first nations strategic bulletin oct-dec 2013

FIRST NATIONS STRATEGIC POLICY COUNSEL

Special points of interest:

Unfinished Busi-

ness—Constitutional

Conferences on Abo-

riginal & Treaty

Rights

AFN Collaborating

with Harper Impacts

on First Nations Abo-

riginal & Treaty

Rights

AFN agreed to SOC

Section 35 Principles

Summary of Legisla-

tion affecting First

Nations

By Arthur Manuel, Indigenous Network on Econ-omies and Trade (INET)

Everyone knows the status quo systematically violates the human rights of the vast majority of Indigenous Peoples. We need to change that! But how do we create this change? In the first ever report of its kind on 14 January, 2010, the United Nations reported:

“The world’s 370 million indigenous peoples suffer from disproportionately, often exponen-tially, higher rates of poverty, health problems, crime and human rights abuses, stressing that self-determination and land rights are vital for their survival.”

It is important to understand the magnitude of the problem means that Indigenous Peoples need to create the kind of political tension that eradicated segregation in the United States and apartheid in South Africa. The primary force behind the status quo is colonialism. Colonialism was an arbitrary system that European countries used to (try to) justify their domination of the world.

Dispossession, dependency, economic exploitation and oppression are the key pow-ers used by colonial countries to dominate Indigenous Peoples. Each of these forces are deeply integrated into the constitutional and legal system of countries like Cana-da under Aboriginal law. Aboriginal law has its roots in colonialism. It segregates us from the settlers but it also limits our capacity to be fully free as Indigenous Peoples.

The Defenders of the Land and Idle No More are part of the Indigenous movements that are calling upon Indigenous Peoples to challenge the status quo. They are in practical terms raising the issues of dispossession, dependency and economic ex-ploitation. The real problem with doing this is that you will be confronted by the sys-temic means/powers of the status quo wanting to maintain control over Indigenous Peoples. I know this from the Sun Peaks dispute and more recent disputes like at Elsipogtog.

The legitimate process of maintaining control is based on the colonial doctrines claiming that Europeans dispossessed us from our traditional territories. That is the underpinning behind Crown Land and the Injunctions that industry and the govern-ments use in the courts to get enforcement orders to use the Royal Canadian Mounted Police, the Ontario Provincial Police, the Sûreté du Quebec and even the army to crush our efforts to be free. Injunctions are normally won by the industry or govern-ments and not by Indigenous Peoples.

The Injunctions do not address the substantive legal issues behind Indigenous rights but merely follow the status quo concept that our lands were legally and justifiably stolen from us. This kind of colonial dispossession has been condemned by the Unit-ed Nations because it undermines World peace because of the yearning of the dis-

Indigenous Self-Determination, Not Termination

Inside this issue:

FIRST NATIONS STRATEGIC BULLETIN

OCTOBER-DECEMBER 2013 VOLUME 11, ISSUES 10-12

IP’s Self-Determination 1

AFN Collaboration 5

AFN CC-SOC to Harper 14

SOC Section 35 Principles 15

Summary of Legislation 18

Contact Us 20

Arthur Manuel speaking to the North American Indigenous Peoples Caucus, June 7, 2013, in Alta, Norway. (Photo by

R. Diabo)

possessed and dependent peoples to be free.

Indigenous Peoples have to take an in-depth look at the dependency programs and ser-vices that are funded by Canada and administered at our Band Offices. We need to take a look at these dependency programs because they make us elect leaders who play into this colonial strategy that dispossesses us of our traditional territories. You need to be able to connect the dots between dispossession, dependency, economic exploitation and oppres-sion. You need to understand how these negative concepts are connected to our strategy for the future.

Decolonization, self-determination, freedom and economic independence are the key in-gredients of our struggle as Indigenous Peoples. The Harper government is attempting to tie the knot tighter between his colonial objectives and the direction of our establishment organizations, by cutting funding and prohibiting them from doing political work. Harper wants our Assembly of First Nations, Provincial Territorial Organizations, Tribal Councils and Chief & Councils to become nothing more than Indian branch offices to the dependen-cy mechanism of the Aboriginal Affairs Ministry (formerly the Department of Indian Af-fairs).

It is important to see the connection between dispossession and dependency. My father, George Manuel, used to say he would not get a house under the CMHC program because he does not feel he should pay for his house because the white governments got his land. He used to say: How am I supposed to pay for my house when I do not have the power to make money off my land? This is the primary problem behind accepting responsibility for programs and services like health care and education without having our Aboriginal and Treaty Rights recognized and affirmed by Canada and the provinces.

Programs and services need to be directly linked to recognition and affirmation of our Ab-original and Treaty Rights and control over our lands and resources otherwise we will be subject to the charity and dependency of the government of Canada and the provinces. The take over of responsibility for programs and services is key problem the establish-ment Indigenous organizations are involved in right now. The grassroots need to under-stand that our children and future generations will be inhibited by the agreements we are signing today. Russell Diabo continually examines these agreements and aptly calls them Termination Agreements.

The Termination Policy is basically the final step to colonization of Indigenous Peoples. The Termination Policy eradicates Indigenous Peoples and makes dispossession complete by constitutionally and legally eliminating Indigenous Peoples. The Termination Policy was expressed by Canada in the White Paper on Indian Policy of 1969 and through existing government strategies to terminate our rights. The Termination Policy is like segregation in US and apartheid in South Africa. It must be defeated if we are to achieve freedom as Indigenous Peoples. We need to take examples from men like Nelson Mandela and Martin Luther King.

Nelson Mandela was a great man because he gave up his personal freedom to fight against apartheid. He could have gotten out of prison much earlier than the 27 years he spent in jail if he had been willing to concede that apartheid was okay. He chose not to and it took 27 years before the white South African governments had to admit that apartheid was wrong. Reconciliation did not happen until after apartheid was off the table. Mr. Mandela stood on principle. Our leaders must also stand on principle because our issues are also based on the human and indigenous rights of our grassroots peoples.

We should stop negotiating with governments that do not recognize our Aboriginal and Treaty Rights. We should stop negotiating with the governments to take over programs and services unless our Aboriginal and Treaty Rights are recognized and affirmed, so we can build an independent economic base for our people. We should stop negotiating un-

‘Self-Determination’ continued from page 1


“Decolonizationself-

determination, freedom and

economic independence

are the key ingredients of

our struggle as Indigenous

Peoples”

Mi’kmaq Woman facing off with RCMP at Elsipogtog.

RCMP deployed at Elsi-pogtog during Fracking

protests.

der any policy that does not recognize and affirm our Aboriginal and Treaty Rights first. We should take example from Nelson Mandela that we will not negotiate with the govern-ments if “Termination” is still on the table, like Nelson Mandela refused to negotiate if “Apartheid” was still on the table.

I know a lot of establishment leaders do not like walking away from the negotiating table unless there is some kind of alternative. It is clear from previous experience that if you cannot get justice here in Canada you need to get justice at the international level. When Canada sought self-determination from Britain by patriating the Canadian Constitution in 1982, Indigenous Peoples through the Constitution Express 1980 and the British lobby in 1981, ensured that our rights and the requirement for Aboriginal constitutional confer-ences were added to the Canadian Constitution.

