Engagement document: Working together to create the foundation for the Federal Recognition and Implementation of the Inherent and Treaty Rights of Indigenous Peoples in Canada
"Reconciliation calls upon us all to confront our past and commit to charting a brighter, more inclusive future. We must acknowledge that centuries of colonial practices have denied the inherent rights of Indigenous peoples. The recognition and implementation of Indigenous rights will chart a new way forward for our government to work with First Nations, Inuit, and Métis peoples and to undo decades of mistrust, poverty, broken promises, and injustices. We have listened and learned and we will work together to take concrete action to build a better future and a new relationship."
-Prime Minister Justin Trudeau
February 14, 2018
The Government of Canada is committed to reconciliation and a renewed relationship with Indigenous peoples based on the recognition of rights, respect, co-operation, and partnership.
The framework is intended to chart a new way forward for the government to work with First Nations, Inuit, and Métis peoples and to undo decades of mistrust, poverty, broken promises, and injustices. The government has listened and learned, and is committed to continuing to work together to take concrete action to build a better future and a new relationship.
This discussion paper is intended to capture the issues and recommendations presented to the government by First Nations, Inuit, and Métis peoples during the engagement over the past months. It is now important to share the Government of Canada's understanding of the advice received on the possible ways forward. This discussion paper outlines new tools the government is considering that could:
- Ensure the recognition and implementation of rights is the basis for all relations between the Government of Canada and Indigenous peoples
- Support the self-determination of Indigenous peoples
- Ensure the Government of Canada remains accountable for its obligations towards Indigenous peoples
Part one of this discussion paper outlines new tools that could be included in legislation to ensure that the Government of Canada respects constitutionally-protected Indigenous rightsNote de bas de page 1 and supports the self-determination of Indigenous peoples.
Part two of this discussion paper outlines new tools that could be included as part of a new policy to replace existing policies like the Comprehensive Land Claims Policy (1986) and the Inherent Right Policy (1995) with new and better approaches.
Progress to date
A Recognition and Implementation of Indigenous Rights Framework
On February 14, 2018, the Prime Minister announced that the Government of Canada will develop, in full partnership with First Nations, Inuit, and Métis peoples, a Recognition and Implementation of Indigenous Rights Framework (the framework).
The framework is intended to include a collection of legislative and policy instruments that will ensure that the recognition and implementation of Indigenous rights is the basis for all relations between the Government of Canada and Indigenous peoples. The framework could also include new measures to support the rebuilding of Indigenous nations and collectives, and advance Indigenous self-determination. Respect for provincial and territorial jurisdictions will also be a key element of this work.
The framework is meant to accelerate the work already begun to renew the nation-to-nation, Inuit-Crown, and government-to-government relationship between Canada and Indigenous peoples based on the recognition of rights, respect, co-operation, and partnership.
Since February 14, the Minister of Crown-Indigenous Relations and Northern Affairs has held 89 engagement sessions across the country with First Nations, Inuit, and Métis peoples and communities.
A What We Heard So Far document has been released to provide a snapshot of the input received so far, and support further discussions on what could comprise the framework. For more information on the engagement, including summaries of what has been heard to date, visit National engagement on the recognition and implementation of Indigenous rights.
- 89 sessions held
- 1326 total participants
- over 184 letters received in correspondence
- 19 Elder groups
- 646 women have participated
- 25 youth and student groups
The Government of Canada believes that First Nations, Inuit and Métis peoples must continue to be included in any legislative or policy development processes that are about them. In the summer of 2018, the government will continue its discussions with First Nations, Inuit and Métis on the development of a new approach which will aim to make the recognition and implementation of rights the basis for all relations between the Government of Canada and Indigenous peoples.
This discussion paper outlines new tools the government is considering based on the advice heard throughout the national engagement. These tools align with the government's commitments to the United Nations Declaration on the Rights of Indigenous Peoples and section 35 of the Constitution Act, 1982, and are informed by the Truth and Reconciliation Commission's Calls to Action, as well as the Principles Respecting the government's Relationship with Indigenous peoples. The intent is to work within the parameters of the Constitution and ensure constitutionally-protected Indigenous rights are implemented. A full overview of the feedback and recommendations received is provided in the related what we Heard document.
The government is seeking feedback on the proposed approach so that the Government of Canada can bring forward a comprehensive suite of changes this fall.
