My Canada includes rights of Indigenous Peoples.
Love it or leave it! Peace.

Thursday, August 19, 2010

'The duty to consult' ... Financial Post, National Post

'The duty to consult'

Julius Melnitzer, Financial Post · Wednesday, Aug. 18, 2010

Aboriginal rights issues are cutting a wide swath in the energy sector, touching everything from resource extraction to liquefied natural gas facilities, transmission lines and pipelines. So much so that one industry pundit has maintained that all of Canada's new supply sources for oil and gas have at some point been "tied up" with aboriginal rights claims.

Among the projects affected are the $50-billion oil sands development in Alberta, the $500-million Kitimat liquefied natural gas terminal project in British Columbia, and the Maritime pipelines project.

There's also the multi-billion-dollar Mackenzie Valley natural gas project on which may hinge the future of Canada's north. Originally expected to come online in 2007, it remains uncertain as to when gas will begin to flow.

Environmental concerns, political squabbling, cultural differences and divisions among the aboriginal groups became so acute that Imperial Oil stopped work in April 2005, citing "unreasonable demands" from the Deh Cho. The impasse ended later in the year, but only after the federal government promised $500-million to address aboriginal social and economic concerns.

The Supreme Court of Canada's "consultation trilogy" in 2004 and 2005 has been the prime catalyst for the emergence of aboriginal rights issues. The trilogy -- which consists of legal cases involving the Haida, Taku River Tlingit, and Mikisew Cree -- established that both federal and provincial governments had a duty to consult with aboriginal groups before making decisions that might adversely affect their asserted but unproven aboriginal rights.

"The duty to consult is triggered when the Crown knows or should know that its actions might affect constitutionally protected rights," says Wally Braul, an aboriginal and environmental lawyer at Fraser Milner Casgrain's Calgary office. "And the courts have made it clear that consultation is not just about blowing off steam. It's a results-oriented process that includes both information and response components focused on accommodating the competing interests at stake."

That means governments cannot -- without prior consultation -- grant or renew licences, leases or other privileges to third parties or take action on their own that could infringe on potential aboriginal rights. While governments can delegate the implementation of their duties to third parties in the private sector, the ultimate burden of ensuring that meaningful consultation occurs remains with the Crown. What is meaningful depends on the circumstances, including the strength of the aboriginal claim and the seriousness of the adverse effects on that claim.

"With the trilogy, resource harvesters became aware that aboriginal rights had a direct impact on the way they did business," says Tom Isaac, an aboriginal rights lawyer at Mc-Carthy Tetrault's Vancouver office.

Indeed, allocation of Crown rights and the development process proceed fairly simultaneously nowadays. Currently it is rare for Canadian governments to allocate resources without consideration of how the resource will be developed and whether the development will affect aboriginal rights.

In the real world, this means that the Crown off-loads the consultation process to those seeking the grants to access resources.

"Applicants requiring government approval for a permit or licence may not know if aboriginal consultation is required," says Ken Clark, an aboriginal lawyer at Lang Michener's Vancouver office. "They may also not know what aboriginal groups should be consulted; when the consultation should occur; what information they should provide; how long the consultation process might take; whether the consultation will result in approval; what changes might be required, and whether an approval, if granted, might be set aside by a court." So unless they get the right advice, project developers may find themselves on a slippery slope.

"In the last few years, the adequacy of the consultation process has been challenged in court by various aboriginal groups," Mr. Clark explains. "A frequent result is a determination that the consultation process was not adequate, and a direction that the Crown go back and consult some more."

Companies wishing to avoid dilemmas of this kind must make sure not only that they get the delegated consultation process working properly, but also that the Crown has done its job by putting a proper process in place.

"After all, the Crown bears the ultimate responsibility for ensuring that consultation occurs, but if the process is one that isn't fair and transparent and doesn't withstand judicial scrutiny, it's the developer who suffers the consequences," Mr. Isaac says.

The courts have made it clear that they would prefer to see some kind of policy guiding the consultation process, but governments have not been quick to respond.

"The feds tried and created some interim guidelines but they remained interim and are not generally followed," Mr. Clark says. "Alberta has made an effort but without much success. Earlier this summer, Saskatchewan did come up with guidance that looks reasonable and providesclarityandcomes closest to the kind of regulatory regime that the Supreme Court of Canada has been referring to in its decisions."

