Forging New Relationships:
Aboriginal Governance in Canada
Standing Senate Committee Aboriginal Peoples
Chairperson :The Honourable Charlie Watt
Deputy Chairperson : The Honourable Janis Johnson
February 2000
THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
The Honourable Charlie Watt, Chair
The Honourable Janis Johnson, Deputy Chair
and
The Honourable Senators
Raynell Andreychuk
Jack Austin
* Bernard Boudreau, P.C. (or Daniel Hays)
Thelma Chalifoux
Ione Christensen
Mabel M. DeWare
Aurélien Gill
* John Lynch-Staunton (or Noël Kinsella)
Landon Pearson
Nick G. Sibbeston
Gerry St. Germain
* Ex Officio Members
The Honourable Senators Willie Adams, Gerald Beaudoin, Eric Berntson, Gerald J. Comeau, Rose-Marie Losier-Cool, Frank Mahovlich, Brenda Robertson and David Tkachuk also served on the Committee at various stages.
Jill Anne Joseph
Clerk of the Committee
ORDER OF REFERENCE
Extract from the Senate Journals, Thursday, December 16, 1999:
The Honourable Senator Pearson for the Honourable Senator Watt moved, seconded by the Honourable Senator Mahovlich:
That, notwithstanding the Order of the Senate adopted on Wednesday, November 24, 1999, the Standing Senate Committee on Aboriginal Peoples be authorized to examine and report on the recommendations of the Royal Commission Report on Aboriginal Peoples (Sessional Paper 2/35-508.) respecting Aboriginal governance and, in particular, seek the comments of Aboriginal Peoples and of other interested parties on:
- the new structural relationships required between Aboriginal Peoples and the federal, provincial and municipal levels of government and between the various Aboriginal communities themselves;
- the mechanisms of implementing such new structural relationships; and
- the models of Aboriginal self-government required to respond to the needs of Aboriginal Peoples and to complement these new structural relationships;
That the Committee be empowered to submit its final report no later than February 16, 2000, and that the Committee retain all powers necessary to publicize the findings of the Committee contained in the final report until February 29, 2000, and
That the Committee be permitted, notwithstanding usual practices, to deposit its report with the Clerk of the Senate, if the Senate is not then sitting; and that the report be deemed to have been tabled in the Chamber.
The question being put on the motion, it was adopted.
Extract from the Senate Journals, Wednesday, November 24, 1999:
The Honourable Senator Watt moved, seconded by the Honourable Senator Mercier:
That the Standing Senate Committee on Aboriginal Peoples be authorized to examine and report on the recommendations of the Royal Commission Report on Aboriginal Peoples (Sessional Paper No. 2/35-508) respecting Aboriginal governance and, in particular, seek the comments of Aboriginal peoples and of other interested parties on:
- the new structural relationships required between Aboriginal Peoples and the federal, provincial and municipal levels of government and between the various Aboriginal communities themselves;
- the mechanisms of implementing such new structural relationships; and
- the models of Aboriginal self-government required to respond to the needs of Aboriginal Peoples and to complement these new structural relationships;
That the papers and evidence received and taken on the subject and the work accomplished by the Standing Senate Committee on Aboriginal Peoples during the first session of the Thirty-sixth Parliament be referred to the Committee;
That the Committee submit its final report no later than December 16, 1999, and that the Committee retain all powers necessary to publicize the findings of the Committee contained in the final report until December 24, 1999; and
That the Committee be permitted, notwithstanding usual practices, to deposit its report with the Clerk of the Senate, if the Senate is not then sitting; and that the report be deemed to have been tabled in the Chamber.
The question being put on the motion, it was adopted.
Extract from the Journals of the Senate of Tuesday December 9, 1997:
That the Standing Senate Committee on Aboriginal Peoples be authorized to examine and report upon the recommendations of the Royal Commission Report on Aboriginal Peoples (Sessional paper 2/35-508.) respecting Aboriginal governance and, in particular, seek the comments of Aboriginal peoples and of other interested parties on:
- the new structural relationships required between Aboriginal peoples and the federal, provincial and municipal levels of government and between the various Aboriginal communities themselves;
- the mechanisms of implementing such new structural relationships and;
- the models of Aboriginal self-government required to respond to the needs of Aboriginal peoples and to complement these new structural relationships; and
That the Committee present its report no later than November 30, 1999.
The question being put on the motion, it was adopted.
Paul C. Bélisle
Clerk of the Senate
INTRODUCTION:
The Committee's Mandate for this Study and Organization of the Committee's Work
PART ONE:
ESTABLISHING THE FOUNDATION FOR NEW RELATIONSHIPS
1. Issues Identified in Evidence Received by the Committee
2. The Committee’s Conclusions and Recommendations
3. Implications of Our Recommendations
PART TWO:
ISSUES RELATED TO ABORIGINAL SELF-GOVERNMENT
1. Approaches to Aboriginal Governance
2. Financing Aboriginal Governments
3. Capacity Building for Aboriginal Governance
4. Aboriginal Women and Self-Government
5. Aboriginal Youth and Self-Government
In 1997, the Standing Senate Committee on Aboriginal Peoples, with the approval of the Senate, began a study of Aboriginal governance issues. In particular, the Committee wished to focus on the recommendations relating to Aboriginal governance contained in the 1996 Report of the Royal Commission on Aboriginal Peoples.
Aboriginal governance involves complex and difficult issues. There are many opinions on what Aboriginal self-government means and how it can best be implemented. The challenge at times seems overwhelming. The Committee views this study as one process through which the debate of self-government can be further developed. We hope our work will serve as a step toward advancing a relationship of mutual respect and coexistence between Aboriginal peoples and non-Aboriginal peoples in Canada.
As we proceeded with the study, the urgent need for new structures to deal with the negotiation and implementation of relationships stood out. As a result, the Committee decided to concentrate on structural matters and provide constructive recommendations to assist in the negotiation and implementation of treaties and agreements.
We note that this is not the first time a parliamentary committee has examined these issues. The 1983 report of the House of Commons Special Committee on Indian Self-Government, popularly known as the Penner Report, made a number of recommendations for the recognition and implementation of First Nations self-government. While there have been many important developments since then, we are nonetheless compelled, over 15 years later, to make several recommendations that echo those contained in the Penner Report. We are very disturbed by the lack of political initiative and will to pursue the implementation of such recommendations.
On behalf of all Committee members, I wish to thank those who have come forward to share their views and vision with us through presentations and briefs. All contributors have been passionate, and are committed to finding solutions and living in peaceful co-existence in Canada.
I also wish to express the Committee's appreciation to leaders of Aboriginal organizations, traditional and hereditary leaders, and Clan Mothers and Elders who generously provided their time and input. A special thanks to those who made long journeys to Ottawa for meetings.
Finally, I wish to express my gratitude to all Committee members for their hard work, commitment and dedication during the many long hours spent in hearings and deliberations. I would also like to thank members of the Subcommittee on Agenda and Procedure who undertook to join me in this complex and challenging assignment.
Senator Charlie Watt
Chairperson
Standing Senate Committee on Aboriginal Peoples
The Committee's Mandate for this Study and Organization of the Committee's Work
In November 1996, the Royal Commission on Aboriginal Peoples (RCAP) released its five-volume final report. Many of the Commission's recommendations focused on Aboriginal governance and relations between Aboriginal and other governments in Canada. In January 1998, the federal government tabled Gathering Strength, its response to the RCAP report. As part of this response, the Government of Canada made a commitment to restructure its relationships with Aboriginal peoples and governments.
In the wake of these developments, the Standing Senate Committee on Aboriginal Peoples, with the approval of the Senate, decided to undertake this study to follow-up on several key issues highlighted in the RCAP report. The Committee is aware that restructuring relationships is both a complex and an urgent challenge. We hope that our study can serve as a process to advance the debate on the implementation of new and renewed relationships. Our objective was, and is, to provide an opportunity for public discussion, and to make recommendations to assist the federal government, Aboriginal organizations and Aboriginal communities in implementing their relationships, particularly with regard to processes for self-government. We also hope to assist Aboriginal communities as they design governments and develop their own governance capacity.
The Committee invited members of Aboriginal communities and organizations throughout Canada and other potential interested parties to participate in our work. We asked witnesses to comment on four broad matters:
- New structural relationships required between Aboriginal peoples, their governments and other governments in Canada;
- Principles for and approaches to Aboriginal self-government;
- Implementing Aboriginal self-government; and
- Strategies for financing and supporting Aboriginal governments and institutions so they are effective, affordable and meet the needs of Aboriginal peoples.
The Committee held a series of public hearings between November 1998 and June 1999, during which over 100 witnesses appeared. We also received many written submissions. Through these hearings and submissions, the Committee obtained input from a wide cross-section of Aboriginal and non-Aboriginal individuals, communities and institutions.
Parallel to our hearings the Committee invited the leadership of national Aboriginal organizations, elders and traditional leaders to engage directly in the study by participating in a Round Table with Committee members. The Round Table process was the first time a Senate committee has invited non-Senators to participate directly in deliberations on key issues with the Senators of the Committee. We see this process in itself as an example of building partnerships with Aboriginal peoples in Canada.
In the course of our study, witnesses addressed a wide range of complex issues related to Aboriginal governance. As the hearings proceeded, the Committee gained an appreciation of the scope and complexity of these matters.
Part One of this report addresses matters about which the Committee wishes to make recommendations at this time. We focus primarily on structures and mechanisms for negotiating and implementing treaties and agreements. Many witnesses sent a strong message to Committee members that existing institutions and processes are inadequate. Their testimony highlighted the need for legislative and institutional reforms. We address these issues in Part One and make a series of recommendations for practical and concrete measures to assist parties in implementing their relationships.
In Part Two, we turn our attention to other issues related to Aboriginal self-government that we learned about during our evidence gathering. The purpose of this part is to summarize what we heard. Part Two highlights several issues, problems and proposals, including models or approaches to Aboriginal governance. At this point in our work, the Committee has not sufficiently inquired into these issues to offer specific recommendations.
ESTABLISHING THE FOUNDATION FOR NEW RELATIONSHIPS
In this part of our report, the Committee focuses on structural barriers to the formation and conduct of relationships with Aboriginal peoples. This phase of our work leads us to make recommendations for reform. These reforms are oriented towards establishing a firm foundation for the negotiation and implementation of treaties and agreements(1) in a manner which is timely, inclusive of all Aboriginal peoples and consonant with the current state of Canadian law concerning Aboriginal and treaty rights. We believe, if acted upon, governments and Aboriginal peoples will be better served as they work to forge new relationships of partnership and coexistence.
We anticipate that many of our recommendations can be implemented without the commitment of significant additional financial resources by Canada. However, they will require, in some cases, the reallocation of existing resources. Over the longer term, we anticipate savings as agreements are completed in a more timely and consistent fashion, as the legal obligations of the Crown are properly discharged, as the Government of Canada’s administrative structures are reoriented towards supporting political relationships based on partnership rather than dependency, and as Aboriginal and government parties rely less on the courts as a primary forum for resolving disputes.
1. Issues Identified in Evidence Received by the Committee
Throughout our hearings and in written briefs submitted to the Committee, witnesses identified several structural and institutional barriers that hinder the negotiation and implementation of treaties and agreements. Testimony and briefs received by the Committee exposed several common themes concerning key impediments.
First, witnesses drew our attention to the fact that while Section 35 of the Constitution Act, 1982 identifies the Indian, Inuit and Metis peoples as the Aboriginal peoples of Canada, in practice, they do not enjoy equal access to opportunities to negotiate and implement Aboriginal self-governance and relationships with Canada.
Second, witnesses spoke to us of the incompatibility between stated objectives of the government for relationships of partnership with Aboriginal peoples, and the allocation of responsibilities for their negotiation within the administrative structure of the Department of Indian Affairs and Northern Development. They also noted that, once concluded, there is a failure to implement treaties and agreements in a timely fashion, and to ensure that the legal obligations of the Crown arising from them are properly discharged.
