Indigenous Rights Framework

June 1, 2018

 

“As we enter the next 150 years of Canada, we will write our future together in partnership with First Nations, Inuit and Métis… We invite all Canadians to work to better understand the damage done by our colonial past and join us in the journey of reconciliation.”
—The Honourable Carolyn Bennett, Minister of Crown-Indigenous Relations and Northern Affairs

Recommendations for the “Recognition and Implementation of an Indigenous Right Framework”  ©George and Terry Goulet

The major priority of the “Recognition and Implementation of an Indigenous Rights Framework” (Rights Framework) must be to eliminate the Government’s current colonial discriminatory laws and governance and to replace them with laws, policies and procedures that respect and honour the Indigenous rights of each of the First Nations (Indian) Peoples, the Métis Peoples, and the Inuit Peoples. Day to day functioning of governance must be built on: (i) compliance with the Canadian Constitution and relevant Supreme Court of Canada (SCC) decisions on Indigenous matters; and (ii) inclusion of the spirit and intent of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). References herein are made to our Paper dated April 14, 2018 titled “Requirements for Recognition and Implementation of Indigenous Rights Framework” (Framework Requirements Paper). This Paper provides only some of the necessary Indigenous matters that need to be included in the Rights Framework.

1. Reports and Papers on Indigenous Hearings, Conferences and Consultations:

Over the past number of years there have been Government conferences, hearings and consultations on Indigenous matters that have produced reports and papers that should be reviewed with respect to the Rights Framework. Among these are the 1996 “Report of the Royal Commission on Aboriginal Peoples”; the 2015 “Truth and Reconciliation Commission Final Report”; and the 2013 Report of the Standing Senate Committee on Aboriginal Peoples titled “The People Who Own Themselves: Recognition of Métis Identity in Canada”. The majority of conclusions contained in these Reports have never been implemented. In addition the conclusions in these Reports must be tempered by the fact that the hearings and reports largely functioned under the Government’s “exclusive representation policy.” Consequently many of the very good conclusions must be re-evaluated as to their applicability to each of the First Nations (Indian) Peoples, all Métis Peoples and all Inuit Peoples.

2. Fiduciary Duty:

With respect to fiduciary duty in the Rights Framework, an important source for guidance is the 2002 revised Parliamentary Paper titled “The Crown’s Fiduciary Relationship with Aboriginal Peoples.”

3. Indigenous Identity:

In addition to the matters set forth in section 6 (Individual Rights) in our Framework Requirements Paper, there are many discriminatory Indigenous identity issues that must be reviewed: (a) Over the years, policies and procedures have robbed individuals of Government recognition of their Indigenous identity and rights. Some relevant unjust and, at times unscrupulous, policies and procedures relate to: (i) military service in the Great Wars and Korean War; (ii) incorrect interpretation of the 2003 Powley SCC decision resulting in restriction of recognition of Indigenous ancestry to a limited geographical area with respect to Métis identity; (iii) sexual discrimination for marrying-out and sexual discrimination when marrying in; (iv) foster care; (v) adoptions; (vi) discrimination based on sexual or racial identity; (vii) non-reserve residency; (viii) urban versus rural residency; (ix) deficiencies and errors in birth registries, census taking and other means of citizenship identification; (x) failure to register births either in Canada or outside of Canada within a specific time span; (xi) loss or destruction of birth certificates and other means of self-identification; (xii) dual Indigenous status; and (xiii) non-European ancestry such as Kanakas or Asian. (b) The Government has wasted millions of dollars in incomplete and inaccurate Indigenous registries that have resulted in useless and inaccurate records. In addition the Government has wasted millions of dollars fighting Indigenous individuals and communities who have litigated for basic Indigenous recognition and rights. (c) The core component of the Government’s replacement policies and procedures for recognition of Indigenous identity must be inclusiveness.

4. Recognition of Constitutional Principles for Each Aboriginal Class:

In addition to the matters set forth in section 4 (Constitutional Principles) in our Framework Requirements Paper all governance principles must be applied equally to each of the Métis Peoples, First Nations (Indian) Peoples, and the Inuit Peoples.

The Government must discontinue its current colonial policies with respect to preferential treatment. Recent examples of the Government’s failure in this respect are: (i) not including Métis and Inuit in the Government’s proposed Sixties Scoop Settlement (SSS); (ii) failure to provide a fair and equitable settlement to the SSS litigants compared to the Government’s settlement of non-Indigenous cases such as the Khadr Case; (iii) failure to provide exoneration to Louis Riel while granting it to other Indigenous heroes.

