Procès-verbaux et témoignages du Comité spécial sur L’autonomie politique des Indiens, 32e parl, 1re sess, nº 40 (12 octobre 1983).


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Date: 1983-10-12
Par: Canada (Parlement)
Citation: Canada, Parlement, Procès-verbaux et témoignages du Comité spécial sur l’autonomie politique des Indiens, 32e parl, 1re sess, nº 40 (12 octobre 1983).
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Hz Il IHI‘ ()l“ COMMUNS
03.1″‘. N0. 40

\\ s tlntïätiàl)’, OCÎOÜGI‘ l2, 1983
Hum wtlJy, October 20,

c. Irmmzm: Mr. Keith Penner

CHAMBRE DES COMMUNES
Fascicule n° 40

Le mercredi 12 octobre 1983
Le jeudi 20 octobre 1983

Président: M. Keith Penner

x/uiu/ins (i/‘Proceedings
«i z/iw fljwvial Committee on

I ndian
Self-Government

Procès- verbaux

du Comité spécial sur

L’Autonomie politique
des Indiens

I’! .‘*»;l’lî( TING:

lln‘ ‘slulus, development and responsibilities of band
i-«xxæi nments on lndian reserves, as well as the financial
i. hunnships between the Government of Canada and
lruimn hzinds

Vit I HUING:

l ili’ Hi-«gund Report t0 the House.

CONCEIRNANT:

Le statut, Févolution et les responsabilités des adminis-
trations de bandes dans les réserves indiennes, de même
que les rapports financiers qui existent entre le gouver-
nement du Canada et les bandes indiennes

Y COMPRIS:

Le deuxième rapport à la Chambre.

l l! .l .i’n’.‘x.’iltlll Ui‘ the
Hmta mumd Parliament, 1980-81-82-83

Première session de la
trente-deuxième législature, 1980-1981-1982-1983

SPECIAL COMMITTEE ON COMITÉ SPÉCIAL SUR

lNDlAN SELF—GOVERNMENT UAUTONOMIE POLITIQUE DES INDIENS
Chairman: Mr. Keith Penner Président: M. Keith Penner

Vice-Chairman: Mr. Stan Schellenberger Vice-président: M. Stan Schellenberger

Messrs Messieurs

Allmand Manly Oberle Tousignant
Chénier

(Quorum 4)

Le greffier du Comité spécial
François Prégent

Clerk ofthe Spécial Committee

Pursuant to Standing Order 69(4)(b): Conformément à l’article 69(4)(b) du Règlement:
On Wednesday, October 12, 1983: Le mercredi 12 octobre 1983:

John McDermid replaced Frank Oberle. John McDermid remplaceFrank Oberle.
On Thursday, October l3, 1983: Le jeudi 13 octobre 1983:

Frank Oberle replaced John McDermid. Frank Oberle remplace John McDermid.
Photo Credits:

Canadian Government Photo Centre, National Film Board of Canada
Department of lndian Affairs and Northern Development
Department of National Health and Welfare

Mrs. Eva Manly

Mrs. Ethel Pearson

Mrs. Barbara Reynolds

Published under authority of the Speaker of the House of Commons by the Publié en conformité de Fautorité du Président de la Chambre des commun. —.
Queen’s Printer for Canada par Flmprimeur de la Reine pour le Canada

Available from the Canadian Government Publishing Center, Supply and En vente: Centre d’édition du gouvernement du Canada, Approvisionncmciur. .a
Services Canada, Ottawa, Canada KlA 0S9 Services Canada, Ottawa, Canada KlA OS9

MEMBERS OF THE SPECIAL COMMITTEE
ON INDIAN SELF -GOVERNMENT

Mr, Keith Penner, Libr
Cochrane—Superior (Ontario)
(CHAIRMAN)

.4“

Mr. Stan Schellenberger. P.C.
Wetaskiwin (Alberta)
(VICE-CHAIRMAN) (Québec)

Honourable Warre Allmad. Lib.
Notre-Dame-de-Grâce-Lachine East

Mr. Raymond Chénier. Lib.
Timmins——Chapleau (Ontario)

Mr. Frank Oberle, P.C.
Prince-George——Peace River (B.C.)

Ms. Roberta Jamieson
Ex o/fïriu member
Assembly of First Nations

Ms, Sandra lsaac, Liaison member
Native Womens Association
of Canada

lll

Mr. Jim Maly, N.D.P.
Cowichan——Malahat——
The lslands (B.C.)

Mr. Henri Tousignant, Lib.
Témiscamingue (Québec)

Mr. Bill Wilson. Liaison member
Native Council 0l‘ Canada

ORDERS OF REFERENCE

Special Committee on lndian
Self-Government (Task Force)

HOUSE OF COMMONS
Wednesday, December 22, 1982

.ORDERED,——That a Special Committee of the House of Commons, to be composed of
Mr. Penner, Mr. Allmand, Mr. Chénier, Mr. Tousignant, Mr. Oberle, Mr. Schellenberger
and Mr. Manly be appointed to act as a Parliamentary Task Force on lndian Self-Govern-
ment to review a11 legal and related institutional factors affecting the status, development
and responsibilities of Band Governments on lndian reserves, including, without limiting the

gcnerality of the foregoing:

(a)
(b)
(C)

(d)

(e)

(f)

(g)

the legal status of Band Governments;
the accountability of band councils to band members;

the powers of the Minister of lndian Affairs and Northern Development in relation
to reserve land, band monies and the exercise of band powers;

the financial transfer, control and accounting mechanisms in place between bands
and the Government of Canada;

the législative powers of bands and their relationship t0 the powers of other juris-
dictions;

the accountability to Parliament of the Minister of lndian Affairs and Northern

Development for the monies expended by or on behalf of lndian bands;

all items referred to in section “H” of the report of the Sub-committee on lndian
Women and the lndian Act;

and make recommendations in relation to the above questions in regard particularly to possi-
ble provisions of new législation and improved administrative arrangements to apply to some
or all Band Governments on réserves, taking into account the various social, economic,
administrative, political and démographie situations of lndian bands, and the views of lndian

bandsin

regard to administrative or legal change.

That the Committee, in carrying out its review, take into account:

(a)

(b)

(c)
(d)

the jurisdiction of the Federal Government under section 91(24) of the Constitu-
tion Art, I867;

the recognition and affirmation of existing aboriginal and treaty rights of the
aboriginal peoples in section 35 of the Constitution Art, I982;

the current economic restraint program of the Government;

the fact that a First Ministers’ Conférence will be held for the purpose of identify-
ing rights of the aboriginal peoples.

That thé Committee have all of the powers given to Standing Committees by section (8)
of Standing Order 65;

That thé Committee have thé power to retain thé services of expert, professional, techni-
cal and clerical staff as may bé deemed nécéssary;

That the Committee have thé power to adjourn or travel from placé to placé in Canada
and thé United States;

That, notwithstanding thé usual practices of this House, if thé House is not sitting whén
an intérim or final report of thé Committee is completed, thé Committee may make thé said
report public before it is laid before thé House, but that, in any casé thé Committee shall
report to thé House finally no later than thé first Monday following Labour Day;

That all thé évidence adduced by both thé Sub-committee on lndian Women and thé
lndian Act, and thé Sub-committee on lndian Self-Government during thé first Session of
this Parliament, bé réferréd to thé Committee;

Providéd that altérnatés appointed pursuant to témporary Standing Ordérs bé naméd
later.

A TTES’ T

C.B. KOESTER
Thé Clerk of the House of Commons

Monday, Séptémbér 12, 1983

ORDERED,———That thé présent mandaté of thé Special Committee on lndian Self-Gov-
ernment bé exténdéd to thé énd of thé current session.

ATTEST

C.B. KOESTER
Thé Clerk of the House of Commons

vi

Section H of the report of the Sub-eontmiltee on lndian Women and the lndian Aet (as
referred to in section (g) of the Special Committees Order of Référence):

H. AREAS FOR FURTHER STUDY

Your sub-committéé has made note of sévéral aréas which require further study and
which should be considéréd by the second sub-committéé or otherwise given attention:

1) that the élimination of the entire concept of enfranchisement bé studiéd further;

2) that an Office of the Aboriginal Rights Commissioner to protect the recognition oi‘
spécial rights of aboriginal peoples in Canada be considéréd for a function analogous
t0 thé Commissioner of Official Languages;

3) that the lndian Aet be reviewed so as to reinforce group rights and to bring the Act
in line with international covénants;

4) that traditional practices such as marriages, adoptions, etc., not be restricted or dis-
criminated against by the lndian Acl;

5) that discrimination in the Act against men, and against children be examined; .

6) that a formula and process be devised for provision to lndian communities of la ne‘

and resources for persons added to band lists as the) result of the removzil of discri ni

nation clauses from the lndian Act;

7) that a means for band control of membership criteria, process, décisions and appeals
in accord with international covenants be instituted;

8) that the subject of the rights of non-lndians such as residency, political and legal
rights, rétention of rights on death or divorce, be studiéd.

vii . ,

l

Thé Special Committee on lndian Self-Government has thé honour to présent its É
SECOND REPORT
ln accordance with its Orders of Référencé of Wednesday, December 22, 1982 and ‘

Monday, Séptémbér 12, 1983, your Committee submits the following report:

ix if

ACKNOWLEDGEMENTS

Sincé thé Spécial Committee on lndian Self-Government began its work over a year
ago, many people have béen called upon to assist the Committee in its work. Thé Committee
would at this timé liké to thank a11 those who participatéd in its délibérations and con-
tributéd to this report.

First, thé Mémbérs wish to express their gratitude to all the witnesses who appéaréd
before thé Committee (see Appendix A). Othérs did not appear but submittéd written briéfs.
Thé contribution of all those who took thé timé to share their views was invaluablé to thé
Committee.

Thé Committee is also gratéful to the Clerk of thé Committee, Mr. François Prégént. to
his colléagué, Mr. Eugéné Morawski, and to thé other staff from thé Committees Branch for
their administrative support.

Thé drafting of this report was the résult of many hours of work on the part of the writ-
ing téam set up by thé Committee to analyse and summarizé thé mass of évidence it
receivéd. Thé Committee thanks thé four membérs of this writing téam, Mrs. Barbara
Réynolds and Mrs. Katharine Dunkléy from thé Réséarch Branch, Library of Parliament,
Mr. Péter Dobell from the Parliaméntary Centré, and Rarihokwats, réséarchér for the
Assembly of First Nations. Théir efforts weré greatly appreciatéd.

Thé Committee also expresses its appréciation to thé other Mémbérs of Parliamért and
représentatives from native peoples’ organizations who dévotéd timé to its work (see Appen-
dix B).

Finally, the Committee wishes to thank thé assistants and réséarchérs in the Mémbérs’

offices, who made an important contribution to the work of thé Committee (see Appendix
H).

l
REPORT OF THE SPECIAL COMMITTEE
ON INDIAN SELF-GOVERNMENT l ‘
1
l
l
1
l

CONTENTS 1
– Page
Chaptér 1: Introduction ……………………………. ………………………………………………………………. .. 3 ,
Thé Committee’s Mandate ……………………. ……………. …………………………… _. 3
Ex Officio and Liaison Mémbérs ………………….. ………………………………. ………. .. 4 1
Rélationship with Other Aboriginal Péoplés ……………………………… . ., ………… …. .. 5 l1
Thé Special Committee Process ………………………. ………………………………………. .. 5
Powers of Committees ……… ……………………………………………………………………. 6 ’
Terminology ………………… ………………………………………………….. ………………. 7
Chaptér 2: Sétting thé Stage ……………. …………………………………………………………………………. .. 11 .
lndian First Nations ………… ……………………………………………………………………….. .. 11
Conflicting Viéws of History ……………………… ……………………………………………. .. 12
Social Conditions ……………………………………………… ……… …………. ……………. .. 14
Obstacles and Limitations …………………………………………………………………………….. 14
li
Chaptér 3: Thréé Aréas of Critical Concérn ………………………………….. ………………………….. .. 27
Education… ………………………………………………………………………………………………. .. 27 i
Child .. ……………… ………………. .. 31
Health Care ………………………………………………………………………………………………… .. 33
Chaptér 4: Self-Government for lndian First Nations ……….. ……………… .. . ….. …………….. .. 39
Thé Nééd for a New Rélationship ……. ……………………………………………………. .. 39
International Expérience …… ………………. …………………………………………………… .. 42
Establishing Self-Government …………………………………………………………. ………… ., 43 j‘!
Thé Courts …………… …….. ………….. .. r ……………… …………………………………… .. 45
Thé Bilatéral Process ………………….. ………….. …………………………………………… .. 45
Législative Action ……………………………………………………………………………………….. .. 46
Chaptér 5: Structures and Powers of lndian First Nation Governments ….. ………………….. .. 53
Thé Starting Point …………………………………………. …… ……………………………….. .. 53
Mémbérship …………………………………………………………………………………………………. .. 54
Flexible Arrangements ……….. ……………… ……………………………….. ………. ….. ._ 56
Constituting lndian First Nation Governments …………………………………………….. ,. 57
Ministry of Staté for lndian First Nations Relations ……. ……………………………. .. 60
Recognition ………………………. .. ………………………. ……. …………………………… .. 61
Special Funding ………………………………… ………………………………………………….. .. 62
Facilitating Negotiations ………………………. …………………. ……………………… .. 62
North of60° ………………………………………………………… ………………………………… 62 _
Scope of Powers ………………………………………………………………….. …………………. .. 63 1
Accommodating Différences ………………………………. ………………………………….. .. 65
Non-Mémbérs Living Away From Réserves …………………….. ………………………… .. 67
Chaptér 6: Thé Economic F oundations of Self-Government ………………. …….. ………………. .. 71
Obstacles to Development ………………………………………… ….. ……………….. ….. .. 73
Case Studies ……………………………………. ……………………. . …………………………. .. 74 ï
New Arrangements …….. ……………………… ……………………………….. ………. ……. .. 75
A Spécial Development Bank ………………………………………………………………… …. .. 76 i’
xi i’!

Chaptér 7:

Chaptér 8:

Fiscal Arrangements. . . _. ……… ……. .. .

Evolution of the Présent Systém .. ,

Déficiénciés of Présent Arrangements.

Conclusions of thé Réséarch Report . . . . . . . . . , . . , . _ . . . . . . _ _ . . . . . . . . . . . . . . . . . . . . . . ………… .1 .
Nééd for New Funding Arrangements ……………………….. .. .. ….. ………………….. ._
Basic Requiréménts of New Arrangements _.,
Establishing Accountability ……… ……………….. ………………………………….
Source of Funds ……………………… ……………… ..
Funding Principlés ……………………………………………………………… ,. . …………… ..
Disbursing Funds ……………………………… ., ………………………………….. ……… –
Funding of Bands Not Opting for Self-Government .

Conclusion …….. ……. ._

Lands and Resources ………. ……………… ._ ……….. ……. ………….. .,

Introduction ………………………….. …………………………………………… _.
Réservés ……………………………………………. ..

lndian Interésts in Other Lands

Lands North of 60° …….. -……_..Ï.ÏÎÉ_.ÇÇÏ[ÎÇÎÇÂÇÏÏÇÎÎÇQÎÇÇÎÇÇÎÂÇÇÇÎÇÏÏÎjfjfijfÏ i. iÏ[ÏÎ.ÏÇ iÏÎ.[Î
Réstoration of the Land and Résource Base …………………………………………….. ._ ,
Thé Résolution ofC1aims ……………………… ……………………….. . .. …………….. _
Chaptér 9: The Trust Rélationship, ………………………. . …………………………………… ………… ..

Chaptér l0:

The Crown and the First Nations

The Trust Accounts

Conclusion ……………………………………………………….. …………………………………….. ..

The Future of thé Department .
Parliament and the lndian Péoplés .

Accommodating Diversity……………5111i.ihiaiiniihiiii.il.ihiiiliiiiiiiiiiiil1.1i:Jhiiijilixiiiiiii

Conclusions and Recommendations . . . . . ………………….. ……… . . . ……………….. ..
Appendices
A. Witnéssés Who Appeared Beforé the Committee …. .. . ………………………………………………… ..
B. Other Mémbérs Who Participated ………………………. …. _ .. …………………………. .. . ……. …….. ..
C. lndian Institutions ………………. ………. …………….. …………………….. ……………………. ..
D. Federal Government Structurés Déaling with lndian Péople ……………….. .. . .. .. ._
E. How the Committee Organized its Work ……. …………………………… . . _ . . . . . _ . . , . . . _ . . . . . _ . . ..
F. Réséarch Projécts Commissioned by the Committee . . . . . _ . ………………. ……………………. . .
G. Meetings in thé United States …………. . . . . . _ …………………………………………. …. ..
H. Committee Staff, …………………………………….. . .. …… …… ………… …. ……………………. ..

xii

81

81
83
87
93
94
96
97
98
99
101
10%

1 O5

105
106
109
110
111
111
113

119
119
12.2
1233
133

133
134
136

141

149
173
175
179
185
191
197
199

INTRODUCTION

. ifiâänæïfleæzä. 4 4. v

W
m
w

I sit

on a

man’s bac/c

choking him

and making

him carry

me and yet assure m yse/f and
Othérs that 1 am sorry for him
and wish t0 lighten his load by
all possible means – except by
getting off his back.

——Leo Tolstoy, What Then Must We 00?,
1886. (Quotéd in a submission to

the Special Committee by
Thé Mayo lndian Band, Yukon)

CHAPTER 1

INTRODUCTION

The Committee’s Mandate

Thé Standing Committee on lndian Affairs and Northern Development had, over the
years, réceived substantial évidence from lndian people about thé numérous difficultiés they
weré experiencing in their financial, institutional and législative relationships with thé féd-
eral govérnmént. Conséquéntly, in its Fifth Report to the House of Commons on June 1,
1982, the Committee askéd for authority “to examine thé governmént of Canada’s total
financial and other relationships” with lndian people. On August 4, 1982, the House of

Commons responded to this réquest with a two-part Order of Référence.

The Committee was first directed to form a sub-committeé “to study thé provisions of
thé lndian Act dealing with band membership and lndian status, with a view to recommend-
ing how thé Act might bé amendéd to remove those provisions that discriminate against
women on thé basis of sex”. Known as the Sub-committee on lndian Women and the lndian
Act, its report was approved by the Standing Committee and tabled with thé Clerk of thé
House of Commons on Séptémbér 22, 1982 as the Standing Committee’s Sixth Report.

Pursuant to the second part of its référencé, thé Standing Committee then appointed
another sub-committée, which it called the Sub-committee on lndian Self-Government. This
sub-committée was directed, among other things, to make recommendations to Parliament
“. . .in regard particularly to possible provisions of new législation and improved administra-
tive arrangements to apply to some or all Band Govérnments on réserves taking into account
the various social, economic, administrative, political and démographie situations of lndian
bands, and the views of lndian bands in regard to administrative or legal change”.

In December 1982, the House of Commons revised its committee rules. As a résult, thé
House décidéd on December 22 to upgrade thé sub-committ.eé to a spécial committee. Thé
référencé from the House of Commons specifically stated that the Special Committee was to

3

be known as “The Parliaméntary Task Force on lndian Self-Government”, an important

recognition by the House of the inquiry’s .broad nature. Eight matters the Sub-committee on
lndian Women and thé lndian Act had récommended for further study weré added to thé
Special Committee’s référence. A copy of thé Special Committee’s orders of référence can be
found on page v. The Special Committee chose to interpret its mandaté broadly, so as to
allow witnesses maximum fléxibility in offering suggestions about how thé relationship
between Canada and lndian people should be changed.

The Special Committee was also directed t0 take account of thé Constitutional Confér-
ence of March 1983, held for the purpose of idéntifying and défining the rights of aboriginal
peoples. The Constitutional Conférence had an influence on thé Special Committee’s work.
Although the Committee’s study and thé Constitutional talks weré two quite separaté pro-
céssés, some of the issues overlap, and this proximity créated some confusion. In some cases
witnesses éxpresséd thé fear that the Committee was pré-empting the constitutional process.
Some witnesses, particularly those in Alberta, where the Committee travelled in late 1982,
felt strongly that no discussions about change in thé législative relationship between Canada
and lndian peoples should occur until aboriginal and treaty rights weré identified and
defined in the Constitution. Still othérs, while recognizing the nécessity of constitutional
action, acknowlédged that theré could be a positive rolé for législation.

To émphasize thé distinction between its task and the Constitutional discussions, thé
Spécial Committee suspéndéd its hearings for a short périod surrounding thé Constitutional
Conférence. lmmediately before the Conférence, the Committee issued a press releasze that
drew no conclusions but outlined relevant testimony thé Committee had héard relating to
issues before the Conférence. Mémbérs of thé Special Committee also atténded the Confér-
ence as observers.

At thé Conférence an accord was signed to continue the constitutional process and t0
place thé subject of self-governmént on thé agenda of the next Conférence. The Committee
thus believés that its report on self-governmént could be of assistance to those participating
in discussions at thé next Conférence. Moréover, the impleméntation of some of the Spécial
Committee’s recommendations will réquire Constitutional change.

Ex Ojficio and Liaison Mémbérs

At times throughout its hearings thé Special Committee was réceived with some scepti-
cism. As mentionéd éarliér, some witnesses felt that the Committee should not have béen
formed until after thé constitutional issues had béen resolved. In a number of cases theré was
uncertainty about the rolé of thé Committee, particularly with respect to thé lndian band
govérnment proposal initiatéd by the Department of lndian Affairs and Northern Develop-

4

ment (DIAND). Many witnesses réferréd to thé consultations held in 1967 and 1968 for thé
purpose of amending the lndian Aet and the subséquent introduction of the 1969 Whité
Paper which, they felt, did not reflect thé views they had given. In still other cases, witnesses
did not distinguish between the Special Committee and the Standing Committee (many of
its members are the same) and took thé opportunity to air griévances against the Depart-
ment. Committee members had to émphasize constantly that thé Committee was not a con-
sultative mechanism on the DIAND lndian band govérnmént proposal and that thé Commit-
tee was quite separaté from thé Department. As well, in some places, notably Alberta,
Saiskatchewan and the Maritimes, objections weré raiséd to the présence of the ex officio or
liaison members of the Committee. A11 of thesé réactions reflécted a sensé of mistrust and
uncertainty about the Committee’s rolé and responsibilities.

