Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 27 - Evidence - October 18, 2017
OTTAWA, Wednesday, October 18, 2017
The Standing Senate Committee on Aboriginal Peoples met this day at 6:47 p.m. to study the new relationship between Canada and First Nations, Inuit and Métis peoples.
Senator Lillian Eva Dyck (Chair) in the chair.
[English]
The Chair: Good evening. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples, either here in the room or via the Web. I would like to acknowledge for the sake of reconciliation that we are meeting on the traditional, unceded lands of the Algonquin peoples.
My name is Lillian Dyck from Saskatchewan, and I have the honour and privilege of chairing this committee.
I will now invite my fellow senators to introduce themselves, starting on my right.
Senator Tannas: Scott Tannas from Alberta.
Senator Doyle: Normal Doyle, Newfoundland and Labrador.
Senator Enverga: Tobias Enverga from Ontario.
[Translation]
Senator Mégie: Marie-Françoise Mégie from Quebec.
[English]
Senator Boniface: Gwen Boniface, Ontario.
Senator Pate: Kim Pate, Ontario.
Senator Christmas: Dan Christmas, Nova Scotia.
Senator Lovelace Nicholas: Senator Lovelace Nicholas, New Brunswick.
The Chair: Thank you, senators.
Today we continue our study on what a new relationship between the Government of Canada and First Nations, Inuit and Metis peoples could look like. We continue looking at the history of what has been studied and discussed on this topic.
We are pleased this evening to welcome our witness for the first hour, Mr. Howard Sapers, who we all know has many years of experience working in corrections and is an expert on that topic.
Mr. Sapers, you have the floor. You will give your presentation for 5 or 10 minutes, following which there will be questions from the senators. Please begin.
Howard Sapers, as an individual: Thank you for the invitation to be here, senators. It is a privilege to be back in this committee room. I want to commend you for doing this study.
I want to begin by reminding you that I am here as an individual, not representing anything or anybody except me.
I will start my comments by setting some context. I am so happy that your study is future-oriented. I will go back in time a bit, and then I hope to set up the discussion for some interesting speculation about the future.
I will start with some statistics gathered from a couple of primary sources, in particular, a document that is published every year called the Corrections and Conditional Release Statistical Overview. I will be relying on the latest version of that and also the Office the Correctional Investigator, which holds a special place in my heart. It always produces worthwhile information and statistics. Those will be a couple of primary sources I will rely on as I set the context.
We are all familiar with the overrepresentation. It is easy to say that without really understanding how significant it is and how it seems to be relentless. In the last five years, the indigenous inmate population has increased by just over 21 per cent. The good news is that it has slowed down a little, but just a little. The non-indigenous inmate population has declined by 12 per cent. It is as important to understand that as it is to understand the increase.
Almost everything I am about to say tonight is even worse when it comes to talking about women who are court-involved, in conflict with the law and who end up in custody provincially or federally. In the federal system, since April 2012, the female indigenous inmate population has increased by nearly one third — about 32 per cent.
I was shocked when I was still the Correctional Investigator of Canada that Canada reached a milestone of a quarter of the federally incarcerated population being of indigenous heritage; it is now over 27 per cent. For women, it is about 38 per cent of all the women incarcerated federally.
It is also bad in the community. Since April 2012, the supervised population of indigenous men and women has increased by nearly 50 per cent. Now the supervised community population are people on a form of conditional release, such as parole. That has gone up in general as well, which isn’t a bad thing, but it has gone up about 10 per cent. That means it’s about five times higher for indigenous men and women. Aboriginal offenders currently comprise 18 per cent of the total supervised population, but for women it is nearly 26 per cent.
This high rate of incarceration has been linked to many things over the years: systemic discrimination, racial or cultural prejudices, and economic and social disadvantage. But it is not just systemic discrimination. This is another point I want to leave you with. We can’t simply say “systemic discrimination” fast enough and not really understand it. It is the lingering artifact of colonialism. It is ongoing colonialism that indigenous men and women in this country are experiencing when they come into conflict with the law or courts.
The historical factors have been documented and recognized by the Supreme Court, famously in the Gladue decision in 1999 and reaffirmed in Ipeelee in 2012. The court was clear that decision makers must take Aboriginal social history into account when liberty interests, in particular, are at stake.
This goes for corrections as well. It is not just instruction to the courts; this is instruction to the whole criminal justice system and throughout the process.
The factors that are generally accepted as Gladue factors include things like the effects of residential schools; the experience in child welfare or adoption systems; the effects of dislocation and dispossession of people being taken off their land and families being torn apart; community histories of suicide or substance abuse; victimization, particularly for women; physical and sexual trauma; a loss of culture or struggles with spiritual identity; poor educational achievement; poor living conditions; and unfortunately for indigenous young people, involvement with street gangs in urban centres.
Parliaments have tried to address these issues not only by passing criminal law amendments such as the Criminal Code amendments of 1995 but also through legislation such as the Corrections and Conditional Release Act. That act incorporated Aboriginal specific sections in law.
In my former position, in 2013, as Correctional Investigator, we investigated two of those indigenous-specific sections of the CCRA; namely, sections 81 and 84. Section 81 of that act allows for the minister to enter into agreements with Aboriginal communities to transfer care and custody of Aboriginal offenders. Section 84 provides for Aboriginal community involvement in release planning of an offender who is returning to his or her community.
This is what we found in 2013, so this is going back a few years. Only four section 81 agreements — agreements that allow for the transfer of care and custody of Aboriginal offenders to Aboriginal communities — have been concluded with Aboriginal communities since 1992, and only 68 section 81 beds across Canada, which at that time was about 2 per cent of the eligible inmates. There were no section 81 agreements in British Columbia, Ontario, Atlantic Canada or in the North, and there were no new section 81 facilities added since 2001, despite at that point a 40 per cent increase in Aboriginal incarceration.
There were other significant findings. I commend that report to you. It is called Spirit Matters, and it’s on the website of the Office of the Correctional Investigator.
In that report we found interesting things about section 84, which is the section that allows for indigenous community involvement in parole release and supervision. We found that it was underutilized, that it was overly complex and bureaucratic, that it was not well understood either within Correctional Service Canada or in the communities that were supposed to be served by it, and it was unevenly applied. In 2003, of nearly 19,000 Correctional Service Canada employees, just 12 were Aboriginal community development officers, the staff responsible for implementing that section.
The office made a number of recommendations to appoint a deputy commissioner for Aboriginal corrections, to develop a long-term strategy for additional section 81 agreements, to negotiate permanent and realistic at-parity funding levels for section 81 healing lodges, to review the progress of section 84, to expand staff training and to revolve some issues faced by elders.
There has been extremely limited progress on those key recommendations. We are seeing an uptick in section 84 releases, and there have been some changes in training in cultural sensitivity.
