If other items in the constitution require all of the
provinces to agree on changes, why are the portions pertaining to aboriginal
rights allowed to be changed through convenient legislation?
CONSTITUTION ACT, 1982
1982, c. 11 (U.K.), Schedule B
PART II
RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA
Marginal note: Recognition of existing aboriginal and
treaty rights
35. (1) The existing aboriginal and treaty
rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
·
Definition of “aboriginal peoples of
Canada”
(2) In this Act, “aboriginal peoples of Canada” includes
the Indian, Inuit and Métis peoples of Canada.
·
Marginal note: Land claims agreements
(3) For greater certainty, in subsection (1) “treaty
rights” includes rights that now exist by way of land claims
agreements or may be so acquired.
·
Marginal note: Aboriginal and treaty rights are guaranteed
equally to both sexes
(4) Notwithstanding any other provision of this Act,
the aboriginal and treaty rights referred to in subsection (1) are
guaranteed equally to male and female persons.
(96)
Harper
Launches Major First Nations Termination Plan: As Negotiating Tables Legitimize
Canada’s Colonialism
Harper Launches Major First Nations Termination Plan: As
Negotiating Tables Legitimize Canada’s Colonialism
The following editorial was originally featured in the First
Nations Strategic Bulletin (FNSB), June-October 2012. You can
view/download this latest edition of the FNSB by clicking the following link: FNSB
June-October 2012
On September 4th the Harper government clearly signaled its
intention to:
1) Focus all its efforts to assimilate First Nations into
the existing federal and provincial orders of government of Canada;
2) Terminate the constitutionally protected and internationally
recognized Inherent, Aboriginal and Treaty rights of First Nations.
Termination in this context means the ending of
First Nations pre-existing sovereign status through federal coercion of First
Nations into Land Claims and Self-Government Final Agreements that convert
First Nations into municipalities, their reserves into fee simple lands and
extinguishment of their Inherent, Aboriginal and Treaty Rights.
To do this the Harper government announced three new policy
measures:
·
A “results based” approach to
negotiating Modern Treaties and Self-Government Agreements. This is an
assessment process of 93 negotiation tables across Canada to determine who will
and who won’t agree to terminate Inherent, Aboriginal and Treaty rights under
the terms of Canada’s Comprehensive Claims and Self-Government policies. For
those tables who won’t agree, negotiations will end as the federal government
withdraws from the table and takes funding with them.
·
First Nation regional and national political
organizations will have their core funding cut and capped. For regional First
Nation political organizations the core funding will be capped at $500,000
annually. For some regional organizations this will result in a funding cut of
$1 million or more annually. This will restrict the ability of Chiefs and
Executives of Provincial Territorial organization’s to organize and/or
advocate for First Nations rights and interests.
·
First Nation Band and Tribal Council funding for
advisory services will be eliminated over the next two years further crippling
the ability of Chiefs and Councils and Tribal Council executives to analyze and
assess the impacts of federal and provincial policies and legislation on
Inherent, Aboriginal and Treaty rights.
These three new policy measures are on top of the following
unilateral federal legislation the Harper government is imposing over First
Nations:
·
Bill C-27: First Nations Financial
Transparency Act
·
Bill C-45: Jobs and Growth Act, 2012 [Omnibus
Bill includes Indian Act amendments regarding voting on-reserve lands
surrenders/designations]
·
Bill S-2: Family Homes on Reserves and
Matrimonial Interests or Rights Act
·
Bill S-6: First Nations
Elections Act
·
Bill S-8: Safe Drinking Water for First
Nations
·
Bill C-428: Indian Act Amendment and
Replacement Act [Private Conservative MP’s Bill, but supported by Harper
government]
Then there are the Senate Public Bills:
·
Bill S-207: An Act to amend the Interpretation
Act (non derogation of aboriginal and treaty rights)
·
Bill S-212: First Nations
Self-Government Recognition Bill
The Harper government’s Bills listed above are designed to
undermine the collective rights of First Nations by focusing on individual rights.
