canada's assimilation policies

7/29/2019 CANADA'S ASSIMILATION POLICIES

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CANADAS

ASSIMILATION

POLICIESPresentation by

Russell Diabo

First Nations Policy Consultant


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Origin of Canada

Canada bases its territorial integrityand assertion of sovereignty over

Indigenous (First) Nations bycontinuing to rely on the racist and

outdated notions ofTerra Nullius

and the Doctrine of Discovery.


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Chrtien and Trudeau


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Key Elements of 1969 White Paper

on Indian Policy

Eliminate the legislative and constitutional

recognition of Indian status.

Abolish Indian Reserves & impose taxation.

Dismantling of Treaties. Off-load federal Indian programs & services

onto provinces, municipalities and First Nation

communities.

Entrench economic underdevelopment.


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Constitution Act 1982

On April 17, 1982, the Constitution Act 1982

became law. Section 35 of the new constitution recognizes

and affirms the existing aboriginal and treaty

rights of aboriginal peoples.A series of First Ministers Conferences were

held in 1983, 1984, 1985 and 1987, to identify &

define the scope and content of sec. 35, butthese constitutional conferences ended in failure.


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Supreme Court of Canada:

The Judges


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Section 35 - SCC Justification Test

The Van Der Peetcase established the test to

prove Aboriginal rights. In that case theSupreme Court of Canada noted that any testused to identify an Aboriginal right must be

directed to the practices, traditions and customscentral to the Aboriginal people concerned,prior to European contact. Thus, to qualify as an

Aboriginal right the activity must be integraltothe distinctive culture of the Aboriginal societyclaiming the right, as at the time of first contact.


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Treaties are dependant on the terms of the

treaties. However, even in the case of treaties,the terms are not always clear because thedocuments were written in ancient times, or the

treaty text may have not survived, or the writtenterms are at variance with, or are supplementedby oral terms which did not find their way into

the text. Accordingly, courts have devised testsfor determining the terms of treaties in suchcircumstance.


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while the Supreme Court has held that Aboriginal and

treaty rights enjoy constitutional protection, it has alsomade it clear that such rights are not immune fromfederal and provincial law. The courts have determined

that the constitutional protection of aboriginal andtreaty rights provided by section 35 means thatgovernmental action can only infringe Aboriginal and

treaty rights according to strict legal criteria. The testsfor justifying an infringement are set out in the Sparrowcase and subsequent judgments.


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The first issue to be dealt with under this test is to

determine if there is an infringement: is there federal orprovincial legislation that has the effect of interfering

with an existing Aboriginal or Treaty right. If so, there

is aprima facieinfringement of s.35(1). Once an infringement has been found, the analysis then

moves to theJustification test, which shifts the onus on

the Crown to demonstrate that the infringement isjustified. The justification test requires a case-by-caseanalysis and has two aspects.


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First of all, the Crown must prove that the law which

infringes the right has a valid legislative objective. Forexample, conservation for wildlife managementlegislation is a valid legislative objective.

Secondly, the Crown must prove that the infringementis consistent with its fiduciary obligations to Aboriginalpeoples. This branch of the test is an affirmation thatthe Crown has a legal duty to protect the rights of

Aboriginal peoples and will not be lightly permitted toinfringe those rights unless there are very compellingreasons for doing so.


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The honour of the Crown and its duty to fulfill its

fiduciary obligations to Aboriginal people must be thefirst consideration to determine whether or not thelegislative objective is justified. The questions thatshould be asked under this part of the justification test

are: Has there been little as infringement as possible in

order to effect the desired result? Has the aboriginal group been consulted and its rights

accommodated? Has the group been compensated for any

infringements?


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The fact that Aboriginal and treaty rights may be

infringed tends to weaken the constitutionalprotection those rights are accorded in s. 35. It isfair to say that Courts have been overly

deferential to the Crown in assessing whetherlegislation which tends to infringe Aboriginaland treaty rights is justified. This is particularly

the case where the alleged Aboriginal and treatyright is potentially unrestricted, or where the lawin question is criminal or tax legislation.


