Ottawa's promised Indigenous rights bill not as advertised, says report from new think-tank

The federal Liberal government's promised Indigenous rights bill would likely do away with the Indian Act by coaxing First Nations into a "narrow model" of self-government aimed at suppressing Indigenous self-determination, according to a new report.

While few concrete details have so far emerged about the promised bill, a report issued Tuesday by the Yellowhead Institute warned First Nations should be cautious about its intent.

"We find that nearly all of Canada's proposed changes to its relationship with First Nation peoples neglect issues of land restitution and treaty obligations," said the report titled Canada's emerging Indigenous rights framework: a critical analysis.

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The report comes at a time of heightened tensions over Ottawa's decision to purchase the Trans Mountain pipeline which, while supported by some First Nations, is fiercely opposed by others. 

The Yellowhead Institute, based out of Ryerson University's Faculty of Arts, began its official operations on Tuesday. The new think-tank will provide a First Nations perspective on policy issues in support of "First Nation jurisdiction."

Anishinaabe scholar Hayden King, the executive director for the institute, said the Liberals are making moves on the Indigenous file at such a dizzying pace that it's hard to keep up.

"There is almost like a concerted effort to confuse First Nations on all these changes happening," said King, one of the co-authors of the report.

King said the report aims to cut through the Liberal spin around Ottawa's proposed Indigenous recognition of rights framework.

'An effort to mislead First Nations'

The report noted that the Liberals' rhetoric on the historic nature of its promised changes is often underplayed in policy documents.

"There is also a clear attempt to maintain a modified version of the status quo and, as such, an effort to mislead First Nations of the transformational nature of these changes," said the report, written by King and Shiri Pasternak, the institute's research director.

The federal government's moves on Indigenous rights seem focused on transferring administrative responsibility for service delivery to First Nations without reconstituting lost traditional land base or affecting federal, provincial or territorial powers, according to the report.

The federal government appears to favour aggregating First Nations to deliver education, health care and child welfare, while focusing on signing sector-specific agreements on issues like forestry and fisheries, instead of dealing with broader matters like self-government and land rights, said the report.

A Valentine's Day promise

Prime Minister Justin Trudeau announced in a Valentine's Day speech in the House of Commons that his government would introduce a bill to recognize Indigenous rights enshrined in Section 35 of the Constitution in federal law.

The recognition of Indigenous rights framework is expected to be tabled by the fall and passed before the next federal election, according to Indigenous-Crown Relations Minister Carolyn Bennett.

Bennett has been on a cross-country tour gathering input from First Nations on the promised framework she said is currently a blank slate.

Bennett said in an interview last week that the promised framework would be "co-developed" over the summer.

The minister has said that the new framework, once passed, would include an "opt-in" option, meaning First Nations can choose when to move out of the Indian Act and under the new legislative structure.

The Yellowhead Institute report suggests the opt-in avenue is a really an option without a choice.

"For those who object to this process, the Indian Act will likely remain in place, but with pressure to conform or be labeled 'dissidents' or criminalized," said the report.

An outline of the framework's intent was revealed by recently tabled bills, policy pronouncements and a major retooling of government machinery on the Indigenous file, said the report.

Outline emerging

The report analyzed several of these examples including Justice Canada's 10 principles, the splitting of the Indigenous and Northern Affairs department and the proposed legislative overhaul of the environmental assessment process, Bill C-69.

"These efforts are coalescing around a very narrow view of Indigenous rights and jurisdiction that is far short of what First Nations have been demanding," said the report.

On Bill C-69, the report said it makes no mention of the UN Declaration on the Rights of Indigenous Peoples and "limits" Indigenous participation.

Justice Canada's 10 principles were created to essentially guide Canada's relationship with Indigenous Peoples. The report found that while the principles talk of a new fiscal relationship and a constantly evolving approach responsive to the unique characteristics of each Indigenous community, it still falls short.

"They are innovative insofar as they do not stray far from pre-existing institutions and structures, which entrench the authority of the federal and provincial governments," said the report.

The report also cautions about the impact of splitting Indigenous Affairs into Crown-Indigenous Relations and Indigenous Services — the latter Ottawa hopes will be eventually be replaced by First Nations institutions.

The report said the move seems to weaken the link between rights and Ottawa's fiduciary responsibility.

"We are concerned that the federal government will now make a distinction between its constitutional obligations," said the report.

Ottawa is also expected to table a bill on the department split.