The Prime Minister and the aboriginal peoples: Is he on track to deliver on his promises for reconciliation?

Saturday, 21 October 2017

I. The Past and the Future

Blaine Favel and Ken S. Coates of the MacDonald-Laurier Institute, in Understanding UNDRIP (United Nations Declaration of the Rights of Indigenous Peoples), point out that “Successive Canadian governments have made substantial financial, legal and political commitments to Indigenous peoples…Canadian governments have [also] searched for the policy masterstroke to transform Indigenous lives and provide a better quality of life for Indigenous peoples for the last 150 years. Some of these have been disastrous.” www.macdonaldlaurier.ca/.../MLI-10-UNDRIPCoates-Favel05-16-WebReadyV4.pdf with the text of UNDRIP in Annex, May 2016

The authors identify “the Indian Act, the reserve system, residential schools and efforts to erase Indigenous cultures as those producing tragic consequences.”

Personally, I beg to differ on some of these. But for the reserve system, sooner or later, the Indians would have dispersed, become another racial and cultural minority group and in the process, more likely than not, lose their identity and culture.

In so far as the residential schools are concerned, contrary to some reliable evidence, the project has been adjudged to have been a total inter-generational traumatising failure.

Nevertheless, I suggest that the original idea was certainly one worth pursuing, namely; to provide the Indians with the opportunity to acquire an education that would have enabled them to function in the new realities that confronted them; earn their livelihood and become independent instead of  being treated as  and remaining wards of the State.   

                                        

Then again, in those days, I do not think the prime and proper society suspected that some of the clergy who ran or taught these schools would turn out to be sexual perverts and that both the clergy and the nuns would resort various forms of physical, emotional and mental abuse or would tolerate student- on-student abuse which accounts for 32 % of the cases where victims applied for compensation based on this abuse.

I wonder whether with the benefit of hindsight,  the  Indians  whose present –day lives of  never ending trials , tribulations and poverty subjected to  the racism, prejudice, discrimination  and exclusion , wish that their forebears had acquired  such an education and lead productive  and independent lives free of racism, prejudice and exclusion.

And I truly believe that aboriginal cultures, customs and practices, would have had a better chance to survive and flourish; albeit with some adjustments to the changed circumstances and environment.

The question

Given the abysmal track record of governments in general, and of the Canadian government in particular in social engineering, the reconciliation project raises the question as to whether  it will succeed or turn out to be yet another masterstroke that will end up as yet another expensive tragedy?

II. The Government’s guiding authority of the reconciliation process

In 2017, the Government of Canada published a document titled “Principles respecting the Government of Canada’s relationship with Indigenous peoples” (PGRIP).

1. The term “principle” defined

The term “principle” has a number of meanings. In the present context, among a number of definitions, I choose to describe it as the “fountain head” or “the foundation” (The Shorter Oxford Dictionary 3^rd ed. 1973) of the government’s reconciliation program.

This definition is adopted in PGRIP which in the introductory statement to the document states:

“These principles are a starting point to support efforts to end the denial of Indigenous rights that led to the disempowerment and assimilationist policies and practices. They seek to turn the page in an often troubled relationship by advancing fundamental change whereby Indigenous peoples increasingly live in strong and healthy communities with thriving cultures. To achieve this change,, it is recognized that Indigenous nations are self-determining, self-governing, increasingly self-sufficient, and rightfully aspire to no longer be marginalised, regulated and administered under the Indian Act and similar instruments….As part of this rebuilding, the diverse needs and experiences of Indigenous women and girls must be considered as part of this work, to ensure a future where non-discrimination, equality and justice are achieved. The rights of Indigenous peoples, wherever they live, shall be upheld.” (Italics mine)

I am at a loss to understand, the statement focuses on women and girls and omits the problems by men and boys.

Surely, these communities must espouse, to borrow from PGRIP’s phrasing quoted below, the rule of law, democracy, equality, non-discrimination, and respect for human rights

Yet, the statement does not address the critical issue of the empowerment of aboriginal persons, which I consider to be a fundamental pre-requisite for the effective development and functioning of self-governing aboriginal communities. I will return to this issue.

Finally, I suggest that the government is unlikely to be able to live up to its commitment to “uphold the rights of the aboriginal peoples, wherever they live”, which rights, I presume, include the social rights enjoyed by all Canadians, including the aboriginal ones, in devastated remote communities such Pikangikum, regardless of the amounts of money invested in such communities, short of relocating them to places that have access to the resources that are needed to rehabilitate them.

2. The government’s definition of “reconciliation”

The narrative pertaining to Principle 2, describes reconciliation as follows:

“Reconciliation is an ongoing process through which Indigenous peoples and the Crown work cooperatively to establish and maintain a mutually respectful framework for living together, with a view to fostering strong, healthy and sustainable Indigenous nations within a strong Canada.

…reconciliation requires recognition of rights and that we [presumably the non-indigenous society], all acknowledge the wrongs of the past, know our history, and work together to implement Indigenous rights….Reconciliation [is] based on recognition.

...This transformative process involves reconciling the pre-existence of Indigenous peoples and their rights and the assertion of sovereignty of the Crown, including inherent rights, title and jurisdiction.”

I believe that PGRIP read as a whole, also suggests the following definition of the term that has been used in Australia:

“…in its broadest sense “'reconciliation' [is] as 'coming together'. In Australia, 'reconciliation' refers to bringing together Aboriginal people the Torres Strait Islanders and other Australians. ...Reconciliation has elements of truth, justice, forgiveness, healing, reparation, and love.”

3. The meaning of reconciliation for the Indian, Métis and Inuit peoples

To the best of my knowledge, to date, none of them and of the organisations that speak on their behalf

a) commented in some detail on PGRIP;

b) published their definitions and understanding of the meaning of “reconciliation, and more specifically, what they require in order to conclude it successfully.

Nor did they publish a statement of Principles that will guide their respective approach to reconciliation.

4. The Principles

The document sets out 10 Principles each accompanied by a narrative.

The Principles are:

“The Government of Canada recognizes that:

1. All relations with Indigenous peoples need to be based on the recognition and implementation of their right to self-determination, including the inherent right of self-government.

2. Reconciliation is a fundamental purpose of section 35 of the Constitution Act, 1982.

3. The honour of the Crown guides the conduct of the Crown in all of its dealings with the Indigenous peoples.

4. Indigenous self-government is part of Canada’s evolving system of cooperative federalism and distinct orders of government.

5. Treaties, agreements, and other constructive arrangements between Indigenous peoples and the Crown have been and are intended to be acts of reconciliation based on mutual recognition and respect.

6. Meaningful engagement with Indigenous peoples aims to secure their free, prior and informed consent when Canada proposes to take actions which impact them and their rights on their lands, territories, and resources.

7. Respecting and implementing rights is essential and that any infringement of section 35 rights must by law meet a high threshold of justification which includes Indigenous perspectives and satisfies the Crown’s fiduciary obligations.

8. Reconciliation and self-government require a renewed fiscal relationship, developed in collaboration with Indigenous nations, which promotes a mutually supportive climate for economic partnership and resource development.

9. Reconciliation is an ongoing process that occurs in the context of evolving Indigenous-Crown relationships.

10. A distinctions-based approach is needed to ensure that the unique rights, interests and circumstances of the First Nations, the Métis Nation and Inuit are acknowledged,   affirmed, and implemented.”

I cannot help but wonder whether the number of principles was chosen to evoke the solemnity and compelling powers of the 10 Commandments.

5. What are the 10 Principles about?

First, the Principles 2, 3 and 7 merely re-state the law of the land, which the government is already duty-bound to abide by and therefore are redundant.

Second, Principles 8, 9 and 10 are self-evident propositions.

Third,

a) Principles 1 and 6 are juridical statements that are ex-facie problematic.

b) Principle 5 is a revisionist interpretation of the meaning and objects of historical treaties and more particularly the vast majority of the numbered treaties,

c) the narratives that accompany each Principle remind me of the expression, “the devil is in the details”.

Last, but not least, the PGRIP lacks a modicum of legal prudence.                 It omits the standard precautionary provisions 6.5 to 6.8 inclusive, of the Framework Agreement for Reconciliation dated January 28, 2017 executed by the Heiltsuk Nation and Her Majesty the Queen in Right of Canada.

These provisions edited in the context of PGRIP, would read as follows:

1. The reconciliation process and any action plans that flow from it will be consistent with the Constitution of Canada and section 35 in particular.

2. PGRIP does not create, affirm, deny or amend any legally enforceable rights.

3. The proceedings held and the negotiations conducted in pursuit of the reconciliation process and all related documents including PGRIP, are:

a) without prejudice to the positions of the parties in any proceedings before the court or in any other forum and shall not be construed as admissions of fact, law or liability, nor trigger Principle 3, and

b) confidential, save for:  the documents with respect to which the parties agree otherwise in writing; interim and final agreements, Memoranda of Understanding, other legal instruments, and those whose disclosure can be obtained by law; all of which documents must be published forthwith on the website of the Department(s) involved.

III. Negotiating the Reconciliation

1. The federal government

In practical terms, the reconciliation process is a process of negotiation and compromise a proposition which is in line with PGRIP’s narrative.

Further, the fifth paragraph of the introductory statement of PGRIP further states that

“This review of laws and policies will be guided by Principles respecting the Government of Canada’s Relationship with Indigenous peoples…These Principles are rooted in section 35, guided by the UN Declaration, and informed by the Report of the Royal Commission on Aboriginal Peoples (RCAP) and the Truth and Reconciliation Commission (TRC)’s Calls to Action…”  In addition, they reflect a commitment to good faith, the rule of law, democracy, equality, non-discrimination, and respect for human rights. They will guide the work required to fulfil the Government’s commitment to renewed nation-to-nation, government-to-government, and Inuit-Crown relationships.” (Italics mine)

Under Principle 2, this undertaking is supplemented by the following narrative, which is not quite consistent with the preceding one:

“The government of Canada’s approach to reconciliation is guided by the UN Declaration, TRC’s Call to Action, [unspecified] constitutional values, and in collaboration with Indigenous peoples as well as provincial and territorial governments.”(Brackets mine)

Quere: And how about first foremost being guided by the judgments of the courts and particularly those of the Supreme Court?