The good news is that in one year, between 2016 and 2017, there was a 34 per cent increase in the number of indigenous offenders being supervised under section 84. That is great; that’s progress. But remember that the baseline is pretty low, so a 34 per cent increase meant an increase to about 456 people out of the entire indigenous population.
For section 81, the progress is really non-existent. I will give you one example. The Stan Daniels Healing Centre, which is a section 81 healing lodge, either one of the first or second ever signed under that legislation, has a capacity for 30 beds. It is currently sitting with 17 people in it. It is hard to understand, in spite of the demand, that it is nearly 50 per cent empty.
The pictures are not rosy in the provinces either. I will give you a snapshot of a couple of the provinces quickly. In British Columbia, for example, each year that I have tracked since 2012, the number of Aboriginal men and women sent to custody has increased. Between 2013 to 2016 that number increased by over 1,000. The last count we had was about 5,768 men and women. That is the largest and fastest-growing identifiable sub-population within British Columbia provincial corrections.
For Ontario, indigenous people account for about 2 per cent of that province’s population. Last year they represented 13 per cent of all people sent to provincial custody. One in three indigenous people were admitted to Ontario’s correctional institutions last year, and over half of the indigenous people who were admitted to segregation were flagged with a suicide risk. We are getting to see the increased combination of addiction, mental illness and conflict with the law.
Both of these rates are higher than in the non-indigenous population. Last year, once placed in segregation, indigenous men spent on average two days longer than non-indigenous men placed in segregation. The proportion of individuals entering probation in Ontario who are indigenous has been increasing steadily each and every year for the last 15 years that we counted.
These figures should not surprise any of us. The failings of the criminal justice system have been acknowledged, understood and documented for decades.
The Government of Ontario recently released a document called Journey Together: Ontario’s Commitment to Reconciliation with Indigenous Peoples, which they released subsequent to the findings of the Truth and Reconciliation Commission. In that document, the Government of Ontario said:
Clear links have been established between the overrepresentation of Indigenous people involved in the justice system and Indigenous communities’ experience with residential schools. Indigenous offenders feel a deep alienation behind the bars of correctional institutions just as they (or their parents or grandparents) felt inside the walls of residential schools. These institutions are places where racism is common.
I think I will leave my remarks there in terms of preparing the context for our discussion, and I welcome your questions.
Senator Tannas: Mr. Sapers, thank you for being here. I want to get to your analysis on violence; that is, people in prison for violent crimes versus property crimes, drugs, et cetera, relative in proportionality to non-indigenous people, men versus women and the trend. Is there anything good or bad to highlight in terms of where that is going?
Mr. Sapers: I don’t have a whole host of statistics readily available to answer your question with precision. I can refer you to the Corrections and Conditional Release Statistical Overview because you will find the answers specifically in that document. However, I can tell you that most people are under the illusion that we reserve jail for the worst amongst us, that we reserve federal corrections for the worst of that group, and we reserve segregation for the worst of the worst. That is an illusion.
At the provincial level, probably two thirds on average of every man and woman who will spend tonight in a provincial or territorial jail is there pretrial or awaiting bail, so not sentenced or not guilty. We found that the use of segregation in Ontario was just as high or higher for the remand population, the pretrial, the innocent population if you will, than it was for the sentenced population. We found an over-representation of people with mental health issues being held in segregation.
We know there is an over-representation of people with substance abuse and mental health histories who are of indigenous descent and end up in the most austere forms of custody.
Over 55 per cent of all sentences last year in every court across Canada were for a month or less, and less than 5 per cent were for over two years. That will give you some measure of the seriousness of the offences we are talking about.
Senator Tannas: Could you comment on fetal alcohol syndrome and the trend? Is there any cause for hope, or is it getting worse? In your view, what are the proportions of that?
Mr. Sapers: We don’t have good baseline information, although it is getting better. There are screening vehicles and tests available now that make it easier, quicker, less expensive and less invasive, but the key to all of it is evidence of maternal alcohol consumption. That is often the most difficult. People are now starting to say it is no longer the most relevant piece of information.
There is a movement, if I can put it that way, to look at a whole range of cognitive impairment and functioning impairment and say that we don’t need the diagnosis or label. We can treat “as if.” Treating “as if” means you adjust the way you deal with people who have alcohol spectrum disorder or who are behaving such as. So people who have difficulty following rules, learning from their mistakes, et cetera, there are ways that we can deliver information to them that will be more meaningful and helpful.
Some studies say the range is between 15 and 25 per cent. Well, that is a big margin of error. Again, the absence of a diagnosis is usually the absence of evidence of maternal alcohol consumption.
Yukon has done an excellent prevalence study, and it shows the FASD rate to be much higher than that evidence. The evidence we do have is that it is a problem and it is getting worse, but there is not that much baseline information.
[Translation]
Senator Mégie: I will ask my question in French. You said earlier that Aboriginal healing lodges help indigenous offenders reintegrate into society. Did I understand that correctly?
[English]
Mr. Sapers: The Correctional Service of Canada operates some healing lodges itself and some under contract under the CCRA section that I was referring to.
The benefit of a healing lodge is the spiritual and cultural environment and the peer group that the individuals are associating with. There is evidence of improved correctional outcomes. There is a whole host of correctional outcomes that we could measure.
[Translation]
Senator Mégie: How can you explain the fact that there is a 30-bed capacity which is half full?
[English]
Mr. Sapers: Senator, I can’t explain that. I would love to hear a good explanation. I would be surprised in fact if there is a good explanation for that.
[Translation]
Senator Mégie: I was wondering whether section 81 would be helpful in this regard.
[English]
Mr. Sapers: Yes. When the Office of the Correctional Investigator released their Spirit Matters: Aboriginal People and the Corrections and Conditional Release Act report, it was a special report to Parliament. It’s only the second time ever that a special report from that office was tabled in Parliament because of the significance of the issue. When it was tabled in Parliament on March 7, 2013, this is what I said. I will quote myself.
In failing to fully meet Parliament’s intent, my review concludes that the federal correctional system perpetuates conditions of disadvantage for Aboriginal people in Canada.
I see no evidence that that has changed.
Senator Lovelace Nicholas: I apologize for being late.
The women who are being incarcerated, are they mostly single parents? And do they have jobs? Because some of them can’t afford lawyers. Would that be true in some of the cases?
Mr. Sapers: Senator, the profile of women in custody is heartbreaking in terms of their circumstances if you look at them as a population. The individual stories are heartbreaking, but if you stand back, it’s overwhelming.
Most of the women in custody have experienced sexual and physical trauma, underemployment or unemployment, or addiction of one form or another. Many have had previous psychiatric hospitalization prior to incarceration. Many have been criminalized as a result of their associations with others, and many are single parents and caregivers. Yet knowing all of that, we still have very uneven responses in terms of things like allowing mothers and young children to maintain meaningful contact while mothers are in custody.
There is some good evidence as to why the questions you raise are such important ones.