Rélationship with Other Aboriginal Péoplés

It should bé pointed out that the Special Committee was directed to examine lndian
self-govérnmént, not aboriginal self-govérnmént. The Committee therefore dévotéd its
efforts éxclusively to discussing changes in the relationship between Canada and lndian peo-
ples, éven though the Constitution identifiés thréé aboriginal peop1és—lndians, Inuit and
Métis. Inuit weré not among the witnesses. Although some Métis people weré included as
witnesses as part of délégations from thé Native Council of Canada and its affiliatés, thé
Committee did not have a mandate to report on issues of concern to the Métis.

The Special Committee Process

To ensure that thé Canadian public was informéd about its work, thé Committee placéd
advértiséments in various néwspapérs throughout Canada and used thé média as widély as
possible to publicize its activities.

The Committee réceived information in thréé principal ways: from oral téstimony at
public meetings where members questioned witnesses; from submissions made in writing;
and from the research projécts it commissionéd. To givé prospective witnesses an idea of thé
range of items under study, thé Committee distributed a list of sample questions that wit-
nesses might éxpect t0 bé askéd. lncludéd in thé list weré questions relating to structurés of
govérnmént, the process of achieving self-govérnmént, fiscal relationships, the délivery of
services, economic development, and treaty and aboriginal rights.

The Committee endeavouréd to hear as many oral présentations as possible from lndian
govérnments and from other organizations and individuals. Critéria weré éstablished for thé
sélection of witnesses to ensure a représentative cross-section of lndian bands and organiza-
tions. The Committee heard a total of 567 witnesses, during 215 oral présentations. Wit-
néssés’ names and affiliations are listéd in Appéndix A.

T0 obtain first—hand information, the Committee travelled to a11 régions of Canada. Of
its 60 public meetings, only 21 weré held in Ottawa. Thé Minister of lndian Affairs appéaréd
before thé Committee in Ottawa on four occasions; officials of the Departments of Justice,
Secretary of Staté, and National Héalth and Wélfare also téstified. The Assembly of First
Nations and the Native Women’s Association of Canada each appéaréd twice in Ottawa and

5

thé Native Council of Canada once. Among thé other witnesses in Ottawa weré two lndian
organizations and sévén lndian bands and governménts who weré unable to meét with the
Committee during its cross-country hearings.

In its travéls, thé Committee génerally tried to hold meetings on réservés or native
premisés. Of thé 39 hearings on the road, 14 weré held on réservés, 9 in friéndship centrés, 3

D.C., to meét with United States govérnmént officials and with U.S. national lndian organi-
zations (see Appendix G). This trip continued to fivé Puéblo réservations in New México.

Thé Committee also sought évidence through résearch projects. Four major subjécts
weré identified as significant aréas where specializéd information was requiréd. Réséarch
projects from private consultants weré commissioned on thé following subjécts:

1) fédéral expenditurés and mechanisms for their transfer to Indians;
2) thé First Nations and the Crown, a study of trust relationships;

3) relations between aboriginal peoples and govérnments in other parts of thé world;
and

4) the economic foundations of lndian self-govérnmént.

When the studies weré completed, the réséarchérs met with the Committee in eamera te pro-
vide brief overviéws of their reports and réspond t0 questions. Thése studies proved t0 be
valuablé aids in the préparation of this report. More detailéd descriptions of them can be
found in Appendix F.

Thé Committee was originally schéduléd to table its final report on Séptémbér 12, 1983,
but was unable to complété its work by this deadliné. Conséquéntly, the Committee tabled
its First Report on Monday, Séptémbér 12, 1983, requésting that its mandate bé exténdéd to
the end of thé current session. Thé Committee’s First Report was concurred in by the House
and thus the Committee continued its work.

Furthér détails on how the Committee organizéd its work are provided in Appendix E.

Powers of Committees

Thé House of Commons Spécial Committee on lndian Self-Government is a parliamen-
tary body made up of représentatives from thé thréé political parties. lt can make récom-
mendations to thé House of Commons, but impleméntation requires action by the govérn-
ment. This can take the form of législation submittéd to Parliament or policy changés within
thé éxisting législative authority. In addition, thé rules of thé House of Commons provide
that a committee can réquest that thé govérnmént submit a compréhensive responsé to the
committee s report within 120 caléndar days of thé tabling of thé committée’s report (see
page 136 of this report). With respect to the numérous criticisms the Committee heard about
DIAND actions, in some cases thé Committee made direct représentations to the Minister,
while other matters weré réferréd to thé Standing Committee on lndian Affairs.

6

‘l“ermin0l0gy

Throughout the report the Committee has used the term lndian First Nations t0
describe the entities that would be exercising self-government. Although the terms of refer-
cnce refer t0 “lndian self-government”, the majority of witnesses referred t0 themselves as
members of First Nations. In Order t0 familiarize the general public with the term, the Com-
mittee decided t0 use lndian First Nations in this report. In the following chapter, the Com-
mittee examines the historical background of this term.

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CHAPTER 2

SETTING THE STAGE

lndian First Nations

For thousands of years prior to European exploration and colonization, North America
was inhabited by many different indigenous peoples Organized into political entities and
groupings based on common languages and cultural _traditions. Along the eastern seaboard
alone, explorers encountered dozens of distinct peoples.

At that time, the term normally used in Europe to describe people speaking the same
Ianguage and having the same cultural traditions was ‘nation’; hence there could be many
national groups living in one state. When Europeans encountered the different North Ameri-
can peoples it was natural to apply the term in common use in Europe at the time; they
described these separate peoples as ‘nations’. Thus the Royal Proclamation of I763 refers to
“the several Nations or Tribes of lndians with whom We are connected”.

In recent years indigenous peoples have given new expression to their distinctiveness and
their origins. Names have assumed a special significance. Eskimo and lndian ( a term that
arose because the earliest explorers mistakenly thought they had reached lndia) are per-
ceived as European terms. Inuit have asked that. they be called what they call themselves—-
Inuitv———meaning simply, the Péople. In less than two decades the term has come into general
use.

The peoples of Canada now known as ‘lndians’ face a different situation. Inuit speak
more or less one language, so they were able to take an indigenous word that has meaning
for all Inuit. The lndian peoples of Canada, however, speak dozens of distinctly different lan-
guages; their common languages are English and French. lndian peoples in Canada have
thus extracted from history an English term that had been used in the Royal Proclamation,
in treaties and in major legal decisions in the United States—«the word ‘nation’. Together
they refer to themselves as ‘First Nations’, a term with historical and political significance.

l l

The term nat.ion has particular sensitivity for many English-speaking Canadians

because it is linked to the Quebec question in Confederation, but as used by lndian people it
does not have separatist connotations. Rather, it means a group of people with a common
language, culture and history who identify with each other as belonging to a common politi-
cal entity.

Conflicting Views of History

The view of history held today by most non-lndian Canadians and the perspective held
by most lndian people are almost mirror images. lndian people consider the ‘discoverers’ and
‘explorers’, in whose memory monuments are erected and postage stamps issued, to have
been intruders in a land already well known to the nations that inhabited it. lndian people
know their nations to have been productive, cultured, spiritual, intelligent civilizations com-
parable to those in Europe at the time of first contact. But they are portrayed instead as sav-
ages and pagans, unknowing of religion and needing instruction in simple tasks. Because only
a one-sided, negative portrayal has been widely disseminated, non-lndian Canadians are
poorly prepared to understand the perspective held by lndian people and to comprehend the

today. This often leads to confrontation.

lndian people view treaties as reaffirmations of their sovereignty and rights and as
agrcements to allow settlement in certain areas; non-lndians regard treaties as an CXÎIïIgëJISlI-
ment of rights, an acceptance of the supremacy of the Crown, and a generous gift of land to

their own traditions and ancient doctrines such as Magna Carta, while at the same time

regarding the Royal Proclamation as antiquated and lndian tradition as inappropriate for
modern times.

Instead of accepting the lndian view of their own history and culture, non-lndians see
only the self-fulfilling stereotypes that victimize people of the First Nations as drunks and
welfare recipients, unable to practise acceptable standards of conduct and incapable of learn-

But Canadians and their governments must understand their own part in creating the basic
causes of this situation. Not only has the situation not been of the lndians’ own making, but
the federal government has removed from lndians the access to and control over their own
resources that would allow them to take the actions necessary to end an unacceptable situa-
tion.

spiritual values, because religion was not separated from other aspects of First Nation life.
lndian nations did not generally have written constitutions, but, like England, conducted
their affairs on the basis of traditions modifed with pragmatic innovations. Witnesses gave
evidence to the Committee of how these lndian political concepts had directly affected non-
Indian institutions. Specifically, they described how the political philosophy of the Iroquois
Confederacy had been incorporated into the Constitution of the United States.

I2

Among the many examples presented to the Committee by witnesses, two forms of First
Nation governmental organization are illustrative. The Iroquois (as they were known by the
French) or Six Nations (as the English called them) or the Haudenosaunee (People ofthe
Long/muse, as they called themselves) have a formalized constitution, which is recited every
five years by elders who have committed it to memory. It provides for a democratic system in
which each extended family selects a senior female leader and a senior male leader to speak
on its behalf in their respective councils. Debates on matters of common concern are held
according to strict rules that allow consensus to be reached in an efficient manner, thus
ensuring that the community remains unified. A code of laws, generally expressed in positive
admonitions rather than negative prohibitions, governs both official and civil behaviour.
Laws are passed by a bicameral legislature, made up of senior and junior houses. A council
of elders oversees the general course of affairs. Since officials are chosen from each extended
family, the system is called ‘hereditary’. While the commonly held belief is that hereditary
chiefs hold dictatorial powers, these leaders are actually subject to close control by their peo-
ple and can be removed from office by them.

The Canadian government suppressed the Haudenosaunee government by jailing its
leaders and refusing to give it official recognition. In I924, the council hall at the Six
Nations Reserve was raided by the Royal Canadian Mounted Police (RCMP). All official
records and symbols of government were seized and have never been returned. The system of
‘band councils’ mandated in the lndian Act was installed in its place.

The second example is that of the Potlatch, a system used by many First Nations on the
West Coast. From time to time, community or national leaders call assemblies which are
widely attended. Through ceremony, song, dance and speeches, new leaders are installed in
office. Wealth is redistributed through an economy based on giving rather than accumulat-
ing. Names are given and recorded. Political councils are held and decisions are made. His-
tory is recalled and instructed. Spiritual guidance is given. While the system of the Potlatch
is very different from that to which Europeans are accustomed, it contains all the necessary
elements to maintain continuity, good government and a sense of identity, and it permits
people to conduct their own affairs and to determine the course of their destiny.

As was the case with the Haudenosaunee, the Potlatch was outlawed by the Canadian
government. Attendance at Potlatch functions was prohibited by law as late as I951, and jail
sentences were handed down to violators. All of the ceremonial items and symbols of govern-
ment were seized by the federal government. Despite the return of some items, a large num-
ber have not been returned and are dispersed in museums in Canada and abroad. People who
lived according to the Potlatch had to practise their religious beliefs clandestincly and were
forced to live under a system of government imposed on them. Despite this suppression, tra-
ditional governmental systems like that of the Haudenosaunee and the Potlatch have not dis-
zlppeared.

The Committee values the understanding it gained during the course of its hearings. All
(‘ztnadians would benefit from similar information so that their understanding of their rela-
lionship to the lndian First Nations could be extended. In this way, the popular view of Indi-
uns could be corrected. They would learn that lndians were not pagan and uncultured, but
pcoples who moved from free, self-sustaining First Nations to a state of dependency and
moral disorganization as the result of a hundred years of nearly total government control.

l3

This Committee’s report, if implemented fully, will change this state of affairs. All sectors of
Canada, the federal government and provincial governments can work together with lndian
First Nations to put an end to this era of history and to create the new relationship the Com-
mittee calls for.

Social Conditions

The extent of the social disintegration and deprivation arising from the history of rela-
tions between Canada and lndian peoples is evident in the publication lndian Conditions: A
Survey. Published by the Department of lndian Affairs and Northern Development in 1980,
it provides the sobering facts about social conditions among lndian people today. Officfëals
from the Department of National Health and Welfare confirmed that conditions are not
improving:

The infant mortality rate for lndian people in 1980 was 24.3, which is still two and a half
times the national average;. . .our perception is that unless. . .the lndian Health Policy
works, where we have more people taking r_esponsibility for their own health, we cannot
improve it simply by putting in more medical services. . . .

[The situation] is still bad. Accidents, violence, and poisonings are the number one cause
of death. They are three times higher than the national average. Rates of suicide, certainly
in the young age group, are six times the national average. It is difficult. It is a tough
problem, and it is almost out of our control. But we monitor it. There is a slow improve-
ment, but notas fast as it should be. (Sub 6:36)*

Some of these conditions are detailed in the accompanying table.

Obstacles and Limitations

These social conditions clearly demand immediate attention. Yet lndian people are
faced with an array of bureaucratie and Iegislative obstacles that limite their ability to act.
Foremost among these is the complexity of governmental structures for dealing with issues of
concern to lndian people. Moreover, the lndian Act itself restricts lndian initiatives.

Governmental Complexity

lndian people must work through a complex governmental structure in order to meet
even basic needs. Complexity at the federal level is further compounded by the need to deal,
on some issues, with provincial authorities as well. The following list illustrates the range and
number of federal departments and agencies confronting lndian people. Further details can
be found in Appendix D.

* The Committee has used the following system for citing witnesses’ testimony. ‘Sub’ or ‘Special’ means the
Minutes of Proceedings and Evidence of the Sub-committee on lndian Self-Government or the Special Com-
mittee on lndian Self-Government. (See Chapter 1 for an explanation of the difference between the Special
Committee and the Sub-committee.) The figure before the colon indicates the issue number, while the figure
after the colon refers to the page number. Thus, Sub 6:36 means that the testimony can be found on page 36 of
Issue No. 6 of the Minutes of Proceedings and Evidence of the Sub-committee on lndian Self-Government.

14

Child Welfare: The proportion of lndian children in care has risen steadily to more than

five times the national rate.

Éducation: Only 20 per cent of lndian children stay in school to the end of the secondary A Ÿ

level; the comparable national rate is 75 per cent.

Housing: Nearly 19 per cent of on-reserve homes have two or more families living in them;
these conditions affect 40 per cent of all status lndian families.

Facilities: In 1977, fewer than 40 per cent of lndian houses had running water, sewage
disposal or indoor plumbing facilities; the national level of properly serviced houses is over
90 per cent.

Income: The average income of lndian people is one-half to two-thirds of the national
average. t

Unemployment: The unemployment rate among lndian people is about 35 per cent of the
working age population; in some areas it is as high as 90 per cent.

Prisoners: Native people are over-represented in proportion to their population in federal
and provincial penitentiaries. In Manitoba, Saskatchewan and the North, Native people
represent more than 40 per cent of the prison population. The proportion of lndian juve-
niles who are considered delinquent is three times the national rate.

Death Rate: Despite improvements over the past l0 years, the death rate among lndian
people is two to four times the rate for non-lndians.

Causes of Death: Accidents, poisoning and violence account for over 33 per cent of deaths
among lndian people, as compared with 9 per cent for the Canadian population as a
whole. lndian people die from fire at a rate that is seven times that for the rest of the
Canadian population.

Violent Death: The overall rate of violent deaths among lndian people is more than three
times the national average.

Suicide: lndian deaths due to suicide are almost three times the national rate; suicide is
especially prevalent among lndians aged 15 to 24.

Infant Mortality: The infant mortality rate (up to the age of four weeks) among lndian
children is 60 per cent higher than the national rate.

Life Expectancy: If an lndian child survives its first year of life, it can expect to live I0
years less than a non-lndian Canadian. The life expectancy of lndian women, for example,
is 66.2 years, while non-lndian women can expect to live 76.3 years.

Hospital Admissions: lndians use hospitals about 2 to 2.5 times more than the national
population.

Departments providing programs and services:

0 Department of lndian Affairs and Northern Development

——the principal link between the federal government and lndian people on legal, treaty
and, until recently, Constitutional matters, as well as the major provider of services
and programs

0 Department of National Health and Welfare

——-operates an lndian health program, including 400 health facilities

0 Department of the Secretary of State

—-—funds political, social and cultural development activities of some lndian groups

0 Department of Justice

—-provides legal advice to departments dealing with lndian matters and has a leading
role in Constitutional discussions

0 Ministry of the Solicitor General

——administers the criminal justice system (RCMP, penitentiaries, parole system)

0 Ministry of State for Small Business and Tourism

Madministers a S345 million Native Economic Development Fund
Central and co-ordinating agencies:

0 Ministry of State for Social Development

——reviews departmental program and Iegislative proposals where they affect the wel-
fare and social development of lndian people

0 Ministry of State for Economic and Regional Development

—co—ordinates policies and programs related to industrial and regional development

0 Treasury Board

——approves departmental spending estimates

0 Federal-Provincial Relations Office and Office of Aboriginal Constitutional Affairs

——co—ordinates federal participation in the Constitutional process and consultations
between the federal government and aboriginal peoples

The lndian Act
General concerns
The lndian Act presents a paradox for lndian people; it confirms the special status of

lndians, but it can also be viewed as a mechanism of social control and assimilation. In
Making Canadian lndian Policy’, Sally Weaver refers to “the century-old ambiguity that

16

lndians have felt about the lndian Act——their resentment of its constraints and yet their
dependence on it for the special rights it provided.”*

The lndian Act is a comprehensive piece of legislation that circumscribes activities in all
sectors of lndian communities. It places constraints on the rights of lndian people and bands
and limits their ability to govern themselves effectively. The main purposes of the Act, as
described by the Department of lndian Affairs and Northern Development (DIAND), are:

to provide for band councils and the management and protection of lndian lands and
moneys, to define certain lndian rights, such as exemption from taxation in certain cir-
cumstances, and to define entitlement to band membership and to lndian status.

The first consolidated lndian Act was passed in 1876; the Act was last amended over thirty
years ago, It contains many anomalies and inadequacies.

Among the criticisms of the lndian Act is its failure to recognize the diversity of lndian
peoples. The Act treats lndians as a homogeneous group without taking into account varia-
tions in culture, language, resources, size and location of communities. The absence of flexi-
bility has also been perceived as a means of assimilation.

Serious objections were also registered with respect to the relationship between lndian
band councils and the Department. Band councils exercise delegated powers. In fact, they
are viewed for the most part as extensions of DIAND. Even the Department states that “band
governments are more like administrative arms of the Department of lndian Affairs than
they are governments accountable to band members”.** Band councils are the only lndian
governmental organization recognized in the lndian Act. But tribal councils, treaty organiza-
tions, and provincial, regional and national associations of various kinds play a vital role in
the political activities of lndian people. Further details about some of these institutions can
be found in Appendix C.

Departmental control of lndian activities has been a consistent element of lndian life. In

the past, an lndian agent representing the Department at the local level had control over vir- .

tually all aspects of life, even to the point of issuing passes to allow lndians to leave the
reserve temporarily. While the lndian agent has disappeared, the Department still exercises
considerable control, particularly over band governments. Witness after witness said that the
Department makes planning and budgetary decisions without adequate input from bands.

Chiefs and councillors felt constrained by a system that does not enable them to respond
to the needs of their communities. They are in a particularly awkward position because they
are accountable to DIAND for moneys received, but they are also accountable to their people,
whose priorities and needs are often at variance with departmental requirements. While vari-
ous policy directives have emphasized consultation with the bands, real control still rests with
DIAND. A recent study concluded:

Over the long run the most contentious aspect of the lndian Act was the sweeping power
that it gave to administrators and to the federal government. The lndian Act extended the

* Sally Weaver, Making Canadian lndian Policy: A Hidden Agenda 1968-1970 (Toronto: University of
Toronto Press, 1981), p. 19.

**Canada, DIAN D, Strengthening lndian Band Government (Ottawa, 1982).

17

regulatory reach of the government into virtually every nook and cranny of lndian life.
lndians, unlike other Canadians, were not faced with a plurality of governments and gov-
ernment departments but rather with a single government and a single department.
Although the Act presented a veneer of self-government and lndian participation in the
control of their lives, even the veneer was an illusion.*

Restrictions on band and band council powers

Bands and band councils are creatures of the lndian Act. That is to say, all their legally
recognized powers are defined in and, more importantly, limited to those specifically men-
tioned in the lndian Act. Many important matters necessary to the functions of government
in modern society are omitted from the Act. These omissions have resulted in great uncer-
tainty about the legal capacity of bands and of band councils and have raised questions as to
whether a band council can sign contracts, bring law suits, and generally act in the name of
the band. A band’s legal status depends on other statutes:

The cases have concluded that a band is not a corporation, even though bands do exhibit
some of the characteristics of a corporation. A band has been held to be a person, and an
employer, in some instances, but these instances are restricted to the particular statute
involved and the definition of the person or employer. For example, in the Moses Tom
case from Manitoba, a band was not a person capable of making application for custody of
one of its members because it was not a person within the meaning of the Act. On the
other hand, under the Coronerïv Act of B.C. the Masset Band Council was held to be a
person that was capable of demanding an inquest into the death of one of its members. So
whether a band is a person or an employer is entirely up to the statutory interpretation of
the applicable statute, and whether a band is a person or employer by its own merits has
not been judicially interpreted. (Canadian lndian Lawyers’ Association, Sub 13:10)

Because there are no general rules in the lndian Act or elsewhere in Canadian law, each case
is decided narrowly by interpreting the statute that applies in the circumstances. Each new
situation raises new questions. This uncertainty has been a great impediment to band initia-
tives.

