For the past four years the Trudeau government has operated in secret, using public relations techniques to hide from our First Nation Peoples, the media and the public its real intentions about their renewed federal-First Nations Termination Plan.

Much of their rhetoric sounds nice, but you have to put the Trudeau government’s Special Words and Tactics (SWAT) into context by being aware of the Two-Track Termination Plan the Trudeau government has put in place and in motion over the past four years.

The Trudeau government has manipulated the terms “reconciliation,” “decolonization,” and “Nation-to-Nation” by going around our Original Nations and negotiating two top-down agreements with the Assembly of First Nations (AFN). One on developing a new funding policy for First Nations and one on shared priorities with the Trudeau government.

The Trudeau government also created a new Federal-AFN Cabinet Committee to include AFN in the federal decision-making process to develop new law and policy. The AFN budget has been substantially increased to tens of millions of dollars to implement these two agreements with the federal government.

The re-election of a Liberal minority government in November 2019 means Prime Minister Justin Trudeau will continue with his government’s Two-Track Termination Plan (White Paper 2.0) for First Nations (Indian Act Bands) into 2020 and beyond, with the collaboration of the AFN.

The 2019 Liberal Platform Chapter “Building a Better Future with Indigenous Peoples”, along with the re-appointment of Carolyn Bennett as Minister of Crown-Indigenous Relations and the appointment of Marc Miller, reportedly “a close friend of Trudeau”, as Minister of Indigenous Services, along with their 2019 Mandate Letters, all affirm the continuation of the 2015 Liberal Platform Agenda.

Justin Trudeau will continue working with Ministers he can trust to manage the Chiefs and keep the lid on First Nations discontent while leading the Two-Track Termination process into his government’s second mandate.

The Trudeau government will also continue to rely on their “partners” such as the AFN to help control potential First Nation Peoples dissent. The 2019 Liberal Platform section entitled “Supporting First Nations Priorities” confirms the Trudeau government’s continued reliance on the AFN in advancing its Two-Track Termination Plan.

The fact is the 2017 AFN-Canada MOU on Joint Priorities formalizes a national top-down Liberal government political process, to the so-called “Nation-to-Nation” relationship, which the federal government controls and manages, because it has an effective veto over the Canada-AFN MOU process, agenda items, and funding. This is being peddled by the Trudeau government as “co-development” of policy and law, when, in fact, as we’ve seen since 2015, AFN has been co-opted by the Trudeau government.

As the 2019 Liberal Platform puts it:

Continu[e] to make progress on Indigenous priorities, meeting regularly through the Assembly of First Nations – Canada Memorandum of Understanding on Joint Priorities.

 

Two-Track Termination Plan

It was in December 2015, that Prime Minister Justin Trudeau announced his government’s Two-Track approach to a Pan-Indigenous Policy (First Nations, Inuit, Metis): 1) closing the socioeconomic gap between Indigenous Peoples and non-Indigenous Canadians (programs); and 2) making foundational changes to laws, policies and operational practices based on the federal recognition (definition) of rights to advance (a federal interpretation of) selfdetermination and self-government (rights).

The federal Two-Track approach is the latest iteration in the continuation of the Termination Doctrine from the 50 year old 1969 White Paper on Indian Policy.

The “new” legislative & policy “Framework” is designed to continue to take advantage of our people’s poverty and financially pressure Indian Act bands and band councils (Treaty & Non-Treaty) into signing new modern, municipal type self-government agreements, ending our existing sovereignty, jurisdiction & original relationship with our lands, territories and resources as Indigenous Nations!

The core of the “new” relationship is to convert Indian Act bands into 4th level ethnic “Indigenous governments,” using the existing Land Claims and “Self-Government” Final Agreements as  templates. This became clear when at a public event organized by The Economist magazine in Toronto, in the summer of 2016, the interviewer asked the Prime Minister how his government was going to liberalize and deregulate interprovincial trade within Canada. Trudeau responded:

“The way to get that done is not to sit there and impose, the way to have that done is to actually have a good working relationship with the Premiers, with municipal governments, with Indigenous leadership, because Indigenous governments’ are the fourth level of government in this country.” [emphasis added]

We know that Prime Minister Justin Trudeau wasn’t referring to Indian Act bands when he used the term “Indigenous governments” at that event, because the federal government makes a distinction between Indian Act bands and “Self-Governing First Nations,” which are referred to as “Indigenous governments” in federal policy.