One of the peculiar features of PGRIP is the absence of any mention of the critical role played by the judiciary in the process of reconciliation, and deference to the judgments of the Supreme Court.

2. The negotiation strategy of the aboriginal peoples

Favel and Coates point out that: “It is clear... the funding currently available is not sufficient to meet the myriad challenges facing the Aboriginal communities across the country… It would help substantially; if Indigenous leaders would indicate those areas of UNDRIP where they believe current Canadian practices are, in terms of international minimum standards, at or above the expectations articulated in the Declaration.”

Helpful it may be. Aboriginal leaders unlike the government are too careful to make such any admission or concessions at this point in time or, for that matter, I venture to say they are unlikely to make them, at any time during the reconciliation process: they are too astute to do this kind of thing. They are also very tenacious; they rarely give up as illustrated by the case of the Mohawks of Akwesasne.

The case of the Mohawks of Akwesasne

Since, the early 1950s, the Canadian Mohawks situated on the Akwesasne reserve near Cornwall, situated on lands that straddle the boundaries of Quebec and Ontario as well as that of Canada and United, claimed exemption from customs duties and taxes with respect to the goods brought from the United States into Canada, pursuant to Article III of the Jay Treaty of 1794. made by the British Crown and the United States.

In 1956, the Supreme Court in Francis v. The Queen dismissed the claim. But this did not, by any means, put the matter to an end. 

In 1991, the band succeeded in obtaining from the Minister of National Revenue, the Akwesasne Residents Remission Order which provides that, with some exceptions, duties are not payable on goods imported to Canada by a resident of the Canadian segment of the reserve for personal use and for sale by the owner of a community store to the residents of the Band, or for use by the Mohawk Council of Akwesasne in connection with educational, hospital or social services.

That was still not enough. Around 1995, Grand Chief Mitchell of Akwesasne   tested the law in Court again by claiming an exemption from duties and taxes for  U.S. goods imported into Canada from the United States for trading based on Mohawks’ aboriginal right to do so.

He succeeded in the Federal Court both at the trial and on appeal. The claim was dismissed by the Supreme Court for lack of evidence to meet the evidentiary test to establish the existence of the alleged aboriginal right to do so. M.N.R v. Mitchell (2001)

Besides the Mitchell case, there have been prosecutions, involving members of other aboriginal bands, including a member of the Hurons of L’ Ancienne Lorette (Quebec), who relied not only the Jay Treaty but also on the Treaty of Ghent 1814 as well as on a safe conduct issued in 1760 by a British general to a group of these Hurons, which the Supreme Court judged to be a treaty. R. v. Sioui (1990). All to no avail.

In 2016, the matter of border-crossing was the subject of a meeting of the Standing Senate Committee on Aboriginal Peoples. The Committee focused on the free cross-border movement by reasons of cross-border cultural and family ties on Akwesasne reserve as well as in the case of other Indian bands located near the U.S border which also share such ties. 

In June 2016, the Committee issued a report titled Border Crossing Issues and the Jay Treaty.

Personally, I cannot fathom why the Committee  would still dwell on the Jay Treaty because under the international law of treaties ,Article III is not a “stipulation pour autrui” (stipulation specifically  made for the benefit of one or more third parties, such as the Indians of Canada.

Based on the findings and recommendations of the Committee, in December 2016, the Minister of Indigenous Affairs appointed a special Ministerial Representative and mandated him to engage with the Indian Bands in border communities and with aboriginal organisation, to explore their views concerning Canada-U.S. border-crossing challenges and potential solutions.

The Assembly of First Nations (AFN) appointed former Grand Chief Mitchell to be its Special Representative mandated to engage with the Canadian and American governments to explore one possible solution to the problem.

Finally, at the beginning of September 2017, it become known that the Canadian delegation to the NAFTA negotiations, had put, among others, Indigenous rights on the list of items to be negotiated

In response to the criticism of this initiative, AFN’s National Chief, Perry Bellegarde opined that

 “Indigenous rights should be a cornerstone of economic development in all three countries, as recognised by the United Nations Declaration on the Rights of Indigenous Peoples.”

3. To sum–up

As matters now stand, the process of reconciliation will proceed without a clear meeting of the minds on an agreed upon specific sets of long- term common goals and objectives with a common plan and strategies to reach these goal.

In the meantime, it is reasonable to expect that the aboriginal leaders will hold the present and the following governments to the admissions, concessions and commitments made in PGRIP and keep their feet to the fire to hold them to the word. So they should.

And I believe that it will not be that long before the Indian peoples will be on solid ground to accuse the government of breaches of promise, and of the honour of the Crown for failing to live up to the Principles. So should they.

In this regard, a number of prominent Indian spokespersons have already accused the Prime Minister of talking the talk but taking his sweet time to start walking the walk to address long outstanding matters let alone to do those things that are important to them, beyond providing fixing the problem of polluted drinking water, so far, in about two dozen communities.

IV. Selected problems with the government’s approach to reconciliation

First problem: The absence of a national plan of action and strategies- “Haste makes waste”

The Prime Minister committed himself to implement all of the recommendations of TRC.

One of these recommendations read:

 ”…the federal government “develop a national action plan, strategies, and other concrete, measures to achieve the goals of UNDRIP” [to which I would add those in PGRIP]

Yet, the government made the foregoing commitment without acting on it by

 a)i) developing with respect to each of the three aboriginal groups, say, a 10 year  action plan; a transparent detailed national action plan, strategies and other concrete measures (“plans”) of what it proposes to  do; how it proposes to do it and when it proposes to do it ;

ii)  sharing the plans with the representatives of the appropriate aboriginal people on a national and/or regional basis, depending on the circumstances;

b) asking each of the three peoples’ representatives

i) to consult their respective communal constituencies;

ii) to prepare their respective   transparent and detailed “plans” for the corresponding period or a reasonably shorter one, say for 7 years;

iii) to state what they minimally require and expect the federal and provincial governments involved in the reconciliation process to accomplish in furtherance of their own plans over the period, and what  each of the aboriginal peoples are prepared to do in furtherance of both sets of plans; and

iv) to submit their plans and statements to the federal government upon receiving the approval of their respective constituencies and share them with the appropriate provincial and territorial governments;

c) asking the provincial and territorial governments to prepare and submit their respective plans and then follow the same process as that outlined with respect to the federal government, and

d) i) reviewing the three sets of plans with the appropriate aboriginal people and provincial and territorial governments involved, and

ii) reconciling and integrating each set of plans into an overall plan, to the extent it is possible to do so.

Second problem: Absence of actual and projected expenditure number- transparency and public accountability

As pointed out by Favel and Coates, in order to do that which the government promises to do for the aboriginal peoples, it is important for the peoples and for the federal, provincial and territorial governments, to have onside the non- aboriginal Canadians and the taxpayers.

This is particularly so, when, as is the case here, the federal, provincial and territorial governments lack the financial heft to give effect to the implementation of the spirit of and of all the concrete initiatives they will or may be called  upon  to undertake and complete under the reconciliation process.

 And in the case of the federal government, the commitments include to give effect the provisions of PGRIP and UNDRIP; all of the recommendations in TRC and some of the recommendations made by the Royal Commission on Aboriginal Peoples (RCAP).

At all events, the governments owe the Canadians the duty of being forthcoming and providing transparency both about the process and the public expenditures associated with it.

In this regard,  limiting myself to  the federal government that has the lead role in the reconciliation process; it must inform, Canadians, in ordinary plain English, the maximum amount of monies, the government   can and intends to spend, say, within the first 10  years of the reconciliation process,

a) specifically for the implementation PGRIP, UNDRIP, and the 94 recommendations of TRC, and

b) to finance the existing and future programs and services that will be rendered to the aboriginal peoples under and beyond the Indian Act by all government departments and their respective emanations.

Further, the government must also publish a handbook every two or three years which will provide cumulative comparative tables and narratives, in plain English spoken by Canadians, and in the most accessible manner to the general public, that identifies

a) the specific reconciliation related issues and problems

i)  that have been resolved; and

ii) those currently being addressed;

b) the costs associated with each reconciliation related issue, problem and project, and

c) the issues and problems with respect to which no or negligible progress has been made; the reasons therefor and the costs incurred to date with respect to each.

Third problem: The Knowledge Gap –“Ignorant zeal is foolish”  

1. Indiscriminate use of legal concepts 

The narrative on Principle 4, inter-alia, reads:

“Recognition  of the inherent jurisdiction and legal orders of Indigenous Nations is therefore the starting point of discussions aimed at interactions between federal, provincial, territorial ,and Indigenous jurisdictions and law. (Italics mine)    

 Quere: Precisely, what do the phrases inherent Indigenous jurisdictions and law and legal orders specifically refer to? What are the contents and contours of the jurisdictions, law and legal orders whose existence is being admitted? Are these related to the treaties or part of the existing aboriginal rights or those whose the existence the government has admitted or is prepared to do so? Are these terms and phrases another way of referring to traditions, customs and practices? If so, what exactly are these? If not, what are the factual underpinnings of these legal concepts?

And further,

“As informed by the UN Declaration [UNDRIP]  Indigenous peoples have a unique connection to and constitutionally protected interest in their lands, including, decision making, governance, jurisdiction, legal traditions and fiscal relations associated with those lands.” (Italics mine)

Quere: Precisely what is the nature of this connection? What are the facts that make the connection unique? Are the lands in issue, reserve lands; traditional lands for hunting, fishing, gathering and farming activities, or lands claimed to have unextinguished title? What are the legal traditions in question?  In the present context, what are the specific meanings of the term law and the phrases, legal order and legal traditions? Specifically, what kinds of decision- making and governance are involved? What is the jurisdiction, and more specifically, what are the aboriginal legal traditions and fiscal relations associated with the lands in question?