Third, evidence we received indicates problems arising from the lack of political will to negotiate and implement treaties and agreements in a manner that is consistent with the government’s own statements, policies and other political commitments, and in accordance with important precedents in Canadian law concerning Aboriginal and treaty rights. Aboriginal witnesses spoke of the need for independent structures outside the regular courts that can address the grievances of Aboriginal peoples, and supervise the negotiation and implementation of relationships between Aboriginal peoples and Canada.
Finally, we heard concerns about the lack of capacity within the Canadian judicial system to adjudicate Aboriginal and treaty rights cases and to deliver consistent, timely and enforceable decisions that compel fulfilment of the Crown’s legal obligations.
These themes and the testimony we heard around them are presented in sections of this report that follow.
1.1 Accessing Opportunities to Negotiate and Implement Aboriginal Self-Government
A significant issue raised by Committee witnesses pertains to the access of all Aboriginal peoples to opportunities to negotiate and exercise Aboriginal self-government. Several aspects of this issue came through clearly in our hearings. These concern the federal government’s jurisdictional responsibility for Aboriginal peoples, the identification of entities or bodies capable of exercising self-government and representing Aboriginal peoples in negotiations, and practical application of the concept of nationhood.
A longstanding issue repeated in our hearings is the federal government’s policy on the scope of its constitutional and jurisdictional responsibility for Aboriginal peoples. Under section 91(24) of the Constitution Act, 1867, the federal government has jurisdiction over "Indians and lands reserved for the Indians." While the federal government takes primary responsibility for status Indians on reserve and for Inuit, it has generally denied any special responsibility for Metis and non-status and off-reserve Indians. We were told that the failure of the federal government to assume responsibility for off-reserve Aboriginal peoples denies many of them access to self-government development and negotiation processes and is a significant barrier to implementing the inherent right of self-government and innovative models of self-government.
Ken Noskey, President of the Metis Settlements General Council, pointed out inconsistencies between the federal government’s policy recognizing the inherent right of self-government for all Aboriginal peoples, and its failure to provide the resources needed to support negotiations with a significant portion of the Aboriginal peoples of Canada:
The federal government has taken on responsibility for the Indians and the Inuit, but we Metis are in no man's land. They say we are recognized as an Aboriginal people but there are no resources or programs specific to the Metis as there are for the First Nations. (Issue No. 13, November 18, 1998, p. 11.)
The Native Council of Prince Edward Island raised similar concerns in the context of their ongoing efforts to realize self-government:
The Minister of Indian Affairs denies any responsibility for Indians who do not live on a reserve. We contend that this is an unconstitutional policy, but it saves money, and allows the government of Canada to foist part of its responsibility off to the provinces. It also serves to postpone indefinitely any progress on self-government discussions. In summary, it is not the framework nor the process that is to blame for 12 years of no progress, but the de facto policy of the government which is to not really endorse self-government.(2)
Marc Maracle of the National Association of Friendship Centres told us "the federal government has an absolute responsibility to ensure that when they are putting together these [negotiation] forums that affect Aboriginal people, that they bring the right stakeholders to the table." (Issue No. 23, March 17, 1999, p. 49.)
Representatives of the Inuit of Nunavik expressed concern that the federal government is denying primary responsibility for negotiating and implementing self-government arrangements with Inuit in the province of Quebec. Other Aboriginal groups that appeared before us echoed these sentiments.(3)
The concepts of nationhood, representation and membership lie at the core of questions about "who" or "what entity" possesses the inherent right of self-government and is capable of expressing it through the empowerment of Aboriginal governments. In its final report, RCAP concluded that Aboriginal "nations" are the entities that can exercise the right of self-government under section 35 of the Constitution Act, 1982. According to RCAP, an Aboriginal nation has the following attributes:
The nation has a collective sense of national identity that is evinced in a common history, language, culture, traditions, political consciousness, laws, governmental structures, spirituality, ancestry and homeland;
It is of sufficient size and capacity to enable it to assume and exercise powers and responsibilities flowing from the right of self-determination in an effective manner; and
It constitutes a majority of the permanent population of a certain territory or collection of territories and, in the future, will operate from a defined territorial base.(4)
RCAP argued that since only the nation can exercise the inherent right of self-government, negotiations to implement the inherent right cannot bypass the nation and proceed on a community-by-community basis. Although it is possible for a local Aboriginal community to obtain delegated powers, RCAP concluded that the inherent jurisdiction of Aboriginal peoples can be exercised only through initiatives and treaties established at the level of the nation.
In our hearings, some witnesses suggested that the conclusions reached by RCAP may be unrealistic as well as inconsistent with historical Aboriginal laws and protocols dealing with the political autonomy of bands and tribes. The Indigenous Bar Association (IBA) pointed out the importance of looking to the historical evidence and practices of the particular Aboriginal people in question to determine where the right of self-government of that people resides. David Nahwegahbow explained:
Different Indigenous nations have different laws, customs and practices on this matter. For example, for many Indians in British Columbia, sovereignty resides at the nation level primarily. Accordingly, the Committee will notice that when Indians in British Columbia use the term "First Nation", they generally tend it to mean the nation level rather than the band level. In parts of Canada east of British Columbia, on the other hand, for example, in the case of the Anishnabek, the term "First Nation" is commonly used to refer to bands or communities. This is based on differences in the cultures and customary laws and practices of Anishnabek peoples. The Anishnabek considered the local band or tribe as the level of social organization where residual aspects of sovereignty reside, except for those areas specifically allocated to the nation level. (Issue No. 21, March 2, 1999, p.7)
The IBA also observed that many of the numbered and other treaties were signed by chiefs and headmen of bands, rather than centralized nations, indicating that a significant degree of political autonomy resided at the band level. The IBA suggested that the Committee examine emerging international standards in this regard.
This question was also addressed by witnesses commenting on urban Aboriginal governance. The National Association of Friendship Centres and the Law Commission of Canada (NAFC-LCC) stated that there is "no logical reason to assume that an urban Aboriginal community, even one comprised of diverse origins, could not assert a right of governance over core matters of Aboriginal integrity."(5) They questioned whether the abstract idea of "nation" may defeat the purpose of addressing the real needs of Aboriginal peoples as they interrelate and wish to govern themselves. They also raised questions about the capacity of Aboriginal peoples to reconstitute traditional Aboriginal nations in order to implement a nation-based approach, and highlighted the difficulties of reforming existing associations along nation-specific lines. (Issue No. 23, March 17, 1999.)
The NAFC-LCC brief suggested that a new focus on the notion of community may prove useful in grappling with urban governance:
An Aboriginal community may well be based on nationality, but it may equally be rooted in place or in association with critical cultural and social functions, such as education. There would appear to be little to gain by attempting to rank such associations in an overly rigid or coded hierarchy. Whether in urban, rural or remote settings, Aboriginal people are living communally. Whether as part of long-established or emerging social formations, these communities have their own norms, practices and traditions of decision-making.(6)
Closely related to issues of representation are those of membership. Membership is a critical aspect of self-government. A group’s membership rules determine who is represented in negotiations, who participates in essential governance functions, such as empowering and holding Aboriginal governments accountable, who is entitled to access programs and services and is subject to Aboriginal government laws and other authorities.
We heard many views on the lack of inclusiveness of Aboriginal self-government initiatives, and inequities both within and between groups of Aboriginal peoples. We also heard about the continuing difficulties off-reserve members face in accessing services from bands. A number of groups called for more inclusive approaches to membership, emphasizing that all members of a First Nation must be allowed to participate in important matters that affect the First Nation as a whole. We note that the recent decision of the Supreme Court of Canada in Corbiere v. Canada is consistent with these views, holding that off-reserve members cannot be completely excluded from voting in Band elections.
A related issue which the Committee received evidence on concerns the role of Aboriginal service agencies, particularly in the off-reserve context. Some witnesses suggested that funding should go to the political representative body of Aboriginal people in a given area rather than a specialized Aboriginal service agency. They suggested that it is more consistent with the principle of Aboriginal governance and autonomy to direct funds through Aboriginal political bodies, which would then have the responsibility to develop and provide programs according to the needs of their constituency.
1.2 Administrative Responsibility for Negotiating and Implementing Relationships
A predominant theme addressed by witnesses concerns the role that the Department of Indian Affairs and Northern Development (DIAND) plays in negotiating and implementing treaties and agreements. The department has a mandate to implement the Indian Act and associated policies, programs and services. It also has lead responsibility, on behalf of the Government of Canada, for negotiating and implementing treaties and related agreements with First Nations and Inuit peoples. DIAND discharges the Crown’s obligations arising from these agreements as well as from its fiduciary responsibilities in respect of Aboriginal peoples. In parallel, the Federal Interlocutor for Non-Status Indians and Metis has responsibility for conducting relationships with these Aboriginal peoples. (7)
For many reasons, DIAND is not viewed as an appropriate institution through which relationships based on trust and partnership between Aboriginal peoples and Canada can be pursued. Aboriginal witnesses expressed their frustration negotiating self-government and treaty relationships with a department structured to implement the Indian Act regime. Many witnesses suggested moving negotiation responsibilities out of DIAND.
We, as Aboriginal Peoples, are caught in a bind. We must negotiate our freedom by using the resources of the groups we are negotiating with. This is a no-win situation. We cannot use the Indian Act and its structures to negotiate our way out of the Indian Act.(8)
Other witnesses noted the failure of DIAND to properly implement treaties, self-government and other agreements, once these are concluded, and the inclination of departmental officials to approach implementation as a discretionary policy matter. This is perceived as compromising the ability of the Government of Canada to meet its legal obligations, and ultimately, to uphold the honour of the Crown in its relationships with Aboriginal Peoples. The Cree Naskapi Commission has commented on these issues in the following terms:
Indian Affairs ... see the implementation of treaty provisions as an aspect of Indian Affairs policy. As a policy, it can, of course, vary according to budgetary and other considerations. So the act of implementing treaty provisions is seen as essentially similar to other policy-making, priority-setting and program-management functions of the government ... The problem is that governments have consistently failed to understand that treaty obligations are enforceable, that there are rules for interpreting them and they cannot be juggled with competing "policy options".(9)
In his 1998 report to Parliament, the Auditor General also noted serious weaknesses in the Department of Indian Affairs and Northern Development’s implementation of comprehensive land claim agreements. The Auditor General implied that more needs to be done to incorporate implementation plans within the legal framework of agreements. (10)
To address these problems of implementation, the Cree Naskapi Commission recommended to the Committee that a treaty implementation secretariat, independent of DIAND, be created to manage fulfilment of the Government of Canada’s obligations under treaties and agreements. (11)
We need an implementation secretariat ... [created from] the existing person-years of the Department of Indian Affairs and set up away from the departmental structure. Its task would be, after agreements have been negotiated and treaties have been signed, to implement them. It should be completely separate from the policy-making, expenditure-prioritizing and decision-making body. It should be an implementing body. (Richard Saunders, Issue No. 11, November 3, 1998, p. 14.)
Concerns about DIAND’s role in negotiating and implementing treaties, agreements and relationships with Aboriginal peoples have been expressed by previous inquiries. Reporting in 1983, the House of Commons Special Committee on Indian Self-Government noted that:
The past history of the federal-Indian relationship has left a legacy of distrust and suspicion that would seriously impair the capacity of the Department of Indian Affairs and Northern Development to act as the federal instrument for developing a new relationship. (12)
In its report, the Royal Commission on Aboriginal Peoples concluded DIAND could not contribute to the development of a sound foundation within the Government of Canada for the new relationships envisioned. (13)
1.3. The Absence of a Legal Framework to Guide Negotiations and Implementation
Many witnesses spoke of the lack of political will shown by the Government of Canada to engage in serious negotiations, and to give practical expression to symbolic commitments made, for example, in the Inherent Right Policy and Gathering Strength. Throughout our hearings, the Committee learned of some of the problems arising from the absence of a statutory framework that gives legislative expression to the government’s policy on the negotiation and implementation of relationships with Aboriginal peoples and to its commitment to recognize and implement the inherent right of self-government. There is no legislation providing consistent, strategic guidance to public officials charged with responsibility for negotiating and implementing treaties and agreements, and no cohesive and predictable framework upon which Aboriginal peoples might base expectations about Crown action. The Indigenous Bar Association commented on this issue when it appeared before the Committee.
