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Meaningful Consultation in Canada: The Alternative to Forced Aboriginal Assimilation

United Nations’ Recommendations on the Duty to Consult

Amnesty International - Canada: Submission to the UN Universal Periodic Review

Indigenous Children's Health Report: Health Assessment in Action

 

Last Updated September 15, 2015

Summary - Recommendations

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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 27 years since the Constitution Act recognized and affirmed Aboriginal rights, nothing has changed for the expression of Aboriginal 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 regulation that provided services and programming tools for Aboriginal assimilation still exist in Canada’s national infrastructure. These are now embedded forced assimilation barriers (EFABs) in Canada’s infrastructure 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. Canada needs a process that can remove EFABs and include Aboriginal rights in its national infrastructure. That process must include mechanisms to:

  1. Accommodate Aboriginal rights;
  2. Provide a new legal basis for its relationship with Aboriginal Peoples;
  3. Reconcile Canada with Aboriginal Peoples; and,
  4. Provide an Aboriginal culture database so that all Canadians can understand and respect Aboriginal rights.

 

 

The process Canada needs to reach these four objectives is Meaningful Consultation. A process for Meaningful Consultation has been described that is able to meet standards set out in Aboriginal law, Canadian Common Law, and by the United Nations. The process has four steps:

  1. Nation Consultation;
  2. Nation-to-Nation Consultation;
  3. Harmonization; and,
  4. Restoration.

 

Canada must accommodate Aboriginal rights in a “reconciled” national infrastructure framework. To accomplish this, Canada must include Aboriginal law, regulation 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 Aboriginal Nations. To reconcile Aboriginal infrastructure with non-Aboriginal infrastructure, Canada needs a working definition of culture-based Aboriginal infrastructure.

 

Most Aboriginal infrastructure was destroyed by Canada’s policy of forced assimilation. However, a diffuse remnant remains in Aboriginal Nations with a focal point through Aboriginal Elders. Consultation of Elders and Aboriginal Nations provides the knowledge and understanding of Aboriginal infrastructure needed to generate a working definition for culture-based Aboriginal 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 Aboriginal 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 Aboriginal Nation. It enables Aboriginal 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 Aboriginal rights into a reconciled national infrastructure framework. After EFABs are removed, the final Restoration step can occur.

 

Aboriginal law, regulation and roles must be legislatively placed into Canadian infrastructure and then infrastructure services must be operatively restored into Aboriginal Nations to complete the Restoration step. The Restoration step produces reconciled national infrastructure that respects both Aboriginal and non-Aboriginal rights.  

 

The policy of forced assimilation left most Aboriginal Nations with shells of their former institutions. These shells function as non-Aboriginal Canadian infrastructure utilizing Canadian law and regulation. Culture-based Aboriginal infrastructure roles were lost from these national institutions because Canada purposefully undermined Aboriginal law and regulation destroying the expression of these institutional culture-based roles. When Canada undertakes Meaningful Consultation with Aboriginal Nations to include Aboriginal law, regulation and roles into a reconciled national infrastructure, the pre-existence of Aboriginal 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 Aboriginal 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 Aboriginal history and culture by 201656. This will remove political overtones from initiating Nation Consultations while extending a firm promise for future reconciliation.

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Last Updated September 15, 2015