This meant that self-determination was not just to benefit settlers exclusively but also in-cluded the right of Indigenous Peoples to self-determination based on our Aboriginal and Treaty Rights. The failure of the Aboriginal Constitutional Conferences of the 1980’s makes the Indigenous Peoples right to self-determination an important outstanding human rights matter. Canada and the provinces cannot rely on their proposition that we can resolve this before the Supreme Court of Canada, because the Supreme Court of Canada is set up on the colonial foundation that established it as a Court.

Furthermore, the Supreme Court of Canada is a domestic court and cannot adjudicate over the international right of Indigenous Peoples to self-determination. The right of Indigenous Peoples to self-determination emanates from the colonial relationship we had with Britain and inside Canada. It is important to understand that the United Nations has condemned colonialism in all its manifestations. Our problem as Indigenous Peoples is that Canada is trying to convince the United Nations that we are not entitled to self-determination because we are domestic and dependent Canadian people without the “s”.

The “s” in peoples is important because to have standing at international law you have to be a people and therefore as Indigenous nations we are peoples with standing at interna-tional law, not just a group of people or a minority in Canada.

We need to dispute Canada’s colonial and arbitrary position by bringing the facts to hu-man rights bodies responsible for the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights regarding self-determination. Article 1 in both these International human rights treaties, also known as the decolonization treaties, states:

“1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

It is important to understand that Canada and other countries like the United States, New Zealand and Australia have all been very skillful in keeping us – Indigenous Peoples – from asserting our right to self-determination under Article 1.

They fought us at the international level for decades, especially opposing our right to self-determination. The provision was the most disputed in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), but it is now part of international law and included in Article 3, setting out:

Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, so-cial and cultural development.”

So there can no longer be a debate internationally that we as Indigenous Peoples have the right to self-determination, after UNDRIP was adopted in 2007 and now even endorsed by the only four countries who initially voted against it: Canada, the US, Australia and New Zealand. Once the World forms a consensus on an important principle like this it becomes

‘Self-Determination’ continued from page 2

“We should take example from Nelson Mandela that we will not negotiate with the governments if “Termination” is still on the table, like Nelson Mandela refused to negotiate if “Apartheid” was still on the table”

VOLUME 11, ISSUES 10-12

a binding principle of international law.

In Canada we have countered their argument that we can exercise our self-determination as part of Canadian society, through asserting our sovereignty on the ground and through forcing Canada to constitutionally recognize our Aboriginal and Treaty Rights and call for more Aboriginal constitutional conferences. The fact those conferences of the 1980’s failed, supports the position we need international supervision and monitoring to achieve self-determination.

The Indigenous Peoples living inside Canada have a very strong position to address this matter before the United Nations Human Rights Committee. Canada will be appearing before this Committee in October 2014 to review the questions that the Committee has for them and to review their 6th and 7th Periodic reports in 2015. You need to understand that the UN Human Rights Committee specifically asked Canada in 2005: “Please provide infor-mation on the concept of self-determination as it is applied to Aboriginal peoples in Cana-da”.

Canada responded in writing in October 2005 to this question by saying that Indigenous Peoples exercised self-determination inside Canada and Canada included recognition of Aboriginal and Treaty Rights inside the Canadian Constitution 1982. Furthermore, Canada said that self-determination was presently being negotiated before the working group re-sponsible for drafting the UN Declaration on the Rights of Indigenous Peoples. The Decla-ration was adopted in 2007. Therefore it is appropriate and indispensable to bring this matter back to the 2015 Periodic Review of Canada by the UN Human Rights Committee. Canada can no longer skirt the issue by pointing to ongoing negotiations, when UNDRIP is now adopted and the world agrees that Indigenous Peoples have the right to self-determination and all associated rights.

Indigenous Peoples and the Indigenous leadership need to connect the dots from the local to the international level in order to achieve justice. Indigenous Peoples need to under-stand that the fundamental issue involved is our land and the natural wealth that it produc-es. Our biggest strength is in the economic uncertainty that our legal, constitutional and political actions create for the status quo. Canada and the provinces have gotten used to the colonial privilege of having the final say on resource development in our Aboriginal and Treaty Territories. That is why Indigenous Peoples need to expect that we will meet with a lot of stiff opposition when we fight against the economic exploitation of our impov-erished masses.

We cannot have reconciliation until the Termination Policy is off the table and our Aborigi-nal and Treaty Rights are recognized, affirmed and implemented by Canada and the prov-inces. Recognized and affirmed not only in the constitution but on the ground. We need to negotiate for results not money to keep a negotiation process going that produces nothing except more debt and dependency. It is not disrespectful to talk about collaborators as being counter-productive to our human rights. We need to stand up and fight colonialism in all its manifestations. We need to root out the racism and impoverishment that colonial-ism systematically creates for the vast majority of our peoples. We need to stand strong on principle like Nelson Mandela did.

The Creator did not give the settlers the right to exclusively benefit from our natural wealth and resources. It is colonialism and its racist legal processes that give the settlers the pow-er to economically exploit us as Indigenous Peoples. It is our responsibility to move Cana-da beyond exploitation of us as Indigenous Peoples and help the global community move one step closer to peace and security for all peoples.

‘Self-Determination’ conclusion from page 3


“We need to negotiate for

results not money to keep

a negotiation process going that produces

nothing except more debt and

dependency. It is not

disrespectful to talk about

collaborators as being counter-

productive to our human rights. We

need to stand up and fight

colonialism in all its

manifestations“

By Russell Diabo This past year began with the combined ac-tions of the Idle No More movement teach-ins and demonstrations and Attawapiskat Chief Theresa Spence’s hunger strike. Chief Spence’s main demand to end her hunger strike was that a national meeting occur be-tween the Governor-General, the Prime Minis-ter and Chiefs across Canada to discuss the Crown’s breaches of the Treaties and the re-sulting poor social conditions within First Na-tions communities.

January 2013 was the scheduled time for Prime Minister Stephen Harper to report on the so-called “progress” that had been made on the

commitments he had made to the Assembly of First Nations at the January 2012 Crown-First Nations Gathering (CFNG).

As of the December 2012 AFN Special Chiefs’ Assembly there had been no meeting Scheduled between AFN and government of Canada for the delivery of the Harper govern-ment’s 2012 CFNG progress report, but with the national media’s coverage over the month of December of:

1) the Idle No More demonstrations and demands to stop Harper’s Omnibus Bills C-38 and C-45; and 2) the daily images of Chief Theresa Spence starving herself for a meeting with the Governor-General, the Prime Minister and the Chiefs to talk about broken Treaties.

By early January 2013, as a result of the national media reporting on these actions Canadi-an public attention was focused as well. Prime Minister Harper decided he would agree to meet with a delegation from AFN on January 25, 2013.

AFN National Chief Shawn Atleo went to Victoria Island to see Chief Spence to tell her the news about the scheduled PM-AFN meeting on January 25th, but Atleo emerged from the meeting with Chief Spence to tell the media he was worried about Chief Spence’s health and asked the Prime Minister to hold the meeting sooner.

Prime Minister Harper relented and agreed to hold a meeting with an AFN delegation on January 11, 2013. AFN immediately put out a notice there would be pre-meetings at the Delta Ottawa starting on January 7th.

However, the AFN general meetings of January 7-11, 2013, were not an AFN Special Chiefs’ Assembly under the rules of the AFN Charter, so the National Chief and the AFN Executive Committee were not technically bound by the outcomes of the AFN general meetings of January 7-11, 2013.

