FEDERAL-FIRST NATIONS TERMINATION PLAN & B.C. IMPLEMENTATION

Presented By

Russell Diabo

May 2015

Post-JBNQA: Original 6 Actively Extinguishing

Groups in 1990Nishga Council for Yukon IndiansDene-MetisInuit Tapirisat of CanadaConseil Attikamek-MontagnaisLabador Inuit Association

Comprehensive Claims Settlements

Presentation Overview

What is the Termination Plan?How is Termination Plan

being Implemented in BC?What Can You Do?

What is the Termination Plan?

Canadas Termination Plan

Termination means the ending of the pre-existing sovereign status & rights of Indigenous Nations through federal Indian Act legislation (as amended), and/or coercion of First Nations into Comprehensive Land Claims and/or Self-Government Final Agreements that convert First Nations into municipalities, their reserves into private property and extinguishment of their Inherent, Aboriginal and Treaty Rights.

TERMINATION PLAN

The Harper governments First Nations Termination Plan is being implemented through two tracks: 1) a Modern amended Indian

Act; and/or through; 2) Self-Government &

Comprehensive Claims Final Agreements.

TERMINATION PLAN= KEY GOALS/CLAUSES

Getting consent to the extinguishment (modification) of Aboriginal Title;

Getting consent on the legal release of Crown liability for past violations of Aboriginal Title & Rights;

Getting consent to the elimination of Indian Reserves by accepting lands as private property (fee simple);

Getting consent to removing on-reserve tax exemptions;

TERMINATION PLAN= KEY GOALS/CLAUSES

Getting consent to respect existing Private Lands/Third Party Interests (and therefore alienation of Aboriginal Title territory without compensation);

Getting consent to be assimilated into existing federal & provincial laws;

Getting consent to application of Canadian Charter of Rights & Freedoms over governance & institutions in all matters (individual vs. collective rights);

Getting consent to program funding on a formula basis being linked to own source revenue;

Chrtien and Trudeau

1969 WHITE PAPER ON INDIAN POLICY

UBCIC Founding Meeting 1969

Frank Calder13

CONSTITUTION ACT 1982

Constitution Act 1982On April 17, 1982, the Constitution Act

1982 became law. Section 35 of the new constitution

recognizes and affirms the existing aboriginal and treaty rights of aboriginal peoples.

A series of First Ministers Conferences were held in 1983, 1984, 1985 and 1987, to identify & define the scope and content of sec. 35, but these constitutional conferences ended in failure.

1983 Amended Section 35

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Mtis peoples of Canada.

(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.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

Proposed Distinct Order of Indigenous

Government

Federal Powers Section 91

First Nations Powers

Section 35

Provincial PowersSection 92

Constitutional Colonization vs. Decolonization

Sec. 91.24 Sec. 35

Supreme Court of Canada:The Judges

Legal Tests for Aboriginal Rights & Title

SCC Aboriginal Rights Test

R. v Van Der Peet (1996)

The right must involve an activity that was a practice, tradition or custom [that] was a central and significant part of the [Aboriginal] societys distinctive nature.

The activity must have existed prior to contact with European settlers.

The activity, even if evolved into modern forms, must be one that continued to exist after 1982, when the Constitution Act was passed.

1997 Delgamuukw Decision on Aboriginal Title

In Delgamuukw, the Supreme Court of Canada elaborated on nature of Aboriginal title:

The right to exclusive use and occupation of the land.

The right to choose to what uses the land can be put, subject to the ultimate limit that those uses cannot destroy the ability of the land to sustain future generations of Aboriginal peoples.

Lands held pursuant to Aboriginal title have an inescapable economic component.

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2004 - Haida at Supreme Court of Canada

2014 - SCC Tsilhqotin Decision on Aboriginal Title

2014 Tsilhqotin Decision: Aboriginal Title vs. Land ClaimsRe-Affirms the principles & tests in

previous SCC decisions, including Delgamuukw and Haida decisions.

