Last Updated December 18, 2018
Summary - Recommendations
National infrastructure is a framework of laws, regulations, services, and roles that are used to create programs in fulfilment of rights; rights are guaranteed by laws, laws define regulations, regulations provide blueprints for services and roles, and services provide programs. Programs created from an infrastructure framework respect rights the infrastructure was created to express. Canadian national infrastructure was created without the recognition of Aboriginal rights to express non-Aboriginal rights. It is a non-Aboriginal infrastructure framework incapable of respecting Aboriginal rights in its current state.
In 1982, the Constitution Act recognized and affirmed Aboriginal and Treaty rights. Since that time a number of important events have occurred involving Aboriginal rights. They include:
Unfortunately in the 36 years since the Constitution Act recognized and affirmed Aboriginal rights, nothing has changed for the expression of Indigenous rights in Canada. Aboriginal rights have not been included into Canadian national infrastructure. The Canadian policy of forced Aboriginal assimilation was discontinued in 2008 but secondary policies, legislation and regulations that provided services and programming tools for Aboriginal assimilation still functioned in Canada’s national infrastructure. These are now embedded forced assimilation barriers (EFABs) that block the advancement of Aboriginal rights. As a consequence, Canada’s national infrastructure framework is incapable of recognizing Aboriginal rights unless EFABs are removed.
The Government of Canada announced federal Ministers would review federal legislation, regulations and policies to remove barriers to Aboriginal rights in 2017. In 2018, the Prime Minister of Canada announced a recognition and implementation of rights framework for Indigenous peoples in Canada. Unfortunately since 1982, it has become clear that Aboriginal rights granted by the Crown under section 35 of the Constitution Act have become an alternate rights regime that denies Indigenous Peoples in Canada their pre-existing sovereignty and Immemorial rights while preventing them from accessing their international right to self-determination.
Canada needs a process that can define Indigenous Immemorial rights and remove EFABs to these rights from national infrastructure. That process must include mechanisms to:
The process Canada needs to reach these four objectives is Meaningful Consultation. A process for Meaningful Consultation will be described that is able to meet standards set out in Indigenous law, Canadian Common Law, and by the United Nations. The process has four steps:
Canada must accommodate Indigenous Immemorial rights in a “reconciled” national infrastructure framework. To accomplish this, Canada must include Indigenous law, regulations and roles into national infrastructure, and, then provide services that allow Aboriginal roles to be fulfilled. This is accomplished by first harmonizing culture-based Aboriginal infrastructure with existing non-Aboriginal Canadian infrastructure and then building parts missing in Indigenous Nations. To reconcile Indigenous infrastructure with non-Indigenous infrastructure, Canada needs a working definition of culture-based Indigenous infrastructure.
Most Indigenous infrastructure was destroyed by Canada’s policy of forced assimilation. However, a diffuse remnant remains in Indigenous Nations with a focal point through Indigenous Elders. Consultation of Elders and Indigenous Nations provides the knowledge and understanding of Indigenous infrastructure needed to generate a working definition for culture-based Indigenous infrastructure. This Nation Consultation process is the first step in Meaningful Consultation. Canada needs the database created by Nation Consultation to fulfill all four Meaningful Consultation objectives. But, the objective to build a database on Indigenous culture is fully satisfied in the Nation Consultation step.
The second step in Meaningful Consultation, Nation-to-Nation Consultation, is a communicative platform between Canada and the Indigenous Nation. It enables Indigenous Nations to provide Canada with detail necessary for Canada to:
The Harmonization step removes remnants of the policy of forced assimilation, EFABs, that block the advancement of Indigenous Immemorial rights into a reconciled national infrastructure framework. After EFABs are removed, the final Restoration step can occur.
Indigenous law, regulation and roles must be legislatively placed into Canadian infrastructure and then infrastructure services must be operatively restored into Indigenous Nations to complete the Restoration step. The Restoration step produces reconciled national infrastructure that respects both Indigenous and non-Indigenous rights.
The policy of forced assimilation left most Indigenous Nations with shells of their former institutions. These shells function as non-Indigenous Canadian infrastructure utilizing Canadian law and regulation. Culture-based Indigenous infrastructure roles were lost from these national institutions because Canada purposefully undermined Indigenous law and regulation destroying the expression of these institutional culture-based roles. When Canada undertakes Meaningful Consultation with Indigenous Nations to include Indigenous law, regulation and roles into a reconciled national infrastructure, the pre-existence of Indigenous societal roles will be reconciled with the sovereignty of the Crown.
The Nation Consultation step is a pre-requisite step to all aspects of the Meaningful Consultation process. It is the only part of the process that can be separated and initiated on its own without triggering a full Meaningful Consultation process with an Indigenous Nation. This is because the Nation Consultation utilizes the same work to fulfill a dual mandate to:
It is recommended that Nation Consultations be initiated post-haste and performed by an NGO as part of the general mandate given by the Report of the Royal Commission on Aboriginal Peoples to develop a database on Indigenous history and culture56. By using the Royal Commission mandate, political overtones can be removed from initiating Nation Consultations while extending a firm promise for future reconciliation.
© Christian Aboriginal Infrastructure Developments
Last Updated December 18, 2018