The First Ministers Conference is a gathering of Canada s provincial premiers with the federal prime minister.

Transcription

1 The First Ministers Conference is a gathering of Canada s provincial premiers with the federal prime minister. Topic 1: Aboriginal Rights What are Aboriginal rights? Aboriginal rights are collective rights which flow from Aboriginal peoples continued use and occupation of certain areas. They are inherent rights which Aboriginal peoples have practiced and enjoyed since before European contact. Because each First Nation has historically functioned as a distinct society, there is no one official overarching Indigenous definition of what these rights are. Although these specific rights may vary between Aboriginal groups, in general they include rights to the land, rights to subsistence resources and activities, the right to selfdetermination and self-government, and the right to practice one s own culture and customs including language and religion. Aboriginal rights have not been granted from external sources but are a result of Aboriginal peoples own occupation of their home territories as well as their ongoing social structures and political and legal systems. As such, Aboriginal rights are separate from rights afforded to non-aboriginal Canadian citizens under Canadian common law. History of Aboriginal rights and the Crown During settlement and colonization, treaties were negotiated between the Crown and local Aboriginal populations, guided by the Royal Proclamation of The Proclamation was a British Crown document that acknowledged British settlers would have to address existing Aboriginal rights and title in order to further settlement. During treaty negotiations, the Crown guaranteed certain rights to the local First Nations. There has since been much debate in and out of the courts over whether or not these agreements extinguished Aboriginal rights for the rights set out in the treaty. For many First Nations, this debate is ongoing. Many of these rights, treaty and otherwise, have been infringed upon since the arrival of European settlers in what is now Canada. Aboriginal peoples have consistently asserted their rights since the arrival of settlers, but have received little to no recognition by the colonial institutions that facilitated these infringements. Historically, some non-aboriginal politicians claimed to support the petitions and other actions Aboriginal peoples took in their fight to have

2 their rights recognized. However, many non-aboriginal politicians did not consider the question of Aboriginal rights to be a government priority and followed the general belief that the Crown s sovereignty extinguished any existing Aboriginal rights and title. In part due to this colonial mentality stemming from the Doctrine of Discovery an assertion in international law that a European colonial power could claim title to newly discovered territory-- Canadian legal and governmental institutions were not set up to address Aboriginal rights. Generic rights are held by all Aboriginal peoples across Canada, and include: Rights to the land (Aboriginal title) Rights to subsistence resources and activities The right to self-determination and self-government The right to practice one s own culture and customs including language and religion. Sometimes referred to as the right of cultural integrity, The right to enter into treaties. Many Aboriginal peoples understand their relationship to the Crown as a nation-to-nation relationship, and therefore understand their rights as falling within the domain of international law. Throughout periods of European colonization and settlement, Aboriginal leaders and delegations have taken their concerns to international forums such as the United Nations (UN) in order to argue against the British Crown s imposition of its own laws and regulations onto existing Aboriginal legal systems and institutions. Canada is bound by the UN Charter (1945) to foster friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples. 1 However, Canadian governments have been hesitant to acknowledge the Aboriginal right to self-determination due to uncertainty over what it would mean for Canada. In response to these concerns, many Aboriginal groups have assured the Canadian government that they would remain a part of Canada but with their own systems of governance. Colonial governments in Canada initially practiced a policy of extinguishment, which meant that Aboriginal peoples rights would be surrendered or legislated away, often in exchange for treaty rights. Treaties were negotiated between Canada and Aboriginal leaders in respect of the aforementioned nation-to-nation relationship. While each treaty differed, many historical treaties guaranteed that Aboriginal peoples would receive certain payments and rights, such as a right to hunt or fish, and rights to education. Over time, however, many Aboriginal people found that the Canadian state continued to subjugate them and infringe upon the very rights they thought would be respected. Many Aboriginal leaders and activists brought their concerns to the government, yet the Canadian government continually silenced Aboriginal peoples by obstructing the avenues

