Toronto Star

Mixed feelings on Indigenous rights legislatio­n

Officials urged to broaden consultati­ons, reflecting all Indigenous voices

- ALEX BALLINGALL OTTAWA BUREAU

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

 ?? SEAN KILPATRICK THE CANADIAN PRESS FILE PHOTO ?? Natan Obed, president of the Inuit Tapiriit Kanatami, is one of the Indigenous leaders supporting the federal government’s new legislatio­n. Bill C- 15 creates a process to align Canadian laws and policies with the United Nations Declaratio­n on the Rights of Indigenous Peoples.
SEAN KILPATRICK THE CANADIAN PRESS FILE PHOTO Natan Obed, president of the Inuit Tapiriit Kanatami, is one of the Indigenous leaders supporting the federal government’s new legislatio­n. Bill C- 15 creates a process to align Canadian laws and policies with the United Nations Declaratio­n on the Rights of Indigenous Peoples.

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