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Editors --- "Canadian Royal Commission on Aboriginal Peoples - Digest" [1996] AUIndigLawRpr 8; (1996) 1(1) Australian Indigenous Law Reporter 102

Canadian Royal Commission on Aboriginal Peoples: Interim Reports

The Royal Commission on Aboriginal Peoples (RCAP) is a seven member Commission appointed on 26 August 1991 by Order in Council, [1] pursuant to Part I of the Federal Inquiries Act. The Commission has a broad mandate to examine and report upon issues concerning aboriginal peoples in Canada. The terms of reference were recommended by former Chief Justice of the Supreme Court of Canada, Brian Dickson, who served as the Prime Minister's special representative and consulted widely on the mandate and membership of the Commission.

As at July 1995, the Commission had released a number of commentaries and special reports. It was expected to complete its deliberations on the final report soon after that date. The final report is expected to be available to the Federal Government early in 1996.

A summary follows of two recent interim reports of the Commission:

1. Treaty Making in the Spirit of Co-existence: An Alternative to Extinguishment (p. 102);

2. Choosing Life: Special Report on Suicide among Aboriginal People (p. 104).

Royal Commission on Aboriginal Peoples

Ottawa: Canada Communication Group, 1995

Introduction

On 23 March 1995, the Government of Canada released the latest interim report of the Commission, entitled Treaty Making in the Spirit of Co-existence: An Alternative to Extinguishment. The report deals with the extinguishment clause in `comprehensive' land claims agreements, which are described in the report as:

a type of treaty that allocates to Aboriginal communities, the Crown, and third parties a variety of rights and responsibilities with respect to ancestral lands of an Aboriginal nation. Such rights typically include rights of full or partial ownership and use of certain lands, as well as limited rights of governance and regulation. By reconciling and integrating Canadian legal principles with distinctive Aboriginal relationships with land and systems of governance, a comprehensive agreement can enable an Aboriginal nation to obtain greater control over its identity and future.[2]

The announcement of the release of the RCAP Report by the Honourable Ronald A. Irwin, Minister of Indian Affairs and Northern Development, refers to the appointment in December 1994 of the Honourable A.C. Hamilton, a former Associate Chief Justice of the Manitoba Court of Queen's Bench, as Fact Finder to explore and report on the views of Aboriginal groups, provincial and territorial governments, concerned parties and the general public on how best to achieve certainty about lands and resources through land claims agreements. The appointment of the Fact Finder was made in response to the June 1994 report of the Standing Committee on Aboriginal Affairs and Northern Development which asked the Minister to "consider the feasibility of not requiring blanket extinguishment". The Government announcement reports that the RCAP Report has been referred to the Honourable A.C. Hamilton and released publicly to provide valuable input to the discussion process.

The Report

Current federal policy requires Aboriginal nations seeking to enter into comprehensive agreements with the Crown to surrender or extinguish some, if not all, Aboriginal land rights in return for rights guaranteed by agreement. This policy is designed to provide certainty and clarity of rights of ownership and use of land and resources.

Extinguishment of Aboriginal land rights purport to sever Aboriginal relationships with land and, in many instances, does violence to Aboriginal identity, claims the Report, citing the words of Chief Edward John of the First Nations Summit of British Columbia:

When government asks us to agree to surrender our title and agree to its extinguishment, they ask us to do away with our most basic sense of ourselves, and of our relationship to the Creator, our territory and the other peoples of the world. We could no longer do that without agreeing that we no longer wish to exist as a distinct people.[3]

In addition, blanket forms of extinguishment run counter to the spirit of the Royal Proclamation of 1763, thought by many and described by one jurist as "a fundamental document upon which any just interpretation of original rights rests".[4] Federal policy also is inconsistent with the fact that existing Aboriginal rights are constitutionally recognised and affirmed by s. 35(1) of the Constitution Act, 1982. Federal policy may also breach fiduciary obligations owed to Aboriginal peoples by the Federal Government.

The Royal Commission on Aboriginal Peoples therefore recommends that the Federal Government adopt a new approach in its comprehensive claims negotiations with Aboriginal peoples, that is, one based on the concepts of co-existence and mutual recognition.

