Realizing a Nation-to-Nation Relationship with the Indigenous Peoples of Canada

Notes for an address by
The Honourable Jody Wilson-Raybould, PC, QC, MP
Minister of Justice and Attorney General of Canada 

To the
Cambridge Lectures
Walnut Tree Court
University of Cambridge
Cambridge, United Kingdom
July 3, 2017

Check against delivery 

Gilakas’la. Thank you for the very generous introduction. Thank you to Justice Sharpe and the Canadian Institute of Advanced Legal Studies for inviting me to present as part of the 2017 Cambridge Lectures. I want to acknowledge all of the dignitaries, students, scholars, and members of the public that are here today. I am very pleased to bring greetings on behalf of the Right Honourable Justin Trudeau.

I am happy to be here in Cambridge, having been asked to share some thoughts about how we realize the nation-to-nation relationship with Indigenous peoples in Canada. I am also delighted to be here with my husband Tim, who is back at his alma mater. Although he did not go to Queens he tells me he did come here, as he was a member of the Cambridge Tiddlywinks Society, which, back then, was run out of this college.

Tim and I only arrived in the UK this morning. This was because, as I am sure everyone is aware, Saturday was Canada’s 150^th birthday and there were many, many celebrations – a number of which I had the great pleasure of attending in Vancouver where I am a Member of Parliament. Canada truly has so very much to be proud of, and I, like all of my fellow Canadians in this room, share in that pride. We are one of – if not the most – diverse, peaceful, democratic, respectful, and cohesive nations on earth. That is a remarkable achievement and generations of people have made sacrifices to make today’s Canada possible.

It is a reflection of how remarkable Canada is that a Kwakwaka’wakw girl from the west coast of British Columbia – born only 11 years after Indigenous peoples were granted the right to vote federally in 1960 – is now serving as the 51^st Minister of Justice and Attorney General of Canada.

However, and to speak openly, not all Canadians have been celebrating Canada 150. There are voices that question the celebration. The experience of Indigenous peoples has not always been characterized by the same positive values and realities that the world rightfully associates with Canada.

To tell the story of Canada truthfully – as we must – in addition to all of our achievements, we have to acknowledge a darker chapter in our history…that being the impact of colonization as well as the resilience of generations of Indigenous peoples seeking justice to ensure the survival of their cultures, languages and way of life.

It is this aspect of Canada – the reality of colonization and the work of rebuilding – that is at the core of realizing new nation-to-nation, government-to-government, Inuit-to-Crown relationships – something to which our government is fully committed.

As we look back to when the fathers of Confederation came together in 1864 in Charlottetown and then again a year later in Quebec to lay out the foundation for Canada, Indigenous peoples were not present – they were left out – this despite the early treaty-making and the many political and military alliances made with Indigenous peoples including those made under the auspices of the Royal Proclamation of 1763. The fact that Indigenous peoples were left out has had far-reaching implications for Confederation in the tumultuous intervening years as reflected in the current state of Indigenous and non-Indigenous relations.

Today, in looking to re-establish the nation-to-nation relationship, what we are doing – simply stated – is correcting this mistake.

Well before Confederation some Indigenous Nations indicated their assent to treaty by presenting wampum to officials of the Crown. Although not a part of my culture, wampum, as some of you may be aware, is made of seashells from the Atlantic that are woven into belts – particular patterns that symbolize events, alliances and people.

For example, the 1613 Two-Row Wampum Belt of the five Iroquois Nations of the Haudenosaunee has two rows of purple beads set on a white background. The rows represent the courses of two vessels – a Haudenosaunee canoe and a European ship – travelling parallel together, each one containing their respective nation’s laws and customs but never crossing. The belt symbolizes that neither group will force their laws, traditions, customs or language on each other, but will coexist peacefully.

Fast forward to today and considerable water has flowed down the symbolic river of the two-row wampum belt since it was originally presented.

When the original framers of our Constitution met, they were, of course, not completely silent with regard to Indigenous peoples. Section 91(24) gives the federal government exclusive jurisdiction for “Indians and lands reserved for the Indians.” This was, I feel, to ensure that Indigenous peoples would be dealt with as a national matter in balancing the provincial quest for expansion and development with the interests of the first peoples. More treaties were contemplated.

Unfortunately, after Confederation the policy of government soon became one of assimilation not partnership – in short, denial.

