THE STANDING SENATE COMMITTEE ON
OTTAWA, Tuesday, January 31, 2017
The Standing Senate Committee on Aboriginal Peoples met this day
at 9 a.m. to study the new relationship between Canada and First Nations, Inuit
and Métis peoples.
Senator Lillian Eva Dyck (Chair) in the chair.
The Chair: Good morning and bonjour. 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 listening via the web.
I would like to acknowledge for the sake of reconciliation that
we are meeting on the traditional lands of the Algonquin peoples. My name is
Lillian Dyck from Saskatchewan, and I have the privilege of chairing the
Standing Senate Committee on Aboriginal Peoples.
I would like to point out that because of the motion passed in
the Senate in December, we are welcoming several new members to our committee
this morning. I would now invite my fellow senators to introduce themselves,
starting on my right with the deputy chair.
Senator Patterson: Dennis Patterson from Nunavut. Good
Senator Raine: Good morning. I'm Senator Nancy Greene
Raine from British Columbia.
Senator Enverga: I'm Tobias Enverga from Ontario.
Senator Beyak: Senator Lynn Beyak from Ontario. Welcome.
Senator Oh: Senator Victor Oh from Ontario.
Senator Tannas: Scott Tannas from Alberta.
Senator Boniface: Gwen Boniface from Ontario.
Senator Pate: Kim Pate, Ontario.
Senator Watt: Charlie Watt from Nunavik.
Senator Mégie: Marie-Françoise Mégie from Quebec.
The Chair: I would like to welcome our new members from
the independent group: Senator Mégie, Senator Boniface and Senator Pate. Senator
McPhedran will join us in a few minutes.
Today we begin our new and exciting study on what a new
relationship between the government and First Nations, Inuit and Metis peoples
in Canada could look like. We will begin our study with a few meetings looking
at the history of what has been studied and discussed on this topic.
Today I have the pleasure of welcoming to our committee Professor
Jim Miller, Professor Emeritus of History, University of Saskatchewan, who is a
well-known authority on many aspects of indigenous history in Canada. Professor
Miller, you have the floor for opening remarks, and then we will open up the
floor for questions from the senators. If you would begin please, Professor
J.R. (Jim) Miller, Professor Emeritus of History, University
of Saskatchewan, as an individual: Thank you, Senator Dyck. Good morning,
senators. Thank you for the invitation to come and discuss with you an important
aspect of our country's history.
One of the prominent themes of the Truth and Reconciliation
Commission's work was the importance of history. Canadians’ “lack of historical
knowledge” has serious consequences for First Nations, Inuit and Metis peoples
and for Canada as a whole. The commission continued, stating that “history plays
an important role in reconciliation. To build for the future, Canadians must
look to and learn from the past.”
In fact, the idea that a proper understanding of history is a key
to solving the problems of the present and building a better future is prominent
in all three reports that the TRC produced between 2012 and 2015.
Many people believe that Canada's record, like that of its
American neighbour, is one of unremitting conflict from first contact until
recent times, but if Canadians consult the history of relations between
indigenous and immigrant peoples, what do they find? The pattern of relations
between Native and newcomer in Canada has been quite different from that of the
United States. That difference, in fact, holds clues about how to work together
productively in the future. In all regions of Canada — and I'm going to
emphasize Eastern Canada because of limitations of time — first contacts and
interactions between indigenous peoples and European newcomers were harmonious
This positive picture is not the result of any inherent moral
superiority of the peoples who colonized Canada compared to the founders of the
United States. Rather, the reason for positive relations in early Canadian
history is economic. Unlike the Thirteen Colonies to the south, where
agriculture was a major part of the economy, in early New France, the local
economy was built on commerce and furs. Indeed, this was the economic reality in
every region of Canada after contact between Europeans and Indians.
What was distinctive about relations within the trade for furs
was that economic forces compelled the different peoples in the exchange to
cooperate. The reason was straightforward. Indigenous people had the skills —
things such as knowledge of the lands, transportation routes, food resources and
the animals — that Europeans needed to pursue the trade.
Perhaps the clearest, most graphic example of what I mean is the
trade in beaver fur, which dominated the 17th century. The favoured, prime pelt
was what was known as “castor gras d'hiver” — literally translated, “greasy
winter beaver.” What that referred to was that the prime fur was a beaver pelt
that had been worn as part of a garment with the fur against the body for the
winter season, during which abrasion, smoke and oils from the body had the
effect of stripping off coarse outer guard hairs, leaving only the fine downy
filament that furriers wanted. That was a clear example of how the First Nations
were absolutely essential, not just to locate, to take, to skin, but in this
case to process the fur for trade with the Europeans.
Indigenous peoples were more efficient procurers and processors
of furs than the newcomers could ever hope to be. For their part, Europeans were
few in number, largely ignorant about how to survive in the North American
wilderness, and unskilled in capturing and removing hides from beavers and other
animals. The dominance of commerce — in Eastern Canada, a dominance that lasted
almost two centuries — ensured that the small European population would need the
cooperation of the indigenous majority.
Equally important, newcomers saw no need to change the Natives'
way of life. Apart from Christian missionaries who sought to convert First
Nations to Christianity, the Europeans involved in a commercial relationship
took a “live and let live” approach to relations.
The other prominent activity that emerged, especially in the
1700s, was military relations between Europeans and First Nations as France and
Britain contended for control of North America. Here too, European military
leaders saw no reason to try to change their First Nations allies. Indians'
skills in forest dwelling, travel via the river systems, forest diplomacy and
North American warfare were exactly what French and, later, British strategists
desired. Their need for indigenous allies was reflected in the creation of peace
and friendship treaties in the early 18th century, as well as in the use of
First Nation wampum belts, creations made of shells strung on deer gut. Wampum
belts were the means of recording negotiations in this period of the 18th
It's important to note that most First Nations in the East in
this early period found alliance with the European fur traders who were
concentrated north of the St. Lawrence River and the Great Lakes far preferable
to siding with the agriculturists in the Thirteen Colonies and, later, the
United States. From the Seven Years' War through the war of the American
Revolution to the War of 1812, First Nations favoured the traders in the North
over the more southerly farmers.
The history of early cooperation and fruitful relations was not
all positive, of course. Europeans unintentionally brought with them pathogens
to which indigenous North Americans had little or no immunity. As a result, even
in this positive early phase, Native people suffered a horrific loss of life to
disease. There were also occasional armed conflicts, things such as the
intermittent conflict between New France and the Five Nations, the Haudenosaunee
or the Iroquois, in the 17th century. But overall, unlike the United States,
Canada never adopted a policy of annihilation of the indigenous peoples.
Relations between First Nations and the British North American
colonies, however, were transformed in the early 1800s when the economic
foundation of the colonies shifted from commerce to an expanding agricultural
economy. The encouragement of settlement, the development of urban centres, in
the west the decline of the bison, and a reduced demand for furs meant colonists
no longer needed First Nations economically. Indeed, they now constituted a
barrier to settler goals. These economic changes represented a threat to
indigenous peoples. While trade had encouraged cooperation, agriculture levelled
the forests where they lived and pushed the peoples apart. Immigrant colonists
and indigenous hunter-gatherers were now rivals for resources, not partners.
From the altered economic relations, other changes soon flowed.
Because colonial farmers found indigenous hunter-gatherers an inconvenience,
colonists urged their government to control and restrict Native people. For
their part, British authorities who no longer believed they needed the
diplomatic and military assistance of First Nations were anxious to reduce the
costs of dealing with Native people.
