Proceedings of the Standing Senate Committee on Aboriginal Peoples
Issue 21 - Evidence for the morning meeting
OTTAWA, Tuesday, March 2, 1999
The Standing Senate Committee on Aboriginal Peoples met this day at 9:07 a.m. to examine and report upon aboriginal self-government.
Senator Charlie Watt (Chairman) in the Chair.
[English]
The Chairman: Our first witnesses are from the Indigenous Bar Association. Please proceed.
Mr. David Nahwegahbow, President, Indigenous Bar Association: Good morning. Attending today with me are Mr. Don Worme, past president of the Indigenous Bar Association; Ms Helen Semaganis, present Secretary Treasurer of the Indigenous Bar Association, and Ms Diane Corbiere, a very active member of the Indigenous Bar Association.
Honourable senators, thank you for providing the Indigenous Bar Association, the IBA, the opportunity to make this presentation. Our organization was formed in 1989. As the name suggests, we are an organization made up of indigenous lawyers from across Canada. Our membership includes Inuit, First Nation, and Métis people.
The objectives of our organization, as stated in our constitution, are as follows: to recognize and respect the spiritual basis of our indigenous laws, customs, and traditions; to promote the advancement of legal and social justice for indigenous peoples in Canada; to promote the reform of policies and laws affecting indigenous peoples in Canada; and to foster public awareness within the legal community, the indigenous community, and the general public in respect of legal and social issues of concern to indigenous peoples in Canada. Our principal objectives are to promote aboriginal customary law, public legal education, and law reform and social justice for indigenous peoples.
We do not intend in this submission to concentrate on all of the subjects which you have listed in your discussion paper, as that is quite a wide range of areas. We hope to focus on the following four items: fundamental principles, accountability and capacity building, sustainability, and what we propose as a section 35 attorney general to enforce the fiduciary obligations of the Crown.
Starting with fundamental principles, the first and foremost concern of the IBA with regard to aboriginal governance is the lack of recognition of the right of aboriginal peoples to self-determination and the lack of juridical recognition of the inherent right of aboriginal self-government. This translates, in our view, into failure of self-government negotiations because of insufficient clout on the part of the aboriginal peoples and the lack of sufficient incentive on the part of both federal and provincial governments to negotiate fair and meaningful self-government agreements. Until governments stop denying the existence of these rights, very little progress will be made. It is important for your committee to comment on this subject, because we believe it is central, so please allow us to elaborate on it briefly.
The RCAP report recognized two separate and distinct bases for self-government. It recognized that aboriginal peoples have the right of self-determination based on principles of international law. The RCAP report also recognized that aboriginal peoples possess an inherent right of self-government based on common-law doctrines. While indigenous peoples in Canada have consistently maintained that they possess the right of self-determination, governments have steadfastly refused to recognize this right.
The present government issued a policy entitled: "Aboriginal Self-Government: The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government." I am sure this document is familiar to honourable senators. It purports to recognize the inherent right of self-government. However, there are some serious problems with the document.
First, it is only a policy. It is open to interpretation and can easily be changed. It is not binding in law. Our organization believes that the right of self-government must be recognized in law.
Second, although the federal inherent rights 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. What Department of Justice lawyers say and what negotiators rely upon is that the inherent right is recognized in principle; however, they deny that specific aboriginal groups with whom the federal government is negotiating possess the inherent right of self-government. Aboriginal peoples are told to go to court if they want specific recognition that they possess an aboriginal right to self-government.
We recommend that you urge the federal government to unequivocally recognize the right of self-determination and the inherent right of self-government of aboriginal peoples as recommended in the RCAP report.
However, it should be noted that, although we agree with the general principle of recognition in the RCAP report, we do not necessarily agree with all the findings made by RCAP on the definition and scope on the inherent right of self-government. Specifically, we question, as a matter of domestic law and international law, the notion that only aboriginal nations of sufficient size and other characteristics as defined by RCAP possess the right of self-government.
The common-law basis for aboriginal rights focuses on the culture and the customary legal system of the aboriginal people in question. Logically, then, one must look to the historical evidence and practices of the particular aboriginal people in order to determine where the sovereignty or right of self-government of that people resides.
Different indigenous nations have different laws, customs, and practices on this matter. For example, for many Indians in British Columbia, sovereignty resides, primarily, at the nation level. Accordingly, the committee will have noticed that when Indians in B.C. use the term "First Nation," they generally tend 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, which is my nation, 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 practises of the Anishnabek people. The Anishnabek considered the local band or tribe as the level of social organization where residual aspects of sovereignty resided, except for those areas specifically allocated to the nation level.
Without the facts, it is inappropriate to conclude that only the aboriginal nation possesses the right of self-government. Some members within the international law section of our organization have questioned the criteria in RCAP for recognizing whether an aboriginal people possesses the right of self-determination and self-government.
To continue with the issue of aboriginal nations, international law recognizes that entering into treaties recognizes the existence of an international personality. It has been recognized in the UN treaty study undertaken by Mr. Martinez, a copy of which has been deposited with this committee, that Indian treaties are international treaties.
By and large in Canada, many of the numbered treaties and other signed treaties were signed by chiefs and headmen of bands rather than centralized nations. It follows, therefore, that a significant level of political sovereignty resided at that level.
Members within our international law section and our organization urge this committee to look at emerging international standards in this regard rather than to be constrained in this matter by the findings of RCAP.
We would refer the committee to the attached "Nuuk Conclusions and Recommendations on Indigenous Autonomy and Self-Government." Those are attached to our submission. They were adopted by the UN committee of experts representing state governments in a meeting in Nuuk, Greenland in September, 1991. The committee will also know there is a draft declaration on the rights of indigenous peoples.
The next subject we would like to touch on is accountability and capacity building. On accountability, we share the view of the royal commission that the colonial experience and its legacy have negatively affected aboriginal governments. The once sovereign and completely independent aboriginal governments have become dependent and marginalized first by European and then by Canadian and provincial governments. The only way to redress this is to ensure that there is true legal recognition of the right of self-government.
Moreover, governments in Canada should facilitate the rebuilding of the capacity of aboriginal peoples to govern themselves in ways that are appropriate to their respective cultures. As self-governing peoples, they will be able to institute their traditional governing structures in a paradigm that is recognizable to the citizens that they are there to serve, and to which they ought to be accountable. Issues of accountability and transparency are not foreign concepts to aboriginal peoples. However, the manner in which resources have been provided to aboriginal peoples to date does not realistically reflect the needs or values of aboriginal nations. As such, the tremendous responsibilities for services with limited means often creates an unmanageable burden within which accountability can be compromised.
We have seen examples of that. Determining true accountability of aboriginal nations requires a genuine partnership with governments in Canada, especially the federal government, one that acknowledges and respects the unique position, cultures and histories of aboriginal people. It should also recognize that, as a consequence of deliberate and oppressive federal policies, the needs in aboriginal communities are immense.
Concurrent with the discussion of accountability, aboriginal peoples must accelerate the capacity building which has been ongoing within our nations in the recent past in a manner which is culturally appropriate. Measures to ensure accountability and accelerated capacity building can take place through the establishment of the aboriginal government transition centre that was recommended by the royal commission. We, the Indigenous Bar Association, believe it is our obligation to ensure that this recommendation is implemented and that we play a significant role in its implementation, in light of our aboriginal perspective and expertise in law and governance issues.
The next subject is sustainability. The first subheading under this subject is "Barriers to Achieving Fiscal Autonomy Under the Indian Act Regime". Achieving self-government is an evolving process. For a variety of reasons, many aboriginal peoples may not be in a position to enter into comprehensive self-government agreements in the near future. For example, the Indian Act continues to place barriers for First Nations to become fiscally independent. Irrespective of specific self-government efforts, there is a need to remove barriers for First Nations to govern using capital based on the assets they have. Legislation which removes these impediments, which is developed in full consultation and cooperation with First Nations -- and I want to emphasize "full consultation and cooperation" -- is a step in the right direction. To the extent it promotes certainty and protection to investors, it will allow First Nations to generate capital to enhance government programs and services.