3 in which they might seek recognition and redress. For example, the government added specific pieces of discriminatory legislation in the Indian Act that made it illegal for Aboriginal people to organize politically or to hire legal counsel to further land claims. The government did not repeal these discriminatory pieces of legislation until The repealing of these laws finally enabled Aboriginal peoples to pursue their legal and political interests in ways that had before only been available to non-aboriginals. This, along with other events in the 1950s and 1960s such as the White Paper policy proposal, contributed to a surge of Aboriginal political organizing and activism toward recognizing Aboriginal rights. Many Aboriginal peoples have since returned to the court system to address grievances related to infringements of their rights. How the court system is addressing Aboriginal rights? In the early 1980s, Canada was preparing to create a Charter of Rights and Freedoms as well as patriate the Constitution. During this time, Aboriginal leaders and organizations such as the Union of BC Indian Chiefs (UBCIC) lobbied for the inclusion of Aboriginal rights with the hope that its recognition in the Constitution would contribute to the protection of these rights. After a long struggle with much debate, discussion and revisions, in 1982 the Canadian government formally recognized Aboriginal rights and enshrined them in Section 35 of the Canadian Constitution. The Constitution, however, does not define specifically what these rights are. The government stipulated that these rights were to be defined in the courts on a case-by-case basis. There have since been a number of court cases that have contributed to this definition. The 1990 R v Sparrow decision, for example, created the Sparrow test which defined the scope of what constitutes an Aboriginal right and defined to what degree the Canadian government can reasonably infringe upon, or limit, it. This case was instrumental, albeit very controversial, in that it confirmed Aboriginal rights are not absolute. The 1996 R. v. Van der Peet decision created the Van der Peet test which further set parameters for the courts to determine what constitutes a valid Aboriginal right. These tests have come under criticism from both Aboriginal and non- Aboriginal people who claim that, in trying to achieve certainty over what constitutes an Aboriginal right, the courts may have instead limited the flexibility and fluidity of Aboriginal rights. For example, the Van der Peet test only recognizes as valid Aboriginal rights that were practiced prior to European contact. Some scholars and legal experts caution that this test then freezes Aboriginal rights in a post-contact era without accounting for the necessity of Aboriginal societies to adapt over time. Some scholars and legal experts, such as political scientist Avigail Eisenberg, argue that the perception of legitimate rights as only those that existed pre-contact is ethnocentric, as it is not equally applied to non-aboriginal rights. 2 Aboriginal rights as inherent

4 Although the court system has further defined Aboriginal rights, enabling the government to address Aboriginal rights within more clearly defined parameters, Aboriginal rights do not exist because the courts or the Crown has recognized them. The Crown cannot bestow Aboriginal rights upon a people who enjoyed these rights prior to the Crown s existence. Rather, these cases can be seen as a means by which the government and the legal system have attempted to accommodate Aboriginal peoples rights within a system that had not been initially designed to recognize them. Aboriginal perspectives on government-defined Aboriginal rights Some Aboriginal leaders and key figures oppose the government s methods of defining Aboriginal rights. Mildred C. Poplar, formerly with the UBCIC, claims that section 35 distracts Aboriginal peoples from asserting a more meaningful definition of Aboriginal rights that does not rely upon colonial government structure: Instead of cooperating with the government we have to remember that we are Nations of people, and remember what it was we were fighting for in the first place. We were never fighting for section 35, we were fighting to preserve our Nation-to-Nation relationship, for recognition as Sovereign Nations, and to Decolonize Our People. In some ways, section 35 has diverted our people, and the new leadership instead of fighting for our rights, is negotiating to help Canada and the provinces define them Section 35 might be one more tool to uphold the fiduciary duty that the Crown owes to Our People, but our real fight is to rebuild our Nations and to gain recognition at the international level. 3 In a similar vein, Mohawk scholar Taiaiake Alfred cautions that Indigenous leaders who use the court system to legitimize their rights in the eyes of the Crown cannot hope to protect the integrity of their nations. He explains: To enlist the intellectual force of rights-based arguments is to concede nationhood in the truest sense. Aboriginal rights are in fact the benefits accrued by indigenous peoples who have agreed to abandon their autonomy in order to enter the legal and political framework of the state. After a while, indigenous freedoms become circumscribed and indigenous rights get defined not with respect to what exists in the minds and cultures of the Native people, but in relation to the demands, interests, and opinions of the millions of other people who are also members of that single-sovereign community, to which our leaders will have pledged allegiance. 4