Senator Lovelace Nicholas: It seems to me that some of this would stem from being “out of sight, out of mind” of corrections, provincial governments and even the federal government. What do you think about that?
Mr. Sapers: Senator, I’m not sure that I understand your reference to being out of sight, out of mind.
Senator Lovelace Nicholas: When many indigenous people go to prison, it seems they’re forgotten either by corrections, the provincial governments or the federal government.
Mr. Sapers: I can speak most recently about my experiences in Ontario, where there is a tremendous level of awareness and a commitment to do things differently, but not a lot of things being done differently. It’s hard to dismiss the work of the men and women who are trying to change and implement change. It’s hard to dismiss the political and organizational commitments to actioning the Truth and Reconciliation Commission. Honest efforts are being made, but clearly we don’t have it scoped out right. If you take a look at the outcomes, they do not demonstrate that we’ve figured out true reconciliation and how to apply that to our justice process in this country.
Senator Enverga: You’re right. The numbers you mentioned are really heartbreaking.
In that regard, I would like to ask you if you have any data about faith with regard to those incarcerated. Do they have religion or anything like that?
Mr. Sapers: Senator, I don’t have data on religious affiliation. Faith continues to play an important part in corrections, and faith-based groups and volunteers are welcome in institutions. We see prison chaplains being a very important part of the prison community to the staff as much as the men and women in custody. In fact, even the federal law I talked about, the CCRA, mentions and recognizes elders and indigenous spirituality on an equal basis, but that’s when things begin to fall away.
Again, I would refer you to Spirit Matters. A section in that report talks about the experience of elders in being able to do their healing work in a way that is supported. Unfortunately, they felt that they were often impeded or marginalized.
I don’t have good data on religious affiliation. I can tell you that faith is important, but I do have some concern about how we embrace indigenous spirituality in corrections.
Senator Enverga: With all the numbers of people incarcerated, what is the return rate?
Mr. Sapers: It varies. Recidivism is one of those slippery terms, and it means different things to different people. We can expect people serving first sentences in a provincial system probably at a higher rate. You may find them court-involved again.
On the other end of the scale, people who successfully complete supervised conditional release periods of day parole and then full parole in the community typically have the highest success rates.
We see lifers — life-sentenced men and women — living in the community peacefully and safely for decades sometimes once they’re paroled after they’ve served the carceral part of their life sentence.
The question about recidivism is a difficult one because you have to have many conversations about what it is you’re talking about. Is it contact with the courts, reincarceration or re-violation? Is it violation of a condition? If I’m out on parole, there may be a condition that says I have a curfew. Am I reincarcerated because I broke curfew or because I committed another crime? You have to have lots of little conversations to answer that question.
Senator Enverga: Yesterday, we were speaking about Aboriginal law. If we adopt some of the Aboriginal law, will that help in the justice system for Aboriginal people?
Mr. Sapers: The easy answer for me is to say that’s outside my area of expertise, and if I was really clever, I’d leave it there. I will say that it wouldn’t hurt. But we need a much more profound rethink rather than just incorporating Aboriginal ways. Elder-assisted hearings and parole decision making is important and helpful, but it’s not enough. It didn’t really boost the release rate, so it has to be more profound than that.
Senator Pate: Mr. Sapers, it is a pleasure to see you in this venue. While you come as an individual, you come with a wealth of experience and knowledge.
I’d like to take us back and talk a bit about one of the areas that you touched on. You mentioned a number of observations you made in the Spirit Matters report, and in particular how few section 81 agreements there were and how few beds there were. The Senate Human Rights Committee is looking at this, and we have heard lots of evidence about the manner in which policy has been limited. If you could, I would like you to please comment a bit on how the policy has limited the law and any observations you have about that.
As well, you mentioned Stan Daniels, but there is also the example of what happened when corrections first opened the Buffalo Sage Wellness Centre. Could you comment on the difficulties of arranging placements there?
Also, could you talk about the many recommendations for correctional oversight? In particular, I think of Louise Arbour’s recommendations around the ability to look at when the mismanagement or the treatment of prisoners results essentially in sentence mismanagement and what remedy should be relevant for prisoners, in particular indigenous prisoners.
If you could start with those, that would be great.
Mr. Sapers: Senator, I should have done more homework, but thank you for those questions.
On the policy question, one example comes to mind that I think crystallizes the discussion. To get into a healing lodge, you need to be designated as minimum security. So if we look at the profile of the federally sentenced population, most men and women are being held at medium security and most indigenous inmates are being held at medium security. By policy, you have created an ineligibility that doesn’t exist in law. The law doesn’t say that. Then we can have a whole discussion about whether the risk assessment tools used to establish those security classifications are without bias and whether they’re culturally appropriate.
So we’ve got a policy that is influenced by another policy that results in the target population becoming ineligible for the resource that has been created.
There are others, but I think that probably crystallizes the issue that you raise.
Buffalo Sage Wellness House, for the benefit of the committee, is the most recently opened healing lodge. It is an extension of the Stan Daniels agreement, which is between Correctional Service Canada and the Native Counselling Services of Alberta. Buffalo Sage is a resource for women. When it first opened, it was very difficult to get women there. It was logistically difficult and difficult from a policy perspective. It was just difficult. There was some discussion at the time saying, “Well, maybe we shouldn’t be spending money on this. We don’t have enough population to support it.”
The good news is that I think many of those issues have been resolved. One of the drivers for resolving those issues is the ongoing crowding of the Edmonton Institution for Women, which is overwhelmingly indigenous. But I can tell you that the last time I looked, of the 16 beds available at Buffalo Sage, 15 of them were filled. So that’s good, if you can get your head around any custody space being filled as being good, but at least that facility is being used for the purpose for which it was designed.
You asked about correctional oversight. In Canada, at the federal level, we have the Office of the Correctional Investigator as a specialized ombudsman. Provinces and territories typically have ombudsman offices as well, where a large part of their “business” comes from corrections in that province or territory.
But we don’t have a parallel compliance function in most of our jurisdictions. For example, the United Kingdom has not only an office of an ombudsman for corrections but also has an office of an inspector for corrections. They serve very different functions. One is complaints-driven; one is compliance-driven. As I understand from Madam Justice Arbour and other commentators, there is the absence of this parallel process and a belief that oversight would be enhanced if such an office existed.
I can tell you that I have recently recommended to the Province of Ontario that they create an inspectorate for corrections.
Senator Pate: I want to clarify something. You mentioned Buffalo Sage. In fact, they had no indigenous women eligible to go when they first opened, is that not correct?
Mr. Sapers: Senator, you may recall better than me, but I believe it was for the first three months.
Senator Pate: An indication of how arbitrary the classification and policy scheme was is that they merely reclassified people in order to move them.
Mr. Sapers: Sure. They recognized the roadblocks they had erected and, by policy, tore them down. That’s capricious and arbitrary; it’s not the way that we’re supposed to be doing things.
