Indigenous Land Rights - Chiefs of Ontario &OKT LLP Newsletter Issue 2 Contributed by Ontario Regional Chief Isadore Day, Kate Kempton & Sara Mainville Partners of OKT Law and Bob Rae, Former Ontario Premier & Partner of OKT Law

Chiefs of Ontario, in conjunction with the law firm Olthuis Kleer Townshend LLP (OKT), will be working to produce a monthly newsletter on various legal and/or policy topics that are likely to impact First Nations in Ontario. This second issue, “Indigenous Land Rights” begins with the topic of Ontario’s relationship with First Nations in this region and some good advice to the Premier by former Premier Bob Rae, who is a partner at OKT LLP. An important election is coming up on June 7th and ORC Day’s article on Land, People and Prosperity highlight some important matters and insights on treaty relationships. Sara Mainville’s article on the Treaty Commission

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CHIEFS OF ONTARIO BULLETIN

in Ontario to be reconsidered gives strong advice that our jurisdiction also must be part of the new TCO if one is to be properly (and jointly) implemented. Finally, as we consider 2019’s promised “Rights Recognition” Legislation, Kate Kempton suggests that First Nations in Ontario take the important direction of creating their own model legislation to pre-empt the work that Canada is doing and ensure that the legal framework is consistent with our jurisdiction and our treaties.

Bob Rae: “The Honour of the Provincial Crown - Notes for the Premier”

As we all know, the provincial election is now underway. Issues affecting indigenous people will inevitably be part of the political debate, but it’s probably fair to say that the outcome of any provincial contest rarely turns on the stances political parties take in the heat of the race. But, once elected, any Premier is immediately faced with the reality that dealing with indigenous peoples is not just about “public opinion”. It’s about the constitutional duties that go with the job.

While much of the focus on indigenous issues is centred on what is happening (or not happening) in Ottawa, the reality is that the province has an enormous influence on how the nation to nation relationship will in fact happen. Under the Constitution, the province of Ontario has been given jurisdiction over child welfare, education and natural resources, for example, as well as having a major role in health care and environmental issues. But the dividing up of power between the provinces and the federal government does not end the matter, because when the Constitution was patriated in 1982, it came with s. 35, which ensures that aboriginal and treaty rights are guaranteed and affirmed.

The Supreme Court has made it clear that s. 35 has real clout, and has forced both the federal and provincial governments to recognize that they are both bound by the obligations that go with the doctrine of the “honour of the Crown”. It also means that the unilateral interpretations of treaties and rights that have dominated provincial and federal politics and policies are things of the past. First Nations are united in their assertion that their own views of the treaty and nation to nation relationship have to be taken into account when either or both governments are making decisions.

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ONTARIO REGIONAL CHIEF ISADORE DAY

LAND, PEOPLE, PROSPERITY

SARA MAINVILLE ONTARIO’S TREATY

COMMISSION & IPPERWASH INQUIRY

KATE KEMPTON TAKING BACK THE

POWER & RECOGNITION OF RIGHTS

BOB RAE NOTES FOR THE PREMIER

The discussions across the country in fact go much further. First Nations have asserted for many years that their rights to self government are inherent, and this principle was accepted by all provincial governments in the Charlottetown Accord negotiations. The fight was then taken to the United Nations, and after a protracted process the Declaration on the Rights of Indigenous Peoples was adopted, and eventually ratified by Canada. This Declaration asserts the rights of indigenous peoples to their own governments and territories, and guarantees the rights of First Nations to “free, prior and informed consent” before projects are undertaken in their traditional lands.

In addition, the Canadian Human Rights Tribunal has concluded that discriminatory funding for child welfare has to end, and that substantive equality in the provision of services is now a requirement of the law. While implementing this decision is taking time, there is no doubt at all that the principles are well set - and will have huge implications for the future of the nation to nation relationship.

In addition, governments across the country are starting to embrace the ideas of revenue sharing that began in Ontario with the casino revenue agreements negotiated by governments led by all three provincial parties.

