Saskatchewan Must Implement Its Own UNDRIP Legislation If It Is Serious About Reconciliation With Indigenous Peoples

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(2023 Recipient of the annual CBA Saskatchewan Law Student Essay Contest)

The treatment of Indigenous peoples in what is now known as Canada is now recognized as an act of genocide.[1] Denial of this fact in the current state is plainly attributed to ignorance, not a lack of knowledge or publicly available information. Inquiries such as the Report of the Aboriginal Justice Inquiry of Manitoba (1991);[2] the Royal Commission on Aboriginal Peoples (1996);[3] the Truth and Reconciliation Commission of Canada (2015);[4] and the National Inquiry into Missing and Murdered Indigenous Women and Girls (2019)[5] illustrate the painful history of the treatment of Indigenous peoples on Turtle Island. Akin to the age-old adage commonly used in courtrooms, ignorance excuses no one.[6]

Indigenous peoples in Saskatchewan are continuously subjected “to the storied past of a white settler narrative and a discourse of emotional belonging that racializes the national narrative in this Canadian prairie landscape, and that makes white innocence and entitlement seem natural and normal”[7]. This normalized colonial narrative reinforces “white settlers as innocent to the racism and colonial violence on which their nature sense of belonging is premised.”[8]

Saskatchewan in the colonial state we see it today is premised on the concepts such as the Doctrine of Discovery, white supremacy, and an inherent inferiority of the original inhabitants of these lands. A very recent example of this is the Saskatchewan government’s implementation of the Saskatchewan First Act (“Act”) and its reliance on the Natural Resources Transfer Agreement, 1930.[9] There was no consideration for the Numbered Treaties or the Indigenous peoples’ inherent rights to these lands as the original inhabitants. It is just one example of a province’s claim to work alongside the Indigenous governments within their boundaries, while continuing to actively work against them behind closed doors. Adopting and implementing UNDRIP legislation in Saskatchewan would be an active first step in repairing the relationship between Indigenous peoples of these territories and the Saskatchewan government. Albeit a welcomed societal change, land acknowledgements are merely lip service if they are not accompanied with active actions to engage in reconciliation.

Saskatchewan needs a provincial UNDRIP legislation for two reasons: one, because the federal legislation only imposes obligations on the federal government; and two, because of Saskatchewan’s role in the cultural genocide against Indigenous peoples. At this moment, there is no legislation in Saskatchewan that mandates the recognition and consideration of the inherent rights of Indigenous peoples. While there would presumably be back lash to recognizing inherent Indigenous rights at the outset, I hope that it would eventually remove the topic from constant political debate. Removing Indigenous rights from the political debate would create space for the Indigenous and non-Indigenous residents of the province to finally have the relationship intended by our ancestors. This recognition of legitimacy of Indigenous nations and peoples by the colonial government would establish a positive foundation to begin building true nation-to-nation relationships and parallel governance structures as intended by our ancestors when negotiating the treaties.

I anticipate opposition to this legislation would centre around section 35 of the Constitution Act, 1982; however, this section only requires consultation to apply in areas where an Indigenous group can prove they have an Aboriginal right and/or title. Further section 35 puts the onus on Indigenous peoples to prove, up to a colonial system’s standards, that their Nation has a relationship with that area of land. It assumes that the Crown has all underlying to the land otherwise – a position that reinforces the Doctrine of Discovery and complete disregard for Indigenous history, customs, or oral traditions. Oral testimony from Indigenous elders was only first allowed in Delgamuukw v British Columbia[10]. A provincial UNDRIP would require the government to have free and informed consent from the Indigenous nations every step of the way to ensure both groups are involved in governance decisions, as well as respect and recognition of Indigenous nations right to self-determination, their cultures, their legal processes, and their history.        

The Province of British Columbia and Tahltan Central Government are an excellent example of a province and Indigenous nation working collaboratively under the Declaration on the Rights of Indigenous Peoples Act,[11] and entering into the first consensus-based decision-making agreement.[12] Honourable Murray Rankin, Minister of Indigenous Relations and Reconciliation for the Government of British Columbia, described this as “a tangible example of the Province’s commitment to changing our relationship with Indigenous Peoples. Together, the Tahltan Central Government and the Province are leading the way toward a new model for advancing free, prior and informed consent”.[13] British Columbia is an excellent example of a province and Indigenous government putting their adversarial past behind them and agreeing to move forward collaboratively in a healthy and positive way. While I recognize that British Columbia is different in that the province is on unceded Indigenous territory and Saskatchewan is built on the Numbered Treaties, I believe that each province’s history in its treatment of Indigenous peoples are similar enough for Saskatchewan to model its own UNDRIP legislation after.        

