THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
EVIDENCE
OTTAWA, Tuesday, October 2, 2018
The Standing Senate Committee on Aboriginal Peoples met this day at 9 a.m. to continue its study on the new relationship between Canada and First Nations, Inuit and Métis peoples.
Senator Lillian Eva Dyck (Chair) in the chair.
[English]
The Chair: Good morning. Tansi. 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.
For the sake of reconciliation, I would like to acknowledge that we are meeting on the traditional, unceded lands of the Algonquin peopleS.
My name is Lillian Dyck. I am from Saskatchewan, and I have the privilege of chairing this committee.
Today, we continue our study on what a new relationship between the Government of Canada and First Nations, Inuit and Metis people’s of Canada could look like. We continue looking forward at the principles of a new relationship.
I will now invite my fellow senators to introduce themselves, starting with our deputy chair.
Senator Tannas: Scott Tannas from Alberta. Welcome.
Senator Patterson: Dennis Patterson from Nunavut.
Senator Doyle: Norman Doyle, Newfoundland and Labrador.
Senator Boniface: Gwen Boniface from Ontario.
Senator McCallum: Mary Jane McCallum from Manitoba.
Senator McPhedran: Marilou McPhedran from Manitoba.
The Chair: Thank you, senators.
We now turn our attention to our study with our witness this morning: Mr. Aaron Detlor, Lawyer, Haudenosaunee Development Institute. Mr. Detlor, you have the floor. Following your presentation, there will be questions from the senators.
Aaron Detlor, Lawyer, Haudenosaunee Development Institute: Good morning, and thank you for having me. My Kanien’kéha name, or my Mohawk name, is [Editor’s Note: The witness spoke in his Indigenous language]. It simply translates into “he knows the business of the business.”
By way of introduction, I’ve been a lawyer now for something in the range of 30 years. My family is originally from New York — what is now called New York state. I’m Kanien’kéha, or Mohawk. My parents now reside on the Tyendinaga Indian reserve, which is near Belleville, Ontario.
For the last 20 years, I’ve been practising in the area, almost exclusively, of what’s now called First Nations law; at one time, it was called Aboriginal law. We still have to use that word — the Indian word — because of the Indian Act.
As an introduction into who I represent today, the Haudenosaunee Development Institute, the Haudenosaunee would very much oppose and object to a characterization of them as Indigenous, Aboriginal and/or Indian. The basis of that is that these terms are — and I apologize if this comes off as a little harsh — racist terms. The term Aboriginal is racist, the term Indigenous is racist and obviously the term Indian is racist. They attempt to aggregate different groups of people into one preconceived notion of what is easiest to manage from an administrative perspective. This is what the Indian Act did back in 1860s. I’m going to use the terms Aboriginal, Indigenous and First Nations somewhat interchangeably, but I’m going to do it with that objection noted. I see a few nods. I think we’re all familiar with the difficulty in and around some of the language in discussing these issues.
The Haudenosaunee Development Institute is an entity that was created by the Haudenosaunee Confederacy chiefs council. The Haudenosaunee are made up of five or, depending upon who you speak to, sometimes six constituent nations. The Haudenosaunee are formed by the Mohawk Nation, the Onondaga, the Seneca, the Cayuga, the Oneida, and the Tuscarora are often referred to as the sixth nation, even though there’s a constitutional dilemma right now with respect to the Tuscarora, who are a part of the Confederacy.
The Confederacy is based upon something called the Great Law of Peace, which is a rough translation. It’s often translated into the Great Law or the “great law of how you’re supposed to conduct yourself with other nations.”
There’s a unique governmental structure that the Great Law provides for. It’s unique in the sense that it is driven primarily by the rule of women — women who sit at the head of 50 clans that make up the number of clans among the Confederacy. Each nation has a different number of clans; for instance, Mohawk has three different types of clan — mohawk, bear and turtle — and each one of those has three different family clan titles. Women sit at the head of those clans and are responsible for a majority of the decision-making that affects the life of a Haudenosaunee person.
The clan mother, with the women of her family, chooses a chief. That chief is installed as a royaner, and it is the women of the clans and the women of the nations that have the right to remove that chief. The chief sits there and makes decisions at the pleasure of the women of his clan.
There is a specific structure the Great Law provides for. The Onondaga sit in what you would refer to as an executive role. It’s a bicameral system. We have the older brothers and the younger brothers. The older brothers are primarily the Mohawks and the Senecas who sit actually in a longhouse similar to this. They sit on one side. The Cayuga, the Oneida and the other nations that align with the Confederacy sit on the other side of the house. The Onondagas would sit at this side.
The decision-making process is driven by the chiefs. They have something called “the well.” A decision comes into the well. The Mohawks and Senecas decide upon a resolution to the decision. They toss it over the fire to the younger brothers, the Oneida and Cayuga, who come to one mind on that decision. They agree, and it comes back to the Mohawks and the Seneca, who agree. Then it goes up to the Onondagas who have to agree.
After there is an agreement reached amongst the 50 chiefs — right now, I think there’s something in the range of 37 chiefs currently sitting. Some chiefs have passed away, but there’s actually 37 or 38 chiefs sitting right now. After agreement is reached among them, then it becomes law for Haudenosaunee people. That’s a distinct legal process that’s existed pre-contact and, in the parlance of the Supreme Court of Canada, “since time immemorial.” That government structure is there. It’s functioning to this day.
