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Idling Some More

The Assembly of First Nations and hundreds of chiefs capitulate to Harper’s "termination plan"

by Russell Diabo

Assembly of First Nations National Chief Shawn Atleo and Prime Minister Harper at the Crown-AFN Summit in January, 2012.
Assembly of First Nations National Chief Shawn Atleo and Prime Minister Harper at the Crown-AFN Summit in January, 2012.

As I wrote in my last newsletter (FNSB Vol. 10, Issues 7-10) on September 4, 2012, Prime Minister Harper launched three new policy measures intended to speed up Canada’s longstanding Plan to Terminate First Nations Inherent, Aboriginal and Treaty rights.

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 (through modification) of their Inherent, Aboriginal and Treaty Rights.

Canada’s Termination Plan was ramped up on September 4, 2012, through these three policy measures among other federal initiatives, including:

· 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.  

· First Nation Band and Tribal Council funding for advisory services will be eliminated over the next two years.

· A “results based” approach to negotiating Modern Treaties and Self-Government Agreements. There was an internal federal assessment process that ended on March 31, 2013, of 93 negotiation tables, involving 403 Indian Bands/Non-Status/Metis with a combined population of 331,945, 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 were deemed not in agreement with Canada’s “core mandates,” the process was to end as the federal government withdrew negotiations and funding to the “unproductive table”.

NOTE: Since all 93 of these Termination Tables are still listed on the AANDC website as of the end of September 2013, one can only assume all of the listed negotiation tables have agreed to accept the Harper government’s core negotiating Comprehensive Claims/Self-Government mandates and desired results, which are comprised of the following key tenets:

· Accept the extinguishment (modification) of Aboriginal Title;

· Accept the legal release of Crown liability for past violations of Aboriginal Title & Rights;

· Accept elimination of Indian Reserves by accepting lands in fee simple;

· Accept removing on-reserve tax exemptions;

· Respect existing Private Lands/Third Party Interests (and therefore alienation of Aboriginal Title territory without compensation);

· Accept (to be assimilated into) existing federal & provincial orders of government;

· Accept application of Canadian Charter of Rights & Freedoms over governance & institutions in all matters;

· Accept Funding on a formula basis being linked to own source revenue;

Other measures too, essentially accepting to become Aboriginal municipalities. [Adapted from Federal Powerpoint entitled “Results Based Approach to Canada’s Participation in Treaty and Self-Government Negotiations - Engagement Process] 

On top of the internal federal assessment of the willingness of negotiation tables to agree to the federal Termination Plan and the spending cuts to First Nation organizations and bands, the Harper government has used its majority in Parliament and the Senate to pass these Bills:

· Bill C-27: First Nations Financial Transparency Act [Forces public release of consolidated audits, including payments to Chiefs/Councillors & band’s own source revenues to business competitors & gives more powers to AANDC Minister]

· Bill C-45: Jobs and Growth Act, 2012 [Omnibus Bill includes Indian Act amendments relaxing procedures for voting on-reserve lands surrenders to facilitate on-Reserve commercial developments. Also amended Navigable Waters & Fisheries Acts weakening federal oversight and environmental protections] 

· Bill S-2: Family Homes on Reserves and Matrimonial Interests or Rights Act [Imposes provincial matrimonial/land management laws on-Reserve unless/until band laws replace provincial law, costing extra money for bands & many bands don’t have extra money due to funding caps & cuts. Doesn’t address related issues of housing shortages, family violence and the need for community-based dispute resolution mechanisms]

· Bill S-8: Safe Drinking Water for First Nations [ Act [Creates regulations regarding First Nations drinking water, but not the capacity to comply]

These new federal laws were all drafted as part of the Harper government’s plan to gradually eliminate status Indians by advancing the Conservative ideology of promoting individual rights to undermine collective or group rights, rather than encouraging a balance between individual and collective rights.

Another longstanding federal policy objective is the gradual elimination of Indian Reserves by converting Reserve lands into fee simple (private) lands for eventual inclusion into the provincial land tenure system. So relaxing the Reserve land surrender requirements, expanding the application of the First Nations Land Management Act , to dozens of bands—an interim step towards converting Reserve lands into fee simple (private) lands—and imposing provincial laws on Reserve for matrimonial real property are all part of the federal government’s First Nations Termination Plan.