The Canadian courts have held that bands cannot acquire title to land. Nor can they sue
or be sued. As the Association of Iroquois and Allied lndians noted, this means that the fed-
eral government “is often involved in band transactions where it has no active role but is
made a party out of uncertainty as to the band’s capacity to do business. . . .Creditors often
look to the federal government for payment of band accounts since bands are considered to
be non-suable.” (Special 16A:1 1)

A Halifax law firm, Aronson, MacDonald, described the practical problems that result
from this uncertainty:

The uncertainty permeates all dealings between bands and employees, suppliers, contrac-
tors, financial institutions and governments. It is constantly assumed that there is no point
in taking a band to court as it is not a suable entity. Section 89(1) of the lndian Act is fre-
quently called in aid to support this assumption, although the provision is concerned only
with granting an immunity to effectively collect a debt from a band, an immunity com-
monly granted to governments. However, the assumption clearly affects many commercial
transactions and the legal manner of entering into contracts, for example. (Written Sub-
mission, November 29, 1982)

* J. Rick Ponting and Roger Gibbins, Out of lrrelevance: A Socio-Political Introduction to lndian Affairs in
Canada (Toronto: Butterworths, 1980), p. 12.

18

One remedy is for band members to incorporate as a company to carry on business ven-
tures, own land or undertake other activities for the benefit of the band. This solution
presents additional difficulties; because a corporation is not “an lndian” for purposes of the
Act, it cannot benefit from tax exemptions available to lndian people. Incorporation has
many other implications. For example, land held by the corporation may not be considered
“Lands reserved for the lndians” (under the Constitution Act, I867, formerly the British
North America Act). Thus provincial, not federal, laws will apply.

Section 81 of the lndian Act sets out the by-law making powers of band councils. These
powers are totally inadequate for the varied situations of lndian peoples in the twentieth cen-
tury. The Musqueam Band, for example, is located in Vancouver and owns prime residential
land. If that land were to be developed, the band would need the power to enact zoning and
building by-laws, among other matters, powers that bands do not have now.

Even the limited powers of band councils are further diminished because they can be
rendered invalid by federal laws, federal regulations or the Minister’s disallowance. Provin-
cial laws ‘of general application’ also interfere with band council powers. Councils are virtu-
ally powerless as governments. Many witnesses described the council’s role as administrator
of government policy:

Under the current system of band government, the chief and council are so restricted in
providing the three basic functions of government that it can hardly be called government
at all, but more properly the administration of federal policy at a local level. Under the
current Act the council can regulate little, except weeds and dogs on the reserves, without
the blessing first of the Minister and his administrative arm.

The council’s role in representation of the people’s wishes is, for the most part, ignored by
both senior levels of government. All too often band governments must resort to confronta-
tion, to media events, to expensive lobbying just to get heard.

. . .Again, in a governments function of allocation the bands of our experience are for the
most part restricted by the Act and the Department’s policy to the delivery or distribution
of resources as allocated by the Department.

Stripped of the authority to operate the fundamental functions of government, current
band governments are little more than factotums of federal control. (Quesnel Community
Law Centre, Special 20:168-169)

Recent attempts to revise the lndian Act

The last major revision of the lndian Act occurred in 1951 following a detailed review in
1946-48 by a Special Joint Committee of the Senate and the House of Commons. A depart-
mental history notes that the main features of the 1876 legislation were not altered:

The new lndian Act did not differ in many respects from previous legislation. The main
elements of the earliest Dominion legislation, i.e., protection of lndian lands from aliena—
tion and lndian property from depredation, provision for a form of local government,
methods of ending lndian status, were preserved intact.*

The history also described the reduction in the Minister’s responsibilities to a “supervisory
role, but with veto power”. Nevertheless, the remaining powers of the Minister are consider-
able.

* Canada, DIAND, The Historical Development ofthe lndian Act (Ottawa, 1978), p. 149.

19

Despite argument to the contrary, the powers of the Minister and Governor in Council
remained formidable. Administration of over half of the Act was at the discretion of the
Minister or Governor in Council, the latter being empowered to declare any or all parts of

the Act inapplicable to any band or individual lndian, subject only to another statute or
treaty.*

Between July 1968 and May 1969 the federal government embarked on a series of con-
sultations throughout Canada to identify changes that should be made to the lndian Act.
The meetings had scarcely been completed when the government tabled its White Paper on
lndian Policy, which called for far-reaching changes in the Iegislative framework governing
lndian-Canada relations, including the repeal of the lndian Act. Adverse lndian and public
reaction to the proposal to terminate the special status of lndians was so strong that the gov-
ernment withdrew the paper in 1971.

A resolution calling for the partial revision of the lndian Act was proposed by the
National lndian Brotherhood (NIB) at its annual General Assembly in 1975. Some prelim-
inary work on issues such as surrendered lands, taxation, lndian government, education and
anachronisms within the Act was conducted by a joint NIB/Cabinet committee between 1975
and 1978, but those talks broke off without agreement. Since then, the National lndian
Brotherhood and its successor, the Assembly of First Nations, have opposed piecemeal
change or change initiated by the Department alone.

The policy of devolution

As a result of the breakdtiwn of these processes. the lndian Act has remained in fmce
unchanged. The Department, however, has implemented a policy of devolution in order to
permit bands and lndian organizations to exercise more powers.

This policy was launched in the mid-1960s when the Department began to transfer
responsibility for managing and delivering programs to individual bands. Services such as
social assistance, child care. educating children in Department-run schools, and providing
and operating community infrastructure were among the first to be transferred. In 1979,
Treasury Board approved the first set of “Terms and Conditions for Contributions to lndian

Bands and Organizations”. Departmental figures reveal a steady increase in the funds
administered by bands:

1971 S 34.9 million 16% of total budget
1976 147.6 million 31% of total budget
1982/83 526.6 million 50% of total budget

In addition to contributions to cover the delivery of services, bands also receive core funding
to cover general administrative expenses.

This policy of devolution has transferred only the delivery of services to the band level;
control over programs, policies and budgets remains with the Department. While the
Department has continued to refer to this process as “strengthening band government on

lndian reserves”, lndian witnesses consistently criticized the policy for failing to transfer real
control to lndian people:

We found that the Department has too much control. The bands are told what to do and
what not to do. Program direction stems from the Department instead of the band. The

* Ibid.

20

system is outdated and it is costly. The organization does not relate to the aspirations of j
lndian leaders and band membership. The organization is program- rather than people- l
oriented. The system promotes dependency on the Department instead of self-reliance.
Department structure does not lend itself to the amount of work done. Bands are unable to
pay staff reasonable wages; for example, many have not received a raise in years. Also,
bands want to be trained in the management of their own lands. (Federation of Saskatche-
wan lndian Nations, Special 11:36)

The legal framework has remained, and it has limited the Departments implementation of
devolution. The lndian Act was not intended to provide opportunities for lndian administra-
tion of programs. The Minister commented on the difficulties of continuing the policy of
devolution with the current Act in force:

. . .ln consultation with the lndian leadership, we in the Department, and I think of myself
as minister and my predecessors, have been attempting to stretch the lndian Act as far as
we can to accommodate demands for change. . . We have done this largely through devolu-
tion, but our ability to respond adequately to lndian needs is severely limited, and there
are several reasons for this. The formal requirements of control which we must follow in
accordance with the estimates, are incompatible with the current practice of devolution.
(Sub 2:16-17)

Departmental views on the lndian Act

In his first appearance before the Sub-committee, the Minister tabled two documents.
Strengthening lndian Band Government in Canada and The Alternative of Optiona/ lndian
Band Government Legislation, which he subsequently circulated to all bands. Strengthening
lndian Band Government in Canada outlined the Department’s views of the major practical J
difficulties caused by restrictions in the lndian Act: «

First, the exercise of a11 these powers is subject to various kinds of control by the Minister
and/or the Governor in Council. In most instances, the federal government’s power of dis-
cretionary control of by-laws and other powers is not exercised in practice if a band is act-
ing within the law. The fact that it exists, however, complicates the accountability of band
government and often leads to interminable technical complications to accomplish the
i simplest act.

Second, land tenure system under the lndian Act is based on the historical view that
reserve lands were meant for the exclusive use of lndians and were to be protected for
lndians until they could control their lands like anyone else. This protection was for both
bands and individual members of the band. The lndian Act, therefore, limits the ability of
both the band and the individual to deal with the land.

Third, the Minister also has trust responsibilities in relation to band moneys which prevent
him from permitting band governments to control their own assets and to use them as they
would wish for their own development.

Fourth, band governments have few Iegislative powers in social and economic development
areas. The Department of lndian Affairs has devolved the administration of many such
programs to numerous bands, but has retained the power of program definition.

Fifth, the legal status of band governments has been put in question by the courts. It is
currently unclear whether band governments have legal power to contract with other legal
entitites.

21

The band government. proposal

The Minister argued that Iegislative change is needed lmmediately. He explained that a

minority of bands are constrained in pursuing economic development by the restrictions in
the current Act:

There have been bands. . .that are on the outskirts of municipalities and that want to get
ahead with developmental projects, want to have control of their own land, want to get
under way with certain economic development, and they are being hampered because of
the fact——and criticizing me. I acknowledge they are a minority of bands, but they are
very critical of the fact that we have not proceeded. (Sub 2:35)

The Department has explored several alternatives for providing “a new base from which
lndian bands could exercise the equivalent level of political responsibility enjoyed by all
other Canadians within their own local communities”. The alternatives include a complete
revision of the lndian Act; partial revision of and additions to the lndian Act; the develop-
ment of a series of subject acts affecting lndians (an lndian Education Act, an lndian Finan-
cial Administration Act, and so on); development of a series of regional or individual band
lndian Acts; and the development of companion legislation to the lndian Act to allow for
optional lndian band government at the community level.

The Minister expanded upon the latter option in The Alternative of Optional lndian
Band Government Legislation. Such legislation would be based on the concept “that the ori-
mary locus of decision-making is within the lndian band itself“ and might include soma‘ of
the following elements or characteristics;

Optional legislation: It should be optional since no single approach is universally appropri-
ate. “Bands which wish to continue to operate under that present system should be allowed
to do so.” –

Band charter: Each interested band would develop its own band charter; this would be
“one of the requirements for entry into lndian band government legislation. This charter,
or constitution, would outline, in its own terms, the nature of the relationship which would
exist between the lndian band government and the band membership.”

Expanded powers: “The power to pass authoritative by-laws; the power to adopt other per-
tinent laws by reference if they so choose; the ability to enter into agreements with other
bands and other government authorities and agencies to provide services on reserves; the
ability of developing that service delivery capability themselves; the power to enter into
agreements with banks and other financial institutions in their own right; the power to
raise additional financial resources within their own jurisdictions by levying taxes on both
Indianand non-lndian interests.”

Control over lands: The legislation would give the band “authority and responsibility to
grant interests in land to both lndians and others” while ensuring that lands remain “lands
reserved for the lndians, in order to keep such lands within the Iegislative competence of
the federal government.”

Membership: Bands would “be able to determine their own membership, subject to respect
for acquired rights, and some minimal connection, either by descent or by marriage, of the
individual with the band.”

Enacting by-laws‘: There would be “a clear statement of the capacity of lndian band gov-
ernments to enact by-laws in order to allow for the implementation of their program pow-

,3

CTS.

22

Funding: “The legislation would require as a prior condition that t.he necessary financial l
resources are available to make it work. . . . lndian band governments would presumably
have to meet their own assumed responsibility for the proper use and expenditure of these l
funds, and become accountable to their own band members, within the terms of both the
legislation and the band charter and by-laws, for maintaining agreed-to levels of program
service delivery.”

Role of DIANDZ “Since band governments established under federal legislation would be
junior governments, much like municipal governments are junior to the provinces which
create them, the federal government would continue to play some kind of supervisory role,
by which is meant that it could have the authority to review and reject band by-laws if
necessary.”

The document also outlined other questions that DIAND felt would need to be resolved:

0 additional powers in the areas of membership;

0 management and control of reserve land and trust moneys, health, housing, social
assistance, and control of non-renewable resources on reserves; l

0 law enforcement and the administration ofjustice; j

0 appeals to the Minister from band members concerning irregularities and suspected l
wrong-doing; and l

0 the effect of band government by-laws on neighbouring municipalities and/or provin-
cial lands.

The subject of the trust relationship of the Minister was also addressed in this docu-

ment. lt suggested that this relationship between the lndians and the Minister “wou1d be sig- .

nificantly changed”, but the Minister hastened to point out in testimony that “there is no
desire on my part to abrogate treaty and aboriginal rights” in making this proposal. (Sub l
12:15) According to the document, one interpretation of the new trust relationship might be

as follows:

One of the major changes which could be brought about by lndian band government legis-
lation might be that the Minister would no longer be regarded as having a residual fiduci-
ary trust responsibility for decisions made by an lndian band government from the point
at, and in the jurisdictional area within which, it assumes local control (responsibility)
over its own affairs. The decisions it makes would be its own; the long-term responsibility
would be its own. However, this would not reduce any existing responsibility which the «
Minister may have up until that local control is assumed. The Minister’s general responsi- l
bility for monies voted by Parliament would continue, as would the Minister’s responsibili- l
ties in areas where the Minister’s authority is retained. i

l

When the Committee began its study of self-government, it did not set out to seek i
approval of any of the Departments proposals. (Sub 14:22) lndian witnesses were greatly ‘
concerned that the Committee was a front for the proposed legislation. They feared that the l‘
Committee hearings would be regarded as “consultation” on a band government bill: ‘i
r

We are afraid, after these hearings have concluded, the Minister of lndian Affairs will
introduce legislation designed to free the federal government of its obligations to lndian
people. Once your Sub-committee has completed its hearings and submitted its report, the
Minister may claim the new legislation was developed with full consultation with lndian
people. (Yellowhead Tribal Council, Sub 10:37-38)

23

Witnesses unanimously rejected any band government bill. Their principal criticism was
that the proposal involves a delegation of power rather than a recognition of the sovereignty
of lndian First Nation governments. lndian governments are not to be regarded as junior q
governments, they said, and any changes should involve more than a transfer of administra-
tive responsibility. To do otherwise would be to continue the old policies.

We are disappointed in the extreme by the narrow and limited version of self-government
which the Minister has put forward. It seems deliberately to be slanted to focus discussion
on the minor and administrative aspects of self-government, when it could range to far
more broad and mature concepts. (Blood Band, Sub 8: 1 34)

Witnesses were also concerned that the proposed legislation would alter the trust rela-
tionship between the federal government and lndian people. Witnesses insisted that the spe-
cial relationship not be changed.

We oppose the suggestion that new legislation would alter in any significant way the spe-
cial trust relationship that exists between the Crown and the lndian people of Canada.
Any legislation of lndian self-government should not be employed by Parliament as an
indirect measure of diminishing trust responsibilities of the federal government. (Swampy
Cree Tribal Counci1,Special 35:13)

A fear that legislation would convert lndian governments into municipal governments
was also raised:

lmplicit in the concept is a transition from an lndian reserve with communal land holdings
to a. provincial municipality in which land titles, property taxation and provincial legisla-
tive control are paramount. In such a context the status and function of an lndian chief
and council could be relegated to a virtual non-entity. There would be an inevitable loss of
lndian jurisdiction. (lndian Association of Alberta, Letter to the Minister, February 1,
1983)

Witnesses also criticized the reference to whether bands were “ready” to govern, a
suggestion that reinforces the colonial attitude that lndians must be taught to manage their
own affairs.

In the Minister’s paper to the committee, entitled The Alternative of Optional lndian
Band Government Legislation, he makes a number of references to bands being able to
demonstrate a level of ability, or the ability of developing that service delivery capability
themselves. These are not the standards set by the lndian people for their councils, but the
Department’s criteria. This approach clearly reveals a deep-seated colonial mentality
based on the notion that the uncivilized have to be raised by the administrative measures
and taught to manage their own affairs. (lndian Association of Alberta, Sub 8:13)

Some bands even suggested that current difficulties in obtaining funds are a tactic to
make the new proposals seem attractive.

We realize that the Minister has repeatedly stated that this legislation is optional. It is
only optional for the bands who are not getting any funds from the Department of lndian
Affairs. In reviewing the proposed Iegislative framework, only bands who have opted into
the legislation will be available for increased funds for their administration. Divide and
conquer again. It seems clear to us that the legislation is a form of blackmail to the bands
dependent on the Department for their transfer grants. (lndian Association of Alberta,

Sub 8:14)

24

.l Il ll _. , . l. . l.. .. _ . llzllzilllllllll lll

THREE AREAS OF
CRITICAL CONCERN

….; ..Lîr:.

CHAPTER 3

THREE AREAS OF CRITICAL CONCERN

The discussion of the lndian Act and departmental policies illustrated some of the insti-
tutional obstacles to lndian control of their own affairs. Witnesses’ responses to the band
government proposal show that they reject the Departments proposed solutions to these
problems. In conveying to the Committee their frustration with the current state of affairs,
lndian witnesses gave convincing testimony about the importance of lndian control in areas
central to the cultures of the First Nations. They asserted that in some cases only lndian
control of legislation and policy would ensure the survival and development of lndian com-
munities. Three areas of critical concern were education, child welfare and health.

Witnesses documented the damage to lndian cultures that has occurred in the past.
Their description of the severe limitations of today’s bureaucratie solutions made the need
for fundamental change clear. By describing new projects—already underway despite all the
restrictions——witnesses showed that lndian communities and organizations will take the
initiative, and that immediate change is possible. After hearing the persuasive arguments
documented in this chapter, the Committee developed its own recommendations, which it
believes will deal with these areas of critical concern, among others.

Education

External control of the education of lndian children has been destructive of lndian cul-
ture. The early years of missionary and DlAND-operated residential schools were particularly
condemned by witnesses.

It was believed that by removing lndian youth from their homes and placing them in cap-
tive environments, the heart and soul of lndian culture would be removed, or a process of
de-Indianizing the lndians. Specifically, residential school lndians were not permitted to
speak their language, practise their religious beliefs and rituals, or have the opportunity to

27

learn what it means to be a self-actualized lndian. Rather, these institutions were highly
regimented with programs and a school curriculum alien to its students. (Saskatchewan
Federation of lndian Nations, Special 1 1:82)

While the disproportionate ratio of lndian children in care remains about the same today,
it is important to note that the steady increases in provincial government child apprehen-
sions occurred almost simultaneously with residential school closures. The effects of resi-
dential schools on this generation of parents must be taken into serious consideration since
the lndian parents of today were the generation of residential school children yesterday.
They’re considered by their people as the lost generation. (lndian Homemakers of British
Columbia, “Family Unit Concept”, Exhibit R, Special 17)

The 1971 Sub-Committee on lndian Education of the Standing Committee on lndian
Affairs and Northern Development found that federal, provincial and church schools alike
had failed to educate lndian students. The report laid the foundation for federal acceptance
of the National lndian Brotherhood paper, “Indian Control of lndian Education », which
advocated lndian communities taking responsibility for their children’s education through
their own school boards. The policy was endorsed by the Minister of the day, the Honourable

Jean Chrétien.

Since then, the Department has adopted a policy of lndian control of education, but
lndian bands have discovered that their influence is still limited. The new arrangements have
replaced the drastic unilateral measures of the past with bureaucratie systems that call on
the resources of lndian communities but result in no real lndian control.

One limiting factor is the existence of master tuition agreements with the provinces that
cannot be changed for many years.

It has been a little over l0 years since this policy was presented and accepted as the direc-
tion Indian education would proceed in. The prineiple of lndian control of lndian educa-
tion is really given only lip service in the Province of British Columbia. The major portion
of the education budget in the British Columbia region of the Department of lndian
Affairs goes to the provincial government to honour an archaic contract known as the mas-
ter tuition agreement. This agreement was signed in 1969 between the federal government
and the British Columbia government without lndian involvement or consent. The Minis-
ter of Education for the province of British Columbia stated in 1979 that, regardless of
any agreement, the provincial government will provide education services to status Indi-
ans, because this is their right as provincial eitizens. (Saanieh lndian Sehool Board, Spe-
cial 5:21)

Witnesses pointed out that they have very little control in those cases where funding is
provided direct to provincial school boards. They also suggested that the system of funding
whereby moneys were paid in a lump sum did not provide for sufficient accountability.

Sehool District 88 is paid in full for all native students by October in every school year.
They receive 53,205 for each registered native student, which includes transportation for
bussing. At present we have 17 students attending from our village and many more off
reserve. Our share to the school district presently is 854,485 for the year. The problem is
that this is paid out in a lump sum. . .to Sehool District 88 and by October a lot of the stu-
dents are kieked out of the school and the school district has already received the total
amount of funding. We disagree with that system. (Kitsumkalum Band, Special 7:64-65)

The Committee received further testimony on this subject. The Manitoba lndian Edu-
cation Authority, for example, spoke about the difference between the per capita cost for an

28

lndian student at a public elementary school and the per capita cost for an lndian student at
an lndian-run school. DIAND often pays a higher per capita rate to provincial schools than to
lndian-operated schools. (Special 3:17)

lndians frequently participate in negotiations, only to be overruled by unilateral federal
or provincial decisions, despite assurances that action is only to be taken “with lndian
approval”. The Union of New Brunswick lndians told the Committee that earlier this year
the federal government and the province had gone ahead and signed an education agreement
that was not acceptable to the Chiefs. (Special 23:1 1-12)

Finally, lndian witnesses referred to the absence of adequate representation on boards
and advisory eommittees. In Ontario, for example, lndian representation on school boards is
limited to two, regardless of the number of lndian students. (Special 14:l7)* l

In a paper tabled by the Saskatehewan Federation of lndian Nations, the Peepeekisis
lndian Band documented sub-standard academic achievement and poor attendance at the
local provincial school. The band attributed these difficulties to a number of factors, includ-
ing the absence of lndian representation in the preparation of tuition agreements, the
development of curricula and the delivery of services.

Many witnesses recognized and emphasized the need for education as a means of both
reeovering the cultural values and skills of aboriginal societies and acquiring the skills
needed to survive and prosper in non-lndian society. Education programs operated by federal
and provincial governments were seen as promoting a policy of assimilation.

