Minutes of Proceedings and Evidence of the Special Committee on Indian Self-Government, 32nd Parl, 1st Sess, No 3 (19 January 1983)
By: Canada (Parliament)
Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Committee on Indian Self-Government, 32nd Parl, 1st Sess, No 3 (19 January 1983).
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HOUSE OF COMMONS
Issue No. 3
Wednesday, January 19, 1983
Chairman: Mr. Keith Penner
Minutes of Proceedings and Evidence
of the Special Committee on
The status, development and responsibilities of Band
governments on Indian reserves, as well as the financial
relationships between the Government of Canada and
(See back cover)
First Session of the
Thirty-second Parliament, 1980-81-82-83
SPECIAL COMMITTEE ON
Chairman: Mr. Keith Penner
Vice-Chairman: Mr. Stan Schellenberger
Clerk of the Special Committee
MINUTES OF PROCEEDINGS
WEDNESDAY, JANUARY 19, 1983
The Special Committee on Indian Self-Government met in Winnipeg, Manitoba at 9:55 o’clock a.m., this day, the Chairman, Mr. Penner, presiding.
Members of the Committee present: Messrs. Allmand, Chénier, Manly, Oberle, Penner and Schellenberger.
Ex-officio member present: From the Assembly of First Nations: Ms. Roberta Jamieson.
Liaison member present: From the Native Women’s Jssociation of Canada: Ms. Marlyn Kane.
In attendance: From the Research Branch of the Library of Parliament: Mrs. Barbara Reynolds and Mrs. Katharine Dunkley, Research Officers. From the Parliamentary Centre for Foreign Affairs and Foreign Trade: Mr. P.C. Dobell, Policy Co-ordinator.
Witnesses: From the Manitoba Indian Education Association: Mr. Bill Thomas, Chairman of the Board. From the Indian Women’s Council of Manitoba: Ms. Maria Flett, President; Ms. Lynda Neckoway, Co-ordinator North Region; Ms Donna Fontaine, Co-ordinator South Region and Mr. Ken Young, Legal Advisor.
The Committee resumed consideration of its Order of Reference dated Wednesday, December 22, 1982. (See Minutes of Proceedings, Wednesday, December 22, 1982, Issue No. 1.)
Mr. Chairman made a statement.
It was agreed that the two documents entitled “Pequis School Board—Pequis Band Education Authority—Pequis Band of Indians” and “A position paper on Funding for locally-controlled schools in Manitoba” tabled with the Committee, by the Manitoba Indian Education Association Inc. on Wednesday, January 19, 1983 be filed as an exhibit with the Clerk of the Committee. (“Exhibit-B”)
Mr. Thomas, from the Manitoba Indian Education Association Inc., made a statement and answered questions.
Ms. Flett, Neckoway and Fontaine, from the Indian Women’s Council of Manitoba each made a statement and, with Mr. Young, answered questions.
At 12:02 o’clock p.m., the Committee adjourned until 1:30 o’clock p.m., this afternoon.
The Special Committee on Indian Self-Government met in Winnipeg, Manitoba at 2:00 o’clock p.m., the Chairman, Mr. Penner, presiding.
Members of the Committee present: Messrs. Allmand, Chénier, Manly, Oberle, Penner and Schellenberger.
Ex-officio member present: From the Assembly of First Nations: Ms. Roberta Jamieson.
Liaison member present: From the Native Women’s Association of Canada: Ms. Marlyn Kane.
In attendance: From the Research Branch of the Library of Parliament: Mrs. Barbara Reynolds and Mrs. Katharine Dunkley, Research Officers. From the Parliamentary Centre for Foreign Affairs and Foreign Trade: Mr. P.C. Dobell, Policy Co-ordinator.
Witnesses: From the Joint Council of Chiefs and the All- Chiefs’ Budget Committee of the Assembly of Manitoba Chiefs: Chief Ernie Daniels, Vice-Chief, Prairie Region Assembly of First Nations; Chief Charlie Constant, Pas Band; Chief Harvey Nepinak, Waterhen Band; Chief Joe Guy Wood, Ste. Theresa Point Band; Chief Jim Bear, Brokenhead Band; Mr. Ovide Mercredi, Legal Counsel; Mr. Joy Kaufman, Policy Consultant and Mr. Murray Sinclair, Legal Counsel. From the Brotherhood of Indian Nations: Mr. Larry Amos, Tribal Administrator; Chief Raymond Swan, Lake Manitoba Band; Chief Edward Anderson, Fairford Band; Chief Louis J. Stevenson, Pequis Band; Mr. Robert Daniels, Co-ordinator, Anichinaabe Child and Family Services and Mr. Carol Hurd, Senior Legal Advisor. From the Greater Winnipeg Indian Council: Mr. Roy Cantin, Acting Headman; Mr. Conrad Spence, Advisor; Ms. Joyce Spence, Advisor, Winnipeg Indian Child Care Services; Ms. Jean Courchene, President, Urban Indian Womens’ Association; Mr. Melvin Fontaine, Off-Reserve Indian.
The Committee resumed consideration of its Order of Reference dated Wednesday, December 22, 1982. (See Minutes of Proceedings, Wednesday, December 22, 1982, Issue No. 1.)
Chief Daniels made a statement. Chief Longclaws, Elder, Waywayseecappo Band, opened the hearings with a prayer.
Chiefs Daniels, Constant, Nepinak, Wood and Bear, from the Joint Council of Chiefs and All-Chiefs’ Budget Committee of the Assembly of Manitoba Chiefs each made a statement.
At 3:13 o’clock p.m., the sitting was suspended. At 3:33 o’clock p.m., the sitting resumed.
It was agreed that the following documents tabled before the Special Committee of the House of Commons on Indian Self- Government by the Joint Council of Chiefs and All-Chiefs’ Budget Committee of the Assembly of Manitoba Chiefs on Wednesday, January 19, 1983, in Winnipeg, be filed as an exhibit with the Clerk of the Committee: (“Exhibit-C”)
1) Political Accord between Manitoba Keewatinowi Okimakanak and the First Nations Confederacy
2) Terms of Reference of All-Chiefs’ Budget Committee
3) DIAND Manitoba Region Operational Plan Highlights 1983/84—1986/87
4) A Preliminary Assessment of the Impact of the DIAND Budget Guidelines, 1983/84—l986/87
5) Draft Memorandum of Undertaking between ACBC, AFN & Minister of Indian Affairs
6) Chronology of Major Events: The Manitoba/AFN Initiative on Budgetary Reform
7) Draft Memorandum of Understanding with Minister of Indian Affairs (Dated January 12, 1983)
8) Memorandum of Undertaking between All-Chiefs’ Budget Committee and the Province of Manitoba.
At 5:33 o’clock p.m., the sitting was suspended. At 5:39 o’clock p.m., the sitting resumed.
Mr. Amos, Chiefs Swan, Anderson, Stevenson and Mr. R. Daniels, from the Brotherhood of Indian Nations, each made a statement and with Mr. Hurd, answered questions.
It was agreed that the parts of the document entitled “Statement to the Sub-committee on Indian Self-Government of the House of Commons Standing Committee on Indian Affairs, by the Brotherhood of Indian Nations, Winnipeg, January 19, 1983” which were not read, be deemed to have been read into the record.
At 7:53 o’clock p.m., the sitting was suspended. At 7:57 o’clock p.m., the sitting resumed.
The witnesses from the Greater Winnipeg Indian Council each made a statement and answered questions.
It was agreed that the following documents tabled by the Greater Winnipeg Indian Council be printed as appendices to this day’s Minutes of Proceedings and Evidence:
1) A letter to Mr. Frank Courchene from Mr. B.J. Veinot, Regional Director General, Indian and Inuit Affairs, Manitoba Region of the Department of Indian and Northern Affairs, dated September 28, 1982. (See Appendix “SEND-4″)
2) The “Resolution on the proposed political structure for the Bands in Southern Manitoba and the Greater Winnipeg Indian Council” of the All-Chiefs Conference, July 8, 1982. (See Appendix “SEND-5”)
At 8:59 o’clock p.m., the Committee adjourned to the call of the Chair.
Clerk of the Committee
(Recorded by Electronic Apparatus)
Wednesday, January 19, 1983
The Chairman: Good morning. The session of the Special Committee on Indian Self-Government is called to order.
This is our second day in the province of Manitoba. Yesterday, we had an instructive and enjoyable day at the Long Plain Reserve, where a large number of briefs were presented to us. A good deal of very useful information was presented to the committee.
This is a special committee of the Parliament of Canada, an all-party committee. Most of the members who serve on this special committee have a long association with Indian affairs, being also members of the Standing Committee on Indian Affairs and Northern Development. But in addition to that, we have also an ex officio member from the Assembly of First Nations, in the person of Ms Roberta Jamieson; and we have two liaison members on the special committee: Marlyn Kane from the Native Women’s Association of Canada, and also Mr. Clem Chartier from the Native Council of Canada. He was not able to be with us today, but he has been travelling with the committee until today and will be back with us again in the near future.
For our first witness today, we have the Manitoba Indian Education Association; we have a presentation to be made by Mr. W. C. Thomas.
Mr. Thomas, I notice there are two other documents here: the Peguis Central School story, and also a position paper on funding for locally controlled schools in Manitoba. Is it your wish these be filed with the committee as exhibits?
Mr. W. C. Thomas (Chairman of the Board, Manitoba Indian Education Association Incorporated): Yes, sir.
The Chairman: All right. Is it agreed, then, that they be listed in our proceedings as exhibits?
Some hon. Members: Agreed.
The Chairman: Thank you.
Mr. Thomas, we welcome you before the special committee. Would you like to proceed now and introduce your associate? Following the presentation, the members of the special committee would like to ask you some questions about it.
Mr. Thomas: Thank you very much, Mr. Penner.
Members of the committee, this is Edwin Bryere, who is in charge of special education with the Manitoba Indian Education Association. We were to have here Sharon T. Fidler, the local control development officer with the association, but she is not here yet.
I wish to read the second document and point out a few items in the larger document on funding. I will not take up too much of your time.
Mr. Chairman and members of the committee, on behalf of Indian education in Manitoba, I welcome the members of Parliament to Manitoba. May the Great Spirit guide us in our deliberations as we consider the future of education policy for the Indian people of Manitoba, if not for Canada.
As you continue your hearings on Indian self-government across this country, you will have heard and will be hearing many different recommendations as to how Indian government should be structured and funded. The important point to remember from all these different views is that the aspirations of all Indian people in Canada lead to the same conclusion: that of realizing self-determination through self-government.
To us, the exercise of self-government includes the exercise of authority over our own institutions.
In our case, we will deal only with education as a function of self-government and let our provincial organizations deal with the other aspects of self-government and its attendant implications.
The first is background. The Manitoba Indian Education Association is the education support system of Indian government in Manitoba. Initially known as the Manitoba Indian Education Board, it came into being as a direct result of an Indian education conference held in The Pas, Manitoba, on November 7, 8, and 9, 1978.
On December 3, 1978, the chiefs of Manitoba formally ratified the Manitoba Indian Education Board to provide the following:
1. Education information services for Indian people by providing, on a steady basis, understandable Indian education information to Manitoba Indians and designated education bodies within the reserves;
2. Indian education political power support by providing support and negotiating assistance to bands and organizations in Indian education;
3. Indian education awareness and organization by becoming the policy-making body in Indian education, deriving authority from the Indian people and chiefs of Manitoba;
4. Research and evaluation by looking to all aspects of education programs wherever Indian people attend such programs in Manitoba, and upon evaluation of such programs, recommend such action as to maximize the progress of Indian people in education.
The MIEA also has its roots even further back in the Manitoba position paper of 1971, called Wahbung, where the former MIB called for the establishment of a committee to ensure the necessary steps to implementing the process of local control were being taken.
The basic tenet of MIEA’s existence is the recognition of the authority of the chief and councils and is clearly stated as follows:
It is recongized that the chiefs of Manitoba represent their people in all matters relating to the reserve and specifically to education in terms of the Manitoba Indian Education Board.
Band education authorities also derive their authority over education from the local chief and council. The move by the Department of Indian Affairs to pressure Indian education authorities to incorporate is an invidious attempt to undermine the basic authority of band government and should be abolished.
Instead, the government should look to increasing the powers of council under Section 81 of the Indian Act to provide for the delegation of authority for education. If this is unworkable within the context of the Indian Act, then Section 114 of the Indian Act should be revised to legitimize the existence of band education authorities, and the Minister of Indian Affairs should be empowered to enter into agreements for band education with “the education authority of a band”.
If one were to look back at the process of Indian education, the boarding school era has been seen by the Indian people as an attempt by the Canadian government to impose a segre- gated Indian education system aimed at assimilation. The period where Indian children were bussed to nearby towns was seen as an attempt at forced integration. The present move toward local control is seen as a grassroots movement and is the only system that is not viewed as an “imposed system”. To take this away from the control of the council toward an incorporated school authority could again be looked upon as an “imposed system” and would seriously negate any progress that has been made for the past several years.
One must seriously consider that the chiefs and council of a band have been the only constant factor seen in Indian community development; and although the Indian Act and forces outside the reserve see band councils as being limited in jurisdictional authority, nevertheless, the people of the reserves have ascribed to band councils those powers of legislative authority that a provincial or federal government have, and these powers must now be institutionalized.
Whole administrative components of bands have taken delegated authority from the band council and this process must now be legally recognized. Therefore, it must be recog- nized that the band councils have all the force and authority of a government on a reserve. The fact that Indian people have re-ascertained themselves as sovereign nations is evidence of their confidence in band government.
Second is legal rights to education. Indian education rights are derived primarily and most forcefully through the treaty promises and subsequent federal legislative provisions implementing those promises. Typical of the promises is Treaty 1, which reads:
And further Her Majesty agrees to maintain a school on each reserve hereby made whenever the Indians of the reserve should desire it.
Along with other statements made in other treaties and with the interpretations of Alexander Morris as to the intent of the treaties, this statement forms the basis of present-day interpretations that education in all its comprehensive forms is a right of Indian people.
Indian people and the provincial governments have always maintained the education of Indian children is a federal responsibility. The provisions of Sections 114 to 121 of the Indian Act are seen as being the vehicle by which the federal government meets its obligation for the education of Indian people.
Insofar as the Public Schools Act of the Province of Manitoba provides for the education of all children in Section 41.(4) of the act, it has made no provision for the education of Indian children on reserves.
Indian people, then, see the federal government as the only body having full responsibility for the provision of education for the Indian child, but retain for themselves the right to determine the content and direction of that education.
Management of Indian education: The management of Indian education must be seen as a logical construct progressing from the management and direction of the local school to the management of complete education systems having all the checks, balances, and support of a school system outside the context of Indian reserves.
It is here that MIEA sees itself as a ministry of Indian education providing all the support systems necessary for the well-being of locally controlled schools. In order to achieve this, MIEA must be funded to provide the following services: (1) Superintendents to provide professional consulting and support services to band schools and to act as agents of quality control in education; (2) Curriculum development workers to respond to the need of locally controlled schools in providing educationally relevant material; (3) Education consultants to act as resources for teaching staff in the areas of language development, science, and mathematics; (4) Special education workers to act as consultants and resources to locally-based resource teachers; (5) Psychologists to respond to the needs of Indian children with problems and to provide an adequate testing program; (6) Nutritionists to act as resources to community-based home economics teachers; (7) Small schools Co-ordinator to assist small schools in arranging programing and compensating for the lack of physical facilities; (8) Management information services Co-ordinator to assist local
schools in management areas; (9) Diagnosticians to assist local schools in the diagnosis of special problems and at-risk children; (10) Physical education consultant to assist local schools in the setting up of physical education programs and helping schools without physical education facilities; (11) Librarian to assist in the development of a sound regional library program for Indian schools; (12) Special materials services officer to co-ordinate the flow of information on the special materials needed in the Indian schools; (13) Textbook analysts to adapt textbooks and other materials to the levels needed at local schools.
These are the services now needed over and above the present level of services provided if MIEA is to effectively act as an education support service to the locally controlled Indian education system.
The locally-controlled schools themselves are responsible for in-school instruction and are managed locally by school boards whose authority is delegated from the chief and council. The local schools cannot be expected to both develop material and provide instruction at the same time. Developed materials must come in from the outside and be used by in-school teachers.
One of the problems that have been encountered is that local school superintendents have been kept so busy in haggling over financing their local education systems that no time is left over for the development of appropriate education materials. Teaching staff cannot be expected to fulfil this role in education because they also do not have the time to take away from their roles as instructors.
Functions of Indian education: The whole Indian education system must be seen as a function of Indian government if it is to succeed and must take its authority from the local chief and council. As stated in the Wahbung, education is seen as a preparation for total living, and on reserves total living cannot exclude the authority of a chief and council. Education and culture are the ways in which Indian people see and learn about the world we live in. That world in the eyes of Indian people sees the chief and council as the sole government having authority over the education system.
To be effective, education must be viewed in its separate components of management, facilities, instruction process, curriculum development, education support services, counselling services, and finally its financing. The local school boards and their administrative staff are the management component of education systems. The school buildings and other buildings are the physical facilities components of the system. The in- classroom teaching staff are and should be the core of the education system known as the instruction component. The curriculum development component is a function of education outside the classroom sphere which feeds the instruction
process, and the education support services are those professional services already previously mentioned which support the instruction process. Counselling services are a direct service to the student body outside the instruction process and are used as support mechanisms above and beyond the instruction process. The adequate financing of all the above components is the major concern of Indian education authorities.
We submit our position paper on funding for locally-controlled schools documenting all of our concerns about funding education and its attendant recommendations.
One area of concern not included in our position paper is the rights to education of those Indian students who have moved off the reserve for economic reasons. Furthermore, in August 1982 the federal government unilaterally decided to terminate educational and financial assistance to off-reserve elementary and secondary school Indian students. This was viewed by the Indian people of Manitoba as an abrogation and denial of their treaty and aboriginal rights. It is further understood that the federal government is mandated by the treaties and obligated by aboriginal rights and negotiated joint policies between the Indian people and the federal government to provide education of all types and all levels to all status Indians living on and off the reserve. It does not stand to reason that Indian people who avail themselves of working opportunities off the reserve should be penalized against having the same rights in education as reserve-based residents.
One specific example of the problems in education financing is school transportation. When DIAND handled school financing it could tender for school transportation and accept the lowest tender even if that tender were higher than its budget allotments. In a locally controlled education system the band education authority cannot accept tenders for transportation which are in excess of its budget allotment for transportation as it does not have the authority to cover deficits in funding.
The present system of education funding does not lend itself to long-range education planning. Education, to be effective, must be planned on a continuum of learning. This continuum of learning in Indian schools is constantly disrupted because the financing of education in Indian schools is based on a year-to—year funding formula and education concerns must continually be subjected to the availability of funding. The learning cycles of the beginning years, grades one to three, and the middle years, grades four to six, are important years of child development and should not suffer from breaks in continuity in terms of program content and development.
Band education officials must plan for these learning cycles and should be availed of the opportunity to plan on the basis of
these cycles without fear that there would be interruptions because of funding breaks. Curricula must be planned and developed with a view to testing long-range effectiveness, and this cannot happen under the present system of funding. There should be reasonable certainty on the part of the band education officials that funding will be continued and that perhaps education agreements should not be year-to-year agreements but rather multi-year agreements with built-in provisions for special areas of concerns as they arise.
Successes in local control: Very briefly, I have put together some notes on the Peguis organization in education to at least give you some evidence that Indian people, in their attempts at taking over their schools, can achieve and have achieved a good measure of success in doing so. There are, of course, schools other than Peguis; but I knew that one intimately so I have used it as an example.
Peguis Indian Band—the Peguis Central School Story: In September 1977 the Peguis School Board, under authority from the Peguis chief and council, took over the operation of the Peguis Central School and all the other education services from the Department of Indian Affairs.
A study of the school and community had been completed in the spring of 1977 by outside consultants on behalf of chief and council which showed the state of affairs at Peguis in education under Indian Affairs. The purpose of the study was to ascertain just where the school stood in terms of quality in the overall operation and also to let the local authorities know just where they were starting in education.
Based on observations and recommendations in the study, the board began its work by hiring a superintendent, financial comptroller, clerical staff, and a new principal. Of the 24 Indian Affairs teachers, the board kept six. We were sorry we did keep the six, because most of our staff problems arose from former civil servants.
Since the takeover of the school, the following are some of the changes that have occurred:
In December 1976 we had an average percentage age-grade retardation of 56%; it has now been lowered to 30%. In 1977 there was one child who had failed grade one four times under the DIA administration. I might add that we do not have an age-grade retardation problem at all in grade one; it is zero.
In 1977 we started off with one class of grade nine pupils; we now have four classes of grade nines. This is due to the retention of students. Where we used to have students drop out in grades seven, eight, and nine, they are now staying in school.
Where DIA had three grade 12 graduates in 1977, we have increased these numbers to 14 and 15 on the average.
Where DIA had placed 14 students in post—secondary programs in 1977, in 1980 we had registered 175. We have continued a large number of placements and currently have approximately 100 students enrolled in vocational training or at the universities.
School attendance has gone from 60% to almost 90%, as can be seen from the enclosed statistics.
Parents day attendance has gone from an almost non-existent parental involvement at the school to up to 75% of parents coming to the school on parents day.
Where there was an unco-ordinated plethora of curricula and classroom texts, we now have a streamlined curriculum, basically Manitoba but with our own adaptations and developments for student progress.
Where there was no counselling for students, we now have a full-time counsellor and two full-time specialists to assist students who have personal and learning problems.
Where slow learners used to go to a “dummy” class, all students now attend classes with their peers and only leave their classes for special assistance.
Where discipline was an ongoing, unsolved problem we now have a system involving the school and parents who work to develop students. The numbers of students who have to be disciplined in matters other than slight misdemeanors is small.
I will not read the rest of that, but I will simply tell you that our school is one of many in Manitoba that is making good progress under the local authority. We are not doing anything stupendous or miraculous, we are simply running this school for our children through common sense by the board and community, as it should be. The days where the department, by proxy, tries to provide educational services under the guise of an unfeeling and uncaring bureaucracy, where all energies and loyalties must point to government, are long past. Indian people must be given the authority and dollars to do the job themselves.
Enclosed are some statistics which may be of some interest to you, and a piece out of the newspaper on the Peguis School.
The recommendations on the first paper which I read from are that on the basis of our collective experience in local control we recommend the following:
1. That the funding of Indian education be moved under one responsibility centre and one vote code in appropriations instead of the present system whose educational funding is transferred under as many as five responsibility centres and as much as six vote control codes.
2. That funding for school transportation be kept separate from other educational funding in order to respond to fluctuations and sharp increases in the petroleum and auto industries.
3. That education funding agreements should not be made to respond to Sections 26 and 27 of the Financial Administration Act but should be governed under separate financial regulations to be agreed upon.
4. That education agreements should be drawn up in such a way that band education authorities need not spend an inordinate amount of time in accounting for transferred funds.
5. That band education authorities should be accountable to the people through their chief and councils and that the minister meets his accountability for funds to Parliament through the mechanism of audits combined with qualitative reports on the prgress of education.
6. That the education section of Indian Affairs be given the legislative authority to act as the finance board of Indian education and that it be given thorough authority the flexibility to respond to the ever-changing demands of Indian educauon.
7. That an education commission be formed and empowered to act upon these recommendations.
I do not know how much time you have or how many sessions you have with people here, so I will leave it at that.
The third document, Funding for Locally Controlled Schools in Manitoba, which was developed in February 1982, has some serious and certainly worthwhile items in it which should be read and digested, and it indicates the problems we have in Indian education in Manitoba. I will just give you a for instance. On page 25 begins an outline which says A, B, C, D, E—the five schools or school authorities which got funding from Indian Affairs, and do get funding, and there are many items illustrated to show the funded items. But there seems to be no kind of formula or system whereby this funding takes place from the department. It seems to have been on the basis of whatever you can negotiate with the bands and give or not give away, and that is the way it has been. We have had many problems in this area. Those bands that were able to negotiate more successfully than others, naturally got more money. Indeed, the north—south situation with regard to both facilities and band funding for education is a problem. I would dare say that the southern bands’ facilities, which are obvious, are perhaps in much better shape than the northern ones. There are many smaller bands, particularly in the north, whose facilities are in an extremely serious state of dilapidation. This whole area has to be addressed soon or else our kids are not going to have any places to go to school.
Indeed, our own situation, where we were supposed to get a new school in 1980, there is no progress to date on that matter and I do not know when we will get a school. I guess the kids will have to go to school somewhere else or we will get more portables. We have 10 portables, for instance, and there are many bands that have this situation. As far as the facilities for Indian education in Manitoba, we are grossly behind and I do not know what will happen in this total situation.
The Chairman: Thank you very much, Mr. Thomas. You have provided us with some new data on an area that is of great interest to the special committee.
I am going to ask if Mr. Chenier would like to lead off with some questions to Mr. Thomas.
Mr. Chénier: Yes, and I would like to repeat what the chairman has said about the papers that were presented this morning. As usual, Mr. Thomas brings a lot of enlightenment through the briefs he prepares.
I would like one clarification, Mr. Thomas. On page three, the second paragraph, where you indicate “The move by the Department of Indian Affairs to pressure Indian education authorities to incorporate . . . ”, could you clarify what is being done by the department?
Mr. Thomas: As far as I know, there has been no overt pressure, at least on our band; nor am I aware of any others where there has been overt pressure or documentation from the department to the bands. But as in many other moves the department has made, we understand that this is coming down the pipe and will be included as part of either the negotiating or funding package that is to come either this year or next year. As I understand it, this is coming down the pipe and it is a very serious matter as far as we are concerned.
Mr. Chénier: So this rumoured proposal the department is preparing, would that make the Indian boards of education
similar to the provincial boards, an autonomous body that . . .
Mr. Thomas: Well, it could. There are two things in that whole area. If we incorporate under the provincial corporation laws then we are subject to the Manitoba school act, which we do not want to be. If we incorporate under the federal laws, I guess we are subject to the federal laws and even some of the provincial ones. But it takes away from the cohesiveness of band government, and we do not want to do that. As far as we are concerned, we are not going to do that. We are subject to the authority of the band’s chief in council, and we want to do that.
Mr. Chénier: Would you then like to elaborate for the committee on the type of model, because from what I see in your paper you are saying that the boards of education should be under the authority of the band council and chief, so would you elaborate on how that would work and how you see that working?
I have been a superintendent of education and the board I was working for was completely autonomous, it had nothing to do with the municipal council or anybody like that. They raised their own taxes and so on. So how would your model work?
Mr. Thomas: I was thinking this morning, before I came here, that I worked in Alberta for a number of years in the county system whereby there is a total council of 13 or 14 members, and half of that is a school board. It is not dissimilar to the situation we have at Peguis where, for instance, there is an appointed chairman, three elected members and a member of council on the school board. For all intents they purposes they have developed their own policies and operate independently from council, but still under the authority of council. Except on major issues or issues which the board would deem political or serious, the council is involved in those matters, but they operate quite independently and quite effectively. There is close liaison between both council and the board.
Mr. Chénier: On the financial side, Mr. Chairman, I would like to ask if Mr. Thomas knows the per capita cost for elementary students and secondary students in the non-Indian schools. I am talking about the provincial public schools. Do you know?
Mr. Thomas: Mr. Chénier, it varies from area to area, I think from north to south, from somewhere around $2,500 right now to a frontier school division, for instance, who bills the Department of Indian Affairs, as I understand it, on a per capita- cost—not divided into elementary or secondary, but on a per capita cost for the whole system of $4,700 per year per student. We have some frontier students at Peguis. It is a reverse tuition agreement, as it were, where the frontier school division pays the Indians for providing services. We have billed them for $4,100 per student; that is just a basic education. There are services that we do not provide that public schools provide, as you can see in the larger document. I am sure that per capita cost would be much higher.
We have recently billed the province for some capital dollars, which they have to date refused to pay because they said they have no policy with either the department or Indian bands to share capital costs with us. We, however, hope to be able to solve that shortly. There is no reason why the province should not share with bands in the development of capital facilities, because the department in the past 25 years has spent millions and millions of dollars. I have been a superintendent for the department too, and I know, for instance, in one Alberta town we spent $4.5 million and our Indian kids still sat in the back of the classrooms.
Mr. Chénier: So there is a fair difference between the per capita cost of a public school student or a public
elementary/secondary school student and the per capita cost of an Indian student in an Indian-run school.
Mr. Thomas: Yes, absolutely. If necessary we can provide some of those statistics at a later date for you. I know it has always been that the province gets a lot of dollars from the department for students. In the past I know it has been the case that the Department of Indian Affairs pays these bills without much analysis of what those bills actually were. The chiefs of Manitoba have indicated many times that the province always seems to get first priority over the bands in terms of educational funding. It seems to me that if the department is set up for looking after services for Indian people, then that should be the first priority.
Mr. Chenier: I have been told that where Indian bands have taken control of their education and have negotiated with public boards, they have gotten a better deal costwise than the department used to pay those same boards when they were just billing the Department of Indian Affairs.
Mr. Thomas: There are two things in that. Where the students still go to public schools, as I understand, there have been cases, yes, where the bands have been able to negotiate services beyond those which the department previously had provided. Tbe other thing is that where bands get paid for services from the province, then the province normally has not asked too many questions about what those services would be; they have accepted the services we have been able to provide, indeed have accepted the bills we have given them.
Mr. Chénier: What would be the percentage of Indian students who are still being educated in public schools under what I think were called master tuition agreements? Do you know?
Mr. Thomas: We do not know. We have about 23 band-operated schools, but I am not sure of the numbers that are going to public schools. There is a fair number, mostly because of the size of the reserve schools or the size of the reserve population, and for capital cost reasons, I guess, and per pupil cost with regard to developing a small school, I suppose; those are some of the reasons they would still be going to the public schools.
Mr. Chénier: In the case of welfare, for instance, the Department of Indian Affairs bases the amount they pay to welfare recipients on the amounts paid by the province where these people live. Do you feel that if the Department of Indian Affairs were to do the same thing with education—let us say take the average cost of education per student in Manitoba and establish that as the guideline that would be given Indian school boards to fund their own educational system—do you feel that would be sufficient?
Mr. Thomas: I do not think we can do that as a general policy. First of all, there are costs beyond normal costs, for instance, for the northern schools. The other thing is that the Indian schools do not have all of the services that a first—rate
school division would have for their students. I think that would have to be considered as part of that formula.
Mr. Chénier: Okay, thank you.
The Chairman: Mr. Thomas, could you describe for the committee in what ways, if any, your association regularly relates to the regional office in Manitoba of the Department of Indian Affairs?
Mr. Thomas: Well, to be frank, dollars only, but professional advice, no; that is, educational professional advice. I think we have the educational expertise among the Indian people now to be able to provide the leadership for classrooms, for staff development, for organizational development that the department, it seems to me, has forgotten some years ago because of their attentiveness to their own paperwork and government requirements. There has not been the professional development aspect from the department’s education section that there might have been. We have relations with senior people here in education mostly on dollar matters and program development, and, of course, trying to ward off policies or regulations or new directions in which the department wants to go in all of this thing. There has always been a problem of preconsultation on matters that the department brings down to tell us that this is the way it must be.
The Chairman: So most of the time when you relate to the Department of Indian Affairs in Manitoba, what you do is negotiate for funds to meet your needs; secondly, you try to fight off interference.
Mr. Thomas: That is right.
The Chairman: So your relationship with the regional office could be described as an unsatisfactory one?
Mr. Thomas: Absolutely.
The Chairman: If there were some other way in which funds could flow for the educational needs of Indian students in Manitoba, if there could be a direct transfer, then you would see no useful role that the regional office could play at all; they could just be eliminated. As a matter of fact, you would save time not having, as you said, to be warding off these policies. Would that be correct?
Mr. Thomas: That is right.
The Chairman: When you talk about negotiating for funds, what kind of money are we talking about? What amounts of money are involved?
Mr. Thomas: It varies from band to band, of course.
The Chairman: I mean in total in your association when you negotiate.
Mr. Thomas: Our association, I believe, which includes looking after students going to postsecondary and high school institutions in Manitoba, the association’s budget right now is somewhere between the $900,000 and $1 million for that operation. The mandate we have been given by the chiefs to
carry out that amount of money for staff requirements nowhere meets our needs. It is easy for the department to say that is what the association should be doing, yet we do not have the staff to be able to do all those things we should be doing. We started off, for instance, with one man and his secretatry.
The Chairman: Thank you, Mr. Thomas. I will call next on Mr. Manly.
Mr. Manly: I would like to thank Mr. Thomas for his presentation.
On page six you say:
The management of Indian education must be seen as a logical construct progressing from the management and direction of a local school to the management of complete education systems having all the checks, balances, and supports of a school system outside the context of Indian reserves.
And you go on to list some of the support services that are needed. Could you tell the committee what you have in mind when you talk about some of the checks and balances that are needed?
Mr. Thomas: For instance, I think some of the things we talked about this morning—the financing of it; the progress made in education generally, in programs in terms of requirements that post-secondary institutions have; the funding of students who must go off the reserve for education; new education regulations or laws that come into being; the choice of professional development for our staff—all those things go to make up a system. Out of all that, we must be given the right to be able to choose that which is going to fit our system, as we see it, under the chiefs of Manitoba and their bands, so that we have a system that is going to provide a quality service for the students, regardless of what community it is. That is how I see that.
Mr. Manly: So it would be a series of mechanisms to ensure the quality.
Mr. Thomas: That is right, and it has not been there in the past. We have had to flow in the past with whatever was handed out, available or given, mostly in terms of available dollars and that which the department saw as fitting for Indian students.
Mr. Manly: Would the flow of money be through band councils or band education authorities to the Manitoba Indian Education Association?
Mr. Thomas: Either through the band council or directly to the board. For instance, when we made the agreement with the department for funding of the Peguis school board, it was directly to the board. However, the council oversees that, and there is no problem that way. I would imagine many bands would want it to go through chief in council.
Mr. Manly: In connection with off-reserve students, how would this happen? Would this also go through the chief in council?
Mr. Thomas: Yes, the chief in council or the local school authority.
Mr. Manly: It would be their responsibility to enter into some kind of negotiated agreement with the school board in the community where the students live.
Mr. Thomas: That is right. We have done that in the past from our reserve, and there was no problem that way. The school board handled that whole issue.
Mr. Manly: I have one final question. I wonder if you could say something about the working standards for teachers from the point of view of the teachers as professionals, their ability to belong to the teachers’ federation, their ability to have tenure and so on. Could you indicate what the situation is for band-controlled schools?
Mr. Thomas: The situation we have is that we require all our teachers to be professionally certified. On our reserve, the teachers have to acquire a degree in a certain number of years or go to the master’s level, for instance; and they are all making good progress in that. They belong to The Manitoba Teachers’ Society as associate members; and indeed, The Manitoba Teachers’ Society is encouraging band members who are teachers to join their association. There is a continuing liaison there.
The board itself has liaison and working relationships with the Manitoba Association of School Trustees and the Manitoba Association of School Superintendents. There does not seem to be a problem there; and in fact, with the professional people in the Department of Education in Manitoba, there has not been a problem. We have gotten the help we have required. For instance, the permanent certification of teachers for Indian people on reserves has been very positive. The Department of Education has helped us in all of that.
Mr. Manly: Could you say anything about pensions?
Mr. Thomas: Yes. Most boards have a pension scheme developed for their teachers. For instance, we have Imperial Life, whereby the board pays 6% and the teachers pay 6%; and there are a few other benefits besides that.
Mr. Manly: Has that been able to be integrated with the pension plan for other teachers in Manitoba?
Mr. Thomas: No.
Mr. Manly: If not, do you think it would be desirable to do so?
Mr. Thomas: I think it would be desirable to do so, but we have not been able to do that or a reciprocal agreement with the federal system.
Mr. Manly: I see. Would there be problems in terms of transferring from one system to another?
>Mr. Thomas: No, not really, not when you have private pension systems. For instance, they are almost always with insurance companies, so it is simply a transfer from one mmpany to another.
Mr. Manly: Would you say teachers in your schools would have as much security of tenure, generally, as teachers in provincial schools?
Mr. Thomas: No, I do not think so, because I think there is some vagueness in that whole area as to what the legal eonstaints are. We are currently talking about that whole area. Just what tenure does a teacher have on Indian reserves?
Mr. Manly: Can you indicate what the philosophy of the Manitoba Indian Education Association is towards that question of tenure?
Mr. Thomas: I am not sure we have discussed that very much because we have been working at more basic problems, like the development of organizations for local authority. But my own thinking is that we must have some safe system for teachers to work under; otherwise, we are not going to get the professional people we need. Right now, we are in a fortunate situation, because there is a surplus of teachers in Canada and we are able to hire those kinds of people we want. It may not always be so.
Mr. Manly: Thank you very much. Thank you, Mr. Chairman.
The Chairman: Thanks, Jim.
Ms Jamieson: Thank you, Mr. Chairman.
May I also say how much I enjoyed the Manitoba Indian liducation Association’s submission? I have known Mr. Thomas for a while and know he is not new to the scene of Indian education.
With that in mind, I wonder if I can take you back a little bit to around 1975.
In your document, you refer to the bottom of page nine-and I assume this is one of them. You say:
It is further understood that the federal government is mandated by the treaties and obligated by aboriginal rights and negotiated joint policies between the Indian people and the federal government to provide education of all types and all levels to all status Indian students living on and off reserves.
I wonder if one of the joint policies you are referring to might be Indian control of Indian education, which was something put forward by Indian people in 1975 and subsequently, we thought, adopted by the federal government through the then Minister of Indian Affairs, Jean Chretien.
Since then, in my view, there has been a continuing dispute, and in some places in the country, a raging battle over what that means. The federal government and the Indian Affairs Department continue to interpret Indian control over virtually anything—but in this area, Indian control over Indian education—as having administrative control only. In fact,
Indian leaders have been critical of even Mr. Munro’s new attempts at the Indian band government legislation as being yet another way of looking like you are giving control to Indian people and recognizing Indian self-government, which is inherent, but rather, giving only administrative control.
I wonder if you would comment on where that policy sits at the moment in Manitoba and on whether or not your goal of real control goes beyond administrative control.
Mr. Thomas: Unless we get some mechanism whereby the funding arrangements are different than of today, I think there is going to be continual administrative control. It certainly will be at the whim of the dollars available, which under current economic conditions have been diminishing. Indeed, as I understand it, there is a freeze in Manitoba on the number of any future bands wanting local control for their school because of dollars. In fact, I guess within the last two or three years, the ability of bands to assume even administrative control has been extremely difficult because of the shortage of dollars.
I guess a lot of them have gone through that process but are simply administering a marginal program. Even in our large ‘ school, many services are missing. We do not have a music person, for instance, a crafts person, a special education program or anything like that.
Ms Jamieson: In your view, then, the fact that bands are by and large exercising administrative control only, at the moment, results from the fact that there are limited dollars; and they are under that kind of thumb not as a result of lack of capability or lack of desire to want to go beyond that control.
Mr. Thomas: That is right.
Ms Jamieson: That is right? Okay.
You have discussed funding of the Manitoba Indian Education Association by the federal government or receiving funds through the federal government and through Indian Affairs. I assume that is because originally Indian Affairs was responsible for the education program, and then you gradually took it over.
This might be necessary as an interim measure; but in the long run, when Indian government is recognized as a reality and first nations’ governments run their own education, I am wondering if, in your view, it would give more support to Indian governments were they to fund directly the Manitoba Indian Education Association and the Manitoba Indian education ministry or authority, for example.
Mr. Thomas: Well, at the moment, we are simply a support service and beyond that the chiefs have not made a policy nor given direction as to where this whole thing is going to go with regard to having an Indian ministry of education, for instance. I would have to say that we would have to wait for a direction from the chiefs, because it is to them that we answer from the association. Personally, as chairman of the board, I would not want to take the board in any new direction in all of that until Indian government has taken its place further and given us some direction.