5. Recognition of Indigenous Communities and Organizations:

In addition to the matters set forth in section 7 (Community Rights) in our Framework Requirements Paper all Government recognition and application of rights must be applied equally to each of the communities and organizations within each class of Aboriginals – the Inuit, the Métis, and the First Nations (Indian) Peoples. Many, perhaps a majority, of Indigenous Peoples are not represented under the current “exclusive representation” policy of the Government.

Among other matters the Government’s preferential policies and procedures have resulted in (i) failure to provide equal recognition of Indigenous identity and membership in communities and organizations; (ii) denial of appropriate core funding; (iii) denial of equal access to programs, services and intangible benefits recognized by all governments as needed; (iv) impairment to many Indigenous communities; and (v) denial of equal representation “through representatives of their own choice” in relevant hearings, conferences, and consultations by the Government with the Aboriginal Peoples. Consequently the Rights Framework must make massive changes in the structure of the Government’s policies and procedures with respect to all areas of governance of Indigenous communities and organizations whether or not they represent Inuit, Métis, or First Nations (Indian) Peoples of Canada.

6. Indigenous Justice System:

There must be included in the Rights Framework a program of reform and revision in order to significantly improve the justice system with respect to Indigenous Peoples. Some relevant recommendations would include: (i) establishment of an Indigenous Court System; (ii) effective utilization and compliance with the Human Rights Commission, and arbitration rather than courtroom litigation; (iii) recognition of Indigenous injured party rights within the court system; (iv) improved legal and judicial education on Constitutional law and Indigenous law; (v) larger Indigenous jury panels and the elimination of peremptory challenges in the court system of Canada; (vi) reforms to security and policing systems to recognize Indigenous rights; (vii) reforms to prison systems to recognize Indigenous rights; and (viii) all Indigenous prisoner rehabilitation programs must have appropriate Indigenous centered programs.

7. Supreme Court of Canada Indigenous Decisions:

There must be included in the Rights Framework government guidelines with respect to present and future Supreme Court of Canada (SCC) decisions on Indigenous Matters. Examples are: (i) the need for coordination between the Justice Department and all Government Departments (particularly Indigenous departments) to ensure that each department is informed of the SCC decisions; (ii) proper interpretation is included with the notification; and (iii) to ensure the immediate implementation of such properly interpreted SCC decisions.

8. Importance of Correct Interpretation of Indigenous Law:

The significance of correct interpretation of Constitutional Indigenous law is seen in the Government’s handling of the 2003 SCC Powley decision. The incorrect interpretation applied by the Government, the Métis National Council and its five Provincial affiliates was that the Powley SCC decision provided the definition for Métis identification of all Métis Peoples. This incorrect interpretation of Métis identity has caused significant damage to the rights of innumerable Métis. The SCC decision in the Daniels decision corrected this misinterpretation by setting aside the Powley criteria as a requirement under s. 91(24) of the Constitution for Indigenous identification of Métis and non-status Indians.

9. Necessities of Life:

The primary Indigenous responsibility of the Government is to ensure that all Indigenous Peoples – the First Nations (Indian) Peoples, Métis Peoples, and the Inuit Peoples are provided with the necessities of life. The basic necessity of life is sustainable development with water at its core. The internationally accepted pillars of human well-being are beneficial economic conditions, socio-political and ecological/environmental conditions. Among other responsibilities, the immediate duty and obligation of the Government are to ensure that all Indigenous Peoples of Canada are equitably provided with (i) safe drinking water and basic sanitation; (ii) safe and appropriate housing; (iii) affordable and available food; (iv) free medical and dental care and medication; and (v) education. The responsibility for funding to provide these essential services is fully that of the Federal Government. The Government must limit foreign funding and contributions to foreign programs until the Government has discharged its duties and responsibilities with respect to the many Indigenous Peoples who are living in Canada under third world conditions.

10. Uniqueness of all Indigenous Peoples:

The major factors that make the Métis Peoples, the Inuit Peoples and the First Nations (Indian) Peoples unique are their respective distinct histories, heritages and cultures. Each of these Indigenous Peoples has the right to practice and revitalize their distinct cultures, traditions, histories and heritages. History, heritage and culture is the lifeblood of the Indigenous Peoples. Consequently this requires the Government to ensure that these matters are given the highest priority in the Rights Framework in order to provide equal recognition and funding for all of the diverse segments within each of these Nations. This must be a dominant responsibility of the Canadian Government in order to preserve, nourish and disseminate the history, heritage and culture of each of the Inuit, Métis and First Nations (Indian) Peoples.

