DISC SIX-POINT STRATEGY DISCUSSION PAPER - DRAFT #3

June 12, 2000

DISC SIX-POINT STRATEGY - DISCUSSION PAPER DRAFT #3.

Note to readers: This paper is prepared for discussion purposes only. It is intended for circulation among the technical team for their review and comments, with a view to reaching agreement on a final draft which will be submitted at the next DISC meeting.

A. BACKGROUND. For over 250 years, First Nations have been seeking to have their Aboriginal title and rights recognized and affirmed. These efforts pre-date the existing Comprehensive Claims Policy, and in this context, Delgamuukw merely vindicated what the elders had been saying all along. First Nations profound dissatisfaction with Canadas Comprehensive Claims Policy has been well known for many years. Outside commentators have also acknowledged that the policy is increasingly out of step with the legal and political landscape. In 1993, prior to their election, the federal Liberals committed to a complete overhaul of the Comprehensive and Specific Claims policies. In fact, Jean Chretien, as leader of the federal Liberals, made a personal commitment to do this when he announced the Liberal Aboriginal Electoral Platform in Saskatchewan, in October 1993. These commitments were also contained in Chapter Seven of the Liberal Partys Red Book I. In the fall of 1996, RCAPs final report and recommendations called for fundamental policy change with respect to the Comprehensive Claims policy. However, then-Minister Jane Stewart informed the AFN Chiefs Committee on Claims on December 11, 1997, in Ottawa, that Canada was only prepared to enter into a joint review process with regard to Specific Claims. As an alternative she committed that Canada would undertake a separate process of review to deal with the CCP. Ironically, on the same day, the SCCs Delgamuukw ruling undermined the very basis of the Comprehensive Claims policy and process. At the time, it was assumed that this judgement would hasten a fundamental revision to the CCP. In January and February 1998, Canada released the Gathering Strength , its general response to the RCAP final report, and the Agenda for Action, a specific programme

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relating to the First Nations. These frameworks provided no substantive response to RCAPs recommendations regarding fundamental policy change on Aboriginal title and rights. Moreover, they completely ignored the impact of the Delgamuukw decision. In fact, the Agenda for Action formally down-graded previous commitments to policy change by simply indicating that the federal government was prepared to consider and respond to First Nation concerns regarding the Comprehensive Claims, with a focus on process, not the policy: The portions of the Agenda for Action which relate to the CCP are as follows: Comprehensive Claims: joint federal government-First Nations exploration of the Comprehensive Claims Process in order to consider and respond to First Nation concerns, in part related to the recommendations of RCAP, with the existing processes and policies. Certainty: joint federal government-First Nations exploration of possible methods other than surrenders or extinguishments of Aboriginal title to provide clarity, stability and certainty through comprehensive claims settlements and which would be supported by federal and provincial governments, First Nations and the public.1 Following this, numerous attempts have been made by the AFN, regional organizations, First Nations, and individual First Nation communities, to have Canada accommodate the implications of the Delgamuukw ruling in its policies and procedures. These efforts have been rejected and/or avoided. The furthest Canada has been prepared to go is to support a process of study and review (the Delgamuukw Review & Education initiative), which is focussed neither on changing the CCP nor on implementing Delgamuukw. The Delgamuukw Implementation Strategy Committee (DISC) emerged as a response to this federal refusal to address the issues raised by Delgamuukw, with a mandate from the Chiefs to proceed with measures to obtain implementation of Delgamuukw and changes to prevailing policy. In January 2000, in Vancouver, a meeting of First Nation leaders from across Canada took place, and a six-point strategy was developed towards this end. This six-point strategy was considered and adopted by the Confederacy of Nations through Resolution 7/00 in April, 2000, along with a specific work plan.

Canada, An Agenda for Action with First Nations (Ottawa: February 1998): p. 3.

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B. RATIONALE FOR THE SIX-POINT STRATEGY. The rationale for the six-point strategy is that by all accounts, the Government of Canada is not at this time prepared to commit to a review of the Comprehensive Claims Policy (CCP), let alone substantive policy changes. Therefore, First Nations need to apply additional pressure in order to obtain a commitment from the federal government for substantive policy reform. The basis for this rationale has been confirmed at a recent meeting with federal officials. On May 9, 2000, DISC met with senior federal officials to obtain their commitment to a formal review and revision of the CCP. The AFN tabled a proposal to jointly appoint a panel of experts who would make recommendations on changes to the policy, to be followed by mediated negotiations, leading to policy change. At that meeting, federal officials confirmed that (i) there is no Cabinet mandate to consider changes to the policy, and (ii) that Minister Robert Nault is not prepared to support a government-wide review of the policy.

C. OBJECTIVES OF THE SIX-POINT STRATEGY. There are three key objectives to the six-point strategy: 1. To get the federal government to recognize and implement Aboriginal title, in accordance with the law. 2. The creation of a new policy framework which recognizes and affirms Aboriginal title. 3. To support First Nation people in the exercise of the rights flowing from their Aboriginal title, and to obtain benefits from their land and resources.

