Trudeau Gov’t’s Plan to Entrench 4th Level of Indigenous Gov’t & Permanent Subjugation of First Nations

From the First Nations Strategic Bulletin, April – September 2018 issue

In October 2015, a Liberal government came into power with promises of reconciliation and a new “nation to nation” relationship with Indigenous Peoples.

In a revealing interview that has gone unremarked, Prime Minister Justin Trudeau made clear what he meant by this “nation to nation” relationship. At a public event organized by “The Economist” magazine in Toronto in the summer of 2016, the interviewer asked the Prime Minister how his government was going to liberalize and deregulate inter-provincial trade within Canada. Trudeau responded:

“The way to get that done is not to sit there and impose, the way to have that done is to actually have a good working relationship with the Premiers, with municipal governments, with Indigenous leadership, because Indigenous government’s are the fourth level of government in this country.” [emphasis added]

First Nations have never demanded a “fourth level” government after municipalities. First Nation demands for self-determination have sometimes, as in the Penner Report on Indian Self-Government in 1980s, been characterized as third-order government, with jurisdictional authority alongside the provincial and federal governments. But this Liberal PR term is nothing but a cover for a termination agenda, as with so much else about the Trudeau government’s plans.

As the Liberal government pushes ahead with their so-called “Rights Recognition Framework”, aiming to have a bill before Parliament by December, First Nation Peoples need to see through the spin and get straight about the threat to their Inherent and Treaty Rights.

The White Paper Redux

It should be noted that when the term “Indigenous Governments” is used by the federal politicians and officials it does not refer to bands under the Indian Act because the federal government  considers Indian Act bands to be non-governing groups:

“Indigenous Governments” are defined as those Indigenous Governments operating under various self-government regimes, including:

• A comprehensive land claim agreement which includes a comprehensive self-government component;
• A comprehensive agreement on self-government; or
• A legislated comprehensive self-government arrangement.

[Source: DRAFT Self-Government Fiscal Policy, Proposal for Federal Review, Collaborative Fiscal Policy Development Process, December 13, 2017]

While the majority of Indian Act bands in Canada have not entered into self-government agreements or “modern treaties”, hundreds of bands are negotiating or have already opted out of many sections of the Indian Act into the only alternative federal legislation for social and economic development purposes that the federal government has allowed, some of the legislative options include:

• First Nations Fiscal and Statistical Management Act
• First Nations Land Management Act
• First Nations Commercial and Industrial Act
• First Nations Oil and Gas and Moneys Management Act

In addition to these legislative options to go “beyond the Indian Act”, since 2015, the Trudeau government has created a new category of negotiations:

Canada has been co-developing mandates for discussion with Indigenous partners at over 70 Recognition of Indigenous Rights and Self-Determination tables with over 300 communities representing over 800,000 Indigenous people. [Emphasis added]

This diversity of relationships between First Nations and the federal and provincial governments (not to mention the Metis and Inuit) is what the federal government is trying to manage and control through the top down approach in developing the “Recognition Framework” that Prime Minister Justin Trudeau announced in Parliament on February 14, 2018.

For the last three years the federal government has bypassed First Nation Peoples and taken unilateral actions in developing the “Recognition Framework”, such as: the imposition of the federal 10 Principles on Indigenous Relationships; the dissolving of the Department of Indian Affairs and replacement with two newfederal departments; a secret law and policy review; agreements and increased funding with the three National Indigenous Organizations (First Nations, Metis, Inuit) to include them into the federal process; and now the creation of a “Reconciliation” Cabinet Committee, chaired by Jim Carr, the federal Minister of International Trade Diversification (read: pipelines).

It was Jim Carr, who on December 1, 2016, as the federal Minister of Natural Resources, who threatened the use of force on pipelines when he said:

“If people choose for their own reasons not to be peaceful, then the government of Canada, through its defence forces, through its police forces, will ensure that people will be kept safe… We have a history of peaceful dialogue and dissent in Canada. I’m certainly hopeful that that tradition will continue. If people determine for their own reasons that that’s not the path they want to follow, then we live under the rule of law.”

As a candidate in the last AFN election for National Chief I knew the Trudeau government was campaigning for the incumbent, Perry Bellegarde, to be re-elected, or for one of the other status quo candidates, anyone other than me, Minister Bennett was even blatantly campaigning in the Alberta Chiefs’ Caucus for them to “move forward” with the “Recognition Framework” on election day in Vancouver. [Source: Audio Recording]

In my opinion, Perry Bellegarde’s direct participation and partnership with the Prime Minister is a big part of the federal plan to get the “Recognition Framework” passed into law in 2019, which is also the 50th Anniversary of the 1969 White Paper on Indian Policy, a policy based on the Trudeau-Chretien Termination Doctrine.

The Trudeau-Chretien Doctrine is to remove the legal distinctions between status Indians and Canadians, based upon egalitarian arguments. In a post-1982 constitutional context that means getting First Nations to consent to a “new” relationship to close the “regulatory gap” between “Indians and lands reserved for the Indians” and provincial/municipal governments, through agreements and now legislation that define the meaning of self-government and self-determination.

