Characteristics of a Nation- to- Nation Relationship: Jurisdiction

Transcription

1 Characteristics of a Nation- to- Nation Relationship: Jurisdiction Summary Report Prepared by Marcia Nickerson Coast Coal Harbour Hotel Vancouver 1180 W Hastings St April 25-26, 2017 Dialogue Co-Hosts Supported By

2 Table of Contents BACKGROUND: NATION- TO- NATION RELATIONSHIP 3 DIALOGUE SERIES: JURISDICTION AND THE NATION- TO- NATION RELATIONSHIP 4 TAKING STOCK OF THE CURRENT ENVIRONMENT 5 CANADA S SESQUICENTENNIAL 5 UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLE 5 REFLECTIONS ON RECONCILIATION 6 FOUNDATIONS OF THE NATION- TO- NATION RELATIONSHIP 6 SELF- DETERMINATION 6 RESTRUCTURING THE RELATIONSHIP 7 CONCEPTUALIZING JURISDICTION 8 WHAT IT MEANS TO GOVERN 8 THE SUBSIDIARITY APPROACH 9 JURISDICTION OVER TAXATION & REVENUE SHARING 9 BUILDING INSTITUTIONS 10 JURISDICTION IN PRACTICE 10 3 CORE AREAS OF GOVERNANCE 10 4 CATEGORIES OF JURISDICTION 11 RESTORING HEREDITARY GOVERNANCE & JURISDICTION 12 EXERCISING JURISDICTION 13 SECTORAL JURISDICTION 13 RESTORING NATIONHOOD 14 FIRST NATION AUTHORITY AND DECISION MAKING 15 EXERCISING CUSTOMARY LAWS 15 VESTING OF JURISDICTION 16 COMMUNITY DRIVEN, NATION BASED 16 INTERGOVERNMENTAL RELATIONSHIPS 17 ROLE OF MUNICIPAL JURISDICTIONS 17 MOVING FORWARD 18 APPENDIX A: PARTICIPANTS LIST 20 APPENDIX B: AGENDA 23 APPENDIX C: ABOUT US 28

3 Background: Nation- to- Nation Relationship The federal government has committed to pursuing a Nation-to-Nation relationship based on recognition, rights, respect, co-operation and partnership with Indigenous people in Canada, acknowledging this as both the right thing to do and a path to economic growth. This commitment invites the opportunity for thoughtful reflection and discussion of the path forward to achieve genuine Nation-to-Nation relationships. As the nation looks to mark the sesquicentennial and celebrate 150 years since Confederation, important conversations are being had about the Canadian identity, both past and future. A new nation-to-nation relationship is a fundamental component of fostering reconciliation and restoring resilience to Indigenous Nations. Over the course of the past 30 years from Section 35 negotiations, through the Royal Commission, to the recommendations of the Truth and Reconciliation Commission Indigenous leadership has articulated the many aspects of what the nation-tonation relationship means. Establishing a new relationship with the Crown includes Indigenous self-government founded in self-determination, legal capacity and access to resources; the recognition of inherent Aboriginal and Treaty rights, as well as the ability to exercise and implement inherent rights and responsibilities; treaty renewal and treaty implementation; fiscal arrangements and resource revenue sharing; and closing the social and economic gaps faced by Indigenous peoples. Beyond reconciliation, empowerment of Indigenous nations with the capacity for selfgovernment was and remains a significant feature of creating a modern, renewed relationship. Recognizing and enabling Indigenous governments would require a significant investment but is considered by many a natural extension of the rights affirmed in Section 35 of the Constitution Act. Progress on the transfer of governing authority, lands and resources has been slow and often mired in legal complexity. Both Inuit Tapiriit Kanatami and the Métis National Council have publically stressed the need for an approach that recognizes and respects the distinctions between Indigenous peoples. In fact, In February 2017 the Prime Minister and Inuit leaders signed the Inuit Nunangat Declaration, a shared commitment to a renewed Inuit-Crown relationship between Inuit Tapiriit Kanatami and the Government of Canada that will advance shared priorities including the implementation of Inuit land claims agreements, social development, and reconciliation between Inuit and the Government of Canada. As of April 2017, the federal government and Métis Nation of Canada signed the Canada-Métis Nation Accord focussing on the establishment of a permanent forum discussions with the Métis on employment, health and housing for Métis people. Recognizing the opportunities this moment presents, the Institute on Governance is convening a dialogue around the Nation-to-Nation Relationship. The IOG believes that nations and leaders must have the opportunity to share their vision in an open forum and direct the agenda moving forward. By convening experts and facilitating the exchange of knowledge, this project aims to bring to the forefront systemic governance challenges that have impeded advancements in relationship building to date. This dialogue series seeks to articulate the characteristics of a nation-to-nation relationship, as defined by Indigenous leaders and government departments as well as identify key issues, challenges and opportunities. 3

