New DIA Policy is NOT Self-Government!


McGill Daily
September 25, 1995
M-J Milloy

The land-claim was stalled in the provincial courts and logging companies were preparing to move into the last remaining stands of white and red pine. On a cold fall day in 1989, Chief Gary Potts led the Teme-Augama Anishnabai (TAA), "the Temagami First Nation", onto a blockade of the main logging road in northern Ontario.

The community was adamant that they had no other method to protect n'Daki Menan, "our land." Although the Federal government had recognised the validity of the TAA claim in 1952, they still only had a small thousand-acre island reserve in the centre of Lake Temagami. For the last fifty years they had watched as the forest was irretrievably lost to loggers, and their legal appeal slowly ground through the Ontario court system. With hunting and trapping impossible in denuded forests, traditions were being forgotten as people turned to welfare to survive.

As Potts recently wrote in the 1995 anthology of essays on Aboriginal sovereignty, Nation to Nation, the pre-eminent issue that they were taking to the barricades to protect was not a land claim, it was not social welfare, and it was not an environmental crusade. They were fighting to maintain their political sovereignty.

"The logging companies wanted to create a desert of our motherland. The environmentalists wanted to create a zoo of our motherland," he wrote in Nation to Nation.

The crucial issue, for Potts and the rest of the Temagami First Nation, was whether "citizens living elsewhere... have the right to determine what the people living in n'Daki Menan can and cannot do on their land?"

In hundreds of Aboriginal communities across Canada, the issue of political self-determination is of paramount importance. Although each community has its own unique set of social, economic and cultural problems, they all flow from a common attack by non-native governments on their national sovereignty.

For many years, Canadian federal policy has been an integral part of this attack. Successive legislation " particularly The Indian Act " has outlawed traditional political and economic structures in Aboriginal communities.

Last month, Ron Irwin, the Federal Minister of the Department of Indian Affairs and Northern Development announced a broad new policy designed to allow Aboriginal communities to implement self- government. The proposal was passed as official government policy, but still has to be translated into specific legislation. Although this new policy hopes to "allow Aboriginal communities to govern themselves" it has been harshly criticised by both national native organisations and individual First Nations.


Announced on August 11, the new self-government policy is the most important Aboriginal policy document released in the last 30 years. It attempts to set out how the inherent right to Aboriginal self- government "enshrined in section 35 of the Constitution" will be implemented.

The document is another in a long series of political papers designed to define the relationship between the native and non-native inhabitants of Canada. In 1763, the British Royal Proclamation set out a key principle: native nations were sovereign nations, and the Crown "and later the Federal government of Canada" must enter into treaties with them before Canada could assert control over their territory.

Under this principle, treaties were made by Canadian federal authorities with native nations from Newfoundland to the western Alberta border. In return for ceding sections of their land to the Crown, native peoples received certain treaty rights, such as freedom from taxation, hunting rights and the right to education provided by the Crown. These are titled the Crown's fiduciary duty. "[Aboriginal nations] recognised a nation-to-nation agreement, defining the specific terms of peaceful co-existence, was being arranged," wrote Georges Erasmus, a Dene leader from the Yukon and former head of the Assembly of First Nations (AFN), in the book Nation to Nation.

Although land was being ceded to the Crown, native nations retained sovereignty of their own land.

Rather than being interpreted as nation to nation pacts, however, these agreements have been continually ignored, misinterpreted and violated by generations of Canadian leaders.

"Hunting, fishing, trapping and gathering sections that were designed to protect the native way of life have continued to be changed by Canadian regulations. In many cases, First Nations are still waiting to have the land entitlement of one-hundred year old treaties fulfilled," wrote Erasmus.

Treaty violations were the root cause of the recent native blockade at Ipperwash in Ontario. In British Columbia, the lack of any treaties with First Nations "and the reality that under the Royal Proclamation, all territory in BC is still territory of First Nations" was a prime factor in the encampment at Gustafsen Lake.

The result of treaty violations, as well as the concurrent attempt to assimilate native people into Canadian society, is plain to see. Without an adequate land base, traditional economies such as buffalo hunting have broken down. This economic collapse has been accompanied by cultural disintegration, as aboriginal religions, languages, and political structures have been banned and outlawed. This is most clearly seen in the most influential piece of Canadian legislation that relates to First Nations, the Indian Act. Passed in 1871 and amended occasionally, the act mandated First Nations to set up political structures completely under the control of the Minister of Indian Affairs. It set up reserves where every activity -- "building a house, running a school" -- was controlled by a bureaucrat in Ottawa.

