VOLUME 12, ISSUES 8-10

AUGUST-OCTOBER 2014

FIRST NATIONS STRATEGIC BULLETIN

FIRST NATIONS STRATEGIC POLICY COUNSEL

Canada Responds to Tsilhqotin Supreme Court Case:

Extinguishment or Nothing!
By Russell Diabo and Dr. Shiri Pasternak
Our government believes that the best
way to resolve outstanding Aboriginal
rights and title claims is through negotiated settlements, stated Minister of
Aboriginal Affairs and Northern Development Canada (AANDC) Bernard Valcourt on the day the final Tsilhqotin
decision came down in June.

Natural Resources Minister Joe Oliver, left,

shakes hands with Douglas Eyford, Special
Federal Representative on West Coast Energy
Infrastructure, after he released the final report
on enhancing engagement of Aboriginal
groups in resource development and environmental protection, during a news conference in
Vancouver, B.C., on Thursday December 5,
2013. (Photo courtesy of CP, Daryl Dyck)

After 25 years of litigation, millions of

dollars in legal fees, and 399 days in
court for the Supreme Court hearing
alone, the Tsilhqotin people might have
preferred a negotiated settlement, too.
But not the kind the Government of Canada was offering. The Minister was referring to the Comprehensive Land
Claims policy, the Governments preferred method for dealing with unceded
Indigenous territory in Canada.

For critics of Canadas Comprehensive Land Claims policy, the federal governments response to the Supreme Court decision conveyed an automatic and outright
denial of the Courts watershed finding that the Tsilhqotin Nation held underlying
Aboriginal title to their territorial lands.
Whereas, the land claims policy, referred to by critics as the termination tables,
requires Aboriginal groups precisely to cede their Aboriginal title and circumscribe
their Aboriginal rights upon settlement through the use of two legal techniques:
Modification of Aboriginal Title and/or Non-Assertion of rights.
To push the land claims policy at a moment when the Supreme Court of Canada successfully challenged one of its worst aspects extinguishment was a stark message
for the federal government to send.
At a press conference in the weeks following Canadas initial reaction, Minister Valcourt expanded on his Departments approach to unceded Indigenous lands, now
evading any mention of the Tsilhqotin decision.
Valcourt introduced new measures to promote reconciliation in advance of and
outside of the Comprehensive Land Claims policy and to accelerate the signing of
modern treaty agreements.
He also promised the introduction of new consultation guidelines for government and
industry with regards to First Nations over natural resources. Would these changes
reflect the recognition of Aboriginal title made in Tsilhqotin?

Special points of
interest:

Harpers Response
to SCC Tsilhqotin
Case is Bogus Consultation Process

Four Algonquin
First Nations School
Feds Special Representative on Aboriginal Title

Settler-States Hijack UN Conference

on Indigenous Peoples & Water Down
UNDRIP

Inside this issue:

Response to Tsilhqotin

Transformative Ruling?

Algonquins to Eyford

Same Old Policy

13

Hijacked UN Conference

15

Tsilhqotin Case Summary

19

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Page 2

Canadas Response continued from page 1

Consultation as extinguishment
At the press conference, Minister Valcourt announced the appointment of Douglas

Bernard Valcourt with PM

Harper when named as
federal Minister of Aboriginal Affairs.

Eyford as the Ministerial Special Representative to assist Canada to reform the Comprehensive Land Claims policy.
This appointment signals an end to the Assembly of First Nations (AFN) Canada Comprehensive Claims Senior Oversight Committee (SOC). Prime Minister Harper established SOC during a meeting with the Assembly of First Nations in Ottawa on January 11,
2013 in order to address grievances with the policy. But the appointment of Eyford marks
the real direction the government is taking to address First Nations grievances.
In 2013, Eyford acted as the Governments Special Federal Representative on West
Coast Energy Infrastructure. The Eyford Report focused on consultation and engagement with First Nations over energy infrastructure. The report mentions Aboriginal title
only once, in passing. Thus, Eyford has been instrumental in creating the template for
denying Aboriginal title through consultative mechanisms.

The federal
government is
fighting tooth
and nail against
ceding an inch
of legal
authority over
land despite the
pronouncement
from the highest
court in the
land

The focus of consultation in his 2013 report is on reconciliation. However, it is clear from
the report that it is Indigenous peoples who must do all of the reconciling of their preexisting sovereignty with Canadian claims to underlying title.
The mandate of the Eyford Report is linked to the Government of Canadas agenda of expanding export markets for oil and gas. Spelled out early in the report, Canadas priority is
the need to capitalize on global energy demands, therefore to construct pipelines and
terminals to deliver oil and natural gas to tidewater.
The Projects listed as crucial here are the expansion of Kinder Morgans existing Trans
Mountain Pipeline, Enbridges Northern Gateway Pipeline, and several proposed natural gas pipelines and related upstream developments. Projects also include the development of liquefied natural gas (LNG) facilities in Kitimat and Prince Rupert, tied most directly to potential Asian markets.
The impediment to Canadas diversified energy market crucial because Canadas
principal customer is the United States, which is expanding its energy sources is that Aboriginal peoples hold constitutionally protected title and rights with which industry and
government must legally comply. In other words, the objective of Aboriginal Affairs recent announcement on the land claims policy was not to reconcile the policy with the Supreme Courts findings on Aboriginal title, but to accelerate the policy framework of Aboriginal title extinguishment, particularly in the areas of major resource development projects like the proposed pipelines in British Columbia.

The Black Box

The federal government is fighting tooth and nail against ceding an inch of legal authority
over land despite the pronouncement from the highest court in the land.
According to figures recently released by Parliament (as reported in the Law Times), oil
and gas disputes have been the top expense for AANDC for the past three years.
L to R: Jody WilsonRaybould, BC-AFN Regional Chief & BC Premier
Christy Clark.

The federal government has been either fighting First Nations in court the last resort for
Indigenous peoples trying to defend and protect their lands or pushing groups into the
Comprehensive Land Claims policy, many of them through the British Columbia Treaty Commission process, since 50 percent of the current Comprehensive Land Claims
negotiation tables are in British Columbia.
So, what should the Government of Canadas response have been to the Tsilhqotin decision?

VOLUME 12, ISSUES 8-10

Page 3

Canadas Response conclusion from page 2

When the SCC Delgamuukw (1997) decision came down, recognizing that Aboriginal title
underlies provincial fee simple interest in the land, by a resolution of the Chiefs-inAssembly, the AFN established a group to leverage the Supreme Court decision to change
the Comprehensive Land Claims policy. The AFN Delgamuukw Strategic Implementation Committee (DISC) commissioned a legal analysis, prepared by Mark Stevenson,
to find any discrepancies between the policy and the decision.
Two initiatives sprung from AFN-DISC: an Aboriginal Title Alliance and an aborted judicial review undertaken by the Assembly of First Nations to examine the Minister of Indian Affairs decision not to review the policy, given the groundbreaking ruling. Both of
these efforts failed due to internal division between First Nations leaders who had agreed
to negotiate under Canadas Comprehensive Land Claims policy and those First Nations
leaders who are not negotiating under the Comprehensive Claims policy.
Perhaps a new Aboriginal Title Alliance will form today. Are there too many Aboriginal
groups at the Comprehensive Land Claims negotiating tables that have borrowed money
from the federal government for land claims negotiations to exert any pressure on the government to change the policy, as has been the case in the past? Or can a political movement of Aboriginal Title holding groups build the unity and strength to hold Canada to account for administering illegal unjust policies that violate Aboriginal title, rights and international protocols protecting Indigenous peoples from land dispossession?
There are fundamental changes that Canada could make to reform the Comprehensive
Land Claims policy for the better. In her decision, Justice McLachlin specifically rejected what UBCIC Grand Chief Stewart Philip called the postage stamp theory of Aboriginal title. Instead, the court opted for a more expansive understanding of Indigenous
land rights over a broad territorial range. Yet the land selection process under the Comprehensive Land Claims policy is precisely the kind of site-specific approach to addressing underlying Aboriginal title that the SCC rejected. The entire territorial range including private lands should be on the table at least for compensation and Aboriginal title
should not be extinguished upon settlement or transformed into private property.
Currently, there is no way to get a Declaration of Aboriginal Title in Canada without enduring a costly and timely research process and court case, which most groups cannot
afford. The Comprehensive Land Claims policy is the sole federal policy by which unceded lands may be settled, yet it requires that bands extinguish their pre-existing Aboriginal title through a negotiated title conversion process into fee simple title. What alternatives exist?

