Canada’s Emerging Indigenous Right’s Framework

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Canada’s Emerging Indigenous Right’s Framework

Canada’s Emerging
Indigenous Right’s Framework:
A Critical Analysis

An Overview

Justin Trudeau ran on an election platform of changing the relationship between the Crown and Indigenous peoples in Canada. Trudeau promised a new nation-to-nation relationship based on the recognition of Indigenous rights, respect, cooperation, and partnership. Over halfway into his mandate as Prime Minister, some clarity is emerging on the scope of that nation-to-nation relationship. In February 2018, Trudeau announced the development of a new and transformational Indigenous Rights, Recognition and Implementation Framework.

Since then, a suite of legislation and policy has been rapidly deployed. It includes fiscal policy, omnibus legislation, changes in negotiations for land and self-government, two new ministries of Indian Affairs and dozens of tables, working groups, MOUs, and related government initiatives.

Yet, there is scarce comprehensive analysis on the meaning and trajectory of Canada’s approach.

Our report finds that the Rights Framework expresses a clear and coherent set of goals, which revolve around domesticating Indigenous self-determination within Canadian Confederation. These goals have been ordered into legislation and policy in a manner that guides First Nations towards a narrow model of “self-government” outside of the Indian Act.

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EXECUTIVE SUMMARY JUNE 05, 2018

Specifically, we ask a number of related questions about the proposed Framework

Will the Rights Framework replace the Indian Act or simply offer an opt-out process?

How are self-determination, self-government, and “reconstitution of nations” expressed in the Rights Framework?

Will the Rights Framework lead to higher quality of life and alleviation of socio-economic challenges for First Nations?

Has there been genuine engagement with the concept of free, prior and informed consent?

How will the new Rights Framework affect pre-confederation, Numbered, and Modern Treaties?

How does the new Rights Framework address lands and resources off-reserve (i.e. traditional territories or title lands)?

Will the Rights Framework shift the burden of proof for proving title from Indigenous communities to Canada?

Our analysis reveals that the Rights Framework expresses a clear and coherent set of goals, which aim to suppress Indigenous self-determination within Canadian Confederation. These goals have been ordered into legislation and policy in a manner that guides First Nations towards a narrow model of “self-government” outside of the Indian Act. And remarkably, though labelled as new and transformational, the model reflects older and largely discredited approaches.

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Report Takeaways

The Rights Framework is complex and multifaceted, but it revolves around Liberal interpretations of First Nation “self-government.”

Canada is redefining Indigenous self-determination away from expansive jurisdiction and towards containment within Canadian Confederation. This process cultivates a “nation-to-nation” relationship that avoids inherent and treaty rights and does not deal directly with the authority of Indigenous nations to exercise control over their territories.

Towards these ends, our analysis finds evidence that the Liberals have set in motion processes to:

Re-structure the machinery of government to transition First Nations out of the Indian Act and towards self-government agreements

⟶ Maintain a re-packaged version of the discredited 1995 Inherent Right self-government policy 

⟶ Expedite the number of modern treaties and address ongoing implementation challenges

⟶ Support the “reconstitution of nations” as aggregated service-delivery populations, with limited  jurisdictional authority off-reserve

⟶ Address outstanding Aboriginal title claims through incremental and sectoral approaches that offer flexibility but limit the expression of title to fractions of First Nation claims

⟶ Build fiscal capacity within First Nations to transition all Indian Act bands into self-government agreements, rather than to expand the land base and deal honourably First Nations as economic rights-holders

⟶ Domesticate UNDRIP and free, prior, and consent articles though a narrow interpretation of the Declaration and restricting consent to reserve or settlements lands, at best

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“The Assembly of First Nations (AFN), as an advocacy body, and any regional organizations cannot negotiate any binding changes to Canada’s federal laws, policies and operational practices as part of the Recognition and Implementation of Indigenous Rights Framework.” - Resolution from the Chiefs in Assembly, AFN Special Chiefs Assembly May 2018

 

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SLIDE 4 |

FIVE SERIOUS CONCERNS

While there are positive elements in some of the changes being proposed, there must also be serious concern for the way the status quo is maintained in this “new” Framework.

1. Though Canada uses the language of “self-determination” to describe the objective of the Rights Framework, this concept does not include any meaningful recognition of Indigenous jurisdiction over lands, territories, and resources outside of the reserves;

2. The Framework does not address the spirit and intent of the historic treaties or the outstanding title question on non-treaty lands, but rather addresses the injustice of land dispossession through incremental and sectoral approaches of restitution;

3. The Framework maintains Canada’s supremacy within Confederation, seeking to subsume Indigenous rights into the federal and provincial heads of power;

4. The Framework does not open an adequate process for nation-to-nation discussions because much of the high-level negotiations are happening between the federal government and the Assembly of First Nations;

5. The Framework does not lay out a process for consultations with First Nations people, rejecting out of hand any constitutional talks, and there has been little transparency from the federal government on key components of the Framework.

Unionist

With all due respect, epaulo, these items seems to comprehensively refute the shortcomings of the Framework and indeed its attempts to undermine Indigenous self-determination.

But please bear with me here.

1) What are the Indigenous demands in the context of self-determination?

2) To whom should I refer in order to hear or read these demands?

3) Is there an actual movement to realize these demands?

I'm less interested in hearing about how the settlers aren't interested in "bestowing" self-determination than in how the people are mobilizing to win it.

epaulo13 epaulo13's picture

Unionist wrote:

With all due respect, epaulo, these items seems to comprehensively refute the shortcomings of the Framework and indeed its attempts to undermine Indigenous self-determination.

But please bear with me here.

1) What are the Indigenous demands in the context of self-determination?

2) To whom should I refer in order to hear or read these demands?

3) Is there an actual movement to realize these demands?

I'm less interested in hearing about how the settlers aren't interested in "bestowing" self-determination than in how the people are mobilizing to win it.

..please bear with me as well. i'm going to say things you already know. :)

..since the last fed election the trudeau liberals have been talking about changing the relationship with indigenous folk. there has been warning from indigenous folk that extinguishment was the liberal agenda but little was known what this meant in actual policy terms as it was being kept under wraps by the gov. this document at long last lays bare the gov agenda. which is why it is an important document. 

..there was some understanding at the afn meeting and election of what the gov was up to and that they were going to use the afn to implement the gov agenda. which is why the resolution in post #4 was passed. which was why diabo ran and why the liberals intervened in the election.

..i know of no single place where you can get a list of demands because this needs to be negotiated on a nation to nation basis. which the gov has no intention of doing. i can say, for example, that for the tsleil-waututh nation their struggle against kinder morgan is a struggle for self-determination. i believe this is how this will play out as the gov tries to go around via the afn. i believe this is how the negotiations will take place..in the form of confrontation and conflict.