The question of how best to review and renew the relationship between Aboriginal peoples and the Government of Canada has recently been the subject of increased attention in Parliament, the Courts, and the media. Unfortunately, much of it has served only to highlight the lack of progress – even the regression – that has characterized the current government’s approach to this most compelling and urgent national priority. On Monday, for example, MPs debated interim Liberal leader Bob Rae’s motion calling for a formal and non-partisan approach of direct engagement with Aboriginals on a nation-to-nation basis; the Conservatives swiftly announced their intention to defeat it.
This comes on the heels of the introduction of the government’s second omnibus budget bill, which contains measures that Shawn Atleo, the National Chief of the Assembly of First Nations, has called “backsliding, undermining, and continuing threats and pressures on an already burdened population.” Indeed, Atleo’s criticism is but the latest in a series of recent high profile rebukes of government policies and practices with respect to Aboriginal peoples.
First, in September, the Ontario Court of Appeal ruled against the Justice Minister’s decision to extradite two Aboriginal Canadians to the United States in breach of the Canadian Supreme Court’s foundational Gladue principle, which holds that an offender’s Aboriginal status may be considered as a mitigating factor at sentencing as a way of trying to offset systemic discrimination, a protection not afforded under U.S. law. As the Ontario court put it, the Minister’s decision to extradite was “contrary to the principles of fundamental justice.”
Second, former Minister of Indian Affairs and Northern Development Jim Prentice called out his own Conservative government for its failure to adequately consult with Aboriginal communities about resource development. Prentice was referring specifically to the lack of consideration of Aboriginal perspectives regarding the proposed Northern Gateway pipeline – which cuts across traditional Aboriginal territory in northern British Columbia – despite the fact that the Supreme Court requires consultation and responsive accommodation. This constitutionally suspect policy will not only invite lengthy and expensive legal battles that will postpone – if not kill – the pipeline project, it is also profoundly disrespectful of – and prejudicial to – Canada’s First Nations, Métis, and Inuit people, and it will create yet another impediment to the relationship between Aboriginals and their fellow Canadians.
Third, a Report commissioned by the Department of Public Safety released recently found that, while Aboriginals account for just 4% of the Canadian population, one in three women in the federal correctional system is Aboriginal. The Report concluded that “the current state of over-representation of Aboriginal women in federal corrections is nothing short of a crisis,” noting the impact of “oppressive government policies and laws” – including the Conservative government’s “tough on crime” agenda – which “will only serve to further increase the numbers of imprisoned Aboriginal women and worsen the already staggering injustice experienced by Aboriginal peoples as a whole.”
Finally, the U.N. Committee on the Rights of the Child expressed its concern last month that Aboriginal children are dramatically over-represented in Canada’s criminal justice system. The Committee found that aboriginal youth are more likely to be jailed than to graduate from high school, and that Bill C-10 – the government’s omnibus crime bill – “is excessively punitive for children and not sufficiently restorative in nature,” while also not in conformity with the U.N. Convention on the Rights of the Child or other international standards. As well, the U.N. committee also rebuked Canada for failing to provide equal social services to Aboriginal children, particularly in the realm of child welfare, an issue that is now before the Canadian courts.
These juridical rebukes reflect fundamental shortcomings in the Government’s approach to Aboriginal issues, and underscore the need for a renewed commitment on the part of the Government – in concert with the Opposition – to Aboriginal justice and human rights. Indeed, many of Canada’s Native people are confronted with overriding challenges, from inadequate housing on reserves like Attwapiskat – where residents face winters without heating, plumbing, or electricity – to the plight of the Pikangikum First Nation, home to 90% unemployment and the highest suicide rate in the world. The federal government must commit resources commensurate with the magnitude of these challenges, and address Aboriginal issues in a spirit of collaboration and respect.
Unfortunately, the Conservatives have yet to treat Aboriginal concerns as a priority. Indeed, their Aboriginal policy – or lack of one – has been of a retrograde and even repressive character. The government began its first mandate by rejecting the Kelowna accord reached between Paul Martin’s government and First Nations leaders, an agreement that would have seen $5 billion spent on education, housing, health services, and economic development. Rather, they have allocated insufficient resources that have no hope of achieving the breakthrough Canadian Aboriginals need.
Since obtaining a majority in the 2011 election, the Conservatives’ “tough on crime” agenda – replete with mandatory minimum sentencing provisions – has had a disproportionate and prejudicial impact on the plight of Aboriginals, precluding judges from taking an offender’s economic circumstances into account as a possible mitigating factor. The government has abandoned restorative justice principles and alternative sentences that may be more appropriate in an Aboriginal context, thereby exacerbating the problem of Native over-representation in the prison population.
Moreover, last spring’s omnibus budget eliminated the Aboriginal Youth Suicide Prevention Strategy and cut funding to Aboriginal health programs. These cuts were at best ill-advised, given that the suicide rate among First Nations people is eleven times the national average, and that Native communities have disturbingly higher levels of infant mortality and lower life expectancies relative to other Canadians. The budget also restricted the environmental assessment process for projects like the Northern Gateway pipeline, making it more difficult for Aboriginals to express their concerns, as well as for their government to heed them.
All of this contrasts with the “Seven R’s” approach to Aboriginal concerns that I advocated as Minister of Justice, shared with my provincial and territorial counterparts – as well as with the Aboriginal peoples themselves – and that underpinned the Kelowna accord. This approach called for (1) recognition of Aboriginal peoples as the original inhabitants of our country; (2) respect for their distinguishable constitutional status as set forth in the Charter; (3) redress for past wrongs, which would include not just an apology for the residential school program, but concrete measures to compensate for its tragic legacy; (4) responsiveness to Aboriginal rights and sensibilities; and (5) representation, both in the sense of countering the over-representation of Aboriginals as victims and inmates in the criminal justice system, and their under-representation as court officials, law enforcement officers, and judges.
These first five R’s form the foundation for the final two: (6) reconciliation and (7) renewal. Ultimately, these are the goals that we must strive for, and they will only be achieved if the Government proceeds – on the Northern Gateway pipeline, on matters of criminal and social justice, and on numerous other fronts – by developing an authentic partnership with Aboriginal communities.
In 2006, when the Conservatives did away with the Kelowna accord – and thereafter repudiated its adoption by Parliament – they said that they would “work with aboriginal leaders and provinces and territories to develop a new approach with workable solutions.” Six years later, the development of that necessary partnership is honoured more in its breach than in its observance. In fact, as even Jim Prentice has acknowledged with respect to the pipeline project, “the Crown obligation to engage First Nations in a meaningful way has yet to be taken up.” The Conservative government must change course before its tenure becomes just one more impediment to the renewal of Canada’s relationship with its first peoples.