Former Neskonlith Chief

Art Manuel was Co-Chair of
AFN-DISC

The entire
territorial range
including private
lands should be
on the table at
least for
compensation
and Aboriginal
title should not be
extinguished
upon settlement
or transformed
into private
property

Valcourt clearly signaled that Canada is not willing to change the structure of settler colonialism in Canada. Only a political movement of Indigenous Peoples and supporters from
Canadian civil society who support justice and reconciliation with Indigenous peoples will
convince him otherwise.

Protesters demonstrating against the Enbridge Northern Gateway Pipeline march through the streets in Vancouver, B.C., on
Monday, Jan. 14, 2013. (Photo courtesy of CTV)

Canadas Supreme
Court of Canada,
Chief Justice Beverly
McLachlin

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Page 4

The Indigenous Land Rights Ruling That Could

Transform Canada
By Martin Lukacs, the guardian
Indigenous rights offer a path to a radically more just and sustainable country which
is why the Canadian government is bent on eliminating them

This is what
dispossession by
negotiation
looks like. The
government
demands that
First Nations
trade away or
in the original
term, to
extinguish
their rights to
95% of their
traditional
territory. Their
return is some
money and small
parcels of land,
but insidiously,
as private
property,
instead of in the
collective way
that indigenous
peoples have
long held and
stewarded it

The unrest is palpable. In First Nations across Canada, word is spreading of a historic court
ruling recognizing Indigenous land rights. And the murmurs are turning to action: an eviction notice issued to a railway company in British Columbia; a park occupied in Vancouver;
lawsuits launched against the Enbridge tar sands pipeline; a government
deal reconsidered by Ontario Algonquins; and sovereignty declared by the Atikamekw in
Quebec.
These First Nations have been emboldened by this summers Supreme Court of Canada
William decision, which recognized the aboriginal title of the Tsilhqotin nation to 1,750
sq km of their land in central British Columbia not outright ownership, but the right to use
and manage the land and to reap its economic benefits.
The ruling affects all unceded territory in Canada those lands never signed away
through a treaty or conquered by war. Which means that over an enormous land mass
most of British Columbia, large parts of Quebec and Atlantic Canada, and a number of other spots a new legal landscape is emerging that offers the prospect of much more responsible land stewardship.
First Nations are starting to act accordingly, and none more so than the Tsilhqotin.
Theyve declared a tribal park over a swath of their territory. And theyve announced their
own policy on mining a vision that leaves room for its possibility, but on much more strict
environmental terms. Earlier this month they erected a totem pole to overlook a sacred
area where copper and gold miner Taseko has for years been controversially attempting
to establish itself; no mine will ever be built there.
And the Canadian governments response? Far from embracing these newly recognised
indigenous land rights, they are trying to accelerate their elimination. The court has definitively told Canada to accept the reality of aboriginal title: the government is doing everything in its power to deny it.
Canadians can be pardoned for believing that when the countrys highest court renders a
decision, the government clicks their heels and sets themselves to implementing it. The
judiciary directs, the executive branch follows: thats how were taught it works. But it
doesnt always and especially not when whats at stake is the land at the heart of Canadas resource extraction.
The new land rights ruling is now clashing directly with the Canadian governments method for cementing their grip on land and resources. Its a negotiating policy whose name
the so-called Comprehensive Land Claims is intended to make your eyes glaze over. But
its bureaucratic clothing disguises the governments naked ambition: to grab as much of
indigenous peoples land as possible.
This is what dispossession by negotiation looks like. The government demands that First
Nations trade away or in the original term, to extinguish their rights to 95% of their
traditional territory. Their return is some money and small parcels of land, but insidiously,
as private property, instead of in the collective way that indigenous peoples have long
held and stewarded it. And First Nations need to provide costly, exhaustive proof of their
rights to their own land, for which they have amassed a stunning $700 million in debt a
debt the government doesnt think twice about using to arm-twist.
Despite the pressure, most First Nations have not yet signed their names to these crooked
deals especially when the supreme court is simultaneously directing the government to
reconcile with First Nations and share the land. But the supreme courts confirmation that
this approach is unconstitutional and illegal matters little to the government. What enables
them to flout their own legal system is that Canadians remain scarcely aware of it.
Acting without public scrutiny, prime minister Stephen Harper is trying to shore up sup-

VOLUME 12, ISSUES 8-10

Page 5

Land Rights Ruling conclusion from page 4

port for this policy now 40 years old to finally secure the elimination of indigenous land
rights. The process is led by the same man, Douglas Eyford, who has been Harpers advisor on getting tar sands pipelines and energy projects built in western Canada. That is no
coincidence. The government is growing more desperate to remove the biggest obstacle
that stands in the way of a corporate bonanza for dirty fossil fuels: the unceded aboriginal
title of First Nations backed now by the supreme court of Canada.
A public commenting period opened during the governments pr blitz has created an opportunity for the indigenous rights movement and concerned Canadians to demand a longoverdue change in the governments behaviour. Recognising aboriginal title, restoring
lands to First Nations management, would be to embrace the diversity and vision we desperately need in this moment of ecological and economic crisis.
Because the government agenda is not just about extinguishing indigenous land rights. Its
about extinguishing another way of seeing the world. About extinguishing economic models that prize interdependence with the living world, that recognise prosperity isnt secured by the endless depletion of resources. And about extinguishing a love for the land, a
love rooted in the unique boundaries and beauty of a place.
The land is the most important thing, Tsilhqotin chief Roger William told me. Our
songs, our place names, our history, our stories they come from the land that we are a
part of. All of it is interrelated with who we are.
The few days I spent in Tsilhqotin territory five years ago made that vivid. It is a land of
snow-capped mountains Tsil-os, who in their stories was a man transformed into giant
rock after separating from his wife. Wild horses stalk the valleys. Salmon smoke on drying
racks. The Tsilhqotin carefully protect and nurture these fish running stronger in their
rivers than anywhere else in the province.
Thats why the habit of government officials, of media and even of supreme court judges to
call the Tsilhqotiin nomadic bothers William so much: his people have lived on these
lands for thousands of years, while it is non-natives who are constantly moving and resettling. And what could be more nomadic and transient than the extractive industry itself
grabbing what resources and profits it can before abandoning one area for another.
As Canadians look more closely, they are discovering that the unceded status of vast territories across this country is not a threat, as theyve long been told. It is a tremendous gift,
protected with love by indigenous nations over generations, to be seized for the possibilities it now offers for governing the land in a radically more just and sustainable way for
everyone.
In this battle between the love of the land and a drive for its destruction, those behind the
extractive economy have everything to lose and indigenous peoples everything to win.
The rest of us, depending on our stand, have a transformed country to gain.
[Reprinted from the Guardian, October 21, 2014]

Tsilhqotin Nation Chiefs, June 26, 2014

Acting without
public scrutiny,
prime minister
Stephen Harper
is trying to
shore up
support for this
policy now 40
years old to
finally secure
the elimination
of indigenous
land rights. The
process is led
by the same
man, Douglas
Eyford, who has
been Harpers
advisor on
getting tar sands
pipelines and
energy projects
built in western
Canada

FIRST NATIONS STRATEGIC BULLETIN

Page 6

Presentation to Mr. Douglas Eyford, Special Federal Representative

Regarding Canadas Interim Comprehensive Claims Policy
October 30 , 2014, Montreal, Quebec
By Algonquins of Wolf Lake, Timiskaming, Eagle Village, Barriere Lake
Kwe kwe Mr. Eyford,
We are pleased to be here today and we welcome you. This presentation will try to cover a
lot of ground in a short time. First we will explain who we are and a bit of our history as
Algonquin people. Next, we will review recent events related to Aboriginal title and rights,
and our efforts to have our rights addressed. We will also provide some initial comments
on Canadas discussion paper regarding the Comprehensive Claims Policy (CCP). And
finally, we will explain some of our expectations in terms of policy and process which
should guide our future relations, and especially the reconciliation of the respective rights
and interests of our peoples.

