[Originally Published in the First Nations Strategic Bulletin: Volume 2, Issue 5 - June 30, 2004] OPINION: The B.C.

First Nations Plummet - A Source of Political Imbalance in National Indian Politics and Crown Government Relations
By Russell Diabo The First Nations Summit has continually collaborated with the federal government in order to implement national federal self-government, land claims and fiscal policies, both in B.C. and across Canada. This is not in itself surprising, since the First Nations Summit was a co-creation of the federal and provincial governments, as well as a number of prominent B.C. Indian leaders.

Who is the Summit?

In tracing the history of their own organization, the B.C. First Nations Summit identifies the beginning in October, 1990, when, leaders of First Nations met with the Prime Minister of Canada and then with the Premier and Cabinet of British Columbia urging the appointment of a tripartite task force to develop a process for modern treaty negotiations in BC. The federal and provincial governments agreed and on December 3rd, 1990, the BC Claims Task Force was established by agreement of the Government of Canada, the Government of British Columbia, and representative leadership of the First Nations. The First Nations were a minority partner in this endeavour with three members on the BC Claims Task Force and then what became the BC Treaty Commission (BCTC), with one member each from the federal and provincial governments. And it was from this beginning that the First Nations Summit was born. The FNS is comprised of a majority of First Nations and Tribal Councils in BC and provides a forum for First Nations in British Columbia to address issues related to Treaty negotiations as well as other issues of common concern. As one of the principals of the treaty negotiation process along with Canada and BC, the First Nations Summit plays an important and ongoing role in ensuring that the process for conducting Treaty negotiations is accessible to all First Nations. However, the Summit does not participate in negotiations at individual treaty tables. Each treaty table is autonomous in its negotiations. Since the National Indian Brotherhood was re-organized into the Assembly of First Nations in 1982. The B.C. region, particularly the coastal, lower

mainland and Northwestern sub-regions who would later form the B.C. First Nations Summit, has exercised undue influence within the Assembly of First Nations decision-making structures and over the elections of subsequent National Chiefs and their respective election platforms. Under the existing AFN Structure the First Nations Summit represents a source of political imbalance at the national level that should be addressed by the First Nations Leaders from the other regions across the country. The Nation-to-Nation relationship is being negatively impacted by this political imbalance, because each First Nation has its own set of facts and political-legal history with the Crown governments. Each First Nations has rights that are now constitutionally protected, and for most First Nations it is the people who are at the top of the decision-making process, not the Chiefs. However, the First Nations Summit is working with the federal government both inside and outside of the AFN structure and meetingsto promote the federal policies, legislation, principles and standards, including the establishment of National Institutions, which are structures designed to fulfill long-term federal policy objectives . Although these governance, land claims, and fiscal Institutions and legislation have largely been developed in Ottawa by the federal bureaucracy for application mainly in British Columbia, they are also the structures the federal government intends to use as part of their management framework in their relationships/negotiations with First Nations in other regions of Canada as well. These are top-down approaches, which are designed to pressure First Nation leaders to convince their own First Nation peoples to ratify once and for all time final agreements. Dont forget about thealbeit heavily censoredrelease to the media of the secret Pre-Budget Deck prepared for Indian Affairs Minister, Andy Mitchell, before the February 2004, federal budget. The secret Deck warned of the looming tidal wave of major fiscal pressures due to the escalating costs of self-government, land claims and litigation. The Deck recommended that the federal government develop a resourcing action-plan geared toward promoting self-reliance. This may sound good on the surface, but what is meant in Ottawa terminology is to settle land claims as quickly and cheaply as possible. It also entails offloading the ongoing costs of programs and services onto provincial and municipal governments, as well as, onto the First Nations themselves, by encouraging and supporting their migration off-Reserve into towns and cities. The members of the First Nations Summit have so far, borrowed approximately $200 million in loan funds through the BCTC process, to negotiate land claims and self-government, and with such indebtedness the federal and provincial governments seem to have the First Nations Summit

membership over a barrel. Once the meter is running the government uses these loans as leverage to try and force First Nations to make concessions.