Prorogation of Parliament & Announcement of Harper’s Remaining Priorities

On September 13, 2013, the Governor-General Prorogued (suspended) Parliament at Prime Minister Harper’s request. This delay in the resumption of Parliament allows time for the Harper government to prepare for the final two year phase of its mandate as a government.

For those of you who don’t know what prorogation means, the Parliament of Canada website explains the political implications:

The principal effect of ending a session by prorogation is to end business. All government bills that have not received Royal Assent prior to prorogation cease to exist; committee activity also ceases. Thus, no committee can sit after a prorogation. . . In order for government bills to be proceeded with in a new session, they must be reintroduced as new bills or they may be reinstated, if the House agrees to this. . . The Standing Orders provide for the automatic reinstatement of all items of Private Members' Business in a new session. Committee work may also be revived either by motion in the House, or in committee, depending upon the nature of the study. [emphasis added]

So as we can see from the above statement, Prime Minister Harper can use his majority in the House of Commons and the Senate to reintroduce and pass the Conservative’s First Nations Bills that didn’t pass before Prorogation.

It also seems that Rob Clarke’s private member’s Bill among others will be automatically reinstated in the new session of Parliament:

· Bill C-428: Indian Act Amendment and Replacement Act [Private Conservative MP’s Bill, but supported by Harper government. Amends provisions of the Indian Act including repealing provision which limit bylaw authority and require submission to the Minister before they can come into force; repeals provisions related to residential schools, and repeals provisions that give the Minister authority over the handling of wills and estates on reserves. Sets out in preamble a commitment to develop new legislation to replace the Indian Act and continuing work in “exploring creative options for the development of this new legislation in collaboration with the First Nations organizations that have demonstrated an interest in this work”. Establishes a requirement for the Minister to report annually on efforts to replace sections of the Indian Act with modern amendments or legislation.] 

There will be a Throne Speech on October 16, 2013 setting out the Harper government’s priorities for the next two years, PM Harper has already publicly stated his top priority continues to be jobs and the economy, of course Canada’s economy is based upon lands and resources stolen from First Nations without compensation or benefit to them except through Canada’s Land Claims and Self-Government Termination Policies. 

Reportedly, the Throne Speech will include references to a First Nations Education Act and the First Nations Property Ownership (Conversion of Reserve Lands to Fee Simple) Act.  We will only know for sure on October 16th when the Throne Speech is read by the Governor-General.

In any event, Canada’s Termination Plan, which is reflected in federal policies, legislation and continued use of the Indian Act (with amendments) for maintaining Ottawa’s management and control system of First Nations, is being implemented without resistance or protest by those Chiefs and First Nation leaders in federal negotiations—including AFN National Chief Shawn Atleo and the AFN Executive Committee.

Idle No More-Chief Theresa Spence Pressures & January 11th Meeting with PM

Idle No More is a social and political movement for environmental protection and advocacy for Indigenous rights, which was started by four women who held teach-ins in Saskatchewan last November 2012, and “tweeted” out the phrase that eventually caught fire across the nation and throughout the world. The teach-ins were about the threats posed by the Harper government’s omnibus Bills C-38 and C-45, which amended a number of federal laws that weakened environmental protections for waters and lands and affected Aboriginal and Treaty rights.

The Idle No More movement was boosted by the high profile pressure provided by the hunger strike and demands of Attawapiskat Chief Theresa Spence in December 2012 through to January 2013.

Chief Theresa Spence demanded that the Governor-General and Prime Minister call a national meeting of First Nation Chiefs/Leaders to discuss the non-fulfillment of the historic Treaties, pointing to her community as an example of federal neglect and Treaty breaches.

As a result of the Idle No More demands to stop the legislation and Chief Spence’s demands for a national meeting on Treaties In Canada, last winter, thousands of people - Aboriginal and non-Aboriginal - took up round dances in malls, rallies on the streets, and traffic slowdowns at international bridges, rail-lines, and border crossings.

On January 11, 2013, the national day of action called by Idle No More organizers culminated in a gathering of over 4,000 people outside of the Prime Minister’s Office (PMO) in Ottawa while inside the PMO, Prime Minister Harper was meeting with an AFN delegation of Chiefs/Leaders.

The PM-AFN meeting occurred because of the national and international media and public attention on the Idle No More rallies and demonstrations, as well as Chief Spence’s hunger strike and demands for a national meeting on Treaties and First Nation living conditions.

