Monday, May 23, 2011

Wikileaks Cable: Mohawks Borders, Land Claims, Treaty Rights

DE RUEHOT #0643/01 2331437
R 211437Z AUG 09
E.O.: 12958: N/A

¶1. (SBU) Summary: The recent imbroglio between the Canadian Border

Services Agency and the Mohawk community of Akwesasne over armed

agents at the crossing point on Cornwall Island, Ontario (reftel)

highlights again the complexity, lack of clarity, and evolving

nature of relations between the federal and provincial governments

and Canada's aboriginal populations. Slow progress on

self-government and land claims pose ongoing human rights

challenges. As long as Canada lacks a clear legal definition of

aboriginal titles and rights, effective mechanisms to resolve First

Nations grievances in a timely manner will remain elusive. End




¶2. (U) According to the latest census (2006), aboriginal Canadians

-- Indians, Inuit, and Metis (persons of mixed aboriginal and

European ancestry)) -- number almost 1.2 million, or approximately 4

pct of the total population. "Status Indians" (Indians with

federally recognized aboriginal status) constitute 60 pct of the

aboriginal population, Metis 33 pct, and Inuit 4 pct. The

aboriginal population increased by 45 pct from 1996 to 2006, nearly

six times faster than the non-aboriginal growth rate. The median

age of the aboriginal population is 27 years (compared to 40 years

for non-aboriginal peoples) and 31 pct is under the age of 14.

According to Statistics Canada, aboriginal peoples on average

experience poorer health outcomes, worse housing conditions, lower

rates of high school completion, and higher unemployment than the

non-aboriginal population. In 2007-2008, aboriginals accounted for

22 pct of the adult incarcerated population.

¶3. (U) The federal Department of Indian and Northern Affairs (INAC)

recognizes 615 First Nations (Status Indian) communities across all

ten provinces and two territories. Canada's third territory,

Nunavut, is an Inuit "homeland," in which 83.6 pct of the population

is Inuit. Approximately 60 pct of aboriginal people in Canada now

live off-reserve, up from 58 percent in 1996. Ontario has the

largest aboriginal population (21 pct of the provincial population),

but the four western provinces are home to 61 pct of the total

aboriginal population.

¶4. (U) The 1876 Indian Act is the principal federal legislation

defining aboriginal status, governance, and eligibility for federal

benefits and services. INAC is responsible for the administration

of the Act, along with another 58 laws relating to First Nations,

and shares responsibility with other federal government departments

for 17 other related statutes.



¶5. (U) As an alternative to federal stewardship under the Indian

Act, Canada acknowledges self-government as an "inherent" aboriginal

right within the meaning of section 35(1) of the 1982 Constitution

Act. Since 1982, the federal and provincial governments and

aboriginal groups have attempted to negotiate a clearer definition

of "aboriginal right" to add to the Constitution, but have failed to

agree. In 1995, the then-Liberal federal government began including

(in conjunction with provincial governments) proposals for

aboriginal self-government as part of negotiations on comprehensive

land claims as an alternative to potentially costly litigation.

¶6. (U) The "inherent" right of self-government does not grant a

right of sovereignty in the sense of international law, and does not

create sovereign independent aboriginal nation states. Rather,

federal guidelines underscore that First Nations exercise only

self-government under the Constitution. The Canadian Charter of

Qself-government under the Constitution. The Canadian Charter of

Rights and Freedoms also applies fully to aboriginal governments.

In 2005, the government of British Columbia entered into a "New

Relationship" with its First Nations based on accommodation of

aboriginal title and rights and acknowledgement of aboriginal titles

over much of the province. The B.C. provincial government

subsequently proposed a "Recognition and Reconciliation Act," but

has not yet tabled it in the legislature.

¶7. (U) All self-government agreements the federal government has

signed with First Nations differentiate jurisdiction as follows:

-- issues that are integral to distinct aboriginal culture (e.g.

governance, status, language, culture, education, health, social

services, law enforcement, resource management, taxation, and

economic development) fall under the exclusive administration of

aboriginal governments;

-- areas where primary law-making authority remains with the federal

and/or provincial government if in conflict with aboriginal law

(e.g. environmental protection, natural resource co-management,

penitentiaries, and emergency preparedness); and,

-- areas that are not integral to aboriginal cultures, or internal

to aboriginal groups, and where the federal government retains its

exclusive law-making authority, including national defense and

security, security of national borders, immigration, and

international trade as well as "other national interest powers" such

as regulation of the national economy, maintenance of law and order,

health and safety, and transportation. In 2011, the federal

government will also extend the Canadian Human Rights Act to First

Nations people on reserves (including those under self-government

agreements) for the first time.


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¶8. (U) Lack of a standard model for resolving comprehensive land

claims, self-government agreements, and the absence of a clear legal

definition of what constitutes an "aboriginal right" have resulted

in complex multi-year negotiations, a significant claims backlog,

and friction between aboriginal communities and the federal and

provincial governments. Even for completed treaties and agreements,

litigation may still occur. INAC is the lead department tasked with

negotiating and implementing land claims and self-government

agreements with First Nations on behalf of the federal government.

