Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 12 - Evidence - June 16, 2009
OTTAWA, Tuesday, June 16, 2009
The Standing Senate Committee on Aboriginal Peoples met this day at 9:31 a.m. to study on the federal government's constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Metis peoples; and on 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 to all of you.
I welcome honourable senators, members of the public and all viewers across the country who are watching these proceedings of this Standing Senate Committee on Aboriginal Peoples, either on CPAC or possibly on the website.
I am Gerry St. Germain from British Columbia and I have the privilege of chairing this committee. The mandate of 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 issues related to the Indian Act elections. The committee is looking at outstanding concerns related to the Indian Act elections system, including the two-year term of office for chiefs and council, as currently prescribed by the act. The Senate committee is seeking the views of First Nations' leaders, Aboriginal organizations and First Nations people, as well as experts in this area regarding whether and what changes should be made to the Indian Act elections regime to provide better governance for First Nations, including strengthening political accountability of the leadership to First Nations citizens.
For our viewing audience, it is important to note that 252 Indian bands hold elections in accordance with the Indian Act. This number is roughly 40 per cent of all Indian bands in Canada. We are dealing with this group only. The rest select their leaders as a result of their self-government agreements, or follow other leadership mechanisms such as the hereditary or clan systems. Here we are talking about the 252 Indian bands that fall under the Indian Act.
[Translation]
To pursue our study on the Indian Act elections, we have today witnesses representing the First Nations of the province of Ontario. But just before hearing what they have to say on the subject, let me introduce to you the members of the committee who are here today.
[English]
The honourable senators here today are Senator Brazeau from Quebec; Senator Lang from the Yukon; Senator Raine from British Columbia; Senator Lovelace Nicholas from New Brunswick; Senator Peterson from Saskatchewan; Senator Fairbairn from Alberta and Senator Carstairs from Manitoba.
I will now introduce the witnesses who will address us this morning. They represent the Chiefs of Ontario, a coordinating body for 133 First Nation communities located within the province of Ontario. Their purpose is to enable the political leadership to discuss regional, provincial and national priorities affecting First Nations people and to provide a unified voice on these issues. The activities of the office are governed by the political confederacy composed of the grand chiefs of the four political territorial organizations: Association of the Iroquois and Allied Indians, Nishnawbe-Aski Nation, Grand Council of Treaty 3 and the Union of Ontario Indians. Also included in governing the activities of the office is a representative of the Independent First Nations, overseen by a regional elder and chaired by the Ontario Regional Chief, Angus Toulouse, who is with us here this morning. Welcome Chief Toulouse.
Chief Toulouse is accompanied by Johanna Lazore. We are pleased that you could make the time to join us to share your views and possibly answer questions in regards to elections under the Indian Act.
Chief, the floor is yours.
Angus Toulouse, Ontario Regional Chief, Chiefs of Ontario: Thank you, senator.
On behalf of the Chiefs of Ontario and in my capacity as a regional chief and member of the executive committee of the Assembly of First Nations, I am pleased to have been invited to appear before the members of this committee.
I am from the Sagamok Anishnawbek First Nation on the north shores of Lake Huron, Ontario. The Chiefs of Ontario, comprised of the 133 First Nations in Ontario, is a political forum and a secretariat for collective decision- making, action and advocacy.
Elections and leadership selection are a central issue to our governments and may be the single-most telling demonstration of how we still face cultural oppression and denial of our basic rights as indigenous peoples and First Nation governments.
Our governments across this country had fully functioning and effective systems of leadership selection long before the arrival of Europeans. The imposition of colonial authority on our systems of leadership was, and continues to be, an illegitimate and unacceptable denial of our rights and responsibilities. Studies such as the Harvard Study on Indian Economic Development clearly established the critical importance of leadership in governance to help pave the way forward for development.
Such studies also establish the requirement for cultural match and the exercise of real sovereignty as critical factors as well. Furthermore, the Indian Act has produced election systems fraught with problems, inconsistencies, and an overabundance of appeals. Ultimately, the systems have served to destabilize our governments.
On this point, officials of Indian and Northern Affairs Canada agree with First Nations. Indeed, for over a decade, both INAC and First Nations have expressed agreement that the system must change. Change, however, has proven difficult, as First Nations and INAC have started at different places and aimed for different outcomes.
The discussion has been going on for over a decade and yet still we have the same problems, the same policy and the same legislation. It is important to note, right at the outset, that the aims of the Indian Act and the way it has approached elections and leadership selection in our communities has always been founded in a deliberate effort to undermine First Nation systems and to incorporate European models and values. This reality necessitates change that sets out, first and foremost, to correct this fundamental flaw — change that is significant and change that firmly respects and implements First Nation jurisdiction over this matter.
The current rules and process regarding elections under the Indian Act both fail to reflect our rights and aspirations as First Nations and lack relevance to the realities and requirements of modern and accountable governance.
The minister continues to have the unilateral authority, and the act has never required the consent of First Nations. We believe that this situation constitutes a fundamental conflict with section 35 of the Constitution Act and its protection of inherent rights.
Another central problem is that First Nations have been forced to adopt new requirements and yet have seen funding provisions drop or become virtually non-existent. INAC, in fact, does not fund elections. Rather it provides First Nations with band support funding. The funding is an allocation that is determined by formula distribution and has no relationship to need or requirements. It is an allocation that has been capped at 2 per cent growth for over a decade. Finally, it is an allocation that has failed to keep pace: even with inflation, let alone demographic growth; with the need for new technologies; and with the new requirements for elections such as mail-in balloting and appeals.
