The Trudeau government announced yesterday that it will create a new framework for the recognition and implementation of Indigenous rights (see the news release from the Prime Minister’s officer here). The Prime Minister spoke for over fifteen minutes in Parliament announcing this initiative, but provided little in the way of details.
The framework will be developed through consultation with Indigenous Peoples, industry and the public at large. The stated intention is to introduce the framework to the House of Commons in 2018 and to commence implementation by October 2019.
The government says that the framework at least will entail “new legislation and policy that will make the recognition and implementation of rights the basis for all relations between Indigenous Peoples and the federal government going forward.” The Prime Minister’s Office indicated that the framework also could include “new measures to support the rebuilding of Indigenous nations and governments, and advance Indigenous self-determination, including the inherent right of self-government.”
It is not known how “recognition” will be reflected in the framework. The "simplistic" option for “recognition” is that Canada accept the existence of any Indigenous right or title claimed. This option would raise issues of jurisdictional uncertainty and the real prospect of Indigenous Peoples holding a veto on resource development in Canada. There are many options, however, for addressing the "recognition” aspect, which demonstrates the importance of broad engagement on the framework.
It also is not known whether the federal government plans to draw any distinction between Indigenous title rights of treaty vs non-treaty lands. Under many of the treaties entered into by Canada, the Supreme Court of Canada has made clear that First Nations have given up claims to Indigenous title and rights in return for treaty rights. Current Canadian law requires an Indigenous group to successfully “strike down” a treaty before it could seek a declaration of Indigenous title. An important issue with which the government will need to grapple in structuring the framework is how “recognition” will apply to those Indigenous Peoples who are signatories to treaties but continue to claim Indigenous title.
Before long, provincial governments also may follow the federal lead. BC’s NDP Government under Joh Horgan has promised to implement UNDRIP, but has yet to outline a process – the Alberta government has made similar promises. An Ontario Liberal government under Premier Wynne’s leadership also would be expected to eventually adopt a similar approach.
A framework may be an innovative solution to a long standing problem. The reduction of litigation and the advancement of reconciliation are laudable goals. Regardless of the content, however, the framework will have far-reaching implications to resource development in Canada. The nature of those implications will need to await the results of the consultation and framework development over the next year.
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