Trudeau's undisclosed plan for Indigenous self-government sets stage for election of next national chief

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      Many liberal-minded Canadians felt that Prime Minister Justin Trudeau took a giant step forward when he appointed the country's first Indigenous justice minister.

      Jody Wilson-Raybould had previously been the regional chief of the Assembly of First Nations.

      It was taken as a sign that Trudeau was very serious about forging a new, more positive relationship with Aboriginal people.

      This was also reinforced in media coverage of his announcement in February that Ottawa would introduce a new legal framework for Indigenous peoples later this year.

      "We need to get to a place where Indigenous peoples in Canada are in control of their own destiny, making their own decisions about their future," Trudeau said in Parliament.

      To most non-Indigenous people keenly interested in reconciliation, this all sounds very positive.

      It's being marketed by the Trudeau government as a way to end the court fights of the past and to provide true autonomy to Indigenous governments.

      And no doubt, it will be welcomed by many First Nations leaders, and particularly those who've worked alongside and admire Wilson-Raybould.

      But this legislative agenda could still ignite controversy at next week's Assembly of First Nations convention in Vancouver.

      That's because Wilson-Raybould's past efforts to promote First Nations self-government have not been universally admired by Indigenous leaders.

      And it's emerging as an issue in the election of a new national chief, which will take place on Wednesday (July 25).

      Former Vancouver Sun reporter Peter O'Neil's biography of Gerry St. Germain reveals the role that the justice minister played in his self-government legislation.

      Wilson-Raybould once assisted a Conservative senator

      In 2012, then Conservative senator Gerry St. Germain introduced Bill S-212.

      It was an act "providing for the recognition of self-governing First Nations of Canada".

      In the book I Am a Metis: The Story of Gerry St. Germaine, author Peter O'Neil reported that the senator and his aide, Stephen Stewart, "obtained help from Wilson-Raybould, then BC regional chief of the Assembly of First Nations, and Tim Raybould, her husband and a specialist in self-government issues".

      Wilson-Raybould described the bill as "significant" in a news release issued a few days after its introduction. 

      Moreover, she stated that it would "generate much-needed dialogue and debate around the importance of reconciliation and for First Nations to be recognized as self-governing based on our inherent right of self-government and as required by the United Nations Declaration on the Rights of Indigenous Peoples".

      "We are under no illusion that the government of Canada will actually support Bill S-212," she added. "It is not a government-sponsored bill. No doubt there will also be opposition from some First Nations."

      Yet she described it as "a step in the right direction and...stands out today as an alternative to the federal government's neo-colonial legislative agenda for our peoples, that seeks to tinker around the edges of the Indian Act and design our post-Indian Act governance for us."

      One of the candidates in the election for national chief, Kahnawake Mohawk Russ Diabo, has been extremely critical of St. Germain's 2012 Senate bill. And by extension, Diabo has been critical of Wilson-Raybould's role in its creation, as well as the Trudeau family's approach to Indigenous relations.

      Diabo contends that the long-term goal is to extinguish Aboriginal title, foist municipal-style governance on First Nations, and eventually have their lands converted to fee-simple status.

      A candidate for AFN national chief, Russ Diabo, tweeted this image along with the words: "The Trudeau Family Values on Indigenous Collective Rights!"
      Russ Diabo

      Bill S-212 outlined powers under Indigenous self-government

      St. Germain's bill, which never passed, laid out a framework for becoming "a recognized First Nation".

      It included developing a proposal to be approved by referendum of eligible First Nation voters.

      Under the bill, the proposal would require the creation of a First Nation constitution. The proposal also needed a description of lands that would form the boundaries.

      Bill S-212 stated that the constitution would require conflict-of-interest rules and procedures relating to the selection and tenure of the governing body's members.

      In addition, this constitution would have to have a system of financial management and accountability involving independent audits in accordance with generally accepted accounting standards.

      That's not all. The constitution needed to state that First Nations would issue annual statements of remuneration and expenses paid to members of the governing body.

      In other words, federal law would set the rules around any First Nation's constitution under Bill S-212.

      Any federal law can be amended by future Parliaments, which could change these rules. Parliament would also have the power to extinguish the act, just as provincial legislatures have the power to extinguish legislation allowing for the creation of municipalities and school boards. 

      Bill S-212 also set the rules around the areas in which First Nation could make laws.

      These included the administration of justice, establishment of tribunals, emergency preparedness, labour relations, fishing, and "the manufacture, supply, sale, exchange, transport, possession, and consumption of intoxicants".

