Call to Action # 45

We call upon the Government of Canada, on behalf of all Canadians, to jointly develop with Aboriginal peoples a Royal Proclamation of Reconciliation to be issued by the Crown. The proclamation would build on the Royal Proclamation of 1763 and the Treaty of Niagara of 1764, and reaffirm the nation-to-nation relationship between Aboriginal peoples and the Crown. The proclamation would include, but not be limited to, the following commitments:

  1. Repudiate concepts used to justify European sovereignty over Indigenous lands and peoples such as the Doctrine of Discovery and terra nullius. 
  2. Adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation.
  3. Renew or establish Treaty relationships based on principles of mutual recognition, mutual respect, and shared responsibility for maintaining those relationships into the future.
  4. Reconcile Aboriginal and Crown constitutional and legal orders to ensure that Aboriginal peoples are full partners in Confederation, including the recognition and integration of Indigenous laws and legal traditions in negotiation and implementation processes involving Treaties, land claims, and other constructive agreements.

Indigenous Watchdog Status Update

Current StatusAug. 17, 2020NOT STARTED
Previous StatusJune 15, 2020NOT STARTED

Why “Not Started”?

The Government response ignores the central tenets of this Call to Action:

  • a Royal Proclamation of Reconciliation
  • the Royal Proclamation of 1763,
  • the Treaty of Niagara of 1764.
  • The United Nation’s Declaration on the Rights of Indigenous Peoples designated by the Truth and Reconciliation Commission via Call to Action # 43 as the framework for reconciliation.

UNDRIP is  is the most comprehensive international instrument on the rights of indigenous peoples. It establishes a universal framework of minimum standards for the survival, dignity and well-being of the indigenous peoples of the world and it elaborates on existing human rights standards and fundamental freedoms as they apply to the specific situation of indigenous peoples. UNDRIP clearly states 46 specific articles vs the generic, non-defined “renewing the relationship with Indigenous peoples, based on the recognition of rights, respect, cooperation and partnership”.

The government has, however, re-affirmed the nation-to-nation relationship through multiple vehicles: “Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples”, “A civil Directive, Working Group of Ministers on the Review of Laws and Policies Related to Indigenous Peoples”.

  1. No formal repudiation of Doctrine of Discovery or terra nullius in this specific C2A directed at the Federal Government
  2. June 21, 2019 – Bill C-262 fails to pass in the Senate and dies on the order paper. Liberal government made a formal commitment on Dec. 5, 2019 to re-introduce UNDRIP legislation within the first year of a new mandate but no indication of a National Action Plan or any details about how implementation will be in alignment with Section 35 of the Constitution Act, 1982 
  3. Treaty relationships are addressed through “Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples but no indication of how or any discussion of integration with the National Action Plan
  4. Government “Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples” do not align with UNDRIP. The Federal government is currently reviewing all laws and policies impacting Indigenous peoples but there is still no formal recognition and/or acknowledgement of aboriginal laws and legal tradition. Also, C2A # 30 introduces some ambiguity around Aboriginal justice systems that fall in coordination with” – federal and provincial governments”.
i. Repudiate concepts used to justify European sovereignty over Indigenous lands and peoples such as the Doctrine of Discovery and terra nullius.

The federal government has informally repudiated the Doctrine of Discovery and terra nullius through an address given by Minister of Crown Relations and Northern Affairs, Carolyn Bennett at the Inited Nations Permanent Forum on Indigenous issues in May, 2017. But their has been no formal legislative repudiation or or integration of the AFN recommendations below.