What does this mean for the next government? The realities of these decisions and precedents mean that provincial political parties cannot fall back on old policies and old ideas. If they do, they will be met by fierce battles in the courts, battles which will be won because of the strength of previous legal decisions. There is no going back - any provincial government will have to embrace a modern relationship, and be willing to even take further steps along the path to true reconciliation.

A recent Supreme Court of Canada decision involving Treaty 3 has made it crystal clear that the provincial Crown is just as much bound by the obligations of the Crown as the federal government. And the province is equally bound by the need to recognize the failures of the past.

What does this mean for the next government? Any new government has to honour the nation to nation understandings that have been reached, and to extend them into new areas. For example, while Ontario has made some progress in the areas of resource development consultation, for example, there is still a need to take matters further. A truly equal partnership has yet to be created, and it will be up to a new provincial government to take real steps to ensure rights to self government and jurisdiction are fully respected.

All governments require three things: land, jurisdiction, and revenue. First Nations governments - recognized as “an order of government” at Charlottetown in 1992 - have never been granted these basic necessities by either the federal or the provincial governments. Ontario could play a key role in showing the way nationally by declaring its willingness to engage in discussions with both the First Nations and the federal

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government that would remedy the institutional poverty that has marked the life of so many First Nations.

Ontario has additional responsibilities because of the fact that so many indigenous peoples are living in towns and cities where the federal government is largely absent. Issues of daily discrimination have to be dealt with - in education, housing, health, and social justice issues. New opportunities for imaginative partnerships in governance will need to be addressed. Again, these are issues which will not go away, and have to be embraced as part of the journey of governing the province.

Above all, the next Premier and the next government have to be prepared to lead a public dialogue that is essential to get to a better place. Many people are not fully aware of our history as a country and province, of how deeply ingrained discrimination has become, or what it means to be a treaty people. Hearts and minds sometimes need to be engaged, and changed. That moral leadership is what makes forging a new relationship possible, and is perhaps the most important role that can be played. It will be up to the people of Ontario to decide who is best equipped to provide that leadership.

Submitted by: Bob Rae, Former Premier of Ontario & Partner of OKT Law

Land, People, Prosperity; Treaties, a matter of Ontario’s Identity Treaties in Ontario are far more relevant than most would give recognition – that’s a problem that must be addressed by all treaty partners. It is a simple fact; to deny treaties is to deny one’s own identity. Whether you are a sovereign Indigenous person from one of the 133 First Nations in the Ontario, or whether you are a Canadian living in the province of Ontario – the ground that Ontario sits upon is subject to treaty. How much does anyone view the world around them through the lens and perspective of treaties? A glaring challenge facing treaties in Ontario is that First Nation governments are continually in a futile power struggle against colonial governments to “formalize” treaties outside of the courts. Another, but more obscure issue, is a lack of a common understanding of treaties in the mainstream, and unfortunately this lack of understanding is also prevalent in our own communities.

The majority of people in Ontario have no clue that treaty was a foundational requirement in the creation of Canada. Undoubtedly, it would serve all treaty partners well to have a better grasp on treaties in Ontario. Truth be told, full treaty recognition would mean an upheaval of major systems like the national economy, environmental laws, and a re-formatting of a multitude of government institutions. Canada’s fiscal reality, in fueling its federation, and the obese control that its governments have over indigenous lands, would be quite different than they are today today.

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The point is that, if the treaties were implemented judiciously, First Nations would be amuch more relevant and prominent decision maker and authority in this country. It just doesn’t seem to be a pragmatic approach for Crown governments to consider; who in reasonable fairness would have to give up land that doesn’t belong to them, implement restitution formulas in the trillions of dollars to First Nations, and further, the Crown would also have to agree to a full and staged withdrawal of control and assumed jurisdiction over our lives. This is the federal government’s rationale for deferring to the principle of ‘national interests’ justifying the infringement on First Nation rights.