The prineiple is simple. Only lndian people can design systems for lndians. Anything other

than that is assimilation. (Carrier-Sekani Tribal Council, Special 20A:11)

lndian control over education was seen as an essential component in strengthening
lndian culture and preserving lndian heritage. During a visit to the Long Plain Sehool in
Manitoba, the Committee heard first-hand from the students about the development of a
language program, visits by the elders to tell stories, and the native studies program:

We would like you to know that we prefer our school here on the reserve mainly because
we are among friends and relatives. We are in our own environment, among our own peo-
ple. . . (Long Plain Sehool, Special 2Azl)

Work has begun on native studies programs, but implementation varies throughout the
country. Current laws and policies often prevent lndian organizations from carrying out
their proposals for change:

Right now, the big problem we are having with the school boards and Department of Edu-
cation is that we would like to introduce a lot of curriculum material that is related to our
culture and our background within the school system. We are being bloeked from doing
that by the school boards, by the denominational school board. (Conne River lndian Band
Counei1,Sub 13:70)

* The Ontario Education Act provides for the appointment of one representative of lndian pupils to a school
board that has an agreement with a band council. A second representative may be appointed in cases where
lndian pupils represent a certain percentage of average daily enrolment. (R.S.O. 1980, Chapter 129, Subsec-
tions 165(4)-(6) as amended.)

29

We say that lndian education is to educate lndian people to be lndian people . . . So we

say we need a new order of education which we define as “education to be lndian people.”
(Saskatehewan lndian Education Commission, Special 1 1:68-69)

Throughout the Committee hearings, witnesses provided examples of arrangements or
structures that might be used to achieve their goals if new structures were in place.

It is important, if native culture and native history are to be taught, for example, through
education in the local schools, that that be part of the negotiation process. I think the best
way to negotiate is to have the money in your hand and sit down, for example, with the
local school board and agree upon the basic requirements for education, and then add a
few of these cultural courses and so on that are needed for better understanding. (Central
Interior Tribal Councils, Special 18:23-24)

This might mean that a tribal council would be empowered to act on behalfof a number
of bands, or a special education authority would be created to look after the education needs
of an lndian community. In some cases, lndian First Nations might wish to make agree-
ments with the provinces, but would negotiate their own arrangements regarding funding
and the inclusion of cultural and language studies. Central to this process is the prineiple
that it is the lndian First Nation that should have jurisdiction over and responsibility for
education.

As a result of the James Bay and Northern Quebec Agreement, the Grand Council of
the Crees of Quebec is in a unique situation. The Cree Sehool Board, which operates under
the terms of the Agreement, is a good example of the innovations possible under new struc-
turcs:

The Cree Sehool Board was created in order to implement the concept of Cree control of
Cree education. lt is a prime example of lndian self-control and determination and stands
as a precedent in the field of lndian assumption of responsibilities previously directed by
others. (James Bay Cree, Special 29A:36)

In this case, the Cree Sehool Board has special powers “unequalled in other school
boards across the land, and certainly beyond eomparison with powers related to the adminis-
tration of other lndian boards in Canada.” (Special 29A:40) It exercises some of these pow-
ers in conjunction with the Quebec Department of Education. It has powers to decide on the
language of instruction, choose the curriculum, select appropriate textbooks, hire teachers
and control administration.

Even under the restrictions of the lndian Act, bands, and organizations exercising
authority delegated by bands, have implemented some changes. One such organization is the
Manitoba lndian Education Authority, Another, the Saskatehewan lndian Education Com-
mission, also operates under delegated authority. Its organizational structure includes 69
education boards at the band level, seven district education councils and a 13-person execu-
tive board. (Special 1 1:73)

The Federation of Saskatehewan lndian Nations also provided several examples of insti-
tutions it had developed, including the use of lndian student residences as schools that
“advocated and eneouraged lndians to be lndians”. (Special 11:82) These schools provide
specialized studies in native culture, heritage and language. The Saskatehewan lndian Col-
lege, also under the jurisdiction of the Federation, has as its purpose the revival and per-
petuation of “Indian culture, traditions, history, language, religion and all aspects of the

30

lndian way of life”. Finally, the Federation has worked with the University of Regina to cre-
ate the Saskatehewan lndian Federated College, a college that is administratively independ-
ent but academically integrated with the University.

Looking to the future, the Carrier-Sekani Tribal Council presented a proposal for an
lndian university that would use the talents of all the people in various villages in teaching:

An lndian University having the human and financial resources will develop the plans, the
direction and the blueprints that will transform the present situation of the lndian people
to a people who have their own government. (Special 20A:1 1)

In summary, education is a central area in which lndian people wish to exercise jurisdic-
tion. Witnesses emphasized the destructive nature of external control. Some lndian bands
and organizations exercise a degree of control even now, but have achieved this only by
stretching a restrictive framework to its limits. In order to pursue their goals, lndian people
want real power to make their own decisions and carry out their own plans for lndian educa-
t1on.

Child Welfare

The imposition of non-lndian views of child care, through thc enforcement of provincial
child welfare policies on reserves, has had tragic effects on lndian family life.

A large number of lndian children are under the care of provincial child welfare
authorities. A recent study, Native Children and the Child Welfare System, reveals that in
1955 approximately one per cent of the children in the care of child welfare authorities in
British Columbia were of lndian ancestry. By 1964 this figure had risen to 34.2 per cent.
Patrick Johnston, author of the study, referred to a practice known as the ‘sixties scoop’; pro-
vincial social workers would scoop children from reserves on the slightest pretext in order to
‘save’ them from what social workers considered to be poor living conditions.*

Throughout the hearings, lndian witnesses condemned the policies of provincial welfare
authorities for removing lndian children from reserves in cases where, in the opinion of the
authorities, they were not being properly cared for by their parents. Witnesses criticized pro-
vincial authorities for judging situations by non-lndian standards, which are eulturally dif-
ferent.

The problems that have been encountered in the past by provincial social services have not
only been conflicts of policy but also cultural conflicts. . . .Nothing illustrates this point
better than the removal of lndian children by white social service agencies from lndian
communities. Social service agencies now have the power to seize lndian children and put
them up for adoption outside the lndian cultural environment. Such a practice is totally
unacceptable. (Restigouche Band, Special 22:13)

A11 the laws and regulations administered by the social welfare agencies and workers are
based on a non-lndian concept of the family and intra-family relationships. When applied
to lndian communities, they create problems rather than offer solutions, and often hinder
rather than help as they are intended to do. (Shoal Lake Band No. 39, Special 1:81)

* Patrick Johnston, Native Children and the Child Welfare System (Ottawa: Canadian Council on Social
Development, 1983), p. 23. ‘

31

lndian people see these practices as interference by the provinces in lndian affairs, con-
trary to the special relationship between lndian people and the federal government.

We have had problems in the past dealing with child welfare and the fact that provincial
[authorities] have always had the jurisdiction to come to lndian lands and apprehend any
child, if they thought that child was being abused in any way within the band. . . . Taking
charge of our own lndian government would mean that we should also be able to control
our child welfare, and also eliminate the problem of having the MHR [provincial Ministry
of Human Resources] come into our reserve to apprehend any children. (Treaty 8 Tribal
Association, Special 21:35)

Others saw these policies and practices as means of assimilation.

We want to see an end to federal policies which take away our children from their parents
and from our communities. In British Columbia where l come from, 35 per cent of all chil-
dren apprehended are from lndian or native families, and we comprise only 1 per cent of
the population. (Native Women’s Association of Canada, Sub 4:6)

Each time an lndian child is spirited away from our reserves, family unity is being
destroyed and we are being deprived of our future great leaders. . . lndian children. . have
an inalienable right to keep their parents. They have an inherent right to retain their lan-
guage and culture. We do not condone the system that pirates away our children and even
exports them to foreign lands. . . .We are saying this planned process of cultural genocide
must cease. (Alberta Council of Treaty Women, Sub 10:19)

Jurisdiction over lndian child welfare has been the subject of much debate. As the
lndian Act does not refer specifically to the delivery of child welfare services, and as the
provinces normally have jurisdiction over child welfare matters, section 88 of the lndian Act,
which refers to provincial laws of general application, comes into play. The federal govern-
ment has also encouraged the provinces to deliver child welfare services.

Witnesses before the Committee discussed a number of interim arrangements that have
been worked out under the existing legal framework. For example, in 1980 the Spallumcheen
Band passed a by-law giving itself exclusive jurisdiction over any child custody proceeding
involving an lndian child. In some cases, lndian bands or organizations have been able to
reach agreements with the federal and provincial governments to share administration of
child welfare services.

One of the first tripartite agreements relating to child welfare was signed by Canada,
Alberta and the Blackfoot Band. Under its terms, the band administers the child welfare
programs of the Alberta Department of Social Services and Community Health. Social ser-
vices are delivered to band members by employees of the band’s social services unit. A valu-
able component of the tripartite agreement is its provision of training programs.

In February 1982 the Canada-Manitoba lndian Child Welfare Agreement was signed
establishing “the broad framework by which lndian communities in southern and central
Manitoba will acquire authority and responsibility for child w’elfare”.* This is a master
agreement setting out a general structure. Subsidiary agreements will be signed that detail
specific administrative and financial arrangements.

* Johnston, op. cit., p. 110.

32

lndian witnesses who spoke on the subject were virtually unanimous in their opinion 1
that child welfare is an area over which lndian First Nations should exercise jurisdiction.
The exact mechanisms for the delivery of services would vary throughout the country. As in l
the case of education, witnesses expressed interest in establishing their own services, con- j I
tracting with tribal councils or negotiating agreements with provinces. In all cases, the key j
element was control by lndian people to ensure that their values and customs are respected.

…The Dene have some strong traditions in the area of family and child-raising, over y
which we want our people up here to have jurisdiction and be able to legislate from time to j
time. I do not think we would want to try to come up with legislation today that would be
static for thenext 30 years. Rather, we want to be self-determining, so we want jurisdic-
tion here. (Dene Nation, Special 28:75) 1
l

Young people are the hope and life-blood of our nations, and their removal strikes at the
very heart of our culture and heritage. (Restigouche Band, Special 22: 1 3)

Health Care

The shocking degree of ill-health among lndian people has been widely documented.
Indeed, the federal lndian Health Policy of 1979 referred to the “tragedy of lndian ill-
health” and presented ways to remedy this intolerable situation. Although the federal medi-
cal care program for lndians and Inuit has been extensive, involving significant sums of .
money for health services, lndian health has not improved to any great extent. The Report of
the Advisory Commission on lndian and Inuit Health Consultation noted that the present l
situation is not the result of departmental neglect but rather is due to larger problems:

Yet notwithstanding the dedication of MSB [Medical Services Branch] and its staff, and
the expenditure of these sums, the grievous state of lndian health today is plain for all to
see. The reason is that so many of the causes of lndian ill-health lie beyond the fact ofil1-
ness itself, and the remedies lie beyond the mandate of MSB.*

The report went on to document conditions such as poverty, poor housing, lack of clean
water, inadequate sewage and garbage disposal, and poor diet. Efforts to improve health
must include improvements in these underlying conditions.

Responsibility for lndian health services is currently exercised by the Department of
National Health and Welfare (NHW). At one time all health services were delivered through
federal medical facilities established in a11 the provinces and territories, but gradually the 1
federal government made arrangements with the provinces to deliver hospital services for
lndians through the provincial hospitalization system. NHW continues to operate approxi-
mately 400 nursing stations and other health facilities.

In 1979 the federal government issued an lndian Health Policy designed to promote and i
encourage lndian involvement in the provision of health services. To demonstrate its commit- 1
ment to this policy, the Department of National Health and Welfare began a process of
devolution whereby many health services would be administered at the band level. At present
over S20 million is provided to bands through contribution agreements for band-adminis-

* The Honourable Mr. Justice Thomas Berger, Report of Advisory Conzmission on lndian and Inuit Health v
Consultation (Ottawa, 1980), p. 3. â

33

tered health services. lndian witnesses were quiek to point out, however, that the devolution
of health programs did not include a transfer of control. Real power remained with NHW.

Health care is a basic necessity. We are ready to implement health care services on
reserves, but the federal government is not. New federal legislation should enable us to
take control of this area. (Anishinabek Nation, Special 15:12)

The interrelationship between health care and other factors such as housing, community
infrastructure and employment cannot be denied. An unhealthy child with low resistance to
eolds and infections is unlikely to do well at school. An alcoholic mother may bear a child
suffering from fetal alcohol syndrome. Health, in particular preventive health care, is an
essential component of many other programs and activities. A holistic approach is required.
lndian communities would like to have the power to establish priorities, co-ordinate the over-
all planning, and control the process of health care.

Our goals are to improve the health status of the Blackfoot Band with emphasis on preven-
tive health; advocate and encourage health careers, professional or para-professional,
among the young Blackfoot; establish a tribal health planning process—that is taking
place now; initiate a comprehensive communications system; establish rapport within and
among all sectors. I would underline that word rapport, because this is something that not
too many sectors talk about. Rapport means to exist in harmony. (Blackfoot Band, Sub
8:85)

Health has a less tangible dimension, not demonstrable by death or disease statistics, yet
just as real and possibly more important. lt is ‘whole health’, involving spiritual, social,
and mental aspects of the life of the individual and the community. It is ‘health as
strength’. . . as togetherness, as harmony with the universe, as self-esteem, pride in self and

group, as self-reliance, as coping, as joy in living. . . (W.G. Goldthorpe, report tabled by
Kwakiutl Tribal Council, Special 5)

Health and Welfare officials also supported a holistic approach:

I think a healthy community is one that looks at itself in a rather comprehensive and holis-
tic way, and that the concept that by more medieine we can improve the indices of health
has its limitations. I think we are firmly committed to the view that real improvements,
dramatic improvements in the health of many native communities, have to come about as
a result of a multiplicity of things: as a result of improvement in the employment situation,
improvement in the economic situation, improvement in the housing situation, improve-
ment in the community infrastructure. We do not think we can improve those very tragic
statistics solely by the application of contemporary medieine. The renewal has to come
from within. (Sub 6:37)

The provision of health services is an area where the importance of traditional practices
must be emphasized. The Chiniquay Band, for example, expressed concern that health ser-
vices on the reserve have a corporate organizational structure that “is foreign to our tradi-
tional ‘clan’ social structure, and therefore causes family conflicts”. (Written, Submission)
The importance of traditional medieine was pointed out by NHW officials and others.

It is clear that the Kwawkewlth people were a lot healthier before this last century. Their
health has declined with suppression of their language and culture, with the anti-potlatch
laws. . . Their health has declined with the death of the last Kwawkewlth medieine man,
with the forgetting of the healing powers of the herbs and barks around them. (W.G.
Goldthorpe, report tabled by Kwakiutl Tribal Council, Special 5)

We have come to appreciate very much the relevance and the utility of traditional
approaches, particularly to mental health problems—approaches which address the suicide

34

rate, approaches which address addiction problems. We believe that. in areas such as those
the application of traditional medieine and native culture perhaps can be more suecessful
than anything we could offer in terms of contemporary psychiatrie approaches to those
kinds of problems. (Department of National Health and Welfare, Sub 6:29-30)

Unlike the testimony on education and child welfare, where possible systems for deliver-
ing services were described, witnesses did not specify how health care services should be pro-
vided. The emphasis was on control of the system rather than designing new systems. Indian
witnesses emphasized that, as a guiding prineiple, lndian First Nations should have flexibil-
ity in establishing arrangements for the delivery of services in general. This could involve
negotiating with provinces or private enterprises to provide the actual services or providing
them themselves. Control would remain with the Indian First Nation.

Several lndian First Nations have already taken steps to assume control over health
matters. The Alberta lndian Health Care Commission was established in 1980 to act as a
province-wide board of Indian health. The Cree Board of Health and Social Services, set up
pursuant to the provisions of the James Bay and Northern Quebec Agreement, was created
so that the Cree would have local and regional control of health and social services. But, as
noted earlier, ill-health is not an isolated issue that can be resolved with more and better
medical facilities. Through the exercise of lndian self-government lndian people will be able
to control the other problems to which ill-health is linked, in this way improving the state of
lndian health. i

In summary, many witnesses zisserted that there are matters that must be controlled b}:
lndian communities to ensure their cultural survival. Jurisdiction over such areas as educa-
tion, child welfare and health is considered essential. By exercising control over these mat-
ters, Indian people could ensure that future generations were able to preserve and enjoy their
culture and heritage. The balance of this report is devoted to recommendations that will help
to create the conditions under which these goals can be achieved.

35

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CHAPTER 4

SELF -GOVERNMENT FOR
INDIAN FIRST NATIONS

The First. Ministers’ Conference on Aboriginal Constitutional Matters, held in Ottawa
in March 1983, marked an important step toward the recognition of lndian First Nations in
the Canadian Constitution. As Prime Minister Trudeau observed in his opening statement:

Clearly our aboriginal peoples each occupied a special place in history. To my way of
thinking, this entitles them to special recognition in the Constitution and to their own
place in Canadian society, distinct from each other and distinct from other groups who,
together with them comprise the Canadian citizenry.

The Committee fully endorses the Prime Minister’s remarks. The Committee further
believes that special and distinct recognition can best be manifested by Indian First Nation
governments having a unique place in the Canadian political system and the Constitution.

The Need For A New Relationship

For thousands of years prior to European immigration, North America was inhabited
by many different self-governing aboriginal peoples, speaking many languages and having
widely differing cultures and economies. The Royal Proclamation of 1763, which formalized
British colonial policy for North America, recognized this situation.

Over the years, however, the initial relationship between Indian people and the British
Crown changed. In the evolution of Canada from colonial status to independence, the Indian
peoples were largely ignored, except when agreements had to be made with them to obtain
more land for settlement.

The lndian peoples played no part in negotiating Confederation, or in drafting the Brit-
ish North America Act of 1867 which, under section 91(24), assigned Iegislative authority

39

with respect to “lndians, and Lands reserved for the lndians” to the federal government. The
government assumed increasing Iegislative control over Indian communities, leading to The
Indian Act, I876, which, with minor modifications, remains in effect today. The result, over
the years, has been the steady erosion of Indian governmental powers.

Under the Indian Act, traditional Indian governments were replaced by band councils
that functioned as agents of the federal government, exercising a limited range of delegated
powers under federal supervision. The Indian Act also failed to take into account the great
diversity of Indian peoples and cultures and treated all lndians in Canada as a homogeneous
group. These two features of the Act prevail today.

The Committee’s extensive inquiry has confirmed that the current relationship between
Indian peoples and the federal government is unsatisfactory. Witness after witness spoke of a
“legacy of injustice, exploitation, bureaucratie insensitivity and non-Indian self-interest”.
(Special 5:63)

In Chapters 2 and 3 we showed that despite many well-meaning attempts to improve the
relationship, most Indian communities across Canada are characterized by abject poverty,
malnutrition, poor health, high infant mortality rates, minimal education, and economic
under-development. Chief David Ahenakew, National Chief of the Assembly of First
Nations, testified that “current federal policies and institutions are operating to reinforce
Indian poverty and dependence, rather than to promote self-sufficiency and self-determina-
tion. This course has taken an appalling toll in both human and financial terms.” (Sub 3:5)

lndian First Nation witnesses argued that far-reaching change was needed, change that
would amount to an entirely new relationship.

We could talk about inadequate housing, sewer systems, and fire protection well below
Canadian standards. We could talk about the lack of economic development and high
unemployment rates in our communities. We could talk about the specifics of government
programs, policies and regulations. We could talk about how the energy and talent of
Indian communities are drained and wasted, reacting to the self—perpetuating bureaucracy
of your government.

However, we are not here to talk about the potholes on the road to self-government, which
we can best pave ourselves with the jurisdictional authority to do so. We wish to put for-
ward suggestions for creating a new order in thc Canadian/aboriginal relationship.
(Nishga Tribal Council, Special 7:34)

Thoughtful and knowledgeable non-Indian observers have come to similar conclusions.
Speaking in 1974, Dr. Lloyd Barber, at that time Commissioner of Indian Claims, said:

. . .Native people are seriously talking about a distinctly different place within Canadian
society, an opportunity for greater self-determination and a fair share of resources based
on their original rights. No doubt this will require new and special forms of institutions
which will need to be recognized as a part of our political framework.

The 1979 report of the Pepin-Robarts Task Force on Canadian Unity, A Future
Together, also pointed to the need to act:

It is now appropriate that specific attention be paid to the issue of the constitutional posi-
tion of the first Canadians. More specifically, both provincial and federal authorities
should pursue direct discussions with representatives of Canada’s lndians, Inuit and Métis,

40

with a view to arriving at mutually acceptable constitutional provisions that would secure
the rightful place of native people in Canadian society.

While this kind of awareness is not shared by Canadians generally, a witness drew the
Committee’s attention to the “dramatic change in the last few years”.

[The report of the] Mackenzie Valley pipeline inquiry in 1977 discussed the concept of
Indian self-determination and called for a social contract between the Indian nations and
the political institutions of Canada. Since then, the need for the special constitutional
provisions on aboriginal rights and title has been recognized by the Canadian Bar Associa-
tion in their report, Towards a New Canada; by the Pepin-Robarts task force on national
unity; by the Quebec governments white paper, Quebec-Canada: A New Deal; and by the
Quebec Liberal Party proposal, A New Canadian Federation. In February 1979, the
Prime Minister and the provincial premiers agreed that the Indian peoples had to be con-
sidered in a process of constitutional change. They agreed to add a new item to their
agenda: Canada’s native peoples and the Constitution. On September 28, 1979, Prime
Minister Clark agreed that the National Indian Brotherhood would have a full, equal and
ongoing role in federal-provincial discussion on that agenda item. In March of this year
[1983] a First Ministers’ Conference will convene to discuss the definition of indigenous
aboriginal nations’ aboriginal and treaty rights. (Bella Coola District Council, Special
6:80)

Indian peoples in Canada must control their own affairs. A new relationship is urgently
needed that respects the diversity, the rights and the traditions of Indian First Nations.

