The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) is the latest addition to a growing library of reports, findings, and recommendations on what should be done about the many problems afflicting Canada’s Indigenous people.
The MMIWG report refers to problems relating to and emanating from “existing systems of relationship, governance, and identity” and to general principles guiding how communities are established, organized and governed. In the same vein the Institute on Governance, in its 2017 National Summit Report on Characteristics of a Nation-to-Nation Relationship, asserted that “governance determines who has power, who makes decisions, how other players make their voice heard and how account is rendered.” Many other reports concerned with Indigenous peoples issues have touched on the subject of governance, directly or indirectly.
The roots of the colonial character which stigmatizes the lives of Indigenous people are in the Constitution. The Constitution (art. 91.24) gives Parliament exclusive legislative authority in matters concerning “Indians, and Lands reserved for the Indians.” Hence the Indian Act and all the horrors (e.g. residential schools) that emanated from it in the course of the last 150 years.
It is a cruel irony that the 1867 Constitution allocated governing powers in ways that empowered and enabled the country’s first colonizers, the French, to protect their language, their culture, and their legal traditions (civil law) on the lands they had colonized, while not only denying these same rights and powers to the country’s first inhabitants, but empowering the federal parliament to deny Indigenous people rights enjoyed by their colonizers.
Parliament adopted a Bill of Rights in 1960, but this was an ordinary Act of Parliament. It could not establish principals which federal and provincial legislation must respect. It was not until 1982, with the adoption of the Charter of Rights and Freedoms, that “existing aboriginal and treaty rights of the aboriginal peoples of Canada” gained protection under the Constitution (Art.35). However significant this affirmation of aboriginal rights is, it does not address the matter of governance; the Indian Act still applies.
If the question of indigenous governance is to be addressed in a meaningful and lasting way, Art. 91.24 must be struck from the Constitution and the Indian Act repealed. Doing this would require several constitutional amendments: a) addition of an Indigenous Constitution section; b) addition of an Indigenous Legislature section, and c) listing all matters over which the Indigenous Legislature is to have exclusive jurisdiction.
The prospect of a single legislature and executive having jurisdiction over every Canadian Indigenous community may be daunting at the outset, but it would be an improvement over the power being vested in the federal parliament with one Minister administering the Indian Act.
We now have two levels of government, central and regional. The addition of an Indigenous order of government would not change that. It would mean that a person, in addition to being subject to federal laws, would also be subject to the laws of a secondary jurisdiction, either provincial or indigenous, depending on where she may live or travel.
Reflecting on the process which resulted in the adoption of the Charter of Rights and Freedoms, it may well take three to five years to retire the last vestiges of colonialism in Canada. Maybe the MMIWG report’s eyebrow-raising genocide reference will finally motivate federal political parties to move beyond platitudes.