This is the “modern legislative framework” the Conservatives
promised in 2006. The 2006 Conservative Platform promised to:
Replace the Indian Act (and related legislation) with
a modern legislative framework which provides for the devolution of full legal
and democratic responsibility to aboriginal Canadians for their own affairs
within the Constitution, including the Charter of Rights and Freedoms.
Of course “modern” in Conservative terms means
assimilation of First Nations by termination of their collective rights and
off-loading federal responsibilities onto the First Nations themselves and the
provinces.
One Bill that hasn’t been introduced into Parliament yet,
but is still expected, is the First Nations’ Private Ownership Act
(FNPOA). This private property concept for Indian Reserves—which has been
peddled by the likes of Tom Flanagan and tax proponent and
former Kamloops Chief Manny Jules—is also a core plank of the
Harper government’s 2006 electoral platform.
The 2006 Conservative Aboriginal Platform promised that if
elected a Harper government would:
Support the development of individual property
ownership on reserves, to encourage lending for private housing and businesses.
The long-term goals set out in the Harper government’s
policy and legislative initiatives listed above are not new; they are at least
as old as the Indian Act and were articulated in the federal 1969
White Paper on Indian Policy, which set out a plan to terminate Indian
rights as the time.
Previous Termination Plans: 1969 White Paper & Buffalo
Jump of 1980’s
The objectives of the 1969 White Paper on Indian Policy were
to:
·
Assimilate First Nations.
·
Remove legislative recognition.
·
Neutralize constitutional status.
·
Impose taxation.
·
Encourage provincial encroachment.
·
Eliminate Reserve lands & extinguish
Aboriginal Title.
·
Economically underdevelop communities.
·
Dismantle Treaties.
As First Nations galvanized across Canada to fight the
Trudeau Liberal government’s proposed 1969 termination policy the federal
government was forced to consider a strategy on how to calm the Indian storm of
protest.
In a memo dated April 1, 1970, David Munro, an
Assistant Deputy Minister of Indian Affairs on Indian Consultation and
Negotiations, advised his political masters Jean Chrétien and Pierre
Trudeau, as follows:
. . . in our definition of objectives and goals, not
only as they appear in formal documents, but also as stated or even implied in
informal memoranda, draft planning papers, or causal conversation. We must stop
talking about having the objective or goal of phasing out in five years. . . We
can still believe with just as much strength and sincerity that the [White
Paper] policies we propose are the right ones. . .
The final [White Paper] proposal, which is for the
elimination of special status in legislation, must be relegated far into the
future. . . my conclusion is that we need not change the [White Paper] policy
content, but we should put varying degrees of emphasis on its several
components and we should try to discuss it in terms of its components rather
than as a whole. . . we should adopt somewhat different tactics in relation to
[the White Paper] policy, but that we should not depart from its essential
content. (Emphasis added)
In the early 1970’s, the Trudeau Liberal government did back
down publicly on implementing the 1969 White Paper on Indian Policy,
but as we can see from Mr. Munro’s advice the federal bureaucracy changed the
timeline from five years to a long-term implementation of the 1969 White Paper
objectives of assimilation/termination.
In the mid-1980’s the Mulroney Conservative government
resurrected the elements of the 1969 White Paper on Indian Policy, through a
Cabinet memo.
In 1985, a secret federal Cabinet submission was leaked to
the media by a DIAND employee. The Report was nicknamed the “Buffalo Jump of
the 1980’s” by another federal official. The nickname referred to the
effect of the recommendations in the secret Cabinet document, which if adopted,
would lead Status Indians to a cultural death -- hence the metaphor.
The Buffalo Jump Report proposed a management approach for
First Nations policy and
programs, which had the following intent:
·
Limiting & eventually terminating the
federal trust obligations;
·
Reducing federal expenditures for First Nations,
under funding programs, and prohibiting deficit financing;
·
Shifting responsibility and costs for First
Nations services to provinces and "advanced bands" through
co-management, tri-partite, and community self-government agreements;
·
"Downsizing" of the Department of
Indian Affairs and Northern Development (DIAND) through a devolution of program
administration to "advanced bands" and transfer of programs to other
federal departments;
·
Negotiating municipal community self-government
agreements with First Nations which would result in the First Nation government
giving up their Constitutional status as a sovereign government and becoming a
municipality subject to provincial or territorial laws;
·
Extinguishing aboriginal title and rights in
exchange for fee simple title under provincial or territorial law while giving
the province or territory underlying title to First Nations lands.
