Indigenous Self-Determination and Land Rights: Confronting Trudeau’s Fake Reconciliation Promises

by First Nations Strategic BulletinJanuary 3, 2018
 

The passage of the Winter Solstice is traditionally a time of annual reflection and renewal. I’ve been thinking about the façade the Trudeau government continues to perpetrate on Indigenous Peoples and the Canadian public regarding the Liberal’s false “Nation-to-Nation” relationship and “reconciliation” processes.

As Canada’s 150th celebration thankfully draws to a close let’s recall the history of this country from an Indigenous perspective and what the Trudeau government now states it will “reconcile” in a new “Nation-to-Nation” relationship in a yet to be announced a “recognition of rights” framework.

First of all, Canada, including the Supreme Court of Canada, continues to rely on the outdated, racist, colonial concept of the Christian Doctrine of Discovery as the basis for Crown sovereignty and territorial claims, despite recommendations from the 1996 Royal Commission on Aboriginal Peoples (RCAP) and the 2015 Truth and Reconciliation Commission (TRC) to stop relying on this doctrine.

Once French and English settlers outnumbered the Indigenous Nations in the mid-1800’s, the history of Canada has been about the theft of Indigenous lands and resources and the denial of Indigenous rights and jurisdiction through racist white supremacist colonization. This was entrenched in Canada’s first constitution the British North America Act of 1867, including section 91.24, which is the “head of power” where the federal Parliament continues to presume the right to unilaterally pass federal laws over “Indians and lands reserved for the Indians”.

This is the constitution where the Indian Act comes from!

Since confederation in 1867, the federal government has been mostly run by the Liberal Party, although the Conservative Party does get into power from time to time, but the Liberal Party is known by many as the “natural governing party of Canada”.

It was a Liberal Prime Minister, Alexander Mackenzie, who led the government in 1876 when—in Canada’s original Termination Plan—the Indian Act, was passed to manage reserves, define membership and local governance until “Indians” were assimilated into the general Canadian population.

However, the Conservative government of John A. Macdonald was re-elected in 1878 to take over implementation of the Indian Act and both parties have done so through successive federal governments since confederation.


The Indian Act was passed to manage reserves... until “Indians” were assimilated into the general Canadian population.

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After about a hundred years of confederation it was also a Liberal government led by Prime Minister Pierre Trudeau who proposed the 1969 White Paper on Indian Policy to terminate Indian rights, which the government had to publicly withdraw in 1971 due to widespread Indian opposition. But in my opinion the tenets of the White Paper remains the federal Liberal Plan implemented by successive Liberal Leaders, including Pierre’s son, Prime Minister Justin Trudeau.

In 1973, Prime Minister Pierre Trudeau imposed the modern federal land claims policies to extinguish Indian land rights. It is still in use today albeit somewhat amended, with the goal being to extinguish Aboriginal Title, despite recent court decisions recognizing Aboriginal Title and condemnation of federal extinguishment policy from various United Nations Human Rights Bodies.

Prime Minister Justin Trudeau is still pursuing the de facto extinguishment of Aboriginal Title through his father’s federal Comprehensive Claims Policy.

During negotiations in 1981, Canada’s new draft constitution first included a section referring to Aboriginal and Treaty rights, but then was deleted at the request of the Premiers of Alberta and Saskatchewan. It was pressure from Indigenous Peoples and sectors of Canadian civil society who succeeded in getting the Prime Minister, the Premiers and Territorial Leaders to accept the final wording of section 35: “The existing aboriginal and treaty rights of Aboriginal peoples are hereby recognized and affirmed”.

The word “existing” had been added to the final version of the section 35 clause from the previous version of the Aboriginal and Treaty rights clause before it was deleted during negotiations between the Prime Minister and Premiers in 1981.

The Supreme Court of Canada in its 1990 Sparrow decision interpreted section 35 as meaning Aboriginal and Treaty rights that “existed” when the Constitution Act 1982, became law on April 17, 1982, are “recognized and affirmed” and not the rights that were previously extinguished by the Crown.

Under Canadian law the courts have held that pre-1982, the Crown could unilaterally extinguish Aboriginal rights. The 1990 Sparrow decision sets out a legal test for Crown governments asserting that an Aboriginal right has been extinguished. The Crown has to show the extinguishment was “clear and plain”.


Prime Minister Trudeau is still pursuing the de facto extinguishment of Aboriginal Title.

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The Supreme Court of Canada has not yet ruled if self-government is an Aboriginal right within the meaning of section 35 in Canada’s constitution.

In 1995, taking advantage of the legal and political uncertainty of section 35 rights, it was a Liberal Prime Minister, Jean Chretien, who co-opted the term “inherent right to self-government” and imposed an Aboriginal Self-Government Policy that essentially converts Indian Act Bands into municipal type governments at the bottom of Canada’s Federation through a “harmonization of laws” process, placing the federal and provincial governments jurisdiction and laws on top of “self-governing” communities.

