Minutes of Proceedings and Evidence of the Special Committee on Indian Self-Government, 32nd Parl, 1st Sess, No 6 (15 February 1983)
By: Canada (Parliament)
Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Committee on Indian Self-Government, 32nd Parl, 1st Sess, No 6 (15 February 1983).
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HOUSE OF COMMONS
Issue No. 6
Vancouver, British Columbia
Tuesday, February 15, 1983
Chairman: Mr. Keith Penner
Minutes of Proceedings and Evidence
of the Special Committee on
The status, development and responsibilities of Band
governments on Indian reserves, as well as the financial
relationships between the Government of Canada and
(See back cover)
First Session of the
Thirty-second Parliament, 1980-81-82-83
SPECIAL COMMITTEE ON
Chairman: Mr. Keith Penner
Vice-Chairman: Mr. Stan Schellenberger
Clerk of the Special Committee
MINUTES OF PROCEEDINGS
TUESDAY, FEBRUARY 15, 1983
The Special Committee on Indian Self-Government met in Vancouver, British Columbia at 9:24 o’clock a.m., this day, the Chairman, Mr. Penner, presiding.
Members of the Committee present: Messrs. Allmand, Manly, Oberle, Penner, Schellenberger and Tousignant.
Ex-officio member present: From the Assembly of First Nations: Ms. Roberta Jamieson.
Liaison members present: From the Native Women’s Association of Canada: Ms. Sandra Isaac. From the Native Council of Canada; Mr. Clem Chartier.
In attendance: From the Research Branch of the Library of Parliament: Mrs. Barbara Reynolds and Mrs. Katharine Dunkley, Research Officers. From the Parliamentary Centre for Foreign Affairs and Foreign Trade: Mr. P.C. Dobell, Policy Co-ordinator.
Witnesses: From the Union of British Columbia Indian Chiefs: Chief Bob Manuel; Chief Gerald Etiene and Chief Saul Terry. From the Musqueam Indian Band: Chief Ernie Campbell; Mr. Jim Reynolds, Lawyer; Mr. Marvin Storrow, Lawyer and Mr. Andrew Charles Band Member.
The Committee resumed consideration of its Order of Reference dated Wednesday, December 22, 1982.(See Minutes of Proceedings, Wednesday, December 22, 1982, Issue No. 1.)
Chief Manuel and Chief Etiene from the Union of British Columbia Indian Chiefs, each made a statement and, with Chief Terry answered questions.
Chief Campbell, Mr. Storrow and Mr. Reynolds from the Musqueam Indian Band, each made a statement and, with Mr. Charles, answered questions.
The Vice-Chairman assumed the Chair.
On motion of Mr. Oberle it was agreed that the following supporting documents to the Musqueam Indian Band presen- tation be filed as an exhibit with the Clerk of the Committee: (Exhibit-D)
i) Band Council Resolution re: Application for Section 4(2) proclamation Section 12(1)(a) and l2(1)(b) of the Indian Act;
ii) Summary and Conclusions relating to the powers of the Minister of Indian Affairs and Northern Development in relation to Reserve Lands;
iii) Presentation by Jim Reynolds, Solicitor for the Band.
At 1:32 o’clock p.m., the Committee adjourned until 2:30 o’clock pm. this afternoon.
The Special Committee on Indian Self-Government met in Vancouver, British Columbia at 2:50 o’clock p.m., the Vice- Chairman, Mr. Schellenberger, presiding.
Members of the Committee present: Messrs. Allmand, Manly, Oberle, Penner, Schellenberger and Tousignant.
Ex-officio member present: From the Assembly of First Nations: Ms. Roberta Jamieson.
Liaison members present: From the Native Women’s Association of Canada: Ms. Sandra Isaac. From the Native Council of Canada: Mr. Clem Chartier.
In attendance: From the Research Branch of the Library of Parliament: Mrs. Barbara Reynolds and Mrs. Katharine Dunkley, Research Officers. From the Parliamentary Centre for Foreign Affairs and Foreign Trade: Mr. P.C. Dobell, Policy Co-ordinator.
Witnesses: From the Sto:Lo Nation: Chief Clarence Pennier, Scowlitz Band, Reprentative to the Confederacy of Nations; Chief Mark Point, Skowkale Band, Vice-Chairman of the Executive Committee and Chief Ron John, Chawathil Band, Member of the Executive Committee. From the Bella Coola District Council: Mr. Archie Pootlass, Chairman; Chief Lawrence Pootlass, Hereditary Chief and Chief Edward Moody, Nuxalk Band. From the 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 and Councillor Anne Quinn.
The Committee resumed consideration of its Order of Reference dated Wednesday, December 22, 1982. (See Minutes of Proceedings, Wednesday, December 22, 1982, Issue No. 1.)
Chief Pennier, Chief Point and Chief John from the Sto:Lo Nation, each made a statement and answered questions.
The Chairman assumed the Chair.
Chief Pootlass from the Bella Coola District Council opened their presentation with a prayer.
It was agreed that Parts II and III of the Bella Coola District Council submission to the Committee be printed as appendices to this day’s Minutes of Proceedings and Evidence.
i) Part II—Indigineous Aboriginal Governments As The First Order of Government in Canada: Background paper (see Appendix “SEND-7”);
ii) Part III—Indigineous Aboriginal Governments As The First Order of Government in Canada: Main Points of Difference betwen the Minister of Indian Affairs and the Bella Coola district Council. (See Appendix “SEND-8”)
Mr. Pootlass made a statement and answered questions.
Chief Moody made a statement.
Chief Craigan from the Sechelt Indian Band Council made a statement and, with the other witnesses, answered questions.
On motion of Mr. Allmand, it was agreed that the document entitled: “Proposed Indian Band Government Act” tabled by
the Sechelt Indian Band Council be printed as an appendix to this day’s Minutes of Proceedings and Evidence (see Appendix “SEND-9”)
At 6:38 o’clock p.m., the Committee adjourned to the call of the Chair.
Clerk of the Committee
Tuesday, February 15, 1983
(Recorded by Electronic Apparatus)
Tuesday, February 15, 1983
The Chairman: This session of the Special Committee on Indian Self-Government is called to order.
Before we get under way, we will allow the photographer some time to do a photo session. We are awaiting a brief, which will be distributed shortly to members of the special committee, the brief prepared by the Union of British Columbia Indian Chiefs. While we are waiting, I will just introduce the members of the special committee.
My name is Keith Penner. I am a member of Parliament from northern Ontario. With me are Mr. Stan Schellenberger, a member from Alberta, who is the vice-chairman of the committee; Mr, Henri Tousignant, Parliamentary Secretary to the Minister of Indian Affairs and Northern Development; Miss Sandra Isaac, who is a liaison member of the committee, representing the Native Women’s Association of Canada; Mr. Jim Manly, member of Parliament from British Columbia, the constituency of Cowichan—Malahat—The Islands; Mr. Clem Chartier, our second liaison member, representing the Native Council of Canada; Mr. Frank Oberlc, member of Parliament from British Columbia, the constituency of Prince George Peace River; Ms Roberta Jamieson, who is our ex officio member sitting on the committee, representing the Assembly of First Nations; and Hon. Warren Allmand, member of Parliament from the Province of Quebec, the constituency of Notre-Dame-de-Grâce—Lachine East, a former Minister of Indian Affairs and Northern Development.
I would advise members of the committee that the brief prepared for us by the Union of British Columbia Indian Chiefs will be circulated shortly. In order that we do not delay our proceedings, we will commence at this time to hear from the Union of B.C. Indian Chiefs.
Chief Manuel, would you commence the reading? Then, when the briefs are ready, they can be distributed to the members.
On behalf of the special committee, I want to welcome Chief Bob Manuel of the Union of B.C. Indian Chiefs. Chief Manuel, if you would like to introduce the members of your delegation and then commence with the reading of your submission, we would be happy to hear it. If you are agreeable, at the end of that, we would like to ask you some questions and have some discussion with you about your submission.
Chief bob Manuel (President/Chairman, Union of EC. Indian Chiefs): Thank you, Mr, Chairman.
First, I would like to introduce our witnesses today: Chief Mike Leach; Chief Saul Terry, Vice-President of the Union of B.C. Indian Chiefs; Willard Martin, a consultant administrator, here with us as a witness because of some technical things on which we may be questioned; and also, Gerald Etienne,
Chief of the Bonaparte Indian Band, who has some matters he wants to bring before the committee. I think it is relevant and in line with the submission we have today.
Mr. Oberle: On a point of order, I cannot hear a thing. Can these microphones be adjusted somehow?
Chief Manuel: Do you want me to go through the introductions again?
Mr. Oberle: No, that is fine. I do not think it would help to talk louder, but . . .
The Chairman: Thank you, Mr. Oberle, for the point you have raised. The technicians advise me, if the members of the delegation plus members of the special committee will speak directly into the microphone as closely as possible, it should be easy for us to hear. If you would assist the technicians in that regard, it would be appreciated.
Chief Manuel: Do I have the floor again?
The Chairman: Go ahead.
Chief Manuel: On behalf of the Union of B.C. Indian Chiefs, I welcome the Sub-committee on Indian Self-Government of the House of Commons to British Columbia. This is the second occasion in recent months that members who are a part of this special committee have travelled to British Columbia to listen to the Indian people of this province and we greatly appreciate the effort that you have made. Given the fundamental importance of the issue being considered by this special committee, I am especially pleased to appear before it.
First, I would like to make some general remarks on what we, the first nations, base our right to government upon. Then I will proceed to make comments on the status of Indian band governments as they have been and presently are. Within this portion of the presentation, Chief Gerald Etienne, of the Bonaparte Indian Reserve, will elaborate on their particular experiences. Then I will continue to canvas our recommenda-tion to this committee.
We are first nations. We have aboriginal titles and aboriginal rights to the territories of our people. There is no legislation or constitutional provision which can alter this fact. We are born with these titles and rights, therefore, they are ours by birth. We can neither sell nor give away such aboriginal titles and rights. As the first nations, this is our position.
As first nations, it has been our experience that the Canadian government and the provincial governments have aggressively, consistently attempted to have us change our position. This is beyond our control. Our grandfathers and fathers never sold or gave up our aboriginal rights and aboriginal title and this generation cannot do any differently.
This special committee must understand and respect our position. It is in light of this position that we sit here before you today. As first nations, we are prepared to talk to the Canadian government on matters of a remedial nature, which will relieve the poverty and hardship which our people
presently suffer under. This does not, however, mean that we recognize the Canadian government’s claim of colonial title over the territory of Canada.
By colonial title, I mean that Canada has claimed the territory of Canada under the colonial doctrines of discovery. These doctrines are not acceptable to Indian peoples, nor will they ever be acceptable to the Indian peoples. Indeed, the colonial doctrines of discovery have no place in a world which has fought so hard, for so long, to rid itself of colonialism. Need I remind this special committee of the United Nations’ declaration on decolonization and the condemnation of colonialism in all its manifestations, and how those declarations received wide support.
The Chairman: Chief Manuel, we apologize to you for the interruption. The members of the special committee are indicating that, because of the acoustics and the set-up of the equipment, they are having some difficulty in hearing. They want very much to hear every word you are saying, because we know that a good deal of careful preparation has gone into your submission. Therefore, I am going to call a five-minute recess. The technicians tell me that if they set up some sound equipment behind us it will facilitate the proceedings. I apologize to you for interrupting. We will ask the technicians to work on that and see if the arrangements cannot be significantly improved. Thank you.
The Chairman: Bob, thank you for your patience and understanding. We will try again. I think the addition of the equipment behind us will help. Would you like to commence where you left off?
Chief Manuel: Aboriginal title and aboriginal rights are the foundation upon which Canada can rid the world of yet another form of colonialism. The road to decolonization of the Indian peoples of Canada is a long one indeed. This road must, however, be taken, and it must be marked by the co-operation and understanding associated with responsible nations’ This is why we are here today.
Furthermore, the Union of BC. Indian Chiefs fully supports the declaration of the First Nations and the treaty and aboriginal rights principles as adopted by the Assembly of First Nations’ It is the position of the Union of BC. Indian Chiefs that the First Nations are sovereign. Consequently, the Union of B.C. Indian Chiefs do not support the department in their effort to merely evolve the administrative authority to bands, since this does not respect the sovereignty of the First Nations.
From the outset, it must be understood that Indian nations have not given up their right to govern themselves. This right is inalienable. This right is the result of our aboriginal title.
There have been a number of proposals made respecting how Indian governments will fit into confederation. Some people have expressed their thoughts on this matter by using the terms, “Indian Province”, “Third Order of Government”, or “Indian Legislature”. Whatever title he has used to describe the emerging Indian government formula, it is clear that one thing they all have in common is that Indian government must be part of the constitution of Canada and not merely a creation of legislation.
At this point, I would like to table with this special committee the “Union of British Columbia Indian Chiefs’ Position Paper on Aboriginal Rights”, which was adopted in 1979 and still remains our position. This paper deals with the issue of the jurisdictions of Indian government. This paper must be read in conjunction with what we have said here today.
Obviously, at this time it would be too premature and out of place to describe how Indian government is to become part of confederation. This discussion is presently taking place in other circles. Whatever the outcome of these discussions are, they will ultimately take precedence over measures that will be discussed here today.
Status of Indian Band Governments: In reviewing the present status of band governments on Indian reserves, it is necessary to first understand the reason why Indian band governments were established. In doing this, it is important to realize that Indian band councils, as they presently are known, are not a traditional form of government for Indian peoples. On the contrary, they are a system of government which was imposed upon the Indian peoples. Indeed, its primary purpose was to supplant the traditional forms of government of Indian peoples.
Indian band councils are the legislative creatures of Parliament, not an Indian government. This fact has complicated and frustrated the efforts of Indian people to achieve their goals and objectives, since their efforts were always inhibited by the Indian Act. In fact, Indian band councils, as Indian community leadership, have to be accountable to the Department of Indian Affairs, as well as to their Indian constituents, This has put every council in a dilemma whenever the policies of the department are not congruent with the aspirations and policies of the people.
It is apparent that the Department of Indian Affairs continually tries to use the Indian band councils for their own purposes. The department has an advantage in playing this game by the fact that tbcy have the legislative power to do so as well as the financial resources to influence the decisions of council. The only recourse that the band councils have is to organize themselves as a group of bands and state their positions respecting departmental direction and policies. The department, however, is under no obligation to listen to, nor accept, the position and recommendations of the bands.
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. According to the departmental policy, the department is to consider fiscal control and management as being the primary criterion for continuing to fund bands and their programs.
Nevertheless, the department resorts to an unwritten political assessment of bands to determine the level and continuation of funding to bands. Bands which share or succumb to the department political direction are given preferential treatment while bands which are adverse to departmental political direction are held to the strictest financial and management accountability.
There is no clearer illustration of this contention than the comparative analysis of the financial and management accountability between the Bonaparte Indian band and the Ncskatnlith Indian band during the fiscal years 1981-1982 and 1982-1983. But before I elaborate on this further, I would like to provide you with some general background on departmental procedure respecting funding to bands. The department requires that each band prepare and submit quarterly state- ments to. the department and a year-end audit, and sign contribution agreements in order to receive funding for programs. It is through this process that the department claims that it controls the spending of bands. There is, however, a deviation from the simple formula when it comes to the administration of the Bonaparte Indian hand during the periods referred to above.
At this time, I would like to turn the witness stand over to my colleague, Chief Gerald Etienne of the Bonaparte Indian Reserve. He will provide you with evidence respecting the events of the Bonaparte Reserve which will substantiate my contention that the department does not uniformly fund programs to bands.
Chief Gerald Etienne (Bonaparte Indian Reserve, Union of B.C. Indian Chiefs): Thank you.
First, I would like to thank the members of the special committee for allowing me this opportunity to provide evidence before you on a matter which is of pressing and urgent concern to my people. I would also like to thank Chief Robert Manuel for allowing me to make this presentation in conjunction with the Union of B.C. Indian Chiefs. I believe what I have to say today falls clearly within the terms of reference of this committee and that it addresses the present status of Indian bands with respect to the Department of Indian Affairs.
I will begin by providing you with a brief summary of events which led up to the present dilemma we are in. In January 1981, Chief Leroy Antoine was elected chief of my band for a period of two years. During the first year of his office we noticed that he was not calling band meetings, nor was he providing band members with financial information respecting
the affairs of the band. This disturbed many band members because they felt they were not being treated fairly and they suspected that the chief was mismanaging funds of the band.
On the basis of the 11-month tenure of Chief Leroy Antoine band members led by the chief’s brother, Eddy Antoine, occupied the band offices on December 18, 1981. Their primary issues were that the chief was not calling meetings, not opening council meetings to band members, and not sharing financial data.
On December 22, 1981, a number of band members called for the resignation of Chief Leroy Antoine and communicated this to the Department of Indian Affairs. The department’s response was that we did not have a leg to stand on, and that we were not conforming to the rules governing a democratic election for the office of chief. Nevertheless, Mr. Fred Walchli, Regional Director General, initiated an investigation of the situation on the reserve.
On December 23, 1981, the band members called their own nominations and elections, and new officers, including myself, were elected. About two-thirds of the band’s 76 registered voters participated in this election. The Department of Indian Affairs did not recognize this election.
In April 1982, band members urged the Department of lndian Affairs to take over the financial administration of the Bonaparte Indian band The department replied that there was no basis for their doing so.
June 30, 1982, was the last day for the band to file an audit report for the previous year. We have found no evidence that the audit was conducted or filed. Yet, the Department of Indian Affairs continued to fund the band office.
During July 1982, the occupation of the band offices were called off when the chief threatened to cut off the electricity to the office which, incidentally, supplied hydro for the water pumps which serviced the entire village.
On July 30, 1982, Mr. Fred Walchli, Regional Director General, signed a contract with the auditing firm of Yada, Tompkins, Humphries, Palmer & Co., to undertake a com- plete financial and management audit of the Bonaparte band. This contract was for the total sum of $19,500 and was to be completed by October 15, 1982.
On December 28, 1982, the preliminary financial audit and the preliminary management audit were completed by the chartered accountant company. These preliminary documents were not, however, immediately released to the band and, indeed, were only accidentally received by the band on February 12, 1983.
Incidentally, on January 26, 1983, I was officially elected Chief of the Bonaparte band by a clear majority. As one of my first duties, I inquired as to the state of the financial records of the band and requested that the Department of Indian Affairs provide us with a copy of the approved audit. To date, we have not received an approved audit for 1982. I have been informed personally by the chartered accountant company that the final audit was to be completed either on February 11, 1983, or February 14, 1983, and they were instructed by the Department of Indian Affairs not to release the audit to the band council upon completion.
What disturbs our band council the most is that the Department of Indian Affairs have been aware of mismanagement of the affairs of our band for over a year now and were very slow in responding to our request that they take corrective measures, Only after our continued insistence did they initiate a full financial and management audit. The preliminary audit clearly stated that there was evidence of mismanagement and made strong recommendations that the Department of Indian Affairs decentralize funding for major programs, including social assistance and housing. Furthermore, the preliminary audit recommended that the department itself seek legal advice with respect to some of the apparent problems in accountability.
In light of these preliminary findings, it amazes the present chief and council that instead of Mr. Fred Walchli, Regional Director General, taking immediate action by withdrawing funds and accelerating the audit process, Mr. Fred Walchli instead continued to fund the previous band administration, and ’13 appears, de-accelerated, the auditing process, Indeed, the instructions to the auditing firm to not release the com- pleted audit to my council smells of cover-up.
The Bonaparte Indian Band would, therefore, like to ask this committee to assist us in securing this audit from the Depart- merit of Indian Affairs immediately. We make this request to you because we really have no other body to turn to. We know Mr. Fred Walchli signed the contract with the auditing company and that he must be behind the instructions for them not to release the audit to us. Where do we turn to? Mr. Fred Walchli is the Regional Director General.
Furthermore, we would like to request this special commit- tee to assist us in securing a remedial budget which is vitally necessary during this transition period. I would like to point out that at this time we have no money whatsoever to operate the administration of the band. Needless to say, this places our council and, more important, our people in a vulnerable position.
If this special committee decides not to assist us in this matter, we urgently request that you place this matter on the agenda of the Standing Committee on Indian Affairs and Northern development on which all of you, except Ms Jamieson, sit.
In closing, I would like to reiterate and support the position taken by Chief Robert Manuel in his presentation in which he contends that the department does not always fund bands according to strict financial accountability, and also on an unwritten political criterion.
Also, I would like to thank you once again for this time and inform you that I will be available for questioning after you have heard the remainder of my brother chiefs presentation. As well, at this point I would like to table some information in regard to my statements. Once again, thank you very much.
Chief Manuel: To follow up on what Chief Gerald Etienne, said I would like to say that this was not the case with the financial relationship between the Neskainlith Indian Band and the Department of Indian Affairs during the same period. The department held the Neskainlith Band strictly to the rules of the quarterly statements and year—end audit, but neverthe- less were very slow in transferring funds committed to the band under the contribution agreements signed between the band and the department. The tardiness of the department’s financial transfer resulted in bank charges of the order of a magnitude of $9,000 per year. The discrepancies between the treatment of the Bonaparte Indian Band and the Neskainlith Indian Band during the same period must be explained in order to maintain confidence in the departmental reporting system. This is especially true in light of fact that both bands are in the same departmental district.
It should also be mentioned that the Neskainlith Indian Band has been a very strong proponent of the development of Indian government by Indian people themselves. This has on numerous occasions obliged the Neskainlith Indian Band to take stands that were adverse to the departmental directions and policies. These positions undoubtedly never went unnot- iced by the Department of Indian Affairs.
Recommendations to the special committee. Under the power of Section 91(24) of the Constitution Act in 1982, the Parliament of Canada has the power to make legislation respecting Indians and lands reserved for Indians. It is under this power that the Indian Act was made legislation, and it was under this power that the Department of Indian Affairs is proposing that the Indian government bill be passed into legislation.
It is the recommendation of the Union of British Columbia Indian Chiefs that the Parliament establish a new ministry to assist bands in the development and reconstruction of their band Indian governments. The reason we make this recom- mendation is because the Department of Indian Affairs has failed dismally in drafting policies, regulations and legislation in the past. There is no indication that this trend will reverse
itself, especially in light of the fact that the department has been controlled by an unchanging bureaucracy. Therefore, 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 respecting the development and reconstruction of band government. The working relationship which this ministry would be designed to produce is one of co-peration and support for the development and reconstruction of band Indian government.
It is my fear that the many findings and recommendations which this special committee will make in their final report will be ignored by the government. I base this fear upon the fact that the only parliamentary vehicle which can translate your findings and your recommendations into policies and legislation is the Department of Indian Affairs. Therefore, even though your report may be very acceptable to Indian people, it may be of no practical benefit to Indian people. The Department of Indian Affairs will by its very nature oppose these things in your report which Indian people find acceptable and they will allocate all of their resources to those things which Indian people find unacceptable. This may sound like a prejudgment, but I assure you that it is based upon a long history of experiences and I believe it will be borne out.
This may make me sound skeptical and cynical, but as long as the Department of Indian Affairs is the key player and the only player in shaping the legislative lives of Indians, then there will always be a climate of distrust and antagonism between Indian people and the government.
With respect to the present Indian Act, I take the view that it must remain in place. It is the legislation under which bands presently operate, despite the fact that many bands still do not know what the Indian Act is. Nevertheless, it is the framework under which present programs and essential services are administered, and to repeal it would be very disruptive.
The Indian Act, so to speak, will be the starting point from which all bands will begin down the road to stronger and more effective band government. This would mean that the Depart- ment of Indian Affairs, as we know, it will remain essentially the same during the initial period. Its role, however, will change to a greater or lesser degree, according to the pace which Indian band governments are developed.
In regard to the Indian government bill, it is the union’s position that it is drafted by the Department of Indian Affairs to fulfil their objective of making Indian reserves remain under federal and provincial jurisdiction, and consequently is not acceptable to us.
However, according to the minister, there are some bands which are encouraging him to support the passage of the Indian government bill. This does not mean, however, that all bands, or even a majority of bands, support the option of coming under the Indian government bill. But if some bands want to go under the Indian government bill, that is their choice. However, if they decide not to, then what alternative
do these bands have? Under the ministers Indian government bill formula of dealing with band government he provides only one option, his option, because if he says that remaining under the Indian Act is an option, then to go nowhere is a valid choice, according to the minister.
What I recommend is that Indian bands must be given the absolute right to develop their own legislative options, and it is up to Parliament to see to it that Indian people are accom- modated through the establishment of an entirely new ministry, a ministry which is not saddled with an intransigent bureaucracy which has all sorts of negative preconceptions of what Indian people should be.
Specifically, the new ministry would be a small operation with a large developmental budget. The developmental work of the ministry would be carried out for the larger part by the bands themselves. The ministry’s role would be to provide input in terms of government positions respecting the develop- ment directions set by bands. The ministry would also introduce the necessary admendments to existing legislation which are necessary to accommodate the jurisdictional requirements inherent in the proposed band expansion.
The legislation introducing the new ministry must be flexible so that the minister responsible for this portfolio would be able to meet with bands on their terms. The legislation’s primary function would be development of band Indian government in whatever form band governments may take. The positive feature in approaching the development of band government in this manner is that bands would be able to deal with all of their concerns and aspirations in a wholistic approach. On the government’s part, they will be able to deal with Indian issues with a fresh approach. These mutually beneficial approaches are absolutely essential for the develop- ment to occur.
The Chairman: Thank you very much, Chief Manuel. Are there any further comments or additional comments from members of your delegation?
Chief Manuel: We will answer questions.
The Chairman: Thank you very much. I will begin the questioning by calling on Mr. Oberle.
Mr. Oberle: Thank you, Mr. Chairman. Good morning, Bob and brother chiefs. As usual, you present us with an unusual problem. Not that we are worried about that; this is the kind of information we need to address ourselves to the mandate we have to study and make recommendations toward an improved fiscal transfer arrangement and an improved relationship between the Indian bands and the government.
As you know, when we begin to study this question of the Bonaparte Band, the answer from the regional office is going to be that it would be only as a very last resort that they should be allowed to interfere with the affairs of a band. You have made some very serious allegations. The misappropriation of funds is particularly disturbing when funds that are earmarked for social assistance and housing and for such essential services are misappropriated.
What Mr. Walchli is likely going to tell us, if and when we call him before our committee again, is that the band elected itself a chief, and he took over the administration, and it was really not his role to intervene, for fear that he would be accused, usually by us, by the committee, of meddling in the affairs of a band.
The first question I would like to ask maybe Chief Etienne is, as Mr. Manuel said, present band council structure is not a form of Indian government. What it is is rather an extension of the Department of Indian Affairs, a sort of delivery system of the Department of Indian Affairs or the Minister of Indian Affairs. What kind of a system—and have you given thought to that—would be in place in the Bonaparte Band if you were asked to build your own government structure? What kind of safeguards would there have been in the traditional way of governing the Bonaparte Band to prevent this kind of abuse by one of your own elected or appointed officials?
Chief Manual: So far in my community, since I have been elected, I have always placed it before the general assembly that if there is a vote of non-confidence, I will resign. I think the majority of the general assembly has that right, and in the Bonaparte situation they are looking at means and ways of removing chiefs and councils.
Mr. Oberle: You do not have any hereditary chiefs in your tribal system, do you?
Chief Manuel: No, but there are many places that do.
Mr. Oberle: Yes, but your traditional way would have been to have an expression of no confidence, which would have required the chief to resign.
Chief Manuel: Yes. In our traditional system of chieftain- ship, we did not really hav a ereditary system. What we had was a traditional system. A chief was installed upon the death or his desire no longer to function as a chief or the non- confidence of the people. That was the system that was there before the Indian Act came into existence.
Mr. Oberle: You claim or allege complicity between the regional director general and Chief Antoine. You say that he is one of his preferred sons and that certain favours were extended to him that are not available to other chiefs or other band members. Is that what you are saying?
Chief Manuel: Absolutely. I would say that he was in complicity, because if we did not produce an audit by June 30, or have some arrangement whereby the auditor was going to deliver the audit and that arrangement was understood by the department, we would not have money after June 30. There is no audit. Supposedly it was completed on February 11, or yesterday, in fact. But my band would not be able to get away with that, and I do not know, really, of any band that would get away with it. I was very surprised when gerald shared this information and I reviewed what was there that there was not. . .So there had to be complicity with the department.
Mr. Oberle: Chief Etienne, is there evidence that the chief used some of the resources, some of the money that was missing, for his own advantage, for his own gain?
Chief Etienne: Yes, there is specific information we have in our possession that certainly indicates personal gain.
Mr. Oberle: Have you made information of that sort available to the RCMP and other law enforcement—or other agencies, apart from the regional director?
Chief Etienne: What we have done, since my recent election, is to try to secure all financial documents, and because I am basically unqualified in the finance area, we have made efforts to secure chartered accountants to scrutinize and do what is required financially to review the financial records that we have had come to our attention. That was the first concern of my office: to get these documents to a chartered accountant so that things would be done in the foremost proper and correct manner, to ensure that the the public funds that were made available to my band were subject to an audit.
Mr. Oberle: You have not asked the RCMP to investigate any of the things that you alleged?
Chief Etienne: We did make efforts, during the sit-in . . . of our experience to the RCMP, and with some reluctance they have decided to wait until the Department of Indian Affairs is made available to assist them in this issue.
Mr. Oberle: Bob, could I ask you if you have any experience in that? In a situation like that, were it to involve, say, a municipal government which operates under the provincial municipal act, information could be laid with the RCMP and the commercial crime section of the force and they would investigate and prosecute under the municipal act. I am just wondering—I do not know… would the RCMP have the same jurisdiction under the Indian Act, or would they prevented, in fact, from interfering with the internal affairs of a band because of the special nature of band administration?
You are having as hard a time as we have in hearing.
Chief Manuel: Yes, I am having a difficult time hearing.
Mr. Oberle: I will get a little closer.
Bob, are you aware of any situation where the RCMP has investigated and laid charges under the Indian Act in cases similar to that described by Chief Etienne this morning?
Chief Manuel: I have heard of cases where the RCMP have investigated, but I have not heard of cases where they have actually laid charges.
Mr. Oberle: What I said earlier was, in cases where you have this kind of a situation in a municipality, under the provincial municipal act the RCMP would proceed on the strength of that act. I am just wondering whether they could in fact lay charges under the Indian Act. You have no experience in that?
Chief Manuel: No.
Mr. Oberle: Mr. Chairman, I have a couple of other questions, but I wish to… I do not know whether this would be the time to make a motion. It has not been our practice to do that. But certainly I wish to have placed on record my request that the documents which have been produced by the auditing firm and which are available to the regional office should be tabled before this committee immediately. In this way, we can decide whether we want to deal with it directly or refer it to the standing committee for our own inquiry.
I also wish to request that we immediately require regional officials, preferably of course, Mr. Walchli himself to appear before the standing committee at the earliest possible time to comment on these allegations and I would request, Mr. Chairman, that you consider calling before the committee the auditing firm that was involved in the audits. May I leave this with you at the moment, and ask you to comment on it later?
I recognize that time is awfully short and everybody wants to get on, but I really do want to ask you a couple of questions on your proposals for the establishment of a new ministry. That is a new approach because I am a little at loss to understand what the new ministry could do which the old ministry cannot do. The last thing we need is more bureaucrats and, usually, as soon as you appoint a new minister, the first obsession becomes to build a bureaucracy because his stature and recognition depends on the size of his bureaucracy. So first of all, what would you do with the old minister? He is a nice guy, you know, and we would not want any harm to come to him.
