The following story was originally published here and is being republished under a new title.
Written by Winona LaDuke and Frank Jr Molley
Mi’kmaq and Maliseet reserves in Atlantic Canada are the sites of a new major battle between First Nation activists and the Canadian government that may represent the next stage of the Idle No More movement. The flash point came when the Conservative government threw down the gauntlet with what some call sign-or-starve consent agreements presented to First Nations right across the country.
Facing increasingly strong opposition to both its extractive industries and its federal policies, Prime Minister Stephen Harper’s government has adopted a hard-line strategy seemingly designed to eliminate First Nations’ negotiating power and rights. Harper’s cudgels are annual contribution agreements between the government and the First Nations that have new, questionable appendices, that are forcing some of the poorest communities to take it or leave it, or worse, face third-party management, which would essentially mean having the Canadian government manage their finances and governmental affairs. At stake here is title over Indian lands and minerals, as well as a host of choices on the future direction of Canada.
The government seems to be focused on getting de facto termination of many constitutionally and treaty protected rights of First Nations. Its first thrust in this battle was this past fall’s Bill C-45, which gutted most of Canada’s environmental laws and was the spur for last year’s Idle No More movement. “It took away a lot of the treaty muscle First Nations have,” says Nina Wilson, one of Idle No More’s founders, of that bill.
Since the eruption of the Idle No More movement in early December, there have been many amendments to Canadian laws that threaten aboriginal peoples rights and their traditional lands, all of them enacted as part of what the government calls “Canada’s Economic Action Plan.” Although dubbed a long-term plan to strengthen the Canadian economy, the majority of the “actions” in this plan will curtail aboriginal peoples rights over their lands and resources. The government appeared to be undermining the traditional “derogation” provision, a clause that Chelsea Vowel, a Métis scholar and blogger for Apihtawikosisan.com, explains “is central to every agreement between First Nations and the Canadian government.”
A non-derogation clause in aboriginal law generally reads like this: Nothing in this agreement shall be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.
In “Are you alarmed? You should be,” an article posted on Apihtawikosisan.com, Vowel explains that these new my-way-or-the-highway agreements include language that is, “typical legal doublespeak. Your rights are protected… unless we need to violate them to carry out this legislation that we did not create with adequate consultation with you and further, we will not consult with you as we carry out these legislative duties.”
The new consent agreements bearing these bits of subterfuge are the staple of financial support for First Nations, funding essential health care, education and housing. “Some new agreements with the bands are designed to force a land surrender,” says Wilson. “In other cases, basic rights, like the right to potable water—which is not available in a number of First Nations—are being linked to a diminishment of rights.”
All this comes at a time when many First Nations are in dire financial straits. “We have been receiving very minimal support for services in our communities,” Wilson explains. “[Federal appropriations are] based on prices that date back to the last millennium. For instance, one community gets $4,000 a year for snow removal, and in fact is spending $36,000 a year. That money has to come from somewhere. [This annual shortfall] has snowballed into a debt, and bands have no way of taking care of it. Bands now are being faced with new financial negotiations, and many bands are in the red because of the low-ball appropriations.”
The Omnibus Budget Bill enacted in January 2013 has been criticized by opposition MPs as an attempt to subvert the democratic process. The bill was rushed through Parliament, along with many supplementary bills, eight of which directly affect aboriginal peoples and their lands. Of concern to First Nations are changes to legislation on water rights, matrimonial law, the Indian Act, education, health, privatization of Indian lands, taxation on reserves and on the matter of financial transparency and accountability.
Cree Lawyer Sharon Venne is an international human rights attorney and watchdog on federal aboriginal policy. Her experience in dealing with the feds is extensive, most notably as chief negotiator for First Nations for ten years in Canada’s Northwest Territories. In October 2012, she held a special presentation in Kahnawake, Mohawk territory in which she suggests that the Federal plan is to absolve federal fiduciary obligations, which are essential elements of both treaties and federal Indian policy, based on a notorious set of policy recommendations dating back to the 1960s called the white paper. “What they are doing [now] is ‘frustrating’ the application of S.91(24) in the British North American Act, ‘Indians and Lands Reserved for Indians,’ by transferring this stuff to the Provinces and they are doing it through all kinds of mechanisms. It’s not only through legislation, but it’s through the [annual] contribution agreements.”
The desired shift would diminish the nation-to-nation relationships between Canada and all the First Nations—in particular their legal jurisdiction and responsibilities—by putting them under the control of local Provincial departments.
Bold moves by Aboriginal Affairs and Northern Development Canada
Esgenoopetitj (Burnt Church) is a Mi’gmaq First Nation community that has an unenviable claim to fame: it is reported to be the poorest postal code in all of Canada. In mid-March 2013, it was sent their annual contribution agreement. This time the agreement was different—it didn’t contain the standard non-derogation clause, which would erodes treaty rights protection in return for funding. Treaty and aboriginal rights are no longer explicitly acknowledged, which means they are, implicitly, imperiled. Councilor Mr. Curtis Bartibogue is outraged by this change in tactics by the government. “It’s blackmail, and it’s the most illegal thing ever done.… We told the [Aboriginal Affairs] Minister it’s like you’re putting a gun to our head and telling us to sign.”
What happened next surprised many, perhaps the Canadian government most of all. Despite the dire conditions of the community—80 per cent unemployment, and essentially full dependency on the promised multi-million-dollar funding allocation—Burnt Church refused to sign. “The outcome of our meeting was that we can’t sign,” Bartibogue says. “We asked the public and informed them of the situation and they stand behind us not to sign. To accept the social reform, the omitting clauses of the treaties and the case before the courts, is something we can’t do to our community.”
