CANADA’S ASSIMILATION POLICIES

Presentation by Russell Diabo First Nations Policy Consultant

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integrity and assertion of sovereignty over Indigenous (First) Nations by continuing to rely on the racist and outdated notions of Terra Nullius and the Doctrine of Discovery.

Chrétien and Trudeau

Key Elements of ‘1969 White Paper on Indian Policy’

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Eliminate the legislative and constitutional recognition of Indian status. Abolish Indian Reserves & impose taxation. Dismantling of Treaties. Off-load federal Indian programs & services onto provinces, municipalities and First Nation communities. Entrench economic underdevelopment.

Constitution Act 1982
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On 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.

Supreme Court of Canada: The Judges

Section 35 - SCC Justification Test

The Van Der Peet case established the test to prove Aboriginal rights. In that case the Supreme Court of Canada noted that any test used to identify an Aboriginal right must be directed to the practices, traditions and customs central to the Aboriginal people concerned, prior to European contact. Thus, to qualify as an Aboriginal right the activity must be integral to the distinctive culture of the Aboriginal society claiming the right, as at the time of first contact.

Section 35 - SCC Justification Test

Treaties are dependant on the terms of the treaties. However, even in the case of treaties, the terms are not always clear because the documents were written in ancient times, or the treaty text may have not survived, or the written terms are at variance with, or are supplemented by oral terms which did not find their way into the text. Accordingly, courts have devised tests for determining the terms of treaties in such circumstance.

Section 35 - SCC Justification Test

while the Supreme Court has held that Aboriginal and treaty rights enjoy constitutional protection, it has also made it clear that such rights are not immune from federal and provincial law. The courts have determined that the constitutional protection of aboriginal and treaty rights provided by section 35 means that governmental action can only infringe Aboriginal and treaty rights according to strict legal criteria. The tests for justifying an infringement are set out in the Sparrow case and subsequent judgments.

Section 35 - SCC Justification Test

The first issue to be dealt with under this test is to determine if there is an infringement: is there federal or provincial legislation that has the effect of interfering with an existing Aboriginal or Treaty right. If so, there is a prima facie infringement of s.35(1). Once an infringement has been found, the analysis then moves to the Justification test, which shifts the onus on the Crown to demonstrate that the infringement is justified. The justification test requires a case-by-case analysis and has two aspects.

Section 35 - SCC Justification Test

First of all, the Crown must prove that the law which infringes the right has a valid legislative objective. For example, “conservation” for wildlife management legislation is a valid legislative objective. Secondly, the Crown must prove that the infringement is consistent with its fiduciary obligations to Aboriginal peoples. This branch of the test is an affirmation that the Crown has a legal duty to protect the rights of Aboriginal peoples and will not be lightly permitted to infringe those rights unless there are very compelling reasons for doing so.

Section 35 - SCC Justification Test

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The honour of the Crown and its duty to fulfill its fiduciary obligations to Aboriginal people must be the first consideration to determine whether or not the legislative objective is justified. The questions that should be asked under this part of the justification test are: Has there been little as infringement as possible in order to effect the desired result? Has the aboriginal group been consulted and its rights accommodated? Has the group been compensated for any infringements?

Section 35 - SCC Justification Test

The fact that Aboriginal and treaty rights may be infringed tends to weaken the constitutional protection those rights are accorded in s. 35. It is fair to say that Courts have been overly deferential to the Crown in assessing whether legislation which tends to infringe Aboriginal and treaty rights is justified. This is particularly the case where the alleged Aboriginal and treaty right is potentially unrestricted, or where the law in question is criminal or tax legislation.

Section 35 - SCC Justification Test

It is important to put the “justified infringement” aspect into proper perspective. This means emphasizing the Aboriginal and treaty rights aspect and remembering that the Crown has the burden to prove that its infringements are justified. According to the legal tests, this requires the Crown to “consult” and even pay “compensation” where it wishes to infringe s. 35 rights.