4 Dialogue Series: Jurisdiction and the Nation- to- Nation Relationship Characteristics of a Nation-to-Nation Relationship, is a five-part dialogue series to be held across Canada seeking to bring together experts to facilitate the exchange of knowledge, focusing on four themes central to the relationship: Nation Building and Nation Re-Building; Jurisdiction; Intergovernmental Fiscal Relationships; and Collective Governance and Wealth Creation. The purpose of these sessions is to stimulate the discussion through providing a neutral environment where stakeholders can openly communicate the precursors for change. The series will culminate in a national event that will aim to address the outcomes of the discussions that emerged, including identified themes linkages, challenges, potential results, and timelines. The Institute on Governance (IOG) and Canadians for a New Partnership (CFNP), with support from the New Relationship Trust, convened a dialogue on Jurisdiction and the Nation-to- Nation Relationship in Vancouver on April 25-26, The dialogue on jurisdiction was focused on a number of key guiding questions, including: What lessons can we take from modern assertions of jurisdiction? What are the practical considerations that impact the scope of authority? How can the federal government help make meaningful progress in including Indigenous governments as full participants in F/P/T negotiations? How do you find ways to bring Indigenous voices into other government and decision-making processes? What types of mechanisms will enable greater control over decision-making, and eventually lead to the full realization of Aboriginal self-governance? Which components of self-government should be priorities for nations lacking adequate control over decisionmaking? What are the implications of a nation-to-nation relationship for the regulatory approval process? How does authority and decision-making need to evolve? What does governance look like if jurisdiction is not land based? What follows is a dialogue summary focussing on and advancing the key concepts, as opposed to a verbatim record of the discussion. For direct remarks and comments by speakers, visit the IOG YouTube channel for video clips. Also, to reference the discussion paper informing the dialogue series, click here: Characteristics of a Nation-to-Nation Relationship. Annotated agendas and speakers bios can also be found on the IOG website. The next dialogue will focus on Intergovernmental Fiscal Relationships and will be held in Toronto on June 5 th -6 th, co-hosted by the Chiefs of Ontario. 4

5 Taking Stock of the Current Environment Canada s Sesquicentennial Elder Kwes'Kwestin James Kew of the Musqueam First Nation remarked how Canada is a new nation, whereas Musqueam is an historic nation, with its roots in antiquity. While Canada is marking its sesquicentennial, the Musqueam are working to recover from genocide. Kwes'Kwestin emphasized that through the Indian Act, blood quantum based race laws remain enshrined in Canadian law; and, only if the Canadian public is committed to international human rights will this law be repealed. Building on this, Miles Richardson noted that although it is an important moment, the Sesquicentennial (Canada 150) is not a moment of celebration for First Nations. While the last 150 years have been a dark period between the Crown and Indigenous people, Richardson indicated at this time we have the opportunity to turn this relationship around, making the next 150 years what the last 150 years ought to have been. According to former National Chief Ovide Mercredi, the 36 men who sat in Charlottetown in 1867 did not have the full picture or a complete vision; but we do now. It is incumbent on Canada and First Nations to complete the story of our coexistence. There were treaties before Confederation and First Nation leadership at the time understood that they had to create partnerships with Europeans. Respect and reciprocity between two different groups is not a foreign idea to First Nations; and this is a fundamental underpinning of the nation-tonation relationship. These remarks echo responses from Indigenous people across the country, publically citing Confederation as the beginning of many atrocities and attempted genocide of Indigenous peoples - residential schools, the Sixties Scoop, murdered and missing women, inadequate health care and education, and exploitation of land and resources. How can we undo all of this damage? Senator Murray Sinclair suggests: Time and commitment. Recognition of what happened needs to remain: We need to never forget this history so we do not repeat it again, so we can prevent it from ever happening again. United Nations Declaration on the Rights of Indigenous People In addition to the Sesquicentennial, it is also the 10-year anniversary of the United Nations Declaration on the Rights of Indigenous People (UNDRIP), which many suggest should be the framework of a new relationship. Miles Richardson suggested that through a framework of recognition and respect Canada could find a way forward based on sharing and co-existing. This, he argued, is the potential that can be realized through a Nation-to-Nation relationship. Justice Slade indicated that a sincere commitment to UNDRIP calls for a process to engage with Indigenous groups on UNDRIP implementation in their proper collectivities (nations), as opposed to an organization such as the Assembly of First Nations which is an Indian Act Band related organization. Keith Harper, former US Ambassador to the United Nations Human Rights Council, provided insight into the workings of the UN, particularly what can and cannot be achieved within the human rights system and what Indigenous peoples should look towards the UN to accomplish versus what can be accomplished by domestic institutions. To illustrate this point, the UN is a political rather than a jurisdictional body, therefore Indigenous issues and international obligations can be publicly highlighted but not necessarily enforced. 5