Much of the business of the Haudenosaunee is done in the language. The Haudenosaunee are lucky to have a significant number of speakers, although they have been suffering greatly with the impacts of colonialization and its impact on the language.
The Haudenosaunee, through this system, have engaged in a long, diplomatic relationship with the Crown. Beginning back into the 1600s, the Haudenosaunee have a number of treaty relationships with the Crown. I’m going to refer to the Crown as not the Government of Canada. The Crown, Her Majesty the Queen in Right of Canada, is a different entity from the Government of Canada.
The Haudenosaunee have a difficult time — and I have a difficult time — understanding the difference between Her Majesty the Queen in Right of Canada, the Governor-in-Council, and today I was just telling a story that I now know there’s another sovereign representative just down the hall here, which is the Black Rod. The Black Rod, which I did a quick bit of research on, is actually a representative of the sovereign. I found it somewhat ironic that I’m meeting today with the Senate, and I don’t see the Black Rod here. We don’t see a representative of the Crown.
As some of you might recall, during the height of the Idle No More movement, there was an insistence that the Prime Minister would not be the only person in the room having the discussion. They wanted other Crown and sovereign representatives in that room to have a discussion because the way that Canada has set itself up — whether it’s a strong fiction, it’s still there — the Prime Minister is not the sovereign nor the Crown. We’ve moved into this collapse of the role of the executive and the legislature in Canada, but we’ve also collapsed this idea of the Crown all into one person, the Prime Minister, who is only one minister. He’s only the Prime Minister. He’s supposed to be making decisions much more in a Haudenosaunee perspective based upon the input and consent of all of his ministers.
In any event, the Haudenosaunee perspective, from a historical framework, is this long treaty relationship dating back to the two-row wampum. The two-row wampum is somewhat ubiquitous within Indian country, and you’ll see it in different places. There’s actually one over here in Centre Block. They actually did a carving in Centre Block. The basic principle of the two-row wampum is that it’s a white background with two blue solid lines running through, and there’s usually three wampum in between. The agreement was that the Crown was going to stay in their boat and that their government was going to govern their people, and the Haudenosaunee would stay in their canoe and they would not attempt to colonize the settlers. That was the agreement that went on for decades, if not hundreds of years. And
We come forward today to the process that Canada is envisioning with respect to this quote/unquote new relationship. This new relationship is a relationship that undermines and denigrates sacred and solemn promises that were made vis-à-vis the two-row wampum.
I’m just going to go through the working group structure. As far as I can tell, these 10 principles on the new relationship were struck by a working group that was commissioned by the Prime Minister. This working group was structured and struck without any input or engagement, without any consultation. It absolutely frustrates me and astounds me that you can say that you’re going to start a new relationship with someone and not engage or consult with them on who is going to be steering the boat with respect to the relationship moving forward. It’s mind-boggling from the Indigenous perspective. I want to start a new relationship with you, and I’m going to unilaterally choose the people who are going to make a determination on what that relationship looks like.
The second issue is that this working group then comes up with these 10 principles. I have no evidence that has been given to me or that I’ve found through reasonably diligent research that these 10 principles were ever rolled out to anyone in an engagement or consultation process prior to their finalization.
So you’ve got a working group that’s been established and been appointed solely by the Prime Minister, and the working group has no relationship with the Crown. The working group then comes up with 10 principles that look to me — I’ve been a lawyer since 1996 and I’ve been doing negotiations and litigation with the Department of Justice in and around land claims for 20-plus years — like something that just came out of DOJ. This looks to me like the white paper was dusted off and someone got the thesaurus out and said, “We need some new words on how to reconstitute the municipalization of Indigenous people in Canada.”
I’m going to drop down to the fourth paragraph, and this is the first principle: “The Government of Canada recognizes that all relations with Indigenous peoples need to be based on the recognition and implementation of their right to self-determination, including the inherent right of self-government.”
I’m here to say that this is a falsehood approaching a lie. The Government of Canada wants to begin a new relationship by saying something that is a falsehood approaching a lie. The reason I say that is because they talk about the United Nations Declaration on the Rights of Indigenous Peoples, and then they go on to say, “Canada’s constitutional legal order recognizes the reality that Indigenous peoples’ ancestors owned and governed the lands which now constitute Canada prior to the Crown’s assertion of sovereignty.”
How did the Crown get to assert sovereignty? If you’re going to have a nation-to-nation relationship, how does one group get to say, “We’re sovereign and you’re not?” That’s racism. One group has rights, power and control that they get to exert over another, regardless of what the other thinks about it. The Haudenosaunee have never agreed to this. Never have the Haudenosaunee said, “I give you the right to colonize me and turn me into a Canadian.” When did this happen? How did this happen?
This is what the Government of Canada does when they come up with these well-meaning principles. They perpetuate a falsehood and a lie.
In the 1780s, when the Haudenosaunee came north to what is now Canada, after the American Revolution, the group that had come up settled at two different places primarily. There had already been a significant Haudenosaunee presence in Ottawa and Montreal. One was Tyendinaga, where I’m from, and one was Six Nations, near Brantford. They came up with something in the range of 265,000 British pounds. My numbers might be off here. I’ve never let detailed facts get in the way of a good story, but the essence is true.