This denial was reflected in government policy and laws, and was evident in the positions argued by government lawyers in court. It became normalized not to consider the rights and realities of Indigenous peoples, in order to try and force them into the rest of society through residential schools, and other acts such as banning aspects of culture and ceremony.

The most insidious of tools used to propagate this policy was the Indian Act, which in large part still governs the relationship today. Rather than being citizens or members of a Nation or Tribe of Indians based on a treaty relationship as symbolized by the wampum belt, under the Indian Act, Indians were defined and made wards of the state – with the government as trustee.

Through the Indian Act the some 60 to 80 Nations or Tribes were divided into 633 small federal administrative enclaves called “bands” on some 3,000 reserves.

Across Canada, while there may be differences in the specific Indigenous histories (whether speaking about First Nations, Métis and Inuit) – a critical fact is shared – what should have been done legally, politically, and socially to make proper arrangements between governments and peoples – or honour and implement agreements that were reached – did not take place.

So, looking forward, how do we deconstruct our colonial reality and get back to the relationship as symbolically represented by the Wampum belt? How do we, as a government, support the rebuilding of Indigenous nations as part of Canada?

First, it means confronting the reality of our history – something which the Report of the 2015 Truth and Reconciliation Commission, established to address the legacy of “residential schools,” is helping us to do.

Moreover, beyond the necessary truth telling and healing, it means working to transform patterns of relations today and into the future through new types of agreements, mechanisms and constructive arrangements with Indigenous peoples. It will ultimately require undoing the Indian Act and other legislation that have remnants of colonialism. It also means creating laws and policies that recognize Indigenous governments and lands.

Over the last few decades, the term “reconciliation” has been used to describe this process of rebuilding relations – whether in decisions rendered by the court, the findings of independent Commissions and Inquiries, or more generally as discussed within civil society.

The growth in dialogue amongst Canadians about reconciliation is, of course, important and necessary. However, in my view, reconciliation is not possible without recognition – indeed, recognition must occur before reconciliation can begin to manifest itself in our lives and relationships. Let me explain...

In thinking about recognition, one might be forgiven for thinking that the progress made during our country’s recent history would have already ended the period of denial. While it was illegal for Indigenous peoples to raise issues of title and rights in the courts until the 1950s,  since then and for the last sixty years Indigenous peoples have won dozens of court decisions affirming their rights and establishing a legal basis for which reconciliation should occur. In 1982, with the patriation of the Constitution and the adoption of the Charter of Rights and Freedoms, section 35 was enshrined in our Constitution clearly recognizing and affirming the rights of Indigenous peoples.

There have also been a number of successful land claims and self-government agreements negotiated. But despite all these important developments, many aspects of relations between Indigenous peoples and the Crown are still based on denial rather than recognition.

For example, Indigenous peoples have had to prove their rights in court – despite the fact that they are recognized by section 35 of Canada’s Constitution. Such a process often costs Indigenous peoples millions of dollars and takes years. Similarly, most of our laws and policies – such as those around land and resource decision-making – do not properly consider the existence of Indigenous title and rights. Underlying all of this, of course, is that colonial legislation such as the Indian Act continues to govern the lives of many Indigenous peoples and communities across the country.

To simply say to Indigenous peoples “let’s reconcile” while still demanding that rights are only relevant if proven in court, or may be recognized at the end of a protracted negotiation, is not a true reconciliation. Neither is not acting to undo colonial laws and legacies that are based on denial. For reconciliation to fully manifest itself in Canada, denial must be ended in all of its aspects, and recognition become the foundation of relations.

This is no easy task when laws, policies, and practices have been built in one way for 150 years. This is why our government is taking a systematic and coherent approach to this work. To inaugurate this shift, our government endorsed the United Nations Declaration on the Rights of Indigenous Peoples without qualification.

We then created a centralized mechanism – a Working Group of Ministers – to start working with Indigenous peoples to decolonize our federal laws, policies and operational practices, and to ensure that all aspects of Canada’s relationship with Indigenous peoples become rooted in the recognition of rights. The Working Group’s mandate is nothing short of transformative. It is a process I expect to be driven by principles to be released publically, so that all Canadians – Indigenous and non-Indigenous – will see the expectations we are placing on the federal government for the change that must occur.

This approach also supports the hard work that Indigenous peoples themselves need to undertake to ensure that modern nation-to-nation relationships can be fully realized.