We represent
the Algonquins
of
Timiskaming,
Wolf Lake,
Eagle Village
and Barriere
Lake. Our
communities
are part of the
Algonquin
nation, whose
traditional
territory
includes the
entire Ottawa
River
watershed

To begin, please be advised that todays meeting does not constitute meaningful consultation. Far from it. We have had little opportunity or time to prepare, or to review Canadas
document. The federal government has provided us with no funds to carry out an analysis,
consult our members, or to develop a formal position. As well, recent changes to the federal policy explicitly prohibit tribal councils from engaging in political advocacy, but
leave it up to bureaucrats to define what this means. The message from the federal government seems to be that we should be seen but not heard. As a result, we are not even able
to use tribal council resources to support our presence here.
The federal paper invites informed discussion on policy renewal and expresses the
hope that it will be a basis for respectful and constructive dialogue. We welcome this,
but if Canada is serious about consulting us on a renewed CCP, then it will need to provide
adequate resources and adequate time, and also to recognize our right to organize and
speak as we see fit on issues that affect us.
So for all of these reasons, we must tell you that this meeting is an information session only
and without prejudice to our rights and interests. We do have some preliminary comments
which we would like to share with you, and we look forward to authentic consultation in the
near future if the government of Canada is prepared to be serious about engaging with us.

Who we are
We represent the Algonquins of Timiskaming, Wolf Lake, Eagle Village and Barriere
Lake. Our communities are part of the Algonquin nation, whose traditional territory includes the entire Ottawa River watershed (see attachment 1: Map showing Algonquin nation territory circa 1850). As you can see from the map, Algonquin territory straddles what
is now the provincial boundary between Ontario and Quebec. The imposition of this
boundary has had a dramatic impact on our communities, one that continues to today.
At present, there are ten federally recognized Algonquin communities, with a total population of approximately 8-10,000. Nine of these Algonquin communities are located in Quebec. Proceeding from northwest to southeast, these are the Abitibiwinni, Timiskaming,
Eagle Village (Kebaowek), Wolf Lake, Long Point (Winneway), Kitcisakik (Grand Lac), Lac
Simon, Mitcikinabik Inik (Algonquins of Barriere Lake) and Kitigan Zibi (River Desert). In
Ontario, members of the Algonquins of Pikwakanagan (at Golden Lake) make up the only
recognized Algonquin community, though three other Ontario First Nation communities,
Wahgoshig, Matachewan and Temagami, are of at least partially Algonquin descent. (See
attachment 2: Map showing Aboriginal communities in the Ottawa River watershed.)
We live in a complex matrix of overlapping interests. The Ontario-Quebec border cuts
through Algonquin territory; to the north in Quebec is the James Bay Northern Quebec
Agreement territory; on the Ontario side our territories adjoin the territory of the Robinson
Huron Treaty of 1850 and Treaty 9 of 1905-08. To the south the so-called Algonquins of
Ontario comprehensive claim is at the draft AIP stage after more than 20 years of negotiations. To the north east the Attikamekw are in their fourth decade of CCP negotiations.

VOLUME 12, ISSUES 8-10

Page 7

Algonquins to Eyford conclusion from page 6

And to the southeast are the Mohawk Councils at Kahnesatake, Kahnawake and Akwesasne.
Barriere Lake, Wolf Lake, Timiskaming and Eagle Village are descended from the Algonquin Bands who traditionally used and occupied the territory where we still live. Our members can trace their ancestry and continued use and occupation of this territory back to
time immemorial. Barriere Lakes traditional territory is wholly within the province of Quebec. Timiskaming, Eagle Village and Wolf Lakes traditional territories straddle the Ontario-Quebec border. Our language, customs and traditions are a big part of what defines us
as a people. We have names, in our own language, for all of the lakes, rivers, mountains,
and features of our respective territories. These names have been in use since time immemorial and they are proof of our long relationship with the land.
Our communities are all recognized as "Bands" within the meaning of the Indian Act, and
come within the meaning of "Indian peoples" in section 35 of the Constitution Act, 1982.
We have never entered into a land cession treaty surrendering our Aboriginal rights and
title; nor have we authorized any other nation or entity to negotiate on our behalf for such
title and rights. Therefore, our Aboriginal rights and title have never been extinguished
and exist to this present day.

Aboriginal Title, Treaties and Alliance

Our ancestors were traditionally allied to the French and we played an important role in
their struggle with the English because we controlled the Ottawa River, which was a strategic transport corridor between the St Lawrence and the upper Great Lakes. Beginning in
1760 the Algonquins entered into a number of treaties with Great Britain: at
Swegatchy and Kahnawake in 1760, and at Niagara in 1764. They were not land surrender treaties: these agreements assured the British of our alliance, and in turn the British
promised, among other things, to respect and protect our Aboriginal title and rights. In
addition, the Royal Proclamation of 1763 applies to our traditional territory: it guaranteed
that our lands would be protected from encroachment, and that they would only be shared
with settlers if and when we had provided our free and informed consent through treaty.
Algonquin Chiefs were given copies of the Royal Proclamation by Sir William Johnson
in 1763-64.

Treaty of Niagara Wampum

Belt 1764.

Two hundred
and fifty years
after the Treaty
of Niagara, our
people are still
waiting for a
just settlement
with Canada,
while we
continue to be
excluded from
equitable
benefit of the
economic and
social life of our
region

Unfortunately, despite these commitments, the British Crown, and later the Canadian government, took our lands by force, without our consent, and without any compensation. Sixty years after the Royal Proclamation of 1763 had been given to them, our Chiefs still had
their original copies, which they presented to government along with petitions for protection of their lands and just compensation. Instead of dealing with them honestly, government ignored its commitments and continued to take the land without treaty and without
consent. Our people suffered greatly as a result, even as those around them became rich
from the furs, timber, minerals and other resources.

Recent Events and Alternative Approaches

Two hundred and fifty years after the Treaty of Niagara, our people are still waiting for a
just settlement with Canada, while we continue to be excluded from equitable benefit of
the economic and social life of our region. Despite being surrounded by their own Aboriginal title lands, three out of the nine Algonquin communities in Quebec dont even have
federal reserve lands of their own, while other communities do not have enough land to
meet their growing housing needs.
Since the advent of section 35 of the Constitution Act, 1982, the contradictions have been
mounting. Despite the fact that section 35 recognizes and affirms our Aboriginal and
treaty rights, successive federal and provincial governments have produced a series of
policy and negotiation frameworks which discount or ignore those rights, but which also
require their extinguishment. In contrast, Canadas courts have issued a series of judge-

1812 Peace Medal of King

George III.

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Algonquins to Eyford continued from page 7

ments which serve to confirm and lay out the nature and scope of Aboriginal & treaty
rights, and the tests required to prove them.
At the same time, the United Nations Declaration on the Rights of Indigenous Peoples
has contributed to standard-setting with respect to Aboriginal rights and key principles
such as free and informed consent.
Barriere Lake Chief Jean
Maurice Matchewan arrested by SQ at a logging blockade in 1989.

the Algonquins
of Barriere Lake
entered into a
Trilateral
Agreement with
Canada and
Quebec, with the
shared objective
of developing an
integrated
resource
management
plan that would
protect their way
of life while also
enabling
resource
development to
take place in a
sustainable
manner, but
outside the CCP

Unfortunately, with each positive court decision or development on the international stage,
the federal government seems to move its policy further away, deeper into denial and
avoidance. This was clear after the Supreme Court of Canada ruled in Delgamuukw in
1997. Following this decision, the federal government refused to amend the CCP, despite
the fact that the policy and process were at odds with the legal reality described by the
court. For your information we have included a legal opinion that was commissioned postDelgammukw, which enumerates, in significant detail, the ways in which the CCP fails to
conform to the law. (See attachment 3, Mark Stevenson & Albert Peeling, Review of
Canadas Comprehensive Land Claims Policy (prepared for the Delgamuukw Strategic
Implementation Committee, Assembly of First Nations. Released 15 February 2002.) We
believe that the conclusions of this analysis still hold true.
With subsequent court decisions, in particular Haida and Tsilhqot'in, the disconnect between federal policy & practise on the one hand, and the law on the other, has become
even more glaring. In particular, while the courts have acknowledged the need for policy
and process that covers the spectrum from asserted rights through to final negotiated
agreements, including the need to consult and accommodate in the interim, federal policy
has failed to provide practical measures to address these realities.
Our communities have made a best effort at addressing these contradictions, and engaging the federal and provincial Crowns to ensure that our rights and interests are recognized and affirmed. These efforts provide some alternative approaches which, it seems to
us, fall under the category of non-treaty agreements contained in the federal discussion
paper. We would like to provide you with these examples.

Barriere Lake Trilateral Agreement

In the early 1990s, the Algonquins of Barriere Lake entered into a Trilateral Agreement
with Canada and Quebec, with the shared objective of developing an integrated resource
management plan that would protect their way of life while also enabling resource development to take place in a sustainable manner, but outside the CCP. Canada walked away
from that agreement, partly because it took the position that the process was an effort to
avoid the CCP. Today, the Algonquins of Barriere Lake (ABL) continue to pursue these
objectives bilaterally with Quebec, but the federal government is absent. The Trilateral
Agreement Territory (TAT) was recognized by Canada and Quebec, and encompasses,
in general terms, the area over which ABL asserts Aboriginal title. (See Attachment 4, Map
showing location of Grand Lac Victoria Beaver preserve, La Verendrye park and Trilateral
Agreement territory (Arbex February 2007); and attachment 5, Map showing ABL Current
Use and TAT (Arbex February 2007)).

