An Analysis of
the Modern Day Treaty Proposal
began 29 January 2001 between representatives of First Nations from
across Canada and Ottawa over fishing rights and treaty implementation.
The federal government is allegedly keen to sign new three-year deals,
usually sweetened with hundreds of millions of dollars worth of cash,
new fishing equipment and training, in exchange for conditions restricting
when natives can fish and requiring them to have proper DFO tags. Its
aim has remained the same, to adapt the colonial legacy to modern conditions.
The ESGENOOPETITJ First Nation (Burnt Church) is a key target, given
other First Nations want to see this dispute settled before signing
In a recently-released analysis, "An Analysis of the Modern Day
Treaty Proposal (Self-assimilation)", Lloyd Augustine submits what
he sees to be the dangers that lie ahead for First Nations in the memorandum
addressed to the federal cabinet dated 5 December 2000 entitled, "Long
term response to R. v. Marshall Phase II." He addresses five major
points: Jurisdiction, Language, Divide and Conquer, Consultation and
KWEGSI (LLOYD AUGUSTINE)
Hereditary Chief/Mi'kmaq Grand Council
(1 February 2001) -- Let me introduce myself, my name is Kwegsi, also
known to many as Lloyd Augustine. I am a hereditary chief of the Mi'kmaq
Grand Council. I reside in the community of Esgenoopetitj, Kespekoagig
Sagamawoti, Mi'kmaqik this place is also commonly called Burnt Church,
New Brunswick, Canada.
am not a lawyer and don't claim to be of legal mind, but I have read
and seen a lot of agreements between Canada, Province and the First
Nations of Mi'kmaqik. I have seen a lot of what is Mi'kmaq and Maliseet
being traded of for seasonal work and a few dollars in these agreements.
I received much experience from interpreting these agreements and finding
the actual meaning of what the government was/is doing to First Nations.
I was/am appalled to see what was/is actually being given up by First
I received the federal document dated December 5, 2000 memorandum to
cabinet, I decided to go about interpreting the real intent of the government
and to show the dangers that lie in store for the First Nations. My
goal is to point out as clearly as I can the real intent of this document
to the Indian leadership within our communities.
is my synopsis of what I see to be the dangers that lie for First Nations
in the federal memorandum addressed to the cabinet dated December 5,
2000 "Long term response to R. v. Marshall Phase II."
Moncton Times and Transcript, Wednesday, January 24, 2001:
is trying to place the 18 Peace and Friendship Treaties, signed between
the British and the Mi'kmaq and Maliseet nations between 1725 and 1761,
in a modern context. He has described it as a self-government agreement,
with the goal of building a First Nations economy. While he is not trying
to rewrite them into one agreement, he said the objective is to sign
self-government agreements with the region's natives."
will begin with this quote from the Moncton Times and Transcript to
show that the second phase of an attack which is an onslaught against
our treaties has begun, and as you read along further you will understand
what I mean. Let me also explain that self-government agreements are
based on the ideologies of the foreigners and no way reflect that of
the self-governing ways of our people. These agreements would reduce
our communities to the status of municipalities and only empower the
federal and provincial governments to strengthen their jurisdiction
in our territories.
have broken down the documents into five main points that will be identified
III. Divide and Conquer
below are actual quoted sections or recommendations as taken from the
December 5, 2000 Federal Document.
would describe it as a self-government agreement, a comprehensive agreement
very similar to what we are doing in some of the other provinces where
it is not about land, it is not about compensation," Mr. Nault
is about jurisdiction, it is about building a First Nations economy,
it is about a political, economic and social relationship."
Halifax Herald Limited, Wednesday, January 24, 2001
it is not about land or about compensation to First Nations then the
jurisdiction Nault is talking about is jurisdiction of the Canadian
government and the province on Mi'kmaq and Maliseet territory as described
below in part 74.
74. Measures to implement the treaty relationship would not be protected
under Section 35 of the Constitution Act, 1982. However, comprehensive
tripartite negotiations on aboriginal and treaty rights would respect
federal and provincial jurisdiction and a reference to protection of
the final agreement under Section 35 of the Constitution Act, 1982 would
jurisdiction that the federal government is talking about has nothing
to do with First Nations's self-determination; the focus is more on
self-assimilation. Aboriginal title and rights will not survive exclusion
from the new framework agreements and they will be transformed into
contractual or treaty rights. Our treaties will be minimized from nation-to-nation
treaties into domestic agreements, where Canada will have full control
of the rights and title of First Nation's individual communities.
federal government totally ignores the fact of it's own statement where
it makes reference to the Atlantic treaties: "….. they do
not involve a surrender or cessation of lands and resources."
