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Crown-Delegated Institutions


Introduction:


The Crown creates Crown-Delegated Institutions to replace pre-existing sovereign Indigenous political, social and economic institutions. This allows the Crown to assimilate Indigenous lands, resources and peoples. The Crown does this by creating Crown-Delegated Jurisdictions that function to respect an alternate rights regime. This alternate rights regime contains Crown granted rights that replace sovereign Indigenous Immemorial rights.


Crown-Delegated Institutions with their alternate rights regime prevent the development of modern Indigenous political, social and economic societal institutions under the international right to self-determination.


1. Crown-Delegated Jurisdiction:


The Government of Canada delegates authority and jurisdiction to organizations to empower them to function as part of Canada’s infrastructure (Crown corporations, health and education authorities, environmental assessment boards, human rights commissions, and etc.). When the Crown delegates authority, with it comes the sphere over which the jurisdiction of that authority extends. The Crown’s authority replaces all other authority (jurisdictions) within the sphere of authority creating a Crown-Delegated Jurisdiction.


Crown-Delegated Jurisdictions are created through varied combinations of legislation, signed agreements, and funding contributions. They give authority to a group or organization to engage in a defined activity. The use of the Crown’s authority in the organization is controlled by terms laid out in the legislation, bilateral agreements, and contribution agreements that were used to create the Crown-Delegated Jurisdiction. Let it be clear, these organizations become an extension of the Crown and its government in Canada.


The Crown creates Crown-Delegated Jurisdictions with authority over Indigenous lands, resources, or peoples through section 91(24) of the Constitution Act. Indigenous communities and organizations often exercise authority that has been delegated to them by the Crown. To receive Crown-delegated authority, changes are mandated within the Indigenous organization replacing laws, policies, and practices previously used by the organization under the authority of Indigenous sovereignty.1 The new Crown-Delegated Jurisdiction in the Indigenous organization replaces its Inherent Jurisdiction counterpart to effectively assimilate the sovereign Indigenous version of the organization. The resulting indigenous organization no longer retains its Immemorial rights base. The Crown’s ability to do this comes from the Doctrine of Discovery which gives assumed sovereignty and Crown rights higher authority than Indigenous sovereignty and Immemorial rights.


If left to run its course, the Crown’s continued delegation of jurisdiction will completely replace pre-existing Indigenous governance and its Inherent Jurisdictions for societal institutions.

“Many First Nations maintain that any form of delegated authority is inconsistent with an inherent right of self-government.”2


2- Three-Group Distinction:


The three distinct groups of Indigenous peoples that are recognized by the Crown in section 353 are:


When First Nation, Inuit, and Métis ‘peoples’ were placed into section 35 of the Constitution Act it created a three-group distinction of Aboriginal peoples in Canada. The distinctions-based approach to federal policy creation and implementation only began to appear in April 2004 during roundtable discussions between the federal Liberal government in Canada and Indigenous leaders from the:


At that time, Indigenous leaders impressed upon the Right Honourable Paul Martin, Prime Minister of Canada, and key members of Cabinet the need to understand there were distinct differences between Indigenous Peoples. In that, a pan-Indigenous approach to Indigenous issues would not work.6 First Nation, Inuit, and Métis distinctions were incorporated by the Government of Canada into subsequent roundtable discussions leading up to the Kelowna Accord.7


The three-group distinctions-based approach was formally adopted in the Kelowna Accord8 in November 2005 as a federal Liberal government in Canada policy. Unfortunately, the federal Liberal government lost an election before the Kelowna Accord and its promises could be approved by parliament. Subsequent federal Conservative governments in Canada shelved the Kelowna Accord and its policies.


The distinctions-based approach was retained within the Liberal Party of Canada’s Indigenous policies.9 After a return to power in 2015, the Liberal Government of Canada included the distinctions-based approach into its plan to renew Canada’s relationship with Indigenous Peoples.


The distinctions-based approach, from the Indigenous perspective, was meant to establish a progressive collaborative approach respectful of Indigenous Peoples’ distinct and unique histories, cultures, traditions and relationships with federal, provincial, and territorial governments. However, since its inception in the Constitution Act, the distinctions-based approach has not progressed past the general three-group distinction of First Nation, Inuit, and Métis peoples.


The three-group distinction-based approach:


The three-group distinction is built into all Indigenous-related Crown-Delegated Institutions as they replace sovereign Indigenous nation-owed societal institutions.


3. Alternate Rights Regime:


The alternate rights regime used by the Government of Canada is described on another page of the website.


