Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 25 - Evidence, April 13, 1999 (afternoon meeting)
OTTAWA, Tuesday, April 13, 1999
The Standing Senate Committee on Aboriginal Peoples met this day at 5:20 p.m. to examine and report upon aboriginal self-government.
Senator Charlie Watt (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we will begin with a presentation by Dr. Mark Dockstator.
Dr. Mark Dockstator, Professor of Native Studies, Trent University: Thank you very much for the invitation to address this committee. I was here this morning as part of the Assembly of Manitoba Chiefs, however I wish to make the distinction that I am here now as a professor of native studies. I also work with the Assembly of Manitoba Chiefs but I am not here in that capacity. We have our political leaders speak on behalf of the assembly.
I am here today to give an overview of self-government issues and, perhaps, to address some issues regarding the interface mechanism of what is evolving to be the new structural relationship between aboriginal peoples and the mainstream of Canadian society.
You will find a 10-page brief in front of you, which you can refer to. However, I will be working from the large diagram I have here with me -- which is similar to the diagrams on page 7 of the brief.
Figure 2 is the western perpective on RCAP's fundamental change.
To give you an overview about where this diagram originated, it is the model that RCAP used as the basis for the final report. They were examining how to describe the history of the relationship between aboriginal peoples and western peoples over the last 500 years. After many attempts, they chose this model -- which I developed as part of my doctoral work in law -- which came from traditional teaching. Essentially, this model was developed through my work with various elders.
This model attempts to give the two different views of history. From these two views, we can determine why there are totally different concepts being understood when people are using the same terms, and the implications for interface mechanisms.
This diagram attempts to look at the last 500 years of history in non-aboriginal western society and aboriginal society in North America. The top line represents western society, represented by those people coming from Europe. The bottom line represents aboriginal societies. The first diagram is an attempt to explain the concept of history from the perspective of European society, western society, non-aboriginal people. There is a very specific view of history on how this interaction would occur. It is the history I was taught when I was going through school. When I was university, I would stand up and say that I did not agree with that view of history, that I thought there was another version, and they would ask me to tell it. I would have to reply that I did not know it yet but that I knew it was out there.
I will present first the western view of history. At the point of contact here in North America, the belief was that, although the aboriginal people were physically present in North America, they did not have the badges of civilization. In other words, although they existed physically, they did not have the self-governing institutions that could be recognized by western society. We have the legal concept of terra nullius; that is, that when the Europeans arrived they could claim the land because the aboriginal people did not have governing institutions that could be recognized. They were not nations, per se. Therefore, the dotted line on the model represents the thousands of years of history in North America which originally were not recognized as having existed, in either a legal or societal sense.
The idea after this point in time is that aborignal people came into existence legally. For example, the Royal Proclamation gave aborignal people certain rights. The relationship went on for a certain period of time, that is, coexistence with relative equality, until aboriginal people were displaced from the mainstream of what was becoming a European society here in Canada.
Hence, aboriginal people were displaced and we then had the concept of `citizens minus'. In other words, aboriginal people had lesser rights than those people in the mainstream of society.
The idea was that displacement would be temporary, in this way. Whatever remained of their traditional concepts of governance or a nation would disappear. They would be displaced somewhat to the periphery of society. Reserves would be established. The Indian Act and treaties, as mechanisms, would facilitate that temporary displacement. The idea was that aboriginal people would then pick up those badges of civilization. They would learn how to govern, to own land, to use the vote responsibly -- one person, one vote. The idea was that, at a certain point, aboriginals would assimilate into the mainstream of society and the rights that were given to them would disappear.
Therefore, the Indian Act gave rights to aboriginal peoples; the treaties also gave them rights. And just as you can give rights, you can also take them away. It was the belief that, after a certain period of time, aboriginal people would disappear as a distinct entity within Canadian society. When that did not happen, the situation was labelled as the "Indian problem." In other words, aboriginal people were not assimilating; they were remaining on the periphery of society. That situation was now classified as a problem and, as such, a solution had to be found.
In 1969, under the Trudeau government, a white paper was put forward. The thinking was that the situation was easy to resolve. The belief existed that all that needed to be done was to get rid of the treaties and the Indian Act. According to the white paper, once the mechanisms that supported the displacement of aboriginal people were no longer enforced, the system would collapse and there would be equity.
Therefore, the white paper, which was drafted under Jean Chrétien, then Minister of the Department of Indian Affairs, intended to eliminate this separate system by abolishing it. However, there were lawful obligations to be met. For example, if a treaty referred to 128 acres but, in fact, only 100 acres changed hands and 28 were owed, there was a lawful obligation. However, once the government met its lawful obligations and the Department of Indian Affairs was dissolved within the five-year time frame referred to, there would no longer be a problem, only a solution.
Of course, the 1969 white paper failed, essentially because of the strong response from the First Nations aboriginal people. Subsequent to other developments and to Supreme Court of Canada rulings, it was decided that perhaps the relationship should be negotiated. The idea of self-government was born.
In historical terms, the thinking after the constitutional hearings was that perhaps we were a bit harsh when we displaced aboriginal people; that perhaps we took away too many rights, the idea of `citizens minus', and that some of their rights should be restored.
The idea of self-government is to devolve power to the existing forms of governance -- in this case, Indian Act, band governments, whatever is in existence -- to elevate those forms of governance by giving them more powers. That is what governance and self-governance mean and what the devolution theory of rights entails.
The above is an overview of the history I was taught in my years of schooling, in including law school. When I was in law school, I was told that a treaty is a contract, a temporary measure that, once fulfilled, you can eliminate; that the idea of a treaty was to displace aboriginal people by giving them reserves, cows, ploughs, and a form of governance under the Indian Act, and that once you have all of that you can get rid of the treaty. I replied that that was not my understanding of a treaty, that I understood a treaty to be a sacred document reaffirming a nation-and-nation relationship. Nobody, including the professors who were teaching me at that time, knew what I was talking about.
