The Trap of Federal Policies John A. Olthuis and H.W. Roger Townshend provide a legal analysis of the federal government’s Specific Claims Policy that many people will find interesting, and that can be applied to the federal government’s Comprehensive Land Claims Policy and self-government policy known as the Inherent Right Policy. They offer that the policy can be challenged as a violation toward Indigenous people and their lands. While I admit I am not a lawyer, I provide a brief summary of their analysis here. Olthuis and Townshend explain that natural justice is defined by the principles of two related objectives. First, people should not be adversely affected without a hearing, and second, decisions affecting people must be made by an impartial and none biased tribunal. In establishing the Comprehensive Land Claims Policy the federal government has violated/s the principles of natural justice in that they have unilaterally constructed the policy which is therefore biased, and it is the federal government, rather than an impartial body, that judges whether a statement of land claim will move forward, against itself no less. In this way, the federal government has violated and continues to violate the principles of natural justice. Olthuis and Townshend also explain that equity law is a form of justice that is administered according to rules of fairness. Equity law seeks to restore wronged parties to the conditions that would have existed if the breach had not occurred. They also explain that a fiduciary is a person who stands in a position of trust to another. Interestingly, fiduciary responsibility emerges from equity law and as such it is reasonable for a person relying on the fiduciary to expect the fiduciary to act with a degree of fairness, loyalty, and honourable conduct. Equity law and fiduciary responsibilities extend to policy-making and given this, unilaterally drafted federal policies, which construct limitations on Indigenous people in their attempt to live better, are a violation of equity law and the Crown’s fiduciary responsibilities. Olthuis and Townshend also address the issue of whether the compensation amounts awarded First Nations fall within legal guidelines. According to equity law, the general principle behind compensation is that the imposed loss is to be made good where compensation is to be assessed with reference to the value of the assets at the date they are restored rather than the date at which they were improperly taken. This means that any increase in the market value of the assets is the responsibility of the trustee. Olthuis and Townshend argue, “It is our view that the federal specific claims policy and process with respect to validity and compensation violates the principles of equity, the federal constitutional responsibility and the fiduciary duty owed” (82). The Slap of Agreements in Principle Recently I overheard a discussion between two Algonquin that left me feeling on the one hand horrified, yet on the other hand a glimmer of gratefulness that someone has been fulfilling their clan responsibilities. The first person argued that the Algonquin must not dismiss the currently tabled, and soon to be ratified, Algonquin agreement in principle (AIP), “merely on two items”, those items being the amount of land and the amount of resource revenue sharing stated. The other person responded in a way that I thought was simple yet clever. This person stated that if someone was to read through the AIP and gather up as many as twenty-two good points, this larger number – twenty-two – alone does not in itself mean that the two points of land and resources are not the most significant to the Algonquin future. Many people, such as Elijah Harper and Alice Olsen Williams, have long made this argument of the importance of land and resources. That said, it is important to stress that many people are not skilled at reading policy and law, AIPs included. Reading them is the specialized skill of lawyers and policy makers. Olthuis and Townshend are two qualified individuals that have evaluated past AIPs to determine why it is that they cannot be relied upon as a true source of land claims and self-government settlements. They provide a discussion of the James Bay Cree and the Northern Quebec Agreement. In asking, “What is it about the structure of the claims settlements that leads to non-implementation?” Olthuis and Townshend identify three factors that have led to non-fulfillment: A lack of political will on the part of non-indigenous governments; Vaguely worded provisions in the agreements; and, Missing elements (41). A lack of political will is the practice whereby Canada, in their desire to eliminate their constitutional and legal obligations as cheaply as possible, defines their responsibilities in very narrow terms rather than addressing the real issues. In terms of vague provisions, Olthuis and Townshend argue this approach occurs when matters cannot be agreed upon resulting in the issues being papered over. This papering over, or alternatively stated vagueness in agreements, makes it difficult for Indigenous peoples to then rely upon the AIP to assure the fulfillment of their rights. In terms of missing elements, this approach occurs when provisions are excluded in the final agreements, in particular provisions related to jurisdiction of Indigenous governments. As a result, the final agreements lack clarity on the jurisdiction needed to viably operate the programs and institutions established in the very agreements. Thus, although final agreements are achieved, unresolved matters resurface. Olthuis and Townshend conclude that due to a lack of political will, papering over issues, and a lack of