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The government should sit down with the Indigenous nations of Canada as partners to negotiate a new treaty, like the 18th-century Treaty of Niagara.

In September, at a national forum hosted by the Assembly of First Nations, a number of First Nations chiefs expressed their opposition to the federal government’s Recognition and Implementation of Rights Framework . In advance of that meeting, the legal scholar and former judge Mary Ellen Turpel-Lafond, a former commissioner of the Truth and Reconciliation Commission, Wilton Littlechild, and British Columbia Chief Ed John sent Prime Minister Trudeau a letter challenging the Indigenous rights recognition framework as more “rights-denying” than rights-recognizing.

These critics are right; the very idea of federal legislation to create an “Indigenous rights recognition framework” is fundamentally flawed, even misguided. The treaty relationship, as first articulated by the Peace and Friendship Treaties in the Maritimes (where we are from), does not give the Crown the right to define a framework under which the Crown will “recognize” what “rights” Indigenous peoples have. For Indigenous peoples, the very idea of “rights,” as something granted to citizens by a sovereign, is the language of colonialism. It is high time we replaced the language of rights with the language of sovereignty and the treaties. We need to understand the history of Crown-Indigenous relations as one of sovereign Indigenous nations sharing their sovereignty, through treaty, with the European settlers. As the elders tell us, it is up to Indigenous peoples to keep treaties alive. Today, keeping the treaties alive means opposing the imposition of a “rights recognition framework” by the federal government. The courts seem to understand, at least at times, that reconciliation requires the recognition of Indigenous sovereignty and respect for this sovereignty in how our governments work together. Back in 2004, in its Haida Nation v. British Columbia (Minister of Forests) decision, the Supreme Court of Canada recognized that Indigenous sovereignty predated the Crown’s assertion of sovereignty. The Court compared pre-existing Indigenous sovereignty with merely “assumed” Crown sovereignty. The Court also said that conflicting claims of sovereignty had to be reconciled through “the process of honourable negotiation.” It is important to keep in mind that the Supreme Court said “negotiation,” not “consultation.”

More recently, the Federal Court of Appeal, in its decision on the Trans Mountain pipeline extension , said that serious consultation does not exist simply to allow Indigenous peoples to “blow off steam” before the Crown goes forward with what it was intending to do anyway. The court said, “Consultation is meaningless when it excludes from the outset any form of accommodation,” and “meaningful dialogue is a prerequisite for reasonable consultation.” Dialogue is how sovereign nations resolve conflicts when they wish to find a cooperative way to manage shared interests, for example by negotiating a treaty of peace and friendship. As Don Lenihan, who has had extensive experience in managing dialogue and citizen engagement processes, defined “dialogue” in the aftermath of the Court of Appeal decision, participants are expected to listen to one another, learn about each other’s concerns and perspectives, discuss their similarities and differences, weigh the evidence before them and work together to strike a balance among their competing interests that everyone can feel is fair. Dialogue, then, is how sovereign nations resolve conflicts when they wish to find a cooperative way to manage shared interests, for example by negotiating a treaty of peace and friendship.

Unfortunately, the federal government does not yet seem to understand that reconciliation requires real, active recognition of Indigenous sovereignty and a commitment to work with Indigenous nations as nations within the multinational community that is Canada. The […]

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