In particular, the Commission recommends that the Federal Government not seek to obtain blanket extinguishment of Aboriginal land rights in exchange for rights or other benefits contained in comprehensive agreements. The Commission also recommends that the Federal Government not require partial extinguishment of Aboriginal land rights as a precondition for negotiating comprehensive agreements, and that parties resort to partial extinguishment in the last resort, only after a careful and exhaustive analysis of alternative options.

Instead of extinguishing Aboriginal rights, a comprehensive agreement ought to serve as an instrument of co-existence and mutual recognition. An agreement ought to be a vehicle whereby certain Aboriginal rights with respect to land and governance are recognised by Canadian society, and certain Crown rights with respect to land and governance are recognised by Aboriginal society.

The Commission suggests that parties strive to identify, as exhaustively as possible, their respective rights by agreement. Negotiations ought to be aimed at Crown recognition of Aboriginal rights with respect to land and governance over part of the claim area; Aboriginal recognition of Crown rights with respect to land and governance over another part of the claim area; and co-jurisdiction and co-management of other land within the claim area. Existing third-party interests should not be affected by the negotiations.

Aboriginal rights not recognised by an agreement would not be extinguished, but their exercise would be subject to existing third-party interests and the terms of the agreement. To eliminate doubt on the matter, an agreement could provide explicitly that Crown rights and protected third-party interests take precedence in the event of conflict with Aboriginal rights not recognised by the agreement. However, parties should strive to avoid, as much as possible, conflict between Crown rights recognised by agreement and Aboriginal rights not recognised by an agreement.

Aboriginal rights recognised by an agreement ought to be worded to permit their evolution in light of favourable legal developments. Aboriginal rights not recognised by the agreement also ought to be permitted to evolve in light of future legal developments. Agreements ought to impose on parties a duty to bargain in relation to the effects of significant unforeseen legal developments concerning Aboriginal rights not recognised by the agreement. This duty to bargain would arise where, but for a Crown right recognised by the agreement, such developments would enure to the benefit of an Aboriginal party. This duty would not arise where an existing third-party interest prevents an Aboriginal party from enjoying the benefit of such a legal development.

In addition, the Commission Report recommends that governments accept that Aboriginal rights recognised by the agreement, including rights of self-government, are "treaty rights" within the meaning of section 35(1) of the Constitution Act, 1982. The clarity and certainty that this would provide Aboriginal parties ought to be the quid pro quo for the clarity and certainty that would accrue to governments by the fact that the terms of the agreement would take precedence in the event of conflict with Aboriginal rights not recognised by the agreement.

The Report also recommends that negotiations ought to be premised on reaching agreements that recognise an inherent right of self-government. Separate negotiations over issues relating to land and issues relating to self-government should not be a precondition for entering into negotiations. The Commission recommends that parties establish mechanisms, including mediation and periodic review, to facilitate the resolution of conflict and disputes arising out of their continuing relationship.

The Report expresses the view that a policy that recognises and affirms Aboriginal rights and emphasises co-existence, mutual recognition, and shared ownership and jurisdiction is to be preferred over current federal extinguishment policy. Federal provincial and territorial governments can achieve a sufficient degree of clarity and certainty without requiring Aboriginal nations to agree to extinguish existing Aboriginal rights.

Royal Commission on Aboriginal Peoples

Ottawa: Canada Communication Group, 1995

Earlier this year, the Government of Canada released an interim report on Aboriginal suicide, entitled Choosing Life: Special Report on Suicide among Aboriginal People.

This report demonstrates that among the native populations of Canada, elevated rates of suicide have now been present for many years. Acknowledging the limitations of official statistics, which almost certainly underestimate the proportions of Aboriginal deaths due to suicide, the Commissioners document significantly elevated rates for the Canadian Aboriginal population for three decades. During the last fifteen years, these rates have been over three times higher than for the population as a whole. However, aggregate rates hide the even greater risk of particular subgroups within the Canadian indigenous population. The period of greatest vulnerability is young adulthood, with 1987-91 rates for "registered Indian" males in their third decade exceeding 105 per 100,000, and for females 27 per 100,000, these rates being over three and five times, respectively, those for the nation as a whole. The age-group with the greatest excess, for both sexes, is the second decade of life, with males 5.1 times, and their female peers 8 times more likely to die by suicide.