Amongst many important standards affirmed in UNDRIP is the idea of self-determination. At its core, self-determination means that Indigenous peoples set the direction for their own future, including the self-governing institutions they will use to serve and meet the aspirations of their citizens.

In undertaking this work, decisions will have to be made about what constitutes the nation.

In his decision at trial in the Tsilhqot’in Aboriginal title case – a decision that was ultimately upheld by the Supreme Court of Canada – the late Justice Vickers, in granting the first declaration of Aboriginal title in Canada, spoke to the question of the Indigenous nation in the context of the proper rights holder.

Interestingly, he characterized the Indigenous nation in the same way that French-speaking Canadians are viewed as a “nation” within Canada – namely, a group of people sharing a common language, culture and historical experience.

With respect to the administration of Indians, he was also very clear that the setting aside of reserves and the establishment of bands was “a convenience to government” and that “…the creation of bands did not alter the true identity of the people. Their true identity lies in their Tsilhqot’in lineage, their shared language, customs, traditions and historical experiences.” He went on to say that “While band-level organization may have meaning to a Canadian federal bureaucracy, it is without any meaning in the resolution of Aboriginal title and rights for Tsilhqot’in people.” Accordingly, and most importantly, he went on to conclude that the proper rights holder, whether for Aboriginal title or rights, is the community of Tsilhqot’in people. In other words, the Nation.

Matching the political and legal structure of the modern Indigenous nation to that of the proper rights holder will inevitably be a challenge as it already has been where modern treaties have been negotiated, or are still being negotiated. It will equally be a challenge for those groups that already have historical treaties given the pervasiveness of the existing and imposed colonial administrative structures.

There will no doubt need to be some compromise by Indigenous peoples themselves as to what constitutes a modern Indigenous nation and the associated institutions of self-governance. And we will need a clear process for the transition moving away from the status quo. 

What is also clear though, is that it is not for the federal government to dictate what self-government must look like, but for Indigenous nations to set a path forward, and the federal government to learn to act as partners in operationalizing and supporting that path as appropriate. 

For me, another telling aspect about the SCC decision in Tsilhqot’in – and I have said this elsewhere – was that the bench (if I can be so bold in this audience), having apparently made up its mind on the proven Aboriginal title area, was clearly moving on to the next big question, which is “what laws will apply to the title lands so proven.” The answer is, of course, a combination of laws in accordance with the constitutional division of powers and the rules of federalism as they are evolving. It will be a combination of Tsilhqot’in law, provincial and federal law. And the relationship between laws will have to be addressed through discussions and agreements among the parties or if necessary ultimately determined by the courts. 

So going back to the wampum analogy, while the laws may no longer exist solely within their own ship or canoe, side-by-side, they do still co-exist together. As the common law has evolved with new legal principles being developed, and notwithstanding the 1867 constitutional division of powers, the reality today is a Canada with multi-level governance where the federal, provincial and territorial, and now re-emerging Indigenous governments share power and decision-making between and among each other. Where existing and evolving legal principles such as cooperative federalism increasingly guide the complex web of authority for governments to make laws, often in the same area, in support of effective governance. As we move to a place of recognition, this becomes all the more important to understand. 

Moving forward, my colleagues and I are very confident we can, indeed, move Canada from a position of denial to one of recognition and, in so doing, remove the colonial institutions that stand in the way of Indigenous progress and, therefore, progress for our country as whole. 

And before I close, I can tell you that where Indigenous peoples have taken back control of their lives – and are well on the path to nation rebuilding – they are doing much better socially and economically than those groups that remain trapped within the colonial structures. And the good news is that many communities are already on this path but need support. There is success. And there is hope. 

As both a proud Indigenous woman and a proud Canadian, I believe that we are at a turning point where young people today, and generations to come, will experience growing up in a Canada where relations between Indigenous and non-Indigenous peoples have been transformed through new nation-to-nation relationships. 

Where the nation-to-nation relationship is within the borders of a united Canada, where groups of peoples with different legal traditions co-exist side-by-side within an evolved constitutional framework. A respect for legal plurality and social diversity that is, in many ways, a beacon of hope in an otherwise troubled world of seemingly more inward looking and ethnically divisive forms of state nationalism. 

So in closing, let me leave you with this thought. As we celebrate Canada’s 150^th birthday, think about this anniversary not so much as about celebrating the past, but about embracing a new optimism for the future within an even more inclusive and just Canada – and making the next 150 years better for all. 

Thank you, Gilakas'la.