The result of these changed attitudes was the development of a
radically different policy aimed at indigenous peoples. Whereas newcomers once
had sought the economic and military cooperation of partners and allies, now
they wanted to isolate and change them. The outcome of this shift was a series
of policies that attempted to control and reshape the behaviour and values of
Native peoples — to reshape them economically, politically, socially and
culturally. In other words, the result now was an aggressive attempt at
assimilation. The policies that have caused so much damage, such as residential
schooling, are all aspects of the drive to assimilate indigenous peoples that
developed in the 1830s in Upper Canada and was carried over by the Dominion of
Canada after Confederation. Passage of the Indian Act in 1876 solidified the
Efforts to compel First Nations to farm, to govern themselves
with elective institutions, to drop cultural practices such as the potlatch and
the sun dance, to adopt Christianity and to change how they saw the world — all
these things brought about dislocation and misery from which Canada is now
trying to extricate itself.
Assimilative policies frustrated communities in their
development, undermined families in their relations with one another and
unsettled young individuals trying to understand themselves, their community and
their place in the world. Discriminatory gender provisions corroded relations
between males and females too. Although assimilation ceased to be official
policy decades ago, its consequences, as in the residential schools, continue to
A proper understanding of this history can help us “build for the
future.” If we learn from the past, as the TRC said — that we enjoyed good
relations when we worked together on mutually beneficial projects and
experienced terrible relations when our goals became incompatible — that better
future will require rediscovering things that encourage economic cooperation.
A vital preliminary step to reconciliation, though, is redress of
the ill effects of a century and a half of destructive assimilationist policies.
Settling land claims, improving indigenous education, rebuilding safe and
healthy communities and respecting indigenous people's desire to map out their
own paths are all essential first steps. Redress should precede and then
accompany reconciliation, and then both Native and newcomer Canadians can define
mutually beneficial ways to work together.
Two obvious fields for such cooperation, areas in which
indigenous peoples have prior rights and vital knowledge, are resource
development and environmental rehabilitation.
Canadians once worked together cooperatively. If they understand
the reasons for that fruitful beginning and why cooperation later ceased, they
can build a better future together again. Thank you.
The Chair: Thank you, Professor Miller. The floor is now
open for questions from senators.
Senator Patterson: This has been a very useful,
big-picture look at where we are today as we seek to help our new government
define a new relationship with Aboriginal peoples.
Professor, I found it interesting that you described quite a
contrasting history between Canada and the U.S. in the early days of contact
because of different economies, but then you say that following the 1800s, when
land became an issue in Canada as the fur trade declined, we began to follow the
conflict and assimilation policies of the United States south of the border. Did
the Canadian government follow patterns of land dispossession and developing
reserves that were learned from the United States?
Mr. Miller: It was more a matter of following the dictates
of the Royal Proclamation of 1763. Thank you for your question, because it
raises an area I didn't have time to get into, which is the making of
territorial treaties in the late 18th and 19th century.
Following the Royal Proclamation, the Crown began to negotiate
for access to indigenous lands, and this led to a process of dispossession and
reserve creation, as you suggested. It was parallel to things that happened in
the United States, but it really was inspired by British Canadian imperatives.
Senator Patterson: You recommend that we should seek to
once again achieve the partnership that marked the early days of contact, where
settlers relied on indigenous people to manage the land and harvest its
resources and take care of the land, but you say redress should precede those
efforts at reconciliation. You spoke of settling land claims, improving
indigenous education, rebuilding safe and healthy communities and respecting
indigenous peoples' desire to map out their own paths.
As a committee, we have struggled with a lot of these same
issues. Our committee did a major study on education. We've been looking at
issues such as housing and drinking water and treaty settlement over the years.
To be candid with you, we found it to be a very frustrating exercise. We have
made recommendations that haven't always been carried out, and we've seen slow
progress. Government has put a lot of effort into these issues, and there isn't
a lot of progress. Even one of the major land claim agreements reached in North
America amongst the Inuit of my territory resulted in a very significant
litigation because there was a failure to implement what most people had hailed
as a remarkably progressive treaty.
You're saying we should redress these issues before we talk about
reconciliation. Well, we've been trying. Canada has been trying, and our
committee has been trying. I think with this study we've been hoping to find a
new path forward rather than continuing to bang our heads against the wall
working on these very important issues. I'm not diminishing them. But you're
saying no, we should continue to work on these issues and that reconciliation
can then follow. I guess I'm hoping there might be another way, a new way,
rather than just seeing slow progress on these major and seemingly intractable
issues. Would you comment on that frustration we've felt in this committee?
Mr. Miller: Yes. Ideally redress and reconciliation should
proceed together. I didn't mean to suggest a complete program of redress had to
be initiated and completed before we move to reconciliation. Ideally the two
processes would work together in parallel. The danger is if we don't do redress
as well as reconciliation, indigenous peoples will say, quite reasonably, “Talk
is cheap, but what about justice? What about solving these accumulated problems,
the products of 150 years of policy?” So I think, to answer you briefly, the two
processes should proceed together.
Senator Patterson: Thank you.
The Chair: If I may intervene here, I was very taken with
your last statement, Professor Miller, with regard to redress. Talk is cheap but
what about justice. Could you expand on that a little bit more? In my mind, I'm
trying to determine what redress means. Could you give us some examples of what
you might consider redress to be?
Mr. Miller: Perhaps I can tell a story from the South
African experience. There was a story told there during the South African Truth
and Reconciliation commission about Mr.. Tabo and Mr. Smith. Mr. Smith, a very
powerful member of the white minority, had managed to steal or appropriate a cow
that belonged to Mr. Tabo. When the truth and reconciliation process began, he
had a certain amount of remorse, and he reached out to the indigenous African
and met and talked with him. They had tea together and they were all very cheery
and jolly. As he was about to leave, Mr. Tabo said, “Mr. Smith, what about the
cow?” Mr. Smith said, “We had a wonderful meeting. We talked, we had tea, we're
moving toward reconciliation and you go and spoil it with that.” Well,
indigenous people in Canada want to know, what about the cow? What about solving
Perhaps a more energetic application of effort to roughly 1,000
accumulated claims would be one thing that could be done, as well as acceding to
the instructions of the Canadian Human Rights Commission to deal with the
allocation of funds for the support of young indigenous people. There are a
range of things that could be done.
I agree with Senator Patterson that it would be daunting or
impossible to tackle them all and solve them all quickly, but some meaningful
progress would have a salutary effect and promote better reconciliation.
Senator Enverga: Thank you for being here today. I think
this is a new era that we have been waiting for.
You mentioned a proper understanding of history. Are your views
and comparison between the U.S. and Canada part of the school curriculum now in
Mr. Miller: It's becoming part of the school curriculum.
It's not yet completely implemented. The view of the interpretation of Canadian
history and the history of Native/newcomer relations is one that began about 35
years ago in the academy, in the universities, and has become the consensus view
there. The way our educational systems work is that interpretation and
innovation at the post-secondary level eventually filters down to the secondary
and elementary levels. We're in that process now.
In my province, the province of Saskatchewan, it's well under
way. For almost a decade now, the province has had a system in the schools, a
curriculum, called “Teaching Treaties in the Classroom” that is very successful
in educating the whole population about the importance of treaties as the
foundation of Saskatchewan society. Indeed, it was Saskatchewan Treaty
Commissioner David Arnot who coined a phrase that's become well-known now,
namely, “We are all treaty peoples.”