During the first mandate of the Trudeau government we saw massive, unprecedented changes to First Nations policy, law and the re-structuring of the federal machinery of government by dissolving the Department of Indian Affairs and Northern Development and creating two new federal departments for processing Indian Act bands and band councils into a “new relationship” as 4th level ethnic “Indigenous governments” using the existing municipal type Self-Government Agreements and Comprehensive Land Claims Settlement Agreements, now called “Modern Treaties” as the templates for negotiations and Legally Binding Final Agreements.

This is what I call signing onto “Canada’s Termination Pact”!

In order to get those remaining Indian Act bands to the table who did not previously agree to negotiate under Canada’s Termination Tables (Comprehensive Claims or Self-Government) the  Trudeau government created a new class of tables called the “Recognition of lndigenous Rights and Self-Determination discussion tables.”

As of December 2018, there were over 75 tables which represent more than 390 Indigenous communities (FN’s, Metis & Inuit), with a total population of more than 850,000 people. To date, 28 preliminary-type agreements have been signed as a result of Recognition of Indigenous Rights and Self-Determination discussions. Over $118 million has been allocated to support Recognition of Indigenous Rights and Self-Determination discussions. (SOURCE: Federal Government)

Trudeau’s Two-Track Termination Plan is based on using the federal constitutional jurisdiction and authority over “Indians and lands reserved for the Indians” in section 91.24 of the Constitution Act 1867 to continue to control and manage Indian Act band councils and bands, until they agree to opt out of the Indian Act and define their section 35 rights by:

1) Signing and ratifying legally binding ”Modern Treaty” Final Agreements (where eligible);

2) Self-Government Final Agreements that are based on federal pre-conditions to negotiations to define federally recognized “Indigenous Governments” or “Nations” that will have authority delegated to them by the Government of Canada. They will be subject to the Canadian Constitution as a 4th order of government — below not only the federal and provincial governments, but also with less power than municipal governments.

3) This option is for Indian Act bands is to opt out of the Indian Act into alternative federal legislation designed to assimilate Indian Act bands and reserves into Canada’s property and tax systems through the National Institutions created by the federal government via the First Nations Land Management Act and the First Nations Fiscal Management Act.

 

Federal Pre-Conditions to Negotiations

Canada’s position regarding the domestication (watering down and rewriting) of UNDRIP is set out in the 10 Principles respecting the Government of Canada’s Relationship with Indigenous peoples, issued in June 2017, by the then federal Justice Minister, Jody Wilson-Raybould, which refer to “Canada’s constitutional framework” and “Canada’s constitutional arrangements” as the basis for interpreting UNDRIP and the 10 Federal Principles within Canadian domestic law, where the 10 Federal Principles acknowledge “self-determination” on one hand, but then put it squarely under the umbrella of “European assertion of sovereignty” on the other.

Thus, Canada maintains its assertion of Crown sovereignty and territorial integrity by continuing to rely on the Christian Doctrine of Discovery.

This is in violation of international legal standards!

The 10 Federal Principles on Pan-Indigenous Relations is a re-write of, but maintains, these previous 2012 federal pre-conditions to negotiations with First Nations (Indian Act Bands):

• Extinguishment (modification) of Aboriginal Title;
• Legal release of Crown liability for past violations of Aboriginal Title & Rights;
• Elimination of Indian Reserves by accepting lands as private property (fee simple);
• Removing on-reserve tax exemptions (Converted as Own Source Revenue);
• Respect existing Private Lands/Third Party Interests (and therefore alienation of Aboriginal Title territory without compensation);
• Acceptance of existing federal & provincial laws;
• Program funding on a formula basis being linked to taxation/own source revenue (suspended for 3 years);

Two New Fiscal Policies (Indian Act bands & Self-Governing First Nations)

The federal Two-Track Termination Plan is driven by the new fiscal relationships set out in:

1. the INAC-AFN Memorandum of Understanding on Fiscal Relations for Indian Act bands; and
2. the Collaborative Self-Government Fiscal Policy jointly developedby the members of the Land Claims Agreement Coalition outside of the INAC-AFN MOU process.