Assembly of First Nations: Dismantling the Doctrine of Discovery, January 2018

… all doctrines, policies and practices based on advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust …

UN Declaration on the Rights of Indigenous Peoples, preambular para. 4

Advancing reconciliation requires bringing Canadian law and policy into line with international human rights law, which has condemned doctrines of superiority, including discovery and terra nullius, as colonial and racist. Yet the racist assumptions and impacts of these doctrines live on in aspects of Canadian law and policy. They are evident in underlying assumptions that assume First Nations are “claimants” in our own lands and that treat First Nations as somehow lacking sovereignty. The assumptions and impacts of these racist doctrines must be uprooted. The path forward will require Canada to acknowledge the truth of our pre-existing and continuing sovereignty as self-determining peoples.
AFN National Chief Perry Bellegarde
https://www.un.org/esa/socdev/unpfii/documents/faq_drips_en.pdf

The Assembly of First Nations remains deeply concerned about the contemporary ramifications of the doctrine of discovery and other discriminatory practices. Now is the time for Canada to finally and formally end any reliance on the doctrine of discovery. The AFN recommends that Canada take the following steps:

  1. Acknowledge that this doctrine has had and continues to have devastating consequences for Indigenous peoples worldwide, including First Nations in Canada;
  2. Reject doctrines of superiority as illegal and immoral, and affirm that they can never be a justification for the exploitation and subjugation of Indigenous peoples and the violation of human rights;
  3. In full partnership with First Nations, examine how Canadian history, laws, practices and policies have relied on the doctrine of discovery;
  4. Repudiate all doctrines of superiority in a legislative framework for implementation of the United Nations Declaration on the Right of Indigenous Peoples, developed together with Indigenous peoples;
  5. Reinterpret Canadian law in a manner consistent with the United Nations Declaration on the Right of Indigenous Peoples and other contemporary international human rights standards;
  6. Ensure that the violation of First Nations’ rights to lands, territories and resources that were taken without their free, prior, and informed consent are effectively redressed; and
  7. Ensure that the doctrine is not in any manner invoked in contemporary court cases or negotiations.

http://www.afn.ca/wp-content/uploads/2018/02/18-01-22-Dismantling-the-Doctrine-of-Discovery-EN.pdf

ii. Adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation.

The federal government has committed on Dec. 5, 2019 to re-introduce legislation to develop and implement UNDRIP but offers no details on National Action Plan or strategies on how to align UNDRIP with Section 35 of the Constitution Act, 1982. The “Principles respecting Canada’s relationship with Indigenous people” and the “Directive on Civil Litigation” address some of the implementation issues.

Principles respecting the Government of Canada’s relationship with Indigenous peoples

The implementation of the United Nations Declaration on the Rights of Indigenous Peoples requires transformative change in the Government’s relationship with Indigenous peoples. The UN Declaration is a statement of the collective and individual rights that are necessary for the survival, dignity and well-being of Indigenous peoples around the world, and the Government must take an active role in enabling these rights to be exercised. The Government will fulfil its commitment to implementing the UN Declaration through the review of laws and policies, as well as other collaborative initiatives and actions. This approach aligns with the UN Declaration itself, which contemplates that it may be implemented by States through various measures. 

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.

  1. The Government of Canada recognizes that 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. The Government of Canada recognizes that reconciliation is a fundamental purpose of section 35 of the Constitution Act, 1982.
  3. The Government of Canada recognizes that the honour of the Crown guides the conduct of the Crown in all of its dealings with Indigenous peoples.
  4. The Government of Canada recognizes that Indigenous self-government is part of Canada’s evolving system of cooperative federalism and distinct orders of government.
  5. 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.
  6. 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, including their lands, territories and resources.
  7. The Government of Canada recognizes that 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. The Government of Canada recognizes that reconciliation and self-government require a renewed fiscal relationship, developed in collaboration with Indigenous nations, that promotes a mutually supportive climate for economic partnership and resource development.
  9. The Government of Canada recognizes that reconciliation is an ongoing process that occurs in the context of evolving Indigenous-Crown relationships. T
  10. The Government of Canada recognizes that 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

Directive on Civil Litigation Involving Indigenous Peoples

This Directive pursues the following objectives: (1) advancing reconciliation, (2) recognizing rights, (3) upholding the honour of the Crown, and (4) respecting and advancing Indigenous self-determination and self-governance. These objectives, and the guidelines for litigation counsel they promote, are interrelated.

