Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 7 - Evidence - Meeting of May 25, 2009 - Morning
WINNIPEG, Monday, May 25, 2009
The Standing Senate Committee on Aboriginal Peoples met this day at 8:58 a.m. to study the federal government's constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Metis peoples, and other matters generally relating to the Aboriginal Peoples of Canada (topic: issues pertaining to Indian Act Elections).
Senator Gerry St. Germain (Chair) in the chair.
[English]
The Chair: I call the meeting to order. Good morning. I am Senator Gerry St. Germain from British Columbia. As Chair of the Standing Senate Committee on Aboriginal Peoples, it is my pleasure to welcome you to today's hearings.
First I wish to acknowledge the Treaty 1 First Nations on whose ancestral and traditional lands we gather today; lands where my Metis ancestry also settled before Manitoba entered into Confederation.
Please allow me to introduce the members of the committee who are present: On my right is Senator Lillian Dyck from the Province of Saskatchewan. Next to her is Senator Robert Peterson, also from Saskatchewan. Next to Senator Peterson is Senator Sandra Lovelace Nicholas from New Brunswick. On my left is Senator Daniel Lang from the Yukon, and next to Senator Lang is Senator Elizabeth Hubley from Prince Edward Island.
Honourable senators, elders, guests and members of the audience, our mandate on this committee is to examine legislation and matters relating to the Aboriginal Peoples of Canada generally. On April 1 of this year, the committee decided to launch a study to examine the issues related to Indian Act elections. The committee is looking at outstanding concerns related to the two-year term of office for Chiefs and Councils as currently prescribed by the Indian Act. The Senate committee is here in Manitoba to seek the views of First Nations' leaders and citizens regarding what changes, if any, should be made in the areas to strengthen governance for First Nations and political accountability.
Our role then, as a Senate committee, is to consult and to listen to what First Nations citizens have to say, and to work together — and I repeat — work together towards finding better ways to help First Nations' communities to determine better governance relationships for the citizens and their government.
It is important to note that 252 First Nations' band council governments conduct and hold elections in accordance with the Indian Act. This is roughly 40 per cent of all First Nations in Canada. The committee's elections study is primarily concerned with these First Nations whose elections procedures are governed by the Indian Act. The other 350-plus First Nations select their governance leaders as a result of self-government agreements, or follow other leadership selection mechanisms such as heredity or clan systems.
To discuss this topic, the first witness before us this morning is Grand Chief Ron Evans from the Assembly of Manitoba Chiefs. Welcome, and thank you for being with us, grand chief. We know the AMC is very interested in the issue of elections under the Indian Act. I understand that you have a presentation for us. It will be followed by questions from the senators, if you are prepared to respond to them.
You have prepared a brief summary of your presentations. Senators, I need your approval. It is only in one of our official languages, English, and so I need the approval of the committee to circulate this document. Is it agreed?
Hon. Senators: Agreed.
The Chair: Thank you.
Grand Chief Evans, the floor is yours.
Ron Evans, Grand Chief, Assembly of Manitoba Chiefs: Thank you, Mr. Chair. Thank you, senators, for the opportunity to address this committee in my role as Grand Chief of the Assembly of Manitoba Chiefs.
My remarks to you today are designed to address the terms of references of this committee and inform committee members as to the current thinking and work of Manitoba First Nations in this area. My remarks to the committee during this hearing should not be construed as a formal consultation with Manitoba First Nations and do not take the place of a formal consultative process. Manitoba First Nations expect that a formal consultative process will be undertaken if and when the Government of Canada chooses to proceed with any of the recommendations that may arise from the work of this committee.
Last year, the Assembly of Manitoba Chiefs established a Leadership Council with seven working tables as one of its key initiatives to address leadership and governance issues in Manitoba First Nations. The Chiefs Governance Table, as the first working table, has been given the task to recommend the required actions to establish a standard term of office and a common election day, or election time period, for all Manitoba First Nations. We are convinced that these two key changes in the current election process would provide the first step in building the stability required for sustainable and consistent capacity development at both the macro and the individual First Nation levels. These changes would also demonstrate significant commitment by Manitoba First Nations to addressing First Nations governance issues.
Historically, Manitoba First Nations were prevented and discouraged from developing effective governance structures and decision-making frameworks by the procedures imposed by the federal government through the Indian Act and its related regulations. Even regularly organized meetings were discouraged and, in some cases, were actually prevented from happening. This clearly limited the development of leadership capacity and the establishment of effective governance structures. It was the Indian Agent, representing the Government of Canada who, in effect, controlled our agenda and, as recently as the early 1970s, prevented the development of First Nation leadership and self-government capacity required to address the serious issues facing us as First Nation communities.
The development of stability and unity, under the umbrella of governance and organization, requires joint planning, strategic thinking and a mandate to act. This, clearly, was not possible or even encouraged in our most recent past.
Our current electoral system, the electoral system that we currently have in Manitoba's 64 First Nations is as follows: There are 37 bands under the Indian Act Electoral System, while the remaining 27 bands are under custom; thirty-seven have a term of office of two years and have elections at different times, while twenty-five can have elections at any time with terms of office ranging from two to five years. There are exceptions with one or two communities that can actually be in office for several days. That is the way their custom code is; that is their practice. There are two communities that have hereditary chiefs. In 2008, 33 bands had elections. Twenty more bands will have elections in 2009.
The deficiencies for collective and sustainable decision-making and leadership are many, and have very serious implications for leadership and accountability. These deficiencies are: Elections held every two years with no defined schedule or election period — two year mandates which have been shown to be detrimental to developing good governance practices, hinder long-term planning and prevent assessment of performance against objectives/outcomes; constant turnover of chiefs and councillors, which hampers opportunities for long-term strategic planning on a province-wide level; a cumbersome election appeal process, as currently managed by INAC, which often takes several months and sometimes up to a year or more to resolve; an excessively long and expensive election period — three months — with a requirement for mail-in ballots to be sent to all off-reserve band members, no matter where they reside.
The two-year election term is not long enough to give a new chief the time and the opportunity to meet the expectations of the community that he or she leads, to prove to the community his or her leadership abilities, to fulfill community needs and build the necessary work networks. The two-year election term is not long enough to truly build the leadership potential of the chief and council and implement the necessary long-term strategies for sustainable leadership. As a result, control and leadership are given to others outside the community, thus increasing instability and diminishing credibility within the individual communities, other levels of government and the private sector community.
Electoral reform: The electoral system reform, in which the term of office is extended to four years and elections are held on a common date or electoral period, would have the following advantages: It would build political strength, unity, credibility and influence with regard to all other governments and private sector entities; it would establish the continuity of leadership required to sustain and build common purpose of action to develop economic power; it would build a stable structure that would build cohesion for progress in all aspects of First Nations development, including economics as well as social and educational areas; it would build a more effective and economical electoral system in terms of the cost implications through standardization of formats and communication materials; it would establish the necessary certainty and predictability for the formation of effective, long-term strategies to address the ongoing needs of the individual community and Manitoba First Nations as a whole. All of these advantages will provide the capacity to visibly improve First Nations living conditions, provide stability within and outside our communities and improve the quality of life through improved and more effective governance structures and stable election terms.
The current status of implementation of the standard term of office and a common election day: With the full support of the Chiefs-in-Assembly, the AMC is engaged in identifying the steps which would allow all First Nations communities in Manitoba to hold community referenda and pass Band Council resolutions to implement a four-year term and a common election date or election period.
The model for development and implementation is as follows: First, at the present time, 26 of 64 First Nation communities in Manitoba hold elections under their own custom election code. These bands could implement both aspects of the program immediately.
Second, 37 of 64 First Nation communities hold elections under the Indian Act. These First Nations could, in fact, implement a common election day and an extension of the term to four years if they each had their own custom election code in place.
Third, the Chiefs-in-Assembly, by resolution in January of 2009, had asked that: The AMC develop a draft common election code which could be used as a template for each First Nation to develop their own custom election code; the 37 of the 64 First Nations communities currently operating under the Indian Act hold referenda to consider, accept and implement their own custom election code under the protocol currently in place under INAC regulations. The results of the referenda could then place, at the very minimum, a majority of First Nations communities in the position of implementing a common election day and an extension of the terms of office to four years.
Timelines. It is anticipated that: The draft template of a custom election code will be developed by mid 2009; the Indian Act First Nations communities would be in position to hold a referendum on the acceptance of their own custom election code by late 2009; a collective decision on implementation on a common election day and extension of term could be made by early 2010.
The appeal and recall process: A common concern of First Nations' members in the implementation of a longer term for chiefs is the recall and appeal processes. A questionnaire, distributed at the July 2008 Chiefs-in-Assembly meeting indicated clearly that any electoral reform involving an extension of the common two-year term to four years would have to include more effective appeal and recall procedures. Preliminary work in drafting a template common election code with regard to this topic suggests the following:
The appeals: chief and council, through an open and transparent process, could establish an independent committee of between three and five persons to oversee the appeal process and make decisions. Appeals would be submitted within 30 days of the election by affidavit.
Recall: A recall mechanism could be established that allows the question to be put to the community as a whole as to whether they want one or more members of council to continue in office until the expiration of their term. This question could be addressed either by petition, with a threshold that would clearly demonstrate strong community support, or by community vote. Similar to the appeals mechanism, the independent appeals committee could oversee a recall process including the administration of a recall vote.
Flexibility in Implementation: Individual First Nations could determine whether a full community vote on recall is necessary, and establish defined criteria for triggering recall. Clearly, more work is required in this key area. A consultation process of Manitoba First Nations is necessary to outline the details of these two processes and ensure that community concerns are fully addressed prior to any changes.
The balance between on-reserve and off-reserve interests: In August 2007, the Federal Court of Canada ruled that subsection 75(1) of the Indian Act violated section 15 of the Canadian Charter of Rights and Freedoms. A clarification from the Federal Court of Appeal in May 2008 stated that the subsection violated the Charter to the extent only that it prohibits electors who do not reside on the reserve from being nominated for the office of councillor. The result of these two judgments, known as the Gull Bay decision, is simply that candidates for councillor positions are no longer required to reside on the reserve. It is important to note that this decision applied only to the 251 First Nations in Canada who conduct elections under the Indian Act, of which there are 37 in Manitoba. This decision makes it probable that band councils will include councillors not residing on the reserve. In some cases, particularly where the bulk of the voting membership lives off-reserve, there is a possibility that the entire council could be comprised of off- reserve members.
At this point in time, very few elections have been held since the residency requirement has been removed. Therefore, the impact of this removal on the make-up of band councils can only be predicted. However, it is reasonable to assume that First Nations with larger off-reserve populations are more likely to elect councillors not residing on the reserve, and that this type of council make-up will further impact overall governance.
In Manitoba, this decision is expected to impact the governance of 23 First Nations. Preliminary feedback on the Gull Bay decision indicates that First Nation members residing on reserves fear that removal of the residency requirement will result in less access to their band government and less attention paid on behalf of the council to on- reserve interests. Furthermore, there is a distinct possibility that non-resident members could be elected to the band council in numbers that would allow them to control decision-making.
The work currently being done by the AMC on the Common Election Code and extended term of office provides an opportunity to address the concerns raised as a result of the Gull Bay decision, primarily through mechanisms that ensure adequate on-reserve representation on a band council. At the same time, this also presents an opportunity for First Nations under a community election system to examine residency requirements in their election codes to bring them in line with the Charter. For more details about our current work in this area, please note Appendices A and B which are found in this document.
Senator Peterson: I am just wondering, if we were to make a recommendation — and I do not know how it would be, and we should discuss this further — that there should be a consultative process, where would it start? How would the process go? As you stated here, not everybody is in agreement. I am trying to get a sense of what the procedure would be. How would we go about it?
Mr. Evans: We would start with the 37 bands that are currently under the Indian Act, and we would begin working with the 37 to get them to agree with establishing or going along with the common election date and the length of term of office. If we were to start in 2010, it would be four years later that we would all be having our elections on the same day. That is because of the staggered election process at this time. It would not be, perhaps, possible to get all 37 to agree by 2010, but it would be four years in terms of the transition period that it would take to make it a reality that we all have our elections on the same date.
The challenge for us was to achieve the political will to do that. We already have the political will; the grassroots in many of the communities are in favour of it. There needs to be consultations, which is the next process, so that the leadership can then properly inform their electorate of the change and the transition time when it does happen.
Senator Peterson: You made the statement that if they each had their custom election code in place, the process would be easier. Would that be the first step in trying to get them to do that?
