Affirming Treaty Rights and Inherent Rights, Title and Jurisdiction Presented by: Rogers Jones Date Prepared: April 25, 2019

Background The denial of First Nations rights has impeded our responsibilities to the lands and waters as well as the health and well-being of our children. For decades, First Nations pressed for joint review and overhaul of key areas of federal law and policy that impact First Nations rights, such as those to land and self-determination as well as jurisdiction over health, environmental protection and other matters. Treaty rights and the inherent rights, Title, and jurisdiction of First Nations have been affirmed under international law and domestic case law. Successes have come through sustained advocacy and activism. Canada has endorsed the United Nation Declaration on the Rights of Indigenous Peoples and has committed to adopt and implement it without qualification. Date Prepared: April 25, 2019

Background First Nations have called for support for Nation rebuilding, including law-making, institution-building, and traditional governance systems, in order to assert our inherent rights outside the purview of Canadian legislative control. At the United Nations Permanent Forum on Indigenous Issues (UNPFII) in 2016, Minister Bennett stated: “By adopting and implementing the Declaration, we are excited that we are breathing life into Section 35 and recognizing it now as a full box of rights for Indigenous peoples in Canada. Canada believes that our constitutional obligations serve to fulfil all of the principles of the declaration, including free, prior and informed consent. … What does this mean for Canada now? It means nothing less than a full engagement and how to move forward with adoption and implementation done in full partnership with First Nations, the Métis Nation and Inuit peoples.” Date Prepared: April 25, 2019

Self-administration: Federal legislation and policies centre on self-administration and denial of rights Self-determination: The rights of Indigenous Peoples to choose our destinies. In Canada, it means that First Nations, have the right to negotiate the terms of our relationship with Canada and choose governmental structures that meet our needs.   Self-administration: Downloading of programs and services to be delivered by First Nations where other governments make all key decisions over program content, standards, funding, etc. Self-government: The ability of First Nations to enforce our own rules, resolve disputes, problem-solve, and establish our own governing institutions to carry out these tasks. CURRENT STATE Our Right Date Prepared: April 25, 2019

A “Full Box” of Rights Section 35 Section 91 Section 92 Pre-1975 Treaties UN Declaration A “Full Box” The Government of Canada has confirmed that Section 35 contains “existing” Inherent Rights, Treaty Rights. Section 91 includes jurisdictions of the federal government Section 92 includes jurisdictions provincial governments The rights articulated by the UN Declaration. The Supreme Court of Canada has encouraged more flexibility in finding solutions between Crown law and policy and Indigenous Treaty rights. American Declaration (24) A “Full Box” of Rights The less rigid approach means not seeking to explain how aboriginal and treaty rights fit into the existing paradigms, rather, how unique these rights are and that the common and constitutional law is flexible enough to accommodate such challenges. The Court refers to it as the challenge of reconciling pre-existing aboriginal and treaty rights with assumed crown sovereignty. Date Prepared: April 25, 2019

A Key Issue: Reconciling Sovereignties First Nations sovereignty needs to be reconciled with the Crown’s assumed sovereignty First Nations Sovereignty Source of First Nations inherent rights, Title and jurisdiction Treaties Nation-to-Nation (international) agreements UN Declaration and American Declaration International recognition of some rights and treaties Indian Act Denial of First Nation’s rights, Title and jurisdiction Section 35 Empty box Full box: Domestic recognition and affirmation of “existing” inherent and Treaty rights Source of Canada’s Inherent Right to Self-government Policy and Comprehensive Land Claims Policy Affirms First Nation’s pre-existing sovereignty, needs to be reconciled with the assumed sovereignty of the Crown Nation Building Method to re-assert First Nations sovereignty Date Prepared: April 25, 2019

Recent Events 2018 February 2018: The Prime Minister announces a new process to develop a Recognition and Implementation of Indigenous Rights Framework and Canada begins engagements with First Nations. May 2018: Chiefs-in-Assembly pass Resolution 8/2018 - Implementing Canada's Recognition and Implementation of Indigenous Rights Framework, which calls for Canada to recognize rights and to work with First Nations to ensure engagements are informed, sufficient, transparent and accessible. July 2018: Chiefs-in-Assembly pass Resolution 39/2018 - First Nations Determination of the Path of Decolonization, calling for the process to be halted and a First Nations-led process created. September 2018: The AFN convenes a national policy forum to provide First Nations the opportunity to share information and engage in informed discussion and dialogue. December 2018: Chiefs-in-Assembly pass Resolution 67/2018 - Rejection of the Recognition and Implementation of Indigenous Rights Framework and Associated Processes, which calls for: The development of a Nation-building process, A meeting with the Prime Minister to address the rights mandate, and A second AFN policy forum to “establish principles to solidify our approach with the Crown.” Date Prepared: April 25, 2019

Recent Events 2019 January 2019 Canada responded to advocacy efforts and indicated willingness to work with First Nations and the AFN to replace the Comprehensive Land Claims Policy (CLCP) and Inherent Right Policy (IRP). Canada initiated an approach and indicated June 2019 deadline. March 2019 The AFN, in a letter to Minister Bennett, noted that the proposed process is not First Nations-led, includes insufficient timelines, and has pre-determined outcomes. Recent resolutions from Chiefs-in-Assembly have called for a First Nations-led process. This requires appropriate resources, timelines, and outcomes that are approved by rights-holders. May 2019: The AFN convenes a second national policy forum to facilitate coordination and communication across regions on key policies and discuss foundational elements of the working relationship between the Crown and First Nations. Jan 2019 – re the outreach/engagement led by Kim Baird and Tom Isaa May 2019 – These were identified in the September 2019 report – Emergency Principles to Guide a Way Forward Date Prepared: April 25, 2019