The Indian Act band councils are being offered 10-year (or less) grants if a band administration is certified by the federally created First Nations Financial Management Board, and if the band adopts a Financial Management Law (FAL). There is no new funding to meet the local needs, but

band councils can control the funding themselves without interference by the new Department of Indigenous Services Canada (ISC), except in extreme circumstances.

For “Self-Governing First Nations” a new funding formula is being jointly developed. The Own Source Revenue/Taxation policy is suspended for three years, while baseline research is being conducted to determine what comparable Canadian towns and cities pay for delivering services and local government operations. In the meantime, the “Self-Governing First Nations” get to keep their Own Source Revenues/Taxation without the federal government reducing the current transfer payments included in the funding formula until the funding formula is revised.

 

Two New Federal Departments for Recolonization Until Termination

Essential to accelerating the Trudeau government’s Two-Track Termination Plan is to re-organize the federal bureaucracy to process (prepare) Indian Act bands for signing onto modern agreements to become 4th levelethnic “Indigenous governments”. Thus, moving from the Department of Indigenous Services Canada to the Department of Crown-Indigenous Relations. As the federal government openly states “the [Indigenous Services Canada] Department will disappear over time.”

In August 2017, during a Cabinet shuffle, Prime Minister Justin Trudeau announced the eventual dissolution of the Department of Indigenous Affairs and replacement with two new federal departments (Indigenous Services & Crown-Indigenous Relations) with the changes to be overseen by the two Ministers. There was no prior consultation with AFN, as National Chief Bellegarde has admitted, or more importantly no consultation with First Nations (Indian Act bands).

Bill C-97 – On August 28, 2017, Prime Minister Justin Trudeau announced the federal government was dissolving the Department of Indian Affairs & Northern Development and creating two new federal departments: one for Indigenous Services and one for Crown-Indigenous Relations.

This federal restructuring of government is central to the Trudeau government’s White Paper 2.0 Framework approach to Indigenous policy, law, funding and is unilaterally defining a “new” relationship with Indigenous Peoples (First Nations, Metis & Inuit).

On April 8, 2019, the Trudeau government introduced a 400 page omnibus Budget Bill C-97 into the House of Commons. Buried within Bill C-97 was legislation to dissolve the Department of Indian Affairs and Northern Development in order to create the two new departments (Indigenous Services & Crown-Indigenous Relations) in law.

Bill C-97 became law on June 21, 2019, without any meaningful discussion or debate from First Nations.

 

Two-Track Termination Framework Legislation

Bill C-86 – a 900 page Omnibus Bill that became law in December 2018, making substantive amendments to the First Nations Land Management Act, First Nation Fiscal Management Act, Additions to Reserve and First Nation Matrimonial Property Act. All of this legislation facilitates

eliminating reserves by transitioning communally held reserve lands into a new land regime that eventually leads to individually held private property (fee simple) that would come under provincial laws and lands registry.

Bills C-91/92 – the language and child welfare legislation is intended to take our existing Inherent Rights and convert them into federally defined section 35 rights, which are subsumed under Crown Sovereignty (to be dictated by the limitations stemming from section 35 federal doctrine/ court decisions), as well as provincial controls into Indigenous jurisdiction. These Bills became law on June 21, 2019.

This suite of federal legislation (Bills C-86, C-91, C-92, C-97) will now be used by the federal government to continue the attack on our sacred Treaties, Inherent Title & Rights and sovereign jurisdiction, particularly with the creation of two new federal departments (Indigenous Services & Crown-Indigenous Relations) to continue to implement the 1969 White Paper objectives through the current Trudeau government’s White Paper 2.0 Framework (2019).

 

Recognition and Implementation of Rights Framework Bill Delayed

On February 14, 2018, Prime Minister Justin Trudeau announced his Liberal government intended to introduce a Bill into Parliament regarding a Recognition and Implementation of Rights Framework in 2018 that he wanted to become law before the 2019 federal election.

