CANADA’S WAR ON FIRST NATIONS TEMAGAMI Sept 21 12 [Compatibility Mode]

CANADA’S WAR ON FIRST NATIONSPresented By

Russell Diabo

Temagami Trent Colloquium

September 21, 2012

Origin of Canada

Canada bases its territorial integrity and assertion of sovereignty over Indigenous (First) Nations by continuing to rely on the racist and outdated notions of Terra Nulliusand the Doctrine of Discovery.

INDIAN ACT

Indian Act

The history and effect of the Indian Act has been bedeviled over the years by it’s conflicting and parallel objectives:

the protection of Indians and their lands on the one hand,

and the control, assimilation and civilization of Indian peoples on the other.

Indian Act

Initially, “Crown law” relating to the relationship between the Crown and the Indian nations found its source in the treaties made with the Indian nations, and prerogative instruments issued by the Crown.

Example is the Royal Proclamation of 1763 after French conquest and Pontiac’s War.

ROYAL PROCLAMATION OF 1763

Indian Act

The Crown never pretended to have authority to interfere in the internal affairs of the Indian nations. Rather, it used its authority to protect the Indian nations and their interests from intrusion or exploitation by colonial governments and British citizens.

By requiring that Indian nations could not cede land except to the Crown and by asserting its role as a protector of Indian interests & rights, the Crown assumed trust & fiduciary obligations to the Indian nations.

Indian Act

After the War of 1812, the Imperial government could not afford to maintain the empire. It began to off-load fiscal responsibilities to the colonial governments in exchange for a devolution of powers. Between 1830 and 1867 considerable powers were devolved to colonial legislatures, including the administration of Indian affairs and the management of Indian lands and trust funds.

Indian Act

By 1850, Upper and Lower Canada’s legislatures were passing relatively comprehensive legislation related to Indians which emphasized the protective duties of the Crown - for instance, An Act for the protection of Indians in Upper Canada from imposition, and the property occupied by them from trespass and injury (1850).

Indian Act

Indians were increasingly seen as a barrier to development and a burden on the colonial treasury. Assimilation and Civilization became central to government policy objectives - for example the Act for the Gradual Civilization of the Indian Tribes of the Canadas (1857). The purpose of this Act was the “gradual removal of all legal distinctions” between Indians and settlers, and it provided criteria for enfranchisement. This marked the beginning of intrusive legislative measures which began to interfere in the internal affairs of the Indian nations.

Indian Act

At Confederation, the federal government became responsible for “Indians and Lands reserved for Indians” through s.91(24) of the British North America Act, 1867. Existing Indian legislation was consolidated by the Liberal government of Prime Minister Alexander Mackenzie in the Indian Act of 1876. This Actembodied all of the contradictions of previous legislation, only more so.

Indian Act

On the one hand, there were sections which highlighted the protective duties of the Crown, and provided a legislative base for the implementation of the treaties. On the other hand, there were sections which were highly intrusive and which focused on the government priorities of assimilation, enfranchisement, and civilization.

Chief Piapot and his Warriors, and the Montreal Garrison Artillery, Regina,

Saskatchewan, 1885

Indian Act

Over the next 80 years, the Act was amended numerous times, focusing more and more on intrusion, control, and assimilation, and less and less on protection and the treaties.

Controls and/or prohibitions were placed on religious practises, leadership selection, mobility off-reserve, trade & commerce, and the raising of funds for claims.

Indian Act

Government was given increased powers to break up Indian reserves and Indian Bands. In 1884, companion legislation was passed - An Act for conferring certain privileges on the more Advanced Bands of the Indians of Canada, with the view of training them for the exercise of municipal powers. Among other things, it provided for Band Councils to levy taxes from Band members.

Indian Act

After WWII, Canada revisited the Indian Act in light of its overall strategy in national reconstruction. A Joint Committee of the House of Commons and the Senate was struck to review Indian policy and the Act itself. Between 1946 and 1948, Canada undertook what has been called “the first systematic effort by Government to consult with Indians” - and the era of consultation was born.

Indian Act

The key concerns raised by Indian leadership - self-government, the treaties, the land question – were ignored or dismissed by officials. Efforts were made to ensure that future “consultations” would be under firmer government control. In 1951, a revised Indian Act was adopted by Parliament. In most respects it was the same as the 1876 Act. The protective obligations of the Crown were seen only as a temporary duty which would disappear once complete assimilation had been achieved.