Mr. Evans: Yes.
Senator Peterson: Then that would give an indication that they want to move forward?
Mr. Evans: Yes. Sorry, which section are you referring to?
Senator Peterson: I am just on page 4, where you were talking about the 37 bands who hold elections under the Indian Act.
Mr. Evans: Yes, the 37 bands, yes.
Senator Peterson: Would your first thing be, then, to get everyone to have a custom election code in place?
Mr. Evans: Yes, that is correct. What we are doing is to get on-side the 37 bands that currently have their own custom election codes. The process that we are embarking on is to get them to agree to the same election date and the same term period, which is a four-year term.
Senator Peterson: Yes. On the issue of off-reserve/on-reserve residents, relating to holding elections, would it be possible to have some type of proportional number? Say, for example, you have more off-reserve residents than on- reserve. Take the number of 60 per cent off-reserve and 40 per cent on-reserve. The number of councillors would have to be proportionate. They could not all come from one group?
Mr. Evans: No, no. The process that we are currently dealing with, really, is only with the term, the common date, which is a four-year term. Everything else is up to each community in terms of how they want to run their own election code, their own system, as they do their own roads, for example. That is their right. They can put in their election code that there has to be so many council members from their community, and a representative from off the reserve. It is up to the bands individually as to how they want to draft their election code in that way.
The only thing that we are embarking on here is to bring all the communities to one common day, and to get them all to agree that, yes, we all agree to a four-year term, just to unify all the elections. It is no different than any municipal, provincial or federal election system.
The Chair: Just for clarification, the 37 bands that are now under the Indian Act, they would move to a custom election code?
Mr. Evans: They would move to a custom code, yes.
The Chair: So the Corbière decision would not apply. Corbière was the decision, I believe — although I am not a lawyer — that made it a necessity that in elections, off-reserve members would have the right to vote.
Mr. Evans: I will speak from experience on this one. I am not a lawyer, but I was chief in my home community of Norway House. At the time of that decision, we already had our own custom election code, which was for a four-year term. It is currently a four-year term. We are not one of the 37 bands. When the Corbière decision came down, we were "instructed," perhaps is the right word, to make our code Corbière-compliant for the next election. We had to amend our code to make it Corbière-compliant. We did not question that instruction at the time. Having now come to my present position where I am much more aware of what is happening all around me, I see that that was something that was clearly imposed upon us. It is up to each community as to how they want to be receptive to those decisions such as Corbière. Clearly, we made our code Corbière-compliant, otherwise we would have been challenged and we may have lost.
The Chair: Who would have challenged you, the department?
Mr. Evans: No.
The Chair: Who imposes such a test on you?
Mr. Evans: If we had not made our code Corbière-compliant, and some member of our band felt that we were impacting their rights, they could have challenged that and they would have won. That is the information that we were given at that time, which is the reason we agreed to make our code Corbière-compliant.
Senator Lang: In order to make the change, have you sought out any legal opinion that if the First Nations presently under the Indian Act go to a custom code, whether or not that particular legal decision would apply, because it does not apply to the other 25 bands?
Mr. Evans: That is what I am learning now, that it does not apply to the other 25. We did not know that at the time, and we certainly will, at this time, seek a legal opinion on that point. We simply did not try to challenge that opinion because we just wanted to abide by the decision of the electorate, to get away from appeals. We wanted to make sure that there was stability in our First Nation at that time.
Senator Lang: You state that 25 First Nations can have elections at any time, with terms of office ranging from two to five years?
Mr. Evans: Yes. I guess I overlooked one point on that. There is one community for sure that can actually have an election every day if they so choose. There is one community that has had, I think, about 30 chiefs in the last 10 years, only because they do not have a written code, so they have a custom. That is what they have done. It is a very unstable situation in terms of the leadership. That makes it tough to make decisions if you are a leader when you have an electoral system that operates under those principles. It causes much hardship to a community when it operates under those customs.
The right wording, perhaps, of that particular statement should have been anywhere from a couple of weeks to five years. Perhaps one or two communities operate under that kind of custom code.
Senator Lang: Just further on that, because we are talking about going from two years to perhaps three or four — and in this case it says five years — is there any First Nations communities here in Manitoba that have three, four, five year terms that are in place? If so, how stable are those communities and how well are they doing? That is why we are here, after all.
Mr. Evans: Yes, there are communities that have three, four and five year terms. There is one community that I know of that has a five-year term, although the fifth year is optional. Those communities are doing rather well. If you were to do some research in those communities, you would note the development of those communities. There is development; there is progress.
Senator Lang: I am just wondering, Mr. Chairman, if we could get a list of those communities so that we can see which ones they are, for our own information.
The Chair: We would not have that information. The Grand Chief would have to supply it, if that would not put him in an uncomfortable or untenable position.
Mr. Evans: It is common knowledge — it is public information.
The Chair: Very well. Our analyst here can possibly provide that information to us.
Senator Lang: In the document you provided us, at the end of Appendix B, and going through the headings and the possible contents with the way the process would work, vis-à-vis the appointment of the electoral office, the appeal process, and so on, I notice a lot of the recommendations say "may." In other words, it is very discretionary as to whether a First Nation would adopt it, or may not adopt it, or may change it or whatever. I guess my question is: why is it not "shall"?
I know, for example, at the provincial level when we run for office, the process is very clear, and it is a shall. There are no "mays" about it. You run, you follow this process and you adhere to this process. I would have a concern with the word "may" because where does that leave you at the end of the day when the final decisions are being made, and people need to know what the rules are?
Mr. Evans: This is why we were very careful in terms of how we made our presentation to you at this time because there needs to be a consultation process with the communities. Once the consultation process is completed, that is when we would more than likely change the wording to make it more firm in terms of how the appeal process, etcetera, would actually work. As I stated in my opening comment, we still need to have consultations with the communities. We want to make sure that they have their input. We do not want to be seen as having already decided, and as saying "This is what we plan for you." We want to ensure that the communities feel that they have had input, otherwise it is not much of a consultation at that point.
Senator Hubley: It certainly is interesting for us to be part of a process, or to listen to what your aspirations might be for governance and leadership and try to be of some help. I underline the word "try."
I have a question on the appeal and recall process and how you envision it. Where I have some difficulty is where you have an election and a chief and council is put in place, is the appeal and recall process then a safety net? I feel there has been some emphasis put on it. I think that is important to you. Does the election itself not have the effect of recall and appeal — in other words, the process of having held an election and having your members vote on the chief and on the council?
The other question that you might like to think about is that you had also mentioned that the chief and council could, through an open and transparent process, establish an independent committee of between three and five to oversee the appeals process and make decisions. I just cannot marry those two suggestions or ideas. One, I would like to know the necessity for the appeal and recall process under your system of government, and then two, how this body that is independent would be established to give you the support that you feel you need at that time?
Mr. Evans: Right now, I believe there is an appeal in almost every election that takes place. As to how we see this, again let me remind you that our whole purpose, or our first objective, is to arrive at a common election date and a common time period, which is four years. That is our first and foremost objective. Everything else is up to each community's sovereignty. They have their own autonomy; they are autonomous, so we are trying our best to stay away from making those kinds of decisions in terms of what they want to put in their own election codes.
When it comes to appeals and recalls, right now that is an ongoing concern for both leadership and its members. What we envision is an electoral officer, a First Nations electoral officer, who would oversee these elections. Right now, the appeals process is taking much too long, with INAC being responsible for overseeing the appeals. What we will attempt to do through our provincial First Nations electoral officer is to ensure that the appeals process is much more expedient. Perhaps communities should not need to wait too long to have their appeals dealt with. They need to be dealt with in a timely manner.
How do you marry the two? It is up to each community at that point whether they want to take part in that process within their election code. Do they want to leave that part about making those decisions to the provincial First Nations electoral officer or do they just want to keep it within their own band? We give them that choice. They can establish their own method, as most of them currently do.
I know my own community and others have their own appeal processes at this time whereby they can appoint other members to oversee that appeal process. Perhaps the membership itself might not be comfortable with having the chief and council appoint such members because they might feel that the chief and council could select people who might, perhaps, rule in their favour when an appeal is put forward. The community membership may decide at that point that they want to go for the provincial electoral appeals process, where it may seem to be more fair at that level. That is the option that we want to put forth to the communities. That is the reason for that wording.
As I have stated, we still need to go through the consultation process. That is how we envision what we want to present when the time comes.
Senator Hubley: Just to clarify, on the appeal and recall process, that has to do with how the election has been run, or does it mean that, after a chief and council has been elected, there is a process whereby people can air a grievance and maybe appeal a decision at that point? Or is it just in how the election is run? What is the scope of the appeal and recall process? Does it erode leadership in any way? Is it a challenge to the chief and council?
Mr. Evans: Yes. The recall process is put in place simply because there are communities that will have a concern as to whether they have chosen a good leader. If they have chosen a good leader, of course, that is not a problem, but if they feel that they have chosen bad leadership and they want to change it, that is when the recall process comes into play. That is what they have to consider. Having considered that, what they need to consider at that point, then, is whether they want to continue to be part of the provincial First Nations electoral system. That is the work, or the process, that still needs to take place. That is the consultation. That is the question that has to be put forward to the community: Does your community just want to be part of the common election day and the term of office? That is the main objective. But we need to put in place the electoral officer.
Further, we will ask them to consider whether they want to further amend their own band custom election code to make sure that they can actually participate, where their custom election code allows them to continue to be involved, with the provincial First Nations electoral officer, and all the responsibilities and ramifications that would flow from that position, which means to oversee their whole election system, the overall election system. Or do they just want to keep within their own autonomy, which they can actually do at this point. That is the choice that the community will have to make when the time comes for us to consult with them. Am I clear? I have to make sure that I am clear.
The Chair: For clarification, a chief electoral officer, as we know it in Canada or in the province, merely looks after the election process.
Mr. Evans: Yes.
The Chair: There really is no recall system. There was in British Columbia, but it was so cumbersome that it did not work. Is there any thought of having an ombudsman and a type of an auditor general structure that could be called upon, that could be set up with a chief electoral officer? You want this to come from the bottom up as opposed to being imposed from the top down. I think that is where the committee feels the same. In anything, we would like to believe that what we are doing is not imposing anything.
Historically, the Indian Act was imposed on our First Nations people totally unfairly. The results are there to be seen. What you are saying is that you will have a chief electoral officer that certain First Nations bands in Manitoba could seek, could be part of such a system.
Are you saying that this chief electoral officer would be part of the recall system, or would you have an ombudsman, and possibly another structure within the system, that would allow a First Nation, if they have that leadership, to seek counsel or what have you?
Mr. Evans: There would have to be a structure under the whole election system. There would have to be a provision in there for that purpose.
The Chair: Very well.
Mr. Evans: The chief electoral officer would just ensure that that process and those structures are adhered to. If the community chooses to be overseen by the chief, or the whole elections system overseen by the provincial First Nations electoral officer, all of those alternatives would be in place; would be built into the system. If you have a grievance, and you sense that something is not right, then you could appeal to that particular officer or office.
The Chair: How would you choose a chief electoral officer?
Mr. Evans: How would we choose one?
The Chair: Yes, because historically, the chiefs vote for the AFN.
Mr. Evans: Right.
The Chair: I have heard concerns about that. How would you establish a chief electoral officer?
Mr. Evans: We have not yet begun to think that one through. We simply have not arrived there. That is information, or that is input that we hope will be supplied by the communities in options for us to consider once we arrive at that stage.
Senator Lovelace Nicholas: My concern would be with the chief electoral officer: Should that person be known to the community or should it be somebody independent from the community?
Mr. Evans: Senator, there are over 60 communities. That person at least needs to be knowledgeable of the challenges facing the First Nations communities in this province. As long as that person knows what the expectations are, whether they should have any first hand knowledge of the community, I think that would be expecting a little too much.
I would refer back to my earlier statement that what counts is input that we receive from the communities at this point. That is why we feel that there is a stronger need to have a consultative process with the communities, to see what their thoughts are on the situation. If that is their wish, then we certainly must see how we can accommodate it.
Senator Lovelace Nicholas: Yes. Maybe there could be a training program for these people to learn the process at some point.
I have another question. It has to do with the on- and off-reserve voters. Do they send in their ballots or do they come in and vote? Is it a mailed-in vote?
