The federal government says it will support Indigenous people in realizing their visions for their futures and in rebuilding their nations by creating new legislation that forces its officials to stop demanding that Indigenous people prove their constitutional rights exist.
It is anticipated that the new policy will move cases out of courts and to negotiating tables, saving years of legal battles and millions of dollars annually in legal fees. It could also move many First Nations down the path of self-government by allowing them to quickly take control of aspects of their lives such as education and health care at the time of their own choosing instead of waiting for government approval.
“Going forward, recognition of rights will guide all government relations with Indigenous peoples,” Prime Minister Justin Trudeau told the House of Commons on Wednesday in announcing that, 36 years after Section 35 of the Constitution protected aboriginal and treaty rights, government officials will have to accept aboriginal rights guaranteed under the Constitution as a starting point for any government decisions, actions or negotiations.
“Instead of outright recognizing and affirming Indigenous rights, as we promised we would,” Mr. Trudeau said, “Indigenous peoples were forced to prove, time and time again, through costly and drawn-out court challenges, that their rights existed, must be recognized and implemented.”
The new legislation and policy will be developed, he said, in consultations with the First Nations, Inuit and Métis as well as the provinces and territories and non-Indigenous Canadians that will be led by Carolyn Bennett, the Minister for Crown-Indigenous Relations and supported by Jody Wilson-Raybould, the Justice Minister.
While most of the details will be sorted out during that consultation, the ministers said some overarching principles have already been established.
In land-claims negotiations, for instance, Indigenous groups would still have to prove that they have title to a specific parcel of land. But once title has been established, federal officials would work from the assumption that all of their Constitutional rights are applicable.
Or if a group of First Nations wanted to take control of their health-care system, the government would start from the premise that they have the right to do so.
Although minority rights to such things as sexual and religious equality that are guaranteed under the Constitution have been spelled out in law, that has not yet happened with the aboriginal rights guaranteed in Section 35.
John Borrows, a professor at the University of Victoria who is an expert on Indigenous law, called the proposed legislation “a big deal” for aboriginal people.
Since 1990, Mr. Borrows said, about 50 cases have gone to the Supreme Court in which Indigenous people have had to prove their Constitutional rights applied “and the burden of proof is always on aboriginal peoples to claim what should be already protected under the constitution.”
Some cases have cost tens of millions of dollars over several years because the courts have had to be forced to recognize things that should have already been recognized and affirmed, he said.
It is unclear how long it would take for steps proposed by Mr. Trudeau to become law, but the Prime Minister said it is his intent to have the new framework passed into law before the next election.
In the meantime, a group of cabinet ministers is reviewing federal laws, policies and operational practices to ensure the Crown is meeting its constitutional obligations and adhering to international human-rights standards – including the United Nations Declaration on the Rights of Indigenous Peoples.
And the Liberal government is supporting an NDP private-member’s bill that calls for the full implementation of that UN declaration, which sets out the individual and collective rights of Indigenous peoples and promotes their full participation in all matters that concern them.
Grand Chief Ed John, a lawyer who is a member of the First Nations Summit Task Group in B.C., said the new approach is something First Nations have needed since Confederation.
“It’s about time,” Mr. John said. The rights have been in place since the constitution was ratified in 1982, but it’s been Canada’s position that you have to prove it, he said. “That’s been a policy of the government and, if they can get beyond their denial approach of aboriginal rights, now we’re in a place where we have recognition. And that is a very important development for First Nations.”
The Globe and Mail, February 14, 2018