That's a specific example of how the process works, and perhaps
helps to explain why it's not completely implemented yet but is under way. A
number of provinces, the N.W.T., Ontario and some others, have announced that,
as part of their response to the TRC, they will overhaul their curricula to try
to make it more promoting of reconciliation.
Senator Enverga: I'm hoping this curriculum will be
implemented for everybody as soon as possible. It is important for Canadians to
understand the history of Canada. I do not know if it's one of your suggestions,
but perhaps history should be part of a requirement for every new Canadian, like
new immigrants here in Canada, so that a proper understanding of our
relationship with the indigenous community will be further established and maybe
strengthened at the same time. Could that be one of your recommendations?
Mr. Miller: There is a fair bit of history in the booklet
“Discover Canada” that new Canadians get as they prepare for citizenship. One of
my volunteer activities is that from time to time I act as the presiding
official at citizenship ceremonies. I talk with newly created Canadian citizens,
and they have been through the process of learning. I agree with you that more
would be better, but then more education about their history would be better for
Senator Beyak: Thank you for an excellent presentation. It
was very informative for us. I travel a lot in the United States, as I'm sure
everyone does, and I have visited museums of Native history. They seem to be
living in harmony there, but could you tell me if that relationship between the
government and First Nations is working or if there's another model anywhere in
the world that we could emulate a bit instead of reinventing or trying to
reinvent the wheel.
Mr. Miller: I think the United States has serious
difficulties, especially if we look at things like the Dakota access pipeline
situation. That's a very clear example. They have a fairly lengthy history of
violence directed towards Native Americans, as they term them.
Perhaps the most fruitful example I can think about in the world,
although it's not one that fits the Canadian case perfectly, would be New
Zealand. The reason it doesn't fit perfectly is that the Maori in New Zealand
are roughly 15, 16 per cent of the population, whereas indigenous peoples in
Canada are about 4 to 4.5 per cent. Although interestingly, in the province of
Saskatchewan, indigenous people are about 15 or 16 per cent.
In New Zealand, they have had, from their earliest days, separate
political representation in their Parliament for Maori. They have very
productive educational programs there, well-supported indigenous language
programs and other things such as that.
They also have something very effective, though expensive, for
the resolution of claims, namely the Waitangi Tribunal, which interprets
and solves problems that arise from the Waitangi Treaty of the 1840s. That's the
closest example, but it's by no means a perfect match, senator.
Senator Beyak: Thank you very much.
Senator Raine: Thank you very much for being here. I had a
question, but I'm going to park it and follow up on Senator Beyak's.
I'm also aware of the Waitangi Tribunal in New Zealand. When I
look at the multitude of treaties that we're facing in Canada, which we're not
really resolving, I ask myself: Could there be a better way of resolving the
treaty issue? I agree that the treaties have been broken and that many Canadians
don't understand that we are all treaty people. Our government signed those
treaties on behalf of us, even though we weren't there then.
Has there been any work done at the academic level on some form
of Waitangi tribunal that could be established here in Canada? Could you expand
a bit on how that tribunal works in New Zealand?
Mr. Miller: There really hasn't been anything in Canada
equivalent to a study of the Waitangi Tribunal. There's been a lot of study of
the New Zealand case, however. The reason for that is, of course, with the
Treaty of Waitangi, you've got one treaty for the whole country. We have dozens
or hundreds of territorial treaties across Canada.
We have tried to approach the treaty resolution problem usually
in one of two ways. The first is litigation, which is highly problematic as you
all know very well. It's time consuming, expensive and rolling the dice. It's
either win or lose completely, as a rule.
The other is basically an attempt to talk our way through
differences of an interpretation. Both Saskatchewan and Manitoba have had treaty
relations or treaty commissions. They have not had enormous success, it must be
admitted, and the Manitoba one has essentially stopped functioning. Justice
Linden, in his Ipperwash inquiry report, recommended a treaty commission for
Ontario, but it appears as though that will not happen.
If a treaty commission could be effective, I think it would be a
good alternative to litigation. We have not yet found a mechanism, though, to
make treaty commissions effective.
Senator Raine: Following up on that, I realize that
indigenous people who lived in North America before contact were organized in
nations much different from what we call First Nations. We're just using it as
another term for an Indian band, which was an artificially created entity by the
Indian Act or by the government.
How important is it for us to roll back and look at how
indigenous people were organized in groupings, in nations, before contact? My
gut feeling is that there is as much difference between the world view, the
culture and the soul of the people, if you like, of, say, Cree membership or
descent versus Secwepemc where I live in British Columbia. It's as different as
Portuguese versus Germans — completely different kind of history and the way
Should we be finding out how to put back the original First
Nations — or I guess you could call them original indigenous nations — so that
the artificiality of how it's all chopped up now doesn't get in the way of
Mr. Miller: We can't, of course, restore the situation
that existed at contact, but we could understand better, as you're suggesting,
how indigenous societies are organized and how they function and what the
To take a specific example of what I mean, I think it would be
very beneficial if non-Aboriginal Canadians understood that most indigenous
societies are organized around kinship, and this is an absolutely vital concept,
institution and practice. One deals with strangers usually, if you want to
cooperate with strangers, by making kin of them in a process that
anthropologists call fictive kinship or ascribed kinship, and you accomplish
that by carrying out ceremonies together: formal welcomes, feasting, gift
giving, smoking the pipe.
Why would it matter if we understood that rather than being
ignorant of it? I think it would help non-Aboriginal Canadians to understand
what First Nations mean when they talk about the spirit of the treaties and that
Canada has violated the spirit and intent of treaties. They're referring to the
fact that the treaties were made in that context I've described. In the Prairie
treaties, for example, in every case except Treaty 4, you had a process of
kin-making that happened at the beginning of the negotiation process.
If non-Aboriginal Canadians understood indigenous peoples better,
I think they would be more understanding of indigenous peoples. One way to
understand them better would be to understand how they function.
Senator Tannas: Thank you, Dr. Miller. This has been
terrific, and I've got my head swimming with questions, but let me try one here.
I love your “What about the cow?” To me, we have to deal with
that. Do you think there is ever the possibility that we can make reparations
for the cow so that we never, ever have to talk about it again and we can move
forward? Do you think that's possible, in a perfect world, a moment where all
Canadians come together and say we want to deal with this, we want to create
equality of opportunity, we want to respect the culture, we want to do
absolutely everything, and we want to pay for the cow? Do you think that's all
possible to be done in a generation?
Mr. Miller: No.
Senator Tannas: How long do you think this will take?
Mr. Miller: It took about 150 years to create the problems
we face today. I think an optimistic view is it might take about 100 to resolve
them. But let's not be disheartened. Let's look back at where we've been.
Senator Tannas: What if we don't have a hundred years?
What if we see immigration coming, people coming from horrific situations, far
worse than whatever happened to First Nations in Canada, as you've detailed? The
colonists didn't run around and kill people and so on colonists. There are
generations and waves of immigrants coming from horrible places that will have
far less interest and far less sympathy and will be the taxpayers and the
financiers of whatever the cost of the cow is from a time when they weren't
I'm very nervous that we don't have 100 years to fix this and
that we need to figure out a path forward. I hate to say it, but can you point
to any shortcut that you have seen anywhere that could be helpful for us as we
go through this? I may have been disrespectful — and I don't mean to be, in any
way, shape or form — but I view this as something that is so urgent. Many of us
do. That's why we're here. That's why we stuck our hand up for government, was
to try and do something urgently here. We have a Prime Minister that believes
this is an urgent, urgent issue. You can see it in his actions and in the
posture of the government. Are there any hints you could give along these lines?