Community Government:


The most profound example of Crown-Delegated Jurisdiction11 is the Indian Act (1985)12 which was first brought into force in 1876. The band governance system in sections 74 to 86 of the Indian Act replace the Immemorial right to Indigenous government.13 It does so by delegating Crown authority to create an Indian band jurisdiction which excludes the Inherent Jurisdiction of the nation’s pre-existing governance. The result is that band councils (Chief and Councillors) do not have the same authority over their traditional territory as did their pre-contact nation’s leaders, they have less. Band councils administer in-community programs under the direction of the Department of Indigenous and Northern Affairs Canada (INAC). They are accountable to INAC for the use of funds and administratively considered to be a part of INAC. (Note: INAC is in the process of dissolution and dividing into two departments, Indigenous Services Canada and Crown-Indigenous Relations and Northern Affairs Canada.)


The Crown developed alternate legislation14 for elections and governance for First Nations who want to move away from the Indian Act. However, it too creates a Crown-Delegated Jurisdiction for First Nation governance.


Some First Nation communities are moving away from the Indian Act governance system towards self-government. Self-government is recognized by the Government of Canada as an Aboriginal right under section 35.15 Unfortunately, section 35 is part of an alternate rights regime with Aboriginal rights that are less-than their Immemorial rights counterparts. Consequently, self-government under section 35 replaces self-determination but is less-than self-determination16 would be under Inherent Jurisdiction.


Indigenous Partners:


The Indian Act began a process of re-making the Indigenous political landscape by influencing how Indigenous political organizations were structured.

“Perhaps less well appreciated is the way the Indian Act, because of its separation of status and non-status Indians, has influenced how national Aboriginal political organizations are structured. The legislation helped institutionalize divisions between Aboriginal political organizations. This is not to suggest that Aboriginal peoples do not have divisions and differences of their own. However, the Indian Act legislated key divisions and helped create Aboriginal political structures that made divide-and-conquer politics an easier game to play.”17


This process of remaking the Indigenous political landscape was advanced when section 35 of the Constitution Act (1982) recognized and affirmed existing, and future, Treaty and Aboriginal rights. In doing so, the governments in Canada needed policy input on Treaty and Aboriginal rights. Crown-Delegated Jurisdiction partnerships were created to receive policy input. These new jurisdictions are now referred to by the Government of Canada as ‘Indigenous partners.’ We will mention three basic types of Indigenous partners:

1. Treaty Partners;

2. National Partners; and,

3. Institution Partners.


Indigenous partners are empowered by legislation, agreements, and funding arrangements with the Crown that community rights-holders are not party to. The Crown-Delegated Jurisdiction vested in Indigenous partners gives the partner authority to work with the Government of Canada in place of community-based rights-holders, bypassing the consultation of Immemorial rights-holders and the sovereignty of Indigenous nations.


It is highly unlikely Indigenous partners are aware of Crown-Delegated Jurisdiction and how it is undermining the Inherent Jurisdiction of communities and Indigenous sovereignty. Most Indigenous partners simply see agreements and funding contributions as a way to keep their staff working and organizations afloat.   


1. Treaty Partners:


Through funding arrangements and Memorandums of Understanding, the Crown delegated authority to Treaty organizations transforming them into institutions of Treaty governance, replacing pre-existing traditional Indigenous nation governance systems.


These “Treaty Partners” are placed between the Crown and signatory communities. The Government of Canada consults Treaty Partners on policy issues affecting signatory communities. Treaty Partners consult community leaders, provide guidance to the Crown, deliver programs for the Crown, and negotiate with the Crown.


The Crown has no legal duty to consult Treaty Partners and it did not delegate its authority to consult Indigenous communities to Treaty Partners. Treaty Partners do not themselves hold Immemorial, Fiduciary, Aboriginal, Treaty, or Inherent rights. These rights belong to community rights-holders do.


The Crown has a constitutional obligation to discharge its duty to consult Indigenous community rights-holders or a group delegated with their Inherent Jurisdiction as rights-holders. To date, the section 35 right of Indigenous Peoples to consultation has not been discharged for every federal policy affecting, or potentially affecting, any Fiduciary, Treaty, or Aboriginal right that the Crown consulted Treaty Partners in regard to. Treaty Partners do not realize they are eroding the Inherent Jurisdiction of communities and Indigenous sovereignty.


The Crown is obligated to consult community treaty signatories or treaty organizations delegated Inherent Jurisdiction by community rights-holders through agreements and funding contributions between Indigenous communities and treaty organizations.


2. National Partners:


Section 35 resulted in, among other things, the Crown delegating authority to Aboriginal rights organizations. This did not happen instantly, especially when the section 35 Aboriginal rights box started empty in 1982. As common law definitions of Aboriginal rights began to accumulate and fill the rights box, so did the complexity of issues surrounding those rights. As the complexity increased, so did the need for dialogue. Adding to the dialogue complexity at that time were discussions towards the Indian Residential Schools Settlement Agreement,18 work leading toward the Kelowna Accord,19 and work anticipated in the follow-up to the accord.


