With so many of us working remotely, the June issue of BarTalk is a digital-only issue. Watch for our next print issue in October. 

Rights Recognition

Admitting denial is 50% of the way

Rights Recognition

 

... The government will develop – in full partnership with Indigenous peoples – a new Recognition and Implementation of Indigenous Rights Framework (“RRIF”) that will include… recognition and implementation of rights legislation.

The federal government’s absence over generations in recognizing and implementing Indigenous rights has resulted in social and economic exclusion, uncertainty, and litigation – when our shared focus should have always been on creating prosperity and opportunity for everyone.

It will be worth it because we will have replaced apathy with action, ignorance with understanding, and conflict with respect…

       PM Trudeau, February 14, 2018

No person denies that those beautiful words are powerful, hopeful and ambitious. In 2009, similar words left Premier Campbell’s lips, giving BC First Nations buoyed hope for Title and Rights affirmation and an end to the consultation war.

Industry naysayers feared that the sky was falling and more than one lawyer raised tsunami/floodgate arguments.

BC’s efforts failed on August 28, 2009 when Grand Chief Ed John declared the legislation “dead.” Dramatic ending. Of course, there are many opinions on the victim’s cause of death. Chief among them delivered by Grand Chief Stewart Phillip was that the Crown could not move beyond a “denial of rights; outdated legal barriers and archaic colonial attitudes within the bureaucracy.”

Is history about to repeat itself?

It is touch and go for this patient also.

Engagement led by Minister Bennett of CIRNA was neither meaningful nor substantive. The Minister did a cross-country road show with a shiny questionnaire and produced “What we heard” reports and overview documents. The documents indicate that they didn’t listen and have no commitment to legal change.

Thankfully, consultation is a two-way street and BC First Nations have a potent competency for proactive engagement. First Nations Leadership Council held three All Chiefs meetings and developed an impressive set of rolling draft Recommendations and Principles and Legislative Draft Instructions. BC First Nations are leading a minority of Indigenous leaders and concretely engaging the RRIF. It may be in vain.

There was an agreement between Indigenous peoples and the Prime Minister on legal reform and “genuine” constitutional partnership, but we are nearing a fundamental breach. There is massive gap between the substantial submissions of First Nations challenging the status quo and the impoverished defence of rights denial.

Minister of Justice, Jody Wilson-Raybould on April 13, 2018 stated:

Through the recognition and implementation of rights framework, the work of government will shift from processes primarily focused on assessing whether rights exist – which inevitably is adversarial and contentious – to seeking shared understandings about how the priorities and rights of Indigenous peoples may be implemented and expressed within a particular process, and its outcome. This shift – supported by legislative measures that help build trust that government will act according to certain transparent standards in doing this – will help create opportunities for collaboration and reduce the intensity of conflict.

Certainly, any reasonable person hearing those words would invest some hope on change. Consider for a moment the value of legal certainty where Indigenous peoples and governments accept legal obligations. Consider how this legal certainty might deliver countless resource development projects because we know what is required and rise to the occasion.

Instead, we have the status quo. The status quo in chronological form is: (1) rights assertion; (2) rights denial; (3) rights admission; (4) meaningless consultation, when it should be meaningful and (5) consultation failure.

Imagine the chronology that started with: (1) rights affirmation…