TRUDEAU GOVERNMENT’S NATIONAL “RECONCILIATION” PLAN TO COMPLETE CANADA’S COLONIZATION PROJECT: USING CHRETIEN’S “INHERENT RIGHT POLICY” AND LEGACY LEGISLATION

Russell Diabo*

Republished with author's permission from First Nation Strategic Bulletin, January-May 2022," reports.

To understand the current Trudeau Liberal government’s National Reconciliation Framework regarding Indigenous Peoples (First Nations, Metis, Inuit), one needs to understand the origins of the Liberal Party of Canada’s policy and legislative framework.

In June 1990, at the Liberal Leadership Convention held in Calgary, I was one of the people who had been involved in the process of preparing amendments to the Liberal Party of Canada’s constitution to create an Aboriginal People’s Commission, modeled on the existing Liberal Women’s and Youth Commissions, to present at the 1990 Liberal Convention for a vote by Liberal delegates.

The Liberal Party Convention easily adopted the amendments creating the Aboriginal People’s Commission (APC) of the Liberal Party of Canada, which was followed by an election by Aboriginal Liberal delegates attending the Liberal Convention to elect the founding APC Executive and I was elected as APC Vice-President of Policy, a position I held from 1990 until 1994, which was a turbulent time in Canada.

While the Liberal Convention was being held in Calgary, a constitutional amendment process to recognize Quebec’s 'distinct society' status called the Meech Lake Accord died when it failed to meet a required June 1990 ratification deadline, because Manitoba Cree MLA Elijah Harper refused to give consent in accordance with the procedures established in the Manitoba Legislature for proposed constitutional amendments, thus delaying introduction of the proposed Meech Lake Accord into the Manitoba Legislature and causing the ratification deadline to pass.

Following the failure of the Meech Lake Accord at the end of June, on July 11, 1990, in Quebec, a Sûreté du Quebec (SQ) SWAT Team was sent to enforce an injunction on a group of Mohawks from Kanehsatake who were camping in a stand of pines, blocking the expansion of a golf course from 9 to 18 holes, which would encroach on Mohawk lands that included a Mohawk

burial ground and involve cutting down a stand of pine trees over 100 years old for the expanded golf course.

A gunfight resulted in the Kanehsatake pines as Mohawk men tried to protect children and women from the SQ SWAT Team who were assaulting the area armed with automatic weapons and tear gas, when the gun fight ended that day, an SQ officer, Corporal Lemay, was found dead.

The men from Kanehsatake immediately contacted the men from Kahnawake who then blocked the Mercier Bridge in support of Kanehsatake. This July 11th firefight resulted in a 78 day stand-off between the Mohawk Nation at Kanehsatake, Kahnawake, the SQ and later the Canadian Army.

The cause of this conflict over a golf course expansion was the denial of Mohawk sovereignty and land rights by the governments of Quebec and Canada, as the Municipality of Oka obtained a court injunction to remove Mohawk Peoples from the Pines in Kanehsatake.

The issue of whether Aboriginal self-government is an Inherent right or a delegated right conditional on reaching agreements with Crown governments was the focus of constitutional talks in the 1980’s. These talks ended in failure in March 1987 without coming to an agreement on selfgovernment being ether an Inherent Right, or a conditional right dependent on reaching an agreement with federal and/or provincial governments.

In 1990, the Supreme Court of Canada started defining the meaning of Aboriginal and Treaty rights in section 35 of Canada’s new Constitution Act 1982, with its Sparrow decision involving Aboriginal fishing rights.

However, the Supreme Court of Canada has yet to rule on whether selfgovernment

is an existing Aboriginal right or a conditional right subject to Crown government regulation.

This was the situation in Canada in 1993, when as APC Vice-President of Policy I, along with others, were involved in the Liberal Party of Canada’s election platform development process in preparation for the 1993 federal election.

As the Aboriginal People’s Liberal Commission, we did an extensive process of consultation with Aboriginal Peoples organizations and governments in development of a platform on Aboriginal and Treaty issues.

Once we had an APC draft Aboriginal issues document prepared that we wanted included in the federal Liberal Party Platform, we had to engage with the Liberal leader Jean Chretien’s advisors and staff, who acted as a buffer for him. At first, the Liberal leader’s gatekeepers didn’t want Aboriginal issues included in the Liberal 1993 election platform. This was first articulated by Chaviva Hosek, Director of the Liberal Caucus Research Bureau, who was also Co-Chair of the Liberal Platform Committee, along with then M.P. Paul Martin. Chaviva Hosek said if we put Aboriginal Peoples’ issues in the platform, others like Italians or Greeks would want to be included too.

We pushed back that those ethnic groups don’t have rights included in the constitution as Aboriginal Peoples do. It was after that exchange that Chretien’s principal advisor, Eddie Goldenberg, got directly involved in discussions with us, who were the APC representatives.

On behalf of Jean Chretien, Eddie Goldenberg was overseeing the Liberal Platform development along with Chaviva Hosek, Paul Martin and Martin’s assistant, Terri O’Leary.

As APC representatives we pushed our way into the 1993 Liberal Platform Development Process, we weren’t invited.

As the Liberal Platform was being developed, we had several meetings on Parliament Hill where we were shown numbered draft copies of the Liberal Platform for discussion, which we had to return once the meetings were done.