I think the message. . .is to make absolutely sure. . .we are talking about relationships that
respect the traditions and culture of those people. . .without trying to impose on them some
kind of non-lndian relationship. If we can do that on the basis of mutual respect and trust,
then l think we have gone half way to solving a lot of the problems we have. (Native
Council of Canada, Sub 7:9-10)

A new relationship would be beneficial to Canada; it would eliminate the tensions, the
inefficient use of funds and the unacceptable social conditions that keep Indian peoples from
contributing to the country’s progress. In a democratic age, it is incongruous to maintain any
people in a state of dependency. The federal government, particularly as represented by
Department of Indian Affairs and Northern Development, would no longer find itself in a
conflict of interest situation, being called upon to defend Indian interests while also being
expected to represent the federal position.

Indian people would likewise benefit from a new approach. Ending dependency would
stimulate self-confidence and social regeneration. Instead of the constant and debilitating
struggle now faced by band councils, which are expected to administer policies and programs
imposed by the Department of Indian Affairs, Indian First Nation governments would get on
with the business of their own governmental affairs. Self-government would also simplify the
political position of Indian leaders, who are now caught between the demands of their elec-
tors and those of the federal government, which funds their programs.

1. The Committee recommends that the federal government establish a new relationship
with Indian F irst Nations and that an essential element of this relationship be recognition of
Indian self-government.

Many witnesses emphasized that, in seeking to establish Indian First Nation govern-
ments, they did not wish to create divisions that would weaken Canada. Their object is to
change the relationship of lndian First Nations to other governments, not to fragment the

41

country. In their opinion, the exercise of political self-determination is a necessary step
toward national unity. Canada would be strengthened, not weakened as a result.

There must be unity, if you will, or cohesiveness in this country. There must never be any
dismemberment of the country. I do not want to get into these western separatists, or Que-
bec separatists, or any separatists in the country. I can assure that you we will fight that.
We do not want our country to be dismembered. Just because what we are talking about is
separate, putting into place a separate order. . . that does not mean that we are going to
change the nature of this country. Certainly we are going to change the nature of law-
making, administering, policy-making, and so on.

Yes, the provinces must become involved—not because the Constitution says so, but
because of the very nature of the way in which this country is structured. We can say that
the Constitution compels us to have the provinces participate and be involved every step of
the way. . . But that is not the real reason, in our opinion. The reason is because they have
governments within the provinces or territories, therefore, they too must change their laws,
their practices, to accommodate ours; and it must be done fairly. . . We do not have any
hang-ups right across the country about the very thing that we are discussing now.
(Assembly of First Nations, Sub 3:28)

International Experience

To determine whether the experience of other countries with indigenous populations
could be helpful to Canada, the Committee commissioned research on international policy
and practice. The study concluded that arrangements in other countries have not generally
provided opportunities for genuine self-government by indigenous peoples. No international
models were found that would be readily transferable to Canada.*

Some aspects of the relationship between Indian tribes and the United States govern-
ment, however, were of particular interest to the Committee. Early judicial rulings in the
United States recognized the sovereignty of Indian nations and the fact that it stemmed from
their own independence, not from the delegation of power by any external government.
Tribes were described as “domestic dependent nations” and retain to this day some sovereign
powers of self-government. The legal tradition in Canada is very different.

To gain a better understanding of this relationship, the Committee travelled to the
United States to meet with U.S. government officials and Indian leaders. Just prior to the
Committee’s visit, President Ronald Reagan issued a statement on Indian policy, which read
in part:

When European colonial powers began to explore and colonize this land, they entered into
treaties with sovereign Indian nations. Our new nation continued to make treaties and to
deal with Indian tribes on a government-to-government basis. Throughout our history,
despite periods of conflict and shifting national policies in Indian affairs, the government-
to—government relationship between the United States and Indian tribes has endured. The
Constitution, treaties, laws, and court decisions have consistently recognized a unique
political relationship between Indian tribes and the United States which this Administra-
tion pledges to uphold.

* Greenland does, however, offer some possibilities as a model for the Eastern Arctic.

42

While the tone of this pronouncement contrasts sharply with Canadian policy, the Com-
mittee learned that in practice Indian people in the United States face many of the same
problems experienced by Indian people in Canada.

The Committee was interested in the work of such U.S. Indian organizations as the
Council of Energy Resource Tribes and the American Indian National Bank. (See Appendix
G for a complete list of organizations with which the Committee met during its visit.) A visit
to several pueblos in New Mexico, including the opportunity to observe a meeting of the
Eight Northern lndian Pueblos Council, enabled the Committee to see a unique Indian gov-
ernmental system in operation in the United States today. The development of Indian law
and the advocacy of Indian interests before the courts——supported by the Institute for the
Development of lndian Law, the Native American Rights Fund, and the Indian Law
Resource Center——-have had a notable effect on recent judicial rulings concerning Indian
rights. These initiatives have helped to improve the situation of Indian people in the United
States. The Committee gained valuable insights from its visit but concluded that Canada
must develop its own approach.

Establishing Self-Government

In considering a new relationship, the Committee found itself at the beginning of a pro-
cess with the potential for significant change. Current legal assumptions offer an inadequate
basis for the new relationship. Band councils do not form part of the constitutional structure
in the same way as federal and provincial governments do. They exercise only those powers
permitted by the Indian Act. Accordinglto traditional constitutional interpretation prior to
the recognition and affirmation of “existing aboriginal and treaty rights” in the Constitution
Act, 1982, all primary Iegislative powers were deemed to be vested either in Parliament or in
provincial legislatures. The inclusion of existing aboriginal and treaty rights in the Constitu-
tion may have altered this situation. If, as many assert, the right to self-government exists as
an aboriginal right, there could be a substantial re-ordering of powers. lndian governments
may have implicit Iegislative powers that are now unrecognized.

Many Indian witnesses asserted that rights implicitly recognized in the Royal Procla-
mation of 1763 and in the treaties provide a basis in law for true Indian governments to be
recognized by the Canadian government and for Indian people to exercise their inherent
right to self-government. The Royal Proclamation formalized the process through which the
British people and authorities were to relate to Indian nations and tribes. In so doing, it rec-
ognized aboriginal title and rights to the land and placed limits on the way colonial govern-
ments could secure land for settlement. Witnesses argued that the Proclamation also implied
recognition by the Crown of autonomous lndian goverlnments. Judy Sayers, speaking for the
Canadian Indian Lawyers’ Association, asserted that U

an inherent right [to self-government] was preserved in the Royal Proclamation of 1763
and acknowledged by Lord Denning.* . . .Any rights or freedoms recognized by the Royal
Proclamation of 1763 are now guaranteed in the Constitution Act, 1982, section 25.

* Lord Denning, Mastcr of the Rolls, is an English judge who heard an important case brought in the Court of
Appeal of England by the Indian Association of Alberta, the Union of New Brunswick lndians and the Union
of Nova Scotia lndians in 1982 prior to patriation of the Constitution.

43

She concluded with the statement, “There is in law and history a definite basis for self-deter-
mination and self-government.” (Sub 13:6)

The critical importance of the Royal Proclamation has been affirmcd by the courts. As
Mr. Justice Hall stated in the case of Calder v. Attorney General of British Columbia
(1973):

This Proclamation was an Executive Order having the force and effect of an Act of Parlia-
ment and was described. . .as the “Indian Bill of Rights”. Its force as a statute is analo-
gous to the status of Magna Carta which has always been considered to bc the law
throughout the Empire. . . .The Proclamation must be regarded as a fundamental docu-
ment upon which any just determination of original rights rests.

The lndian Association of Alberta submitted a legal opinion by Profcssor E.P. Mcndes
entitled “Are There Constitutional and lnherent Rights of Indian Self-Government?” lt
noted that “the Assembly of First Nations and the lndian Association of Alberta believe that
their right to Indian self-government is first and foremost protected by thc Royal Proclama-
tion.” It went on to interpret Lord Denning’s judgement in the following terms:

Lord Denning. . .seemed to infer that thc colonising British authorities scemed to have rec-
ognized this inherent right of self-government by traditional and customary laws of thc
native peoples even at the time of the passing of the Royal Proclamation of 1763, and that
the Royal Proclamation recognized the right of the native peoples of British North
America to govern themselves by their own traditions and customary laws. (Sub 1 1A:6)

The opinion concluded with this assessment: “The native peoples of Canada could put a per-

suasive case forward that there is an inherent right of native self-government on lndian
lands”. (Sub l1A:l5)

The Constitution Act, I982 clearly represented a forward step by recognizing and
affirming existing aboriginal and treaty rights. But it did not define those rights. Lord Den-
ning recognized the value of constitutional entrenchmcnt but also noted thc importance of
holding the Constitutional Conference provided for in section 37 of thc Act, as this was a
process through which aboriginal and treaty rights could be defined more clearly. It might
well be argued that it is not the rights of lndian people that are ill-defined, but thc recogni-
tion of these rights in Canadian law that has been ill-defined.

The definition of these rights has already been the subject of one Constitutional Confer-
ence (Ottawa, March 15-16, 1983). In the 1983 Constitutional Accord on Aboriginal
Rights, the product of that Conference, the participants agreed to hold further confcrences
to discuss constitutional matters directly affecting the aboriginal peoples of Canada, includ-
ing self-government.

2. The Committee recommends that the right of Indian peoples to self-government be
explicitly stated and entrenched in the Constitution of Canada. The surest way to achieve
permanent and fundamental change in the relationship between Indian peoples and the fed-
eral government is by means of a constitutional amendment. Indian First Nation govern-
ments would form a distinct order of government in Canada, with their jurisdiction defined.

A constitutional amendment would, however, require the approval of the federal govern-
ment and seven provinces constituting 50 per cent of the population. Since the constitutional

44

process may be protractcd, the Committee considered other courses of action for achieving
Indian self-government: the courts, the bilateral process and Iegislative action.

The Courts

The Committee considered thc usefulness of a judicial ruling to establish whether self-
government is an existing aboriginal right and therefore a right of lndian First Nations in
Canada.

The courts may eventually rule on this issue. An Indian First Nation government might
assert jurisdiction as against the federal or a provincial government and seek to have its right
to exercise that jurisdiction challenged in the courts. The issue might also arisepcripherally
in another case. Obtaining a judgcment in the Supreme Court of Canada is a very lengthy
process. The fundamental issue may not be directly addressed. In any cvent, a single court
ruling could not define the full scope of Indian government or even design a new structure
accommodating Indian government, although it might provide some impetus to political
action. Clearly, it is an option that Indian First Nation governments might pursue, and they
are free to do so. But the Committee regards this procedurc as difficult to cxccutc and uncer-
tain in its outcomc.

The Bilateral Process

lt was strongly argued before the Committee that an lndian order ol‘ government
already exists in Canada; that the federal government already has thc authority to recognize
lndian First Nations as self-governing entities without constitutional change; and that
through bilateral discussions, jurisdictional arrangements could bc agreed to between thc
federal government and Indian governments.

The proper way to define and establish relations between our lndian governments and the
rest of Canada is not through legislation or constitutional amendmcnts, but by a basic
political agreement, a covenant or social contract. A basic compact will respect the princi-
plc of the equality of peoples. It can be an integral part of thc Canadian Constitution while
it serves as a constitution confederating Indian nations in Canada. But as a social contract
it cannot be changed without the consent of both sides. As a part of the constitutions of
both parties, each side will be required by Canadian law, by traditional aboriginal law and
by international law to respect its terms. (Bella Coola District Council, Special 6:81)

The treaty-making process provides both the basis of, and a model for, thc bilateral pro-
cess. In thc Indian view, treaties guaranteed the right to self-government:

The right to lndian government was guaranteed by our ancestors under the spirit and
intent of the treaties. Treaty No. 4 of 1874 stipulated that the Indian way of life would not
be changed but would survive in perpetuity. International law and basic principles of
human rights recognize that for a way of life to survive the people concerned must have
the right to develop politically in any direction they choose. This treaty guarantee
acknowledges the inherent right to self-government, which llows from the choice of the
people. (Starblanket Band, Special 1 1:9)

Witnesses also pointed out that the Royal Proclamation of 1763 recognized the exist-
ence of Indian governments and nations in its reference to “the several Nations and Tribes
with whom We are connected and who live under Our protection”.

45

The treaty-making process also provided a direct government-to-government link
between the Crown and Indian peoples. This, in the Indian view, was confirmed by the set-
ting aside of “lndians, and Lands reserved for the lndians” in a unique manner when the
British North America Act was passed in 1867. They therefore viewed the passage of suces-
sive Indian Acts as a misinterpretation of federal authority. Instead of continuing to enter
into agreements with Indian nations, the federal government legislated over them and
imposed restrictions on them.

Witnesses asserted that the treaty-making process could be revived, and that the federal
government and Indian First Nations could make all necessary arrangements by agreement,
Therefore the bilateral process was seen by some as the preferred route to self-government.
No legislation and no further constitutional change would be required to proceed in this
manner.

Certainly, the federal government continued to use the treaty process until well after
World War II. For example, it accepted adhesions to Treaty 6 in 1950, 1954 and 1956.
Treaty-making also implies recognition of Indian political structures. One drawback to rely-
ing on the treaty-making process, however, is that the courts, at least in earlier judgements,
usually described the treaties as ‘contracts’ and not as the equivalent of Iegislative or consti-
tutional documents. I

Parliament has not attempted to exercise the full range of its powers under section
91(24), which sets apart “lndians, and Lands reserved for the lndians”. Consequently, the
limits of these powers have not been established. In the past, Parliament has, through the
Indian Act, legislated in a manner that has regarded Indian communities as less than muni-
cipalities. On the few occasions where it has legislated in a more wide-ranging manncr——-—for
example, with respect to liquor, which is a provincial responsibility when not related to Indi-
ans——the courts have upheld the exercise of its powers.

The recognition and affirmation of “existing aboriginal and treaty rights” of Indian
peoples in Section 35 of the Constitution Act, 1982 changed the constitutional position of
Indian First Nations, but the implications of the change are not yet clear. The affirmation of
the special relationship and the reference to a bilateral process in the 1983 Constitut-ional
Accord are further important developments in relations between Indian First Nations and
Canada.

3. While the Committee has concluded that the surest way to lasting change is through
constitutional amendmcnts, it encourages both the federal government and Indian First
Nations to pursue all processes leading to the implementation of self-government, including
the bilateral process.

Legislative Action

In its Order of Reference, the Committee was asked particularly to consider “Iegislative
and administrative change”. The Committee gave careful consideration to legislation as an
interim solution that would permit speedy action and might enhance the prospect for even-
tual constitutional change.

46

Proposals for Legislation Presented to the Committee

The Minister of lndian Affairs presented a discussion paper called The Alternative of
Optional Indian Band Government Legislation. These suggestions for new Iegislative and
administrative arrangements and witnesses’ reactions to them were discussed in Chapter 2.

The Committee’s assessment is that the DIAND approach would be unacceptable as the
basis of a new relationship for a variety of reasons. First, it was described by the Minister,
and perceived by the witnesses, as a revision within existing arrangements which have been
found to be unsuccessful and limiting; it is a further extension of ‘devolution’, which has been
rejected. The proposal envisages Indian governments as municipal governments and fails to
take account of the origins and rights of Indian First Nations in Canada. A major objection
is that permission to opt in would be a favour granted to bands that the Minister of Indian
Affairs, in his discretion, deemed to be sufficiently “advanced”. The paternalistic role of the
Department would be maintained.

4. The Committee rejects the Departments band government proposal. Although there
have been years of consultation, there was no general agreement of Indian representatives,
and the proposal finally emerged from a unilateral government decision.

Several bands and organizations made constuctive and creativc suggestions for legisla-
tive change. In some cases, these proposals were based on the Indian Act. For example, the
Union of New Brunswick lndians proposed increasing the powers of band chiefs and councils
and removing all possibility that provincial laws would apply on reserves, but otherwise leav-
ing the Indian Act intact. (Special 23:9) The Sawridge proposal outlined a complete revision
of the Act, greatly increasing the powers of the Chief-in-Council, vesting all assets in the
Chief-in-Couneil in trust for the use and benefit of the band, and revising thc membership
provisions. (Sub 11:14-16) Many other bands and organizations explicitly rejected any
“tinkering with the Indian Act”.

While the proposed amendments to thc Indian Act would make much-needed improve-
ments, the Committee believes that a more far-rcaching approach, including legislation
totally different from the Indian Act, would accommodate the special concerns of all groups.
Legislation such as the Committee is proposing could be implemented quickly and should
benefit all bands. l

5. The Committee does not support amending the Indian Act as a route t0 self-govern-
ment. The antiquated policy basis and structure of the Indian Act make it completely unac-
ceptable as a blueprint for the future.

Witnesses also discussed entirely new proposals that they had developed to meet their
particular needs. The Sechelt Band presented draft enabling legislation that would permit
bands that met certain criteria (demonstrated administrative capacity, appropriate struc-
tures and practices, experience and readiness) to opt out of the Indian Act and operate under
a band charter that would have the force of law for that band. This approach had the explicit
support of a few band councils appearing before the Committee, since it would allow early
relief from the limitations on their powers and jurisdiction imposed by the Indian Act. The
Committee understands the objectives of the Sechelt Band and suggests that the proposal for
legislation outlined in the next few pages would meet these objectives and, in fact, go much
further.

47

The Grand Council of the Crees described recent negotiations leading to a proposed
Cree-Naskapi Act, as a follow-up to the James Bay and Northern Quebec Agreement. They
emphasized the importance of this legislation to Cree self-government, but stressed that the
draft represents “Cree aspirations and the Cree position”. (Special 29:57) There was no
implication that this legislation should be a model. On the contrary, they made it clear that
they explicitly rejected departmental assumptions that this proposal would be used as a
model for self-government legislation, although other Indian First Nations would be free to
adopt appropriate elements:

There has been a tendency on certain occasions during the discussions to make reference
to the application of what we are talking about to other areas, other bands, and the prob-
lems that would entail: the precedents being set, the difficulties faced by the Department if
the same regimes, the same rights, the same structures were applied elsewhere. We have
been, I think, very consistent on that in reminding the Department that this is special
legislation being enacted in virtue of section 9 of the James Bay and Northern Quebec
Agreement. That is what it is. lt is not amendments to the Indian Act. It should have no
direct impact on other Indian people. (Special 29:86)

The Committee also had before it several proposals for a series of subject acts———for
example, an Indian Education Act, an Indian Child Welfare Act, and an Indian Corpora-
tions Act. On a national basis, this approach would require passage of numerous pieces of
complex legislation. The resulting legal framework might be too restrictive to meet the
diverse needs of Indian First Nations. While acknowledging that they could be useful guide-
lines for Indian First Nations developing legal codes, the Committee rejects the use of a ser-
ies of subject acts as the basis for Indian self-government.

The Committee supports the objectives of all these bands and organizations and recog-
nizes that their different approaches represent specific ways to escape from unsatisfactory
current situations. Their efforts showed the potential for innovative solutions designed to
meet specific needs. Within the approach suggested by the Committee, a11 such proposals
could form the basis of new arrangements for these groups.

6. The Committee is convinced that any legislation that could apply generally must offer
a framework flexible enough to accommodate the full range of governmental arrangements
that are being sought by Indian First Nations.

Is Legislation Necessary or Useful?

Many witnesses opposed any legislation prior to the recognition of self-government
and/or the settlement of land claims or treaty matters, believing that such legislation would
be restrictive rather than expansive. The Committee recognizes the validity of these concerns
and has taken them into account in proposing legislation as an important part of the process
of federal recognition of lndian governments in Canada and, ultimately, of Constitutional
entrenchmcnt.

A broad framework of general principles would appear to be the only model that would
both permit consensus to be achieved and be flexible enough to accommodate a great diver-
sity of arrangements, ranging from those set out by the Sechelt Band to those based on tradi a
tional laws and customs. Not only would Indian self-government be enhanced, but the spe-

48

cial relationship of the federal government with Indian peoples, and any residual federal
responsibilities to them, would be reaffirmed.

No specific recommendations can be made without going eontrary to the spirit of a new
relationship. The Committee believes that its proposals would permit both the federal gov-
ernment and Indian peoples to build toward strengthened Indian governments. The Commit-
tee wishes to emphasize, however, that the only acceptable approach to legislation is that it
be developed jointly by designated representatives of lndian First Nations and the federal
government. It must be the responsibility of the First Nations themselves to select a method
of designating representatives to negotiate on their behalf.

The New Context for Legislation

Under section 9l(24) of the Constitution Act, I867, Parliament has exclusive power to
legislate in relation to “Indians, and Lands reserved for the lndians”. The power is exclusive
but not unfettered. Parliament’s actions are limited by the recognition and affirmation of
existing aboriginal and treaty rights.

In his decision in the lndian Association of Alberta case, Lord Denning discussed the
rights guaranteed to lndians and the constraints on Parliament resulting from these guaran-
tees. After noting the protection of rights in the new Constitution, and the importance of
defining these rights more clearly, he went on to say:

There is nothing, so far as l can see, to warrant any distrust by the lndians of the Govern-
ment of Canada. But, in case there should be, the discussion in this case will strengthen
their hand so as to enable them to withstand any onslaught. They will be able to say that
their rights and freedoms have been guaranteed to them by the Crown——originally by the
Crown in respect of the United Kingdom———now by the Crown in respect of Canada-but,
in any case, by the Crown. No Parliament should do anything to lessen the worth of these
guarantees. They should be honoured by the Crown in respect of Canada “so long as the
sun rises and the river flows”. That promise must never be broken. (p. 99)

Any proposed legislation must therefore be cognizant ofaboriginal and treaty rights and
take account of the process of defining them further, since legislation must conform to con-
stitutional standards.*

With respect to lndians, the Constitution Act, I982, recognizes and affirms their exist-
ing aboriginal and treaty rights (s. 35) without defining what those rights might be. Consti-
tutional matters directly affecting aboriginal peoples have been the subject of one Constitu-

tional Conference, and there will be future confcrences to discuss these matters. This is the
“ongoing process”.

