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The Tsilhqot'in Decision and Canada's First Nations Termination Policies

By Russell Diabo

This is the first in a three-part series on the landmark Supreme Court of Canada Tsilhqot'in v. British Columbia decision last June, first published in First Nations Strategic Bulletin. The second article in this series, "The Tsilhqot’in Decision and Indigenous Self-Determination," can be found here. Part 3, "Canada Responds to Tsilhqot’in Decision: Extinguishment or Nothing!" is here.

On June 26, 2014, the Supreme Court of Canada (SCC) recognized that the Xeni Gwet'in Tsilhqot'in People have Aboriginal Title to a large part of their traditional territory. In the same decision, building on previous legal cases written to contain Section 35 of Canada's constitution (which provides constitutional protection to the aboriginal and treaty rights of Aboriginal peoples in Canada), the SCC set out a legal test for asserting and establishing Aboriginal Title in Canada. 

The reaction to the SCC Tsilhqot'in decision has ranged from the jubilation of Tsilhqot'in Chiefs and other First Nation leaders, to dismay and alarm from industry spokespeople and other Canadian Settler opinion makers. Reaction from Colonial Crown governments was muted or silent for the most part, except for the British Columbia government, Premier Christy Clark called for a meeting between her Cabinet and Chiefs in BC on September 11, 2014. 

It is not surprising that the BC provincial government is being proactive by calling for an early meeting with First Nations because 50% of the Comprehensive Land Claims in Canada are in BC where self-government is also being negotiated at the same time in the Comprehensive Claims negotiations. Some mainstream media have previously commented that with overlaps, First Nations are claiming 110% of the province. 

My reading of the SCC Tsilhqot'in decision is that it is probably about as far as the SCC was prepared to go in recognizing Aboriginal Title. 

It is good that the SCC recognized the Tsilhqot'in have Aboriginal Title to a large part of their traditional territory and that the SCC didn't subscribe to the "postage stamp" theory of Aboriginal Title, which the BC Court of Appeal was postulating in this case. 

The postage stamp theory was devised in the lower court, where the Judge sought to circumscribe the collective territorial land rights of Indigenous nations and bands into small intensively used and occupied areas. If successful, the adoption of this theory would have fragmented Indigenous territory and further entrenched Western notions of settlement over Indigenous forms of land use, such as those of semi-nomadic societies. 

It is also good that the SCC recognized that "consent" of the Aboriginal Title holders is required and that the "beneficial interest" in the Aboriginal Title territory belongs to the Aboriginal Title holding group and not the Crown, the SCC made it clear that "this is not merely a right of first refusal with respect to Crown land management or usage plans. Rather, it is the right to proactively use and manage the land." Or as the SCC more clearly put it "Aboriginal title gives the Aboriginal group the right to use and control the land and enjoy its benefits." 

However, there are other aspects of the Tsilhqot'in decision that are dangerous and a threat to First Nations and require a local, regional, national and international political response for those First Nations who are up to it! 

Some of the dangerous aspects are as follows: 

  • The SCC ruled that based upon the assertion of European sovereignty the Crown has "Radical or underlying title", thus keeping the racist Doctrine of Discovery alive in Canada;  
  • "The claimant group bears the onus of establishing Aboriginal title";
  • "Governments can infringe Aboriginal rights conferred by Aboriginal title";
  • "As a general proposition, provincial governments have the power to regulate land use within the province. This applies to all lands, whether held by the  Crown, by private owners, or by the holders of Aboriginal title." (emphasis added)
  • "Provincial regulation of general application will apply to exercises of Aboriginal rights, including Aboriginal title land, subject to the s. 35 infringement and justification framework." 

In addition to the threatening aspects of the Tsilhqot'in decision noted above, there is nothing in the SCC decision that addresses the jurisdiction or laws of the Tsilhqot'in, which means the pre-existing sovereignty or self-government of the Tsilhqot'in wasn't addressed in the case. In other words, the court did not rule on whether or not the federal government's Aboriginal self-government policy is constitutional or not. 

Finally, the SCC Tsilhqot'in decision made it clear that Aboriginal Title lands cannot be "alienated except to the Crown", as was set out in the Royal Proclamation of 1763. This means if Aboriginal Title holding First Nations give their consent to extinguishment their Aboriginal Title can still be extinguished to the Crown. 

Negotiating termination 

There are 93 Termination Tables involving 403 Indian Bands/Non-Status/Metis with a combined population of 331,945. 