Chief Piapot and his Warriors, and the Montreal Garrison Artillery, Regina, Saskatchewan, 1885

Self-Government: Background to “Inherent Right”

In 1995, the federal Liberal government issued an “Aboriginal Self-Government” negotiations policy. The policy is a direct attack on the sovereignty and nationhood of First Nations. The first thing to know about the federal “Aboriginal SelfGovernment” policy is that: The policy is not specifically for "First Nations" or "Indians". Throughout the text, the term "Aboriginal people" (not peoples) is used. This policy then, is to apply not only to the Indian Nations, but also to the Inuit, the Metis, and the various off-reserve Indian organizations that now exist, or may come into existence. By lumping the unique circumstances and particular legal and historical rights of Indian nations in with other "Aboriginal people", the policy succeeds in lowering the ceiling of what is on the table for negotiation, and the overall parameters of the nature and scope of the inherent right.

Self-Government: Pre-Conditions to Negotiations
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in harmony with jurisdictions that are exercised by other governments". This will require "a harmonious relationship of laws". The inherent right does not, in Canada's view, include "the right of sovereignty in the international law sense".
Self government agreements and treaties must contain a provision allowing for the application of the Charter of Rights & Freedoms to aboriginal governments. "As a general rule.... agreements will not deviate from the basic

Whatever ends up obtaining recognition as an inherent right, there are preconditions to negotiations which the federal government has laid out in the “Self-government” policy. These are that: First Nations must operate "within the framework of the Constitution....

principle that federal and provincial laws of an overriding national or regional importance will take priority over Aboriginal laws."

Federal and provincial laws cannot be automatically displaced by the introduction of a First Nation law - federal and/or provincial laws may continue or coexist, depending on the outcome of negotiations.

Self-Government: What’s on the Table!
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Only some self government rights will be considered “inherent”. These fall into two main categories:

"reserve lands", probably with the option of exercising some kinds of authority on some Crown lands, where provincial consent is obtained. These are the rights that Canada is ready to accept as “inherent rights” already protected by s. 35, although their actual definition and meaning, and specific application to a particular Indian Nation, will—according to Canada’s policy--still require negotiation with Canada, and ultimately Canada's consent. In this sense, “inherent rights” - their definition and their implementation - are dependent upon Canada (and in some cases provincial) agreement. This is certainly a case where Canada has taken the terminology and made it mean what it was never intended to mean, in other words “double speak”: they say “inherent”, but what Canada means is that “inherent rights” are totally conditional, to reaching agreements with the federal and provincial governments. The implications of this word-game are significant, and shows how deception is till a weapon of Canada. This “self-government” policy allows Indian Act Chiefs and Councils to tell their people they are negotiating with the external governments for federal (and provincial) recognition of “inherent rights”, while the opposite is true.

(i) "matters that are internal, and integral to their own cultures, identities, traditions, languages, and institutions." [emphasis added] (ii) "matters relative to the special relationship to the land." This is code for

Self-Government: What’s on the Table!

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There are two basic categories of powers that Canada has identified that set the limits of “self-government” negotiations: 1. Existing “Inherent” Rights: As already pointed out, in Canada's view existing inherent rights are those matters which are internal and integral to aboriginal culture and identity, as well as, those which relate to the management of reserve lands. Consistent with this approach, the items which can be negotiated under this heading are those that relate to internal governance, administration, and reserve lands. More specifically, this could include "all, some or parts of the following":

Self-Government: What’s on the Table!
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"governing structures" (constitutions, elections, accountability, etc.) Membership, marriage, adoption, child welfare, social services. Education, "aboriginal languages, culture and religion", health. "Administration/enforcement of Aboriginal laws; aboriginal courts or tribunals of the type normally created by local governments for contravention of their laws" [emphasis added]; policing. "Transfer and management of monies and group assets". Licensing, regulation & operation of businesses "located on Aboriginal lands" (ie., on reserve). "Management of local and community public works and infrastructure", housing. On reserve lands management: zoning, service fees, land tenure and access; property management (succession and estates); "expropriation of Aboriginal lands [ie., reserve lands] for local group purposes"; natural resource management & agriculture. On reserve harvesting: hunting, fishing and trapping. (probably off
reserve too, subject to agreement with provinces).

Self-Government: What’s on the Table!