In 2005, the Government of Canada entered into political accords, referred to as bilateral accords, with five Indigenous rights organizations to create policies on Aboriginal rights, promote Aboriginal rights, and, in one case, negotiate Aboriginal rights. These organizations are the:


Purposes of these bilateral accords included:

“Establishment of a Joint Steering Committee with representation from the Parties. The Committee will undertake and oversee joint action and cooperation on policy change, including the establishment of a framework or frameworks, to promote meaningful processes for the recognition and reconciliation of section 35 rights, including the implementation of First Nation governments.”20

“...to enhance the involvement of the Congress of Aboriginal Peoples in the development of federal policies which focus on, or have a significant specific impact on the Congress of Aboriginal Peoples’ constituency, particularly policies in the areas of health, lifelong learning, housing, negotiations, economic opportunities, and accountability;21

“...to advance the development and delivery of Inuit-specific policies, programs and services, within the Government of Canada, that are responsive to the specific priorities of Inuit and, where appropriate and possible, to coordinate these efforts with provincial and territorial policies, programs and services;”22

“...to develop and establish manageable negotiation and discussion processes, as appropriate, that will address any Aboriginal and Treaty rights of the Métis, including the inherent right of self-government;23 and,

“...to enhance the involvement of the Native Women’s Association of Canada in the development of federal policies which focus on, or have a significant impact on the Native Women’s Association of Canada constituents. Particularly in the areas of health, lifelong learning, housing, negotiations, economic opportunities, and accountability…24


These accords created a ‘National Partner’ Crown-Delegated Jurisdiction for these organizations placed between the Crown and Indigenous communities. The National Partner jurisdiction allowed for governments in Canada to consult accord-holders to create policies that affected the Immemorial, Fiduciary, Treaty, Aboriginal, and Inherent rights of community rights-holders; effectively bypassing the Inherent Jurisdiction of sovereign Indigenous communities and nations. Funding provided to these five organizations and their Provincial/Territorial Organizations approximates $200-300 million per year.


The Crown has no legal duty to consult National Partners and it did not delegate its authority to consult Indigenous rights-holders to National Partners. National Partners do not themselves hold Immemorial, Fiduciary, Treaty, Aboriginal or Inherent rights.


The Crown has a constitutional obligation to discharge its duty to consult Indigenous community rights-holders or a group delegated with their Inherent Jurisdiction as rights-holders. The constitutional right of Indigenous Peoples to consultation has not been discharged for every federal policy affecting, or potentially affecting, any Fiduciary, Treaty, and Aboriginal right that the Crown consulted its National Partners regarding. This right to consultation is protected by section 35 of the Constitution Act.


a. AFN Example:


Using the Assembly of First Nations (AFN) as an example:


The AFN’s general assembly of members is called the ‘First Nations-in Assembly’.25 All First Nation Chiefs in Canada have a right to be a member, but not all First Nations Chiefs are members. The AFN therefore does not represent all First Nations in Canada.


AFN member Chiefs are not rights-holders, their communities and citizens are. AFN member Chiefs do not have the Inherent Jurisdiction to be consulted on policies affecting community-based rights. However, if the Crown provided meaningful consultation to community-based rights-holders, communities could then provide direction for their Chiefs to contribute and vote on policies at AFN member meetings. Unfortunately, the Crown recognizes the Crown-Delegated Jurisdiction of Chiefs granted under the Indian Act, or through federal legislation, and does not provide a meaningful consultation mechanism to recognize and respect the Immemorial rights of First Nation communities.


The AFN, with the Crown-Delegated Jurisdiction granted to it in the bilateral accord, consults Chiefs, with the Crown-Delegated Jurisdiction granted to them, to create policies that modify or potentially modify the rights of First Nation community-based rights-holders.


b. Summary:


In the example, the Crown never provides consultation to First Nation communities to recognize and respect Immemorial rights or section 35 rights. Like Treaty Partners, these National Partners erode the Inherent Jurisdiction of communities and their rights-holders. Also like Treaty partners, National Partners are unaware of this.


Governments in Canada need to partner with and consult, Indigenous communities and nations on rights-based policies. National organizations will continue to be needed by Indigenous communities, but they must be directed by, and held accountable to, Immemorial rights holders through agreements and funding contributions with communities or an Inherent Jurisdiction delegated by rights-holders.