Federal Treaty Formula

One First Nations organization did an analysis of the basic formula in Comprehensive Claims negotiations, which states: Loans: The government loans you money to negotiate. In BC, the formula for negotiations is 80% loans, 20% grants. In other parts of the country, its 100% or slightly different variations. These loans are deducted from the final amount. In his 2001 Report, the Auditor-General of Canada expressed concern that, for some First Nations, the amount of their negotiation loans is approaching 50% of what they expect to get in a final settlement. Cash: Although the cash component of a final agreement is called compensation, it does not relate to the amount of Aboriginal lands and resources that were taken in the past. Its not even tied to existing natural resource revenues from the territories in question. Instead, it is a fixed amount of around $25,000 per person (depending on how much settlement land is involvedmore land, less cash.) For a First Nation of 500 members, this would amount to a one-time payout of about $12.5 million, in exchange for giving up Aboriginal Rights and Title forever. To put this amount into perspective, consider how much activities like hydro, forestry, mining and tourism generate per year within each First Nation territory. This amount does not include how much has been taken out of each First Nation territory since the 1600s or the 1800s, when European settlement and encroachment occurred, or how much will be taken out in the future. Land: The land component, like the cash component, is within a range. From the most recent figures that have been made public [circa March 2002], First Nations in BC are being offered on average about 9.29 hectares (23 acres) per person, in addition to any Reserve lands already held. There is some variation depending on provincial government policy, whether the lands are urban, rural, or remote (the more urban the less land). The amount of land is also balanced against how much cash is on the table (more cash, less land). All Reserve status is to be given up. Settlement lands are to be held in fee simple by a First Nation corporation, and subject to federal, provincial and municipal laws. The corporation will replace the First Nation as the land holding entity, and this will formally break the link between the First Nation and its Aboriginal Title. These lands will become part of the provincial land system. These lands will become subject to taxation. (see below)

Advisory Committees: Instead of having a direct role in the management of land and resources within their traditional territories, First Nations would be members of advisory committees on carious issues like fish and wildlife, trapping, forestry, tourism, economic development, etc. These advisory committees are made up not only of First Nations, but often include third parties like tourist outfitters, sports hunters, etc. In most cases they would be subject to provincial laws, and will be subject to provincial policies and practises , since Canada takes the position that the provinces own the land. These committees appear geared to become the sole consultation mechanism for other governments when dealing with the First Nations, and final agreements are worded in such a way that any legal requirements for consultation with First Nations through other means are removed. Taxation: As part of a final agreement, First Nations are being required to give up their tax immunity. Based on the offers made in BC, the GST is phased in over 8 years, and income tax is phased in over 12 years. Also, First Nations would be expected to tax their own citizens directly to pay for services. Similar conditions apply to the agreements which have been reached in Northern Canada. Extinguishment/Conversion: As already mentioned, the federal government refuses to recognize Aboriginal Title. But just in case, it wants to get certainty out of land claims agreements, which means that the only rights a First Nation will have at the end of the day are those rights which are listed in the final land claims agreement. Any undefined Aboriginal and Treaty rights will be converted into settlement agreement rights that are spelled out n the agreement. The federal and provincial governments, based on thei policies, have a veto over what these will be. The way the final agreements are worded, there are no surviving rights that future generations can rely on, except those rights that are spelled out in the agreement. Future generations are prevented from taking any legal action related to pre-existing Aboriginal ir Treaty Rights. Self-Government: If the province and the federal government agree, aspects of self-government can be built into an agreement, but only with sectors that are integral to their culture and identity, such as, education, child and family services, health, and policing. But even these things will be subject to federal and provincial control over programs and funding. As well, federal, provincial and municipal laws relating to lands will apply. Basically what is being offered is a form of municipal-style government, under provincial and federal control. Programs and Services: Most final agreements contain a provision that says that First Nations will continue ot be entitled to programs and services that are made available to other First Nations from time to time. But, as most communities know, Canada has been working outside of the Comprehensive Claims Policy to reduce its responsibilities for programs

and services, devolving responsibilities and fiancial liabilities to First Nations and, in some cases, provincial governments. It has also been working towards having First Nations assume more of the costs of providing programs and services through own source revenues, and ultimately, taxation of their members. All of this fits in with the land and taxation provisions of the Comprehensive Claims Policy agreements, that provide for eventual taxation of members and their lands.

Whats Not on the Table!