I then decided to embark on a dual degree process. I went into traditional teachings as well as continuing in university, in an effort to understand how to best merge the two ideas. That is how this model came into being.
The aboriginal version of history will tell you that aboriginal people in North America started where I am pointed to on the diagram; that they had governing institutions and sophisticated civilizations, different but certainly equal to those of western countries.
According to the aboriginal version of events, when contact was made between the two societies, they made an agreement. The two groups got together and formed a nation-and-nation relationship, based on equality. The line I am pointing to on the diagram would follow through. That nation-and-nation relationship, in contrast to the western version of events, continued on through to the present time. It has never gone away; it has always been there.
The dotted line indicates that the nation-and-nation relationship might not have been recognized by the majority of society but that it has never changed. It has never been lost; it has never been taken away. For example, treaties stop here, at this dotted line on the diagram. A treaty was not a contract drafted to displace aboriginal peoples and take away their rights. A treaty was a reaffirmation of that original nation-and-nation relationship, a reaffirmation that both are equal. There are changing circumstances in the societal relationship, certainly.
Therefore, when First Nations speak of self-government, they speak of this relationship -- this dotted line I am indicating on the diagram.
That dotted line is a starting point for developing a societal relationship with Canadian society. During constitutional discussions, when everyone was talking about self-government, the same words were being used by everybody but the concepts were different.
That is how we came to the empty box-full box theory. In this theory, the position of western society, in respect of the existing section 35 aboriginal rights in the Constitution, is that the box is already full. They said that the rights that are defined by the courts, which are very minimal, fill the box; that it is frozen and nothing more can be done.
Aboriginal people, on the other hand, said that the starting point was this dotted line, and that the box is empty.
The rights that have already been recognized form the bottom of the box, and it is our job to fill up this box with the rights that are in existence but have never been recognized.
In my experience, therefore, when we are talking about, say, self-government, the terminology we use may be the same but the concepts are very different. Thus, we are speaking about the same things, in either English or French, but the concepts are very different.
Hence, what I am doing here is pointing out that these two different concepts must be taken into account, especially in the contemporary context, in our dealings with self-government. There are still two different versions of history in play today. The most recent example of that is Delgamuukw, where Mr. Justice McEachern, in the B.C. Supreme Court, said that he was in agreement with Hobbes when he said that life before contact for aboriginal people was nasty, brutish and short; that it was a rough place to be and that aboriginals did not have the badge of civilization before contact with western peoples. Furthermore, he indicated that aboriginals cannot be recognized as being self-governing because they were not nations.
However, the Supreme Court of Canada is saying just the opposite. They agree to the position set out by the solid line. They say that aboriginals were self-governing, that they did have the badges of civilization and that there are natural implications that flow from there.
These two versions of history are illustrative of the dynamic or discussion that is currently ongoing. And because I do not think the concepts are clear, there is a tendency to confuse the issues rather than clarify them.
The Chairman: The theory about the full box and the empty box arose after 1982. Are you saying that section 35 is the empty box theory?
Mr. Dockstator: I am referring to the idea of two different concepts about the meaning of aboriginal rights. The western society concept is that existing aboriginal rights mean that the box is full; that it is a matter of looking at the existing rights, taking them out of the box and defining them, and then putting them on paper.
The Chairman: You are not necessarily saying that clause 35 is an empty box, are you?
Mr. Dockstator: No.
The Chairman: If you look at it from the aboriginal perspective, it is a full box theory. However, the next door neighbour might feel that it is the empty box theory, depending on which way you understand it and from where you come.
Mr. Dockstator: That is right. There are two different understandings. The diagram tries to point out that it is the same language, namely, "existing aboriginal rights," but there are two different concepts.
The Chairman: I wanted to ensure that that was clear. I was beginning to wonder whether you and I were going to disagree. However, we agree on that.
Senator St. Germain: Thank you for your presentation.
Your resumé states that you were the commissioner on the Cree Naskapi Commission of Inquiry. The present day commissioners appeared before us regarding the establishment of a tribunal, to which a sunset clause applies, to deal with aboriginal issues. They felt that this was necessary because governments are failing to deal with the agreements that they have signed, as far as the implementation of those agreements is concerned.
What is your view on that?
Mr. Dockstator: It was a tricky question, obviously, that RCAP, the Royal Commission on Aboriginal Peoples, did not want to address. They set up the structure and said that there must be structural fundamental change. There are certain ways in which that could be accomplished, but they did not go into what the interface mechanism would be, only because it is a difficult question.
On the issue of self-government -- and perhaps I can use another diagram to aid in my response. During the 1970s, after the Calder case we had a focus on land. The idea was that there was no separation between land and self-government. In other words, if you got rid of the land issue, you got rid of the self-government issue because they were one and the same -- that is, if you would recognize self-government at all.
After the 1969 white paper and into 1973, there was no recognition of self-government. That is why there was a focus on land. If there was self-government, it was tied up with land such as James Bay, which led to the Cree Naskapi Commission.
We have had about 20-plus years of development on interface mechanisms that deal only with land; for example, the Indian Commission of Ontario, the Office of the Treaty Commissioner, the British Columbia Treaty Commission, and the Indian Claims Commission and what is going on there right now. The difficulty is that everything is focused on land. Recent development, especially in the last five years, is focussing on self-government. However, there are no interface mechanisms built into the system for self-government.
Self-government, in comparison to land issues, is vastly more complicated. Land might deal with one or two line agencies or, within the government, one or two departments. Self-government deals across the whole spectrum with all the line agencies and, in some way, impacts on every governmental department. It is vastly more complicated and complex. The interface is more complex, but there is no interface mechanism to assist in the negotiations with self-government on which to focus the debate.
Presently, the development has been focused on land. In the last couple of years, everyone has been trying to stuff government issues into land bodies as opposed to developing new bodies that deal only with self-government as an interface.
I definitely see 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.
Senator St. Germain: I have a question regarding the establishment of a third level of government in the instance of the Nisga'a agreement on the West Coast.