      The bill did not confer authority on First Nations to create laws around such areas of federal jurisdiction as national defence, broadcasting, immigration, or official languages.

      First Nations under the bill could only make laws punishable on summary conviction. And no imprisonment or fines could exceed those in the Criminal Code of Canada.

      In the view of some Indigenous peoples, these were fairly circumscribed powers. 

      Bill S-212 also defined a First Nation as a group of people falling under section 91 of the Constitution Act, 1867, or any group determined by a court or through an agreement with the Crown to hold Aboriginal title.

      Jody Wilson-Raybould and her husband, Tim Raybould, wrote Governance Toolkit: A Guide to Nation Building.

      Role of Assembly of First Nations becomes election issue

      The national chief is elected by other elected chiefs.

      It leaves the public sometimes feeling that it's like a government.

      But one of the candidates in the election for national chief, Miles Richardson of the Haida Nation, has been very vocal in saying it is not a government.

      He insists that it's a lobbying organization, and it does not speak for other First Nations.

      Diabo has said the same thing. 

      A third candidate, Manitoba Keewatinowl Okimakanak former Grand Chief Sheila North, would like to see less focus on Section 35 of the Constitution Act, 1982.

      It recognizes and affirms existing aboriginal and treaty rights including those that "may be so acquired".

      Instead, she's arguing for more emphasis on legally enforceable obligations to enable First Nations to determine their relationship with Canada, including in asserting economic sovereignty.

      The fourth candidate, Wipazoka Wakpa Dakota Nation community leader Katherine Whitecloud, has advocated for more inclusive AFN governance that sets aside colonial approaches.

      Before becoming justice minister, Wilson-Raybould and her husband, Tim Raybould, wrote a book called Governance Toolkit: A Guide to Nation Building. 

      It outlines comprehensive governance arrangements with the Sechelt, Westbank, Nisga'a, Tsawwassen, Maa-nulth, Yale, Tia'amin governments in B.C.

      Diabo has described these powers as being not much different than those of municipalities.

      And he worries that self-government arrangements outlined in the Governance Toolkit will guide Trudeau's legislative agenda in the fall.

      The incumbent national chief, Perry Bellegarde, is running on his record of working well with the federal government. He takes credit in securing $17 billion to Indigenous priorities in the last three federal budgets.

      Bellegarde has also pointed out that the Trudeau government has "committed to pass a law to implement the United Nations Declaration on the Rights of Indigenous Peoples".

      But some wonder how the Trudeau government's legislative plan for promoting self-government will ever be in accordance with the UN declaration.

      This is aside from the Trudeau government's decision to buy a pipeline, which is opposed by West Coast First Nations, and issuing federal permits for the controversial Site C dam. That's being challenged by some Treaty 8 nations.

      The UN document includes this article: "States shall consult and cooperate in good faith with indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measure that affect them." (Italics added.)

      Another article states that Indigenous peoples have "the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources".

      Some, including Richardson and Diabo, make the case that this isn't happening when the Trudeau government will develop a pipeline that doesn't have the free, prior, and informed consent of all Indigenous governments affected by the project, including the Tsleil-Waututh and the Squamish.

      Many Indigenous people on the West Coast say the Trudeau government is ramming through a pipeline without their free, prior, and informed consent.
      Dogwood Initiative

      But perhaps the most relevant articles in the UN declaration, as they pertain to Indigenous self-government, involve the right to self-determination.

      Article 6 states: "Every indigenous individual has the right to a nationality."

      It doesn't say "a nationality of the government claiming jurisdiction over their traditional territories under the doctrine of discovery."

      Article 3 states that by virtue of their right to self-determination, "they freely determine their political status and freely pursue their economic, social and cultural development".

      There's nothing in the UN declaration stating that First Nations must adhere to Section 91.24 of the Constitution Act, 1867 of Canada in determining their political status.

      The Constitution asserts that the Parliament of Canada has "exclusive Legislative Authority" over "Indians and Lands reserved for Indians".

      And it's under this power that the Trudeau government will be outlining its legislative framework for self-government for Indigenous nations north of the 49th parallel in North America.

      You can be sure that this framework will not offer any opportunity for Indigenous nations to declare independence from Canada.

      There will be no provisions allowing them to create a military force to defend their sovereignty or license broadcasters to communicate on their territories in their own languages. 

      Expect to hear a lot of talk at the Assembly of First Nations convention about Section 91.24 and the UN Declaration on the Rights of Indigenous Peoples.

      This article was written with the intention of helping clear up any confusion before next week's debate on these matters intensifies in Vancouver.