More proof has emerged of Indian Affairs’ attempts to crush the small First Nation of Barriere Lake in north-western Quebec. Under court-order, the federal government has been forced to release a private report written for Indian Affairs Minister Chuck Strahl by an ex-top Diplomat in late 2007. The report lays out a wide-ranging set of schemes to undermine Barriere Lake’s Customary Chief and Council and ensure that the community’s Trilateral agreement never takes on life. It demonstrates what the community has known for a long time but which the Department of Indian Affairs has always publically denied: the federal government has refused to implement the Trilateral agrement because it fears it would throw into question their Comprehensive Claims process, which amounts to a modern-day land grab.
The analysis below lays out the full implications of the report.
Meanwhile, Indian Affairs continues to refuse to recognize the legitimate Customary Chief and Council of Barriere Lake, re-selected under their Customary Governance Code in June 2009. This has severly hampered the community's ability to advocate for their rights and see that the Trilateral agreement is implemented. Please take a few minutes to write the government to demand they recognize and start dealing with Barriere Lake’s legitimate leadership:
http://barrierelakesolidarity.blogspot.com/2009/07/action-alert.html
--Barriere Lake solidarity collective
Another Smoking Gun:
Top Diplomat’s report to Minister laid out strategy for government subversion of Algonquin communityBy Martin Lukacs
A document recently released under court-order reveals a former prominent diplomat officially advised Indian Affairs Minister Chuck Strahl to undermine the elected leadership of the Algonquin community of Barriere Lake and quash their signed Trilateral agreement - a course of action then pursued by Strahl and the Department of Indian Affairs. The advice revolves around the threat that the agreement's implementation would pose to a key government policy controlling unsurrendered native lands.
The report to Strahl was prepared by Marc Perron, a representative for the Minister during an alternative dispute resolution process between the federal government and the small First Nation in the fall of 2007.
Before leaving retirement to take on special roles for Indian Affairs, Perron gained a reputation as a straight-talker during decades of service in high-level diplomatic positions with Foreign Affairs in Africa, the Middle East and Latin America. His bluntness even landed him in trouble in the mid-1990s, when he was forced to resign as ambassador to Mexico after accusing the country's government of widespread corruption. True to style, his report to Strahl is free of the bureaucratic obfuscation typical of Indian Affairs' officials, and thus offers a highly revealing profile of their mentality and mode of operation towards Barriere Lake.
Despite the report's variance with government pronouncements, the conclusions are not original but shaped and informed by extensive consultations with officials within Indian Affairs and the federal and provincial governments. Whether his report was actually followed by Indian Affairs or simply reinforced their existing plans, it is a vivid demonstration of the extreme and even illegal measures Indian Affairs is willing to consider to ensure that Indigenous communities do not strongly assert their rights.
Perron's recommendations to the Minister amount to a full arsenal of tactics of subversion: banish the possibility that the federal government will respect the landmark Trilateral agreement they withdrew from in 2001; fine-tune the government's comprehensive land claims policy used to extinguish native land rights, despite its violations of international and domestic law; sow internal divisions and foster opposition to the legitimate leadership within the community; cut off their professional consultation services; and strike a side deal with Quebec that ensures the provincial government doesn't implement their part of the Trilateral agreement.
Perron was unable to maintain the confidence of Barriere Lake during the alternative dispute resolution, mainly because he refused to give fair hearing to the community's concerns about the federal government's decision to renege on the Trilateral agreement. The 1991 pact, signed between Barriere Lake and Canada and Quebec, was intended to give the community a decision-making role in the management of their traditional territories and benefits from extensive resource extraction [1]. Perron stepped down soon after, but not before submitting a series of recommendations in a report exclusively to Minister Strahl on December 20, 2007. This document was only released to lawyers acting on behalf of the Elder's Council of Barriere Lake in the spring of 2009, under court-order.
Containing Barriere Lake's Defiance
In his report, Perron paints a picture of an irrational, suspicious and confrontational community, defaming their decades of peaceful political campaigning as "blackmail tactics used over the years to obtain concessions or funding from one government or another."
Framing his analysis, he describes Barriere Lake's approach to negotiations over rights to their traditional territories:
The former chief clearly indicated that the ABL [Algonquins of Barriere Lake] had no interest in comprehensive claims. They hoped to maintain Federal responsibility (and their obligations) and to obtain rights and co-management on the territory (including royalties)...
