Minutes of Proceedings and Evidence of the Special Committee on Indian Self-Government, 32nd Parl, 1st Sess, No 40 (12 October 1983)
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Date: 1983-10-12
By: Canada (Parliament)
Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Committee on Indian Self-Government, 32nd Parl, 1st Sess, No 40 (12 October 1983).
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HOUSE OF COMMONS
Issue No. 40
Wednesday, October 12, 1983
Thursday, October 20, 1983
Chairman: Mr. Keith Penner
Minutes of Proceedings
of the Special Committee on
Indian
Self-Government
RESPECT:
The status, development and responsibilities of band
governments on Indian reserves, as well as the financial
relationships between the Government of Canada and
Indian bands
INCLUDING:
The Second Report to the House.
First Session of the
Thirty-second Parliament, 1980-81-82-83
SPECIAL COMMITTEE ON
INDIAN SELF-GOVERNMENT
Chairman: Mr. Keith Penner
Vice-Chairman: Mr. Stan Schellenberger
Messrs
Allmand
Chénier
Manly
Oberle
Tousignant
(Quorum 4)
François Prégent
Clerk of the Special Committee
Pursuant to Standing Order 69(4)(b):
On Wednesday, October 12, 1983:
John McDermid replaced Frank Oberle.
On Thursday, October 13, 1983:
Frank Oberle replaced John McDermid.
Photo Credits:
Canadian Government Photo Centre, National Film Board of Canada
Department of Indian Affairs and Northern Development
Department of National Health and Welfare
Mrs. Eva Manly
Mrs. Ethel Pearson
Mrs. Barbara Reynolds
MEMBERS OF THE SPECIAL COMMITTEE
ON INDIAN SELF-GOVERNMENT
*See PDF for photos
ORDERS OF REFERENCE
Special Committee on Indian
Self-Government (Task Force)
HOUSE OF COMMONS
Wednesday, December 22, 1982
ORDERED,—That a Special Committee of the House of Commons, to be composed of
Mr. Penner, Mr. Allmand, Mr. Chénier, Mr. Tousignant, Mr. Oberle, Mr. Schellenberger
and Mr. Manly be appointed to act as a Parliamentary Task Force on Indian Self-Govern-
ment to review all legal and related institutional factors affecting the status, development
and responsibilities of Band Governments on Indian reserves, including, without limiting the
generality of the foregoing:
(a) the legal status of Band Governments;
(b) the accountability of band councils to band members;
(c) the powers of the Minister of Indian Affairs and Northern Development in relation
to reserve land, band monies and the exercise of band powers;
(d) the financial transfer, control and accounting mechanisms in place between bands
and the Government of Canada;
(e) the legislative powers of bands and their relationship to the powers of other juris-
dictions;
(f) the accountability to Parliament of the Minister of Indian Affairs and Northern
Development for the monies expended by or on behalf of Indian bands;
(g) all items referred to in section “H” of the report of the Sub—committee on Indian
Women and the Indian Act;
and make recommendations in relation to the above questions in regard particularly to possi-
ble provisions of new legislation and improved administrative arrangements to apply to some
or all Band Governments on reserves, taking into account the various social, economic,
administrative, political and demographic situations of Indian bands, and the views of Indian
bands in regard to administrative or legal change.
That the Committee, in carrying out its review, take into account:
(a) the jurisdiction of the Federal Government under section 91(24) of the Constitu-
tion Act, 1867;
(b) the recognition and affirmation of existing aboriginal and treaty rights of the
aboriginal peoples in section 35 of the Constitution Act, 1982;
(c) the current economic restraint program of the Government;
(d) the fact that a First Ministers’ Conference will be held for the purpose of identify-
ing rights of the aboriginal peoples.
That the Committee have all of the powers given to Standing Committees by section (8)
of Standing Order 65;
That the Committee have the power to retain the services of expert, professional, techni-
cal and clerical staff as may be deemed necessary;
That the Committee have the power to adjourn or travel from place to place in Canada
and the United States;
That, notwithstanding the usual practices of this House, if the House is not sitting when
an interim or final report of the Committee is completed, the Committee may make the said
report public before it is laid before the House, but that, in any case the Committee shall
report to the House finally no later than the first Monday following Labour Day;
That all the evidence adduced by both the Sub-committee on Indian Women and the
Indian Act, and the Sub-committee on Indian Self-Government during the first Session of
this Parliament, be referred to the Committee;
Provided that alternates appointed pursuant to temporary Standing Orders be named
later.
ATTEST
C.B. KOESTER
The Clerk of the House of Commons
Monday, September 12, 1983
ORDERED,—That the present mandate of the Special Committee on Indian Self-Gov-
ernment be extended to the end of the current session.
ATTEST
C.B. KOESTER
The Clerk of the House of Commons
Section H of the report of the Sub-committee on Indian Women and the Indian Act (as
referred to in section (g) of the Special Committee’s Order of Reference):
H. AREAS FOR FURTHER STUDY
Your Sub-committee has made note of several areas which require further study and
which should be considered by the second sub-committee or otherwise given attention:
1) that the elimination of the entire concept of enfranchisement be studied further;
2) that an Office of the Aboriginal Rights Commissioner to protect the recognition of
special rights of aboriginal peoples in Canada be considered for a function analogous
to the Commissioner of Official Languages;
3) that the Indian Act be reviewed so as to reinforce group rights and to bring the Act
in line with international covenants;
4) that traditional practices such as marriages, adoptions, etc., not be restricted or dis-
criminated against by the Indian Act;
5) that discrimination in the Act against men, and against children be examined; .
6) that a formula and process be devised for provision to Indian communities of land
and resources for persons added to band lists as the result of the removal of discrimi-
nation clauses from the Indian Act;
7) that a means for band control of membership criteria, process, decisions and appeals
in accord with international covenants be instituted;
8) that the subject of the rights of non-Indians such as residency, political and legal
rights, retention of rights on death or divorce, be studied.
The Special Committee on Indian Self-Government has the honour to present its
SECOND REPORT
In accordance with its Orders of Reference of Wednesday, December 22, 1982 and
Monday, September 12, 1983, your Committee submits the following report:
ACKNOWLEDGEMENTS
Since the Special Committee on Indian Self-Government began its work over a year
ago, many people have been called upon to assist the Committee in its work. The Committee
would at this time like to thank all those who participated in its deliberations and con-
tributed to this report.
First, the Members wish to express their gratitude to all the witnesses who appeared
before the Committee (see Appendix A). Others did not appear but submitted written briefs.
The contribution of all those who took the time to share their views was invaluable to the
Committee.
The Committee is also grateful to the Clerk of the Committee, Mr. Francois Prégent. to
his colleague, Mr. Eugene Morawski, and to the other staff from the Committees Branch for
their administrative support.
The drafting of this report was the result of many hours of work on the part of the writ-
ing team set up by the Committee to analyse and summarize the mass of evidence it
received. The Committee thanks the four members of this writing team, Mrs. Barbara
Reynolds and Mrs. Katharine Dunkley from the Research Branch, Library of Parliament,
Mr. Peter Dobell from the Parliamentary Centre, and Rarihokwats, researcher for the
Assembly of First Nations. Their efforts were greatly appreciated.
The Committee also expresses its appreciation to the other Members of Parliamert and
representatives from native peoples’ organizations who devoted time to its work (see Appen-
dix 8).
Finally, the Committee wishes to thank the assistants and researchers in the Members’
offices, who made an important contribution to the work of the Committee (see Appendix
H).
REPORT or THE SPECIAL COMMITTEE
ON INDIAN SELF-GOVERNMENT
CONTENTS
Page
Chapter 1: Introduction ……………………………. 3………………………………………………………………. .. 3
The Committee’s Mandate ……………………. ……………. …………………………… .. 3
Ex Officio and Liaison Members ………………….. ………………………………. ………. .. 4
Relationship with Other Aboriginal Peoples ……………………………… . .. ………… …. .. 5
The Special Committee Process ………………………. ………………………………………. .. 5
Powers of Committees ……… ……………………………………………………………………. 6
Terminology ………………… ………………………………………………….. ………………. 7
Chapter 2: Setting the Stage ……………. …………………………………………………………………………. .. 11 .
Indian First Nations ………… ……………………………………………………………………….. . 11
Conflicting Views of History ……………………… ……………………………………………. .. 12
Social Conditions ……………………………………………… ……… …………. ……………. .. 14
Obstacles and Limitations …………………………………………………………………………….. 14
Chapter 3: Three Areas of Critical Concern ………………………………….. ………………………….. .. 27
Education… ………………………………………………………………………………………………. .. 27
Child .. ……………… ………………. .. 31
Health Care ………………………………………………………………………………………………… .. 33
Chapter 4: Self-Government for Indian First Nations ……….. ……………… .. . ….. …………….. .. 39
The Need for a New Relationship ……. ……………………………………………………. .. 39
International Experience …… ………………. …………………………………………………… .. 42
Establishing Self-Government …………………………………………………………. ………… .. 43 I
The Courts …………… …….. ………….. .. .. ……………… …………………………………… .. 45
The Bilateral Process ………………….. ………….. …………………………………………… .. 45
Legislative Action ……………………………………………………………………………………….. .. 46
Chapter 5: Structures and Powers of Indian First Nation Governments ….. ………………….. .. 53
The Starting Point …………………………………………. …… ……………………………….. .. 53
Membership …………………………………………………………………………………………………. .. 54
Flexible Arrangements ……….. ……………… ……………………………….. ………. ….. .. 56
Constituting Indian First Nation Governments …………………………………………….. .. 57
Ministry of State for Indian First Nations Relations ……. ……………………………. .. 60
Recognition ………………………. .. ………………………. ……. …………………………… .. 61
Special Funding ………………………………… ………………………………………………….. .. 62
Facilitating Negotiations ………………………. …………………. ……………………… .. 62
North of 60° ………………………………………………………… ………………………………… 62
Scope of Powers ………………………………………………………………….. …………………. .. 63
Accommodating Differences ………………………………. ………………………………….. .. 65
Non-Members Living Away From Reserves …………………….. ………………………… .. 67
Chapter 6: The Economic Foundations of Self-Government ………………. …….. ………………. .. 71
Obstacles to Development ………………………………………… ….. ……………….. ….. .. 73
Case Studies ……………………………………. ……………………. . …………………………. .. 74 E
New Arrangements …….. ……………………… ……………………………….. ………. ……. .. 75
A Special Development Bank ………………………………………………………………… …. .. 76 3,
Chapter 7: Fiscal Arrangements …………………………………………….81
Deficiencies of Present Arrangements………………………….83
Conclusions of the Research Report…………………………….87
Need for New Funding Arrangements ……………………….. .. . ….. ………………….. 93
Basic Requirements of New Arrangements … 94
Establishing Accountability ……… ……………….. ………………………………….96
Source of Funds ……………………… ……………… ..97
Funding Principles ……………………………………………………………… .. . …………… ..98
Disbursing Funds ……………………………… .. ………………………………….. ……… 99
Funding of Bands Not Opting for Self-Government .101
Conclusion …….. ……. ..101
Chapter 8: Lands and Resources ………. ……………… .. ……….. ……. ………….. .105
Introduction ………………………….. …………………………………………… 105
Reserves ……………………………………………. ..106
Indian First Nation Lands and Resources……………………………109
Indian Interests in Other Lands……………………….110
Lands North of 60° …….. 1111
Restoration of the Land and Resource Base …………………………………………….. .. .111
The Resolution of Claims ……………………… ……………………….. . .. …………….. 113
Chapter 9: The Trust Relationship ………………………. . …………………………………… 119
The Crown and the First Nations……………………………………..119
Advocacy of Interests…………………………………112
The Trust Accounts…………………………….125
Chapter 10: Conclusion ……………………………………………………………………………………… ..133
The Future of the Department . ……………………..133
Parliament and the Indian Peoples …………….134
Accommodating Diversity……………136
Conclusions and Recommendations . . . . . ………………….. ……… . . . ……………….. ..141
Appendices
A. Witnesses Who Appeared Before the Committee ……………149
B. Other Members Who Participated ………………………. …. . .. …………………………. 173
C. Indian Institutions ………………. ………. …………….. …………………….. …………………….175
D. Federal Government Structures Dealing with Indian People ……………….. .. . .. .. .. 179
E. How the Committee Organized its Work ……. …………………………… .185
F. Research Projects Commissioned by the Committee ………….191
G. Meetings in the United States …………. . . . . . . …………………………………………. …. ..197
H. Committee Staff……………………………………. . .. …… …… ………… …. …………………….199
INTRODUCTION
*See PDF for image
I sit
on a
man’s back
choking him
and making
him carry
me and yet assure myself and
others that I am sorry for him
and wish to lighten his load by
all possible means – except by
getting off his back.
—Leo Tolstoy, What Then Must We Do?,
1886. (Quoted in a submission to
the Special Committee by
The Mayo Indian Band, Yukon)
CHAPTER 1
INTRODUCTION
The Committee’s Mandate
The Standing Committee on Indian Affairs and Northern Development had, over the
years, received substantial evidence from Indian people about the numerous difficulties they
were experiencing in their financial, institutional and legislative relationships with the fed-
eral government. Consequently, in its Fifth Report to the House of Commons on June 1,
1982, the Committee asked for authority “to examine the government of Canada’s total
financial and other relationships” with Indian people. On August 4, 1982, the House of
Commons responded to this request with a two-part Order of Reference.
The Committee was first directed to form a sub-committee “to study the provisions of
the Indian Act dealing with band membership and Indian status, with a view to recommend-
ing how the Act might be amended to remove those provisions that discriminate against
women on the basis of sex”. Known as the Sub-committee on Indian Women and the Indian
Act, its report was approved by the Standing Committee and tabled with the Clerk of the
House of Commons on September 22, 1982 as the Standing Committee’s Sixth Report.
Pursuant to the second part of its reference, the Standing Committee then appointed
another sub-committee, which it called the Sub-committee on Indian Self-Government. This
sub-committee was directed, among other things, to make recommendations to Parliament
“. . .in regard particularly to possible provisions of new legislation and improved administra-
tive arrangements to apply to some or all Band Governments on reserves taking into account
the various social, economic, administrative, political and demographic situations of Indian
bands, and the views of Indian bands in regard to administrative or legal change”.
In December 1982, the House of Commons revised its committee rules. As a result, the
House decided on December 22 to upgrade the sub-committ.ee to a special committee. The
reference from the House of Commons specifically stated that the Special Committee was to
be known as “The Parliamentary Task Force on Indian Self-Government”, an important
recognition by the House of the inquiry’s .broad nature. Eight matters the Sub-committee on
Indian Women and the Indian Act had recommended for further study were added to the
Special Committee’s reference. A copy of the Special Committee’s orders of reference can be
found on page v. The Special Committee chose to interpret its mandate broadly, so as to
allow witnesses maximum flexibility in offering suggestions about how the relationship
between Canada and Indian people should be changed.
The Special Committee was also directed to take account of the Constitutional Confer-
ence of March 1983, held for the purpose of identifying and defining the rights of aboriginal
peoples. The Constitutional Conference had an influence on the Special Committee’s work.
Although the Committee’s study and the constitutional talks were two quite separate pro-
cesses, some of the issues overlap, and this proximity created some confusion. In some cases
witnesses expressed the fear that the Committee was pre-empting the constitutional process.
Some witnesses, particularly those in Alberta, where the Committee travelled in late 1982,
felt strongly that no discussions about change in the legislative relationship between Canada
and Indian peoples should occur until aboriginal and treaty rights were identified and
defined in the Constitution. Still others, while recognizing the necessity of constitutional
action, acknowledged that there could be a positive role for legislation.
To emphasize the distinction between its task and the constitutional discussions, the
Special Committee suspended its hearings for a short period surrounding the Constitutional
Conference. Immediately before the Conference, the Committee issued a press release that
drew no conclusions but outlined relevant testimony the Committee had heard relating to
issues before the Conference. Members of the Special Committee also attended the Confer-
ence as observers.
At the Conference an accord was signed to continue the constitutional process and to
place the subject of self-government on the agenda of the next Conference. The Committee
thus believes that its report on self-government could be of assistance to those participating
in discussions at the next Conference. Moreover, the implementation of some of the Special
Committee’s recommendations will require constitutional change.
Ex Officio and Liaison Members
At times throughout its hearings the Special Committee was received with some scepti-
cism. As mentioned earlier, some witnesses felt that the Committee should not have been
formed until after the constitutional issues had been resolved. In a number of cases there was
uncertainty about the role of the Committee, particularly with respect to the Indian band
government proposal initiated by the Department of Indian Affairs and Northern Develop-
ment (DIAND). Many witnesses referred to the consultations held in 1967 and 1968 for the
purpose of amending the Indian Act and the subsequent introduction of the 1969 White
Paper which, they felt, did not reflect the views they had given. In still other cases, witnesses
did not distinguish between the Special Committee and the Standing Committee (many of
its members are the same) and took the opportunity to air grievances against the Depart-
ment. Committee members had to emphasize constantly that the Committee was not a con-
sultative mechanism on the DIAND Indian band government proposal and that the Commit-
tee was quite separate from the Department. As well, in some places, notably Alberta,
Saskatchewan and the Maritimes, objections were raised to the presence of the ex officio or
liaison members of the Committee. All of these reactions reflected a sense of mistrust and
uncertainty about the Committee’s role and responsibilities.
Relationship with Other Aboriginal Peoples
It should be pointed out that the Special Committee was directed to examine Indian
self-government, not aboriginal self-government. The Committee therefore devoted its
efforts exclusively to discussing changes in the relationship between Canada and Indian peo-
ples, even though the Constitution identifies three aboriginal peoples—Indians, Inuit and
Métis. Inuit were not among the witnesses. Although some Métis people were included as
witnesses as part of delegations from the Native Council of Canada and its affiliates, the
Committee did not have a mandate to report on issues of concern to the Métis.
The Special Committee Process
To ensure that the Canadian public was informed about its work, the Committee placed
advertisements in various newspapers throughout Canada and used the media as widely as
possible to publicize its activities.
The Committee received information in three principal ways: from oral testimony at
public meetings where members questioned witnesses; from submissions made in writing;
and from the research projects it commissioned. To give prospective witnesses an idea of the
range of items under study, the Committee distributed a list of sample questions that wit-
nesses might expect to be asked. Included in the list were questions relating to structures of
government, the process of achieving self-government, fiscal relationships, the delivery of
services, economic development, and treaty and aboriginal rights.
The Committee endeavoured to hear as many oral presentations as possible from Indian
governments and from other organizations and individuals. Criteria were established for the
selection of witnesses to ensure a representative cross-section of Indian bands and organiza-
tions. The Committee heard a total of 567 witnesses, during 215 oral presentations. Wit-
nesses’ names and affiliations are listed in Appendix A.
To obtain first-hand information, the Committee travelled to all regions of Canada. Of
its 60 public meetings, only 21 were held in Ottawa. The Minister of Indian Affairs appeared
before the Committee in Ottawa on four occasions; officials of the Departments of Justice,
Secretary of State, and National Health and Welfare also testified. The Assembly of First
Nations and the Native Women’s Association of Canada each appeared twice in Ottawa and
the Native Council of Canada once. Among the other witnesses in Ottawa were two Indian
organizations and seven Indian bands and governments who were unable to meet with the
Committee during its cross-country hearings.
In its travels, the Committee generally tried to hold meetings on reserves or native
premises. Of the 39 hearings on the road, 14 were held on reserves, 9 in friendship centres, 3
D.C., to meet with United States government officials and with U.S. national Indian organi-
zations (see Appendix G). This trip continued to five Pueblo reservations in New Mexico.
The Committee also sought evidence through research projects. Four major subjects
were identified as significant areas where specialized information was required. Research
projects from private consultants were commissioned on the following subjects:
1) federal expenditures and mechanisms for their transfer to Indians;
2) the First Nations and the Crown, a study of trust relationships;
3) relations between aboriginal peoples and governments in other parts of the world;
and
4) the economic foundations of Indian self-government.
When the studies were completed, the researchers met with the Committee in camera to pro-
vide brief overviews of their reports and respond to questions. These studies proved to be
valuable aids in the preparation of this report. More detailed descriptions of them can be
found in Appendix F.
The Committee was originally scheduled to table its final report on September 12, 1983,
but was unable to complete its work by this deadline. Consequently, the Committee tabled
its First Report on Monday, September 12, 1983, requesting that its mandate be extended to
the end of the current session. The Committee’s First Report was concurred in by the House
and thus the Committee continued its work.
Further details on how the Committee organized its work are provided in Appendix E.
Powers of Committees
The House of Commons Special Committee on Indian Self-Government is a parliamen-
tary body made up of representatives from the three political parties. It can make recom-
mendations to the House of Commons, but implementation requires action by the govern-
ment. This can take the form of legislation submitted to Parliament or policy changes within
the existing legislative authority. In addition, the rules of the House of Commons provide
that a committee can request that the government submit a comprehensive response to the
committee s report within 120 calendar days of the tabling of the Committee’s report (see
page 136 of this report). With respect to the numerous criticisms the Committee heard about
DIAND actions, in some cases the Committee made direct representations to the Minister,
while other matters were referred to the Standing Committee on Indian Affairs.
Terminology
Throughout the report the Committee has used the term Indian First Nations to
describe the entities that would be exercising self-government. Although the terms of refer-
ence refer to “Indian self-government”, the majority of witnesses referred to themselves as
members of First Nations. In order to familiarize the general public with the term, the Com-
mittee decided to use Indian First Nations in this report. In the following chapter, the Com-
mittee examines the historical background of this term.
SETTING THE STAGE
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CHAPTER 2
SETTING THE STAGE
Indian First Nations
For thousands of years prior to European exploration and colonization, North America
was inhabited by many different indigenous peoples organized into political entities and
groupings based on common languages and cultural traditions. Along the eastern seaboard
alone, explorers encountered dozens of distinct peoples.
At that time, the term normally used in Europe to describe people speaking the same
language and having the same cultural traditions was ‘nation’; hence there could be many
national groups living in one state. When Europeans encountered the different North Ameri-
can peoples it was natural to apply the term in common use in Europe at the time; they
described these separate peoples as ‘nations’. Thus the Royal Proclamation of 1763 refers to
“the several Nations or Tribes of Indians with whom We are connected”.
In recent years indigenous peoples have given new expression to their distinctiveness and
their origins. Names have assumed a special significance. Eskimo and Indian ( a term that
arose because the earliest explorers mistakenly thought they had reached India) are per-
ceived as European terms. Inuit have asked that. they be called what they call themselves—
Inuit—meaning simply, the People. In less than two decades the term has come into general
use.
The peoples of Canada now known as ‘Indians’ face a different situation. Inuit speak
more or less one language, so they were able to take an indigenous word that has meaning
for all Inuit. The Indian peoples of Canada, however, speak dozens of distinctly different lan-
guages; their common languages are English and French. Indian peoples in Canada have
thus extracted from history an English term that had been used in the Royal Proclamation,
in treaties and in major legal decisions in the United States—the word ‘nation’. Together
they refer to themselves as ‘First Nations’, a term with historical and political significance.
The term nat.ion has particular sensitivity for many English-speaking Canadians
because it is linked to the Quebec question in Confederation, but as used by Indian people it
does not have separatist connotations. Rather, it means a group of people with a common
language, culture and history who identify with each other as belonging to a common politi-
cal entity.
Conflicting Views of History
The view of history held today by most non—lndian Canadians and the perspective held
by most Indian people are almost mirror images. Indian people consider the ‘discoverers’ and
‘explorers’, in whose memory monuments are erected and postage stamps issued, to have
been intruders in a land already well known to the nations that inhabited it. Indian people
know their nations to have been productive, cultured, spiritual, intelligent civilizations com-
parable to those in Europe at the time of first contact. But they are portrayed instead as sav-
ages and pagans, unknowing of religion and needing instruction in simple tasks. Because only
a one-sided, negative portrayal has been widely disseminated, non-Indian Canadians are
poorly prepared to understand the perspective held by Indian people and to comprehend the
today. This often leads to confrontation.
Indian people view treaties as reaffirmations of their sovereignty and rights and as
agreements to allow settlement in certain areas; non-Indians regard treaties as an extinguish-
ment of rights, an acceptance of the supremacy of the Crown, and a generous gift of land to
their own traditions and ancient doctrines such as Magna Carta, while at the same time
regarding the Royal Proclamation as antiquated and Indian tradition as inappropriate for
modern times.
Instead of accepting the Indian view of their own history and culture, non-Indians see
only the self-fulfilling stereotypes that victimize people of the First Nations as drunks and
welfare recipients, unable to practise acceptable standards of conduct and incapable of learn-
ing. That their situation has produced numerous examples of this image cannot be denied.
But Canadians and their governments must understand their own part in creating the basic
causes of this situation. Not only has the situation not been of the Indians’ own making, but
the federal government has removed from Indians the access to and control over their own
resources that would allow them to take the actions necessary to end an unacceptable situa-
tion.
Particularly relevant to this report on Indian self-government is the view held by non-
Indians that political structures were unknown to Indian people prior to contact with Euro-
peans. Contrary to this view, most First Nations have complex forms of government that go
far back into history and have evolved over time. They often operated in accord with
spiritual values, because religion was not separated from other aspects of First Nation life.
Indian nations did not generally have written constitutions, but, like England, conducted
their affairs on the basis of traditions modifed with pragmatic innovations. Witnesses gave
evidence to the Committee of how these Indian political concepts had directly affected non-
Indian institutions. Specifically, they described how the political philosophy of the Iroquois
Confederacy had been incorporated into the Constitution of the United States.
Among the many examples presented to the Committee by witnesses, two forms of First
Nation governmental organization are illustrative. The Iroquois (as they were known by the
French) or Six Nations (as the English called them) or the Haudenosaunee (People of the
Longhouse, as they called themselves) have a formalized constitution, which is recited every
five years by elders who have committed it to memory. It provides for a democratic system in
which each extended family selects a senior female leader and a senior male leader to speak
on its behalf in their respective councils. Debates on matters of common concern are held
according to strict rules that allow consensus to be reached in an efficient manner, thus
ensuring that the community remains unified. A code of laws, generally expressed in positive
admonitions rather than negative prohibitions, governs both official and civil behaviour.
Laws are passed by a bicameral legislature, made up of senior and junior houses. A council
of elders oversees the general course of affairs. Since officials are chosen from each extended
family, the system is called ‘hereditary’. While the commonly held belief is that hereditary
chiefs hold dictatorial powers, these leaders are actually subject to close control by their peo-
ple and can be removed from Office by them.
The Canadian government suppressed the Haudenosaunee government by jailing its
leaders and refusing to give it official recognition. In 1924, the council hall at the Six
Nations Reserve was raided by the Royal Canadian Mounted Police (RCMP). All official
records and symbols of government were seized and have never been returned. The system of
‘band councils’ mandated in the Indian Act was installed in its place.
The second example is that of the Potlatch, a system used by many First Nations on the
West Coast. From time to time, community or national leaders call assemblies which are
widely attended. Through ceremony, song, dance and speeches, new leaders are installed in
office. Wealth is redistributed through an economy based on giving rather than accumulat-
ing. Names are given and recorded. Political councils are held and decisions are made. His-
tory is recalled and instructed. Spiritual guidance is given. While the system of the Potlatch
is very different from that to which Europeans are accustomed, it contains all the necessary
elements to maintain continuity, good government and a sense of identity, and it permits
people to conduct their own affairs and to determine the course of their destiny.
As was the case with the Haudenosaunee, the Potlatch was outlawed by the Canadian
government. Attendance at Potlatch functions was prohibited by law as late as 1951, and jail
sentences were handed down to violators. All of the ceremonial items and symbols of govern-
ment were seized by the federal government. Despite the return of some items, a large num-
ber have not been returned and are dispersed in museums in Canada and abroad. People who
lived according to the Potlatch had to practise their religious beliefs clandestinely and were
forced to live under a system of government imposed on them. Despite this suppression, tra-
tlitional governmental systems like that of the Haudenosaunee and the Potlatch have not dis-
appeared.
The Committee values the understanding it gained during the course of its hearings. All
Canadians would benefit from similar information so that their understanding of their rela-
Iionship to the Indian First Nations could be extended. In this way, the popular view of Indi-
ans could be corrected. They would learn that Indians were not pagan and uncultured, but
peoples who moved from free, self-sustaining First Nations to a state of dependency and
social disorganization as the result of a hundred years of nearly total government control.
This Committee’s report, if implemented fully, will change this state of affairs. All sectors of
Canada, the federal government and provincial governments can work together with Indian
First Nations to put an end to this era of history and to create the new relationship the Com-
mittee calls for.
Social Conditions
The extent of the social disintegration and deprivation arising from the history of rela-
tions between Canada and Indian peoples is evident in the publication Indian Conditions: A
Survey. Published by the Department of Indian Affairs and Northern Development in 1980,
it provides the sobering facts about social conditions among Indian people today. Officials
from the Department of National Health and Welfare confirmed that conditions are not
improving:
The infant mortality rate for Indian people in 1980 was 24.3, which is still two and a half
times the national average;. . .our perception is that unless. . .the Indian Health Policy
works, where we have more people taking responsibility for their own health, we cannot
improve it simply by putting in more medical services. . . .
[The situation] is still bad. Accidents, violence, and poisonings are the number one cause
of death. They are three times higher than the national average. Rates of suicide, certainly
in the young age group, are six times the national average. It is difficult. It is a tough
problem, and it is almost out of our control. But we monitor it. There is a slow improve-
ment, but not as fast as it should be. (Sub 6:36)*
Some of these conditions are detailed in the accompanying table.
Obstacles and Limitations
These social conditions clearly demand immediate attention. Yet Indian people are
faced with an array of bureaucratic and legislative obstacles that limit, their ability to act.
Foremost among these is the complexity of governmental structures for dealing with issues of
concern to Indian people. Moreover, the Indian Act itself restricts Indian initiatives.
Governmental Complexity
Indian people must work through a complex governmental structure in order to meet
even basic needs. Complexity at the federal level is further compounded by the need to deal,
on some issues, with provincial authorities as well. The following list illustrates the range and
number of federal departments and agencies confronting Indian people. Further details can
be found in Appendix D.
* The Committee has used the following system for citing witnesses’ testimony. ‘Sub’ or ‘Special’ means the
Minutes of Proceedings and Evidence of the Sub-committee on Indian Self-Government or the Special Com-
mittee on Indian Self-Government. (See Chapter 1 for an explanation of the difference between the Special
Committee and the Sub-committee.) The figure before the colon indicates the issue number, while the figure
after the colon refers to the page number. Thus, Sub 6:36 means that the testimony can be found on page 36 of
Issue No. 6 of the Minutes of Proceedings and Evidence of the Sub-committee on Indian Self-Government.
Child Welfare: The proportion of Indian children in care has risen steadily to more than
five times the national rate.
Education: Only 20 per cent of Indian children stay in school to the end of the secondary
level; the comparable national rate is 75 per cent.
Housing: Nearly 19 per cent of on-reserve homes have two or more families living in them;
these conditions affect 40 per cent of all status Indian families.
Facilities: In 1977, fewer than 40 per cent of Indian houses had running water, sewage
disposal or indoor plumbing facilities; the national level of properly serviced houses is over
90 per cent.
Income: The average income of Indian people is one-half to two-thirds of the national
average.
Unemployment: The unemployment rate among Indian people is about 35 per cent of the
working age population; in some areas it is as high as 90 per cent.
Prisoners: Native people are over-represented in proportion to their population in federal
and provincial penitentiaries. In Manitoba, Saskatchewan and the North, Native people
represent more than 40 per cent of the prison population. The proportion of Indian juve-
niles who are considered delinquent is three times the national rate.
Death Rate: Despite improvements over the past 10 years, the death rate among Indian
people is two to four times the rate for non-Indians.
Causes of Death: Accidents, poisoning and violence account for over 33 per cent of deaths
among Indian people, as compared with 9 per cent for the Canadian population as a
whole. Indian people die from fire at a rate that is seven times that for the rest of the
Canadian population.
Violent Death: The overall rate of violent deaths among Indian people is more than three
times the national average.
Suicide: Indian deaths due to suicide are almost three times the national rate; suicide is
especially prevalent among Indians aged 15 to 24.
Infant Mortality: The infant mortality rate (up to the age of four weeks) among Indian
children is 60 per cent higher than the national rate.
Life Expectancy: If an Indian child survives its first year of life, it can expect to live I0
years less than a non-Indian Canadian. The life expectancy of Indian women, for example,
is 66.2 years, while non-Indian women can expect to live 76.3 years.
Hospital Admissions: Indians use hospitals about 2 to 2.5 times more than the national
population.
Departments providing programs and services:
Department of Indian Affairs and Northern Development
—the principal link between the federal government and Indian people on legal, treaty
and, until recently, constitutional matters, as well as the major provider of services
and programs
Department of National Health and Welfare
—operates an Indian health program, including 400 health facilities
Department of the Secretary of State
—funds political, social and cultural development activities of some Indian groups
Department of Justice
—provides legal advice to departments dealing with Indian matters and has a leading
role in constitutional discussions
Ministry of the Solicitor General
—administers the criminal justice system (RCMP, penitentiaries, parole system)
Ministry of State for Small Business and Tourism
Madministers a $345 million Native Economic Development Fund
Central and co-ordinating agencies:
Ministry of State for Social Development
—reviews departmental program and legislative proposals where they affect the wel-
fare and social development of Indian people
Ministry of State for Economic and Regional Development
—co-ordinates policies and programs related to industrial and regional development
Treasury Board
—approves departmental spending estimates
Federal-Provincial Relations Office and Office of Aboriginal Constitutional Affairs
—co-ordinates federal participation in the constitutional process and consultations
between the federal government and aboriginal peoples
The Indian Act
General concerns
The Indian Act presents a paradox for Indian people; it confirms the special status of
Indians, but it can also be viewed as a mechanism of social control and assimilation. In
Making Canadian Indian Policy, Sally Weaver refers to “the century-old ambiguity that
Indians have felt about the Indian Act—their resentment of its constraints and yet their
dependence on it for the special rights it provided.”*
* Sally Weaver, Making Canadian Indian Policy: A Hidden Agenda 1968-1970 (Toronto: University of
Toronto Press, 1981), p. 19.
The Indian Act is a comprehensive piece of legislation that circumscribes activities in all
sectors of Indian communities. It places constraints on the rights of Indian people and bands
and limits their ability to govern themselves effectively. The main purposes of the Act, as
described by the Department of Indian Affairs and Northern Development (DIAND), are:
to provide for band councils and the management and protection of Indian lands and
moneys, to define certain Indian rights, such as exemption from taxation in certain cir-
cumstances, and to define entitlement to band membership and to Indian status.
The first consolidated Indian Act was passed in 1876; the Act was last amended over thirty
years ago. It contains many anomalies and inadequacies.
Among the criticisms of the Indian Act is its failure to recognize the diversity of Indian
peoples. The Act treats Indians as a homogeneous group without taking into account varia-
tions in culture, language, resources, size and location of communities. The absence of flexi-
bility has also been perceived as a means of assimilation.
Serious objections were also registered with respect to the relationship between Indian
band councils and the Department. Band councils exercise delegated powers. In fact, they
are viewed for the most part as extensions of DIAND. Even the Department states that “band
governments are more like administrative arms of the Department of Indian Affairs than
they are governments accountable to band members”.** Band councils are the only Indian
governmental organization recognized in the Indian Act. But tribal councils, treaty organiza-
tions, and provincial, regional and national associations of various kinds play a vital role in
the political activities of Indian people. Further details about some of these institutions can
be found in Appendix C.
**Canada, DIAND, Strengthening Indian Band Government (Ottawa, 1982).
Departmental control of Indian activities has been a consistent element of Indian life. In
the past, an Indian agent representing the Department at the local level had control over vir- .
tually all aspects of life, even to the point of issuing passes to allow Indians to leave the
reserve temporarily. While the Indian agent has disappeared, the Department still exercises
considerable control, particularly over band governments. Witness after witness said that the
Department makes planning and budgetary decisions without adequate input from bands.
Chiefs and councillors felt constrained by a system that does not enable them to respond
to the needs of their communities. They are in a particularly awkward position because they
are accountable to DIAND for moneys received, but they are also accountable to their people,
whose priorities and needs are often at variance with departmental requirements. While vari-
ous policy directives have emphasized consultation with the bands, real control still rests with
DIAND. A recent study concluded:
Over the long run the most contentious aspect of the Indian Act was the sweeping power
that it gave to administrators and to the federal government. The Indian Act extended the
regulatory reach of the government into virtually every nook and cranny of Indian life.
Indians, unlike other Canadians, were not faced with a plurality of governments and gov-
ernment departments but rather with a single government and a single department.
Although the Act presented a veneer of self-government and Indian participation in the
control of their lives, even the veneer was an illusion.*
* J. Rick Ponting and Roger Gibbins, Out of Irrelevancez A Socio-Political Introduction to Indian Affairs in
Canada (Toronto: Butterworths, 1980), p. 12.
Restrictions on band and band council powers
Bands and band councils are creatures of the Indian Act. That is to say, all their legally
recognized powers are defined in and, more importantly, limited to those specifically men-
tioned in the Indian Act. Many important matters necessary to the functions of government
in modern society are omitted from the Act. These omissions have resulted in great uncer-
tainty about the legal capacity of bands and of band councils and have raised questions as to
whether a band council can sign contracts, bring law suits, and generally act in the name of
the band. A band’s legal status depends on other statutes:
The cases have concluded that a band is not a corporation, even though bands do exhibit
some of the characteristics of a corporation. A band has been held to be a person, and an
employer, in some instances, but these instances are restricted to the particular statute
involved and the definition of the person or employer. For example, in the Moses Tom
case from Manitoba, a band was not a person capable of making application for custody of
one of its members because it was not a person within the meaning of the Act. On the
other hand, under the Coroner’s Act of B.C. the Masset Band Council was held to be a
person that was capable of demanding an inquest into the death of one of its members. So
whether a band is a person or an employer is entirely up to the statutory interpretation of
the applicable statute, and whether a band is a person or employer by its own merits has
not been judicially interpreted. (Canadian Indian Lawyers’ Association, Sub 13:10)
Because there are no general rules in the Indian Act or elsewhere in Canadian law, each case
is decided narrowly by interpreting the statute that applies in the circumstances. Each new
situation raises new questions. This uncertainty has been a great impediment to band initia-
tives.
The Canadian courts have held that bands cannot acquire title to land. Nor can they sue
or be sued. As the Association of Iroquois and Allied Indians noted, this means that the fed-
eral government “is often involved in band transactions where it has no active role but is
made a party out of uncertainty as to the band’s capacity to do business. . . .Creditors often
look to the federal government for payment of band accounts since bands are considered to
be non-suable.” (Special 16A:1 1)
A Halifax law firm, Aronson, MacDonald, described the practical problems that result
from this uncertainty:
The uncertainty permeates all dealings between bands and employees, suppliers, contrac-
tors, financial institutions and governments. It is constantly assumed that there is no point
in taking a band to court as it is not a suable entity. Section 89(1) of the Indian Act is fre-
quently called in aid to support this assumption, although the provision is concerned only
with granting an immunity to effectively collect a debt from a band, an immunity com-
monly granted to governments. However, the assumption clearly affects many commercial
transactions and the legal manner of entering into contracts, for example. (Written Sub-
mission, November 29, 1982)
One remedy is for band members to incorporate as a company to carry on business ven-
tures, own land or undertake other activities for the benefit of the band. This solution
presents additional difficulties; because a corporation is not “an Indian” for purposes of the
Act, it cannot benefit from tax exemptions available to Indian people. Incorporation has
many other implications. For example, land held by the corporation may not be considered
“Lands reserved for the Indians” (under the Constitution Act, I867, formerly the British
North America Act). Thus provincial, not federal, laws will apply.
Section 81 of the Indian Act sets out the by-law making powers of band councils. These
powers are totally inadequate for the varied situations of Indian peoples in the twentieth cen-
tury. The Musqueam Band, for example, is located in Vancouver and owns prime residential
land. If that land were to be developed, the band would need the power to enact zoning and
building by-laws, among other matters, powers that bands do not have now.
Even the limited powers of band councils are further diminished because they can be
rendered invalid by federal laws, federal regulations or the Minister’s disallowance. Provin-
cial laws ‘of general application’ also interfere with band council powers. Councils are virtu-
ally powerless as governments. Many witnesses described the councils role as administrator
of government policy:
Under the current system of band government, the chief and council are so restricted in
providing the three basic functions of government that it can hardly be called government
at all, but more properly the administration of federal policy at a local level. Under the
current Act the council can regulate little, except weeds and dogs on the reserves, without
the blessing first of the Minister and his administrative arm.
The council’s role in representation of the people’s wishes is, for the most part, ignored by
both senior levels of government. All too often band governments must resort to confronta-
tion, to media events, to expensive lobbying just to get heard.
. . .Again, in a government’s function of allocation the bands of our experience are for the
most part restricted by the Act and the Department’s policy to the delivery or distribution
of resources as allocated by the Department.
Stripped of the authority to operate the fundamental functions of government, current
band governments are little more than factotums of federal control. (Quesnel Community
Law Centre, Special 20:168-169)
Recent attempts to revise the Indian Act
The last major revision of the Indian Act occurred in 1951 following a detailed review in
1946-48 by a Special Joint Committee of the Senate and the House of Commons. A depart-
mental history notes that the main features of the 1876 legislation were not altered:
The new Indian Act did not differ in many respects from previous legislation. The main
elements of the earliest Dominion legislation, i.e., protection of Indian lands from aliena-
tion and Indian property from depredation, provision for a form of local government,
methods of ending Indian status, were preserved intact.*
* Canada, DIAND, The Historical Development ofthe Indian Act (Ottawa, 1978), p. 149.
The history also described the reduction in the Minister’s responsibilities to a “supervisory
role, but with veto power”. Nevertheless, the remaining powers of the Minister are consider-
able.
Despite argument to the contrary, the powers of the Minister and Governor in Council
remained formidable. Administration of over half of the Act was at the discretion of the
Minister or Governor in Council, the latter being empowered to declare any or all parts of
the Act inapplicable to any band or individual Indian, subject only to another statute or
treaty.*
* Ibid.
Between July 1968 and May 1969 the federal government embarked on a series of con-
sultations throughout Canada to identify changes that should be made to the Indian Act.
The meetings had scarcely been completed when the government tabled its White Paper on
Indian Policy, which called for far-reaching changes in the legislative framework governing
Indian-Canada relations, including the repeal of the Indian Act. Adverse Indian and public
reaction to the proposal to terminate the special status of Indians was so strong that the gov-
ernment withdrew the paper in 1971.
A resolution calling for the partial revision of the Indian Act was proposed by the
National Indian Brotherhood (NIB) at its annual General Assembly in 1975. Some prelim-
inary work on issues such as surrendered lands, taxation, Indian government, education and
anachronisms within the Act was conducted by a joint NIB/Cabinet committee between 1975
and 1978, but those talks broke off without agreement. Since then, the National Indian
Brotherhood and its successor, the Assembly of First Nations, have opposed piecemeal
change or change initiated by the Department alone.
The policy of devolution
As a result of the breakdown of these processes. the Indian Act has remained in force
unchanged. The Department, however, has implemented a policy of devolution in order to
permit bands and Indian organizations to exercise more powers.
This policy was launched in the mid-1960s when the Department began to transfer
responsibility for managing and delivering programs to individual bands. Services such as
social assistance, child care, educating children in Department-run schools, and providing
and operating community infrastructure were among the first to be transferred. In 1979,
Treasury Board approved the first set of “Terms and Conditions for Contributions to Indian
Bands and Organizations”. Departmental figures reveal a steady increase in the funds
administered by bands:
1971 $ 34.9 million 16% of total budget
1976 147.6 million 31% of total budget
1982/83 526.6 million 50% of total budget
In addition to contributions to cover the delivery of services, bands also receive core funding
to cover general administrative expenses.
This policy of devolution has transferred only the delivery of services to the band level;
control over programs, policies and budgets remains with the Department. While the
Department has continued to refer to this process as “strengthening band government on
Indian reserves”, Indian witnesses consistently criticized the policy for failing to transfer real
control to Indian people:
We found that the Department has too much control. The bands are told what to do and
what not to do. Program direction stems from the Department instead of the band. The
system is outdated and it is costly. The organization does not relate to the aspirations of
Indian leaders and band membership. The organization is program- rather than people-
oriented. The system promotes dependency on the Department instead of self-reliance.