First of all, it [the inherent right policy] is only a policy. It is open to interpretation; can be easily changed and is not binding in law ... Secondly, although the federal inherent [right] policy is stated to recognize the inherent right of self-government, the experience at the negotiating table is that this recognition is limited and meaningless ... Aboriginal peoples are told to "go to court" if they want specific recognition that they possess an Aboriginal right to self-government. (14)
Evidence received by the Committee suggests a high degree of frustration among Aboriginal peoples with inconsistent application of the Government of Canada’s own policies concerning relationships with Aboriginal peoples and the inherent right of self-government. The Inuvialuit Regional Corporation and Gwich'in Tribal Council stated that the current negotiation process is plagued by a lack of internal government policy and process cohesion.(15) The Akaitcho Tribal Council spoke of the problems that an inconsistently applied policy framework, coupled with the absence of sufficient political will, pose for the achievement of Aboriginal self-government.
In implementing self-government or governance models in this country, the biggest hang-up with the models is not the actual development of models, because indigenous peoples have been quite creative in trying to find ways to solve these issues. The difficulty arises in how you implement those models. All the good words do not get the implementation process in place. That is where we are hung up right now, namely, trying to implement something. We have something developed, we have had it developed for some time, it has been here for almost 100 years, but we cannot make it work because there seems to be a lack of political will to make it happen ... Every time we try to move forward, we come up [against] a policy that has been determined somewhere else where we were not involved in the discussion. We keep running into this. (Sharon Venne, Issue No. 17, February 2, 1999, p. 2.)
Repeatedly, our witnesses drew attention to the fact that, in spite of important developments in the law of Aboriginal and treaty rights, and the resolution of many fundamental principles, government legislation, policy and administrative action has not kept pace with contemporary jurisprudence. The courts have already addressed many critical issues and constitutional concepts of Aboriginal and treaty rights pertaining, for example, to Aboriginal title, the nature and status of treaties, rules for treaty interpretation, the status of oral evidence, and the fiduciary role of the Crown. Regrettably, our witnesses provided evidence that a broad understanding and appreciation of this evolving area of Canadian law eludes government leaders, legislators and the many public officials charged with responsibility for negotiating and implementing the Crown’s relationships with Aboriginal peoples. One outcome is that Aboriginal peoples and governments persist with litigation as a primary means for resolving disputes between them, even as the courts continue to encourage the parties to engage in constructive political negotiations. The Mamuitun Tribal Council’s submission commented on this state of affairs in the following terms:
...[T]his lack of political leadership must be compensated for somewhere and that is why we must often rely on the judgements of the Supreme Court to bring the governments to task as far as this is possible. There is accordingly a vacuum in political terms that has to be filled by the law. (16)
1.4 Access to Independent, Supervisory Institutions
The Committee heard from Aboriginal witnesses about the need for an independent and empowered body to assume a variety of functions in respect of facilitating treaty, self-government and other negotiations, supervising Aboriginal-government relationships and safeguarding Aboriginal and treaty rights. In some instances, Aboriginal people spoke of their support for recommendations made in this regard by previous inquiries, including RCAP.
In our brief, we talk about the recommendation that the Royal Commission on Aboriginal Peoples made for the creation of an independent authority to monitor relations and negotiations between Aboriginal peoples and the federal and provincial governments ... We agree that an independent party is an absolute necessity upon which to advance positive relationships. (Vera Pawis-Tabobondung, Ontario Indian Friendship Centres, Issue No. 23, March 17, 1999, p. 30)
The Indigenous Bar Association recommended an Attorney General-type office, specifically dedicated to protecting and upholding Aboriginal and treaty rights guaranteed in Section 35 of the Constitution Act, 1982.(17) Others, such as Grand Chief Perry Bellegarde of the Federation of Saskatchewan Indian Nations spoke favourably of the idea of a Treaty Commissioner appointed by Parliament, acting independently and at arms-length from government (Issue No. 28, May 5, 1999, Chief Perry Bellegarde). Dr. Mark Dockstator of Trent University noted the "importance and relevance of developing some kind of mechanism that interfaces between Aboriginal people and the mainstream of Canadian society when dealing with self-government issues" (Issue No. 25, April 13, 1999, p. 36).
Several structures with functions and responsibilities similar to those identified by our witnesses have already been established pursuant to federal legislation. These pertain to regionally based treaty processes, comprehensive and specific claims, and self-government agreements. They include the B.C. Treaty Commission, the Office of the Treaty Commissioner in Saskatchewan, the Indian Claims Commission, the Indian Commission of Ontario, and the Cree Naskapi Commission.
Each of these bodies has a unique purpose. Common to them, however, is a relatively contained mandate focused on facilitating a negotiation or implementation process, or monitoring and reporting on implementation activities pursuant to specific agreements. Although these institutions generally are held in high regard by Aboriginal peoples, they are not perceived to be adequately equipped to ensure that Aboriginal peoples’ grievances are properly addressed and appropriate remedies made available to them. Put simply, these bodies lack the "teeth" to make them effective overseers of Aboriginal-government relationships. Their independence is perceived as significantly weakened by the fact that most receive funding from DIAND and direct their reports to the Minister of Indian Affairs and Northern Development.
1.5 Judicial Capacity
Disputes between Aboriginal peoples and governments have been common to their relationships since the earliest days of contact. The main forum for the resolution of these disputes has been the Canadian judicial system, which applies common and civil law. Aboriginal witnesses appearing before the Committee were critical of the Canadian judicial system -- in particular, its failure to demonstrate a receptiveness to, and cognizance of, Aboriginal perspectives on the substantive content of Aboriginal and treaty rights as well as processes for achieving justice, in cases where such rights are asserted.
Other witnesses suggested that Canadian courts may not have adequate capacity and expertise to adjudicate the unique issues that are raised in Aboriginal and treaty rights cases, or be sufficiently engaged with the emerging body of Canadian Aboriginal law so to apply it in a consistent, predictable manner. This is attributed in part to the newness of Aboriginal case law, as well as the fact many justices have received limited or no training in it. Evidence is found in the Supreme Court of Canada’s reversal of many lower and appellate court decisions pertaining to Aboriginal peoples and their rights.
If one looks at what has happened in such cases as Badger and Sioui and Sparrow, and the other two dozen major Aboriginal and treaty rights cases, one finds that generally the initial court decision went against the aboriginal party. Then there were appeals and counter-appeals. The decisions went back and forth all the way to the Supreme Court.
Very often even the appeals courts got it wrong. That is unusual in Canadian jurisprudence. Generally speaking, appeal courts, if they are unanimous, are found to be right and their decisions are upheld by the Supreme Court. In aboriginal issues, though, that trend is not usually there. That is because a new body of law is being developed (Richard Saunders, Cree Naskapi Commission, Issue No. 11, November 3, 1998, p. 15.)
Without a consistently applied body of law, there are few deterrents to Aboriginal and government parties continuing to choose litigation as a means of resolving their disputes, rather than the more preferable forum of political negotiation.
Concerns have also been raised about the suitability of mainstream Canadian courts to adjudicate disputes arising from new political relationships. If Aboriginal peoples are to be equal partners in Canadian society, then the forum that resolves disputes between Aboriginal people and Canadian society should reflect this partnership. Witnesses told us that the idea of an equal partnership, sharing responsibilities over the administration of justice is not new. It has roots in the original compacts between Aboriginal people and the Canadian government. For example, most of the numbered treaties include express provisions recognizing this partnership. Judge Linton Smith told the Committee:
[T]he government of Canada and the founders of today's Indian nations agreed that our two peoples would work together to keep the peace and maintain justice in the whole tract of land ceded to Canada in the treaties. I believe we are bound by our forefathers' commitment to each other to establish justice programs based on broad co-operation, consultation and partnership.(18)
In the past, Aboriginal peoples and organizations, as well as many inquiries that have examined the administration of justice in respect of Aboriginal peoples, have advocated either the establishment of separate and parallel Aboriginal justice systems and courts, or the establishment of specialized, administrative tribunals within the mainstream Canadian judicial system. Recommendations have also been made for increased training for judges, court officials and lawyers to enhance their understanding of developments in Aboriginal and treaty law, and to better equip them to respond to Aboriginal perspectives and cultures in judicial proceedings.
2. The Committee’s Conclusions and Recommendations
In this part of our report, the Committee focuses on measures we believe are required to overcome the structural and institutional barriers that stand in the way of successful negotiation and implementation of treaties and agreements.
2.1 Accessing the Right of Self-Government
Aboriginal witnesses spoke to us in compelling terms about the unnatural divisions that exist within their communities -- divisions based on gender, imposed legal distinctions and other factors. Witnesses noted that these divisions have in some instances been created by self-government processes themselves, in particular, by how these are structured and funded. The Committee understands that these divisions and the disputes they precipitate have many origins. These origins include not only the Indian Act but also past and present policies of the federal government concerning the scope of its jurisdictional responsibilities under Section 91(24) of the Constitution Act, 1867 and self-government negotiation and implementation processes.
The Committee is concerned that unresolved jurisdictional issues seriously hinder the full realization of self-government for many Aboriginal peoples. The Committee believes that, as a result, many Aboriginal peoples are denied the opportunity to access Aboriginal self-government processes that can address their particular circumstances, aspirations and interests. Further, by limiting the opportunities that are available to some groups of Aboriginal peoples, the Government of Canada may not be acting in a manner that respects Section 35 of the Constitution Act, 1982 and its own policy on the inherent right of self-government.
Issues of nationhood, representation and membership are central to Aboriginal self-government, and are of mutual concern to Aboriginal peoples and governments. For Aboriginal peoples, these issues have a significant bearing on how they organize for the purposes of pursuing self-government initiatives. For the federal government too, these issues are relevant to organizational strategies and to federal policies on self-government. In particular, they have implications for identifying the Aboriginal parties with whom the federal government should engage for the purposes of self-government negotiations, and how they should be conducted and resourced.
Clearly, the issues of representation, participation and nationhood for the purposes of self-government are controversial, and in some instances divisive. The Committee heard that the concept of nationhood may be relevant and applicable in many instances where self-government is being pursued by Aboriginal peoples. However, we also received testimony supporting the view that Aboriginal nations do not represent the only organizational route to realizing self-government, or in some instances the most realistic, in light of the present day circumstances of many Aboriginal peoples – circumstances shaped by geographic, legal, cultural, social and political distinctions.
Recommendation 1
The Committee recommends that flowing from Section 35 of the Constitution Act, 1982, federal approaches to engaging Aboriginal peoples in self-government negotiations be flexible, inclusive and demonstrate sensitivity to the diverse historical and contemporary circumstances of Aboriginal peoples and their aspirations for self-government. The Committee stipulates that Aboriginal self-government is an entitlement of First Nations, Inuit and Metis peoples and recommends that negotiation and implementation processes be made available on a basis which takes their respective interests and claims into account.
2.2 Negotiation and Implementation Responsibilities within the Government of Canada
Evidence received by the Committee suggests there is a great deal of support among Aboriginal peoples for vesting administrative responsibility for negotiating and implementing relationships outside the Department of Indian Affairs and Northern Development. The Committee agrees with the assessment that DIAND is not the appropriate administrative structure in which to locate responsibility for such negotiations. Neither do we believe it is suited to the task of implementing the legally enforceable obligations of the Crown in respect of treaties and agreements with Aboriginal peoples.
Thus, the Committee is strongly convinced of the need to remove all responsibilities pertaining to the negotiation and implementation of relationships with First Nations and Inuit peoples from the Department of Indian Affairs and Northern Development, and the parallel removal of such responsibilities in respect of Non-Status Indians and Metis from the Federal Interlocutor. These responsibilities should be elevated within the administrative structure of the federal government to allow Canada to engage Aboriginal peoples in the serious negotiations demanded by new relationships, and to lead the negotiation and implementation of treaties and agreements with sufficient credibility, commitment and attention to uphold the honour of the Crown.