A question we could ask: why bother negotiating a land claims agreement when we can obtain benefits (at least partially) through a partial accord like a trilateral agreement? Other First Nations would be justified in questioning this matter. And it's the current overall comprehensive lands claims and self-government negotiations which could be questioned. [emphasis mine]
Indian Affairs, in their public pronouncements and media messaging, have always stuck to a set script: they pulled out of the Trilateral agreement because it cost too much money and had not produced tangible results. Perron reveals the real reason: Barriere Lake's success in forging a viable alternative to Comprehensive Lands Claims negotiations, offering a model for other First Nations to follow, could jeopardize the government's agenda.
Such open defiance of one of the pillars of Canadian government policy would be reason enough to warrant active subversion of the community. In negotiating the Trilateral agreement, Barriere Lake's precise intent was to avoid the Comprehensive Land Claims process, the Canadian government's modern-day land grab. It is an imposed, one-size-fits-all negotiating process for First Nations who have never signed away their title in historical treaties. A pre-condition for entering the process is that the First Nation surrender their rights to their traditional territories; they are then allowed to negotiate the terms of surrender, receiving small parcels of their land, some access to natural resources, and small monetary sums. Several bodies at the United Nations have regularly condemned this policy of "extinguishment," which violates international law and also illegally ignores rulings of the Supreme Court of Canada, such as the historic 1997 decision of Delgamuukw that recognized the existence of the Aboriginal title of First Nations. But the Canadian and provincial governments have poured billions into the process to secure agreements known as modern-day treaties, extinguishing Indigenous rights to traditional territories and securing legal "certainty" for government and corporate investment and economic development.
While the successful implementation of the Trilateral agreement wouldn't single-handedly upend the Comprehensive Claims process, Perron notes accurately that it could initiate a domino effect among other First Nations negotiating over their unsurrendered Title. The stakes are highest in British Columbia, where most lands are not covered by treaty. This passage reveals that Perron and Indian Affairs are keenly aware that if other First Nations believed it were possible to break the negotiating mould pressed on them, the cost for the federal and provincial governments - in political control and money - would be steep.
Knowing they couldn't change the Comprehensive Claims policy on their own, the Barriere Lake Algonquins negotiated a kind of interim (in Perron's words, "partial") agreement that would allow them to make gains in economic self-sufficiency and control over their lands while forestalling the government's drive for the extinguishment of their land rights. The Trilateral amounts to a consultation and accommodation plan that grants them a decision-making role over their traditional territories, requiring federal and provincial recognition of an area of resource co-management over 10,000 square kilometers and a share of the revenue from the extensive resource extraction on their lands. Hydro, forestry, recreational hunting and tourism take out $100 million annually, while the community has never received a cent. Complimentary agreements signed with the federal and provincial government would also entail expansion of their reserve, connection to the hydro-grid with a transition fund to help community members pay for the added hydro expenses (though the reserve sits on a reservoir that flooded their land decades ago, it is still off the hydro-grid), and infrastructure developments in the community, which lacks a high-school, community centre, and suffers massive housing shortages.
Quashing the "Mythical treaty"
But within the report's same page, Perron derides the belief that the Trilateral even amounts to an "agreement," denies the existence of the benefits he has just described, and recommends quashing the agreement in no uncertain terms:
This agreement does not constitute a treaty or an accord other than a partial financial agreement. INAC did well by withdrawing from this program which provided meager tangible results for the community...
I RECOMMEND that, under no circumstances, should INAC accept a re-involvement in the trilateral agreement but more importantly, that at no time should they agree to a specific reference, in a financial agreement, to this mythical "treaty" which essentially served to feed the illusions of the population and comfort its promoters in their ideology.
The leadership of the ABL and their councilors will continue to want to breathe life into this unbelievable illusion. It's their basic right. What I state here is that under no circumstances should INAC or any other Federal instances contribute to perpetuate this utopia.