We have been kicking around an idea, or ideas have been brought to us in the course of our deliberations, about the establishment of an aboriginal rights commissioner. This would be an a-political thing similar to a human rights commissioner—people who have parliamentary powers to direct and hold inquiries and to direct departmental officials… in fact, sort of overseers directly responsible to Parliament. So would you not think that would be a better approach than to start a new ministry?
As I took it, and I may not have understood everything you said, but I think you said that you want to keep the Indian Affairs Act in place; to amend it where necessary, but use it as a basis to build a new Indian government act; that you want to do away with the ministry and phaze out this bureaucracy over a period of time.
Chief Manuel: Essentially, one of the problems which I see the committee facing right across this country is this: I understand that you have had presentations where people said that they do not want the Indian Act changed whatsoever, and that it should be left the same; yet, there is Munro coming down with the Indian Government bill. And one of the things I am concerned about is that we are getting placed in a position of “either/or”, and I think the committee must be flexible in terms of options and being able to accommodate the many different wishes that exist and the many different places or views that our people have. I think that is fundamental, if the
committee is going to be something different from what has been the case in the past. So I do not think there is one answer to the question which you have to address.
Certainly, in my band’s case and in the cases of many bands in British Columbia, there is no desire to go to the Indian government bill. There is no desire, necessarily, to remain under the Indian Act. So what do we have as an option? And I do not want to be placed in a position where I am condemning my brothers or fellow chiefs for wanting to go under the Indian government bill because, as far as I am concerned, that is part of self-determination, and they have that right to desire to go under the Indian government bill.
Second, I do not want to be placed in the position of condemning, promoting, or encouraging those people who want to remain under the Indian Act as it exists. In self-determina- tion, they do have the right to make that choice. But neither one of those options fit many of our bands.
Now, what is the mechanism? What I am concerned about is that there are many pieces of legislation which affect, and infringe upon, our governments currently. On the question of the ministry, I think that there could be consideration for a time period—that is, that it comes into existence only for a time period and, also, that their primary task would be to provide developmental dollars for those bands who want to evolve and put in place their Indian government structures.
I think the committee recognizes that the evolution and the construction of Indian government rests with us. We found it very difficult in appearing before this committee, to say what you should be introducing in terms of legislation, because there are so many pieces of legislation I think that need to be amended to allow us to do the kinds of things we want todo. I do not think there are very many Indian people who are conversant as to all the legislation..the various departments and legislation are creatures that you have made. Therefore, it seems more appropriate that you take the responsibility as a government, as Parliament, to find out all those pieces of legislation which infringe upon us.
At the same time, we are in the process of building our Indian governments, and that ministry would be responsible for, not so much overseeing what we are doing, or not so much for controlling or directing what we are doing, but it would be seeing what we are developing; it would be responsible for looking inwards and making amendments or proposals or preparing bills or whatever for amending the existing legisla- tion, so that what we want to do can go forward. I do not know if a commission can introduce amendments to legislation or new legislation in the House, but I think that is what is required.
Mr. Oberle: Well Bob, in fairness to the minister—and far be it from me to make any excuses for him, but in fairness to him, he did take an initiative, a courageous step, in proposing some kind of a model. He did this in response, obviously, to the clear expression of a desire to start with the development of some form of Indian government. Where he can be faulted is that he tried to build some kind of a universal system which would fit everybody. But again in fairness to him, let me say that he did build into his proposal the opting-in and opting-out
clause. He did say that anybody who wants to participate can. We know, of course, how that works in the long run. Those who participate get funding and those who do not, do not; so, eventually, you would be forced, or coerced, into the system. Where the system is faulty is. . . and let me tell you that throughout our hearing there has been universal rejection of the idea. But I want to be fair to the minister; he did take a courageous step. He knew that it would be shot down but he said, I am throwing something on the table; now you tell me what you want.
You see, what he is trying to do is to build an Indian government which would suit all 580 Indian bands. What has become quite obvious to me and I think probably most of my colleagues is that we will have instead maybe 580 different Indian governments and each band will be a member of a federation.
But again, Bob, this Indian bill is not a piece of legislation at this point; it is a discussion paper, Obviously, it will be rejected by this committee. But the establishment of a new ministry to do something new, I do not think is the answer. We should maybe tell the present minister or whoever follows him to listen to what this committee says and what you have told us, and to respond more positively to your issues.
I just do not see that a new ministry would do any more than whatyyou have right now, because a new minister would be a new minister of a Liberal government which would have the same attitudes the present government has, which would be reflected in anything the new minister would be doing as well.
Chief Manuel: I guess so long as it is within the Department of Indian Affairs, the powers do exist under Section 91(24) to create and establish a new means of relating to indigenous people. But I do not have the confidence, after the evidence that has been given today, and other evidence that has been given previously and at other times . . . the confidence that the department will be able to come forth with innovative ideas in line with what we want to do. It is very limited in its capability for doing that, because there are so many bureaucrats involved.
Maybe there is another way, but the parliamentarians, I suppose, are more qualified to know the exact way in which it can be done. This is a proposal which we thought was the only means by which to remove legislation that is impinging upon us; and I do not see the minister doing that on our behalf very adequately.
The Chairman: Thank you very much, Mr. Oberle.
Mr. Manly: Thank you very much, Mr. Chairman.
I would like to thank Chief Manuel and the members from the Union of British Columbia Indian Chiefs for a very informative brief.
I would like to go back to the situation on the Bonaparte Reserve and examine some of the possibilities that might occur under traditional Indian government. You pointed out, for
example, that in your own Indian government you require regular meetings, general assemblies, and if there were a vote of non-confidence you would resign. I would like to raise the question about what would happen under traditional Indian government if the chief did not call regular general assemblies and if the people themselves called some kind of a general assembly and passed a motion of non-confidence but the chief did not resign. What kind of appeal mechanism should be in place for the people of that nation?
Chief Manuel: The only appeal really is to the people in the community in a general assembly. I do not know. We run our government . . . In Neskainlith we have four levels of govern- ment; a fourth level evolving. First of all there is the general assembly, which is the highest power and authority. There is nothing higher than the general assembly. It is the law-making body. It is the policy direction body. The next level that is coming into place now is the family council; and then the band council and then the chief. So in the structure of our govern- ment the lowest level of power is the chief. The council is second-lowest.
Mr. Manly: But in terms of some kind of interface with the Government of Canada it tends to be the chief who is recog- nized. You presented a situation from the Bonaparte Reserve where there appeared to be a loss of confidence on the part of the majority of band members in the chief but the Government of Canada, through the Department of Indian Affairs, continued to recognize the chief. What mechanism should be in place so that if there were a loss of confidence in the chief on the part of ‘the general assembly, the Government of Canada would know that it no longer was to be dealing with that chief?
Chief Manuel: With me it is simple. In our place it is simple. I imagine if there were another chief who decided not to react… Right now most of what is coming into place is I guess a kind of traditional government, in the sense that that is just the way things are done. So long as it is entrenched in the minds of the people that that is the way things are done, then it becomes our constitution and our law. I guess where the problem comes in is if there is a violator who will not follow custom and tradition.
I know we could do it ourselves. Constitutionally, we could create a situation where we would be able to remove people from office; and we are looking at that now in terms of devising a constitution that provides for the removal of chief and council, ourselves.
Mr. Manly: So you would have some internal mechanism that would require that possibility. Have you also thought about the possibility of some kind of national Indian appeal mechanism so that if a group of people felt they were aggrieved with their own Indian government they could go beyond that government to some national body, whether it is composed entirely of other Indian people or whatever?
Chief Manuel: No. I think that is internal. That is internal. I cannot see us going somewhere else to appeal. I cannot see myself doing it. I must continue to have the confidence of the general assembly.
Mr. Manly: Right.
Chief Manuel: It is similar to your Prime Minister. If he continues not to have theconfidence of the House, then it is finished.
Mr. Manly: Well, good luck in getting a disciplined Liberal caucus, then.
I guess just as a person who receives a fair number of Indian concerns from band members who have lost confidence in their own government, this remains a continuing concern with me. . . and I know you are drawing a distinction between the present band council government and the traditional Indian government, but I still see that as a continuing concern, and I would ask you to consider the possibility of . . .
Chief Manuel: I suppose the real problem rests with the people, in this sense, because the Indian Act does not recognize the people. The chief and council are removed, and they are what is called the government, and they are over and above and it is a hierarchy system where they can pretty well do anything they want without the people. But what is emerging new more and more, and I see it in different bands that I travel to, is that the people are becoming the lawmakers, not so much the chief and council. So when you say they do not have confidence in their government, you cannot really say that, because the government is the people in general assembly. All you can say is they can lose confidence in the leaders of the government, not the government itself. The department has made us lose confidence in ourselves as people, but it is coming that the government is the people itself.
The other thing is that in many places the elders have a significant role to play in this kind of question, and usually they are—I do not know how many of you know old people, but in our communities they play a very significant role in resolving issues and problems.
Mr. Manly: Thank you for that.
I would like to turn now to Chief Etienne and get a few more details on the question of the audit. You say, on page 9, that you found no evidence that the audit for 1981-1982 was ever conducted or filed. Have you made formal requests of the Department of Indian Affairs to ask whether the audit was ever done?
Chief Etienne: I am sorry, I did not hear all your question.
Mr. Manly: On the top of page 9 you say:
June 30, 1982 was the last day for the band toiile an audit report for the previous year. We have found no evidence that theaudit was conducted or filed, yet the. Department of Indian Affairs continued to fund the band office.
My question is: What attempts were made to find out from the Department of Indian Affairs whether-or not that audit was done?
Chief Etienne: I made a specific request of the department to produce to our new chief and council the approved audit, and what was given to me upon that request was the approved audit of 1981.
Mr. Manly: For the year 1981?
Chief Etienne: Yes.
Mr. Manly: And when was that audit done?
Chief Etienne: When was the audit done?
Mr. Manly: Right.
Chief Etienne: The approved audit was for the fiscal year 1980-1981.
Mr. Manly: You have not received any information about the audit for the year 1981-1982?
Chief Etienne: No. No information was given to me by the department or was there an approved audit for that fiscal year.
Mr. Manly: Has the department indicated that there was such an audit conducted?
Chief Etienne: No, they did not specifically say and it was not brought to my attention by their office.
Mr. Manly: Okay, thank you.
With regard to the audit that was commissioned with Yada, Tompkins, Humphries, Palmer & Co., who is paying for that audit?
Chief Etienne: It was a contract between the Department of Indian Affairs and that chartered accountant firm.
Mr. Manly: So that it would not be debited to the account of the Bonaparte band.
Chief Etienne: It is a special contract between the department and the chartered accountant to undertake the investigative audit.
Mr. Manly: I share the concern that the band should have copies of that audit, but would it not be normal practice for the auditors who are doing the audit to have the responsibility to turn the audit over to the party that contracted with them to do it rather than to the band itself? Then it would be the responsibility of the Department of Indian Affairs to inform the band. Would that not be the situation?
Chief Etienne: Well, we are very much concerned for the money that was spent during that fiscal year and it is my knowledge that past moneys must be properly and correctly accounted for, so that future funding of my band can continue.
Chief Manuel: I guess one of the problems that the current council have, and I would have concerns about, is where do you begin? They got into office on January 26 and there is no audit and there is no clear indication of what the financial situation of the band is. Where do you begin? Everything is just up in the air now because it is not certain. There are a lot of expenditures that have occurred and the band, as I understand it, has an extremely high deficit now. There is no money for this administration to begin anew, the deficit is so great.
And that is why it was placed before this committee, to have the department provide them with a remedial budget so that they can begin to set up their administration, because it does not exist.
Chief Etienne: Just to comment further on that, with a little more information, the former chief and council had operated out of their personal residences. We do have a neutral band office for band activities and it was the onus of the former chief to remove the records from the band office and operate out of his home. This created such a dilemma and intimidation, It subjected our people to go to an administration that was reluctant to provide and make available departmental programs for those members in my community. . . to look to for assistance.
Mr. Manly: I would certainly agree that it is absolutely essential that the band get a copy of that audit as soon as possible.
I would like to ask Chief Manuel just a couple of questions to clarify the situation regarding the proposed Indian government bill. I notice that some of the chiefs from the Indian Assoctation of Alberta feel that the government is proceeding on a piecemeal basis, to introduce it without going the legislative route. Legislation might be brought in, and this legislation might be acceptable to a small number of Indian bands across the country because it suited their purposes. However, the majority of Indian bands across the country might feel there were provisions in it that led to termination . . . I understand that is one of the basic concerns about the proposals that have been made so far.
It seems to me that Indian bands would be faced with an either/or situation, that there might not ever be a third alternative; that people would either have the option of going under that new Indian government bill—there might be some financial inducements attached to it that would make it attractive—or they would have the other option of staying under the old Indian Act. I understand that neither option is very attractive either to you or to most of the Indian bands across Canada.
Yet I guess we are all in somewhat of a dilemma because you recognize the right of individual bands perhaps to have that kind of legislation if they want it, But if we, as members of Parliament, feel that the long-term results of it are assimilationist and lead to termination, do you think we should be supporting it, even though it has the support of a small number of Indian bands?
Chief Saul Terry (Union of B.C. Indian Chiefs): In relation to that question, I think we kind of view the Indian government bill as a narrow perspective of what it is that we Indian people are talking about. It is not dealing with the issues at all. We Indian people, especially in British Columbia, are saying that we have the title, it never was taken away in any way, and under that title we have these rights and they have never been resolved. The rights have never been discussed in terms of how
do we fit into this existing structure of government. I do not think that has been adequately addressed, especially when Indian people are directly involved. I think the idea was that this proposal. . . For instance, in fishing: In fishing, which is an important aspect in British Columbia, you have the Department of Fisheries and Oceans; they have a vested interest in terms of jurisdiction. We also have the Department of Indian Affairs, which has a vested interest in terms of jurisdiction through the existing structure. Also, the Indians have a position with respect to the question of jurisdiction. Here we have three bodies that are saying, essentially, we have the right to this through our title. In this head-to-head between the two departments and the Indians, we have a fourth party that wishes to elbow its way in, and this is the province. How do they fit into this whole jurisdictional question? I think we have to deal with that at some level.
I think what we are attempting to propose here is an avenue that would, perhaps, get it out of the way of the process that seems to be being pursued right now, and that is to neutralize the Indians in some way, especially with the Department of Fisheries and Oceans—which I am giving as an example—to neutralize them, so that they would not come into the picture. I do not think that is what Indian people are wanting, I think if, once again, something is imposed upon us, the problems will just continue to be there and perhaps even escalate.
The Chairman: Thank you very much, Mr. Manly.
I will turn next . . .
Mr. Manly: On a point of order, Mr. Chairman, we did not hear Chief Manuel’s comment on the last question.
Chief Manuel: I think the other aspect of it is that self- determination, in terms of making a choice—looking at it strictly in those terms . . . making a choice between… The extremes, I suppose, are sovereignty and assimilation. It seems that people are talking about something in between that. I guess that is the nature of this committee, that it has to understand that it has to deal with a lot of different . . . there is no one umbrella that is going to resolve the whole question. If bands choose to assimilate, that is their prerogative, I think what we are primarily concerned about is the option. What is the other alternative that you have to examine? You have two now: you have the Indian government bill and the Indian Act. Neither one is really acceptable, and what is the alternative to that?
What we are proposing is an alternative means. What you have to deal with—and it is very hard, I know, for all of you to understand, except, probably, for a few on the committee—is that we have a very difficult time with the concept of the parliamentary system that exists. It is very hard, practically impossible, for me to put it in mind. I know, with our people, it is really hard to understand. It is not even considered, in fact, that power comes from God to the Crown, to the Parliament, through the Department of Indian Affairs and finally to us. It does not fit, because in the re-emergence—if we look back on
our traditions, every individual has a direct association with God; sovereignty comes that way and from there it is the people who evolve and bring out and extend authority else- where. In the parliamentary system of Canada, it does not work that way, it works another way. It works in a way where people put an X, and their sovereignty has never ever reached them, it has been given away, somehow. That is really hard to comprehend.
That is why we say there has to be a developmental process, we have to have that room to build and grow in, because it is going to be avery difficult time. We have been trying educate parliamentarians and non-Indian people in understanding that kind of concept and the evolution of that. I know, as a band government, I have been working on Indian government for the past 10 Years, trying to bring it into being. But I am running into conflict all the time with the department because of the policies and programs. And the minority of our people who understand the Indian Act and things like that are always infringing upon . . . and bringing into existence these policies, regulations, the Indian Act and all these things—which 90%, I would say 90% plus, of the Indian people across Canada do not even understand and do not care to understand. It is only the leaders, it is only the chiefs, the councils, the administrators who understand and know about the Indian Act. Nobody else knows about it, but it is always inadvertently coming in and slapping people and they do not even understand why. So, what you have to consider is that there have to be other means, and those other means have to allow for growth to occur. There are going to be no pat answers, as I see it, such as the Indian government bill or the remaining Indian Act.
The Chairman: Thank you, Bob.
Roberta Jamieson is the next questioner.
Ms Jamieson: Thank you, Mr. Chairman, First of all, I would like to say how much I appreciated the presentation made here and, in particular, I would like to commend Chief Etienne for taking what I regard as being a very courageous step in coming before this committee with the information that he has presented. I think he has documented for us a tale of corruption, manipulation, by the Department of Indian Affairs, which is both shocking and, to me, disgusting.
I would like to add to my colleague’s request for informa- tion. I am not sure how his motion reads, but there are some additional pieces of information that I think it is important for this committee to review first of all, a copy of the preliminary and final audit I think we ought to secure. Also, from the Department of Indian Affairs, I would like to see data on the Bonaparte situation, specifically its response to the request from this band for remedial funds and its plans, as a depart- mental office, for action to relieve the current band council of deficits and unpaid bills, which were incurred by the previous council and, it is alleged, in complicity with the department.
I would like us also to see the departmental current B.C. operational plan, in whatever form it currently exists. Then, as I understand this might have a direct bearing on this issue, I
would like see some information from the department on the Hat Creek resource study, including the funding data, reports, etc.
Finally, in recognition of the fact that the chief has taken such a step to come before this committee, and I do not think it was an easy one, I think this committee ought to indicate that it is going to keep a watching brief on this situation. I fear, as I think the chief does—and maybe he does not wish to speak to this at this stagemthat under the current circum- stance the Department of Indian Affairs may, in fact, take some retaliatory action against his band and not co-operate in the future. I think he ought to have every opportunity to begin in his term of office as chief with as full a co-operative effort as can be achieved. I call upon the Department of Indian Affairs to provide some evidence, in this instance, of what they espouse to be their support for Indian self-government—which, frankly, I have difficulty in understanding, because this situation demonstrates quite the opposite to me. It demon- strates a use of money—in this situation and in the Neskainlith situation—money and regulations to break any band moving towards what I would call genuine Indian government.
Chief, do you wish to comment on any of those statements?
Chief Etienne: Yes. Let me thank you very much for your confidence and support in the very vulnerable position in which we have been placed.
I guess something which has never come out in the discus- sions is that my band is very close to the mega-project of Hat Creek coal development. This project will have devastating effects on my people. Ijust want to point out that, because of the undertaking of the Hat Creek study that has been brought to my attention since I have been in office, it is one of great concern because it is quite likely, in my mind, that information that is in the contents of the study can very well be leaked to other departments and could undermine the position of my people, so that the project will proceed that much more quickly to implementation. It puts me ina position of great concern for the type of impacts that this project will have on my people.
Ms Jamieson: Chief Etienne, perhaps I could ask the chairman what is the proper way of dealing with seeking such information.
The Chairman: Well, this may be an appropriate point for me to make a couple of comments.
First of all, the committee has the authority to seek informa- tion and Mr. Oberle has presented me with a motion which I have tabled for consideration at a meeting to be held in Ottawa.
One of the things that has bothered me a little bit in the proceedings this morning was when one member raised the question with the witnesses as to whether there was misappro- priation of funds by an individual, and the Chair rather
uncomfortably let that question go. More recently the question was asked, and allegations were made by a member, about corruption in the department. I think that we are getting into some difficulty and I would say to hon. members to be very careful. This is not a star chamber; our reference from Parliament is pretty clear. Hon. members should be aware that there is a proper procedure in this country for making charges and they are not to be made before this committee and defended, nor alleged. There is a proper way to proceed with the making of charges and it is not in this forum.
Therefore, I would caution members to be very careful, for the remainder of this hearing, that we do not wander into an area which is improper for a parliamentary committee and belongs more properly with the RCMP and with the courts.
We came very close to that dangerous area. I let it go, but l think we should be cautious.
With respect to information which the department has and which is public information, we of course do have the authority, as a committee, to request papers, documents, etc. if in some way we can show it is helpful in our inquiry. Mr. Oberle’s motion, and I think Ms Jamieson, covers that request. If you find it to be inadequate when we meet in Ottawa next week, then you can so indicate, and if the committee agrees on motion that certain papers are required, then we will seek those papers.
I think the committee ought to proceed, now, rather more generally with the question of Indian self-government and not become too involved in specific matters in which charges, at some future time, may or may not be laid.
Mr. Oberle: Could I just raise a point of order or respond just briefly?
Mr. Chairman, I would be concerned if we signalled to the witnesses that will be appearing before us in the course of our hearings that we would be reluctant to hear allegations or assertions that they make. The witnesses clearly stated that they have taken this step out of sheer frustration, not being aware of any other recourse that they have to voice these concerns and these allegations to us.
Now, we can continue, and I am speaking for myself and Mr. Schellenberger, to carry on these investigations in a partisan manner, as we have on previous occasions when allegations like that were brought before us in a sort of secret manner, behind closed doors. It would concern me, Mr. Chairman, if you would preclude these kinds of discussions. I would prefer to have these kinds of witnesses appear in front of the whole committee. Now, you may not wish to hear them in a public forum, but certainly this committee, a Standing Committee of Parliament, should make itself available to have these kinds of frustrations aired, no matter how serious they may be, no matter what the nature of the allegations are.
The Chairman: Mr. Oberle, let me make it perfectly clear to you so that there will be no misunderstanding; witnesses are quite free to express frustrations that they experience in their day-to-day dealings with the Department of Indian Affairs, with the minister and with the government. Of course, that is what we are undertaking and there is no problem there at all. That is the point I believe you are making.
Where we do move in to a very dangerous area is where we begin to make charges, or hear charges, against individuals who belong to bands or who are public servants, to make charges when those people are unable to have counsel to defend them. This is not a court of law; this is a parliamentary inquiry. As long as I am in the Chair, I will not allow this committee to be turned into a court of law where some of us will sit in judgment. There is a proper way. There is in this country the due process of law, and that is the course that will be followed.
Mr. Oberle is quite correct in indicating that we should hear about frustrations and difficulties experienced by bands in their relationship with governments. My point is that specific allegations are not in order and I do not wish to entertain them any further this morning.
Ms Jamieson: In all fairness, Mr. Chairman, I think that I should make a comment on this as well.
I happen to agree with my colleague, Mr. Oberle, when he says this committee should encourage an as open as possible examination of the matters that are within the terms of reference of this committee. I appreciate your comments and I think, frankly, that you happen to agree, I think the question is the manner of language that is being used and I think if you think it is important, we ought to seek some legal guidance on that issue. But I do not think we should interpret what is happening here this morning so as to discourage anyone from coming before this committee to have a full examination of Indian self-government as it attempts to operate today; the inhibiting factors thereto, where the bands are moving and where the Indian governments are moving in the future. I think the points which have been raised this morning are extremely important, relevant, appropriate and I hope we will pursue it.
That having been said, I would like to get into some other areas of questioning.
The Chairman: Just a minute, Ms Jamieson. I would like to comment on that.
Nobody disagrees with what you have said. What you have just said and what Mr. Manly has said is perfectly correct. What I have said is quite different, I merely indicated to the committee that we were moving very close to a dangerous area; the way in which you have just replied, there is no argument against that, and I accept your comments. Of course we want witnesses to feel free to bring forward all of their concerns. Both you and Mr. Oberle have said that and that is the way we proceeded up until now. I just introduced a point of caution
and I want hon. members to keep that in mind as we proceed for the remainder of this morning.
Ms Jamieson: Thank you, Mr. Chairman. May I proceed to question?
The Chairman: Yes, please do.
Ms Jamieson: Thank you.
In your presentation, Chief Manuel, I note you are declaring first nations have aboriginal title and aboriginal rights, and that no legislation or constitutional pronouncement can alter this fact. Then at the same time, you observe that Indian governments must be part of the constitution of Canada and not merely a creature of legislation. That is something a number of witnesses have said to us.
Many people have difficulty with that concept. Many non- Indians have difficulty with that concept. They see, on the one hand, Indian people declaring a kind of sovereignty, and on’the onther hand, Indian people asking to be part of the constitution of Canada.
I wonder if you would comment on this? These are the things I have observed.
Some have chalked this apparent contradiction up to another example of Indian people not having sorted out where it is they want ot go or what it is they want to do. Others— Indian leaders, more particularly—will say, while the Canadian constitutional recognition is not necessary to legitimize Indian governments, it is necessary to ensure a respect by other forms of government for Indian government; and that respect has not heretofore been evident in Canada, in the views of many Indian leaders.
Would you comment on this point? I think it is important. This committee is hearing from some witnesses that we are inappropriate; the cart is before the horse. We-cannot move until constitutional entrenchment is there. I sense you are saying: Yes, move, because Indian government is moving with or wlithout these other things. I wonder if you would comment on that.
Chief Manuel: In terms of clarification—I guess it is partly in response to Mr. Manly’s question as well—our nations are a fact, our Indian governments are a fact, aboriginal title and the rights that flow from it are a fact, and they are going to continue to grow.
What I see this committee here for. . . Obviously, there is an impasse occurring between the Indian community and the government; and this committee is sitting to try to resolve that, not so much on our side but from the Canadian government side. We are going ahead, anyway. We are building our governments.
Our people are becoming more independent-minded, more aggressive, more intelligent and more sophisticated in moving in the direction of rebuilding or reconstructing our nations and governments. That is a fact. Whether the constitution says we are supposed to do that or we are not supposed to do that,
whether legislation says we are supposed to do that or we do not do that, that is going ahead.
I see this committee as really a watchdog, internally, to say: Okay, these things are evolving, and rightfully so—I believe that is what the committee is saying: Rightfully, they should— and that the first nations, the original peoples here, are re- emerging. We thought they might become assimilated.
I do not want to put words in the committee’s mouth, but that is my perception. That is the way I am looking at it from the outside: We thought they would be assimilated. First of all, they would die off. Then we thought maybe they would be assimilated. Now it is obvious they are not.
There is a conflict being created between the department— the major agency—and the Indian people, and the committee is trying to look for ways in which it can be resolved. It is looking for a new relationship. The relationship that has existed all this time was never acceptable; however, it was tolerated, and our people suffered the consequences. Now, across the country, I think more and more of our people are saying: We are not going to suffer the consequences; we are going ahead, and the initiatives are being taken.
So there are certain things the government has to do to clean up the mess it has created. Certain pieces of legislation have to be removed. Certain pieces of legislation need to be amended for this emergence of the first nations’ government, so that no conflict exists.
When we say we are giving advice to the committee, saying Indian government . . . If there is going to be that compatibility, legislation will have to be introduced so compatibility can exist. But it does not preclude that, because the legislation does not come into existance, we are going to stop anywhere.
That is the fundamental difference, I think, when we are dealing with the Department of Indian Affairs. It assumes it can somehow introduce legislation or it canrsomehow put us into a manipulative situation, trying to manipulate us into accepting the Indian Act as it is or the Indian government bill, getting us into an either/or situation. That is not acceptable, and I guess the committee has to struggle with what the other option is besides that. You have to acceptthe diversity that exists. Some people want that; some people want the Indian Act, and some people want something else.
The only way I can see its being brought forward reasonably is through some kind of ongoing mechanism that will for the continued understanding of where the legislation is in our way and then action being taken on the part of the government to remove it.
Ms Jamieson: Thank you. One of the things you are saying to this committee in that answer is that Indian government is moving. It is developing; and Canada, Parliament and the laws have to cope with that in some fashion.
Now, it seems to me this committee is part of finding out how Canada is going to cope with Indian government; not how
it is going to devolve Indian government, but how it is going to cope on the other side, accomodate it. The thing that troubles me is that this committee reports in September; end of committee. You are suggesting a ministry be set up to carry on some of this.
Now, my fear is this: What makes one minister different from another minister? He would still be part of the Cabinet. How would you have a check to see he was, in fact, being responsive; that he was, in fact, being accomodating? I know you are suggesting a limited time period. What about a review mechanism involving Indian people? Is that important to you?
Chief Manuel: As I understand it, under Section 91 (24), any kind of legislation can be introduced. Section 91(24) just says: Indians and lands reserved for Indians.
Now, if it were a legislative requirement that the appointed minister be required to report to the Assembly of First Nations, or in terms of the ones who want to opt into that direction, to directly report and take directions from those bands, then that is possible. I understand it is wide open. There can be all kinds of acts coming out of that one little section, and I think those safety mechanisims would have to be built in.
The difficulty I and a lot of Indian people have is in understanding the mechanism of government.
I think the process here is helping to clarify in our heads a little better just the kind of protections we would have to build in and the kind of legislation that would have to come into existence to create that new mechanism for our protection. Certainly, I think the committee has the responsibility to come out with the ideas, because the government system is the system of the committee, and it knows how government works and how legislation has to be formulated, and all that kind of stuff which we do not know.
Ms Jamieson: One final question, Mr. Chairman, just to explore that a little further, and that is this: Some witnesses have suggested that a joint committee or a joint commission be setup following this committee to oversee the implementation of its recommendations. I understand something similar was done with the committee on the handicapped. What do you think of that idea?
Chief Manuel: If it has the power, by some means, to introduce legislation where legislation is in the way, because I would see that the way this committee is going to be effective, to implement what it comes out with, is that it is going to have to remove a lot of legislation or amend a lot of legislation. As far as I know, the only people that can introduce legislation in the House are parliamentarians. The commission, I think, would be a good idea, but it has that limitation that it does not have that power, I do not believe, to introduce legislation in those areas that are in our way.
Ms Jamieson: Thank you very much.
The Chairman: Thank you, Ms Jamieson. The next ques- tioner is Stan Schellenberger, our vice-chairman.
Mr. Schellenberger: Every once in while as we travel the country we find a new idea, and we have been exploring your idea. ljust want to follow up on it a little bit.
We have the frustration, as well, when parties change and when governments change in not being able to change the people in the departments who are responsible to the ministers. l have a private member’s bill that is attempting to do that: to say that they should only be a part of the government as the. government exists—for a four-year period—and that they should be at the will of the government to that point. Your suggestion is that we create a new ministry, and in that sense we could eliminate some of the frustrations in the department. That is a novel suggestion.
What I would like to explore with you is in your brief you say that the Indian nations should be able to develop their own forms of government; that the national government should not impose something upon you, and from that you would be able to grow or create certain governments, which may be different in different regions of the country, and I think we are coming to recognize that some of the desires of Indian nations are different in differentiregions. It is very hard to put one form of legislation in place to deal with that difference, so it has to be flexible, and you have pointed that out in your brief.