Senator Pate: Thank you. I just wanted to be clear. I didn’t want to put words in your mouth, but it was merely the policy that was the roadblock to both the agreements and the reclassifications.
Mr. Sapers: Right, not the individuals.
Senator Boniface: Thank you very much for being here, and for the work that you’ve done over the years.
I am interested in a more international perspective. As we work through this study, obviously the justice system is going to be one of the areas that will be important to the Aboriginal community, but I’m interested whether in Australia, New Zealand, et cetera, there are any other models we can look to that would be something we should inform ourselves about?
Mr. Sapers: Senator, again, I’m going to give you a very unsatisfactory answer. One of the things about colonialism is that it seems to wreak havoc wherever. I have visited New Zealand and Australia. I’ve been to places in Africa where indigenous populations are over-represented in basically colonial justice systems. In New Zealand, it’s at a rate higher than in Canada. The same kind of efforts are going on.
There are pockets of excellence everywhere, including Canada. There are lessons to be learned from all of these experiences and tailoring them. The one thing in common I’ve seen from those pockets of excellence is when the initiatives were informed by indigenous experience and voices.
Senator Doyle: Thank you for being here.
Could you expand on what you mean by the phrase the “lingering artifact of colonialism”? I’m not quite sure what you mean by that and how it factors into the fact that the prison population has expanded to such a great extent among indigenous people.
Mr. Sapers: Senator, thank you for that. I’m going to only discuss two facets of what I mean by that, and I hope they’re illustrative of the larger topic.
The first facet is that there is something at work that is intergenerational: the multiple generations of families affected by residential schools, the multiple generations of families that have been affected by the 60s Scoop, and the multiple generations of families that have been affected by the deprivations that came with dislocation and relocation and the taking away of language and culture. We cannot underestimate the impacts of those — families disintegrating as a result of state policy.
So there are lingering effects certainly in terms of that intergenerational trauma, but there is another facet, which is what is going on today: We continue to have policies that don’t make a lot of sense. We continue to have policies that appear, if not in intent then through outcome, to be race-based — the discussion that Senator Pate and I were just having about the policy of how men and women were classified and whether those classification tools continue to be biased or discriminatory.
I have had discussions with people who will say, “Indigenous Canadians should just get over it; that’s all historical,” but it’s not. I have had discussions with people who say, “Well, we all have human rights, and no one’s human rights should be set upon anyone else’s,” but there is really only one population in this country that has been colonized, so it’s different. These policies tend to land differently.
That, I believe, is the definition of systemic racism; namely, where an otherwise benign policy is implemented, and its implementation, without intent, results in a discriminatory outcome. That continues today.
Senator Doyle: You answered my other question about systemic racism. What do you do about that? What kind of program can you institute to address systemic racism? Is it not a matter of education among not only the indigenous population but non-indigenous population as well?It all seems so abstract. How do you get at it, pinpoint it and do something about it?
Mr. Sapers: I don’t think there is a single path to reconciliation; not a single path to understanding; certainly not a single path to eliminating racism or discrimination. However, empowering, engaging and building capacity in and with indigenous communities is a good place to start. Dealing with some of the well-identified issues that have flowed from the Indian Act and reservations, dealing with some of those issues documented not only in the Truth and Reconciliation Commission, but in many other observations and studies before, is a starting place.
In corrections, even implementing the law that we have, a more fulsome and robust implementation of sections 81 and 84 of the CCRA ,would make a difference.
Bureaucratically, organizationally, there’s lots we can do. There is still no dedicated senior leader that sits at the management table of Correctional Service Canada whose sole responsibility is to implement, manage and report on the Strategic Plan for Aboriginal Corrections. Why is that?
So there are things we can do. Some of them we can do immediately. Some will take longer, some might require legislation and many will require federal-provincial-territorial initiatives. But I think there are lots of things that would be concrete and would result in positive change.
Senator Doyle: Are we on the path to doing that? Have we made a good start?
Mr. Sapers: I think this conversation, and conversations like this in the immediate post-Truth and Reconciliation Commission world, are a start.
Senator Christmas: Thank you, Mr. Sapers. I was quite struck by your comment that section 81 agreements under the Corrections and Conditional Release Act. If my math is correct, that is one in every five years since the CCRA has existed.Can you offer your thoughts on why there have been so few section 81 agreements in Canada?
Mr. Sapers: No new section 81 facility has been added since 2001, although Buffalo Sage opened since 2001, but it was an amendment to the Stan Daniels contract. I could be more generous and say that we had one, and the only one for women since 2001.
Again, there are lots of reasons why. One of the reasons, which is not well understood, is that there is a hesitation amongst many indigenous communities and organizations to enter into a contract under section 81. That is because of the experience of the contractors who operate the existing lodges.
I have had meetings with indigenous leadership across the country where individuals have told me that it would be subsidizing the federal Crown if they were to enter into these agreements.
When the Office of the Correctional Investigator did the Spirit Matters investigation, they found that Correctional Service Canada funds its own healing lodges much better than it funds the healing lodges that are under contract with indigenous communities. So that impression that the indigenous leadership shared with me that they would be subsidizing the Crown seemed to be borne out.
Sometimes what we hear is that there is no capacity in those communities, that they are not ready yet. I would say there are more powerful influences that would help explain why there hasn’t been an expansion.
Senator Christmas: I have to admit that I was a First Nation leader before coming to the Senate and served 18 years on the council. During my time, we did have Correctional Service Canada approach my community about a section 81 agreement. That agreement really didn’t materialize. I have seen other offenders who have been released back to our community, have served their full term and have successfully reintegrated into our community.
I have often asked myself why section 81 agreements didn’t work in our community whereas those who didn’t use section 81 agreements seemed to have worked. Are section 81 and section 84 colonial prescriptions for an indigenous problem?
Mr. Sapers: Can I turn that into two questions?
Senator Christmas: Certainly.
Mr. Sapers: The first question I want to turn it into is: What difference would it make if people can come back after being in a mainstream correctional facility and come back to a community? Hopefully that is the whole point of corrections.
As much as I have been a critic of Correctional Service Canada and other correctional systems, I have to say that corrections can and does work; that people do miraculous things inside those facilities every day, both the inmates and staff; and there has been improvement. There are better programs that are offered. There is more engagement with elders, if they are available. There is more indigenous spirituality. There are cultural centres and grounds. It is not uncommon now to go into a facility and smell sweetgrass; there are smudges. It is not all negative. So those individuals you spoke of gained the benefit they were supposed to gain.
The other question, though, is the issue of whether or not it’s colonial prescription. Yes, it is. We have a handful of sections of an act of Parliament specifically tailored to an identifiable community. That is colonialism. But the rule of law also defines our country. Where do we go with that? I think it is a matter of ensuring that the law recognizes indigenous culture and indigenous law and indigenous process as much as it can.