Finally, having regard to the use of the word "including”, specifically what else is constitutionally protected? What are the factual underpinnings of these concepts? Which of these is existing treaty or aboriginal rights?

I would have thought that, the better part of discretion for the government would have been

First, not to refer to or to concede specific rights which the Supreme Court has not addressed to date.

Second, not to refer to legal concepts without providing the specific meanings attributed to each of them, or for that matter, I very much suspect, without knowing the factual underpinnings of these concepts from an aboriginal perspective.

Third, not to invoke these concepts until their factual underpinnings from an aboriginal perspective become a material issue that would need to be addressed in the course of the reconciliation process, cases which would call for expert evidence in ethnology, ethno-history and possibly history.

In the event the rights or some of the rights in issue are aboriginal rights, prudence would have also suggested that the text ought to have referred to the test which must be met in order to prove the existence of an aboriginal right, formulated by the Supreme Court in R. v Van der Peet (1996).

“The test to establish an aboriginal right focuses on the integral, defining features of the relevant aboriginal society before the Crown’s assertion of sovereignty.   A claimant must prove that a modern practice, custom or tradition has a reasonable degree of continuity with a practice, tradition or custom that was in existence prior to contact with the Europeans.   The practice, tradition or custom must have been integral to the distinctive culture of the aboriginal people in the sense that it distinguished or characterized their traditional culture and lay at the core of the aboriginal people’s identity.”

Then again judging from the narratives in PGRIP, the Attorney -General does not seem to care very much, if at all, about juridical niceties, evidentiary imperatives or for that matter about prudence and discretion in framing juridical propositions or using legal concepts.

2. Five questions

The foregoing statements raise the following five critical questions:

First, does the government really thought about and know

a) the answers to the preceding sets of questions, and

b) the full implications of adopting these concepts, under section 35?

Second, does the government know the aboriginal perspectives and factual underpinnings of this terminology?

Third, limiting myself to the second question, if the government believes to have the requisite knowledge, where does this knowledge originate from, and how reliable is it?

Fourth, has this knowledge been critically reviewed and assessed independently, for the government?

I suggest that the last three questions need to be addressed sooner rather later for the following practical reasons:

First, having conceded the material relevance of these concepts   to the reconciliation process, it is reasonable to expect that, in due course, one or more aboriginal groups and more particularly, Indians will in due course come up with some expert reports and will rely upon them in arguing their claims under the reconciliation process or in court.

Second, based on my personal experience and observations in aboriginal litigation, the chances are that these reports will be, not to put too fine a point on it, most sympathetic to the case their clients seeking to make. 

And, in the event of litigation, the trial judge may turn out to be “overly generous” in his assessment and interpretation of the aboriginal plaintiffs’ expert evidence; endowed with.” a vague sense of after-the fact largesse”, or one who simply “strains the evidence artificially to carry more weight than it can reasonably support” (Mitchell, para. 39) as was, for example, the trial judge in the Mitchell case (para 39). His decision was upheld by the Federal Court of Appeal.

In such circumstances, only a successful final appeal to the Supreme Court, on the ground that the trial judge committed a “palpable and overriding error” in his interpretation and assessment of the plaintiffs’ evidence, not any easy task by any means, particularly in cases concerning aboriginal and treaty rights, would straighten out the historical record. 

The reasons for the experts’ sympathetic attitude towards aboriginal peoples and approach to their claims save where the expert believes in the rightness of the plaintiffs’ claims for ideological reasons are of practical nature.

Experts do not seem to be particularly good at cross-examining their aboriginal informants to test the validity and reliability of the information they provide, as evidenced in, if I remember correctly, in a couple of cases which I litigated, where the informants or other members of the band, upon being called to the witness stand, honest as they are, under cross- examination soon proceed to contradict their experts’ report or otherwise make damning admissions.

If the aboriginal plaintiff’s expert comes up with a report that does not fully support the aboriginal client’s claims or concedes in his report or during his testimony the validity of some of the assertions made by the Crown or set out in the expert reports on which the Crown relies, that expert, particularly if he depends on field work to conduct his research, is in trouble.

Those who depend on field work are unlikely to be permitted to enter aboriginal communities again. In the absence of field work and the consequent inability to publish papers on such work in the learned journals, the academic career of the expert, most likely an ethnologist or ethno-historian or archaeologist will be blocked.

And, if the expert happens to have a junior faculty position, it may well go down the chute, unless the expert can re-direct his or her work to matters that do not require fieldwork.

In the alternative, the expert who does not do field work for his academic endeavours, will simply lose his aboriginal clientele.

Third, finding experts willing to work for the Crown side is easier said than done, because an expert who works for the government’s case can never be trusted by aboriginal parties. And again, the decision to work for the Crown might well turn out to be something akin to professional suicide.

In my experience, I never encountered or heard about a case where experts declined to work for the Crown on the grounds that the Crown’s case is weak or devoid of merit. In my personal experience the refusal were based on their wish not to be identified with a party adverse to the interests of aboriginal parties that is when they bothered to return the call, reply to the letter.

Clearly, the foregoing statements are not absolute and I am sure there are out there exceptions; exceptions which I fear confirm the validity of the foregoing general propositions.

At all events, for the Crown, finding and retaining competent, unbiased independent-minded experts, is close to looking for a needle in a haystack.

As it happened, I did manage to find and retain first rate expertise for my cases.

If the reader is thinking that I am being utterly cynical and unfair, that would be a rash and unwarranted conclusion because

a) I first heard about the foregoing fears and apprehensions from would be experts;

b) when I joined the Department of Justice a prosecutor and subsequently switched to litigation, the first principle of practice I was taught, and I trust it is still being taught, is that winning or losing is not the important thing. What is important is to be fair to and respectful of the plaintiffs or defendants, and to identify, present and argue the issues raised by the case in a competent manner.

Hence, my colleagues and I did not go to court to defend the Crown against claims that are well-founded in fact and in law or to advance questionable arguments.

That is not to say that our judgment was infallible. Errare humanum est.

It failed particularly in the litigation of aboriginal and treaty rights under section 35, when the Supreme Court preceded full speed to make and keep making new law; fully intent to give the word “recognised” the broadest possible meaning concerning the nature, contents and interpretation of aboriginal and treaty rights. 

Thus, gone were the days when, among other things,

a) the Court would look at treaties as mere contracts where extrinsic evidence is admissible only where the wording of the treaty is ambiguous;

b) an argument based doctrine of “extinguishment” was respectable, and

c) the aboriginal perspectives on the meaning and interpretation of treaties were ignored.

After the enactment  of section  35, here are the days when  the Supreme Court started to  set  and keeps setting new rules that, for example;

a) give proper weight to extrinsic evidence concerning the aboriginal perspectives and intentions in treaty- making;

i) in determining whether or not a document is a treaty;

ii) in the interpretation of treaties;

b) hold Indian treaties to be sui generis in order to avoid a situation where aboriginal intentions, understanding and interpretation of a treaty differ from the text of the treaty as well as from the intentions, understanding and interpretation of the Treaty Commissioners; a situation which would normally lead to the conclusion that the parties had not been ad idem and therefore the treaty is void ab initio;

c) resolve ambiguities through the blanket rule that where ambiguities raise doubt as to the meaning of the written or spoken word(s) or the intention of the party writing the text, the doubt must be resolved in favour of Indians.

Finally, it made and makes no difference to me personally whether the Crown wins or loses an aboriginal case, so long as the case is handled competently and the Court conducts a fair trial and issues a judgment supported by the evidence and the law.

As a matter of fact, deep down, as a member of at least three minorities, I hoped and still hope that the aboriginal plaintiffs would prevail in those cases where a win would do much a great deal of good for the aboriginal peoples,  particularly when the good would not cause unwarranted hardship  for others.

And, if any person or group of persons  in this country deserve to have their good days in Court, it certainly got to be the aboriginal peoples that have been treated  harshly and miserably  for a  very long time and still are in many respects.

At all events, I submit, that at this stage of the reconciliation process, it is critically important for the government to

a) search for identify and retain without delay, the services of the kind of experts I described above;

b) not to even think of making them civil servants or to require them to work away from their natural habitats, and

c)  to make sure to benefit from their advice throughout the reconciliation process.

3. What are the experts up to these days in the matter of reconciliation?

The Federation of Humanities and Social Sciences,  for whose members the reconciliation process promises to be a lucrative endeavour, has announced  its commitment to contribute to the reconciliation between Aboriginal and non-Aboriginal peoples.

Needless to say, the Federation will focus on the “crucial role” that post –secondary education, the humanities and social sciences will play in the process of research, understanding and action towards reconciliation. Cf. Http://www.Ideas-Idees.ca

The Federation also adopted the Touchstones of Hope Principles and Processes to guide its work on reconciliation.                                                                           Cf. http://www.fncaringsociety.com/what-are-toucstones-hopes

One of these principles is:

”Respecting Aboriginal cultures and languages and acknowledging the academy is heavily influenced by western cultures”

This principle raises a key question, namely; whether in the light of this influence, the Federation takes the position that the large body of ethnological, ethno-historical and historical knowledge concerning Canadian aboriginal peoples published to date or parts thereof, need to be revisited and revised for the successful conclusion of the phase of the reconciliation process which according to the Federation is “truth telling”?

If the answer to this question is in the affirmative, the government ought to get on faster with the hiring of independent experts. 

V. Outstanding matters that require urgent attention

The reconciliation process cannot go far without addressing and resolving a number of issues, the solutions to which are of critical importance for the orderly progress and successful management of the process.

First matter: The absence of a coherent defined scheme of aboriginal identities

1. Who are the Indians the contemplated by PGRIP?

Currently,

1. There are on-going problems and controversies on the issue as to who is entitled to be registered as a Status Indian under the Indian Act between the government and the Indians barred from registration, as a result of the gender-based discriminatory provisions of the legislation; and 

2. The Senate and the House of Commons are at odds with respect to the timing of the repeal of these provisions.

3. The Supreme Court in Daniels v. Canada (IAND) (2016) held, surprise surprise, that non-Status Indians are Indians within section 91(24) of the Constitution.