Meanwhile, the legal rulings are evolving rapidly.

"It's very important to align a project with the very latest guidance that comes from the courts," Mr. Braul says.

At the same time, First Nations' and other aboriginal groups are increasing their expectations and becoming more sophisticated in their approach to the issues. "It's no longer just a matter of respecting aboriginal rights and traditions," Mr. Isaac says. "Rightly or wrongly, there is a growing expectation of some form of economic benefit flowing from projects to First Nations."

The practical challenge for the resource and other sectors, then, is how to measure, manage and mitigate the risk in the consultation and accommodation process.

"Every jurisdiction in the country is different in its approach, every sector is different, and the First Nations, Metis and Inuit are all different in their approaches. So you're not going to get cookie-cutter answers, and that won't change until we get the kind of political leadership that will lend greater clarity to the process," Mr. Isaac says.

Read more:

Monday, August 16, 2010

Indian Affairs imposes new Chief and Council on Barriere Lake on the basis of a half-dozen nomination ballots

Friday, August 13, 2010

Indian Affairs imposes new Chief and Council on Barriere Lake on the basis of a half-dozen nomination ballots: “This looks like tyranny,” say community spokespeople

Kitiganik, Rapid Lake, Algonquin Territory / – The Department of Indian Affairs has announced that a new Indian Act Chief and Council have been elected by acclamation in the community of Barriere Lake, after between 6 and 10 nomination mail-in ballots were received by a government electoral officer.

But even the acclaimed Chief, Casey Ratt, has announced he will not take the position, refusing to break ranks with the community’s broad opposition to the Indian Act band elections that the Department of Indian Affairs has been trying to impose on Barriere Lake.

“The overwhelming majority of our community remains opposed to the Indian Act band election regime. Almost two hundred people signed a resolution in May rejecting it and supporting our traditional selection process. Does the Minister of Indian Affairs really think a handful of nominations for a Chief and Council can let them get away with eradicating our system of government?” says Tony Wawatie, a community spokesperson. “The government has lectured us about democracy. But how can this be democratic if it goes against the will of our entire community? This looks more like tyranny.”

Today, National Chief of the Assembly of First Nations Shawn Atleo sent a letter to Minister of Indian Affairs John Duncan demanding that he rescind the section 74 order to impose band elections, and that he respect the community’s reconciliation process, which will ultimately result in a new Customary Chief and Council being selected according to Barriere Lake’s traditional selection process.

“I strongly urge you to reconsider the decision of your predecessor to invoke section 74,” Atleo wrote. “Trying to force the community into the Indian Act election system, when they seem to be overwhelmingly opposed, will only increase tensions and the risk of confrontation with your Ministry.”

“The decision to impose section 74 band elections is an attack not only on our traditional system of government, but on our culture, language and way of life, which are all connected to our traditional system of government,” says Marylynn Poucachiche, another community spokesperson. “We will not accept it. Until our basic and legitimate rights are respected, we will escalate our actions, including not allowing any resource extraction within the Trilateral Agreement Territory.”

The government had announced the elections would originally take place September 23rd, 2010.

Barriere Lake’s inherent right to customary self-government is protected by section 35 of the Canadian Constitution and is enshrined in the United Nations Declaration on the Rights of Indigenous Peoples. A May, 2010 report by the Standing Senate Committee on Aboriginal Peoples affirmed that First Nations have the right to maintain control over their internal affairs and be free to pursue their vision of customary government.


Media contacts:

Tony Wawatie, community spokesperson: 819 – 860-4121

Marylynn Poucachiche, community spokesperson: 819-441-4923

Thursday, August 12, 2010

Myths and truths about the 'Iroquois':
Pre-Iroquois and Iroquois evolution in Southern Ontario

Prologue: Apologies and invitations

I write this blog/article accompanied by my sincere apologies to my many Haudenosaunee* ('Iroquois') friends of the Six Nations, for some of its tone is very hurtful to them and even savage. It is, unfortunately, in part the harsh truths about the myths taught to and learned by generations of Canadian schoolchildren and indeed all of the people of Southern Ontario and Canada for over two centuries now. It is time the myths were exposed, and the truths were told, and this article attempts to do so in a way that can be understood by students and the general public across Ontario and Canada.