The second subheading under this subject is: "New Fiscal Arrangements under Self-Government Agreements." Financing aboriginal governments requires new fiscal relations and funding mechanisms to respond to the new jurisdictional arrangements undertaken by the various parties to self-government agreements. Discussions will need to be undertaken to determine how money is to be transferred to aboriginal governments, and by which governments, federal or provincial. We recommend that a fiscal relations table be established at the national level.
The third subheading is: "Resource Revenue Options." Two areas need to be addressed under this heading. The first is to recognize that aboriginal peoples have a right to an equitable redistribution of lands and resources within their traditional territories. This means that aboriginal governments would have an equitable share in economic opportunities that arise in the exploitation of natural resources from their lands. This could be in the form of royalties or a share of property taxes generated from traditional territories.
Again, I should like to underline this particular aspect of our submission because we are very concerned about the perception in the general public that aboriginal peoples are continuing to receive hand-outs all the time, when they have a legitimate interest in a vast amount of resources which have contributed significantly to the development of this country. All that aboriginal peoples are looking for is a fair redistribution of those resources.
Another source of revenues that should be explored are bonds and securities. Aboriginal governments should also have the same powers as other governments to issue bonds and securities to generate capital for their projects.
The fourth subheading is: "Achieving Fiscal Equality." It must be remembered that not all aboriginal governments will have the capacity to generate sufficient funds from their own sources. They may not have adequate resources to draw from. These governments need to be assured of accessing sufficient transfer funds so they can provide programs and services on a basis equal to their neighbours. This transfer of funds must be in the nature of block funding. This is more consistent with respect for the autonomy of aboriginal governments. Conditional funding or specific target funding would continue the paternalism which has heretofore straitjacketed aboriginal peoples.
The final section of our submission is called: "Section 35 Attorney General -- Meeting Fiduciary Obligations." We note that one of the questions posed by this committee is the following:
Many aboriginal groups have expressed concerns about the erosion of their special relationship with the Crown. How can the joint goals of implementing self-government while maintaining this special relationship be best achieved?
The question undoubtedly refers to fiduciary obligations of the Crown. In order to properly appreciate its implications, you need to know the origin of the fiduciary relationship. Aboriginal peoples have always talked about the trust responsibility of the Crown. It has been understood as a political concept. More recently, since the decisions of the Supreme Court of Canada in Guerin, Sparrow and Delgamuukw, we now understand it to be a legal concept which creates binding legal obligations. Fiduciary obligations arise from the nature of aboriginal rights and aboriginal title which includes a restriction on the ability of aboriginal peoples to surrender their rights or title to anyone but the Crown. This limitation was originally intended to benefit and protect Indian interests in land. It evolved historically through early executive and legislative acts, including the Royal Proclamation of 1763. The law recognizes that it places such extreme power in the hands of the Crown vis-à-vis aboriginal peoples and their rights, that it placed a corresponding legal duty on the Crown to act in the best interests of aboriginal people.
How does this relate to issues of governance? Aboriginal rights includes a range of rights from aboriginal title, to harvesting rights, to potentially the aboriginal right of self-government, an issue which has been before the Supreme Court of Canada but which has yet not been ruled on. Indeed, as we noted above, the present government recognizes that the inherent right of self- government is an existing right which is protected under section 35. Therefore, the Crown has a duty to protect not just land-related aboriginal rights, but also self-government rights of aboriginal peoples. The concerns which aboriginal people have about the Crown relinquishing its fiduciary duty through negotiating self-government, comes from the historic failure of the Crown to live up to its trust responsibility.
In other words, from past experience, aboriginal people do not trust the Crown to act in their best interest. Of course, this lack of trust is exacerbated by fears of off-loading in times of fiscal restraint. In our submission, you need to solve the lack of trust through structural reforms which aim to protect and maintain the fiduciary obligations of the Crown while, at the same time, allowing aboriginal governments to grow and flourish. Connected with the problem of distrust is the constitutional conflict of interest which has always existed and continues to exist on the part of the federal Crown and its Department of Justice in fulfilling the dual roles of protecting aboriginal and treaty rights and the rights and interests of Canadians generally -- referred to in jurisprudence as the "public interest". Historically, aboriginal peoples have been losers in this conflict of interest because political interests have always favoured the majority.
The structural reform we are recommending to protect and maintain the fiduciary obligations of the Crown must, at the same time, address the issue of conflict of interest. As such, the Indigenous Bar Association recommends an attorney general to protect section 35 rights who would operate in the same way as the federal and provincial attorneys general now do in protecting federal and provincial laws and Charter-based rights.
The main function of the Attorney General would be to safeguard aboriginal and treaty rights from governments or other adverse interests. A related function might be to correct deficiencies in the justice system, an objective that has eluded federal and provincial legislators to date, despite the fact there have been numerous inquiries on this subject. The administration of justice is an important governance function to which RCAP devoted a separate report entitled, "Bridging the Cultural Divide."
First Nations, Inuit and Métis will be assuming even greater control over their territory and government. Self-government agreements that underlie this assumption of control will be scrutinized in the present legal system. Several agreements have already proven to be disastrous for aboriginal peoples and, as such, vigorous constitutional protection is called for in the same fashion as that afforded to Charter rights and federal and provincial legislation under sections 91 and 92 of the Constitution Act, 1867.
In conclusion, the Indigenous Bar Association is trying to ensure that the recommendations of the RCAP report are given serious consideration. The IBA appreciates the efforts of this committee and of the honourable senators involved in bringing that about.
We are working with the Law Society of Upper Canada, the Canadian Bar Association and the Law Commission of Canada to convene a conference to follow up on the RCAP recommendations. This is specifically in response to recommendation 13 of the RCAP report which calls upon the legal community in Canada to convene a conference on the matters which are addressed in the report.
A conference is scheduled to take place at Osgoode Hall, in Toronto, on April 22, 23 and 24, to address the legal aspects of the RCAP report. However, we will not limit our field of reference to the recommendations of the report. If any of the member of this committee is interested, you would be more than welcome to attend that conference. I have with me some of the conference materials, including the conference poster and a conference program brochure.
That concludes our submission and I appreciate the opportunity to address you.
Senator St. Germain: I have two questions. First, you say you need to solve the lack of trust through structural reform to maintain and protect the fiduciary obligations of the Crown while, at the same time, allowing aboriginal governments to grow.
In the case of the Nisga'a agreement, and correct me if I am wrong, sir, my understanding is that they will gain access to their properties. If the fiduciary responsibility flows through the control of the land base of aboriginal peoples, we have a situation with the Nisga'a where they will be given fee simple control of this land where they can encumber it and they can act on it.
In essence, the Nisga'a will become a nation, as they describe themselves, or an entity, which basically removes them from the fiduciary relationship that existed under common law and places them in the same situation as any other entity in the country. Could you explain this apparent discrepancy?
Mr. Nahwegahbow: I have not had the benefit of studying the Nisga'a agreement in detail. I really would prefer to refer to the specific terms of the Nisga'a agreement.
If you are saying that the Nisga'a have completely given up any fiduciary obligation by entering into that agreement, I am not sure that that has taken place.
Senator St. Germain: I am asking you for your interpretation. I am not a lawyer, but that is my understanding. They will be given title to this land. It will no longer be Crown property. The Nisga'a nation will hold it in fee simple. They can encumber it; they can sell it; they can do whatever they want with it.
Everyone is subject to the constitution which they drafted as a result of the self-government agreement.