Recommendation 2
The Committee recommends that a new Office of Aboriginal Relations be established through legislation by the federal government to assume responsibilities for negotiating and implementing relationships with all Aboriginal peoples. This office should be located outside the Department of Indian Affairs and Northern Development. The Committee further recommends this Office be organized with two distinct and separate units: a Treaty and Agreements Negotiations Division and a Treaty and Agreements Implementation Secretariat.
The Treaty and Agreements Negotiations Division would assume lead responsibility for negotiating with all Aboriginal peoples, including First Nations, Inuit and Metis, on behalf of the Government of Canada. It could be headed up by a senior official acting as the Crown Negotiator for Treaties and Agreements with Aboriginal Peoples.
The Implementation Secretariat would execute and administer the legal obligations of the Crown, including financial obligations arising from treaties, self-government and related agreements. The Secretariat would be responsible for coordinating the government’s implementation responsibilities across federal departments and agencies, and interacting and cooperating with Aboriginal peoples on all implementation matters. Having an operational orientation, it could be subject to the management and direction of a senior official assuming responsibilities as the Implementation Secretary for Treaties and Agreements with Aboriginal Peoples. A senior government official, at the Deputy Minister level, should be assigned overall responsibility for the administration and operations of the Office of Aboriginal Relations.
We believe that the cost of establishing and operating the Office of Aboriginal Relations can be met by reallocating fiscal resources associated with federal responsibilities for the negotiation, implementation and administration of treaty and other agreements that are now within the budget of the Department of Indian Affairs and Northern Development to the new agency.
Given its close linkages with the Prime Minister’s Office we believe the Privy Council Office represents the most suitable location for the new Office of Aboriginal Relations. The PCO possesses the pertinent profile and strategic orientation that must be brought to bear in conducting relationships with Aboriginal peoples. It has operational experience in Aboriginal policy and affairs and in supporting the Government of Canada’s participation in negotiations with Aboriginal peoples. It now supports the Minister of Intergovernmental Affairs in the conduct of government-to-government relations within the federation, including with the new Territory of Nunavut.
Another option is to establish a new Ministry of Aboriginal Relations, along the lines recommended by the Royal Commission on Aboriginal Peoples. While the Committee agrees with the general direction RCAP advocated for pursuing reorganization within the Government of Canada, we are not convinced that the government is willing at this time to undertake deep structural reforms of the type envisioned by the Royal Commission. A lack of impetus to pursue such reform should not, however, delay reorganization of specific responsibilities for negotiating and implementing relationships with Aboriginal peoples by way of treaties, self-government and related agreements. Indeed, without such reorganization, the Government’s objective of establishing new relationships of partnership with Aboriginal Peoples, as outlined in Gathering Strength, will be impeded.
At such time as the federal government establishes a new administrative structure for managing all dimensions of Aboriginal affairs, in a format similar to the Department of Aboriginal Relations recommended by RCAP for example, the functions, responsibilities and duties of the Office of Aboriginal Relations could be transferred to this Department.
We envision that DIAND will, for some time, retain its traditional roles and responsibilities, including in respect of program and service delivery arrangements and the administration and management of relationships with First Nations that choose to remain under the Indian Act. However, in the long run, we anticipate that the Department of Indian Affairs could be fully dismantled and replaced by a single, more streamlined agency of the Government of Canada having responsibility for discharging the legal, fiduciary, constitutional and other obligations of the Crown arising from treaties and other agreements with all Aboriginal peoples in Canada.
2.3 A Legislative Framework to Guide the Negotiation and Implementation of Relationships
The Committee believes that without an authoritative legislative framework, it will be difficult to translate the symbolic commitments the Government of Canada has made to Aboriginal peoples into practice, and to establish and implement relationships of partnership with them. In the absence of such a legislative framework, a fragmented and inconsistently applied policy regime will continue to thwart the conclusion of treaties and agreements. Public officials will be left to interpret treaty and self-government agreements with a wide degree of latitude when such agreements are finalized or in place. Ultimately, the perception that the Government of Canada views its obligations arising from treaties and agreements as a discretionary policy matter, rather than as a legally enforceable duty, will be perpetuated, further reducing the credibility of the Government of Canada in the eyes of its Aboriginal partners.
The Committee therefore is of the view that new legislation, endorsed by Aboriginal peoples, is required to provide a broad statutory foundation and framework for the government’s policy on its relationships with Aboriginal peoples, and to support the negotiation and implementation of such relationships. Primarily, it would assist the Government of Canada in organizing itself for the purposes of negotiating, managing and administering its relationships with Aboriginal peoples. Such legislation would also provide an authoritative statutory framework from which government officials, Canadian governments, Aboriginal peoples and other parties can take direction and guidance in these matters.
To be clear, such legislation should not predetermine or prescribe the specific forms that Aboriginal self-government will take. As is now the case, additional federal legislation will be required to give effect to specific agreements, relationships and associated institutions, including those established on a regional basis. The Indian Act will need to remain in effect for those First Nations that continue to operate pursuant to it in the short and medium term.
Recommendation 3
The Committee recommends that new legislation be introduced by the federal government for the purposes of providing a broad statutory framework to guide the Government of Canada in the negotiation and implementation of relationships by way of treaties and other agreements with Aboriginal peoples. The Minister responsible for the new Office of Aboriginal Relations should have responsibility for administering this legislation.
The Committee suggests that new legislation might provide for:
- The identification of principles to guide the Government of Canada in its relationships with Aboriginal peoples. These might pertain, for example, to: the recognition of the inherent right of self-government as an existing right under Section 35 of the Constitution Act, 1982; the status of treaties and rules governing their interpretation; the representation of Aboriginal peoples in negotiations; and the government’s commitment to negotiate and implement treaties and agreements with all Aboriginal peoples in good faith.
- The recognition of the Government of Canada’s commitment to engage in various processes to establish and implement its relationships with all Aboriginal peoples in Canada. This might include treaty and agreement implementation and renewal, the negotiation of new treaties and agreements, as well as processes to implement the inherent right of self-government, either as part of a treaty relationship or separate from such arrangements. The legislation would need to make clear that such processes would be available to all Aboriginal peoples in Canada on an equitable basis, and that such processes may need to be structured flexibly to accommodate the different needs, aspirations and preferences of Aboriginal peoples.
- The identification of the types of instruments or mechanisms that would be available for implementing relationships, based on the preferences of Aboriginal peoples. These might include, for example, treaties, self-government and comprehensive land claim agreements, framework agreements, accords and legislation.
- The establishment of a broad framework and direction for treaty, self-government and related processes that are concerned with the establishment and conduct of relationships between Aboriginal peoples and Canada. The framework could address such matters as funding arrangements to support Aboriginal participation, the mandating of Aboriginal representatives, regional processes, and processes that are specific to particular groups of Aboriginal peoples.
- The identification of subject matters that could be discussed through such processes, including matters pertaining to lands and resources, governance, jurisdiction, fiscal arrangements, program and service delivery arrangements and implementation.
- The establishment of a framework to guide the negotiation and conclusion of financial arrangements, as well as the administration, management and implementation of the Government of Canada’s fiscal obligations and responsibilities stemming from treaties, self-government and related agreements.
To ensure that this new law accurately reflects and keeps pace with Aboriginal and treaty rights law as it evolves over time, legislative review measures will be necessary. In this respect, scheduled reviews of the legislation could be undertaken every five years for the purposes of identifying amendments to be made to it.
2.4 An Independent Supervisory Institution
Given the large number of recommendations that have been made by previous inquiries concerning the need for national level institutions that are independent, empowered, and have effective powers of oversight concerning Aboriginal-government relations, it is surprising to this Committee that few such structures have been established to date. The Penner Committee, for example, recommended the establishment of a monitoring agency or ombudsman, reporting to Parliament and responsible for ensuring the federal government carries out its responsibilities towards First Nations. (19)
The Royal Commission on Aboriginal Peoples recommended the establishment of independent and neutral regional treaty commissions to create an environment conducive to the renewal of treaty relationships and the establishment and conduct of new relationships.(20) The RCAP also recommended an independent Aboriginal Peoples Review Commission, to report to Parliament and monitor progress on treaty implementation, and the achievement of self-government, among other matters.(21) A centrepiece of RCAP’s recommendations for new structures to supervise the negotiation and implementation of new and renewed relationships was the Aboriginal Lands and Treaties Tribunal. This body would have many functions, including supervising and ensuring the good faith of the parties in negotiation and implementation activities. As an independent administrative tribunal it would adjudicate matters otherwise destined for litigation in the regular courts.(22)
The Committee concludes that an independent institution, reporting to Parliament, has much to contribute to the smooth operation of relationships of partnership with Aboriginal peoples. Such institution would need to be sufficiently empowered to allow it to effectively discharge its mandate as an independent overseer of Aboriginal-government relations.
The recommendations RCAP made for an Aboriginal Peoples Review Commission, Treaty Commissions and an Aboriginal Lands and Treaties Tribunal, as well as those of the Penner Committee concerning an independent ombudsman and monitoring agency provide useful guides in mandating such an institution. The Canadian Human Rights Commission and the Commissioner of Official Languages also provide concrete precedents for modelling the structure, organization, powers and duties of an Aboriginal oversight body.
RCAP recommended that many functions be allocated across several institutions. The Committee is of the view however, that these functions could instead be consolidated or integrated within a single structure. We come to this conclusion for several reasons. First, many of these functions are not incompatible. Second, our recommendation, discussed in the following section, for measures to enhance the Canadian judiciary’s capacity to hear and adjudicate Aboriginal and treaty law cases reduces the need for a separate, specialized tribunal. Third, the Government of Canada has not indicated its willingness at this time to undertake the type of institutional reform and reorganization that would be required if several new bodies, of the type recommended by RCAP, were to be created.
The Committee believes that a new institution, in the form of a Treaty and Aboriginal Rights Implementation Review Commission would fulfil the need for a national-level, independent supervisory institution. It would serve Aboriginal and government parties by assisting them to address the political aspects of their relationships when requested, and encouraging them to meet their legal obligations. This institution would also provide an important point of public access to information concerning Aboriginal-government relations for Aboriginal peoples, leaders and organizations, as well as non-Aboriginal political leaders, parliamentarians and the interested Canadian public.
Such a Commission could be assigned a broad mandate to oversee relationships in a manner which promotes, respects and upholds the Aboriginal and treaty rights of Aboriginal peoples, the honour of the Crown, and the spirit and intent, as well as the terms of treaties, self-government and related agreements and legislation. It would not, however, interfere with aspects of the relationship between Aboriginal peoples and the Crown that are in their essence political. With respect to this mandate, a Treaty and Aboriginal Rights Implementation Review Commission could be assigned several duties and associated powers. These might include a public reporting and education role, an investigative role and a role in facilitating Aboriginal-government relationships. The potential scope of these roles, and associated powers of the Commission are discussed in more detail below.
Public Reporting and Education Role:
The Commission could prepare annual reports to be submitted to Aboriginal organizations and to the House of Commons and the Senate. Annual reports would:
- relate all activities of the Commission carried out in respect of its duties;
- provide general recommendations to government and Aboriginal parties and their representatives, as appropriate; and
- identify follow-up actions taken to address recommendations made in previous reports.
The Commission could undertake activities to increase public recognition and awareness of constitutionally protected Aboriginal and treaty rights, treaties, Aboriginal self-government and relationships involving Aboriginal peoples and governments, as well as legislation pertaining to Aboriginal peoples. It could also act as a point of liaison between Aboriginal organizations, communities and institutions, parliamentary committees, departments and agencies of the Government of Canada.
