Misguided starting point for Indigenous negotiations | Nick Leeson and Christa Croos

By Nick Leeson and Christa Croos

Law360 Canada (June 20, 2023, 1:04 PM EDT) --
Nick Leeson
Nick Leeson
Christa Croos
Christa Croos
The 14 Indigenous governments and organizations in the Northwest Territories (NWT) currently negotiating treaties must feel that progress is painfully slow. The Northwest Territories government (GNWT) refers to these modern treaties as “Aboriginal Rights Agreements” or “ARAs,” which range from land and resource agreements to self-government agreements. These instruments are crucial for how the different Indigenous territories in the NWT are governed by Indigenous rights holders.

According to the 2019-2023 mandate of the GNWT, one of its key priorities is to “settle and implement treaty, land, resources, and self-government agreements.” This goal sets a clear commitment to resolve outstanding intergovernmental agreements with Indigenous peoples of the NWT. It also mentions updating and publishing territorial principles and interests to reflect the GNWT's new priorities and mandate.

Even though the GNWT has been negotiating ARAs with Indigenous Peoples of the NWT since 1975, only five ARAs have been concluded. Despite the GNWT repeatedly asserting that concluding ARAs are a top priority, few ARAs have been signed, and that doesn’t appear to be changing any time soon.

On April 18, 2022, in alignment with their mandate, the GNWT published a document titled Principles and Interests Guiding the GNWT at Aboriginal Rights Negotiations with Indigenous Peoples (Principles and Interests). Publishing the Principles and Interests fulfilled one of the GNWT’s mandate items for the 2019-2023 legislature, replacing the 1998 outdated policy document. But it has so far been met with apprehension. And the question remains: are the GNWT’s Principles and Interests ushering in a new era and a promising fresh start to these important negotiations, or are they doomed to repeat past mistakes? Regrettably, several aspects of the document suggest the latter.

Five old mistakes in GNWT’s principles and interests:

1. A lack of collaboration with Indigenous Peoples. One glaring omission in the Principles and Interests is the lack of collaborative development with Indigenous Peoples in the NWT or their representative institutions. This failure of collaboration is particularly disheartening when compared to other GNWT initiatives, like the recent co-development of the United Nations Declaration on the Rights of Indigenous Peoples Implementation Act (UNDRIP-IA) with Indigenous governments and organizations tabled earlier this year. Instead, this policy was formulated in the backrooms of government, alienating the voices that matter the most.

Not co-developing the Principles and Interests was a significant missed opportunity to include the interests and concerns of Indigenous Peoples in the NWT as it relates to how ARAs are negotiated. It also undermines the legitimacy and content of the Principles and Interests. If the GNWT truly wants to achieve significant progress in treaty negotiations, it must return to its roots of collaboration, co-development, and consensus with Indigenous Peoples.

2. Straying from UNDRIP. The Principles and Interests veer off course from UNDRIP, an essential international instrument for Indigenous rights. For example, principle number-two incorrectly labels UNDRIP articles as mere “principles” rather than “rights.” This lessens the significance of these rights and weakens UNDRIP’s role.

Principle number six says that the GNWT won't insist on “cede, release, and surrender” clauses in treaties anymore. While this is a long-overdue step in the right direction, it does not go far enough. True alignment with UNDRIP would involve acknowledging the invalidity of such clauses in past agreements, ensuring their removal from future mandates, and initiating reparative measures for past agreements that contained them.

Despite the well-deserved applause for the tabling of a territorial UNDRIP implementation law, the Principles and Interests fail to meet the standards set by GNWT politicians in their promises about reconciliation and implementation of UNDRIP.

3. Ignoring economic reconciliation. Economic reconciliation is not just a moral imperative, recognizing Indigenous rights and aligning them with UNDRIP, but also a promising avenue for mutual economic growth. The Crown, in all its iterations, must take responsibility for the chronic underfunding, exploitation of Indigenous lands and resources, and other colonial practices that have inflicted socio-economic deficits on Indigenous communities.