Based on this decision, the non-Status Indians are bound to demand that they be given the same benefits as Status Indians.

Should the government refuse to do so; the former may be reasonably expected to litigate the issue under the Charter.

As matters now stand, we have at least nine categories of Indians with a number of overlaps. These are:

1. The treaty Indians (the lists of which Indians are not exactly free of problems)

2. Non-treaty Indians

3. Aboriginal Status- Indians

4. Non-aboriginal Status- Indians

5. Non-Status Indians

6. Persons who by reason of being recognised as Indians under the current band membership rules administered by Indian bands pursuant to the provisions of the Indian Act

7. Indians who are members of Self- Governing Indian bands but who still have Indian status.

8. Indians who are members of bands under the Indian Act, and

9. Indians who are not members of any band.

Further, the Prime Minister has spoken of repealing the “colonial" Indian Act without giving any indication as to when and how this will be done, or providing any information about the nature of the legislative scheme(s) that will succeed it.

The fact of the matter is that, realistically, the government cannot repeal the Act, without consulting the groups or the proper combination of the groups of Indians identified above and some others identified below, with a view to reach an overall satisfactory agreement within a fixed deadline that would be reflected in the successor legislation.

Failing such agreement, the government must get on to frame unilaterally the provisions of one or more successor pieces of legislation in order to establish a coherent scheme of Indian identity and an equitable treatment of all the Indians under the reconciliation process.

And at some point in time, the government must also review PGRIP to determine whether some of the Principles and objectives of the reconciliation process will have to be amended.

Therefore, it is high time to address, negotiate and, at all events, resolve, the complex and potentially explosive issue of Indian identity within a legislative framework and in the context of the reconciliation process.

2. Who is a Métis?

As with non-Status Indians, the Supreme Court in the Daniels case, held that the Métis are also Indians within section 91(24).

Having regard to the fact that the section 35(2) recognizes the Métis as one of the three aboriginal peoples of Canada, I wonder what on earth led the government to contest the matter.

In this instance, the issue is: Who is entitled to be recognised as Métis for the purposes of section 91(24) and of the reconciliation process?

According to the last National Household survey, such as it was, 428,380 Canadians self-identified as Métis.

In 2002, the Métis National Council (MNC) adopted the following definition of the Métis identity:

“ ‘Métis’ means a person who self-identifies as Métis, is distinct from other Aboriginal peoples, is of historic  Métis Nation ancestry and who is accepted by the  Métis Nation.”

I suggest that it is not unreasonable to anticipate that as the  government begins to provide  the Métis people collectively with  financial aid of various kinds, some of which may trickle down to the individual level, and in the event the government were to decide to grant  financial and other benefits directly to  members of particular sub-groups of the collective,  the number of persons who  will self-identify as Métis and seek to register themselves   with the MNC in order to become  “citizens of the Métis Nation”, is bound to increase.

In this connection,  the question as to whether the government is prepared to adopt MNC’s definition of Métis as well as the list of those registered by the MNC remains to be seen.

In the light of the government’s decision to deal with the Métis people on a government-to -government basis, it will find it extremely difficult to justify going behind the list of the registered  people  and, most unlikely, to draw and administer its own list.

3. Who is an Inuit?

I am not familiar with the situation of the Inuit .To the extent, the membership in the community raises identity issues, needless to say, these must be  also be resolved.

To sum up  

In terms of priorities, surely the resolution of the definitions of the identity of aboriginal persons is critically important to the proper articulation of a number of schemes and promises set out in PGRIP; the implementation of UNDRIP; and of the recommendations of TRC, and in making use of some of the recommendations of RCAP.

The failure to find and implement the definitive solution(s) to the foregoing identity problems on a timely basis will cause, sooner or later, but inevitably, otherwise avoidable

a) complications -if not some chaos- in the reconciliation process, and

b) waste of scarce financial resources.

Second matter: The empowerment of aboriginal persons-The case of the members of the Indian peoples and bands

1. The problem

In July 2105, prior to the general elections the Prime Minister speaking at a meeting of the Assembly of First Nations (AFN) emphasised his government’s intention to engage with the Aboriginal communities on a nation-to- nation basis.

Since then he repeated a number of times that the government is committed to conduct the reconciliation nation-to-nation or government-to- government and Crown and Inuit.

This promise is now embodied in the narrative under Principle 6 of PGRIP.

At this point, I should say that I am at a loss to understand why the government is dealing with the Indian peoples on a nation- to -nation and the Métis people on  a government- to- government basis, a useless distinction at all events, while the relations of the government with the Inuit people are defined as one between the Crown and the Inuit, a formalistic affectation of some sort that in practical terms does not make much, if any, sense.

This commitment raises the critical question: But, what about the individual rights and privileges of the members of the Indian peoples both as aborigines and citizens of Canada and their right to exercise them freely?

As I stated above, I firmly believe that the personal empowerment of Indians is one of the fundamental pre-conditions to make sound progress in the reconciliation between the government and the Indian peoples, if nothing else, in matters of of self-determination and self-government.

This empowerment will come about by

a) dealing effectively with the problems of

i) physical and mental health;

ii) various types of dependencies and substance abuse;

iii) community and family violence and child abuse;

iv)  inadequate basic community infra-structure;

b) providing

i) the young with a sound education, healthy curricular and extra-curricular recreational activities and instilling in them the ambition to make good in their chosen avocations as well as in their personal lives, and

ii) the adults who are too old to go back for formal schooling, with adult education; vocational or on- the- job training and needless to say, steady employment “real” job.

Last but not least,  empowerment will come about by insuring that the reconciliation process does not crush the individuals’  capacity for  and actual empowerment under the yokes of corporatism and aboriginal collectivism that has been exacerbated by 150 years under Indian Act.

The narrative on Principle 2 demands that we know our “true history”. Surely this history includes that of the aboriginal peoples of Canada and in the present context presents an appropriate opportunity to address briefly the claim that aboriginal traditions, beliefs, customs and practices are predicated on collective decision- making and action.

Aboriginal leaders keep asserting and emphasising the collective nature of their rights and freedoms and the virtues of the present methods of collective decision-making and their primacy over individual rights and freedoms.

In the result, the individual members of the Indian peoples are not allowed or unable to exercise the rights to challenge the existence, validity or applicability of old traditions, beliefs, customs and practices invoked in decision- making in matters decided outside the confines of the decisions made by the Chief and Council of Indian bands under the Indian Act and to a limited extent in the latter case.

 In the result, the rank and file members of the Indian peoples are deprived of the right to participate fully and effectively in the decision- making process in all matters that touch upon their lives and the life of the collective to which they belong.

To prove or illustrate their case, in many instances, the aboriginal leaders point to the way Indian peoples made treaties.

2. The case of treaty-making

Although I know it to be contrary to the pronouncements of the Supreme C that has to insure consistency in its reasoning concerning the manner in which treaties must be understood and interpreted, I submit that   a compelling case can be made and in fact was made in a case decided in the Federal Court, Trial Division, as it was then, back sometime during the last three decades of the preceding century, for the proposition that on a fair reading of the numbered treaties,

a) these were signed on behalf of Indians in their personal capacity and not as collectives under their Chiefs;

b)while some of the provisions of the treaties provide for the collective decision- making as for example, in surrendering reserve lands; most of the treaty rights such as the rights to hunt, fish or engage in other avocations are certainly personal rights;

c) almost all the rights, obligations and duties prescribed in the treaties are of a personal nature, and

d) to the extent, in some instances, the treaties hold the Chiefs responsible for the conduct of the members of the band; this was nothing more than the government’s western way of handling accountability.

Indeed, there is reliable evidence that historically the Indians of the west and north western Indians were individualists. Prior to treaty making, they enjoyed the personal freedom to move from band to band, and par for the course was the implosion or splintering of bands whose Chiefs proved to be unsatisfactory to some or all of their followers, and, the phenomenon of Chiefs without a band.

Indeed, some Indians and the Métis “leading an Indian life style” who had the premonition of the regimentation that would follow the execution of the numbered treaties, did not care for them, and either stayed out of the treaty process altogether, and some of those who stayed, quit their bands after having had a taste of the management of bands after the new Indian Act was implemented.

3. The representativeness of the current Indian aboriginal organisations

On June 12, 2017, the Prime Minister and the National Chief of the Assembly of First Nations and other aboriginal leaders executed a Memorandum of Understanding (MOU) on shared priorities in the context of the permanent bilateral mechanism process announced by the Prime Minister in December 2016.

In the present context, the press release issued by the government on this occasion has two noteworthy passages:

The first reads:

 “THE MOU will help guide the Government of Canada and the Assembly of First Nations as the parties discuss options to advance shared priorities, assess progress towards goals for First Nations, and facilitate the ongoing work of building a true nation to nation relationship between Canada and First Nations.”

 “Today’s event is a milestone for both the Government of Canada and the Assembly of First Nations. In the weeks and months to come, key Cabinet Ministers will have the opportunity to discuss with First Nations leaders how Canada and AFN can work together to advance shared priorities, co-develop policy and promote lasting and meaningful reconciliation for the benefit of First Nations members and all Canadians.” as the parties discuss options to advance shared priorities, co-develop  policy and promote lasting and meaningful reconciliation for the benefit of First Nations members and all Canadians.”

The problem with the first statement is that the AFN is not a nation and does not represent a particular nation, and the assertion of dealing nation to nation, is just glib flattering talk.

Further, the National Chief and the members of the executive committee of the AFN are not elected by the members of the Indian peoples on or off reserve.

The Chief of AFN is selected by the Chiefs of the Indian bands. And, the organisation has been making slow haste in examining three alternative election processes, one of which is based on universal suffrage.

Yet, the second statement provides that some other Indian leaders, will also advise as to how the government and the AFN can work together to advance “shared priorities” without giving any indication who and how these other leaders will be identified.

