Are you alarmed? You should be.

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.

The first example can be found in the proposed Safe Drinking Water for First Nations Act (Bill S-8). From the same article:

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.

Many thanks.

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Categories: Aboriginal law, First Nations, INAC

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26 Responses to Are you alarmed? You should be.

  1. Bekka says:

    This frustrates me and breaks my heart. As if I needed further reasons to believe the Harper government is destroying our country.

  2. Here is a current clause that was submitted:

    Nothing in this Agreement will:

    (a) be construed to diminish, derogate from, or prejudice any treaty or aboriginal rights of the (name of FN or Tribal Council);

    (b) be construed as modifying Treaty (#) or creating a new treaty within the meaning of the Constitution Act, 1982;

    (c) prejudice whatsoever any applications, negotiations or settlements with respect to land claims or land entitlement between Canada and (name of FN or Tribal Council);

    (d) prejudice whatsoever the implementation of any inherent right to self-govenrment nor prejudice in any way negotiations with respect to self government involving the (name of FN or Tribal Council). ”

    This Contribution Agreement has a good non-derogation clause, though I’d toss in the word ‘abrogate’ just to be safe. Still, this one hasn’t had the non-derogation clause yanked, that’s a good sign.

  3. Makes one think the Harperites have a team of legal advisors, probably working in secret, dedicated to creating legal language with the intent of eroding aboriginal rights. Instead of death by a thousand cuts (or as well as), it’s death by a thousand deletion and insertions. They keep this up, and we won’t even recognize Canada anymore. Wait, where have I heard that before?

  4. allen deleary says:

    Apihtawikosian is correct, it is the Department of Justice, this is a purposeful action. Legitimized financial hostage taking.

  5. I admit that I don’t know much about this issue and I am definitely seeking to learn more. I am in full agreement with everything you say (and am a huge fan of your blog)…But would you mind giving me an example of rights that would be violated during the process of ensuring safe drinking water on First Nations lands. As an outsider looking in I can’t help thinking that safe drinking water is absolutely crucial to life. Shouldn’t everyone be doing everything possible to provide it? Or is it the fact that in order to get safe drinking water the First Nations have to sign onto this idea of agreements with no non-derogation clause…hmm…did I just answer my own question? lol.

    • A more fulsome discussion on access to safe drinking water on reserve can be found here, including a deeper critique of the proposed legislation:

      Aboriginal rights are not the reason that 20% of First Nation communities do not have access to safe drinking water at any given time. They are not an obstacle that need to be overcome with a derogation clause. So then why is a piece of legislation deliberately contemplating the violation of aboriginal rights despite the loud protest over this, and the total lack of consultation on the design of the legislation itself?

      • jbear says:

        because the ultimate goal of any colonial government is the total erasure of indigeneity. it will accomplish this through legalized ethnic cleansing (6.1, 6.2) and the death of a thousand cuts…by eroding treaty rights a little bit here, a little bit there rather than a whole sale culling of them, they will succeed. there are many fires going on right now and many changes to how treaty rights are being interpreted and implemented, but no clear plan or strategy coming out of the aboriginal community as to how to fight back. no unity, no common vision, no concerted orchestrated tacticians to offer a roadmap and defensive line. this is canadas equivalent of the IRA in the us. INM was awesome, but what are the long-term strategies? you cant promote social change without being willing to be in it for the long haul and to get dirty, especially considering who we are dealing with.

      • Thank you for taking the time to respond. I greatly appreciate it!!

  6. fem_progress says:

    I smell a Flanagan under this.

    I smell racism too. They thought the band boards would be too dumb to notice?

    And it is typical Ayn Randian philosophy: the poor are inferior and lazy, let’s punish them, let’s eradicate them.

    I am a settler and I am furious, sad and appalled by this.

    Chii miigweitch / marsi / merci for explaining it so clearly.

  7. andie says:

    “except to the extent necessary to ensure the safety of drinking water on First Nation lands.”
    I really appreciate that you take the time to write these posts. I have learned so much. I’m a fairly intelligent person, and reading the above quote, without your explaination, I know I would have felt that this sounded entirely reasonable. But with your help, I understand now that it is not. Thanks for helping me to see things more clearly, I believe you are doing a huge service to the people who read your posts. I hope your family is feeling better soon!

  8. Tina M Pearson says:

    Thank you for posting about this, and including the current clause.
    Is there a campaign for letter writing or other initiatives that concerned folk can support?
    Good wishes for you and your family through the norovirus too.