Some of these items (ie., natural resource management, agriculture, harvesting) are of limited use unless they are accompanied by an increased land base. Significantly, the federal “Self-Government” policy does not deal with the question of additional lands for First Nations at all. It does, however, state that many of these headings of power are "only feasible with a land base". This is directed at those "Aboriginal people" (Metis and off reserve/non-status) who do not reside on established reserve lands.

Self-Government: What’s on the Table!
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2. Federal Delegated Powers: There are other subject areas which, in Canada's view, "may go beyond matters that are integral to Aboriginal culture", but where Canada is willing to negotiate agreements on a tripartite basis "to enable Aboriginal governments to exercise some measure of jurisdiction or authority". [emphasis added] However, this offer to negotiate these subject matters requires an admission of overriding federal authority. In the subject areas that involve federal jurisdiction primary lawmaking authority, according to the “Self-Government” policy, would always remain with the federal government. The exercise of Aboriginal jurisdiction or authority in these areas could therefore not be inconsistent with federal laws.

Self-Government: What’s on the Table!
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The subject areas under this category include: Taxation powers: The power to tax is not considered by Canada to be an “inherent right” in character, even though it is clear that the redistribution of wealth and the stewardship of resources for collective benefit have always been a part of indigenous societies. This has major implications when considered along with other aspects of the federal “self-government” policy that call on “Aboriginal” governments to raise their own revenues, or which allow that the regulation of commerce on reserve is an “inherent right”. The position taken by Canada assumes that First Nation governments do not possess tax immunity or the authority to use taxation as a means of achieving social and economic policy objectives, even though these powers are clearly accepted as essential components of existing provincial and federal headings of power. In this sense, for Indian nations, the “inherent right” means less than what other governments take for granted.

Self-Government: What’s on the Table!

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Labour law. Divorce law: Although Canada seems prepared to concede that
marriage comes under the inherent right, divorce does not.

The administration of justice; penitentiaries and parole. Aspects of environmental protection and assessment and pollution control: This is significant, since reserve lands, being

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federal, are subject to federal Environmental Assessment Guidelines and the Canadian Environmental Protection Act. Canada's willingness to recognize land management as an “inherent right” will not, therefore, necessarily remove federal laws or authority from reserve lands. Fisheries co-management: This would seem to be a major concern, given ongoing conflicts in British Columbia and the Atlantic. Gaming: As above, this promises to present difficulties.

Emergency preparedness.

Self-Government: What’s not on the Table!

There are two categories of subject matters which Canada is not prepared to negotiate in the context of the “inherent right” 1) powers related to Canadian sovereignty, and 2) "other national interest powers". In these areas, according to the “self government” policy, exclusive jurisdiction must remain with the federal government. Moreover, there are no compelling reasons for Aboriginal government to exercise power in these areas, which “cannot be

characterized as either integral to Aboriginal cultures, or internal to Aboriginal groups" [emphasis added]

For some of the headings listed below, however, this reasoning is quite arbitrary and unacceptable, particularly given the fact that upon contact with the Europeans, Indian nations' treaty making powers and control over the conduct of "foreign affairs" were clearly recognized.

Self-Government: What’s not on the Table!
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(i) Powers Related to Canadian Sovereignty, Defence & External Relations: International/diplomatic relations & foreign policy national defence & security security of national borders international treaty-making immigration, naturalization and aliens international trade, including tariffs and import/export controls
The fact that many Indian nations have traditionally used and occupied lands and resources on both sides of the USA-Canada border confirms that this movement of Indian people is in fact integral to the culture and practises of particular nations such as the Mohawk Nation.

Self-Government: What’s not on the Table!
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(ii) Other "National Interest Powers":

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Management and regulation of the national economy, including "regulation of the national business framework", fiscal and monetary policy, currency, the banking system, trade and competition policy, bankruptcy and insolvency; intellectual property, and the incorporation of federal corporations. "maintenance of national law and order and substantive criminal law", including Criminal Code offenses and penalties and "other criminal laws", as well as emergencies and the peace, order and good government power. "Protection of health and safety of all Canadians". "Federal undertakings and other powers", including broadcasting and telecommunications, aeronautics, navigation & shipping, transportation, postal service, census and statistics.