6 UNDRIP, while generally accepted universally, is a set of principles that every state is supposed to strive towards, not a binding instrument or conventional treaty. Nothing in the international community is binding or enforceable like domestic law. Further, while the most important international instrument on human rights is the Universal Declaration on Human Rights, it is also not binding, not a treaty, and therefore not enforceable in courts. The value of domestic dispute resolving institutions lies in the ability to enforce. The intent of consent in the Declaration is: Free: without coercion Prior: before action is taken Informed: you have all the information to make a decision The fact of the matter is that each state has the authority to interpret those words, and each state interprets them differently; however, in plain language it means Indigenous people can determine what impacts them. Reflections on Reconciliation Senator Murray Sinclair described how there is no explicit reference to self-government in the Royal Proclamation, the Treaty of Niagara and the treaties that followed. Only with the introduction of the Indian Act do we see the first attacks on Indigenous self-determination. As such, Canadians need to acknowledge the endemic racism that has existed since Confederation. For example, should John A. Macdonald be on the $10 bill? Macdonald created the residential schools policy that sought to eliminate Indigenous peoples by not only taking children from their villages, but also destroying the villages and stripping them of their ceremonies, leaders, and culture, so when they returned the children could not recover. The policy was in place for 7 generations and many today are struggling with basic everyday challenges that most people in Canadian society can deal with easily. Mental health professionals are beginning to recognize the uniqueness of these challenges. Senator Sinclair reinforced that reconciliation is really about how to come to terms with history and how to move forward so our children can live the lives they deserve. Education is the key path forward. If we educate our children, teach them to respect each other and maintain that from early on through adulthood, the conversations they will have when they are the leaders of this country will be more productive. Fundamentally, education is a nationbuilding exercise. Although the federal government has not been doing its share of the work, a number of institutions have taken up this work within civil society. For example, more and more public schools are making an effort and law societies are beginning to require that lawyers get cultural sensitivity training before they can accept work with Indigenous people. Foundations of the Nation- to- Nation Relationship Self- Determination Ovide Mercredi, Former National Chief, began with a statement that has been consistently repeated by leadership throughout the dialogue process: Nationhood begins from our languages. Our identities are steeped in our languages. According to Mercredi, after generations of government attempts to identity and define Indigenous people, pushing them onto reserves, and into band-style governance: 6

7 This place Indigenous people occupy in the English language is demeaning and reflective of how they have been diminished and devalued by Canada and of why it is so easy for Parliament to do away with Indigenous people. The source of Indigenous authority in the Nation-to-Nation relationship is not Parliament, nor provincial government, nor Section 91(24) of the BNA Act, nor the Indian Act, nor the courts, including the Supreme Court of Canada (SCC). Indigenous people did not create these laws, nor empower settler governments to make laws over Indigenous people. Indigenous authority is not delegated from the Canadian Crown. Indigenous people have their own existing governments, based on ancient authority. Indigenous inherent rights and authority derive from ownership of ancestral lands and the resources contained within. It stems from their history as peoples living within their traditional territories and with other First Nations adjacent to their territories. Indigenous ownership does not have to be proven to the colonial regime. The inherent right to self-rule stands on its own legitimacy and is not dependent on Canada s acknowledgement for its existence. Mercredi called on Indigenous people to stop waiting for Canada to recognize them. No nation becomes great by waiting for another nation to give it permission to become great. First Nations are dealing with the impacts of the colonial experience and while there are some common threads, each First Nation has its own story about how certain decisions of government have impacted their lives and future. Acknowledging this is a key starting point for a genuine Nation-to-Nation relationship. Restructuring the relationship Ovide Mercredi described two key choices for a Nation-to-Nation relationship: 1) negotiating new treaties and properly implementing existing treaties according to the understanding of First Nations; or, 2) restructuring relationships through the Canadian Constitution. He noted contradictions in the recurrent concern Canadian politicians have with the potential for Indigenous people to make laws inconsistent with Canadian or provincial/territorial laws, potentially impacting Canada s authority and sovereignty, despite Canada s experience with shared power and concurrent law making with the provinces. He noted the reality is that Aboriginal title is in direct conflict with provincial jurisdiction over lands and resources. The landlessness of Indigenous people is one of the greatest crimes of Canada. Thus it is not possible to talk about Nation-to-Nation relationships without acknowledging it is impossible for First Nations to create livelihoods on reservations; and on top of that, reserves are not held in title by First Nations but by the federal government. Reconciliation requires restoring lands that belong to First Nations so that First Nations are not landless in their homeland. Canada s obligation is to facilitate the transition of First Nations from landlessness to major landowners in their territories. It is about ownership, not about use and occupancy. First Nations are looking to get out from under the jurisdiction of Section 91(24). This section has been used by Parliament to suppress First Nations, leaving them the only people in this country begging for resources to deal with housing, health and mental health. The Charlottetown Accord would have recognized First Nations as a third order of government and would have compelled government to honour existing treaties in the spirit and intent understood by First Nations. First Nations have used constitutional renewal as a way of moving forward. 7