An example of where Saskatchewan could do better by focusing on an UNDRIP reconciliation framework is the current Île-à-la-Crosse Residential School Settlement. Rather than the provincial government focusing on accepting responsibility for their continuous role, to varying degrees, in the operation of the school, the government’s position is that it did not own or operate the school.[14] This is despite documentation that the government funded the school for most of its existence.[15] The Île-à-la-Crosse Residential School was excluded from both the Indian Residential Schools Settlement Agreement and the Day Schools Settlement Agreement because Saskatchewan ran if for a large period of its existence, with the majority of students being Métis.[16] This is a failure by the provincial government to both recognize the school and acknowledge the roles in its operation. Adopting an UNDRIP legislative approach would put the focus on recognizing the severe abuse that Indigenous children were subjected to at this school without involving bogus and tired fighting from the provincial government.

Times are changing. Indigenous peoples can no longer be ignored and silenced. Enacting Saskatchewan’s own UNDRIP legislation would reinforce the Treaties that are the foundation of this province and require the province to finally engage nation-to-nation with Indigenous peoples as intended by our ancestors. It would require current and future provincial governments to affirm that that provincial government recognizes and understands that “Indigenous Peoples have the right to self-determination, and by virtue of that right they freely determine their political and freely pursue their economic, social and cultural development”.[17] For the first time since the arrival of settler colonists, Indigenous peoples would finally be viewed as self-governing partners in Confederation and governance rather than adversaries. Rather than viewing this future as one of confrontation, I propose framing agreements under a provincial UNDRIP as a way of collaborative governance,

a mutual consent process: it is about governance and changing how decisions are made. With collaborative consent, Indigenous and non-Indigenous governments commit to working together over the long run, each with their asserted authority, and with a goal of achieving each other’s consent on decisions, policies and plans.[18]

UNDRIP requires free, prior and informed consent at all stages of consultation, thereby creating a true partnership between Nations.  A true partnership requires parties understanding that others may not want what the other wants – with the intention to reach a compromise. I cannot think of a successful example where the two parties did not consult, discuss, or negotiation with each other prior to entering any agreement – regardless of area.    

A provincial UNDRIP will impact both Indigenous and non-Indigenous peoples and there will be difficult conversations occurring on both sides. Successfully implementing this requires acknowledgement of the horrific history of colonialism in Canada, particularly in Saskatchewan, and a commitment to right those historical wrongs. While not all the truth about the treatment of Indigenous peoples have been made public, it is time to move from looking back to looking forward. The harms we have experienced cannot be undone. It is apparent that this truth is not actively discussed nor acknowledged in many government discussions – a provincial UNDRIP would bring this history to forefront. We do however have the power to alter the course of our future, beginning with cooperation from the settler government(s). This includes acknowledgement that this province is:

1. governed by Treaties,
2. that Indigenous peoples have inherent, Aboriginal, and Treaty rights,
3. that Indigenous people are self- determining and self-governing, and
4. that Indigenous peoples had societies and economies thousands of years before the arrival of settler colonists.

Let me be clear: a provincial UNDRIP, in my view, has more of an impact on the non-Indigenous peoples of the province than the Indigenous peoples. We have always known that our peoples and Nations are inherently self-determining and self-governing, and do not require the “approval” of anyone. We are going to do it. Whether the province chooses to cooperate or continue the colonial denial of Indigenous peoples rights and our history is up to them. It is time to finally embark on true partnerships between Indigenous and non-Indigenous peoples and realize our ancestors’ dreams and intentions. It is time for Saskatchewan to surrender its ill-informed biases and narrow view of this province’s history, and implement a provincial UNDRIP legislation.

Author: Jordan L. Calladine (she/her)

Jordan L. Calladine is a Métis woman whose family comes from across Saskatchewan. Her paternal settler family last name is Calladine, with roots in Southern Saskatchewan, specifically Weyburn, Regina, and Melville. Her maternal Métis and Cree family last name is Bouvier, with roots in Northern Saskatchewan, particularly the communities of Beauval, Île-á-la-Crosse, Green Lake, Meadow Lake, and Canoe Lake Cree First Nation. She grew up in Lethbridge in Treaty 7 Territory – the traditional and ancestral lands of the Blackfoot Confederacy, Tsuu T’ina Nation and Stoney Nakoda First Nation, and the Métis Nation of Alberta, Region 3. She is currently in her third year of law school, and is living, working, and studying in Saskatoon, Treaty 6 Territory and the Traditional Homeland of the Métis.