First Nations are required to modify their funding priorities every two years to conduct an election. INAC's own studies have shown, in the 2006 cost drivers study, that, for basic requirements such as audits, band support funding allocates only $3,000 to conduct audits when the actual cost is more in the range of $30,000. Contrast that election situation with the federal government that has an arm's length independent agency that receives funding to conduct all elements of a federal general election. There is absolutely no comparison. Rather, it is more of the usual double standard.
INAC's approaches have included the development of a conversion to custom policy, which purports to allow First Nations to adopt their own code. Here, again, INAC policy prescribes and limits how this election must take place. This policy occurs at the same time as there are no requirements for community engagement or approval for the Indian Act to apply in the first place.
Again, the INAC conversion policy, as in section 74, is probably contrary to the Constitution Act, 1982, in particular, section 25 of the Charter, which shields Aboriginal and treaty rights from infringement by the Charter. Yet, INAC continues specifically to impose and require Charter compliance on custom codes.
First Nations have found this process frustrating, and have asked for INAC to change its approach to better facilitate First Nations ability to move to their own election systems, including incorporating traditional practices. Many of these concerns relate to process issues within the Indian Act elections, including standardization of nomination procedures, terms of office, access to voters' lists, appeals and dispute resolution mechanisms, procedures for recount and by-elections.
In particular, the term of office continues to be a major concern. I think we all recognize that two years is insufficient time to develop, plan and be accountable for results. The frequency of elections can also create instability and uncertainty for community members, business ventures and overall community development. Clearly, there are better ways, and First Nations must drive the solutions.
First Nation citizens and leaders are best positioned to understand the needs of our communities and to work together to address them, to find a balance between traditional systems and modern requirements that will be effective for their communities in the future.
It is important to note that democracy and political engagement in First Nation communities is alive and well — far better than the average Canadian processes, in fact. Whereas other elections in Canada have seen growing disinterest, our elections continue to see high participation rates, generally between 80 to 95 per cent. Rather than Canada imposing its ideas about democracy and accountability, it may be that our governments have much to teach the broader Canadian society about these values of political participation.
Further, and contrary to myths that we have heard repeated in this Parliament, First Nation leaders are not attempting to hold on to the Indian Act system for their own self-interest. This myth could not be further from the truth. Our leaders are working hard to work beyond the Indian Act to make progress despite the Indian Act. First Nations want change and are willing to work towards it, especially in the area of elections and leadership selection.
The Indian Act does not provide an elective system that reflects or responds to First Nations needs or values. A useful place to turn, in looking at solutions, is to consider the work that was brought forward by First Nations in the wake of the failed First Nations Governance Act. Starting in 2003, First Nations came together with a common purpose, to create a vision of modern and accountable governments and a vision of the principles and processes necessary to achieve this real change.
The Recognition and Implementation of First Nation Governments, RIFNG, initiative, outlined three main streams of work: policy reforms, structural change and building capable governments. It also brought forward the key elements or principles of recognition, including: recognition and compliance with section 35 of the Constitution; recognition of treaty and existing relationships; recognition of First Nation jurisdiction; recognition of First Nation governments; and recognition of the evolutionary nature of relationship.
The linked and related matter of reconciliation was also elaborated by the following elements that represent the work of updating the relationship consistent with recognition: facilitation of nation-building, fiscal relations, intergovernmental arrangements, dispute resolution, and accountability.
The objective of the framework is to change fundamentally and improve the way the federal government deals with First Nations, from negotiations to the development of legislation and policy. This work and the accord signed by Canada and First Nations in 2005 remain an important foundation for change and a clearly articulated alternative to current INAC practices and continued colonial imposition based on the Indian Act.
I close my remarks by reiterating that First Nation chiefs are not against change. What we are against is any further imposition by the Government of Canada, and measures that undermine our Aboriginal and treaty rights as well as the standards established through the United Nations Declaration on the Rights of Indigenous Peoples.
We have heard about the interests of INAC to impose a quick fix and adjust provisions like the term of office. Such measures miss the mark entirely and miss the requirement and opportunity to begin the real work of reconciliation.
I have heard it expressed by members of Parliament and the Senate that we need to look at small, bite-sized pieces to advance these issues. While I do not disagree entirely, I know that such an approach must set out in the right direction. Tinkering with the Indian Act and making a minor modification is not the right direction; engaging directly and forthrightly with First Nations to build capacity and understanding is.
No one feels more frustrated about lack of action than we do. For some, these issues are a topic of study; for us, it is a matter of survival culturally for our communities and for future generations. We want nothing less than capable governments with true decision-making power over the matters that affect our lives. Continued tinkering with sections of the Indian Act will not get us there. It is like painting a house when the foundation is crumbling.
We need to build a new structure from the foundation up and to move away from trying to implement a policy direction set in the late 1800s. I encourage this committee to recommend that the government start a process of genuine engagement, to enable and facilitate First Nation solutions to this core matter of First Nation governance.
The Chair: Thank you, chief. Colleagues, I will ask the first question.
In your presentation, chief, you say that:
INAC's approaches have included the development of a conversion to custom policy, which purports to allow First Nations to adopt their own code.
I know that a lot of the First Nations you represent operate on a hereditary system of leadership. Has that ever been done, to your knowledge; namely, going away from Indian Act elections to a custom code situation and adopting a hereditary system under your custom code?
Mr. Toulouse: I am not aware of that being done in its entirety. I know there are challenges with a hereditary system trying to deal with matters of a First Nation. I am not Haudenosaunee, I am Anishnabe, so I cannot speak to how their full system works, but they have traditional governance. They also have an elected system under the Indian Act. They also have had a change. They have not incorporated their full custom, but they do have their own code.