“The government, through its contribution agreements, is trying to get First Nations to sign onto [their policies] or else be cut from their funding,” Chief Allan Adam of the Athabasca Chipewyan First Nation in Alberta told a HillTimes.com reporter. He said his nation refused to sign its contribution agreement, worth more than one-million-dollars, because it doesn’t agree with the federal government’s omnibus budget implementation legislation. In Saskatchewan, Cree First Nations similarly decided to say ‘No.’ “One of the council members took the whole appendix home and read it all. There were a lot of conditions never seen before. Some signed and some didn’t,” Christine Dieter, a First Nations woman in southern Saskatchewan, told a reporter for Ipolitics.ca, an electronic newsmagazine. The appendix allegedly requires the bands to support federal omnibus legislation and proposed resource developments as a condition of receiving their funding. Some bands have already signed their contribution agreements out of necessity, noting that they have done so under duress.
The harsh reality behind this power play is that 146 years of Canadian development has left First Nation economies underfunded. Canadian mining and forestry have essentially stripped their resources for a paltry sum. Today, many of Canada’s 633 First Nations live in third-world conditions. Negotiations are too often uneven. As prominent Native scholar Russell Diabo wrote, “It seems the negotiating First Nations are so compromised by their federal loans, and dependent on the negotiations funding stream that they are unable or unwilling to withdraw from the tables en masse and make real on the demand that the Harper government reform its comprehensive claims and self-government policies to be consistent with the articles of the [United Nations Declaration on the Rights of Indigenous Peoples].”
The Manufacturing of Aboriginal Consent
What is at stake for Canada is an estimated $650-billion-dollar extraction industry worth of minerals, oil, gas and trade-route access for pipeline companies. Canada’s domination of a world minerals market is at risk because First Nations are saying ‘No’ and are making demands. For the first time in six years, Canada failed to top the mining industry’s list of the best mining jurisdictions in the world. Indigenous rights are a challenge to that economy. “I would say one of the big things that is weighing on mining investment in Canada right now is First Nations issues,” Ewan Downie, told Reuters. Downie is chief executive officer of Premier Gold Mines, which owns numerous projects in northern Ontario. Half a million Canadians and their livelihoods are tied in the 120-billion-a-year industry within the fields of natural gas, natural gas liquids, crude oil, oil sands bitumen and other mineral extractions, according to a 2013 Statistical Handbook issued by Canadian Association of Petroleum Producers. (Many argue that all of those resources originate on First Nation territories.)
Free, prior and informed consent is a part of the United Nations Declaration on the Rights of Indigenous Peoples and most international protocols. This becomes an international legal standard of how business is done, after hundreds of years of theft and genocide, in order to secure lands from Indigenous peoples. Hence, international accords today enable fair agreements with Indigenous peoples over their lands and resources. Now, with an increasingly educated, and empowered Indigenous community, evidenced by the Idle No More movement, that standard of consent is not looking so easy to secure. This is particularly true as communities themselves challenge, what has become, essentially entrenched power.
As Professor Pamela Palmater of Toronto’s Ryerson University explains, “[The Idle No More] movement was about educating First Nations to say no.… ” And saying “no” has already slowed or derailed at least a half-dozen energy and mining projects in British Columbia. “It’s the project-killer, the investment killer,” says Clayton Thomas-Muller, a Cree organizer with the Indigenous Tar Sands campaign.
This March, Mathias Colomb Cree Nation blocked access for HudBay Minerals Inc. to its Lalor Lake mine project in Manitoba. Protesters blockaded access to the gold-copper-zinc mine for several hours, demanding talks with the company on an ownership stake in the $773.84 million project. Blockades have increased dramatically over this winter, spurred on by the federal government’s failure to consult, along with their green light nods toward new aggressive mining interests, many of which are in more remote and pristine areas than ever before. The companies are also facing a more politicized and mobilized grassroots movement that is determined to defend the constitutionally protected rights of First Nations.
Last September former cabinet minister Jim Prentice slammed both the government and the oil industry for not addressing First Nation concerns. Yet Canada’s Bill C-45 paved the way across aboriginal territory without much adherence to consultation or accommodation let alone the environment, opening new resource extraction opportunities with Suncor Energy, Enbridge, TransCanada and a sleuth of junior mining and natural gas companies effectively giving their activities the green light.
Last year, Trans Canada Corp. reportedly floated the idea of a pipeline to the East. New Brunswick’s Premier, David Alward, “has been traveling the country peddling the virtues of a West-East oil pipeline that would see Alberta and Saskatchewan crude flow to a refinery in Saint John, New Brunswick,” reported the Financial Post. The pipeline might go through territory of the Maliseet and Mi’kmaq peoples, and one source says that the Assembly of First Nations Chiefs of New Brunswick were not consulted about the plans. This is disturbing in many respects, including the fact that Alward is, thanks to a consolidation of power in the Maritime provinces, also responsible for aboriginal affairs in the province.
Can the Harper government be thwarted in this attempt to subjugate and exploit the First Nations? U.N. Special Rapporteur on the Rights of Indigenous Peoples James Anaya, who is completing a report for the United Nations on extractive industries and Indigenous Peoples, has been requesting to formally enter Canada since early 2012. He was finally given formal approval in April and expected to vist during Fall 2013.
In the meantime, the Idle No More movement that began late last year has bloomed this Spring with new force, an Indigenous Spring, so to speak, that is spreading from eastern Canada’s Burnt Church to northern Saskatchewan. Native people are declaring that consent cannot be manufactured by federal threats.