Ms Jamieson: As far as you are concerned, that would pose no difficulty to you?
Mr. Thomas: Not at all.
Ms Jamieson: You are really a mechanism that is used by the band chiefs and councils and are at the direction of the Indian governments.
Mr. Thomas: That is right.
Ms Jamieson: Do you think it would be, from your point of view, essential for Indian governments and your association— or education, in general—to have guaranteed level of funding and go longer than a one-year period?
Mr. Thomas: I think it is, because when you start a program, you never know what is going to happen next year. If you hire a teacher for a particular job, that teacher does not know where he is going to be next year either; because of that I am sure we do not get the people we should have.
Ms Jamieson: I notice in your brief you say that the provincial government and the Indians agree that education is a federal responsibility. This is a view that is widely held across the country. Could you tell me how the federal government responds to this view?
Mr. Thomas: Well, I think right now there is an ongoing assumption or working routine that the department has that they fund federal schools, they fund locally-controlled schools, they fund the integrated system and I do not know that there is much thinking beyond that. I think there is conjecture that the department wants to get rid of all of this responsibility and have it go over to the province. We have seen instances where provincial governments have been responsible for Indian people, not just in education, and the disaster that has been. I think there has to be a continuing recognition that it is a federal responsibility. Whatever mechanism or routine is worked out has to be satisfactory to both the Indian people and the federal government. We do not mind assistance or working relationships with provinces, but we do not want to be provincial people.
Ms Jamieson: So you see a need for a special status to be maintained and a special link with the federal government. Yesterday we were told we do not want to let the federal government off the hook. Is that your view?
Mr. Thomas: Well . . . that we want the federal government off the hook?
Ms Jamieson: No, that you do not want the federal government . . .
Mr. Thomas: No, we do not because there is a lot of unfinished business and nobody has ever had the guts to finish some of it.
Ms Jamieson: I agree with you. One other point I would like to question you on and allow you an opportunity to speak on is that education is to Indian people a right and not something that they have given to them on the basis of need. Although there is a need, there is an overriding element and that is a special right that is available to Indian people. Would you comment on that?
Mr. Thomas: Well, there is a continuing need in many areas. In the whole lifespan or all of the facets of Indians’ lives, as they go from day to day, there are many areas that are still vague, that the department has not faced up to or looked at. They will not look at some of them. While there have been recognized needs in the past, some of these needs have been cut off unilaterally by the department. Regardless of what kinds of papers, and we are continually developing papers . . .
We are fortunate that we have been able to present these funding papers to you because, like so many others, we have filed them on our shelves with no attention paid.
I think for a long time there is going to be a requirement on the part of the Indian people to be able to work with the federal government on unsettled issues, as I said, and in new areas of development if the Indian people are truly to become self-supporting and viable citizens, if I can put it that way, of Canada. This piecemeal business merely adds to the problem. You give a person only so much and he still continues to struggle or you start a program that is not sufficiently funded, that merely adds to their problems. You build up hopes on the part of people and then they are dashed because of lack of follow-up or they are not continued through. This is partly because of the year to year funding problem.
Ms Jamieson: One final question, Mr. Chairman.
We have seen how the federal government continues to try to shrink away from its special responsibility towards Indian people and we have seen the difficulty under the current Indian Act and the way that Indian Affairs is playing its role with respect to Indian people or not playing its role, as the case may be. I wonder if you have given any thought to rather than changing the Indian Act, which you suggest in a couple of places, whether we might accomplish the same thing through confirming federal responsibility to Indian people through, say, a national Indian education act that would put in the legislation, specifically in the area of education, the obligations of the federal government toward Indian people on education?
Mr. Thomas: Well, in the absence of a federal Indian act on education, it has been a problem both at the band level and in the department. How do you refer to something if it is not there? I would believe, on the basis of a negotiated set of statutes between the Indian people and the federal government, that we would be in a much better position than we are currently.
Ms Jamieson: Thank you. I have one small last question; that is, there is $59 million in Manitoba this fiscal year for the Department of Indian Affairs to spend on education for on-reserve Indians. How much of that money—if you do not know the exact figures, would you give us an estimate or a percentage of the money that is in Indian hands of that $59 million.
Mr. Thomas: I really do not know. I saw some figures yesterday, but they were large general figures. I think there was $30 million or something like that for band-controlled schools.
Ms Jamieson: $30 million?
Mr. Thomas: $30 million, as I understand.
Ms Jamieson: So there would be $20 million left somewhere with the department to administer.
Mr. Thomas: Well, that would be for integrated schools, paid provincial boards, the operation of the departments, and federal schools.
Ms Jamieson: Do you think it would be better for the Indian government or the band councils themselves to receive the money directly and then to purchase the kind of education they want from whomever they want directly?
Mr. Thomas: Yes. Well, either through the department or directly to the bands. I have always advocated that where the students are going off the reserve to provincial schools, then the parents and the community certainly must have some input as to what those services are going to be.
If you go to a contractor and lay out the terms of the contract to provide services or a job, it seems to me that you have to oversee that and you pay for the job done. It is not the case at all. It has been the case that the department pays the province without regard to the community. That is unacceptable. The parents and the community have to have some say in what those services are. If they are unsatisfactory, they do not pay for them or the kids do not go.
There has to be an alternative system developed. In fact, there are places where it is so unsatisfactory that you get to the point of diminishing returns. It is better that the kids go to the band-developed facilities if, on the surface, it looks as if everything would make sense that they should go to this public school where there are good facilities, good programs et cetera. This does not always happen. We have had very bad situations and consequently there are drop-outs. The drop-out situation with regard to public schools is still horrible.
Ms Jamieson: Thank you, Mr. Chairman.
The Chairman: Thank you, Roberta.
The next questioner is Stan Schellenberger.
Mr. Schellenberger: Thank you. I just want to follow briefly a couple of the lines of questioning. It seems you are suggesting to us that there would be no difficulty for the tribal councils, through direction from the bands, to go directly to the federal government through either the Department of Indian Affairs or the Secretary of State—for the necessary funding.
If that were the case, could your organization quickly provide the kinds of information and direction that a school board would provide? I am thinking along the lines of such things as curriculum suggestions, a superintendent service, certain professional services, professional development for teachers. Could you contract that? Could you provide the kinds of services that are necessary and provide an excellent education service, as you have pointed out here today?
Mr. Thomas: I do not see any reason why we cannot do that, given the working relationship that we have with the various
tribal councils and indeed with the chiefs as a whole. There can be a mechanism developed quite quickly with that.
Mr. Schellenberger: You are presently operating throughout the province, not in just one particular area?
Mr. Thomas: That is right. We have an officer stationed in Thompson, for instance, who works out of there.
Mr. Schellenberger: Is it still the case when a student goes off the reserve to a school that his total tuition expenses are paid in advance, and if he leaves that institution there is no reimbursement?
Mr. Thomas: Yes. I think there have been cases where it is a little bit different. It depends on when the public school system takes a head count. They take a head count in October, for instance, and in January; if the student leaves at the end of January, the division is paid for the whole year.
Mr. Schellenberger: Something that we have been suggesting for some time is that funding be put out on a quarterly basis—or a third, or something of that sort—of the school year. In that way services would not be paid for that are not being rendered.
Mr. Thomas: Or else a more frequent student count.
Mr. Schellenberger: Are you aware of the Katiskanaw school in Alberta, where a small reserve has built a school but has asked that the province Come in because there are acreage people of quite a significant number in the area? On the school board, the federal government has people, the Indian band has people, and the county has people. The system seems to be working very well for that small band, because the federal government and the band have some input into how the school is run, what funding is put in place, and what curriculum is taught. Is there anything similar to that in Manitoba?
Mr. Thomas: No, not that I am aware of.
Mr. Schellenberger: I think that is it, thank you.
The Chairman: Thank you, Stan.
Mr. Thomas: Excuse me, sir. With regard to local represen- tation on school boards, in the past the public school boards have simply invited Indian members—one mostly, without any voting power—simp1y in an advisory capacity, which is completely unsatisfactory.
Mr. Schellenberger: I agree with that. That is the case in most provinces. There are significant populations of Indian people going to certain public schools, and there is no voting power for the board members. When you are making certain payments of money, it should be an obligation of the board to give the person who is representing those people a vote.
Mr. Thomas: That is right. That is something that ought to be demanded.
The Chairman: Thank you, Stan.
Mr. Allmand: Mr. Thomas, because of the high dropout rates that occurred in the past and still occur too often today, it would seem to be that one of the greatest needs for Indian people would be such things as literacy training for adults, training for work programs, and a lot of things that come under the heading of adult education—retraining, upgrading—right at the reserve. Is your association concerned with that? You did not talk about it in your brief, but that is a very big area. I am just wondering whether that is part of the concern of your association, or is that under some other group in Manitoba?
Mr. Thomas: We have not really gotten into adult education per se. Mostly it has been the band working either with the department or Canada Manpower to do that kind of thing. For instance, at home we have for the last three years had an adult literacy program for people who have dropped out but who are coming back now to finish their Grade 12 or get a general education diploma from high school. We have had some technical courses through the Manitoba Indian Agricultural Program as well. Other bands have done similar things, but our association has not been involved in that.
Mr. Allmand: I see. So that would be something that if it is being done, it is being done through the band councils and the bands.
I have one other question. Yesterday in Long Plain we visited the school, and I was pleased to see that in order to accelerate the participation of local Indians in the education process, they had teacher assistants—I do not know if that is the term they use—teacher aides. The ones I saw were women from the community working alongside the teachers to bring them to the point where they could teach, as well. In view of the fact that there is still a small percentage of teachers on the reserves who are not Indians, I thought that was a good idea. How commonplace is that system in Manitoba of trying to bring along local people in the role of teacher aides?
Mr. Thomas: I think the department has a formula whereby they give a certain number of dollars for a certain number of teacher aides, depending upon the student population. At Douglas, for instance, we have four teacher aides. The condition of their employment is that they take teacher training. We have had people go through that whole thing. It is a very significant part of the school system; I would not want to change that, because it brings the community into the school. In fact, at one point when we first took over, we brought in other people on a two-week basis to work in classrooms to familiarize themselves with the community as to what the school is all about and what is required in classrooms. It worked very well. The community has to be involved in the school if the school is going to work.
I think in Indian communities particularly, the school has to be a focal point of all kinds of activities, not just education, so that it becomes theirs, it becomes an important facet of their
life and provides motivation for both the community and students.
Mr. Allmand: I would just like to return very briefly to the first question I asked, even though your association is not into it in a big way. Do you see a trend among adult Indian people to return to school for adult literacy training, for training for work, to upgrade their education? That is happening, of course, throughout Canada in all communities. Is it happening in a very serious way among Indian people?
Mr. Thomas: I think it is a very serious matter for Indian people. They have always had that motivation to return to school, but again it is a matter of dollars. In fact, the department cut that off some time ago. It has only been through Canada Manpower that we have been able to get some dollars.
In fact, currently some senior bureaucrat has decided that vocational education, occupational training, will go to the economic development section of the department. I think this is completely unrealistic and ridiculous, because as you know, the economic development section does not have the best track record in the world. I do not see how they are going to take on another task if they are not schooled in the discipline. It seems to me that whole area of occupational training and adult education has to remain within an education section. I would urge you as a committee to look into this matter so that education is not split again. The Indian people have a hard enough time finding who they want to find without having to go and find two people for the same reason.
Mr. Allmand: Very good; thank you very much, Mr. Thomas.
The Chairman: Marlyn Kane.
Ms Kane: I would just like to ask Mr. Thomas a question in reference to a statement in your brief. You say:
Education and culture are the ways in which Indian people see and learn about the world we live in.
I, for one, agree with that totally. I was wondering whether you could describe for the committee the current situation in Manitoba with respect to cultural programs in the schools; that is, do you have any? If not, why not? If you do, to what extent are these programs being carried out, what are the difficulties, that kind of thing?
Mr. Thomas: I am not sure of the number of schools where there is a cultural facet to the total program. I think it varies from school to school, but it is seen as a very integral part of the development of the child. We, at Douglas, have developed at least two courses, which have been accredited by the Department of Education, on the history and native culture, so that the students know who they are, where they came from and what they are liable to be as Indian people in Canada.
We have the Manitoba Indian Cultural Education Centre operating out of Winnipeg and it has extension programs, as I umlerstand it, to various reserves. It is not as extensive, I suppose, as it could be, but it is there and people do use it. When our own people go out from the association they try to help in that whole area. Language programs, for instance, have their place and use in the schools, particularly in the north. As I understand it, the students come in, start off in their own language and, over a period of years, revert to English—and there are programs there too.
That is one area that I am not too well versed in, because, as a child, I never did learn my own language and our own reserve did not have the cultural programs that other reserves have. So I really cannot discuss that very fluently.
Ms. Kane: Is it the bands in the southern part of the province that would tend to have lost their language—for lack of a better term?
Mr. Thomas: I would say that it is those bands that have had a long association with non-Indians and who have lived side by side with them, yes.
Ms Kane: I see. Thank you.
The Chairman: Thank you, Marlyn. Are there any further questions? Yes, Mr. Oberle.
Mr. Oberle: Mr. Thomas, as you know, this committee is charged with the task of developing some recommendations leading to a higher degree of Indian self-government and, of course, also with developing ideas of better fiscal relationships between Indian people and the minister and the federal government. I would like to ask you a couple of brief questions with regard to the structure and the relationship that you see developing between the educators and/or the federal government.
I suppose you endorse, in the main, the recommendations of the -1975 paper ending control over Indian education. You quote from it—in the large document, anyway. This paper sees an ultimate system as one that embraces both elements: the element of a middle-class, urban, white educational system and the elements of a system that would address itself to the legitimate aspirations of the Indian people as well. An Indian person—this is, again, from the white paper—would evolve from this system and would have access, therefore, to the total community, the reality of our country.
Going to the structure that you have described for us, you see yourself as the ministry of education. You say that in your brief. You derive your power from the band councils, who have the ultimate authority. The question that it begs is, how do the band councils, the band level governments, compete with the ongoing jurisdictional conflict between the federal and the provincial governments? How can they compete? Let us ignore, for the moment, the Indian component, or the Indian elements, of an ultimate system as envisaged by the paper. What input will the Indian people have, as exercised by the
band council, in relation to the other component? How will they compete with the federal and provincial governments for funds, for input, for curriculum, and so on?
Mr. Thomas: How do they compete? I think, on the surface of it, the Indian chiefs of Manitoba are telling the Government of Canada that there are certain basic rights that cannot be abrogated. It seems to me that therefrom whatever structure arises they will hang on to and get funding thereto. I do not see that that can be interfered with by the province or by other people who are negotiating for dollars from the federal government. It seems to me that there has to be a basic understanding between the government and the Indian people of Manitoba as to what those structures and dollars will be given what understanding there is on what rights those are in education, for instance. It seems to me that that has to be there to begin with, if we are to continue our direction in local control for education and local government. I am not about to say what those are. I will have to leave that to the chiefs, who are, as I said, simply a working and support mechanism at this point.
Mr. Oberle: Yes; I see a bit of a conflict in your brief, in that you talk about the right of first nations to self-government and the supremacy of first nations’ governments, chiefs and councils, over control of education at one end, and yet you also suggest that the federal government delegate more authority to Indian governments by revisions of the Indian Act. By saying that, you are implying that the ultimate authority should still lie with the federal government. There is an inherent contradiction there.
Mr. Thomas: Not so much that as an understanding that the federal government has to have, in whatever legislation that comes down, for Indian education. We will talk about that. Yet, it seems to me, in the development of that the Indian chiefs, in looking at self-government, have to have the ability, or be given the right, to sit down and work out what those are—which in the.past, you know, has not always been the case.
Mr. Oberle: Do you think it would require constitutional changes to put in place the . . . ?
Mr. Thomas: I am not sure what the current Constitution means.
Mr. Oberle: If you put in place the ultimate manifestation of band council supremacy and autonomy, in your opinion would that require constitutional changes?
Mr. Thomas: I do not think so. I think it is a recognition of rights, as the Indian people see it. That has not been spelled out.
Mr. Oberle: Yes, but, as you know, we are working under a federal system and there are three levels of government: federal, provincial and municipal. None of these governments are totally responsible for Indian people. How do they compete in that federal structure? Would it require a third level of government? In other words, I suspect that you have not developed any thoughts or any ideas as to . . . ?
Mr. Thomas: I do not want to put my foot in it, as it were. There is along way to go down the road yet and I do not want to interfere with that, from where I sit as chairman of that board.
Mr. Oberle: So you would not like to comment on that.
Mr. Thomas: No. Basically, I do not think there has to be a conflict or competition in all that once these rights are spelled out in what the Constitution will mean.
Mr. Oberle: I do not see any conflict any longer anyway in recognizing these rights, these inherent rights, these cultural rights and these rights of control over education of the Indian people. The only thing that worries me, and worries this committee because we are charged with this question, is, how are these rights to be exercised and how are they to be conferred? We are talking, as you know, of a quite different structure. You draw your authority and jurisdiction from the roots up, from your band councils; the federal system, under which we operate, goes from the top down. I like your system better, but how do you build it? You have to build it, somehow. Unless you develop a third level of government, you have to find some way by which the band governments can compete with the two other levels on top, who are calling the shots. But this is probably an unfair question to you.
Mr. Thomas: No, I would not want to speak too long on that, or very much about it at all, because I want to leave that to the chiefs.
Mr. Oberle: Okay, thank you very much, Mr. Chairman. I appreciate your brief. It was very helpful.
The Chairman: Thank you, Mr. Oberle.
Any further comments or questions from the committee?
Anything furfher you wish to add, Mr. Thomas?
Mr. Thomas: I just want to thank you very much for your time.
The Chairman: We want to thank you. You have provided us with some useful material and you have responded very forthrightly to our questions, so we are grateful for your appearance today and for the time that you put into putting this presentation together, and also the supporting documents that go with it. Thank you very much.
Mr. Thomas: Thank you, sir.
The Chairman: I call next the Indian Women’s Council of Manitoba, Ms. Maria Flett, President, and those who are with her. I will ask Ms. Maria Flett to introduce those who are with her and also to indicate if it is she or another member of her group who will be making the presentation.
Ms Maria Flett (President, Indian Women’s Council of Manitoba): I would like to ask Ms. Lynda Neckoway to make the initial introductions.
Ms Lynda Neckoway (Co-ordinator, North Region, Indian Women’s Council of Manitoba): Thank you, Mr. Chairman and special committee members, for the opportunity for us to appear before you. My name is Ms. Lynda Neckoway, and beside me is Ms. Donna Fontaine, who will give the introductory remarks. Ms. Maria Flett will present our presentation on behalf of the association. Ken Young, our lawyer, is also present at the table.
We represent the treaty and status Indian women of Manitoba. We are in the process of reorganizing. In fact we have been endorsed by the two Indian organizations of Manitoba: MKO, which is the Manitoba Keewatinowi Okimakanac, and the First Nations Confederacy.
The association will be prepared to answer any questions which the committee may want to ask later. So I will forward this on to Donna.
Ms Donna Fontaine (Co-ordinator, South Region, Indian Women’s Council of Manitoba): Thank you.
The Indian women of Manitoba, represented by the Indian Women’s Council of Manitoba, recognizes that the “ultimate authority over matters affecting Indian people, including issues affecting women, lies within Indian self-government. Our respect for Indian jurisdiction means that any activity or matter we undertake, including our decision to form an Indian women’s organization, requires prior approval of the chiefs of Manitoba. This does not, of course, suggest that our free expression on issues on delegated subject matter from the perspective of women may on occasion differ in degree from the positions advanced and advocated by various Indian political institutions in Manitoba. Differences of opinion do not, however, imply any disrespect for the chiefs of Manitoba, nor for any political or administrative bodies established by them from time to time to exercise powers and functions delegated by the chiefs to such bodies.
As previously indicated, the Indian Women of Manitoba have been granted authority from the Chiefs of First Nations Confederacy and the Manitoba Keewatinowi Okimakanac to address issues affecting Indian women and the Indian family. Our women’s organization exists as part and parcel of the inherent aboriginal rights of Indian people to self-government. We support completely the positions that our Indian political leaders will be presenting to this special committee on Indian self-government.
It is in this context that we make the following submission, which is primarily a condemnation of the Indian Act, a white law, which discriminates against Indian women. It is our belief, and with good foundation, that such legislation would never be enacted by an Indian government.
I will now give the floor to Ms. Maria Flett, our chairperson.
Ms Flett: These are our suggested amendments to the Indian Act to remove sex discrimination.
Thank you for giving us the opportunity to address you on matters which are of fundamental importance to the Indian people of Canada—band membership, and in the case of Indian women, the discriminatory provisions of the band membership provisions of the Indian Act.
Over the course of the past few years attempts made to amend the Indian Act through the guidance of the National Indian Brotherhood have proven fruitless. Indian women have spoken out on the blatantly discriminatory provisions of the Indian Act. In the Lavell case this concern for loss of Indian status by Indian women who married a non-Indian culminated in the Supreme Court of Canada legitimizing the discriminatory provisions of the Indian Act. The Lavell case was so decided in spite of the Drybones case, which had earlier held that certain provisions of the Indian Act relating to liquor offences were invalid because they were discriminatory against a race of people—Indians—contrary to the Canadian Bill of Rights.
The view of the Indian women of Manitoba is that the Drybones case was correctly decided and that the principle on which it was decided should have been applied in the Lavell case. I would add that various Indian organizations intervened in the Lavell case against Jeannette Corbiere Lavell on the grounds that they were opposed to judicial amendments to the Indian Act.
With the foregoing brief legal background, the Indian women of Manitoba wish to state the following. Section 15.(1) of the Canadian Charter of Rights and Freedoms provides the following:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.
Section 32.(2) of the Charter provides:
Notwithstanding subsection (1), Section 15 shall not have effect until three years after this section comes into force.
Thus, Section 15 has no force and effect until April 17, 1985. This allows enough time to provide the federal government with suggested amendments to the Indian Act where Indian women’s rights are concerned.
It is our submission that the following provisions of the Indian act are discriminatory because of sex:
12.(1) The following persons are not entitled to be registered, namely,
(a) a person who
(iv) is a person born ofa marriage entered into after the 4th day of September 1951 and has attained the age of twenty-one years, whose mother and whose father’s mother are not persons described in paragraph 11(a),(b) or (d) or entitled to be registered by virtue of paragraph 11(1)(e)
unless, being a woman, that person is the wife or widow of a person described in section 11, and
(b) a woman who married a person who is not an Indian, unless that woman is subsequently the wife or widow of a person described in section 11.
12(2) The addition to a Band List of the name of an illegitimate child described in paragraph 11(1)(e) may be protected at any time within twelve months after the addition, and if upon the protest it is decided that the father of the child was not an Indian, the child is not entitled to be registered under that paragraph.
Our submission is that the foregoing provisions be amended to allow for inter-marriage without losses or gains in rights with respect to the spouses.
It is our view that children of such marriages should acquire Indian status. Therefore, the marriage by a non-Indian man to an Indian woman should not affect her Indian rights. The marriage of an Indian man to a non-Indian should not result in his spouse acquiring Indian status. Allowing this type of amendment should not result in discriminatory challenges to the act based on sex.
The act should be amended further to allow spouses of mixed marriages to reside on reserves so long as they remain married and are not separated. It is our submission that spouses of such marriages should not be allowed to participate in band politics.
They should be allowed to acquire certificates of possession to reserve lands, subject to their remaining married and are not living separate and apart.
Our view is that the timeframe of living separate and apart be set at two years for the purpose of determining status to remain on a reserve or in possession Of reserve land.
Reinstatement: We submit that the following Indians be reinstated to their respective band list: Those who. have been removed from band lists pursuant to Section 11.(1)(e) of the 1951 Indian act and under Section 12.(2) of the present Indian act; those who become enfranchised as a result of questionable enfranchisement orders; those women who have had their status taken away through intermarriage, including their children; those Indian people who have lost their rights as a result of the so-called “double mother” theory—women whose spouses voluntarily enfranchise their children.
Cut-off date: A date should be set when all band lists should be made to include the reinstated Indian people. We suggest April 17, 1985.
Arbitrations: Arbitration proceedings should be provided to hear and settle disputes relating to reinstatement cases.
Membership registrar: The federal government should continue to maintain an Indian registry. That concludes my presentation. Thank you.
The Chairman: Thank you. Are there any further comments from the delegation? No? May I ask those who represent the Indian Women’s Council of Manitoba if they are aware that a subcommittee of the Standing Committee on Indian Affairs and Northern Development met during the summer, and dealt with the issue of sex discrimination in the Indian act.
Mr. W.C. Thomas (Chairman of the Board, Manitoba Indian Education Association, Inc.): We are aware of that.
The Chairman: I see. Thank you. Have all members of the delegation read the report?
Ms Flett: I have read parts of it.
The Chairman: Are there parts of that report or its recommendations with which the Indian Women’s Council disagrees?
Ms Flett: I guess we are not prepared to answer that at this time.
The Chairman: Is the delegation aware that in response to questions put to the Minister of Indian Affairs, he has indicated that he is prepared to act on the recommendations of the first subcommittee with respect to sex discrimination in the Indian act?
Mr. Thomas: I think the question to be addressed is: What types of changes is the minister or someone from government prepared to recommend in terms of the matter of mixed, or inter-, marriages? Now, I have not seen where a recommenda- tion has been made anywhere to the effect that the spouses of mixed marriages should not lose, or gain, status when the marriage takes place. We would recommend, of course, that the children of those marriages acquire Indian status. That is the basic thrust of our presentation, and I have not heard nor seen that type of response being given anywhere.
The Chairman: Mr. Chénier.
Mr. Chénier: Thank you, Mr. Chairman. On the suggested nmendment to the Indian Act concerning sex discrimination, I would commend the women’s group here for the clarity of their thoughts on. it. But I would like to have a couple of clarifications, as follows: On page 3 where you indicate that the spouse does not gain status, and:
The act should be further amended to allow the spouses of mixed marriages to reside on the reserve, so long as they remain married and are not separated.
You do not address there the situation of the widow or widower. Would they be permitted to remain on reserves with their children?
Mr. Thomas: We believe that the question of residency is something which the Indian governments, the chiefs, will
address when the time comes. I believe that if the legislation is amended to allow for those types of marriages to take place without either spouse acquiring a right, that the time Will Cdrne when that particular problem will be addressed by the Indian governments.
Mr. Chénier: Then on page 4, you indicate those people who should be reinstated; under point No.3, you say?
Those women who have had their status taken away through intermarriages, including their children.
So that would mean that all women since the Indian act took effect would be reinstated? Would that cover only living women, or would it be done posthumously?
Mr. Thomas: That is a question which, again, will have to be addressed in the event that our recommendation for an arbitration process is instituted. That will be a question, I believe, that will be answered at that time.
Mr. Chénier: I suppose probably my next question would be in the same vein because there is a ripple effect in the sense that let us suppose you reinstate a woman who has lost her status and maybe that woman is in her sixties now. So it would be herself, her children, but the moment her Children are reinstated and they become status Indians their Children are also status Indians, and so on. You could go down to four generations, really, could you not? Again, this is net addressed here, and I suppose your answer will be the Same as to the previous . . .
Mr. K. Young (Counsel for Indian Women’s Council of Manitoba): That problem was, of course, not created by Indian people. It was created because legislation was passed by Parliament without consideration being given to the Indian People to speak to that particular issue at the time that leglslation was passed. We do not view it as a major problem.
Mr. Chénier: Okay, thank you.
The Chairman: Mr. Manly, your next question-
Mr. Manly: Thank you, Mr. Chairman. You recommend in the last of your recommendations that the federal government should continue to maintain all indian registry. Does that mean that the federal government Should continue to be in charge of band membership, or would it maintain that registry in response to recommendations from the band council?
Ms Fontaine: The only response that I can give this time is that the all chiefs are going to be giving a presentation, and I feel they will answer that in regard to membership. Thank you.
Mr. Manly: Are you aware whether” or not the all Chiefs are in basic support of your position regarding reinstatement?
Ms Fontaine: Again, I will have to allow them to answer that.
Mr. Manly: Thank you. Have you given any thought to the problems that will perhaps be created in terms of some it-serves that are already overcrowded if there is reinstatement of women who have left those reserves and their children? Have you given any thought to the need for increased finances or an increased land base to accommodate those people who would be reinstated?
Ms Fontaine: Perhaps I can respond in terms of our women’s organization as a provincial body.
The Indian Women’s Council of Manitoba is structured in such a fashion that we have a direct working relationship with band governments, meaning that we are involved at the grassroots level. Our main function is directly to focus our attention on Indian women and youth, meaning the family unit, and there, I guess, we can come into focusing our attention on protecting the family unit when we are looking at reinstatement and the whole scope of that meaning in terms of the social impact that that could have at the band level and also the financial involvement that that is going to take. We hope by the year 1985 we will be able to give you a better, direct overview of that broad scope and our involvement in those areas.
Do you want to answer, too?
Mr. K. Young: Again, I would premise that reply with the. . . Someone mentioned there was a lot of unfinished business with respect to governments and the federal government and Indian people, and it is our view, again, that this is just part of that unfinished business; namely, membership and defining that membership with respect to what has happened in the past and what is going to happen in the future.
Mr. Manly: Thank you very much for your answers. Thank you also for your brief and your recommendations, which we very much appreciate. Thank you.
The Chairman: Thank you, Mr. Manly. Roberta.
Ms Jamieson: Thank you, Mr. Chairman.
I think what some of the members are getting at and maybe having some difficulty with is this—~and I have my own theory on how we got here so I will tell you what I think the problem is and my theory on how we got here, and please tell me if you agree or do not agree.
One the one hand, your brief very clearly says that you agree that the ultimate authority over matters affecting Indian people, including issues affecting women, lies with Indian self-government. On the other hand, you are suggesting changes to the Indian Act. Now, I suspect that the women’s organization would prefer this matter to be dealt with by Indian self-governments. However, at this stage in time, Indian people are stuck with an Indian Act, and the Minister of Indian Affairs, following the recommendations of the subcommittee, has indicated that he is determined to go ahead with changes to the Indian Act. Therefore, you have turned your mind towards those advances and made key recommendations on sections of the Indian Act. Is that right? Maybe I can end that. It would
follow from that that ultimately Indian governments determine citizenship and would do so, in your view, in the future.
Mr. K. Young: That is a statement which I do not think we can probably disagree with; but, in the final analysis, whatever happens with respect to the definition of membership, that definition is going to have to comply with the provisions of the Charter of Rights. In other words, if there are going to be any membership provisions or membership laws passed by Indian government, and if they are in fact discriminatory, they will be subject to challenges by membership of the various bands or tribes, if you want to call them that, in the future. That is basically why we are interested in recommending that if there are going to be any legislative changes to matters relating to band membership by the federal government they be done with the involvement of the Indian people of Canada at this particular time.
Ms Jamieson: So it is the pressure of the Charter of Rights, really?
Mr. K. Young: Exactly.
Ms Jamieson: Thank you very much, Mr. Chairman.
The Chairman: Thank you, Roberta.
Ms Kane: Thank you, Mr. Chairman. I apologize for being a few minutes late to the table. I do not know whether you went into any kind of description of what your organization is doing. You mentioned that you are involved at the grass—roots level. I am just wondering in what kinds of initiatives.
Ms Flett: I guess we are trying to develop an Indian women’s organization that would suit the needs of grass—roots people, mainly the people who are living on reserves. We are not incorporated yet. We have drafted constitutions and we found that our name needs to be changed. The word “council” is the term that is used for governments, and we have to change our name to a different one because of the word “council.”
But the structure of our organization will be that we are open to membership. We are mainly interested in treaty and status Indians across Manitoba. We are also open to non-associate members. We are going to set it up in such a way that we are going to have tribal reps representing their particular areas. These tribal reps will be elected from their tribal areas. Once they are voted in by the members at large—there are districts or regions . . . they will . . . let us see now . . .
Ms Kane: I was not really as interested in the organizational details as in the kinds of things you are doing now, or, ideally what you would like to do. In line with that, how do you proceed in terms of the current Indian governments? I do not know if there are any committees or boards, for example, established on reserves. Suppose it is a school council or something; are you, perhaps, getting involved in making sure women are appointed, in the community, to these boards?
How do you see your role in influencing the decisions to be made in terms of Indian self-government? How do you participate in the process?
Ms Flett: We are a committee and we have been given the mandate by the Manitoba chiefs to go ahead and form. We have their support. As far as rules are concerned, we have nine members who sit on the interim board. These members represent nine tribal areas and one person represents the urban centres. As far as the decisions coming up are concerned, we will be playing a major role, probably, with the chiefs as they Iorm their Indian governments. Does this answer your question?
Ms Kane: Sort of. I do not know if you operate this way now. I do not know if you have considered it for the future. Would you perhaps be a sort of advisory body to the chiefs and councils? Do you see the idea of some sort of a women’s circle where you are involved on a consultative basis in areas perceived to be, not necessarily women’s issues specifically, but concerned with the family unit and all the areas that includes? Do you see the chiefs and councils going to you and asking what would be the best way of improving the education program for your elementary school children for example? I am just throwing these out as examples.
Ms Fontaine: As I stated previously, our Indian women’s organization at the provincial level is structured in such a way as to meet these needs. You are asking what areas are we going to address? The answer is that we will be used as a vehicle to voice the opinions originating at the grass roots level and to address these concerns. This will be our main priority. We will be speaking for and with women at the grass roots level and protect the family unit per se.
Ms Kane: All right. You would listen, then, to the concerns of Indian women at the reserve level and bring them to the chiefs at another level and sort of monitor what they are doing, I suppose, and recommend changes or recommend that they give emphasis or priority to whatever it is. Is that right?
Ms Fontaine: Yes. We are here to assist and promote all areas of Indian self-government.
Ms Kane: All right. Thank you.
The Chairman: Warren Allmand.
Mr. Allmand: Mr. Chairman, I am attempting to understand what the witnesses are saying but I am not yet clear on whether or not they are telling us that we, as members of Parliament, should vote for an amendment to the Indian Act as they suggest even though the Assembly of First Nations may not agree. If the Assembly of First Nations comes out with a statement saying they do not agree with a government bill drawn from what the witnesses have suggested, should we do what the women’s organizations suggest or should we do what the Assembly of First Nations says?
Mr. K. Young: I think the question Mr. Allmand asked is very loaded politically and I do not wish to answer it com-
pletely. Suffice to say, in the final analysis the federal government will still have jurisdiction over Indians and lands reserved for Indians under 91(24) whatever else might happen, unless the Constitution is changed to repeal this provision.
Be that as it may, I believe if the Indian governments are created, I think ultimate authority with respect to membership will, of course, devolve to these Indian governments. I would think this will be the ultimate resolution of questions relating to Indian people. There will be three levels of governments. In my view, it will no longer be necessary for a Department of Indian Affairs to exist. I think it is conceivable that the Indian people will, in the future, be able to deal with the three levels of government as an entity separate unto themselves without having to go through ministerial bureaucracy such as that which now exists in the Department of Indian Affairs.
Mr. Allmand: I agree with what you say, but it does not really answer my question. I will not push it, however.
I am caught in a personal dilemma. I am very committed to equality between men and women. I am committed to this principle. However, I am also very committed to the right of self-determination for Indian people. If I do not believe in Canadian governments and parliaments doing things Indian people do not agree with, and if the Assembly of First Nations says it does not like the bill Mr. Munro has put forward, I am inclined to listen very closely to what the Indian people say through their political leaders; otherwise, I would be a colonial type of legislator.
In any case, let me just raise one other point. I will not push you on the other question. I have some doubt whether or not Section 15 will apply to Indian women. Section 15 is the clause of the Charter of Rights, quoted in your brief, which will come into effect in three years. The reason it may not apply is that Section 25 of the charter says:
The guarantee in this charter of certain rights and freedoms— i.e., Section 15—shall not be construed as to abrogate or derogate from any aboriginal treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada.
The chiefs may say that part of the aboriginal rights is to decide on membership and therefore Section 15 will not apply to Indian membership in any way, because that would be derogating under Section 25 from aboriginal rights. This is, of course, a complex legal question, but all I want to say is that it is not clear that Section 15 would apply to the Indian Act because of Section 25.
Mr. K. Young: I guess it is complex legal talk, but, in any event, all the rights under the Charter of Rights and Freedoms are subject of course to the opening clause; that all the rights are subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
It is conceivable that the federal government can legislate away treaty or Indian rights in the future, based on that very paragraph, the first paragraph of the Charter of Rights. In my view I think the question of Indian government is going to have to be resolved at a very high political level, and I think it is happening at this particular time.
Mr. Allmand: Thank you.
The Chairman: Thank you, Mr. Allmand. Any further comments? Mr. Oberle.
Mr. Oberle: Mr. Chairman, if I may to the witnesses. Let me put it to you in very blunt and frank and open terms.
We were meeting in Ottawa much like this on the question of equal rights for Indian women, and we were looking at the sections in the act that discriminate against women. There is no doubt that some testimony we got, particularly from women, because they were interested in the question, indicated to us that they did not trust that rascal back there in Ottawa, the minister, to protect their rights, because obviously he had not over the last 300 years, whoever he was. However, it became apparent that they did not trust their own man anymore; they did not trust the band councils to properly respect what they felt to be their rights and what I feel to be their rights. That is why they said that it was not just good enough to remove a section from the Indian Act that discriminates; that we had to do more than that, we had to tell the Indian bands to take all the women back. In other words, they asked us to interfere with the rights to self-determination of the Indian bands. I felt very uncomfortable about that, and Mr. Allmand will tell you that he is very uncomfortable about it, because he was a former minister.
Where do you stand? Do you trust the minister in Ottawa more than you trust the band, or would you like him to get out of your way and leave that question with the band council and the chiefs and the tribal governments? That is a very straightforward question. You can all answer it if you want.
Ms Neckoway: We would appreciate that these questions be referred to the Manitoba chiefs who will be doing their presentation next.
Mr. Oberle: Should I take that as an answer that you trust them to do the right thing for you? I need to know.
Mr. K. Young: I think the answer to that question should not be forthcoming from the four of us. I think the answer you are looking for will be given to you in a very, as you say, straight-forward manner by the chiefs who will appear before us.
Mr. Oberle: But it is a women’s question. You see, we have a representative of the national women’s association here. Incidentally, are you affiliated with that group? You are not a member of that group. However, they spoke for women on this committee. They had a representative there, and that is what they wanted. They said: Look, we do not want this question to be answered by the all-chiefs, we are here to answer this question; it is our rights. So they put us in a pretty difficult position, and I am very much afraid that . . . For one thing, I
did not support that particular recommendation that was written in, but the majority of the committee felt they had to correct one wrong that was in the Indian Act and impose another wrong by telling the band councils, the autonomous governments, who their members should be.
Mr. K. Young: I think if you want a straightforward answer, the answer is: Yes, we would want the Indian governments to determine band membership, . . . of course to the Charter of Rights.
Mr. Oberle: All right; that is what I wanted to hear. Thank you very much.
The Chairman: Any further comments? I want then to thank the Indian Women’s Council for appearing and for responding to questions from the members of the special committee.
I would ask the witnesses if they would just remain seated for a moment, as well as the members of the special committee, so that the news media are able to take some footage for news purposes.
While that is being done, I have just a couple of announcements. I have another announcement from the administrator of the friendship centre. He asks that the people who are attending the hearings park their automobiles at the rear of the building after lunch so that the staff members of the friendship centre can have their reserved parking places.
With respect to our work after lunch, we will hear from the Joint Council of Chiefs and All-Chiefs’ Budget Committee of the Assembly of Manitoba Chiefs. They will be the first to appear, and that will be after the adjournment. We will now break and reconvene the hearings at 1.30 p.m.
The Chairman: The afternoon session of the Special Committee on Indian Self-Government is called to order.