Suffice it to say, despite an ideal First Nation scenario not being recognized by most, First Nations must continue to push to reshape a relationship that is based on reciprocity and formal recognition of Indigenous laws. We must continue Advancing Our Nations, with treaties being a formal function of how First Nations and colonial governments relate to each other – co-existing in the way of the Two-Row Wampum.

In recent months the Federal liberals, headed by Justin Trudeau, stated that his government intends on introducing legislation and a framework on rights recognition before this term in office is up in the fall of 2019. This has caught the attention of those that have been at the forefront of the protection of inherent and treaty rights for decades. Our First Nation knowledge keepers and legal experts are wary and are questioning some of the fundamental issues like how the federal government will engage rights holder Nations while avoiding an aggregation of a one-size fits all legal perspective of very diverse elements of Indigenous laws of our Nations. Another concern is obvious; if Canada truly respects Indigenous laws and nationhood rights of First Nation people, why would it be necessary, or how would the confinement of treaties be possible, in Canada’s legal framework?

The time for understanding the context and complexities of treaties is certainly upon us. On the other hand – we shouldn’t lose the simplicity and clarity of obvious principles like sharing, recognition of Indigenous sovereignty, protection of the rights of the next generation, etc. Indigenous nations that entered into treaty are vastly knowledgeable beyond the treaty context in the 21st century to include the broader perspectives of international recognition of treaties and the community-based

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much more relevant and prominent decision maker and authority in this country. It just

perspectives of indigenous law systems prior to contact that evidence the foundation of ‘inherent jurisdiction.’

What did our ancestors aspire for this generation and beyond, when bringing their inherent jurisdiction into treaty? What was the spirit and intent of their efforts? Certainly the spiritual connection to that land is evident in most accounts of the petitions that they orated. A deep concern for our people is always an evident part of passionate presentations that are documented, showing their duty and protection of nationhood. Unfortunately the concept of prosperity is where we see a deep divergence of understanding and usually conflicting views about the concept of wealth and issues like land ownership; and impacts to environment. Today this is the basic impasse that is often the result of confrontation or litigation. Here in the province of Ontario, which is covered exclusively by treaties, there is no shortage of grievance and demand for First Nation justice on matters of treaty.

Advancing Our Nations As the federal government’s plans unfold over the next several weeks and months, we’ll need to work hard as First Nations to frame a rights-recognition understanding so that ‘Advancing Our Nations’ is done with a clear grasp of First Nations treaties in Ontario. Representing the voice of the rights holders can only be done at a ‘community-level’ where history is embedded, languages are coded in the physical and spiritual connection to the land, and where the legitimate sovereign nations continue to maintain occupation and jurisdiction of specific territories that subject to the treaties.

As we proceed toward responding to the federal family on how it sees ‘rights recognition laws’ being developed, we must always remind them about their misperceptions about treaties. To that end, we must resist the colonial interpretation of treaties in Canada. The Idle No More movement began a reawakening that, in the opinion of most, should continue to unfold because of the urgent need for the protection of the human right to water, the need to address food insecurity, and growing pressures to address the issue of abject poverty in our First Nations.

As the planet continues to change and as it responds to the impacts of over-exploitation and dangerous carbon uploading into the atmosphere, we all wonder what can we do? How do we contribute to a better world; a planet that heals from this destructive path of inconsiderate use of resources?

Our Ancestors, who sought to find answers, turned to the protocols, traditional teachings, and ceremonies. When they entered treaty negotiations and finalized their decisions, in most cases it was the spiritual process that helped to ensure there were good decisions made; and given the fact that we are still able to maintain our principled positions on matters of inherent jurisdiction, underpinning the treaties, tells us that our Ancestors knew, and did right by the treaty rights of this future generation.

Submitted by: Isadore Day, Wiindawtegowinini, Ontario Regional Chief

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Let’s Have Another Look at a Treaty Commission in Ontario Just after an October election, in 2003 Premier Dalton McGuinty announced that there would be a public inquiry into the shooting death of Dudley George (September 6, 1995) at Ipperwash. This tragedy happened after years of protests by the Chippewas of Kettle and Stoney Point and an occupation that was ended by a police raid ordered by then Premier Mike Harris. The Chippewas of Kettle and Stoney Point held many land grievances surrounding the early creation of Ipperwash Provincial Park and the expropriation that led to the WWII creation of Camp Ipperwash. The inquiry closely examined land claims and natural resources policy in Ontario that led to this tragedy.