#5: Recognizing Aboriginal rights advances reconciliation.

The Principles require a decisive break with the status quo. Specifically, principle 1 calls on the Government of Canada to ensure its relationships with Indigenous peoples are based on the recognition and implementation of the right to self-determination, including the inherent right of self-government. Principle 2 recognizes that reconciliation requires “hard work, changes in perspectives and actions, and compromise and good faith, by all.”

The Principles require the Government of Canada and its officials to change the way they do business. In litigation, this means, above all, approaching issues in a way that does not begin and end with a denial of Aboriginal rights.

As specified in Litigation Guideline #12, this Guideline requires counsel to recognize Aboriginal rights, including Aboriginal title. In this period of transition – as a new recognition and implementation of rights framework is being developed and implemented – rights must be recognized where they can be recognized.

#15: A large and liberal approach should be taken to the question of who is the proper rights holder.

Canada respects the right of Indigenous peoples and nations to define themselves and counsel’s pleadings and other submissions must respect the proper rights-bearing collective. Where rights and title have been asserted on behalf of larger Indigenous entities – nations or linguistic groups, for example – and there are no conflicting interests, Canada in the proper case, or where supported by the available evidence, will not object to the entitlement of those groups to bring the litigation. This approach is consistent with principle 1, which affirms the Government of Canada’s renewed nation-to-nation approach. In Aboriginal rights and title cases, Canada will not usually plead that smaller Indigenous entities – clans or extended family groups, for example – are the proper holders of Aboriginal rights and title.

#17: Oral history evidence should be a matter of weight, not admissibility.

Counsel should treat oral history evidence as a matter of weight, not admissibility. Similarly, counsel must take a respectful and cautious approach when testing oral history evidence through cross-examination. To ensure appropriate treatment of this evidence, counsel should consider developing an oral history protocol with opposing counsel.

https://www.justice.gc.ca/eng/csj-sjc/ijr-dja/dclip-dlcpa/litigation-litiges.html

iii. Renew or establish Treaty relationships based on principles of mutual recognition, mutual respect, and shared responsibility for maintaining those relationships into the future.

AFN Special Chiefs Assembly Resolution No. 67 / 2018 – Rejection of the Recognition and Implementation of Indigenous Rights Framework and Associated Processes.

Dec. 4-6, 2018 – The AFN confirms the following

  • Only First Nations can determine the path to decolonization.
  • Reject Canada’s Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples (Ten Principles) as the basis of the relationship going forward. Joint principles of understanding must be developed in partnership with First Nations and be enshrined in a new Royal Proclamation.
  • Reject the Recognition and Implementation of Indigenous Rights Framework (the Framework) and will take all necessary steps to prevent the passing of any legislation related to the Framework created by the federal government. There have been no meaningful changes to the Framework process since it was announced in February 2018, despite widespread criticism and outright rejection from First Nations across the country. Unilaterally developed policy and legislation that sets the parameters of Canada’s relationship with First Nations is in direct contravention of the nation-to-nation relationship and Canada’s obligations under international law.
  • Call on the Assembly of First Nations to support First Nations in developing their own nation-building processes, including law-making, institution-building, and research of traditional governance systems. It is imperative that First Nations begin developing standards of governance and law-making and begin to assert their inherent rights and unextinguished jurisdictions outside the purview of Canadian legislative control.
iv. Reconcile Aboriginal and Crown constitutional and legal orders to ensure that Aboriginal peoples are full partners in Confederation, including the recognition and integration of Indigenous laws and legal traditions in negotiation and implementation processes involving Treaties, land claims, and other constructive agreements

Canada – AFN MOU on Joint priorities

Treaty Relationships and Indigenous Rights
June 12, 2017 – AFN stressed the importance of moving beyond policies and laws aimed at denial of our rights and towards recognition, implementation and enforcement of our rights, Treaties, title and jurisdiction.