One cannot make the process of decision-making much more remote than it is now.

Yet again, these statements bring me back to the question: Where are the individual members in all of this?

Power is hard to relinquish and oligarchies are hard to dismantle.

Empowerment in the context of the reconciliation process

I submit that all the leaders of the three aboriginal peoples and of aboriginal organisations involved in the reconciliation process must be required to be elected democratically by universal suffrage and made accountable to their respective constituencies of aboriginal members in the manner set out above.

I  further submit that the federal, provincial and territorial governments, in their dealings with aboriginal peoples in the context of reconciliation or otherwise, must make it their duty and obligation to insure that Indians enjoy  the right to universal suffrage and exercise it

a) in the election of the leaders and executives of all the aboriginal organisations that purport to speak, represent, negotiate and agree on their behalf, and

b) to approve, modify or reject the initiatives, proposals, MOUs, draft and final agreements framed by the governments and aboriginal “leaders” that purport to represent their interests.

After all, members of the Indian peoples and bands have a personal interest and stake in the proper definition, interpretation and application of all the freedoms and rights envisaged in sections 25 and 35, in the context of traditional aboriginal “laws”, beliefs, customs and practices, as well as, in negotiations within and without the context of reconciliation and in their outcomes.

Finally, personal empowerment cannot be achieved without providing those wish to bring forth their cases but lack the financial means and the necessary resources.

They need be provided with these by the Department of Indigenous Affairs’ test case funding program; provincial legal- aid services, with the support of law societies’ in securing experienced counsel knowledgeable in aboriginal issues to take on the cases pro-bono.

I consider the failure to insert personal empowerment of aboriginal persons as one of the Principles in PGRIP to be one of the fundamental shortcomings of the document. Then again, the insertion of this subject would have been a politically incorrect move.

Needless to say, the  foregoing proposals will be met with  angry protests and accusations of acting as “colonials” in interfering with the aboriginal peoples’ right to self-determination including their  inherent right to self-government recognised in PGRIP and a breach of the provisions of UNDRIP, and of course, bad faith.

Interestingly enough, in so far as the provisions of UNDRIP are concerned the position I advance is consistent with Article 46.3 of UNDRIP that reads:

 “Article 46

1…..

2…..                                                                                                                               

3. The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, and respect for human rights, equality, non-discrimination, good governance and good faith.”(Italics mine)    

Be that as it may, the fact remains that aboriginal persons are citizens of Canada and as such they must enjoy the same rights and freedoms as the rest of the Canadians. And to the extent, section 25 stands in their way to challenge traditional aboriginal “laws”, beliefs, customs and practices in decision making, section 25 will need to be amended.

And, unless Quebec takes this opportunity to bring other constitutional “problems, to the table, I am confident that Canadians would urge their respective provincial governments and the federal one to vote for the amendment, after consulting the aboriginal peoples.

And that consultation will inevitably open a can of worms in the light of Principle 1 and the narratives related to it. A subject to which I will return.

Fourth issue: The representation and participation of urban Indians; Indians who are not band members; non-treaty and non-Status Indians, in the reconciliation process and in the affairs of their respective ethnic people

These groups are understandably and quite legitimately concerned with and apprehensive about the reconciliation process envisaged by PGRI guided by UNDRIP, and informed by TRC in terms of its implications, and potential negative impacts on them.

These concerns and apprehensions are heightened by the government’s undertaking to deal with aboriginal peoples on a nation- to- nation or government –to- government basis and the fact that  their participation, the nature and scope  of it  has yet to be addressed and determined.

In fairness to this segment of the aboriginal peoples, this issue must to be addressed without further delay.

VI. The Problematic Principles: 1, 2, 4 and 5

Principles 1: Self-determination and self-government

1.Imprudent affirmations  and admissions

Principle 1 reads:

“The Government of Canada recognizes that all the relations with Indigenous peoples need to be based on the recognition and implementation of their right to self-determination, including the inherent right of self –government.” (Italics mine).

 The narrative under Principle 4 that addresses the aboriginal self-government in the context of federalism and distinct orders of government states:

“This principle affirms the inherent right of self -government as an existing Aboriginal right within section 35.”

The very last sentence of the narrative under Principle 5 concerning the treaties, informs us that

“The Government of Canada recognizes Indigenous peoples’ right to self-determination, including the right to freely pursue their economic, political, social, and cultural development.  (Italics mine)

By way of preliminary observation, it strikes me as strange for the government to introduce the concept of self-determination and insert into it the inherent right of self-government since the former concept has not been ordinarily part of the juridical and judicial discourse of self-government.

These statements read together are confusing and again beg for answers to the following questions:

In the context of the foregoing narrative, is there a material difference between the right to self-determination and the right to self- government? If so, what is it?

Can a right that is not inherent include a right that is? If the inherent right to self- government  is an existing aboriginal right within section 35, why should that not also be  the case for the right to self- determination; particularly  since the latter right  includes the right of the aboriginal peoples to pursue “freely” their “political” development”?  

Having regard to the word “including” in the statement of the Principle, what other specific rights does the right to self-determination include?            

What are the precise scope, contents, and contours of each of the rights identified so far by Principle 1 and of the other rights included in self-determination?

The basic question raised by this principle is: Why is the government admitting the of existence of all these rights, and in particular explicitly conceding the existence of a broad right to self –government under section the alleged right to self- government is an existing aboriginal right under section 35 and if s flesh out the contents and contours of this right.  

As a matter of fact, the Supreme Court has been very cautious in approaching this issue. As William B. Henderson points out in his paper Self –Government: Indigenous peoples, the Court has taken “an incremental approach to the right of aboriginal self-government and broadening law-making powers and jurisdiction through the exercise of the right.”(Edited in the arrangement of the text)  “… in Pamajewon (1996) while the Court was prepared to consider the possibility that a right of self-government was recognised by section 35(1), it stopped short of ruling accordingly; in Delgamuukw (1997)   the Court declined to deal with the issue, while in Sparrow (2000) it sidestepped it.”

And I believe  that it is quite unlikely that the Court will  address the issue  until it is seized of a case which it considers to be  appropriate  for this purpose; probably, a case where  the  existence of the alleged aboriginal right of  self- government under section 35, is the sole issue raised by the appeal.

Even then, based on the decisions rendered by the Court to date, decidedly, it will not approach claims of aboriginal right of self-government based on broad allegations of the nature or scope of the right but instead will focus on the factually most accurate characterisation of the specific conduct, action or activity alleged to be a feature of the alleged self- government.  .  

For example, in Pamawejon the appellants sought immunity from prosecution pursuant to the gambling provisions of the Criminal Code by defining the right to self-government in issue as “the existence in their bands of a broad authority to make decisions regarding natives’ social economic and cultural well-being.”

Eight of the nine judges cut through the verbiage and proceeded to frame “the most accurate characterisation  of the appellants’  claim, namely; that  section 35(1) recognizes and affirms the rights of [their respective bands’]  to participate in ,and to regulate, gambling activities  on their respective reserve lands.”

The Court held that

“Assuming without deciding that s. 35(1) includes self-government claims, the applicable legal standard is that laid out in R. Van der Peet. [1996 para. 180]. Claims to self-government made under s 35(1) are no different from other claims to the enjoyment of aboriginal rights and must be measured against the same standard.” 

The ninth judge dismissed the case on the ground that the appellants’ claim to aboriginal right of self-government is “overly broad”.

The Court further adopted the position of Osborne J.A.  in Pamawejon that Sparrow, is authority for the proposition that

“… any broad inherent right to self- government held by the appellants was extinguished by the British assertion of sovereignty.”

And I would further argue, that even if British sovereignty had not, it was certainly extinguished by most of the numbered treaties; in the alternative, by the Indian Act or by the combination of the provisions of the numbered treaties and of the Indian Act read together, to the extent that until the enactment of Bill C-31 in 1985, Indian bands could not even determine their own membership.

And unlike, the fisheries regulations in the Sparrow case which the Supreme Court held not to have extinguished   but merely regulated the right to fish for food, the Indian Act can hardly be said to have merely regulated the right to self-government.   

Ultimately, all suggestions and proposals, including the recommendations of RCAP, and the initiative in the Meech Lake Accord   to make a special provision for the recognition and affirmation of the existence aboriginal right of self- government came to naught.   

In the premises, so far, the broad right of self-government in Principle 1 is not an aboriginal right but, in effect, one granted by the government. 

In the meantime, the form, jurisdiction, authority and powers of aboriginal self- government and its status in the constitutional pecking order of governments remains to be determined. In this regard, Principle 4 states:

 “The Government of Canada recognizes that Indigenous self-government is part of Canada’s evolving system of co-operative federalism and distinct orders of government.”

The notion of “evolving co-operative federalism” is a political feel good notion, whose existence at any particular point in time, as we all know, is subject to the whims, moods and ideologies of the political parties that happen to govern Canada and the provinces, especially when constitutional and fiscal issues are at stake. At all events, at this point in time, co-operative federalism is immaterial to the matter under consideration.

To my mind, Principle 4 is a sort of fishing expedition designed to ascertain and assess the views of the provinces, territorial governments and the aboriginal leaders on this subject.

At all events, until the aboriginal communities become economically self-sufficient to run their own governments, the notion of self-government is unlikely to be received well by the non-aboriginal taxpayers or, for that matter, the aboriginal groups and individuals who may be precluded from enjoying the benefits, such as they might be, generated by the establishment of these governments.

2. Interim alternative paths to self-governance

In the meantime, nothing prevents the government and the Indian bands together with the appropriate provincial governments to reach agreements to establish aboriginal municipalities located on their respective reserves.

By way of illustration, a somewhat similar approach was adopted by the government of Alberta through the Alberta’s Métis Settlements Act of 2000   which, among other things, provides for Métis self-governance under the laws of Alberta, in settlements established on lands given to Métis communities by the province. Cf. Alberta (Aboriginal Affairs and Northern Development) v. Cunningham (S.C.C. 2011)

And in the event the Indian bands do not care for the Alberta scheme, they can opt to become “Self-Governing Bands” (SGBs), the main features of which are:

1. The Indian Act no longer applies to the SGB or to its “citizens”, although individual “citizens” may still be entitled to “status” under the Indian Act.