Finally, after much tough debate occurring over weeks during the summer of 1993 with Chaviva Hosek, Eddie Goldenberg and others like Liberal MP’s such as Warren Allmand, we reached consensus on a short version of the Liberal Aboriginal Platform to be included in Chapter 7 of the Redbook, which was called “Creating Opportunity: The Liberal Plan for Canada”.

The Aboriginal issues we couldn’t get agreement on to include in the 1993 Redbook, we pushed hard to have included in a longer separate version of the Liberal Aboriginal Platform. We succeeded: on October 8, 1993, while on the campaign trail, Liberal Leader, Jean Chretien issued a press release announcing the longer Liberal Aboriginal Platform, in which he stated, that “the cornerstone of our approach will be the recognition of the inherent right to aboriginal self-government.”

Chretien’s promise was also included in the 1993 Liberal Redbook: “A

Liberal government will act on the premise that the inherent right of selfgovernment

is an existing Aboriginal and treaty right.”

However, in 1995, after winning a massive majority government in 1993, leaving the Conservative Party with only two seats in Parliament, Prime Minister Jean Chretien broke his promise to recognize the Inherent Right to self-government by adopting an “Aboriginal Self-Government” Policy, which recognizes the right in an abstract sense, but doesn’t recognize that any particular First Nation has the right on the ground.

In 1996, the Assembly of First Nations obtained a copy of a secret federal internal document prepared by the Department of Justice and Inherent Right Directorate, dated March 22, 1996. The document, entitled “Guidelines for Federal Self-Government Negotiators (Number 1) - language for Recognizing the Inherent Right of Self-Government in Agreements and Treaties”, proved the Liberal government’s “Inherent Right Policy” was merely a Liberal public relations tool.

The 1996 secret federal guidelines stated in part: This paper has two objectives: to help federal negotiators understand the legal and policy considerations surrounding recognition of the inherent right of self-government in a wide range of agreements and treaties with Aboriginal groups, and to provide them with approved recognition language for these agreements…negotiators should be aware of the legal and policy considerations surrounding the choice of recognition language, and of the type of recognition language deemed acceptable by the federal government.

In essence, the debate over how to recognize the inherent right centers around two broad approaches, which we refer to as the specific recognition and general recognition approaches. Specific recognition entails recognizing that a particular group of Aboriginal people have an inherent right ("Canada recognizes that First Nation •x· has an inherent right of self-government .. _"). General recognition involves recognizing that the inherent right is an existing right within the meaning of section 35 of the Constitution Act, 1982, without actually acknowledging that specific Aboriginal groups (i.e., the Aboriginal parties to the agreement) have an existing inherent right.

The general recognition model begins with a clear, and unambiguous statement recognizing that the inherent right of self-government is an existing right within the meaning of s.35 of the Constitution Act, 1982. Under this approach, recognition of the inherent right is explicit, but we remain agnostic as to which groups actually have such a right.

The document goes on to list federally approved language for clauses to be used in “specific” recognition of the “Inherent Right” of selfgovernment in Framework Agreements, Agreements-in-Principle or Final Agreements.

Also obtained by AFN in 1996 was a secret document prepared by the federal Inherent Right Directorate and Department of Justice, dated March 15, 1996, entitled “Guidelines for Federal Self-Government Negotiators (Number 2) - How to Deal with Requests for Recognition as "Distinct People(s)"”.

The document states in part:

Negotiators will be faced with requests from aboriginal groups to include language in agreements recognizing them as "a distinct peoples" or as "distinct peoples". Recognition ma[y] also be sought as "people" or "peoples" without the accompanying adjective "distinct". All of these formulations raise similar problems/issues from the federal perspective.

1. Use of "people(s)" by itself without further qualification has potential implications related to the international right of self-determination, a right traditionally considered akin to the right of a sovereign state. Officials have no authority to use this language in agreements, whether binding or otherwise, since it may raise implications vis-à-vis the right of self-determination at international law…The word "peoples" found in s.35 of the Constitution Act, 1982 ("the aboriginal peoples of Canada" - is clearly set within the context of the Canadian constitutional framework and therefore does not have implications related to selfdetermination.

Nonetheless, use of the expression "the aboriginal peoples of Canada" in negotiated agreements should still be approached with care…Characterizing any sub-group as one of "the aboriginal peoples of Canada" could be problematic in that it may give credence to a claim by a specific group to an aboriginal or treaty right(s) not otherwise maintainable at law.

2. Use of the term "distinct people(s)" raises other considerations. While a good argument can be made that Indian people (and even perhaps. for example, the Anishnaabe) are a distinct group, the more larger the collectivity is sub-divided the less likely it is that distinctiveness can be demonstrated… References to sub-groups as distinct entities may raise questions related to which groups are holders of aboriginal and/or treaty rights.

3. Use of the term "distinct people(s)" or "distinct status" has implications in the Canadian unity

context where "distinct society" and other related terms are under debate.

The document goes on to list 3 options regarding use of the terms “peoples”, “distinct People(s)” or “distinct status” in agreements: 1) The first preference is to avoid such language in negotiated agreements; 2) Before agreement is reached on any specific formulation, language must be approved by PCO and Justice. Negotiators should, therefore, not sign off until the wording has been reviewed; 3) If the negotiating context makes resort to Option 1 or Option 2 impossible, a formulation that links "distinct" and "peoples"/"status"/"society") will be acceptable provided it is absolutely clear that the assertion is not indicative of the position of the Government of Canada. Option 3 “is the least preferred option.”

