Address by the Honourable Jody Wilson-Raybould, PC, QC, MP to the BC Leaders Gathering (Premier, BC Cabinet, and Chiefs of BC)

Notes for an address by
The Honourable Jody Wilson-Raybould, PC, QC, MP
Minister of Justice and Attorney General of Canada

BC Leaders Gathering
(Premier, BC Cabinet, and Chiefs of BC)
Vancouver, B.C.
November 29, 2018

Check against delivery

Gilakas'la. Good morning.

I would like to acknowledge the Coast Salish Nation – Musqueam, Tsleil-Waututh and Squamish – on whose ancestral lands we are gathering.

It is good to be back in British Columbia, and at home in Vancouver. And I am particularly happy to be here amongst friends, colleagues, and family. Elders, Chiefs, and leaders; First Nations Leadership Council; Premier Horgan and Cabinet Ministers; thank you for inviting me to speak at the 5th BC Annual Cabinet and First Nations Leaders' Gathering.

I have had the honour of attending four of these gatherings – two as the Regional Chief of British Columbia, and two as the Minister of Justice and Attorney General of Canada. It is so encouraging to see that these gatherings are evolving as a venue for real work to be done, and applaud all of you for your continued leadership in finding new ways to work together to advance reconciliation here in BC.

When I spoke at the first gathering, in 2014, on behalf of the Chiefs, I advanced our "Four Principles". The Four Principles were developed by consensus of the Chiefs of British Columbia as we came together in 2014 – both those groups involved in the BC treaty-making process and those seeking recognition of rights outside of that process. The Principles stated the requisites for true Nation-to-Nation and Government-to-Government relationships consistent with the recognition of rights, Indigenous self-determination, the inherent right of self-government, and the necessary roles for Indigenous laws and jurisdictions. If you remember, that meeting was in the shadow of the Tsilhqot'in decision of the Supreme Court of Canada and there was a clear sense that momentum towards change was building.

Later, when I was here speaking on behalf of the Government of Canada –the underlying message was the same – and I stressed how forming relations based on the recognition and implementation of rights is now the shared work of all of us, including non-Indigenous governments needing to make legislative, policy, and practice changes. I again spoke of the "Four Principles"– this time as a Minister of the Crown.

I also spoke about how Indigenous peoples must lead the way, and the hard questions that – you – we – as Indigenous peoples must answer. And I want to reiterate those sentiments today. Indigenous self-determination requires that we – Indigenous peoples – do the work of re-building our Nations and our governments – work that no one can do, prescribe or dictate for us. For proper Nation-to-Nation and government-to-government relations to emerge, we must revitalize our Indigenous laws, governments, and jurisdictions, and be organized as proper title and rights holders.

Today, my underlying message is the same, but my remarks will be a little different. I think it is timely to share with you some reflections that are in my mind and heart about what we have seen transpire in recent months. To 'take stock', so to speak, about where we are at in this vital work, and where we may go next.

Taking Stock

"The time is always right to do what is right". These words by Martin Luther King Jr. evoke a truth that Indigenous peoples in this country know all too well. The work that needs to be done is urgent – and it has been urgent for generations. There have always been excuses for delay and inaction. We know them well. We often hear – "It is hard", "it is complicated", "we don't understand".

But the reality is that we know what must be done. We have the solutions. Indigenous peoples have articulated what needs to happen for decades. Studies and reports have laid out paths forward, including comprehensively in the Royal Commission on Aboriginal Peoples and the Calls to Action of the Truth and Reconciliation Commission. We have hundreds of court cases about section 35 of the Constitution, and a global consensus around the standards for survival, dignity, and well-being of Indigenous peoples in the United Nations Declaration on the Rights of Indigenous Peoples.