Mr. Miller: A preliminary comment I would make is about
immigrants and their attitudes. I hear frequently that immigrants will not
understand and will not be supportive of attempts to bring about reconciliation,
but my experience in dealing with new Canadian citizens is that they are very
eager to learn about the history and culture of the country. If we can instruct
them properly, I think they will be sympathetic.
You are putting your finger on the real problem, though, and that
is, “How do you keep the Canadian voters onside to support an aggressive,
expensive campaign of redress and reconciliation?” You probably won't be
surprised if I reply, “Education.”
Senator Beyak: This is not meant to be a controversial
question at all; I'm just curious with your expertise. Many years ago I voted
for Pierre Elliott Trudeau because of his white paper for First Nations. I had
personal interests at the time, and still do, family members, and I thought it
You can fill me in a little bit better on the history of it, but
it was something like trade your status card for a Canadian citizenship — a
one-time payout at that time of about $500,000 per Native — and you became a
Canadian, pursued your culture and your interests, your beadwork, your language,
on your own dime and your own time, and we all became Canadians together. The
people loved it, the First Nations people. What they called “the Indian
industry” didn't — the chiefs, the band councils, the people who were in charge.
Trudeau caved about six months into it and didn't do it, but it
seems as though Justin — we had a lady here, Pam Palmater, talking to us about
how they're trying to assimilate Natives by not registering them properly and
through 6(1) or 6(2).
Mr. Miller: Bill C-31.
Senator Beyak: Yes. I wondered if you had any comments on
that. It did seem like a very good idea at the time, for us all to be Canadians
together. The best of intentions were in the Truth and Reconciliation
Commission. They didn't mean to hurt anybody. The fathers and sons and family
members of the nuns and priests, to this day, have to bear the reputation as
well, and nobody meant to hurt anybody. The little smiles in the Truth and
Reconciliation Commission are real, the clothes are clean and the meals are
good. There were many people who came from residential schools with good
training and good language skills, and of course there were the atrocities as
Do you have some thoughts on whether something like that could
work today? Do you think Justin Trudeau is going down that path, and is it
possible to pay out — now it would be millions of dollars per Native — and we
all become Canadians together, to settle all the treaty rights?
Mr. Miller: The major defect in the white paper of 1969 to
which you refer was the process that produced it. There was a series of
consultations, so-called, that went on between First Nations and other
indigenous leaders and government officials for several years leading up to
1969. When the policy statement emerged in June of 1969, it reflected none of
those consultations. What it reflected was the philosophy and approach of the
Prime Minister, a highly individualist, anti-nationalist ideology. Nothing wrong
I was a young man then. I was supportive not of the white paper
specifically but of Trudeau's general approach at the time. But the problem was
that it was enormously disrespectful to indigenous peoples. They reacted and
their leadership reacted, and it was a united reaction right across the country
in opposition to it. Therefore, Trudeau and Chrétien, the then minister, backed
off and suspended the white paper.
I don't think anything like that, either in terms of process or
substance, is in the cards for the immediate future — at least I hope not.
Senator Beyak: Well, the Native people still talk to me
about it, the ordinary folks on the ground who just want to go to the mall, get
their nails done, get their hair done, live in peace and prosperity. They are
tired of the bickering. They are tired of everybody speaking for them. They'd
like to have a national referendum, Native to Native — where do you want to
live, what do you want to do, how do you want to move forward — instead of all
these groups that supposedly speak for them, but they don't feel that they do
speak for them. I'd love to speak to individual Natives across the country and
see how they really feel.
Mr. Miller: I understand that you're going to be
travelling across the country. I assume you'll have a chance to speak to and
hear from individual indigenous people.
Senator Beyak: Thank you very much.
Senator Sinclair: I want to apologize for not having been
here at the beginning, Dr. Miller. I was at another meeting and missed the first
part of your presentation. If I'm about to ask you a question you have already
dealt with, you can just say so and I'll read the transcript.
In terms of assisting and defining the relationship, Dr. John
Borrows, in his publications, often refers to the Treaty of Niagara and the
reference in the negotiation process around the Treaty of Niagara of 1764, to
the promises contained in the Royal Proclamation of 1763, as what he sometimes
refers to — not always — as the foundation of a new relationship going forward,
in which the Crown agrees to go back to its position in the Royal Proclamation
of respecting the internal sovereignty of indigenous First Nations. I wonder if
you have a thought about the Royal Proclamation of 1763 and the Treaty of
Niagara process and the work that Dr. Borrows has done around that.
Mr. Miller: It's too bad you were busy and unable to be
here at the beginning, senator, because I spent a lot of time praising the Truth
and Reconciliation Commission.
Senator Sinclair: Then for sure I'll read the transcript.
Mr. Miller: I am a huge fan of John Borrows’ work in
general and the work in particular on the proclamation and the Treaty of
Niagara. Basically for the benefit of senators as a group, Professor Borrows
argues that the Royal Proclamation, which was a unilateral Crown document, of
course, was converted into a treaty because Sir William Johnson, the first head
of the Indian department in our history, distributed the proclamation throughout
central and eastern North America, called an enormous conference of First
Nations leaders together at Niagara in 1764, in the next spring/summer, and got
their agreement to the terms of the Royal Proclamation in a long conference, and
they produced a wampum belt from that conference.
Professor Borrows' argument is that those actions converted a
unilateral Crown document into a treaty. The significance of that is if it's a
treaty, it's protected by the 1982 Constitution by section 35, for example. So I
think it's a sound argument. You cannot actually connect every one of the dots
to get to the conclusion, but there's enough evidence there to I think with
confidence make the inference that John Borrows draws from it.
Senator Sinclair: Thank you.
Senator Boniface: I just wanted to follow up on your
comments on treaty commissions. Again, looking for a path forward, where would
you have seen or where do academics see the commission as having been successful
in any aspect or if one construct of a commission was more effective than
Mr. Miller: The treaty commissioners have been most
effective in education, both public education and education in the schools. I
hope you can forgive a little bragging, but the Saskatchewan commission was far
and away the more successful of the two we have had so far. As I mentioned
briefly before, it fostered and supported the creation of new curricula on
treaties as a basis of Saskatchewan society for the schools. The current
government of Saskatchewan mandated the use of that curriculum in all schools
beginning in 2008.
The other thing that the treaty commission under David Arnot did
was carry out a very ambitious program of public education through a speakers
bureau and through TV commercials that were by and large sponsored by the CTV
network. They ran on Saskatchewan television channels. The theme was, “We are
all treaty people,” and it tried to convey that message.
The Saskatchewan Treaty Commission did facilitate a lot of useful
conversation between First Nations leadership and the federal Crown with the
provincial government there as an observer only, but it didn't lead to any
Senator Boniface: Thank you.