I guess what I am wanting from you is, if we make suggestions, how best do you think we could accomplish those suggestions? By means of proposing a piece of legislation and then coming out again and saying: Does this meet your approval; do you have some suggestions, some amendments, and so forth? A paper of some sort which could be the report of this committee, and then have another study of that paper to see if, in fact, we have met with the desires of the proposal you suggest—the creation of a new ministry—and hope that the government may follow it, and put some pressures on them to do that? Do you see any way within those proposals that the suggestions you are making that Indian government grow on its own and then be accommodated by certain legislation can be done?
Chief Manuel: One of the reasons that you are running into problems in terms of the differences in different regions and areas is that the power rests with the people; the people decide the kind of direction that they are going to go. That is becoming a norm. It is emerging more and more that people are giving directions. So the consistency in terms of one piece of legislation is more difficult than it was previously. It did not mean that Indian government did not operate. It operated, and there is a whole series of traditions and customs and laws that we have to live by in our communities.
I think, looking at the concept of a ministry, there would have to be consultation with those who want to opt in that direction. I do not know if that is answering your question.
Mr. Schellenberger: One of the difficulties pointed out in the example is that there does not seem to be communication between Indian bands, district offices, regional offices and Ottawa. There are too many levels to go through, and often
problems that may result are not dealt with. The region, as you say, may be dealing differently with different bands. That is not the way it is supposed to operate, but those that are supposed to be watching that in Ottawa do not have the proper communication to deal with that.
If we were making some suggestions to allow self-government to begin, one of the difficulties that may result is that we may Just move the administration powers of certain programsfhealth, welfare, perhaps even economic development —into the hands of Indian governments. Can we do that by eliminating the district offices, the regional offices, and have some direct proposition whereby you could go directly to Ottawa rather than through all the levels? Is this why you are suggesting that a ministry be set up, so that you could move directly to that ministry?
Chief Manuel: I will give you an example of what would happen in my community. The association with the ministry, as far as I am concerned, would be right at the band level; it would not be through any other vehicle. The reason it would be at the band level is because, in our concept of Indian government, the highest power and authority is at the band level. Now, it cannot function through any other system—Indian organization or department, bureaucracy of any kind—it has to be a direct relationship with the band. Now what would happen, and we already have it in my community, we have a splitadministration, kind of, or a split system. There is the administration that deals with the Department of Indian Affairs, compiles and does all our financial records and everything else, and which continues to make sure that the essential services come into being.
Now, as I said, 90% of my people do not understand what the Indian Act is. They do not care about it, and they do not want to know about it; are not interested in it. They are interested in a process of evolution of our Indian government where we develop legislation and everything else ourselves, where we explore and become politically aware, and education and everything. Now that body of people is left out, and that is an entirely different body. Many of those people are here today from my particular community and from Gerald’s community to see how this works. Now, that body of people has no vehicle, because it does not want to relate to the DIA machine.
So I see the delivery of the Department of Indian Affairs services continuing and the resources provided to this other body to help it put in place the infrastructure and everything that is needed for an Indian government to evolve. At the same time, there would be communications between that ministry and that body to examine and look, not to come to us and say that we cannot do that because this legislation does not allow us to do that, but to come to us and say: Okay, if that is what you want to do, this is the legislation that is under way, and these are the kinds of amendments we will have to introduce to allow that to happen. So you really have two bodies.
Now, once the whole thing is in place, included in that would be a new fiscal relationship with the Government of Canada. Out of that, then, would evolve a complete transition,
not taking anything that exists in DIA over across into our new system. We would have an entirely new system, and all the DIA money and everything from that side go back, come back into Treasury Board; get rid of it; bring it back through that system and all the regulations that are holding it.
Mr. Schellenberger: I see what you mean now. What you are suggesting is that one ministry be set up to put in place the kinds of institutions that you desire, and when that is in place, it would replace the other ministry, which would continue offering the services and trust responsibility and everything that it is offering now, with, hopefully, some amendments to that. The other ministry would be put in place to develop the type of self-government and institutions that you want to put in place eventually to operate under. Is that correct?
Chief Manuel: Yes, that is correct.
You are running around trying to figure out what this should be; and what I am saying is that the only way it can come into being is for it to evolve. There is an oppression taking place by the Department of Indian Affairs, because it tries to umbrella us. It is not umbrella-ing us, but a growth is occurring, and a frustration is developing, in this other side that I am talking about that wants to grow but does not have the resources or anything to move on. I do not even know all the legislation that is in the way. I have some concepts, but within my band and all those bands that want to evolve an Indian government we do not have the resources and the place where there is somebody receptive who is going to deal with us on the basis of what we want and the form of government that we want. We cannot rely on the Minister of Indian Affairs, or the bureaucracy, or anything. This ministry would have to be something different, developmental in nature and not inhibited or restricted by any other legislation. It is to explore and look at everything that has to be removed to get out of the way. I think it would also, in that process, have to recognize aboriginal title.
Mr. Schellenberger: What you are not suggesting is that the Indian people set up a bureaucracy similar to what is there at this time to operate in delivery of services and the protection of culture, language, and the trust responsibility. You would put in place some institutions that you have not yet evolved, try them out through the new ministry, to do in fact the same thing as the department is doing now, with some adjustments, or some change, based on the aboriginal definitions.
Chief Manuel: Yes.
Let me give you an example. In our community, when I was referring earlier to the family council emerging, one of the realities that we face in our administration at the band level, and one of the problems that we are always groping with, is, is our administration assuming peoplc’s responsibility and just taking on the form and shape of the Department of Indian Affairs?
The family council concept came into being because the only people who can really adequately deal with social problems in a family are the family itself. Even though we may have a social worker or whatever in the office, that person who holds that position does not necessarily have a rapport with all the families. So what is evolving is a new system of dealing with social problems, so that every family has its own person—and it is common in families who are together—every family has somebody to go to for different things. If they have legal questions or whatever, they go to that certain kind of family person. They put trust in that person. If they have social problems, they go to somebody in the family who can deal with the problem or knows where to get help. In our family structure, because it is still a unit, there is somebody in that family you can always go to for the kind of help you need.
It would reduce the role—our administration will change in the end, because a great deal of the responsibility will rest within each family unit. That is what has to evolve. That kind of thing has to grow and develop. Why try to force us to be a nuclear family when we are not?
The Chairman: Thank you.
Ms Sandra Isaac: I will direct this question to Chief Manuel.
Would the general assembly be the body that would deal with matters of membership, for instance?
Chief Manuel: Yes.
Ms Isaac: Could you tell us how they deal with those: the eligibility, those people marrying off the reserve, or that type of situation?
Chief Manuel: I think we appeared before the previous committee on that question. In our assemblies, our law, we recognize Indians remain Indians and non-Indians remain non- Indians. We have been able to implement one side of that, in that we have maintained within our membership those people who have married non-Indians.
Ms Isaac: You mention the family council. Is that the second-highest order of government?
Chief Manuel: Yes.
Ms Isaac: I guess they would deal with matters of child welfare, for instance, as you were stating a while ago.
Chief Manuel: That is what we are evolving into, and it is one of the reasons that it is coming into existence. I should add that it is only coming into existence. Only a few of them have been appointed so far.
Ms Isaac: I see. Do they provide counselling, or that type of thing?
Chief Manuel: Let us look at the elected system; the council system. The Indian Act provides that you have one representa-
tive per hundred. It is an unworkable system in our commu- nity, because there are always people who get left out. Really what we end up doing is, in a lot of situations, setting up an élite, where a good number of families who do not happen to have a counsellor elected are left out and become alienated in the community. We have established a policy that we want to strengthen the family unit, and part of strengthening that family unit has to make sure that every family is represented on council and that all the decisions we have to make have to go through that family council so that every family is informed about what is going on.
Ms Isaac: Good system. So you never lose children in that system—children are never lost the way the situation is now. The number of children in care is very high throughout Canada. Therefore with your system I guess you do not lose that many children to the system.
Chief Manuel: We have got ourselves in a position where Human Resources are looking to come to our community to place children, I do not know of any cases of loss.
Ms Isaac: Thank you.
The Chairman: Thank you, Sandra.
The next questioner is Clem Chartier.
Mr. Clem Chartier: Thank you, Mr. Chairman.
I take it, Mr. Manuel, by your last comment, that the testimony you gave to the first subcommittee is still valid to you, or you still subscribe to it.
The brief that you presented on behalf of the union I thought was quite excellent. I was particularly interested in the comments you made under part 2, on general comments. I will not refer to it specifically, but you did mention that the first nations have aboriginal title and aboriginal rights to the territories of the first nations. You also mentioned that basically it is inalienable; it cannot ever be sold or given away. In that connection, people currently known as non-status Indians would still have that on that basis—that it is inalienable. Is that correct?
Let me put it this way. If that is correct, where would the non-status Indians fit within this whole concept of aboriginal title and Indian government?
Chief Manuel: Let me answer that one in this way. Our old people have told us that we are born with it. So we are born with our aboriginal title, and nobody can give it away. It is a birthright; it has been inherited down through the times, and nobody can give it away. Even if we wanted to, we could not.
Our grandfathers have had it all of the time and they retained it for us. Our parents were born and they retained it for us. We were born and now we have to retain it for future generations. There is no way to give it away. It is very hard to look at claims or titles or anything like that in terms of extinguishment, sale or whatever; it does not fit. Younger
people like me did not understand that for a long time. Now I am starting to understand more, and I think more and more young people are starting to understand it. That is why we are kind of caught in a situation where we cannot be talking about extinguishing or selling or anything like that. That is foreign; it does not fit in the teachings that I have had anyway.
Mr. Chartier: Since you last appeared there has been a report that was accepted by the Standing Committee on Indian Affairs and Northern Development, and it was subsequently tabled in the Commons. Part of the report included an area for further study, and that, since January, has been incorporated as part of the mandate of this sitting special committee. Under that there is a provision, under Section H, and I will just read it; it is number 7, and it says:
That a means for band control of membership criteria, process, decisions and appeals in accord with international covenants be instituted.
I know you agree that first nations should have control of their own membership. Do you agree that these controls should be under or in accord with international covenants?
Chief Manuel: I am sorry; I do not know the international covenants.
Mr. Chartier: Okay. You referred to one that was positive for a point that you were putting forward. Other Indian people across Canada are putting forth the right to self-determination based on international covenants. Basically, my question is: If international covenants are good for one aspect of Indian aspirations, should they not apply to all aspects of Indian life or, say, to the rights of Indian peoples to gain continued recognition and membership within their own nations? Basically, should a non-status Indian be discriminated against and not allowed membership in his or her nation?
Chief Manuel: The decision in terms of membership, as far as our position is, is that it belongs right at the community level, and whatever decision that community makes is their business because that is their right to self-determination. I know what we do in our band, but I have no say in any other band in that.
Mr. Chartier: So whether it would be in accordance with accepted principles of mankind generally would not make any difference. The band level could discriminate, then, in that fashion and not be subject to international censure.
Chief Manuel: I do not want to be put in a position of dictating to any band what they should have. The decision, I think, is up to the band level.
Mr. Chartier: On another note, that same area of study provides for looking at a formula and process which would provide to Indian communities land and resources for people who may be reinstated. In your case, what additional resources may be necessary to accommodate reinstatement if in fact Parliament chooses to go in that direction?
Chief Manuel: That is another area that I think could be worked out with the ministry I was referring to because I think that what needs to be done is an examination of that whole question of lands and resources that would provide for the self- sufficiency of each community and each band. We do not have the resources. I know that what we want to do is to study the means and ways in which our band can become totally self- sufficient, and I think many bands want to do that but there are no resources for that. There are resources for economic development in the sense of immediate kinds of projects; but in terms of an overall assessment of the resources within our traditional territories, an overall assessment of the lands within our traditional territories and the securing of that there are no resources to do that. So you cannot really answer that question because it would seem that in most bands in British Columbia the reserve lands that exist are inadequate to meet the needs of the people who are there even, who are in the membership. So in part of that new ministry part of the responsibility would be to do that assessment.
Mr. Chartier: It would be safe, then, to state that there is an overall need to look at additional lands and resources generally and that the issue of reinstatement would be another criterion that would be looked at during that process of evaluation.
The Chairman: Thanks, Mr. Chartier.
Are there further questions from members of the committee? No further questions? If not, then, Chief Manuel, thank you very much for your submission, to you and the other members of your delegation, and for responding to the questions of the members. You have certainly brought some new insights and some new ideas to us, and we appreciate that very much. Thank you for appearing.
Chief Manuel: Could I ask one question?
The Chairman: Yes, please.
Chief Manuel: I would just like to ask what is going to happen with the motion in terms of my colleagues’ band, Chief Etienne. Is there a motion coming forward to the committee to . . .
Mr. Oberle: Good question.
The Chairman: Mr. Oberle has requested that a motion be discussed and a request for certain documents be put forward, and that will be dealt with at our next regular meeting on Wednesday at 3.30 pm. in Ottawa. It is an open meeting, a public meeting. Any further questions?
Chief Manuel: So you are entertaining the motion on this coming Wednesday in Ottawa in the committee. Is that correct?
The Chairman: That is just what I said, Chief Manuel, but I have tabled Mr. Oberle’s motion to request certain documents from the department. That motion will be dealt with on Wednesday next at 3.30 p.m. at a public meeting.
Chief Manuel: Very good.
In conclusion I would just like to thank the committee for hearing our presentation. I can assure you that we will be working to flesh out the ideas more from the exchange that has taken place here. I will be appearing before the committee in Kamloops on behalf of our band and will have more on this. Thank you very much.
The Chairman: Thank you, Chief Manuel. We look forward to seeing you again in Kamloops, which is our second visit to British Columbia. The dates are yet to be determined. Any further comments? None? Thank you very much.
We will call the next witnesses.
Mr. Oberle: I wonder if I could beg your indulgence, Mr. Chairman, before you call the next witnesses. As you know, the Indian Homemaker’s Society had hoped to appear before the committee in the course of our trip through British Columbia now. The band manager of the Stony Creek Band in northern British Columbia, Mrs. Helen Jones, is in the audience. She had assumed that the homemakers would be appearing before the committee and has now learned that that is not the case. She has travelled quite a distance to be here, and she has a brief which I perused with her and which I think is very germane to our discussions, and I would ask your indulgence to have this brief tabled here now. She knows full well that it would just simply not be possible for her to appear, but the documentation is crucial to our deliberations, and I would like to table the brief on her behalf.
The Chairman: Thank you very much, Mr. Oberle. Yes, there were plans to hear the homemakers on our second visit to British Columbia, and that is still an open invitation to them, However, you have requested that this document be tabled. I would just seek the concurrence of the committee. Is it agreed?
Some hon. Members: Agreed.
The Chairman: Our next witnesses; we have a brief from the Musqueam Band, and representing the Musqueam Band we have Chief Ernie Campbell. In a few moments I will ask Chief Ernie Campbell to read the brief. In the meantime, I would allow a short break so there can be a photo session of about three or four minutes. Members will please remain at the table so that pictures may be taken
The Chairman: Chief Campbell, on behalf of the Special Committee on Indian Self-Government, let me welcome you. We have, of course, heard a great deal about the Musqueam band and we have been looking forward to hearing from you and receiving your presentation.
We would appreciate it if at this time you would introduce to us the members of your delegation and then proceed with the reading of the submission, to be followed by some discussion with the members of the committee.
Chief Ernie Campbell (Musqueam Band): Thank you, Mr. Chairman. First of all, I would like to introduce the members of the Musqueam delegation: Rose Point, councillor for the Musqueam Band; Jim Reynolds, one of our lawyers; George Guerin, councillor for the Musqueam Band; Marvin Storrow, a lawyer from Davis and Company; and Andrew Charles, at band member.
On behalf of the Musqueam Indian band, I would like to express our gratitude to the committee for inviting us to appear before it. The terms of reference for the committee cover a number of matters. We would like to restrict our comments to three matters in particular and allow the spokesman for the alliance group of bands, of which Musqueam is a member, to comment on our behalf on some of the other issues at a later hearing.
The three issues on which we would like to comment with a view to changes in the law are as follows:
(a) The powers of the Minister of Indian Affairs and Northern Development in relation to reserve lands; that is, the trust responsibility of the government. We believe that our band is in a special position to comment on this issue because of its experience in suing the government for breach of trust, an action which has reached the Federal Court of Appeal and for which leave to appeal has been sought from the Supreme Court of Canada.
(b) The legal status of band governments.
(c) The legislative powers of bands and their relationship to the powers of other jurisdictions.
The Musqueam reserve in located in the City of Vancouver, and the band has developed large residential subdivisions. There are about 500 band members. Because of its location in one of Canada’s largest cities, the band has been involved in negotiations with the City of Vancouver with regard to municipal service, and with other governmental and commercial bodies.
Our presentation largely reflects that experience. Based upon that experience, we believe that changes to the Indian Act are urgently needed to ensure good government and development of lands reserved for Indians, which are, of course, the responsibility of the federal Parliament, to which you will report.
We have asked our lawyers, Marvin Storrow and Jim Reynolds of Davis & Company, to make the presentation on our behalf. At the end of their presentation, I and other members of council present will be pleased to answer any questions you may have.
The Chairman: Mr. Storrow.
Mr. Marvin Storrow (Counsel for Musqueam Band): Mr. Chairman, may I thank you, as did Chief Campbell, for the opportunity to address you and the members of your committee today.
The case that I am going to discuss with you is one that is presently before the courts in the sense that leave to appeal to the Supreme Court of Canada will be sought next Monday on behalf of the band. With that in mind, I think you will understand that I cannot properly be critical of the decision that we are appealing from, but I think it is reasonable for me to set out for you the facts of the case and the legal principles that can be seen from the decision of the Federal Court of Appeal.
The facts are essentially not in dispute in the case. They commence about 1955, when an organization in Vancouver called the Shaughnessy Heights Golf Club, which at the time was located around 33rd and Granville in Vancouver and, if I may say so, was the most prominent golf club, probably, in western Canada, decided to leave its location in central Shaughnessy in Vancouver and look for another piece of land to use as a golf club. At the same time the Department of Indian Affairs personnel realized the Musqueam people wanted to lease some of their land. The two then got together—that is to say the government officials and the Shaughnessy Heights Golf Club—and they discussed the terms of a lease over the Musqueam Band.
The discussions between those parties took place for about a year and a half, and during most of that time the band was not involved with the discussions. The band was involved from time to time with the government officials, but rarely with the golf club officials. The evidence discloses that the band asked the government officials to use their own lawyers and own appraisers, and this request was denied. The government essentially did everything towards the fulfilment of the ultimate lease.
The land in question here is land which would be the equivalent to, or better than, land in Rockcliffe Park in Ottawa. It is right on the water. It is attached to the University of British Columbia, and it is beside one of the most prominent residential areas in Vancouver. It is the southwest Marine Drive area.
At the same time as the Shaughnessy Heights Golf Club was interested in this land, several other persons were also interested in it. They would approach the government and say effectively to the government, look, we would like to lease some of this land from you. Firm offers, or relatively firm offers, were made of fairly large sums of money, and none of these offers were communicated by the government to the band. The band was kept in the dark about these other offers. As far as the band knew, the only person interested was the Shaughnessy Heights Golf Club. The land was not advertised
as being available and it was not put out to tenders as being available land.
The band at one point in time said, let us have an appraisal done of the land. The government said, fine, we will get an appraisal for you; you pay for it, and we will have another government official do the appraisal. The appraisal was then done in December of 1956 by a member of the Department of Veterans’ Lands at the time. He reckoned that the land was worth $5,500 an acre and that it should yield 6% on that per acre value. Now, 6% was not bad in 1956, but that amount would yield the band $53,000 a year at 6%; the total value of the land, 162 acres, would be $891,000. The band should have got $53,000, according to that appraisal.
The band was kept in the dark about the appraisal. The appraisal was either given to or discussed with the Shau- ghnessy Heights Golf Club people. They said it was too much, they could not afford $53,000. The government official then went back to the appraiser and said, reduce your appraisal. The appraiser then reduced the appraisal and indicated that $25,000 a year was the correct amount; 3% yield.
These are undisputed facts; undisputed; it is all in the documents. The appraiser was called as a witness at the trial, so there is nothing mysterious about that.
So he came back with a new appraisal, and the government then did not show that to the band, but they said to the band, look, our appraiser says that a fair and just and equitable return on your land is $25,000, or 3%. Of course, the other people who were interested in the land were prepared to pay about $100,000 a year for it.
At the very date, the same month, that this appraisal was done, a huge undertaking was done at the University of British Columbia called the Turnour report, which report was set about to determine the worth of the land at the University of British Columbia for purposes of long—term leases—the same as the Musqueam land. The appraisal there indicated that the land was worth $13,000 an acre at the University of British Columbia. That land is probably worth less than the Musqueam land, but that report said $13,000, as distinct from the government’s $5,500, and it said that a fair yield would be 6%.
The Tumour report was known to the Department of Indian Affairs, because the report has a statement in it, “Collaborated in by the Department of Indian Affairs”. So the government officials… and there were only three at the time—knew very well what was going on at the university, apparently—and the same month as their own appraisal was done.
Well, be that as it may, we get down to around September of 1957. There is a meeting and the government brings the golf club directors into the picture with the band and $29,000 is finally agreed upon as a just rent for the first period of the lease. At the meeting when that happened, the government official told the band members, or at least one of them present—that is, one of the council men—that if the land were not surrendered or if they did not agree to this rent, the government would lease the land anyway to the golf club. Of course that could not be done under the Indian Act, but the Indians did not know that.
So $29,000 then becomes the rent. There is then a surrender meeting on October 6, 1957, at which time those members of the band who were eligible to vote and who could show up at the meeting were present. The government official there takes control of the meeting, along with a second person. Mr. Grant is the second person’s name. The details of the lease are then discussed in the presence of the band, who are going to vote to surrender the land.
The lease was to be the following. It was to be $29,000 a year. The band was to keep the improvements made to the land when the golf club left the land. The first term of the lease was to be either five or ten years, and all other terms were to be the same. After each term, the band could renegoti- ate the rent on an open basis, without restriction.
The band then signed the surrenderwand let me show you a copy of the surrender. It is the third-last page of the red book. This surrender document, which is attachment A to the red book, was signed by three members of the band, the Chief being Chief Ed Sparrow. You can see his name on the second page of it. It is witnessed by William Grant, a government official who was a witness at the trial.
This group of persons who signed this lease was headed by Chief Ed Sparrow, who had a Grade 4 education and whose first language was not English. He spoke Indian, primarily.
I want to introduce you to the first paragraph of the surrender, at page 2. There are about six or seven words there that are probably the key to this whole case, That paragraph says:
To have and to hold the same until her said Majesty, the Queen, by her heirs and successors, for ever in trust to lease.
What has happened here with this document is that the Musqueam Band, notwithstanding a year and a half of negotiations, have signed a document which surrenders its 162 acres to Her Majesty the Queen forever; but not just forever: forever in trust. The only other restriction is that it is to lease. So the lease was to be for 75 years. That was the discussion, and everyone understood that: the government, the golf club, the band, and so on. They signed a document, however, that says the land is surrendered forever. Now, the Indian band in question here first saw this surrender document, except for the day they signed it, in about 1970. The lease was signed in
1958, September 22, and they first got a copy of that in March 17, 1970, They demanded a copy of it many times and they were refused copies of it. I have told you the terms that they voted on. Now, let us just see what the lease turned out to be here.
The lease is for 75 years all right, but the first term was 15 years, not 5 or 10. The maximum increase in the rent after the first 15-year period has a restriction to allow it to be increased by 15% only for the second 15-year period. So you can see that for the first 30 years the rent goes up an average of one half of 1% per year. Inflation between 1954 and 1958 was running at 100% for a four-year period in Vancouver in real estate, and that was proved at the trial by the government. So it was not a question of this inflationary phenomenon being new; it was known in 1956. But there it is, a half a per cent a year is the increase.
For the first 30 years of the lease, which expires on the January 1, 1988, the band will receive about $891,000 in rent. At the trial, all experts, the three called by the government and the one called by us, said that in 1958 the rent should be about 31.4 or $1.5 million per year. That is undisputed. They are getting $33,000 a year. All of the experts called said that the rent in 1957 should be about $100,000 a year; they got $29,000.
So if we are talking about breaches of trust, and if compe- tence is a quality of a breach of trust or incompetence, it seems as though the advice given was not the best available. But anyway, those are the facts.
One of the other conditions is that after the first 30 years of the lease the rent is to be re-negotiated on the basis that the land is uncleared, unimproved, and can be only used as a golf club. That is a severe restriction, This is residential land we are talking about. These people could have high-rises, apartment complexes, shopping centres, anything they wanted on this land, but they are restricted to the use; and of course the value is diminished from a lease point of view.
In addition, although the band was promised the improvements at the end of the lease with the golf club, the lease says that the golf club can remove the improvements. There are about 11,000 Indian leases in Canada, we are told, and not one other of those leases contain these sorts of provisions, so we are informed by the government. I do not know of any other lease, frankly, of this sort, particularly where the tenant can remove fixtures from the land. That is a concept generally speaking unknown to the English common law system, but this lease has that provision.
Now, we went to court in this case in 1979. The action was started in 1975. Chief Guerin of the Musqueam Indian Band for four years tried to settle it with the government, from 1970 to 1975. The government would not settle; they said, sue us. They sued in 1975. The case came to court in 1979, and after a
31-day trial, Mr. Justice Collier of the Federal Court trial division found that there was indeed a breach of trust here and that the Government of Canada was guilty of a principle called equitable fraud, which means that the government did an unconscionable thing to the band. That is the definition of equitable fraud. He awarded these people $10 million.
That award of money did not include prejudgment interest, so the $10 million is measured from 1958. And if you are talking about amendments to legislation, you may wish to consider, I believe it is, Section 35 of the Federal Court Act which says that you cannot receive prejudgment interest against Her Majesty, except on the basis of contract or statute. Now, if Her Majesty sued the Indians here and got the same judgment, they would be able to get interest against the Indians; but, of course, what is good for the goose is not necessarily good for the gander, and these people are out of pocket several million dollars as a result of that principle of law, if it holds up. But the statute clearly says that that is the situation. Post-judgment interest is available at 5%, Well, of course, at the time of this event, prime bank rate interest was about 22%, which means that the band was losing about $4,500 a day interest on $10 million, if that is the correct sum.
At the trial of the matter, the government raised probably every defence known to the common law system. It raised lachcs: you sued too late; the statute of limitations: even if you did sue late, you could not sue at all because the statute bars you; acquiesence: you agreed to the things we did to you. It said that there was in existence here a so-called political trust: the relationship between natives and the government is of a political nature, not a legal nature, and therefore cannot be enforced in the court system. That is the first case of this century that the Government of Canada has raised that principle of law, at least that we know of. It has been raised a fevv times in England, but never in Canada, and it is not a principle of law known to other countries, particularly the United States. They raised that defence; they did not plead it.
Mr. Justice Collier stated that since they did not plead it, they could not argue it unless they amended their pleadings, and the only way they could amend was to allow us to cross- examine the Minister of Indian Affairs and the Minister of Justice. These people were not produced, and so publicly the Minister of Justice, with the assistance of the Minister of the Environment at the time, abandoned the defence of political trust. The date of that abandonment was seven days after the end of the trial, which date was November 21, 1979.
After the judgment came out, the government appealed the decision to the Federal Court of Appeal and resurrected political trust. I do not mean this offensively, but in the meantime of course, governments changed; the government that was not the government of the day when these events occurred was now back in power and raised political trust again. At the court of appeal level, many of these defences were raised—all of them, in fact, were raised—and the Federal Court of Appeal said three things, and I think each of them is quite’ important to you when you are contemplating the possibility of legislative amendments here.
The first thing that the government said was that if you are going to have a trust, you have to have subject-matter to put into the trust. . . land, money, people, or whatever it is—you have to have subject-matter, and Indians, therefore, living on reserves cannot be the subject-matter of a trust because they have nothing to put into the trust, they have no interest in their lands. They are there through the grace of Her Majesty and, therefore, have absolutely no interest in these lands that they have occupied for many centuries in some cases. The court of appeal rejected that argument and said that native people do have an interest in their lands which could form the subject- matter of a trust.
The government then said, all right, the only thing that counts here is the surrender document, and we have gone over that. That is the document that describes the nature of the trust. Well, of course, I have shown you that if that is,the case then one and a half years of discussion and a surrender meeting, which describes the lease in detail, do not matter, all that matters is the document that was signed by these native people on October 6, 1957, and that surrenders their land forever in trust, So when this golf club leaves, the government still has the land. They can put the city dump there or do anything they want with it. The Indians have no right to argue about it because they signed this piece of paper. The Federal Court of Appeal agreed with the government and said: Yes, that is a principle of law. There is no merging of the oral representations into the written document, and so they are stuck now with this situation where this land is the government’s forever.
The second principle is the political trust principle, and that principle was raised again at the Federal Court of Appeal level, notwithstanding that it was publicly abandoned by the Minister of Justice a year before that, and the court of appeal agreed that political trust applies to native people in Canada under Section 18 of the Indian Act; that there is an absolute right in the Government of Canada to deal with surrendered Indian lands. So if the Indians were sold a bill of goods prior to the surrendering of the land, if the native people are told that there is going to be a golf club there and the city dump shows up, that is their problem if they did not sign a proper surrender.
Their remedy, I suppose is not to vote for the government in power. Naturally, to native people that remedy is useless because, of course, they do not control who runs this country;
in fact, in the years in dispute here Indians could not vote. So that remedy at the time of the breach in trust was not even open to them, assuming it is a useful remedy. There you have the situation bringing you right up to date.
The case will be heard before the Supreme Court of Canada on Monday next on a “leave application” basis only. Naturally we will ‘try’ to persuade the Supreme Court of Canada that these principles should not form part of the law of Canada. Frankly, if they do form part of the law of Canada, then I extend every good wish to the native people of Canada, because they are bound by the Indian Act; yet, when things happen pursuant to the Indian Act having to do with reserve lands particularly, they have absolutely no reasonable recourse to anyone.
I think this may have some relevance to Mr. Chairman’s remarks earlier when he, I think, criticized some members of this committee for perhaps indulging in suggestions of wrongdoing by certain persons. He indicated that the correct forum to remedy those wrongs was the court system. Now he was not entirely wrong when he said that, but he was not entirely right either because, of course, this case demonstrates that the court system is not available in all cases, I think that is about all I can usefully add about this fairly lengthy case. Mr. Reynolds, I think, may have something to say… oh, Chief Campbell, you go ahead then.
Chief Campbell: Thank you, Mr. Chairman. I will read from our presentation. The summary and conclusions relating to the powers of the Minister of Indian Affairs and Northern Development in relation to reserve lands: In view of its experience with regard to the government’s management of its reserve lands, the band does not have confidence in the ability of the Department of Indian Affairs properly to manage its lands on its behalf. The band also regrets the decision of the Federal Court of Appeal that the trust responsibility of the government cannot be enforced in the courts. The band intends to seek leave from the Supreme Court of Canada to appeal that decision. However, it also makes the following recommendations for legislative changes:
a) It should be made clear that the trust responsibility of the government is one which can be enforced in the courts and that there is no requirement that all the terms of the surrender must be in writing;
b) Any band which wishes to do so should have power to elect that legal title to reserve lands; it should be vested in the band rather than with the government in trust. The transfer of title should not affect existing Indian Act protections such as inalienability and freedom from property taxes. Transfer of title should be initially a provisional arrangement for, say, 10, years. At the end of this initial period, the band should be free to decide if it wishes to continue its title-holding in perpetuity, or to revert to earlier department jurisdiction. The transfer of title should be without prejudice to the rights of band members as aboriginal citizens, and should not result in any enfranchise- ment or loss of Indian status.