The common theme in the solutions provided is the necessity to shift from the denial of rights to their recognition and implementation, including Indigenous self-determination and the inherent right of self-government. The inhumane conditions and suffering that Indigenous peoples have and continue to experience are rooted in legislation, policies, and practices which did not treat Indigenous people as fully equal, autonomous human beings with dignity, rights, and respect. The imposition of the Indian Act on the lives of Indigenous peoples; the breaking up of our governments and Nations; the lack of implementation of treaties; failing to embrace the standards in section 35 of the Constitution and the United Nations Declaration on the Rights of Indigenous Peoples – these forms of denial are the foundation of our current challenges.

We will never comprehensively solve the massive rates of our children in care, the ravages of the drug epidemic in our communities, the tragedy of youth suicide, and other major challenges we confront everyday unless and until the authority, capacity, and responsibility of Indigenous Nations and their governments to determine their futures and care for their peoples is affirmed and implemented.

I have described the work that the Government of Canada is undertaking with respect to Indigenous issues as moving on two interdependent tracks. Track one is closing the gap issues – ensuring potable water, access to quality education, addressing issues of children and family and the unacceptable rate of kids in care. The second track is the foundation and transformational piece – of rights recognition. This track is making the transformative changes to laws, policies, and practices, and doing the work of Nation and government re-building – by replacing denial with recognition as the foundation of our relations.

Both tracks are needed – interrelated – and the first will never be fully realized – the gaps closed – until and unless the second is made real. Thinking that good intentions, tinkering around the edges of the Indian Act, or that making increased financial investments – however significant and unprecedented – will in themselves close the gaps, is naive. Transformative change and new directions are required.

Maybe think of it through the analogy of a tree. As we all know, if the roots of a tree are dead, the tree will not grow – even if we water it. And while the trunk may stand for years, at some point it falls over and begins rotting. For too long our main strategy has been to pour water on dead roots, hoping that the tree will grow. Of course, it does not.

What we need to do together, Crown governments and Indigenous peoples – and this work is long overdue – is dig up the dead roots and plant something new and then properly water and fertilize it. Entrenching the recognition of rights in federal and provincial laws, policies, and practices – if done properly – that recognize the legitimate polities of Indigenous peoples, is the soil for the new healthy roots of strong and rebuilt – post-colonial Indigenous nations and in which our collective and shared future will grow. A new tree.

But I think we all know this. Yet, regrettably, it still has not happened in any comprehensive way. We need to continue to ask ourselves, "Why?" And to challenge ourselves to confront that which stands in the way. And wherever the obstacles are coming from – be it from within government or outside.

The answer to overcoming the obstacles is having the necessary collective political will to reset the relationship based on the recognition and implementation of rights.

For three years – within government and publicly – I have been explicit in outlining what I see as minimum elements of new relations based on the recognition of rights – a rights recognition framework – elements that are what Indigenous peoples have advocated for over generations.

These include:

  • Harmony between the laws of Canada and UNDRIP;
  • The replacement of the Comprehensive Claims Policy and Inherent Right of Self-Government Policy, and Consultation and Accommodation approaches with policies based on true recognition;
  • Legislated, binding, standards on all public officials to ensure they act in all matters with Indigenous peoples based on recognition of title and rights;
  • Legislative, binding, obligations on the Crown to take action in partnership with Indigenous nations to implement models of self-government that are self-determined by Indigenous peoples;
  • Accountable, independent, oversight of the conduct of government respecting Indigenous rights – as well as new methods of dispute resolution that include applications of Indigenous laws and processes;
  • New institutions – that are independent of government, and designed in partnership with communities – that support the work of rebuilding their nations and governments; and,
  • Development of proper processes and structures between Canada and Indigenous governments for decision-making, including in order to obtain free, prior, and informed consent.

Making these shifts internally within government and in partnership with Indigenous leadership will allow us to meet the goals of: (1) moving from denial to recognition; (2) replacing conflict with co-operation; (3) removing the barriers to self-determination and the inherent right of self-government and (4) creating the conditions for the cultural, social and economic well being of children, family and communities. In short, it will support Nations to lead the work of transitioning from their current realities imposed by colonial structures to futures that reflect the priorities and visions of their peoples. The Nation rebuilding I talked of earlier. The tree.