Department structure does not lend itself to the amount of work done. Bands are unable to
pay staff reasonable wages; for example, many have not received a raise in years. Also,
bands want to be trained in the management of their own lands. (Federation of Saskatche-
wan Indian Nations, Special 11:36)
The legal framework has remained, and it has limited the Department’s implementation of
devolution. The Indian Act was not intended to provide opportunities for Indian administra-
tion of programs. The Minister commented on the difficulties of continuing the policy of
devolution with the current Act in force:
. . .In consultation with the Indian leadership, we in the Department, and I think of myself
as minister and my predecessors, have been attempting to stretch the Indian Act as far as
we can to accommodate demands for change. . . We have done this largely through devolu-
tion, but our ability to respond adequately to Indian needs is severely limited, and there
are several reasons for this. The formal requirements of control which we must follow in
accordance with the estimates, are incompatible with the current practice of devolution.
(Sub 2:16-17)
Departmental views on the Indian Act
In his first appearance before the Sub-committee, the Minister tabled two documents.
Strengthening Indian Band Government in Canada and The Alternative of Optional Indian
Band Government Legislation, which he subsequently circulated to all bands. Strengthening
Indian Band Government in Canada outlined the Department’s views of the major practical I
difficulties caused by restrictions in the Indian Act:
First, the exercise of all these powers is subject to various kinds of control by the Minister
and/or the Governor in Council. In most instances, the federal government’s power of dis-
cretionary control of by-laws and other powers is not exercised in practice if a band is act-
ing within the law. The fact that it exists, however, complicates the accountability of band
government and often leads to interminable technical complications to accomplish the
simplest act.
Second, land tenure system under the Indian Act is based on the historical view that
reserve lands were meant for the exclusive use of Indians and were to be protected for
Indians until they could control their lands like anyone else. This protection was for both
bands and individual members of the band. The Indian Act, therefore, limits the ability of
both the band and the individual to deal with the land.
Third, the Minister also has trust responsibilities in relation to band moneys which prevent
him from permitting band governments to control their own assets and to use them as they
would wish for their own development.
Fourth, band governments have few legislative powers in social and economic development
areas. The Department of Indian Affairs has devolved the administration of many such
programs to numerous bands, but has retained the power of program definition.
Fifth, the legal status of band governments has been put in question by the courts. It is
currently unclear whether band governments have legal power to contract with other legal
entitites.
The band government. proposal
The Minister argued that legislative change is needed immediately. He explained that a
minority of bands are constrained in pursuing economic development by the restrictions in
the current Act:
There have been bands. . .that are on the outskirts of municipalities and that want to get
ahead with developmental projects, want to have control of their own land, want to get
under way with certain economic development, and they are being hampered because of
the fact—and criticizing me. I acknowledge they are a minority of bands, but they are
very critical of the fact that we have not proceeded. (Sub 2:35)
The Department has explored several alternatives for providing “a new base from which
Indian bands could exercise the equivalent level of political responsibility enjoyed by all
other Canadians within their own local communities”. The alternatives include a complete
revision of the Indian Act; partial revision of and additions to the Indian Act; the develop-
ment of a series of subject acts affecting Indians (an Indian Education Act, an Indian Finan-
cial Administration Act, and so on); development of a series of regional or individual band
Indian Acts; and the development of companion legislation to the Indian Act to allow for
optional Indian band government at the community level.
The Minister expanded upon the latter option in The Alternative of Optional Ina’ian
Band Government Legislation. Such legislation would be based on the concept “that the pri-
mary locus of decision-making is within the Indian band itself” and might include somc of
the following elements or characteristics:
Optional legislation: It should be optional since no single approach is universally appropri-
ate. “Bands which wish to continue to operate under that present system should be allowed
to do so.” –
Band charter: Each interested band would develop its own band charter; this would be
“one of the requirements for entry into Indian band government legislation. This charter,
or constitution, would outline, in its own terms, the nature of the relationship which would
exist between the Indian band government and the band membership.”
Expanded powers: “The power to pass authoritative by-laws; the power to adopt other per-
tinent laws by reference if they so choose; the ability to enter into agreements with other
bands and other government authorities and agencies to provide services on reserves: the
ability of developing that service delivery capability themselves; the power to enter into
agreements with banks and other financial institutions in their own right; the power to
raise additional financial resources within their own jurisdictions by levying taxes on both
Indianand non-Indian interests.”
Control over lands: The legislation would give the band “authority and responsibility to
grant interests in land to both Indians and others” while ensuring that lands remain “lands
reserved for the Indians, in order to keep such lands within the legislative competence of
the federal government.”
Membership: Bands would “be able to determine their own membership, subject to respect
for acquired rights, and some minimal connection, either by descent or by marriage, of the
individual with the band.”
Enacting by-laws: There would be “a clear statement of the capacity of Indian band gov-
ernments to enact by-laws in order to allow for the implementation of their program pow-
ers.”
Funding: “The legislation would require as a prior condition that the necessary financial
resources are available to make it work. . . . Indian band governments would presumably
have to meet their own assumed responsibility for the proper use and expenditure of these
funds, and become accountable to their own band members, within the terms of both the
legislation and the band charter and by-laws, for maintaining agreed-to levels of program
service delivery.”
Role of DIAND: “Since band governments established under federal legislation would be
junior governments, much like municipal governments are junior to the provinces which
create them, the federal government would continue to play some kind of supervisory role,
by which is meant that it could have the authority to review and reject band by-laws if
necessary.”
The document also outlined other questions that DIAND felt would need to be resolved:
additional powers in the areas of membership;
management and control of reserve land and trust moneys, health, housing, social
assistance, and control of non-renewable resources on reserves;
law enforcement and the administration ofjustice;
appeals to the Minister from band members concerning irregularities and suspected l
wrong-doing; and
the effect of band government by-laws on neighbouring municipalities and/or provin-
cial lands.
The subject of the trust relationship of the Minister was also addressed in this docu-
ment. It suggested that this relationship between the Indians and the Minister “would be sig-
nificantly changed”, but the Minister hastened to point out in testimony that “there is no
desire on my part to abrogate treaty and aboriginal rights” in making this proposal. (Sub
12:15) According to the document, one interpretation of the new trust relationship might be
as follows:
One of the major changes which could be brought about by Indian band government legis-
lation might be that the Minister would no longer be regarded as having a residual fiduci-
ary trust responsibility for decisions made by an Indian band government from the point
at, and in the jurisdictional area within which, it assumes local control (responsibility)
over its own affairs. The decisions it makes would be its own; the long-term responsibility
would be its own. However, this would not reduce any existing responsibility which the
Minister may have up until that local control is assumed. The Minister’s general responsi-
bility for monies voted by Parliament would continue, as would the Minister’s responsibili-
ties in areas where the Minister’s authority is retained.
When the Committee began its study of self-government, it did not set out to seek
approval of any of the Department’s proposals. (Sub 14:22) Indian witnesses were greatly
concerned that the Committee was a front for the proposed legislation. They feared that the
Committee hearings would be regarded as “consultation” on a band government bill:
We are afraid, after these hearings have concluded, the Minister of Indian Affairs will
introduce legislation designed to free the federal government of its obligations to Indian
people. Once your sub-committee has completed its hearings and submitted its report, the
Minister may claim the new legislation was developed with full consultation with Indian
people. (Yellowhead Tribal Council, Sub 10:37-38)
Witnesses unanimously rejected any band government bill. Their principal criticism was
that the proposal involves a delegation of power rather than a recognition of the sovereignty
of Indian First Nation governments. Indian governments are not to be regarded as junior
governments, they said, and any changes should involve more than a transfer of administra-
tive responsibility. To do otherwise would be to continue the old policies.
We are disappointed in the extreme by the narrow and limited version of self-government
which the Minister has put forward. It seems deliberately to be slanted to focus discussion
on the minor and administrative aspects of self-government, when it could range to far
more broad and mature concepts. (Blood Band, Sub 8:134)
Witnesses were also concerned that the proposed legislation would alter the trust rela-
tionship between the federal government and Indian people. Witnesses insisted that the spe-
cial relationship not be changed.
We oppose the suggestion that new legislation would alter in any significant way the spe-
cial trust relationship that exists between the Crown and the Indian people of Canada.
Any legislation of Indian self-government should not be employed by Parliament as an
indirect measure of diminishing trust responsibilities of the federal government. (Swampy
Cree Tribal Council, Special 35:13)
A fear that legislation would convert Indian governments into municipal governments
was also raised:
Implicit in the concept is a transition from an Indian reserve with communal land holdings
to a provincial municipality in which land titles, property taxation and provincial legisla-
tive control are paramount. In such a context the status and function of an Indian chief
and council could be relegated to a virtual non-entity. There would be an inevitable loss of
Indian jurisdiction. (Indian Association of Alberta, Letter to the Minister, February 1,
1983)
Witnesses also criticized the reference to whether bands were “ready” to govern, a
suggestion that reinforces the colonial attitude that Indians must be taught to manage their
own affairs.
In the Minister’s paper to the committee, entitled The Alternative of Optional Indian
Band Government Legislation, he makes a number of references to bands being able to
demonstrate a level of ability, or the ability of developing that service delivery capability
themselves. These are not the standards set by the Indian people for their councils, but the
Department’s criteria. This approach clearly reveals a deep-seated colonial mentality
based on the notion that the uncivilized have to be raised by the administrative measures
and taught to manage their own affairs. (Indian Association of Alberta, Sub 8:13)
Some bands even suggested that current difficulties in obtaining funds are a tactic to
make the new proposals seem attractive.
We realize that the Minister has repeatedly stated that this legislation is optional. It is
only optional for the bands who are not getting any funds from the Department of Indian
Affairs. In reviewing the proposed legislative framework, only bands who have opted into
the legislation will be available for increased funds for their administration. Divide and
conquer again. It seems clear to us that the legislation is a form of blackmail to the bands
dependent on the Department for their transfer grants. (Indian Association of Alberta,
Sub 8:14)
THREE AREAS OF
CRITICAL CONCERN
*See PDF for image
CHAPTER 3
THREE AREAS OF CRITICAL CONCERN
The discussion of the Indian Act and departmental policies illustrated some of the insti-
tutional obstacles to Indian control of their own affairs. Witnesses’ responses to the band
government proposal show that they reject the Department’s proposed solutions to these
problems. In conveying to the Committee their frustration with the current state of affairs,
Indian witnesses gave convincing testimony about the importance of Indian control in areas
central to the cultures of the First Nations. They asserted that in some cases only Indian
control of legislation and policy would ensure the survival and development of Indian com-
munities. Three areas of critical concern were education, child welfare and health.
Witnesses documented the damage to Indian cultures that has occurred in the past.
Their description of the severe limitations of today’s bureaucratic solutions made the need
for fundamental change clear. By describing new projects—already underway despite all the
restrictions—witnesses showed that Indian communities and organizations will take the
initiative, and that immediate change is possible. After hearing the persuasive arguments
documented in this chapter, the Committee developed its own recommendations, which it
believes will deal with these areas of critical concern, among others.
Education
External control of the education of Indian children has been destructive of Indian cul-
ture. The early years of missionary and DIAND-operated residential schools were particularly
condemned by witnesses.
It was believed that by removing Indian youth from their homes and placing them in cap-
tive environments, the heart and soul of Indian culture would be removed, or a process of
de-Indianizing the Indians. Specifically, residential school Indians were not permitted to
speak their language, practise their religious beliefs and rituals, or have the opportunity to
learn what it means to be a self-actualized Indian. Rather, these institutions were highly
regimented with programs and a school curriculum alien to its students. (Saskatchewan
Federation of Indian Nations, Special 11:82)
While the disproportionate ratio of Indian children in care remains about the same today,
it is important to note that the steady increases in provincial government child apprehen-
sions occurred almost simultaneously with residential school closures. The effects of resi-
dential schools on this generation of parents must be taken into serious consideration since
the Indian parents of today were the generation of residential school children yesterday.
They’re considered by their people as the lost generation. (Indian Homemakers of British
Columbia, “Family Unit Concept”, Exhibit R, Special 17)
The 1971 Sub-Committee on Indian Education of the Standing Committee on Indian
Affairs and Northern Development found that federal, provincial and church schools alike
had failed to educate Indian students. The report laid the foundation for federal acceptance
of the National Indian Brotherhood paper, “Indian Control of Indian Education”, which
advocated Indian communities taking responsibility for their children’s education through
their own school boards. The policy was endorsed by the Minister of the day, the Honourable
Jean Chrétien.
Since then, the Department has adopted a policy of Indian control of education, but
Indian bands have discovered that their influence is still limited. The new arrangements have
replaced the drastic unilateral measures of the past with bureaucratic systems that call on
the resources of Indian communities but result in no real Indian control.
One limiting factor is the existence of master tuition agreements with the provinces that
cannot be changed for many years.
It has been a little over 10 years since this policy was presented and accepted as the direc-
tion Indian education would proceed in. The principle of Indian control of Indian educa-
tion is really given only lip service in the Province of British Columbia. The major portion
of the education budget in the British Columbia region of the Department of Indian
Affairs goes to the provincial government to honour an archaic contract known as the mas-
ter tuition agreement. This agreement was signed in 1969 between the federal government
and the British Columbia government without Indian involvement or consent. The Minis-
ter of Education for the province of British Columbia stated in 1979 that, regardless of
any agreement, the provincial government will provide education services to status Indi-
ans, because this is their right as provincial citizens. (Saanich Indian School Board, Spe-
cial 5:21)
Witnesses pointed out that they have very little control in those cases where funding is
provided direct to provincial school boards. They also suggested that the system of funding
whereby moneys were paid in a lump sum did not provide for sufficient accountability.
School District 88 is paid in full for all native students by October in every school year.
They receive $3,205 for each registered native student, which includes transportation for
bussing. At present we have 17 students attending from our village and many more off
reserve. Our share to the school district presently is $54,485 for the year. The problem is
that this is paid out in a lump sum. . .to School District 88 and by October a lot of the stu-
dents are kicked out of the school and the school district has already received the total
amount of funding. We disagree with that system. (Kitsumkalum Band, Special 7:64-65)
The Committee received further testimony on this subject. The Manitoba Indian Edu-
cation Authority, for example, spoke about the difference between the per capita cost for an
Indian student at a public elementary school and the per capita cost for an Indian student at
an Indian-run school. DIAND often pays a higher per capita rate to provincial schools than to
Indian-operated schools. (Special 3:17)
Indians frequently participate in negotiations, only to be overruled by unilateral federal
or provincial decisions, despite assurances that action is only to be taken “with Indian
approval”. The Union of New Brunswick Indians told the Committee that earlier this year
the federal government and the province had gone ahead and signed an education agreement
that was not acceptable to the Chiefs. (Special 23:1 1-12)
Finally, Indian witnesses referred to the absence of adequate representation on boards
and advisory committees. In Ontario, for example, Indian representation on school boards is
limited to two, regardless of the number of Indian students. (Special 14:17)*
* The Ontario Education Act provides for the appointment of one representative of Indian pupils to a school
board that has an agreement with a band council. A second representative may be appointed in cases where
Indian pupils represent a certain percentage of average daily enrolment. (R.S.O. 1980, Chapter 129, Subsec-
tions 165(4)-(6) as amended.)
In a paper tabled by the Saskatchewan Federation of Indian Nations, the Peepeekisis
Indian Band documented sub-standard academic achievement and poor attendance at the
local provincial school. The band attributed these difficulties to a number of factors, includ-
ing the absence of Indian representation in the preparation of tuition agreements, the
development of curricula and the delivery of services.
Many witnesses recognized and emphasized the need for education as a means of both
recovering the cultural values and skills of aboriginal societies and acquiring the skills
needed to survive and prosper in non-Indian society. Education programs operated by federal
and provincial governments were seen as promoting a policy of assimilation.
The principle is simple. Only Indian people can design systems for Indians. Anything other
than that is assimilation. (Carrier-Sekani Tribal Council, Special 20A:11)
Indian control over education was seen as an essential component in strengthening
Indian culture and preserving Indian heritage. During a visit to the Long Plain School in
Manitoba, the Committee heard first-hand from the students about the development of a
language program, visits by the elders to tell stories, and the native studies program:
We would like you to know that we prefer our school here on the reserve mainly because
we are among friends and relatives. We are in our own environment, among our own peo-
ple. . . (Long Plain School, Special 2A:1)
Work has begun on native studies programs, but implementation varies throughout the
country. Current laws and policies often prevent Indian organizations from carrying out
their proposals for change:
Right now, the big problem we are having with the school boards and Department of Edu-
cation is that we would like to introduce a lot of curriculum material that is related to our
culture and our background within the school system. We are being blocked from doing
that by the school boards, by the denominational school board. (Conne River Indian Band
Council, Sub 13:70)
We say that Indian education is to educate Indian people to be Indian people . . . So we
say we need a new order of education which we define as “education to be Indian people.”
(Saskatchewan Indian Education Commission, Special 1 1:68-69)
Throughout the Committee hearings, witnesses provided examples of arrangements or
structures that might be used to achieve their goals if new structures were in place.
It is important, if native culture and native history are to be taught, for example, through
education in the local schools, that that be part of the negotiation process. I think the best
way to negotiate is to have the money in your hand and sit down, for example, with the
local school board and agree upon the basic requirements for education, and then add a
few of these cultural courses and so on that are needed for better understanding. (Central
Interior Tribal Councils, Special 18:23-24)
This might mean that a tribal council would be empowered to act on behalfof a number
of bands, or a special education authority would be created to look after the education needs
of an Indian community. In some cases, Indian First Nations might wish to make agree-
ments with the provinces, but would negotiate their own arrangements regarding funding
and the inclusion of cultural and language studies. Central to this process is the principle
that it is the Indian First Nation that should have jurisdiction over and responsibility for
education.
As a result of the James Bay and Northern Quebec Agreement, the Grand Council of
the Crees of Quebec is in a unique situation. The Cree School Board, which operates under
the terms of the Agreement, is a good example of the innovations possible under new struc-
tures:
The Cree School Board was created in order to implement the concept of Cree control of
Cree education. It is a prime example of Indian self-control and determination and stands
as a precedent in the field of Indian assumption of responsibilities previously directed by
others. (James Bay Cree, Special 29A:36)
In this case, the Cree School Board has special powers “unequalled in other school
boards across the land, and certainly beyond comparison with powers related to the adminis-
tration of other Indian boards in Canada.” (Special 29A:40) It exercises some of these pow-
ers in conjunction with the Quebec Department of Education. It has powers to decide on the
language of instruction, choose the curriculum, select appropriate textbooks, hire teachers
and control administration.
Even under the restrictions of the Ina’ian Act, bands, and organizations exercising
authority delegated by bands, have implemented some changes. One such organization is the
Manitoba Indian Education Authority. Another, the Saskatchewan Indian Education Com-
mission, also operates under delegated authority. Its organizational structure includes 69
education boards at the band level, seven district education councils and a 13-person execu-
tive board. (Special 1 1:73)
The Federation of Saskatchewan Indian Nations also provided several examples of insti-
tutions it had developed, including the use of Indian student residences as schools that
“advocated and encouraged Indians to be Indians”. (Special 11:82) These schools provide
specialized studies in native culture, heritage and language. The Saskatchewan Indian Col-
lege, also under the jurisdiction of the Federation, has as its purpose the revival and per-
petuation of “Indian culture, traditions, history, language, religion and all aspects of the
Indian way of life”. Finally, the Federation has worked with the University of Regina to cre-
ate the Saskatchewan Indian Federated College, a college that is administratively independ-
ent but academically integrated with the University.
Looking to the future, the Carrier-Sekani Tribal Council presented a proposal for an
Indian university that would use the talents of all the people in various villages in teaching:
An Indian University having the human and financial resources will develop the plans, the
direction and the blueprints that will transform the present situation of the Indian people
to a people who have their own government. (Special 20A:1 1)
In summary, education is a central area in which Indian people wish to exercise jurisdic-
tion. Witnesses emphasized the destructive nature of external control. Some Indian bands
and organizations exercise a degree of control even now, but have achieved this only by
stretching a restrictive framework to its limits. In order to pursue their goals, Indian people
want real power to make their own decisions and carry out their own plans for Indian educa-
tion.
Child Welfare
The imposition of non-Indian views of child care, through the enforcement of provincial
child welfare policies on reserves, has had tragic effects on Indian family life.
A large number of Indian children are under the care of provincial child welfare
authorities. A recent study, Native Children and the Child Welfare System, reveals that in
1955 approximately one per cent of the children in the care of child welfare authorities in
British Columbia were of Indian ancestry. By 1964 this figure had risen to 34.2 per cent.
Patrick Johnston, author of the study, referred to a practice known as the ‘sixties scoop’; pro-
vincial social workers would scoop children from reserves on the slightest pretext in order to
‘save’ them from what social workers considered to be poor living conditions.*
* Patrick Johnston, Native Children and the Child Welfare System (Ottawa: Canadian Council on Social
Development, 1983), p. 23.
Throughout the hearings, Indian witnesses condemned the policies of provincial welfare
authorities for removing Indian children from reserves in cases where, in the opinion of the
authorities, they were not being properly cared for by their parents. Witnesses criticized pro-
vincial authorities for judging situations by non-Indian standards, which are culturally dif-
ferent.
The problems that have been encountered in the past by provincial social services have not
only been conflicts of policy but also cultural conflicts. . . .Nothing illustrates this point
better than the removal of Indian children by white social service agencies from Indian
communities. Social service agencies now have the power to seize Indian children and put
them up for adoption outside the Indian cultural environment. Such a practice is totally
unacceptable. (Restigouche Band, Special 22:13)
All the laws and regulations administered by the social welfare agencies and workers are
based on a non-Indian concept of the family and intra-family relationships. When applied
to Indian communities, they create problems rather than offer solutions, and often hinder
rather than help as they are intended to do. (Shoal Lake Band No. 39, Special 1:81)
Indian people see these practices as interference by the provinces in Indian affairs, con-
trary to the special relationship between Indian people and the federal government.
We have had problems in the past dealing with child welfare and the fact that provincial
[authorities] have always had the jurisdiction to come to Indian lands and apprehend any
child, if they thought that child was being abused in any way within the band. . . . Taking
charge of our own Indian government would mean that we should also be able to control
our child welfare, and also eliminate the problem of having the MHR [provincial Ministry
of Human Resources] come into our reserve to apprehend any children. (Treaty 8 Tribal
Association, Special 21:35)
Others saw these policies and practices as means of assimilation.
We want to see an end to federal policies which take away our children from their parents
and from our communities. In British Columbia where I come from, 35 per cent of all chil-
dren apprehended are from Indian or native families, and we comprise only 1 per cent of
the population. (Native Women’s Association of Canada, Sub 4:6)
Each time an Indian child is spirited away from our reserves, family unity is being
destroyed and we are being deprived of our future great leaders. . . Indian children. . .have
an inalienable right to keep their parents. They have an inherent right to retain their lan-
guage and culture. We do not condone the system that pirates away our children and even
exports them to foreign lands. . . .We are saying this planned process of cultural genocide
must cease. (Alberta Council of Treaty Women, Sub 10:19)
Jurisdiction over Indian child welfare has been the subject of much debate. As the
Indian Act does not refer specifically to the delivery of child welfare services, and as the
provinces normally have jurisdiction over child welfare matters, section 88 of the Indian Act,
which refers to provincial laws of general application, comes into play. The federal govern-
ment has also encouraged the provinces to deliver child welfare services.
Witnesses before the Committee discussed a number of interim arrangements that have
been worked out under the existing legal framework. For example, in 1980 the Spallumcheen
Band passed a by-law giving itself exclusive jurisdiction over any child custody proceeding
involving an Indian child. In some cases, Indian bands or organizations have been able to
reach agreements with the federal and provincial governments to share administration of
child welfare services.
One of the first tripartite agreements relating to child welfare was signed by Canada,
Alberta and the Blackfoot Band. Under its terms, the band administers the child welfare
programs of the Alberta Department of Social Services and Community Health. Social ser-
vices are delivered to band members by employees of the band’s social services unit. A valu-
able component of the tripartite agreement is its provision of training programs.
In February 1982 the Canada-Manitoba Indian Child Welfare Agreement was signed
establishing “the broad framework by which Indian communities in southern and central
Manitoba will acquire authority and responsibility for child welfare”.* This is a master
agreement setting out a general structure. Subsidiary agreements will be signed that detail
specific administrative and financial arrangements.
* Johnston, op. cit., p. 110.
Indian witnesses who spoke on the subject were virtually unanimous in their opinion
that child welfare is an area over which Indian First Nations should exercise jurisdiction.
The exact mechanisms for the delivery of services would vary throughout the country. As in
the case of education, witnesses expressed interest in establishing their own services, con-
tracting with tribal councils or negotiating agreements with provinces. In all cases, the key
element was control by Indian people to ensure that their values and customs are respected.
…The Dene have some strong traditions in the area of family and child-raising, over
which we want our people up here to have jurisdiction and be able to legislate from time to
time. I do not think we would want to try to come up with legislation today that would be
static for the “next 30 years. Rather, we want to be self-determining, so we want jurisdic-
tion here. (Dene Nation, Special 28:75) 1
Young people are the hope and life-blood of our nations, and their removal strikes at the
very heart of our culture and heritage. (Restigouche Band, Special 22: 1 3)
Health Care
The shocking degree of ill-health among Indian people has been widely documented.
Indeed, the federal Indian Health Policy of 1979 referred to the “tragedy of Indian ill-
health” and presented ways to remedy this intolerable situation. Although the federal medi-
cal care program for Indians and Inuit has been extensive, involving significant sums of
money for health services, Indian health has not improved to any great extent. The Report of
the Advisory Commission on Indian and Inuit Health Consultation noted that the present
situation is not the result of departmental neglect but rather is due to larger problems:
Yet notwithstanding the dedication of MSB [Medical Services Branch] and its staff, and
the expenditure of these sums, the grievous state of Indian health today is plain for all to
see. The reason is that so many of the causes of Indian ill-health lie beyond the fact of ill-
ness itself, and the remedies lie beyond the mandate of MSB.*
* The Honourable Mr. Justice Thomas Berger, Report of Advisory Commission on Indian and Inuit Health
Consultation (Ottawa, 1980), p. 3.
The report went on to document conditions such as poverty, poor housing, lack of clean
water, inadequate sewage and garbage disposal, and poor diet. Efforts to improve health
must include improvements in these underlying conditions.
Responsibility for Indian health services is currently exercised by the Department of
National Health and Welfare (NHW). At one time all health services were delivered through
federal medical facilities established in all the provinces and territories, but gradually the
federal government made arrangements with the provinces to deliver hospital services for
Indians through the provincial hospitalization system. NHW continues to operate approxi-
mately 400 nursing stations and other health facilities.
In 1979 the federal government issued an Indian Health Policy designed to promote and
encourage Indian involvement in the provision of health services. To demonstrate its commit-
ment to this policy, the Department of National Health and Welfare began a process of
devolution whereby many health services would be administered at the band level. At present
over $20 million is provided to bands through contribution agreements for band-adminis-
tered health services. Indian witnesses were quick to point out, however, that the devolution
of health programs did not include a transfer of control. Real power remained with NHW.
Health care is a basic necessity. We are ready to implement health care services on
reserves, but the federal government is not. New federal legislation should enable us to
take control of this area. (Anishinabek Nation, Special 15:12)
The interrelationship between health care and other factors such as housing, community
infrastructure and employment cannot be denied. An unhealthy child with low resistance to
colds and infections is unlikely to do well at school. An alcoholic mother may bear a child
suffering from fetal alcohol syndrome. Health, in particular preventive health care, is an
essential component of many other programs and activities. A holistic approach is required.
Indian communities would like to have the power to establish priorities, co-ordinate the over-
all planning, and control the process of health care.
Our goals are to improve the health status of the Blackfoot Band with emphasis on preven-
tive health; advocate and encourage health careers, professional or para-professional,
among the young Blackfoot; establish a tribal health planning process—that is taking
place now; initiate a comprehensive communications system; establish rapport within and
among all sectors. I would underline that word rapport, because this is something that not
too many sectors talk about. Rapport means to exist in harmony. (Blackfoot Band, Sub
8:85)
Health has a less tangible dimension, not demonstrable by death or disease statistics, yet
just as real and possibly more important. It is ‘whole health’, involving spiritual, social,
and mental aspects of the life of the individual and the community. It is ‘health as
strength’. . . as togetherness, as harmony with the universe, as self-esteem, pride in self and
group, as self-reliance, as coping, as joy in living. . . (W.G. Goldthorpe, report tabled by
Kwakiutl Tribal Council, Special 5)
Health and Welfare officials also supported a holistic approach:
I think a healthy community is one that looks at itself in a rather comprehensive and holis-
tic way, and that the concept that by more medicine we can improve the indices of health
has its limitations. I think we are firmly committed to the view that real improvements,
dramatic improvements in the health of many native communities, have to come about as
a result of a multiplicity of things: as a result of improvement in the employment situation,
improvement in the economic situation, improvement in the housing situation, improve-
ment in the community infrastructure. We do not think we can improve those very tragic
statistics solely by the application of contemporary medicine. The renewal has to come
from within. (Sub 6:37)
The provision of health services is an area where the importance of traditional practices
must be emphasized. The Chiniquay Band, for example, expressed concern that health ser-
vices on the reserve have a corporate organizational structure that “is foreign to our tradi-
tional ‘clan’ social structure, and therefore causes family conflicts”. (Written Submission)
The importance of traditional medicine was pointed out by NHW officials and others.
It is clear that the Kwawkewlth people were a lot healthier before this last century. Their
health has declined with suppression of their language and culture, with the anti-potlatch
laws. . . Their health has declined with the death of the last Kwawkewlth medicine man,
with the forgetting of the healing powers of the herbs and barks around them. (W.G.
Goldthorpe, report tabled by Kwakiutl Tribal Council, Special 5)
We have come to appreciate very much the relevance and the utility of traditional
approaches, particularly to mental health problems—approaches which address the suicide
rate, approaches which address addiction problems. We believe that. in areas such as those
the application of traditional medicine and native culture perhaps can be more successful
than anything we could offer in terms of contemporary psychiatric approaches to those
kinds of problems. (Department of National Health and Welfare, Sub 6:29-30)
Unlike the testimony on education and child welfare, where possible systems for deliver-
ing services were described, witnesses did not specify how health care services should be pro-
vided. The emphasis was on control of the system rather than designing new systems. Indian
witnesses emphasized that, as a guiding principle, Indian First Nations should have flexibil-
ity in establishing arrangements for the delivery of services in general. This could involve
negotiating with provinces or private enterprises to provide the actual services or providing
them themselves. Control would remain with the Indian First Nation.
Several Indian First Nations have already taken steps to assume control over health
matters. The Alberta Indian Health Care Commission was established in 1980 to act as a
province-wide board of Indian health. The Cree Board of Health and Social Services, set up
pursuant to the provisions of the James Bay and Northern Quebec Agreement, was created
so that the Cree would have local and regional control of health and social services. But, as
noted earlier, ill-health is not an isolated issue that can be resolved with more and better
medical facilities. Through the exercise of Indian self-government Indian people will be able
to control the other problems to which ill-health is linked, in this way improving the state of
Indian health.
In summary, many witnesses asserted that there are matters that must be controlled by
Indian communities to ensure their cultural survival. Jurisdiction over such areas as educa-
tion, child welfare and health is considered essential. By exercising control over these mat-
ters, Indian people could ensure that future generations were able to preserve and enjoy their
culture and heritage. The balance of this report is devoted to recommendations that will help
to create the conditions under which these goals can be achieved.
CHAPTER 4
SELF -GOVERNMENT FOR
INDIAN FIRST NATIONS
The First Ministers’ Conference on Aboriginal Constitutional Matters, held in Ottawa
in March 1983, marked an important step toward the recognition of Indian First Nations in
the Canadian Constitution. As Prime Minister Trudeau observed in his opening statement:
Clearly our aboriginal peoples each occupied a special place in history. To my way of
thinking, this entitles them to special recognition in the Constitution and to their own
place in Canadian society, distinct from each other and distinct from other groups who,
together with them comprise the Canadian citizenry.
The Committee fully endorses the Prime Minister’s remarks. The Committee further
believes that special and distinct recognition can best be manifested by Indian First Nation
governments having a unique place in the Canadian political system and the Constitution.
The Need For A New Relationship
For thousands of years prior to European immigration, North America was inhabited
by many different self-governing aboriginal peoples, speaking many languages and having
widely differing cultures and economies. The Royal Proclamation of 1763, which formalized
British colonial policy for North America, recognized this situation.
Over the years, however, the initial relationship between Indian people and the British
Crown changed. In the evolution of Canada from colonial status to independence, the Indian
peoples were largely ignored, except when agreements had to be made with them to obtain
more land for settlement.
The Indian peoples played no part in negotiating Confederation, or in drafting the Brit-
ish North America Act of 1867 which, under section 91(24), assigned legislative authority
with respect to “Indians, and Lands reserved for the Indians” to the federal government. The
government assumed increasing legislative control over Indian communities, leading to The
Indian Act, 1876, which, with minor modifications, remains in effect today. The result, over
the years, has been the steady erosion of Indian governmental powers.
Under the Indian Act, traditional Indian governments were replaced by band councils
that functioned as agents of the federal government, exercising a limited range of delegated
powers under federal supervision. The Indian Act also failed to take into account the great
diversity of Indian peoples and cultures and treated all Indians in Canada as a homogeneous
group. These two features of the Act prevail today.
The Committee’s extensive inquiry has confirmed that the current relationship between
Indian peoples and the federal government is unsatisfactory. Witness after witness spoke of a
“legacy of injustice, exploitation, bureaucratic insensitivity and non-Indian self-interest”.
(Special 5:63)
In Chapters 2 and 3 we showed that despite many well—meaning attempts to improve the
relationship, most Indian communities across Canada are characterized by abject poverty,
malnutrition, poor health, high infant mortality rates, minimal education, and economic
under-development. Chief David Ahenakew, National Chief of the Assembly of First
Nations, testified that “current federal policies and institutions are operating to reinforce
Indian poverty and dependence, rather than to promote self-sufficiency and self-determina-
tion. This course has taken an appalling toll in both human and financial terms.” (Sub 3:5)
Indian First Nation witnesses argued that far-reaching change was needed, change that
would amount to an entirely new relationship.
We could talk about inadequate housing, sewer systems, and fire protection well below
Canadian standards. We could talk about the lack of economic development and high
unemployment rates in our communities. We could talk about the specifics of government
programs, policies and regulations. We could talk about how the energy and talent of
Indian communities are drained and wasted, reacting to the self-perpetuating bureaucracy
of your government.
However, we are not here to talk about the potholes on the road to self-government, which
we can best pave ourselves with the jurisdictional authority to do so. We wish to put for-
ward suggestions for creating a new order in the Canadian/aboriginal relationship.
(Nishga Tribal Council, Special 7:34)
Thoughtful and knowledgeable non-Indian observers have come to similar conclusions.
Speaking in 1974, Dr. Lloyd Barber, at that time Commissioner of Indian Claims, said:
. . .Native people are seriously talking about a distinctly different place within Canadian
society, an opportunity for greater self-determination and a fair share of resources based
on their original rights. No doubt this will require new and special forms of institutions
which will need to be recognized as a part of our political framework.
The 1979 report of the Pepin-Robarts Task Force on Canadian Unity, A Future
Together, also pointed to the need to act:
It is now appropriate that specific attention be paid to the issue of the constitutional posi-
tion of the first Canadians. More specifically, both provincial and federal authorities
should pursue direct discussions with representatives of Canada’s Indians, Inuit and Métis,
with a view to arriving at mutually acceptable constitutional provisions that would secure
the rightful place of native people in Canadian society.
While this kind of awareness is not shared by Canadians generally, a witness drew the
Committee’s attention to the “dramatic change in the last few years”.
[The report of the] Mackenzie Valley pipeline inquiry in 1977 discussed the concept of
Indian self-determination and called for a social contract between the Indian nations and
the political institutions of Canada. Since then, the need for the special constitutional
provisions on aboriginal rights and title has been recognized by the Canadian Bar Associa-
tion in their report, Towards a New Canada; by the Pepin-Robarts task force on national
unity; by the Quebec government’s white paper, Quebec-Canada: A New Deal; and by the
Quebec Liberal Party proposal, A New Canadian Federation. In February 1979, the
Prime Minister and the provincial premiers agreed that the Indian peoples had to be con-
sidered in a process of constitutional change. They agreed to add a new item to their
agenda: Canada’s native peoples and the Constitution. On September 28, 1979, Prime
Minister Clark agreed that the National Indian Brotherhood would have a full, equal and
ongoing role in federal-provincial discussion on that agenda item. In March of this year
[1983] a First Ministers’ Conference will convene to discuss the definition of indigenous
aboriginal nations’ aboriginal and treaty rights. (Bella Coola District Council, Special
6:80)
Indian peoples in Canada must control their own affairs. A new relationship is urgently
needed that respects the diversity, the rights and the traditions of Indian First Nations.
I think the message. . .is to make absolutely sure. . .we are talking about relationships that
respect the traditions and culture of those people. . .without trying to impose on them some
kind of non-Indian relationship. If we can do that on the basis of mutual respect and trust,
then I think we have gone half way to solving a lot of the problems we have. (Native
Council of Canada, Sub 7:9-10)
A new relationship would be beneficial to Canada; it would eliminate the tensions, the
inefficient use of funds and the unacceptable social conditions that keep Indian peoples from
contributing to the country’s progress. In a democratic age, it is incongruous to maintain any
people in a state of dependency. The federal government, particularly as represented by
Department of Indian Affairs and Northern Development, would no longer find itself in a
conflict of interest situation, being called upon to defend Indian interests while also being
expected to represent the federal position.
Indian people would likewise benefit from a new approach. Ending dependency would
stimulate self-confidence and social regeneration. Instead of the constant and debilitating
struggle now faced by band councils, which are expected to administer policies and programs
imposed by the Department of Indian Affairs, Indian First Nation governments would get on
with the business of their own governmental affairs. Self-government would also simplify the
political position of Indian leaders, who are now caught between the demands of their elec-
tors and those of the federal government, which funds their programs.
1. The Committee recommends that the federal government establish a new relationship
with Indian First Nations and that an essential element of this relationship be recognition of
Indian self-government.
Many witnesses emphasized that, in seeking to establish Indian First Nation govern-
ments, they did not wish to create divisions that would weaken Canada. Their object is to
change the relationship of Indian First Nations to other governments, not to fragment the
country. In their opinion, the exercise of political self-determination is a necessary step
toward national unity. Canada would be strengthened, not weakened as a result.
There must be unity, if you will, or cohesiveness in this country. There must never be any
dismemberment of the country. I do not want to get into these western separatists, or Que-
bec separatists, or any separatists in the country. I can assure that you we will fight that.
We do not want our country to be dismembered. Just because what we are talking about is
separate, putting into place a separate order. . . that does not mean that we are going to
change the nature of this country. Certainly we are going to change the nature of law-
making, administering, policy-making, and so on.
Yes, the provinces must become involved—not because the Constitution says so, but
because of the very nature of the way in which this country is structured. We can say that
the Constitution compels us to have the provinces participate and be involved every step of
the way. . . But that is not the real reason, in our opinion. The reason is because they have
governments within the provinces or territories, therefore, they too must change their laws,
their practices, to accommodate ours; and it must be done fairly. . . We do not have any
hang-ups right across the country about the very thing that we are discussing now.
(Assembly of First Nations, Sub 3:28)
International Experience
To determine whether the experience of other countries with indigenous populations
could be helpful to Canada, the Committee commissioned research on international policy
and practice. The study concluded that arrangements in other countries have not generally
provided opportunities for genuine self-government by indigenous peoples. No international
models were found that would be readily transferable to Canada.*
* Greenland does, however, offer some possibilities as a model for the Eastern Arctic.
Some aspects of the relationship between Indian tribes and the United States govern-
ment, however, were of particular interest to the Committee. Early judicial rulings in the
United States recognized the sovereignty of Indian nations and the fact that it stemmed from
their own independence, not from the delegation of power by any external government.
Tribes were described as “domestic dependent nations” and retain to this day some sovereign
powers of self-government. The legal tradition in Canada is very different.
To gain a better understanding of this relationship, the Committee travelled to the
United States to meet with U.S. government officials and Indian leaders. Just prior to the
Committee’s visit, President Ronald Reagan issued a statement on Indian policy, which read
in part:
When European colonial powers began to explore and colonize this land, they entered into
treaties with sovereign Indian nations. Our new nation continued to make treaties and to
deal with Indian tribes on a government-to-government basis. Throughout our history,
despite periods of conflict and shifting national policies in Indian affairs, the government-
to-government relationship between the United States and Indian tribes has endured. The
Constitution, treaties, laws, and court decisions have consistently recognized a unique
political relationship between Indian tribes and the United States which this Administra-
tion pledges to uphold.
While the tone of this pronouncement contrasts sharply with Canadian policy, the Com-
mittee learned that in practice Indian people in the United States face many of the same
problems experienced by Indian people in Canada.
The Committee was interested in the work of such U.S. Indian organizations as the
Council of Energy Resource Tribes and the American Indian National Bank. (See Appendix
G for a complete list of organizations with which the Committee met during its visit.) A visit
to several pueblos in New Mexico, including the opportunity to observe a meeting of the
Eight Northern Indian Pueblos Council, enabled the Committee to see a unique Indian gov-
ernmental system in operation in the United States today. The development of Indian law
and the advocacy of Indian interests before the courts—supported by the Institute for the
Development of Indian Law, the Native American Rights Fund, and the Indian Law
Resource Center—have had a notable effect on recent judicial rulings concerning Indian
rights. These initiatives have helped to improve the situation of Indian people in the United
States. The Committee gained valuable insights from its visit but concluded that Canada
must develop its own approach.
Establishing Self-Government
In considering a new relationship, the Committee found itself at the beginning of a pro-
cess with the potential for significant change. Current legal assumptions offer an inadequate
basis for the new relationship. Band councils do not form part of the constitutional structure
in the same way as federal and provincial governments do. They exercise only those powers
permitted by the Indian Act. Accordinglto traditional constitutional interpretation prior to
the recognition and affirmation of “existing aboriginal and treaty rights” in the Constitution
Act, 1982, all primary legislative powers were deemed to be vested either in Parliament or in
provincial legislatures. The inclusion of existing aboriginal and treaty rights in the Constitu-
tion may have altered this situation. If, as many assert, the right to self-government exists as
an aboriginal right, there could be a substantial re-ordering of powers. Indian governments
may have implicit legislative powers that are now unrecognized.
Many Indian witnesses asserted that rights implicitly recognized in the Royal Procla-
mation of 1763 and in the treaties provide a basis in law for true Indian governments to be
recognized by the Canadian government and for Indian people to exercise their inherent
right to self-government. The Royal Proclamation formalized the process through which the
British people and authorities were to relate to Indian nations and tribes. In so doing, it rec-
ognized aboriginal title and rights to the land and placed limits on the way colonial govern-
ments could secure land for settlement. Witnesses argued that the Proclamation also implied
recognition by the Crown of autonomous Indian governments. Judy Sayers, speaking for the
Canadian Indian Lawyers’ Association, asserted that
an inherent right [to self-government] was preserved in the Royal Proclamation of 1763
and acknowledged by Lord Denning.* . . .Any rights or freedoms recognized by the Royal
Proclamation of 1763 are now guaranteed in the Constitution Act, 1982, section 25.
* Lord Denning, Master of the Rolls, is an English judge who heard an important case brought in the Court of
Appeal of England by the Indian Association of Alberta, the Union of New Brunswick Indians and the Union
of Nova Scotia Indians in 1982 prior to patriation of the Constitution.
She concluded with the statement, “There is in law and history a definite basis for self-deter-
mination and self-government.” (Sub 13:6)
The critical importance of the Royal Proclamation has been affirmed by the courts. As
Mr. Justice Hall stated in the case of Calder v. Attorney General of British Columbia
(1973):
This Proclamation was an Executive Order having the force and effect of an Act of Parlia-
ment and was described. . .as the “Indian Bill of Rights”. Its force as a statute is analo-
gous to the status of Magna Carta which has always been considered to be the law
throughout the Empire. . . .The Proclamation must be regarded as a fundamental docu-
ment upon which any just determination of original rights rests.
The Indian Association of Alberta submitted a legal opinion by Professor E.P. Mcndes
entitled “Are There Constitutional and Inherent Rights of Indian Self-Government?”. It
noted that “the Assembly of First Nations and the Indian Association of Alberta believe that
their right to Indian self-government is first and foremost protected by the Royal Proclama-
tion.” It went on to interpret Lord Denning’s judgement in the following terms:
Lord Denning. . .seemed to infer that the colonising British authorities seemed to have rec-
ognized this inherent right of self-government by traditional and customary laws of the
native peoples even at the time of the passing of the Royal Proclamation of 1763, and that
the Royal Proclamation recognized the right of the native peoples of British North
America to govern themselves by their own traditions and customary laws. (Sub 1 lA:6)
The opinion concluded with this assessment: “The native peoples of Canada could put a per-
suasive case forward that there is an inherent right of native self-government on Indian
lands”. (Sub 11A:l5)
The Constitution Act, 1982 clearly represented a forward step by recognizing and
affirming existing aboriginal and treaty rights. But it did not define those rights. Lord Den-
ning recognized the value of constitutional entrenchment but also noted the importance of
holding the Constitutional Conference provided for in section 37 of the Act, as this was a
process through which aboriginal and treaty rights could be defined more clearly. It might
well be argued that it is not the rights of Indian people that are ill-defined, but the recogni-
tion of these rights in Canadian law that has been ill-defined.