A great hue and outcry is building by those who are opposed to this agreement because the management of the issue by the local government, and so on, is questionable. There is a build-up of anxiety on the part of British Columbians about this issue. What is your reaction to establishing a third level of government as such?
Mr. Dockstator: The public reaction and my reaction involve two different things.
The public reaction deals primarily with this chart. The public reaction primarily involves an understanding -- and, again, it involves the western version of history -- that when aboriginal people were displaced and were given these rights through treaties and the Indian Act and were set up on reserves, and so on, a quid pro quo was involved. That is to say, aboriginal people were to assimilate into the mainstream society. That was the deal; namely, "We will protect you until you assimilate." The Indian people did not live up to their side of the bargain. They continued on through, which led to the Indian problem.
There is a backlash whenever you say, "We want to elevate this and we want to give that more powers." People say, "Wait a minute. They were not supposed to have that in the first place. That is supposed to be gone."
I was privy to the discussions this morning about identity. There is the idea that the identity of aboriginal people was manufactured primarily by western society. At this point of contact there were what is referred to as "imaginary Indians." That is, certain characteristic were given to aboriginal people at that time. One was that they would soon disappear. The concept was also that there would be a cultural clash; that is to say, when these two cultures met, one would lose. It was unfortunate, but it would be the aboriginal people who would lose. The idea was that a superior culture would steamroll through this aboriginal culture. They would be displaced temporarily, but at some point in time they would disappear. That idea still exists, but the aboriginal people are not disappearing. Instead, they are saying, "We are not only here but we are asking for more powers." Naturally, that is something that will feed that backlash, given this sense of history.
This backlash is inevitable; you cannot get away from it. It deals with the original stereotypes that were developed since contact. You will find them in every text and in all the media.
Senator Gill: When I see two parallel lines like this, I feel that there is not much sense to try to meet together. That is my problem with that scenario. To me, "walking side by side" means that we have a lot of difficulty to meet together to resolve this problem.
We have been living together in this country -- that is, Europeans and First Nations -- for a long time. We must reengineer our relationship. However, we have not done much about that. Sometimes, I try to find solutions. We should do so but, first, we must find a way to come together. Thus far, we have not learned how to do that.
We have different historical backgrounds and different references about our living, our model of society, and how to organize and manage it, and so on. What could we do to create a kind of instrument so that we can work together or know each other a little more in order to build something together in this country? We are both living on the same land and off the same resources. Instead of being one party who claims the right to these resources all the time -- and, I am talking here about the aboriginal people -- or one party who only tries to please the First Nations people, perhaps, because they feel guilty, what can we do to work together? I do not know what people are feeling, but they are trying to solve these problems. Nevertheless, the problem still exists. The relationship is not there.
What would you suggest that we do? Would you take over Indian Affairs or other departments and control the aboriginal people? What is your recommendation?
Mr. Dockstator: My recommendation is, first, to have a common understanding of the two different views of history. For example, the aboriginal view of history is such that the fundamental nature of the relationship does not have to be restructured; it is already there. If we have a nation-to-nation relationship, as defined by the treaties and reaffirmed in other agreements, then that is what we are looking for. The western view is, yes, we do have to fundamentally restructure because what we gave is you not that much and so we must give you a bit more.
If we can reach some middle ground where people can say, "Fine, let us meet somewhere in the middle and understand one view of history on which we can come together," then you can get an institution that can, perhaps, relate to those issues.
Without having an overall agreement on the concept or the approach, when you try to get into the details you will not satisfy either party. Western society wants a one-way relationship, down. Aboriginal people say it is both ways up here <#0107> referring to the diagram. There is a vast chasm between the two. Unless you can close that distance at the start, no matter what you do you will just prolong the issue. Aboriginal people always say that this is a beginning, while western society says that it is an end, a temporary measure.
Unless you can come to an agreement on the overall concept first, then when you get into the details it does not help much. I go along with the idea that you must start somewhere, and that might be an interface mechanism. Right now, everyone is working on land while no one is working on self-government. Whether or not self-government can leapfrog over all the mechanisms that have been developed for land-based issues is the challenge. If it takes 25 years, as it has for land, then it will be too late. This area is moving far too quickly.
Senator Mahovlich: Was the game plan of the 1969 white paper to assimilate you into our society? Was it the case that all the treaties would be got rid of?
Mr. Dockstator: That is right.
Senator Mahovlich: Do people on the reserves want to stay there or do they want to leave? Does the government want them to stay on the reserves or does the government want them to leave?
Mr. Dockstator: One of the very unique features of the 1969 white paper was that it was the first time the federal government set out its policy toward Indian people. They did not use the word "aboriginal" at that time.
Up until that point in time, you could always read between the lines in terms of the policy. That was the first time it was said officially that the view was to assimilate Indian people. The way that would be done would be by taking away the rights that make them separate. Just as rights can be given through treaties and the Indian Act, they can be taken away. They said, "We will get rid of the Indian Affairs Department, the Indian Act and treaties. Therefore, there will be no special rights for Indians. They have no rights just because they are Indian. The only rights they have are the rights we give them."
Senator Mahovlich: That is shocking.
Mr. Dockstator: It was to First Nations at the time.
Senator Mahovlich: What would happen if the attitude were, "Let us give them some incentive to leave"? Why were you not given some incentive? We were told this morning that education is the key. Does the government encourage you to get an education and move to the cities? I know aboriginal people are leaving the reserves. I am told there is a big problem in Winnipeg. Do they leave the reserve to get an education or do they just leave to do business in the cities?
What the government must do is give you incentives to leave and get an education. Has that ever been done?
Mr. Dockstator: The historical pattern has always been a strong push on behalf of the government and other agencies for First Nations people to leave the reserve system. The idea was that this was a temporary measure. It was only meant to last a couple of years, which is why we have treaty land entitlement. If you do not give all the acres, who will know? Indians will not be around that long. They are disappearing. To get rid of these last vestiges of Indian identity through reserves was always the government policy, not only here but in other jurisdictions such as the United States. That is still there.
