Overall Summary Of The Session:

A clear message from all groups is that negotiations will be furthered if the federal government could move forward on implementing the legal and political commitments they have made with Aboriginal peoples, especially implementing in good faith, signed agreements, and working as advised based on recent Supreme Court decisions. All groups also agreed that there is a need:

• to focus on developing policy approaches that facilitate the recognition and implementation of Aboriginal and treaty right consistent with evolving jurisprudence; and
• for more effective processes for the implementation of modern and historic treaties and self-government.

In a slight departure from the approach in previous sectoral sessions, the Negotiations Sectoral Follow-up Session began with two panel presentations on day one.

Panel One - Constitutional and Legal Developments

Three highly recognized constitutional and legal experts, Brian Slattery, Brian Crane and Sákéj Youngblood Henderson, provided an overview of developments in constitutional law since 1982 as a backdrop for discussion in the breakout groups. The panellists discussed how recent Supreme Court of Canada decisions have provided the basis for resolving critical questions relating to Aboriginal and treaty right. They provided participants with information on key decisions and principles articulated by the courts which would provide guidance for renewing policies and processes for addressing Aboriginal and treaty right in a manner consistent with section 35 and the constitutional objective of reconciliation.

In fact, the thrust of all the presentations made it clear that Aboriginal right in case and constitutional law are no longer surrounded by question marks or uncertainty. Indeed in recent years, Aboriginal right have been further entrenched in constitutional law.

Brian Slattery set out a theory of generic Aboriginal right common to all Aboriginal peoples, including the right: to conclude treaties, to customary law, to the fiduciary protection of the Crown, to an ancestral territory (Aboriginal title), of cultural integrity, and to a livelihood and of self-government.

Brian Crane spoke to the fact that section 35 right are not absolute, but exist within the Constitution, requiring reconciliation with other constitutional right through negotiations, and noted that the Crown has a positive duty to pursue reconciliation.

Sákéj Youngblood Henderson provided a presentation on constitutional convergence and the need to reconcile Aboriginal rights and inclusion of Aboriginal within a common Canadian constitutional framework.

Panel Two - Relationship Principles and Objectives

The second panel, consisting of Jean Teillet, lawyer and member of the Métis Nation, Edmond Wright, Nisga'a First Nation, Tom Molloy, federal negotiator, John Merritt, lawyer for the Inuit, and Patricia Monture, a lawyer speaking on behalf of the NWAC, addressed the relationship with the Crown and discussed lessons learned. The panellists discussed their experiences participating in existing processes for addressing Aboriginal and treaty right. They also talked about their vision of the relationship they are trying to build.

There was strong emphasis on the need to ensure that Aboriginal policy is inclusive of First Nations, Inuit and Métis. Good faith negotiations mean having a mandate to negotiate, and having an ongoing process. There is an urgent need for action through the honour of the Crown. Land claims are not the end. They mark a new beginning, and form the foundation of a new relationship that is dynamic and continues to evolve.

There is also a pressing need to ensure the involvement of women in the negotiations and policy development through such prerequisite measures as a gender-based analysis.

Breakout Group Discussion Topics

There were three discussion topics that guided the agenda within the breakout groups. The following reflects an effort to identify themes and recommendations that cut across all three of the breakout groups. The reader is reminded that these are to be read in the context of the individual breakout group summaries, and the complete flip chart notes of each breakout group (i.e. First Nations, Inuit and Métis).

1) Objectives and principles for addressing Aboriginal and treaty right

It was evident in the discussions that the desire for reconciliation as the organizing theme for addressing Aboriginal and Treaty Right was extremely important. Honourable, good faith negotiations as a basis for reconciliation and renewed relationships, as well as fairness and balance in the negotiation process were strongly expressed. A strategy is required that addresses the need for common constitutionally based principles, but not a one-size-fits-all approach.

A key objective in all the sessions is the recognition and respect for distinctive political and cultural right and the ways of life of Aboriginal peoples in Canada, as well as the need for self-sufficiency, economic development, social equality and cultural well-being. Any strategy must also address in concrete ways the coexistence and balancing of right and interests of Aboriginal and non-Aboriginal Canadians, fairness of process, the honour of the Crown, and good faith on all sides.

Each breakout group called for changes to the machinery of government and called for the creation of a variety of ministerial level mechanisms. Examples include the request in the Métis breakout group for a minister who would be responsible for Métis relations. The Inuit breakout group discussed a specific ministry/department of Inuit affairs with the sole responsibility for establishing a new relationship with Inuit. The First Nations breakout group discussed a section 35 minister, reporting to the Prime Minister, with a separate budget and department and the ability to provide independent funding for negotiations.

2) Policy renewal for addressing Aboriginal and treaty right

A common theme that emerged in the breakout groups was the type of negotiated outcomes being sought, and the type of policy changes required to achieve these outcomes. The breakout groups deemed it extremely important that policies be consistent with section 35 and developments in constitutional law, as well as the equality guarantee contained within section 35(4) of the Constitution Act, 1982. The Government of Canada (GOC) must recognize the evolving nature of right and relationships in policy renewal. Coexistence and balancing of right are a critical foundation for renewal. It must be based on new fiscal models to support intergovernmental relationships, as well as land resource right and access for self-sufficiency. Consistent with this is the need to establish a renewed policy on self-government.

Throughout the discussions, the participants expressed the need for clear commitments to implement policies and approaches, an ongoing relationship, addressing both obligations and objectives and resolving the power imbalance and inequity in bargaining positions.

3) Improvements to processes and mechanisms

The desire for predictability and clarity for the exercise of right, application of laws, clear implementation processes to address mutual obligations and shared objectives was evident in the discussions.

A key process issue was related to the need for adequate consultation that is timely and efficient, and to ensure inclusiveness and clear distinctions on federal/provincial/territorial roles. It was also noted that there is a need to ensure public understanding of Aboriginal peoples, as well as private sector involvement.

More effective policies and processes for addressing Aboriginal and treaty right are a key element for achieving transformative change in relationships and for reducing socio-economic gaps and disparities.

Crosscutting Lenses

As noted in the session objectives, each breakout group was also tasked with applying the crosscutting lenses, which were designed to ensure that the needs and concerns of Aboriginal women, Aboriginal people living with disabilities and those living in urban, northern/remote situations were addressed in the brainstorming discussion of issues and development of recommended actions.
In all the breakout groups it was made clear that policies and programs need to be flexible to address diverse needs and to ensure inclusiveness, in particular for youth,
women, urban and non-status Indians, and people with disabilities.

Some of the same critical issues were identified by all three breakout groups on the need to take a proactive approach to women’s participation that ensures women are consulted and involved at all levels (e.g. gender-based analysis, capacity building strategy, visible participation) and that there is a response to the needs of Aboriginal people in urban, rural, remote/northern circumstances.

The crosscutting lenses can also be applied by ensuring that section 35(4) relating to the equality of right between women and men is noted in agreements, and that funding is provided to focus discussion on these issues during the development of community level components.

Another approach to ensuring that the crosscutting lenses are applied involves examination of the reconstitution of the original Aboriginal nations, and the re-establishment of traditional teachings and concepts that call for women to be honoured and the needs of all Aboriginal peoples to be respected (e.g. regardless of residence, status or gender).

Table of Contents

The documentation contained on this website does not necessarily represent the views of any government or National Aboriginal Organization. The purpose of this website is to share information related to the Canada-Aboriginal Peoples Roundtable: background papers, Facilitator's sectoral and final reports, agendas and media announcements.

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