Many of us were in Ottawa, including myself during the week of January 7-11, 2013, and witnessed the dynamics of AFN general meetings that occurred that week.

By the end of that week, the meeting on Treaties and social conditions with the Governor-General and Prime Minister, which had been demanded by Chief Theresa Spence did not occur.

Ignoring Chief Spence’s decision to boycott the scheduled PM-AFN meeting of January 11th because it was not being held by the Queen’s representative in Canada the Governor-

AFN Collaboration with Harper’s SOC’s Threatens First Nations Aboriginal & Treaty Rights: Supports Harper’s Termination Plan!

“the AFN general meetings of January 7-11, 2013, were not an AFN Special Chiefs’ Assembly under the rules of the AFN Charter, so the National Chief and the AFN Executive Committee were not technically bound by the outcomes of the AFN general meetings of January 7-11, 2013”


Attawapiskat Chief Theresa Spence at a general gathering with First Nations People in the Delta Ottawa on January 11, 2013, after the PM-AFN meeting occurred without her. (Photo by N. Diabo)

NC Atleo at AFN general meeting on Jan. 10, 2013.

(Photo by R. Diabo)

General, National Chief Atleo led an AFN delegation into the Langevin Building where the PM-AFN meeting took place.

As the AFN delegates entered the building they had to pass through the thousands of Idle No More demonstrators who were surrounding the Langevin building. The Idle No More demonstrators were supporting Chief Spence’s demand and called on the AFN delegates not to enter the building. Of course the AFN delegates ignored this request and met with the Prime Minister.

National Chief Atleo and the AFN delegation went in to the PM-AFN meeting with eight demands all of which were rejected by Prime Minister Harper except for a process of “high level talks”.

Many First Nations Chiefs, Leaders and Peoples have argued, by the AFN delegation going in to meet the Prime Minister without the Governor-General—the Queen’s representative convening the meeting—not only was it disrespectful to Chief Theresa Spence but under-mined the special relationship the historic Treaties had established with the Crown as rep-resented by the Queen not the government of Canada.

All that came out of the January 11th PM-AFN meeting were two processes under Harper’s control, called Senior Oversight Committees (SOC’s): 1) on Treaties; and 2) on Compre-hensive Claims (so-called “Modern Treaties”. The two SOC’s had federal officials and AFN representatives on them.

AFN Special Chiefs’ Assembly As of the December 2013, AFN Special Chiefs’ Assembly there had been no significant results from either of the Canada-AFN SOC’s.

The Treaty SOC, hadn’t gone anywhere since the January 11th PM-AFN meeting because AFN was waiting on Prime Minister Harper to answer letters clarifying some of the Treaty Chiefs’ concerns about the mandate of the SOC process.

Both of the Canada-AFN SOC processes mandates had expired as of December 1, 2013. To continue the two SOC processes, the AFN and the Prime Minister would have to agree to renew the SOC mandates.

During the December 2013 AFN Special Chiefs’ Assembly a resolution was passed end-ing AFN’s participation in the Treaty SOC process by not seeking a renewal of the man-date of the Treaty SOC.

As for the Comprehensive Claims SOC, there were discussions but no resolution on whether or not AFN should ask the Prime Minister for a renewal of the Comprehensive Claims SOC.

Representatives from First Nations who had NOT compromised their Aboriginal Title and Rights by signing Final Settlement Agreements and who had NOT agreed to negotiate un-der the federal Comprehensive Claims Termination Policy, stated in the Assembly that the Comprehensive Claims SOC should at the very least be reviewed and discussed internally with all affected First Nations, but AFN should not seek any mandate to renew the Compre-hensive Claims SOC until then.

Those at the AFN Special Chiefs’ Assembly who wanted the Prime Minister to renew the mandate of the Comprehensive Claims SOC despite its lack of progress in reforming the Termination Policy were led by Chiefs from the BC First Nations Summit who are part of an “actively extinguishing group” negotiating under the BC Treaty Extinguishment pro-cess.

Since there was no resolution on whether or not AFN should seek the renewal of the man-date of the Comprehensive Claims SOC, under the rules of the AFN Charter, it fell to National Chief Shawn Atleo and the AFN Executive Committee to decide what to do

‘AFN Collaboration’ continued from page 5


“National Chief Atleo

and the AFN delegation

went in to the PM-AFN

meeting with eight demands

all of which were rejected

by Prime Minister

Harper except for a process

of “high level talks”

PM-AFN Meeting of Jan. 11, 2013.

about asking the Prime Minister about the mandate renewal of the Canada-AFN Compre-hensive Claims SOC and in the process they have ignored the AFN-Comprehensive Claims Policy Reform Working-Group as will be explained below.

AFN-Comprehensive Claims Policy Reform Working-Group Since 2009, AFN had created a Comprehensive Claims Policy Reform Working Group (CCPRWG) composed of Chiefs and technicians with a mandate from the AFN Chiefs-in-Assembly to press the government of Canada to reform the Comprehensive Claims Policy from being one of extinguishment and denial to “recognition and affirmation” as set out in section 35 of Canada’s constitution.

It was during the 2nd ballot of the 2009, AFN Election in Calgary that National Chief candi-date Shawn Atleo, committed to non-negotiating Chiefs from BC and Quebec that as AFN National Chief he would press the federal government to reform the Comprehensive Claims Policy.

After he won the 2009 AFN Election, National Chief Shawn Atelo kept his word and estab-lished the AFN Comprehensive Claims Policy Reform Working-Group.

The AFN-CCPRWG had First Nations participating from both the negotiating side and the non-negotiating side. The discussions of the AFN-CCPRWG quickly moved to how to get the Harper government to agree to reform the Comprehensive Claims Policy.

The First Nations who were not compromised by negotiating under the federal Compre-hensive Claims Extinguishment Policy wanted a strategy to apply pressure on the Harper government to agree to change the Comprehensive Claims Extinguishment Policy from extinguishment of Aboriginal Title and Rights to recognition to be consistent with section 35 of Canada’s constitution.

The First Nations who were compromised by negotiating and borrowing money from Can-ada—mostly from BC—under the federal Comprehensive Claims Extinguishment Policy wanted to just focus on just setting up a negotiation process with the government of Cana-da to try and get the federal government to expand the mandates of the federal negotiators to include several concerns that were identified by what is called the “common table” where the negotiating First Nations in BC came together with a short list of changes to the mandates of federal negotiators.

Because the AFN-CCPRWG had been taken over by the compromised negotiating First Nations—mostly from BC—this became “Plan A” for the AFN-CCPRWG. The strategy to pressure the federal government to change the policy became “Plan B” for the AFN-CCPRWG.

The AFN Six Point DISC Strategy In 1997, the Supreme Court of Canada Delgamuukw decision set out important compo-nents of Aboriginal Title, in response, a Six Point strategy had been identified in 2000 by a previous AFN committee established called the Delgamuukw Implementation Strategic Committee (DISC), which was Co-Chaired by then Chief Arthur Manuel, I participated on the DISC as well. The DISC Six Point Strategy was as follows:

OBJECTIVES OF THE SIX-POINT STRATEGY.

1. To get the federal government to recognize and implement Aboriginal title, in accordance with the law. 2. The creation of a new policy framework which recognizes and affirms Aborigi-nal title. 3. To support First Nation people in the exercise of the rights flowing from their Aboriginal title, and to obtain benefits from their land and resources.