The Crown said to Joseph Brant, “We’re going to take the monies that you have and we’re going to put them in a trust fund. The money that’s coming off of your land, we’re going to lease out your land and sell some of your land and it’s going to go into a trust fund.”
Joseph Brant said to them, “That’s excellent. That’s a great idea. We should put this in trust for the benefit of the Haudenosaunee people. I would like to be a trustee. I want to be a trustee.”
And they put up their hands and said, “Oh, no, you are not a British subject.” Joseph Brant was not a British subject by the acknowledgment of the British Crown.
So my question is: How and when do Indigenous people become British subjects? How do they become Canadian citizens? When did this happen? How did this happen? More importantly, if I hold up the two-row wampum, or if the Cree hold up any number of their treaties, or if any of the Indigenous people in Canada hold up their relationship and their original treaties with the Crown, none of them make them subjects of the Crown.
So I hold up my two-row treaty and say, “You know what, I’ve just read through your principles on a new relationship. The principle that you claim to have sovereignty over me impairs, interferes and otherwise infringes my right to self-determination, which is memorialized in the two-row wampum. So explain to me how and when you reserved to yourself the unilateral right in a colonial manner to tell me that I have to be you.” It’s the ultimate insult.
Number two, the Government of Canada recognizes that reconciliation is a fundamental purpose of section 35 of the Constitution Act, 1982. Again, a falsehood. Section 35 was originally supposed to be an open box. I trust some of you have heard the open box, closed box theories about who has to prove what a right is and who doesn’t have to prove what a right is. It still boggles my mind that as soon as the British Crown arrives in North America, suddenly, as an Indigenous person, I have to prove that I have a right to them. I don’t understand why the onus isn’t reversed, why they don’t have to say they have a right. But in the mists of time somewhere, there’s some doctrine of discovery that they are relying upon — sorry to get off track — and where is the doctrine of discovery mentioned in this new relationship? It’s not.
They say in the first item that Canadian sovereignty is a given. Why? Canadian sovereignty is premised on the doctrine of discovery. The doctrine of discovery is premised on the idea of terra nullius. Terra nullius is premised on the idea that Indigenous people don’t have souls and aren’t people. So the only way Canada can maintain its sovereignty is to maintain the legal fiction that I don’t have a soul, that I’m not a real person? That’s what’s going on. Anyway, sorry about that. I’m looking at the time, just to see how many times I have to go on a diatribe sidetrack.
Number two talks about reconciliation as a fundamental purpose of section 35. That’s what the Government of Canada wants section 35 to be. The Government of Canada wants section 35 to be about reconciliation. That’s not what section 35 says. The Supreme Court of Canada has inferred that reconciliation is one of the primary motivations or one of the primary directives informing an analysis on section 35, but that’s not what section 35 says. It simply says they’re going to recognize rights that are existing or that come along. The reason that they want to infuse this idea of reconciliation is because it denies to Indigenous people choice. It denies choice to Indigenous people to say, “You must reconcile yourself to Canadian sovereignty. You have no choice.”
We’re going to recognize rights, but we’re not going to recognize or address the underlying falsehoods that have gotten us to where we are, so we’re essentially building this new relationship on something that is a fiction, in its most innocuous — and if I was skeptical and bitter and jaded after 20 years of doing this, I would say it’s a purposeful lie.
When they say that the Government of Canada — this is number three — recognizes that the honour of the Crown guides the conduct of the Crown and all of its dealings with Indigenous peoples. This is not a new relationship. This is a cut and paste from the Supreme Court of Canada. This is DOJ apparatchiks cutting and pasting something from the Supreme Court of Canada that is, in my opinion, empty and meaningless words.
The Government of Canada recognizes that it must uphold the honour of the Crown, which requires the federal government and its departments, agencies and officials to act with honour, integrity, good faith and fairness, while we pick the working group that’s going to decide all these issues. How the heck do you get to honour, integrity, good faith and fairness when the Government of Canada says, “We’re going to decide who is on the working group that is going to come up with the answers and the solutions.” It’s ridiculous. It’s farcical.
Number four is that the Government of Canada recognizes that Indigenous self-government is part of Canada’s evolving system of cooperative federalism and distinct orders of government. I’m going to repeat that: “. . . the Government of Canada recognizes that Indigenous self-government is part of Canada’s evolving system of cooperative federalism and distinct . . . .” This one sentence on this principle encapsulates Canada’s new passive-aggressive approach to colonization. We’re going to recognize that you have a right to self-government, but it’s ours. It’s Canada’s. It’s not your right. So I’m going to say to you, in government speak, that I am going to recognize your right to self-government as part of Canada.
I have taken any number of choices off the table for you, as an Indigenous people, to actualize your aspirations, individually, clan, nations and confederacies. I’m going to remove your ability to self-actualize as an individual. I’m going to remove your ability to self-actualize as a clan. I’m going to remove your ability to self-actualize as a nation and/or as a confederacy. And regardless of what you decide that you want based upon government structures that have existed since time immemorial, I’m going to say you’re now part of us. That’s not honest. That’s not fair. That’s not equitable and it’s not justified. Where is the justification for this?