jurisdictional clarity, the governments of Canada are merely negotiating a document rather than a viable future for Indigenous people. In the case of the James Bay Cree, the document was one of 450 pages loaded with highly technical and legally complex jargon. Olthuis and Townshend also offer that once these agreements are ratified they are viewed as the beginning of the end of a relationship between governments and First Nations, rather than the beginning of a new relationship, where Indigenous people are then forced to litigate Canada into implementation. At the same time, these final agreements provide for the legislative extinguishment or the release of all Indigenous interests to the territory covered by the AIP. The Union of British Columbia Indian Chiefs offer, “Modern land claims agreements will create a double standard in which the interests of the federal and provincial Crowns and third parties are recognized. These rights will simply continue to exist, they will change and adapt over time, they will continue to live. … The rights of the Indigenous Peoples’, on the other hand, will be frozen and will not grow and adapt. If these rights are not written into the Agreement, they will no longer exist, they will be dead” (n.p.). It is precisely for this reason that Russell Diabo argues, “Canada’s Land Claims and Self-Government policies are far below the international standards set out in the Articles of the United Nations Declaration on the Rights of Indigenous Peoples” and refers to the process as a process of self-termination (4). The Crap of the Algonquin Offer Recently, after hundreds of years of asking that our rights to land, resources, and self-government be respected, and after twenty-three years of negotiating, the Algonquin of Ontario offer was tabled: 1.3% of our traditional territory and a $300 million payment. Finding this settlement offer disturbing Algonquin Anishinaabe-inini Michael Ranger offers, “The Creator entrusted us with protecting this land to ensure it can support future generations. This land is not just ours, it belongs to our children and future generations.” He adds, “They have an interest and stake in this land, how can we legally sell their interest in it?” References Diabo, Russell. “Harper Launches Major First Nations Termination Plan: As Negotiating Tables Legitimize Canada’s Colonialism.” First Nations Strategic Bulletin 10.7-10. June-Oct. 2012. 15 Nov. 2012 <http://intercontinentalcry.org/wp-content/uploads/2012/11/FNSB-July-Oct-12.pdf>. Olthuis, John A., H.W. Roger Townshend. “Is Canada’s Thumb on the Scales? An Analysis of Canada’s Comprehensive and Specific Claims Policies and Suggested Alternatives.” For Seven Generations: An Information Legacy of the Royal Commission on Aboriginal Peoples. CD-ROM. Ottawa: Libraxus, 1997. Union of British Columbia Indian Chiefs. “Certainty: Canada’s Struggle to Extinguish Aboriginal Title.” 23 Feb. 2013 <http://www.ubcic.bc.ca/Resources/certainty.htm#axzz2Nc7YY Zwe>. Lynn Gehl is an Algonquin Anishinaabe-kwe from the Ottawa River Valley. She has a section 15 Charter challenge regarding the continued sex discrimination in The Indian Act, is an outspoken critic of the Ontario Algonquin land claims and self-government process, and she recently published a book titled Anishinaabeg Stories: Featuring Petroglyphs, Petrographs, and Wampum Belts. You can reach her at lynngehl@gmail.com and see more of her work at www.lynngehl.com.
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When Prime Minister Stephen Harper offered the residential school apology in the Canadian parliament on June 11, 2008 he stated the reason for doing so was that the lack of one was a barrier to the healing and wellness of survivors. I, though, thought his rhetoric was nothing but a pile of nonsense in that it was void of any real practical value. As an Algonquin Anishinaabe-kwe who has spent a lot time looking at the history of the Algonquin land claims and self-government process at the doctoral level, I know full well that the contemporary process offers, for the most part nothing. The amount of land and resources Indigenous Nations gain in the contemporary land claims and self-government process is so miniscule that viable self-government is not possible. Let’s face it, 1.3% of our land base and three hundred million dollars will not cut it. Clearly the process is not a negotiation between equal nations leading to genuine self-government for Indigenous Nations. Rather, it is a perpetuation of a colonial and patriarchal relationship. In the Anishinaabe tradition knowledge is located in both oratory and the associated practices and rituals that accompany and follow. Oratory and practices/rituals inform and re-enforce one another. As such, Stephen Harper’s words were meaningless to me because at the level of practice the contemporary land claims and self-government process continues to set huge limitations on Indigenous self-government. Thinking through my Anishinaabeg worldview as I do I found Indigenous leader and cultural icon Elijah Harper’s more recent discussion of Stephen Harper’s oral apology of the residential school history and the accompanying practices and rituals interesting and affirming. Elijah, himself a survivor of the residential school system, was a keynote speaker at the “From Indian Residential Schools to Truth and Reconciliation Conference” in Peterborough, Ontario that took place on May 5th and 6th, 2012. This community driven conference was organized by the Kawartha Truth and Reconciliation Support Group which consisted of Indigenous peoples and descendants of settler allies and it was chaired by Alice Olsen Williams. The Truth and Reconciliation (TRC) as most