However, if the fiduciary responsibility of the Crown flows from the fact that they have control of the lands for the benefit of aboriginal peoples, does the fiduciary responsibility remain intact? If so, how? That is my question. Maybe it is not a fair question to ask of you.
Mr. Nahwegahbow: My response is that it depends on the terms of the treaty. If the Nisga'a have specifically relinquished, given up or waived any fiduciary obligations on the part of the Crown, then I would say that it may not exist.
I do not think that necessarily precludes the coexistence of an ongoing fiduciary obligation with self-government arrangements, including, potentially, fee simple, absolute ownership interest in lands, if it is one of the elements of the treaty. Does that answer your question?
Senator St. Germain: I know this is a complicated area. I am not trying to trap you. I am seeking clarification.
Being from British Columbia, I know this subject is of great interest to all British Columbians. My main concern is that many British Columbians and Canadians believe that self-government removes that particular native community from any future obligation on behalf of the Crown, the governments, and the people of Canada. That belief is a misconception to a vast degree because, from what I have heard in these hearings, most aboriginal groups still see that fiduciary responsibility remaining intact, even though a self-government process is put in place.
As we write our report, we will seek to resolve this misunderstanding. Our report will be critical to our native people. It is also important that we not create a negative backlash from the rest of our citizenry.
Mr. Nahwegahbow: Mr. Chairman, this matter is probably on the table. If a First Nation group or other group decides to waive it specifically, then so be it. However, the ongoing existence of the fiduciary obligation is not diminished or eradicated by self-government agreements. That is my point.
In principle, those two concepts are not mutually exclusive. They do affect one another, but they are not mutually exclusive.
Mr. Don Worme, Past President, Indigenous Bar Association: Thank you, Senator St. Germain, for that observation. Those are indeed critical questions.
It can also be said, however, that this underscores the fact that, in this country, aboriginal people, and First Nations particularly, are not a homogeneous group. The views of First Nations people in British Columbia will not necessarily coincide with the views of First Nations people in Quebec or Saskatchewan. In the same fashion, the view of "white people" in Europe are not necessarily homogeneous either. This fact must be understood when you look at the individual agreements that are being reached across the country.
In my limited understanding of the Nisga'a agreement, it does set out a number of different categories of land in a similar fashion to the Cree, Naskapi and James Bay agreements in northern Quebec. Accordingly, there may well be some reduction of a fiduciary responsibility, depending upon, in your observation, the kinds of control that are effectively held by the First Nation signatories to those agreements.
However, there are several other points to consider. First, there is a different way of looking at these issues among the different aboriginal people in this country. Second, it is not necessarily inconsistent with a fiduciary responsibility remaining and the kind of control that is exercised with respect to certain lands, some being revenue-generating and others being jointly held.
I do not know if that assists, senator.
Senator St. Germain: The greatest dilemma that we have, and I am sure that the royal commission had as well, is to come up with recommendations that are universal when dealing with totally different communities. They are not homogeneous, as you say. As we try to arrive at recommendations regarding self-governance for our aboriginal peoples, we find that they are so dramatically different. When you compare the Haida in British Columbia and the Inuit in the North, you find that there are vast differences between these people and their needs. There are 600 different bands with 600 different needs.
Senator Pearson: My question deals with globalization and the time frame involved in some of the issues you mentioned. I have a "good news, bad news" scenario about which I would like your impressions.
We are now at the end of an exponential century. At the beginning of this century, the world population was 1.6 billion, and it is now 6 billion. Canada's population now is 0.5 per cent of the entire world population. We are in an imbalance situation because our land mass is huge compared to our population.
This is important when we talk about sustainability. We have moved from lands and resources as being the driving force of our economy, to a capital base of money bonds, securities and so on. We are now moving to a knowledge-based, global economy. I do not think it is possible for anyone in the entire world to live outside the global economy.
The good news is that, if you have a knowledge-based economy for developing your capacity, then aboriginal groups have just as much capital to inject or use as any other group. The bad news is that, if you depend on lands and resources, or are looking at sustainability there, it will not be enough, as those who have tried to make their living out of fishing well know.
In your dissertation on sustainability, I heard no mention of the tremendous importance of investing in the education of your young people.
Mr. Nahwegahbow: Simply because it might not be in our report does not indicate or suggest that it is not important. Our volunteers had a limited time to prepare this submission. Education, of course, is very important. As individuals, we would not be in this room without education, and that is understood. However, this is not our principle area of expertise.
On the issue of lands and resources, I would suggest that perhaps, like the overemphasis on lands and resources, there may be some weakness in a theory based on globalization and the importance of knowledge. Consider the recent experience in Japan, where they had all kinds of knowledge but little resources. There were some fairly severe economic crises in that country.
I do not think we can get away from the fact that we have limited resources upon which we can live as indigenous peoples. I have always heard, in all communities where I have been, that knowledge is important, that education is important, but that land is vital. If you do not have the land, you do not have the resources and you cannot exist.
Mr. Worme: Senator Pearson, I think your comments on sustainability are accurate. The statistical information that you provide is also important because it reflects, in part, the circumstances in the region I come from, Saskatchewan. Recent studies of our populations in Saskatchewan would clearly indicate that our population is growing at a rate of 33 per cent per annum. I am told as well -- and I am not absolutely certain about this and that, within 25 years, the aboriginal people in Saskatchewan shall constitute 50 per cent of the population of the province. Accordingly, reliance upon a limited land and resource base is likely not sustainable within the kind of time frame you were talking about.
However, there is a requirement in the immediate future to rely upon a fair distribution of the wealth that is generated from the lands and resources, say, in Saskatchewan, for example, for several reasons. The capacity to move towards a knowledge-based economy or towards information technology and so forth is simply not there at the present time. Great strides must be made to educate the large number of young, aboriginal people who are coming up through our ranks. Should that not happen, those that would choose to present these statistics in a more critical way, I think, may well be right.
There has been some suggestion of fear-mongering: that, if we do not take care of these problems, then we shall leave an unhappy legacy for our children to deal with. That is not our position here today. Our position is that these are factual statistics, and there is an immediate requirement to try to resolve some of the imbalances in income at this particular stage to ensure that young people, particularly, have a reasonable opportunity to access the kind of knowledge-based economy to which you refer.
Senator Gill: You mentioned that it is inappropriate to conclude anything without considering the fact that only the aboriginal nations possess the right of self-government. That means you are questioning the royal commission report. Is there a definition of "nation" in this report?
Mr. Nahwegahbow: There are some definitions, although I think this area of the report is weak. I think the terminology used is that the nation is of sufficient size, but then there are exceptions. For example, they talk about the Huron in Quebec. There is only one community there. Then they mention nations which straddle borders and about a cohesion along treaty lines. From a legal standpoint, therefore, this area of the report is weak. What the commissioners were attempting to come up with was an answer to the arguments or the criticisms that there will be 600 independent, self-governing communities, or independent nations. They did not feel that this would be palatable publicly.
If that is the case, then call a spade a spade. It is a political issue. However, from a legal standpoint, one must look at the historical facts and evidence pertaining to each of those situations.
Senator Gill: The Department of Indian Affairs and Northern Development has always dealt with Indian people on a band basis. Many people would have recommended that Indian Affairs deal with them on a nation basis, but legally speaking, they have never done that. That means the report probably means that the department wants to deal with them on a band basis. However, dealing with the bands at the band level does not exclude a regrouping of the nation. For example, my nation, the Montagnais, usually deals with people on a band basis, but they are ready to deal on a nation basis. The Indian Act does not exclude -- it does not state that we cannot deal with people on a band basis.
Mr. Nahwegahbow: I agree with you, Senator Gill, on that point.
We take issue with a finding in the report that sovereignty or the right of self-government resides only at that one level, when it may be inconsistent with the history and the evidence of that people. That does not rule out that, in the future, the Montagnais, for example, may want to deal exclusively at that nation level because it makes political sense. However, it is quite another thing to say that this principle or rule should be adopted.
