Mixed feelings on Indigenous rights legislation
Officials urged to broaden consultations, reflecting all Indigenous voices
OTTAWA— It took years for Canada to get to this point. And Alma Brooks wants to slam on the brakes.
At 77, Brooks is the Native Women’s Association of Canada’s regional elder for the Atlantic, a Maliseet grandmother from New Brunswick who has been involved in the leadership of her nation for years.
Now she’s watching the federal government champion its new legislation, Bill C- 15, which creates a new process to align Canadian laws and policies — in consultation with First Nations, Inuit and Métis peoples — with the United Nations Declaration on the Rights of Indigenous Peoples.
And that’s the problem. She’s watching. For Brooks, the process of recognizing Indigenous rights in Canada — rights that include self- determination over land, resources and lives — is illegitimate without broader participation. That means direct consultations with elders, youth and all nations, she said, not just through leaders of bands created by the Indian Act or with “lobby” organizations like the Assembly of First Nations ( AFN).
“Nobody should be negotiating our rights without us, behind our backs,” Brooks said.
Such criticism is reminiscent of Ottawa’s last great effort to dismantle the colonial relationship and replace it with a true recognition of Indigenous rights. That push started with Prime Minister Justin Trudeau delivering a marquee speech in the House of Commons in February 2018, and ended months later amid condemnation from Indigenous groups, which charged that Ottawa was imposing its own, diminished vision of rights on them.
This time, the government is establishing the process through a bill that was tabled in Parliament on Dec. 3. The legislation — an echo of a failed 2018 private member’s bill from former NDP MP Romeo Saganash — would “affirm” the declaration can be applied in Canadian law and mandate the government to “take all measures necessary to ensure that the laws of Canada are consistent with” it. The government would need to table an action plan within three years to accomplish this, and then release an annual progress report.
There is no deadline in the bill
for this work to be completed.
But this is the heavy lifting of reconciliation, and it will take time to fulfil the 46 articles of the declaration in Canada, said Natan Obed, president of the Inuit Tapiriit Kanatami and one of the Indigenous leaders — alongside AFN National Chief Perry Bellegarde and Métis National Council spokesperson David Chartrand — supporting the government’s new legislation.
Obed pointed to articles in the bill that state the action plan must address injustice and “all forms of violence and discrimination” against Indigenous peoples, and said his hope is that the process will empower Indigenous governments over their own affairs as partners with other governments.
“This is still a dream. This isn’t something that will just happen because of the legislation,” Obed told the Star in early December.
The declaration itself, as Obed put it, is “quite expansive.” Adopted by the UN in 2007 and endorsed by Canada in 2016, the document upholds the Indigenous right to self- government “in matters relating to their internal and local affairs.” It cites the right to create and control education systems in Indigenous languages and the right to the lands and resources they have traditionally owned or occupied.
It also says governments like Canada’s must consult with Indigenous groups to “obtain their free and informed consent” before approving “any project” affecting their lands or resources.
This last clause was the basis for Conservative opposition to Saganash’s bill on the declaration, when they raised concerns
it would grant Indigenous nations the power to “veto” developments like oil pipelines. Responding to the new bill in early December, the Canadian Association of Petroleum Producers said the process must be clear that “no group or groups will have a veto over others” and that federal, provincial and territorial governments should “retain their authority to make final decisions.”
Several provinces, meanwhile, have raised concerns. In a November letter to his federal counterpart, Alberta Justice Minister Kaycee Madu said the bill was being drafted too quickly given its potential “far- reaching and long- term consequences.” Madu also said the declaration could create legal uncertainty and promote division rather than reconciliation with Indigenous peoples by raising expectations Ottawa will unilaterally create “a third order of government not contemplated by our constitutional framework.”
But for some, the significance of implementing the declaration lies in how it could change Canada’s relationship with Indigenous peoples so that power is shared rather than exercised upon them by settler governments. Murray Sinclair, the Manitoba senator who chaired the Truth and Reconciliation Commission on residential schools, said the declaration’s authors intended for it to be
used as a road map “undo” that colonial dynamic.
“It’s not establishing new rights,” Sinclair told the Star. “It’s saying these rights already existed, and you need to undo those laws in which you interfered with those pre- existing rights.” And that, Sinclair said, is no small project.
“Canada and every province is going to be forced to look at everything that they have done since Confederation legislatively, with a view to asking themselves the question: would this have contravened the declaration if the declaration had been in place?” he said.
John Borrows, the chair in Indigenous law at the University of Victoria, said the ultimate result will be “to make our country more democratic” by broadening decision- making so that Indigenous peoples are directly involved. This could make things like development projects more complicated, but not impossible or even necessarily more difficult, he said.
“Sometimes people are approaching this field as if it’s a zero- sum game,” Borrows said. “I just don’t think that’s realistic … It isn’t like, ‘ I’m going to take my ball and go home,’ it’s, ‘ Let’s play this game better.’ ”
While the process is just beginning, Sinclair and Borrows cited some laws and policies that would need to change to align with the declaration. They include federal environmental assessments that rely on consultation provisions — not consent — with affected Indigenous people, as well as work to allow nations to decide how they would like to govern themselves outside the strictures of the Indian Act, which the government used to define and control Indigenous peoples for more than a century.
The government has also already moved on what Sinclair called “prime points of change” outlined in the declaration: laws passed in 2019 to transfer control for child- welfare services to Indigenous groups and protect Indigenous languages.
Borrows also noted provincial concerns and how Quebec is challenging the Indigenous child welfare law on grounds that it tramples on provincial jurisdiction, stating this shows the importance of bringing provinces and territories on board with the declaration in order for the implementation to succeed.
But Sinclair said the path outlined in C- 15 is shadowed by a “very significant risk.” The mandate to create an action plan through consultations could sow division and result in nothing, he said. Instead, Sinclair argued the government should forge ahead with its own plan to get this done.
“I consider it an abuse of the obligation to consult by dragging Indigenous people into every difficult and thorny issue that they have to resolve and thereby not resolving it because they can’t get Indigenous people to agree with them or to agree amongst themselves.”
In an emailed statement to the Star, Justice Minister David Lametti said the government must develop its action plan “collaboratively” so that it reflects “the voices and perspectives of Indigenous people across the country.” But the government can move ahead with initiatives before the plan is developed, he said, pointing to the laws on child services and languages that have already passed.
“The parliamentary process will provide an opportunity to examine the details of the proposed legislation in greater detail, and help ensure that we move forward in a manner that will translate to concrete action and real results,” Lametti said.
Brooks, the Maliseet elder in New Brunswick, sees an opposite problem from what Sinclair objects to. She wants broader consultations and is suspicious of Ottawa moving ahead without involving the true “rights holders” of all Indigenous nations.
To make sure that happens, Brooks said the whole process on implementing the declaration to start from scratch. Otherwise it could crash into the same inaction she’s seen before.
“We’re going around in the same old merry- go- round,” she said. “They need to go back to square one.”
The significance of implementing the declaration lies in how it could change Canada’s relationship with Indigenous peoples so that power is shared