SPECIAL REPORT

Canada’s Emerging
Indigenous Right’s Framework:
A Critical Analysis

An Overview

Justin Trudeau ran on an election platform of changing the relationship between the Crown and Indigenous peoples in Canada. Trudeau promised a new nation-to-nation relationship based on the recognition of Indigenous rights, respect, cooperation, and partnership. Over halfway into his mandate as Prime Minister, some clarity is emerging on the scope of that nation-to-nation relationship. In February 2018, Trudeau announced the development of a new and transformational Indigenous Rights, Recognition and Implementation Framework.

Since then, a suite of legislation and policy has been rapidly deployed. It includes fiscal policy, omnibus legislation, changes in negotiations for land and self-government, two new ministries of Indian Affairs and dozens of tables, working groups, MOUs, and related government initiatives.

Yet, there is scarce comprehensive analysis on the meaning and trajectory of Canada’s approach.

Our report finds that the Rights Framework expresses a clear and coherent set of goals, which revolve around domesticating Indigenous self-determination within Canadian Confederation. These goals have been ordered into legislation and policy in a manner that guides First Nations towards a narrow model of “self-government” outside of the Indian Act.

The report is divided into three sections:

Part 1:  Relationship Reform
Changes to the machinery of government to facilitate the new relationship

Part 2: Policy Reform
Existing and emerging policy on “reconstituting nations”

Part 3: Legislative Reform
Pending legislative reform and the “pre-conditions” for Indigenous Rights

The Trudeau government has been among the most active on Indigenous issues in a century. How will current and pending policy and legislative changes impact First Nations pursuit of self-determination?

Key Questions

01.
Will the Rights Framework replace the Indian Act or simply offer an opt-out process?

02.
Will the Rights Framework lead to higher quality of life and alleviation of socio-economic challenges for First Nations?

03.
How will the new Rights Framework affect pre-confederation, Numbered, and Modern Treaties?

04.
Will the Rights Framework shift the burden of proof for proving title from Indigenous communities to Canada?

Report Takeaways

The Rights Framework is complex and multifaceted, but it revolves around Liberal interpretations of First Nation “self-government.”

Canada is redefining Indigenous self-determination away from expansive jurisdiction and towards containment within Canadian Confederation. This process cultivates a “nation-to-nation” relationship that avoids inherent and treaty rights and does not deal directly with the authority of Indigenous nations to exercise control over their territories.

Towards these ends, our analysis finds evidence that the Liberals have set in motion processes to:

Re-structure the machinery of government to transition First Nations out of the Indian Act and towards self-government agreements

Maintain a re-packaged version of the discredited 1995 Inherent Right self-government policy 

Expedite the number of modern treaties and address ongoing implementation challenges

Support the “reconstitution of nations” as aggregated service-delivery populations, with limited  jurisdictional authority off-reserve

Address outstanding Aboriginal title claims through incremental and sectoral approaches that offer flexibility but limit the expression of title to fractions of First Nation claims

Build fiscal capacity within First Nations to transition all Indian Act bands into self-government agreements, rather than to expand the land base and deal honourably First Nations as economic rights-holders

Domesticate UNDRIP and free, prior, and consent articles though a narrow interpretation of the Declaration and restricting consent to reserve or settlements lands, at best

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