Russ Diabo, "Putting Our Own House in Order: At the Crossroads to Oblivion"

Republished from First Nations Strategic Bulletin, Vol. 17, Issues 1-6, January-June,  2019.

 Before my friend and brother, the late Arthur Manuel, passed onto the Spirit World, he finished writing his second book, “ The Reconciliation Manifesto,” which I highly recommend for people to read, Indigenous and non-Indigenous alike.

 In his book, Art Manuel explains why Indigenous First Nation Peoples should stop depending on Indian Act Chiefs and Councils to negotiate with the federal and provincial governments to “ recognize” and define our Treaty and Inherent Title & Rights, and be directly involved in community and Indigenous Nation decisions that involve Treaty and Inherent Title & Rights. To do this we must “ put our own house in order,” as Art Manuel explains.

 In Art Manuel’s book, there is a section called “ Putting Our Own House in Order,” and this article is based on that section, and the chapters in that section.

A key point Art Manuel makes in this section of his book is that “ establishment organizations” and “ leaders” are leading us into “ oblivion”!

I have been trying to communicate this point, but Art Manuel makes it crystal clear in his following comments:

"The recent government moves to “reconcile” our title and rights to Canada’s needs and desires are yet another attempt to orchestrate us into oblivion. Yet our organizations are nowhere to be seen in this battle that is essential to our future.

 In fact, they seem to be vaguely nodding their approval to government attacks on our rights.

It is ridiculous to interpret Section 35, which says that the federal and provincial government recognize and affirm existing Aboriginal and treaty rights, to mean we must reconcile those rights out of existence, subsuming them within federal and provincial government powers. Section 35 is in the Constitution to protect our Aboriginal and treaty rights. That is why it was put there and that is what is says. But the new government interpretation of the Supreme Court of Canada decisions is that Section 35 means that we are supposed to give up our Aboriginal rights to validate Canada, and we must agree that, according to their “legal reconciliation technique,” our Section 35 rights cannot override the modern treaty [or self-government agreement].

I have not heard any of our establishment organizations speak out against this policy, which remains the policy of the Trudeau gover ment’s Indigenous and Northern Affairs. Forty years ago, they would not have considered even suggesting that kind of genocidal policy for Indigenous peoples. My father told me that we need to be very careful about getting a white man’s education, because after you get it you need to retrain yourself back into your Indigenous thinking. Our leader- ship seems to have absorbed not only white man’s learning but their values as well. And in the process they have forgotten who they are.

 We cannot let the government-paid leadership or even the chiefs decide on the future of our land. People must have a direct voice and they must let the chiefs know that they cannot deal away our future behind closed doors."

Background

 In order to understand what Art Manuel means by the current Trudeau government’s section 35 “ legal reconciliation technique,” we need to review some hist ry, because this is at the core of what is happening across Canada.

 There are secret negotiation tables with Indian Act Chiefs & Councils and the federal government—and provincial governments are included in the negotiations where their constitutional jurisdiction may be affected—to define, limit and convert existing section 35 Aboriginal and Treaty rights by getting Indigenous Peoples to consent to surrendering existing rights for lesser, modern rights as 4th level ethnic, municipal type governments. As the federal government puts it, “this work is part of the unfinished business of Confederation.”

Thus, the provinces are involved because of the division of powers between the federal and provincial governments set out in Canada’s first constitution, the British North America Act, now called the Constitution Act 1867, where the federal government was given the “ exclusive legislative authority” by the British Parliament for “ Indians and the lands reserved for the Indians” and then Canada’s Parliament subsequently passed the Indian Act in 1876 using this delegated constitutional authority.

Now there is a new constitution, the Constitution Act 1982, that has section 35, which “ recognizes and affirms the existing aboriginal and treaty rights of Aboriginal Peoples”.