3. Institution Partners:


It was first suggested that Indigenous Peoples had an Aboriginal right to self-government in 1983.26 In 1995, the Government of Canada recognized the inherent right of self-government as an existing Aboriginal right under section 35.27 That right includes jurisdiction over services that benefit citizens and communities.28 Service jurisdiction areas include: Agriculture, health, education, government, policing, social services, and child welfare. (It should be noted that under the international right of self-determination, Indigenous Peoples have the right to develop their societal institutions free from the limitations of an alternate rights regimes such as the section 35 right to self-government.)


Many Indigenous communities lack the population base to justify, and human resource capacity to develop, societal institutions for service delivery jurisdiction. As a consequence, regional ‘Indigenous’ institutions are created by governments in Canada to provide services. Frequently, the new regional Indigenous institution has the same problems as its predecessor, non-Indigenous, institution. This occurs because the new institution was founded on the rule of law and Crown authority,29 not on Immemorial rights, Indigenous laws, or the Inherent Jurisdiction of Indigenous rights-holders. Examples include health care, education and child welfare organizations.


These regional Indigenous institutions are created by the Crown delegating authority through provincial and federal legislation coupled with funding contribution agreements.30 The new regional institution becomes a Crown-Delegated Jurisdiction founded on colonial law with an Indigenous facade. The Government of Canada includes these regional institutions into their list of Indigenous partners, Institution Partners.


Institution Partners are consulted by the Crown to create policies related to services they deliver. The Crown has not delegated a duty to consult to its Institution Partners and the Crown has no legal duty to consult Institution Partners. Consequently, the Indigenous right to consultation under section 35 has not been discharged for every Crown policy affecting, or potentially affecting, any Fiduciary, Treaty, and Aboriginal right that the Crown consulted its Institution Partners in regard to.


Like Treaty and National Partners, the involvement of Institution Partners in Crown policy formulation eats away at the Inherent Jurisdiction of community rights-holders. Bear in mind, that a certain level of input on services and service delivery will always be needed from Institution Partners. However, that input should come from an institution that was given the Inherent Jurisdiction from community rights-holders to provide those services. These Inherent Jurisdictions would then be accountable to Indigenous communities.


National Indigenous Government:


In Canada, the Doctrine of Discovery strips sovereignty from Indigenous Peoples. It empowers the Crown to replace Indigenous sovereignty, Immemorial rights, law, and Inherent Jurisdiction over land, resources, and peoples through the Framework of Colonization. As a result, the Government of Canada does not recognize Indigenous communities and their distinct nations as having legitimate political authority.

“One such modern variant, evident in the more complex politics of the last three decades and very much current today, is that Aboriginal peoples constitute an interest group, one among many in a pluralistic society. They, along with the labour movement, the agricultural lobby, or any other interest group are to be listened to respectfully, but their demands are subject to the political agenda and trade-offs of the day. They are not seen as having legitimate political authority, as being nations entitled to treatment as nations.”31 [Emphasis Added]


In 1982, section 35 of the Constitution Act created three distinct political groupings of Indigenous Peoples, First Nation, Inuit, and Métis peoples. However, there were no Indigenous government structures to facilitate the three-group distinction.


The Oka Crisis,32 failure of the Meech Lake Accord,33 the Spicer commission,34 the failure of the Charlottetown Accord,35 and a growing chasm between the Government of Canada and Indigenous Peoples all indicated the federal government required a National Indigenous Government presence to work with.


The Royal Commission on Aboriginal Peoples (RCAP) was established in 1991. RCAP released its report and recommendations in 1996. Among its recommendations was the establishment of a national Indigenous parliament structure after extensive consultations were completed with Indigenous Peoples. The purpose of the Indigenous parliament would be to advise the House of Commons and the Senate on Indigenous issues – on policy.36 Consultations for an Indigenous parliament did not occur.


During the 18 month process leading up to the 2005 Kelowna Accord, leaders of six Indigenous rights organizations engaged in negotiating policies with the Government of Canada. They are:

1. Assembly of First Nations (AFN);

2. Inuit Tapiriit Kanatami (ITK);

3. Métis National Council (MNC);

4. Congress of Aboriginal Peoples (CAP);

5. Native Women’s Association of Canada (NWAC); and,

6. National Association of Friendship Centres (NAFC).


Those negotiations, in part, resulted in bilateral agreements with five of the organizations. These agreements are referred to as bilateral accords and they committed parties to consultation on Indigenous policy. More specifically:


Bilateral agreements of this nature are also used by the Government of Canada to enter into Self-Government Agreements with Indigenous Peoples. The AFN argued against the inclusion of CAP and NWAC, citing they were not governments.38 However, the AFN, ITK, and MNC  were not Indigenous governments themselves. They were, and still remain, not-for-profit political organizations.