Investigative Role:
The investigative role of the Commission could potentially encompass two related functions: an ombudsman-type function and a compliance-monitoring function. In its capacity as an ombudsperson for Aboriginal peoples, the Commission would receive complaints and, where warranted, investigate and report on alleged breaches of treaties, self-government and related agreements and legislation (including new legislation on Aboriginal-government relations), Aboriginal and treaty rights, and the fiduciary obligations of the Crown. As part of its investigative role the Commission could also, in defined circumstances, initiate independent investigations and undertake compliance-monitoring or "audits" in respect of these matters.
Facilitation Role:
The Commission could also play an active role in promoting and facilitating non-adversarial discussions between Aboriginal and government parties, by actively assisting them to address matters which arise in the course of negotiating and implementing their relationships. On request, the Commission could be employed to guide the parties in their discussions, in accordance with fair and proper standards of conduct.
In fulfilling all of the roles identified above, the Treaty and Aboriginal Rights Implementation Review Commission’s mandate could extend to matters relating to:
(a) new legislation to guide the Government of Canada in negotiating and implementing relationships with Aboriginal peoples, as proposed in Recommendation 3 above;
(b) the negotiation and implementation of relationships and associated treaty, self-government and related agreements and legislation;
(c) the recognition and upholding of the Aboriginal and treaty rights of the Aboriginal Peoples of Canada; and
(d) the fiduciary relationship, and discharge of the Government of Canada’s fiduciary obligations in respect of Aboriginal peoples.
With respect to its structure, organization and appointments, the Treaty and Aboriginal Rights Implementation Review Commission could be composed of a Chief Commissioner and regular members appointed by the Governor-in-Council. The Chief Commissioner could be appointed by resolution of the House of Commons and the Senate, with the concurrence of organizations representing Aboriginal peoples. The appointment of regular members should be made on the basis of nominations put forward by national organizations representing the Aboriginal peoples of Canada, including those who represent Aboriginal women and urban Aboriginal peoples. One or more members should be nominated by the Government of Canada.
The Commission's independence from government would be secured by the appointment process, the Commission's reporting procedure, and the Commission's freedom to recruit its own staff and set the terms and conditions of employment.
In light of the testimony we received, and our findings and conclusions on the need for an independent institution to guide the establishment and operation of relationships between the Government of Canada and Aboriginal peoples:
Recommendation 4
The Committee recommends that, with the agreement of Aboriginal peoples and their representative organizations, the Government of Canada establish through legislation a Treaty and Aboriginal Rights Implementation Review Commission. The Commission should serve as an independent oversight body for relationships involving Aboriginal peoples and the Government of Canada and should report to Parliament.
The Committee further recommends that the mandate of the Treaty and Aboriginal Rights Implementation Review Commission comprise three primary roles:
i. A public reporting and education role;
ii. An investigative role, encompassing ombudsman and compliance-monitoring functions; and
iii. A facilitation role.
The Treaty and Aboriginal Rights Implementation Review Commission, as a new independent institution assuming oversight functions in respect of Aboriginal-government relations could be established in a part of the new legislation outlined above in Recommendation 3. Such legislation could set out the roles, powers, duties and structure of the Commission, as described above.
2.5 The Canadian Judiciary
Complex issues are raised in the adjudication of Aboriginal and treaty rights cases. These issues must be resolved using doctrines of law uniquely applicable to Aboriginal peoples and their rights.
Enhancing the capacity of the Canadian judiciary to deliver justice services to Aboriginal people remains an important imperative. In this regard we see a need for presiding judges at all levels of the judiciary in Canada, senior court officials and lawyers to be given opportunities for cross-cultural training and education on an ongoing basis to enhance their awareness of Aboriginal and treaty rights, developments in Aboriginal law, as well as Aboriginal perspectives, cultures and traditions, and legal issues facing Aboriginal peoples.
We believe that by improving the capacity of the Canadian judicial system to adjudicate cases involving Aboriginal and treaty rights, consistent, timely, authoritative and enforceable decisions and remedies will be more readily available to Aboriginal peoples than is now the case.
Recommendation 5
The Committee recommends that judges, senior officials and lawyers working at all levels of the judiciary in Canada be given opportunities for cross-cultural training and education to enhance their awareness of Aboriginal and treaty rights, developments in Aboriginal and treaty law, as well as Aboriginal perspectives, cultures and traditions, social and legal issues facing Aboriginal peoples.
3. Implications of Our Recommendations
Our recommendations have implications for all three branches of government. The executive is called upon to change the way it is organized to manage and administer relationships with Aboriginal peoples. Parliament will become more fully engaged in matters pertaining to Aboriginal and treaty rights and Aboriginal-government relationships with the establishment of an independent Treaty and Aboriginal Rights Implementation Review Commission that reports directly to it. The legislative branch of government will also have an ongoing role in reviewing the implementation of new legislation guiding the federal government in its relationships with Aboriginal peoples and participating in debates concerning amendments to the new Act. Finally, our recommendations call for new initiatives to enhance the capacity of the Canadian judicial system to deliver justices services to Aboriginal peoples in a timely, consistent and authoritative manner.
We believe that the participation of all branches of government as well as Aboriginal peoples in these reforms is appropriate, given the symbolic and practical implications that new relationships will have for ensuring reconciliation and partnership between Aboriginal and non-Aboriginal Canadians.
We also believe that Aboriginal peoples and organizations must be full partners with the government in carrying out and implementing these recommendations. Their agreement is required to put in place the various mechanisms we recommend.
Our recommendations are directed at overcoming systemic and structural impediments to the timely and efficient negotiation and implementation of new relationships. We anticipate that, if acted upon, our recommendations for institutional and legislative reform will better serve both governments and Aboriginal peoples as they work cooperatively to establish relationships of partnership and coexistence. Above all else, the Committee hopes that its recommendations will help create a climate that is conducive to allowing the creative and richly diverse approaches to Aboriginal government and Aboriginal-government relations that Aboriginal peoples are developing and advocating to be realized in practice.
Although a reallocation of existing resources and the dedication of some new resources will be required to implement our recommendations, over time, we anticipate system-wide fiscal savings as treaties, agreements and relationships between Aboriginal peoples and Canada are negotiated and implemented in a more timely, consistent and predictable fashion. Savings will also be realized as the government’s administrative structures are reoriented to support partnership rather than dependency-based relationships, and when the incentive for Aboriginal and government parties to use the courts as a primary forum for dispute resolution diminishes with the proper implementation of the Crown’s legal obligations and with the supervision of relationships by a neutral, independent oversight body.
In Gathering Strength: Canada’s Aboriginal Action Plan, the Government of Canada responded to RCAP by signalling its commitment to renewing partnerships with Aboriginal peoples. The Committee recognizes that the single most important ingredient in forging new relationships between Aboriginal peoples and government is the political will of the government of the day. We hope our recommendations will add further impetus to the realization of commitments made to Aboriginal peoples by the Government of Canada in Gathering Strength.
Finally, in the course of the Committee’s work, our attention was drawn to the Final Report of the United Nations’ Special Rapporteur on Treaties, Agreements and other Constructive Arrangements between States and Indigenous Populations. We note that many of our recommendations for structural change mirror those made by the Special Rapporteur. In particular, he recommended an advisory conflict-resolution body, a new legislative order, and appropriate administrative and judicial structures to manage relationships between indigenous and non-indigenous peoples and governments(23). The Committee believes that Canada's actions must be consistent with developing international principles and standards of human rights as they apply to indigenous peoples.
ISSUES RELATED TO ABORIGINAL SELF-GOVERNMENT
In the course of our hearings, witnesses discussed with us many important issues related to our mandate to study Aboriginal governance. In Part One, the Committee focused on the structural and institutional foundations we believe are required to support new relationships based on partnership. Our recommendations are aimed at effecting improvements in Aboriginal-government relations. This is one dimension of Aboriginal self-government.
In this part of our report, we shift our attention to matters that impinge upon other aspects of Aboriginal governance, including the structure, powers and financing of Aboriginal governments and capacity-building. Given the Committee's focus in this report on structural and institutional change, we decided not to make recommendations on these matters. However, we think it is important to document some of the issues, problems and proposals presented to us. Accordingly, this part provides an overview of what we heard.
1. Approaches to Aboriginal Governance
As part of our study, Committee members wanted to learn more about self-government arrangements, including different approaches to structuring Aboriginal governments, and the potential scope and exercise of Aboriginal governance authority. In view of the demographics of the Aboriginal population -- according to a paper prepared by the National Association of Friendship Centres and the Law Commission of Canada, over 50% of the Aboriginal population now lives in urban centres(24)-- we were particularly interested in exploring approaches to Aboriginal governance in urban and off-reserve environments.
Witnesses from across the country commented on features such as governing structures, powers and responsibility, and membership within the context of a wide variety of arrangements. Presentations were widely diverse. Some arrangements reflected on/off reserve distinctions and divisions created by the Indian Act and federal policies, and in some cases, attempts to overcome these divisions. These models demonstrated creativity, at the same time pointing to the challenges associated with the development and implementation of different approaches. Witnesses repeatedly told us that "no one size fits all," and that approaches to self-government must accommodate diversity and allow for evolution over time. They also stated that it would be inappropriate for the federal government or provincial governments to dictate models of self-government.
The structural approaches to self-government that we heard about included public government, in which Aboriginal peoples comprising the majority in a particular territory share a common government with all residents; multi- or single-level forms of government specific to a particular Aboriginal group or nation; off-reserve pan-Aboriginal government; and various alternatives for urban governance. The Committee recognizes that these represent only a portion of the rich variety of approaches to Aboriginal governance that are being contemplated and developed by Aboriginal peoples. Here, we highlight some of the approaches and innovative features presented to us.
1.1 Public Government
With the establishment of Nunavut, Canadians are now familiar with the concept of public government in a context where Aboriginal people form the majority of the population. In our hearings, witnesses spoke about public government models being advanced by the Inuit of Nunavik (northern Quebec) and the Inuvialuit and Gwich’in of the Beaufort-Delta region of the Northwest Territories The Inuit of Nunavik wish to bring public bodies in that region, many of which were established under the James Bay and Northern Quebec Agreement, under the jurisdiction of a single government and Nunavik Assembly, elected by all residents of the region, both Aboriginal and non-Aboriginal. In the Northwest Territories, the Inuvialuit and Gwich’in are pursuing a form of regional public government. These governments would exercise government authority in respect of matters of a local nature, as well as in some instances provincial-type jurisdictional authorities, but these would be subject to federal and territorial standards.
1.2 Land-Based Metis Government
As the only Metis communities in Canada that have secured a collective land base for their members, the eight Metis settlements located in Alberta are in a unique situation. In 1989, the Province of Alberta and the Federation of Metis Settlements entered into an Accord that provided for a Metis land base, protected in the Constitution of Alberta, and a significant degree of governing power(25). Under the Accord, the Metis Settlements General Council (MSGC) holds land in fee simple on behalf of the eight Metis Settlements(26). By-law making powers set out under the Metis Settlements Act include matters normally associated with municipalities, as well as some areas for which the provincial government is usually responsible. Each settlement has a local council that governs in respect of local matters. The five council members of each local settlement council comprise the Metis Settlements General Council, which has jurisdiction over matters of concern to all eight settlements. This governance arrangement provides a useful model of how a "federal" system of Aboriginal government can operate.
To resolve disputes under the Metis Settlements legislation and to provide an effective and culturally sensitive forum to address issues outside the regular court system, the Metis Settlements Appeals Tribunal was created. This tribunal has exclusive jurisdiction over all land and membership disputes, and can act as a mediator or arbitrator under the Arbitration Act. It can exercise jurisdiction over any dispute, with the agreement of all concerned parties.
Another interesting feature of the Accord’s provisions for Metis governance is the seven year transitional phase, during which certain governmental functions remain under the control of a Transition Commission. The Transition Commission was designed to assist the Metis Settlement Councils and the General Council in acquiring greater responsibilities for governance of the Metis Settlements. The Accord also provided transitional funding over the same period to bring the physical and administrative infrastructure of the settlements to levels comparable with other rural municipal governments in Alberta. We were told that such a transition period has many benefits: it can allow for the development of infrastructure, training, technical and administrative support, while giving the parties an opportunity to adjust to a new governing framework.