Mr. Evans: Currently, they are mailed in. Currently, I think many of the appeals are based on the mail-in ballots because there are questions about those. That needs to be looked at. That is one of the reasons we need to find other ways to accommodate the off-reserve membership.
Senator Lovelace Nicholas: Yes. That is a big problem in my area as well. Do you think it would be a good thing not to even have mail-in off-reserve voters?
Mr. Evans: There are those who have certainly recommended other ways. We really need to look at those types of recommendations. Anytime that anyone raises an appeal based on a mail-in ballot, one has to really look at the validity of that system. We need to lessen the misuse of mail-in ballots or the potential for appeals in terms of trying to accommodate the off-reserve membership.
Senator Lovelace Nicholas: Do they choose for themselves? You mentioned that there are 37 band electoral systems. Do they choose to have that themselves? Like the 25 that have an election maybe every other day, or whatever, was that their own choice?
Mr. Evans: Yes. That is something that the communities had already chosen through their own history. At what point in time they adopted that system, I do not know. I am not aware of the dates, just the most recent ones. Again, with those First Nations, the custom ones, the 37, there is nothing prohibiting them from doing that now. There is no structure in place right at this point. There is no chief electoral officers or anything else at this point.
What we would ask them to do is, once the 37 bands have arrived at a vision, then the other 25 bands have an option to join and to participate. They would benefit from the structure that would be put in place as it relates to elections.
The Chair: For clarification, this Corbière compliancy that was imposed, there are still custom code elections taking place at the present time to which the Corbière case does not apply. Now, apparently, there is a regulation in INAC that any present band, First Nation, that is currently under the Election Act and seeks to go to custom code, they would need to become Corbière-compliant, according to this regulation. Is that correct?
Mr. Evans: I would think so. I would think that that would be correct. That is probably the regulation which is, again, one of the reasons why we, as a community, have agreed to follow this procedure, because of the likely successful challenge of a member. Again, we would certainly seek a legal opinion on that as we move forward. That regulation is likely still there because no one has challenged it, I am assuming at this point, but again, there is a need for discussion on this matter, to look at all the things that we should still need to consider in order to make this system work for our First Nations communities.
Senator Dyck: I want to follow up on the question with regard to on- and off-reserve members and voting. Are your concerns mostly related to the mail-in balloting system or are there other aspects to the on- and off-reserve members that you are concerned about in terms of elections?
Mr. Evans: In terms of elections, certainly the concerns are there in terms of trying to bring stability, first of all, to the communities; stable leadership, which then gives a lot of credibility to the communities. If we do not address the current challenges and concerns, then it only further increases hardship in the communities because you have these appeals hanging over the leadership and pretty much rendering ineffective the decision-making process until these appeals are dealt with. Not only does it create a challenge for the current leadership whose election is being appealed but also for the business community and governments. They are hesitant to do any business with that community until those issues are resolved. It further just hurts the community, and puts the community back. It consumes time, whether it is weeks, months or even years.
Your question was with respect to the mail-in ballots. It is not so much only the mail-in ballots, it really has to do with the whole system itself, whether it is the mail-in ballots, the appeal, and so on. It is not focused in one area, but rather, that we need to look at revamping the whole electoral system.
Senator Dyck: For clarification, when you say "off-reserve," do you mean Bill C-31 members who live off-reserve or do you include members who might be living off-reserve because they are going to university?
Mr. Evans: No, no, I am not concerned with people living off-reserve. First of all, I would never say that First Nations people need to live on-reserve. That is just not the right way to think. We are concerned with making sure that we are actually addressing the election system itself. We want to ensure fairness; we want to make sure that it is efficient, and we want to make sure that it brings stability and credibility. How we accommodate that, how we ensure that that all happens is that we have to change the whole system. The off-reserve people need to be accommodated; they need to be accommodated in terms of how they participate. Right now, the mail-in ballot is not doing that. It is causing concerns for the communities because of the challenges from appeals because of the way it is handled at this time. There needs to be a better way of doing it.
Senator Dyck: When we are talking about off-reserve members and about elections that are under the Indian Act, as opposed to those bands that have gone on and developed their own custom codes, it sounds as if, for those bands still under the Indian Act, the Corbière decision still applies with regard to off-reserve members? Is that not correct?
Mr. Evans: Yes, the 37 bands, and also some of the custom codes.
Senator Dyck: And some of the custom codes?
Mr. Evans: Yes.
Senator Dyck: On your page 6, you say that this decision is expected to impact the governance of 23 out of the 37 bands, if I am reading that correctly?
Mr. Evans: Which decision is that, the Corbière decision?
Senator Dyck: No, it has probably to do with the Gull Bay decision.
Mr. Evans: Yes, it has to do with the Gull Bay decision. The Indian Act stated that only those living on-reserve, residents on-reserve could be eligible to run for council. The Gull Bay decision did away with that. You do not have to be on-reserve to run as councillor.
Senator Dyck: Is that related to status in terms of residency, residency related to status or residency just related to living off-reserve?
Mr. Evans: That comes from the Indian Act itself. Under the Indian Act, only those resident could run for council. Actually, anyone could. You did not even have to be a status or First Nations to run for chief. Anyone could run for chief. That is the way the Indian Act was written up.
Gull Bay said that now anyone can run for council; anyone who is a member of that particular First Nations band. What we are saying is, under their own election code, when they participate, the question now becomes whether they have made provision in their code to ensure that there is representation from the off-reserve membership. It is up to the community to structure their own election code to ensure that there is fair representation for their membership who live on-reserve. You need to make sure that the people who live on-reserve also have representation, too, because you do not want a situation where the chief and council all live off the reserve, and then you have no representation on-reserve. By going to their custom code, it allows the community, the membership, to make the right decisions where everyone is included, where everyone has a representation on council.
The Chair: The question is would you establish an elections act, a provincial elections act, for First Nations people in Manitoba? I cannot, in my thinking, believe that a First Nation should be governed by people who do not live there. I have a strong feeling that people who live off-reserve should have representation because they still have ties, but the ones who are there, and have to live there, the governance impacts them more than it impacts the off-reserve people. Is there something that could be drafted? Are you thinking of drafting something in the style of an elections act that would determine how many on-reserve and how many off-reserve councillors there should be? Perhaps they could use such a draft as a guide if they did not want to make that decision on their own and establish that there would be a standardization. Do you think that that is possible?
I do not want to put you on the spot, Grand Chief, but somewhere along the line I am trying to formulate in my mind how such a system would work that would be fair to both sides and be functional.
Mr. Evans: That is quite possible. There is a need for that to happen. Depending on the communities, they need to take account of the size of their populations and how many of their members actually live off the reserve; what proportion of their membership lives off the reserve. Then the community itself can decide together how many seats they want to allow for each group. If it is a community that elects six council members, perhaps they could assign one seat for off-reserve members to run for that seat. That is at the discretion of the community. That is why we did not want to go there.
These are the things that we will be talking about with the communities when we do the consultations with them. The things that they need to understand are no different than what we are doing here, trying to understand the complexities of why we need to change. Many of the communities are perhaps not as aware as we are of some of the changes: The Gull Bay decision and how it can impact them; the Corbière decision, and how it actually impacts them; the Charter of Rights, and how it applies to each one of us. They need to be aware that the legal system can challenge their decisions, since it applies to each person. That is why there needs to be a consultation process. That is why they need to think about how they can get around that, so that they can strengthen what they have; so that when their electoral code is challenged, for the most part it can stand strongly on its own.
Those are the discussions that we must have with them, and what we want to go into the communities to talk with them about. At the end of the consultation process, we will come out of there with information, and leave communities that are well-informed on the need for change, the need to change the way in which we are currently doing things. The status quo just simply is not working for the First Nations communities at this time.
Senator Lang: I can see, Grand Chief, where there is a big question mark out there. When you start talking about elections, that is a pretty complex area. It sounds fairly simple when you start, and then you take a look at all the intricacies of it to make sure that things are done properly and can stand the test of time. It is not easy.
I just want to go back to where we started from here. My understanding is that your assembly, in concert with the present Minister of Indian Affairs, was at one point very seriously going through the process of looking at the question of elections, and the extension of the time period for chiefs and councils, and this type of thing. Then that particular process stopped.
Now you yourself as a grand chief, in concert with your membership, are going out on your own, without the benefit of Indian Affairs and Northern Development, looking at whether or not there should be electoral change and, if so, what it should be. You are looking at a custom code.
Have you made the decision that any changes that are to be made will be made through a custom code that will no be federally legislated? In other words, that you will not need the federal government for this, is that correct?
Mr. Evans: That is a matter of opinion. The reason I say that is, yes, we have made the decision to change the status quo simply because it is not working; simply because of the growing number of bad statistics with which we are currently challenged. We see the results. We see why we are having a hard time succeeding in turning those numbers around. However, we are going out to rectify that situation, and we still need to unify our electoral systems.
The leadership feels at this time that there are two things that we still need. We still want to reach our objective, which is to have an election day on the same date. We want to make sure that our terms of office are in line with one another so that we all have a four-year term. We can work together for four years, whoever is elected at that time. Those goals still need to be reached.
In terms of legislation, there are those who feel that we do not need legislation. However you look at it, we still fall under legislation, no matter whether or not we want such legislation. In the absence of our own legislation we must fall under someone's legislation. Legislation will only expedite what we want to do. Nevertheless, because of the decision taken at the assembly, we cannot allow that to prevent us from going down that road.
When we do our consultations later this year then we will be better informed as to what the communities really want. We will be able to get their support for that, and we will then deal with those issues once we have done that. If there is strong community support, then I would think that the leadership would need to respond to their membership in terms of moving in that direction.
Once we have concluded our consultations, then we develop the code based on the information that we receive. We then would take a collective decision, once again at the assembly, as to how we plan to move forward on implementing what we have put together in terms of arriving at a common election date and a similar term of office.
The third way would have been to have the minister continuing to support the process so that we could actually arrive at that place with the support of the minister's office, knowing the challenges, knowing the complexities of us moving down that road. Whether or not we say we do not want legislation, we are still under legislation of some sort. It is like someone saying "This is what I believe. I do not want to be part of religion." However, it is all religion when it comes to faith. Therefore, whatever we do in government, we are always under some form of legislation. We cannot escape that.
Senator Lang: Correct me if I am wrong, but my understanding was that the federal government was working in conjunction with the organization. Then you, as an assembly, made the decision that you did not need the federal government; you did not necessarily need the legislation. You were looking at a custom code, perhaps a provincial- wide custom code, to apply to your electoral process.
From reading what I have read, and being new here, what I see is that that is the route we seem to be going thus far, towards a general custom code or a community custom code, or a combination of the two. Then subsequently you would be responsible yourselves, as opposed to the federal government being involved.
Mr. Evans: I strongly believe that further discussion with the minister's office would have lead us to a different conclusion, simply because the minister's office and ourselves as AMC had agreed on a process. We had agreed on establishing a table, a leadership governance table consisting of seven chiefs. Working with his office, we always had representatives from INAC sitting at the table, in partnership and developing the process, developing the code as we were moving along. Then somehow, things got confusing to some, perhaps.
However, before the minister's office made the decision that we were not going there, there should have been some dialogue. We had established a process already. There should have been consultations done with myself, the leadership table, to talk about why we should reconsider, perhaps, the decision that had been taken. We never had that opportunity. It was assumed that we no longer wanted to be part of that process, which was not true. That is perhaps what led us to the understanding that is currently in place at this time.
However, we still need to move there. We still need to reach the goal, which is to unify our elections here in this province. Abandoning it, simply walking away from it, knowing the challenges that are there for First Nations communities, that would be irresponsible of us to just throw our arms up in the air and say, "You know what? This is not going to work. Let's just forget about it." That is just not how we are viewing things, as Manitoba First Nations leadership.
Senator Lang: Just redirecting my question again to the custom code. I do not know whether you can answer this, or perhaps the chair can answer it. I am wondering how the law in respect to a court challenge applies, compared to federal legislation?
Mr. Evans: Legislation can be challenged, but I believe the minister must ratify a change from the Election Act to the custom code. However, as a First Nation, I am sure you can challenge anything in the courts, but that is the process. Say there are 37 bands: Under the Elections Act in Manitoba, if they all wanted to go to custom code, if I remember correctly that requires the minister's approval under the Indian Act.
Senator Lang: If I can just pursue this matter just a bit, then, with the chair. Then, with the approval of the minister, that is seen as legislation and subsequently is dealt with in a court of law?
The Chair: It is not legislation; it is regulation.