AFN September 2018 National Policy Forum: Affirming First Nations Rights, Title and Jurisdiction At this policy dialogue among First Nations, First Nations leadership and delegates voiced their opinions, concerns and preferred strategic options for advancing respect and enforcement of First Nations rights. First Nations want Canada to honour its’ constitutional obligations that affirm First Nations inherent rights, Treaty rights and title. First Nations leadership and delegates expressed shared concerns including: First Nations rights are Inherent rights and are not negotiated through agreements, settlements or arrangements. A number of foundational elements/principles emerged from the Forum dialogue that could be applied to work between First Nations and Canada going forward. Forum delegates Participants First Nations must be provided the opportunity to reach their own conclusions and outcomes and cannot engage according to pre-determined timelines. These are important conversations that need to continue and we need time to do this right. Date Prepared: April 25, 2019

Foundational Elements to Guide the Way Forward Affirm the pre-existing sovereignty and inherent Title of First Nations. Inherent rights and Title already exist and have been affirmed. Our rights as peoples and nations cannot be extinguished, and do not owe their existence to any other level of government. First Nations laws, languages, cultures and governance and all jurisdictions must inform acceptable solutions. The honour of the Crown means that the Crown’s words must meet its’ actions and the Crown must keep its promises, including the full implementation of treaties and agreements. Value the equality of peoples as in the Guswentah (Two Row Wampum Treaty). Fair and inclusive collaboration means making decisions together not in isolation. Clear, transparent communication must restore, not erode trust. Organize the federal government and it’s practices so that the UN Declaration guides reconciliation. Reconciliation does not mean compromise, it means moving forward in a respectful way. Reconciliation must be the guiding principle The concepts of self-determination, sovereignty and reconciliation must guide the process. There must be early and full disclosure Communications must be clear and transparent. First Nations must have the time and opportunity to reach informed conclusions based on their own forms of decision-making. The process must be voluntary and participating parties must hold equal status Perspectives of Canadian common law as well as the legal traditions of Indigenous peoples must be given equal weight. The tradition of the Guswentah (Two Row Wampum Treaty) should be respected. The process requires the commitment of the decision-making authorities from all parties and decisions must be made together – not unilaterally All parties must engage in a considered, meaningful two-way dialogue. Decision-makers must be prepared to make changes to any proposed actions based on information and insight obtained through the process. The process must be a well-defined and the issues must be well-identified The engagement process requires a clearly defined outcome to ensure meaningful and informed discussions. The process must be flexible There must be flexibility to encourage First Nations participation without losing sight of commonly agreed upon goals. The process requires the active participation of all parties to build trust between them Joint problem solving will enable co-operation, create shared understanding and build mutual trust between the parties. The process must be supported with appropriate resources Co-development between asymmetrical parties will reflect that imbalance without a sharing of resources and capacity. First Nations must be supported to allow them to have meaningful participation. The outcome of the process belongs to both parties All parties share responsibility to support the outcome and all parties must strive to maintain the relationship. Implementation of the outcome is key The end result must recognize that Indigenous rights go beyond Canadian law. The outcome must result in the jurisdiction and the capacity in order to respect the distinct rights and interests of First Nations. The UN Declaration is the minimum standard The standard of free, prior and informed consent in the UN Declaration must be the foundation for a First Nations-led process. Date Prepared: April 25, 2019

First Nations Leading the Way Forward Rights Holders Regions National First Nations have called for a First Nations-led process to determine the path of decolonization and self-determination Individual First Nations must be supported to give voice to the concerns and provide a mandate on the path forward. Regional bodies must be supported to ensure a common level of understanding and participation. This will identify viewpoints from different provincial and territorial regulatory regimes and the various perspectives of different Treaty relationships. There must be support for a common understanding of rights affirmation, including a national dialogue and funded regional communications. This will ensure that rights-holders' are the final arbiters of their own self-determination. First Nations have called for a First Nations-led process to determine the path of decolonization and self-determination Previous studies and consultations have provided innumerable recommendations to the federal government (RCAP, TRC, Hawthorne, Penner, various Auditor General Reports, etc.) First Nations have identified many instruments for Canada to support nation-to-nation relationships grounded in the affirmation of rights, Title and jurisdiction: Domestic implementation of United Nations Declaration on the Rights of Indigenous Peoples (Bill C-262) and the creation of a National Action Plan Creation of a National Treaty Commissioner Rights Affirmation Legislation (UBCIC) Royal Proclamation, and others Date Prepared: April 25, 2019

Asserting First Nations Sovereignty A renewed nation-to-nation relationship between Canada and First Nations must be based on the affirmation of the pre-existing sovereignty and the inherent rights and title of First Nations. This means working in true partnership to improve health, well-being and economic prosperity of First Nations. The Royal Commission on Aboriginal Peoples (1996) outlined the steps needed to transform the relationship between Indigenous peoples and Canada. Rebuilding our nations requires new capacity including new institutions, infrastructure, human resources and economic stimulation. First Nations have called for support in developing nation-building processes (law-making, institution building, research of traditional governance systems, etc.) in order to assert our sovereignty and inherent rights. Date Prepared: April 25, 2019