Principles 10, 11 and 12 emphasize predictability and transparency in natural resource development. However, they are silent on the economic benefits that should accrue to Indigenous Peoples from development on their territories. Economic benefits, seen as a form of reparative justice, should be explicitly integrated into these principles. This is crucial for economic reconciliation, helping to redress historic injustices and promote a fairer distribution of wealth.

Contrast this with the province of British Columbia’s Draft Principles that Guide the Province of British Columbia’s Relationship with Indigenous Peoples, published before the Principles and Interests. B.C.’s principle number-eight commits the province to fostering a "mutually supportive climate for economic partnership and resource development," ensuring Indigenous Peoples have fair and continuous access to their lands and resources. It also commits to ensuring Indigenous peoples share in the wealth generated from their lands and resources, an acknowledgment noticeably absent from the GNWT's Principles and Interests.

4. Caveat to commitment. The GNWT included a legal disclaimer at the beginning of the Principles and Interests, stating: “This document is without prejudice and cannot be relied upon for legal purposes.”

The Principles and Interests are, of course, already largely shielded from legal reliance as a high-level policy document rather than a law or regulation. So then, what message does the inclusion of this disclaimer send to the Indigenous governments and organizations about how GNWT intends to advance reconciliation? Not only does this cast doubt on the GNWT's commitment to advancing reconciliation and the reliability of the document's provisions, it breaks from  similar policy statements from the federal government (the Guiding Principles) published by the government of Canada and the province of British Columbia, neither of which contain such a disclaimer.

5. Subordination of Indigenous laws. Principles numbers 14 and three suggest that the GNWT believes Indigenous laws should accommodate and defer to Crown laws. Specifically, the latter asserts that the Canadian Charter of Rights and Freedoms should apply to all treaties by default. Such forced imposition of the Charter is currently a question before the courts. It assumes that Indigenous Peoples should accept governance by a framework they did not agree to, rather than their pre-existing Indigenous laws.

To genuinely decolonize Canadian law, we must acknowledge the existence of three equal sovereignties within Canada's diverse and multicultural federal framework: provincial, federal, and Indigenous. Each is equal in legal and constitutional terms within its respective sphere. Indigenous laws should not be assumed to be subservient to federal and territorial laws if the GNWT genuinely respects the self-determination of Indigenous Peoples.

Broken compass: GNWT’s defective roadmap for Indigenous rights negotiations

The GNWT's Principles and Interests do not meet the benchmarks established by other Crown governments and fall short of fulfilling the minimum rights outlined in UNDRIP. The published principles in other jurisdictions emphasize a commitment to self-determination, recognizing the legitimacy of Indigenous governments, and promoting economic collaboration, which is, unfortunately, lacking in the GNWT's Principles and Interests. These commitments are more than mere tokens of reconciliation but concrete actions towards equality and respect.

Despite GNWT's assertion that negotiations with Indigenous Peoples are a high priority, the Principles and Interests document suggests otherwise. In a region where half the population is Indigenous, it is shameful deceit to market northern tools and “made-in-the-North” templates for exportation to the rest of Canada when they do not even meet the standard other Crown governments have set. This misalignment puts the GNWT behind other governments in honouring Indigenous self-determination and rights recognition.

Without a significant revision to the GNWT's Principles and Interests to truly uphold UNDRIP and advance reconciliation authentically, there is a real risk of treaty negotiations merely perpetuating past mistakes. The GNWT must understand that their starting point dictates their journey's direction. If they begin with flawed principles, they risk journeying through a negotiation process that deepens divisions and misunderstandings rather than fostering a collaborative, respectful, and mutually beneficial environment that advances the cause of reconciliation.

Nick Leeson is a senior counsel with Woodward & Company LLP, a law firm located in Victoria, BC and Whitehorse, YK. His practice is based out of British Columbia, from where he represents Indigenous clients and interests from coast-to-coast-to-coast. Christa Croos is an associate with Woodward LLP. Her practice is based out of British Columbia, where she practises law for Indigenous client in the Northwest Territories and British Columbia.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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