Canadian Lawyer by Karen Busby 19 September 2016
Centennial fever gripped Canada in 1967. The national celebration of our country’s 100th birthday left Canadians with rich physical legacies, such as concert halls and cultural centres, and, more importantly, a deep sense of civic pride and regional dynamism. But there seems to be little excitement about Canada’s 150th birthday. Few institutions or people are asking, “How can we ensure that 2017 fosters pride and an engaged citizenry?”
Bucking this trend is the Assembly of First Nations. At its July 2016 Annual General Assembly, the AFN resolved to call on Parliament to formally recognize and celebrate the important roleindigenous peoples played as founders of Canada and to commit to enhancing this role going forward during the sesquicentennial celebrations. In a post-Truth and Reconciliation Commission world, these suggestions are worth considering.
Most Canadians have been taught that Canada emerged from a robust pact between the two founding peoples: the English and the French. Ever since the Articles of Capitulation of Quebec were signed in 1759, various instruments and institutions have recognized and actively supported the language and religious rights of the minority English Protestants and the French Catholics.
We have also found ways for different legal systems to co-exist. Canadians and Quebecers are rightly proud of how we have managed to negotiate our way to a more peaceable union between our so-called two solitudes, even if at times this process was messy. Thinkers from around the world point to Canada as a model for how to ensure the protection of group rights regarding language, religion, governance and legal pluralism. All Canadians would benefit from thinking about and celebrating what it is that we do well as a nation.
Yet we all know that the “two founding peoples” idea only tells part of the story. It ignores the fact that indigenous peoples are the original peoples of this territory and it marginalizes the central role played by them in the formation of Canada.
As the AFN resolution notes, indigenous peoples generously provided land, knowledge, military and other support without which colonial life could not have been sustained. Indigenous peoples were essential to the fur trade, which was the economic backbone of the economy for more than 250 years. Much of Canada’s present wealth — forestry, mining, agriculture, hydro — is drawn from the large tracts of land that were the subject of treaties between indigenous nations and the Crown.
Recognition and celebration of three founding peoples would lead to a better understanding of the essential contributions made by indigenous peoples to the creation of a great country.
More fundamentally, the under-inclusive “two founding peoples” idea permits Canadians to ignore the constitutional commitments made by indigenous and pre- or post-Confederation governments, such as the Royal Proclamation of 1763 and its companion, the 1764 Treaty of Niagara, the peace and friendship treaties and the numbered treaties signed between 1870 and 1921.
The foundational premise for each of these commitments is that indigenous peoples were and would continue to be self-determining nations with distinct cultures, languages, laws, traditions and relationships to the land. However, the promises made in these instruments have not been honoured ,and this failure, coupled with the other impacts of colonialism, has, by almost any measure, been devastating for indigenous peoples.
Recognition by Parliament of indigenous peoples as founding peoples of Canada is, therefore, only a first step. The AFN suggests many other steps that the Canadian government can take to forge a new relationship that respects the spirit of the Royal Proclamation, 1763 and the subsequent treaties.
Some of the suggestions are so easy to implement that there is no excuse for not moving forward immediately. For example, as a matter of policy and protocol, the federal government should promote and celebrate the understanding, within Canada and abroad, that the diverse cultures, customs and languages of indigenous peoples comprise a fundamental characteristic of Canadian heritage and identity.
Other steps are relatively straightforward but may require more time and thought. We know, for example, that we need to find ways to promote the full and equitable participation of indigenous individuals and communities in all aspects of Canadian society including openness to shaping Canadian society using indigenous values and priorities. The possibilities here are exciting. For example, how might we approach the protection of fresh water sources if we understood water as having a living spirit?
Some steps set out in the AFN resolution are complicated and may be unsettling or expensive. However, especially where Canada has bound itself to realizing specific commitments, it should move ahead on them — if only because the rule of law requires nothing less. For example, recognition and respect for the right to indigenous self-government is complicated and will mean different things to different communities. But as indigenous peoples living in Canada have never fully ceded the right to self-government, we need to figure out a way to realize this right in a way that makes sense in the current era.
If we can take concrete steps toward the recognition of indigenous contributions to the founding of Canada and start thinking seriously about how to achieve unmet commitments and reverse the effects of discriminatory policies, the 150th birthday celebrations will create an extraordinary legacy for all Canadians.
Karen Busby likes to write about sex, politics and religion. She is a law professor and director of the Centre for Human Rights Research at the University of Manitoba as well as author of Manitoba Queen’s Bench Rules. She can be reached at Karen_Busby@umanitoba.ca.