Frances Abele, Stephanie Irlbacher-Fox, & Joshua Gladstone
Nearly half a century ago, Canada’s political leadership agreed to negotiate comprehensive land claim agreements – modern treaties – with nations and peoples who had not previously concluded treaties, and who wished to do so. The federal change of heart was initially an exceedingly cautious response to a number of historical forces. One of these was the accumulating jurisprudence on Indigenous rights, beginning with the 1973 Supreme Court of Canada decision in Calder. It was also a response to the growing political power of mobilized Indigenous Peoples, and the apprehension that Indigenous Peoples’ determination to defend their rights would impede resource development.
Since the establishment of the Office of Native Claims in 1974, 26 modern treaties have been concluded. Unsurprisingly, these treaties vary, reflecting the major changes in Indigenous-Canada relations over the same period. A major influence has been the evolving constitutional framework following patriation of the Constitution in 1982 and entrenchment of “existing aboriginal and treaty rights.” Besides shifting federal negotiating mandates, implementation of modern treaties has been fraught with challenges. There have been differences of high principle: does the treaty mean that the Crown and Indigenous parties are now quits? Or does it open a new and enduring government-to-government relationship? There have been questions of federal capacity: virtually all federal departments and agencies have specific responsibilities related to treaty implementation, though officials in many have been unaware of these for long periods, and often lack sufficient expertise to address them. Meanwhile, treaty holders wonder if inaction on treaty implementation is due to lack of federal awareness, lack of enthusiasm, or a more conscious refusal to engage, on the grounds that to do so would result in drawing more effort and resources from, and consequent change for, business as usual. There have also been struggles for provincial and territorial governments, as they have had to “make room” for Indigenous governments and take treaty commitments fully into account.
The result is that modern treaties have not become the success stories they hold the potential to be. The earliest modern treaties, such as the James Bay and Northern Quebec Agreement, and the Inuvialuit Final Agreement, did not include implementation plans. Modern treaty holders have had to go to court, or settle out of court, to resolve disputes over treaty implementation. The Auditor General of Canada has criticized the federal government for inadequate measures to monitor and implement agreement obligations. Perhaps most importantly, treaties generally have been vastly underfunded, with some activities not being funded at all, which has had the effect of essentially gutting aspects of the potential of treaties to improve the lives, material conditions, and life chances of the Indigenous Peoples whose futures the modern treaties are meant to enhance. In many cases, modern treaty signatories have used their own source revenues, and in some cases, income from settlement agreements, to implement their treaties. Using such funds to support treaty implementation has reduced their abilities to foster alternative and more locally impactful forms of economic development. Further, many modern treaty holders operate in contexts where essential services, infrastructure, and education and health systems are inadequate or non-existent, resulting in inaccessibility of basic services such as clean water, medical, and educational services, which, in turn, results in social suffering and other challenges that further interfere with modern treaties’ potential for success.
Indigenous modern treaty signatories have long advocated for successive federal governments to confront these challenges. The election of a Liberal government in 2015 promised change. Among other commitments, the Liberal platform called for a renewed relationship with Indigenous Peoples based on a commitment to enact the recommendations of the Truth and Reconciliation Commission, beginning with the implementation of the United Nations Declaration on the Rights of Indigenous Peoples. These high-level commitments were a departure from a previous decade of Indigenous-Crown relations marked by hostility and non-communication. The platform raised expectations that Indigenous Peoples would work closely with the new federal government to enact its commitments, including the commitment to renew treaty relationships “based on principles of mutual recognition, mutual respect, and shared responsibility for maintaining those relationships into the future.”2
Over the course of the 2015-2019 Liberal mandate, the fate of modern treaty implementation reform has become entwined with the federal government’s efforts to configure a comprehensive approach to Indigenous rights recognition. This has led to changes in the machinery of government, outlined in the Cabinet Directive on the Federal Approach to Modern Treaty Implementation.3 It has also created the opportunity for broad legislation and policy reform. The commitment by the Prime Minister in February 2018 to develop a Recognition and Implementation of Indigenous Rights Framework (RIIRF) in partnership with First Nations, Inuit, and Métis peoples signalled the federal government’s approach to change. Consultations on the RIIRF went ahead, but Indigenous concerns about the transparency and accountability of the process4 caused the federal government to retreat from a comprehensive legislative package and move instead to pursue more narrowly focused legislation on Indigenous child welfare5 and Indigenous languages6. It was not only Liberal initiatives that fizzled. Bill C-262, the bill introduced by the NDP’s Romeo Saganash that would ensure the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, passed the House of Commons with a strong majority but failed to pass in the Senate due to Conservative opposition. If it had passed, this legislation would have had implications for the interpretation of law and policy related to the duty to consult and accommodate concerning development on Indigenous lands – including modern treaty lands.