Senator Wilson: You commented on self-determination, as understood by the federal government, as a policy objective and not a right. That understanding has applied not only to aboriginal peoples, but also to the dominant society as a whole.
Illustrative of that, last November when the International Covenant on Economic, Social and Cultural Rights was reviewed in Geneva, a number of NGOs went along to supplement the government's report to the Human Rights Committee. There were anti-poverty groups and women's groups who stated that these things were not considered a right, but only a policy objective. As a result, Canada did not get a very good report card from the Human Rights Committee.
The International Covenant on Civil and Political Rights is coming up for review in March 1999. What will be your approach? How will you respond? Do you plan to appear before the human rights committee? Is there a possibility of you appearing with other groups, such as women's groups and poverty groups from the dominant society, in order to press those matters as a right in international law, not simply as a policy objective?
Mr. Nahwegahbow: We would like to attend. However, we are a small volunteer organization lacking in resources. We try to do what we can to make interventions.
Some members of our organization are very active in the international area. I am thinking of Mr. J. Wilton Littlechild from Hobbema. We would be looking to the leadership of Mr. Littlechild and others within our organization. I will raise this matter with Mr. Littlechild.
Senator Wilson: Do you think there is any point in taking that tack, among many other approaches?
Mr. Nahwegahbow: I do not think we should be limited, as indigenous peoples, to domestic alternatives. Clearly, Canada is very responsive and conscious of deliberations that go on outside the country and very sensitive to those debates.
We must also understand that indigenous rights are emerging as an international issue. We are in the decade of the rights of indigenous peoples. I would urge the members of our organization to make those initiatives outside the country, where necessary, in an effort to have our rights recognized legally within Canada.
Senator Andreychuk: I have a followup to Senator Gill's question. I believe the royal commission struggled with how to focus the negotiations. They came to the third level and pointed out how groupings might focus some of this debate. You seem to disagree with that.
One of our problems with self-government is that each group who has appeared before this committee has said something different, which is natural. However, some have said that those who are recognized under reserves, but who have left the reserve, do not want the leadership of the reserve to speak for them. Then there are the groups who do not qualify under the Indian Act and who want some form of government.
I thought the royal commission did an admirable job of trying to bridge all of those points of view across the non-aboriginal community and within the aboriginal community, because the complexities are great on both sides. If one does not support the process, as they pointed out, one needs at least a significant mass of people coming together in order for the federal government to deal with them. What would be your alternative?
Mr. Nahwegahbow: I did not say that we did not support the processes. We take issue, rather, with the notion that nations are where sovereignty or the right of self-government resides as a fundamental principle of the report.
As this committee has no doubt heard, there are diverse groups who need their own unique solutions to implement meaningful self-government for their group. The Métis are different. Urban aboriginal people are very different. First Nations or Indian nations across the country are different. The Inuit people are different from everyone else as well. We need to be open about solutions.
The problem that I have is trying to pigeon-hole all First Nations people into this concept of nation, when historically and legally that is not correct. It might be politically correct, and it might be the most economical and convenient way of organizing the self-governments of First Nations in the future, however, they could have drawn that distinction better.
Senator Andreychuk: If you do not accept their concept, what is the alternative? I fully understand what you are trying to say -- that everyone does not fit. That is equally true about our society globally. Many people do not fit in the niches we are put in, but to organize ourselves we must accept some concepts, work with those first, and then see how those who do not fit can be accommodated.
If we are to be helpful to the aboriginal community and helpful to the federal government in anything we may recommend, how would you go about that task? As I understood the royal commission, they suggested that we start with "nations," fully understanding that for every rule there are exceptions, as you well know, but at least they set out a rule and a principle and a guideline that they hoped the federal government would take seriously.
If you do not agree with that principle, how can you assist us in a recommendation that will move these concepts ahead rather than prolong our discussion of them?
Mr. Nahwegahbow: We are recommending that the government unequivocally recognize the right of self-government. That right is not necessarily possessed only by nations. They must recognize that. Then it is a question of facts and evidence to determine where it historically resided. If the culture and the customary legal system of that particular group, whether it is a nation, a band or a tribe, resided at a more local level, then I believe we must respect that. The Canadian government has been too accustomed to implementing what it believes is most appropriate rather than looking at what is most suitable to the people. If what is more appropriate or suitable or consistent with the culture of a people is that they are more of a global nation, then that is probably right for those people.
The problem with the principle is that certain Indian bands are more accustomed to operating at a local level and do not fall within this category. For example, the Nishnawbe people, who are located right across the country from Ontario to the upper U.S. states, around the Great Lakes, cannot fit into that pigeon-hole. Their history is different. It tends to delay the implementation of self-government because the governments will then say that sovereignty resides at the nation level, therefore, we must come back when we are all together. That is the difficulty.
Senator Andreychuk: However, without that approach, you run the risk that a group will come to the federal government to negotiate, and this could be over a number of years, and then a splinter group of that group will not agree. Must the federal government then restart all negotiations? That is another conundrum we are facing. Must the federal government deal with the minority group who say that the larger group does not speak for them and that they wish to be treated differently and separately?
Mr. Worme: I am not sure what the legal basis for your hypothesis would be, but that would be informative in terms of whatever response should be made. What you are talk about is constantly being experienced in the global community. This morning I read an article in the newspaper about Kosovo. I recognize that, at some point in time, the community of nations had dealt with Kosovo as a singular nation. Yet, today, there are groups emerging who say that the larger group does not speak for them, that they are a separate nation. I recognize that is something we obviously must deal with.
Underlying all of this is the need to develop a degree of trust between government and aboriginal groups who are coming forward, and to determine the legal basis for their representation. I am not suggesting that a group simply coming forward and saying that they represent all of these Indians will be sufficient. Conventions and protocols have been established and followed in many aboriginal communities. I would speak on behalf of at least those Indians in Treaty 4 who have followed a protocol where our leaders have been appointed and had a political sovereignty, in order, for example, to sign a treaty. Those kinds of issues will be addressed.
I would finish by simply saying that many of these issues will not be resolvable. A number of groups will come here and indicate that they are not represented by whatever political representation exists in their region or in their community. However, those are the kinds of issues that must be resolved within aboriginal communities. Some assistance, technical, legal, and so forth, can be offered through our group, and by the aboriginal government transition centre that has been suggested in the royal commission report. That kind of institution would tackle those kinds of complex issues.
Senator Andreychuk: That is helpful. Treaty 4 is a very good example of what we are discussing. There are off-reserve groupings who say their inherent rights are their personal inherent rights and they should not be determined by those who still reside within reserves. We must address the whole urban concept. If you have any light to shed on that, and some recommendations, it would be helpful, particularly since you come from an area where the problem is pronounced.
Can you give me a little more information on the Indigenous Bar Association? How large is it now? I remember when there was no indigenous bar. I also remember when the first aboriginal lawyer graduated and was practising in Western Canada. Do you think that there is more optimism that we can settle these issues now that aboriginal people are represented by well-educated people such as yourselves?
I used to sit and listen to non-aboriginal peoples, like myself, tell me what the aboriginal people wanted and needed. They were agents and hired consultants. It seems to me that more input in those negotiations from the indigenous peoples would be most welcomed.
Mr. Worme: That is the kind of input we hope for.
What we offer as indigenous peoples is a First Nation, Inuit and Métis perspective that is not necessarily shared by our non- aboriginal counterparts. This can be seen in initiatives that we have undertaken with the Canadian Bar Association.
Our membership numbers approximately 600 at this particular point. It was only a numbers of years ago, as Senator Andreychuk observed accurately, that the number of aboriginal lawyers in this country could be counted on the fingers of one hand.