D. ELEMENTS OF THE SIX-POINT STRATEGY. The six elements are as follows:

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Public Education Political/Negotiation/Pre-Litigation Strategy Litigation

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Policy Development Direct Action/Assertion of Rights International Campaign

We will now proceed to provide some detail to each of these, in terms of: -specific work plan and actions -time lines -estimated or projected costs and human resources requirements -responsibilities There are two phases involved in the short term:

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Phase I: Development: Preparation of work plan for consideration and adoption by the Chiefs in Assembly (April - July 2000). Phase II: Implementation: Following the AFN GA, proceed with full implementation of the work plan (July 2000 - March 2001 and beyond).

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1. PUBLIC EDUCATION & COMMUNITY PARTICIPATION. 1.1. Objective. To build public awareness of the issues, and support for the recognition and affirmation of Aboriginal title, among the First Nation and non-Aboriginal public. This in turn will have an influence on non-native leaders and policy makers. 1.2. Targets. Under this heading there are tow main categories: internal work among the First Nations, and external work among non-native institutions. Both of these contain a number of distinct targets, which will require materials and activities that are tailored to their particular circumstances (there may be others to add to this list). 1.3. Internal - Community Participation and Traditional Knowledge. Aboriginal title, as recognized in 1997 by the Supreme Court of Canada in the Delgamuukw decision, flows from the diverse legal systems of the various indigenous nations. It resides collectively with the community, who are instrumental in asserting and implementing title. Therefore the communities need to be informed and actively involved in this national initiative to reaffirm and implement Aboriginal title. From this perspective, it is important to build positive models based on traditional customs and laws: -traditional knowledge -traditional practises -traditional law-making authorities (Elders) and models, including systems of tenure (Aboriginal title) -sustainable development 1.3.1. Step One: Inform and Involve the Communities. Aboriginal title resides with the people, and it is they who must take the lead in implementing it. Provide communities with information on Delgamuukw, the CCP, and efforts they can make to implement Aboriginal title on the ground. Inform First Nation

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citizens and communities about their rights, and how to exercise and protect them. Keep updated on developments. Methods: AFN Messenger (already one insert); AFN website (upload Messenger insert, key documents, updates, etc.); targeted e-mails; poster; regional forums; development of how-to materials for distribution at the local level. Utilize Aboriginal media to assist in encouraging awareness, discussion, action. Messages:

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Aboriginal title is a real property right Existing poverty is directly linked to denial of this right Existing policies and processes are not intended to address these fundamental issues Need active support in getting policy changed. Need active involvement in exercise of rights and obtaining benefit from Aboriginal title lands & resources. Other?

1.3.2. Step Two: Collect Data to Prove Aboriginal Title. 1.3.2.1. Collect The Relevant Cultural/Historical/Technical Information. As mentioned above, communities need to be prepared to defend their Aboriginal title and rights. So, the second step is to collect the historical and cultural information that First Nations will need to establish their connection to the land, particularly the area of planned Aboriginal title activity. It is advisable to also collect the technical land and resource information from the relevant provincial Ministries in the territory, ie. zoning, allocation to third parties. First Nations may want to start their planned Aboriginal title activities at a site near their community with "public" road access. The community can then provide logistical and defensive support more easily.

Locate all previous cultural/historical studies/maps that have been done about the Community/Nations' Land Traditions, if there are any. If there aren't any, identify community members or Elders, that are land users in the area of the site of the planned Aboriginal title activity. Prepare them to be ready to do an interview/affidavit in the likely event of legal action by the province.

Special attention should be paid to traditional authorities, tenure systems, and concepts of

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title.

1.3.2.2. Prepare An Aboriginal Title Plan. The next step involves gathering all of the cultural/historical and technical information for the site/area and analyzing it to prepare a Plan for exercising Aboriginal title and rights, as well as a defensive negotiating/legal position.

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How has the Community/Nation used the area historically and currently (within living memory = Interviews with18 yr. olds to Elders)? Exercise of First Nation authority: obtain documentation from First Nation governing institutions authorizing the Aboriginal Title activity(ies) ie. signed permit, safety requirements met, etc. Determine the need for an additional security/peace camp at the site of the Aboriginal title activity, and identify community people to be in charge of the camp.

1.3.2.3. Implement The Aboriginal Title Plan. The final step is to implement the Aboriginal Title Plan. This is an exciting and liberating part of the experience of exercising lawful Aboriginal title and rights to the lands and resources of within a First Nations' territory. There are other Communities/Nations that have already started and can be of assistance. Don't be afraid to ask them for advice. 1.3.3. Traditional Knowledge. Since the World Earth Summit in Rio 2000 the international community has become more and more active in creating instruments for environmental protection. One of them is the Convention on Biological Diversity. Article 8j foresees the use of the traditional ecological knowledge of indigenous and local communities to ensure the in-situ conservation of biological diversity. Canada is a signatory of this convention and participates in the

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conferences of the Parties held biannually to ensure the implementation of the convention. Canada therefore has to provide the funds for the necessary research to collect the traditional knowledge to ensure the best possible protection of the biological diversity. Indigenous communities are the holders of this knowledge and should be in enabled to research the knowledge according to their own research protocols and decide on the disclosure of this information. This has to go hand in hand with the development of international standards for the protection of traditional knowledge and intellectual property with respect to indigenous communities (more on this below). 1.4. External - Non native Institutions. Public education campaigns often focus on existing networks which are already generally onside (for instance, NGOs, social-activist church groups, unions), leaving the tough-sells (ie., the right wing, industry, etc) for another day. It is proposed that the public education exercise associated with DISC focus on both of these broad groups. 1.4.1. Opinion makers. Over the past ten years, the public policy discourse has increasingly been dominated by neoconservative thinkers and institutions, and this in turn has had a significant impact on government policy and public perceptions. With specific reference to First Nations, these developments have led to a situation where falsehoods are now often accepted as conventional wisdom (ie., that Indians are pampered by government; that assimilation is the final solution; that equality requires one set of laws for all, etc.). These thinkers and institutions need to be targeted directly and drawn out into a public debate on the issues, to debunk the myths that they have been generating and force them to defend their assertions. Specific examples: The Fraser Institute; David Frum; Tom Flanagan; Mel Smith; polling companies; others.

