Chart to Show the Pre-Election Overview of the Federal Government in Relation to First Nations

Russell Diabo

Sent in an E-mail from Russell Diabo (rdiabo@rogers.com) November 16, 2019 prior to the Canadian federal elections, along with pdfs not included here, showing the current federal self-government policy and the “Collaborative Self-Government Fiscal Policy”. These are the policies that will apply to Indian Act Bands who opt out of the Indian Act through 1) (Where Eligible) Comprehensive Claims Settlement Agreements (Modern Treaties) 2) Section 35 Self-Government Agreements or 3) Alternative Federal Legislation to assimilate Indian Act Bands into Canada’s property & tax systems, such as the First Nations Land Management Act and the First Nations Fiscal Management Act, etc., 4) a description of what was in Bill C-97, the omnibus budget Bill that dissolved the Department of Indian Affairs and created the two new federal departments (Indigenous Services & Crown-Indigenous Relations).

Here is a chart I created to show the pre-election overview of the federal government. The Cabinet Committees may change to fit the new priorities of the Trudeau Minority government.

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SUMMARY OF ISSUES FOR FIRST NATIONS OUTSIDE OF BCTC PROCESS

Contributed by Russell Diabo, rdiabo@rogers.com

The 2019 BC Treaty Negotiations Policy maintains the BCTC process, which is the delivery system in BC for the federal Comprehensive Claims Policy for the federal and BC governments to obtain “certainty” over Crown Title by obtaining essentially the surrender of First Nations to asserted Crown Title and sovereignty, a Crown objective for the past 256 years.

   Following the SCC Calder decision in 1971, in 1973 the federal government announced a Native Claims Policy, establishing two parts to the “land claims” policy: Comprehensive Claims to obtain the extinguishment of unceded Aboriginal Title across Canada and Specific Claims to settle outstanding lawful obligations regarding illegal disposition of Indian lands or trust funds.

   In 1975, the first Comprehensive Land Claims Settlement Agreement was signed in Canada, the James Bay Agreement in Quebec. The Crees of Quebec agreed to extinguish their Aboriginal Title in exchange for benefits under the Agreement.

   In 1983, following the adoption of the Constitution Act 1982, an amendment to section 35 was made to add: “ (3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.” [emphasis added]

  This 1983 constitutional amendment was added through the lobbying efforts of the Grand Council of the Crees of Quebec (signatories to James Bay Agreement) and the 6 Actively Comprehensive Claims Negotiating Groups: Nisga’a, Council for Yukon Indians, Dene-Metis, Tungavik Federation of Nunavut, Council Attikamekw-Montagnais, Labrador Inuit Association.

   The 1983 amendment to section 35 constitutionalized a legal distinction between historic pre- 1975 Treaties with Great Britain and the post-1975 “Modern Treaties”, which placed the burden of proof on an Aboriginal group asserting Aboriginal Title to prepare a “Statement of Claim” under the Federal Comprehensive Land Claims Policy (CCP) criteria. The main purpose of the CCP was to obtain extinguishment of Aboriginal Title.

   From the beginning of the 1973 Comprehensive Land Claims Policy until 1990, there was a cap of negotiating only 6 comprehensive claims at a time. Thus a waiting list formed, particularly in BC as the Nisga’a Comprehensive Claims Negotiations dragged on until 2000.

   In 1990, following the “Oka Crisis” the federal government removed the cap on negotiating only 6 Comprehensive Claims at a time.

  In 1991, a Report of the British Columbia Claims Task Force (1991) made 19 recommendations that led to the signing of the 1992 British Columbia Treaty Commission Agreement establishing the BCTC process.

2019 BC Treaty Negotiations Policy

   The 2019 BC Treaty Negotiations Policy is the first post- Tsilhqot’in policy regarding Aboriginal Title & Rights and maintains the problems with the BCTC process, particularly for those First Nations who never agreed with Canada’s Comprehensive Claims extinguishment of Aboriginal Title policy.