Moving forward towards reconciliation and a renewed Crown-Indigenous relationship will require an ongoing commitment to collaborative approaches. This will mean working in partnership with Indigenous peoples, cooperating with provincial and territorial governments, and engaging industry, other stakeholders and all Canadians.
The framework will:
- keep the Government of Canada accountable
- create new tools and mechanisms for supporting self-determination
- support distinctions-based approaches
- advance the implementation of treaties and agreements
The framework will not:
- define and limit the rights of Indigenous peoples
- create municipal-style governments
- preclude Indigenous peoples from pursuing other opportunities to advance their priorities
- extinguish rights or seek the cession, release or surrender of rights
- impose solutions
Part one: Recognition and implementation of Indigenous rights legislation
This section outlines new tools that could be included in legislation to ensure that the Government of Canada respects constitutionally-protected Indigenous rights and supports the self-determination of Indigenous peoples.
The purpose of the legislation could be to:
- Purpose 1: Ensure the recognition and implementation of rights is the basis for all relations between the Government of Canada and Indigenous peoples
- Purpose 2: Support the self-determination of Indigenous peoples
- Purpose 3: Ensure the Government of Canada remains accountable for its obligations towards Indigenous peoples
Purpose 1: Ensure the recognition and implementation of rights is the basis for all relations between the Government of Canada and Indigenous peoples
Indigenous rights were recognized and affirmed by section 35 of the Constitution Act, 1982. However, the government has not taken comprehensive proactive measures to ensure its policies, legislation and actions recognize these rights. Since then, communities and experts have called for a legislative approach to ensure the government acts in a way that is consistent with Indigenous rights. For example, the Royal Commission on Aboriginal Peoples determined that legal recognition is essential to rebuilding strong, self-determining Indigenous nations that govern themselves for the benefit of their communities.
As part of the legislation, new tools for the Government of Canada to ensure the recognition and implementation of Indigenous rights will form the basis for all relations with Indigenous peoples could include:
- Require that the Government of Canada recognize that Indigenous peoples have inherent and treaty rights, including the right to self-determination
This would recognize that First Nations, Inuit and Métis peoples continue to have inherent and treaty rights, as recognized and affirmed by section 35 of the Constitution Act, 1982. This could also recognize that First Nations, Inuit and Métis peoples have the right to self-determination and, in doing so, establish processes and a legislative basis for the recognition of Indigenous nations and collectives.
The right for Indigenous communities to determine their own system of governance could also be recognized in legislation rather than as a matter of policy, which is currently the case. The legislation could recognize that Indigenous peoples have the right to exercise jurisdiction and law-making authority over many aspects of their communities and lands, and could be part of overhauling current antiquated policy approaches towards self-determination.
Where intergovernmental arrangements are necessary to effectively implement jurisdictional and law-making authority, the legislation would require the Government of Canada to participate in negotiations to recognize and implement the Indigenous jurisdictions. Provincial and territorial jurisdictions will be a key consideration in this context.
- Recognize that the Government of Canada is obligated to implement Indigenous rights in a manner which upholds those rights, and spirit and intent of agreements signed with Indigenous peoples, as well as the honour of the Crown
This could recognize that implementation of rights is critical to advancing reconciliation and renewing the relationship between the Crown and First Nations, Inuit and Métis peoples, and that it is the responsibility of the Government of Canada to act in an honourable and meaningful way.
- Recognize that Indigenous peoples have inherent rights to land and, in some cases, have title within their traditional territories which may encompass federal Crown lands
This could require the Government of Canada to participate in negotiations and develop constructive arrangements to implement the economic and jurisdictional components of the inherent Indigenous rights to land, which could include title. Constructive arrangements to address areas of federal jurisdiction could include co-management, shared decision-making, compensation, restitution, economic opportunities, and revenues sharing.
- Amend the federal Interpretation Act to add a universal non-derogation clause
A universal non-derogation clause could ensure that all laws are interpreted in alignment with section 35 of the Constitution Act, 1982. Currently clauses like this exist in numerous pieces of legislation, but this new legislation could ensure that there is consistency going forward.
Purpose 2: Support the self-determination of Indigenous peoples
Indigenous peoples have expressed a widespread desire to self-determine their path forward based on their legal traditions, practices and systems of governance. The Government of Canada's role in advancing self-determination is to enable, support, and partner with First Nations, Inuit, and Métis peoples – to provide the tools they need as they chart a path forward for their communities and to create space for their governments and institutions.
