SHAPE-SHIFTING COLONIALISM

OVERVIEW OF CANADAS TERMINATION PLAN

ONKWEHONWE GOVERNANCE AND POLITICS
Presented By
Russell Diabo, First Nations Policy Consultant
March 24, 2016

Shape-Shifting Colonialism
Overview of Canadas
Termination Plan

Our Colonial History

Indian Act
Contemporary Termination
Plan/Policies/Tables
Liberal 2015 Promises
UN Human Rights/UNDRIP
Conclusion

Western Hemisphere

Early European Contact & Change

Origin of Canada
Canada bases its territorial
integrity and assertion of
sovereignty over Indigenous
Nations by continuing to rely
on the racist and outdated
notions of Terra Nullius and the
Doctrine of Discovery.

Our Colonial History

Two-Row Wampum Belt

Agreement

Algonquin Wampum Belts

Treaty of Swegatchy
August 1760
Neutraility: The Seven Nations and their allies and
dependents agreed to remain neutral as British
forces descended on Montreal, provided Britain
thenceforth treated them as friends.
Protection of Land Rights: The British Crown promised
the Seven Nations, their allies and dependents, that
they could continue to occupy their villages and
hunting grounds without interference.
Freedom of Religion: The British Crown assured the
Seven Nations, their allies and dependents, that they
could continue to practice the Roman Catholic
faith.

Treaty of Kahnawake
September 1760
Peace: The Seven Nations, their allies and
dependents, agreed to make peace with Britain and
its Six Nation allies and sever their links with the French.
Alliance: The Seven Nations, their allies and
dependents, agreed to re(join) the Six Nations, their
allies and dependents, in one large alliance in the
British interest.
Mutual Support: The parties agreed to support one
another in times of crisis. As part of the Covenant
Chain Alliance, the Seven Nations, their allies and
dependents, promised to provide Britain with military
assistance against European powers or hostile Indian
Nations.

Treaty of Kahnawake
September 1760
Free and Open Trade: The British Crown promised the
Seven Nations, their allies and dependents, would
have unfettered access to Anglo-American traders
based in New York and other colonies.
Anti-Trespass: The parties agreed that the British
Crown would regulate traders and, in the process,
control the distribution of alcohol, in the Indian
villages, at trading posts, and in the Indian country.
Protection of Land Rights: As at the Treaty of
Swegatchy, the British Crown promised to protect
Indian rights to their villages and hunting grounds.

Treaty of Kahnawake
September 1760
Freedom of Religion: As at the Treaty of
Sewgatchy, Britain promised to allow the
Seven Nations to practice the Roman
Catholic faith.
Economic Assistance: The British Crown
agreed to provide blacksmiths and other
tradesmen to assist the Indian Nations, as
had been the case with the French.

ROYAL PROCLAMATION OF 1763

1764 Great
Chain
Wampum

1901- Rubbing of belts at Manitoulin Island, similar to one at Kahnasatake.

24 Nations
Haudenosaunee & Seven Nations
Mohawks

Oneidaes

Tuscaroras

Onondagaes

Cayugaes

Senecas

Coghnawageys (Kahnawake)
(Kahnasatake)

Ganughsadageys

Nanticokes

Canoys

Mohicanders

Algonkins

Nipissengs
The Western Confederacy
Chippawaes

Ottawaes

Menomineys

Sakis

Outagamies (Fox)

Puans (Ho-Chunk Winnebago)

Christineaux (Cree)

Hurons

Toughkamiwons

[Algonkins]

[Nipissangs]

{Reynards}

Upper Canada: 1791-1841

FATHERS OF COLONIALISM
First legislative Assembly July 1, 1867

Federal Powers Section 91

Public Debt and Property
Regulation of Trade/Commerce
Direct/Indirect Taxation
Defence
Navigation/Shipping
Sea Coast and Inland Fisheries
Ferries (interprovincial/ international)
Currency, Banking /Incorporation of Banks/Paper Money
Bankruptcy
Patents, Copyrights
Indians & lands reserved for the Indians
Citizenship, Marriage/Divorce
Criminal law, including Criminal Procedure

Provincial Powers Section 92

Direct Taxation within Province
Management/Sale of Public Lands belonging to
Province
Prisons, Hospitals
Municipalities
Formalization of Marriage
Property and Civil Rights
Administration of Civil/Criminal Justice
Education
Incorporation of Companies
Natural Resources
Matters of a merely local or private nature

INDIAN ACT

Indian Act
The Indian Act has conflicting
and parallel objectives:
the protection of Indians and
their lands on the one hand,
and the control, assimilation
and civilization of Indian
peoples on the other.