Chief Ernie Daniels, Vice-Chief of the Prairie Region of the Assembly of First Nations has requested that our afternoon session of the meeting of the special committee be opened in a traditional way with an Elder leading us in prayer. So, I will ask Chief Ernie Daniels if he will introduce the Elder.
Chief Ernie Daniels (Vice-Chief, Prairie Region, Assembly of First Nations): The Elder is Chief Leslie Longclaws from the Waywayseecappo Band from Rossburn, Manitoba.
Chief Leslie Longclaws (Elder, Waywayseecappo Band): Meegwetch. Thank you for the good session that we had and are having today. We thank our Creator to find a day for us to set up our goals for our children and our grandchildren. I want to say a few words in my own language to talk to our Creator. [prayer continues in native language]
Thank you very much.
Chief Daniels: Thank you, Chief Longclaws.
The Chairman: Thank you, Chief. We will now hear a presentation by the Joint Council of Chiefs and the All-Chiefs Budget Committee of the Assembly of Manitoba Chiefs. I will tall upon Chief Ernie Daniels who is, as I said earlier, Vice-Chief, Prairie Region of the Assembly of First Nations, to introduce those who are with him today. Chief Daniels.
Chief Daniels: Thank you, Mr. Chairman. Again, on behalf of the Joint Council of Chiefs and the All-Chiefs Budget Committee, I also want to recognize a third group here in Manitoba: the Brotherhood of Indian Nations. On their behalf, I welcome you to Winnipeg for this Special Committee on Indian Self-government. Before I introduce my colleagues here, I would like to recognize, if I may, Mr. Chairman, our Indian MLA in Manitoba, Elijah Harper, MLA for Rupertsland.
For the introductions, Mr. Chairman, I will introduce the chiefs first… Chief Jim Bear; Chief Charlie Constant from The Pas; Chief Joe Guy Wood from St. Theresa Point; Chief Harvey Nepinak from the Waterhen Band; and our technicians, support staff, Jay Kaufman; Murray Sinclair, legal adviser to the Joint Council of Chiefs; and another lawyer, Ovide Mercredi, legal adviser to the chiefs.
At this time, I will ask Chief Charlie Constant to make the opening statement in our presentation.
Chief Charlie Constant (The Pas Band, Joint Council of (fhiefs of the Assembly of Manitoba Chiefs): Thank you, Chief Daniels, Mr. Chairman.
We wish to thank members of the special committee for this opportunity to appear before you and state the views of the Assembly of Manitoba on the fundamentally important subject of Indian self-government.
The Assembly of Manitoba Chiefs was created in September 1982 by a political accord between the Chiefs of Manitoba Keewatinowi Okimakanak (MKO) and the First Nation’s Confederacy, representing northern and southern Indian bands respectively. This accord recognized the need for the existence of two or more separate regional political organizations and created the Assembly as the source of political authority on issues and interests of common concern to the Indian people of Manitoba. The accord represented a major step forward in uniting politically the Indian bands of northern and southern Manitoba, but, in addition, it also established a legislative type of political institution open to all the bands of Manitoba that gives expression to the political aspirations of our people for self-government. The Joint Council of Chiefs is the central executive agency of the assembly with authority to co-ordinate and facilitate the activities of the Assembly of Manitoba Chiefs.
One area of co-operative and unified action acknowledged under the accord was that being pursued by the All-Chiefs Budget Committee. This committee was founded in May 1982 by the Chiefs of Manitoba with a mandate to act as their representative agent on matters generally related to budgetary and fiscal relations and interests of the Indian people of Manitoba. It now forms one of the joint standing committees
of the Assembly, the other being the Joint Standing Committee of Chiefs on the Constitution. Specifically, the committee is empowered to negotiate with the Minister of Indian Affairs on such issues as the size, content and priorities of annual and five-year budgets, on the reform of the whole budgetary process, on the form and content of contribution agreements, on housing policy and on reform of the fiscal relationships between the federal and provincial governments and the Indian people of Manitoba.
The Joint Council of Chiefs and the All-Chiefs Budget Committee of Manitoba are therefore two separate entities in terms of functions and responsibilities, but both are accountable and take their direction from the Assembly of Manitoba Chiefs. For these reasons we are making a joint presentation today to your committee. We wish to emphasize that we share the same concerns and speak with one voice on the serious issues we wish to address.
Having dealt with our mandate, which is clear and unambiguous, we wish, members of the committee, to deal with yours.
We note that your mandate is to act as a parliamentary task force on Indian self-government, and it is with this in mind that we address you today. It will not surprise you that the chiefs of Manitoba reject the newer terms of reference you have, which limit the interpretation and review of Indian self- government to purely local band government on Indian reserves. When Indian people speak of Indian self-government, we do not place such a restrictive interpretation on that term. We do not equate self-government with band government and neither do we limit the notion of self-government to reserves.
We, the chiefs of Manitoba, join with our brothers and sisters in other regions who have already informed you that this is an unacceptable interpretation of the term “self—government”, which has much more to do with the vision of the federal government and the Minister of Indian Affairs and Northern Development than it does with the aspirations of the Indian people themselves. To accept these terms of reference by themselves diminishes Indian self-government with built-in assumptions that Indian self-government derives its existence from the federal government and is a statutory creature exercising the powers granted to the local band government at the reserve level. Instead, we interpret self-government to mean the processes, however numerous and diverse, by which Indian people, whether on reserve or off reserve, will determine their own destiny.
The institutional focus that will emerge from these processes cannot be prejudged in advance, since the processes themselves are not yet in effect. We note that the position of the Minister of Indian Affairs, contained in the documents Strengthening Indian Band Government in Canada and The Alternative of Optional Indian Band Government Legislation, when presented to the special committee, were rejected summarily by the Assembly of First Nations because the minister’s concept
of Indian self-government confines their political freedoms to local band governments and fails to recognize Indian self-government as an inherent right not dependent upon the will or whims of Parliament. That is a position fully shared by the chiefs of Manitoba.
To restrict your terms of reference in the way Parliament has is to force on us the federal government’s view of appropriate institutional structure while at the same time denying the need for the very processes which we equate with self-government. We shall deal later in some detail with the proposals made to you by the Minister of Indian Affairs and Northern Development in his notion of self-government. But at this stage we wish to serve notice that double-track Indian government is unacceptable to us in principle.
We trust that the committee will accept our point of view on your mandate and adopt a more open view on the issue of self- government. We would hope it would focus its attention on such fundamental issues as the means of accommodating Indian national self-government within Confederation; the economic basis for self-government; possible appropriate fiscal relationships between Indian nations and Canada; and how the discretion of the Indian people can be broadened under existing constitutional and legal arrangements to help prepare for a movement to self-government under new constitutional arrangements that will see our right to self-government entrenched as an aboriginal and treaty right. We see, therefore, considerable scope for the committee to help facilitate our movement to self-government without at the same time prejudging the form of that government or the relationships we will have in future with Canada, which can only be the outcome of the exercise of our right to self-government and the product of direct negotiations between Indian people and Canada.
However, we are firmly of the view that this exploratory and facilitating role of your committee can be an important one in helping to make self-government a reality for Indian people. Our expectations of the committee are therefore high.
As a basic principle, it is our view that the right of Indians to self-government does not derive from statute but exists as an aboriginal right. The failure of the Indian Act to recognize that right, substituting instead a paternalistic, colonial rule imposed without Indian consent, in no way negates the existence of that right. Indian self-rule has not been extinguished or relinquished by any formal process of negotiation or agreement between Indian nations and any non-Indian government in Canada.
We begin our presentation, therefore, by reasserting our right to self-government, which we interpret to mean the free determination of our political, socio-economic, and cultural institutions and systems, including the power to make and enforce laws as Indian nations with the Canadian federal state. The right to self-government must be entrenched with all our other aboriginal and treaty rights in the Constitution of Canada, along with provision for suitable fiscal arrangements to ensure that the principles find appropriate expression in practice.
We see this entrenchment as being the essential first step in the movement towards self-government; one that must preceed any consideration of changes in the Indian Act or other statutes. We draw your attention to the submission to you by the National Chief of the Assembly of First Nations, Dr. David Ahenakew, which made this point very clearly.
Furthermore, since we hold that Indian self-government is an inherent right, not surrendered, relinquished or diminished by formal treaty or agreements or by legislation, any statute that might be contemplated to give scope to Indian government must be confirmatory, not enabling in nature, and must proceed to enactment only with the full consent of the Indian people.
We reject the suggestion of the Minister of Indian Affairs and Northern Development that the devolution of programs and responsibilities to the local band government is the basis of Indian government in Canada. The minister fails to recognize our inherent political rights to self-government, and like his officials attempts to confine the existence and practice of Indian self-government as a responsible, autonomous, recognized unit of local government, making decisions about matters affecting its own community. That concept not only confines our political freedom to reserves and to the exercise of powers operated by Parliament; it further fails to recognize our inherent aboriginal right to free determination of institutions or forms of Indian self-government and the natural growth and evolution of the institutions and forms of Indian government.
Further, until our rights are entrenched and given practical content by the Indian people themselves, we insist that the obligations of the federal government towards Indian people, as laid down in the treaties and the Indian Act, be carried out fully. In this respect we denounce bitterly the steady withdrawal of the federal government from its obligations towards Indian people by its current budgetary policies. The severe cutbacks that we have experienced in recent years and the acute suffering they are imposing on our people are not only morally reprehensible but are also a clear abrogration of federal government statutory obligations.
We shall return to this matter in due course. Our concern at this point is to emphasize that talk of constitutional or government reform is at this stage merely talk, and while it remains at this level we must insist on the observance by the federal government of its statutory obligations towards Indian people. We wish this committee to convey this in unambiguous terms to the federal government.
On the evolving institutional structures of Indian self- government in Manitoba, we often hear it said that Indian people do not practice self-government; Indians have no experience of government; they have not shown themselves fit to run their own affairs. Indeed, if Mr. Munro and the Department of Indian and Northern Affairs have their way, there will be first- and second—class citizens with respect to the right of Indians to exercise self-rule. We wish to emphasize to the members of the committee that despite the lack of full
legal and institutional recognition for self-government and continuous attempts to contain and subvert this aspiration by the dominant white society, the spirit, demand for, and expression of Indian self-government are alive and well and embodied to some extent in the structure and practices of Indian political institutions. This is because the history of the Indian people is the history of the struggles of Indian people to exercise their undeniable right to self-government.
Existing institutions of government in which Indian people are involved reflect the very contradictory position in which Indian peoples of Canada find themselves. On the one hand, we are bound by a legal and political framework that was imposed upon us so that the basic structure of the institutions which govern us is colonial and paternalistic. We have no effective power in Parliament or over the Department of Indian Affairs.
Band government is an agency of the federal government constrained by the wardship provision of a colonial act. In this respect, the institutions through which we are required to operate reflect our subjugation and dependency. On the other hand, we have a consciousness and an awareness of our subjugation, and in seeking to transform our lives, have created institutions which give political expression to our desire for democracy, dignity, cultural identity and self-determination.
These institutions struggle constantly to survive in a hostile environment. The very dependency they seek to oppose acts to condition and restrain them by imposing financial and legal limitations upon them. For example, it is very hard to develop and maintain institutions that meet our needs when our poverty dictates we rely on handouts from the Department of Indian Affairs. It is very hard to give expression to our views of social priorities when the allocation of funds is governed by laws, rules and bureaucratic directives over which we have no control.
Nevertheless, we have struggled to develop institutions which do reflect our needs and priorities, notwithstanding their crippling constraints. Thus, our institutional structure highlights the very contradictory nature of our situation; on the one hand, of dependency, and on the other, our struggle against it.
If the right of Indian self-government were to become a reality in practice, we would no doubt develop entirely new institutional structures reflecting a more creative positive environment; and hence, the institutional developments we are about to describe cannot be taken to be indicative of what might emerge under self-government. Nevertheless, the spirit and principles underlying some of our effort should be helpful to you in indicating the kind of institutional structure we would seek in a more propitious circumstance.
[The] Assembly of Manitoba Chiefs, for instance, is a purely Indian initiative which arose, as mentioned, through a political accord it represents a voluntary coming together of two regional Organizations on the basis of mutual respect for their independent authority and discretion, recognizing the benefits in be derived from joint action in certain areas. Neither party Seeks to impose directives or constraints on the other, and the Organization functions because it meets a felt need of Indian people.
The fundamental principles underlying this accord are that the Chiefs, as the elected representatives of their people, are the primary spokespersons and the ultimate authority of the indian people, and that the chiefs together in assembly represent the ultimate authority for both the making of policy on behalf of the Indian people and the development and nurturing of Indian institutions and mechanisms to govern the affairs of Indian People
The notion of an Assembly of Manitoba. Chiefs is also a strong expression of our desire as a collectivity and as nations to democratic political institutions with legislative power and authority. We believe these principles are vital to our vision of the manner in which Indian self-government will be exercised.
Here in Manitoba, we have also evolved tribal councils in a bid in extend Indian control over federal government programs Catering for Indian people. As you will know from presentations made to you yesterday in Long Plain, the tribal council is governed by chiefs as the elected representatives of Indian people and permits Indian people to determine program Content and delivery within constraints imposed by accountability to the federal government.
While these constraints are very real, there is no question that Indian people prefer to receive services delivered by their own people. Here, at least, we can recruit and train our people in an environment which is, at once, free of racial discrimination and prejudice and supportive of skill development. We can also, hopefully, deliver services in a more sympathetic and sensitive manner:
At the moment, there are seven tribal councils in Manitoba. we See them not merely as administrative entities but as vitally important institutions, giving concrete expression to our political aspirations-
The Manitoba Indian Education Association performs Similar equally vital functions in the delivery of education Snppprr Services to Indian people. One has only to visit our Offices and see the interaction between staff and clients to understand the qualitatively different atmosphere that exists when Indian—run institutions are compared with those operated by the federal government. The differenceiiis traumatic. The atmosphere is relaxed, supportive and positive, and there is pride in both the staff and the clients.
One can also look to the area of child and family services to see the same positive evolution and expression of Indian people to control their own affairs and direct them in a manner which supports rather than destroys the fabric of our communities and our Indian lifestyle. Where services are federally or provincially operated, there is inevitably distrust, fear, hostility and suspicion. These attitudinal differences might appear of slight interest to members of the committee; but to us, they are of vital concern in our quest for dignity and self—respect, which are the very essence of our struggle for self-government. These institutions are, therefore, important political institutions to Indian people and a tentative first step in a difficult environment towards more ambitious goals of self-government.
What is the response of the federal government? In our judgment, it often borders on near contempt for our institutions. Both tribal councils and the Manitoba Indian Education Association have been the clear targets for budgetary cutbacks in the proposed 1983-1984 budget of the Department of Indian Affairs. MIEA would effectively disappear and tribal councils would be denigrated, if current. proposed cutbacks were sustained.
We append for your information the operational plan highlights for Manitoba region, 1983-1984 and 1986-1987, by the Department of Indian Affairs. We draw your attention to paragraph 4 of page 24 and paragraph 6 of page 28 which document these cutbacks and warn of the very severe political confrontations and consequence there will be felt, both regionally and nationally, as a result.
We can only state that on this issue the Indian people of Manitoba agree wholeheartedly. We promise we will fight and fight hard to protect the very nominal gains we have been able to secure in the recent past.
We find it ironic the Manitoba regional director general of Indian Affairs, in the publication referred to, wonders aloud if there is the slightest possibility of the goal of Indian control of Indian affairs becoming a reality. That is on page 1. We find it doubly ironic he should join with us in attempting to preserve tribal councils, having in the first place drawn up a budget which seeks to eradicate them.
What reason does he give for their retention? It is that tribal councils are his district offices. This statement, above all, sums up the very different manner in which the department views the development of Indian institutions. Like the minister, the regional director general speaks purely in administrative terms, seeing the need for self-government as a way of reducing the budget and delivering services more effectively and with less opposition from Indians. However, we see these institutions in political terms not as extensions of Indian Affairs bureaucracy but as an expression of our aspirations for self-government.
This difference in perspective explains the casual way in which the department feels it can do away with our institutions and why they meet resistance at every turn from Indian people. We repeat: Indian self-government and the development of Indian institutions are expressions of fundamental rights, not a question of alternative delivery mechanisms or of cost efficiency.
We shall not sit idly by and see our hard-won gains, minimal though they are, be taken away from us by a stroke of a bureaucrat’s pen or at the whim of a federal politician. They mean too much to us for that to happen without a fight.
And our gains are indeed minimal. We have no real say in the budgets of bands or tribal councils or the MIEA. We operate within a regime of dictatorial budgetary restraint and federal expenditure guidelines and program directions. Above all, we have few economic institutions and lack the necessary resources to provide what we consider to be the most fundamental requirement for meaningful self-government; that is, aviable economy in which Indian people might be engaged. Our vision of economically viable, more self-reliant communities run on participatory lines with a sense of control over their own destiny remains, for the moment, but a dream. Yet it is a dream that we will fight for politically, and it is our position that the federal government has an obligation to provide the resources necessary to make our vision a reality.
We shall elaborate later on arrangements under which these resources might be provided. Before doing so, however, it is necessary to inform the committee of how we see current trends in the policy and activities of the Department of Indian Affairs as they affect our prospects for future self-government.
I would like to call on Chief Harvey Nepinak to continue the presentation.
Chief Harvey Nepinak (Chief, Waterhen Band, Joint Council of Chiefs of the Assembly of Manitoba Chiefs): Thank you. Current directions in the Department of Indian Affairs: Having begun your travels across the country, you will know better than others that visions of a better way have fired up the resolve and will of the Indian people to fight the oppression that conditions their lives every day. In Manitoba we have not stood idly by and let events run their course. In the last six months or so the All-chiefs Budget Committee has met with some of you a number of times to gain support for what has become a major priority for the Indian people of Manitoba; namely, reform of the existing budgetary processes and fiscal regime of the federal government as it affects Indian people.
We have been most encouraged by and appreciative of the efforts by the committee members around this table, but if you are to understand the full gravity of our concerns and how we set? the achievement of our goals advancing the cause of Indian government you need to also comprehend our View of current directions in the Department of Indian Affairs and the federal government generally. We believe it critically important for your report to show how the Department of Indian Affairs and practices of the federal government operate to impede, put up barriers and undermine existing efforts by Indians to run their own affairs and bring about reform within the existing legislative framework.
The focus of the Department of Indian Affairs as it affects our aspirations has been shaped almost entirely in recent years by fiscal crisis. There have been two dimensions to the response to this crisis. The first has been to retreat into inanagerialism as the department was forced to do something about its reputation for incompetence and lack of control. This has given rise to the adoption of the Management Improvement Program as the first priority of the department, which includes the introduction of five years’ programing and annual operational plans, the tightening up of controls over contribution agreements, housing finance rules, treatment of debt, etc. In effect, it has led to much greater central direction over expenditures at band and tribal council level and a corresponding reduction in discretion at these levels. Moreover, the entire system has served to centralize authority in Ottawa and centralize power in the hands of a bureaucratic clique at the top of the bureaucratic pyramid.
Thus, rather than moving towards a situation that is more supportive of Indian government, contrary to the rhetoric of the government leaders, the opposite is happening and decision-making and the capacity to influence decision-making is being moved further away from Indian people. We see it as no coincidence that this trend is occurring at a time when the Indian people of this country are gaining in strength to assert their rights and in capacity to control and manage their own affairs.
Despite all the talk, much of the tightening—up by the department is pure window—dressing, as the flood of paper dealing with annual and five-year plans contains no meaningful control measures over, for instance, the productivity and work performance of departmental bureaucrats. But at the reserve and tribal council levels the increase in controls is real. The department has unilaterally built into its contribution agreements, for example, a degree of control that exceeds by far that required by Treasury Board.
There has been a provincial movement away from the more flexible consolidated contribution agreement which covers more than one service and permits the movement of funds by bands and tribal councils between services towards single or
comprehensive agreements which do not permit such flexibility. This movement has been unilaterally imposed and has been arbitrary, bearing no relationship to band or tribal council performance or preference.
Contribution agreements are not agreements as such but are unilaterally imposed under the threat of withdrawal of funds. They call for repayment of surplus funds and deficits. They are entirely conditional, carrying with them no obligation on the part of the government to provide adequate and efficient services. They are also arbitrary in that their terms and conditions vary from band to band and tribal council to tribal council in a highly discriminatory manner. As the principal instrument in the department’s devolution policy, their terms are a matter of grave concern to us.
Controls have also been tightened in the area of housing. The single capital contribution agreement introduced in 1982- 1983 to replace band council resolutions provided for a statement of certification verifying 100% completion of the previous year’s housing program and the right to inspect and audit.
The J circulars on housing, which are supposed to take effect this year, require that third-party funding be identified and confirmed in advance of the release of federal funds and that houses must, at a minimum, meet the National Building Code residential standards. Given the grave inadequacy of the federal funds, these would have the effect of undermining the Indian housing program altogether.
The government’s position paper on on-reserve housing further tightens controls by proposing a means test on bands for those obtaining funds. This paper also proposes a higher level of funding and a more aggressive housing construction program. So far all we have seen is the implementation of the restrictive aspects of this policy: the inspection and building code requirements, pre-auditing and the identification and confirmation of third-party funding.
Thus, devolution is being increasingly controlled as the department seeks to solve its fiscal problems on the backs of Indian people. It is disingenuous of the minister to argue, as he did before you, that the government intervenes only when a band exceeds the law. Departmental control is intervention and it permeates the department’s conception of devolution. Furthermore, it is clear that such intervention is increasing.
The second dimension of attempts to deal with the fiscal crisis is that of budget cutbacks. We have already dealt with the implications for tribal councils and the MIEA, but the problem goes much deeper than that and can now be said to have reached the explosion point.
The budget of the department has been slashed in year terms consistently over the past three years. In an earlier submission to your committee, entitled “Information Notes on Analysis and Impact of the DIAND Budget Guidelines for 1983-84 through 1986-87”, we demonstrated the real cuts in the national budget that are proposed for this period and in particular emphasized the drastic reduction in real terms that was proposed for discretionary expenditures and identified even more Draconian cuts envisaged in the “all other expenditures”.
We also noted the cuts proposed in real terms in capital spending. In that document, which has the support of the Assembly of First Nations, we concluded as follows:
(a) The attack on expenditures on Indian services covers both recurrent and capital budgets and will be suspended in I988.
(b) These cutbacks will cause severe disruption to the existing programs and to Indian employment prospects.
(C) No such reductions are envisaged in the staff of the department. Reserves and Indian organizations are bearing the full brunt of the restraint. The embryonic forms of Indian government are being drastically eroded by these cutbacks.
(d) Having administratively devolved many services to Indian organizations, funds are not being provided to ensure the sufficient and effective delivery of services at required levels.
(e) Budget projections cut off virtually all possibility. of community planning, consultation and economic development.
We ended by asking the obvious rhetorical question: is the intent of these cuts gradually to phase out federal government responsibility for Indian services, hoping that the provinces will pick up the slack? As you have heard a hundred times and more, such a shift is totally unacceptable to Indian people and will be bitterly fought.
In our region the proposed budget for 1983-1984 follows the general lines of the national budget, and hence the above conclusions are equally valid. Specifically, as the 1983/84- 1986/87 Operational Plan Highlights for the Manitoba Region indicates, the overall budget will grow by only 1.4% in 1982-1983; considerably below the rate of inflation. Even if supplementary funding covers the inflation aspect of mandatory services, there will still be a slashing of “all other services” to the tune of 41% even before the effects of inflation on the budget are considered.
The department estimates that budget shortfalls in the “discretely funded” and “all other services” categories will amount to no less than $23 million, or 18% of the total budget. When the All-Chiefs Budget Committee presented the case for a shortfall of $25 million in a submission to Mr. Munro last year, his senior bureaucrats laughed at it in the most disparaging manner. Now even the senior bureaucrats of the department have had to admit that our calculations were correct. But you can be sure no apology will be forthcoming.
This disgraceful state of Indian Affairs means that on the department’s own admission expenditure shortfalls on reserves and trusts are equal to 500% of what is actually in the budget for 1983-1984. In economic development they are 96%; community infrastructure, 61%; band government, 34%; and education, 16%. For all the minister’s talk in his submission to you on improving efficiency at the band level, the current budget for 1983-1984 wipes out band training altogether, leading the region to say, in its operational plan document, page 356:
There will be no funds to enable the Bands to improve their financial management administration and program management capabilities.
That same document, page 341, concludes:
Their failure to adjust core funding levels since 1974 has tended to undermine the entire Indian local control process and severely restricts the future of Indian Self-Government.
These damning words come not from us but from the department itself.
These shortfalls in the budget are not calculated as a departure from the level of services that Indian people feel is appropriate. Rather, they are levels thought appropriate by the department relative to past levels. The shortfall figures must therefore be viewed as an absolute minimum.
The solution to this budgetary crisis proposed by the regional director who, it must be admitted, has few options, is to once again convert funds from capital expenditures to the current budget by an amount of $3.5 million, equal to this estimate of priority services that must be protected. Over the past three years this region will have seen more than $10 million of its capital budget converted to meet current operating expenses. We leave it to you to calculate how many houses, schools, health clinics, recreation centres this represents.
While we could go on this way at length, this is enough to show the context in which you must judge the honesty and
sincerity of the Minister of Indian Affairs and Northern Development when he makes such statements to you as:
We agree with the Indian leadership and Indian bands that the cycle of dependency must be broken. Indian people must be given the opportunity to take charge of their own affairs.
We should not delay any further in making improved administrative arrangements that will meet the changing needs of Indian communities, including improvements to financial arrangements and mechanisms.
Nowhere in his discussion of the problems involved in devolution do we see any reference to inadequate funding. Instead, the emphasis throughout is on the need for more controls over funds devolved to Indian organizations, and on the need for more funds for the department to “manage properly the devolution process”.
This managerial emphasis underlies the whole approach of the department and is the essence of the minister’s proposal to you for legislation complementary to the the Indian Act allowing for optional Indian band government. It has nothing to do with Indian self-government as we perceive that term. It is simply yet another expedient to manage the fiscal crisis by heading off Indian political pressures without in the slightest addressing the fundamental political issues that self-government raises and without making adequate fiscal provision even for the existing inadequate level of federal programming.
It is clear that the response of the federal government to the fiscal crisis serves to check and undermine even the limited initiatives successfully fought for by Indian people to date. It also threatens to have the effect of recentralizing delivery of services either by extending even tighter administrative controls down to the implementing agencies or by causing the collapse of those delivery agencies, leading to a direct resumption of delivery roles by the department.
This committee has a responsibility to report on this issue and to recommend a complete overhaul of the governments fiscal priorities and approaches to devolution. You must choose whether you wish to see present trends continue, in which case the result will be a continuation of policies of administering poverty and despair, or you wish to see movement towards genuine self-government, in which case completely new fiscal relationships are required between the government of Canadian and Indian people.
The Chairman: Chief Joe Guy Wood.
Chief Joe Guy Wood (St. Theresa Point Band): Thank you. Indian response to these directions and their relevance to the objective of Indian self-government: the All-Chiefs Budget Committee was of course founded to deal with the fiscal crisis as it effects Indian people and to help define the new kind of
fiscal relationship that will assist Indian people in realizing the goal of self-government. Inevitably, the work of the budget committee has had to confront the reality of the power relationships that underlie the seemingly technical budgetary problems we face. A review of some of the major issues tackled by our committee will perhaps demonstrate more clearly the difference between our approach in this respect and the administrative approach of the department that we so categorically reject.
Contribution agreements are interesting in this regard, because in many ways they define the fundamental nature of the relationship between Indian bands and the federal government. Last year, in response to an attempt by the Department of Indian Affairs to impose its regime of administrative colonialism through the introduction of more extensive terms and conditions in contribution agreements, which saw in certain instances actual band and tribal council job descriptions being defined by the department, the chiefs demanded the withdrawal of these new conditions and the replacement of the existing contribution system by a single master contribution agreement and the setting up of an independent mechanism or tribunal for the settlement of disputes between the bands or tribal councils and the department over the terms, conditions, and administration of contribution agreements.
The principles underlying the proposed master contribution agreement reflect the importance in the thinking of Indian people in Manitoba on devolution of services and the political relationship between the Indian and federal governments. These principles were agreed upon by the chiefs of Manitoba and are as follows:
1. No transfer of programs or services from the federal government to bands, tribal councils or Indian agencies established by the Indian people may result in the withdrawal of federal fiscal commitment or be considered or treated as a change of federal responsibility to treaty Indians.
2. Any transfer of programs or services must be accompanied by a corresponding transfer of fiscal resources sufficient to discharge those responsibilities.
The transfer of programs and services to bands, tribal councils, or Indian agencies established by the Indians must be undertaken with full assurance from the federal government for the objective of providing equality in the standards of services or programs and that federal legal, financial, and constitutional responsibility for Indians will be maintained.
The purpose for the transfer of programs and services to bands, tribal councils or agencies established by the Indian people is to facilitate the bands’ authority and capacity to control Indian destiny and to enhance Indian self-government through entrenching Indian control of programs or services.
The federal government must assume, acknowledge, affirm, and implement its legal and financial responsibilities for the provision of programs and services to all Indian people, regardless of residency, so that program or service transfers will strengthen and not jeopardize the federal-Indian trust relationship.
Any terms and conditions and contributions must be nnitually agreed upon by the parties and not arbitrarily imposed by bureaucratic fiat and reflect a fair and reasonable balance between the requirement for program or service flexibility and the demand for accountability of public funds.
Any contribution arrangements in Manitoba must be linked to a permanent Manitoba-Indian budget bureau accountable through the All-Chiefs Budget Committee to the chiefs of Manitoba as part and parcel of the new budgetary process.
It can be seen that these principles reassert our rights to self-government, reaffirm the basic responsibilities of the federal government, highlight the essentially political nature of transactions which the government insists on reviewing in narrow administrative terms, stress the requirement for negotiations and democracy in arriving at agreements, and points to possible institutional reform as far as the whole budgetary process is concerned.
We ask members of the committee to contrast the present approach to the contribution agreement with the one we propose. Perhaps this will help you understand, in some small way, the great gulf which separates our view of self-government from the department’s notion of devolution.
The master contribution agreement we propose does not avoid the issue of control, accountability, and audit; at the same time it offers flexibility, uniformity of treatment, training for Indian staff, protection of the integrity of the band and tribal council funds, and retention of surpluses.
The chiefs of Manitoba insist that the master contribution agreement should also cover expenditures on housing. They therefore would demand the withdrawl of the J Circulars and immediate steps to deal with the acute housing problems facing Indian people, which is decidedly not control over and accountability of housing funds but the utterly abysmal living conditions that federal housing policy imposes on our people.
The central concern of the chiefs of Manitoba is in fact a complete and immediate overhaul of the whole budgetary machinery as it now exists. You all know that under the existing policy and expenditure management system of government, there is no direct Indian participation in the development of strategic five-year objectives and broad policy proposals. These are handled by the department and a social
policy committee of Cabinet. Nor do Indians have any input into the deliberations of the priorities and planning committee of the Cabinet which authorizes the planning guidelines that impact the social affairs envelope and ultimately the development of budget and priorities.
Of course, we all know about Treasury Board which seems to conveniently rear its ugly head ‘every time the department needs an explanation for not doing anything or for a new administrative policy control. What we find in many instances, however, when the question of a Treasury Board policy is probed, is that all that exists is a tacit agreement among senior bureaucrats to deal with an issue in a certain fashion. This tells you just how far administrative fiat has set the direction of a real government policy on Indian government in this country.
The principles and directions that the chiefs of Manitoba have set for fiscal reform at this stage of their struggle for self-government can be summarized very briefly. With regard to principles of fiscal reform, the following three propositions are being advanced: first, power sharing between the people of Canada as represented through the federal government and the Indian people as represented through their elected leaders; second, direct representation of Indian needs and priorities by the elected representatives of the Indian people; third, budgetary structures, process, and mechanism that provide greater representation and protection of regional needs and priorities.
With respect to our approach, we are calling for five general lines of development:
1. There should be full Indian participation in all stages of the budgetary system, at the Cabinet and Cabinet committee levels, and before the committee of Parliament where Indian budgets are being reviewed in the political process.
2. To be consistent with the special obligation of the federal government with regard to the Indian people, the government ought to establish a separate envelope for Indian affairs under the policy expenditure management system.
3. Indian-controlled budget and planning mechanisms should be developed to represent Indian interest in the budget process at both the national and regional levels with federal financial support.
4. The Department of Indian Affairs should open up its policy and expenditure management process to full Indian involvement at both the national and regional levels.
5. The Department of Indian Affairs should be given a mandate in conjunction with the national Indian budget mechanism to co-ordinate the activities of other departments and agencies delivering services to Indian people, including the drawing up of a draft annual budget and comprehensive five-year operational plan that clearly specifies expenditures of all
lerleral departments and agencies on Indian services and nlentifies transfers to the provinces on account of services.
Within the regional context, our participation in budgetary process is purely token. The budget structure priorities and size are in reality fixed by Ottawa and the regional office. If the department were sincere in its declaration that Indian people must be given the opportunity to take charge of their own affairs, as the minister has claimed in his submission to you, then we are sure you will agree with us when we say we must be in a process that takes charge of our budgets.
We stated earlier that centralization of authority in Ottawa and the concentration of power in the hands of senior bureaucrats represent major barriers to any movement toward self-government. At the same time, we agreed that our ideas of self-government involved the notion of government—to-government relations, which of course is a concept with political relations underpinning as well. It was with this consideration in mind that the chiefs of Manitoba, in considering how to initiate a process of fiscal reform, decided to bypass the DIAND regional office and its bureaucracy altogether and address our concerns and proposals directly to the Minister of Indian Affairs in an effort to negotiate an agreement on budgetary reform that, while addressing the problem regionally, was also national in scope.
We are tabling for your information a copy of a draft memorandum of undertaking between the All-Chiefs Budget Committee of Manitoba, the Assembly of First Nations, and the Minister of Indian Affairs, along with a companion telex from Dr. David Ahenakew and the All-Chiefs Budget Committee. The memorandum seeks to achieve the following: (a) the development of a new master contribution agreement or some satisfactory alternative to existing agreements; (b) negotiations with the government on the current budget, its scope, content, and underlying principles; (c) a political mechanism for negotiations; (d) the development of a Manitoba multi-year operational plan with the official involvement of the All-Chiefs Budget Committee that reflects the needs and priorities of the Indian people; (e) reform of the whole budgetary mechanism to secure significant Indian input.
In this respect, a national initiative involving the All-Chiefs Budget Committee, the Assembly of the First Nations, and the Department of Indian Affairs is proposed.
Some of you are aware of these negotiations with the minister, and in this case of Mr. Chénier; he was directly involved in the formulation of the first draft memorandum. It would be kind to describe the negotiations as torturous. The response of this department has been one of total antagonism and manipulation by senior civil servants and indecisiveness and backsliding by the minister.
We table for your information a chronology of these negotiations; we draw your attention to the date of our submission to the minister on page 2—June of 1982—the subsequent support we received for our position from various quarters, and the interminable dialogue with the Indian Affairs on the memorandum since that time. We are, of course, open to questions on this process.
As of this date, and in spite of several assurances that the memorandum would be accepted, it still has not been signed. Instead, we have received a recent alternative document entitled, significantly, A Memorandum of Understanding. We table this for your perusal. You will see that it differs from our document by avoiding any reference to a political process, and by refusing to entertain any notion of negotiation, emphasizing instead the much less committal discussions. It makes no commitment to a fundamental change in the nature and degree of involvement of Indian people in the budgetary process, and no reference at all to the need for a national initiative in this area. As such, it is not acceptable to the Indian people of Manitoba, and it was formally rejected by the assembly of chiefs this past Monday.
This response highlights once again the purely administrative and bureaucratic approach of the department to Indian problems, the attempt to confront the serious political positions we are taking, and overall, a transparent desire to maintain the status quo while appearing to meet the spirit of our demand.
We call upon the committee to review these documents carefully and to consider their implications for possible proposals relating to measures designed to facilitate the movement to self-government. We ask you to evaluate our demands and to conclude for yourselves their consistency or otherwise with fine words spoken by the minister about the need for greater Indian self-reliance.
You will be aware from news reports of the last few days that the chiefs of Manitoba have been undertaking a similar initiative with the province of Manitoba. We also ask you to compare the minister’s latest response with the agreement we signed with the province of Manitoba on Monday, January 17, 1983. We also table this for your information.
The significance of this agreement should be clearly understood. In this memorandum of undertaking, the provincial government agrees to the following principles: first, the province supports the Indian position that a special trust relationship exists between the Indian people and the federal government based on treaties, the Indian Act, the Constitution, and other laws that results in federal, legal, and financial obligations to Indians; second, the province accepts that Indians are also entitled to the full range of provincial
government services, except where these services replace the federal obligation; third, the province supports the movement of Indian people toward self-government; fourth, the province recognizes the Indian peoples’ right to self-determined political, economic, cultural, and social development, and agrees to support this right through fiscal and budgetary policy.
All of these principles are strong statements of provincial government support for basic Indian positions regarding their rights. In a practical sense, much is also achieved by this agreement, with the province formally recognizing the mandate given to the All-Chiefs Budget Committee to act as a vehicle for joint consultation, information sharing, coordination, research, planning, and negotiation concerning provincial policies and programs that affect Indian people in Manitoba. To achieve real benefits, the memorandum also sets up a working mechanism. At a political level, there will be a minimum of two meetings each year between the budget committee and the native affairs committee of Cabinet to discuss budget issues, set priorities for co-operative action and give direction to officials. At the technical level, the Cabinet and the All-Chiefs Budget Committee will assign specific tasks to their respective technicians.
Two high priority areas for immediate action have already been agreed upon by the province and the chiefs: one, economic development and, two, provincial taxation. The objective of the budget committee in the area of economic development is to increase benefits available to Indian people from provincial programs. In taxation, our objective is to assert the Indian peoples’ claims to exemption from taxation and to progressively remove taxes now collected by the province from status Indians, both on and off the reserves.
The province has also agreed to provide funding for the All-Chiefs Budget Committee to support these joint activities.
In conclusion, this agreement with the Province of Manitoba represents several significant accomplishments, including:
1. Formal recognition and support for the goal of Indian self-government;
2. Formal recognition of the chiefs as the political leaders of their people;
3. Agreement for co-operative actions designed to produce real benefits to the Indian people of Manitoba;
4. Support for the chiefs’ attempts to reform financial relations between the Indian people and the federal and provincial governments.
We are certain the committee will not fail to appreciate the fundamental difference in attitude and approach between the province and the federal government in dealing with the chiefs of Manitoba on budgetary issues. While we appreciate that the problems inherent in budgetary reform are likely to be more complex in the case of our dealings with the federal government, there is, nevertheless, clearly a difference in spirit, intent and approach between the two levels of government.
Of course, we would welcome any assistance the committee might be able to give in furthering our efforts to control the forces that shape our lives within the existing, very unsatisfactory, structures of the governments.
Chief Jim Bear, from Brokenhead Reserve, will continue with the presentation.
Chief Jim Bear (Brokenhead Band): Thank you very much, Joe.
There are a number of lessons we draw from our experiences that might be useful to the deliberations of your committee.
The first of these is that there can be no administrative or bureaucratic solution to our problems; hence, the current approach of the Department of Indian Affairs to devolution and reformed band government, which have as their rationale improvement of management, is not acceptable to us. We cannot emphasize strongly enough our view that Canadian society as a whole will experience an ever greater social and economic cost if it fails to move forward with the radical changes necessary to bring about Indian self-government. When there is a transfer of real control to Indian people for the management of their own affairs, that is, a shift in political power, the benefits have been enormous and rapid progress in improving human and community conditions has taken place.
Our second major conclusion is that major urgency is needed in federal government structures and processes if even minimal forms of self-government are to be realized. The movement to Indian self-government will be resisted at every turn by powerful vested interests inside and outside government who, despite their rhetoric, do not have the best interests of the Indian people in mind. Our experience with our fiscal reform initiative serves to reaffirm our basic conclusion that the right to Indian self-government must be entrenched as a right and precede any attempts to give statutory content to the notion of self-government.