In the week preceding the January 11th meeting scheduled between the AFN and Prime Minister Harper, divisions spread among the Chiefs about whether or not to meet the PM, particularly after Attawapiskat Chief Theresa Spence—who was still on a hunger strike—stated that she would not attend the meeting with the PM because the Governor-General would not be in attendance, which was part of her original demand when she began her hunger strike.

Despite repeated requests from AFN representatives, the PM refused to include the Governor-General in the January 11th meeting. The Governor-General issued a press statement saying he would host the Treaty Chiefs at his residence after the scheduled meeting with the PM.

Chief Spence reacted at an AFN pre-meeting on January 10th by stating this was not what she requested, so she would not go to the meeting with the PM. Onion Lake Chief Wallace Fox got up to the microphone after Chief Spence made her position known to those assembled in the AFN pre-meeting and he pleaded for all of the Chiefs and AFN National Chief Shawn Atleo not to go to the meeting with the PM. A long procession of Chiefs and leaders formed around him, each proclaiming that they would not attend the PM meeting either. Even National Chief Atleo got up and made a passionate speech about First Nation rights, giving the impression he would not attend the PM meeting. However, National Chief Atleo never explicitly said in his speech that he would not attend the meeting with the PM.

On the morning of January 11, regional Chiefs’ caucuses were taking place while thousands of Idle No More participants were arriving in Ottawa for a planned demonstration outside of the PMO. Many Chiefs and leaders believed that everyone, leaders and people alike, would take part in the demonstration outside and boycott the PM meeting as many Chiefs and leaders had announced the night before, but word soon spread that National Chief Atleo, members of the AFN Executive Committee, and some other Chiefs and regional leaders were gathering at the AFN National Office to prepare a delegation to attend the meeting with the PM.

The PMO is located in the Langevin Building in Ottawa across from Parliament Hill. By the time of the 11 A.M. scheduled meeting with the PM, thousands of demonstrators had surrounded the Langevin Building and, feeling betrayed by the AFN delegation, were shouting criticisms at the members of the AFN delegation as they entered the PMO building.

In the end the First Nations representatives who attended the PM-AFN meeting were:

· National Chief Shawn A-in-chut Atleo

· BC Regional Chief Wilson Raybould

· AFNQL Regional Chief Ghislain Picard

· Yukon Regional Chief Mike Smith

· New Brunswick / PEI Regional Chief Augustine

· Grand Council of the Crees Grand Chief Matthew Coon Come

· Treaty 6 Grand Chief Craig Mackinaw, Ermineskin Cree Nation, AB

· Treaty 7 Grand Chief Charles Weaselhead, Blood Tribe

· Treaty 8 Grand Chief Roland Twinn, Sawridge First Nation, AB

· Chief Norma Johnstone, Mistawasis Cree Nation, SK

· Chief George Ginnish, Eel Ground First Nation, NB

· Chief Deborah Robinson, Acadia First Nation, NS

· Chief Marcel Head, Shoal Lake Cree Nation, SK

· Chief Terrance Paul, Membertou First Nation, NS

· Chief Leo Omani, Wahpeton Dakota Nation, SK

· Chief Douglas White, Snuneymuxw First Nation, BC

· Chief Eric Fairclough, Little Salmon Carmacks, Yukon

· AFN National Youth Council, Sasha Maracle

· Elder Bertha Commonda, Kitigan Zibi Anishinabeg Nation (now deceased)

 

Many of these First Nation representatives have ties to federal Termination Negotiation Tables a few even represent Modern Treaty groups. 

The federal representatives were:

· Prime Minister Stephen Harper

· Minister John Duncan, Aboriginal Affairs and Northern Development (AANDC)

· Minister Tony Clement, Secretary of the Treasury Board

· Minister Leona Aglukkaq, Health Canada

· Parliamentary Secretary Greg Rickford

· Deputy Minister AANDC Michael Wernick

· Associate Secretary to the Cabinet and Deputy Minister Intergovernmental Affairs, Janice Charette

· A/Deputy Secretary, Social Affairs, PCO, Meena Ballantyne

· Deputy Minister Natural Resources Canada, Serge Dupont

· Deputy Minister Human Resources and Skills Development Canada, Ian Shugart

 

The AFN went into the meeting with an 8 point position, which was:

1. Commitment to an immediate high level working process with Treaty Nation leadership for establishing frameworks with necessary mandates for the implementation and enforcement of Treaties on a Treaty by Treaty basis, between the Treaty parties Nation-to-Nation.