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Methods: Op-ed pieces; public debates; published materials or rebuttals; open letters; radio talk shows. Could organize a conference/symposium, similar to the one which the Fraser Institute did last year on Delgamuukw. Involve media and commentators.

Messages:

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Authentic equality requires recognition of Aboriginal property rights. Highlight racist elements of the prevailing neo-con analysis. Put them on the defensive. Highlight the connection between prevailing social conditions and denial of access to lands & resources - economic racism. Recognizing Aboriginal title will be of benefit to all Canadians.

1.4.2. Support Groups. NGOs (ie., the Council of Canadians, Canadian Labour Conference, unions). With particular reference to the unions, efforts should be made to link the Aboriginal title issue to the International Labour Organizations (ILO) Convention on Indigenous Peoples rights. Environmentalists (where appropriate). Service clubs (ie., Lions, Kiwanis, Rotary). More detail to follow - identify support groups in consultation with AFN staff and DISC. 1.4.3. Religious Institutions. Generally, efforts focus on existing networks, in particular Christian ones such as the Aboriginal Rights Coalition (which represents many of the mainstream, socially-left churches) and the Canadian Council of Catholic Bishops. Among the Christian churches, this leaves out many of the Evangelical denominations, which have not generally been as active on social justice issues, and which the Alliance/Reform regards as a recruiting ground. Efforts should be made to use existing alliances with ARC, etc., to begin a public education process with these other churches.

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Another factor which will affect this aspect of the public education initiative is fallout from the residential school claims. Already, The Anglican Church is taking seriously about bankruptcy of its national office and individual diocese. The Roman Catholic and United Churches are feeling many of the same pressures. This ongoing uncertainty will have an impact on how they respond to any requests for assistance, and needs to be considered. Jewish institutions should also be approached (more on this below under International campaign). As well, there are other faiths which have been growing in numbers over the past decade, which have a large infrastructure, and which are becoming important in terms of shaping public policy. The Moslem faith, and particularly in BC, Hindus and Sikhs, need to be considered as well. Methods: Meetings at national, regional, local level. Seek letters, resolutions of support, active political support. 1.4.4. Business. Acknowledging that government policy is heavily influenced by the expectations and imperatives of the corporate sector, and economic considerations, a keystone of this strategic approach is to target Canadas economy, in order to heighten the uncertainty which Delgamuukw and related events have created, and to highlight the economic deprivation of First Nations under the status quo. Corporations and companies who take profits from unceded lands and resources need to be advised of the potential consequences of their actions, and their support for policy change sought.

Companies: It may be that specific companies within each sector (ie., mining, timber,

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the fishery) should be targeted as a priority in the initial phase. An alternative would be to target specific companies in each region. Major financial institutions - especially the banks - should also be dealt with in this connection.

In addition to entering into dialogue with management, attention should also focus on their shareholders, particularly institutional investors who often hold large chunks of stock and as a result wield significant influence.

Industry groups: As well, industry groups (ie., the Canadian Mining Association, Canadian Pulp & Paper Association, COFI, etc.) provide an opportunity to maximize exposure.

Umbrella groups: Finally, umbrella groups - in particular the Business Council on National Issues, the Canadian Chamber of Commerce, and the Canadian Federation of Municipalities - should also be singled out for attention.

Messages:

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Aboriginal title is a legal proprietary interest which exists regardless of whether it is recognized as a matter of federal policy. This interest represents a lien on lands and resources which is not reflected on the balance sheets of these companies - in other words, they have been borrowing money and issuing shares, without disclosing this liability.

Non-recognition of Aboriginal title also translates into an invisible subsidy since it is not factored in as a cost of doing business, and, in the context of international trade, amounts to an unfair business practise.

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CCP must change to reflect these realities. Seeking support from companies to press for policy change. Regardless, companies will be needing to consider changes to their existing practises,

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and changes to the way they do business. They can be part of the solution or part of the problem. Methods: Notices prepared and sent out. Meetings with Boards of Directors/CEOs. Letters to major shareholders/institutional investors. Advertisements in media (particularly trade publications) 1.4.5. Media. -Identify key messages (simple, consistent) -identify spokes-people -monitoring & assessment -Interviews -meetings with editorial boards -letters to editor -op-ed pieces -purchase advertising 1.4.6. Legal organizations. Liaison with the Indigenous Bar Association, Canadian Bar Association, Law Reform Commission, the judiciary. [Needs further discussion.] 1.4.7. The General Canadian Public. Given the reality of scarce resources, it may be best at this stage to deploy resources strategically at the key groups already outlined above. If successful, these efforts will inevitably spill over into the public discourse. It is recommended that the AFNs efforts in the initial phase focus primarily on the target groups identified above. General information materials (in the form of a pamphlet) could be prepared for distribution to the general public.