They are still trying to reconcile both. Work is ongoing within the community to have the traditional government be the full government.
They still have two sets of governance. One takes care of the lands and certain jurisdictions, and elected officials again are responsible to administer the Indian Act as they understand it; those programs and services they sign off on.
The Chair: In the Nishnawbe-Aski situation, do you have hereditary chiefs and an elected body as well? Do you have the ``dual system''? Maybe that is the wrong term.
Mr. Toulouse: In the community I come from, Sagamok Anishnawbek, and the surrounding communities near us, we do not have a hereditary system. There no doubt was one. Is it something that has been maintained? It has not been maintained in all the communities. There is an understanding of the responsibilities that people have. There are healers, teachers and people who are practitioners in relation to ceremony and all these things. Those responsibilities are still intact. We do not have documentation clearly showing what that relationship is.
In my home community, we fall under the Indian Act, section 74, in terms of elections. We do not have a hereditary chief in our community.
Senator Lang: Welcome here this morning. You stated that you all recognize that two years is insufficient time to develop, plan and be accountable for results, yet at the same time you go on at great length that there should be no change unless the whole system changes. Obviously, that approach would put you in a situation where, if changes are not made along the way, we could be 10 years from anything of any consequence happening. We have gone through the governance act and the Kelowna Accord. Perhaps we should look back at history and ask whether we can learn something from it.
First, is your organization committed to a longer term of office for chiefs and councillors from the two-year period to, say, a four-year period to eliminate some of this political instability?
Mr. Toulouse: The quick answer is that First Nation communities are dealing with that very issue. I think everyone recognizes that the period of two years must change. We are saying the government should do something different, because all we have seen is the status quo, which is: We will figure things out for you, chiefs and First Nation citizens; we have all the answers.
We need to sit down together and engage and collaborate on what the priorities are. Yes, the leadership elections probably would become a priority that First Nations are willing to deal with. All we are saying is, let us sit down, identify the priorities, identify the agenda, and look at what those gaps are in terms of policy that we need to work on.
We see that we can deal with these matters in an expeditious way if we engage in a more meaningful and collaborative approach, which is what the Assembly of First Nations and the Chiefs of Ontario have advocated. We need to sit down in a most respectful way and come up with an agenda that we can clearly check off as we proceed to deal with the issues and the various policies that continue to provide some kind of negative impact at the First Nations level, or legislation in this particular case.
Senator Lang: Obviously, this forum provides you with, at least in part, the ability for that engagement. Specifically, the committee has made the decision that this is an area we should study because the question has been brought up by your organizations and others; whether we can do something to strengthen the weaknesses and to help. That is what everybody around this table is here for.
It goes back to the fact that instability is caused by the two-year period. There is some consensus, depending on accountability, that it should be a longer period of time.
I want a clear understanding, as a member of the committee, that although we will not change the whole structure through this process, we have the ability to recommend changes that can be put into effect by government in conjunction with the First Nations. If we were to recommend an enabling amendment to the Indian Act that will allow those First Nations to extend their period of election from two years to a maximum of four or five years, would you support it? It would be up to the First Nation to make that decision, but at least the law would allow them to do that. Would you support that amendment?
Mr. Toulouse: The First Nations in the two-year arrangement would no doubt support that. We need to look not only at tinkering with part of this legislation but to have much more of an impact and a wider effect to change things in a positive way, why do we not collaborate; sit down and identify an agenda that looks not only at tinkering with the two years to a longer term but many other things that would be more useful in the recognition and implementation of First Nation governments?
I come back to that point always because that is what First Nation leadership and citizens are talking about. How do we improve the lives at the ground level, at the community level? Engagement and having collaborative discussions is the way forward, I am being told. We need to come up with a common agenda. Again, imposition of policy and legislation will be met with opposition, as you have seen, when there is a suggestion of amending the Indian Act.
The opposition is mainly because there are so many different things wrong with the Indian Act that I think First Nations leadership would love to have the opportunity to tell government, Here is a way forward or, Let us sit down together and identify at least five or so common agenda items that can be worked on over a period of time. That collaboration does not have to take decades or years necessarily, but it is something that builds on the capable First Nation governments and the kind of structural change that must take place to see capable governments.
Senator Lang: I want to go back to the point about the two-year and four-year period. If an amendment were brought in, it would not be imposed. It would be enabling. The First Nations themselves would decide whether they want to go from two years to four years.
Would a four-year term, as an example — for those First Nations that want it, if it provides further political stability for those First Nations — be a better situation to help build a major change in the system the way it is? Those organizations then would have a longer political life to give you the basis to make further political change?
Mr. Toulouse: I know your point. I know the argument you are making. Let us go back to the situation that I mentioned earlier with Six Nations. Again, I am not Haudenosaunee . I hope I am not disrespecting the people there. Their traditional governance has been there forever. They still need to reconcile all these things that INAC has imposed on the community.
To say that leadership is all we will look does nothing for that community. For several years, they have needed to look at a mechanism or a vehicle that would allow them to reconcile their current situation. To say to communities that we will change to a four-year leadership term and things should improve — they might improve but there are many other aspects that play into the statement.
We cannot say, we changed the Indian Act from two years to four years, so everything should be fine. That will not necessarily be the case because there is the resourcing issue, the issue of the 2 per cent cap and many other issues that First Nations communities have to grapple with. Much of the issue is based on the current policies that do not allow for negotiations on self-government, that prevent groups of First Nations or nations from moving forward with an agreement on self-government.