Now that we are nearing the 11th anniversary of the May 31, 2007 release of the Ipperwash Inquiry Report by Justice Sidney Linden, it may be the better now “than never” -- that First Nations in Ontario take a clear and decisive look at the recommendation to have a treaty commission in Ontario. With a friendlier Ontario government, First Nations in Ontario have achieved quite a bit in terms of a better relationship over the past 12 years.

However, the return of lands continues to be a very long, drawn-out, expensive and one-sided approach to decision-making and final say. The legal untruth of “Crown lands” in Ontario continues to create a “have” and “have not” population in Ontario because of wide-spread and wilful ignorance around solemn treaties. In addition, recent negotiations around jurisdiction, which was broached in the First Nations and Province of Ontario’s Political Accord, have required provincial and federal legislation to implement any legal recognition.

Clearly, the common law contains arguments about the pre-existing Indigenous legal orders being outside of ss. 91 and 92 powers in the British North America Act, 1867:

Thus, what was distributed in ss. 91 and 92 of the British North America Act was all of (but no more than) the powers which until June 30, 1867 had belonged to the colonies. Anything outside of the powers enjoyed by the colonies was not encompassed by ss. 91 and 92 and remained outside of the power of Parliament and the legislative assemblies just as it had been beyond the powers of the colonies. Campbell et al v. AG BC/AG Cda & Nisga'a Nation et al., 2000 BCSC 1123 at para. 76.

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ONTARIO FIRST NATIONS YOUNG

PEOPLES COUNCIL

SARA MAINVILLE & CAROLYN BENNETT

IPPERWASH INQUIRY

CHIEF DEAN SAYERS

What this lower court decision has explained is that the common law is multi-juridical. It includes more than the English common law tradition, the laws of Canada includes Indigenous legal orders and the French civil tradition in Quebec. Therefore, while section 92 was important to protect the Quebec civil law tradition, jurisdiction did not end with the division of powers. There were pre-existing societies that had their own laws, customs and traditions. Therefore, there is something that we will need to protect as we reconsider this Treaty Commission in Ontario. The Commission itself cannot be entirely reliant on Ontario and Canada to create this institution of treaty reconciliation. First Nations in Ontario must also breathe life into the institution to make it a legal and legitimate force about inter-social law, which is really and fundamentally what early treaties were about.

A Treaty Commission in Ontario may be structured so that it includes Indigenous legal traditions and perspectives on Indigenous treaty making. The view that our treaties are international agreements cannot be discounted. There is a depth and breadth of understanding of treaties that can be found in the early section 35 court decisions, unfortunately the Canadian courts have ignored this rich understanding in recent consultation case-law.

An example that I often go back to is the case of Sioui, an example of the common law understanding of treaties as intersocial (shared jurisdictional) law is below:

The British Crown recognized that the Indians had certain ownership rights over their land, it sought to establish trade with them which would rise above the level of exploitation and give them a fair return. It also allowed them autonomy in their internal affairs, intervening in this area as little as possible. R. v. Sioui, [1990] 1 S.C.R. 1025 at p. 1055.

The above passage must be revisited again and again with federal and provincial Crown governments. “A fair return” for trade was the promise of the very early treaties with European-sovereign Crowns. These Crown representatives were always reminded that they were not sovereign in our territories, they were visitors and foreign governments, at most military allies and trading partners. There were no land agreements in these early treaties, and the argument that the British North American Act did something to Indigenous jurisdiction in 1867 was rejected in many Courts including Campbell v. BC quoted above.

The United Nations Declaration on the Rights of Indigenous Peoples could be a life force for this new Treaty Commission in Ontario. As an independent Commission, the TCO could assist both the provincial and federal governments deal with land, law, and resource revenue issues within treaties in Ontario. Two key articles in the UNDRIP are listed below.