After this new constitution became law in 1982, there were a series of First Min- isters’ Conferences (FMC’s) on Aboriginal Matters in the 1980’s to define the section 35 Aboriginal and Treaty rights, but these constitutional talks ended in failure and in the 1990’s, the Canadian courts took over defining, limiting and containing section 35 rights.

During the 1980’s FMC’s, in 1983, section 35 was amended to include a provision saying “ For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.”

This 1983 constitutional amendment to section 35 elevated the federal government’s comprehensive “ land claims” policy—which requires putting the burden of proof onto Indigenous Peoples—into constitutional law, creating a new category of post-1975 “ Modern Treaties” all based on extinguishment of Aboriginal Title in exchange for some “ lesser benefits”, as well as other federal pre-conditions to negotiations.

Whether Self-Government is an Inherent right or a “ conditional right” dependent on reaching agreements with Crown governments, was the key issue in the failed 1980’s constitutional talks has still not been accepted as a section 35 Aboriginal Right by the federal government or the Supreme Court of Canada, which in violation of international law, continues to base its court decisions about Indigenous rights vs. Crown asserted sovereignty on the racist, colonial, genocidal Christian Doctrine of Discovery.

In 1995, the federal government led by Mr. White Paper, Prime Minister Jean Chretien, imposed an ‘Inherent Right’ to self-government municipalization policy, which hundreds of Indian Act Chiefs and Councils are currently funded to negotiate under (and which, through final self-government agreements, some have compromised under).

The federal comprehensive land claims and so-called ‘Inherent Right’ policies and resulting agreements are the main policies and agreements the federal government is using as templates for ALL Indigenous Peoples to interpret the UN Declaration on the Rights of Indigenous Peoples ( UNDRIP) and to assert that section 35 is a “ full box” of rights!

Negotiating under these comprehensive land claims and self-government policies require consent to the federal pre-conditions to negotiations, as I’ve already pointed out in this article.

In 2017, the current Trudeau government unilaterally issued 10 Principles respecting the Government of Canada's relationship with Indigenous peoples, which are basically a restatement of previous federal pre-conditions to negotiating modern comprehensive land claims & self-government agreements and are listed here:

· Extinguishment (modification) of Aboriginal Title;

· Legal release of Crown liability for past violations of Aboriginal Title & Rights;

· Elimination of Indian Reserves by accepting lands as private property (fee simple);

· Removing on-reserve tax exemptions;

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

· Acceptance of existing federal & provincial laws;

· Program funding on a formula basis being linked to “own source revenue” (code for paying ALL taxes) ;

 The Assembly of First Nations never provided any public analysis of the federal 10 Principles, which are now used in policy, legislation and negotiations with Indigenous Peoples, including Indian Act Bands and Band Councils.

During the Harper regime, in 2012, I defined Termination as:

"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 of their Inherent, Aboriginal and Treaty Rights."

In my opinion, other than style, and stealing our words to trick us, the current Tru- deau government is continuing—as Prime Minister Harper did—with a federal termination plan inspired by Pierre Elliot Trudeau’s 1969 White Paper on Indian Policy from 50 years ago, the Anniversary just passed on June 25, 2019.

White Paper 2.0

 Just in time for the 50th White Paper Anniversary, the Parliamentary recess and probably until after the federal election in October, on May 21, 2019, the current Trudeau government selectively released a Draft Directive for Federal Officials on the Recognition and implementation of indigenous Rights (Federal Directive). [see page 12 of this Bulletin]

It doesn’t really matter if this Federal Directive is official or draft, the Federal Directive illustrates the federal thinking about what Art Manuel calls the “ legal re- conciliation technique” and bears critical reading to decode the Special Words And Tactics ( SWAT) strategy.