Moving from two years to four years will not solve all the issues of First Nations because there will be issues still around security and stability et cetera. I go back to the need to recognize and implement First Nation governments, the need for policy reforms and structural change.
Senator Carstairs: Mr. Toulouse, I hear you clearly on the issue of no tinkering with the Indian Act, and if it is to be changed, then it must be done as a whole and not on a piecemeal basis.
I will address another issue that you raised with respect to the audit. You said that in the allotment of money that you receive, $3,000 is put aside for audit, where in reality, the average cost of an audit of a First Nation community is $30,000. Where do you find the remaining $27,000 to pay for this audit? What other services need to be cut to find that auditing money?
Mr. Toulouse: Each community will struggle to deal with the cost in their own way. I have seen some communities create a deficit. They might compound an existing deficit. After many years of this deficit, they might find that co- management is required because under INAC policy, reaching a certain percentage deficit calls for remedial action that might include a third-party manager coming in to manage their affairs.
For the most part, it is a case of doing less in certain areas. Something is taken away. That something could be in band administration or social housing, or it could be less roadwork or less maintenance on flushing out the existing water lines. First Nations do without somewhere because of the lack of resources in band support funding. The audit is only one example. There are many examples of band support funding falling short of the expected resourcing on the part of government or other people. It is always a case of robbing Peter to pay Paul when we have elections, audits and so on.
Senator Carstairs: In a similar vein, when I was a member of the Manitoba legislature, we spent about 34 per cent of our provincial budget on the delivery of health care. That amount is now 44 per cent. In 1996, a 2-per-cent cap was imposed by my government. What impact has that cap had on the delivery of such things as social housing, health care and education?
Mr. Toulouse: There has been tremendous growth in our First Nation communities. It has been recognized that we have the largest growing population in this country. The impacts have been tremendous. We have seen a larger gap in the education of our children. We receive as much as $4,000 less per child for education in certain areas than other provincial school boards.
Since the 2-per-cent cap was implemented, the purchasing power of the dollar has diminished. The 1996 dollar is worth about 20 cents today. Our First Nations administrations do more with less, which is the real impact of the 2-per- cent cap. There is much demand to continue with the reports that the Auditor General has identified. First Nations are inundated with more than 160 reports in any given year. People are so busy preparing the reports that many of our services are not doing what they are supposed to do — provide services to community members. They are busy preparing reports and being accountable to the contribution agreements that many administrations sign on to.
The 2-per-cent cap has had a tremendously negative impact on our First Nation administrations to continue their work for their communities, and to do what they agreed to in the contribution agreements that they sign off on.
Senator Carstairs: My final question does not relate to governance. Can you give us an update within the community for which you are the Grand Chief in respect of the H1N1 virus?
Mr. Toulouse: I am receiving regular updates. It is becoming serious in Northern Ontario. We have about 20 fly-in communities in Northern Ontario. It is amazing how quickly something like that virus can come into a community. It is essentially scaring the people and immobilizing the community. At the same time, there are many concerns around the nursing shortage, which happens all the time. There is the whole issue of sustaining that service. It is of greater concern that six First Nations communities in Northern Ontario have H1N1 in their communities.
We have situations of many more people confirmed with influenza, or something, that is really scary for those communities. I guess one wonders, how is it that those communities, being so isolated, are the most impacted? Is it because we all have numbers and it is easier to track these numbers? Because we all are in a confined community, on a reserve, is it easier to keep track? I am not sure.
It is concerning in terms of the ability for these communities to sustain nursing and the kind of treatment they require. I have been assured by the Director General of Ontario Region First Nations and Inuit Health Branch that they are doing everything and anything that needs to be done to ensure that the antivirals or whatever it is they need is up there and ready to go if they are not already giving the flu shot to the community members. I am hopeful that we will not see the situation compound but it is inevitable. It is a pandemic.
In a number of communities, we have housing situations where a house meant for one family holds three or four families. That is the sad part. I have seen those communities that struggle, and they have been in the news.
We are not different than what you have seen in Northern Manitoba. It is the exact same kind of situation where services and where the past non-development of housing is a problem.
Chiefs say to me; Regional Chief, we need you to advocate on our behalf. We want to go after some of the money and resources for housing at the Canada Mortgage and Housing Corporation that the federal government announced but we cannot because Indian and Northern Affairs Canada has not allowed us to develop our infrastructure, meaning serviceable lots. There are no serviceable lots in many of the First Nation communities so they cannot go after the housing money. They are stuck. That housing money stays there while the First Nation communities try to develop serviceable lots without much success to move expeditiously on these things. They are told there are no resources to perform their capital planning to ensure they will have serviceable lots.
We have situations where First Nation communities, yes, need to tear down condemned homes that are no longer safe for anyone to live in or even renovate. We have communities that currently have families living in these dilapidated conditions and the communities are at least rebuilding those houses, but that is all they can do because they have no serviceable lots.
It is a real challenge and concern when the majority of First Nation communities are overcrowded and when we have the potential effects of this pandemic.
Senator Lovelace Nicholas: Thank you and welcome. You mentioned collaboration a few times in your presentation. You want to collaborate with chiefs and the governments. Are any women's organizations involved in this process?
Mr. Toulouse: Absolutely; I see a women's council in each of the organizations like Union of Ontario Indians, Grand Council Treaty 3, these provincial-territorial organizations and Nishnawbe Aski. We also see youth and elder councils. The councils capture all of our demographics within the First Nation communities. Again, coming from a family of 13 kids with 10 sisters, I respect women. I have had no choice but to live with the female gender and I respect and understand that they have a lot to offer in responsibilities as well.
