PERSPECTIVE Turtle Island Native Network www.turtleisland.org

OPEN LETTER: FIRST NATIONS GOVERNANCE BILL, National Post June 19 editorial. For further comment on the First Nations Governance bill, Chief Stewart Phillip can be reached at (250) 490-5314. ======

Re: Jonathan Kay’s June 19, 2002, Editorial “A better life for natives – a whiter one, too” Dear Editor: I am no longer shocked by the misleading and anti-Aboriginal racist drivel, which routinely passes for editorial comment on Aboriginal policy by the National Post, particularly by Jonathan Kay. After all, Mr. Kay has made his socially conservative views about assimilating First Nations known in previous articles written for this newspaper. Mr. Kay apparently reflects the views of owners of the Canwest Global chain of newspapers since similar anti-Aboriginal editorials have appeared across the country simultaneously this past week. However, as a Chief of my community and President of the Union of B.C. Indian Chiefs, I must challenge Mr. Kay regarding his bigoted and erroneous interpretation of First Nations opposition to the federal government’s proposed “First Nations Governance Act” (Bill C-61). As your readers may recall earlier this week, Mr Kay made a number of odious assertions about why he believes that First Nations Chiefs oppose Bill C-61, some of Mr. Kay’s comments bear repeating here: · The legislation will force [Chiefs] to adopt state-of-the-art accounting and electoral practices that will limit their ability to dole out cash and favours to cronies. · [National Chief Matthew] Coon Come relies on the racism charge only because he can’t attack the merits of the legislation without seeming to be an apologist for the nepotism, hereditary chieftaincies and corruption the legislation is designed to phase out. · >From Red Deer to Ramallah, tribal societies are typically dominated by strongmen who dole out favours to kin and clan. · Canada’s natives, itinerant foragers and hunters two centuries ago, are now sedentary welfare collectors. Their relationship with the land has eroded greatly because they no longer depend on it for food. · Thanks to television, they are also abandoning native languages in favour of English and French, and have largely shed their animistic faiths. · Many chiefs are actually Christians. Mr. Coon Come himself belongs to an evangelical group and recently spent a year at a Florida Bible college. · In short, one of the only authentic elements of native culture that remains is the one Mr. Nault is targeting: the traditional patriarchal, kin-based system for distributing resources and choosing leaders. · By Euro-Canadian lights, “kin-based” is merely anthropological shorthand for “nepotistic”; “patriarchal” means sexist; and “traditional” means undemocratic. If going Euro is the price natives have to pay for reforming their political structures and cleaning up corruption on reserves, so be it. · The new legislation has been advanced under the false conceit that we can promote aboriginal economic well being and protect authentic native cultures simultaneously. · It is this conceit that prompts Ottawa to encourage Indians to remain on remote, economically desolate bantustans instead of migrating to city jobs. · While the First Nations Governance Act will help make some life more tolerable on those bantustans, it won’t solve the underlying problem. Most Indians will remain second-class citizens until Ottawa has the courage to use the A[ssimilation] word openly.

I find it reprehensible that a national newspaper would allow Mr. Kay to express such patently racist opinions, which are not only grossly ill informed, but in my opinion, Mr. Kay’s views border on promoting hatred against First Nations. I want to attempt to correct the misconceptions caused by Mr. Kay’s diatribe and give my own reasons for opposing the federally dictated “First Nations Governance Act”(Bill C-61). To understand why most First Nations, and not just their leaders, oppose Bill 61, one must know something about the true history of Canada and how the Indian Act has impacted the Aboriginal and Treaty rights of Indigenous First Nations in what we now call Canada. So I must make some mention of it here. Only then can you understand how miraculous it is that any descendents of First Nations have survived to modern times. Then I will comment on our contemporary situation regarding Canada’s Bill C-61. The Indian Act: In Canada, first the French and then British could not exterminate the numerous and powerful First Nations. Instead the British Crown conducted a dishonest policy of on the one hand, establishing political and economic relations with First Nations through Treaties and Prerogative instruments, such as the Royal Proclamation of 1763, while on the other hand, planning for the colonization of North America through British occupation, settlement and possession. Through the Royal Proclamation of 1763 the Crown assumed trust and fiduciary responsibilities to First Nations, to protect their rights and interests from frauds and abuses. However, by 1812, the Imperial government could not afford to maintain its empire and began to off-load fiscal responsibilities to the colonial governments in exchange for a devolution of powers. Throughout the 19th century the protective aspects of the First Nations-Crown relationship were eroded and replaced with the Canadian government policy objectives of assimilation and civilization. In 1857 "An Act for the Gradual Civilization of the Indian Tribes of the Canadas" was passed. The purpose of this act was the "gradual removal of all legal distinctions" between Indians and settlers. Moreover, it provided criteria for enfranchisement. In 1876, the Government of Canada under the authority granted to them by the British Parliament in 1867, consolidated all pre-confederation