REVISITING RCAP
Towards Reconciliation: The Future of Indigenous Governance
Symposium Discussion Paper October 2014 .
REVISITING RCAP
Towards Reconciliation: The Future of Indigenous Governance
About the Institute on Governance
Founded in 1990, the Institute on Governance (IOG) is an independent, Canada- based, not-for-profit public interest institution with its head office in Ottawa and offices in Vancouver and Toronto. Our mission is ‘advancing better governance in the public interest,’ which we accomplish by exploring, developing and promoting the principles, standards and practices which underlie good governance in the public sphere, both in Canada and abroad. Over the past 20 years, the IOG has undertaken over 1000 projects in Canada and 35 other countries. The Institute’s current activities fall within the broad themes: public governance, modernizing government, not-for-profit governance, health and innovation, and Indigenous governance.
The IOG brings a very broad perspective and experience to Indigenous governance issues, having worked in all regions of the country and with many different stakeholders, including federal and provincial governments, First Nation, Métis and Inuit governments, groups and organizations, and private sector stakeholders. An Indigenous Advisory Circle, comprised of a variety of leaders from across the country, guides the Indigenous Governance practice area.
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Table of Contents Introduction ...... 1 Royal Commission on Aboriginal Peoples 1996 ...... 4 RCAP In Depth: Recommendations ...... 6 Volume 2: Restructuring the Relationship ...... 9 Volume 3: Gathering Strength ...... 16 Volumes 4 & 5: Perspectives and Realities; Renewal: A Twenty-Year Commitment ...... 18 Response from Aboriginal Leaders ...... 19 Federal Government Response: Gathering Strength: Canada’s Aboriginal Action Plan ...... 19 Response from Aboriginal Leaders to Gathering Strength ...... 20 Summary ...... 21 Developments Since the Royal Commission on Aboriginal Peoples ...... 23 Restructuring the Relationship ...... 25 Aboriginal Healing Foundation ...... 25 Indian Residential Schools Settlement Agreement ...... 25 Truth and Reconciliation Commission ...... 26 United Nations Declaration on the Rights of Indigenous Peoples ...... 27 Summary ...... 27 Nation Building ...... 28 First Nations Land Management Act ...... 28 Specific Claims Tribunal ...... 28 Clarification of the Duty to Consult and Accommodate ...... 29 Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 ...... 31 Economic empowerment, lands, resources, wealth generation and redistribution ...... 33 Indigenous Institutions ...... 33 Guidelines for Federal Officials to Fulfill the Duty to Consult ...... 34 Federal Framework for Aboriginal Economic Development ...... 34 Summary ...... 35 Closing Social and Economic Gaps ...... 36 The Family and Community ...... 36 Health ...... 37 Housing ...... 38 Education ...... 39 Summary ...... 40 Recent Developments and Ongoing Priorities ...... 41 Canada-First Nations Joint Action Plan and Gathering ...... 41 Idle No More ...... 42 Bill C-33: First Nations Control of Education Act ...... 43 Taking Action to Advance Treaty Negotiations and Reconciliation ...... 44 National Public Inquiry into Missing and Murdered Aboriginal Women ...... 45
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Charting a Course ...... 46 Restructuring the Relationship ...... 47 Nation Building ...... 47 Closing Social and Economic Gaps ...... 48 Appendix A: Notable Legal Cases ...... 49 Sparrow (identifying an aboriginal and treaty rights test) ...... 49 Van der Peet (narrowing the aboriginal rights test) ...... 50 Delgamuukw (determining the nature of aboriginal title) ...... 51 R. v. Powley (determining the nature of Métis rights) ...... 51 Haida Nation v. B.C. and Mikisew (clarifying duty to consult) ...... 53 Platinex (providing support for capacity) ...... 53 Bibliography ...... 55
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INTRODUCTION
"Our report contains hundreds of recommendations. As our mandate directed, we looked at all the major problems facing Aboriginal people in their relationship with Canada. Each has proved difficult to resolve. Together they look even more unmanageable. Or so we thought when we began our work.
As we delved deeper, we came to appreciate the Commission's unique opportunity to approach the relationship between Canada and First Peoples in a new way - holistically. We realized that the usual strategy - tackling the problems one at a time, independently - is tantamount to putting a band-aid on a broken leg. Instead we propose a comprehensive agenda for change."
– Renewal: A Twenty Year Commitment, Highlights from the Report of the Commission on Aboriginal Peoples
In 2012 and 2013, in an effort to encourage constructive public dialogue regarding contemporary Canadian indigenous issues, the Institute on Governance (IOG) undertook a series of symposiums focused on Section 35 of the Constitution and it's consequent and profound impacts on the law, indigenous governance and economic development related to the assertion of the Aboriginal and treaty rights. While participants discussed many issues, the primary interest of the IOG is the relationship with the evolving governance landscape and how it must support a forward-looking agenda. The work was both timely and well received, drawing a number of prominent leaders from across the country to discuss governance successes and challenges three decades after Canada affirmed existing Aboriginal and treaty rights. Notably, numerous participants in the Section 35 discussions expressed the importance of revisiting the findings of the Royal Commission on Aboriginal Peoples.
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 1 .
Now, Canada approaches the twentieth anniversary of the Royal Commission on Aboriginal Peoples (RCAP) release of the final report in 2016; and the 150th anniversary of the British North American Act (now the Constitution Act, 1867) in 2017. To mark these milestones the IOG is undertaking a new symposium series that builds on its previous work and seeks to better understand the future of indigenous governance. The purpose of this paper is to serve the symposium series themes and dialogue by highlighting both the findings of and progress since the release of the RCAP final report.
While undoubtedly groundbreaking at the time, much has changed since RCAP issued its final report. The composition of the indigenous population has changed dramatically, the jurisdictional relationships have transformed significantly (with provinces in particular), and the potential opportunities with industry have increased drastically; and yet, the unequal conditions of Indigenous peoples in Canada persists as one of this nation’s most serious shortcomings. There is still much work to be done and the anniversary of RCAP provides another important touchstone in indigenous issues as the IOG continues to explore the future of indigenous governance with its partners. Our goal in this pursuit is three-fold:
• To assist indigenous governments to meet their governance aspirations in a manner that reflects their desire, capacity, priorities, and socio-economic realities;
• To increase capacity for governments and communities to participate in and benefit from evidence based research and open discussion that better supports their governance structures; and
• To create a fertile ground to advance the public dialogue on the future of indigenous governance in Canada.
The Towards Reconciliation Symposium Series will bring together key stakeholders from Indigenous communities and institutions, practitioners, the public sector and academia reflect on key themes, which stem from RCAP itself:
1. Restructuring the Relationship 2. Nation Building 3. Economic empowerment, lands, resources, wealth generation and redistribution 4. Closing social and economic gaps
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 2 .
The Towards Reconciliation symposium discussions, papers and reports will assist each of these stakeholders as they move forward with research, program, and policy decisions that will directly affect and support the parties. These will build on the IOG’s previous work in the Beyond Section 35 series, which addressed legislative and constitutional developments following the recognition of Aboriginal and treaty rights in the Constitution Act, 1982. The Beyond Section 35: Discussion Paper detailed the making of Section 35 and a number of landmark Supreme Court decisions that have followed. It also set forth a research agenda based on examining decision- making processes, institutional structures, and capacity. Three symposia followed this discussion paper, each with its own conference report, which recommends steps for further research and action: Beating the Constitutional Drum (Ottawa); Closing the Gap (Vancouver); and Building Relationships (Calgary).
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 3 .
ROYAL COMMISSION ON ABORIGINAL PEOPLES 1996 The Royal Commission on Aboriginal Peoples was established in 1991 to study the evolution of the relationship between Aboriginal peoples (First Nations, Inuit and Métis), the government of Canada and Canadian society as a whole.1 The Commission started its work at a difficult time in Canadian history. First Nations were blocking roads and rail lines in Ontario and British Columbia, the Innu were protesting military installations in Labrador, and armed conflict had erupted in Kanesatake (Oka) just a year earlier. With this in mind the Commission started its work, seeking answers to the question:
What are the foundations of a fair and honourable relationship between the Aboriginal and non-Aboriginal people of Canada?
Over a period of five years, the Commission held 178 days of public hearings, visited 96 communities, heard briefs from over 2000 people, commissioned more than 350 research studies, and reviewed numerous past inquiries and reports. In so doing it examined multiple issues, including historical relations between the government and aboriginal people, self-government, the Royal Proclamation of 1763, the Indian Act, the Numbered treaties and aboriginal case law. In 1996 the Commission published its final report, a report that included a scathing, single sentence summary from the Commissioners:
The main policy direction, pursued for more than 150 years, first by colonial then by Canadian governments, has been wrong.
Unsurprisingly the report put forward a vision for completely restructuring the relationship between Aboriginal and non-Aboriginal peoples in Canada, setting out a 20-year agenda for change.
The report recommended a new Royal Proclamation that would commit the government to a new set of principles, respect the relationship with Aboriginal peoples, recognize the historical origins of Aboriginal nationhood and affirm the inherent right to Aboriginal self-determination. These four principles identified as
1 Jurisdictional authority for “Indians and lands reserved for Indians” is vested with the federal Crown in s. 91(24) of the Constitution Act, 1867, which recognizes the federal Crown as possessing the exclusive legislative authority. To fulfill this, in part, the federal government provides funding for services and programs on-reserve; while provincial governments provide services for off reserve Aboriginal populations. As a result, social programs that are typically delivered by the provinces (education, health care, child welfare, others) are delivered directly by First Nations to on-reserve populations. This paper primarily focuses on the evolution of the relationship between the Crown and Aboriginal communities, however in some cases, innovative provincial innovations are highlighted to demonstrate the changing nature of service delivery to on and off-reserve populations. Additional provincial practices and innovations will be collected throughout the dialogue series.
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 4 . central to the new relationship were mutual recognition, mutual respect, sharing and mutual responsibility. It also proposed new legislation and institutions, additional resources, a redistribution of land and a rebuilding of Aboriginal nations, governments and communities. Recognizing that Aboriginal autonomy is inherently linked to community development, the Commission also called for action in four areas:
Healing – adopt Aboriginal health and healing strategies, recognize Aboriginal nations’ authority over child welfare, and promote cultural sensitivity
Economic development – expand the land and resource base, create an independent lands and treaties tribunal, and establish economic institutions that reflect cultural values
Human resources development – create educational programs to support Aboriginal self-government, train 10,000 health professionals and establish an Aboriginal Peoples University
Aboriginal governance – focus on nations rather than communities, recognize an Aboriginal order of government, establish an Aboriginal parliament to advise Parliament on matters affecting Aboriginal Peoples, recognize Métis self-government (provision of a land base and recognize rights to hunt and fish on Crown land)
Three pieces of legislation to give legal meaning to the bold statement about resetting the relationship were identified:
Aboriginal Treaties Implementation Act: to set forth a process for clarifying and modernizing existing treaties, creating new treaties, and establishing regional treaty commissions.
Aboriginal Lands and Treaties Tribunal Act: to create a body to “clear the backlog of specific claims and act as ombudsman for the new comprehensive treaty-making processes.”
Aboriginal Nations Recognition and Government Act: to set forth criteria and a process for recognizing Aboriginal nations, and acknowledging their jurisdictions over core issues (on an interim basis, until treaty negotiations are complete).2
2 Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples.
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 5 .
