Monday, January 21, 2013

Aboriginal Rights in Canada: What Are the Priorities of Idle No More?

Wuikinuxv Village, Wuikinuxv Nation, British Columbia
Photo by author
A lot of you might have been wondering about what the recent protests by Aboriginal peoples and their supporters across Canada are all about. I'm a white guy - about as white as they come since most of my extended family still lives in Scotland. I'm not speaking here for Idle No More or for any particular Aboriginal people. But I've spent a lot of the last 18 years working with Aboriginal peoples all over the country. From Vancouver Island, to Nunavut, to Newfoundland & Labrador.

I've spent a lot of time listening. And observing. And feeling very welcomed.

Thus I offer I few of my own observations as an Aboriginal lawyer who now works for Aboriginal peoples in Canada, but previously worked for many years on the Federal Government side.

I'd suggest that on one level Aboriginal people want what all other Canadians want: (1) good schooling for their children; (2) adequate health care; (3) jobs; (4) safe environments for their families.

On another level, however, Aboriginal peoples have been repeatedly recognized by Canadian courts as possessing rights other Canadians don't have. Thus they want those rights respected - full stop. The challenge lies in defining what those rights are, and in adapting modern practices to historical promises.

Some out there may rail against "special rights," but when it comes right down to it non-Aboriginal Canadians are already beneficiaries of many classes of special rights based on age, parental status, residency, health or disabilities, language, or other aspects of their lives. In many respects, Aboriginal rights are already a lot more limited than other Canadian rights, as they are not individual rights, but rather "collective rights exercisable by individuals," meaning that the collectivities control how and by whom the rights may be used.

In considering why you may not be hearing a single voice or message out of the Idle No More movement, you need to understand the diversity of Aboriginal peoples in Canada. According to the Assembly of First Nations (AFN) there are at least 630 "First Nations" in Canada, but even the AFN only represents (according to its Charter ): "The Chiefs of the Indian First Nations in Canada" together with their people. Some of those First Nations are comprised of thousands of members, while others are only comprised of a few dozen members.

You also need to understand that the term First Nation usually doesn't include the Inuit people of the Northwest Territories, Nunavut, Northern Quebec and Labrador. Nor the Métis people who are spread throughout Canada, but particularly concentrated in Northern Ontario and the prairies. Nor sometimes the numerous off-reserve, non-status Aboriginal people - many of whom live in Canada's cities.

Some of these Aboriginal peoples have historic treaty rights embodied in short historic documents, while others are beneficiaries of modern treaty rights contained in exceedingly detailed and lengthy documents. And some have non-treaty Aboriginal rights like hunting and fishing rights.

Although the AFN doesn't represent everyone, it remains the most representative and largest of Aboriginal organizations, and so in considering Aboriginal change priorities its worth looking at an important document the AFN issued on 11 January 2013 entitled "Fundamental Change, Remedies and Actions Required For First Nations Immediately." This document sets out 8 brief points and is quite instructive in the consensus it shows, and the way it goes into a lot more detail than what more general Idle No More movement principles may reflect.

In summary, the eight AFN principles call for:
1. establishment of a working process for implementation and enforcement of Treaties on a Treaty by Treaty basis; 
2. reformation of the land claims process through reform of the comprehensive claims policy based on recognition of inherent rights rather than extinguishment of rights; 
3. resource benefit, equity and revenue sharing; 
4. that all new Canadian legislation should be consistent with existing Canadian constitutional and international human rights protections of Aboriginal peoples; 
5. transformation of the fiscal relationship between the Crown and First Nations;  
6. establishment of a national public commission of inquiry on violence against indigenous women and girls; 
7. a guarantee of schools in every First Nation that reflect First Nation language and culture and provide a safe and supportive place to learn; 
8. establishment of a secretariat within the Privy Council Office of the Government of Canada responsible for First Nation-Crown relations. 
It is, to be sure, a diverse list. But you need to understand that it's reflective of the diversity of Aboriginal peoples in Canada. As well as being reflective of the stark social and economic realities faced every day by many of those peoples.

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