Sets out a framework for progressive recognition of Aboriginal Title from assertion to establishment.

Maintains Doctrine of Discovery in finding that the radical or underlying title to all the land acquired by Crown.

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2014 Tsilhqotin Decision: Aboriginal Title vs. Land ClaimsSummary re: Proof of Aboriginal Title. [50] The claimant group bears the onus of

establishing Aboriginal title. The task is to identify how pre-sovereignty rights and interests can properly find expression in modern common law terms. In asking whether Aboriginal title is established, the general requirements are: (1) "sufficient occupation" of the land claimed to establish title at the time of assertion of European sovereignty; (2) continuity of occupation where present occupation is relied on; and (3) exclusive historic occupation.

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2014 Federal Response to Tsilhqotin: Termination!

In September 2014, the federal Minister of Aboriginal Affairs, Bernard Valcourt issued an interim policy entitled Renewing the Comprehensive Land Claims Policy: Towards a Framework for Addressing Section 35 Aboriginal Rights.

The interim policy is merely a restatement of previous federal section 35 policies regarding extinguishment of Aboriginal Title and municipalization of Indian Bands.

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Eyford Report Ministerial Special Representative on

Comprehensive Claims Douglas Eyford

appointed Ministerial Special Representative in Sept. 2014.

Eyford Engagement process announced Sept. 2014.

Engagement Report with 47 Recommendations released on April 2, 2015.

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Douglas Eyford

EYFORD REPORT

14 Comprehensive land claims negotiations outside of British Columbia.8 Trans-boundary (NWT &

Nunavut) negotiation tables.53 Negotiation tables in the

British Columbia treaty process.

Comprehensive Land Claims & Self-Government Tables

Comprehensive Claims & Self-Government

Negotiations

Cash & Land

Cash & Land: The Comprehensive Claims Formula: $25,600 per head 9.3 Hectares (23 acres) per head

Extinguishment of Aboriginal Title Legal Techniques

certainty and finality;modified and released;

andNon-assertion of rights.

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UN Human Rights Committee Recommendations (1999)

The Committee recommends that the practice of extinguishing inherent Aboriginal rights be abandoned as incompatible with article 1 of the Covenant.

UN Human Rights Committee Recommendations (1999)The Committee endorses

the recommendations of the RCAP that policies which violate Aboriginal treaty obligations and extinguishment, conversion or giving up of Aboriginal rights and title should on no account be pursued by the State Party.

United Nations Declaration on the Rights of Indigenous

Peoples (2007)

Selected Articles of UNDRIP

Article 3 Right to Self-Determination. Article 10 No forced removal w/o FPIC. Article 19 FPIC required before

legislation/administration measures. Article 26 Rights to lands, territories, resources. Article 27 Fair process jointly developed to

adjudicate rights to lands, territories, resources. Article 32 FPIC required for and development

affecting lands, territories, resources. Article 37 Rights from Treaties, agreements,

constructive arrangements.

Implementing the Termination Plan in B.C.

BCTC Process & Non-Treaty Approaches

BCTC Negotiations

BCTC - 6 Stage Process to Termination Agreements

STAGE ONE: Statement of IntentSTAGE TWO: Preparation for NegotiationsSTAGE THREE: Negotiation of a

Framework AgreementSTAGE FOUR: Negotiation of an

Agreement-in-PrincipleSTAGE FIVE: Negotiation to Finalize a

TreatySTAGE SIX: Treaty Implementation

First Nations Summit Created by Federal & BC Legislation FIRST NATION - means an aboriginal governing

body, however organized and established by aboriginal people within their traditional territory in British Columbia, that has been mandated by its constituents to enter into treaty negotiations on their behalf with Her Majesty in right of Canada and Her Majesty in right of British Columbia;

SUMMIT - means the body that is established to represent the First Nations in British Columbia that agree to participate in the process provided for in the Agreement to facilitate the negotiation of treaties among first nations, Her Majesty in right of Canada and Her Majesty in right of British Columbia.