1.3 Nation or Treaty-Based Approaches
The New Brunswick Aboriginal Peoples Council (NBAPC), an organization representing Aboriginal people living off-reserve, described their vision of an integrated form of Aboriginal government comprising several tiers. The first tier, the tribal level, would require a reconstitution of Mikmaq and Maliseet tribal governments. Mikmaq and Maliseet people would be citizens of their tribal government regardless of residence and Indian Act status. The tribal government would have jurisdiction over certain matters affecting the nation, such as land claims, Aboriginal and treaty rights, tribal membership, culture, language, spirituality and history. The second tier of government would consist of service delivery institutions in areas such as housing, economic development, and job training. These institutions would again serve all citizens of the nation. The third tier would provide for the involvement of the Mikmaq and Maliseet nations in the federal and provincial legislatures. The NBAPC proposed that seats be set aside in Parliament and the provincial legislature for Aboriginal representatives elected by all members of the nation regardless of residency.
A treaty-based model was presented by the Congress of Aboriginal Peoples (Saskatchewan) and the Treaty Four Governance Committee. They described a model of self-government organized within Treaty Four territory. The 33 Treaty Four First Nations would form a Governing Council (Legislative Assembly) for the territory. This Governing Council would include members living on and off reserve.
1.4 Urban Governance
In cities across Canada, Aboriginal people are developing institutions and models for urban governance. Some of these, we heard, involve Aboriginal peoples of various origins, while others are based on membership in a particular nation. Witnesses explained that in urban areas, Aboriginal governance could take various forms. They argued that self-government must be understood to encompass a wide range of structural and governance arrangements and types of responsibilities. They also stressed that approaches to self-government for Aboriginal people in urban areas must demonstrate considerable flexibility.
The Law Commission of Canada and the National Association of Friendship Centres have launched a joint project to reassess approaches to urban Aboriginal governance. In a paper tabled with the Committee, they reviewed three main approaches: "nation-specific", "urban community", and "territorial/majority". (27)
- Nation-specific models would involve urban Aboriginal residents of common heritage. The LCC-NAFC paper suggests that nation-specific initiatives could take an extraterritorial form, in which urban members participate in and are directly or indirectly served by land-based governments, or could involve urban Aboriginal residents of common heritage initiating self-government on their own. The nation-specific approach was described as consistent with RCAP's recommendation that self-government be undertaken at the level of the Aboriginal nation.
- Under urban community approaches, Aboriginal residents of urban areas, regardless of status, treaty, nationality or other criteria, would form common authorities for governance over certain institutions or jurisdictions.
- Territorial/majority approaches would involve distinct Aboriginal communities or reserves within an urban setting exercising self-governing powers. These approaches could be pursued on a nation-specific or "pan-Aboriginal" basis.
Witnesses from the LCC and NAFC suggested that these approaches each have practical relevance as well as weaknesses. Marc Maracle of the NAFC emphasized that there is not now an adequate forum in which urban governance issues can be discussed. He emphasized that people need to come to the table to discuss self-determination and what is appropriate for them as individuals, families, and communities.
Vera Pawis Tabobondung of the Ontario Federation of Indian Friendship Centres stated that regardless of the model pursued, Aboriginal urban governments should not be a mirror of municipal governments. She commented that urban Aboriginal demographics call for the "design [of] something that is fresh, new and innovative in terms of governance in the urban Aboriginal community." (Issue 23, March 17, 1999, p. 30.)
1.5 The Scope and Exercise of Aboriginal Governance Authority
Witnesses shared similar views concerning the scope and exercise of Aboriginal self-government powers. Those who addressed the topic identified powers of Aboriginal self-government as variously encompassing the authority to establish and structure Aboriginal governments, to determine membership and citizenship, control lands and resources, protect and promote language and culture, and to provide for social and economic development and well-being through the exercise of authority in a range of jurisdictional fields. A common view is that Aboriginal governing authority extends well beyond matters of a purely local nature into jurisdictional fields now occupied by federal and provincial governments.
Aboriginal groups that are engaged in self-government initiatives and negotiations confirmed that Aboriginal peoples are seeking recognition of their governance capacities and authorities across a very wide range of areas and jurisdictions.
Many witnesses appearing before the Committee identified access to and control over a land and resource base as a critical jurisdictional ingredient in the financing of self-sufficient Aboriginal governments.
Other interveners noted the primary importance of considering the purposes and goals that the exercise of Aboriginal self-government should ultimately serve. The B.C. Aboriginal Women’s Council for example, suggested that Aboriginal governments must be able to address economic and social development concerns, and should effect positive change in areas such as the delivery of social services, labour force participation and training.
Grand Chief Joseph "Tokwiro" Norton of the Mohawk Council of Kahnawake suggested that jurisdictional authority must be exercised in a manner which is compatible with the traditions, customs and culture of the people, even in situations where harmonization with other federal and provincial laws and authorities is an imperative or objective.
In a joint presentation, the Treaty Four Governance Committee and the Congress of Aboriginal Peoples (Saskatchewan) adopted RCAP’s position on the scope of the inherent right of self-government. RCAP described the scope of the inherent right of self-government as comprising "all matters related to the good government and welfare of Aboriginal peoples and their territories." The Commission divided this sphere of authority into two sectors: a core and a periphery. The core sector broadly encompasses all matters of vital concern to the life and welfare of a particular Aboriginal people, its culture and identity; and the periphery encompasses matters that may have a major impact on adjacent jurisdictions and would require substantial coordination with other governments.
With respect to the scope of Aboriginal governance, in its brief, the Mamuitun Tribal Council expressed support for proposals similar to those reflected in the Charlottetown Accord. The Council recommended that:
The government of Canada should confirm and reiterate that the exercise of the right to self-government includes the power of legislative bodies duly constituted by the First Nations to enact laws in order to: preserve their languages, cultures, economies, identities, institutions, and traditions and to ensure they flourish; develop, maintain and strengthen their links with their lands, waters and environment; ... [and to] determin[e] and control their development as peoples in accordance with their own values and priorities and to ensure the integrity of their societies.(28)
Aboriginal witnesses were very cognizant of the great diversity among Aboriginal peoples and nations and the unique history and culture of each. In our hearings, individuals and organizations were hesitant to propose any one analysis of the scope of governance authority that would be applicable to all situations.
Witnesses also emphasized that the powers to be exercised need to evolve over time, as Aboriginal peoples develop their governance authorities and capacities. Such evolution may take place in consultation with other affected governments. An incremental approach could address the differing experiences, history and capacity of each group of Aboriginal peoples.
2. Financing Aboriginal Governments
Self-government cannot be achieved without a strong foundation of effective and efficient fiscal arrangements. Current arrangements, in particular those between DIAND, Indian Act bands and tribal councils, were described by witnesses as inadequate, cumbersome and, more importantly, based on principles that have little relation to the actual needs of communities(29). Harold Calla, Director of Finance for the Squamish Nation, made the following observations:
First Nations governments are probably the only governments left that function on 12-month planning sections because that is all that Indian and Northern Affairs Canada allows us. We function based not upon what our needs are but upon what funds are made available. We have to start identifying our real needs and put them forward in a way that reflects the real cash flow required to make our government function … we have endured for too long the relationship of contribution agreements with the federal government through Indian and Northern Affairs Canada. (Issue No. 16, December 2, 1998, p. 9)
Aboriginal governments and organizations that receive funding through other means echoed similar concerns. For example, we were told that funding levels to support Metis aspirations do not in any way reflect per capita needs.
Several principles for fiscal arrangements emerged from our testimony:
- Aboriginal governments must be assured of the necessary funds to provide a standard of service comparable to neighbouring non-Aboriginal governments and consistent with their jurisdictional responsibilities. Representatives of the Federation of Saskatchewan Indian Nations emphasized that fiscal arrangements must ensure that Aboriginal governments can provide a comparable level of programs and services, but also must also take into account the need for Aboriginal communities to catch up to base line provincial and national standards of economic and social development.
- A fiscal policy framework for the funding of Aboriginal governments is required. In a joint brief, the Inuvialuit Regional Council and Gwich'in Tribal Council called for a fiscal policy framework, noting that in the absence of such a framework, Aboriginal groups must negotiate self-government agreements without any assurance that sufficient resources will be in place to support their governments. Similar recommendations on the need for umbrella approaches and certainty in financing were made by the Federation of Saskatchewan Indian Nations.
- Barriers to economic self-sufficiency must be removed so that opportunities for "own-source" funding can be enhanced. Many witnesses identified barriers to fiscal autonomy and economic development stemming from the Indian Act. The Indian Taxation Advisory Board and other interveners spoke to us of the potential for revenue generation through the exercise of powers of taxation by Aboriginal governments. The Indigenous Bar Association pointed out that alternative financial instruments should be explored for their potential application in Aboriginal government contexts. Many interveners recounted their experience with Aboriginal economic development initiatives and institutions that operate for the benefit of Aboriginal communities. Their evidence confirmed that economic development initiatives provide a valuable source of funds that can be directed to various purposes, at the discretion of Aboriginal peoples and their governments.
- Many witnesses linked the issue of financing Aboriginal government with an Aboriginal land and resource base. They reiterated the need for greater access to lands and resources, and opportunities to develop and manage these in ways which are compatible with Aboriginal traditions of stewardship and collective ownership. We also heard calls for a more equitable sharing of the economic benefits derived from the use, development and exploitation of lands and resources within the traditional territories of Aboriginal peoples. In their presentation, the Atikamekw Nation Council spoke of Aboriginal government powers to make laws in respect of lands and resources in order to finance their governments.
- Finally, fiscal arrangements must provide for accountability to community members. Some Aboriginal witnesses expressed their concern about systems of financial accountability and the financial management practices of their governments and organizations. We also heard evidence of changes that are being made in this area at a community level and through forums that involve Aboriginal and non-Aboriginal governments in discussions about new fiscal arrangements and the principles for sound fiscal management.
In Saskatchewan, the federal government and the Federation of Saskatchewan Indian Nations are involved in bilateral Treaty Table discussions (with the province as observer). A Fiscal Relations Table was set up under the main Treaty Table to discuss government-to-government fiscal relations. The Indigenous Bar Association suggested that a national Fiscal Relations Table could serve as a means to facilitate discussion on options for the funding of Aboriginal governments.(30)
The Committee believes that processes to discuss options for improving fiscal relations are a positive and important step, and one that could be adopted in other regions, provinces or on a national level.
3. Capacity Building For Aboriginal Governance
Witnesses told us that just as institutional and legislative reforms are required to establish a firm foundation for negotiating and implementing relationships, so too are measures to assist Aboriginal peoples in building their governance capacity. The experience of colonization and decades of outside administration has been devastating to once sovereign and independent Aboriginal peoples. We heard that the ability of Aboriginal communities to govern themselves is dependent on the development of skills and internal capacity to take on and effectively administer new arrangements. As Grand Chief Perry Bellegarde of the Federation of Saskatchewan Indian Nations told the Committee, "We need to restore self-government by building capacity and accountability."(31)
The creation of an Aboriginal governance institute to aid in capacity building was a key recommendation of the Royal Commission on Aboriginal Peoples. The Commission called for the federal government, in cooperation with national Aboriginal organizations, to establish an Aboriginal government transition centre with a mandate to:
(a) research, develop and coordinate, with other institutions, initiatives and studies to assist Aboriginal peoples throughout the transition to Aboriginal self-government;
(b) develop and deliver, through appropriate means, training and skills development programs for community leaders; and
(c) facilitate information sharing and exchange among community facilitators, leaders and others involved in nation rebuilding processes.
