SURVIVING CANADA’S FIRST NATIONSTERMINATION PLAN

Presented By

Russell Diabo

207 Longhouse Kahnawake

June 6, 2014

Parts of Presentation

Our Colonial HistoryNeed for Information

Collection ManagementPreparing for and sustaining

Negotiations withGovernments & Industry

Our Colonial History

Canada’s Racist ColonialOrigins

Canada bases its territorialintegrity and assertion ofsovereignty over Indigenous(First) Nations by continuingto rely on the racist andoutdated notions of TerraNullius and the Doctrine ofDiscovery.

Treaty of SwegatchyAugust 1760

Neutrality. The Seven Nations and their allies anddependants agreed to remain neutral as Britishforces descended on Montreal, provided Britainthenceforth treated them as friends.

Protection of Land Rights. The British Crownpromised the Seven Nations, their allies anddependants, that they could continue tooccupy their villages and hunting groundswithout interference.

Freedom of Religion. The British Crown assuredthe Seven Nations, their allies and dependants,that they could continue to practice the RomanCatholic faith.

Treaty of Kahnawake,September 1760

Peace. The Seven Nations, their allies anddependants, agreed to make peace with Britainand its Six Nation allies and sever their links withthe French.

Alliance. The Seven Nations and their allies anddependants agreed to (re)join the Six Nations,their allies and dependants, in one large alliancein the British interest.

Mutual Support. The parties agreed to supportone another in time of crisis. As part of theCovenant Chain alliance, the Seven Nations andtheir allies and dependants promised to provideBritain with military assistance against Europeanpowers or hostile Indian Nations.

Treaty of Kahnawake,September 1760

Free and Open Trade. The British Crownpromised that the Seven Nations and their alliesand dependants would have unfettered accessto Anglo-American traders based in New Yorkand other colonies.

Anti-trespass. The parties agreed that the BritishCrown would regulate traders and, in theprocess, control the distribution of alcohol in theIndian villages, at trading posts, and in the Indiancountry.

Protection of Land Rights. As at the Treaty ofSwegatchy, the British Crown promised toprotect Indian rights to their villages and huntinggrounds.

Treaty of Kahnawake,September 1760

Freedom of Religion. As at the Treaty ofSwegatchy, Britain promised to allow theSeven Nations to practice the RomanCatholic faith.

Economic Assistance. The British Crownagreed to provide blacksmiths and othertradesmen to assist the Indian Nations, ashad been the case under the French.

ROYAL PROCLAMATION OF1763

War of 1812

FATHERS OF CONFEDERATIONFirst 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 conflictingand parallel objectives:the protection of Indians and

their lands on the one hand,and the control, assimilation

and civilization of Indianpeoples on the other.

Indian Act

In 1951, a revised Indian Act wasadopted by Parliament. In mostrespects it was the same as the1876 Act. The protectiveobligations of the Crown wereseen only as a temporary dutywhich would disappear oncecomplete assimilation had beenachieved.

Chrétien and Trudeau

Indian Act Consultations

Between 1968 and 1969, Canada onceagain took another look at Indian policy,in light of Prime Minister Pierre ElliotTrudeau’s vision of individual equality forall Canadians and the dismantling ofcollective rights. As in the 1940's and 50's,extensive consultations were carried out,which were duly ignored by officials. Theresult was the release of the White Paperin 1969.

1969 WHITE PAPER ONINDIAN 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 integratethese services into those provided to otherCanadian citizens.

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

land claims and gradually terminate existingTreaties.

CONSTITUTION ACT 1982

Constitution Act 1982

On April 17, 1982, the Constitution Act1982 became law.

Section 35 of the new constitution“recognizes and affirms the existingaboriginal and treaty rights of aboriginalpeoples”.

A series of First Ministers’ Conferenceswere held in 1983, 1984, 1985 and 1987,to identify & define the scope andcontent of sec. 35, but theseconstitutional conferences ended infailure.

Proposed Distinct Order ofIndigenous Government

Federal PowersSection 91

First Nations PowersSection 35

Provincial PowersSection 92

1983 Amended Section 3535. (1) The existing aboriginal and treaty rights

of the aboriginal peoples of Canada arehereby recognized and affirmed.

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

(3) For greater certainty, in subsection (1) "treatyrights" includes rights that now exist by way ofland claims agreements or may be soacquired.

(4) Notwithstanding any other provision of thisAct, the aboriginal and treaty rights referred toin subsection (1) are guaranteed equally tomale and female persons.

END OF MEECH LAKEACCORD 1990

1990 ARMY IN KAHNAWAKE

Liberal Government’s1993-2006

AFN-PM MEETINGJanuary 11, 2013

Need for InformationManagement/Evidence

Information Management

researchersgovernmentcommunity knowledge

industry

interest groupsacademics

} mapslettersreports

databasesstories

decision

interpretation

}

Logical Framework

Traditional EcologicalKnowledgeSocial CustomsToponymyABL-FECSensitive Area MappingMeasures to HarmonizeElders Field Trip

Projects:

PROGRAMINDIGENOUS KNOWLEDGE

Data CompilationDigitization of EcoforestryDataCut Plan Map DigitizationSynthetic Map ProductionBuffer Zone Study

Sub-Program: FORESTRYProjects:

Aerial Moose InventoryWildlife Data CompilationHabitat Supply Analysis& ModelingABL Harvest StudyMoose ManagementStrategy

Sub-Program: WILDLIFEProjects:

PROGRAMSUSTAINABLE DEVELOPMENT

OF NATURAL RESOURCES

Regional Socio-EconomicStudyABL Socio-Economic StudyLegal Framework Study

Projects:

PROGRAMECONOMIC/SOCIAL

DEVELOPMENT

TRILATERAL AGREEMENT

MITCHIKANIBIKOK INIK

MITCHIKANIBIKOK INIK SAS Mapping

WoodOccupancy

Moose YardsSpawning Areas

Sacred Areas

Burial SitesTobaccoMedicinal Plants

Sugar BushRoots

LEGEND

FAPAQ & MRN Affectation Zones

ABL Areas of Concern (SAS)

5. ACTS

38

PublicLandDesignations

Indigenous Databases

Federal government & Provinces developingconsultation processes & procedures, FirstNations need to do the same.