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Could organize public forums/town hall meetings. 1.5. Responsibilities. Need to sort our roles & responsibilities between AFN media directorate and DISC technical committee. Identify potential linkages with other AFN programs. -drafting/development of materials -production and dissemination of information -identification and confirmation of specific contact people, organizations under each heading -identify and select target corporations/sectors -scheduling of events -follow up 1.6. Time Lines. Aspects of this work (ie., insert in the AFN Messenger, dialogue with Church groups, press releases) have already begun. Upon approval of the overall six-point strategy, begin the development of materials, identification of specific targets (ie., industrial sectors, companies), and implementation. Phase I: June - July. Phase II: August - December. 1.7. Assessment/Adjustment. Periodic assessments by technical working group and DISC. Adjustments as required. 1.8. Costs. ??? 1.9. Other Considerations.

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??? 2. POLITICAL/NEGOTIATION/PRE-LITIGATION. As directed by Resolutions 5/99 and 7/00, the AFN has invited the federal government of work jointly on a process of policy review, first through a panel of experts, and then through mediated negotiations. (See proposal to Canada, May 9/00, attached). Greg Gauld, Director General of Comprehensive and Major Claims, committed to having a response from the federal government by May 31st, but as of this writing (June 12th), federal officials have secured no direction and provided no response to the AFNs proposals. Based on past experience, it can be expected that Canada will stall or avoid a concrete response. Additional pressure will need to be exerted - in terms of the other 5 points of this strategy, as well as continued attempts at negotiation. Keeping in mind the potential for litigation, it will be important to have as much of a paper trail as possible. Therefore, the federal response should be in letter form, and as specific as possible. Detailed and accurate records of all meetings and telephone calls with federal officials should be kept and circulated. 2.1. Targets. Once the federal response is assessed, the political/negotiation aspect of this item will need to be revisited, revised if necessary, and implemented. Specific Departments, agencies, and elected leaders/governments should be targeted as a part of a lobby effort to get them to rethink their refusal to review and change the CCP. At minimum, it should include:

Key Ministers: as above, DOJ, Indian Affairs, Finance, Treasury Board, etc. Include Ministers who chair key Cabinet Committees and members of those committees.

Political staff of key ministers: DOJ, PCO, Indian Affairs, Finance, Treasury Board, to

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get the message through to their masters.

Senior officials at DOJ, PCO, PMO, Indian Affairs, Finance, Treasury Board. This dialogue needs to be at least at the level of ADM/Deputy. Include senior committees (committee of Deputies; interdepartmental committee on CCP (ADM level). Officials who we have dealt with to date simply do not have the authority or influence required to obtain movement.

Members of Parliament: Lobby key MPs, including chairmen of critical Standing Committees (Justice, International Trade, Finance) and members of those standing committees. Not necessary to lobby all MPs at this time.

Opposition parties: The utility of expending energy on the opposition parties needs to be discussed and assessed. The Tories are weak. The Alliance is hostile and not likely to alter a fundamental aspect of its policy platform (ie., Anti-Indian rights) in the middle of a leadership campaign. The NDP is marginal. The Bloc, however, particularly with respect to its influence over federal policy as it applies to Quebec, may be one opposition party which should be an area of focus. At the Fraser Institute forum on Delgamuukwlast year, the BQ Indian Affairs critic, Claude Bachand, publicly indicated that the BQ supports implementation of Delgamuukw, including recognition of title and compensation for past infringement.

Federal Auditor General: In his 1998 Annual Report, the Auditor General focussed, in part, on the CCP from a process perspective, and raised a number of questions which later received additional consideration from the Standing Committee on Aboriginal Affairs and the Standing Committee on Public Accounts. The Department was told that it had not provided accurate evidence to support its assertion that CCP settlements actually resulted in economic benefits. It was also told that it needed to provide an accurate valuation of lands under claim. The Department undertook to respond to these issues. Contact should be made with the Auditor Generals office to identify and

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address the AFNs concerns regarding the CCP from a policy perspective.

Provincial governments: Begin the process of advancing the awareness of key provincial governments. They can be expected to press the federal government for policy change if they can see that it is in their interests. B.C., Quebec, and the Atlantic provinces are key.

2.2. Responsibility. Coordination by AFN National Office. Participation by DISC members and technical team. Interventions with individual provincial governments by nations from within those provinces. 2.3. Time Lines. With Parliament soon breaking for summer recess, and the distinct possibility of a fall election, it may be difficult to implement all aspects of this item before the AFN GA. At the very least, work with more senior officials can begin, and individual MPs/Ministers can be approached through their constituency offices. Needs discussion. 2.4. Costs. Needs discussion. 3. LITIGATION. See budget proposal from Nahwegahbow, Nadjiwan, Corbiere, to Audrey Mayes, dated 23 May 2000. Implementation to await finalization of the preparatory work. 4. POLICY DEVELOPMENT.