Timiskaming, Wolf Lake & Eagle Village Statement of Asserted Rights

In January 2013, Timiskaming (TFN), Wolf Lake (WLFN) and Eagle Village (EVFN) presented Canada, Quebec and Ontario with a Statement of Asserted Aboriginal Rights & Title
(SAR), in part to address the gaps in federal policy related to consultation and interim
measures prior to treaty negotiations. As explained in that document:
The purpose of this Statement is to set-out the evidence to support WLFN, TFN and
EVFN in their efforts to engage the honour of the Crown and its duty to consult
them and accommodate their interests in matters affecting their traditional territo-

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Algonquins to Eyford continued from page 8

ries. It is intended to engage Canada's obligations under domestic law
(Constitution Act, 1982, s. 35 and the Haida case) and international law, the
United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP),
which requires free prior and informed consent before any development activities
within the traditional territories of Indigenous Peoples.
This Statement is provided as an interim step prior to the completion of formal
Statements of Claim from TFN, WLFN and EVFN, and is provided at this time to
give the Crown formal notice of their asserted Aboriginal rights and title. [...] Although this Statement is only a summary of the evidence, it is intended to provide
enough evidence to trigger the Crown's duty and to establish that the scope of that
duty is at the high end because of the strength of the claim.1
The package that went with the SAR included extensive documentary evidence to substantiate the assertions made. It also included a map showing the geographic extent of the area
over which the three communities assert Aboriginal title and rights (see attachment 6,
Timiskaming, Wolf Lake and Eagle Village: Asserted Aboriginal Rights area (January
2013).
Canada has been unprepared to address the SAR in any meaningful way. It has refused to
engage the communities substantively with respect to consultation, and instead has insisted that the only way for these matters to be addressed is for Eagle Village, Wolf Lake and
Timiskaming submit their comprehensive claims to Canada for review; but that even then,
nothing will be done until all of the nine Quebec Algonquin communities submit claims.
Canada has refused to act on the strength of evidence provided to it in the SAR. 1 Statement of Asserted Aboriginal Rights & Title: Timiskaming, Wolf Lake & Eagle Village, Jan
2013: p. 2
Although, as we will see below, the federal discussion paper identifies the negotiation of
non-treaty options as a possibility, and suggests that non-treaty approaches can be an
effective way to address Section 35 Aboriginal rights, we have not seen any indication
that federal officials are actually prepared to entertain these alternatives. In fact, Barriere
Lakes experience with the Trilateral Agreement and the experience of Timiskaming,
Wolf Lake and Eagle Village with the SAR, suggests that federal officials are unwilling to
consider practical alternatives to the CCP, even when confronted with significant strength
of evidence.

Comments on the Federal Discussion Paper

Over the last decades, we have, through the Algonquin Nation Secretariat, participated
in more than one effort to have the CCP revised. Each time we have seen the federal government avoid the fundamental change that is needed to ensure that the CCP conforms to
domestic law and international standards. Instead, Canada has opted to maintain the status
quo, which is based on the extinguishment of our rights and the continued poverty of our
people.
Given this history, it should come as no surprise that we may be sceptical of current federal offers to renew and reform the CCP. The federal government seems content to tinker
with the process, but appears unwilling to fundamentally change its policy to catch up to
the law and international standards. Regardless, we are here today to make our representations to you in the hope that perhaps this time might be different. And if not, then our
views will be on the record, and we will join previous leaders of our nation who have consistently asked the Crown to do the right thing.
We have received a copy of a federal discussion paper entitled Renewing the Comprehensive Land Claims Policy: Towards a Framework for Addressing Section 35 Aboriginal
Rights, dated September 2014. We understand that todays meeting with federal representatives is to enable us to hear more about this interim policy, and to provide our initial
comments.
We can tell you that the members of Timiskaming, Barriere Lake and Wolf Lake, meeting in

Barriere
Lakes
experience
with the
Trilateral
Agreement and
the experience
of Timiskaming,
Wolf Lake and
Eagle Village
with the SAR,
suggests that
federal officials
are unwilling to
consider
practical
alternatives to
the CCP, even
when
confronted with
significant
strength of
evidence

FIRST NATIONS STRATEGIC BULLETIN

Page 10

Algonquins to Eyford continued from page 9

BC AFN Regional Chief
Jody Wilson-Raybould
excluded non-negotiating
First Nations from the Canada-AFN CCP SOC Process.

these principles
were never ratified
by the Chiefs in
Assembly or the
AFN Chiefs CCP
Working Group. So
we do not believe
that it is
appropriate to
point to those
principles as being
representative of
First Nation views,
or to suggest that
the outcomes of the
Senior Oversight
Committee on
Comprehensive
Claims were
reflective of
authentic joint
development

assembly on September 17, 2014, rejected this interim policy (see attachment 7, ANS Resolution 2014-07). We can also tell you that the Assembly of First Nations of Quebec and
Labrador has rejected this document.
In this connection we need to mention of the Principles Respecting the Recognition and
Reconciliation of Section 35 Rights which is referred to in Canadas discussion paper,
and which is described as being jointly developed by the Crown and First Nation leaders, with the support of the Assembly of First Nations, through the Senior Oversight
Committee on Comprehensive Claims. Despite our best efforts, we were excluded from
participation in that process and therefore those principles do not reflect our views or our
realities. Our communities are not alone in this situation. Moreover, these principles were
never ratified by the Chiefs in Assembly or the AFN Chiefs CCP Working Group. So we
do not believe that it is appropriate to point to those principles as being representative of
First Nation views, or to suggest that the outcomes of the Senior Oversight Committee on
Comprehensive Claims were reflective of authentic joint development.
We must emphasize to you is that if Canada is serious about consulting on the CCP then it
needs to engage directly with the rights-holders. Organizations like the Assembly of First
Nations are not equipped or mandated to address matters arising from our rights and title.
The federal discussion paper on renewing the CCP does not appear to represent any departure from the status quo, or to provide any substantive response to the significant
changes to the legal landscape brought about by Delgamuukw, Haida, or Tsilhqot'in.
Rather, it reflects the same failed policy approach that has mitigated against successful
reconciliation between our peoples up to now.
Following are some preliminary comments under specific headings:

Certainty
Nothing new here, but continued emphasis on legal techniques to obtain effective extinguishment, without meaningful recognition or affirmation of rights.

Lands
Although it is not stated in the discussion paper, we understand that Canada refuses to provide Reserve lands within the meaning of Section 91(24) of the BNA Act, 1867 as part of a
treaty agreement. If this is the case it should be stated clearly, and if not, then it should be
explicit about the retention of 91(24) lands.

Shared Territories and Overlapping Claims

Our communities have spent considerable time and effort to document their territorial interests, as well as potential overlaps with neighbouring communities. Canada has so far
refused to engage us seriously on this issue despite our best efforts, and in fact continues
to negotiate with the Algonquins of Ontario (AOO) over lands that we use and occupy,
and over which we have asserted Aboriginal title. We are currently engaged in protracted
discussions with federal officials to try and obtain a substantive consultation process to
address our concerns about the impact of the AOO claim on the asserted rights of
Timiskaming, Eagle Village and Wolf Lake. We continue to meet resistance.

Trans-Boundary Claims
PM-AFN Meeting on Jan. 11,
2013, where Harper agreed
to CCP SOC Process.

After many years of explaining who we are, and despite the facts, we are still confronted
by a federal government that insists we are Quebec Algonquins. Federal infatuation with
the AOO claim at the expense of considering the interests of other adjacent Algonquin
communities is an example of this. The federal approach is contrary to reality. Substantial
portions of Timiskaming, Wolf Lake and Eagle Village traditional territory lie in both On-

VOLUME 12, ISSUES 8-10

Page 11

Algonquins to Eyford continued from page 10

tario and Quebec. Our members go to school, hunt, fish, work, and live in both provinces.
Canada needs to recognize this reality and support our efforts to resolve issues arising
from the imposition of the provincial border on our traditional territories.