The First Nations analysis document goes on to point out the limits of what Canada will talk about: Canada will not Recognize Aboriginal Title: or accept evidence to prove Aboriginal title in negotiations. The government says that it does not want to dwell on the past and it would rather exchange undefined Aboriginal and Treaty Rights for new rights that would come from federal and provincial legislation instead. This is even though the Supreme Court of Canada has recognized that Aboriginal Title exists, and laid out clear criteria for proving title. The Federal Government will not Provide Compensation: for previous infringements. This is even though the Supreme Court of Canada has clearly said that where Aboriginal Title has been infringed, other governments must pay compensation. Canada will not Protect First Nations From Provincial Governments: in cases where provincial policies are prejudicial to First Nation rights and interests. Even though provincial governments are hostile towards First Nations, Canada is not prepared to sacrifice federal-provincial relations for the sake of Indians. This is despite the fact that the Supreme Court of Canada has said that the federal government has the authority to protect Aboriginal title lands, even when they are within provincial boundaries.

Summit is Vulnerable
Their weak negotiating situation of the groups that comprise the First Nations Summit leaves them vulnerable to continuing to accept and cooperate with the federal governments policies, in order to keep the so-called treaty-making process, and the related funding alive, despite the fact that not one Treaty has been produced from the BCTC process since the process was established almost twelve years ago, because First Nation peoples keep rejecting the final offers. From the analysis above one can understand why this is so.

The Nisgaa Final Agreement is an exception, and it was negotiated outside the BCTC process. However, their Final Agreement also represents a compromise of their constitutionally protected (section 35) rights and key provisions of the Nisgaa Final Agreement are being used by the federal government as a template for negotiations with First Nations within the BCTC process and outside of B.C. The situation the members of the First Nations Summit have gotten themselves into, shouldnt be used by the federal government to prejudice the constitutionally protected (section 35) Aboriginal and Treaty Rights of First Nations not in the BCTC process. But the federal government is using the First Nations Summit. Consequently, there is good reason for First Nations outside of the BCTC process, and outside of the B.C. region, to closely examine the undue influence the First Nations Summit exerts at the national level through the Assembly of First Nations structure and meetings, and directly lobbying with the federal government. The First Nations Summit obviously has its own agenda, which is tied to implementing the existing federal policies on self government, land claims and fiscal relations.

Summit Controls Elections

In 1985, and 1988, Georges Erasmus was elected and re-elected as AFN National Chief primarily with the support of those groups that would come to comprise the First Nations Summit. This is the period when the Comprehensive Claims Coalition was formed to change the federal Comprehensive Land Claims Policy, and the constitutional talks ended without results. In 1991, and 1994, Ovide Mercredi was elected and re-elected as AFN National Chief primarily with the support of the core groups comprising the First Nations Summit. This is the period when the B.C. Treaty Commission process was established and negotiations under the federal Comprehensive Land Claims Policy started. Ovide Mercredi agreed to refrain from commenting on, or addressing, the federal Comprehensive Land Claims Policy at the national level, so that the federal focus would be on the madein-B.C. Treaty process. The 1997, AFN election was almost an exception, Phil Fontaine was elected as AFN National Chief with the support primarily from outside of the B.C. region, but with the support from First Nation Chiefs located within the South, Central interior of B.C., Fontaine had the momentum and the majority of Chiefs supporting him. The First Nations Summit had their candidate, Wendy Grant, concede the 1997 election only after Phil Fontaine agreed to support the B.C. Treaty Commission process as part of his platform. He agreed, even though he had

made an agreement with the B.C. south, central, interior First Nations to support their Aboriginal title and rights position. In 2000, Phil Fontaine lost the AFN election to Matthew Coon Come, when the First Nations Summit threw their support behind Matthew Coon Come, because Phil Fontaine had started to press the federal government to reform the federal Comprehensive Land Claims Policy so that the policy would be consistent with the Supreme Court of Canadas 1997 landmark Delgamuukw decision, which the First Nations Summit feared would disrupt their negotiations under the B.C. Treaty Commission process. Under Matthew Coon Come, the AFN dropped the national initiative to have the federal Comprehensive Claims Policy reformed to be consistent with the recent case-law. In 2003, Phil Fontaine was returned as AFN National Chief, with the First Nations Summit once again supporting him over Matthew Coon Come and Roberta Jamieson, because Fontaine agreed to support the B.C. Treaty Commission process and Bill C-23 (formerly Bill C-19) the First Nations Fiscal and Statistical Management Act. While Fontaines Getting Results election platform contained a section on: Implementing Treaties, Delgamuukw and Marshall, Through Resource and Revenue Sharing: Treaties that reflect our nationhood and rights. Marshall re-affirms our Treaty rights to resources and revenues. Delgamuukw recognized that Aboriginal Title over our traditional territories exists and that Aboriginal Title includes an economic component. A proactive claim settlement strategy driven by a strong First Nation driven policy framework. Phil Fontaines ability to deliver on this and other election promises to the First Nations Summit, and others, depends largely on the willingness of the federal Liberal government of Prime Minister Paul Martin to agree to reform the federal land claims policies.

