By Michael Bryant Contributor

Toronto Star: Michael Bryant served as Ontario’s minister of Aboriginal Affairs and attorney general in the Liberal McGuinty Government. He has taught, published and litigated in the field and currently works with Ishkonigan Mediation and Negotiation.

When 60 per cent of the Assembly of First Nations chiefs voted last week not to ratify a multibillion dollar offer from the federal government, the Assembly quickly reassembled to determine its next steps.

The federal government must do the same and to change its bilateral approach that treats First Nations as a monolith, to a multilateral approach that will achieve consensus with the Assembly.

We already know that Canada “wilfully” and “recklessly” discriminated against First Nations children and their families, the Canadian Human Rights Commission ruled in 2016, thanks to Cindy Blackstock and other brave complainants. The question is only in the precise remedy.

In the international theatre, nation-to-nation relationships are managed not only by lawyers, but also by diplomats and their political leaders. The same should apply to the Crown-Indigenous nation-to-nation relationship but doesn’t.

For last week’s vote, I’d bet that the entire process, from the settler side, would have involved too many ministry officials (bureaucrats) and lawyers, and not enough political leadership, which is not a winning recipe for such high profile settlements. That has to change.

There is a precedent, it turns out. I was the Ontario Minister of Aboriginal Affairs when the Chiefs of Ontario unanimously ratified a $2B+ gaming agreement in 2008, which I personally negotiated on behalf of the Crown.

The success of that vote was born out of the failure to ratify an inferior agreement a couple years previous. Back in 2005, an agreement was reached but not ratified, in part for the same reasons as the Assembly of First Nations rejected the 2024 settlement last week. The text of the agreement left Chiefs with more questions than answers, and it was overly lawyered up, lacking the political sensitivity and diplomatic respect needed to earn First Nation support.   

So the McGuinty government changed its approach to reaching a deal, putting a sitting cabinet minister’s reputation on the line. Similarly, the Chiefs of Ontario assembled a negotiating committee of four chiefs and an elder. We kicked out all the lawyers (except me) and negotiated nation-to-nation, round the clock, for a week. This wasn’t just about getting the right agreement in place; it was also about building a consensus among the Crown and all Chiefs of Ontario. 

Here are our lessons learned.

• Multilateralism: multilateralism is a primary norm of international diplomacy, equally applicable between Indigenous nations and Canada. Yet, the Crown regularly adopts a bilateral approach, wrongly treating First Nations as a monolith. A federal government committed to reconciliation requires more than slogans and land acknowledgments. It needs to roll up the sleeves and push its ministry officials and lawyers to an agreement that is politically defensible to a majority of Chiefs.

It even failed to get the most famous complainant, Cindy Blackstock, onside, notwithstanding that she’d already been the victim of “retaliation” by the feds in 2015. Indeed, some ratification champions need to be identified from amongst the community (like Cindy Blackstock!), as the Chiefs are elected leaders, who, like all leaders, have allies and opponents.

That’s going to involve some diplomacy with Assembly of First Nations leadership, at the political level. Politicians have to walk the walk on reconciliation. Paying lip service engenders resentment and distrust, which is what happened in Calgary last week.

• R-E-S-P-E-C-T: the corollary to hubris is respect. I’ve heard federal officials patronize Chiefs about what’s in their community’s best interest. That’s called colonialism. Assembly of First Nations chiefs will not tolerate it today. Meanwhile, government lawyers are so risk averse that they insist on unnecessary clauses that end up lost in legal translation. It’s all about respect.

• Lawyers, know your lane: Once the agreement is reached, then the lawyers on both sides should play no public-facing role with the ratification process, other than limited, respectful sharing of information and only by those capable of diplomacy. If called upon to interpret the agreement, they cannot sound like they are advocating for a ratification outcome. And no browbeating. With the recent Assembly of First Nations vote, some federal officials argued sotto voice that this agreement was the best the Assembly of First Nations could get from a federal government. But that’s how the original treaties were foisted on First Nations in centuries past. To say that Chiefs really have no choice but to ratify will almost guarantee that they will not.

So now what? Don’t give up on this one. Learn from this experience. Do better, embracing respect and political wisdom from First Nations’ leadership and drawing a tight circle around the lawyers’ roles. Nobody said reconciliation would be easy. 

Opinion articles are based on the author’s interpretations and judgments of facts, data and events. More details