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First Nations Plummet - A Source of Political Imbalance in National Indian Politics and Crown Government Relations
By Russell Diabo The First Nations Summit has continually collaborated with the federal government in order to implement national federal self-government, land claims and fiscal policies, both in B.C. and across Canada. This is not in itself surprising, since the First Nations Summit was a co-creation of the federal and provincial governments, as well as a number of prominent B.C. Indian leaders.
mainland and Northwestern sub-regions who would later form the B.C. First Nations Summit, has exercised undue influence within the Assembly of First Nations decision-making structures and over the elections of subsequent National Chiefs and their respective election platforms. Under the existing AFN Structure the First Nations Summit represents a source of political imbalance at the national level that should be addressed by the First Nations Leaders from the other regions across the country. The Nation-to-Nation relationship is being negatively impacted by this political imbalance, because each First Nation has its own set of facts and political-legal history with the Crown governments. Each First Nations has rights that are now constitutionally protected, and for most First Nations it is the people who are at the top of the decision-making process, not the Chiefs. However, the First Nations Summit is working with the federal government both inside and outside of the AFN structure and meetingsto promote the federal policies, legislation, principles and standards, including the establishment of National Institutions, which are structures designed to fulfill long-term federal policy objectives . Although these governance, land claims, and fiscal Institutions and legislation have largely been developed in Ottawa by the federal bureaucracy for application mainly in British Columbia, they are also the structures the federal government intends to use as part of their management framework in their relationships/negotiations with First Nations in other regions of Canada as well. These are top-down approaches, which are designed to pressure First Nation leaders to convince their own First Nation peoples to ratify once and for all time final agreements. Dont forget about thealbeit heavily censoredrelease to the media of the secret Pre-Budget Deck prepared for Indian Affairs Minister, Andy Mitchell, before the February 2004, federal budget. The secret Deck warned of the looming tidal wave of major fiscal pressures due to the escalating costs of self-government, land claims and litigation. The Deck recommended that the federal government develop a resourcing action-plan geared toward promoting self-reliance. This may sound good on the surface, but what is meant in Ottawa terminology is to settle land claims as quickly and cheaply as possible. It also entails offloading the ongoing costs of programs and services onto provincial and municipal governments, as well as, onto the First Nations themselves, by encouraging and supporting their migration off-Reserve into towns and cities. The members of the First Nations Summit have so far, borrowed approximately $200 million in loan funds through the BCTC process, to negotiate land claims and self-government, and with such indebtedness the federal and provincial governments seem to have the First Nations Summit
membership over a barrel. Once the meter is running the government uses these loans as leverage to try and force First Nations to make concessions.
Advisory Committees: Instead of having a direct role in the management of land and resources within their traditional territories, First Nations would be members of advisory committees on carious issues like fish and wildlife, trapping, forestry, tourism, economic development, etc. These advisory committees are made up not only of First Nations, but often include third parties like tourist outfitters, sports hunters, etc. In most cases they would be subject to provincial laws, and will be subject to provincial policies and practises , since Canada takes the position that the provinces own the land. These committees appear geared to become the sole consultation mechanism for other governments when dealing with the First Nations, and final agreements are worded in such a way that any legal requirements for consultation with First Nations through other means are removed. Taxation: As part of a final agreement, First Nations are being required to give up their tax immunity. Based on the offers made in BC, the GST is phased in over 8 years, and income tax is phased in over 12 years. Also, First Nations would be expected to tax their own citizens directly to pay for services. Similar conditions apply to the agreements which have been reached in Northern Canada. Extinguishment/Conversion: As already mentioned, the federal government refuses to recognize Aboriginal Title. But just in case, it wants to get certainty out of land claims agreements, which means that the only rights a First Nation will have at the end of the day are those rights which are listed in the final land claims agreement. Any undefined Aboriginal and Treaty rights will be converted into settlement agreement rights that are spelled out n the agreement. The federal and provincial governments, based on thei policies, have a veto over what these will be. The way the final agreements are worded, there are no surviving rights that future generations can rely on, except those rights that are spelled out in the agreement. Future generations are prevented from taking any legal action related to pre-existing Aboriginal ir Treaty Rights. Self-Government: If the province and the federal government agree, aspects of self-government can be built into an agreement, but only with sectors that are integral to their culture and identity, such as, education, child and family services, health, and policing. But even these things will be subject to federal and provincial control over programs and funding. As well, federal, provincial and municipal laws relating to lands will apply. Basically what is being offered is a form of municipal-style government, under provincial and federal control. Programs and Services: Most final agreements contain a provision that says that First Nations will continue ot be entitled to programs and services that are made available to other First Nations from time to time. But, as most communities know, Canada has been working outside of the Comprehensive Claims Policy to reduce its responsibilities for programs
and services, devolving responsibilities and fiancial liabilities to First Nations and, in some cases, provincial governments. It has also been working towards having First Nations assume more of the costs of providing programs and services through own source revenues, and ultimately, taxation of their members. All of this fits in with the land and taxation provisions of the Comprehensive Claims Policy agreements, that provide for eventual taxation of members and their lands.