2. The SGB

a) owns and manages its land base.

b) sets its own priorities, and its election process is defined by its Constitution.

c) has the power to tax its citizens and other residents.

It strikes me as strange that Indian bands have not opted in greater numbers to become SGBs for starters  to get some experience in self-government in the light of  the fact that  Indian leaders have long asserted and demanded  the recognition of the aboriginal right to self- government.

Finally, Principle 1 also raises the questions as to where and how the non-treaty and non-Status Indians; Indians who are not members of a band and urban aboriginal peoples who are members of various bands will fit into the self-determination and self-government schemes.

To sum up, I submit that, in Principle 1, the government has thrown caution to the winds and unwisely got ahead of itself by adopting the broad definition of and approach to self-government.

Having affirmed the proposition of law set out in the Principle, the government will have a hard time to circumvent it, particularly in the light of Principle 3 which reads:

“The honour of the Crown guides the conduct of the Crown in all of its dealings with the Indigenous peoples.”

I would not be surprised, if at some point, the aboriginal leaders, armed with Principles 1 and 5 invoke their peoples’ right to self-determination and self-government, and demand an altogether different type of relationship with the provinces and with the federal government.

At all events, the government having thumped its nose to the Supreme Court by admitting the existence of the broad rights in question, in the event the issue is litigated at the instance of the aboriginal peoples, the federal government will have a hard time to renege on its position, and in fact, may have no choice but to stand by it.

Frankly, I dread the day when the Attorney-General of Canada will put the Supreme Court in that  delicate situation  of having to dismiss  a  broadly claim for aboriginal right to self-government , while at the same ignoring ,in effect dismissing,  the submissions of the federal government in line with Principle 1 and the narrative related to it.

Principle 2- What is section 35 about?

The Principle reads

The Government of Canada recognizes that reconciliation is a fundamental purpose of section 35 of the Constitution Act, 1982

Personally, I would have phrased the Principle as follows:

The Government of Canada recognizes that reconciliation through the recognition, affirmation and respect of the existing aboriginal, treaty rights of the aboriginal peoples is the rationale underlying the enactment of Section 35 of the Constitution Act, 1982; while the protection these and other rights and freedoms the aboriginal peoples may have is the rational for enacting section 25 of the Charter of Rights and Freedoms

Beyond the statement of the Principle, PGRIP’s narrative concerning section 35 verges on the peculiar.

The second sentence of the first paragraph of the introductory statement to the Principles reads.

Section 35 contains a full box of rights and holds the promise that Indigenous nations will become partners in Confederation on the basis of a fair and just reconciliation between the Indigenous peoples and the Crown. (Italics mine)

First, can reconciliation be effected on any basis other than one which the aboriginal peoples consider to be “fair and just”?

Second, in light of the foregoing considerations concerning Principle 1, how could section 35 hold the alleged promise?

Third, what exactly does it mean that section 35 contains “a full box of rights”? Is the box that is a full sized one that contains rights or is it simply a box full of rights? If the box is full of rights, does that mean that henceforth these will be the only rights protected by section 35? 

Surely, the box cannot be full, since, among others, the Court has yet to pronounce itself on the existence of all the rights recognised by the government in Principle 1?

Fourth, does section 35 hold the alleged promise? Hardly. Surely, most of the rights, privileges and freedoms enjoyed by the aboriginal peoples at present are not section 35 rights and, if sober minds prevail, these are not likely to become such rights, as a result of the reconciliation process; nor do they need to be.

The fifth paragraph of the introductory statement continues:

“The] review of laws and policies will be guided by Principles respecting the Government of Canada’s Relationship with Indigenous peoples. These Principles are rooted in section 35, guided by the UN Declaration, and informed by the Royal Commission on Aboriginal Peoples(RCAP) and the Truth and Reconciliation Commission (TRC)’s Calls to Action“.(Italics mine)

By way of preliminary observation, and as I already demonstrated above, all the Principles, and some segments of narratives that purportedly explain or actually expand the scope of some Principles, are not rooted in section 35.

Furthermore, the statement does not quite accord with the narrative under Principle 2:

“The Government of Canada’s approach to reconciliation is guided by the UN Declaration, the TRCs Calls to Action, constitutional values, and collaboration with Indigenous peoples as well as provincial and territorial governments.”(Italics mine)

Quere: What exactly are these constitutional values? Surely the approach to reconciliation ipso facto includes the review of laws and policies. Hence, how each be guided separately by two different instruments?

If the Principles are rooted in section 35, then, these cannot be guided by the UNDRIP since the Declaration is not part of Canadian domestic law; nor do all its provisions fit within the scope of the section and consequently are not in line with the section 35 rights recognised and affirmed by the Supreme Court to date.

In so far as the narratives concerning section 35 are concerned, I also note the following statement under Principle 5:

“In accordance with section 35, all Indigenous peoples in Canada should have the choice and opportunity to enter into treaties, agreements, and other constructive arrangements with the Crown as acts of reconciliation that form the foundation for ongoing relations.”

Surely, section 35 is wholly immaterial. As a matter of fact, historically, the Indians and the Métis (I am not sufficiently familiar with the case of the Inuit) had the choice and the opportunity to initiate or not to initiate, to accept or not to accept trading agreements with the Hudson’s Bay Company as early as 1681-82.

More broadly, the aboriginal peoples of Canada have enjoyed the choice to initiate or not to initiate requests for treaty- making, as well as the opportunity and the choice to accept or to refuse the treaties offered to them by the Crown as far back as 1725, and, prior to the enactment of section 35, as late as 1975, with the James Bay and Northern Quebec Agreement.

                                                                                                                Principle 5: What were the treaties about in the historical context? The case of the numbered treaties.

Principle 5 states: 

“The Government of Canada recognizes that treaties, agreements and other constructive arrangements between Indigenous peoples and the Crown have been and are intended to be acts of reconciliation based on mutual recognition and respect.”

Quere: What is a “constructive arrangement”? Specifically, to which arrangement(s) does the text refer to?

The narrative adds:

 “In accordance with the Royal Proclamation of 1763, many Indigenous nations and the Crown historically relied on treaties for mutual recognition and respect to frame their relationships. Across much of Canada, the treaty relationship between the Indigenous nations and Crown is a foundation for ongoing cooperation and partnership with Indigenous peoples.”

I readily concede that modern treaties, agreements and comprehensive land claim settlements are indeed intended to be acts of reconciliation based on mutual recognition and respect and that these legal instruments provide one of the foundations of the current relationship between the parties to these legal arrangements and possibly, with the Canadians living in the regions where they are in effect.

However, in a historical context, I consider the proposition that”treaty –relationship between the Indigenous nations and the Crown was “a foundation for ongoing co-operation and partnership with Indigenous peoples” to be fine words.

Surely, of the relationship had been of that nature of the relationship, Indian peoples would not have been put upon as badly as they have been and in some ways still are.

This brings me to the question raised by the wording of the Principle as to whether the numbered treaties were based on mutual recognition and respect.

The leaders of the Indian peoples and their national organisations speak in glowing terms of the spirit and intent of the historical treaties.

At the 2010 annual General Meeting of the AFN, the assembly passed a resolution titled “Sacred Treaties-Sacred Trust: Working Together for Treaty Implementation and Advancing our Sovereignty as Nations”

These leaders passionately and repeatedly insist that their treaty rights are sacred must be respected at all times, a claim that appears to have been substantiated in connection with some of earlier numbered of treaties.

1. Treaty-making

From the Crown’s perspective, the Royal Proclamation, which the Supreme Court has characterised as a “quasi-Constitutional document”, provides the rationale for treaty- making and the reasons and  purposes for which the territories in issue were to be reserved to the Indians. The relevant passages of the Proclamation read:

“And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them. or any of them, as their Hunting Grounds.--We do therefore, with the Advice of our Privy Council, declare it to be our Royal Will and Pleasure. that no Governor or Commander in Chief in any of our Colonies of Quebec, East Florida. or West Florida, do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands beyond the Bounds of their respective Governments. …

We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three new Governments, or within the Limits of the Territory granted to the Hudson's Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as aforesaid.

And We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved without our especial leave and Licence for that Purpose first obtained.

And. We do further strictly enjoin and require all Persons whatever who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above described. or upon any other Lands which, not having been ceded to or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements.

And whereas great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests. and to the great Dissatisfaction of the said Indians: In order, therefore, to prevent such Irregularities for the future, and to the end that the Indians may be convinced of our Justice and determined Resolution to remove all reasonable Cause of Discontent, We do. with the Advice of our Privy Council strictly enjoin and require. that no private Person do presume to make any purchase from the said Indians of any Lands reserved to the said Indians, within those parts of our Colonies where, We have thought proper to allow Settlement: but that. if at any Time any of the Said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony respectively within which they shall lie: and in case they shall and in case they shall lie within the Limits of any Proprietary Government, they shall be purchased only for the Use and in the Name of such Proprietaries, conformable to such Directions and Instructions as We or they shall think proper to give for that Purpose: And We do, by the Advice of Our Privy Council, declare and enjoin, that the Trade with the said Indians shall be free and open to all our Subjects whatever; provided that every Person, who may incline to trade with the said Indians, do take out a Licence for carrying on such Trade from the Governor or Commander in Chief of any of Our Colonies respectively, where such Person shall reside; and also give Security to observe such Regulations as We shall at any Time think fit, by Ourselves or by Our Commissaries to be appointed for this Purpose, to direct and appoint for the Benefit of the said Trade; And We do hereby authorize, enjoin, and require the Governors and Commanders in Chief of all Our Colonies respectively, as well Those under Our immediate Government as those under the Government and Direction of Proprietaries, to grant such Licences without Fee or Reward, taking especial Care to insert therein a Condition, that such Licence shall be void, and the Security forfeited, in Case the Person, to whom the same is granted, shall refuse or neglect to observe such Regulations as We shall think proper to prescribe as aforesaid.”(Italics mine) Text derived from Clarence S. Brigham, ed., British Royal Proclamations Relating to America, 1603-1783 https://catalog.hathitrust.org/Record/010319729

Accordingly, if the officials making treaties were mindful of anything, they were mindful of

first, the need to convince the Indians of the territories identified in the Proclamation, of the Crown’s sense of justice in its dealings with or about their lands and its determination to remove all reasonable cause of discontent in their treatment;

second, getting the Indians peacefully settled away on terms that the Crown considered to be “just and reasonable”, and

third, insuring that the Indians remained peaceful in their dealings with the newcomers, and as importantly, amongst themselves.

