An Analysis of the Modern Day Treaty Proposal

Negotiations 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 anything.
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 Propaganda.

Hereditary Chief/Mi'kmaq Grand Council

ESGENOOPETITJ (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.

I 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 Nations.

When 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.

This 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."

The Moncton Times and Transcript, Wednesday, January 24, 2001:

"Nault 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."

I 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.

I have broken down the documents into five main points that will be identified as:

I. Jurisdiction
II. Language
III. Divide and Conquer
V. Propaganda

Highlighted below are actual quoted sections or recommendations as taken from the December 5, 2000 Federal Document.

I. Jurisdiction

"I 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 said.

"It is about jurisdiction, it is about building a First Nations economy, it is about a political, economic and social relationship."

The Halifax Herald Limited, Wednesday, January 24, 2001

If 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.

Part 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 be negotiated.

The 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.

The 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."

Part 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.

Part 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.

II. Language

Recommendation 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.

Language setting Out the Treaty

The 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.

Such 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 Nations.

The 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).

There 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 DIAND.

An 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.

This 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.

E.g. Webster's dictionary defines modify as:

As to make less extreme: MODERATE,

To limit or restrict the meaning of…

To make basic or fundamental changes in, often to give new orientation to, or to serve a new end.

Using 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.

III. Divide and Conquer

In 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 treaty commissions

The 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.

The 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.


Recommendation 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.

Part 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.

One 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).

V. Propaganda


1. Communication Goals:

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.

2. 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 Action Plan

3. Key Messagcs:

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 relationship.

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 First Nations.

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.

4. 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.

5. 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 TB)

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.

This 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.


Over 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.

As 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 the persecutor.

The 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?

Our 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

Let 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.

Kwegsi (Lloyd Augustine)

Hereditary Chief/Mi'kmaq Grand Council


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