Behind section 81 and section 84 is the recognition that within this colonial structure, we can turn over authority and jurisdiction and those communities can begin to apply their own ways. But it is with permission of the Crown.
Senator Pate: I have a supplementary to that. Thank you to Senator Christmas for asking that question because the crux of the issue with sections 81 and 84, for many who have examined it, is that the legislative intent was clearly combined with section 80 of the Corrections and Conditional Release Act and was to provide an opportunity for indigenous communities to define what section 81 and 84 agreements should look like, instead of Correctional Service Canada to do this colonial overlay of the policies they developed.
Please correct me if I have misunderstood, but I understand that corrections has told indigenous communities that the types of initiatives they have wanted to do will not fit policies and therefore no funding will be made available. To my knowledge that has never been challenged. When I say “challenged,” I mean a legal challenge even though the legislative intent was something very different. It was rooted in the notion of self-governance, with indigenous communities reclaiming individuals who may have been sentenced as well as individuals who may be released, and for them to decide for themselves what they should do in their communities and how they should spend those resources. That was my understanding. If I have misunderstood that, I would love you to correct me.
Mr. Sapers: I don’t disagree with that analysis, but we have to extend the analysis a bit.
What I mean by that is this. The Correctional Service Canada operates within the federal bureaucracy, the federal framework. We have created all kinds of accountability measures and reporting requirements and constraints on innovation. As much as we say we are empowering the public service to do this and that, that we recognize and reward risk and innovation, we actually don’t.
I will say this about Correctional Service Canada: It’s not simply that agency which is hesitant to take what they would think would be risk in terms of accountability for the public expenditures that will be involved.
As I said, I don’t disagree with your analysis, but we need to expand it. If we want to improve on the discussion that we are having and that your colleague was asking about, then we have to understand how that complex suite of policies sometimes gets in our way of doing what needs to be done.
Senator Lovelace Nicholas: Comparing indigenous and non-indigenous rehabilitation programs, which has the most programs after incarceration?
Mr. Sapers: Senator, thank you for that. I don’t have a good answer that is based on statistics right now.
I can tell you that the one hopeful statistic I have recently seen is that there are more indigenous men entering and completing correctional programs in federal penitentiaries than in previous years. What we don’t know is what the quality of that experience has been, because there has been a change in how Correctional Service Canada delivers its programs.
I would love to have a more detailed answer to that question myself. It would be great if you would ask the Commissioner of Corrections about that because I think it would be very instructive — not just in terms of the indigenous men and women in programs but the overall program capacity of Correctional Service Canada as it stands today.
Senator Enverga: Would it help our indigenous population if we had a separate correctional service where indigenous leaders could manage their own people?
Mr. Sapers: Senator, that is part of the thinking behind section 81, that we would transfer authority, responsibility, custody and care to indigenous communities.
What is interesting about section 81 is that we don’t even have to think of it in terms of large-scale brick and mortar facilities. Section 81 could also be on a small scale in a small community with a residence.
I think the question you ask is what Parliament considered back when the CCRA was being debated.
Senator Enverga: Would you suggest that?
Mr. Sapers: Yes. I think the concerns that the Office of the Correctional Investigator expressed in 2013 about the lack of full implementation of those sections of the CCRA endure, and I think it is time that they were addressed.
Senator Enverga: That would be good.
Senator Tannas: Howard, you have such a unique perspective. We are so glad that you took the time to come here.
I will ask what I hope is a fun question. You have sat on our side of the table as a legislator and politician and you have had a ringside seat to the tragedy. Perhaps you could make your mind imagine a time when incarcerated indigenous peoples equals the same proportion as all non-indigenous people, that there is no overrepresentation 20, 30 years in the future — maybe sooner. You arrive there with all your perspective and see that result, and someone says, “What happened to make that change?” What would you say would be the top two or three changes that happened to put people on the right path instead of on the wrong path?
Mr. Sapers: Well, senator, you teased me when you said it would be fun.
Two of the most profound issues that we have to deal with if we want to make progress in corrections is we need to deal with mental health and addiction in our communities and poverty in our communities. Along with that is safe housing, vocational preparation and access to educational opportunities, but deal with poverty and mental health and then you will see decarceration. And that will affect all communities. I think seriously dealing with poverty will have a greater effect on the lives of indigenous men and women.
The Chair: Thank you very much on behalf of the committee, Mr. Sapers, for appearing here tonight. We will consider your comments carefully as we proceed with our study.
Thank you, senators, for all your excellent questions.
On our second panel today we have the honour of hearing from Scott Serson, a former deputy minister of what at the time was called Aboriginal Affairs and Northern Development Canada. Mr. Serson appeared before the committee a few years back when we were looking at post-secondary education, and we are happy to have him here again this evening to share with us his many years of experience and wisdom.
You have the floor, Mr. Serson, for a short presentation, after which the senators will ask you questions.
Scott Serson, former Deputy Minister, Aboriginal Affairs and Northern Development Canada, as an individual: Thank you, Madam Chair. I want to thank the committee for inviting me to appear. Perhaps you have already done this, but I would like to acknowledge that we are meeting tonight on unceded, unsurrendered Algonquin territory.
I understand that the committee is studying the new relationship between Canada and First Nations, Inuit and Metis peoples. As I said to the chair, I do not have a lot of data with me. I do continue to work in this area, so I thought I would talk about some of my more immediate concerns with where we are in the relationship.
I currently volunteer with two organizations: the Institute on Governance and a small organization called Canadians for a New Partnership. I am here as an individual. I am not speaking for those organizations, but I wanted to say that the two organizations are partnering on a series of dialogues on the characteristics of a nation-to-nation relationship. Of course, we are attempting to ensure, where we can, that it includes a government-to-government and an Inuit-Crown relationship as well.
On our last dialogue on wealth creation in Halifax, some concern was expressed that the window for successfully passing legislation in the life of this government is closing rapidly. I share that concern as someone who has been working in this area for quite some time. My perspective is that the government has made many commitments with respect to a new relationship, but it is important that at least some of those be reflected in legislation during this mandate so they can’t be undone without significant public debate.
Since both the Royal Commission on Aboriginal peoples and the Truth and Reconciliation Commission called for a new Royal Proclamation, I had hoped to see one reflected in legislation as an anchor for further changes in the relationship between indigenous and non-indigenous peoples. I continue to hope we will see legislation that will establish the national council for reconciliation, which was Call to Action No. 53 of the Truth and Reconciliation Commission.
One of the key roles the commission saw for this council would be “to ensure that government accountability for reconciling the relationship between Aboriginal peoples and the Crown is maintained in the coming years.” That is a quote from the TRC.
Finally, short of legislation, I would like to see this government establish with representatives of the three indigenous peoples three plans for restructuring the relationship. Here, I have in mind variations on the seven-step plan proposed by the Royal Commission on Aboriginal Peoples. Publicly available plans would allow those members of the Canadian public like myself, who care deeply about these relationships, to hold the federal government politically accountable for progress in implementing those plans.