While the Chretien government’s Minister of Indian Affairs, Ron Irwin, was imposing the 1995 “Inherent Right Policy” across Canada, onFebruary 12, 1996, Irwin signed a Framework Agreement on First Nation Land Management with 13 First Nations, which was later ratified in 1999 by the First Nations Land Management Act, allowing the First Nations to opt out of the Indian Act into another federal law for regulating First Nations land management.

In 1996, Ron Irwin also began an Indian Act amendment process, which was not contemplated in the 1993 Liberal Aboriginal Platform.

It is my opinion, based on my interactions with Chretien while APC Vice-President of Policy, that this idea of amending the Indian Act came from Chretien himself, who stubbornly refused to accept the 1969 White Paper was rejected by anybody other than First Nations—certainly not the Canadian public.

This is not just my opinion, former APC Co-Chair, David Nahwegahbow, recalls when in 1994, he, Marilyn Buffalo, Elder Pete Waskahat from Frog Lake, Alberta and myself, met with Prime Minister Jean Chretien in his office on Centre Block:

I also recall one instance in which the Aboriginal Peoples Commission put forward a motion to the Liberal Policy Convention in 1994, to the effect that the Party was disavowing the 1969 White Paper. We were summoned to Mr. Chrétien’s office and chastised for putting forward such a resolution. Chrétien and Goldenberg tried to intimidate us into withdrawing the motion, but we refused.

Following this exchange with Prime Minister Chretien, in 1996, AFN National Chief Ovide Mercredi, retained me to advise AFN on the federal Indian Act Amendments legislative process, as the Indian Act Amendments Coordinator.

Our AFN Team analyzed the proposed Indian Act amendment package and recommended that First Nations reject it, because our conclusion was that Minister Irwin’s amended version of the Indian Act was worse than the status quo. It would have led to more, not less, control of the federal bureaucracy over First Nation governments.

AFN Chiefs-in-Assembly agreed with our analysis, and we began an AFN campaign to stop Minister Irwin’s proposed Bill C-79, the Indian Act Optional Modification Act, which had many amendments to the Indian Act, and despite their so-called “Inherent Right Policy”, Bill C-79 had a key clause to convert Indian Bands into federal municipal corporations with “natural person powers”:

Legal capacity of bands - 16.1 A band has the capacity and, subject to this Act, the rights, powers and privileges of a natural person.

What are “Natural Person Powers”?

Natural person powers give municipalities similar flexibility to that of individuals and corporations in managing their organizational and administrative affairs without the need for more specific legislative authority. SOURCE: Ontario Ministry of Municipal Affairs and Housing Self-government is negotiated within the Canadian constitutional framework and federal legislation is passed before the negotiated agreement takes effect… Under self-government, Indigenous laws operate in harmony with federal and provincial laws.

Indigenous laws protecting culture and language generally take priority if there is a conflict among laws…However, the Canadian Charter of Rights and Freedoms, the Canadian Human Rights Act and other general laws such as the Criminal Code continue to apply”.

SOURCE:

CIRNAC Self-Government Website

With the help of the Bloc Quebecois and NDP parties we were able to slow Bill C-79 down in the Standing Committee on Aboriginal Peoples until the summer of 1997, when Parliament recessed and a federal election was called, causing Bill C-79 to die on the Parliamentary Order Paper.

The Chretien Liberal government was re-elected in June 1997, with a new Minister of Indian Affairs, Jane Stewart, who saw the 1999 First Nations Land Management Act pass into law.

In 2000, another federal Liberal government was re-elected and a suite of federal-First Nations legislation was introduced as part of Jean Chretien’s legacy as he prepared to retire from politics, believing he had solved another perennial Canadian problem. The “Indian problem”.

To this end, it was in 2000 that Chretien’s then Minister of Indian Affairs, Bob Nault, began discussions on a key part of Chretien’s legacy legislation—Bill C-7, the First Nations Governance Act, which recycled much of what Bill C-79, the Indian Act Optional Modification Act proposed, including the key clause to convert First Nation governments into municipal corporations:

“Legal Capacity, Capacity, rights, powers and privileges - 15. (1) A band has the legal capacity, rights, powers and privileges of a natural person”.

Again, with the help of the NDP and Bloc Quebecois parties First Nations were able to delay Bill C-7 in the Standing Committee on Aboriginal Peoples long enough for Jean Chretien to announce his retirement from politics and Bill C-7 died like Bill C-79 did.

Also included in Chretien’s legacy suite of legislation was the “Specific Claims Resolution Act”, which passed in 2002, but was never implemented and was subsequently replaced years later.

However, also part of Chretien’s legacy legislation was the First Nations Fiscal and Statistical Management Act, to create national fiscal institutions for off-loading ongoing federal Treaty and fiduciary obliga-tions and assimilating First Nations into Canada’s tax system. AFN had rejected Bill C-19, because it was tied to the First Nations Governance Act.