First Nations SummitTask Group

ED JOHN CHERYL CASIMER ROBERT PHILLIPS

First Nations Common Table

Common Table: in 2007 process established under BCTC to address common (policy) obstacles to progress

6 key topics identified:1. Recognition/certainty,2. Constitutional status of lands,3. Governance,4. Co-Management of Traditional Territory,5. Fiscal Relations, ie., OSR and Taxation, and6. Fisheries

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Federal Response to First Nations Common Table - 1997

Federal Response: mainly negative1. Insist on certainty, no to recognition, stay with

existing models, but willing to explore wording;2. Constitutional status of lands not willing to

change federal mandates;3. Governance concurrent law model and

harmonization, not exclusive FN jurisdiction,4. Co-management area and resource specific

solutions, third party interests need to be balanced;

5. Fiscal relations, ie., OSR and taxation no change

6. Fisheries no but will explore fish arrangements

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BC Government Response to First Nations Common Table

BC Response: two avenues:1. Re certainty, recognition, and

constitutional status of lands complicated, more study required not willing to change federal mandates;

2. Re governance, co-management, fiscal relations, ie., revenue sharing and taxation, fisheries address in specific negotiations at individual tables

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Secwepmec-BC Reconciliation [Template]

Framework AgreementGets Secwepemc Bands to respect

existing Private Lands/Third Party Interests within Secwepemec Aboriginal Title Territory.

Gets Secwepemc Bands to accept (to be assimilated into) existing provincial order of government.

Gets Secwepemec Bands to accept application of BC laws over Secwepemc lands & resources.

Turning the Tables: What Can You Do?

Previous Effort at CCP Reform

Delgamuukw Implementation Strategic Committee Six point strategy:1. Public education,2. Political negotiation/pre-litigation

strategy,3. Litigation,4. Policy development,5. Direct action/exercise of Aboriginal

rights, and6. International campaign

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Inform Yourself! STEP ONE: INFORM YOURSELF. Find out if your

community is at a Termination Table. Find out what position (if any) your Chief &

Council, Tribal Chair, Heads of First Nation Organizations, AFN Regional Vice-Chief, has taken on the federal First Nations Suite of Legislation and/or Termination Policies.

Get more information and read it. If you dont understand it find someone in your community who can help you understand it. Various First Nation organizations are giving out info on the threats these new federal laws/policies pose for First Nations peoples.

Organize Yourself! STEP TWO: ORGANIZE YOURSELF AND OTHERS.

Start networking and dialoging among family members, other concerned community members and other First Nation citizens, communities and organizations about the impacts of the Termination legislation and/or policies.

Form working-groups, distribute the info by photocopying, faxing, e-mail or social media if you have access to it. Think about events to make your views known to the wider public, maybe fund-raisers to cover costs of activities.

Link up with non-First Nations allies/supporters where possible!

Prepare Material for Media & Public

STEP THREE: PREPARE MATERIALS FOR MEDIA & PUBLIC DISTRIBUTION. Try to get someone with media or public relations experience involved in helping to develop materials, or use materials and advice from other First Nations peoples and organizations. Prepare positive messages to counter the negative federal smear campaign underway; monitor and respond to negative and/or erroneous media reports; identify key spokespeople; develop media contacts; hold press briefings/conferences; dont forget to contact both aboriginal and non-aboriginal media to make yourself heard.

Take Action!STEP FOUR: TAKE ACTION. The

exercise and assertion of Aboriginal title is at the heart of the 6-point strategy. Being a collective right that lies with the nation and the community, it is up to the people themselves to initiate actions which reflect the exercise of their rights to, and jurisdiction over, their land and resources.

Take Action!When First Nations exercise their

Aboriginal title and rights on the ground, it is likely that provincial and/or federal governments will drag First Nations, their communities, and their citizens, into court, probably through injunction proceedings.