   Even the Assembly of First Nations recognizes that:

   The federal implementation of Canada's Comprehensive Claims Policy (CCP) has led to three classes of Aboriginal Title First Nations:

i. First Nations that have entered in final comprehensive claims agreements;

ii. First Nations that were or have been in comprehensive claims negotiations; and,

iii. First Nations that have never agreed to negotiate under the federal CCP. [ Source: AFN Special Chiefs’ Assembly Resolution no. 47/2015]

   The issue of “ overlap” or shared territories between Aboriginal Title First Nations in classes i, ii, and iii, as referenced above is a problem stemming from the federal and B.C. creation of the BCTC process in 1992, which simply allowed “ statements of intent” along with maps from groups that were not required to do any research (oral & written) to back up the maps, as groups in other regions of Canada had to do through the federal Comprehensive Land Claims Policy in developing a “ statement of claim”.

  The BC Treaty Negotiations Policy perpetuates the fundamental problems arising from the federal Comprehensive Land Claims Policy, and the 1992 BCTC process, including “ overlap”, particularly between Indigenous Nations and communities who hold Aboriginal Title vs. Modern Treaty groups, such as the Nisga’a Nation, which the 2018 Supreme Court of B.C. decision in the Gamlaxyeltxw v. British Columbia (Minister of Forests, Lands & Natural Resource Operations) case, addressed regarding moose hunting in an “ overlap” area with Gitanyow.

  It is not just “ overlap” that is a problem, it is the principles the Policy is based on, lawyers Kate Gunn and Bruce McIvor, wrote an article dated September 18, 2019, entitled “ Recognition without Reconciliation?: The New Rights Policy for BC Treaty Negotiations”, that “ the new policy continues to implicitly rely on the doctrine of discovery as the basis for treaty negotiations in British Columbia”. https://www.firstpeopleslaw.com/index/articles/412.php

   The interpretation of UNDRIP by the governments of BC and Canada—particularly with the introduction of BC Bill 41 and the expected federal Bill on UNDRIP during the mandate of the Trudeau minority government—are central to the First Nations Aboriginal Title and Rights in BC and how the BC Treaty Negotiations Policy may impact on First Nations outside of the BCTC process.

Canada’s position regarding the domestication (watering down and re-writing) of UNDRIP is set out in the 10 Principles respecting the Government of Canada’s Relationship with Indigenous peoples, issued in June 2017, by the federal Justice Minister, which refer to “ Canada’s constitutional framework” and “ Canada’s constitutional arrangements” as the basis of interpreting UNDRIP and the 10 Federal Principles within Canadian domestic law, where the federal principles acknowledge “ self-determination” on one hand, but then put it squarely under the umbrella of “ European assertion of sovereignty” on the other. This is in violation of international legal standards!

   While the new B.C. Treaty Negotiations Policy contains many nice sounding words the BCTC process still has many qualifications to negotiations and is still an unequal political negotiation process controlled by the federal and B.C. governments, who retain essentially a veto in the “ co- development” of negotiation mandates over matters that may affect federal or provincial jurisdiction, within Canada’s constitutional framework.

  This includes the section 35 legal principles and tests the Supreme Court of Canada has set out over the past 29 years that place the burden of proof on Indigenous communities and Nations asserting Title and Rights and as noted above the new B.C. Treaty Negotiations Policy remains based upon the Doctrine of Discovery, despite the disingenuous statement in section 16 of the new B.C. Treaty Negotiations Policy, which states “ The negotiation of treaties…in British Columbia will be guided by the following…” [emphasis added]

d. Truth and Reconciliation Commission’s 94 Calls to Action, which call for repudiation of concepts such as the doctrine of discovery.

   Section 16 is clearly not an explicit “ repudiation” of the Doctrine of Discovery. The governments of Canada, British Columbia and the First Nations Summit should have relied on the first recommendation of the 1996 Royal Commission on Aboriginal Peoples’ Report, which was as follows:

The Commission recommends that:

1.16.1 To begin the process, the federal, provincial and territorial governments, on behalf of the people of Canada, and national Aboriginal organizations, on behalf of the Aboriginal peoples of Canada, commit themselves to building a renewed relationship based on the principles of mutual recognition, mutual respect, sharing and mutual responsibility; these principles to form the ethical basis of relations between Aboriginal and non-Aboriginal societies in the future and to be enshrined in a new Royal Proclamation and its companion legislation (see Volume 2, Chapter 2).