The Commission also called for the federal government to provide a forum for negotiating a cross-Canada framework agreement, which would establish the processes and actions required to re-set the relationship. At a minimum, the forum would address:
• Treaty renewal and new treaty making • Redistribution of lands and resources • Clarification of areas of independent and shared jurisdiction • Redesign of short-term and long-term fiscal arrangements
The Commission put forward recommendations for immediate action, calling for a First Ministers Conference within 6 months and a major increase in spending on Aboriginal programs. It also recommended abolishment of the Department of Indian Affairs and Northern Development, to be replaced by a newly created federal Department of Aboriginal Relations, which would focus on developing policy consistent with the new relationship, and supporting the implementation of such in other relevant departments. Additional programmatic dollars would be allocated to address pressing health, educational, employment and housing needs whereas the Department of Aboriginal Relations would assist Aboriginal groups in making the transition to self-government while the Department of Indian and Inuit Programs would be maintained to provide services to communities which were not ready to make the transition. RCAP In Depth: Recommendations While the section above provides a snapshot of the RCAP report, to advance a comprehensive dialogue on the state of affairs since RCAP requires a fulsome understanding of the recommendations contained within the final report. As noted, the Commission made over 400 recommendations encompassing key principles for a renewed relationship, as well as legislative, policy and programmatic changes needed to support and empower Aboriginal nations in the quest for self-government and resilience. It provides an Aboriginal perspective on Canadian history and the role that Aboriginal peoples should play in modern society, arguing that a strong future cannot be built unless all Canadians recognize and rectify the injustices of the past.
The report is organized into five volumes:
• Volume 1: Looking Forward, Looking Back, which traces the history of Aboriginal and non-Aboriginal relations since before contact
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 6 .
• Volume 2: Restructuring the Relationship, which argues for a transformed relationship based on reconciliation, and measures to advance nation building and economic development for Aboriginal nations • Volume 3: Gathering Strength, which addresses the many pressing social issues facing Aboriginal nations • Volume 4: Perspectives and Realities, which gives voice to the diversity of perspectives across Aboriginal nations, including to elders, women, youth and others • Volume 5: Renewal: A Twenty-Year Commitment, which makes the case for immediate and sustained investment and action to achieve reconciliation
Its recommendations were more far-reaching than any other Royal Commission; including major policy Commissions like the Royal Commission on Bilingualism and Biculturalism and the Royal Commission on Economic Union and Development Prospects for Canada. While undeniably an ambitious plan, the Commission stressed the need to honour past commitments and promises, reflect the identities and history of Aboriginal nations in national institutions, and facilitate the just participation of Aboriginal peoples and their representatives in Canada. Rejecting the paternalism of policies past, RCAP constructs a vision of the future where Aboriginal peoples are empowered to self-govern and achieve prosperity on their own terms.
Volume 1: Looking Forward, Looking Back
Volume One provides an in-depth look at the Commission’s unparalleled opportunity to speak with Aboriginals and non-Aboriginals across Canada. The Commissioners began the work of trying to make sense of current challenges by developing a greater understanding of the historical relationship between Aboriginal nations and the Crown. As they noted, detailing a cross-cultural relationship over hundreds of years is neither simple nor straightforward. While the non-Aboriginal approach emphasized the scientific, linear view of history, the Aboriginal approach is grounded in a cyclical view of history, marked by both high and low points as the cycle renews itself.
The report describes a relationship marked by multiple stages, starting from separate worlds, moving to contact and co-operation, displacement and assimilation, and finally, the present day period of negotiation and renewal. Through these periods, a number of false assumptions and abuses of power led to the development of policies that would perpetuate structural inequality that systematically advanced abiding prejudices of earlier eras. These include the creation of the Indian Act, the residential school policy, systematic relocation, and finally, the unequal treatment of Aboriginal veterans.
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 7 .
The Commission understands that new relationships cannot forget or forgo acknowledgement of historical wrongdoings of Canada’s Aboriginal populations. Instead, the Commission strives towards a renewed relationship. As the commission suggests,
The concept of renewal expresses better the blend of historical sensitivity and creative initiative that should characterize future relations among Aboriginal and non-Aboriginal people in this country. It would be false and unjust to suggest that we can start entirely anew, false and unjust to attempt to wipe the slate clean, ignoring both the wrongs of the past and the rights flowing from our previous relationships and interactions…3
According to the Commission, this renewed relationship vision is based on four main principles:
• Mutual recognition: non- Volume 1: Recommendation Aboriginal and Aboriginal Canadians should recognize the rights of one 1.16.2 The Commission recommends that federal, another within three facets—equality, provincial and territorial governments co-existence, and self-government. further the process of renewal by: • Mutual respect: Respect is a valued aspect of all relationships both a) acknowledging that concepts such individually and publicly, especially as terra nullius and the doctrine of the quality of courtesy, consideration, discovery are factually, legally and and esteem extended to people whose morally wrong; languages and cultures differ from our b) declaring that such concepts no own. Respect among cultures creates a longer form part of law making or positive, supportive climate for policy development by Canadian harmonious relationships to develop. governments; • Sharing: as it nourishes and c) declaring that such concepts will sustains different types of social not be the basis of arguments relationships, especially with respect presented to the courts; to economic cooperation. d) committing themselves to renewal • Mutual Responsibility: of the federation through partners have a duty to act consensual means to overcome the responsibly toward one another and historical legacy of these concepts, the shared lands between them. This which are impediments to principle involves the transformation Aboriginal people assuming their of colonial relationship of guardian rightful place in the Canadian into one of true partnership. federation; and, e) including a declaration to these The principles are presented as a ends in the new Royal Proclamation circle, in order to define a process that and its companion legislation (p. 661-662) 3 Report of the Royal Commission on Aboriginal Peoples
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 8 . will enable solutions to difficulties afflicting current relationships between Aboriginal and non-Aboriginal peoples. The new relationship is important not only in achieving these four main principles, but also in achieving “a relationship that recognizes we of non-Native origin have as much, if not more, to learn and to gain as we do to teach and to give” (p. 648), ensuring that this relationship become a truly equal partnership.
The Commission stressed the importance of remembering that the Canadian identity is by no means uniform. Instead, it is described as a partnership among a number of different cultures and people, each with their own varied history and background. These foundational principles will guide the future of relationships between Aboriginals and non-Aboriginals, and return us to a path of justice, co- existence, and equality.
Volume 2: Restructuring the Relationship Volume two of the RCAP report advances strategies to start afresh with a relationship grounded in the mutual respect, recognition and responsibility as outlined in volume one. It emphasizes the role of treaties and self-government, as well as the importance of lands and resources, and economic development, in overcoming history and rising to a new era of prosperity. Given the far-reaching nature of the volume and the breadth and depth of the issues addressed therein, numerous recommendations were set forth, which will be addressed under specific chapter headings below.
Chapter Two: Treaties The role of treaties in Canadian history is extensive, allowing for differences to be set aside to make room for consensual and peaceful relationships through coexistence and respect. However, the Commission found the result of many treaties to be considerable strife and hardship, with dishonoured promises and unequal gains. Still, the Commission believes treaties to be important to the future of the country. Implementing and renewing historical treaties is important to honour and achieve their original spirit and intent, and should be achieved in support of parallel efforts to revitalize the treaty-making process between Aboriginal nations and the Crown.
Treaty making is the very essence of governing, involving the use of diplomatic powers on the path to mutual recognition and respect, and commitment to a joint future. The resulting documents are sacred, enduring, and irrevocable, and a part of the Canadian Constitution. Treaty rights are now recognized in Section 35 (1) of the Constitution Act, 1982, as significant social contracts between members with a foundation in the laws of the nation.
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 9 .
As the Commission understands,
“The sources of the under-development, poverty, disease and dependence within our First Nations can be found in the disregard and violation of our treaties and of Canada’s own constitution. Likewise, the seeds of the solutions to the fundamental problems and contradictions can be found in the honouring and faithful implementation of these sacred treaty rights and obligations.”4
Despite the paramount importance of treaties, the Commission found that treaty rights of governance have not been recognized or implemented. Further, they observed that any implementation has caused an imbalance in benefits and burdens of the treaty relationship in favour of the Crown and against interests of treaty nations.
To remedy these wrongdoings, the Commission recommends a movement towards justice and reconciliation for Aboriginal nations. Justice requires the fulfillment of the agreed terms of the treaties, as recorded in treaty text and supplemented by oral evidence.
In order to ensure a successful resolution, the treaty process must emphasize mutual rights and appropriate and clear fiduciary obligations between partners. Moving forward to modern treaties, the Commission understands the need to learn from past mistakes and allow for treaties to be made on the basis of a common language. Modern treaties are referred to as ‘living’ agreements, which explicitly call for frequent renegotiations of certain issues and also contain key mechanisms to address disputes between parties.5
4 Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples. 5 ibid
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 10 . Volume 2, Chapter Two: Recommendation
2.2.1 That federal, provincial and territorial governments provide programs of public education about the treaties to promote public understanding of concepts including the nation-to-nation basis of treaties, the sacred and spiritual nature of treaties, the relationship between treaties and the constitution of Canada, and the honour of the Crown 2.2.2 The parties implement the historical treaties from the perspective of both justice and reconciliation: (a) Justice requires the fulfillment of the agreed terms of the treaties, as recorded in the treaty text and supplemented by oral evidence. (b) Reconciliation requires the establishment of proper principles to govern the continuing treaty relationship and to complete treaties that are incomplete because of the absence of consensus. 2.2.4 The spirit and intent of the historical treaties be implemented in accordance with the following fundamental principles: (a) The specific content of the rights and obligations of the parties to the treaties is determined for all purposes in a just and liberal way, by reference to oral as well as written sources. (b) The Crown is in a trust-like and non-adversarial fiduciary relationship with the treaty nations. (c) The Crown's conflicting duties to the treaty nations and to Canadians generally is reconciled in the spirit of the treaty partnership. (d) There is a presumption in respect of the historical treaties that • treaty nations did not intend to consent to the blanket extinguishment of their Aboriginal rights and title by entering into the treaty relationship; • treaty nations intended to share the territory and jurisdiction and management over it, as opposed to ceding the territory, even where the text of an historical treaty makes reference to a blanket extinguishment of land rights; and • treaty nations did not intend to give up their inherent right of governance by entering into a treaty relationship, and the act of treaty making is regarded as an affirmation rather than a denial of that right. 2.2.6 The federal government establish a process for making new treaties to replace the existing comprehensive claims policy, based on the following principles: (a) The blanket extinguishment of Aboriginal land rights is not an option. (b) Recognition of rights of governance is an integral component of new treaty relationships. (c) The treaty-making process is available to all Aboriginal nations, including Indian, Inuit and Métis nations. (d) Treaty nations that are parties to peace and friendship treaties that did not purport to address land and resource issues have access to the treaty-making process to complete their treaty relationships with the Crown . REVISITING RCAP
Towards Reconciliation: The Future of Indigenous Governance 11 .
Chapter Three: Governance Volume two, chapter three focuses on Aboriginal governance, suggesting three orders of government that must be recognized in Canada: Aboriginal, provincial, and federal.6 The future of these three levels are intertwined, requiring strong relationships and regular, supportive dialogue.
Self-government is the natural extension of the principle of self-determination, or the right of an Aboriginal nation to choose how it may be governed. The Commission describes self-government simply, as “…the ability to assess and satisfy needs without outside influence, permission, or restriction.”7 The concept and vision can take on a variety of forms due to the diverse nature of Aboriginal peoples, and includes a holistic view where government is inseparable from communal practices and way of life.8
The Commission considered a number of important Aboriginal traditions of governance, included in testimony and hearings from Canada’s Aboriginal peoples, including:
• The centrality of the land • Individual autonomy and responsibility • The rule of law • The role of women • The role of elders • The role of the family and clan • Leadership • Consensus in decision making • The restoration of traditional institutions
Along with these traditions, the Commission reports that Aboriginal visions of self- government are coupled with two distinct goals: (1) gaining greater authority over traditional territories and inhabitants, and (2) gaining greater control over matters affecting particular Aboriginal nations, such as culture, identity and collective wellbeing.
The Commission recognized that self-government requires action on multiple fronts, but begins with an affirmation of this from the federal government of this inherent right. Specific recommendations focused on advancing this goal focus on principles and characteristics related to self-government, Aboriginal citizenship, and financial support to enable self-government.