Self-Government: Provincial Role in Negotiations
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The federal “self-government” policy makes it clear that provincial participation in negotiations is essential. However, the reality of provincial powers, and their impact on what can be negotiated, is not dealt with in any detail in the federal :self-government” policy. This silence should not be interpreted to mean that provincial governments will not also have their own lists of "negotiable" and "non-negotiable" items from their own menu of constitutional headings of power. According to the federal “self-government” policy, any First Nation jurisdiction off reserve (ie., harvesting, lands and resources, off-reserve members & services) or which affects the provincial headings of power (ie., taxation, commerce) will require provincial - as well as federal - participation and consent.

Self-Government: Courts vs. Negotiations
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implementation, both because of time and cost factors, and because the courts are most likely to provide only general guidance and leave it to the parties to work out detailed arrangements for the exercise of the inherent right...... Negotiations among governments and Aboriginal people are, therefore, the only practical and effective way of implementing the inherent right.”
The federal “self-government” policy does not rule out the potential for litigation. It states clearly that if litigation is pursued, Canada will take a harder line on the nature and scope of the inherent right than what is offered through its “self-government” policy. Although in court Canada "would not

Canada admits that its views on the nature and scope of the “inherent right” are different than those of the First Nations, and recognizes that "the inherent right may be enforceable through the courts". However, Canada says that it prefers negotiations: “Litigation over the inherent right should be a last resort to

deny the general proposition that the inherent right of self government is an existing right within Section 35", it would argue for case by case
review based on circumstances particular to the First Nation:

Self-Government: Courts vs. Negotiations

In individual cases consideration would be given... “to the

particular history of an Aboriginal group, and its relationship, if any, to an existing land base.”

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To try and limit the possibility of court action after agreements have been signed, Canada suggests that the agreements: “ ... may establish rules of priority to govern conflicts

between validly enacted Aboriginal laws and federal or provincial laws and may provide for paramountcy of Aboriginal laws in areas that are purely internal to an Aboriginal community and integral to its distinct Aboriginal culture.” [emphasis added]

In the negotiations, Canada will decide just what is "integral" to a "distinct Aboriginal culture". This will not be left up to the First Nations.

Financing Self-Government

This is a crucial aspect of any effort at renewed institutions of Indian government, and promises to be one of the most contentious. Canada’s “self-government” policy says that financing self government is "a shared responsibility of

federal, provincial, territorial and Aboriginal governments".

Self-Government Financial Accountability & Control

Agreements on financing will take the form of tripartite agreements, as well as in some cases bilateral agreements between Canada and the province. Canada "will maintain its position that

feds will pay most of the costs for on-reserve Indians and the Inuit, while the provinces will be expected to pay most of the costs for off-reserve Indians and Metis. Funding for self government must be affordable and consistent with the social and economic policies and priorities of [federal and provincial] governments. The fiscal and budgetary capacity of the federal, provincial, territorial and Aboriginal governments will be a primary determinant of the financing of self government.

it has primary but not exclusive responsibility for on-reserve Indians.... while provinces have primary but not exclusive responsibility for other Aboriginal people". This means that the

Self-Government Financial Accountability & Control

This means that even with "self government", Canada and the provinces will continue to control the purse strings and set priorities. Note that First Nations "needs", or an equitable distribution of overall fiscal resources, are not mentioned at all with respect to the financing of self government. Fiscal negotiations will instead focus on existing levels of funding, as well as the ability of "Aboriginal groups" to raise their own revenues, and efficiency & costeffectiveness. These positions and their implications need to be connected to our earlier point made about taxation as a non-inherent right.

Self-Government: Maintain Existing Spending Levels

and minimal standards of program & service delivery which may have been agreed upon".