Loan Funding
The discussion paper is silent on the matter of loan funding other than to say that outstanding loans must be paid, but we understand it remains the policy of Canada that it will only
enter into negotiations on the basis of loans. Experience has shown that gives unfair advantage to Canada as negotiations drag on and First Nations become mired in debt
through no fault of their own. If loan funding is no longer Canadas policy, then it should be
stated in this discussion paper.

AANDC Headquarters

Federal Jurisdiction
We understand that Canada requires treaty beneficiaries to give up the federal character
of their core lands, and we ask why this is part of the price our communities are asked to
pay for resolving the land question.

Silence on Key Irritants

Overall, it seems that in drafting the federal discussion paper, a decision was made to
avoid explicit mention of the some of the most objectionable aspects of the policy. Some
examples include (and there others as well):
taxation
loss of reserve lands & reduction of s. 91(24) federal responsibility
no compensation for prior infringement
loan funding
Given the contention surrounding these aspects of current policy and practise, and the
need for frank discussion, we find this avoidance to be troubling. If the government of Canada wants a forthright dialogue, then it should be explicit about whether these significant
barriers to reconciliation remain part of the CCP, or whether there is an opportunity to
discuss alternative approaches.

Overall, it
seems that in
drafting the
federal
discussion
paper, a
decision was
made to avoid
explicit mention
of the some of
the most
objectionable
aspects of the
policy

Beneficiaries
We are very concerned at the federal approach to beneficiaries in the AOO claim, which
gives standing to individuals and groups who may not meet the legal requirements as title
holders. As a result we may find that non-title holders are provided with an opportunity to
extinguish Algonquin title and rights to territory over which we assert Aboriginal title. Despite the fact that we have advised Canada of our concerns, and provided the federal government with a clear indication of the territory over which we assert title and rights, as well
as the overlaps with the AOO claim, we have received no substantive response or engagement on this matter.

Compensation
The Delgamuukw decision speaks about the requirement for compensation when lands
and resources have been taken without consent or justification. Despite this direction from
the courts, Canadas CCP continues to avoid the matter of compensation. For Algonquin
territory, where the minerals and timber have been largely taken out already, this is a significant issue.

Aggregation of Aboriginal Groups

Experience shows that the federal government is arbitrary when it comes time to decide

Colleen Swords, DM of
AANDC.

FIRST NATIONS STRATEGIC BULLETIN

Page 12

Algonquins to Eyford conclusion from page 11

who to deal with in negotiations. For instance, Canada is negotiating the AOO claim solely with the Algonquins of
Pikwakanagan and an assortment of non-status groups. Canada has so far refused to engage Timiskaming, Wolf
Lake and Eagle Village with respect to our asserted interests in the AOO territory. At the same time, in BC there are
many negotiations taking place with individual First Nations/Bands.
On the other hand, when Timiskaming, Eagle Village and Wolf Lake transmitted the SAR to Canada, the federal response was that we were not a large enough aggregate, even though our communities are contiguous and we share
close common history and kinship.
Federal officials have refused to act on evidence presented in the SAR which demonstrates that within the Algonquin
nation Aboriginal title is held at the band/community level, or its application to our assertion of rights. We were
told: submit your claim, wait until the other six Quebec Algonquin communities submit their claims, and, whenever
that happens, Canada will then decide how it will approach the claim globally with all of the Quebec Algonquins. But
federal officials have been unable or unwilling to offer any substantive interim measures that would address our assertion of rights in the meantime.
There may be some issues (for instance membership / beneficiaries) which are appropriate to discuss at aggregate
levels, but what those aggregate levels should be needs to be informed by the customs and traditions of the nation, and
be accountable to the rights-holders. It is not appropriate for the federal government to interfere in our internal affairs
and dictate these matters. Canada will need to show flexibility on this issue if it is to be successful in negotiations.

Reconciliation measures outside of the treaty process/Negotiation of Non-Treaty

agreements
This approach provides some interesting possibilities and deserves further exploration, particularly on an interim basis until such time as the broader issues of CCP reform are dealt with. But, as explained above, we do not see any willingness on Canadas part to actually support this type of effort in our territory. If Canada is truly serious about reconciliation measures outside of a treaty process, then it can start by engaging with our communities on the SAR and the Trilateral Agreement.
We continue to be troubled by the fact that Canada refuses to adequately address the rights and interests of our communities in connection with consultation. For example, recently Timiskaming, Eagle Village and Wolf Lake have
been dealing with the Department of Public Works and Government Services Canada with respect to the refurbishment of the dams at Temiscaming and Latchford, but that federal department steadfastly refuses to engage in meaningful consultation by refusing to address Aboriginal rights and title on the affected lands as a central issue.
Until the CCP is amended to recognize and affirm our rights in a way that provides equitable, ongoing benefit and protection to our people and our lands, there will be a continuing need for meaningful and effective interim reconciliation
measures. We look forward to have a chance to pursue these alternatives with Canada, as well as longer term solutions, if Canada demonstrates the will. The status quo is not tenable.
Megwetch,
Chief Harry St Denis, Wolf Lake
Chief Terence McBride, Timiskaming
Chief Madeleine Paul, Eagle Village
Chief Casey Ratt, Barriere Lake
Attachments
1. Map showing Algonquin nation territory circa 1850 (prepared by PlanLab for the Algonquin Nation Secretariat, 14
February 2012)
2. Map showing Aboriginal communities in the Ottawa River watershed (prepared by PlanLab for the Algonquin Nation
Secretariat, March 2014)
3. Mark Stevenson & Albert Peeling, Review of Canadas Comprehensive Land Claims Policy (prepared for the Delgamuukw Strategic Implementation Committee, Assembly of First Nations. Released 15 February 2002.)
4. Map showing location of Grand Lac Victoria Beaver preserve, La Verendrye Park and Trilateral Agreement Territory
(Arbex February 2007)
5. Map showing ABL Current Use and TAT (Arbex February 2007)
6. Timiskaming, Wolf Lake and Eagle Village: Asserted Aboriginal Rights area (January 2013)
7. ANS AGA resolution 2014-7 re: federal interim CCP.

VOLUME 12, ISSUES 8-10

Page 13

Canadas Interim Comprehensive Claims

Policy: Same Old, Same Old
Posted September 24, 2014 by Mandell, Pinder, LLP
The 1986 Federal Comprehensive Land Claims Policy was last updated in 1993, before
most of the significant judicial decisions on s. 35 of the Constitution Act, 1982. One might
have expected, given the timing of the federal governments release of its interim Comprehensive Land Claims Policy, entitled Renewing the Comprehensive Lands Claims
Policy: Towards a Framework for Addressing Section 35 Aboriginal
Rights (September 2014) (the Interim Policy), that this policy would be responsive to
the Supreme Court of Canadas decision in Tsilhqotin, and would include a commitment to new mandates reflective of the rights and roles of Indigenous peoples and governments in the Canadian federation.

HOW THE INTERIM POLICY COMPARES TO TSILHQOTIN

A review of the Interim Policy reveals that it is not based on recognition of the extent and
content of Indigenous Peoples Aboriginal title as clarified by Tsilhqotin, or of Indigenous
peoples governance rights. Further, Canada continues to seek certainty largely through
a de facto extinguishment of Aboriginal title and rights, rather than to seek co-existence
based on recognition of Indigenous governance and title and reconciliation.
Following Tsilhqotin, it is clear that the Crowns rights to lands and resources in British
Columbia and other areas of the country where Aboriginal title remains unextinguished
are quite limited. While the courts have distinguished between the pre-proof and postproof stage, the reality is that most if not all Indigenous peoples could prove Aboriginal
title to their territories, and certainly to areas larger than those that have been set aside as
settlement lands under modern treaties. Treaties are meant to be an alternative to title
litigation, and to be effective in that regard it is time for the Crown to recognize this reality
and negotiate treaties on this basis.
The key elements and principles of the Interim Policy, which set out the federal governments current position, are as follows:

Treaties achieve certainty by setting out precise rights. Certainty is central to the
purpose of treaty negotiations. While not framed in terms of extinguishment, Aboriginal
rights continue in the abstract; they generally will not be exercisable. Instead, treaties
will clearly identify the geographic area where treaty rights are exercisable, and clearly
define the terms by which treaty beneficiaries have access to wildlife resources. Crown
laws in relation to hunting, fishing and trapping will apply.

The Interim Policy provides that Indigenous peoples who sign treaties will have secure title to treaty settlement lands, and will be able to fully realize the economic potential
of such lands. This suggests that outside of settlement lands, Indigenous peoples might be
excluded from the economic benefits. If current formulas for determining how much land
the Crown is willing to agree to as settlement lands continue, much of the economic rights
held by Indigenous peoples to their lands and resources would be expropriated through
treaty.