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This is an important area of activity. It is easy to attack the CCP, but ultimately workable alternatives are going to have to be advanced, subjected to outside scrutiny, and negotiated. It is better that this work begin taking place now rather than later. Considerable work on alternatives to existing policy has already been done - notably, the final report and recommendations of RCAP (as well as the associated policy papers), and Judge Hamiltons report on alternatives to extinguishment. These materials form a solid base from which to build. However, existing AFN resolutions also provide some additional guidance in terms of policy directions. Specifically, they refer to the standards, principles and process outlined by the SCC in Delgamuukw(neither RCAP nor judge Hamilton had the benefit of this guidance from the SCC when they prepared their reports & recommendations). Finally, discussion in the DISC has also identified existing and emerging human rights standards and covenants as another basis for policy development. The DelgamuukwReview & Education initiative, headed by Satsan, has also been conducting research which may be relevant to this aspect of the 6 point strategy. To date, their research has focussed on the legal aspects of Delgamuukw. Draft copies of these reports need to be obtained and reviewed, to see how their contents might be applied to the work at hand. Beyond legal research, Satsan has also suggested activity related to policy development. In particular, a paper prepared by Satsans office, Supporting AFNs National Initiative Regarding Recognition and Affirmation of Aboriginal Title: Policy Analysis and Research (April 10, 2000), proposes six potential subjects for policy development and analysis, with the stated objective of assisting the DISC in its work. There are some useful points raised in the April 10 document, but it does not fully reflect the discussions which have taken place within the DISC. The six proposed projects contained in

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that paper have been considered in connection with the preparation of this section of this document, and elements of them are reflected in the proposed activities which follow.

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4.1. Research Projects/Policy Papers. 4.1.1. The CC Policy and Process. Describe and analyse the existing CC policy, measured against the standards set out in Delgamuukw and International Covenants. Also take into account the RCAP recommendations. Describe and analyse the existing CC process, and its regional variations, measured against the standards set out in Delgamuukw and International Covenants. Critique the policy and the process in light of the analysis, identifying particular problem areas. This work would include a specific section on extinguishment, building on the work of RCAP and Judge Hamilton. 4.1.2. Recognition and Affirmation Policy/Process. This paper (or series of papers) would build on the preceding one, using the analysis to develop options and approaches for a new policy and process, including affirmation & recognition vs. extinguishment, as well as co-jurisdiction and co-management. It would also include a consideration of jurisdiction (self-government and intergovernmental relations), fiscal relations, and the federal governments s 91(24) responsibilities, including its fiduciary duties. 4.1.3. Economic Analysis. Needless to say, there are important economic issues directly related to Aboriginal title and

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its recognition. Each of these need to be identified and assessed to inform the implementation of the six-point strategy, and to develop articulate and defensible policy alternatives. This item requires more discussion, but here are some ideas: 4.1.3.1. Value of Unextinguished Aboriginal Lands & Resources. The SCC stated in Delgamuukw that Aboriginal title is a proprietary interest, including exclusive use of lands and resources. The purpose of this work would be to identify some criteria and provide some parameters for attaching a value (or range of values) to unextinguished Aboriginal title lands & resources in Canada. Obviously, these would only be estimates, and subject to a number of assumptions. However, the result would be of great benefit in connection with public education, the international campaign, and related research items connected with the national accounts (see below). A possible sub-project under this one would be to also estimate the value of resources taken out of unextinguished Aboriginal title lands annually (ie., timber, minerals, hydro, fish & wildlife, etc.). 4.1.3.2. National Accounts. Canadas national accounts do not take into account the liabilities arising from unextinguished Aboriginal title or claims related to such title. Apparently, outstanding First Nation rights or claims only show up as contingent liabilities when they are being litigated. In any event, Canadas national accounts are supposed to accurately reflect the state of the countrys books, because they influence many aspects of fiscal and monetary policy, and they also influence the credit ratings fixed by bond rating agencies. The method for calculating and presenting Canadas national accounts is now apparently under review, so the timing may be opportune. The point of this work would include:

find out more specifics about how the national accounts are calculated and presented;

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determine what if any steps are being taken to revise the way they are calculated provide some estimates of what the national accounts would look like if they reflected the actual cost of unextinguished Aboriginal lands and resources as a Crown liability. Identify potential implications for Canadas bond rating, etc.

A similar exercise could also be undertaken for selected provincial public accounts (in particular, B.C., Quebec, the Atlantic). 4.1.3.4. Corporate Accounts. Applying the same reasoning from the previous point to corporate accounting practises, what impact does the reality of Aboriginal title have on the balance books of major resource extraction companies? The existence of Aboriginal title as a legal interest stands to affect their security of tenure, supply, stock valuation, cost of borrowing, etc. [Also identify issues re: WTO/NAFTA rules & hidden subsidies/unfair competition...] 4.1.3.5. Other. There are other economic issues which need to be fleshed out. This should occur through discussions with the technical team, DISC members, and AFN staff from relevant programs. One possibility is an impact/benefits assessment of recognition of title. 4.1.4. Formation of Public Opinion. Governments, media and companies rely on polling to gauge public opinion and this in turn has an influence on public policy and debate. Although many pollsters ask questions related to Aboriginal title and claims, it is clear that the results they get are distorted by the general publics ignorance of First Nation rights and history. In this connection, it may be useful to commission some work which would provide more insight into how public opinion is formed, and how pollsters gather their information and analyse the results. The objective would be, in