29. It is unknown at this time whether there are other rights in the
1760-61 Treaties beyond the rights affirmed in the Marshall decision.
It is also uncertain whether there are other valid rights and outstanding
federal obligations, contained in other historic Peace and Friendship
Treaties in the Maritimes. The Mi'kmaq and Malaise's entered into some
18 treaties with the crown beginning in 1725. These historic treaties
established "peace and friendship" between the parties but
unlike most historical treaties in Canada, they do not involve a surrender
or cession of rights to land and resources. As a result, the Maritime
Provinces are in this unique situation where treaty rights may co-exist
with aboriginal rights and title.
30. In February 2000, DOJ completed a risk assessment regarding the
existence of unextinquished aboriginal rights and title in NS and NB.
DOJ concluded that, if proven to have existed, there is a likelihood
of continuing aboriginal rights, including title, in those two provinces.
DIAND has also commissioned a study on historical use and occupation
of the land by Mi'kmaq and Maliseets of Quebec and PEI. DOJ has been
asked to examine the issues of extinquishment of aboriginal rights,
including title, in those two provinces.
5. Minister of DIAND, in consultation with the minister of justice,
is authorized to develop language setting out the treaty context for
use in general public statement or in the preamble of framework agreements,
such language to be approved by the federal steering committee on comprehensive
claims and self-government.
setting Out the Treaty
development of language setting out the treaty context could facilitate
negotiations with Mi'kmaq and Maliseet First Nations by showing that
Canada recognizes and respects the treaty rights affirmed by SCC in
the Marshall decision and is committed to building sustainable relationship.
FN leaders have stressed that this is vital to maintaining support for
the long-term implementation of the Marshall decision.
language could be used as a general political statement between Canada
and Mi'kmaq and Maliseet First Nations. It could also be developed in
the preamble of framework agreements. Such preamble language would set
out the context in which the agreements are being entered into and would
avoid any specific recognition of treaty rights to any particular First
language gathered would take into account the statements on the treaty
relationship set out in gathering strength and the response of the government
of Canada to the report of the treaty commission, statement on treaty
issues: treaties as a bridge to the future (1999).
is a risk that language setting out the treaty context could raise expectations
of aboriginal groups elsewhere in Canada for the negotiations of similar
language recognizing the importance of the treaty relationship. This
issue may be addressed as part of our initiatives being developed by
example of language setting out the overall context for negotiations
is the statement on aboriginal crown title, negotiated by Canada, the
province of BC and the First Nations' summit following the SCC dwlgamuukw
decision in 1997. Each of the principles set out in the statement reflect
something said by the SCC in Delgamuukw and contributed to maintaining
support of the treaty negotiation process.
is a process where terminology or ‘language' will be much different
than what was used in the past. Language such as extinguishment, surrender
and cede will probably not be used, but instead they will be replaced
with limits, modification, restrictions and modify. This new terminology
is far more dangerous than the former terms that were used. Whereas
First Nations will be more likely to be fooled into thinking that they
have finally pulled the wool over the Federal Government's eyes or even
a false belief that the government is finally acting in good faith.
This new terminology will do even more harm to First Nations.
Webster's dictionary defines modify as:
to make less extreme: MODERATE,
limit or restrict the meaning of…
make basic or fundamental changes in, often to give new orientation
to, or to serve a new end.
a play of words that contain a hidden legal contextual meaning, there
is a greater danger of our people being fooled to giving up many rights
for nothing in return.
Divide and Conquer
regards to treaty commissions three things are to take place:
Federal government is in control
Federal government sets the mandate
Initiate divide and conquer tactics by establishing provincially based
commissions' initial mandate would focus on key activities described
below. However, as national policies on treaty issues evolve, the Minister
of DIAND may incorporate new functions to the Mi'kmaq and Maliseet treaty
commission(s), as appropriate.
other divide and conquer tactic that will be used will be the one that
has been the most effective, That is, individualizing FN communities
and pushing, imposing, or bribing Indian communities into signing agreements.
8. The minister of D.I.A.N.D. and D.F.O. Are to report to the cabinet
on the progress of the strategy by the spring of 2003 and Canada will
adept a communication reports.