Self-government provisions will set out Indigenous governments jurisdiction over

treaty settlement lands and their citizens and provide clarity with respect to the application
of Aboriginal and Crown laws on the settlement lands. There is no provision for the operation of Indigenous laws outside of settlement lands.

Treaty signatories may have the subsurface rights on some treaty settlement lands and
some Crown lands.
Canada is prepared to negotiate resource revenue sharing with respect to natural resources over which the federal government has responsibility, but the Interim Policy is

If current
formulas for
determining
how much land
the Crown is
willing to
agree to as
settlement
lands continue,
much of the
economic
rights held by
Indigenous
peoples to
their lands and
resources
would be
expropriated
through
treaty

FIRST NATIONS STRATEGIC BULLETIN

Page 14

Same Old Same Old conclusion from page 13

based on the premise that it is the Crown who has the right (in the absence of treaty) to
derive such revenues. Canada would negotiate providing a share of federal royalties in
settlement areas. Further, capital transfer amounts may be reduced in accordance with
arrangements concerning resource revenue sharing, and resource revenues will be subject to taxation.

This is not a
shift in policy.
These are the
same essential
principles that
the Crown has
applied to
treaty
negotiations
based on its
now rejected
small spots
theory and
position that it
has a beneficial
interest in
Aboriginal title
lands and the
right to manage
those lands to
the exclusion of
Indigenous
peoples and
their laws

This is not a shift in policy. These are the same essential principles that the Crown has applied to treaty negotiations based on its now rejected small spots theory and position
that it has a beneficial interest in Aboriginal title lands and the right to manage those lands
to the exclusion of Indigenous peoples and their laws.

GOING FORWARD
According to the Interim Policy, Canada will contemplate forms of agreements other than
comprehensive treaties or agreements in areas of federal jurisdiction (e.g., non-treaty arrangements, contracts, legislation, memoranda of understanding and consultation and accommodation processes). Comprehensive treaty negotiations in British Columbia will
proceed under the British Columbia Treaty Process. The honour of the Crown demands
that the Crown (federal and provincial) be open to alternative paths towards reconciliation
that create space for the operation of Indigenous governance over land and resources and
fully and honestly recognize and reconcile Indigenous peoples interests in the lands and
resources with the interests of the Crown and Canadians in general. British Columbia has
thus far not indicated whether it will be revisiting its policies with respect to treaty negotiation post-Tsilhqotin. For example, will the Crown provide for more extensive settlement
lands to reflect the fact that without treaty, the Crown does not have the beneficial interest
to, and thus the right to benefit from, much of British Columbia? Is there any willingness on
the Crowns part to negotiate in good faith the co-existence of legal systems and laws? Will
the Crown provide compensation for past damages and infringements?

CHANGE IS OVERDUE
Canada has stated that the Interim Policy is a starting point for dialogue and the basis on
which it will seek input from Indigenous peoples, stakeholders and interested parties, over
the Fall of 2014. Ministerial Special Representative Douglas Eyford is tasked with engaging with First Nations over the Fall. Given the gap between the Interim Policy and the
law, more time may be necessary for this process. In order for there to be a real incentive
for Indigenous peoples to engage in land claim negotiations with the Crown, Crown mandates will need to shift. Now is the time for Canada (and British Columbia) to adopt a policy
grounded in Tsilhqotin and the United Nations Declaration on the Rights of Indigenous Peoples.

Tsilhqotin Chief Roger William in front of Supreme Court of Canada

building.

VOLUME 12, ISSUES 8-10

Page 15

Invader-States Hijacked UN World Conference on

Indigenous Peoples
By Glenn Morris, October 16, 2014
While watching the fraudulently-labeled United Nations World Conference on Indigenous Peoples (HLPM/WCIP)1 on UN WebTV on September 22-23, I was reminded of the
famous quote from Thomas Pynchon: "If they get you asking the wrong questions, they
don't have to worry about the answers." The UN meeting was full of state members who
had convinced a fair number of indigenous attendees to ask a multitude of the wrong questions. Unfortunately, whatever questions the indigenous people asked, the answer was
always the same: the forces that invaded our homelands are firmly in charge at the UN.
Worse yet, the room at the UN contained indigenous people who attended the meeting
from a position of fear, not from the courageous stance that defined the birth of the contemporary international movement for indigenous peoples' rights forty years ago. The indigenous spectators seemed to be attending because of insecurity that they were going to be
left out2 of something big. They werent sure what, but they werent going to miss it. They
refused to assert their most fundamental rights, for fear of irritating the UN members -- the
very states that invaded our territories, slaughtered our people, and attempted to exterminate our cultures. It was sorry spectacle, indeed.
The meeting proved to be a predictable success for invader-states of the United Nations.
It also marked a retreat from the forty years of international struggle towards indigenous
peoples' self-determination that took hold after the 71-day liberation of Wounded Knee in
1973. What most indigenous people around the world did not know about the HLPM/
WCIP was that, ridiculously, the final conclusions, or as they called it the Outcome Document (OD), of the WCIP had already been completed by the states -- before the conference ever began. The meeting was a charade, with the outcome pre-determined. There
was no need for any discussion, let alone debate. In fact, there was no need for the meeting, at all except as an example of self-serving kabuki theatre3, to allow states to perpetrate the fraud that they care anything about indigenous peoples.
The meeting was a retreat for indigenous peoples because the international indigenous
peoples movement over the past forty years has been influenced largely through four essential, strategic priorities. These four positions were consciously excluded, or were rendered meaningless, in the final Outcome Document (OD)4 of the meeting:
1. Self-Determination. The right of self-determination for indigenous peoples, that is, the
international legal right of indigenous nations freely to determine our political status and
freely to pursue our economic, social and cultural development, is a hallmark of the UN
Declaration on the Rights of Indigenous Peoples5 (UNDRIP) (Article3). Selfdetermination is mentioned nowhere in the OD.
2. The international personality of indigenous nations, and the international character of treaties between indigenous nations and invader states. This principle is an extension of self-determination and insists that indigenous peoples are not conquered nations and are not rightfully under the domination of, or occupation by, invader states. Similarly, the principle asserts that treaties between indigenous peoples and invaders must be
accorded international respect and be subject to impartial, international arbitration, as
alluded to in Article 37 of the UNDRIP. There is no mention, whatsoever, of treaties between indigenous nations and states in the OD.
3. The right of Indigenous peoples to control our territories, natural resources and
traditional knowledge. There are no guarantees in the OD to secure the free, prior and
informed consent (FPIC) of indigenous peoples prior to state or corporate invasions of
indigenous peoples territories. There is no mention of state's commitment to enforcing
FPIC. On the last day of the conference Canada explicitly stated that it would not support
FPIC because Canada refuses to relinquish its presumed supremacy over indigenous
nations. Canadas colonial arrogance was not unique; Canada simply admitted it with
the greatest blatancy.6 References to FPIC in the OD are gratuitous, having been rendered sterile by state pillaging of the substantive meaning of FPIC.

Tadodaho Sid Hill, Chief of

the Onondaga Nation, delivers the ceremonial welcome
to participants at the opening of the high-level plenary
meeting of the General Assembly fraudulently known
as the World Conference on
Indigenous Peoples.

The meeting
proved to be a
predictable
success for
invader-states
of the United
Nations. It also
marked a
retreat from
the forty years
of international
struggle
towards
indigenous
peoples' selfdetermination
that took hold
after the 71day liberation
of Wounded
Knee in 1973

FIRST NATIONS STRATEGIC BULLETIN

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Hijacked Conference continued from page 15

4. Dismantling the Doctrine of Christian Discovery. The legal bedrock upon which the
U.S., Canada, and most other settler states rationalize their invasion, domination and destruction of indigenous peoples. This legal doctrine, the foundation for all US federal Indian
law, legitimizes Christian, white supremacy and the theft of entire continents. The ongoing
legitimacy of the doctrine in settler-state law violates the UN Charter, both UN human
rights covenants, and the Conventional for the Elimination of Racial Discrimination.
Yet, the World Conference OD ignored the issue entirely, and left the Doctrine of Discovery completely unexamined, and intact.
Cree Grand Chief Matthew Coon Come attended
the UN HLP.

Certain UN
members, (and the
UN bureaucracy
itself, which
operates first and
foremost to protect
state interests)
were masterful in
establishing
indigenous
gatekeepers within
the UN system, and
in privileging those
who were in favor
of the HLPM/WCIP
as the "good/
reasonable
Indians," while
marginalizing
those who had
criticisms of it as
the "bad/hostile
Indians

FSIN Chief Perry

Bellegarde attended the UN HLP.