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Also now that Canadian governments have rediscovered the Royal Commission on Aboriginal Peoples there are many recommendations about the early treaties in volume 2 and the need to be honest and truthful about what the treaties actually mutually agreed to. More importantly, several recommendations about negotiating “sustainable” land bases, beyond reserves for First Nation-based governments was a major recommendation in RCAP. The TCO priority work would need to reaffirm several findings in both RCAP and Ipperwash about the fiction of surrenders in early treaties. RCAP says do not rely on the English treaty document if that document was not clearly explained and consented to by the Indigenous peoples involved.

“During the negotiations required to complete the treaties, it stands to reason that the Crown should not assert that the Aboriginal title of the treaty nations has been extinguished unless there was clear consent. On the other hand, the treaty nations, having undertaken an obligation of sharing in good faith, must not take any steps that contradict the spirit and intent of a partnership predicated on those principles. Both parties are therefore under constraints, stemming from their treaty obligations, in negotiating the completion of the treaties.”

This would require several inquiries: what was the Aboriginal tenure that was created through land sharing treaties? Was resource revenue sharing a commitment that can be rediscovered for Indigenous peoples in Ontario? How do we ensure that treaties continue to be implemented in a way that disputes can be resolved honourably in the future? Having the TCO consider these and other questions, to give us some fundamental truths on treaties in Ontario is a clear path forward to reconciliation for our peoples.

Article 26 Article 28Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.

Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.

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Finally, the Truth and Reconciliation Commission has call to action 50, which calls on the government(s) to create Indigenous Law institutions in partnership with First Nations. This law institute(s) in Ontario could also be coupled with the idea of the Ipperwash’s call for a Treaty Commission in Ontario. This again, would be helpful in lifting up our law and jurisdiction so that it is at the forefront of treaty analysis.

The recommendations in the policy analysis section of the Ipperwash report start out with 13 recommendations about a Treaty Commission in Ontario. This is reproduced in this newsletter for the consideration of First Nations in Ontario.

Report of the Ipperwash Inquiry (Policy Analysis) Recommendations: 1. The provincial government should establish a permanent, independent, and impartial agency to facilitate and oversee the settling of land and treaty claims in Ontario. The agency should be called the Treaty Commission of Ontario.

2. The Treaty Commission of Ontario should be established in a provincial statute as an independent agency reporting directly to the Legislative Assembly of Ontario. The Treaty commission of Ontario should have permanent administrative, legal, and research staff and should be fully independent from the governments of Canada, Ontario, and First Nations. The statute should specify that the purpose of the Treaty Commission of Ontario is to assist Ontario in discharging its treaty responsibilities.

3. The provincial government should make every reasonable effort to establish the Treaty Commission of Ontario with the full cooperation of the federal government. If that is not possible, the provincial government should establish the Treaty Commission of Ontario on its own in cooperation with First Nations in Ontario.

4. The governments of Ontario, Canada, and First Nations should jointly select the head of the Treaty Commission of Ontario – the Treaty Commissioner of Ontario. The selection process should be set out in the statute following discussions among the parties. The Treaty Commissioner should serve for a fixed but renewable term and

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should be removed only upon agreement by First Nations and the Legislative Assembly of Ontario.

5. The Treaty Commission of Ontario should be inaugurated in a prominent and ceremonial way. The ceremony should recall the 1764 Treaty of Niagara and renew its promises of mutual support and respect.

6. The Treaty Commission of Ontario should be given a four-part, strategic mandate:

a. The TCO should be given the authority to assist governments and First Nations, independently and impartially, in developing and applying a wide range of tools and processes to clarify and settle issues in an expeditious and cooperative way. In furtherance of this mandate, the TCO should be given the authority to prioritize, consolidate, or batch claims, in whole or in part, to encourage joint fact-finding and historical research, to identify and find consensual ways of dealing with issues common to claims associated with a particular treaty or region, and to promote interest-based settlements.

b. The TCO should be given the mandate to improve the efficiency and cost-effectiveness of the land claims process in Ontario. The TCO should be given the authority to work with parties to establish and publish benchmarks for processing claims and to require parties to use various forms of dispute resolution, binding as well as non-binding, when the benchmarks are not met.

c. The TCO should be given the mandate to make the claims process accountable and transparent to Ontarians. d. The TCO should be given a broad mandate to undertake public education about treaties, treaty relationships, and land claims in Ontario. The TCO should be given the specific authority to develop programs about treaty history designed to be part of the Ontario school curriculum.