Senator Raine: You mentioned the Saskatchewan and Manitoba
treaty commissions, but there's one in British Columbia as well, and I'm just
wondering if you've looked at that. I do realize you said you would focus mostly
on Eastern Canada, but is it patterned in a similar way to Saskatchewan and
Mr. Miller: No, the British Columbia Treaty Commission is
a very different sort of commission. It was created by agreement among the two
Crowns and some the leadership of British Columbia First Nations to address
specifically the question of Aboriginal title. Of course, most of British
Columbia still has non-surrendered Aboriginal title, in effect, and that began
in 1992 to try to create treaties. It has a handful of them, basically 25 years
later, but that's all.
The other commissions were more a matter of working on
interpretation, modernization and implementation of existing treaties. They are
quite different in character, but thank you for the reminder. It is an important
example of a treaty commission.
Senator Raine: Thank you.
Senator Patterson: Professor, in your comments this
morning talking about looking at redress alongside reconciliation, you mention
an obvious field for cooperation being resource development. The environment is
connected with that. Senator Tannas has said we have urgent issues. I think most
Canadians would agree that resource development issues are pressing issues that
are a source of confrontation and frustration from many parties. At the root of
the problems of resource development are dispossession of land and concern about
proper stewardship of land.
I would put it to you that in comprehensive claims settlement, in
the North in particular, the federal government took a different approach to the
management of land. One was to give the First Nations, the indigenous nations,
big chunks of land. The Inuit of Nunavut own almost 20 per cent of the land in
the Nunavut territory, which is the biggest in Canada, in surface or subsurface.
They were also given rights in the management of land, in the regulatory
process, through co-management schemes. Finally, they were given a guaranteed
share of revenues from land. I've always thought that this was a possible model
for reconciliation in the rest of the country.
We have lots of land. Now, a lot of it is alienated by third
parties in Southern Canada, but there still is a lot of Crown land. Canada and
provinces don't need to be the only ones that obtain revenues from resource
development. Our regulatory system in some quarters is seen as not credible and
needing to be reformed. I'm not sure if I agree with all of those sentiments,
but what would you say about these principles of co-management, resource revenue
sharing and generous reallocation of Crown land as a basis for redress in this
whole contentious issue of land and resources?
Mr. Miller: As a preliminary comment, senator, I agree
with you that resource development issues can be a source of frustration.
Sometimes, though, they are a source of cooperation. In my province, the
Muskowekwan First Nation is in agreement with the potash company to develop a
$3-billion mine, and they are quite happily working with that resource company.
In many other provinces — and British Columbia is an example — there are many
cases where the First Nations have worked out bilateral agreements with forestry
or resource extracting companies. It's not always about frustration. It's
sometimes about cooperation, and we tend sometimes to focus a bit on the
frustration part of it, for I guess understandable reasons.
To come to your principal question, yes, I think what was done in
the Nunavut agreement can serve as a fruitful model, where there is sufficient
Crown land available. I would part company with you, though, on one point,
senator, with respect, and that is the way you characterized some of the terms.
I don't think Canada gave the First Nations anything. I think they let them keep
their lands, basically. That quarrel apart, I think I agree with you.
Senator Patterson: Thank you. I stand corrected.
Where this reconciliation has worked — you mentioned the potash
project in Saskatchewan, which I know a little bit about, where we've had these
bilateral agreements — what allows these partnerships to occur instead of the
confrontation that we see in other places? What is it that is done right in
those situations? Is it enlightened companies? Is it different government
policies? What are the ingredients to create a win-win situation in resource
Mr. Miller: I don't claim to know the mechanics of all the
agreements by any means, but I think on the whole, the reason it happens where
it happens is that the First Nations, or Inuit in some cases, are approached
respectfully by the companies and are dealt with and negotiated with on that
basis. Where it doesn't work fruitfully is when they're not respected and when
resource companies and governments try to carry out development without dealing
with them properly.
Senator Patterson: Just a quick footnote: I believe
companies approach Aboriginal peoples respectfully in Nunavut because they're
required to negotiate impact and benefit agreements before getting a licence to
develop. Companies know that they have to form partnerships if they're going to
develop resources in the North by the terms of the land claim agreement, which
is protected by the Constitution.
Mr. Miller: Now that the Supreme Court has promulgated the
doctrine of duty to consult, perhaps that applies everywhere.
Senator Oh: Professor, I agree with your comments on the
importance of education. As a Canadian of Chinese background, I have spent a lot
of time learning about the discriminatory legislation instituted against members
of my own community. It has given me a greater understanding of our past and
current situation. Do you think that indigenous children would also benefit from
having access to a curriculum that would enable them to understand their current
context? Would this continue to give them greater capacity to mobilize or to
advocate for their own interests? Are there any programs across Canada that
provides indigenous children such information, or is it mainly just through
their own communities?
Mr. Miller: During my career, one of the things I worked
on was the history of residential schooling. I published a book on the subject
in 1996. One of the things I discovered in doing the research for that book and
since is that indigenous people have always been interested in and open to
learning from Europeans. They've never been closed-minded about their knowledge,
their technique or their religion, for that matter. I think they always had been
in most parts of the country.
I think there's every reason to believe that educational systems
conducted by indigenous peoples will indeed convey the kind of information and
knowledge you're talking about to their young because they see it as
strategically necessary and as vital to the future success of their young people
and their communities, basically. I would be very optimistic about what they
will do in their educational systems.
Senator Enverga: Professor, you mentioned that one of the
causes of the difficulties right now is assimilation. Canada is not a melting
pot like the United States. We have multiculturalism whereby we respect
differences and we use those differences to build a stronger nation. It aids in
a culture of understanding, tolerance and acceptance. Is this working for the
indigenous group or does it create a more complicated workplace or culture for
our indigenous groups? Is it helping at all culturally?
Mr. Miller: I hesitate to speak for them. It's not my
place. However, I think that indigenous people resist being seen as another tile
in the multicultural mosaic. If I may be a little flippant about it, to borrow a
statement that came from the United States, one member of an ethnic community in
the United States said, “Ethnic groups run restaurants. We're a nation.” That
was the answer.
I think indigenous people see themselves as distinct people, as
nations, not just another ethnic group within a multicultural society. They're
not opposed to it, but they see their own status and place within the country as
something different from newcomers, basically.
Senator Enverga: Could multiculturalism be a cause for
misunderstanding between the different cultural groups and our indigenous
people? Could that create more problems?
Mr. Miller: I think the process that Canada uses to
educate and acculturate new Canadians before they become citizens should head
off that potential danger. As I mentioned, I deal with a fair number of new
citizens as a presiding official sometimes at citizenship ceremonies. They seem
well informed and quite comfortable with the special status that indigenous
peoples hold in the country. They are eager to learn more about it. That's been
Senator Raine: I have a follow-up question. These days,
refugees and immigration are in the forefront of the news. I find it very
unfortunate and a bit disheartening that we hear from the media comments like,
“We are all immigrants.” It's like there was nobody here when we got here. We're
losing a really good opportunity at this particular point to reinforce not only
the fact that the First Nations were here but also the fact that their values
and their culture give us something to learn from. Do you have a comment on the
role of the media in informing Canadians?
Could you go back to what you said about Saskatchewan, where the
government sponsored advertisements about “We are all treaty people” and how
that worked? Did that help to change the attitudes of all Canadians? I know it's
not a common response, but I have heard responses from people who say, “I came
here with nothing and I worked hard. Look how well I've done. Why don't those
people get off their butts and get to work?” That's really unfortunate. So just
some more comments on that?