The Mulroney government’s “Buffalo Jump” plan was
temporarily derailed due the 1990 “Oka Crisis”. Mulroney responded to the “Oka
Crisis” with his “Four Pillars” of Native Policy:
·
Accelerating the settlement of land claims;
·
Improving the economic and social conditions on
Reserves;
·
Strengthening the relationships between
Aboriginal Peoples and governments;
·
Examining the concerns of Canada’s Aboriginal Peoples
in contemporary Canadian life.
In 1991, Prime Minister Brian Mulroney also
announced the establishment of a Royal Commission on Aboriginal Peoples,
which began its work later that year; the establishment of an Indian Claims
Commission to review Specific Claims; the establishment of a BC
Task Force on Claims, which would form the basis for the BC Treaty
Commission Process.
In 1992, Aboriginal organizations and the federal government
agreed, as part of the 1992 Charlottetown Accord, on amendments to
the Constitution Act, 1982 that would have included
recognition of the inherent right of self-government for Aboriginal people. For
the first time, Aboriginal organizations had been full participants in the
talks; however, the Accord was rejected in a national referendum.
With the failure of Canadian constitutional reform in 1992,
for the last twenty years, the federal government—whether Liberal or
Conservative—has continued to develop policies and legislation based upon the
White Paper/Buffalo Jump objectives and many First Nations have regrettably
agreed to compromise their constitutional/international rights by negotiating
under Canada’s termination policies.
Canada’s Termination Policies Legitimized by Negotiation
Tables
It has been thirty years since Aboriginal and Treaty rights
have been “recognized and affirmed” in section 35 of Canada’s
constitution. Why hasn’t the constitutional protection for First Nations’
Inherent, Aboriginal and Treaty rights been implemented on the ground?
One answer to this question is, following the failure of the First
Ministers’ Conferences on Aboriginal Matters in the 1980’s, many First
Nations agreed to compromise their section 35 Inherent, Aboriginal and Treaty
rights by entering into or negotiating Modern Treaties and/or Self-government
Agreements under Canada’s unilateral negotiation terms.
These Modern Treaties and Self-Government Agreements not
only contribute to emptying out section 35 of Canada’s constitution of any
significant legal, political or economic meaning. Final settlement agreements
are then used as precedents against other First Nations’ who are negotiating.
Moreover, Canada’s Land Claims and Self-Government policies
are far below the international standards set out in the Articles of the United
Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Canada
publicly endorsed the UNDRIP in November 2010, but obviously
Canada’s interpretation of the UNDRIP is different than that of
most First Nations, considering their unilateral legislation and policy
approach.
Canada voted against UNDRIP on Sept. 13,
2007, stating that the UNDRIP was inconsistent with Canada’s
domestic policies, especially the Articles dealing with Indigenous Peoples’
Self-Determination, Land Rights and Free, Prior Informed Consent.
Canada’s position on UNDRIP now is that
they can interpret it as they please, although the principles in UNDRIP form
part of international not domestic law.
The federal strategy is to maintain the Indian Act (with
amendments) as the main federal law to control and manage First Nations. The
only way out of the Indian Act for First Nations is to
negotiate an agreement under Canada’s one-sided Land Claims and/or
Self-Government policies. These Land Claims/Self-Government Agreements all
require the termination of Indigenous rights for some land, cash and delegated
jurisdiction under the existing federal and provincial orders of government.
Canada has deemed that it will not recognize the
pre-existing sovereignty of First Nations or allow for a distinct First Nations
order of government based upon section 35 of Canada’s constitution.