In 2003, some First Nations dissatisfied with the implementation of

their treaties formed the Land Claims Agreements Coalition. Whereas

the federal government regards completed comprehensive land claims

treaties and self-government agreements as, in principle, the

discharge of its obligations, members of the Land Claims Agreements

Coalition have underscored that they see such agreements as not an

end, but the beginning of new relationships, with ongoing federal


¶9. (U) According to INAC officials, court rulings have been the

principal "game-changers" in recognizing aboriginal rights and

giving aboriginal communities greater control over their own

decisions. However, since 2006 the federal government under Prime

Minister Stephen Harper has also promoted economic development and a

more business-oriented approach as a new direction in its relations

with aboriginal communities. PM Harper cancelled the 2005 Kelowna

Accord negotiated by the previous Liberal government, which would

have mandated federal spending of C$5 billion over ten years on

aboriginal social services. In June 2009, the federal government

launched a new "Federal Framework for Aboriginal Economic

Development," promising government collaboration, private sector

partnerships, skills development, and easier access to capital. In

August 2009, PM Harper used an Arctic tour to announce a new

economic development strategy and creation of a new Canadian

Northern Economic Development Agency (CanNor) in Iqaluit, Nunavut.

The government's "Northern Strategy" emphasizes the role of

aboriginal peoples in strengthening Canadian Arctic sovereignty,

protecting the environment, and promoting economic and social

development in the North.

¶10. (U) Some First Nations have also pushed to replace the Indian

Act with more modern partnerships. In July 2009, chiefs across the

country elected Shawn Atleo as the new National Chief of the

Assembly of First Nations on a platform of economic development,

self-sufficiency, and tackling poverty. Bands in Atleo's home

province of B.C. have built on land claims settlements, resource

rights, and self-government agreements to launch businesses and

generate new sources of revenue.



¶11. (U) Aboriginal leaders have insisted that land and control over

its resources are the key to self-sufficiency. There are two types

of aboriginal land claims. "Comprehensive claims" deal with

aboriginal rights and titles that have not previously been settled

by treaty or other means. In these cases, the federal government

negotiates new treaties. "Specific claims" deal with First Nations'

grievances arising from alleged non-fulfillment of federal

obligations under existing treaties or other legal obligations, or

from the way the federal government has managed First Nations' funds

or assets. Resolution may take the form of additions to existing

treaties, transfers of land, cash, or resource rights. In 2008, the

Qtreaties, transfers of land, cash, or resource rights. In 2008, the

federal government had more than 60 separate ongoing negotiations

for comprehensive land claims and more than 800 specific claims

remained outstanding.

¶12. (U) The Crown signed more than 70 treaties with First Nations

between 1701 and 1923. Subsequently, the federal government has

negotiated and ratified 21 additional treaties covering 40 pct of

Canada's land mass. The impetus for negotiation of comprehensive

land claims stemmed from a landmark 1973 Supreme Court of Canada

ruling confirming that aboriginal peoples' historic occupation of

the land gave them legal rights not previously subject to treaties

(principally in British Columbia, southern Alberta, and the Yukon).

The federal government established processes to resolve

comprehensive claims through negotiation in 1973 as an optional

alternative to costly litigation. It signed the first comprehensive

land claims agreement in 1975. The Constitution Act of 1982

(section 35 (1)) further "recognized and affirmed" the "existing

aboriginal and treaty rights of the aboriginal peoples of Canada."

¶13. (U) In October 2008, the federal government "retooled" the

previous specific claims process to establish a new independent

Specific Claims Tribunal to expedite cases. The Tribunal, composed

of six provincial superior court judges selected in consultation

with the Assembly of First Nations (Canada's largest aboriginal

advocacy group), has the authority to make binding decisions on

claims that have been rejected for negotiation, or where

negotiations fail, on claims up to C$150 million (approximately $140

million). It has not yet publicly registered any judgments.

¶14. (SBU) COMMENT: Canadian courts have been the primary drivers of

federal and provincial efforts to resolve aboriginal grievances,

both in imposing new obligations and in encouraging negotiations to

preempt litigation. However, as long as Canada lacks a clear

definition of aboriginal rights or a uniform model for negotiations,

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effective mechanisms to resolve aboriginal grievances in a timely

manner will remain elusive.



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Censored News is published by censored journalist Brenda Norrell. A journalist for 27 years, Brenda lived on the Navajo Nation for 18 years, writing for Navajo Times, AP, USA Today, Lakota Times and other American Indian publications. After being censored and then terminated by Indian Country Today in 2006, she began the Censored Blog to document the most censored issues. She currently serves as human rights editor for the U.N. OBSERVER & International Report at the Hague and contributor to Sri Lanka Guardian, Narco News and CounterPunch. She was cohost of the 5-month Longest Walk Talk Radio across America, with Earthcycles Producer Govinda Dalton in 2008:
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