States can make no pretense of forthright implementation of the UNDRIP while ignoring
each of these four essential areas. Similarly, the indigenous people in the meeting can
hardly claim the mantle of "leadership" after volunteering as props in a sham process,
while allowing states to declare the meeting a success. The HLPM certainly proved to be a
success for states - in their expanding domination and domestication of indigenous peoples. The world conference process permitted states to evade all accountability for their
crimes against humanity, for genocide, and for their persistent, ongoing destruction of indigenous peoples, in the name of civilized progress, development, and globalization.
The state-controlled HLPM/WCIP process utilized three time-honored tactics against indigenous peoples, in achieving the deception of effective indigenous participation and
consent in its ersatz world conference:
1. Divide and conquer
2. Exclusion of the opposition, and
3. Ingratiation.
Certain UN members, (and the UN bureaucracy itself, which operates first and foremost to
protect state interests) were masterful in establishing indigenous gatekeepers within the
UN system, and in privileging those who were in favor of the HLPM/WCIP as the "good/
reasonable Indians," while marginalizing those who had criticisms of it as the "bad/hostile
Indians." By legitimizing the indigenous gatekeepers, the UN provided a level of insulation between the state parties who wanted the appearance of indigenous peoples' buy-in to
the HLPM/WCIP, and those indigenous peoples who rejected state manipulation, who
demanded respect and equal participation, and who refused to lend their consent to a
counterfeit world conference.
As it became clear that the indigenous gatekeepers could not achieve a global consensus
for indigenous peoples' collaboration in the HLPM plan, the UN simply began to exclude
and silence the opposition. When the North American Indigenous Peoples' Caucus
(NAIPC) decided that it was not going to accept subordination and inequality in the world
conference design, NAIPC representatives (both adult and youth) were systematically
excluded from any debates or decisions regarding the meeting. The UN surreptitiously
began to marginalize bad Indians and empower pragmatic Indians, who agreed to
comply with the world conference program. The "reasonable Indians", like the representatives from the Indian Law Resource Center (ILRC), the Native American Rights
Fund (NARF), the National Congress of American Indians (NCAI), and the International Indian Treaty Council (IITC) were validated by being allowed to remain in the UN
communications loop; they were rewarded with information, access, and sometimes
even funding, to facilitate their continued participation. This tactic took the form of explicitly denying funding to opposition delegates, while funding supportive ones, leading to the
censoring of oppositional voices in planning meetings for the WCIP. Delegates critical of
the WCIP were denied credentials, silencing their voices in the HLPM/WCIP. The states
strategy was to provide the deception of indigenous consensus by excluding those who
might have blocked consensus through the expression of critical or contrary perspectives.
The third tactic, ingratiation, was used flagrantly by certain indigenous delegates from the
US and Canada to circumvent the NAIPC bad/hostile Indians, and to solicit the US and
Canadian governments. In the US, the ILRC, NARF, NCAI, and IITC met and/or commu-

VOLUME 12, ISSUES 8-10

Page 17

Hijacked Conference continued from page 16

nicated directly with the US State Department representatives a number of times prior to the WCIP. In an apparent
quid pro quo for the U.S. indigenous NGOs agreeing to follow the game plan at the HLPM, the US government
tossed them a few crumbs. The crumbs came in the form of cosmetic support for uncontroversial postures from the
NGOs that in no way challenged the supremacy of US plenary power in domestic Indian law and policy. The good
Indian organizations will, of course, reject these characterizations, but the record speaks for itself. They allowed
themselves, and cajoled several tribal government reps, to be exploited as extras in the states kabuki theatre. For
their trouble, they came away from the meeting with absolutely nothing of substance.
One specific reflection of these cozy relations can be found in US representative Keith Harper's presentation to the
WCIP on September 23.7 Harper, a Cherokee but speaking for the United States government, was named this year
by Obama to be the US ambassador to the UN Human Rights Council. The number of similarities between
Harpers address, and the positions being circulated by the ILRC/NARF/NCAI alliance defies coincidence. Certainly, the pragmatic Indians are jubilant that Harper mentioned the US consideration of the possibility of a place
for Indian "tribal governments" somewhere, sometime in the UN system. The reasonable Indians (just like
those good Indians of previous eras) would be well advised not to hold their breath for the U.S. artifice to be realized, any more than the thousands of other promises that litter the historical relationship between the US and indigenous nations.
In the debates over the past two years, about whether NAIPC should withdraw from the HLPM/WCIP, a defense of
participation from North America was offered, based on the premise that it was important for indigenous peoples to
participate in the HLPM/WCIP because, "if you're not at the table, then you're probably on the menu." In other
words, to protect the gains of the past forty years, we must continue to participate in the UN process even, apparently, under conditions that might be disrespectful, unequal and destructive.
While watching the HLPM on the UN webcast, I thought of those debates and of the menu slogan. Another culinary
paraphrase came to mind, this time from the great Uruguayan author Eduardo Galeano: "your participation in this
process allows you only to suggest the sauce with which you will be eaten." Unfortunately, the most that came out of
this UN meeting for indigenous peoples was, as Galeano cautioned, the opportunity for indigenous peoples to
participate in a process that allows us only to suggest the sauce with which we will be eaten by the invader states and
corporations. We have been warned.

ENDNOTES:
1. Although the use of the word fraud might seem hyperbolic and divisive, it is, in my view, more accurate than a term
such as pretension. Fraud describes an intentional deception with the goal of depriving people of their property or
their rights. Some well-meaning or naive people were drawn into this process, and I do not mean to impute bad motives to them. Other indigenous gatekeepers in the UN system clearly understood what was happening and freely participated in it, fabricating rationalizations and excuses, at every turn. It is clear that some invader states advanced the
WCIP to continue the state/corporate theft of indigenous peoples territories and to deprive indigenous peoples of
fundamental rights under international law, as discussed below. Ultimately, the goal of these states was to use the
WCIP to reduce and incorporate the Declaration on the Rights of Indigenous Peoples into domestic law, imprisoning
indigenous peoples in the legal semantics of invader states. This fraud began with the imposition of the official title of
the meeting, A High Level Plenary Meeting (HLPM), to be known as The World Conference on Indigenous Peoples.
Anyone familiar with the UN system knows that a HLPM is not synonymous with a World Conference. An authentic
world conference is 10-14 days long, with thousands of participants, speakers, rallies, scholarly discussions, and with
a final global plan of action to advance the goals of the conference. Examples of genuine world conferences are the
World Conference on Women in Beijing in 1995, and the World Conference Against Racism in Durban, South Africa in
2001. This meeting in no way resembled a genuine world conference. It was analogous to one proclaiming, This is
my Prius, to be known as a Ferrari, with the irrational expectation that the world should, in fact, acknowledge your
Prius as a Ferrari. The fraudulent design of the plan was so clear to many indigenous people in North America, that the
North American Indigenous Peoples Caucus called for the cancellation of the meeting, altogether, and refused to participate in it; see: http://indiancountrytodaymedianetwork.com/2014/03/12/naipc-says-un-indigenous-conferenceinsults-indigenous-peoples-153946
2. This is a variation of the social anxiety disorder known as Fear Of Missing Out (FOMO). FOMO is a form of neurosis
though which a person is compulsively concerned that s/he might miss an opportunity for social interaction, personal
recognition, profitable investment or other satisfying event. One problematic with the indigenous FOMO crowd attending the HLPM was that because they never intended to confront or to challenge the racist, structural domination of

FIRST NATIONS STRATEGIC BULLETIN

Page 18

Hijacked Conference conclusion from page 17

Oren Lyons, Onondaga

Faithkeeper attended the UN
HLP.

states over indigenous peoples, their very presence at the WCIP provided the appearance
of consent to the states design to diminish the rights of all indigenous peoples. At the same
time, the FOMOs provided cover for the states that acknowledged the indigenous FOMOs
in the room, and crowed that indigenous peoples had been consulted, and had provided
comprehensive engagement in the sham meeting. The states projected the FOMO participants as proxies for all indigenous peoples around the world. See paragraph 2 of the
Outcome Document for the High Level Plenary meeting, http://www.un.org/en/ga/search/
view_doc.asp?symbol=A/69/L.1
3. As a political metaphor, kabuki theatre is used here to describe actions that are an artifice, insincere, and something done for show, an act that pays only lip service to the stated
goal.
4. http://www.un.org/en/ga/search/view_doc.asp?symbol=A/69/L.1

As a political
metaphor,
kabuki theatre
is used here to
describe
actions that are
an artifice,
insincere, and
something
done for show,
an act that
pays only lip
service to the
stated goal

5. http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf
6. http://www.canadainternational.gc.ca/prmny-mponu/canada_un-canada_onu/
statements-declarations/other-autres/2014-09-22_WCIPD-PADD.aspx
7. http://webtv.un.org/search/united-nations-system-action-to-implement-the-rights-ofindigenous-peoples-world-conference-on-indigenous-peoples-roundtable1/3801114935001?term=World%20Conference%20on%20Indigenous%20Peoples
Harpers comments begin at 2:06:00 on the UN Web TV video.
Glenn Morris (Shawnee) is a member/spokesperson for the Leadership Council of
the American Indian Movement of Colorado. He is a professor of political science at
the University of Colorado at Denver, where he directs the 4th World Center for the
Study of Indigenous Law and Politics. He has been active in the defense of Native nations at the United Nations since 1981.
[Reprinted from http://indiancountrytodaymedianetwork.com/2014/10/16/invader-states
-hijacked-un-world-conference-indigenous-peoples]

Global Coordinating Committee of the UN HLP.

