Trudeau's words don't match early indicators on Indigenous rights framework: letter

Ottawa's plan to introduce legislation to enshrine Indigenous rights in federal law may be "dead on arrival," according to one of three authors who recently penned a letter to Prime Minister Justin Trudeau calling for a total reset of the process.

Mary Ellen Turpel-Lafond, now director of the University of British Columbia's Indian Residential School History and Dialogue Centre, said it's unclear whether it's possible to salvage the promised framework to recognize Indigenous rights that are affirmed in section 35 of the Constitution.

"It is extremely problematic as it appears to still be based on a rights-denying approach than a rights-recognizing approach," said Turpel-Lafond, a former B.C. judge and provincial children's advocate.

"The issue in the circles in which I discuss these matters is whether this is dead on arrival or whether it is going anywhere."

Turpel-Lafond signed a letter along with Wilton Littlechild, former commissioner with the Truth and Reconciliation Commission, and Ed John, grand chief of the First Nations Summit Task Group in B.C., that was sent to Trudeau on Aug. 21 calling for a reset of the process to create the framework.

The letter was drafted after an August meeting of Indigenous legal scholars on Musqueam First Nation territory in B.C.

The letter said the promised framework, based on information so far provided by Ottawa, would roll back Indigenous rights and falls far short of the words Trudeau used when he announced the initiative in February.

"From the viewpoint of reflecting existing human rights, treaties, constitutional law and international norms and principles, the process does not align with the commitment you described," said the letter.

On Feb. 14, Trudeau said in the House of Commons that in order to "truly renew the relationship between Canada and Indigenous people" Ottawa needed to "recognize and implement Indigenous rights."

Trudeau said this required a "a government-wide shift in how we do things."

'We want to get this right'

The framework is partly aimed at ending the constant litigation over Indigenous rights and the uncertainty it causes like in the recent Federal Court of Appeal decision on the Trans Mountain pipeline.

It also promises to provide a way for First Nations to govern themselves outside the Indian Act without having to go through decades-long self-government or modern day treaty negotiations.

The letter is now circulating among some chiefs who will be gathering in Gatineau, Que., beginning Tuesday at a forum hosted by the Assembly of First Nations.

Crown-Indigenous Relations Minister Carolyn Bennett responded on Sept. 7 with a letter and an "overview" document laying out Ottawa's thinking following 102 "engagement sessions" with 1,600 participants across the country over the last five months.

"We want to get this right, and with your help, I know we can," wrote Bennett.

Department under pressure to release document

The overview document includes sections summarizing input from the engagement sessions and the government's "potential approaches."

Turpel-Lafond said the government's document failed to address the issues raised by the letter.

"It has tweaked a fear that somehow this initiative has become a retrograde instead of a progressive initiative," said Turpel-Lafond, a member of the Muskeg Lake Cree Nation.

"Their response was deeply inadequate."

Bennett said in an interview that her department was "under a little bit of pressure" to release something before the chiefs met. She said it is merely an "engagement document" meant to elicit discussions.

"We are listening to all the possible ways that Canada can get out of the way," she said. 

'We need a new doctrine'

One of the core problems in the document being cited by critics stems from a proposed process where Ottawa still plays a key role in recognizing Indigenous nations. It also suggests a nation's ability to exercise its authority would still require agreements with Ottawa, the provinces and territories.

Paul Chartrand, a former commissioner from the Royal Commission on Aboriginal Peoples, said it appears Ottawa is still operating under the idea that the ability for an Indigenous nation to self-govern flows from federal authority.

"Section 35 is a political consensus in Canada that the rights of Aboriginal peoples are affirmed and recognized, that includes the affirmation or recognition of the inherent authority of Aboriginal people to govern themselves," said Chartrand, who is Mé​t​is and a retired law professor.

He said Ottawa is still also pushing its "hackneyed old line on jurisdiction" which is mired in the debate over federal and provincial jurisdiction.

"What we are talking about is a unique constitutional and political relationship between Aboriginal peoples and Canada... We need a new doctrine of that relationship," said Chartrand, who also helped develop the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).

Chartrand said that UNDRIP should also be the framework for the framework "so it covers the field."

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Bennett said the government would like to table the framework before Christmas so it can receive "robust" parliamentary scrutiny in the spring, but timelines are not "set in stone."

Turpel-Lafond said Ottawa needs to get this right because the stakes are so high.

"It's important statecraft and this is an important part of what they promised they could address and it's not going away," she said.

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