6 Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples. 7 ibid 8 ibid
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 12 . Volume 2, Chapter Three: Recommendation
2.3.2 All governments in Canada recognize that Aboriginal peoples are nations vested with the right of self-determination. 2.3.4 All governments in Canada recognize that the inherent right of Aboriginal self- government has the following characteristics: (a) It is an existing Aboriginal and treaty right that is recognized and affirmed in section 35(1) of the Constitution Act, 1982. (b) Its origins lie within Aboriginal peoples and nations as political and cultural entities. (c) It arises from the sovereign and independent status of Aboriginal peoples and nations before and at the time of European contact and from the fact that Aboriginal peoples were in possession of their own territories, political systems and customary laws at that time. (d) The inherent right of self-government has a substantial degree of immunity from federal and provincial legislative acts, except where, in the case of federal legislation, it can be justified under a strict constitutional standard. 2.3.8 The government of Canada recognize Aboriginal people in Canada as enjoying a unique form of dual citizenship, that is, as citizens of an Aboriginal nation and citizens of Canada. 2.3.19 Financial arrangements provide greater fiscal autonomy for Aboriginal governments by increasing access to independent own-source revenues through a fair and just redistribution of lands and resources for Aboriginal peoples, and through the recognition of the right of Aboriginal governments to develop their own systems of taxation. 2.3.20 Aboriginal citizens living on their territory pay personal income tax to their Aboriginal governments; for Aboriginal citizens living off the territory, taxes continue to be paid to the federal and relevant provincial government; for non- Aboriginal residents on Aboriginal lands, several options exist: (a) all personal income taxes could be paid to the Aboriginal government, provided that the level of taxation applied does not create a tax haven for non- Aboriginal people; (b) all personal income taxes could be paid to the Aboriginal government, with any difference between the Aboriginal personal income tax and the combined federal and provincial personal income tax going to the federal government (in effect, providing tax abatements for taxes paid to Aboriginal governments); or (c) provincial personal income tax could go to the Aboriginal government and the federal personal income tax to the federal government in circumstances where the Aboriginal government decides to adopt the existing federal/provincial tax rate
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 13 .
Chapter Four: Lands and Resources In volume two, chapter four, the Commission made a strong case for a new deal regarding the allocation of lands and resources, noting that “Aboriginal peoples have had great difficulty preserving a home in what has always been their country.”9 Beyond the economic value of Volume 2, Chapter Four: lands and resources, the social, cultural and spiritual implications Recommendation of land were widely reflected in 2.4.2 That provincial, federal and territorial the report. Commissioners stated governments, through negotiation, provide that by 1996 the Aboriginal land Aboriginal nations with sufficient land base had shrunk by two thirds base to foster economic independence and since the time of Confederation, self-government and on-reserve resources had 2.4.3 That these negotiations provide Aboriginal largely disappeared. nations access to renewable and non- From a moral standpoint, the renewable resources, within their failure of governments to honour traditional land base (or guarantee of treaties provides rationale for adequate access to them), as well as a increasing access to lands and share of the flow of benefits and resources, but many pragmatic opportunities from resources development reasons were cited as well. These 2.4.4 That in addition to lands and resources, ranged from the economic need to Aboriginal nations be provided financial increase financing for self- transfers based on the criteria of government, to the need to developmental needs and compensation resolve friction between (e.g. restitution) Aboriginal and non-Aboriginal 2.4.11 Providing a system of classifications of Canadians, for which land was a -2.4.13 land to clarify jurisdiction and ownership, major contributing factor. to address specific land and resources claims The chapter recommends a number of principles to which federal and provincial policies should conform, including recognition of the existence of Aboriginal title and Aboriginal rights and treaty rights as affirmed in Section 35 of the Constitution Act, 1982; recognition of the fiduciary obligation of the Crown; and that blanket extinguishment of Aboriginal land rights should not be sought in exchange for other rights.
Beyond these and other principles, the Commissioners set forth nearly 100 recommendations.
9 Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples.
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 14 .
Chapter Five: Economic Development The final chapter of volume two details the economic issues facing Aboriginal nations, once again positioning the state of Aboriginal economies at the time of the Commission against the vibrant and thriving economies that existed pre-contact, and even during the first decades of contact with European settlers. While Aboriginal nations were once strong trading partners, by the time of the Commission conditions had deteriorated to a dependence relationship. Returning these nations to self-reliant and resilient economies is noted as essential not only for the wellbeing of Aboriginal peoples, but is considered fundamental to the goal of self-government.
Volume 2, Chapter Five: Recommendation
2.5.1 That federal, provincial and territorial governments enter into long-term economic development agreements with Aboriginal nations, or institutions representing several nations, to provide multi-year funding to support economic development. 2.5.2 Outlines numerous characteristics of the proposed economic development agreements, such as mutual agreement by all parties, the provision of financing for such agreements, performance management guidelines and selection of design instruments by nations themselves. 2.5.30 Relating to the strengthening of Aboriginal capital corporations and the and establishment of an Aboriginal development bank. 2.5.33 2.5.36 Calling for a major 10-year initiative for employment and training.
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 15 .
Volume 3: Gathering Strength Volume three of the RCAP report deals with social and cultural aspects of renewal. As the Commission noted, its full mandate encompassed social and cultural elements, however this volume particular was dedicated to exploring specific social issues such as poverty and housing; cultural issues, such as language, childcare and traditional ways of life; and educational issues.
The sweeping mandate of the Commission gave them a perspective that saw both the specific elements of each policy area above, as well as the overall systemic and historical context shaping the social and cultural outcomes of Aboriginal nations. As a result, this volume touches not only on social policy responses but also proposes economic measures that could help to remedy social and cultural challenges.
As with other volumes of the report, volume three again turns to the importance of addressing the painful legacy of historical policies. Advancing healing and promoting mutual respect would require the creation of new institutions, relationships and policies that put Aboriginal and Aboriginal families first. Addressing the culture of dependency and the legacy of policies of assimilation and displacement would require action on the previously identified priorities of access to land and resources. The goal, consistent with the overall theme of the report, would be to create policies that support self-government and nation building, while providing specific policy responses to bolster the immediate social and cultural conditions facing Aboriginal nations.
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 16 .
Volume 3: Recommendation
3.2.1 Recognizing the fiduciary responsibility of the government of Canada to restore Aboriginal families to health and wholeness
3.2.2 Aboriginal, provincial, territorial and federal governments promptly acknowledge that child welfare is a core area of self-government in which Aboriginal nations can undertake self-starting initiatives.
3.2.3. Aboriginal, provincial, territorial and federal governments promptly reach agreements on the authority of Aboriginal nations and their communities for child welfare, and its relation to provincial, territorial and federal laws respecting child welfare.
3.2.4 Block funding be provided to child welfare agencies mandated by Aboriginal governments or communities to facilitate a shift in focus from alternative child care to family support. 3.3.12 Federal, provincial and territorial governments, and Aboriginal governments and organizations, support the assumption of responsibility for planning health and social services by regional Aboriginal agencies and councils where these now operate, and the formation of regional Aboriginal planning bodies in new areas, to promote: (a) equitable access to appropriate services by all Aboriginal people; (b) strategic deployment of regional resources; and (c) co-operative effort between Aboriginal communities and communities of interest, consistent with the emergence of nation governments and confederacies.
3.3.14 Federal, provincial and territorial governments commit themselves to providing the necessary funding, consistent with their jurisdictional responsibilities, (a) to implement a coordinated and comprehensive human resources development strategy; (b) to train 10,000 Aboriginal professionals over a 10-year period in health and social services, including medicine, nursing, mental health, psychology, social work, dentistry, nutrition, addictions, gerontology, public health, community development, planning, health administration, and other priority areas identified by Aboriginal people; (c) to support program development in educational institutions providing professional training, with preference given to Aboriginal institutions; and (d) to ensure that student support through post-secondary educational assistance, scholarships, paid leave and other means is adequate to achieve the target. REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 17 .
Volumes 4 & 5: Perspectives and Realities; Renewal: A Twenty-Year Commitment The remaining two volumes of the RCAP report are dedicated to a discussion of the diversity of perspectives found within the Aboriginal experience, and making the case for immediate action. Affording a place in Canadian society for Aboriginal women, elders, youth, Métis, Northerners and urban Aboriginals would be essential to advancing reconciliation and, ultimately, self-government. While the report refers to Aboriginal nations broadly, the Commission made sure to acknowledge the considerable diversity of experience and perspective across Aboriginal people. These differing identities reflect multiple cultures, experiences and histories, and policy moving forward should seek to be inclusive, rather than exclusive of the multitude of voices that deserve recognition.
The final volume of the report focuses on the Aboriginal imperative of the reconstitution of Aboriginal nations, alongside their empowerment with the authority to self-govern, including through adequate access to lands and resources as well as levers of social and economic development. Recognition of the injustices of the past once again played a central role in the recommendations, including first and foremost acknowledgement of the pain and struggle of Aboriginal peoples, which has often been denied because of lack of awareness or willingness to confront this painful past on the part of non-Aboriginal people. In light of the historical difficulty of raising the profile or attention to these issues, the Commission maintained the need for public education and raising awareness.
Finally, the Commission provided significant analysis of the costs associated with maintaining the status quo for another twenty years. At the time of the report, the estimated social and economic burden of the status quo was $7.5B; the Commission estimated that this cost could rise to $11B by 2016. It was recommended that an investment of up to $2B annually for a 20-year period would in fact, over time, reduce the overall burden of the status quo, while also importantly offering the restitution owed to the four generations of Aboriginal peoples who had suffered the injustices of historical policies.
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 18 .
Response from Aboriginal Leaders Although there was some disagreement, the Commission’s final report was generally welcomed by Aboriginal groups, who called it an “inspiring road map to the future."10 The report received significant media attention at the time but faded from the public agenda within months as the government claimed it needed time to study the recommendations prior to taking action. The government also opted not to call a First Minister’s Conference and instead issued a report entitled “Aboriginal Agenda: Three Years of Progress” outlining government achievements from 1993. In April 1997 the Assembly of First Nations held a national day of protest to express its anger over government inaction and the refusal of the Prime Minister to meeting with its leaders to discuss the report.
Federal Government Response: Gathering Strength: Canada’s Aboriginal Action Plan In January 1998, the government issued what – according to sources inside the Department of Indian Affairs at the time – was intended to be an interim response to the RCAP report, entitled Gathering Strength: Canada’s Aboriginal Action Plan. The document emphasized non-constitutional approaches to selected issues raised by the Report. The title was chosen specifically to acknowledge the importance of this Volume of RCAP, and reflected the government’s belief that efforts to elevate the basic conditions of Aboriginal nations were an important starting point in responding to the Commission.
At the same time, the federal government issued a Statement of Reconciliation in which it expressed profound regret for errors of the past and a commitment to learn from those errors. This was accompanied by a commitment of $350 million to be used to support community-based healing to deal with the legacy of abuse in the residential schools system. Given that provincial governments saw the report as a federal initiative there was very little uptake on their part.
Gathering Strength set forth an overarching policy framework for future government action based on four objectives:
Renewing the Partnership – working towards an initial Statement of Reconciliation acknowledging historic injustices to Aboriginal peoples and establishing a $350-million "healing fund" to address the legacy of abuse in the residential school system; preservation and promotion of Aboriginal languages; increasing public understanding of Aboriginal traditions and
10 Dickason, Dr. Olive Patricia. Recognized at Last? Some Reflections on the Royal Commission on Aboriginal Peoples. The Stanley Knowles lecture conducted from the University of Waterloo. (October 22, 1998) Available online.
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 19 .
issues; including Aboriginal partners in program design, development and delivery; exploring how existing systems might be improved; and addressing the needs of urban Aboriginal people more effectively.
Strengthening Aboriginal Governance – developing the capacity of Aboriginal peoples to negotiate and implement self-government; establishing additional treaty commissions, and Aboriginal governance centres; creating an independent claims body in co-operation with First Nations; creating a Métis enumeration program; funding Aboriginal women’s organizations to enhance women’s participation in self-government processes; and developing an Aboriginal governments recognition instrument.
Developing a New Fiscal Relationship – working toward greater stability, accountability and self-reliance; developing new financial standards with public account and audit systems that conform to accepted accounting principles; assisting First Nations governments to achieve greater independence through development of their own revenue sources; enhanced data collection and information exchange.
