Nation-to-nation status sounds good in principle

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What actually happens in practice is another matter.


First published in The Hill Times on May 7, 2018.

OTTAWA—Nation-to-nation status sounds good in principle. What actually happens in practice is another matter.

When the prime minister reiterates his government’s intention to redress indigenous wrongs by a nation-to-nation dialogue, it sounds like a good step in the direction of reconciliation.

When the national discussion includes infrastructure in Indigenous communities, or repatriation of aboriginal language or artifacts, it may be simple to finesse a bilateral agreement, when only two parties are involved in the negotiation.

But when nations infringe on the constitutional rights and responsibilities of multiple governments, that is when the rubber hits the road. And starts burning.

A dozen years ago, Quebec was deemed a nation, by parliamentary resolution.

In reality, nationhood is expressed in asymmetrical federalism, an approach to governance that permits each province to choose their own path in certain circumstances.

Today’s ongoing debate on carbon pricing is a good example of how the federal government can co-exist with provinces in areas of joint jurisdiction, including certain environmental initiatives and standards. We dare not refer to national government as that carries a different meaning in certain provinces.

When it comes to defining the role of nationhood in divvying up revenues from new initiatives like legalized marijuana, the notion of equal status for Indigenous nations evaporates.

The prime minister has already rebuffed an Assembly of First Nations request last week to delay pot legalization for a year, while Indigenous nations negotiate their share of cannabis taxes.

Trudeau is well into the third year of a four year mandate, and one thing the prime minister cannot afford to do is to break his promise on pot.

The youth vote that provided Trudeau an electoral breakthrough in the last election is expecting tangible results on legalization. They will not be satisfied by any delay, even if it is prompted by Indigenous communities seeking clarity on their share of weed spoils.

Nonetheless, the AFN proposition will have some support. With a number of ministers focussing directly on reconciliation and support for Indigenous communities, there has to be a way to recognize an aboriginal pot partnership.

The government will likely respond with a form of federal revenue-sharing on indigenous lands, but will not embrace the notion that a bilateral agreement can be negotiated between two equal partners.

The parliamentary debate, stoked by a Senate committee which has also been given freedom to operate outside the ambit of political parties, will continue to smoulder in the months ahead.

The Senate standing committee on aboriginal peoples sides with AFN claims that implementation should be delayed.

The thorny issue of jurisdiction has not escaped the attention of indigenous leaders elected to territorial governments.

In an open forum organized by the Northwest Territories last month, Tlicho nation resident Georgina Franki asked whether her community was even subject to territorial regulations on cannabis. She questioned whether the Tlicho Nation might already have the authority to licence cannabis dispensaries and grow-ops. Members of the legislative assembly present at the consultative meeting. could not give her an answer. The N.W.T. legislature has already determined that marijuana will not be sold by indigenous communities or their designates.

That right has been assigned to licensed liquor stores, with a proviso that indigenous communities be informed as to who is buying and how much. The government says it will consider an expanded indigenous community role once the system has begun operating.

In another perspective on just what nation implies, last week the Quebec Superior Court threw out a Kahn ‘awake housing law that a marriage to a non-indigenous person triggered expulsion from the community.

The ruling in a case launched by 16 dispossessed residents, stated that the policy was a violation of the Canadian charter of rights and freedoms which legislates non-discrimination on the basis of family status.

In responding to the ruling, Kahn‘awake grand chief Joe Norton said he would not be guided by “outside courts” in matters “so integral to our identity.” Instead, local council is considering their own changes to the marital ouster law.

The bottom line is that aboriginal nation status is subjugated to federal, provincial and territorial lawmaking, notwithstanding the dialogue of equals.

Trudeau’s government is to be congratulated for embarking on a discussion about how to move past the colonial approach that has largely marked Ottawa’s relationship with First Nations across the country.

However noble, the prime minister will not likely be able to achieve his promised goal of a dialogue between equals. Some governments are just more equal than others.

Sheila Copps is a former Jean Chrétien-era cabinet minister and a former deputy prime minister. Follow her on Twitter at @Sheila_Copps.