Breaking Down the Indian Act with Russell Diabo

-Follow Russell Diabo at http://twitter.com/russdiabo
-First Nations Strategic Bulletin http://epe.lac-bac.gc.ca/100/201/300/first_nations_strategic_bulletin/index.html

Hi everyone,

I want to take a moment to wish everyone a very Happy New Year! Times they are a changing and I'm sure that most of you are feeling the movement in one way or another. If you are Native, you are probably on the front lines of this change, even some non Natives are too. If you live elsewhere in the world, you've probably not been exposed to the massive transformation taking place in Canada over the past couple of weeks. Human rights are at an all time low over here and a grassroots movement called Idle No More (#idlenomore) has been gaining momentum. I've spent a lot of time over the holidays in discussion with Native and Non Native people, either explaining what the movement is all about and what can be done. Everywhere I go these days, it seems like I'm debating or explaining or informing people on the Indigenous/Canadian relationship. Now, I'm not an expert, so I went to the closest expert to me and in an effort to expand awareness and provide insight, I've interviewed Russell Diabo, First Nations Policy Analyst. It is a long interview so for those with short attention spans, you can watch it in pieces. For the rest of you, grab a coffee or tea and enjoy. Remember, this is one person's perspective only. It is intended to continue the conversation and inform those who want to know more. - Jennifer Podemski

Hi everyone, I'm Jen Podenski,

and i just wanted to present the following interview to you,

in an effort to expand awareness and utilize some of the tools & resources that i have,

that i've grown up with,

one of them being Russell Diabo, who is my step-dad,

but also very knowledgeable...

and i guess what i'm about to share with you

is kind of a snippet of some of the things that we talk about around the dinner table every so often,

and especially with the rise of the grassroots movement Idle No More,

i feel it really necessary to address some of the bigger more complex issues

from a very simple perspective

because now more than ever -and i'm sure many of you native peope out there can relate to this-

um, i think a lot of racism is coming our way, ignorance, a lot of fear is coming our way

because of the movement, this incredible revolution that is happening.

And it's important that we don't get lost in our explanations.

I sometimes feel really inundated by questions, and i don't know how to answer them.

So this was my way of i guess giving something to the greater movement,

not just Idle No More,

but the greater movement, the Indigenous movement of the world, coming up and resurging,

and i would love to see a Canada, i would love to see a world,

that worked hand in hand and in partnership with its Indigenous people,

and together we can become stronger.

So that's what this is about, um, i won't go on any more,

but this is Russell Diabo, and I hope you enjoy it.

Russell Diabo, I'm a member of the Mohawk Nation at Kahnawake,

and my experience is... I've got a Bachelor in Arts and Native Studies,

and I worked with the Assembly of First Nations two times,

and the National Native Brotherhood one time.

And I'm currently working with three bands in western Quebec.

But I've worked with bands and tribal councils in British Columbia as well.

And um that's basically my experience,

practical work experience dealing with First Nations policy.

This is an issue around terminology,

people need to be aware that within the canadian government,

they use terminology to describe different people,

for example,

canada's constitution of 1982 talks about the rights of Aboriginal peoples,

meaning Indians, Inuit, and Metis.

And canada has a history of the Indian Act,

where y'know, Indians have been identified y;know, all the different Nations have been described just as Indians.

Even though there's about 50 to 60 different Indian nations.

And of course there's the Metis, who are mixed bloods, mainly from the Prairies,

but there are others who identify elsewhere.

And of course the Inuit up in the north.

But canada has now introduced this term called "Aboriginal Canadians"

where they're lumping everyone together,

and focussing on citizen, canadian citizenship.

And downplaying the aboriginal side.

So "First Nations" is a term that was developed in the 1980's, by Status Indian organizations,

to address the concept of two founding nations that was being put forward by canada.

Meaning, the French and English speaking peoples,

saying that they were teh two founding nations.

So First Nations was coined to say "no, we are the first nations. the English and French came after".

I think that I would describe the situation of First Nations in canada

as being one of being in a colonial situation,

because canada is still using the Indian Act as the main statute or law to control and manage Indians,

status Indians, or First Nations,

and that law goes back to 1876,

and although it's been amended from time to time,

it's still being used to control and manage Indians, like I said.

And that's a colonial relationship.

That's what has kept Indians in poverty

and kept them from enjoying the benefits of their lands, traditional lands and resources,

and even having a say really in how their reserves are managed

because under the Indian Act the Minister has 75% discretionary authority over Indians.