  9. jbear says:

    my band tried to hold out, but were straight up told that they would get nothing unless they signed it and that it was going to stay worded as it was…the timing is absolutely intentional since the new fiscal year is starting in april. the chief and councilors consulted an indigenous lawyer but without much time to do anything, there wasn’t anything they could practicably do. they are holding an emergency meeting today. a more classic case of economic blackmail i have never seen….my band is small and poor….for instances like this it would be nice to have an actual indigenous coalition to help with class action suits so that poorer bands did not have to shoulder legal costs on their own. im so frustrated with the aboriginal community right now…ive been waiting all my life (im not a leader, im a supporter; i recognize my own limitations as well as my own assets) for an ndgns organization that was effective, focused, unified, powerful and unafraid to represent the real ndgns issues. the afn is a joke. its approach is passive-aggressive kowtowing to a colonial government that is not going to change its ways any time soon…what is needed is an indigenous think-tank full of tribal nationalist loyalists (who either have no internalized racism/colonialism issues or have long since dealt with them) who are using their band-sponsored educations to actually give back to the community. i always do my own thing and give back in ways that i can, but im frustrated because the communities across canada are too preoccupied with defending their own crumbs.we need unity and there is only strength in unity. once the tribal nations realize this and come together to create a truly indigenous centered organization and pool resources in a shared vision of empowering each other against colonialist oppression will anything in canada truly change. yes there are white people who are allies, but the colonial government, especially this one, is not; indigenous land rights are the root of this as well as racism. so whats the solution? they just keep squeezing and squeezing and taking more and more treaty rights away, eroding the protections for our rights by using economic blackmail like this and simply by just changing policies without consultation despite the duty to consult stuff. they will not stop until we have NO treaty rights left….its the colonial imperative to do so. dawes allotment act, anyone? IRA? the americans have already been down this path and it wreaked havoc on ndgns lands and rights…

    • I absolutely agree with your vision of what kind of organising needs to be done. The approach that has been taken has not worked, because we are not dealing with reasonable people, we are dealing with supremacists who honestly believe they know what is best for indigenous peoples. You cannot bargain with people who come from that fundamental position.

      I am hoping that what is coalescing is a new way of working together, because we do need to support communities who are struggling to face these attacks.

      • jbear says:

        im still in school but im graduating soon, i want to go to law school too afterwards. i dont want money, for me its never been about money, i dont mind being poor or living modestly as long as i have a roof, enough food, and an internet connection. i dont need a brand new car or whatever….for me its always been about my band, my tribe, my ancestors homelands & justice. money cant buy true justice, but it can buy the tools to arm people toward achieving it….what i want is knowledge to help protect what rights we have and to (hopefully) build upon them. id work for my band for nothing, if i could. i just dont know what it is going to take for the tribes to converge. i hope it happens in my lifetime. it would be awesome to see….i had this idea that i would found a school based on indigenous pedagogy, but also modeled after a warrior society where the kids would learn about western ways, but it would be supplemental, not the core curriculum. they would be trained to be physically independent and take care of themselves, just like in the old days….kinda like a west point for ndgns kids but based in traditional tribal values. anyways, if you cant dream it then you definitely cant build it….what are the new visions and dreams for ndgns ppl? because capitalism is a huge mistake; look what its done to the world and white people. gilles deleuze said: “people tend to confuse winning freedom with conversion to capitalism”….i sure hope the aboriginal communities in canada do not make that same mistake 🙁

    • Gitkxaala Nation Hereditary Chiefs, in right of Gitkxaala Nation Hereditary Government, and citizens, refused to sign a ‘contract’ to create ‘reserves’, under the McKenna McBride Commission, 1916.
      Their reasoning was simple, and straightforward. We were here before anyone, before (a) terra nullius and (b) ‘the Christian theory of discovery’, figments in British imagination, Mabo, 1992, High Court, Australia, striking them down.
      THEREFORE, we still own everything.
      CONCLUSIVELY, Miyanm {God] created us, placed us in the land He created for us and bequeathed it to us, including all of the resources in it, to own. That is unalienable, that is, Great Britain and Canada cannot remove it from us. We cannot give it away. Great Britain and Canada cannot take it away from us.
      Canada is using s. 35, Constitution Act, 1982 (Canada), and ‘Indian Act, 1876’, including ‘band custom’, to steal our resources, while rewarding governments, businesses, industries, and other third parties, to keep us impoverished, and ensure their tenure.
      The Royal Proclamation, 1763, did not create us.
      S. 91 (24), British North America Act, 1867 (Great Britain), did not.
      S. 35 (1), Constitution Act, 1982 (Canada), did not.
      ‘Indian Act, 1876’, did not.
      ‘Band custom’ did not.
      There is only one way to reclaim all that Miyanm has created, and bequeathed, to us, especially the Land (Acts 17:26) and the Government He ‘ordained’ for Gitkxaala Nation at the beginning of time (Romans 13:1-5). We must go back to natural law, aka the laws of nature, nature’s God, the Laws of God.
      ‘Matthew Henry’s Concise Commentary

