Affirming Treaty Rights and Inherent Rights Title and

Affirming Treaty Rights and Inherent Rights, Title and Jurisdiction Presented by: Rogers Jones Date Prepared: April 25, 2019

Background • The denial of First Nations rights has impeded our responsibilities to the lands and waters as well as the health and well-being of our children. • For decades, First Nations pressed for joint review and overhaul of key areas of federal law and policy that impact First Nations rights, such as those to land self-determination as well as jurisdiction over health, environmental protection and other matters. • Treaty rights and the inherent rights, Title, and jurisdiction of First Nations have been affirmed under international law and domestic case law. Successes have come through sustained advocacy and activism. • Canada has endorsed the United Nation Declaration on the Rights of Indigenous Peoples and has committed to adopt and implement it without qualification. Date Prepared: April 25, 2019 2

Background • First Nations have called for support for Nation rebuilding, including law-making, institutionbuilding, and traditional governance systems, in order to assert our inherent rights outside the purview of Canadian legislative control. • At the United Nations Permanent Forum on Indigenous Issues (UNPFII) in 2016, Minister Bennett stated: “By adopting and implementing the Declaration, we are excited that we are breathing life into Section 35 and recognizing it now as a full box of rights for Indigenous peoples in Canada believes that our constitutional obligations serve to fulfil all of the principles of the declaration, including free, prior and informed consent. … What does this mean for Canada now? It means nothing less than a full engagement and how to move forward with adoption and implementation done in full partnership with First Nations, the Métis Nation and Inuit peoples. ” Date Prepared: April 25, 2019 3

Federal legislation and policies centre on self-administration and denial of rights Our Right Self-determination: The rights of Indigenous Peoples to choose our destinies. In Canada, it means that First Nations, have the right to negotiate the terms of our relationship with Canada and choose governmental structures that meet our needs. Self-administration: Downloading of programs and services to be delivered by First Nations where other governments make all key decisions over program content, standards, funding, etc. Self-government: Our Right The ability of First Nations to enforce our own rules, resolve disputes, problem-solve, and establish our own governing institutions to carry out these tasks. CURRENT STATE Date Prepared: April 25, 2019 4

A “Full Box” of Rights Section 35 A “Full Box” • The Government of Canada has confirmed that Section 35 contains “existing” Inherent Rights, Treaty Rights. • Section 91 includes jurisdictions of the federal government • Section 92 includes jurisdictions provincial governments • The rights articulated by the UN Declaration. • The Supreme Court of Canada has encouraged more flexibility in finding solutions between Crown law and policy and Indigenous Treaty rights. Pre-1975 Treaties UN Declaration Section 91 Section 92 (24) American Declaration Date Prepared: April 25, 2019 5

A Key Issue: Reconciling Sovereignties First Nations sovereignty needs to be reconciled with the Crown’s assumed sovereignty First Nations Sovereignty • Source of First Nations inherent rights, Title and jurisdiction Treaties • Nation-to-Nation (international) agreements UN Declaration and American Declaration • International recognition of some rights and treaties Indian Act • Denial of First Nation’s rights, Title and jurisdiction Section 35 • Domestic recognition and affirmation of “existing” inherent and Treaty rights Empty box • Source of Canada’s Inherent Right to Self-government Policy and Comprehensive Land Claims Policy Full box: • Affirms First Nation’s pre-existing sovereignty, needs to be reconciled with the assumed sovereignty of the Crown Nation Building • Method to re-assert First Nations sovereignty Date Prepared: April 25, 2019 6

Recent Events 2018 Recognition February Implementation 2018: develop and a process to Minister new Prime announces The a of Indigenous Rights Framework and Canada begins engagements with First Nations. May July s AFN 2018: September The December Date Prepared: April 25, 2019 Implementation of Indigenous Rights Framework, which calls for Canada to recognize rights and to work with First Nations to ensure engagements are informed, sufficient, transparent and accessible. Decolonization, calling for the process to be halted and a First Nations-led process created. information and engage in informed discussion and dialogue. Implementation of Indigenous Rights Framework and Associated Processes, which calls for: (1) The development of a Nation-building process, (2) A meeting with the Prime Minister to address the rights mandate, and (3) A second AFN policy forum to “establish principles to solidify our approach with the Crown. ” 7

Recent Events 2019 January 2019 Date Prepared: April 25, 2019 Canada responded advocacy indicated efforts and to with willingness workto First Nations and the AFN to replace the Comprehensive Land Claims Policy (CLCP) and Inherent Right Policy (IRP). Canada initiated an approach and indicated June 2019 deadline. 8

AFN September 2018 National Policy Forum: Affirming First Nations Rights, Title and Jurisdiction • At this policy dialogue among First Nations, First Nations leadership and delegates voiced their opinions, concerns and preferred strategic options for advancing respect and enforcement of First Nations rights. • First Nations want Canada to honour its’ constitutional obligations that affirm First Nations inherent rights, Treaty rights and title. • First Nations leadership and delegates expressed shared concerns including: First Nations rights are Inherent rights and are not negotiated through agreements, settlements or arrangements. • A number of foundational elements/principles emerged from the Forum dialogue that could be applied to work between First Nations and Canada going forward. Date Prepared: April 25, 2019 9

Foundational Elements to Guide the Way Forward 1. Affirm the pre-existing sovereignty and inherent Title of First Nations. Inherent rights and Title already exist and have been affirmed. Our rights as peoples and nations cannot be extinguished, and do not owe their existence to any other level of government. 2. First Nations laws, languages, cultures and governance and all jurisdictions must inform acceptable solutions. 3. The honour of the Crown means that the Crown’s words must meet its’ actions and the Crown must keep its promises, including the full implementation of treaties and agreements. 4. Value the equality of peoples as in the Guswentah (Two Row Wampum Treaty). 5. Fair and inclusive collaboration means making decisions together not in isolation. 6. Clear, transparent communication must restore, not erode trust. 7. Organize the federal government and it’s practices so that the UN Declaration guides reconciliation. Reconciliation does not mean compromise, it means moving forward in a respectful way. Date Prepared: April 25, 2019 10

First Nations Leading the Way Forward • First Nations have called for a First Nations-led process to determine the path of decolonization and self-determination Rights Holders Regions National Date Prepared: April 25, 2019 • Individual First Nations must be supported to give voice to the concerns and provide a mandate on the path forward. • Regional bodies must be supported to ensure a common level of understanding and participation. This will identify viewpoints from different provincial and territorial regulatory regimes and the various perspectives of different Treaty relationships. • There must be support for a common understanding of rights affirmation, including a national dialogue and funded regional communications. This will ensure that rights-holders' are the final arbiters of their own selfdetermination. 11

Asserting First Nations Sovereignty • A renewed nation-to-nation relationship between Canada and First Nations must be based on the affirmation of the pre-existing sovereignty and the inherent rights and title of First Nations. This means working in true partnership to improve health, well-being and economic prosperity of First Nations. • The Royal Commission on Aboriginal Peoples (1996) outlined the steps needed to transform the relationship between Indigenous peoples and Canada. Rebuilding our nations requires new capacity including new institutions, infrastructure, human resources and economic stimulation. • First Nations have called for support in developing nation-building processes (law-making, institution building, research of traditional governance systems, etc. ) in order to assert our sovereignty and inherent rights. Date Prepared: April 25, 2019 12