Happily, we are growing in numbers but, proportionately, our number is less than it should be. However, we are growing rapidly. Our organization is over 50 per cent female, and that is also an important observation.
Senator Chalifoux: In the Constitution Act, 1982, it was well established that there are three separate and distinct nations of aboriginal people: The Métis, the Inuit and the First Nations. Within the First Nations there are many other nations of people -- not groups, nations of people.
The RCAP report proposes the establishment and recognition of a governance act. How do you foresee that proposed legislation operating when it addresses issues such as the cultural and historical diversities of the separate nations of aboriginal people within this country? How do you foresee the existing treaties that have been signed with some of the nations being dealt with against the framework of this proposed legislation and the self-government model?
Ms Helen Semaganis, Secretary-Treasurer, Indigenous Bar Association: We gave brief consideration to that particular recommendation. Our major concern, as Mr. Nahwegahbow alluded to in his presentation, relates to principles of nationhood. Perhaps the RCAP report did not go far enough in addressing and recognizing the elements of nationhood that the different nations across Canada define themselves within.
Another critical concern we had was with regard to the fact that there was no recognition of the international principles of nationhood in those recommendations. Those are the most immediate shortfalls of the report that we thought should be addressed immediately.
One thing we must avoid is moving towards another type of federal legislation like the Indian Act. We must keep our minds open to forms of regional-based legislation. In the treaty territory where I am from, treaty-implementation legislation might be more appropriate, rather than a federal act such as this recommendation points towards.
Senator Chalifoux: Where do you foresee the existing treaties fitting within the scope of the self-government regime?
Mr. Worme: In our submission, the existing treaties are stand-alone documents. They are specifically recognized in section 35 of the Constitution.
Additional legislation may be required in order to give treaties the breath of life, as it were. In the United States, treaties are a matter of primary legislation as a matter of course. That is not the case in Canada. It may well be that elaboration is required in order to implement such treaties.
It is important to recognize that treaties are already constitutional documents, that they have been afforded constitutional status pursuant to the section 35 of the Constitution Act, 1982.
Mr. Nahwegahbow: Our international colleagues in the indigenous bar would also want us to make mention of the fact that those treaties ought to be recognized as international and legal instruments. In that way, they recognize that the personalities of the peoples who are making them are international as well.
Senator Chalifoux: Three separate and distinct nations are recognized in the Constitution. How do you foresee the self-government of each nation? Would you want them to be embodied in separate pieces of legislation? I do not see where this subject has been addressed within the RCAP or any other report.
Mr. Nahwegahbow: There needs to be an independent process which can be trusted by First Nations negotiators.
When you are sitting around a table trying to negotiate self-government, there are people on the other side who have strong views about their own interests. I am talking about the Department of Indian Affairs and the Department of Justice. They have pretty strong mandates.
As has been recommended by previous studies, we need some other body outside the Department of Indian Affairs that can be looked upon as a neutral facilitator and/or mediator of some type. A single legislative instrument is a possibility.
Ultimately, agreements respecting individual self-government arrangements, negotiated with individual First Nations, will require some kind of ratification. That might take the form of a treaty framework or legislative instrument of some kind.
We must be open to varieties, and be aware of the differences across the country.
Ms Semaganis: With respect to your question about how treaties play a role in self-government, I would make the supplementary comment that, in Saskatchewan, a process, in which I am involved, is taking place.
Besides being an IBA member, I am also the lead negotiator for the FSIN at the treaty table. The treaties and the relationship that Canada and the First Nations forged 125 years ago form the basis for any self-government negotiations. That treaty table is the "guiding" table that will influence the negotiations that will eventually take place at the governance table or at the fiscal relations table. If we are to go to governance and negotiate child welfare, we will do that respecting and understanding that we have a treaty relationship and a treaty base. That is the way in which we have approached this in Saskatchewan.
The Chairman: I have many questions for you, Mr. Nahwegahbow, but time does not allow us to go into an in-depth discussions on the concerns you have raised.
Many of these concerns are not new to us, especially as they relate to the definition of "nation" and how it will apply. Any legislation enacted by Parliament must flow from section 35 which covers the Indians, the Métis and the Inuit. The question is how that will be done.
The raise key areas of concern. As an aboriginal leader, I have dealt with section 35 and with many issues relating to aboriginal people. We may not share the same concept of nationhood or the definition of nationhood, but we must deal with the system that is in place today. How can we cope with that while, at the same time, maintaining our identity? We want the ability to build upon our identity.
The co-existent concept applies at the local, regional, provincial and national levels. First Nations have a tendency to be more involved at the local level and not so much at the provincial or national levels, even though they do have national and provincial associations. That is something the committee may want to discuss.
Mr. Nahwegahbow, on March 8, we will have a round-table discussion with national leaders and other parties interested in questions of governance. Of course, you can certainly express your opinion through the Assembly of First Nations or any other aboriginal body which you think can address your concerns. However, if we raise the concerns that you have brought forward today with the leaders at the round table, we may move in the direction of finding solutions rather than creating additional problems.
Thank you for your presentation. It was most enlightening. I am sure we will find another way of dealing with your areas of concern and that we will continue to have a good working relationship.
Honourable senators, our next witnesses represent the First Nations Accountability Coalition of Manitoba.
Please proceed
Ms Leona Freed, President (Manitoba), First Nations Accountability Coalition: At the outset, honourable senators, I want to apologize if I offend anyone because the choice of words in our brief is quite strong. However, it comes from the heart and I am speaking on behalf of many band members.
We are a registered organization in Manitoba. We have listened to many people voicing their concerns about the lack of accountability on the part of our chiefs and councils. We have heard many express fear and despair about their future and that of their children if there is no improvement in responsibility. Our children's future is in serious jeopardy.
Today, the First Nations Accountability Coalition represents five provinces. I will speak on behalf of these five provinces -- Manitoba, Ontario, British Columbia, New Brunswick and Alberta.
Ms Galloway will speak on behalf of Saskatchewan.
We share the same concerns and issues regarding self- government. Our aboriginal people in these five provinces are not ready for self-government. In order for a First Nation to be self-sufficient, successful and self-governing, there must be accountability, democracy and equality. These three factors are non-existent. Housing, education, elections, employment, medical and band funds are also non-existent or next to non-existent.
What does exist in the majority of our First Nations is that the chiefs and their families, relatives and friends benefit from nepotism, employment opportunities, education, housing off and on the reserve, properties being purchased off the reserve including some outside of the province, exotic vacations and trips as well as gambling sprees to the United States. We also have self-appointed chiefs, silent chiefs, illiterate chiefs, bought-and-paid-for chiefs and band hereditary/custom chiefs which means "chief for life." In the latter instance, they are not elected. We cannot vote for our leader. The chief and his family make all the rules and there is no democracy.
Our band funds are used for chiefs' and councillors' own personal use with little or no sensitivity to our people's needs at band level. Outright fraud is rampant. Population numbers are inflated in order to claim more federal dollars from the government. The taxpayer is hit twice with the burden of responsibility for the same band members, once when federal dollars are allocated to the First Nation for the band member, and again when these same non-resident band members receive social assistance in the area where they actually reside.
Management or embezzlement of band funds is also rampant in the majority of Canada's First Nations. A Manitoba First Nation received $6 million from the Northern Flood Agreement which mysteriously disappeared within a year. In Winnipeg, chiefs and their families ride around in limousines. If a band member opposes chief and council, services are cut off, they are chased off the reserve, their family members are violently attacked and their pets are murdered. Children are apprehended by the reserve's Child and Family Services, tires are slashed, the contents of the band member's house are destroyed and jobs are terminated or social assistance is cut off. Chief and councillors use abusive authority and intimidation tactics against band members.