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It is important to put the justified infringement

aspect into proper perspective. This means emphasizingthe Aboriginal and treaty rights aspect andremembering that the Crown has the burden to prove

that its infringements are justified. According to the legal tests, this requires the Crown to

consult and even pay compensation where it

wishes to infringe s. 35 rights.


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Chief Piapot and his Warriors, and the

Montreal Garrison Artillery, Regina,Saskatchewan, 1885


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Self-Government:

Background to Inherent Right In 1995, the federal Liberal government issued an Aboriginal

Self-Government negotiations policy. The policy is a direct

attack on the sovereignty and nationhood of First Nations. Thefirst thing to know about the federal Aboriginal Self-Government policy is that:

The policy is not specifically for "First Nations" or "Indians".

Throughout the text, the term "Aboriginal people" (notpeoples) isused. This policy then, is to apply not only to the Indian Nations,but also to the Inuit, the Metis, and the various off-reserveIndian organizations that now exist, or may come into existence.

By lumping the unique circumstances and particular legal andhistorical rights of Indian nations in with other "Aboriginalpeople", the policy succeeds in lowering the ceiling of what is onthe table for negotiation, and the overall parameters of thenature and scope of the inherent right.


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Self-Government:

Pre-Conditions to Negotiations Whatever ends up obtaining recognition as an inherent right, there are

preconditions to negotiations which the federal government has laid out in

the Self-government policy. These are that: First Nations must operate "within the framework of the Constitution....

in harmony with jurisdictions that are exercised by other governments".This will require "a harmonious relationship of laws".

The inherent rightdoes not, in Canada's view, include "the right of

sovereignty in the international law sense". Self government agreements and treaties must contain a provision allowing

for the application of the Charter of Rights & Freedoms to aboriginalgovernments.

"As a general rule.... agreements will not deviate from the basic

principle that federal and provincial laws of an overriding national orregional importance will take priority over Aboriginal laws." Federal and provincial laws cannot be automatically displaced by the

introduction of a First Nation law - federal and/or provincial laws maycontinue or coexist, depending on the outcome of negotiations.


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Self-Government:

Whats on the Table! Only some self government rights will be considered inherent.These fall into two

main categories: (i) "matters that are internal, and integral to their own cultures, identities,

traditions, languages, and institutions."[emphasis added] (ii) "matters relative to the special relationship to the land." This is code for

"reserve lands", probably with the option of exercising some kinds of authority onsome Crown lands, where provincial consent is obtained.

These are the rights that Canada is ready to accept as inherent rights already protected bys. 35, although their actual definition andmeaning, and specific application to a particular

Indian Nation, willaccording to Canadas policy--still require negotiation withCanada, and ultimately Canada's consent.

In this sense, inherent rights- their definition and their implementation - aredependent upon Canada (and in some cases provincial) agreement. This is certainly acase where Canada has taken the terminology and made it mean what it was neverintended to mean, in other words double speak: they say inherent, but what Canadameans is that inherent rights are totallyconditional, to reaching agreements with thefederal and provincial governments. The implications of this word-game aresignificant, and shows how deception is till a weapon of Canada.

This self-government policy allows Indian Act Chiefs and Councils to tell theirpeople they are negotiating with the external governments for federal (and provincial)recognition of inherent rights, while the opposite is true.


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Self-Government:

Whats on the Table! There are two basic categories of powers that Canada

has identified that set the limits of self-governmentnegotiations: 1. Existing Inherent Rights:

As already pointed out, in Canada's view existing

inherent rights are those matters which are internaland integral to aboriginal culture and identity, as

well as, those which relate to the management ofreserve lands. Consistent with this approach, the items

which can be negotiated under this heading are thosethat relate to internal governance, administration, andreserve lands. More specifically, this could include "all,some or parts of the following":


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Self-Government:

Whats on the Table! "governing structures" (constitutions, elections, accountability, etc.)

Membership, marriage, adoption, child welfare, social services.

Education, "aboriginal languages, culture and religion", health.

"Administration/enforcement of Aboriginal laws; aboriginal courts ortribunals of the type normally created by local governments forcontravention of their laws"[emphasis added];

policing. "Transfer and management of monies and group assets". Licensing, regulation & operation of businesses "located on Aboriginal

lands"(ie., on reserve). "Management of local and community public works and

infrastructure", housing.