Indigenous peoples have expressed, and the Government of Canada supports, their desire to determine how they wish to be represented and governed, thereby displacing the colonial and paternalistic federal approaches of the past. The government envisions legislation that would create the space for First Nations, Inuit, and Métis peoples to develop or rebuild their systems of governance based on their legal traditions, practices and systems of governance.
As part of the legislation, new tools to obligate the Government of Canada to support self-determination could:
- Create a legislative mechanism for the Government of Canada to recognize Indigenous nations and collectives and the structure and authorities of their governing bodies
This could establish processes for the Government of Canada to recognize Indigenous nations and collectives.
Recognized Indigenous nations and collectives and their respective governing bodies could become legal entities within federal legislation. The structure and authorities of these governing bodies could immediately determine:
- who is part of the nation or collective
- the nature, structure, composition, and functions of the governing body
- rules and procedures for the selection of members of a governing body
- conflict of interest rules and procedures for a governing body
- rules and procedures for enacting laws
- system of financial management and accountability
- rules and procedures for holding meetings of the governing body
- process for amending of a constitution
- ability to delegate powers or responsibilities of the governing body to another entity
- law-making authority respecting areas integral to the nation or collective's identity, culture and language
For First Nations specifically, this could present a new pathway to displace the governance provisions contained within the Indian Act, at a time and pace of their choosing.
- Recognize and operationalize Indigenous jurisdictions
This could establish processes to recognize and give effect to Indigenous jurisdictions. In order to accelerate the progress to self-determination, negotiations could be geared towards the conclusion of treaties, agreements, arrangements, or any other instrument to support Indigenous nations and collectives in achieving goals for governance. Bilateral negotiations could occur in relation to subjects falling within the Government of Canada's constitutional jurisdiction. Provincial or territorial governments would need to be partners for any subject that falls within their jurisdiction.
Purpose 3: Keeping the Government of Canada accountable
Indigenous rights must be implemented honorably. This includes Indigenous rights that have been identified in law or policy in Canada and those that could be identified in the future. In some instances, these rights have been described in treaties and self-government agreements between the Crown and Indigenous peoples. New tools and mechanisms are required to keep the Government of Canada accountable in implementing these rights.
As part of the legislation, new tools to give effect to the Government of Canada's recognition that Indigenous rights be implemented honourably and purposefully could:
- Establish an independent oversight body.
This could establish a process to create an independent oversight body to ensure that the Government of Canada fulfills its obligations and responsibilities towards the implementation of Indigenous rights.
The independent oversight body could report directly to Parliament and be mandated to monitor and report on the Government of Canada's progress on implementing Indigenous rights and the United Nations Declaration on the Rights of Indigenous Peoples. This body could also undertake public education activities on Indigenous rights.
- Establish an independent dispute resolution mechanism or body.
This could establish a process to create an independent dispute resolution mechanism or body that could support the collaborative resolution of issues relating to the recognition and implementation of Indigenous rights.
It could provide support for disputes between the Government of Canada and Indigenous groups. This mechanism or body could also be used on a voluntary basis by provinces and territories, or by Indigenous groups.
Part two: Policy
In response to widespread calls for change, the prime minister announced on February 14, 2018 that the Government of Canada would replace policies like the Comprehensive Land Claims Policy (1986) and the Inherent Right Policy (1995) with new and better approaches that fully embrace and give life to section 35 of the Constitution Act, 1982. This section outlines new tools that could be included as part of a new policy.
Building on what the Government of Canada has heard to date, new policy could have five key objectives:
- Provide for the implementation of Indigenous rights through negotiated agreements
- Achieve agreements that provide predictability and include an orderly process for evolving arrangements and agreements over time
- Achieve flexible agreements that support nation rebuilding, self-determination, and the implementation of rights as an alternative to or in advance of a comprehensive agreement
- Accelerate the pace of negotiations
- Work towards equity in socio-economic outcomes and overall well-being between Indigenous peoples and other Canadians
A new policy could serve to implement some of the tools outlined as part of the legislation in Part one and advance reconciliation with Indigenous groups through the recognition and implementation of rights.
Process for establishing negotiation tables
Processes for establishing negotiation tables to implement Indigenous rights would need to be sufficiently flexible to accommodate the distinctions amongst First Nations, Inuit, and Métis peoples. Indigenous groups wishing to establish negotiation tables with the Government of Canada could submit information to the Minister of Crown-Indigenous Relations and Northern Affairs demonstrating that they represent a rights-bearing Indigenous nation or collective.