The First Nations Fiscal and Statistical Management Act was introduced into the House of Commons as Bill C-19, An Act to provide for real property taxation powers of First Nations, to create a First Nations Tax Commission, First Nations Financial Management Board, First Nations Finance Authority and First Nations Statistical Institute and to make consequential amendments to other Acts, by then Minister of Indian Affairs, Bob Nault, under Prime Minister Chretien, but it was stalled until September 2003, and in the fall of 2003, Bill C-19 did not make it to House of Commons Report Stage as it fell off the Liberals’ radar as Jean Chretien prepared to leave politics.

In December 2003, Paul Martin became the new Liberal Leader and Prime Minister of Canada. Prime Minister Martin named as his new Minister of Indian Affairs, Andy Mitchell, who in March 2004 reintroduced part of Chretien’s legacy legislation, the First Nations Fiscalcand Statistical Management Act, as Bill C-23, which also stalled in the House of Commons.

In November 2004, the Liberal government under Prime Minister Paul Martin re-introduced Chretien’s legacy Bill (formerly Bill C-19 and C-23), for a third time in the House of Commons as Bill C-20, the First Nations Fiscal and Statistical Management Act.

The Liberal government succeeding in getting all Party support to push Bill C-20 through the House of Commons before the House recessed for the Christmas break. Even the so-called “progressive” New Democratic Party (NDP) voted with the Liberals, as their Aboriginal Affairs critic, MP Pat Martin (Winnipeg Centre), accepted the Liberal line that the new amendments would make Bill C-20 “optional” for First Nations.

Bill C-20, the First Nations Fiscal and Statistical Management Act received Royal Assent on March 23, 2005, and in 2022, we can see that these national institutions created by the federal law are not “optional”. For Indian Bands to be eligible for the current Trudeau government’s 10-year funding grants, a Band has to be certified by the First Nations Financial Management Board.

Chretien’s legacy legislation (First Nations Land Management Act & First Nations Fiscal Management Act) has also been used by successive Prime Ministers since Chretien up to current Prime Minister Justin Trudeau to assimilate Indians and Indian Bands into Canada’s property and tax systems.

However, unlike previous Prime Ministers, Justin Trudeau had a 2015 Liberal Indigenous Platform coupled with a star candidate, Jody Wilson-Raybould, whom Trudeau appointed as Justice Minister in his Cabinet, and who also helped—at least initially—sell the Liberal platform of “reconciliation” and a new “nation-to-nation” relationship to Indigenous Peoples (First Nations, Metis, Inuit).

In December 2015, Prime Minister Justin Trudeau announced a pan-Indigenous (First Nations, Metis, Inuit) Two-Track approach to Indigenous policy:

1) closing the socio-economic gap between Indigenous Peoples and non-Indigenous Canadians

[programs] (Indigenous Services Canada), and

2) making foundational changes to laws, policies and operational practices based on the federal recognition [definition] of rights to advance [federal interpretation of] self-determination and self-government.

[Inherent & Treaty Rights] (Crown-Indigenous Relations)

In May 2016, federal Justice Minister Jody Wilson-Raybould told a United Nations Forum that there “is a need for a national action plan in Canada, something our government has been referring to as a Reconciliation Framework”. Wilson-Raybould also told an AFN Chiefs’ Assembly in July 2016 that the UN Declaration on the Rights of Indigenous Peoples will be “will be articulated through the constitutional framework of section 35.”

In June 2017, a Canada-AFN Memorandum of Understanding on Joint Priorities was signed, essentially taking over the AFN as a “Permanent Bilateral Mechanism” of the federal Cabinet decision-making process. The Canada-AFN agreement on joint priorities committed the parties to the agreement to:

1) establishment of a permanent, ongoing Cabinet -level process for First Nations leadership and members of the federal Cabinet (“AFN-Canada Working Group”) to review progress on jointly set priorities; (co-development of an Indigenous Languages Act to support the preservation, revitalization and strengthening of Indigenous Languages [Bill C-91], work in partnership on measures to implement the United Nations Declaration on the Rights of Indigenous Peoples, including co-development of a national action plan and discussion of proposals for a federal legislative framework on implementation [Bill C-15], ongoing work to develop options for consideration by Chiefs-in-Assembly and federal decision-makers for a new fiscal relationship to ensure sufficient, predictable and sustained funding for First Nations governments [10-Year grants & self-government fiscal policy])

 2) to hold at least three meetings of the AFN-Canada Working Group per year, with one of these meetings to be chaired by the Prime Minister;

3) to establish a steering committee of senior officials to identify and establish requirements to support the AFN-Canada Working Group (work plan development, human resources, fiscal support, process and machinery of government requirements);

Following the signing of the Canada-AFN MOU on Joint Priorities on July 14, 2017, the Canadian federal government released its Principles respecting the Government of Canada's relationship with Indigenous peoples, which neither substantively nor procedurally meet international minimum standards. First of all, although purporting to relate to the relationship with Indigenous Peoples, the principles were unilaterally released by the Canadian federal government under Prime Minister Justin Trudeau and Justice Minister Jody Wilson-Raybould.

They did not engage with or consult, let alone seek the consent of Indigenous Peoples and

Nations as the proper Aboriginal and Treaty Rights Holders. Under international law, Indigenous Peoples are subjects of international law and the holders of internationally protected Indigenous rights.