A second area that this government may need to give greater thought to is the challenge related to working in partnership with indigenous peoples.
RCAP, the Royal Commission on Aboriginal Peoples, called on the government and indigenous peoples to work in partnership. This government certainly uses the term frequently in its statements, but I know from experience in trying to implement this idea that it does present interesting challenges for public servants, particularly in the areas of openness and transparency. I would like to see more work done in this area.
Another area of the relationship with First Nations, the funding relationship, is a major thread in my career. As I discussed the last time I appeared before this committee, as a deputy minister in 1996-97, I implemented what was supposed to be a temporary cap on the growth of federal transfers to First Nations, the purpose of which was to defeat the deficit of the 1990s. But in 2003, when that deficit was eliminated, that punishing cap was allowed to remain in place until the 2016 Budget. That has weighed very heavily on me.
This government has lifted the cap, but there is still urgent work to be done. That work includes identifying and addressing the gaps created by 20 years of underfunding, plus addressing concerns such as those raised by the Auditor General’s June 2011 status report on programs for First Nations on reserves. There it states:
In our view, many of the problems facing First Nations go deeper than the existing programs’ lack of efficiency and effectiveness. We believe that structural impediments severely limit the delivery of public services to First Nations communities and hinder improvements in living conditions on reserves. We have identified four such impediments:
lack of clarity about service levels,
lack of a legislative base,
lack of an appropriate funding mechanism, and
lack of organizations to support local service delivery.
Here, at least, I am aware of bilateral work involving the Assembly of First Nations and the federal government that is being done on these issues. I think that part of that work has to lead to the production of publicly available data that allows interested Canadians an opportunity to judge whether First Nations are being fairly funded.
Finally, at whatever pace Canada and First Nations, Inuit and Metis peoples move toward a new relationship, I want to underscore the importance that I attach to public education along the way. Both the royal commission and the Truth and Reconciliation Commission underscored the importance of public education, and I think most of us involved in a multitude of processes stretching back 36, 37 years now believe it is of fundamental importance, even at this point. Thank you.
The Chair: Thank you, Mr. Serson.
We will now have questions from the senators, starting with Senator Tannas.
Senator Tannas: When you were here last time, you gave a very candid view of how that 2 per cent cap worked out and expressed your regret for being part of that. That stuck with me, and I think it stuck with others who were there. Thank you for that. That was, I’m sure, difficult to talk about.
I’ve got a question that I’m wondering if you can help with. When you were deputy minister in the early to mid-1990s, what percentage of your total budget comprised transfers to First Nations governments?
Mr. Serson: The vast majority, senator. I forget what the operating costs of the department were in those days, but it couldn’t have been more than maybe 10 per cent at the most. I would hope a lot less than that.
Senator Tannas: So about 90 per cent of your budget was transferred directly, just transferred.
Mr. Serson: Yes.
Senator Tannas: How come it takes 4,200 or 4,500 people to transfer 90 per cent of the money? How come? This is a question I’ve had in my mind. I just don’t understand. That’s question number one.
Question number two: As you said, the window is closing on this government and this moment in time, and they have decided to reshuffle and reorganize this crowd of 4,500 people. I don’t want to be partisan and I’m not trying to be partisan, but it just strikes me as a big waste of time and effort at a moment when, as we used to say in business, the pieces are hot. Everything is there to make something happen, and we’re going to go back and ask our government guys to reorganize themselves. How long will that take? Does that not doom, in your view, or at least severely hamper the potential for progress to be made while everybody is off changing offices and writing new job descriptions?
Mr. Serson: On your first question, the department is still administering the Indian Act, and it is transferring funds to First Nations through grants and contributions. If you’re deputy minister, you appear before Public Accounts, and you explain if there’s the slightest problem with the delivery of programs or services. That is a large part of the role that the department is performing.
When we talk about that fiscal relationship, we know that federal transfers to provinces and territories have evolved towards block funds. I think that’s a direction that most people have in mind for the transfers to First Nations, but to get there, in fairness to First Nations, we have to have a better base and better knowledge of that base.
The last time I appeared before you, one of my frustrations was the lack of transparency, and that’s what I’m appealing for today — transparency about that funding relationship. What is being spent? What is it purchasing? It’s very difficult to find out, and most of my presentation, the last time I was here, was because I was able to point to a presentation that Cindy Blackstock accessed through access to information that clearly pointed to the department presenting the numbers.
Now, from the look of the presentation, it looked like they were presenting those numbers to cabinet or someone, but it was a honest portrayal of the reality. I won’t go into it unless somebody wants to revisit that situation, but it was a pretty disappointing presentation on the state of play. I could come back to that.
On the question of restructuring, I have expressed concern about that decision. In the first instance, I thought it was unfair to characterize it as implementing an RCAP recommendation, at least putting it baldly like that, because, as I said, RCAP did present a plan for restructuring. It was a seven-point plan, and as they commented, I think, about the fifth stage in the plan, they did say, “You may want to follow our recommendations on restructuring.” But their point, even if you look into the rationale, which I took the time to do when I saw that decision, was that they wanted, through Parliament, pieces of legislation that clearly indicated the direction of that restructuring so that, when it took place, public servants understood what their new role was going to be. In a broad sense, that’s my concern about this decision being taken at this stage.
I worked with these people at the department, so I’m not going to badmouth them. They are good people, and they want to see the situation for First Nations change. But there is no doubt that this restructuring and uncertainty creates stress and preoccupation that is going to divert attention from the primary goal right now, which is restructuring this relationship, closing the socio-economic gap between indigenous Canadians and the rest of Canadians.
Senator Tannas: Thank you, sir.
Senator Lovelace Nicholas: You must be aware of third-party management.
Mr. Serson: Barely.
Senator Lovelace Nicholas: Can the First Nations communities refuse their coming into their communities and infringing upon their management? The pay that the third-party management gets comes from First Nations’ funding. So that’s about $60,000 a month.
Mr. Serson: I’m afraid, senator, those are details that I’m no longer familiar with.
Senator Lovelace Nicholas: But do they have the right to refuse these people coming in? That’s what happened in Attawapiskat.
Mr. Serson: Yes, I’m aware of that. I am not sure about a right of refusal. I think any First Nation that does not move towards third-party management when requested to do so would face some difficulties, but again, I’m too far away from the actual job to remember exactly what they would face.
Senator Lovelace Nicholas: I think my figures were higher, but I just made it lower.
Going forward, to ensure that funding keeps pace with population growth, what funding approach could be made?
Mr. Serson: Funding for First Nations people should have an escalator that includes both inflation and population growth, but I think the review that now has to take place must be much more profound than that. As I said earlier, 20 years of funding at 2 per cent when we know inflation was running at 2 per cent and population growth was 2 per cent has got to have left very significant gaps, so those gaps need to be identified and compensated for.
