Charting a new relationship

For nearly twenty years now, RECN has made consistent and focussed effort on the restoration of justice. RECN understands that they have not lost the autonomy to govern over their own affairs, and to govern fairly by their own ways of being. Unfortunately, these efforts are hindered by Canada which seems to prefer a subject-to-nation relationship over a true nation-to-nation relationship, further dishonouring our Treaty, and perpetuating the status quo of oppression and the overrepresentation of our people in Canada’s justice system. A new relationship is necessary, but this path forward cannot be dominated by the Crown, as it has been, resulting in the further deficit of RECN.

This is about the Nehiyew way of being. There is no Nehiyew way of being taught within Britain, Ireland or any of what is now Canada’s institutions. Yet, Nehiyew ways of being continue to be taught, understood, and practiced by Nehiyaw.

If Canada has any inherent powers, those powers only began in 1982. That is, assuming her powers are not still sourced to their origin and Canada, as a state, has its origin in Britain. Recognition of inherent rights must also recognize Indigenous sovereignty, which defines and practices those inherent rights, for where else would those inherent rights come from.

We have our own laws and always have.Footnote 34

It is not necessarily resistance or confrontation that keeps Indigenous peoples from incorporating Canadian law, it is just that Canadian law does not fit; it’s the wrong piece of a much more intricate working puzzle. All together colonial law does not belong with Indigenous law because colonial law does not inherently belong on this land and does not treat individuals in the same caring, compassionate, and relational way. In Canadian law, they talk about justice, in Indigenous law we provide justice, we bring justice to the individual, the family, the community. RECN’s inherent authority does not come from faraway places but from within the Nation itself. In this way RECN leaders, Elders and justice system is aligned with the needs of the individual as a healthy and stable member of a vibrant and thriving Nation.

Within our shared lands known as Canada, there exists a strong example of juridical coexistence within the Akwesasne Community Justice System. Here, Akwesasne laws and fines are administered outside of a federal framework. This recognized Indigenous system oversees matters of elections, tobacco regulation, sanitation, property, and wildlife. Like the desires of RECN, Akwesasne’s justice system does not focus on penalties but on the individual instead. They recognize that any individual may make a mistake and utilize that mistake as a learning opportunity. Rather than strict sentencing procedures, Akwesasne’s justice system may find a way for the offender to contribute in positive ways to their community. Depending on the offender’s skills, they would use those skills to restore balance to those they offended and, in turn, bring harmony back to the community. Further, the Akwesasne court does not require their advocates or judges to hold a recognized Canadian law degree or be called to Canada’s Bar.

By international example, there are stark constitutional differences between Canada and New Zealand regarding the treatment and inclusion of Indigenous populations and their rights. It is largely recognized that the foundation of New Zealand is premised on the Treaty of Waitangi, while Canada’s education system has only recently begun to teach their treaties in schools, despite having made over 300 treaties with Indigenous peoples. This is an educational effort bolstered by the Royal Commission of Aboriginal PeopleFootnote 35, the recent Truth and Reconciliation Commission,Footnote 36 and led by independent treaty initiatives within provinces.Footnote 37 The Treaty of Waitangi continues to receive increasingly more constitutional and legislative recognition of the validity and importance. The difference is a striking comparison to the management and education of the treaties that formed Canada.

Today, unless the principles of the Treaty of Waitangi are expressly written within legislation, it is not considered part of the domestic law of New Zealand. To manage claims made by the Māori, the New Zealand parliament created the Treaty of Waitangi Act in 1975.Footnote 38 This Act establishes and empowers the Waitangi Tribunal to investigate the allegations brought forward by the Māori of a breach of the Treaty terms. Exclusive authority is held by the Tribunal to determine the meaning of the Treaty through inquiry into both the English and the Māori versions. However, the tribunal is not recognized as an authority and its recommendations can be readily disregarded.

The Waitangi Tribunal provides Canada with a living example of how to implement one of many recommendations from the Royal Commission on Aboriginal People:

The restoration of the treaty relationship through the making of new treaties and the implementation and renewal of existing ones will require the establishment of at least two types of independent and neutral institutions: treaty commissions and a specialized Aboriginal Lands and Treaties Tribunal. Their functions would be quite distinct, but both will be vital to the success of the proposed treaty processes. To be legitimate in the eyes of treaty nations, these institutions must be established through consultation and negotiation with the Aboriginal and treaty nations. They must also be genuinely independent of federal and provincial governments. Finally, they can have no authority to affect any rights of Aboriginal and treaty nations that have not given their clear consent to the creation of these institutions or accepted their roles.Footnote 39

The intention of Treaty 5 is to share the land and her resources and allow safe passage to settlers taking up lands in the west without molesting or interfering in one another’s nation’s way of life. Principally, Treaty 5 established peaceful co-existence. From the understanding of RECN Elders throughout time, we know that these intentions were not understood to rid Indians of title—what Canada claims as a surrender —but rather, were meant to protect the RECN people from the incoming wave of settlers who could potentially encroach upon our land. Here, “surrendered” is the improper term, as we understood our lands to be offered protection of the Crown and not as a relinquishing of title. Again, our lands are loaned to us by the Creator for the good of future generations yet to come; such principle understanding forbids us to sever our relationship to our lands. Further, RECN laws apply to RECN and forcing our laws upon others would be a violation of one of our core laws, respect for others. Thus, we agreed to peace and friendship, not subjugation. We agreed, by nation-to-nation treaty, to continue in our mode and avocation of life.

