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Doğan Akman


The Indigenous reconciliation process: What kind of recognition does it require?

Saturday, 29 July 2017


Jody Wilson-Raybould Minister of Justice and Attorney General of Canada, in  the Opinion she published in the Globe and Mail of July 19 inst. asserts that “many aspects of formal relations between the Indigenous peoples and the Crown remain based on denial” and that “reconciliation requires recognition.”


As general propositions go, such an assertion is certainly worthy of consideration and debate. However, some of the examples she gives to illustrate the alleged denial, where she demands recognition are deeply troubling, coming as they do from a person occupying her positions. I propose to address two of them.


First example. The Minister writes: “Indigenous peoples have to prove their aboriginal and treaty rights in court, even though they are recognised by Section 35 of Canada’s Constitution”, [and] “this costs all of us hundreds of millions of dollars and takes years.” To top it all, she argues that “For government to simply say to Indigenous peoples ‘let’s reconcile’ while demanding that rights are only relevant if proven in court, or may be recognized at the end of the protracted negotiation, is not a true starting point for reconciliation and impedes progress”.


The Minister’s proposition that the mere assertion of ownership of a particular treaty or aboriginal right  by an indigenous person or collectivity ought to be recognized as an existing right without further ado simply  because Section 35 recognizes and affirms existing aboriginal and treaty rights  demonstrates a profound ignorance of the most elementary principles of law.


It also demonstrates, first, a profound ignorance of the legal duty of the Provincial or  the Federal Attorney- General, as the case may be, and in some instances both, to study the alleged right and decide whether or not it ought to be contested in part or in whole, and second, a profound contempt of the rights of  not only non-indigenous persons and communities but also of other indigenous persons  and communities adversely affected by the alleged right to contest its existence  and contents  in part or in whole.


The second example is the Minister’s assertion that, “most federal laws and policies, especially around land and resource decision- making, do not properly consider indigenous rights.”


This allegation in turn shows the Minister’s profound ignorance of the decisions of the Supreme Court of Canada that have rendered the management and exploitation of resources on lands with respect to which Indigenous groups enjoy aboriginal or treaty rights so complicated as to turn the task, in an ever increasing number of cases, akin to trying to squeeze an elephant through the eye of a needle. If the Court was making these decisions when the Canadian Pacific Railway system was being built, the chances are that it might not have been built or built at a cost overrun in the millions of 1880 dollars; not to mention the never ending saga of attempts to build national or regional pipelines.


The Minister’s assertion that most federal laws and policies fail to consider Indigenous rights suffers from over-generalisation. It ignores the fact that in the ordinary course of business, where the rights or the interests of Indigenous people are involved , as a matter of standard procedure, the interpretation and application of these laws and policies is subjected to scrutiny in the light of the court decisions concerning the rights of the Indigenous peoples. Where doubt exists, the usual course of action is to seek a legal opinion from the Minister’s department and where possible, to consult with the people who might be potentially affected prior to reaching the ultimate decision.


The Minister’s explanation for her alleged state of affairs is that “Underlying all of this is paternalistic colonial legislation such as the Indian Act that continues to govern the day-to-day lives of many Indigenous people and communities.”


If nothing else, this facile, simplistic, stereotypical explanation of the kind advanced by some of advocates of Aboriginal peoples and rights, demonstrates the Minister’s lack of familiarity with the history of the Indian Act, and in particular the vehement opposition of the First Nations to the scheme under which the Trudeau Sr. government offered to repeal it.


Based on the foregoing considerations, clearly the Minister is in conflict of interest. She must choose and choose promptly, whether she wants to be an advocate for the Indigenous peoples’, come what may be to the proper performance of her official duties or to perform her official duties in a manner becoming a Minister of Justice and Attorney General of Canada.


Doğan D. Akman


 


310 Clemow Avenue,                                                                                               Ottawa, ON K1S 2B8                                                                                               Tel.613.230.3881                                                                                            e-mail: Dogan.Akman@rogers.com


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Between 1985 and 2005 when I retired, I was employed as counsel in the Civil Litigation Branch of the Department of Justice in Ottawa, where I specialised in the litigation of major aboriginal law cases. In 1987,I was promoted to Senior Counsel and became  the Departmental Co-Ordinator of Native Litigation until 2000.


 


DDA

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