8 Conceptualizing Jurisdiction What it means to Govern Honourable Murray Sinclair focused his remarks on answering the question: What does it mean to govern? Many Indigenous peoples have lost understanding of how they governed themselves before colonization and it will take time to revive or recreate those understandings and practices. Indigenous law comes from the creator, from their existence as people who have lived in their territories for thousands upon thousands of years. This history endows Indigenous people with the responsibility to take care of this place. This is the source of law and the essence of responsibility. Law at its most fundamental is about how we conduct relationships, such as between parents and children, for example. These laws are carried forward in stories. Senator Sinclair realized Indigenous people needed to rediscover who they were by learning who their people were. This process involves four key questions, inspired in part by Plato: 1. Where do you come from? What is your history as a human, who are your people and what is your creation story? What happened to your people during that time? How did your people deal with those challenges? Who are the heroes in your mythology? What are your ancient songs and teachings? You need to know all of this history before you were born and who you are today. 2. Where am I going? This involves answers to questions about what happens after death, in the afterlife, and how to prepare for that. 3. What is my purpose? Why am I here? What is my purpose in life? Why was I born and what am I here to do? 4. Who am I? Who are we as a people? Where did we come from? Where are we going? Why are we here? Who are we as Ojibwe people? How are we different from others? What makes us unique? What will we need to continue into the future? The Indian Act should never be part of the relationship. It was how Canada defined Indigenous people, not who Indigenous people were or are. Who Indigenous people are is included in and passed down through their teachings. Residential schools and public schools have spent a lot of time and effort to prevent Indigenous people from learning the answers to these questions. He noted there may be resistance to efforts by Indigenous peoples to re-indigenize their nations, communities and selves by those who have deeply adopted Christianity and see as an anathema anything Christian teachings tell them is heathenism / paganism. Though we need to be respectful of them, Indigenous leaders still must proceed with reclaiming their Indigenous ways. 8

9 The Subsidiarity Approach Former RCAP Commissioner Paul Chartrand discussed the concept of subsidiarity 1 as a helpful way to position how we think about the Nation-to-Nation relationship. The concept of subsidiarity is an idea that seeks to balance solidarity with autonomy. It asks not who has the power to do x, but who should do x. The essential idea of subsidiarity is that one should never entrust anything to a bigger entity that can be best done by a smaller entity and that decision making should happen as close to the citizen as is appropriate for the circumstance. Under subsidiarity, central authorities are allocated decisions that transcend local impacts. In these cases, efficiency and appropriateness determine which are higher-level decisions. Everyone is presumed to know best how to govern his or her own life. Each person can navigate his or her values, preferences, life plans and trade-offs. This can be generalized to institutions. Subsidiarity also contains the idea that family members, or those close to one another, know each other better than strangers and that members of a local community are more likely acquainted with the shared values of their neighbours and are better placed to decide on shared governance than an outside or distant entity. Subsidiarity helps eliminate disputes over who has authority, by shifting the question to who should do what. Subsidiarity looks at task allocation rather than the traditional approach of the division of power. Under subsidiarity, power is joint and concurrent. The onus is on the dominant party to make the case for decision making to be in its hands on particular issues. Chartrand argues that subsidiarity makes Canadian-Indigenous disputes about jurisdiction unnecessary, through maximizing opportunities for Indigenous self-governance. The European Union (EU) is a good case study for subsidiarity. It is one of the most powerful political and economic entities in the world, operating on the basis of treaty relationships. When you look closely at what binds the EU together, you find the concept of subsidiarity, with its values of deliberation and agreement replacing dispute. This model is worth considering in self-government negotiations and establishing Nation-to-Nation relationships. Subsidiarity is the expression of a complex relationship of autonomy and solidarity that can claim universality in federal systems or an international order. The Maastricht Treaty has enabled a flexible accommodating system of power, based on subsidiarity, to tie action in the EU by efficiency and necessity. Jurisdiction over Taxation & Revenue Sharing Harold Calla of the First Nations Financial Management Board expressed that the key to Indigenous peoples gaining jurisdiction over their own affairs is to articulate and define their vision, to say what it is they want to achieve as opposed to waiting for others to give it to them. It is critical to have this attitude to develop and claim our own jurisdiction as Indigenous peoples. He acknowledged the 12-month fiscal cycle of Indian Affairs is not an adequate basis for Indigenous governments to operate on, thus both a Nation-to-Nation relationship and the exercise of jurisdiction requires Indigenous peoples have jurisdiction over taxation and revenue sharing. The cost of closing the service and infrastructure gap between First Nations and other communities is too great for the federal government alone, which is why First Nations need access to capital markets. Canada has an important role to play in 1 Professor Chartrand noted a research paper by Professor Hugeland in 1983, which discussed the concept of subsidiarity in international human rights law. The concept has been used in relation to Aboriginal governance in Australia. Yet, in Canada, the concept has been little discussed. Recently, however, the concept has been making its way into constitutional law, in discussion of division of powers and interjurisdictional community in the 2014 Tsilquot in and Keewatin SCC cases, for example. 9