Canadas Contemporary
Termination Plan-PoliciesNegotiation Tables

Chrtien and Trudeau

1969 WHITE PAPER ON

INDIAN POLICY

1969 White Paper Proposals

Eliminate Indian Status.
Dissolve the Department of Indian Affairs within 5
years.
Abolish the Indian Act & remove section 91.24.
Convert reserve land to private property that can be
sold by the band or its members.
Transfer responsibility for Indian Affairs from the
federal government to the province and integrate
these services into those provided to other Canadian
citizens.
Provide funding for economic development.
Appoint a commissioner to address outstanding land
claims and gradually terminate existing Treaties.

CONSTITUTION ACT 1982

Constitution Act 1982

On 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.

Constitutional Colonization
vs. Decolonization

Sec.
91.24

Sec. 35

Proposed Distinct
Order of Indigenous
Government
Federal Powers
Section 91

First Nations
Powers
Section 35

Provincial Powers
Section 92

Supreme Court of Canada:

The Judges

FEDERAL INTERIM
COMPREHENSIVE
CLAIMS/SECTION 35
POLICY

34

2014 Federal Interim CCP &

Section 35 Policy

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.

FEDERAL CORE MANDATES

= 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 onreserve tax exemptions;

FEDERAL CORE MANDATES

= 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;

37

Extinguishment of Aboriginal
Title Legal Techniques

certainty and finality;

modified and released;
and
Non-assertion of rights.

Cash & Land

Cash & Land: The

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

Federal Law & Policy Toolkit

1. Indian Act;
2. 1995 Aboriginal Self-Government Policy;
3. Specific Claims Policy;
4. Comprehensive Land Claims Policy;
5. Aboriginal Consultation & Accommodation
Guidelines 2011;
6. Federal Framework for Aboriginal Economic
Development 2009;
7. Additions-to-Reserve Policy;
8. First Nations Land Management Act; and
9. Assorted Program Policies Housing, Health, etc.

First Nations Negotiating

Under Comprehensive
Claims & SelfGovernment Policies

Comprehensive Claims &

Self-Government
Negotiations

Comprehensive Land Claims

& Self-Government Tables

Minister Valcourt and Mohawks of

Akwesasne Reach Historic Milestone in
Self-Government Talks
Looking Ahead - SOURCE: Aboriginal Affairs and Northern
Development Canada - November 3, 2013

Under finalized governance arrangements,

the Mohawk Council of Akwesasne would
have law-making powers in these key areas:
membership, elections, financial
administration, managing their reserve
lands, business and local economic
development and the enforcement of First
Nation laws. [Emphasis added]

Minister Valcourt and Mohawks of

Akwesasne Reach Historic Milestone
in Self-Government Talks
Mohawk Council of Akwesasne laws will apply
only on the First Nation's reserve land base in
Canada and will operate within the Canadian
constitutional framework. Federal and provincial
laws will operate in harmony with First Nation
laws. The Canadian Charter of Rights and
Freedoms, the Canadian Human Rights Act and
other laws of general application such as the
Criminal Code will continue to apply to protect
the interests of all individuals on First Nation land.
[Emphasis added]

Minister Valcourt and Mohawks of

Akwesasne Reach Historic Milestone
in Self-Government Talks

Governance agreements are

not treaties and do not affect
Aboriginal or treaty rights.
Non-members residing on First
Nation lands would have input
into decisions that directly
affect them.