Senator Lang: But it is seen as law in the court of law to which you would have to adhere, vis-à-vis the outline of an election process, if I challenge it as a First Nations member?
The Chair: I am not sure I understand your question.
Senator Lang: Where I am going is this: What standing in a court of law does that custom code have? Does that have the same standing as if you are challenging a provincial law or a federal law? This is your framework and it is set up to be fair. If it is not fair, somebody challenges it and they go to court, so the custom code then would be seen as legislation, like anything else, and dealt with accordingly in a court of law. Is that correct?
Tonina Simeone, Researcher, Library of Parliament: Senator, for instance, the Corbière decision applied only to Indian Act electoral bands. It did not apply to the custom bands, which has created some tension. I am not entirely sure that I follow your train of thought. If there were a custom code in place, an individual member of that First Nation could challenge the provisions of the custom code in the Federal Court, but it is not federal legislation, if that is what you mean, in the way that the Indian Act is federal legislation. It would not be federal legislation. The custom code would not have that status, but a member could challenge a provision of that code and go to the Federal Court. The Federal Court deals extensively with provisions of the custom bands.
The Chair: The grand chief says, regardless of what legislation is out there, it is still under the Indian Act until the Indian Act is either repealed or a new act would be implemented, because custom code is recognized under the Indian Act.
Mr. Evans: The communities, the 37 bands, can still go down the custom code route. It is just that it is a longer process. It is a very long process. That is why it was best to work with the minister's office so that we could ensure that we arrived much more quickly at where we wanted to go.
The Chair: For clarification, when a First Nations band goes from elections under the Indian Act to elections under the custom code, they are no longer under the provisions of the Indian Act, so far as elections are concerned. They set their own terms of reference.
Senator Lang: That was my question. When a First Nation sets up a custom code, then that is seen as separate legislation for the purposes of a court to deal with it, I am presuming.
The Chair: No. Any appeal under that custom code would be done through Federal Court, but that code is not viewed as legislation as such. It is an existing situation more than it is legislation, as far as my interpretation is concerned.
Ms Simeone: That is right, they remove themselves from federal legislation for the purposes of their elections.
Senator Lang: Right, I understand that.
Ms Simeone: There is no legislation.
Senator Lang: I hate to belabour this point, but I think it should be clarified, because my understanding is that the custom codes replace the provisions of the Indian Act as far as the electoral process is concerned. Now we have this custom code here. I want to get this clear in my mind. If I am a First Nations member and I want to challenge that code, then that is seen by the court as basically legislation that they deal with to see whether or not my rights have been infringed upon. It must be seen as the law, on the basis of the law, because the federal law no longer applies. Is that correct?
Ms Simeone: In a sense, yes, they will look at the code. The decisions that have gone to the Federal Court have been around charter compliance, you are right. Say, for the sake of argument, that I am an off-reserve member, and my custom band does not allow for off-reserve voting rights. I challenge that code in Federal Court. Therefore a lot of the decisions in the Federal Court have been around those types of issues. In a manner of speaking, I suppose you could see it that way.
The Chair: I think, if you want to call it legislation, you can, but I do not think it really is. It is an existing situation that is there that it is challengeable in the courts. It is not written. I would imagine that some bands may have a written custom code.
Senator Peterson: Sir, when you started your presentation, you said that there are really two issues we are dealing with here. One is a common election date and the other one is a four-year term of office.
Mr. Evans: Right.
Senator Peterson: I trust that this flowed from the resolution in January of this year by your assembly to do this? When would you hope that you would have this complete? Are you given a time line?
Mr. Evans: Yes. First of all, the resolution in January is only one of a few resolutions that instructs my office to assist the communities to move in that direction. The resolution in January only instructs us to make sure that there are community consultations and that there are referendums. The goal was to actually begin this fall, in the fall of 2009, for the communities that were in a position to start unifying some of them at this time. There was a four-year transition period.
The reality of that was, if we were successful in being able to do that this year, this fall, or even in 2010, let us say we get some of our communities on board in 2010, then the reality for all 62 First Nations communities — with the exception of the hereditary communities — would be that they would all have their election date. We would all be holding our elections in 2014. That is the transition time period.
We would have some communities that would actually fall into that date. Then in 2014 we would all have our elections. That was the need for the minister. That is why we needed the minister's office. However, because the elections are staggered throughout the whole year, we needed the minister's office to either grant extensions to term of office in some communities, or we just needed the minister's office because if someone is elected in a community, let us say someone's election period ends — let us say we have an election in March and someone's term ends in that January, what happens in those two months? Or someone's term ends two or three months after march, let us say June is when their term expires, what happens to those two or three months that they are supposed to still be in office? Those were the two kinds of problems. That was where the need arose for us to make sure we had the cooperation of the minister.
I am hoping I am answering your question, but that was the plan. That was always the plan, to begin implementing our goal by this fall. We now must move that goal to 2010.
Senator Peterson: Are there any other jurisdictions going through the same process, that you are aware of?
Mr. Evans: I think the Atlantic chiefs are going down that road. I think they are doing that. We still need to work with them, or we were supposed to have gone down there and explained to them where we are at with our process. However, I am hoping that someone down there is going forward on this plan.
Senator Hubley: When I reviewed the reform and the hope that a lot of issues would be resolved by stretching out the term, I am just wondering how you arrived at the four-year term. I think in most jurisdictions, in other municipalities, it is four years provincially. They have moved in that direction, so that might be the way to go.
I still have a problem with jurisdiction. As a chief and council, you will be elected and you will be challenged with looking after or delivering the services for that First Nations community. If you are also dealing with off-reserve issues and members at that point in time, do you see any way of bringing them together, to involving them, but letting the community itself, or the spokesmen or councillors within that community, deal directly with the issues of that community?
The one thing we have not discussed a great deal this morning is culture, and how you see the development or the continual development of your culture throughout your nation. I see that there is a strong relationship there to involve off-reserve and on-reserve members. I did not know if there might be a way of marrying that within your council so that there would be an involvement, but I also feel that it would be nice to have the parameters that, as a councilor, and in dealing with an issue such as perhaps sewer and water — and I know that that is within a defined area; I know that there is someone else dealing with the same issue on the other side of that area. I am just wondering whether any of those thoughts have been part of your discussions?
Mr. Evans: We still need to get into those discussions. I know that many of the communities are up working and are currently dealing with the off-reserve membership, with whatever means or resources are available to them that allow them to do that.
Again, in order to respond to the part of your question about culture and the need to include the off-reserve members, that is where the challenge lies in terms of First Nations leadership at this time, given the limited resources that we have and ensuring that we can meet the needs of the off-reserve membership. There are many jurisdictions. There are many conditions placed upon us in the agreements that are signed with the federal government that actually make it very difficult for First Nations leadership. That is why we need to examine and explore as to how we expand the role of chief and council in terms of how they deal with their off-reserve membership. We should not actually corral people into a position where they must live on a reserve. In other words, because I choose to live off the reserve, that means that I am no longer eligible for certain benefits, for instance. It is very limited as to what the communities have in trying to develop their people within the communities and, at the same time, trying to meet the needs of the people who move off the reserve. Because one is First Nations and has Treaty status should not limit one to living on-reserve.
Those are the things that need to be considered and factored in when we are negotiating agreements with First Nations, to deal with culture, to deal with language and everything else that stem from the devastating impacts of the residential schools.
Again, it goes back to family. We need to put a lot of emphasis on strengthening the families, on dealing with the dysfunction within the family itself and what that dysfuntion has created. Those are the challenges, when we talk about culture, when we talk about language, spirituality, and everything else, in terms of who we are as a people.
That is why we must get away from the situation in which we are now. We are in this situation because of the very fact that there were attempts made to ensure that we did not succeed. That is what you do: you divide and you conquer. That is what our election system is currently doing. We are unable to move forward at a pace that allows us to regain the very things that were lost.
Again, that is why there needs to be a great deal of cooperation, understanding and support for us to rebuild our unity, our governance and everything else that is rightfully ours.
Senator Dyck: I notice in your handout that you say two First Nations have hereditary chiefs. My understanding of that would be that these are First Nations that have never been under the Indian Act with respect to their elections. Is that correct?
Mr. Evans: That is correct.
Senator Dyck: It has been suggested that perhaps one of the best ways to move forward would be to opt to revise the Indian Act so that it no longer controls elections for First Nations, so that you would essentially have your own control, if the Indian Act did not cover it?
Mr. Evans: Yes. Well, we are trying to do that. My personal preference, of course, along with those who support our move, is that we really want to get out from under the Indian Act and not be connected to it in the area of elections. I know that the minister's desire was to have a Manitoba First Nations Election Act. I certainly do not have a problem with that, the way I understand it, the way that I see the challenges for that, but that is not for me. When I state that, I need to ensure that the people whom I represent, the First Nations leadership, support it. At this point in time, the support for that is just not there. That is not to say that it cannot happen in the future. It is just that there needs to be more discussion and more dialogue, and hence the need for the minister to continue to cooperate and support the process.
Senator Dyck: You are saying that the process that is being supported now is to go the custom code route?
Mr. Evans: That is correct, yes.
The Chair: I know what a balancing act you are under to try and effect something that does not appear to be top- down; it appears to be coming from the bottom up. I thank you again on behalf of the senators. We have received your information and suggestions concerning the subject at hand. Your testimony has been excellent and informative, and extremely helpful, I believe, to the committee. Again, I wish you well, because I know how challenging this all is and how important governance is. Right across North America, where any studies have been done in regard to improved governance for First Nations, whether it be in Canada or the U.S., they have improved. Those that have opted for good governance have improved their economic and social status considerably. It also enhances their ability to maintain their culture. Thank you very much.
Senators, our next witness is Chief Donovan Fontaine of the Sagkeeng First Nation. The committee was particularly interested in your views, chief, as we are in the process, as I believe you are in the process, of reverting to the custom elections code from the Indian Act elections process. Without further ado, the floor is yours, sir.
Donovan Fontaine, Chief, Sagkeeng First Nation: Good morning, Mr. Chair and other members here.
Yes, we are in that process. We actually had our election on April 3. We had a regular Indian Act election. On that election, it is a mail-out process, taking six weeks. On the mail-outs, we sort of piggybacked. We included a referendum there in our community as to whether we should change the term of office to four years, and other things in the election code. We also attached an election code to that mail-out. That was okay, we were able to do that. It was passed, I do not want to say unanimously, but it was passed. I think two-thirds agreed that we wanted a four-year term, and to look at other options, like perhaps having six councillors as opposed to their traditional four council members. There was quite a few details in there. That referendum actually just said that we should proceed to do that. It did not say we will have that for our next election. It just said the committee wants to look at that, and do that. Does that mean that we want another referendum? Does that mean that we need to ratify the current election code? I think it is kind of a gray area, but our community does recognize two years as being very insufficient. Two years is too fast.
We talk about a stimulus budget. In our community, every second year is a stimulus budget. If you want to get re- elected, that is the reality. You talk about pinching pennies and being financially and fiscally accountable. Those things, along with democracy and everything else, are very tough. It is a challenging situation, at best, and it happens in many communities.
I know we are in third-party management for about eight and a half years. For us to get back into a system where we again have total control, I find it dangerous to our community once again because there are significant matters occurring within our community right now, such as claims and a lawsuit against us. That is a cloud that is hanging over us. Wing Construction is one case that was national, and they are suing us for $10 million.
I am always weary about the situation with stability. Every second year, because of the lack of stability, our governments cannot proceed and handle these things with, I would say, a consistent vision, a consistent plan for our community. It is always changing, so having elections every two years is ludicrous.
The provincial government or the federal government, I cannot see them having an election every two years. It would be too crazy, too expensive, too costly. There would be division, there would be dissension and everything else. We see that in our community every second year: dissension.
For the election process to take six weeks is too long. I know that was implemented because of Corbière, to reach the people out there, the mail-outs and all the other stuff. I realize that is why they throw another two weeks into the traditional four weeks. Six weeks is too long. Talk about spending again, talk about stimulus again, a lot of damage can be done in six weeks if there are no controls and measures in place for any community in terms of finances and approvals. That seems to be when the question of housing and other things are rolled out, and all these other commitments, around election time.
By the very the nature of the funding, too, with the government, and how things flow, you have seasonal construction, then winter, and then you are looking at spring again, so it is very hard to run a community. It is hard to plan a future for a community when you are always looking at only two years. It is really just one year, because your second year is how I described it, so you really have only one year. In that one year also you are looking at catch-up, you are looking at orientation, you are looking at figuring out what the previous chief and council and administration did, so for the new chief and council that first year is really an introduction to government, an introduction to First Nations Politics 101.