On reserve lands management: zoning, service fees, land tenure andaccess; property management (succession and estates); "expropriationof Aboriginal lands[ie., reserve lands]for local group purposes"; naturalresource management & agriculture.

On reserve harvesting: hunting, fishing and trapping. (probably offreserve too, subject to agreement with provinces).


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Self-Government:

Whats on the Table!

Some of these items (ie., natural resource management,

agriculture, harvesting) are of limited use unless they areaccompanied by an increased land base. Significantly,the federal Self-Government policy does not deal

with the question of additional lands for First Nationsat all. It does, however, state that many of theseheadings of power are "only feasible with a landbase". This is directed at those "Aboriginal people"(Metis and off reserve/non-status) who do not reside onestablished reserve lands.


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Self-Government:

Whats on the Table! 2. Federal Delegated Powers:

There are other subject areas which, in Canada's view, "may gobeyond matters that are integral to Aboriginal culture", butwhere Canada is willing to negotiate agreements on a tripartitebasis "to enable Aboriginal governments to exercise somemeasure of jurisdiction or authority". [emphasis added]

However, this offer to negotiate these subject mattersrequires an admission of overriding federal authority.

In the subject areas that involve federal jurisdiction primary law-

making authority, according to the Self-Government policy,would always remain with the federal government. The exerciseof Aboriginal jurisdiction or authority in these areas couldtherefore not be inconsistent with federal laws.


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Self-Government:

Whats on the Table! The subject areas under this category include:

Taxation powers:The power to tax is not considered by

Canada to be an inherent right in character, eventhough it is clearthat the redistribution of wealth and the stewardship of resourcesfor collective benefit have always been a part of indigenoussocieties. This has major implications when considered alongwith other aspects of the federal self-government policy that

call on Aboriginal governments to raise their own revenues, orwhich allow that the regulation of commerce on reserve is aninherent right.

The position taken by Canada assumes that First Nation

governments do not possess tax immunity or the authority to usetaxation as a means of achieving social and economic policyobjectives, even though these powers are clearly accepted asessential components of existing provincial and federal headingsof power. In this sense, for Indian nations, the inherent right

means less than what other governments take for granted.


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Self-Government:

Whats on the Table! Labour law.

Divorce law: Although Canada seems prepared to concede thatmarriage comes under the inherent right, divorce does not.

The administration of justice; penitentiaries and parole.

Aspects of environmental protection and assessment andpollution control: This is significant, since reserve lands, beingfederal, are subject to federal Environmental Assessment

Guidelines and the Canadian Environmental Protection Act.Canada's willingness to recognize land management as aninherent rightwill not, therefore, necessarily remove federal lawsor authority from reserve lands.

Fisheries co-management: This would seem to be a majorconcern, given ongoing conflicts in British Columbia and theAtlantic.

Gaming: As above, this promises to present difficulties.

Emergency preparedness.


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Self-Government:

Whats not on the Table! There are two categories of subject matters which Canada is not

prepared to negotiate in the context of the inherent right1)

powers related to Canadian sovereignty, and 2) "othernational interest powers".

In these areas, according to the self government policy,exclusive jurisdiction must remain with the federal government.

Moreover, there are no compelling reasons for Aboriginalgovernment to exercise power in these areas, which cannot becharacterized as either integral to Aboriginal cultures, orinternal to Aboriginal groups" [emphasis added]

For some of the headings listed below, however, this reasoning isquite arbitrary and unacceptable, particularly given the fact thatupon contact with the Europeans, Indian nations' treaty makingpowers and control over the conduct of "foreign affairs" wereclearly recognized.


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Self-Government:

Whats not on the Table! (i) Powers Related to Canadian Sovereignty, Defence &

External Relations:

International/diplomatic relations & foreign policy national defence & security

security of national borders

international treaty-making

immigration, naturalization and aliens

international trade, including tariffs and import/exportcontrols

The fact that many Indian nations have traditionally used andoccupied lands and resources on both sides of the USA-Canadaborder confirms that this movement of Indian people is in factintegral to the culture and practises of particular nations such asthe Mohawk Nation.