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part, to see if there is a basis for challenging the results of polls which suggest that Canadians are against Aboriginal title. Needs discussion. 4.2. Responsibility. It is proposed that the terms of reference for these projects be developed by the DISC technical team in conjunction with AFN staff. Contractors should be identified to carry out the research in consultation with AFN staff and the technical team. With respect to the economic component, the actual work should be done by staff or contractors who have a firm grasp of economics, valuation, and government & corporate accounting practises. As already mentioned, this work needs to be closely coordinated with Satsans Research and Education initiative, to avoid duplication, and to ensure that the work which is done meets the precise needs and objectives of DISC. 4.3. Time Lines. Work to begin as soon as possible, particularly because implementation of other elements of the 6-point strategy will rely heavily on this research (ie., international campaign, public education). 4.4. Costs. To be determined. 5. DIRECT ACTION/EXERCISE OF ABORIGINAL TITLE & RIGHTS. The exercise and assertion of Aboriginal title is at the heart of the 6-point strategy. Being a collective right that lies with the nation and the community, it is up to the people themselves to initiate actions which reflect the exercise of their rights to, and jurisdiction over, their land

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and resources. 5.1. Objective. To support, and, when requested, to assist the First Nations, their communities and citizens, to continue (and resume) using and benefiting from their Aboriginal title lands and resources to the fullest extent possible, in an organized and disciplined way. These activities will also need to be linked to other components of this six point strategy, as it should be expected Crown governments and third parties will challenge First Nations in the exercise of their Aboriginal title and rights. 5.2. Defending the Exercise Aboriginal Title. Although the Supreme Court of Canadas Delgamuukw decision judicially recognizes that Aboriginal title exists in Canada, and that it is a right to the land itself, the Court stopped short of actually applying these conclusions to a specific nation or specific piece of territory. In an effort to further delay the recognition of Aboriginal title, and to limit potential Crown liabilities for unjustified infringements of Aboriginal title, the federal and provincial governments have taken the position that the assertion of Aboriginal title by a particular First Nation, to a particular tract of land, is not sufficient. From the federal-provincial perspective, a First Nation must first prove Aboriginal title in court, to a particular tract of land, before the federal and/or provincial governments will recognize the existence of Aboriginal title on the ground. Therefore, when First Nations exercise their Aboriginal title and rights on the ground, it is likely that provincial and/or federal governments will drag First Nations, their communities, and their citizens, into court, probably through injunction proceedings. In order to defend themselves from provincial and/or federal legal attacks, where possible, First Nations should professionally document and substantiate their current and historic connection to their lands. Ideally, as a first step, map biographies should be collected from

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each land user (First Nations Citizen), 18 years old up to the Elders. Otherwise, affidavits from Elders and other land users can be used in court. These map biographies can then help First Nation communities and citizens, identify as a priority, within their Aboriginal title territories, their current use areas. Then important cultural or wildlife/plant harvesting sites can be identified within the current use area to be protected on an immediate basis. The historic connection to the land can be documented through Elders Oral history interviews as well as, archival records, genealogy, archaeological studies, and historical maps. It is recommended that First Nations seek legal and professional advice when preparing to exercise Aboriginal title and rights on the ground. The federal and/or provincial governments typically use the courts, police and/or military to challenge First Nations Aboriginal title and rights (ie. Lubicon, Oka, Ipperwash and Gustafson Lake). If challenged, First Nations should be able to establish through oral history, maps etc., a clear connection to the lands/sites/areas where an Aboriginal title activity has traditionally been conducted or is currently planned. (See above re: community participation and public education). It is fair to say that First Nations will likely be challenged by Crown governments, or third party interests, as First Nations continue (or return) to use, occupy and possess their Aboriginal title territories. Over decades and centuries, the Crown governments have unjustifiably given out interests to third parties in all regions of Canada subject to Aboriginal title. Forestry and fisheries are prominent examples of conflict between Aboriginal and non-Aboriginal peoples over resource allocation.

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5.3. Exercising Aboriginal Title and Rights on the Ground. A number of steps need to be considered before First Nations go out and exercise Aboriginal title and rights on the ground. The first step is to organize the people. This starts with the community, but if possible, First Nation communities should try and work together with other communities from the First Nation at the level of a Tribal Council, or similar Tribal organization. The next step involves planning and preparation, including the seeking authority from the community or nation, physical setting, communications, media relations, security, 3 rd parties, etc. Specific activities flowing from this will be the subject of subsequent informational materials developed by DISC, in the form of a how-To guide for community use. 5.4. Supporting Role of AFN National Office. As the Delgamuukw decision acknowledged, Aboriginal title is collectively held by the members of a First Nation. The responsibility for exercising and defending a First Nations Aboriginal title and rights falls to all of the citizens of a First Nation, in accordance with their own traditions and laws. Consequently, the role of the Assembly of First Nations in implementing this component of the six point strategy shall be a supporting one, responding to requests, through monitoring, advice and advocacy. The AFN-DISC and the AFN-Executive Committee will jointly be implementing this six point strategy at the national level. It is up to regional First Nation organizations to take responsibility for clarifying their supporting role to assist First Nations in the exercise and defence of their Aboriginal title and rights.

