SHAPE-SHIFTING COLONIALISMOVERVIEW OF CANADA’S TERMINATION PLAN

ONKWEHONWE GOVERNANCE AND POLITICS

Presented By

Russell Diabo, First Nations Policy Consultant

March 24, 2016

Shape-Shifting ColonialismOverview of Canada’s

Termination Plan

Our Colonial HistoryIndian ActContemporary Termination

Plan/Policies/TablesLiberal 2015 Promises UN Human Rights/UNDRIPConclusion

Western Hemisphere

Early European Contact & Change

Origin of Canada

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its territorial integrity and assertion of sovereignty over Indigenous Nations by continuing to rely on the racist and outdated notions of Terra Nullius and the Doctrine of Discovery.

Our Colonial History

Two-Row Wampum Belt Agreement

Algonquin Wampum Belts

Treaty of SwegatchyAugust 1760

Neutraility: The Seven Nations and their allies and dependents agreed to remain neutral as British forces descended on Montreal, provided Britain thenceforth treated them as friends.

Protection of Land Rights: The British Crown promised the Seven Nations, their allies and dependents, that they could continue to occupy their villages and hunting grounds without interference.

Freedom of Religion: The British Crown assured the Seven Nations, their allies and dependents, that they could continue to practice the Roman Catholic faith.

Treaty of KahnawakeSeptember 1760

Peace: The Seven Nations, their allies and dependents, agreed to make peace with Britain and its Six Nation allies and sever their links with the French.

Alliance: The Seven Nations, their allies and dependents, agreed to re(join) the Six Nations, their allies and dependents, in one large alliance in the British interest.

Mutual Support: The parties agreed to support one another in times of crisis. As part of the Covenant Chain Alliance, the Seven Nations, their allies and dependents, promised to provide Britain with military assistance against European powers or hostile Indian Nations.

Treaty of KahnawakeSeptember 1760

Free and Open Trade: The British Crown promised the Seven Nations, their allies and dependents, would have unfettered access to Anglo-American traders based in New York and other colonies.

Anti-Trespass: The parties agreed that the British Crown would regulate traders and, in the process, control the distribution of alcohol, in the Indian villages, at trading posts, and in the Indian country.

Protection of Land Rights: As at the Treaty of Swegatchy, the British Crown promised to protect Indian rights to their villages and hunting grounds.

Treaty of KahnawakeSeptember 1760

Freedom of Religion: As at the Treaty of Sewgatchy, Britain promised to allow the Seven Nations to practice the Roman Catholic faith.

Economic Assistance: The British Crown agreed to provide blacksmiths and other tradesmen to assist the Indian Nations, as had been the case with the French.

ROYAL PROCLAMATION OF 1763

1901- Rubbing of belts at Manitoulin Island, similar to one at Kahnasatake.

1764 Great Chain Wampum

24 Nations Haudenosaunee & Seven Nations Mohawks Oneidaes Tuscaroras Onondagaes Cayugaes Senecas Coghnawageys (Kahnawake) Ganughsadageys

(Kahnasatake) Nanticokes Canoys Mohicanders Algonkins Nipissengs

The Western Confederacy Chippawaes Ottawaes Menomineys Sakis Outagamies (Fox) Puans (Ho-Chunk – Winnebago) Christineaux (Cree) Hurons Toughkamiwons [Algonkins] [Nipissangs] {Reynards}

Upper Canada: 1791-1841

FATHERS OF COLONIALISMFirst legislative Assembly July 1, 1867

Federal Powers – Section 91

Public Debt and Property Regulation of Trade/Commerce Direct/Indirect Taxation Defence Navigation/Shipping Sea Coast and Inland Fisheries Ferries (interprovincial/ international) Currency, Banking /Incorporation of Banks/Paper Money Bankruptcy Patents, Copyrights Indians & lands reserved for the Indians Citizenship, Marriage/Divorce Criminal law, including Criminal Procedure

Provincial Powers – Section 92 Direct Taxation within Province Management/Sale of Public Lands belonging to

Province Prisons, Hospitals Municipalities Formalization of Marriage Property and Civil Rights Administration of Civil/Criminal Justice Education Incorporation of Companies Natural Resources Matters of a merely local or private nature

INDIAN ACT

Indian Act

The Indian Act has 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.

Canada’s Contemporary Termination Plan-Policies-

Negotiation Tables

Chrétien and Trudeau

1969 WHITE PAPER ON INDIAN POLICY

1969 White Paper Proposals

Eliminate Indian Status. Dissolve the Department of Indian Affairs within 5

years. Abolish the Indian Act & remove section 91.24.Convert reserve land to private property that can be

sold by the band or its members. Transfer responsibility for Indian Affairs from the

federal government to the province and integrate these services into those provided to other Canadian citizens.