On the latter point, historically Indian peoples did not shy away from engaging in tribal wars with one another and with other peoples. For example, the Mohawks of Mohawk Valley, are said to have decimated or suspected of decimating the St. Lawrence Iroquois (a group distinct than the Iroquois of the Iroquois Confederacy); the Iroquois’ conquest of Huronia and the enslavement of Hurons, which by then had become Catholics, caused the end of Huronia, and in the north-western region, the Indians and the Inuit were mortal foes and. engaged in fierce hostilities.

2. Treaty making nation–to-nation

With respect to the treaties signed after the enactment of the Indian Act of 1876 (An Act to amend and consolidate the laws respecting Indians), the Treaty Commissioners had no reason to think outside the  box i.e. the Indian Act, and every reason to act in accordance with its premises .

As a matter of fact, the Treaty Commissioners addressed the Indians with expressions such as the Queen’s- “the Great White Mother‘s children”.

Consequently, there was no reason for them to consider the Indians with whom they treated to constitute “Nations” even where the treaties used the term, as a result of having in mind the wording of the Royal Proclamation  even in  territories not covered the Proclamation.

3.  Were the treaties acts of reconciliation?

The term ” reconciliation” in the context of treaty-making is not synonymous with the meaning of the term in the context of the reconciliation process contemplated in PGRIP, and defined in the narratives of the introductory statement and under Principle 2 quoted above. 

Rather, as also stated under Principle 2 the reconciliation in question involved 

“…reconciling the pre-existence of Indigenous peoples and their rights and the assertion of the sovereignty of the Crown... including [their] inherent rights, title and jurisdiction.”  [at common law, having regard to the terms of the treaties and the laws of the Realm incorporated by reference into the treaties.] (Brackets mine)

4. Were the treaties based on mutual recognition?

In so far as the notion of mutual recognition is concerned, the recognition and respect manifested by the Royal Proclamation were motivated by pragmatic considerations intended to serve the best interests of the Crown, without offending the Indians.

By signing the treaties, at least on paper, the Indians certainly acknowledged the supremacy of the Crown and signified their submission to and obedience of the laws of the new Sovereign, which laws were alien, just about in every respect and often enough, hostile to their culture, beliefs, traditions, customs and practices.

On the other hand, the ceremonies conducted by the Indians on the occasion of treaty making have been shown to be  proof of the fact  that  Indians saw and interpreted  the treaties differently than the Crown officials.

Yet, in the context of  the preponderance of the numbered treaties, the Treaty Commissioners’ speeches fail to disclose any real understanding of and recognition of the aboriginal perspective on treaty making in the light of the Indians’ cultures, customs, practices,  and as GRIP  puts it, of their “ governance, jurisdiction, legal traditions”  associated with the surrender of their lands. Nevertheless, the aboriginal perspective ended up being subject to the following caveat found in numbered treaties, as for example in Treaty No.6:

“….subject to such regulations as may from time to time be made by Her Government of Her Dominion of Canada, and saving and excepting such tracts as may from time to time be required or taken up for settlement, mining, lumbering or other purposes by Her said Government of the Dominion of Canada, or by any of the subjects thereof duly authorized therefor by the said Government. (Italics mine)

In the context of the numbered treaties, the only thing Treaty Commissioners certainly recognised were the facts that the aboriginal inhabitants were in possession of the lands whose surrender they sought to obtain and that for the reasons set out in the Royal Proclamation, it was in the best interest of the Crown to purchase these lands rather than just seize them.

As a matter of law, after the enactment of the Indian Act of 1876 and the establishment and management of Indians bands in accordance with its provisions, the cultures beliefs, customs and practices of Indians relating to land became moot.

Hence, to the extent recognition existed, certainly with the numbered treaties, it was lopsided with the Crown’s recognition  in effect being limited to  the recognition of the pre-existing rights stipulated in the treaties and nothing being  said  about, let alone acknowledged, of the Indians’ subsisting rights under the English common law.

5. Were the treaties based on mutual respect?

In so far as the notion of mutual respect is concerned, while the Indians showed respect to the newcomers, the Treaty Commissioners showed  theirs in their speeches and b, when and where called upon to do so, participating  in the treaty -making ceremonies conducted by the Indians.

As to the respect of the Indians with whom the government negotiated and made treaties is concerned, the taking of the surrendered lands on which the Indians were given certain rights, without any compensatory gesture for the revocation of these rights on those lands  does not strike me as being particularly respectful.

As a matter of fact, I cannot think of anything in the provisions of the treaties in question or in their implementation that showed much, if any, respect.

The fact of the matter is that treaties, certainly the numbered treaties were drafted prior to the treaty-making meetings, and, as such, are a legal instrument akin to contracts of adhesions of which one of the standard clauses in the preponderance of the numbered treaties, imposed upon the Indians

“… [the duty to] aid and assist the officers of Her Majesty in bringing to justice and punishment any Indian offending against the stipulations of this treaty.”(Treaty no.6)

Certainly, on matters of aboriginal decision-making, governance, jurisdiction, legal traditions concerning the lands and the aboriginal communities, to paraphrase Major and Binnie JJ. in Mitchell, the treaties read in conjunction with the Indian Act, did not provide, “much space for Indians to be Indians”. (para.134)

And I venture say that the following rights granted under the treaties were motivated by pragmatism rather than respect: 

 a) to pursue traditional avocations of hunting and fishing and farming, if they so wish;

b)  to select the location of the lands on which they wished to establish their reserves;      

c) to receive compensation for the reserve lands which may be appropriated up by the Crown for “...public works or buildings, of what nature soever”, and

d) to be paid annuities, with the Chiefs receiving a stipend in addition to the standard  annuity.

The numbered treaties may also be looked upon as   precursors to the modern welfare state and to this extent as some expression of respect, albeit inevitably intertwined with self-interest and pragmatic considerations. For example, Treaty no.6   undertakes to provide Indians

a) monetary incentives and support;

b) the tools and materials to help them pursue their avocations;

c)  education or more precisely the promise

“ to maintain schools for instruction in such reserves hereby made as to Her Government of the Dominion of Canada may seem advisable, whenever the Indians of the reserve shall desire it.” (Italics mine),   and

d) disaster relief:

“in the event … the Indians comprised within this treaty being overtaken by any pestilence, or by a general famine, the Queen, on being satisfied …….will grant to the Indians assistance of such character and to such extent as Her Chief Superintendent of Indian Affairs shall deem necessary and sufficient to relieve the Indians from the calamity that shall have befallen them.”

And sad but true to say, apart from the annuities and stipends, the government did not always deliver on its promises and undertakings and when it did deliver, often enough,  it did so, in part, late or both.

All of which fails to show much, if any, respect.

In the premises, Principle 5 fails to describe accurately the record of historical treaty- making, if nothing else certainly with respect to the preponderance of numbered treaties.

I do wish the government would stop engaging in historical revisionism with fine phrases. These are of no benefit to the aboriginal peoples except when these turn out to be prejudicial to the position or arguments of the government.

Surely, the government having made the point that knowing our “true history” and “truth telling” are an integral component of the first phase of reconciliation process; it ought to abide by its own pronouncements.

6. The rest of the narrative under the heading of Principle 5

The narrative goes on to state: 

“The Government also acknowledges that the existence of Indigenous rights is not dependent on an agreement.”  

The Government’s acknowledgment is immaterial. Surely, that is what aboriginal rights are all about and so were the rights of Indians before they entered into land-cessation treaties and so are their rights at common law.

It then expresses what the agreements should and should not be about:

“…and, where agreements are formed, they should be based on the recognition and implementation of rights and not their extinguishment, modification, or surrender.”

It would take some imaginative powers to reconcile this proposition with the notion of “lawful infringement” of treaty and aboriginal rights

Surely, as was the case with land-cession treaties, making an agreement based on the recognition and implementation of certain rights does not preclude the extinguishment, modification or surrender of other rights.

Furthermore, surely, the aboriginal peoples, properly informed and advised by their Elders, lawyers and others of their choice, are or should be free to consent to   the extinguishment, modification or abridgment of parts of one or more of their land-related rights, in order to secure those things they need, to enable them for themselves and for their future generations, as the narrative puts it, to exercise

“[their right to] determine and develop their own priorities and strategies for organization and advancement… to freely pursue their economic, political, social and cultural development.”

To say otherwise, would betray, G-d forbid, a”colonial” mind-set, inconsistent with the aims of reconciliation.

Worse, it would amount to a breach of the aboriginal peoples’ right to self-determination in PGRIP. 

Interestingly enough, UNDRIP does not go as far as the government. Article 32.1 reads:

Article 32

1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.                                                                                                                          

Principle 6- What is “free, prior and informed consent” (FPIC) about?

1.The Principle

Before the 2015 election, in an Aboriginal  Peoples Television Network town hall meeting, the future Prime Minister, told his aboriginal audience that in the absence of  the ” free, prior, informed consent”(FPIC) of an aboriginal community to a pipeline project that would adversely affect it, would “absolutely” result in the cancellation of the project.