In addition, the guarantee of rights and freedoms in the Canadian Charter of Rights
and Freedoms is not to “be construed so as to abrogate or derogate from any aboriginal,
treaty or other rights or freedoms that pertain to aboriginal peoples”, including any rights or
freedoms recognized by the Royal Proclamation of October 7, 1763 (s. 25 of the Charter).

* “The Constitution of Canada is the Supreme law of Canada, and any law that is inconsistent with the provi-

sions of the Constitution, is, to the extent of the inconsistency, of no force or effect.” (Constitution Act, I982,
s. 52(1))

49

The Constitutional Accord puts self-government on the agenda for discussion at future
constitutional confcrences. The Prime Minister alluded to possible new constitutional
arrangements for self-government by aboriginal peoples; Indian groups take the very strong
position that the right to self-government forms a part of aboriginal rights and must be rec-
ognized. Legislative proposals must be forward-looking, designed to set appropriate long-
term policy. It can therefore be argued that both the procedures and the substance of the
confcrences on aboriginal rights should have a bearing on any proposed Iegislative action. In
the meantime, policies and legislation should be brought forward that will further self-gov-
ernment.

7. The Committee recommends that the federal government commit itself t0 constitu-
tional entrenchmcnt of self-government as soon as possible. In the meantime, as a demon-
stration of its eommitment, the federal government should introduce legislation that would
lead to the maximum possible degree of self-government immediately. Such legislation
should be developed jointly. ‘ l

The Committee is proposing a means through which the people of a First Nation might
have their government recognized. The entire process should be worked out in negotiations
between federal government representatives and designated representatives of Indian First
Nations, leading to an arrangement that would, for greater certainty and clarity, be set out
in legislation. The outlines of the proposal follow, beginning with a discussion of the basic
political unit. 1

50

STRUCTURES AND

POWERS OF INDIAN
FIRST NATION

3V (X75.

GOVERNMENTS

azlzzaza:,…zrfæz,

CHAPTER 5

STRUCTURES AND POWERS OF
INDIAN F IRST NATION GOVERNMENTS

The Starting Point

Before the arrival of European settlers in Canada, Indian tribes, nations and confedera-
cies occupied virtually the whole territory, with boundaries defined and confirmed by custom
and treaties. Within nations, families were grouped together in villages, towns, clan units and
bands. As settlers spread across the country and occupied the land, Indian nations were
broken up into smaller units separated one from another, and their economies were dis-
rupted. In the late nineteenth century, these units were defined as ‘bands’, and a governmen-
tal system of ‘band councils’ was prescribed for lndian communities by the federal govern-
ment in the Indian Act. Bands are now the only Indian political unit recognized in Canadian
law.

Witnesses were all agreed that the movement toward self-government must begin with
the band. i ‘

The primary political unit of Indian government is the band. . . through which Ilows the
authority to govern and implement all powers of political autonomy through a true and
democratic process. (Federation of Saskatehewan lndian Nations, Special 1 1:8)

I think it is safe for the Committee to think initially of each individual ‘hand’, as the
Indian Act calls them, as a ‘First Nation’. (Assembly of First Nations, Special 9:10)

Accordingly, the Committee concluded that the band has to be regarded as the point at
which to begin the process leading to self-government.

Witnesses also insisted that there be flexibility. Testimony indicated that some bands
will look to their original nation to constitute the primary political unit. In a few instances,
where different peoples have been brought together to form one band, a band may separate
into two or more units.

53

uinma…mnv…n.,.*..q.w.-.m,. i. s. “.- ….. . . ‘ .. ‘ ‘ n“ _ a .-«

8. In the transition from the I ndian Act t0 self-government, the Committee recommends
that the Starting point be the band, with its membership newly defined. The federal govern-
ment should leave it to each band to decide whether its people would constitute themselves
as an Indian government, or would join with others to form an Indian government of which
the band would be a part.

Membership

Band membership has for many years been determined not by Indian people but by fed-
eral standards, which have excluded some people who properly belong. In the process of con-
stituting a First Nation, the true community identified with the band must be consulted.
Although the primary unit would therefore be based on current band groupings, restrictive
Indian Act definitions of membership would be inappropriate in the context of self-govern-
ment. The number of people involved in the process would be greater than the present mem-
bership through the inclusion of some people now excluded from membership by the opera-
tion of the Act.

Witnesses were unanimous that each lndian First Nation government should determine
its own membership. The Indian Act now contains detailed and complicated provisions defin-
ing membership in an Indian band. Enforcement of these provisions frequently means that
people who do not meet these criteria must move away from the community, thus leading to
the loss of cultural identity by subsequent generations. It has been argued that control over
membership is not only a right, but that it is also essential to ensure cultural, linguistic and
ethnie survival.

While the general thrust of testimony concentrated on the right of each First Nation to
determine its own membership, opinions differed as to whether Indian governments should,
prior to establishing membership regulations, be required to reinstate people who have been
removed from band membership by the operation of the Indian Act. Witnesses representing
the Native Women’s Association of Canada and the Native Council of Canada advocated
this position:

[Our basic position is that] . . . Indian governments determine their own membership, but
only after all of those so titled have been listed or relisted on their respective band lists.
(Native Women’s Association of Canada, Special 33:8)

The Native Council of Canada will continue its role of pressing for the rights of the non-
status lndians and in cases where this situation [loss of status] has been created by the
Indian Act, that reinstatement be automatic, upon the choice of the individuals, families or
bands so affected.

Only after this has been provided for do we fully subscribe to the prineiple that it is up to
each Indian government, traditional or Iegislative, to determine its own membership.
Again, this reservation is only with respect to Indian persons, individually or collectively,
who have lost status because of the Indian Act. (Native Council of Canada, Sub 7A:9)

Representatives of Indian band governments rejected any federal intervention in llll
matter of reinstatement.

It is up to the Indian governments across the country to resolve that and to put into place
some just means of making sure that there is reinstatement or whatever it is they want to
do. (Assembly of First Nations, Special 3:31)

54

(D

o-nn ‘î KJ F?‘ l

The following procedurc might be adopted by Indian First Nations to determine mem-
bership or citizenship:

1. The people in each community would begin with the Indian Act list, plus those who
might be reinstated by any changes in legislation.

2. These people would get together to ask who might be missing and to include those
they wished to include.

3. These people would agree on membership criteria and thus decide who else might be
included or excluded. The criteria should be in accordance with the standards in
international covenants concerned with human rights.

4. These same people would agree on appeal procedures and mechanisms.

5. The whole group would then determine their form of government and apply for
recognition. ‘

9. The Committee asserts as a prineiple that it is the rightful jurisdiction of each Indian
First Nation to determine its membership, according to its own particular criteria. The
Committee recommends that each Indian First Nation adopt, as a necessary first step to
forming a government, a procedurc that will ensure that all people belonging to that F irst

Nation have the opportunity of participating in the process of forming a government, with-
out regard to the restrictions of the Indian Act.

Testimony was received about the need for appeal procedures for those who had been
excluded from membership. Several witnesses spoke about membership codes in which such
procedures were spelled out. Among the suggestions were the use of a referendum, appeal to
«a council of elders, or an Indian membership court. Although the exact nature of the appeal
process should be up to each Indian First Nation, the process for recognizing Indian First
Nation governments could include verification that an appeal mechanism was in place to
protect individual rights.

Several witnesses suggested a two-tier system, which would allow Canada to recognize
individuals as lndians even though they might not be recognized by an Indian First Nation
as a member. The United Native Nations, for example, spoke about reinstatement of status
on a general list, but noted that it would be up to each band to decide whether to admit a

person to band membership. (Special 17:21) The Association of Iroquois and Allied lndians
set out the following structure:

The Association recommends a two-tier system of status and membership.

0 Federal legislation would recognize all persons constitutionally “Indian” as lndians for the

purpose of Indian programs. It is acknowledged that not all programs will necessarily be
available to all lndians.

0 Indian governments will determine band membership for the purpose of voting, sharing in
Indian assets such as reserve lands, capital distributions, etc.

This, in effect gives the Indian government control over who shares in its communal assets.
In the corporate model, this is analogous to a closely-held corporation. In terms of the

55

present Indian Act, Indian status would be analogous to registration on the generallist,
while band membership would be analogous to registration on a band list. (Association of
Iroquois and Allied lndians, Special 16A:16-17)

Such an arrangement would involve benefits given by the federal government to
individuals; it is not a question involving Indian F irst Nation governments. The approach has

the merit of meeting the concerns of some witnesses without imposing anything on Indian
First Nation governments.

l0. The Committee recommends that the federal government consider using a general
list as a means of providing special status to people who are Indian for purposes of Indian
programs, but who are not included in the membership of an Indian First Nation.

Flexible Arrangements

It can be expected that several Indian First Nation governments may wish to combine
for various purposes—administrative, economic or cultural. Examples would be education
associations, economic development corporations, tribal councils, treaty organizations and
assemblies. Legislative authority would, however, be with lndian governments, and the pri-
mary relationship of the Indian people involved with the federal government would be
through those governments.

lt is important that arrangements under which the federal government relates to and
recognizes Indian governments allow for change over time. For example, the composition of
governments may change. Separate communities with separate governments may want to
merge and form a single government. Others may wish to separate and possibly regroup. In
the Committee’s view it would be desirable to accommodate this kind of change, which is
entirely natural. It would, however, be essential that the people of all groups concerned
approve.

As Indian people begin to plan their systems of government, it can also be expected that
a wide variety of governmental styles will emerge. These styles will refleet historical and tra-
ditional values, location, size, culture, economy, and a host of other factors. This diversity is
to be respected. It can further be expected that these developments will proceed at different
paces, and no time limits or pressures should be imposed. Indian governments will benefit
from each other’s experience. Needs will also change as conditions evolve and as structures
appropriate for one stage cease to be appropriate for another. The federal government should
be careful that any system for relating to and recognizing Indian First Nation governments
be able to accommodate changes in the structure and composition of those governments.

A special problem faces communities that have maintained close ties and a cultural base
but that are not now recognized as bands. They should be free to seek recognition as well as
to pursue negotiations to acquire a land base.

We do not want to prejudge the forms. We do not want to create a static form of govern-
ment by recognizing only what is there now. In other words, the prineiple of evolution,
evolving forms of government, is very important to us.

56

. . .Whatever the forms are, existing ones or some modified ones in the future, they have to
be made pursuant to Indian initiative and with Indian consent. (Joint Council of Chiefs
and the A11-Chiefs’ Budget Committee of the Assembly of Manitoba Chiefs, Special 3:67)

Constituting Indian First Nation Governments

The people themselves should determine the structure of government they wish to have.
They might do this through a process analogous to a constituent assembly. The structures of
government elaborated by this process might closely resemble the band council format or
they could be something very different. The essential feature is that the form of government
would in each case be decided upon by the free choice of the people involved.

ll. Eventually, Indian First Nation governments should be recognized and protected
through constitutional provisions. Until this can be accomplished, the Committee recom-
mends that the federal government introduce an Indian First Nations Recognition Act,
which would confirm the federal government’s willingness to recognize the maximum
amount of self-government now possible under the Constitution. It would establish criteria
to be met by any F irst Nation government wishing to be recognized as self-governing, such
as:

(a) demonstrated support for the new governmental structure by a significant majority
of all the people involved in a way that left no doubt as to their desires;

(b) some system of accountability by the government to the people concerned; and

(c) a membership code, and procedures for decision-making and appeals, in accord-
ance with international covenants.

The contents of the proposed Recognition Act should be developed jointly by the federal
government and designated representatives of Indian F irst Nations. It must be the responsi-
bility of First Nations themselves to select a method of designating representatives to
negotiate on their behalf. Aside from the development of acceptable and workable legisla-
tion, the federal government should refrain from becoming directly involved in community
decisions about self-government.

Some communities may. be divided on the extent to which they wish to move toward
self-government or on the form of government to be established. In such instances the com-
munities themselves should establish what they wish to do and who speaks for them. Only
then should the federal government become involved.

It will be important for each Indian First Nation to develop systems of accountability
that they might adopt or adapt and entrench in their governmental structures. Specifically
these might include provisions relating to:

0 financial and other information, annual reports, and audit reports that are readily
available and easily understood;

0 the reserving of certain rights and areas of interest in which officials would not have
authority to act without the people’s approval;

57

0 a system through which officials could be removed from office;

0 a system through which decisions that are felt to be unjust or improper could be
appealed; and

0 the protection of individual and collective rights.

The need for accountability systems was widely supported by Indian witnesses. They
insisted, however, that each Indian First Nation should develop its own arrangements.

. . .the Indian nations of the country would want nothing more than accountability under

their own terms to their own people. We must have that accountability to them. Right now

we do not. We do not have the right to account to our constituents. . . The Minister has all
_ the authority. (Assembly of First Nations, Sub 3:38)

Each Indian government, through its own internal legislation, administrative and legal
processes, will identify its own internal accountability, the means by which its own citizens
can exercise their democratic right to know about and control their own resources.
(Dakota Nations, Special 12:l20)

In summary, an Indian First Nation Recognition Act would demonstrate that the fed-
eral government was committed to recognizing the maximum amount of self-government
now possible under the Constitution. Specifically, it would:

(a) specify minimum criteria, such as popular support, accountability and a member-
ship code, and establish a process for verifying that Indian bands wishing to be rec-
ognized as self-governing had met these criteria; and

(b) elaborate a procedurc under which recognition would be aecorded.

In subsequent pages, the Committee suggests the establishment of a new ministry of

state to manage federal relations with Indian First Nation governments. As well, a panel
would be set up to make recommendations to the federal government regarding recognition.
Before elaborating these points, the Committee has additional proposals for legislation to put
forward.

Additional legislation would be needed authorizing the federal government to enter into
agreements with recognized Indian First Nation governments. It could be modelled on the
Agricultural and Rural Development Act of 1970, which authorizes federal negotiations
with the provinces. Through similar legislation, the federal government would be authorized
to sign agreements with First Nation governments detailing Iegislative authority and fund-

ing.

Once agreements were concluded, they would be ratified by_a process specified in the
legislation and would provide the framework in Canadian law for that particular Indian First
Nation. In those instances, the Indian Act would not be in effect for the Indian First Nation
concerned. A section of the recognition statute could state that agreements were to apply
“notwithstanding the Indian Act”. The Indian Act would remain in force for those bands
that wished to continue under it and would provide a legal structure while agreements were
being negotiated.

The particular merit of this approach is that each Indian First Nation government
would assume as much jurisdiction as it wished, and the scope of its jurisdiction could be
changed over time. The approach has another distinct advantage: the transition to a distinct

58

order of government in Canada by constitutional change would be easier, because Indian
governments would already be functioning. lt should even facilitate movement toward con-
stitutional entrenchmcnt by demonstrating the feasibility of self-government and the benefits
that would flow from Indian First Nations resuming control of their own affairs.

The third Iegislative move necessary to facilitate the accommodation of Indian First
Nation government would be for the federal government to exercise its jurisdiction with
respect to “Indians, and Lands reserved for the lndians” in all fields, particularly where the
absence of federal legislation has resulted in the extension of provincial jurisdiction to lndian
lands and peoples. Representatives of the Canadian Indian Lawyers’ Association pointed to
the exclusive jurisdiction of the federal government over lndians and lndian lands, even with
respect to matters otherwise falling under provincial jurisdiction:

Under Section 9l(24) of the Constitution Act, I867, [formerly the B.N.A. Act], the fed-
eral government is given exclusive jurisdiction over lndians and Indian lands. This means
that the federal government has the power to pass legislation with respect to lndians and
Indian lands without respect to the provinces. This is well illustrated in the Indian Act,
which deals with areas that are within provincial jurisdiction. Areas such as wills and
estates, motor vehieles, marriage, property, creditors’ rights, and liquor are all included in
the Act. It can therefore be concluded that the federal government has the authority to

legislate in all respects of lndians dealing with an area under Section 92 of the Constitu-
tion Act, I867. (Sub 13:8)

The Committee’s view is that Parliament should move to occupy the field of legislation
in relation to “lndians, and Lands reserved for the Indians” and then vacate these areas of
jurisdiction to recognized lndian governments. The exact manner of proceeding would
require careful consideration and consultation among the federal government, representa-
tives of Indian First Nations and, where applicable, provincial governments. The federal gov-
ernment would proceed to legislate in all areas in which Indian First Nations wished to exer-
cise jurisdiction. Then it would vacate those fields of Iegislative powers and recognize the
duly constituted First Nation government as the appropriate body to exercise them. Indian
First Nation governments would then have jurisdiction. They could, if they wished, through
negotiation and agreement with the provincial government concerned, continue a provincial
program or service for their communities. A

12. The Committee recommends three Iegislative measures:

l. The enactment of an Indian First Nations Recognition Act committing the federal
government to recognize Indian governments accountable to their people.

2. Legislation authorizing the federal government to enter into agreements with recog-
nized Indian First Nation governments as to the jurisdiction that each government
wishes to occupy.

3. Legislation under the authority of Section 9l(24) of the Constitution Act, I867
designed to occupy all areas of competence necessary to permit Indian First
Nations to govern themselves effectively and to ensure that provincial laws would
not apply on Indian lands except by agreement of the Indian F irst Nation govern-
ment.

With this legislation in place and supported by appropriate agreements, Indian First
Nations could be self-governing in areas in which they wish to legislate.

59

It is vitally important to ensure that there be no uncertainty as to the legal status of the
newly recognized Indian First Nation governments. They would be governments competent
to operate within their spheres of jurisdiction, interact with other governments, make con-
tracts, take legal action, and own land. lt should be made explicit in the proposed legislation
that Indian F irst Nation governments have these powers.

How does this proposal differ from the DIAND band government proposal to which it
may be compared? First of all, the Committee’s suggestion is based on a new policy
approach, which would set out the goal of a distinct order of government under new constitu-
tional arrangements. The Iegislative approach recommended by the Committee would open
the door to the future rather than facing Indian governments with the barricades of the past.
Second, the general structure would be decided upon through a bilateral process such as that
described in the Constitutional Accord, not through federally-initiated actions. Arrange-
ments would be based on mutual accommoda-tions, not on acceptance or rejection at the
Minister’s discretion. Once the procedurc was in place, a band’s decision to seek recognition
of its new structure, and the extent of jurisdiction it wished to exercise, would be based on
the band’s own assessment, not on the opinion of bureaucrats that the band was sufficiently
“advanced”.

Although agreements on some subjects can and should be reached and implemented
where statutory authorization is already available, in other areas only Parliament could pro-
vide the federal government with the authority necessary to act.

13. To ensure prompt action, the Committee recommends that any changes of policy
possible under existing laws that would enhance self-government and that are acceptable to
designated representatives of Indian First Nations be taken without waiting for the enact-
ment of new legislation.

Ministry of State for Indian First Nations Relations

The past history of the federal-Indian relationship has left a legacy of distrust and suspi-
cion that would seriously impair the capacity of the Department of Indian Affairs and
Northern Development to act as the federal instrument for developing a new relationship.
The Committee urges the establishment of a small new federal agency to signify the federal
government’s desire to begin a new stage of co-operative coexistence with the Indian First
Nations of Canada. Indian people would welcome such a move:

The only way to produce legislation acceptable to Indian people is to create an entirely
new ministry. The ministry would act as the governmental interface in all matters respect-
ing the development and reconstruction of band government. The working relationship
which the ministry would be designed to produce is one of co-operation and support.
(Union of British Columbia Indian Chiefs, Special 6:14)

The federal government found it advantageous to create a Federal-Provincial Relations
Office in 1975. Designated as a department, its objectives are:

(a) to assist the Prime Minister in his overall responsibilities for federal-provincial rela-
tions;

(b) to assist the Minister of State for Federal-Provincial Relations;

60

(c) to provide Cabinet with greater assistance in examining federal-provincial issues of
current and long-term concern; and

(d) to assist in developing federal-provincial consultation on an increasing range of
policy fronts.

lt undertakes special studies, provides assistance to government departments on provincial
matters, and monitors provincial views on federal policies and the evolution of provincial
policies as they affect federal policies.

14. The Committee recommends that a Ministry of State for Indian F irst Nations Rela-
tions, linked to the Privy Council Office, be established to manage and co-ordinate the fed-
eral government’s relations with Indian F irst Nation governments.

This could include the conduct of negotiations under the bilateral process and responsibility
for the fiscal arrangements proposed for funding Indian First Nation government operations,
economic development, and the correction of serious infrastructure deficiencies. It should
deliver no services, but would co-ordinate its work with the existing Department of Indian
Affairs so that the transition to Indian First Nation government would be smooth. Under the
Ministers and Ministers of State Act of 1970, a Ministry of State for Indian First Nations
Relations could be created by order in council.

Recognition

The new Ministry should also be the federal agency responsible for recognizing lndian
First Nation governments.

15. Owing to the political sensitivity of the task, the Committee suggests that a small
panel be appointed jointly by the Minister of State for Indian F irst Nations Relations and
designated representatives of Indian F irst Nations to review requests for recognition and
consider whether they meet the agreed criteria.

The panel should transmit recommendations for recognition to the governor in council,
which in turn would pass an order in council empowering the Governor General to affirm
and record federal recognition of that First Nation government. The Committee thought it
important that the Governor General formally recognize Indian First Nation governments,
because Indian peoples in Canada have traditionally had a special relationship with the
Crown. The Governor General’s involvement would symbolize the unbroken link with the
Crown and confirm that recognition would continue from government to government. The
Committee suggests that the Governor General should establish a register of Indian First
Nation governments and that a formal ceremony mark the registration of each government.

16. The Committee recommends that the Governor General affirm and record federal
recognition of Indian F irst Nation governments that are accountable to their people and for
which significant support has been shown.

To recapitulate, Indian bands would go through the following steps:

1. Deeide to govern themselves and set up a process, involving all of the people con-
cerned, to elaborate a form of government.

2. Once a complete structure was worked out, submit it to the people for ratification.

61

3. Seek recognition of the form of government.

4. Recognition having been acquired, the community would choose or confirm leaders
by the process specified under their form of government.