Number five: The Government of Canada recognizes that treaties, agreements and other constructive arrangements between Indigenous peoples and the Crown have been and are intended to be acts of reconciliation based on mutual recognition and respect.
That’s not true. That is simply not true. The two-row wampum isn’t about reconciliation. It’s not about the Haudenosaunee reconciling themselves to Canadian sovereignty. The Nanfan Treaty of 1701 was not about the Haudenosaunee reconciling themselves to Canadian sovereignty. There is a famous quote after the 1701 negotiations, and it concludes — and this is the 1701 of Port Alberni. At the same time, contemporaneously, the Haudenosaunee were negotiating a treaty of peace in Montreal. With respect to the British negotiations, the British representative steps forward and says, “If you think that the Haudenosaunee surrendered anything or agreed to British sovereignty, you better have a good army at your back.” That’s what the Crown understood and recognized. So what happened?
Number six: The Government of Canada recognizes that meaningful engagement with Indigenous peoples aims to secure their free, prior and informed consent when Canada proposes to take actions which impact them and their rights, including their lands, territories and resources. This is reciting much of the language that comes out of the United Nations Declaration on the Rights of Indigenous Peoples.
It’s important to recognize how they fudged — sorry for using such a technical, legal term — the UNDRIP and the idea of consent that the Supreme Court of Canada articulates in the case of Delgamuukw. The Supreme Court of Canada, in Delgamuukw, contemplate veto power to First Nations, so you actually have to get their consent. What the Government of Canada is doing with these fudgey words is saying, “We’re aiming.” Aims to secure. What does that mean? We aim to secure, which means we don’t have to secure it. I do not have to obtain your consent if I’m just aiming for it because maybe I’m playing lawn darts. I’m getting close, but not that close. I gave some perfunctory words about trying to get your consent, but I never took it seriously. That’s exactly what just occurred with Trans Mountain.
The Chair: Mr. Detlor, if you wouldn’t mind, we have scheduled an hour for this part of the session. You’ve done an excellent job of going through the 10 principles. If you could wrap up in a few moments, we could have questions from the senators.
Mr. Detlor: Understood and agreed.
I want to go back to Canada’s inability to structurally reframe a relationship that actually honours the Crown by articulating, at some level, who or what the Crown is, in the context of there actually being a Crown here.
In other jurisdictions around the world, you will see they have carve-outs for Indigenous people. There are carve-outs within legislatures. I just got back from Colombia, and they’ve actually carved out a number of seats for the FARC rebels and they have said, “You are going to get a set number of seats in the legislative.” In Maine, in their state government, they have carve-outs for thePenobscot. In New Zealand, they have carve-outs on a legislative basis to ensure that there is representation.
In Canada, we don’t have any of those carve-outs, and I’m not certain at least the Haudenosaunee would appreciate a legislative carve-out, but there is the opportunity to have a Governor General carve out. The Governor General needs to step up and understand that the idea of “on the advice and consent of the ministers” doesn’t absolve the Governor General of upholding the honour of the Crown. Once you get the Governor General, with the consented advice of his or her ministers, understanding that their role is to frame the relationship, you will solve most, if not all, of these problems.
Governments come and go. Indigenous people don’t. They have nowhere else to go. It’s their land. They’re tied, inextricably and spiritually, to the land. They can’t come and go and they’re not going to form a new government. The permanence of the Governor General’s role is to have a relationship with Indigenous people that can then flow down to the government, instead of the tail wagging the dog as it is now.
Thank you for accepting my evidence and listening.
The Chair: Thank you very much.
Senator Doyle: Thank you for your presentation.
I was interested in the last part of your presentation. You didn’t have time to expand on it as much as I would have liked to have seen you expand on it, but your website is connected to it as well. You said on your website that you want to have an economy that will be culturally appropriate, environmentally sustainable and not injurious to your people and your neighbours. Could you expand on that, and maybe you could tell us a little bit more about what kind of venture would, and possibly would not, meet that kind of criteria and be culturally appropriate? Can you expand a little bit more on that for me?
Mr. Detlor: Of course, senator. Thank you for the question. On the cultural side, we have the Great Law, but we have something called the Ohen:ton Karihwatehkwen, and it is usually what we open with. It’s not a prayer but it’s words of thanksgiving. What we do, when we start meetings, is we give thanks to all the people who have gathered. We give thanks to the mother earth, the grass, the fish, and we work our way up through all of the beings up to the celestial beings. From a cultural perspective, when I say culturally appropriate, it has to understand that we are part of a system that is intertwined and interconnected and doesn’t give us the right to necessarily impose development types of projects without properly regarding all of those different entities as equals. That’s the cultural shift, or it’s a bit of a cultural paradigm versus a developer who comes in and says, “I have a permit from the municipality; I therefore can build.”The Haudenosaunee cultural perspective is that the trees have as many rights as I do, and how are the trees going to feel about this? Et cetera, et cetera.
