Opinion: Concerned about the ‘New Path Forward’

In 2015, the Liberal Party of Canada’s election platform included the promise to implement all Truth and Reconciliation Calls to Action and to endorse the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). 

Once in power, the Trudeau Liberal government advanced a domestic interpretation of UNDRIP through Bill C-15, the United Nations Declaration Act and a government-wide National Action Plan that applies to First Nations, Metis, and Inuit, with a list of 181 federal measures/actions in five chapters. 

In the First Nations chapter, the plan gives public notice that for “Canada’s laws to fulfill the UN Declaration, the Indian Act must be repealed.” 

For the past nine years, the Trudeau government has already started the process to end the Indian Act band/reserve system by transitioning all First Nations into municipal self-government with the legal status of a “natural person” (this is the same legal definition that applies to corporations) with powers to deal with other levels of government, to sue and be sued, and to hold and dispose of property. 

Several years ago, the prime minister told an Assembly of First Nations (AFN) Special Chiefs’ Assembly that all First Nations are on the journey to “full self-government status across the country … my commitment is that we will work with you on the journey to self-government.”

An example that’s close to home is the 2001 Kanesatake Interim Land Base Governance Act, which already provides that the “Mohawks of Kanesatake have the capacity of a natural person… (and) Mohawks of Kanesatake shall act through the Council in exercising the jurisdiction and powers under this Act.” 

There are already 25 self-government agreements affecting 43 communities; these are the templates for the rest of the 600+ First Nations (bands) across Canada in discussions/negotiations at federal “Recognition and Self-Determination” tables. The Mohawk Council of Kahnawake (MCK) is at one of these tables.

Canada defines Indigenous “self-determination” through its domestic self-government policy and legislation, NOT the international right of peoples to self-determination contained in the United Nations Covenant on Civil and Political Rights and the Covenant on Economic, Social, and Cultural Rights.

It is in the context of Canada’s version of UNDRIP described in its National Action Plan, that on April 17, 2024 – the 22nd anniversary of Canada’s Constitution Act 1982, becoming law – then-MCK Grand Chief Kahsennenhawe Sky-Deer and federal Minister of Crown-Indigenous Relations, Gary Anadasangaree, signed a Memorandum of Understanding (MOU) they call a “New Path Forward,” establishing a funded process to discuss/negotiate MCK priority issues, to get Kahnawake out from under the 148-year-old colonial Indian Act, particularly the sections of the Indian Act controlling eligibility to be registered for Indian status, band membership, and reserve land management; including Canada issuing certificates of possession to individuals not on the Mohawk Registry as well as broader issues like economic development and trade and commerce. 

The issues of economic development, trade, and commerce are connected to matters now before the courts in the White-Montour tobacco case, which has been appealed by the government of Quebec.

So now, the recently elected MCK has inherited implementation of this “New Path Forward” MOU to address the MCK relationship with the government of Canada through the Ministry of Crown-Indigenous Relations and Northern Development Canada (CIRNAC), although the MOU says “Kanien’kehá:ka of Kahnawà:ke” represented by the MCK and “His Majesty the King in Right of Canada” represented by CIRNAC.

In 2019, as part of the Trudeau government’s two-track (short-term & long-term) approach, the Department of Indian Affairs was dissolved and replaced by two new Indigenous departments: Indigenous Services Canada to deal with the transfer of on-reserve programs to bands and capacity building to prepare bands for self-government, and Crown-Indigenous Relations to deal with rights of Indigenous Peoples.

CIRNAC’s legislative mandate is to negotiate Indigenous rights within the federal legislative and policy framework regarding section 35 constitutional rights and Canada’s interpretation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Under Canada’s legislation, CIRNAC Minister Gary Anadasangaree is responsible for:

(a) exercising leadership within the government of Canada in relation to the affirmation and implementation of the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and the implementation of treaties and other agreements with Indigenous peoples; 

(b) negotiating treaties and other agreements to advance the self-determination of Indigenous peoples; and 

(c) advancing reconciliation with Indigenous peoples, in collaboration with Indigenous peoples and through renewed nation-to-nation, government-to-government and Inuit-Crown relationships. 

Further to this, on December 16, 2021, Prime Minister Justin Trudeau issued a mandate letter making it clear what the top priority of whoever the minister of Crown-Indigenous Relations is:

“As Minister of Crown-Indigenous Relations, your first and foremost priority is to work in full partnership with First Nations…as they transition to self-government and move away from the Indian Act.

Under federal laws the Trudeau government got passed in Parliament (Bill C-91, C-92, C-97), band councils – including the MCK – are already defined as “Indigenous Governing Bodies” until a band reaches “full self-government status” as a “Self-Governing First Nation,” and then it gets funding through the “Collaborative Self-Government Fiscal Policy,” which is formula based, so the federal government can reduce federal spending by sharing costs of governance and program delivery with the “Self-Governing First Nation.”

The terms of the self-government agreement also require an Indigenous government to use its own-source revenues, including taxation, to share the costs.

Another example close to home to consider, the Mohawks of Akwesasne are in the final stages of negotiating an Entewatatha:wi Self Government Agreement. As an Akwesasne September 2022 newsletter explains, the “Mohawk word Entewatathá:wi loosely translates to ‘we will govern.’ Entewatathá:wi is a project through the Mohawk Council of Akwesasne to negotiate the Entewatathá:wi Self Government Agreement (ESGA) with the Government of Canada.” This negotiation is within Canada’s policy framework. 

To conclude, in my opinion, this MOU signed last April, is consistent with Canada’s municipal self-government plan, but to my knowledge, it has not been widely shared or discussed with Kahnawa’kehró:non – despite the huge implications for the future of the community – especially the option to return to traditional government.

I had problems getting a copy of the MOU myself.

To be clear, I am not questioning the intent of the MCK as a party to the MOU with CIRNAC. I believe they are sincerely trying to protect the rights and interests of the community.

However, I am concerned about Canada’s national plan to likely use the MOU process to advance their definition of UNDRIP to end the Indian Act, by defining “self-determination” and “self-government” as an Indigenous municipal corporation under continued federal and provincial domination and control. 

Kahnawa’kehró:non need to have serious discussions about what “self-determination” means. Canada has defined it in federal policy, and the courts are already deciding what it means within Canadian law in the White-Montour case, which is working its way through the courts.

Now is the time to act before it’s too late!