The "illusions" of Barriere Lake's leadership, however, are in line with the conclusions reached by respected Quebec Superior Court Judge Rejean Paul, the only jurist to offer a legal opinion about the Trilateral in a political arena. Judge Paul mediated between the Quebec government, logging companies and Barriere Lake in 1992, when Quebec was allowing the companies to ignore their consultation obligations under the Trilateral agreement. In his mediation report, Judge Paul concluded that the Trilateral, if tested in court, might be accorded the status of a "treaty," and at the very least was a "solemn agreement" binding on the signatory parties. On top of that, when the Canadian government signed the agreement they recognized their "fiduciary obligations," the legally enforceable duty to act in the best interests of First Nations. Despite written pledges from a former Indian Affairs' Minister to continue the funding because of delays caused by the provincial and federal governments, Minister Robert Nault unilaterally pulled out of the agreement in 2001, leaving the government's fiduciary obligations to Barriere Lake unfulfilled. But the passion with which Perron dismisses the notion that the Trilateral agreement is a binding agreement may of course have more to do with political expediency than questions of legality. It is a striking admission of the government's desire to prevent the viability of any agreement that breaks free from their negotiating dictates, and allows a First Nation to regain some control over their traditional territory and benefits from their own wealth without extinguishing their land rights.
Instead of promoting respect for a binding agreement, Perron proposes re-jigging the Comprehensive Claims policy to secure the federal government's objective of extinguishment:
I RECOMMEND, in the long term, that INAC's policy on access to comprehensive land claims and self-government for the Algonquins be reviewed.
In the 80's, many Algonquin communities expressed their desire to be involved in a comprehensive claim. Three communities, Barriere Lake, Timiskaming and Wolf Lake opposed such a process....
Several Algonquin spokespersons have long since been ready to undertake negotiations and expressed much frustration for being kept out of the loop since a small group of ideologists and doctrinarians prefer confrontation to dialogue, theory to development.
It is time, it seems, for the department to relax its regulations and provide, for those communities who wish, the opportunity to get involved in a process that will allow them to attain, for some of them, their full potential. There already exists examples where these regulations have been adapted, specifically involving the Innu. We could hope that results and successes in other communities would inspire the same for the ABL.
Because Aboriginal title is held at the Nation rather than band level, Indian Affairs has preferred to negotiate comprehensive claims with entire Nations of native communities. But Barriere Lake's "small group of ideologists," holding fast to principles of basic justice and domestic and international law, are clearly an obstacle. They've prevented other Algonquin communities from reaching their "full potential" - that is, abandoning their rights. In situations like these, where the government has been unable to secure everyone's participation, just as in their negotiations with the Dene and Innu Nations, they've opted for the more selective approach advised by Perron. This allows them to pick off First Nations, community by community, securing the extinguishment of title by those means.
Carrots and Sticks: Undermining the Customary Council
Apart from retooling the Comprehensive Claims policy, Perron proposes short-changing the community with some investments in social programs and services and minor infrastructure development, as an alternative to fulfilling their obligations under the Trilateral agreement:
I RECOMMEND that we invest in the individual, in education and training programs for teens and adults, young mothers (caretakers), disease prevention, the fight against drugs and safety and assistance for the Elders. There are some excellent programs that are well targeted which must be expanded.
He also recommends the expansion of their reserve, connection to the Hydro-Grid (but without the transition assistance fund), and the construction of housing and a new school.
Having laid out an acceptable investment plan to Indian Affairs, Perron focuses his analysis on Barriere Lake's traditional leadership, which has maintained a strong negotiating position since signing the Trilateral agreement almost twenty years ago, refusing to accept anything less than its full implementation:
...my analysis of the past twenty years shows, without a doubt, that the community leadership is at the heart of the problems. I conclude that there is little or no possibility of remedying the situation unless there is a complete change in leadership. Such a change must come from within the community and not from governmental agencies or institutions.
