National chief gets mandate on accord

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If the federal Liberals are still the government on May 31 and the scheduled cabinet retreat with Aboriginal leaders actually takes place, Phil Fontaine, the national chief of the Assembly of First Nations (AFN), will have a concrete plan to present to the prime minister that will move First Nations self-government forward on the national agenda.

We say if because testimony at the Gomery inquiry into the federal sponsorship program may tip the scales in favor of an election. If that's the case, the work done at a special assembly of the AFN in March will be put on hold until a new federal government is formed.

The special assembly held in Vancouver from March 29 to 31 dealt with a document produced by the AFN's Joint Committee of Chiefs and Advisors on the Recognition and Implementation of First Nation Governments.

The 60-page report generated by lawyers, chiefs and academics concludes with an accord that spells out how the federal government and the AFN will work jointly to set up real First Nation governments.

Ottawa lawyer Dave Nahwegahbo and James (Sakej) Youngblood Henderson, research director for the Native Law Centre of Canada at the University of Saskatchewan, explained the technical aspects of the accord to the chiefs in assembly. Veteran First Nation technicians Marie Smallface Merule and Dr. Harold Cardinal provided insight into the political thinking behind the approach. Cardinal, a key figure in the fight against the 1969 white paper on Indian Affairs, is seriously ill, undergoing treatment for tumors in his lungs. He travelled to Vancouver to make his presentation, but faltered once he entered the assembly hall. Supported by his wife and two sons, he sat in the audience as his son Sheldon, an AFN employee, read his remarks.

The plan calls for a formal political accord between First Nations and Canada, a joint framework for the recognition and implementation of First Nation government, and immediate initiatives to support capacity development. The plan also calls for the elimination of the department of Indian Affairs and calls for it to be replaced by a new ministry of First Nations-Crown Relations and an Aboriginal and treaty rights tribunal.

The report and accord can best be summarized as an attempt to take stock of and analyze past bureaucratic devices employed to frustrate First Nation aims. The accord is a carefully worded agreement to be signed by the prime minister and national chief that seeks to cut off access to any future opportunities for the Crown to split hairs and avoid honoring the spirit of the agreement.

"It establishes a relationship and a commitment," said Henderson.

Earlier, Henderson emphasized that there is no national policy in existence right now for implementing treaties. He told the chiefs that Section 52-1 of the Constitution Act, 1982 makes the Constitution the supreme law of the land that overrules any law that disagrees with it. Since Aboriginal rights are enshrined in the Constitution under Section 35, any decision or action by any government official that does not respect Aboriginal rights is of no force or effect in law. He called the idea "constitutionalism" and said chiefs must start confronting all government officials with the concept on a regular basis.

The inherent right of First Nations' self-government pre-existed Canada and was not created, only recognized, by Section 35, he said, and therefore any government policy that works against First Nation self-government is unconstitutional and illegal.

Regional Chief Bill Erasmus enthusiastically agreed with that idea.

"We are the only people in the country not exercising their constitutional rights," he said. "It's a miscarriage of justice so it's more than policy."

Nahwegahbo revealed the pre-emptive nature of the accord's wording.

"I think we have to assume the government will resist," he told the chiefs. "If not, that's great. But we have to prepare."

On March 30, the ciefs and proxies at the special assembly came to a consensus decision that the committee's work was acceptable, essentially arming Fontaine with support for the cabinet retreat.

But support didn't come without overcoming obstacles.

The Alberta chiefs' protocol is that chiefs that attend AFN meetings will not make commitments on behalf of the other Alberta chiefs. They take information received at national assemblies back to Alberta and return with the decision reached by all chiefs in the region.

Tsuu T'ina First Nation Chief Sanford Big Plume and Alberta Regional Chief Jason Goodstriker each explained the process to the other regions. Neither offered any criticism of the accord. They explained that the Alberta position is that they will not delegate dealings with the Crown to anyone since their treaties are nation-to-nation agreements involving only themselves and the Crown. Big Plume suggested that Alberta would bring back its decision on the report at the scheduled annual general assembly in early July.

But that would be too late for Phil Fontaine to take the accord to the cabinet retreat and tell the ministers that his organization was fully behind it.

The idea was floated to vote to support the accord in principle so Alberta would not have to go on record in favor before consulting with the other chiefs.

The national chief was asked if that would be good enough.

"I'm not certain if something is accepted in principle here, I'm not sure it will carry the same weight with the prime minister," he said.

Assembly of Manitoba Chiefs Grand Chief Dennis Whitebird spoke against the idea.

"It would be like sending our leader into battle without any bullets," he said to applause.

First Nations Summit task force member, Chief Doug Kelly, while acknowledging the right of the Alberta chiefs to follow their own way of doing business, supported a call to vote on the report.

That led to the next problem.

Barely one-third of the First Nations aross the country were represented at the assembly, and that number diminished as the day's debate progressed and a vote on the accord approached. Fearing that the assembly could not meet the threshold for a quorum, James Wilson, representative of the Kwakuitl District Council (B.C.), rushed to a microphone.

"I haven't heard anyone speak against the resolution," he told the co-chair. " We may not have to vote."

The AFN charter calls for the chiefs in assembly to attempt to reach consensus on issues in the traditional way and resort to a vote only when consensus cannot be achieved. The charter is silent on whether a legitimate consensus can be reached amongst a group that is not large enough to satisfy quorum requirements.

But, with only a handful of chiefs abstaining from declaring their consent, no one spoke against the resolution and the co-chair declared it carried by consensus.

While he missed large portions of the assembly, meeting with British Columbia Premier Gordon Campbell and other high profile people in the province, Fontaine was present at the end of the assembly to congratulate the chiefs for their work.

"We leave here so much stronger. We leave here so much more unified than we've been in some time and that's good and to your credit," he said.

Later, in an official release, the national chief had more to say.

"We have worked together and made a genuine effort to establish a stronger voice for this assembly and for First Nations across Canada," said Fontaine. "We have agreed on a plan that will lead us to real self-government. We will be authors of our own destiny. We have a common vision, a strategic plan and a way forward.

"First Nations must have the ability to set our own strategic direction," said Fontaine. "We can build thriving and viable communities and nations that contribute to the cultural, economic and political life of the country. We cannot afford to lose another generation. We will be presenting our plans to the prme minister and cabinet and to provincial, territorial and federal leaders at the upcoming first ministers meeting in the fall. If Canada truly believes in justice and economic opportunity for all then they will say 'yes' to our plan and 'yes' to a better future."