Indigenous governments have authority granted to them by the Inherent Jurisdiction of sovereign Indigenous rights-holders. However, bilateral accords gave these organizations funding and Crown-Delegated Jurisdiction. In combination with the three-group distinct of First Nation, Inuit, and Métis peoples created in section 35, the AFN, ITK, and MNC were raised to the level of quasi Indigenous governments by virtue of the authority in the Crown’s assumed sovereignty. The Government of Canada refers to these organizations as Indigenous partners or National Partners.

 

In late 2016,39 the Government of Canada announced it would create permanent bilateral mechanisms with AFN,40 ITK, and the MNC.41 In June 2017, a building in the National Capital Region was assigned to Indigenous Peoples so that the Government of Canada can work in ‘full partnership’ with AFN, ITK, and MNC representing First Nation, Inuit, and Métis peoples.42


The Crown has created a three-group distinction-based Indigenous national political structure and provided the physical infrastructure for it to be housed in the National Capital Region. It allows for:

1. Streamlined Crown consultation on Indigenous issues and rights; and,

2. Streamlined cooperative bureaucratic work towards Indigenous-related legislation and programs.


It is the nature of modern government to allocate its time to developing policy, implementing policy, and creating legislation. With permanent bilateral mechanisms, the AFN, ITK, and MNC are now fully partnered with the Government of Canada to develop Indigenous policy, implement policy, and create Indigenous-related legislation. These three organizations have become a permanent part of the federal government constituting a First Nation, Inuit, and Métis National Indigenous Government43 that advises the Government of Canada on Indigenous Issues.


This three-group distinction-based National Indigenous Government is not accountable to Indigenous Peoples and has no Inherent Jurisdiction delegated to it by sovereign Indigenous communities and nations. It was created through the Crown’s assumed sovereignty which derives from the Doctrine of Discovery.


The members of the AFN appear to have recognized, at least in part, the jeopardy in which these permanent bilateral mechanisms have placed Indigenous sovereignty. In May 2018, the AFN Chiefs-in-Assembly resolved to reign in the AFN’s executive. Resolution 08-2018 from the Special Chiefs Assembly states that the Chiefs-in-Assembly:

“1. Declare that the Assembly of First Nations (AFN), as an advocacy body, and any regional organizations cannot negotiate any binding changes to Canada’s federal laws, policies and operational practices as part of the Recognition and Implementation of Indigenous Rights Framework (the Framework).

 2. Call on Canada to work with First Nations before adopting and implementing any legislative or administrative measures that may affect First Nations in order to obtain their free, prior and informed consent.”44


Indigenous communities and nations need representation at the federal level. That representation needs to be based on self-determination so their government institutions can be based on Indigenous sovereignty, Immemorial rights, law, and Inherent Jurisdiction. It would not be overly difficult to modify the National Indigenous Government to reflect Indigenous sovereignty, but it cannot be done if the Crown’s assumed sovereignty over the AFN, ITK, and MNC remains in place.



1. (2003) McNeil, Kent. "Challenging Legislative Infringements of the Inherent Aboriginal Right of Self-Government." Windsor Yearbook of Access to Justice 22: 329-361. http://caid.ca/ChaLegInfInhAbo2003.pdf

2. (1999) Wherrett, J., Aboriginal Self-Government. Library of Parliament, Parliamentary Research Branch, Current Issue Review: 96.2E. http://caid.ca/AboSelGovPRB1999.pdf

“However, many First Nations maintain that any form of delegated authority is inconsistent with an inherent right of self-government. Inuit have pursued self-government through public government arrangements in the north in conjunction with land claims, while the Métis have advanced various claims for land and self-government.” [Emphasis Added]

3. (1982) Constitution Act. http://caid.ca/ConstAct010208.pdf

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.

(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

4. Canada (Attorney-General) v. Quebec (Attorney-General) [1939] S.C.R. 104. http://caid.ca/EskDec1939.pdf

“Does the term ‘Indians,’ as used in head 24 of section 91 of the British North America Act 1867 include Eskimo inhabitants of the Province of Quebec?