The Trudeau government is now stating the impending “Recognition Framework” will be “opt-in” enabling legislation, meaning once a band opts into the “Recognition Framework” they consent to the legislation. Indian Act bands will be coerced/convinced through the new fiscal relationship to enter into new recognition agreements.

National Policy Forum on Affirming Rights, Title and Jurisdiction

On July 26, 2018, the day after the AFN election in Vancouver, the AFN Chiefs-in-Assembly gave direction through Resolution 39/2018, First Nations Determination to the Path to Decolonization. This Resolution calls for the following:

1. Confirm that only First Nations can determine the path to decolonization and reconciliation.
2. Establish a First Nations’ led process to draft a new Royal Proclamation binding on the Crown in right of Canada and all of the provinces and territories.
3. Call on Canada to set-aside its Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples (Ten Principles) as the basis of the relationship going forward. Regions such as Ontario and British Columbia have their own principles that must be respected in their relationships going forward.
4. Halt the “Recognition and Implementation of Rights” process going forward and insist that Canada participates in a First Nation-led negotiation with Canada to mutually establish principles to observe and implement the United Nations Declaration on the Rights of Indigenous Peoples, including a joint action plan for such implementation.
5. Call on Canada to confirm it is committed to an independent international arbitrator to resolve disputes between Treaty partners and within the Nation-to-Nation relationship.
6. Call on Canada to immediately convene a meeting with First Nations to discuss this issue.

The Agenda of the September 11-12, 2018, AFN National Policy Forum on Affirming Rights, Title and Jurisdiction was controlled and developed by the AFN National Chief, Perry Bellegarde and the AFN Executive Committee, which is why the AFN Forum failed to significantly address all of the elements in the AFN Resolution 39/2018.

Instead of the AFN Forum Agenda leading off with First Nation speakers to discuss the decolonization elements of the AFN Resolution the focus was on the Trudeau government’s “Recognition Framework” and the Minister for Bellegarde’s Re-Election, Carolyn Bennett.

So, on September 11, 2018, the first day of the AFN National Forum, Crown-Indigenous Relations Minister Carolyn Bennett, flanked by her Senior Officials, delivered a speech to the AFN Forum delegates on the proposed federal “Recognition Framework” which prompted a delegate, Judy Sayers—who is a lawyer—to tell Minister Bennett, following her speech:

“…if you translated your speech into a paper, I think it would be a lot more acceptable than the one that we got and let me tell you why. You talk about the right of self-determination and that does mean that Canada gets out of the way because self-determination means that we, as a nation, decide our political status, our economic, social and cultural development. The paper you’ve presented does not do that.

You want us to come before you and say “Recognize us as a first nations government”, that is really insulting. That is just not what recognition means and it’s notwhat nation-to-nation means and then you go further on to say that if you can’t decide it, we’ll go to a committee. Why does a committee get to decide what our nation is? We tell you. You don’t tell us. Nothing that – should allow you to do that, nor should we be told that we have the legal capacity of a natural person. We are a nation. Nations don’t need to be legal persons to carry out what we need to do and I think that, if you’re willing to be changing that whole recognition of having to come and be recognized by your government, we would be a lot further ahead, because what this reminds me of is the private member’s bill that Jody Wilson-Raybould, Senator Gerry St-Germain and Tony [inaudible] put together, just the recognition of self-government. That’s not our document. That was their document.

You need to listen to people and when I see you talk to hundred and ten different people or 101 or whatever it was, nations, they didn’t tell you this stuff. This must have come from your government and I also want to ask you if – are we not moving past the status quo? Because you know, you keep on talking about us having to prove our aboriginal title. We have to prove our aboriginal rights, they haven’t been proven? I thought we’re recognizing rights as defined by our people, that we don’t have to go back to court, that needs to be stated in that document, not going back to court because if we keep on going back to court, we’re going to tie up the court system and that doesn’t help our nations.”

The paper Judy Sayers was referring to is a federal document publicly released only a day before on September 10, 2018 entitled “Overview of a Recognition and Implementation of Indigenous Rights Framework”. This document is a revision of a previous version of the “Framework” released in July 2018. [See text of federal “Overview” on page 18 of this newsletter]

Exchange of Letters Between Indigenous Lawyers & Trudeau Government

In fact, the federal “Overview of a Recognition and Implementation of Indigenous Rights Framework” was released on September 7, 2018, to an “Indigenous Legal Expert Group” via Indigenous lawyer Mary Ellen Turpel-Lafond.

Accompanying the federal “Overview” document was a September 7, 2018, response letter from Minister Bennett to an August 21, 2018, letter sent to Prime Minister Justin Trudeau from Indigenous lawyers; Wilton Littlechild, Ed John and Mary Ellen Turpel-Lafond. [See full text of letter on page 9 of newsletter]

The Indigenous lawyer’s letter to the Prime Minister of August 21, 2018 raised serious concerns about the federal “Engagement Process” and the control of the drafting of documents by Senior federal officials. It called for a “reset” of the process the letter specifically made the following points to the Prime Minister:

“The engagement process since rolled out has fallen short…From the viewpoint of reflecting existing human rights, Treaties, constitutional law, and international norms and principles, the process does not align with the commitment you described. The substance of positions and approaches in the words, documents and processes which were reviewed by Indigenous legal experts over the past five months, were considered by the experts convened as legally inaccurate, short-sighted, and reflecting ongoing bureaucratic control and constraint of rights.