2. Facilitating fair, expeditious resolution of land claims through reforming the comprehensive claims policy based on recognition and affirmation of inherent rights rather than extinguishment.

3. Resource Equity, Benefit and Revenue Sharing building on treaty implementation and enforcement andcomprehensive claims resolution there must be a framework that addresses shared governance of resource development and the fair sharing of all forms of revenues and benefits generated from resource development.

4. All legislation must be unquestionably consistent with s.35 of the Canadian Constitution and the UNDRIP. Legislation and provisions of legislation as in C-38 and C-45 that contravene our Treaty and inherent rights must be reconsidered and implementation of these provisions be put to a halt. We must have an environmental regulatory regime in this country that respects our rights. Legislation that tinkers around the edges of the Indian Act must stop and be replaced with support for First Nation government and nation re-building including a mechanism for our Nations to push away from the Indian Act as they determine. To fulfill the original relationship, Canada must put in place an ongoing process that all new bills and policies of the federal government must be in full compliance with section 35 and consistent with international human rights standards.

5. Fundamentally transformed fiscal relationship guaranteeing fairness and sustainability and removing all arbitrary caps and burdens on the current inefficient, ineffective and unfair funding relationship for First Nation programs and services.

6. Immediate Commitment to the establishment of a National Public Commission of Inquiry on Violence Against Indigenous Women and Girls, including special focus on murdered and missing Indigenous women, and the broader factors that lead to increased vulnerability among Indigenous peoples.

7. A guarantee, as in Shannen’s Dream, of First Nation schools in every First Nation that each and every First Nations parent and child can be proud of, that fully reflects our languages and cultures and provides a safe and supportive place to learn.

8. In order to be effective, progress on these areas will require fundamental change in the machinery of government including direct political oversight, a dedicated Cabinet Committee with a secretariat within the Privy Council Office with specific responsibility for the First Nation-Crown relationship to oversee implementation.

Prime Minister Harper rejected all of the points except the establishment of a high level process on historic Treaties and Comprehensive Claims Policy. The AFN accepted this outcome.

Following the January 11th PM-AFN meeting, on January 23, 2013, CBC reported that Attawapiskat Chief Theresa Spence “decided to end her six-week-long hunger strike after members of the Assembly of First Nations and the Liberal and New Democrat caucuses agreed to back a list of commitments supporting aboriginal issues.

The declaration lists 13 commitments:

· An immediate meeting between the Crown, the federal and provincial governments, and all First Nations to discuss treaty and non-treaty-related relationships.

· Clear work plans and timelines, and a demand that the housing crisis within First Nations communities be considered as a short-term immediate action.

· Frameworks and mandates for implementation and enforcement of treaties on a nation-to-nation basis.

· Reforming and modifying a land-claims policy.

· A commitment towards resource revenue sharing, requiring the participation of provinces and territories.

· A commitment towards sustained environmental oversight over First Nations lands.

· A review of Bill C-38 and C-45 to ensure consistency with constitutional requirements about consultation with aboriginal peoples.

· Ensure that all federal legislation has the consent of First Nations where inherent and Treaty rights are affected.

· The removal of funding caps and the indexing of payments made to First Nations.

· An inquiry into violence against indigenous women.

· Equity in capital construction of First Nation schools and additional funding support for First Nation languages.

· A dedicated cabinet committee and secretariat within the Privy Council Office responsible for the First Nation-Crown relationship.

· Full implementation of the United Nations Declaration of the Rights of Indigenous Peoples.

With the end of Chief Spence’s hunger strike and the dropping off of Idle No More rallies and demonstrations, the media and public attention on the environmental and Indigenous issues moved to other issues of the day. The 13 point declaration of Chief Spence was also forgotten as weeks passed and spring arrived.

Harper’s Two Dirty SOC’s (Senior Oversight Committees) 

As summer began, AFN National Chief Shawn Atleo, BC Regional Vice-Chief Jody Wilson-Raybauld and Saskatchewan Regional Vice-Chief Perry Bellegarde began discussions with the Government of Canada regarding the “high level” processes on historic Treaties and Comprehensive Claims policy the Prime Minister promised during the January 11th PM-AFN meeting.