As recently as this past year, we undertook real work around the water declaration, and the women came forward and essentially said this is our responsibility. They undertook to perform the ceremony and continued to teach in terms of the responsibilities of women in all aspects, particularly in taking the lead in important things like our water declaration and the need to protect water.
Senator Lovelace Nicholas: We have heard witnesses in the past describe problems and difficulties in mail-in ballots within their communities. What is the situation with your community? If there is a problem, is there a suggestion for a solution?
Mr. Toulouse: There is a problem in reaching all First Nations community members or citizens that are not on- reserve. Many communities have that challenge to process the mail-in ballots, and so on.
The cost is one problem. There are no resources to find their people. I think First Nations have shown a lot of goodwill in trying to locate many of their community members, but without the resources, it is challenging. I think they put out notices in cities to bring elections to the attention of their community members if they happen to reside in an urban setting, wherever it may be. The problem is more cost than anything else to dedicating time and equipment to locating community members. I think the majority of First Nations want to locate those community members. Again, often they cannot afford to.
Senator Brazeau: Chief Toulouse, I want to pick up on the issue of audits. You mentioned the INAC study, the cost- driver study. I am not disputing the figures in terms of the cost of audits. However, are you saying that, as part of the funding submissions and proposals that communities forward to the department, the budget line item for the actual costs of audits is not included as part of their funding agreements?
Mr. Toulouse: I think it would be great if the Department of Indian and Northern Affairs were to take proposals. They do not. Their funding is all formula-driven. If a band has a certain population and a certain kind of infrastructure, those factors are plugged into a formula and the formula spits out what the band support funding will be. It is based on old factors.
As an example, there were cost sensitive and non-cost sensitive factors. The reason I know some of the detail is we used to go through this process manually before computers came and things were automated. As a former band administrator, we made the calculations manually, including the total population on-reserve, off-reserve, number of employees, the kinds of roads they have and the number of houses. It was all plugged into the formula and the formula spit out what the band support funding ought to be.
It did not make sense at the end of it all because we had situations where we knew the audit costs would be $30,000, but based on the formula and on the factors, we received only $3,000. How to adjust that was always one question I faced as an administrator. How do we ensure that the federal government does not think that we can actually conduct an audit for $3,000 when the invoice that comes in from the auditor is $30,000? How do we continue that operation? Again, those are the frustrations and concerns that the leaderships have raised continually with the Department of Indian and Northern Affairs.
There is a myth that $10 billion is reaching our First Nation communities, and it is not. If $10 billion reached the First Nation communities, you would not see as much poverty in terms of the infrastructure and housing and all the social problems in our communities. At a minimum, we would have good infrastructure, good governance and an ability to build capable governments. The band support funding says it covers a host of functions and responsibilities at the administration level when, in reality, it barely touches a lot of those functions and responsibilities.
I hope most people here recognize that own-source funding is virtually non-existent in many of the First Nations communities. When Senator Carstairs asked where the rest comes from, it is the deficit. It is the big hole that is created when that need is not recognized.
Senator Brazeau: Are you saying that the department is short-changing First Nations communities in being able to have the resources necessary to conduct a proper audit? If you are saying that, can we view evidence whereby a First Nations community would have provided the actual cost to conduct an audit, and the department refused to forward the extra resources necessary above and beyond the $3,000 currently allocated?
Mr. Toulouse: I can probably show you 620-some communities that would easily come up with that situation if they knew it would get them somewhere.
If each First Nation was to send their actual invoices, the Department of Indian and Northern Affairs would not know what to do with them.
You are asking why the First Nations are not showing the real costs. They have been. The problem is that they recognize so well now, because they have been trained as administrators, that they are wasting valuable time and energy by trying to obtain more funding when they know what the answer will be, namely, that the formula is the formula. Many First Nations leaderships write and provide alternatives and proposals to government, maybe to make adjustments or at least to deal with it. However, those proposals always fall on deaf ears, or the Indian management development monies that talk about initiatives or flexibility are so minimal that this funding does not allow First Nation communities, organizations or administrations to bother going after a couple of extra cents because of the amount of work and effort it takes to go for the real need.
Again, it is a situation where the Department of Indian and Northern Affairs has told each administration: Here is the way it is; here is the contribution agreement, and if you do not like it, then you receive nothing. Again, that situation causes many of our communities to sign off on these contribution agreements 99 per cent of the time in some kind of process. They recognize that if they do not sign off on these agreements where they could complain and say, the funding does not reflect their true need, then they receive nothing. Then, quickly, the First Nation people, the citizens, ask their leadership: What are you doing? The leadership tries to explain to the community that they have to take a stance, but people are starving.
The result does not do any justice to the original issue, which is trying to make a point because our people are starving. Because our people are in so much need, the government has an easy time in enticing administrators, chiefs and councils to sign off every single year on these contribution agreements, agreeing that they meet the need and they meet the requirements, terms and conditions. We all know that if bands do not sign off, they will receive nothing.
Senator Brazeau: You mentioned earlier that you were against any further imposition in terms of legislation by the Government of Canada that will undermine Aboriginal and treaty rights. How do you reconcile the fact that the current Indian Act, which was imposed in 1876, has undermined our Aboriginal and treaty rights, and continues to do so? It acts as a barrier to much of the progress we can make on matters such as economic development, access to natural resources and so on.