The centralization of powers through the expenditure system and the controls imposed by the Department of Indian Affairs, which exceed the existing requirements of Treasury Board, represent an attempt by bureaucrats to improve their
managerial image “responsible” government department, while hiding their poor performance in the exercise of their mandate by shifting the blame for poor performance to Indian people. Indeed, the contribution agreement, in its many varied forms, is, above all, an instrument of control evidencing the colonial nature of the relationship between the department and Indians and a real intent to produce greater and greater control over our people and communities.
It is clear to us that major new and imaginative fiscal arrangements must be developed to facilitate Indian self-government. They will certainly have to go beyond those advanced by the Manitoba chiefs to this point. In this respect, the fiscal responsibility of the federal government must also be entrenched in the Constitution. In addition, fiscal transfers to Indian people need to be guaranteed and related to the loss of historic resources and rents arising from land surrenders. The precise mechanism and level of transfer is a matter for political negotiations between Indian people and the federal and provincial governments, and different regions of the country will no doubt demand, or require, different fiscal relationships. This should be encouraged and accommodated.
Pending more fundamental transformations of fiscal relationships, Indian people must assume greater control over decision-making in the budgetary area within the context of a greatly expanded Indian Affairs budget. As such, the initiatives of the All-Chiefs Budget Committee in the area of budget reform should be supported and encouraged. The essentially political nature of these initiatives must be recognized by the government and dealt with as such and not be denied by allowing bureaucrats, afraid of losing their power base, to dictate policy.
The single overriding conclusion from our experience is that the struggle for Indian self-government will be, for the Indian people of Canada, an enduring one.
The Chairman: I would like to say to the Joint Council of Chiefs and the All-Chiefs Budget Committee of the Assembly of Manitoba Chiefs that we expected from you a submission of very high quality and we are certainly not disappointed. You have delivered to us this afternoon a very full statement, a clear description of the problems inherent in the current situation; at the same time, your submission points positively towards solutions and points towards new directions for the realization of the legitimate and reasonable aspirations of Indian people. So on behalf of the members of the special committee, I want to thank you for the great amount of work and thought that went into this submission. Naturally, as you would expect from the committee-parliamentarians, and our other members of the committee-there will be many comments and questions.
I also understand, before we get into that phase, that you would appreciate a brief break and we are happy to accommodate you. There will now be a 10-minute recess, after which, if you will return to the table, we will start with a round of questions. Thank you.
The Chairman: Just before I call upon the first questioner from the special committee, I would draw to the attention of members to the following. The Joint Council of Chiefs and the All-Chiefs Budget Committee of the Assembly of Manitoba Chiefs have presented to us, along with their submission, a total of eight documents. Therefore, I would seek the authority of the special committee to have these documents listed in our proceedings and be available to those who want them as exhibits. Is that agreed?
Some hon. Members: Agreed.
The Chairman: Thank you. Mr. Oberle, would you begin, please. First, Roberta Jamieson, on a point of order.
Ms Jamieson: I am just a little concerned, Mr. Chairman. In the brief they referred to the fact that perhaps the terms of reference of this subcommittee are quite restricted only to looking at local band government on Indian reserves. Mr. Chairman, I would like you to reassure the witnesses that our purpose is to give the widest possible examination of the relationship between the First Nations in this country with the Canadian government, including self-government and all that that means. In fact, our committee is called a committee to look at Indian self-government. I wonder if you would speak on that before we carry on, and despite what Mr. Munro would like us to look at.
The Chairman: Well, Ms Jamieson, I think I can answer that question quite directly by saying that terms of reference, by their very nature, are subject to interpretation, and when you have a group of politicians from different parts of this very diverse country, and representing different political parties, 9 you can almost be certain that those terms of reference will be interpreted in the broadest possible way. There is no way that any official of the department, or the minister himself, could impose a narrow interpretation upon the minds of these people that you see in this committee. They are of independent mind, and will examine the entire question of Indian government relations in ways they believe to be appropriate. So I think the concerns which you expressed at the beginning of your submission are not matters to cause you undue distress. We indicated this in other parts of the country where we have been, and I think you will see in the end that we will use a broad interpretation, as I said at the beginning, rather than a narrow one. Now, Mr. Oberle.
Mr. Oberle: Thank you, Mr. Chairman. and through you to the witnesses, first I will make a brief opening statement to acknowledge and recognize the work which has gone into this brief. It is terribly unfortunate that it was not possible for us to have these documents some time in advance, before we actually meet you, because then it would be possible for us to absorb all the information in them and probably come up with much more meaningful dialogue. That is not your fault; it is our fault; we are rushed. And there is some misunderstanding, as well, over our work, as is apparent from Roberta Jamieson’s intervention—namely, that you see us as being restricted to discussing Indian self-government in very narrow terms.
All of us here would argue quite the contrary. We do not like to take off on these exercises by discussing matters we already know. In fact, I said to the committee before we started out that I, and my party, would not at all be interested in another trip through the Sioux to study what already has been studied a hundred times over. We want to carry on meaningful dialogue with the Indian people and, hopefully, come up with some answers to help us help you to chart the future of your children, and theirs. It is unfortunate, therefore, if you misinterpreted our mandate, and if you have left out certain things from your brief which otherwise would have been in there. I apologize for my not being able to address myself, or ourselves, to the intricate details of the brief. Ilowever, I can assure you that it will be a very useful document as we begin the writing of the report later this year.
Now then—and some of you around the table ran into this yesterday—I want to say that, personally, I use a certain technique in extracting information. All members on this committee are very knowledgeable of the problems of Indian people in Canada. Let me tell you that there is no political mileage for a member of Parliament to sit on one of these committees. As a matter of fact, quite often you are told by the rest of your constitutents in my particular case, that would be 98% of them—that we are am spending entirely too much time on Indian Affairs. So we are committed to your cause. I am only saying that to make you understand that I am performing the role of the devil’s advocate, and by doing, that I find it expedient and useful to extract information from you. So I will be a little critical of your brief and invite you to challenge me or to correct me if I interpret what you have said wrongly. Hopefully, in the course of this dialogue, we will learn some additional points which will be useful to us in our work.
Let me quickly say what the brief says to me; again, this comes from only a very cursory examination. I read it only as you read it aloud to us. The brief said to me the following: we do not want to talk about self-government until the concept of it is entrenched in the Constitution. You say that repeatedly, and is an interesting situation. You do not see this committee as an effective tool leading up to constitutional talks; you are not ready to talk about self-government until you get a chance to talk with the other two levels of government—the federal and provincial governments—with whom you are to sit down in March. So my first question is: are you, the chiefs of Manitoba, a part of an effort to develop a proposal for self-
government which you will take to the constitutional conference? Are you ready to discuss your government model with the partners in Confederation who will be meeting you in March?
Chief Daniels: Mr. Chairman, there are three or four chiefs here, and anything to do with Indian self-government will be answered by my other colleagues. Anything to do with budgetary issues will be answered by me. So I will refer the question to Chief Jim Bear at this time.
Chief Bear: I would just like to say that the entrenchment of our aboriginal and treaty rights is a step which we see as a must, and consent as well. With respect to Indian self-government, I think in the past few days you have seen some examples of Indian self-government—things which are to determine institutions, some of which we have in place already.
Yesterday, you heard from the tribal councils. Those are a form of Indian institution which furthers Indian self-government. The MIEA, from whom you heard this morning, is another example of Indian self-government. So I think you have some good concrete examples of Indian self-government. But we must have those basic principles in place and we would be looking forward to negotiating with the federal government in respect to those.
Mr. Oberle: As the brief was read I drew a sort of chart of a government structure that recurred as a theme in the brief. I will share with you what I read out of the brief of an emerging structure of government. Undoubtedly, the individual band council is the most autonomous unit or the most basic union of the self-government structure. From the band council would flow—this is the experience we have had over the last couple of days, and I would like you to correct me if I am wrong—on the administrative side, an Indian education association and on the political side, a tribal council. In other words, power will be conferred upwards. Also, on the political side, the emergence of an Assembly of Manitoba Chiefs; the all budgets committee, and on the administrative side a budget bureau. Of course, from that the emergence of a Joint Council of Chiefs, then a tie-in of the Joint Council of Chiefs to the Assembly of First Nations.
Am I correct in building this model or is there something wrong with that?
Mr. Ovide Mercredi (Legal Counsel, Prairie Region, Assembly of First Nations): In our presentation to the committee we included a diagram that presently describes one of the existing political units of Indian government in this province.
Before I attempt to describe that I wish to deal with the initial question that you raised about what you imagine to be, or feel to be, a reluctance on our part to recognize this committee in its deliberations over Indian self-government.
Because of the constitutional position that we have taken, the entrenchment of self-government prior to any legislation, we feel, although this committee has a function, that perhaps it In premature in terms of its work, that it may have a more appropriate time following the entrenchment of Indian self-government to do the deliberations that it is presently undertaking across the country. Now, we say that not with any disrespect for the process that has been initiated by the standing committee. Of course, that explains the reason why we are at least discussing with you some of the basic principles that we recognize as Indian people in this province.
When we talk about Indian government we refer to different torms of Indian government. You have touched upon some of them; the band level kind of government; the Assembly of Manitoba Chiefs; the Assembly of First Nations at the national level. But we go beyond that. We say it could be more than that. It need not be restricted to that and essentially the message we are trying to get to you is, whatever the forms are, existing ones or some modified ones in the future, they have to be tnade pursuant to Indian initiative and with Indian consent.
The principles we are advancing at this meeting are very simple. One is the entrenchment of self-government. The other one is, following that, the enactment of legislation that is confirmatory—not enabling but confirmatory—of those rights of Indian self-government. Finally, consent by Indian people to the contents and provisions of confirmatory legislation of their rights to exercise any form of self-government that they wish to exercise, at any given time in their history in this country.
Mr. Oberle: You are telling me that there may be a whole number of different forms of self-government emerging?
Mr. Mercredi: What we are saying is, we do not want to prejudge the forms. And for that matter we do not wish to create a static form of Indian government by recognizing only what is there now. In other words, the principle of evolution, evolving forms of government, is very important to us. That is the message, essentially, in a nutshell.
Mr. Oberle: Yes. Well, let me voice a word of caution. I put myself into the shoes now of the Prime Minister and the 10 premiers who will be meeting with you at the constitutional conference. You say you want self-government entrenched in the Constitution. I want to know what that is. How can I entrench something that I am initially nervous about?
I will tell you what makes them nervous. The form of self-government that the Indian people need, in order to have their legitimate rights and aspirations respected, will have to be by its very nature something quite different than the established forms of government in our country right now.
For one thing, if you look at nothing else, it is the evolution of forms of self-government which will happen from the roots up, from the band council up—in our situation it happened from the top down. We get together and get a federal government. They confer power to the provinces; the provinces confer
powers to the municipalities. I suggest to you, as you say in your brief, that may be one of the reasons why it is easier for you to deal with the Province of Manitoba. They are used to dealing with smaller entities of government; with band councils or, in their case, municipalities. The federal government has no ability to… and that is why we saw the evolution of the Indian Affairs bureaucracy. In the absence of a government of the aboriginal nations in Canada, that could deal with the federal government, we had to set up a structure to deal with 568— or whatever it is—individual governments.
Throughout your brief you say that you want to be involved in the budgetary process; you want to be in the decision- making position of where the money goes, how it is spent and how much is going to be spent. Well, who in this particular structure that we have established so far—or using your sheet which is not too much different—will be the budget bureau? Will it be the Assembly of First Nations? Should we pay all the money to the Assembly of First Nations? Incidentally, the people in the constitutional conference will be telling you the white man’s budget has two sides to it: one is the revenue and one is the expenditure side. They will want to know from you, I suppose, whether you intend to raise any revenues; whether you will be raising taxes; all these things. The question is: Who will be the budget committee that will deal with the federal government?
I will tell you that the budget committee right now is the Indian Affairs bureaucrat who goes to the band and says, what do you need in terms of houses; what do you need in terms of this or that. Each band cannot go to the Treasury Board. The system is not arranged that way. It is great to say, we want to deal with the Treasury Board, we do not want to deal with all these insensitive Indian Affairs bureaucrats. It is just not in the cards that each band could go to the Treasury Board. So I want to know who this budget committee is going to be and I want to know also what you are taking to the constitutional conference in terms. . . If I were Mr. Trudeau or one of the premiers, I would ask you: What is it going to be, a third form of government or are you going to elect your own members of Parliament to sit in the House of Commons? Do you want a special Senate or do you want an eleventh province? What is it going to be before I entrench it?
This is my final point. I will let you answer that. The nature of your government is going to be quite different from the nature of the white man’s government. You are going to need a collective structure to address yourself to the cultural needs of your people. The white man’s structure is one of a liberal democracy where the individual is the cornerstone, not the collective component of your band. So it is going to be quite different and it makes the white man nervous. You are going to build a nation within the nation. Will it fit into Confederation? Frankly, if I were sitting around a table I would have to have a little more information than what is in your brief here before I say, yes, I think it is the Indian’s inherent right. It
should be entrenched in the Constitution that they should have their government.
I would like to know a little more about it and the question begs. The brief does not tell us any more about it. It says that you want some input in the budget but, as you know, there is only so much money. The minister would gladly get rid of sotne of his responsibility that you say in the brief you want to hold him to. But frankly, if I were the minister, if I am to be held responsible, and as you say he had to remain responsible, I would want control, and the control is exercised through the Indian Affairs bureaucracy. You cannot have your cake and eat it, too. If you want to get rid of the Indian Affairs bureaucracy, you have to relieve the minister of his responsibility and his control and you have to replace it with something else, and I do not think the brief is sufficient enough to give us enough in formation to write into a report.
Mr. Mercredi: Mr. Chairman, in response to that rather long question, the constitutional position that we are developing in this province will be shared in the appropriate forum, at the appropriate time. We do not see this particular committee as the forum to receive proposals on constitutional amendments. So, if I may again remind you, Mr. Oberle, what we said in our proposal is that we do not want to prejudge the forums of Indian government that may arise. Essentially what we want done in the constitution is that it be recognized and that it flow from Indian initiative and not from someone else’s concept of what Indian government is.
Now, apart from those general principles, we are not prepared to go into any detail with you, or with this committee, as to what our concept of Indian self-government is. I repeat myself in concluding that this is not, in our view, the appropriate forum for that. That explains the reason why there is no detailed recognition of our constitutional position in that document that is in front of you. But what we do do—and quite effectively, I think—is describe the current system as it is and as it affects the Indian people of this country; and within that system we describe to you in great detail the attempts we Itave made in the past year to suggest changes, to make reforms, so that the system, even as it is, which is totally inadequate to us—which does not recognize our inherent right to self-government and refuses to be changed to be reformed . . .
The proposal before the constitutional conference will be quite different from the nature of the discussions here. There we will talk about a new regime between Canada and the Indian people, and flowing from that, from this new political arrangement, will hopefully be some form of Indian govern-
ment that the Indian people can live with and that Parliament can live with.
It is not that we want the right to be exclusive masters, say, in our field. We do recognize the Canadian parliamentary system. We do recognize that we have to make our niche within that system. We are not talking here about sovereignty in the sense of completely independent nations, we are talking about some kind of accommodation with the white government of this country; we are talking about a new arrangement. At the same time, we are drawing to your attention the problems with the current system that we operate under.
Mr. Oberle: I see. Finally, the frustration that I suffer is that you are not talking to a stranger. I have been involved in this exercise for the last 10 years. I am painfully aware of the problems that you are facing. So if you are telling me that you are not prepared to tell us what you are discussing with the premiers, you could have told us that in a letter and you would have saved us and you a lot of time, because we think we are here to discuss Indian self-government as our main purpose. If you are telling us that that is not what you are willing to discuss, we could have saved all of us a lot of time.
Let me tell you this. The minister will not dismantle his bureaucracy unless he is going to get rid of his trust responsibility. If I were the minister, I would not dismantle my bureaucracy, either, if I had the ultimate trust responsibility; and you are saying that that has to stay in place. So I am telling you that the Indian Affairs bureaucracy is going to stay in place until you have decided what form of self-government you are going to build for yourself to assume the responsibility that the minister now has for each individual Indian and their future generations.
I am telling you that I am personally disappointed and frustrated to be meeting with such a powerful group as you are, such an influential group—Indian leaders of such well thought out political institutions—and you are not willing to share your views with us, so I have no further questions, Mr. Chairman.
The Chairman: Okay, Mr. Oberle. Any comment from the witnesses on that statement? Chief Daniels.
Chief Daniels: Just briefly. I think our brief is designed to give us guidelines and direction in terms of development towards Indian self-government. I guess Mr. Oberle fails to recognize it; and I understand where he comes from. Thank you.
The Chairman: Thank you, Chief Daniels. I will call next on Mr. Manly for some questions.
Mr. Manly: Thank you, Mr. Chairman. I would like to thank the chiefs for their presentation. Unlike Mr. Oberle, I think. there is some very helpful material in here for the
Comittee. I think all of us, including yourselves, are concerned about what might come out of the constitutional conference next month. One of the things that I have heard suggested is that perhaps we are not going to reach any final solution on the entrenchment of rights, but that there will be an agreement that there will be an ongoing process and that this is liable to be a fairly drawn-out process.
Now, as I hear your brief, it seems to me you are saying that there are two things that have to happen. First of all, there has to be a recognition of your inherent right to government, and secondly, there has to be very basic changes made in the old Its-cal relationship. My question is this: Given the fact that we might be into a long, ongoing process regarding your constitutional rights, is it possible to be making changes at the same time in the process of transferring money to Indian governments across Canada, and if so, what steps should be taken immediately?
Chief Daniels: First of all, Mr. Chairman, Mr. Manly, we have immediate problems right now in terms of the budget crisis as it affects Indian people. I think that has to be immediately dealt with in Parliament or in Cabinet; but the ongoing process you are talking about and the future changes, I guess we are awaiting anxiously, too, for Section 37 to happen and to start defining our treaty and aboriginal rights. hopefully, the government will agree to an ongoing process at that forum; that hopefully the Parliament of Canada and ourselves can come up with, you know, a true Indian self-government, the way we would like to see it recognized.
Maybe at this time I will turn to Jay Kaufman in regard to your question.
Mr. Kaufman: I think the thrust of the brief is to say at one level that there needs to be reform now. It is urgently needed, and, as the chief has said, budget changes are needed and change in fiscal relationships, and that can occur within the context of ongoing process. The point is that the experience of the chiefs has been that there is no willingness—the spirit does ttot seem to be there—and when one approaches attempts at reform, what one finds are walls of opposition.
So the importance of this committee’s identifying those areas where, having examined the issues, they believe reform can take place . . . We say more than that. We say the types of reform have to be consistent with the principles of self-government. If you read through the brief, I think you will see there is a certain coherence the chiefs of Manitoba have established in their position that flows from the original set of principles, the point of entrenchment, and works from there. It is precisely because the attempts have been rooted in concepts of Indian self-government that so much opposition has been encountered with Indian Affairs.
The chiefs have tried to establish, for example, the principle of a direct relationship at the political level. That has been stonewalled; and as they point out in their brief, for example, in terms of Mr. Munro’s latest response to their initiatives, it is very unclear whether he still supports or ever did support the development of that relationship. That seems to us a very important thing to establish, because the experience of Indian people in particular bands is to deal with bureaucrats.
In response also to a comment of Mr. Oberle about the budget committee, if one looks at the diagram, it is quite clear the chiefs in this province have established a committee of chiefs accountable to the whole of the assembly of chiefs, which is designed to advance their view of what budget priorities ought to be, the types of budget processes. In order to do that, it is very clear they have to have a relationship down to the band level as well, because that is where many of the budgetary issues arise.
So the very act of going forward and attempting to bring about reform, to establish negotiations on this year’s budget and next year’s budget at a political level, are all concrete examples of an expression of the drive for self-government and the resistence. That is the message the chiefs here are giving to you. It seems to me, when you are considering reforms, you have to” keep that experience vitally in mind.
Mr. Manly: The committee has already seen evidence of Indian government, when we were at Long Plain yesterday and in other places. We have heard testimony indicating the very dramatic changes that can take place, for example, in education, when it is administered by Indian people. But you are still hemmed in by a whole series of government restrictions, and this is why you want to have the entrenchment of your right to Indian government.
But Indian government already exists. So you are saying, to meet even the very minimum statements the minister makes about Indian government, there have to be very dramatic changes in the funding formula.
Chief Daniels: That is quite true, Mr. Manly. We realize we are still in a very small box, where it restricts the development of Indian people; and our goal is to get away from that box. Through the ongoing process, as I said a while ago, I think we will finally, hopefully, be recognized within this Canadian society, with the recognition of our inherent right to self-government. Hopefully, in the end, that is the result.
Mr. Manly: Could you give some more information to the committee about the way in which the low increase in the regional budget affects your programs? So much of it has to go towards maintaining the bureaucracy, which is indexed at least partly towards inflation.
Chief Daniels: In the province of Manitoba, the priority seems to be welfare; and that seems to be going all the time. But in terms of developmental programs, they are decreasing or maintenance budgets. It appears the dependency programs, where it really stops the development of people, seems to be a priority; and for what reason, I do not know.
Maybe in terms of the detailed technical question, in terms of the budget and how it affects our people, I will turn the chair over to Jay.
Mr. Kaufman: I think one has to understand the structure of the way the budget gets approved, what the components of the budget are, what status each component has and what areas within each component are covered. For example, mandatory set-vices covers welfare and some components of education. Iliscretely funded services cover some other things, and then there are the so-called other categories. The way in which the department receives its funding must cover mandatory services, as the term suggests; and so new moneys can get stippefl up in that particular category. We are talking about—I forget the actual figure now—probably about 80% of the budget.
So as in the case of last year, 1981-1982, that area might ltave increased 15%, but the overall budget increase would Iiave been 10% for the department. Therefore, other areas get systematically cut back.
There is a certain protected area, which is referred to as discretely funded services. They will get some increase. So you have other areas, this other service category, which therefore has to suffer the brunt of budget cutbacks. In the future, we are seeing that protected and other services together are now getting slashed.
So one of the effects, as the system works its way through, is that tribal councils end up with 50% of their budgets being cut back. They are projected to be cut back this coming year.
We have pointed out—these are not our figures, but regional; you have this information in front of you—that 41% of the other categories, many of which are specifically matters related to Indian government institutions, are the things being destroyed by these budget cutbacks. So you have a system there.
Interestingly enough, we made a comment about the relationship between Treasury Board and the department. That particular system has no statutory basis. It is simply an agreement. It is not even a policy, as we understand it, at the level of a formula policy by Treasury Board. It is simply an agreement as to the way the Indian Affairs budget system is going to work. It simply works its way down to the local band level, where there are no decisions with respect to discretion
over the budget; and those institutions which are vital to them are constantly getting chipped away at and threatened.
Mr. Manly: Do individual band councils have the right to shift money from one area to another?
Chief Daniels: They have three categories in this province. One category is called the Consolidated Contribution Agreement, where you may shift around money if there are surpluses; the second category is called the Comprehensive Contribution Agreement, where it restricts the movement of dollars; and the other form is called the Single Contribution Agreement, where you cannot move any dollars. If you are a band manager, if you had a bad management last year you were singled out in the single contribution agreement; if you were a good manager, it was a reward-and-punishment type of approach to the budget process.
Mr. Manly: Is the movement of capital moneys to meet the shortfall in other areas done on a regional basis or do individual bands have the power to make those kinds of changes?
Chief Daniels: No, not to determine the capital. Maybe the region itself has authority. I know they were—I think this year—thinking of transferring $3 million from capital to O&M, which means fewer houses, less community infrastructure to cover shortfall in the O&M budget. But I think within ourselves the Indian band governments do not have that authority in terms of transferring capital dollars to O&M.
Mr. Manly: So there are really two effects from these cutbacks. First of all, there is a diminution of services; but, secondly, there is a real attack on the power of band councils to make decisions about the way the money is spent because in effect the cutbacks are made at the regional level.
Chief Daniels: Mr. Manly, over the last year I have seen so many control mechanisms, directives, circulars to circumvent authority of the chief in council in housing, O&M . . . We have engineers coming out; we have inspectors coming out. This is now getting crazy in terms of the control mechanisms that are being implemented on Indian people these days.
Mr. Manly: I wonder if you could give some kind of provincial overview of the relationship between Indian government and a secure economic base and indicate what initiatives are being taken to try to develop that base and how departmental cutbacks are affecting those initiatives.
Chief Daniels: Jay Kaufman, I will ask you to answer that.
Mr. Kaufman: In the document where we discussed initiatives of the federal government and the provincial government and the memorandum that was arrived at with the provincial government you will note two particular areas which
were agreed to as top priorities. One was the area of taxation and a full review of provincial taxation respecting Indian people; and the second one is in the area of economic development, a review of economic development programs. Those are with respect to the provincial government. So the all chiefs budget committee and the chiefs assembly have been particulalry focused on that at this particular time.
With respect to the federal initiatives, they have spent most at their energies attempting to negotiate a framework for dealing with issues like that and, of course, at this point have not achieved that framework.
Mr. Manly: Do you have any suggestions about the best way in which the federal government should be delivering economic development moneys?
Chief Daniels: Mr. Manly, the transfer of those dollars to Indian institutions rather than through the bureaucracy, I think, is a way of dealing with this matter—and the availability of funds to economic development because the funds available to economic development are very, very low across this country from the Department of Indian Affairs.
Mr. Manly: Should the funds be transferred directly, for example, to bands or to tribal councils, or do you see any possibility of some kind of province-wide development corporation run by Indian people? Have you any ideas on that?
Chief Daniels: Mr. Manly, I can only speak on behalf of DOTC. We have an economic development arm of DOTC called the Dakota Ojibway Development Group which is a corporation whereby moneys are funnelled through that corporation for our bands in terms of grants or loans. I think that is a mechanism that one can look at in terms of the distribution of those dollars.
Mr. Manly: Thank you, Mr. Chairman. I have no further questions at this time. Perhaps you could put me down for the second round.
The Chairman: Thank you, Mr. Manly. Roberta Jamieson.
Ms Jamieson: Thank you, Mr. Chairman. I have a number of questions. I think the brief poses a great deal of challenge to this committee, and I would like to compliment the witnesses before us on the fact that they have substantiated the brief before us in such a thorough manner. I Iiave gone through myself some of the appended documents and they demonstrate very well how the efforts have been frtistrated by the Indian people in this province, in particular to move ahead and make new arrangements with the Minister of Indian Affairs. I note the chronology of their efforts over the past year. There are a number of areas I would like to ask questions On.
I would like to start first in the area of the trust relationship. Mr. Oberle has touched on this somewhat, and I wonder if one of the witnesses would comment on this. We always have the concern in the minds of members that the Indians say they want to continue a trust relationship with the federal govern-
ment without agreeing to federal control, and there are some who feel that you cannot have both. I do not subscribe to that view; but we are here to hear your views, and I wonder if you would comment on how you, as chiefs, view the trust relationship between Indian people and the government.
Chief Daniels: Chief Charlie Constant will answer the question.
Chief Constant: On the trust relationship, the treaties placed the Government of Canada in a special trust relationship with Indian people, and in exchange for the surrender of land the Government of Canada entered into an agreement with the Indian people to provide for protection of these treaty rights. These treaties are sacred to the Indian people, and these rights and responsibilities must be recognized and entrenched in the Constitution. Human rights are recognized in the Constitution, and treaty rights for Indian people to reaffirm their rights and responsibilities of treaty must be recognized and entrenched in the Constitution. This is the most fundamental way, the Indian people believe, that these rights and responsibilities will be guaranteed.
For example, treaties made reference to the provision of medical and educational services. Historically, the nature and quality of these services have been determined by the Government of Canada, often with regard to available funding, not interpretation of the courts.
In defining and providing these rights, the Government of Canada has failed. Indian people define the treaties and trust responsibility of the federal government, including the fiscal responsibility, as a fundamental right flowing from the treaties. We are not asking the federal government to give us anything but are demanding what is rightfully ours through our treaties. Indian government must be guaranteed an adequate fiscal relationship with the federal government to enable Indian people to provide for priorities identified by Indian government.
Ms Jamieson: Could you just take that a little further? When you say you are looking for the right to Indian self- government to be entrenched in the Constitution, are you also looking for an obligation to be entrenched in the Constitution to provide funding to Indian governments?
Chief Constant: That is right.
Ms Jamieson: Thank you.
At the meeting in Long Plain yesterday we were all impressed with the developments of the Dakota Ojibway Tribal Council, but some confusion arose as to its role in self- government. I would like you to comment on how you see the role of the tribal council in relation to self-government and what is the role of the chief in the DOTC or any other tribal council.
Chief Daniels: I will have Chief Harvey Nepinak answer that question.
Chief Harvey Nepinak: Tribal councils are administrative services organizations developed and originated by Indian people to promote and facilitate self-government. Their role is essentially non-political except where the chiefs, at the direction of the band members, pursue issues related to the rights of Indian people. The tribal councils are mandated to assist band councils in the development and expansion of local control and self-government at the band level. This places the chiefs, as the board of directors, at odds with Indian Affairs’ policy and bureaucracy. In this respect, the role of the chiefs became political.
The role of the tribal council is to advise and assist band members in their hard and difficult task of pursuing self- government and self-determination. To date, and speaking on behalf of the tribal councils, it has been seen to facilitate self- government. We have a long way to go until we accomplish our goal of self-government and Indian government.
The tribal council, in effect, may change its role and mandate at the discretion of the band members. At this time, the tribal councils remain the administrative and consultative arms of the bands.
Ms Jamieson: Thank you. I think that clarification will be very helpful.
I notice you refer to policies of devolution from within the Department of Indian Affairs. I am sure you are aware of the minister’s latest proposal regarding Indian band government legislation. Some people may think the move towards using tribal councils, even as vehicles to help Indian government, may be dangerously close to Mr. Munro’s policy or his proposal. I wonder if you would clarify for the members your view of Mr. Munro’s proposal?
Chief Daniels: Mr. Chairman, some of my colleagues rehearsed some of the questions based on the questions asked in Ottawa at the first. subcommittee hearings. Yesterday, we rehearsed some questions and we are reading from our notes now.
In answer to Roberta Jamieson’s question on John Munro’s proposal on Indian self-government, the report developed by the Department of Indian Affairs fails to recognize some basic principles.
1. Indian nations have an inherent right to self-government.
2. This rightwas never surrendered or given up by Indian people and they retain it. This is an inherent right to self- government.
3. Indian government existed before the coming of the white man and quite capably provided a structure to direct and manage their affairs.
4. Before any changes in the Indian Act or the introduction of new legislation related to self-government, treaty and
aboriginal rights, including self-government, must be entrenched in the constitution. We have said this many, many times today.
5. In the Indian Act, the government’s Indian bill, Indian government is relegated to the status of a municipal government and fails to recognize that Indian government is based on a right rather than an authority delegated by statute or any other government legislation.
6. We reject the paper on Indian government based on the following: first, the government does not have the authority to govern us; second, Indian people must consent to any change that affects their inherent right to self-government; third, the government structure relationship suggested in this report has been developed by the Government of Canada without appropriate and necessary consultation and consent of the Indian people.
Ms Jamieson: Thank you. I wonder if you would turn to a different question? There may be limits to the way in which you address it. I wonder if you could share your insights into Indian self-government a bit further with the committee, at least insofar as the need for flexibility is concerned? I know Ovide commented that Indian people should not be forced to come to the table with a proposal for Indian self-government; rather, Indian self-government should be allowed to become part of the process of evolution, like every other government. Do you feel there ought to be flexibility in this regionally to recognise that what may be good, for instance, for southern Manitoba may not be good elsewhere? In this way, there will be flexibility and different approaches to different forms of Indian government in different parts of the country.
Chief Daniels: Ovide, do you want to answer this question?
Mr. Mercredi: There is a positive comment to be made about the proposal of the Minister of Indian Affairs. There is one little section in this document which recognizes that there is a real diversity of Indian people out here and for this reason any legislation which tries to define Indian government has to take into account this diversity in the Indian community. Of course, the answer is “yes“; any form or forms which evolve would naturally evolve from the Indian people and, therefore, would take into consideration the regional or community requirements.
Ms Jamieson: Thank you.
I would like to make a further comment. In the past we have heard that Indian people cannot go to Treasury Board; oh, no; each band cannot have negotiated arrangements similar to the White Dog Band in Ontario or other bands throughout the country. I think the administrative structure is not there; it is not there, quite frankly, because Canadian society does not yet recognize the need to accommodate Indian government. When they do so, these structures can be put into place. This speaks to the fact that Canadian society and the Federal Government choose to look at Indian people as just another group of
citizens, a special interest group, and they do not look at them as Indian governments. This is my own sort of gratuitous comment.
I would like to ask one last question which concerns a recent statement by the Prime Minister which he made in the Philippines last Saturday, January 15th. I think it is pertinent for you to comment on this because you will be going to the 37-2 conference and you are asserting Indian self-government. What do you think of this characterization of Indian people by the Prime Minister? He said, in the Philippines, and I quote:
If somebody came to Canada and complained about our treatment of the Indians or the Eskimos, or whatever it is, I would say “what did you come for?
In other words, it seems to me he is saying it is none of their business; these are Canada’s Indians and Canada is above international criticism.
Over the last year Indian people have appealed internationally and I wonder if you would comment on this characterization.
Chief Daniels: Mr. Chairman and Roberta, I will answer your question, or, rather react to that statement. Second, Mr. Chairman, I would like to elaborate further on our trust relationship through a statement by our legal adviser, Murray Sinclair.
Regarding the question by Roberta, I would like to emphasize to the committee that I think it is time for Canada, and especially Mr. Trudeau, to learn the following: first, we are not the Prime Minister’s children; we are not Canada’s private property with which it can do as it wishes. Second, we have rights in Canada as first nations. Our rights are internationally recognized and we hope Canada will get its relations in order so it can be proud of international scrutiny. We are glad, however, Mr. Chairman, that Mr. Trudeau spoke indirectly on our behalf. His answer implies that he and Canada are ashamed to discuss the Indian situation with foreign visitors. I hope the time comes soon when Mr. Trudeau can be proud to show that Canada has adopted and is practising relations with first nations which meet international standards fully.
Chief Bear: Just before Murray makes a statement with respect to the trust relationship, I would just like to make it clear that the tribal councils are not Indian government. The band councils are the Indian governments of this country. The tribal councils are the Indian institutions which we have effected to assist us in working toward true Indian government. It also helps us to better utilize the inadequate dollars we get from any government, and we have better utilized those dollars by way of pooling resources, education, economic development, health, child and family services, whatever it may be. It is not an assimilation program. It is an assimilation
program in that we may be assimilating the non-Indian society into Indian society. I would like to just say that it is not an Indian government, it is merely an Indian institution to assist us.
In regard to incorporation, the intention of the tribal is never to incorporate, but those are strings thrown onto us by the governments to keep us further under the control which they have had for ages. I must add that before the coming of the white man we had our own forms of Indian government. Our old cliche is that we only goofed up on our immigration policy. But with that I would like to now refer you to Murray Sinclair.
Mr. Murray Sinclair (Legal Counsel, Joint Council of Chiefs of the Assembly of Manitoba Chiefs): Just a matter on the aspect of the trust relationship that we want clear. When we talk about the concept of trust, we distinguish very clearly between a trust and paternalism. What Indian people are saying, and what they have been saying all along, is that this trust relationship they feel they have is not with the Minister of Indian Affairs, it is with the Crown; and the trust relationship they have with the Crown is that the rights of Indian people will be respected and that the rights that have been negotiated in the treaties will be respected and honoured. We have never negotiated paternalism. Indian people have not requested paternalism from the Department of Indian Affairs and they do not want it. What they want is respect for their rights and respect for their institutions, and to that extent they refer to it as a trust relationship.
Ms Jamieson: Thank you very much, Mr. Chairman.
The Chairman: Thank you, Roberta. Next I will call on Mr. Allmand for some questions.
Mr. Allmand: I want to start by saying that in your brief today, in your presentation, I found very much very useful to the committee, which will definitely help us with our work. There is one thing, however, on which I wish some clarification, and it is with respect to the documents you gave us on the budget reform. I have read the draft you submitted, which is noted as document number 5—there is no date on that one, but I assume that is number 5—and then I read the chronology of major events, which I agree with you is a long, tortuous process and would frustrate anybody. However, I then read what I believe to be the most recent response by Mr. Munro, which is document number 7, and I note that it was submitted on January 12, 1983. In the chronology the last entry says that on January 17, which is this week:
The Assembly of Manitoba Chiefs met in Winnipeg to consider the Minister’s proposed document of January 12. It is rejected by the Chiefs as being unacceptable and a decision is taken to return this document to the Minister in a form approved by the Chiefs, and which they are prepared to sign.
Well, I went through the original document you prepared, which is document number 5, and I looked through the minister’s document, which is document number 7, and put
them together side by side and I am at a loss to . . . Maybe it is me, because I read it quickly, but it seems that the minister has in nearly all the points that you ask for. Because I think this to be a serious matter, I intend to go back to Ottawa and pursue this with the minister to find out why this thing is not signed but I am really at a loss at the moment to see where there is a major difference between what you gave to the minister in document 5 and what after a long time, as I say, he finally sent back to you in document 7. Could you point that out to me, please?
Maybe you would rather do this somewhere else; maybe this is not the place to do it. I am trying to help, really, and that is why I am asking this question.
Chief Daniels: First of all, I guess we have been fighting with the minister on two issues: (1) he has been hiding behind a legal opinion from Justice, for him not to sign; (2) is that we have been fighting was in terms of words, where both of us have words that are meaningful to deal with the problem. Maybe at this time I will turn it over to Jay Kaufman to answer some of the technical questions where there are the differences which you may not see.
Mr. Kaufman: Mr. Allmand, let me say that with respect to the minister’s last response, although it was rejected . . .
Mr. Allmand: Document number 7.
Mr. Kaufman:—document number 7, the chiefs in assembly did see certain major benefits from this document and
therefore they will have a response, and obviously one that is constructive. But there are very significant differences. Part of the problem in the whole of these negotiations, as Chief Daniels has said, is a matter of words, who is using words and what the intent is, and the difficulty in arriving at some sense of confidence that the parties are discussing the same thing. We have had two agreements with Mr. Munro.
You see, one has to understand that this is simply not the outcome of a first-stage agreement. There was an agreement which is in there and signed by Mr. Munro. There was a subsequent agreement, which is the one you referred to initially and which was arrived at on August 19, in which he and the national chief and the chiefs of Manitoba formally agreed to and discussed a quick signing of the document. The Department of Indian Affairs then proceeded on both occasions to use legal advice, initiated by senior bureaucrats, to thwart these agreements. So to begin with, one must assume that there is something significant in the change from the basic agreement of August 19 to this latest response. And there are some important word changes.
For example, in the report we emphasize the shift from the word “negotiate”—which Mr. Munro was prepared to accept on August l9— to the word “discuss”. For example, with respect to the multi-operational planning process, his words, which were in the August 19 agreement, were “official involvement and co-operation”. Now the word is “consult”. The chiefs rejected the word “consult” and he accepted that. Now it is back in the document again. It was clearly understood that the initiative being developed by the Manitoba
Chiefs was not simply a Manitoba initiative; it was a national initiative involving the AFN and the Confederacy of Nations, and on three separate times the Confederacy of Nations has approved formal resolutions establishing the national level initiative.
The “furthermore” clause in the August 19 statement is clearly intended to convey that. Obviously, it would have been much cleaner if we could have sat back and said exactly what it was, but there was not that level of confidence that much could be changed in the document.
The new document he sent out makes no reference at all to a national initiative with respect to the AFN. The emphasis is on a regional initiative. When we first met with Mr. Munro in . June, he emphasized the importance of a national initiative; and suddenly, we see it is backing away. So the chiefs have rejected that, and the response is going to be in the form of a document they send back to him. It is a very clear, unequivocal statement in this agreement about a national initiative.