5 On the other hand, some scholars and leaders, such as law professor John Borrows, understand the use of court system as a means to work towards regaining the power of self-determination by legitimizing Aboriginal rights within Canadian legal institutions. 5 Borrows further emphasizes that the Canadian legal system is not strictly a colonial construct, incompatible with Aboriginal law, as is commonly perceived, but has been built upon a foundation of British, American, and Aboriginal law. 6 Indigenous philosopher and scholar Dale Turner has suggested that Aboriginal peoples must be central in defining their own rights if Aboriginal rights discourse is to become appropriately incorporated into the Canadian legal landscape. In the meantime, cases will continue to be brought before the court and will further contribute to definitions of Aboriginal rights, undoubtedly sparking further debate and discussion. Discussion Questions & Topics to Consider How does the current federal government address Aboriginal rights? How about your provincial government? This section refers exclusively to Aboriginal rights in Canada. How are Aboriginal rights addressed in the United States? How do other nation-states acknowledge Aboriginal rights within their borders? What are some recent court cases addressing Aboriginal rights? Examine one carefully. What was the final decision? What were the main arguments from either side? What implications might this decision have (for the First Nation, for the government, for the public)? What are some of the ways in which Aboriginal peoples assert their rights? Have there been any recent events or situations where Aboriginal groups have publicly asserted their rights? Who were the groups involved? Why do you think this right is important for them? What would be the implications of losing this right? Despite some protections, Aboriginal rights can be overridden. Under what circumstances can a government legally infringe upon an Aboriginal right? Topic 2: Canada s water reservoirs Introduction

6 Overall, Canada is blessed with freshwater resources. But their availability varies considerably from season to season and year to year, and from one region to another. Faced with floods, droughts, and other problems of water supply, engineers have stretched available resources by means of structures: dams, which hold back flows for release when they are more useful or less destructive, and diversions, which redirect the resource to where it is more useful. In fact, dams and diversions often go together: water is stored in a reservoir formed behind a dam, and then withdrawn by ditch, canal, or pipeline from its natural course for transfer elsewhere. Dams Generally, rivers are dammed to create reservoirs for power production, downstream flood control, recreation, or irrigation. Canada ranks as one of the world's top ten dam builders. Although the Canadian Dam Association's register of dams (2003) reports 933 large dams*, there are many thousands of small dams. Source: Canadian Dam Association's register of dams (2003)

7 In Canada, large dams are used primarily for hydroelectric power generation (596 dams), but are also used for the following purposes: multi-purposes (86 dams) tailings (82 dams) water supply (57 dams) irrigation (51 dams) flood control (19 dams) recreation (7 dams) other purposes (35 dams) When a dam is constructed it can have an effect on the water quality of a river system. The land behind it is flooded which may mean the loss of valuable wildlife habitat, farmland, forests, or town sites. Accumulation of sediments in the reservoir can have a detrimental effect on water quality by creating increased concentrations of harmful metal and organic compounds in the reservoir. If vegetation is not removed behind the dam before flooding, other problems can occur. For example, the eutrophication process may occur at a faster rate and adversely affect the water quality. Diversions In the past, diverting flow from one basin to another has been primarily based on economic development through energy generation, irrigation, and industrial output. In Canada, major diversion projects have been developed by power utilities to increase flows for hydroelectric production, especially in northern projects such as the Churchill-Nelson region in Manitoba and in the James Bay region in Quebec. Projects have also been constructed for irrigation purposes and industrial development such as aluminum production. Interbasin diversions can have undesirable social and environmental consequences. For example, the amount of water being removed in relation to the amount of water available, existing water demand and uses, quality of water being transferred, including the potential for the introduction of undesirable non-native species and pathogens, can all have significant impacts. The implication of introducing non-native species is particularly significant when major drainage basins are involved. Social structures may also be affected. Sometimes communities are flooded out or people are forced to change their livelihood or otherwise modify their traditional way of life. While, in the past, major diversions and transfers have been used to fulfill water resource and economic development objectives, it is widely recognized that we have moved away from the era

