Canadian government not fulfilling its constitutional duties to Aboriginal Peoples
(Reuters file photo)
An Open Letter to Prime Minister Stephen Harper
I am writing to you on behalf of the Congress of Aboriginal Peoples (CAP) to express our concerns about the way in which the Government of Canada fulfils its constitutional duties to Aboriginal Peoples and to offer our assistance in rectifying the situation.
As you are aware, the Supreme Court of Canada has made it clear that the recognition and affirmation of Aboriginal and treaty rights under Section 35 of the Constitution Act, 1982, includes positive duties on federal and provincial governments to consult with Aboriginal Peoples on decisions that affect their rights and to accommodate their interests.
And yet, we see frequent situations where the instructions of the Supreme Court are misunderstood or misapplied by the Government of Canada. We would like to assist in correcting some of these errors.
The most common occurs when private bodies are instructed to carry out consultations, even though it is clear that the duties to consult and accommodate are the Crown’s responsibility. While some procedural aspects of the duties can be assigned to third parties, it remains with the federal or provincial government involved to fulfill the constitutional responsibilities. No situation where those are left to a private party will result in a constitutionally legal consultation. This needs to be clear.
A second error occurs when the Government of Canada claims that consultations have occurred but they have not. Like other national Aboriginal organizations, CAP advocates for the rights and interests of our constituency, but we are not a rights-holder ourselves. When we provide input, advice and insight into issues affecting our constituency, federal departments cannot treat this as consultation within the meaning of the constitutional requirement. The Aboriginal communities that hold Section 35 rights are the only ones with whom the duty can be fulfilled. Departments of the Government of Canada need to understand this and cease to claim otherwise.
The third most common problem is the failure to accommodate. Whether issuing a license or passing legislation, it is not enough to say that meetings were held. There must be a sincere attempt to listen to and implement changes recommended by rights holders.
As advocates for those communities, CAP is ready, willing and able to assist the Government of Canada in understanding how rights may be accommodated and in making decisions that would do so.
It is my belief that a change in approach in these three areas would go a long way in improving the record of the Government of Canada regarding its constitutional duties and I would be pleased to discuss the matter further with yourself and your ministers.
Betty Ann Lavallee
Congress of Aboriginal Peoples
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