Prime Minister Mark Carney is joined by members of his cabinet and caucus as he speaks at a news conference in Ottawa, after Bill C-5 passed in the House on June 20.Justin Tang/The Canadian Press
Aaron Christoff is a Cree citizen of Saulteau First Nations and a partner at Cochrane Sinclair LLP in Vancouver. Max Faille is also a partner at Cochrane Sinclair. Their forthcoming book is Full Circle: The Essential Guide to Canada’s Relationship with Indigenous Peoples.
Prime Minister Mark Carney has a contentious meeting this week with over 600 First Nation leaders in a bid to win their support for his nation-building ambitions embodied in Bill C-5 – the so-called Building Canada Act. This follows the filing of a constitutional challenge by a group of Ontario First Nations on Bill C-5 and Ontario’s similar Bill 5.
The Prime Minister would do well to recall what happened the first time one of his predecessors went down a similar path: Sir John A. Macdonald’s grand project to unite the then-new nation of Canada “by a ribbon of steel” – the Canadian Pacific Railway. Building the CPR required more than steel, spikes and rail ties. It required Indigenous consent.
Nine Ontario First Nations launch constitutional challenge against Bill 5 and Bill C-5
Under the common law and the dictates of the Royal Proclamation of 1763, the Crown was, and still is, bound to secure access to Indigenous lands only with their agreement, obtained at an open, public meeting of each nation. That express obligation was reiterated in 1870, when the young country of Canada sought to stretch its original, compact borders to include the vast territories that had, since 1670, been under Royal Charter to the Hudson’s Bay Company: what is now northern Quebec and Ontario, the Prairie provinces and large parts of the North – representing about half of Canada’s current total land mass.
Adding those lands to Canada required approval by the British Crown. That approval was given, but made explicitly contingent on Canada’s promise, formally given in the House of Commons in an address by the Prime Minister, to abide by the “equitable principles which have uniformly governed the British Crown in its dealings with the aborigines,” and to settle “the claims of Indian tribes to compensation” for the lands in question.
That consent was in turn imperfectly and incompletely secured, in the form of the historic treaties that stretch from Ontario to the Rockies: Wherever the railway would go, Canada first needed to negotiate a treaty and, for the most part, it did so. Each treaty was conditioned on promises made by Canada to the First Nation treaty signatories.
But if the Prime Minister has a rocky ride at the meeting, it is because those original promises remain massively unfulfilled.
Ottawa sped through law to fast-track major projects, but implementation is going slower
There is not a single Indigenous nation that didn’t have its treaty commitments breached by Canada. Not one. For the vast majority, outstanding treaty or other related obligations remain unfulfilled to this day, some 150 years after those solemn promises were made.
The treaties allowed Canada to become Canada; they are the basic real estate law of the land. The bargain has proven a providential one for Canada; less so for its original inhabitants.
In exchange for shared access to vast territories and their bountiful resources, the Crown agreed to provide modest compensation to the original landlords. Because the Crown couldn’t afford an upfront payment for the value it was acquiring, it opted instead to provide initial lump-sum payments and assistance (especially farming assistance), followed by smaller, but indefinite, annual payments.
But the promised farming assistance was incompetently administered and to a large extent never delivered, and the annual payments were never adjusted for inflation, remaining stuck at an unconscionable $5 a year per person.
Reserve lands that were promised to be set aside – carved out of the Nations’ astronomically larger territories – were never fully provided or were later cut down. The promised schooling that Indigenous nations rightly insisted on for their children (“education is the new bison,” it was and is still said) was instead twisted into an unfathomable, dystopian system of underfunded, overcrowded institutions replete with abuse, illness and death: residential schools.
Instead of scrapping Indigenous consultations, let’s make them better
While some of these countless broken promises have been addressed, most have not. Hundreds remain unresolved. And still, Indigenous nations, honourably, never reneged on their end of the bargain: the sharing of access to their vast and bountiful territories that make up Canada.
In significant parts of the country, Canada has left many nations outside of treaties altogether – including the Dakota on the Prairies and most nations in B.C. As our Supreme Court has repeatedly stated, where Canada has yet to negotiate agreement with underlying Aboriginal title and rights-holders, it hasn’t fulfilled its constitutional obligations, and needs to get on with it.
If Canada wants to secure the trust and support of Indigenous nations for a new round of nation-building ambitions, it would do well to start by aggressively addressing the unfinished business of fulfilling its original promises to them, outstanding some 150 years later.