Canada’s 10 Principles are a proxy for the federal definition of UNDRIP and shows Canada is trying to domesticate Indigenous Peoples and international law, in violation of international legal standards. Canada has been questioned by the UN Human Rights Committee about howthey implement the International Covenant on Civil and Political Rights (ICCPR) Article 1 on the right to self-determination in regard to Indigenous Peoples and in their response, Canada indicated that it was their position that Indigenous Peoples exercise their right to selfdetermination as Canadians and as part of Canadian society, not recognizing that Indigenous peoples have their own standing at international law.

Canada is not only trying to domesticate Indigenous Peoples, but also international law. At the UN Permanent Forum on Indigenous Issues in May 2016, then federal Minister of Indigenous Affairs and Northern Development, Carolyn Bennett, pretended to “announce on behalf of Canada that we are now a full supporter of the Declaration without qualification.”

Minister Bennett immediately contradicted this in the next sentence by adding a qualification: “We intend nothing less than to adopt and implement the declaration in accordance with the Canadian Constitution.” This clearly is a qualification, which goes back to the Constitution Act 1867. It further tries to qualify and subjugate international law to lesser national

standards. This is in violation of international law: national laws and policies should only be passed if they conform with international law and not vice versa.

On February 14, 2018, Prime Minister Justin Trudeau made a speech announcing his intention to conduct an engagement process with Indigenous Peoples, “provinces and territories, and non-Indigenous Canadians: people from civil society, from industry and the business community, and the public at large”, to introduce into Parliament a Rights Recognition Framework Bill, which was presented to an AFN Meeting in September 2018, where the proposed Recognition and Implementation of Rights Framework Legislation was widely rejected. Once again, the Trudeau government had recycled elements of Chretien’s previous attempted legislation (1997 Indian Act Amendments & 2003 First Nations Governance Act).

A September 2018 federal paper entitled “Overview of a Recognition and Implementation of Indigenous Rights Framework” described the proposed Framework legislation as follows:

“To summarize, the legislation could: enable the Government of Canada to recognize Indigenous Nations and Collectives as legal entities with the status and capacities of a natural person; enable the self-determined exercise of governance by federally recognized Nations and Collectives; affirm Canada’s intent to enter into government-to-government fiscal relationships with recognized Nations and Collectives;

and, require Canada to co-develop further measures to support these elements.”

After First Nations across Canada rejected the Trudeau government’s proposed Framework in September 2018, on November 15, 2018, a statement from the Office of the Minister of Crown-Indigenous Relations was issued saying:

“Our Government is committed to advancing the framework, and to continue actively engaging with partners on its contents…We continue to make substantial progress…through policy changes and the development of the Recognition of Rights and Self-Determination Tables…We look forward to continue working with our partners on developing more of this crucial framework”.

In 2019, as part of the Trudeau government’s Two-Track approach, the federal government introduced an Omnibus Budget Bill C-97 An Act to implement certain provisions of the budget tabled in Parliament on March 19, 2019 and other measures (First Reading April 8, 2019), buriedin Bill C-97 was legislation to dissolve the Department of Indian Affairs and create two new federal departments (Indigenous Services & Crown-Indigenous Relations). Bill C-97 was proclaimed into law on June 21, 2019.

Bill C-97 established statutory definitions used by both Indigenous Services Canada (ISC) and Crown-Indigenous Relations and NorthernAffairs Canada (CIRNAC), moving the focus from Indians and Indian Bands to Indigenous individuals and Indigenous Governing Bodies in order to transition Indian Bands into Indigenous Municipal Corporations having “Natural Person Powers”:

Indigenous governing body means a [band] council, [Indigenous] government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982.

Indigenous organization means an Indigenous governing body or any other entity that represents the interests of an Indigenous group and its members.

Indigenous peoples has the meaning assigned by the definition aboriginal peoples of Canada subsection 35(2) of the Constitution Act, 1982.

Bill C-97 is pan-Indigenous legislation written to by-pass the Indian Act, which remains in force while it is emptied out as First Nations opt into the federal options of “modern treaties”, self-government agreements or alternate federal legislation. As Sue Collis, a PhD student from Queens University who wrote a paper called “Whither the Indian Act” puts it:

"The state’s method is no longer to repeal, or even substantially amend, the Indian Act but, instead, to move communities, one by one and section by section, into alternate legal structures until no one is left for the Act to govern."

Dr. Jeremy Schmidt, from the Department of Geography in Durham University, UK, wrote a paper called “Dispossession by municipalization: Property, pipelines, and divisions of power in settler colonial Canada”, and explains the Trudeau government’s Two-Track approach this way:

“Canada pursues the “municipalization” of First Nations through state mechanisms that subvert Indigenous authority to the state, then delegate forms of state authority to Indigenous peoples, and conclude by asserting that delegated authority satisfies demands for Indigenous self-determination.”

According to the CIRNAC website on “self-government”:

“There are 25 self-government agreements across Canada involving 43 Indigenous communities. There are also 2 education agreements involving 35 Indigenous communities.”

“Currently there are about 50 self-government negotiation tables across the country. These tables are at various stages of the negotiation process and in many cases are being negotiated in conjunction with modern treaties.”