I will turn this over to Jim Reynolds now..
Mr. Jim Reynolds (Counsel for Musqueam Band): Mr. Chairman, as Chief Campbell mentioned in his introduction, I would like to speak on two topics. These are: the legal status of band governments, and the legislative powers of bands and their relationship to the powers of other jurisdictions. You should have in your presentation a copy of a paper I prepared which sets out in some detail what I believe the legal position to be on those two topics. so I do not intend to go through that in any detail. What I would like to do is just briefly summarize what is contained in this report. On that first of issue of the legal status of band governments, I suppose the legal position could be summarized by saying: a) it is unclear; and b) band governments may have no legal status anyway. I have in my paper given references to the case law on that.
On the second topic—the legislative powers of bands and their relationship to the powers of other jurisdictions—there are really three areas which cause concern here. The first is the power of the band council to exercise powers including taxing powers over surrendered lands. Second is the power of the band council to pass bylaws in the face of municipal, provincial and federal laws. The third is the antiquated nature of the powers.
I wonder if I could ask you to turn to page 9 of the paper which gives a summary and recommendation. I think this summary and recommendation is fully supported both by the paper and by my own personal experience as hand solicitor for the last year or so. As Chief Campbell mentioned in his introduction, the band is located in the City of Vancouver. It has prime residential land. Of necessity it has had to negotiate with the city to obtain municipal services. It has also had to negotiate with a variety of other governmental and commercial bodies. I think the conclusions and recommendations set out here are firmly based, not only in the law, but also in that practical experience. So I would, with your permission, just like to summarize this paper from pages 9 and 10.
The present position relating to the legal status of band governments and their legislative powers is confused and inadequate. This confusion and inadequacy has affected the ability of the Musqueam Indian band to develop its major assets, land and fish, to their fullest potential. To remedy this situation, the following recommendations are made for changes to the Indian Act.
The first recommendation is that there be created a legal entity whereby band councils are empowered to carry on the necessary business of band government and management of lands reserved for the band, including having the authority to enter into agreements and having the same tax-exempt status and other privileges as other local government units. I would add that bands simply do not have those privileges. They do not even have the clear legal ability to enter into agreements.
The second recommendation is that the jurisdiction of band councils should be clarified so that it clearly extends to surrendered lands and to non-Indian persons occupying lands within the jurisdiction of the band council. I would say here that in 1951, the Indian Act was amended so that the definition of ‘reserve” no longer specifically excluded surrendered lands. Prior to 1951, the definition of “reserve” specifically excluded surrendered lands. In 195l, that definition was changed and the reserve . no longer specifically excluded surrenderedllands. You might take it from that then that Parliament intended that reserves include surrendered lands; otherwise Parliament was wasting its time in changing the definition. However, in a recent decision of the Federal Court of Appeal, Mr. Justice Le Dain decided that surrendered lands are not part of the reserve.
If you lookat the by-law making sections of the Indian Act, and,’ in particular, Section 81 which gives general bylaw- making powers and Section 83 which gives the power to tax, you will see that there is a reference there to the reserve. The question then is: What is the reserve? Does it include surrendered lands in particular? In our view, that confusion ought to be clarified quite clearly in the Indian Act, and the apparent intention of Parliament in 1951 should be made clear beyond a shadow of a doubt that surrendered lands are part of the reserve. They are clearly lands reserved for Indians within the Constitution Act, 1867. It is clearly a federal responsibility. Our recommendation is that the federal Parliament carry out that responsibility through band councils.
The third recommendation really, I guess, is a repeat of what I have just said—that is, that the band councils should have clear power to tax all residents occupying lands within their jurisdiction including surrendered lands.
The next recommendation, which is that the present confusion as to the application of provincial laws to the reserve including surrendered lands, should be resolved in favour of band councils, and they should have power to adopt any provincial law if they so desire. The law currently is not too clear as to what extent provincial laws can in fact apply to the reserve. As a practical matter, I understand that the City of Vancouverpfor example, will often come down and see the band council before they purport to exercise any power on the reserve. That kind of confusion is in nobody’s interest. It should be clarified.
The Musqueam’s next recommendation is that the ability of band councils to tax lands reserved for the use of the band should be an exclusive power. However, if a particular band does not wish to provide services to residents on the reserve, they’ should be free to enter into agreements with either municipalities or private agencies, so that those parties would provide the services in return for a fee. The taxes should go to the band because it is their land.
The next recommendation: In addition to conflict between provincial law and band by-laws, there is also very present the
possibility of a conflict with federal laws. We have had a recent example in this province, of course, with the Fisheries Act. Attached to the paper, there are some pages from the recent report by Dr. Pearse, which dealt with Pacific fisheries. In that report, he highlights the impasse between provisions in the Fisheries Act and provisions in band by-laws dealing with fisheries.
We feel that that confusion between, say, the Fisheries Act and band by-laws dealing with fisheries ought to be resolved and should be resolved in favour of the band council, with a provision that unless the Governor in Council otherwise directs, if there is a conflict it is the band by-law that should prevail over other federal laws.
The next recommendation is that the by-law making powers should be revised, since they reflect the needs of an urban band, such as the Musqueam Band, and that they be set out in clear and unambiguous form and in sufficient detail for effective local government.
Section 81, which sets out the by-law making powers, goes back to at least 1880. It is over a century old. To a large extent, it has not really changed to reflect changing circumstances. Just to give one example, in a recent decision it was held by Mr. Justice Heald that under those by-law making powers band councillors have no power, expressed or implied, to hire employees. How can anyone run an efficient system of government if he has no power to employ people? Also, those powers really reflect the needs of a rural band, maybe a rural band of 100 years ago, I do not know, but they certainly do not reflect the needs of a band such as the Musqueam Band, which is located in a major city, in Vancouver. It has prime residential land that should be developed, it has prime land which could be developed, perhaps, for commercial purposes. It really must have the necessary zoning and building by-laws to enable that kind of development to take place. It is the absence of those powers that, to a large extent, has hindered development on that reserve.
Another recommendation we make is that consideration should be given to the preparation of model byalaws so that individual bands would have something to which they could refer. They certainly should not be bound to implement these model by-laws, but they should be there so that individual bands can make whatever changes they wish to make.
The existing penalties for violation of the by-laws are fairly mild, and I have set those out in the paper on page 8. Essentially, by-laws are enforced by way of a fine not exceeding $100 or imprisonment for a term not exceeding 30 days. In some cases, a much higher penalty may be justified and, if there is to be effective band legislation, there must be an effective way of enforcing that.
The final recommendation we make is along the same lines: that consideration should, perhaps, be given to a system of tribal courts, as apparently exists in the United States.
Those are really the points I want to make.
The Vice-Chairman: Thank you, Mr. Reynolds.
Chief Campbell, is that the presentation you wish to make before the committee?
Chief Campbell: That is one, we have a couple of other issues. Membership, I guess, is another issue we have here. I think you have copies of the resolution. Basically, I think what it states of the Musqueam position is that membership should be handled at band level. We should be able to have the power to say whom we want as our membership, not government officials or the Department of Indian Affairs. In any guidelines, we would like to control our own membership with no strings, or whatever, attached.
We have another issue that we would like to discuss or have on record as having been presented to this committee, Mr. Chairman. It is in regard to the foreshore land claims. I think you probably have that in your kit. It is a fairly lengthy document.
The Vice-Chairman: Would you like to give us a summary of that, or could we have it appended as read?
Chief Campbell: I would like to call on our lawyer, Jim Reynolds, to make a summary of that, please.
Mr. Reynolds: The foreshore brief is attached to my paper, at the end. It is this very long document.
Essentially, we consider it to be relevant because, in addition to theaboriginal claim that the band makes for the foreshore, there is also a question, in our view, as to whether, in fact, the reserve extends to and includes the foreshore. We have such basic legal problems here in defining the jurisdiction of the band that we really do not know where the boundaries of the band are. It could well be that the band already has by-law making powers over the foreshore because the foreshore is part of the reserve.
For us to answer that would take a great deal of legal research. But that is one of the types of questions that we have: What is the reserve? Does it include surrendered lands? Does it include the foreshore? Where does the reserve end? How can any local government body pass any kind of effective law if it does not know the jurisdiction it has, the physical jurisdiction? There is also a question, 1 think, under Section 81, as to whether the jurisdiction is, if you like, ethnic: whether it applies to the members of the Musqueam Band whether or not livingcn the reserve. Again, Section 81 is not clear. Some provisions in Section 81 refer to the reserve, others do not; some refer to Indian people, others do not.
The Vice-Chairman: Thank you very much.
If that is the presentation, would it be in order to have some questions? All right. Thank you very much for putting on record some very interesting cases. I could see, from the attention paid by members, that we were very concerned, particularly about the first issue that was raised.
Our first questioner will be Mr. Oberle.
Mr. Oberle: Thank you, Mr. Chairman.
Before l start my questioning, could I suggest a motion that all the documents—the foreshore land claim document, the document pertaining to membership—be appended to the record of our hearings, as well as the full text of the documents with regard to the land lease case.
The Vice-Chairman: Members have heard the motion. Are you agreed?
Motion agreed to.
The Vice-Chairman: They will be so appended.
Mr. Oberle: Thank you, Mr. Chairman.
I have followed with keen interest . . . I am sorry; it is almost humourous, because the facts that you have stated are so absolutely clear, You are saying that they are not in dispute before the courts; in a layman’s—l am not a lawyer—in a layman’s assessment of the situation, it makes a mockery of the whole system. If the facts are not in dispute, the Indian people have been cheated. Of course, it points out the lack of involvement of our court system in the whole question of the Indian Act, the Indian trust relationship with the government, and it points out the critical need to entrench certain principles and values that are associated with the concept of aboriginal title in the Constitution, to involve the courts in the interpretation of some of these important principles.
Tell me, Mr. Storrow, whom did you sue? Did you sue the minister or did you sue individuals who were involved in the negotiation of the . . . ?
Mr. Storrow: The suit was against Her Majesty the Queen in Right of Canada. That is, I think, the proper defendant when you are dealing with actions involving servants of the government acting on behalf of the government.
Mr. Oberle: From what you are telling us, it would not be very difficult—l want to be very careful here, although we have a more congenial chairman right now, not to use any offensive language—from what you said earlier, it would not be very difficult for you to prove fraudulent complicity by certain individuals in the negotiation of this thing. Somebody must have had his fingers in the till. Why did you not sue the individuals who were involved in the negotiation of this?
Mr. Storrow: My answer to that is: No, I am not still beating my wife.
I cannot answer that question. I do not know, really, whether there was complicity. The individuals involved primarily have long since passed away, in any event. You can sue the Government of Canada vicariously for the actions of her servants, you see, so that the Government of Canada is the best person to sue, because if you win you may be paid—not “must , may”.
Mr. Oberle: Right. Okay, that is a good reason. It is part of our committee’s terms of reference to come to grips with this whole question. It points out, crystal clearly, this is an
excellent ease to demonstrate the selectivity with which the various ministers over the years have exercised this trust responsibility.
You are saying Judge Collier asserts it is not a legal trust. If it were a political trust, it would be meaningless, because in today’s context, Indian people have no political power. At the time of the events, they did not have the right to vote in the first place; so they could not exercise any political power. So what it boils down to is, if we take that for granted, it is nothing more than a moral trust.
Mr. Storrow: I suppose you could call it a moral trust. I suppose we have to presume those wielding political power will wield it morally.
You see, one of the cases on which this decision in Canada was based is the decision of Tim & Waddell in England. That was a 1977 decision of Mr. Justice Megarry of the English High Court. In that case, he held that the relationship between England and some south sea islanders, relating back to incidents in 1928, was of a political nature, The Government of England, therefore, won the case. But following their winning of the case, they paid the money over to those they had wronged politically; so I suppose they saw a moral quality about their responsibilities as political trustees.
Mr. Oberle: So in your appeal to the Supreme Court, what are you claiming? Are you claiming the government recognize a moral responsibility to redress the obvious situation?
Mr. Storrow: I think you must work on the first premise that the government has a moral obligation to the citizen. But I think our argument has to be based on the fact there is not only a moral obligation but a legal one, because we are not going to an ecclesiastical court; we are going to a court of law.
If it is just a moral obligation, of course, they do not have much to say about that, except to express their personal moral views. We have to win the case on the basis of a legal obligation, I think.
Let us look at it this way. Let us assume, at the moment in time when the natives were signing this surrender document, the government officials said to them: Look, if you sign that, you cannot sue us if we have ripped you off. Do you think the would have signed it? I doubt it.
Now they are in the position, 25 or 30 years later, of having this principle raised against them for the first time, really, in the history of the country. They could not have predicted that at all, at the moment in time they signed the surrender. The chief could hardly speak English.
Mr. Oberle: In your examination and preparation of the background for this case, we have looked at different interpretations of the trust idea as it evolved from the British system. Are you clear in your mind how this trust should be refined, as it is outlined and entrenched in the Indian Act? In other words, is it a trustee and a beneficiary?
It was clear that, early, the officials of the department and the government considered Indian people to be incompetent and in need of guardianship. In other words, is the trust a guardian trust? What is your definition? What are you laying before the Supreme Court in . . .
Mr. Storrow: I do not have any hesitation in suggesting to you the only way this legislation can be properly and reasonably run is if Section 18 of the Indian Act, which is the one we are dealing with in this case, is considered by the government to have binding legal consequences on the government.
What native person could possibly trust a government official to lease his lands, to sell them, to accept a surrender from him, if having done that, he cannot be held accountable for his actions? How can you possibly run a democratic system of government on the basis that the person who has wronged you is going to be the person who judges whether or not he has wronged you? That is exactly the nature of a political trust.
I do not think the Government of Canada really wants that principle, frankly. I know the citizens of Canada do not. I think this case is, in a sense, a kind of conundrum that has happened, somehow or other, against the wishes of many in the government. It seems to me no one knows quite what to do with it; and so, of course, the courts are going to have to decide it.
That is nice as an academic exercise, but these persons here whom we represent are not wealthy people. To bring this case through the court system, as they have had to, is an extremely onerous thing for them to do, monetarily. They cannot really afford this case. There is no question about it. It is an important case not only to natives but to Canadians, because next week it might be Irish people who have a political trust imposed on them for the sale of potatoes. You cannot have a proper system of government in those circumstances at all. It is a backward step.
However, that is my opinion. I am sorry to have to express it so aggressively, but that is the way I feel about it.
Mr. Oberle: That is precisely what we want to hear. In fact, the minister is looking to this committee—he told us that—to advise him on what his trust is. He is confused, and he is certainly not very comfortable with it. Is the trust in perpetuity? What responsibility does he have to minors and their trust account?
It points back at the whole question of the paternalistic attitude that flowed from the trust. Indians were incompetent. They were considered almost to be handicapped, and therefore, had to have a guardian, who had to exercise a trust for them.
Obviously, you would not have addressed yourself to the question of the extent of the trust in terms of tangible assets, land or resources and such responsibilities the government has under social contracts; say, the supply of services, health care
and so on. Have you formed an opinion on that? Does the trust extend to that as well?
Mr. Storrow: I do not think it would be easy to argue that the principle involved in the case we are dealing with could extend to that. I cannot say it does, indeed; and that is a very complicated, difficult question. I think it may be that the government would argue that position and let the courts decide it.
My point is this: The government is not under any obligation to take these positions. They do not have to argue the statute of limitations, for example. I have shown you we did not get a copy of the lease for 12 years after it was signed; and still, we had to face the statute of limitations, which was a six-year period. So it ran out six years before we even knew we had a right to sue.
The government is not morally bound to raise those defences. Those are academic defences, and there are cases when they can be raised. There is no question about that. But I do not think there is a duty, in every case, to raise every defence known to the common law against every native band that brings the case to court.
Mr. Oberle: What this points out is something we have always reminded and criticized the governments for; that is, as long as everything goes right with respect to transactions like that or the exercise of trust responsibility, the government says it has acted in the best interests of the Indian people. But if something goes wrong, the trustee becomes the adversary, as is the case here; and you are fighting against your own parent. It is just absolutely incredible. That is a point that should be made to the Supreme Court judges. He is no longer trustee; he is now your adversary.
Mr. Storrow: The analogy that usually comes to my mind is this: It is like having the policeman who has arrested you judge whether or not you are guilty.
Mr. Oberle: Exactly.
Mr. Storrow: That is exactly the position we are in here, if there is a political trust.
Mr. Oberle: Yes. I have one final question.
I raised this question in the House when the government made the decision to appeal the case to the Supreme Court, and the question was raised whether or not the government would be inclined to assist with the legal fees. Can you tell me what has happened with regards to that? Is the band left to their own devices, or did you get some help with the legal fees?
Mr. Storrow: I think the problem there is that, although your intentions were good, I think your quote was too high. You said in the House the fees were between $250,000 and $1 million on May 13, last year; and of course, those are not the fees. We have had not had any help at all. In fact, the Federal Court of Appeal awarded all costs for all court hearings, both
the trial division and the Court of Appeal, against the Musqueam Band.
Mr. Oberle: So while I exaggerated the figure, what will the figure be by the time you have finished with this final appeal?
Mr. Storrow: I shall be seeking a position with the Department of Justice, I am afraid. I could not afford to practise law at this . . .
Mr. Oberle: No, I am not necessarily interested in your own fee.
Mr. Storrow: I am sorry.
Mr. Oberle: I know that is very reasonable; it must be. I mean all the costs that were. . .
Mr. Storrow: How much are they? I would estimate that the government has spent literally hundreds of thousands of dollars defending this case. But naturally that is hard to assess because they are dealing with people who are salaried people and the overhead costs and so on are hidden. The costs to these persons we represent, if they were charged the costs, and I do not want to get into that, would also be in the $200,000 to $300,000 category.
Mr. Oberle: Sol was not too far out.
Mr. Storrow: No, you were not too far out in your lower end. We have spent about six or seven years working on this case with four or five lawyers, not full time, of course, we have more than one file, but we have spent literally thousands of our hours, and most of it defending these esoteric defences, frankly, and preparing witnesses for cross examination, etc., the ordinary things you do in every case. But it is very, very costly for native persons to take on the Government of Canada because they spare no expense to defend these cases. I am not criticizing them necessarily, maybe that is their duty, But the result is a very, very high cost to the plaintiff.
Mr. Oberle: It is certainly going to be a landmark decision that will eventually be rendered. I wish to extend to you my very best wishes for success.
Mr. Storrow: Thank you.
The Vice-Chairman: Thank you, Mr. Oberle. Mr. Allmand.
Mr. Allmand: Thank you, Mr. Chairman. I want to tell the Musqueam Band that we have received other evidence before this committee, from Indian bands and Indian associations, expressing their extreme dissatisfaction with the administration of the trust, relationship in different parts of Canada, so you are not alone in this. But your case will be the leading case and is the most upfront case at the present time. Its determination will have, as you have said, very wide-ranging implications for the entire Indian Act.
Because so many Indian bands and associations have raised this subject of the trust relationship, as a special committee we
have asked for a special study on this, which we hope will lead to recommendations in our report. If the Supreme Court goes ahead with your appeal and rules in your favour, that will be tremendous, But if it does not, or maybe in any case, there may need to be clarification, as you point out in your brief, to the laws with respect to trust.
I note that you made two recommendations on a separate paper. One, is that whatever happens, that the trust relationship be enforceable in the courts, I have taken note of those. But I want you to know that this is the very important part of the committee’s work, the whole definition and enforcement of the trust relationship.
I wanted to ask you one question about it. Was your case that the Government of Canada had a trust responsibility based simply on the wording in the surrender document in the paragraph and words you refer to, where you say “to have and to hold the same unto her said Majesty the Queen, her heirs and successors, forever in trust”? I know you dispute the fact that it should have been forever. But the “in trust to lease”, was that the sole basis of your argument, that this was a trust relationship, or did you also allege and plead that there is a general trust relationship between the Minister for Indian Affairs, that he has a trust relationship with respect to Indians? Did you allege and plead that as well? If so, could you tell us what evidence you put forward as a basis for that trust relationship which would go beyond this document of surrender?
Mr. Storrow: The words in the surrender you have referred to, Mr. Allmand, we think assist us in the determination that the relationship was a trust relationship in the legal sense, because that is what the document says; it says “in trust”. It does not say “in political trust”. It says “in trust”. But under the Indian Act, at least as we read it, particularly Section 18, we feel the government of Canada has assumed unto itself a relationship between itself and native persons ofa trust ‘nature, and one that is enforceable in the courts because, you see, the government has control of the legislation. Our position is that if they want the act to be interpreted in a political way, they should say so. Put it in Section 18 that we the government hold surrendered lands in political trust for you the natives. That is perhaps an exaggerated way of expressing it, but that can be done. If that is the intention of Parliament, I say have them do it, amend the legislation.
We also went further and said that you can tell whether there is a trust relationship by the actions of the parties, the government officials. They came to the band and said, let us lease your land, we will do everything for you; we will organize the tenant. You cannot have your own appraisers and lawyers. Here are the terms of the lease; we will get you an appraisal. And by the way, the appraisal I refer to, done by the government, was first given to the band in 1978, 22 years after it was made, although the golf club people had it when the ink was still wet. So we say that the actions of the government officials were the actions of a trustee towards a beneficiary, and you
can have a . . . call it a common law trust relationship, if you like; it does not have to be connected to the Indian Act.
We think that under the Indian Act itself the intention of Parliament was to create a trust relationship enforceable in the courts, because how many things that you do in your daily life or that you see in the court system, or outside of the court system, are extra-judicial? How many actions of the citizens of this country, when they are wrongful actions, cannot be taken to the courts? Have you ever heard of another one? I have never heard of one. I have never heard of a trustee wronging a beneficiary and that case not being allowed in the door of a courtroom. If this case was between the Royal Trust Company and the CPR, it never would have got to court. It would have been settled, it is so clear on the facts.
But here, you see, these people . . . they are a special breed, I suppose. They are native people. They do not have the same rights as perhaps the CPR perhaps. As a matter of principle, as a question of political philosophy, do we want the country run that way? I do not think we do. I do not think you do. I do not think anybody in this room wants the country run that way, but that is the way it is being run vis-a-vis several hundred thousand native persons. If you want them to have confidence in the administration of the affairs of the Department of Indian Affairs, for goodness sake do not tell them that if they are ripped off they have to go to you to pay them back for ripping them off. That does not make any sense at all.
Mr. Allmand: Certainly for years and years there was a presumption that the minister held a trust responsibility with respect to Indian people and Indian land, and even the government spoke that way. You see it in documentation, in speeches and whatever, that there is a trust and was a trust relationship. Therefore, for the Department of Justice then to plead that it was not a legal relationship but rather a moral or political one comes as a bit of a surprise and rather an important policy decision, I think, that was never discussed in Parliament or, as far as I know, widely among Members of Parliament.
If I understand the judgment of the Federal Court of Appeal correctly, they rejected the contention that there was a legal, enforceable trust responsibility in the minister. Okay. But I do not see how they get around the surrender document where if says, ‘forever in trust’? I am asking you to explain the reasoning of the good judge.
By the way, I do not know about the witnesses, but in Parliament and in parliamentary committees we are privileged to discuss these things. If I walk outside and discuss them I might be sued.
I can see where in his judgment he got around the trust in the Indian Act, because it is implicit rather than explicit. But how in God’s name did he get around this document?
I am not asking you when you are going to stop beating your wife, am I?
Mr. Storrow: I guess you should ask God that question. I do not know.
He effectively said those words, in some cases, have not meant what they said. They do not mean in trust just because they say it.
Mr. Allmand: We will be pursuing this further. I would just like to ask the chief some questions on another point—and good luck in your appeal.
Chief, in the document that was read by Jim Reynolds, on pages 9 and 10 you have some very specific and important recommendations, starting with that the band should be made a legal entity to carry on business and administer lands and property, the jurisdiction of the band councils should be clarified, the power to tax residences and lands, clarification of conflict of federal and provincial laws, and so on. These are rather specific recommendations to amend the Indian Act, and what I want to be clear on, because I do not want to misunderstand you, is are you recommending that these amendments to the Indian Act and other legislation he proceeded with as quickly as possible, or would you rather that they be kept in abeyance until the constitutional questions are resolved?
I ask that question because some of the Indian associations and Indian bands that have appeared before us have said that although they want amendments to the Indian Act, they do not want them dealt with until it is entrenched in the Constitution, it is recognized in the Constitution that they have the right to govern their own affairs, their sovereignty is recognized; and they do not want us or the government tampering with the Indian Act in the interim period. They want first things first, and then to deal with things like this.
What is your recommendation to us on that matter?
Chief Campbell: As we all know, in these constitutional talks or whatever, I think if we get what we want embedded in the Constitution, it flows and looks after everything else. But in the meantime, we still have these recommendations. I think we have to work towards something in changing the Indian Act in the meantime. I believe the recommendations we put forward here—we hope they will be looked at immediately, or as soon as possible.
The Vice-Chairman: Thank you, Mr. Allmand.
Mr. Manly: Thank you, Mr. Chairman.
I would like to thank Chief Campbell for a very helpful presentation of a lot of very important material for this committee.
I have a few questions I would appreciate clarification on; one you just referred to but did not go into any detail on, the
relationship between urban bands and municipal governments. I am wondering if you have any suggestions on what mechanisms can be put in place to assure people in adjacent municipalities-and also to protect the Indian communities themselves from actions in adjacent municipalities with regard to zoning. What kind of mechanism can there be to ensure that there is some sort of compatibility between what takes place in the municipality and what in the adjacent Indian community?
Mr. Reynolds: Chief Campbell would like me to make a few comments on that question. Essentially the recommendation is the band councils should be supreme on the reserve, including surrounding lands within that definition of reserve, because it is clearly a federal responsibility. The band council is, if you like, the representative, in that area, of the federal government.
Having said that, however, I think the Musqueam Band recognizes that each band has its own aspirations, indeed its own limitations, when it comes to the provision of local government services. Maybe some bands do not want to provide any services at all. There are some that will provide some services. But the taxing power should be with the band; the decision whether to provide the services, in total or in part, should be with the band. The implementation, the provision of those services, should be a matter of negotiation between the band and the surrounding municipalities.
So far as representation is concerned, then, I am sure Indian people recognize that not only are they residents of the reserve, but they are also residents of a particular area. I know from my own experience—I suppose I cannot really go into detail— that they have been extremely concerned about how development on the reserve would affect the surrounding area.
I have just got permission to mention one particular example, which is that the band has a reserve in Ladner, an island reserve. They were approached about 18 months ago for permission to develop some kind of chemical plant there. Financially, that was a very inviting offer. The amount involved was fairly considerable. But the band was concerned about how that would affect the surrounding area, what the hazards would be for the neighbours, and they decided that it would be in the interest not just of the Musqueam Band but of all the residents of that area that that plant not be built.
I suggest that that is one example of the kind of responsibility which this particular band has shown, and I think it should be presumed that bands will continue to show that sense of responsibility.
Mr. Manly: So it is a matter of developing responsible, good relationships. I can see that that is a reasonable answer, providing you have that kind of growth of trust.
Do you have any suggestions about such items as rent controls? How should they apply to, for example, trailer parks on band properties?
Mr. Reynolds: Again, I think the band’s position on that is that the band council should be the supreme legislative authority, if you like, within the reserve, including surrendered lands; but again, they should have the option to adopt provincial laws.
If it is the desire of the band that there be a form of rentlcoiitrol, then they should have the option of adopting provincial law. But it should not be imposed on them.
Mr. Manly: In your submission you made reference to the Pearse commission recommendations, and some of those recommendations on the traditional Indian fishery were that a quota should be established with each band and the band itself would have the determination of what should be done with that quota, whether it would be used for local consumption or for barter or for whatever. Is the Musqueam Band basically in favour of that recommendation?
Chief Campbell: Yes, the Musqueam—we are in favour of some of the recommendations about controlling the stocks or having an involvement in that in the fisheries. We have not really gone into it ourselves at the band level, whether we are for or against the quota system you talk about. But we are in favour of certain aspects of the Pearse commission whereby we will be involved in the management of the fisheries and we will be able to get our quota, if there is some sort of quota system that they want to talk about. We feel that the natives or the Musqueam or anybody who has access to the fisheries could do for their own consumption or barter or whatever, yes.
Mr. Manly: You also mentioned membership and I noticed that you have a BCR where you informed the department that you wished to develop your own membership list. Has that process proceeded smoothly?
Chief Campbell: The question you are asking is if our process of our membership list . . . Yes, we have a committee set up on Musqueam to review our membership and what it should be, but it is not really finalized. Our basic position now is that we want the power and authority to decide who our membership is; then it is up to the band to work out on our own whom we want to be members and whom we do not. We want that authority on our own.
Mr. Manly: And what kind of response have you had from the department to that request? A thundering silence.
Chief Campbell: We had a resolution. We have not heard back from them that I can recall.
Mr. Manly: Thank you very much.
Thank you, Mr. Chairman.
The Vice-Chairman: Thank you, Mr. Manly.
Ms Jamieson: Thank you, Mr. Chairman.
I would like to touch on some other areas that have not been covered yet in the questioning. I very much appreciated the presentation and the excellent exchange with the members as well, especially on the issue of trust, and I know the Musqueam Band has recently had dialogue with the Confederacy of Nations and received their support in the appeal as they go
forward. You certainly have my best wishes because it is going to be a landmark case for all Indian people in the country.
I wonder if we could for a moment discuss your land claim. What is the status of your claim? Where is it at the moment?
Chief Campbell: We had, quite a few years ago, a declaration of the Musqueam land claims, We have been turned down in our claim due to, I think, certain policies of this third party, or municipality, city, where we are presently situated where we have been refused even to negotiate land claims when our declaration was made. Then this paper came out, In All Fairness, which gives certain bands in certain areas the rights to negotiate, but it still excludes the Musqueam Indian Bands and a lot of other bands, I would imagine, that are in the same situation as the Musqueam.
Ms Jamieson: You filed your claim with the Office of Native Claims and it was rejected?
Chief Campbell: Yes. We filed there; but under the policies I guess we just do not exist, and they will not negotiate land claims with us at this time.
Ms Jamieson: I know the policies are wholly inadequate, In All Fairness and Outstanding Business—there are two of them that are supposed to be new, but Musqueam are still excluded. You still have no basis under the current policy on which to proceed with your claim. What reason do they give?
Chief Campbell: I guess it is the third-party concept that they have. In our case it would be the City of Vancouver, provincial … , and there are municipalities surrounding the reserve where their land has already been used or occupied by third-party interests. So they feel we do not have a claim to those lands.
Ms Jamieson: Those kinds of claims are proceeding in other areas, and we will have to chat about that.
Constantly, we have witnesses before us saying that Indian self-government means economic selfisufficiency; land base means settled land claims, and policies are not there that allow Indian people to settle outstanding claims. It seems like an endless circle.
The other area I wanted to ask you about is: Are you aware that negotiations are going on at the moment on a treaty between Canada and the U.S. on fishing, and doesythat affect you? Have you had any involvement? Do you feel you ought to be involved?
Chief Campbell: Pardon me. Excuse me; I did not really get that question.
Ms Jamieson: Currently, there is a treaty being negotiated between. Canada and the U.S. on fishing off the coast. I wonder if that affects you, if you have had any involvement or if you feel you ought to be involved.