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Self-Government:

Whats not on the Table! (ii) Other "National Interest Powers":

Management and regulation of the national economy,including "regulation of the national business framework",fiscal and monetary policy, currency, the banking system,trade and competition policy, bankruptcy and insolvency;intellectual property, and the incorporation of federal

corporations. "maintenance of national law and order and substantive

criminal law", including Criminal Code offenses andpenalties and "other criminal laws", as well as emergenciesand the peace, order and good government power.

"Protection of health and safety of all Canadians".

"Federal undertakings and other powers", includingbroadcasting and telecommunications, aeronautics,navigation & shipping, transportation, postal service,

census and statistics.


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Self-Government:

Provincial Role in Negotiations The federal self-government policy makes it clear that

provincial participation in negotiations is essential.

However, the reality of provincial powers, and their impact onwhat can be negotiated, is not dealt with in any detail in thefederal :self-government policy. This silence should not beinterpreted to mean that provincial governments will not alsohave their own lists of "negotiable" and "non-negotiable" itemsfrom their own menu of constitutional headings of power.

According to the federal self-government policy, any FirstNation jurisdiction off reserve (ie., harvesting, lands andresources, off-reserve members & services) or which affects theprovincial headings of power (ie., taxation, commerce) willrequire provincial - as well as federal - participation and consent.


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Self-Government:

Courts vs. Negotiations Canada admits that its views on the nature and scope of the inherent right are

different than those of the First Nations, andrecognizes that "the inherent right

may be enforceable through the courts". However, Canada says that it prefers negotiations: Litigation over the inherent right should be a last resort to

implementation, both because of time and cost factors, and because thecourts are most likely to provide only general guidance and leave it tothe parties to work out detailed arrangements for the exercise of theinherent right...... Negotiations among governments and Aboriginal

people are, therefore, the only practical and effective way ofimplementing the inherent right.

The federal self-government policy does not rule out the potential forlitigation. It states clearly that if litigation is pursued, Canada will take a harder

line on the nature and scope of the inherent right than what is offeredthrough its self-government policy. Although in court Canada "would notdeny the general proposition that the inherent right of self governmentis an existing right within Section 35", it would argue for case by casereview based on circumstances particular to the First Nation:


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Self-Government:

Courts vs. Negotiations In individual cases consideration would be given... to the

particular history of an Aboriginal group, and its

relationship, if any, to an existing land base.

To try and limit the possibility of court action after agreementshave been signed, Canada suggests that the agreements:

... may establish rules of priority to govern conflictsbetween validly enacted Aboriginal laws and federal orprovincial laws and may provide for paramountcy ofAboriginal laws in areas that are purely internal to anAboriginal community and integral to its distinctAboriginal culture.[emphasis added]

In the negotiations, Canada will decide just what is "integral" to a"distinct Aboriginal culture". This will not be left up to the First

Nations.


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Financing Self-GovernmentThis is a crucial aspect of any effort at renewed

institutions of Indian government, and promisesto be one of the most contentious. Canadasself-government policy says that financing self

government is "a shared responsibility offederal, provincial, territorial and Aboriginal

governments".


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Self-Government

Financial Accountability & Control Agreements on financing will take the form of tripartite

agreements, as well as in some cases bilateral agreements between

Canada and the province. Canada "will maintain its position thatit has primary but not exclusive responsibility for on-reserveIndians.... while provinces have primary but not exclusiveresponsibility for other Aboriginal people". This means that the

feds will pay most of the costs for on-reserve Indians and the Inuit,while the provinces will be expected to pay most of the costs foroff-reserve Indians and Metis. Funding for self government mustbe affordable and consistent with the social and economic policies

and priorities of [federal and provincial] governments. The fiscaland budgetary capacity of the federal, provincial, territorial andAboriginal governments will be a primary determinant of thefinancing of self government.


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Self-Government

Financial Accountability & Control This means that even with "self government", Canada

and the provinces will continue to control the pursestrings and set priorities. Note that First Nations"needs", or an equitable distribution of overall fiscalresources, are not mentioned at all with respect to the

financing of self government. Fiscal negotiations will instead focus on existing levels of

funding, as well as the ability of "Aboriginal groups" to

raise their own revenues, and efficiency & cost-effectiveness. These positions and their implicationsneed to be connected to our earlier point made abouttaxation as a non-inherent right.