Supporting Strong Communities, People and Economics – improving living standards in Aboriginal communities (housing, water and sewer systems); reforming welfare to reduce dependence and increase job creation; developing a five-year Aboriginal Human Resources Development Strategy; expanding the Aboriginal Head Start program; reforming education; increasing focus on health-related needs and programs; improving access to capital; and establishing urban youth centres.
Response from Aboriginal Leaders to Gathering Strength Both the government and the Assembly of First Nations heralded the action plan as an important step towards a more principles based relationship. Assembly of First Nations National Chief Phil Fontaine attended the unveiling of the Gathering Strength report, noting "the Assembly of First Nations is proud of the role it played in laying the foundation for today's federal response to the landmark report of the Royal Commission on Aboriginal Peoples."11 National Chief Fontaine focused in particular in recognizing and accepting the statement of reconciliation made by Minister Jane Stewart.
Critics however maintained that the action plan fell short and expressed concerns that the government was simply throwing money at pressing problems without having a good sense of what would actually work to resolve them. Additionally,
11 Barnsley, Paul “Mixed Reviews to Canada’s RCAP Response,” Saskatchewan Sage, (Vol. 2, Issue 5)
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 20 . numerous Aboriginal leaders expressed disappointment with the Minister’s statement of reconciliation at the time. Head of the Métis National Council Gerald Morin noted the lack of specific mention of the Métis, while Harry Daniels, head of the Congress of Aboriginal Peoples, and Marilyn Buffalo, head of the Native Women’s Association of Canada, found the apology to be weak and lacking adequate compensation.12 There was also dismay that the statement of reconciliation had not come directly from the Prime Minister, but rather from the Minister of Indian Affairs.13
Additionally, concerns around the $350M in funding for the healing fund were raised, with mental health professionals and Aboriginal community members indicating this would not nearly be enough to achieve the level of healing required after four generations of abuse and neglect.14 Further concerns were raised that accepting these funds amounted to accepting an apology that at its heart, many believed to be an insult, rather than a statement of reconciliation.
Summary The landmark process carried out by the Royal Commission on Aboriginal Peoples provided an extensive an in-depth consideration of the historical and ongoing challenges facing Aboriginal nations. The Commissioners completed an exhaustive study and, at a time when relationships between Aboriginal and non-Aboriginal Canadians were fraught with tension, made a significant effort to capture and document the experiences, perspectives and aspirations of Aboriginal peoples across the country. With well over 400 recommendations, the report set forth an ambitious framework for reconciliation and renewal.
The federal government’s response, released in 1998, addressed many of the Commission’s recommendations, representing the most comprehensive response to the RCAP report to-date. At the same time, while the plan included a Statement of Reconciliation and set forth first steps to achieving this, there remained many considerable issues to be addressed. While federal officials indicated that Gathering Strength was intended as an interim response to the RCAP recommendations, it proved to be the only response. As a result, the RCAP report was never dealt with in its entirety.
12 Dickason, Dr. Olive Patricia. 13 Speirs, Rosemary "Apology to natives should have come from Chrétien," The Toronto Star, (January 8, 1998) 14 Barnsley, Paul.
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 21 .
In the nearly two decades since the release of the RCAP report, some notable successes have been achieved, which will be explored below. At the same time, the current state of the Crown-First Nations relationship demonstrates that there is a long way to go before full reconciliation and renewal can be achieved. The following section will examine developments since the release of the RCAP report, identifying key policy frameworks as well as many notable gaps that remain.
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 22 .
DEVELOPMENTS SINCE THE ROYAL COMMISSION ON ABORIGINAL PEOPLES The far-reaching recommendations set forth in the RCAP report, coupled with detailed analysis of the costs of inaction set the stage for immediate and sustained action. The government’s response in Gathering Strength prioritized a number of specific items to turn the over 400 recommendations of the Commission into a manageable agenda, providing a backdrop against which to measure progress on reconciliation and renewal.
The following section reviews legislation, policies and programs that have had an impact on reconciliation, as well as ongoing gaps and current priorities to continue to advance the Crown-First Nations relationship. Observers of the current state of the relationship would likely agree that while some progress has been made, the spirit and intent of the RCAP report and ensuing calls for reconciliation have yet to be fully achieved.
Based on the major themes of the RCAP report, advancements since RCAP will be examined thusly:
• Restructuring the relationship: activities and developments intended to advance reconciliation and healing
• Nation building: activities and developments intended to enhance or empower Aboriginal self-government
• Economic empowerment, lands, resources, wealth generation and redistribution: activities and developments intended to increase Aboriginal access to and control over land and resources, economic development, and contribute to the capacity for self-government
• Closing Social and Economic Gaps: activities and developments intended to improve the social and economic outcomes of Aboriginal peoples and nations
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 23 . The following timeline highlights key activities since the release of the RCAP report. While not exhaustive, it highlights a number of developments of note relating to reconciliation, nation-building and advancing Aboriginal self-governance and well-being.
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REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 24 .
Restructuring the Relationship As the foundation of a renewed relationship, reconciliation efforts played a key role in the RCAP report and in the response from Gathering Strength. In general, the immediate response to the Statement of Reconciliation in 1998 was mixed, with the Assembly of First Nations indicating acceptance of the statement, while many other Aboriginal leaders voiced disappointment. The work of institutions set forth through this announcement, and later following the Indian Residential Schools Agreement, have begun to promote a national dialogue and support healing. The sub-sections below demonstrate the reach and impact of some of these initiatives, however a clear message coming from Aboriginal peoples is that reconciliation takes time, and that these activities are only the beginning.
Aboriginal Healing Foundation On March 31, 1998, the Aboriginal Healing Foundation (AHF) was created, with a ten-year mandate to disburse the $350-million in funding allocated to the Foundation. The Foundation’s vision statement was to help all victims affected by the legacy of physical, sexual, mental, cultural and spiritual abuses in Indian residential schools address unresolved trauma, achieve reconciliation in relationships, and enhance their capacity to form meaningful, self-sustaining futures. To that end, the Foundation would provide resources to communities and initiatives that would support reconciliation, encourage and support the healing process, and create public awareness.
As of December 31, 2013, all AHF project funding has been disbursed. Over the life of the Foundation, 1,345 grants were made, with a total value of $523M. Reporting undertaken by Indian and Northern Affairs Canada indicated the program was achieving success in advancing reconciliation and healing. Further reports reflected the growing understanding that while the healing had begun, it is an ongoing process and would require considerable time to achieve full reconciliation.
Funding to the Foundation was cut in Budget 2010; at the time of the funding cut, emergency debates were held in the House of Commons to reinstate the funding. Ultimately, funding was not extended and the Foundation closed its doors in September 2012. Critics noted that healing is an ongoing process and therefore shuttering the AHF effectively set a false end date on the healing process.
Indian Residential Schools Settlement Agreement In 2005, an agreement was reached between legal counsel for former students of Indian Residential Schools, legal counsel for the Churches, the Assembly of First Nations, other Aboriginal organizations and the Government of Canada to achieve a
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 25 . fair and lasting resolution of the legacy of Indian Residential Schools. Implementation of the Indian Residential Schools Settlement Agreement began on September 19, 2007, and included a number of measures to address the legacy of the Indian Residential School system:
• Common Experience Payment – to be paid to all eligible former students who resided at a recognized Indian Residential School; • Independent Assessment Process – a claimant-centered, non-adversarial, out of court process for the resolution of claims of sexual abuse, serious physical abuse and other wrongful acts suffered at Indian Residential Schools; • Truth and Reconciliation Commission – mandated to hold seven national events, support community events, create a public historical record and promote awareness about the Residential Schools system and its impacts; • Commemoration – a $20 million initiative to support local, regional and national activities that honour, educate, remember, memorialize and/or pay tribute to former Indian Residential School students, their families and their communities; and • Measures to support healing – the Indian Residential Schools Resolution Health Support Program and an endowment to the Aboriginal Healing Foundation
The deadlines for the Common Experience Payment and the Independent Assessment Process have now passed. In 2012, following a review from the Truth and Reconciliation Commission, 75 commemorations projects were approved. Measures to support healing have been created under the Indian Residential Schools Resolution Health Support Program, which provides funding for emotional support, cultural support, professional counseling and transportation.
Truth and Reconciliation Commission The Truth and Reconciliation Commission, an element of the Indian Residential Schools Settlement Agreement, was created with the mandate of informing all Canadians of the experience of the victims and survivors of Indian residential schools. Through a series of public events, including seven national dialogues, the Commission has created a historical record of the policies and operations of the schools. This will be used to create a public report documenting this important historical event, and to provide recommendations regarding reconciliation.
To date, the Commission has collected 6,200 statements through public forums, one- on-one interviews and in written statements. The TRC’s final hearing was held in March 2014 in Edmonton, Alberta. All statements gathered by the Commission will be stored at the National Research Centre on Indian Residential Schools at the University of Manitoba.
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 26 .
The TRC noted that, as public events came to a close, many questions remain unanswered and the healing process seems to have just begun. The national events allowed for the open acknowledgement of the injustices suffered, and provided an important forum for survivors to share their stories, however the Commission is still waiting on important federal documents to be released. In response to strong public pressure, the mandate of the TRC was extended to March 31, 2015. The Commission will close in June 2015, once its final report has been issued.
United Nations Declaration on the Rights of Indigenous Peoples In 2007, the United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNIDRIP), a framework document recognizing the rights of indigenous peoples to self-governance and self- determination. Article 26 of the UNDRIP recognizes the right of Indigenous peoples to “own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.”15 At the time of signing, the government of Canada was one of only four countries not to sign.
In 2010, Canada reversed its position and signed the declaration. Indigenous leaders often highlight the declaration’s reference to free, prior, informed consent as an important standard for consultation on specific and strategic government decisions that may impact their rights. The federal government maintains that it is an aspirational document and as such, is not binding, however the language of UNDRIP is reflected in many government documents since 2010, such as the Updated Guidelines for Federal Officials to Fulfill the Duty to Consult.
Summary The activities and investments noted above indicate that some progress has been made on achieving reconciliation, through public acknowledgement of the pain and suffering of Aboriginal nations resulting from paternalistic policies. However, while a public apology has been made for many historical injustices, the government has stopped short of answering the ultimate call of the RCAP Report, for a new Royal Proclamation. Further, as noted through the activities of the Truth and Reconciliation Commission and the Aboriginal Healing Foundation, it will take time to heal the wounds of the tens of thousands of Aboriginal survivors of residential schools.
15 United Nations General Assembly, 107th session. Declaration on the Rights of Indigenous Peoples. 13 September 2007.
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 27 .
Nation Building Beyond reconciliation, empowerment of Aboriginal nations with the capacity for self-government was and remains a significant feature of creating a modern, renewed relationship. Recognizing and enabling Aboriginal governments would require a significant investment but is considered by many a natural extension of the rights affirmed in Section 35 of the Constitution Act. Progress on the transfer of governing authority, lands and resources has been slow and often mired in legal complexity.
In particular, increasing the land base and transferring governing authority remain areas of slow progress. However, that is not to say there has been no progress – nine modern treaties or comprehensive land claims agreements have been signed, including the Yukon Agreements. Additionally, the Specific Claims Tribunal was created in 2007, to reform the specific claims process. Specific developments are explored below, however in general nation building remains an area for significant progress to be made. First Nations Land Management Act In 1996, 14 First Nations and the federal government signed the Framework Agreement on First Nations Land Management, which was ratified through the 1999 First Nations Land Management Act. The Act creates the First Nations Land Management Regime, which allows participating First Nations to opt out of certain land-related provisions of the Indian Act, and to enact their own laws to manage reserve land, resources and environment under a land code established by the First Nation. The regime has since been expanded beyond the 14 original signatories; 67 First Nations are now operating or developing land codes under the regime. While the regime does not provide for full-fledged self-government, some see it as a practical step towards self-government.