In this context, termination means the ending of First Nations pre-existing sovereign status through federal coercion of First Nations into Land Claims and Self-Government Final Agreements that convert First Nations into municipalities, their reserves into fee simple lands and extinguishment (through modification) of their Inherent, Aboriginal and Treaty Rights. 

Under Canada's core negotiating mandates/pre-conditions at these 93 Termination Tables, First Nations are expected to: 

  • Agree to extinguishment (modification) of Aboriginal Title;
  • Agree to the legal release of Crown liability for past violations of Aboriginal Title and Rights without compensation;
  • Agree to the elimination of Indian Reserves by accepting lands in fee simple within the provincial system;
  • Agree to removing on-reserve tax exemptions;
  • Agree to existing Private Lands/Third Party Interests (and therefore alienation of Aboriginal Title territory without compensation);
  • Agree (to be assimilated into) existing federal and provincial orders of government;
  • Agree to application of Canadian Charter of Rights and Freedoms over governance and institutions in all matters;
  • Agree to programs and services funding on a formula basis being linked to own source revenue;
  • Agree to a municipal form of self-government that accepts federal and provincial power. 

From my reading of the SCC Tsilhqot'in decision, Canada will likely try to continue with its Termination Policies (Comprehensive Claims and Self-Government) as a basis of negotiations at the 93 Termination Tables. 

Let's not forget that while the Supreme Court of Canada issued the Tsilhqot'in decision, it is up to the executive branch of the federal government to decide if and to what extent they will comply with the SCC Tsilhqot'in decision. 

If First Nations who have borrowed money from the federal government try to pull out of negotiations, Canada can call in the loans and demand a repayment schedule or place an indebted First Nation into third party management as they have already threatened to do with a couple of BC First Nations that have pulled out of negotiations already. 

Tsilhqot'in vs. comprehensive claims policy 

Canada's initial reaction to the Tsilhqot'in decision has been predictably to cling to the Comprehensive Claims Policy (CPP). In a statement issued on June 26, 2014, Canada's Aboriginal Affairs Minister Bernard Valcourt stated: "Our Government believes that the best way to resolve outstanding Aboriginal rights and title claims is through negotiated settlements that balance the interests of all Canadians. Since 2006, we have concluded four treaties in British Columbia with a number of other agreements at advanced stages of negotiations. We are committed to continuing this progress and ensuring an effective process for negotiating treaties." 

Similar to the federal Minister Bernard Valcourt, the Ontario Minister for Aboriginal Affairs, David Zimmer wrote in the National Post on July 9, 2014: 

"We look forward to continuing to work with the Algonquin's of Ontario and Canada to complete the initialing and approval of an agreement in principle. Resolving the Algonquin land claim will help to improve eastern Ontario's business climate by providing certainty for investors and opening up new opportunities for the Algonquin's and their neighbours to work together." 

Along the lines of continuing with the status quo Comprehensive Claims/Self-Government negotiations, I have heard the Quebec Ministry of Natural Resources officials are saying despite the Tsilhqot'in decision it's "business as usual." 

Meanwhile, a top proponent of the BC Treaty Commission-Aboriginal Title extinguishment process, Grand Chief Ed John is trying to put a positive spin on the mess the actively extinguishing First Nations in BC have gotten themselves into over the last 20 years of negotiating under Canada's First Nations Termination policies, while collectively borrowing about $500 million from the federal government to negotiate, Grand Chief Ed John told the CBC on July 8, 2014: 

"As First Nations, we went to the table based on our title. The governments came to the table with their own mandate which was not to recognize title. So, it led to stalemates. Simply because you get involved in negotiations, it doesn't mean you capitulate to the other party's mandate. That's far from the truth." 

Grand Chief Ed John is being disingenuous. As a lawyer he knows the definition of a First Nation under the federal (and BC) British Columbia Treaty Commission Act of 1995, which provides: "first nation" means an aboriginal governing body, however organized and established by aboriginal people within their traditional territory in British Columbia, that has been mandated by its constituents to enter into treaty negotiations on  their behalf with Her Majesty in right of Canada and Her Majesty in right of British Columbia; [emphasis added] 

The BCTC Act requires proof of a First Nations' mandate to negotiate with the Canada and BC governments. Canada's Comprehensive Claims Policy has required extinguishment of Aboriginal Title since the Comprehensive Claims Policy was first announced in 1973 by the federal government. On top of this, the First Nations participating in the BCTC negotiations have signed funding agreements, including promissory notes, all of which contain terms and conditions consistent with Canada's Termination Policies. 