"We are a Fourth World, internal colonies in every modern state," said George Manuel, the first leader of the Native Indian Brotherhood, in 1964. Instead of nation to nation agreements, with the sovereignty of native nations and the Canadian state respected, internal colonisation has developed.

The policy document is not only an acknowledgement of past Canadian failures but, also the continued native resistance to assimilation into the Canadian mainstream. Since the development of a national native political organisation in the 1960s, successive national native leaders, from George Manuel to Ovide Mercredi, have called on the Federal government not to give native people self- government, but to acknowledge self-government. As well, they have demanded that Canada repeal the structures "the Indian Act especially "that maintain the internal colonisation of the native communities across this country. Early reactions to the policy indicate that it will not be as much a dismantling as an updating of assimilation-based policy.

The Policy

Although the right to inherent self-government is "recognised and affirmed" in the Canadian Constitution, the Irwin policy is the first policy document to recognise this right and work towards its implementation. The policy is a commitment "to build a new partnership with Aboriginal peoples and strengthen Aboriginal communities."

The 20 page document attempts to summarise how individual negotiations with First Nations will be conducted to implement self-government. It also provides the broad guidelines of what self- government will mean.

Despite the stated intent of the document, the AFN and the Chiefs of Ontario have condemned it. Although most individual First Nations have yet to complete their assessment of the document, the Chiefs of Ontario view the policy as "colonial and paternalistic, intended to rid the Federal government of its responsibilities," in their written response to the document.

A prime indication of the nature of the document, according to the Chiefs of Ontario, is that it was developed without any consultation with native people.

"A few communities were hand-picked to glimpse at draft documents. The Minister refused on several occasions to establish a direct consultation process with First Nations people," wrote the Chiefs.

Beyond the manner in which it was developed, the Chiefs also have serious concerns about the content of the policy proposal. A key concern is the policy's recognition of the right to self- government. the document states that self-government will be limited to matters that are "internal and integral to First Nations." "This definition limits self-government to social and cultural areas... but does not include such activities as banking or environmental protection," the Chiefs write.

More importantly, the Federal definition of self-government does not adequately respect the true scope of self-government.

The Chiefs add that the "requirement to negotiate the inherent right makes it a contingent right " dependent on reaching agreements with federal and provincial authorities. "Our rights are not contingent."

The financial structure of possible self-government arrangements is not acceptable to the Chiefs.

The document states that as self-government agreements are made, the fiduciary responsibility of the Federal government "the obligations for funding to First Nations based on the ceding of land to the Canadian government" "will diminish".

"Until the Federal Government pays for its past misuse of our lands and resources and enters into further arrangements for ongoing access the fiduciary arrangements must continue," wrote the Chiefs.

Beyond the political and financial arrangements of self-government, the section of the document most criticized deals with the Canadian Charter of Rights and Freedoms.

All agreements, according to the Irwin proposals, will be under the overarching principles of the Charter. Therefore, any First Nations law, policy or regulation could be dismissed by non-natives based on its application to the Charter.

To the Chiefs of Ontario, it is simply unacceptable that any policy on self-government would make self-government less powerful than the Charter. They argue that since the Charter is an expression of non-native political and social values to make it paramount over a self-government arrangement is a continuation of colonisation. "The Charter is based on a Western concept of individual rights. The Charter could be used to suppress First Nations cultural practices and religions and even institutions of government," write the Chiefs.

This point is reiterated by the AFN. "Does this preclude the development of charters of rights and freedoms by First Nations people?" it asks in a written response to the policy recommendations.

The AFN is even more scathing about Irwin's desired outcome of the self-government agreements.

For Irwin, the implementation of the inherent right "should enhance Aboriginal peoples' participation in the Canadian federation, and ensure that Aboriginal people and their governments do not exist in isolation."

For the members of the AFN, this sounds all too much like the assimilative policies of old, which hoped to destroy native communities so that native people could live as Canadians in the Canadian mainstream. For many years, Indian Affairs policy on education and religion attempted to destroy traditional native culture, and replace it with non-native forms of learning and worship.

"It is assimilation cloaked as participation," says the AFN. The document fails to respect the nation to nation nature of the Aboriginal non-Aboriginal relationship: It will subsume native communities as a "quasi municipalities," without the powers to assert their sovereignty.

Although the document has been rejected by the AFN and the Ontario Chiefs, Audrey Stewart, a representative of the Department of Indian Affairs and Northern Development, is more hopeful about the effect of the policy document.