The historic Treaty Senior Oversight Committee has met with problems due to disagreements among Treaty Chiefs. A National Treaty Gathering was held at the Onion Lake Cree Nation on the same dates as the AFN Annual Assembly was held in Whitehorse, Yukon, friendly territory for National Chief Atleo.

Saskatchewan Regional Vice-Chief Perry Belllegarde recently told CBC Power and Politics host Evan Solomon, the Treaty SOC process has been delayed because AFN is waiting for the Prime Minister to write back with an agreement on the mandate of the Treaty SOC.

There are a significant number of Treaty Chiefs who continue to oppose AFN having anything to do with Treaty discussions with the government of Canada.

A delegation of Treaty Chiefs is going to England on the 250th anniversary of the Royal Proclamation of 1763. 

As for the Comprehensive Claims SOC process, AFN National Chief Shawn Atleo and BC Regional Vice-Chief Jody Wilson-Raybauld, assisted by AFN staffer Tonio Sadik, sidelined the members of the AFN Comprehensive Claims Policy Reform Working Group—which has been in place several years now with a mandate from the Chiefs-in-Assembly to seek changes to the policy—so they could negotiate a weak terms-of-reference between AFN and the government of Canada (PMO,PCO, AANDC & DOJ) to “review” the policy, as federal officials put it, though not necessarily to change it.

So far only those First Nation representatives who have agreed to compromise their Aboriginal Title and Rights by accepting to negotiate under Canada’s Comprehensive Claims & Self-Government Termination policies are at the Comprehensive Claims SOC table, except for UBCIC Grand Chief Stewart Phillip, whose organization now represents First Nations who are both in and out of the BC Treaty Extinguishment process.

The two “high level” Canada-AFN SOC processes really just turn the AFN representatives into junior advisors to the federal government. It is a return to the 1970’s when Prime Minister Pierre Trudeau and National Indian Brotherhood (NIB) President George Manuel agreed to establish a joint NIB-Canada Cabinet Committee. Shortly after its creation NIB President George Manuel withdrew from the joint cabinet committee when he saw it was only being used by PM Trudeau as a rubber stamp for federal policy.

Unfortunately, in my humble opinion, we do not have principled leaders like George Manuel representing us on these two dirty, one sided, SOC’s offered to us by Prime Minister Harper.

Conclusion

In my view the Idle No More movement has become Idle Some More because 100’s of Chiefs and First Nation leaders (402 bands/Non-Status/Metis) have capitulated to Canada’s core mandates in the negotiations at the 93 federal Termination Tables, which affects a total population of 331,945. Most of these people are status Indians who will have their legal and political status changed when final agreements are reached at these 93 Termination Tables.

Population Affected by Region

First Nations from each region of Canada are included in the Termination Negotiation Tables. The break down by region is as follows:

Prince Edward Island -                      1,100

Nova Scotia -                                           15,000

Newfoundland/Labrador -             5,200

New Brunswick -                                   14,000

Quebec -                                                   35,155

Ontario -                                                    124,600

Manitoba -                                               11,300

Saskatchewan -                                      17,450

Alberta -                                                    10,000

British Columbia -                                76,695

Northwest Territories -                                      15,995

Yukon -                                                       5,450

                                                      Total       331,945

These figures don’t include the populations of the Land Claims Agreement Coalition who have already compromised their pre-existing constitutional rights.

Whether you live on or off Reserve or in or out of your territory, as a member of a band at a Termination Table you will get to vote in a referendum to accept or reject an agreement-in-principle or a final agreement. These agreements once ratified will affect you and your future generations once and for all time.

It seems many First Nation peoples are Idling Some More because their Chiefs/leaders have capitulated to the government of Canada (and the provinces) and are now negotiating their terms of surrender to become essentially municipalities within Canada’s federation. Under these circumstances if the people want real change they will not only have to challenge the government of Canada but their own Chiefs/leaders as well.

To use a Star Trek metaphor, I guess most Chiefs/leaders believe “resistance is futile”. The question remains, do the people believe this too?

On October 7th, a National Day of Action called by Idle No More will demonstrate if the numbers of people are still there who want change in Canada for the environment and for Indigenous Peoples rights.

For a list of the 93 Termination Tables and bands participating in them go to this website:

http://www.aadnc-aandc.gc.ca/eng/1346782327802/1346782485058

 

Russell Diabo is Kahnawake Mohawk, an aboriginal policy analyst, a member of Defenders of the Land, and the editor of the First Nations Strategic Bulletin.


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