The answer of the Court to the question was in the affirmative”

5. (2004) Strengthening the Relationship: Report on the Canada-Aboriginal Peoples Roundtable April19th, 2004. p. 70. http://caid.ca/RepRndTblDisApr2004.pdf

The Powley case affirmed that Métis are a distinct people that hold collective Aboriginal rights – “a full-fledged rights-bearing people”. The Powley decision was a watershed in relations among Aboriginal people and the Government of Canada. We recognize the truth of that decision, and are turning the corner, renewing the relationship. This decision has changed the nature of our relationship with Métis people. We are committed to continuing to work with the provinces, territories and Métis organizations to address the implications of this decision.” [Emphasis Added]

6. (2004) Strengthening the Relationship: Report on the Canada-Aboriginal Peoples Roundtable April19th, 2004. p. 18. http://caid.ca/RepRndTblDisApr2004.pdf

“Aboriginal leaders strongly emphasized that the GoC needs to understand and take into account that there are distinct differences among Aboriginal peoples. The need for meaningful involvement and specific focus on First Nations (on/off reserve), Inuit, Métis, and Aboriginal women, as distinct groups with unique situations was highlighted. A pan-Aboriginal approach that attempts to “aboriginalize” or blur these distinctions was strongly discouraged by the Aboriginal leaders and will be resisted.” [Emphasis Added]

7. (2005) Canada-Aboriginal Peoples Roundtable: Negotiations Sectoral Follow-up Session – Facilitator’s Report. http://caid.ca/CanAboPeoRndTblJan2005.pdf

“Each sectoral session provided that the majority of time be allocated to breakout groups where the participants were organized into the three distinct Aboriginal groupings: First Nations, Inuit, and Métis. There were approximately 64 participants in the First Nations breakout group; 29 participants in the Inuit breakout group; and 27 participants in the Métis breakout group.” [Emphasis Added]

8. (2005) First Ministers and National Aboriginal Leaders – Strengthening Relations and Closing the Gap: Kelowna, British Columbia, November 24-25, 2005. http://caid.ca/Kelowna2005.pdf

“The following principles will guide how the parties will work together:

9. (2012) Summary of Policies of the Liberal Party of Canada with Respect to Aboriginal Peoples. Aboriginal Peoples’ Commission. Ottawa, Ontario. Accessed 2018-03-22, https://apc-cpa.liberal.ca/wp-content/uploads/sites/724/2012/12/Aboriginal-Policy-Summary.pdf

10. (2007) Coultard, G. S., Subjects of Empire: Indigenous Peoples and the ‘Politics of Recognition’ in Canada. Cont. Pol. Theor. 6: p. 437-460, at p. 452. http://caid.ca/PolofRec2007.pdf

“… the dominance of the legal approach to self-determination has, over time, helped produce of a class of Aboriginal ‘citizens’ whose rights and identities have become defined solely in relation to the colonial state and its legal apparatus. Similarly, strategies that have sought self-determination via mainstream economic development have facilitated the creation of a new elite of Aboriginal capitalists whose thirst for profit has come to outweigh their ancestral obligations to the land and to others. And land claims processes, which are couched almost exclusively in the language of property, are now threatening to produce a new breed of Aboriginal property owner, whose territories, and thus whose very identities, risk becoming subject to expropriation and alienation.” [Emphasis Added]

11. (2003) McNeil, Kent. "Challenging Legislative Infringements of the Inherent Aboriginal Right of Self-Government." Windsor Yearbook of Access to Justice 22: 329-361, p.329. http://caid.ca/ChaLegInfInhAbo2003.pdf

“The Parliament of Canada exercised its s.91(24) legislative authority over "Indians, and Lands reserved for the Indians" when it enacted the Indian Act in 1876. Through this Act and its precursors, the Canadian government imposed the band governance system on First Nations. Although traditional forms of Aboriginal government were not abolished by the imposition of this system, there can be no doubt that the capacity of Aboriginal governments was impaired and the inherent right of self-government of at least some First Nations was infringed.” [Emphasis Added]

12. Indian Act (1985). http://laws-lois.justice.gc.ca/eng/acts/i-5/index.html

13. (2003) McNeil, Kent. "Challenging Legislative Infringements of the Inherent Aboriginal Right of Self-Government." Windsor Yearbook of Access to Justice 22: 329-361, p360. http://caid.ca/ChaLegInfInhAbo2003.pdf

The band governance system in the Indian Act was generally imposed on First Nations without their consent, in many, if not all, instances in violation of their inherent right of self-government. While they probably had no legal recourse against this prior to 1982, recognition of their Aboriginal and treaty rights by section 35(1) of the Constitution Act, 1982 changed this situation. As the inherent right of self-government is no doubt an Aboriginal right, it has enjoyed constitutional protection since 1982. This means that any infringements of it, including infringements that occurred prior to the enactment of section 35(1), are challengeable. If an infringement is shown, the burden is then on the Crown to prove it can be justified by showing a valid legislative objective and respect for the Crown's fiduciary obligations.” [Emphasis Added]

14. (2014) First Nations Elections Act. http://caid.ca/FirNatEleAct2014.pdf

15. (1995) Aboriginal Self-Government: The Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government. Minister of Public Works and Government Services Canada, Ottawa, Ontario, Catalogue No. R32-155/1-1995, p.1. http://caid.ca/AboSelGov1995.pdf

“The Government of Canada recognizes the inherent right of self-government as an existing right within section 35 of the Constitution Act, 1982.”