In Canada, we have people living in Third World conditions with no democracy or equality. The majority of our First Nations depend solely on federal funds, but there is no accountability administered along with the tax dollars. The Bill C-31 people are hit hardest. They are completely forgotten.
All of our issues have been taken to the Department of Indian Affairs, including the Honourable Jane Stewart's office, but we get no cooperation. Nothing has been accomplished in the way of accountability, democracy or equality. The Department of Indian Affairs condones the criminal activities of chiefs and councils of Canada's First Nations. There has been absolutely no punishment administered to these people.
Madam Stewart talks about disclosure, transparency and redress. These are non-existent. These are only words on paper. She states that only 2 per cent to 3 per cent of chiefs are not accountable for band funds. She is absolutely wrong. Proof of this is found in the five Canadian provinces that I represent here today. It is 2 per cent to 3 per cent of chiefs who are accountable for band funds.
Madam Stewart's implementation of the "Gathering Strength" program is a bunch of -- sorry for the word -- trash. It does not make sense to be wasting 4.6 billion tax dollars on something that is as irrelevant to our aboriginal people as is this bogus program. We desperately need accountability, democracy and equality on our First Nations. We do not need her inaccurate information about the aboriginal people in regards to education, housing and employment.
The Minister of Indian Affairs and all her departments across the nation are the problem. They are part of the corruption. Madam Stewart and her department officials refuse to resolve this very serious problem for fear of being wrong. They will work only with chiefs and councillors and any and all aboriginal leaders. They refuse to listen or work with our people at the band level, which is the grassroots, regardless of the complaints her department gets on embezzlement of band funds.
The First Nations Accountability Coalition of Manitoba does not recognize the Assembly of Manitoba Chiefs. The accountability coalition members in the provinces I represent here today do not recognize the Assembly of First Nations as our aboriginal leaders. We did not vote them in, nor did we have a say in the elections or the voting.
They call themselves "aboriginal leaders" but true aboriginal leaders would not ignore the cries and pleas of their people. A true aboriginal leader would come to the aid of the people in their time of need, and put an end to all the needless suffering. They would not leave their people's future in serious jeopardy. A true aboriginal leader would work with the grassroots people to resolve all of our problems across the nation. A true aboriginal leader would not steal from his own people. Our people are dispossessed, oppressed and exploited. Our culture is one of dependency, powerlessness and despair, with no hope in sight. Our original culture no longer exists.
We need some measure of meaningful empowerment for the average individual. From our limited perspective at this time, we believe that accountability has to be more than an audit for Ottawa bureaucrats. It must include program evaluations which measure benefits to individuals. Accountability means more than accountability by chief and council. It is especially accountability on the part of the federal government towards us as individual registered Indians.
Federal government polices have reduced us, as a people, to one dimension -- the reserve political dimension. In that dimension, we are powerless. All program funds flow through the chief and council down to a dependent people, instead of from the people to their government as in all other democracies of the world. People who have chosen to leave the reserve system have found themselves largely dispossessed of their interests in their reserve lands, in band assets, or in band revenue and capital funds.
Our coalition recommends that treaty money should be raised from $5 to $5,000. That is based upon the average price of an acre of land now, compared to its value in the 1800s. In some of the treaties, the chiefs got $25 and a councillor got $15. If that were raised to $25,000 and $15,000, it would eliminate welfare for all status Indians in Canada. It would eliminate the $100,000 salaries now paid to chief and councillors and, most important of all, the band members would not be at the mercy of the chief and council when self-government comes in, thereby eliminating an increase in suicide, crime, malnutrition and relocation of aboriginals off the reserve -- because that is eventually what will happen.
Our next recommendation is the appointment of a native ombudsman who would activate accountability of band funds on the First Nations; guide and aid band members to self-sufficiency and eventually towards self-government; act as dispute mediator whether it be with the federal or provincial governments, band members or in the community working hand in hand with different government levels; ensure fairness and justice on Canada's First Nations; and file criminal charges against anyone carrying on criminal activities in the First Nations, thereby deterring these types of crimes in the future.
I have added a couple of recommendations. One involves the decentralization of band funds. The system of flowing all federal funds through chiefs and councils must cease. More funds must flow directly to individuals to empower them to take charge of their own lives. Board members or committees can be in charge of various programs, but program funds could not be moved from one program to another as it is now. This is where money is often lost and cannot be accounted for.
First Nations should be subsidized in order to help them become self-sufficient. Revenue brought in should be taken off, dollar for dollar, as in the other democracies. We should be taxed.
With this, we could have a fair and just system and a better chance for justice and freedom as individuals. Without accountability, democracy, and equality, there is no such thing as self-government.
Ms Rita Galloway, President (Saskatchewan), First Nations Accountability Coalition: I am from Pelican Lake First Nation, legal description 191. I have two petitions here from my band members, including their treaty numbers, showing that I may speak on their behalf.
We have been a coalition since 1989. In that time we have had numerous hearings with aboriginal people. We started locally. We have grown to become a provincial organization. We are a non-profit organization. We do advocacy work for the members in our group.
We have three statements today. We have no chief and council sitting in our organization as board members because we are a voice for the grassroots. The complaints of our membership are about chief and council and the way they operate their businesses on the reserve.
When we started, nobody would to listen to our story. We had the documents to prove inconsistency and mismanagement of moneys. We took it to Justice Canada, to the RCMP and to the Department of Indian Affairs. We had no voice at the grassroots level; and nobody would look at our books.
When we came together as an organization we had come in contact with 69 First Nations in Saskatchewan, some having 100 members, and some having 200 members. People in Saskatchewan are claiming that there have been massive frauds. That allegation has been documented. We gave these documents to the media because when we took them to the Department of Indian Affairs or to the RCMP, we were told that this was a problem for the chief and council.
We have no process whereby our complaints are addressed and rectified.
Nepotism is common and, as a result, unqualified people are running our band businesses. In my First Nation, we have a director of education who has only completed grade 10. That director is asking grade 10 students how to go about creating programs for grades 11 and 12. How will we ever make progress if we do not have external controls?
We also have violence against our elders, something that never happened before. That is on the rise. We have battered women and children. Where do they go? Victimized women, whose clothes have been torn, have gone to my grandmother's house for help. Where are they supposed to go? There is no attempt to deal with those situations by the chief and council. Where are our human rights on the reserve?
Homicide and suicide statistics are on the increase. There is a high unemployment rate.
There is a lack of financial accountability. The band officials account to no one, not even to their members. We have families against families. Some of my family members are on council. My father is an elder and he should be advising them. As I said, there is absolutely no financial accountability and no financial records are kept for people to see. They do not exist.
Large bureaucracies are being created in the movement towards self-government, and there is duplication. From the Department Indian Affairs we have gone to the massive spending on tribal offices, the Federation of Saskatchewan Indian Nations, the AFN, and band councils. As a consequence, children are hungry. If you are not in the good books with the chief and council, you will be selling your table and chairs to try to get food on your table, or your house may get burned.
We have reports of houses being shot at. MLAs were secretly brought in to see the actual holes in the buildings of those people who have no voice. When we go to the province they tell us it is a federal jurisdiction. Where are our human rights at the grassroots level?
We have followed up on the reports from our legal counsel who just made a presentation here. The Saskatchewan Indian Cultural Centre, which is one of our aboriginal institutions, had their president brought before an adjudicator and she was found to have taken $58,000 from the members of that reserve. What penalty was imposed? None. She was renting her TV to that organization, insuring two of her vehicles for use for the educational centre, and buying educational items which she did not have receipts for. In the end, when the accountant was raising flags of discrepancies in this organization, it was found that this lady did take $58,000. But that was the end of the matter. Yes, there was compensation, but where is the justice? If you steal, it does not matter what colour you are, you should do the time. We have too many separate justice systems for aboriginal people based on colour. It should not be so, because many are suffering.