5. Deeide, in consultation with the federal government, on the jurisdiction to be exer-
cised.

6. Once agreement was reached, the lndian First Nation government would begin to
operate under its powers. Agreements on jurisdiction could be re-negotiated from
time to time.

Special Funding

The process the Committee has recommended would involve extra costs for lndian peo-
ples. Materials and programs would have to be developed, meetings organized and advisers
retained. Since a fresh start is important, it is desirable that funding not be provided through
the usual channels, so as to avoid any risk of charges of interference in the process. It is
important that money not be used to further the status quo, but that it be available to all sec-
tors of the community to constitute their governments.

17. The Committee recommends that one-time funding be made available to Indian
bands to assist them in developing their governments. The terms of such grants should be
worked out by agreement with designated representatives of Indian First Nations.

Facilitating Negotiations

With many negotiations to be undertaken, it can be anticipated that, even under the
best of circumstances, problems will arise. Past difficulties experienced by Indian communi-
ties in negotiating with the federal government have generated mistrust and suspicion, which
could complicate the many rounds of negotiations. In thinking of ways to facilitate these
negotiations the Committee looked at two examples. e

With the development of extensive negotiations between the federal and provincial gov-
ernments, the two levels of government decided over a decade ago to set up the Intergovern-
mental Conference Secretariat to service federal-provincial confcrences and meetings. This
small and entirely independent body has its own staff. It prepares agendas for federal-provin-
cial meetings and keeps the records of those meetings. Its function is to ensure that meetings
run smoothly and that fair records are kept; it is not concerned with the substance of ques-
tions. It is jointly funded by the federal and provincial governments to make clear that it
serves both levels of government. It is completely separate from the Federal-Provincial Rela-
tions Office. The Indian Commission of Ontario operates along similar lines.

18. The Committee recommends that the federal government and designated representa-
tives of Indian First Nations jointly appoint and fund an independent Secretariat to provide
a neutral forum for conducting negotiations between them.

North of 60°

The social and political situation of Indian First Nations north of 60° is very different
from that prevailing in the provinces. Since territorial status is in evolution, Indian peoples,

62

other aboriginal peoples and non-lndian settlers of the northern territories have a unique
opportunity to build the basis for a new relationship more satisfactory than the one that
exists in southern Canada. At present, northerners are actively seeking self-government.
Both land claims and constitutional discussions are proceeding.

Witnesses at northern hearings described the attempts of First Nations and non-lndian
governments to create governmental structures to meet the common needs of all citizens of
Canada’s North and to respect all cultures. Ongoing negotiations refleet a desire to accom-
modate the legitimate rights and aspirations of all permanent residents north of 60°.
Undoubtedly, any model of self-government that emerges in the North will be adapted to the
unique needs of that region.

19. The Committee applauds all initiatives to design innovative government structures
for the North embracing all its peoples. The Committee’s recommendations focus primarily
on the geographically dispersed First Nations of southern Canada, but some of the ideas
presented in this report may be helpful to those working toward self-government in the
North.

Scope of Powers

Earlier in this report we discussed several jurisdictional areas of particular importance
to Indian First Nations———health, education and child welfare. That discussion by no means
covered all the powers that lndian First Nation governments might exercise on lndian lands.
Self-government would mean that virtually the entire range of law-making, policy, program
delivery, law enforcement and adjudication powers would be available to an Indian First
Nation government within its territory.

Many witnesses described the traditional jurisdiction of First Nations over their territo-
ries and expressed their desire that their right to exercise many of these powers be recog-
nized:

Traditionally, as aboriginal peoples we had uncontested supreme and absolute power over
our territories, our resources, and our lives. We had the right to govern, to make laws and
enforce laws, to decide citizenship, to wage war or to make peace, and to manage our
lands, our resources, and our institutions. We had our own political, legal, social, and eco-
nomic systems. We reaffirm our position, as non-treaty aboriginal peoples, that we have
never ceded through any agreements or conquest, or surrendered our aboriginal titles and
aboriginal rights. The power to govern rests with the people; like our aboriginal rights, it
comes from within the people and cannot be taken away.

Our Indian governments are to have exclusive jurisdiction to make laws in relation to mat-
ters coming within these classes of subjects—people, resources, and lands—-without limit-
ing the scope of the possible subjects to be under the jurisdiction and authority of our
peoples. (Cariboo Tribal Council, Special 20:117)

Chief David Ahenakew put the matter very succinctly:

We expect that First Nations will retain and exercise most rights and jurisdictions which
provinces now have within Canada, and some others which are the special rights of the
First Nations. First Nations governments will have to develop judicial systems that will
establish laws, institutions, and procedures according to the needs and customs of each
First Nation. (Assembly of First Nations, Special 9:7)

63

î..__î_._____._._._._._.. …….._….. .. . . .

Even now the range of matters managed by band councils cuts across jurisdictional
lines. Some band councils provide services usually handled by municipalities, such as gar-
bage disposal, water, fire protection and recreation. Others also administer programs such as

education, health, and child welfare, which are usually provincial responsibilities. Other »

powers sometimes exercised are within federal jurisdiction—regulating fisheries, for
example.

While the Committee believes that the areas ofjurisdiction of First Nation governments
must be worked out through agreement, Indian First Nation governments would require
extensive powers if they were to be self-governing on their own territory and ensure their sur-
vival.

20. The Committee agrees that full Iegislative and policy-making powers on matters
affecting Indian people, and full control over the territory and resources within the bound-
aries of Indian lands, should be among the powers of Indian First Nation governments.

21. The Committee therefore recommends that Indian First Nation governments exer-
cise powers over a wide range of subject matters. The exact scope of jurisdiction should be
decided by negotiation with designated representatives of Indian First Nations. A First
Nation government should have authority to legislate in such areas as social and cultural
development, including education and family relations, land and resource use, revenue-rais-
ing, economic and commercial development, and justice and law enforcement, among others.
First Nation governments may also wish to make arrangements with the federal and/ or pro-
vincial governments to continue existing programs or services.

Certain principles behind the recommendation need further explanation. The Commit-
tee foresees that for matters coming within exclusive Indian First Nation jurisdiction, the
government concerned would have, under its constitution, all necessary powers to make laws
and set policy. Although an Indian First Nation government might adopt or adapt the laws
of another jurisdiction, the power to decide a course of action and change laws or policies
should be vested in the First Nation.

Within its areas of exclusive jurisdiction, an Indian First Nation government would
exercise powers over all people inside its territorial limits. Non-members moving onto Indian
First Nation land to live, do business or visit would be governed by Indian First Nation laws.
Their decisions to do business or live there would be influenced by the fairness of the laws
and their application and the availability of an appeal procedurc.

Full control over lands and resources within its jurisdiction would mean that an Indian
First Nation government would have the rightto raise revenues for its own purposes. At
present, bands that are declared to have “reached an advanced stage of development” may
raise money by property and business taxes (Indian Act, s.83). Thus some bands have had
experience with the limited exercise of taxing powers. The Committee is proposing a much
broader right to tax under which Indian First Nations would be able to raise revenues for
their own purposes on the lands under their control and jurisdiction if they wished to do so.
Some Indian First Nations might choose to exercise this power as an optional method of sup-
plementing the fiscal arrangements, to encourage and regulate development and to ensure
the economic well-being of their communities. The Committee concludes that Indian First
Nations should have the right to raise revenues for Indian governmental purposes by taxing
individuals, transactions, land and resources within their territorial boundaries.

64

Accommodating Differences

The concept of full control by a First Nation government opens the possibility of very
different standards applying in geographical proximity. The primary method of accom-
modating all interests would be government-to-government negotiations. Both sides should
be aware of the importance of reaching some practical arrangement. In the long term it
would be in the interests of Indian First Nation governments and surrounding jurisdictions to
endeavour to reach agreement at least in matters of public health and safety.

Governments adjacent to F irst Nation jurisdictions may be concerned that Indian
developments will be incompatible with their own needs, for instance, in regard to zoning. It
must be remembered, however, that Indian jurisdictions may have the same concerns about
their neighbours. One witness told the Committee that his band had turned down a lucrative
deal to lease land for a chemical plant, on the grounds that such a plant would not be in the
best interests of all residents of the area. (Musqueam Band, Special 6:61) All such matters
should be worked out through negotiation and agreement by the parties concerned.

During the transition from provincial or federal jurisdiction to First Nation jurisdiction,
it is important that no vacuums of jurisdiction be allowed to develop. Until a First Nation
exercised jurisdiction in a given area, the status quo would prevail.

Self-government would mean the right to define or redefine our relationship with the rest
of Canada, which must be determined at the local level, rather than from the highest level
down. It means to expand our government’s jurisdiction and evolve traditional forms of
government into forms which would be capable of successfully interacting with other levels
of Canadian government, while preserving our autonomy, traditional culture, and world
view. (Kaska Dena Tribal Council, Special 21:13)

Joint control will be desirable where Indian First Nation and provincial or federal juris-
dictions overlap. A good example is resource management on lands to which First Nation
rights have been reaffirmed, but that are no longer considered to be lands reserved for Indi-
ans (that is, treaty areas or land claim areas). By exercising jurisdiction jointly with other
governments, First Nations would be able to protect and have access to traditional resources
they consider important. Provincial governments would have different priorities, and accom-
modations to ensure land use compatible with Indian rights would thus be needed.

[My] reserve. .. is four by four square miles, and theoretically there are certain laws
which exist within that community. There are treaty rights of hunting, trapping, gathering
and fishing, which are protected under that given geographical area of four by four square
miles. We are required to hunt and fish and gather wild rice and blueberries within that
tract of land.

Then you go outside of that reserve and then the Ontario fish regulations apply. The Boise
Cascade Corporation receives a licence and a permit to eut and remove the timbers sur-
rounding our land. In reality, then, when there is no forest and the rivers are polluted and
there is no way that one can practise the traditional economy, in that sense the economy
has been destroyed, because the forest is cleared away and in the middle you have a four
by four square mile tract of land, in which all the treaty guarantees are guaranteed to you
but beyond that, outside of that, how many moose, how many deer can travel across that
land from which your band members, say 500 people, can exist? It is just not possible.
(Rainy Lake Regional Tribal Chiefs, Special 1:30)

65

It is for reasons such as these that governments must be sensitive to one another’s rights and
jurisdiction. On their own lands, Indian First Nation governments would have the power to
regulate traditional pursuits such as hunting, fishing and trapping without outside interfer-
ence. On lands covered by treaties or aboriginal claims, such powers would be exercised
jointly with other governments.

_ Acceptance of the laws of lndian First Nations in Canada has been slow, given the
restrictive legal regime of the Indian Act, the judicial interpretation of the Act, of treaties
and of aboriginal rights, and governmental policy in these areas. It is not reasonable to
expect that each Indian First Nation government would be prepared to enact lmmediately a
complete set of complex laws covering all areas of jurisdiction. In a transitional phase, as
each First Nation’s jurisdiction expands and while First Nations develop a body of law, ele-
ments of the current non-Indian law will continue to apply in certain ways. During this
period co-operative efforts could ensure recognition in Canadian law of Indian values. This is
particularly important with respect to religious practices and traditions of family life and
child care. Eventually Indian law codes and courts would be put in place, andnew accommo-
dations would be required.

Law enforcement has significant effects on Indian First Nations and their citizens.
Several witnesses dealt with the need to develop policing arrangements that are sensitive to
traditional values and customs. Some suggested Indian officers who would work alongside
the RCMP. (Chiniquay Band, Written Submission, Sub 8) The Ontario lndian Police Asso-
ciation stressed the importance of Indian police and made detailed suggestions for establish-
ing such a system.

The full task of protecting the Indian public should be entrusted to the Indian people. Our
heritage has been built on a foundation of moral policy manifested in community laws
adapted to our particular needs. We should cultivate an Indian court system that would
strengthen these moral foundations by enforcing the Indian and the Canadian law for our
people. Proper lndian policing needs full support from such a court. (Special 15A:6)

Others did not see a need for a separate force:

We would rather see the approach taken whereby we expand on the present force, the
RCMP, and just cross-deputize their powers to police under Indian jurisdiction and enforce
Indian law when they are on Indian territory. When they are off Indian territory they can
continue the practice that they are most familiar with of enforcing provincial-federal law.
(Federation of Saskatehewan Indian Nations, Special 16:10)

These suggestions illustrate the need for varied, flexible arrangements across the country and
for agreements to ensure a workable sharing of power and responsibility.

We recognize the potential for conflicts of jurisdiction and the possibility of joint or over-
lapping jurisdiction in some matters. There is no one answer, no simple answer, to such
problems. However, once our jurisdiction is recognized and entrenched, once government-
to-government relationships are established, Indian governments can resolve these ques-
tions bilaterally with other jurisdictions involved, as is the Canadian tradition. (Dakota
iNation, Special 122119)

Once jurisdictional arrangements are made between a recognized Indian First Nation
government and the federal or provincial government (or both), it is essential that the agree-
ment be a binding legal obligation. Even after reaching their landmark agreement with the

66

.- :1: . nflgtfgçwg

federal and Quebec governments, the James Bay Cree were faced with serious problems get-
ting governments to act and to provide funds. Moreover, there was no forum in which they
could seek to have the agreement enforced. The Committee urges the parties involved to take
steps to ensure that similar problems do not arise in relation to jurisdiction agreements. The
terms should be clear and funding secure. Disputes are bound to arise, however, so there
must be a workable and expeditious mechanism, acceptable to both sides, to enforce the
agreements.

In addition, agreements between lndian First Nations and the federal government
would be political settlements, not air-tight legal contracts. Existing courts are not set up to
interpret such agreements or to resolve disputes about their interpretation. Adversary proce-
dures might well be considered limiting and inappropriate. Thus, new tribunals would be
needed. ’

Chief David Ahenakew described some of the characteristics a tribunal would need in
order to ensure that disputes were resolved fairly:

. . .Decisions would be considered binding upon both parties. . . It would have available to
it other powers, such as mediation, conciliation, and arbitration. It would give equal
weight to the First Nations’ complaints of violations of rights and to Canadian interpreta-
tion of the limits of those rights. It would not leave First Nations totally vulnerable to hid-
den government opinions of what aboriginal rights are. (Special 9:8-9)

Although mediation or conciliation would be useful in attempting to resolve differences
of opinion about interpreting agreements of all descriptions——treaties, jurisdiction agree-
ments, service delivery contracts——there will be occasions where differences are not reconcil-
able and where an impartial third party must decide. This might be done through arbitration
or some other mutually agreed mechanism. The forum must be such that its decisions will be
acceptable to‘all concerned.

22. The Committee recommends the establishment of a specialized tribunal to decide
disputes in relation to agreements between Indian First Nations and other governments. Its
structures, powers and procedures should be jointly decided by the federal government and
designated representatives of Indian First Nations.

Non-Members Living Away from Reserves

Implementation of the Committee’s report would dramatically improve the situation of
First Nations residents and their members living off reserves. These proposals for self-gov-
ernment of First Nations do not, however, address the serious problems of Indian people who
would not be associated with an Indian First Nation.

Although it is anticipated that First Nations’ membership would increase with the
removal of Indian Act restrictions, not all lndians will become members of Indian First
Nations. These non-members are and will remain ‘lndians’; they too suffer appalling social
conditions and discrimination, whether they live in cities—Regina, Winnipeg, Prince
George-—or in remote regions of Canada. Their situation cannot be ignored. These people
should have rights to special federal programs. By virtue of the Constitution Act, I867, the
federal government has jurisdiction for lndians, although federal laws and policies have con-

– _.___.î__.._î. .
A

sistently been designed to deny this constitutional responsibility insofar as lndians living off
reserves are concerned.

The Committee has not had the opportunity to study the question in depth, but feels
strongly that it cannot be ignored. Indeed, urgent attention is required. It is for this reason
that the concept of a general list is important; it would be an acceptance of the fact of this
massive social problem and of combined federal and provincial responsibility to seek solu-
tions.

23. The Committee asserts that the continuing responsibilities of the federal govern-
ment toward Indian people, whether or not they become members of Indian First Nations,
must be recognized. The Committee urges federal, provincial and Indian First Nation gov-
ernments, along with representatives of Indian people who are not members of First
Nations, to work toward arrangements that respect the rights and aspirations of all Indian
people.

68

CHAPTER 6

THE ECONOMIC FOÙNDATIONS
OF SELF-GOVERNMENT

Before the arrival of Europeans in Canada, and for many years after, lndian people
were self-sufficient. lndian nations had developed diverse economies based on hunting, trap-
ping, fishing, gathering, farming, crafts and commerce. An extensive trading system for
resources and finished goods was established throughout the Americas; it allowed one region
to supplement local products with surpluses produced in other regions. Indian nations used
treaties of peace and friendship as a principal means of defining economic relations among
themselves. The same device was later used to establish relations with colonial governments.

Since the time of contact with Europeans, Indian economies have changed continuously.
Concentration on meeting the demand for furs and other goods for European consumption
led to dependence on imported goods. lndian economies became more specialized and less
diverse. Settlement by Europeans further undermined Indian economies by eroding the land
base.

Thus, European settlement gradually disrupted established and complex Indian econo-
mies. The policy of the Royal Proclamation of 1763 was to limit further disruption by
restricting the activities of settlers. Only the Crown could obtain Indian lands and resources
through a treaty-making process. When treaties were negotiated, lndian nations sought to
obtain a new economic base in exchange for the land and resources they were relinquishing
for settlement. As a result, these treaties contained such economic provisions as the right to
pursue traditional activities like hunting, fishing, trapping and gathering on unoccupied tra-
ditional lands. In support of these traditional pursuits, twine was provided to make nets and
ammunition was supplied for hunting. In addition, livestock and other agricultural items
were promised to help Indian people adapt to a farming economy. Educational opportuni-
ties——the promise of a teacher and school house in some cases—were intended to contribute
to developing human resources.

71

The Indian right to economic self-determination was taken for granted by our forefathers
when they negotiated the treaties with the Crown. Much of the negotiators’ attention was
focused on arrangements by which they attempted to secure the economic future of their
people.

The spirit and intent of treaties. . .point to financial and technical support for the estab-
lishment of a strong, self-sufficient lndian economy. Fully half the negotiations conducted
by the Indian leadership dealt with this right. For instance, our treaties expressed the pro-
mise of equipment, expertise, and assistance required to maintain the traditional economy,
including hunting, fishing, and trapping activities; and of course to develop new economic
areas, such as agriculture, business resource development, and financial institutions. (Fed-
eration of Saskatehewan Indian Nations, Special 12:61)

The spirit and intent of treaty economic provisions have been forgotten over the years.
Indian witnesses suggested that the treaties should be revitalized by interpreting them
broadly to mean economic support in a contemporary context. This approach was reinforced
by a research study eommissioned by the Committee, “The Economic Foundations of Indian
Self-Government” (see Appendix F). It called for flexibility and a spirit of generosity in the
fulfilment of treaty obligations.

The treaties were, after all, fundamental political, social and economic documents whose
provisions would have to fit unforeseen future circumstances. Their texts were never
intended to be strictly observed to the detriment of Indian nations and their economies.
They were to be living, humane documents——and the prineiple of generosity made them
humane and gave them life. (Economic Foundations Study, p. 33)

One source of economic support that Indian First Nations could turn to was the sale of
portions of the lands that had been set aside for their use. When parts of these lands, or the
resources from them, were sold, the proceeds were to be placed in government-administered
capital trust accounts. The interest from these accounts (and in some cases the capital itself)
was used to establish farms, for example, or to provide needed services. Until Confederation,
public funds were not required for lndians because they supported themselves. In fact, some
Indian nations remained self-supporting until the 1950s.

Over the years, however, the resources of Indian peoples have been dwindling. The real
value of the capital accounts has fallen as a result of government mismanagement, careless-
ness and, in some instances, corrupt actions.* Inflation has further diminished the value of
what moneys remained. At the same time, the needs and expectations of Indian people, along
with those of all Canadians, have been growing.

As a result of these developments, providing funds for lndian programs has gradually
become a permanent feature of the federal government’s expenditures. A pattern of eco-
nomic and political dependency has been created that requires greater expenditures each

year.

* Trust Study, p. 15. (See Chapter 9 and Appendix F.)

72

Obstacles to Development

The correction of these economic problems has been hindered by institutionalized
obstacles. For example, the aboriginal rights to hunt, fish, trap and gather were confirmed
by the Royal Proclamation and guaranteed by the treaties, but these rights have subse-
quently been restricted by laws such as the Migratory Birds Act and the Natural Resources
Transfer Agreements between the federal government and the provinces.

The Indian Act is another obstacle to economic development because, among its other
deficieneies, bands have no powers to control development. Moreover, bands or lndian—con-
trolled enterprises that incorporate arc subject to tax because such entities arc not considered
to be “lndians” within the definition in the Act.

Sections 87 and 90 of thc Indian Act exempt lndians from certain federal and provincial
taxes. Two problems arise in relation to these provisions. First, if an Indian business oper-
ating on a reserve incorporates, it acquires a new, non-lndian, legal personality and
thereby becomes subject to federal and provincial taxation. lndian tax exemption for on-
reserve profits and incomc provides a valuable incentive for on-reserve economic develop-
ment but, as it stands now, incorporation would completly negate this asset. The l)lA pro-
motes incorporation as a preferred vehicle for business operations. (Economic Foundations
Study, pp. 39-40)

Provincial laws may also apply to these corporations. Furthcrmore, lndian busincsses have
difficulty raising funds because they cannot use Indian lands as security.

Witnesses asserted that government programs also hinder economic development:

One [obstacle] is the hesitancy of government personnel in all stages of a project, from
feasibility to implementation. They are hesitant for three reasons. First, they worry about
government funds. It could be a real fear that one day they would be dragged before some
of your committee members to be called to account fortheir actions. lt is a real hesitancy
that leads to under-capitalization of projects and an inability to provide assistance in the
timely ways that business requires.

The second reason they hesitate is that they themselves lack thc personal and business exp-
ertise necessary. lt would be unreasonable to expect that a few people in the London dis-
trict [of DIAND] would have the expert knowledge necessary for projects ranging from
marinas and trailer parks to automobile factories.