16. (2018) King, H, & Pasternak, S., A Special Report, Canada’s Emerging Indigenous Rights Framework: A Critical Analysis, p. 4. Yellowhead Institute, Toronto, Ontario. http://caid.ca/CanEmeRigFra2018.pdf

“Our analysis reveals that the Rights Framework expresses a clear and coherent set of goals, which aim to suppress Indigenous self-determination within Canadian Confederation. These goals have been ordered into legislation and policy in a manner that guides First Nations towards a narrow model of “self-government” outside of the Indian Act. And remarkably, though labelled as new and transformational, the model reflects older and largely discredited approaches.”

17. (1996) Report of the Royal Commission on Aboriginal Peoples. Volume 1: Looking Forward Looking Back. Part Two: False Assumptions and a Failed Relationship. Chapter 8, Introduction; 2. The Abuse of Power and 3. The Four Policies in Brief. Canada Communication Group — Publishing, Ottawa, Ontario K1A 0S9. http://caid.ca/RRCAP1.8.pdf

18. (2006) Indian Residential School Settlement Agreement. http://caid.ca/IRSSA2006.pdf

19. (2005) First Ministers and National Aboriginal Leaders Strengthening Relationships and Closing the Gap, Kelowna, British Columbia, November 24-25, 2005. http://caid.ca/Kelowna2005.pdf

20. (2005) A First Nations - Federal Crown Political Accord on the Recognition and Implementation of First Nation Governments. http://caid.ca/AFNBilAgr2005.pdf

21. (2005) Accord on Cooperative Policy Development between the Congress of Aboriginal Peoples and the Government of Canada. http://caid.ca/CAPBilAgr2005.pdf

22. (2005) Partnership Accord Between the Inuit of Canada as Represented by Inuit Tapiriit Kanatami and Her Majesty the Queen in Right of Canada. http://caid.ca/ITKBilAgr2005.pdf  

23. (2005) Métis Nation Framework Agreement Between Her Majesty the Queen in Right of Canada and the Métis National Council. http://caid.ca/MNCBilAgr2005.pdf

24. (2005) Accord on Cooperative Policy Development between the Native Women’s Association of Canada and the Government of Canada. http://caid.ca/NWACBilAgr2005.pdf

25. (1985) Assembly of First Nations Charter, Amended in 2003. http://www.afn.ca/about-afn/charter-of-the-assembly-of-first-nations/

26. (1983) Indian Self-Government in Canada. House of Commons, Report of the Special Committee on Indian Self-Government (Penner Report),  p.43. http://caid.ca/PennerRep1983.pdf

“According to traditional constitutional interpretation prior to the recognition and affirmation of ‘existing aboriginal and treaty rights’ in the Constitution Act, 1982, all primary legislative powers were deemed to be vested either in Parliament or in provincial legislatures. The inclusion of existing aboriginal and treaty rights in the Constitution may have altered this situation. If, as many assert, the right to self-government exists as an aboriginal right, there could be a substantial re-ordering of powers. Indian governments may have implicit legislative powers that are now unrecognized.” [Emphasis Added]

27. (1995) Aboriginal Self-Government: The Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government. Minister of Public Works and Government Services Canada, Ottawa, Ontario, Catalogue No. R32-155/1-1995 http://caid.ca/AboSelGov1995.pdf

28. Personal Note:

It should be noted that under the international right of self-determination, Indigenous Peoples have the right to develop their societal institutions free from the limitations of alternate rights regimes such as the section 35 right to self-government.

29. (2018) Delegated Aboriginal Agencies in BC. Accessed 2018-06-12  http://www2.gov.bc.ca/gov/content/family-social-supports/data-monitoring-quality-assurance/reporting-monitoring/accountability/delegated-aboriginal-agencies  

Through delegation agreements, the Provincial Director of Child Welfare (the Director) gives authority to Aboriginal agencies, and their employees, to undertake administration of all or parts of the Child, Family and Community Service Act. The amount of responsibility undertaken by each agency is the result of negotiations between the ministry and the Aboriginal community served by the agency, and the level of delegation provided by the Director.” [Emphasis Added]

30. (2017) Delegated Aboriginal Agencies: How Resourcing Affects Service Delivery, Representative for Children and Youth. Victoria, British Columbia, p. 7.   http://caid.ca/DelAboAge2017.pdf

“What is delegation?