The definition of these rights has already been the subject of one Constitutional Confer-
ence (Ottawa, March 15-16, 1983). In the 1983 Constitutional Accord on Aboriginal
Rights, the product of that Conference, the participants agreed to hold further conferences
to discuss constitutional matters directly affecting the aboriginal peoples of Canada, includ-
ing self-government.
2. The Committee recommends that the right of Indian peoples to self-government be
explicitly stated and entrenched in the Constitution of Canada. The surest way to achieve
permanent and fundamental change in the relationship between Indian peoples and the fed-
eral government is by means of a constitutional amendment. Indian First Nation govern-
ments would form a distinct order of government in Canada, with their jurisdiction defined.
A constitutional amendment would, however, require the approval of the federal govern-
ment and seven provinces constituting 50 per cent of the population. Since the constitutional
process may be protracted, the Committee considered other courses of action for achieving
Indian self-government: the courts, the bilateral process and legislative action.
The Courts
The Committee considered the usefulness of a judicial ruling to establish whether self-
government is an existing aboriginal right and therefore a right of Indian First Nations in
Canada.
The courts may eventually rule on this issue. An Indian First Nation government might
assert jurisdiction as against the federal or a provincial government and seek to have its right
to exercise that jurisdiction challenged in the courts. The issue might also ariseperipherally
in another case. Obtaining a judgement in the Supreme Court of Canada is a very lengthy
process. The fundamental issue may not be directly addressed. In any event, a single court
ruling could not define the full scope of Indian government or even design a new structure
accommodating Indian government, although it might provide some impetus to political
action. Clearly, it is an option that Indian First Nation governments might pursue, and they
are free to do so. But the Committee regards this procedure as difficult to execute and uncer-
tain in its outcome.
The Bilateral Process
It was strongly argued before the Committee that an Indian order of government
already exists in Canada; that the federal government already has the authority to recognize
Indian First Nations as self-governing entities without constitutional change; and that
through bilateral discussions, jurisdictional arrangements could be agreed to between the
federal government and Indian governments.
The proper way to define and establish relations between our Indian governments and the
rest of Canada is not through legislation or constitutional amendments, but by a basic
political agreement, a covenant or social contract. A basic compact will respect the princi-
ple of the equality of peoples. It can be an integral part of the Canadian Constitution while
it serves as a constitution confederating Indian nations in Canada. But as a social contract
it cannot be changed without the consent of both sides. As a part of the constitutions of
both parties, each side will be required by Canadian law, by traditional aboriginal law and
by international law to respect its terms. (Bella Coola District Council, Special 6:81)
The treaty-making process provides both the basis of, and a model for, the bilateral pro-
cess. In the Indian view, treaties guaranteed the right to self-government:
The right to Indian government was guaranteed by our ancestors under the spirit and
intent of the treaties. Treaty No. 4 of 1874 stipulated that the Indian way of life would not
be changed but would survive in perpetuity. International law and basic principles of
human rights recognize that for a way of life to survive the people concerned must have
the right to develop politically in any direction they choose. This treaty guarantee
acknowledges the inherent right to self-government, which flows from the choice of the
people. (Starblanket Band, Special 11:9)
Witnesses also pointed out that the Royal Proclamation of 1763 recognized the exist-
ence of Indian governments and nations in its reference to “the several Nations and Tribes
with whom We are connected and who live under Our protection”.
The treaty-making process also provided a direct government-to-government link
between the Crown and Indian peoples. This, in the Indian view, was confirmed by the set-
ting aside of “Indians, and Lands reserved for the Indians” in a unique manner when the
British North America Act was passed in 1867. They therefore viewed the passage of suces-
sive Indian Acts as a misinterpretation of federal authority. Instead of continuing to enter
into agreements with Indian nations, the federal government legislated over them and
imposed restrictions on them.
Witnesses asserted that the treaty-making process could be revived, and that the federal
government and Indian First Nations could make all necessary arrangements by agreement,
Therefore the bilateral process was seen by some as the preferred route to self-government.
No legislation and no further constitutional change would be required to proceed in this
manner.
Certainly, the federal government continued to use the treaty process until well after
World War II. For example, it accepted adhesions to Treaty 6 in 1950, 1954 and 1956.
Treaty-making also implies recognition of Indian political structures. One drawback to rely-
ing on the treaty-making process, however, is that the courts, at least in earlier judgements,
usually described the treaties as ‘contracts’ and not as the equivalent of legislative or consti-
tutional documents.
Parliament has not attempted to exercise the full range of its powers under section
91(24), which sets apart “Indians, and Lands reserved for the Indians”. Consequently, the
limits of these powers have not been established. In the past, Parliament has, through the
Indian Act, legislated in a manner that has regarded Indian communities as less than muni-
cipalities. On the few occasions where it has legislated in a more wide—ranging manner—for
example, with respect to liquor, which is a provincial responsibility when not related to Indi-
ans—the courts have upheld the exercise of its powers.
The recognition and affirmation of “existing aboriginal and treaty rights” of Indian
peoples in Section 35 of the Constitution Act, 1982 changed the constitutional position of
Indian First Nations, but the implications of the change are not yet clear. The affirmation of
the special relationship and the reference to a bilateral process in the 1983 Constitutional
Accord are further important developments in relations between Indian First Nations and
Canada.
3. While the Committee has concluded that the surest way to lasting change is through
constitutional amendments, it encourages both the federal government and Indian First
Nations to pursue all processes leading to the implementation of self-government, including
the bilateral process.
Legislative Action
In its Order of Reference, the Committee was asked particularly to consider “legislative
and administrative change”. The Committee gave careful consideration to legislation as an
interim solution that would permit speedy action and might enhance the prospect for even-
tual constitutional change.
Proposals for Legislation Presented to the Committee
The Minister of Indian Affairs presented a discussion paper called The Alternative of
Optional Indian Band Government Legislation. These suggestions for new legislative and
administrative arrangements and witnesses’ reactions to them were discussed in Chapter 2.
The Committee’s assessment is that the DIAND approach would be unacceptable as the
basis of a new relationship for a variety of reasons. First, it was described by the Minister,
and perceived by the witnesses, as a revision within existing arrangements which have been
found to be unsuccessful and limiting; it is a further extension of ‘devolution’, which has been
rejected. The proposal envisages Indian governments as municipal governments and fails to
take account of the origins and rights of Indian First Nations in Canada. A major objection
is that permission to opt in would be a favour granted to bands that the Minister of Indian
Affairs, in his discretion, deemed to be sufficiently “advanced”. The paternalistic role of the
Department would be maintained.
4. The Committee rejects the Department’s band government proposal. Although there
have been years of consultation, there was no general agreement of Indian representatives,
and the proposal finally emerged from a unilateral government decision.
Several bands and organizations made constuctive and creative suggestions for legisla-
tive change. In some cases, these proposals were based on the Indian Act. For example, the
Union of New Brunswick Indians proposed increasing the powers of band chiefs and councils
and removing all possibility that provincial laws would apply on reserves, but otherwise leav-
ing the Indian Act intact. (Special 23:9) The Sawridge proposal outlined a complete revision
of the Act, greatly increasing the powers of the Chief-in-Council, vesting all assets in the
Chief-in-Council in trust for the use and benefit of the band, and revising the membership
provisions. (Sub 11:14-16) Many other bands and organizations explicitly rejected any
“tinkering with the Indian Act”.
While the proposed amendments to the Indian Act would make much-needed improve-
ments, the Committee believes that a more far-reaching approach, including legislation
totally different from the Indian Act, would accommodate the special concerns of all groups.
Legislation such as the Committee is proposing could be implemented quickly and should
benefit all bands.
5. The Committee does not support amending the Indian Act as a route to self-govern-
ment. The antiquated policy basis and structure of the Indian Act make it completely unac-
ceptable as a blueprint for the future.
Witnesses also discussed entirely new proposals that they had developed to meet their
particular needs. The Sechelt Band presented draft enabling legislation that would permit
bands that met certain criteria (demonstrated administrative capacity, appropriate struc-
tures and practices, experience and readiness) to opt out of the Indian Act and operate under
a band charter that would have the force of law for that band. This approach had the explicit
support of a few band councils appearing before the Committee, since it would allow early
relief from the limitations on their powers and jurisdiction imposed by the Indian Act. The
Committee understands the objectives of the Sechelt Band and suggests that the proposal for
legislation outlined in the next few pages would meet these objectives and, in fact, go much
further.
The Grand Council of the Crees described recent negotiations leading to a proposed
Cree-Naskapi Act, as a follow-up to the James Bay and Northern Quebec Agreement. They
emphasized the importance of this legislation to Cree self-government, but stressed that the
draft represents “Cree aspirations and the Cree position”. (Special 29:57) There was no
implication that this legislation should be a model. On the contrary, they made it clear that
they explicitly rejected departmental assumptions that this proposal would be used as a
model for self-government legislation, although other Indian First Nations would be free to
adopt appropriate elements:
There has been a tendency on certain occasions during the discussions to make reference
to the application of what we are talking about to other areas, other bands, and the prob-
lems that would entail: the precedents being set, the difficulties faced by the Department if
the same regimes, the same rights, the same structures were applied elsewhere. We have
been, I think, very consistent on that in reminding the Department that this is special
legislation being enacted in virtue of section 9 of the James Bay and Northern Quebec
Agreement. That is what it is. It is not amendments to the Indian Act. It should have no
direct impact on other Indian people. (Special 29:86)
The Committee also had before it several proposals for a series of subject acts—for
example, an Indian Education Act, an Indian Child Welfare Act, and an Indian Corpora-
tions Act. On a national basis, this approach would require passage of numerous pieces of
complex legislation. The resulting legal framework might be too restrictive to meet the
diverse needs of Indian First Nations. While acknowledging that they could be useful guide-
lines for Indian First Nations developing legal codes, the Committee rejects the use of a ser-
ies of subject acts as the basis for Indian self-government.
The Committee supports the objectives of all these bands and organizations and recog-
nizes that their different approaches represent specific ways to escape from unsatisfactory
current situations. Their efforts showed the potential for innovative solutions designed to
meet specific needs. Within the approach suggested by the Committee, all such proposals
could form the basis of new arrangements for these groups.
6. The Committee is convinced that any legislation that could apply generally must offer
a framework flexible enough to accommodate the full range of governmental arrangements
that are being sought by Indian First Nations.
Is Legislation Necessary or Useful?
Many witnesses opposed any legislation prior to the recognition of self-government
and/or the settlement of land claims or treaty matters, believing that such legislation would
be restrictive rather than expansive. The Committee recognizes the validity of these concerns
and has taken them into account in proposing legislation as an important part of the process
of federal recognition of Indian governments in Canada and, ultimately, of constitutional
entrenchment.
A broad framework of general principles would appear to be the only model that would
both permit consensus to be achieved and be flexible enough to accommodate a great diver-
sity of arrangements, ranging from those set out by the Sechelt Band to those based on tradi-
tional laws and customs. Not only would Indian self-government be enhanced, but the spe-
cial relationship of the federal government with Indian peoples, and any residual federal
responsibilities to them, would be reaffirmed.
No specific recommendations can be made without going contrary to the spirit of a new
relationship. The Committee believes that its proposals would permit both the federal gov-
ernment and Indian peoples to build toward strengthened Indian governments. The Commit-
tee wishes to emphasize, however, that the only acceptable approach to legislation is that it
be developed jointly by designated representatives of Indian First Nations and the federal
government. It must be the responsibility of the First Nations themselves to select a method
of designating representatives to negotiate on their behalf.
The New Context for Legislation
Under section 91(24) of the Constitution Act, 1867, Parliament has exclusive power to
legislate in relation to “Indians, and Lands reserved for the Indians”. The power is exclusive
but not unfettered. Parliament’s actions are limited by the recognition and affirmation of
existing aboriginal and treaty rights.
In his decision in the Indian Association of Alberta case, Lord Denning discussed the
rights guaranteed to Indians and the constraints on Parliament resulting from these guaran-
tees. After noting the protection of rights in the new Constitution, and the importance of
defining these rights more clearly, he went on to say:
There is nothing, so far as I can see, to warrant any distrust by the Indians of the Govern-
ment of Canada. But, in case there should be, the discussion in this case will strengthen
their hand so as to enable them to withstand any onslaught. They will be able to say that
their rights and freedoms have been guaranteed to them by the Crown—originally by the
Crown in respect of the United Kingdom—now by the Crown in respect of Canada—but,
in any case, by the Crown. No Parliament should do anything to lessen the worth of these
guarantees. They should be honoured by the Crown in respect of Canada “so long as the
sun rises and the river flows”. That promise must never be broken. (p. 99)
Any proposed legislation must therefore be cognizant ofaboriginal and treaty rights and
take account of the process of defining them further, since legislation must conform to con-
stitutional standards.*
* “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provi-
sions of the Constitution, is, to the extent of the inconsistency, of no force or effect.” (Constitution Act, 1982,
s. 52(1))
With respect to Indians, the Constitution Act, 1982, recognizes and affirms their exist-
ing aboriginal and treaty rights (s. 35) without defining what those rights might be. Consti-
tutional matters directly affecting aboriginal peoples have been the subject of one Constitu-
tional Conference, and there will be future conferences to discuss these matters. This is the
“ongoing process”.
In addition, the guarantee of rights and freedoms in the Canadian Charter of Rights
and Freedoms is not to “be construed so as to abrogate or derogate from any aboriginal,
treaty or other rights or freedoms that pertain to aboriginal peoples”, including any rights or
freedoms recognized by the Royal Proclamation of October 7, 1763 (s. 25 of the Charter).
The Constitutional Accord puts self-government on the agenda for discussion at future
constitutional conferences. The Prime Minister alluded to possible new constitutional
arrangements for self-government by aboriginal peoples; Indian groups take the very strong
position that the right to self-government forms a part of aboriginal rights and must be rec-
ognized. Legislative proposals must be forward-looking, designed to set appropriate long-
term policy. It can therefore be argued that both the procedures and the substance of the
conferences on aboriginal rights should have a bearing on any proposed legislative action. In
the meantime, policies and legislation should be brought forward that will further self-gov-
ernment.
7. The Committee recommends that the federal government commit itself to constitu-
tional entrenchment of self-government as soon as possible. In the meantime, as a demon-
stration of its commitment, the federal government should introduce legislation that would
lead to the maximum possible degree of self-government immediately. Such legislation
should be developed jointly.
The Committee is proposing a means through which the people of a First Nation might
have their government recognized. The entire process should be worked out in negotiations
between federal government representatives and designated representatives of Indian First
Nations, leading to an arrangement that would, for greater certainty and clarity, be set out
in legislation. The outlines of the proposal follow, beginning with a discussion of the basic
political unit.
STRUCTURES AND
POWERS OF INDIAN
FIRST NATION
GOVERNMENTS
*See PDF for image
CHAPTER 5
STRUCTURES AND POWERS OF
INDIAN FIRST NATION GOVERNMENTS
The Starting Point
Before the arrival of European settlers in Canada, Indian tribes, nations and confedera-
cies occupied virtually the whole territory, with boundaries defined and confirmed by custom
and treaties. Within nations, families were grouped together in villages, towns, clan units and
bands. As settlers spread across the country and occupied the land, Indian nations were
broken up into smaller units separated one from another, and their economies were dis-
rupted. In the late nineteenth century, these units were defined as ‘bands’, and a governmen-
tal system of ‘band councils’ was prescribed for Indian communities by the federal govern-
ment in the Indian Act. Bands are now the only Indian political unit recognized in Canadian
law.
Witnesses were all agreed that the movement toward self-government must begin with
the band.
The primary political unit of Indian government is the band. . . through which flows the
authority to govern and implement all powers of political autonomy through a true and
democratic process. (Federation of Saskatchewan Indian Nations, Special 11:8)
I think it is safe for the Committee to think initially of each individual ‘band’, as the
Indian Act calls them, as a ‘First Nation’. (Assembly of First Nations, Special 9:10)
Accordingly, the Committee concluded that the band has to be regarded as the point at
which to begin the process leading to self-government.
Witnesses also insisted that there be flexibility. Testimony indicated that some bands
will look to their original nation to constitute the primary political unit. In a few instances,
where different peoples have been brought together to form one band, a band may separate
into two or more units.
8. In the transition from the Indian Act to self-government, the Committee recommends
that the starting point be the band, with its membership newly defined. The federal govern-
ment should leave it to each band to decide whether its people would constitute themselves
as an Indian government, or would join with others to form an Indian government of which
the band would be a part.
Membership
Band membership has for many years been determined not by Indian people but by fed-
eral standards, which have excluded some people who properly belong. In the process of con-
stituting a First Nation, the true community identified with the band must be consulted.
Although the primary unit would therefore be based on current band groupings, restrictive
Indian Act definitions of membership would be inappropriate in the context of self-govern-
ment. The number of people involved in the process would be greater than the present mem-
bership through the inclusion of some people now excluded from membership by the opera-
tion of the Act.
Witnesses were unanimous that each Indian First Nation government should determine
its own membership. The Indian Act now contains detailed and complicated provisions defin-
ing membership in an Indian band. Enforcement of these provisions frequently means that
people who do not meet these criteria must move away from the community, thus leading to
the loss of cultural identity by subsequent generations. It has been argued that control over
membership is not only a right, but that it is also essential to ensure cultural, linguistic and
ethnic survival.
While the general thrust of testimony concentrated on the right of each First Nation to
determine its own membership, opinions differed as to whether Indian governments should,
prior to establishing membership regulations, be required to reinstate people who have been
removed from band membership by the operation of the Indian Act. Witnesses representing
the Native Women’s Association of Canada and the Native Council of Canada advocated
this position:
[Our basic position is that] . . . Indian governments determine their own membership, but
only after all of those so titled have been listed or relisted on their respective band lists.
(Native Women’s Association of Canada, Special 33:8)
The Native Council of Canada will continue its role of pressing for the rights of the non-
status Indians and in cases where this situation [loss of status] has been created by the
Indian Act, that reinstatement be automatic, upon the choice of the individuals, families or
bands so affected.
Only after this has been provided for do we fully subscribe to the principle that it is up to
each Indian government, traditional or legislative, to determine its own membership.
Again, this reservation is only with respect to Indian persons, individually or collectively,
who have lost status because of the Indian Act. (Native Council of Canada, Sub 7A:9)
Representatives of Indian band governments rejected any federal intervention in the
matter of reinstatement.
It is up to the Indian governments across the country to resolve that and to put into place
some just means of making sure that there is reinstatement or whatever it is they want to
do. (Assembly of First Nations, Special 3:31)
The following procedure might be adopted by Indian First Nations to determine mem-
bership or citizenship:
1. The people in each community would begin with the Indian Act list, plus those who
might be reinstated by any changes in legislation.
2. These people would get together to ask who might be missing and to include those
they wished to include.
3. These people would agree on membership criteria and thus decide who else might be
included or excluded. The criteria should be in accordance with the standards in
international covenants concerned with human rights.
4. These same people would agree on appeal procedures and mechanisms.
5. The whole group would then determine their form of government and apply for
recognition.
9. The Committee asserts as a principle that it is the rightful jurisdiction of each Indian
First Nation to determine its membership, according to its own particular criteria. The
Committee recommends that each Indian First Nation adopt, as a necessary first step to
forming a government, a procedure that will ensure that all people belonging to that First
Nation have the opportunity of participating in the process of forming a government, with-
out regard to the restrictions of the Indian Act.
Testimony was received about the need for appeal procedures for those who had been
excluded from membership. Several witnesses spoke about membership codes in which such
procedures were spelled out. Among the suggestions were the use of a referendum, appeal to
-a council of elders, or an Indian membership court. Although the exact nature of the appeal
process should be up to each Indian First Nation, the process for recognizing Indian First
Nation governments could include verification that an appeal mechanism was in place to
protect individual rights.
Several witnesses suggested a two-tier system, which would allow Canada to recognize
individuals as Indians even though they might not be recognized by an Indian First Nation
as a member. The United Native Nations, for example, spoke about reinstatement of status
on a general list, but noted that it would be up to each band to decide whether to admit a
person to band membership. (Special 17:21) The Association of Iroquois and Allied Indians
set out the following structure:
The Association recommends a two-tier system of status and membership.
Federal legislation would recognize all persons constitutionally “Indian” as Indians for the
purpose of Indian programs. It is acknowledged that not all programs will necessarily be
available to all Indians.
Indian governments will determine band membership for the purpose of voting, sharing in
Indian assets such as reserve lands, capital distributions, etc.
This, in effect gives the Indian government control over who shares in its communal assets.
In the corporate model, this is analogous to a closely-held corporation. In terms of the
present Indian Act, Indian status would be analogous to registration on the general list,
while band membership would be analogous to registration on a band list. (Association of
Iroquois and Allied Indians, Special 16A:16-17)
Such an arrangement would involve benefits given by the federal government to
individuals; it is not a question involving Indian First Nation governments. The approach has
the merit of meeting the concerns of some witnesses without imposing anything on Indian
First Nation governments.
10. The Committee recommends that the federal government consider using a general
list as a means of providing special status to people who are Indian for purposes of Indian
programs, but who are not included in the membership of an Indian First Nation.
Flexible Arrangements
It can be expected that several Indian First Nation governments may wish to combine
for various purposes—administrative, economic or cultural. Examples would be education
associations, economic development corporations, tribal councils, treaty organizations and
assemblies. Legislative authority would, however, be with Indian governments, and the pri-
mary relationship of the Indian people involved with the federal government would be
through those governments.
It is important that arrangements under which the federal government relates to and
recognizes Indian governments allow for change over time. For example, the composition of
governments may change. Separate communities with separate governments may want to
merge and form a single government. Others may wish to separate and possibly regroup. In
the Committee’s view it would be desirable to accommodate this kind of change, which is
entirely natural. It would, however, be essential that the people of all groups concerned
approve.
As Indian people begin to plan their systems of government, it can also be expected that
a wide variety of governmental styles will emerge. These styles will reflect historical and tra-
ditional values, location, size, culture, economy, and a host of other factors. This diversity is
to be respected. It can further be expected that these developments will proceed at different
paces, and no time limits or pressures should be imposed. Indian governments will benefit
from each other’s experience. Needs will also change as conditions evolve and as structures
appropriate for one stage cease to be appropriate for another. The federal government should
be careful that any system for relating to and recognizing Indian First Nation governments
be able to accommodate changes in the structure and composition of those governments.
A special problem faces communities that have maintained close ties and a cultural base
but that are not now recognized as bands. They should be free to seek recognition as well as
to pursue negotiations to acquire a land base.
We do not want to prejudge the forms. We do not want to create a static form of govern-
ment by recognizing only what is there now. In other words, the principle of evolution,
evolving forms of government, is very important to us.
. . .Whatever the forms are, existing ones or some modified ones in the future, they have to
be made pursuant to Indian initiative and with Indian consent. (Joint Council of Chiefs
and the All—Chiefs’ Budget Committee of the Assembly of Manitoba Chiefs, Special 3:67)
Constituting Indian First Nation Governments
The people themselves should determine the structure of government they wish to have.
They might do this through a process analogous to a constituent assembly. The structures of
government elaborated by this process might closely resemble the band council format or
they could be something very different. The essential feature is that the form of government
would in each case be decided upon by the free choice of the people involved.
11. Eventually, Indian First Nation governments should be recognized and protected
through constitutional provisions. Until this can be accomplished, the Committee recom-
mends that the federal government introduce an Indian First Nations Recognition Act,
which would confirm the federal government’s willingness to recognize the maximum
amount of self-government now possible under the Constitution. It would establish criteria
to be met by any First Nation government wishing to be recognized as self-governing, such
as:
(a) demonstrated support for the new governmental structure by a significant majority
of all the people involved in a way that left no doubt as to their desires;
(b) some system of accountability by the government to the people concerned; and
(c) a membership code, and procedures for decision-making and appeals, in accord-
ance with international covenants.
The contents of the proposed Recognition Act should be developed jointly by the federal
government and designated representatives of Indian First Nations. It must be the responsi-
bility of First Nations themselves to select a method of designating representatives to
negotiate on their behalf. Aside from the development of acceptable and workable legisla-
tion, the federal government should refrain from becoming directly involved in community
decisions about self-government.
Some communities may be divided on the extent to which they wish to move toward
self-government or on the form of government to be established. In such instances the com-
munities themselves should establish what they wish to do and who speaks for them. Only
then should the federal government become involved.
It will be important for each Indian First Nation to develop systems of accountability
that they might adopt or adapt and entrench in their governmental structures. Specifically
these might include provisions relating to:
financial and other information, annual reports, and audit reports that are readily
available and easily understood;
the reserving of certain rights and areas of interest in which officials would not have
authority to act without the people’s approval;
a system through which officials could be removed from office;
a system through which decisions that are felt to be unjust or improper could be
appealed; and
the protection of individual and collective rights.
The need for accountability systems was widely supported by Indian witnesses. They
insisted, however, that each Indian First Nation should develop its own arrangements.
. . .the Indian nations of the country would want nothing more than accountability under
their own terms to their own people. We must have that accountability to them. Right now
we do not. We do not have the right to account to our constituents. . . The Minister has all
the authority. (Assembly of First Nations, Sub 3:38)
Each Indian government, through its own internal legislation, administrative and legal
processes, will identify its own internal accountability, the means by which its own citizens
can exercise their democratic right to know about and control their own resources.
(Dakota Nations, Special 122120)
In summary, an Indian First Nation Recognition Act would demonstrate that the fed-
eral government was committed to recognizing the maximum amount of self-government
now possible under the Constitution. Specifically, it would:
(a) specify minimum criteria, such as popular support, accountability and a member-
ship code, and establish a process for verifying that Indian bands wishing to be rec-
ognized as self-governing had met these criteria; and
(b) elaborate a procedure under which recognition would be accorded.
In subsequent pages, the Committee suggests the establishment of a new ministry of
state to manage federal relations with Indian First Nation governments. As well, a panel
would be set up to make recommendations to the federal government regarding recognition.
Before elaborating these points, the Committee has additional proposals for legislation to put
forward.
Additional legislation would be needed authorizing the federal government to enter into
agreements with recognized Indian First Nation governments. It could be modelled on the
Agricultural and Rural Development Act of 1970, which authorizes federal negotiations
with the provinces. Through similar legislation, the federal government would be authorized
to sign agreements with First Nation governments detailing legislative authority and fund-
ing.
Once agreements were concluded, they would be ratified by a process specified in the
legislation and would provide the framework in Canadian law for that particular Indian First
Nation. In those instances, the Indian Act would not be in effect for the Indian First Nation
concerned. A section of the recognition statute could state that agreements were to apply
“notwithstanding the Indian Act”. The Indian Act would remain in force for those bands
that wished to continue under it and would provide a legal structure while agreements were
being negotiated.
The particular merit of this approach is that each Indian First Nation government
would assume as much jurisdiction as it wished, and the scope of its jurisdiction could be
changed over time. The approach has another distinct advantage: the transition to a distinct
order of government in Canada by constitutional change would be easier, because Indian
governments would already be functioning. It should even facilitate movement toward con-
stitutional entrenchment by demonstrating the feasibility of self-government and the benefits
that would flow from Indian First Nations resuming control of their own affairs.
The third legislative move necessary to facilitate the accommodation of Indian First
Nation government would be for the federal government to exercise its jurisdiction with
respect to “Indians, and Lands reserved for the Indians” in all fields, particularly where the
absence of federal legislation has resulted in the extension of provincial jurisdiction to Indian
lands and peoples. Representatives of the Canadian Indian Lawyers’ Association pointed to
the exclusive jurisdiction of the federal government over Indians and Indian lands, even with
respect to matters otherwise falling under provincial jurisdiction:
Under Section 91(24) of the Constitution Act, 1867, [formerly the B.N.A. Act], the fed-
eral government is given exclusive jurisdiction over Indians and Indian lands. This means
that the federal government has the power to pass legislation with respect to Indians and
Indian lands without respect to the provinces. This is well illustrated in the Indian Act,
which deals with areas that are within provincial jurisdiction. Areas such as wills and
estates, motor vehicles, marriage, property, creditors’ rights, and liquor are all included in
the Act. It can therefore be concluded that the federal government has the authority to
legislate in all respects of Indians dealing with an area under Section 92 of the Constitu-
tion Act, 1867. (Sub 13:8)
The Committee’s view is that Parliament should move to occupy the field of legislation
in relation to “Indians, and Lands reserved for the Indians” and then vacate these areas of
jurisdiction to recognized Indian governments. The exact manner of proceeding would
require careful consideration and consultation among the federal government, representa-
tives of Indian First Nations and, where applicable, provincial governments. The federal gov-
ernment would proceed to legislate in all areas in which Indian First Nations wished to exer-
cise jurisdiction. Then it would vacate those fields of legislative powers and recognize the
duly constituted First Nation government as the appropriate body to exercise them. Indian
First Nation governments would then have jurisdiction. They could, if they wished, through
negotiation and agreement with the provincial government concerned, continue a provincial
program or service for their communities.
12. The Committee recommends three legislative measures:
1. The enactment of an Indian First Nations Recognition Act committing the federal
government to ‘recognize Indian governments accountable to their people.
2. Legislation authorizing the federal government to enter into agreements with recog-
nized Indian First Nation governments as to the jurisdiction that each government
wishes to occupy.
3. Legislation under the authority of Section 91(24) of the Constitution Act, 1867
designed to occupy all areas of competence necessary to permit Indian First
Nations to govern themselves effectively and to ensure that provincial laws would
not apply on Indian lands except by agreement of the Indian First Nation govern-
ment.
With this legislation in place and supported by appropriate agreements, Indian First
Nations could be self-governing in areas in which they wish to legislate.
It is vitally important to ensure that there be no uncertainty as to the legal status of the
newly recognized Indian First Nation governments. They would be governments competent
to operate within their spheres of jurisdiction, interact with other governments, make con-
tracts, take legal action, and own land. It should be made explicit in the proposed legislation
that Indian First Nation governments have these powers.
How does this proposal differ from the DIAND band government proposal to which it
may be compared? First of all, the Committee’s suggestion is based on a new policy
approach, which would set out the goal of a distinct order of government under new constitu-
tional arrangements. The legislative approach recommended by the Committee would open
the door to the future rather than facing Indian governments with the barricades of the past.
Second, the general structure would be decided upon through a bilateral process such as that
described in the Constitutional Accord, not through federally-initiated actions. Arrange-
ments would be based on mutual accommodations, not on acceptance or rejection at the
Minister’s discretion. Once the procedure was in place, a band’s decision to seek recognition
of its new structure, and the extent of jurisdiction it wished to exercise, would be based on
the band’s own assessment, not on the opinion of bureaucrats that the band was sufficiently
“advanced”.
Although agreements on some subjects can and should be reached and implemented
where statutory authorization is already available, in other areas only Parliament could pro-
vide the federal government with the authority necessary to act.
13. To ensure prompt action, the Committee recommends that any changes of policy
possible under existing laws that would enhance self-government and that are acceptable to
designated representatives of Indian First Nations be taken without waiting for the enact-
ment of new legislation.
Ministry of State for Indian First Nations Relations
The past history of the federal-Indian relationship has left a legacy of distrust and suspi-
cion that would seriously impair the capacity of the Department of Indian Affairs and
Northern Development to act as the federal instrument for developing a new relationship.
The Committee urges the establishment of a small new federal agency to signify the federal
government’s desire to begin a new stage of co-operative coexistence with the Indian First
Nations of Canada. Indian people would welcome such a move:
The only way to produce legislation acceptable to Indian people is to create an entirely
new ministry. The ministry would act as the governmental interface in all matters respect-
ing the development and reconstruction of band government. The working relationship
which the ministry would be designed to produce is one of co-operation and support.
(Union of British Columbia Indian Chiefs, Special 6:14)
The federal government found it advantageous to create a Federal-Provincial Relations
Office in 1975. Designated as a department, its objectives are:
(a) to assist the Prime Minister in his overall responsibilities for federal-provincial rela-
tions;
(b) to assist the Minister of State for Federal-Provincial Relations;
(c) to provide Cabinet with greater assistance in examining federal-provincial issues of
current and long-term concern; and
(d) to assist in developing federal-provincial consultation on an increasing range of
policy fronts.
It undertakes special studies, provides assistance to government departments on provincial
matters, and monitors provincial views on federal policies and the evolution of provincial
policies as they affect federal policies.
14. The Committee recommends that a Ministry of State for Indian First Nations Rela-
tions, linked to the Privy Council Office, be established to manage and co-ordinate the fed-
eral government’s relations with Indian First Nation governments.
This could include the conduct of negotiations under the bilateral process and responsibility
for the fiscal arrangements proposed for funding Indian First Nation government operations,
economic development, and the correction of serious infrastructure deficiencies. It should
deliver no services, but would co-ordinate its work with the existing Department of Indian
Affairs so that the transition to Indian First Nation government would be smooth. Under the
Ministers and Ministers of State Act of 1970, a Ministry of State for Indian First Nations
Relations could be created by order in council.
Recognition
The new Ministry should also be the federal agency responsible for recognizing Indian
First Nation governments.
15. Owing to the political sensitivity of the task, the Committee suggests that a small
panel be appointed jointly by the Minister of State for Indian First Nations Relations and
designated representatives of Indian First Nations to review requests for recognition and
consider whether they meet the agreed criteria.
The panel should transmit recommendations for recognition to the governor in council,
which in turn would pass an order in council empowering the Governor General to affirm
and record federal recognition of that First Nation government. The Committee thought it
important that the Governor General formally recognize Indian First Nation governments,
because Indian peoples in Canada have traditionally had a special relationship with the
Crown. The Governor General’s involvement would symbolize the unbroken link with the
Crown and confirm that recognition would continue from government to government. The
Committee suggests that the Governor General should establish a register of Indian First
Nation governments and that a formal ceremony mark the registration of each government.
16. The Committee recommends that the Governor General affirm and record federal
recognition of Indian First Nation governments that are accountable to their people and for
which significant support has been shown.
To recapitulate, Indian bands would go through the following steps:
1. Decide to govern themselves and set up a process, involving all of the people con-
cerned, to elaborate a form of government.
2. Once a complete structure was worked out, submit it to the people for ratification.
3. Seek recognition of the form of government.
4. Recognition having been acquired, the community would choose or confirm leaders
by the process specified under their form of government.
5. Decide, in consultation with the federal government, on the jurisdiction to be exer-
cised.
6. Once agreement was reached, the Indian First Nation government would begin to
operate under its powers. Agreements on jurisdiction could be re-negotiated from
time to time.
Special Funding
The process the Committee has recommended would involve extra costs for Indian peo-
ples. Materials and programs would have to be developed, meetings organized and advisers
retained. Since a fresh start is important, it is desirable that funding not be provided through
the usual channels, so as to avoid any risk of charges of interference in the process. It is
important that money not be used to further the status quo, but that it be available to all see-
tors of the community to constitute their governments.
17. The Committee recommends that one-time funding be made available to Indian
bands to assist them in developing their governments. The terms of such grants should be
worked out by agreement with designated representatives of Indian First Nations.
Facilitating Negotiations
With many negotiations to be undertaken, it can be anticipated that, even under the
best of circumstances, problems will arise. Past difficulties experienced by Indian communi-
ties in negotiating with the federal government have generated mistrust and suspicion, which
could complicate the many rounds of negotiations. In thinking of ways to facilitate these
negotiations the Committee looked at two examples.
With the development of extensive negotiations between the federal and provincial gov-
ernments, the two levels of government decided over a decade ago to set up the Intergovern-
mental Conference Secretariat to service federal-provincial conferences and meetings. This
small and entirely independent body has its own staff. It prepares agendas for federal-provin-
cial meetings and keeps the records of those meetings. Its function is to ensure that meetings
run smoothly and that fair records are kept; it is not concerned with the substance of ques-
tions. It is jointly funded by the federal and provincial governments to make clear that it
serves both levels of government. It is completely separate from the Federal-Provincial Rela-
tions Office. The Indian Commission of Ontario operates along similar lines.
18. The Committee recommends that the federal government and designated representa-
tives of Indian First Nations jointly appoint and fund an independent secretariat to provide
a neutral forum for conducting negotiations between them.
North of 60°
The social and political situation of Indian First Nations north of 60° is very different
from that prevailing in the provinces. Since territorial status is in evolution, Indian peoples,
other aboriginal peoples and non-Indian settlers of the northern territories have a unique
opportunity to build the basis for a new relationship more satisfactory than the one that
exists in southern Canada. At present, northerners are actively seeking self-government.
Both land claims and constitutional discussions are proceeding.
Witnesses at northern hearings described the attempts of First Nations and non-Indian
governments to create governmental structures to meet the common needs of all citizens of
Canada’s North and to respect all cultures. Ongoing negotiations reflect a desire to accom-
modate the legitimate rights and aspirations of all permanent residents north of 60°.
Undoubtedly, any model of self-government that emerges in the North will be adapted to the
unique needs of that region.
19. The Committee applauds all initiatives to design innovative government structures
for the North embracing all its peoples. The Committee’s recommendations focus primarily
on the geographically dispersed First Nations of southern Canada, but some of the ideas
presented in this report may be helpful to those working toward self-government in the
North.
Scope of Powers
Earlier in this report we discussed several jurisdictional areas of particular importance
to Indian First Nations—health, education and child welfare. That discussion by no means
covered all the powers that Indian First Nation governments might exercise on Indian lands.
Self-government would mean that virtually the entire range of law-making, policy, program
delivery, law enforcement and adjudication powers would be available to an Indian First
Nation government within its territory.
Many witnesses described the traditional jurisdiction of First Nations over their territo-
ries and expressed their desire that their right to exercise many of these powers be recog-
nized:
Traditionally, as aboriginal peoples we had uncontested supreme and absolute power over
our territories, our resources, and our lives. We had the right to govern, to make laws and
enforce laws, to decide citizenship, to wage war or to make peace, and to manage our
lands, our resources, and our institutions. We had our own political, legal, social, and eco-
nomic systems. We reaffirm our position, as non-treaty aboriginal peoples, that we have
never ceded through any agreements or conquest, or surrendered our aboriginal titles and
aboriginal rights. The power to govern rests with the people; like our aboriginal rights, it
comes from within the people and cannot be taken away.
Our Indian governments are to have exclusive jurisdiction to make laws in relation to mat-
ters coming within these classes of subjects—people, resources, and lands—without limit-
ing the scope of the possible subjects to be under the jurisdiction and authority of our
peoples. (Cariboo Tribal Council, Special 20:117)
Chief David Ahenakew put the matter very succinctly:
We expect that First Nations will retain and exercise most rights and jurisdictions which
provinces now have within Canada, and some others which are the special rights of the
First Nations. First Nations governments will have to develop judicial systems that will
establish laws, institutions, and procedures according to the needs and customs of each
First Nation. (Assembly of First Nations, Special 9:7)
Even now the range of matters managed by band councils cuts across jurisdictional
lines. Some band councils provide services usually handled by municipalities, such as gar-
bage disposal, water, fire protection and recreation. Others also administer programs such as
education, health, and child welfare, which are usually provincial responsibilities. Other
powers sometimes exercised are within federal jurisdiction—regulating fisheries, for
example.
While the Committee believes that the areas ofjurisdiction of First Nation governments
must be worked out through agreement, Indian First Nation governments would require
extensive powers if they were to be self-governing on their own territory and ensure their sur-
vival.
20. The Committee agrees that full legislative and policy-making powers on matters
affecting Indian people, and full control over the territory and resources within the bound-
aries of Indian lands, should be among the powers of Indian First Nation governments.
21. The Committee therefore recommends that Indian First Nation governments exer-
cise powers over a wide range of subject matters. The exact scope of jurisdiction should be
decided by negotiation with designated representatives of Indian First Nations. A First
Nation government should have authority to legislate in such areas as social and cultural
development, including education and family relations, land and resource use, revenue-rais-
ing, economic and commercial development, and justice and law enforcement, among others.
First Nation governments may also wish to make arrangements with the federal and/ or pro-
vincial governments to continue existing programs or services.
Certain principles behind the recommendation need further explanation. The Commit-
tee foresees that for matters coming within exclusive Indian First Nation jurisdiction, the
government concerned would have, under its constitution, all necessary powers to make laws
and set policy. Although an Indian First Nation government might adopt or adapt the laws
of another jurisdiction, the power to decide a course of action and change laws or policies
should be vested in the First Nation.
Within its areas of exclusive jurisdiction, an Indian First Nation government would
exercise powers over all people inside its territorial limits. Non-members moving onto Indian
First Nation land to live, do business or visit would be governed by Indian First Nation laws.
Their decisions to do business or live there would be influenced by the fairness of the laws
and their application and the availability of an appeal procedure.
Full control over lands and resources within its jurisdiction would mean that an Indian
First Nation government would have the rightto raise revenues for its own purposes. At
present, bands that are declared to have “reached an advanced stage of development” may
raise money by property and business taxes (Indian Act, s.83). Thus some bands have had
experience with the limited exercise of taxing powers. The Committee is proposing a much
broader right to tax under which Indian First Nations would be able to raise revenues for
their own purposes on the lands under their control and jurisdiction if they wished to do so.
Some Indian First Nations might choose to exercise this power as an optional method of sup-
plementing the fiscal arrangements, to encourage and regulate development and to ensure
the economic well-being of their communities. The Committee concludes that Indian First
Nations should have the right to raise revenues for Indian governmental purposes by taxing
individuals, transactions, land and resources within their territorial boundaries.
Accommodating Differences
The concept of full control by a First Nation government opens the possibility of very
different standards applying in geographical proximity. The primary method of accom-
modating all interests would be government-to-government negotiations. Both sides should
be aware of the importance of reaching some practical arrangement. In the long term it
would be in the interests of Indian First Nation governments and surrounding jurisdictions to
endeavour to reach agreement at least in matters of public health and safety.
Governments adjacent to First Nation jurisdictions may be concerned that Indian
developments will be incompatible with their own needs, for instance, in regard to zoning. It
must be remembered, however, that Indian jurisdictions may have the same concerns about
their neighbours. One witness told the Committee that his band had turned down a lucrative
deal to lease land for a chemical plant, on the grounds that such a plant would not be in the
best interests of all residents of the area. (Musqueam Band, Special 6:61) All such matters
should be worked out through negotiation and agreement by the parties concerned.
During the transition from provincial or federal jurisdiction to First Nation jurisdiction,
it is important that no vacuums of jurisdiction be allowed to develop. Until a First Nation
exercised jurisdiction in a given area, the status quo would prevail.
Self-government would mean the right to define or redefine our relationship with the rest
of Canada, which must be determined at the local level, rather than from the highest level
down. It means to expand our government’s jurisdiction and evolve traditional forms of
government into forms which would be capable of successfully interacting with other levels
of Canadian government, while preserving our autonomy, traditional culture, and world
view. (Kaska Dena Tribal Council, Special 21:13)
Joint control will be desirable where Indian First Nation and provincial or federal juris-
dictions overlap. A good example is resource management on lands to which First Nation
rights have been reaffirmed, but that are no longer considered to be lands reserved for Indi-
ans (that is, treaty areas or land claim areas). By exercising jurisdiction jointly with other
governments, First Nations would be able to protect and have access to traditional resources
they consider important. Provincial governments would have different priorities, and accom-
modations to ensure land use compatible with Indian rights would thus be needed.
[My] reserve… is four by four square miles, and theoretically there are certain laws
which exist within that community. There are treaty rights of hunting, trapping, gathering
and fishing, which are protected under that given geographical area of four by four square
miles. We are required to hunt and fish and gather wild rice and blueberries within that
tract of land.
Then you go outside of that reserve and then the Ontario fish regulations apply. The Boise
Cascade Corporation receives a licence and a permit to cut and remove the timbers sur-
rounding our land. In reality, then, when there is no forest and the rivers are polluted and
there is no way that one can practise the traditional economy, in that sense the economy
has been destroyed, because the forest is cleared away and in the middle you have a four
by four square mile tract of land, in which all the treaty guarantees are guaranteed to you
but beyond that, outside of that, how many moose, how many deer can travel across that
land from which your band members, say 500 people, can exist? It is just not possible.