What we do has been primarily in the area of renewable energy, some pipeline stuff and housing developments. We have looked at ways to modify the existing statutory and regulatory framework so that we can infuse our general beliefs into that system. The reason that happened is because of this whole consultation framework. The difficulty from my perspective on the ground doing this for 10 years and doing impact benefit agreements — I really don’t like that term but it’s the term that’s out there — is that the Government of Canada has left everyone in the lurch in terms of who has what roles and responsibilities vis-à-vis engagement and consultation.
Senator Doyle: So a mining operation or a pipeline could be culturally adaptable to the people and the land. You mentioned Trans Mountain and what have you. What kind of a system do we need to adequately come together with the Indigenous people in talking about these issues like Trans Mountain and trying to come to some middle ground on approval or disapproval, if necessary?
Mr. Detlor: I think you have to take seriously and meaningfully the right of someone to say no. If you and I are in a relationship and I get to say to you every single time, “I’ll take what your concerns are but it’s always going to be my way,” then that’s going to build up some resistance in you over time. You will likely get a little irritated. What happens is that you begin to lose track of the substantive issue of the goodness of any particular project. You have so much pent-up angst over the fact that I just told you it’s going to be my way.
If I say to you, “Listen, I’m going to give you the right to say no,” then you will likely not exercise that right very often. You’ll sit down with me in a much more comfortable position, much more prepared to engage and much more confident about your ability to articulate your needs and desires. If I continue to say, “No, you can’t,” that’s the problem. The Canadian government doesn’t take the idea seriously that an Indigenous group can say no. Some of them will say yes.
On the pipeline, maybe you move the pipeline. If I said to you, “I want to run something through your backyard,” and you tell me no, and then I say, “Well, your neighbours over here don’t seem to mind,” then you might say to me, “Well, run the whole thing through there.” That’s not what’s on the table, this idea of respect and respecting your ability to say no.
Sorry, senator, for that long-winded answer.
Senator Tannas: Thank you for being here.
The Haudenosaunee, which you mentioned and which I understand, have a large population in the United States, in addition to Canada.
Mr. Detlor: Correct.
Senator Tannas: How is it going in the U.S.? Is it different? Should we look to the Haudenosaunee’s relationship with the United States as something that we in Canada should aspire to?
Mr. Detlor: Can I give you a yes and no answer?
Senator Tannas: Sure.
Mr. Detlor: Yes to the extent that they have something in the United States that’s referred to as domestic dependent sovereignty. This is not just with the Haudenosaunee. This goes back to something called the Marshall trilogy. Chief Justice Marshall in the United States came up with three cases, and, of course, I’m on the spot and can’t mention them all now. One of them was Worcester v. Georgia. What he articulated at that time was that state governments didn’t have any ability to impair, infringe upon or legislate vis-à-vis the Indian tribes of the United States. What that did in the United States is it removed one of the areas of uncertainty that continues to plague Indigenous peoples in Canada, and that issue is jurisdictional.
We ran through this in tobacco and we’re going to run into it in cannabis. Who has jurisdiction to legislate or regulate vis-à-vis Indians on a reserve, particularly where there is a treaty context that says my relationship is with the Crown? Now the province is saying, “We’re the Crown.” So that’s the issue that they got right in the United States. They have one basis of contact between the tribes and the Crown, and it’s not the states and it’s not municipalities. It’s the executive branch. That’s the thing they got right down there that Canada hasn’t really gotten around to.
Section 88 of the Indian Act is part of the big problem in this regard, because it imports provincial laws of general application that don’t otherwise interfere or contradict the Indian Act or treaties, so what Canada did was they said we’re going to give all this opportunity to the province to legislate. It’s a nightmare. It’s a mess.
That’s what the States did right. What I wouldn’t like to see in terms of the relationship there is the aggressive idea of manifest destiny that informs much of the discourse there. Canada avoided some of that, but that is a problem there.
They have never really taken seriously what the Crown articulated in the Royal Proclamation of 1763, that you couldn’t take up Indian lands. That didn’t happen down there. They expropriated the heck out of the Indians down there and, to the British Crown’s credit, they didn’t do that. Now, the sceptic in me would say the British Crown certainly didn’t do that because the British Crown would have gotten something handed to them if they had even tried because they didn’t have the relative power.
Senator, I hope that answers your question.
Senator Tannas: In the U.S., just so I understand, would it be fair to say that part of the reason that the system works in the U.S., to the extent that it does, is that lands are defined as opposed to territories and so on? Is that part of it, that the land that is under the jurisdiction is not some kind of territory that might overlap with somebody else’s territory and so on like we have in B.C.? It is an actual defined piece of land. Am I understanding that right?
Mr. Detlor: I would have to respectfully disagree with you, senator. There is still significant overlap in the States, but I think you sort of hit on it. It’s not necessarily the lands that are defined; it’s the jurisdiction that’s defined. If, for instance, a nation in California or Nevada says, “This is our reservation,” that’s clearly defined. They still have their traditional territory, but they’re more focused on the jurisdictional impact of what the state may do on their reserve.
In many of the tribes in the United States, you have significant economic development. I’m not just talking about gaming and cigarettes. I’m talking about all different areas. The reason you have significant economic development in the States is because you have business certainty, because they know what jurisdictions are going to apply and what regulatory framework is going to apply. That’s one of the biggest problems here in Canada.
If you were going to give me one swipe at the Indian Act to take something out, it would be section 88 in a snap of my fingers.