In this first draft, there may well be some errors in fact, some references missing, etc., and I respectfully invite readers to inform me of these via blog comments or email ( I will seek to verify and correct for accuracy and provide appropriate sources, from both documentary ('European')and oral (Indigenous/Aboriginal) traditions, as new or more accurate information becomes available to me.

In this first draft also, I hope only to provide enough of a re-orientation of perspective on the 'Iroquois' to generate such discussion, even public controversy, to begin the process of public re-education in Ontario and Canada - 'doing a 180'(degree shift) as I have experienced it myself over the past four years of association with the intelligent, strong and kind people of the Six Nations. Though I am an educational researcher myself (M.A.Sc. Psychology, UW 1982, retired 2007), I do not claim to be an 'objective' source because good scientists and researchers know that no human being ever is. Those who claim to be 'entirely objective' are attempting to deceive you. Good researchers lay out their biases upfront, allowing readers to include that in their consideration. I am sharing what I have read, heard, seen and experienced and the conclusions I have come to myself. I openly admit that in doing so my motivation to persuade people to see what I believe is the truth, so that readers also experience 'a 180' degree shift in perspective.

Background: Global myths about the 'Indians' of Canada

1)We own  Canada because we beat the 'Indians' in war
There were no 'Indian' wars in Canada/British North America.
The Indigenous/Aboriginal Nations were never conquered by us - neither by the French nor by the British. We did not "win" the rights to the lands of Canada.
Indigenous Nations were mostly our allies in battle, and still are to this day.
We - France/Britain/British North America - made peace treaties with Indigenous Nations* in
Canada, beginning with the Two Row Wampum Treaty of Alliance*.

In becoming a nation, Canada assumed full legal responsibility for those peace treaties.
The treaties stand as law in Canada to this day, repeatedly upheld and clarified by the Supreme Court of Canada, and  forming the basis for current 'land claims' negotiations among other issues.

The harsh truth about the myths
As a child of the '60's I recall, as do most former school children in Southern Ontario throughout the 19th and 20th centuries, being taught that the 'Iroquois' were a fierce, aggressive, frightening and murderous people in the history of Southern Ontario. We were told that their 'real' home is in the (implied aggressive) United States in New York, and that they first came to British North America/Canada from New York only because the British brought some of them here in 1784 after the 'American Revolution' (War of Independence). While Britain/Canada had needed and used their fighting prowess, the tone of the teaching and learning of Southern Ontario schoolchildren for the two centuries following that time has always been that it was somewhat to be regretted that the British/Canadians had found it necessary to ally themselves to such savage people, and entirely regrettable that they ever arrived in 'Canada'.

The reason for the negative tone toward them was ostensibly because in Canada they stood out as being strong ("aggressive"), continuing their 'savage' ways by making war on peaceful aboriginal nations, whose 'real' home was Southern Ontario, most notably that they 'destroyed' the Huron (Wendat/Ouendat/Wyandotte) community entirely by slaughtering them to extinction, and by burning associated Catholic priests ("Martyrs") at the stake.

The truths
First of all, the people called the 'Iroquois' are in fact the Haudenosaunee people of the Five/Six Nations - the 'people of the long house', Hau-de-no-sau-nee. 'Iroquois'

1) Let's start at the myth of 1784 as the date of 'arrival' of the Haudenosaunee people of the Six Nations.

Iroquoians become recognizable in the archaeological record of southern Ontario about A.D. 500, with the appearance of Princess Point sites and maize agriculture in the lower Grand River valley. After A.D. 1000, Iroquoians lived in longhouse villages situated in the interior, north of Lake Erie, Lake Ontario, and the St. Lawrence River. This synthesis of the Iroquoian occupation of southern Ontario prior to European contact focuses on origins, settlement patterns, demography, subsistence, and sociopolitical organization. It highlights the significant contributions to Iroquoian archaeology that have been made by government and private consulting archaeologists over the last two decades.

(Bold and underline emphases added.)
The first humans, the Clovis people, arrived in Niagara Region almost 12,000 years ago, around the time of the birth of the Falls, when the land was tundra with spruce forests. These nomadic hunters camped along the old Lake Erie shoreline, in small dwellings, and left little behind except chipped stones, likely used to hunt caribou, mastodons, moose and elk.