Pressing ahead in this manner will result in setting back the work of recognition and implementation of Indigenous rights and Treaties. … We urge you to take a look at the current path, and reset. This work needs to be placed on a proper legal, international and domestic human rights and constitutional footing. The Minister of Justice and Attorney General whom you have also mandated on this initiative must be engaged to provide the legal advice and direction for the Crown. We note that under section 4 of the Department of Justice Act, the Minister is the legal advisor to the Government and she must “see that the administration of public affairs is in accordance with the law.”

Absent this, our concern is that the current initiative will only give rise to more litigation as it does not appear to be “in accordance with the law” of Canada. If this were to occur, we feel the initiative as reflected in current federal documents will undermine the intent of the Framework you contemplated on February 14, 2018.

…With greatest respect, we urge you to revise this particular form of “engagement” process and place it on a proper path. We are most willing to engage directly with your Ministers, whom you have mandated, including the Justice Minister and Attorney General and senior legal officials on these matters.”

Prime Minister Justin Trudeau did not respond to the August 21, 2018, letter from the Indigenous lawyers, instead Crown-Indigenous Relations Minister, Carolyn Bennett, sent a response letter on September 7, 2018, to Indigenous lawyer’s Wilton Littlechild, Ed John and Mary Ellen Turpel-Lafond, thanking them on behalf of the Prime Minister for their “extremely valuable observations and recommendations”. [for full text of letter see page 13 of this newsletter]

Minister Bennett also responded:

“We want to put behind us the requirement for First Nations, Inuit, and Metis to claim their rights and then prove their rights in court. We want to replace the policies, attitudes, and language of the past with a legal and policy framework based on the recognition of Indigenous rights, respect, cooperation, and partnership.

As you know, this has been a whole-of-government project, with weekly meetings at the deputy minister level that included Justice Canada.

We agree that the recognition of rights cannot be contingent on the conclusion of a negotiation process. Indigenous rights are inherent and should be recognized at the outset. The Government of Canada must work together with First Nations, Inuit, and Metis to determine how to affirm and implement those rights.

The fundamental connection between Indigenous Peoples and the land must be an important component of this Framework. We must make space for Indigenous Peoples to be recognized as nations and to exercise jurisdiction. We must fulfill the promise of all treaties, both historic and modern. Rights can exist independently from Crown recognition, and space must be made for Indigenous nations and collectives to immediately occupy certain jurisdictions. We must be accountable for implementing treaties and recognizing rights. These are foundational pillars of the Framework and pillars on which we agree.

… I am pleased to share with you a revised engagement document based on your feedback and that of Indigenous technicians, leadership, and government departments, including the invaluable input of Justice Canada. Officials will be distributing the document to First Nation, Inuit, and Metis partners who have been involved in the engagement sessions and provincial and territorial governments. The document will also be posted online.”

While Minister Bennett’s letter seems to address some of the concerns expressed by the Indigenous lawyers in their August 21, 2018, letter, the revised federal “engagement document” that came with the Minister’s letter on September 7, 2018 doesn’t — to paraphrase Judy Sayers — match the Minister’s words. The Trudeau government is moving full steam ahead!

Conclusion

The September 10, 2018, federal document “Overview of a Recognition and Implementation of Indigenous Rights Framework” has been analyzed and a summary released by the Indigenous Activists Networks Defenders of the Land, Truth Campaign, Idle No More. [See page 15 of the newsletter].

During the second day of the AFN National Forum Indigenous lawyer Willie Littlechild informed the delegates that the Indigenous Lawyers Expert Group had sent Drafting Instructions to the federal government and other parties (presumably the “other parties” are the Metis National Council and the Inuit Tapiriit Kanatami, since the “Recognition Framework” legislation is to be applied to First Nations, Metis and Inuit, despite the federal so-called “distinctions based” approach).

Following her appearance at the AFN National Forum, Crown-Indigenous Affairs Minister Carolyn Bennett has reportedly said to media that her government wants to introduce the “Recognition Framework” into Parliament before Christmas break and that the Standing Committee on Indigenous Affairs could hold hearings in the New Year. Minister Bennett also said to media that her government wold consider amendments to the “Recognition Framework” legislation at the Standing Committee on Indigenous Affairs.

The problem with the federal legislative process is the Liberal majority government controls the House of Commons process and can ram through the version of the law they want to fit with their version of the federal Termination Plan.

The AFN has said they will hold their Special Chiefs’ Assembly on December 4-6, 2018, so the AFN and federal calendars appear to coincide for introduction of a “Recognition Framework” Bill in early December, probably with First Nation, Metis and Inuit cheerleaders publicly supporting the Bill and the Trudeau government.