Senator Mahovlich: That is what we will have to change.
Mr. Dockstator: Aboriginal people, however -- and I think you will hear this from many other presenters as well -- basically say, "If we have any land left, this is it. If we are to hold on to anything, we will hold on to this." Thus, they are always caught in the dilemma. If they want to leave, they are told to go ahead. However, it is difficult to do that, if you are leaving behind all that is your identity, which is wrapped up in the land. It is easy for other people in mainstream society to say that we should leave to go somewhere else because it is all the same. If that is all you have to hold on to, you will hold on to it very tightly.
Senator Mahovlich: Our committee met this morning with the Métis. It appeared to me as if they live in the cities, yet they have self-government and they own properties. The Métis government will not be on their own property or on their own land. They will work it no matter where they are in Alberta.
Mr. Dockstator: In the particular instance of a First Nation that has a land base, I think you will find it very difficult, certainly from a First Nations perspective, to say, "We will give that up for whatever the price might be," if that is all that remains.
Senator Mahovlich: I think they will still have the feeling of imprisonment unless they get out into the mainstream. You will have to be dealing with the world, which is getting smaller and smaller as time goes on. The key thing is to get the youth out and get them educated.
Mr. Dockstator: In dealing with the reserve system and these relationships, we are dealing with an either-or option. Yet, aboriginal people say that they will participate in the mainstream, however large that might be, and keep what they have already. That is not an either-or proposition. We keep both. We keep our identity, build on it and develop a relationship with the mainstream society and beyond. It is not the view of history where you say, "Leave in order to join," which has been the policy up to this point in time.
Senator Pearson: You have raised some interesting questions. What you said about treaties and the different perceptions of treaties I found helpful.
Like many people who have lived in different parts of the world, the issue I have is around another word that is complicated to understand, that is, "nation." Canada is not a nation, it is a state. It is made up of many nations. Thus, the challenge is how to develop relationships among all the different nations. The Quebecois are a nation.
How would you respond to that challenge on this question of nation within the state of Canada?
Mr. Dockstator: Obviously, it is a very tough question, as well as being very timely. The way I respond to that is by looking at the different perspectives of history and the one fundamental aspect, which is the imaginary Indian concept. I use that term because it is coming into popular literature now. When the Europeans landed, they manufactured an identity of aboriginal people, an identity that has stuck. One of the fundamental characteristics of that image is what I refer to as this contrasting duality. That is to say, Indians were both good and bad, positive and negative, noble and savage. They were a society that was to be admired and, at the same time, despised. Their society was strong, their culture was good, yet their society was weak and was going to be overrun. There was always this contrasting duality, positive and negative.
The same thing applied to aboriginal people with respect to nationhood. That is, after Europeans landed, they looked back and said, "We cannot recognize them as nations because we are essentially saying they are not nations." Therefore, terra nullis. Therefore, "We have property; we have ownership to the land."
At the same time, however, they had to sign treaties, and only nations can sign treaties, so they had to be self-governing and nations in order to give away the land. So, "You are not a nation; you are a nation." You are a nation at convenience, essentially.
That concept still exists today with respect to nationhood for aboriginal people, even in the RCAP report. One of the more insidious characteristics with respect to aboriginal peoples is that duality that always applies to the image. Even RCAP says, in effect: You are a nation but not a nation. You do have nationhood, but not in the same sense that we are a nation -- if we are to be defining ourselves as a nation.
Throughout the RCAP report, you will see that conflicting duality that says, in effect: Yes, you are a nation, even if you are not recognized by Canada; however, you do not have the powers of a nation to govern yourselves. You are something less. You are somewhere in the middle. In Canadian jurisprudence, that is referred to as sui generis. In the United States, they are domestic dependent nations. We cannot decide between the two conflicting dualities, so we will cut it down the middle and decide as we go along. However, nationhood is probably the trickiest of all those.
Senator Pearson: Is it not perhaps more useful to make the distinction and talk about states as opposed to nations? Twenty per cent of the Canadian population now came from somewhere else, in this generation. We all came from somewhere else, in reality.
I was talking to Senator Mahovlich earlier about his background. My background is diverse: the French Huguenots, who were driven out of France; the Scots, who were driven out of Scotland; and the Irish, who were driven out of Ireland by the potato famine. None of us can have an exclusive right to having been oppressed. Most of us come from some kind of oppression. I struggle with those concepts. I can deal with practicalities much more easily than I can with some of your conceptual issues.
I understand what you are saying about treaties and about the historical background, but history is so complex. The history of people who come to live in Canada is complex, and I tend to feel it is more practical to say, "Here we are now. Do we need an independent agency to monitor and assist aboriginal treaty negotiations?" I find that a nice, practical thing to consider.
I lived in Mexico for a number of years, and they have many issues there surrounding indigenous peoples.
This is an enormously complex issue. To say that there is a mainstream Canadian society is another generalization, and I do not know whether it fits.
Mr. Dockstator: Your comments are good ones, and this model is meant to be a theoretical model based on the highest level of generalization. I use it only to point out the fundamental nature of the relationship as opposed to details that fit into it. The reason for this model is that this area of study is so complex. Not only are you dealing with more than 500 years of contact, but also with multiple cultures, multiple nations, different understandings, and a very complex legal structure that has been superimposed on top of all this. For people to jump into this area and understand it requires a simplified model to get the basic bearings. When you talk about contemporary issues, you need a fundamental grasp of the differences.
One of the criticisms that has arisen when there is discussion of designing interface mechanisms between the two societies has been that they are just an extension of what already exists. All they are doing is trying to do what has been tried before, and that is to assimilate. In order to restructure, you need to find out what you are restructuring from, and this model is only attempting to set out the basics.
Senator Pearson: I understand that, but I come back to the province of Quebec, where you are talking about not two societies, but three, at least.
Mr. Dockstator: The idea that you can represent aboriginal society by one line, when there are more than 500 nations, is, of course, an overgeneralization, but without that the detail tends to overwhelm the concepts.