legislation regarding First Nations into the infamous Indian Act. This piece of legislation was designed to systematically undermine the sovereignty of First Nations and restrict them to small tracts of land called "reserves". The Crown then illegally and immorally gave the rest of the lands and resources to provinces, territorial governments and third party interests. From 1876 until now, First Nations have resisted the application of the Indian Act and our collective efforts were engaged in a long legal and political struggle for the recognition and accommodation of our Aboriginal and Treaty rights by the Canadian Confederation. Section 35 Constitutional Protection: It has been 33 years since the Chiefs from across British Columbia created our organization, the Union of B.C. Indian Chiefs, to fight the federal government’s 1969 White Paper Policy to terminate our special historic, legal and political status as Indian Nations with land rights. From British Columbia we joined Treaty First Nations at various times to stop the federal government from terminating our inherent, Aboriginal and Treaty rights and Aboriginal title. It was 21 years ago, in 1980, when the Union of B.C. Indian Chiefs assisted in organizing a train to Ottawa, which we called the “Constitution Express”. We helped our leaders and grassroots people get to Ottawa, to ensure that our title, rights and interests were included in Canada’s new constitution, which was under negotiation at that time. From Ottawa a group of our leaders and people continued on to lobby in Europe. We also joined with Treaty First Nations in a British Lobby effort, and with Treaty First Nations we jointly launched a court action in England to try and stop the Constitutional Patriation process, and although we didn’t succeed in stopping the process we did achieve judicial support in England for the notion that no Parliament should lessen the guarantees the Imperial Crown made to our Indian Nations in Canada. All of these political and legal actions helped to pressure the federal and provincial governments to agree to have section 35 placed in Canada’s Constitution, and together these political and legal actions set the stage for First Nations involvement in Canadian constitutional reform throughout the 1980’s into the early 1990’s, when Canada’s constitutional talks ended. The position our national organization, the Assembly of First Nations took throughout these constitutional talks is that section 35 is a “full box”, which means that all of our inherent, aboriginal and treaty rights are already constitutionally protected by section 35, including our inherent right to self-government. This is the First Nations definition of section 35. Since the time of first contact with Europeans our ancestors have insisted on a nation- to-nation relationship. All of the earliest treaties and agreements recognized Indian Nations. Nationhood means sovereignty. We may have to share it with the Canadian State, but we have never surrendered our sovereignty! When representatives from Indian Nations began traveling to England and the League of Nations in the early 1900’s to press our case for recognition of our Nationhood, the Canadian Parliament responded with an amendment to their colonial Indian Act in 1928. This dramatically affected our grandparents’ generation. The Indian Act amendment prohibited our grandparents from conducting ceremonies, it prohibited them from hiring lawyers to protect our rights, and it even prohibited our grandparents’ generation from having gatherings unless an Indian agent allowed it. This section of the Indian Act was in place until the 1951 Indian Act amendments. For over 23 years a generation of our people grew up having their parents take the ceremonies underground, and to hold their community meetings in secret from the Indian Agent and the RCMP! For many First Nations peoples alive today, we are talking about our grandparents’ and parents’ generations that this happened to. So in a very real sense section 35 does represent the culmination of a long, terribly difficult political and legal struggle for the constitutional protection of our aboriginal and treaty rights! First Nations will never forget this. Our ancestors did their best so that we would survive as Nations. This responsibility has now been handed over to our generation, and we are now, having to grapple with the effects of court decisions, which attempt to interpret section 35. Starting in 1990, the Supreme Court of Canada began to rule on the meaning of section 35, through it’s landmark decisions in Sparrow, Delgamuukw and Marshall to name just a few of the major ones. We have had some success in the courts, even though the Supreme Court of Canada has taken a narrower view of section 35 than we do. The courts definitions of aboriginal and treaty rights go far beyond the federal definitions set out in their land claims and self-government policies and negotiation processes. The Supreme Court of Canada has also held that section 35 rights have to be assessed on a case-by-case approach. Federal Termination Policies: The federal government is also following the court decisions and rather than be guided by these decisions, they have aggressively changed their policies and negotiation positions to try and ensure that section 35 becomes an “empty box”, or as close as they can get to it, through the final settlements or agreements achieved through land claims or self-government negotiations. While we have been securing judicial rulings on the protections section 35 affords our aboriginal and treaty rights, the federal government has been attempting to use legal techniques in negotiation processes across the country to undermine our unique constitutional status. Thus taking advantage of First Nations who are in dire social and economic