Chief Campbell: Yes, we are aware of the talks you are talking about between Canada and the United States. It definitely affects us. It affects all the coastal bands right up along the Fraser River, I would imagine. Sure, we would like to be involved.
Ms Jamieson: Has the Canadian government in any way approached you?
Chief Campbell: No. They have not approached the Musqueam Band as an individual band; I do not know if they have approached anybody else. Andrew?
Mr. Andrew Charles (Musqueam Band Member): I would just like to interject at this point, Roberta, that the Musqueam Band wrote a band by-law, under Section 81 of the Indian Act, to govern its fishing activities over its traditional waters and submitted it to the Department of Indian Affairs, It got as far as the person in charge of band by-laws at the regional office level, and their immediate reaction to that was that we are disallowing the passage of this by-law because it extends itself beyond the reserve boundaries. The connotation attached to that is that it must be resolved under negotiations when the natives go before the first ministers to define what their aboriginal rights are.
There is one other thing I would like to add that I think perhaps we have missed on this particular issue, dealing with both local government taxation and the Musqueam court case. On September 24, 1975, the Alliance of B.C. Indian Bands received a letter from Paul Olivier in which he gave his opinion or he agrees that there is a regulatory vacuum over surrendered lands by which neither the federal government nor the provincial government nor the municipal government nor the reserve government had any powers to regulate the use of surrendered lands. I think that is important when we are looking at the trust responsibility.
Ms Jamieson: Thank you very much, Andrew.
Just to return to the fishing again: Is it fair, then, to say that in your view of your governmental powers you feel that you ought to be able to legislate over traditional fishing areas of the Musqueam Band?
Chief Campbell: Yes.
Ms Jamieson: If that is so, do you feel you should be involved in negotiations like the negotiations that are going on.
Chief Campbell: Yes.
Ms Jamieson: Thank you.
I notice that in your recommendations you include a concept whereby title would be transferred in land from the minister,
or the government, to the relevant bands for a period of 10 years, and then there would be a review over whether you wanted to keep it or return it to departmental jurisdiction. I-low have you thought that would be held? This is the area I am interested in. Would you be able to alienate it from the band? Would you be able to sell it? Would you be able to mortgage it? What are your views on that?
Mr. Reynolds: Chief Campbell has asked me to reply to that. As the band makes clear in its recommendation, although title would be transferred to the band, it is not intended that there would be any power on the band’s part to alienate the land. The band does wish to preserve its land base. It does not wish to sell that land.
Ms Jamieson: Thank you for that clarification. That is a fear of many Indian bands, that once you have it, it will be easily alienated.
There is another concept that has been presented to this committee and I wonder what your feeling is on this: that the land not be held in trust by the minister or go to the band, but that it go somewhere, an independent protectorate office, in between the two. Have you given any thought to that idea?
Mr. Reynolds: I do not think the band—and certainly I have not given any thought to that. But I am not sure really whether that would be an improvement upon the present situation. I assume that “protectorate” would be really some bureaucrats, perhaps containing representative of Indian people. I am not quite sure what the concept is. But surely, if we take the basic position, as the Musqueam has, both in the Shaughnessy case and its aboriginal land claims, that the land is their land . . . I think if you go back in history, if you go back to the Royal Proclamation which may or may not apply out here, but anyway, if you go back to the history of Indian law, it is quite clear that the whole trust concept was designed to ensure that Indian people keep their land intact. It was not designed—with respect to Mr. Justice Le Dain . . . to in effect take away from Indian people their power of control. It was to protect Indian people, in my view. I think that is the trend of the American cases anyway, that the trust concept was there to protect Indian people by making sure that the land would not be sold. I am not really sure if you have sufficient confidence in Indian people, that they will protect their own major asset, whether it be fish, and therefore they should have control over the fisheries, or land, and therefore they should be able to have government over their own land. If you accept that Indian people can be trusted with that trust, then you do not need to have a separate trustee to impose the trust in.
Ms Jamieson: You raise some very interesting points. We have been having considerable debate on those points and I will not carry on with it here because we could go on for hours.
One of the other areas I wanted to ask the Chief a question on is this: You have proposed that some changes he made to the lndian Act, in your recommendations. Other bands are saying, do not change it. Do you think that whatever this committee ends up recommending should be done in such a way that there is flexibility for Musqueam to do what Musqueam thinks is right, and for another band to do what they think is right, or do you think that legislation should be changed right across the board on the basis of some recommendations?
Chief Campbell: Yes. I think basically what our recommendations are . . . I do not think we want to impose anything on any other bands across the country. It should be up to the individual bands to put their recommendations forward and adopt some, if it is good for them, or do not adopt some, if it is not. do not think Musqueam is going to try to impose anything on anybody. But we are putting our recommendations. If they are acceptable to somebody else, that is fine; if not, I do not think we should impose them on other bands.
Ms Jamieson: In fact, then, if this committee were to go beyond, would you welcome other legislation or recognition through other means that would achieve the same kinds of things that you are looking to achieve, whether it be through constitutional entrenchment . . . ? I understand your concern that you do not want to wait forever. God knows how long that is going to take, and reality is here and we have to make some moves in the near future. But are you limited to the Indian Act? Or, are you saying, whatever it takes to get the kinds of things you are pushing for in your recommendations. Can you clarify that for me, please?
Chief Campbell: Yes, I think that is true. I think whatever any band wants. In our case, to achieve our ends I do not think we are going to fight or argue about which way we get it. If we get it, that is fine, whatever way.
Ms Jamieson: Thank you. My final question is this: What kind of jurisdiction do you see the tribal courts having?
Mr. Reynolds: Sorry, I do not think we heard that question.
Ms Jamieson: One of your recommendations is that there be a tribal court system, seriously reviewed or set up. What kind of jurisdiction are you looking for?
Mr. Reynolds: Again, quite honestly, we do not have a great deal of experience when it comes to a tribal court system. Obviously, that does not exist here, as far as I know. There may be a customary system of law which is in operation with some bands; but certainly not in operation in the Musqueam band.
We are aware that such a system exists in the United States. We understand that, for example, non-major criminal offences committed by Indian people are tried within the tribal courts; that certain civil matters, such as adoption and divorce, related
again to Indian people, are also tried in the tribal courts. I understand there is a very recent decision of the U.S. Supreme Court which excludes jurisdiction in respect of non-Indian people.
I suppose all the band is saying at this stage is that we are aware of what is happening in the States in a very general sense and we would like this committee. . . I know you have been south of the border, so you may have already investigated this. But we would be very interested in having the committee look at that because there are issues which we feel should be dealt with by Indian people. And of course I say that as a non- Indian person, but I think there are some issues, such as adoption and divorce, which conceivably are better dealt with by Indian people.
Ms Jamieson: Thank you. You are quite right, we have been south of the border and we met with some of the Pueblo people who do operate tribal courts and have their own judges, their own sheriff, for instance. One of the problems, however, has been that, while the courts seem to be able to respect tribal court jurisdiction or jurisdiction of tribal courts on reserve over Indian people, they have great difficulty with jurisdiction of tribal courts over non-Indian people. So there are some very serious questions there that need to be looked at.
Thank you very much, Mr. Chairman.
The Vice-Chairman: Are there any further questions? Mr. Chartier.
Mr. Chartier: Just a point of information, Mr. Chairman, following on what Roberta was saying. With respect to the constitutional talks, there are items that are marked for early non-constitutional resolution. One of them is international matters. The Under-Secretary of State for External Affairs has invited the representatives of the aboriginal people to discussions with respect to that item. It is going to be taking place on Thursday of this week in Ottawa. People who are interested, especially the Musqueam band, in getting involved in fish talks between the United States and Canada should give the representative of AFN some direction to raise that issue.
The Vice-Chairman: Thank you. I see no further questions. I want to thank you, Chief Campbell, your legal advisers and members of your band, for presenting a very interesting and helpful brief before us. We found it food for thought and I know we will be following it up.
We will now retire for an hour. At 2.30 p.m. we will begin again with the Sto:Lo Nation.
The meeting is adjourned until 2.30 pm.
The Vice-Chairman: Order.
We have as witnesses today, to start the afternoon proceedings, the members of the Sto:Lo Band, led by Chief Point.
Welcome to our proceedings. If you would like to proceed by introducing those who are with you and with your brief, that would be in order.
Chief Mark Point (Skowkale Band, Sto: Lo Nation): I would like to introduce Chief Ron John, from the Chawathil Indian Band, and Chief Clarence Pennier, from the Skowlitz Indian Band.
The Sto:lo are a nation of 24 Indian bands—just for your information, Mr. Chairman.
We will be starting with Chief Ron John, who will do an introduction.
Chief Ron John (Chawathil Band, Sto: Lo Nation): Thank you.
I would like to thank the special committee for hearing us today. I do not have too much to say, but I would just like to remind the committee that probably if all the promises had been kept from years ago, maybe these committees’ job would not have been necessary. Our people have always believed we have had Indian government, and we continue to believe that today. It has only been the Europeans and the settlers who have come to our country who do not respect that. I believe it from the bottom of my heart, for the very fact that the very land that you are standing and sitting on today is my land; and to add more truth to that, I would say for the very fact that I do not call any other place my fatherland or my motherland. This country you are sitting in today is our land, and I hope your hearings throughout the country will bring justice to the people who are bringing their testimony to you and that you will do your best to convince your colleagues of the plight of the natives of this country called Canada.
Chief Point: Then, Mr. Chairman, I would like to read what we call the Sto:Lo Declaration.
We, the people of the Sto:Lo Nation, know the Creator put us here.
The Creator gave its laws that govern all our relationships to live in harmony with nature and mankind.
The laws of the Creator defined our rights and responsibilities.
The Creator gave us our spiritual beliefs, our languages, our culture, and a place on mother Earth which provided us with all our needs.
We have maintained our freedom, our languages, and our traditions from time immemorial.
We continue to exercise the rights and fulfil the responsibilities and obligations given to us by the Creator for the land upon which we were placed.
The Creator had 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.
We, the people of the Sto:Lo Nation, openly and publicly declare and affirm to the people and governments of Canada and British Columbia that the people of the Sto:Lo Nation have held and still hold aboriginal title and aboriginal rights to all lands and resources within our tribal territory; that the people of the Sto:Lo Nation have never reached any agreement or treaty with the Governments of Canada and British Columbia concerning the occupation, settlement, sovereignty orjurisdiction over our land.
We, the people of the Sto:Lo Nation, declare and affirm our inalienable right of aboriginal title and aboriginal rights to the land, the mountains, the minerals, the trees, the lakes, the rivers, the streams, the sea, the air, and the other resources of our land. We declare that our aboriginal title and rights have existed from immemorial, exist at the present time and shall exist for all future time.
We, the people of the Sto:Lo Nation, declare that we shall do all in our power to see that the Governments of Canada and British Columbia recognize, in law and in practice, our aboriginal title and aboriginal rights.
For the information of the committee, the Sto:Lo people are the 24 Indian bands that start at Langley and finish at Yale, on both sides of the Fraser River, and the word “Sto:Lo”, in our language, which is Halkamilum, means “People of the River”.
With that, Mr. Chairman, I will turn the microphone over to Chief Clarence Pennier.
Chief Clarence Pennier (Scowlitz Band, Sto: Lo Nation): Following through on our Sto:Lo Declaration with the Sto:Lo constitutional position, our position in the Sto:Lo Nation is first, entrenchment of aboriginal title in the Constitution; second, consent clause to protect our title; third, identification and definition of aboriginal rights, be they the responsibility of individual bands, tribal councils, and not any other government . . . Rights flow from our title. Government legislation could be enacted to protect and be consistent with what is entrenched in the Constitution.
Indian government: The bands must become legal entities, with authority and responsibility for their lands, resources, and people. The form of government must be determined by the individual bands, through their members. They must have the option of changing their form of government as times and as people change. One form of government should not be imposed on all bands.
Lands and resources:The present reserve lands should be transferred to the bands and not registered to Her Majesty the Queen in the right of Canada. The Indian government then could negotiate their own leases and terms without interference from any other source. The bands could regulate their resources as determined by the people.
People: With legal recognition, the band should have the responsibility to determine what their citizenship is. It will be done through whichever method they choose, whether that be by marriage, birth, adoption.
Finances: The government should transfer the funds directly to the bands to cut out the various administrative charges now in existence. This would allow more funds to get to the band level. The government should not restrict the use of the funds. The bands have their priorities on how to best utilize the funds for maximum benefit to the community.
The primary group to be accountable to is that of the band members and, then, to the government, if necessary.
Education, social development, cultural development, economic development and spiritual development-these aspects of our peoples’ lives should have to be under the control and responsibility of our respective Indian governments. Only our people can decide on the pace of development and assumption of control over our lands, resources, and lives as a collective group.
The Department of Indian Affairs: This department should be phased out. If there is to be a “department” to ensure that the Constitution and legislation are adhered to, it must be done by an independent body. This could be the proposed “Treaty and Aboriginal Rights Protection Office.”
Mr. Chairman, that is the conclusion of our presentation to this subcommittee on Indian self-government, but there are Just a few other items we want to bring to the subcommittee’s attention. With our presentation, we are rejecting the federal government’s position paper in all fairness. We are also opposed to any non-Indians presenting material on Indian government, We reject John Munro’s proposed Indian government bill.
One other thing not mentioned at all this morning in terms of Indian government in relation to the Department of Indian Affairs was the department’s unilateral cutback on funding to the Indians of British Columbia. They have done it for this fiscal year, $6.9 million, and, for the coming fiscal year, an additional $69 million. This has a drastic effect on bands throughout the province.
The Vice-Chairman: Thank you Chief Pennier. Is that the conclusion of your submission? Yes? Then you will be open for some questions, and our first questioner will be Mr. Manly.
Mr. Manly: Thank you very much, Mr. Chairman. I would like to thank the representatives from the Sto:lo Nation for appearing before us and being ready to answer questions. In some of the presentations we have heard previously, representatives from Indian nations have indicated that they already had Indian government in place; that they already had their traditional form of government carrying on, in spite of any actions of the federal government through the Department of Indian Affairs over the last 100 years. I would ask if that is the case with the bands in the Sto:lo Nation, and would you give us some indication of the way in which that traditional government operates.
Chief Point: The type of Indian government that we have in our area, Mr. Chairman and Mr. Manly, is the type which has been carrying on through time immemorial. In our system we have chiefs, councillors, band membership. Band membership is the heart of our communities.
I believe our system is a bit different from what we call “traditional”. We do not have hereditary chiefs in our area. Our style of band government is a form that we have devised; it is an elected band council, elected through band membership. From the 24 chiefs in our area, we comprise what we call the “Sto:lo Nation”—the district council. From the district council, we have an executive committee of 6 chiefs with one chairman. This is a system which works reasonably well for the Sto:lo Nation. I do not believe there is any system in operation which is totally 100% effective. This is the most efficient method that we have for operating the affairs of the Sto:lo Nation.
Mr. Manly: Could you give the committee some idea of the total membership of all bands?
Chief Point: We are looking at 3,000 people when we talk about the Sto:lo Nation.
Mr. Manly: In other areas of British Columbia, we have heard testimony that the reserves which have been set aside for the people have been very small—the acreage per capita being one or two acres or up to three or four acres, and are nothing like the acreage which has been made available to the Indian people on the prairies, for example. Would you say something about how large your reserves are in comparison to your population and whether or not this gives you an adequate economic base.
Chief John: The size of the reserves variesl believe, in the Upper Sto:lo Nation, from several acres to several hundred acres. Our biggest problem about most of our reserves in economic development involves a place for people to live. So we have a difficult time trying to develop because a lot of our membership is off of the reserve.
Mr. Manly: Would many of your people be involved in commercial fishing?
Chief John: No.
Mr. Manly: How important would the traditional Indian fishery be to your people?
Chief Pennier: The traditional Indian fishery plays a large part in the lives of the upper Sto:Lo people as part of the culture and part of our way of life. Prior to the coming of the non-Indian people, we harvested as many fish as we needed for our own use and for barter with other people throughout the province. That is one of the other reasons why our reserves are along the river; our people depended on that fish. Previous governments recognized that our people depended on the fish so they left us beside the river, although they also stated that we did not need large reserves. They made sure they were quite small, but they said, We will reserve you land beside the river so that you will always have access to the fish.
Mr. Manly: Would you feel that sharing in the management of the fishery on the Fraser River would be an essential part of Indian government? Have you any suggestions as to how such sharing in management could be integrated into the federal government’s responsibility for fisheries?
Chief Pannier: That is one of the items for discussion we had with Pierre De Bane when he was in Vancouver last week. We would like to play a part in the management of the resource, but we would also have to sit down with the Lillooet Tribal Council and other Indian groups along the river, so that we can ensure that our management schemes would work to best advantage and ensure that the fishing resource does continue. We do not have our type of management scheme in place yet, but that is something which we would have to work towards.
Mr. Manly: Are you saying that this is something you would want to see developed with other Indian peoples along the river, rather than just yourselves? Is that your suggestion?
Chief Pennier: Yes, the management schemes would have to be developed with all the Indians along the Fraser because that is one of the major fish-producing rivers, the Fraser River. It starts right from Musqueam, all the way past Lillooet and on up to Fort St. James.
Mr. Manly: You are probably aware of the recommendations of the Pearse Commission, that the traditional Indian fishery should be recognized, that there should be a quota established for each band, in consultation, and that bands should have the right to determine how they would use that quota of fish in a given year. Are you in general support of that recommendation?
Chief John:I think before anybody starts talking about quota with the Indians on the Fraser River we would probably have to look at a larger escapement of fish, then we would go into the discussion of quotas.
Mr. Manly: You mean a larger number of fish that get through the commercial fishermen and get into the river?
Chief John: Yes.
Mr. Manly: Thank you very much, Mr. Chairman, and thank you for your comments.
The Vice-Chairman: Thank you, Mr. Manly. Ms Jamieson.
Ms Jamieson: The brief presented by the Sto:Lo Nation was very straight forward and to the point. They did not leave many areas for questioning. I do have two or three small questions, however.
In your statement on finances, you say that the government should transfer the funds directly to the bands and cut out the various administrative charges presently in existence. According to the way you are organized, first, would you want to negotiate the amount of those funds, and with whom, directly with Treasury Board? Secondly, would you do it on a band-by-band basis or as the 24 bands in the Sto:Lo Nation?
Chief Point: We would cross that bridge when we got to it. That sort of question is really premature at this time because we have not established what’ our relationship with the government would be. Once that was understood, then we would put in place the proper administrative body that would be necessary to administer the kind of relationship we would have with the federal government. At this time I think it would be premature to respond to that kind of a question.
Ms Jamieson: You are saying when you have your relationship straightened out. Are you then looking to the constitutional discussions first of all? Some witnesses before us have said first the Constitution then these other things. Others have said that they need these other things now and they will do the Constitution at the same time. Do you have any comments on the timing?
Chief Pennier: Our preference would be to have our position of aboriginal title entrenched in a Constitution and, as we have said, the appropriate legislation can follow through from that as long as title is in the Constitution because, when you look at it, legislation can be changed by another government.
Ms Jamieson: What would you then be looking to this committee to recommend in the short term? Say we have to do a report by September, would you expect this committee, for instance, to say something before the constitutional conference? Some witnesses have asked the committee to do that. What is the best thing you think this committee could recommend to put your position in a better light?
Chief Pennier: The easiest thing would be to put the Section 37 conference another two or three years further back.
Ms Jamieson: Thank you.
The Vice-Chairman: Are there any further questions? Mr. Tousignant.
Mr. Tousignant: I just want to take a minute to congratulate you. At least we know exactly what you want in two pages. It did not take very much to tell us exactly the way you look at the situation.
In your brief you say that the government should transfer the funds directly to the bands to cut various administrative charges. In your view, if the department had to be phased out, who would you be dealing with to establish the various amounts of money needed for funding the bands? Would you deal directly with the Treasury Board to establish the amounts needed, or anybody else from a department?
Chief Pennier: To answer part of that, if we could take a look at the amount of funding available to the lndian people through not only the Department of lndian Affairs but if we could also take a look at what is available through Canada Employment and Immigration, National Health and Welfare, Secretary of State, if you added up all those you would probably be looking at a couple of billion dollars that is earmarked as Indian dollars. If there was a mechanism to transfer all that out, or more, if we negotiate more, then there would be a lot more dollars coming through. We are not only looking at just Indian Affairs.
The Vice-Chairman: Thank you, Mr. Tousignant. Seeing no further questions, I want to thank you, Chief Point, Chief Penmer and Chief John, for bringing forward your brief. It was brief and to the point, and people questioned it well. Thank you very much.
We will call a five-minute break while the Bella Coola District Council comes forward.
The Chairman: Members of the committee, the next submission is from the Bella Coola District Council. A document prepared by the district council has been distributed to the members of the committee. The chairman of the district council is Mr. Archie Pootlass, and I would ask the chairman, Mr. Archie Pootlass, to introduce the members of his delegation and then to proceed by reading his submission into the record, after which we will talk to you for a little bit about it.
Mr. Archie Pootlass (Chairman, Bella Coola District Council): Thank you, Mr. Chairman. I would like to call on the committee to ask if we could start our presentation in our traditional form. We start with a Nuxalk prayer. I am going to call on our hereditary chief, Chief Lawrence Pootlass from Bella Coola, to call in the Creator to give us guidance, strength, and wisdom as we discuss our future.
Chief Lawrence Pootlass (Hereditary Chief, Bella Coola District Council): First of all, all of us would like to acknowledge our Creator.
Our gracious Heavenly Father, we come to you with humble hearts. We pray for everyone in this building; that he will give us wisdom and knowledge from above and help us with our problems. You are the only one who can help us, and we pray for wisdom for everyone around this table in this building. In Jesus’s name, we pray.
Chief Pootlass: Thank you, Chief.
I would like to introduce the Bella Coola District Council: Clifford Hanuse, Oweekeno, who is our district council administrator; Chief Ed Moody, Nuxalk Nation, Bella Coola; Chief Percy Starr, Kitasoo; Chief Alex Chartrand, Oweekeno. I would also like to acknowledge, Mr. Chairman, members of the Oweekeno Nations, Kitasoo Nations, Bella Coola Nations, and all the other nations who are here to hear this evidence given to the special committee on their behalf.
Mr. Chairman, on behalf of the Bella Coola District Council, I would like to welcome the committee on Indian self- government to British Columbia and thank you for this opportunity to appear before you. Mr. Chairman, weasked the committee to come to Bella Coola to hear our evidence. Unfortunately, due to weather conditions here in this region, we could not accommodate that, but we would like to appear before the standing committee at some future date in Bella Coola, or one of the member bands of the Bella Coola District Council.
Our presentation today has two parts. A brief, which I will present to you in a moment, and two background papers, Parts II and III, which, because of their length, we wish to submit along with our brief to be entered into the minutes and proceedings of the special committee’s hearings.
Mr. Chairman, I would like clarification, Will all this evidence be recorded if we ask to have these components, these papers, tabled?
The Chairman: Hon. members have heard the request from the witness. is it agreed that the accompanying papers be part of today’s proceedings?
Some hon. Members: Agreed.
Ms. Jamieson: I have a question, just to see what it is Mr. Pootlass is looking for. Do you want it to appear in the actual record of the day or are you satisfied with what I think it is we are asking one another here, that is to just refer to it as a document that was tabled? Is that not the difference? If he reads them all, they are all in the proceedings, is that right? If
he does not—would you explain the difference, Mr. Chairman.
The Chairman: Yes. That which is read into the record is part of today’s proceedings. It is possible for other documents to become part of today’s printed proceedings by way of motion of members of the committee. There is, of course, another avenue that we sometimes follow with very lengthy documents which would be extraordinarily expensive to print; we sometimes ask that they be tabled as exhibits and their titles are listed. They are available to anyone who wants them, on request. But the documents we have here are not unduly long and I think they could easily become part of the printed evidence, as an appendix to the printed evidence, if that is agreeable to the committee. Is that agreed?
Some hon. Members: Agreed.
The Chairman: It is so ordered.
Chief Pootlass: My interpretation of that, then, is we read to you, The evidence that we provide to you, right now, is the contents in the brief itself and the other documents will be included.
The Chairman: Yes, the brief that you read to us now will be part of the printed evidence in today’s Minutes of Proceedings and Evidence. The other documents will be part of the same record and they will be printed as an appendix to the same issue.
Chief Pootlass: Mr. Chairman, we present this submission to you today, on behalf of all our indigenous aboriginal nations, in a spirit of optimism, dignity, co-operation and strength.
Through the sovereign powers vested in our idigenous aboriginal peoples by the Creator, our inherent aboriginal title and rights to our land and resources have remained with our nations from time immemorial. Our aboriginal title and rights are the foundation upon which we, the Indian peoples, will secure our survival for the future.
Traditionally, as indigenous aboriginal nations, we held absolute sovereign powers over our tribal territories, our resources and our lives. Through our Indian governments we held aboriginal title and possessed the right to govern ourselves, to make and enforce laws, to decide citizenship, to wage war or make peace, and to manage our lands, resources and institutions. We had our own political, legal, social, religious and economic systems.
The goals of our indigenous aboriginal peoples, from the past through to the present and to those yet unborn, provide us with a framework for further developing, strengthening and entrenching our Indian governments as the first order of government in Canada.
Aboriginal title and rights position: We see the first step toward realizing our political goals as the recognition and effective implementation of our aboriginal title and rights. This is the foundation upon which all future relations between
our Indian governments and the Government of Canada must be based. With this in mind, we wish to state clearly to you today the position taken by our hereditary chiefs on our aboriginal title and rights.
We, the indigenous aboriginal peoples, are the original people of this land and have the absolute right to self-determination which we exercise through our Indian governments— the first order of government in Canada.
Our aboriginal title and right to self-determination are confirmed, strengthened and expanded, by the sovereign powers vested in our Indian peoples by the Creator.
Our tribal territories and the resources they contain were given to our Indian nations by the Creator, to provide for the essential needs of our people. Adequate amounts of land, water, timber, minerals, oil, gas, wildlife, fish and other resources were made available to our lndian nations by the Creator, in perpetuity, to ensure our socioaeconomic development and the peace, order and just government of our people.
Our lndian governments, through the sovereign powers vested in them by the Creator, have exclusive jurisdiction to make laws affecting the lives and wellbeing of our people. Without limiting the scope of the possible areas under the jurisdiction of the lndian governments, our governments have the authority to develop a constitution for our indigenous aboriginal nations and to make amendments which from time to time may be necessary; to define and regulate who shall be a citizen or member of our lndian nations under the jurisdiction of our lndian governments; control and manage all our nations’ tribal lands, including all tribal lands or resources areas that will from time to time be established under the jurisdiction of our Indian governments; control, manage and regulate all waterways and bodies of water within the boundaries of our aboriginal tribal lands, including water rights and foreshore rights; control, manage and regulate all air space above our aboriginal tribal lands; control, manage and regulate the use of all forests that are located on aboriginal tribal lands, including all tribal forest resource areas that may be established in the future; control, manage and regulate the development of all mineral resources located under and within the boundaries of all aboriginal tribal lands, waters and resource areas; control, manage and regulate the development of all oil and gas resources located within the boundaries of our aboriginal tribal lands and within any additional tribal lands, waters, and resource areas that may be established from time to time; manage the conservation of all migratory birds that pass through aboriginal tribal lands, including those migratory bird sanctuary lands that may be established from time to time; control, manage and regulate the use of all wildlife resources found within aboriginal tribal lands and all other wildlife resource areas that may be established from time to time; control, manage and regulate the use of all fish resources in the waters that are defined as our aboriginal fisheries by our governments; establish and implement conservation laws for all resources within the boundaries of our aboriginal tribal lands and waters; productively manage the environment of all aboriginal tribal lands and waters; manage the economy of our
indigenous aboriginal nations through the development, implementation and enforcement of regulations for taxation, trade, ‘and commerce; control and manage all aspects of education for the people of our Indian nations; maintain social order within our lndian nations; regulate all matters pertaining to the proper health, welfare and care of our aboriginal peoples; solemnize and dissolve marriages within the institutions of our traditional indigenous aboriginal religions; protect all of our peoples’ sacred places and their right to practice our traditional religions, cultures and languages; develop effective communication systems for our Indian nations; and administer justice for our people, including maintaining aboriginal tribal courts and imposing penalties for the violation of laws established by our Indian governments.
In presenting our aboriginal title and rights position, we reaffirm our existence and responsibilities given to all Indian nations on this continent. These rights and responsibilities held us together as nations for thousands of years, and we celebrate our survival and the beauty of our land.
We now share our land with others. Both our people and the Euro-Canadian people can draw strength from each other. We seek the unity and strength of Canada in the same way we seek the unity and strength of our people.
Today’s perspective: Looking again at aboriginal title and rights. Our nations view aboriginal title as the territorial aspect of our human right to exist as a people. We are one of many nations of the world. We see aboriginal title as our link with the Creator. We see it as the link to Canada and the world through which we, as distinct peoples, can share our nations knowledge and experience.
However, Canada relies on an interpretation of aboriginal title and rights that only justifies its colonialistic policies. Canada says, upon the Crown’s discovery of our territories, the Crown my claim our land if the lands are unoccupied or if the lands are populated by indigenous populations considered by the Crown to be uncivilized. Canada says it can pass laws which have the force to deny us our rights of territorial possession.
This interpretation of aboriginal rights denies our worth and dignity as Indian peoples. Canada persists in advancing this position, notwithstanding the fact that the world community is committed to the elimination of colonialism in all its forms. We find it ironic that Prime Minister Trudeau openly criticized those who opposed patriation as being proponents of colonialism; yet the Prime Minister, through patriation, was
himself perpetuating Canada’s colonial relationship with our lndian nations.
We say Canada must look again at how it has defined aboriginal title and rights. We say the doctrine which Canada continues to use is racist, self-serving and colonialistic. Canada must change its position for the dignity of Canada itself.
Aboriginal title and rights, as defined by our lndian nations, must be the territorial foundation of Canada forever. Canada must recognize and respect our aboriginal title, our peoples, our Creator and our governments as the first order of government in Canada and in British Columbia. We will be pleased to recognize Canada’s legitimate claims in return.
Towards a resolution: International working principles. Two principles are basic to the position of the Indian peoplm in British Columbia. The first is the principle of the self- determination of peoples. This is a principle of international law, restated most recently in the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. Canada has signed both covenants. Both provide as their first article:
All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
The principle of the self-determination of peoples is a basic political and legal concept. To be effective, it must exist with a second principle, that of the equality of peoples. For self- determination to have meaning, there must be a basic respect between political communities.
The British North America Act of 1867 sets indigenous, aboriginal nations apart, recognizing our uniqueness within Canada. Canadian governments have undercut that fact by deliberately minimizing the significance of this constitutional provision. lndian governments are treated, instead, as no more than municipal governments. Our communities are unique in coming under Canadian federal jurisdiction; yet, we have not been given full recognition as a distince order of government within Canada. This can change. Canada can fulfil the promise of the BNA Act and take a leading role internationally in applying the principles of self-determination and equality to our indigenous, aboriginal peoples.
Our aboriginal title and our right to self-determination are rights we have not and will not surrender. The Canadian government will have to accept that Indian people will not simply disappear.
In our quest for self-determination, we should not be called separatists. The tensions between the English and the French have led governments to refuse to even listen to our position. We are committed to a strengthening of Canada for we have more at stake in this country than anyone else.