Sept. 13, 2018 – More than 500 First Nations leaders and delegates gathered on Algonquin territory in Gatineau, Quebec September 11 and 12 for a national policy forum on Affirming First Nations Rights, Title and Jurisdiction.  First Nations leaders from across the country discussed the federal government’s proposed approach to rights and reconciliation legislation. National Chief Bellegarde.  “We are self-determining nations with jurisdiction to take control of where we are and where we need to go as people and as nations.  Out of respect for treaties and the vision of our ancestors, we are willing to work in partnership, but First Nations will not accept a prescriptive and rushed process that doesn’t respect self-determination or the duty to consult.

Current AFN Resolutions 08/2018 Implementing Canada’s Recognition and Implementation of Indigenous Rights Framework and clarifying the role of AFN and 39/2018 First Nations Determination to the Path to Decolonization confirm support for First Nations rights holders to lead the process and direct AFN to call on the Government of Canada to work with First Nations before adopting and implementing any legislative or administrative measures that affect them.

Sept. 25, 2018 – Resolution 39/2018 First Nations Determination to the Path to Decolonization. This Resolution calls for the halt of the current federal initiative, the Recognition and Implementation of Indigenous Rights Framework. It also calls for the development of a First Nations-led negotiation process to ensure implementation of the UN Declaration on the Rights of Indigenous Peoples and a joint action plan for that implementation.
Delegates shared their concerns and highlighted the deficiencies in both the approach and execution of the federal process, one that was unilaterally designed and executed by Canada… delegates were adamant that any joint initiative involving Canada must be based on an accurate understanding of the scope and content of First Nations rights, section 35 law, Treaties and international law. Canada’s current proposal fails to do so and, as such, more time and work is needed among First Nations to develop a strategy for a path forward.

Inuit Nunangat Declaration Crown Partnership Priorities

Land Claims Agreements Implementation
Feb. 14, 2018 ITK welcomes the federal government’s commitment to developing a framework that implements Inuit rights. Inuit welcome all actions to ensure our rights, as affirmed in Section 35 of the Constitution and the United Nations Declaration on the Rights of Indigenous Peoples, are upheld and implemented. The right of Inuit to self-determination, most notably expressed through land claims agreements negotiated between Inuit and the Crown, are constitutionally protected frameworks that already recognize many Inuit rights. A significant challenge for Inuit is implementation of those recognized rights, consistent with the honour of the Crown. In the implementation of today’s announcement (a Recognition and Implementation of Rights Framework), we expect that federal, provincial and territorial governments will work with Inuit through our representational organizations and democratic structures to ensure that our rights are upheld and our land claims agreements are fully implemented.

Official Federal Government Response: Sept. 5, 2019

The Government of Canada is committed to renewing the relationship with Indigenous peoples, based on the recognition of rights, respect, cooperation and partnership.

On February 14, 2018, the Prime Minister announced that the Government of Canada will fundamentally transform the relationship with Indigenous peoples  by basing the relationship on the recognition and implementation of Indigenous rights. This approach will align with the United Nations Declaration on the Rights of Indigenous Peoples (UN declaration) and advance self-determination. The important work to reset the relationship with Indigenous peoples has already begun.

The following measures have been undertaken since 2015:

  • endorsed the UN declaration and committed to its full implementation
  • established the Working Group of Ministers on the Review of Laws and Policies Related to Indigenous Peoples whose work is now being built upon by the new Cabinet Committee on Reconciliation
  • adopted and released the Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples
  • adopted new strategies to pursue negotiation rather than litigation as the preferred path to resolve disputes, including the release of the Directive on Civil Litigation Involving Indigenous Peoples
  • worked with First Nations, Inuit, and Métis to co-develop and advance shared priorities

The Government of Canada continues to explore ways to address Call to Action 45, in collaboration with Indigenous peoples

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