There's deep frustration between rhetoric and reality of reconciliation, says Indigenous lawyer Bruce McIvor
McIvor lays out lack of progress made on reconciliation in new book
Bruce McIvor is one of Canada's most prominent Indigenous lawyers. For the past two decades, he's worked with First Nations clients to defend their rights — sometimes against the Canadian government.
It's a position that's given him a front-row seat at how Indigenous rights are being handled in the country — and how his clients are sometimes let down.
"I'm sitting there … waiting for a meeting to begin, preparing for it in a small town in northern Ontario," he told The Current. "And the government officials … were laughing about all the ways they were going to say no to my clients when we meet in a few minutes."
"It's hard to take for me personally, but more importantly, for Indigenous people and for my clients. Whether they're laughing in their faces or not, they know they're not being taken seriously."
McIvor, who is Métis, addresses these frustrations in his new book, Standoff: Why Reconciliation Fails Indigenous People and How to Fix It. He spoke to guest host Robyn Bresnahan about the lack of progress that has been made in Canada about Indigenous rights and reconciliation. Here's a part of their conversation.
What word would you use to sum up how you're feeling about reconciliation right about now?
I think frustration sums it up … A deep level of frustration with the gap between the rhetoric of reconciliation and the reality on the ground, and something that they experience on a day-to-day basis.
And how does that fit into the notion of reconciliation?
The core problem [with reconciliation] that I see is that the way it's been framed by the courts in Canada is that you're trying to do the impossible. You're trying to reconcile a right — which is the pre-existing rights of Indigenous people to their land — with a lie.
The lie — and it's a hard one for a lot of non-Indigenous Canadians to hear — is that colonizing governments can just show up, plant a flag and take control over Indigenous lands and displace Indigenous laws. And that is irreconcilable, that right with that lie.
As long as that's what reconciliation means ... I don't think we have much of a chance of being successful.
I want to play you a clip. This is from Marc Miller, who is the new minister of Crown-Indigenous Relations. Here's what he said when he was asked about his priorities in his new post.
What's your reaction to what Marc Miller had to say there?
I think his heart's in the right place and he wants to do the best possible. I disagree, though, that it's a difficult thing to do, [to give] land back. I don't think it's as difficult as governments think.
There are definite impediments there. Part of it is that the provincial governments need to be on side. It's not just a matter for the federal government. And you see this disconnect across the country between provincial policies and federal policies.
And a perfect example is the embarrassing statement that came out of New Brunswick a few weeks ago, that they were going to prevent government officials from doing land acknowledgements. I think that was a total embarrassment for New Brunswick and a good sign of how out-of-touch certain provinces are and the disconnect between federal government policies and provincial policies.
Even when a politician's heart is in the right place … do you feel that they are completely hobbled by the system to change things?
There's that gap between what ministers like Minister Miller say, what the prime minister says, and the reality of, unfortunately, the systemic racism that Indigenous people are faced with on a daily basis, emanating from provincial and federal governments. And that really needs to change.
You talked about the systemic racism — and considering that the legal system has its foundations in Canada's colonial history, how useful a tool is it for your clients to uphold their rights?
One of the things that's really important [is] it's Indigenous people that are taking the risk when they go to court.
Governments have all the advantages … They really have nothing to lose. It's like playing poker with someone who's got an unlimited amount of money. So it puts Indigenous people in a difficult situation when they're trying to defend their rights in Canadian courts.
I think the most interesting thing and the most important thing that's going on across the country are Indigenous people that are saying we've had enough of these Canadian laws. We need to have space to exercise our own inherent Indigenous laws. I think that's the future.
What does that look like?
We've got this concept in Canadian law called co-operative federalism, which is basically acknowledging … there are provincial laws and federal laws, and sometimes they overlap and the provinces and the federal government need to get together and sort out a way that they will work together.
I think what's important is that those principles can be and should be applied to creating space for Indigenous laws.
Indigenous people should have the respect from the federal and provincial governments to make their own decisions. Indigenous people have their own jurisdiction.-Bruce McIvor
The courts have been clear: Indigenous laws existed in this country before the colonizers arrived. The Canadian Constitution didn't wipe out that lawmaking authority. It may have been oppressed now through policies and legislation such as the Indian Act, but it's still there.
And now it's important to take a positive step forward to acknowledge those laws exist. They need to be respected, and there needs to be space for Indigenous people to exercise those laws.
A lot of the cases that you have worked on revolve around the concept of the duty to consult. Why has there been such a sticky issue?
When the duty to consult is engaged, government officials come out and all too often take a position: 'we are making a decision, we intend, we are contemplating this decision, tell us what you think about it.' And then go back and make a decision.
That's fundamentally wrong because Indigenous people should have the respect from the federal and provincial governments to make their own decisions. Indigenous people have their own jurisdiction.
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What do you say to critics who argue that asking for consent for things like pipelines or mining projects, logging, amounts to giving Indigenous people, air quotes, veto power?
I use the word veto as a barometer when I work across the country. The more I hear that word used by provincial government officials, the more unsophisticated I know they are.
Veto in that sense is simply a statement being made by the government that we have all the decision-making power. You don't have a veto. That means that regardless of what your position is, at the end of the day, we're going to push this through.
That's not what the court meant. Most importantly, I don't think that's what the law means. And I think we could move a lot further down the road to a meaningful conversation if government officials … instead said, 'We're here contemplating this decision. What do we need to do to get your consent? What do we need to do?'
That's a very different conversation, and that would be a productive conversation across the country.
Written by Mouhamad Rachini. Produced by Alison Masemann. Q&A has been edited for length and clarity.