Bill C-31 did not make matters easier; in fact, it made things worse. Basically, it gave us more Indians but no more resources. We are probably more accountable than the mayor here, than the premier. Nobody has 24/7 access to their mayor or their premier. There is just a big layer of bureaucracy that you must get through. With us in the First Nations, we are right there; knock on the door, we are there; pick up the phone, we are there. That makes a big difference. We are expected to do so much. We are expected to do $10,000-worth of work with $10 from government. It is very challenging.
As with Bill C-31, if you look at all the policies that have been enacted throughout the years since the Treaty, we are expected to stay in this corral, as one chief put it way back when. He said, "We are like cattle, corralled in the reserve here, and we are not allowed to go out. When you stray out, you must come back in." The chief said, "I used to go to Ottawa and ask for some food, some hay for our people." In those basic terms, that is the analogy that we use. Until just recently, of course, we were not allowed to vote and to do a few other things. That policy of staying on the reserve, not being allowed to get your education, not being allowed to vote, all those things are very detrimental. Basically, what is that saying? Stay in your reserve. This is probably more brutal for a community of, say, 100, 200 people: Stay in your community. Procreate, have children, expand, stay within your families. You would not do that to a Hutterite community. This happened in our communities of 100 or 150 people.
This whole government reserve system, I do not know where the model came from — perhaps Africa or wherever. It is time to abolish that. It is time to abolish the Indian Act. The policy is antiquated and it is time to change. It all goes to governance. It goes to two-year terms, it goes to recall, it goes to accountability. All those things have to be in place.
The process, how we are selected, is costly and we want to put it right. We always find that there are appeals; after every other election there is an appeal. It has to be done right but we want to do it ourselves. We want to govern ourselves; we want to maintain our own government systems. We want to have a constitution. We want to maintain membership and citizenship. It goes hand-in-hand with sovereignty and nation to nation.
Even right from the signing of the Treaty, the chief was often looked at as royalty, as head of state. That is how those agreements were administered, were undertaken. Treaties were signed on that basis, royalty to royalty, the Queen to the chiefs. The word "ogemah" in our language is like "king," and that is how it was seen.
Today we are viewed as being merely symbolic. We still maintain the traditions and the customs. We put on the headdresses and that is highly significant in our communities, the eagle feathers, and we still maintain that part of the past. Really many view us as agents administering poverty, Indian agents administering poverty and putting out the fights, putting out the fires — literally putting out the fires. Our housing situation, you all know what that is like.
I know that we wanted to pursue a four-year term in Manitoba. I sat on the council — I still sit on the council, the leadership council of the Assembly of Manitoba Chiefs. It was for those very reasons that I talked about earlier: stability, maintaining progress, maintaining the same vision for at least a number of years, having the same chiefs at the same table for a number of years, so that there is not always this orientation, this backtracking, taking one step forward then three steps back. We need to orientate this group of chiefs. There is dissension. With the two-year term, it is hard to maintain that group of people with a common vision. I think you can do that for over four years, build a good strategy, build a good approach and then build implementation and follow through.
One of the wrenches in the whole process was over this issue on sovereignty. Why must we need to ask the government to do that? This came up at our assembly in Long Plains. A couple of chiefs voiced their concerns as to why we were seeking legislative reform. Why not just get an amendment to the Indian Act? The whole thing is that we want to get out of the Indian Act.
My comment to one of the chiefs was, if you are under custom, if you are traditionally sovereign, you are under custom. When you have a vote in your community, where do your results go? They go to Indian Affairs, regardless of what process is involved. You still need that government-to-government, I said. Is that not what we are seeking, a recognition? It is as though they do not want any recognition, anywhere. They just want to maintain the status quo. Well, excuse me, where do you get your funding, or some of your funding? I know it is neither here nor there, but if it is funding, where do you get it? You get it from the government. I think you cannot have it both ways, was basically my message.
At least if we can agree on two things, a four-year term and a common election day, the rest, all the little particulars, the recall, all those fine details, can each be adapted to the uniqueness of each community: the recall or accountability, the election process itself, how to engage the off-reserve members — all of these things in each community would be different.
I would be different from the Dene up north. My community is an hour from Winnipeg. At some point, I guess those things would be looked at. I do believe it is almost an even split right now. In Manitoba, 27 bands are custom and 37 are Indian Act.
The further we get away from the Indian Act, I think it bodes well for all the other things. It goes back to our sovereignty; it goes back to us being Crown to Crown, government to government, or whatever. It goes further in that way, and even gets us away from being an Indian agent.
I hold a position of great honour. I recognize what the ancestors before me, the chiefs before me went through, and I know things are probably going to get worse if we do not make the changes in the right direction. The way we have been going, it has been a process of slow erosion. The erosion after erosion of every right, piece by piece: This is not covered anymore; that is not covered anymore. It is a slow erosion. Rather than pull the wool over your eyes, they pull out a few threads at a time. That is the way it has been going.
I believe in independence. I believe in our people, and that we can make a contribution to Canada. Our population is booming. I do believe 60 per cent are under the age of 25 or 30. We want to be of benefit to this great land. We have so much to offer if given the chance. I have always said that. If you give them the chance, give them resources. It is easier to put someone through university than to incarcerate them and keep them there for eight or ten years. Give them the guidance, give the communities the support, through university training and trades.
That is why I say, sometimes you need to break the corral and let the people feel that they could come and go in society. I know we all want to go back to the reserve. That is where the bones of our ancestors are. That is where we want to ultimately rest. I mean, we can come and go, and people need to feel that the reserve is not the be all and end all, but there has to be supports for them.
This, then is the challenge: our people who are out there as well, to us, they feel as though they fell through the cracks in society, despite the so-called safety net. A lot of my people are on the homeless lines here in Winnipeg, the food banks, the shelters: a lot of people are there. Winnipeg, of course, being the largest reserve.
There are probably about 2,000 of our community members living here in Winnipeg, and many of them are in the core area, so the challenge is off-reserve as well. We do not get funding for them. We get 10 per cent funding. I think it works out to 90 per cent funding for on-reserve, 10 per cent funding for off-reserve. That 10 per cent covers some of the post-secondary stuff.
The myth out there is, "You get funding for me. When I call, I expect to get it." Those are the demands of the people out there. They think we get funding for them, but in reality we do not. I cannot build a house downtown here with band capital money. I just cannot. However, that is the perception. There is a myth out there that we get all this money. That goes as well for the taxpayers' myth: We do not pay taxes. It is a vicious cycle. That is what we are up against.
With regard to stress, I do not know what stress means anymore. I am past that point already. Overburdened, overextended — I am past that point. I just keep going. There is only one gear I have, and that is going forward. I am optimistic, I am hopeful. I think there are good people in government now. I see a light at the end of the tunnel. Senator St. Germain and others here, I know they, and you, have been working hard to try and make changes, but change not for the sake of change; change to make a difference, to include those things such as accountability.
We do not need something like CAP, the Congress of Aboriginal Peoples, yelling behind our backs and then turning around and cozying up with the government and getting all the funding and all the posh appointments that come out of the pork barrel politics and all these other things. If we are to be accountable, we will say it to ourselves: We need to be accountable, and I can say that to myself.
We are trying to do what is right for our children, our communities, our future. As I said, the reserve system has not worked. We must do something different. We need a new way to do things. All of the development that is about to be happen in this great country will probably be on First Nations lands, and we must be part of the equation.
I heard some wonderful things were happening in some of the communities up in Alberta that are wealthy, but that cannot happen at the expense of the environment. Looking out for the environment was traditionally our role, our stewardship role. Therefore we must try to maintain a delicate balance in developing our lands for our people, for developing the benefits for our people, and not just pick-and-shovel jobs, either. Some real benefits, some real royalties, some real share in these activities that are happening on our lands in conjunction with industry.
In our area alone, we have forestry, mining and hydro, just getting wealthy at our expense. There are six dams right from our community, right from the mouth of the river, right up to the Ontario border: six active dams. Our lands are eroding. We try to get help from Indian Affairs and they tell us, "Well, it is hydro's responsibility." Section 95, I do believe, says that Indian Affairs has to protect lands for Indians and other First Nations peoples, but we get little assistance from them. Another thing that always happens in that respect is the provincial-federal jurisdictional battle. That is one example. It is our erosion but who is responsible? The province, the Crown corporation, hydro or the federal government? These are just some of the things we are up against.
With respect to the natural resource transfer, again, the carpet was pulled right out from under our feet on that one, and we are left. I also know there will be challenges to the changes, the amendments they are proposing to the Navigable Waters Act. Those amendments talk about small projects, but I heard now that you can break up a project into 10 little pieces and you do not have to go through any environmental assessment processes and the other different things. These are pretty challenging and frightening times, in that respect, also.
Change is good, as I say, but it has to be done right. It cannot be prescribed anymore. It cannot be something that is handed to us when it is complete. We need to be fully engaged in that process. We need to put real meaning into the section 35 consultation process. The act says to do this, but that does not really mean a lot. Delgamuukw and all these other cases talked about engaging and accommodating the interests of the First Nation, but it needs to go further. The government here has been saying, "Yes, we are consulting." Sure, we had a cup of coffee. That meets the standards, you are consulting, we had a cup of coffee, we had a meeting. In the end, we are still left in the same position. I believe in change, but I believe that we must be at the table for change.
I know the grand chief. I do not want to echo some of the points that the grand chief made, but I do believe that changing the election system will help. It will not solve everything, but it will help. The danger, some people say, is the chiefs are setting up themselves for a nice, cushiony position for four years. That is not it. The process has to be sold through public relations in such a way that the members see it in the way that we see it, as stability and continuity. Therefore, I think it is a step in the right direction.
I know some communities have hereditary positions. I will share this with you. I was in B.C. at one time, and after this meeting I attended a social event. A friend of mine invited me out to a social event. We had a get-together. I saw a few young chiefs from B.C. doing some things that I probably would not be able to get away with if I ever did it in my community, or my home province, or in Winnipeg, or anywhere. I asked, "Are these guys chiefs? Is this guy a chief?" The answer was "Yes, he is hereditary." Well, that explained it. I would never get away with that because I am elected. It goes back to honour. I think respecting custom, respecting hereditary chiefs in positions are some good things. But then, if there is no recall, zero recall, I sometimes have mixed feelings about that one.
With four year terms, our people always said, what if you have a council, a leadership that is not the greatest? Then that puts the onus on the community to elect good people, because four years is a long time. But how can you put the onus on them to elect good people if the process is faulty, if it is flawed? That is why I say it has to be done right, it has to be done well. In order for the people to make knowledgeable decisions, they need to know all the issues that they are voting on. They need to know what each and every candidate brings to the table.
There is another extreme where it is overdone. At least, I thought that ours was overdone. We had about six or seven candidate forums, which is way too much. I thought it was very good, but there needs to be rules on this process. The whole process needs to be looked at. An election process of six weeks is too long for little communities. Let us take the case, for example, of Shamattawa, or Sayisi Dene, which is a small, isolated community with small families, where everybody is interrelated. Six weeks is a long time for such communities to go through this process. If it is all handshakes, smiles and kissing babies, that is fine, but sometimes the reality is that these elections are ugly. That is another thing we need to look at, I suppose.
That is basically my presentation. I see myself as wearing two hats, a headdress and an Indian Affairs hat, because people tell me "You are serving two roles." I have the traditional role, since there is still territory where we are "unextinguished." That is still the stuff I need to maintain and to hold on to my headdress, and the obligations I have as a leader on that front. Then there is the Indian Act, of course, because I am elected under the Indian Act, under a foreign system. I have dual roles, so to speak.
Those are my comments. It was not formalized, and I have been jumping all over. This was not a formalized presentation. I do apologize for being a tad late. I received numerous e-mails on this meeting time. I think it changed by the day, it changed by the e-mail, by the hour. It was changing all the time. I thought to myself, "You know what? I will just leave it and try to show up around 10:30." My apologies, again. Welcome to Treaty One territory here in Manitoba.
The Chair: What is your off-reserve population versus your population on reserve?
Mr. Fontaine: It is 60/40; 60 on-reserve, 40 off-reserve. We are in total about 7,300. I would say we have about 4,800 people on-reserve.
The Chair: Are you in the Pine Falls area over there?