Senator Austin: Dr. Dockstator, I would like to discuss with you briefly the U.S. concept of dependent nations. Is it an accepted construct within the U.S. judicial system? Has it been accepted by the mainstream of the aboriginal communities in the United States?
Mr. Dockstator: It is a fairly well established legal principle, and there have been many developments based on that, yes. Their forms of government, the tribal forms of government, are based on the legal concept of domestic dependent nations, that they are sovereign but they are domestic and dependent. Again, there is this duality. You are a nation, you are self-governing, but not like us. There is a difference, and that is how it is defined in U.S. jurisprudence.
Senator Austin: Do you find that the mainstream of the aboriginal community in the U.S. understands this principle and operates pragmatically within the principle of dependent nations which was set down by the U.S. Supreme Court?
Mr. Dockstator: As with any two governments, there are always difficulties in interface between the two different governments and how they operate, but they have had a lot of years of experience and have worked out many of those differences. You can have a sovereign nation with its own court and police system, and extraterritorial jurisdiction, and work out all those arrangements. That has been done in the States in a number of different cases.
Senator Austin: This is a very general question, but do you feel that the process with which we are engaged in Canada is, in a pragmatic fashion, proceeding towards the same models, whatever the words we use?
Mr. Dockstator: The reason I use this model is that it is fairly well applicable to any situation, whether you are in Australia, New Zealand, the United States, or Canada. When Europeans or western society met aboriginal society, it followed that model. If you look, in a very general sense, at how that relationship has developed, it has followed that general format. Although they might have started out differently and have different ways of doing things, you essentially end up with the same type of situation.
The difference in Canada is the explosion of activity over the last 30 years, beginning in the 1970s and then following with the constitutional discussions in the 1980s, which served to elevate that discussion. Now in the 1990s, the activity has switched gears into discussion of self-government. You go from zero negotiations to 90-plus negotiations in a span of three or four years, when the fundamentals are yet untested.
Senator Austin: I think that is a very fair summary. The question, then, is: How do we catch up pragmatically? I arrived late, but when I came in you were saying that, in the so-called western model, the aboriginal communities had no rights, save those which were granted to them. That is also the U.S. model, would you agree?
Mr. Dockstator: The U.S. model is somewhat different. In very early cases, Mr. Justice Marshall in the Supreme Court of the United States said they are sovereign nations. If you want to take away their powers, you can certainly do that, but they have the powers and they are inherent.
Senator Austin: In the U.S., you could take them away by law.
Mr. Dockstator: That is right. Congress is supreme.
Senator Austin: You can always take them away physically. So that meant that there was a dominant sovereign also in the U.S.
Mr. Dockstator: That is right.
Senator Austin: With respect to New Zealand, however, I have the sense that the treaties that were signed in the mid-1800s in New Zealand were actually treaties that accepted an sovereignty. The Treaty of Waitangi seemed to accept the aboriginal community there as a sovereign entity with its own sovereign rights. Is that correct?
Mr. Dockstator: Yes.
Senator Austin: Do you know why? Was it simply because it was 100 years later and the British practice had changed?
Mr. Dockstator: Basically, it depends on this line, when the treaties were signed. If the treaties were signed at this point when the two societies were relative equals -- that is, that aboriginal people were still important for military or economic purposes -- those treaties recognized aboriginal societies as being relatively equal and sovereign.
When treaties are signed after this displacement -- that is, when European society saw itself as being more powerful and aboriginal people less powerful -- they do not recognize aboriginal people as having that power or that sovereign nature.
If you are on the borderline, the Royal Proclamation refers to nations and tribes. You were nations -- we will still recognize that -- and you will be tribes after that.
Senator Austin: As I look at your model, at this stage the line should return to parallel. It should come back up. It goes down, and I agree with that, but then it should come back up.
Today, whether it is by inherent right or accepted right, the aboriginal community is back in a place where negotiations are based on law and entitlement. Would that be correct in your model?
Mr. Dockstator: That is right. RCAP says that you have to get back to this dotted line. The only difference is whether that is the end point or the start point. From the view of RCAP, essentially that is the end point; but aboriginal people see that as the start point because they still have to define that relationship between the two societies. That just gets them back to the start, whereas most view that as being the end.
The Chairman: Thank you for your presentation. We will be communicating with you. It is important that our resource people keep you in mind when we write our report. The way you illustrated what has been happening over the years has drawn the picture in such a way that it is much more helpful now to some senators.
About one month ago, Senator Austin made a statement similar to what you have highlighted for us today. What you have given us puts us in the position of knowing where we are at and what we need to do to improve, if there is to be some improvement. Again, this is not up to us. It is up to the authorities to move on the recommendations we will be putting forward. Thank you, once again.
Ms Veronica Dewar, President, Pauktuutit: Honourable senators, I wish to begin by thanking the committee for the opportunity to present the distinct views of Canadian Inuit women on the critical and important issue of aboriginal governance.
Pauktuutit is the national voice of Inuit women. Our mandate is to foster greater awareness of the needs of Inuit women and to encourage their participation in the community, regional and national concerns in relation to social, cultural and economic development.
Pauktuutit has addressed a number of wide-ranging issues that affect all Inuit in the communities. We have undertaken comprehensive projects on issues related to health and the well-being of the Inuit, such as child sexual abuse, traditional midwifery and birthing practices. We are doing what we can to ensure the implementation of the report of the Royal Commission on Aboriginal Peoples.
As Inuit women, we are the links to the past and to the future. Inuit women are the vessels of culture, language, traditions, teaching and child-rearing. These are very important qualities to governing any society.
I am not here today to provide you with a blueprint for self-government in the Inuit communities. As a non-governmental organization, Pauktuutit suffers from too few funds and too large a task. What I will do is offer some principles and thoughts from our collective experience as a people. I am sure that you have heard about the Inuit and Inuit homelands. However, let me offer my views on who we are.