Where re-built Indigenous Nations and governments are increasingly caring for their own people under their own laws – self-governing. And when Indigenous Nations are leading the way through their own institutions – Crown governments will need to respond and engage with the rebuilt Nations. To follow the lead.

To this end proper legislative and policy changes as well as new models of negotiations and agreements, developed in consultation and co-operation with Indigenous peoples must be about the federal government getting its house in order and supporting Nation rebuilding – and not in any way about regulating, limiting, or constraining the ability of Indigenous peoples to exercise their rights, self-determine and rebuild. Public officials must be bound to recognition standards, and the legal control exercised by other governments over the lives of Indigenous peoples pulled back.

Here in BC, governments and Indigenous leaders have been dancing around legislative change to effect recognition for over a decade and there is great opportunity for leadership – notwithstanding what other governments may or may not be doing. All of this is to say – we do have some experience and lessons learned from going down the legislative path here in BC. And we have learned from it.

Yet, even with friendly governments and with progressive Indigenous leadership – change is always challenging. As the late Chief Joe Mathias reminded us – during the constitutional talks on self-government in the 1980s – he said to "behold the turtle... he moves forward when he sticks his neck out." The question remains today are we prepared to stick our necks out? I say, let us stick our necks out. I am.

We must be audacious. We must do what what is right. And not look for a compromise between what is right and what is not – and thinking it will propel us forward. Ultimately, we are speaking about shifts that are going to require multiple forms of action over many years. The turtle may move slowly – but moves in a purposeful direction.

Not wanting to stick out your neck, is directly related to overcoming our fears – which hold us back. In some respects, those fears are not surprising. While early patterns of relations between the Crown and Indigenous peoples reflected a Nation-to-Nation relationships based on recognition, for far too long that has been ignored and lost, and many have become accustomed to the status quo. So true Nation-to-Nation relationships have become an unknown change for many of us. And like everything in life, the unknown – and change – brings with it an element of fear.

Within government, when discussing matters of Indigenous rights, one still often finds a seemingly disproportionate focus on "risk" – speculation that the sky may fall – and an emphasis on the most severe, yet very remote, potential outcomes. These fears are reinforced by some voices in the public sphere that are opposed to aspects of the critical work of reconciliation. Thankfully the influence of these voices are diminishing but they still exist and remain a threat to progress.

But fear also holds Indigenous Nations back. Of course, many Nations across this Province, and across the country are advancing important change. They are rebuilding their governments, moving out of Indian Act structures and mindsets, and revitalizing and expressing anew their legal orders on the land. But this work needs to massively expand and accelerate. The fact is recognition based relationships cannot be grounded in structures and requirements imposed or propped up by the Indian Act – they need to be by and with Indigenous Nations that have self-determined their representative institutions, and are exercising their self-government. Sometimes fear holds some back from moving out from under the Indian Act.

As well, there are some Indigenous voices on the margins that will – purportedly in the name of upholding Indigenous rights – critically oppose almost any effort to change, often relying on inflammatory rhetoric and misinformation that spreads fear, confusion and mistrust. These voices, paradoxically, sometimes end up reinforcing the same outcome – inaction – that those who oppose rights recognition for Indigenous peoples and reconciliation pursue.

As a former Regional Chief, I understand this. Among this group of Indigenous voices one sometimes sees a tendency to what I would label as fundamentalism – which in any context is problematic. This includes the idea that there is not a place for Indigenous peoples within a changed, rebuilt Canada. This group ultimately rejects both section 35 of the Constitution Act and the far-reaching judicial decisions regarding Indigenous title and rights and UNDRIP – this because both include – in varying ways – articulation of the relationship between Indigenous peoples and rights and the State and confirm the ongoing existence of the state – Canada. The rights recognition and nation rebuilding we are advancing – is within a strong, changed, and united Canada reflecting our system of multi-level government, cooperative federalism, and legal pluralism, including Indigenous jurisdictions and legal orders.