So there are potentially tremendous differences. The chiefs have agreed it is possible to work, perhaps, within the construct that has been sent back from Mr. Munro, because he is faced with the problem now of having a legal opinion which says he could not sign the August 19 agreement.
We have to assume all along here there are significant differences; and certainly, the whole concept of political negotiations is one which has been resisted most aggressively. Since Mr. Chenier is here, I want to point out that is not something… We refer to resistance in terms of political negotiations. Mr. Chenier was actively involved in those, and I think . . .
Mr. Allmand: Thank you. Now I understand enough to know the basis of the differences, and I will not pursue it any further here, Mr. Chairman. I will inform myself, with some of your representatives and Mr. Chénier to follow up on it. Thank you very much.
The Chairman: Thank you, Mr. Allmand. I will now call on Mr. Schellenberger.
Mr. Schellenberger: Thank you, Mr. Chairman.
I know you are very proud of the plan you have worked out, and you should be. I hope things can be worked out, as Mr. Allmand is attempting to do.
I want to just pursue one thing, which is causing me some difficulty; that is, the brief continues to say, before we move on Indian self-government, that concept should be entrenched.
As I see it, there are two things in what we are attempting to do. One is through the treaties, the band assets. They are
described as land and certain assets that go with land, and they or very important. The things called aboriginal rights are to be defined.
the other thing in there is the delivery of services. They are also described in the treaties and have been an ongoing thing. Through the Indian Act, the Department of Indian Affairs has assumed the responsibility for the delivery of those services. A large bureaucracy has developed to deliver those services: the public service in Ottawa, the regional directors and their groups in each province. I think they are called directors- general.
When we look at the budget in all the areas, the welfare type of programs are increasing in amounts, while the employment type of programs—educational programs and so forth —are decreasing in amounts of money.
Now, we have a limited budget in these restraint times. I know Indian people across the country are asking for more money, and I think that is a legitimate demand. So if we have a restraint difficulty of deficits in the national Parliament, how do we get more money, which is so much needed?
It seems to me one of the ways is to eliminate the very expensive public servants who are delivering these services to 1 people. You are attempting to design that type of program, a five-year plan and more administration by tribal councils, so we can eliminate some of these people. You pointed out yesterday where that is not happening, for whatever reasons; and we will try to find that out.
Based on that introductory statement and your brief, my question to you is: You are saying to me in yourbrief you would like to be a part of the designing of that budget, the designing of the blue book. It seems to me, if that is the case, we are not eliminating that large bureaucracy. We may be able to do it under your plan in the regional area, but not at the national level.
Why would you not like to develop the budgets that are necessary for education, economic development, band government, which you say should be funded—it is essential it be funded—the tribal council and so forth? Why would you not want to make those kinds of submissions directly to departments like the federal department of housing, the Secretary of State as far as education is concerned, and have the Department of Indian Affairs only look after the trust obligations until that can be entrenched in the constitution in some way; by that method, perhaps eliminating a lot of public servants and making more moneys available to fund something so essential as the tribal councils and the ongoing process of developing a band self-government or an Indian self-government?
Chief Daniels: Perhaps I will ask Jim Bear to respond to that question.
Chief Bear: That is part of the thing in respect to Indian self-government. It is pretty hard not to talk based on the type of questions and the type of things we do want to do.
On the one hand, I do not know if we are saying: Do away with the Department of Indian Affairs, entirely. That is a thing we will look at further through all negotiations with the federal government; but surely, we do need these institutions we are developing.
I must say, in the last 10 or 15 years, after being subjected to oppression by the governments, we have now taken on some semblance of local control at the band level, albeit it is a dog by-law. That is about the extent of it. Surely, self-government has to be a little more than that; and I think that should be respected by the federal government.
Certainly in respect to education, we will establish those institutions. We have established that institution of education. In economic development, we will possibly be doing those things.
In the Southeast, we do have an economic development officer whom, with all due respect, we will probably be losing if the financing does not continue. The band government is very, very limited in dollars going down to the bands, where they really should go.
Of course, once we get all these Indian institutions in place . . . Some of them are; but that is going to be up to the ongoing process, the ongoing negotiations between us and the federal government to better identify those for the better utilization of that dollar that is supposed to go down to the people it was really intended for, when it was released.
Mr. Schellenberger: Without making any changes in the Indian Act and without in any way compromising your position before the constitutional conference, I think it is possible to make changes in better delivery of services that is more efficient, with not so much waste in duplicate bureaucracy. It is not only on the federal government side; but as well, you are setting up the means to a government, as far as I could see in the school administration. We talked about that this morning.
On economic development, you have officers; you have the means. Given the chance, I would think that could grow very quickly.
The problem is funds. Perhaps what the committee can suggest very quickly is some way to move those funds more efficiently without in any way compromising positions at the
constitutional conference or changing the Indian Act, until we have some guidance on constitutional entrenchment. Then, I suspect we can go deeper into the movement towards Indian self government. That is what I see you are asking us.
Again, do you think it is feasible to eliminate the Department of Indian and Northern Affairs as far as delivery of services is concerned, and do that through the bands going directly for funds, through whatever organization, whether it is the tribal councils or the Manitoba all-chiefs, for those funds, and then distribute them and be accountable to the bands for that distribution? It would seem to me we could eliminate very many very expensive public servants and use those funds then to better the Indian position, other than welfare and those things which do not go anywhere.
Chief Bear: That is exactly the intention of our Indian institutions. That is exactly the direction we are going in. It is working, and it is working to the betterment of the Indian people, and I think of Canadian society as a whole.
Mr. Schellenberger: Could you have some protection, then, if we eliminated that part of the Department of Indian Affairs and used those funds in other ways for Indian people—set up some type of national institution to assist the various provinces, or various tribal councils, in making those requests for funds, or those demands for funds, that are their right? For example, we have a lot of unemployment on reserves and yet very little of the Canadian manpower budget is going towards Indian employment. In fact, Indian people are not even considered in our national unemployment statistics. Either you are a Canadian resident who is unemployed or you are not; and it seems unbelievable that you are not even considered in that sense. But there should be a demand, as you are a per cent of the population with very high unemployment, to get those funds. I was passed a note here saying some kind of Indian fiscal arrangements commission, whatever we want to call it, could assist bands or tribal councils in going directly to departments for funds and eliminate large bureaucracies, duplicate bureaucracies.
Chief Bear: We will refer that to Jake.
Mr. Kaufman: One of the proposals that was advanced in the paper talked about some kind of central attempt, through the creation of an Indian affairs envelope or some other institutional framework, which would identify those resources which were going to Indian people, not simply within the federal government but also within fiscal transfers to the provinces. Similarly a need exists at the provincial level to get
a handle on what is going there now. So there is that kind of clue, which speaks to a kind of problem which obviously exists.
One of the dangers—and some of the questions you pose, there are not simple answers to; I think that has to be said— one of the dangers of dispersal of program responsibility when you are talking about the many cases of institutions like tribal councils and bands which are in the process of developing is the problem of co-ordination, access, and the likelihood, in our judgment, that the dispersal of funds will in fact result in a decrease in funds.
The third issue you raise, about a new institution—I think it is an interesting idea. We have not, in the context of the budget committee, explored all these issues, but one of the things clearly being said by the chiefs is that they are not prepared to administer poverty. There is no way in which, it seems to me, the Indian leadership in this country, the Indian people, are going to put themselves in a situation where they are administering poverty and playing off one group against another in the way the Department of Indian and Northern Affairs often does now.
So I think the issues there are extremely difficult to address and resolve and they have to be looked at very carefully. That is why you will see in our position that there are basic conditions in the levels of services. There is a great emphasis on the guarantees of adequate levels of services, equality of services, access to services, and so on. If you are talking about these kind of issues, you cannot simply start from the base you are given now. You have to deal fundamentally with the questions of these services as they exist.
For example, in the transfer of educational programs, one of the things that has happened is that the level of resources which are transferred from the department for our Indian people to administer these programs is substantially less than exists in the first instance. Well, if that is going to be the game, who in their right mind would want to play it?
Mr. Schellenberger: Yes, and you are right. But what worries me about the envelope process, if we look at what has happened in the Indian Affairs department, is that certain moneys have, as the Auditor General said, disappeared. So when we look at what is happening in the department, the department is hiring—I do not know if I can say hundreds of people, to look after the internal workings of the department; which means to me they are trying to account for money. If you look to an envelope process in Ottawa, you must have a bureaucracy to account for the money. We have that in all the departments now, including the Indian Affairs department, which in my opinion duplicates a lot of other departments. So
if it were possible to set up a national accounting bureau of Indian people which would go directly to departments and not in any way lose any of the money we are saving by eliminating this duplication, we would have a larger budget.
That is the question I am asking when you tell me that you want an envelope process. I worry about that, because we are not eliminating any of the problems with that.
Mr. Kaufman: I think some of the concerns you have are perfectly valid concerns. I think as well you appreciate that in approaching this problem, we are approaching it at a point in time, and in no sense was the proposal for an envelope intended to resolve the problem. What is important, it seems to us from the experience here in Manitoba, is to get a handle on the level of resources that are going to Indian people, because the clear experience is that not only are they declining within the context of Indian Affairs, but generally; and this seemed to be an expeditious way of focusing that issue.
Mr. Schellenberger: The only last comment I would make and this has come through not only today but yesterday—is that it seems ridiculous to me that in the first instance the government is saying that we should move towards more Indian self-government, and then at the same time the process of moving towards self-government is being cut back. Tribal councils, educational, economic development officers you are trying to start with, just to begin the process—the funding is not there; and that just makes no sense at all. Instead, we are hiring people to deal with internal matters. That causes me some difficulty, and I appreciate that that has been pointed out. That is very valuable.
The Chairman: Thank you very much, Mr. Schellenberger.
I will ask Mr. Chenier for some comments.
Mr. Chenier: Mr. Chairman, because of my very close relationship with the all-chiefs budget committee, I will stay away from that area. But I would like to go to something else. This morning the women’s council was here, and a number of questions were posed to them that they indicated would be answered by the chiefs this afternoon. They made a number of assertions, one in particular where they indicated that the Indian Act should be modified. It has not been stated here, but in other forums, or in other meetings that we have had, the chiefs or the witnesses have indicated to us that they do not want the Indian Act to be changed. I would like to know, Mr.
Chairman, from the witnesses here, how the chiefs of Manitoba feel about that.
Mr. Mercredi: I will respond to Mr. Chenier.
Earlier we had indicated that any legislation would of course have to contain Indian consent. That, I assume, would apply to or could be extended to any future amendments the government might be contemplating as far as the Indian Act goes.
Mr. Chenier: I feel there is a very close relationship—that is not a pun, by the way; I am talking as a group . . . between the women’s council and the chiefs of Manitoba. How do they assert their influence on you, or what kind of liaison exists between the women’s council and the chiefs of Manitoba and so on? Could somebody comment on that?
Chief Bear: I guess the only thing I can say to that, Mr. Chenier, is that the Women’s Council are presently, as they stated this morning, I think—I was not here for their presentation… just organizing. They will probably be one of the Indian institutions that we will be working with, but they will work under the umbrella of our overall political institution. We will be further defining that directly with the Indian Women’s Council. ‘
Mr. Chenier: I have two other short questions. Again, through our deliberations, we have heard certain groups of people indicate to us that the Charter of Rights in the Constitution should not apply on reserve lands. What is the opinion of the Chiefs of Manitoba on that issue?
Chief Bear: I will get our lawyer to answer that.
Mr. Sinclair: I think there is a legal question as to whether Part I of the Constitution is going to apply to the rights that are created, or recognized, by Part II of the Constitution. We interpret the treaty and aboriginal rights provisions to come within Part II. Probably, by virtue of the current interpretation of Section 25 of the Constitution, the Charter of Rights would not apply in the area of treaty and aboriginal rights—as a matter of interpretation.
Mr. Chenier: It will have to be tested in court at one point, I suppose.
Mr. Sinclair: I suspect that you are right.
Mr. Chenier: Okay.
My last question, and I guess it is just yes or no on this one: I would like to ask you if you fully endorse the document that was presented to us this morning by the Women’s Council.
Chief Bear: We would have to go over the document before we fully endorsed it. I understand that they alluded to the fact
that they do support what we are doing and I can only assume that, yes, they will be working under the auspices of the Indian Chiefs of Manitoba and maybe to that part, yes.
Mr. Chenier: I was under the impression, though, from what the witnesses said this morning, that the document had been studied by the chiefs; from Mr. Bear’s answer, I do not gather that any more.
Chief Bear: There was a brief discussion, but it was not as lull as we would have liked.
Mr. Chenier: Okay.
Mr. Sinclair: Mr. Chairman, if I might: It seems to me, Mr. Chairman, that the position put forward this morning was that the question of membership should be one that local Indian government should decide. To that extent, I believe the Chiefs of Manitoba are prepared to endorse that position.
Mr. Chenier: Yes, I think that was made clear. But I think the thing is that, in the document that was presented to us this morning, it went beyond that. They state clearly at one point in there, I believe, that membership, yes, would be the responsibility of the band or the council, but in some areas they state very clearly—for instance, about reinstatement, they say that those women who have had their status taken away through intermarriage, including their children, should be reinstated. So it goes beyond just saying that the membership is the responsibility of the band. Here they seem to imply that this has to happen before the granting of that right to decide on membership is given to the band. That is all.
The Chairman: Did you want to comment on that? I am sorry.
Mr. Mercredi: Mr. Chenier, perhaps just to clarify further the presentation that was made this morning, my knowledge of it is that the women did advise the committee that differences of opinion could arise between them and the self-government, which apparently they respect. The meeting that they had with the chiefs, to which they referred this morning, does not by itself, and of itself, mean that their document is endorsed. Nor does it mean that it is not supported. The Indian women can freely express their opinions, as they indicated in that document, but their respect for Indian government is not to be interpreted by you or by the committee as an indication that on all fours there is agreement in their presentation. That issue was not addressed by the chiefs.
Mr. Chenier: Thank you very much, Mr. Chairman.
The Chairman: Mr. Oberle.
Mr. Oberle: I would like to ask a supplementary question on that. As you know, the committee prior to this one dealt exclusively with the question. The only way we could get a set of terms of reference from the government was by addressing
ourselves to the question of discrimination against women in the Indian Act first, and reporting on that first, before being permitted to study the larger question of self-government, and so on. The committee held its deliberations and reported to Parliament, as you know. Have the chiefs been able to study the report of the committee and have they discussed it?
Mr. Mercredi: Not for the purposes of this hearing. The terms of reference with which we were presented did not include any discussion on discriminatory provisions of the Indian Act. The focus, as I understand it, was on self- government. So, obviously, we did not prepare for those kinds of presentations to this committee.
Mr. Oberle: Just briefly, what the committee said was that the act, as changed… it goes through a whole series of sections in the act that will have to be changed in order to remove any discrimination against women from the act. But the committee decided to go further and recommended to the government not only to change the act to remove these discriminatory clauses, but also to make it apply retroactively and to insist that band councils reinstate women that have been disentitled. If the government were to accept these recommendations and propose legislation to affect these changes, can you tell me whether the chiefs would grant or withhold their consent to have these changes made to the Indian Act? You said earlier that no changes should be made without Indian consent and I agree with that.
I also, incidentally, agree that what the committee has done has been that, in attempting to remove one wrong, and it has introduced another even more serious wrong by telling band councils what their membership should be. We fought bitterly, but lost. The question is, would you give your consent to such changes in the Indian Act?
Mr. Mercredi: Again—and this is not to be evasive—this is not really the proper forum, I think, in which to give that kind of consent to any proposed changes in the Indian Act. What. I would recommend to you, though, is that, if government is actually serious about consent before amendments are made to the Indian Act, perhaps you identify the groups to which that question ought to be directed. You surely will not get an affirmative or a negative response from me individually and, as an individual, I doubt very much if you will get a collective response from the chiefs here as well. My recommendation to you would be simply to refer that question to the Indian political leadership in the country.
Mr. Oberle: You see, the problem is that Parliament thinks this kind of a forum is an important forum of consultation. So recommendations which emerge from a forum like this would have the consent of Indian leaders, because you could talk forever. There was a similar forum to this where this particular question was discussed, and it was the majority view of this committee that the Indian leaders who appeared before us wanted to do what the committee finally did. So you are suggesting another forum now to re-open that question? It gets very tedious and cumbersome.
Mr. Mercredi: What you are asking for is an indication of support, or some consent to the recommendations being advanced by this committee to Parliament. What I am telling you is that this is not the forum in which to ask that question or to seek that support. What I suggest is that, if it is important to you and, obviously, it is, you should direct that question to the Indian political leaders in the country, if that is not so burdensome a project.
The Chairman: I think I had better interject here. I think the statement made by the witness has some validity. After all, another subcommittee has reported to Parliament. So far, the government has not acted, although the minister has said that he probably will. If he acts, then his action must follow the normal legislative process. Part of that is reference to the standing committee at which those who are directly concerned with those changes in the act will be able to address themselves to those changes and, also, find out precisely how the government intends to implement them. I quite agree with the witness that it is not the process we are undertaking at this moment. There is a continuing aspect from the first subcommittee, and that is the question of membership as it relates to Indian self- government—the membership in bands. That is the connection. I do not think the issue itself is one which is central to the inquiry of this committee. Chief Jim Bear wants to make a statement.
Chief Bear: Just in response as one of the chiefs, I think it is a thing we would certainly consider at my band. As an Indian leader, I would have to take that up with my membership, and should the government be so generous—and the MP3 at this table state that sufficient financial and other resources, including the land base be expanded—then we would probably seriously consider it.
The Chairman: Thank you, Chief. Now, Marlyn Kane, we get back to you.
Ms Kane: Thank you, Mr. Chairman. Yesterday I asked the DOTC a question and was reminded, and rightly so, that theirs was not the political organization to hear it, and that I should direct it here today. So this comes out of the DOTC presenta-
tion. In point No.3 of their presentation, where they stated that more jurisdictional authority should be given to band councils within the boundaries of the reserves, the brief states that, for example:
matters relating to Indian government, including sections of the act having to do with land surrender and disposition of reserve lands . . . should be dealt with through an ongoing process with the federal government.
I wonder if one, or all, of the chiefs could comment as to what kind of process, or processes, you have in mind to deal With that kind of thing.
Mr. Sinclair: If I might respond on behalfof the chief, there is a primary difficulty with the question of the ongoing process, in that the current constitutional provisions regarding amendments to the Constitution require provincial involvement. The chiefs of Manitoba are of the view, and have been. that their relationship is with the federal Crown; that their rights are to be negotiated with the federal Crown and, accordingly, that is the initial position they take. They want to involve themselves with the federal Crown to ensure that their rights, as they understand them and as they want them, are protected adequately.
But we have to overcome that hurdle of provincial involvement and, accordingly, the ongoing process is going to have to take into account provincial involvement; accordingly also, the initial position will be that the Indians of Manitoba will also be involved in a process with at least the Province of Manitoba, and will be encouraging involvement with other provinces 85 well on behalf of other Indian groups. But that is primarly for the purpose of informing the provinces of our demands.
Ms Kane: Okay. I guess the way that I was reading it here, it seemed that the ongoing process referred to was not having to do with the constitutional debate; I read it as having to do with current issues. I think it was Mr. Mercredi earlier, Who talked about the fact that we do have current situations which have to be cleaned up, and I totally agree with him. I guess, again, the way I read it was that the DOTC was proposing an ongoing process—that is, sort of not a capital “O” ongoing process for constitutional issues, but one to deal with the issues we are having to encounter now. Did I read it wrong then?
Mr. Sinclair: Well, to be quite honest with you, I was not involved in the preparation of that submission; I was not there when it was presented. I do not know what they were intending to get at. Perhaps in light of the nature of our discussions among ourselves in the last few months, whenever there was talk about an ongoing process, it immediately jumped to mind to discuss the constitution. Undoubtedly, there are issues which will have to be cleaned up very shortly in the Indian Act, and the chiefs are of the view that they must sit down with the federal government in order to do that; that it will be a two-party process between them and the federal government.
Ms Kane: To deal with the current Indian Act?
Mr. Sinclair: To deal with the issues raised in the Indian Act. That is right.
Ms Kane: Okay. Do you have any idea as to how you would (it) that?
Mr. Sinclair: How?
Ms Kane: Like, how would you carry on this two-party arrungement—these discussions, or whatever? You are not at that stage yet.
Mr. Sinclair: I suppose they would sit down in a room and talk about it. I do not know what you are getting at.
Ms Kane: I guess I was just wondering, as I said yesterday, whether the idea was to carry on activities such as this—that is, to hold more hearings or conferences, or what.
Mr. Sinclair: The primary importance and thrust of the Indian activities from Manitoba’s vewpoint in the near future will be to deal with constitutional matters. They do not have immediate plans to deal with amendments to the Indian Act per se. That is undoubtedly going to have to be addressed, however, during the constitutional discussions.
Ms Kane: Okay. Thank you.
Chief Bear: Just further to that, I would say that perhaps the ongoing process in regard to that would be with the Indian government of Manitoba, our AFN organization, and the federal government, in respect to the unfinished business. But that will be a bilateral process with the exclusion of the provincial people.
Ms Kane: I see. At another place in the brief you state that the federal government should extend services to Indians “off reserve”, for example. Do you have any ideas as to how that should happen? Should it really be the department at this time? Do you have any ideas as to whether or not those services could be provided out of the tribal councils or directly from the bands?
Chief Bear: I guess MIEA would be an example of how such it thing could happen. The on-off-reserve question, of course, is what the federal and provincial people brought about and not the Indian people themselves; and, regardless of where the Indian is, he does not become a white man as soon as he leaves the reserve boundaries. That is how we take it. Of course, we will be further talking on the urban situation at a later date and by whatever mechanism—whatever we decide in the end to do.
Ms Kane: For the most part, in this province are Indians off reserve allowed to vote in band elections, for example?
Chief Bear: It varies on the reserves for various bands. I think there is one reserve a few miles from mine where they do allow the people to vote even though they do not reside specifically on the reserve.
Ms Kane: Okay. My last one, and maybe you have already answered it, and then you can tell me that you did. I guess again it has to do with process, small “p”. In your brief on pages 20 and 21 you talk about the fact that the Manitoba budget committee should have… or there should be full Indian participation. You talk about Indian input in terms of the whole budgetary mechanism, etc., and at a national level. How do you envision that type of thing happening? I know you have your budget committee, and presumably all the Indian groups across the country may pursue that route as well; and then you do state you include Assembly of First Nations, and then of course you have the federal government side.
Do you have any ideas as to how you would in fact participate in the budgetary mechanisms?
Mr. Kaufman: To give you a concrete idea of what is on the table right now, it is to sit down with the Minister of Indian Affairs or his political designate and negotiate supplementary additions to the regional budget. In other words, there is a negotiating mechanism and it also would involve some basic terms and conditions for entering into those negotiations and the specifics of a mechanism.
So we are talking about sitting down across the table and negotiating budgets directly between the government and Indian people.
Ms Kane: Okay. Would you see each province and/or territory doing it one by one, or would you perhaps designate just somebody within the AFN to do that. I guess I am just trying to visualize. Would there be 12 Indians representing, say, 12 Indian budget committees and sitting down with people in Ottawa to determine budgets?
Mr. Kaufman: I think we should be clear that what this process is intended to do, at least from the perspective of the budget committee, is not determine band budgets. It is to attempt to negotiate levels, priorities, conditions under which bands would be receiving funds . . .
Ms Kane: Of Course, I do not expect over 500 chiefs and councils to send representatives there, but would you do it on a region by region . .. ? I guess there is going to be so much money there, and could you in fact end up competing, say Manitoba competing with B.C., over whatever funds are there?
Mr. Kaufman: That in fact happens now.
Ms Kane: Yes, it does.
Mr. Kaufman: You have this great competitive rush by the various regions and the trading off of funds from one region to another and so on.
Ms Kane: But it is the civil servants deciding on the amounts. What you are proposing is that the Indians be deciding on the amounts, and I am just wondering if you would be pursuing a similar route then that DGs do now.
Mr. Kaufman: The thrust of our proposal is to have at the national level a budget mechanism which would deal with those issues which are national in scope. That would imply, obviously, some attempt. to resolve within the national mechanism, which involves the regions through the confederacy of nations, what budget priorities are, what the aggregate levels of budgets ought to be, and there will have to be some
It implies some consensus about broad levels. It does not imply necessarily anything beyond that. It should be said, in terms of these larger questions, that the Assembly of First Nations has established a committee on budget and fiscal reform, and this sort of detailed type of question, how that will be worked out—one of the mandates or one of the purposes of that committee will be to look more closely at that issue, because there are problems, obviously. You are sort of alluding to difficulties among both regions and when we go between regions we can go to tribal areas and we go down to the bands, and there is this massive problem of a limited pot of money and competition over it.
We said very clearly to Mr. Munro that the budget committee was not going to get involved in the process of allocation of funds to bands precisely because, in their judgment, under the existing system the essential power to determine in the last instance—in many instances in the first instance—budgets rests with the department. So that relationship between the Department of Indian Affairs, at least in the short run, and bands would continue to some extent.
Ms Kane: Okay. Thank you.
The Chairman: Jim Manly, did you have another question? That is it? Okay.
Any further questions? All right. There being none, again I thank the council of chiefs and the budget committee of the Manitoba chiefs for persevering with us in a lengthy round of exchanges. I think the committee believes that it has been a very worthwhile exercise.
We are grateful to you for all of the work that has gone into the preparation of this submission, along with the supporting documents.
Thank you very much.
Chief Bear: On behalf of the chiefs of Manitoba, we thank you for giving us the opportunity for this presentation, and we certainly look forward to your total support, and cut out the bureaucrats and we certainly will see . . . We thank you.
The Chairman: Thank you very much.
I would like now to call on Chief Louis Stevenson, Chief Bill Traverse and Mr. Robert Daniels.
While they are coming to the table, we will take a very brief break.
Ms Jamieson: Mr. Chairman, just before we go, could I indicate to the joint chiefs council that I think this committee ought to examine the fiscal crisis that you outline in paragraphs 35 to 56 of your brief and interpret our terms of reference, which include reviewing all legal and related institutional factors affecting the status, development and responsibilities of band governments, to include a report showing how the Department of Indian Affairs and federal policies operate to impede and otherwise undermine Indian efforts to run their own affairs, and I urge my colleagues to have a closer look at this.
The Chairman: Thank you, Ms Jamieson. We will.
The Chairman: The Special Committee on Indian Self- Government resumes its work by calling the Interlakes Tribal Council who have a number of presentations or statements to make to the special committee. There have been some changes in the names that I previously announced and just so that we are aware of the persons whom the special committee is meeting, I would like to ask Larry Amos, who is the Tribal Administrator, to introduce the group and then indicate how the tribal council wishes to proceed with their documents. Mr. Amos, please.
Mr. Larry Amos (Tribal Administrator, Interlakes Tribal Council): Thank you, Mr. Chairman.
We, at the Interlakes Reserve Tribal Council, have our own political organization, the Brotherhood of Indian Nations. Chief Raymond Swan, the fellow in the middle, will be making the presentation on behalf of the Brotherhood of Indian Nations. Chief Louis Stevenson of the Peguis Indian Band will be making a presentation on behalf of his band. Chief Edward Anderson from Fairford, will be making a presentation for the Anishinaabe Child and Family Services. So with that, I would like to introduce the people starting with Robert Sutherland, Councillor, Peguis Indian Reserve; Clarence Daniels, Economic Development Officer, Peguis Indian Reserve; Chief Louis Stevenson, Peguis; Chief Raymond Swan, Lake Manitoba Band; Carrol Hurd, Senior Legal Adviser for the Brotherhood of Indian Nations; Chief Edward Anderson, Fairford Band; Robert Daniels, Director, Anishinaabe Child
and Family Services; Chief Edward Omeara, Lake St. Martin Band and Eric Robinson representing the Brotherhood.
So with that I will turn it over to Chief Swan.
Chief Raymond Swan (Chairman, Brotherhood of Indian Nations): We, the Chiefs of the Brotherhood of Indian Nations, present to you a statement of our position on Indian government.
The fundamental position of the Indian nations who make up the Brotherhood rests upon and is reflected in the Charter of Rights (1980), and the Treaty and Aboriginal Rights Principles (1981), and the Five Point Resolution passed by the Assembly of First Nations, April 1982.
The constitutional relationship of the Indian nations with the Crown in the right of Canada was laid out in the Royal Proclamation of 1763, the treaty making process and the trust responsibility of the Crown.
However, the Indian nations in consenting to ceding land through the treaty process in return for protection by the stronger nation did not surrender their inherent right to govern themselves.
The task of this subcommittee, from our viewpoint, is fourfold and those four items are the recommendations from the Brotherhood to the subcommittee.
One, recommend legislation to the Parliament of Canada recognizing (not devolving) the political and legal right and authority of our Indian people to govern ourselves—a right of which our people never gave up.
Second, recommend, in joint consultation with the Indian nations, procedures and processes which can describe and/or prescribe the general rules by which the Indian governments, federal and provincial governments will work and function in a harmonious relationship on those issues where there will be, and no doubt are, conflicts in current jurisdictions.
Three, in joint working relationship to determine the need and the description of those funding resources necessary to any political order to function effectively, responsibly and accountably to the citizens of our nations.
Fourth and last, to recommend through legislation ways and means for the full recognition, adherence and compliance of the federal Crown in its trustee responsibility to Indian people.
Statement by Chief Swan, Brotherhood of Indian Nations:
The Brotherhood of Indians, which is composed of nine bands with over 8,000 members bases its position on the source, function and jurisdiction of our governments on the charter adopted in December, 1980, Treaty and Aboriginal Rights Principles of November, 81, and the Five Point Resolution in April, 1982, by the Assembly of First Nations in Penticton, British Columbia.
No doubt members of this subcommittee have copies d have read with care these basic documents. However, I wish to include them for the record in this presentation by the chiefs of the Brotherhood and to read them out for you.
We, the Original Peoples of this land, know the Creator put us here.
The Creator gave us laws that govern all our relationships to live in harmony with nature and mankind.
The laws of the Creator defined our rights and responsibilities.
The Creator gave us our spiritual beliefs, our languages, our culture, and a place on Mother Earth which provided us with all our needs.
We have maintained our freedom, our languages, and our traditions from time immemorial.
We continue to exercise the rights and fulfill the responsibilities and obligations given to us by the Creator for the land upon which we were placed.
The Creator has given us the right to govern ourselves and the right to self-determination.
The rights and responsibilities given to us by the Creator cannot be altered or taken away by any other nation.
TREATY AND ABORIGINAL RIGHTS PRINCIPLES
1. The aboriginal title, aboriginal rights and treaty rights of the aboriginal peoples of Canada, including;
a) all rights recognized by the Royal Proclamation of October 7, 1763;
b) all rights recognized in treaties between the Crown and nations or tribes of Indians in Canada ensuring the spiritual concept of treaties;
c) all rights acquired by aboriginal peoples in settlements or agreements with the Crown on aboriginal rights and title;
are hereby recognized, confirmed, ratified and sanctioned.
2. ‘Aboriginal people’ means the First Nations or tribes of Indians in Canada and each nation having the right to define its own citizenship.
3. Those parts of the Royal Proclamation of October 7, 1763, providing for the rights of the nations or tribes of Indians are legally and politically binding on the Canadian and British Parliaments.
4. No law of Canada or of the provinces, including the Charter of Rights and Freedoms in the Constitution of Canada, shall hereafter be construed or applied so as to abrogate, abridge or diminish the rights specified in Sections 1 and 3 of this part.
5. a) The Parliament and Government of Canada shall he committed to the negotiation of the full realization and implementation of the rights specified in Sections 1 an and 3 of this part.
b) Such negotiations shall be internationally supervised, if the aboriginal peoples party to those negotiations so request.
c) Such negotiations, and any agreements concluded whereby, shall be with the full participation and the full consent of the aboriginal peoples affected.
6. Any amendments to the Constitution of Canada in relation to any constitutional matters which affect the aboriginal peoples, including the identification or definition of the rights of any of those peoples, shall be made only with the consent of the governing council, Grand Council or assembly of the iginal peoples affected.
7. A treaty and aboriginal rights protection office shall be established.
8. A declaration that Indian governmental powers and responsibilities exist as a permanent, integral fact in the Canadian polity.
9. All pre-confederation, post-confederation treaties executed outside the present boundaries of Canada but which apply to the Indian nations of Canada are international treaty agreements between sovereign nations. Any changes to the treaties requires the consent of the two parties to the treaties, who are the Indian governments representing Indian nations and the Crown represented by the British government. The Canadian government is only a third party and cannot initiate any changes.
FIVE POINT RESOLUTION
1. We attend in our own right, not as invitees of any other government.
2. Our participation must be full, equal and on-going at all levels of such discussions and their preparatory meetings.
3. Our representatives are to be chosen by us, not by other governments.
4. No decisions affecting our rights may be made without our consent.
5. We decide on how our consent is to be obtained.
Any consideration of the nature and function of Indian governments by this subcommittee must be built on these fundamental principles. Furthermore, even though the Crown in right of Canada has consistently over the last two centuries violated these principles, we, the Chiefs of the Brotherhood, maintain that in law these fundamental principles have been recognized and affirmed. In order, therefore, to put our perspectives in place, I wish to place before you some of those fundamental constitutional issues and to indicate as clearly as we can not only the basic constitutional relationships between Indian nations and Canada, but also the obligations of the Crown to Indian nations.
In a document entitled Memorandum of Law the Chiefs of the Brotherhood, who were then a part of the Four Nations Confederacy, laid before the Attorney General of Great Britain our arguments and perspectives which stated clearly the nature, powers and authority of Indian governments and the legal relationship that exists between our nations and the Crown.
The constitutional history of Canada begins with Great Britain as the primary colonizer and the Indian people as the original nations of the lands. It is the fundamental laws and compacts involved in this relationship which must commence our discussion. It was on the basis of these initial compacts that the then provincial government and later the Federal Government was founded and eventually was able to consolidate power and authority under the then B.N.A. Act. That the articles of cession remain as a matter of fundamental law, sacred nd inviolable, according to their true intent and meaning, is a very old principle, enunciated by Lord Mansfield in the celebrated case of Campbell V. Hall (1774, 1 Cowp. 204.)
Throughout the eighteenth and nineteenth centuries, the Indian nations occupying Canada formed historical alliances, linking them and the Crown in an exchange of mutual obligations. From the outset and throughout the entire period of colonization the Crown recognized and assumed an overriding obligation to the Indian nations to acquire Indian land and political alliance only with consent of the Indian nations through bilateral negotiations culminating in formal treaty.
This principle was formalized by Britain with the Royal Proclamation of 1763. By the terms of the Proclamation a general prohibition was placed on the settlement of unceded Indian lands, until the lands were yielded up to the Crown through consent of the Indian nations. Only when land had been voluntarily ceded by the Indians was it available for settlement and to be governed by the legislative authority of the local government.
Consistent with the fundamental principle contained in the Royal Proclamation, over 80 treaties were concluded between the various Indian nations and the Crown. Although the terms of the treaties vary, all treaties recognized the sovereignty of the Indian nations to conclude the consensual compacts upon which the Indian nations and the Crown were to co-exist forever.
The sovereignty of the Indian nations was to be limited according to the express terms of the treaties. Crown representations at the time of treaty making made this quite clear. For example, the Anishinabek Nation was addressed in the King’s name by the Lord Simcoe, the Governor of Upper Canada, June 22, 1793. He told the chiefs:
Children and brothers;
These authentic papers will prove that no King of Great Britain ever claimed absolute power or sovereignty over any of your lands or territories that were not fairly sold or bestowed by your ancestors at public treaties. They will prove that your natural independency has ever been preserved by your predecessors and will establish that the rights resulting from such independency have been reciprocally and constantly acknowledged in the treaties between the Kings of France formerly possessors of parts of this continent, and the Crown of Great Britain.
It was, and continues to be, of fundamental importance to our Indian nations that they treated with The Royal Majesty. The elders understood they were entering into a sacred relationship of trust with another sovereign which would endure the passage of time and governments. The duration of the promises and their inviolability was also important to the Royal Majesty’s representatives who stated:
The Queen has to think of what will come along after today. Therefore, the promises we have to make to you are not for today only but for tomorrow, not only for you but for your children born and unborn, and the promises we make will be carried out as long as the sun shines above and the water flows in the ocean.
Thus, the Royal Proclamation and the treaties created enduring Crown obligations to the Indian nations which override the consolidation of legislative authority in Canada and exist notwithstanding the development of Canada into full statehood.
The legal relationship between the Crown and the nations was, from the outset, consensual. Calvin’s Case ((1608)) 77 E.R. 377, Blankard v. Galdy ((1693)) 92 E.R. 356, and Anonymous ((1733)) 24 E.R. 646; Western Sahara Case ((1975)) I.C.J. Rep. 1. Before Indian land could be acquired by the colonial government, or before there was to be a limitation placed on Indian political sovereignty, as a matter of law the Crown was required to obtain the consent of the Indian nations.
Landmark decisions recognized the relationship between the Indian nations and the Imperial Crown as founded in principles of consent that entitle the Indian nations that continuing use and occupancy of traditional lands until ceded and that recognized Indian sovereignty until all or some aspects of Indian political institutions, by consent, came under the control of the Crown. The Privy Council accepted this principle in the case of Mohegan Indians v. Connecticut 1703- 1743((5 1703-1743 ((5 Acts of the Privy Council of England, Colonial Series 218 ((London: 1912)), in confirming the decision of Commissioner Horfmander, writing for the majority of the Court of Commissioners, who held that:
The Indians, though living amongst the King’s subjects in these countries, are a separate and distinct people from them, they are treated as such, they have a policy of their own, they make peace and war with any nation of Indians, when they think fit, without control from the English. It is apparent the Crown looks upon them s subjects, but as a
distinct people, for they are mentioned as such throughout Queen Anne’s and His present Majesty’s Commissions by which we now sit. And it is as plain, in my conception, that the Crown looks upon the Indians as having the property of the soil of these countries; . . . and that their lands are not, by His Majesty’s grant of particular limits of them for a colony, thereby impropriated in his subject til they have made fair and honest purchase of the native . . . so that from hence I adjure this consequence, that a matter of property in lands in dispute between the Indians as a distinct people ((for no Act has been shown subjects, cannot be determined by the law of our land, but by a law equal to both parties, which is the law of nature and nations;)) and upon this foundation, as I take, these Commissions have most properly issued. ((at 126-127.))
The Supreme Court of the United States decision in Worcestor v. Georgia ((1832)) 6 Peters 515 was the culmination of 30 years of consideration on the subject by Chief Justice Marshall and in his judgment the principles of consent were expressly reaffirmed:
The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial;
Certain it is, that our history furnishes no example, from the first settlement of our country, of any attempt on the part of the Crown to interfere with the internal affairs of the Indians farther than to keep out the agents of foreign powers, who, as traders or otherwise, might seduce them into foreign alliances. The King purchased their lands when they were willing to sell, at the price they were willing to take; but never coerced a surrender of them. He also purchased their alliance and dependence by subsidies, but never intruded into the interior of their affairs or interfered with their self-government, so far as respected themselves only.