      2:1-5 Lest Ezekiel should be lifted up with the abundance of the revelations, he is put in mind that still he is a son of man, a weak, mortal creature. As Christ usually called himself the Son of man, it was also an honorable distinction. Ezekiel’s posture showed reverence, but his standing up would be a posture of greater readiness and fitness for business. God will speak to us, when we stand ready to do what he commands us. As Ezekiel had not strength of his own, the Spirit entered into him. God is graciously pleased to work in us whatever he requires of us. The Holy Spirit sets us upon our feet, by inclining our wills to our duty. Thus, when the Lord calls upon the sinner to awake, and attend to the concerns of his soul, the Spirit of life and grace comes with the call. Ezekiel is sent with a message to the children of Israel. Many might treat his message with contempt, yet they should know by the event that a prophet had been sent to them. God will be glorified, and his word made honorable, whether it be a savour of life unto life, or of death unto death.’
      More than anything, it means being idle no more to the call of duty to reclaim Gitkxaala Nation original land, and original government.

  10. historicuss says:

    While supremacists may honestly believe they know what is best for indigenous peoples, they have no intention of doing that. Their intent is as always to do what they think is best for themselves. That is what privilege and supremacy entail.

  11. Lorraine says:

    Please watch this by clicking on the link to you tube.

    Press Conference Chief Dumas March 20 2013 . meegwetch

  12. Lorraine says:

    Our ancestors are walking with us today.We have the strength of all that were murdered by the barbarians .Do not be afraid.The future is ours.
    The civilized nations of the earth are now watching how barbarians are treating and trying to destroy us with the final solution of the indian problem as they call it.
    After all they have done to us we are still here on our land.


  13. Sharon Jackson says:

    Jesus. get a load of this. It makes me want to puke. You don’t need to approve this comment, but you might want to check out this link

    • Yeah, I’ve seen it. It is a lot like the comments a recent person was making here, who was deleted and banned. Something about older settler men and their racism that is particularly creepy.

  14. Derek says:

    Nakurmiik Chelsea! Thanks for bringing attention to this issue and for mentioning it to the N2N Toronto conference last month.

    Inuit first noticed this pattern of Feds watering down non-derogation clauses in 2002 with changes to the Nunavut Waters Act. In Inuit regions the dilutions have continued, broadened, and worsened.

    One attempt to stem this and protect Indigenous rights is being mounted by Nunavik Senator Charlie Watt: he’s introduced Bill S-207 (2nd reading) to put a blanket interpretation across all federal legislation that affirms non-derogation.

    See also this 2007 report:Taking Section 35 Rights Seriously: Non-derogation Clauses relating to Aboriginal and treaty rights.

    • Thank you, excellent resources! As pointed out in the Littlechild article, there has been a push for some time to enact non-derogation legislation but no political will to get it done. Glad to see the issue is being forced!

  15. Cathy Caccavella says:

    The First Nations of Canada are not the first aboriginal people enticed to swap rights for “safe water” — “human rights” campaigns have been extant in Africa for years using this same ploy. The fight for control of the water supply was famously fought in California in the nineteenth century, and still being waged between Nevada and California for control of the contents of the Colorado River. The goal is control of water rights, that being the one commodity absolutely necessary to the sustenance of life on this planet, and therefore essential to political control.

    Canada has got a lot of water. The technology of how to maintain potable water near human habitations is not that difficult to learn, and as a final resort, if one does not trust the water in the lakes and rivers, one can sink a well, or as the irreducible minimum, boil the stuff.

    The First Nations of Canada have survived for centuries without anything but their own knowledge and ability to solve the environment in which they live. To be held hostage by the idea of “unsafe water” is, well, its just dumb. And the next time this “threat of scarcity” is proposed grab a map of Canada and start counting the lakes and rivers, and adding up their square miles, depths and capacities until you feel better, fax a copy to the official in charge and keep your pen in the desk drawer where it belongs.

    The First Nations are a clever people endowed with a capacity for sly humour — I’d like to see that cleverness applied to the bureaucratic conundrums with which they are continually faced.

    I guess the first step to that is to acknowledge the value of who they are and what they have.

    A look at the bigger global picture may also help. Canada and Russia are the great fresh water reservoirs of the planet. ‘Nuff said.

  16. Pingback: “Gitjimitj Harper,” Idle No More: Round Two | Wabanaki Press

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