Summary Of Discussions

Aboriginal right, Aboriginal title and treaty right

• recognition, negotiation, implementation of access to traditional territories and resources
• honour/implement rather than appeal section 35 court decisions (e.g. recognition of generic section 35 right, and negotiation of specific right)
• get rid of the Indian Act
• recognize First Nations as true governments and provide a voice in Parliament
• recognition legislation

Acknowledge that agreements and their implementation form the starting point of an ongoing, evolving relationship. For example,

• Canada recognizes the inherent right to self-government and starts now to build a new relationship
• get rid of extinguishment, establish living relationships
• ongoing process to be built more on two-way recognition/relationship building, less on transactions
• Canada must implement treaties according to the spirit and intent of the treaty relationship
• treaties need to evolve over time
• implement recommendations from the Royal Commission on Aboriginal Peoples (RCAP)

Make adjustments to negotiation processes to reflect the above re-orientation and improve outcomes. For example:

FIRST NATIONS BREAKOUT GROUP

The First Nations breakout group followed a facilitation process where the participants provided input in the following areas:

• participant key messages;
• identification of critical issues;
• essential elements/vision statements;
• principles and objectives for moving forward; and
• ways of knowing we are making progress.

Participant Key Messages

Through over 60 key messages the participants suggested that improvements in the negotiations environment could be made through a number of shifts in attitude, policy and process. Some key messages include:

Policy and legislative adjustments to shift to negotiations based on the mutual recognition of First Nation inherent Aboriginal and treaty right, particularly as recognized in section 35 and through decisions of the Supreme Court of Canada. For example:

• Government of Canada to recognize the sovereignty and self determination of First Nations and implement international treaty relationships based on respect and co-existence
• base negotiations/implementation on the mutual objective of recognition/continuation of Aboriginal nations, as well as the recognition of Aboriginal right, Aboriginal title and treaty right
• recognition, negotiation, implementation of access to traditional territories and resources
• honour/implement rather than appeal section 35 court decisions (e.g. recognition of generic section 35 right, and negotiation of specific right)
• get rid of the Indian Act
• recognize First Nations as true governments and provide a voice in Parliament
• recognition legislation

Acknowledge that agreements and their implementation form the starting point of an ongoing, evolving relationship. For example,

• Canada recognizes the inherent right to self-government and starts now to build a new relationship
• get rid of extinguishment, establish living relationships
• ongoing process to be built more on two-way recognition/relationship building, less on transactions
• Canada must implement treaties according to the spirit and intent of the treaty relationship
• treaties need to evolve over time
• implement recommendations from the Royal Commission on Aboriginal Peoples (RCAP)

Make adjustments to negotiation processes to reflect the above re-orientation and improve outcomes. For example:

• the process of negotiation can and should be transformative, changing the way governments and individuals look at each other (this is good in itself) as well as leading to real change in relationships and between governments
• negotiations must be between politicians (e.g. Prime Minister and higher Cabinet)
• get negotiations out of the INAC and into PCO or other departments
• a treaty implementation policy to be overseen by a federal government central agency (not INAC)
• negotiations more transparent, less complicated, less adversarial
• more inclusive participation
• be equals at the table, level playing field
• Canada to send empowered negotiators to negotiation tables (e.g. limited power to say yes)
• establish pre-negotiations and negotiations rules that identify problems and model solutions
• need for effective and efficient alternative dispute resolution mechanisms, and find creative ways to resolve impasses at negotiating table
• negotiations information sharing for First Nations/Aboriginal table negotiators
• arm’s-length, independent funding agency for negotiations
• involve UN in nation-to-nations discussion

Respond to the needs of First Nations women, non-status Indians and Aboriginal people in urban, rural, remote/northern circumstances. For example:

• gender-based analysis/inclusion of First Nations women through capacity building strategy
• clear policy with reasonable membership codes that identify dual citizenship for women and children that would ensure right preserved and recognized
• more women visible at all levels
• inclusion of Aboriginal people (urban, rural, off reserve, women, Metis, etc.)
• address citizenship issue (registration, beneficiaries)

Critical Issues

Working with the facilitators, the issues identified by the participants were grouped into eight critical issues. The participants discussed both policy changes and adjustments to processes and mechanisms that would be required to address the critical issues. Discussions also included specific consideration of the needs of women, non-status Indians, and First Nations people in urban, rural and remote/northern locations.