“during the 2nd ballot of the 2009, AFN Election in Calgary that National Chief candidate Shawn Atleo, committed to non-negotiating Chiefs from BC and Quebec that as AFN National Chief he would press the federal government to reform the Comprehensive Claims Policy”


Neskonlith Indian Band Logo

Wolf Lake First Nation Logo

ELEMENTS OF THE SIX-POINT STRATEGY. Public Education Political/Negotiation/Pre-Litigation Strategy Litigation Policy Development Direct Action/Assertion of Rights International Campaign Unfortunately, in 2000, when Matthew Coon Come, from the James Bay Agreement Crees of Quebec, became AFN National Chief, he ended the AFN DISC strategy pro-cess because the DISC strategy was not supported by the negotiating First Nations like the members of the BC First Nations Summit.

Once again, in 2012, the AFN-CCPRWG agreed to re-consider the DISC Six Point Strate-gy as part of “Plan B”, but the negotiating First Nations put “Plan B” on the back burner opting for “Plan A” negotiating policy changes with Canada without applying any political, legal or economic pressure on the Harper government.

The Idle No More movement became the closest to a “Plan B” strategy and it wasn’t be-cause of AFN.

AFN Requests Prime Minister Harper to Renew Comprehensive Claims SOC

AFN National Chief Shawn Atleo took the AFN-CCPRWG “Plan A” strategy into the Jan-uary 11th PM-AFN meeting and was rewarded by Prime Minister Harper with the Cana-da-AFN Comprehensive Claims SOC Process.

The AFN-CCPRWG “Plan A” strategy, now the Canada-AFN Comprehensive Claims SOC process has the backing of the BC First Nations Summit Leaders like Grand Chief Ed John and Chief Doug White among other BC First Nation Summit Chiefs who are negotiating under the BC Treaty Extinguishment Process.

Collectively, the members of the BC First Nations Summit have borrowed $450 million from the government of Canada using their Aboriginal Title and Rights as collateral.

Both National Chief Shawn Atleo and AFN-BC Regional Chief Jody Wilson-Raybould come from compromised First Nation communities negotiating under the BC Treaty Extin-guishment process.

A number of other AFN Executive Committee members also come from compromised First Nation communities/regions who are “actively extinguishing” under Canada’s Ter-mination Policies (Land Claims & Self-Government).

This would explain why on behalf of AFN, BC Regional Chief Jody Wilson-Raybould is pressing ahead to ask Prime Minister Harper to renew the mandate of the Comprehen-sive Claims SOC, according to a CBC report of December 20, 2013.

As this article is written AFN-BC Regional Chief Jody Wilson-Raybould has not informed the members of the AFN CCPRWG of her communications with Prime Minister Harper.

AFN’s participation in Harper’s SOC processes impact on the Inherent, Aboriginal Title & Rights and Treaty Rights because the SOC processes involve federal First Nations policy on section 35 rights.

Failure of the Constitutional Conferences of the 1980’s It has been over 30 years now since Canada brought its constitution back from England on



“Collectively, the members of the BC First Nations Summit have borrowed $450 million from the government of Canada using their Aboriginal Title and Rights as collateral”

Sophie Pierre, Chair, B.C. Treaty Commission

BC First Nations Summit Logo

April 17, 1982, when Queen Elizabeth II signed it into law. Section 35 of Canada’s “new” constitution “recognized and affirmed the existing Aboriginal and Treaty rights of Abo-riginal Peoples”.

Yet, the section 35 promise of “recognition and affirmation” of Aboriginal and Treaty rights has not occurred on the ground.

It was Section 37 of the Constitution Act 1982, that provided for a First Ministers’ Con-ference (FMC) on Aboriginal Matters to be held within one year of new constitution be-coming law. The FMC on Aboriginal Matters was held in March 1983.

It should be noted that Aboriginal and Treaty rights were at first included in the draft con-stitution and then removed during federal-provincial negotiations.

In the end section 35 was only included in the “new” constitution due to pressure from Ab-original groups like the train dubbed the “Constitution Express” that went across Canada from Vancouver to Ottawa, picking up First Nations along the way.

After demonstrating and lobbying in Ottawa many First Nation Peoples from the train trav-eled from Ottawa onto England and Europe to lobby and protest exclusion from Canada’s “new” constitution.

In addition to the Aboriginal outrage at being excluded in the draft constitution there was also strong public support from many Canadians for the inclusion of Aboriginal and Treaty Rights references in the draft constitution (Canada Bill).

S. 35 was re-introduced into the draft constitution (Canada Bill) with the word “existing” added to the clause at the insistence of the Premiers from Alberta and Saskatchewan. Their intent was to try and limit or restrict future interpretations of the clause.

S.37 provided that the main purpose of the 1983 FMC was the “identification and defini-tion” of what rights would be included in the constitution.

FMC 1983 was held in the spring with representatives of the four National Aboriginal Or-ganizations (Assembly of First Nations, Inuit Taparisit Canada, Native Council of Canada, and the Metis National Council).

At the FMC 1983 the Prime Minister, Premiers, Territorial Leaders and representatives of the four National Aboriginal Organizations agreed on a constitutional amendment that pro-vided for further FMC’s on Aboriginal Matters, which were held in 1984, 1985 and 1987.

The 1983 Constitutional Amendment changed the s. 37 process from explicitly identify-ing and defining what rights would be included in the constitution to merely having “agenda matters that directly affect the aboriginal peoples of Canada” and despite hav-ing a number of agenda items, the amended s. 37 process focused on whether the right to self-government was an inherent right vs. a contingent right, subject to Crown agreement.

The FMC’s on Aboriginal Matters ended in 1987 without any agreement between the Na-tional Aboriginal Organizations and Canada’s First Minister’s.

By the time of the 1987 FMC on Aboriginal Matters, Prime Minister Brian Mulroney was holding secret talks with Quebec Premier Robert Bourassa on what would become the Meech Lake Accord to recognize Quebec’s “distinct society” status within Canada’s constitution. The constitutional amending formula used in the Meech Lake Accord re-quired all 10 provinces to pass legislation adopting the proposed constitutional amend-ment by June 23, 1990.

It was Elijah Harper, a Manitoba NDP MLA who was Oji-Cree and former Chief of Red Sucker Lake, who ran out the clock on the Meech Lake Accord in June 1990, by withhold-ing consent according to the rules of the Manitoba legislature.

Reportedly, Premier Robert Bourassa and his Quebec Cabinet Ministers were ex-tremely angry at the demise of the Meech Lake Accord. Weeks later a Quebec SQ SWAT team was dispatched to the Mohawk community of Kanehsata:ke to enforce a court in-


“, the section 35 promise of “recognition and affirmation” of Aboriginal and Treaty rights has not occurred on the ground”


Queen Elizabeth II singing the Constitution Act 1982 into law, April 17, 1982.

junction against the community. The police raid failed and led to a 78 day stand-off be-tween the Mohawk communities, police and later the Canadian Army.

The 1990 Mohawk stand-off caused Prime Minister Mulroney to re-think his Aboriginal policy and led to some federal Aboriginal policy reforms, including a renewal of Canada’s constitutional reform process.