In so doing, the Prime Minister, yet again appeared to be thumping his nose to the judgments of the Supreme Court of Canada that have held that the aboriginal peoples do not have the right “to veto” a project that infringes their existing treaty and aboriginal rights, provided the Crown and the proponents of the project comply fully with their respective duties and obligations towards the affected aboriginal peoples /communities set out by the Supreme Court and in the applicable legislation. For an analysis of the FPIC requirement see: Ken S. Coates and Blaine Favel, Understanding FPIC, MacDonald-Laurier Institute, April 2016, macdonaldlaurier.ca/files/pdf/MLINumber9-FPICCoates-Favel04-29-WebReady.pdf

Articles 32.2 and 32.3 of UNDRIP read:

2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.  (Italics mine)                                                3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

The corresponding Principle 6 in PGRIP reads:

The Government of Canada recognizes that meaningful engagement with Indigenous peoples aims to secure their free, prior and informed consent when Canada proposes to take actions which impact them and their rights on their lands, territories, and resources. (Italics mine)

Dwight Newman, Chair of Research in Indigenous Rights at the University of Saskatchewan, College of Law, in an opinion piece titled Ottawa’s sly turn on consent may hurt Indigenous relations published in the Globe and Mail of August 3, 2017, noted the difference between the wording of Article 32.1 and Principle 6.

https://www.theglobeandmail.com/opinion/ottawas-sly-change.../article35863756.

He wrote:

“To the average reader, these words may look very similar. But they matter immensely to lawyers, bureaucrats and Indigenous communities. The language used in UNDRIP has occasioned a debate on whether it imposes a requirement of obtaining consent or simply mandates seeking consent in good faith but permitting various developments to proceed if it is not obtained. [The] choice of language [in Principle 6] has the effect of resolving this debate in favour of the lesser expectation-consultation, with no requirement of obtaining consent. The UNDRIP language actually supports this lesser expectation which to me, offers a reconciliation between Indigenous and non-Indigenous interests that seek to be fair to all. (Fairly enough, my view has been challenged, given the ongoing debate on the issue of consent).”

I agree with the Professor Newman’s reasoning and interpretation of the requirement. This interpretation is also supported by Article 32.3 which imposes on the States the mandatory obligation to provide effective mechanisms for just and fair redress and to take appropriate measures to mitigate adverse environmental, economic, social, cultural or spiritual impact for any such activity , which I construe to include the activities with respect to which FPIC had not been obtained.

 At all events, the foregoing interpretation is consistent with the decisions of the Supreme Court concerning the lawful infringement of aboriginal or treaty rights.

2.  Aboriginal peoples’ role in public decision-making

The narrative of Principle 6 promises that

“[The government through various processes and approaches] aimed at

securing consent, as well as creative and innovative mechanisms that will

help build deeper collaboration, consensus and new ways of working

together. It will ensure that Indigenous peoples and their governments have

a role in decisions-making as part of the Canada’s constitutional framework and ensure that Indigenous rights, interests and aspirations are recognized in decision making.” (Italics mine)

Tall order. The cows did not take long to come home on the government’s promises. Never mind “deep collaboration”, the representatives the AFN who, along with representatives of the other two aboriginal nations, are to work on the development of environmental legislation with the federal government and industry representatives, halted their co-operation with the government  less than a week  after making headlines in the conference convened by the government with respect to this project.

In their letter addressed to the Prime Minister they accused the government  of breaching has breaching its  promises to work with aboriginal peoples as full partners  in crafting  the rules under which major mining, oil, gas and pipeline projects would be assessed, in this instance, by being left out of key decisions on the proposed legislation. And in the process they exposed the inner rifts within the AFN both political and on environmental issues, when the National Chief of AFN refused to sign the letter

As quoted in the Globe and Mail of October 19 inst., the letter dated October 16 in part reads:

“Technical discussions between officials have been largely one-sided and do not encompass the principles of collaboration and transparency that a nation-to nation   relationship must embody.”

Such are the fruits of the kinds of skating glib statements made to promote the sunny ways of the Prime Minister.

Post-Script

1. Curious spellings and glib terminology  

I think Canada must be the only country where the government ignores the vocabulary and the spelling used in its own Constitution. Thus,

1. The term “aboriginal” in sub-section 35(1), for an unfathomable reason, is now spelled “Aboriginal”.

2. The Indians and the Métis in sub-section 35(2) are now referred to as the First Nations and the Métis Nation, although neither of them are nations in the proper sense of the word, particularly when the phrase First Nation is used to refer to Indian bands. They are peoples.

In this regard, I am at loss to understand the rationale for describing two of the aboriginal peoples as “nations” while keep referring to the third people by its name: Inuit.

2.1. The word “nation”, also for some unfathomable reason, is spelled with a capital N while we spell the word correctly when we refer to the Canadian nation.

3. For yet another unfathomable reason, the phrase “aboriginal peoples” in has been abandoned in favour of “Indigenous people(s)” while  UNDRIP  which is to guide  the reconciliation process, correctly spells word as “indigenous” in compliance  with current rules of spelling.

I wonder whether this is done to distinguish the aboriginal “Indigenous” peoples from non-aboriginal “indigenous” Canadians?

I do wish however that, before the vocabulary and the spelling get even more garbled, the government get rid of them; use the constitutional vocabulary and spelling, and gets on with the serious business of reconciliation.

2. Let’s quit mythologising aboriginal peoples

In a recent article in the Globe and Mail of October 17, 2017 titled Indigenous voices rise to the fore amid national energy debate, Shawn McCarthy.

The story is about a two day summit of industry leaders convened by the federal Natural Resources Minister to map out a national energy strategy where Indian, Metis and Inuit leaders are reported to have taken “centre stage” with provincial ministers and company executives.

Mr. McCarthy reported that in an interview  related to the  this matter,Mr. Carr said:

”a national strategy needs to be inspired by aboriginal peoples’ connection with the land and their sense of responsibility to future generations.

We embrace the relationship [with Indigenous people] that inevitably characterizes progress as a nation with protection of the land, the air and the water.

And there truly is a generational responsibility to build on what has come before and to leave the place better than we found it. And those values are inherent in aboriginal culture and aboriginal thinking” (Italics mine).

Surely this is the kind of political balderdash can only be uttered by a Minister who does not seem to be clued into values that are inherent in aboriginal culture and thinking, from historical and  contemporary perspectives.

The environmental experiences of aboriginal peoples from pre-contact, up until the onset of industrialisation and their relation to the land and its resources, is hardly be comparable to the political and environmental problems we are presently experiencing.

The vast land mass and the extremely low density of the peoples who roamed on these lands could or would have hardly caused the crystallisation of the values that are alleged to be inherent to aboriginal culture and thinking, with respect to a matter that was not an existential issue or problem in the normal course of events, save when the aboriginal peoples exterminated herds in times of famine.

Further, as the article points out while some aboriginal leaders ” question the government’s commitment to  reconciliation while it is approving pipelines over the objections of communities… many [other] leaders are eager  to partner with companies on oil and gas projects, if they are treated with respect, see local  benefits to their communities and the environmental impacts are mitigated.”

At the end of the day, as the National Chief of the AFN put it:

“It’s up to each First Nation to determine how it will respond to development.”

Surely, if the attitude of the leaders of the aboriginal peoples are divided on this environmental issue, and, in final analysis, each band will make its own call as to whether it will welcome development, and there are over 600 of them, the alleged aboriginal values cannot possibly be inherent in their cultures and thinking in the sense suggested by Minister Carr.

Consulting and studying the views and submissions of the aboriginal peoples on environmental issues is a commendable initiative that ought to be institutionalised, since they, like other Canadians, have a genuine stake in the way the government’s energy plans and policies are framed and affect both the environment and the economic opportunities of Canadians, including the aboriginal peoples.

Furthermore, not all the aboriginal persons or groups, subscribe to “environmentalism”, nor can they expected to do so.

For example, when I handled the defence against the lawsuit initiated by the Labrador Indians who  sought  to stop, on environmental and other grounds, the training and exercise program  of low- level flying  out of Goose Bay, Labrador by the air forces of some  NATO member countries, I had  the occasion to see pictures or an amateur  film, I cannot quite recall which it was, of the summer camping grounds and environs used  by these Indians. It was an appallingly environmental sight.

Surely we can do away with mythologising the aboriginal peoples’ environmental values and portraying these values as being inherent to their culture and thinking. It is both untrue and unnecessary.

We certainly can and must do without complicating the reconciliation process by burdening it with propositions that are both untrue and unnecessary

                             

Concluding Note

I consider PGRIP to be a public relations exercise of some sort.

To the extent the document was or is intended to be a statement of  the law pertinent to the subject of reconciliation, it leaves much to be desired.

As as a retired member of the Department of Justice who practiced in the field of aboriginal law over a period of 24 years, I have no hesitation to state that this document, as drafted, would not have seen the light of day on the watch of the Attorneys-General under whom I served for 29 years and those that preceded them. And this not because they would have objected or resisted to the reconciliation project.

Surely, Canadians deserve better.

Hence, to answer the question I framed at the beginning of the paper, I am inclined to conclude that, in the light of the manner in which the project has proceeded up to this point in time,

first, the reconciliation process may well turn out to be the case of the elephant that gave birth to a mouse.

second, the process may yet turn into another emotionally draining bitter experience for the aboriginal peoples because, regretfully   the Prime Minister does not have the wherewithal and the political courage to address in a timely fashion the complex legal issues and the tough fact- driven ones, not to mention the process management issues and find workable solutions that are satisfactory to the aboriginal peoples and for that matter, to Canadians who support the process, and

finally, Canadians will not have to wait a long time to discover which way this new masterstroke is heading.

For that matter, it will not take long for the aboriginal leaders, particularly those of the Indian peoples, who have been listening to the Prime Minister’s pronouncements and comparing his words to his deeds, to question and then to despair the failure of the process to produce significant progress towards the attainment of the goals that matter to the aboriginal peoples.

 Eliminating more than two dozen of boil -water advisories and planning to end the remaining ones over a period of two years plus, goes only so far to impress people, but no further.