What people have to understand is there's two parts to the constitution.

There's the old part,

in 1867 when canada got its constitution from england,

it was called the British North America Act of 1867.

That's where the powers were divided between the Federal government and the Provincial government,

and the Federal government under that constitution

has powers over Indians and lands reserved for Indians.

So they have exclusive Legislative authority to pass laws over Indians and Indian lands.

And that section, it's called section 9124

and that's the law that they used to create the Indian Act.

Now provinces have Section 92 powers

and they have powers over natural resources and education and wildlife and things like that,

ao that's where First Nations, Indian First Nations, get caught in the middle

between the Federal and Provincial jurisdictions.

Now, in 1982 a new constitution was adopted with Section 35.

And that's very important because that's supposed to be

the future relationship of aboriginal peoples, including Indians, or First Nations,

was supposed to be based on Section 35.

And that of course means that they have to recognize indigenous laws

and work with indigenous peoples.

But canada had constitutional talks in the 1980's and didn't...

they were supposed to identify and define the meaning of Section 35 of aboriginal treaty rights,

which are recognized and affirmed according to the constitution.

Those talks ended in failure,

and so there's been legal and political uncertainty as to the meaning of aboriginal treaty rights,

yknow, Section 35 rights.

The courts have started to lay out legal tests,

whihc require a lot of evidence,

which costs millions and millions of dollars to prove,

and most First Nations don't have it

so the government has been taking advantage of that

by coming up with unilateral policies on land claims and self government,

and they basically making offers at negotiating tables, take it or leave it offers,

knowing full well that more First Nations can't go to court to challenge the government,

so those become the only game in town.

And those agreements are meant to, yknow, restrict, limit or terminate First Nations rights in the long run.

And so again that's a colonial relationship,

and they're using, like I said, 9124 instead of Section 35

as a basis of their relationship with First Nations,

and other aboriginal peoples.

I've written about [Canadian Prime Minister] Harper launching a First Nation termination plan,

and what my contention is, that the government's objective was to empty out Section 35 of the constitution,

yknow, recognizing aboriginal treaty rights,

emptying that out of any legal or political meaning

by getting First Nations to sign onto agreements basically to self-terminate their rights,

to compromise their rights,

their Section 35 rights

in exchange for these rights to find in these agreements,

and the terms and condition fo those policies yknow, basically turn First Nations into municipalities.

Yknow, if they agree to them, they have to give up their reserves, change their tax status,

basically become a municipality within the canadian confederation.

And they're doing that through what's called this "results based approach" to these negotiating tables.

Yknow, comprehensive claims and self government tables.

There's 92 of them across the country.

Because I've been informed the Blood tribe was one, making it 93,

but they pulled out saying they're not negotiating a self government agreement any more.

So that leaves 93 [92?] tables across canada

representing hundreds of Bands across the country.

And the government's results-based approach is to say

either agree to our policies and settle under them, or we're going to drop your tables from negotiation.

So that's one thing they're doing.

The other thing they announced, these were all announced on September 4th 2012,

the results-based approach.

They also announced they're capping and cutting the funding to provincial territorial organizations,

which will cripple their advocacy,

the ability of the Chiefs to meet and plan

to deal with government legislation and policy and other actions of the federal and provincial governments.

They also announced that they're getting rid of advisory services for tribal councils and bands,

which will cripple their ability to analyse legislative or policy initiatives, or economic development

occurring on traditional lands, the impacts from that.

So they're doing that on top of the suite of legislation,

where they have about yknow 8 bills amending the Indian Act,

even though the prime minister said at the Crown-First Nations gathering

that they weren't going to unilaterally get rid of or amend the Indian Act.

So obviously he didn't keep his word there

because after that Crown-First Nations gathering, in January 2012,

they've introduced these bills into the House, to amend the Act.

So between the suite of legislation and these policy, the policy framework the government has,

amounts to terminating, yknow, eventually terminating the rights of First Nations, the collective rights.

Well the treaty making process in canada goes right back to contact,

because the earliest treaties are the Wampum Belts,

for example the Two Row Wampum that the Haudenosaunee entered into

with the Dutch and then the British.

That evolved into what's called the Covenant Chain relationship.