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Self-Government:

Maintain Existing Spending Levels It is clearly stated that "All federal costs associated with the implementation

of self-government agreements will be accommodated within existingfederal expenditures". [emphasis added] Thisposition is taken even with

the acknowledgement that self government negotiations and new institutions, aswell as one time start up costs, will represent considerable costs. In other words,there will be more to do with the same amount of money - so reductions insome areas will have to take place in order to free up funding resources for newareas of activity.

At the same time, the self-government policy bluntly takes the position that

"self government agreements will not include any program enrichment", whileignoring the fundamental question as to whether or not existing programfunding levels are adequate to meet needs.

However, it is held out that once self government agreements are in place,"Aboriginal governments" will be free to redirect their monies into whatever

areas they want, "subject to maintaining whatever statutory requirementsand minimal standards of program & service delivery which may havebeen agreed upon".


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Self-Government:

Maintain Existing Spending Levels This is very similar to the position taken by Canada in

its ongoing debate with the provinces about blockfunding transfer payments (ie., health care, socialservices and education): overall levels of transfers willbe reduced, but provinces will enjoy more flexibility

with respect to how they spend the remainder. Canada says that governments should work together to

"harmonize funding, program and servicearrangements to ensure the efficient and effective

use of scarce resources". This appears to mean thatduplication of services and funding will be targetedduring negotiations.


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Self-Government & Taxation "Where feasible, Aboriginal governments and institutions

should raise their own revenues in order to reduce reliance,

over time, on transfers from other governments."This pointis particularly important in light of the fact that taxation doesnotappear on Canada's list ofinherent rights, but rather on the next level ofjurisdictions which remain federal.

According to the self-government policy, Indians who strikecostly land claims deals and form their own governments shouldeventually pay taxes back into Canadian society. Crowngovernments are well aware that the financing of self

government and Indian taxation are volatile issues. In thisconnection, they rely on public reaction to diminish Indianexpectations.


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Self-Government & Taxation At the same time, this approach betrays Canada's

supposed commitment to recognition of the inherentright: it is a generally accepted principle in Canada thatall governments have a right to tax, and to be immunefrom tax by other governments. It is also accepted thatgovernments are free to use taxation as a tool inpromoting their economic and social policy objectives.Canada's exclusion of taxation from the list of inherentrights,which it is prepared to recognize does notappear to allow for this recognition. Rather, it doomsIndian governments to perpetual dependence onCrown governments.


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Caledonia


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Comprehensive Land Claims Policy

Recognition vs. Denial & Extinguishment

Canada cannot have its cake and eat it to: it cannot demand thatFirst Nations consider extinguishment of their rights, without

even recognizing those rights as a basis for subsequentnegotiations. The way the policy works now, Canada concedesnothing but gains everything at the end. This is entirely one-sided and bears no resemblance to the process of cooperative

reconciliation that the Court called for. Most important, Delgamuukwmakes it clear that extinguishment

is not required to reconcile Aboriginal title with Crown title,except in extreme and limited circumstances. Canadas continued

insistence on extinguishment, without even a tacit recognition oftitle in the first place, flies in the face of the Supreme Courtsconclusions.


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Recognition vs. Denial & Extinguishment

As already stated, Canada does not admit to the existence ofAboriginal title in its Comprehensive Claims policy. Therefore,

there is no recognition that First Nations actually own the landsand resources within their traditional territories. The resourcerevenue sharing components of existing Comprehensive Claimsagreements reflect this denial - the First Nation share isarbitrarily capped, and does not reflect their ownership of the

resources in question. This is inconsistent with the Courtsfindings in Delgamuukw, which included the recognition thatAboriginal title has an inescapable economic component thatcomes by virtue of First nations right to exclusive use and

occupation of their lands and resources. In addition, the policy explicitly denies that First Nations own

subsurface resources which is also at variance with the findingsof the Court in Delgamuukw, where it concluded that Aboriginaltitle does indeed include minerals, oil and gas, and other

subsurface resources.