The fact that the SCC has kept the burden of proof on the Aboriginal Title holding groups to prove their Aboriginal Title to meet the "strength of claim" test means that many First Nations will not meet the legal test because it costs millions of dollars just to collect and analyze the historical, cultural and land use and occupancy data to prove Aboriginal Title and Rights let alone sustain the legal fees and court costs. 

The federal and provincial governments will likely resist funding Aboriginal Title research now because they know what First Nations will do with the collected evidence of Aboriginal Title and Rights. All that was required for First Nations to enter the BC Treaty Commission process was a map and a band council resolution. Many First Nations at the Termination Tables did not do research before entering into negotiations with Canada and BC now they are at a disadvantage at the negotiation tables. 

Under the Tsilhqot'in Aboriginal Title Framework, moving from asserting to establishing Aboriginal Title can only be done by a court declaration or agreement, which means only a court declaration, since the federal government will likely try and keep its Comprehensive Claims Policy intact as much as possible. 

As for the "infringement justification" analysis the burden will be on Crown governments to prove the need for a development project is "substantial and compelling", and there will also be a corresponding burden of proof on a First Nation as well to show how the "infringement" of their "asserted" or "established" Aboriginal Title or Right will be negatively impacted. 

This means First Nations-if they haven't done so already-need to develop databases not only of Indigenous land use and occupancy but natural resource inventories and analysis of the cumulative impacts of ongoing developments not to mention the alienation of their traditional lands. Whether a First Nation is at a Termination Table or not they will all face the burden of proof and the need to counter federal and provincial laws "infringing" on Aboriginal Title and Rights. 

All of this costs money. Where will First Nations get the money to meet the legal test for Aboriginal Title? Or to counter the Crown's "infringement" analysis? 

Tsilhqot'in vs. Federal Aboriginal self-government policy 

Since the Tsilhqot'in case didn't address the matter of jurisdiction or self-government over Aboriginal Title lands in my view the federal self-government policy remains untouched by the SCC. So for those First Nations negotiating under the federal self-government policy at the 93 Termination Tables, the federal objectives of converting bands into municipalities with fee simple lands remains unchanged. 

The Tsilhqot'in decision reinforces the de facto sovereignty of the Crown and the Section 35 infringement justification test for federal and provincial laws to override First Nations Aboriginal Title and Rights. We now know in 2014 that federal and provincial powers will override any First Nations powers. 

Continued war on Aboriginal title and rights 

I have seen the executive branch of the federal government ignore the 1997 SCC Delgamuukw decision on Aboriginal Title and manipulate the 2004 SCC Haida decision on the Crown's duty to consult and accommodate. I have yet to see any evidence of the legal fiction the colonial courts call the "honour of the Crown" outside the colonial courtrooms. So I can only surmise that Canada's War on Aboriginal Title and Rights will only continue and intensify, as the stakes have now gotten higher for all parties as a result of the Tsilhqot'in decision. 

Now that the federal, provincial and territorial governments know what evidence First Nations need to "assert" or "establish" Aboriginal Title or Rights, or what evidence First Nations need to respond to Crown "infringement justification" actions, the Crown governments will likely be trying to limit research funding while identifying Crown "experts" to shoot down First Nations evidence at the negotiation tables or in court. It is a war for ownership, control, management of Aboriginal Title lands and Indigenous self-determination versus continued Crown racism, colonialism and termination of the collective rights of Indigenous Peoples in Canada. 

Those readers who are skeptical of my comments on Crown government's bad faith should learn more than what is available in the mainstream media. A good example of what the federal and provincial governments-in this case Quebec- are capable of in the denial and extinguishment of First Nations' rights need to read Dr. Shiri Pasternak's dissertation On Jurisdiction and Settler Colonialism: The Algonquins of Barriere Lake Against the Federal Land Claims Policy.  

Russell Diabo is a member of the Mohawk Nation at Kahnawake. He is Editor and Publisher of the First Nations Strategic Bulletin, a web-based newsletter available from the Canada Library and Archives website in Electronic Collections. For more information, contact rdiabo [at ] rogers.com. 

An earlier version of this article was published in First Nations Strategic Bulletin 12, 1-7 (January-July 2014).
The second article in this series, "The Tsilhqot’in Decision and Indigenous Self-Determination," can be found here.
Part 3, "Canada Responds to Tsilhqot’in Decision: Extinguishment or Nothing!" is here.



 

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