Canada is facing a crisis when it comes to the lives and well-being of many indigenous people. Suicide pacts, boil water advisories, rampant diabetes, overcrowded homes … the list goes on. First Nations suffer from significant funding disparities between on-reserve services and those available to the general Canadian public. This gap has had devastating impacts on the quality of life on many Indian reserves that has led to conditions akin to Third World countries. The Prime Minister has called for renewing a nation-to-nation relationship to address these conditions.
The moral and political implications of these problems are extensively discussed. Does the legal principle of the honour of the Crown also create obligations for the Crown to provide funding to address these disparities? We believe they do, and we have written a paper about it, entitled, “The Honour of the Crown, Dirt Roads, Boil Water Advisories and Self-Government:
The Fiscal Relationship between the Crown and First Nations”. We recently presented this paper at the Canadian Bar Association Aboriginal Law conference in Ottawa, and we would like to share a copy with you here.
The Supreme Court has said that the honour of the Crown arises because of the Crown’s claim of sovereignty over Canadian territories and pre-existing Aboriginal sovereignty and territorial rights. The Courts have grappled with what this principle entails and have applied it to a number of situations. They have found that “in treaty-making and implementation there will be a duty to engage in honourable negotiation and to avoid the appearance of sharp-dealing.” Yet First Nations who signed the so-called historic treaties are frequently faced with Crown positions that limit the interpretations of those treaties. The Crown is not negotiating implementation of these treaties, despite the clear calls for treaty renewal from both the Royal Commission on Aboriginal Peoples and the Truth and Reconciliation Commission. And not just the federal Crown is failing in this regard – the Provinces too, who have benefited richly from the treaties, need to be part of treaty implementation negotiations.
Historic treaties were intended to share the wealth of the land and its resources, not to give them up in exchange for being placed on reserves to live in poverty. Thus, treaty implementation negotiations must address the sharing of the wealth. Revenue sharing and tax-sharing from wealth generated from traditional territories need to be open for negotiation. In areas where reserves exist but historic treaties with surrender clauses were not signed and land claim settlements have not yet been reached, following assertions of sovereignty and taking control of the lands, the Crown is obliged to provide funding to ensure that peoples placed on reserves are not in a worse position than the settlers who have benefited so richly from the assertions of sovereignty.
The honour of the Crown also creates an imperative for honourable negotiation for implementing self-government agreements. Canada’s 2015 fiscal policy framework for self-government arrangements establishes the funding base for First Nations who want to draw down self-government jurisdictions at the levels INAC provides for funding on reserve. But those reserve funding levels – e.g. for education funding – have been established to be far less than the funding available in other communities, and are insufficient. This policy position cannot be the basis for honourable negotiation.
The Crown can open treaty renewal tables. The fiscal relationship can change. The time to act is now.
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