Impact Of Confederation On Aboriginal People And Governance

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Above Photo: Vancouver Granville MP and Minister of Justice Jody Wilson-Raybould spoke at SFU Woodward’s about the political history that led to the creation of the Truth and Reconciliation Commission.CRAIG TAKEUCHI

When Jody Wilson-Raybould was elected in the 2015 federal election for Vancouver Granville and sworn in as Minister of Justice of Canada on November 4, she became the first aboriginal person to hold that position.

Wilson-Raybould is of the We Wai Kai Nation and a descendant of the Musgamagw Tsawataineuk and Laich-Kwil-Tach peoples, who are part of the Kwakwaka’wakw and Kwak’wala speaking peoples.

On January 23, she participated in her first public speech in her role as Justice Minister as part of SFU’s three-part series Being the Change: Women, Policy, and Making a Difference.

In her talk, Wilson-Raybould, a former crown prosecutor, treaty commissioner, and B.C. Assembly of First Nations regional chief, provided a comprehensive history and summary of what has led to the Truth and Reconciliation process.

She began by outlining the history of the relationship of aboriginal people to Confederation.

“When the fathers of Confederation came together in 1864 in Charlottetown, and then again a year later in Quebec, to lay the foundation for Canada, indigenous people were not present,” she told the audience. “They were left out, this despite the early treaty making.”

The exclusion, she explained, has had “far-reaching implications for Canada”.

“The work of reconciliation today is, in many ways, at its core about rectifying this exclusion. After Confederation, crown policy became one of assimilation, and not partnership.”

Among the ways the policy was enacted were the creation of the Indian Act, which made indigenous people a ward of the state, and the establishment of residential schools.

In 1982 when the Constitution was repatriated, she explained that Section 35 was included, which “recognizes and affirms existing aboriginal and treaty rights”.

Unfortunately, there were differing views on how this section was interpreted, which led to a divide.

“Some legal advisors to the provinces played down the significance, even going as far to advise their clients that most aboriginal rights had been extinguished, including aboriginal title here in British Columbia and that any continuing aboriginal rights were limited.”

While some called the section “an empty box that could only be populated at the will of the Crown”, on the other hand, “for indigenous leaders who had fought so vigorously for the Charter amendments, it was anything but an empty box”.

The difference in understanding of aboriginal self-government after repatriation became a source of confusion and disagreement during negotiations.

Consequently, the issue became one of “a question of power and who exercises it”.

“Since the failure of the Constitutional conferences in the ’80s, indigenous peoples have been accumulating power: economic, legal, and political power, to negotiate as equals in order to reach, as René Lévesque said, a civilized solution,” she said. “Today, after numerous challenges, the courts have confirmed that indigenous people do have an inherent right of self-government and that the powers survived Confederation.”

A Supreme Court of Canada decision in Chilcotin, B.C., in June 2014 proved to be what many observers, including Wilson-Raybould, called a “game changer”.

In the landmark case Tsilhqot’in Nation v. British Columbia, she explained, “the court, in granting the first declaration of aboriginal title, found that aboriginal title is territorial in nature and not simply in small spots”.

While it was the first decision of its kind, what was also important about the case for Wilson-Raybould was how it advanced to “the next big question that needs to be answered, namely whose laws apply to the title lands so proven and how will they be governed?”

The answer, she said, is multi-level governance, a combination of indigenous, provincial, and federal law.

She said this combination will decrease legal gaps, promote greater cooperation and compromise, and allow for creative shifts in the role of law when making social progress and innovative policies.

“I became involved in First Nations politics and ran for regional chief because I believe that by building on success, we could do more to accelerate the transition of indigenous communities from a colonial to a post-colonial world to finish the unfinished business of Confederation.”