Indian Act

Between 1968 and 1969, Canada once again took another look at Indian policy, in light of Prime Minister Pierre Elliot Trudeau’s vision of individual equality for all Canadians and the dismantling of collective rights. As in the 1940's and 50's, extensive consultations were carried out, which were duly ignored by officials. The result was the release of the White Paper in 1969.

Chrétien and Trudeau

1969 WHITE PAPER ON INDIAN POLICY

1969 White Paper Objectives

Assimilation of First Nations. Remove legislative recognition. Neutralize constitutional status. Impose taxation. Encourage provincial encroachment. Eliminate Reserve lands & extinguish Aboriginal

Title. Economic underdevelopment of communities. Dismantle Treaties.

CONSTITUTION ACT 1982

Constitution Act 1982

On April 17, 1982, the Constitution Act 1982became law.

Section 35 of the new constitution “recognizes and affirms the existing aboriginal and treaty rights of aboriginal peoples”.

A series of First Ministers’ Conferences were held in 1983, 1984, 1985 and 1987, to identify & define the scope and content of sec. 35, but these constitutional conferences ended in failure.

CANADA’S WAR ON FIRST NATIONS

My belief--which is based upon my policy experience and observations over the past three decades of First Nations-Canada relations--is that the federal government (with provincial, municipal & judicial support) is attempting to empty out (limit & restrict) the meaning (scope & content) of Aboriginal and Treaty Rights in section 35 of Canada’s constitution until it is empty or “spent”.

Supreme Court of Canada:The Judges

Chronology of s. 35 Containment

1990 SCC Sparrow decision sets out justification framework for assessing assertion of s. 35 rights.

1992 Charlottetown Accord rejected by referendum. 1995 federal government unilaterally issues an “Aboriginal

Self-Government “ policy that sets out the scope and content of negotiating delegated self-government, although the government refers to the policy as an “Inherent Right Policy”.

1996 SCC Van der Peet decision narrows 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”


1996 Final Report & Recommendation of the Royal Commission on Aboriginal Peoples (RCAP) is released and subsequently ignored and shelved by the federal government.

1997 federal government tries to pass Indian Act Optional Modification Act, it dies when election is called.

1997 SCC Delgamuukw decision sets out legal principles and test for Aboriginal Title. Canada ignores the ruling and maintains CCP.


2000-2003 Canada tries to pass First Nations Governance Act over widespread opposition, Bill dies with prorogation of Parliament.

2003 Canada proclaims the Specific Claims Resolution Act.

2004 SCC Haida/Taku decisions on Crown’s duty to consult and duty to accommodate on assertion of Aboriginal Rights.

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

Haida at Supreme Court of Canada


Other recently passed federal legislation affecting First Nations involves a number of areas, including commercial and industrial development on reserve, land management, oil and gas and moneys management, taxation and financial and statistical management.

Since the adoption of s. 35, the Crown has tried to take advantage of the legal and political uncertainty of the scope and content of Aboriginal & Treaty rights by obtaining concessions through agreements.


Through arbitrary self-government and land claims policies the federal Crown has developed 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.

Reconciliation = Surrender

In comprehensive claims agreements the Crown governments seek assimilation of First Nations and extinguishment of Aboriginal Title and exchange of Aboriginal rights for more limited “Treaty” rights.

In comprehensive claims agreements the Crown seeks consent to a “non-assertion of rights” clause.

In specific claims agreements the Crown refuses to return land offering only cash as settlement. This has been rejected by Six Nations, Tyendinaga & Kahnawake.

RCAP Recommendation 1.16.2

The SCC while noting the 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 renewal by

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

(b) declaring that such concepts no longer form part of law making or policy development by Canadian governments;

RCAP Recommendation 1.16.2

(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 Aboriginal people assuming their rightful place in the Canadian federation; and

(e) including a declaration to these ends in the new Royal Proclamation and its companion legislation.

Courts are Part of the Crown

While the SCC decisions have been more generous in their interpretation of the scope and content s. 35 rights than Crown governments, 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 constitution, 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.

LEGAL TESTS & PROCESS

The Canadian courts have placed a heavy burden of proof upon First Nations who assert their Aboriginal or Treaty Rights. Under these legal tests First Nations have to produce historical, ethnographic and other evidence, which can cost millions of dollars to produce at a professional standard, not to mention the legal and court costs themselves.

1990 ARMY IN KAHNAWAKE

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.

As we have seen in the past, assertions/exercise of First Nation rights can lead to criminal charges and convictions and not just civil proceedings.