Specific Claims Tribunal The federal specific claims process has been the subject of frequent legal and policy reform initiatives intended to reduce the backlog of outstanding claims. In response to a 2006 report of the Standing Senate Committee on Aboriginal Peoples that highlighted the need for reforms to the specific claims process in several areas the federal government launched Specific Claims: Justice at Last – Canada’s Specific Claims Action Plan in June 2007. The reforms proposed in the action plan included an independent tribunal to make binding decisions on claims that cannot be resolved by negotiations, dedicated funding for specific claims settlements, and practical measures to improve the processing of both small and large claims
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 28 .
As a result, the Specific Claims Tribunal Act was introduced in the House of Commons on 27 November 2007 and came into force on 16 October 2008 to deal specifically with alleged breaches of treaties, fraud, illegal dispositions, or inadequate compensation, related to reserve lands. The Act creates the Specific Claims Tribunal, an administrative tribunal composed of Superior Court judges with authority to make binding decisions on claims and to award monetary compensation up to a maximum of $150 million per claim.
The Act stipulates that a First Nation may file a claim with the tribunal if the claim has been previously filed with the minister of Aboriginal Affairs and Northern Development Canada, and if:
• The minister has notified the First Nation of his or her decision not to negotiate the claim, in whole or in part, after the coming into force of the Act; • Three years have elapsed after the day on which the claim was filed with the minister, and the minister has not notified the First Nation in writing of his or her decision on whether to negotiate the claim; • In the course of negotiating the claim, before the three years have elapsed, the minister consents in writing to the filing of the claim with the tribunal; or • Three years have elapsed after the day on which the minister has notified the First Nation in writing of his or her decision to negotiate the claim, in whole or in part, and the claim has not been resolved by a final settlement agreement. • In effect, the Specific Tribunal Act introduces a three-year time horizon for the assessment and negotiation of specific claims. The Tribunal has settled 95 claims totaling $1.8 billion dollars between 2007 and 2013.
Clarification of the Duty to Consult and Accommodate Section 35 of the Constitution Act, 1982 gives constitutional protection to “the existing aboriginal and treaty rights of the aboriginal peoples of Canada.” At the time of RCAP, multiple questions remained as to the nature of Aboriginal rights; since then, the Supreme Court of Canada has since decided four landmark decisions, which shape approaches to consultation and accommodation today. These cases provided the opportunity to establish important tests to determine the content and existence of Section 35 rights, in turn shaping current policy and practice (see Appendix A):
• R v. Van der Peet, [1996] • Delgamuukw v. British Columbia, [1997] • R. v. Powley [2003] • Haida Nation v. British Columbia (Minister of Forests), [2004]
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 29 .
With these decisions has come more focused efforts to develop policies and frameworks for fulfilling the federal Crown’s Duty to Consult. These efforts, in turn, are being translated into specific opportunities for Aboriginal nations to benefit from and participate in resources development.
Manitoba Métis Federation Inc. v. Canada (Attorney General), 2013 SCC 14
On March 8th, 2013, the Supreme Court of Canada partially decided in favour of the Métis people in Manitoba Métis Federation Inc. v. Canada (Attorney General), 2013 SCC 14.
The Manitoba Métis Federation (MMF) began their case in 1981.16 The MMF’s action rose from promises made in the Manitoba Act, 1870. The case languished for 26 years, eventually obtaining a decision from the Manitoba Court of Queen’s Bench in 2007, from the Manitoba Court of Appeal in 2010, and from the Supreme Court of Canada in 2013.
The MMF sought a declaration that the lands promised to the Métis of Manitoba under Section 31 and Section 32 of the Manitoba Act, 1870 were unfulfilled in accordance with the Crown’s fiduciary and honour of the Crown obligations.
Dating back to Royal Proclamation, the principle behind the honour of the crown requires servants of the Crown to act with honour on behalf of the sovereign, and is based on the Crown’s assertion of sovereignty over Aboriginal people, land, and resources formerly under their control.17 As stated in the Supreme Court ruling, “[t]he ultimate purpose of the honour of the Crown is the reconciliation of pre- existing Aboriginal societies with the assertion of Crown sovereignty.”18
A fiduciary is to avoid all conflict of interests, account for all property held or administered, and act in the best interest of those whose behalf he is acting. With respect to Aboriginal-Canadian relations, fiduciary duties generally arise only where the Crown has control over specific Aboriginal interests or from an explicit undertaking.19
16 MLB-Slaw Selected Case Summaries. (May 28, 2014) Available online. 17 J. Teillet, J Madden, Manitoba Metis Federation v. Canada (Attorney General): Understanding the Supreme Court of Canada’s Decision, 2014. Available online 18 Manitoba Métis Federation Inc. v. Canada (Attorney General), 20113 SCC 14, para 66 19 J. Teillet, J Madden, Manitoba Metis Federation v. Canada (Attorney General): Understanding the Supreme Court of Canada’s Decision, 2014. Available online
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 30 .
The Supreme Court varied the judgments of Manitoba Courts in this matter, deciding that the MMF case had standing to proceed, as their claim was based on a promise made by the Government of Canada in return for the agreement of the Métis of Manitoba’s recognition of Canada’s assertion of sovereignty.
With respect to the honour of the Crown, the Supreme Court held that Section 31 of the Manitoba Act was part of Canada’s constitution and thus engaged the honour of the Crown. The Supreme Court held that the combination of a delay of over 10 years to make the land allotments to Métis children, the Manitoba legislature passing acts that encouraged land speculation, and insufficient compensation for the delay by way of devalued scrip redeemable for land put the Crown in breach of fulfilling the honour of the Crown. The Supreme Court did not accept MMF’s claim that the relevant provisions of the Manitoba Act attracted fiduciary obligations. The Supreme Court said that there was nothing in sections 31 and 32 that “contemplated the collective entitlement to a land base for the Metis qua Metis.”20
The Supreme Court significantly said “[S]o long as the issue remains outstanding, the goal of reconciliation and constitutional harmony, recognized in s.35 of the Charter and underlying s. 31 of the Manitoba Act, remains unachieved.”21
The Supreme Court declared a breach of the honour of the Crown in its failure to implement the constitutional promises contained in the Manitoba Act. The MMF has taken the initiative to create the Land Claims Strategic Investment Committee, which may assist in negotiations, addressing matters such as compensation. At the time of this writing, no negotiations are currently underway.
Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 In June 2014, the Supreme Court of Canada unanimously recognized the Tsilhqot’in Nation’s claim to a 1700 square km tract of land in British Columbia.22 This is the first time the courts have declared Aboriginal title, making it a landmark moment that also serves to clarify issues of how to prove aboriginal title.23 The decision will
20 Manitoba Métis Federation Inc. v. Canada (Attorney General), 20113 SCC 14, para 140, Headnote 21 Manitoba Métis Federation Inc. v. Canada (Attorney General), 20113 SCC 14, para 140 22 Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII), retrieved on 2014-06-27 23 Bradley , Andrea and Senwung Luk. Blog post: “In a First for Canadian Court, SCC Recognizes Aboriginal Title for Tsilhqot’in Nation”. June 26, 2014. Available online: http://www.oktlaw.com/blog/in-a-first-for-a-canadian-court-scc-recognizes-aboriginal-title-for- tsilhqotin-nation/
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 31 . apply wherever there are outstanding land claims, meaning it will have profound impacts on how economic and particularly resource development proceeds on First Nations lands.
The case dealt with the Tsilhqot’in’s claim to an area of land in central British Columbia. In 1983, the BC government issued a commercial logging license on land claimed by the Tsilhqot’in Nation to be part of their traditional territory. Following discussions with the province, the case made its way to the Supreme Court of British Columbia, which used a narrow test based on regular and exclusive use of specific sites within the territory to determine the title claim. The Supreme Court of British Columbia ultimately decided that title had not been established, a decision that was upheld by the British Columbia Court of Appeal.
In its case to the Supreme Court of Canada, the Tsilhqot’in Nation argued that the Court had failed to recognize its way of life as a semi-nomadic nation with few permanent encampments. The Supreme Court agreed in its decision that a semi- nomadic tribe can claim title for land use only some of the time, based on a three- part test that establishes:
1. Occupation 2. Continuity of Occupation 3. Exclusivity of Occupation
The case also establishes what Aboriginal title confers, including the right to benefits generated by development of the land, and the right to use, enjoy and profit from it. However, the Courts noted that justifiable infringements could be allowed so long as the duty to consult and accommodate is fulfilled, or the case for development has a compelling a substantial public purpose, and the fiduciary obligations of the Crown are met.
First Nations groups have responded positively to the case. Grand Chief Stewart Phillip of the Union of B.C. Indian Chiefs indicated the ruling is the start of “genuine dialogue of reconciliation that has eluded us for so long.”24 At the same time, the decision will likely raise concerns among industry about the future of resource development in light of the case. Many also noted that this case will have broad implications for land claims across the country, notably in Quebec and on the East Coast.25
24 Hildebrandt, Amber. “Supreme Court's Tsilhqot'in First Nation ruling a game-changer for all” CBC News. June 27, 2014. Available online: http://www.cbc.ca/news/aboriginal/supreme-court-s- tsilhqot-in-first-nation-ruling-a-game-changer-for-all-1.2689140 25 ibid.
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 32 .
Economic empowerment, lands, resources, wealth generation and redistribution Adequate financial resources are an important aspect of effective self-government. As RCAP noted, increasing opportunities for wealth-generation, through access to land and resources, as well and redistribution and economic development, is an important aspect of advancing the governance capacity of Aboriginal nations. A number of specific recommendations from the RCAP report have been acted upon, however as with previous sections, the capacity for wealth generation across Aboriginal nations remains quite diverse, with some nations emerging as economic powerhouses, while others languish. In part, this is the result of an ongoing federal spending cap, which has kept transfers from the federal government fixed at a 2% growth rate, but also it reflects a lack of immediate action on the transfer of land and resources to Aboriginal control, as well as capacity and financial management issues in some communities.
Indigenous Institutions The First Nations Fiscal and Statistical Management Act (FSMA) was entered into force on April 1, 2006. The Act was developed to address economic development and fiscal issues on-reserve so as to improve certainty, confidence and infrastructure for participating First Nations, taxpayers and investors. It created the legislative framework to establish four national institutions:
• The First Nations Tax Commission (FNTC), a shared-governance corporation that regulates and streamlines the approval of property tax and new local revenue laws of participating First Nations, builds administrative capacity through sample laws and accredited training, and reconciles First Nation government and taxpayer interests. • The First Nations Financial Management Board (FNMB), a shared- governance corporation that assists all First Nations in strengthening their local financial management regimes and provides independent certification to support borrowing from First Nations Finance Authority and for First Nation economic development. • The First Nations Finance Authority (FNFA), a non-profit corporation that permits qualifying First Nations to work co-operatively in raising long-term private capital at preferred rates through the issuance of debentures, and also provides investment services to First Nations and First Nation organizations. • The First Nations Statistical Institute (FNSI), an autonomous First Nations- led Crown corporation established to increase the quality and accessibility of First Nations statistics to improve planning, decision-making, and investment for all First Nations as well as federal, provincial, and territorial
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 33 .
governments. In March 2012 the federal government determined to eliminate all funding for this institute by the 2013-2014 fiscal year.
As of February 2014, the First Nations Finance Authority has now issued its first bond, raising $100M and receiving an A3 rating by Moody’s Investors Service. This financing will be available for 20-30 First Nations for infrastructure projects.
Guidelines for Federal Officials to Fulfill the Duty to Consult As noted above, efforts to clarify the intent of Section 35 have increased control or decision-making powers over land and resource development for some Aboriginal nations. To further advance this, in 2007 the federal government created the Consultation and Accommodation Unit within Aboriginal Affairs and Northern Development Canada (AANDC) and announced plans to create guidelines for fulfilling the duty to consult. Draft guidelines were released in 2008 and subsequently updated in 2011.
