Pamela Palmater is a Mi’kmaw citizen and member of Eel River Bar First Nation. She has been a practicing lawyer for 18 years and currently holds the Chair in Indigenous Governance at Ryerson University.
Many First Nations in Canada breathed a collective sigh of relief when former Prime Minister Stephen Harper and his Conservative government were defeated in the last federal election. After a decade of troubling legislation and aggressive extraction and development activities on Indigenous lands, Prime Minister Justin Trudeau’s commitment to a renewed nation-to-nation relationship with First Nations was a welcome relief to many. Trudeau’s pre-election commitments to repeal Harper’s laws, lift the 2-per-cent funding cap on First Nation social programs and implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) ultimately became his post-election Indigenous platform.
But almost two years have passed and very little, if any, substantive progress has been made on these commitments. The Assembly of First Nations (AFN)’s annual general assembly (AGA) starts on July 25 and, with numerous federal ministers slated to be in attendance, the pressure for the Liberal government to be held to account to the chiefs for their inaction will be high.
Given their lack of progress on Trudeau’s commitments, what could the Liberals possibly report at the assembly? To date, the Liberal government has either broken or failed to act on every single commitment Trudeau has made, and there are only so many times that the same promises can be held up as new or historic announcements before even the most trusting leaders see through the ruse. Trudeau has used the same pre-election promises as a historic announcement at the 2015 AFN AGA, at the 2016 AGA, and—not surprisingly—has managed to repackage the same promises into yet another announcement in the weeks leading up to the 2017 AGA: a memorandum of understanding between Canada and the AFN. However, the joint priorities contained in this MOU are far weaker than Trudeau’s previous promises, and specifically exclude those promises for which he has been criticized for failing to implement, i.e., the repeal of Harper’s laws and the removal of the 2 per cent funding cap.
But Trudeau is not the only one scrambling to think of new, historic or unprecedented announcements to make at this year’s AGA. Justice Minister Jody Wilson-Raybould was widely criticized for her position that the implementation of UNDRIP into law in Canada was “unworkable” and only served as a political distraction. While she subsequently attempted to clarify her position by stating that Canada’s commitment to implementing UNDRIP was unconditional, she nevertheless confirmed that UNDRIP would be limited by section 35 0f the Constitution and the many court decisions which have justified the infringements of the Aboriginal and treaty rights contained therein. Wilson-Raybould has also confirmed that her first priority as Attorney General of Canada is to uphold all of Canada’s laws (versus Indigenous laws) and that reconciliation with Indigenous peoples can only happen through a process of federal recognition—that is, under federal laws, within the context of Canada’s asserted sovereignty and subject to Canada’s constitution.
This leaves little doubt that the Liberal plan is less about true nation-to-nation relations and actual implementation of Indigenous rights and more about repackaging the Liberals’ same old legal and policy positions into a flashy announcement for the AGA. Wilson-Raybould’s recently released “Principles respecting the Government of Canada’s relationship with Indigenous peoples” document sounds very similar to the former Liberal government’s 1995 Inherent Right Policy and previous MOUs between Canada and the AFN. For example, the first principle states that Canada recognizes “the right to self-determination”—something the Liberal government acknowledged with the AFN in an MOU in 2005. This first principle goes on to provide that Canada now recognizes the “inherent right of self-government”—something the Liberals’ Inherent Right Policy did more than 20 years ago. Principle number four speaks about Indigenous self-government as being part of Canada’s cooperative federalism—just like the Inherent Right Policy’s principle that all Indigenous governments would operate within the Canadian federation. The rest of the principles are extracted directly from the 1995 Inherent Right Policy, the 2005 Liberal MOU and the numerous Supreme Court of Canada decisions related to Aboriginal and treaty rights.
Given the constitutional and international legal protections, Canada should have been respecting the right of self-determination, Aboriginal and treaty rights, and Indigenous land rights long ago. Certainly, an announcement that Canada intends to start respecting the same laws that they have instead “honoured more in the breach” than in the observance is no change to the same status-quo relationship of endless broken promises. If the Liberals had any real intention of respecting Indigenous rights—including the decisions of Canada’s courts and tribunals—then the government would not have failed to implement the decision of the Canadian Human Rights Tribunal on discriminatory underfunding for First Nations children in care; it would not be battling Sharon McIvor at the United Nations to deny her equality rights, nor would it approve mines, forestry and pipelines on our lands without our consent.
These principles, as problematic are they are, should never have been announced as the basis of the new relationship, but should instead have been sent as an internal memo to Cabinet instructing them to once and for all start abiding by the rule of law over which Wilson-Raybould appears so protective. Please don’t insult our leaders and try to pass off these old beads and trinkets as new gifts to cement the same tired relationship. The Liberal government should step up and address the suicide crisis, over-incarceration crisis, health crisis, housing and water crisis; it should send all our children to proper schools, eliminate gender inequality in the Indian Act, reset the national inquiry into murdered and missing Indigenous women and girls and stop fighting First Nation children in foster care and abide by the court decision. When the Liberals put some action to their tired, recycled promises, then we’ll know that reconciliation is possible.
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