Mr. Miller: I think we all get frustrated with our media
from time to time. It's important that we try to understand what they've been
going through too, however. They have been taking a real hammering financially
with the drastic technological change that has been going on over the last
quarter century, roughly. I think we should cut the reporters a bit of slack,
because there aren't very many of them, they're not given any time to do
research and prepare, and their editors are very few in number and they can't do
much to help either. I share frustration about the media sometimes, but I try to
be understanding as well.
In the Saskatchewan case of teaching treaties in the classroom,
the curricula were developed by a team of educational professionals sponsored
and encouraged by the treaty commissioner for Saskatchewan. Then the provincial
government mandated — that is, instructed, through the Department of Education —
that all schools would adopt and use those curricula, from the lowest grades of
elementary school through Grade 12. If you're interested in that, all those
curricula are available at the website for the treaty commissioner, www.otc.ca.
I think it has been successful. We'll know better in 10 years, but I think it is
a very useful model that others could emulate.
Senator Beyak: I don't think I've ever asked three
questions in all the time I've been on this committee, but it's so nice to have
a historian here. Thank you.
I was interested in what you said about the residential schools
and the book that you wrote. Again, I have testimonials from many people. I live
in a riding that has 52 First Nations around us in our catchment area, and I
have many friends there, and they have sent me testimonials about many good
experiences. The best example is the playwright Tomson Highway, who credits his
success to going to residential school. He acknowledges the atrocities but says
there were good people doing good things, who taught him language and how to
play the piano. I wonder if you could tell me a little bit more about that side
I was disappointed in the Truth and Reconciliation Commission's
report in that it didn't focus on the good. The people I talk to are Christians.
They belong to Spirit Alive, a group in Saskatchewan, and Tribal Trails. They
look through the windshield rather than the rearview mirror. They want to move
ahead in positivity and happiness and not focus always on the past. Do you hear
anything like that, or did you do that kind of research for your book?
Mr. Miller: You're putting me in a very difficult position
with Senator Sinclair sitting here.
Senator Beyak: I know, but he's a very open-minded man
Mr. Miller: I think the Truth and Reconciliation
Commission report did talk about the staff at the residential schools and did
say some positive things about them. It did try to acknowledge that there were
some positive results for some people. My own research found the same thing,
that there is a very small minority that had a good experience.
My research told me, though, that overwhelmingly people had a
very mixed experience. There were some good things, things like sports — and the
TRC report brought that out very clearly — and a variety of other things like
that, but many more difficult things, such as emotional deprivation; poor care;
inadequate instruction; overwork; aggressive and hostile proselytization by
missionaries and so forth. That was my experience. I hope you'll excuse me if I
weasel out of it and don't say anything more.
Senator Beyak: Thank you very much.
Senator Sinclair: In an opinion piece written in the
spring of 2016, the former treaty commissioner of Manitoba, Jamie Wilson, wrote
about an experience he had speaking with students in a location in Manitoba. In
his opinion piece, he said that when you look at the impact of the Indian Act
upon the First Nations people of Canada, it certainly has had negative
consequences. But he said that there is actually a good example of people who
have been able to live successfully in areas where they hold title in common,
where they have the right to educate their children free from outside
interference, the right to their own culture and the right to be protected from
outside interference with their own culture, the right to practise their
religion without outside interference, the right to freedom from outside
interference in their forms of self-government, and the right to manage their
own economies. He refers specifically to Hutterite colonies, and he said that
Hutterite colonies are an example of how Indian reserves could have been if the
government had not passed the Indian Act. Do you have a comment about that?
Mr. Miller: Yes. I have a lot of comments, but I'll try to
I think it's one of the tragedies of Canadian history that
literally at the same moment that Canada was making treaties following
indigenous ceremony — such as Treaty 6, the Treaty of Fort Pitt and Fort
Carlton — at the very same time in 1876, Canada passed the Indian Act. The
reason it has been tragic is that the treaties — at least the way they were
made, if not the way they were implemented — embodied that idea of kinship
creation that I tried to describe very briefly. Whereas the Indian Act, of
course, set up a completely different relationship between government and First
Nations, a relationship not of kin who help and support each other but, rather,
of parent or trustee and child, or ward — a totally different relationship. That
blighted what could have been, I think, a much more positive relationship. If we
had stuck with the treaty approach as it was negotiated in the numbered
treaties, particularly the southern numbered treaties, I think we would be a
very different country today. But that's not what we did.
Senator Sinclair: This is the big question: In terms of
going forward, what is it that this committee, do you think, should be taking
into consideration in terms of foundational aspects of the new relationship
going forward? What are the keys that this committee should be looking at in
terms of how we get out of the current situation and into a situation that has
been promised by the Prime Minister in his various speeches?
Mr. Miller: I think again I would quote the TRC final
report and talk about the need to re-establish a relationship of mutual respect
and support. I think that is the necessary foundation on which we can add the
other instruments, such as education, both school and public, for example;
redress to solve the accumulated problems as well as we can, as quickly as we
can; and to promote reconciliation and better relations.
Senator Patterson: I know you just had a short time to
present, but I was kind of struck by your omission of any reference to the Royal
Commission on Aboriginal Peoples. I know that it was created in a different era,
post-Oka, and there were a lot of tensions in Canada over some of those very
difficult issues of the 1990s, but RCAP was an attempt to restructure the
relationship between indigenous and non-indigenous peoples in Canada. That was
the fundamental mandate, and their final report presented a roadmap for
fundamental change for the next 20 years. It had 450 or so recommendations. The
AFN says that 20 years later, maybe one recommendation had been implemented.
Can you just reflect on that experience of RCAP? I know it's a
great source of data on history and information and research, but that report
didn't seem to have recommendations for change, and they're studying the same
issue that we are now boldly tackling, restructuring the relationship. Could you
comment on the RCAP experience and maybe why it apparently hasn't helped to
Mr. Miller: I have a chapter on RCAP in a book on
reconciliation that I'm publishing in September, so it's something I've thought
about a fair bit.
I agree with you that RCAP produced an awful lot of very useful
data, and the public community hearings that were conducted were very useful in
public education. The problem with the report, however, was that it was
inappropriate for the time and unrealistic. As the deputy minister of Indian
affairs, Harry Swain, said of it, “RCAP was dead on arrival.” By that, he meant
and I mean that it called for things like enormous re-creation of a new system
of governance, a third house of Parliament, for example, at the very moment when
most Western democracies were marching resolutely in the opposite direction,
trying to shrink the role of government wherever they could. This was the
mid-1990s, for example.
Similarly, their recommendations, however worthwhile, would have
called for an enormous, immediate expansion of expenditure, again at a time when
the country was finally facing up to the fact that it had an unsustainable
deficit and a rapidly increasing debt. You may recall that it was shortly after
that that the Chrétien government, with Paul Martin as finance minister, tackled
that problem in a very aggressive budget in 1996-97.
So RCAP had many good things about it, but I do think that the
main thrust of its recommendations didn't suit the time and circumstances and
therefore had little or no chance of being successful.
Senator Patterson: Thank you.
The Chair: Senator Watt will be the last questioner, but
before we proceed with his question, I had a quick supplementary with regard to
RCAP. It was in 1996 and that was the same year that the government introduced
the 2 per cent cap, which I believe and the committee believes has had a serious
effect on the financial well-being of the various First Nations across Canada.
