Saulteau First Nation Negotiation Protocol 2008 Kawaskimhon Moot Submitted by: BUCKSKIN, BUCKSKIN & BROWN LLP Our client wishes to invoke the Indigenous Legal Order ( ILO ) of the Saulteau First Nations ( SFN ) at the 2008 Kawaskimhon Moot negotiations. What follows is a framework for applying the ILO of the SFN for negotiations between neighbouring Nations and other Parties. The SFN recognizes that respect for Indigenous knowledge, cultures and traditional practices contribute to healthy and equitable social and political development and proper stewardship of the environment. Principles to Guide Negotiations 1 Unity Indigenous Nations need to work together to overcome generations of colonization and assimilation. We must recognize that Indigenous Nations have suffered from historic injustices resulting from colonization and dispossession of their lands, territories and resources, this prevents them exercising their right to thrive in accordance with their own needs and interests. Creator s Covenant Creator has provided our Indigenous Nations with the relationship of dynamic Nations, families and ecologies that serve to offer Teachings and jurisprudence; which guides our Elders. 2 It is from the Teachings that negotiations will be based from. Elders 1 Adapted from the Treaty 8 Tribal Association. <online> http://www.treaty8.bc.ca/negotiations/about/ 2 J.Y. Henderson. First Nations Jurisprudence and Aboriginal Rights:Defining the Just Society. Native Law Centre, University of Saskatchewan. 2006. 1
Our teachers and wisdom-keepers need to be involved to provide direction. An Elders Council that oversees the Negotiations should be established, with representatives from each Nation. Our Elders have spent their lifetime meditating, studying and living the way of life required to understand our ILO in which Treaty 8 is rooted. Through their study their physical and spiritual beings are bound to Mother Earth which creates a connectedness to the Creator and his creation. Treaty/Rights-based Approach Treaty 8 s promise of Peace and Sharing has been broken. The Treaty must be upheld and honoured as the sacred document that it is. The Treaty Rights of the SFN must be respected in all aspects of negotiations. Youth SFN youth must be involved so that the ILO s can be witnessed by the youth. This will assist in ensuring knowledge transfer through the generations. In addition, the youth will have an opportunity to engage and learn from the experience of the leaders and Elders involved. This recognizes the responsibility for the upbringing, training and education of the youth by the Elders and leaders. Leadership The SFN leaders welcome the opportunity to collaborate with other Nations and Parties in order to secure positive outcomes for all involved. The leaders must heed the voices of the Elders and youth. The leaders are the ones that need to work out the issues. Roles and Responsibilities Having Councils of community members oversee the negotiation process will instil confidence and trust in those charged with negotiating the issues at play. The leaders will be constantly 2
accountable to the community via the Councils by both receiving advice and guidance from Council members as well as reporting back to the Council on the progression of negotiations. Elders Council Four Elders from each Nation will asked to participate in the Council. It is recommended that gender parity should occur in relation to the Elder representatives. Youth Council Four youth from each Nation will be invited to participate and oversee negotiations. Gender parity should also occur for the Youth Council. Women s Council Four women from each Nation will be selected to sit on the Council by women from their respective Nations. While the Elders and Youth Councils will ideally have gender parity, the distinct voices of the women and Clan mothers is essential to the decision-making process. Furthermore, the inclusion of a separate Women s Council is an acknowledgment that sexism is still an unsolved problem that our Nations are committed to solving. The Host Nation The Host Nation will be expected to conduct a welcoming into their community. In addition, the Host will be expected also to facilitate ceremonies on an as needed basis with the option of deferring ceremony to a guest Elder or Nation. As per Indigenous custom, the Host will be expected to feed and accommodate guests into their territory. Neutral locations will require each Nation to be responsible for their own responsibilities in relation to ceremony, housing and food. 3
Process The discussions will occur through the following processes: i) Fact-finding, being the review of the claim overlap by the Parties with oversight provided by the Elders, Youth, and Women s Councils. All relevant facts bearing on the issue will be determined. ii) Once the facts are agreed upon or acknowledged, discussions on how the claim overlap can be resolved. The Nations and other Parties will reconcile their positions to the extent possible through consensus to resolve the issue. We interpret consensusbuilding as the process by which Parties come to one mind. 3 We expect all Parties to be amenable to compromise and participate with the best interests of future generations in mind. We model our own negotiation strategy after our Haudenosaunee sisters and brothers who deliberately considered the positions of each Party individually before approaching another Party thereby building the consensus from two Parties to many. 4 iii) If consensus cannot be achieved, then the issues are discussed in front of the Elders Council, who will serve as arbitrators. The Elders Council will make a decision on how consensus should be achieved. Redress Any Party who suffers loss will be entitled to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources that which they have traditionally owned or otherwise occupied or used, and which have been taken, occupied used or damaged without their free, prior and informed consent. 3 From Haudenosaunee, Kahnawake Branch of the Mohawk Nation at http://www.kahnawakelonghouse.com/index.php?mid=1. 4 Adapted from Ibid. 4
Furthermore, non-pecuniary redress will be essential to the maintenance of healthy relationships and all parties shall have the opportunity to voice their needs for alternative compensation. The Negotiation Position of the SFN The SFN has 3 positions that are not open to negotiation: 1) That the negotiation process rely solely on the traditions, laws, and solemn promises of the Indigenous Nations involved and that Canadian law be explicitly excluded from all aspects of the negotiation; and, 2) That the disputed overlap territory be excluded from the BCTC process; 3) That no unsustainable development occur on the disputed overlap territory. Our 4 main priorities in this negotiation are: 1) Decision-making power We are interested in creating a system whereby all Parties have access to the power and resources necessary to participate in the decisionmaking process when there are issues at hand that implicate their territories, rights (as Indigenous peoples, not in the Canadian sense), and our general well-being 2) Resources We are opposed to development and extraction of resources that is not truly sustainable and are interested in reconciling other Parties interests in the best interest of responsible stewardship of the land. 3) Territories and Land We are in favour of a solution that allows for sharing and the most number of people to earn a sustainable livelihood from the land. 4) Community We are committed to reinvigorating and strengthening our relationships with our neighbours. We wish for this to be done throughout the process as well as being reflected in any Final Agreement that is reached. 5