According to a September 2018, federal “Overview Document” the federal “Rights Recognition Framework” law will—if passed—form the basis for ALL RELATIONS between the federal Crown (government) and Indigenous Peoples (First Nations, Metis, Inuit) including “pre-1975” Treaties

and:

• Will contain federal “definitions” of “key terms” [like Inherent Right to Self-Government, “Self-Determination” “Aboriginal Title and Rights”, “Treaty Rights”].
• Federal and Provincial/Territorial powers and jurisdictions will continue to dominate over First Nations and provincial governments have a veto over any agreements affecting their jurisdiction.
• A federally established advisory committee or institution would be created to decide what Indigenous Nations or “Collectives” would be federally recognized and have the authority of a government possessing “the legal capacity of a natural person”, meaning a federal corporation. This will all be subject to agreements with the federal and provincial governments (where their jurisdiction is affected).
• The federal legislation will include a “list of powers” for “Indigenous Governments”, which can be amended by the federal government.
• The Prime Minister has said these “Indigenous Governments” are a lower order of government than municipalities (City Council) as the “4th level” of government in Canada. A “new” order of government.
• New funding arrangements are to go with new agreements and Indian Band’s tax exemption will be removed to promote the new “Indigenous Governments” exercising powers to collect “own source revenue” the same as existing “Indigenous Governments” under self-government agreements, comprehensive land claims settlements or federal legislation.
• The new law will likely use existing, or new federally created national institutions for First Nations, Metis and Inuit to: 1) provide an advisory role to the federal government, 2) oversight of Indigenous Rights implementation, 3) dispute resolution and 4) public education. 

In September 2018, after reviewing an overview of the proposed “Framework” law, there was widespread rejection by Chiefs and First Nations across Canada. This resulted in a delay of the proposed “Framework” legislation being announced in a CBC news report on November 14, 2018.

What the CBC news report didn’t mention was a Statement from the Office of the Minister of Crown-Indigenous Relations, also released on November 14, 2018, saying

“the Government is committed to advancing the framework, and to continue actively engaging with partners on its contents… through policy changes and the development of the Recognition of Rights and Self-Determination Tables.”

Since the fall of 2018, while the proposed “Framework” law was delayed, Crown-Indigenous Relations Minister Carolyn Bennett and Senior Assistant Deputy Minister Joe Wild continued working with their “partners” on a piecemeal approach to implementing the “Framework” through legislative

and policy changes.

As already mentioned above, Canada’s “partners” are the AFN and the Chiefs who are negotiating at “Modern Treaty” tables, “Self-Government” tables, and having discussions at the “Recognition and Self-Determination” tables.

The land clams and self-government policy changes being pursued are in addition to the federal suite of legislation cited above.

 

Trudeau Government 2.0 and White Paper 2.0

During the post-election AFN Special Chiefs’ Assembly on December 4, 2019, Minister of Termination (Crown-Indigenous Relations), Carolyn Bennett, told the Chiefs-in-Assembly “It feels good to be able to get back to work on the things that matter so much to the future of Canada - the unfinished work of confederation ....”, and she then set out the Trudeau government’s priorities for their second mandate, which are summarized as follows:

• Bennett acknowledged the AFN Honouring Promises (2019 Federal Election Priorities for First Nations and Canada) Document.
• Bennett said her government will be “co-developing” an UNDRIP Bill by end of 2020.
• Bennett said her government will be “co-developing” a National Action Plan as called for by the MMIWG National Inquiry.
• Bennett said her government will continue the “co-development” of “meaningful reforms to comprehensive claims, specific claim and Inherent rights policies.”
• Bennett said her government will establish a National Treaty Commission.“To make sure that Canada implements the spirit and intent of Treaties going forward - we will together co-develop a process for the ongoing review, maintenance, and enforcement of Canada's treaty obligations between the Crown and Indigenous communities.”

So, in 2020, we can expect to see the continued piecemeal approach to implementation of the Trudeau government’s “Rights Recognition Framework,” likely re-packaged in the pending federal Bill to implement a Canadian watered down and re-written version of the United Nations Declaration on the Rights of Indigenous Peoples with the collaboration of AFN and Termination Table Chiefs!

The Trudeau government spin on all of these changes will remain that its objective is “to accelerate self-determination, contribute to the closing of socio-economic gaps, and to advance reconciliation.”

As I’ve already said on social media, I hope that 2020 is the year that many grassroots Peoples will wise up and rise up! The international right of Self-Determination & Free, Prior, Informed Consent belongs to the People NOT INDIAN ACT Chiefs & Councils!

If Termination is on the Table then Turn the Tables, take action this coming year to take #LandBack!

This article appears in the First Nations Strategic Bulletin July - Dec 2019 issue.