Indigenous modern treaty holders have always stated consistently and forcefully that their agreements provide tools to enact their right to self-determination. As a matter of high policy, modern treaties provide a constitutional basis for Indigenous signatories to control their own cultural, economic, and social development in ways that recognize their continuity as peoples within Canada. Not long ago, it was the denial of these rights that made possible state paternalism, discrimination, and neglect, enabling the worst forms of colonial domination and violence. Today, a refusal to address the factors that undermine effective implementation of modern treaties would jeopardize the solemn commitments they contain and undermine the rightful expectations of Indigenous Peoples and nations who wagered their futures on a renewed, nation-to-nation relationship with the Crown. A failure to fix enduring implementation challenges may be seen as an indictment of the federal government’s commitment to reconcile colonial history and practices with the persistence of Indigenous Peoples as the holders of collective rights.
This special issue of Northern Public Affairs presents a number of responses to the challenges of modern treaty implementation. Despite the obvious need, there has never been an independent academic study of modern treaty implementation. Most of the essays in this collection represent the first sounding of the results of the first such study – the Modern Treaties Implementation Research Project, a Social Sciences and Humanities Partnership Grant co-developed with the members of the Land Claims Agreements Coalition.
The Land Claim Agreements Coalition is an advocacy organization representing 26 “modern treaty” (MT) holders: those Indigenous governments and representative organizations that have negotiated agreements, on behalf of their nations and peoples, under the comprehensive land claims policy since it was introduced in 1973. Between 2012-2015, modern treaty holders worked to seek a source of funding and way to organize to generate evidence around modern treaty implementation challenges and successes. In 2017, the Social Sciences and Humanities Research Council awarded a $2.5M Partnership Grant focused on researching modern treaties, establishing a five-year research partnership between MT holders and academics from across Canada, with the intent of better understanding treaty implementation issues, supporting and training a new generation of Indigenous academic and community-based researchers, and generating quality evidence for Canadian policy makers at all levels of government. The project’s approach is decolonizing and reconciliatory: the project is jointly hosted by Carleton University and the Tłı̨chǫ government; the five themes are directed by Indigenous practitioners drawn from Indigenous governments, in partnership with academic co-leads from universities across Canada; and, the priorities for research – the five theme areas – were established by modern treaty government officials.
The Modern Treaties Implementation Research Project is a first step in what we hope will be many years of treaty implementation research that will contribute to fostering effective treaty implementation and policy making, as well as educating a new generation of researchers about the importance of implementation from the perspective of modern treaty holder organizations and the collectives that those organizations represent. It is our goal that non-Indigenous researchers working with this project approach their tasks in culturally competent and respectful ways, understanding their responsibilities as settler Canadians in a context of reciprocity that will end colonial norms in research. But most importantly the project seeks to expand the involvement and foster the leadership of a new generation of Indigenous students, community members, and scholars, by creating space for them to undertake research in support of the spirit and intent of modern treaties. ◉
Frances Abele is Chancellor’s Professor in the School of Public Policy and Administration, Carleton University.
Stephanie Irlbacher-Fox is Adjunct Professor in the School of Public Policy and Administration, Carleton University, and Principal Investigator for the Modern Treaty Implementation Research Project.
Joshua Gladstone is a co-founding editor of Northern Public Affairs.
1. Good sources on the court cases are https://www.oktlaw.com/first-canadian-court-scc-recognizes-aboriginal-title-tsilhqotin-nation/ and https://indigenousfoundations.arts.ubc.ca/calder_case/
2. Report of the Truth and Reconciliation Commission, Call to Action 45(iii), p.326.
4. For example, see http://www.afn.ca/2018-08-implementing-canadas-recognition-and-implementation-of-indigenous-rights-framework-and-clarifying-the-role-of-the-afn/