The affirmation of the principle of consent both as to the acquisition of Indian land and any change in political institutions was not confined to decisions of the United States courts. In Queen v. Symonds 1847, N.Z.P.C.C. 387, the Supreme Court of New Zealand sought to identify the principles of law applicable to Great Britain’s dealings with the aboriginal peoples of America and other colonies. One of these principles embodied the principle of consent to the acquisition of aboriginal lands. As Mr. Justice Chapman stated:
The practice of extinguishing native titles by fair purchases is certainly more than two centuries old. It has long been adopted by the government in our American colonies, and by that of the United States. It is now part of the law of the land… In the case of the Cherokee Nation v. State of Georgia the Supreme Court threw its protective decision over the plaintiff-nation against a gross attempt at spoliation; calling to its aid, throughout every portion of its judgment, the principles of the common law as applied and adopted from the earliest times by the colonial laws…
Whatever may be the opinion ofjurists as to the strength or weakness of their native title, whatsoever may have been the past vague notions of the natives of this country, whatever may be their present clearer and still growing conception of their own dominion over land, it cannot be too solemnly asserted that it cannot be extinguished ((at least in time of paece)) otherwise than by free consent of the native occupiers. ((at p. 930))
any limitation on the sovereignty of the Indian nations was only to the extent that the treaty so stipulated. This principle was the subject of commentary by Wheaton in his 1836 treatise on the law of nations.
The sovereignty of a particular state is not impaired by its occasional obedience to the commands of other states, or even the habitual influence exercised by them upon its councils. It is only when this obedience, or this influence, assumes the form of express compact, that the sovereignty of the state, in theory and power, is legally affected by its connection with the other. Treaties of equal alliance, freely contracted between dependent states, do not impair their sovereignty according to the stipulations of the treaties.Wheaton, Elements of International Law, paras, 3 and 4, 1866.
The Marshall Court in Worcester v. Georgia, supra affirmed the principle.
The settled doctrine of the law of nations is that a weaker power does not surrender its independence, its right to self- government, by association with a stronger and taking its protection. The weak state, in order to provide for its safety, may place itself under the protection of one more powerful without stripping itself of the right of government and ceasing to be a state. Examples of this kind are not wanting in Europe. At the present day more than one state may be considered as holding its right of self-government under the guaranteed protections of one or more allies.
The conclusion of these decisions is that rights acquired by the Crown and obligations undertaken by the Crown were acquired or undertaken with the consent of the Indian nations; hence any alteration or variation of these rights and obligations would have to be with the consent of our Indian nations.
In addition to the rights and obligations acquired by the Crown by consent, as the colonial power in North America, the Crown became subject to further obligations in respect of the Indian nations. Subsequent terminology has come to use the rubric “the sacred trust of civilization“, and although its clearest modern expression is found in the mandate system of the League of Nations and the trusteeship system of the United Nations, the concept has its roots in much earlier times. The notion may be found in Victoria, who stated that if administration were assumed over the Indians it should be:
for the welfare and in the interests of the Indians and not merely for the profit of the Spaniards. ((De Indis, Section III))
The obligation to protect the property and status of the Indians in accordance with the sacred trust doctrine was an essential component of British colonial practice in India, Africa, the Pacific Islands and North America. The 1837 Select Committee Report of the House of Commons in considering the measures to be adopted with regard to the original inhabitants of North America, stated that the United Kingdom held a trust:
. . . particularly belonging and appropriate to the executive government as administered either in this country (Great Britain) or by the governors of their respective colonies. This is not a trust which could conveniently be confided to the local legislatures.
The culmination of the development of the concept of the “sacred trust of civilization”, is found in the Advisory Opinion of the International Court of Justice on the Legal Consequences for States of the Continued Presence of South Africa in Namibia ((South West Africa)) Notwithstanding Security Council Resolution 276 ((1970)) ((1971, I.C.J. Rep. 1)). The court, after reviewing more recent treaties and resolutions of the General Assembly of the United Nations, concluded:
These developments leave little doubt that the ultimate objective of the sacred trust was the self-determination and independence of the peoples concerned.
In conclusion, the Crown became possessed of further legal obligations, fiduciary in nature, involving a supervisory role to assure the continuation of Crown obligations to the Indian nations.
Crown obligations to the Indian nations have been supervised, administered and protected through a careful distribution of legislative authority between the federal and provincial governments in Canada. This framework for the supervision, administration and protection of Crown obligations is preserved in every Canadian constitutional instrument.
The Royal Proclamation of 1763 as the first Canadian constitutional instrument, set the pattern for Canada’s settlement and formalized the constitutional position of the local government, the Indian nations and the British Parliament. A legislative assembly was convened to govern areas which had been ceded by the Indians. The role of the British government was that of supervisor, preventing Indian lands from being settled prior to consent being obtained from them, while the Indian nations were to maintain themselves in the use and occupancy of traditional lands and under the authority of their Indian governments, until, through a process of treaty making, they concluded a different relationship with the Crown.
The courts have held that the Proclamation has the force of statute in Canada and has never been repealed. Campbell v. Hall ((1774)) I Cowp. 204; R. v. Lady McMaster ((1926)) Ex. C.R. 68. For over three centuries it has had in application in the Canadian political instutitions and most recently is recognized in Section 25 of the Charter of Rights of the Constitution, 1982.
In every pre-confederation constitutional act, a clause saves the operation of the Royal Proclamation, while at the same time consolidating the jurisdiction of the local governments over ceded lands. The saving clauses are contained in the Quebec Act, ((1771)) S.3; the Constitutional Act, ((1791)) S.33 ; and the Union Act, ((1840)) Section 46.
Under the British North America Act 1867, the Federal government was delegated legislative jurisdiction over “Indians and lands reserved for Indians“ under Section 91 (24). The provincial government under Section 109 retained the lands, mines, minerals and royalties of the province, “subject to any interest existing in respect thereof and to any interest other than that of the provinces in the same.“ The Imperial government retained the amending power.
In the judgments by the Privy Council in St. Catherines Milling and Lumber Co. v. The Queen ((1889)) 14 A.C. 46 ((P.C.)) and later in Attorney General for Quebec v. Attorney Gneral for Canada ((The Star Chrome Case)) ((1921)), A.C. 401, the Privy Council decided that the Indian interest in unceded lands, is “an interest other than that of the provinces in the same“; hence is a burden on the title the provinces.
Although the precise aamit of Section 91 (24) has never been explicitly determined, the category has legal limits circumscribed by the Royal Proclamation of 1763, and the treaties. The Royal Proclamation not only bound Canada but possessed overriding force, so as to nullify any existing or future local laws which conflicted with it. Colonial Laws Validity Act, 1865; Campbell v. Hall, supra. Thus, the jurisdiction under 91 (24) was not to be exercised in derogation of the Royal Proclamation R. v. Lady McMaster, supra. Nor should the jurisdiction be exercised in derogation of treaty obligations. Section 91 (24) reserved for the Federal Government the administration of those obligations, including the financial burdens arising therefrom. Attorney General for the Dominion of Canada and Attorney General for Ontario and Attorney General for Quebec ((1897)) A.C. 199. Finally, the jurisdiction under Section 91 (24) carried legal obligations, binding on the Canadian Federal Government to administer Crown obligations in a fiduciary manner. Delbert Guerin et al v. Her Majesty The Queen ((1981)) unreported Federal Court of Canada, trial division. Action No. T-4656-75.
Therefore, the Federal Government’s jurisdiction under Section 91 (24) of the B.N.A. Act is not a plenary power over Indians and land reserved for Indians but was designed as a vehicle for the administration of Crown obligations.
The distribution of legislative authority between the federal and provincial governments, as confirmed by the Privy Council in St. Catherines Milling, supra, provides the constitutional background for the protection and administration of Crown obligations. The Federal Government, charged with the administration of the obligations to the Indian nations, would not benefit from the unburdened title. The provincial govern-
ment did not have the authority to extinguish Indian title, but would acquire the unburdened fee when Indian consent had been obtained.
Had the Canadian government administered Crown obligations in keeping with their spirit and intent, the Indian nations in 1982 may have consented to Canada receiving plenary jurisdiction over them. But for over 100 years Canada has used the administration to streng strengthen Canada at the expense of the Indian nations. The device continues to be forced assimilation.
It never was the intention of the Imperial Crown to assimi- late the Indian nations in this way. When the treaties were made with the Indian people of Western Canada, they were told that they would not be forced to adopt the culture of the white men. At the negotiation of Treaty 1, Governor Archibald declared:
Your Great Mother wishes the good of all races under her sway. She wishes her Red Children, as well as her White people, to be happy and contented. She wishes them to live in comfort. She would like them to adopt the habits of the whites—to till land and raise food, and store it up against a time of want. She thinks this would be the best thing for her Red Children to do; that it would make them safer from famine and sickness, and make their homes more comfortable.
But the Queen, though she may think it good for you to adopt civilized habits, has no idea of compelling you to do so. This she leaves to your own choice, and you need not live like the white man unless you can be persuaded to do so with your own free will.
For our Indian nations with treaties, Canada has administered the treaty obligations in a manner which belies the basic compacts. The consistent theme revealed in the Indian research into the treaties negotiated in the 1870s in the Prairie Provinces is that by the treaty-making process which included oral as well as written representations, the Indian nations entered into political and legal arrangements with the Crown which confirmed and guaranteed the following principles:
1. The Indian nations retained jurisdiction over their people, lands and resources, both on and off the reserves, subject to some shared jurisdiction with the appropriate government bodies on the lands known as unoccupied Crown lands. This is the foundation of Indian government.
2. By signing the treaties, the Indian nations created an on-going relationship with the Crown with respect to social and economic development in exchange for lands surrendered.
3. The Indian nations established a political protocol for the review of the progress of the treaties.
Yet Canada continues to deny the Indian interpretation of the treaties, insisting that Indians surrendered total rights to their land and to their government. Legislation, police and courts are used to enforce the Canadian interpretation. At the statue time, Canada has unilaterally altered treaty terms by legislation, namely, the Indian Act without Indian consent.
The questions of treaty interpretation, unilateral revocation of treaty terms, forced assimilation and denial of the inherent rights to self-determination and the continued disregard for the Crown’s trust responsibility persists as fundamental violations by Canada of basic Crown obligations. The Indian nations are approaching a threshold where their ability to maintain themselves as distinct peoples is at stake. The Indian people fear that with the new Constitution of 1982, Canada may be finally vested with sufficient legal power to effectively prevent the fulfillment of Crown obligations to the Indian nations. Should the latter occur, the Indian nations are at the dawn of total genocide.
Chief Swan: I think this package with the first 12 pages here are really information to the committee. We do have recommendations within this package that Chief Ed Anderson will elaborate on.
Thank you. I will pass it over to Chief Ed Anderson now.
Chief Edward Anderson (Fairford Band, Brotherhood of Indian Nations): Thank you, Mr. Chairman.
I will begin on page 14.
As Chief Raymond Swan outlined to you, the first 12 or 13 pages have to do more on the constitutional issue that the brotherhood have taken a position on. You may just peruse this in your good time, and we will try to endeavour to present to you our views on our Indian government starting from page 14.
We, the Chiefs of the Brotherhood, realize that it is not your mandate to settle constitutional issues. However, it is your mandate to address the issue of Indian government and its relationship to other governments within Canada. We have placed before you our arguments based upon prodigious research of Indian law in Canada, the United States and other parts of the Commonwealth where the common law is applicable. We fail to see how viable recommendations on Indian government can be made, however, without coming to grips with the constitutional context, and particularly Indian peoples’ arguments concerning our inherent right to self- government, to decide for ourselves the structure, function and jurisdiction of our government’s right which we never gave up.
Even though the Prime Minister stated on August 8, 1969 that:
We will try to bring justice to that area and this will mean that perhaps the treaties should not go on forever. It is inconceivable, I think, that in a given society one section of the society have a treaty with the other section of society.
We will, as a people with the right to govern ourselves, persist and remain as the first people of this land. We will persist because our communities are real. They are real in the sense that our people, our values, our interests and beliefs are real. Our communities are composed of people united by our values, including our purposes, interests, ideas, ideologies, myths, utopias, symbols of our religions and other rituals.
Our communities are built upon what has existed and what exists and also upon what we as Indian people will. The uniting of our people is partly by emotional and historical attachment and partly by subjection to our common rules responding partly to organic need and partly to conscious purpose, expressing what already exists or what we as Indian people explicitly will. We are not individuals isolated by individual rights and interests but collectivities of the people whose bonds and rights are contained in and preserved by the whole Indian community and the whole Indian nation.
Our conception of an Indian political order is that of an operational whole which enables us, as a community of people, to arrive at decisions and to enable policies by ways of our political and governmental institutions which provide us with the means of effective co-operation.
In order for our Indian governments to effectively express the shared values and goals of our people, the following requirements are minimums for an effective Indian political order:
(a) institutions that can act effectively to take all necessary measures to cope with the spiritual, political, economic, social and technological, including comprehensive planning;
(b) some processes and mechanisms which will allow, in fact, encourage, participant members of the political order to participate in the making of rules, policies, and regulations;
(c) the ability and capacity through institutions, mechanisms and processes to make general rules which express the more permanent shared values and beliefs and common interests of the members of the political order;
(d) a system, process and/or mechanism which interprets the rules and to particularly define the terms of settlements for disputes which normally and inevitably arise in a political order;
(e) some well-defined restraints and limitations on the institutions and mechanisms in order to protect individual members or groups of individuals from excessive or oppressive actions of the institutions themselves;
(f) the allowance for and the permission of voluntary groups or associations of members of the political order which will provide the development of alternative policies, personnel and for the continuous re-examination of support for the general rules and policies.
The present Indian Act does not recognize these fundamental requirements of the Indian government. The reasons are clear.
One, Indian governments have been reduced to band councils which are not more or less than administrative arms ot the Department of Indian Affairs.
Two, programs and sources which these administrative councils handle are delegations of administrative responsibility from the federal government rather than legal recognition of the inherent capacity and power of Indian governments to develop, legislate and to administer their own programs and services.
Three, since there is no recognition of Indian government in its comprehensive sense, authority for and accountability of programs and services rests with the Department
Four, since the Indian governments have been viewed as and consistently reduced to administrative entities by various Indian acts for nearly 100 years, Indian people have virtually no say in program and service policies and no methods or processes whereby the people can demand certain services either through political action or legal recourse.
Iiive, because of the administrative nature of the institutions for the delivery of programs through the Department of Indian Affairs of the federal government and their extension through to and including band councils, all programs are essentially designed by the central administration, which requires conformity and consistency across Canada, and therefore those programs and services lack the uniqueness of each community situation and cannot respond to special and particular needs.
Six, the monolithic nature of the administrative apparatus, as pointed out, which fails to and in fact cannot tolerate or allow Indian people involvement as full political participants, destroys any local initiatives and creative approaches to the development and implementation of those programs and services deemed necessary.
Seven, even though there at present exist pseudo—electoral processes to determine Indian political leaders, the leaders are tnore often than not politicized administrators whose accounta- bility must be to the Department of Indian Affairs and not to their own people who elected them.
Eight, the methods, basis and process of funding the Indian nations fully reflect the above—noted seven points because of the power of the purse, which in an administrative model is neither created by nor accountable to and responsible for the citizens of the community which funding is presumably for.
Nine, and finally, the eight points concerning the nature and function of the present Indian Act, as with all of the Indian acts over the past 100 years, dramatically document the vast and contradictory gulf between the constitutional and’governmental relations of Indian nations and the Crown as argued earlier in this presentation, and the continued and persistent denial, in fact, violation, of that fundamental relationship through imposed legislative enactments which are bureaucratic and administrative in nature, paternalistic in purpose and assimilative in results.
The once proud and independent Indian nations, through consent, the treaties, gave up land for the settler governments, and voluntarily, through their consent, as recognized and provided for in the royal proclamation, became domestic dependent nations in return for protection and the concomitant trust relationship; or so they thought, and so we still believe and maintain today.
Your task, from the viewpoint of us, the chiefs of the Brotherhood of Indian Nations, is not that of recommending legislation and devolving political and legal power to our nations, because those attributes of self-government have never been given up through conquest, in which case your military laws would apply, or through the treaties, which our forefathers signed as leaders of sovereign nations who had the capacity to treat. Your task is basically fourfold, from our viewpoint.
One, it is to recommend legislation which recognizes, not devolves, the inherent right of Indian nations to self-government and the full concomitant right to create and arrange our political order according to the minimum requirements as stated above.
Two, in joint consultation with Indian nations, it is to describe and articulate the general rules by which the Indian governments of this land called Canada and the federal and provincial governments will work and function in a harmonious relationship on those issues of jurisdiction where there will be, and no doubt are, conflicts and concurrent jurisdictions; in short, conflict of laws.
Three, in a joint working relationship, it is the need for and the distribution of those funding resources necessary to any political order to function effectively, responsibly, and accountably to the citizens of our nations, whose political and legal institutions, fashioned by our people, are designed to create an operational whole which enables us to take the necessary measures to cope with spiritual, political, economic, social, and technological, including comprehensive, planning.
Fourth, and lastly, is the full legislative recognition and the full adherence to the compliance of the federal Crown in its trustee responsibilities to Indian people.
Let me discuss each one of these points in a summary fashion, without going into great detail; first the issue of recognizing the inherent and vested right of our Indian nations to form our own governments and to determine the jurisdiction thereof. We take as a general model in which to express our Indian government in unencumbered authority the Indian Reorganization Act of 1934 in the United States. We do not necessarily subscribe to each item as expressed in the below- mentioned quotation. However, it nevertheless expresses the
sentiments, aspirations, and rights of the Indian nations who make up the brotherhood.
Chief Swan: In an opinion approved on October 25, 1934 by the then Assistant Secretary of the Interior, the powers of Itttlian tribal government, under the newly passed Indian Iteorganization Act, were summarized as follows:
(U) Under Section 16 of the Wheeler-Howard Act, the powers vested in any Indian tribe or tribal council by existing law are those powers of self-government which have never been terminated by law or waived by treaty, and chief among those powers are the following:
(2) The power to adopt a form of government, to create various offices and to prescribe the duties thereof, to provide the manner of election and removal of tribal officers, to prescribe the procedure of the tribal council and subordinate committees or councils, to provide for salaries or expenses of tribal officers and other expenses of public business, and, in general, to prescribe the forms through which the will of the tribe is to be executed.
(2) To define the conditions of membership within the tribe, to prescribe rules for adoption, to classify the members of the tribe, and to grant or withhold the right of suffrage in all matters, save those as to which voting qualifications are specifically defined by the Wheeler-Howard Act (that is, the referendum on the act, and votes on acceptance, modifications, or revocation of constitution, bylaws, or charter), and to make all other necessary rules and regulations governing the membership of the tribe so far as may be consistent with existing acts of Congress governing the enrolment and property rights of members.
(3) To regulate the domestic relations of its members by prescribing rules and regulations concerning marriage, divorce, legitimacy, adoption, the care of dependents, and the punishment of offences against the marriage relationship, and to issue marriage licenses and decrees of divorce, adopting such State law as seems advisable or establishing separate tribal laws.
(4) To prescribe rules of inheritance with respect to all personal property and all interests in real property, other than regular allotments of land.
(5) To levy dues, fees or taxes upon the members of the tribe and upon non-members residing or doing any business of any sort within the reservation, so far as may be consistent with the power of the Commissioner of Indian Affairs over licensed traders.
(6) To remove or to exclude from the limits of the reservation non-members of the tribe, excepting authorized Government officials and other persons now occupying reservation lands under lawful authority, and to prescribe appropriate rules and regulations governing such removal
and exclusion, and governing the conditions under which non-members of the tribe may come upon tribal land or have dealing with tribal members, providing such acts are consistent with Federal laws governing trade with Indian tribes.
(7) To regulate the use and disposition of all property within the jurisdiction of the tribe and to make public expenditures for the benefit of the tribe out of tribal funds where legal title to such funds lies in the tribe.
8. To administer justice with respect to all disputes and offences of or among the members of the tribe, other than the 10 major crimes reserved to the federal courts.
Second, the aspect of inter-governmental relations between the Indian nations, the federal government, and the provinces. Some areas that inter-governmental relationships might address may touch upon mutual environmental and health facilities, transportation, flood control, migratory birds, joint venturing, contracting of services, higher education, etc. At present there are no forums, no general rules and procedures. At most, there are imposed regulations, bilateral agreements between the federal government and the provinces, without our Indian nations participating as equals and without our consent.
The first step to be taken is the repeal of Section 88 of the present Indian Act, which not only allows but requires the application of provincial laws over Indians and Indian lands. Any provincial law, regulation and/or order must not and cannot apply to our people and their government jurisdiction until fully negotiated and approved by our own political institutions.
Models for inter-governmental co-operation and policy development could be that of the International Joint Commission, or the Indian-State Commission as has developed in the United States. Without going into detail at this time on these models and others, the brotherhood would be pleased to file with you our more detailed analysis of various models that we have looked at in order to bring some degree of clarity to an area that is, at the time being, ad hoc and confused. But one central point must be kept in mind, and that is that Indian governments be on a co-equal basis with the federal government and the provincial governments.
Third, funding and resources. The Indian governments in Canada do not possess an adequate resource base to enable them to be economically self-sufficient. Thus, we are dependent upon fiscal transfer from the federal government administered by the Department of Indian Affairs.
The direction plan for the 1980s was implemented by the DIA. It was contrived without any formal Indian involvement, thus the strategic objectives which direct the operational plan
are contrary to Indian political and economic aspirations. Such conflicts are clearly apparent in the areas of self-government, relations with provincial government authorities, control of development funds and the future role of the Department of Indian Affairs. The Department of Indian Affairs is currently under a Management Improvement Project (MIP), reorganizing its legislative mandate, structure and resourcing inputs to carry out the strategic objectives.
The DIA fiscal-directional plan cannot be seen or dealt with in isolation of the Policy and Expenditure Management System (PEMS). The PEM System describes a process used to determine the federal budget over a five-year period. The process defines the level of funds available to policy sectors and defines policies governing expenditures. The DIA fiscal-directional plan is a package of DIA strategies, priorities and finances, as determined within the PEM System.
Strategic planning is done at the department level, but it is directed and authorized at the Cabinet level. Planning on the elements and direction of social policy in Canada is carried on by the departments which report to the Social Policy Committee. Once policy has been defined, it is authorized by the Priorities and Planning Committee. Under the envelope system, DIA policies and funding levels are determined in the context of general social policy. Thus, we have a situation where Cabinet committees decide through the PEM System the direction of Indian policy and the level of funding to the DIA program over a five-year period.
Any move to create a bottom-up approach to replace the top-down planning within the Department of Indian Affiars, or to install an Indian-controlled planning process in the DIA, would be a useless exercise unless there is a concurrent move to increase Indian influence and input into the general budgetary system.
Chief Anderson: Under the existing rules, the strongest model of Indian input in the PEM System would be participation at the Cabinet and committee level at all stages of the process. Also, Indians must influence greatly if not control the DIA inputs into the PEM System. Informal power-sharing could begin at this time and be formalized at the appropriate time and place.
Under the existing rules and conventions, Indians should assume increased control over the planning process in the contexts of the Policy and Expenditure Management System and, more directly, within the Department of Indian Affairs.
In the PEM System, Indian inputs could occur in all of the appropriate Cabinet committees. This can only take place if there is a Cabinet level commitment:
(a) for full Indian involvement in the PEM System within the existing operations of the Executive Branch, and
b) for an ongoing review of the progress of developing Indian participation.
Once a commitment is secured, an appropriate form of Indian participation can be processed.
Cabinet committees will review the strategic overviews prepared by each of the departments that report to them, and every summer the Cabinet, as a whole, reviews the existing multi-year fiscal plan and takes such action as is required to revise the existing framework and extend the envelopes.
The strategic overview in the social policy area is devised from the National Environmental Assessments prepared by each department under the Social Policy Committee, including the Department of Indian Affairs. The development of strategic objectives within each department is largely based on their perception of the situation that exists in that department’s area of responsibility. Representatives of Indian nations must have input into the assessment of national Indian environment.
We request full participation in the development of the strategic objectives of the Department of Indian Affairs prior to these being submitted to social policy committee. In addition, we want to meet with the social policy committee to discuss the strategic objectives before they are finalized into operational plans. The process of DIA planning to establish and enforce their operational plan must be reviewed and the Indian inputs provided at the Ottawa and regional levels. This would require an operative definition of consultation to be agreed upon between the Indian nations and the Minister of Indian Affairs. These examples of Indian input into the PEM systems are only examples designed to indicate the real lack of Indian participation and decision-making in the funding and resource process.
The issue of the trust relationship: As we pointed out earlier, when the constitutional relationships between the Indian nations and the Crown were discussed, we specifically stressed the fundamental constitutional position that the Royal Proclamation of 1763. clearly recognized the right of Indian nations as owners of the land. Through the treaty, land was ceded to the Crown with the Indian nations’ consent. While at no time did the Indian nations give up their right to self-government, they did, through their consent, cede land in return for protection from the stronger nation. A trust relationship was formed.
The federal government’s position on the issue of trust relationship between Crown and the Indians appears to be less certain than that of the United States and its Indians. It is argued that except for the unusual circumstances, the Crown may not be placed in a trusteeship position without its expressed consent, i.e., an act of Parliament or of contract. But here, unlike the U.S. where the trusteeship was that of judicial doctrine growing out of the nature of the Indian treaties, constitutional law and the law of guardianship/ ward— common law, the courts have on the one hand held that the Crown cannot by treaties with sovereign powers be an agent or a trustee. Yet while the courts have held that Indian treaties are not international agreements and therefore no trust exists, the courts on the other hand have held that Indian treaties are of a contractual nature entered into with the Crown of which the Crown has not expressly consented to act as trustee to Indian people. The relationship between Indians and the Crown, so they argue, is that of a political trust which does not find legal status in the strict sense of the definition of the common law.
Indian people do not agree to the notion that the relationship historically and constitutionally between the Indian people and the Crown is a mere political trust.
In addition to our presentation to the committee are the hearings that have taken place on various trusteeship relationship between the Indian people and the Crown. They are indicated in the next few pages. Perhaps at this time it will not be necessary for me to read this. It is attached to the presentation for your benefit. If the group feels it is necessary for us to go into that, there is no problem. At this time, we will conclude our presentation and the other presentations will follow.
The Chairman: Thank you very much, Chief. I am going to recommend to members of the special committee that the entire document become a part of today’s proceedings including those pages that were not read and also the precedents that are described on page 24. I think we would like to have the entire document.
Is that agreed?
Some hon. Members: Agreed.
The Chairman: Thank you.
The next presentation, I understand, is to be presented by Chief Louis Stevenson, is that correct?
Thank you, Chief.
Chief Louis J. Stevenson (Peguis Indian Band, Manitoba): Thank you, Mr. Chairman.
Our presentation is a general statement at the liberty of the Peguis Band. This submission is made on behalf of the people of Peguis, the largest Indian reserve in Manitoba and with a membership of approximately 2,800 persons. Peguis is a member of the Treaty No. I signed in 1867.
The task of your committee of making recommendations to the federal government on Indian government is one that is both sensitive and crucial for Indian people.
There has been a longstanding desire from Indian people for self-determination and for freedom to govern our own affairs. There is also the acknowledgement from the federal government that changes must be made to allow the positive development of Indian people in all areas such as, health, social, education, economic development and poltics.
The results of over a century of colonial bondage that the federal government has kept the Indians under, are both shameful and deplorable. References to the adverse conditions affecting Indians have become mere rhetoric to our trustee, the federal government. The Minister of Indian Affairs glorifies himself for discovering the substandard conditions of Indian people across this land in his survey on Indian conditions released in 1980. But merely confirming and empathizing with our situation is not good enough. We feel the federal government has both a moral and legal obligation to positively address our needs.
There is still a cry from the Indian people for our federal trustee to do something about the overcrowded living conditions, high mortality rates, the substandard housing, the high welfare dependency and the lack of employment and economic development.
While these Third World conditions are neglected on Indian reserves in Canada, the same federal government is playing Good Samaritan all over the world, handing out billions of dollars to alleviate the problems of people in different countries.
We feel Canada should clean up its own backyard with the Indians to whom it has an eternal obligation rather than being hypocritical by its conduct in world relations. Canada is a member of the United Nations and various charters of human rights and the freedom of self-determination of people, and yet the condition of Indians and the repressive relationship with the federal government is a mockery of what Canada proposes to stand for and represent in the world.
We firmly believe the only way to have an positive change would be to have full recognition of our Indian right to self- determination and self-government. The Indian nations have never given up their sovereignty or right to self-determination. There is no historical document that the Indians have signed agreeing to give up this right. This right has been restricted because it has been interfered with by the federal government and by its own convenient interpretation of their own laws, which has been used to continuously erode our treaty.
Any form of Indian government must exist on the same basis as any other government to another. Indian government must be given full recognition as a government and not merely as legal, corporate entities or administrative bodies. Any style of Indian government must ensure the protection of Canada’s fiscal responsibilities to Indians as well as all the legal
obligations as set out in our treaties, for status Indians both on and off reserve.
Under the current fiscal arrangements, between the federal Department of Indian Affairs and our band, we feel threatened by the fashion of local control and the style of artificial Indian government that has evolved through the Department of Indian Affairs.
The biggest concern we have is the fact that non-discretionary— -protected—funds suddenly become discretionary— unprotected—when an Indian Band is allowed to take over a program. Indian bands are not given the same assurances that funds will continue to exist as opposed to the protective category that certain funds have while the Department of Indian Affairs is in control of those funds.
Funding of Indian government should be a direct relationship between the federal government of Canada and the Indian governments. To have any other arrangement with the provincial government, or any other body in between, as a replacement to the Department of Indian and Northern Affairs, will only result in token amounts of moneys reaching the band level. If direct transfers to bands were made, the money available could quite adequately fill most of the needs of our band, if we received the funds that are absorbed in bureaucracies like the Department of Indian Affairs for administration.
At most, our band is presently only administering the programs and policies of the Department of Indian Affairs. We are not practising any form of local control or Indian government in its true sense. Because of the meagre amounts of dollars that eventually filter down to the band level, we end up just administering misery for our people, because there are never realistic budgets available to provide the services that any government should provide for its people.
References were made to the fact that most governments function by raising taxes to provide services. This could be an option for bands who choose to collect taxes, but it sets a bad precedent for Indian people who believe in the treaties and know that Indians should not be subjected to taxes. Our position is that money to finance Indian governments should come from the treaty obligations, in lieu of taxes.
Our accountability would be first to our Indian people and secondly to the federal government, under the same accounting arrangements set forth between them and other governments it finances. Any creation or design of a national Indian government office must be left up to the Indian bands across this country. We do not feel that a total universal standard of Indian government should be imposed on Indian people. Indian government must be designed to suit the level of advancement of an Indian band and take into account the diversity that may
exist between bands, as well as the customs, culture, and lifestyles.
We feel that through revisions of the Indian Act, all the excessive powers that the Minister of Indian Affairs and Northern Development has over Indian people should be turned over to the Indian people, where the power rightfully belongs. The minister’s role could then be one of ensuring that Canada’s fiscal responsibilities to Indians are maintained and to ensure that none of our treaty rights are further eroded.
This arrangement would be more effective than what exists now. The Indian bands could then govern all matters relating to band membership, lands, resources, programs, moneys, and the destiny of Indian people. An arrangement could be made where the Indian governments could have a joint accounting with the minister to Parliament, so that the minister is not left being accountable for finances that are in the control and at the disposal of Indian governments.
The Indian governments should have full legislative powers on matters affecting Indian people and have the authority, status, and recognition as a government to deal with other governments, be they municipal, provincial, or federal governments. There are no magic answers for Indian government, but definitely any style of Indian government must be designed by the Indian people themselves. We do not agree with the Indian government proposed by the Minister of Indian Affairs. Our assessment is that it is designed to terminate the trust responsibility of the federal government and eventually to turn the reserves into municipalities under the control of the provincial governments.
Sure, there will be an attraction to Indian bands to accept the proposed Indian government legislation, and there may be a lot of funds available up front. But 10 or 20 years down the road, when the Indian lands and property are mortgaged and the funds begin to dry up, eventually the reserves will begin to disappear.
The reverse psychology used in Munro’s proposal will be another attraction, because it states that bands must have demonstrated responsibility and must qualify to exercise this form of Indian government. Bands will rush into it just to prove to the federal government that they should not be denied access to this Indian government legislation. Munro states that the proposed Indian government will be strictly optional. It will not only be optional; it will be the only option remaining, under the current Indian Act control and endless poverty and domination.
The attitude of the federal government must change. The scheming to rid themselves of the so-called burden of Indian people on the federal government must end, and the obligations and entrenchment of our treaty rights must be recognized and enforced.
Indian people are always offered double-negative choices to choose from. We have the choice of accepting the government’s design of Indian government or remaining under the current Indian Act provisions. There must be flexibility to permit a form of Indian government designed by the Indian people for the Indian people.
Perhaps this will be the beginning of that type of reform desired by us and an end to the enactment of legislation affecting Indians in which Indians are never consulted nor involved. We are not asking the federal government to give us something new or to devolve powers to us that we never had before. We were Indian nations with the right to self-government that is an inherent part of our original sovereignty. We were never conquered in war. We did not submit to anyone and give up the basic principles of freedom or our right of self-determination. We as Indian nations deserve the same freedom to exercise this right as any other nation of people in the world.
The doctrine of reception does not apply to the treaties, as may be interpreted by the white man’s law. Our treaties were signed as one nation to another nation, and the only terms that the Indians agreed to were to share the land and live in peace with the white man when he came to this country, in exchange for our treaty rights. We never gave up our right to self-determination or our sovereignty in the treaties.
To prolong the current substandard conditions affecting our reserve and to allow our deteriorating relationship with the Department of Indian Affairs to continue because of their control and manipulative oppressiveness could only trigger ideas of declaring independence once again as an Indian nation. We hope this extremity can be avoided by working together within the framework available to the Indians and the federal government and that an acceptable form of Indian government will be recognized. We hope through the hearings of this subcommittee and your sensitivity to Indian people, it will result in favourable recommendations for Indian government that originate from the Indian people.
I thank you for this opportunity to address the subcommittee.
The Chairman: We thank you, Chief Stevenson.
I was intrigued by your suggestion that there should be direct transfers to bands. Could you explain to the committee how you would handle the difficulty of disparities that exist among bands? We know that in this country there are some
bands that are moderately well off. There are a few that are even wealthy. There are, of course, many that are poverty-stricken; that, as you descibed in your brief, exist at something comparable to what is seen frequently in the Third World.
What formula would you apply if you had a direct transfer to bands? Obviously a per capita formula would present some difficulty, and the chiefs, for example in my constituency, often complain that they are remote, they are far away, they do not have the same bargaining power to get additional moneys, and their needs are so much greater that they should be getting a larger share to bring them up to some kind of a standard. Have you thought about a formula?
I might mention parenthetically that in Canada we have a system at the federal level that we work with the provinces called equalization payments. What they do there is take national standards and then in an effort to bring poorer provinces up to some national standard of service, they get more, much more, per capita, than another province; and of course some provinces receive nothing at all, because they are very wealthy; they are net contributors. Could you tell us if you have done some thinking or if there are some ideas you have—if we were to recommend a direct transfer to bands, what kind of formula would we also have to suggest so we would have some equity in that system?
Chief Stevenson: I would like to remind you that this statement was made on behalf of the Peguis Band, and we only view it in terms of that and we can only speak in that regard.
But in your reference to per capita allotment, we have done some calculations based on the national budget, and if we received direct transfers from the federal government based on our per capita number, we could be receiving $13 million a year, as opposed to the $2 million annually that we receive. But I guess the answer would lie in my original reference; that if Indian governments are going to be formed they would have to treat them as governments in the same relationship they have with provincial governments. If they transfer funds in that regard that you mentioned, I would anticipate that is the same relationship that Indian governments would have with the federal government. I have not worked out any specifics, but that would be my answer.
The Chairman: Thank you very much. Are there any further questions on this brief? We have one more brief to be heard. Do you want to proceed with that, or would you like to ask a few questions? You want to proceed.
Mr. Manly: I just have a brief question. Perhaps I could wait until after the other brief, but I would like to be able to question . . .
The Chairman: Certainly.
We have another statement to the special committee by the Anishinaabe Child and Family Services. Who will be making that presentation?
Mr. Robert Daniels (Co-ordinator, Anishinaabe Child and Family Services): Mr. Chairman, before we get into this presentation, I would just like to make a comment in respect to what is happening in Manitoba currently with regard to adoption and placement of Indian and Metis children outside of the country.
There is currently a review process which has been commissioned by the Province of Manitoba, the Minister of Community Services and Corrections. Judge Kimelman has been commissioned from the Family Court to conduct a review on the placement of Indian children for adoption outside of the country. Presently there is a moratorium or a ban on adoptions here in Manitoba. On November 5 we made a presentation to Judge Kimelman on some of the issues that we are dealing with in child welfare, and today at this hearing we would like to make the same presentation that was made to Judge Kimelman, as the issues that we are going to be bringing forward to you are pertinent with respect to legislation, the cultural heritage and some of the other courts and judiciary process and policies that affect Indian people in terms of child welfare. 1 would like to make that statement before we make the presentation.
The Chairman: Thank you very much, Mr. Daniels.
Mr. R. Daniels: Chief Ed Anderson is going to read the statement.
The Chairman: All right. Thank you very much, Mr. Daniels.
I call then on Chief Anderson.
Mr. R. Daniels: There is a lot of reading to be done, so we will take turns.
The Chairman: All right.
Chief Edward Anderson (Fairford Band, Board of Directors, Anishinaabe Child and Family Services): Thank you, Mr. Chairman. I will begin on the fourth page from the cover.
The introduction and background. We appreciate having the opportunity to address the review committee on the Indian/Metis adoptions and placements. We hope the recommendations we present to you will be given serious consideration and that some action will be taken to show that this review was a worthwhile undertaking. Let it demonstrate that the Province of Manitoba is responsive to the concerns of the Indian people.
With the signing of the subsidiary agreement on August 1, 1972, Anishinaabe Child and Family Services was established. Child welfare services for Indian people of the Interlake region, prior to that all-important date, were provided by the Department of Indian Affairs, Canada, and the provincial Department of Community Services and Corrections.
The Department of Indian Affairs, Canada, provided only rudimentary placement services, primarily of a financial nature, with no related preventive or support services.
The Department of Community Services and Corrections had a policy of providing services to Indian families on a life and death basis only. Intervention at that point was usually too late for anything but drastic measures which included the removal of the child from his or her home and community. These apprehensions of Indian children from subsequent placements by provincial workers have left permanent scars on the children, families and the communities. The results led to a real fear and mistrust of the child welfare system in the Interlake region, as well as the rest of Manitoba.
In the developing of an Indian child welfare program in the Interlake region, we have had to deal with the negative feelings that the people, quite understandably, have towards social workers and child welfare services in general. We have had to convince the people that a child welfare agency, which is controlled by Indian people, can have a different focus of strengthening Indian families while developing child care resources in the region.
Anishinaabe Child and Family Services’ objectives are to initiate community education programs to prevent the removal of children from their homes and communities; to facilitate the return of Indian children in the care of other agencies; and to develop much needed foster and adoption resources.
Anishinaabe Child and Family Services serves the communities of Jackhead, Fisher River, Peguis, Lake Manitoba, Dauphin River, Lake St. Martin, Little Saskatchewan, and Fairford.
The chief of each band sits on the board of Anishinaabe Child and Family Services to ensure accountability of the child caring agency to the people it serves. The management of Anishinaabe Child and Family Services includes representation from all eight child welfare committees to ensure that local issues and concerns are taken into account in planning programs and services.
The Anishinaabe Child and Family Services’ staff consists of a Co-ordinator, a supervisor of child and family services, six trained social workers and eight local workers. The eight local workers are presently being trained as child care workers.
The local child welfare committees are the real strength of the Anishinaabe Child and Family Services. The child welfare committee at Peguis has been active since 1978. The eight child welfare committees are made up of interested and dedicated people who provide guidance and direction to the staff in planning for children in the care of Anishinaabe Child
and Family Services. These people are instrumental in developing and initiating programs to meet community needs.
After three months of operation, Anishinaabe Child and Family Services is prepared and capable and ready to assume from the provincial regional office the following functions:
1. the co—ordination of foster and adoption homes;
2. the mandate to act as a child—caring committee under Section 7 of the Child Welfare Act.