"This is a good response to the aspirations of First Nations and respects all Canadians," she said. "The real effect of the document must be worked out with each community at that level."

But the "two fundamental aspects of this policy that will not be changed at any level is the application of the Bill of Rights, and the fact that all sovereignty will remain in Canadian hands," she said. Unfortunately, these two aspects of the document are, in the eyes of the AFN and the Chiefs, the two aspects of the document that effectively negate any chance that this new policy will reverse the colonial policies of old. This new policy does not recognise the fundamental native concern" that their sovereignty does not have to negotiated into existence, but that it was never lost, only suppressed by generations of non-native Canadians.

Lorraine Land, a native law researcher at the Toronto-based Citizens for Public Justice, agrees.

"This document does not address the historic and legal reality of native sovereignty," she said. "This document takes a crippled system and tinkers with it."

The future

In 1969, at the height of Trudeau-mania and French-Canadian popular activism for greater equality, the Liberal government released their now-infamous so-called "white paper" on native affairs.

The white paper was not based on the reality that native people were members of colonised political communities, but that they were unfortunate remnants of CanadaUs past. For native people to be "helped," the document explained, it was necessary to move them as quickly as possible from traditional structures to modern ones.

It was condemned by native leaders, who saw it as another attempt to assimilate native people into the Canadian mainstream, and destroy the last vestiges of political and cultural autonomy.

Although the Irwin proposals do discuss the possibility of self-government, they have been condemned by native leadership as "The White Paper 1995."

There are some similarities between the two documents. For one thing, both were developed by non-natives, without any consultation with native leaders or communities at any level. For another, both were developed under the mandate of Jean Chretien, minister of Indian affairs in 1969, prime minister in 1995.

Neither of the documents recognises the historic claims of First Nations as self-governing, sovereign political entities. And it is because of "white-paper" type policies that across Canada there still exist hundreds of communities that have massive social and cultural problems due to the preceding 100 years of non-native policies.

In the 35 years between these two policies, though, there has been a tremendous rise in native communities being forced to use direct action as the only way to protect their sovereignty, their culture and their land.

This policy will likely intensify the schism between native groups, led by the AFN, who believe that the legal and political means are the best methods to assert their sovereignty, and more traditional groups, who reject the entire structure of the Canadian state and its colonial policies.

The Haudenosaunee "the Iroquois Confederacy, of which the Mohawk Nation is a member" has strongly voiced the traditionalist rejection of this agreement.

"Discard your failed ploys and policies. Accept our right to establish economic ways that conform to our sovereignty. Accept and act on our right to a unified sovereign homeland," they wrote in a letter to Irwin.

These words have provided inspiration to other groups "like the Defenders at Gustafsen Lake" who, after years of failed negotiations and inactive policies, see direct action as the only means of protecting their homelands.

"This policy will only reinforce these divisions."

At the root of both Gustafsen and Ipperwash was a lack of trust in the leadership, of both native and non-native organisations. This can be traced back to the failed attempts at negotiation," she said. "This distrust is not being addressed by this new policy document," she said.

Despite his experience with negotiation and litigation, Potts remains hopeful that the spirit of sharing enshrined in the first treaties between non-native Canadians and First Nations, can be revived.

"I remember once coming across an old white pine that had fallen in the forest," he wrote in Nation to Nation. "In its decayed roots a young birch and a young black spruce were growing, healthy and strong."

"I believe there is a future for native and non-native people to work together because of the fundamental fact that we share the same land," he wrote.


The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-government

The Irwin policy is an attempt to implement the inherent right to self-government enshrined in section 35 of the Constitution. Self-government agreements, under this document, will be reached through negotiation with each First Nations, and not through amendment of the Constitution. Agreements would be negotiated by Federal, Provincial and possibly Municipal political leaders, along with representatives from the respective First Nation. Land issues and financing would be the most common points of negotiation.

Key Points of the policy:

--> Self-government "will be exercised within the existing Canadian Constitution".

--> The Canadian Charter of Rights will apply fully to Aboriginal communities and political organisations.

--> All Federal funding for self-government will be achieved through the reallocation of existing resources.

--> Federal, provincial and territorial and Aboriginal laws must work in harmony. Laws of overriding federal and provincial importance, such as the Criminal Code, will prevail.

--> After a self-government agreement, "the fiduciary responsibility of the Federal Government would diminish."

--> Items that will not be part of self-government include:

--> national defence
--> international treaty making
--> international trade
--> Criminal Law
--> broadcasting and telecommunications
--> postal services
--> intellectual property

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