Indian Residential School

Settlement Agreement
Apology From The Crown.
A Common Experience Payment;
An Independent Assessment Process;
Commemoration Activities;
Measures to support healing; and the
Indian Residential Schools;
Truth and Reconciliation Commission.

Truth and Reconciliation

Commission
Key Recommendations
HEALTH: An acknowledgement that the current state of
aboriginal health is a direct result of previous government
policies and the implementation of health-care rights for
aboriginal people.
EDUCATION: The creation and funding for new aboriginal
education legislation, which protects languages and
cultures and closes the education gap for aboriginal
people.
JUSTICE: A commitment to eliminate the
overrepresentation of aboriginal people in custody and in
trouble with the law, along with the collection and
publication of data on criminal victimization of aboriginal
people.

Truth and Reconciliation

Commission
Key Recommendations
PUBLIC INQUIRY: The creation of a public inquiry into
missing and murdered aboriginal women and girls.
MONITORING: The creation of a national council for
reconciliation, which would monitor and report on
reconciliation progress, as well as the introduction of
an annual State of Aboriginal Peoples report
delivered by the prime minister.
LANGUAGE: The government is asked to implement
an Aboriginal Languages Act and appoint a
language commissioner in order to preserve and
promote it.

Truth and Reconciliation

Commission
Key Recommendations
FUNDING: The report calls for $10 million over seven years
from the federal government for the National Centre for
Truth and Reconciliation
COMMEMORATION: The creation of a statutory holiday to
honour survivors, their families and communities and to
ensure "public commemoration of the history and legacy
of residential schools remains a vital component of the
reconciliation process."
MEMORIALS: The report asks for funding for memorials,
community events and museums, including a museum
reconciliation commemoration program, to be launched
in time for Canada's 150th anniversary in 2017.

Liberal Aboriginal
Platform
Commitments
2015 Election

Justin Trudeaus 2015

Commitments
During the election campaign, the platform
commitments (including the Liberal Party of Canadas
October 8, 2015, response to the BC First Nations
Leadership Council) stated that a Liberal government
will:
Immediately re-engage in a renewed nation-to-nation
process with Indigenous Peoples to make progress on
the issues most important to First Nations. . .
Prioritize developingin full partnership with First
Nationsa Federal Reconciliation Framework. This
framework will include mechanisms to advance and
strengthen self-government, address outstanding land
claims, and resolve grievances with both existing
historical treaties and modern land-claims
agreements.

Justin Trudeaus 2015

Commitments
Enact the 94 recommendations of the Truth and
Reconciliation Commission, including the adoption of the
United Nations Declaration on the Rights of Indigenous
Peoples.
Recognize and respect Aboriginal title and rights in
accordance with Canadas Constitutional obligations, and
further those enshrined in the UN Declaration on the Rights of
Indigenous Peoples.
Immediately lift the two percent cap on funding for First
Nations programs, and establish a new fiscal relationship with
First Nations one that provides them with sufficient,
predictable, and sustained funding to support the priorities of
First Nations communities.

Justin Trudeaus 2015

Commitments
The Liberal Party of Canada has endorsed the
recommendations in the Eyford report in their entirety and is
committed to working in partnership with First Nations to fully
implement them. We will look to First Nations leadership for
guidance when making decisions on where investments should
be made.
Undertake a full review of regulatory law, policies, and
operational practices, in full partnership and consultation with
First Nations to ensure that the Crown is fully executing its
consultation, accommodation, and consent obligations,
including on resource development and energy infrastructure
project reviews and assessments, in accordance with our
constitutional and international human rights obligations

International Human
Rights Bodies/Standards

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.

CONCLUSION

Trudeaus 5 Point Plan

(Priorities)
Launch a national public inquiry into missing and
murdered indigenous women.
Make significant investments in First Nations
education.
Lift the two per cent cap on funding for First Nations
programs.
Implement all 94 recommendations from the Truth
and Reconciliation Commission.
Repeal all legislation unilaterally imposed on
indigenous people by the previous government.

Conclusion
63

What will the Trudeau

government do about land
claims, historic Treaties and
self-government policies?
How will Trudeau government
interpret section 35 rights &
International Human Rights?