Key Milestone Reached In Proposed Indigenous Rights Framework

The federal government released an overview outlining the potential parameters of the anticipated Recognition and Implementation of Rights Framework. Among other things, it offers a glimpse of the "comprehensive whole-of-government approach" that will underpin future relations with Indigenous peoples in Canada. This bulletin highlights the key takeaways of the overview.

Overview

In February 2018, the federal government committed to the review of its laws, policies and operational practices to ensure that the starting premise for all federal government action is the recognition of Indigenous rights. As part of this commitment, Prime Minister Trudeau announced the launch of a national engagement with Indigenous peoples to develop a Recognition and Implementation of Rights Framework (Framework).

According to the overview, released on September 10, 2018, the Framework is intended to recognize, respect, and implement Indigenous rights – aligning with Canada's evolving approach to engagement with Indigenous peoples. This includes the federal government's endorsement of the United Nations Declaration of Indigenous Peoples and its support of Bill C-262, as described in our previous bulletin entitled Bill C-262 adopted in third reading by the House of Commons and moves to first reading in the Senate. The Framework proposes to achieve this objective by removing barriers which have historically impeded the renewal of relationships; increasing the range and flexibility of governance structures, while potentially also addressing the recognition of Indigenous title and concerns about overlapping traditional territories (among other proposed areas of policy reform).

New Legal Entities – Nations and Collectives

The Framework proposes a new approach for advancing self-determination through federal recognition of an Indigenous "Nation or Collective" as a new legal entity. This would allow Indigenous peoples, including one or more Indian Act bands, to gain federal recognition of self-defined governing bodies within the proposed legislation without first entering into negotiations with the federal government.

As part of the transition process, a Nation or Collective could elect to remain governed by the Indian Act or other federal statutes in full or in part. Once federal recognition has been achieved, a Nation or Collective could immediately exercise various core powers, including:

• who is part of the Nation or other Collective
• the nature, structure, composition, and functions of the governing body
• rules and procedures for the selection of members of a governing body
• conflict of interest rules and procedures for a governing body
• rules and procedures for enacting laws
• system of financial management and accountability
• rules and procedures for holding meetings of the governing body
• process for amending of a constitution
• ability to delegate responsibilities, powers, duties and/or functions of the governing body to another entity
• law-making authority respecting subject matters of language and culture

While the Framework would enable the creation of new legal entities, thereby affording Indigenous peoples more options when it comes to self-determination, these changes could lead to more jurisdictional complexity.

Indigenous Title

Indigenous peoples consistently identified the recognition and implementation of Indigenous title as a critical topic of discussion during the national engagement process. According to the overview, "the new policy will recognize Indigenous lawmaking power; their inherent rights to land; and, in many instances, title within their traditional territories." Implementation would involve "measures to affirm the co-existence of Indigenous title, with the jurisdictions and interests of other governments." This includes the federal, provincial and territorial governments. Negotiated arrangements involving title to land could continue where appropriate.

Overlapping Territories

A core element of the proposed Framework is the creation of a new institution (or institutions) tasked with resolving overlapping territory disputes through alternative dispute resolution (ADR) and other measures. The overview suggests that ADR processes would be non-binding and optional. If successfully implemented, this proposal could increase certainty where traditional territory boundaries have not yet been settled through litigation or treaties.

Conclusion

The federal government has indicated its desire to move towards reconciliation by committing to a collaborative approach throughout the Framework's development. As it stands, its scope and content is likely to change with continued input from Indigenous groups, provincial and territorial governments, stakeholders, and Canadians. While the response of some Indigenous governments and advocacy groups to the Framework has been mixed[1], the intention remains to introduce the Framework to the House of Commons in 2018 and to commence implementation by October 2019.

[1] CBC article, "Battle brewing over Indigenous rights recognition framework"