Summit is Vulnerable
Their weak negotiating situation of the groups that comprise the First Nations Summit leaves them vulnerable to continuing to accept and cooperate with the federal governments policies, in order to keep the so-called treaty-making process, and the related funding alive, despite the fact that not one Treaty has been produced from the BCTC process since the process was established almost twelve years ago, because First Nation peoples keep rejecting the final offers. From the analysis above one can understand why this is so.
The Nisgaa Final Agreement is an exception, and it was negotiated outside the BCTC process. However, their Final Agreement also represents a compromise of their constitutionally protected (section 35) rights and key provisions of the Nisgaa Final Agreement are being used by the federal government as a template for negotiations with First Nations within the BCTC process and outside of B.C. The situation the members of the First Nations Summit have gotten themselves into, shouldnt be used by the federal government to prejudice the constitutionally protected (section 35) Aboriginal and Treaty Rights of First Nations not in the BCTC process. But the federal government is using the First Nations Summit. Consequently, there is good reason for First Nations outside of the BCTC process, and outside of the B.C. region, to closely examine the undue influence the First Nations Summit exerts at the national level through the Assembly of First Nations structure and meetings, and directly lobbying with the federal government. The First Nations Summit obviously has its own agenda, which is tied to implementing the existing federal policies on self government, land claims and fiscal relations.
made an agreement with the B.C. south, central, interior First Nations to support their Aboriginal title and rights position. In 2000, Phil Fontaine lost the AFN election to Matthew Coon Come, when the First Nations Summit threw their support behind Matthew Coon Come, because Phil Fontaine had started to press the federal government to reform the federal Comprehensive Land Claims Policy so that the policy would be consistent with the Supreme Court of Canadas 1997 landmark Delgamuukw decision, which the First Nations Summit feared would disrupt their negotiations under the B.C. Treaty Commission process. Under Matthew Coon Come, the AFN dropped the national initiative to have the federal Comprehensive Claims Policy reformed to be consistent with the recent case-law. In 2003, Phil Fontaine was returned as AFN National Chief, with the First Nations Summit once again supporting him over Matthew Coon Come and Roberta Jamieson, because Fontaine agreed to support the B.C. Treaty Commission process and Bill C-23 (formerly Bill C-19) the First Nations Fiscal and Statistical Management Act. While Fontaines Getting Results election platform contained a section on: Implementing Treaties, Delgamuukw and Marshall, Through Resource and Revenue Sharing: Treaties that reflect our nationhood and rights. Marshall re-affirms our Treaty rights to resources and revenues. Delgamuukw recognized that Aboriginal Title over our traditional territories exists and that Aboriginal Title includes an economic component. A proactive claim settlement strategy driven by a strong First Nation driven policy framework. Phil Fontaines ability to deliver on this and other election promises to the First Nations Summit, and others, depends largely on the willingness of the federal Liberal government of Prime Minister Paul Martin to agree to reform the federal land claims policies.
As part of the Liberals social policy considerations, they are limiting the federal focus to the so-called Quality of Life issues of education, health, housing and economic development, not a rights-based agenda, addressing the long-standing scope and content of constitutionally protected (section 35) rights. The political-legal, constitutional matters of accommodating and implementing First Nations Inherent, Aboriginal and Treaty Rights are left to negotiations under Jean Chrtiens Aboriginal Legacy policies on selfgovernment, specific and comprehensive claims, among other policies. This places the membership of the First Nation Summit in a particularly tough situation, as the federal position is hardening to a take it or leave it offer at the Treaty tables.
Canada-Aboriginal Roundtable
Paul Martins Canada-Aboriginal Roundtable held in April 2004, set out his approach to assimilate First Nations into Aboriginal Canadians, by focusing on programs and services, while putting First Nations rights on the backburner as other issues. The B.C. First Nations Summit had key people attending the Roundtable: Shawn Atleo, AFN-BC Vice-Chief Wendy Grant-John, Co-Chair, AFN Renewal Commission Manny Jules, Spokesperson, First Nations Financial Institutions There were federal commitments to each of the National Aboriginal Organizations coming out of the Roundtable. For First Nations the AFN National Chief, Phil Fontaine was to work with INAC Minister, Andy Mitchell, to develop an AFN-INAC Joint Agenda. Building a Joint Agenda As the last issue of the Bulletin reported, AFN and INAC are working on the follow-up to the Roundtable with the development of a draft document entitled Building a Joint Agenda: Implementing the Commitments of the Government of Canada and the Assembly of First Nations, dated April 28, 2004. The draft Joint Agenda document proposes a bilateral AFN-INAC process as a structure to address issues coming out of the roundtable, but one glaring omission is the federal Comprehensive Claims Policy. In fact, Treaties are listed under a category in the document entitled Other Unresolved Policy Matters.
What impact hasand willthe First Nations Summits direct lobbying and consultations with the federal government outside of the AFN structure and meetings have on national policies as they affect other First Nations-Crown relationships? How do First Nations interested in the recognition, implementation and protection of inherent, aboriginal and treaty rights get these important matters on the federal agenda? How do others protect their rights from the BCTC model, which affirms the very federal policy frameworks many First Nation peoples are opposed to? How can AFN be restructured to protect the diversity among First Nations and their relationships with Crown governments? In the end, all of these federal policies are based on a top down approach, which is premised on getting First Nation leaders to convince their members to accept the final offers from Crown governments as the best they could doFirst Nations peoples deserve way better than that!