Professional Documents
Culture Documents
OCTOBER-DECEMBER 2013
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Decolonization selfdetermination, freedom and economic independence are the key ingredients of our struggle as Indigenous Peoples
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
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 counterproductive to our human rights. We need to stand up and fight colonialism in all its manifestations
AFN Collaboration with Harpers SOCs Threatens First Nations Aboriginal & Treaty Rights: Supports Harpers Termination Plan!
By Russell Diabo This past year began with the combined actions of the Idle No More movement teach-ins and demonstrations and Attawapiskat Chief Theresa Spences hunger strike. Chief Spences main demand to end her hunger strike was that a national meeting occur between the Governor-General, the Prime Minister and Chiefs across Canada to discuss the Crowns breaches of the Treaties and the reAttawapiskat Chief Theresa Spence at a general sulting poor social conditions within First Nagathering with First Nations People in the Delta tions communities. Ottawa on January 11, 2013, after the PM-AFN
meeting occurred without her. (Photo by N. Diabo)
January 2013 was the scheduled time for Prime Minister Stephen Harper to report on the socalled progress that had been made on the commitments he had made to the Assembly of First Nations at the January 2012 CrownFirst 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 governments 2012 CFNG progress report, but with the national medias coverage over the month of December of: 1) the Idle No More demonstrations and demands to stop Harpers 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 Canadian 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 Spences 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 GovernorGeneral and Prime Minister, which had been demanded by Chief Theresa Spence did not occur. Ignoring Chief Spences decision to boycott the scheduled PM-AFN meeting of January 11th because it was not being held by the Queens representative in Canada the Governor-
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
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
during the 2nd ballot of the 2009, AFN Election in Calgary that National Chief candidate Shawn Atleo, committed to nonnegotiating Chiefs from BC and Quebec that as AFN National Chief he would press the federal government to reform the Comprehensive Claims Policy
Sophie Pierre, Chair, B.C. Treaty Commission
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 process 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 Strategy 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 wasnt because of AFN.
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
, the section 35 promise of recognition and affirmation of Aboriginal and Treaty rights has not occurred on the ground
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
e)
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
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 governments 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.
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. Most provincial governments like BC, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick and Nova Scotia have issued post-Haida interim consultation/ accommodation guidelines.
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
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.
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 isnt being renewed by AFN it remains to be seen what the Harper government will doif anythingregarding the historic Treaties. 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 Canadas Consolidated Guide to the Government 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 compromised 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.
Council for Yukon Indians. Dene Nation (&Metis). Nisgaa. Conseil Attikamek-Montagnais (CAM). Labrador Inuit Association. Tunngavik Federation of Nunavut.
As Canadas November 2013, Consolidated Guide to Modern Treaty negotiations describes: 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 Canada signed off setting precedents on final Termination Agreements? Canada is using AFN to give the Canadian public the impression that First Nations are collaborating with the Harper government on their legislative and policy initiatives. The conditions for reconciliation between First Nations and the Crown wont 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. Canadas 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 relevant 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 implementing Canadas 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!
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 Canadas First Nations Termination Plan
Chief Stephen Harper in a headdress given to him by the Blood Tribe in Alberta.
"We're recommending to the prime minister that he adopt the principles respecting recognition and reconciliation 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 promise of reconciliation between indigenous peoples and
the rest of Canada. First Nations argue the federal government has not lived up to that promise.
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
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 concluding 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.
[Canada-AFN Comprehensive Claims SOC] Principles Respecting the Recognition and Reconciliation of Section 35
DRAFTFor 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 reconciling 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 sovereignty of the Crown and balancing Aboriginal rights with broader societal interests. Reconciliation 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 territorial 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 Aboriginal 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 development 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 Canada and First Nations to advance claims resolution and treaty implementation. The Government 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 recognition and affirmation mandated by section 35 of the Constitution Act 1982, and to advance 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 dialogue continues on the treaty relationship to follow through on this commitment. The Senior Oversight Committee for Comprehensive Claims is mandated to propose recommendations to address specific areas/elements of Canada's comprehensive claims policy 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 approaches other than comprehensive treaty agreements.
Gina Whiteduck-Wilson is ADM of Treaties & Aboriginal Governance (TAG) at AANDC & is a Kitigan Zibi Algonquin.
Reconciliation involves reconciling the pre-existence of Aboriginal societies with the sovereignty of the Crown
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 Comprehensive 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 framework. 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 understanding and consultation and accommodation processes. Through negotiations, with give-and-take on all sides, modern treaties and other constructive arrangements can provide predictability and clarity for Aboriginal peoples and governments, regarding their respective rights to ownership, use and management of lands and resources, as well as predictability and clarity for the exercise of Aboriginal selfgovernment within the Canadian federation. 4. Canada recognizes that the honour of the Crown is a guiding principle for the conduct 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 honour, 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
the Senior Oversight Committee for Comprehensive Claims is working towards making recommendations for the development of an overarching reconciliation policy framework for CrownAboriginal relations
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
L to R: NC Atleo, Roger Augustine, Morley Googoo & Jody WilsonRaybould during Jan. 10, 2013., AFN general meeting.
This 450 page bill changed more than 70 federal Acts without proper Parliamentary debate. This bill dramatically changes Canadas federal environmental legislation, removing many protections for water, fish, and the environment. The changes were made without consulting First Nations.
This second bill also exceeds 450 pages, and changed 44 federal laws, again without 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 Canadas waterways lost their protection for navigation and federal environmental assessment purposes. These changes were made without consulting 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
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 recommendations of Canadas 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 government intends to introduce this legislation, but it hasnt yet. The Act would permit private property ownership within reserve boundaries. Individual 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 particularly a risk for impoverished communities who may be forced by economic desperation to sell their own lands for short term gain. First Nations need more options to use their lands for economic development purposes, but this simple one size fits all fix is dangerous. The government should
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 disregarded in the interests of a simple fix. The provisional laws in this legislation will infringe on First Nations inherent selfgovernment 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 difficult due to distance and expense.
Rob Clarke, Conservative, MP is pushing Bill 428 to amend the Indian Act without consulting First Nations
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 interference with First Nations elections.
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 power but is concerning in principle, especially when the government was not able to provide any justification why it needed this power.
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
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. First Nations support the need to abolish the Indian Act. Any discussion about legislation to replace the Indian Act, however, needs to fully involve First Nations. Yet there has been no substantial consultation on this bill.
This Bill says that no legislation will be interpreted as annulling or destroying Aboriginal or treaty rights. However, if another Act showed a clear intention of destroy such rights, this Act would not prevent that from happening.
The First Nations Strategic Policy Counsel is a collection of individuals who are practitioners in either First Nations policy or law. We are not a formal organization, just a network of concerned individuals. This publication is a volunteer non-profit effort and is part of a series. Please dont 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 distribute it. Feedback is welcome. Let us know what you think of the BulletinRussell Diabo, Publisher and Editor, First Nations Strategic Bulletin.
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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 provinces (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 legal 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]