In 1992, the First Ministers and leaders of the four National Aboriginal Organizations agreed to a package of proposed constitutional amendments called the Charlottetown Accord, which included: Recognition of Aboriginal Self-Government; Recognition of Quebec Distinct Society Status and Senate Reform.

The 1992 Charlottetown Accord was put to a federal referendum vote and the Canadian public rejected it with a majority voting No!

The 1992 end of the Canadian constitutional reform process ended the unfinished business of political discussion on the meaning of section 35 rights and the settler courts took up defining and containing First Nations Aboriginal and Treaty rights.

Supreme Court of Canada’s Legal Framework to Contain Section 35 Rights

Since 1990, the Supreme Court of Canada (SCC) in the Sparrow decision started to set out a justification framework for assessing and containing the assertion of s. 35 rights.

Some other significant SCC decisions are as follows.

In 1996, the SCC Van der Peet decision narrowed the definition of Aboriginal rights "... to constitute an ancestral right, an activity must be an element of a custom, practice or tradition forming an integral part of a distinct culture of the Aboriginal group which claims the right in question”.

In 1997, the SCC Delgamuukw decision sets out legal principles and test for Aboriginal Title. Canada ignored the ruling and maintains the federal Comprehensive Claims Policy.

In 2004, the SCC Haida/Taku decisions on the Crown’s duty to consult and duty to accom-modate on assertion of Aboriginal Rights.

In 2005, the SCC Mikisew decision adds Treaty Rights to Crown duty to consult/accommodate.

Reconciliation = Surrender to the Crown The SCC has in numerous cases referred to reconciliation as the basic purpose of section 35, including the following statements:

“S.35(1) provides the constitutional framework through which Aboriginal peoples who lived on the land in distinctive societies with their own practices, traditions and culture are acknowledged and reconciled with the sovereignty of the Crown.” (Van der Peet); and,

“Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed

Crown sovereignty, and to define Aboriginal rights guaranteed by s.35 of the Constitution Act, 1982. Section 35 represents a promise of rights recognition. ... This promise is realized and sovereignty claims reconciled through the process of honourable negotiation.” (Haida);

Since the 1982 adoption of s. 35 in Canada’s constitution the Crown has tried to take ad-vantage of the legal and political uncertainty of the scope and content of Aboriginal & Trea-ty rights by obtaining concessions through Termination agreements (Land Claims & Self-Government).



“The 1992 end of the

Canadian constitutional

reform process ended the unfinished

business of political

discussion on the meaning of

section 35 rights and the settler courts

took up defining and

containing First Nations

Aboriginal and Treaty rights”

The 9 Justices of the Su-preme Court of Canada.

Through arbitrary self-government and land claims policies the federal Crown has devel-oped self-serving negotiation positions, which are offered to First Nations as a “take it or leave it” proposition.

In negotiations the Crown governments routinely take advantage of the poverty and tied funding of First Nations knowing the cost of launching and sustaining litigation asserting, proving & defending s. 35 Rights is beyond the ability of most First Nations. Particularly now with the Harper government’s funding cuts/caps to bands, and Tribal Councils.

The SCC while noting the Royal Commission on Aboriginal Peoples (RCAP) report in some instances fails to address the RCAP recommendation regarding the assertion of Crown sovereignty:

[that the] Federal, provincial and territorial governments further the process of [a renewed Aboriginal-Canada relationship] by

a) acknowledging that concepts such as terra nullius and the doctrine of discov ery are factually, legally and morally wrong;

b) declaring that such concepts no longer form part of law making or policy devel-opment by Canadian governments;

c) declaring that such concepts will not be the basis of arguments presented to the courts;

d) committing themselves to renewal of the federation through consensual means to overcome the historical legacy of these concepts, which are impediments to Abo-riginal people assuming their rightful place in the Canadian federation; and

e) including a declaration to these ends in the new Royal Proclamation and its com-panion legislation.

Courts are Part of the Canadian Settler-State While the SCC decisions have been more generous in their interpretation of the scope and content s. 35 rights than Crown governments since 1982, the evidentiary requirements to meet the legal tests and the court costs are largely prohibitive for most First Nations.

Despite the s.35 “recognition and affirmation” of Aboriginal and Treaty rights in the con-stitution, the legislative and policy trend of the federal government since 1982 has been to deny the inherent right to self-government in favour of delegated authority to bands. In-deed there are many federal First Nation Termination Tables negotiating delegated “self-government”.

First Nations have had a variety of responses to Crown avoidance and denial of s. 35 Abo-riginal/Treaty Rights.

There are the high profile conflicts between First Nation peoples and the Crown govern-ments. Some of these are Elsipogtog, Barriere Lake, Lubicon Lake, Oka, Ipperwash, Gus-tafson Lake, Burnt Church, Grassy Narrows, Caledonia, and KI (Big Trout Lake) and the Ardoch Non-Status Algonquins.

The last two examples saw the leadership going to jail for ignoring injunctions against them.

Rules of Engagement When First Nations assert they have rights beyond what Crown governments are prepared to negotiate within policy frameworks, the police or military force has been used to impose the Crown government’s interpretation of the limit of s. 35 rights.

So as we have seen the assertion of First Nation rights can lead to criminal charges and convictions and not just civil proceedings.


“In negotiations the Crown governments routinely take advantage of the poverty and tied funding of First Nations knowing the cost of launching and sustaining litigation asserting, proving & defending s. 35 Rights is beyond the ability of most First Nations”


Many First Nations, particularly grassroots people, do not understand the complexities of Canada’s Aboriginal constitutional law.

The SCC decisions in Haida/Taku/Mikisew have now set out the legal principles and guidelines for the duty to consult & if necessary accommodate First Nations when an activi-ty or project may potentially affect First Nation rights/interests in traditional territory.

The SCC has placed the “burden of proof” on First Nations who assert s. 35 rights.

Most First Nations have not had the financial support to professionally document and sub-stantiate their historic and contemporary connection to their lands to meet the legal stand-ards of proof.

Most provincial governments like BC, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick and Nova Scotia have issued post-Haida interim consultation/accommodation guidelines.

The federal government has also issued post-Haida internal consultation guidelines to their officials, attempting to limit their responsibility to federal projects or activities.

First Nations are still not properly funded to prepare for consultations or accommodation negotiations with Crown governments or Third Parties.

Local Capacity Building First Nation (bands) need funding to organize internally to manage consultation requests from Crown governments and/or Third Parties.

First Nations need in-house or outside consultants to provide independent technical/scientific advice on natural resource management/regional planning issues.

First Nations need to develop modern methods of keeping track of consultations ie. Devel-oping a database to track the status of consultations.

Conclusion First Nations should be very concerned about the Canada-AFN Comprehensive Claims SOC undermining section 35 Aboriginal and Treaty rights, whether or not your First Nation comes from an historic Treaty Territory or and Aboriginal Title Territory.

Even though the Canada-AFN Treaty SOC mandate isn’t being renewed by AFN it remains to be seen what the Harper government will do—if anything—regarding the historic Trea-ties.

The BC First Nation Summit Chiefs, the AFN Executive Committee and National Chief Atleo are collaborating with the Harper government on a document called the “Principles of Recognition and Reconciling section 35 rights”.

These Canada-AFN “principles” are tied to Canada’s “Consolidated Guide to the Govern-ment of Canada's Approach to Modern Treaty Negotiations”.