The level of delegation that a DAA receives from MCFD dictates the range of services it is mandated to perform under the Child, Family and Community Service Act (CFCS Act), which of the Aboriginal Operational and Practice Standards and Indicators (AOPSI) and ministry standards it is required to follow, and which of these standards the agency will be audited against. There are three tiers of delegation that reflect the operational category of an agency:

[Emphasis Added]

31. (1996) Report of the Royal Commission on Aboriginal Peoples. Volume 1: Looking Forward Looking Back. Part Two: False Assumptions and a Failed Relationship. Chapter 8, 4. New False Assumptions. Canada Communication Group — Publishing, Ottawa, Ontario K1A 0S9. http://caid.ca/RRCAP1.8.pdf

32. (2009) Conradi, A., Uprising at Oka: A Place of Non-Identification. Can. J. Comm. 34, p.547-566. http://caid.ca/UprOka2009.pdf

33. (1987) Meeting of the First Ministers on the Constitution: 1987 Constitutional Accord – The Meech Lake Accord. http://caid.ca/MeeLakAcc1987.pdf

34. (1991) Citizens’ Forum on Canada’s Future. Report to the People and Government of Canada – The Spicer Commission.  Minister of Supply and Services Canada, Ottawa, Ontario. Cat. No. CP32-57/1991, ISBN 0-662-58394-9. http://caid.ca/SpicerCom1991.pdf

35. (1992) Consensus Report on the Constitution – The Charlottetown Accord. http://caid.ca/ChaAcc1992.pdf

36. (1996) Report of the Royal Commission on Aboriginal Peoples. Volume 2: Restructuring the Relationship, Appendix A Summary of Recommendations in Volume 2 (Parts One and Two). Canada Communication Group — Publishing, Ottawa, Ontario K1A 0S9. Rec. 2.3.51.  http://caid.ca/RRCAP2.APP.A.pdf

2.3.51 “The federal government, following extensive consultations with Aboriginal peoples, establish an Aboriginal parliament whose main function is to provide advice to the House of Commons and the Senate on legislation and constitutional matters relating to Aboriginal peoples.” [Emphasis Added]

37. (2006) Patterson, L. L., Aboriginal Roundtable to Kelowna Accord: Aboriginal Policy Negotiations, 2004-2005. Library of Parliament. PRB 06-04E. http://caid.ca/AboPolNeg2006.pdf

38. (2006) Patterson, L. L., Aboriginal Roundtable to Kelowna Accord: Aboriginal Policy Negotiations, 2004-2005. Library of Parliament. PRB 06-04E. p. 16. http://caid.ca/AboPolNeg2006.pdf

“While all Aboriginal participants sought inclusion and action on Aboriginal and treaty rights, AFN took the position that NWAC and CAP should not be at the table because they are not governments. NWAC and CAP had problems with the “distinctions-based” approach in which matters relating to non-Status Indians, urban Aboriginal residents, and Aboriginal women were categorized as “cross-cutting issues.” [Emphasis Added]

39. (2016) Statement by the Prime Minister of Canada on Advancing Reconciliation with Indigenous Peoples. http://caid.ca/PMOPerBilMec2016.pdf

40. (2017) Assembly of First Nations – Canada Memorandum of Understanding on Joint Priorities. http://caid.ca/AFNMOU2017.pdf

41. (2017) Canada – Métis National Accord. http://caid.ca/MNCMOU2017.pdf

42. (2017) Prime Minister Announces 100 Wellington to become Space for Indigenous Peoples. http://caid.ca/PMOAnnSpaIndPeo2017.pdf

43. (2018) King, H, & Pasternak, S., A Special Report, Canada’s Emerging Indigenous Rights Framework: A Critical Analysis, p. 9. Yellowhead Institute, Toronto, Ontario. http://caid.ca/CanEmeRigFra2018.pdf

“Further, the fact that the AFN National Chief is the only Indigenous person to participate as an equal at Confederation-style nation-to-nation meetings makes the “new relationship” seem clearly bilateral between the Crown and the AFN. This is troubling considering the AFN has no inherent or delegated governing authority… But at present, it does seem as though the MOUs are the frameworks whereby priority-setting is done with the NIOs as the “Nation.” Does this mean that the federal government understands the AFN as a “nation”? Or does the reconstitution of nations process leave the Crown with no other choice with whom partner?” [Emphasis Added]

44. (2018) Implementing Canada’s Recognition and Implementation of Indgenous Rights Framework and Clarifying the role of the AFN, Resolution No. 08/2018, Special Chiefs Assembly, May 1 & 2, Gatineau, QC. http://caid.ca/AFNRes08_2018.pdf



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Last Updated July 13, 2018