Mr. Fontaine: Yes, right up by the mouth of the river; right at the lake.
The Chair: Winnipeg River?
Mr. Fontaine: Yes.
Senator Lovelace Nicholas: My question is with respect to your off-reserve members. Do they mail in their ballots or do they come into the community to vote? Second, is this an efficient way of doing the voting?
Mr. Fontaine: First of all, for someone who is living, say, in Vancouver, I think it is efficient. It is cost effective. It is good. On the other side is the comfort for them: "Do I really know who I am voting for? Do I know? Am I really confident or sure that my ballot will actually get into the box," and other such things. Those questions will always be there in regard to mail-outs, no matter what. I think that will always be there. I do not know how to fix that. Do you fly the people out from Vancouver to Sagkeeng? I do not know. I think there has to be —
Senator Lovelace Nicholas: No.
Mr. Fontaine: Yes, but that is what I am saying, that that is the way it is. People have to just trust the system. If they have trust in the system, I think there would not be any problems. Right now, though, I think there is still skepticism. Even the people in Winnipeg, they get mail-in ballots. They would rather drive that hour to go to the reserve. I think part of it, too, is just to participate. My vote means something. I want to participate physically, and I want to be there in person. I want to show that my vote counts. It is kind of informal just putting it in the mail, just licking a stamp. They want to be part of the process. There is a bit of mistrust still but, on the other hand, I think there are also people who want to participate physically.
Senator Lovelace Nicholas: Are you suggesting that there should be a better appeal system, and who would be in this appeal process?
Mr. Fontaine: I would think you would obviously need trustees, people who are neutral, unbiased; probably some from the community, some elders, and maybe a mix; maybe some from the government and maybe some from the general population.
With the appeal process, I think there is an attitude that an election will be appealed, and it will go eight months, six months, whatever. By that time, we are into the next year, so maybe they will not even call the next one. The appeal process is too long. Is it long because the investigative work that they are doing takes time, or is it because they are just dragging their feet and letting it drag out? I do not know.
Senator Lovelace Nicholas: Sitting on somebody's desk?
Mr. Evans: Yes.
Senator Lovelace Nicholas: You mentioned independence. Where would independence, where would accountability come in, and who would you account to if you did not want to account to the government?
Mr. Fontaine: Let us say an independent official: let us say a Commissioner of Oaths, let us say a minister, let us say an RCMP officer, maybe a principal, maybe a doctor, I do not know. Just people who must be true to their word when they put their pen to paper.
Senator Lovelace Nicholas: Yes. In many places, if there is an audit done and there is no accountability, the government might cease funding, so there has to be somebody there who would report to the government eventually, right?
Mr. Fontaine: Yes, the report, the final report, everything goes to the government. That is what I said about our elections, too. Eventually, it has to go to the government.
Senator Lang: I appreciate you coming forward, and I listened very carefully to what you had to say. There has been a lot said there. I have a great deal of sympathy for your position, that you want to take responsibility and control of your own affairs, and obviously within the community itself. The question I have is that it appears to me that you have already taken that step. The document I have here is your election log, December 1, 2008, and it goes from two years to four years. It covers the election process. All those things are in place. Am I to assume that in the next election, the next chief and council will be a four-year term?
Mr. Fontaine: That is the question?
Senator Lang: Because it is my understanding that you have reverted to custom code.
Mr. Fontaine: It was a referendum question, as I said. It was agreed upon by two-thirds in our community. The actual code itself, it was not ratified. They wanted four council members or six. It was just a straightforward, simple question. It was almost like the Clarity Act. The question was clear and simple: Do you want a four-year term? Do you want an election code? The community said "Yes." But the question did not say: Do you want this election code? That wasn't the question. The question was: Do you want an election code? Do you want a four-year term?
Senator Lang: This election law was put to your community and it was not ratified; is that correct?
Mr. Fontaine: It was also sent out in the mail-outs. Just like you, people assumed that I was voting for this. I do not want six on council. For people, the question was not clear.
Senator Lang: It is not clear to me. I just want to get it clear for the record here. This election law then subsequently was not ratified? It was voted on and voted down by your community, is that correct?
Mr. Fontaine: No, it was voted for; they were in favour. What they have seen, they liked it, they read it, and they wanted a four-year term. They wanted an election code. That is what they had on the one hand so it can be assumed, yes, this is what we want. But the question did not say that, on the vote in this election. That was not really the question.
Senator Lang: So then, just following this through, because it seems to me you are halfway down the trail here —
Mr. Fontaine: We are.
Senator Lang: — or maybe three-quarters of the way down the trail, depending on where you are. The question I have is, do you intend to put this to a referendum, and then be able to go to a four-year term?
Mr. Fontaine: Yes. If I had my way, it would have been clearer. If I had my way, there would not have been seven candidate forums. If I had my way, certain other things would have been done. But I stayed away because of the very real threat of appeals, appearance of conflict, appearance of bias, so I just stayed away from all of this stuff. If I had my way, it would have been clarified. Excuse my language, but when shit hits the fan, it comes to me anyway. I just left it at that. I knew something would come around and come back to me. People came to me and said, "Should we appeal? Is this grounds for appeal?" I said "Absolutely. Challenge it, question it. If you have a question about it, go ahead. I will not feel offended. It is not my process. This is not my position for life. I am here accountable to the people." So I did have questions about that.
My son, this is the first time he could vote. He is 18. He said, "Dad, what the hell did I vote on?" He read the question. "I voted `Yes' anyway, just to be positive," he said, though he did not actually know what he was voting on, and I could not explain it to him, either. I just said, "The question just says, `Do you want an election code and do you want a four-year term?' That is what that is, because that is what it speaks to, four-year term and rules and regulations and appeal mechanisms and all that, that is what the code speaks to." But that actual referendum was not voted on. We are signing off on it; it is done.
Senator Lang: I am not clear, and I just want to pursue this a little further. We were provided with the number of First Nations under the Indian Act elections, and your First Nation is not included on that list. I am assuming you are custom code, or it said you are reverting to custom code?
The Chair: Fort Alexander.
Mr. Fontaine: Everybody thinks our next election is four years away, and it may be so; maybe we are in the system now. I designed it in such a way that I do not know.
The Chair: They are under Fort Alexander, it is not Sagkeeng.
Senator Lang: Very well. That is where I am a bit confused.
Mr. Fontaine: This is where I wear two hats again. You have Fort Alexander and Sagkeeng, but if you come to the reserve, I do not say "Welcome to Fort Alexander." It is "Welcome to Sagkeeng." It is the territory position that people put forward, and our official name is Sagkeeng. Our official Indian Affairs name is Fort Alexander.
Senator Lang: Are you intending to put this referendum to your community, to see whether or not you can go to a four-year term?
Mr. Fontaine: Yes. We have talked about it. We will put it to our community members.
Senator Peterson: Being under third party management, does that inhibit or hold you back from any of these initiatives that you are trying to pursue?
Mr. Fontaine: You know what? For me, I was not chief when we were under third party management. I was a council member. It is almost a hands-off thing. It is the easy way out. I found it sort of — I do not want to say the easy way, but there was disengagement with your people, because it was easy for the leadership to pass the buck. "It is out of our hands." It was easy to say no. Now with my being chief, there is no third party, and it is harder to say no. It is harder to pass the buck. You cannot do that. You need to be more accountable. You have to say, "I cannot do that, and here is why."
Being under third party management takes all the decisions out of your hands, but it is an intrusive mechanism. It was just bad for the community. It does not hold the feet of your leadership to the fire, as they should be all the time. It is also a very costly exercise. I think we put in almost $2.6 million — actually, no, almost $5 million in eight and a half years. Yes, very expensive.
What do we get out of it? What capacity do we get? Nothing. We did not get any more capacity, any more development. Just three, four months goes by before we hear, "We are doing a transition here. We are going to transfer the books over to the community. You are on your own after that." Well, thanks a lot. It is kind of, "See you later."
During the time when we were under third party management, they looked after the dollars, they guarded the wallet, they guarded the purse. They did a good job of that. But there is more to it than that. There are all these decisions that are supposedly made by your band leadership. Meanwhile, it is the third party that is making these decisions. They are off scot free. They are making good money to be scot free. I did not like that.
We had one housing deal that went sour. We were still under co-management at that time. Why were they not on the hook for some of this deal? They are still guarding the purse and the wallet and the finances. Why were we left holding the bag on everything?
These questions are still out there. I have not fully pursued this matter yet. I do not know if we are taking a legal route, but I do not believe in third party management. I think it can be done in partnership with the community, somehow. With full blown third party management, I do not think that works. That is all.
Senator Dyck: I believe you said something about "During the election process, things can get ugly." What would you say the major concern would be during elections? From your point of view as chief, what is the major problem?
Mr. Fontaine: First of all, your community can be at a standstill for six weeks. Nobody wants to make decisions; they all want to appear to be fair. We do not want to make any decision, so things stand still for six weeks. We can miss opportunities. Community members have no way of addressing various things. It is almost like, "Okay, was I elected for 22.5 or 24 months?" I am elected for 24 months. There is that period there that it is too long where we sort of become powerless. On the other hand, in the worst extreme, some have too much power. They want too much power in that time in order to get re-elected, so it can go from one extreme to the next. I just think that is not good.
It has happened — in my case a couple of times — where family members run against each other. It is not healthy; it is not good. Things fester, and then there is a carryover. I just think that six weeks election period is too long for small communities. It is too long.
Senator Dyck: If you were to go under a custom code, would that period be reduced? Would you be able to change that period?
Mr. Fontaine: Personally, I would like to change it. I think there is probably room to do that. I think there is.
Senator Hubley: I just have a quick question on the appeal process. You had mentioned that it was very costly. That was one of your comments, and that it impeded somewhat the work of the chief and the council in getting on with the issues at hand. How does it differ? How does the appeal process differ under the custom code as opposed to under the Indian Act, and who pays for it?
Mr. Fontaine: That I do not know, because we are not under the custom code yet. However, with the current system under Indian Affairs, I think the department pays for the research, they pay for the staffing, they pay for the person hours that go into this. If there is any investigative work that needs to be done, I think the department pays for that, again. Maybe that is why they only look at one rather than at six or seven different appeals that come in. They send a package out to every candidate. Even I got a package for a couple of years. "Are you interested in appealing?" I said, "No, it is done. The elections are done; people spoke." I am just saying, if they opened it up to everyone, a different appeal for everyone, it is too costly. I am assuming you only look at one appeal. That is how it is done. But if we did it ourselves, I think it would have to be done amongst our peers, perhaps. It goes back to the question of maybe having some neutral people on board. Obviously, cost would need to be determined. What triggers an appeal? Because you can have an appeal — you can have many appeals, and it can be very costly. It needs to be clearly defined. If we are paying for the process, does that mean that we do not want to pursue one, because we are paying? Probably not. We still have to do what is right. Pay for it or not, we still have to do it because it is the right thing to do.
The Chair: Thank you very much, chief. You spoke of education, and I see that Aline is here from your nation, Mr. Fontaine. I would like to mention the fact that I saw her progress through the system. She was a page in the Senate, and she has done excellent work. Now I understand that she is working for Senator Dyck. I think that is living proof of the fact that First Nations people are taking advantage of education and they are doing great work. Aline did great work in the Senate. As we are in her own province and on her traditional land, I think it only right that I make mention of that.
I thank you, sir, for your presentation here today. Unfortunately you cannot be with us this afternoon, but the fact is that you presented well, and you answered the questions posed by the senators. For that, we thank you and we look forward to working with you. If there is anything that we can do, or anything that you feel would add to our ability in making a report more complete and you have anything that you would like to send to us, make sure that you do not hesitate to send it to us. We would certainly try and incorporate into our report any recommendation that you have.
Mr. Fontaine: Sure. My community is open for a tour on Thursday. I will be back on Tuesday night, but my community is open on Thursday. I have a community meeting Wednesday. Thursday, if any of you want to come for a tour, I will be available to take you.
The Chair: Thank you very much.
Mr. Fontaine: You are welcome.
The Chair: Colleagues, our last witness this morning is the head of the Southern Chiefs Organization. He is Grand Chief Morris J. Swan Shannacappo. He works to promote the interests of 33 southern First Nations. The Grand Chief is from Rolling River. He just informed me that he has been the chief there for the last 10 years. I have become acquainted with him personally, and he is a remarkable individual.
Sir, you have the floor.