These “Modern Treaties” are arguably undermining the “existing Aboriginal and Treaty rights” recognized in section 35 with the Crown by watering down the interpretation of section 35 rights recognized in 1982 with the 1983 constitutional amendment section 35 (3), which states:

“For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.”

The 1983 constitutional amendment above was lobbied for by the Cree-Naskapi and Inuit signatories to the 1975 James Bay & Northeastern Quebec Agreements (JBNQA).

In 1983, along with those who had already extinguished their Aboriginal Title and compro-mised their Aboriginal rights by signing onto a pre-1982 “Modern Treaty”, were six “actively extinguishing groups” who also lobbied for the 1983 section 35(3) amendment.



“Most First Nations have

not had the financial

support to professionally document and

substantiate their historic

and contemporary connection to their lands to

meet the legal standards of

proof”

Federal Court Logo

Ed John, Member Task Group First Nations

Summit

These were the:

Council for Yukon Indians.

Dene Nation (&Metis).

Nisga’a.

Conseil Attikamek-Montagnais (CAM).

Labrador Inuit Association.

Tunngavik Federation of Nunavut.

As Canada’s November 2013, “Consolidated Guide” to Modern Treaty negotiations de-scribes:

“Since 1973, Canada and Aboriginal people, with the participation of appropri ate provincial and territorial governments, have concluded over 25 comprehen sive land claim agreements. These modern treaties include over 90 First Nation and Inuit communities with over 70,000 members. Geographically, they cover over 40% of Canada's land mass, including: northern Quebec, Nunavut, most of Yukon and the Northwest Territories, the northern portion of Labrador, and por tions of British Columbia.”

“Presently, comprehensive land claims remain outstanding in approximately 20% of Canada, including most of British Columbia, portions of Yukon and the Northwest Territories, the Ottawa Valley in Ontario, significant portions of Que bec, the Maritimes and southern Labrador. The majority of unresolved claims are south of the 60th parallel in provinces.”

If you are from an historic Treaty First Nation or an Aboriginal Title First Nation, how do you think Canada will treat your First Nation once they have the majority of bands in Cana-da signed off setting precedents on final Termination Agreements?

Canada is using AFN to give the Canadian public the impression that First Nations are col-laborating with the Harper government on their legislative and policy initiatives.

The conditions for “reconciliation” between First Nations and the Crown won’t be in place until the federal self-government and land claims policies are revised to be consistent with an interpretation of section 35 that comes from negotiations at a Constitutional Conference with duly mandated First Nations NOT a National Aboriginal Organization that has become nothing more than a branch office of the federal Department of Aboriginal Affairs.

Canada’s domestic policy and law should be measured against the international standards set out in the U.N. Declaration on the Rights of Indigenous Peoples, as well as, other relevant UN Human Rights Conventions and the gaps identified and reported to the rele-vant U.N. bodies and agencies.

The Chiefs across Canada need to lead, follow or get out of the way as grassroots peoples get more involved in the decision making processes about political, legal and economic strategies and actions towards the federal and provincial governments that are implement-ing Canada’s First Nations Termination Plan.

The current issues about education and health needs and programs are symptoms of a larger problem, which is Canada violating the constitutional and international rights of Indigenous Peoples to self-determination, land and Treaty rights!

‘AFN Collaboration’ conclusion from page 12

“Chiefs across Canada need to lead, follow or get out of the way as grassroots peoples get more involved in the decision making processes about political, legal and economic strategies and actions towards the federal and provincial governments that are implementing Canada’s First Nations Termination Plan”


By Susana Mas, CBC News Posted: Dec 20, 2013

One of two committees created after a high-stakes meet-ing between Prime Minister Stephen Harper and a dele-gation of First Nations leaders last January has completed its work and is recommending Canada update its policy on how it negotiates and resolves disputes over land claims.

"We're recommending to the prime minister that he adopt the principles respecting recognition and recon-ciliation of Section 35 rights," British Columbia Regional Chief Jody Wilson-Raybould told a group of national chiefs gathered for a bi-annual meeting in Gatineau, Que., last week.

According to the Supreme Court, the principal purpose of Section 35 of the Constitution Act is to fulfil the prom-ise of reconciliation between indigenous peoples and

the rest of Canada.

First Nations argue the federal government has not lived up to that promise.

Disputes over land claims arise when aboriginal land rights have not been dealt with by treaties or through other legal means.

Wilson-Raybould and Quebec and Labrador Regional Chief Ghislain Picard met eight times since last February with senior officials from the Prime Minister's Office, the Privy Council Office and the Department of Aboriginal Affairs and Northern Development before conclud-ing their last meeting on Dec.6.

Their mandate was to review the federal government's policy on comprehensive land claims and recommend policy changes.

Onus on the prime minister

The senior oversight committee has drafted a list of 10 principles that Canada could adopt "to guide its future engagement with First Nations," Wilson-Raybould told the chiefs.

But Picard, who also gave a presentation to the national chiefs, was critical of the process and what was actually accomplished.

The Quebec and Labrador Regional Chief said what the committee accomplished in eight meetings, could have been done in three.

"The last few months were a good example of how government views high-level meetings, which in many respects are far from what we would have expected," Picard said.

Wilson-Raybould was steadfast in her resolve to reform the government's comprehensive claims policy.

"Whether they listen to us or not, we are going to give them no excuse to say that we didn't try," she said.

"We look to the prime minister to take us up on the solutions that we have put forward to him in order to fundamentally transform the comprehensive claims process."

"We are looking for a solid, political commitment from the prime minister to continue with the work of reforming the comprehensive claims policy," Wilson-Raybould said.

It is unclear at this stage whether the committee's mandate, which expired this month, will be renewed or whether the work will continue in a different form.

The committee's work follows Harper's promise, in part, to hold high-level treaty talks on comprehensive land claims with oversight from the Prime Minister's Office and the Privy Council following the Jan. 11 meeting.

First Nations give Stephen Harper proposal to reform land claims—Senior oversight committee on comprehensive claims concluded its work on Dec. 6


“We look to the prime minister

to take us up on the solutions that we have

put forward to him in order to fundamentally transform the

comprehensive claims process”

B.C. Regional Chief Jody Wilson-Raybould says a committee created after a high-stakes meeting between Prime Minister Stephen Harper and a delegation of First Nations leaders last January has completed its work and is recommending Canada up-date its policy on comprehensive claims.

“Chief” Stephen Harper in a headdress given to him by the Blood Tribe in Al-

berta.

PM Harper with NC Atleo.

DRAFT—For Discussion Only , November 7, 2013

The Constitution Act 1982 recognizes and affirms the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada. This provides the constitutional framework for recon-ciling the pre-existence of Aboriginal societies with the sovereignty of the Crown which requires processes for achieving reconciliation. Accordingly, Canada acknowledges the importance of ensuring that its relationship with Aboriginal peoples is based on mutual recognition and respect having regard to the following principles of reconciliation that flow from section 35.

1. Canada recognizes that reconciliation is a fundamental objective of section 35 of the Constitution Act, 1982

Reconciliation is an ongoing process through which Aboriginal peoples and the Crown work cooperatively to establish and maintain a mutually respectful framework for living together in Canada with a view to fostering strong, healthy and sustainable Aboriginal communities.

Reconciliation involves reconciling the pre-existence of Aboriginal societies with the sov-ereignty of the Crown and balancing Aboriginal rights with broader societal interests. Rec-onciliation requires balance, compromise and good faith by all parties.