1) Recognition of right (including extinguishment, certainty and implementation)

To support negotiations based on the recognition of right, the participants identified process and mechanism changes such as:

• developing a generic list of right/powers with exclusions identified up front, certain exclusions would have to involve the provinces/territories being at the table on those issues (at a later date);
• developing a negotiation and implementation body separate from INAC that has a right recognition and implementation mindset, and a mandate to deal with other government department issues, benefit sharing, interim protection measures and consultations; and
• new funding approaches for self-government/treaty implementation based on the real costs of running a First Nations government.

The new or changed policies required to allow for these changes involve:

• a policy shift that recognizes that negotiations are based on the fact that the Aboriginal party comes to the table with specific right at the onset;
• a self-government focus built on the recognition and reconciliation of a list of standard powers that First Nations are assumed to have in self-government agreements;
• policy statements and recognition act/legislation must focus on self-government/federal powers, and recognize principles of nationhood and no extinguishment;
• support for capacity building from a First Nations perspective to ensure that ongoing training in government administration is available prior to the effective date of agreements; and
• this will require significant funding, further research/needs assessments and consideration of a national training facility.

The crosscutting lenses could be applied by ensuring that section 35(4) relating to the equality of right between women and men is noted in all agreements.

2) Clarification/definitions of Aboriginal right (identified as an implementation issue)

To support the definition of Aboriginal right the participants identified process and mechanism changes to support participation by all parties (e.g. Aboriginal, Crown/federal/provincial/territorial). This would be accomplished through out-of-the-box thinking and short-and long-term strategies for:

• recognizing Aboriginal sovereignty
• a process to educate each other as to how we are going to coexist
• a unique non-juridical process within a specific time frame

The new or changed policies required to allow for these changes involve:

• joint Aboriginal/government design of a recognition instrument involving new and existing policies and processes, and including periodic joint review
• mobilizing the political will for the recognition and implementation of historic treaties
• this would be facilitated by flexible policy that could accommodate diverse needs and interests among Aboriginal peoples across Canada, establishing an arms-length body to address unresolved issues, and exploring the role of provincial governments in the process
• establishing a facilitated mechanism within the Government of Canada where a joint understanding/agreement can be developed on how to move from recognition of generic right to specific right, on who the right holders are, on how to secure federal and provincial political commitment, and determine which issues (e.g. natural resource transfer agreements) to include

The crosscutting lenses could be applied by examining the reconstitution of the original Aboriginal nations, particularly through the re-establishment of traditional teachings and concepts where all Aboriginal peoples are respected (e.g. regardless of residence, status or gender).

3) Implementation (including right, lack of mandate, agreements, court decisions and types of treaties)

To support improvements to the implementation phase of negotiations the participants identified process and mechanism changes relating to:

• consistency in approach, particularly with historic Treaty First Nations, to ensure common understandings and review of provisions;
• enacting a legislative framework for implementing principles and obligations;
• establishing an independent body to track process and resolve disputes (e.g. binding arbitration, international dispute resolution/special rapporteur);
• securing a mandate for substantive right-based discussions; and
• joint First Nations and federal government assumption of responsibility for accommodating needs of First Nations off-reserve (e.g. access to education in their language).

These process and mechanism changes could be supported by jointly developed legislative or policy changes (e.g. comprehensive claims policy) that provide for:

• an ongoing relationship instead of certainty/finality;
• a policy to address numbered treaties, and implementing treaties through self–government;
• incorporation of court decisions and Auditor General’s reports;
• PCO oversight role for how Aboriginal right are respected by federal departments;
• consideration of expansion of current role for overseeing Charter compliance; and
• a federal mechanism (other than INAC) to oversee Government of Canada implementation responsibilities.

4) Overlap

To address issues created by overlapping claims, the participants identified changes that could be pursued in three areas.

i) Create processes where First Nations can work out geographic overlaps among themselves through

• a First Nations dispute resolution process where no internal agreement can be reached
• securing agreements that provide resources sufficient to build internal capacity
• a starting point when the nation must determine its citizenship

ii) Find ways to involve the government in the resolution of the issues

• recognize historic First Nations sharing of territory and resources rather than require exclusivity
• modify population-based funding approaches that encourage competition
• utilize the honour of the Crown as a guide to preventing governments from using overlaps to create delays
• create consultation/accommodation policies acceptable to all parties
• draft provincial/territorial and First Nations memoranda of understanding on how to address/harmonize trans-boundary First Nations’ claims

iii) Implement joint processes to communicate and engage third party interests through

• jointly developed communication strategies to combat fear mongering and emphasize the government-to-government character of negotiation processes
• supporting third party involvement while not being driven by pressures for third party development

5) Relationships (consideration of Crown/not just INAC, jurisdiction, balance of power, third party and political will)