We are approximately 45,000 Inuit living in four self-governing regions -- Nunavut, Nunavik, the Western Arctic, and Labrador. The Inuit are a distinct and unique people. The expression of governing ourselves individually and as collective people stems from the characteristics of our very culture.
What is it that identifies us? We speak in one tongue, Inuktitut, the universal language of Inuit throughout the world. We live in one of the most challenging environments on the earth, and yet we have been able to survive for millennia. Our traditions and values are passed down generation after generation through oral history. We will carry these stories for the next generation in our hearts and minds.
We have our own laws, designed by a people for a people based on practical and real needs, generation after generation. What I teach my children will still be here seven generations from now.
As Inuit women, we find it necessary to live in peaceful co-existence with others. This is how we identify ourselves as a people.
We have always governed ourselves. When the newcomers came, they did not find a people in chaos. They found a people with a wealth of knowledge, culture and humanity.
What is missing from the relationship between governments and the Inuit and other aboriginal peoples? How do we work together? How do we live together for our mutual co-existence?
A necessary code of treatment and equality is missing. We must begin building bridges if the relationship is to be remedied. It speaks to the very heart of the relationship. It involves exercising respect, tolerance, sharing, caring, communication and honesty. These are elements that are necessary to build a new relationship.
I believe that these are some very real barriers to resolving the legal and constitutional recognition of our fundamental human rights as a people. As a starting point, Pauktuutit supports the recommendation of RCAP for the inherent right of aboriginal self-government as recognized and affirmed in section 35(1) of the Canadian Constitution Act, 1982, as an aboriginal and treaty protected right.
I firmly believe that this is the starting base for aboriginal governments to function as one of the three orders of government in Canada. Honourable senators may ask why I say this. As Inuit women, we will no longer be treated as objects of power; as a people we will no longer be objectified.
Nunavut is a starting point for exercising our inherent right and restructuring our relationship with Canada. Our real challenge is to ensure that we have an effective government for the people, one that is accountable and sensitive to the needs of all people.
When we speak about the inherent right of self-government, we view this as an aspect of the larger right of self-determination. This is clearly stated in the Arctic policy document prepared by the Inuit Circumpolar Conference and endorsed by Inuit people living in four countries. Canada has also endorsed the right of self-determination at the international level.
Inuit women can see the need for further protection for women's rights and equality of all peoples. Pauktuutit supports RCAP's recommendation that the Canadian Charter of Rights and Freedoms applies to self-government arrangements and that it regulates the relations with individuals falling within their jurisdiction. Particularly by virtue of section 28 and 35 of the Canadian Constitution Act, 1982, aboriginal women are entitled to equal treatment by their governments.
The federal government has a policy that is committed to the Charter applying in self-government negotiations as stated in its 1995 inherent rights policy.
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.
We believe that we cannot fly together if one of us has a broken wing. A critical element to the achievement of self-government is financing of self-government. As negotiations proceed towards self-government, it is important to direct our focus on potential financing arrangements and their ability to finance such arrangements.
I believe it is time to review the types of transfers that aboriginal governments might receive from the various governments. How can we build upon capacity of aboriginal governments to generate revenues and to examine the financial and administrative policies that now determine government policy in this area?
Too often, governments and people in governments do not do the right thing. It is time to establish Inuit-only programs to meet our needs. What works for an Indian woman in downtown Vancouver is not necessarily going to work for an Eskimo woman in downtown Pond Inlet.
As Inuit, we are ready for the challenge. We have four self-government regions, as I stated earlier, a relationship that is unparalleled by other aboriginal peoples in this country.
The Inuit have managed to negotiate and implement three comprehensive land claims settlements: The Inuvialuit Final Agreement, 1984; James Bay and Northern Quebec Agreement, 1976; and the Nunavut Final Agreement, 1993. We have one outstanding land rights issue, and that is in Nichols Ridge, Labrador, but the process and the rules for negotiations are fundamentally flawed.
For instance, as Canadians, we must first find some alternatives to the extinguishment of aboriginal title. Many of us have been forced to give up certain rights in exchange for other rights and benefits. This policy must not apply to self-government negotiations. Second, the negotiations of self-government arrangements must go in tandem with land claims negotiations. The process must be an exclusionary one. The Inuit must be present to negotiate the rules for negotiation and Inuit women must sit alongside Inuit men at the negotiation table.
The James Bay and Northern Quebec Agreement was the first settlement land claim and it was the only one with a legislated hunter and income support program. As we look at the history of land claims in Canada, Inuit women see many missed opportunities to establish small enterprises for women, childcare and communal relations responsibility, including the opportunity to produce designer and traditional clothes.
Women must be equal participants and represent the views of women in the communities. The federal government must take leadership on gender equality in self-government negotiations.
At the beginning of our land claims history with Canada, the relationship was catalyzed by the threat of development to our lands. This should be triggered by people who are ready to negotiate land claims -- not because members of industry want access to resources.
The problems created by land claims rest in their implementation. These issues are often complex and substantial. I believe that other witnesses have brought these issues before you. Pauktuutit recommends that long-term resources be provided so that the spirit and intent of modern-day treaties may be achieved. If further negotiation or a review process cannot assist in addressing the problem, a dispute mechanism must be used such as the arbitration panel.
We have come a long way from the early days of negotiation. Many Inuit now live in cities. The federal government and the Inuit land claims groups must address the needs of the urban Inuit. Some arrangements have gone much better than others, however self-government arrangements must have mechanisms to address the needs of Inuit living outside their home territory.
Do not get me wrong. I am not saying that I expect the Inuit living outside the Inuit territory to have the same rights and privileges in the areas of hunting, trapping, fishing, voting, housing or community services. However, at a minimum, the Inuit in the urban setting should have access to adequate health and education. These models in the urban areas may look very different from existing models in Inuit territories. These institutions could deliver education, health care, and child care. We already have many of these institutions placed in southern Canada.