10 investing in First Nations economic development and ability to access debt and equity for things like infrastructure to help economic and social development. Canada must develop the legislative framework in order to develop certainty so Indigenous jurisdiction can be applied without undue economic risk. He noted that it has been demonstrated through the FNHA and Indigenous-run education that Indigenous people are much better at delivering programs for Indigenous people. He called on Canada and the provinces/territories to develop a transition mechanism for jurisdictional transfer. Calla stated that until Indigenous and Northern Affairs Canada is out of the picture, the conflict at the heart of the Nation-to-Nation relationship cannot be overcome. Dave Joe, O.C. called for the ability for self-governing Yukon First Nations to tax not only treaty lands but to tax their citizens as well. Many Yukon First Nations citizens gravitate to cities and their income tax is paid to Canada and the Yukon, whereas First Nations governments are left out. This fiscal arrangement would also help to better meet the needs of Yukon First Nation citizens wherever they live. Building Institutions President of the Institute on Governance, Maryantonett Flumian, suggested that the Royal Proclamation, the Constitution, and the Courts have provided more space for the exercise of jurisdiction than Indigenous peoples have currently taken up and Indigenous peoples should set to task in building their institutions and governance to move past the Indian Act, which should no longer exist. Frameworks and institutions will need to be built by Indigenous governments and sometimes recognized and fiscally supported by Canada. She affirmed the need for Indigenous civil service(s) to create institutional continuity within communities and to create the skill set in a new generation of indigenous leadership to manage their communities and nations affairs. Harold Calla also advocated for First Nations building national institutions, developing their own bureaucracy, civil service and central agencies. Many communities are starved for information and do not have the capacity or resources to undertake many types of activities. National institutions are one way First Nations can expand their exercise of jurisdiction. Jurisdiction in Practice 3 Core Areas of Governance Michael Hudson, who leads the Justice Canada task force on constitutional relations with Indigenous people, clearly stated that the days of thinking Indigenous governance stems from the Crown and is delegated to Indigenous peoples, are over. The Canadian Constitution acknowledges that pre-colonial Indigenous governments have survived. Though Indigenous sovereignty has been reduced, denied and suppressed over the past 150 years, it has survived and is reanimating across the country in different ways. The challenge for government is to create the space for and support Indigenous governance. He offered his observations on three core areas of governance: 10

11 1. Legitimacy Governing institutions are as valid as their citizens regard them. This is especially true of Indigenous governments because of colonial history. This has created a lot of different voices. Many potential partners wonder how they can tell what is a nation. The key is to have coherent consistent First Nations government voices with legitimacy in the eyes of their people. That legitimacy requires other entities to regard a nation as a legitimate representative of its people. Good governance is a universal value. There are many different ways humanity organizes itself in social and governance structures, but at the root is legitimacy. The Organization for Economic Cooperation and Development says it is the exercise of economic and political authority necessary to manage a nation s affairs. If you have that in the eyes of your citizens, you are a on your way there. 2. Economy Hudson noted an Indigenous leader who said I don t want the power to govern my own poverty. He cautioned that a nation could have the best governance structure possible, but it will not mean much if there is no economy for its people. Access to financial resources will typically require strong governance controls. He advised nations to be business-minded and practical in building prosperity for their people. 3. Intergovernmental relations Finally, Indigenous governments do not exist in isolation. There is a complex set of governments and agencies. The Canadian situation is unique: we are a collection of collectivities in a way that Australia and other countries are not. 4 Categories of Jurisdiction Dave Joe, O.C., former Chief Negotiator for the Council of Yukon First Nations, discussed four categories of jurisdiction relevant to First Nations intergovernmental relationships: 1. An Indigenous nation has the exclusive authority to regulate (e.g. harvesting within the territory covered in a treaty) and allocate fiscal resources. 2. An Indigenous nation has paramount concurrent authority with Yukon laws over matters dealing with its citizens, such as health, education, culture, spiritual belief. This power is not confined to treaty lands or traditional territory, but is applicable throughout the Yukon. In the case of a conflict, the Indigenous nation s laws are paramount. 3. An Indigenous nation has paramount concurrent authority with the Yukon territorial government with regard to the body of rights centred on treaty lands, all those laws passed dealing with lands, resources and gaming are paramount concurrent. There are some residual paramountcy issues with Canada, as treaty land rights may involve infringements on criminal and other federal laws. 4. Shared power, where an Indigenous nation shares in tax revenue. Even on treaty lands, Canada and the provinces/territories are likely to continue collecting taxes from treaty members. Dave Joe stressed the importance of building capacity for governance and jurisdiction, by identifying the structure you want and how you will resource that governance process, including what stable funding can be counted on. He noted that Canada committed to financial transfers in their agreement, however the amount is always in question. 11