8 of large scale diversions and transfers in Canada and the United States. Environmental and social considerations are making these transfers of water a less desirable option. Present approaches now favour reducing the demand on water uses.

9 Topic 3: Climate Change Canada's Way Forward on Climate Change The scientific evidence is clear: climate change is one of the greatest threats of our time. From increased incidences of droughts, to coastal flooding, to the expanding melt of sea ice in our Arctic, the widespread impacts of climate change compel Canada to take strong action now. Contributing to Global Efforts The Government of Canada is committed to working with international partners to reach an ambitious global agreement this is anchored in science and leads the world towards a lowcarbon, climate resilient economy. Canada is also committed to supporting the poorest and most vulnerable countries to adapt to the adverse effects of climate change, and is doing its part to mobilize critical investments that will achieve sustained emissions reductions in developing countries. Collaborating with Provinces and Territories The Government of Canada will provide national leadership and join with the provinces and territories to take action on climate change, put a price on carbon, and reduce carbon pollution. Together, we will: Attend the Paris climate conference, and formally meet within 90 days to establish a pan- Canadian framework for combatting climate change. Set a truly national target that we will work together to achieve.

10 Ensure that the provinces and territories have targeted federal funding and the flexibility to design their own carbon pricing policies. Investing in Clean Energy and Clean Technology The Government of Canada will protect Canada s communities and grow our economy by making significant new investments in green infrastructure and clean technologies. As part of this commitment, we will: Endow a $2 billion Low Carbon Economy Trust to fund projects that reduce carbon. Fulfill our G20 commitment and phase out subsidies for the fossil fuel industry. Work with the Provinces and Territories to develop a Canadian Energy Strategy to protect Canada s energy security, encourage energy conservation, and bring cleaner renewable energy into the electricity grid. The Paris Agreement On December 12, 2015, Canada and 194 other countries reached the Paris Agreement, an ambitious and balanced agreement to fight climate change. This new Agreement will strengthen the effort to limit the global average temperature rise to well below 2 C and pursue efforts to limit the increase to 1.5 C. The Paris Agreement and accompanying decisions recognize the essential roles of subnational governments, cities, civil society, the private sector and financial institutions in responding to climate change, and affirm the importance of engagement with all levels of government. The Agreement also identifies the need to respect, promote and consider the rights of Indigenous peoples, local communities, human rights and gender equality when taking climate action. The Agreement also includes language describing the need for a just transition of the workforce to a lower-carbon economy, the creation of decent work and quality jobs, and education, public participation and public access to information. The following summary provides further details on long-term goals, provisions for mitigation and adaptation, cooperative approaches, finance, transparency, stock-taking, pre-2020 ambition, signing and coming into force criteria. Long-term Goals In addition to the 2 C temperature goal and efforts to limit the rise to 1.5 C, the Paris Agreement also aims to foster climate resilience and lower greenhouse gas development, as well as to make climate flows consistent with a pathway toward a lower carbon future.

