Ontario’s legislative assembly will consider a familiar question this month: How can we best respect Indigenous rights? On March 6, NDP Indigenous relations and reconciliation critic Sol Mamakwa introduced a private member’s bill — Bill 76 — which calls for laws in Ontario to be in line with the United Nations Declaration on the Rights of Indigenous Peoples. On Thursday, the bill will go to second reading. If it passes, it will then head to committee. (Like the vast majority of private member’s bills, however, Bill 76 is very unlikely to pass.)
“There are numerous, needless deaths and unnecessary suffering happening in our communities that would not be acceptable anywhere in Ontario — or in Canada, for that matter,” Mamakwa says. “In the house, I always ask why they treat our people differently. That’s what this is; it’s a test for the government.” (The government did not provide comment on Bill 76 when asked by TVO.org.)
UNDRIP outlines the “minimum standards for the survival, dignity, and well-being of the Indigenous peoples,” focusing on such issues as the right to self-determination and prior and informed consent on matters related to Indigenous and treaty rights.
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When UNDRIP was first adopted by the UN in 2007, Stephen Harper’s federal government praised it as an “aspirational document” but nonetheless voted against it. Justin Trudeau campaigned in support of it, and his government removed Canada’s objector status in 2016. But, two months later, then-justice minister Jody Wilson-Raybould called it “unworkable” and a “political distraction to undertaking the hard work actually required to implement it back home in communities.”
Without guidance from the federal government, provinces have been left to determine their own course. British Columbia recently committed to formally legislating UNDRIP. In Ontario, many Indigenous people are skeptical of the government’s commitment to Indigenous issues. Since the June election, the Progressive Conservative government has slashed the Indigenous Culture Fund, reneged on a previous commitment to introduce Indigenous-focused curriculum updates, and merged the formerly independent Indigenous affairs cabinet portfolio with energy, northern development, and mines.
TVO.org spoke with three Indigenous experts about the importance of the bill, its chances of becoming law, and the impact its success or failure in the house would have on the relationship between Indigenous people and the province.
Scott Robertson, a lawyer and the president of the Indigenous Bar Association, hopes that the government will pass Bill 76, but he isn’t confident that will happen.
“The government of Ontario would have to take all measures necessary to ensure that the laws of Ontario are consistent with UNDRIP,” says Robertson. “I’m not getting the cozy feeling from Premier Ford that he would be interested in taking on that initiative or the responsibility.”
For one thing, there’s the issue of feasibility. Section 91(24) of the Constitution Act says that the federal government has authority over “Indians, and Lands reserved for the Indians.” Robertson says that, while the province may indicate that it would be able to satisfy many of these requirements, they ultimately could fall under the federal government’s jurisdiction.
Specific sections, such as Article 19, could also prove problematic, he notes. Article 19 states that the Crown must “obtain [Indigenous peoples] free, prior and informed consent” on anything that affects Indigenous and treaty rights — and that could transfer a huge amount of power from the province to Indigenous people.
In situations involving resource extraction, for example, “You’d actually have to get the Indigenous group to say, ‘Yes, we approve,’” says Robertson. “Not just the consultation of showing up to a board meeting, giving some notes, some papers, and saying, ‘This is what our project will be like — hope you like it.’”
Robertson notes that, if Bill 76 fails to pass, Indigenous and treaty rights will remain protected by Section 35 of the Constitution Act (1982). “Indigenous rights are enshrined in Section 35, which is a lot more comforting than an UNDRIP document,” he says.
But, Robertson says, if the government rejects this bill, it will be signalling that it doesn’t want to help Indigenous people: “They want to create a system whereby it becomes so intolerable, [Indigenous people have to] leave the reserve and give up the rights to their land.”
Lindsay (Swooping Hawk) Kretchmer
Lindsay (Swooping Hawk) Kretchmer says that Ontario should support UNDRIP in part because of the size of the province’s Indigenous population. “Stats Canada data from 2016 put Ontario as number one in the country for overall Indigenous population,” she says. “The time to take stock of these realities is now — the bill may have implications, but doing nothing has far greater consequences.”
Kretchmer, the executive director of the Toronto Aboriginal Support Services Council and a former Indigenous affairs consultant with the city, says that if Bill 76 were to pass, it would transform current policymaking, creating a legal framework for Indigenous self-determination.
“UNDRIP would be used as the underpinnings of new laws to redress historical injustices in a manner that eradicates our contemporary challenges, allowing us to build our own path forward parallel to that of our Canadian friends,” says Kretchmer.
But she’s not optimistic about the bill’s chances, believing that it will fail “due to a longstanding, uninformed opinion on Indigenous people that evokes fear among decision-makers that we just might get one step too close to actually regaining more than a Section 35 mention.”
She is glad, though, that, at the very least, the bill will force the government to take a firm position. “It puts the current leadership in a position to make a clear choice on where they stand with Indigenous rights-based issues.”
On February 23, artist and writer Aylan Couchie published an open letter to Doug Ford, addressing cuts to the Indigenous Culture Fund (ICF), which was created by the Liberals in 2017 to support Indigenous communities, culture, and ways of life through community-based work. “We are concerned the Ontario PC government does not realize what it is they have cut and, we fear, are looking to completely dismantle,” she wrote.
Couchie sees programs such as those funded by the ICF as critical to reconciliation because of the community work they support — language revitalization, traditional harvesting, food security — and points to Bill 76 as one way to protect them.
She believes that cuts to the ICF are counter to the spirit of UNDRIP. “ICF can be seen as Ontario’s commitment to upholding the declaration,” says Couchie. “It covers 14 different Articles, like Article 8 — how we have the right to not be ‘subjected to forced assimilation or destruction of culture.’”
If Bill 76 isn’t passed, she fears that the government will continue to roll back Indigenous funding.
“[Bill 76] is going to impact too many ministries, and Doug Ford won’t be able to make the cuts that he’s making right now,” says Couchie. “It’s not conducive to [the PCs’] end goal.”
She does, however, think that Mamakwa’s move to present Bill 76 was a smart one, regardless of the outcome. “I think the bill is mostly just to show exactly where Ford lies,” Couchie says. “I don’t think it ever had a hope in hell, and I don’t think Sol thought it had a hope in hell. I think it’s just to highlight that the government is not going to be working with Indigenous people or for Indigenous people.”
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