12 Dave Joe also recommended that nations think about how to enforce the laws they adopt. He advised considering a process to adopt a tribal court, which can adjudicate on Indigenous, Canadian and provincial/territorial laws as long as there is some sort of agreement, and not to use the mainstream courts. Consultation also remains an ongoing issue, as Canada continues to view the north as a resource basket for its own use and access and continues to operate with terra nullius assumptions. Now the Council of Yukon First Nations (CYFN) have built into the treaty process that consultation must occur when resource projects are being considered that could impact their territory. The CYFN also built in review and amendment processes for self-government and treaty agreements. Finally, the CYFN always ensures its people are elected to the Yukon legislature, in order to have people in power with greater responsiveness to their views and concerns. Restoring Hereditary Governance & Jurisdiction Peter Lantin is the President of the Council of the Haida Nation (CHN) noted that for over 40 years, the Haida have been working to revitalize their culture. After smallpox and serious population loss, the Haida s jurisdiction remains rooted in the fact that their culture survived. Before contact, the Haida didn t talk about jurisdiction in the same way we would today. From mountaintop to sea floor, all was Haida territory. But with smallpox and the introduction of reserves, the Haida were pushed into a mere 1,600 hectares. And the people went from living a vibrant culture to living under the Indian Act surrounded by heavy resource extraction from which they did not benefit, nor were they consulted. In 1974, Chiefs and elders founded the CHN to find a way to deal with the land claims issue and regain control over what was left. Everything changed in 1985, when the Haida mobilized its warriors to stop clear-cutting on Lyell Island. This stand led to the agreement that Gwaii Haanas would remain in its natural state in perpetuity, with the CHN and Canada agreeing to disagree on the title question but agree on protecting Gwaii Haanas (Canada calls it a park and the Haida call it a Haida heritage site). Next, the Haida developed their constitution to set up their government. There were a number of internal overlaps of different clans that needed to be resolved through the Haida Accord. All the hereditary leaders agreed with unifying to solve the land claims issue. They put their traditional territories in a collective pot together. Now the Haida Constitution has evolved to support a mature governing body representing all its citizens, including all those who had previously lost their status. Built within the CHN are two band councils. They still exist and have fiscal arrangements with the Crown and provide services to communities. The goal of the Haida Nation is full independence, sovereignty and peaceful coexistence. The CHN isn t a band council, nor a society or corporation. It has no legal basis in Canadian law. The Haida have signed a reconciliation accord with BC and created the Haida Gwaii Management Council through that accord, which jointly manages land use decisions, such as defining sustainable logging and allowable cut. They are currently working on a similar arrangement for marine resources. The CHN is in court with Canada and BC now over who has title to Haida Gwaii. In the meantime, the Haida are managing forestry cut blocks and fishing lodges for economic development. The Haida are asserting themselves over their territory. They banned oil tankers in their territory going back to 2008, and, along with others along the coast defeated the Enbridge Northern Gateway pipeline. They signed a peace treaty with their neighbours the Heiltsuk Nation. Next steps include enforcement as well as restoring hereditary governance. 12

13 The Haida look at citizenship on a hereditary baseline. If one is truly Haida, he or she should be able to link to that. Lantin noted that in the age of social media it is easier than ever to find out who is out there. Exercising Jurisdiction The first treaty of North America was the Two Row Wampum treaty between the Dutch, Germans, Haudonosaunee, Mohwaks, Senecas, Onadagas, and later the Six Nations. The Two Row Wampum, a belt with two rows, depicts a ship (symbolizing the European way of life) and a canoe (symbolizing the Indigenous way of life) traveling side by side as allies. This is how the nation-to-nation relationship is depicted through treaty. With regard to traditional governance, prior to the Indian Act, women of the same clan would get together and watch babies grow up, learning who would be a good provider, a man of truth, someone who would be a good leader. When an existing leader passed away, a new one would be selected. The nation knew when the women selected him he would be a good leader. One such leader, Mike Mitchell the former Grand Chief of the Akwasasne discussed how Akwasasne came to exercise jurisdiction on the mighty St. Lawrence River, where they fished. Quebec and Ontario conservation officers were arresting people from Akwasasne for fishing. They wanted them to buy into provincial fishing licences but the Akwasasne would not do so, so the conservation officers took their boats and motors. They told us the Akwasasne they did not have any jurisdiction of their own. In response to continued arrests and confiscation of boats Chief Mitchell asked why it was the Akwasasne did not control the river. He approached Ontario and Quebec and informed them he wanted his people patrolling the river; they said no. So, the Akwasasne concluded they needed to make a law reflecting their responsibility for animal and fish life and the waters and the land. Within one month they produced a Mohawk nation law on conservation. INAC tried to strip it down and sent it back to them several times, but the Akwasasne told them that was ultra vires. Chief Mitchell went to the Grand Council at Onadoga who adopted the law. Sectoral Jurisdiction Wayne Christian, Tribal Chief for the Shuswap Nation Tribal Council, spoke about the Shuswap Nation s approach to children and families, beginning with the unfinished business of confederation and the legacy of colonial policy. In the early 1980s, the Shuswap Nation turned to its knowledge keepers and elders and asked, after the 1960s scoop and ongoing child apprehension, how they looked after themselves before the Indian Act and other colonial laws. There was a Shuswap judicial system, police, jails and other ways of monitoring and looking after themselves. In 1980 the Shuswap codified those principles into contemporary Shuswap Nation law. Their jurisdiction does not end on reserve, and 36 years later, they know every Shuswap child that has been born since The Shuswap have jurisdiction notwithstanding residency and go into state, tribal and provincial courts to represent their children and bring them home 2. Their program approach is community-driven and nation-based. 2 In October 2015, they issued a constitutional challenge against the provincial government s jurisdiction over their children. They have currently put that challenge on hold as they work on a Memorandum of Understanding with the province. 13