Opening of the UN High Level Plenary Fraudulently

called the World Conference on Indigenous Peoples.

VOLUME 12, ISSUES 8-10

Tsilhqotin Nation v. British Columbia 2014 SCC

44 Case SummaryPosted June 27, 2014

Page 19

In a watershed decision released today, the Supreme Court of Canada (SCC) allowed the Tsilhqotin Nations appeal and, for the
first time in Canadian history, granted a declaration of Aboriginal title. In doing so, the Court confirmed that the doctrine of terra nullius (that no one owned the land prior to Europeans asserting sovereignty) has never applied to Canada, affirmed the territorial nature
of Aboriginal title, and rejected the legal test advanced by Canada and the provinces based on small spots or site-specific occupation. The SCC overturned the Court of Appeals prior ruling that proof of Aboriginal title requires intensive use of definite tracts of
land and it also granted a declaration that British Columbia breached its duty to consult the Tsilhqotin with regard to its forestry authorizations. This case significantly alters the legal landscape in Canada relating to land and resource entitlements and their governance.
The SCC definitively concluded that the trial judge was correct in finding that the Tsilhqotin had established title to 1,750 square kilometres of land, located approximately 100 kilometres southwest of Williams Lake. The Court reaffirmed and clarified the test it had
previously established in Delgamuukw for proof of Aboriginal title, underscoring that the three criteria of occupation: sufficiency,
continuity (where present occupation is relied upon), and exclusivity were established by the evidence in this case.
SUFFICIENT AND EXCLUSIVE OCCUPATION
The SCC reasoned that Aboriginal title was not limited to village sites but also extends to lands that are used for hunting, fishing, trapping, foraging and other cultural purposes or practices. Aboriginal title may also extend beyond physically occupied sites, to surrounding lands over which a Nation has effective control. The SCC endorsed further examples of Aboriginal occupation sufficient to
ground title including warning off trespassers, cutting trees, fishing in tracts of water and perambulation.
Further, the SCC affirmed the importance not only of the common law perspective but also of the Aboriginal perspective on title including Aboriginal laws, practices, customs and traditions relating to indigenous land tenure and use. The principle of occupation,
reasoned the SCC, must also reflect the way of life of Aboriginal people, including those who were nomadic or semi-nomadic.
The SCC reasoned that the criterion of exclusivity may be established by proof of keeping others out, requiring permission for access
to the land, the existence of trespass laws, treaties made with other Aboriginal groups, or even a lack of challenges to occupancy
showing the Nations intention and capacity to control its lands.
WHAT RIGHTS DOES ABORIGINAL TITLE CONFER?
The Court reasoned that Aboriginal title holders have the right to the benefits associated with the land to use it, enjoy it and profit
from its economic development such that the Crown does not retain a beneficial interest in Aboriginal title land. Expanding on its
reasons in Delgamuukw, the SCC concluded Aboriginal title confers possession and ownership rights including:

the right to decide how the land will be used;

the right to the economic benefits of the land; and

the right to pro-actively use and manage the land.

These are not merely rights of first refusal. Indeed, the Court recommended that governments and individuals proposing to use or
exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.
The SCC also reasoned that the right to control the land conferred by Aboriginal title means that governments and others seeking to
use the land must obtain the consent of the Aboriginal title holders. If consent is not provided, the governments only recourse is to
establish that the proposed incursion on the land is justified under s. 35 of the Constitution Act, 1982.
JUSTIFICATION ANALYSIS
The Court clarified the justification analysis it set out in Sparrow, Gladstone and Delgamuukw. The Court reasoned that the Crowns
burden of demonstrating a compelling and substantial legislative objective must be considered from the Aboriginal perspective as
well as from the perspective of the broader public in a manner that furthers the goal of reconciliation between the Crown and Aboriginal peoples. Further, the Crown must also go on to show that the proposed incursion on Aboriginal title is consistent with the
Crowns fiduciary duty towards Aboriginal people. The SCC reasoned that the Crowns fiduciary duty means that: (1) incursions on
Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land; and (2) the fiduciary duty infuses an obligation of proportionality into the justification process that is inherent in the reconciliation process. Implicit in
the Crowns fiduciary duty is the requirement that the infringement be necessary to achieve the governments goal that the benefits
not be outweighed by the adverse effects on the Aboriginal interest, and that the government go no further than necessary to achieve
its goal.
The SCC warned that if governments do not meet their obligations to justify infringements to Aboriginal title, and do not act consistent
with their fiduciary duties, project approvals may be unraveled, and legislation may fall. The message is that governments that dont
justify their actions act at their peril. The Court offered the following example:
If the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing. Similarly, if legislation was validly enacted
before title was established, such legislation may be rendered inapplicable going forward to the extent it unjustifiably infringes Abo-

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Tsilhqotin Summary conclusion from page 19

riginal title.
IMPACTS OF PROVINCIAL LEGISLATION
In light of its declaration of Aboriginal title, and based on the Forest Acts definition of Crown timber and Crown lands not including
timber on Aboriginal title lands, the SCC found that the Forest Act did not apply to the Tsilhqotins Aboriginal title lands. The SCC concluded that the legislature intended the Forest Act to apply to land under claims for Aboriginal title up to the time title is confirmed by
agreement or court order. However, once Aboriginal title is proven, the beneficial interest in the land, including its resources, belongs to the Aboriginal title holder.
On the question of whether provinces can legislate in relation to Aboriginal title and rights, or whether this amounts to an interference
with a core area of federal jurisdiction under s. 91(24), the SCC held that the doctrine of inter-jurisdictional immunity did not apply.
The SCC reasoned that the inter-jurisdictional issue in this case was not one of competing provincial and federal powers but, rather, of
addressing the tension between the rights of Aboriginal title holders to use their lands as they choose, and the authority of the Province
to regulate land use. The SCC concluded that the guarantee of Aboriginal rights in s. 35 of the Constitution Act, 1982 operates as a limit
on both federal and provincial legislative powers; therefore, the proper way to curtail interferences with Aboriginal rights and to ensure respect from Crown governments, is to require that all infringements, both federal and provincial, are justified.
MOVING FORWARD
This case provides First Nations with significantly improved opportunities to advance their Aboriginal title and rights in a manner that
reflects their vision, values and perspectives. The SCCs decision essentially requires that the Crown and industry meaningfully engage
with Aboriginal title holders when proposing to make decisions or conduct business on their territories. This engagement can no longer
be limited to small spots but must be achieved with a view to tangibly addressing the incidents of title affirmed by this case; namely,
the right of enjoyment and occupancy of title land; the right to possess title land; the right to economic benefits of title land; and the
right to pro-actively use and manage title land. In this light, as the Court emphasized at para. 97 of its decision, the Crown and industry
would be well advised to avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested
Aboriginal group.
Pragmatically speaking, this case provides sound guidance for effective and balanced consultation and accommodation discussions
regarding decisions taken on Indigenous lands. The principles and laws affirmed in this case, once honoured and implemented, ought
to re-invigorate negotiations in relation to the outstanding land question in British Columbia. Opportunities abound.
We acknowledge, with much gratitude and respect the vision, courage and leadership of the Tsilhqotin people in advancing this case.
This case summary provides our general comments on the case discussed and should not be relied on as legal advice. If you have
any questions about this case or any similar issue, please contact one of our lawyers. [Reprinted courtesy of Mandell, Pinder LLP]