Presumption of authority over RECN lands and people was self-granted by the Crown via section 91(24) in 1867, nine years prior to making Treaty 5 with RECN people. With legislation written to undermine and overpower RECN sovereignty, we must ask whether treaties were made in good faith. The presumption of authority over RECN, prior to entering treaty, raises deep concerns regarding the honour of the Crown, indicates an involuntary surrender of our lands and sovereignty even before Treaty 5 was offered. The assumption of the Crown, and reliance on section 91(24) and the Indian Act implies an ongoing inferiority of RECN peoples as unable to manage our own affairs, and gravely restricts our meaningful participation in the country’s economy.

Kituskinaw is the Cree word for “our land.” This is not a possessory word implying ownership, but instead is a relationship word identifying the land as an entity unto its own, an entity with purpose and meaning no greater than ourselves. In relation with Kituskinaw we learn an all-encompassing subsistence beyond capital gain. We learn to explore what each entity offers the other, we learn courage, character and to value life for life’s sake. Land is integral to our culture, sovereignty, and identity. Land is at the very “core of Indianness” section 91(24)Footnote 40 purports to protect, and central to RECN laws as implied by the Supreme Court of Canada in NIL/TU,O.Footnote 41

Considering the nation-to-nation relationship the Treaty intended to inaugurate, what benefit is it for RECN people to be fully dispossessed of their lands and governance?

The Treaty relationship describes our relations as rooted in the spirit and intent of Treaty 5 which binds us for as long as the sun shines, the grass grows and the rivers flow. We, Mihkoskiwakak Nehiyawak, are the heirs and successors to the Treaty and, being on this side of the river, we will provide for our people. You, our Treaty Partner, the Crown of Great Britain and Ireland, now in Right of Canada, on your side of the river will provide for yours. There will be times when we shall meet in the middle of the river on shared jurisdiction. Therefore, the Treaty ought to be understood as though a legal fence were built around the RECN territory, while the Crown would protect RECN land from infringement and interference; that within our territory RECN laws are paramount, and within shared territory our laws stand in relation to those of the Crown.

These interpretations, or rather RECN’s understandings, are aligned with the United Nations Declaration on the Rights of Indigenous Peoples, and in large part, with Canada’s Implementation plan.

The United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIP) is about the respect and recognition of the human rights of Indigenous peoples. Canada’s implementation of UNDRIP boasts efforts to reinvigorate and recognize Indigenous self-governance. In our view, doing so requires the co-development of nation-to-nation mechanisms, including recognition of Indigenous laws and jurisdiction, enforcement and affirmation of Indigenous governance models. It is perceived that section 91.24 is the new Indian Act, but RECN can make our own laws and Canada should only recognize that law, not impose upon us anymore. Canada’s royal assent of UNDRIP ought to be meant to acknowledge RECN laws and determine how Canada will cooperate or operate within those laws.

The UNDRIP does not use the language of subjection, surrender, or conquered. The terms “between,” “relationship” and “partnership” are significant in the eyes of those who seek a true implementation of UNDRIP through the Spirit and Intent of Treaty: a harmonious and mutually beneficial relationship as nation to nation.

During the Charlottetown discussions in 1992,Footnote 42 section 37, which was stricken out of the Canadian Charter, required the federal government to consult with First Nation communities to specify the Aboriginal rights protected within the Charter under section 35. This consultation process would have led Canada in a new and more unified direction as the two nations set out to define Aboriginal individual rights, title rights, governance, and sharing of wealth and implementation of the newly defined rights. Unquestionably, the consultations on governance would have included Indigenous justice systems.

A new relationship, proportionate to the relationship as founding members of the country, could find its way through the development of treaty federalism. Sakej argues, “only through consolidation of treaty federalism and provincial federalism can the new order be empowered and the colonial regime end.”Footnote 43 Here, an argument is made for political completeness, restoration of Indigenous traditions and balance between the federal, provincial, and Indigenous governments of this land.

Duality in the legal system already exists between the provincial and federal governments; what is required to restore Indigenous sovereignty is simply an additional structure. One that would inarguably save on colonial government spending towards incarceration rates, restore Indigenous communities’ traditions and sense of belonging, and offer healing to longstanding colonial trauma. Fully reconciling the loss of sovereignty will truly bring the two founding nations of this country, now called Canada, back into balance. Restoring sovereignty will be less complicated and less harmful to Indigenous populations than continuing to assume the solution lies within the architects of the problem.

RECN laws already exist; the hindrance to put them into practice with full recognition of our autonomy is oppressive and perpetually harmful. Canada has recently been found to have discriminated against First Nation children by the Canadian Human Rights Tribunal.Footnote 44 This decision included the acknowledgement of harms brought against children by removing them from their homes. Similar findings were acknowledged in the Truth and Reconciliation Commission’sFootnote 45 work and the 2008 ApologyFootnote 46 to the survivors of Residential Schools. It is time for Canada to acknowledge the equivalent harms caused against Indigenous nations through the forceful involvement of the colonial judicial and correctional systems on their lives. As we are currently seeing with the jurisdiction and development of First Nation child welfare laws, a new path forward can be done, and First Nations can take an autonomous lead.

To shake hands, learn from the mistakes, make amends, and move forward in a harmonious way.