The federal self-government policy clearly states that “The inherent right of self-government does not include a right of sovereignty in the international law sense”. This is the policy hundreds of Indian Act Band Councils are now funded to negotiate under to “go beyond the Indian Act” and this is the policy the recent Bill C-61 Anishinabek Nation Education Agreement Act was negotiated under to become federal law.

Despite all of Prime Minister Justin Trudeau’s rhetoric of a “Nation-to-Nation” relationship and a “reconciliation” process, the Liberal Termination Plan developed previously by Prime Minister Pierre Trudeau and then Prime Minister Jean Chretien remains based on the twin goals of 1) assimilating Indigenous First Nation Peoples through the continued application of the Indian Act (as amended) and related First Nations legislation such as the First Nations Fiscal Management Act and the First Nations Land Management Act, until status Indians marry out and become legally extinct; or agree to opt out of the Indian Act by 2) Terminating, their pre-existing sovereignty and land rights by getting Indigenous First Nation Peoples to consent to negotiate agreements through the federal land claims and self-government policies, which are based on federal one-sided interpretations of section 35 Aboriginal and Treaty rights and include seriously prejudicial federal pre-conditions to negotiations.

It seems the previous federal pre-conditions from the land claims and self-government policies have now been re-written into the 10 federal principles for Indigenous Relationships released in July 2017, which are also now being used by the Trudeau government for negotiations, agreements and funding.

Right of Indigenous Self-Determination Being Hijacked by Trudeau

The most important right recognized in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is the right of Indigenous Peoples to self-determination. This is now enshrined in Article 3 of UNDRIP, which replicates Article 1(1) of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) and makes it clear that this right applies to Indigenous Peoples.

The right to self-determination is the overarching umbrella right; much of its essence is then spelled out further in UNDRIP, in regard to land rights, governance and Indigenous free prior informed consent (FPIC).

Indigenous FPIC and therefore Indigenous decision-making power regarding access to their lands and resources has to be recognized if UNDRIP implementation is real.

The federal government’s “10 Principles” do not do that. Rather they attempt to lessen and undermine those fundamental principles of international law.

The Federal “10 Principles” are based on the racist, colonial Christian Doctrine of Discovery.

In the Federal “10 Principles” Canada does not refer to, but continues to rely on its Constitution Act 1867, which was unilaterally passed by British parliament as the British North America Act 150 years ago and enshrines these colonial systems and structures and the division of powers between the federal and provincial governments, leaving no room for recognition of equal Indigenous jurisdiction and power, absent fundamental (constitutional) reforms, which are not contemplated in the “10 Principles”.

10 Principles respecting the Government of Canada’s relationship with Indigenous peoples

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.
2. The Government of Canada recognizes that reconciliation is a fundamental purpose of section 35 of the Constitution Act, 1982.
3. The Government of Canada recognizes that the honour of the Crown guides the conduct of the Crown in all of its dealings with Indigenous peoples.
4. The Government of Canada recognizes that Indigenous self-government is part of Canada’s evolving system of cooperative federalism and distinct orders of government.
5. The Government of Canada recognizes that treaties, agreements, and other constructive arrangements between Indigenous peoples and the Crown have been and are intended to be acts of reconciliation based on mutual recognition and respect.
6. The Government of Canada recognizes that meaningful engagement with Indigenous peoples aims to secure their free, prior, and informed consent when Canada proposes to take actions which impact them and their rights, including their lands, territories and resources.
7. The Government of Canada recognizes that respecting and implementing rights is essential and that any infringement of section 35 rights must by law meet a high threshold of justification which includes Indigenous perspectives and satisfies the Crown’s fiduciary obligations.
8. The Government of Canada recognizes that reconciliation and self-government require a renewed fiscal relationship, developed in collaboration with Indigenous nations, that promotes a mutually supportive climate for economic partnership and resource development.
9. The Government of Canada recognizes that reconciliation is an ongoing process that occurs in the context of evolving Indigenous-Crown relationships.
10. The Government of Canada recognizes that a distinctions-based approach is needed to ensure that the unique rights, interests and circumstances of the First Nations, the Métis Nation and Inuit are acknowledged, affirmed, and implemented.

This is also reflected by the fact that the federal government stated that these “10 Principles” are to guide the federal Working Group of Ministers on the Review of Laws and Policies Related to Indigenous Peoples, but it is now clear these “10 Principles” are also being used in negotiations, agreements & funding such as the Education Funding Agreements for Elementary & Secondary Education.

A Policy Co-Development Team comprised of the Assembly of First Nations, National Indian Education Council and Indigenous and Northern Affairs Canada (now called the Department of Indigenous Services) prepared a November 15, 2017, draft “version 1.14” of a Co-Developed (AFN-INAC) Proposal to the federal Cabinet, which notes that “In its current form, [BC] First Nation Education Steering Committee does not agree with this document.”

However, page 3 of this version of the Cabinet Policy Proposal: Transforming First Nations Elementary and Secondary Education clearly states as “context”:

The co-development process for developing this proposal is part of an early effort to advance fundamental change. These efforts must be guided by the Principles respecting the Government of Canada’s Relationship with Indigenous peoples… [emphasis added]

Self-government agreements recognize the inherent right to self-government for First Nations governments and provides a vehicle for the transfer of funds from the Government of Canada.