14 He noted he has just finished working on a four-year project with the University of Victoria Faculty of law to document oral stories, to translate those into law. Shuswap law is embedded in their language. Language is the web of the way they do everything. Over the past nine months, of Shuswap membership has been consulted about what they see as a Nation-to-Nation relationship. Having been on this land for thousands of years, they said they wanted a living agreement, not a final agreement. They want recognition of their rights, respect and reciprocal accountability. Restoring Nationhood Sophie Pierre, former Chief Commissioner of the BC Treaty Commission and of the Ktunaxa Nation, described how her Nation has united and no longer presents itself as individual bands or First Nations when dealing with external actors like industry. The Ktunaxa Nation is made up of 4 Ktunaxa communities and one mixed community, with their nation divided by the 49 th parallel. Each community has governing structures that work under the Indian Act model. They entered the treaty process in 1993 in the hope of moving past the Indian Act model, and have started focusing on key activities they want to take over outside of the Indian Act model as they now have as much delegation jurisdiction as possible within the existing system. The Ktunaxa Nation has exclusive authority for all Ktunaxa children within Canada, as well as authority on land use decision-making, having entered into agreements to that effect with the federal and provincial government through the BC Treaty process. Mining companies, for example know not to approach the closest Indian reserve, but go directly to the Nation government to do business and build relationships. A key challenge to nation building people recognized that no one else could tell them who they were or take their identity away from them unless they let them. The Ktunaxa Nation continues to deal with the realities of socio-economic gaps and the intergenerational impact of residential schools and colonial policies. They were very strong before these efforts to dwindle their authority. They are now rebuilding. A key part of this rebuilding is also reestablishing relationships with neighbouring nations. She noted that, in 1974, Wilfred Jacobs, a Ktunaxa leader, said what the Ktunaxa needed to do first and foremost was re-establish relationships with their neighbouring nations and let them know what they were planning to do as Ktunaxa but how they, as neighbours, could continue to support each other. Most often, when the Ktunaxa are talking about Nation-to-Nation relationships, they are not immediately thinking about the relationship with the federal government but with other Indigenous nations. This work of nation rebuilding has been happening in the Ktunaxa Nation for over a generation. For nations to be rebuilt, their people and leaders need to think like a nation and act like a nation. 14

15 First Nation Authority and Decision Making Exercising Customary Laws Heiltsuk Tribal Council is elected and works very closely with the traditional chiefs that hold the title to their territory. They have had a closely collaborative relationship over 15 years and are stronger as a Nation for it, carrying the full strength of their people working together in that way. The Heiltsuk Nation has worked on developing its administrative capacity, its legal and political mobilization and negotiating agreements and partnerships. The recently created Heiltsuk Integrated Resource Management Department is integral to the Heiltsuk s stewardship strategy and efforts. Heiltsuk Nation Chief Councillor Marilyn Slett spoke about her Nation s response to the diesel spill from the Nathan E. Stewart tugboat that ran aground in Seaforth Channel in She discussed the accident noting that exercising sovereignty in a time of a disaster was essential to maintaining the Heiltsuk Nation s Aboriginal rights as a self-governing nation. The tugboat spilled significant quantities of diesel, leading to a number of fisheries closures by DFO, including the bivalve fishery in Area 7, which remains in effect today. The Heiltsuk Nation has issued a broader fisheries closure notice to the community to ensure safety. Overall, with regard to the oil spill and actions leading up to it, that there was no consultation with the Heiltsuk. There has been a consistent failure on Canada s part to disclose vital information to the Heiltsuk, thus they have made complaints to Transport Canada regarding access to information and were denied that information and most recently, the Transport Safety Board declined to engage in preparing a joint investigation protocol with the Heiltsuk. As such, the Heiltsuk Nation decided to engage its own contractor to conduct an investigation and decided to pursue adjudication as an exercise in sovereignty and to ensure that their Gvi ilás (customary laws that embody values, beliefs, teaching and consequences) apply to their traditional territories and to all people within those territories. Heiltsuk s investigation report will go to a six-person adjudication committee who will determine whether there has been a violation of the Heiltsuk s traditional laws and prepare a written decision. The report and adjudication are stand-alone actions by the Heiltsuk Nation in accordance with the Heiltsuk s Gvi ilás. Both the report and the adjudication demonstrate Heiltsuk s capacity and commitment to govern their territory and take a lead role in investigating and deciding about incidents in their territory. Both demonstrate that Heiltsuk will hold governments and polluters accountable for their actions. Heiltsuk have had to bear these and other costs associated with dealing with the diesel spill, but it was important for the Heiltsuk to ensure the process was being managed properly as an expression of their sovereignty. More recently, the Heiltsuk has entered a framework agreement with Canada on reconciliation, as a pathway for negotiations. This is not a treaty negotiation, but an exploratory process. The Heiltsuk are looking at incremental agreements that support their agenda moving forward. 15