We have stated that the primary focus for implementing a self-government agreement must happen in the local and regional territories of the Inuit. Inuit in urban settings must have their own institutions. The Inuit have a proven track record to ensure that this is done. The comprehensive land rights settlements have provided access to varying degrees in the area of human, financial, resource and economic development. By virtue of these land claims settlements, we have control over our lands and resources, cash, share of revenues from resources development, and improved control and management of our lands and territories. We also receive cash transfers, and our youth have access to education and training opportunities.
This new relationship fosters new partners. It is not uncommon for partnerships between Inuit governments and corporate Canada. It is simply a new way of doing business. We are ready to redefine our relationship with Canada and the Inuit institutions, but there must be a few non-negotiables. One is that the federal government has a fiduciary responsibility for Inuit.
We are ready to live in a mutual and peaceful co-existence for the benefit of us all. What is good for aboriginal Canada is good for Canada. Inuit women must be involved in all facets of this new relationship. We are ready to sit with the men when they negotiate self-government agreements to monitor and implement these agreements and to evaluate or review implementation to our satisfaction, but change is often slow. Bureaucrats rarely can keep pace with their political masters. If we truly wish for change, we must meet halfway, utilizing our humanity and political will. Major legislative and structural innovations are necessary. I am certain that Inuit women can make many positive contributions to the issues of self-government. In our view, self-government is already a reality. It is simply a matter of how it takes form.
Senators, as a woman, those are my initial thoughts on your broad mandate. I look forward to the outcome of this process and to working with you to achieve all that is necessary -- respect, tolerance, equality, communication, and honesty. I think I have reasons for optimism.
The Chairman: Thank you for your excellent presentation. We are now open for questions.
Senator Adams: Welcome, Ms Dewar. I congratulate you on your election as president of the Pauktuutit last month at the annual meeting in Rankin Inlet. I do not have many questions. You have a good brief.
The Pauktuutit organization deals with the health community, and especially young people. It need not be all women. You can approach families within the community.
Not too long ago, we passed a bill that we worked on for two years in the Senate, and it dealt with smoking and tobacco. I do not notice it too much down south, but in the northern community, many young people have started smoking cigarettes. I think the government should pass a law to fund the people in Pauktuutit or any other organizations across Canada to deal with this problem.
You now have a new government just beginning, so there is not much legislation yet coming from the Nunavut government. Down south, we have very strict smoking laws now. In the communities, it is not as strict. I notice a few people smoking who go outside their houses to the porch or something. That is the main part. In restaurants, people still smoke in the buildings. What do you think of that? Should this be dealt with in the hamlets, in the municipalities, by making bylaws? Have you any comments on that?
Ms Dewar: Thank you. I know this has been a very great concern for Pauktuutit. We have been trying very hard to get some of the projects going, but because of lack of funds, Pauktuutit has limited resources. We have limited people. We just held our AGM in Rankin Inlet, and we spoke to some of the women in that AGM. This is a very serious concern. We have applied for funding from the governments. We do not know yet if we will receive any money.
My husband and I were talking about going to a small community, to the restaurant where everyone else is smoking. We have a little girl as well, and we do not take her along because we are afraid that the second-hand smoke will harm the child. We have been trying very hard and there is not much support from the regional associations. As you know, in our lawsuit against HRDC, we are asking for more funds.
We are trying very hard to relay the message of the harmful smoke that the people do produce in these small communities. In some of the homes, they are not allowing people to smoke any more. They are slowly getting the message across, but the message has to be taken out in a greater way to our people in our communities.
As you said, the Inuit smoke a lot in their communities, and the children are affected. We are trying to work with some these things that affect our people. We will not quit. We will continue, despite the little funding we do get. I know Pauktuutit has a track record of relaying these kinds of messages to our people.
I do not know if I really answered you or not, but we are trying our best to get the information across to our people.
Senator Adams: Yes, I believe you answered my question.
Is your organization flexible enough to give the new Government of Nunavut time to establish its policies? Are you ready to wait a little while to see how things will work out?
Ms Dewar: Yes. While I was in Iqaluit for the Nunavut celebrations, I approached some of the new ministers and their staff in an attempt to set up a relationship with Pauktuutit.I have told them about our project, and the programs we run here in Ottawa with Pauktuutit. They are more than willing to work with us and we are open to them. The relationship is evolving slowly. However, I am certain that we will work closely with them.
Senator Pearson: I understand that Pauktuutit is very supportive of youth involvement. The question that interests me -- and it really does not concern our governance study -- is: What kinds of futures do young Inuit girls see for themselves in Inuit society? Are you able to help them realize some of their dreams?
Ms Dewar: I have lived all my life in a northern community. I grew up in the Arctic and I have had jobs across the North. I went to one community last year which had no job opportunities for young people who were willing to go anywhere to find jobs. One young person I spoke to told me that, although she was going to high school, she had no future because there were no jobs in the community. She did not want to leave her relatives but she has no choice. Certain difficulties arise in some communities because the government agencies are not located there.
I believe that today our young people they are more optimistic because of the new Government of Nunavut. Their energy is high right now. I encourage young people to stay in school and finish their education, to develop interests in their lives, and I feel there is hope for their future. I tell them that what I can do, they can do. That message must be repeated over and over. I believe every agency, or the new local governments in the communities, must do more to encourage public awareness of education and job opportunities. They must encourage our young people who are very vulnerable because other things in the communities distract them.
The rate of pregnancy among teens is very high in the communities. We are doing our utmost to educate the young people in this regard. However, as an Inuit women's organization, we do have stumbling blocks to overcome. We are not attempting to take over every program. That is not our intention. We wish to work alongside other regional organizations, the hamlets or the new governments in the communities, in the area of social services. In the past, the governments in the North did very little for the young people. That is my personal view.
We really need to encourage our young people. There is a lack of opportunities for them and they are crying out. We need to work harder to solve that problem.