Senator Tannas: That’s helpful. Thank you.
Senator McPhedran: Thank you very much for such clear and concise statements to us today.
You referenced the Trans Mountain pipeline, and it sounds like you watched some of the progress towards the bill that came out of the Senate. I wonder if you could say a little bit more. In some ways, I’m asking for your perspective of a revisioning of what should have happened. You may know that, on a number of occasions, by a number of the senators who supported the bill, reference was made and the rule of law was invoked as part of the support for the bill. You may also know that I raised concerns about the nature of that rule of law and took the position that it was really a colonial rule of law that was being invoked. I’d very much appreciate your thought and revisioning: What should have happened in relation to the Trans Mountain pipeline bill as it affects Indigenous peoples?
Mr. Detlor: Thank you, senator. I appreciate your question. I’m going to answer it in a little bit of a different way.
This goes back to the overarching issue: What is the legislative upstream obligation of the government to consult and engage prior to coming up with these bills?
We’re a regulator for the Haudenosaunee, so I have to maintain a bit of an agnostic perspective on projects. We don’t go in to look at a pipeline and say the pipeline is bad or the pipeline is good. We try and act fairly.
The issue with this bill and with this movement back is they’re simply re-colonizing a colonizing process that grew out of a colonizing process by failing to put the brakes on something and say, “Stop, what we need to do is fully engage with respect to how we’re trying to get this through.”
I believe they have agreed to do 20 or 22 weeks of re-envisioning what a relationship would look like, and that simply won’t work. They’re simply reconsolidating the dysfunction with the bill.
Senator McCallum: Thank you for your presentation. It was an eye-opener for me. I am one of the newer senators, and this is one area that I really need to work on, to understand and to make certain that I’m not making more problems than exist, so it was really good for me to hear your truths.
My question is: With the relationship to the Crown, how do you work with that? When you make your decisions, what happens? What is the connection with you, and who are you working with?
Mr. Detlor: The Haudenosaunee Development Institute is the administrative and regulatory arm of the Confederacy Chiefs Council, which is like a confederacy of 50 chiefs.
There have been some issues with stuff that’s going on with the border back and forth. We don’t think the border exists, quite frankly. It’s not my border. The Confederacy Chiefs will come to a decision, and what they usually do is write to the Governor General and say, “We trust this correspondence finds you in good health and good spirits. We have an issue that’s come between us with respect to border issues.” There is another treaty relationship that’s called the Silver Covenant Chain. “Pursuant to our treaty relationship with the Silver Covenant Chain, we’re giving this letter to indicate we have an issue and we would like to meet with you.”
What happens then is the Governor General then says, “Thank you for your letter. I’m going to refer it to the government.” Then there is this consternation about why the Governor General is referring us to the government, and the government refers it down to, at best, an assistant deputy minister, or ADM, level. Then what happens is you come to meet with one of the policy analysts who is assisting an ADM, and that policy analyst who is assisting the ADM says, “We also have to talk to the Ministry of Energy,” because this is another issue, and then they go to the Ministry of Energy and they say, “We also need to talk to Fisheries and Oceans.” So you have, at the best of times, two or three different policy analysts — through no fault of their own — who are assisting ADMs, and inevitably you get so frustrated and it gets so difficult to resolve the issue that, a lot of times, you give up.
But on the few where you stick it out and keep going and keep going and keep going, you might be lucky to get to the deputy minister. The issue that has arisen is that I spend 90 per cent of my time writing letters to deputy ministers and assistant deputy ministers, “Further to your decision of such and such a date . . .”
What the Government of Canada is training Indigenous people to do is that the only time you are going to get a resolution or an opportunity to resolve these issues is if it’s a big problem. So the disciplining effect of lack of meaningful response to these engagements is that you will see people get frustrated and they protest.
I hate to say this, but the only time that you get to the Crown is if a road gets blocked. That’s the history, whether it’s Oka, Caledonia, Ipperwash or Burnt Church. The only time that the Crown becomes involved is when there’s a threat of violence. And what does that say about a relationship? The relationship is only going to be fostered and advanced if there is a threat of violence.
Sorry for that convoluted answer.
Senator McCallum: What would be a recommendation where the Senate could help in this process with the Governor General?
Mr. Detlor: It’s my belief that the Governor General needs to hive himself or herself off. There needs to be some kind of ombudsman-type role with the Governor General.
It’s a happy coincidence that I was looking at the Black Rod today, that picture of that silly old man with a sword, but that’s the type of structural and institutional change that needs to occur to get a new relation off on a good foot. What’s the institutional and structural change that’s going to occur and is going to foster this new relationship? You can’t say, “I’m going to have a new relationship with you.” We can work at it, but they’re putting the cart before the horse because there is nothing institutionally or structurally there that’s going to survive this government, that government or the next. So you’re simply going around in this never ending Kafkaesque circle of dispute, mediation, attempt to resolve. Go back to Oka. I think that’s 30-plus years now and it’s still not resolved.
My recommendation is that the Governor General role becomes revitalized and that there is a body within that entity, as a representative of the Crown, that does honour and respect to the relationships with Indigenous people of Canada. Certainly if you can have a person who is the Black Rod, who gets to show up in Parliament and bang three times on the door with the base of the Black Rod before the sergeant-at-arms lets them in, if you can have that kind of procedure and ceremony internally, then you can do that with First Nations.