Morris J. Swan Shannacappo, Grand Chief, Southern Chiefs Organization: Thank you very much. My name actually is (The witness spoke in his native language) My English nickname is Morris J. Swan Shannacappo, and my governmental name is — I am 274 from 291. I was just using my language to give you my real name or my spirit name.
I want to say good morning and wish everyone well today for your ceremonial practice here. I am a big man who believes in traditional ceremonies. I view this as a ceremonial practice, before you invoke something on our people again, or put something on our people that is very unnecessary again.
In the Rolling River First Nation, I am the ninth chief since the signing of Treaty 1874. I want to know how many leaders you have gone through in your Canadian government since then. What I am talking about is consistency. What I am talking about is open communication with your people, to your public, to your constituents, the ones who vote. We are one of the most democratic places in this world. Unfortunately, you do not get to see that because all you get to read is the frivolous things that are written by a majority of the newspapers and the news handlers that are in Canada here. All you hear about is the mismatches. All you hear about is the misfits. All you hear about is all the troubles that go on in our communities. You never get to hear the good stories of community development, of community roundtables that were resurrected; community roundtables that were our practice prior to any election code, or any election that existed for our people.
It was a common practice and a common courtesy to be able to look your people in the eye and put them in a circle such as this one, to ask them how they felt about the issues that you were dealing with, even the youth. I am proof of that. I am living proof of that.
In my community, back in 1872, they wanted to move our people into another area and just call it Indian territory. Our leader of the day was Shawiniginak, who was South Quill, our first recognized chief under this Election Act that you people put together. Under that, he was given recognition and he was asked if he would move his people. At that time, we lived in what is known today as the Riding Mountain National Park. That is still my traditional territory. I still strongly and firmly believe that in my heart. I go and travel on those lands to reconnect back with my past and my history.
When I look at the territory of our people, I can only imagine what a beautiful life my people had in the past. What a beautiful life they had just consulting one another and how they were going to go about their daily lives and how they were going to commit to the survival of their people. What a beautiful life it must have been to be able to travel anywhere within that traditional territory, without being asked for a licence to harvest in our own traditional grounds. What a beautiful day it must have been when you could pull fish out of that national park at any one time. Just wade in knee deep and be able to pull it out with a net that people made out of their own materials, out of their own ingenuity. What a beautiful time it must have been for our people to go in there and harvest animals so that they could make clothing and they could help build their shelters.
Today, we need a park pass. Today, we need to pay your government money so that we can go and enjoy our traditional territory. Now you are trying to impose an election code on our people. Yes, it is true that it may be the wishes of some of our people.
You know, I sent in this newspaper article, back in October 16, and I intend to read it to you:
Many First Nations are the first democratic places in Canada, maybe even the world. And that, strange as it may sound, is a problem.
With elections being every two years, it becomes hard for band councils to plan for the long-term. It is as if political campaigns never end.
In contrast, when a Manitoba mayor is elected to a four-year term, a municipal council can confidently establish a four-year plan. The defeated candidates drop out of the picture at least until the final few months before the next election.
The time frame is very different for First Nations on a two-year cycle. If the successful candidate for chief is new to the position, he or she spends several months getting familiar with what is involved. Then, several weeks before the next election, it is campaign time again.
With elections so frequent, the candidates who almost win never seem to go away, but instead keep campaigning in the background. This adds to the pressure cooker for chiefs and councillors.
This isn't the situation for all First Nations, but it is for many. Some have elections every three or four years according a custom code; some even had traditional system with hereditary chiefs.
This diversity is largely the legacy of the Indian Act, with its variety of standards, double standards and complicated opting out provisions. Even within First Nations that have two-year terms, the political situation isn't uniform. Some chiefs are re-elected 10 or 12 times, creating stability. Other First Nations change chiefs almost every election.
I provided the comparison to municipal governments because several years ago Manitoba increased terms from three years to four. First Nations and municipalities are very different. The federal government is a better legal equivalent.
Municipalities have clear functions and limited autonomy. They are the children of the province. Rules and funding policies change little from one year to the next. They are not really governments, but rather structures that make administrative choices.
Prairie First Nations trace their history to treaties where they were recognized as sovereign. . . .
They had an inherent right.
Present situations are a jumble of clear responsibilities and contested jurisdictions.
Added to this is a network of mangled and ever-changing government programs related to health, education and economic development. All of these apply in different ways to on-reserve citizens and First Nation members living in towns and cities. Beyond that there is an international aspect to treaty understanding.
There are more than 600 First Nations in Canada with legal jurisdiction, but most lack the financial clout to successfully take Canada to court.
Umbrella organizations, like the Southern Chiefs' Organization and Assembly of First Nations, don't have this legal standing. We can advise and represent, but the responsibility for making choices rests with First Nations.
I would like readers to understand the demands placed on chiefs and councils and the need for terms longer than two years."
Again, I go back to my community. When I was elected, I knew I would be in office there for two years definitely. But with the knowledge and the wealth of traditional knowledge from my people, I knew for a fact, from my point of view, that I would sit there for 10 years, because that was what was told of me. That is traditional governance at work. That is consultation with your traditional peoples and those who help govern your community at work.
It was in that consultation that I sat with my elders, when they pulled me out of another job where I worked very hard and very well in economic development. The elders came to see me. On their third visit, when they approached me with tobacco, they asked if I would run for chief. I said, "What a great honour. I do believe it is my turn to walk through that doorway, but I will let you know within a month, before the elections are announced."
Within that month, I had a lot of time to talk with my own family and consult with my own family. They gave me the go-ahead. My family said "Go ahead. If they ask you to run, you might as well run and accept the tobacco of the elders."
When the elders came to meet me on that final visit, I said "I will accept your tobacco and I will run for chief, but I will do it for no less than 10 years." We have now had five terms and five elections, but within those five elections my name still stood at the top. The ones who did not want me there, there was clear opposition, and it was clear that they were people who would be the type, maybe, to mismanage funds, but certainly the type to relay all kinds of bad activities or do different things and be able to stir up this kind of trouble within your own community.
What I asked from my people was a clear mandate on how they wanted to develop a ten-year plan, so we did that. On my first election, that was the platform that I laid down. "If you are to be self-sufficient within 10 years, if you are to look after your own people and govern yourselves accordingly, in what fashion and what manner do you want to do this?" The room was quiet, just like this one, until one of our young people put up their hand. Now, that is consultation at work. The child said, "I do not know if this is economic development, but, chief, if you are going to be our new chief, I would appreciate something for our young people. Perhaps a gym to facilitate our meetings, to facilitate our recreational activities, to be able to facilitate better consultation. We know where the elderly people of this community are taking us, and we want to participate, much like the stories you tell us of old with our last chief, (Native language spoken) our first leader."
It was that first leader who said to his people, "If the women in our community, the life-givers, do not want to move, and feel it is safer here in the Riding Mountain Territory, then this is where we will stay. If our children are telling us to listen to the words of our old and to listen to the words of our elders and to their wisdom, then this is where we shall stay." It was the words of those elders who told them to stay in that territory and not be moved to another area which was covered with valley and probably had a lot of flooding. I know that there is flooding in that territory now.
The last people whom our chief consulted were his "traditionals," his traditional people, who had insight, who had ceremony, to be able to go in and ask, "Is it the proper thing to do for our people to move?" His answer was "No."
Much like what we are doing here, with this ceremonial exercise, I asked my traditional people, "Is this the right thing to do?" Then we went into ceremony and talked about it and asked, and the end question was, "You need to ask each community. It is up to each community. It is not up to the Southern Chiefs' Organization to intervene and say, `We intend to adopt this policy,' and hope that all will have uniform elections for the three to 33 First Nations. That you will have to ask of each community. Anything in the order of specific governance of that community rests with that community, and there has to be consultations with all those people, the women, the children, the men and the elderly of that community. That is where the sole responsibility lies on how we are to govern ourselves, within those communities that want to be governed in that fashion."
We called it ceremonial because, to me, it looks as though a long line of tables will again be put in place to ask our people, "What is it you want to do and how is it you want to go about doing it?" but in the end, being a prescribed result or a prescribed election code that our people have to handle.
What happened in the community of Cross Lake, when the people there decided to take their livelihoods into their own hands, to talk and to be consulted on how they were to deal with elections? They drafted up their own election code, but they also witnessed what was in the Indian Act. They also gave some respect to what was written in the Indian Act. But at the end of the day, the people said, "This is our community and we will govern ourselves accordingly, in a manner that is put forth by our people." The people delivered an election code and sent it to your people in Ottawa. What did your people say? "We will not accept this." Is that not what they said? I am posing a question. Does anybody here know the answer to that?
The Chair: I am sure the answer was that it was not accepted.
Mr. Shannacappo: That is right. However, our community went on to say, "This is our community. We will govern ourselves in the way we want to be governed." We did not send you that election draft to look at and ask for your permission. We said "This is how we will do it." I believe, in my heart and in my mind, but more over my heart, that it must be every person in each one of those communities who should say how their elections are to be run. It is not for any grand chief, it is not for any treaty chief to say; it is for those very people who give direction to their leadership in that community. That is how things are done.
Before we saw this table set up, we had seen many tables that were set up in the past. The fondest one I remember is the big fight we had with Robert Nault over the First Nations Governance Act. Again, a similar table that was being pushed, uniform elections, things that have to be done, and a suite of legislation that was being created by Robert Nault, someone who sits in an office and who has only been to the reserve for cutting ribbons and for all the good stories that he saw there, but never coming to live in a community, never coming to see the turmoil that can happen during election time, when you have your traditionals opposed to the ones who came out of residential school.
Now, I am not calling down the people from the residential school. What we had here was a community of people with inherent rights prior to the Treaty. This inherent right, all our rights, were given to us and afforded to us by our Creator, giving us our rules and regulations on how we must live in harmony, not only with people but in harmony with nature, the birds, the animals, the winged ones, the four-legged and the ones that crawl. That was natural law. We each had an existence on this territory and we each respected that existence on this territory.
We asked for permission; when we went on our fasts, and the ants bothered you, you put out tobacco for those ants and told them that you would share their territory, and asked them for the honour that you can share their territory and live in harmony for that brief while. You also asked for forgiveness from the birds, from all of God's creation that are there, things that your people forget are alive, things your people forget are still very alive today, that breathe life from our Creator, that have an inherent right as well. Today they are only looked at as materialistic goods with a dollar price on them. That is the difference between our cultures. That is the difference between our life. Nobody with that type of difference should have the power to come and tell our people how to live or how to elect our leaders. That has to be done by the people within that community.
We looked at the suite of legislation that was created. We looked again at a practice where Bob Nault wanted to bring in and establish uniform elections. What was next on that ceremonial practice, the blessings to be municipal governments or to be given the power to act like a municipal government? I think not. I think what has to be done here is to go back to those people with inherent rights, the Dakota Nations in Manitoba, to go back to the ones that were given Treaty rights that derive from our inherent right, that were derived from the visitors that came here, that were derived by meetings and consultation. That is what we must go back to, to be able to talk to those people who will be affected adversely or be affected in a good way.
As for this table, I myself certainly do not have the power to give the go-ahead to say that this is how elections are to be run.
I thank you very much and I am open for questions.
The Chair: Thank you, grand chief.
I do not think that anybody at this table, and I think I can speak quite safely, wants to impose anything on our First Nations people. We do not want to impose an election code on the First Nations people in any way, shape or form. What we are aiming to do is improve the plight of First Nations people in any way possible through our recommendations. It is by talking to people like yourself, grand chief, and others that we hope we will be able to come up with a recommendation that is applicable and acceptable.
Anything that this committee has done in recent years has been in consultation, and I mean sincere consultation. It is not a question of formalities, or us coming out here just to listen and go back and write a report on what we think. We try our hardest but we are human; we do err, and I am sure and we will err. However, if we do nothing, nothing will change.
As you have indicated to us, it is important that things change, that perhaps we, as a nation, should start recognizing the inherent right of our First Nations people in a more practical and suitable way so that First Nations can find their rightful place in our society.
I preface the questions from my colleagues by saying this, because we are very respectful of the inherent rights of our First Nations. Unfortunately, it has not always been interpreted in the courts, but I can assure you that there are many at this table who recognize your inherent rights. It is hoped that the day will come when they will be able to be exercised fully.
