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OUTLINE OF PRESENTATION AFN NATIONAL POLICY FORUM: Affirming First Nations Rights, Title and Jurisdiction, September 11-12, 2018 Agenda item: “Affirming Treaty Rights and Inherent Rights, Title and Jurisdiction” “This presentation will provide an overview and background on where we’ve been regarding First Nations advocacy to advance respect, affirmation and implementation of Treaty rights and inherent rights, title and jurisdiction at both the domestic and international level” INTRODUCTION Personal Good morning. I’m Anishinaabe, my Anishinaabe name is Giizhganaang. My Dodem is Maahiingaan, which is Wolf Clan. I’m from Wiigwaskinaaga, Whitefish River First Nation in Ontario. I want to acknowledge the territory of the Algonquin people and say Miigwetch for allowing me to be here. I also want to acknowledge Elder Mike Mitchell, the National Chief and the Delegates. I’m a lawyer and I’ve been a lawyer since 1982 – my Law Firm is “Nahwegahbow, Corbiere” located at Rama Reserve. We act exclusively for First Nations, mainly First Nation governments and organizations. What I’m Tasked to do I’ve been asked to provide a retrospective on First Nations’ advocacy efforts over the years, to identify “lessons learned”, criteria, indicators, or standards to enable you to better assess the federal government’s proposed Recognition Framework. I want to make it clear at the outset that I’m not here to try and persuade you on the merits of the federal initiative. In fact, I have some serious concerns about the federal proposal, particularly about the process, but also about substantive aspects. Experience: How I Developed my Insights Before moving to the main part of my presentation, I want to tell you how I developed my insights for the advice I provide in this presentation. I’ve been involved in a variety of efforts – including the courts, negotiations and in policy processes -- over the years to advocate for the treaty and inherent rights of First Nations people, which is I suppose why I’ve been asked to speak to you today. I moved to Ottawa in 1976 and went to work for the National Indian Brotherhood (predecessor to the AFN), when I was in Law School, as Special Assistant to then President Noel Starblanket. So, while I was not here during the 1969 White paper, I was here in the aftermath of the rejection of that Policy by First Nations.
SLIDE 2 2 Shortly after I established my law practice in 1982, I was retained by the “Penner Committee” – the Special Parliamentary Committee on Indian Self Government -- to do the Study on the Crown-First Nation Trust Relationship. I also worked for RCAP, in the Treaty Study group Over the years I’ve been involved in, and continue to be involved in, Aboriginal title and treaty rights litigation. I’ve acted as counsel in interventions at the Supreme Court of Canada, including the Tsilhqot’in case. I’ve represented the AFN, along with in-house counsel Stuart Wuttke, at the Canadian Human Rights Tribunal, in the First Nations Child Welfare case. I provided advice to First Nations’ organizations opposed to Robert Nault’s First Nations’ Governance Act (FNGA). Also, I Co-chaired the AFN RIFNG Committee on “Recognition and Implementation of First Nations Government”, which led to the Crown – First Nations Political Accord. ASSESSING THE FEDERAL PROPOSAL: RETROSPECTIVE REVIEW OF FIRST NATIONS ADVOCACY AND CROWN POLICY
- A. Lessons Learned from History
There is a Paper in your materials called Affirming First Nations Rights, Title and Jurisdiction, written by Kathleen Lickers, with input from a variety of people, including
- myself. It is an excellent summary of First Nation advocacy efforts in recent times. I will
touch on some of the high points in that Paper, but I suggest you read it. Nation to Nation Relationship I said that Kathleen’s Paper looks at First Nation’s advocacy efforts in recent times. I want to go back a little further in time than that, into historical time. And I will tell you why: because it is my first criteria for assessing the federal policy proposal – how does it align with the “nation to nation relationship? The government talks about “renewing the nation to nation relationship”. It is an easy thing to say and it has almost become rhetorical. But if the Prime Minister and the Crown is genuinely interested in “renewing” the nation to nation relationship, they need to look at the “nation to nation relationship”, as historical fact and not fiction. After 1760, when the British defeated the French, and they presumed to think that they conquered the Indian Nations, they quickly realized that that that was not the case. The Anishinaabe under Pontiac rose up against the British occupation of former French
- Forts. It forced the Crown to issue the Royal Proclamation of 1763, to assure Indian
Nations that the Crown would respect their rights. The Proclamation itself used language that was respectful of the sovereignty of Indian
- Nations. Moreover, the Proclamation and the legislation that followed it, up until the
early to mid-1800s, did not purport to regulate Indians, rather it was intended to prescribe how settlors and colonial governments interacted with Indian Nations.
