Canada: Truth And Reconciliation With First Nations Implications For Employers

It can start with a knock on the door one morning. It is a local Indian agent, or the parish priest, or, perhaps, a mounted police officer. The bus for residential school leaves that morning. It is a day the parents have long been dreading. Even if the children have been warned in advance, the morning's events are still a shock. The officials have arrived and the children must go

(Honouring the Truth, Reconciling for the Future, July 23, 2015, page 47)

The new federal government has said it will adopt all of the recommendations of the recently released Final Report of the Truth and Reconciliation Commission of Canada. This will impact employers in the private sector, particularly those working with natural resources. Employers will be required to ensure that jobs, training and opportunities are shared with First Nations communities. Employers will also be expected to have more cultural awareness of First Nations issues, be vigilant with respect to racism, and be more creative with conflict resolution.

The TRC Report and the Royal Commission on Residential Schools

The Truth and Reconciliation Commission of Canada (the "TRC") was established in 2008 and published its final report in 2015. It has its origins in the Indian Residential Schools Settlement Agreement (the "Settlement") which resolved the class actions against the federal government arising from residential schools. The Settlement provided compensation to students who attended the approximately 139 residential schools and residences.

It is estimated that at least 150,000 First Nations, Métis and Inuit students passed through this system. Children were abused both physically and sexually and countless innocent children died in the schools. While most of these schools closed in the 1980s, it is surprising to note that the last federally supported residential school remained in operation until the late 1990s. The residential school system has been appropriately called cultural genocide. The stated purpose was the destruction of those structures and practices which allowed the First Nations to continue as a society. To be clear, reconciliation is not an aboriginal issue; it is a Canadian issue.

The TRC was not the first opportunity for the federal government to thoughtfully consider its relationship with our First Nations. In 1996, the federal government commissioned the report of the Royal Commission on Aboriginal Peoples. This Commission, which included Supreme Court Justice Bertha Wilson, held 178 days of public hearings, visited 96 communities and commissioned independent research. Their finding was that the main policy direction pursued for the past 150 years, that of assimilation of the First Nations, was wrong. The commission described the policies of the federal government and provided the following stark message:

A careful reading of history shows that Canada was founded on a series of bargains with aboriginal peoples – bargains this country has never fully honoured. Treaties between aboriginal and non-aboriginal governments were agreements to share the land. They were replaced by policies intended to:

  • remove aboriginal people from their homelands;
  • suppress aboriginal nations and their governments;
  • undermine aboriginal cultures;
  • stifle aboriginal identity.

The Commission proposed four principles as the basis for a renewed relationship with First Nations: recognition, respect, sharing and responsibility. The Commission advocated for self-government, economic development, education, training and the renegotiation of existing treaties. The Commission proposed a 20 year agenda for change which was largely ignored.

What does the TRC report mean for employers?

So, why are we focusing on the TRC's report today? While the previous federal government largely ignored the 98 recommendations set out in the Commission's "call to action", the current government has said that it will implement all of the recommendations. What does that mean for employers? What are the relevant recommendations?

57. We call upon federal, provincial, territorial, and municipal governments to provide education to public servants on the history of Aboriginal peoples, including the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.

92. We call upon the corporate sector in Canada to adopt the United Nations Declaration on the Rights of Indigenous Peoples as a reconciliation framework and to apply its principles, norms, and standards to corporate policy and core operational activities involving Indigenous peoples and their lands and resources. This would include, but not be limited to, the following:

  1. Commit to meaningful consultation, building respectful relationships, and obtaining the free, prior, and informed consent of Indigenous peoples before proceeding with economic development projects.
  2. Ensure that Aboriginal peoples have equitable access to jobs, training, and education opportunities in the corporate sector, and that Aboriginal communities gain long-term sustainable benefits from economic development projects.
  3. Provide education for management and staff on the history of Aboriginal peoples, including the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.

There is no question that the legal landscape for First Nations peoples has been changing at a rapid pace. With the Supreme Court decisions in Delgamuukw and Tsihogot'in Nation recognizing Aboriginal title and the obligation to consult, First Nations have become critical stakeholders in our economy. Their ability to shape external trade deals was also examined recently by the Federal Court in Hupacasath First Nation in which case the Hupacasath was unsuccessful in their bid to extend the obligation to consult to the free trade agreement with the People's Republic of China.

The purpose of this article is to remind everyone of the obvious: that the path to reconciliation with First Nations will be a long but essential journey for all of us. The non-Aboriginal community and the business community must engage with First Nations in a respectful manner with empathy and understanding. Not only is this the right thing to do, but a new federal government and our First Nations will demand it.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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