16 Vesting of Jurisdiction Roger William, Chief of the Xeni Gwetin and Vice Chair of the Tsilqot in National Government, spoke of the 1989 Tsilqot in Declaration of Elders, stating that nothing will happen on Tsilqot in territory without their involvement. In 1991, people were charged range fees by the provincial government for holding cattle and horses on Tsilqot in territory. The Tsilqot in were also being told they were keeping too many wild horses. The Tsilqot in arranged for the Stein Valley Stockman s Association to pay the Tsilqot in range fees. The Tsilqot in let the provincial government know it had no jurisdiction to impose range fees on their land, and that any range fees would be paid to the Tsilqot in. After all the colonial impacts, the fact remains that Tsilqot in jurisdiction rests in the Tsilqot in people. William called on Indigenous peoples to own what they do; not to blame INAC, BC, logging companies or other actors, but to rebuild their nations and claim their own jurisdiction. First Nations have to restore their languages, land use and cultural practices. If other actors want to keep using Indigenous lands, they will have to pay for it. Exercising jurisdiction means owning it. It means working through the difficult challenges, like drugs, alcohol and gangs. It means supporting your people going through university. It means fighting for revenue sharing. It means fighting for Indigenous history to be taught in schools, both to Indigenous people and Canadians. Community Driven, Nation Based Grand Chief Doug Kelly, Tribal Chief of the Sto:lo Tribal Council and Chair of the BC First Nations Health Council (FNHC) spoke on governance, the wellness model of health care, and the First Nations Health Authority (FNHA) changing outcomes. With the FNHA, and the tripartite table for shared decision-making, First Nations make sure to partner at every decision-making level with the provincial and federal government or their affiliated agencies. There are no longer any health-related decisions about BC First Nations without their involvement. The FNHA is based on the simple guiding principles that program and service decisions should be community-driven and nation-based. Those who have to live with the decisions should be central in making them. This is heavy work. It does not matter how well-intentioned the federal government may be, they cannot make these changes on their own. We need to work together, with all of the parties. This means increased support for First Nations capacity. Those affected need the resources to be active players in decisions. This work begins with individual self-determination. Each individual needs to be responsible. He called on First Nations to own their part of the problem and for federal and provincial governments to get out of the way and not to obstruct a community that has its own plan for change. While there is still much to be worked out in the negotiation of relationships on social determinants of health, the tripartite parties are now making significant progress in expanding the FNHA model to the broader social determinants of health. The partnerships that BC First Nations have with the federal and provincial governments around social determinants will help improve outcomes in all areas of wellbeing and will involve shared decision-making and reciprocal accountability. 16

17 Intergovernmental Relationships Marc LeClair, Chief Negotiator for the Metis National Council, described his involvement in the Section 37 constitutional conferences in the 1980s and noted that in the days of the constitutional conventions, it was important for the Métis to not only have their full box of rights recognized, but to enter into a Métis Nation accord with the federal government and the provinces of BC and Ontario to clarify what things would look like if the Métis were to become included under Section 91(24), which has now been accomplished in the courts. However, there has not been an intergovernmental dialogue on defining Indigenous rights in the Constitution since Charlottetown. A key priority for the Métis Nation is to constitutionalize funding. The federal and provincial/territorial governments collect taxes from Métis Nation members, which should go to the Métis Nation. They are hoping for a new approach with the current Prime Minister. The Métis are now more integrated in the intergovernmental process and meet annually with the Premiers. On intergovernmental relationships, Scott Serson, the former Deputy Minister of INAC, noted that he was often frustrated by the transitory nature of intergovernmental relationships. He saw that while the Minister and Prime Minister were interested in an issue, support for that issue would flourish and then halt abruptly when their interest shifted elsewhere. This was quite frustrating for the public service when dealing with the important issues on the table, and commitments by the federal government to regular meetings between the leaders of the three Indigenous nations and the PM and key Ministers are important. Stephen Kakfwi suggested the priority in intergovernmental relationships has been to strive for equality in conditions of inequality. Intergovernmental relations also present a forum for reconciliation and can be used to correct injustices in laws and policies. In his experience, the Dene saw the need for better resources for their communities, particularly for housing and schools, and better relationships with the Government of Northwest Territories (GNWT) as key to achieving that. Years later, the wisdom of the Dene Chiefs is self-evident. The majority of the Premiers of the NWT have been Dene and the majority of ministers in Cabinet have been Indigenous. Though they do not always get along or agree, they know each other and that is critical for ensuring Dene rights are best represented in the territorial legislature. Role of Municipal Jurisdictions Ginger Gosnell-Myers, the Aboriginal Relations Manager for the City of Vancouver, spoke to the many ways wherein cities as places to exercise Indigenous jurisdiction or as partners in the exercise of jurisdiction. The City of Vancouver is leading the way in this area. When the Truth and Reconciliation Commission of Canada (TRC) was travelling and collecting testimony in 2013, the City of Vancouver advocated for a TRC hearing to be held in Vancouver. Reconciliation Canada organized the Walk for Reconciliation, attended by 70,000 people showing support for reconciliation. The City then declared the Year of Reconciliation. Staff then identified 30 programs and projects to help deliver to enhance relationships between the City and Indigenous peoples. Vancouver City Council then endorsed UNDRIP. Acknowledging that Reconciliation is not the act of one year, but a long-term act of multiple generations, the City decided to become a City of Reconciliation and embed reconciliation into the work it does as a municipality. That could not be done without first recognizing that Vancouver is located on unceded territories. The City of Vancouver became the first government in Canada to officially recognize it is operating on unceded territories. All city meetings start with recognition of unceded territories. She acknowledged the leadership of 17