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Value of Assets, Compensation, Loan Funding

The Comprehensive Claims policy does not permit thereal book value of Aboriginal assets (ie., traditionallands & resources) to be considered in negotiations.Instead, benefits to come from a final agreement aresubject to arbitrary measurements: for instance,comparability with other settled claims and availablebudgets (which in turn are established unilaterally andarbitrarily).

Again, this is in opposition to the Supreme Courts

findings in Delgamuukw, which confirmed thatAboriginal title is a property right with a realvalue, onenot normally given up without valuableconsideration.


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Value of Assets, Compensation, Loan Funding

Moreover, under the smokescreen of being forward looking,the existing Comprehensive Claims policy explicitly prohibits any

compensation for past losses, damages, infringements orforegone revenues. This too is contrary to the Supreme Courtsfindings in Delgamuukw, where they made it clear that in cases ofinfringement, and depending on the degree, compensation isdue.

Finally, under the existing policy, negotiations are coveredthrough loans given to the First Nation by Canada and/or theProvince, to be re-paid from the final cash settlement. Thisarrangement lends itself to abuse, and has been used in the past

by Canada to manipulate First Nations decision makingprocesses. However, if, as the Supreme Court found, FirstNations who have Aboriginal title actually own their lands andresources, then how can Canada maintain this approach?


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Interim Measures

The existing Comprehensive Claims policy is notorious for itslack of effective interim protections for Aboriginal lands and

resources, and for beneficiaries (no claimant group has been ableto obtain interim relief for elders since the Council for YukonIndians did so back in the early 1980's). Because of this situation,Aboriginal lands and resources continue to be alienated while

negotiations take place, without any remedy. First Nations arenot provided any meaningful interim role in land and resourcemanagement during negotiations. As well, elders receive nointerim relief, despite the fact that negotiations often continue

for years. This arrangement is prejudicial to the interests of FirstNations and their members.


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Interim Measures

On the other hand, by recognizing that

Aboriginal title is a real property right, and thatinfringement requires justification, Delgamuukw

appears to say that interim measures are

essential in any reconciliation of Crown titlewith Aboriginal title - before the proposedinfringing activity, and not after.

Comprehensi e Land Claims Polic


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Federal vs. Provincial Responsibilities The existing Comprehensive Claims policy gives an effective

veto to provincial governments over most of the key areas ofnegotiations - lands, resources, and revenue sharing. The reason

for this, says Canada, is that according to the Constitution, theprovinces have a beneficial interest in the lands and resourceswithin their borders. This puts First Nations in a very difficultposition, since, as history demonstrates, provincial governmentshave been the most hostile towards First Nations and their

rights. Delgamuukwchanged the rules as far as provincial veto power

goes. The Court found that the federal governments s.91(24)responsibilities for Indians and lands reserved for Indians

applies to Aboriginal title lands within provincial boundaries.This means that Canada now has the tools at its disposal toprotect First Nations from the adverse interests of the province,and to compel provincial governments to act in an honourableway.


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Federal vs. Provincial Responsibilities

Federal officials have been at pains to try and

explain this one away. So far, the best they cando is to take a narrow view, that the Courtscomments were only intended to refer to federal

lands (ie., national parks, etc.) within provincialboundaries, or, that Aboriginal title must beproven before any federal obligation kicks in. Itis clear that Canada does not at this time intendto exercise its legislative responsibility to protectFirst Nations from adverse provincial interests.

d


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Unilateral Policy Development

Finally, it is worth taking a step back to look at the policydevelopment process itself. The Comprehensive Claims policy

was designed and imposed unilaterally by Canada, without realparticipation by First Nations, and without taking their legitimateconcerns and constitutional rights into account. It was developedto serve the interests of Canada, without due regard to the rights

of First Nations, or Canadas fiduciary obligations to the FirstNations.

It is precisely this conflict of interest which taints the wholepolicy and process: on the one hand, Canada has a fiduciary duty

to act in the best interests of First Nations; it has a s.91(24)responsibility to protect their interests against the provinces; andit has a duty to act honourably and without sharp dealing.

