charter.rights

Conservative government policy for one. There is very little problem with First Nation administration of funding. That has been made out to be a red herring. Just read the Auditor General's report for the last 10 years. Protest, occupation and economic disruption is working for them. What would you suggest that works more effectively? So if we want to engage in a dialog with First Nations, we have to do the right thing - acknowledge the Royal Proclamation to its full extent and then take everything form the basis that they have title and rights to all of Canada. Then when government can show that proper surrenders were completed we have room for negotiation, right?

Why...'cause Shady says so? One small parcel of land 290 acres, at Six Nations that was flooded for the Welland Canal was valued at between $12,000 and $14,000 in 1829. Today with compounded interest dictated by and Order in Council, at annual interest rates the value of that land in trust is between $500 million and $1 billion. Six Nations alone has transferred over $100 million prior to 1769 to the British (and to Canada) to be held in trust to the benefit of Six Nations. With compound interest based on that same table of interests paid that fund is well over $1 trillion on its own. Six Nations also has a claim for the other 900,000 acres illegally occupied by us, in the Haldimand Tract. This does not include other Mohawk territories whom also have claims for large tracts. That 900,000 acres at 1830 value would have been worth $38 million then, and brought forward with interest would be worth an additional $1.5 trillion today. The accounts are there and the government is legally obligated to First Nations for it.

Nobody is stopping you from living the way they did 300 years ago either. The point is no one has to.

Some things negotiations alone cannot solve. The Truth and Reconciliation Commission is one such case. In order to undo 150 years of genocide, oppression and entrench white male control of today's institutions and government we all have to go through a social restructuring of sorts. The first place to start that is through education of younger people. Interestingly enough that is going on as we speak. However, there are insufficient accurate materials to fully explore the native - colonial relationship especially those written from a more aboriginal centric perspective (necessary to provide balance to the discussions). The pre-Family Compact era actually saw settlers and natives living side by side. However once the Victorians wrestled domestic power from Great Britain they set out to destroy that relationship, and to oppress and commit genocide on any natives that stood in their way of taking resources and land that did not belong to them. When people complain they had nothing to do with the condition of First Nations today, one need only point to the Family Compact and the laws and profits they stole to suggest that we are all complicit. Multi-year, multi-court challenges have been the government's preferred method until recently when they have lost all kinds of Charter challenges. The Supreme Court has been short with government insisting there is an obligation to First Nations under the Charter that extends beyond self-serving statues and laws that force FNs to follow the government's procedures and definitions. Yet instead of honouring the Crown and negotiating honestly, the government's position is no less a colonial one set out on keeping natives subservient to departments and regulations. The result as we see in the news is something short of rebellion when government stalls and obfuscates the process. The Royal Commission on Aboriginal Peoples warned that the consequences of delay and failure to recognize and accept aboriginal rights would be revolt and economic disruption. And as if taken from a page in a book, First Nations are no longer accepting of development and industrialization of their lands without consultation. Through stand-offs and through confrontation, First Nations have been rapidly changing law and procedure. While it is not a favourable method of progress, it nonetheless works. And until we can come up with something better, stand-offs, occupations and economic disruption will be escalating. Negotiation that begins with recognition of the Royal Proclamation 1763, the autonomy and absolute title over lands it acknowledges and the rights that existed before it, can be a new way. Government doesn't want to give up power but I suggest we have no choice. Aboriginal jurisprudence is evolving and the future will bring more expensive settlements and more risk of uprising if they are ignored. Aboriginal people were here first and they were smart enough to secure their future through treaties and agreements. We just have to get out of the 18th century to see that.

It isn't that easy. 1. The government owes First Nations a fiduciary by law. 2. The government is presently holding an estimated $2trillion trust fund owed to First Nations. The annual compounded interest rakes in at about $35 billion per year. So before we even get off the ground, and even before we start making payments on principles we have to pay First Nations their portion of the $35 billion a year interest, which is about 2 1/2 times the total annual INAC budget and 5 times what First Nations receive now. 3. We don't get to decide what type of self-government First Nations use, or whether or not they will be under the AFN.