It is clearly stated that "All federal costs associated with the implementation of self-government agreements will be accommodated within existing federal expenditures". [emphasis added] This position is taken even with the acknowledgement that self government negotiations and new institutions, as well as one time start up costs, will represent considerable costs. In other words, there will be more to do with the same amount of money - so reductions in some areas will have to take place in order to free up funding resources for new areas of activity. At the same time, the “self-government” policy bluntly takes the position that "self government agreements will not include any program enrichment", while ignoring the fundamental question as to whether or not existing program funding levels are adequate to meet needs. However, it is held out that once self government agreements are in place, "Aboriginal governments" will be free to redirect their monies into whatever areas they want, "subject to maintaining whatever statutory requirements

Self-Government: Maintain Existing Spending Levels

This is very similar to the position taken by Canada in its ongoing debate with the provinces about block funding transfer payments (ie., health care, social services and education): overall levels of transfers will be reduced, but provinces will enjoy more flexibility with respect to how they spend the remainder. Canada says that governments should work together to "harmonize funding, program and service duplication of services and funding will be targeted during negotiations.

arrangements to ensure the efficient and effective use of scarce resources". This appears to mean that

Self-Government & Taxation

"Where feasible, Aboriginal governments and institutions

is particularly important in light of the fact that taxation does not appear on Canada's list of inherent rights, but rather on the next level of jurisdictions which remain federal. According to the “self-government” policy, Indians who strike costly land claims deals and form their own governments should eventually pay taxes back into Canadian society. Crown governments are well aware that the financing of self government and Indian taxation are volatile issues. In this connection, they rely on public reaction to diminish Indian expectations.

should raise their own revenues in order to reduce reliance, over time, on transfers from other governments." This point

Self-Government & Taxation

At the same time, this approach betrays Canada's supposed commitment to recognition of the “inherent right”: it is a generally accepted principle in Canada that all governments have a right to tax, and to be immune from tax by other governments. It is also accepted that governments are free to use taxation as a tool in promoting their economic and social policy objectives. Canada's exclusion of taxation from the list of “inherent rights”, which it is prepared to recognize does not appear to allow for this recognition. Rather, it dooms Indian governments to perpetual dependence on Crown governments.

Caledonia

The existing Comprehensive Claims policy denies that Aboriginal title exists. Negotiations proceed on the basis that “some rights” might exist, but without any recognition of Aboriginal title. The policy requires a complete surrender and extinguishment of any of the rights that “may exist”. Given what the Court has concluded regarding the nature, scope and value of Aboriginal title, this requirement can only be seen as sharp dealing and dishonourable to the honour of the Crown. The failure to recognize the existence of Aboriginal title and rights at the outset immediately tips the scales away from First Nation rights and objectives, and instead focusses the discussion on federal needs and objectives (and those of third parties and provincial interests).

Comprehensive Land Claims Policy Recognition vs. Denial & Extinguishment

Comprehensive Land Claims Policy Recognition vs. Denial & Extinguishment

Canada cannot have its cake and eat it to: it cannot demand that First Nations consider extinguishment of their rights, without even recognizing those rights as a basis for subsequent negotiations. The way the policy works now, Canada concedes nothing but gains everything at the end. This is entirely onesided and bears no resemblance to the process of cooperative reconciliation that the Court called for. Most important, Delgamuukw makes it clear that extinguishment is not required to reconcile Aboriginal title with Crown title, except in extreme and limited circumstances. Canada’s continued insistence on extinguishment, without even a tacit recognition of title in the first place, flies in the face of the Supreme Court’s conclusions.

Comprehensive Land Claims Policy Recognition vs. Denial & Extinguishment

As already stated, Canada does not admit to the existence of Aboriginal title in its Comprehensive Claims policy. Therefore, there is no recognition that First Nations actually own the lands and resources within their traditional territories. The “resource revenue sharing” components of existing Comprehensive Claims agreements reflect this denial - the First Nation “share” is arbitrarily capped, and does not reflect their ownership of the resources in question. This is inconsistent with the Court’s findings in Delgamuukw, which included the recognition that Aboriginal title has an “inescapable economic component” that comes by virtue of First nation’s right to “exclusive use and occupation” of their lands and resources. In addition, the policy explicitly denies that First Nations own subsurface resources – which is also at variance with the findings of the Court in Delgamuukw, where it concluded that Aboriginal title does indeed include minerals, oil and gas, and other subsurface resources.

Comprehensive Land Claims Policy Value of Assets, Compensation, Loan Funding

The Comprehensive Claims policy does not permit the real book value of Aboriginal assets (ie., traditional lands & resources) to be considered in negotiations. Instead, “benefits” to come from a final agreement are subject to arbitrary measurements: for instance, “comparability” with other settled claims and available budgets (which in turn are established unilaterally and arbitrarily). Again, this is in opposition to the Supreme Court’s findings in Delgamuukw, which confirmed that Aboriginal title is a property right with a real value, one not normally given up without “valuable consideration”.