The balance of the presentation of the Anishinaabe Child and Family Services will deal with specific concerns related to Indian cultural heritage, present legislation, courts and judiciary, policies, procedures and standards.
Amendments to the Manitoba Child Welfare Act. It is the position of the Anishinaabe Child and Family Services that Indian people have a unique relationship with the federal government and that provincial legislation cannot adequately reflect the unique cultural and philosophical consideration of Indian people.
Provincial child welfare acts are based on a philosophy and tradition alien to Indian ways and even with extensive revision will still not adequately comprehend or respect the Indian way of dealing with child welfare concerns. However, we also recognize that adequate federal enabling legislation may be far in the future, and we believe it is essential that the provincial legislation—with which the Anishinaabe Child and Family Services must live with for the present . .. be reshaped and modified so that at least some of the most blatant problems will be removed or modified.
One of the first problems with the provincial act is that it does not recognize the status of Indian people and their membership as part of a cultural community. Decisions are made without reference to or awareness of the child’s community. Even in situations where the child’s parents may have become unable to cope, especially within an urban environment, there are the resources of grandparents, extended family, reserve community and other Indian families which must be brought into play. Too many times decisions have been made by courts and child welfare agencies and these decisions have been from the very people whose potential assistance and interests were ignored.
Mr. R. Daniels: These recommendations were in respect to the provincial legislation, but they could also apply to any type of enabling legislation as far as the federal government is concerned.
That Part iii, Section 25(2) and 30(2) be amended to require notification of court proceedings to the child’s local band administration, to the Indian child caring agency serving
the child’s reserve and to such other persons as the court may direct to provide scope for the court to involve extended family members as the court may consider appropriate on a prelim- inary examination of the circumstances shortly following apprehension.
There are many factors a court must consider in reviewing the matters before it when a child has been apprehended. A number of these are set out in Section 1(a)(ii), which defines the “best interests of the child”. It is recognized that these considerations apply to Indian children as they do to all other children. However, there is no reference to the child’s need to be aware of his cultural and linguistic heritage and to feel a sense of being connected to his roots. It is now well established that many Indian children raised by non-Indian parents grow up with a sense of loss of identity and a cultural confusion. They do not feel part of either society and this leaves a permanent scar on their emotional, intellectual and spiritual development. This must certainly be one of the major factors to be considered.
That Section 1a(2) of the Child Welfare Act be amended to include, “the need for a child to grow up with an awareness of his cultural heritage and a sense of belonging to his ethnic or racial community, especially with respect to the Indian people of Canada.”
In light of the same considerations as outlined above, it is recommended that each child have independent legal representation to articulate for the court the importance of these factors in the protection and enhancement of the child’s interests.
That Section 25(7.1) of the Child Welfare Act be amended to include a clause (f), “the need for preservation of the child’s connections to his cultural and family heritage”.
In Indian communities, many marital unions exist on a permanent basis recognized by the community but without benefit of church or civil ceremony. These are often looked down on by the outside community as common-law marriages or being shacked up, but in the eyes of some Indian communities, many of these are as much a marriage as those unions that have been approved by the church or the state. Such unions are not now legally recognized and the couple cannot legally adopt a child. Twisting of the intent of the act, such as proceeding with single parent adoptions, is completely inappropriate, as it does not recognize the role and status of the other partner. Getting churched just to meet legal requirements of the act may be equally offensive to those living according to the traditional way.
That Section 99(1) of the Child Welfare Act be amended to permit husband and wife of traditional unions to apply for adoption and that there be some suitable test of the unions being recognized, such as a band council resolution of the reserve where they are band members.
Indian communities have always cared for their own children. In a real sense, children belonged not only to their parents but were part of the whole community. All members of the community have a sense of responsibility towards the children and there are various practical arrangements to child care. Some children lived most of the time with their grand- parents, where the wisdom and patience of age blended with the curiosity and vigour of youth. Others were given to childless couples by a family who had many children. Orphaned children were readily absorbed into the caring relationships of the extended family. It was only when Indian families came into the disruptive influences of residential schools, alcohol abuse, and relocation to cities far from the protection of the natural environment that these arrangements became overloaded or were not permitted to operate.
In addition, as some local band members fell away from the traditional ways, the courts were called on to make decisions about many of these situations. The traditional ways were, and to this day are still, misunderstood and largely ignored by the courts. Indian custom adoptions were accorded no legal status. The adoptive parents were prevented from carrying out such basic responsibilities as consenting to their child’s medical needs. These are not historical arrangements of a time gone by. They are very much part of present-day reserve life. On one reserve, it was observed that there is not a grandparent who does not have at least one “grandchild” in his or her home.
Clearly the traditional system does not fit with the present legal system and the legal system operates as if the traditional system did not even exist. A few minor modifications to the Child Welfare Act will not make these systems harmonious. Codifying the traditional ways may interfere with its variations and flexibility. It would be inappropriate to make a few minor suggestions in these complex issues.
This whole area must be a matter of ongoing review. There must be opportunities to educate and familiarize the entire child welfare profession, particularly family courts and child welfare agencies, with the scope of customary child welfare arrangements, including customary adoptions.
In the legal adoption proceedings, great care is taken to assure that an adopted child or adoptive parents do not find out where the child came from and that the natural parents do not find out where the child went. It is as if adoption draws an impenetrable cloak of secrecy across the child’s lifeline. It is obvious from the many adopted children and natural parents
Autonomie politique des Indiens 3
who later seek each other that this is not always appropriate. Yet, it is an inflexible rule for all adoptions.
Especially for Indian adoptions, such secrecy is frequently, if not always, inappropriate. Traditionally, the mother or grandmother had the main say in where the child was placed and, depending on the situation, may or may not have had an ongoing role in the child’s life. Anxiety by the mother about who the parents were was avoided and there was no shame and secrecy about adoption as sometimes exists in non-Indian society. It was not second—class parenting.
That Section 92(1) of the Child Welfare Act be amended to permit the identifying and open sharing of information at the time of adoptive placement and thereafter, where this is desired by the natural parents and adoptive parents, without having to resort to the provisions of the post-adoptive registry.
Many Indian families have lost children through adoption. In the last 10 years, according to the A list of treaty Indian children, 1,006 treaty Indian children from Manitoba were placed for adoption and 911 of these children were placed with non-Indian families. Undoubtedly, many of these children were placed in homes out of the country. Even these statistics may not be complete, as reporting may have been faulty in earlier years. Some reserves have lost many of their young people and are still grieving their loss. Many of the children are seeking out their roots but do not know where to start looking, especially if they are living in the United States. They may not know of their treaty status or the rights and moneys to which they are entitled.
The present post-adoptive registry does not address any of these issues. It requires the registration of two parties and it is not authorized to seek out or inform individuals of their rights.
Chief Anderson: Recommendation 8:
That Section 92(2) of the Child Welfare Act be amended to enable the Director of Child Welfare to seek out adoptive families and adopted children in their teenage years, and especially in adulthood, to inform them of the existence of the post-adoptive registry and to inform the treaty Indian children of their rights and entitlements.
Furthermore the amendment should authorize the provisal of information to Indian bands and Indian child welfare agencies to facilitate their seeking out treaty Indian adoptees who have reached adulthood.
In the Indian society, the older generation of the community, especially grandparents, have an important role in the decisions with respect to their grandchildren relative to Indian custom adoptions and temporary placements.
That either by legislative change or by administrative procedure, the role of extended family members should be respected and encouraged in the legal planning process so that placements will be harmonious with the desires of the extended family.
The proclamation of Section 104 of the Child Welfare Act on subsidized adoptions has been long awaited. However, we are concerned that, due to short-sighted financial considerations, a very restricted program may be instituted with application to a small percentage of the children available for adoption. Some Indian families may be interested in legal de facto adoption, although others may be satisfied that their adoption is recognized in their community. Of those who wish a court adoption, many now receive some kind of support payment for the child through foster parents, guardian social allowance, educational allowance, etc. Because of poverty—line family incomes, they could not afford to care for these children without the continuation of some support. There are many Indian families whose limited financial resources are a barrier to adoption application, but who would otherwise be very suitable parents to children who are now placed outside the Indian culture.
Section 104 of the Child Welfare Act should be proclaimed and the wording of this section and related regulations assure the inclusion of low—income families who can provide suitable homes for children now in their care or for children in need of placement.
Indian people believe strongly in the importance of caring for their children within their own extended family and culture. The Spallumcheen Indian Band by-law and the Indian Child Welfare Act of 1978 (U.S.A.), Section 105(1)), both list preferred placements for native children, starting with family, extended family, home reserve, other reserves, other reserve Indian families living off the reserve, and only as a very last resort, considering non-Indian placement resources.
A similar list is part of the subsidiary agreement under which Anishinaabe Child and Family Services was established. The list of the priorities for placements are: (1) extended family; (2) home reserve; (3) Indian home, on or off reserve in the Interlake area, which is linguistically similar; (4) tribal council reserves; (5) Indian home in Manitoba which is linguistically dissimilar; (6) non-Indian home in Manitoba; (7) if the above have been exhausted, other resources as approved by the Regional Child Welfare Management Committee may be used.
A suitable list of priorities for placement of Indian children should be incorporated in the proposed Indian Child Welfare Act.
Mr. R. Daniels: Courts and judiciary process: When children are apprehended, there begins a process which is often very lengthy and incomprehensible to Indian parents. There are remands for service of notice, remands for legal aid applications, remands for particulars and often delays of two or three months to set a hearing date.
Parents may have to appear in court repeatedly, each time wanting an opportunity to explain their situation and get their children back, but each time faced with a further delay that everyone else seems to understand and accept, but to them, seems a denial of justice. They never seem to get a chance to tell their story to the judge. He seems indifferent to their plight, and even their own lawyer seems to accept the process.
Sometimes a social worker who is sensitive to the case agrees to drop the application and return the children before there is a hearing. Other times, workers coerce parents into agreeing to a temporary court order, because if they fight it, they will have to wait three months anyway.
There should be an opportunity for the parents to be heard by the judge on their first appearance in court. True, all the witnesses may not be primed by the lawyers prepared for the fight, but the essential circumstances that led to the apprehension are not known. In serious criminal cases, a preliminary hearing is held. Is not the removal of children as serious?
Judges of family law court are appointed because of their schooling and experience in law. Generally, however, they are unaware of the cultural and religious heritage of Indian people. This has been observed many times by Indian people and has recently again been highlighted in the media concerning an appeal court hearing.
Other jurisdictions have considered special measures to remedy this limitation of judges. For instance, in British Columbia, following the Berger Commission report in 1974, they established a panel system where two lay persons would sit with a family court judge to hear neglect cases. This was to redress possible social class bias among judges. There are elders in most Indian communities whose traditional role includes assisting in arbitrating family disputes.
A panel of lay advisers, especially Indian elders, should be established so that one or two may sit with a family court
judge in contested child welfare hearings to advise and recommend on cultural considerations.
On policy and procedural issues, the following are recommendations concerning policy and procedural changes which, if adopted and put into effect, would better serve the needs of Indian people.
Local child care committees, chief and council and the Indian child-caring agency must be consulted with regard to planning and decisions for children who are members of a particular band.
The band should be notified when a child from that band is registered for adoption. Notice should also be given to the respective Indian child-caring agency.
The language of a particular community should be recognized and respected, and where required, translators and/or interpreters should be sought and utilized. Efforts should also be made to distribute literature in the language of that community, explaining the services provided.
Cultural awareness should be a prerequisite for workers who serve Indian communities. Sensitivity to extended family ties, religious beliefs and traditional values are some of the concepts which should be known, understood and respected.
Foster care and adoption standards should take into consideration the socio-economic conditions of a particular Indian community. Caution must be taken not to discourage potential Indian foster and adoptive homes with ethnocentric standards which have little or no relevance within a given community.
The area of access to files should be given serious consideration for Indian children who have been adopted into non- Indian families. For example, when these children become adults and if they express the desire to know their past, they should have access to their files.
An Indian-staffed co-ordinating office should be established and funded in the City of Winnipeg to co-ordinate the planning and placement of Indian children who are taken into care by both Indian and non-Indian child-caring agencies to facilitate the networking between reserves and the urban community.
The need for federal Indian child welfare legislation should be examined.
Presently, we see Indian child-caring agencies trying to tailor the existing traditional child welfare system to meet the needs of Indian children and families. To accomplish our goals, we have stressed the urgency for immediate changes in various aspects of the existing legislation, policies, court process, procedures and standards.
But this is just the beginning, and it must be viewed as such. The concerns and recommendations presented here today have been a result of the shortcomings and deficiencies we have recognized in the existing system in the few months we have been in operation. As our agency develops and our mandate expands, other concerns will become apparent.
For us to respond to those concerns and for us to approximate a child welfare system that best meets the needs of Indian families in today’s society, there must be an ongoing process of change in regard to the existing legislation, policies, standards, etc., that will meet the needs and demands of Indian people. This ongoing process must have a high level of Indian representation if it is to be successful.
Although this is just a small part of the overall process, we feel the issues and recommendations which we have raised today are very real and important in the development of a comprehensive Indian child welfare system.
Therefore, Anishinaabe Child and Family Services strongly recommends the practice of out-of-country adoptions and placements of treaty Indian children must be permanently banned.
That is the extent of our presentation.
The Chairman: Thank you very much. We will now proceed with some questioning on the three submissions.
Mr. Manly, do you want to begin?
Mr. Manly: Thank you, Mr. Chairman.
First, I would like to thank the people who presented all three submissions. I will begin by asking a question relating to the last submission; and it is a general comment I am asking for.
In eastern newspapers, I often see pictures of children with descriptions; these children are available. In very many cases, these children are native Indian children.
I wonder if you could comment on whether or not that is a practice that takes place in Manitoba papers, if you are aware of that practice and what you feel it does to the children and to Indian communities.
Mr. R. Daniels: I believe the practice is still continued here in Manitoba in terms of the traditional agencies, such as the Children’s Aid Society of Winnipeg and so on. Are you referring to the pictures of children for adoption?
Mr. Manly: Are these printed in newspapers?
Mr. R. Daniels: Yes, I think that practice is still being used. But since the development of our child and family services, we have designated our workers as adoption workers in the community; and they interview the families and do the
assessments with the families who may be potential foster or adoptive parents. Also, there are recommendations from the child care committees on who would be suitable parents within the communities. That is the process we are using, which is more effective.
Mr. Manly: Right. Have there ever been any attempts to look at what the possible effects of this kind of advertising might be on the children involved? Do you have any suggestions about what the effects might be?
Mr. R. Daniels: There are two things that have to be mnsidered: to try to find a placement for the child, and also, mnsideration for the parents or the foster or adoptive parents. I’here are two parties involved, and both of these have to be taken into consideration.
We have not done anything in terms of the effects of this type of advertising in our agency, but I presume it would have an effect on the children. We are not using that process of advertising. Instead, we are approaching family members who would be interested in adopting and fostering.
Mr. Manly: Personally, I find that kind of advertising offensive; I wonder if you do as well. This is what I am really asking.
Mr. R. Daniels: We have not explored this in terms of whether or not it is offensive. We do not feel it is an effective way to find foster parents. This is not the method we use in a campaign to try to get foster homes or adoption homes.
Mr. Manly: Thank you.
In your submission, you set out a priority system for placement. Has this been implemented?
Mr. R. Daniels: The order of placement is being used presently in our area.
Mr. Manly: In your area. Is it being considered in other parts of Manitoba, do you know?
Mr. R. Daniels: Yes. Since the signing of the subsidiary agreements, it is also the order of priority for all of Manitoba, I believe.
Chief Anderson wanted to respond to your first statement.
Chief Anderson: In Manitoba I have not seen a public advertising of Indian children in the papers as yet, although it may have been done prior to setting up a program of this nature. Since we assumed greater responsibilities in this area, the adoption agencies, when they do have children for placement, send photographs, names and brief background information including where the children are from. This is being done through correspondence between agencies and the bands.
Mr. Manly: This strikes me as a completely different approach. I have one further brief question I would like to
address to Chief Stevenson from the Peguis Band. I appreciated your comments about the so-called optional legislation which the minister is developing. I suppose one of my concerns is that if some particular Indian bands wish to adopt this legislation, do you feel they should have the right to adopt it?
Chief Stevenson: I think it is specifically stated in there that if some bands so choose then it is their privilege to do so. I was speaking from the point of view of our particular band and I disagree with his proposed legislation.
Mr. Manly: Thank you very much.
The Chairman: Mr. Schellenberger.
Mr. Schellenberger: I want to make one comment on the brief regarding the child and family services. As I understand it, the United States dealt with the difficulties by means of a national child welfare act and yesterday the suggestion was made that what you have done here in Manitoba might form the basis of a national Indian child welfare act. In the brief, you outline some amendments to the provincial act. Is it your opinion, as it is the opinion of the other witnesses, that this might be the vehicle to provide a similar system to bands in other provinces which are facing the same difficulty? Are some of the suggested changes to provincial law similar to those which might be put into a federal overview type of legislation?
Mr. R. Daniels: What we have recommended for any federal child welfare legislation is that it has to be examined further. We are not, at this time, saying this is the answer; one of the options which should be considered is the examination of some type of federal child welfare act or national Indian child welfare act. This is just one of the options we are exploring. Current provincial legislation was never designed or intended for Indian people to begin with and this is what we have to deal with in child welfare now in light of recent agreements signed in Manitoba, including the master agreement and the subsidiary agreement. We are trying to tailor our services as well to include some of the concerns we have about our culture and so on.
Mr. Schellenberger: Yes. This is so important.
My next question is to Chief Stevenson. I appreciate the brief and the positions you put in it. You dealt with one situation which very few native people like to deal with— taxation. Your brief is clear on this. However, when you suggest there be something similar to, for example, transfer payments or block funding, it has been traditional that there are always matching funds in the provinces as far as the educational sphere, the welfare scheme and that sort of thing are concerned. I recognize that many bands or tribes in Canada simply have no funds to match, but there are some who do. If the band itself wished to tax to meet certain needs, would you have any disagreement? A tribal council may even do this for bands who have natural resources to share with others. Are you saying, simply, it is not something Indian people would ever want to deal with because it is not a traditional concept?
Chief Stevenson: I specified that it could be optional but from our point of view and in the firm belief of our elders, there are certain things agreed to in the treaties and one was that we would not be subject to taxation. As far as the funds between the federal and provincial governments are concerned, whenever the province expends moneys on behalf of treaty Indians, there is normally a bill-back to the federal government. In many cases they recover the money they spend on Indian people from the federal government.
Mr. Schellenberger: Many bands have programs which generate wealth and all this money goes back to the band. In a sense, this is a collecting of moneys to be put into other programs anyway. It is a form of taxation, in a roundabout way.
My other comments are on the first brief on which I commend you. I found it an excellent brief. I was not aware of the Wheeler-Howard Act but it is certainly something to study. Probably, there are some excellent suggestions in it which could be added to our deliberations and I really enjoyed the act because you dealt specifically with what we are trying to comprehend. As you got into the brief, you dealt with something I would like to question you on regarding the input of Indian people into the present system. You described the present strategic system and the way in which the cabinet deals with its envelope and its decisions. Are you then telling me that what you would like is to have Indian people from your tribal council or your area sit directly in the Cabinet committee to make decisions; or are you saying that there should be some national Indian body of some sort to do that for each band that would make a submission?
Chief Stevenson: Who are you directing the question to, and what presentation are you referring to?
Mr. Schellenberger: I am sorry. I said that I was referring to the first document read. It was the Brotherhood of Indian Nations, and I believe Chief Swan was reading the document.
Chief Swan: I think I would pass that question on to our adviser, Carrol Hurd.
Mr. Carrol Hurd (Senior Legal Adviser, Brotherhood of Indian Nations): Given the present system as it has been outlined here, and the budget committee prior to this outlined in some areas in greater detail how the system sort of works, as far as they have discussed, the chiefs sort of say, okay, how do you approach this? Do you at this moment in a sense recommend the dismantling of the system? Or, given the priorities which I think some of the other chiefs commented on in terms of how they see sort of the constitutional issues being in a sense settled, how can you then all of a sudden dismantle the system? I think the point they were making is that there would have to be some sort of an input into what is now the Cabinet system, if that is where the priorities and the national environments are really made.
It sounds like a strange notion, but it is not such a terribly strange notion. I do not want to comment on the failures because I know Roberta has far greater experience than I have, not being involved in that period with the Indian nations or with the Government of Canada. But the joint committee of Cabinet was in many ways sort of designed to do some of those things, or at least there was the possibility it could have been
designed to do those things. It faulted for other reasons.
Secondly, I understand you are going to the United States for several appearances. In my own background, prior to coming with the chiefs here and prior to being part of the system in Ottawa, I was heavily involved with the Indian nations in the United States. There is a system in the United States—which we did not refer to here because it is somewhat complicated, but I advise you to ask those questions and see this—in which there is an actual active involvement of the various Indian groups on the tribal group, which differs a bit more than the tribal council here, with actual input involve- ment within the Treasury Department and those recommenda- tions directed to the President of the United States and actually into the budget office committee, the bureau of the budget. We could go into that. But what I am saying is that I think to many people it does sound… If one views Indian people as citizens, as other citizens, or are they viewed as instruments or part of a political unit as government, it does not seem so strange to in a sense ask, as I think is pointed out here, some degree of involvement at level, if that is where the decision is going to be made relative to the actual decisions on planning the total environment, namely the Indian environment, and setting those kinds of priorities and which do come out in the question of actual dollars at some point, because that is where in a sense the priorities are laundered, if you please, and struck.
So the comment made here is that a request… or some provision be made where that input can be at that level, if at that level is where the decisions are made at the moment.
Mr. Schellenberger: All right, thank you.
The Chairman:Thank you, Mr. Schellenberger. Roberta Jaimeson
Ms Jamieson: Thank you, Mr. Chairman. Some of the questions I was going to ask have already been asked so I will not repeat them.
On the NIB cabinet process, just one comment. I think it is an interesting model to look at and to keep looking at. One of the things that maybe the members would be interested in is that there is a recent study on that which we might get for ourselves. It has been published. It is an excellent one.
But one of the problems with the NIB cabinet process—and I mention it now because the same problem was alluded to earlier today by the Joint Council of Chiefs—is that from the Indian point of view they were there sitting as equals ready to negotiate; from the government point of view they were there
chairing the meetings, willing to consult. I think we got the same problem in the exchange of memoranda. Anyway, we can go on about that for hours, but I just thought I would raise it.
I too was going to ask the question on flexibility for different approaches in different regions, but I see that has been raised and dealt with.
I wonder, Chief Stevenson, if I could ask you this. Earlier the chairman talked about a formula that might be used for transfer payments, and you said that at this moment you did not have a specific formula in your mind. In Alberta we had witnesses appearing on this item and they recommended that we look at an Indian fiscal arrangements commission which would deal with some of the issues such as formula and other mechanisms that would be required to get money from Treasury Board to Indian bands or Indian governments. They also talked about an Indian auditor general. I noticed in the brief you talk about joint accountability between the minister or the Department of Indian Affairs and bands, and I wonder if you have given any thought to the concepts of either an Indian auditor general or an Indian fiscal arrangements commission.
Chief Stevenson: To be honest, I have not given any thought to those areas. I guess at this point in time my main concept is that there are certain treaty obligations which the federal government is obliged to live up to. There are certain conditions or areas they must maintain, like health, education, the social aspects of it, and shelter. Based on those obligations, I believe that through their obligations and through the recognition of Indian governments an arrangement could be formulated whereby they are able to deal with those areas and fulfil their obligations and at the same time treat us as Indian governments. Whichever way it is going to evolve, I guess that will have to be worked out once we have convinced the government that they have to deal with us in the same fashion as they would deal with another government, like the province. Obviously they have worked out a system there where they are able to fund one government from another. If they are firmly committed to Indian government, I do not see why a similar arrangement cannot be made with the Indian governments. That is the extent to which I guess I have entertained it.
Ms Jamieson: Thank you. Just to follow that up a little bit, a couple of the earlier questions dealt with this issue and you talk about… First of all, I wonder if you think the treaty obligations should be modernized, because at the time of treaty signing shelter may mean a house, where today it may mean who knows what. Should that be modernized and should it be the subject of negotiation between representatives of the original people who signed the treaties?
Chief Stevenson: It is something that I have played within my mind, that perhaps there could be a resigning of the treaties, or a re-affirmation of them or whatever. But I think with a little imagination on both sides of the treaty signatures . . . you obviously have to think in terms of development of this whole country and development of Indians as well. I do not think it would be suitable or fair to say, you have a tepee so there is your shelter, not in today’s age anyway.
Ms Jamieson: I agree with you. Unfortunately, the federal government does not have a great track record in living up to its side of the treaty obligations.
One of the other concepts that has come up time and time again is the concept of the trust responsibility. Do you think it is contradictory for the federal government to have a trust relationship forever with Indian people yet transfer amounts of money for totally and exclusively Indian control? Do you see those two things as incompatible in any way?
Chief Stevenson: I guess my only answer to that would be that I view the treaties as lasting forever. As long as the sun shines, the grass grows and the river flows, those treaties are binding, and for whatever terms that the Crown agreed to maintain I think they are fully obliged to maintain them as long as the Indians are alive, as far as I am concerned. We have given up our land; it is gone forever; we are not going to get that back. You cannot take back those treaty rights because the government feels that the treaties should not exist forever. If that is the case, then the whole thing should be reversed—if that is even going to be contemplated, which I know will never happen.
Ms Jamieson: Thank you. Going on on the treaties, one of the areas that this committee is asked to look at is a treaty and aboriginal rights protection office.
Now, I know that this idea or concept has been around for at least 10 years that I can remember, and the idea has always been that because of the miserable record of the federal government in living up to its side of the treaty obligations there ought to be some kind of independent body to oversee how both sides are living up to the obligations. In Saskatchewan Indians have even suggested that they have the power to veto laws that might come through that are contradictory to treaties.
What do you think of that idea?
Chief Stevenson: I support that idea 100%, and I do not think there is any doubt that the Indians have maintained their agreement to those treaties. There is no question about that. I think it is the other party to the treaties that has to be monitored, and to monitor yourself is . . .
Ms Jamieson: Tough.
Chief Stevenson: —ludicrous.
Ms Jamieson: Yes. The other suggestion is that it should somehow be international so that it could rise above.
Chief Stevenson: Well, Indian nations are nations, and if there is an international forum to ensure that nations are
treated in the same fashion as other nations I do not think we should limit ourselves to just addressing our situation within the boundaries of Canada. I think we should have that same recognition internationally.
Ms Jamieson: Thank you, Chief Stevenson. I have one last question, and this is more a question of clarification than anything else.
This has to do with the statement by the Brotherhood of Indian Nations. Although you look favourably at the moment on the Indian Reorganization Act and some of the provisions within it, is it correct to say that your overriding position rests within the documents that you have cited: Charter of Rights, treaty and aboriginal rights principles, five-point resolution passed by the Assembly of First Nations in April of 1982? Is that accurate, or are you at this stage promoting the Indian Reorganization Act route?
Mr. Hurd: I think ifI interpret the chiefs’ position correctly the charter of 1980, the aboriginal treaty rights principles, is overriding, is fundamental, is basic.
The example used of the Indian Reorganization Act, the Howard Bill in the United States, is fairly crucial to a small word hidden in that act, and it is repeated here in the Assistant Secretary of the Interior, and that is the word “vested”. If you have noted, in almost the first sentence is the term “vested”.
Now, the point I am making of that, without making a lengthy argument, is that the charter from the chiefs’ viewpoint—who are signatories to that charter and also signatories to the aboriginal treaty rights principles of November last year—I think can be essentially said to express as clearly as it can be expressed that notion which you and I would use in the modern sort of language of law, if we can say, is that those are the things which are vested—right?—those are the things which are fundamental, and from those grow a number of things. Using the Indian Reorganization Act, if we walk through, I think, the eight points, is fairly comprehensive.
It talks about the distribution of justice, the question of justice, which obviously is a question of courts and police, etc.—i.e., the basis for the tribal courts in the U.S; the question of distribution and ownership of property—i.e., the whole question, as you know equally well, in terms of the Navajo renegotation of their contracts on the coal plants in the northern part of their reservation; the whole question of marriage and divorce, if I may use the modern parlance with reference to the child and family services. For example, a certain tribe does not have any relationship . . . At least when I was on the reserve, reservation, the question of marriage relationships, the question of property, the question of disposition of children, whether death or adoption or what, have no relationship to the state law of Arizona. Of course, the federal government of the U.S. has no jurisdiction in this area. That is all done by the traditional tribal systems. While, if you take the Shoshoni reservation in Wyoming, for example, they basically adopted the State of Wyoming’s regulations in this area.
So if you go through those, what I am trying to say—and the chiefs are using this because we have done a tremendous
amount of research and looking at these models and areas—is that I think it expresses the degree of comprehensiveness, if I may say that, about their perceptions of Indian government and growing not necessarily from the delegations of authority but rather from those powers which have not been ceded. .. i.e., given up explicitly—the treaties, for example, remain vested with the Indian governments.
Am I making myself clear on that?
Ms Jamieson: I think so. If I understand it then, you are using it as a kind of a guide because it is the best one you can find that lists the areas in which… Well, maybe I am not understanding.
Mr. Hurd: No, I think you are if you are getting out of what might be called the larger sort of metaphysical position, which I think is the charter and the aboriginal treaty rights. If you are looking at how those are translated into reality, the Indian Reorganization Act expresses those better than any other model that we have been able to find. There is a caveat there, obviously, that not all of the points in their full context as repeated here are in agreement, but they do express a kind of a goal, if you please. It expresses, I think, and puts in sort of reality those more metaphysical terms which are used in the charter and the aboriginal treaty rights principles.
Ms Jamieson: I think that is helpful, and I did note that there was the caveat that you do not necessarily just subscribe to each item as expressed in the Indian Reorganization Act because there are many Indian people in Canada who are very critical of it. Nevertheless, many have looked at it as a guide, as you have as well.
Mr. Hurd: If I may just respond to that, I am quite confident that the Anishinaabe Child and Family Services would view the National Indian Child Welfare Act of the United States as a guide or model, but I am quite convinced they would not adopt it in totality as the exact model for Canada.
Ms Jamieson: Just a last comment, and that is that I very much enjoyed the presentation on the Indian child welfare situation—very much. Thank you.
The Chairman: Thanks Roberta.
Ms Kane: To the child and family care people, I would like just maybe to add to Jim Manly’s line of questioning. You list your priorities for placement. Have you thought at all about extending your adoption services out of the province but to Indians out of the province?
It would be in keeping with the idea of a national child welfare act, because I notice that you go as far as an Indian home in Manitoba, linguistically dissimilar, and then after that you have to go to a non-Indian home in Manitoba, and I know that even on my own reserve, which is just south of Montreal, some people are having difficulty in adopting Indian children off reserve.
Chief Anderson: On page 12, in item number 7, we are saying:
7. If the above have been exhausted, other resources as approved by the Regional Child Welfare Management Committee may be used.
So we are not restricting or limiting the placements to the province or to our home reserves. But I think what. we are saying in the total context of this presentation is that we have, on our home reserves, available parents and suitable parents and suitable homes that these children could be placed in prior to us considering placement in other places. That is basically what we are saying.
Ms Kane: Yes; and I realize that this presentation was to the provincial government. I guess Ijust was interested in knowing whether you had thought about future developments and thereby extending your services to other provinces, for example; but again, to Indian families in other provinces.
My next question is in reference to the brief from the Brotherhood of Indian Nations. On page 22, a statement is made:
Under the existing rules, the strongest model of Indian input in the PEM System would be participation at the Cabinet and Committee level at all stages of the process.
Now, what did you have in mind when you talked about participation, say, at the Cabinet level? That is, are you advocating Indian members of Parliament in the existing parties? Might you be talking about a separate party? What are your ideas on that?
Mr. Hurd: I am not aware that the brotherhood has discussed in any great detail the question of representation in Parliament or the Senate . . .
Ms Kane: I see.
Mr. Hurd: —or even courts, as has been recommended, I understand, to the working group committees. What is envisioned here is some mechanism, or at least some representation, at that level. Again, I can only at the moment go back to the question of the joint Cabinet committee, as a kind of model for how that could be done. But I think it is fair to say until the chiefs have had an opportunity to discuss the question of representation, in, for example, the legislative body— whether that is the route where they perceive to have actual participation within the Cabinet itself. . .
Ms Kane: So when the term “Cabinet” is used here, it does not necessarily refer to the current system; the House of Commons Cabinet?
Mr. Hurd: It refers to the current system in terms of the Cabinet as an executive agency, if you can call it an executive office. But it does not refer to a member of the Cabinet who might be eligible for a seat in the Cabinet or be a representation on the Cabinet by virtue of having a seat in Parliament; not at this time.
Ms Kane: Okay.
My last one I would like to direct to Chief Stevenson.
I am wondering, in your Indian government and your plans for fully exercising your authority, have you done any work on,
or thought about some type of protection, I suppose, that you would offer to your individual members, and would there be some kind of a redress mechanism whereby these individuals could go and argue their case, for example, for anything ranging from loans to housing, employment opportunities, citizenship—anything like that; economic development opportunities?
Chief Stevenson: Obviously I do not think an Indian government should be allowed to be formed that will permit Indians to discriminate against Indians. 1 think with the development of Indian government probably a mechanism will have to be built in to ensure that Indians are not violating the same rights that the individual Indians have in relation to the treaties.
Ms Kane: Okay, so in the future you will be giving consideration to developing your own charter, I suppose, or an office to go with that.
Chief Stevenson: Yes, I think some safeguards have to be built in, and I guess there are a lot of common areas that all Indians across Canada could work together on, taking into account the diversity that exists amongst the Indian nations across Canada.
Ms Kane: Thank you.
The Chairman: Any further questions?
Mr. Allmand: I have a question for Mr. Hurd.
I have been reading the part of the brief you did not read, which deals with the constitutional questions. A good number of cases are cited and legal precedents referred to indicating that Great Britain, or England, at the time, always dealt with the Indian people in Canada on a consentual basis, by treaty, treating them nation to nation and respecting their sovereignty. You referred to the royal proclamation of 1763 and the case of Campbell v. Hall and so on. While you make a good case legally here—and I have tried to make similar cases, politically, on the other hand—I am asking this in the form of a question—it seems to me that we have also accused the colonizers, the British, the French, and their descendants, ourselves, of not really doing these things. While maybe the principles of British law and some of the things they did indicated respect, there was a bit of speaking out of both sides of our mouths. One moment we were issuing the royal proclamation of 1763 and the courts were saying this and treaties were… you refer to Lord Simcoe and the way he addressed the people. On the other hand, all sorts of chicanery was going on, which, the Indians could say, build up a record of incidents that Show that while we were saying this on one hand, on the other hand we were doing this.
Is it your feeling that there is enough evidence there in law so that perhaps despite some of our illegal activities and actions these were really nation-to—nation and bilateral agreements and it was not meant to be a colonial type of relationship with the Indians in any case?
Mr. Hurd: From my reading of the law—and also from my reading of a great deal of correspondence which I think we have alluded to in one section here, and of which there is a tremendous amount of which I think has not really been uncovered and put forward—I think the preponderance of evidence, if I can put it that way, is on the side of the percep- tion of nationhood;25 I mean on the perception of some degree of equality in dealing with it. For example, I know of no other way to explain the Royal Proclamation as such. If you read, for example, some of the larger works, more extensive works— one being Mr. Slattery’s work and work done, I think, in 1946, a Ph.D. dissertion, University of Chicago, it seems to me it gives the nation and the perception, not only legally but politically—I am not suggesting that politics kept up with it or vice versa and I am not suggesting the law is completely clean by any means—but there was a very large degree of equality, ifI may say that, in terms of the British, and in terms of the colonials dealing with what they thought were natives.
If that is not the perception, then I do not understand the whole concept of title to land. Right? By the way, you will note when you go to the United States that the United States accepts as a basic document in American constitutional law the Royal Proclamation, which Canada has never quite clone. Right? The treaties as basic international contracts which we . . .
An hon. Member: We did last year.
Mr. Hurd: Yes, we did last year, if. . .
Mr. Allmand: Included as one of the documents which . . .
Mr. Hurd: Right, and certainly mentioned now in the Constitution.
Mr. Allmand: Yes.
Mr. Hurd: So my interpretation is that there was this equality. It was designed to do that; it was perceived as that. So I think the Indian nations therefore, and the successors of the leaders of Indian nations, have a very strong case in law to raise the kinds of questions as to the perceptions of what is now. One of the reasons why the chiefs have put this forward, and why we worked on this in a very long way now, is that it is not so much to attempt to convince you of the rightness of the law; rather, it is an attempt to convince not only you and other persons that there is a perspective here. There is a long tradition, whether it is expressed in the law or whatever. There is the right to self-government; there is the right to structure things as they see—not on the basis of any devolution or delegation, but rather from their own inherent right.
So it seems to me that, if that perception is not kept clear, then the only other thing, it seems to me, which one can roll back on is again the necessity to decide what we are going to devolve, to give away, to the Indian people. And if that is the question, if I may comment, it seems to me that then even a forum like this loses its significance; if that position is clear, consultation then becomes the query: what would you like for us to give you? and not in the sense of asking what the foundation is—legal? metaphysical? philosophical? or whatever.
It took me a long time to learn this, working with not only the chiefs sitting at this table and other chiefs in Canada and the tribal governments of the United States; it took me a long time, as a young lawyer years and years ago, when I took a case in the U.S. Supreme Court on a land claim, to understand perceptions which I found difficult as a westerner: unless they would give me an example, then I sure enough would quit!
That is the whole concept of the division of people. I mean we talk about individual rights versus collective rights. This did not make sense to me for the simple reason that I could not understand how you could talk about not having individual rights. Then I began to examine the whole evolution of common law in this country, and how we got even from individual rights in the sixteenth and seventeenth centuries to the question of, sort of, social interest. I mean, we have a right other than simply as a person, and the state has to come in and say, look, you cannot do that to him.
Now we come into the whole area in which the state has something to say about unemployment; it has something to say about health; it has something to say about these large collective rights, if I may say so. I think what I am trying to illustrate to you very quickly as I perceive it, it is: the Indian concept of collective rights is something that we are now beginning to work into; that society as a whole owes us something. Right? I mean, we belong to something larger. Therefore, it is not a question of privilege in terms of health care, or unemployment, or whatever it is; it becomes the collective whole which now has something to say about this.
An hon. Member: And unemployment rises . . .
Mr. Hurd: No. I just wanted to give you my perceptions on . . .
Mr. Allmand: Fine, I appreciate that. That is what I was looking for. Now I have two very quick follow-ups. From the reading you have done in this area, do you think that Britain took this approach vis-a-vis the Indians in North America . . . well, they have a mixed colonial experience around the world where they did not do these things, in Africa, Asia and so on. But from your reading of evidence, do you think they did it because there was a strong quid pro quo in this case? Did they want the Indians as allies to help them with trade, and therefore they put forward these principles perhaps more consistently than they did in some other places in the world, where they walked in with their guns? From your reading of history, could that be the reason why we see such principles expressed in these legal documents?
Mr. Hurd: Yes, I think that is quite clear. I do not want necessarily to get into the whole question of what was the motive, but I think the evidence is quite clear that the Indian people or Indian nations, however described, were very much needed. So in that sense, I think you do develop a quid pro quo. That is the political aspect of it. Right? Once that need is gone, then perhaps the fundamental legal base begins to
disappear or begins to be whittled away; the political aspect then becomes less than consistent, relative to what is called exploitation, assimilation and so on.
Mr. Allmand: Despite this evidence, why do you think Indians have lost so many cases in Canada? As examples, the people on this side should have walked away with the Nishga case, the Calder case. I cannot remember all of it; I am learning more every day about these things. And there were cases in Canada which ruled, unlike in the United States, that the treaties here are just contracts and not international. I know in the Calder case the Indians had a lot of good legal advice, but in some of the earlier cases they were not present and precedents were built up. I tried to go to certain high- powered people in Canada to argue the same case as you do, but the judges have decided contrary in some instances.