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5.5. Responsibility. As already stated, it will be up to the First Nations themselves, and their members, to exercise their Aboriginal title and rights. AFN staff and DISC technical team could be made available to provide technical support upon request. Materials generated by DISC and the National Office (particularly re: public education) can be provided to First Nations. DISC members and the National Office can also provide assistance through press releases, participation at events, etc. 5.6. Time Lines. Immediate/short term implementation. 5.7. Cost. Includes travel, human resources, production and distribution of materials. 6. INTERNATIONAL CAMPAIGN. Canada prides itself for taking a lead role in building international organizations and legal instruments, such as most recently the establishment of an International Criminal Court. Those initiatives not only impose international obligations, they should also become part of the national agenda regarding human and indigenous rights. Other nations look to the policies of the Canadian government as parameters for their own dealings with indigenous peoples. This imposes an obligation on the government and indigenous nations in Canada to ensure that their national legislation and policies not only meet international standards, but actually impose higher standards which then shape international policy. As important, international pressure should be used as a means of compelling Canada to change domestic policy, but this needs to be done on a number of levels, and with a number

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of targets. There are three main pressure points to consider: (i) human rights, (ii) economics and trade (including the environment) and (iii) inherent indigenous rights and title 6.1. Themes. 6.1.1. Human Rights. The Human Rights committee of the UN has already concluded that elements of the CPP are incompatible with Article 1 of the International Covenant on Economic, Social and Cultural Rights, which guarantees that a people should not be denied their means of subsistence. The same committee also raised major concerns about Canadas apparent unwillingness to address the aspects of the RCAP recommendations which talk about the restitution of lands and resources. Continued imposition of the CCP is a violation of Aboriginal peoples fundamental human rights, as guaranteed by UN Covenants to which Canada is a party. In this sense, the CCP represents a direct form of economic racism. 6.1.2. Economics, Trade and Environmental Law. 6.1.2.1 Unfair Trading Practises. By not recognizing Aboriginal title as a real legal interest in the land, Canada provides a hidden subsidy to resource extraction companies, since their costs do not have to reflect the Aboriginal interest in the land, or compensation for infringement. This should be regarded as an unfair trading practise, since it puts these companies at an advantage when competing with others. 6.1.2.2. Misleading Accounts. Canadas national accounts do not accurately reflect the Aboriginal title interest of the indigenous peoples, since they are not on the balance sheet as a liability. This provides a

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misleadingly healthy picture of Canadas fiscal health. Existing credit ratings, confidence in bond issues, etc., need to be re-assessed as a result. For corporations too, the same arguments apply. The fact that their tenure and source of supply are not secure is not reflected in their balance books. This has an impact on their creditworthiness, their liabilities, and their stock values. 6.1.2.3. Environmental and Social Consequences. Indigenous peoples are the first to experience and suffer from the environmental and social impact of the exploitation of their traditional lands and resources by the various actors, especially big multinational firms. They maintain a very close and intimate relationship with their land and feel an obligation to protect it for all future generations. Their role in the protection of the environment has been recognized in a number of legal and policy instruments, such as the Convention on Biological Diversity, whose Article 8j foresees the use of the traditional knowledge of local and indigenous communities in the in-situ conservation of biological diversity. Indigenous peoples have been actively involved in the United Nations Environmental Program, the UN Commission on Sustainable Development, but have not yet been given full participation rights. In particular, international negotiations concerning international trade liberalization are often held behind closed doors, excluding indigenous and local populations who experience the negative impacts on the social and natural environment first. Indigenous groups are therefore intensifying their cooperation with environmental groups to ensure that their concerns are taken seriously by the international and the business community. 6.1.3. Inherent Indigenous Rights and Title. The special status of indigenous peoples has to be recognized under international law. As the traditional owners of the land they have the right to self-determination. Aboriginal title in a

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broader sense not only encompasses land and resource rights - it also means exercising jurisdiction over the land and people. Aboriginal title coexists with Crown title on all levels, resulting in a situation of legal pluralism. Many Latin American constitutions recognize legal pluralism and the coexistence of indigenous and traditional jurisdictions. By linking that approach to the concept of Aboriginal title, new spaces can be created to ensure that indigenous peoples can participate as equal partners in the national economy and politics. 6.2. Targets. 6.2.1. Other Governments. Through their embassies in Canada and their delegations to international institutions (ie., United Nations, European Union, OSCE, etc.). Also the European parliament can be asked to take a position on current Canadian policy, politically enforcing its obligations under international law to bring those policies up to the international standard. 6.2.2. Human and Indigenous Rights Forums. 6.2.2.1 Governments and International Organizations United Nations: Economic & Social Council:

C C C

Commission on Human Rights: Working Groups on a Permanent Forum for Indigenous Peoples and on the Draft Declaration on the Rights of Indigenous Peoples) Sub-Commission on the Elimination of all Forms of Racial Discrimination Working Group on Indigenous Populations (WGIP)

Other UN agencies and sister organizations:

UN Commission on Sustainable Development

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C C

United Nations Environmental Programme (Convention on Biological Diversity) International Labor Organization (reports on the implementation of Convention 169 on the rights of Indigenous and Tribal Populations, which Canada has yet to ratify.)