Senator McCallum: Thank you.
The Chair: I would like to ask a supplementary question. We’ve heard a lot about this relationship between First Nations and the Crown, particularly when we were travelling to Alberta. We heard it very clearly. From what I could gather, it seems like most officials in the government don’t seem to understand the importance of the role of the Governor General. Do you know of any country where the Governor General has assumed that kind of role, or do you know of any structure that’s been proposed as a model that could make this sort of relationship function as you see it?
Mr. Detlor: The short answer is no. The long answer is yes. All we need to do is look historically. Prior to the Indian Act in the 1860s, at the very beginning, the relationship with the Crown was conducted by the military within North America and then it got moved over. The Board of Trade of Commissioners and Plantations was the Crown representative in the colonies, and historically, they took onto themselves the role of engaging meaningfully with First Nations. So in a modern-day context, the answer is no. But you have small examples of participating in the legislative branch, not necessarily the sovereign branch. But certainly in the history of the relationships between the British Crown and Indigenous people, there are examples of how the Governor General took on this role or prior to the Governor General, the Board of Commissioners and Plantations did the same. Sorry for not having enough. I will undertake to do an inquiry and reply if I find anything.
The Chair: Thank you very much.
Senator Patterson: Thank you, Mr. Detlor, for your presentation and your analysis of the principles set out by Canada to govern a new relationship. I’d like to get your comments on the next step that Canada took following those principles, and that was the launch — I believe it was in February of this year — of a recognition and implementation of an Indigenous rights framework.
As I understand it, that initiative, which was launched by the Prime Minister, aims at legislation to anchor Canada’s relationship with First Nations, Inuit and Metis, and it would deal with recognition of rights but also recognition of Indigenous governments. I think it flowed from the 10 principles. The announcement that the government made was that there would be a framework introduced this current year, in 2018, and it would be implemented in legislation before October 2019. I know there have been significant engagements led by the Minister of Crown-Indigenous Relations over the past year, significant efforts at engagement.
Could you comment on how that is going and if you have any thoughts about whether the promised legislation could deal with, in a progressive way, some of these issues that we’ve discussed this morning?
Mr. Detlor: Thank you, senator, for the question.
After the announcement was made in February, a number of Haudenosaunee representatives came up to speak to members of government about what this new framework was going to look like, and we asked to participate. We met with the Department of Justice, we met with a number of entities, and we never heard from them again. The reason we never heard from them again is because they and the framework indicate that they’re only dealing with band governments. This engagement process that’s going on is only being undertaken with political territorial organizations and with band entities. The Haudenosaunee do not acknowledge that any kind of band, Indian Act entity, is capable of representing their interest as a confederacy or a nation. That’s the technical part.
The engagement is cursory, to say the least, because much of the engagement that has been done, in my opinion, has been done in a non-transparent and non-accountable fashion with political territorial organizations that do not hold treaty or Aboriginal rights. That’s my initial statement.
Certainly there is room in reworking a legislative framework to accommodate these issues, but I will ask a question back to you, senator. Why would anyone suggest that the resolution of dealing with my right to self-determination needs to be articulated in legislation that you pass? If I’m self-determining, why wouldn’t I pass my own legislation and you adopt it? That’s the fundamental issue here. They’re trying to do heart surgery with Band-Aids, and they have Band-Aid after Band-Aid piled up on top without addressing fundamentally the issue of relationship. Why would I get to legislate to you about your self-determination?
I moved to a small town recently, and one of the senior ministers involved in this process lives in this small town and I’ve had the opportunity to speak to her about it.
I do believe good intentions are driving this in some way, but the good intentions driving this legislation are really more about service delivery. I read the auditor’s report that was provided to the Senate. One of the prime motivators here is to increase the efficacy and efficiency of service delivery to First Nations peoples. I do believe there’s a sincere attempt to do that. The difficulty is that the legislation that’s being contemplated is conflating this idea of relationship with service delivery. What they’re really looking to do with this new legislation is to harmonize and aggregate groups of Indigenous peoples so they can come up with service delivery models. That’s really what is fuelling a lot of this, because the government is looking in terms of the auditor’s report on a results-based process to say, “We want to deliver more services in a better way to more people.” That’s a laudable goal, but to use the legislation on relationship to get there is putting things backwards, in my respectful opinion.
Senator Patterson: Thank you very much. You asked me a question, which I should try to maybe dodge. We have seen, in the Senate, a bill introduced by former Senator Gerry St. Germain, which actually purported to give Aboriginal peoples the right to develop their own constitutions and laws. I think, in the course of this study, we should dust off that bill and take a look at it.
Mr. Detlor: I would greatly appreciate that. I went to law school, and one of the things I remember is something that made no sense to me. It’s called the nemo dat quod non habet principle: You can’t give what you don’t have. It’s a maxim that informs much of the Canadian legal processes, from commercial law and constitutional law. It actually goes on a little longer, but you can’t give what you don’t have.
I desperately wish that the Government of Canada would come to grips with that in terms of its legislative approach. You can’t give someone self-government. It’s not yours.