Under the proposed approach, Indigenous nations and collectives who are already participating in negotiation processes would not need to re-apply to establish a negotiation table under the new policy. Bridging mechanisms could support Indigenous nations and collectives to transition to the new policy should they wish to do so.
Given the number of active negotiations in British Columbia, Indigenous nations and collectives there could continue to apply to the British Columbia Treaty Commission to establish negotiation tables. In such a case, the Government of Canada would respect the decisions of the Treaty Commission.
The Government of Canada will continue to negotiate agreements that recognize and implement Indigenous rights.
In 2015, with the establishment of Recognition of Indigenous Rights and Self-Determination discussions, the Government of Canada started meeting with Indigenous groups to explore what the vision of self-determination looks like for their respective communities, and how Canada can implement rights to make that vision a reality. Through these discussions, the Government of Canada has started from the premise that the existing, inherent rights of Indigenous peoples are recognized. Mandates and process have been developed collaboratively with the goal of implementing rights. Negotiations going forward, through this policy, will build off of this approach.
The agreements will also seek to address shared interests and priorities. Under the proposed policy approach:
- Canada will continue to co-develop negotiation mandates with Indigenous partners based on shared-interests. While this process is currently done through Recognition of Indigenous Rights and Self-Determination discussions, this commitment will be extended across government.
- Negotiation mandates could target various types of agreements, such as treaty and non-treaty agreements, incremental agreements, sectoral agreements, comprehensive agreements and governance agreements.
- Provincial and territorial governments will be essential partners where matters fall within their areas of jurisdiction.
The Government of Canada remains committed to working with Indigenous peoples to implement Indigenous rights. Agreements are meant to establish a pathway for the implementation of rights and relationships based on the recognition of rights, respect, co-operation and partnership.
- Inherent and treaty rights that are recognized and affirmed by section 35 of the Constitution Act, 1982, are recognized at the outset. Negotiations could focus on how these rights will be implemented.
- Certainty techniques that have resulted in the extinguishment of Indigenous rights would be off the table under the proposed policy approach.
- "Living agreements" could enable the continuation of rights within and outside of agreements, with periodic reviews to provide an orderly process for the evolution of agreements where needed and where desired by Indigenous groups.
- Practical approaches could be introduced to recognize and implement interests in and title to lands.
- The policy could operationalize governance-related aspects of the legislation.
- Bridging mechanisms could be included to support Indigenous groups in negotiations to transition to new policy approaches, if requested.
- Funding support for negotiations would continue to be provided via contribution funding and not loans.
Implementation of treaties, agreements and other arrangements
The policy could seek to implement agreements in accordance with the United Nations Declaration on the Rights of Indigenous Peoples, which speaks to the right of Indigenous peoples to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements. The policy could also align with principle #5 of the Principles Respecting the Government of Canada's Relationship with Indigenous Peoples, which states that the Government of Canada recognizes treaties, agreements, and other constructive arrangements between Indigenous peoples and the Crown as acts of reconciliation based on mutual recognition and respect.
Honourable implementation of agreements could ensure that the rights of First Nations, Inuit and Métis peoples are recognized and affirmed.
- The policy could work in parallel with the legislated dispute resolution and independent oversight bodies to facilitate and monitor implementation of all treaties and agreements.
- Bridging mechanisms could be included to support Indigenous groups with existing agreements to transition to new policy approaches, if requested and with the concurrence of all parties. This could include building on treaties and self-government agreements.
- Principles and guidelines could be included to support discussions on the interpretation and implementation of treaties, with the goal of advancing concrete and practical outcomes that result in mutually beneficial and constructive treaty relationships.
- Measures to determine the recognition of modern beneficiaries of treaties signed prior to 1975 could be included as part of the new policy.
The approach to fiscal relations could seek to negotiate arrangements that build Indigenous communities' capacity for self-determination and governance to address the significant socio-economic disparities between Indigenous and non-Indigenous people in Canada.
To that end, federal transfers to Indigenous nations and collectives should be sufficient, predictable and sustained to ensure capacity to govern effectively and provide programs and services. Future fiscal policy changes could take place through a multi-lateral negotiation process.
Your thoughts, views and concerns
The Government of Canada is interested in your views – please provide your written comments related to the possible ways forward. Write to Minister Bennett at email@example.com or:
Policy Development and Coordination Branch
Treaties and Aboriginal Government Sector
Crown-Indigenous Relations and Northern Affairs Canada
10 Wellington, 8th Floor
Gatineau (Québec) K1A 0H4