Through blackmail, bribery or force, Canada is using the
poverty of First Nations to obtain concessions from First Nations who want out
of the Indian Act by way of Land Claims/Self- Government
Agreements. All of these Agreements conform to Canada’s interpretation of
section 35 of Canada’s constitution, which is to legally, politically and
economically convert First Nations into what are essentially ethnic
municipalities.
The first groups in Canada who have agreed to compromise
their section 35 Inherent and Aboriginal rights through Modern Treaties have
created an organization called the Land Claims Agreement Coalition.
The Coalition Members are:
·
Council of Yukon First Nations (representing 9
land claim organizations in the Yukon)
·
Grand Council of the Crees (Eeyou Istchee)
·
Gwich’in Tribal Council
·
Inuvialuit Regional Corporation
·
Kwanlin Dun First Nation
·
Maa-nulth First Nations
·
Makivik Corporation
·
Naskapi Nation of Kawawachikamach
·
Nisga’a Nation
·
Nunavut Tunngavik Inc.
·
Nunatsiavut Government
·
Sahtu Secretariat Inc.
·
Tlicho Government
·
Tsawwassen First Nation
·
Vuntut Gwitchin First Nation
The Land Claims Agreement Coalition Members
came together because the federal government wasn’t properly implementing any
of their Modern Treaties. So the Coalition essentially became a lobby group to
collectively pressure the federal government to respect their Modern Treaties.
According to Members of the Coalition Modern Treaty implementation problems
persist today.
The fact that Canada has already broken the Modern Treaties shouldn't inspire confidence for those First Nations who are already lined up
at Canada’s Comprehensive Claims and Self-Government negotiation tables.
According to the federal Department of Aboriginal
Affairs there are 93 Modern Treaty and/or Self-Government negotiation
tables across Canada
Those First Nations who are negotiating at these 93 tables
are being used by the federal government (and the provinces/Territories) to
legitimize its Comprehensive Claims and Self-Government policies, which are
based upon extinguishment of Aboriginal Title and termination of Inherent,
Aboriginal and Treaty rights.
The First Nations who have been refusing to negotiate and
are resisting the federal Comprehensive Claims and Self-Government negotiating
policies are routinely ignored by the federal government and kept under control
and managed through the Indian Act (with amendments).
Attempts by non-negotiating First Nations to reform the
federal Comprehensive Claims and Self-Government policies aren't taken seriously by the federal government because there are so many First Nations
who have already compromised their Inherent, Aboriginal and Treaty rights by
agreeing to negotiate under the terms and funding conditions of these
Comprehensive Claims and Self-Government policies.
For example, following the 1997 Supreme Court of
Canada Delgamuukw decision, which recognized that Aboriginal Title exists
in Canada, the Assembly of First Nations tried to reform the Comprehensive
Claims policy to be consistent with the Supreme Court of Canada Delgamuukw decision.
However, the then Minister of Indian Affairs, Robert
Nault on December 22, 2000, wrote a letter addressed to then Chief
Arthur Manuel that essentially said why should the federal government
change the Comprehensive Claims policy if First Nations are prepared to
negotiate under it as it is?
A fair question: why do First Nations remain at negotiation
tables that ultimately lead to the termination of their peoples Inherent and
Aboriginal rights, especially since it appears that Modern Treaties are
routinely broken after they are signed by the federal government?
Many of these negotiations are in British Columbia where
despite the past twenty years of negotiations the B.C. Treaty process has
produced two small Modern Treaties, Tsawwassan and Maa’Nulth.
The Nisga’a Treaty was concluded in 2000, outside of the B.C.
Treaty process.
All of these Modern Treaties have resulted in extinguishing
Aboriginal Title, converting reserve lands into fee simple, removing tax
exemptions, converting bands into municipalities, among other impacts on
Inherent and Aboriginal rights.
The Harper Government’s Termination Plan
Aside from the unilateral legislation being imposed, or the
funding cuts and caps to First Nation’s and their political organizations, the
September 4, 2012, announcement of a “results based” approach to
Modern Treaties and Self-Government negotiations amounts to a “take it or
leave it” declaration on the part of the Harper government to the
negotiating First Nations.