(Rainy Lake Regional Tribal Chiefs, Special 1:30)
It is for reasons such as these that governments must be sensitive to one another’s rights and
jurisdiction. On their own lands, Indian First Nation governments would have the power to
regulate traditional pursuits such as hunting, fishing and trapping without outside interfer-
ence. On lands covered by treaties or aboriginal claims, such powers would be exercised
jointly with other governments.
Acceptance of the laws of Indian First Nations in Canada has been slow, given the
restrictive legal regime of the Indian Act, the judicial interpretation of the Act, of treaties
and of aboriginal rights, and governmental policy in these areas. It is not reasonable to
expect that each Indian First Nation government would be prepared to enact immediately a
complete set of complex laws covering all areas of jurisdiction. In a transitional phase, as
each First Nation’s jurisdiction expands and while First Nations develop a body of law, ele-
ments of the current non-Indian law will continue to apply in certain ways. During this
period co-operative efforts could ensure recognition in Canadian law of Indian values. This is
particularly important with respect to religious practices and traditions of family life and
child care. Eventually Indian law codes and courts would be put in place, andnew accommo-
dations would be required.
Law enforcement has significant effects on Indian First Nations and their citizens.
Several witnesses dealt with the need to develop policing arrangements that are sensitive to
traditional values and customs. Some suggested Indian officers who would work alongside
the RCMP. (Chiniquay Band, Written Submission, Sub 8) The Ontario Indian Police Asso-
ciation stressed the importance of Indian police and made detailed suggestions for establish-
ing such a system.
The full task of protecting the Indian public should be entrusted to the Indian people. Our
heritage has been built on a foundation of moral policy manifested in community laws
adapted to our particular needs. We should cultivate an Indian court system that would
strengthen these moral foundations by enforcing the Indian and the Canadian law for our
people. Proper Indian policing needs full support from such a court. (Special 15A:6)
Others did not see a need for a separate force:
We would rather see the approach taken whereby we expand on the present force, the
RCMP, and just cross-deputize their powers to police under Indian jurisdiction and enforce
Indian law when they are on Indian territory. When they are off Indian territory they can
continue the practice that they are most familiar with of enforcing provincial-federal law.
(Federation of Saskatchewan Indian Nations, Special 16:10)
These suggestions illustrate the need for varied, flexible arrangements across the country and
for agreements to ensure a workable sharing of power and responsibility.
We recognize the potential for conflicts of jurisdiction and the possibility of joint or over-
lapping jurisdiction in some matters. There is no one answer, no simple answer, to such
problems. However, once our jurisdiction is recognized and entrenched, once government-
to-government relationships are established, Indian governments can resolve these ques-
tions bilaterally with other jurisdictions involved, as is the Canadian tradition. (Dakota
Nation, Special 12:119)
Once jurisdictional arrangements are made between a recognized Indian First Nation
government and the federal or provincial government (or both), it is essential that the agree-
ment be a binding legal obligation. Even after reaching their landmark agreement with the
federal and Quebec governments, the James Bay Cree were faced with serious problems get-
ting governments to act and to provide funds. Moreover, there was no forum in which they
could seek to have the agreement enforced. The Committee urges the parties involved to take
steps to ensure that similar problems do not arise in relation to jurisdiction agreements. The
terms should be clear and funding secure. Disputes are bound to arise, however, so there
must be a workable and expeditious mechanism, acceptable to both sides, to enforce the
agreements.
In addition, agreements between Indian First Nations and the federal government
would be political settlements, not air-tight legal contracts. Existing courts are not set up to
interpret such agreements or to resolve disputes about their interpretation. Adversary proce-
dures might well be considered limiting and inappropriate. Thus, new tribunals would be
needed.
Chief David Ahenakew described some of the characteristics a tribunal would need in
order to ensure that disputes were resolved fairly:
. . .Decisions would be considered binding upon both parties. . . It would have available to
it other powers, such as mediation, conciliation, and arbitration. It would give equal
weight to the First Nations’ complaints of violations of rights and to Canadian interpreta-
tion of the limits of those rights. It would not leave First Nations totally vulnerable to hid-
den government opinions of what aboriginal rights are. (Special 9:8-9)
Although mediation or conciliation would be useful in attempting to resolve differences
of opinion about interpreting agreements of all descriptions—treaties, jurisdiction agree-
ments, service delivery contracts—there will be occasions where differences are not reconcil-
able and where an impartial third party must decide. This might be done through arbitration
or some other mutually agreed mechanism. The forum must be such that its decisions will be
acceptable to’aIl concerned.
22. The Committee recommends the establishment of a specialized tribunal to decide
disputes in relation to agreements between Indian First Nations and other governments. Its
structures, powers and procedures should be jointly decided by the federal government and
designated representatives of Indian First Nations.
Non-Members Living Away from Reserves
Implementation of the Committee’s report would dramatically improve the situation of
First Nations residents and their members living off reserves. These proposals for self-gov-
ernment of First Nations do not, however, address the serious problems of Indian people who
would not be associated with an Indian First Nation.
Although it is anticipated that First Nations’ membership would increase with the
removal of Indian Act restrictions, not all Indians will become members of Indian First
Nations. These non-members are and will remain ‘Indians’; they too suffer appalling social
conditions and discrimination, whether they live in cities—Regina, Winnipeg, Prince
George—or in remote regions of Canada. Their situation cannot be ignored. These people
should have rights to special federal programs. By virtue of the Constitution Act, 1867, the
federal government has jurisdiction for Indians, although federal laws and policies have con-
sistently been designed to deny this constitutional responsibility insofar as Indians living off
reserves are concerned.
The Committee has not had the opportunity to study the question in depth, but feels
strongly that it cannot be ignored. Indeed, urgent attention is required. It is for this reason
that the concept of a general list is important; it would be an acceptance of the fact of this
massive social problem and of combined federal and provincial responsibility to seek solu-
tions.
23. The Committee asserts that the continuing responsibilities of the federal govern-
ment toward Indian people, whether or not they become members of Indian First Nations,
must be recognized. The Committee urges federal, provincial and Indian First Nation gov-
ernments, along with representatives of Indian people who are not members of First
Nations, to work toward arrangements that respect the rights and aspirations of all Indian
people.
CHAPTER 6
THE ECONOMIC FOUNDATIONS
OF SELF-GOVERNMENT
Before the arrival of Europeans in Canada, and for many years after, Indian people
were self-sufficient. Indian nations had developed diverse economies based on hunting, trap-
ping, fishing, gathering, farming, crafts and commerce. An extensive trading system for
resources and finished goods was established throughout the Americas; it allowed one region
to supplement local products with surpluses produced in other regions. Indian nations used
treaties of peace and friendship as a principal means of defining economic relations among
themselves. The same device was later used to establish relations with colonial governments.
Since the time of contact with Europeans, Indian economies have changed continuously.
Concentration on meeting the demand for furs and other goods for European consumption
led to dependence on imported goods. Indian economies became more specialized and less
diverse. Settlement by Europeans further undermined Indian economics by eroding the land
base.
Thus, European settlement gradually disrupted established and complex Indian econo-
mies. The policy of the Royal Proclamation of 1763 was to limit further disruption by
restricting the activities of settlers. Only the Crown could obtain Indian lands and resources
through a treaty-making process. When treaties were negotiated, Indian nations sought to
obtain a new economic base in exchange for the land and resources they were relinquishing
for settlement. As a result, these treaties contained such economic provisions as the right to
pursue traditional activities like hunting, fishing, trapping and gathering on unoccupied tra-
ditional lands. In support of these traditional pursuits, twine was provided to make nets and
ammunition was supplied for hunting. In addition, livestock and other agricultural items
were promised to help Indian people adapt to a farming economy. Educational opportuni-
ties—the promise of a teacher and school house in some cases—were intended to contribute
to developing human resources.
The Indian right to economic self-determination was taken for granted by our forefathers
when they negotiated the treaties with the Crown. Much of the negotiators’ attention was
focused on arrangements by which they attempted to secure the economic future of their
people.
The spirit and intent of treaties. . .point to financial and technical support for the estab-
lishment of a strong, self-sufficient Indian economy. Fully half the negotiations conducted
by the Indian leadership dealt with this right. For instance, our treaties expressed the pro-
mise of equipment, expertise, and assistance required to maintain the traditional economy,
including hunting, fishing, and trapping activities; and of course to develop new economic
areas, such as agriculture, business resource development, and financial institutions. (Fed-
eration of Saskatchewan Indian Nations, Special 12:61)
The spirit and intent of treaty economic provisions have been forgotten over the years.
Indian witnesses suggested that the treaties should be revitalized by interpreting them
broadly to mean economic support in a contemporary context. This approach was reinforced
by a research study commissioned by the Committee, “The Economic Foundations of Indian
Self-Government” (see Appendix F). It called for flexibility and a spirit of generosity in the
fulfilment of treaty obligations.
The treaties were, after all, fundamental political, social and economic documents whose
provisions would have to fit unforeseen future circumstances. Their texts were never
intended to be strictly observed to the detriment of Indian nations and their economies.
They were to be living, humane documents—and the principle of generosity made them
humane and gave them life. (Economic Foundations Study, p. 33)
One source of economic support that Indian First Nations could turn to was the sale of
portions of the lands that had been set aside for their use. When parts of these lands, or the
resources from them, were sold, the proceeds were to be placed in government-administered
capital trust accounts. The interest from these accounts (and in some cases the capital itself)
was used to establish farms, for example, or to provide needed services. Until Confederation,
public funds were not required for Indians because they supported themselves. In fact, some
Indian nations remained self-supporting until the 1950s.
Over the years, however, the resources of Indian peoples have been dwindling. The real
value of the capital accounts has fallen as a result of government mismanagement, careless-
ness and, in some instances, corrupt actions.* Inflation has further diminished the value of
what moneys remained. At the same time, the needs and expectations of Indian people, along
with those of all Canadians, have been growing.
* Trust Study, p. 15. (See Chapter 9 and Appendix F.)
As a result of these developments, providing funds for Indian programs has gradually
become a permanent feature of the federal government’s expenditures. A pattern of eco-
nomic and political dependency has been created that requires greater expenditures each
year.
The historical fact is that Canadian society and economic interests have destroyed our tra-
ditional way of life and have deprived us of an economic base with which to determine our
future. We are viewed as failures by Canadian society because we do not conform to its
values and poverty has led to alcoholism and tragedy in the form of crime, infant mortal-
ity, and a lack of self-esteem by our people. It is Canada, and in particular the Depart-
ment of Indian and Northern Affairs, who have failed, by creating, and now perpetuating,
a dependency relationship which deprives us of our self-respect and by sabotaging our
efforts to create economic institutions for our people to utilize the natural resources on our
reserves or on Crown land adjacent to our reserves. (Heron Bay Indian Band, Special 4:8)
Obstacles to Development
The correction of these economic problems has been hindered by institutionalized
obstacles. For example, the aboriginal rights to hunt, fish, trap and gather were confirmed
by the Royal Proclamation and guaranteed by the treaties, but these rights have subse-
quently been restricted by laws such as the Migratory Birds Act and the Natural Resources
Transfer Agreements between the federal government and the provinces.
The Indian Act is another obstacle to economic development because, among its other
deficiencies, bands have no powers to control development. Moreover, bands or Indian-con-
trolled enterprises that incorporate are subject to tax because such entities are not considered
to be “Indians” within the definition in the Act.
Sections 87 and 90 of the Indian Act exempt Indians from certain federal and provincial
taxes. Two problems arise in relation to these provisions. First, if an Indian business oper-
ating on a reserve incorporates, it acquires a new, non-Indian, legal personality and
thereby becomes subject to federal and provincial taxation. Indian tax exemption for on-
reserve profits and income provides a valuable incentive for on-reserve economic develop-
ment but, as it stands now, incorporation would completly negate this asset. The DIA pro-
motes incorporation as a preferred vehicle for business operations. (Economic Foundations
Study, pp. 39-40)
Provincial laws may also apply to these corporations. Furthermore, Indian businesses have
difficulty raising funds because they cannot use Indian lands as security.
Witnesses asserted that government programs also hinder economic development:
One [obstacle] is the hesitancy of government personnel in all stages of a project, from
feasibility to implementation. They are hesitant for three reasons. First, they worry about
government funds. It could be a real fear that one day they would be dragged before some
of your committee members to be called to account fortheir actions. It is a real hesitancy
that leads to under-capitalization of projects and an inability to provide assistance in the
timely ways that business requires.
The second reason they hesitate is that they themselves lack the personal and business exp-
ertise necessary. It would be unreasonable to expect that a few people in the London dis-
trict [of DIAND] would have the expert knowledge necessary for projects ranging from
marinas and trailer parks to automobile factories.
The third reason is a lack of confidence in the capability of Indians. This is the more irra-
tional of their concerns. We have the ability. We have worked hard to develop institutions
such as the ARISE corporation in southwestern Ontario. Our record speaks for itself.
(Union of Ontario Indians, Special 15:85)
These witnesses also remarked that the multi-agency approach has not helped; each
agency imposes its own monitoring and accountability processes, leading to confusion and
delays. The Union of Nova Scotia Indians asserted that the DIAND economic development
fund “has become a lender of last resort, with higher interest rates than normal”, rather than
providing low rates to give Indian ventures a much-needed boost. (Special 25:18)
Moreover, DIAND funds budgeted for economic development are often diverted to other
purposes. The Coopers & Lybrand study (see Chapter 7) confirmed that when departmental
funds fall short in other areas, economic development funds are among the first to be real-
located. The findings of the economic foundations study were similar.
Witnesses were especially critical of the sizable sums spent on welfare, money they felt
could be better used to create employment:
In economic development we would like to see funding to the individual Indian nations at
the same level or more than we have been receiving in welfare. We receive $160,000 for
economic development for 15 bands in our district and we receive in welfare $4.2 million,
which is an increase [over] last year of about $1.2 million. (Cariboo Tribal Council, Spe-
cial 20:119-120)
Witnesses also pointed out that the serious infrastructure deficiencies that now predomi-
nate in most Indian communities severely inhibit economic development. As documented in
Chapter 2, a high proportion of Indian communities do not have adequate water supplies,
sewage systems, roads or housing. People cannot be expected to give priority to spending for
economic development ventures when their own living circumstances are totally inadequate.
Deficiencies in infrastructure also hinder development by discouraging investment.
Case Studies
The Committee’s research study on the economic foundations for self-government
guided the Committee in making recommendations aimed at eliminating these obstacles and
promoting the economic development of First Nations.
The study identified six areas that must be controlled by Indian governments: land and
resources, capital, labour, organization, planning and technology. This conclusion was based
on the researchers’ analysis of the experiences of seven Indian governments engaged in eco-
nomic initiatives.* All participants in these cases studies saw expansion of their land and
resource base as fundamental to future economic development and self-reliance. The settle-
ment of claims and the fulfilment of treaties must go hand in hand with control over other
factors such as capital, labour, organization and technology. Access to adequate and secure
funding is essential so that economic ventures are able to plan, expand and diversify.
* The subjects of the case studies were as follows: 1. Roseau River Indian Band and Long Plain Indian Band,
Dakota Ojibway Development Group Inc., Winnipeg, Manitoba; 2. SINCO Developments Ltd., Saskatoon.
Saskatchewan; 3. Sheshaht Indian Band, Nuu-Cha—Nulth Tribal Council, Port Alberni, B.C.; 4. Chippewas ol
Sarnia, Sarnia, Ontario; 5. Mattagami Indian Band, Gogama, Ontario, Grand Council Treaty 9, Timmins,
Ontario; 6. Nuhalk Nation, Bella Coola, B.C.; and 7. Seton Lake Indian Band, Seton Lake, B.C.
The case studies further revealed that job creation, on and off reserves, and the
enhancement of skills are priorities. Because of high rates of unemployment, Indian com-
munities attach more importance to job creation than to profit-making. Developing employ-
ment opportunities in their communities could enhance the survival of Indian First Nations
as distinct cultures by enabling more people to live and work in their communities and thus
participate more fully in all aspects of community life. In the past, migration from reserves
because of the absence of economic opportunities has contributed to a weakening of cultural
ties.
Those interviewed also felt that planning for economic development must be compre-
hensive, long-range and controlled by those whom it most affects. There was no consensus
about the best form of economic organization for Indian economic development. A mix of
band-controlled ventures, with opportunities for individual spin-off enterprises, seemed pref –
erable.
Currently, as in other program areas, real control rests with the Department of Indian
Affairs and Northern Development rather than with the communities involved:
Ultimate control over economic development programs and funding remains with the
Department. Community control, as used by the Department, means administration of DIA
economic programs at the local level. Control of the development process by Indian gov-
ernments is excluded from the DIA strategy. (Economic Foundations Study, p. 53)
The analysis of the seven case studies concluded that economic development succeeds
best when carried out at the community level. An examination of these economic develop-
ment ventures revealed the need for flexibility and diversity in the planning of structures.
Indian governments must be free to choose the types of organizational structures that best
serve their developmental needs. Some communities and their governments may decide
that community development corporations best serve their interests; others may opt for a
combination of band-owned and individually-owned enterprises. Still other communities
may find that none of these options is particularly appropriate for their needs. There will
be room for a great deal of innovative thinking on economic organization once major insti-
tutional obstacles are removed. (Economic Foundations Study, p. 125)
Indian First Nations must have control of resources as well as programs. Particularly
important are those resources needed for traditional economic pursuits:
What is at stake is control over and access to resources which are essential to Indians’ eco-
nomic, cultural and political development. In rural and remote regions especially, hunting,
fishing and trapping for subsistence and commercial purposes have been a traditional
foundation of Indian economies. . . .
The economic foundation of Indian self-government requires recognition of Indian hunt-
ing, fishing and trapping rights. This recognition is a prerequisite for Indian governments
to exercise effective control of this vital traditional resource. (Economic Foundations
Study, p. 45)
New Arrangements
Indian First Nations must have the power to plan and implement economic ventures at
the community level. Such initiatives may take many forms. Indian First Nations should be
free to set up economic development boards, corporations or agencies to use the funds
received to promote economic development. Some Indian bands and tribal councils have
already established development institutions. The Dakota Ojibway Development Group Inc.,
the economic arm of the Dakota Ojibway Tribal Council, began formal operations in Febru-
ary 1982.
In less than a year the DODG has undertaken feasibility studies and market analyses,
examining costs, competition and viability, and has presented its findings to the communi-
ties for further discussion. It has started or sustained 17 successful businesses ranging
from a cow-calf operation to a labour-intensive tackle manufacturing industry. It involves
a total investment of $1.32 million on DOTC reserves and has created 29 new jobs while
maintaining 22 existing ones. In 1983 another 11 planned projects will help to create 63
full-time jobs with a total funding of $3.637 million. The funding is secured from private
sector sources, as well as other established government programs. (Dakota Ojibway Tribal
Council, Special 2:19-20)
The economic ventures undertaken by some of the member bands of the Dakota Ojibway
Tribal Council range from the manufacture of compound bows to the production of com-
puter chips. (Special 2:46)
The economic foundations study described several principles that should guide the
establishment of new arrangements:
From a development perspective, the exercise of effective control by Indian nations, peo-
ples or communities over the resources and institutions that directly affect their lives
means control over a resource base sufficient to meet material needs and political control
over the development process itself at the local level. In short, the economic foundation for
Indian self-government is a viable economic base, the resources of which are developed
under Indian control at the community level. (Economic Foundations Study, p. 117)
24. A new relationship between Indian First Nations and the federal government should
ultimately result in the provision of an adequate land and resource base and the settlement
of claims. Prospects for economic development would improve if the land base were
expanded, claims were settled, and the control of resources on Indian lands were transferred
to Indian First Nations. These actions would help to build the foundations for economic
development, but they will take considerable time to accomplish.
25. It is essential that Indian First Nations be able to get on with the task of economic
development without delay.
26. The Committee considers control of a strong economic base to be essential for the
effective exercise of Indian self-government. In planning for development of the economic
base, the people of an Indian First Nation should be able to set goals, define strategies and
then act to realize their potential. To do this they will require substantial funding.
27. The Committee recommends that, in determining the fiscal arrangements with
Indian First Nations (discussed in Chapter 7), sufficient funds be included to enable Indian
First Nations to correct any serious deficiencies in community infrastructure and to begin
economic development.
A Special Development Bank
It is necessary to develop innovative financing methods that would protect the Indian
First Nations’ land base and at the same time permit their businesses to raise capital. It is
important that all available federal resources be used to further these objectives.
At present, the most significant block of funding that could be brought to bear on
improving the economic situation of Indian First Nations is the $345 million Native Eco-
nomic Development Fund. The Committee realizes that the Fund is intended for Métis, Inuit
and non-status Indians, as well as for Indian First Nations. Since it is still in the formative
stage, it would be possible for the federal government to commit the Fund to economic
development efforts that would foster Indian self-government as well as the economic goals
of other native peoples. Indeed, failure to do so could mean that the Fund would operate at
cross-purposes with Indian governments. For instance, off-reserve economic initiatives could
worsen the gap between reserve and off-reserve economies and weaken Indian communities.
As well, a large development established for profit might overshadow programs initiated by a
small Indian government.
The Committee proposes that the most prudent use of the $345 million Fund would be
to capitalize a bank—under Schedule B of the Bank Act—with restricted share ownership
well as other interests, could be represented on the board of such a bank, the native peoples
groups involved would control the venture.
28. If representatives of the national aboriginal organizations agree to use the $345 mil-
lion Native Economic Development Fund to found a special development bank, the Commit-
tee recommends that the federal government commit the Fund as the bank’s initial capitali-
zation.
Given the amount of economic development necessary to assist Indian First Nations to
reach a satisfactory standard of development, additional capitalization should be sought
from all sources, including Indian and non-Indian investors, unions, churches and private
investors. The federal government should provide incentives to investment by granting spe-
cial tax treatment to bonds issued by the bank. Its loans should also be backed by federal
guarantees.
The Committee also emphasizes that capitalization of this bank must not be the federal
government’s sole contribution to” the economic development of Indian First Nations. The
bank would not be in a position to make forgiveable or interest-free loans or to provide eco-
nomic development grants that would not be repayable. The Committee expects that funds
for this type of economic development assistance would be available to Indian First Nations
through the fiscal arrangements recommended in Chapter 7.
Special economic incentives could also be provided to Indian First Nations. Witnesses
suggested that these could include tax incentives for investors, special bonds or tax-free
zones.
We would strongly recommend that reserves like Cole Harbour be given priority in the
establishment of free trade zones. . . .It is our right to obtain things tax-free and at the
same time barter for them or sell them at a cost advantage within our country. (Millbrook
Band, Special 24:36, 43)
The Jay Treaty also has economic implications. This treaty between Great Britain and
the United States confirms the right of North American Indians to cross the border with
normal goods and “freely carry on trade and commerce with each other”. Canada has never
passed legislation to make these provisions of the treaty part of Canadian law. In addition to
the economic benefits of the Jay Treaty, the right to free passage is important for cultural
reasons.
Failure to recognize the Jay Treaty has interfered with Indian people crossing the bor-
der with items for ceremonial or religious purposes. On the West Coast, for example, where
members of an Indian First Nation may live on both sides of the international border, wit-
nesses described how they were stopped from bringing goods across the border for Potlatch
ceremonies. An elder, Bobby Woods, wrote to the Committee about the right to cross bor-
ders feely for religious purposes:
Many tribes bordering Canada and Mexico from the United States have been split by
international boundaries, and historically been involved in border disputes with the Immi-
gration and Customs departments. Natives cross to attend ceremonies and visit ancient
Tribal sites. Medicine bundles and other religious materials prepared and sealed by Medi-
cine men and worn for health, protection and purity reasons have sometimes been searched
and even confiscated by customs officials. Both actions render religious materials unclean
and useless to their owners according to their religious beliefs. (Written Submission, Spe-
cial 12A:2)
29. The Committee recommends that the federal government introduce legislation to
implement the Jay Treaty.
CHAPTER 7
FISCAL ARRANGEMENTS
If Indian First Nations are to govern their own affairs, a financial underpinning that is
in harmony with and reinforces this objective must exist. Present funding arrangements
effectively deny Indian band councils and tribal councils control of the programs they
administer; they exclude Indian people from policy-making; they place impossible accounta-
bility burdens on band councils that have assumed responsibility for administering programs;
and they generate an excessive federal administrative and monitoring superstructure. In
short, they inhibit the development of Indian self-government. The Committee is convinced
that the federal government, in establishing a new relationship with Indian governments,
must take a radically different approach to its fiscal arrangements with them.
In view of the obviously central importance of federal fiscal arrangements to Indian
self-government, the Committee commissioned a study, “Federal Expenditures and Mech-
anisms for their Transfer to Indians”, by the national accounting firm, Coopers & Lybrand
(see Appendix F).
Evolution of the Present System
Indian First Nations used to be self-sufficient, but European settlement destroyed the
economies they had developed. Increased federal spending has been required as Indian peo-
ple became increasingly dependent on government money for their basic needs. An addi-
tional factor has been the major growth in the social service role of government in Canada.
Initially, the Department of Indian Affairs and Northern Development delivered these ser-
vices. Later, as part of a policy to integrate Indian people, administrative responsibility for
some services was shifted to provincial governments, which were usually reimbursed for the
costs involved. In a further move, the federal government decided in 1968 to encourage the
transfer of the administration of certain services and programs to band councils. This was
followed in 1974 by the provision of core funding to band councils to cover management and
administration. In the process, the Department of Indian Affairs and Northern Development
shifted its focus from delivering services to advising and monitoring the performance of band
councils and their staffs.
Federal expenditures in general have increased enormously since governments assumed
extensive responsibility for providing social services to all citizens. To control this situation,
the federal government has developed extremely complex planning, budgeting, reporting and
financial control systems. As some Indian bands are nowpart of the delivery process (for
example, approximately half the social services available on Indian reserves are administered
by band councils), and are financed for this purpose by DIAND, comprehensive accountabil-
ity is required of them—requirements not needed for their own local governmental purposes.
These onerous accountability obligations are rationalized by a conviction that Indian people
lack the capacity to administer their own affairs and are the natural response of a bureauc-
racy anxious to retain control of its programs. They are also rationalized on the basis of criti-
cisms from the Auditor General about the inadequacies of financial controls.
Under the complex management and accountability regime imposed by DIAND, band
councils are expected to provide the Department with a detailed accounting of all the activi-
ties they administer. This situation led Coopers & Lybrand to comment:
Just as control of the purse was fundamental to the evolution of our own parliamentary
system of government, it is also fundamental to the survival and growth of government
bureaucracies. Thus, Indian self-government comes into conflict with bureaucratic pro-
cesses, and it is not surprising that real decision-making power, which depends on having
unrestricted funding, has not been transferred to Indian bands and councils. (Summary
Report, p. 18)
We found that departmental managers did not have a common interpretation of what the
Department’s role was. The absence of unanimity was most evident in the stance that
managers believed the Department should take regarding the demands of native people.
For example, managers posed the following questions: Is the role of the Department one of
prescription, where resources are allocated according to priorities interpreted by the
Department, or is it one of support, where the allocation is based on priorities determined
by native people? Is it some of each and should the mix vary from one native group to
another? Is the Department accountable for producing social and economic gains for the
native people, or is it responsible simply for ensuring an equitable distribution of financial
support as native groups pursue their own objectives? Responses to these kinds of ques-
tions would have implications for accountability and control within the Department.
In documents approved by Parliament, published by the Department or prepared for inter-
nal planning purposes, we found no clear statements of the socio-economic effects or finan-
cial distribution results [that] departmental programs or managers were expected to
achieve in relation to native groups. We therefore concluded that the direction given to the
Department concerning its relationship with native people was not sufficiently clear to
identify what DIAND should be accountable for in relation to its mandate. We also found
little evidence to indicate that the Department had tried to clarify its accountability to
Parliament by making assumptions in regard to its mandate, developing corresponding
objectives and seeking approval for them. (Report of the Auditor General of Canada to
the House of Commons for the fiscal year ended 31 March 1980, p. 171)
Deficiencies of Present Arrangements
Indian witnesses provided eloquent testimony regarding the deficiencies of the present
funding arrangements. Devolving responsibility to Indian bands to administer services has
generated extensive negotiations each year:
In effect, we are caught up in a process which requires us to negotiate annually, on a line-
by-line basis every significant individual item in our operating budget. This is a protracted
and frustrating activity which absorbs great chunks of staff time and energy. (Blackfoot
Band, Sub 8:90)
The effort involved causes resentment because Indian people have found no evidence that the
policy of devolution has had any long-term purpose benefiting Indians. In fact, negotiations
often end by the Department of Indian Affairs and Northern Development making unilat-
eral decisions.
A long-range plan for the orderly and co—ordinated transfer of programs in terms of the
Department to the bands was not in place. The Department of Indian Affairs did not make
estimates of the cost to implement their policy, a policy that was publicly announced many
times for several years. There were no criteria to carry out the policy. Can this be indica-
tive of the Department of Indian Affairs sincerely regarding the implementation of its
policy of devolution? (Association of Tribal Councils of Manitoba, Special 2:83-84)
Although in theory a policy of transferring responsibility for administering programs
might be expected to improve the delivery of services, the funding arrangements have often
had the opposite effect. Even though the process of forecasting budgets begins three years in
advance within the Department of Indian Affairs and Northern Development, bands noted
that they often did not know how much money they would receive until months after the
beginning of the fiscal year. One group told how its funds were held up in Ottawa from April
1 until November 5, 1982:
I want to emphasize that the delay was not the result of any disagreement over our
requests. It was merely a processing delay. This standard approval took over eight months
to obtain. For such delays to be allowed to happen is scandalous. (Blackfoot Band, Sub
8:89)
This kind of situation forces bands to borrow to cover operating expenses; in the process they
incur heavy and unnecessary interest charges for which they are not reimbursed:
It has been estimated in our area that the bank interest charges incurred by this cumber-
some reimbursement exceed $80,000 a year. (Carrier-Sekani Tribal Council, Special
20:29)
Equally frustrating is the fact that attempts at forward planning often lead nowhere:
We spend hours in meeting after meeting planning the [DIAND] five-year plan. After a
year or two, DIA comes back to us and tells us that the five-year plan is out, they have no
dollars for it. It is the frustration and the instability of DIA planning that we suffer
through. (Kitamaat Village Council, Special 7:82)
A matter of particular concern to witnesses was the cost of the administrative structure,
in terms of the bureaucracy in the Department of Indian Affairs and Northern Development
as well as at the individual band level. In their view, these represented excessive unproductive
expenditures:
But I also carry a concern about those dollars that Indians never see; those dollars that go
to support a bureaucracy that does not seem to be achieving success; a bureaucracy that
gobbles up in excess of 30 per cent of dollars allocated to Indians across Canada. (Chris-
tian Island Reserve, Special 15:69)
Another witness focused on the burden placed on bands by the new system:
. . .the problem we have now is that the way the system is set up, we have to report to
many different levels of government. A lot of paperwork is involved, and we do not think
that is necessary at all. (North Coast Tribal Council, Special 7:17)
Still another witness objected to the fact that Indian bands were expected to provide ser-
vices similar to those the Department provided, but with smaller staffs and no administrative
funding. Witnesses also noted that although the departmental budget might increase by a
certain percentage, the budget of bands did not increase at the same rate. Moreover, band
councils were not in a financial position to match the salaries and benefits paid to depart-
mental employees, making it difficult for them to recruit and retain competent staff.
They [the Nuu-chah-nulth Tribal Council] found out the number of man-years the
Department had been exercising, previous to their takeover, was a considerably larger
number than what they actually were given; and it was almost two to one. In fact, when
they took over, they found they were operating at a budget of something like 43 per cent of
what the Department of Indian Affairs was operating at, previously, to provide the same
services. (Native Council of Canada, Sub 7:10)
Apart from the cost, witnesses were critical of the stultifying effect on band morale.
DIA has developed a network of paper-shuffling and checkpoints within its bureaucracy
that is so painstaking and complicated that it undermines all band initiative and
enthusiasm. (Chiniquay Band, Written Submission)
Moreover, strong feelings were expressed that the controls were more onerous than gov-
ernment financial regulations required.
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 controls over, for
instance, the productivity and work performances of departmental bureaucrats. But at the
reserve and tribal council levels, the increase in controls is real. The Department has uni-
laterally built into its contribution agreements, for instance, a degree of control that
exceeds by far that required by Treasury Board. (Joint Council of Chiefs and the All
Chiefs’ Budget Committee of the Assembly of Manitoba Chiefs, Special 3:51)
A witness suggested that “in order to satisfy their own uneasiness about their own con-
stituencies, they infict upon us reporting requirements far greater than they would wish for
themselves.” (Blackfoot Band, Sub 8:81)
Funds are now provided through complex ‘contribution agreements’, which impose
extensive conditions. Several witnesses took the strongest exception to such agreements as a
form of funding:
. . .Indian governments should be allowed to establish their own priorities and guidelines.
If I may use an example here. . .an Indian band in northeastern Alberta took over the
social development program. They were told to undertake that program according to the
guidelines as established by the Department of Indian Affairs in consultation with the pro-
vincial government.
The Indian people of that reserve, instead of wanting welfare per se, wanted employment.
When that particular band council undertook that particular program, they established
their own guidelines based on their own priorities. They made people go to work. For
instance, if an individual was entitled to $100 worth of welfare a month, the people asked
they be put to work; and the council, in the wisdowm of that particular band, put the people
to work on community improvement projects . . .
The implications here are far-reaching. They extended even to the children themselves.
When the children saw their parents going to work on the project, the attendance rate of
those children in school increased dramatically. . .This went on for quite some time until
someone in the hierarchy of the Department told that band they could not make people
work for welfare. (Indian Association of Alberta, SUb 11:105-106)
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 govern-
ment 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 dis-
criminatory manner. As the principal instrument in the Department’s devolution policy,
their terms are a matter of grave concern to us. (Joint Council of Chiefs and All Chiefs’
Budget Committee of the Assembly of Manitoba Chiefs, Special 3:52)
A specific complaint was a provision making it impossible to carry over a surplus into a sub-
sequent year.
. . .If a band were to practise a very conservative program for the year and create a sur-
plus, the Department would merely move that resource to the following year, keeping that
particular program static, thus eliminating incentive for the band to save money for other
programs. (Christian Island Reserve, Special 15:65)
This practice is the more objectionable, it was asserted, because deficits are carried forward
and must be repaid.
Another concern was that excessive emphasis had been placed on welfare services rather
than on development.
Existing arrangements lock our people into a permanent welfare system which cannot pro-
duce any positive solutions. Controversies will continue endlessly unless basic changes are
made in the financial arrangements which directly affect our communities. (Bella Coola
District Council, Speacial 6:83)
Witnesses argued strongly for a more flexible arrangement that would free them to focus on
economic development:
The social development programs. . . in fact are anti-social development, in our estimation.
It is the only budget we have that is open-ended. . . Our desire is to take these kinds of pro-
grams and use them to develop housing programs and for overall development, to be
relieved of the restrictions after the broad objectives have been stated. (Kitamaat Village
Council, Special 7:69)
Similar objections were raised to the fact that in times of budget restraint DIAND tended
to make cuts in funds for economic development and for band government, while not reduc-
ing its own administrative budget. One witness commented:
Funding in the past has been inadequate. But the problem has only been worsening. Fund-
ing for management support services for tribal councils is listed under “all other services”
and is severely reduced—sometimes by 50 per cent every year. The conversion of capital
funds is not an acceptable alternative. . . (Southeast Resource Development Council, Spe-
cial 2:11)
More generally, the Committee was told:
. . .that non-discretionary—protected—funds suddenly become discretionary—unpro-
tected—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. (Peguis Indian Band, Special 3:117)
A strongly held suspicion that the Department uses its control of funding to promote
hidden objectives surfaced more than once:
It has long been my contention that the Department of Indian Affairs uses two standards
for funding bands in order to promote their political objectives and philosophies at the
reserve level. (Union of British Columbia Indian Chiefs, Special 6:10)
Another witness put his concerns more bluntly:
Under the present system now, political blackmail can be practised. . . the Department of
Indian Affairs, since it controls the funding, can also control the elections of the band. . .
So if [someone] is strongly opposed to the implementation of user fees or the J circulars,
[the Department], by withholding funds to the band, would see that [he] would not be
around after the next election because the band membership would say, well, we do not
have any capital housing this year under your administration. (Chippewas of the Thames,
Special 15:83-84)
In more general terms, the Department’s control of funding was seen as having a
damaging effect on relations between Indian peoples and the Canadian government.
There now exists a large, costly, inefficient bureaucracy that delivers Indian services and
programs. The Indian Affairs Department competes with our governments for authority,
and inevitably maintains the colonial character of our relationship with the Canadian gov-
ernment. (Bella Coola District Council, Special 6:83)
Devolving responsibility to Indian bands for the delivery of services, while retaining
departmental control of policy through control of funding, has frustrated the declared pur-
pose of devolution—namely, strengthening the capacity of Indian peoples to run their own
affairs. One witness complained that “band councils are just fancy cheque-writers for the
federal government”. (Rainy Lake Regional Tribal Chiefs, Special 1:37) Another com-
mented more generally:
. . .easily 75 per cent of the time and energy of our band government is spent satisfying the
record-keeping, data analysis, reporting, forecasting and evaluation requirements estab-
lished by the many agencies of government which regulate our lives. Indeed, the very
structure of our government is determined by the need to comply with these tasks. And
because of the increasing emphasis of the past 2 to 3 years, on accountability to central
agencies, the proportion of our energies going to satisfy bureaucratic processes has grown
dramatically. This at a time when DIAND talks of “devolution”. Indeed, along with most
other governments in this country, we are more truly a branch office of the Indian Affairs
department than we are a tribal government. . . . (Blackfoot Band, Sub 8:80)
The conclusion expressed by a third witness was particularly frank and disturbing:
It should appear self-evident that without Indian people having ultimate control over
finances, the exercise of self-government is impossible. Economic development becomes
irrelevant, if not impossible. [The current system] is demeaning, irrelevant, and counter-
productive in terms of nurturing mutual respect. (Grand Council of Treaty No. 3, Special
1:95)
The result of this situation is unfortunate. Indian leadership feel they have taken over a
lot of administrative work and problems formerly borne by the Department without being
properly compensated, without being given any discretion or control, and without resultant
savings in departmental administrative costs.
Departmental personnel, on the other hand, feel that program devolution requires the
Department to take on even more staff and put in place systems to cope with what they view
as Indian administrative inadequacies. A briefing book on band government prepared by the
Department claimed that “costs of the programs themselves were found to increase from 20
per cent to 30 per cent when programs were transferred to Indian management”. It went
onto claim that “many bands have not developed the management capacity required to par-
ticipate in the devolution process”. (p. 23)
Conclusions of the Research Report
Because of this disturbing testimony, Coopers & Lybrand were directed to look at how
the current service delivery systems operate and are funded, to assess what proportion of
funds spent are absorbed in administration and what proportion directly benefit Indian peo-
ple, to examine the accountability requirements and consider their effects, and to make pro-
posals regarding alternative funding arrangements. They were asked not only to look at the
Department of Indian Affairs and Northern Development, but also to use two tribal councils
as case studies.
The study, running to several hundred pages, documents and substantiates most of the
criticisms expressed by witnesses. As the Coopers & Lybrands conclusions are so cogent, and
reflect so closely the Committee’s own assessment, the Committee decided to reproduce
them here in extenso.
Transfer of Administrative Responsibility
The chapter of the Coopers & Lybrand report dealing with the transfer of administra-
tive responsibility describes current administrative processes in some detail and reviews
information collected from the Central Interior Tribal Councils (CITC) of British Columbia
and the United Chiefs and Councils of Manitoulin (UCCM). CITC was selected as a case
study of tribal councils that have been given responsibility for delivering a number of services
previously administered by the Department. UCCM provided an example of a tribal council
that delivers fewer services. The conclusions of this chapter read as follows:
The description of administrative processes clearly shows a duplication of administrative
structures within DIAND and between DIAND and Indian bands and councils. The case
studies show how person-years and dollars have been absorbed in monitoring and adminis-
trative processes and in other purposes. These case studies and the Department’s own
assessments show that Indian bands incur equal, if not greater costs, when they take over
administrative duties from the Department, while at the same time the Department has
added to its costs by taking on advisory and monitoring roles. The band administrative
structures may cost more, but Indian involvement in the processes seems to increase their
effectiveness according to almost everyone that we interviewed. In addition, the contribu-
tion made by providing effective and satisfying employment to Indians with advanced edu-
cation should not be overlooked.
Based on our examination of the roles and responsibilities of each of the levels within
DIAND and of the bands administering programs in the British Columbia and Ontario
regions, a number of conclusions can be reached with respect to the effects of the transfer
process on both Indian self-government and the costs of administration. These are:
Underlying objectives of transfer process:
DIAND staff do not believe that they have an adequate plan to complete the transfer
process. . .
The process of transfer to date has been essentially a delegation of DIAND administrative
responsibilities to bands and tribal councils. There has been no real shift in decision-making
responsibilities. . . and almost complete control still lies with the Department.
Changes in administrative costs:
Staff reductions at the regional level have been inhibited by the additional burdens, program
enrichment, and new thrusts imposed on them from headquarters and central agencies. . .
. . .significant duplication takes place within DIAND and between DIAND and the bands.
Limitations on signing authorities cause excessive case load back up through the system. . .
The costs of responding to central agency criticisms of the lack of an adequate accountability
framework have created an internal shift of resources away from programs and into financial
control and management improvement projects, as well as increasing the administrative bur-
den on program staff.
DIAND’S difficulties in coping with change:
The process of transfer has created a role change for DIAN D personnel from service delivery
to advising and monitoring. . .
Combining monitoring and advising roles in the same field staff is not working well because
the two roles are basically in conflict with each other. Staff cannot be expected to inspire
trust and confidence as advisers to bands when they also are monitoring band
performance. . . .
Indian band administrative capabilities:
Bands that are now successfully administering their programs have gone through rough times
but have succeeded more often because of their own leadership and staffing than because of
the training, advice and monitoring of the Department.
Many bands have had problems .in assuming programming and administrative responsibili-
ties. . . but present practices of having the same people who were supposed to train, advise and
monitor them take over in these situations is unacceptable to the bands and likely also to be
ineffective given that they did not succeed in preventing the problem occurring and may actu-
ally have contributed to it.
DIAND is an adminstrative machine, not a people-development mechanism.
Many of the services being delivered could be provided and are being better provided by a
band’s own advisers than by DIAND staff. (Section 3 & 4, pp. 78-81)
Coopers & Lybrand also cited a study by the British Columbia region of DIAND survey-
ing Indian perspectives on current problems. The survey found that:
administrative processes and how they are conducted cause most of the problems between
DIAND and the Indian bands;
DIAND is not keeping up with the administrative progress of many bands; and
DIAND underestimates and under-utilizes the emerging cadre of Indian managers.
The Coopers & Lybrand study drew the following conclusion:
In summary, the present relationship between DIAND and Indian governments is not satis-
factory. If Indian governments are to be allowed to govern the affairs of their people, then
administrative and funding relationships with the federal government must recognize this
in the same way that it is recognized with provinces. Indian people should be allowed to
help define the roles to be played by the federal government in fostering the development
of Indian self-government. (Section 3 & 4, p. 82)
Administrative Costs
Coopers & Lybrand were asked to calculate the proportion of funds that were expended
on departmental administration and that did not therefore reach Indian people. They con-
centrated on the Indian and Inuit Affairs Program, which accounts for most of the Depart-
ment’s expenditures. They -concluded that one-quarter of the funds expended in 1981-82 on
this program, or about $250,000,000, went to administer it. A further $39,102,000 was spent
on general departmental administration. In their opinion, administrative costs accordingly
amounted to more than 25 per cent of total expenditures. The actual percentage would be
even higher if the heavy costs incurred directly by bands to meet the Department’s adminis-
trative demands were included. Coopers & Lybrand commented that the administrative
costs of Indian bands need not exceed those of other small organizations or businesses. At
present the requirements imposed on Indian bands result in far greater costs.
Size of Departmental Staff
Of special interest to the Committee was the effect on the size of the Department of the
transfer of administrative responsibility to bands. A study commissioned by the Department
showed that such transfers increase the cost of providing goods and services to Indian people
by between 20 and 30 per cent. Two-thirds of this cost increase was caused by increased
administrative costs, mainly due to the Department’s expanded advisory and monitoring
functions. One-third of the increase in costs resulted from demands for better facilities, pro-
gram enrichment and lost economies of scale. For example, Indian-controlled education has
encouraged Indian children to remain longer in school, resulting in higher costs.
Government officials told the Committee that these increased costs were the unavoid-
able consequence of a policy of devolution. The implication of this approach is that as more
service delivery is transferred to bands, administrative costs will increase, thereby reducing
the funds available for the direct benefit of Indian people.