7. The provincial and federal government should commit sufficient resources to the TCO to enable it to achieve its objectives.

8. Access to the Ontario land claims process should depend entirely on whether the documentation filed by the First Nation provides prima facie evidence that there has been a breach of the legal obligations of the Crown.

9. The provincial government should improve public education about its land claim policies.

10. The provincial government should commit sufficient funds to enable the Ontario land claims process to resolve claims within an acceptable period. This includes funding for First nations to participate in the land claims process and for compensation for breaches of legal obligations by the Crown.

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11. The provincial government and the TCO should work together to develop a business and financial plan for the Ontario land claims process. The objective would be to estimate the resources needed to resolve claims and to meet reasonable benchmarks during the land claim process.

12. The federal government should cooperate fully with the provincial government and First Nations in Ontario to establish the Treaty Commission of Ontario and promote its effectiveness.

13. The federal and provincial governments should work with the TCO and any equivalent federal agency to improve the efficiency, effectiveness, and fairness of the federal and provincial land claim processes. Together, they should undertake to do the following:

a. establish a common registry for federal and Ontario land claims.

b. establish a dispute resolution process that includes access to non-binding and binding resolution.

c. use binding arbitration to determine the legal liabilities of the federal and provincial governments.

d. develop common or consistent benchmarks and policies for federal and Ontario land claims.

The provincial government should make every reasonable effort to seek the federal government’s cooperation on these issues. If that cooperation is not possible, the provincial government should proceed to address these issues on its own in cooperation with the First Nations in Ontario.

Submitted by: Sara Mainville, Partner of OKT Law

Taking Back the Power: Leading the “Recognition of Rights Act” and Pushing Out ‘Recognition’ What to do about the Federal Government’s promised recognition of rights act? Rather than respond to Canada’s draft statute (yet to come), it makes sense to take the reins and draft a version of legislation that First Nations say Canada should follow. That would involve two things: taking back the power by taking the lead; and then pushing out the concept of “recognition”.

The horrid legacy of colonialism is that it is not just a legacy. It still exists. The eyes can see it through the gross disparities between health-indicators (both individual, and community) for First Nation populations as compared to non-indigenous populations:

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houses with gaping holes in the walls in frigid climates; mould crawling through thewalls of schools where little kids sit for hours each day; brown water glugging out of the taps; rickety bridges and unsafe roads. Etcetera. Etcetera. Etcetera.

But perhaps the worst such indicator is the incidence of suicide and attempted suicide. Most interesting are some preliminary studies, that compare suicide rates between indigenous communities that are taking the power back (through various means such as rights and title litigation, direct action, development of indigenous laws, etc.) and those that are not engaged as much in these pursuits. OKT Law presented this evidence in the landmark injunction case of KI v. Platinex, to argue that the sociocultural effects – including suicide -- of having had control over one’s fate and future stolen away, is a form of irreparable harm. We won a precedent-setting interim injunction (albeit the judge’s reasons were centred on other facts).

The thrust of the research we relied on, and the argument we made, is that a key underlying cause of social, economic and cultural pain experienced by indigenous peoples, is imbalance of power. Or, the taking of power by the Crown from First Nations.

The Crown did take, through multiple generations of a self-perpetuating or self-actualizing process. Power self-begets. The more power one feels one has, the more one acts as if one actually has it. Others respond by paying homage to that posture of power – listening, respecting, following, even fearing. The more that others pay homage, the more power one actually accumulates.