When that cap was lifted, the provinces received a top-up, but the First Nations
had never received that top-up. I'm wondering, in your view, do you think that
has contributed to some of the financial difficulties that the individual First
Nation bands have found themselves in?
Mr. Miller: Yes, it has been a huge aggravating factor for
First Nations. If you don't mind a suggestion, if the committee is so inclined,
you would profit from having as a witness Scott Serson, who was the deputy
minister at the time. I interviewed him for my project. He understood that the
cap, in his department's case, was to last two years and then be lifted and
then, “My colleagues stabbed my in the back.”
The Chair: Thank you. We did hear from Mr. Serson a few
years back, and I believe he made a tremendous impact on the committee. Thank
Mr. Miller: The combination of the cap and a rapidly
growing birthrate amongst indigenous people means that the gap between resources
and programs just widens terribly.
Senator Watt: Thank you for your presentation. I guess an
area I would like to cover is sort of based on partly my own personal experience
dealing with the government in negotiations and also negotiating the
constitutional rights of Aboriginal people.
I think at times we had to come to realize that there is within
the system a roadblock that takes place from time to time. I'm not sure whether
I'm making myself clear when I say “roadblock.” I'm talking about obstacles in
the negotiations themselves and also after the negotiations when it comes time
to implementing what you thought you have concluded as a deal, as a treaty.
I do have questions that I would like to put to you. It's more on
administrative matters, but at the same time it has the ability to influence
political people, the ministers and people in the House of Commons who have to
vote from time to time. I'm actually talking about two departments within the
system. One is the Department of Indian Affairs. One is the Department of
Justice. They're very well entrenched within their authorities. They know what
they're doing. They know what they're following, the policy that has been set
and agreed to by the system and to be the system, to be implemented, whether the
people like it or not.
What do you do with a department, such as the Department of
Indian Affairs, that has the tendency from time to time to influence a
politician and make politicians make different decisions from what has already
been agreed to? What do you do? This is an area where I would like you to give
me some kind of response as to what we do with it. How do we deal with it in
order to remove that obstacle, not only in the Department of Indian Affairs, as
I mentioned, but also within the Department of Justice? I'll just leave that
with you for now and maybe I'll have an opportunity to ask a supplementary
Mr. Miller: A wise man once told me, when I discussed with
him the aftermath of the Prime Minister's apology in 2008 and why things went
off the rail all the same, that it wasn't messaged down to the bureaucracy. That
was the explanation. I think that indeed is a big part of what happened with the
I think from that we could draw the conclusion that if we want
change in the bureaucracy — and you have explained very well that there is
resistance because there are accumulated interests there — then the person at
the top has to be very insistent, repetitive and emphatic that this is to be
done. I think that's the only way — from the Prime Minister to the group of
deputy ministers to their various staff. I think that's the only way the message
at the top gets messaged down to the people in the civil service.
Senator Watt: Do you feel that the leadership that we have
within indigenous peoples, such as the Assembly of First Nations, Inuit Tapiriit
of Canada, should work out an arrangement, a structure, before the actual
negotiations take place, if the reconciliation will be moving side by side with
trying to arrive at a new understanding? Let me use the word “understanding” for
now, because we are not yet there in terms of a relationship.
In order to have the Prime Minister and the executive arm held to
it, in the sense that they have an obligation to move forward, do we need the
general public of Canada to come to realize that we as an Aboriginal people in
this country are struggling and we do need attention from the general public of
How do we deal with that? How can we mount pressure on the Prime
Minister, with the executive arm, and try to remove the obstacles, like Indian
and Northern Affairs and the Department of Justice, to try to move ahead? Would
it be better to maybe call upon a national referendum, well-organized and
establishing a target so the general public of Canada can follow and put
necessary pressure from time to time when it is needed? Can you respond to that?
Mr. Miller: I think we're back to education. I completely
agree with you that in order to get the political level to act and to get the
bureaucracy to follow, the general public must be supportive. The way to obtain
that support is by educating the public about the real situation, essentially. I
really don't see any other way around it.
I would hesitate to try to tell First Nations and Inuit and Metis
leadership how they should conduct their affairs. It seems to me they are pretty
effective on their own.
Senator Watt: If this committee is to be effective in
terms of nailing down what needs to be nailed down, it's a long road, and we
will have to shift very differently from the way we have been conducting our
business. If we do not take this opportunity that is available to us today, it
makes me worry how long this opportunity will be around. There are problems. We
are complaining about a lack of movement and quickness from the Prime Minister.
I have heard comments from the outside from time to time saying maybe he's too
young. Maybe he does not fully understand what should take place, but he's
dealing with it as sort of icing on the cake.
I, for one, was appointed by his father, and I have always
supported his father. I do support the Prime Minister, and I want to make sure
that he is given a full opportunity to move ahead. If we don't help to get
things moving in the right direction, I think we will be missing the boat again.
I'm worried about the time. I know this is not really your area to respond, but
nevertheless, we do have obstacles.
I want to get back to the Department of Indian and Northern
Affairs issue. You mentioned the answer is in education. Does that mean that the
Department of Indian and Northern Affairs, which administers the Indian Act,
should continue on? Or should they be suspended and put on the side while the
negotiation is taking place and not interfere? Would that be a solution?
Mr. Miller: The last Prime Minister that wanted to abolish
the Department of Indian and Northern Affairs had to back away within less than
a year. You may recall the white paper.
Senator Watt: Would it be better for this committee to
take into consideration getting rid of it for now? That's all the First Nations
have, even though we don't agree with it. Can we move in the direction, as a
committee, of suggesting it should be suspended for a period of time, maybe with
a timetable attached to it, to begin the negotiation and for the negotiations to
conclude? If we don't move in that direction, we will keep on going. You have to
have some kind of a sunset clause within the approach we are taking. Without the
sunset clause, it could go on and on and on and never end.
Mr. Miller: With respect, I would encourage the committee
to discuss that sort of action or other actions with First Nations political
leadership and try to come to an agreement.
Senator Watt: Thank you.
Senator Raine: This has been a really interesting session.
We've covered a lot of ground, but you mentioned in your remarks that following
the passage of the Indian Act, efforts compelled First Nations to govern
themselves with elective institutions.
The question of governance among First Nations has come before
this committee several times. We know that governance is very important but that
many First Nations have traditional ways of governing themselves. Many of us on
this committee feel that the need for controlling how they govern themselves
should be left to individual First Nations and there should be some mechanism to
opt in to self-governance and opt out of the Indian Act.
I had a bit of a mentor in former Senator Len Marchand who
educated me a little bit about First Nations history. He used to say the Indian
Act is both a fortress and a prison. If you're ready to step out and go it
alone, it is a prison. You can't get out. On the other hand, for many First
Nations who aren't ready, it protects you and it gives security.
We can't just change it overnight. Have you, in your studies,
looked into the ability for First Nations to opt out of the Indian Act and opt
in to self-governance? We had a colleague, Senator St. Germain, who tabled Bill
S-212 just before he retired which unfortunately hasn't received much attention.
I'm just wondering if you have had a chance to look at that or if you had some
thoughts on ways to break down the prison walls of the Indian Act.