With the necessity of a leadership change in mind, Perron lays out a plan to use the above investment projects as a ploy to undermine Barriere Lake's Chief and Council and their determined negotiating stance:
The worthwhile projects must be presented to the population so that they have the opportunity to appreciate them without the presence of the consultants who are like distorted mirrors and undermine the real development of the community. Of course, the projects cannot be carried out without the Band Council's approval but repeated refusals of reasonable projects could eventually bring about the necessary changes by the community itself. There is no other way. The changes must come from within the community. Certain individuals to whom I spoke to advised me to recommend guardianship or trusteeship of the community. I don't believe that this is possible and it would only perpetuate the condescension of the ABL who have already suffered enough from the ideology that contributes to their isolation and introversion. [emphasis Perron's]
Perron is advising that the government foster community opposition to the Council by extracting refusals for "reasonable projects" - that is, projects that fall well short of the signed undertakings and legal obligations of the federal government as part of the Trilateral agreement. Knowing the leadership will reject these projects, the government will be able to stoke community frustration with the lack of any development and thus build enough internal pressure to bring about "necessary changes" - a cowed Chief and Council willing to relent on the Trilateral's implementation, or a new leadership content to focus on minor community investments. Perron's idea about "guardianship" or "trusteeship" far exceeds the statutory powers of the federal government, but it offers a taste of the extreme and arbitrary powers he believes Indian Affairs is willing to exercise.
Indian Affairs seems to have acted on much of Perron's advice. In March 2008, Indian Affairs decided to oust Barriere Lake's Customary Chief and Council, recognizing individuals from a minority faction who claimed to follow the community's customary leadership selection process. As another secret government document revealed, Indian Affairs recognized that this scenario offered "improved collaboration of the new council with INAC," a "new council less dogmatized," and a "new environment more favourable to the development of the community" - language that clearly echoes Perron's analysis and prescriptions [2]. Since the ousting, the government-backed Chief's activities have practically matched the program of action advocated by Perron: a focus on increased government programs and services and housing repairs, while leaving the Trilateral agreement to flounder.
To further undermine the leadership, Perron recommends that the government "terminate the funding for consultation services and be firm and coherent in relationship with present leadership." Consultation services allow Barriere Lake's leadership to receive professional advice about government policies, and are offered by the Algonquin Nation Secretariat, a Tribal Council representing Barriere Lake along with Timiskaming and Wolf Lake. Simply cutting the funding for consultation services would have been blatantly illegal. But this objective was partially achieved by other means. In April 2008, the government-backed Chief pulled out of the Algonquin Nation Secretariat, which gave Indian Affairs the opportunity to drastically cut their funding, effectively rolling back consultation services.
This has occurred just as the six other Algonquin communities represented by the Algonquin Anishinabeg Nation Tribal Council (AANTC) are preparing to negotiate under the Comprehensive Land Claims process. At the same time, the Atikamekw Nation now want to discuss the territorial overlap they have with Barriere Lake with the two Algonquin Tribal Councils, though not with Barriere Lake, allowing Indian Affairs to bypass the community's legitimate leadership entirely.
Hand in Hand with the Province: Sabotaging the Agreements
Perron's recommended strategy for subverting Barriere Lake is completed by his suggestions for federal collaboration with the provincial government:
I also RECOMMEND that a high level consultation process between INAC and the Quebec Native Affairs be organized as soon as possible. To be discussed at the meeting would be not only the current situation in Rapid Lake, but a medium and long term strategy in regards to the ABL.
Indian Affairs seems again to have followed Perron's advice. As access-to-information requests revealed, Indian Affairs conducted a meeting with officials from Quebec Native Affairs (Secrétariat aux affaires autochtone) and the Quebec police (Surete du Quebec) in late February, 2008, though the subjects discussed remain unknown. When Barriere Lake community members refused to accept the legitimacy of the Indian Affairs-backed Chief after his recognition in early March 2008, and blockaded the reserve's access road to prevent his entry into the community, the provincial government sent riot squads and police officers to forcibly impose his authority on the reserve.
During the policing operation in Barriere Lake, Indian Affairs conducted daily conference calls with the Ministry of Public Security and Quebec Native Affairs. The provincial government was later willing to spend $200,000 to forcefully break up two peaceful blockades set up by community members on the highway outside their reserve in the fall of 2008, and to assign extra police officers to monitor Barriere Lake.
