Posted on: February 26, 2018
Framework for Indigenous Rights in Canada
As many of you will have seen in the news recently, Prime Minister Trudeau has proposed a Framework for Indigenous Rights in Canada (the “Framework”) and indicated that it will be “new legislation and policy that will make the recognition and implementation of rights the basis for all relations between indigenous peoples and the federal government going forward.” The Prime Minister has indicated that the Framework will include “new measures to support the rebuilding of indigenous nations and governments, and advance indigenous self-determination, including the inherent right of self-government.”
The proposed Framework may ultimately address decades-old issues that have remained unresolved by past federal governments. The federal Liberal’s attempt at reducing title and rights-related litigation and advancing reconciliation represents a welcome new approach from Ottawa. However, the Framework will have a significant impact on resource development in Canada, and there are many issues to work through.
For example, how the Framework addresses “recognition” of indigenous rights is going to be significant. One thing is clear: simple acknowledgment of any claimed interest in indigenous rights would raise issues of jurisdictional uncertainty and the prospect of First Nations enjoying veto power over resource development. For this reason, the federal government will no doubt engage in broad-based consultations with stakeholders to hammer out the terms of the Framework.
Another issue in structuring the Framework centers on whether the federal government will distinguish between indigenous rights associated with ‘treaty’ as opposed to ‘non-treaty’ lands. Canada will have to determine how the contemplated “recognition” applies to treaty first nations who continue to claim indigenous rights. The Supreme Court of Canada has previously confirmed that First Nations have given up claims to indigenous rights in return for treaty rights.
The interplay between the new Framework and existing Canadian law will be interesting to follow over the next months and years.