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| Joan Jack |
From a transactional perspective, which dominates Canadian law and policy, anything is possible — so long as the right boxes are ticked, signatures secured and terms enforced. The Canadian legal system, rooted in British common law and contract theory, is predicated on this logic: define the parties, negotiate terms, settle obligations and enforce compliance. It is tidy, linear and ultimately reductionist.
In contrast, from a relational perspective — the foundation of most Indigenous legal traditions — we must first see what is possible, together. Our legal orders are rooted in relationships: with one another, with the land, with the spirit world, and with all living beings. Rights and responsibilities emerge from these relationships and are understood to be reciprocal, evolving and enduring. Agreements are not static but require ongoing renewal, ceremony and care.
The real problem is this: Indigenous peoples are still trying to live out the prenuptial agreement — our treaties — that define how we will be in relationship with Canada. But Canada continues to act as if it is finalizing the divorce. This mindset is especially evident in how governments approach the implementation of section 35 rights under the Constitution Act, 1982.
Whether asserting Aboriginal title or treaty rights — both of which are recognized and affirmed under s. 35 — Indigenous nations face the same roadblock: Canadian governments at both the federal and provincial levels operate transactionally. First Nations continue to operate relationally. This foundational misalignment is rarely, if ever, acknowledged in court decisions, policy tables or legislative drafting.
The result is a recurring pattern of legal and political frustration. We are continually pushed into agreements — Impact Benefit Agreements, consultation protocols, modern treaties — that prioritize transaction over relationship. These mechanisms are designed to manage risk, quantify liability and secure legal certainty for the Crown and corporations. They do not honour Indigenous legal orders as living, sovereign systems. Instead, they attempt to overwrite them.
As an Indigenous lawyer, I believe one of the most pressing and unspoken issues is that few lawyers or advisers — on any side — understand this relational worldview. Most lawyers advising First Nations were trained within colonial legal paradigms and have not decolonized their practice. Many are under pressure to deliver short-term outcomes in structures not designed to uphold long-term Indigenous interests.
At the same time, many federal and provincial lawyers and policymakers are incentivized to preserve Crown sovereignty by minimizing recognition of Indigenous jurisdiction. The “duty to consult and accommodate,” for example, has become more of a legal checkbox than a sacred obligation. Recent federal legislative proposals — such as Bill C-5, which seeks to fast-track project approvals — risk further displacing Indigenous voices in the name of efficiency.
But perhaps the deeper issue is one that rarely enters the legal or political conversation: the general Canadian public does not see us for who we are. We are the Indigenous peoples of these lands. We did not come from elsewhere. These are our homelands. Yet for over 150 years, the dominant narrative in Canada has been that any obligations owed to us — as the original landowners — have been extinguished, fulfilled or no longer apply.
As a result, Canadians largely do not recognize us as landowners in any meaningful legal or political sense. And if we are not seen as landowners, we are not seen as legitimate treaty partners or governments. This fuels a lack of public support for governments to engage with us on a true government-to-government basis. In short, the public misunderstanding of our place on these lands gives Canadian governments permission to continue relating to us transactionally — as stakeholders, not rights-holders.
What we need is not just more consultation. We need relationship renewal. This requires more than meetings, memos or litigation. It demands an honest reckoning with the original spirit and intent of the treaties. Treaties were not land surrenders. They were commitments to share, to coexist, to live together in peace and mutual respect. That is not a transaction. That is a relationship.
For reconciliation to be more than a slogan, Canada must move beyond interpreting treaties as contracts and begin honouring them as living, relational agreements. And we, as Indigenous nations, must continue to strengthen and assert our own legal systems, rebuild our governance and insist that our laws and ways of seeing the world are respected not only in words, but in legal and political practice.
The continued failure to implement s. 35 rights is not just a gap in political will or legal clarity. It is a failure to bridge the divide between two fundamentally different worldviews. Until that divide is addressed — in the courts, at negotiation tables, in Parliament and in public discourse — we will remain stuck in cycles of conflict, disappointment and broken promises.
Our ancestors entered into treaties in good faith. They didn’t agree to be ruled. They agreed to relate. And we are still here — upholding that vision.
I remember a conversation I had when I was in law school way back in 1989. A young man from the Toronto area, whose name was Norm, said to me, “You can’t talk like that, Joanne, or we won’t support you.” I responded, “Oh, I see — so there’s free speech in Canada for everyone except us Indians?” He replied, “Well, this isn’t your land anyway. You came across the Bering Strait.” I said, “Well, if you agree that the white law is ‘first in time, first in line,’ we beat you by at least 30,000 years — so back off.”
Joan Jack is an Ojibway woman and member of the Berens River First Nation in Manitoba. She is also married and adopted into the Taku River Tlingit First Nation in B.C. She is a mother to many children, a grandmother and auntie to many more. Besides being a lawyer and educator, Joan is an activist and is proud to say stands for Indigenous women always and has most recently created a private Facebook group to bring together Indigenous grandmothers and aunties and her group now has over 20,000 members and an average activity rate of over 80 per cent. Learn more here: www.nakinacall.ca
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