You also stated you were against any piecemeal amendments to the Indian Act. If I take the example of Bill C-31, which was a piecemeal amendment to the Indian Act, that piecemeal amendment brought some positive notions and removed a lot of the discrimination that took place under the Indian Act, by having people regain their status.
Do you agree that any progressive change or any change that provides added benefit to the status quo is welcome, given the fact that we have been under the auspices of this Indian Act for 130-plus years, and few changes have been made since then?
Mr. Toulouse: To be clear, I am saying there is a duty to consult and accommodate.
As an example, in Ontario, when the provincial government wanted to amend the Mining Act, our community leaders and people said that there must be consultation and accommodation on the way that the Supreme Court has ruled for it to be used. In the process, the chiefs and community members are saying: Does this legislation meet ``free, prior and informed consent'' that we believe is needed?
As we worked to advocate for the First Nation interests in the amendment to that piece of legislation, we said, as an organization and as representatives of the political and territorial organizations, sitting down with the provincial government, that, at the end of the day, it is still up to the communities if they feel that the amendments reflect the free, prior and informed consent that they believe has to be met.
Again, it is something we are waiting to see. At the end of the day, when we have amendments like Bill C-31, it helps a lot of people who are brothers and sisters needing to be recognized as our brothers and sisters.
Not necessarily taken into account in their entirety were the financial aspect and the resources required — the impacts of those aspects on housing and infrastructure at the community level. All these things are not necessarily considered to a point where the bill changes things like the band support funding or the current formulas that are used that the Department of Indian and Northern Affairs developed long ago, prior to Bill C-31.
We have these impacts. Consultation and accommodation are, in this day and age, what First Nations said must take place at a minimum when the government considers policy or legislative amendments.
Senator Hubley: Welcome, Chief Toulouse. I apologize for being late.
You mentioned that the Indian Act did not provide an elective system that reflects, or responds to, First Nations' needs or values. Many use the Indian Act to administer elections. Can you elaborate on that point a little bit? Why does the Indian Act not satisfy the needs of First Nations when it comes to elections? Then, perhaps you can explain why the Indian Act should not be changed, and if that change is considered tinkering, an adjustment or an improvement. Will you share that view with us?
Mr. Toulouse: Can you repeat the question again? I do not want to go off on a tangent.
Senator Hubley: You mentioned a couple of things in your presentation that I found of interest. First, your leaders were working hard to work beyond the Indian Act — to make progress despite the Indian Act. That bothers me in a way. It sounds to me that the Indian Act is some sort of a barrier to what your priorities and objectives are.
You also said that the Indian Act does not provide an elective system that reflects or responds to the First Nations' needs or values. Are there needs and values that we are not aware of? Will amending the Indian Act not improve it for the First Nations, or is that something that is so connected to the rest of the Indian Act that it cannot be drawn out and improved?
Mr. Toulouse: I will go to an experience that I had as Chief of Sagamok Anishnawbek years ago. We were looking at the Indian Act and debating to change the code as a council. Initially, we looked at our financial situation and said, if we stay within the Indian Act, at least somebody is paying for the election. We figured at least there is something there, as much as we knew that a whole host of things was wrong with it. Since then, part of the band support funding does not cover the selection process, the leadership selection; the Indian Act does not cover those costs anymore.
We took a look at what we thought was something we wanted to go back to, which is our clan system. Our clan system is not necessarily documented, or something that is recognized as something right now that one could go to, but we conducted the research. We brought in the elders and people that have completed extensive research and work in this area, which is what we wanted to build on.
Again, what prevented us is the wonderful job that the Indian Act has done in splitting our true nations apart. Sagamok Anishnawbek is a First Nation community, part of the larger Anishnawbek Nation. The Anishnawbek Nation, as far as I understand it, in certain areas, had the Three Fires Confederacy as part of its family.
In our community in Sagamok, we recognize that people that live there, the Anishnawbek people, are Ojibwa, Potowatomi and Odawa as their ancestors' heritage. We are part of the Sagamok Anishnawbek. We are also part of a tribal council that provides service delivery to seven communities; and the tribal council provides services, because of economies of scale, that need to be shared.
We also are part of a political territorial organization called the Union of Ontario Indians — Anishnawbek Nation, as they are also called, but the corporate name is Union of Ontario Indians.
We sought to develop our constitution, our own self-governance, if you will, and we are developing this constitution internally in our community. We found that there was, and there continues to be, so many challenges and roadblocks to the true nation building that needs to take place.
As an example in Ontario, on distinct languages, the larger groupings, we have the Anishnawbek. We have the Haudenosaunee, the Mushkegowuk and the Lenapi.
Those are the larger groupings, the larger nations that current leaders aspire to return to, which would take care of many of the questions and issues you raised in terms of beyond the Indian Act and how we would do it.
Again, this is the work I am talking about that is essentially being done outside the Indian Act. Progress is slow because there is no resourcing for this work. We have leadership struggles because they are busy administering programs and services at the community level, and not a lot of time is focused on the larger issues of nation building and ensuring that the laws the First Nation wants to implement at its community level are consistent with other Anishnawbek communities. These are the current challenges that First Nations have as they move forward in dealing with self-government.
Obviously, negotiations are going on with the federal government that sometimes are being understood at the community level, at the First Nation level, because they are happening at an organizational level and not necessarily at the First Nation level. I am talking about the real First Nation-level work that takes place.
You have heard of gatherings, like the Three Fires Confederacy gatherings. You have heard the Iroquois caucus is meeting. They are talking about the same thing. Everything is outside the Indian Act.