Senator Pearson: It seems to me, as I hear about some of the problems people talk about related to health and so on, that there is a crying need for paraprofessionals and that young people should be given the opportunity to develop skills so that they can work as paraprofessionals in medicine and so on. I do not know whether Pauktuutit does training in the area of helping people to help one another. That is one of the great benefits of political involvement. The more you are involved in the community, you become known.
I encourage you to continue in your endeavours. I know you have a good reputation.
Ms Dewar: The very nature of our cry to the HRDC is: Give us more funding because we can do a great deal. We have a good track record, and we have the expertise and the relationships in the communities as an organization for women. That is widely recognized throughout the North and worldwide. If we had adequate funding we would take advantage of the many opportunities we have to help people in the communities, and women especially, in the area of training. This is what we are struggling for.
Senator Andreychuk: You have adequately explained the resources you need and the programs you will set up. We are studying self-government. Do you agree with the royal commission and the direction it set out as a framework to work towards the goals?
Ms Dewar: Yes, I do, and we need to concentrate on it more in the northern communities. Do not just do it for the First Nations, consider as well the people in the North, because the impact will be in the communities. It is hard to appreciate, as you sit here, because maybe you have never been up North. You do not see the people or the government set-up in the communities, how they interact with one another, and how the inter-agencies fit in with one another. However, I am sure that Senator Watt reminds you that you must involve us and let us teach you what we know so that we can help you to implement some of the recommendations that were made in that royal commission report.
The Chairman: It would be helpful to us if you could you provide us with a list of the programs to which you desire access, the programs that you are now enjoying, and the programs that you feel you have been short-changed on. To a certain extent, that is a link to the whole concept of governance, because I am hearing from you that you do not want to be informed after the fact; you want to help design this new government. I strongly believe that is the way to go. If there is to be strong input from women, it should be through your organization.
You now have a new territorial government in a new northern territory. The Government of Canada, after many years, has realized that it is now time to delegate power to the territorial level, even though the federal minister may have the last say on certain matters, as is the case when dealing with certain treaty matters. We know that there is a "bigger" government than the territorial government. In many instances, the territorial government will respond to the requests of the federal government. From time to time in the future the territorial government will be in the difficult position of having to challenge standards of the national government. That will not be an easy task, particularly when the territorial government must rely on the federal government to meet its financial needs in order to fulfil the needs of its people.
Do you worry that the new Government of Nunavut will run into some problems in dealing with the national government? Is that why you suggested there should be strong consideration given to the concept of a third level of government?
Ms Dewar: I know that the people of the new territory of Nunavut have high expectations. The Inuit thought it was for them only, but it is not.
The Chairman: That is why I am raising the issue.
Ms Dewar: That is why there are many uncertainties right now. I do not know the thoughts of the new legislative assembly. Your question is difficult for me to answer because we have not yet had an opportunity to sit down with the new government. Expectations are high that everything will be rosy, but that may not be the case. When the Prime Minister was in Nunavut, he said that we have many challenges ahead of us, and that everyone will want a share of everything.
There are many issues to be dealt with before we get to thinking of a third level of government, although I know that is the desire of the people. I do not know what will happen, but it would be good to have a third level.
The Chairman: You were asked by one of my colleagues whether you support the royal commission report. You said that you do. One of the recommendations of the royal commission was for a third level of government; in other words, a government with the same structure as the federal government, but only for the aboriginal people.
If we go in that direction, do you think we can co-exist in harmony with each other?
Ms Dewar: Yes.
The Chairman: Do you believe that, regardless of what happens in Nunavut, Labrador or Quebec with regard to governing institutions, there is still a need for the aboriginal people to interact at the national level? Is it your position that, unless that takes place, there will be a problem?
Ms Dewar: To a certain extent, yes.
The Chairman: I believe that the royal commission went as far as to mention an aboriginal parliament.
Ms Dewar: Yes.
The Chairman: Do you believe that that should be the goal for aboriginal people?
Ms Dewar: I agree with that. My brother, Tagak Curley, and I have spoken many times on these matters. My brother has taught me a little bit about politics. I do agree that it will be necessary for the Inuit to have equality in their self-determination.
The Chairman: The Government of Canada and the Government of Nunavut may clash at times, but they should be prepared to negotiate their differences.
Ms Dewar: The people of the North are determined to have something along the lines we discussed.
If you have your own public government and a new territory, you do not want to depend on the federal government forever. The new government has to learn to function properly. You must give them a chance to make their own decisions and to become self-governing. They are asking for an opportunity to form this a third level of government to deal with their own issues. They would be the best people to consult with and to come forward with new ideas.
The Chairman: You also made the point in your presentation that Inuit people, regardless of where they are -- even at the international level -- are the same people with the same language. Your cultures are basically the same whether you come from Alaska or Greenland.
To deal with the national level rather of government, do you share the view that, down the road, one type of governing structure, in whatever shape or form, must be put in place for all the Inuit people who live in the Arctic, whether it is in Quebec, the N.W.T. or in Labrador? I am not talking about carving up the territory now, I am talking about governing. Do you see that as the next step? You do not have to answer that question.
Ms Dewar: I cannot.
The Chairman: It is already happening. That is why I am raising it.
Ms Dewar: That was the case many years ago. It existed in the time of our ancestors, and it can happen now -- that is, if people are willing to sit down and work together.
The Chairman: Do you personally feel that what we almost lost is beginning to come back to us slowly?
Ms Dewar: I think so. I can see the people interacting with each other much more than before. They are much more open to one another's ideas, to sharing resources, and to sharing different ways of doing things in their own regions. With our common language, we have a bond and connection with the other Inuit in the Arctic. That bond is a reality. We want to share things and we want to tackle our problems together. There is a solidarity amongst our people.
The Chairman: We all like to live in harmony and work together, and so on. However, no matter what society lives on this planet, there is a certain amount of discrimination. There is also discrimination amongst ourselves. At times, we do damage to ourselves when we should not. Do you feel that, down the road, we need to be able to protect ourselves from ourselves? Do we need something like a Bill of Rights?
Ms Dewar: Yes; I think so.
The committee adjourned.