I am a treaty Indian person. I pay taxes because I work for a province.
I have a list of the types of reports that are being made to our organization. We have found that some of these people have offshore investments; drive new vehicles; own multiple properties; and receive high salaries. Our First Nations people are going to the media because no one else will listen. The Canadian justice department told us that it is politically sensitive and embarrassing, that we should go to the CBC. When the reporter came to our reservation, he was met with a steel bat. The chief's wife chased him. That is when we started getting support from the public who, before then did not know how many human rights violations were happening at the reserve level.
People who do not have a university degree are running the schools. They are not responsible to the band membership.
Loans are made to selected individuals, but there is no financial accountability. There are no appeal procedures.
We are denied financial records at the local level. The royal commission report points out that these problems are not uncommon. To think that self-government will solve all the problems, is simplifying it, no matter what kind of self government you have.
In Saskatchewan alone, we have 72 First Nations with different languages. We have three different types of Cree: Swampy Cree; Plains Cree; and Woodlands Cree. These people are different types of Cree with regional variations. You are being over simplistic when you think that all these nations will come forward and negotiate self-government.
We need is financial accountability at the local level. The royal commission report recommends that we be given more money. We do not want more money. What we want is that the money we already have in our reservations is used wisely.
Our latest figures indicate that, in one year, $350,000 went to the chief alone. Then, $200,000 went to the councillors. That money should rightfully be spent on education for those people at the reserve level. There is no watchdog. There are no human rights because provincial human rights laws do not apply in reservations. What recourse do people living on reservations have?
Senator St. Germain: I see that a Member of Parliament has taken up your cause. Often, when people question anything to do with our native population, there is a negative backlash. That are cited as being racist. How do we overcome that?
I agree that there are many injustices out there. Based on what I have read and been told, DIAND will often cater to the status quo, that is, the current leadership.
How do you suggest we make your story known, so that we can aggressively pursue a solution?
Ms Freed: If you will notice, the people who are crying racism are our own so-called "aboriginal leaders".
Senator St. Germain: That is correct. However, the media coverage, such as that in The Globe and Mail, which recently did a series of stories on economically successful bands, zeros in on the successes. These articles are not necessarily correct. I believe very little of what is written in the media.
You are telling us that these injustices are occurring not only in the economically viable bands, but also in the bands that are receiving basic allocations from the Department of Indian Affairs and Northern Development. You say that in many cases the chiefs and their councils are depriving the members of their rightful portions of these moneys.
As you know, the mandate of our committee is to study self-government. Do you have any recommendations in that regard?
Is the appointment of an ombudsman the answer to your problems, or only a portion of the solution?
Ms Freed: This is just a portion of the solution. We are only addressing the tip of the iceberg. Outright fraud is rampant.
In Manitoba, we have 61 First Nations, only one of those reserves is run adequately. Only one reserve has accountability, democracy and equality.
Senator St. Germain: How are off-reserve people treated?
Ms Freed: In Manitoba, most of the off-reserve band members live in Winnipeg. Many band members are relocating off the reserves because they are not getting services or because they are being chased off. As I stated in my brief, many things are happening to the people who are opposing the way the administration is operating at the band level.
Ms Gallaway: One of my recommendations is to give the Auditor General of Canada the same authority on the reservations as they have in every other areas. We would then have true accountability and fiscal responsibility.
The Chairman: In your presentation, you refer to people not living up to standards. That this may be because of the absence of standards at the community level.
Are people normally elected at the band level?
Ms Gallaway: I will refer to one of the recommendations I made. We should follow the same Election Act procedures at the reserve level that are followed in federal government elections.
It is not uncommon in Saskatchewan to find that the ballot box has disappeared. One reserve spent over $86,000 in legal fees to try to have a process in place that would have checks and balances.
Last Friday, when I went to vote for what land we should buy, people were filling out six ballots each. There are no regulations about casting your vote.
The Chairman: How often are those people elected into office?
Ms Gallaway: Every two years.
The Chairman: If the people do not like their elected officials, they can vote them out; is that the case?
Ms Freed: In Manitoba, once a chief gets in, he changes all the rules and they change the band custom, meaning hereditary custom, and you have a chief for life. He is in that position forever. When people try to oppose him, that is when all these things happen to them.
The Chairman: You are basically saying that people are not ready for self-government. You would like the retain status quo, but you want accountability built into that.
Ms Freed: The aboriginal leaders are ready for self- government. However, We, at the band level are not ready, and we will not be ready until we can get financial accountability, democracy and equality.
The Chairman: Is there any way you can provide us with a list of individual band members, and the communities in which they live. I am referring to those that you consider are not ready for self-government.
Ms Freed: Do you know how much work that would be? I work on a volunteer basis.
The Chairman: I am asking whether you have that information.
Ms Freed: I can do it, and I will do it.
The Chairman: If you are criticizing people who are not here, you must be prepared to furnish us with some information.
Ms Freed: I will get it, but it will take a few months.
Senator St. Germain: Perhaps our committee should seek out the rank and file in this country, rather than just listening to the chiefs and their top people.
Ms Freed: Our accountability coalition is planning a meeting with all the nations in Canada on June 3, in Winnipeg. You are welcome to attend. Most of the band members will be there.
Senator Chalifoux: I was presented with a report from the north-eastern Alberta coalition several months ago. I gave the report on this very subject to Minister Stewart. The department also wants accountability. I have several copies of that report in my office if you would like to have one.
The Chairman: Although you say that you want to retain the status quo, you do want some quick fix of the accountability mechanism. Have you considered the provisions of the Indian Act, even though they seem to create animosity from time to time?
Ms Freed: What good is the Indian Act when our chiefs can opt out of section 74 which pertains to elections and voting, and revert to band custom? What good is the Indian Act to us when they are allowed to do this?
The Chairman: In fact, you are saying you cannot retain the status quo.
Ms Freed: Not if the chiefs can make their own rules as they go along.
Ms Gallaway: Historically, the Indian Act has been discriminatory towards the aboriginal community. It needs to be examined because it has pigeon-holed us so much so that we cannot enjoy the same things that non-aboriginals enjoy.
We do not need to remain on Indian territory to be successful. I am a farmer, an outfitter and a teacher. I am also doing graduate work. My people have come to me and asked me to try to explain this to you people, so you know that they are suffering as well.
The Chairman: If I understand correctly, you are saying that this does not apply across the board. You are focussing on an isolated case that is a problem in your particular province.
Ms Gallaway: It is not a provincial problem; it is a Canadian problem. People phone us from British Columbia and Alberta. They want something done. We have elders sitting in band offices asking for accountability. When that is happening from province to province and no one is listening, what are these people to do?
Senator Chalifoux: Thank you very much for your very enlightening presentation. As an aboriginal woman, I have faced these issues for many years. Hopefully, we can address them properly.
Many issues face the bands, the reserves, the Métis and the Inuit communities at the grassroots or community level. I do not like the expression "grassroots". We are not under the ground.
Ms Gallaway: We feel like we are under the ground.
Senator Chalifoux: You are asking for basic human rights, justice, financial accountability, and elections. When someone is elected chief, is it someone who has the largest family?
Ms Gallaway: It is always the one with the largest pot of money, or the one with furniture trucks coming on to the reservation.
Senator Chalifoux: I realize that many may not be ready for self-government, but how do you see these wrongs and discrepancies being addressed?
Ms Gallaway: One step in the right direction would be the legislating of financial accountability by Parliament.
Senator Chalifoux: Did you know that treaty Indians are not included in the Human Rights Act?
Ms Galloway: Yes. We can feel it at the reserve level. There are constant violations of human rights on the reservations.
Senator Chalifoux: I am sure you would like us to consider that while we are looking at self-government, which I do not see happening for the next few years.
Am I correct that your priorities are human rights, justice, financial accountability and elections?