Again, that is why I think First Nation leadership has recognized that, if everything is to fit in relation to section 35, everything about who we are as distinct peoples — we have the inherent abilities and right to govern ourselves and to ensure that our nations, languages, culture and ceremonies — will remain intact. That is really the challenge that First Nation leadership has.
When the youth these days come to our assemblies, they remind leadership that they have a tremendous responsibility to ensure that the language — ``the language'' is what they keep saying — is not lost. In regard to he ceremonies that have been somewhat hidden because of the residential schools and these kinds of things that have negatively impacted who we are as a people, our people are saying: No, we cannot have that anymore.
We need our people to believe in who they are and to stand for what we believe in, in terms of our way of life and our ceremony. We have doctors, lawyers, teachers, historians and archaeologists; we have all these people to make our nations proud and strong.
What we need is the ability to do this. Mostly, resources are what are needed and lacking. We want to be active participants in the Canadian economy. We see the need to have businesses in our First Nation communities. We see the need for economic prosperity, not only for the communities, but for the individuals themselves.
Even though we all believe in sharing, I think there is that need to contribute to the Canadian economy. We need to contribute to Canadian society by continuing to express our language and share our ceremonies in the best ways that we can because that is who we are and that is what we have always done as First Nations people.
Senator Hubley: I will come back to the issue of governance. You touched on economic development briefly at the end of your explanation.
Do you see either the two- or four-year term as being of more or less advantage to having a governance structure that is consistent with other governments? Do you see that in any way as an advantage when you are developing your economies?
Mr. Toulouse: As I mentioned, you will not have any arguments from anyone to recognize that, in two years, we cannot do anything in terms of implementation and development of a plan. We need more time.
However, in terms of economic development, stability is necessary. We also need the capacity and capability of a local government to manage affairs. We need the policy reforms, structural change and capable governments for economic development to take off in our First Nation communities.
Senator Raine: Thank you very much for coming. We are all aware that First Nation governance is a big issue. I can see that, with the McIvor case, we now have a kind of deadline coming where there will be more people as status Indians. The lack of resources will become even more critical.
I suggest that, when you have a situation like this, people can mobilize to take steps. You said change has proven difficult as First Nations, and that INAC has started at different places and aims for different outcomes. That is probably a little bit of a reality.
If INAC was to provide short-term fixes to help in a long-term outcome — if we all accept that the long-term outcome is healthy, self-governed First Nations — what would a couple of short-term fixes be to help us arrive there?
Mr. Toulouse: The immediate response is: Implement the treaties. We have all signed treaties. Justice Linden, who finished the Ipperwash Inquiry, quite rightly pointed out that this province was founded on treaties. It is unfortunate, he writes, that only one party has benefited from the treaties and it was not the First Nations people.
We need to look at the resource-benefit sharing that is the spirit and intent of the treaties. We need to address that issue because First Nation leadership and administrators are tired of the ``cap-in-hand'' routine. Every time they go to the provincial or federal government, they do so with a cap in hand.
It is frustrating. It is downright embarrassing at times having to beg for a little bit of resources to do something. It should not be that way because we signed treaties. We need to implement those treaties. If the Department of Indian and Northern Affairs or the Government of Canada can find a way to implement those treaties and the resource- benefit sharing, our lives would be much better in respect to our ancestors and the spirit of our ancestors who signed those treaties for our betterment and for the betterment of this country. The agreement was to share.
The four basic foundational principles that Anishnawbek people have always been known for are the honesty, sharing, the kindness and the ability to be happy in terms of being able to achieve those things. Those things are some of the foundational principles in moving forward.
I know you are tasked with the responsibility of trying to improve certain things. In the particular case of this legislation, we need to look at the larger picture of what is ailing First Nation communities. Seeing our treaties not implemented is a big cause. If we can have the federal government look at resource-benefit sharing and move away from the program and services kind of issues, I think First Nation leadership and the citizens will prosper.
Senator Raine: I will make one comment. Your answer is wise. I would say, though, that not all First Nations have signed treaties. In British Columbia, where there are no treaties, I think they definitely are moving towards making agreements with regards to resource sharing without treaties. It is interesting that it is perhaps a way to learn from each other.
The Chair: It is happening.
Senator Raine: Yes, thank you.
Senator Peterson: Thank you, chief, for your presentation. Following up on the treaties, do you think the Indian Act was an attempt by government to put into words what they believed the treaties said?
Mr. Toulouse: No; I believe the Indian Act was an attempt to control the people from the beginning.
Senator Peterson: When you talk about these other major issues like resources, education, housing and health, they obviously come under the treaties. Has it ever been defined what the treaties will cover?
Mr. Toulouse: In this day and age, the spirit and intent of treaties are something that I hear our people talking about on a regular basis. I am part of a treaty called the Robinson Huron Treaty, 1850.
We recently had a gathering to bring in youth, elders and community people near the First Nations community where the treaty was signed — Bawating as we call it, and Sault Ste. Marie as you know it. The gathering was held in the First Nations community outside of Bawating, Ketaganseebee Garden River and Batchewana. People had an opportunity to talk about what they believe the spirit and intent of the treaties were.
Our people currently say there has to be a different way to do things. We see continued imposition of jurisdiction in dealing with programs and services. Our leadership wants to deal with much larger issues. We want to protect our children. We want to ensure that women have a continued say in understanding these responsibilities. We want to ensure that our seniors and elders are taken care of. We want what everybody else wants — a better place for all our citizens to live, and to enjoy what everyone else has enjoyed and continues to enjoy.
Senator Peterson: I agree with you. However, the Indian Act is there. No one likes it, but no one wants to do anything with it — touch it or amend it. When you talk about building this new structure, are you thinking of something outside the Indian Act?