Comprehensive Land Claims Policy Value of Assets, Compensation, Loan Funding

Moreover, under the smokescreen of being “forward looking”, the existing Comprehensive Claims policy explicitly prohibits any compensation for past losses, damages, infringements or foregone revenues. This too is contrary to the Supreme Court’s findings in Delgamuukw, where they made it clear that in cases of infringement, and depending on the degree, compensation is due. Finally, under the existing policy, negotiations are covered through “loans” given to the First Nation by Canada and/or the Province, to be re-paid from the final cash settlement. This arrangement lends itself to abuse, and has been used in the past by Canada to manipulate First Nations’ decision making processes. However, if, as the Supreme Court found, First Nations who have Aboriginal title actually own their lands and resources, then how can Canada maintain this approach?

Comprehensive Land Claims Policy Interim Measures

The existing Comprehensive Claims policy is notorious for its lack of effective interim protections for Aboriginal lands and resources, and for beneficiaries (no claimant group has been able to obtain interim relief for elders since the Council for Yukon Indians did so back in the early 1980's). Because of this situation, Aboriginal lands and resources continue to be alienated while negotiations take place, without any remedy. First Nations are not provided any meaningful interim role in land and resource management during negotiations. As well, elders receive no interim relief, despite the fact that negotiations often continue for years. This arrangement is prejudicial to the interests of First Nations and their members.

Comprehensive Land Claims Policy Interim Measures

On the other hand, by recognizing that Aboriginal title is a real property right, and that infringement requires justification, Delgamuukw appears to say that interim measures are essential in any reconciliation of Crown title with Aboriginal title - before the proposed infringing activity, and not after.

Comprehensive Land Claims Policy Federal vs. Provincial Responsibilities

The existing Comprehensive Claims policy gives an effective veto to provincial governments over most of the key areas of negotiations - lands, resources, and revenue sharing. The reason for this, says Canada, is that according to the Constitution, the provinces have a beneficial interest in the lands and resources within their borders. This puts First Nations in a very difficult position, since, as history demonstrates, provincial governments have been the most hostile towards First Nations and their rights. Delgamuukw changed the rules as far as provincial veto power goes. The Court found that the federal government’s s.91(24) responsibilities for “Indians” and “lands reserved for Indians” applies to Aboriginal title lands within provincial boundaries. This means that Canada now has the tools at its disposal to protect First Nations from the adverse interests of the province, and to compel provincial governments to act in an honourable way.

Comprehensive Land Claims Policy Federal vs. Provincial Responsibilities

Federal officials have been at pains to try and explain this one away. So far, the best they can do is to take a narrow view, that the Court’s comments were only intended to refer to federal lands (ie., national parks, etc.) within provincial boundaries, or, that Aboriginal title must be proven before any federal obligation kicks in. It is clear that Canada does not at this time intend to exercise its legislative responsibility to protect First Nations from adverse provincial interests.

Comprehensive Land Claims Policy Unilateral Policy Development

Finally, it is worth taking a step back to look at the policy development process itself. The Comprehensive Claims policy was designed and imposed unilaterally by Canada, without real participation by First Nations, and without taking their legitimate concerns and constitutional rights into account. It was developed to serve the interests of Canada, without due regard to the rights of First Nations, or Canada’s fiduciary obligations to the First Nations. It is precisely this conflict of interest which taints the whole policy and process: on the one hand, Canada has a fiduciary duty to act in the best interests of First Nations; it has a s.91(24) responsibility to protect their interests against the provinces; and it has a duty to act honourably and without sharp dealing.

Comprehensive Land Claims Policy Unilateral Policy Development

And yet the current policy, developed and implemented unilaterally, allows Canada to act in its own interests, to the detriment of First Nations. In Delgamuukw, the Court’s comments about consultation and reconciliation imply that the basis for negotiations should be cooperatively negotiated between Canada and the First Nations, and not unilaterally imposed by one party. This translates into a mutually agreed upon policy, which itself is the result of good faith negotiations. Unfortunately, to date the federal government has refused to commit to amending its policy to conform with the principles and standards set out in Delgamuukw, let alone undertake policy revision cooperatively with the First Nations.