Provide funding for economic development. Appoint a commissioner to address outstanding land

claims and gradually terminate existing Treaties.

CONSTITUTION ACT 1982

Constitution Act 1982On April 17, 1982, the Constitution Act

1982 became law. Section 35 of the new constitution

“recognizes and affirms the existing aboriginal and treaty rights of aboriginal peoples”.

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

1983 Amended Section 35

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.

(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.

(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.

Constitutional Colonization vs. Decolonization

Sec. 91.24 Sec. 35

Proposed Distinct Order of Indigenous

Government

Federal Powers Section 91

First Nations Powers

Section 35

Provincial PowersSection 92

Supreme Court of Canada:The Judges

FEDERAL INTERIM COMPREHENSIVE

CLAIMS/SECTION 35 POLICY

2014 Federal Interim CCP & Section 35 Policy

In September 2014, the federal Minister of Aboriginal Affairs, Bernard Valcourt issued an “interim” policy entitled “Renewing the Comprehensive Land Claims Policy: Towards a Framework for Addressing Section 35 Aboriginal Rights”.

The “interim” policy is merely a restatement of previous federal section 35 policies regarding extinguishment of Aboriginal Title and municipalization of Indian Bands.

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FEDERAL “CORE MANDATES”= KEY GOALS/CLAUSES

Getting consent to the extinguishment (modification) of Aboriginal Title;

Getting consent on the legal release of Crown liability for past violations of Aboriginal Title & Rights;

Getting consent to the elimination of Indian Reserves by accepting lands as private property (fee simple);

Getting consent to removing on-reserve tax exemptions;

FEDERAL “CORE MANDATES”= KEY GOALS/CLAUSES

Getting consent to respect existing Private Lands/Third Party Interests (and therefore alienation of Aboriginal Title territory without compensation);

Getting consent to be assimilated into existing federal & provincial laws;

Getting consent to application of Canadian Charter of Rights & Freedoms over governance & institutions in all matters (individual vs. collective rights);

Getting consent to program funding on a formula basis being linked to own source revenue;

Extinguishment of Aboriginal Title – Legal Techniques

certainty and finality;modified and released;

andNon-assertion of rights.

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Cash & Land

Cash & Land: The Comprehensive Claims Formula: $25,600 per head 9.3 Hectares (23 acres) per head

Federal Law & Policy Toolkit

1. Indian Act; 2. 1995 Aboriginal Self-Government Policy; 3. Specific Claims Policy; 4. Comprehensive Land Claims Policy; 5. Aboriginal Consultation & Accommodation

Guidelines 2011; 6. Federal Framework for Aboriginal Economic

Development 2009; 7. Additions-to-Reserve Policy; 8. First Nations Land Management Act; and 9. Assorted Program Policies Housing, Health, etc.

First Nations Negotiating Under Comprehensive

Claims & Self-Government Policies

Comprehensive Claims & Self-Government

Negotiations

Comprehensive Land Claims & Self-Government Tables

Minister Valcourt and Mohawks of Akwesasne Reach Historic Milestone in

Self-Government Talks

Looking Ahead - SOURCE: Aboriginal Affairs and Northern Development Canada - November 3, 2013

Under finalized governance arrangements, the Mohawk Council of Akwesasne would have law-making powers in these key areas: membership, elections, financial administration, managing their reserve lands, business and local economic development and the enforcement of First Nation laws. [Emphasis added]

Minister Valcourt and Mohawks of Akwesasne Reach Historic Milestone

in Self-Government Talks

Mohawk Council of Akwesasne laws will apply only on the First Nation's reserve land base in Canada and will operate within the Canadian constitutional framework. Federal and provincial laws will operate in harmony with First Nation laws. The Canadian Charter of Rights and Freedoms, the Canadian Human Rights Act and other laws of general application such as the Criminal Code will continue to apply to protect the interests of all individuals on First Nation land. [Emphasis added]

Minister Valcourt and Mohawks of Akwesasne Reach Historic Milestone

in Self-Government Talks

Governance agreements are not treaties and do not affect Aboriginal or treaty rights.

Non-members residing on First Nation lands would have input into decisions that directly affect them.

Indian Residential School Settlement Agreement

Apology From The Crown.A Common Experience Payment; An Independent Assessment Process;Commemoration Activities;Measures to support healing; and the

Indian Residential Schools; Truth and Reconciliation Commission.