So let me say this to all that want real change – courage is the opposite of fear. We need to be ever more courageous. We need the courage to realize that when making real change, not every future detail can be known – to understand that change has to be transformative, while recognizing that we need to build on our success – to act in ways that take risks, because we know the status quo is not what anyone needs or wants – to not wait for others to lead – generations of children and grandchildren have waited to long – we must lead the change ourselves.

Moving forward on track two and developing an appropriate rights recognition framework, is not just about the right process supported by the right substance. It is also about meaningful action along the way. Rather than delaying important lines of action while waiting for the necessary legislation to be developed, we should all be pushing forward. Let me give an example of action I am taking in accordance with my authority as the Minister of Justice and Attorney General of Canada.

From the day I was elected I have spoken about the need to move the issues of rights recognition and reconciliation out of the courts. The goals of reconciliation and adversarial court processes are opposed. This is why, some 18 months ago, I issued internal direction to my litigators to operationalize the ten principles the Government of Canada adopted in July of 2017 in the context of Indigenous litigation.

It is my intention to make this directive public before Christmas this year. This will reflect a principled approach and something I believe is important for transparency and accountability in the era of reconciliation.

That said, with respect to the directive, and as we all know, direction to litigators can only do so much. If we have arrived to that litigious place then something has already gone wrong in the work we must do together. And ultimately, litigation direction and practices amongst all parties must change – not just the Crowns. But the directive is helping – I believe continue to help – in a range of ways, such as by changing specific aspects of the approach to litigation, simplifying and streamlining, reducing its adversarial nature, making pleadings less offensive, and over time will continue to change the culture that has been built up where litigation is often the norm instead of the exception.

I hope to see multiple initiatives like this directive in the upcoming months that build momentum and trust as a reset takes place in how to get to proper recognition and implementation of rights legislation and policy.

Conclusion

And on that note. Where do we go from here?

Forward, of course. We move forward without repeating mistakes. Even if recent.

We know what needs to be done, we know how to do it properly, we have governments and Indigenous peoples aligned like at no time in history before, and we have a pressing urgency for transformative change that no one can deny. We need to act. There are no plausible or legitimate excuses for not making the shifts that are needed, to relations based on the recognition and implementation of rights. The remaining obstacles must be overcome.

I truly hope that the pace of real change begins to match the urgency of the ills we must address – on all tracks. I hope that regardless of whatever negotiation process you are in – the BC treaty process, recognition and self-determination tables, reconciliation negotiations – you innovate and accelerate to tangible outcomes in months not years.

I would encourage that the kernels of innovation we see – including the Sechelt Foundation Agreement we heard about this morning – are further advanced and made accessible so that Nations across the Province and country can make real progress in a timely way. I also encourage that in the many meetings Provincial Ministers and Indigenous leaders will be having over the next few days, that everyone asks themselves how the discussion they are having and the paths they pursue together advance the broader work of Indigenous self-determination and Nation and government re-building, and the shift to relations based on the recognition and implementation of Indigenous rights.

Everything I have said this morning ultimately boils down to this – generations will look back and judge us on the actions we take right now – when we had the chance – when the stars aligned. When the stage was set for the long-awaited and fought-for change, did we fulfil our role and get it done? Did we stick our necks out? Or did we succumb to old patterns of rhetoric without action? Of division over unified effort? Of partisanship over principle? Of compromise over doing what was right?

I want the story of this moment to be about how we all seized the moment, and as a testament to the sacrifice of generations before us, and for the well-being of the generations to come, we got it done.

So I wish you well in your deliberations over the next few days, and hope that you emerge with outcomes that move all of us forward.

Gilakas'la.

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