The provincial government's willingness to do the police work for the federal government can probably be explained by their unwillingness to implement their part of the Trilateral agreement and a complimentary Bilateral agreement they signed in 1998. But Perron's analysis indicates that the federal government feared Quebec's compliance, and had reason to actively deter it:
The Provincial government must soon respond to the recommendations (7) jointly presented in June 2006 by Mr. Ciaccia, special government representative and Mr. Lincoln, the representative for the ABL. Submitted in 2006, the government still has not responded on its content. A few recommendations pose serious problems to the Federal authorities:
· Concerns regarding the trilateral agreement
· Recognizing a main territory for the Algonquins
· Acknowledging overlapping with other communities
· Expansion of the reserve becomes a land base. [emphasis mine]
Since 2006, Quebec has stalled on implementing the recommendations issued by the above representatives - those of major concern being the recognition of co-management rights to 10,000 square kilometres and $1.5 million a year in resource-revenue sharing. Such requirements pose a threat to the federal government's ambition to complete comprehensive land claims agreements, as previously discussed. In addition, Quebec should be slated within the framework of the Trilateral agreement to oversee the community's connection to the hydro-grid, along with the creation of a transition fund, the expansion of the reserve, and housing construction - developments that would all require federal co-operation in their implementation, because of overlapping jurisdictions and responsibilities. Perron highlights Indian Affairs' fear that if Quebec discovered the political will to comply with the agreement, it might demand that the federal government cooperate in the implementation of their own side of the deal. Perron's next recommendations suggest a tactic to avert this possibility:
Other recommendations will require INAC's cooperation and support. In fact, housing programs already exist within INAC but must be carried out through future programs which, for the Federal's part, should not be part of the trilateral agreement or new MOMI. To avoid confusion, I RECOMMEND a high level consultation process to arrive at a mutually acceptable strategy and, if possible, establish a Federal-Provincial working group charged with the expansion of the reserve, bringing in electricity and building homes, according to the responsibilities of each government. It's only after this stage that the leadership and community should be consulted.[emphasis Perrons's]
Perron is advocating that the federal government initiate a high level consultation process with the province not to jointly implement the signed agreements, but to steer the province away from its obligations so as to "avoid confusion" - that is, to keep the federal government's hands clean of the Trilateral agreement. A "mutually acceptable strategy" would be based on reserve expansion and infrastructure investments explicitly outside the framework of the Trilateral agreement. Once it has succeeded in this regard, Perron recommends the governments deign to consult with the community, casting contempt on the idea that Barriere Lake is an equal partner in an agreement with the two levels of government.
It is unclear whether such a secret high-level consultation process was actually initiated after Perron issued his recommendations, but the federal and provincial government's actions over the last two years certainly seem to confirm as much. Quebec has continued to refuse to implement the Trilateral and Bilateral agreement, and has intimately cooperated with Indian Affairs in criminalizing community members in a transparent attempt to cripple their ability to assert pressure on the governments.
No matter to what degree Perron's recommendations were actually formally adopted by the federal government, his report is a chilling indication of the lengths to which Indian Affairs will go to crush a native community fighting for their basic rights.
Notes
[1] Perron received his mandate to enter into discussions with Barriere Lake after community members caused the government some embarrassment by camping out in large numbers on Parliament Hill in the summer of 2007, the day before the National Aboriginal Day of Action and a few days before Canada Day celebrations. At the time, Barriere Lake had launched a legal challenge of Indian Affairs' 2006 decision to strip the community of control over their financial affairs, handing them over to an outside consultant who had ignored the community's input and mismanaged their funds. This third-party management system had been imposed on the community on the basis of a deficit that Barriere Lake's lawyers argued would be non-existent if the federal government had simply honoured and implemented a series of agreements signed over the last two decades.
The Deputy Minister of Indian Affairs Michael Wernick met with community representatives outside the parliament, agreeing to suspend the court case and enter into a process with a special ministerial representative, who would issue recommendations for government action.
From the start of discussions, however, it was clear Marc Perron intended to serve the government's agenda. Then the community discovered that Perron was also negotiating a Comprehensive Claim with the Attikamek Nation in northern Quebec, on behalf of the federal government. This raised obvious concerns about conflict-of-interest: the Attikamek have claimed territory that overlaps with Barriere Lake's documented areas of historical land-use, and Barriere Lake has always refused to enter the process that Perron was negotiating under with the Attikamek.
[2] Martin Lukacs, "Minister's Memo Exposes Motives for Removing Algonquin Chief," Dominion Paper, March 27, 2009 http://www.dominionpaper.ca/articles/2560
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