Mr. Shannacappo: I hope my inherent rights are really visible and are there, rather than the parental rights that Canada has been holding over my people. I respect what you say, senator, but I myself have talked with my children — and I think you know where I am going with this — I have had respectful talks with them, but if I say "No" to my kids, it is "No." If I tell my kids, "Yes, you merit being able to go to Brandon, to go to the fair because you did all your work and you acted like a good little Indian in your household, then maybe as part of your reward we will give you permission to go to the Brandon Fair and go on the rides." Do you understand where I am coming from?
The Chair: I hear where you are coming from. I know. As long as the government acts like the parent, there is not a hope.
Mr. Shannacappo: That is right.
The Chair: We need to change that.
Senator Peterson: I think I have it correct that you agree that changes should be made to the process of elections, but only in a proper process of consultation?
Mr. Shannacappo: With the people; with the people of the community.
Senator Peterson: By the people, with the people, is that what you are saying?
Mr. Shannacappo: Yes.
Senator Lovelace Nicholas: I totally agree with you, but do you receive government funding to run elections and to train your electoral people to handle the elections right now?
Mr. Shannacappo: I can only speak for the community I am from, but yes, we do receive some monies to be able to run our elections and to train our electoral officer.
Senator Lovelace Nicholas: The electoral officer, is he or she from the same community, or is she from another community, someone who comes in?
Mr. Shannacappo: It is our responsibility, applicable to that community, so we use everybody in our own community as our electoral officer and people to run the election.
Senator Lovelace Nicholas: I believe there should be accountability, whether you are self-governing or under the Indian Act, under the federal government, or whatever; there should be always accountability. In your view, if it is self- government, where would the accountability come from and who would you account to?
Mr. Shannacappo: As a resident of that First Nation, you must be accountable to that First Nation. That is what we have been teaching our community. We had a ten-year plan on community development. One of the last things on that plan was election codes. I will tell you why it was the last thing on there. People did not want to tinker with it, and there were a lot of things that were going on in our communities. When things are like that, people think — I think — from the top of their minds, "Let us just leave well enough alone." I think that is why they were able to live with the Indian Act elections because that suited the community sufficiently. I will not say it was the best thing, but it did suit the community sufficiently.
The accountability you are talking about comes from the leadership. The accountability that you talk about is instilled in the community because it was not the chief and council who said, "You will be the electoral officer." It was at the band meeting where the tables were put in a circle, where the community agreed, "Yes, that community member wants to take on that duty. Let us allow her to do so."
Senator Lovelace Nicholas: Do you have any women councillors in your First Nation?
Mr. Shannacappo: No, we do not. We had some in the past. In fact, our last one was back in 1961, which was my mother.
Senator Lovelace Nicholas: Are the women not interested in running for council?
Mr. Shannacappo: You know what? I am not certain there. I think with this last election we had, there were no women running for council. The election prior to that, we had two. The election prior to that, there were two. They just could not get in, or they were not being active enough out on the trail, the campaign trail. We had a lot of good candidates, too, among the women. We had school teachers and one who was going into nursing, so there were good candidates. However, I do want to say that predominantly the women in our community make a lot of decisions for the community, and they do not need to be elected.
Senator Dyck: You spoke a lot about natural law and traditional law versus what was inherited through the Indian Act. Apparently there are two First Nations here in Manitoba that have hereditary chiefs. Is that system of hereditary chiefs what would have happened on your reserve had the Indian Act not been imposed upon it?
Mr. Shannacappo: On my reserve, it was hereditary a while back, yes. It was hereditary where it was passed through. But in our community, when I listen to the elders speak, they always sat at the table like heads of a family state, which was why we tried to bring back our clan system within our community. The clan system was forgotten, but it could be retaught. In my community, what we did was we went by family last names and developed a roundtable, and when we do decision-making we make sure that those heads of state, of those families, are there. In fact, that is who heads up our roundtable back home.
Senator Dyck: In a sense, you almost have what sounds like a hybrid system of the clan system plus the Indian Act, sort of working the two together?
Mr. Shannacappo: Yes.
Senator Dyck: In terms of inherent rights to self-governance, I am wondering whether that sort of traditional system would be the system that people would prefer to go to? Probably in the past, as you know, what was extant throughout the system had built-in mechanisms of accountability and transparency and all the things in the modern language, but those things must have been present?
Mr. Shannacappo: Yes, certainly. My father was a chief for 13 and a half years, my brother was chief for 19 years, and I have done almost 10 years, nine and a half years. But, you know, my son, if my son played in a band and did all the carousing and all that, do you think they would want to make him the leader? Absolutely not. I had to go to university. I had to have schooling for what I learned, economic development, community development, because I wanted to help my people. Now, if I had taken another life path and had been an entertainer and stayed as a person playing in a band, do you think I would have been the chief in my community? Absolutely not. There is nothing hereditary there. We look at the education of our people in our community and whether they merit any of these elected positions. Then that is how we nominate them and vote for them.
Senator Dyck: I think the term "hereditary" would have one definition in mainstream culture but it might have another definition within your own community. I think it is difficult to pick words that mean the same thing for different cultures.
Mr. Shannacappo: My understanding is that hereditary is passed down through the family.
Senator Dyck: When you became chief, you were saying that you ran on the platform of a ten-year plan. In essence, that is almost like saying "We are moving to a custom code with 10 years, because the platform is sort of saying that I want a ten-year period." I think that was very strategic and a good way to go about it, because it allowed your community to develop that long-range planning. In the future, then, do you see your community moving to the four- year term? Is that what your community is leaning towards?
Mr. Shannacappo: I am hoping that the talks could go that way, yes.
Senator Dyck: When you were talking about consultation, I noticed that you mentioned that consultation involves youth in the community. Would that mean that you are consulting people whom we would not normally consider of legal age to vote, so it is more inclusive?
Mr. Shannacappo: Some things have to stay the norm, and I would not want to tinker with the age group. However, in my community, one of the things that we developed was a business camp for the summer students. I walked outside one day as a chief, and saw these kids cutting grass and painting a building that I painted as a summer student 20 years ago. I asked myself, where is the change in this? How come we are not doing things differently? We designed a business camp where kids can come during the summer to learn exactly how our First Nation operates, to know exactly what kind of budget the First Nation has to suffer under, to know exactly what their housing dollars are, what their social dollars are, how they have been rallying or how they have been displayed over the past four years. I do not know why we use that term but we went back four years and showed the children the stability of what good leadership can contain and what it can hold for your community.
One of the things, the first things that they learned in this business camp was how to budget on $200 a month. They were being paid $300 a week, the reason being that when they did not want to do the exercise, we said "This is your reality. You will either end up on-reserve living on $200 a month, or you can expand your knowledge and get a good job somewhere and make up to $300 a week." That was shock treatment. I guarantee you that all those children who went through business camp, half of them are employed.
Senator Hubley: I will talk to you about leadership because obviously you know about leadership. You have been a grand chief for almost 10 years now.
Mr. Shannacappo: No, I am in my last year of this three-year term.
Senator Hubley: It is a three-year term, but you are chief of your community?
Mr. Shannacappo: Yes. I have been chief in my community for nine and a half years.
Senator Hubley: During that time, the council would change on a periodic basis?
Mr. Shannacappo: One or two.
Senator Hubley: One or two, so generally, the four year term is of no problem to you, so far as being in this system?
Mr. Shannacappo: No. My chief right now sat on council for 20 years. I had absolutely no problem in supporting him.
Senator Hubley: Then you must see the advantages in your community compared to other communities. Can you share a little bit of those very positive things that you have talked to us about today, with that kind of stability within the leadership and that stability within government for your community?
Mr. Shannacappo: I will be honest with you: I probably could have spent 20 years in that community role, but who wants to do 20 years? You know, you probably do not even know what it is like being a leader in our community.
Senator Hubley: No.
Mr. Shannacappo: None of you at the table, you must not know. What I mean is you have to have the thickest skin, because it is your own relatives at times that you are saying "No" to. It is your own relatives that you have to tell, "Buy your own doorknob. If you can buy a freaking 12 or a 24 on a Friday, then you have enough for a doorknob." You ask what that does to the family reputation. You ask what that does to your communal life, when people call you a hardass, or they tell you that you have no heart. Meanwhile, you are trying to have the biggest heart in the community so that you do not see the young ones suffer, so that you do not see the young ones taking on the responsible roles that some of our parents should have.
When I say that, I am being facetious, of course. There were a lot of very bad things that were taught to my people in residential school. My own mother, who just turned 80 this year, in her seventy-eighth year finally stated to my family — can you imagine being quiet for 78 years and then all of a sudden coming out and saying, "You know, I was one of those girls who was handpicked by a nun so that the priests could have their way with me"? Can you imagine trying to have a dinner conversation with the very mother that you loved, that breathed life and gave you life and put you into this world, but sitting there dumbfounded and struck dumb with horror, and her being unable to speak because of something in the back of her life that will not let her?
A man of God, a man of God from the Catholic Church told her, and mistrusted her, and misused her, and abused her, and raped her. She still has to be the motherly head of state of that family, with all of this pressure wearing on her. Watching her children grow up, trying to tell her children how to act like good human beings, how to perform in school, how to try and be number one. Yet what she went through, what our people went through, men my age who are now coming out saying they were sexually abused, going through all that pain and all that bullcrap, through a government, that was put upon us by a government and of all places by a church, the church, a place where there was supposed to be this man called Jesus Christ, the Saviour of everyone, and who came and gave us all these good stories, while the men of the cloth were doing this to our people.
My father was Presbyterian; my mother was Catholic. If you want to hear arguments about the Creator and about God, just sit at our dinner table one night. You want to hear, and I will tell you, when it came to talking, you know what happened? People would just shut up and you had to figure out everything for yourself. That is what life is like on the reserve, when you have parents who were brought up through that system, when you have parents who were molested and raped by people of God. This is something that we have held with affection, that kept our lives harmonious in the past. But what transpired and what happened is that they came in and literally stole our God. The same God that we were talking to, the same God that we said was a loving God and who put us on this earth to be able to walk and show what we had, and how capable we all were of contributing to what is the Creator's world and to society, only to be told by someone else, who seemed to have brought a different God here, that we were sub-human, that we were not allowed to live like human beings.
We were told that we were wanderers and gatherers and savages. Then I find out, when I make my own way back as a traditional man to find out the beauty and the teachings of the eagle feather, the beauty in the teachings of the sweatlodge, which I am told is made out of nine poles, just like the nine months that your mother carries you, or I am told that we are celebrating the water, something that was given to the woman to be responsible for, or I am told that we come out and go in as family, that it is so dark in there, in the womb of our mother, that we cannot recognize one another but only know each other as family relatives, regardless of the skin colour in those lodges.
My God, what beautiful teachings our people had to throw away, only to take on mistrust, only to take on a cycle of sexual abuse that is still practised today in our communities that hurts and affects our people, that still goes on in our communities but is still kept up hush-hush. These are what the people of the Creator or the churches brought to my people, and you wonder why we are in such turmoil today? My God, teaching us to be like hillbillies, from the way I look at it, anyway.
You wonder why we are angry, and you wonder why we speak the way we do. You wonder why we speak with a passion. I will tell you: because I am sick and tired of being just that: sick and tired. I am sick and tired of hearing about my young people hanging themselves and killing themselves, and wondering why.
I will tell you why. They were probably sexually abused because of all the bullshit that we have to live through. People are still wearing this and practising it within their own communities. That is why. Those are the things that we must do something about. A simple election, changing an election to four years certainly is not the answer. It has to be in relation to getting back, historically, our resources so that we can plan and do things the way we want to do them; to be able to participate.
Did you know, in this province alone, with Manitoba Hydro, we cannot participate in the production of wind energy that the Indian people want to do, or go into business with funders who are on-side saying, "Will you open the Manitoba Hydro Act so that you can pump energy?" We have to say "I do not know. Our parents will not let us; we have to ask them first." That is how we feel in our own territory, on our own land, and with our own resources. That is why we are angry and frustrated.
Senator Hubley: I think anything I would add to that would take away from it. I think perhaps, if we take to heart what you have said, that might be my most important question. Thank you.
The Chair: Thank you, grand chief. We have listened, and we hope that it has sunk in deep enough that we as a committee can make a difference, because we are not here to impose or invoke, by any stretch of the imagination. We are here to consult.
The issue is fairly narrow. I know it extends far beyond four years, based on the history of the Canadian Government and First Nations people.
I want to thank you for appearing before us. I know we have learned a lot today from your presentation, and we hope that our decision will be guided by the Creator and we will do the right thing. Thank you and God bless you.
Mr. Shannacappo: Thank you and God bless you, too.
(The committee adjourned.)