Mr. Hurd: I have no answer for that, Mr. Allmand; I have no answer for that! But just as a comment, if you take some of these cases such as Calder, and start it at its original court of first instance and follow it right on through, in terms simply of the kind of evidence and arguments that were put forward, or you felt could have been put forward, I find I stand in total amazement as to why they did not walk away in that sense.
Mr. Allmand: Thank you.
The Chairman: Any further questions? No? There being no further questions then, on behalf of the special committee, I want to thank the Brotherhood of Indian Nations and Chief Stevenson who spoke on behalf of his band, the Peguis Indian Band; and the Anishinaabe Child and Family Services people—all for the work which has gone into these submissions. We are grateful to you. Thank you very much for appearing before us this evening.
Chief Swan: On behalf of the brotherhood, I thank the committee members for having the patience to listen to us. Thank you very much.
The Chairman: Thank you, sir. For the final submission this evening, I call next for the Greater Winnipeg Indian Council, Mr. Roy Cantin, Conrad Spence, Mrs. Joyce Spence, Mrs. Jean Courchene.
The Chairman: Thank you very much. You may proceed.
Mr. Cantin: Thank you, Mr. Chairman. I would like to welcome this committee to the biggest Indian reserve in Canada. There are an estimated 12,000 to 25,000 treaty Indians in Winnipeg which makes Winnipeg the biggest Indian reserve in Canada.
The committee members are urged to take a short walk around Portage Avenue or Main Street or any other street or bar or restaurant in the city where you will see Indians, I guarantee you. Many different ones. You will see young teenagers roaming the streets; God knows how their lives as adults will be. Many Indian adults have ended their lives living on the back streets and skid rows in places like Winnipeg.
Well, that is only part of our story as urban Indians and we have now begun to question. Why do not treaty Indians living in the city receive those services that are guaranteed under the treaties? These services include decent housing, education and proper medical attention from the federal level. The Indian Act does not say anything about where we should live but rather guarantees that certain things be made available to treaty Indians. My interpretation is that the treaty rights do not end at the boundaries of the reserves.
I suspect the provision of not having treaty Indian services in off-reserve situations is probably against the new Canadian act.
For instance, Section 6.(2) Mobility Rights in the new Constitution guarantees freedom of movement of all Canadians, and I quote:
6.(2) Every Citizen of Canada and every person who has the status of permanent residency in Canada has the right:
a) to move and to take up residency in any province; and
b) to pursue the gaining of a livelihood in any province.
These mobility rights should not have limitations of residency anywhere in Canada for treaty Indians. We have the right to live anywhere and we should be allowed to carry certain aboriginal rights in the same principle as portable pension plans.
Treaty rights go beyond the borders of the reserve: I speak only for the status Indian of the City of Winnipeg, and it is felt that the federal government is not absolved of its responsibilities to status Indians simply because an Indian leaves the reserve. Does the government not realize that we are citizens of our particular band, citizens of Canada, the province or municipality or city where we reside? But wherever we live in Canada does not make us less of a treaty Indian.
Before you give aboriginal rights to anyone else, we want you to understand that urban status Indians will not give up treaty status and rights without a fight.
Recommendations: Treaty rights in the form of federal services, including special status, should be extended to any treaty Indians who live anywhere. Any town, any village, any reserve, any city or, indeed, any province or territory in Canada. We understand that land cannot be transported anywhere, but certain other rights such as housing, education and medical services should remain a federal responsibility.
That mobility rights, as guaranteed to every citizen of Canada, be extended to treaty Indians without restriction or limitation; and that these mobility rights include the transportability of treaty rights such as the existence of transportability of pension rights in Canadian law.
The Chairman: I think what we will do, Mr. Cantin, is proceed with the other presentations and then we will put questions on all four of them, if that is acceptable to you. Will that be agreeable?
Mr. Cantin: Yes.
The Chairman: The next one is by Conrad Spence. Will you proceed, Mr. Spence?
Mr. Conrad Spence (Adviser, Greater Winnipeg Indian Council): Yes, I want to show my appreciation at being given the opportunity to participate. I just want to make a preface before I go into my written presentation itself.
I think the situation you see here before you is very typical. It typifies the Indian situation in the Indian rights relationship historically, in 1982. I think it is evident initially by the lack of documents that are prepared by lawyers, professionals and whatever. I just want to make that point clear. Nevertheless, we are committed and I think obviously that is why we are here. As I said, I think it typifies the situation, ambiguities that exist when dealing with the Indian question.
It is very significant of course . . . it is rather amazing as a matter of fact—that we are also the last group to be presented here today. We share, I am sure, your discomfort and tiredness, so we appreciate your efforts.
I think it is also typical, and you will notice that when we do sit with representation it seems we have to wait our turn. I am not complaining about that, but I think there are reasons for that. I will leave you with those thoughts in mind.
Nevertheless, the fact is that roughly 30% of the population— if we use government figures… are people that are living off reserve right now. To that extent I think it is very significant, because we ask ourselves the reasons why that is the case, and I think you have had some indications from various Indian leaders here today. But we are faced to live with
that reality on a daily basis, us guys, you see, so we will try to share some of those in terms of what happens as a result of the lack of Clear identification either from government specifically or the Indian people themselves.
My comments in terms of the assimilation policy of all levels of government, which is reflected in no better place than right here in Winnipeg, are based on the situation as I see it.
The Indians residing in Winnipeg are in an impossible situation whereby the City of Winnipeg affords no recognition to the Indian fact. The provincial government hasralso taken a position with the qualification that Indians are the my of the federal Department of Indian Affairs. Of course, the position of the Indian Affairs department regarding urban Indians is by now nationally known; that once an Indian has left the reserve boundaries he becomes the responsibility of the provincial government.
This policy of putting urban Indians to live in a stateless society and without a homeland could only be considered as a deliberate attempt to force assimilation on the Indian people of Canada A clear illustration of this situation is the Core Area lnitiatives Program of Winnipeg which was setup in large measure because of the so-called Main Street Indian problem. The Core Area Initiatives Program would not consider proposals submitted by the Indian representative group, up until now, and the only cases where Indian proposals. would be Considered by that group is when those Indians align themselves with other groups, such as church groups, or consider themselves as natives, which is not the legal handle for status Indians and otherwise would be prepared to denounce their natlonal heritage. We hold the view, because we are the ople of Canada, as represented by our treaty at we do represent an Indian fact in the urban setting
Therefore, Indian government, as I see it, has to include the provision for the representation of all Indians, whether they Choose to reside on or off reserve. Anything less would be considered meaningless and only paying lip service to the issue from all concerned.
The urban Indian situation of Winnipeg typifies the reality of the Indian and non-Indian relations in Canada today. Migration trends of Indian people into the urban centres of Canada are likely to continue, which would have the potential of increasing the need for services to Indians in general.
The Indian representative group of Winnipeg has to be given the responsibility and the resources to plan and to develop programs that are consistent with Indian government principles of Community participation.
l included a couple of appendices to illustrate further the point and for background in terms of documents. It is just one of the Various documents, but I think it certainly typifies the
situation that we find ourselves in with regard to Indian Affairs policy, such as, let us say, asking for secondment of a person to assist the Indian people, the Indian community, to participate and utilize the extra money that. is available to the core area program for Indian people.
The other document is just a background in general terms that the Winnipeg Indian Council is probably the only council as such in Canada, as far as we know, that is in fact part of an Indian government system right now. We are part of the First Nations Confederacy, as the document will show.
Thank you very much.
The Chairman: Thank you, Mr. Spence. The next presentation is by Joyce Spence, who is an adviser with the Winnipeg Indian Child Care Services of the Greater Winnipeg Indian Council. Mrs. Spence, would you like to proceed?
Mrs. Joyce Spence (Child Care Adviser, Greater Winnipeg Indian Council): Thank you. In Winnipeg, in Manitoba, and across the country, the subject of the apprehension of Indian children has become an issue. The placing and adoption of Indian children in other countries and with families of other cultures is stealing the Indian child’s future and also the ancestral heritage known to be in existence for several thousand years before white people got here. We want this left intact for our children.
Perhaps these white people will understand by this example. If we were in the decision-making position with their white children and we happened to send their children to Pakistan— no insult to Pakistan intended—which is of course a different culture, I wonder what they would say, or would they even care? Well, ladies and gentlemen, it has been the Great Spirit’s right to us to be born as Indians and no one has the right to take that heritage away from either us or our children.
When agreements were made with chiefs, urban Indians were left out. It is recommended:
I. That the federal government exercise its right to status Indians and, in particular, to treaty Indian children born or deserted off reserve to ensure their existence, care and upbringing in an Indian manner consistent with their cultural heritage.
2. That the Manitoba Indian child welfare agreement be amended to include urban treaty Indians; or that a separate agreement and agency be set up in the City of Winnipeg which would restrict the care and adoption of Indian children by Indian families, and this agency should be referred to as the “Urban Treaty Indian Child Care Agency of Winnipeg” and should be funded by federal allocations; or that an amendment be made to the Manitoba Child Welfare Act to facilitate the control of Indian child care to the Indian people of Winnipeg.
The Chairman: Thank you, Mrs. Spence. There is a fourth document which will be presented by Jean Courchene, President of the Urban Women’s Association. Mrs. Courchene.
Mrs. Jean Courchene (President, Urban Indian Women’s Association): Thank you. I am the last to be heard, but the one with the last word in.
As an Indian woman, I would like to give you an interpretation of how some of us women view ourselves as Indians.
First, we are part of an Indian race which originated in and once owned the whole of what is now called the western hemisphere. We will not forget this, nor will we allow our children to forget this.
Those people who came across the “big waters”, to whom we refer as the original “boat people”, and their descendants (yourselves) who now control our lives have to understand that it does not make me feel good to go before you, asking for my aboriginal rights.
Maybe to those Indians who have married whites it is a question of losing rights; but to me, it is an insult because these people are relinquishing their Indianness and their Indian race in favour of another race. I think it is a shame these women, who have turned against their own people, are able to convince this white government a bad thing is being done to them.
It is my feeling we Indians are the real losers, because what they are doing is more damage than your armies have done. They are breaking down the Indian race and culture by not having enough pride in us to stay with us. Who are the losers, we or they?
As urban Indian women, we are working hard to restore family ties, pride in our Indian race and a way that our Indian children will have pride in their ancestral heritage, whether it be Cree, Ojibway or any other Indian people of Canada. We intend to do this by standing by our Indian leaders, whether they be male or female. It does not matter to us, because if we elect them, then we elect them to represent us.
My friends, this will be the foundation of the Indian family and a restoration of our various Indian cultures in Canada. We have prevailed over 400 years under conditions I do not care to discuss; and believe us, we will survive and maintain.
Recommendations: The question of membership should be determined by each community; treaty Indians living in the
city should have the authority to establish their own membership, the same as any band council.
The Chairman: Thank you, Mrs. Courchene.
Some of our members have some questions they would like to ask. I would like to begin with Mr. Allmand.
Mr. Allmand: First, Mr. Chairman, Mr. Spence referred to some documents which he distributed to us. He did not read them, but I think they are so important they should be part of our record.
One is a letter from the regional director general to Mr. Frank Courchene, explaining that they would not assist this Winnipeg Indian Council. I would like to make sure we have in the record the reasons he gave. I am wondering if that is possible.
The Chairman: Yes. It is suggested by Mr. Allmand that the letter from the regional director general be appended to today’s proceedings. Is that agreed?
Some hon. Members: Agreed.
Mr. Allmand: Also, there is a very important document, the resolution of the all chiefs’ conference of the Four Nations Confederency, recognizing they represent not only the Indian bands in southern Manitoba, but also the Winnipeg Indian Council. I think that is very significant, because for chiefs to do that. . . There are only two pages. I am wondering if that one could be agreed to as well.
The Chairman: Is that agreed?
Some hon. Members: Agreed.
The Chairman: It is so ordered.
Mr. Allmand: My questions are mostly to Mr. Spence or Mr. Cantin, either one. It is about the briefs they gave us.
Are most of the Indians in Winnipeg from the bands and reserves around Winnipeg, or at least, Manitoba? Would you happen to know that? Most of the ones you know; you probably have not asked them all where they come from, but are most of them from Manitoba?
Mr. Spence: No, because of the size of Winnipeg, for instance, and the location of it, its being in a central part of Canada, I think it is safe to assume there will be members from all parts of Canada residing in Winnipeg. In fact, our council itself does not distinguish members. To be members of the Winnipeg Indian Council, they do not have to be necessarily from Manitoba bands as such.
Mr. Allmand: I was not suggesting they should be. But I was going to move on to another question. I thought, if a good number of them came from the bands in Manitoba and even near to Winnipeg, have the chiefs of those bands in Manitoba ever been approached to do the things you have been asking? In other words, you ask in the brief that they be assisted, for
example, with housing money for a band, that some of that housing money should go to their registered band members here in Winnipeg. If there are health funds, some of it should go to them in Winnipeg. In other words, when they get funded as bands on a per capita basis—and I am not saying it is that great an amount, but I am just trying to get at the principle of the thing—as you say in your brief, you should carry those Indian rights whether you are on the reserve or off the reserve. Have you ever been able to approach some of the chiefs to ask them to accept that in principle, that they would fund their band members even here in Winnipeg, if they are here in sizeable numbers?
Mr. Spence: That has been done on an individual basis by members who were involved with the council. Again, I think it points out the reality of the Indian situation at the reserve level. That is precisely why we are faced with this kind of situation.
On the one hand, the resources at the reserve level . . . It is hard enough as it is for any chief to be able, even if he wanted to—that is the political reality, unfortunately—to allocate x number of dollars, say for housing, from each member of a band. For instance, we are able to identify that a third in some bands are non—residents, some of the member bands in Manitoba, in the southern parts, for sure. Even at that, if we were to use that rationale . . .
But to be fair with the chiefs as well, we have been in existence for eight years and it is just now getting to be part of the reality of 1982. To get a document like that from the chiefs, for instance, is significant; and I am sure you will appreciate that. Also, more significantly, even from the level of the chiefs themselves and their own resources, to be able to commit themselves to allow the council to have some meaning- ful input in the consultation process . . .
We have been notified, for instance, today of all times, as a result of the efforts of the FNC people, the province is now prepared to give us a few thousand dollars so we can have some public workshops of this type to involve the Indian people in Winnipeg themselves.
Mr. Allmand: That was going to be my next question. I was going to ask you where you get your funds to run your Winnipeg Indian Council. Have you been getting any funds from the City of Winnipeg, the province or the federal government until now?
Mr. Spence: That is another reality: that although there are federal departments such as Secretary of State, for instance, we have been notified that there is a policy set in place. But again, the reality is this. FNC . . .
Mr. Allmand: The First Nations Confederacy.
Mr. Spence: Yes, the First Nations Confederacy get their per capita basis, I suppose, on the basis of the Indian population; and the friendship centre, for instance, or a centre like this, also uses the same numbers. So we are put in a situation
where to go back to fund people three times around gets a little difficult. But I like to believe, as a result of the last couple of weeks anyway, with some of the discussions we have had with some of our leaders from the First Nations Confederacy and the staff there… as a result, as I have said, of their direct efforts, we have now been able to get some resources, financial resources, and we can address some of these things in a more detailed manner.
Mr. Allmand: Did you tell us that you did go to the Secre- tary of State division, what they call the migrating Indians division, and ask for money?
Mr. Spence: Yes, we made a submission to them approxi- mately a year ago, and there was an update again last week. Our head man, Mr. Courchaine, who unfortunately is not here with us today, had accompanied a contingent from FNC to bring some update on that. Unfortunately, the situation has not changed there yet. But we did make a presentation, a quite lengthy, detailed document.
But about the difficulty we faced and the reality that we do not have any resources, let us say, even to begin to have a core staff—even the proposals that we do now have, a number of them, in the Core Area Initiatives Program—some of them are 60 or 70 pages long, very detailed documents. This has been done through voluntary effort.
Mr. Allmand: You just have volunteers?
Mr. Spence: Yes.
Mr. Allmand: Thank you very much.
The Chairman: Thank you, Mr. Allmand. Mr. Manly.
Mr. Manly: Thank you very much, Mr. Chairman. I would like to thank the representatives from the urban Indians of Winnipeg for their presentation.
There are a lot of very interesting situations in here. Speaking of housing, yesterday the Dakota Objibway Tribal Council in its presentation spoke about the problem with urban housing. They pointed out that they formed a non-profit housing authority with the help of CMHC and in conjunction with the Native Council of Canada, and that they have negotiated some special funding arrangements and low-interest loans with CMHC that allow them to purchase homes and provide them to low- and moderate—income native people at a reasonable cost. Are you aware of this program?
Mr. Cantin: No, we are not aware of this program. If there is a program like that, it must be very recently done. The federal government does fund off-reserve housing, but it is very difficult to get this kind of housing. It shows some of the problems that Indian people have, living in the cities. They have restrictions there such that Indian people cannot qualify for most of this off-reserve housing.
Mr. Manly: I have some specific questions that I would like to ask, first of all of Mr. Cantin, about future political development of Indian government.
Do you believe off-reserve Indian people should have the right to vote in band elections?
Mr. Cantin: I will get one of my advisers to answer that.
Mr. Spence: If I may, Mr. Chairman, in keeping with the concept of Indian government, I think we are consistent in that. We respect the system that is in place now; that is, it is the prerogative, if I may call it that, of each band to decide whether they allow non-resident members to vote in their elections or not. That is the case in Manitoba, and we are quite satisfied with that. Otherwise, I think it would be infringing upon the concept of Indian government itself.
Mr. Manly: I would like to ask Mr. Spence some further questions.
With 30% of the Manitoba Indian people living off- reserve—and you opened up your submission by talking about assimilation policies—are you able to observe that assimilation taking place amongst the Indian people who have moved into Winnipeg?
Mr. Spence: Whether or not you call it assimilation, changes obviously are taking place. That is an acceptable thing, and if that is the choice that Indian people make, I think it should be their choice. What I said before about the assimilation thing— many times things do happen and we just cannot believe they are happening right on our own doorstep. We do not have to go anywhere else for anybody to give us a definition of the process of assimilation.
Basically, I make those kinds of statements not only for the benefit of all of us here, but for our Indian brothers. I think they have to be aware of what is happening around us, more importantly.
The assimilation process is taking place. I made that case here in Winnipeg. We have a number of examples we can give out, documents from other government agencies that are there to provide jobs, like the LEAP program, for instance, where allocations of dollars are made available for native involvement, Indian involvement, or native involvement and women and Indian youth. The reality of it all is that—and I sit on the LEAP board here in Winnipeg, representing the Winnipeg Indian Council, for example. The allocations there are proposals that go through and that are submitted by non- Indian groups, say in child care. These are organizations that have been there, credible—and those are the kinds of things that take place.
There is no better way, for myself anyway, to describe the assimilation process taking place than to ignore someone. You are not there.
Mr. Manly: Two weeks ago a report was released that indicated that on-reserve economic opportunities are limited. Some people might disagree with some of the findings of that
report, but the general tenor of it was that with the increasing Indian population in Manitoba, more and more people are going to be moving into urban areas, thus exposing themselves to the whole process of assimilation. Do you have any recommendations about the way in which assimilation can be resisted or slowed down?
Mr. Spence: We take the view that it does not have to happen. I will give you an example, again in Winnipeg, in this Core Area Initiatives Program. I think that is why it is so typical.
There are various interest groups that are recognized and accepted in the City of Winnipeg. Chinatown, for instance: people look forward to having a beautiful Chinatown here in Winnipeg very shortly, as part of that Core Area Initiatives Program. Obviously that is a Chinese community. Nobody questions whether they should cease to be Chinese to participate in that program. I think we can add something to urban life as well; to the mosaic of Winnipeg life itself. But it would have to be recognized that we should not be forced to call ourselves native.
Another example, if I may add to that—I think it is rather significant. . . and these are public statements that would be relevant long before the Core Area Initiatives Program would come into place. They called it—the newspapers across Canada—it was quite a thing here for a while that every four or six months, on the average, some news-media person from across Canada would discover the Metis-Indian problem. Big deal. But strange things happen; at least to some people, anyway. Once money became available and something was to be done about the problem, then there was no reference any more to Indians. Now it was to be native. Now, if you follow the logic towards a logical conclusion, if you are a native, then anybody could be native. If you are here for one year, you are a native of Winnipeg.
So that is my argument about the assimilation process I think is taking place. We have no other way of looking at it right now.
Mr. Manly: You find that it is very important for you to maintain a separate identity, as opposed to non-status Indians or Metis people or any other native group there might be?
Mr. Spence: Absolutely. I think it is a beautiful thing if you look at it that way. Everybody preaches that as the kind of country that Canada is supposed to be: being accepted by everybody else. All of a sudden, why should the roles not apply for Indian people because now there are so many of them in one area in Winnipeg, for instance?
Mr. Manly: Do you find that there is a growing incidence of marriage to non-Indian spouses amongst the Indian people of Winnipeg?
Mr. Spence: I think you have to be fair. It would require some in—depth analysis on that to make an affirmative statement. But I think if we just followed the pattern that has developed over the last few years in the numbers, and more so those coming into Winnipeg, certain things of course are bound to happen, not only that.
Mr. Manly: Jean Courchene, in your submission you suggest that when Indian people marry non-Indian people, they are in a sense deserting their race. Would you feel that way about both men and women who marry non—Indians?
Mrs. Courchene: Yes.
Mr. Manly: But it is happening a great deal amongst some of the urban Indian people.
Mrs. Courchene: I do not know how often it takes place, but it does.
Mr. Manly: Is this an opinion that is shared with the other people in your organization? And do you have any plans or programs to prevent that amount of intermarriage?
Mrs. Courchene: No, we do not have any programs to prevent these marriages. It is up to the individuals to make their own choices.
Mr. Manly: I would simply make the comment that I know some Indian people who have married non-Indians and they would feel that this was not really a denial of their own pride in being Indian, but is just the way love happens. Have you ever thought of that?
Mrs. Courchene: People are allowed to make their own decisions.
Mr. Manly: Thank you. Thank you, Mr. Chairman.
The Chairman: Thank you, Jim. Ms Jamieson.
Ms Jamieson: Thank you, Mr. Chairman. I really only have a comment, rather than a question. I enjoyed the briefs and I think they speak for themselves. It is really, if I am not mistaken, the first opportunity we have had to hear from a group of Indian people in an urban area. I welcome that. I also noticed in the DOTC brief yesterday about the housing, but I do remember their saying that it is very recent, so maybe you will be hearing about that in the near future.
In any event, the comment I wanted to make is that, as far as my understanding of the allocation of dollars for Indian people goes, the allocation of Indian Affairs to bands is very often not done on a per capita basis but, where they do do it, they only calculate on reserve residents. Their policy, as I understand it, is that off-reserve residents are totally a provincial responsibility. They have a time period on that— and maybe you can help me on this. It seems to me that it is a year, 12 months—or 11 months. I think it is 11 months. If you are off reserve for 11 months or more, you are no longer an Indian for the purpose of federal services. Maybe you can clarify that for me?
Mr. Spence: There are two issues there really, as I see it, Ms Jamieson. I can appreciate . . . that is the stage we are at right now. We will be sitting very shortly with the All-Chiefs Budget Committee, as part of that process, to identify those kinds of areas. I think that is a positive direction—number one.
The other thing I want to comment on, though, is another reality of Winnipeg. There was a study done here for a six- month period to identify social assistance dollars that were paid back to the City of Winnipeg. It amounted to something like $6 million, with a 10% surcharge for administration. It is a little puzzling, when you look at it that way. All of a sudden, the Indian fact is recognized in that instance and, as far as we know, it is still there. Further to that document . .. unfortunately, we were trying to get hold of that today but we could not—it seems arbitrary; it is one of these policies that are made tomorrow and changed again, that type of thing. Precisely, again, it just points out the dilemma we are in. There are no safeguards within the Constitution and the Indian Act identifying the rights of Indian people… being here. The City of Winnipeg submits its bill without question, I would imagine.
Ms Jamieson: Just for clarification purposes, to whom did they submit their bill? Was it Indian Affairs?
Mr. Spence: Indian Affairs.
Ms Jamieson: And Indian Affairs paid them?
Mr. Spence: Indian Affairs paid them, yes.
Ms Jamieson: Plus 10%?
Mr. Spence: Plus 10% for administration. Those are the kinds of things… if we had the core funding and the core staff, some of those technical resources, I think a case could be developed whereby, why cannot part of an Indian government system such as ours be able to administer those kinds of programs for our own people? Because we lack the resources to do that, that is the way it remains right up till today.
Ms Jamieson: Do I understand it correctly, then, that the Winnipeg Indian Council wishes, and from your recommendations— which I hope you will read in a minute—would like to be given the responsibility for delivering services that rightfully belong to status Indians living in Winnipeg? At the same time, you are happy to respect and support Indian government exercised by bands, or otherwise as Indian people choose, on reserves or wherever they choose to do so. Is that right? And you consider yourselves citizens of those Indian governments and governed by those Indian governments, but your concern is for service delivery in the city?
Mr. Spence: Yes, precisely, that is the case. As we understand the concept of Indian government, it fits into that. In the allocation of administrative services for child care, for instance, or social assistance, no, it does not take away any of the moneys that otherwise would have gone to the reserves, in this case, or to local band budgets. But if there were a law of Indian participation, it would recognize the Indian community here in Winnipeg as a fact.
Ms Jamieson: Thank you very much. That is all, Mr. Chairman.
The Chairman: Thank you, Roberta. Marlyn Kane.
Ms Kane: Thank you. I commend all of you for the presentations that you have made. I assure you, Mr. Spence, that
even though you may not come forth with a 65-page document and lawyers and things, we take what you are saying as seriously as the others.
I think some of what I probably have to say is just going to be comments. In the line of whether Indians off reserve are taking part in band elections or not, Jim Manly has already asked something to that effect. What I was going to ask was whether any of the urban Indians are in fact voting at the reserve level and, if not, why not? Maybe you do not know. Do you not have that kind of information?
Mr. Spence: No, that is no problem. The case, as it is right now, is that some bands do allow their members to vote and take part in the elections and some do not.
Ms Kane: I just wondered whether you are aware… I would say that in the cases where the bands are disallowing, it is because they are following the election procedures as outlined in the Indian Act. Under those procedures, there are sorts of rules or regulations set down for residency, so oftentimes it is not the choice of the chiefs and councils, they are just following the act.
With respect to the presentation on child welfare, I would suggest that if you have not done so already, you share your expertise with some of the child and family service organizations that are set up, like the Anishinaabe one we heard from earlier and DOTC. I think you have some really valid concerns, having to get involved in that type of thing in the city.
I guess I feel that in terms of the position of some of the urban women, I can agree to some extent with what you are saying. I guess I for one am more and more becoming a believer in not intermarrying. The only thing, though, is that I would say that the Indian Act as it is is encouraging intermarriage to an extent, and that is that Indian men do not lose any rights but their non-Indian spouses gain. I would say that in some cases that provision is encouraging intermarriage of female non-Indians to Indian men. They become members of the community and, in some cases, have a great deal to benefit by doing that.
On the other hand, because of the strength of Indian women in the family unit—and you point out that you are working hard to restore family ties, pride in your race and the way our Indian children should be brought up—I suggest that it is unfortunate in cases where Indian women are having to leave their communities because of provisions of the Indian Act.
I agree with you that everyone has freedom of choice. However, in the case of losing and gaining rights the choice is not the same; that is, the Indian man has a choice that the Indian woman does not have.
That is all I want to say on that. Thank you.
The Chairman: Thanks, Marlyn. Mr. Schellenberger, you had a question.
Mr. Schellenberger: I have a question regarding education. I was talking to a lady here earlier who told me that it was costing her $960 to send her daughter to grade 11 this year from April until January, which is only half a year so for the full year it would be close to $2,000.
We have been made aware that Indian Affairs no longer covers off-reserve educational costs. I am not sure I understand if that is in-you have mentioned 30% of the cases—all the children. I would imagine a lot of those are now going under the provincial system with no cost of tuition. But there may be certain instances where there is a price for tuition, and I wonder if you could explain to me just who is paying. How does a status Indian off reserve have to pay for education? Why are they not allowed to go to the provincial school system without any cost?
I recognize that you would rather that they would perhaps go to an Indian school; but, if not, there should be some system to provide for that. Could you just explain quickly how that works? Who is paying and why?
Mr. Spence: As far as we are aware, there are some tribal councils which administer on behalf of all their band members, and in certain situations it has been the case—up until last year anyway—that they will recognize the responsibility of the tribal council to look after education requirements for Indian people. However, they have put themselves in a situation, of course, where they have taken that upon themselves and find very shortly thereafter that they could not: they were not authorized to do this; they were not funded, again, for those kinds of needs. Consequently, as it stands right now, where a situation arises—and most times the Indian parents are responsible just like any other citizens. In some cases they are able to manage that, and in some cases they are not. Of course, it creates a lot of hardship. But again I guess it just points out the old question of what our rights are.
Mr. Schellenberger: Well, if you are off reserve and earning an income, you would be paying taxes; therefore you would have the right to send the child to a provincial school. Is it the people who are not paying taxes who have to pay to send children to school? I suspect if they wanted to they could send the child back to the reserve and, as you say, then the reserve or the tribal council would have some duty to provide the education and could get funding through the federal government. I do not think you have clearly told me who is paying and why, because why is this lady having to pay for her daughter to go to grade 11 here in Winnipeg?
Mr. Spence: Yes. As I said before, I will try to shed some light, as we see it anyway, and that is because, again, the policy seems to be with Indian Affairs that once you have left the boundaries of the reserve you have become in all means as a responsibility of the system itself. Now, of course in some cases that works. What else is there to do? If you cannot, then you are just like any other citizens who cannot afford to do that. I do not think children have been kept out of school as a result of that, but I cannot really tell you at this time. I do not
have specific, detailed information as to what happens in certain different instances in those kinds of cases for sure, except that we are aware, of course, of why those kinds of things are happening. That is what we are concerned with: that we feel those, obviously.
Mr. Schellenberger: Could it be perhaps that if a person leaves school—a young person legally can leave school, I guess, at 14, then would decide to go back—there would be a tuition paid, but if they stayed in school there should not be a tuition. I do not know. I want to find out and I thank you for whatever help we were able to come to. Thanks.
The Chairman: Thank you, Mr. Schellenberger. Mr. Fontaine, did you have something you wished to add?
Mr. Melvin Fontaine (Greater Winnipeg Indian Council): Yes, I was going to present something today, but it was in regard to the off-reserve Indians being involved in the constitutional talks. I thought it was very important. I have asked the council if there was going to be any involvement at all, but we found out today that the Greater Winnipeg Indian Council did receive some money to put up some workshops in regard to the Constitution. That was about it; that was going to be the basis of my arguments.
There were three points that I was going to bring up. Being an off-reserve Indian for maybe 10 or 12 years, and wanting to establish myself in the society off the reserve, I was going to come as an individual representing my family. I saw the need to help myself become a self-sufficient citizen of Canada and help contribute to the growth of this country.
Now, there are stipulations. I requested the Department of Indian Affairs to assist me, and they told me bluntly at the offices: you are not an Indian any more when you come out of the boundaries of the reserve so go back to the reserve and we will help you. Once I come out there is no economic development. There are reasons why I left the reserve. Number one is to better myself and better my family, and the only way to do it was to get out of the reserve, but the opportunities are not there.
I have some ideas on how to eliminate some of the problems that Indian people face, but no one listens to me. Like the assimilation—I am not an Indian any more; I am a native so I have to identify myself with somebody else, which is a non-Indian.
So I was going to talk about three rights anyway. Number one was the Constitution. Number two is I feel that as off-reserve Indians, treaty Indians, we have the right to actively participate in dialogue with the Government of Manitoba on the matter of the Indian people’s right to self-determination. This is evidently necessary as it relates to the Government of Manitoba being a significant part of the Canadian political structure.
By necessity, any discourse on treaty and other rights must be accompanied by provincial government involvement as there is existing legislation affecting treaty and other rights.
An example is the Manitoba Natural Resources Transport Agreement (1930). This is to ensure that special provisions in any federal or provincial statutes are not eroded but rather guaranteed.
This again offers evidence that we have the right to significant control over our destiny by increasing and developing essential skills in major areas of economic development. Indian people must be given the opportunity to develop comprehensive educational and training programs to ensure that essential skills are developed effectively. Once this is achieved, we will acquire the continuing right to contribute to the growth of the country. This is what I was going to present today.
The Chairman: Thank you, Mr. Fontaine. Are you an active member of the Greater Winnipeg Indian Council?
Mr. Fontaine: To a certain degree, yes.
The Chairman: I see. Thank you very much. Any further comments or questions?
Mr. Spence: Mr. Chairman, to include a couple of recommendations . . .
The Chairman: Yes, please.
Mr. Spence: The core area agreement of Winnipeg should reflect the fact that there are approximately 25,000 off-reserve Indians who should have the rights to share in the above funds, particularly the federal portion. A monitoring system should be implemented to ensure that these funds are equally shared or allotted to the treaty Indians of Winnipeg. Further, the Greater Winnipeg Indian Council, as the representative of treaty Indians of Winnipeg, should be given the responsibility for monitoring the amount of moneys and energies expended towards treaty Indians in the City of Winnipeg.
In closing, I would like to reiterate the question on the section of the Indian Act dealing with membership where it identifies membership on a general list. We have had some discussions with legal counsel and with various people on this. It would seem there was a mechanism which could be put in place where a group like the Winnipeg Indian Council could establish their own membership. This has to be clarified further within the act itself. We recommend, whatever act is put in place, ensuring in the future the possibility of Indian groups across Canada, if they so choose and within certain criteria of course, allowing this within the existing act. It talks of six or ten members forming a certain band without land, for instance, and this is a discretionary thing. We would like to recommend that this section be included very clearly as a right for Indian people living off-reserve. They should have the right, under this particular kind of section, to establish their own band membership as part of the Indian government system.
The Chairman: Thank you very much, Mr. Spence.
As Ms Jamieson said, this is the first opportunity we have had to hear from an organization of Indian people living off- reserve and who have formed themselves into an urban council. Therefore, your contribution to our deliberations is important and we are grateful to you for having come today and waiting, probably, quite a while before you could make your presentation. We thank you for your patience.
Before we adjourn, I would like to express, on behalf of the subcommittee, a word of thanks to Mr. Cliff Richard of the Friendship Centre for all of his services today. I am sure we disrupted the normal program of the Friendship Centre. I know we did because I got a number of notes about parking. However, we are grateful for having had such good facilities to meet. I want to thank the Friendship Centre very much for this.
The meeting is adjourned. We will reconvene tomorrow at 1.30 p.m. in the City of Thunder Bay, next door to the Sleeping Giant.
Indian and Northern Affairs Canada
275 Portage Avenue, Room 1100
WINNIPEG, Manitoba R3B 3A3
September 28, 1982
Greater Winnipeg Indian Council
650 Burrows Avenue Our file E—6417-1 (EX)
Dear Mr. Courchene:
We have now reviewed all options available regarding the possible secondment of a Departmental officer to work with the Greater Winnipeg Indian Council. It is my regret to advise that the proposal cannot be favourably considered, and I will explain.
The operational planning process, as well as management improvement program, have placed extensive demands on our allocation of human resources. In light of this, we projected our staff requirements over the next fiscal year and identified a shortage of manyears.
The second factor that we had to address was the unresolved relationship between the Federal Government and off-Reserve Indian organizations. The authorities are not yet in place to qualify our involvement and therefore this had to be taken into serious consideration.
The third factor influencing our decision was the secondment policies of the Federal Government which limited our flexibility.
Your comments regarding the secondment of Departmental staff to the Winnipeg Core Initiatives Program are well-founded and we are re-assessing our position on this as well.
As I mentioned, it is unfortunate that we cannot be of assistance at this point in time. We wish you every success in your endeavours and trust that we can maintain a communication liaison with the Greater Winnipeg Indian Council.
B. J. Veinot
Regional Director General
Indian & Inuit Affairs
c.c. G. T. Hodgson
G. F. Kelly
ALL CHIEFS CONFERENCE
RESOLUTION ON THE PROPOSED POLITICAL STRUCTURE FOR THE BANDS IN SOUTHERN
MANITOBA AND THE GREATER WINNIPEG INDIAN COUNCIL
WHEREAS, the member Chiefs of the Four Nations Confederacy recognized the need to develop a political organization responsible and accountable to an assembly of Chiefs; and
WHEREAS, the members of the chiefs of F.N.C. recognize the need to entrench the power and authority of Chiefs and to affirm the role of the Chiefs as a primary leadership of the Indian people, and
WHEREAS, a national development on Indian leaderships clearly indicate a development towards the recognition and affirmation of Chiefs across Canada as the primary and sole political leaders of Indian society, and
WHEREAS, the Four Nations Confederacy as it is presently constituted fails to promote and recognize its member Chiefs as the highest form of political authority of the Indian people at the provincial level, and
WHEREAS, Chiefs of the Four Nations Confederacy wish to more adequately represent regional diversity within the structure of the political organization, and
WHEREAS, Chiefs of the Four Nations Confederacy wish to put in place an organizational structure committed to enhancing the transfer and development of the program responsibility to the Band and Tribal Councils, and
WHEREAS, the proposals on the reorganization contained in the discussion paper on a proposed political structure for the bands in southern Manitoba, and Greater Winnipeg Indian Council have been developed according to this principles,
BE IT RESOLVED that the Assembly of Chiefs of Four Nations adopt the basic proposed structure proposed in the discussion paper on proposed political structure for the Bands of Southern Manitoba and the Greater Winnipeg Indian Council, and
THEREFORE BE IT FURTHER RESOLVED that the assembly of Chiefs of Four Nations Confederacy proceed immediately to discuss and review and implement the new political structure of an assembly of Southern Chiefs, Council of Chiefs and Secretariat, and
BE IT FURTHER RESOLVED that a new constitution establishing the new political structure be drafted by a Council of Chiefs and be presented to the Assembly of Sourthern Chiefs for their review and ratification at the earliest possible time.
MOVED BY: CHIEF VICTOR STARR
SECONDED BY: CHIEF BUSHIE
QUESTION CALLED: 10 – in favor
6 – opposed
From the Manitoba Indian Education Association:
Mr. Bill Thomas, Chairman of the Board.
From the Indian Women’s Council of Manitoba:
Ms. Maria Flett, President.
Ms. Lynda Neckoway, Co-ordinator North Region.
Ms Donna Fontaine, Co-ordinator South Region.
Mr. Ken Young, Legal Advisor.
From the Joint Council of Chiefs and the All-Chiefs’ Budget Committee of the Assembly of Manitoba Chiefs:
Chief Ernie Daniels, Vice-Chief, Prairie Region Assembly of First Nations;
Chief Charlie Constant, Pas Band.
Chief Harvey Nepinak, Waterhen Band.
Chief Joe Guy Wood, Ste. Theresa Point Band.
Chief Jim Bear, Brokenhead Band.
Mr. Ovide Mercredi, Legal Counsel.
Mr. Joy Kaufman, Policy Consultant.
Mr. Murray Sinclair, Legal Counsel.
From the Brotherhood of Indian Nations:
Mr. Larry Amos, Tribal Administrator.
Chief Raymond Swan, Lake Manitoba Band.
Chief Edward Anderson, Fairford Band.
Chief Louis J. Stevenson, Pequis Band.
Mr. Robert Daniels, Co-ordinator, Anichinaabe Child and Family Services.
Mr. Carol Hurd, Senior Legal Advisor.
From the Greater Winnipeg Indian Council:
Mr. Roy Cantinm, Acting Headman.
Mr. Conrad Spence, Advisor.
Ms. Joyce Spence, Advisor, Winnipeg Indian Child Care Services.
Ms. Jean Courchene, President, Urban Indian Womens’ Association.
Mr. Melvin Fontaine, Off-Reserve Indian.