And there was also a series of peace and friendship treaties

that started in about 1750,

two out in the Atlantic,

but also from 1760 to 1764 in what's now Quebec

there were peace and friendship treaties

bringing in the former First Nation allies with the French into the Covenant Chain relationship with the British.

And, yknow, 1760, that's when those peace and friendship treaties started,

then in 1763 of course there was the Royal Proclamation of King George III,

yknow, which recognized the pre-existing rights of Indians,

and described the colony in Quebec, Rupert's Land and Indian territory,

so it laid out some territorial definitions,

but it also made it clear that Indian lands could not be taken without Indian consent.

There had to be public meetings, yknow, for that purpose.

So that started the basis.

And they also said in the Royal Proclamation

that Indians couldn't give their land up to anybody but the Crown.

So in other words Indians couldn't sell it privately to white settlers or anybody.

So in their Canada, teh British took up a fiduciary obligation

to protect Indian interests from trespasses of settlers,

which they failed miserably at, but those promises are made in the Royal Proclamation.

And those are reconfirmed in I would say a major treaty in Canada in 1764, the Treaty of Niagara.

And that's Wampum belt that you may have seen,

the chiefs, they had it with them when they tried to get into the House of Commons on December 4th.

There was a replica of that treaty belt,

and that represents the Treaty of Niagara,

where they brought together the Haudenosaunee and Anishinaabe Nations into an alliance with the British.

So that started the treaty making process that occurred throughout Ontario,

through the pre-confederation, before 1867 period,

and right up to the numbered treaties,

which governed the prairies, treaties one through eleven.

So those are considered to be sacred agreements, from the First Nations side, with the Crown or the government.

And with the new constitution coming in in 1982,

Canada has become the successor state from England to honour those treaties,

because there was a court case where the treaty First Nations tried during patriation,

to stop the patriation process,

but Justice Dedding [sp?]in the British courts issued a decision

basically saying that Canada had a right to patriate the constitution,

but they should honour the treaties "as long as the sun shines and the grass grows" [“…for as long as the sun shines, the grass grows and the rivers flow”]

And so the British parliament passed the Canada Act,

which gave Canada its constitution in 1982,

which was signed into law by the Queen on April 17th of 1982.

And that's where we have to i think agree as to the meaning of what Section 35 is,

because canada's been trying to dictate it from their side,

and i think we have to push back and say

no, Section 35 recognizes our inherent aboriginal treaty rights.

i guess you could use that as a metaphor,

i mean, it's like

saying someone can stay in your house, and they have a room and that,

and all of a sudden they take over the whole house,

and youre left outside, yknow, with the doors locked, or limited entry,

where theyre dictating the terms in your house.

and thats basically how the treaty relationship was breached,

where canada just, yknow, made treaties and then ignored the treaties,

and applies provisions of the Indian Act instead.

And thats whats happened historically,

and um, of course that was all under 9124,

yknow, that section of the old constitution, the BNA [British North America] Act

um, so, Section 35, i think we have to argue our interpretation of it where we can reconcile how to co exist,

and a good way to look at what does that mean,

is to look at the report and recommendations of the Royal Commission On Aboriginal Peoples.

i mean, they spent 55 million dollars on looking at the whole scope of the history,

to the contemporary situation,

and theyve made some good recommendations,

which the government just shelved in the 1990's, and never looked at it.

and um, i think it should be brought out, because it's still a good resource book

for aboriginal and non-aboriginal peoples to know the history and the recommendations they made

about yknow how to solve some of these problems.

And that's a good source.

And then also on top of that,

now we have the United Nations Declaration On The Rights of Indigenous Peoples

that has articles in there that form a national, and international standard,

of human rights that canada should be measured against in terms of its domestic policies.

cause theres big gaps between the articles in the UN declaration

and canadas land claims and self government policies,

and canadas continued reliance on imposing the Indian Act.

so id say the Royal Commission On Aboriginal Peoples report and the UN Declaration On The Rights of Indigenous Peoples

are two source documents that people should familiarize themselves with,

cuase in there are the answers for reconciliation.

Well there is a United Nations Permanent Forum on Indigenous Issues,

and every spring thousands of indigenous peoples go there to that Permanent Forum

and there are themes that are talked about.

Last years theme was theDoctrin of Discovery,

where indigenous peoples came and yknow denounced that racist property concept,

because that was the doctrine that canada relies on to claim this country,

but its also the united states on, and its relied on in the whole western hemisphere,

central and south america, by settler governments.

And um...