Speaker's Corner: Embrace reconciliation in practice

Prime Minister Justin Trudeau has promised a “new relationship” with the indigenous people of Canada.
Of all his pledges, perhaps the most important and compelling was the commitment to implement in full the 94 recommendations of the Truth and Reconciliation Commission led by now-Senator Murray Sinclair.
 
It is now time for both the federal and provincial governments to embrace the journey of reconciliation in practice as well as in rhetoric. The willingness to make symbolic gestures should not be dismissed, but it needs to be matched by a political will to change both the law and policy. 

The commission firmly placed the residential school disaster in its historic context. The same governments that implemented the ruthless policy of forcibly taking children away from their parents and placing them in institutions whose purpose was to destroy their language and culture and force assimilation introduced other policies as well, notably the Indian Act and treaties whose written texts insisted on indigenous party signing declarations of cessation and surrender of land. 

The current legal and policy landscape is still dominated by the legacy of this evil trinity of our Victorian past: dividing and conquering through the Indian Act, destroying culture and language through residential schools and clearing the land through colonial treaty implementation.

The commission has made an emphatic proposal that Canada’s policy future needs to reflect a completely different approach, one that fully respects the consequences of continuous indigenous presence on the lands of Canada since time immemorial, and the fact that Canada was not “discovered,” that there were people here when Europeans first arrived and that indigenous people had their own languages, culture, laws, institutions and ways of life that are still present today despite best efforts to destroy them. A genocide was attempted, but it did not work. 

Governments actually agreed to address these issues in the Charlottetown Accord when they agreed to put the inherent right of self-government into the Constitution with an agenda for implementation. When the Accord went down to defeat in most provinces, the commitment to self-government was forgotten. 

Some progress has been made in modern land claims and new treaties, but it has been pretty glacial. In policy terms, the federal government continues to insist that money transfers must reflect past spending patterns and that all claims to legal title must be abandoned and surrendered. 

We are also faced with the terrible irony that those jurisdictions without the old treaties have made more progress in self-government than Ontario, Manitoba, Saskatchewan, Alberta and British Columbia, where most indigenous people live. The recent Supreme Court decision on Treaty 3 makes it clear that the obligations of the Crown apply to both the federal and provincial governments. When one considers the ongoing controversies around mining, pipelines and resource development, it is apparent that the doctrines of surrender and exclusive Crown sovereignty are rejected by indigenous people, and that they are asking for new understandings and arrangements that reflect their teachings and values that the land must be shared and that life in the air, the land and the water must be respected.  

Specifically, it is time for the federal and provincial governments to abandon their insistence on legal surrender and to accept that sovereignty on traditional territories will be shared. At the same time, all governments, including indigenous governments, need to come to terms with the fact that Indian Act bands are, for the most part, too small to be able to carry out the work of government on their own. Regional and treaty-wide institutions need to be strengthened in order for self-government to be real. 

It is also essential that the fiscal framework of the past be abandoned. The decision of the Canadian Human Rights Tribunal in First Nations Child and Family Caring Society of Canada has implications for housing, health, education and all social services. It means that “separate and unequal” has to go, and that funding for these essential services has to match the principles of equalization that are set out in the Constitution to ensure equal provision for Canadian citizens living in different provinces. It is ludicrous to create a third order of government and then insist that the moneys and revenues flowing to those governments should still be controlled and determined by Ottawa and the provinces. It is also illegal. 
  
These are the next essential steps. They will force change in Ottawa and in every provincial capital. They will be expensive, for the simple reason that the enforced poverty and discrimination that has been such a part of the indigenous experience in this country have cost lives and are now a national shame and an international embarrassment. These changes will also require that all Canadians join the journey in their hearts and minds as well, as the Truth and Reconciliation commissioners insisted in their report. 

Stephen Harper once remarked that Canada’s international credibility was enhanced by the fact that we had no imperial baggage. The truth is that our international credibility is undermined by our unwillingness to admit to our colonial past and present. Canadian governments, today, are the inheritors of structures of domination and discrimination that were intended to destroy indigenous people and their institutions.
That indigenous peoples and cultures have survived is a deep tribute to their resilience. The central issue for our time is our willingness to come to grips with this past and to make sure the present and future are different, and to ensure that this vision of a thriving future is based on a deep and lasting partnership.

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Bob Rae was the Premier of Ontario from 1990 to 1995 and currently is a senior partner at Olthuis Kleer Townshend LLP. He works with First Nations across Canada as legal counsel, advisor, negotiator and arbitrator.