Serious discussion on models of self-determination has begun in Canada. There has been considerable interest in the Inuit’s achievement of home rule in Greenland. The Inuit now have an elected Parliament and an increased jurisdiction over all matters affecting their island. Greenland remains a part of Denmark but is a politically distinct part. For example, Greenland may withdraw from the European Common Market, although Denmark may remain a member.
The people of Canada have shown interest in other models of self-determination; for example, the devolution proposals of the United Kingdom, which offered Scotland and Wales regional Parliaments and a measure of home rule. Also, they have shown interest in the Spanish constitution of 1978, in which home rule has become possible for a number of regions of Spain and has become a reality in Catalonia and the Basque region.
While non-Indians have been slow to accept our ideas, there has been a dramatic change in the last few years. Judge Thomas. Berger in a report of the Mackenzie Valley pipeline inquiry in 1977 discussed the concept of Indian self-determina- tion 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 Association 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 considered 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 a first ministers conference will convene to discuss the definition of indigenous aboriginal nations’ aboriginal and treaty rights.
We look to these events as a sign that Canada may finally be prepared to recognize and accept our nations’ definition of our aboriginal title and rights.
Proposed Resolution Mechanism for Aboriginal Title and Rights: The position of our lndian nations in British Columbia is that the authority of our governments, as the first order of government in Canada, is not derived from the political institutions of those who came originally from elsewhere.
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 principle of the equality of peoples. It can be an integral part of the Canadian Constitution while it serves as a constitution confederating lndian 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.
It is our position that representatives of our Indian nations and Canada must now enter into internationally supervised discussions to:
1. Review and define the present roles and responsibili- ties of our Indian nations and the Canadian government.
2. Define in detail and agree upon the full area and boundaries of territories occupied and/or owned by our Indian nations.
3. Define in detail the means by which existing and future conflicts may be resolved between Canada and our Indian nations.
4. Define and determine the extent and amount of payments owed to our Indian nations by the Canadian government for lands and natural resources already confiscated or expropriated by the Canadian government and/or its agents and agree to the method and terms for payment.
5. Define the terms for political coexistence between our lndian nations and the Canadian government.
6. Define an equalization payment plan between the Canadian government and our Indian nations.
7. Define the alternatives for individual Indian citizenship in Canada in addition to our own traditional national citizenship.
8. Define and agree on the mechanisms needed to ensure that each Indian nation can exercise full self- government with the Canadian confederation.
9. Define the roles and authorities of our Indian governments and other matters related to fishing, wildlife, religious lands protection, water resource management and control, use and development of minerals, petroleum resources, timber and other natural resources.
10. Negotiate the terms of a treaty which will codify the agreements above, as well as define the measures necessary to settle unresolved territorial claims.
11. Agree upon the formulation of an international indigenous trust council within the United Nations to oversee future relations between indigenous peoples and the countries with-which they are associated.
Discussion shall proceed in accordance with the following principles:
(a) That the aboriginal nations of Canada have the right to maintain and develop internal self-government,
including the right to maintain and develop their cultures, languages, religion and traditions.
(b) That the Indian nations of Canada own and have the right to control our tribal lands, waters and the natural resources thereon and therein.
Once agreements are concluded, they would be entrenched in the Canadian Constitution and the constitution of the indigenous aboriginal nations and could not be changed without the consent of either party.
The Powers of Indian Governments as the First Order of Government in Canada:. On the basis of our aboriginal title and rights and the covenant between our Indian nations and Canada, we further propose that the Canadian government recognize with its Constitution an indigenous aboriginal nations assembly which will serve as a legislative body within Canadian federalism. Our Indian nations will design the structure of our legislative body in keeping with our traditional structures and laws. The proposed structure, which will be discussed and ratified by the Indian peoples, is outlined in a diagram entitled “Organizational Structure: Indigenous Aboriginal Governments as First Order of Government” appended to this brief.
Financial arrangements arising from the convenant: As the first principle determining financial arrangements between our lndian governments and the Canadian government, our nations must retain title and rights to tribal lands and resources. There can be an equitable sharing of their revenue created from those lands and resources.
Stable, workable, and fair financial arrangements are of fundamental importance. Historically, Europeans confiscated our nation’s resources with little or no compensation, leaving an inadequate land and resource base for our present day governments. Moreover, the federal government has used funding as a method to manipulate and control our Indian governments. Existing arrangements lock our people into a permanent welfare system which cannot produce any positive solutions. Controversies will continue endlessly unless basic changes are made in the financial arrangements which directly affect our communities. It is only when structures of dependence and welfare are removed, that equality and self-determination can be achieved. Four arrangements are essential to bring about the desired change.
First, land and resource claims have never been satisfactorily resolved in British Columbia. This is a fact acknowledged by the federal government in its statement on aboriginal title and rights in 1973. This longstanding issue has to be dealt with honorably before financial arrangements can be finalized.
Second, Indian governments, like provincial governments, must be able to qualify for equalization payments. We agree with the philosophy that there should be equal standards of public services in all parts of the country. The provinces are free to choose their own priorities. This is the kind of unconditional, predictable funding that the Indian governments seek. Funding based on need, not short-term politics, will be funding well spent.
Third, lndian governments must be the vehicles for delivery of programs and services to our people. 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 government. The recognition of Indian governments as the first order of government in Canada will allow us to assume the administrative responsibilities that are now the white man’s burden, of the Indian Affairs department. The savings in administrative costs will be substantial and political responsibility for Indian programs will rest where it should, with our Indian governments, as first order of governments.
Fourth, our governments must be the direct recipients of transfer payments from the federal government, whether they are equalization, revenue sharing, or program moneys. Transfers of funds will be handled in the same manner as transfers to provincial and territorial governments. Reporting and accounting will be defined by agreements negotiated between our governments and the federal government, and not by the Indian Affairs department or any other government department. This will allow maximum flexiblity and will also automatically reduce the administrative costs involved.
Representation to the institution of the central Canadian government: The covenant, as part of the Constitutions of both Canada and our Indian nations, will define the structure and powers of Indian governments and the relationship to other governments in Canada. Our Indian governments will be a recognized order of government in Canada comparable to provincial governments. The federal government will have exclusive jurisdiction over matters coming within its powers. Our Indian governments will have exclusive jurisdiction over matters affecting our aboriginal title and rights. And provincial governments will have jurisdiction over matters coming within their domain. Relations between our governments and other orders of government in Canada will bealtered only by mutual agreement, as is the case today between the provinces and the federal government.
In keeping with the lessons learned in other countries which have decolonized, we recommend that a process be established through the covenant that ensures the protection and progress of our Indian governments in their journey towards the
exercise of full self-government. Protection may be afforded through a number of institutions. A constitutional conference, formally involving the three orders of government, can be convened on an annual basis to review the progress of the new federalism and to upgrade the position of our Indian governments on a yearly basis.
Regional ombudsmen’s offices can be established, made up of elected representatives from Indian governments and the Canadian governments. These offices would have the power to supervise legislation enacted by each order of government to maintain distinct jurisdictions without continual reference to the courts.
The office of the Governor General can be enlarged to include a veto function where, in the opinion of the Governor General, legislation enacted by federal and provincial Parliaments conflicts with aboriginal title and rights. The office might further be expanded to include a representative of Her Majesty the Queen in Canada in right of our Indian governments. These are suggestions only. Through negotiations we can work out a model to provide the protection required for a stable decolonization.
We look forward to the day in the future when our Indian governments are strong, when the spirit of co-operation between our governments and the Canadian government is firmly established, and Canadian federalism is strengthened as a result.
Conclusions and Recommendations: We are born with our aborginal title and rights. We pass these rights on to our children. That is what it means to be Indian. To date, the Canadian government refuses to recognize our aboriginal title and rights. In effect, Canada refuses to recognize us, the original people of this land. The Government of Canada must not continue in this blindness. To do so will delay indefinitely all resolutions of these issues. This would be a sinful legacy to leave to our Canadian and Indian children yet unborn.
We do not want a settlement of our aboriginal title and rights which in any way reflects a policy of termination, nor do we want a final cash-for-land settlement like the James Bay and Alaska agreements. We want recognition and acceptance of our Indian governments as the first order of government in Canada. Our nation’s self-determination will free both Indian and non-Indian peoples from the structures of colonialism and dependence. It would pour meaningful content into the principles of self-determination held high at the United Nations. Canada could then offer an inspiring and realistic example to the international community.
We now recommend that the Special Committee on Indian Self-Government carry out the following:
1. Table the three parts of this position paper in the House of Commons before the March Section 37 Conference, with the following recommendations to members of Parliament and the Government of Canada:
That our aboriginal title and rights be recognized and accepted;
That there be established a joint secretariat comprised of representatives of our lndian governments and the Canadian government to draft a political covenant recognizing and accepting our aboriginal title and rights as they are defined by our governments;
That the principles for a working relationship in this position paper be recognized, accepted and used as a basis for implementing the above recommendations.
2. Distribute this position paper to all our indigenous aboriginal governments for their consideration—I emphasize, for their consideration.
We have extended to the Government of Canada our firm and final offer to begin discussions with our lndian government. Such discussions can only proceed if Canada accepts the following principles already stated:
(a) That the Indian nations of Canada have the right to maintain and develop their cultures, languages religion and traditions; and
(b) that the aboriginal nations of Canada own and have the right to control their tribal lands, waters and natural resources thereon and therein.
We seek the response of Prime Minister Trudeau, representing Canada. Specifically, we wish answered whether Canada accepts or rejects the above-stated principle. If the principles cannot be accepted, we wish a written response as to the reasons. If the principles are acceptable, we will be in a position to conclude an agreement in principle and discussions may begin forthwith.
We give Prime Minister Trudeau until March 10, 1983 to respond. Failure to respond will be accepted by us as a refusal by Canada to accept us as the original peoples of this land, with rights to our land and to our future as Indian nations. Canada’s refusal will leave us with no choice but to pursue our goals without reference to Canada.
Mr. Chairman, thank you for your attention. This concludes our presentation.
The Chairman: Thank you very much, Mr. Pootlass.
We will now proceed with some questioning. Mr. Manly, would you like to begin this round?
Mr. Manly: Mr. Chairman, I would like to thank Mr. Pootlass and the representatives from the Bella Coola District Council for appearing.
I guess my initial reaction would be to the second—last paragraph in your brief, where you more or less give Prime Minister Trudeau an ultimatum to respond by March 10 to your brief. I hope that if you want him to respond you will be sending a copy of it directly to him with that request, because sometimes the minutes of this committee do not always reach his attention—to put it mildly. I would suggest that you should probably contact him directly.
I am also concerned about the tone of confrontation that this sets up. If we are talking about reaching some kind of mutually satisfactory agreement between Canada and the Indian people of Canada, if we are talking about the need for Canada to recognize aboriginal people’s governments and to put in place some kind of funding mechanism, I think you have to ask the question: What is in it for Canada? Perhaps it might suit the purposes of the government to ignore your ultimatum, perhaps it might suit the purposes of Prime Minister Trudeau and the present government not to want to come to terms with the Bella Coola people, or with any of the other peoples of Canada. By setting up this kind of ultimatum, you make it yery easy for them to refuse to deal with you. I am wondering ifyou would like to comment on that concern that I have.
Chief Pootlass: Thank you, Mr. Manly. I will try to respond to your concern.
I think we spell out here in our presentation quite clearly, time and time and time and time again—and we experience it still today, you come and look in our communities—the refusal and the rejection that our peoples have been receiving. I thank you for your concern. We—the fellow chiefs—view this opportunity of defining our rights, as we sit before you here today, as our opportunity to participate fairly. Pardon me if we were that naive, but I hope that you will take our definition to the Prime Ministerand, hopefully, your recommendations of support will be reflected in his response. I see the special committee process as our avenue to participation in the definition of our self-government and our future.
Mr. Manly: Just to clarify our situation, my understanding is that our mandate is separate from the constitutional mandate and, while there is some overlap, I do not think this is our primary focus. A good deal of your concern in this paper relates to basic constitutional decisions that have to be reached at the Section 37 conference. Given our schedule of hearings, I am not sure that it would be possible for us to get a recommendation to Prime Minister Trudeau embodying this. I am saying again, if you want some response from him I think it would really be helpful if you addressed him directly. I cannot speak for all members of the committee on this, but that is my sense of it.
Chief Pootlass: I want to reiterate: our view of this opportunity to present our views on self-government, self-determination for the future, is that a response from Trudeau will help us decide on whether or not we will participate in the Section 37 conference.
Mr. Manly: Just to clarify our difficulty, we are receiving a great many views from different Indian peoples across the country, and whether we opt for one view or another I think is too early for us to say. So we are not really prepared at this time to make that decision. At least I do not think I am.
Chief Pootlass: I realize the timeframe is fairly short, but I am certain from what I heard from the presentations that went on yesterday that our presentation today is in line with other presentations. I realize the timeframe is short, but hopefully we will get some form of response.
Mr. Manly: If I could just move briefly on to a couple of other issues, you have made some very interesting suggestions. First of all, you suggested that what we want is neither a constitutional settlement nor a legislative route, but rather some kind of new covenant has to be arranged. I wonder if you could expand on that a little for the committee.
Chief Pootlass: Could you clarify your question?
Mr. Manly: On page 12 of your brief you say the proper way to define and establish relations between indigenous aboriginal governments and the rest of Canada is not through legislation or constitutional amendments but by a basic political agreement, a covenant or social contract. I am not sure what the difference would be between that and something that would be within the Constitution.
Chief Pootlass: I think I repeat several times in our presentation it is our belief that we are still and will always remain nations of a people. I am a member of the Nuxalk Nation, and I have with me neighbouring communities who represent the Oweekeno Nation and Kitasoo Nation. We ask for recognition of this. But to further our relationship, a covenant or political agreement is necessary.
Mr. Manly: Would this require any change in the Canadian Constitution?
Chief Pootlass: I think we spell out in our position here that when we reach an agreement and recognition that within what is now known as Canada Indian nations do exist, they do have territorial lands and rights—once this principle is reached, I think we call for each other to have their own constitution.
Mr. Manly: Getting on to another question, on page 14 you talk about establishing an indigenous aboriginal national assembly, which will serve as a legislative body within Canadian federalism. This is a suggestion that has been made in other areas as well, I think, and it is one we would want to look at in some detail. Would it be your idea that Indian
people would not vote, for example, in provincial elections, but rather would vote for this national assembly?
Chief Pootlass: I will have to refer to the chart at the end of your booklets.
Yes, we do call for an indigenous aboriginal government.
Mr. Manly: Would Indian people still relate to the federal government? Would you still want to participate in elections to the federal government in terms of the present constituencies, or would you want to see indigenous constituencies?
Chief Pootlass: I think those are details that will have to be defined through the established covenant.
Mr. Manly: Would you see this indigenous national assembly as including non-status Indian people and Métis people and Inuit people as well as lndian people?
Chief Pootlass: As I presented and as in our presentation, I think our position here is open for consideration by these people. But speaking from the Nuxalk Nation’s point of view, one of the responsibilities is with our indigenous governments in defining citizens and membership. They could be included if they so wish.
Mr. Manly: Thank you very much for your answers and your presentation.
Thank you, Mr. Chairman.
The Chairman: Roberta Jamieson.
Ms Jamieson:Thank you, Mr. Chairman.
I would like first of all to commend the Bella Coola District Council for the brief they have presented to this committee. I think particularly the second section, and to some extent the first section, as I have flipped through them, provide an international framework which backgrounds the work of this committee and which it seems to me is highly relevant in the regulation of future relations between first nations’ government and the Canadian government.
In particular, I note that you—and I have underlined it a few times in my book, and I am going to try to keep it in mind for the report—one of the principles you reinforce is that of basic respect between political communities. I think the brief is both politically sensitive and quite astute.
I have also looked at the third section and would direct the attention of my colleagues to this at some stage, because what it does in a page and a half is set out the ministers point of view, the department’s point of view, of Indian government, and then that of the Bella Coola District Council. I think that comparison is very useful.
In terms of questions, you have answered a great many of the questions in your brief. My questions will be quite short, minimal. But I would like to ask you about the international trust council. As I understand it, this international trust council is one of the United Nations . . . Is that correct?
Chief Pootlass: Yes, that is correct. We are calling for the formation of an international trust council co-ordinated by the United Nations. We strongly feel here that Canada could play a leading role in the establishment of such a council
Ms Jamieson: So you suggest to this committee that Canada initiate the establishment of this type of council? It is my understanding that, to get anything out of the United Nations it takes—as some of my colleagues know better than I do—10, 20 years. Do you think negotiations or discussions could begin at this stage involving the Canadian government?
Chief Pootlass: Yes. We are making our presentation to you who represent the Government of Canada. I firmly believe that, if the Canadian government took on a spearheading role in the establishment of this trust council, it would be possible to speed up this process.
Ms Jamieson: Thank you. This certainly is consistent. I got out my copy of the declaration of the First Nations and the treaty on aboriginal rights’ principles and found that, certainly, what you havc suggested here is very very much in line with this.
I wonder if I could ask you this: In the covenant that you suggest being negotiated, signed and ultimately incorporated into the Constitution of Canada and the constitution of the First Nations, would you see the ingredients of such a covenant coming from such documentation as the declaration of First Nations? Is that the kind of covenant you would be looking at?
Mr. Pootlass: Bear with me for a minute, I am going to check with my technical data.
Now I can say, yes, Yes; I think the declaration by the AFN is in line with what we are proposing. I think we go a little further than that, and we call for the formation of our constitution and the definition of our territorial and resource boundaries.
Ms Jamieson: Thank you. I have one last question and that is: Would an aboriginal and treaty rights’ protection office become this international trust council of the United Nations? Would they also be a sort of watchdog to see whether or not Canada lives up to its obligations to Indian people?
Chief Pootlass: Yes. I believe they will play a meaningful role of monitoring our situation here in Canada.
Ms Jamieson: I think this is an interesting concept to keep in mind, because what this does for me at least, is to elevate . . . well, in the past as we all know, Canada has had a miserable record in living up to its obligations, treaty- or otherwise, to Indian people. and to elevate it, or to put it under some kind of international scrutiny, would do a lot, I think, to force it or expose the fact that it does not live up to its obligations. Thank you very much.
The Chairman: Mr. Oberle.
Mr. Oberle: Mr. Chairman, just a very brief intervention. I join my colleagues in thanking you very much for a well
thought-out and very specific brief. Both your sections will givea lot of food for thought, and have introduced a number of new ideas that we have not had presented to us before—all of them, incidentally, in line with the declaration of the First Nations on treaty and aboriginal rights’ principles. May I ask If you have endorsed these principles of the Assembly of First Nations? It comes, as Ms Jamieson says, very close to the kind of covenant of which you speak. It includes, for instance, a section suggesting an international tribunal such as you have. Many other delegations have declared their allegiance to these principles. Is that your position as well?
Chief Pootlass: Yes. B.C. played a major role in the framing of the declaration of the First Nations. Our leaders were there; and our hereditary chiefs, our elected chief, and some of our council members did support that.
Mr. Oberle: Mr. Chairman the brief is, as I said, very clear and specific. We want to study it in great detail. I have just one final question which may bejust a little bit facetious and relates to the question Mr. Manly asked. By giving the Prime Minister an ultimatum, you are saying that:
. . . Canada’s refusal will leave us with no choice but to pursue our goals without reference to Canada.
Now I am quite certain that you have no intention of leaving this land which is your soul, and I can tell you that, even though I am a new Canadian, 1 do not know too many Europeans who would pack up and leave. Since, in the early pages of your submission, you talked about self-government and the right that you had to declare war, if you were to declarewar to settle these problems, and since some of your people Joined the Europeans in the last war in Europe, could I join you? You see, I have an idea that you might have a chance of winning. You have considered war, I take it?
Chief Pootlass: To begin with, I will answer your first question. Our people here will never pack our bags and leave. No. We claim title, and we firmly believe that the title to the land. . . these are our roots. That will remain within our veins. I believe that we are pursuing a different type of warfare-a war which has been inflicted on us as a people over the last hundreds of years. It is psychological warfare. We are responding. Thank you.
Mr. Oberle: Thank you Mr. Chairman
The Chairman: Thank you very much Mr. Oberle. You talk about war, Mr. Oberle, so I just want to tell you that I saw our tank the other day. It was not working; it was being pulled by two ski-doos, but it might just start to work.
Mr. Oberle: Well, as I was saying, I think the Indians have a chance of winning. I want to be on the winning side next time around.
The Chairman: I understand you. Our next questioner is Sandra Isaac.
Ms Sandra Isaac: Thank you, Mr. Chairman. Under your system now, with regard to family law or child welfare, what measures are currently being taken to ensure that children stay within their home environments, and are not taken away through, for example, the Children’s Aid Society?
Chief Pootlass: To answer that question, there are Indian governments in this region which are implementing their goals to achieve lndian self-government. Just to give you an example, the Sahaptin Indian band has developed its tribal law on the care of their children, and are effectively now in full control of this responsibility area. I think other communities are beginning the development of their tribal laws.
Ms. Isaac: Do you plan to follow that sort of model?
Chief Pootlass: Yes, we do plan to pursue and to revive our tribal laws which are presently in existence. As Indian people, our tribal laws are passed down. Right now, laws presented on paper are a new format, Historically, they have been passed down, generation to generation. Protection of our children, our future, is entrenched in those laws, and we are in the process of writing what has been handed down over the years.
Ms. Isaac: Thank you.
Now, with regard to membership—on page 5, I think—you define and regulate who shall be a citizen or member of Indian nations under the jurisdiction of your form of government. Does that mean, under Section 35 of the constitution, which defines our aboriginal and treaty rights, you would be agreeable to an equality rights clause which would state that these laws be applicable equally to male and female? Would you be in favour of that?
Chief Pootlass: Yes, in defining, reaffirming and putting on paper our laws regarding citizenship membership, our people have never—and we do not today—discriminated against our women. We place them high in our society with respect and dignity. We have no discrimination policies in place. That is how we view Section 12.(1)(b).
Ms. Isaac: Thank you.
The Chairman: Are there further questions?
Clem Chartier, please.
Mr. Clem Chartier: Yes. Basically, I have a statement with a very small question.
Chief Pootlass, I would justlike to say I have been, in my own mind, trying to grasp and am still grasping between the colonial concept of aboriginal title and the right to exist as a people. I am glad to see you are able to address this in such an interesting and intelligent manner. I still have to grasp it in my own mind because I originally saw the two as being incompatible, one being a colonial manner of depriving Indian peoples of their land, calling it lndian title and justifying confiscation of lands, whereas the right to exist as a people, self-determination,
was a higher right. I see you totally reject that colonial approachand are giving aboriginal title a meaning from an Indian point of view, which is very helpful.
Going on to my question, I respect as well the position of Indian nations that they must and should have the right to determine their own membership. But again, because I represent the non-status Indians as covered by the Native Council of Canada, we do have a concern about those people who have been denied rights or have lost their rights. Before we could say we definitely and totally agree Indian nations should have the unfettered right to determine their own membership, we would like to get some sort of assurance that the rights of those people would be dealt with in a fair manner.
What ways do. you see of dealing with the issue of non-status Indians? How will your nations approach rectifying that issue?
Chief Pootlass: This question has been addressed by the Nuxalk nation. We do have a membership clerk, who is presently working on our tribal laws. In the development of our tribal laws, we seek direction from our hereditary chiefs, our elders, and we communicate this on paper. From there, we have a process of going to our community membership, the community itself.
In this situation, we will definitely not isolate the present non-status people, who in most of our opinions, should be registered. as status. We will leave that door open for their participation.
Mr. Chartier: I would just like to say, from what I have heard today and from knowing the people of British Columbia—at least yourself, anyway, and other people I have run into—I have the greatest confidence that will take place. Thank you.
The Chairman: Are there any further questions?
Mr. Pootlass, with respect to your requests on page 19 of your submission about tabling the three parts of this position paper in the House of Commons before the Section 37 conference, I just want to point out the Minutes of Proceedings and Evidence today are automatically circulated to all members of Parliament. The result of that isprecisely the same as tabling, so the members of the government and all members of Parliament will receive all these documents by that means.
With respect to the second point, the distribution of the position paper to all our indigenous aboriginal governments, thespecial committee has already ordered that all bands and Indian organizations in Canada, on a regular basis, receive the same document; that is, the Minutes of Proceedings and Evidence. So you can take it that those two requests will be acted upon.
I want to thank the Bella Coola District Council for the considerable amount of work and thought that went into the preparation of this document and for appearing before the special committee today, answering our questions and helping us in the work the Parliament of Canada has given to us. Thank you very much.
Yes, Mr. Pootlass.
Chief Pootlass: Thank you, Mr. Chairman. I appreciate the opportunity for us, the Bella Coola District Council, to participate in the definition of our future.
Referring to page 19 and your final comments, Mr. Chairman, what we are requesting is that this special committee present our paper with some recommendations before the House; and hopefully, we will receive a response. That is the intention of the committee. I realize that it will be in Hansard, but I am certain, and I am speaking on behalf of the council, we would like the committee to review our presentation and make recommendations to the House.
The Chairman: I can respond to that very quickly. Our terms of reference from the Parliament of Canada order us to report not later than the first Monday following Labour Day of this year. We will be working furiously to meet that deadline. We have a tremendous amount of travelling to do, a great deal of thinking and writing to do, discussing and debating to do, and we will be working long hours in order to meet the deadline of September. I can assure you right now, so you will not be under any illusions, there will be no recommendations made from this subcommittee to Parliament before March I5 or 16. Itjust would not be possible. The evidence we haeve received so far is available to anyone who is interested in Parliament or in the government, but in terms of us drawing certain conclusions from all the evidence we will be receiving, that part of our work will come a little bit later on this year.
Ms Jamieson: Mr. Chairman, I wonder, can we not undertake to deliver this with a covering letter, at the very least?
The Chairman: Deliver it to whom, Ms Jamieson?
Ms Jamieson: I think they are asking for it to be delivered to the Prime Minister and to other members of Parliament.
The Chairman: As I pointed out, everything that was said today by the witness, plus the accompanying papers, appear in the Minutes of Proceedings and Evidence and are automatically distributed to all members of Parliament, including the Prime Minister, all the Cabinet ministers, including the deputy minister and the assistant deputy ministers in the department. It is the same thing as if we took this document and tabled it in Parliament. It has exactly the same results. Tabling simply means that you distribute a document. That has already been done. That is done automatically.
I think Mr. Manly was quite correct, and if the Bella Coola Tribal Council wants to get a direct response from the Prime Minister then they should take the initiative themselves, draft a covering letter and send it to the Prime Minister. That would be an initiative they would take on themselves, and it is their right and privilege to do that. In terms of this committee, I think what they have done has been helpful to us. Their evidence will be carefully considered when we make our report, but I think we can do no more in terms of bringing this document to the attention of anyone in particular.
Mr. Allmand: Mr. Chairman, in answer to the Bella Coola people, we should tell them that before the Section 37 conference some of us will be addressing our respective caucuses. . . for example in our caucus, the Prime Minister and the Cabinet—for a consensus of what we heard from the witnesses. There may also be an opportunity in Parliament to make statements or debate the issues of the conference before the conference. We do not know yet because we are not in full control of Parliament, but there will be ways in which we will hope to put forward what we have learned and heard during the last two or three months before the conference.
However, what I would hope to do is to take a consensus of the various briefs. Today alone we are hearing six briefs; yesterday we heard three; tomorrow we are hearing another six and some more the day after. But there are underlying themes which are going through them all and which are pretty consistent. While we will not be presenting a report to Parliament, that would be too complicated, we will certainly be conveying many of the points you have in your brief because they are repeated over and over. Otherwise, all this information we are gathering would be maybe lost .or conveyed too late. So there are ways in which we would do this, different ways, in Parliament, outside of Parliament, in caucuses and so on, and we have already been doing that. We have all been doing that in different ways.
The Chairman: Thank you Mr. Allmand. Any further comments? Mr. Pootlass.
Chief Pootlass: Mr. Chairman, I would like to again extend my appreciation to the special committee on hearing our views on lndian self-determination, Indian self-government. In parting, I would like to register our request to go before the standing committee on hearing some of our grievances and some of our situations we are facing today in our home communities. We extend to you an invitation to come and visit one of our member communities through these proceedings. Thank you.
The Chairman: We thank you very much for bringing that to our attention. I would indicate to you that the clerk of this special committee is also the clerk of the standing committee. He has made a note of your request that you be heard before the standing committee, and when the work of that committee begins we will certainly give every consideration to meeting again with the Bella Coola District Council.
Are there any further comments? If there are none, before members rise I would just ask that they hold their seats for a few minutes because there has been a request for a brief photo session. If you will co-operate with that, we will do that. Then we will adjourn for a few minutes, and we will call next the Sechelt Indian Band for their presentation on a proposed Indian band government act.
Chief Pootlass: Chief Ed Moody would like to say a final note in our presentation. Chief.
Chief Edward Moody (Nuxalk Band, Bella Coola District Council): Thank you, Archie, and thank you, Mr. Chairman, for allowing me to speak on the question that we had in our minds about your making recommendations to Parliament or to the Prime Minister.
I do not want to leave any doubts in my mind about what is going to happen in the future, and one of the reasons why I wanted to speak on it is that there are two deadlines here. One is your deadline for making your, I guess, final submission at the end of September, and the Section 37 conference which is on March 15 and 16. One of the reasons why we wanted some of your recommendations to go before the Prime Minister or Parliament is that I do not want to hear at the Section 37 conference that there was no mention of aboriginal rights and title because you have heard our presentation today and that is the way it will stand. Thank you.
The Chairman: I believe the photos have now been taken. Oh no, they are still being taken. Just wait one more minute.
All right, we will recess for five minutes.
The Chairman: Members of the committee, the next appearance before us is the Sechelt Indian Band Council. They have prepared a document on a proposed Indian band government act. Leading the Sechelt Band delegation is Chief Calvin Craigan, and I would now call upon Chief Craigan to introduce the other members of the delegation and then to advise the members of the committee how he wishes to proceed in the time that is available to us.
Chief Calvin Craigan (Sechelt Indian Band Council): Thank you, Mr. Chairman. This is the delegation from the Sechelt lndian Band and the leadership of the Sechelt Band. I will not
go into any more detail other than that. As we go along, you will become familiar with each individual, so we will not waste any more time. What we have here today is something new and exciting and innovative, and with that I would like to get right into it.
You have probably heard a lot about the Sechelt Band. We have pioneered in many areas of Indian development. Even now, we are the only band in Canada to have been delegated every possible authority under the Indian Act. You will find that all departmental and independent reviews of what we are doing are highly favourable. But we must move forward; our people demand it. We cannot wait for the federal government to come up with new legislation that will suit all Indians. In fact, this cannot be done in such a huge, diverse country- individual band concerns must be provided for.
Mr. Chairman, we have an important proposal for you. We propose enabling legislation that will allow bands, at their option, to opt out of the Indian Act and go under a different administration. You each have a copy of our draft for this enabling legislation. It was prepared by our band lawyer in consultation as to its form with the legislative counsel section of the federal Justice department, and our band commends to your attention our great appreciation of the co-operation we have received from the Assistant Deputy Minister of Justice and his staff.
The enabling legislation can be enacted promptly, because it has no immediate consequences. What it does is enable a band that has had its proposed constitution or charter approved by a federal order in council to be governed by that charter, and not the Indian Act, as soon as transitional arrangements satisfactory to the Minister of Indian Affairs have been agreed upon. The beauty of this is that it does not impact in any way upon the Indian people who do not want new legislation, and yet, it allows the bands who do want new legislation to develop their own tailor-made band governments. And surely this is the entire point of what this special committee is trying to achieve.