circumstances. The federal objective is still to try and assimilate us by positioning us within the Canadian federation as simple municipalities or ethnic corporations under their laws. This means changing our legal status, getting rid of Reserve lands and our tax immunity. In essence, it is the rapid offloading of their fiduciary obligations through program devolution and delegation of authorities. Ultimately, Canada wants us to administer our own poverty. To do this Ottawa is still using the colonial Indian Act as their “command and control” system. Ottawa has gone as far as using financial intimidation to limit our critical comments of how they are approaching our Aboriginal title and treaty interests. The federal definition of section 35, is clearly contained within their 1995 Aboriginal Self- Government policy, their so-called “inherent right” policy. The 1995 federal self-government policy basically sets out what and how they will negotiate self-government and over what lands it will apply, such as Reserve or land claim settlement lands. It is a delegated authority model of self-government, with federal legislation, and likely provincial legislation, being required to establish the “new” entity. In our view, it will result in a federally chartered municipality to begin with and likely provincially chartered, as the federal funding disappears over time. We know the federal government likes to brag about the existence of 80 self- government negotiation tables representing hundreds of bands, and tens of thousands of Indian peoples, but to our knowledge there has not been any real agreement come from these negotiation processes, other than the Nisga’a Final Agreement in British Columbia, which the federal government insists in not a “template” for other agreements. However, I must tell you, that the federal government is demanding, as a pre-condition of reaching a settlement agreement with those First Nations participating in the British Columbia Treaty Commission process, that they agree to give up section 91(24) status for their existing reserve lands, and that they agree to give up their tax immunity status from income tax. After a few years, the federal government was frustrated by the lack of agreements coming out of the B.C. Treaty process in particular, and the self-government negotiations as a whole. This was the case when the Supreme Court of Canada handed down the Corbiere decision in 1999. Legislating Assimilation – Canada’s Final Solution: The federal government, as a way to get their assimilation approach backs on track, seized on the Corbiere decision. Although it was a narrowly defined case regarding the Indian Act requirement, that to participate in band elections, a band member had to be “ordinarily resident” on reserve, there is no question that this case triggered the federal First Nations Governance Initiative. When the Supreme Court of Canada struck down section 77 of the Indian Act as being inconsistent with section 15 of Canada’s Charter of Rights and Freedoms, it opened the door to a much larger legal debate around the Indian Act. The court gave the federal government until November 2000, to consult on how to put a new system in place for voting, which would include all members of a band, regardless of residence. First Nations know what happened after that. The Department of Indian Affairs amended their elections regulations by the November 2000, the court imposed deadline, and began to apply the “new” election regulations to the bands that hold leadership elections in accordance with section 74 of the Indian Act, but this did not to apply to custom bands. In response to the Corbiere decision, the federal Minister of Indian Affairs, Robert Nault, announced that besides the new elections regulations, he was also going to introduce new legislation regarding band elections. This was the impetus for Canada’s so-called “First Nations Governance Act” (Bill C-61). The Canada’s First Nations Governance Bill is a process where government is attempting to impose national standards in the areas of the legal status of bands, elections, and financial and operational accountability through legislation and regulation. The federally dictated First Nations Governance Act (Bill C-61) is not a First Nations initiative. In fact, the Chretien government is also planning on introducing a companion Bill tentatively entitled the “First Nations Financial Institutions Act”, which will be imposing four new national institutions regarding taxation, land management and collection of statistical data about First Nations. Mobilizing Our Peoples for Action: Based upon a number of internal federal documents we have obtained, we are certain the federal government is employing a communications strategy designed to trick our people into believing that they want to help build ‘vibrant communities and economies’, when in fact, the federal intent is to continue to ignore and accelerate the extinguishment of our constitutionally protected and judicially recognized title and rights. From the Union of B.C. Indian Chiefs perspective, the time for talking is over. We are in the process of mobilizing our community members, to stop or challenge the federal government’s First Nations Governance Act and related legislation. We intend to use the time we have before the fall session of Parliament resumes, to work together with other First Nations from across the country on a coordinated strategic response that Ottawa cannot afford to ignore. We will continue to vigorously defend our Aboriginal title, rights and interests and we must build not only on the legal victories but also on the beliefs and memories of our parents and grandparents have handed to us. We must bear in mind, that we should never, ever surrender the birthright of our children and grandchildren. Never.