Martin: Programs not Rights

The fact is, the federal Liberal government has no intention of reforming the federal land claims policies to be consistent with recent case-law, for the First Nations Summit or anybody else. The Martin government has limited its focus to structural and procedural changes, not fundamental policy reform of its self-government and land claims policies. Aboriginal Affairs fall under the theme of Strengthening Social Foundations and the Throne Speech made specific references to Aboriginal Canadians. The term Aboriginal Canadians, is intended to emphasize the Canadian citizenship-individual rights policy approach the Martin government is taking with the objective of assimilating First Nations.

As part of the Liberals social policy considerations, they are limiting the federal focus to the so-called Quality of Life issues of education, health, housing and economic development, not a rights-based agenda, addressing the long-standing scope and content of constitutionally protected (section 35) rights. The political-legal, constitutional matters of accommodating and implementing First Nations Inherent, Aboriginal and Treaty Rights are left to negotiations under Jean Chrtiens Aboriginal Legacy policies on selfgovernment, specific and comprehensive claims, among other policies. This places the membership of the First Nation Summit in a particularly tough situation, as the federal position is hardening to a take it or leave it offer at the Treaty tables.

AFN Office Take-Over

Getting back to the outcome of the 2003 AFN Election, Fontaine and his First Nations Summit supporters, acted swiftly to take over the AFN National Office in Ottawa. The then First Nations Summit Task Group Member, Herb Satsan George, also the then AFN-BC Regional Vice-Chief, and Manny Jules, former Chief and Chairman of the Indian Taxation Advisory Board (ITAB), were key players in the transition from Matthew Coon Comes to Phil Fontaines administration. Phil Fontaine and his supporters oversaw the reorganization of the AFN National Office to massively expand the staff complement in the Office of National Chief, versus the other staff in the AFN Secretariat. It is like there are two organizations in one, operating out of the same physical set of offices in Ottawa. Manny Jules became the AFN Chief of Staff until his conflict of interest in lobbying for passage of the Fiscal Institutions Bill, while an AFN staff member, came under increased questioning from Chiefs. Mr. Jules resigned around the time of the December 2003, AFN Confederacy Meeting, probably to avoid the issue being raised at the meeting. In addition to the reorganization Fontaine has already done at the AFN National Office, he has also launched the AFN Renewal initiative aimed at re-vamping the structure and Charter of AFN. To help steer the process, there are three B.C. appointees, and all three are from First Nations associated in one way or another with the First Nations Summit. Wendy Grant-John, CoChair of the AFN Renewal Commission, is a former INAC-BC AssociateRegional Director-General, and Neil Sterrit, and Ginger Gosnell were also named to be members of the AFN Renewal Commission. It should be noted that the mandate of the AFN Renewal Commission has not been officially endorsed by the AFN Chiefs-in-Assembly, which is arguably required by the AFN Charter.