Mr. Miller: I'm not familiar with that specific bill,
senator, but I have done a little work on the governance issue for another book
I published called Lethal Legacy. I had a chapter specifically on
governance. For that project, I interviewed leadership in the Sechelt First
Nation in British Columbia, and of course they were unique because they
negotiated their own self-government arrangements in 1986, if I remember the
year correctly. They negotiated their way out of the Indian Act. Other examples
include the Yukon Final Agreement of First Nations because there are provisions
there for self-government. Nunavut, of course, is a special case, as is the
Since 1995, federal governments have had a self-government policy
and program. There are a variety of mechanisms available already, and I think if
First Nations wish to avail themselves of some of them, there are openings
Can they be better? I'm sure they can, and I don't have the
expertise to suggest how they should be improved. I think people you will talk
to during your deliberations will probably give you some ideas on that.
Senator Raine: Thank you.
Senator Beyak: Senator Watt's question raised another
question for me. He mentioned the government trying to make significant changes,
and you said the only time a government tried was the white paper and look what
happened there. You mentioned that all across Canada there was unanimous support
not to do the white paper, but none of the Native grassroots people that I work
with and live with knew anything about it. They didn't feel that their band
chiefs or their councils or any of the groups that supposedly represent them
told them the details of it.
I wonder what you think of having a one-on-one talk as we go
across Canada. How do we reach the grassroots Natives and bypass the groups that
supposedly represent them? Because they don't feel that they do.
Mr. Miller: I had never thought about that, senator. I
would assume you can advertise and not just in publications but perhaps in First
Nation and other indigenous electronic media. Let people know that you're
available to talk to them if they wish.
In my work, I've always concentrated on the leadership because
there you have institutions you can analyze and they produce materials you can
similarly analyze. I'm not really much of an expert on the particular point
Senator Beyak: Thank you.
The Chair: I will ask a supplementary to that. I don't
believe we have talked yet this morning about involving youth leaders. Of
course, as you probably know, Professor Miller, in Saskatchewan, the Idle No
More movement arose out of four women who were from Saskatchewan, or working in
Saskatchewan, and I believe they represented a sea change in how First Nation
grassroots communities are being involved, primarily to some extent through
We're now seeing what I used to term the brown baby boom. We're
now seeing an educated group of young people who understand what it means to be
a First Nation citizen but also have the tools available to them of being
educated in the mainstream educational systems, and Idle No More seems to have
very good roots in communities. Do you see that group of people as an important
and essential piece that we ought to consider as we move forward on our new
study to develop what the new relationship should look like?
Mr. Miller: Yes, I think Idle No More was a game-changing
development — it was outside the political leadership, to come back to Senator
Beyak's point — with four remarkable women from Saskatoon, one of them a PhD
candidate at the University of Saskatchewan, for example.
The other thing about Idle No More, of course — and maybe this is
something the committee could use themselves — is the way that they used the new
social media to communicate, to organize and to convene groups to do things.
The other thing about it, which is not often remarked upon but I
think is also important, is that though they were tactful about it, the very
existence and often the actions of Idle No More were an implicit criticism of
the political leadership of First Nations organizations.
The Chair: Thank you.
Senator Sinclair: We have talked a lot about First Nations
in this conversation, professor. For the benefit of the committee members, what
are the unique aspects of the relationship between government and Canada with
the Metis and with the Inuit that need to be taken into account when we talk
about a new relationship with indigenous people that might differ from First
Nations and their relationship with First Nations?
Mr. Miller: With the Metis, senator, the most important
thing there is the lack of a land base as a problem that the Metis have to deal
with and have dealt with for almost 150 years now. I think that's the biggest
problem they have faced, and Canada will have to deal with that sooner or later.
I'm not as confident in commenting on the Inuit, but I would make
one observation and that is that the Inuit have always behaved politically as
though — and they say it themselves in the 1980s — they wanted into Canada. They
always emphasized that more positive aspect of their agenda. That is something
on which governments can build productively in dealing with the Inuit and with
Senator Sinclair: Thank you.
Senator Pate: I was interested in your comment about RCAP,
and I want to come back to that a bit and the decision not to implement many of
the recommendations and to argue the economic arguments really missed the point
of the impact of not addressing those issues that are, again, revisited in other
justice reports but especially with the Truth and Reconciliation Commission.
In your review of this, have you looked at the corollary costs
and the manner in which there has been no seemingly comparable expensing of the
cost of criminalization and imprisonment, for instance, disproportionately of
the indigenous peoples of this country? In particular, have you looked at the
fact that women are the fastest-growing prison population, which is not
indicative of their criminality, per se, but of their marginalization?
Many of the recommendations that first came out in RCAP and were
repeated in the Truth and Reconciliation Commission actually have huge cost
implications that seem to get buried in the discussions and not addressed front
and centre. The Parliamentary Budget Officer costed one indigenous woman's
sentence at $7 million, for instance, which started off with a very minor
offence and things accumulated in the prison system. If we invested that money
not just in the community where she lived to benefit her but many others, we
could see some very different results. I don't know if that actual analysis has
happened about RCAP in particular.
Mr. Miller: I'm not aware of that analysis being done
either. I think it's a very interesting question but not something that I have
expertise in personally.
I would be a little cautious, though, about assuming that if
RCAP's recommendations had been implemented, that there would have been
tremendous change or all things would have been solved. I think of the
recommendation on residential schooling, for example. They recommended that
there be a commission of inquiry, basically — not the most inspiring conclusion.
I thought that in 1996 and have thought that many times since.
Senator Raine: I really like to take advantage of
witnesses when they're here. On our agenda we are currently looking at Bill S-3
on gender equity for First Nations people. From a history point of view, can you
give us any kind of experience that you might have on how gender inequity came
in through the Indian Act, and was it intentional and what efforts have there
been to redress it?
Of course, you may have seen that the Quebec court has given an
extension to the government of another five months I believe, to come up with
I would appreciate a few comments, if you wouldn't mind.
Mr. Miller: I better get this answer right because my wife
is a specialist in women's and gender studies.
The gender inequity actually came into legislation before the
Indian Act. The Indian Act is 1876, but gender discrimination as a result of
marriage out — as the expression goes — that comes in a statute in 1869 called
the Gradual Enfranchisement Act. That's the first time that legislation
specifies that if an Indian man marries a non-Indian woman — and I'm referring
to status there, that's all — then that woman becomes an Indian person.
Conversely, if an Indian woman marries a non-Indian male, she loses status and
their descendants forever will lose status as well.
There was an attempt to reform that, to correct it, in Bill C-31,
and it did create some redress. A fair number of people got status restored as a
consequence of that. But what we're now facing is the unforeseen consequence
that was in some of the details of Bill C-31, and that is what is sometimes
called the “double grandmother rule,” that unless you have successive
generations marrying status Indian people, there still will be a loss of status
down the road. I have seen demographic projections that are really quite
hair-raising, that by 2070 status Indians will disappear, if you just project
the way things have gone. So that's where it came from, that's where we are, and
that's one nightmare vision of where it can go.
Senator Raine: Thank you.
The Chair: Thank you, Professor Miller. I think we are at
the end of our time. I want to thank you on behalf of all the committee members
for your presentation this morning. It was a good overview, and you have
answered everything from A to Z with regard to indigenous history in Canada. At
the end of this session, we should be granting you a Doctor of Letters with
regard to being a witness at this particular committee. Thank you very much, and
that is the end of our session.
Mr. Miller: I thank you for the opportunity to speak with
you, and I wish you the very best of luck in your labours on this most important
subject. We all need you to succeed brilliantly.
The Chair: Thank you.
And I should remind members there is no meeting tomorrow night.