1.16.2 Federal, provincial and territorial governments further the process of renewal by


(a) acknowledging that concepts such as terra nullius and the doctrine of discovery are factually, legally and morally wrong;

(b) declaring that such concepts no longer form part of law making or policy development by Canadian governments;

(c) declaring that such concepts will not be the basis of arguments presented to the courts;

(d) committing themselves to renewal of the federation through consensual means to overcome the historical legacy of these concepts, which are impediments to Aboriginal people assuming their rightful place in the Canadian federation; and

(e) including a declaration to these ends in the new Royal Proclamation and its companion legislation.”

   Canada’s courts are in a conflict-of-interest, including the Supreme Court of Canada. Canada bases its assertion of sovereignty and territorial integrity on the racist, colonial Doctrine of Discovery, as such the “ reconciliation technique” in the new B.C. Treaty Negotiations Policy, in violation of international legal standards, continues a process of surrender to asserted Crown Title and Sovereignty.

  The establishment of the 2019 BC Treaty Negotiations Policy with only BC First Nations Summit, while excluding the UBCIC and its member Bands is a breach of UNDRIP Article 27, which provides:

Article 27

States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process. [emphasis added]

  The 2019 BC Treaty Negotiations Policy also fails to include all of UNDRIP Article 28, which provides:

Article 28

1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied


or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.

2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.

  By Canada and B.C. developing and adopting an exclusive BC Treaty Negotiations Policy effectively denies “ a fair, independent, impartial, open and transparent process” to the UBCIC member Bands, particularly since the Policy remains based upon the 1991 Task Force on Claims Report and Recommendations and the 1992 BCTC Agreement, which were developed before the 2007 adoption of UNDRIP by the UN General Assembly.

  The 2014 SCC Tsilhqot’in decision essentially reaffirms the Delgamuukw legal principles regarding Aboriginal Title so the previous work of the AFN-Delgamuukw Implementation Strategic Committee ( DISC) should be reviewed by those First Nations outside of the BCTC Process in assessing the 2019 BC Treaty Negotiations Policy.

   Following the issuance of the 1997 Delgamuukw decision, the following steps were developed for the Interior Alliance under the direction of the Interior Alliance spokesperson, Arthur Manuel.

Step 1 - Establish the Facts Related to Aboriginal Title:

   This involves assembling and assessing the factual evidence required to prove the Aboriginal title. In eastern Canada, the federal government once provided financial support to First Nations so that they could gather and organize their evidence. In British Columbia, since the advent of the B.C. Treaty Commission process, this step has been eliminated.

Step 2 - Determine Whether Activity Infringes or Interferes with Aboriginal Title:

   This step involves determining whether past, present or proposed actions by other parties stand to infringe Aboriginal title, or interfere with the free exercise of rights flowing from that title.

Step 3 - Can the Infringement be Justified?

   At this stage, offending practices, regulations, legislation and actions need to be reviewed and justified.

Step 4 - Resolution:

   The Court stated clearly that Aboriginal title can be reconciled with the Crown’s presence without requiring extinguishment (except in exceptional cases). This last stage, then, focuses on reconciliation and remedial measures, with the objective of recognizing and affirming Aboriginal title. This could involve compensation for past actions; agreements on consultation-consent; new arrangements for jurisdiction over lands and resources ; resource revenue sharing, etc., etc.

   This process is quite different from the existing Canada’s Comprehensive Claims policy. There is a Delgamuukw framework to implement, the question remains, is there the political will on the part of First Nations, and on the part of governments?