What types of things will be dealt with in these proposed charters? Well, you each have already received a copy of our proposed Sechelt Indian Band Act. This was prepared at a time when we had grave doubts about the federal commitment to legislative change. We saw no alternative but to go it alone. Now we are more hopeful, and happily our draft act will lend itself perfectly to transformation into the first band charter in Canada.
There are four major items in our proposed band charter:
1. Control over band membership: We know who the Sechelt Indian people are; nobody else does. There should be total band control over band membership.
2. Title to reserve lands: 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 reason for clinging to this title any longer.
3. Payment of Income Taxes: We do not consider it fair that Sechelt Indians working on reserve are tax exempt, while those working off pay all taxes. We should all be treated equally. Therefore, we propose a scheme for all Sechelt Indians to enter the Canadian income tax system equally on a phased basis.
4. Local Government: The present governmental chaos on reserves must end. We propose the establishment of full local government, similar in powers and structures to a B.C. municipality, but established under federal legislation.
Implementation of all of this would leave us free of the Department of Indian Affairs and in control of our own destiny, but still enjoying the aboriginal and constitutional rights of indigenous people. Can we not get you excited about what this means? We can do it. The situation of Indian people in Canada can be transformed by this special committee; and we know it will work.
Thank you, Mr. Chairman. That is our proposal here today in front of you. If there are any questions from the hon. members, please feel free to ask any one of my band council.
The Chairman: Thank you very much, Chief Craigan. Are there additional comments from any other members of your delegation at this time? If not, we will proceed with questioning. Mr. Schellenberger, would you like to begin, please.
Mr. Schellenberger: Thank you very much for your presentation and the proposed act.
As you know, when we had the minister before us about three or four months ago now, he outlined that the department had proposed an act that would run beside the Indian Act, and that bands, if they wished, could participate in that act by signing a type of a constitution.
Did you monitor that situation, and is your proposal similar in the sense that it would stand beside the Indian Act, or did I read you correctly when you said you want to opt out entirely?
Chief Craigan: Exactly. We want to opt out of the Indian Act altogether.
The hypothetical piece of legislation the minister has said they were formulating was not open for viewing. As a matter of fact, he voiced it as top secret and no one had any access to
it. So this piece of legislation you see in front of you—and the one that was presented to you previously—is one that the band has formed to suit the Sechelt Indian people alone.
Mr. Schellenberger: Then are you saying you would then only receive the same services as ordinary citizens of Canada do, or are you saying by opting out you would still wish to receive certain services from the federal government as an aboriginal right?
Chief Craigan: Yes, naturally we would accept all the regular services still offered by the government. It would be redundant for us to concede those.
Mr. Schellenberger: So the mechanism in this act would allow you to administer those services that are now provided by the federal government as an Indian nation or a self- government process, and if we followed this act in this sense right across Canada it would create 500 and some local governments that would be responding to services as individuals.
Chief Craigan: I cannot speak for the other 575 bands. They would have to choose at their own time whenever they wanted to make that decision and make that transition.
Mr. Schellenberger: I noticed in your tour proposals the one regarding title over reserve lands. You are recommending, then, that the trust responsibility be terminated by the minister and that that trust be put entirely in the hands of the chief and council and membership.
Chief Craigan: Exactly.
The Chairman: Thank you, Mr. Schellenberger. Mr. Allmand next, please.
Mr. Allmand: Thank you, Mr. Chairman.
This of course is a very interesting proposal; very specific. I have only two questions about it, since, as I say, it is very clear and straightforward.
One question is the following. The draft bill you present to us makes it discretionary on the part of the minister to approve or not to approve the request by the band and the charter that the band will prepare and submit, which seems to me. . . by the way, I think the concept of your bill is very good, and the conditions on which you feel a band should have the right to exercise its own authority are excellent too, but I am wondering why, having advanced to the stage where you can do this, you would then say to the minister, here we have done all this, this is the charter the band has approved, we have carried on our administration for two years; we have done all these things—and still you give the minister the right to say no. In Clause 4.(1)(a) it says “Where . . . the Minister is satisfied . . .” And in 4.(1)(c) it says:
. . . the band has prepared and submitted to the Minister a constitution for the band (hereinafter referred to as the “Charter”) and the Minister has approved . . .
I am wondering if you had considered the following. You could have Clause 4 so it would read that where in respect of a particular band: (1) the band administration has the ability to
plan, implement—and all those same conditions; but it would become automatic if you fulfilled the conditions in (1), (2), and (3).
I ask this because in the hearings we have had with Indian associations and groups across the country, they have complained sometimes about the lack of rationale in the use of discretionary powers by the minister. Obviously in a bill like this the minister will be taking the advice of civil servants. Some band may go and present their charter and the minister will refer it, as ministers usually do, as they have thousands of things to do, to civil servants, and they may say to Band A, yes, we will approve your charter and you can operate under the charter; and they may say to Band B, no, you cannot, maybe for some political reasons or hidden agenda.
I guess the basis of my question is would you not prefer, or have you considered this, that once you fulfil the conditions, it should be given of right rather than remain within the discretion of the minister? In other words, if you fulfil the conditions, then you get the charter approved, and the minister has no say about it. I am not saying that you should do that; I am just wondering if you had considered that. That struck me right away when I read that the minister had the right to say yes or no.
Chief Craigan: I think that responsibility the minister has should not be maintained, to a certain extent. We are not saying we want total sovereignty. I think it is provided for within our proposed act that the minister has some discretionary decisions.
Legally, I think our band lawyer can expand on that. I will refer the question to our band lawyer.
Mr. Graham Allen (Band Legal Adviser): Thank you, Chief.
Mr. Allmand, we recognize that this will be a bilateral process and there will have to be a band vote on the charter, and we also recognize that by some means or another the federal government will want to have some say in how the constitution is formulated. When we are talking about taking title to lands, entry into the income tax system, these kinds of issues have such enormous ramifications for this country that we have assumed the federal government will definitely want some kind of control over that occurring. In our collective wisdom it seemed to us the minister might be the required person to make those kinds of evaluations. Certainly somebody is going to have to make them.
If it is not to be the minister. . . and I hear what you say with some pleasure, because maybe it would be better if it were not the minister—we certainly realize it would have to be somebody who would be specified in this legislation; some
person or some office holder or perhaps some panel specially constituted for this type of reason. So we recognize it need not be the minister, but we would put it back to you that there would have to be some objective process for evaluation.
Mr. Allmand: May I.ask if in preparing this draft bill you looked at or borrowed ideas from the American Indian Self- Determination Act of I believe it was 1975 or 1976? They have a bill which applies to the tribes in the United States, in which the tribes can through legislation do things similar to what you are suggesting here. Did you look at theirs as a model in any way?
Mr. Allen: You have it correctly, Mr. Allmand. We are innovative, but not totally original.
Mr. Allmand: So you did consult with the Americans.
Mr. Allen: Yes, we did.
Mr. Allmand: We recently went down to try to get some ideas in the United States, and we talked to some tribes, but not that many. What is your experience with American tribes who have worked under this kind of legislation? Have they felt it is an improvement and helpful to them?
Mr. Gilbert Joe (Chairman, Indian Local Government Committee, Sechelt Indian Band Council): Thank you.
I feel that the American Indian people have a lot of flexibility similar to this application. One of the paranoias we have is that the American Indians had so much flexibility that they had the authority with the titles of their lands to be able to sell, similar to freehold lands and so on and so forth, and eventually lost all their reserve lands under that situation. We certainly do not want to jeopardize our situation here as the Sechelt Band. Our land is worth more than money, the way we see it, and we want to protect that.
Mr. Allmand: My final question, Mr. Chairman, is whether the Sechelt Band have discussed this proposal with other bands in British Columbia or in the country, and what other bands’ reactions would be. Under this piece of legislation, any band could take advantage of it, not just the Sechelt. I know that the Sechelt have been trying for years to get legislation that would give them authority to do some of the things that they feel they should do, but could they tell the committee whether they have had an opportunity to discuss this with other bands? If they have not, since we are travelling throughout the country consulting with Indian bands like we are today—in a few weeks we will be going to Saskatchewan and then we are coming back to British Columbia and we will be going to other places—would you like us to ask other Indian associations what they thought of this particular proposed bill?
Mr. G. Joe: As you know, the presentations that were made before the subcommittee for the standing committee were all looking for alternatives to the Indian Act. Every band wants something other than the present Indian Act to have some form of legal entity where they can have situations where they can contract with units of local government, whether they are provincial or federal. All bands want this kind of alternative.
We of the Sechelt Indian Band made our approach as an individual band, and this enabling legislation will give an opening to the 575 bands across the country. But we are certainly open to any band—we always have been in the past—to sit down and show them our approach and our proposals.
Mr. Allinand: Thank you very much.
Councillor Stanley Earl Joe (Sechelt Indian Band Council): Further to that, in the two years that have passed, we have formed a special committee with the regional director and certain persons in DIA here in B.C. to work along with the Sechelt Indian Band to come up with something like this package.
When we first started, we presented the Sechelt Indian Band act that you all remember, and that is the meat of this proposed charter that we are now presenting to you. In the last six months the special committee that we had to formulate this with our consultants and the regional director and some of his people was changed to the whole council of the Sechelt Indian Band. We have had approximately two workshops a month with our band membership in the last, say, nine months to come down to the nitty-gritty of this package, like the four points that we mentioned, that Cal read in his opening statement.
Councillor Benedict Pierre (Sechelt Indian Band Council): Mr. Chairman, I would like to add also to this proposed Indian band government act. This has been the first distribution to the committee here, and no one has ever seen this document, in line with what our consultants and our band council have done.
Mr. Allmand: As the chairman pointed out to the previous group that was here, the Bella Coola Band, everything that is said here today will go into a public record like Hansard and will be distributed to all members of Parliament.
Mr. Chairman, are we going to make this proposed bill part of the record? I think we should.
The Chairman: I am happy that you raised that, Mr. Allmand, because the proposed bill has not been read. Therefore, if we wish to have it as part of today’s record, if there was a motion on the part of the committee to have it
appended, that could be done. Would that be the wish of the witnesses?
A Witness: Yes, exactly.
Mr. Allmand: I so move.
The Chairman: Okay, it has been moved by Mr. Allmand that the proposed Indian band government act presented by the Sechelt Indian Band be appended to today’s Minutes of Proceedings and Evidence. Is that agreed?
Motion agreed to.
The Chairman: Mr. Allmand, do you have further questions?
Mr. Allmand: Yes. I was going to say that from this day on it will be, probably, a subject of discussion as we go about because it is a very specific and straightforward proposal. I am sure other bands will be commenting on it because all the proceedings of our committee are sent to associations and tribal councils and bands. We will be getting views on it so we mayhbe back to you about it in due course. Thank you very much.
A Witness: Okay, Mr. Chairman, I will read it.
The Chairman: It is not necessary.
A Witness: Oh, okay.
The Chairman: It is now an appendix to today’s Minutes of Proceedings and Evidence.
Thank you, Mr. Allmand. The next questioner will be Mr. Jim Manly.
Mr. Manly: Thank you, Mr. Chairman. I would like to thank Chief Craigan and the members from the Sechelt Band for their presentation. I think all members of the committee are aware of the long years of work that the Sechelt Band has done on this, and we commend you for your initiative.
I have a couple of questions regarding the proposed legislation. In your introductory remarks you said that one of the principles that you wanted was total band control of membership. Yet I see Clause 2, Interpretations, where you say that in this act band, council of the band, elector, Indian and minister have the same meaning as in the Indian Act. As I read that, that would mean that all of the sections of the Indian Act referring to membership would apply to this new legislation and that that would not give you control over band membership. I wonder if you could answer that question.
Mr. Allen: Thank you, Chief.
I must really clarify the distinction here, Mr. Chairman, between the proposed band government act and the Sechelt Band act. They are entirely distinct.
This proposed band government act that has now been appended to today’s proceedings is really enabling legislation that would allow bands to develop their own constitutions. At that point, the Sechelt Band government act would be
suggested as something that might work as a constitution for a band.
Mr. Manly’s point can be explained very easily. In the enabling legislation, the definitions are exactly that for the present time. For the band votes on the charter, the Indian Act definitions would apply. However, once the charter or constitution was developed, the definitions that prevailed within that constitution would be binding upon the band concerned. In other words, they could develop their own definitions once they had been enabled to develop their own constitution.
So there are two distinct steps that have to occur before a band could become autonomous under this process.
Mr. Manly: Thank you very much. That explains the situation. This is simply an interim definition, then, that for the purposes of any process taken in developing a charter the definition of “Indian” as it applies in the Indian Act would apply. Is that what you are saying?
Mr. Allen: That is exactly it, Mr. Manly.
Mr. Manly: Thank you. That helps.
My second concern relates to some kind of financing formula. Under the present system where Indian bands accept responsibility for delivering programs to their own people they often, as you know, experience a great deal of frustration with the department in terms of getting adequate financing. We have heard stories about arbitrary cuts in budgets and bands not getting moneys that had been promised, and so on. Under the present situation, the government retains responsibility for providing certain basic services to Indian people. In this legislation, I do not see any kind of financing formula that would give the bands that opted for this new system any guarantee that the government would provide continuing financing. On the other hand, once they had gone under this enabling legislation would they still have the back-up of the government, so that if they did not have adequate funds they could say to the government: Look, it is your responsibility to deliver these services; you are not giving us the funding; it is your problem, you handle it? Could you give us some help on what I see is a problem here?
Chief Craigan: Yes, Mr. Chairman, it is a frustration that all bands have been experiencing in cashflow and unilateral cutbacks in terms of the various programs provided to the bands. We have devised a formula, and I will ask our financial adviser to expand on that. Mr. Gordon Anderson.
Mr. Gordon Anderson (Financial Adviser, Sechelt Indian Band Council): Mr. Manly, in June, 1982, the Sechelt Indian Band distributed to all members of the standing committee the proposed Sechelt Indian band act. Today we have introduced the band government act, which is the enabling legislation that would allow this document to be the band charter or constitution. That document spells out the continuing relationship with the federal Crown as far as the transfer of funds to the band
for carrying out services is concerned. It is a detailed formula, it requires detailed accountability and is based on what has already been negotiated with additional amounts for such things’ as medical premiums, master tuition payments and other identifiable programs that are now paid directly by the federal government on behalf of the Sechelt Indians. If you are going to have autonomy in finance, you must have access to all the funds so that you can directly negotiate, as a legal entity, with the other agencies and other governments that you may have contractual requirements for.
Mr. Manly: I can appreciate that in the act you have those provisions and that in any charter you would want to develop you would have some provision. My concern is that there is nothing in this enabling legislation that guarantees that there would have to be any provision such as that. So it is conceivable that some band could enter into this enabling legislation with less than adequate financial guarantees. Is that not a possibility?
Mr. Anderson: Mr. Manly, I would point out that one of the triggering and protecting mechanisms in the enabling legislation is that if the charter of the band, or the constitution of the band, did not contain adequate financial arrangements with thefederal’ Crown, I highly suspect that the Indian bands, in voting on it, would not pass the constitution. Therefore, the constitution will be initiated by the Indian band itself and will obviously contain the details of the financing. That detail, once passed by the federal government and recognized by the federal government, will become a binding obligation upon the federal government to provide that funding.
Mr. Manly: Thank you very much for your answers and thank you for your submission.
Thank you, Mr. Chairman.
The Chairman: Thank you, Mr. Manly.
Roberta Jamieson, please.
Ms. Jamieson: Thank you, Mr. Chairman.
Some of the areas I was going to question on have already been covered by my colleagues. However, I do have just a few questions.
One is, do you see this act as an interim act for the Sechelt Band? And are you looking, in the future, to what comes out of such other processes as the constitutional discussions to move yet further along the road of Indian government?
Chief Craigan: No, we do not. We see this as enabling the Sechelt Indian people to develop their own act that suits their purposes, so that they can progress in every program that is available to them and every program that is being hindered by the present Indian Act now.
Mr. S. Joe: Excuse me. This act does not hinder the constitutional talks, or anything like that. This act enables us to carry on while these things go on—aboriginal rights and
constitutional talks. Until all that is done, we just do not want to sit back and wait.
Ms. Jamieson: That is what I was asking. This is something that will meet the realities of today . . .
Mr. S. Joe: Right.
Ms Jamieson: —for the Sechelt Band.
Mr. S. Joe: Right.
Ms Jamieson: But if something in the future were negotiated between the First Nations and the federal government and other governments that would provide additional room for the Sechelt Band, you would take advantage of that as well. Is that right?
Mr. S. Joe: Right. Yes, I think we would take advantage of that and support that. We have gone as far as we can now under the existing Indian Act.
Ms Jamieson: One other area I wanted to follow up, which Mr. Allmand questioned on, is this: In the U.S. I, too, noticed that there might be some similarity between this act and the Indian Self-Determination Act. One of the complaints we heard from some of the tribes down there was, if you leave the discretion to a minister or a secretary of the interior to reject or accept your charter, they have found that if you did not write the charter the way they wanted you to, you did not get any money. Are you concerned about that? I mean, you either do it the way the minister wants or it does not fly. Maybe you have some sense already of whether or not it is acceptable to the minister or the department. Maybe you could speak to that.
Mr. S. Joe: Just on. . . when we first met the minister and what his reactions were and now the way the minister talks to bands and what he is hinting at is . .. What we are trying to prove is that we are not out to form a third government. The federal government and provincial government have enough hassles right now without our forming another government . . . but anything that comes about that is to our advantage in what we have in this piece of paper in front of you, we will take, gladly.
Ms Jamieson: In your discussions with the people in the U.S., then, obviously you are not worried about that part.
There is another area I wanted to ask you about: In the opening remarks, the chief referredto the fact that Sechelt is not willing to wait for the federal government to come up with some act that is going to satisfy every Indian in Canada and that there is a need for flexibility and every band to go its own individual way. Why, then, would you suggest a band government act that looks like a piece of federal legislation, instead of calling it an Indian Sechelt Band government act?
Chief Craigan: If there is a development within the department developing companion legislation, or whatever term he
has for it, if it is workable with other bands and if it is workable with our legislation, I think we can negotiate and come to some sort of compromise in terms of having this a part of that.
Ms Jamieson: I understood that at one time the Sechelt Band was pursuing a Sechelt band act and that that would not fly. Maybe my facts are not straight, but I know you said that this act fit Sechelt alone at this moment. Do you not think it would be acceptable? Again, in the United States the tribes pass an act that only applies to one tribe. Have you considered one act for the Sechelt band alone, or does that not look as though it would be acceptable?
Mr. G. Joe: The Sechelt band charter is for the Sechelt band only. The enabling legislation proposal is for all bands across the country to opt into, whether they so choose or not. In reality, we really want to get into a situation where we become self-sufficient as a band and enjoy the legal entities and contractual situations that municipalities and other units of local governments enjoy today. If we can get the titles to the land transferred to the band level, we would certainly have a lot of flexibility then to go ahead and start processing some of our natural resources. This would put us in a profitable situation where we are an asset to our band membership and also to the country as a whole. You will see our natural resources being processed and spinning off into the whole marketing world. I can just imagine a spin-off in the form of taxes and employment that everybody else will enjoy.
These are the kinds of things that we are looking for in our Sechelt band charter. And the only way we can get our Sechelt band charter into action is for the subcommittee of the standing committee to do something on our behalf to get this proposal of the enabling legislation into the forefront. Whether it is through the minister or whether it is through the House of Commons, give us the tools so we can do it ourselves.
Chief Craigan: I think the question goes farther and I think I will ask our solicitor to expand on it.
Mr. Allen: For about six or eight months, we did, as this committee knows, promote very strongly the idea of an individual act for the Sechelt Indian Band. But we understand from the Minister of lndian Affairs that there is no prospect whatsoever of that being enacted for one Indian band and that is why we abandoned that effort in favour of trying to produce something of a more general scope.
Ms Jamieson: Do you understand from the minister that there is a prospect of an act like this going anywhere?
Mr. Allen: This has never been discussed with the Minister of Indian Affairs. As the chief said earlier, this is the first public presentation of this document and nobody has seen this other than this committee, to date.
Ms Jamieson: I see. I have one last question, Mr. Chairman, and that is this. I understand the band wants to take over title to their lands. I also understood you to say that you want to maintain some kind of a special relationship with the Minister of Indian Affairs or with the… My question is this: Is that accurate? Did I understand that correctly? Do you still want to maintain a special relationship with the minister or with the federal government and, at the same time, take over title to your lands? For instance, in the services area.
Mr. G. Joe: We have always been paranoic about the jurisdictional situation that we have come under. When the federal government, through the Department of Indian Affairs, proposed the white paper policy in the past that they would decentralize the Department of Indian Affairs to the provincial government, that scared the heck out of us. We do not want to get into a jurisdictional situation where a government changes every four years or whatever. That kind of thing is scary. So we would like to actually opt out of the Indian Act but still maintain a jurisdictional situation with the federal government.
Ms Jamieson: Thank you very much.
The Chairman: Thank you, Roberta. Mr. Oberle did you have some questions?
Mr. Oberle: Yes, Mr. Chairman, I do. I would like to go back for a moment to the Sechelt federal district proposal of 1982. You are saying now that this is the legislation that will enable you to implement the structure that was proposed in the 1982 paper. Are you telling me that none of the concepts and principles embraced in that 1982 paper have been abandoned? You wish to implement that structure.
Mr. Anderson: If we can get that in place through the Parliament of Canada this will become the first constitution word-for-word.
Mr. Oberle: I see. It was said that this is as far as you can go under the present Indian Act. If I recall the 1982 paper—I have a summary here but I have not had a chance to go through it all. But, if that were put in place and the big book became your charter, the Indian Act would be redundant. So what you are telling me is that you want to scrap the Indian Act. Is that right?
Mr. Anderson: As far as the Sechelt is concerned, yes.
Mr. Oberle: Okay.
Mr. G. Joe: We have had approaches to decentralization of some of the sections of the act in the past, mainly Section 53.(1), “to manage and control surrendered lands within reserve parameters.” And Section 60, “to manage and control all other lands, other than surrendered lands.” Section 69, “to collect our own revenues from our lessees and to establish our own financial structure.” Those are the kinds of things that took place within the Sechelt Indian Band and other approaches with the provincial government. We had amendments to the Home Acquisition Act and Land Registry Act and the Schools Act. So we have benefited from some of these decentralizations of authority. But that is as far as we can go
with the present Indian Act and this is one of the reasons why we are enabling to strive further, to have the flexibility to be able to adopt a charter for our band that gives us more of an entity, so we can contract with other bodies to be more self- sufficient.
Mr. Oberle: Coming from British Columbia, I am not surprised that this new idea should come from here. All great new ideas, particularly if they are innovative, come from British Columbia. We will give you citizenship when we separate.
What I want to know though is this: How how much of this idea is embraced in the proposals that the minister has laid before us, in his bill leading to Indian self-government? Have you studied it? Are they your ideas or Fred Walchli’s ideas?
Mr. G. Joe: You are talking about the minister. The Ottawa level administration always approached us in the past for issues like companion legislation, white paper policy and band charter systems. It was similar to what happened here today; there were consultations with Indians across the country, and I administrative procedures. Nothing ever happened to them. So we are hoping that this approach from the band, which is aggressive and determined, that we are going to get it. Whether we can get it through this subcommittee for the standing committee… we will carry on and make other approaches.
Mr. Chairman, I would like to ask a question on the procedures of this standing committee. Say that hypothetically the standing committee was to support our proposal for the enabling legislation for us to get into the Sechelt Band charter. What is the usual procedure? Does that then go to the standing committee or do you go directly to the House of Commons to adopt something of this nature?
Mr. Oberle: We will be making our report directly to the House of Commons, and we will be making a public report. So under the present status of this committee there is no requirement to report to the standing committee. Our mandate is derived from the House of Commons, and we will be reporting to it. But, with respect, you did not answer my question.
Mr. S. Joe: As to your question, as I was saying before, we got hold of Fred Walkley and his people, whoever would deal with us. Fred Walkley finally came around, reluctantly, and we finally formed the committee that would work with the Sechelt Indian Band. I remember one time specifically where Fred Walkley read a draft we had drafted out and we had about a two-hour meeting. His word was “wow!”.
Mr. Oberle: I see a direct relationship between what you are proposing and what the minister is proposing. It is a form of municipal government. The difference here would be that, according to your 1982 paper, you are not just establishing a government but you are also assuming that the land held in trust for the people of Sechelt will be transferred to the jurisdiction of the band and you will enter into all kinds of arrangements. You assume that certain provincial grants will be made to the band. I see a lot of similarities between the powers you wish to assume and the British Columbia Municipal Act. Having been the mayor of a town, I see all these similarities. I do not think that is wrong; that is a healthy situation. But this is just crucially important and terribly interesting to us because it gives us a very clear and concise . . .
Mr. Anderson: Mr. Oberle, I will try to give you a very clear and concise answer to that question. The companion legislation that we have determined is the major issue for the federal government, and their last campaign called for the right of the band to manage and control its own land. It did not advocate transfer of title. Sechelt advocates the title transfer to the band, and there is one unique difference between ourselves and the proposal by the feds. It is not illogical that people who are trying to do something to improve the autonomy position of a band will reach logical and similar conclusions if they have been involved with the Indian process long enough.
As far as Mr. Walkley’s contribution to the act, I submit that he provided the money to enable the meetings and the travel to take place, and sat and listened to our proposals, but beyond that had no direct writing of this document. This comes from Sechelt.
Mr. Oberle: Why would British Columbia make transfers to you, grants and transfers? I mean, you are under a federal charter; you own your own land. Would you raise provincial taxes on the reserve?
Mr. Anderson: We would have to enter into contractual relationship with the provincial government for them to vacate the property tax field on the reserve to allow the band to assume that particular position. So what we visualize with the band becoming a legal entity, with the SIFD being the legal entity, is that contractual relationships with other governments could be put into place. That was primarily what was envisaged.
As far as patterning it after a British Columbia municipality, you must realize the unique nature of Sechelt is that it is surrounded by British Columbia municipalities. If you are going to deal in the contractual sense with them, it makes good sense to us that the rules and conditions would be similar so that they would understand what we were operating under, as well as what they were operating under, and it would allow a smoother contractual base.
Mr. S. Joe: The council would become the Sechelt lndian federal district.
Mr. Oberle: I understand that. Now, you will be operating under a federal charter as a federal district. Supposing you find that it would be more convenient, more advantageous, to contract a particular service with the province, even though under the federal charter the federal government would be responsible to supply services. Let us say education: would it permit you to enter into a contract with the province to provide you with the educational infrastructure and the curriculum to run your education program instead of the federal program? Could you pick and choose? Say the welfare program, child welfare, or whatever.
Mr. S. Joe: We may not pick and choose, but we sure as hell would negotiate.
Mr. Oberle: You would want to remain flexible and decide which ‘service is more advantageous and better suited for your ownsituation, and you would enter into contracts with the province.
Chief Craigan: Actually, we would have to negotiate a lot of those aspects with the provincial government. As a matter of fact, we have been doing a bit of negotiating in getting their feeling for the Sechelt Indian Band taking over a lot of those authorities. We went a step further and discussed some of the aspects of the grant proposals. It is hypothetical at this time, but the problem is right now. We have a letter here from the Department of the Attorney-General supporting the Sechelt Indian Band act, and if I can read it out it will give you an idea of the kind of negotiations and support that is coming from the province. It is addressed to the Sechelt Indian Band Council:
I thank you for your letter of July 21, together with a copy of the proposed Sechelt Band Act. I am advised by my officials that a meeting is to be held September 16 with Federal and Provincial representatives to discuss this and other local government matters.
The fact that the Sechelt Band is taking the initiative in this matter is of great interest to me and I have asked to be kept informed of developments in the hope that we may see real progress in this area.
Mr. Oberle: Okay. Let me for just a moment develop the hypothesis that all bands in Canada would embrace this enlightened approach and in seven years from now we have a complete new structure operating under a federal charter. It would mean the end of Indian Affairs, of course. The Minister of Indian Affairs would be replaced by a minister of federal municipalities or federal districts and all the land, the trust accounts, would have been transferred to the federal districts. Am I correct so far? Okay. Let me go further then. You now have the title to all the land and the resources. Would it be held communally or would it a private title? Would it be passed on to individuals?
Mr. G. Joe: One of the fortunate situations we have always been concerned with throughout the years is that we have very, very few CPs on our reserve. So the answer to your question is that anything in that regard will be in common.
Mr. Oberle: It would be held in common. Would there be something in your charter that would prevent you from selling land at any time?
Chief Craigan: Yes, there is a provision in our charter that protects all the lands held in common by the Sechelt Indian Band members. On anything this council decides in terms of selling or leasing land for long-term purposes or fee simple, there would have to be a 75% vote in favour of proceeding in that aspect. So it has been provided within our act that there is protection there.
Mr. Oberle: How about your relationship to any financial institutions? How would you manage your debt financing? You could not mortgage the land. Would you permit individual band members to mortgage, say, a lease? Would you give him a lease and permit him to mortgage that, so he can raise capital on his improvements?
Chief Craigan: I do not think we would allow individuals to take a mortgage on their persons or property allocated for residential use only.
Mr. Oberle: Excuse me. You would permit private ownership of improvements; in other words, the individuals would not own the land, but they could own the house on it.
Chief Craigan: By band council resolution, the council would allocate them a lot for the use of residential purposes only. They would own the house but not the land it sits on.
Mr. Oberle: So he or she could mortgage the lease, and the improvements on the lease could be used as security to attain financing.
Chief Craigan: That is happening now with non-band members. It has been a long struggle to establish that with local financial outlets. If you want me to expand any further on the financial aspects of how that came about, then I would have to turn it over to our financial adviser.
Mr. Oberle: What about commercial enterprises? Would they be handled in the same way? Did you say you would not lease land for any commercial enterprise?
Chief Craigan: Oh no, we would certainly lease it out for commercial, industrial or for whatever purpose that was permissible under some of the by-laws we would have to formulate.
Mr. Oberle: Would the federal district undertake any commercial ventures?
Chief Craigan: Not, in a sense, without council approval. They can make recommendations; but again. that proposal for any kind of developmentwland development or whatever—has to have the consensus of the entire band membership.
Mr. Oberle: Could you explain to me the difference between the Sechelt Indian Federal District Commission and the band council? There is provision for two in the paper. What would their functions be?
Chief Craigan: There are two different entities that serve the purpose and benefit the membership. The Sechelt Band Council deals with the entire band affairs. The Sechelt Indian Federal District deals with commercial aspects within the governmental structure of the band.
Mr. Oberle: They are both elected. One is elected every two years, the other every three years; is that right?
Chief Craigan: The other would be appointed.
Mr. Oberle: Which one would be appointed, the commission?
Chief Craigan: Sechelt Indian Federal District.
Mr. Oberle: It would be appointed by the band council.
Chief Craigan: That is right.
Mr. Oberle: I see.
Mr. Allen: Mr. Oberle, if I could just clarify that, the local services commission would be elected; and the distinction is that the band council be elected from the band electors, whereas the local services commission will be elected at large, with one person appointed for every two hundred electors on reserve. So that would mostly end up with a non-Indian and Indian body being elected, a combined body.