The Coopers & Lybrand study confirmed the accuracy of this analysis, but drew atten-
tion to the possibility of reversing this trend by dispensing with the Department’s advisory
and monitoring services which, as they noted dryly, “are little appreciated by the Indians”.
(Section 3 & 4, p. 51) In the British Columbia region, they reported, the total number of
departmental staff had been reduced after administrative responsibility was transferred to
Indian bands, but 100 people responsible for band and local government had been added.
Their conclusion was that “a further reduction in staff is not likely to occur unless the fed-
eral government changes its approach to devolving reponsibilities to Indians”. (Section 3 & 1
4, p. 50) At the same time they noted that Indian bands that had taken on these new repon-
sibilities had increased their staffs by approximately the same number.
Costs of Present Accountability Processes
In addition to these administrative, advisory and monitoring costs, there is the cost of
accountability. The Committee directed Coopers & Lybrand to pay special attention to the
cost and utility of the complex accountability systems set up by the Department for plan-
ning, budgeting and disbursing funds from Treasury Board to DIAND headquarters, from
headquarters to the regions, from regions to districts, and from districts to bands–with
accountability flowing back by the same route. A massive system controls this process.
Moneys for Indian bands appear in the departmental estimates under separate activities. The
Department is expected to demonstrate that funds allocated to an activity are actually spent
on that activity. This results in an unnecessary mountain of paper work.
The documentation appropriate to ensuring accountability between Indian governments
and their people could be produced on a single page. Now, when the documentation required
by the Department reaches headquarters, it is volumes in size, and so complex that depart-
mental officials say they do not have time to involve bands in the process of preparing budg-
ets. There is little discussion with Indian people as to why funds are being spent and whether
funds could be better spent.
The Coopers & Lybrand report described the current systems in considerable detail,
both to explain why they had been established and to suggest that this level of complexity
was totally unnecessary for Indian government.
We have covered the accountability process from cradle to grave, not just the costs of post
facto accounting to Parliament, because it is the government’s planning and budgeting
approach that is creating most of the increased costs of obtaining accountability informa-
tion.
. . .It is worth noting that small organizations like Indian bands do not need these complex
and costly procedures. In fact, it is surprising how little they are involved in the Depart-
ment’s own processes. Government processes are largely a product of size. Where provid-
ers and recipients of government services have direct accountability relationships as they
do in the case of Indian bands, Simpler processes become possible. Therefore, the solution
to significantly lowering the cost of present accountability processes is to isolate such fund-
ing from federal departments delivering services so that simplified accountability arrange-
ments become feasible, particularly if unconditional funding. . .is introduced. (Section 5,
pp. 41-42)
The report proceeded to draw a number of conclusions with regard to the present
accountability procedures:
The emphasis on activity elements and variables in the new planning and budgeting pro-
cesses is at cross purposes with the transition to Indian self-government. The budgetary
processes of the government of Canada are designed to provide a national explanation of
the ordering of spending priorities by focusing on program objectives, alternative activities
or means to attain them, cost/benefit analyses, workload ‘ndicators to justify resource
requirements, cost accounting and analysis, and value-for-money auditing and program
evaluation to assess retrospectively what has been achieved. Small governments can substi-
tute more inductive processes for these complex and expensive deductive approaches.
The Department is giving relatively little attention to the controls imposed by Parliament
through the vote structure, and Treasury Board through allotments, but program manag-
ers are increasingly tying strings on ‘their’ funds. The budgetary processes, allotments,
management regime, contribution agreements, monitoring, reporting and auditing pro-
cesses are all designed to reinforce the ownership of program managers, at the expense of
giving regional directors—general, district directors and other general managers flexibility
in satisfying band needs. Although nominally decentralized, the true test of any decentrali-
zation is the amount of decision-making authority given to field managers. Steps being
taken by the Department to tie strings on its funding not only reduce the Department’s
ability to respond to Indian band needs, but also increase the cost of such processes. Fur-
thermore, the Department usually permits surpluses to be transferred to cover deficits, so
the sub-division only increases accounting complexities and creates uncertainty and fric-
tion without any apparent benefit. . . .
Thus, in summary, we question whether the elaborate planning, budgeting, resource allo-
cation, contribution agreement, reporting, monitoring and auditing processes are effective
and therefore necessary. If simplified funding arrangements can be introduced, these costs
can be significantly reduced. (Section 5, pp. 43-46)
Effects of Accountability Processes on Bands
At the Committee’s request, Coopers’ & Lybrand also examined the effect of accounta-
bility requirements at the band and tribal council level. After describing the various proce-
dures that bands are called upon to comply with, the report offered the following comments
by way of conclusion:
The Department is constantly changing coding and the format of forms to be filled out by
the band. This introduces inconsistency in the format of financial information (which also
introduces audit complexity) and results in band staff having to constantly learn new
approaches.
The requirement of fund accounting introduces complexity in daily bookkeeping. More
knowledge is required to account for inter-fund transfers and more detailed ledgers must
be maintained to account for each fund.
Neither departmental personnel nor Indian bands are satisfied that equity is being ren-
dered under present processes. All assume others are treated more favourably and, there-
fore, it sufficiently sophiscated, are willing to take steps to beat the system;
A large portion of DIAND funding is either formula-determined or fixed in advance, so
these elaborate resourcing and funding arrangements, which may be appropriate for eco-
nomic development and band infrastructure requirements where managers have some flex-
ibility, are being applied unneceessarily to the full range of departmental funding require-
ments;
Despite the long timespan preceding estimates submission to Parliament, consultation with
Indian bands is generally inadequate. It is as if Treasury Board produced the estimates
without consulting departments. While it is stated that this is because they do not want to
raise Indian band expectations for funding that cannot be delivered, the bands feel that
their true needs are not being communicated to Treasury Board and Parliament;
Capital planning processes provide for much greater involvements of Indians in the process,
but this is the area where DIAND managers have greatest flexibility and the area that is
treated as residual;
It would be wrong to accuse Parliament of causing most of the present accountability cost.
Both parliamentary and governmental controls are secondary to those the Department
imposes for its own purposes.
The program or activity orientation leads to duplication between districts, regions and
headquarters, results in a multiplicity of forms and procedures and slows down the whole
administrative process;
Signing authorities undermine the ability of districts and regions to deal with bands and
they obscure accountability;
Despite the long timespain involved, many Indian bands did not know the amount of their
funding until after the new fiscal year had commenced, hardly a process that encourages
either their solvency or accountability;
Despite this costly monitoring process, DIAND is hesistant to intervene until a band actually
becomes insolvent;
There is a fundamental conflict between the monitoring and advisory roles of DIAND
employees, and some Indian suspect they have a self-interest to see band local govern-
ment fail;
Expenditure reports are often inaccurate and expenditures can be manipulated if necessary
to conceal diversion of funds from one purpose to another. Financial transactions coded as
to purpose are difficult to check or audit because often only the manager authorizing the
expenditure really knows its purpose. This is why Treasury Board rarely uses the activity
classification for purposes of imposing allotment controls;
Auditors have great difficulty in assuring the Department that funds are spent for the pur-
poses approved. This is partly because of the difficulty of auditing such transactions, but it
is also because they are uncertain about their responsibility to the Department. (Coopers
& Lybrand Study, p. 48)
While reporting is required to be on a quarterly basis, for funding purposes bands often
have to report on a monthly basis. Quarterly reports are probably adequate for internal
purposes.
Some bands expressed concern that filling out statistical reports with information on case
loads, claims processed, etc., required too much of their staffs time, detracting from their
primary duties.
Most of the bands visited relied more on their auditors for advice and assistance than on
the Department’s band financial advisers, who provided only limited assistance, or were
avoided because of their monitoring role.
Delays in getting contribution arrangements in place and receiving advances resulted in
bands entering an overdraft position with their bank. This represented not only an interest
cost, but a loss of credibility with the bank.
The present method of funding and the Department’s disposition of surpluses and deficits
introduces uncertainty at the band level with respect to budgeting and year-end position.
In general, the bands adequately recognize the need for financial reporting and informa-
tion, and the need for retaining competent staff and providing training to them. The more
sophisticated bands employ service bureaux or some form of computerized system to pro-
cess accounting information with a view to providing data more efficiently and increasing
its timeliness. In many regards, these bands are facing the same types of problems and
handling it in the same way as private sector entities of comparable size. There is no rea-
son why bands cannot cope in the same way, ranging from having their auditors write up
their books to automated system of accounting. Skills and services are available from the
private sector if they can afford to hire them. (Section 5, pp. 47-49)
Need for New Funding Arrangements
Coopers & Lybrand consulted with federal and provincial officials and with members of
band and tribal councils in preparing their report. All were in agreement “that something
needs to be done and [they] are looking to the Special Committee for solutions”. The Joint
Council of Chiefs and All Chiefs’ Budget Committee of the Assembly of Manitoba Chiefs,
as well as the Assembly of First Nations, have examined the problem in detail and forth-
rightly expressed their hope for change:
This Committee has a responsibility to report on this issue and to recommend a complete
overhaul of the government’s 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 proverty and despair, or whether you wish to see
movement toward genuine self-government in which case completely new fiscal relation-
ships are required between the government of Canada and Indian people. (Joint Council of
Chiefs and All Chiefs’ Budget Committee of the Assembly of Manitoba Chiefs, Special
3255)
The Minister of Indian Affairs and Northern Development, the Honourable John
Munro, indicated what he sought from the Committee in this area:
The Committee somehow has to come up with a new set of ground rules that will be
acceptable to Parliament for the handling of public moneys. (Sub 2:33)
The Indian population continues to suffer from the negative aspects of the present rela-
tionship. Until we come forward with remedies, the Indian communities will not be in a
position to enjoy long-term benefits from the expenditure of public moneys. The sense of
frustration will only increase. (Sub 2:17) ‘
30. The Committee is entirely convinced that Indian self-government must be supported
by new funding arrangements that would enable Indian First Nation governments to decide
how best to meet their peoples’ needs.
Committee members were particularly impressed with two observations made in the Coopers
& Lybrand report:
The present departmental rules are appropriate for agents, not for governments.
Funding mechanisms are the key to reducing administrative and accountability
burdens.
While expressing support for grants to Indian governments as a way of reducing this
administrative and accountability burden, Coopers & Lybrand stressed, and the Committee
agrees, that “if accountability is to be reduced, Parliament’s expectations of the Minister
must also be changed”. (Summary report, p. 41)
Coopers & Lybrand concluded its report to the Committee with the following observa-
tion:
We recognize that the departmental position reflects appropriate concern for obtaining
value for public monies expended, as well as a fear that Indian bands are not ready for full
self-government. Nevertheless, our findings suggest that present administrative and
accountability processes, despite their great costs, are not succeeding in preventing the
very things that the Department is worrying about. Thus at issue is whether Indian band
accountability to their people will produce worse or better results. We are confident that
the portion of total funding that needs be dedicated to administration and accountability
can be reduced.
The Committee strongly endorses the following conclusion of the Coopers & Lybrand
study:
Whether programs will be more effectively delivered and abuses prevented will depend on
the quality of the accountability processes of the Indian bands themselves, including the
leadership they put in power and the administrators they choose. The administrative and
accountability processes of the government of Canada are not processes Indians either
need or can afford, so it is time they start to develop their ownprocesses according to past
traditions and the experience they will gain by actually doing ‘ – Rather than the Depart-
ment deciding whether bands should assume self-governing responsibility based on its cri-
teria, members of each band should be allowed to balance the risks against the benefits
they might gain. (Summary report, pp. 41-42)
Basic Requirements of New Arrangements
The two major deficiencies identified in the Committee’s examination of current fund-
ing arrangements for band councils are the retention by the Department and the federal gov-
ernment of control of all policy and programs and the requirement that bands account to the
Minister of Indian Affairs for all expenditures. As has been noted several times in this
report, these conditions and requirements frustrate any movement toward self-government.
31. In the Committee’s view, self-government requires that Indian First Nation govern-
ments be free to make policies and to set their own priorities. To ensure that they exercise
such powers responsibly and that the people in turn are protected against wrongful use of
these powers, these governments must also be accountable to those people.
Indian witnesses saw both these needs clearly:
Bands must have the resources and discretion to set their own priorities, set their own
needs, and the financial ability to manifest those priorities. In your report to Parliament, I
would appreciate your stressing this fundamental prerequisite to the development and
enhancement of Indian government. (Grand Council of Treaty No. 3, Special 1:94)
Accountability should be to the members of the affected Indian government. (Indian Asso-
ciation of Alberta, Sub 1l:106)
The Committee directed Coopers & Lybrand to examine alternative funding methods
and to suggest arrangements appropriate to Indian self-government, bearing in mind that the
greater part of the funds required for the operation of Indian First Nation governments
would have to be voted by Parliament—either by appropriation or by statute—and paid out
of the Consolidated Revenue Fund.
Coopers & Lybrand systematically reviewed the parliamentary and governmental
requirements under present statutes and regulations for granting appropriation authority.
They also described the differences between grants and contributions, commenting on the
Treasury Board rules relating to them and how the Department of Indian Affairs and North-
ern Development interprets and applies these rules. They examined various funding arrange-
ments by governments and between governments, looking particularly closely at federal-pro-
vincial fiscal arrangements. Finally, they considered the financial systems under which
Crown corporations and various external aid agencies, both public and non-governmental,
operate. In their review of intergovernmental financing, they turned to the Rowell-Sirois
Commission, which had strongly criticized “the conditional grant… [as] an inherently
unsatisfactory device. . . We believe it to be more costly. . . [and it] unquestionably leads to
delay and to periodic friction.”
Indian witnesses brought a similar message to the Committee:
We urge the discontinuation of contribution agreements. I urge your Task Force to recom-
mend as a priority that Treasury Board develop, in close consultation—I repeat, in close
consultation—with the Indian people, a creative and original procedure by which transfer
grants may be provided to our bands and tribal councils. (Grand Council of Treaty No. 3,
Special 1:95)
Establishing Accountability
If Indian governments are to be established, they will have to be accountable to their
own people, and accountability to the Department will have to end. It is impossible for a gov-
ernment to be fully accountable to two entities on a matter so basic as the spending of public
moneys.
Arrangements that band councils now have for the transfer of funds require councils to
account to the Department in great detail on the expenditure of these funds. Coopers &
Lybrand noted that, in addition, even where grants are used, the Department has made a
practice of insisting on extensive conditions. Normally, such grants to non-Indian entities
involve only “limited accountability”. (Summary report, p. 19) In the opinion of Coopers &
Lybrand,
while the financial control requirements for contributions may be appropriate for pay-
ments to individual persons or companies accountable only to themselves, the grant
approach is more appropriate for self-governing Indian bands who have their own account-
ability to their members. Redesignation of funds now appropriated as contributions so that
the accountability arrangements for grants are permitted, and removal of many of the con-
ditions now imposed on grants, would also greatly lighten the present administrative
burden.
Coopers & Lybrand went on to recommend that:
DIAND rules for funding Indians ought to be revised to better recognize what is appropri-
ate under a concept of Indian self-government. Instead of negotiating contractual type
agreements which are appropriate for agents administering a program on the
Department’s behalf, the Department should adopt a more comprehensive approach
whereby the bands identify their total requirements as part of their own budgetary pro-
cesses, with federal funding being determined for all programs based on a single and much
simpler agreement. (Section 9, p. 37)
An agreement between the federal government agency responsible for disbursing the
funds and each recipient Indian government would thus be necessary. Each agreement would
state the amount of the grant, indicate broadly what government functions it was intended to
cover, and call for, as a minimum, an annual audited financial statement, prepared by an
independent auditor, confirming that the funds had been expended for the agreed purposes.
But within these broad parameters, each Indian First Nation government would be free to
allocate the funds as it judged best according to its own priorities and policies.
The responsible use of funds can best be ensured if internal accountability systems form
an integral part of the new Indian governmental structures. The Committee considers such
arrangements to be crucial and for this reason recommended earlier that federal recognition
of each Indian government should only be accorded if its people have put adequate systems
in place. For the same reason the Committee would strongly urge that grants be made only
to Indian governments whose effective internal accountability arrangements have been rec-
ognized in this way.
The transfer of federal funds to Indian First Nation governments to fulfil agreements
requires parliamentary approval. If a system of grants is introduced, however, the Commit-
tee would not expect a federal minister to be held accountable by Parliament for the way
funds are spent by an Indian government, just as federal ministers are not held to account for
the way provincial governments spend federal equalization payments. This is a very impor-
tant principle. In Canadian parliamentary practice a grant has legislative force, and Parlia-
ment takes fullresponsibility for the payment. This is what makes the grant so well suited
for Indian self-government.
Source of Funds
Indian witnesses frequently gave reasons for federal payments to Indian governments
being a matter of entitlement:
We ask you to consider the justice of our situation. In signing treaties, we have never sur-
rendered our sovereignty or our resources. If we had controlled or even shared in the
resource development of our area, we would not be in our present position today. (Rainy
Lake Regional Tribal Chiefs, Special 1:19)
The First Nations have already made a one-time-only contribution of resources to Canada
sufficient to capitalize a fund for current payments. (Assembly of First Nations, Special
9:11)
Parliament and the government of Canada [should be] committed to the principle of mak-
ing statutory payments to ensure that the Indian governments of the First Nations have
sufficient revenue to provide reasonable and comparable levels of public and social services
as guaranteed by the treaties in establishing clearly the fiscal obligations of the federal
government. (Federation of Saskatchewan Indian Nations, Special 12:135)
32. The assets now controlled by Indian governments are not sufficient to support those
governments. It is the Committee’s hope and expectation that claims settlements, Indian
control and development of their land base, new arrangements for resource revenue-sharing
and other long-term entrenched financial arrangements would in due course provide Indian
First Nation governments with assured funding. In the interim, grants will be necessary and
are justified. Nevertheless, the Committee does not wish to see its advocacy of transfer pay-
ments reduce the pressure for progress in settling these other matters.
The federal government is already transferring money to Indian band councils to cover
these costs, under arrangements that are inefficient and costly and threatening to become
more so. A new system of grants, which need not cost the Canadian government any more
than is now being spent, would reinforce self-government by Indian First Nations, and the
funds would be spent more productively.
Canada has a tradition of sharing the national wealth. For many years a system of fed-
eral equalization payments to those provinces whose revenues fall below the national average
has been elaborated to permit poorer provincial governments to provide a minimum level of
services. The principle of equalization payments has now been entrenched in the Constitu-
tion. In addition, federal funds are transferred to provinces to support health care, hospital
services and post-secondary education. Although Established Programs Financing was his-
torically tied to open-ended health and post-secondary education costs, the federal govern-
ment subsequently decided to put a limit on its payments. Since then the federal and provin-
cial governments have been divided over the provinces’ right to spend the money as they
wish.
It is important to note how these payments to provinces are determined and made.
Every five years the federal government submits legislation to Parliament to provide a statu-
tory basis for annual payments under these programs. The Committee believes that a compa-
rable practice would be appropriate for Indian First Nation governments and could be
expected to be more productive and acceptable than the present arrangement. Witnesses
indicated that they favoured such a mechanism:
We require an end to the current financial arrangements, which are totally unrelated to
any rational process of economic development. We require an arrangement for equaliza-
tion payments with a built-in adjustment factor similar to those presently enjoyed by the
provinces, which, in the aggregate, have already reached a development stage far above
ours. (Blackfoot Band, Sub 8:90)
The comparison with treatment of the provinces occurred frequently during the hearings:
If we compare these transfer payments with those received by provincialgovernments,
there are rather startling differences. Provincial equalization payments are untied moneys,
that is, the provincial governments have full authority to determine how these moneys will
be spent. Very few of our transfer payments are untied. We are controlled to a degree that
no provincial government would tolerate. (Indian Association of Alberta, Sub 8:26)
The principle of federal grants is, in the Committee’s opinion, fully justifiable. The
Committee agrees with the testimony of Indian people that they are not receiving charity.
Indian people are entitled, at the very least, to a level of services received as a matter of
course by Canadians.
33. The Committee recommends that future federal payments to Indian First Nation
governments be in the form of direct grants. Such payments should be made to all Indian
First Nation governments recognized by the federal government as being accountable to
their people.
The Committee considers it necessary to make explicit a point implicit in its advocacy of
this arrangement. Once an Indian First Nation government was recognized by the federal
government, with an adequate system of accountability in place, that government would be
entitled to funding in the form of a grant. The First Nation government itself would decide
whether to accept this grant, balancing the risks of the decision against the benefits and
assuming responsibility if it decided to accept the grant.
Funding Principles
The Committee envisages that recognized Indian First Nation governments would
receive a single payment for government operations and the delivery of all services. Under
this system the funds would not be earmarked; for example, funds for health care would no
longer be provided separately. Each Indian First Nation government would decide how to
allocate its funds among social services, health care, housing, education, and other programs.
Similarly, Indian First Nation governments would be free to choose the mechanism for
providing services. It can be assumed that Indian First Nation governments would provide
many governmental services themselves. Alternatively, they could contract with a provincial
government, a municipality, a private agency, a tribal council or even the federal govern-
ment. In the case of medical services, for example, Indian First Nation governments might
find it more suitable to contract with an area medical facility. The essential principle is that
each government would make its own decisions and agreements, applying its own values and
standards, rather than having them imposed from outside.
An exception to the single payment concept should be made for economic development
and for funding to correct serious deficiencies in basic community infrastructure. In these
areas, needs and potential vary, and a different basis for disbursing the funds is justified.
At present, apart from core funding for band councils, the federal government, through
a variety of channels, makes payments direct to tribal councils, to the Assembly of First
Nations and to numerous other Indian organizations. Once the new funding arrangements
are in place, Indian First Nation governments should decide what powers and what financial
resources they are prepared to provide to entities such as tribal councils and regional, provin-
cial and national organizations. But until the new arrangements are in place, basic needs are
met, and moneys are more readily available for political funding, the transition should be
effected slowly.
Special federal programs available to all Canadians as individuals should also be avail-
able to individual Indian people. An example would be payments for installing insulation in
older houses, which are paid to any Canadian who takes advantage of the legislation,
although that person must conform with the conditions of the program and must make an
application. In such instances, as well as for national programs such as unemployment insur-
ance, the Committee concluded that people of the First Nations should be eligible in the
same way as other beneficiaries.
A few witnesses advocated the appropriation of special funds to cover the salaries of
Indian government officials. If the salaries of officials of Indian First Nation governments
were funded separately, the accountability link between the people and their officials would
be weakened. In the Committee’s view, decisions on salaries should be made by each commu-
mty.
The Committee believes that it would be essential in the early years to ensure that train-
ing requirements were taken into account in determining the financial needs of Indian First
Nation governments. The situation of Indian peoples has not -permitted the development of a
cadre of leaders and administrators. With Indian people assuming control of their own
affairs, it can be assumed that they will want training programs, and it is important that
they have the means to obtain them.
Disbursing Funds
The Committee has documented the problems resulting from the present funding
arrangements under which the department disbursing funds is also responsible for advising
on and monitoring their use and for the delivery of services. The answer would appear to be
to separate funding from policy and program delivery, similar to the practice adopted by
several provinces for funding universities and municipalities. This was the advice of Coopers
& Lybrand, who recommended a funding agency that had “no program delivery or other
responsibilities that might be in conflict with its funding responsibilities.”
An approach to disbursing funds consistent with the Committee’s advocacy of govern-
ment-to-government relations would be for each Indian First Nation government to negoti-
ate directly with the federal government. While this would allow for flexibility and diversity
in meeting the separate needs of Indian First Nation governments, the negotiations would be
extensive and time-consuming. With hundreds of separate agreements to work out, this
approach could be unfair to some, and the more sophisticated Indian First Nation govern-
ments could be at an advantage.
34. The alternative favoured by the Committee would be to fund First Nations govern-
ment operations through a modified per capita formula. This would ensure equity and
greatly facilitate disbursement. It would be important to elaborate a formula that provides
for adjustments, since the relative needs of communities vary. The Committee is convinced
that an acceptable formula could be worked out between the federal government and Indian
First Nation governments. In addition, there might be funding for exceptional needs.
The Committee is aware that determining the total amount of money to be transferred
annually to Indian First Nation governments would not be easy. In the Committee’s view, an
appropriate yardstick would be to allocate sufficient funds to provide governmental and
social services comparable to those enjoyed by non-Indian people living in neighbouring com-
munities.
Provincial government entitlements under Established Programs Financing (EPF) are
based on per capita calculations, which now include Indian residents of provinces. Yet
several witnesses claimed that Indian people did not get their fair share of benefits from
these funds. The Committee urges that this matter be examined carefully, including the idea
of adding an EPF component to Indian funding and reducing the transfer to a province by a
corresponding amount when transfer payments are being calculated.
Several witnesses advocated the creation of a Canada-First Nations Fiscal Arrange-
ments Commission to negotiate the global amount of funding available for disbursement and
to handle the problem of actually disbursing these funds to individual Indian governments.
While convinced that the disbursement of funds to Indian First Nation governments must be
separated from program delivery, the Committee does not wish to prejudice negotiations by
recommending the mechanism for disbursing the funds.
There will certainly be a need for a minister—perhaps the Minister of State for Indian
First Nations Relations mentioned earlier—with responsibility for acting on behalf of the
federal government to negotiate the global funding for First Nation governments. On the
Indian side, representatives of recognized First Nation governments would have to be desig-
nated as negotiators. Apart from settling on a global figure, the two sides would have to
work out a broad division of the total figure between funds for government operations on the
one hand and for economic development and correcting serious infrastructure deficiencies on
the other. Finally, the two sides would need to establish a formula for determining the per
capita payments.
Once the global amount had been established, the broad breakdown between categories
worked out, and a formula for allocating funds among recognized governments devised, the
actual disbursement could be handled by a small agency of the federal government or by a
fiscal arrangements commission. The specific tasks of such an agency would be to make pay-
ments to First Nation governments, to receive the annual audited statements of recognized
governments, and to consider questions arising out of the application of the formula.
With regard to funds for economic development, some witnesses suggested an economic
development agency to make funds available to enterprises, agencies, co-operatives or Indian
First Nation governments for economic development. Possible models mentioned included
the Canadian International Development Agency (CIDA), the International Development
Research Centre, or a non-governmental organization. The Committee decided not to make
a specific recommendation. The Coopers & Lybrand study criticized the CIDA model on the
grounds that CIDA suffered from many of the same deficiencies as the Department of Indian
Affairs and Northern Development. Coopers & Lybrand nevertheless recommended that a
separate agency be established to disburse economic development funds. The Committee felt
that the structure and mechanism for doing this should be developed in negotiations between
the federal government and Indian First Nations.
It is most important that Indian First Nation governments have assured funding so as to
be able to make firm long-term plans. The same arrangements that prevail for equalization
and Established Programs Financing payments to provinces—a statute providing funding
authority for a five-year period—would seem to be the most appropriate. Such an approach
would lead to the automatic transfer of funds to the agreed funding agency during the five
years covered by the legislation. Indexing could cover such factors as inflation and popula-
tion growth.
35. The Committee recommends that the global amount of funding for First Nations
government operations, for economic development, and for the correction of serious infra-
structure deficiencies be determined in negotiations between the federal government and
designated representatives of Indian First Nations. The Committee further recommends
that Parliament be asked every five years to approve the global amount of funding by means
of statute. The structures and mechanisms through which the funds for each of these three
categories would be disbursed should also be settled by negotiation.
Funding of Bands Not Opting for Self-Government
The Committee anticipates that some Indian bands might not wish, at least initially, to
exercise the responsibilities involved in self-government. Some might decide to defer such a
step until they have had the necessary training and have staff and systems in place. In such
situations witnesses suggested, and the Committee agrees, that special funding be provided
for development and training. To ensure that government services are available, the Commit-
tee proposes that any such band join with the federal funding agency to contract with a
tribal council, another Indian government, a private enterprise, or the Department of Indian
Affairs and Northern Development to provide the services.
Conclusion
Canada has developed innovative fiscal arrangements to ensure that provincial govern-
ments are able to offer roughly comparable services to Canadians in all parts of the country.
There is no reason to be any less innovative in funding Indian First Nation governments,
whose diversity is even greater. In proposing a system of grants to be disbursed by a new and
jointly agreed upon distribution agency, the Committee believes that it has recommended fis-
cal arrangements that meet the needs of the situation. Nevertheless, the Committee is well
aware that, as Chief Jim Bear said in his testimony, “the precise mechanism and level of
transfer is a matter for political negotiations between Indian people and the federal and pro-
vincial governments. . (Special 3:63)
The Committee is urging this approach for two important reasons: first, because such a
funding arrangement is essential to reinforce and provide for the exercise of Indian First
Nation self-government; and second, the Committee believes that this approach would
reduce unnecessary administrative costs and represent the best use of scarce funds. The
needs of Indian First Nation governments are great, and there are bound to be limits to the
funds the federal government will be able to provide. It is important to have in place fiscal
arrangements that will make the available funds reach as far as possible.
CHAPTER 8
LANDS AND RESOURCES
Introduction
For Indian people, land is much more than a source of profit and wealth creation or a
place in which to reside temporarily. Their attachment to the land is part of a spiritual rela-
tionship with the universe, its elements and its creatures. Indian people see themselves as
caretakers of the land and its resources. Land is thus a prerequisite for and vital to self-gov-
ernment. Indian people assert that their rights flow from their relationship with the land.
Aboriginal title pertains to the historical connection that Indian people have always had to
the land and to the interrelationship of land with all aspects of life—language, culture, and
economic and political systems.
Our people have owned and cared for the land since time immemorial. This is why we
demand that aboriginal title must be recognized in the Constitution. The land, language,
and laws of our culture cannot be separated. Everything for the Nishga people—our way
of life, our means of earning income, our relationships with each other and with the rest of
the world—all are based on our ownership of our land. This is why our people say that
self-government is our right, as a collective people, to protect our lands, to protect our cul-
ture, and to pursue and strengthen our way of life in every respect. (Nishga Tribal Coun-
cil, Special 7:31)
In some parts of Canada, treaties were negotiated with Indian governments so land
could be settled. The signing of treaties affected aboriginal title. Indian people see treaties as
affirming rights and establishing the sharing of land and resources, while non-Indian govern-
ments view treaties as extinguishing Indian rights to land and resources.
When the white people came to this country they sought the right to occupy some of our
lands to till the soil and provide for themselves, and wanted to formalize our consent
through a treaty. Our chiefs, acting in their rightful capacity as the leaders of Indian gov-
ernments, were prepared to offer such consent in a formal treaty. All the chiefs agreed to
do was to allow the white people to live on the land and to till the soil. Our forefathers
agreed to give up no more than this in the treaty agreement. (Yellowhead Tribal Council,
Sub 10:32)
Reserves
Indian witnesses considered the non-Indian view of reserves as property provided to
Indians by the government to be historically inaccurate. Rather these were areas that Indi-
ans reserved for themselves under treaties, or were part of lands that they never surrendered:
When we established those reserves, those were established under the Proclamation and
the treaty process, and they were reserved lands, reserved with sovereignty intact for gen-
erations by our people. They were not lands that were acquired by the Crown and granted
to us later. The Crown did not have any land to give to us at the time of treaty; we had all
the lands. We granted you conditional access to those lands. (Federation of Saskatchewan
Indian Nations, Sub 16:18)
Non-Indian perceptions have led to a legal framework—found in the Indian Act and in
court decisions, beginning with the St. Catherine’s Milling case—that reflects an entirely
different interpretation.
The Indian Act describes a reserve as “a tract of land, the legal title to which is vested
in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a band”.
In the St. Catherine’s Milling case, the Indian interest in land was characterized as a “mere
burden” on provincial title to land. While other cases have described the Indian interest in
stronger terms, the courts have held that the provinces had the ultimate title to reserves, once
the Indian interest was surrendered. That underlying approach has been altered by federal-
provincial agreements in all parts of Canada except Quebec and Prince Edward Island, with
the result that full rights to manage reserve lands, both before and after surrender, are with
the band and the federal government. Those concepts do not accord with the Indian view
that full rights for reserve lands lie with them.
The legal concept of “reserve” under the Indian Act and departmental policies in regard
to land rights have created problems, even for Indian communities in isolated locations. For
example, the Committee held hearings in Lansdowne House, in an unsettled part of northern
Ontario. The community is situated on land not recognized as a reserve, although Indian
people have always lived in the area. The community has been built by the Department on a
swamp, distant from wood supplies, and where drinking water is contaminated. The people
of Lansdowne House have been unable to get permission to relocate nearby:
. . . the province of Ontario views our lands as Crown lands and therefore under its owner-
ship and control. The province wants us to get approval from them and the proper provin-
cial permit in order to use our own lands. The Department of Indian Affairs sides with the
province in our dispute over lands because it is the view of the government of Canada that
the Nishnawbe-Aski surrendered their lands except for the reserves. The Department of
Indian Affairs is therefore reluctant to help us in our relocation because we have a land
dispute with the province. (Central Tribal Council, Special 37:12)
The Stoney tribal leaders, led by Chief Bearspaw, Chief John Chiniki, and Chief Jacob
Goodstoney and several minor chiefs of councillors, told the treaty commissioners:
We will never give you the land, but we will share the land with you. We will let you
use the land for plowing and growing crops. You can raise your cattle and build your
homes for your families.
The treaty agreement, to our people, was peace agreement. It was an agreement to share
the land in peace.
But we never agreed to surrender either the land or the mineral rights.
Our people never agreed to surrender any of our rights. (Bearspaw Band, Sub 8:54-55)
Our forefathers believed that the land belonged to no person. In their eyes, it was sacred.
It belonged to the Great Spirit. They believed that.,as long as they were allowed to hunt
for food, there would be no cause to be afraid for their future. They could not imagine
people claiming ownership of land.
Our forefathers did not understand that reserves were meant to be set aside as portions of
land intended fully to support us as farmers and ranchers.
The federal government gave away control over those lands to the province in 1930. Ever
since that time, our right to hunt there has been chisled away in favour of making parks,
recreation areas, and wildlife sanctuaries.
Today, we know that the land is of first importance. We want to be assured our lands will
be recognized by the federal government as being completely and indisputably ours to own
and control. This assurance must be the first step in the direction of Indian self-govern-
ment. (Chiniquay Band, Sub 8:59-60)
The federal government’s justification for retaining the power to manage reserve lands,
as set out in the Indian Act, is that this is necessary to prevent non-Indians from taking
advantage of Indians. Historically, it was feared that Indians might make improvident dispo-
sitions of their lands. Yet, as the Committee’s research study on the trust relationship
revealed, the federal government disposed of huge tracts of land without necessarily consid-
ering the best interests of Indians.
In some instances bands’ land bases were substantially reduced through involuntary sur-
renders of land for such purposes as railways, highways, dams and army bases. The Kitsum-
kalum Band, for example, described how it had lost half its reserve to rights of way and
leases. (Special 7:70) Chief Phil Goulais of the Nipissing Band described other instances
where land surrenders had resulted in the loss of land.
Many of the bands have lost land in the last number of years by different means. Some of
them are called surrenders of land, and some could be deemed invalid. There have been
shoreline erosions of the bands’ property, caused by power project damming, the raising
and lowering of water levels causing shoreline erosion and flooding. Those are specific
items that have contributed to the loss of our land base for many of our bands. (Special
14:54-55)
The Indian Act reveals many non-Indian assumptions about the relationship between
Canada and Indian people. The Act describes how reserve land can be alienated (an all-
encompassing legal expression meaning the disposal of land by sale, lease or any other
means), but does not say how bands can acquire land. It was assumed that the Indian popu-
lation would gradually decline and eventually disappear.
The Indian Act establishes a unique system of land-holding on Indian reserves; it was
intended to promote the transition from a collective system of land-holding to one emphasiz-
ing individual ownership similar to that used by non-Indians. A band member may obtain
the right to use and occupy a portion of the reserve through an allotment system. Under sec-
tion 20(1) of the Act he may possess land allotted to him by the band council and approved
by the Minister. A Certificate of Possession is issued by the Registrar of Indian Lands to the
individual, who must use the land in accordance with band by-laws and the provisions of the
Act. The Act also provides for the use of land on a temporary or conditional basis. In such
instances, a Certificate of Occupation allows an Indian to occupy the land for a renewable 2-
year period.
Many bands do not use these certificates or other Indian Act provisions regarding land-
holding. They follow band custom or make allotments at the pleasure of the band council.
Some bands explained that they did not use the allotment system because the legislation is
vague and ministerial discretion is excessive.
The allotment system is little understood and much ignored by bands. This creates confu-
sion between the rights of the individual allotee and the collective rights of his or her
band….
The system is described so badly in legislation, and is so subordinated to the discretion of
the Minister, that it is in many cases impossible to establish priorities between the
individual and the band or between the individual and the government. (Association of
Iroquois and Allied Indians, Special 16A:7, 20)
More importantly, the allotment system is fundamentally different from the customary
land-holding practices common to many Indian First Nations. Over the years, the balance of
rights maintained through traditional practices has been disturbed by the operation of the
Indian Act and federal policies. As well, tension has been created between the rights of exist-
ing members of an Indian First Nation and the rights of future generations of members, who
are also to benefit from the land and its resources.
The Committee is fully in accord with the principle that Indian First Nation lands
should be under the control of Indian First Nations. Moreover, it is the responsibility of the
federal government to manage its special relationship with each First Nation in such’ a way
that each First Nation’s lands will be maintained for its use.
We would like title to our reserve lands. The recent decision of the Federal Court of
Appeal in the Musqueam case says that the Department has no legal responsibility as
titleholder. This is totally unsatisfactory, and the Department can have no legitimate rea-
son for clinging to this title any longer. (Sechelt Indian Band Council, Special 6:97)
We want to be assured that our lands will be recognized by the federal government to be
completely and undisputably ours to own and control. That assurance must be the first
step in the direction of Indian self-government. (Chiniquay Band, Sub 8:60)
36. The Committee is convinced that, in order to ensure that self-government becomes a
reality, each Indian First Nation must have full rights to control its own lands in the manner
it sees fit. This would mean power to decide upon methods of land-holding and land manage-
ment on reserves. Such areas should be recognized as Indian lands.
37. The Committee recommends that the federal government promote the constitutional
change necessary to recognize in law full Indian First Nation rights to the lands, waters and
resources of all areas now classified as reserves or in future considered as Indian lands. In
the interim, the Committee urges the federal government and designated representatives of
Indian First Nations to agree upon the measures now possible to achieve these objectives.
Indian First Nation Lands and Resources
Once these changes were made, Indian First Nation governments would exercise full
control over the resources on reserves and would receive any royalties generated from them.
This is consistent with the general thrust of this report that Indian First Nation governments
should have exclusive jurisdiction over activities on reserves. Furthermore, Indian First
Nation governments would be responsible for the use and management of these funds and
would be accountable to their people for the disposition of such moneys.
Under the Indian Act much reserve land has been conditionally surrendered to permit
leasing and development. In future, such matters would be under Indian First Nation con-
trol, and there would be no new surrenders. Indian First Nations would make their own leas-
ing arrangements, and the basic legal status of the lands—that is, “Indian lands”—would
not change.
For lands currently classified as ‘conditionally surrendered’ for uses such as shopping
centres, golf courses or timber harvesting, there will need to be a review by representatives of
the federal government and the Indian First Nation concerned. New agreements as to future
management and jurisdiction should take into account other interests in the land, particu-
larly those of lessees.
The land base of an Indian First Nation could not be sold off and become part of
another jurisdiction; it would always remain under Indian First Nation control.
Should the people of an Indian First Nation decide that it is in their best interests to
exchange, sell, or otherwise alienate their interests in lands or non-renewable resources, the
Committee is of the view that the federal government should not interfere in this matter. The
people of an Indian First Nation would ensure through their own form of government that
they had made adequate provision for themselves and for future generations. In these cir-
cumstances, the Committee does not see the need for external constraints on the sale or
mortgaging of these lands.
38. The Committee recommends that there be an official Registry of Indian First
Nation lands. It would hold records of land under Indian First Nation control, to be distin-
guished from federal and provincial lands.
The combination of collective ownership by the First Nation and the jurisdiction of the
Indian First Nation government leads to a unique situation. Indian First Nation govern-
ments serve not only in governmental matters but, in some ways, also represent their mem-
bers’ interests in assets owned in common. In this way, Indian First Nation governments are
different from municipal and provincial governments. This poses a special problem in regard
to non-Indians living on Indian lands, who might feel that, as residents, they have a right to
participate in the government of the community. Yet, as non-members, they do not share in
the ownership of the assets administered by that government and have no right to a voice in
such matters. Aboriginal rights should predominate over any claims of non-members to pro-
tection under the Charter of Rights. Only those people whom an Indian First Nation decides
to include in membership should have the right to participate in the selection of that First
Nation government or to participate in its governmental affairs.
Indian reserves as they were set aside were meant for Indian people. As more and more
non-Indian people move onto the reserves, it becomes more and more difficult. I am not
talking only about non-Indian people, but also in terms of development. It makes it dif-
ficult for us to survive as Indian people, because along with these people come their own
laws and regulations, whether it be through an understanding through the person who
owns the land that they have rights on an Indian reserve—and the Charter of Rights could
very well -determine that. White people or non-Indians living on a reserve under the
Charter of Rights may even have power and authority one day to elect the chief. They
might have that power. (First Nations of South Islands Tribal Council, Special 4:54-55)
Indian Interests in Other Lands
39. Indian First Nation control of Indian lands is the first and most obvious move
needed to promote self-government. Indians also call for recognition of certain rights based
on treaties or aboriginal title to traditional hunting and trapping areas.
Indian witnesses asserted an interest in lands that have not been alienated from Indian
control through a consensual process. Indian communities are not always located on these
lands. They claim some rights because of original use and occupation of a much larger area.
In addition they point to treaty provisions by which Indians intended only to share land, not
relinquish it completely. Indian witnesses emphasized consistently that their rights did not
end at the boundaries of reserves. Instead, emphasizing the need to develop mechanisms
whereby Indian people could participate in the control and management of these lands and
resources, they advocated a system of coexistence and not the exclusion of other interests.
The economies of many Indian communities have been threatened by the development
of large-scale resource projects, logging operations, dams and irrigation projects launched
with little or no involvement of Indian people. For example, Indian bands that hunt and trap,
activities requiring a large land base, can be severely affected by a development such as a
dam hundreds of miles away. Indian First Nation governments want to share in decision-
making on actions that affect their lands and resources. With Indian First Nation govern-
ments in place, development on lands where Indians claim rights would thus have to be
decided by all governments involved in the matter. Similarly, on questions of resource
development, the interests and concerns of Indian First Nation governments would have to
be taken into account by other levels of government.
40. In the past, external control has meant that Indian people have not shared fully in
the financial benefits of revenues arising from development of such resources as minerals,
oil and gas. These revenues could have a significant effect in the development of a viable
economic base, enabling Indian First Nation governments to become self-sufficient.
Lands North of 60°
The people of the Indian First Nations in the North face a particularly difficult choice.
They constitute a large percentage of the population and are considering alternatives to the
reserve system as means of holding land. The resolution of land and rights disputes in the
Territories is an opportunity and obligation for the present generation to be generous and
honest and to ensure that the indigenous people of the North are the primary beneficiaries of
development there, with a fair share of resources now and in the future. In doing that, the
federal government will have to take into account the wishes of the indigenous people and
recognize means of land-holding and control different from those used in southern Canada.
Restoration of the Land and Resource Base
An adequate land and resource base was seen as a prerequisite to self-government;
Indian First Nations must have enough land for their members. Increased population
through natural growth or the return of members now living away from reserves will put
additional pressures on existing lands.
One significant factor to be taken into account is the possibility that Indian people rein-
stated by changes to the Indian Act may wish to return to their reserves. If large numbers of
people move back, this will put pressure on the land base and community resources.
The Sub-committee on Indian Women and the Indian Act recommended reinstatement
of Indian status under the Indian Act, upon application, for all women who had lost status
and for their first-generation offspring. The Sub-committee noted that reinstatement would
result in increased band membership and in possible demands for additional land and
resources.
Many witnesses spoke of the need for additional land to accommodate the increased
population that could result from reinstatement.
In those tribes where there is need for reinstatement, resources including land and finan-
cial, should be made available to assist the process. (Carrier-Sekani Tribal Council, Spe-
cial 20:36)
41. The Committee recommends that any reinstatement of members mandated by the
federal government should include a review to determine the additional resources necessary
to cover the needs of reinstated people and to recommend a mechanism to provide them.
