The headline on today’s CBC News website says “Indigenous leaders to boycott Monday’s meeting with premiers”. The article outlines how three Indigenous groups, namely, the Assembly of First Nations, the Metis National Council and Tapirit Kanatami, have decided to withdraw from the Council of the Federation meeting where the leaders of the provinces and territories will be meeting because they (the indigenous leaders) are not being recognized as full and equal participants. In my opinion, this article demonstrates the pressing need for Canada’s reconciliation process to recognize the governments of Indigenous peoples in a more formal and constitutional manner.

Whether the Indigenous leaders end up participating or not, the fact that they are not included as a matter of constitutional design shows the flaws in the current structure. I have noted in a previous post that the Indigenous peoples of Canada need to be formally and constitutionally included in the functioning of our central institutions. In the post “Required – A Redesigned Senate for Canada, its Regions and its Indigenous Peoples” (January 24, 2016), I pressed the point that at least one of our central institutions, the Senate, should be revamped bearing in mind that the aboriginal governments of the Indigenous peoples still exist and, to the extent that s. 35 of the Constitution Act, 1982 applies, are constitutionally protected and affirmed. In that post I stated:

Canada also underwent a constitutional transformation in 1982. One hears often about the Charter of Rights and Freedoms, a constitutional document that has fundamentally changed the relationship between the State on one hand and the individual on the other. Another set of rights were constitutionalized at the same time, namely, the aboriginal rights of Canada’s aboriginal peoples. Unlike the Charter of Rights and Freedoms in which there was an express balancing of governmental interests as against the individual rights and freedoms, section 35(1) of the Constitution Act, 1982 which dealt with aboriginal rights was structured differently. It stated simply:

The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

Since 1982, the indigenous peoples of Canada have increasingly had resort to the courts to give effect to these simple words. Most recently, in June 2014, the Supreme Court of Canada released a landmark decision, Tsilhqot’in Nation v. British Columbia, 2014 SCC 44. The Court relied on the 1982 protection afforded by s. 35(1) when the Court expressly recognized and affirmed the existing aboriginal title of the Tsilhqot’in Nation over a large tract of land in British Columbia. Moreover and most importantly, the Court confirmed that this title included the exclusive right to control and manage the occupation and use of the land. This ruling confirming the aboriginal right to control and manage the lands and their peoples is an express acknowledgement of the aboriginal right to self-govern.

There are hundreds of indigenous peoples across this country. While they have not all proven their aboriginal title as the Tsilhqot’in Nation has now done, there is no doubt that many of them will do so in the future. And these indigenous peoples all have rights to control and manage their lands according, presumably, to their aboriginal laws and customs. Thus, there is effectively a third order of government in Canada, one collectively comprised of the indigenous peoples. But, unlike the provinces and territories, this third order of government has no guaranteed representation in Canada’s national legislative bodies

Specifically, I argued that the Indigenous peoples of Canada should be treated as the third order of government in Canada and should be receognized as such in the Senate by being given a set number of seats in the Upper House:

Somehow, we need to give a guaranteed legislative voice to reflect the interests of the third order of government, the indigenous peoples, at the national center. A specific number of seats in the Senate should be allocated to the indigenous peoples of Canada to ensure that their concerns and interests are represented at the central legislative decision-making level. Thus, if asked whether the indigenous peoples should be considered to be treated effectively as another one of Canada’s region, I think that we need to respond “yes”.

While the Council of the Federation is not a formal constitutionally entrenched body, its existence and its function reflects the constitutional structure of the country. The complaint of the Indigenous leaders (the AFN, the MNC and the TK) is that they are not participants of this body as of right, that they are only there by grace of invitation.

As part of Canada’s reconciliation with the Indigenous peoples, Canada will have to make structural, constitutional changes to ensure adequate and proper participation within the federation for all participants, including Indigenous nations. Thus, the Senate, the House of Commons, the Supreme Court of Canada, perhaps even the structure of the provincial legislatures all need to be examined and considered so as to provide for full and real engagement by Canada’s indigenous peoples. The example of the Council of the Federation today just reflects the need for that deep, fundamental change.

I remain

Constitutionally yours,

Arthur Grant