Canada’s Comprehensive Claims Policy requires
First Nations to borrow money from the federal government to negotiate their “land
claims”. According to the federal government:
To date, the total of outstanding loans to Aboriginal
groups from Canada to support their participation in negotiations is $711
million. This represents a significant financial liability for the Aboriginal
community. In addition, the government of Canada provides $60 million in grants
and contributions to Aboriginal groups every year for negotiations.
It is Canada’s policies that forced First Nations to borrow
money to negotiate their “claims”, so the “financial
liability” was a policy measure designed by the federal government to
pressure First Nations into settling their “claims” faster. As
the federal government puts it, the Comprehensive Claims negotiation process
has instead “spawned a negotiation industry that has no incentive to
reach agreement.”
This accumulated debt of $711 million along with
the $60 million annual in grants and contributions have
compromised those negotiating First Nations and their leaders to the point that
they are unable or unwilling to seriously confront the Harper government’s
termination plan.
Over 50% of the Comprehensive Claims are located in B.C.and
the First Nations Summit represents the negotiating First
Nations in B.C., although some negotiating First Nations have now joined the Union
of B.C. Indian Chiefs (UBCIC), thus blurring the historic distinctions
between to two political organizations. The latter organization previously
vigorously opposed the B.C. Treaty process, but now the UBCIC remains
largely silent about it.
These two main political organizations -- the First
Nations Summit and the UBCIC -- have now joined together into the B.C.
First Nations Leadership Council, further blending the rights and interests
of their respective member communities together, not taking into account
whether they are in or out of the B.C. Treaty process.
This may partially explain why the Chiefs who are not in the B.C.
Treaty process also remain largely silent about the Harper
government’s “results based’ approach to Modern Treaties and
Self-Government negotiations.
First Nations in British Columbia are failing to capitalize
on that fact, that since the Delgamuukw Decision, the governments
have to list unresolved land claims and litigation as a contingent liability.
Such liabilities can affect Canada’s sovereign credit rating and provincial
credit ratings. To counter this outstanding liability, Canada points to the British
Columbia Treaty Process as the avenue how they are dealing with this
liability, pointing to the fact that First Nations are borrowing substantive
amounts to negotiate with the governments.
Another recent example of how disconnected B.C. First
Nations and their organizations are on international versus domestic policy and
law, is the First Nations’ outcry over the recent Canada-China Treaty.
The B.C. Chiefs and their organizations are publicly
denouncing the Canada-China Foreign Investment Promotion and Protection
Agreement as adversely impacting on Aboriginal Title and Rights, yet
they say or do nothing about Harper’s accelerated termination plan. It seems
the negotiating First Nations are more worried about the Canada-China
Treaty blocking a future land claims deal under the B.C.
Treaty process.
The Chiefs and their organizations at the B.C.
Treaty process negotiation tables have had twenty years to negotiate the “recognition
and affirmation” of Aboriginal Title and Rights, but this continues to
be impossible under Canada’s policies aiming at the extinguishment of
collective rights. As a result only two extinguishment Treaties have resulted
from the process. Even Sophie Pierre, Chair of the B.C. Treaty Commission has
said “If we can't do it, it's about time we faced the obvious - I guess
we don't have it, so shut her down”.
By most accounts the twenty year old B.C. Treaty
process has been a failure. It has served the governments’ purpose of
countering their contingent liabilities regarding Indigenous land rights. Yet
it seems the negotiating First Nations are so compromised by their federal
loans and dependent on the negotiations funding stream that they are unable or
unwilling to withdraw from the tables en masse and make real on the demand that
the Harper government reform its Comprehensive Claims and Self-Government
policies to be consistent with the Articles of the UNDRIP.
The same can also be said for the negotiating First Nations
in the Ontario, Quebec and Atlantic regions.