11. Divergence of Indigenous Goods and Services:

In determining the Government’s responsibilities for the implementation and delivery of goods and services to each class of Indigenous Peoples, consideration must be given to such divergent needs and factors as: (i) rural versus urban; (ii) northern versus southern; (iii) on residency versus off -residency whether reserve, settlement or community.

12. Canadian History:

In order for Canada’s history to be factual, it is essential that it is rewritten to change its colonial point of view to that which includes the significant contributions of Indigenous Peoples in the formation of Canada as a nation. The Government’s role in correcting history must: (i) include information on Indigenous Peoples that explains that they are all rights-bearing Peoples under both s. 35 of the Constitution of Canada 1982 and s. 91 (24) of the Constitution of Canada 1867; (ii) be respectful of Indigenous factual historical and cultural matters; (iii) include differences among various Indigenous Peoples from coast to coast to coast; (iv) include historical information on the illegal and inappropriate governance and treatment of Indigenous Peoples; (v) have an inclusive rather than an exclusive approach to all Indigenous matters; (vi) have all costs of correcting this history borne by the Government; and (vii) provide and distribute copies of this revised Canadian History to all educational and training facilities across Canada from coast to coast to coast.

13. Education and Training:

The Government’s management of Indigenous Education and training falls under one of the following categories: (i) having full jurisdiction with respect to Indigenous Schools, Institutions, and Scholarships; (ii) having joint jurisdiction with other levels of Government; or (iii) having joint jurisdiction with a third party institution. No matter which category the education is being delivered under, each Indigenous child has the right to (i) quality of education and training equal to non-Indigenous children; (ii) recognition of his or her distinctiveness as First Nations (Indian), Métis, or Inuit; and (iii) equal opportunity for education and training regardless of Indigenous ethnicity. Consequently Indigenous funding of education and training must be an essential element of the Rights Framework.

14. Indigenous Consultations:

In addition to the matters set forth in section 7 (Community Rights) in our Framework Requirements Paper with respect to all meetings, hearings, conferences and consultations on Indigenous matters, other considerations of the Rights Framework must include: (i) the Government must not abdicate its responsibility with respect to holding Indigenous consultations to third parties, especially those representing commercial interests; (ii) requirement that both sides of an issue are fairly represented and allowed equal presentation rights in the Indigenous consultation process; (iii) Indigenous People have the right to ask any and all questions they have on the issues under consideration; (iv) the questions must be answered truthfully and without avoidance; and (v) no improper inducements must be made to Indigenous individuals, Indigenous communities, members of the Government, political parties, or other third parties with respect to the matters under consideration.

15. Government’s Administration of Indigenous Matters and Constitutional Requirements:

In addition to the matters set forth in section 8 (Administrative Reforms) in our Framework Requirements Paper, there are many significant Government administration matters that indicate the present systems needs major review and restructuring. The Government is at fault in not closely monitoring their present systems and procedures with respect to distribution and delivery of goods and services as there are many instances where they do not reach the local community level and the Indigenous individuals living there. The following provides a starting point for this restructuring of the Government’s administration under the Rights Framework (a) The establishment of separate Government offices for Indigenous Peoples in each of the major cities, and in each of the Northern and Southern areas of the larger Provinces and Territories to locate administration of Indigenous matters away from the ivory towers of Ottawa to the local and community level. (b) Since many of the Indigenous programs and services are the jurisdiction of Government Departments (as well as the departments designated as Indigenous) there must be an Inter-Departmental Administration for the delivery of Indigenous goods, services and programs which requires immediate review and restructuring. This includes unnecessary wasteful government duplication of procedures, rules and regulations particularly with respect to recognition of rights, applications and approval of programs and services. (c) The handling of third party management of Indigenous communities requires immediate attention and restructuring. (d) Emphasis must be placed on educating and training each and every person within or associated with the Government of Canada with respect to Indigenous rights, history and culture, and the Government’s duties and obligations to eliminate discriminatory colonial measures and replace them with policies and procedures that provide fair and equitable treatment to each of the Métis, First Nations (Indian) and Inuit Peoples.