As indicated in the Committee’s economic foundations study, an adequate land base is
“fundamental to future economic development, self-reliance and self-government”. (p. 113)
Primarily, there has to be an absolute connection between land, resources and self-suffic-
iency in Indian government. Without land, without resources, there is no self-sufficiency;
and without being self-sufficient, there is no Indian government. So it is our premise that
we have to have the land before we can actually make the advancements in the resource
development to attain that self-sufficiency. (Association of Iroquois and Allied Indians,
Special 16:23,32)
In earlier negotiations on lands for reserves, there was a tendency to set aside land in
rural or remote areas. In some instances Indian people themselves preferred these locations,
but times and circumstances have changed. Indian First Nations should not be limited to a
land-based economy if that is not their wish, but should be free to pursue a variety of eco-
nomic ventures. Expansion of the land and resource base could include expansion into urban,
rural or isolated locations as determined by individual Indian First Nation governments.
Over the years Canadian governments have responded negatively to land claims made
by Indians, often maintaining that there is no unsettled land available or going to great
lengths to rebut the rationale for the claims. Unfortunately this negative attitude to Indian
land rights has been shared by too many Canadians.
It is essential to point out the false premise and injustice of this response. While
Canadian governments have been slow to find land to settle the Nishga claim, the B.C. cut-
off claims, the Prairie entitlements, and many others, they have had no trouble finding land
for much larger national parks, defence bases, hydro developments, airports and resource
projects. Canada has set aside 130,168 square kilometres for national parks, yet only 26,335
square kilometres for Indian reserves. The Committee does not dispute the need for parks,
defence bases and airports; but surely the land rights of the original inhabitants of this conti-
nent deserve as much or more attention. Canadians who consider themselves just and fair
must reconsider their views on this matter. The government should commit itself to this
endeavour with at least the same effort it devotes to finding land for government projects.
One of the most distressing problems the Committee encountered were bands that had
no reserves; the Lubicon and Conne River Bands are two examples. Some were living on
Crown land, others were scattered. There were also bands that had land, but whose members
had moved away because of earlier DIAND policies denying them services, housing, schools,
and roads.
42. The Committee recommends that the federal government give high priority to pro-
viding a land base for those Indian communities now without a reserve.
Other ways of increasing Indian lands include the fulfilment of outstanding treaty obli-
gations. In some cases negotiations over the choice of a reserve have been going on for
decades. It is now time for action to settle these oustanding entitlements. The land selected
should be satisfactory to the Indian First Nation government concerned.
43. The Committee recommends that the federal government establish as a priority the
fulfilment of land entitlements and settlements of other claims.
All claims should be considered promptly and settled fairly. Dissatisfaction with the
current land claims policy and process was expressed thoughout the hearings; the following
section of this chapter is therefore devoted to this significant subject.
44. The Committee recommends that the main way of expanding the land and resource
base of Indian First Nation governments be through a just and effective land claims process.
After entitlements to land have been fulfilled and after land claims have been settled,
Indian First Nations may wish to increase their land base further by buying additional land.
Under the present provisions of the Indian Act, band corporations can purchase land, but
this land is not considered to be “Lands reserved for the Indians”.
The Committee agrees that Indian First Nation governments should be able to buy
additional lands and that they would have ownership of such lands, but jurisdiction raises
special problems. Should Indian First Nation governments wish’ to acquire jurisdiction over
land they have purchased, this matter could be resolved only through trilateral discussion.
Jurisdiction might be transferred if arrangements could be made to accommodate provincial
interests. For example, provincial reluctance to transfer jurisdiction because of the loss of a
local tax base on the land in question might be overcome through the guarantee of an ex
gratia payment to cover the potential loss of tax revenue. In other instances, the cost of ser-
vicing the land might be greater than tax revenues, and a province might willingly agree to
transfer jurisdiction. As well, joint jurisdictional agreements could be negotiated.
The Committee has recommended a system of per capita payments to cover the cost of
government operations and additional funding for economic development and for correcting
infrastructure deficiencies. The arrangements for federal fiscal transfers should be put in
place as soon as Indian First Nation governments have been established and recognized. But
the Committee attaches equal importance to the speedy introduction of a new claims settle-
ment policy and process as well as to other measures to enhance the land and resource base
for Indian self-government. The settlement of claims would provide an independent eco-
nomic base for Indian First Nation governments and render them less dependent on federal
financial support.
The Resolution of Claims
Many witnesses asserted that land claims settlements were essential to the exercise of
self-government, in that they would provide an economic base.
Until our land claim is recognized and until the government of Canada recognizes our
land base and our territorial jurisdiction, Indian self-government will be an illusion. The
government of Canada must seriously undertake to negotiate our land claims so that our
people will have a land base upon which to build our Indian self-government. (Kanesatake
Mohawk Nation, Special 30:136)
Without land, without resources, there is no self-sufficiency; and without being self-suffi-
cient, there is no Indian government. So it is our premise that we have to have the land
before we can actually make the advancements in the resource development to attain that
self-sufficiency. (Association of Iroquois and Allied Indians, Special 16:32)
The claims issue persisted for years before the federal government acted to recognize
them. To illustrate their frustration, some witnesses quoted testimony before federal commit-
tees and commissions dating back to 1915 and earlier about situations that are still
unresolved.
In 1974 the federal government established the Office of Native Claims within DIAND
to negotiate the settlement of claims, which it considers to be of two types. The government
has designated as ‘specific’ those claims relating to the administration of land and other
assets and to the fulfilment of treaties—that is, claims relating to lands that had been part of
reserves or that, by treaty, should have been set aside. ‘Comprehensive’ claims are those
based on aboriginal title. Recent government policy statements on these claims are contained
in two publications, In All Fairness and Outstanding Business. Witnesses were extremely
critical of the government’s claims policies. A witness described one of the publications as
. . .written for the public in the corporate world, and created by a very slick process to cre-
ate in the public mind a definition of what is fair; then, clearly, anything that falls outside
that definition is unfair, unrealistic, not pragmatic, radical, etcetera. It is a very, very
insidious document in that respect. (Nishga Tribal Council, Special 7:54)
Many witnesses objected to the fact that land claims policy and procedures are defined
by government decision rather than by legislation. They pointed to the conflict of interest
inherent in departmental control of a process set up to decide upon the rights and entitlement
of bands whose claims arise from the actions or inaction of the same Department. Many alle-
gations related to breaches of the government’s trust responsibility to manage lands “for the
benefit of Indians”, questionable surrenders in which the role of DIAND officials is chal-
lenged, and failure to fulfil treaty obligations. Government legal opinions, which are not
available to the band making the claim and cannot be challenged, determine both the valid-
ity of claims and eligibility for funding to pursue the matter further. When a claim is
rejected, no substantiation is given. This process was condemned by Indian witnesses for its
lack of independence from the federal government and for its unilateral imposition of condi-
tions. Although many claims have been filed since the Office of Native Claims was estab-
lished, few have been settled:
The federal government right now is judge, jury, executor. They are everything rolled into
one, and that is specifically the problem now. When negotiations break down there is no
way we can arbitrate that situation. It is totally in the hands of the government to deter-
mine what they want to do with that process if we do not want to negotiate any further or
if we fail to come to an agreement on negotiation. So anything where we could take some
of the authority away from the federal government in that dealing would be of benefit. It
would be a positive step. (Association of Iroquois and Allied Indians, Special 16:25)
It is a strange rationale to allow a bureaucrat to have the power to decide on what is and
what is not a legitimate land claim. In the policy established for the settlement of specific
land claims, it is the lawyers of the Department of Indian Affairs and the Department of
Justice who determine the merit of the claim. In this way, they are both defendant and
judge. To further complicate matters, the opinions they write regarding the claims are
confidential. Therefore it is safe to state that they have taken on the role of protecting the
federal government and the provinces from claims that may be filed by the First Nations.
Claims that they feel have merit they will negotiate out of court, although the compensa-
tion they would award would be in proportion to the strength of the claim. So in this case
it would be best to go to court in order to ensure fair treatment. (Restigouche Band, Spe-
cial 22:10)
Strong criticism was directed at limitations imposed on the filing of claims. Claims
related to treaties or other events prior to Confederation cannot be considered under the
present policy. Legitimate grievances may not be entertained if the claims have been
superseded by law, a strange concept under which a law passed since the situation arose can
be asserted to have erased the government’s lawful obligation.
This concept of superseding by law will unilaterally abrogate the Micmac title, which was
protected by the 1752 Treaty of Friendship and Peace and the Royal Proclamation of
1763. This policy violates a principle of international ‘law as set out in The Declaration of
Principles for the Defense of the Indigenous Nations and Peoples of the Western Hemis-
phere, passed by the international non-governmental organization, Conference on Dis-
crimination Against Indigenous Populations in the Americas, in 1977. (Restigouche Band,
Special 22:11)
Objection was also taken to the fact that the resolution of land claims now rests entirely
with the executive. It is neither open to parliamentary scrutiny nor is there access to the judi-
cial system or an independent tribunal.
Witnesses pointed out that the current policy was developed without the involvement of
Indian people:
This policy was developed internally by the Department of Indian Affairs, utterly disre-
garding in its formulation the strong recommendations of Indian organizations across
Canada, and especially Ontario, regarding principles and mechanisms for claims settle-
ment. (Onegaming Band, Special 1:49)
In the view of Indian witnesses, claims should be open for periodic review and should include
settlements of political as well as land issues. The federal government, on the other hand,
states that claims are to be settled finally and should not include issues of political develop-
ment. Nonetheless, in Yukon and the Northwest Territories, there have been political discus-
sions as part of the land claim negotiations.
The research study on the economic foundations of self-government seriously questioned
the use of the James Bay and Northern Quebec Agreement as a model for land claims settle-
ments. While the Agreement has brought benefits to the Cree, there have also been major
problems, particularly in implementing the Agreement. In keeping with the principle of
respect for the diversity of Indian nations, the Committee concludes that there should be no
single model for claims settlements.
45. The Committee is firmly convinced that there must be a new policy to promote the
fair and just resolution of outstanding claims consistent with the protection of aboriginal
and treaty rights in the Constitution. The federal government and designated representa-
tives of Indian First Nations should undertake negotiations regarding a new claims settle-
ment process to be set out in legislation.
46. While the details of the new policy and process should be decided through bilateral
negotiations, the Committee does wish to set out certain principles that should be included.
47. It is imperative that the new process be shielded from political intervention. It
should be set out in legislation so that it cannot be readily changed. Claims should be nego-
tiated between the government and the claimant with a neutral party to facilitate the settle-
ment. Where a settlement cannot be reached, there should be access to a quasi-judicial pro-
cess. For Indian First Nation governments to participate effectively in claims negotiations,
they must have adequate financial support. Finally, under the new policy, pre-Confederation
treaties and other rights should be recognized, and claims should not be regarded as being
superseded by law.
The Committee is also critical of the present policy of extinguishment in native claims
settlements, whereby all residual aboriginal rights not specifically recognized in the settle-
ment are terminated and extinguished. By contrast, the government’s residual rights are not
subject to extinguishment.
48. The Committee recommends that the doctrine of extinguishment be eliminated from
the settlement of claims; settlement agreements should be limited to those matters specifi-
cally negotiated.
In the past the federal government has been slow in settling claims. The time has come
to change this attitude by adopting an explicit policy of settling claims in a fair, just and
prompt manner. Behind the policy should be the principle that Canada is obligated to restore
a strong economic base to those who have shared their land and resources. Such an acknowl-
edgement would recognize the original contribution of Indian people to the growth and
development of Canada.
A federal decision to pursue a speedy settlement of claims would require the federal
government to deal with the provinces. There should be every effort to involve the provinces
where appropriate in co-operative efforts to settle claims. The claims process should also
include periodic joint reviews so that new situations can be accommodated as they arise.
CHAPTER 9
THE TRUST RELATIONSHIP
The enduring nature of the special relationship, often described as a trust relationship,
between “Her Majesty the Queen” and the Indian nations of North America is described in
the following passage:
It was, and continues to be, of fundamental importance to the 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 long 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.
(Memorandum of law presented by the Union of British Columbia Indian Chiefs, the
Indian Association of Alberta and the Four Nations Confederacy at the time of patriation
of the Constitution, Special 16A:17)
The Indian nations in the early colonial period entered into direct negotiations and
agreements with the imperial authorities colonizing North America. Agreements made at
that time were set out in treaties and in British colonial policy, particularly as stated in the
Royal Proclamation of 1763. These were early expressions of this longstanding relationship.
The Crown and the First Nations
To achieve a better understandingiof the origin, evolution and current state of the trust
relationship, the Committee commissioned a study, The Crown and the First Nations: Trust
Relationships, which traces the history of the trust from colonial days to the present. Indian
peoples, non-Indian governments and the courts all have different perspectives about the
trust. Does the existence of a trust imply that Indian people are like children or ‘wards’ of
the state, or does the concept refer to solemn promises between nations that must be
honoured?
The research study described dealings between the Crown and First Nations in colonial
times as those of partners or allies—political equals acting on the basis of consent and equal-
ity. With consolidation of colonial control, the concept of trusteeship was added to the prin-
ciple of consent. In the Royal Proclamation, the notion of “protection of Indian nations”
appears:
The Royal Proclamation recognizes the existence of a special relationship between the
Indian Nations and the Crown. It is an alliance or a relationship of interdependence, not
one of dependence. Yet, the partners do not stand on an equal footing. Great Britain,
though recognizing the various Indian Tribes as allies, also assumes certain responsibili-
ties. She affirms that the Indians living in parts of her Dominions and Territories are
under her protection. She confirms that this is “just and reasonable.” She establishes a
relationship somewhat akin to a suzerainty, a relationship of a nation, living within the
boundaries and under the protection of a larger nation. Though recognizing the Indian
Tribes as nations, the Proclamation also contains elements which describe a trust relation-
ship. . . .
The essence of the policy behind the Proclamation, as indicated, is two-fold. On the one
hand it centralizes authority over Indian Affairs with the Crown in Right of England.
Second, it formalizes the Crown’s intent to strengthen its alliances with the various Indian
Nations. In so doing, the Proclamation denies the right of the Colonies to issue land grants
outside their boundaries, and establishes the approximate boundaries of Indian country.
. . .it outlines certain policy guidelines which subsequently become the basic principles of
Indian-Crown relations. In so doing, the Proclamation recognizes aboriginal rights, and
the duty to protect such rights. The rights are recognized in order to secure an alliance
with the various Indian Nations. The duties of the Crown are admitted because these
nations live under the protection of the Crown. In identifying this special relationship, the
Proclamation uses trust language, reserving vast tracts of land for the use and benefit of
the Indians. (Trust Study, pp. 87,92)
The report went on to describe the progression of the special relationship in the follow-
ing terms:
The Crown assumed a special responsibility for the protection and management of Indian
proprietary interests;
Control over the administration and alienation of Indian lands and Indian property rested
with the Crown;
Indian property in the hands of the Crown was held for the use or benefit of Indians; and
The Crown in exercising control over Indian property was a guardian or trustee of the
Indian interest. (Trust Study, p. 172)
As colonial governments within Canada grew strong, they began to extend jurisdiction
unilaterally and take Indian lands, often without consent. This is reflected in legislation and
judicial decisions beginning in 1850 and continuing well into the twentieth century. In this
period the federal government’s failure to honour trust obligations undermined the position
of Indians in Canada. Instead of protecting Indian property from the encroachment of oth-
ers, and despite legal procedures designed for this purpose, the government permitted a
steady erosion of the Indian Nations’ land base. Bands did not receive a proper return when
their land was sold; on occasion, they received nothing. Instead of preserving hunting and
fishing rights, the federal government permitted these rights to be limited by legislation and
allowed or encouraged development of lands in ways that made it impossible for Indian
people to pursue their traditional ways of living. Indians were not compensated for the result-
ing loss of livelihood. Many tragic examples of the federal government’s failure to protect
Indian interests were cited before the Committee.
Although Canada has now entered an era of re-evaluation, in which the worst abuses of
the past have come to be rejected, both Indian peoples and non-Indians continue to live with
a “legacy of betrayal and bitterness”, to quote one of the witnesses before the Committee.
(Sub 10:30) The people of many First Nations live in poverty, their land and resource base
eroded. The trust accounts were intended to provide part of the economic base for Indian
First Nations. Today, most are sadly inadequate for that purpose.
The legal aspects of the situation remain ambiguous at best. Recent attempts by Indian
people to obtain redress in the courts have failed, though the legal questions are not fully
settled. Recently, the federal government argued that it would not compensate the Mus-
queam Band for losses arising from the rental of band land at well below market value. The
government asserted that it had no legal duty—it was subject only to a “higher”, but unen-
forceable, “political trust”.
For all these reasons, the Committee has called throughout this report for a new
approach to the special relationship. The Committee has proposed that there be an affirma-
tion of the federal government’s support for First Nations’ authority over their lands and of
their right to survive and develop within the Canadian federation. A renewed relationship
could be possible, given recognition of self-government and guarantees of assured funding.
The federal government’s primary responsibility would be to promote self-government in a
manner that respects the rights and interests of Indian First Nations.
Old, distorted, paternalistic notions about the ‘protection’ of Indian people and nations
must be discarded. The elements of the new relationship would be as follows:
recognition of Indian First Nation governments, with powers and jurisdiction appro-
priate to a distinct order of government within the Canadian federation;
fiscal arrangements suited to self-governing entities;
a secure economic base, including land, water and resource rights, which, together
with educational and community services appropriate to modern society, would
strengthen the culture and economy of First Nations;
equitable settlement of claims to restore capital trust accounts, resources and lands
to the First Nations; and ‘
legally enforceable agreements between the federal government and First Nations to
implement the new arrangements.
Together, these elements constitute the Committee’s central proposal—a proposal by which
the federal government could “brighten the covenant chain”, a phrase the Haudenosaunee
used as a symbol of the process of renewing government-to-government relationships. (Spe-
cial 31A:7-8)
49. The Committee asserts that the special relationship between the federal government
and Indian First Nations must be renewed and enhanced by recognizing the right of First
Nations to self-government and providing the resources to make this goal realizable. This
will require that the duties and responsibilities of the federal government to Indian First
Nations be defined in the Constitution and in legislation and that they be legally enforce-
able.
An analogy can be drawn with the situation of trusteeship under international law. The
Canadian Indian Lawyers’ Association cited the United Nations Charter on Non Self-Gov-
erning and Trust Territories, Chapter XI, Article 73, which reads as follows:
Members of the U.N. which have or assume responsibilities for the administration of terri-
tories whose peoples have not yet attained a full measure of self-government recognize the
principle that the interests of the inhabitants of these territories are paramount and accept,
as a sacred trust, the obligation to promote to the utmost. . . the well-being of the inhabi-
tants of these territories and to this end; (a) to ensure, with due respect for the culture of
the people concerned, political, social and educational advancement, just treatment and
protection against abuse; and (b) to develop self-government, to take due account of the
political aspirations of the people and to assist them in the progressive development of
their free political institutions according to the particular circumstances of each territory,
its peoples and their various stages of advancement.
Although the First Nations have a political relationship with Canada different from that of
the U.N. trust territories, the federal government has the same obligations as those listed
above.
Advocacy of Interests and Protection of Rights
Witnesses before the Committee called for the federal government to take a new view of
its role in relation to Indian First Nation rights. It has a responsibility, based on section
91 (24) of the Constitution Act, 1867, to further the interests of Indian First Nations:
It is incumbent on the federal government that, even when it is contrary to other aspects of
its interests to do so, it should uphold the interests of its wards. In this case, the preserva-
tion of our aboriginal rights, the promises of treaty, the dictates of a colonial policy. ..
have paramountcy over other federal government obligations and duties. (McLeod Lake
Band, Special 20:44)
While rejecting the view that Indian nations or peoples are ‘wards’, the Committee
agrees that the federal government has an obligation to act in the best interests of First
Nations, as those interests are perceived by Indians themselves. Aboriginal and treaty rights
are constitutionally entrenched and must be protected. When disputes arise, such as prosecu-
tions under provincial laws governing hunting or fishing, or requests are received for help for
a First Nation whose treaty lands are being flooded or used in other ways incompatible with
Indian rights, the federal responsibility should be two-fold. The federal government should
first ensure that Indian people are able to present their own arguments in defence of their
interests. This subject is addressed later in this chapter. Secondly, the federal government
should be prepared to intervene on the side of Indian interests against competing claims,
when called upon to do so. Advocacy of Indian rights and interests rests primarily with the
First Nations, but federal support should be available to reinforce the Indian view.
Ideally, the Minister of State for Indian First Nations Relations would be the person
responsible for the quality of the relationship between the First Nations and other orders of
agreements, to make efforts to promote the well-being of the First Nations, and to defend
their interests against encroachment by other governments or interests.
Despite these efforts, some situations will probably lead to conflicts between the inter-
ests of the First Nations and federal government policies on other matters. Even in this
instance, where the actions of another arm of the federal government diverge from the rights
of First Nations, there should be continuing support for Indian First Nations. The Minister
competing interests. In the case of Pyramid Lake Paiute Tribe v. Morton, the United States
District Court considered the actions of the Secretary of the Interior in relation to the alloca-
tion of scarce water between an irrigation scheme and a desert lake owned by the Pyramid
50. The Committee recommends that the responsibilities of the Minister of State for
Indian First Nations Relations include the duty to promote the interests of First Nations.
Where there are competing interests, it should be the specific duty of the Minister to pro-
tect the rights of Indian First Nations against encroachment by other governments or inter-
ests.
In view of the history of relations between the federal government and Indian First
Nations, a monitoring agency may also be needed. This office or commission should be sepa-
rate from the Ministry of State and independent of all government departments. Its role
would be to ensure that the federal government was carrying out its responsibilities toward
Indian First Nations. The commissioner should report to Parliament.
The legislative ombudsman is one who is accountable to the legislature, appointed on a
non-partisan basis for a definite, long term, removable only by the legislature and whose
jurisdiction extends to all administrative authorities, and to the highest officials operating
under the jurisdiction of legislation duly enacted.*
* Donald C. Rowat, The Ombudsman Plan: Essays on the Worldwide Spread of an Idea (Toronto: McClelland
and Stewart Ltd., 1973), p. 25.
An ombudsman generally has no enforcement powers:
…The classic ombudsman is (1) legally established, (2) functionally autonomous, (3)
external to the administration, (4) operationally independent of both the legislature and
the executive, (5) specialist, (6) expert, (7) non-partisan, (8) normatively universalistic,
(9) client-centered but not anti-administration, and (10) both popularly accessible and vis-
ible. The institution’s mission is to generate complaints against government administra-
tion, to use its extensive powers of investigation in performing a post-decision administra-
tive audit, to form judgments that criticize or vindicate administrators and to report
publicly its findings and recommendations but not to change administrative decisions.
Indeed, one of the institution’s most interesting puzzles is its apparent effectiveness despite
minimal coercive capabilities.**
**Larry B. Hill, The Model Ombudsman.’ Institutionalizing New Zealand’s Democratic Experiment (Princeton,
N.J.: Princeton University Press, 1976), p. 12.
If enforcement or the power to take legal action were added to these functions as some
witnesses suggested, a different model might be needed. The structure of the commission, the
manner in which it would monitor the special relationship, and its powers to deal with prob-
lems arising from governmental actions should be developed through discussions between the
federal government and representatives of Indian First Nations.
51. The Committee supports the principle of establishing an independent officer to
monitor and report to Parliament on official actions affecting Indian First Nations. The
structure and powers of this office should be decided through negotiations between the fed-
eral government and designated representatives of Indian First Nations.
Many witnesses called for the creation of an agency to promote and protect Indian First
Nation rights. They drew attention to the concept mentioned in the Declaration of First
Nations, a Treaty and Aboriginal Rights Protection Office:
We support the establishment of a Treaty and Aboriginal Rights Protection Office to
ensure that Canada’s responsibility to Indians is paramount in assessing any activities
undertaken or approved by other levels of government in Canada.
Parliament must take steps to ensure that Canada’s responsibility to Indians takes prece-
dence over any other activity of Canada or the provinces, and the Treaty and Aboriginal
Rights Protection Office must be empowered to see that these responsibilites are met.
(Dakota Nations, Special 12:121)
The Special Committee of the Northwest Territories Legislative Assembly on Constitu-
tional Development recommended that “a mechanism to protect aboriginal rights be estab-
lished and included in the institutions of government, once aboriginal rights settlements are
concluded.” (Special 28:13) The Honourable George Braden, leader of the elected executive
government of the Northwest Territories, told the Committee that a protection office is espe-
cially relevant in light of the identification and definition of aboriginal rights in the ongoing
constitutional process and that this was an area requiring further study. (Special 28:18)
The Federation of Saskatchewan Indian Nations noted:
In the past, most of the intended legislative and administrative protections for Indian
nations have proven impotent in ‘their treatment of land claims, entitlements, resource
development and redress, property and territorial jurisdiction, treaty enforcement and
Crown trusteeship of these rights. Because of these problems, an institution must be estab-
lished to protect Indian rights against further attrition. . . (Special 11:18)
The supporters of the concept had many different views about the functions of such an
office. For some, investigation of complaints concerning violations of Indian First Nation
rights was important. The independent officer recommended earlier in this chapter would
exercise such investigative powers.
Advocacy of Indian First Nations’ rights is an important goal to be promoted. Effective
representation of First Nations’ interests, particularly in aboriginal and treaty rights cases
and other litigation relating to Indian lands and resources, would be significant in ensuring
respect for First Nations’ rights within the Canadian legal system. An organization provid-
ing legal assistance to First Nations would help to develop a new body of legal precedents.
With funding at a level comparable to that available to opposing interests in litigation, it
could help to bring equity to the legal process. The Native American Rights Fund in the
United States is an example of a non-governmental organization fulfilling the function; its
work has contributed significantly to recent legal developments in the United States. An
advocacy office under Indian auspices would enable First Nations to defend their rights and
interests. It should be independent of the federal government, except for the provision of
funding.
52. The Committee recommends that the federal government make available funds for
an advocacy office to be established under Indian auspices. Funds would be provided to
enable the office to represent Indian First Nations’ interests in legal disputes affecting their
rights.
The Trust Accounts
The “Indian moneys” or trust accounts held by the Department of Indian Affairs and
Northern Development for the “use and benefit” of bands are a small but significant manife-
station of the trust relationship. Trust accounts were originally established to provide a con-
tinuing economic base for First Nations. When any part of the lands reserved for a band was
surrendered and sold, or when resources on reserve lands were sold, the proceeds were to be
held in these accounts to finance present and future activities of the band.*
* The following discussion is drawn from pp. 12-71 of the Trust Study.
Until recently, these proceeds from the sale of lands were the main source of funds to
each band’s capital account. In the last ten years, as a result of oil and gas royalties flowing
into the capital accounts of a few bands, the overall trust fund balances have climbed
dramatically.
Band trust funds are now held and accounted for by the Department of Indian Affairs
and Northern Development under two headings: capital trust accounts and revenue trust
accounts. In addition to band accounts, the Department also holds individual accounts for
minors, unsettled estates, mentally incompetent persons, guardianship cases and missing
heirs. Most minors’ trust funds originate from per capita distributions from the capital
accounts of the bands.
The administration of trust funds is governed by the Indian Act and the Financial
Administration Act. Under Section 69 of the Indian Act, which provides the main guidelines
for distribution of band revenue trust funds, an Indian band can “control, manage and
expend in whole or in part its revenue moneys”; 75 per cent of Indian bands have been
authorized to manage their revenue moneys.
These trust funds constitute a liability of the government of Canada and are held in the
Consolidated Revenue Fund. Essentially, the Department acts as a bank or trust company,
paying interest at a rate based on the average yield of twenty Government of Canada bond
issues. As of March 31, 1980 there was $236 million in the capital accounts and $31 million
in the revenue accounts. Growth in a few accounts has been quite rapid and, by the spring of
1983, the trust fund liability was over $365 million. Statistics on the individual trust
accounts are more difficult to obtain. As of March 31, 1981, there were 1,041 estate
accounts, with a total fund balance of $1,371,136, and 8,917 savings accounts with a total
fund balance of $9,543,958.
The research consultants engaged by the Committee determined that the total for both
capital and revenue accounts was about $366 million as of March 1983. The overwhelming
majority ($326 million) accrued to bands in Alberta. British Columbia bands had close to
$22 million held in trust on their behalf, with the remaining $18 million distributed among
Indian bands in the other eight provinces.
The great bulk of band trust funds accrue to the benefit of a very few bands. Four
Alberta bands with a total membership of just over 8,000 people have trust funds that
together total over $260 million, or $32,000 per capita, and constitute over 70 per cent of the
total Indian trust account balances. At the other extreme, 121 bands, with an average popu-
lation of nearly 500 per band, have less than $4,000 each in their trust accounts, or $8 per
capita. The median band is in the $16,000 to $32,000 range; their trust accounts contain an
average of $45 per band member.
In their origin, trust funds were intended to provide an economic base. It is clear that
trust funds represent a significant financial interest for only a very small portion of the
Indian population. This situation led the Committee’s consultants to conclude that:
The distribution of trust assets, as they now stand, would not be an adequate financial
base for self-government . . . the settlement of claims and the better assessment of opening
balances might well change the ability of different bands to sustain their own budgets.
(Trust Study, p. 62)
The consultants were asked to comment particularly on why the Auditor General had
reported in 1980 that he had been unable to audit the trust funds. They reported as follows:
It is their submission that the basic reason why the Auditor General has been unable to
audit the trust funds goes beyond the lack of records, the high cost of doing such an audit,
and the lack of staff available to do the work. They submit that the fundamental question
at issue is beyond the competence of auditors as such. That question is the determination
of the opening balance in each trust account, and an evaluation of the fair market value of
each sale of land or resources leading to a deposit into a capital account. This, they feel, is
a study which is necessarily done by historians and lawyers. (Trust Study, p. 13)
Such a study would be an enormous undertaking. Although the British government
began keeping track of Indian land and trust fund transactions in the early nineteenth cen-
tury, early records are incomplete and difficult to decipher. Methods of accounting have
changed over the years and cannot easily be compared to modern standards and systems.
There have been some studies of the transactions behind the trust accounts:
. . . the history of the Land Management Fund by Pacey. . . provides a century-long his-
torical account behind the opening balances of the present book-keeping. It documents
innumerable frauds and abuses; excessive commissions; disbursements for purposes which
do not appear to relate properly to the purpose of the trust; sales with parties who were
clearly involved in gross conflicts of interest; and every other form of impropriety available
to an irresponsible trustee. The opening balances with which this following study deals are
the amounts left over after this sort of mismanagement. (Trust Study, p.15)
The insignificant amount now in most trust accounts strengthens the Committee’s con-
clusion that high priority should be given to the equitable settlement of any claims. Settle-
ments would be a major contribution to the capital base of Indian First Nations and would
promote self-sufficiency. The following discussion and recommendations, concerning future
management and the role of trustees in relation to capital and revenue accounts, must
accordingly be understood as being without prejudice to the assessment of the balances and
settlement of other claims.
The Department of Indian Affairs and Northern Development has responsibility for
both program delivery and trust fund activity. These two functions give the Department a
dual objective and raise an unresolved question: who is the client? Is the Department of
Indian Affairs and Northern Development accountable to Parliament for public funds or
accountable to Indian people as a trust fund manager?
An official from the Auditor General’s office, commenting on the trust funds, noted
that “departmental managers did not have a common interpretation of what the Depart-
ment’s role was” and elaborated as follows:
One of the basic principles of accountability is that the objectives of an organization be
clearly stated. In the case of the Department of Indian Affairs and Northern Develop-
ment, there was a confusion in the mandate of the Department. Specifically, should the
funds be used by the Department to seek economic and social gains for Indian people or
should the Department simply distribute these funds equitably to native people as they
pursue their own objectives? There is a very major difference between these two orienta-
tions, and we believe that has to be clarified before you can establish a structure for
accountability. (House of Commons, Standing Committee on Public Accounts 27:10,
March 24, 1981) ,
Originally, revenue from capital accounts was used by the Department, as trustee, to
pay for services provided to Indian people. Indian programs now require federal funds, and
for those moneys the Deparment is accountable to Treasury Board and Parliament, accord-
ing to the laws and guidelines set for all government programs.
On the other hand, trust funds must legally be disbursed according to the terms of the
Indian Act, with the Minister acting like a ‘statutory trustee’. The Act states that Indian
moneys may only be spent for the benefit of the Indians or bands for whom the funds are
held. For expenditures of capital, a band council resolution is required, although the band as
a whole need not consent. In all cases, however, the Minister (or, more accurately, the Cabi-
net) has the power to exercise discretion in the use of funds. Subject to the terms of the Act
and any relevant treaties or surrenders, he may determine whether a purpose is for the “use
and benefit” of the band.
Administering federally funded programs and managing trust funds are two very differ-
ent roles, requiring different exercises of judgement. In recent years, the two functions have
become confused, and uncertainty as to the Department’s role and objectives has arisen.
Legal problems may also arise. One specific concern has been per capita distribution to
band members. The departmental Management Improvement Project (Trust Fund Manage-
ment) noted:
With regard to the expenditure process, current activities concerning the expenditure of
capital moneys are incompatible with the direction of the Indian Act. At this time, that
Act does not permit the management of these funds in any manner by anyone other than
the Crown. In 1981, total capital expenditures were about $200 million, while over $20
million of this was for per capita distributions to band members. Where the latter con-
cerned distributions to minors, which could have amounted to $10 million or more for
1981 alone, the Crown is vulnerable to prosecution for breach of trust, as these moneys
traditionally have been improperly paid to the parents.
The authors concluded that the Department is becoming more and more vulnerable to suc-
cessful legal prosecution by bands and individual Indians on grounds of breach of trust.*
* DIAND, MIP 2.3 (August 1, 1982), Executive Summary.
The policy of devolution to bands may also leave the Department open to suit for breach
of its statutory duties. Policies conflict with statutory standards, and the laws themselves—
the Indian Act and the Financial Administration Act—conflict.
For these reasons—conflicting standards and the incompatible roles of trustee and pro-
gram administrator—change is needed. In any event, the Department is ill-equipped to func-
tion as a bank. The researchers thus concluded that the Department’s trust fund manage-
ment role should be separated from its program delivery functions. The Committee is of the
view that the trust fund management role should be phased out as First Nations are recog-
nized as self-governing. Holding the Minister responsible for managing Indian band moneys,
as if Indian people were incapable of doing so themselves, is the antithesis of self-govern-
ment.
The earlier discussion of the origin and purpose of the trust accounts should indicate,
however, that a simple pay-out of moneys to First Nation people or governments would be
inappropriate, at least in the case of the capital accounts. These accounts were accumulated
for the First Nations to provide a financial base for the future, and there are still future gen-
erations to consider.
53. The Committee recommends that the revenue trust funds be transferred from the
Department of Indian Affairs and Northern Development direct to each First Nation for
administration by its government. Capital trust funds, however, should be transferred to a
trust management system designated by the First Nation concerned and consistent with the
original purpose of the trust accounts—that is, the use and benefit of the people of the First
Nation. Transfers should be made following recognition of a First Nation having a govern-
ment accountable to and supported by its membership.
It would be the responsibility of the First Nation to arrange for and legally establish a
suitable trust administration or investment plan. The trustee could be a trust company, a
trust organization established by a group such as the Assembly of First Nations or other
Indian organization, or an investment firm.
The Minister would then have discharged his obligations as manager of those trust
moneys and would no longer be accountable to Parliament or to the First Nation in respect
of their management. He would be relieved of any future responsibility for the management
of the transferred funds, effective from the date of the transfer. This would not preclude a
First Nation making claims against the government on the basis of mismanagement or other
breach of trust up to the time of the transfer. Such matters are a proper subject for settle-
ment through the new claims resolution process recommended by the Committee.
54. The Committee recommends that, once funds are transferred, the Minister of Indian
Affairs be relieved of any future responsibility for their management, but that the transfer
be made without prejudice to.claims regarding the amount of the funds and the way funds
were managed prior to the transfer.
CHAPTER 10
CONCLUSION
The Future of the Department
This report is based on a major sounding of the views of the Indian peoples of Canada.
The Committee heard a cross-section of Indian opinion and concern from one end of the
country to the other. Experts were consulted. Legal advice was obtained. The Committee
members drew on their own experience and feelings.
The Committee is strongly convinced that a major change in the orientation of federal
policy must occur. The federal government must establish new relationships that will enable
Indian peoples to break out of the vicious circle of dependency, poverty and despair that now
grips them. There is little benefit to be gained by tinkering with the Indian Act or adjusting
the present policy of devolution.
The Committee has recommended that the federal government recognize Indian First
Nation governments as a distinct order of government within the Canadian federation. It has
proposed fiscal arrangements that would assure these governments of adequate funding to
provide government services, correct infrastructure deficiencies, and undertake economic
development. It has urged the adoption of a new claims settlement policy and a process for
expediting their resolution.
To carry out these new policies, the Committee has proposed a number of new federal
institutions and processes:
To manage and co-ordinate the federal government’s relations with Indian First
Nations, there should be a Ministry of State for Indian First Nations Relations. The
Minister should have the duty to promote the interests of Indian First Nations.
Within the federal government, the Ministry of State should also be responsible for
funding First Nation governments for services they would provide, for economic
development, and for correcting deficiencies in community infrastructure.
A new agency should be set up to carry out the proposed new claims settlement
policy. .
A panel, jointly appointed by the federal government and designated representatives
of Indian First Nations, should be formed to consider requests for recognition of
Indian First Nation governments. Recognition would be formally confirmed by the
Governor General.
Responsibility for the trust funds should pass from the Minister of Indian Affairs to
Indian First Nations. Capital funds could be managed by Indian financial institu-
tions or private trust companies.
A small secretariat could facilitate negotiations between the federal government and
Indian First Nations.
A special commission responsible to Parliament should monitor complaints and
report annually on the state of the relationship between Indian First Nations and the
federal government.
The federal government should contribute to the support of an office to assist Indian
First Nations to protect their rights and interests through effective advocacy.
A new tribunal should be ‘put in place to adjudicate disputes between Indian First
Nation governments and other governments.
The Committee has also recommended new legislation that would put Indian First
Nations in a position to control their own affairs through recognized governments. The result
would be the demise of the programs relating to Indian people of the Department of Indian
Affairs and Northern Development. The program delivery functions of the Department and
the extensive monitoring requirements linked to them would disappear as First Nation gov-
ernments exercised responsibility for these services. Indian programs of other departments
would be similarly affected. Residual responsibilities of the Department would be assumed
by the new Ministry of State for Indian First Nations Relations and by the various small,
specialized agencies that the Committee is proposing.
55. As Indian First Nation governments exercise control over their own affairs, the
Committee strongly recommends that the programs of the Department of Indian Affairs and
Northern Development relating to Indian people be phased out. This process should be com-
pleted within five years. This recommendation does not affect the Department’s mandate for
northern development.
Parliament and the Indian Peoples
The Indian First Nation governments that the Committee has recommended be estab-
lished would relate to the federal government on a government-to-government basis. Under
such a political structure, a question arises as to how Indian First Nations might relate to
Parliament. A few countries provide for special representation of indigenous peoples or
dependent territories in their national legislatures, so as to ensure that those peoples or terri-
tories have an acknowledged voice in the national debate.
In New Zealand, which has a parliamentary system similar to Canada’s, the Maori peo-
ple elect four representatives to Parliament through direct elections in which only Maoris
may be candidates and only Maoris may vote. For this purpose the country has been divided
arbitrarily into four constituencies. The Maori Members of Parliament participate with full
rights. The system was devised in the 1860s as a temporary measure in anticipation that the
Maori people would be assimilated. Maoris today constitute about 10 per cent of the popula-
tion, and a few Maori representatives are usually elected by the normal electoral process as
well.
The United States has a different system. There is no federal representation for Indian
peoples, but some dependent territories–Guam and Puerto Rico for instance—each have
the right to a delegate in Congress, although their powers are restricted in that they cannot
vote in the House of Representatives. The District of Columbia is similarly represented in
the House. In practice, since the congressional committee system is strong, these special
members—who have the right to vote in committee—carry more weight than appearances
would suggest. At the state level, Maine makes provision for the representation of Indian
people in its legislature.
A few witnesses expressed support for special representation for Indian peoples in the
House of Commons:
We definitely need representation in the House of Commons. . . .They should be elected by
native people across the country. . .so that the rights that. . .we acquire down the road are
guaranteed. We are such a small minority in the Canadian political process today. (Cen-
tral Interior Tribal Councils, Special 18:35)
Most of those who expressed opinions, however, were sceptical of the value of special
representation:
We looked at the model of guaranteed seats which was available to the Maori
people. . . .That model was not successful. . . .Those guaranteed seats were then swallowed
up by the rest of the voting members and they did not have any direct consent over what
was to happen. (Association of Iroquois and Allied Indians, Special 16:28)
The research paper prepared for the Committee on the government of aboriginal peo-
ples (see Appendix F) concluded that the New Zealand model has a number of problems: the
Maoris are under-represented in Parliament; the elected representatives exercise little power;
and the system has weakened traditional Maori governmental structures.
56. The Committee believes that the best way to promote Indian rights is through Indian
self-government and not by special representation for First Nations in Parliament. Never-
theless, the situation of Indian peoples will change with self-government, and special
representation in Parliament might in future offer benefits that cannot now be anticipated.
Accommodating Diversity
In preparing this report, the Committee has been cognizant of international standards.
Canada is obliged to protect and promote the rights of the peoples of the Indian First
Nations in a manner consistent with the rights guaranteed in the international covenants
Canada has signed—the United Nations Covenant on Economic, Social and Cultural
Rights, the Covenant on Civil and Political Rights, and the Helsinki Final Act of 1975.
These agreements guarantee both the fundamental collective right of peoples to be self-gov-
erning and the basic human rights of individuals.
57. The Committee has concluded that the implementation of this report in its entirety,
legislatively and constitutionally, is the best means of satisfying international standards in
relation to Indian First Nations.
Internationally, there is an increasing awareness that the old approaches to indigenous
peoples have failed. The colonial mentality is being replaced with a recognition of fundamen-
tal human rights. Other countries with indigenous populations, such as Denmark, are seeking
alternatives to assimilation. In a federal state like Canada, which already accommodates so
much linguistic and cultural diversity, finding an alternative to assimilation should not be
difficult.
In the past the prevailing approach to indigenous peoples has been to hold up eventual
self-government as a reward for adapting to the customs of the dominant society. This
assumption must be turned on its head. Indigenous peoples will evolve and prosper only
under self-government.
Canada now has an opportunity to develop creative mechanisms, institutional arrange-
ments and legislation that could give the people of the Indian First Nations a productive
place in Confederation. Moreover, it is in Canada’s best interests to do so. Throughout his-
tory, nation-states that have accommodated diversity have been more stable and have lasted
longer.
The political status of indigenous peoples has already evolved substantially during this
century—from colonial dependency to a recognition of human and political rights. Canada
can resist this movement or it can offer leadership. The Committee believes that the recom-
mendations in this report would add a new dimension to Confederation and make Canada an
international leader in governmental relations with indigenous peoples.
58. The Committee requests that the government respond to this report in accordance
with Standing Order 69(l3). Because the Special Committee will cease to exist at the end of
the current parliamentary session, the Committee recommends that this response, once
tabled in the House, be automatically referred to the Standing Committee on Indian Affairs
and Northern Development. The referral of the government’s response to the Standing Com-
mittee would allow views to be presented on both the report and the government’s response.
A parliamentary follow-up procedure would thus be established.
I hope that we are psychologically prepared for this challenge. It has come upon us
rather suddenly and tends to shake the basis on which we have always thought about
our relationship with native people. I suppose, in a way, we tend to react like some-
body who has been standing on the other fellow’s toes for so long that we are indignant
when he wants to pull his foot out. I hope we can overcome this for his sake and ours.
—Dr. Lloyd Barber, former Commissioner of Indian Claims
CONCLUSIONS AND RECOMMENDATIONS
Note: The Committee’s conclusions and recommendations are grouped by subject. They do
not appear here in the same order as they appear in the text of the report, but the page num-
ber following each conclusion or recommendation indicates where it can be found in the text.
Throughout the report the Committee has used the term Indian First Nations to describe the
entities that would be exercising sel -government. Although the terms of reference refer to
“Indian self-government”, the majority of witnesses referred to themselves as members of
First Nations. In order to familiarize the general public with the term, the Committee
decided to use Indian First Nations in this report.
Self-Government
The Committee recommends that the federal government establish a new relationship with
Indian First Nations and that an essential element of this relationship be recognition of
Indian self-government. (p. 41)
The Committee recommends that the right of Indian peoples to self-government be explicitly
stated and entrenched in the Constitution of Canada. The surest way to achieve permanent
and fundamental change in the relationship between Indian peoples and the federal govern-
ment is by means of a constitutional amendment. Indian First Nation governments would
form a distinct order of government in Canada, with their jurisdiction defined. (p. 44)
While the Committee has concluded that the surest way to lasting change is through consti-
tutional amendments, it encourages both the federal government and Indian First Nations to
pursue all processes leading to the implementation of self-government, including the bilateral
process. (p. 46)
Legislation
The Committee recommends that any changes of policy possible under existing laws that
would enhance self-government and that are acceptable to designated representatives of
Indian First Nations be taken without waiting for the enactment of new legislation. It must
be the responsibility of First Nations themselves to select a method of designating repre-
sentatives to negotiate on their behalf. (p. 60)
The Committee does not support amending the Indian Act as a route to self-government.
