Analysts say Indian Affairs has hidden agenda

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Several consultants employed to advise First Nations chiefs on political matters have taken a look at one of the many documents that have been leaked from the Department of Indian Affairs in recent months-and raised an alarm.

Canada's Approach for Dealing with Section 35 Rights: Ministerial Recommendations to Cabinet-November 24, 2000 is unanimously viewed by these government watchers as an indication the department is scheming to erase or minimize Aboriginal rights protected by Section 35 of the Constitution.

An unusually high number of confidential documents have been leaked from inside the Department of Indian Affairs in recent months. One well placed source, who asked not to be named, explained the leaks by saying the minister has departed drastically from the approach of his predecessor in the portfolio, Jane Stewart, causing a rift between the minister and senior department staff. In a recent interview with Canadian Press reporter Sue Bailey, the minister criticized some of his staff, saying they've become "too cozy" with First Nation leaders.

Walter Rudnicki, an Ottawa analyst who worked in government for many years, now advises chiefs and tribal organizations. He told Windspeaker that the Section 35 document is a sign the aims of the 1969 White Paper on Indian Affairs are still very much on the government's mind.

"A broad frontal attack on Aboriginal and treaty rights has required that the government neutralize Section 91 (24) of the Constitution Act, 1867 and Sections 35 and 25 of the Constitution Act, 1982," he wrote in a 21-page analysis he submitted to this publication.

He enclosed copies of government memos and letters, some dating back to the 1970s, that show government officials have not abandoned the idea of the White Paper, but have learned a direct approach simply creates a Native backlash.

"They've just taken it underground," Rudnicki said.

An example of the government's new approach to Section 35 is to get a First Nation to a potential self government agreement and to waive the constitutional protection or agree to not exercise it. It's called "the non-assertion/fall-back release technique" in government documents. That approach was mentioned in an internal document dealing with the Dogrib self government agreement.

Asked about this approach during an interview on April 18, Indian Affairs Minister Robert Nault said the draft did not have his signature on it and therefore was of little importance.

"I haven't been to Cabinet about Dogrib. That's the unfortunate thing about drafts and leaks that come out of departments. When that leak came out, I hadn't seen it. I just saw a draft two days ago, sent it back with a whole pile of changes that I didn't agree [with] and I'll be meeting with the officials to talk about it," he said. "So people see these things or they're leaked, it's very difficult for me to comment on because most of the time they come out of the bowels of the department and I haven't even seen them. We are certainly looking at commitments to arrive at certainty models. I have given that commitment at the Summit in British Columbia. We're not willing or interested in extinguishment, anymore. I've made it very clear our policy does not include extinguishment."

But Rudnicki and others don't believe it. Rudnicki's experience in government leads him to believe the government is willing to go to great lengths to erase or minimize the troubling political problem created for a government when a minority claims special rights.

Montreal lawyer Paul Joffe wrote an analysis of the Section 35 document for the Assembly of First Nations.

Joffe concluded that a "principled approach" to dealings involving First Nations and government is needed. He suggests that all parties should agree what basic terms mean so there can be no misunderstanding or intentional misleading, a tactic Native leaders often accuse government officials of employing.

Rudnicki reached the same conclusion.

"The federl government deliberately misuses terms such as 'governance' to mislead people about what they are actually talking about," Rudnicki wrote. "There is a world of difference between real government and local functions that are delegated by a real government. When the minister talks of bringing First Nations to the promised land by making them 'self-governing,' one could conclude that he is using a definition of governance found in various legal dictionaries."

He said First Nations would hear in the word governance what the Dictionary of English Law defines as "that form of fundamental principles by which a nation or state is governed."

He suggests the minister is using the entirely different definition found in the Dictionary of Canadian Law, which defines governance as, "the government of Canada or of any province and includes any commission, board of branch of such government."

The two definitions lead the two parties to two completely different understandings of what is being discussed, Rudnicki argues, and it is often much too late when a First Nation comes to appreciate the seriousness of the misunderstanding.

Joffe recommends a nation-wide agreement on the meaning of key terms.

"Often, individual First Nations do not have the human and financial resources-or perhaps the political leverage-to negotiate an adequate framework," he wrote. "In the absence of a principled framework, there may be few, if any, common reference points by which to measure any federal or other government proposals."

Joffe believes the most fundamental term that needs to be defined is "peoples." People is the plural of person, whereas peoples (with an 's') are national groups. Finns or Russians or Ukrainians are peoples and are recognized as distinct national groups. The federal government refuses to recognize Indigenous nations as peoples (with the 's') because under international law peoples have the right to self-determination. Mohawks, Crees and others insist they are peoples i the international sense, but Canada has so far refused to recognize that claim.

"It is no coincidence," Joffe wrote, "that the [leaked Section 35 document] generally [did] not refer to Aboriginal peoples as 'peoples.' Instead, terms such as 'Aboriginal groups' or 'Aboriginal people' are used. However, since [the leaked document] deals with Section 35 rights and Section 35 of the Constitution Act, 1982 refers to 'Aboriginal peoples,' surely the federal government should use the same term."

After reading the government document, Joffe comes to the conclusion that federal bureaucrats are more concerned with finding ways to preserve the federal position as the highest governmental authority than in embracing the spirit of at least two Supreme Court of Canada decisions.

"In examining existing or new techniques of the federal government in relation to Section 35 rights, it would be most difficult to conclude that the perspectives of First Nations are being considered equally with those of others," he wrote. "However, [former] Chief Justice Lamer has ruled in Van der Peet and reiterated in Delgamuukw that 'the only fair and just reconciliation is . . . one which takes into account the Aboriginal perspective while at the same time taking into account the perspective of the common law. True reconciliation will, equally, place weight on each.'"

Joffe reminded his client that Aboriginal rights are seen internationally as human rights. When the government seeks "certainty" or "finality" regarding Indigenous peoples rights to their unceded traditional territories, they are seeking to extinguish human rights that are protected in international conventions as well as in Section 35 of the Constitution. He adds that human rights-such as the right to be free from persecution or from imprisonment without due process or arbitrary execution-are not subject to extinguishment.

Joffe said it is "dishonest on the part of the federal government to refuse to carry out a national consulation on its proposed new technique since it could have far-reaching impacts on the rights of any First Nation affected. Instead the government intends to wait until a Dogrib agreement is finalized before announcing that this new technique has been approved by the federal Cabinet."

Mike Myers, an analyst working for Northern Ontario Grand Chief Lawrence Martin, also wrote a paper on the Section 35 document. Myers believes the government is trying to separate land rights (recognized in the Delgamuukw decision) from other Aboriginal rights. He points out that "certainty" and "finality" are the government's goal with regard to land rights, while "predictability" and "manageability" are required for other rights.

He said the federal plan is to get First Nations to agree that all rights they will ever assert are contained in any agreement. Therefore, any future court decision that recognizes Aboriginal rights that have not yet emerged from the colonial warehouse where they've been laying dormant, cannot ever be asserted. Further, Canada can- and does-dictate what rights can be included in an agreement and which rights can't.

"What we have been struggling with is this Canadian-defined farce called self government which bears no resemblance to political self-determination," Myers wrote. "An Elder once characterized the self government process as one of 'negotiating the length of the leash.' This position is also designed to keep two key issues off the table: they are sovereignty and economic self-determination. Ever since Trudeau declared these issues 'non-starters' during the first round of constitutional talks, it has remained Canada's position that they will not discuss these issues in any form. We can absolutely count on them not being on Canada's list of acceptable negotiation items."