The participants indicated that the fragmented approach of the Crown and conflict of interest situations this creates for the ministers, needs to be addressed. This situation could be changed through

• letting section 35 drive policy and legislation (e.g. duty of the Crown) and creating a separate section 35 minister, reporting to the Prime Minister, with a separate budget and department, with responsibilities for relations with the provinces, territories and third parties, and the ability to provide independent funding for negotiations
• joint analysis/review/redesign of policy regarding ministry negotiations and agreements (e.g. inherent right policy, litigate or negotiate)
• joint and independent report card to Parliament regarding progress in this area
• challenging third parties, as treaty beneficiaries, on how they can help make progress
• culturally appropriate gender-based analysis mandates within policy and legislation

The unique needs of First Nations women, non-status Indians, and First Nations people living in urban, rural and remote circumstances would be addressed, including culturally appropriate gender-based analysis mandates, within policy and legislation.

6) Inclusiveness (including issues of equal access, all groups and balance)

The participants particularly noted that communities are often still in crisis as indicated by conflict between traditional and imposed modern electoral systems; the often undefined role of Chief and Councils; and the impact of social ills such as poverty, violence/abuse and addictions on attitudes about inclusiveness. Process and mechanism changes required to deal with these issues include finding ways to:

• involve the whole community, whether they are at home or away from home
• recognize, respect, formalize and empower the role of Elders in sharing teachings, guiding the community and meeting with youth
• define roles of community
• implement First Nations’ policies on how the equality of right between women and men (our own section 35.4) will be applied
• provide/secure proper levels of funding to support urban centres, the establishment of Elders’ councils at all levels, women’s organizations, partnering with other Aboriginal organizations, and the participation of youth in developing First Nations policies
• use National Gatherings of all nations to re-establish nation-to-nation protocols (e.g. urban embassies, people moving into the territories of other First Nations)
• separate funding for urban and mechanisms to support mobility (e.g. move to different town and go to the bottom of the housing list)

The participants also indicated that the unique needs of First Nations women and Aboriginal peoples living in urban, rural, and remote/northern circumstances (e.g. marriage, alliances, adoptions, kinship ties, roots and relationships) could be addressed by:

• respecting, including and listening for understanding within, women’s voices in all processes
• establishing and involving current First Nations urban centres/offices and inter-First Nations’ protocols for services, etc.
• having other governments recognize First Nations systems of identifying, defining and recognizing their own citizens

7) Financing (including issues relating to social\economic\health, length of time to negotiate, capacity building and loan policy)

The participants identified a number of financing process and mechanism changes. The participants also discussed funding in terms of fiscal relations. Examples provided include:

• still have to address equity of funding (power imbalance) on each side, need an independent body
• eliminate loan funding for treaty negotiations
• loan forgiveness/grants as part of an agreement on mutual goals to reach agreements/settlements
• compensation for infringement/land and resources redress
• apply principles from Williams and Okanagan cases to support funding for negotiations, and need own benchmarks to measure transformative change based on First Nations values not federal government policy

In terms of fiscal relations, which go beyond the receipt of project and program funding, the participants noted that:

• federal ministers need to be prepared to talk to First Nations leaders as they do provincial premiers on revenue/resource sharing, equalization, etc. to address imbalance in access to, and benefit from First Nations lands, territories and resources
• need to shift entrenched thinking within bureaucracy that is driven by business model (get the cheapest deal at the cheapest cost) toward a focused requirement for transformative change

These changes can be accommodated through approaches such as:

• involving public sector unions, private sector and church groups to assist in bringing about change in thinking by officials
• changing how Treasury Board and other central agencies measure success (e.g. performance indicators for officials based on socio-economic conditions)
• incorporating gender-based analysis
• utilizing mechanisms like Nisga’a government to ensure inclusion/voice of citizens living away (off reserve)
• funding and funding mechanism that includes off-reserve members
• inclusion, changing mindset to assert responsibility for off-reserve members and women and adapting program and service delivery based on First Nations definition of selves
• moving legislative tools to First Nations away from Canada, must examine role of section 88 of the Indian Act, provincial law (e.g. child welfare)
• examining the contingent right nature of the current inherent right policy
• policy recognition that self-government is primarily a bilateral First Nations-Canada issue
• removing standard of needing provincial concurrence with a settlement within the self-government policy
• changing federal policy that sees section 91(24) of the Constitutional Act, 1867 jurisdiction limited to First Nations on reserves
• funding for land claims negotiations process (e.g. funding to support consultation and new interim measures arising from Taku and Haida cases)