ANNEX 1

Mapping the “Sufficient, Continuous and Exclusive Tests

By David Carruthers, BES, MSc, MCIP, RPP

September 14, 2015

   It’s been over a year since the Supreme Court of Canada’s unanimous ruling on the Tsilhqot’in Case . When I read the decision, the words of Chief Justice Beverley McLachlin jumped off the page. In describing the test for Aboriginal title, she stated that it [occupation] “must be sufficient ; continuous (where present occupation is relied on); and it must be exclusive ” (para 25). As a land use planner and cartographer, these words were read as a challenge.

  Thinking about the communities where I work, many of whom are in the comprehensive claims process, I wondered what research products would be needed to meet these three tests. Once this research was assembled, could we reach a reconciliation of title and avoid the Crown’s policy of extinguishment?

  I’ve been working for almost 20 years on Aboriginal land management issues with a wide range of experts throughout Canada, on various pieces of land claims research. But I haven’t come across a single published study that outlines the must-have shopping list of research products to help in title determination.

   I recently spoke with a mentor of mine, Dr. Doug Elias, and asked him specifically about this. He had a lot to say on the topic. Dr. Elias, retired professor in the Faculty of Management at the University of Lethbridge, Alberta, has worked on Aboriginal title issues across Canada since the late 1960’s.

   Elias told me that the three tests have been around since the 1980’s when the Baker Lake ruling was decided. But the research needed to meet these tests has been quickly evolving. He published a paper on the topic for the Ontario Model Forests in 2002 – which served as a good primer to get me started. It’s a bit outdated, but certainly worth the read.

   In our conversation, Elias first advised me not to oversimplify the onerous task in meeting these tests. “A mountain of research is needed”, he said. This, despite Chief Justice McEachern in Delgamuukw cautioning that “there are limits to how much evidence a party may adduce, and a trial must always be confined within reasonable limits.” Elias noted that research needs to be tailored to each community on a case-by-case basis. But there are some overarching or core research pieces that should be quite common between cases. And many research products can be used to address more than one of the three tests. Here’s a summary and a few notes for each:

1. Use and Occupancy Study

   A good use and occupancy study might be one of the most important pieces of research to address the three tests. These studies carefully map out where harvesting of plants and animals take place, where there are habitations and fixed cultural sites and where trapping and cultural activities occur within a harvester’s living-memory. When done well, these studies demonstrate, in a very defensible way, where and how the land is being used. A great resource for these studies is Living Proof by Terry Tobias. These studies can also be tweaked to incorporate a time element to capture frequency of use (how often, when, etc.), and changing patterns of use over time, which may prove helpful in dealing with the sufficiency test. But mapping intensity and change of use can be expensive and a very complex undertaking. See for example

the Subsistence Mapping of Nuiqsut, Kaktovik and Barrow study for what might be involved in designing a study to document subsistence patterns and measuring changes in those patterns over time.

2. Harvest Study

   While a use and occupancy study demonstrates where and how the land is being used, a harvest study answers the question, how much is being used? In simple terms, these studies track seasonal harvesting amounts on a house-by-house basis and convert pounds of meat, berries, firewood, etc. into current market values. Of all the studies, the harvest study might prove to be the most time intensive and difficult to complete. I believe, however, that a rapid-appraisal technique can be used to approximate harvest amounts, producing enough information to help move forward in dealing with the sufficiency test. Research results can also be used when negotiating impact benefit agreements or when developing mitigation strategies to address the displacement of harvesters.

3. Toponym or Place-Name Study

   Naming places is an act of claiming sovereignty, a key reason why the Crown almost entirely deleted or replaced Aboriginal place names from Canada’s topographic maps. Peter Di Gangi, consultant and Director of Policy and Research with the Algonquin Nation Secretariat (ANS), has documented Quebec’s “ Toponymical Imperialism ” between 1911 and 1928 where Quebec’s Geographic Names Commission removed “barbarous” indigenous place names and replaced them with “cultured” French toponyms. I’ve since worked with the ANS to build a tool to help put Algonquin names back on their maps through a site titled, The Land that Talks .

   But naming places is more than just an act of planting flags. Indigenous place-names can help to document kinship and family connections to the land and reveal a profound understanding of local ecology which is important in all three tests of title.