The Committee's experience during the course of our hearings has certainly reaffirmed the pressing need for such an institute. In his testimony, Grand Chief Bellegarde emphasized that training for the leaders and administrators of Aboriginal governments is required. He described a proposal for a governance institute that is being developed by the Federation of Saskatchewan Indian Nations:
A governance institute would be a place for training and education, constitutional development, citizenship acts, inherent rights, customs and laws. It is a First Nation initiative intended to provide professional training for First Nation leaders and administrators in three aspects of capacity: training of leaders, chiefs and councils, executive officers and band administrators; community discussion and engagement in rebuilding government; and development of model citizenship codes, constitutions, legislative and policy instruments and other tools of governance. (Issue No. 28, May 4, 1999, p. 31.)
Witnesses from the Inuvialuit Regional Council and the Gwich'in Tribal Council stressed that capacity-building must take place during the negotiation of self-government agreements, to ensure that communities are ready to take on new roles. John Graham of the Institute on Governance, who described building governance capacity as a long-term process with a very long start-up period, echoed this view.
In their presentation, the Indigenous Bar Association urged governments in Canada to facilitate the rebuilding of Aboriginal peoples’ capacity to govern themselves in ways that are appropriate to their respective cultures. The IBA endorsed RCAP's recommendation for an Aboriginal government transition centre and expressed the association's willingness to play a significant role in its implementation, in light of its Aboriginal perspective and expertise in law and governance issues.
Several witnesses related their experiences in developing self-government. For example, representatives from the Metis Settlements General Council told us of some of the key lessons they learned from their experience in implementing governing structures over the last 10 years. They spoke to us about such practical matters as terms of office for elected officials, by-law- and decision-making processes. This type of valuable experience and knowledge can and should be shared with others.
The question of accountability is closely linked to capacity-building and the development of good governing practices. We know that accountability is a significant concern both within and outside Aboriginal communities, and heard disturbing testimony on this subject.
Representatives of the First Nations Accountability Coalition (FNAC) expressed grave concerns about current financial management practices within First Nation communities. They questioned how members can be enthusiastic about increased self-government and financial discretion when some leaders are abusing the limited powers that currently exist under the Indian Act. Leona Freed, FNAC (Manitoba) president, recommended the appointment of an Aboriginal ombudsman to provide an avenue for band members who feel that their government is mismanaging band funds.
In our view, a governance institute can play an important role in building accountable governments through skills training, developing governance tools and appropriate checks and balances within government administration and management, and sharing good governance practices.
The Committee believes that capacity-building is an essential component in the reestablishment and development of Aboriginal governments. The federal government has expressed its support for initiatives in this area. In Gathering Strength, the government stated that it is "prepared to work with Aboriginal people to explore the possible establishment of governance resource centres."(32) More recently, DIAND indicated that it plans to establish governance transition centres to highlight best practices and maximize shared experience and expertise.(33) While the Committee applauds such initiatives, some witnesses voiced their concern that the federal government has been slow to take action.
The Committee calls on the federal government to follow through with its Gathering Strength commitment to support Aboriginal government capacity-building. We believe strongly that the time for action is now, while many Aboriginal governments are in the process of rebuilding and assuming new and enhanced authority.
The Committee agrees in principle with the concept of a national institution such as that proposed by RCAP. We foresee such an independent institution serving a role as described by RCAP, the FSIN and others: research, information gathering and sharing on Aboriginal governance matters; training and skills development for community leaders; development of model citizenship codes, legislative instruments, and other tools of governance; sharing best practices, and related functions.
In our view, capacity-building can be best supported by an institute (or institutes) that is impartial and independent of the federal government. In practice it may be that regional centres, with national links, might best serve the needs of Aboriginal communities. Such
an agency should be directed and administered by Aboriginal peoples, and should accommodate the cultural diversity that exists among them. National Aboriginal organizations, the Indigenous Bar Association and other Aboriginal institutions and organizations with expertise in capacity-building and accountability could be invited to share in the development of options and strategies for implementation.
4. Aboriginal Women and Self-Government
Representatives of Aboriginal women's organizations who appeared before our Committee spoke about the importance of ensuring that the voices of Aboriginal women are heard in self-government initiatives. As Veronica Dewar of Pauktuutit stated, "we cannot fly together if one of us has a broken wing."
Representatives from Aboriginal women's organizations and others told us that Aboriginal women are particularly alienated from meaningful participation in self-government and related initiatives. This is a consequence of their marginal social and economic circumstances, and the fact many Aboriginal women and their children live off-reserve and are thereby excluded from community decision-making processes. In their presentation to the Committee, the B.C. Aboriginal Women’s Council identified the disadvantage, frustration and exclusion women experience as stemming from lack of information about the activities of Aboriginal leaders in the area of self-government, and the limited opportunities they have for inclusion in consultation processes.
Some Aboriginal witnesses, including those not specifically appearing before us as the representatives of Aboriginal women, noted the valued, influential roles of Aboriginal women in the governing traditions of many Aboriginal societies, as well as in traditional economic and social structures. They spoke of the need to include Aboriginal women in political structures and processes in ways that build on these traditions, and honour and value women.
Veronica Dewar of Pauktuutit called on the federal government to assume a leadership role on the issue of gender equality in self-government negotiations. Representatives of the Metis National Council of Women (MNCW) drew attention to RCAP's recommendation for the federal government to provide funding to Aboriginal women's organizations to facilitate their participation in self-government and nation-building processes. They noted that while Gathering Strength expressly refers to the importance of involving women in such processes, additional funding has not been forthcoming from the federal government to meet this imperative.
Witnesses also commented on Aboriginal women's rights. Both Veronica Dewar and Marilyn Buffalo, President of the Native Women's Association of Canada, supported the view that the Canadian Charter of Rights and Freedoms applies to self-government arrangements. Ms. Dewar told the Committee:
I firmly believe that all Aboriginal Canadians, men and women, would seek the same kind of protection and equality that the Charter offers. For example, who could argue with section 7, which states that everyone has the right to life, liberty and the security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. (Issue No. 25, April 13, 1999, p. 46.)
Based on the message that we received from Committee witnesses, we believe that serious efforts must now be made to ensure the inclusion of Aboriginal women in the development, negotiation and implementation of Aboriginal self-government initiatives. Such initiatives will benefit greatly when the voices of Aboriginal women are heard.
In addition to comments on the participation of women in self-government initiatives, we heard broader concerns expressed about the role and treatment of Aboriginal women. The B.C. Aboriginal Women's Council raised the issues of employment equity for Aboriginal women, the full inclusion of Aboriginal women in healing initiatives, and more generally, the disproportionate levels of unemployment, substandard education, poverty, welfare, and economic hardship that Aboriginal women experience. Aboriginal women's organizations called for additional government funding to support various programs and initiatives.
5. Aboriginal Youth and Self-Government
The Committee was very interested in hearing the perspectives of Aboriginal youth and learning about circumstances they face in the context of self-government. In her testimony, Stacy Hill, President of the Aboriginal Youth Council of the National Association of Friendship Centres drew attention to the demographics of the Aboriginal population, and stressed the importance of involving youth in discussions on governance. Witnesses identified challenges faced in constructively engaging youth in self-government initiatives, but also spoke about various means by which Aboriginal groups are trying to facilitate youth involvement.
Veronica Dewar of Pauktuutit spoke about the lack of job opportunities for youth in Aboriginal communities in the north. She recalled talking to one youth who said she was going to high school, but had no future because there were no jobs in the community. While she did not wish to leave her relatives and family, she had no choice but to do so in order to seek employment.
A submission from the National Association of Friendship Centres provided an urban youth perspective. It made the following observations:
[T]oday's youth are the main repository of hope for the renewal of Aboriginal societies and cultures, many of which are desperately fragmented. Yet Aboriginal youth in urban areas are facing poverty levels that are truly horrific. All the related issues of substance, sexual and physical abuse and family breakdown threatens yet further generations of parents and children with disability, disadvantage and destructive social conditions. In the absence of effective Aboriginal governance, youth turn to alternative structure and institutions to find relevance and meaning … such as youth gangs.(34)
These examples tell us that more must be done to engage Aboriginal youth in constructive ways. Our Committee is of the view that increased efforts to involve youth in decision-making are urgently needed.
More positively, we heard about ways in which Aboriginal organizations are including youth in their institutions and governing structures. For example, we were pleased to hear about the steps taken by the NAFC to bring the youth voice into their movement, and about the joint efforts of the NAFC and the Law Commission of Canada in carrying out research on youth and urban Aboriginal governance. The NAFC has an Aboriginal Youth Council which is an integral part of the organization's structure. Indeed, it was one of the few organizations to include youth in their delegation before our Committee. Stacey Hill,
President of the Aboriginal Youth Council, provided a first hand example of how the inclusion of Aboriginal youth in political decision-making empowers and focuses youth in constructive ways.
Other witnesses also commented on youth initiatives and self-government. For example, the Mamuitun Tribal Council told us that they have set up youth councils and have used schools to involve young people in the consultation process on their draft agreement-in-principle.
Involving Aboriginal youth in self-government initiatives is a positive step for Aboriginal communities. It can only help to promote constructive and innovative ideas for Aboriginal peoples to further Aboriginal self-government. The Committee is heartened by efforts such as those made by the NAFC to involve youth. We encourage governments to assist Aboriginal organizations and governments in promoting such involvement.
The Committee is strongly convinced that the development of new and renewed relationships, based on partnership with Aboriginal peoples, requires legislative and institutional reforms. We believe that the measures recommended in the report will better serve governments and Aboriginal peoples as they work to build these relationships. The Committee hopes that its recommendations will also help to create a climate that facilitates diverse approaches to Aboriginal governance. Finally, we note again that the single most important ingredient is the political will of the government. The Government of Canada must take action -- both to implement the recommendations made by this Committee and others like it, and to truly live up to its commitments to forge new relationships based on principles of partnership and respect.
Recommendation 1
The Committee recommends that flowing from Section 35 of the Constitution Act, 1982, federal approaches to engaging Aboriginal peoples in self-government negotiations be flexible, inclusive and demonstrate sensitivity to the diverse historical and contemporary circumstances of Aboriginal peoples and their aspirations for self-government. The Committee stipulates that Aboriginal self-government is an entitlement of First Nations, Inuit and Metis peoples and recommends that negotiation and implementation processes be made available on a basis which takes their respective interests and claims into account.
Recommendation 2
The Committee recommends that a new Office of Aboriginal Relations be established through legislation by the federal government to assume responsibilities for negotiating and implementing relationships with all Aboriginal peoples. This office should be located outside the Department of Indian Affairs and Northern Development. The Committee further recommends this Office be organized with two distinct and separate units: a Treaty and Agreements Negotiations Division and a Treaty and Agreements Implementation Secretariat.
Recommendation 3
The Committee recommends that new legislation be introduced by the federal government for the purposes of providing a broad statutory framework to guide the Government of Canada in the negotiation and implementation of relationships by way of treaties and other agreements with Aboriginal peoples. The Minister responsible for the new Office of Aboriginal Relations should have responsibility for administering this legislation.
Recommendation 4
The Committee recommends that, with the agreement of Aboriginal peoples and their representative organizations, the Government of Canada establish through legislation a Treaty and Aboriginal Rights Implementation Review Commission. The Commission should serve as an independent oversight body for relationships involving Aboriginal peoples and the Government of Canada and should report to Parliament.
The Committee further recommends that the mandate of the Treaty and Aboriginal Rights Implementation Review Commission comprise three primary roles:
i. A public reporting and education role;
ii. An investigative role, encompassing ombudsman and compliance monitoring functions; and
iii. A facilitation role.
Recommendation 5
The Committee recommends that judges, senior officials and lawyers working at all levels of the judiciary in Canada be given opportunities for cross-cultural training and education to enhance their awareness of Aboriginal and treaty rights, developments in Aboriginal and treaty law, as well as Aboriginal perspectives, cultures and traditions, and legal issues facing Aboriginal peoples.