Ms Freed: As well as equality for Bill C-31 people.
Senator Chalifoux: Yes, that is a major issue.
Senator Landon Pearson (Acting Chairman) in the Chair.
The Acting Chairman: I am interested in issues dealing with children and how we are able to better protect children. You raised an issue which gave me great concern. You talked about an ombudsman's office.
I was involved in recommending a children's commissioner at the national level, a concept which is still in the developmental stage. A commissioner for aboriginal children would be helpful. Such a person could consider the issues of abuse you have raised. I am talking about an aboriginal commissioner for aboriginal children.
Ms Freed: That sounds like a good idea. In Manitoba, we have one reserve that has an hereditary chief. As well, the chief's sister has eight jobs. One of her positions is the executive director of child and family services, and she abuses her authority. She will apprehend children if you oppose her. If you say the wrong thing to her or her children, she will do something to apprehend your children.
Child and family services hires unqualified, unreliable and incompetent people who apprehend children for no reason. A number of families have approached me for help in trying to get their children back. Two of these cases could result in legal proceedings because the social workers do not know what they are doing. They are ripping families apart for no reason. If they have a grievance against a particular person, they apprehend the children, which is unacceptable in today's society.
Ms Galloway: Numerous aboriginal children end up in the inner city. They are angry young people. Given the overcrowded conditions on the reserve and the type of education offered on the reserve, there is no protection for our children. Many people say they either barricade their children in if they go to town to shop, or else they take all of them along. They have big families. These parents are afraid of sexual predators. Our justice system hands down community sentences, so the predators are there.
I teach many children from aboriginal communities. When I get a report that they have been molested, I become very sad. The non-native population has checks and balances in place, but we do not have that at the reserve level.
The Acting Chairman: I keep hearing about these "checks and balances," which are apparently missing.
Ms Freed: The person I was telling you about is also the executive director of her reserve's child and family services. A 16-year-old boy had to apply a peace bond to her while she held this position. I have the peace bond forms here. Two other women also had to apply a peace bond to this woman. I went to our provincial government, and they refused to do anything about it.
The Acting Chairman: I am aware of those jurisdictional problems.
Senator Chalifoux: With respect to the ombudsman, Alberta has developed a child advocate, and there have been many problems. Who would appoint and oversee that ombudsman? Would it be the provincial government or the federal government? How would that happen, given that it has failed in Alberta?
Ms Galloway: We have asked the province for an ombudsman. When we look at section 35, the term "aboriginal" encompasses the treaty Indians and the Métis. It will be up to us to pigeon-hole these people because they are all over the map. We need a provincial ombudsman to deal with those aboriginals who live off the reservation and to help people understand that there are problems. For aboriginals living on the reservation, we cannot have barriers to a provincial or federal jurisdiction going in when a human rights violation takes place, no matter where it is. We must have a system in place that will cross boundaries to save our children, because they are dying in massive numbers.
Senator Mahovlich: It sounds like we need an ombudsman for each province who would report to the Attorney General. Would that be the answer?
Ms Freed: That sounds good. I am here today representing quite a few reserves. For one ombudsman's office to take care of all these problems would be too great a task.
Senator Mahovlich: Who appoints the Attorney General? It used to be the Queen, but that is no longer the case.
Senator Andreychuk: Are you talking about the Attorney General of each province?
Senator Mahovlich: Yes.
Senator Andreychuk: It is the government of the day.
Senator Mahovlich: The government of the day. That would be a start.
Ms Galloway: We have taken information to the provinces, as well.
Senator Chalifoux: Their policies and regulations do not address the issue. That is the problem. That is why I am asking who would give the ombudsmen the power to do what they have to do. The province has jurisdiction over child welfare, and that is the issue. That is what you would have to address.
Ms Freed: If you want a copy of this, I will be glad to give it to you.
We cannot have an ombudsman appointed by the government or a political party or aboriginal leaders. As well, there must be a board of directors. One person cannot have all the authority.
Senator Mahovlich: The government of the day appoints the Attorney General, and then the Attorney General appoints the ombudsman.
Ms Freed: That is no good because we will end up back at square one.
The Acting Chairman: Most ombudsman report to the legislature, so they report to all parties, not the party in government.
In your organization, to what degree have you been able to attract the involvement of young people?
Ms Galloway: I just had a meeting where our young people said, "What are we doing and where are we going?" They were quite excited by the progress and the little bits of light at the end of the tunnel. You are giving them some hope.
Senator Andreychuk: To what extent is the problem getting more serious or less serious? I come from Saskatchewan. My hope comes from the fact that so many more young aboriginals are getting an education and speaking out and questioning their leaders. It is a slow process, but they are starting to do it. Do you see that happening?
Ms Galloway: Yes, we do. Since we started in 1989, we read about it happening more often. The media is beginning to pick up on it -- something they did not want to do it at first. We are also beginning to see some movement in the aboriginal community, not only among the young people but also among the elders. I will submit to you the memo I mentioned to the minister asking about accountability at the reservation.
Senator Andreychuk: To what extent are the people challenging customary law? We are told, if we refer to the royal commission, that we should respect the structures within individual reserves. My rebuttal has always been that custom is not a static thing, no matter where in the world you are. It evolves. To what extent have you been able to challenge the customs and say that these may have been customs of 1880 or whatever but, given some opportunity to evolve and some input, the customs now would be different from what they were 100 years ago? Are you getting anywhere with that argument?
Ms Freed: We are not. On my First Nation, we have a hereditary chief. I have written to the Department of Indian Affairs -- I have it all here for you, if you want it -- requesting the statistics on the referendum when we opted out of section 74 and reverted to band custom. The first response from the department was that, on August 24, 1972, Dakota Plains First Nation opted out of section 74 and reverted to band custom. I had misplaced that letter and, approximately a month later, I again faxed the same letter and the response I got then, which was contradictory, was that our reserve, Dakota Plains First Nation, when separating from the mother reserve, Long Plains, automatically fell under band custom election process. I wrote to Jane Stewart, and she responded with the same details.
I remember when we had elections. I do not remember ever having a referendum on our reserve. It is a mess. We cannot get anywhere. In order to do anything to challenge the band custom, we must to go to court. We don't have the time or money for that.
Senator Andreychuk: My question was not intended to challenge hereditary custom. Within your system, you have an ability to change your customs.
Ms Freed: How can we change it when we have no control?
Ms Galloway: The types of structures we have on native communities constitute a dictatorship. People are scared to speak. Some have given up and closed their windows. They stay and do their own thing. You are guilty by association as well. It reverts to the issue of human rights and custom.
Historically, aboriginal communities had beautiful customs. We can be bicultural and operate on the same plain as anyone else, but there must be ethics, honesty, integrity and accountability. That takes us back to the true aboriginal customs which have been lost. I do not know long the aboriginal communities will evolve before the Government of Canada opens their ears and says, "Yes, they should be treated like anyone else. Give them human rights."
Senator Andreychuk: Have you ever taken your concerns before indigenous groups or the Human Rights Commission? You seem to be looking to the federal government or provincial governments. Have you considered turning to the place where human rights are protected, that is, the Human Rights Commission?
Ms Freed: One of our members had a position as welfare administrator, but when she started participating in our group, she was fired. The reason given was that they were amalgamating the welfare department with some other program within the reserve. She went to the Human Rights Commission, but they refused to do anything about it.
Senator Andreychuk: I was thinking of the international body where indigenous peoples are being examined in their committees. I do not think this has been brought to their attention. Perhaps you should consider that.
Ms Galloway: If anyone has information that will assist us in that regard, we will do that.
The Acting Chairman: That is a very good recommendation, and we will ensure that you have the information on how to do it.
On behalf of my colleagues, I thank you for your presentation today. It has been extremely interesting.
The committee adjourned.