There are First Nations requirements that we continue to identify as we move forward. There has been a continuing concern about capacity and capacity development. The Auditor General reflected the need for support to institutions and the adequate funding of support to institutions. All of these issues have to come to the table in a much more transparent way where we’re not having these back-and-forth arguments about whether the funding is fair, but the public can actually examine the data and make those judgments themselves.
Senator Lovelace Nicholas: What do you mean by “the public”?
Mr. Serson: I mean interested Canadians — Canadians who ask themselves why there is such a significant socio-economic gap in this area.
Senator Lovelace Nicholas: Thank you.
The Chair: Before we move on to Senator Pate, I’m going to ask a supplementary to a question posed by Senator Lovelace Nicholas.
What we talk about funding and we’re looking to the future of a new nation-to-nation relationship, right now it seems the funding is controlled by forces outside the control of either the First Nations, Metis or Inuit peoples themselves. If you were to recommend a change in how the funding levels should be decided, what do you envision would constitute a fairer system?
Mr. Serson: Again, I’m no expert in this area, but looking back, and in the context we’re in today, I wonder if we don’t, first of all, need that statistical agency that was created and then dissolved later. I do think we need some independent capacity or perhaps more capacity at Statistics Canada to look at data questions in the area of indigenous peoples.
But beyond that, as the funding relationship evolves, I think a block is the goal. If we’re satisfied that the base was adequate, that indigenous nations had reached the point of development, then a block much like the federal government transfers to the provinces and territories would allow indigenous governments to determine their own priorities. That’s absolutely essential.
Senator Pate: Thank you, Mr. Serson.
On September 11 in the Hill Times you were quoted as making comments on the departmental split that my colleague asked you about. One of the things you were quoted as talking about was the need for a new proclamation and the encouragement that that might be a necessary step for future nation-to-nation relations. Could you please explain how you see that as useful and beneficial in terms of nation-to-nation relationships, as well as how you would see moving in that direction and what operational and procedural or policies changes would need to happen?
Mr. Serson: It’s not my idea. It’s a royal commission idea, and the Truth and Reconciliation Commission has raised the idea. Their idea was somewhat similar to what the Minister of Justice has actually done, which is produce 10 principles.
The challenge is that it’s not clear that those principles were developed with the input of indigenous peoples. In fact, I think the Minister of Justice has implied that they are principles to guide public servants in the relationship. But I took the point of a new Royal Proclamation being that indigenous leadership would sit down with government and come up with a set of principles to guide the relationship, not dissimilar to maybe problems with those 10 principles, but 10 principles like that which would provide a clear basis for the new relationship. My comments to the reporter were simply going back to that.
Let me put it to you this way. I also was deputy minister when we received the RCAP report. I won’t go into a lot of details, but we did a response, Gathering Strength. In hindsight perhaps I was naive. A good deal of public interest in the relationship with indigenous peoples was generated by the work on and the release of the RCAP report, but it evaporated very quickly.
I say to myself, rather than focusing on Gathering Strength, which was largely focused on the socio-economic challenges because they were seen as more urgent and the restructuring challenges were more challenging and we decided to work on those second, if I had suggested that the minister and cabinet take something like the seven-step restructuring plan and put that out in public, would that have helped indigenous leaders? Would that have helped the Canadian public to measure whether progress was being made on that restructuring plan?
Fundamentally, that’s what I had in mind — something that gives interested and caring Canadians an opportunity to assist indigenous leadership in moving this relationship forward.
Senator Enverga: Thank you for your presentation, Mr. Serson.
Being the former deputy minister, you probably have an idea on the end result you want to happen. Is self-sufficiency or self-governance part of your endeavours, part of the things you want to happen?
Mr. Serson: That’s a trick question, senator, because I may have my personal views and I can put them on the table, but what is important is that whatever happens is as a result of a dialogue, a negotiation between indigenous peoples and Canada.
I can’t envision that outcome. I may have ideas. I think RCAP gave us a pretty good model of where we need to go.
Senator Enverga: Right now we’re studying the new relationship between Canada and First Nations, Inuit and Metis peoples. Is it a good goal for any negotiation or any future policy that Canada will try to help First Nations to be self-sufficient, self-governing? Is that really a fair goal for everybody?
Mr. Serson: We repatriated the Constitution with section 35 in it. We had a series of constitutional conferences under section 37 of the Constitution from 1984 to 1985. We were not successful in defining the rights of indigenous peoples, but the one clear thing that came out of those conferences was that indigenous peoples wanted the recognition of their inherent right to self-government.
That’s at the heart of where we have to get to. How do we make that a reality in our federation? The Royal Commission on Aboriginal Peoples in particular has given us a lot of very intelligent advice to work with.
Publicly, people will say that not a lot has happened based on the Royal Commission on Aboriginal Peoples, but anyone who works in the area who has an issue, an area that they want to explore, the first thing they turn back to is the Report of the Royal Commission on Aboriginal Peoples, in my experience anyway.
Senator Enverga: So do you think there is a will for the Aboriginal communities to self-govern?
Mr. Serson: Is there a will in indigenous communities?
Senator Enverga: Yes.
Mr. Serson: I think so, yes, absolutely.
Senator Omidvar: Thank you, Mr. Serson for being here. I’m not a regular member of this committee, so I do not have the depth of wisdom that my colleagues have. I’m one of those concerned Canadians though, naturally. I hope you were in the room earlier when we had a really fascinating conversation about colonialism and the long-lasting negative impacts of colonialism on systemic behaviours.
I’m struggling with trying to move my head from here to where we are right now in this time and space to something far more desirable. We’re talking about restructuring a relationship or a new relationship with Canada’s First Nations peoples.
I continue to hear you talk about block grants, escalator clause, self-determination, but isn’t there still that smell of colonialism around those who give and those who take? I’m wondering if you can be more risk-taking and edgier and describe to us possibly a completely new transformational approach.
Mr. Serson: Well, we live in Canada, and some would argue that one of our great blessings is that we learned from the original peoples of this land the importance of sharing, and that gets reflected in the equalization transfer program and the social and health transfer program. To my mind, transfers are a fact of life.
But you make a fair point. I do believe there is work to be done undoing some of the impacts of colonialism. Some of those significant issues the Royal Commission on Aboriginal Peoples had a significant message or recommendation on the importance of re-establishing land bases for indigenous communities. As I recall, that went beyond land claims. It certainly encompassed fair renewal of the treaties and updating of the treaties, but it probably went even beyond that. It was all about giving indigenous nations a reasonable economic base.
If that is what you’re trying to get at, resource revenue sharing, absolutely.
Senator Omidvar: I’m trying to get at something a little different, maybe a share in the tax base or taxing authority.
We’re not the only country that is challenged in this way. There are others as well. Is there something to learn from New Zealand, Australia, the United States?
Mr. Serson: If there is something significant, I didn’t find it. I continue in my work today to look for lessons, but we’re a unique country and I think we have to work through these things in our own way.