SLIDE 3 3 The Need for Mutuality: Covenants or Agreements entered into under the Laws of both the Crown and First Nations On the other hand, the Proclamation was a unilateral edict of the British Crown. As such, it was not enough to satisfy Pontiac and the Indian Nations that went to war with the Crown, which is why Sir William Johnson (the first Superintendent General of Indian Affairs) was forced to hold a Treaty Council at Niagara in 1764. He had to put those promises into the form of a nation to nation covenant or agreement, entered into according to the laws of Indian Nations. That is the second lesson learned or criteria for evaluating the federal initiative – is it truly by mutual agreement between First Nations and the Crown? The federal proposal talks about “partnership approaches”, but the process is unilateral and contemplates unilateral federal legislation and policy. What is really required is an agreement which recognizes both First Nation laws and authority and Crown laws and authority. Legal Implications: Supreme Court of Canada Jurisprudence This brings up the third touchstone, which arises from the historical context. Modern jurisprudence of the SCC recognizes the current legal conundrum of asserted Crown sovereignty vs First Nations’ sovereignty and the fact that it remains an unresolved legal issue in Canada – this is what the Court said in the Haida case. And, this is the purpose
- f the Court’s “reconciliation” doctrine, to try and reconcile de facto Crown sovereignty
with pre-existing sovereignty of First Nations. So, while the federal officials might try and push “pragmatic solutions” to reconciliation, it is always important to be mindful of your legal position. Although, pragmatic considerations are important, they should not be prejudicial to your aboriginal and treaty rights.
- B. Lessons Learned from Recent Advocacy Efforts
Kathleen’s Paper reviews recent advocacy efforts and the evolution of federal Crown
- policy. In the interest of time, I just want to review the high points.
The 1st is the 1969 White Paper – The lesson for First Nations is if you don’t like what the government is doing resist with solidarity. The lesson for the government is don’t try to force policy changes on First Nations. Make sure you have complete, meaningful consultations and consent. The 2nd is Section 35 of the Constitution Act, 1982 – During the patriation debate, First Nations were successful in forcing the governments of Canada to entrench Aboriginal and treaty rights in the Constitution. First Nations brought legal proceedings and engaged in lobby efforts in the UK, and launched the Constitutional Express. The lesson for First Nations - it was achieved through unified, forceful multi-faceted approaches to
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- advocacy. The lesson for the government – don’t try and sideline a rights-based
approach; negotiate in good faith. The 3rd is FNGA and Other Legislative Efforts – The FNGA was a disaster for the federal government and poisoned First Nation Crown relations for a long time. In fact, it probably contributed to the distrust regarding the current government and the proposed recognition framework. Lesson for the government – don’t try to force policy changes on First Nations. The 4th is SCC Jurisprudence and Use of the Courts – Section 35 has led to successes in the courts, even though governments have continued to try and marginalize such rights. At the outset, governments insisted that s. 35 was an “empty box”. The courts proved them wrong and the lesson for federal and provincial governments – to be more principled and less adversarial. The 5th Lesson Learned from Penner, RCAP and TRC – It is important for First Nations to remain engaged in policy processes. While they may be frustrating and not bring about immediate change, they contribute to public education and pressure on governments. Lesson for governments – be serious and sincere in efforts to implement these recommendations because they won’t go away. Ignoring them does not make the underlying problems go away, they only get worse. CONCLUSION Reflecting on the lessons learned, it is pretty clear that the federal proposal is problematic. On the other hand, an important lesson learned from history and from more recent advocacy efforts, is that every effort has resulted in an opportunity to move the yardstick forward. That is true of Pontiac’s War, which resulted in the Royal Proclamation and the Niagara Treaty of 1764; it is also true of the 69 White Paper, which led to the land claims policies
- f the 70s; and it is true of s. 35 and the jurisprudence around that; and it is true of Oka
which resulted in RCAP and eventually focus on Indian Residential Schools and the TRC; and it is true of the failed FNGA, which resulted in the First Nations Crown Political Accord. There is a word or concept in Anishinaabemowin, which the Elders talk about –
- Aangomsawin. It means be careful, move forward cautiously, but it doesn’t mean stop
- moving. You need to be cautious and assess the good faith of this government. There
appears to be some good faith, especially compared to the former government. I think if you can persuade the Trudeau government to slow down and do it right, there is an opportunity to fashion a framework to promote the further recognition and implementation of treaty and inherent rights and self-determination. Miigwetch.