By 9,500 years ago deciduous forest covered southernmost Ontario, supporting wildlife like deer, moose, fish and plants, enabling small groups to hunt in the winter, coming together into larger groups during the summer, to fish at shorelines and at the mouths of rivers.

About 2,000 years ago, the Woodland Period brought Iroquois culture in southern Ontario. These peoples began agriculture based on crops of corn, bean and squash, which supported a boom in population and a rich culture with small palisaded villages in which extended families occupied individual longhouses. They developed ceramics technology and forged strong inter-village alliances.

By the time the European explorers and missionaries arrived in the early 1600s, the Iroquoian villages had elected chiefs and were allied within powerful tribal confederacies. The Neutral Indians were the leaders of a group of ten tribes of the Iroquois Nation. Other tribes included the Seneca, Mohawk, Oneida, Onondaga, Cayuga, Huron, Petun, Erie and the Susquehannock. The French explorers , gave this Indian tribe the name "Neutrals", because of their position and status as peace keepers between the warring Hurons and Iroquois. Unfortunately, inter-tribal warfare was made worse by the intrusion of the Europeans.
The traditional society of the Rotinonshón:ni (Iroquois), "The People of the Longhouse," was a densely settled, matrilineal, communal, and extensively horticultural society. The Rotinonshón:ni formed a confederacy of five nations.Generations before historical contact with Europeans, these nations united through the Kaianere'kó:wa* into the same polity and ended blood feuding without economic exploitation, stratification, or the formation of a centralized state.

A work in progress ... to be continued ...

* I encourage readers to find additional resources of their own. However, I caution you that accounts written by our U.S. friends will refer only to the 'Iroquois' within their boundaries, indicating that the Five/Six Nations resided below the Great Lakes. Canadian resources are, thus, preferred for information about the locations of the Haudenosaunee people within the boundaries of present day Canada. Also, today's legal realities are somewhat different above and below the border. U.S. resources are, however, just as valuable as Canadian ones for information about laws, customs, etc. Readers are encouraged to apply critical thinking skills and to 'consider the source' as well as the content.
For comparison and consideration, two (of several possible) maps of the location of the Five Nations:

* Haudenosaunee is also written Rotinonshón:ni. Such differences are attributable to the task of translating an oral language (Mohawk) to a written phonetic one. For example, the beginning sound in their language is somewhere between our 'r' and 'h' sounds. Likewise, other sounds are somewhere between 't' and 'd', 'k' and 'g', etc., leading to some identification confusion for non-Mohawk speakers.

* I personally use the terms "Indigenous" (natural, of this land)) and "Nations" respectfully. Canada uses 'Aboriginal' (meaning out of or from the original people) and still refers to them as 'Indian' in some law and policy documents, so those terms appear here too in certain contexts, but they are not preferred. In Canada we do not tend to call them 'tribes' as in the U.S. Prior to European contact, they were various Nations of people, with local, inter-local and global trading practices and laws, treaties, religions, villages, homes, families, leadership and legal organizations, etc. There is nothing in Indigenous nor Canadian law that has changed that legally to this day: Canada's 'Indian' Act that sought to do so is widely recognized to be not legal, and is proposed for massive changes or extinction* itself. It has not yet been tested in the Supreme Court of Canada. The Canadian government would suggest that 'negotiations' are necessary.
 Clearly, I am taking a political position on this issue, but one based soundly on past decisions of the Supreme Court of Canada. granny

* Two Row Wampum
* Also Gayanashagowa The Great Law of Peace that joined the five nations - Mohawk, Oneida, Onondaga, Cayuga, Seneca - into one Confederacy as the Haudenosaunee:
Historians once thought the Iroquois Confederacy started in the 1500s, but a more recent estimate dates the confederacy and its constitution to between 1090 and 1150 CE. These estimates were based on the records of the confederacy leadership and astronomical dating related to a total solar eclipse that coincided with the founding of the Confederacy.
My Canada includes rights of Indigenous Peoples.

Two Row Wampum Treaty

Two Row Wampum Treaty
"It is said that, each nation shall stay in their own vessels, and travel the river side by side. Further, it is said, that neither nation will try to steer the vessel of the other." This is a treaty among Indigenous Nations, and with Canada. This is the true nature of our relationships with Indigenous Nations of 'Kanata'.