16. Inter-Federal, Provincial and Territorial Constitutional Responsibilities:

In Canada the Federal, Provincial or Territorial, and Municipal Governments are levels of Government with various specific responsibilities. Nevertheless each and every level of Government is subject to and must be in compliance with the Canadian Constitution and SCC decisions dealing with constitutional Indigenous rights. Over the years the Federal and Provincial Governments positions and their “political football – buck passing” practices have produced a large population of collaterally damaged Métis, non-status Indians, and Inuit individuals who have been deprived of programs, services and intangible benefits recognized by all governments as needed. The 2016 SCC Daniels decision definitively ruled that the Constitutional responsibility for Métis and nonstatus Indians is that of the Federal Government, not the Provincial Governments. The Rights Framework must fulfill its constitutional responsibility with respect to creation and delivery of meaningful Indigenous programs, services and intangible benefits that are under both the Federal and Provincial jurisdictions. This is necessary in order that each of the Federal and Provincial levels of Indigenous governance is: (i) in compliance with its own responsibilities under the Constitution and SCC decisions dealing with Indigenous matters; and (ii) guided by and follow the principles set forth in UNDRIP. Certain areas of concern are (i) equality of rights for each of the First Nations (Indian) Peoples, the Métis Peoples, the Inuit Peoples; (ii) equality of recognition of Indigenous individuals and Indigenous communities within each of the Métis, First Nation (Indian) and Inuit Peoples; (iii) the Province’s responsibility for equal delivery of goods, services and intangible benefits such as health, education and welfare; (v) the funding responsibility of the Federal Government with respect to contributions to the Provincial delivery of programs, services and intangible benefits to each of the Inuit, Métis, and First (Indian) Nations; and (vi) the Provinces’ responsibility to eliminate all colonial Indigenous discrimination from their laws, policies and governance.

17. Preparation of the Rights Framework:

It is essential that all individuals who are responsible for the preparation and approval of the Government’s Rights Framework are carefully chosen. For over 17 years the Government fought tooth and nail against the recognition of Indigenous rights (the Daniels Case), and for two years subsequent to the SCC decision in this Case, it has failed to properly interpret and implement that decision. It is imperative that the Government promptly produce a judicious, logical and equitable Rights Framework. The preparation and completion of the Rights Framework must be done by staff, consultants, and Indigenous representatives who are knowledgeable and capable of properly interpreting constitutional laws, Indigenous rights, culture and history, and determining methods of equitable governance for each of the First (Indian) Nations, the Métis Nations, and the Inuit Nation.

18. Government’s Discrimination Against Advocates and Activists for Indigenous Rights:

The Government muxst take immediate measures to stop the Government’s continued discrimination against certain individuals and groups who are advocates and activists with respect to Indigenous rights and issues. Examples of the discrimination and, in certain instances. unscrupulous behaviour towards advocates and activists for Indigenous rights include treatment of: (i) Cindy Blackstock; (ii) Harry Daniels; (iii) Pam Palmeter; (iv) l’union national métisse Saint-Joseph du Manitoba; (v) certain foster parents of Indigenous children in care; (vi) Kelly Lake Métis Settlement; (vi) Métis historians; and (vii) other individuals, organizations and institutions that have, over the years, advocated and been activists for Indigenous Rights.

19. Respect and Honour Advocates and Activists for Indigenous Rights:

Reconciliation of the Government with the Indigenous Peoples demands action by the Government to recognize, honour and respect Indigenous individuals who, over the years, have fought for Indigenous rights. An example would be to implement the exoneration of Louis Riel (not only for his activism in fighting for basic human rights but also for his unjust, unfair, and unlawful trial and execution) and to name Riel as a Father of Confederation.

20. NOTE: This Paper is not all-inclusive and provides only a number of the issues that need to be built into the Rights Framework. In addition the structure of the Rights Framework needs flexibility as further Indigenous matters become evident as the process of preparation and implementation proceeds. This flexibility must extend to the proper interpretation and implementation of future relevant Supreme Court of Canada (SCC) decisions on Constitutional Indigenous issues.
21. IMPLEMENTATION OF RIGHTS FRAMEWORK: Unless the Rights Framework is promptly implemented into the Government’s day to day operations and governance, it will only result in the shelving of another study that studied a previous study. It will take strength, courage and perseverance on the part of the Government to change the mindset towards the Indigenous Peoples of Canada from that, frequently, of a despotic colonial bureaucracy to that of a lawful, benevolent democracy.

© George and Terry Goulet – April. 20, 2018