8) Legislation (including a recognition act, new royal proclamation, declaration, and enabling legislation)

Legislative approaches touched upon the principles, application and criteria that should guide their development. Specific examples included:

• self-government (Aboriginal) recognition act
• act to cover existing treaties and areas of no treaties in a way to recognize right
• consistency/fit with the UN Draft International Declaration on the Right of Indigenous Peoples

These can be accommodated through jointly developed mechanisms that affirm nation-to-nation approaches and do not derogate from existing treaties. Other examples of how to achieve change in these areas include:

• commitment of the Crown through Order in Council
• declaration based on principles consistent with the integrity of Royal Proclamation (without revisiting the Royal Proclamation)
• declaration that sets the parameters for the establishment of new policies that must reflect past work on principles and process (e.g. Royal Commission on Aboriginal Peoples, Penner Report, B.C. Treaty Commission Task Force, etc.)
• shift from status quo to recognition that First Nations also have authority
• reaffirmation at historic treaty signing locations (e.g. Niagara, Batoche, Sault St. Marie, etc.)

The unique needs of First Nations women, non-status Indians and Aboriginal peoples living in urban, rural, remote/northern circumstances can be met through:

• funding/resources to reach out to all constituents
• communication plans and strategies to include all people and third parties
• understanding and recognizing the portability of right (responsibilities do not stop at reserve borders)
• nation-by-nation policies on how all members are looked after (outside the Indian Act)

Essential Elements/Vision Statements

The vision statements developed by the eight table groups stressed compatible and consistent messages that suggest that improving the negotiations environment in a way that addresses the key messages and resolves the identified critical issues would result in:

• changed attitudes among a better informed and supportive public
• comprehensive, fair and flexible processes and agreements that build on successes in other negotiations and provide mutual benefits
• recognition of all section 35 right (of all Aboriginal peoples)
• First Nations jurisdiction and control over land and resources adequate to their needs
• First Nations assumption of their rightful place in Canada

Additional suggestions for a future vision included references to a House of First Peoples (Parliament) so that Aboriginal peoples have access to power, and reconstruction of the true historical and Aboriginal nations.

Principles and Objectives for Moving Forward

Approximately 30 statements on principles were generated with significant emphasis on several key areas such as:

• mutual recognition
• mutual benefit
• recognition of sovereignty
• peaceful coexistence
• reconciliation
• government-to-government/nation-to-nation negotiations
• inclusion of traditional values (e.g. belonging, sharing, roles and responsibilities, respect, responsibility to the land, etc.)
• development at the community level
• federal government must not offload its responsibilities to Aboriginal peoples/First Nations/provincial/territorial governments

The principles were supported by approximately 40 objective statements that provide insight into how the principles could be applied and what will result from their application, including:

• positions based on outdated concepts (e.g. denial of right, doctrine of discovery) are replaced
• Supreme Court of Canada decisions become real and transformative change happens
• section 35 is the foundation of government activity
• creation of stable governments able to withstand the challenge from within and without
• treaties/agreements must be living documents to reflect that relationship
• irrevocable parliamentary, declaration recognizing First Nations’ sovereignty and inherent right
• language in treaties/self-government agreements reflect the government-to-government relationship
• inclusiveness achieved through providing access to negotiations for all Aboriginal peoples of Canada
• resulting agreements are inclusive

How Will We Know Progress is Being Made?

The breakout group participants identified indicators of progress reflecting the scope of attitudinal, policy and process reform; the degree of achievement on such matters as compensation, self sufficiency and political representation; and the quality of the follow-up to this roundtable. Examples provided include when:

• comprehensive claims policy is updated to match the rule of law and constitutionalism (inherent right policy)
• there is consensus on guiding principles for relationships/honour of the Crown
• the public becomes better informed (e.g. public awareness campaigns)
• a central senior agency is created (e.g. section 35 relations) to ensure the letter, spirit and intent of agreements are implemented
• there is inclusion (process available for all Aboriginal people)
• legislation is jointly developed
• the February 2005 and future budgets reflect all proposals produced in roundtable sessions
• Prime Minister makes statement with detailed strategy for implementation of roundtable recommendations in concert with First Nation leadership
• there is independent funding for negotiations
• Aboriginal women have reclaimed their rightful role and status in the community
• a report on results is presented to Parliament

Table of Contents

The documentation contained on this website does not necessarily represent the views of any government or National Aboriginal Organization. The purpose of this website is to share information related to the Canada-Aboriginal Peoples Roundtable: background papers, Facilitator's sectoral and final reports, agendas and media announcements.

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