in a 15 per cent decrease in real purchasing power for First Nations governments.103

C. Conclusion

While there have been some small changes during the 20 years after RCAP,104 I would argue that they have had minimal impact on transforming the Canada-Indigenous relationship beyond those events I have described herein. Circumstances stagnated and became worse in this period over the last 20 years. In fact, in his 2014 report on the situation of Indigenous peoples in Canada, Special Rapporteur, James Anaya, stated that “the human rights problems faced by indigenous peoples in Canada … have reached crisis proportions in many respect” and that “[t]he most jarring manifestation of these human rights problems is the distressing socio-economic conditions of indigenous peoples in a highly developed country.”105

It has only been very

recently and primarily in response to the TRC Report and its Calls to Action that we have started cap with ‘unprecedented’ $8.4 billion investment,” March 22, 2016. However, how the lifting of the cap will immediately affect First Nations has not yet been clarified by the Department. 102 Serson, supra note 100, at 149 103 INAC Cost Drivers Study, quoted in Judith Rae, “Program Delivery Devolution: A Stepping Stone of Quagmire for First Nations?” supra note 46 at 27, footnote 107. 104 For example, the Liberal government of Paul Martin attempting to introduce the Kelowna Accord, but this was subsequently ignored by the Conservative government of Stephen Harper. The Harper government introduced a few stand-alone pieces of legislation, including the Family Homes on Reserves and Matrimonial Interests or Rights Act, Safe Drinking Water for First Nations Act, and the First Nations Elections Act, supra note 39, but elsewhere I have characterized these as piecemeal changes: see Naiomi Metallic, “Ending Piecemeal Recognition of Indigenous Nationhood and Jurisdiction: Returning RCAP’s Aboriginal Nation Recognition and Government Act” supra note 39. 105 Human Rights Council, Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya – Addendum – The situation of indigenous peoples in Canada, 7 May 2014 (Advance Unedited Version), A/HRC/27/52/Add.2, p. 7.

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to see glimmers of the possibility of transformative change.106 It remains to be seen, however, whether good words about transforming the relationship manifest into to concrete action.

The six milestones that I have discussed herein tell us a lot about where we are currently in this era of ‘Renewal and Renegotiation’. While there have been some improvements in the Indigenous-Canada relationship from the time of the era of ‘Domination and Assimilation’, the foregoing reveals many remaining problems that must be addressed in order for us to advance. We saw that some very damaging values continue to underlie and undermine the CanadaIndigenous relationship. For example, Canada continues to impose provincial rules and standards in areas of core services on Fist Nations, which is steeped in assimilative assumptions. As well, our courts, and consequently Canada’s approach to Indigenous inherent rights, takes the sovereignty of the Crown—the power to make decisions over Indigenous peoples and their lands—for granted. This has the effect of severely limiting Indigenous claims to control over their own peoples and lands and finds its roots in the racist doctrine of discovery. The stalling of progress on self-government and resolving claims to lands and resources has been extremely detrimental to moving to a nation-to-nation relationship. The Canadian government has also consistently approached reforms to Indigenous relations in the last 60 years primarily through non-binding policies (as we have seen in the areas of essential service delivery, specific and comprehensive claims and self-government) instead of creating proper legislative frameworks that would lead to clear norms and standards, transparency and accountability. Nebulous policy approaches have allowed the government to knowingly underfund vital essential services in First Nations and maintain a 2% cap on funding growth for many years. They have also permitted relatively ineffective processes for the resolution of outstanding land and treaty claims, and the negotiation of modern treaties and self-government to remain in place. Meanwhile, conditions in Indigenous communities and Indigenous peoples’ quality of life have

This includes Justin Trudeau’s Liberal government’s unqualified support for the UN Declaration on the Rights of Indigenous Peoples and its commitment to implement it domestically, the creation of the Inquiry into Missing and Murdered Indigenous Women and Girls, as well as a watershed Canadian Human Rights Tribunal decision finding systemic discrimination in the funding of child welfare services on reserve: see First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada),supra note 49. 106

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not improved—and have possibly worsened in this period. We need to learn from and address these problems if we plan to move forward in the 150 years in the Canada-Indigenous relationship.

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Profile for CRRF-FCRR

The Relationship between Canada and Indigenous Peoples; Where are we?  

We are pleased to announce the October submission in Directions comes from Professor Naiomi Metallic (LL.M). First published in 2017, “The R...

The Relationship between Canada and Indigenous Peoples; Where are we?  

We are pleased to announce the October submission in Directions comes from Professor Naiomi Metallic (LL.M). First published in 2017, “The R...

Profile for crrf-fcrr