know emerged from the apology that Stephen Harper offered. During his quietly spoken keynote address Elijah Harper relied on his knowledge of parliamentary procedures explaining that the practices/rituals accompanying Stephen Harper’s apology did not match the oratory. Elijah explained that during the reading of the apology parliament was in session in that the Speaker of the House of Commons was in his rightful location – in the Speaker’s chair, and the House of Commons' Mace was in its rightful location – on the Clerk’s table. Elijah explained that these two practices/rituals symbolize that parliament is in official proceedings. These practices/rituals are always in place when foreign dignitaries or heads of state speak in the House of Commons. While these two practices/rituals were adhered to during Harper’s oral reading of the apology, Elijah further explained that when the Indigenous leaders spoke the Speaker of the House left his chair, returning to the floor, and the House of Commons Mace was moved to a non-official location, indicating that parliament was no longer in formal session. It is clear to me that in explaining this lack of harmonization between oratory and practices/rituals Elijah was asking listeners to appreciate that Indigenous peoples were not respected and recognized as the Nations that they are. Elijah, myself, and many others agree on the importance of land and resources in Indigenous self-determination. While talking with him after his keynote he pointed out that during 2010 the Canadian national domestic product was a whopping $600 billion. It was clear to me that Elijah was arguing Indigenous Nations are entitled to our rightful share of the wealth of our resources of our land. Interestingly, during Alice Olsen Williams’ workshop session, where she was show-casing a community quilting project, she began with offering the same position stating, “Give us our land and resources”. It was clear to me that Alice was arguing that this is where genuine reconciliation will be played out. Jan Longboat agreed with the importance of land and resources. This became apparent when Jan stood up and thanked Alice for her wise words. After Elijah finished his keynote address I also had a conversation with the attending Truth and Reconciliation Commissioner, Marie Wilson, a non-Indigenous person. I blatantly informed the commissioner that as an Algonquin Anishinaabe-kwe I find the entire TRC process, meaning the apology and the events that are presently unfolding in Canada, to be patronizing. Of course she defended her position. Regardless, I did not budge; after all, I carry first-hand knowledge about the current land claims and self-government process where Indigenous Nations continue to be denied our land and resources – again the two resources where viable self-government is manifested. Appreciating that I was not going to budge on my position about feeling patronized, the commissioner added that she is doing what the people want and feel is needed. My response to her, though, was “Yes, I understand that people need to feel that their grief has been heard before they can move on, that is if they can move on.” Regardless, I explained “After these people are heard, many may turn their attention to the practices [again where knowledge is] inherent in the contemporary land claims and self-government process, as I and others have, and they may come to realize they were duped by the oral apology”. What I meant by this is that they may come to realize, as I have in my thinking and knowing process, that the practices on the ground fail to meet the oratory of the apology. “Once they find themselves in this place, many may return to a place of feeling manipulated, denied, and lied to. And this new place may be a place of greater disenfranchised grief” I added. In sum, oratory and practices/rituals did not harmonize and inform one another as they should have during Stephen Harper’s apology and in this way fork tongue discourse is alive and well in the Harper government, rather than being a colonial strategy of the past. All this said, some people may wonder, “If I know that the contemporary land claims and self-government process is rooted in colonial practice and the oral apology lacks real substance, why did I bother to attend the TRC conference?” My response is layered. First, I attended the conference because I wanted the opportunity to listen to Elijah Harper’s thoughts on the apology and the TRC process. I wanted to learn if he felt the same way that I do. Second, I attended the conference because I realize that some residential school survivors do need a venue to voice what Elijah himself suggested during his keynote. That being “We need to forgive them”. When I listened to Elijah’s words I interpreted them to mean, not that we forgive them, move past our grief and move on, but rather that there is the need to forgive what the settlers and colonizers have done, and for that matter continue to do, in that they are indeed pitiful human beings versus beings that bear the intelligence, voice, and practices that members of the Tree or Deer Nations hold. Dr. Lynn Gehl is an Algonquin Anishinaabe-kwe from the Ottawa River Valley. She has a section 15 Charter challenge regarding the continued sex discrimination in The Indian Act, she is an outspoken critic of the Ontario Algonquin land claims and self-government process, and she recently published a book titled Anishinaabeg Stories: Featuring Petroglyphs, Petrographs, and Wampum Belts. In her spare time she carves nickel-sized turtles. You can reach her at lynngehl@gmail.com and see more of her work at www.lynngehl.com. |
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