C h i L d Cl i P li


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Unilateral Policy Development

And yet the current policy, developed and implementedunilaterally, allows Canada to act in its own interests, to the

detriment of First Nations. In Delgamuukw, the Courts comments about consultation and

reconciliation imply that the basis for negotiations should becooperatively negotiated between Canada and the First Nations,

and not unilaterally imposed by one party. This translates into amutually agreed upon policy, which itself is the result of goodfaith negotiations.

Unfortunately, to date the federal government has refused to

commit to amending its policy to conform with the principlesand standards set out in Delgamuukw, let alone undertake policyrevision cooperatively with the First Nations.


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Haida at Supreme Court of Canada


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Post-Haida/TakuAssessmentThe Haida decision means that the Crown has

to have knowledge of any pre-proof claimsand concerns about serious infringements orirreparable harm that is or will be caused by

provincially (and federally) authorized activitiesor plans that affect Aboriginal lands andresources on traditional territory, pending thereconciliation of Aboriginal title and rights withthe Crowns assertion of title, through a treaty,agreement or court determination.


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Post-Haida/TakuAssessment Each community should immediately assess the Crown

processes that they are currently participating in, to see if they

should continue, seek changes, or demand another process.Note: Provincial-Territorial Organizations, their membercommunities and their Tribal Councils must be very carefulabout when they engage consultation with Crown

governments and participate in Crown processes. Look atthe Taku River Tlingit decision to see why they lost theircourt challenge. The SCC determined that they weremeaningfully consulted because of the processes they

participated in and the accommodation they received in theprocesses.


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Post-Haida/TakuAssessment Each community should immediately assess any current

agreements with the Crown and/or third parties

regarding traditional lands and resources, to see if thereneeds to be changes to the agreements or processes, onthe part of the community, or on the part ofgovernment or third parties, as a result of the Haida

decision. Each community should coordinate with their Tribal

Council and possibly their Provincial-TerritorialOrganization, regarding identification of communitypre-proof lands and resources issues and status ofdiscussions with the provincial and federalgovernments.


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Post-Haida/TakuAssessment As much as possible there should be common positions

adopted between and among the member communities

of a First Nation, because as the Haida decisionestablished, the pre-proof consultation andaccommodation phase is only until the Aboriginal titleand rights claims are reconciled with the Crowns

assertion of sovereignty over First Nations traditionalterritory, through a treaty, agreement or courtdetermination. This wont be for awhile, possibly years,perhaps decades, so it is important for the communities

to continue to work together on lands and resourcesresearch and how to use it in the interim period.


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Prima Facie Aboriginal Title Correspondence, journals, maps, and other

records of early explorers; Fur trade records;

Records of missionaries who operated in thearea;

Records of gold prospectors and Gold

Commissioners; Record of the Geological Survey of Canada;


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Prima Facie Aboriginal Title Colonial correspondence and records;

Records of the Reserve creation process; Department of Indian Affairs records;

Other records of the provincial and federal

governments; Records of tribal political organizations;

Trap line registration records; Material produced by early ethnographers;


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Prima Facie Aboriginal Title The work of ethnobotanists;

Recorded or published oral histories; Archeological sites and heritage inventories;

Maps and gazetteers;

Photographs and other visual aids; Newspaper clippings;

Contextual research and a thorough literature search.

(Source: Affidavit of Robin Yvonne Smith, Researcher,Aboriginal Research Centre, Ministry of Attorney-General, B.C.)


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Capacity BuildingRECOMMENDATIONS:

All bands and organizations should review andformalize the role of their lands and resourcestechnical units in their organization.

Institute an education program aimed atincreasing the awareness of management

information amongst First Nation leaders andcommunity members.


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Capacity BuildingRECOMMENDATIONS (continued):

Commission research to find a way of mergingscience and tradition in a single body ofmanagement information.

Until First Nations have full in-house skillcompliments needed to use management

information, they should be funded to supportthe expertise they need.


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Political Accords


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Political Accords Leadership Accord Summit, UBCIC, BCAFN

(signed March 17, 2005)

A First Nations - Federal Crown Political Accordon the Recognition and Implementation of FirstNation Governments (signed May 31, 2005)

New Relationship Accord (adopted May 2005) Transformative Change Accord (signed November

26, 2005)

Kelowna Accord (Press Release & FMM FinalDocuments - November 26, 2005)


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2009 Where to From Here?