The first point to make regarding the Federal Directive, is that “ reconciliation and recognition” of Indigenous rights are extremely qualified by the following paragraph, because the federal government already interprets these documents to its advantage:

This direction and guidance is meant to be read in con- junction with Canada's Constitution; the United Nations Declaration on the Rights of indigenous Peoples, and, the Principles Respecting the Government of Ca- nada's Relationship with indigenous Peoples. lt complements other guidance provided to federal officials including the Cabinet Directive on the Federal Approach to Modern Treaty lmplementation and the Attorney General of Canada's Directive on Civil Litigation lnvolving lndigenous Peoples. [emphasis added]

The Directive also consolidates approaches adopted by the Government of Canada in recent years .

The Federal Directive also maintains the pan-Indigenous approach of the current Trudeau government in relations with Indigenous Peoples (First Nations, Inuit & Metis), as was set out in the Recognition and Implementation of Indigenous Rights Framework announced by Prime Minister Justin Trudeau in the House of Commons on February 14, 2018, which in my opinion waters down First Nation rights.

The second point to make about the Federal Directive is that it makes a distinction between “ discussions” and “ negotiations” in this sentence:

Federal officials will need to reflect these objectives in their practices at discussion and negotiation tables.

So to me this clarifies that the “ recognition tables” appear to be non-binding dis- cussion tables until a negotiation mandate is “ co-developed” with Crown govern- ment representatives who have an unwritten veto because the Federal Directive requires all federal representatives to:

[e] nsure that a co-developed mandate reflects the inter- ests of all parties through open and transparent discussion of issues. [emphasis added]

Therefore, “ negotiations” with federal and/or provincial governments about “ reconciliation and recognition” of Indigenous rights are still based on federal preconditions in negotiation of 1) “ Modern Treaties ”; 2) self-government agreements; or 3) alternative federal legislation, ALL three federally directed paths, which a majority of Chiefs have accepted to negotiate under, amount to a surrender of existing Indigenous Peoples’ rights to the Crown’s asserted sovereignty and territorial integrity, meaning Termination!

This is why I coined the phrases “ Termination Tables” and “ Termination Table Chief”!

It is at these “ Termination Tables” where the Crown’s preconditions are consented to by Indian Act Chiefs and Councils in proposed “ Termination Agreements.

It is only then the people are asked to vote YES or NO in a referendum on a proposed “ Modern Treaty” or “ Self-Government” agreement, or acceptance of federally legislated property and tax regimes after the terms and conditions have been agreed to by Chiefs, Councils, their lawyers and advisors.

The YES side is always well funded by the federal government and provided with legal and advisory support while the NO side gets no funding. We can see the results across the country with more and more Indian Act Bands signing onto “ Termination Agreements” and approvals of Land Management and Tax Codes over their former reserves under federal legislation!

The “ First Nations Land Management Code” is part of alternative federal legislation to “ go beyond the Indian Act” as the federal government puts it and Chiefs and Councils get to decide (without the people) through a Band Council Resolution, whether or not to “ opt out” of the Indian Act into, for example, the First Nations Land Management Act or the First Nations Fiscal Management Act.

The People’s Voice & Decision-Making About Land Rights & Self-Determination

For the people to be directly involved in decision-making involving Treaty and Inherent Title & Rights, as Art Manuel rightly says is a requirement, the people need to be INFORMED. This is a key part of the UN Declaration on the Rights of Indigenous Peoples ( UNDRIP) minimum standard where the Free, Prior, INFORMED, Consent of Indigenous Peoples is required when Indigenous lands territories and resources are involved.

If our First Nations are to really and truly decolonize, we expect not only the Crown governments to implement the minimum standards contained in the Unit- ed Nations Declaration. Our Chiefs and Councils also need to respect our Indigenous Peoples’ right of self-determination!

The United Nations Declaration on the Rights of Indigenous Peoples states:

 Article 18

 Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision- making institutions. [emphasis added]

  Indian “ bands” and “ band councils” are NOTindigenous decision-making institutions,” they are colonial institutions imposed by the government of Canada through its racist, colonial Indian Act under its Constitution Act 1867.