The Chiefs who are not in the B.C., Quebec or Atlantic
negotiating processes have not responded much, if at all, to Harper’s “results
based” approach to Modern Treaties and Self-Government. The
non-negotiating Chiefs seem to be more interested in managing programs and
services issues than their Aboriginal Title and Rights. As one federal official
put it, the Chiefs are involved in the elements of the 1969 White Paper
on Indian Policy like economic and social development while ignoring
the main White Paper objective—termination of First Nations legal status.
Conclusion
Given their silence over the Harper government’s “results
based” “take it or leave it” negotiations approach, it
seems many of the negotiating First Nations at the Comprehensive Claims and/or
Self-Government tables are still contemplating concluding Agreements under
Canada’s termination policies.
This can only lead to further division among First Nations
across Canada as more First Nations compromise their constitutional and
international rights by consenting to final settlement agreements under the
terms and conditions of Canada’s termination policies, while undermining the
political positions of the non-negotiating First Nations.
In the meantime, Harper’s government will continue pawning
off Indigenous lands and resources in the midst of a financial crisis though
free trade and foreign investment protection agreements, which will secure
foreign corporate access to lands and resources and undermine Indigenous
Rights.
Some First Nation leaders and members have criticised AFN
National Chief Shawn Atleo for agreeing to a joint approach with the
Harper government, including the Crown-First Nations Gathering (CFNG),
but to be fair, the Chiefs across Canada did nothing to pressure Prime Minister
Harper going into the CFNG. Instead, many Chiefs used the occasion
as a photo op posing with the Prime Minister.
The negotiating First Nations who are in joint processes
with Canada seem to be collectively heading to the cliff of the “Buffalo
Jump” as they enter termination agreements with Canada emptying out
section 35 in the process.
Much of the criticism of
AFN National Chief Atleo has
come from the Prairie Treaty Chiefs. Interestingly, if one looks at the federal
chart of the 93 negotiation tables
[
http://www.aadnc-aandc.gc.ca/eng/1346782327802/1346782485058] not too many
First Nations from historic Treaty areas are involved in the Self-Government
tables, except for the Ontario region where the
Union of Ontario
Indians and
Nisnawbe-Aski Nation are negotiating
Self-Government agreements.
As a result of the September 4, 2012 announcements regarding
changes to Modern Treaties and Self-Government negotiations, cuts and caps to
funding First Nations political organizations and unilateral legislation
initiatives, it is obvious that Prime Minister Harper has tricked the AFN
National Chief and First Nations by showing that the CFNG “outcomes”
were largely meaningless.
One commitment that Prime Minister Harper made
at the CFNG—which he will probably keep—Is making a progress report in
January 2013. The Prime Minister will probably announce the progress being made
with all of the negotiating tables across Canada, along with his legislative
initiatives.
It appears First Nations are at the proverbial “end of
the trail” as the Chiefs seem to be either co-opted or afraid to
challenge the Harper government. Most grassroots peoples aren’t even fully
informed about the dangerous situation facing them and their future
generations.
The only way to counter the Harper government is to:
·
have all negotiating First Nations suspend their
talks; and
·
organize coordinated National Days of Action to
register First Nations opposition to the Harper government’s termination plan;
·
Demand Canada suspend all First Nations
legislation in Parliament, cease introducing new Bills and
·
Change Canada’s Land Claims and Self-Government
Policies to “recognize and affirm” the Inherent, Aboriginal and Treaty Rights
of First Nations, including respect and implementation of the Historic
Treaties.
If there is no organized protest and resistance to the
Harper government’s termination plan, First Nations should accept their place
at the bottom of all social, cultural and economic indicators in Canada, just
buy into Harper’s jobs and economic action plan—and be quiet about their
rights.
*
The First Nations Strategic Bulletin is
a publication of the First Nations Strategic Policy Counsel, an informal group
of individuals who are practitioners in either First Nations policy or law. The
publication is a volunteer non-profit effort and is part of a series. For Back
Issues Go To: Canada Library & Archives - Electronic Collections.
Russell Diabo is the Publisher and Editor of First Nations
Strategic Bulletin. He can be reached via E-mail: at rdiabo(at)rogers.com