Mr. Toulouse: When I talk about recognition and implementation of First Nations governance, obviously, it is outside the Indian Act because the Indian Act does not provide for that. The Indian Act has the minister responsible for everything and anything.
I am saying that we need to be responsible. We want the recognition and implementation of our First Nations' governments. We will achieve this through certain works that include policy reforms, structural change and building these capable governments. We have put in place processes and suggestions on how the Department of Indian and Northern Affairs can reach this goal collaboratively with us. We have talked about recognition and compliance with section 35 of the Constitution. This provision includes recognition of treaty and existing relationships, First Nations jurisdiction, First Nations governments and the evolutionary nature of relationships.
This is what we continue to put forward as the way forward. If we are not doing this, then we are back at the status quo. We know the status quo continues to create a wider gap between the haves and have-nots in terms of the poverty our communities are seeing.
The Auditor General of Canada has said that there is a huge gap in education. If we do not deal with recognition issues, we will see that gap in education continue because we are talking about the status quo — the same thing. That is what needs to change.
Senator Peterson: I agree with you totally in the bigger picture, but we are now talking about Indian Act elections. Senator Lang recommended that we provide enabling legislation to allow First Nations to do this — it only allows them to do it; they can say yes or no. Is this a road we should go down or not?
Mr. Toulouse: We need to look at doing something differently. We want to have governments that are accountable and we need to have a vision of principles and processes necessary to achieve real change. Again, I go back to the point that we need to do things that recognize and implement First Nations governments. I do not know how many times I can say that. That is the way forward.
A little tinkering to the Indian Act will provide an extra two years of elected leadership, but there is still a whole host of issues that need to be dealt with. We need to have the recognition and implementation of First Nations' governments. However, moving from two years to three or four years does provide a little more time for a leader to plan, develop and implement some projects.
The Chair: This is our last question. Please be brief, Senator Brazeau.
Senator Brazeau: We talked about reconstituting the true historical First Nations. The Royal Commission on Aboriginal Peoples recommended that we look at reconstituting the nations such as the Mi'kmaq, Mohawk, Algonquin, et cetera. I wholeheartedly support that 100 per cent.
Current self-government agreements have been signed in this country where nations have already had discussions with their people to implement exactly what you are saying. They have negotiated with the Government of Canada and signed agreements that will lead them to greater self-sufficiency in the future and give them the capacity to move there while they become self-sufficient.
You mentioned earlier that one reason these discussions are not moving at a fast pace is because of a lack of resources. Is there anything preventing First Nations communities from having these discussions on nation building and self-government? I cannot see why a lack of resources becomes an issue to go into communities and talk about the larger picture, instead of remaining under the status quo.
Mr. Toulouse: When I say lack of resources, that is only one issue. The bigger issue in talking about self-government negotiations is that the inherent rights policy is limiting. The policy does not truly talk about First Nations wanting to exercise certain jurisdictions. It talks about administrative capacity to manage existing programs and services. It does not go far enough, as far as First Nations' leadership is concerned. The leadership want to see recognition and implementation of First Nations' governments through the exercise of jurisdictions.
Again, the inherent rights policy is limiting in terms of what negotiators can negotiate from the federal side. It frustrates the First Nations leadership. It takes such a long time to reach an agreement because of the limitations of inherent rights policy on self-government.
Regarding nation building and why they are not moving toward it, I believe they are attempting to do what they can. The problem is that the current Indian Act has our First Nations leadership administering programs and services for which the federal government signs contribution agreements, as the major focal point, if you will. We all know that our people are in a situation where they have come through residential schools and we continue to see the impacts of the Indian Act.
We need an opportunity to heal. Our people are still grieving and in the healing process. We have experienced multi- generational impacts in loss of language, ceremony and culture. We are getting it back; we have not lost it entirely. We need to invest in our elders, our women and our youth so that we can demonstrate to the world that the indigenous population of Canada is alive and strong and continues to have traditional languages, ceremonies and spirituality for everyone's benefit. That is who we are. We are a distinct people. Our youth remind us of that, and we have to do something about it.
The Chair: Mr. Toulouse, thank you for sharing that with us this morning. You have presented excellently and responded candidly, which we appreciate. As you can understand, we have a challenge before us. It is not easy because many of us are asking how we can devolve from the Indian Act and meet the needs of our First Nations right across the country. We thank you and Ms. Lazore for appearing this morning.
Senators, we will stay in full committee to deal with the supplementary budget. Originally, we were to travel to Alberta but we have changed our plans because in terms of elections, the Indian Act applies to a greater degree in British Columbia. Therefore, it is the decision of the steering committee, which we discussed with the committee, to travel to British Columbia in that respect.
We have to submit a supplementary budget, which is $172,000 in total. However, I believe this amount is about $42,000 more than the budget prepared for the Alberta trip. However, we will be in B.C. for a day and a half longer than we had planned for Alberta. The Manitoba trip was budgeted at $138,500, and we expended about $80,000. That difference provides flexibility in budgeting for the B.C. trip. We will mitigate the costs where we are able to do so. Are there questions on the supplementary budget?
Senator Raine: I think the hotel costs are a little high at that time of the year.
The Chair: This is a budgeted amount. When we were in Manitoba, we spent just over one half of the amount budgeted. I am sure that we will be prudent in seeking accommodations for this part of the study.
If there are no questions, I ask for a mover. It is moved by Senator Lovelace Nicholas. All in favour? Opposed? Carried, unanimously.
We will move in camera for the remaining items.
(The committee continued in camera.)