The Chair: Our brilliant analysts have asked me to ask you a question.
Mr. Serson: Could I raise one other point?
The Chair: Sure.
Mr. Serson: As somebody who co-chaired the indigenous peoples working group in the Charlottetown round, I want to say to senators that when you think about a new relationship, you should look at the indigenous provisions in the Charlottetown Accord, because that was one occasion when the Prime Minister, premiers, territorial leaders and indigenous leaders came to an agreement on a restructuring of the relationship.
So it is there, and I can say as someone who has heard him speak to it very eloquently, there are national First Nations leaders like Ovide Mercredi who still believe that was a pretty reasonable model on how to restructure the relationship. I just wanted to put that out there.
The Chair: Thank you for that information.
Our analysts have passed me a question. It follows somewhat with what you just said about the Charlottetown Accord. I think it was in 2005 that the Kelowna Accord was negotiated in consultation with the major Aboriginal groups: the Assembly of First Nations, Métis Nation of Canada, ITK, Congress of Aboriginal Peoples, Native Women’s Association of Canada. It was entering into a new fiscal relationship. They were talking about a separate budget, and there were five different areas, such as health, education and so on. Are there any lessons to be learned from the process taken back then?
Mr. Serson: I was involved in that process. I was working for National Chief Phil Fontaine during that process. There were a couple of important parts to that process, from what I could see working with First Nations colleagues.
One, the federal government made a significant effort to ensure that the Assembly of First Nations could hire its own researchers to do its own research and staff work. That was very important to the agreement.
Second, resources and time were provided to allow for the maintenance of a consensus in First Nations country. When I talk about this, I always cite the example — and I was reminded not too long ago — of one conference call where we were talking about one subject area, and there were 132 people, communities, on that conference call. That was the kind of effort that was made to maintain a consensus among First Nations participants.
I don’t want to disagree with your researchers, senator, but from my perspective, the Kelowna Accord was about the restructuring of programming and program policy. A lot of that work was done in partnership, and in that sense it was a success. The parties to the agreement were satisfied with the results and the definitions of services, et cetera.
However, I have to say that there was no negotiation on the financing. When the federal government announced that it was investing $5 billion to support the implementation of the Kelowna Accord, to my memory we had not had the kind of dialogue that would allow us — and I am talking now as a First Nations colleague — to determine whether that was an adequate amount, a generous amount or an inadequate amount. That was the problem with the Charlottetown Accord.
Now, in a period of a 2 per cent cap, no one will critique that amount of money because the needs are out there in First Nations communities. However, it was an area that I pointed out — because I am a believer in working in partnership — where the partnership broke down.
The Chair: For clarification, it was I who used the word “negotiation,” not our analysts. I was the one who mischaracterized it.
As you know, the committee is looking at what a new nation-to-nation relationship could look like. I will ask you a Senator Tannas question. If you could imagine what it could look like in 25 or 50 years, what would INAC version 2 look like? What would the role of INAC be? Clearly, the role of INAC has to change. What sorts of changes would you envision would happen if we had this nation-to-nation relationship? Would there be an INAC?
Mr. Serson: If we reached the point where we had 50 or 60 nations that the Royal Commission on Aboriginal Peoples talked about, then I think back to a period that I lived through and worked in, when federal-provincial relations were much more active than they may be today. There we had a small secretariat associated with the Privy Council Office called the Federal-Provincial Relations Office. When the relationship reaches maturity, when jurisdictions are clear, when funding arrangements are clear and legislated and they work through the input of statistics and data, that is the kind of mechanism that I see at the federal government level dealing with the issues that pop up in any relationship.
The Chair: Thank you.
Senator Christmas: Mr. Serson, I appreciate your comments about the Charlottetown Accord and the Kelowna Accord. I think it is important for us, as a committee, to look at those two accords.
In your vision of a future Canada, what role do you think the UN Declaration on the Rights of Indigenous Peoples should play?
Mr. Serson: I would like to see those discussions taking place, senator. My thought is that if the discussions begin on the implementation of the UN declaration, then perhaps they would find those provisions in a domestic sense in a new Royal Proclamation or a legislated document like that.
Senator Christmas: One of the things that really stands out in the declaration is the issue of reconciliation of lands and resources to indigenous people and the whole notion of free, prior and informed consent when it comes to those lands and resources.
I am trying to imagine a Canada that would respect UNDRIP and FPIC, because I see those provisions as basically anti-colonial, that they are truly on an equal basis.
You have worked for both the Government of Canada and the Assembly of First Nations. Knowing the processes that work in both and given your experience, what steps need to be taken in 2017 between now until the point where UNDRIP and FPIC become a reality? What fundamental changes have to take place in our federation to allow that to happen?
Mr. Serson: I’m not being cautious here, senator, but I do have limits to my expertise. The Minister of Justice says that she wants to review domestic laws and policy. From my experience, that discussion needs to take place within the Government of Canada, but there also needs to be an active dialogue or negotiation with indigenous leadership at the same time.
The thing from my experience that I would insist upon is that there be a strong political/policy input into that discussion.
I will say this — and I am not sure that I have ever said this before — with respect to the inherent right to self-government. I worked the 1985 and 1987 constitutional conferences, and I was disappointed that we didn’t get a more positive outcome. I continued to work and stimulate work where I could, in the jobs that I had, on this inherent right. But it wasn’t until Mr. Clarkwas appointed as Minister of Constitutional Affairs that he called me and said, “Pack your bags,” the first day he was appointed.
I am going to get emotional here. We flew to Iqaluit, Yellowknife, Whitehorse and back down into Edmonton and Calgary. In each one of those places we met with elders first before we met with anyone else. In each one of those places the elders said to him, “What is important to us is our inherent right to self-government.”
We came back and a week or two passed. Mr. Clark came to me and he said, “Scott, this inherent right to self-government, is important. We have to move on this.” All of a sudden, not all but a lot of the obstacles that I had encountered with the Minister of Justice were replaced with constructive efforts to think about how we can agree to an inherent right to self-government.
The same kinds of challenges are there, I am sure, with free, prior and informed consent and some of these other ideas, but if we can approach this from a policy point of view in terms of how we work together and not just from a legalistic these-are-the-dangers point of view, then I am sure we can reach some agreement.
Senator Christmas: Thank you, Mr. Serson. I can assure you, and I am sure you are aware, that the dream of inherent self-government still resides under articles 2 and 3 as the right for self-determination. So the dream still lives, and I’m optimistic.
Mr. Serson: We will get there.
Senator Christmas: We will get there. I agree with you.
The Chair: Thank you.
We have come to the end of our questions and on a good note: the dream is still alive. I am sure that you will continue to have input into ensuring that dream becomes reality. On behalf of all the senators, I want to thank you, Mr. Serson, for agreeing to appear, once again, before the committee.
(The committee adjourned.)