As with the Australian Royal Commission into Aboriginal Deaths in Custody, the Canadian Royal Commissioners, in their analysis of indigenous suicide, focus on the underlying issues and their historical causes, which are presented as:

a complex mix of social, cultural, economic and psychological dislocations that flow from the past into the present. The root causes of these dislocations lie in the history of colonial relations between Aboriginal peoples and the authorities and settlers who went on to establish `Canada', and in the distortion of Aboriginal lives that resulted from that history.[5]

Among the systematic processes embedded in these political processes was the undermining of cultural values through institutionalisation, particularly the system of boarding schools for indigenous youth, destructive state mandated intrusion into family life. This has been consequential for self-esteem, family connectedness, the intergenerational transfer of skills and tradition, and the individual's sense of trust and respect. Also impacting the construction of identity, and presented as a key socioeconomic factor in this analysis, is unemployment, which "has become so common in these communities that it seems to have become a fact of life".[6]

In relation to suicide prevention programs, the Commissioners suggest elements fundamental to effective local strategies: cultural and spiritual revitalisation; strengthening the bonds of family and community; a focus on children and youth; holism; whole-community involvement; partnership; and, community control. This preliminary report also attempts to explore some of the barriers to concerted action, both within communities (lack of leadership and role models, shame, rivalries) and on the part of governments, whose responses have been slow at times of crisis.

Among the structural impediments to governmental responses, the Commissioners identify inadequate training and information dissemination, and the multiplicity of funding sources. The shift from reliance on government services and expertise to self-help is applauded in the Report. However, two concerns are identified:

The first is a tendency for governments to withdraw from providing assistance too soon, as part of a drive to shift financial responsibility onto other shoulders. At its best, withdrawal from Aboriginal affairs by governments reflects a recognition of the rights and responsibilities of Aboriginal people and communities for self-care. At its worst, it is an abdication of government obligation, or a failure to understand the stresses of the transition from dependency to independence and to provide support during this time.

A second tendency that we see as negative, indeed as self-defeating, is for Aboriginal communities to turn self-reliance into a form of rigid isolation in which the help of anyone or any agency that does not come from within is rejected.[7]

The Commissioners also note that there is no comprehensive nationwide mental health policy applicable to all Aboriginal peoples. The Commissioners present a series of recommendations including a shared commitment between Aboriginal and governmental organisations toward a nationwide campaign with a ten year timetable, the primary goals being the development of crisis response capacities, community development, and progress towards self-sufficiency and self-government. Local responsibility and definition of priorities is emphasised, with coordination of programs through the various levels of government, which is also called on to support a National Forum on the Prevention of Suicide among Aboriginal People.

It should be noted that one of the Commissioners voiced a number of concerns in a "dissenting view" included as an appendix to the Report. This Commissioner suggests that recommendations might better have been located in a more comprehensive policy agenda and, after pointing to the ambiguity of the term `Aboriginal community', cautions against generalising strategies across diverse social settings:

The proposal to extend the same policy recommendations to all communities arises from the report's creation of a symbolic characterization of the relationship between all Aboriginal people and Canadians generally.... This technique does not pay sufficient attention to the different characteristics of various Aboriginal communities; it seems designed to avoid the consequences of having to rely on a partial statistical base that does not include all Aboriginal communities.[8]

The Royal Commission's Reports are available through bookstores that carry Canadian government publications or through the Canada Communication Group (CCG): Publishing, 45 Sacre Coeur Boulevard, Hull, Quebec, Canada K1A 0S9. Orders may be placed by telephone on +1 819 956 4802 or facsimile on +1 819 994 1498.

[1] Federal Order in Council dated 26 August 1991, reference P.C. 1991-1597.

[2] Royal Commission on Aboriginal Peoples, Treaty Making in the Spirit of Co-existence: An Alternative to Extinguishment (1995), p. 4.

[3] ibid., p. 46.

[4] see ibid., p. 24.

[5] Royal Commission on Aboriginal Peoples, Choosing Life: Special Report on Suicide among Aborignal People (1995), p. 2.

[6] ibid., p. 24.

[7] ibid., p. 85.

[8] ibid., p. 96.