World Intellectual Property Organization (WIPO) (Roundtable on Indigenous Peoples and Intellectual Property)

United States government: Have input into their annual Human Rights Report on Canada. Liaison with the National Congress of American Indians; members of the US Congress and Congressional committees. Organization of American States. 6.2.2.2. Non Governmental Organizations. 6.2.2.2.1. Human Rights Field. Helsinki Watch - European based human rights organization The World Jewish Congress - Headquartered in New York, the WJC has done significant work regarding the restitution of property stolen in Europe during WWII. The Bnai Brith is another Jewish human rights organization, which has under its umbrella the Institute for International Affairs and the League for Human Rights, both of which are dedicated to uncovering and remedying human rights abuses. Other???

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6.2.2.2.2. Indigenous Rights Field. Support groups of indigenous rights: In Europe groups like: Society for Threatened Peoples (Austria, Germany, Italy), Big Mountain Action Group, Incomindios, etc. Networks for indigenous groups:

C C C

Worldwide: organizations like the International Indian Treaty Council, etc. Regional Representations: COICA (Indigenous Peoples of the Amazon), etc. Local Alliances: of indigenous groups in all parts of the world

6.2.3. Economic Sector. Strategic interventions at key economic and trade institutions and bond rating agencies. The World Trade Organization (WTO); The World Bank (Operational Directive 4.1. on Indigenous Peoples); International Monetary Fund (IMF) ; NAFTA; other. Indigenous groups should oppose all free trade agreements unless Aboriginal proprietary interest is dealt with, because those agreements will directly impact indigenous lands. In the future free trade agreements should foresee special provisions protecting indigenous interests, based on their legal position and their cultural identity. Some international agreements already integrate exemptions regarding cultural property and identity, but not with respect to indigenous peoples. Also those concepts are strongly disputed, indigenous peoples have maintained their cultural identity despite the impact of mainstream culture and have defended the concept in the courts. They should therefore be integrated and made instrumental in the process of developing the

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concept of cultural identity on the international level. Bond rating agencies: These are the bodies which assess the credit-worthiness of corporations and nation states, and they wield significant influence in the international marketplace. Two of the premier bond rating agencies are Standard & Poor , and Moodys. Consider the application and extension of strategic boycotts in particular sectors. Another group to consider under this heading is the G7 group of developed countries. 6.2.4. Environmental Sector. Indigenous peoples as the traditional owners of the land and the holders of Aboriginal title and traditional ecological knowledge have a vital interest in the conservation of the environment for all future generations. In this initiative they can closely cooperate, to the extent that their aims correspond, with the scientific community in conducting the necessary research and the environmental protection network. Also, involvement in certification campaigns, ie., Forestry Stewardship Council 6.2.5. Network for Inherent Indigenous Rights and Title. 6.2.5.1. Academic network. Research on legal concepts similar to Aboriginal Title

C C

Native Title in Australia Coexisting Jurisdictions: European Union

Organize international conferences with experts in the field of inherent Aboriginal rights and

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title to land, resources, traditional knowledge and sustainable development

6.2.5.2. Indigenous Peoples Network. Link indigenous peoples all over the world with similar concerns about the protection of their original rights to the national alliance in support of Aboriginal title. Start international communication efforts in different languages to promote and diffuse the concept of Aboriginal title as a collective proprietary interest among indigenous peoples. This would include linking up with the different support networks and the international media (including Aboriginal media) to create awareness. 6.2.6. Other. ???? 6.3. Responsibilities. Roles and responsibilities should be worked out between technical working group and AFN staff. At the political level, duties can be shared out between AFN Executive, DISC members, other nations. 6.4. Time Lines. To begin immediately. Need to sit down and see schedule of events, timing, itinerary, preparation of background materials. 6.5. Cost. ???? E. LINKAGES TO OTHER AFN PROCESSES. There are a number of existing AFN processes which need to be considered in connection

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with the DISC strategy. It will be important to maximize use of existing resources and expertise, and to avoid duplication.

The technical team should work with AFN staff to identify potential areas for cooperation and prepare a detailed listing. What follows are some preliminary thoughts. Delgamuukw Research & Education Initiative. As already highlighted in other parts of this document, this needs to be worked out, particularly with regard to the public education and policy development components of this strategy. Treaty Implementation Process. The AFN already has a treaty process underway, with a focus on implementation of existing treaties. Although the immediate objectives of the DISC are different, it will be important to identify common issues and map out a plan for coordinating closely on those. Technical liaison should occur ASAP. Specific Claims/CCC. For the last number of years, the CCC has focussed on much-needed reform of the federal Specific Claims policy. The DISC has already made use of many of the lessons learned through the JTF experience. It will be important for the two committees to coordinate their work and continue to share experiences. Fiscal Relations. The fiscal implications of a recognition and affirmation policy are obvious, which strongly suggests the need for linkages with this process. Needs discussion.

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Other AFN Programs. Media relations. Economic Development. Other?

ATTACHMENTS. -AFN AGA Resolution 5/99 -AFN Confederacy Resolution 7/00 -AFN Proposal to Canada, 9 May 2000 -Budget proposal from Nahwegahbow, Nadjiwan, Corbiere, to Audrey Mayes, 23 May 2000. -Satsans office: Supporting AFNs National Initiative Regarding Recognition and Affirmation of Aboriginal Title: Policy Analysis and Research (April 10, 2000)