“Canada recognizes that Indigenous peoples have an inherent right of self-government guaranteed in section 35 of the Constitution Act, 1982. The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government was first launched in 1995 to guide self-government negotiations with Indigenous communities.”

As you can see the Trudeau government continues to use the Chretien era’s ‘general recognition’ of the Inherent Right to self-government, while defining the specific recognition of the Inherent Right to selfgovernment in framework agreements, agreements-in-principle, final agreements and now in federal legislation for Indigenous languages (Bill C-91), Child & Family Services (Bill C-92), Replacing the Department of Indian Affairs with two new Indigenous Departments (Bill C-97) and a Canadian definition of UNDRIP (Bill C-15).

Trudeau’s Two Track approach to transitioning First Nations into 4th level Indigenous Municipal Corporations appears to be working, according to the 2022-2023 CIRNAC Departmental Plan:

“CIRNAC will hold innovative discussions at over 169 negotiations tables based on the affirmation of rights, respect, cooperation, and partnership. Through these discussion tables, representing over 469 First Nations, 22 Inuit communities and 8 Métis organizations, with a total population of over 1 million people, CIRNAC will increase the number of treaties, agreements and other constructive arrangements.

The priorities identified by Indigenous groups are the starting point for discussions at these tables.”

As a “Permanent Bilateral Mechanism” of the Trudeau government, AFN “co-developed” Bill C-91, Bill C-92, and Bill C-15 while remaining silent on Bill C-97, the replacement of Department of Indian Affairs with two new pan-Indigenous Departments.

First Nation communities do not immediately begin developing their own local self-determination plans with families, including elders, women and youth, whether they live on reserve, or off-reserve, each First Nation will eventually be fiscally managed into becoming a 4th level Indigenous Municipality on a fee simple property land base, until the lands are sold off by those communities who are unable to become prosperous in the capitalist market economy.