22. Mi'kmaq and Maliseet First Nations have been consulted extensively
over the last year, both in fisheries negotiations and through the APC
of First Nation Chiefs. First Nations have made it clear that they want
to begin the long-term implementation of Marshall and expect greater
access and management of the fishery and other economic opportunities
to address their aspirations, post-Marshall.
of the things we have to be leery about in consultation is that it fulfills
one of the criterions of SCC decision on Badger. The other thing is
after the federal governments feels that it is not going anywhere with
phase II then it will justify that proper consultation was given and
it is time to start imposing regulations on First Nations for the betterment
of the whole (Canada).
To communicate how the measures under this initiative will address Marshall
by building stronger and more self-sufficient FN Communities.
To show that government is meeting its obligation in a spirit of dialogue,
co-operation and respect.
To provide effective communications management for issues and contingencies.
Links to government messages and campaigns:
The approach and initiatives outlined conform with priorities set out
in the Speech from the Throne and in Gathering Strength: Canada's Aboriginal
Government is meeting its obligations in a spirit of dialogue and cooperation
Government has launched Marshall Phase H strategy to boost aboriginal
access to fisheries and economic development, and to build durable treaty
Government is committed to building trust and creating a treaty relationship
that will be fair to all. In a new and forward-looking partnership with
Program builds upon progress to date (including hundreds of new jobs
and renewed hope) in aboriginal Communities.
Increased stability for aboriginal and other interests will flow from
treaty implementation and multiyear agreements.
Fisheries conservation will remain paramount, under federal authority,
with increased co-management by aboriginal and non-native fishers: established
commercial fishers will receive fair treatment.
Target Audiences and Reactions
Scenario assumes initial announcement of Chief Federal Negotiator with
broader mandate: later announcement of overall program and funding;
and subsequent announcements of program elements
In the short term, Marshall communities should show mainly positive
response, though with some mistrust. Other aboriginal communities may
seek similar benefits; some will say program remains insufficient regarding
self-government and resource access. Commercial fishers will welcome
any increase certainty but still fear damage to resources and incomes.
While general public will mainly welcome the idea that the new strategy
can build co-operation and avert problems, divisions will remain apparent,
some welcoming the promise of progress for a disadvantaged population,
others feeling that government is simplistically throwing money at a
problem. In the long term, program should gain momentum with subsequent
announcements and communication efforts.
Key Communication Elements
Immediately announce Chief Federal Negotiator with new mandate to launch
long-term process. Outline major objectives of strategy but omit funding.
Announce major program components, as funding is approved (Budget or
Announce program elements as articulated over coming months.
Throughout the program, continually make known regional and local aspects,
e.g. new fisheries, training of aboriginal fisheries officers, economic
development projects and Strengthening of treaty relationships.
While stressing progress through news media, prepare thoroughly for
issues and crises
Set a positive agenda by visibly demonstrating results, with strong
efforts through aboriginal and other media and a variety of Communications
efforts and products.
Highlight programs and processes involving dialogue and visible co-operation.
tool will be extremely effective when it comes down to winning the support
of the public to the side of the federal government and once again make
First Nations look unreasonable.
500 years ago our ancestors welcomed strangers that were lost at sea.
Hungry and destitute, we fed these strangers and taught them to survive
in our environment. Many of these strangers that came to our homeland
were adventurers, clergymen and Jesuit priest.
the years progressed many more came fleeing from persecution and a way
of life that was being imposed upon them. These strangers had a chance
to taste our way of life, and though they might have called us savages
in their diaries, log books, and journals, they also referred to our
way of life and how we conducted ourselves in a positive light, giving
us the name "the people of god." But even after tasting what
we had to offer they lost sight of what they fled from and started imposing
the very same system that they left behind and the persecuted became
year today is 2001 and nothing has changed since their first arrival.
They have done nothing but spread lies and hate to our people. They
made treaties with us with no intent of honoring them. Today they talk
about modern day treaties, and a point needs to be made that if they
couldn't honor the old treaties, what makes us think that they would
honor the new ones?
way of life when the first colonist/occupiers arrived was focused on
sharing, caring and giving for the collective. Those ways still exist
for us First Nation's people. Let us as the original inhabitants of
Turtle Island bring back these qualities before the government finally
annihilates us as a people. It does this by assimilating us into a system
that is bent on doing nothing but great harm to us and to the seventh
generation of yet unborn
us as leaders of our people take the initiative of re-establishing our
own laws, with the blessing and total involvement of our people, and
in the process not forgetting those first immigrants that were lost
at sea, or those who we have come to know as our neighbors. Let us start
behaving as we claim to be as NATIONS… SOVEREIGN NATIONS.
Chief/Mi'kmaq Grand Council