Mr. Oberle: Finally, Mr. Chairman, this is terribly interesting and important. I really think the members would want to familiarize themselves, if they are not already, with the paper tabled in 1982, because both of them have to be considered together. I wonder if it would not be wise for us to carry on this dialogue with this particular group at some other time, because it gives us a complete model of something we might or might not wish to consider further.
If we express the desire to meet with you again, I would hope you would make yourselves available, you or any of your experts. I certainly would want to continue this dialogue, not necessarily tonight or in this particular forum; but I would like to ask some more questions of individuals, of your advisers.
In conclusion, let me just ask one more question. To what extent are you presently working with the regional office, with Mr. Walchli and/or any federal officials, in advancing this idea? Do you have their support and commitment?
Chief Craigan: Yes, we still are. The committee still exists; and part of that committee is Mr. Walchli and his adviser, along with the members of the council. They are entirely in support of what Sechelt is endeavouring.
Mr. Oberle: Thank you very much.
Mr. Allen: Mr. Chairman, could I just make one comment by way of a general response to Mr. Oberle’s questions? In 1981, there was a tripartite committee established in this province with Indian representation, departmental representation and provincial government people. It produced this report, and many of the issues raised by Mr. Oberle have been dealt with by this tripartite report. So could I commend to the committee’s attention a reading of this report? It deals with many of the problems, such as taxation, servicing and all the rest of it.
The Chairman: Thank you. Thank you, Mr. Oberle.
The next questioner is Sandra Isaac. Sandra.
Ms Isaac: Thank you, Mr. Chairman. I have just one question.
What provisions are presently made for those women who have lost status and wish to return to the reserve?
Chief Craigan: I will ask our professional member of council to answer that. Anne Quinn.
Councillor Anne Quinn (Sechelt Band): For those who have lost their status? As of a certain date, we say all our people will be entitled to be registered. We have never discriminated against our people who have lost their status. We have never recognized it at all.
The Chairman: Mr. Schellenberger, you had another question, I think.
Mr. Schellenherger: Perhaps my question is answered in the document you referred to. Very few people who are not presently paying taxes would want to come under the taxation system. I am wondering why you recommend that you come under the taxation powers. Would you come under both federal and provincial taxation powers or only federal? If you are operating as a group, in what way would you operate the taxation powers of a municipality? For property taxes, would you ask for those powers as well? Would you operate under those systems?
Mr. Allen: Mr. Chairman, the rationale for what is called voluntary phasing into the income tax system is that, at present, one body of Sechelt Indians pays income taxes and the other body does not. The distinction seems quite arbitrary. Those who work on the reserve do not pay, and those who go off the reserve every day do pay.
What the Sechelt Band says in its proposed act or charter is that all Sechelt Indians should be treated equally; and I must stress it is only in the absence of a constitutional provision that would make all Indians tax exempt equally. Only in the absence of that do the Sechelt Indians propose voluntary entry on a phased basis into the income tax system for all Sechelt Indians equally.
It is not completely altruistic. It means a number of Sechelt Indians who now pay income tax would immediately stop
paying income tax, and would then start paying low percentages that would gradually accumulate over the 50-year period. So it would work out equally for all Sechelt Indians. But going back to a point raised by Ms Jamieson earlier, if there were constitutional benefits accruing to Indian people over and beyond that, such as complete exemption, the Sechelt Band would be protected and would be entitled to that constitutional exemption.
Ms Jamieson: You know, of course, that the fear among many Indian bands is that by accepting what they say would be half a loaf now, one is prejudicing what might ultimately result to be the benefit. Do you have any views on that, or are you at the stage, now, where you are absolutely frustrated with what is there and you want to get on with reality? What is your view?
Mr. Allen: I think the very wording of that provision makes it clear what the Sechelt position is, and it is only in the absence of constitutional provisions that would allow the exemption that the Sechelt Band is proposing this phase-in scheme. So, in a way, perhaps it is an act of some frustration that equality right now is probably the guiding principle for Sechelt. Perhaps that will be changed, maybe this year at the constitutional discussions.
The Chairman: Further questions? None? Seeing no further questions, then, I would say that certainly the Sechelt Band have provided us with a very interesting, innovative and exciting proposal. I want to be on the side of Mr. Oberle. . .
Mr. Oberle: It is the best side to be on.
The Chairman:—to a certain extent, when he says that I hope that we will have another opportunity to discuss this with you. I think that members of the committee will have to give it a great deal of thought—and I know, now that it is a public document, there will be a lot of reaction to it—and if you would be willing, I think we would like to have you meet with with us again some time in the post—Easter period and have a further discussion about the implications of this proposal. It is very exciting and very interesting and we thank you for the kind of leadership that you are giving in an extremely difficult area.
Chief Craigan: Thank you, Mr. Chairman. I think it probably would be agreeable to the council that we meet again and go into some depth in terms of the constraints that we propose. Hopefully, it will be in the very near future. As you know, we are very impatient and we are going to stick in there like a thorn in your backside and keep plugging away until we get support from, hopefully, this committee. With that, Mr. Chairman, we thank you for your patience and your time. Hopefully we have sparked some sort of interest that will initiate some sort of interest back at the House. Thank you.
The Chairman: Thank you very much, Chief. We do look forward to meeting with you again before we table our report in September.
Mr. G. Joe: Mr. Chairman, can I have a final word? Just because of the importance of this whole process, I do believe
that everyone in the standing committee or all the MPs in Ottawa have a copy of the tripartite local government committee report. I think it would be a part of the package. If you would make sure that all of you have a copy it would be a great asset to the whole approach to this enabling legislation and the charter, plus this local government tripartite committee report.
The Chairman: Very good.
Mr. G. Joe: With that in mind, I imagine, Mr. Chairman, you would be making contact with us for future consultations.
Mr. Oberle: I move it to be tabled, Mr. Chairman.
The Chairman: I want to be clear, Mr. Oberle, are you suggesting that it just be circulated among the members or are you asking that it be . . .
Mr. Oberle: No. I think it should be appended.
The Chairman: Members have heard the request of Mr. Oberle that the report of the tripartite local government committee respecting Indian local government in British Columbia dated August, 1981 be appended to today’s Minutes of Proceedings and Evidence.
Mr. S. Joe: Mr. Oberle, if you would come to Sechelt and were to lease a residential lot from the Sechelt Indian Band, you would then become a district elector, giving you the right to elect members of the local services commission, making you an advisory body to council for planning local services and improvements and hear petitions from the district electors, but the one thing you will never get is the right to vote for a chief in council.
Mr. Oberle: Could I start a political organization? An opposition party?
The Chairman: Mr. Oberle, if I may break into the conversation, I am advised by the clerk that since this is a fairly lengthy document, appending it would delay the printing of today’s Minutes of Proceedings and Evidence by quite a period of time. He is suggesting to me that members of the committee might like to file this as an exhibit. It is therefore listed in the Minutes of Proceedings and Evidence and is readily available to anyone on request. Would that be acceptable to you, Mr. Oberle?
Mr. Oberle: Yes, it would be, particularly since all the members have a copy of it already. Yes, indeed.
The Chairman: All right. So then the motion for Mr. Oberle is that it be filed as an exhibit in today’s Minutes of Proceedings and Evidence. Is that agreed?
Motion agreed to.
The Chairman: It is so ordered.
I also want to bring to the attention of members that there was another request. Ms Diane Hansen has prepared a
document on native wildlife management and she has asked that it be distributed to members. I have instructed the clerk to do that. I just want to draw that to your attention. It is just for information.
Again, I want to thank the members of the Sechelt Band for appearing. Thank you for your important contribution to the work of this special committee, and I repeat, we do look forward to seeing you again. Thank you very much.
Chief Craigan: Thank you, Mr. Chairman. I am sure you will. Our invitation for you to come to Sechelt is still open, by the way.
The Chairman: Before members depart, I would like to remind them that this meeting is adjourned until 2:30 tomorrow afternoon in Prince Rupert.
Also I would want to remind members that while they have the evening free, they are expected to board the bus at 7:00 o’olock tomorrow morning.
The meeting is adjourned.
INDIGENOUS ABORIGINAL GOVERNMENTS AS THE FIRST ORDER OF GOVERNMENT IN CANADA
To Be Submitted To:
Special Committee on Indian Self-Government
Standing Committee on
Indian and Northern Affairs
Bella Coola District Council
Box 700, Bella Coola, B.C.
February , 1983
1. HISTORICAL PERSPECTIVES:
a) Settlement of Canada: Crown Obligations to our Indian Nations
b) “The Sacred Trust of Civilization”
2. CANADIAN GOVERNMENT POLICY TOWARDS INDIGENOUS ABORIGINAL NATIONS.
1. HISTORIAL PERSPECTIVES:
(a) Settlement of Canada: Crown Obligations to our Indian Nations
Like so many of our Indigenous Brothers and Sisters the world over, our Nations have suffered the onslaught of self- serving European Nations asserting their domain over our People and our territory. Yet, in their attempts to acquire our land, first British and later Canadian colonizers, became subject and bound to respect agreements and obligations negotiated with us or forced upon the Crown. We rely upon these agreements and obligations in asserting our position to Canada today: that our Aboriginal Title and Rights must be respected in all of your dealings with us.
Canada was formed, not in 1867, but with the compacts concluded between the Crown and our Indian Nations. The first major compact was the Royal Proclamation of 1763. George III issued this Proclamation, formalizing political relations between the Crown and our Indian Nations on terms that satisfied the Indians and permitted settlement of Canada. The Proclamation itself was a statement of policy which had been developing for many years before 1763. But political urgency was generated by events which occurred in Canada during and immediately following the seven Years War. During that war, the British and the French fought one another for supremacy in Canada. our Indian Nations, for the most part, sided with the British because representatives of.the British Crown repeatedly told the Indian Nations that the British Crown would give them protection against the French who had designs on Indian lands. When the war concluded, the British refused to remove their outposts from Indian territory and the Indian Nations moved against the British. The great campaign was led by Chief Pontiac. Between 1761 and 1763 seven of the ten British outposts were destroyed by the Indian fighters. The
Bitish Crown felt the pressure to conclude a Constitutional arrangement acceptable to the Indian Nations. The Royal Proclamation of 1763 was the result.
The terms of the Royal Proclamation itself were negotiated with the Indian Nations concerned. By its terms, a general prohibition was placed on the settlement of unceded Indian lands, until the lands were yielded up to the Crown through the consent of our Indian Nations. The Royal Proclamation, in effect, recognized and confirmed the sovereignty of our Indian Nations. The Indians were described as “Nations” and it was only through a vote by our Nations in Assembly that our rights could be conferred on to the Crown. Similarly, land rights were recognized since our lands had to be “purchased” by the Crown. As a result of the Royal Proclamation, dealing in Indian land was placed beyond the authority of colonial governors.
Operating within the framework of the Royal Proclamation, treaties were concluded betweeen various Indian Nations and the Crown. These treaties recognized the sovereignty of our Indian Nations as it was only with the consent of Indian Nations in assembly that they were concluded. The provisions of these treaties implicitly recognized the ongoing existence of Aboriginal title and rights. These treaties were designed as fundamental instruments which would endure the passing of time and governments. The durability of the agreements was articulated by the Crown’s representatives:
The Queen has to think of what will come long after
today. Therefore the promises we have to make to you
are not to today only but for tonorrow, not only for
you but for your children born and unborn and the
promises we make will he carried out as long as the
sun shines and the rivers flow in the ocean.
As a result of these compacts, the Provincial and Federal Governments of Canada were able to consolidate power
and authority under the British North America Act. An example of this is the petition of Marie Joseph Philebot to the Executive Council of Quebec on December 21, 1766, for a grant of 20,000 acres of land in the colony of Quebec. This land had not been ceded by the Indians pursuant to the Royal Proclamation; the land was not granted.
The Committee having taken the sane into consideration
are of the opinion the Lands so pray to be assigned are,
or are claimed to be the property of the Indians, and as
such by His Majesty’s command as set forth in the
Proclamation of 1763, not within their power to grant:
the Committee are further of the Opinion that they are
restrained by His Majesty’s said Order fron granting
lands but upon the Conditions therein contained. The
same rule applied as various territories joined
Confederation between 1867-1871.
In summary, Canada was formed ON THE BASIS of Crown obligations to the Indian Nations, obligations which recognized our sovereign rights and which stated clearly that the Aboriginal title and authority of Indian Nations would continue until they consented to surrendering their title and powers to the Crown.
In British Columbia we have never surrendered our title or any of our sovereign powers to the Crown. We continue to cherish our fundamental rights which have been recognized and confirmed by the Crown in its dealings with us. we ask for a proper process to clarify how we, as Nations, can profitably, comfortably, and honourably co-exist with Canada, while retaining our sovereign rights bestowed upon us by the Creator.
(b) Sacred Trust of Nations
The rules which bind the Crown in its dealings with
us derive in part, from international law and convention. The “sacred trust of nations” is one such rule. We, as indigenous aboriginal Nations, refer to the “sacred trust” imposed upon Britain and Canada in asserting our position that our Aboriginal title and rights must be recognized and respected.
In the 18th century, the international law principle of the “sacred trust of civilization” was developed. In the League of Nations this principle was manifested in the mandate system, under which colonial territories were said to be administered “in trust for the people” under the control of a mandatory power.
However, the principle of the “sacred trust of civilization” did not have its origins in the League of Nations and the mandate system. The principle can be traced to Francisco De Vitoria (16th Century) and the era of the Spanish colonization of the new world. Most importantly, the principle defines the obligation of conquering powers to treat indigenous Peoples in a way which promotes their well-being and allows their self-determination.
The Berlin Conference of 1884-85 provides testimony to the tacit agreement of the Euorpean powers to this sacred trust. In November 1884 the European powers, including Great Britain, assembled in Berlin for a conference to discuss problems relating to the affairs of the African continent. The purpose was to avoid inter-European anarchy in the exploration of Africa. In the course of discussions it was made clear that the normal method of acquisition of territory by European powers was bilateral treaty and not discovery or unilateral occupation. Africa was not presumed to be “vacant territory” but a region ruled by a complex of political entities governed by sovereign rulers and Chiefs.
Debates at this conference concerned various conceptions in international law, the classic one being the Rule of Law of Nations, according to which the transfer of territory from original inhabitants to new rulers was only to be done by consent. This consent was sacrosanct. As was stated by John Kasson, the U.S. delegate:
Modern international law steadily follows the road
which leads to the recognition of the right of native
races. . .to dispose freely of themselves and of their
hereditary soil. . .a principle looking to the voluntary
consent of the natives of whose country possession was
taken (by treaty) in all cases when they may not have
provoked the act of aggression.
While this declaration ultimately was not ratified by the Berlin Conference, the principle of voluntary consent was “at least tacitly accepted by the conference”.
These statements concerning modern international law and indigenous aboriginal Peoples did not apply to Africa alone. indeed, indigenous aboriginal law “originated, and can still be most clearly grasped, as a branch of international law”.
Forty seven years prior to the Berlin Conference, in 1837, a Select Committee was appointed by the House of Commons to consider the measures to be adopted with regard to the native inhabitants of British – claimed territories. The Select Committee’s report was published on June 26, 1837. On the basis of national interest (even narrowly conceived) and on the basis of morality, no encroachments on the territory or disregard of the rights of indigenous aboriginal Peoples were to be allowed. General regulations were set out in the report. The protection of the indigenous aboriginal Peoples was considered a duty:
Peculiarly belonging and appropriate to the executive
government, as “administered either in this country
(Great Britain) or by the governors of their respective
colonies. This is not a trust which could conveniently
be confided to the local legislatures.
The obvious conflict of interest between the claims of the indigenous aboriginal Peoples and the local legislatures was acknowledged, and “whatever may be the legislative system of any colony, we therefore advise that, as far as possible, the aborigines be withdrawn from its control”. No law which affected the original inhabitants would take effect against them unless expressly sanctioned by the Queen. Any acquisition of property from the original inhabitants by Her Majesty’s subjects was declared illegal and void. The report also commented on the inherent inequality in the bargaining positions with respect to treaties between the Crown and our indigenous aboriginal Peoples.
Turning to the international covenants of the United Nations, we again find numerous references to the sacred obligation of Nations, references, we submit, which enshrine the trust defined prior to British colonization in Canada.
In the Charter of the United Nations (recognized by both Canada and Great Britain) Chapter XI contains the “Declaration Regarding Non-Self Governing Territories“. This chapter provides that the members of the United Nations:
Accept as a sacred trust the obligation to promote to
the utmost, within the system of international peace
and security established by the present charter, the
well-being of the inhabitants of territories whose
people have not yet attained a full measure of
(A) To assure, with due respect for the culture of the
peoples concerned, their political, ecmonic, social
and educational advancement, their just treatment and
their protection against abuses;
(B) To develcp self-government, to take due account
of the political apirations or the peoples and to
assist than in the progressive development of their
free circumstances of each territory and its peoples
and their varying stages of development.
Similar provisions are contained in Chapter XII, which established the international trusteeship system.
In the Universal Declaration of Human Rights (adopted by both the United Kingdom and Canada) Article 17 states:
(2) no one shall be arbitrarily deprived of his property.
The Declaration of the Granting of Independence to Colonial Countries and Peogles was adopted by the United Nations General Assembly in Resolution 1514 (XV) December 14, 1960.
This declaration affirms that:
The peoples may, for their own ends, freely dispose of
their natural wealth and resources without prejudice to
any obligations arising out of international economic
cooperation, based upon the principle of mutual benefit
and international law.
Therefore, it is declared that:
2. All peoples have the right to self-determination.
By virtue of that right they freely determine their
political status and freely pursue their econonic, social
and cultural development.
Furthermore, the declaration states that repressive measures of all kinds directed against dependent peoples shall cease. This covenant clearly seeks to protect the territorial integrity of the peoples whose self-determination is recognized.
The International Covenant on Economics, Social and Cultural Rights in Article 1 also affirms that all people have the right of self-determination. The ability of all people to freely dispose of their wealth and resources is also confirmed. Canada and the United Kingdom ratifies this convenant as of May 19, 1976.
Article XII states:
That the populations concerned shall not be removed
without their free consent from their habitual
territories except in accordance with national law and
regulations for reasons relating to national security,
or in the interest of national economic development
or of the health of the said populations. When in such
case removal of those populations is necessary as an
exceptional measure, they shall he provided with lands
occupied by then, suitable to provide for their present
needs and future development.
It is interesting to note that the Canadian representative at the conference questioned the competence of the organization to consider these questions and abstained on the final vote.
In 1957, the International Labour Organization adopted a Convention Concerning the Protection and Integration of Indigenous and other Tribal Semi-Tribal Populations in Independent Countries. Article XI of the Convention states:
The right of ownership, collective or individual, of
the members of the population concerned over the lands
which those populations traditionally occupy shall be
In the South-West African Cases, Ethopia and Liberia commenced an action against South Africa for breach of obligations connected with its mandatory powers. while the International Court of Justice dismissed their claim, in doing so it specifically recognized the “sacred trust of civilization”.
The sacred trust, it is said, is a “sacred trust of
civilization.” Hence, all civilized Nations have an
interest in seeing that it is caried out. An interest,
no doubt; but in order that this interest may take on a
specifically legal character, the sacred trust itself
must be or become something more than a moral or
It is impossible to maintain, in light of the inter- national commitments outlined above, that the mandate system is the only judicial expression of the sacred trust of civilization. The sacred trust was incorporated into and elaborated by Great Britain’s colonial policies towards the Indians in the country now called Canada. The Royal Proclamation of 1763, treaty making, the special relationship between the Indigenous Aboriginal Peoples and the British Crown, are manifestations of a pre-existing sacred trust. As a member of the international community, Canada is bound to conduct its afifairs in keeping with this trust.
International law has as its ultimate function the preservation of the rights of the inhabitants of one political cammunity against the encroachments of another political comunity. The key is equity. All treaty arrangements and settlements must proceed on the basis of equitable assumptions.
International law, humanity and equity demand that Canada conclude a convenant with our Indigenous Aboriginal Nations, one which respects and recognizes our aboriginal title and rights.
2. CANADIAN GOVERNMENT POLICY TOWARDS INDIGENOUS ABORIGINAL NATIONS
On a visit to British Columbia in 1876 the Earl of Dufferin, Governor General of Canada, summarized the position of the Crown with respect to our Indigenous Aboriginal Peoples as follows:
. . .no government, whether Provincial or Central, has
failed to acknowledge that the original title to the
land existed in the Indian Tribes and communities which
have hunted or wandered over before we touch
an acre we make a treaty with the Chiefs representing
the Bands we are dealing with, having agreed upon and
paid the stipulated price…we enter into possession.
In spite of the Policy expressed by the Earl of Dufferin, and in spite of Crown obligations and its sacred trust, the Canadian Government’s goal has been to deny the sovereignty of our Indigenous Aboriginal Nations and bring them fully under the domination of federal and provincial governments. This goal of Canadian Government Indian Policy has remained consistent for over one hundred years.
In 1947 a plan for liquidating Canada’s Indian problem within 25 years was presented to the Parliamentary Joint Committee on Indian Affairs. The objective was:
To abolish, gradually but rapidly, the separate political
and social status of the Indians (and Eskimos): to
enfranchise them and merge them into the rest of the
population on the equal footing. The realization of this
(A) Improve the Indians’ social and economic position,
now so depressed as to create “Leprous” spots in many
parts of the country;
(B) Abolish the permanent drain on the Federal Treasury
of the millions of dollars yearly now spent on Indian
(C) Fulfill the almost forgotten pledge of the Government
when it adopted the system of confining the Indians
to special Reserves. The Plan contemplated the appointment
of a Commission to study the various Indian
Reservations throughout the Dominion and to advise on
the best means of abolishing them, of enfranchising the
In 1969 Prime Minister Trudeau and Indian Affairs Minister Jean Chretien presented their White Paper Policy. The Policy called for the elimination of Indigenous Aboriginal
Peoples and Indigenous Aboriginal Nation Tribal lands. Its main features were as follows:
(A) The Constitution would be amended, eliminating all
references to Indians.
(B) The Indian Act, which guarantees a number of specific
rights, would be repealed.
(C) The Department of Indian Affairs and its special
budgetary appropriation for Indians would disappear.
(D) Indian Reserves would lose their protected status.
(E) Full jurisdictional powers over Indians would be transferred to Provinces.
By 1973 our Indigenous Aboriginal Nations had prevented Prime Minister Trudeau from implementing the white Paper Policy. our method was concerted political action and forcing the issue of Aboriginal Title and Rights through the courts in the Case of Calder v. The Attorney General, (1973 4W.W.R.l. In spite of the setback, the Canadian Government’s goal remained constant. But it was not until the Constitution debate that the politics were ripe for a renewed approach. The Canadian Government’s real agenda for the 1982 Constitutional debate with respect to our Indigenous Aboriginal Nations was stated by Indian Affairs Minister Jean Chretien in 1969:
The tradition of Federal responsibility for Indian
matters inhibited the development of proper relationship
between the Provinces and the Indian peoples as citizens.
The ultimate aim of removing the specific references to
Indians from the Constitution may take some time, but it
is a goal to be kept constantly in view.
In the long term, removal of the reference in the
Constitution would be necessary to end the legal
destinction between Indians and other Canadians.
Why has the Canadian Government been so dtermined to achieve this goal? The ultimate objective is legalizing
the acquisition of Indigenous Aboriginal Nations’ Lands and resources, over which our Aboriginal Title and Rights continue to run. This point was illustrated during the Pipeline Debate in 1977. when the Canadian Government voiced its support for the Alcan Pipeline, the question arose of interference with development by the claims of Indigenous Aboriginal Peoples. A Canadian Government Internal Policy Document of November 20, 1977 reveals that Indian title would not be allowed to stand in the way of development:
A few things are clear. The Goverrment of Canada is
prepared to extinguish Native Land Claims if necessary
by Legislation to support its international wokr and
In a confidential document prepared after October 1980, Briefing Material on Canada’s Native Peoples and the Constitution, the Canadian Government’s position on Indigenous Aboriginal Nations and the Constitution was unambiguously set out:
There is likely to be a major effort by Canada’ Native
Peoples to win National and International support
(especially at Westminister) for their stand against
patriation. If the Native Peoples press forward with
their plans and if they succeed in gaining support and
sympathy abroad, Canada’s image will suffer considerably,
because Canada’s Native Peoples live, as a rule, in
conditions which are very different from those of most
other Canadians – as sample statistics set out below
attest – there would be serious questions asked about
whether the Native Peoples enjoy basic rights in
– Indians have a life expectancy ten years less than
the Canadian average.
– Indians experience violent deaths at more than three
times the National average.
– Approximately 60% of Indians in Canada receive social
– Only 32% of working age Indians are employed.
– Less than 50% of Indian Homes are properly serviced.
– In Canada as a whole, the Prison Population is about
9% Native, yet Native Peoples make up only 3% of Canada’s
population. In 1977, there were 280 Indians in jail per
100,000 population, compared to 40 of the National
The strategy of the Canadian Government was made clear, namely to promote formal discussion with the Indigenous Aboriginal Nations after patriation, knowing full well that to do so would preclude an effective settling of the issues. The offer of post-patriation discussion would be used as the reason why constitutional participation was unnecessary.
Native leaders realize that entrenching their rights
will be enormously difficult after patriation, especially
since a majority of the Provinces would have to agree
to changes which might benefit Native Peoples at the
expense of the Provincial power. They therefore demand
an entrenchment of Native Rights before patriation.”
On the question of entrenching rights in the Charter of Rights the document had this to say:
Constitutionalizing Treaty Rights, for example, which
many Indian Leaders have called for, begs the question
of how Treaty Rights should be interpreted. Additionally
to constitutionalize treaty rights does nothing for the
vast majority of Native Peoples in Canada, who either have
not been party to Treaties or who have excluded themselves
from the groups which did sign treaties.
In summary, from the Canadian Government’s view the Indigenous Aboriginal Nations were to have no direct participation in Constitutional patriation. Rather, discussion with the leaders would be left to a post-patriation meeting where Indigenous Aboriginal Nations would face ten Provincial Governments and the Canadian Government, each jealously guarding their newly divided jurisdiction. on the question of entrenchment, the Canadian Government would entrench only
those rights which were politically required while preparing to exclude Aboriginal Title and Rights from the Constitution generally. This approach can be seen in the successive drafts of the Canada Bill and the Charter of Rights in which the clause safeguarding Aboriginal and Treaty Rights appeared and disappeared from draft to draft. The most dramatic event occurred in November 1981, when the Canadian Government decided to remove the Aboriginal and Treaty Clause in order to gain a broader provincial accord.
The constitutional debate showed Canada’s real goal towards our Aboriginal Peoples, which is ultimately to expropriate our land. Throughout the debate our Indigenous Aboriginal Nations demonstrated our true goals. Even after patriation we asserted in Canada, in Britain and throughout the European canmunity, through Parliaments, through the Courts and through assemblies of people, that we, the Indigenous Aboriginal Peoples, do not consent to a Canadian Constitution which denies us our basic aboriginal title and rights. We are our land and we are our Governments. The Canadian Government cannot change this fact through a man- made law which they call a Constitution which does not recognize our existence as it is in this country.
INDIGENOUS ABORIGINAL GOVERNMENTS AS
THE FIRST ORDER OF GOVERNMENT IN CANADA
MAIN POINTS OF DIFFERENCE
THE MINISTER OF INDIAN AFFAIRS
THE BELLA COOLA DISTRICT COUNCIL
MAIN POINTS OF DIFFERENCE
MINISTERS OF INDIAN AFFAIRS
1. Sources of Authority:
-Parliament of Canada as the
ultimate source of power.
2. Constitutional Relationships/ Status:
-Two orders of government,
federal and provincial;
-Band governments established
by the Indian Act.
3. Government Institutions:
-“Indian Band Governments” as
instruments of DIA administration;
-Operate within framework of
Canadian political institutions.
4. Jurisdiction of “Indian Band Governments”:
-Will be decided by DIA/Canadian
Government but process unspecified;
-Similar to limited powers of
“local government” (municipal).
-No increase in reserve
land base anticipated.
6. Political Process:
-Devolution of band
powers controlled by
-Optional band participation
under expanded legislation;
-Need to demontrate “ability
to manage own affairs”.
-Dual accountability to
bands and the Canadian
PROPOSED INDIAN BAND GOVERNMENT ACT
SECHELT INDIAN BAND FEBRUARY 1983
An Act to enable Indian Bands, at their
option, to establish effective local
government of their own communities and
Her Majesty, by and with the advice and
consent of the Senate and House of
Commons of Canada, enacts as follows:
1. This Act may be cited as the Indian Band Government Act.
2. (1) in this act, “band”, “council of the band”, “elector”, “Indian” and “Minister” have the same meaning as in the Indian Act.
(2) This Act does not affect the constitutional rights or treaty and aboriginal rights, whether existing or future, of any Indian.
3. The purposes of this Act are
(a) to meet the expressed wish of bands for
legislation that will enable them to establish
effective local governments,
(b) to provide for the control and administration
by bands of the programs and services
available to them, and
(c) to enhance the development of the Indians
4. (1) Where, in respect of a particular band.
(a) the Minister is satisfied
(i) that the band administration has the
ability to plan, implement and monitor
the delivery of the programs and
services available to the band,
(ii) that an effective structure and system
of band administration services,
including financial planning and
monitoring, has been in operation for at least
two years, and
(iii) that the band, from a review of its
annual audits, maintains acceptable
(b) the band has, for at least two years,
exercised every power that can be delegated to
it under the Indian Act,
(c) the band has prepared and submitted to the
Minister a constitution for the band (herein-
after referred to as the “Charter”) and the
Minister has approved the Charter, and
(d) the Charter approved by the Minister has been
subsequently approved by a majority of the
electors of the band in a vote conducted in
accordance with the Indian Referendum Regulations,
the Governor in Council may by order declare that, in respect of that band,
(e) the Charter has the force of law and the
Indian Act ceases to apply.
(2) An order of the Governor in Council referred
to in subsection (1) shall come into force on a
date to be fixed by the Minister pursuant to sub-
(1) Forthwith after the Governor in Council has
made an order under subsection 4(1), the Minister
and the council of the band referred to in the
order shall enter into negotiations for an orderly
transition to band government under the Charter.
(2) When the Minister is satisfied that adequate
arrangements for the transition referred to in sub-
section (1) have been completed, he shall by order
fix a date for the coming into force of the order
of the Governor in Council referred to in subsection 4(1).
6. The Charter of a band may at any time be amended by
order of the Governor in Council where the proposed
amendment has first been approved
(a) by a majority of the electors of that band
in a vote conducted in accordance with the
(b) by the Minister.
From the Union of British Columbia Indian Chiefs:
Chief Bob Manuel.
Chief Gerald Etiene.
Chief Sail Terry.
From the Musqueam Indian Band:
Chief Ernie Campbell.
Mr. Jim Reynolds, Lawyer.
Mr. Marvin Storrow, Laywer.
Mr. Andrew Charles, Band Member.
From the 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.
From the Bella Coola District Council:
Mr. Archie Pootlass, Chairman.
Chief Lawrence Pootlass, Hereditary Chief.
Chief Edward Moody, Nuxalk Band.
From the Sechelt Indian Band Council:
Chief Calvin Craigan.
Mr. Graham Joe, Chairman of Indian Local Government Committee.
Councillor Stanley Earl Joe.
Councillor Benedict Pierre.
Mr. Gordon Anderson, Band Financial Advisor.
Councillor Anne Quinn.