Responding to this article, Prof. Garrow has some thoughts about the role of the Governor General (the Crown’s representative) in Canada regarding treaties. The article implies that the First Nations insistence on working with the Governor General is a misunderstanding of how the Canadian government operates today. In actuality, there are very real legal reasons for this request:
Treaty Rights Are Not Policy Matters
Prime Minister Harper’s insistence on excluding Governor-General David Johnston from talks with the First Nations leaders illustrates Canada’s degradation of First Nations’ treaty rights to a ‘policy matter.’ What Harper fails to understand is that First Nations entered into treaties with Great Britain. Moreover, Canada refuses to acknowledge many of these treaties signed by Great Britain and the First Nations, claiming they have not been implemented or sanctioned by Canadian legislation. Thus a representative of the signing country, Great Britain, is imperative at any discussion regarding treaty rights. Harper cannot claim Canada is not bound by the treaties and then also claim the sovereign bound by the treaties, Great Britain, cannot attend the meetings. Furthermore, Canada endorsed the United Nations Declarations on the Rights of Indigenous Peoples, which states that Indigenous peoples have the right to recognition and enforcement of treaties. Yet Harper repeatedly refuses to put forth a mechanism to allow Canada to recognize First Nation treaty rights. Instead he continually attempts to relegate treaties rights to the status of ‘policy matters.’ Given that First Nations predated the formation of Canada, have inherent sovereignty as recognized in treaties, and are now incorporated into the Canadian Constitution, they are above and beyond simple policy matters. If Canada decides not to honor its legal obligations by implementing First Nations’ treaty rights, then First Nations have no option but to demand a meeting with Great Britain and Canada, to hold Canada accountable. Unfortunately, Harper and the Canadian government do not understand the legal foundation of First Nations and as a result, First Nations’ sovereignty and Chief Spence’s life hangs in the balance.