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

First Nations-Crown Conflicts

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

There are the high profile conflicts between First Nation peoples and the Crown governments. Some of these are Lubicon Lake, Oka, Ipperwash, Gustafson Lake, Barriere Lake, Burnt Church, Grassy Narrows, Caledonia, and more recently 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.


The Crown war is essentially a legal-political-economic conflict over the interpretation/assertion/implementation of Aboriginal and Treaty Rights over lands and resources by First Nations.

DOMESTIC vs. INTERNATIONAL

In Nov. 2010, the federal government reluctantly endorsed the United Nations Declaration on the Rights of Indigenous Peoples because Canada’s domestic ‘Aboriginal’ policies don’t meet the minimuminternational standards contained in the UN Declaration.

Some examples where Canada’s policies fail to meet international standards are: the denial of self-determination under the Covenant on social, political and economic rights; non-recognition and extinguishment of Aboriginal Title; and rejection of various other rights to prior informed consent and control over development on traditional territories.

FIRST NATIONS NEO-COLONIALISM

In Canada, it seems First Nations and their organizations, are so dependent on funding from the federal and provincial governments that they seem to be compromised in their ability to protest or resist Crown legislation, policies or practices.

The result over the past few decades, is that more and more First Nations and their organizations, are lining up to compromise their peoples constitutionally protected, but as yet undefined, Aboriginal and Treaty Rights for some program and service dollars.

HISTORIC TREATIES

The federal self-government and land claims policies also affect negotiations and federal operations surrounding the interpretation and implementation of historic Treaties. Before his 2006 electoral win, Prime Minister Harper showed his hand regarding the interpretation of historic Treaties when he responded to the Congress of Aboriginal Peoples in a letter stating “[b]y taking treaty, Indian Nations surrendered their lands”. Meanwhile, the federal self-government policy applies to First Nations with historic Treaties as well as those without historic Treaties.

CROWN-FIRST NATIONS GATHERING

SYSTEMIC RACISM

Remember, the Crown governments do not generally allow First Nations to use Crown funds for First Nations to take the Crown to court. Recent federal announcements in changes to 1) land claims & self-government negotiations; 2) cut backs in funding to First Nations and their organizations; 3) elimination of funding for advisory services will make it more difficult.

The judicial system is still part of the Crown’s assertion of sovereignty over First Nations.

There are numerous examples of the Crown governments taking advantage of First Nations as they allow corporations and others to exploit First Nations lands and resources without compensation.


If in the end if you still do not believe that the Crown is conducting a legal-political-economic “war” on First Nations, look at the recent media reports of the Canadian Security and Intelligence Service (CSIS) spying on the “Native Youth Movement” and the “Native 2010 Resistance”, the inclusion of “radical Indigenous groups” in Canada’s draft counterinsurgency manual, and the revelations about the Ontario Provincial Police Commissioner, Julian Fantino, using wiretaps and threatening the use of deadly force against the Mohawks of Tyendinaga, including making it his personal vendetta against Shawn Brant.


Even the more conservative among the First Nations should be worried about the security and police agencies of the federal government targeting First Nations people for simply asserting their rights to lands and resources.

If First Nations political action is met by police and/or military action such as in 1990, the conflict will be viewed nationally and internationally on the facts of the dispute. As such, First Nations need to document their historic and contemporary treatment by the Crown for public use in Canada and internationally.

HARPER AGENDA

Remove Aboriginal Peoples as a federal priority. Ignore 2005 “Kelowna Accord”. Focus on Individual rights over Collective rights. Cap and/or off-load spending. Use existing federal policies of Land Claims and

Self-Government to limit/empty out section 35 of any significant meaning.

Maintain Indian Act & impose amendments.

UNDRIP

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 the Articles of the UNDRIP & replace Indian Act by Recognition Act.

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 and the gaps identified and reported to the relevant U.N. bodies and agencies.

CONCLUSION

It appears that Canada’s war on First Nations is heating up as First Nations are forced to respond politically and legally to aggressive natural resource development sponsored by the federal and provincial governments.

For the first time in 30 years or so, First Nations & their organizations will have to reorganize due to major federal funding cuts & caps. First Nation Peoples will have to engage with their leaders to redefine their struggle for rights.

Oka type conflicts regrettably could emerge!

CANADA’S WAR ON FIRST NATIONS TEMAGAMI Sept 21 12 [Compatibility Mode]

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