The antiquated policy basis and structure of the Indian Act make it completely unacceptable
as a blueprint for the future. (p. 47)
The Committee rejects the Department’s band government proposal. Although there have
been years of consultation, there was no general agreement of Indian representatives, and the
proposal finally emerged from a unilateral government decision. (p. 47)
The Committee recommends that the federal government commit itself to constitutional
entrenchment of self-government as soon as possible. In the meantime, as a demonstration of
its commitment, the federal government should introduce legislation that would lead to the
maximum possible degree of self-government immediately. Such legislation should be devel-
oped jointly. (p. 50)
The Committee recommends that the federal government and designated representatives of
Indian First Nations jointly appoint and fund an independent secretariat to provide a neutral
forum for conducting negotiations between them. (p. 62)
The Committee is convinced that any legislation that could apply generally must offer a
framework flexible enough to accommodate the full range of governmental arrangements
that are being sought by Indian First Nations. (p. 48)
The Committee recommends three legislative measures:
1. The enactment of an Indian First Nations Recognition Act committing the federal
government to recognize Indian governments accountable to their people.
2. Legislation authorizing the federal government to enter into agreements with recog-
nized Indian First Nation governments as to the jurisdiction that each government
wishes to occupy. –
3. Legislation under the authority of Section 91(24) of the Constitution Act, 1867
designed to occupy all areas of competence necessary to permit Indian First Nations
to govern themselves effectively and to ensure that provincial laws would not apply
on Indian lands except by agreement of the Indian First Nation government.
With this legislation in place and supported by appropriate agreements, Indian First Nations
could be self-governing in areas in which they wish to legislate. (p. 59)
The Committee recommends that a Ministry of State for Indian First Nations Relations,
linked to the Privy Council Office, be established to manage and co-ordinate the federal gov-
ernment’s relations with Indian First Nation governments. (p. 61)
The Committee recommends that the federal government introduce legislation to implement
the Jay Treaty. (p. 78)
Membership
In the transition from the Indian Act to self-government, the Committee recommends that
the starting point be the band, with its membership newly defined. The federal government
should leave it to each band to decide whether its people would constitute themselves as an
Indian government, or would join with others to form an Indian government of which the
band would be a part. (p. 54)
The Committee asserts as a principle that it is the rightful jurisdiction of each Indian First
Nation to determine its membership, according to its own particular criteria. The Committee
recommends that each Indian First Nation adopt, as a necessary first step to forming a gov-
ernment, a procedure that will ensure that all people belonging to that First Nation have the
opportunity of participating in the process of forming a government, without regard to the
restrictions of the Indian Act. (p. 55)
Federal Responsibility
The Committee recommends that the federal government consider using a general list as a
means of providing special status to people who are Indian for purposes of Indian programs,
but who are not included in the membership of an Indian First Nation. (p. 56)
The Committee asserts that the continuing responsibilities of the federal government toward
Indian people, whether or not they become members of Indian First Nations, must be recog-
nized. The Committee urges federal, provincial and Indian First Nation governments, along
(a) demonstrated support for the new governmental structure by a significant majority
of all the people involved in a way that left no doubt as to their desires;
(b) some system of accountability by the government to the people concerned; and
(c) a membership code, and procedures for decision-making and appeals, in accord-
ance with international covenants.
The contents of the proposed Recognition Act should be developed jointly by the federal gov-
ernment and designated representatives of Indian First Nations. Aside from the development
of acceptable and workable legislation, the federal government should refrain from becoming
directly involved in community decisions about self-government. (p. 57)
The Committee recommends that one-time funding be made available to Indian bands to
assist them in developing their governments. The terms of such grants should be worked out
by agreement with designated representatives of Indian First Nations. (p. 62)
The Committee suggests that a small panel be appointed jointly by the Minister of State for
Indian First Nations Relations and designated representatives of Indian First Nations to
review requests for recognition and consider whether they meet the agreed criteria. (p. 61)
The Committee recommends that the Governor General affirm and record federal recogni-
tion of Indian First Nation governments that are accountable to their people and for which
significant support has been shown. (p. 61)
North of 60°
The Committee applauds all initiatives to design innovative government structures for the
North embracing all its peoples. The Committee’s recommendations focus primarily on the
geographically dispersed First Nations of southern Canada, but some of the ideas presented
in this report may beqhelpful to those working toward self-government in the North. (p. 63)
Scope of Powers
The Committee agrees that full legislative and policy-making powers on matters affecting
Indian people, and full control over the territory and resources within the boundaries of
Indian lands, should be among the powers of Indian First Nation governments. (p. 64)
The Committee therefore recommends that Indian First Nation governments exercise pow-
ers over a wide range of subject matters. The exact scope of jurisdiction should be decided by
negotiation with designated representatives of Indian First Nations. A First Nation govern-
ment should have authority to legislate in such areas as social and cultural development,
including education and family relations, land and resource use, revenue-raising, economic
and commercial development, and justice and law enforcement, among others. First Nation
governments may also wish to make arrangements with the federal and / or provincial govern-
ments to continue existing programs or services. (p. 64)
The Committee recommends the establishment of a specialized tribunal to decide disputes in
relation to agreements between Indian First Nations and other governments. Its structures,
powers and procedures should be jointly decided by the federal government and designated
representatives of Indian First Nations. (p. 67)
Economic Foundations
A new relationship between Indian First Nations and the federal government should ulti-
mately result in the provision of an adequate land and resource base and the settlement of
claims. Prospects for economic development would improve if the land base were expanded,
Claims were settled, and the control of resources on Indian lands were transferred to Indian
It is essential that Indian First Nations be able to get on with the task of economic develop-
ment without delay. (p. 76)
The Committee considers control of a strong economic base to be essential for the effective
exercise of Indian self-government. In planning for development of the economic base, the
people of an Indian First Nation should be able to set goals, define strategies and then act to
realize their potential. To do this they will require substantial funding. (p. 76)
Fiscal Arrangements
The Committee is entirely convinced that Indian self-government must be supported by new
funding arrangements that would enable Indian First Nation governments to decide how
best to meet their peoples’ needs. (p. 94)
Self-government requires that Indian First Nation governments be free to make policies and
to set their own priorities. To ensure that they exercise such powers responsibly and that the
people in turn are protected against wrongful use of -these powers, these governments must
also be accountable to those people. (p. 95)
The Committee recommends that future federal payments to Indian First Nation govern-
ments be in the form of direct grants. Such payments should be made to all Indian First
Nation governments recognized by the federal government as being accountable to their peo-
ple. (p. 98)
The alternative favoured by the Committee would be to fund First Nations government oper-
ations through a modified per capita formula. This would ensure equity and greatly facilitate
disbursement. It would be important to elaborate a formula that provides for adjustments,
since the relative needs of communities vary. The Committee is convinced that an acceptable
formula could be worked out between the federal government and Indian First Nations gov-
ernments. In addition, there might be funding for exceptional needs. (p. 100)
The Committee recommends that the global amount of funding for First Nations govern-
ment operations, for economic development, and for the correction of serious infrastructure
deficiencies be determined in negotiations between the federal government and designated
representatives of Indian First Nations. The Committee further recommends that Parlia-
ment be asked every five years to approve the global amount of funding by means of statute.
The structures and mechanisms through which the funds for each of these three categories
would be disbursed should also be settled by negotiation. (p. 101)
Lands and Resources
The Committee is convinced that, in order to ensure that self-government becomes a reality,
each Indian First Nation must have full rights to control its own lands in the manner it sees
fit. This would mean power to decide upon methods of land-holding and land management
on reserves. Such areas should be recognized as Indian lands. (pp. 108-109)
The Committee recommends that the federal government promote the constitutional change
necessary to recognize in law full Indian First Nation rights to the lands, waters and
resources of all areas now classified as reserves or in future considered as Indian lands. In the
interim, the Committee urges the federal government and designated representatives of
Indian First Nations to agree upon the measures now possibleito achieve these objectives.
(p.109)
The Committee recommends that there be an official Registry of Indian First Nation lands.
It would hold records of land under Indian First Nation control, to be distinguished from
federal and provincial lands. (p. 109)
Indian First Nation control of Indian lands is the first and most obvious move needed to pro-
mote self-government. Indians also call for recognition of certain rights based on treaties or
aboriginal title to traditional hunting and trapping areas. (p. 110)
In the past, external control has meant that Indian people have not shared fully in the finan-
cial benefits of revenues arising from development of such resources as minerals, oil and gas.
These revenues could have a significant effect in the development of a viable economic base,
enabling Indian First Nation governments to become self-sufficient. (p. 110)
The Committee recommends that any reinstatement of members mandated by the federal
government should include a review to determine the additional resources necessary to cover
the needs of reinstated people and to recommend a mechanism to provide them. (p. 111)
The Committee recommends that the federal government give high priority to providing a
land base for those Indian communities now without a reserve. (p. 112)
The Committee recommends that the federal government establish as a priority the fulfil-
ment of land entitlements and settlements of other claims. (p. 112)
The Committee recommends that the main way of expanding the land and resource base of
Indian Nation governments be through a just and effective land claims process. (p. 113)
The Resolution of Claims
The Committee is firmly convinced that there must be a new policy to promote the fair and
just resolution of outstanding claims consistent with the protection of aboriginal and treaty
rights in the Constitution. The federal government and designated representatives of Indian
First Nations should undertake negotiations regarding a new claims settlement process to be
set out in legislation. (p. 115) .
While the details of the new policy and process should be decided through bilateral negotia-
tions, the Committee does wish to set out certain principles that should be included. (p. 115)
It is imperative that the new process be shielded from political intervention. It should be set
out in legislation so that it cannot be readily changed. Claims should be negotiated between
the government and the claimant with a neutral party to facilitate the settlement. Where a
settlement cannot be reached, there should be access to a quasi-judicial process. For Indian
First Nation governments to participate effectively in claims negotiations, they must have
adequate financial support. Finally, under the new policy, pre-Confederation treaties and
other rights should be recognized, and claims should not be regarded as being superseded by
law. (p. 115)
The Committee recommends that the doctrine of extinguishment be eliminated from the set-
tlement of claims; settlement agreements should be limited to those matters specifically
negotiated. (p. 116)
The Trust Relationship
The Committee asserts that the special relationship between the federal government and
Indian First Nations must be renewed and enhanced by recognizing the right of First
Nations to self-government and providing the resources to make this goal realizable. This
will require that the duties and responsibilities of the federal government to Indian First
Nations be defined in the Constitution and in legislation and that they be legally enforce-
able. (p. 122)
The Committee recommends that the responsibilities of the Minister of State for Indian
First Nations Relations include the duty to promote the interests of First Nations. Where
there are competing interests, it should be the specific duty of the Minister to protect the
rights of Indian First Nations against encroachment by other governments or interests. (p.
123)
The Committee supports the principle of establishing an independent officer to monitor and
report to Parliament on official actions affecting Indian First Nations. The structure and
powers of this office should be decided through negotiations between the federal government
and designated representatives of Indian First Nations. (p. 124)
The Committee recommends that the federal government make available funds for an
advocacy office to be established under Indian auspices. Funds would be provided to enable
the office to represent Indian First Nations’ interests in legal disputes affecting their rights.
(p. 125)
The Trust Accounts
The Committee recommends that the revenue trust funds be transferred from the Depart-
ment of Indian Affairs and Northern Development direct to each First Nation for adminis-
tration by its government. Capital trust funds, however, should be transferred to a trust man-
agement system designated by the First Nation concerned and consistent with the original
purpose of the trust accounts—that is, the use and benefit of the people of the First Nation.
Transfers should be made following recognition of a First Nation having a government
accountable to and supported by its membership. (p p. 128-129)
The Committee recommends that, once funds are transferred, the Minister of Indian Affairs
be relieved of any future responsibility for their management, but that the transfer be made
without prejudice to claims regarding the amount of the funds and the way funds were
managed prior to the transfer. (p. 129)
Conclusion
As Indian First Nation governments exercise control over their own affairs, the Committee
strongly recommends that the programs of the Department of Indian Affairs and Northern
Development relating to Indian people be phased out. This process should be completed
within five years. This recommendation does not affect the Department’s mandate for north-
ern development. (p. 134)
The Committee believes that the best way to promote Indian rights is through Indian self-
government and not by special representation for First Nations in Parliament. Nevertheless,
the situation of Indian peoples will change with self-government, and special representation
in Parliament might in future offer benefits that cannot now be anticipated. (p. 135)
The Committee has concluded that the implementation of this report in its entirety, legisla-
tively and constitutionally, is the best means of satisfying international standards in relation
to Indian First Nations. (p. 136)
The Committee requests that the government respond to this report in accordance with
Standing Order 69(l3). Because the Special Committee will cease to exist at the end of the
current parliamentary session, the Committee recommends that this response, once tabled in
the House, be automatically referred to the Standing Committee on Indian Affairs and
Northern Development. The referral of the government’s response to the Standing Commit-
tee would allow views to be presented on both the report and the government’s response. A
parliamentary follow-up procedure would thus be established. (p. 136)
APPENDIX A
WITNESSES WHO APPEARED BEFORE
THE SUB-COMMITTEE AND THE SPECIAL
COMMITTEE ON INDIAN SELF -GOVERNMENT
ALBERTA
Morley (November 29, 1982)
*Indian Association of Alberta
Mr. Charles Wood, President
Mr. Sam Bull, Treaty 6 Vice-President, Indian Government Portfolio
Mr. Wallace Manyfingers, Indian Government Advisor
Ms. Sharon Venne, Legal Advisor
Chief John Snow, Wesley Band
* Wesley Band
Elder Peter Mark Wesley
*Stoney Indian Tribe
Chief Bill Ear, Sr., Bearspaw Band
Chief Frank Powderface, Chiniki Band
Chief John Snow, Wesley Band
Councillor John Lefthand, Eden Valley Reserve
*Blackfoot Band
Chief Roy Little Chief
Councillor Doug Bearhat
Councillor Mildred Broad Scalplock
Councillor Russel Wright
(* Asterisk denotes those who appeared before the Sub-committee.)
Elder Jack Big Eye
Elder Mathew Melting Tallow
Councillor Percy Yellow Fly
*Sarcee Nation
Chief Clifford Big Plume
Peter Manywounds J r., Consultant
Fred Eagletail, Band Councillor
*Peigan Band
Councillor Wilf McDougall
Chief Nelson Small Legs
Mr. Albert Yellow Horn Sr., Researcher
Councillor Percy Smith
*Blood Tribe
Councillor Annie Cotton
Chief Roy Fox
Councillor Chief Keith Moon
Councillor Wayne Wells
Edmonton (November 30 and December 1, 1982)
*Alberta Native Women’s Association
Mrs. Ruth Gladue,President
*Hobbema Four Bands
Chief Leo Cattleman, Montana Band
Mr. Wilton Littlechild, Legal Counsel
*Tribal Chiefs of Northeastern Alberta
Chief Gordon Gadwa, Chairman, Kehewin Tribe No. 123
Chief Marcel Piche, Cold Lake Tribe No. 149, No. 149A, No. 149B
*Alberta Council of Treaty Women
Mrs. Annie Cotton, Blood Band
Mrs. Helen Gladue, Executive Secretary
Mrs. Veronica Morin, Enoch Band
Mrs. Roslyn Manywounds, Sarcee Band
Mrs. Lucy Cotton, Blood Band
*Indian Association of Alberta
Mr. Charles Wood, President
*Fort McKay Indian Band
Councillor Jim Boucher
*Yellowhead Tribal Council
Mr. Richard Arcand, Executive Director
Chief Howard Mustus
Councillor Thomas Potts
*Fort McMurray Band
Mr. George Haineault
*Métis Association of Alberta
Mr. Clifford Gladue, Chairman of the Constitution Committee
Slave Lake (December 2, 1982)
*Chiefs and Councils of Treaty 8
Mr. Clifford Freeman, Vice-President
Chief Walter Twinn, Chief of Sawridge Band and
President of the Lesser Slave Lake Regional Council
Mr. David Fennel, Legal Counsel
Professor David Jones, Legal Counsel
Chief Harry Chonkolay, Dene Tha Band
Mr. Simon Waquan, Interpreter, Fort Chipewyan Cree Band
Chief Lawrence Courtoreille, Fort Chipewyan Cree Band
Chief William J. Beaver
Councillor Leonard G. Alook
Mr. Adrian Yellowknee, Band Education Authority, Big Stone Cree Band
Chief Bernard Ominayak ;
Mr. Fred Lennarson, Advisor, Lubicon Band
*Indian Association of Alberta
Mr. Charles Wood, President
Mr. Sykes Powderface, Parliamentary Liaison
BRITISH COLUMBIA
Nanoose (February 14, 1983)
First Nations of South Island Tribal Council
Elder Abel Joe
Chief Thomas Sampson, Tsartlip Band, Chairperson
Chief Wilson Bob, Nanoose Band
Chief Mark Recalma, Qualicum Band
Chief Dennis Alphonse, Cowichan Band
Mr. Gus Underwood, Economic Development Advisor
Councillor Philomena Alphonse, Cowichan Indian Education
Mr. Phillip Paul, Saanich School Board Administrator
Chief Andy Thomas, Esquimalt Band
Nuu-Chah-Nulth Tribal Council
Mr. George Watts, Chairman
Chief Simon Lucas, Heshkwiatt Tribe
Chief Mike Maquinna, Muachat Tribe
Chief Sarah Cootes, Huchakthisat Tribe
Chief Hugh Watts, Hupachesaht Tribe
Chief Art Peters, Hoayat Tribe
Chief Dan David, Kayukwat Tribe
Chief Charlie Thompson, Niitiinat Tribe
Bernice Touchie, Yulthuilthat Tribe
Chief Bert Mack, Tukwaat Tribe
Mr. Francis Smith, Iihatisat Tribe
Chief Archie Frank, Ahoust Tribe
Kwakiutl Tribal Council
Mr. Basil Ambers, Chairman of the Executive
Chief David J . Hunt, Kwakiutl Band
Mr. Wedlide Speck, Special Assistant
Chief John Smith, Turner Island Band
Vancouver (February 15 and April 11, 1983)
Union of British Columbia Indian Chiefs
Chief Bob Manuel
Chief Gerald Etienne
Chief Saul Terry
Musqueam Indian Band
Chief Ernie Campbell
Mr. Jim Reynolds, Lawyer
Mr. Marvin Storrow, Lawyer
Mr. Andrew Charles, Band Member
Sto: Lo Nation
Chief Clarence Pennier, Scowlitz Band, Representative to the Confederacy of Nations
Chief Mark Point, Skowkale Band, Vice-Chairman of the Executive Committee
Chief Ron John, Chawathil Band, Member of the Executive Committee
Bella Coola District Council
Mr. Archie Pootlass, Chairman
Chief Lawrence Pootlass, Hereditary Chief
Chief Edward Moody, Nuxalk Band
Sechelt Indian Band Council
Chief Calvin Craigan
Mr. Graham Allen, Band Legal Advisor
Mr. Gilbert Joe, Chairman of Indian Local Government Committee
Councillor Stanley Earl Joe
Councillor Benedict Pierre
Mr. Gordon Anderson, Band Financial Advisor
Councillor Anne Quinn
United Native Nations
Mr. Bob Warren, President
Squamish Band
Chief Joe Mathias
Mr. Harry Slad, Legal Counsel
Indian Homemakers of British Columbia
Mrs. Rose Charlie, President
Mrs. Helen Jones
Mr. Tom Morris
Mr. John Sparrow
Mrs. Bernice Robson
Mrs. Rose James
Mr. Jack Patrick
The Alliance
Mr. Andrew Charles
Mount Currie Band
Chief Leonard Andrew
Mr. John Williams
Mrs. Mary Louise Williams
Mr. Albert Nelson
West Bank Mobile Park Owners’ Associations
Mr. Leonard Crosby
Prince Rupert (February 16 and 17, 1983)
North Coast Tribal Council
Mr. Johnson Gordon, Senator
Mr. Francis Lewis, President
Mr. Frank Parnell, Manager
Nishga Tribal Council
Mr. James Gosnell, President
Reverend Herbert McMillan, Elder, New Aiytansh
Reverend Percy Tait, Translator, New Aiyansh
Chief Councillor Alvin A. McKay, Lakalsap
Bishop John Hannen
Chief Councillor Rod Robinson, Vice-President, New Aiyansh
Mr. Stuart Leggatt, Legal Counsel
Mr. Bruce E. Cottingham, Advisor
Reverend Hubert Stevens, Vice-President and Chief Councillor of Kincolith
Kitamaat Village Council
Chief Councillor Gerald Amos
Chief Tom Robinson, Deputy and Hereditary Chief
Councillor Reg Smith
Councillor Morris Amos
Kitsumkalum Band
Chief Cliff Bolton
Kermode Friendship Society
Ms. Viola Thomas, Executive Director
Ms. Janice Robinson, Board of Director
Gitksan-Carrier Tribal Council
Mr. Neil Sterritt, President
Mr. Ken Muldde, Treasurer
Council of the Haida Nation
Grand Chief Percy Williams
Mr. Ernie Collison, Board Member
Massett Band Council
Councillor Frank Collison
Ms. Andrea Dickson, Band Manager
Skidegate Band Council
Mr. Miles Richardson Jr., Band Manager
Kamloops (April 12 and 13, 1983)
Central Interior Tribal Councils
Chief Mary Leonard, Kamloops Indian Band
Mr. John Jules, Kamloops Indian Band
Chief Ron Ignace, Deadmans Creek Indian Band
Chief Robert Manuel, Shuswap Nation Tribal Council
Mr. Don Moses, Chairman
Chief Gordon Antoine, Coldwater Indian Government
Chief Paul Sam, Kootenay Indian Area Council
Shuswap Nation Tribal Council
Chief Wayne Christian, Spallumcheen Indien Government
Chief Gerald Etienne, Bonaparte Indian Government
Chief Ron Ignace, Skeetchestn Indian Government
Chief Arthur Dick, Alkali Lake Indian Government
Chief Robert Manuel, Neskainlith Indian Government
Chief Mary Leonard, Kamloops Indian Government
Chief Paul Sam, Shuswap Indian Government
Chief Roy Christopher, Canim Lake Indian Government
Mr. Eddy Celesta, North Thompson Indian Government
Mrs. Evelyn Sargeant, Canal Creek Band
Mr. Robert Simon, Director
Neskainlith Indian Government
Mr. George Manuel, Spokesman
Mrs. Amy August, Elder Member
Chief Robert Manuel
Kamloops Indian Band
Chief Mary Leonard
Councillor Clarence T. Jules
Councillor John T. Jules
Westbank Indian Band
Chief Ronald M. Derrickson
British Columbia Native Women’s Society
Mrs. Mildred Gottfriedson, President
Mrs. Muriel Sasakamoose, Executive Director
Pavilion Indian Band
Chief Marvin Bob
Councillor Fred Alec
Councillor Desmond Peters
Councillor Sharon Edwards
Fountain Indian Band
Chief Roger Adolph
Elder Sam Mitchell
Elder Victor Adolph
Elder Louis Williams Bob
United Native Nations—Zone 8
Mrs. Bertha Phelon
Mr. Tom Anaquod
Laichkwiltach State
Mr. George Quocksister, Head of State
Mr. Kwag-Kwag-Wa-La-Glese Cla-Qua-Sum Kwasistala, Emissary
Ms. Candy-Lea Chickite, Secretary
Kamloops Petition Group
Mrs. Mildred Gottfriedson, Kamloops Indian Band Member
Mrs. Fay Jules, Kamloops Indian Band Member
Mr. Ernie Thomas, Kamloops Indian Band Member
Kootenay Indian Area Council
Chief Sophie Pierre, St. Mary’s Band, Co-ordinator
Prince George (April 14, 1983)
Carrier-Sekani Tribal Council
Elder Andrew Louie, Stellaquo Band
Mr. Edward John, Legal Advisor
Mr. Justa Monk, President
Chief Donimic Frederick, Fort George Band
Elder Celena John, Stuart-Trembleur Band
Elder Theresa Frederick, Fort George Band
Mr. Joseph Michell, Managing Director
Chief Ray Izony, Ingenika Band
Councillor Albert Poole, Ingenika Band
Councillor Gordon Pierre, Ingenika Band
Mr. Archie Patrick, Executive Director
Elder Leonard Thomas, Bans Manager, Necoslie Band
McLeod Lake Indian Band
Chief Harry Chingy
Councillor Les Chingy
Ms. Deborah Hoggan
Ms. Louise Mandell, Legal Advisor
Fort Babine Band
Chief Garnet Williams, Chairman of the Fort Babine Separation Committee
Councillor John Madam
Mr. Pat Mitchell, Manager, Fort Babine Native Fisheries Project
Councillor Aggie Michell, Chairman of Fort Babine Education Committee
Mr. James Sayre, Legal Advisor
Mrs. Ellen Stanley, Member of Fort Babine Education Committee
Cariboo Tribal Council
Chief Alice Aby, Williams Lake Indian Band, Shuswap Indian Government
Chief Gabriel Rly Christopher, Ganimn Lake Band, Shuswap Indian Government
Chief Denis Patrick, Nazko Band, Southern Carrier Nation
Chief Doreen Sellars, Soda Creek Band, Shuswap Indian Government
Chief Frank Boucher, Jr., Quesnel Band, Southern Carrier Nation
Chief Evelyn Sargent, Canoe Creek Band, Shuswap Indian Government
Ms. Charlene Billeau, Shuswap Nation
Deni Chiefs of the Chilcotin and the Southern Carrier
Chief Ray Hance
Chief David Quilt
Ms. Louise Mandell, Legal Advisor
Chief Cassidy Sill
Quesnel Community Law Center
Mr. A. Brendan Kennedy
Fort St. John (April 15, 1983)
Kaska Dena Tribal Council
Mr. Peter Stone, Chairman
Mr. George Miller, Vice-Chairman
Mr. Charlie Pete, President, United Native Nations Local 143
City ofFort St. John
Mayer Brian Palmer
Treaty 8 Tribal Council
Mr. Bud Napoleon, President
Councillor Clarence Apsassin, Blueberry Band
Councillor Amy Gauthier, East Moberly Lake Band
Chief George Behn, Fort Nelson Indian Band
Fort Nelson Indian Band
Chief George Behn
Councillor Carol Dickie
Mr. Angus Dickie, Band Member
Mr. Bob Hall, Band Manager
MANITOBA
Long Plain (January 18, 1983)
Southeast Resource Development Council
A Chief Jim Bear, Chairman of the SERDC Board of Directors
Dakota Ojibway Tribal Council
Chief Ernie Daniels
Mr. Rufus Prince, Band Member
Chief Allan Pratt
Mr. Don Graveson, Director, Economic Development
Mr. Gerald Kubb, Superintendant, Education
Manitoba Indian Agricultural Program Inc.
Mr. Edward Anderson, Executive Director
Mr. Bob Green, Program Manager
Association of Tribal Councils of Manitoba
Chief Ernie Daniels
Mr. Alfred Everett
Winnipeg (January 19, 1983)
Manitoba Indian Education Association
Mr. Bill Thomas, Chairman of the Board
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
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
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
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
NEW BRUNSWICK
Fredericton (April 25 and 26, 1983)
New Brunswick Association of Métis and Non-Status Indians
Mr. Gary Gould, President
Mrs. Madeleine Hallett, Board Member
Mrs. Cinthya Gaffney, Board Member
New Brunswick Native Indian Women’s Association
Ms. Alice Horsenell, Councillor
Ms. Barbara Martin, Executive Member to Council
Mrs. Alma Brooks, Executive Member to Council
Tobique Women
Ms. Eva Saulis
Mavis Goeres
Ms. Glenna Perley
Ms. Caroline Ennis
Union of New Brunswick Indians
Mr. Graydon Nicholas, President
Chief Harold Sappier, St. Mary’s Band
Mr. Charles Paul, Employment Advisor
Mr. Donald Ward, Buctouche Band
Mr. Charlie Sark, Lennox Island Band
Tobique Indian Band
Chief George Francis
Mr. Stewart Paul
Kingsclear Band
Chief Steve Sacobie
Pabineau Band
Chief Gilbert Sewell
Eel Ground Indian Band
Chief Roger Augustine
NORTHWEST TERRITORIES
Yellowknife (May 11 and 12, 1983)
Government of the Northwest Territories
The Honourable George Braden, Leader of the Elected Executive,
Minister of Justice and Public Services
The Honourable James J . Wah-Shee, Minister for Aboriginal Rights
and Constitutional Development
Mr. Brian Smith, Legal Counsel, Department of Justice and Public Services
Dene Nation
Mr. George Erasmus, President
MacKenzie Delta Dene Regional Council
Mr. James Ross, Vice-President
Miss Jennifer Mauro, Co-ordinator, Resource Impact Study
Fort Good Hope Community Council
Councillor Edward Grandjambe
Councillor John Shae
Metis Association of the Northwest Territories
Mr. Bob Stevenson, President
Ms. Anne Crawford, Legal Counsel
NOVA SCOTIA
Sydney (April 27 and 28, 1983)
Shubenacadie Band
Chief John Knockwood
Elder Noel R. Denny
Millbrook Band
Chief Stanley Johnson
Eskasoni Band
Mr. Albert Marshall
Mr. Wilfred Basque
Mr. Charles Francis
Membertou Band
Mr. Kevin Christmas
Native Council of Nova Scotia
Mrs. Viola M. Robinson, President
Union ofScotia Indians
Mr. Noel Doucette, President
Mrs. Elizabeth Paul, Health Liaison Worker
ONTARIO
Kenora (January 17, 1983)
Rainy Lake Regional Tribal Chiefs, Incorporated
Mr. Alex Skead
Chief Willie Wilson
Mr. Peter Kelly
Chief Don Jones
Mr. Rudy Morrisseau, General Manager
Mr. Moses Tom, Big Grassy Band
Mr. Delbert Horton, Rainy River Band
Dryden Tribal Area Bands
Tribal Area Chief Arnold Gardner
Rat Portage Band
Chief George Kakeway
Mrs. Madeline Skead, Band Member
Councillor Doug Skead
Shoal Lake Band No. 39
Chief Robin Greene
Grand Council of Treaty No. 3
Grand Chief John P. Kelly
Thunder Bay (January 20, 1983)
Northern Superior Ojibway Chiefs’ Council
Chief Roy Michano, Heron Bay Indian Band
Chief Timothy Esquega, Gull Bay Indian Band
Mr. Anthony Carfagnini, Counsel
Chief Douglas Sinoway, Whitesand Indian Band
Ontario Native Women’s Association
Ms. Donna Phillips, President
Ms. Marlene Pierre, Director
Ms. Priscilla Simard, Provincial Co-ordinator
Lac des Milles Lacs Indian Band
Chief Harvey Churchill
Assembly of First Nations
Grand Chief Peter Kelly, Ontario Vice-President
Ontario Métis Association
Mr. Mike McGuire, Secretary Treasurer
Sudbury (March 24, 1,983)
Anishinabek Nation
Chief Joe Miskokomon, Grand Council Chief
West Bay Band
Mr. Vic Migwans
Mr. Lewis Debassige
Garden River Band
Chief Arnold Solomon
Nipissing Band
Chief Phil Goulais
Cockburn Island
Chief Norma Fox (Wagosh)
Kettle Point (March 28, 1983)
Chippewas of Kettle and Stony Point Reserve
Chief Milton (Bud) George
Saugeen Reserve
Chief James Mason
Chippewas of the Thames Reserve
Chief Ether Deleary
Anishinabek Nation
Chief R.K. (Joe) Miskokomon, Grand Council Chief
Christian Island Reserve
Chief Rod Monague
Chippewas of Sarnia
Chief Ray Rogers
London (March 29, 1983)
Association of Iroquois and Allied Indians
Mr. Gordon Peters, President
Councillor Linda Commandant, Gibson Reserve
Chief Alfred Day, Oneida Reserve
Native Women ‘s Association of Canada
Ms. Jeanette Corbiere Lavell
Lansdowne House (July 5, 1983)
Central Tribal Council
Chief Peter Moonias, Lansdowne House
Elder Cameron Moonias, Lansdowne House
Mr. Donat Moonias, Lansdowne House
Chief Tom Shewaybick, Webequie
Councillor Alfred Mekinak, Webequie
Councillor Victoria Atlookan, Fort Hope
Mr. Dennis Cromartie, Interpreter
Kayahna Tribal Council
Mr. Simon Frogg, Community Representative, Long Dog Lake Community and Interpreter
Chief John Bighead, Wunnumin Lake Band
Chief Jeremiah McKay, Kasabonika Lake Band
Chief Simon Brown, Wapekeka Band
Councillor Joseph Sainnawap, Kingfisher Lake Band
Windigo Tribal Council
Mr. Charles Fox, Chairman
Grand Council Treaty No. 9
Grand Chief Frank Beardy
Mr. Fred Plain, Special Advisor to the Grand Chief
Commissioner Dennis Cromartie, Nishnawbe-Aski Commission
Moose Factory (July 6, 1983)
Attawapiskat Band
Chief John B. Nakogee
Fort Albany Band
Chief Alec Metatawabin
Mr. William Sutherland
Mr. Louis Nakogee Sr.
Moose Factory Reserve
Chief Ernest Rickard
Mr. Sinclair Cheechoo, Band Member
Mr. Ed Faries Jr., Councillor
Grand Council Treaty No. 9
Grand Chief Frank Beardy
Mr. Fred Plain, Special Advisor to the Grand Chief
Mocreebec
Mr. Allan Joly, Director Chief
Mr. Fred Wapache, Co-ordinator
Mr. Brian Craik, Co-ordinator for the Grand Council of the Crees of Quebec
Moosonee Metis and Non-Status Indian Association
Mr. Earl Danyluk, President
Mr. Sydney Moore, Vice-President
Native Council of Canada
Mr. Louis (Smokey) Bruyere, President
Ottawa
*Department of Indian Affairs and Northern Development
Mr. R.J. Fournier, Acting Deputy Minister
Mr. I. Cowie, Acting Assistant Deputy Minister, Corporate Policy
Mr. D.E. Goodleaf, Director General, Program Planning & Policy Co-ordination,
Indian & Inuit Affairs Program
*Assembly of First Nations
Dr. David Ahenakew, National Chief
Mr. Ernie Daniels, Prairie Regional Vice-Chief
*Native Women ‘s Association of Canada
Ms. Jane Gottfriedson, President
Ms. Marian Sheldon, Second Vice-President
Mrs. Agnes Mills, Secretary
*Department of Justice
Mr. Ian Binnie, Associate Deputy Minister
Mr. Fred Caron, Legal Adviser, Indian Affairs Department
*Department of National Health and Welfare Canada, Medical Services Branch
Mr. Jack Sinclair, Assistant Deputy Minister
Mr. Peter Cameron, Director General, Policy Planning and Evaluation
Mr. George Campbell, Director General Operations
Mr. Rob Ritter, Director, Community Based Health Systems
Dr. A. Murdock, Acting Associate Director General (East)
*Department of the Secretary of State
Mr. Jean-Paul Lefebvre, Assistant Under Secretary of State,
Citizenship and Official Languages
Mr. Jim Lanigan, Acting Director, Native Citizens Directorate
*Native Council of Canada
Mr. William L. Wilson, Vice-President
*Canadian Indian Lawyers’ Association
Mr. William Badcock, Member of the Board of Directors
Miss Judy Sayers, Secretary Treasurer
Conne River Indian Band Council
Chief William Joe
Miss Marilyn John, Councillor
Mr. Jerry Wetzel, Band Administrator
National Indian Business Association
Mr. Noel Starblanket, President
Mr. Irwin Goodleaf, Vice-President
Federation of Saskatchewan Indian Nations
Chief Sol Sanderson, President
Mr. Felix Musqua, First Vice-Chief
Arki, Nahwegahbow and Associates
Mr. David C. Nahwegahbow
Mr. Donald Allen
Mr. Robert Birt
Mr. Gary Phomim
Mr. Michael Posluns
Six Nations Council
Chief Wellington Staats
Mr. Phil Monture, Research Director
Mrs. Dale Davis, Research Assistant
Mr. Norman E. Lickers, Research Consultant
Councillor Peter Smith
Councillor Lewis Staats
Councillor Howard Thomas
Councillor Raymond Hill
Councillor Amos Keye
Councillor William White
Councillor Shirley Farmer
Councillor John Staats
Councillor George Johnson
Miss Charlene Bomberry, Research Secretary
Policy Development Group Limited
Dr. Harold Dyck
Mr. Walter Rudnicki
Thalassa Research Associates
Dr. Dan Gottesman, Partner
Mr. Rob Egan, Partner .
Mr. Harold Wilson, Consultant
Haudenosaunee Confederacy
Mr. Bob Antone
Mr. Venus Walker
Mr. Bruce Elijah
Mr. Loran Thompson
Mr. Mike Myers
Mr. Robert Jamieson
Blood Tribe
Mr. Wayne Wells, Councillor
Mr. Leslie Healy, Councillor
Mr. Virgil Brave Rock, Councillor
Mr. Narcisse Blood, Technician
University of Lethbridge
Professor Leroy Little Bear
Native Women’s Association of Canada
Ms. Jane Gottfriedson, President
Mrs. Gail Stacey Moore, Chairperson, Indian Act and Constitution Committee,
Board of Directors
Assembly of First Nations
Mr. David Ahenakew, National Chief
Federation of Saskatchewan Indian Nations
Chief Sol Sanderson
Coopers & Lybrand
Mr. Glenn Ross, Partner
Mr. Gary Peall, Manager
Teme-Augama Anishnabai
Chief Garry Potts
Keewatin Tribal Council
Elder Peter Beardy
Chief Adam Dick
Swampy Cree Tribal Council
Chief Charles Constant
Chief Esan Turner
Island Lake Tribal Council
Chief Joe Guy Wood
Manitoba Keewatinowi Okemakanak
Mr. Ovide W. Mercredi, Legal Counsel
QUEBEC
Restigouche (April 25, 1983)
Restigouche Band
Chief Ronald Jacques
Elder’ Alphonse Metallic
Mr. Fred Isaac, Aid
Ms. Rita Dagenais, Legal Advisor
Councillor Jerry Wysote
Gaspé Band
Chief Léon Jeannotte
Val d’Or (May 24, 1983)
Algonquin Council of Western Quebec
Grand Chief Fred Kistabish
Mr. Louis-Marie Fortin, Consultant
Chisasibi (May 25, 1983)
Grand Council of the Crees
Grand Chief Billy Diamond, Chairman, Cree Regional Authority
Executive Chief Philip Awashish, Vice-Chairman, Cree Regional Authority
Mr. Henry Mianscum, Director General, Cree Regional Authority
I Chief Henry Diamond, Rupert House
Mr. Allan Happyjack, Waswanipi
Chief James Bobbish, Chisasibi
Chief Walter Hughboy, Wemindji
Mr. Robert Kanatewat, Great Whale River
Chief Ted Moses, Eastmain
Chief George Wapachee, Nemaska
Mr. Peter Hutchins, Legal Counsel
Mr. Norman Hawkins, Consultant
Cree School Board
Grand Chief Billy Diamond, Chairman
Mr. Allan Happyjack, Director General
Mrs. Jane Pachano, School Commissioner, Chisasibi
Mr. Bill Grodinsky, Legal Counsel
Cree Board of Health and Social Services of James Bay
Mr. Steven Bearskin, Assistant General Manager
Mr. Bill Grodinsky, Legal Counsel
Pointe Bleue (May 26, 1983)
Attikamek-Montagnais Council
Mr. René Simon, President
Chief Armand Noé Germain, Pointe Bleue Reserve
Mr. Ernest Ottawa, Vice-President
Mr. Raphael Picard, Resource Person
Mr. Camille Vallant, Resource Person
Huron Village Band
Chief Max “Oné-Onti” Gros-Louis
Montagnais Women’s Association
Mrs. Jo Ann Gill, President, Pointe Bleue Chapter
Mrs. Marthe Gill
Naskapis de Schefferville Band Council
Mr. John Mameamskum, Naskapi Representative for
Cree/Naskapi (of Quebec) Act Negotiations
Mr. Robert A. Pratt, Legal Advisor
Kahnawake (May 27, 1983)
Mohawk Council of Kahnawake
Sub-Chief Tom Porter
Chief Joe Norton
Mr. Billy Two Rivers
Mrs. Myrtle Bush
Mr. Richard White
Mr. Donald Horne
Mrs. Ida Goodleaf
Kanesatake (Oka) Mohawk Nation
Mr. Gerry Peltier, Chief Advisor
Mr. Peter Hutchins, Legal Advisor
SASKATCHEWAN
Saskatoon (March 1,2 and 3, 1983)
Federation of Saskatchewan Indian Nations
Mr. Sterling Brass and Mr. Vern Bellegard, Chairmen
Senator John B. Lootoosis
Mr. Gary Waters, Consultant
Chief Sol Sanderson
Mr. Wayne Ahenakew, Treasurer
Ms. Beth Cuthand
Treaty No. 2
Senator Bill Standingready
Treaty No. 4
Senator Henry Langan
Treaty No. 5
Senator Thomas Young
Mr. Stan Wilson, Interpreter
Treaty No. 6
Senator Angus Merasty
Treaty No. 8
Senator Louis Chicken
Ms. Mary Rose Yooya, Interpreter
Pasqua Band
Elder Walter Gordon
Chief Lindsay Cyr
Starblanket Band
Chief Irwin Starr
Whitebear Band
Chief Brian Standingready
Yorkton District Chiefs
Mr. Norman Stevenson, District Representative
Lac La Hache Band
Chief Joe Tsannie
Peepeekesis Band .
Elder Walter Dieter
Chief Aubrey Goforth
Chief George Poitras
Gordon Band
Senator Hilliard McNabb
James Smith Band
Chief Angus McLean
Saskatchewan Indian Education Commission
Mr. Clive Linklatter, Member
Red Earth Band
Chief Alvin Head
Mr. Ken Hodgins, Resource Person
Prince Albert Student Residence
Mr. Howard Bighead, Administrator
Saskatchewan Indian Federated College
Mr. Dennis Acoose, Director
Saskatchewan Indian Cultural College
Mr. Alex Greyeyes, Director
Saskatchewan Indian-Community College
Mr. Ray Ahenakew, Director
Saskatchewan Services for Off- Reserve Treaty Indians
Ms. Elsie Roberts
Black Lake Band
Chief Ben Toutsait
Ms. Mary Rose Yooya, Interpreter
Fond du Lac Band
Acting Chief Norbert Fern
Saskatoon District Chiefs Convention
Chief Joe Quewezance
Mr. Andy Michael, President
Shellbrook District Chiefs
Senator Lorne Ahenakew
Piapot Band
Chief Roland Crowe
Regina Indian Development Association
Mr. Glen Gordon
Saskatchewan Indian Federated College Students Union
Mr. Syd Fidler
Saskatchewan Indian Women ‘s Association
Mrs. Angeline Roberts, President
Mrs. Dorothy Bird, Secretary
Senator Philomene Gamble
Chief Mary Anne Walker, Okanese Band
Lac La Ronge Band
Senator Angus Merasty
Peter Ballantyne Band
Elder Horace Sewaps
Montreal Lake Band
Chief Roy Bird
Indian Equity Foundation
Mr. Del Anaquod, Director
James Smith Band
Elder George Burns
Elder Joe Turner
Ochapowace Band
Chief Cameron Watson
Economic Action
Mr. Don Pooyak, Director
Saskatchewan Indian Nations Company (sinco)
Mr. James Burns, Director of Operations
Cowessess Band
Chief Henry Delorme
Muscowpetung Band
Chief Eugene Anaquod
Saskatchewan Indian Veteran’s Association
Mr. Ernie Crowe, President
Senator Walter Dieter
Senator Henry Langan
Dakota Nations
Mr. Cyrus Standing, Wahpeton Band
Chief Melvin Isnana, Standing Buffalo Band
Regina (March 4, 1983)
Association of Metis and Non-Status Indians of Saskatchewan
Mr. Jim Sinclair, President
Mr. Jim Durocher, Provincial Treasurer
Mr. Rob Millen, Legal Counsel
Saskatchewan Native Women’s Association
Ms. Georgina Fisher, President
Ms. Myrelene Ranville, Consultant
Ms. Vicky Wilson, Northern Co-ordinator
Ms. Leona Blondeau, Executive Director
Saskatchewan Association of Northern Local Governments
Mr. Michael J. Blackman, Chairman
Mr. Max Morin, Vice-Chairman
Mr. George Smith, Overseer, Pinehouse Local Community Authority No. 9
Mr. Lawrence Yew, M.L.A., Cumberland Constituency
YUKON
Whitehorse (May 9 and 10, 1983)
Government of Yukon
Mr. C.W. Pearson, Government Leader
Mr. Gerry Piper, Administrator, Land Claims Secretariat, Department of Economic
Development and Intergovernmental Relations
Mr. Willard Phelps, Yukon Government Negotiator, Yukon Indian Land Claim
N.D.P. Caucus
Mr. Tony Penikett
Mr. Dave Porter
Mayo Indian Band
Chief Robert Hager
Elder Harry McGinty
Ms. Alla Melancon
Mr. Albert Peter
Mr. Richard Moses
Association of Yukon Communities
Mr. Andre Carrel
Champagne-Aishihik Band
Chief Paul Birckel
Councillor Dorothy Wabisca
Ms. Barbara Hume, Social Worker
Councillor Harold Kane
Council for Yukon Indians
Mr. Willie Joe, Vice-Chairman
Elder Eliagh Smith .