Truth and Reconciliation Commission

Key Recommendations HEALTH: An acknowledgement that the current state of

aboriginal health is a direct result of previous government policies and the implementation of health-care rights for aboriginal people.

EDUCATION: The creation and funding for new aboriginal education legislation, which protects languages and cultures and closes the education gap for aboriginal people.

JUSTICE: A commitment to eliminate the overrepresentation of aboriginal people in custody and in trouble with the law, along with the collection and publication of data on criminal victimization of aboriginal people.

Truth and Reconciliation Commission

Key Recommendations PUBLIC INQUIRY: The creation of a public inquiry into

missing and murdered aboriginal women and girls.MONITORING: The creation of a national council for

reconciliation, which would monitor and report on reconciliation progress, as well as the introduction of an annual State of Aboriginal Peoples report delivered by the prime minister.

LANGUAGE: The government is asked to implement an Aboriginal Languages Act and appoint a language commissioner in order to preserve and promote it.

Truth and Reconciliation Commission

Key Recommendations FUNDING: The report calls for $10 million over seven years

from the federal government for the National Centre for Truth and Reconciliation

COMMEMORATION: The creation of a statutory holiday to honour survivors, their families and communities – and to ensure "public commemoration of the history and legacy of residential schools remains a vital component of the reconciliation process."

MEMORIALS: The report asks for funding for memorials, community events and museums, including a museum reconciliation commemoration program, to be launched in time for Canada's 150th anniversary in 2017.

Liberal Aboriginal Platform

Commitments2015 Election

Justin Trudeau’s 2015 Commitments

During the election campaign, the platform commitments (including the Liberal Party of Canada’s October 8, 2015, response to the BC First Nations Leadership Council) stated that a Liberal government will:

Immediately re-engage in a renewed nation-to-nation process with Indigenous Peoples to make progress on the issues most important to First Nations. . .

Prioritize developing—in full partnership with First Nations—a Federal Reconciliation Framework. This framework will include mechanisms to advance and strengthen self-government, address outstanding land claims, and resolve grievances with both existing historical treaties and modern land-claims agreements.

Justin Trudeau’s 2015 Commitments

Enact the 94 recommendations of the Truth and Reconciliation Commission, including the adoption of the United Nations Declaration on the Rights of Indigenous Peoples.

Recognize and respect Aboriginal title and rights in accordance with Canada’s Constitutional obligations, and further those enshrined in the UN Declaration on the Rights of Indigenous Peoples.

Immediately lift the two percent cap on funding for First Nations programs, and establish a new fiscal relationship with First Nations – one that provides them with sufficient, predictable, and sustained funding to support the priorities of First Nations communities.

Justin Trudeau’s 2015 Commitments

The Liberal Party of Canada has endorsed the recommendations in the Eyford report in their entirety and is committed to working in partnership with First Nations to fully implement them. We will look to First Nations’ leadership for guidance when making decisions on where investments should be made.

Undertake a full review of regulatory law, policies, and operational practices, in full partnership and consultation with First Nations to ensure that the Crown is fully executing its consultation, accommodation, and consent obligations, including on resource development and energy infrastructure project reviews and assessments, in accordance with our constitutional and international human rights obligations

International Human Rights Bodies/Standards

UN Human Rights Committee –Recommendations (1999)

The Committee … recommends that the practice of extinguishing inherent Aboriginal rights be abandoned as incompatible with article 1 of the Covenant.

UN Human Rights Committee –Recommendations (1999)The Committee …endorses

the recommendations of the RCAP that policies which violate Aboriginal treaty obligations and extinguishment, conversion or giving up of Aboriginal rights and title should on no account be pursued by the State Party.

United Nations Declaration on the Rights of Indigenous

Peoples (2007)

Selected Articles of UNDRIP

Article 3 – Right to Self-Determination. Article 10 – No forced removal w/o FPIC. Article 19 – FPIC required before

legislation/administration measures. Article 26 – Rights to lands, territories, resources. Article 27 – Fair process jointly developed to

adjudicate rights to lands, territories, resources. Article 32 – FPIC required for and development

affecting lands, territories, resources. Article 37 – Rights from Treaties, agreements,

constructive arrangements.

CONCLUSION

Trudeau’s 5 Point Plan (Priorities)

Launch a national public inquiry into missing and murdered indigenous women.

Make significant investments in First Nations education.

Lift the two per cent cap on funding for First Nations programs.

Implement all 94 recommendations from the Truth and Reconciliation Commission.

Repeal all legislation unilaterally imposed on indigenous people by the previous government.

Conclusion

What will the Trudeau government do about land claims, historic Treaties and self-government policies?

How will Trudeau government interpret section 35 rights & International Human Rights?

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