This draft Cabinet proposal on education funding agreements indicates that the federal “10 Principles” are being used by the federal government as preconditions for “Indian” programs and services and the federal government is still using Jean Chretien’s 1995 so-called “Inherent Right” municipal self-government policy to convert Indian Bands into ethnic municipalities and thereby supporting Canada’s position that Indigenous First Nation Peoples are Canadian “minorities” instead of “Peoples” within the meaning of international law.

As the late Arthur Manuel put it in FNSB Volume 13, Issues 1-7, Jan.-July 2015:

Indigenous Peoples must decide if we are independent sovereign peoples with a right to self-determination or if we want to be a minority under Canada’s domestic laws. I raise this broader focus because it is through this lens that we can see how the International Covenant on Civil and Political Rights (ICCPR) and the United Nations Human Rights Committee function. The international covenants actually provide Indigenous Peoples with the means to challenge Canada’s colonial settlement laws.

On the other hand, Canada takes the position that Indigenous Peoples exercised their right to self-determination [Article 1 ICCPR] as Canadians. Any rights we have are under Article 27 [ICCPR] as a minority with ethnic, religious and linguistic rights within Canada…Canada’s position is that only Canada collectively has the right to exercise self-determination despite the fact much of their territories is actually on unsettled Aboriginal lands.

Indigenous Peoples must be consistent on being independent peoples with our own right to self-determination and not buy into being domesticated under Canada’s political, economic, social and cultural systems. That is the big issue question that Article 1 in the International Covenant on Civil and Political Rights asks to Indigenous Peoples. Are Indigenous Peoples in Canada entitled to self-determination or are we simply a Canadian minority?

Indigenous Self-Determination Begins with Decision-Making

Since forming government in 2015, Prime Minister Justin Trudeau has borrowed a page from his Liberal predecessors and operated in a non-transparent top-down approach using the Assembly of First Nations, the Provincial-Territorial Organizations and local (largely Indian Act) Chiefs to get consent to the federal changes to policy, law and structure.

The real rights holders are excluded from the Federal-AFN decision-making process. The real rights holders are the Indigenous First Nations individuals, families, communities and Nations.

The Trudeau government distinguishes between “non-self-governing” Indian Act Bands and Aboriginal groups who have signed Termination Agreements (Modern Treaties & Self-Government Agreements). In either category it is the federal government controlling who it recognizes as legitimate Indigenous representatives with authority for making decisions on behalf of the “non-self-governing” Indian Act Bands or the compromised “self-governing” groups under Modern Treaties and Self-Government Agreements.

Article 18 – UNDRIP

As far as I know, there hasn’t been a review of the federally recognized “Indigenous Representative Organizations” mandates and structures by Indigenous First Nation Peoples since these modern organizations were formed from 1969 on to fight against the 1969 White Paper on Indian Policy.

The AFN and PTO’s are Chiefs’ organizations controlled by Ottawa though “core” and “project” funding, which is arguably why there hasn’t been critical analysis from these Chiefs’ organizations about the federal “10 Principles” for Indigenous Relationships, the lack of transparency by the federal law and policy review and the dissolving of INAC into two new federal departments.

It is long past time that Indigenous First Nation Peoples start organizing locally, regionally, nationally and internationally as Article 18 of UNDRIP provides and start demanding Crown recognition of the Indigenous representatives chosen by the People instead of Indian Act Band Councils, regional Chiefs’ organizations and the AFN structure. All of these bodies from the band office to the AFN in Ottawa are controlled by the federal government in Ottawa.

Article 18 of UNDRIP provides that:

Article 18
Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions. [emphasis added]

As it stands now the Canadian legal and political system recognize the Indian Act Chief and Council as the legal decision-makers and the primary instrument of decision-making is the Band Council Resolution.


It is long past time that Indigenous First Nation Peoples start organizing locally, regionally, nationally and internationally and start demanding Crown recognition of the Indigenous…

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The UNDRIP standard sets out that Indigenous Peoples through their own procedures and institutions should choose Indigenous representatives. I would suggest looking to your own pre-Indian Act customs, traditions and laws as a guide to organize to develop and implement your own local and Nationhood level decision -making to develop a self-determination plan outside of the Indian Act or federal “rights recognition” tables, policies or laws.

In conclusion, I would also suggest Indigenous Networks such as the Defenders of the Land and Idle No More have some minimal capacity to help develop the critical analysis of federal policy and help organize public education forums to assist in developing strategies and actions to implement UNDRIP and international Human Rights law to support the right of Indigenous self-determination.

If Indigenous grassroots Peoples don’t organize and take action on-the-ground the federal government will likely succeed in its plan to re-colonize Indigenous communities and Nations through its planned federal “recognition of rights” framework—currently being prepared behind closed doors—until the Trudeau government is ready to release it either before the 2019 federal election or soon after the election.

This article was originally published in the First Nations Strategic Bulletin, Volume 15, Issues 11-12, Nov-Dec 2017. It has been re-published on IC with permission.