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Paddling Together for Reconciliation and Legal Transformation

On July 14, 2017, the Government of Canada released a set of Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples. These principles are intended to guide an ongoing review of Canada’s laws, policies and operational practices designed:

[T]o help ensure the Crown is meeting its constitutional obligations with respect to Aboriginal and treaty rights; adhering to international human rights standards including the United Nations Declaration on the Rights of Indigenous People, and supporting the implementation of the Truth and Reconciliation Commission’s Calls to Action.

A Working Group of Ministers chaired by Justice Minister Wilson-Raybould has been tasked with undertaking the review. If done well, this review has the potential to enhance and strengthen not only reconciliation, but also Canada’s governance system.

As the Anishinaabe legal scholar John Borrows recently stated:

Indigenous peoples may not have much to celebrate as Canada marks its 150th year, but there is the prospect of a brighter future if we can reverse the flow of judgment that has disadvantaged them through the years. We will be a much stronger nation when indigenous precedent, authority, standards, criteria, processes, and principles are recognized as part of the law of this land.

Why are environmental lawyers following this process closely?

First of all, as lawyers it is important that we take Indigenous law and governance rights seriously as law. Indigenous nations have governed their territories and made decisions about the environment for millennia according to their own laws and legal processes. Our team at West Coast Environmental Law provides legal support to Indigenous clients and allies in the process of accessing, articulating and applying principles of Indigenous law to address contemporary environmental challenges in their territories and plan for the future.

Secondly, there is wide recognition that our current framework of federal environmental laws is not up to the task of securing a sustainable future for our children. As the federal government is reviewing major environmental laws and other laws and policies, ensuring that Indigenous law takes its rightful place in environmental decision-making has the transformative potential to achieve more sustainable outcomes for all.

What the Principles Have to Say

The Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples also appear to recognize the ongoing authority of Indigenous legal orders. For example, the Principles state: “Recognition of the inherent jurisdiction and legal orders of Indigenous nations is therefore the starting point of discussions aimed at interactions between federal, provincial, territorial, and Indigenous jurisdictions and laws” (see Principle 4).

Implementing the Principles will mean major shifts in how we make decisions about resource development in Canada. Principle 6 reads: “The Government of Canada recognizes that meaningful engagement with Indigenous peoples aims to secure their free, prior and informed consent when Canada proposes to take actions which impact them and their rights, including their lands, territories and resources.”

The Principles go on to say: “To this end, the Government of Canada will look for opportunities to build processes and approaches aimed at securing consent, as well as creative and innovative mechanisms that will help build deeper collaboration, consensus, and new ways of working together.”

Paddling together: Learning from models of collaborative governance from around the world

As Canada moves further along the pathway of assessing and identifying the statutory changes and new policies needed to best meet our constitutional obligations and international commitments to Indigenous Peoples, there are many resources to draw on. First and foremost, it will be essential for Canada to move forward in full partnership and collaboration with Indigenous Peoples themselves –learning from (and growing beyond) past mistakes and, where appropriate and desired by Indigenous Peoples, working towards collaborative environmental governance that upholds Indigenous law and jurisdiction.

A recent report from West Coast Environmental Law may be of assistance in this work. The report analyzes over forty models from around the world for regional co-governance, and identifies success factors for collaboratively managing the cumulative effects of multiple forms of human activities and development on key values and rights.

The report’s approach is integrative, examining Indigenous, Canadian, provincial, local government and common law, as well as the full cycle of cumulative effects management –from strategic and regional assessment and planning; to tenuring, project assessment and permitting; to monitoring, enforcement and adaptive management.

In particular, it examines options for:

  • structuring collaboration between levels of government, including Indigenous governments, and between responsible agencies in the context of regional cumulative effects management;
  • ensuring that Indigenous legal orders equally inform co-governance structures, including identification of decision-makers, decision-making processes, and relevant criteria for decision making;
  • integrating scientific and Indigenous knowledge into collaborative management of cumulative effects;
  • engaging stakeholders and the public in the process of collaborative management of cumulative effects;
  • giving effect to information, recommendations and decisions of collaborative management bodies; and
  • funding collaboration in regional cumulative effects management.

Finally, the report presents a proposal for one approach that could be used to give effect to these learnings in Canada today through new co-governance processes and bodies. See: Paddling Together: Co-Governance Models for Regional Cumulative Effects Management (2017).

The models and analysis in the Paddling Together report demonstrate that is possible to design and legally enable new approaches that could give effect to the federal government’s Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples, and the benefits of doing so.

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