 In my opinion, Indigenous First Nation Peoples, where their traditional or hereditary systems of government are asleep or dormant, should be re-established as their original decision-making systems exercising modern legislative, executive and judicial roles outside of the racist, colonial Indian Act system.

 Under the traditional/hereditary governance systems led by the People, the Indi- an Act Chief and Council elective system and band office can become an administrative body taking direction and receiving mandates from the original Indigenous authority, the rights holders, the People!

 How this is done locally, regionally and within each Indigenous Nation needs to be discussed widely across Canada.

 What is certain, is that by standing together and developing an Indigenous agenda based on our rights as set out under international law, we can advance our people much further than by passively accepting the federal government’s watered down and self-serving version of our rights that the current AFN leadership seems prepared to accept.

 We are told by governments, and too often by our own leadership, that there is no alternative to the cookie-cutter surrender of lands and resources provided at the existing government negotiation tables. The fact is, we do have another course of action, one that is supported by the International laws that recognize all peoples right of self-determination.

 My vision is to see First Nations protecting their traditional lands and waters by developing and implementing their own Self-Determination Plans for Community Development and Nationhood based on restoration of stolen lands, territories and resources, or restitution where lands and resources aren’t returned.

 I believe all Indigenous Nations need to build the foundation of their Nationhood and Free, Prior, INFORMED, Consent, before they sit down with the government to begin true nation-to-nation negotiations.

 In preparation for serious negotiations or engagement in international human rights complaints or processes, there is an essential check-list to follow for Indigenous communities AND Nations research holdings for strategy, planning and negotiation support.

Planning for Nationhood—An Indigenous Checklist:

 Assessing History, Language, Culture and Indigenous Law - Know your First Nation history, language, culture, customs, practices, laws and the treatment of your peoples by successive Crown governments (both oral & archival) and connection to your territory, lands & resources. This is important to show evidence when exercising rights and/or responding to challenges from Crown governments/Industry regarding their current or planned projects/activities on your traditional lands.

 Assessing Collection of Information/Evidence - For decision-making and negotiations support regarding traditional territories, First Nations historical substantiation & documentation needs to be combined with contemporary land & re- source management information; 1) Resource models & inventories, 2) Obstacles from legislative/regulatory/governance frameworks 3) List of third parties operating without consent on First Nations traditional territory, 4) Identification of alienated lands vs. less encumbered lands.

 Valuation of Lands & Resources for Sustainable Development - identify some criteria and provide some parameters for attaching a value (or range of values) to Aboriginal Title/Historic Treaty lands & resources in Canada. Also estimate the value of resources taken out of Aboriginal Title/Historic Treaty lands annually (ie., timber, minerals, hydro, fish & wildlife, etc.). Assess National, Provincial and Corporate accounting practises, assess the impact the reality Aboriginal Title/Treaty Rights have on the balance books of major resource extraction companies. The existence of Aboriginal Title/Treaty Rights as a legal interest stands to affect corporate security of tenure, supply, stock valuation, cost of borrowing, etc. Also identify issues Re: World Trade Organization/North American Free Trade Agreement rules & hidden subsidies/unfair competition, etc.

 Assessing Negotiation/Litigation Readiness/Support - 1) Knowledge of Canadian constitutional & international legal/policy frameworks of Indigenous, Aboriginal, Treaty & Human Rights and legal counsel, 2) an information database (historical & resource management) to draw from during negotiations 3) access to an interdisciplinary team of advisors (in-house or consultants) for Indigenous Leadership/Peoples and 4) identification of sources of sustained funding, 5) Preparation of litigation and/or international strategies as options.

 I believe those Indigenous communities AND Nations who follow this Indigenous Nationhood Checklist will have a better chance of surviving as distinct, organized Indigenous societies and Nations!

 Those that don’t follow the Indigenous Nationhood Checklist will likely become 4th level ethnic municipalities and Indigenous-Canadians and be obliterated, meaning disappear, as Art Manuel has said so eloquently, regardless of which Party wins the next federal election, or the election after that!

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