Senator Patterson: Thank you.
Senator McPhedran: I want to get your response to two aspects of what is now before the Senate in Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples. Within that, I have a second question picking up on your description at the beginning of your presentation, Mr. Detlor, where you referenced the significance of the role of clan mothers in governance.
My general query is whether there were any comments you would like to make on Bill C-262, which will come up for discussion and decision by us as members of the Senate.
Regarding my aspect of that around clan mothers, I’d like to share that, over the summer, a member of my team was doing some research with clan mothers in a number of locations. It’s tentative. We’re not at the point yet of reaching any firm conclusions, but I was really struck by some of the feedback in those interviews where clan mothers were indicating that in some cases — and it’s not in relation to your particular governance, I should clarify — clan mothers welcome an increased reference to and deference to them as leaders and their role, but they are raising concerns about the implementation in the actual day-to-day governance.
If you have any comment or observation on that, I would certainly welcome it.
Mr. Detlor: On Bill C-262, first off, I’m going to make some comments that might sound counter-intuitive to my earlier positions because there’s a lot of positive movement in the United Nations Declaration on the Rights of Indigenous Peoples, if it’s taken seriously.
However, as an Indigenous nation, why are you putting me at the back of the bus? I don’t want to be UNDRIP. I want a seat at the General Assembly. Even if UNDRIP was passed in its entirety, it is discriminatory and racist because it accepts the Westphalian system of nation states that says that Indigenous people do not get a place at the table. “We are going to recognize your right to not be a full partner in an international setting.”
I know that’s a little bit counter-intuitive to some of the discussions we’ve had about the benefits that would derive from article 18 in particular of UNDRIP, which basically says that First Nations get to choose their own governments.
Madam Chair, I understand. I’m available and I have more time, but I don’t want to impose upon the Senate.
Article 18 says:
Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own Indigenous decision-making institutions.
That’s all well and good, and if that got implemented I would be very happy, but it still doesn’t give me the ability to talk to my representative who is a member of the General Assembly.
As well, if you take seriously what article 18 says, I get to choose my government, and I don’t know if I necessarily would choose Canada. Maybe I do. Maybe I don’t. The Government of Canada doesn’t appear to be open-minded, fair and honest about the discussions that flow from things like article 18.
It’s ironic that we’re seeing the emergence of a post-liberal democratic government framework. By that I mean we have this new rise of nationalism and tribalism that is a post-liberal emergence of these different tribes, and as Indigenous people, we get that. We understand that. I don’t agree with it. I don’t agree with the policies and politics, but the inability of the Westphalian system post-World War II to come to grips with people’s ability to identify is what’s fuelling a lot of this. As Indigenous people with our structures in government, we know we have the answers to these problems. It goes back to what I said earlier: you have to give people the ability to know that they’re being heard and that they have a say.
There is an increasing corporate influence. I’ve been doing this for 20 years so I know how things work. I know how Members of Parliament make decisions, I know how MPPs make decisions and I know how municipal governments make decisions. They don’t make decisions after talking to Indigenous people. They make decisions based upon who is giving them money. So let’s just say it: They make decisions based upon who is giving them money to get elected. So all of this stuff that’s been written down, all of these fancy words and these laudable goals and aspirations, I’ll say it again, it’s farcical in the face of what’s really going on.
This goes to the issue of clan mothers, because the framework of clan mothers is often one that has a broader generational view. Until you support broader generational views, institutionally and structurally, you’re going to have trouble getting them to come forward to participate because their primary concern — I’m speaking generalities and I apologize because it’s not always true. But when you have short-term decision-making that’s often fuelled by men and money, that’s diametrically opposed to what many clan mothers tell me are their motivators in terms of decision-making.
Structurally, how do clan mothers, and/or women, for that sake — how do the institutions provide support for women to participate in governance? Take, for instance, Question Period. If a clan mother or a woman wants to participate in Question Period, the role is for one side to get up and say something and the other side to stand up and yell at them. I learned the other day that the distance between the two bodies is actually two sword lengths. So they couldn’t quite get you. I don’t know any women who talk like that to each other. I just don’t know. Sometimes my mother does to me, very much still. A Haudenosaunee mother is like a little angel sitting on your shoulder that never goes away, thank goodness.
Again turning back to structural, I’m not suggesting that you necessarily rewrite the parliamentary rules of order, but there has to be some way to start to have a broader imagination about what a new relationship looks like. Going back to the framework and going back to the principles, it has had its imagination neutered. There’s no sense of wonderment. There’s no sense of discovery. There’s no sense of anticipation or of excitement. These things that the Government of Canada is doing aren’t opening up the idea of the promise of a new and better future. What they’re doing is saying, “We’re going to rest our platform on the cold hard table of the past,” and there’s not much room for women or clan mothers in that system.
The Chair: Thank you very much. On behalf of the members of the committee, I would like to thank Mr. Aaron Detlor for his testimony this morning. You gave us some very good recommendations that we will record. I, in particular, was struck by your relationship with the Governor General. We have heard about the relationship of various First Nations with the Governor General and a desire for that, so I was very much interested to hear that you have that relationship and that you would like to see it improved and have a better structure in place so that it’s formally recognized.
(The committee adjourned.)