Reconciliation frames the Crown's actions in relation to section 35 rights and informs the Crown's broader relationship with Aboriginal peoples.

Canada's approach to reconciliation is informed by legal principles articulated by the courts and by negotiation and dialogue with Aboriginal peoples and provincial and territo-rial governments.

2. Canada recognizes that Aboriginal peoples have existing section 35 rights and it is on this basis that reconciliation processes occur. Section 35 rights include both Abo-riginal rights, including Aboriginal title, and treaty rights.

The Courts have stated that there is a spectrum otAboriginal rights, and specific legal tests for proof of Aboriginal rights, including Aboriginal title.

Senior Oversight Committee for Comprehensive Claims: Context for the develop-ment of the principles respecting the recognition and reconciliation of section 35 rights

The historic Crown-First Nations Gathering (January 2012), the theme of which was "strengthening our relationship -unlocking our potential", included a commitment by Can-ada and First Nations to advance claims resolution and treaty implementation. The Govern-ment of Canada and First Nations committed to respect and honour the treaty relationship, and advance approaches to find common ground on treaty implementation. The parties also committed to ensuring federal negotiation policies reflect the principles of recogni-tion and affirmation mandated by section 35 of the Constitution Act 1982, and to ad-vance certainty, expeditious resolution and self-sufficiency.

On January 11, 2013, the Prime Minister met with Assembly of First Nations Chiefs and in advancement of the commitments made at the 2012 Crown-First Nations Gathering agreed to a high-level dialogue on the treaty relationship and comprehensive claims. Accordingly, a Senior Oversight Committee for Comprehensive Claims was created and high level dia-logue continues on the treaty relationship to follow through on this commitment.

The Senior Oversight Committee for Comprehensive Claims is mandated to propose rec-ommendations to address specific areas/elements of Canada's comprehensive claims poli-cy that may be impeding progress in negotiations and in achieving reconciliation. It is also mandated to examine and to propose options for a broad range of reconciliation approach-es other than comprehensive treaty agreements.

[Canada-AFN Comprehensive Claims SOC] Principles Respecting the Recognition and Reconciliation of Section 35

“Reconciliation involves reconciling the pre-existence of Aboriginal societies with the sovereignty of the Crown”


Gina Whiteduck-Wilson is ADM of Treaties & Aborigi-nal Governance (TAG) at AANDC & is a Kitigan Zibi

Algonquin.

Michael Wernick DM, AANDC

In furtherance of its mandate, the Senior Oversight Committee for Comprehensive Claims is working towards making recommendations for the development of an overarching rec-onciliation policy framework for Crown-Aboriginal relations consistent with the principles for recognition and reconciliation of section 35 rights.

The "Principles respecting the recognition and reconciliation of section 35 rights" are informed by the high-level dialogue pursuant to the Senior Oversight Committee for Com-prehensive Claims and sets out Canada's commitment to principles for recognition and reconciliation. The principles apply to section 35 aboriginal rights and to modern treaty negotiations and other processes for achieving reconciliation with respect to aboriginal rights and are intended to guide the development of an overarching reconciliation frame-work.

The Government of Canada recognizes the inherent right of self-government is an existing Aboriginal right within the meaning of section 35.

3. Canada recognizes that the reconciliation of section 35 rights is not limib~d to comprehensive modern treaties, but may include other forms of agreements and constructive arrangements, without the need for extinguishment

In areas of federal jurisdiction, Canada recognizes that the use of reconciliation processes could lead to modern treaty arrangements or other constructive arrangements including, but not limited to, non-treaty arrangements, contracts, legislation, memoranda of under-standing and consultation and accommodation processes.

Through negotiations, with give-and-take on all sides, modern treaties and other construc-tive arrangements can provide predictability and clarity for Aboriginal peoples and gov-ernments, regarding their respective rights to ownership, use and management of lands and resources, as well as predictability and clarity for the exercise of Aboriginal self-government within the Canadian federation.

4. Canada recognizes that the honour of the Crown is a guiding principle for the con-duct of the federal Crown in all federal processes for achieving reconciliation with respect to section 35 rights

The Government of Canada recognizes the importance of upholding the honour of the Crown, which requires Canada and its departments, agencies and officials to act with hon-our, integrity and fairness in all its dealings with Aboriginal peoples. The honour of the Crown gives rise to different duties in different circumstances.

5. Canada recognizes that the honour of the Crown gives rise to the duty to consult and, where appropriate, accommodate when the Crown contemplates conduct that may adversely affect potential or established Aboriginal or treaty rights

Canada has established guidelines for federal officials to fulfill the duty to consult. The Crown's efforts to consult and where appropriate accommodate are to be consistent with the overriding objective of reconciliation.

6. Canada recognizes the importance of implementing modern treaties in a manner which upholds the honour of the Crown

Reconciliation requires that modern treaty provisions are to be interpreted in a reasonable and purposive manner and in accordance with the principles enunciated by the courts in order to find the common intention of the parties, and with due regard for terms negotiated by the parties.

Federal departments and agencies need to coordinate their activities to implement treaties in a timely and diligent manner.

7. Canada recognizes that reconciliation requires justification for any . infringement of section 35 rights

‘SOC Principles’ conclusion from page 15


“the Senior Oversight

Committee for Comprehensive

Claims is working towards making

recommendations for the

development of an overarching

reconciliation policy framework

for Crown-Aboriginal relations”

Minister of Aboriginal Af-fairs Bernard Valcourt & PM

Stephen Harper

AANDC Headquarters, Gat-ineau, Quebec

Canada acknowledges that any infringement of Aboriginal rights requires a justification in accordance with standards established by the Canadian courts and must be attained in a manner consistent with the honour of the Crown and the objective of reconciliation.

8. Canada recognizes that reconciliation can lead to economic prosperity

Reconciliation promotes a secure climate for economic and resource development that can benefit all Canadians and balances Aboriginal rights with broader societal interests.

Reconciliation arrangements can enable Aboriginal peoples to have fair and ongoing access to lands and resources to support their traditional economies and to share in the wealth generated from those lands and resources as part of the broader Canadian economy.

9. Canada recognizes the importance of working jointly with Aboriginal groups to identify timely and effective processes for the negotiation of modern treaties and other constructive arrangements that address section 35 rights.

Modern treaties have been and remain the primary means through which Aboriginal peoples and the Crown establish mutually agreed-upon frameworks for reconciliation. However, parties to modern treaty negotiations may have . dif-fering views on the nature, scope and location of Aboriginal rights in any particular context.

Modern treaties can provide an enduring framework for ongoing relationships that are constitutionally protected.

During the course of modern treaty negotiations, other constructive arrangements may be considered, including but not limited to, interim measures, treaty related measures and incremental treaty arrangements, which promote coop-erative relations, Aboriginal capacity for modern treaty implementation and predictability and clarity in relation to land and resource management.

It is recognized that there are differences as to how modern treaty negotiations may be conducted across Canada, accounting for regional diversity, Aboriginal perspectives and the interests of provincial and territorial governments.

10. Canada recognizes that reconciliation is an ongoing process that occurs in the context of evolving Crown-Aboriginal relationships

Canada recognizes that reconciliation processes including processes for negotiation and implementation of treaties, non-treaty agreements and other constructive arrangements that will need to adapt over time in the context of evolv-ing Crown-Aboriginal relationships.

