Ghaith is a JSDLP Editor in his second year of law. Follow him on Twitter @HE_Ghaith.
“A nation without a vision has no hope. A nation without a vision has no future. We now embark on this journey together, for the benefit of all people. Miigwech [thank you].” Chief Elijah Harper, addressing the 1995 Sacred Assembly
Chief Elijah Harper (1949-2013) declared that he could not vote for constitutional change that did nothing for his people, and refused assent to the Meech Lake Accord. This rejection in Manitoba’s Legislative Assembly became its defeat, and sparked a nationwide debate about Canada’s crimes and failures towards its indigenous peoples.
Years later as a Member of Parliament Chief Harper addressed another assembly, which he himself gathered. A Sacred Assembly, bringing together Aboriginals and settlers in a spirit of healing and reconciliation. 3,000 people attended the only assembly of this kind in 1995, including Prime Minister Jean Chrétien.
I believe the time has come for an assembly like this in Parliament. Here I argue that legislative representation for Canada’s Aboriginals should be constitutionally mandated. I propose repurposing our dysfunctional senate as a starting point to doing so.
A disclaimer: I am not Aboriginal, and though I hope to propose a novel path towards respect and equity for Canada’s Aboriginals I do not speak for them. I also do not intend their representation in the legislature to integrate sovereign Nations into the settler’s political structure. My intent is rather for this representation to operate in support of existing Nations’ rights to self-governance by remedying, somewhat, the immense power differential between them and settler colonial Canada.
This approach is not unheard of. The Royal Commission on Aboriginal Peoples recommended an Aboriginal Parliament 20 years ago, a proposal gaining ground today. New Zealand instituted Māori-only electorates in 1867, so the idea is at least as old as Canada.
Older still is the constitution we share with Aboriginals: the Royal Proclamation 1763 requires a nation-to-nation relationship between indigenous and settlers, and the ensuing Treaty of Niagara 1764 bound both as family in a shared covenant. Neither was ever repealed and these obligations continue to stand as law. We remain far from the path to treating Aboriginals as family. Approached correctly though, I think repurposing the senate will at least bring us closer to the equal political footing that a nation-to-nation relationship requires.
Past governments have failed to maintain this shared constitution, let alone a nation-to-nation relationship. After equivocating on his election pledge to respect First Nations’ right to a veto over what happens on their lands, the Trudeau government’s roadmap is no more promising.
This is the problem of disjointed political accountability. A nation-to-nation relationship cannot exist where the colonized nation depends on settler charity for respect. By definition, a nation-to-nation relationship takes equal political rights not as an end but as its starting point. In today’s asymmetry no dealings come close to such evenness in negotiating positions. Few of Canada’s First Nations and bands can operate without funding or recognition from a government accountable not to them but to an overwhelmingly non-Aboriginal settler electorate. This pegs the affirmation of Aboriginal rights to settler sentiment, and subsumes them into the triage of issues the federal government responds to. The result is denial of rights and the relationship we have today.
This is why the current Liberal pledge of a nation-to-nation relationship is empty until accountability is equitable. It can yield only more symbolic non-resolution, not a new way forward.
What Canada’s nation-to-nation relationship needs is constitutional change that levels the playing field between settler Canada and indigenous peoples.
We need a National House. A constitutional mandate to put First Nations, Inuit, and Métis in control of the Senate would create a permanent forum for nation-to-nation dialogue in the spirit of the Sacred Assembly and the Royal Proclamation, and make cabinet accountable to more than the settler filled House of Commons.
This is not to mention the benefits for settlers. Such a house would return currency to the Senate as a place for debate among our elders rather than patronage and mock aristocracy. It would also help remedy the false virtue of Canadian multiculturalism, which as settler-colonialism by people of colour is hardly a form of progress. In addition it would present an opportunity for nation building, and as a young country with an undefined national identity seizing it can only make our country more vibrant and resolute.
Such a change could be done with a constitutional amendment to add, between section 22 and section 23 of the Constitution Act 1867 a section requiring indigenous representation from half of the senators from Western, Central, and Atlantic Canada (51/105) and 2/3 of the senators from the territories to tip the balance. Appointments should be allowed for any duly elected Indian status or Aboriginal membership holders, so as to include both treaty and non-treaty Aboriginals. The modalities may differ to the extent they guarantee Canada’s Aboriginals a de facto veto over Parliament’s every bill, and equality within the upper chamber. It should naturally also permit deliberations in indigenous languages to help their revitalization.
A National House should not be the only site of a nation-to-nation relationship. Many nations, like the Kahnawà:ke Mohawks, have elements that categorically oppose the federal government. Such peoples should retain the right to say that those in Parliament do not speak for them without derogation to their sovereignty.
Keeping the promises of the Royal Proclamation and Treaty of Niagara is no small task. At the very least, I believe a National House can help us move towards the hope, future and guiding vision that Chief Elijah Harper wanted for this land and its people, and the respect and dialogue that these treaties stand for.
Interested in learning more about indigenous rights? We suggest these selected articles from our past issues:
- 12:1 Indigenous Rights, Environmental Rights and Corporate Responsibilities: Challenges in Implementation [forthcoming]
- 9:2 Case Comment: Reconciling Aboriginal Rights with International Trade Agreements: Hupacasath First Nation v. Canada
- 6:2 Access to Justice: The Impact of Injunctions, Contempt of Court Proceedings, and Costs Awards on Environmental Protestors and First Nations
- 6:2 Repenser les fondements du régime minier québécois au regard de l’obligation de la Couronne de consulter et d’accommoder les peuples autochtones
- 6:1 Social Safeguards in REDD: A Review of Possible Mechanisms to Protect the Rights and Interests of Indigenous and Forest-Dependent Communities in a Future System for REDD
- 5:2 Recent Developments in Social Impact Management in Extractive Resources Development in Peru
These articles are referenced as suggested reading. It should not be taken to imply their authors share the views expressed above.