Not true.

It has nothing to do with the subject matter.

It can't unless they willingly surrender it to the Crown...and they are unlikely to surrender since it is the last sovereign territory they hold. And by the way, we don't have a reservation system in Canada. Their territories are "reserves". "And We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three new Governments, or within the Limits of the Territory granted to the Hudson's Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as aforesaid. " Royal Proclamation 1763

Do you mean proroguing Band Council meetings? Or being found in contempt. Or Spending $1 billion on parties for themselves. Ah yes corruption at the highest level.

Wrong. Reserves are not apartheid constructs. They are sovereign territories held back in deals made with the Crown. They belong to the First Nations and are entirely out of Canada.

That is irrelevent. Housing is underfunded by more than 50% of the mainstream funding according to the Auditor General. What also is important is that $127 million could build almost 1000 housing units for First Nations. With overcrowding and failing water and sanitary systems, that would put quite a dent into the native housing problem.

The rights of Aboriginal people come from before the Charter, before the British North American Act and before the Royal Proclamation 1763. The inclusion of the recognition of these rights was to suggest that Canada rights and Canadian laws cannot abrogate or derogate from any of those aboriginal rights. And while the Indian Act has provided that the laws of general application are applicable on reserve, neither the Charter or the Supreme Court seem to support it. In Derrickson v. Derrickson the Supreme Court struck down family law on reserve. A recent letter from Indian Affairs legal department provided an opinion that Ontario Court orders are not applicable on reserve. And under the Royal Proclamation the Supreme Court has established that First Nations have an inherent and inalienable right to self-government. That suggests as well that First Nation people are outside the jurisdiction of of laws...a fact that is supported by the The Campbell Treaty 1736 which provided under the Silver Covenant Chain that Six Nations citizens would be extradited by the British to Six Nations Territory for any crime committed and British subjects would be extradited to British territories for any crimes committed by British subjects in either territory.

The Supreme Court has upheld the Royal Proclamation 1763 - that is a given. However, the government still doesn't accept it as the beginning of any negotiation and at the end of the day is where most negotiations stall. The Crown (is Courts) has repeatedly informed the federal and provincial governments that is must consult with First Nations BEFORE any act or development is undertaken that may affect their rights, or title to the land regardless if there has been a land claim or notice of an issue. What that is saying, is that by law the government must approach First Nations on every development, approval, change or investment to see if they have an issue, and if so enter into negotiations, make accommodation - including compensation - and making sure that final decisions are reconciled with First Nations interest. Yet they routinely ignore this legal responsibility and only after occupation and protest interferes with the development do they then want to negotiate. Then if the natives issues are difficult to accommodate their tactic is to first paper them to death and then failing that, stall, obfuscate and walk away from negotiations as if they hold the upper hand. Those rights exist without interference from the law or from our colonial interpretations. The Supreme Court has said that we must negotiate with First Nations on an equal footing, and the basis of that negotiation if we want some resolution is for them (and us) to recognize that the Royal Proclamation is the starting point. Once we understand that aboriginal title and rights exist we can then set out to prove that land was either surrendered...or not...and accept that if it is the latter we must find a way to reconcile our common settlement and interests in the lands. The provisions of a number of treaties set out to insure that native people, being displace from their land would have perpetual care - health, education and often annual allotments of flour and blankets. In a modern sense this has translated into free primary and secondary education (a right we all pretty much have) and free health care (which we also pretty much are guaranteed). So things like reserves - which are not Crown lands and which are free-hold First Nations lands)and health and education are off the table. All we are left with is trying to find out how to return tracts of lands that were reserved for them exclusively, or providing enough compensation for their loss of use and sale of those lands which cannot be returned. Again, the legal history provided that the government inherited a First Nations Trust account of what is now worth over $2 trillion. The compounded interest alone had the government been honest enough to pay directly to each First Nation, would be around $35 billion a year - nearly 3 times the annual INAC budget (60% of which never sees reserves). Could you imagine that if that we paid them what we owe them, the benefit it would have not only on them, but on our own economic development as natives purchased goods and services to elevate them to the same status we enjoy? We need reconciliation as much as they do, since the tax burden might be more difficult to bear in the future as land claim after land claim, and the exercise of their rights is extended and further protected by the courts. It is time that WE entered the 21st century and realized that the "Indian problem" is really rooted in our collective ignorance in law and history.