This is the Trudeau government’s National “Reconciliation” Plan to complete Canada’s colonization project using Chretien’s “Inherent Right Policy” and Legacy Legislation (1999 First Nations Land Management Act & 2005 First Nations Fiscal Management Act).

~~~~

Related documents available from Russell Diabo, [email protected], including:

" Trudeau Using Elements of Chretien’s FNGA as a Framework in 2-Track Approach to Transition First Nations into Municipalities," in the Strategic Bulletin, January - May 2022.

" STATEMENT ON THE NEED TO EITHER DISSOLVE AFN OR FUNDAMENTALLY RE-STRUCTRE AFN" (June 20, 2022), opens with, "The current leadership and personnel conflict between the AFN National Chief Roseanne Archibald, the AFN Executive Committee, the AFN CEO and AFN National Office staff is a consequence of the dysfunction and deception that the AFN organization has operated under for decades now, under an AFN Charter adopted in 1985, which is often ignored by the various bodies within AFN."

" COMMENTS ON 2017 FEDERAL (AND BC) PRINCIPLES FOR INDIGENOUS RELATIONHSIPS," opening, "Re: Principle 1. The Government of Canada recognizes that all relations with Indigenous peoples need to be based on the recognition and implementation of their right to self-determination, including the inherent right of self-government.

Response: The federal government is controlling and managing the “ federal recognition and implementation” of Indigenous Peoples right to self-determination and the inherent right to self-government by defining “Indigenous rights” through federal policy and legislative frameworks while using the Assembly of First Nations, a National Indigenous Organization, in a top down national process (Permanent Bilateral Mechanism) in order to bypass the legitimate First Nation Aboriginal Title & Rights Holders and historic Treaty Nations by maintaining control over the process, scope of negotiations and funding as set out in the two AFN-Canada MOU’s on Joint Priorities and Fiscal Relations, signed by the then AFN National Chief, Perry Bellegarde.

However, a review of AFN Chiefs-in-Assembly Resolutions should be conducted to confirm whether or not these two MOU’s were ratified through proper AFN Chiefs-in-Assembly Resolutions as required by the AFN Charter, perhaps a legal challenge could be launched?

"...a 2002 paper from a Joint Ministerial Advisory Committee considering the then Minister of Indian Affairs, Bob Nault’s proposed “ First Nations Governance Act”, as well as an analysis done on the so-called 1995 “ Inherent Right Policy , for AFN when Ovide Mercredi was AFN National Chief.

Nothing has fundamentally changed in terms of the federal policy framework!

The two attached documents are relevant to the current Trudeau government’s plan to transition Indian Act Bands into Indigenous Municipal Corporations “ having the rights, powers & privileges of a natural person at law”.

The following is a legal opinion on what was referred to at the time as the “ Penultimate Draft” for the proposed First Nations Governance Act.

In conclusion, we would like to highlight some of the major points raised in our opinion:

 

1.      How First Nations conduct themselves in respect of their inherent rights in the post-1982 period has far greater legal consequences, because of section 35. First Nations will need to avoid conduct that can be interpreted as consent or acquiescence to the extinguishments, or more likely, the infringement of their inherent rights.

 

2.      The FNG Proposal if enacted into law will potentially infringe upon First Nation Aboriginal and Treaty rights, namely the inherent right of self-government. The Penultimate Draft establishes a process for the Crown to carry out consultations in respect of this Proposal in a manner, which does not contain adequate safeguards for First Nations. As such, the Penultimate Draft could facilitate this infringement by allowing the Crown to satisfy its constitutional duty to consult at a standard lower than would otherwise be required.

 

3.      Justification for the Crown’s infringement of the inherent right of self-government should require the consent of First Nations. However, it is unclear what level of consultation the Courts will require to justify the FNG Proposal. As such, engaging in any consultation process could prove hazardous to the inherent right of self-government. In short, it gives the Crown a licence to infringe. Therefore, before entering into consultations, First Nations should insist on some guarantees from Minister Nault, in writing, that he would not proceed with the Proposal without some agreed upon level of approval.

 

4.      In light of the AFN Charter and given the terms and the spirit of the Resolution of the Chiefs-in-Assembly of July 17, 18 and 19, 2001, the Penultimate Draft does not conform to the Resolution because: first, it does not reject the FNG Proposal but rather provides for its continuation; second, it does not give inherent rights priority over the FNG Proposal and does not directly link work and approval on the FNG Proposal with implementation of inherent rights; and third, it does not define the criteria and high standard of conduct for consultation and justification .

The federal bureaucracy has been after national legislation to convert Indian Bands into municipal corporate entities that have the “ power, rights and privileges of a natural person at law” for decades now.

The approach is consistent with the 1995 “ Inherent Right Policy ” of Self-Government, imposed by Jean Chretien, which remains the umbrella policy for ALLdiscussions and negotiations with the federal government.

Despite Justin Trudeau’s promise to replace the self-government policy in 2018 with “something better”, it remains in place by the Trudeau government, as does the Indian Act , despite dissolving the federal Department of Indian Affairs in 2019.

To understand how federally legislated municipal powers would work for First Nations (Indian Bands), it parallels provincial municipalities, the B.C. government describes municipal powers as:

     Municipal Corporate Powers

In order for municipalities to operate efficiently, they must be able to exercise certain fundamental powers to operate as a legal body and to interact with others.

 

Corporate Powers in Legislation

In B.C., local government corporate powers are broadly stated in provincial legislation and are similar for both municipalities and regional districts.

 

The corporate powers for municipalities are described in section 8 of the Community Charter as being "natural person powers." Municipalities have the same rights, powers and privileges of a "natural person of full capacity". For example, municipalities may enter into legal agreements, buy and dispose of land, hire and manage employees, and take or be subject to legal actions. These are typically referred to as "corporate powers" and are enabled through the Community Charter.

Failing to get First Nations support for his government’s 2018 “ Rights Recognition Framework ”, for First Nations (Indian Bands) the Trudeau government is promoting band-by-band, signing onto a template agreement that the Metis of Alberta, Saskatchewan and Ontario have signed in 2019.

Section 7 of that template agreement provides as follows:

     FIRST NATION X GOVERNMENT'S LEGAL STATUS, ROLE, JURISDICTION, LAWS, AND AUTHORITY

CHAPTER 7: LEGAL STATUS AND CAPACITY

“ 7.01   As of the Self-Government Implementation Date, the First Nation X Government and each of its Governance Structures will be a legal entity with the rights , powers, and privileges of a natural person at law”.

The following are recent examples of the federal government’s attempts to pass national legislation to impose municipal corporate status over First Nations (Indian Bands), which were defeated by First Nations opposition.

Bill C-79, Indian Act Optional Modification Act (1979):

“ Legal capacity of bands - 16.1 A band has the capacity and, subject to this Act, the rights, powers and privileges of a natural person.''

Bill C-7, First Nations Governance Act (2004):

“ Legal Capacity, Capacity, rights, powers and privileges - 15. (1) A band has the legal capacity, rights, powers and privileges of a natural person”.