The Guidelines are intended to:
• Acknowledge and respect the Crown’s unique relationships with Indigenous peoples; • Promote reconciliation of Indigenous and other societal interests; • Integrate consultation into government day-to-day activities, e.g. environmental and regulatory processes; • Reconcile the need for consistency in fulfilling the Crown’s duty to consult with the desired flexibility, responsibility and accountability of departments and agencies in determining how best to do so; and • Foster better relations between the federal government and Indigenous peoples, provinces, territories, industry and the public
Some nations have turned their Section 35 rights into opportunities to create Impact Benefit Agreements with industry, however these agreements take considerable time and expertise to develop. These guidelines are a useful tool for accessing the benefits of development, however they do not necessarily enhance Aboriginal control over lands and resources.
Federal Framework for Aboriginal Economic Development In 2009, the federal government released the Federal Framework for Aboriginal Economic Development. Recognizing a growing population, land base, entrepreneurial leadership and interest from the private sector, the framework prioritizes:
• Strengthening Aboriginal entrepreneurship • Developing Aboriginal human capital
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 34 .
• Enhancing the value of Aboriginal assets • Forging new and effective partnerships • Focusing the role of the federal government
Since the launch of the framework, a number of programs have been launched to advance the development of Aboriginal Human Capital:
• Aboriginal Skills and Employment Training Strategy (2010): provide $1.68B over five years, to replace the Aboriginal Human Resources Development Strategy and improve labour market outcomes, and foster partnerships with the private sector and provinces.
• Skills Partnership Fund (2010) $210M over five years to encourage innovation and partnerships, test new approaches to the delivery of employment services, and address gaps in service delivery.
• Aboriginal Skills and Employment Partnership (launched 2003, extended 2007 and 2009): support training and employment strategies for job opportunities associated with large-scale economic development projects.
While there appears to be support for the ASETS program from First Nations communities, requests for more funding and greater autonomy have been made by representatives of AFN and other Aboriginal organizations.26
Summary Economic development remains a priority for numerous Aboriginal nations. The progress made by is, unfortunately, overshadowed by the fact that many Aboriginal nations remain mired in poverty and lacking adequate financial resources. The development of Aboriginal institutions, in particular Aboriginal Capital Corporations has been lauded by many as a step in the right direction, and the Federal Framework for Aboriginal Economic Development is also examining way to advance the outcomes of Aboriginal people. However, continued action is required to promote economic empowerment of both nations and individuals. Further, the recent landmark decision in the Tsilhqot’in case introduces a new precedent for the recognition and application of Aboriginal title, which is likely to have considerable impact on the ability of First Nations to move towards self-governance and economic self-sufficiency in the future.
26 Canada, Parliament, House of Commons. Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities. (2012). Evidence: Monday, February 27, 2012. 41st Parliament, 1st Session. Retrieved from: http://www.afn.ca/uploads/files/ec_dev/afn_presentation_to_huma_committee,_feb_27,_2012.pdf
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 35 .
Closing Social and Economic Gaps Healthy economies require healthy people, both in body and in mind. Against the backdrop of historical injustices, RCAP focused multiple priorities for advancing the physical, social, emotional and spiritual health of Aboriginal nations.27 However, while some advancements have been made, such as in the health outcomes of Aboriginal peoples, many of RCAP’s recommendations surrounding the social and economic gaps remain.
The Family and Community RCAP prioritized child-care and child welfare reform, noting the overwhelming importance that children and families played in the hearings of the commission. With hopes and aspirations of First Nations invested in their children, the Commissioners identified as child and family welfare reform as the key to unlocking the transformation sought by communities.
Recommendations ranged from combatting family violence, promoting child-care and welfare reform, empowering women with full and equal participation in decision-making bodies, civil and family law reforms, and the role of culture and heritage in determining the ‘best interest of the child.’
Progress on early childhood education, child-care and child and family services remains a priority for First Nations, who have identified this as an area lagging behind other advancements. The 2006 10-year AFN Report Card on RCAP recommendations highlighted a lack of progress on this issue as a key concern, which the AFN continues to protest.
In 2007, the AFN and the First Nations Child and Family Caring Society of Canada jointly launched a Canadian Human Rights complaint against the federal government. The joint complaint refers to “the discriminatory provision of child and family services on-reserve,” stating that unequal funding for child and welfare services for First Nations children on reserves has become a longstanding pattern resulting in inequitable services, in contrast to the services received by non- Aboriginal children. Hearings began in February 2013
Aboriginal Affairs and Northern Development Canada notes that funding for child and welfare services has more than doubled over the past 14 years, however at the
27 As previously noted, the federal government enacts the Crown’s fiduciary duty to serve on-reserve populations, delivering social programming and services to these populations, while provinces are responsible for off-reserve service delivery. This paper primarily focuses on the evolution of programming and services led by the federal government, however notable examples involving provincial leadership in innovative service delivery for health and education programming are highlighted.
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 36 . same time the costs of providing care have risen significantly. For this reason, AANDC’s policies were shifted in 2007 to an Enhanced Prevention Approach.
Health Persistence gaps in the health and wellness between Aboriginals and non- Aboriginals prompted the Commission to address health and healing. Two major pillars were identified: restructuring health and social services to provide greater control to aboriginal Canadians, and mobilizing and training a larger number of aboriginal health personnel. Other recommendations included the creation of Integrated Healing Centres, recognizing traditional healing and healers, and addressing the social and environmental determinants of health.
The 2003 First Ministers’ Accord on Health Care Renewal recognized the dedicated efforts needed to advance Aboriginal health outcomes. This included reference to enhanced funding and working collaboratively with other governments to meet defined objectives found in that report. The 2004 10-Year Plan to Strengthen Health Care further committed to advancing Aboriginal health outcomes through collaboration, as well as increased supply of health care professionals.
Measures introduced since then include: the Aboriginal Health Transition Fund, to support the adaptation of services to better meet the needs of Aboriginal populations (2004/05); the Health Services Integration Fund (5-year fund announced 2010), which builds on the AHTF; and the Aboriginal Human Resources Initiative, aimed at attracting and training a higher number of Aboriginal health professionals.
RCAP also called for the creation of an Aboriginal Health Institute to develop better knowledge and understanding of how to address the health needs of Aboriginal peoples. In 2000, the National Aboriginal Health Organization was created (originally called the Organization for the Advancement of Aboriginal Peoples Health). The funding for this body was cut in 2012 and it has since been shuttered.
A number of provinces have begun to implement innovative measures to provide better services through collaboration. The most notable example is in British Columbia, where the province, Health Canada and First Nations signed a tripartite agreement (in 2007), leading to the creation of the First Nations Health Authority (in 2012). The FNHA sets out a new governance structure for the control of health care services currently under the responsibility of Health Canada’s First Nations and Inuit Health Branch. Similarly, in 2010, Saskatchewan signed a memorandum of understanding to establish its own tripartite agreement in view of a 10 year health plan for First Nations, while in Ontario, the Trilateral First Nations Health Senior
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 37 .
Officials Committee was created in 2011 in partnership with the Chiefs of Ontario and the federal government.
Recently, attention has also been focused on the Non-Insured Health Benefits program, with AFN calling for an immediate and fundamental transformation to a program in crisis. In 2011, AFN estimated the shortfall (driven by a combination of budget cuts and growing enrolment) for 2012-13 to have been $376 million, followed by $805 million over the next five years.
Overall, adequate funding for health remains a priority, which will likely continue to impede progress on health outcomes for First Nations. As noted by the Health Council of Canada in their Progress Report 2013: Health care renewal in Canada, stable and predictable funding, ensuring cultural competency of health care providers, working with Aboriginal communities, and addressing the determinants of health remain priority areas of focus to improving Aboriginal health outcomes.
Housing The RCAP report recognized that advancing the socio-economic and health outcomes for Aboriginal peoples necessitates a holistic view of the determinants of health. Housing conditions were identified as a priority, including the recommendation that government uphold its obligation to provide adequate water, shelter, and sanitation services. Recommendations for on-reserve housing consisted of providing funds for regular maintenance, providing rental subsidies and other financial incentives. Solutions for off reserve housing related largely increasing funding for new social housing under Aboriginal off-reserve programs of the Canada Mortgage and Housing Corporation.
In 1996 the On-Reserve Housing Policy of the Government of Canada was introduced. While the policy in principle commits to First Nations control, expertise, shared responsibility, and private sector funding, adequate housing remains a concern. In 2011, the federal government released an evaluation of First Nations housing which concluded that on-reserve housing shortages were severe and would only get worse. The report suggested 20,000-35,000 new units were needed to address the immediate shortage. The challenge is further compounded by the poor living conditions and overcrowding that afflicts many First Nations, with residents facing mold, flooding, and general deteriorating.
Prior to AANDC’s evaluation, the AFN predicted that between 2010 and 2031, a backlog of 130,000 units will emerge, 44% of existing units will require major repairs, and 18% will require replacement. Presently, the federal government has developed a strategy to examine, but not address (i.e. fix) the mold problem.
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 38 .
AFN Resolution 83/2011, Housing as a National Priority, continues previous calls for recognition of First Nations’ role in the management and control of housing policy and delivery. AFN advocates a right-based approach to housing, and has created a series of recommendations, most recently discussed at the 2013 Annual General Assembly.
Beyond federally provided housing, access to home ownership through the 2007 Aboriginal Housing Program is being facilitated for some communities through Canada Mortgage and Housing Corporation (CMHC), in partnership with Habitat for Humanity. The program matches families on- and off-reserve with local Habitat for Humanity affiliates, who raise funds and seek donations. CMHC also seeks to provide innovative solutions for communities, including programs for renovations, home ownership, and mold remediation.
Education Canada is a world leader in education, yet numerous gaps persist between the educational attainments of Aboriginal and non-Aboriginal Canadians. As the Commissioners noted, Aboriginal people have consistently articulated goals for education that reflects their culture, heritage and values, yet policy has failed to reflect these. Building on the emphasis throughout the report on prioritizing a strong future, recommendations under the education section ranged from developing education authorities and Aboriginal controlled education systems, early childhood education, Aboriginal educators, and the creation of an Aboriginal People’s University.
Many of these recommendations have been the subject of ongoing efforts for reform, yet policy developments have been few. Spending on education has been capped at 2% growth since the mid-1990s. As the AFN has noted, graduation rates have not risen since 1996 (35% for First Nations schools), yet graduation rates have begun to rise for First Nations controlled schools, such as those administered by the Mi’Kmaw Kina’matnewey in Nova Scotia.
The Mi’kmaq Education Agreement signed in 1998 between the Mi’kmaq First Nation and the Government of Nova Scotia is a landmark agreement that provides for local control of education. The comprehensive Master Education Agreement, between the province and the Mi’kmaq, replaces all tuition agreements between school boards and the 10 First Nation bands. It secures a common tuition cost for on-reserve students, allowing the bands to become self-governing in education. A common reporting structure is used to track progress and performance against defined achievement standards. As noted above, the AFN has noted the progress of schools controlled under the Mi’kmaq Education Agreement as an example of the
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 39 . potential for increased educational attainment among First Nations youth in First Nations run schools.
Summary While RCAP envisioned a future where the social and economic outcomes would increasingly be determined by Aboriginal nations, in reality this has yet to be achieved. Childcare, health care, housing and education remain largely under the control of the federal government, and spending has been capped for many years, effectively penalizing Aboriginal peoples. Recently, significant attention has been placed on the education file, which will be discussed below. However, judging against the recommendations of RCAP, progress on advancing the social outcomes (and control over the programs and institutions that determine these), has been dictated largely by the federal government and not by Aboriginal nations themselves.
Further, in June 2011, the Auditor General of Canada issued a Status Report condemning the inadequacy of federal programs and services on First Nations reserves.28 The report identified structural impediments to progress on reserve, including: lack of clarity about service levels; lack of a legislative base; lack of an appropriate funding mechanism; and lack of organizations to support local service delivery. Further, the audit identifies key service areas where progress has been notably absent in the ten years preceding the report: closing the educational gap, improving drinking water quality, ensuring an adequate housing supply, providing comparable child care services, and lessening the reporting burden on First Nations. With respect to implementing comprehensive land claims agreements, the report noted that it was too early to assess whether action on this front had been adequate.
