OTTAWA—The value-laden words of truth, apology, reconciliation, compensation, and nation are all being used repeatedly in the national exchanges involving Indigenous peoples.
Lurking in the background are the larger words of sovereignty, self-determination, self-government, and possibly, independence—words that must be acknowledged if we are to emerge from this period of introspection and fragmentary answers.
In recent years, the courts, more than governments, have led the way in correcting the egregious racial-based errors of Canadian colonialism in the treatment of the Indigenous peoples. As the former Supreme Court chief justice, Beverley McLachlin, modestly stated during her farewell press conference, she was proud to have played a role in the “development of a legal structure into which Indigenous rights can function.”
Unfortunately, as with all court cases, such decisions only faintly illuminate the road ahead. The decisions are piecemeal and only slightly incremental; they do not provide Canadians with a coherent, achievable idea of the future relationship between those who arrived first and those who came much later. This is not a criticism of the courts but rather a reflection of the inadequacy of our political system in dealing with large moral issues.
The 1982 Constitution Act in Section 35 “recognize[s] and affirm[s]” the “existing” Aboriginal and treaty rights in Canada. Apart from the possibility of changes to those rights, the Constitution offers very little to direct how those rights are administered. It does provide that in future discussions on this section, the prime minister will invite representatives of Canada’s Aboriginal peoples to participate.
Inherent in constitutional documents is the continuation and perpetuation of the historical colonial relationship imposed by the most recent arrivals.
Worldwide, the post-war period saw the elimination of colonial relationships. This decolonization—or, more accurately, independence for dominated peoples—is now largely seen in our rear-view mirrors. Diverse peoples of the world, not exclusively in Africa, Asia, and the Caribbean, eliminated political, economic, and social domination by almost exclusively Western countries.
It’s long forgotten, but this age of independence followed the elimination of slavery as an acceptable moral and economic policy. More than 100 years of concerted effort as well as many wars were needed before the concept of slavery was discarded on the dust pile of history.
However, decolonization for Indigenous peoples, called by some “the Fourth World,” is still ongoing, so their political, cultural, and economic slavery continues.
On Sept. 13, 2007, the countries of the world collectively sought to deal with this continuing colonialism.
The United Nations Declaration on the Rights of Indigenous Peoples was agreed to by 144 countries. Not surprisingly, four countries that were themselves the products of the British colonial system, objected. Canada, along with the United States, Australia, and New Zealand voted against the declaration. At the time, two Canadian cabinet ministers erroneously stated the declaration was “fundamentally incompatible with Canada’s constitutional framework.”
Wisely, a decade later all four countries, with some reluctance, moderated their objections, and haltingly signed on.
Their objections centred on the key issues of self-determination and, possibly, independence that were not voiced in the declaration but were silent witnesses. Of concern as well were principles associated with control of traditional lands and economic decision-making.
Future Canadian actions must be made within the context of this worldwide set of principles for Indigenous peoples. The difficulty or perhaps reluctance in meeting the declaration’s objectives was illustrated in recent weeks when the government sought to dilute, through legislation, the effect of a decision by a Quebec court to remove discrimination against Indigenous women who married a non-Indigenous partner. The Commons voted with the government and it was only through Senate action that a path to equality was included in the final law.
This historical racially based piecemeal approach to change in the relationship with Indigenous peoples needs fundamental reconsideration and reordering. Large national decisions are effectively delayed and deterred because there are no comprehensive mechanisms in which Indigenous peoples are represented and involved in national political and economic debates. Changes to the National Energy Board, or environmental studies, or indeterminate consultations or tweaks to various laws have demonstrated their inability to cope with the continuing legacy of colonialism.
A more dramatic and comprehensive approach is needed, and the genius of our federation provides an answer. The federation was created on the basis of a bilateral political agreement that divided sovereignty in order to moderate and bridge cultural, linguistic, racial, and religious differences.
One hundred fifty years later, we experience the success of that agreement. That historical success provides the confidence to overcome the continuing colonial governance of Indigenous peoples and provides for their effective inclusion within the national life of the country.
There are no large barriers against transforming the current bilateral federalism into a formal trilateral one, with the inclusion of the Indigenous peoples of Canada as a fully sovereign party. Canadian history has already demonstrated the flexibility of our mechanisms of government when large moral and political issues need accommodation. What is missing is the political will to effectively end the lingering colonial attitudes towards Indigenous peoples who are already a sovereign part of the federation.
Gar Pardy is retired from the Canadian foreign service and comments on issues of public policy from Ottawa. In a companion piece tomorrow he’ll discuss more about the Indigenous-federal relationship.
The Hill Times
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