Modern treaties should be capable of evolution and provide predictability for the future as to how provisions may be changed and in what circumstances.

Matters that must be adaptable to change may be set out in companion non-treaty agreements.

‘SOC Principles’ conclusion from page 16


L to R: NC Atleo, Roger Augustine, Morley Googoo & Jody Wilson-Raybould during Jan. 10, 2013., AFN general meeting.

Bill C-38 Budget Omnibus Bill #1

This 450 page bill changed more than 70 federal Acts without proper Parliamentary debate.

This bill dramatically changes Canada’s federal environmental legislation, remov-ing many protections for water, fish, and the environment.

The changes were made without consulting First Nations.

Bill C-45 Budget Omnibus Bill #2

This second bill also exceeds 450 pages, and changed 44 federal laws, again with-out proper Parliamentary debate.

This bill removes many fish habitat protections and fails to recognize Aboriginal commercial fisheries.

Changes to the Navigable Waters Protection Act reduce the number of lakes and rivers where navigation and federal environmental assessment is required from 32,000 to just 97 lakes, and from 2.25 million to just 62 rivers. This means a shocking 99% of Canada’s waterways lost their protection for navigation and federal environ-mental assessment purposes.

These changes were made without consulting First Nations.

Bill C-27 First Nations Financial Transparency Act

This bill imposes standards on First Nations governments that far exceed those for municipal, provincial and federal officials in other jurisdictions.

It requires First Nation-owned businesses (unlike non-Aboriginal businesses) to publicly report income and expenses, thus undermining competitiveness.

It adds additional bureaucracy to the existing requirement that each First Nation provide Ottawa over 150 financial reports each year, contrary to the recommenda-tions of Canada’s Auditor General and the Treasury Board.

These changes are based on a common, racist assumption that First Nations’ officials are all corrupt – an assumption that is factually and statistically incorrect.

The First Nations Private Property Ownership Act (Proposed)

The government intends to introduce this legislation, but it hasn’t yet.

The Act would permit private property ownership within reserve boundaries. Indi-vidual bands would be able to adopt the legislation on an optional basis.

A private property system is contrary to the goal of many First Nations to protect Aboriginal lands as a collective resource.

The Act would allow the small existing Aboriginally-owned land base to be sold to non-Aboriginal buyers, forever losing these lands as Aboriginal lands. This is par-ticularly a risk for impoverished communities who may be forced by economic des-peration to sell their own lands for short term gain.

First Nations need more options to use their lands for economic development pur-poses, but this simple ‘one size fits all’ fix is dangerous. The government should

A Summary of Current Federal Legislative Amendments Affecting First Nations


“These changes are

based on a common,

racist assumption

that First Nations’

officials are all corrupt – an assumption

that is factually and

statistically incorrect”

NC, PM, GG, CFNG 2012. (Photo by Fred Cattroll)

instead work with First Nations to address real self-sufficiency by ensuring Aborigi-nal control over resources extracted in their traditional lands, and addressing edu-cational, health and other social development.

Bill S-2 Family Homes on Reserve and Matrimonial Interests or Right Act

There are currently no laws that determine how property on reserve is divided up when married couples divorce. This bill addresses that “gap”, but does so without recognizing First Nations’ jurisdiction over reserve property.

There are many issues associated with matrimonial property on reserve, including violence against women, housing availability, self-government rights, capacity to develop and enforce laws, and access to justice. These issues have been disregard-ed in the interests of a “simple fix”.

The provisional laws in this legislation will infringe on First Nations’ inherent self-government rights. The legislation will also make it difficult for people to ensure the laws are enforced, as they would have to go to a provincial court, which can be diffi-cult due to distance and expense.

Bill S-6 First Nations Elections Act

This Bill provides an alternative elections regime to that under the Indian Act.

Although this will affect all First Nations, there was inadequate consultation about it.

It is positive that this bill allows First Nations to opt into an alternative regime for elections. The Minister can, however, simply impose an election process against the will of a First Nation community, and at the discretion of the Minister (if the Minister decides there has been a problem with an election). This can lead to political inter-ference with First Nations elections.

Bill S-8 Safe Drinking Water for First Nations Act

This Act will allow Canada to over-ride First Nation by-laws, BCRs and policies that protect safe drinking water.

The Minister will now have the power to require First Nations to charge fees to members for receiving clean water.

The Act allows the government to annul or destroy Aboriginal rights and treaty rights “to the extent necessary to ensure safe drinking water.” This is a limited pow-er but is concerning in principle, especially when the government was not able to provide any justification why it needed this power.

Bill C-428 Indian Act Amendment and Replacement Act

This is a private members bill that is a substantial piece of legislation which would impose sweeping changes to the Indian Act. Yet there has been no proper consulta-tion with First Nations about it.

First Nations support the need to abolish the Indian Act. Any discussion about legis-lation to replace the Indian Act, however, needs to fully involve First Nations. Yet there has been no substantial consultation on this bill.

Bill S-207 An Act to amend the Interpretation Act

This Bill says that no legislation will be interpreted as annulling or destroying Abo-riginal or treaty rights. However, if another Act showed a clear intention of destroy such rights, this Act would not prevent that from happening.

‘federal legislation’ continued from page 18

“This is a private members bill that is a substantial piece of legislation which would impose sweeping changes to the Indian Act. Yet there has been no proper consultation with First Nations about it”


Rob Clarke, Conserva-tive, MP is pushing Bill 428 to amend the Indi-an Act without consult-

ing First Nations

First Nations Strategic Policy Counsel

Innisfil, Ontario

Phone: (613) 296-0110

E-mail: [email protected]

The First Nations Strategic Policy Counsel is a collection of indi-viduals who are practitioners in either First Nations policy or law. We are not a formal organization, just a network of con-cerned individuals.

This publication is a volunteer non-profit effort and is part of a series. Please don’t take it for granted that everyone has the information in this newsletter, see that it is as widely distributed as you can, and encourage those that receive it to also distrib-ute it.

Feedback is welcome. Let us know what you think of the Bulle-tin—Russell Diabo, Publisher and Editor, First Nations Strategic Bulletin.

BULLETIN OF THE FIRST NATIONS STRATEGIC POLICY COUNSEL

Bill S-212 First Nations Self-Government Recognition Bill

This legislation has been introduced for the fourth time.

This Act would make it possible for First Nations to take on much of the authority currently given to prov-inces (such as fisheries, wildlife and habitat management, education, child protection and adoption, and health care).

If the government intends to support or proceed with this Act, however, there must be consultation with First Nations as the impact on First Nation communities will be profound.

Prepared by Lorraine Land, Liora Zimmerman and Andrea Bradley December 20, 2012 (updated January 16, 2013)

NOTE: The information contained in this summary is not legal advice. It should not be construed as le-gal advice and should not be relied upon as such. If you require legal advice, we recommend that you hire a lawyer to give you that advice.

[Reprinted with thanks from Olthuis, Kleer, Townshend – LLP]

‘federal legislation’ conclusion from page 19

Advancing the Right of First Nations to Information

For Back Issues Go To:

Canada Library & Archives -Electronic Collections

first nations strategic bulletin oct-dec 2013

Documents

indigenous rights

indigenous selfdetermination

indigenous network

indigenous movements

land rights

united nations

human rights abuses

nations strategic bulletin