Haida at Supreme Court of Canada

Post-Haida/Taku Assessment

The Haida decision means that the Crown has to have knowledge of any “pre-proof” “claims” and concerns about serious “infringements” or “irreparable harm” that is or will be caused by provincially (and federally) authorized activities or plans that affect Aboriginal lands and resources on traditional territory, pending the reconciliation of Aboriginal title and rights with the Crown’s assertion of title, through a treaty, agreement or court determination.

Post-Haida/Taku Assessment

Each community should immediately assess the Crown processes that they are currently participating in, to see if they should continue, seek changes, or demand another process. Note: Provincial-Territorial Organizations, their member communities and their Tribal Councils must be very careful about when they engage consultation with Crown governments and participate in Crown processes. Look at the Taku River Tlingit decision to see why they lost their court challenge. The SCC determined that they were meaningfully consulted because of the processes they participated in and the accommodation they received in the processes.

Post-Haida/Taku Assessment

Each community should immediately assess any current agreements with the Crown and/or third parties regarding traditional lands and resources, to see if there needs to be changes to the agreements or processes, on the part of the community, or on the part of government or third parties, as a result of the Haida decision. Each community should coordinate with their Tribal Council and possibly their Provincial-Territorial Organization, regarding identification of community “pre-proof” lands and resources issues and status of discussions with the provincial and federal governments.

Post-Haida/Taku Assessment

As much as possible there should be common positions adopted between and among the member communities of a First Nation, because as the Haida decision established, the “pre-proof” consultation and accommodation phase is only until the Aboriginal title and rights “claims” are reconciled with the Crown’s assertion of sovereignty over First Nations’ traditional territory, through a treaty, agreement or court determination. This won’t be for awhile, possibly years, perhaps decades, so it is important for the communities to continue to work together on lands and resources research and how to use it in the interim period.

“Prima Facie” Aboriginal Title

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Correspondence, journals, maps, and other records of early explorers; Fur trade records; Records of missionaries who operated in the area; Records of gold prospectors and Gold Commissioners; Record of the Geological Survey of Canada;

“Prima Facie” Aboriginal Title
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Colonial correspondence and records; Records of the Reserve creation process; Department of Indian Affairs records; Other records of the provincial and federal governments; Records of tribal political organizations; Trap line registration records; Material produced by early ethnographers;

“Prima Facie” Aboriginal Title
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The work of ethnobotanists; Recorded or published oral histories; Archeological sites and heritage inventories; Maps and gazetteers; Photographs and other visual aids; Newspaper clippings; Contextual research and a thorough literature search. (Source: Affidavit of Robin Yvonne Smith, Researcher, Aboriginal Research Centre, Ministry of AttorneyGeneral, B.C.)

Capacity Building
RECOMMENDATIONS:  All bands and organizations should review and formalize the role of their lands and resources technical units in their organization.  Institute an education program aimed at increasing the awareness of management information amongst First Nation leaders and community members.

Capacity Building
RECOMMENDATIONS (continued):  Commission research to find a way of merging science and tradition in a single body of management information.  Until First Nations have full in-house skill compliments needed to use management information, they should be funded to support the expertise they need.

Capacity Building
RECOMMENDATIONS (Continued):  If information sharing is as important as all parties say, a new assault should be made to resolve conflicts about confidentiality and appropriate use. Realistic information sharing can then begin.  A strategic plan for the development of in-house data management skills and technology should be created and implemented as soon as possible.  An education strategy should be put in place leading to qualifications and certification in land and resource data production.

Political Accords

Political Accords
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Leadership Accord – Summit, UBCIC, BCAFN (signed March 17, 2005) A First Nations - Federal Crown Political Accord on the Recognition and Implementation of First Nation Governments (signed May 31, 2005) New Relationship Accord (adopted May 2005) Transformative Change Accord (signed November 26, 2005) Kelowna “Accord” (Press Release & FMM Final Documents - November 26, 2005)

2009 – Where to From Here?

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