For the most part Canadian sovereignty has been built without a land base. If you go back through the legal history in Canada, the purpose of the BNA Act was for two primary reasons: to protect the economic independence of the British colony, and to help defend on a what was anticipated as another invasion by the US. IN reality there were no Crown colonies in Canada and most of the purported surrenders did not follow the rules and processes set out in the Royal Proclamation 1763. So as an establishment of fact, aboriginal title was not extinguished, and the pre-existing rights and title that go with the recognition under the Proclamation, as not being subject to either Confederation, or the assumptions and domestic laws built after the fact. Canada sits on land under aboriginal title, and there fore holds no jurisdiction in a strict legal sense over First Nations. Aboriginal title underlies any claim to Canadian jurisdiction and therefore sits "above" Canadian laws. The Supreme Court of Canada has defined this as a "sui generis" title that cannot be defined under the context of our common law understanding. Lord Denning, British High Court in a 1982 Judicial Review of the Canada Act (before it was proclaimed): “That judgement was given at a time when, in constitutional law, the Crown was single and indivisible. In view of it , and in later cases, I think that the Indian title (by which I mean the ‘personal and ususfructary right’ of the Indians in respect of ‘lands reserved to the Indians’) was a title superior to all others save and in so far as the Indians themselves surrendered or ceded it to the Crown." As Shwa points out, nothing can be abrogated form any of the rights identified in the Charter. That implies that neither the laws of Canada, or other rights contained in the Charter can reduce or interfere with the pre-existing rights of aboriginal people. While this hasn't yet been tested in the SCoC, other tests have suggested that the Court sees aboriginal rights over and above Canadian law, in that they have ruled that not only accommodations must be made where there are conflicts with our laws, but that we must interpret all treaties and agreements paying in some case more attention to their oral history than our written documents in a manner that aboriginal people would have understood them at the time they were made. As well we need only look at the requirement for full and honourable consultation as suppport for the idea that rights may very well be over and above our jurisdiction.

All rights come above Canadian law. Get it? So the reserves, funding for health and education, land rights etc can not be legislated out of existence.

Read the second part. I provided clarification. "Aboriginal rights are not subject to Canadian law. The Charter guarantees it."

Can't sign away rights. They tried that with enfranchisement in the early 1900's but it was all reversed under the Charter of Rights and Freedoms. We don't need to trade them the land though. It is theirs already.

Nope never said that. But nice try on a straw man argument. Aboriginal rights are not subject to Canadian law. The Charter guarantees it.

The Indian Act can only be replace, not eliminated. The problem is that the federal government has a fiduciary responsibility to First Nations as well as having to manage over $2 trillion in First Nation trust accounts. Some Act must be available to do this, as well as providing for our governments obligations to provide health, education and land claims. Maybe a new Aboriginal Act will be coming...but not without first consulting, negotiating, accommodating and reconciling with First Nations first, as required under the Charter of Rights and Freedoms.

They are not prevalent. And they are not unique to First Nations. Did you bat an eye that Harper used military jet to fly him and his kids to Boston for last nights hockey game? Do you think he is entitled?

Many - especially in Ontario - are bolstered by their own economic development initiatives as well as casino money. However, this money cannot go into infrastructure or operations. Still, their schools, health programs and lack of potable water still affect them.