28 Office of the Auditor General of Canada, June 2011. 2011 June Status Report of the Auditor General of Canada. Available online: http://www.oag- bvg.gc.ca/internet/english/parl_oag_201106_04_e_35372.html
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RECENT DEVELOPMENTS AND ONGOING PRIORITIES The preceding sections demonstrate that progress on the recommendations of the RCAP report remains slow, with notable examples of both successes and challenges. However, while in some cases slow but steady progress is the only way to proceed, a new sense of urgency has emerged in recent years. Some of this has occurred against the backdrop of the rapid transformation of the Canadian economy into a natural resource powerhouse, with new developments sprouting up rapidly across the country. As resource development intensifies, the intersection of Aboriginal nations and the future of the Canadian economy have provided a focal point for discussions about the need for reconciliation and Aboriginal self-government.
This dialogue has manifested itself in both national events as well as local and regional conversations. Once again, the overarching issue of reconciliation is taking centre stage, while specific issues such as education are also being addressed, with varying success. The following section will review a number of events and activities from recent history that provide insight into where the future of reconciliation lies.
Canada-First Nations Joint Action Plan and Gathering In 2011, the Canada-First Nations Joint Action Plan was released which set forth the intention of the parties to work on four mutually identified priorities:
1. Education 2. Accountability, transparency, capacity and good governance 3. Economic development 4. Negotiation and Implementation
The Joint Action plan was a response to a call put forth by AFN following the 2010 Annual General Assembly. The Joint Action Plan set a commitment to a Crown-First Nations gathering, which took place January 24, 2012.
In preparation for the meeting in January 2012, the AFN released the 2012 First Nations Plan: Honouring our Past, Affirming our Rights, Seizing our Future. This document sets forth a vision for “smashing the status quo” to make significant progress on the basis of respect, recognition and reconciliation.
The recommendations of the 2012 strategy, as they relate to reconciliation and relationship renewal, include:
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1. Agreement to holding such gatherings at regular intervals for the purposes of relationship-building, measuring progress, and confirming an agenda for the future 2. Treaty First Nations will bring forward recommendations to the Crown as to how to proceed with treaty implementation 3. Developing a process for jointly determining a strategy for Crown – First Nations Framework Agreement on advancing the relationship 4. Establishing principles and approaches for joint legislative developments, on an interim basis until the full implementation of First Nation laws, on matters affecting First Nations rights and interests.
In particular, the recommendations for holding regular gatherings and examining options for a Crown – First Nations Framework or Agreement on advancing the relationship can be seen as directly stemming from the unfulfilled RCAP recommendations for a forum for dialogue between the government and Aboriginal nations.
The document also called for key policy reforms on such issues as self-government and comprehensive claims, based on a “clear political commitment to change based on the principles of recognition and affirmation rather than denial and extinguishment.”29
A follow-up to the Crown-First Nations gathering was convened on January 11, 2013. Idle No More On December 10, 2012, a national day of action was held to protest the lack of consultation and the failure of successive governments to live up to the promises of the treaties. This inaction, they assert, has led to “a history of colonization which has resulted in outstanding land claims, lack of resources and unequal funding for services such as education and housing.”30
The impetus for action was the introduction of Bill C-45, which has now made broad changes to the way decisions to advance resource development are made. The organizers called on indigenous and non-indigenous Canadians to join in active resistance against what they call neo-colonialism, the assertion of indigenous rights and the reinstitution of traditional laws and Nation-to-Nation treaties in order to promote environmental sustainability.
29 Assembly of First Nations. Crown – First Nations Gathering. Next Steps. February 2012. 30 The Manifesto, www.idlenomore.ca. Retrieved March 30, 2014.
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The vision, as outlined in January 2013 following the meeting of the Prime Minister and Chiefs to mark the one-year anniversary of the Crown-First Nations gathering, is to advance indigenous knowledge and sovereignty:
“Idle No More seeks to assert Indigenous inherent rights to sovereignty and reinstitute traditional laws and Nation to Nation Treaties by protecting the lands and waters from corporate destruction. Each day that Indigenous rights are not honored or fulfilled, inequality between Indigenous peoples and the settler society grows.”31
The movement plans to accomplish the goals of environmental protection and indigenous sovereignty largely through media engagement, public information campaigns, and active resistance through public events such as the national day of action. Bill C-33: First Nations Control of Education Act Following the Statement of Apology by the Prime Minister of Canada in 2008 on Indian Residential Schools, AFN applied increased pressure for action on First Nations education. In response, the Honourable John Duncan, Minister of Aboriginal Affairs and Northern Development Canada, and Mr. Shawn A-in-Chut Atleo, National Chief of the Assembly of First Nations launched the National Panel on First Nations Elementary and Secondary Education, in June 2011.
The panel made five recommendations:
1. Co-create a Child-Centered First Nation Education Act 2. Create a National Commission for First Nation education to support education reform and improvement 3. Facilitate and support the creation of a First Nation education system through the development of regional First Nation Education Organizations (FNEO) to provide support and services for First Nation schools and First Nation Students 4. Ensure adequate funding to support a First Nation education system that meets the needs of First Nation learners, First Nation communities and Canada as a whole 5. Establish an accountability and reporting framework to assess improvement in First Nation education.
Throughout 2013, the federal government and First Nations worked towards a new framework for Aboriginal Education. While the process hit a number of roadblocks, including public admonishments from AFN opposing unilateral control and efforts
31 ibid.
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 43 . by AANDC, an agreement was reached and announced on February 7, 2014. The statutory framework includes five conditions, which AFN pushed for throughout the process:
1. Respect and recognition of inherent rights and title, Treaty Rights and First Nations control of First Nations education jurisdiction. 2. Statutory guarantee of funding 3. Funding to support First Nations education systems that are grounded in Indigenous languages and cultures 4. Mechanisms to ensure reciprocal accountability and no unilateral federal oversight or authority. 5. Ongoing meaningful dialogue and co-development of options.
The resulting legislation, Bill C-33, the First Nations Control of First Nations Education Act, promised $1.9B in funding over 10 years to close the funding gap between Aboriginal and non-Aboriginal schools.
However, numerous First Nations leaders stepped forward calling for the bill to be rejected as an attempt to force a one-size fits all approach on the diverse nations that would be impacted. After significant debate, the Confederacy of Nations, a governing body within the Assembly of First Nations, met and voted against the bill, rejecting it as insufficient, leading to the resignation of National Chief Shawn Atleo. At this time, many First Nations leaders have called on the government to negotiate unique agreements, instead of the single-agreement approach that was originally taken. Taking Action to Advance Treaty Negotiations and Reconciliation In July 2014, the Government of Canada announced it will continue to implement the recommendations of the Eyford Report, focusing on the recommendations under the section “Advancing Reconciliation.” This will include an engagement process to develop a Framework for Addressing Section 35 Rights, under the direction of Douglas Eyford as Ministerial Special Representative. Aboriginal groups and key stakeholders will be engaged to determine options for renewing and reforming the Comprehensive Land Claims Policy.
Further actions announced in July include:
• Negotiating Non-Treaty Agreements: The Government signaled its willingness to consider proposals for treaty negotiation with Aboriginal groups not currently engaged in negotiation. The government will also consider participating in similar provincially-led negotiations.
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 44 .
• Negotiating Incremental Treaty Agreements: intended to be a more flexible approach to negotiation, the federal government is introducing a mandate to negotiate incremental treaties for groups already in the treaty process. A final treaty is the ultimate goal, however incremental treaties are seen as a way to achieve more immediate benefits for nations , which will build momentum for final treaties. • Enhancing Canada’s Approach to Aboriginal Consultation: the government plans to negotiate more consultation protocols in areas of high resource development, while also engaging on the existing guidelines for federal officials. This engagement will also include new guidance for industry. • Facilitating Resolution of Shared Territory Disputes: the government signaled their willingness to provide support for Aboriginal nations engaged in territory disputes, noting that while the ultimate resolution must be decided by those nations. Proposed measures include providing support for alternative dispute resolution and information-gathering.
Finally, it was also announced that the government would be moving forward to address other major issues noted in the Eyford report and other dialogues. Changes to the Own-Source Revenue policy will be made, so that program transfers for health, education and social programs will not be based on an Aboriginal government’s own-source revenue. National Public Inquiry into Missing and Murdered Aboriginal Women A significant justice issue has emerged in recent years through growing calls for a national public inquiry into missing and murdered Aboriginal women. On February 13, 2014, the Native Women’s Association of Canada (NWAC) presented the Prime Minister’s Office with more than 23,000 signatures in support of a call for the inquiry. Public pressure for such an inquiry has been prompted by NWAC’s documentation of 582 missing or murdered Aboriginal women across Canada. On March 7, 2014, the Special Parliamentary Committee on Violence Against Indigenous Women issued the report Invisible Women: A Call to Action. While the report calls for a public awareness and prevention campaign, it notably did not call for a public inquiry into missing and murdered Aboriginal women. In response, NWAC, Aboriginal groups and opposition parties expressed disappointment at the failure of the committee to recommend a public inquiry, and efforts to advance a national inquiry remain underway.
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 45 .
CHARTING A COURSE Approaching the twentieth anniversary of the Royal Commission on Aboriginal Peoples presents a unique moment to reflect on what has changed for indigenous nations and all Canadians as a result of this landmark process. Rarely has such a focused investment of time and attention been directed to addressing an issue in the way that it was for RCAP. In itself, the report from RCAP represented important recognition of the struggles and challenges that have faced generations of indigenous nations. At the same time, without action, these words would provide little comfort to people in need of spiritual healing, as well social and economic support.
Further, as a national movement emerges to mark the Canadian sesquicentennial and celebrate 150 years since Confederation, important conversations are being had about the Canadian identity, both past and future. As the Commission noted, our relationship with Aboriginal nations is a fundamental aspect of our past, present and future, and therefore a necessary part of our identity. Indeed, the identities of Aboriginal peoples across Canada are themselves an essential part of the Canadian identity.
Engaging in these dialogues, over the future of Aboriginal peoples and of the Canadian identity, necessitate an understanding of where we have been. It is in this context that the IOG intends to convene a dialogue on indigenous governance, beginning with a discussion of how, 20 years following the report of the Royal Commission on Aboriginal Peoples, indigenous self-government and reconciliation between Aboriginal nations and the Crown have advanced.
As noted above, our goal in advancing a new dialogue is three-fold:
• To assist indigenous governments to meet their governance aspirations in a manner that reflects their desire, capacity, priorities, and socio-economic realities; • To increase capacity for governments and communities to participate in and benefit from evidence based research and open discussion that better supports their governance structures; and • To create a fertile ground to advance the public dialogue on the future of indigenous governance in Canada.
The goal of this paper is to support a dialogue on where we have come from, and where we are going. The final section below offers questions and considerations for further discussion on the future of reconciliation and self-government.
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 46 .
Restructuring the Relationship • A cornerstone recommendation of the RCAP report was the creation of a new Royal Proclamation. What would such a statement look like? • How have efforts to advance healing, such as the 2008 Statement of Apology from the Prime Minster, and the Aboriginal Healing Foundation’s activities, With the winding up of the mandates of important reconciliation bodies including the Aboriginal Healing Foundation, and the Truth and Reconciliation Commission, what have we learned about reconciliation? • How can we translate the enormous body of research generated by these bodies into new activities to advance the process of reconciliation? • Has public education, a central element of the Commission’s recommendations, been sufficient to help non-Aboriginal Canadians to understand the imperative for healing and reconciliation? • How have recent public activities, such as the Idle No More movement and Chief Spence’s hunger strike, contributed to consciousness-raising among non-Aboriginals of the historic injustices suffered by Aboriginal nations?