Ms. Marilyn Van Bibber, Director, Department of Health and Social Development
Mr. David Joe, Chief Negotiator
Mr. Mike Smith, Vice-Chairman
Mr. Victor Mitander, Negotiator
Yukon Indian Women’s Association
Ms. Bobbi Smith, Vice-President, Researcher and Information Officer
Ms. Virginia Smarch, Elder, Teslin Indian Band
Mr. Kenny Kane, Director of Northern Native Broadcasting,
Champagne-Aishihik Indian Band
Mrs. Betty Pope, Past Elder Member, Social Assistance Administrator, Carcross Indian Band
Ms. Mary Jane Jim, Training and Employment Co-ordinator, Champagne-Aishihik Band
Mrs. Jean Gleason, Director of Yukon Indian Cultural Education Society, Member
Ms. Marion Sheldon, Secretary, Teslin Indian Band
APPENDIX B
OTHER MEMBERS WHO PARTICIPATED
Mr. René Gingras, M.P.
(Liberal, Abitibi)
Mr. Jack Burghardt, M.P.
(Liberal, London West)
Mr. Girve Fretz, M.P.
(P.C., Erie)
Mr. Lorne Greenaway, M.P.
(P.C., Cariboo-Chilcotin)
Mr. John A. MacDougall, M.P.
(P.C., Timiskaming)
Mr. John McDermid, M.P.
(P.C., Brampton-Georgetown)
Mr. Terry Sargeant, M.P.
(N.D.P., Selkirk-Interlake)
Mr. Doug Anguish, M.P.
(N.D.P., The Battlefords-Meadow Lake)
Mr. Derek Blackburn, M.P.
(N.D.P., Brant)
Ms. Marlyn Kane, Liaison Member
Native Women’s Association of Canada
Mr. Clem Chartier, Liaison Member
Native Council of Canada
APPENDIX C
INDIAN ORGANIZATIONS AND INSTITUTIONS
Assembly of First Nations
In the first half of this century several factors worked against the establishment of
national Indian organizations. They included Indian poverty and adult illiteracy, geographic
dispersal, isolation of Indian communities, linguistic diversity and the absence of a shared
second language, interference by Indian agents or the RCMP, a DIAND requirement that all
grievances be routed through the local Indian agent and a section in the Indian Act (1927)
prohibiting political organizing.*
* J. Rick Ponting and Roger Gibbons, Out of Irrelevance, 1980, p. 196.
At the end of the 1970s, changes in the NIB structure were sought to give chiefs more
direct control over national policies and to create an organization that would strengthen tra-
ditional Indian governments and respect the diversity of each Indian nation, while at the
same time, encouraging mutual support for common goals. In April 1980,
…hundreds of Chiefs, representing the People of the First Nations, gathered in an
Assembly to re-proclaim the right of the First Nations to govern themselves. The
others for mutual support, co-operation and to develop national policies for and by Indian
People.**
**AFN, Our Land, Our Government, Our Heritage, Our Future, brochure.
A DECLARATION OF THE FIRST NATIONS
We the Original Peoples of this land know the Creator put us here.
The Creator gave uslaws that govern all our relationships to live in harmony with
and mankind.
The laws of the Creator defined our rights and responsibilities.
The Creator gave 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
as 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.
Assembly of First
Nations Conference
December 1980
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 Proclamation of October 7th, 1763;
(b) all rights recognized intreaties 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 7th, 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. The Parliament and Government of Canada shall be committed to the negotiation of the full
realization and implementation of the rights specified in Sections 1 and 3 of this Part.
On April 20, 1982, the Chiefs adopted a new structure, developed over the previous two
years by an interim body that included the NIB Executive Council. The new structure, called
The Assembly of First Nations, enables the Chiefs to participate in developing and establish-
ing policy at the national level. The NIB corporate structure was retained for legal purposes,
but the Assembly did not incorporate under Canadian law.
Coalition of First Nations
The Coalition of First Nations, representing people from bands in British Columbia,
Alberta, Manitoba, Quebec and the Maritimes, was formed in Winnipeg during a two-day
meeting on March 10-11, 1983 by bands that had withdrawn from the Assembly of First
Nations because they disagreed with its decision to participate in the First Ministers’ Con-
ference of March 15-16, 1983. It maintained that discussions relating to aboriginal and
treaty rights should be between Canada and the First Nations and should not involve the
provinces.
Native Council of Canada
The Native Council of Canada (NCC) was established in 1970 to provide a national
voice for Métis and non-status Indians in Canada. Earlier this year the Métis organizations
of western Canada broke away and formed their own organization, the Métis National
Council.
Native Women ‘s Association of Canada
Representing status Indian, non-status Indian, Métis and Inuit women, the Native
Women’s Association of Canada (NWAC) is the national organization representing and
speaking on behalf of native women’s organizations in each province and the two territories.
The NWAC lobbies for change on a number of fronts, including the following:
elimination of discriminatory provisions in the Indian Act and reinstatement of those
individuals who lost Indian status due to these provisions;
provision of an equality rights clause in the aboriginal and treaty rights section of
the Constitution to ensure that aboriginal peoples do not suffer discrimination in the
future;
employment and training, cultural, social, and economic development, and health
needs of Native women; and
child welfare.
Other First Nations Units
Indian people have also joined together to form units based on treaty areas or geo-
graphic regions. In addition, bands unite to form education, economic development or
agricultural councils, and national bodies have been formed to support cultural centres.
For some Indian people, the tribal council is an historical unit of Indian government
that existed at the time the Europeans arrived in the New World. For others, it is unit
created by Indian governments. In both instances, tribal councils are formed by a group of
bands coming together for common purposes but retaining individual band authority.
Tribal council activities vary from one part of Canada to another. Some councils are
mainly administrative bodies, providing clerical, administrative and technical assistance to
member bands. Other councils are service-oriented, delivering services such as policing, edu-
cation and family services. This is the case in Manitoba, but a council is also seen as playing
a role in the development of self government:
The uniting of bands to form tribal councils is oriented toward attaining the goal of local
government, self-determination and independence, each focusing on slightly different pro-
gram areas to reach these goals.’ These new organizations have an entirely different
emphasis from past Indian organizations. Tribal councils are programmatic, not political.
Working from the principle that there is strength in unity, tribal councils act from the
premise that the bands are primary sources of authority; thus tribal councils are given
direction from representatives of their member bands. (Dakota Ojibway Tribal Council,
Special 2:81)
Explained Chief Arnold Gardner of the Dryden Tribal Area Bands,
It is in our best interest if we do things collectively. . . if we combine our moneys together
we can hire the resource people so that we can best utilize the money we do have. (Special
1:60)
In British Columbia, by contrast, tribal councils are viewed as political units providing
support to chiefs and councils in their political activities. These differences, coupled with the
fact that tribal councils have no legal status, create certain anomalies, particularly in the
area of funding. For example, the Department of the Secretary of State provides core fund-
ing to B.C. tribal councils through its program for funding political organizations. DIAND
also funds certain services and programs administered by tribal councils, but as witnesses
told the Committee, funds are inadequate, are considered non-essential by DIAND, and are in
some cases reduced by DIAND in an effort to control council activities. Moreover, the federal
government requires that tribal councils incorporate, making them subject to provincial law.
Witnesses criticizing this requirement insisted that “tribal councils must be legally recog-
nized in Canadian law”. (Special 7:35)
APPENDIX D
FEDERAL GOVERNMENT STRUCTURES
DEALING WITH INDIAN PEOPLE
Departments
Department of Indian Affairs and Northern Development
The principal federal structure affecting Indian people is the Department of Indian
Affairs and Northern Development (DIAND), whose control and influence are apparent in
nearly every aspect of their lives. The Indian Act, which sets forth the duties and respon-
sibilities of the Department, regulates the lives of Indians from registration at birth to the
probate of wills. This all-encompassing legislation covers for example, the holding of prop-
erty, rules about inheritance, the election of band councils, the provision of education, and
exemptions from taxation.’As a result the Department comes close to a single-agency con-
cept under which all programs and services are delivered by one organization. The compre-
hensive nature of the Department cannot be overstated.
On the reserve, the IIAP (Indian and Inuit Affairs Program) is a ‘total’ institution in that it
has a monopoly on the delivery of services to a captive clientele. Its organization is charac-
terized by specialization, hierarchy, and regimentation, while its clients are uneducated,
unspecialized, and varied. By limiting the choices available to its Native Clients, the IIAP
shapes and standardizes Native behaviour at minimal cost and risk to itself.*
* James S. Frideres, Native People in Canada: Contemporary Conflicts (Scarborough, Ont.: Prentice-Hall,
1983). p. 227.
In addition to the Indian Act, the Department works from a legislative mandate of 37
other federal acts and 13 treaties.
The Department of Indian Affairs and Northern Development is responsible for the gov-
ernment’s special policy and programs concerned with Indians and Inuit and the two
northern territories. Specifically it is responsible for:
initiating, encouraging and supporting measures that will respond to the
needs and aspirations of Indian and Inuit people and improve their social,
cultural and economic well-being;
ensuring that lawful obligations to Indians and Inuit are met;
encouraging the orderly economic and political development of the Yukon
and Northwest territories; and
settling claims related to traditional native use and occupancy of lands in
those areas of Canada where this traditional right has not been extin-
guished by treaty or superseded by law.
1981-82 Annual Report
As well as providing services, the Department is the principal link between the federal
government and Indian people on legal, treaty and, until recently, constitutional matters; it
sees itself as supporting and assisting Indian efforts to achieve “their cultural, social and eco-
nomic needs and aspirations”. (DIAND 1983-84 Estimates)
Indian and Inuit Affairs is one of four DIAND programs. The Indian Affairs program in
turn is divided into nine sub-programs: Administration, Reserves and Trust, Education and
Employment Development, Social Services, Community Infrastructure and Services, and
Band Government. The Office of Native Claims is located in another program (Administra-
tion). It is responsible for reviewing and negotiating the settlement of claims.
On the other hand, the Native Claims Program, one of DIANDIS four major divisions,
funds the research and preparation of claims by native people and pays compensation to
claimants once agreement has been reached.
Department of National Health and Welfare
The current budget for the Indian and Northern Health Services of the Department of
National Health and Welfare (NHW) is $212 million. Over 2500 people are employed by the
Medical Services Branch which operates 400 facilities such as hospitals, cottage hospitals,
nursing stations, health centres and public, health clinics. NHW also funds environmental and
occupational health services, dental care and alcohol and drug abuse programs. Non-insured
health benefits such as dental care, prescription drugs, eyeglasses, medical transportation
and prostheses are also provided.
The cost of furnishing these services to Indians and Inuit was $80 million in 1982-83.
Many of these services are similar to those provided to people who receive provincial social
assistance allowances (for which Indians are not eligible because they live on reserves).
Departmental officials also testified that the Department is spending $20 million for band-
administered health services, much of it for “community health representatives”. The
Department is also responsible for the National Native Alcohol and Drug Abuse Program.
In April 1982 the Minister announced that the federal government would spend $154 million
on this program over a 5-year period.
In 1979 the Department issued an Indian Health Policy which emphasized, among
other things, community involvement in health care delivery. Among the efforts to encourage
such involvement was the report of the Advisory Commission on Indian and Inuit Health
Consultation, headed by Mr. Justice Berger. The Department is now studying the transfer of
health services to Indian communities. Cabinet has approved $3.6 million for a two-year
demonstration program to develop ways to carry out this transfer.
Secretary of State
The Department of the Secretary of State is responsible, through the Native Citizens’
Directorate of the Department’s Citizenship and Culture branch, for the “political develop-
ment” of native peoples. In 1982-83 it provided programs costing close to $28.6 million to
status and non-status Indian groups, Métis and Inuit.
Funds are provided for the administrative activities of national, provincial and territo-
rial associations and, for the political activities of some tribal councils. Other programs assist
or support native friendship centres and women’s groups, communications societies and
social or cultural development projects.
Department of Justice
The Department of Justice acts as legal counsel in advising DIAND and other depart-
ments “on the legal interpretation of the Indian Act, the reach of the constitutional authority
of Parliament over native matters and generally any legal questions which arise in the course
of administering the federal government programs and legislation”. (Sub. 5:7) The Minister
of Justice plays a lead role in the constitutional conferences on aboriginal rights. The
Department also provides funding for programs “for areas where the legal system and the
native communities interact”. Finally, the Department makes funds available to native
organizations and peoples where appropriate—for example, to prepare for and attend confer-
ences dealing with the legal system.
The largest specific activity is the Native Court Worker Program, costing $2.4 million a
year. Cost-shared with the provinces, this program has court workers familiar with native
communities and problems available in court to assist native people involved with the law. (It
does not operate in Nova Scotia, New Brunswick and Prince Edward Island.) A second pro-
gram encourages native people to enter the legal profession; at present, $133,300 is allotted
for the program.
Ministry of the Solicitor General
The Ministry of the Solicitor General administers the criminal justice system. Three
activities are of relevance to native people. The Royal Canadian Mounted Police operates a
Native Special Constable Program in all provinces and territories except Ontario, Quebec
and New Brunswick. Native people account for ten per cent of the total inmate population in
federal penitentiaries run by the Correctional Service. It is not possible to estimate the
amount of money spent to maintain incarcerated native people because the native inmate
population varies greatly from region to region, as do costs. During 1981-82 the Ministry
also provided approximately one million dollars for after-care services for native people
through a number of programs, including Native Liaison Workers, Native Counsellors,
Community Residential Boarding and Community Assessments and Supervision.
Central and Co-ordinating Agencies
While line departments such as DIAND and NHW provide direct services, Indian people
are also greatly affected by the decisions of two co-ordinating agencies, the Ministry of State
for Social Development (MSSD) and the Ministry of State for Regional Economic Develop-
ment (MSERD), and by central agencies such as the Treasury Board and the Federal-Provin-
cial Relations Office. While not dealing directly with Indian people, these agencies deter-
mine both general policy and the broad allocation of financial resources.
Treasury Board
The Treasury Board is Cabinet’s expenditure committee. The federal government allo-
cates and controls expenditures through an ‘envelope system’, which defines the resources
available for each policy sector. The Department of Indian Affairs is part of the Social
Affairs envelope, one of ten envelopes in the current system. The Cabinet Committee on
Social Development, chaired by the Minister of State for Social Development, is responsible
for distributing funds within this envelope to departments and agencies covered in the policy
area.
The President of the Treasury Board maintains an overview of the government’s expen-
diture plans and advises on the appropriate expenditure levels for the government as a whole
and for each envelope. The Treasury Board Secretariat prepares the current expenditure
plan, or Main Estimates, based on the decisions of the cabinet committees. The Secretariat
also analyses departmental plans and programs, with particular emphasis on efficiency and
effectiveness criteria.
Ministry of State for Social Development
Established in June 1980, MSSD formulates and develops “new and comprehensive poli-
cies in relation to the activities of the Government of Canada that affect the welfare ofthe
individual and social development. . Matters relating to Indian people fall under this man-
date.
Specific proposals by DIAND or other departments and agencies for new programs or
legislation relating to Indian Affairs are reviewed at a number of levels, including a commit-
tee of deputy ministers, the Cabinet Committee on Social Development and occasionally the
full cabinet. The Ministry acts as a secretariat to the Cabinet Committee on Social Develop-
ment, briefing its minister and preparing assessments of cabinet submissions, examining such
things as the adequacy of interdepartmental consultation and the soundness of financial pro-
posals.
MSSD is also involved in land claims; the secretary of MSSD chairs the Deputy Ministers’
Committee on Comprehensive Claims, which advises the Cabinet Sub-committee on Com-
prehensive Claims.
Although the Ministry had a large role in preparing for the First Ministers’ Conference
of March 1983, most of the work for future conferences will be done by the Office of
Aboriginal Constitutional Affairs.
Ministry of State for Regional Economic Development
MSERD was established in December 1978 and assigned a strong role in integrating and
co—ordinating all policies and programs related to industrial and regional development. It
also has an explicit role in the budgetary process; the Minister, as chairman of the Cabinet
Committee on Economic Development, makes recommendations to Treasury Board on the
allocation of financial, personnel and other resources to programs dealing with economic
development. The Minister of State for Small Business and Tourism is responsible for the
$345 million Native Economic Development Fund.
Federal-Provincial Relations Office and Office of Aboriginal Constitutional Affairs
Among the responsibilities of the Federal-Provincial Relations Office is co-ordinating
federal participation in First Ministers’ Conferences. Following the Aboriginal Rights Con-
ference in March 1983, the Prime (Minister announced the creation of an Office of Aborigi-
nal Constitutional Affairs. Reporting through the Secretary to the Cabinet for Federal-Pro-
vincial Relations, the Office co-ordinates all activities within the federal government related
to the ongoing constitutional process, as well as bilateral consultations between federal
authorities and representatives of all aboriginal peoples. Its terms of reference include the
following responsibilities:
to undertake preparations for future constitutional conferences of First Ministers on
aboriginal matters, including meetings of ministers and officials;
to work closely with the representatives of aboriginal peoples and to ensure that they
are consulted on a continuing basis and participate fully in preparations for constitu-
tional conferences;
to work with provincial and territorial governments in the search for an early resolu-
tion of aboriginal constitutional issues;
to co-ordinate the activities of the federal departments and agencies participating in
this ongoing process; and, more generally,
to advise the government of Canada on these issues and ensure that the research and
policy development required for their resolution are done expeditiously.
Although funding for the participation of aboriginal groups in First Ministers’ Confer-
ences comes from the Department of the Secretary of State, this Office is involved in nego-
tating the amount of funding with the organizations.
The Office is also involved in the bilateral process put in place through an exchange of
letters between the Prime Minister and the National Chief of the Assembly of First Nations
in December 1982. Bilateral negotiations on constitutional issues are now handled by this
Office, while non-constitutional matters continue to be the responsibility of the Department
of Indian Affairs.
Interdepartmental Committee
Health and Welfare officials told the Committee that cabinet had “directed DIAND to
establish an interdepartmental committee to co-ordinate the various aspects related to the
implementation of Indian self—government”. (Sub 6:10) Further questioning revealed that
this interdepartmental committee, composed of approximately 50 senior officials in DIAND,
MSSD, the Federal-Provincial Relations Office, Treasury Board and the Canada Employ-
ment and Immigration Commission, had held only one meeting as of’November 1982. (Sub
6:32)
APPENDIX E
HOW THE COMMITTEE
ORGANIZED ITS WORK
The membership of the Special Committee on Indian Self-Government comprised seven
Members of Parliament and representatives from three national aboriginal organizations.
The members from the House of Commons were Keith Penner (Liberal, Cochrane-
Superior), Chairman; Stan Schellenberger (P.C., Wetaskiwin), Vice Chairman; the Hon.
Warren Allmand (Liberal, Notre-Dame-de-Grace-Lachine East); J. Raymond Chénier (Lib-
eral, Timmins-Chapleau); Jim Manly (NDP, Cowichan-Malahat-The Islands); Frank
Oberle (P.C., Prince George-Peace River); and Henri Tousignant (Liberal, Témiscamingue).
To ensure that the Members of Parliament were fully aware of the concerns and per-
spectives of Indian people, three national aboriginal organizations were invited to work
closely with the Committee. This practice had been established during the earlier Sub-com-
mittee on Indian Women and the Indian Act and had proved highly successful. The
Assembly of First Nations (AFN) was asked to designate a representative to participate fully
in the Committee’s work as an ex officio member with all rights except that of voting. In
addition, the Native Council of Canada and the Native Women’s Association of Canada
were invited to designate liaison members.
Roberta Jamieson was designated as the AFN representative. Marlyn Kane and Sandra
Isaac served as liaison members from the Native Women’s Association of Canada while the
Native Council of Canada asked Clem Chartier and, later, Bill Wilson to act as its liaison
members.
Staff
The Committee relied on its staff to plan its extensive schedule of travel and public
hearings and to assist in the preparation of its report. Francois Prégent, assisted by Eugene
Morawski served as Committee Clerks. They and their staff were responsible for the overall
administration of the Committee’s work including travel plans, recording the meetings and
keeping minutes. The committee staff also included researchers from the Library of Parlia-
ment, Katharine Kirkwood Dunkley and Barbara Plant Reynolds. Peter Dobell of the Parlia-
mentary Centre for Foreign Affairs and Foreign Trade served as the policy co-ordinator.
Each national aboriginal organization was entitled to have a person participate at the staff
level: Danny Gaspé, Gail Macdonald and Rarihokwats (Assembly of First Nations); Eliz-
abeth Moore (Native Women’s Association); and Bill Lee (Native Council of Canada). Fol-
lowing a practice established by other parliamentary committees, each political party was
represented by one staff person from the office of a Committee member: Penelope Muller
(office of Keith Penner, M.P.); Iva Vranic’ (office of Stan Schellenberger, M.P.); and Stu
Herbert, Randy Potts and Bett Tsa-Me-Gahl (sharing the position from the office of Jim
Manly, M.P.).
Travel and Hearings
Early in its work the Committee decided that it should travel to all regions of Canada to
conduct hearings and learn at first hand about the concerns of Indian people. There was also
a commitment to hold a number of these meetings on reserves or in Indian-owned premises.
Where those sites presented problems for any witnesses, an off-reserve site was scheduled.
During several meetings, visits were arranged so that Committee members were able to see
conditions on the reserves as well as Indian enterprises.
The following is a list of the meetings held outside Ottawa. Thirty-nine of the sixty pub-
lic hearings were held on the road.
November 29, 1982 Stoney Reserve, Morley, Alberta
Visit to Blackfoot Reserve, Gleichen, Alberta
November 30 Canadian Native Friendship Centre, Edmonton, Alberta
December 1 Canadian Native Friendship Centre, Edmonton, Alberta
December 2 Visit to Big Stone Cree Reserve, Wabasca, Alberta
Slave Lake Native Friendship Centre, Slave Lake, Alberta
January 17, 1983 Ne-chee Friendship Centre, Kenora, Ontario
January 18 Long Plain Reserve, Long Plain, Manitoba
January 19 Indian and Métis Friendship Centre, Winnipeg, Manitoba
January 20 Thunder Bay, Ontario
February 14 Nanoose Reserve, Nanoose, British Columbia
February 15 Vancouver Indian Centre, Vancouver, British Columbia
February 16-17 Prince Rupert, British Columbia
March 1-3 Saskatchewan Indian Nations Company Offices (SINCO),
Saskatoon, Saskatchewan
March 4 Regina, Saskatchewan
March 24 Sudbury, Ontario
March 28 Kettle Point Reserve, Kettle Point, Ontario
March 29 N’amerind Friendship Centre, London, Ontario
April 11 Vancouver, British Columbia
April 12-13 Kamloops Reserve, Kamloops, British Columbia
April 14 Prince George, British Columbia
April 15 Fort St. John, British Columbia
April 25 , Restigouche Reserve, Quebec
April 25 Fredericton, New Brunswick
April 26 St. Mary’s Reserve, Fredericton, New Brunswick
April 27 Eskasoni Reserve, Sydney, Nova Scotia
April 28 Sydney, Nova Scotia
May 9-10 Yukon Indian Centre, Whitehorse, Yukon
May 1 1-12 Yellowknife, Northwest Territories
May 24 Val d’Or, Quebec
May 25 Chisasabi Cree Community, Quebec
May 26 Pointe Bleue Reserve, Pointe Bleue, Quebec
May 27 Kahnawake Reserve, Quebec
July 5 Lansdowne House, Ontario
July 6 Moose Reserve, Moose Factory, Ontario
Of the 39 hearings on the road, 14 were held on reserves, 9 in friendship centres, 3 in
Indian offices and 13 in hotels or public halls. In some cases hotels or halls were used
because friendship centres or Indian-owned premises were too small.
The Committee also travelled to Washingon, D.C., and to several Pueblo reservations in
New Mexico to learn about the experience of Indian people with various aspects of U.S. poli-
cies (see Appendix G). The purpose was toidentify models that might be acceptable in
Canada, as well as what might be unacceptable.
Selection of Witnesses
In its terms of reference the Committee was directed to hear from Indian people about
the nature of their relationship with Canada. The Committee endeavoured to hear as many
oral representations as possible from band councils, tribal councils, other organizations and
individuals. The Committee heard a total of 215 oral presentations involving 567 witnesses.
A complete list of the witnesses can be found in Appendix A.
At the outset, the Committee identified five broad categories of witnesses it wanted to
hear:
1) Indian bands;
2) members at executive levels of the Assembly of First Nations, including regional
vice-chiefs and members of the Confederacy of Nations;
3) representatives of Indian associations, such as provincial and territorial organiza-
tions and tribal councils;
4) other aboriginal organizations, regional or local; and
5) other organizations and individuals.
To ensure a representative cross-section of views, the Committee sought witnesses repre-
senting a variety of political experiences and organizational styles. As well, it wanted to hear
from bands of different socio-economic experiences; from different locations—some urban,
some rural and some remote; and of varying populations.
Communications
To ensure that as many Indian bands and organizations as possible were informed about
its activities, the Committee undertook a number of steps:
1) advertisements were placed in daily and selected weekly newspapers and all native
publications throughout Canada to invite written submissions and requests to
appear;
2) a letter from the Chairman was sent to all native organizations and band councils in
November 1982 and in January 1983 advising them of the work of the Committee;
3). a copy of the minutes and proceedings of each meeting was sent to all chiefs; and
4) interviews were given with representatives from native and public news media.
Mindful of the need for public education of the non-Indian community about aboriginal
and treaty rights and about self-government, the Committee hired a public relations firm,
David Humphreys & Associates, to contact the local news media in each area where the
Committee travelled. Interest in the work of the Committee increased, particularly after the
televised First Ministers’ Conference on Aboriginal Rights in March 1983. The hearings
were covered by a total of 123 reporters. There were 59 interviews of Committee members
for radio, 22 for television, and 30 interviews for newspapers.
Advance Work
In order to inform people about its work, the Committee hired Dan Brant of First
Nations Consultants to assist with advance arrangements. He was to visit each area prior to
the public meetings to discuss the Committee’s mandate with scheduled witnesses and to
answer any questions aboutthe arrangements for the public meetings. He prepared, a pam-
phlet for prospective witnesses that outlined the work of the Committee and contained infor-
mation on the format of a public hearing, how to present a submission, and the members of
the Committee. In addition, he distributed a list drawn up by the staff to illustrate the type
of questions that might be posed during a meeting. This list was intended to indicate the
Committee’s interests and to assist prospective witnesses in writing submissions and prepar-
ing for hearings.
Research Projects
As the Committee conducted its study, four subjects were identified as important areas
where specialized information was required. It was decided to commission research projects
from experts in each area. Terms of reference for each study were drawn up by Committee
members and staff. These are included in Appendix F.
Many Indian witnesses voiced concerns about the difference between the amount of
money allocated for Indian people and the amount actually reaching them, and about the
excessive conditions and accounting requirements attached to the use of these funds. Glenn
Ross, Gary Peall and Alexandre Moricz of Coopers & Lybrand (Ottawa) undertook a study
of federal expenditures and mechanisms for their transfer to Indians to examine these con-
cerns and to offer suggestions for improving the fiscal transfer.
Almost all the Indian witnesses referred to the special relationship between the govern-
ment of Canada and Indian people. To explore the nature of this relationship more fully, a
project entitled “The First Nations and the Crown: A Study of TrustRelationships” was
commissioned from a coalition of David Nahwegahbow, Michael Posluns, Douglas Sanders
and Don Allen and Associates. In addition to describing various aspects of the trust relation-
ship, this project included an analysis of the financial practices relating to the trust accounts.
To see whether the experience of other countries could offer guidance, a comparative
study of the indigenous peoples’ situation in New Zealand, Australia, Japan, the United
States, Denmark and Norway was prepared by Walter Rudnicki and Harold Dyck of Policy
Development Group.
As it examined the subject of self-government, the Committee realized the need to iden-
tify more fully an essential component of self-government, the economic base. It contracted
with Dan Gottesman, Rob Egan, Harold Wilson and Allyson McKay of Thalassa Research
Associates of Victoria to undertake a study, “The Economic Foundations of Indian Self-gov-
ernment”. Included in this research was an analysis of several successful and unsuccessful
band-operated enterprises.
APPENDIX F
RESEARCH PROJECTS COMMISSIONED
BY THE COMMITTEE
1. QUESTIONS RELATING TO THE ECONOMIC
FOUNDATION FOR INDIAN SELF-GOVERNMENT
(Thalassa Research Associates)
A 1. Prepare an overview of the treaties and agreements made between the government of
Canada and the Indians in regard to economic provisions.
2. Collate information in the various agreements and treaties and relate this informa-
tion to the Committee’s discussion of Indian self-government. This would include
discussion of modernization of the economic portions of such agreements.
3. Take examples of treaties and agreements from both the pre-Confederation and
post-Confederation periods and examine their current effect on Indian socio-eco-
nomic conditions. Government programs to deal with this aspect of the treaties and
agreements should also be taken into account.
B 1. Examine the legal or legislative obstacles faced by Indians in attempting to build
viable and secure (long-term) economic bases across the country. Consider the legal
problems faced by both individual band entrepreneurs and band councils. The report
should be cognizant of the increasing desire of Indian bands to act collectively
through tribal associations and other mechanisms.
2. Examine six to ten Indian-controlled economic ventures, one half successful and one
half unsuccessful, in order to identify the factors contributing to success or lack of
success. Relate the case studies to the other points investigated in this paper. Con-
sider the base of the venture (renewable or non-renewable), the method of accounta-
bility to the band population at the band council and individual level, and the politi-
cal, social and economic effects of the venture on the band community and
individual members.
3. Comment on the interaction of bands and tribal associations with local and regional
economies across Canada. Examine conflicts between non-Indian and Indian eco-
nomic interests, both on and off reserve, including a discussion of multiple land use
and conflicts in the use of renewable and non-renewable resources. Suggest alterna-
tive economic models for interaction between bands and tribal associations and local
and regional economies.
4. Review the compatibility (or incompatibility) of various economic activities with dif-
ferent Indian cultures (e.g., a critical look at tourism, craft industries, resource
development) and comment on the implications.
2. VARIOUS MODELS FOR RELATIONS BETWEEN
INDIGENOUS PEOPLES AND GOVERNMENTS
(Policy Development Group)
1. The purpose of this research project is to examine and assess relationships, institu-
tions and mechanisms developed in other countries with indigenous peoples with cul-
tural and linguistic differences. The aim of this project is to identify models,or ele-
ments of models, that have relevance to the development of Indian government in
Canada and that might be introduced in this country.
2. The context should be carefully described, the structure itself and the way it func-
tions clearly set down, its effect on the peoples involved carefully examined, its
potential utility in Canada assessed and the difficulties in introducing the structure
identified. Among countries to be included are New Zealand, Denmark, Norway,
Sweden and the United States and any others the consultants consider relevant.
3. Consider also other constitutional models for accommodating minorities in states
that are relevant to the development of Indian government in Canada.
4. As a background to this study, and for the purpose of comparison, examine
Indian/government relations in Canada. How have the original Indian governmental
powers been transferred, abridged, abdicated or otherwise interfered with, illustrat-
ing with a few case studies?
3. TRUST RELATIONSHIPS BETWEEN THE FEDERAL
GOVERNMENT (the Crown)
AND THE INDIAN PEOPLE OF CANADA
(Arki and Nahwegahbow)
1. Examine the origins and the nature of the trust relationships between the federal
government (the Crown) and the Indian peoples of Canada, indicating how these
relationships have been modified (if at all) by legislation and by judicial decisions or
otherwise. Identify the parties between which the trust relationships lie. Analyse the
trust relationships as they exist today from the legal, economic, political, fiscal,
moral and cultural perspective.
2. Identify the source of the trust relationships, including
a) treaties and other agreements between the federal government and Indian peo-
ple, and pre-Confederation proclamations, treaties and other agreements;
b) aboriginal rights;
c) obligations arising out of international law; and
d) other sources.
Comment on the perceptions of each of the parties concerned including the reasons.
3. Distinguish alternative ways in which the various trust responsibilities of the federal
government are being exercised with respect to
a) financial dealings in which trusts may be involved;
b) federal dealings with provincial governments on behalf of Indian people and the
First Nations;
c) the delivery of services; and
d) Indian lands.
Comment on how these different relationships have been perceived over the years by
each of the parties concerned, on the legal position they now take and on their com-
patibility when the positions differ. Where the federal government exercises its trust
responsibilities through contracts, examine the arrangements and mechanisms used.
4. Identify what funds are being held and in what manner by the Minister of Indian
Affairs and Northern Development in his capacity as trustee. Describe how these
funds originated and are administered, what interest is paid on them and what finan-
cial and other problems have been identified in the past and are evident today. Dif-
ferentiate trust relationships affecting Indian individuals and Indian nations. Why
has the Auditor General been unable to audit the trust funds and what could be
done to correct this situation now or in the future?
4. FEDERAL EXPENDITURES AND MECHANISMS FOR THEIR
TRANSFER TO INDIANS
(Coopers & Lybrand)
1. For the most recent year for which expenditure figures are available, identify the
total expenditures from moneys voted annually by Parliament that are directly or
indirectly intended for the benefit of Indian people in Canada.
a) the moneys expended to be broken down by department and agency;
b) when moneys are not specifically voted for Indians (e.g., DREE grants), make an
estimate of the amount involved; delete, by subtraction, any funds derived from
Indian sources, so as to present a net figure;
c) insofar as possible, estimate the portion of these moneys directly going to the fol-
lowing recipients:
band governments or other band entities
tribal councils
regional or provincial organizations
national organizations
other bodies and recipients of program funds, e.g., friendship centres,
newspapers, training programs, etc.
individuals living on reserves
individuals living off reserves
d) when funds are voted generally for aboriginal people, estimate the proportion of
the moneys-intended for status Indians, non-status Indians, Métis and Inuit.
e) identify where possible whether moneys voted are in the form of statutory pay-
ments, grants, accountable transfers or goods and services and comment on the
reasons for each form of payment including whether they appear in votes 10 and
15; and when possible, indicate when the payments fall under treaty obligations,
aboriginal rights or trust responsibilities;
f) indicate where moneys voted are not subsequently expended and where funds
have been transferred from one allotment to another;
g) indicate where moneys are discretionary or non-discretionary.
2. Identify separately, where information is readily available, funds being provided by
provincial governments and authorities. Federal funding provided through the two
territorial governments should be identified separately.
3. Insofar as possible, identify the proportion of the moneys voted that is directly trans-
ferred to Indian people or expended on goods or services for their direct benefit. Pro-
vide information on the amount of funds voted that do not reach Indian people and
identify what happens to those funds. In particular, when funds are administered by
Indian bands and / or their organizations for the delivery of services, assess the extent
to which there is duplication of administrative structures, or whether there has been
no corresponding reduction of person years and dollars in DIAND.
Comment on the reasons for the results.
4. To gain information in a specific instance, examine the present situation involving
two or three Indian bands or tribal councils (to be determined following further
inquiries) that have in the last few years assumed responsibility for the delivery of a
number of services previously administered by DIAND. Compare the present situa-
tion with what would exist if the band had not assumed its present responsibilities.
Assess what changes in federal administration costs, if any, have occurred in the
DIAND district and region concerned and in Ottawa as a result of this transfer of
administrative responsibility. Examine the new administrative structures put in
place by the band, compare its costs with the cost of the alternative administrative
structure and make an assessment of relative cost effectiveness.
5. Estimate the costs incurred by DIAND and other agencies of the federal government
specifically in securing the information that they deem necessary to account to Par-
liament for funds transferred to Indian bands and/or their organizations. Comment
on the financial burden placed on Indian bands and/or their organizations by the
requirements of accounting.
Suggest alternative and less costly means of accounting for financial transfers.
6. Provide annual expenditure totals for DIAND and other departments where appropri-
ate by program for housing, education, economic development, social welfare, social
services and health. Include cumulative totals for the last decade, and comment on
spending trends in real terms. Where possible provide comparisons with concrete
results.
7. Examine and comment on the 1980 report of the Auditor General on Di/\ND’s man-
agement policies and performance and the Department’s response to that report. In
particular, the Auditor General pointed to discrepancies between project expendi-
ture listed in the estimates and reported in the public accounts. On a random basis
and using a few selected projects, seek to explain differences between the amounts in
the estimates, the national program operational plan, DlAND’S responsibility centres
and cost elements and the actual expenditures as recorded in the public accounts and
such other financial reports as FINCON.
8. Review the various methods by which federal services are now delivered directly by
line departments or agencies and the nature of supervision exercised in these
instances by DIAND. Comment on the possibilities for reducing any duplication of
administration that may exist within the federal bureaucracy through more wide-
spread use of direct delivery of services by line departments and on other conse-
quences which such an approach might have.
9. Consider new approaches to funding the functions of government, including the
provision of services to Indian peoples in Canada, commenting in particular on the
implications of direct transfers of federal funds to Indian governments at the band
or other levels. In doing so, look at Canadian experience with transfers to provincial
governments and Crown corporations. Assess such approaches in terms of adminis-
trative efficiency, accountability to Parliament, and the effect on the development of
Indian government.
10. Review the structure and funding of Canadian organizations intended to promote
international development, including government agencies such as CIDA and the
IDRC and non-governmental organizations such as CUSO, to assess their utility as
models in future for making federal funds available to Indian governmental and
non-governmental organizations to promote development in Indian communities and
among Indian peoples in Canada.
APPENDIX G
MEETINGS IN THE UNITED STATES
January 31 to February 4, 1983
Washington, D. C.
Institute for the Development of Indian Law
National Tribal Chairmen’s Association
Native American Rights Fund
Bureau of Indian Affairs
Congressional Committees Staff
Indian Health Service
Administration for Native Americans
Indian Law Resource Centre
Council of Energy Resource Tribes
American Indian National Bank
National Congress of American Indians
New Mexico
Eight Northern Indian Pueblos Council
Visits to Tesuque, Taos, Santo Domingo and San Felipe Pueblos
APPENDIX H
COMMITTEE STAFF
Committees and Private Legislation Branch
Mr. Francois Prégent, Clerk
Mr. Eugene Morawski, Clerk
Mrs. Micheline Rondeau-Parent, Clerk
Mr. Pierre de Champlain, Clerk
Mrs. Line St. Jacques, Secretary
Research Branch, Library of Parliament
Mrs. Barbara Reynolds, Research Officer
Mrs. Katharine Dunkley, Research Officer
Mr. Bruce Carson, Research Officer
Parliamentary Centre for Foreign Affairs and Foreign Trade
Mr. Peter Dobell, Policy Co-ordinator
Members’ Staff
Ms. Penelope Muller, Assistant to the Chairman
Miss Iva Vranic, Assistant to the Vice-Chairman
Mr. Stuart Herbert, Assistant to Mr. Manly
Bett Tsa-Me-Gahl, Assistant to Mr. Manly
Mr. Randy Potts, New Democratic Party Research
Ms. Lynn Belsey, Assistant to Mr. Oberle
Assembly of First Nations
Rarihokwats, Researcher and Assistant to Ms. Jamieson
Mr. Danny Gaspe, Researcher
Miss Gail MacDonald, Researcher
Native Women’s Association of Canada
Ms. Elizabeth Moore, Researcher
Native Council of Canada
Mr. Bill Lee, Researcher
Humphreys and Associates
Mr. David Humphreys, Press Attache
Mr. Peter Lockyer, Press Attache
Mr. Pierre La Traverse
Mr. Steve Hall
First Nations Consultants Inc.
Mr. Daniel Brant, Advance Person
Editors
Miss Kathryn Randle
Miss Lise Lebeau
Cover Artist
Mr. Leo Yerxa
A copy of the relevant Minutes of Proceedings and Evidence of the Sub-committee on
Indian Self-Government (Issues Nos. 1 to 17 inclusive) and of the Special Committee on
Indian Self-Government (Issues Nos. 1 to 39 inclusive and No. 40, which contains the
Second Report) is tabled.
Respectfully submitted,
KEITH PENNER,
Chairman.
MINUTES OF PROCEEDINGS
WEDNESDAY, OCTOBER 12, 1983
(109)
The Special Committee on Indian Self-Government met in camera at 3:50 o’clock p.m.,
this day, the Chairman, Mr. Penner, presiding.
Members of the Committee present: Messrs. Allmand, Manly, McDermid and Penner.
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.
The Committee resumed consideration of its Orders of Reference dated Wednesday,
December 22, 1982 and Monday, September 12, 1983.
The Committee resumed consideration of its draft Report.
On motion of Mr. Manly, it was agreed,—That the draft report be adopted as the Com-
mittee’s Second Report to the House and that the Chairman be instructed to present it to the
House.
At 10:54 o’clock p.m., the Committee adjourned to the call of the Chair.
THURSDAY, OCTOBER 20, 1983
(110)
The Special Committee on Indian Self-Government met in camera at 3:52 o’clock p.m.,
this day, the Chairman, Mr. Penner, presiding.
Members of the Committee present: Messrs. Allmand, Chenier, Manly, Oberle and
Penner.
Ex-officio member present: From the Assembly of First Nations: Ms. Roberta
Jamieson.
In attendance: From the Research Branch of the Library of Parliament: Mrs. Barbara
Reynolds and Mrs. Katharine Dunkley, Research Officers.
The Committee resumed consideration of its Orders of Reference dated Wednesday,
December 22, 1982 and Monday, September 12, 1983.
The Committee proceeded to consider its future business.
On motion of Mr. Oberle, it was agreed,—That the contracts for services of the editors,
Miss Kathryn Randle and Miss Lise Lebeau be extended under the same conditions of the
original contracts.
On motion of Mr. Allmand, it was agreed,—That the Committee print 30,000 copies of
the English version and 5,000 copies of the French version of Issue No. 40, which contains
the Committee’s Second Report to the House and that a distinctive cover be attached to all
copies of Issue No. 40.
On motion of Mr. Manly, it was agreed,—That copies of the Committee’s Second
Report be sent to all of the following:
1. All witnesses who have appeared before the Sub-committee and the Special Com-
mittee on Indian Self-Government;
2. All Chiefs and Councils;
3. All Tribal Councils;
4. All names on the lists submitted by the Assembly of First Nations, the Native Coun-
cil of Canada and the Native Women’s Association of Canada.
5. The Premiers of the ten provinces and the leaders of the governments of the N.W.T.
and Yukon.
6. All members of provincial and territorial legislatures.
7. Representatives of the Inuit Tapirisat of Canada.
On motion of Mr. Manly, it was agreed,—That the following four research projects,
which were commissioned by the Committee, be filed as exhibits with the Clerk of the Com-
mittee and that they be made available based on the cost of reproduction: (for description of
each research project see Appendix F of Committee ‘s Second Report to the House)
1. Questions relating to the economic foundation for Indian Self-Government (Tha-
lassa Research Associates). Exhibit XX
2. Various models for relations between indigenous peoples and governments (Policy
Development Group). Exhibit YY
3. Trust relationships between the federal government (the Crown) and the Indian peo-
ples of Canada (Arki and Nahwegahbow). Exhibit ZZ
4. Federal expenditures and mechanisms for their transfer to Indians (Coopers &
Lysband). Exhibit AAA
On motion of Mr. Manly, it was agreed,—That the Chairman, after consultation, be
authorized to approve the final version of the press release relating to the Committee’s
Second Report.
On motion of Mr. Allmand, it was agreed,—That, following the tabling of the Commit-
tee’s Second Report in the House, Mr. David Humphreys, press attaché, arrange and co-
ordinate press conferences and/or interviews for the members of the Committee and that
any extra expenses incurred by the members with respect to these conferences and/or inter-
views be submitted to the Clerk of the Committee for reimbursement.
At 6:09 o’clock p.m., the Committee adjourned to the call of the Chair.
François Prégent,
Clerk of the Committee.