THE CONVERSATION — The Government of Saskatchewan announced its revised framework for consultation with First Nation and Métis communities in August 2023. This framework sets out the provincial government’s latest approach to fulfilling its constitutional duty to consult and accommodate Indigenous Peoples. However, Indigenous leaders say the changes do not go far enough.
This is the first time changes have been made to the consultation framework in 13 years. While a few changes will come into effect in January of 2024, in substance, this policy advances the same 15-year-old framework for consultation from 2008, which was rejected then by First Nations in Saskatchewan and has again been rejected now.
Yet this is just one document that speaks to far deeper issues and must be placed in a broader context, especially as we recently marked the National Day for Truth and Reconciliation on Sept. 30.
The Truth and Reconciliation Commission’s 94 Calls to Action call on all levels of government to support a new policymaking framework for the country. Some Canadian jurisdictions are making efforts to break away from colonial mentalities by developing policies in true partnership with Indigenous Peoples. Yet, in Saskatchewan, there is little evidence of any similar progress.
Careful readers might spot slight differences between the revised version and Saskatchewan’s earlier provincial frameworks. Timelines have been tweaked, a new chart has been added and a central role for the Ministry of Government Relations has been clarified.
Yet stepping back from the minutiae, the provincial government’s approach to Indigenous consultation largely preserves the status quo — a standard that is out-of-step with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and broader trends in Canadian and international law. It also fails to acknowledge or make any concessions to the distinct perspectives of the Indigenous Peoples of this land.
The TRC called for Canada to adopt UNDRIP as its framework for policy development. This could help set in motion a new era of policymaking that reorients us toward reconciliation. UNDRIP affirms the minimum standards for the survival, dignity, security and well-being of Indigenous Peoples.
Both the federal government and British Columbia have enacted legislation to implement UNDRIP. But similar action in other Canadian jurisdictions remains slow or non-existent.
Saskatchewan’s government has so far avoided engaging with UNDRIP in its policymaking processes. Notably, the UN declaration is absent from its revised consultation framework.
Leaving it up to the courts
The government of Saskatchewan says the revised policy reflects its dedication to “building positive relationships, honouring Aboriginal and Treaty rights, and supporting economic reconciliation.”
However, the policy primarily summarizes principles from case law on the duty to consult Indigenous Peoples. If the framework was simply intended as legal advice for civil servants to help them avoid lawsuits, that would be one thing. But the framework purports to serve a more ambitious goal: facilitating “mutually beneficial relationships” with Indigenous Peoples.
Case law and legal precedent reflect specific disputes based on the specific facts that give rise to them. They cannot be used to design entire policy frameworks from the ground up. Relying almost entirely on the existing case law as a framework for relationship-building with Indigenous Peoples is misguided.
When it comes to the duty to consult and accommodate, the courts define the minimum legal standards within which other branches of government must operate. In other words, they clarify a constitutional floor below which the executive and legislative branches cannot sink. But this is very different from dictating what policies and consultations should look like.
In R. v. Sparrow, the Supreme Court of Canada described Canada’s constitutional provision for Aboriginal and Treaty rights, section 35, as “a solid constitutional base upon which subsequent negotiations can take place.”
In Haida Nation v. British Columbia, the court described section 35 as “a promise of rights recognition” that requires “honourable negotiation,” as well as consultation and accommodation. The Supreme Court has always been clear that the judicial role in reconciliation is a limited one.
More recently, the B.C. Court of Appeal made a similar point in Ahousaht Indian Band and Nation v. Canada, a case on commercial fishing rights. It stated that a court has no capacity to “design a fishery.” At most, it can provide legal guidance to assist Indigenous Peoples and Canadian governments in crafting regulations that respect Indigenous rights.
Courts cannot and will not design the laws and policies that are required for a positive, just political relationship. It is up to the federal and provincial governments to work with Indigenous Peoples to build a harmonious relationship or miyo-wîcêhtowin.
Implementing UNDRIP
Saskatchewan’s approach may be setting the province up for greater risk as well. The case law it relies on shifts and the policy itself can be challenged before the courts. For example, the Métis Nation—Saskatchewan is actively challenging the policy’s restriction against consultation on Aboriginal title claims.
Likewise, Carry the Kettle Nakoda Nation in Treaty 4 territory is pursuing a claim that no further development can take place in their traditional territory without their consent, as there is almost no land left on which they can freely exercise their treaty rights. A similar case succeeded in B.C. in 2021.
Either of these cases could single-handedly raise the floor for consultation and accommodation in Saskatchewan, requiring more meaningful revisions to provincial policy and laws. There can be no certainty in sticking to minimum standards that could be upended at any time.
What is the alternative? As the Supreme Court of Canada noted in Tsilhqot'in Nation v. British Columbia, the best way to avoid lawsuits is to obtain Indigenous Peoples’ consent. Saskatchewan can follow B.C.’s lead by negotiating nation-specific, consent-based processes in line with UNDRIP.
UNDRIP reflects key principles of customary international law, which are directly binding in Canadian courts and therefore highly relevant to Canadian policymaking.
Saskatchewan has been a policy leader in many fundamental areas, with universal health care often mentioned as one of its gifts to Canada. In the 1970s, for a short time, First Nations and the provincial government worked together to create policies on reconciliation that led to agreements on education and laid the foundation for resolving treaty land entitlement claims.
Rather than treating Indigenous nations as political adversaries, the government appreciated the importance of partnership and consultation. Saskatchewan’s current provincial government must do more than the bare minimum required by courts and legal precedent. It must work with Indigenous nations on a shared vision for the future that is more likely to withstand the tests of time and litigation.
The authors:
Benjamin Ralston is an assistant professor at the College of Law, University of Saskatchewan. He does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
Kathy Walker is an assistant professor in the Department of Political Studies, University of Saskatchewan Walker has volunteered for Saskatchewan NDP and federal Liberal party candidates in Saskatchewan in two elections.
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