Of course the funding that INAC receives does not translate to First Nation funding. The reality is that only about 30% of INAC's total budget actually makes it to First Nations, and when compared to municipality funding transfers it is far less per capita. Education, health, housing and social services are all generally underfunded by more than 50% of the mainstream and most of the money INAC receives is consumed on salaries and programs directed at their own employees. Sheila Fraser has identified these issues in the last 3 audits she performed. This serious underfunding has led in some case to third world conditions on reserves. In the past she has stated that First Nations are scrutinized more than any other organization in Canada, and are held more accountable than any government departments. The problem she cited were with reports sitting for months at a time on bureaucrats' desks unread, while they demanded the same reports from First Nations over and over again. The inefficiency and even corruption begins and ends in INAC. Tilter will get his wish since the last Auditor General's report issued by Sheila Fraser was set to be release this week. She included an audit on INAC among other things but as usual it will get lost in the scathing report on G8 / G20 spending that will grab media attention.

According to the academic circles engaged in aboriginal issues there have been two major stumbling blocks to reconciliation in a multinational society. The first is that native people are not only misrepresented by band councils but that native people are mis-identified. That means when we hear pejorative generalizations, they prolong our common ignorance on the real nature of all the issues. Thus the general ignorunts (some that post here regularly)identify that native people are drunks, or corrupt or otherwise incapable of handling their affairs. This is not only blatantly incorrect, but borders on racism defined against the UN Declaration on the Rights Of Indigenous Peoples (as a framework for colonial - aboriginal relationships). Secondly, recognition of the facts, such as the extent of the Royal Proclamation 1763, its inclusion in the Charter of Rights and Freedoms as demanded by the Queen, and the British High Court rulings that set the stage for the section 35 inclusions, are mandatory. There is no doubt that aboriginal people not only have legal standing over and above Canada, but that the rights and land title are above Canadian law. The government is the worst offender, and if agreements cannot be reached to advance development or economic development on native lands it is most often the result of government refusing to acknowledge this very important point. Until agreement can be achieved on these two salient points, we will maintain the status quo. The fact is that First Nations people are not Canadians by default and the Crown (and not the First Nation) has the responsibility under law to prove that valid surrenders we process according to the Royal Proclamation 1763.

Of course the only starting point is this: The Royal Proclamation 1763 set out certain boundaries for the colonies and recognized not only aboriginal title to all other lands but procedures for obtaining more lands when native people wished to dispose of it. So the assumption in any future agreements is that aboriginal people hold absolute title to all lands in Canada (since they are outside the original 4 colonies specified under the Proclamation) and hold the Crown responsible for proving that the settlement of lands, and the assumption of Crown jurisdiction over lands was legitimate and according to the procedures set out. From that point, aboriginal people have the absolute right to benefit from sharing revenues and taxation (that Canada receives on those lands). Only after those benefits and rights have been recognize can we hope to enter into perpetual treaty agreements with First Nations.

You also need a current events lesson. INAC must approve every project when funding is requested by First Nations. They require architects and engineers and consultants be hired BEFORE any of the money is released. Then only guarantees are given and the First Nations must build the infrastructure using bank loans or other types of interim financing BEFORE they receive the cheque. I know one First Nation who have proposed a water treatment plant and have been embroiled in INAC red tape for about 10 years over it. INAC at first requested a consultant (the first $250,000) to evaluate needs and the size of plant required. After about 3 years of review (and a new government) INAC decided to require a second consultant (this time $750,000) to come up with selections based on the most modern technology available. The estimated cost of the first proposal was around $10 million. The estimated cost of the 2nd proposal is $75 million. INAC now says they don't have the money available for such a high cost of water treatment but insist they will not use the first proposal because it is based on the same system that the rest of Ontario uses. Meanwhile 60% of reserve houses AND the school AND the health and wellness centre don't have access to potable water and have to have water trucked in at a personal cost of about $3500 per year. The screw up on this one example is totally with the government.