The first step is to organize the people. This starts with the community, but if possible, First Nation communities should try and work together with other communities from the First Nation at the level of a Tribal Council, or similar Tribal organization.

Take Action! The next step involves planning and

preparation, including the seeking authority from the Community or nation, physical setting, communications, media relations, security, 3rd parties, etc.

READ: THE ANATOMY OF A COURT INJUCTION: A PRIMER FOR LAND PROTECTORS -http://nationsrising.org/injunctions-what-land-protectors-need-to-know/

CONCLUSION For First Nations not at a negotiating table,

Canada is socially engineering First Nations into accepting assimilation-termination under an amended Indian Act & funding agreements.

Canadas war on First Nation rights is heating up as First Nations are forced to respond politically/legally to aggressive development of lands/resources sponsored by the federal and provincial governments.

For the first time in 40 years or so, First Nations & their organizations will have to reorganize due to major federal funding cuts & caps. First Nation Peoples will have to engage with their leaders to redefine their struggle for Aboriginal/Treaty rights and pull out of Termination Tables/Processes.

Modernized Indian ActOmnibus Bills: C-38 & C-45 First Nations Financial Transparency Act Family Homes on Reserves and Matrimonial

Interests or Rights Act Safe Drinking Water for First Nations Act Indian Act Amendment and Replacement

Act First Nations Election Act First Nation Education Act (Pending) First Nation Private Property Ownership Act

(Pending)

FEDERAL-FIRST NATIONS TERMINATION PLAN & B.C. IMPLEMENTATIONPost-JBNQA: Original 6 Actively Extinguishing Groups in 1990Comprehensive Claims SettlementsPresentation OverviewWhat is the Termination Plan? Canadas Termination PlanTERMINATION PLANTERMINATION PLAN= KEY GOALS/CLAUSESTERMINATION PLAN= KEY GOALS/CLAUSESChrtien and Trudeau1969 WHITE PAPER ON INDIAN POLICYUBCIC Founding Meeting 1969Frank CalderCONSTITUTION ACT 1982Constitution Act 19821983 Amended Section 35Proposed Distinct Order of Indigenous GovernmentConstitutional Colonization vs. DecolonizationSupreme Court of Canada:The JudgesLegal Tests for Aboriginal Rights & TitleSCC Aboriginal Rights TestR. v Van Der Peet (1996)1997 Delgamuukw Decision on Aboriginal Title2004 - Haida at Supreme Court of Canada2014 - SCC Tsilhqotin Decision on Aboriginal Title2014 Tsilhqotin Decision: Aboriginal Title vs. Land Claims2014 Tsilhqotin Decision: Aboriginal Title vs. Land Claims2014 Federal Response to Tsilhqotin: Termination!Eyford Report Ministerial Special Representative on Comprehensive ClaimsEYFORD REPORTSlide Number 31Comprehensive Land Claims & Self-Government TablesComprehensive Claims & Self-Government NegotiationsCash & LandExtinguishment of Aboriginal Title Legal TechniquesUN Human Rights Committee Recommendations (1999)UN Human Rights Committee Recommendations (1999)United Nations Declaration on the Rights of Indigenous Peoples (2007)Selected Articles of UNDRIPImplementing the Termination Plan in B.C.BCTC NegotiationsBCTC - 6 Stage Process to Termination AgreementsFirst Nations Summit Created by Federal & BC LegislationFirst Nations SummitTask GroupFirst Nations Common TableFederal Response to First Nations Common Table - 1997BC Government Response to First Nations Common TableSecwepmec-BC Reconciliation [Template] Framework AgreementTurning the Tables: What Can You Do?Previous Effort at CCP ReformInform Yourself!Organize Yourself!Prepare Material for Media & PublicTake Action!Take Action!Take Action!CONCLUSIONModernized Indian Act