Indian Affairs Minister Andy Scott says extinguishment is a thing of the past

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Indian Affairs Minister Andy Scott dropped a bombshell on May 31. Scott announced during the federal cabinet policy retreat with leaders of five national Aboriginal organizations that the federal government is abandoning its policy of seeking the extinguishment of Aboriginal rights during land claim and self-government negotiations.

He didn't call a press conference or send out a news release to tell the world of this decision, one that would be of monumental importance to First Nation, Metis and Inuit people if it turns out to be the real deal. It came up as a result of questioning during a teleconference with the Aboriginal media on June 1.

A reporter with SOCAM, the Quebec Native communications society, asked the minister if the federal policy of extinction of Aboriginal rights in negotiations would continue now that the federal government has signed political accords framing self-government discussion with Aboriginal organizations.

"We believe that we should be negotiating around an evolving relationship with First Nations in coexistence rather than extinction," Scott replied.

But the policy is still there, the reporter said.

"Well, this was just yesterday. We made a decision and I made a decision on behalf of the government of Canada that, going forward, the basis of our negotiations will be an evolving relationship and coexistence," Scott said.

The reporter obviously had a hard time believing what he was hearing and asked the question again.

"Yes, the intent here very, very specifically is to be negotiating on the basis of an evolving relationship, that there isn't a static moment that you can mark a line in the sand. It's an evolving relationship and therefore we're negotiating coexistence rather than extinguishment," the minister said.

Suspecting the minister's words were one of those carefully crafted government "spins" on what was really going on, Windspeaker returned to the subject.

"I'm reading now specifically from the documentation," Scott said. "This will include a commitment to renew policies and processes for the implementation of self-government, resolution of Aboriginal land rights and the implementation of both historic and modern treaties based on principles of recognition and reconciliation to mean an on-going coexistence rather than having as the objective extinction."

Scott said the new way of doing business described in the accords requires that Aboriginal leaders, the federal government and, to some extent, the provinces sit down and work out policy direction together. He said all of the details of the new emphasis on coexistence will be dealt with in that manner.

"I just said that's exactly what we're going forward with," he said when asked to be clear that the government would no longer demand extinguishment of rights during negotiations. "And I'm not going to prejudge the outcome of those discussions because, if I do that, I will be breaking faith with the very relationship that we have renewed, that we're going to be doing all of this together."

Just over an hour later, Assembly of First Nations National Chief Phil Fontaine held a teleconference of his own with the Aboriginal press. He also brought up the "major policy shift" the federal government had made.

"No longer will we be talking about extinguishment and that was made very, very clear," Fontaine said. "We also talked about the inherent right and we're not going to get any argument from the government, and the prime minister made that very clear. The inherent right exists, has always existed. The problem we both face is how to give effect to that right. So we're pleased about that."

If it happens, it will take a huge amount of work and a lot of attitudes in many government offices will have to undergo a serious overhaul. By coincidence, just days before the announcement, a Lubicon Cree official, furious that negotiations with the federal government were at a standstill after more than 0 years of fruitless talks, provided Windspeaker with a package of information that includes "Guidelines for Federal Self-government Negotiators." The documents are marked "secret" and although they're dated March 1996, a letter written by Lubicon Chief Bernard Ominiak states the Lubicon obtained them late in 2003. Fred Lennarson, a long-time advisor to Ominiak, said the band's negotiating team believes, based on its experiences, that the guidelines are still in use.

The Justice department lawyers who compiled the guidelines for federal negotiators wrote that the federal Liberal government's policy recognizing the inherent right of self-government "goes considerably beyond what the government would be prepared to accept as a strict matter of law, if it were forced to litigate the matter before the courts."

The guidelines go into great detail as to how to word clauses in agreements, warning away from words that a court would see as a sign the government is recognizing the inherent right of a specific First Nation. The idea put forward is that the government recognized-and enshrined in Section 35 of the Constitution-that there is a general inherent right to self-government that all First Nations possess in theory, but few, if any, possess it in practice.

General recognition of the inherent right is preferred by the Justice lawyers because it means no specific right is recognized.

"Under this approach, recognition of the inherent right is explicit but we remain agnostic as to which groups actually have such a right," the secret document states.

"They're advising the negotiators how to make non-binding agreements," Lennarson said.

Another group that has been at odds with the federal government is wary of the announcement that extinguishment is no longer a federal goal. Glenn Williams, the chief negotiator for the Gitanyow Nation in north-central British Columbia, said pressure to extinguish rights is still being applied to his people. He was surprised t hear about the minister's promise.

"We've been really hung up on our negotiations over the last two-and-a-half years on the very issue of the department of Indian Affairs, who is responsible for protection of our rights, insisting on termination of our rights and title and converting those to treaty rights. I have not heard a thing from the federal treaty office in the last three months and if there was a change I'm sure they would try and get hold of us. But so far, I haven't heard a thing," he said on June 15.

The Gitanyow won in British Columbia court when they sought a declaration, in the Luuxhon case, that the government must negotiate in good faith, with no sharp dealing. After the court win, then Indian Affairs minister Jane Stewart chose to appeal the ruling that the government must negotiate in good faith. The two sides agreed to try and work through their disagreements outside of court, Williams said, but no progress has been made.

"The Luuxhon case is in abeyance. Thus far really nothing has happened there and we're considering what options to take in the next couple of months or so," Williams said.

Recent work by the Gitanyow along the same lines now endorsed by Minister Scott were mocked by Indian Affairs officials, Williams said. "We did a lot of work on recognition and reconciliation of title and rights for our people. And we did put forward a model on certainty that's about recognition of who we are on rights and title and how we would like to see a treaty protect those rights and then develop a relationship in the body of the treaty," he said. "The department of Indian Affairs, when they saw our model, called us stupid. They said, 'This is just stupid.' I haven't seen any change. It would be nice if there was a change. I think we would be in a position to advance an agreement based on recognition and also on the protection of our rights."