Proposed Recognition and Implementation of Rights Framework Legislation (2018):

“ To summarize, the legislation could: enable the Government of Canada to recognize Indigenous Nations and Collectives as legal entities with the status and capacities of a natural person; enable the self-determined exercise of governance by federally recognized Nations and Collectives; affirm Canada’s intent to enter into government-to-government fiscal relationships with recognized Nations and Collectives; and, require Canada to co-develop further measures to support these elements.”

The following are some specific examples of the band-by-band, group-by-group approach (divide & conquer) where First Nations (Indian Bands) have accepted the legal capacity and status—delegated authority (federally created through legislation) as municipal corporations (natural persons at law).

Bill C-93 Sechelt Indian Band Self-Government Act (1986):

 

“ CAPACITY AND POWERS OF BAND , 6.The Band is a legal entity and has, subject to this Act, the capacity, rights, powers and privileges of a natural person”.

TLICHO LAND CLAIMS AND SELF-GOVERNMENT AGREEMENT ACT (2003):

“ GENERAL POWERS , 7.2.1 The Tlicho Government is a legal entity with the legal capacity of a natural person”.

Nisga’a Final Agreement Act (2003):

“ LEGAL STATUS AND CAPACITY , 5. The Nisga’a Nation, and each Nisga’a Village, is a separate and distinct legal entity, with the capacity, rights, powers, and privileges of a natural person”.

Westbank Self-Government Agreement Act (2005):

“ LEGAL STATUS AND CAPACITY , 19. In addition to Westbank First Nation’s capacity to pass and enforce Westbank Law pursuant to this Agreement, Westbank First Nation is a legal entity with the rights, powers and privileges of a natural person”.

Tsawwassen Final Agreement Act (2007):

“ LEGAL STATUS AND CAPACITY , 7. Tsawwassen First Nation is a legal entity with the capacity, rights, powers, and privileges of a natural person”.

Meadow Lake Agreement-in-Principle (2001):

“ 8.0 Capacities of a Meadow Lake First Nation and Meadow Lake Tribal Council , 8.01 Capacities of a natural person Each MLFN is a separate and distinct legal entity with the capacities, rights, powers and privileges of a natural person.”

Sioux Valley Dakota Nation Governance Agreement Act (2014):

“ SIOUX VALLEY DAKOTA NATION , Capacity, 5. (1) Sioux Valley Dakota Nation is a legal entity and, without restricting the generality of the foregoing, has the capacity, rights, powers and privileges of a natural person”.

Cree Nation of Eeyou Istchee Governance Agreement Act (2018):

“ Cree First Nations, Legal capacity, 9(3) A Cree First Nation has, subject to the Agreement, the capacity, rights, powers and privileges of a natural person.”

ANISHINABEK NATION GOVERNANCE AGREEMENT (2022):

“ ANISHINABEK NATION GOVERNMENT , Legal Status and Capacity, 4.1 The Anishinabek Nation is a distinct legal entity with the rights, powers and privileges of a natural person”.

______________________________________________________________________________

The AFN, MNC & ITK are the “ Bilateral Mechanisms ” the Trudeau government is using to give the public appearance of the “ co-development ” of policy and law.

In my opinion, if there is no coordinated First Nations movement to stop the Trudeau government’s top down secretive negotiation approach at the various federal tables, his government’s definition (recognition) of self-determination (self-government municipal status) will become the national standard, without the national legislation the federal government failed to get, just group-by-group ratification of self-government agreements through specific federal legislation and the “ assumed sovereignty of the Crown” set out the section 35 Common Law, which is heavily based on the Doctrine of Discovery.

Since 2015, the Trudeau government has been continued a longstanding Indigenous policy of assimilation, dispossession and termination of rights by municipalization of First Nations under its self-government policy and eliminating Indian Reserves into private property as fee simple parcels. These documents provide the analysis of the federal meaning of Indigenous Reconciliation, which we call White Paper 2.0.

Here is a link to the documents: https://www.russdiabo.com/resources

****

Relating to Diabo's concerns and analysis of Canadian History:

WHAT IS THE 1969 WHITE PAPER ON INDIAN POLICY?

WHAT IS WHITE PAPER 2.0?

Rolland Pangowish < [email protected]>, "What Is the 1969 White Paper on [Canadian] Indian Policy? - What Is White Paper 2.0?

Importance: High

Friends and Colleagues,

This brief paper [ https://www.russdiabo.com/resources] provides a pretty good overview of what Canada is doing and how it accomplishes all those federal goals set out in 1969. Those goals are part of the colonial legacy of Canada, which has subjected First Nations to a major reduction in our goals to achieve a true reconciliation with Canada. We are now slated for municipal status, no different from the status accorded to Metis and Non-status Indians under modern “self-government” agreements. The very same self-government agreement offered to Metis communities is the very same agreement, word for word offered to First Nations under federal policy. The laws and institutions have been put into place to accommodate our incorporation as federal municipalities and release the Crown from further obligations to First Nations.

The bureaucrats in Ottawa have worked at this for over fifty years, but they are accomplishing all of their goals set out in the white paper policy proposal of 1969. The promise that the 1982 Section 35 once held, has been reversed through the implementation of federal policies and legislation designed to limit and box in the interpretation of the constitutional rights recognized. Our lack of unity and dependence on federal funding removed our ability to envision a different future that matched the spirit of our original opposition.

The fact that band council’s and First Nation organizations only exist because of federal funding means these bodies inevitably served to sanction federal policy and legislation. The laws and policies put in place since 2001, with the cooperation of various First Nations, are ensuring our status in Canada will never achieve the standard that the recognition of sovereignty and exemption from state law that Tribal Governments in the United States have achieved. These federal policies, that appear to be supported by band council’s across Canada, will ensure that First Nations never achieve a recognition of their inherent right to jurisdiction outside of absolute federal control, which means we can only operate under a delegation of federal authority and for the most part, will be subject to provincial laws of general application.

The human rights referred to in international law, such as the right of all peoples to self-determination will have no relevance to our peoples in future, as we have been accommodated under federal jurisdiction. Our collective rights and self-determination are all to be subsumed or converted under federal jurisdiction and the resulting municipal corporations will all be subject to the Canadian Charter of Rights and Freedoms. Section 25, exempting inherent, aboriginal and treaty rights from the application of the Charter will no longer be relevant.

I think the federal government is getting away with this reduced level of recognition of inherent and treaty rights, including the continuing dominance of provincial laws over those rights, because we have failed to maintain the consensus that once existed amongst First Nations across the country. Our unity was once a great source of spiritual strength, but it looks like assimilation just caught up to us. The disappearance of our language and culture precedes the cutting of our connections to traditional lands and territories. In the near future, such matters will be the domain of hobbyists and historians.

That is the sad way I see all of this going after so many years working to protect our rights, many of us are left to reflect on what could have been.

Regards,

Rolland Pangowish

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