4. Indigenous Knowledge (IK) or Traditional Ecological Knowledge (TEK) Studies

This is a tough piece of research. When done well, these studies can help to document sufficiency and continuity of title by demonstrating deep knowledge of place, based on experience, oral history and cultural traditions. TEK research is helpful to predict outcomes of change: how, for example, will animal behavior change given a specific change in the environment (mine, oil sands, climate change, etc.). It can also help to document laws or code of ethics in managing resources, all important for the sufficiency determination.

But these studies are difficult to pull off, or pull off well. In a recent conversation with Terry Tobias, author of Living Proof, Terry noted that very few TEK studies published in Canada have documented their methods and that most studies have produced questionable results when it comes down to the reliability or replicability of their findings. Elias agrees. He said that, despite just about every land and wildlife program in Canada incorporating traditional knowledge in their policy statements, these organizations have very little to say about best practices in how to do so. “Platitudes without practice”. You can see this with Ontario’s Moose Management

Policy or Canada’s Species at Risk Act.

A good recent resource on the subject is a report by Peter Armitage and Stephen Kilburn, titled Conduct of Traditional Knowledge Research in the Inuvialuit Settlement Region. One of the guiding principles from this report in designing a TEK or IK study is to “use proper social science research methods, set clear research objectives and restrict research topics so these can be achieved in the time and with the resources available”. Good advice.

5. Documentation of Customary and Traditional Laws

   The courts have asked claimants to make their “Aboriginal systems of governance” and laws known. Elias notes that there are no real best-practices in this field of study but skilled ethnographers should have no problem in pulling this research together. The outcomes from this research will not only help with the sufficiency determination for title, but can also be used for joint or co-management negotiations governing how lands are managed.

6. Archaeology, written history and ethnography

   This might be the most straight forward research component, but may entail the most amount of work. Elias describes this work as a way to summarize all available research into a narrative that demonstrates the extent of a claimant’s territory since the time of contact (and before), the extent of exclusivity and overlap with neighbours, and a record of the claimants’ changing social environment. The research also demonstrate that the claimant is an ‘organized society’ and that this society is connected to land. Pretty much all three tests of title will rely on the narrative from this research.

7. Genealogy

   Genealogy studies can fall under general ethnographic research, but I’ve separated it out here because it should be tackled as a stand-alone piece of research. These studies start by asking, “who are today’s members?” and work backwards from there. This helps to demonstrate the degree to which the community has maintained its continuity of membership over time. This is important for the continuity and sufficiency tests. According to Peter Di Gangi, this research is very powerful when connected to the use and occupancy research to demonstrate continuity of use.

8. Alienation Study and State of the Territory Report

   I added this to the list based on my own experience in working on land issues. White spaces on maps are often interpreted as “abandoned” or “surrendered”. Once we inventory third party use and cumulative impacts in a territory, however, we get a clearer sense of why harvesters may have gone elsewhere (e.g. mining, forest development, aggregates, oil and gas, Crown dispositions, non-native harvesting and tourism, etc.). These studies are also important in negotiating interim relief while Title is being resolved. And these studies can help in determining compensation for impacts.

   From this list we can clearly see that mapping is a central tool to record, package and tell the story of Aboriginal Title. We can also see that whenever a wealth of information is collected, information management standards are needed to organize and safeguard the research products. And of course, good research doesn’t speak for itself – it needs to find its way into the hands of a strong leadership, skilled negotiators and experienced legal advisors.

   And what about a budget and timeline to pull all of this research together? I might go out on a limb here. With some legal time thrown into the mix, I would hazard to guess that it would be around $750,000 to $1,000,000 and a minimum of three to five years to pull together, depending on the community and complexity of the case. This could certainly be more if a full harvest study is undertaken, not just a rapid appraisal study. Either way, this is a significant investment, especially when the outcomes for title determination aren’t guaranteed.

   But if done well, these research products can be used for other applications like helping to inform consultation and accommodation work with the Crown. And for education, cultural rediscovery and outreach. This alone to me is a good return on investment.

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