This won’t be a huge post, for once. The norovirus is wreaking havoc on my family and I’m the nurse, hoping I’m not felled in action.
What I want to briefly talk about today are non-derogation clauses, and why they are important.
A non-derogation clause in Aboriginal law generally reads like this:
Nothing in this Agreement shall be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.
This sort of thing allows you to make agreements with various levels of government (usually, but not always federal) that do not somehow, trickily, extinguish any of your rights, whether you have proven those rights or not. In an earlier and longer article, I discussed how these non-derogation clauses are being undermined by clauses intent on ‘quieting titles’. In other words, clauses which do not extinguish aboriginal rights, but which make you contractually obligated not to exercise them. Although this is a huge distinction legally, there is essentially no difference between these approaches on the ground.
As Wilton Littlechild and Constance Backhouse reported recently, a worrisome trend has arisen:
…in laws drafted since 1995, the Department of Justice has experimented with replacing the clear non-derogation language with many weaker variations, which have trended towards a blurring of, and eventual overturning of Parliament’s previously clear presumptive intention not to diminish aboriginal and treaty rights in new legislative projects.
No longer content with watering down non-derogation clauses, the federal government is now experimenting with getting rid of them completely. Two major examples of this have come up recently, and need some serious and immediate attention.
Desperate for safe water? Here have a non-derogation derogation clause.
With the wording of a proposed new law, the Safe Drinking Water for First Nations Act, the campaign to erode the constitutional and legal status of aboriginal and treaty rights has come full circle.
For the first time, a new law would include an active “derogation” provision; that is, the proposed law explicitly states that aboriginal and treaty rights deemed to be in conflict with the law’s stated objective will not be respected. And for the first time, a new law would contradict promises made to aboriginal peoples in treaties as to the interpretive primacy of those treaties.
Many aboriginal peoples are desperate for improved water supply after decades of federal underfunding. In a cruel feature of the new law, eligibility for future federal funding support for improved water services would be tied to willingness to live under the new derogation regime created by the proposed law.
The clause referred to is section 3:
3. For greater certainty, nothing in this Act or the regulations is to be construed so as to abrogate or derogate from any existing Aboriginal or treaty rights of the Aboriginal peoples of Canada under section 35 of the Constitution Act, 1982, except to the extent necessary to ensure the safety of drinking water on First Nation lands.
At first glance, this clause looks like your standard mumbo jumbo non-derogation “don’t worry your rights are protected” clause, but that last bit makes a huge difference. It is typical legal double speak. “Your rights are protected… unless we need to violate them to carry out this legislation that we did not create with adequate consultation with you and further, we will not consult with you as we carry out these legislative duties.”
This issue has been raised again and again, very vociferously by many different groups and nothing has changed. If you think I may be exaggerating, look again at the article I provided, scroll down, and peep the various organisations and individuals who have signed on in support of its conclusions. This is a serious threat to aboriginal rights and marks a very aggressive approach to legislating on indigenous issues.
Desperate for your annual funding? Sign this and don’t read too closely.
Now what is really getting my knickers in a twist right now, are the hundreds of Contribution Agreements which have gone out this year to First Nations. Eagle eyes have noticed that this year’s round of CAs, which detail how the federal government will disperse monies for essential services to First Nations (for health, education, housing, infrastructure and so on), are not like last year’s. In Saskatchewan:
The [CA] appendix allegedly requires the bands to support federal omnibus legislation and proposed resource developments as a condition of accessing their funding. Some bands have already signed the funding agreements out of necessity, noting that they did so under duress, and at least two others allegedly did not. “As of April 1, 2013,” one source said, “they will have no funds because they did not sign the agreement.”
In Burnt Church, they noticed that there was no non-derogation clause in the Contribution Agreement at all.
Essentially this is a two-pronged approach. Taking out the non-derogation clauses opens up these agreements to side-effects on aboriginal rights that are impossible to fully predict and are extremely worrisome. And let’s be frank. Why take them out? If they have been there for years, why now decide that they aren’t needed? Littlechild and Backhouse laid out the context pretty succinctly. This is a deliberate shift.
In addition, the kinds of legislation that these agreements are requiring First Nations to abide by seem to be tailored to specific regions, as not all of them are reported as having the same clauses. One west-coast band has signed an agreement which requires that First Nation to accept the contentious First Nations Financial Transparency Act, while other agreements seem to focus on other policies or pieces of legislation.
Do you know what is in your First Nation’s CA this year?
Strong arm tactics, with serious potential consequences
Some First Nations are trying to hold firm and refuse to sign their CAs for the year, in the hopes that the agreements will be changed back to what used to be the norm. Right now, it does not seem that the federal government is willing to budge on this.
It is very, very important that people become aware of this issue, now. If First Nations are not able to flow funds as of April 1st because they refuse the imposition of these snuck-in clauses and lack of non-derogation clauses, the results are going to be scary. This is nothing short of economic blackmail whose effects are going to be felt by some of the poorest people in Canada, in mere weeks.
I am hoping you will share what you know of the Contribution Agreements in your First Nation, either here or on social media. This story has come up a few times, but I really feel that a sharp focus is necessary now.