First Nations need to collect cultural, historicaland current use data and natural resourceinventory data.

First Nations need to assess how muchterritory has been taken up and what is left.

The consultation/accommodation processeswill be in effect for years, likely decades.

Supreme Court of Canada:The Judges

Haida at Supreme Court ofCanada

Negotiations Preparation& Support

SURVIVING CANADA’S FIRST NATIONS TERMINATIONPLAN

Harper’s Termination Plan

Termination in this context means theending of First Nations pre-existingsovereign status through federalIndian Act legislation, and/orcoercion of First Nations intoComprehensive Land Claims andSelf-Government Final Agreementsthat convert First Nations intomunicipalities, their reserves into feesimple lands and extinguishment oftheir Inherent, Aboriginal and TreatyRights.

Harper’s Termination Plan

A “results based” approach to negotiatingModern Treaties and Self-GovernmentAgreements was done in 2013-2014. This wasan assessment process of 93 negotiationtables, affecting 403 communities and331,945 people across Canada to determinewho will and who won’t agree to terminateInherent, Aboriginal and Treaty rights underthe terms of Canada’s Comprehensive Claimsand Self-Government policies. As of today all93 negotiation Tables are still listed on theAANDC website.

Comprehensive Claims Settlements

TERMINATION PLAN

In 2006, Stephen Harper’sConservative Platform promised to:

“Replace the Indian Act [and relatedlegislation] with a modern legislativeframework which provides for thedevolution of full legal anddemocratic responsibility toaboriginal Canadians for their ownaffairs within the Constitution,including the Charter of Rights andFreedoms.”

TERMINATION PLAN

“modern” in Conservative termsmeans assimilation of First Nations bytermination of their collective rightsand off-loading federal responsibilitiesonto the First Nations themselves andthe provinces.

“Aboriginal Canadians” is the termthe government of Canada uses todescribe First Nations because theTermination goal is to convert “IndianBands” into ethnic municipalities withfee simple lands under provincialjurisdiction.

TERMINATION PLAN

The Harper government isimplementing a First NationsTermination Plan through two tracks:1) a “Modern” amended Indian Act;

and/or through;2) Self-Government/Comprehensive

Claims Final Agreements.

MODERN INDIAN ACT

First Nations FinancialTransparency Act

Safe Drinking Water for FirstNations Act First Nations Election Act

Indian Act Amendmentand Replacement Act

First Nations Self-GovernmentRecognition

Act

First Nation Education Act(Pending)

First Nation Private PropertyOwnership Act

(Pending)

Omnibus Bills: C-38 & C-45

Family Homes on Reserves and MatrimonialInterests or Rights Act

TERMINATION PLAN

The Termination Plan isbased upon the followingkey federal objectivesusing federal laws,policies, funding and lawenforcement (and ifnecessary military).

TERMINATION PLAN

Getting First Nations consent to theextinguishment (modification) ofAboriginal Title;

Getting First Nations sign-off on thelegal release of Crown liability forpast violations of Aboriginal Title &Rights;

Getting First Nations acceptance ofthe elimination of Indian Reserves byaccepting lands in fee simple;

Getting First Nations acceptance toremoving on-reserve tax exemptions;

TERMINATION PLAN

Getting First Nations to respect existingPrivate Lands/Third Party Interests (andtherefore alienation of Aboriginal Titleterritory without compensation);

Getting First Nations to accept (to beassimilated into) existing federal &provincial orders of government;

Getting First Nations to acceptapplication of Canadian Charter ofRights & Freedoms over governance &institutions in all matters;

Getting First Nations to accept Fundingon a formula basis being linked to ownsource revenue;

Conclusions

HISTORY

History – Know your own history, customs,practices, laws and the treatment of yourpeoples by successive Crown governments(both oral & archival) and connection toyour territory, lands & resources. This isimportant to show “strength of claim”evidence when seeking accommodationsfrom Crown governments/Industry regardingcurrent or planned projects/activities ontraditional lands.

INFORMATION/EVIDENCE

Information/Evidence – For decision-making and negotiations support theIndigenous Peoples historicalsubstantiation & documentation needsto be combined with contemporaryland & resource managementinformation; 1) Resource inventories, 2)legislative/regulatory/governanceframeworks 3) List of third partiesoperating on traditional territory, 4)Identification of alienated lands vs. lessencumbered lands.

NEGOTIATION SUPPORT

Negotiation Preparedness & Support –1) Knowledge of Canadian constitutional &international legal/policy frameworks ofIndigenous, Aboriginal, Treaty & Human Rightsand legal counsel, 2) an information database(historical & resource management) to draw fromduring negotiations 3) access to aninterdisciplinary team of advisors (in-house orconsultants) for Indigenous Leadership/Peoplesand 4) identification of sources of sustainedfunding, 5) Preparation of litigation strategy as anoption.