Paul L.A.H. Chartrand of St Laurent, Man., is counsel to the law firm DDWest LLP with offices in Winnipeg, Calgary and Airdrie.
In August 1884, John A. Macdonald, the prime minister, wrote to Governor General Lansdowne about the concerns of the Aboriginal peoples in the West: “I think the true policy is rather to encourage them to specify their grievances in memorials and send them with or without delegations to Ottawa. This will allow time for the present effervescence to subside, and on the approach of winter the climate will keep things quiet until next spring.”
That talk rather than action, which has been the defining feature of federal policy since the beginning, may well lie behind the cautious or skeptical response to Prime Minister Justin Trudeau’s recent announcement that the newly named “Indigenous and Northern Affairs” department (INAC) will be replaced by two new departments: a Department of Crown-Indigenous Relations and Northern Affairs, and a Department of Indigenous Services.
The announcement acknowledges that this change was proposed over two decades ago in the 1996 final report of Canada’s Royal Commission on Aboriginal Peoples (RCAP) on which I served as a commissioner.
The Prime Minister and his champions for change will have to confront, among other challenges, the need for a willing and effective role by the provinces and the imperative for political and economic aggregation on the part of existing First Nations under the Indian Act regime.
The purpose of the change was envisioned by RCAP as dealing more effectively with the two primary but distinct aspects of Aboriginal policy: First to ‘close the gap’ in social and economic conditions to allow ‘status Indians’ or ‘First Nations on reserves’ administered under the Indian Act to catch up to Canadian standards, and second to make the kinds of legislative and policy changes needed to affirm and recognize self-determination and self-government.
In the view of the RCAP, the ‘services’ department would exist solely to continue to administer the affairs of ‘Indians’ under the Indian Act and of the Inuit during the voluntary transition to a self-governing treaty or other agreement. The rump department was meant to die on the vine as the Indian Act regime was phased out.
The services department would have no policy role, but would act under the fiscal and policy guidance of the minister of Aboriginal relations, who would allocate funds from the government’s total Aboriginal expenditures across the government.
The important caveat is that the services department would, in the words of the commission, be “expected to develop and implement the best practices possible for the support of the Indian peoples and Inuit and of communities using its services. It should not just be a bastion of the past.”
At first blush, the announced changes appear to vary with the RCAP view primarily in the continued inclusion of ‘northern affairs’ in the mandate of Crown-Indigenous Relations, and by the intention to transfer services currently delivered by other departments to the new services department.
In the view of the RCAP, the federal organizational structure must be able to conduct intergovernmental relations with provincial and territorial governments while avoiding some of the institutional conflicts of interest and other difficulties associated with past arrangements.
The important federal institutional capabilities identified by the RCAP included a capacity to develop and establish alternative dispute resolution mechanisms such as a Lands and Treaties Tribunal, and a centralized oversight capability within the federal cabinet structure to ensure that the practices of departments and agencies throughout the federal government conform to federal policy.
The creation of the new departments was meant by RCAP to fit within the overall recommendations for change including initiatives to launch the new relationship such as the issue of a new Royal Proclamation, a recommendation that was adopted by the Truth and Reconciliation Commission as one of its calls for action; the enactment of ‘nation recognition legislation’; and the creation of a Lands and Treaties Tribunal to perform the following functions: first to guide federal recognition of Aboriginal ‘nations’ to negotiate self-determination agreements or treaties, second to settle land disputes now dealt with by policy and the Specific Claims Tribunal, and third to assist the affirmation and negotiation of treaties and their implementation.
These initiatives to “turn the page” to a new relationship would be followed by initiatives to sustain and maintain the new relationship, and for this the leadership of the prime minister and the Privy Council Office were seen as crucial.
The responsibility for direct implementation of new federal initiatives should be assigned to the relevant departments and agencies of the federal government subject to monitoring by the minister for Aboriginal relations. The current proposal seems to take a different approach by switching health initiatives to the new services department.
The RCAP recognized the key role of the Cabinet in supporting the prime minister’s role in establishing and maintaining the new relationship by approving policy shifts to move away from the Indian Act, new mandates for renewal and negotiation of treaties and self-government accords.
RCAP expected a tendency for competing ministerial agendas to erode the momentum of Aboriginal policy development, and establishment of a focal point for collective responsibility should help sustain cooperation. Thus followed the recommendation for a Cabinet Committee on Aboriginal Relations, chaired by the minister of Aboriginal relations and having a dedicated secretariat within the Privy Council Office to enhance the ability to move issues through the cabinet.
To put the creation of the two departments into the context of relevant recent federal changes, it is noted that in February the Prime Minister created a working group of federal ministers to review laws and policies pertaining to Aboriginal matters, and in July announced a series of 10 principles identified as Principles Respecting Canada’s Relationship with Indigenous Peoples. These principles are announced as being informed by the United Nations Declaration on the Rights of Indigenous Peoples, on section 35 of the Constitution Act 1982, on the Truth and Reconciliation Commission’s Calls to Action, and on the RCAP reports.
A more complete foundation of principles would include international customary law and the recent Declaration on the Rights of Indigenous Peoples of the Organization of American States. The creation of the ministers’ working group deviates from the studied and complex RCAP analysis and recommendations on the structure and role of a permanent Cabinet committee that would ensure the implementation of a new relationship that must be led by the initiative of the prime minister and supported by the Privy Council Office.
The RCAP proposed that the minister of Aboriginal relations chair the Cabinet committee and “have the lead responsibility for managing the fiscal envelope related to Aboriginal affairs,” including “the authority to allocate funds from the federal government’s expenditures on Aboriginal issues and operations across the government.”
One speculates that the recent renaming of the department of Indian and Northern Affairs to Indigenous Affairs, a change without any obvious link to substantive policy or legal content, may be inspired by the belief that the switch may soothe misgivings about domestic standards by appealing to a term that is actually expressed in six different official languages at the United Nations.
The strong focus of course should be on the action that is compelled by these principles rather than upon the literary virtuosity of their expression.
It is time to move from talk to action.