11 Mitigation Parties to the United Nations Framework Convention on Climate Change (UNFCCC) have been invited to submit their first nationally determined contribution no later than when they submit their instruments of ratification, accession or approval of the Paris Agreement. At present, Parties have set targets for 2025 or 2030, and the Agreement has provisions to institute common time frames. By 2020, Parties with a 2025 target are invited to communicate a 2030 target. Parties with a 2030 target are invited to re-communicate or update that target. Thereafter, contributions would be updated with increased ambition every five years. Contributions are to be recorded in an online registry. In 2018, Parties will participate in a facilitative dialogue to take stock of their collective efforts in relation to progress toward the long-term goal and to inform the preparation of new or updated nationally determined contributions. Adaptation Adapting to current and future climate change impacts is recognized as a local, subnational, regional, international and global challenge. The Paris Agreement establishes a global goal of enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change with a view to contributing to sustainable development and ensuring an adequate adaptation response in the context of the temperature goal. Parties are invited to prepare and communicate adaptation plans and priorities to be recorded in a public registry. The Agreement also recognizes the need to enhance cooperation to address loss and damage associated with the adverse impacts of climate change through the strengthening of the existing Warsaw International Mechanism. Cooperative Approaches The Paris Agreement acknowledges that Parties may use internationally transferred mitigation outcomes in implementing their nationally determined contributions so long as Parties report transparently and apply robust accounting rules, notably to avoid double counting. The Agreement also establishes a new, centrally administered mechanism to be built on the experience and lessons learned from existing mechanisms and approaches under the UNFCCC. Finance Developed countries continue to have an obligation to provide financial resources to assist developing countries, and other Parties are encouraged to provide support on a voluntary basis.

12 Parties agreed that scaled-up financing should aim to achieve a balance between mitigation and adaptation and that financing will continue to flow from a variety of sources. Developed countries will continue to take the lead in mobilizing climate finance, and Parties will set a new long-term finance goal by 2025 from the floor of US$ 100 billion per year, taking into account the needs and priorities of developing countries. Transparency In order to build mutual trust and confidence and to promote effective implementation, the Paris Agreement establishes an enhanced transparency framework. All Parties will be required to provide information related to greenhouse gas emissions, progress toward their emissions targets, adaptation efforts, and the provision and receipt of finance. The Agreement takes into account the varying levels of Parties reporting capacities by providing some flexibility on how climate action is reported. Notably, the information reported will undergo a technical expert review and be considered by other Parties through a multilateral process. Stock-taking To promote rising ambition, a global stock take will take place every five years starting in 2023 to assess the collective progress in implementing the provisions of the Agreement and in meeting the long-term goal. The stock take will consider mitigation and adaptation actions undertaken by all countries, and the adequacy of financial, technical and capacity-building support. The results of the stock take will inform Parties in updating their nationally determined contributions. Enhancing Pre-2020 Ambition Opportunities will continue to exist in the pre-2020 period for all levels of government, the private sector, financial institutions and civil society to showcase efforts to address and respond to climate change. Building on the Lima Paris Action Agenda, there will be a high-level event in conjunction with each session of the Conference of the Parties (COP). Two high-level champions will be appointed to facilitate and strengthen high-level engagement on the behalf of the president of the COP during that period. Entry Into Force A signing ceremony for the Paris Agreement will be convened on April 22, 2016, and the Agreement will remain open for signature for one year. Once at least 55 Parties accounting for at least 55% of total greenhouse gas emissions have ratified or approved the Agreement, it will enter into force.

13 Works Cited Agnew, Jack MI. "Aboriginal Rights." Aboriginal Rights. Indigenous Foundations, 22 Feb Web. 22 Feb Long, Brendan MI. "Environment and Climate Change Canada - Water - Dams & Diversions." Government of Canada, Environment and Climate Change Canada. Government of Canada, 30 July Web. 22 Feb United Nations Framework Convention on Climate Change, Andrew James. "Paris Agreement - Opening for Signature and High-level Signature Ceremony Convened by the UN Secretary General." Paris Agreement - Opening for Signature and High-level Signature Ceremony Convened by the UN Secretary General. United Nations, June-July Web. 22 Feb