Key Federal Appointments

Besides influencing the direction and structure of the AFN National Office, the First Nations Summit has obviously worked something out with Prime Minister Paul Martin, because a good friend of the First Nations Summit, the former B.C. INAC Regional Director-General, John Watson, has been appointed to head up the Aboriginal Secretariat in the Privy Council Office (PCO) in Ottawa. Moreover, as previously mentioned, Paul Martin is maintaining support for the Chrtien/Nault Fiscal Institutions initiative. The First Nations Governance Centre, was created last December 2003, as a fall-back plan by the then Minister of Indian Affairs Robert Nault, in order to assist in implementing federal self-government policy objectives for the time being. Robert Nault created the FNGC because the federal First Nations Governance Act failed to pass through Parliament before Paul Martin took over as Prime Minister. Paul Martin had promised not to proceed with the First Nations Governance Act during the Liberal Leadership race. The lead Champion that Robert Nault named to be the head of the First Nations Governance Centre, is Herb Satsan George, a former Executive Member of the First Nations Summit. Minister Nault chose well, as Satsan is someone with experience and skill in devising schemes with the federal government and then selling the package to First Nations, albeit always with the appearance of being sincere and thoughtful. The reality is, the First Nations Governance Centre is to be a training ground for administrators of so-called self-government authorities, driven by federal policy and guided by the development of national institutions. The First Nations Governance Centre will no doubt be working in harmony with the fiscal institutions initiative, which brings us back to Manny Jules, another prominent Champion of federal fiscal policies. Since leaving AFN as the Chief of Staff, Manny Jules has now popped up as a Spokesperson for the First Nations Fiscal Institutions. The Martin government intends to use these well funded National fiscal institutions to implement the self-government related fiscal policy of own source revenues, meaning the promotion of First Nations reliance on taxation and borrowing monies for capital projects and programs and services to off-set federal budget caps and cuts. A new player from the B.C. region is the AFN-BC Regional Vice-Chief replacing Herb Satsan George, who is Shawn Atleo, from Vancouver Island, a First Nations Summit stronghold. His First Nation is in the BCTC process.

Canada-Aboriginal Roundtable
Paul Martins Canada-Aboriginal Roundtable held in April 2004, set out his approach to assimilate First Nations into Aboriginal Canadians, by focusing on programs and services, while putting First Nations rights on the backburner as other issues. The B.C. First Nations Summit had key people attending the Roundtable: Shawn Atleo, AFN-BC Vice-Chief Wendy Grant-John, Co-Chair, AFN Renewal Commission Manny Jules, Spokesperson, First Nations Financial Institutions There were federal commitments to each of the National Aboriginal Organizations coming out of the Roundtable. For First Nations the AFN National Chief, Phil Fontaine was to work with INAC Minister, Andy Mitchell, to develop an AFN-INAC Joint Agenda. Building a Joint Agenda As the last issue of the Bulletin reported, AFN and INAC are working on the follow-up to the Roundtable with the development of a draft document entitled Building a Joint Agenda: Implementing the Commitments of the Government of Canada and the Assembly of First Nations, dated April 28, 2004. The draft Joint Agenda document proposes a bilateral AFN-INAC process as a structure to address issues coming out of the roundtable, but one glaring omission is the federal Comprehensive Claims Policy. In fact, Treaties are listed under a category in the document entitled Other Unresolved Policy Matters.

Summit Charter to AFN-AGA

During the First Nations Summit Meeting held June 9-11, 2004, Shawn Atleo, AFN-BC Vice-Chief, told the meeting that Robin Wortman would be organizing a charter flight to the AFN General Assembly scheduled for July 20-22, 2004 in Charlottetown, P.E.I. Phil Fontaine, AFN National Chief, arrived at the meeting and told the First Nations Summit that they were special to him and asked that they send a large delegation to Charlottetown, because he needs their support. So we can likely expect the First Nations Summit to show up in numbers and support their candidate for National Chief and his Joint Agenda, particularly since it will continue to entrench their B.C. regional negotiations. But given the hold the federal government has on the members of the First Nations Summit to compromise their constitutional rights, what does their role and influence in AFN mean for the rest of the First Nations outside of the BCTC process, and outside of the B.C. region?

What impact hasand willthe First Nations Summits direct lobbying and consultations with the federal government outside of the AFN structure and meetings have on national policies as they affect other First Nations-Crown relationships? How do First Nations interested in the recognition, implementation and protection of inherent, aboriginal and treaty rights get these important matters on the federal agenda? How do others protect their rights from the BCTC model, which affirms the very federal policy frameworks many First Nation peoples are opposed to? How can AFN be restructured to protect the diversity among First Nations and their relationships with Crown governments? In the end, all of these federal policies are based on a top down approach, which is premised on getting First Nation leaders to convince their members to accept the final offers from Crown governments as the best they could doFirst Nations peoples deserve way better than that!