Power is neutral. It is like a dollar bill. It can be used for good or bad or both. Humans everywhere are both. We can and do act badly, often enough, and likely always have and always will. So if humans are always going to behave badly at least some of the time, a good way to ensure one group of humans does not act badly to the denigration or destruction of another group, is to ensure a balance of power.

We are far from that in what some refer to as Canada. The great treaty vision, back when the first colonial governors and emissaries started arriving from across the Atlantic, was shoulder to shoulder equal power. Peace and friendship alliances, trade pacts, “co” management and use of resources.

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But the great vision of treaty became blurred by greed, and morphed into the great deceit of “cede and surrender”: conquest by the pen. Or so Canada thought, and apparently still thinks. As laudable as many of Prime Minister Trudeau’s words and promises are, they are still inflected with the imbalance of power that is endemic to colonialism. Words like “recognition” are a part of this. That is a power-loaded power. It says “You don’t really exist, or your rights don’t really exist, until I say so – when I recognize you.” Yet that is a fallacy. If a tree falls in the forest, it still falls whether I see it or not.

In his speech to the House of Commons earlier this year, the Prime Minister stated:

It’s been more than 20 years since the Royal Commission on Aboriginal Peoples called for “the recognition of Aboriginal Peoples as self-governing nations with a unique place in Canada.” And last year marked 35 years since Aboriginal and treaty rights were recognized and affirmed through Section 35 of the Constitution Act.

The word “recognition” is repeated several times. First Nations are placed in the position of dependent – on the Crown, to be recognized.

This perpetuates rather than corrects the imbalance of power. So too does being compelled to respond and react. React to what?: the lead taken by someone else.

How often have First Nations been forced to defend the rights they have always had , when charges are laid for hunting or fishing against members, or when status is denied by bureaucrats applying racist and sexist identity rules? The very fact that it is the Crown government making determinations about what comprises the culture of an indigenous people, or who comprises their citizenry, is the height of imbalance of power – the living legacy of colonialism.

Yes, First Nations can and do use the Crown court system, but that is to enforce rights (as against he Crown – which is clearly bound by the Canadian/Crown courts) we all know First Nations have always had, rather than to seek recognition of them. It must be this way. The very basis of what Canadian law refers to as “aboriginal rights” is inherency. Inherent simply means being “in here” – and inherent rights derive from being in here, in this place in the world the Creator placed one, to survive and protect for seven perpetual generations into the future.

Since the Creator placed First Peoples in this place in the world at a time beyond memory, such inherent rights have existed. First Nations prior to European contact, would likely have thought of them as responsibilities, but the point remains. Treaty rights themselves derive from, and modify, inherent rights.

Inherent rights by definition do not depend on another nation or entity to recognize them.

So, rather than respond to a draft “rights recognition” law, handed down from the Crown, perhaps First Nations would consider that this is a good opportunity to do away

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with both the position of response, and the aspect of recognition by the Crown. Instead, First Nations could turn the tables and draft a “Restitution and Responsibility Act” that the federal government could pass to govern itself. This puts the Crown in the position of having to respond. Such an Act could and should address:

• Creating the balance of power: restitution to make First Nations equal to the Crown in resources and capacity (lands, resources, monies compensating for their taking in the past and earned therefrom through royalties etc. in the future);

• Maintaining the balance of power: a regime of responsibility or authority for decision-making whereby Crown and First Nations have equal decision-making power in matters of national (First Nation, and Crown nation) survival and identity (the four pillars of nationhood: governance, lands/economy, population, and jurisdiction / inter-jurisdictional rights).

This “recognition of rights” promise by the Crown is an important opportunity to take back power, by taking the upper hand (or the lead, or the reins) and using it to throw out recognition from the rules of the relationship.

Submitted by: Kate Kempton, Partner of OKT Law

Next Issue The third COO-OKT newsletter will focus on some very important legal issues and tools for your negotiations toolkit including the concept of process and implementation frameworks. It will also continue to update you on at least one or two court cases we expect to hear about in the near future.

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Ontario Treaties Recognition Week, November 2017.