Nation Building • What types of mechanisms will enable greater control over decision-making, and eventually lead to the full realization of Aboriginal self-governance? • What are the obstacles to nation re-building and re-constituting (in efforts to address overlapping claims, etc)? • Are Aboriginal nations empowered with the full resources they need to achieve self-government? What resources, land or otherwise, do communities need to achieve their governance aspirations? • Which components of self-government should we prioritize for nations lacking adequate control over decision-making? Do we need to focus on the economic/fiscal components, social structures, land management, etc? Does one area of decision-making lend itself more naturally to enhanced governance capacity as a first step? • What are the capacity-building activities needed to advance self- government? What has been effective? • Is Aboriginal citizenship still an important, unfulfilled, recommendation from RCAP? What does Aboriginal citizenship constitute? How is that nation constituted in light of the changes in residency?
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 47 .
Economic empowerment, lands, resources, wealth generation and redistribution
• Which relationships do indigenous communities need to cultivate to advance self-governance aspirations? How can these relationships form the basis of meaningful partnerships? • How can the private sector form relationships with indigenous communities in a manner that supports reconciliation efforts, while providing opportunities to advance the self-governance aspirations of communities? • Can governments support the creation of mutually enhancing relationships between indigenous communities and the private sector?
Closing Social and Economic Gaps • How can we use the community healing process started by the Truth and Reconciliation process to reveal community aspirations? Has this process set the stage for community development through the creation of locally-led programs to address ongoing socio-economic gaps? What would those programs look like? • In light of the rejection of Bill C-33, what are the next steps for advancing First Nations control over education? • What has the process surrounding the creation of Bill C-33 taught us about advancing greater control over social issues? • How can we take examples from other jurisdictions of successful approaches to education, and apply them to new contexts? • How can we create innovative programs that address the social determinants of health, focused on the unique needs of Aboriginal nations? What types of supports do we need to build (or re-construct) so that Aboriginal nations thrive? • What would an Aboriginal-led system of health care look like? • What successes has the First Nations Health Authority demonstrated that could prove replicable? • What are the immediate and long-term housing needs on-reserve? Do innovative partnerships or solutions exist to provide immediate relief for the housing crisis? • What can we do to advance equal access and conditions to childcare for First Nations?
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 48 .
APPENDIX A: NOTABLE LEGAL CASES Sparrow (identifying an aboriginal and treaty rights test) In Sparrow32 a Musqueam Band member was charged with violating the federal Fisheries Act.33 Sparrow argued that the act violated his existing treaty rights to fish as protected under s.35. The Supreme Court decision that followed not only defined key terms within s.35, but also established the original four-part test for determining the existence of an Aboriginal right.
“Is there an existing aboriginal right?”
Here the court defined an “existing” right as one that had not been extinguished prior to 1982.34
“Has the right been extinguished?”
The judiciary was careful to highlight the difference between extinguishment and regulation, stating that if a right had previously only been regulated by the government (as Sparrow’s right to fish had been regulated under the Fisheries Act) then it still existed and remained protected under s.35. The court elaborated that in order to prove extinguishment the Crown had to prove an explicit intention to remove an existing right.35
“Has there been a prima facie infringement of the right?”
Here the court held that the onus rested on the claimant to prove that the government had infringed their aboriginal right. The court provided relevant questions for determining infringement: was the limitation unreasonable, did the regulation impose undue hardship, and did the regulation deny the claimant their preferred means of exercising the right in question.36
“Can the infringement be justified?”
Here the onus rests on the government to provide justifiable legislative cause for infringement of the given right(s). Additionally, the Crown must prove it upheld the
32 R. v. Sparrow [1990] 1 S.C.R. 1075
33 R.S.C. 1985, c. F-14.
34 Sparrow, supra note 25 at paras. 23-27.
35 Ibid. at para. 36.
36 Ibid. at paras. 67-70.
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 49 .
Honour of the Crown through methods such as consultation, accommodation, and compensation to the claimant.37 This part of the Sparrow Test has been interpreted as reading section 1 of the Charter into s.35 because it holds that constitutionally protected aboriginal rights are not absolute. The court ultimately found that Sparrow had an existing right to fish.
Van der Peet (narrowing the aboriginal rights test) In Van der Peet,38 a member of the Stó: lō Nation was charged with illegally selling fish that had been lawfully caught under a food-fishing license. Within their decision the Supreme Court established a two-part sub-framework under Part 1 of the Sparrow Test for determining the existence of an aboriginal right. The court added both a requirement for the characterization of the claimed right, and a determination of whether the activity in question was an integral part of the aboriginal culture prior to European contact. The court proposed a 10-part test for determining whether an activity was “central” to an aboriginal culture.
This decision has been interpreted as severely narrowing aboriginal rights as protected in the constitution. Not only does the decision focus on rights as derived solely from cultural practices,39 but it also effectively “freezes” both aboriginal culture and rights through its centrality requirement.40 This centrality condition places Indigenous people in culturally static collectives, frozen in a “pre-contact” time.41 Not only does this limit rights recognition, it is also unrealistic. People and culture are constantly in flux. Furthermore, under this decision, activities that were and continue to be of great significance but were not carried out frequently enough to be considered customs and traditions by European standards risk being ignored.42 The court held that Van der Peet did not have a commercial right to sell fish because she could not prove that the trade of salmon was an integral aspect of the Stó: lō Nation’s traditional culture prior to European contact.
37 Ibid. at paras. 64.
38 R. v. Van der Peet [1996] 2 S.C.R. 507.
39 Honourable Justice Douglas Lambert. “Van der Peet and Delgamuukw: Ten Unresolved Issues.” UBC law Review Alumni Lecture. Vancouver, British Columbia. 26 Feb., 1998. Lecture.
40 Barsh, Russel Lawrence and James Young Henderson. “The Supreme Court’s Van der Peet Triology: Naïve Imperialism and the Ropes of Sand.” McGill Law Journal 42. (1997): 993-1009. p.1001
41 Olthius, Brent “The Constitution’s Peoples: Approaching Community in the Context of Section 35 of the Constitution Act, 1982.” McGill Law Review 54 (2009): 1-43. p.10 **Emphasis added.
42 Lambert
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Delgamuukw (determining the nature of aboriginal title) In Delgamuukw,43 hereditary chiefs from the Gitksan and Wet’suwet’en Nations claimed ownership and legal jurisdiction over what they claimed were traditional territories (roughly 58,000 square kilometres) in northwestern British Columbia. At the provincial court level, the judiciary decided that the two nations had no existing land rights within the province. Delgamuukw was then appealed to the Supreme Court. The Supreme Court did not make a definitive decision regarding the Gitksan and Wet’suwet’en Nations’ land rights. Instead the Supreme Court insisted another trial needed to be held while still providing a discussion regarding the nature of aboriginal title. This discussion built upon the court’s decision in Van der Peet by establishing a continuum through which to classify aboriginal rights in respect to their connection to the land.44 The court identified the highest classification along this continuum as aboriginal title, which they held as a sui generis, direct right to the land,45 as opposed to site- specific or practice and custom based rights. The court’s decision set out three criteria the claimant must satisfy in order to prove their right to Aboriginal title.46
• the claimant must prove aboriginal occupation of the land prior to the Crown’s assertion of sovereignty over the land in question;
• where current occupation is relied upon as proof, the claimant must show that there is continuity between present and pre-sovereignty occupation; and
• the claimant must show that at the time of the Crown’s assertion of sovereignty, that the aboriginal occupation of the land was exclusive.
The court stated here that exclusive occupation could be held by more than one Aboriginal group. Finally, the court held that the judiciary must give equal weight and consideration to oral and written evidence.47 This has been interpreted as a significant achievement, as Indigenous cultures tend to be based in the oral tradition.
R. v. Powley (determining the nature of Métis rights) In Powley, members of the Métis community in and around Sault Ste. Marie were charged with unlawfully hunting moose and knowingly possessing game hunted in
43 Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010.
44 Ibid, at para.138 45 Ibid. 46 Ibid, at para. 143 47 Ibid, at para 148
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 51 . contravention of the Game and Fish Act, R.S.O. 1990, c. G-1. The defendants admitted to shooting and possessing the game, however, they argued that the sections of the Game and Fish Act, which prohibit hunting moose without a license, unconstitutionally infringed their aboriginal right to hunt for food, as recognized in s. 35(1) of the Constitute Act, 1982. In finding on behalf of the defendants, the Supreme Court said that the appropriate way to define Métis rights in s. 35 is to modify the test used to define the Aboriginal rights of Indians (the Van der Peet test).
The Powley test is set out in the following ten parts:
1) Characterization of the right.
2) Identification of the historic rights bearing community – An historic Métis community was a group of Métis with a distinctive collective identity, who lived together in the same geographic area and shared a common way of life.
3) Identification of the contemporary rights bearing community – First the community must self- identify as a Métis community. Second, there must be proof that the contemporary Métis community is a continuation of the historic Métis community.
4) Verification of membership in the contemporary Métis community – There must be an “objectively verifiable process” to identify members of the community. This means a process that is based on reasonable principles and historical fact that can be documented.
5) Identification of the relevant time – The Court called the appropriate time test for Métis the “post contact but pre-control” test and said that the focus should be on the period after a particular Métis community arose and before it came under the effective control and influence of European laws and customs.
6) Was the practice integral to the claimant’s distinctive culture – Court asks whether the practice is an important aspect of Métis life and a defining feature of their special relationship to the land.
7) Continuity between the historic practice and the contemporary right – There must be some evidence to support the claim that the contemporary practice is in continuity with the historic practice.
8) Extinguishment – The doctrine of extinguishment applies equally to Métis and First Nation claims.
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 52 .
9) Infringement – No rights are absolute and this is as true for Métis rights as for any other rights.
10) Justification – Conservation, health and safety are all reasons that government can use to justify infringing an Aboriginal right. But they have to prove that there is a real threat.
Haida Nation v. B.C. and Mikisew (clarifying duty to consult) In Haida,48 the Haida Nation claimed that the province had failed to meaningfully consult their nation before beginning forestry activities on lands to which the Nation claimed Aboriginal title. While title had not been recognized by law, the Nation still launched a suit against the province. The court ruled that there was a duty to consult and accommodate concerning all government (federal and provincial) interactions with First Nations, which is derived from the Honour of the Crown. This duty exists, the court found, whether or not title has been proven or asserted.49 Within its decision, the judiciary held that there are different levels of a duty regarding consultation. Where the claim to aboriginal title is weak and a threat to aboriginal interests is not great, the duty is light. Alternatively, where the claim to title is strong and the potential impact to aboriginal interests is severe, there is a heavy obligation.50 Furthermore, the court held that procedural aspects of the duty can be delegated to private parties, such as resource extraction companies.51 The court found that the Haida Nation’s claim to title, while not proven, was strong and therefore the Crown had a heavy obligation regarding their duty to consult the nation. In Mikisew52 the court held that duty to consult can arise from a treaty right.
Platinex (providing support for capacity) In Platinex v. Kitchenumaykoosib Inninuwug, the Court recognized that funding is essential to create a level playing field between First Nations, industry and governments with respect to consultation. Platinex, a junior mining company operating in Northern Ontario, planned exploration activities within the traditional territory of the Kitchenumaykoosib Inninuwug First Nation. After failing to consult the KI First Nation, Platinex was ordered to negotiate with them. However, the parties were unable to reach an agreement and returned to the Court in April 2007, and again in May.
48 Haida Nation v. British Columbia (Minister of Forests) [2004] 3 S.C.R. 511 49 Ibid, at para. 27 50 Ibid, at para. 35 51 Ibid, at para. 53 52 Mikisew Cree First Nation v. Canada (Minister of Heritage) [2005] 3 S.C.R. 388
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 53 .
In this case, the Court has demonstrated a notable preference for negotiation over litigation, and further, made specific reference to appropriate funding to support fair and balanced negotiation. As a result of this decision, it is becoming common practice for industry to provide funding for capacity building and expertise in jurisdictions like BC, NL (where this is expressly included in the new consultation document), and other jurisdictions have considered making it the norm.
REVISITING RCAP Towards Reconciliation: The Future of Indigenous Governance 54 .
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REVISITING . RCAP Towards Reconciliation: The Future of Indigenous Governance
Discussion Paper October 2014
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