List of Witnesses
Tuesday November 3, 1998
Cree Naskapi Commission:
Richard C. Saunders, Interim Chairman
Philip Awashish, Commissioner
Robert Kanatewat, Commissioner
Wednesday November 4, 1998
Campbell River First Nations:
Chief John Henderson
Native Brotherhood of B.C:
Christine Hunt, First Vice President
Laxgal'Sap Nisga'a Fishersmen's Commission:
Chief Hubert Haldane
Kwaitul First Nation:
Chief Alfred Hunt
Allied Tribes Tsimshian Nation:
Victor Kelly, Spokesperson
Gitxsan Wet'suwet'en:
Richard Morgan
Namgis First Nations:
Greg Wadhams, Councillor
United Fishermen and Allied Workers' Union:
John Radosevic, President
Wednesday November 18, 1998
Metis Settlements General Council :
Ken Noskey, President
Wednesday November 25, 1998
National Aboriginal Housing Association:
Mel Buffalo, President
Tuesday, December 2, 1998
Squamish First Nations B.C.:
Harold Calla, Director of Finance
Jason Calla
Tuesday, February 2, 1999
Mamuitun Tribal Council:
Rémy "Kak'wa" Kurtness, Chief Negotiator
Chief René Simon
Chief Denis Ross
Chief Clifford Moar
Congress of Aboriginal Peoples (Saskatchewan):
Jim Sinclair, President
Jake Falcon, Board Member
Treaty 4 Representatives:
Ron Crowe, Treaty 4
Tony Côté, Treaty 4
Akaitcho Territory Tribal Council:
Chief Jonas Sangris, Yellowknives Dene (Dettah)
Chief Don Balsillie, Deninu K’ue
Sharon H. Venne, Chief Negotiator
Bank of Montreal:
Ron Jamieson, Senior Vice-President
Wednesday, February 3, 1999
O.I. Group of Companies:
Roger Obonsawin, President
Aboriginal Women’s Council:
Leonie Rivers, Acting Administrator
Lynne Widdows, Technician, Sko’mish
Nunavut Implementation Commission:
John Amagoalik, Chief Commissioner
Tuesday, February 9, 1999
Indian Taxation Advisory Board:
Chief Clarence Manny Jules
Individual:
Martin Dunn, Consultant
First Nations Forum:
Sol Sanderson, Chairman
Chief Eddy Head
Chief Roy Head
Wednesday, February 10, 1999
Makivik Corporation:
Pita Aatami, President
Harry Tulugak, Executive Assistant to the President
Johnny Peters, Vice President
George Berthe, Corporate Secretary
Metis National Council of Women:
Sheila Genaille, President
Alma Adams, Vice President
Marie Anne Piché, Director
Wednesday, February 10, 1999 (continued)
Native Council of Canada:
Dorris Ronnenberg, President
Richard Long, Executive Director
Keith Chiefmoon, Southern Director (Standing)
Barbara Wendt, Elected Councillor (Beaver First Nation - High Level
Alberta)
Tuesday, February 16, 1999
Michel Band:
Gilbert Anderson, Chief and President
Caren Buss, Legal Advisor
Indian Council of First Nations of Manitoba:
Andrew Kirkness, Grand Chief
Raymond Chartrand, Chief
David Brant, Chief
New Brunswick Aboriginal Peoples Council:
Betty Anne Lavallée, President
Gary Gould, Secretary-Treasurer
Tuesday, March 2, 1999
Indigenous Bar Association:
David Nahwegahbow, President
Don Worme, past President
Helen Semaganis, Secretary-Treasurer
Diane Corbiere, Member
First Nations Accountability Coalition:
Rita Galloway, President (Saskatchewan)
Leona Freed, President (Manitoba)
Tuesday, March 9, 1999
Individual:
Fred Martin, Ackroyd, Piasta, Roth & Day
Alberta Métis Settlements:
Ken Noskey, President of the General Council
Wednesday, March 10, 1999
Individual:
Raoul Mackay, Historian
Tuesday, March 16, 1999
Syncrude Canada Ltd:
Robert Loader, Manager, Aboriginal Affairs
Beverley Davies, Co-ordinator, Aboriginal Development Program
Wednesday, March 17, 1999
Ontario Federation of Friendship Centres:
Vera Pawis-Tabobondung, President
Tim Thompson, Executive Director
National Association of Friendship Centres:
Wayne Helgason, President
Marc Maracle, Executive Director
Stacy Hill, Youth Representative, Vice-President, Aboriginal Youth
Council
Rod MacDonald, President, Law Commission of Canada
Wednesday, March 24, 1999
Akwesasne Reserve:
Mike Mitchell, Grand Chief
Peter Garrow, Director of Education
Micha Menczer, Legal Counsel, Mohawk Council
Vaughn Phillips, Chief
Raymond Mitchell, Police Portfolio
Lucy Papineau, Director of Health
Wednesday, March 24, 1999 (continued)
Kahnawake Reserve:
Russell Roundpoint, Intergovernmental Liaison Officer
Tuesday, April 13, 1999
Assembly of Manitoba Chiefs:
Grand Chief Rod Bushie
Chief Michael Lawrenchuk
Chief Harvey Nepinak
Métis Nation of Alberta:
Audrey Poitras, President
Lorne Gladue, Director of Federal-Provincial Initiatives
Bruce Gladue, Research and Development Advisor
Individual:
Dr. Mark Dockstator
Pauktuutit:
Veronica Dewar, President
Tracy O'Hearn, Executive Director
Tuesday, April 20, 1999:
Provincial Court of Saskatchewan:
The Honourable Judge Linton J. Smith
Aboriginal Council of Winnipeg:
John Graham (Institute on Governance)
Erica Ballentyne
Naomi Handel
Wednesday, April 21, 1999
Paul Chartrand Consulting Services:
Paul Chartrand
Wednesday, April 28, 1999
Laurentian University:
Professor Herb Nabigon
Department of Foreign Affairs and International Trade:
Ambassador Mary Simon, Circumpolar Affairs
Tuesday, May 4, 1999:
Inuvialuit Regional Corporation:
Nellie J. Cournoyea, Chair and CEO
Richard Nerysoo, President, Gwich'in Tribal Council
Bob Simpson, Chief Negotiator, Beaufort/Delta Self Government
(negotiating) Office
Charles Hunter, Legal Advisor
Federation of Saskatchewan Indian Nations:
Grand Chief Perry Bellegarde
Chief Tom Littlespruce
Chief Delbert Wapass
Chief Miller Nawakayas
Wednesday, June 2, 1999
Conseil de la Nation Atikamekw:
Ernest Awashish, President
Marc Dubé, Chief Negotiator
Mohawk Council of Kahnawake:
Grand Chief Joseph "Tokwiro" Norton
Frank Vieni, Federal Negotiator
Arnold Goodleaf, Director, Intergovernmental Relations Team (IRT)
1- In this report the Committee uses the phrase "treaties and agreements" to encompass a variety of historical and contemporary relationships and instruments of agreement between Aboriginal Peoples and governments. These include treaties, self-government agreements, comprehensive land claim settlements and accords. 2- Native Council of Prince Edward Island, Brief January1999, p. 3. 3- See, for example, briefs from the New Brunswick Aboriginal Peoples Council, February 16, 1999 and the Native Council of Canada (Alberta), February 9, 1999. 4- RCAP Report, Volume 2, p. 182.
5- NAFC-LCC Urban Aboriginal Governance: Re-Fashioning the Dialogue Focus Paper, February 1998, p. 14. This paper was tabled with the Committee during a joint presentation by the authors on March 17, 1999.
6- Ibid., p. 28.
7- The Federal Interlocutor for Métis and Non-Status Indians is a Cabinet minister designated to act as a point of contact for Métis and Non-Status Indian groups, as an advocate within Cabinet for Métis and Non-Status Indians and as Minister responsible for the federal government’s participation in tripartite self-government negotiations. The position was established by Order-in-Council in 1985. The Federal Interlocutor receives limited funding and thus has limited ability to assist Metis initiatives in the area of self-government and self-determination. The current incumbent is the Honourable Ralph Goodale, Minister of Natural Resources and Minister responsible for the Canadian Wheat Board. 8- Roger Obonsawin, The O.I. Group of Companies, Brief, February 3, 1999, p. 2. 9- Cree Naskapi Commission, 1998 Report of the Cree-Naskapi Commission, 1998, pp. 4-6. 10- Auditor General of Canada, Report of the Auditor General of Canada to the House of Commons, Chapter 14, Indian and Northern Affairs Canada -- Comprehensive Land Claims, September 1998, at 14.3 and 14.71. 11- Cree Naskapi Commission, Proposal for an Aboriginal Treaty Implementation Act, March 1, 1999, p.12. 12- House of Commons, Special Committee on Indian Self Government, Indian Self-Government in Canada, Report of the Special Committee on Indian Self-Government, 1983, p. 60, (hereafter cited as the Penner Report by which it became known after its Chair Keith Penner). 13- RCAP recommendations included dismantling the Department of Indian Affairs and Northern Development and creating two new departments: one, a Department of Aboriginal Relations to discharge responsibilities pertaining to the negotiation and implementation of treaties, self-government, claims and related agreements, and the second, a Department of Indian and Inuit Services to manage residual relationships based on the Indian Act, other federal legislation and program and service delivery arrangements. Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples Volume 2: Restructuring the Relationship, 1996, pp. 354-355 and 364, (hereafter cited as the RCAP Report). 14- Indigenous Bar Association, Brief, p. 3. 15- Inuvialuit Regional Corporation and Gwich'in Tribal Council, Brief, p. 4. 16- Mamuitun Tribal Council, Brief, February 1999, p. 7. 17- Indigenous Bar Association, Brief, pp. 8-9. As discussed by the IBA, this structure would operate in respect of Aboriginal peoples and rights in a manner similar to federal and provincial Attorneys General. Such a structure would also potentially serve to correct problems arising from the perceived conflict of interest inherent in the Crown’s responsibility to discharge its fiduciary obligations towards Aboriginal peoples while at the same time upholding the public interest on behalf of all Canadians. 18- Judge Linton Smith, Brief, April 20, 1999, p. 4. 19- The Committee also made recommendations for an independent secretariat to facilitate and provide a neutral forum for conducting negotiations, an advocacy office to represent First Nation interests in legal disputes affecting their rights, and a specialized tribunal to decide disputes in relation to agreements between First Nations and governments. Penner Report, pp. 62, 67, 124-125.20- As suggested by RCAP, Treaty Commissions would facilitate negotiations, engage in ‘fact-finding’ activities, offer binding and non-binding dispute resolution.
21- RCAP Report, Recommendations 2.2.15-16 and 5.1.2.
22- As envisioned by the Royal Commission, the Tribunal would be able to issue binding orders and decisions, and provide appropriate remedies in respect of treaty-making, implementation and renewal processes, as well as the settlement of specific claims. RCAP Report, Volume 2, pp. 602-603.
23- See Miguel Alfonso Martinez, Final Report: Study on Treaties, Agreements and other Constructive Arrangements between the States and Indigenous Populations. n.d., at p.69.
24- NAFC and LCC, Re-Fashioning the Dialogue, February 1998, p. 5. 25- The Accord includes an agreement between the Metis and Alberta government and provides for four implementation statutes: The Metis Settlements Act, the Metis Settlements Land Protection Act, the Metis Settlements Accord Implementation Act, and the Constitution of Alberta Amendment Act. 26- The eight settlements comprise approximately 1.25 million acres of land. 27- NAFC-LCC, Re-Fashioning the Dialogue. This paper draws on existing literature, including the report of the Royal Commission on Aboriginal Peoples. 28- Mamuitun Tribal Council, Brief, February 1999, p. 8. 29- See for example, Sol Sanderson, Issue No. 19, February 9, 1999 and Harold Calla, Issue No. 16, December 2, 1998. 30- Indigenous Bar Association, Brief, March 2, 1999. 31- RCAP Report, Volume 2, p. 331. 32- Gathering Strength, p.15. 33- Department of Indian Affairs and Northern Development, Plans and Priorities, 1999-2000. 34- NAFC and LCC: Re-Fashioning the Dialogue, pp. 28 - 29.