The third reason is a lack of confidence in the capability of lndians. This is thc more irra-
tional of their concerns. We have the ability. We have worked hard to develop institutions
such as the ARISE corporation in southwestern Ontario. Our record speaks for itself.
(Union of Ontario lndians, Special 15:85)

These witnesses also remarked that the multi-agency approach has not helped; each
agency imposes its own monitoring and accountability processes, leading to confusion and
delays. The Union of Nova Scotia lndians asserted that the DIAND economic development
fund “has become a lender of last resort, with higher interest rates than normal”, rather than
providing low rates to give Indian ventures a much-needed boost. (Special 25:18)

Moreover, DIAND funds budgeted for economic development are often diverted to other
purposes. The Coopers & Lybrand study (see Chapter 7) confirmed that when departmental
funds fall short in other areas, economic development funds are among the first to be real-
located. The findings of the economic foundations study were similar.

73

Witnesses were especially critical of the sizable sums spent on welfare, money they felt
could be better used to create employment:

In economic development we would like to see funding to the individual Indian nations at
the same level or more than we have been receiving in welfare. We receive Sl60,000 for
economic development for 15 bands in our district and we receive in welfare 84.2 million,
which is an increase [over] last year of about 331.2 million. (Cariboo Tribal Council, Spe-
cial 20:119-120)

Witnesses also pointed out that the serious infrastructure deficiencies that now predomi-
nate in most Indian communities severely inhibit economic development. As documented in
Chapter 2, a high proportion of Indian communities do not have adequate water supplies,
sewage systems, roads or housing. People cannot be expected to give priority to spending for
economic development ventures when their own living circumstances are totally inadequate.
Deficiencies in infrastructure also hinder development by discouraging investment.

Case Studies

The Committee’s research study on the economic foundations for self-government
guided the Committee in making recommendations aimed at eliminating these obstacles and
promoting the economic development of First Nations.

The study identified six areas that must be controlled by Indian governments: land and
resources, capital, labour, organization, planning and technology. This conclusion was based
on the researchers’ analysis of the experiences of seven Indian governments engaged in eco-
nomic initiatives.* All participants in these cases studies saw expansion of their land and
resource base as fundamental to future economic development and self-reliance. The settle-
ment of claims and the fulfilment of treaties must go hand in hand with control over other
factors such as capital, labour, organization and technology. Access to adequate and secure
funding is essential so that economic ventures are able to plan, expand and diversify.

The case studies further revealed that job creation, on and off reserves, and the
enhancement of skills are priorities. Because of high rates of unemployment, Indian com-
munities attach more importance to job creation than to profit-making. Developing employ-
ment opportunities in their communities could enhance the survival of Indian First Nations
as distinct cultures by enabling more people to live and work in their communities and thus
participate more fully in all aspects of community life. In the past, migration from reserves
because of the absence of economic opportunities has contributed to a weakening of cultural
ties.

Those interviewed also felt that planning for economic development must be compre-
hensive, long-range and controlled by those whom it most affects. There was no consensus
about the best form of economic organization for Indian economic development. A mix ol‘
band-controlled ventures, with opportunities for individual spin-off enterprises, scemed pref-
erable.

* The subjects of the case studies were as follows: 1. Roseau River Indian Band and Long Plain lndian Band,
Dakota Ojibway Development Group Inc., Winnipeg, Manitoba; 2. SINCO Developments Ltd., Saskatoon.
Saskatehewan; 3. Sheshaht Indian Band, Nuu-Cha-Nulth Tribal Council, Port Alberni, B.C.; 4. Chippewas ol
Sarnia, Sarnia, Ontario; 5. Mattagami Indian Band, Gogama, Ontario, Grand Council Treaty 9, Timmins,
Ontario; 6. Nuhalk Nation, Bella Coola, B.C.; and 7. Seton Lake Indian Band, Seton Lake, B.C.

74

Currently, as in other program areas, real control rests with the Department of Indian
Affairs and Northern Development rather than with the communities involved:

Ultimate control over economic development programs and funding remains with the
Department. Community control, as used by the Department, means administration of DIA
economic programs at the local level. Control of the development process by Indian gov-
ernments is excluded from the DIA strategy. (Economic Foundations Study, p. 53)

The analysis of the seven case studies concluded that economic development succeeds
best when carried out at the community level. An examination of these economic develop-
ment ventures revealed the need for flexibility and diversity in the planning of structures.

Indian governments must be free to choose the types of organizational structures that best
serve their developmental needs. Some communities and their governments may decide
that community development corporations best serve their interests; others may opt for a
combination of band-owned and individually-owned enterprises. Still other communities
may find that none of these options is particularly appropriate for their needs. There will
be room for a great deal of innovative thinking on economic organization once major insti-
tutional obstacles are removed. (Economic Foundations Study, p. 125)

Indian First Nations must have control of resources as well as programs. Particularly
important are those resources needed for traditional economic pursuits:

What is at stake is control over and access to resources which are essential to lndians’ eco-
nomic, cultural and political development. In rural and remote regions especially, hunting,
fishing and trapping for subsistence and commercial purposes have been a traditional
foundation of Indian economies. . . .

The economic foundation of Indian self-government requires recognition of lndian hunt-
ing, fishing and trapping rights. This recognition is a prerequisite for Indian governments
to exercise effective control of this vital traditional resource. (Economic Foundations
Study, p. 45)

New Arrangements

Indian First Nations must have the power to plan and implement economic ventures at
the community level. Such initiatives may take many forms. Indian First Nations should be
free to set up economic development boards, corporations or agencies to use the funds
received to promote economic development. Some lndian bands and tribal councils have
already established development institutions. The Dakota Ojibway Development Group Inc.,
the economic arm of the Dakota Ojibway Tribal Council, began formal opcrations in Febru-

ary 1982.

In less than a year the DODG has undertaken feasibility studies and market analyses,
examining costs, competition and viability, and has presented its findings to the communi-
ties for further discussion. It has started or sustained 17 successful busincsses ranging
from a cow-calf operation to a labour-intensive tackle manufacturing industry. It involves
a total investment of 51.32 million on DOTC reserves and has created 29 new jobs while
maintaining 22 existing ones. In 1983 another 11 planned projects will help to create 63
full-time jobs with a total funding of 53.637 million. The funding is secured from private
sector sources, as well as other established government programs. (Dakota Ojibway Tribal

Council, Special 2:19-20)

75

The economic ventures undertaken by some of the member bands of the Dakota Ojibway
Tribal Council range from the manufacture of compound bows to the production of com-
puter chips. (Special 2:46)

The economic foundations study described several principles that should guide the
establishment of new arrangements:

From a development perspective, the exercise of effective control by lndian nations, peo-
ples or communities over the resources and institutions that directly affect their lives
means control over a resource base sufficient to meet material needs and political control
over the development process itself at the local level. In short, the economic foundation for
Indian self-government is a viable economic base, the resources of which are developed
under Indian control at the community level. (Economic Foundations Study, p. 1 17)

24. A new relationship between Indian First Nations and the federal government should
ultimately result in the provision of an adequate land and resource base and the settlement
of claims. Prospects for economic development would improve if the land base were
expanded, claims were settled, and the control of resources on Indian lands were transferred
to Indian First Nations. These actions would help to build the foundations for economic
development, but they will take considerable time to accomplish.

25. It is essential that Indian First Nations be able to get on with the task of economic
development without delay.

26. The Committee considers control of a strong economic base to be essential for the
effective exercise of Indian self-government. In planning for development of the economic
base, the people of an Indian First Nation should be able to set goals, define strategies and
then act to realize their potential. To do this they will require substantial funding.

27. The Committee recommends that, in determining the fiscal arrangements with
Indian First Nations (discussed in Chapter 7), sufficient funds be included to enable Indian
First Nations to correct any serious deficiencies in community infrastructure and to begin
economic development.

A Special Development Bank

It is necessary to develop innovative financing methods that would protect the Indian
First Nations’ land base and at the same time permit their busincsses to raise capital. It is
important that all available federal resources be used to further these objectives.

At present, the most significant block of funding that could be brought to bear on
improving the economic situation of Indian First Nations is the 5345 million Native Eco-
nomic Development Fund. The Committee realizes that the Fund is intended for Métis, Inuit
and non-status lndians, as well as for Indian First Nations. Since it is still in the formative
stage, it would be possible for the federal government to commit the Fund to economic
development efforts that would foster Indian self-government as well as the economic goals
of other native peoples. Indeed, failure to do so could mean that the Fund would operate at
cross-purposes with Indian governments. For instance, off-reserve economic initiatives could
worsen the gap between reserve and off-reserve economies and weaken Indian communities.
As well, a large development established for profit might overshadow programs initiated by a
small Indian government.

76

The Committee proposes that the most prudent use of the 5345 million Fund would be
to capitalize a bank——under Schedule B of the Bank Act—-with restricted share ownership

well as other interests, could be represented on the board of such a bank, the native peoples
groups involved would control the venture.

28. If representatives of the national aboriginal organizations agree to use the 5345 mil-
lion Native Economic Development Fund to found a special development bank, the Commit-
tee recommends that the federal government commit the F und as the bank’s initial capitali-
zation.

Given the amount of economic development necessary to assist lndian First Nations to
reach a satisfactory standard of development, additional capitalization should be sought
from all sources, including Indian and non-Indian investors, unions, churches and private
investors. The federal government should provide incentives to investment by granting spe-
cial tax treatment to bonds issued by the bank. Its loans should also be backed by federal
guarantees.

The Committee also emphasizes that capitalization of this bank must not be the federal
government’s sole contribution tothe economic development of lndian First Nations. The
bank would not be in a position to make forgiveable or interest—free loans or to provide eco-
nomic development grants that would not be repayable. The Committee expects that funds
for this type of economic development assistance would be available to Indian First Nations
through the fiscal arrangements recommended in Chapter 7.

Special economic incentives could also be provided to Indian First Nations. Witnesses
suggested that these could include tax incentives for investors, special bonds or tax-free
zones.

We would strongly recommend that reserves like Cole Harbour be given priority in the
establishment of free trade zones. . . .It is our right to obtain things tax-free and at the
same time barter for them or sell them at a cost advantage within our country. (Millbrook
Band, Special 24:36, 43)

The Jay Treaty also has economic implications. This treaty between Great Britain and
the United States confirms the right of North American lndians to cross the border with
normal goods and “free1y carry on trade and commerce with each other”. Canada has never
passed legislation to make these provisions of the treaty part of Canadian law. In addition to
the economic benefits of the Jay Treaty, the right to free passage is important for cultural
reasons.

Failure to recognize the Jay Treaty has interfered with Indian people crossing the bor-
der with items for ceremonial or religious purposes. On the West Coast, for example, where
members of an Indian First Nation may live on both sides of the international border, wit-
nesses described how they were stopped from bringing goods across the border for Potlatch
ceremonies. An elder, Bobby Woods, wrote to the Committee about the right to cross bor-
ders feelyfor religious purposes: i

77

zîr

.»‘ » ‘ ‘.. jalon»: man-î»: . .3

Many tribes bordering Canada and Mexico from the United States have been split by
international boundaries, and historically been involved in border disputes with the Immi-
gration and Customs departments. Natives cross to attend ceremonies and visit ancient
Tribal sites. Medicine bundles and other religious materials prepared and sealed by Medi-
cine men and worn for health, protection and purity reasons have sometimes been searched
and even confiscated by customs officials. Both actions render religious materials unclean i”
and useless to their owners according to their religious beliefs. (Written Submission, Spe-

cial 12A:2) .

29. The Committee recommends that the federal government introduce legislation to
implement the J ay Treaty.

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78

CHAPTER 7

FISCAL ARRANGEMENTS

If Indian First Nations are to govern their own affairs, a financial undcrpinning that is
in harmony with and reinforces this objective must exist. Present funding arrangements
effectively deny Indian band councils and tribal councils control of the programs they
administer; they exclude Indian people from policy-making; they place impossible accounta-
bility burdens on band councils that have assumed responsibility for administering programs;
and they generate an excessive federal administrative and monitoring superstructure. In
short, they inhibit the development of Indian self-government. The Committee is convinced
that the federal government, in establishing a new relationship with lndian governments,
must take a radically different approach to its fiscal arrangements with them.

In view of the obviously central importance of federal fiscal arrangements to lndian
self-government, the Committee commissioned a study, “Federal Expenditures and Mech-
anisms for their Transfer to lndians”, by the national accounting firm, Coopers & Lybrand
(see Appendix F).

Evolution of the Present System

Indian First Nations used to be self-sufficient, but European settlement destroyed the
economies they had developed. Increased federal spending has been required as Indian peo-
ple became increasingly dependent on government money for their basic needs. An addi-
tional factor has been the major growth in the social service role of government in Canada.
Initially, the Department of Indian Affairs and Northern Development delivered these ser-
vices. Later, as part of a policy to integrate Indian people, administrative responsibility for
some services was shifted to provincial governments, which were usually reimbursed for the
costs involved. In a further move, the federal government decided in 1968 to encourage the
transfer of the administration of certain services and programs to band councils. This was

81

followed in 1974 by the provision of core funding to band councils to cover management and
administration. In the process, the Department of Indian Affairs and Northern Development

shifted its focus from delivering services to advising and monitoring the performance of band
councils and their staffs.

Federal expenditures in general have increased enormously since governments assumed
extensive responsibility for providing social services to all citizens. To control this situation,
the federal government has developed extremely complex planning, budgeting, reporting and
financial control systems. As some Indian bands are nowipart of the delivery process (for
example, approximately half the social services available on Indian reserves are administered
by band councils), and are financed for this purpose by DIAND, comprehensive accountabil-
ity is required of them——requirements not needed for their own local governmental purposes.
These onerous accountability obligations are rationalized by a conviction that lndian people
lack the capacity to administer their own affairs and are the natural response of a bureauc-
racy anxious to retain control of its programs. They are also rationalized on the basis of criti-
cisms from the Auditor General about the inadequacies of financial controls.

Under the complex management and accountability regime imposed by DIAND, band
councils are expected to provide the Department with a detailed accounting of all the activi-
ties they administer. This situation led Coopers & Lybrand to comment:

Just as control of the purse was fundamental to the evolution of our own parliamentary
system of government, it is also fundamental to the survival and growth of government
bureaucracies. Thus, Indian self-government comes into conflict with bureaucratie pro-
cesses, and it is not surprising that real decision-making power, which depends on having
unrestricted funding, has not been transferred to Indian bands and councils. (Summary
Report, p. 18)

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Deficiencies of Present Arrangements

Indian witnesses provided eloquent testimony regarding the deficiencies of the present

funding arrangements. Devolving responsibility to Indian bands to administer services has
generated extensive negotiations each year:

In effect, we are caught up in a process which requires us to negotiate annually, on a line-
by-line basis every significant individual item in our operating budget. This is a protracted

and frustrating activity which absorbs great chunks of staff time and energy. (Blackfoot
Band, Sub 8:90)

The effort involved causes resentment because Indian people have found no evidence that the
policy of devolution has had any long-term purpose benefiting lndians. In fact, negotiations

l often end by the Department of Indian Affairs and Northern Development making unilat-

eral decisions.

A long-range plan for the orderly and co-ordinated transfer of programs in terms of the
Department to the bands was not in place. The Department of Indian Affairs did not make
estimates of the cost to implement their policy, a policy that was publicly announced many
times for several years. There were no criteria to carry out the policy. Can this be indica-
tive of the Department of Indian Affairs sincerely regarding the implementation of its
policy of devolution? (Association of Tribal Councils of Manitoba, Special 2:83-84)

Although in theory a policy of transferring responsibility for administering programs
might be expected to improve the delivery of services, the funding arrangements have often
had the opposite effect. Even though the process of forecasting budgets begins three years in
advance within the Department of Indian Affairs and Northern Development, bands noted
that they often did not know how much money they would receive until months after the

beginning of the fiscal year. One group told how its funds were held up in Ottawa from April
1 until November 5, 1982:

I want to émphasize that the delay was not the result of any disagreement over our
requests. It was merely a processing delay. This standard approval took over eight months

to obtain. For such delays to be allowed to happen is scandalous. (Blackfoot Band, Sub
8:89)

This kind of situation forces bands to borrow to cover operating expenses; in the process they
incur heavy and unnecessary interest charges for which they are not reimbursed:

It has been estimated in our area that the bank interest charges incurred by this cumber-

some reimbursement exceed 580,000» a year. (Carrier-Sekani Tribal Council, Special
20:29) l

Equally frustrating is the fact that attempts at forward planning often lead nowhere:

We spend hours in meeting after meeting planning the [DIAND] five-year plan. After a
year or two, DIA comes back to us and tells us that the five-year plan is out, they have no
dollars for it. It is the frustration and the instability of DIA planning that we suffer
through. (Kitamaat Village Council, Special 7:82)

A matter of particular concern to witnesses was the cost of the administrative structure,
in terms of the bureaucracy in the Department of Indian Affairs and Northern Development
as well as at the individual band level. In their view, these represented excessive unproductive
expenditures:

83

i But I also carry a concern about those dollars that lndians never see; those dollars that go
to support a bureaucracy that does not seem to be achieving success; a bureaucracy that
gobbles up in excess of 30 per cent of dollars allocated to lndians across Canada. (Chris-
tian lsland Reserve, Special 15:69)

Another witness focused on the burden placed on bands by the new system:

. . .the problem we have now is that the way the system is set up, we have to report to
many different levels of government. A lot of paperwork is involved, and we do not think
that is necessary at all. (North Coast Tribal Council, Special 7:17)

Still another witness objected to the fact that lndian bands were expected to provide ser-
vices similar to those the Department provided, but with smaller staffs and no administrative
funding. Witnesses also noted that although the departmental budget might increase by a
certain percentage, the budget of bands did not increase at the same rate. Moreover, band
councils were not in a financial position to match the salaries and benefits paid to depart-
mental employees, making it difficult for them to recruit and retain competent staff.

They [the Nuu-chah-nulth Tribal Council] found out the number of man-years the
Department had been exercising, previous to their takeover, was a considerably larger
number than what they actually were given; and it was almost two to one. In fact, when
they took over, they found they were operating at a budget of something like 43 per cent of
what the Department of lndian Affairs was operating at, previously, to provide the same
services. (Native Council of Canada, Sub 7:10)

Apart from the cost, witnesses were critical of the stultifying effect on band morale.

DIA has developed a network of paper-shuffling and checkpoints within its bureaucracy
that is so painstaking and complicated that it undermines all band initiative and
enthusiasm. (Chiniquay Band, Written Submission)

Moreover, strong feelings were expressed that the controls were more onerous than gov-
ernment financial regulations required.

Much of the tightening-up by the Department is pure window-dressing, as the flood of
paper dealing with annual and five-year plans contains no meaningful controls over, for
instance, the productivity and work performances of departmental bureaucrats. But at the
reserve and tribal council levels, the increase in controls is real. The Department has uni-
laterally built into its contribution agreements, for instance, a degree of control that
exceeds by far that required by Treasury Board. (Joint Council of Chiefs and the All
Chiefs’ Budget Committee of the Assembly of Manitoba Chiefs, Special 3:51)

A witness suggested that “in order to satisfy their own uneasiness about their own con-
stituencies, they infict upon us reporting requirements far greater than they would wish for
themselves.” (Blackfoot Band, Sub 8:81)

Funds are now provided through complex ‘contribution agreements’, which impose
extensive conditions. Several witnesses took the strongest exception to such agreements as a
form of funding:

84

(t e‘
If may us c an ex amv1e he re- » » an . .

Indian lbanäleîn norIheas tern AIïberta over

: : Ifldïa nf p6 0P16 0Î :ï. ha î Of ing W€lfat€t peri S6i itivanticd. I‘>1î1P1 5 th1€ît °:WH gutîdélines».baS6dî i . ç instance, if an ind ividua l, was ïentitlecl ,tlo f5 1 00 îworth of welfare almonth, theg,people aS‘l(;ed

tjtiey be put to work;‘and”the icotuiml, in the wisdom cf that particular band,‘putgthe _people

. t0 work oncornmunityimprovement)projects. p. _..

. When the chi1d ren saw’ ?thcir parentsiÎgoing to work on the projectnhe attendancesratetof A
those children in school.’increztsed, dramatfically. . This went on for quite someïtirne Ïuntil,
. siorneone in :the,:hierarc hy : ‘osf the Department toldthat band theycould not make people, i
work for we1 rar e.

i implications,Iieres-areafar-retaching.iTheyl ile x tended cave-n to the children

Contribution agreements are not agreements as such but are unilaterally imposed under
the threat of withdrawal of funds. They call for repayment of surplus funds and deficits.
They are entirely conditional, carrying with them no obligation on thc part of thc govern-
ment to provide adequate and efficient services. They are also arbitrary in that their terms
and conditions vary from band to band and tribal council to tribal council in a highly dis-
criminatory manner. As the principal instrument in the Departments devolution policy,
their terms are a matter of grave concern to us. (Joint Council of Chiefs and All Chiefs’
Budget Committee of the Assembly of Manitoba Chiefs, Special 3:52)

A specific complaint was a provision making it impossible to carry over a surplus into a sub-
sequent year.

. . .If a band were to practise a very conservative program for the year and create a sur-
plus, the Department would merely move that resource to the following year, keeping that
particular program static, thus eliminating incentive for the band to save money for other
programs. (Christian lsland Reserve, Special 15:65)

This practice is the more objectionable, it was asserted, because deficits arc carried forward
and must be repaid.

Another concern was that excessive emphasis had been placed on welfare services rather
than on development. ‘

Existing arrangements lock our people into a permanent welfare system which cannot pro- l
duce any positive solutions. Controversies will continue endlessly unless basic changes are

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Witnesses argued strongly for a more flexible arrangement that would free them to focus on
economic development:

The social development programs. . . in fact are anti-social development, in our estimation.

It is the only budget we have that is open-ended. . . Our desire is to take these kinds of pro- I
grams and use them to develop housing programs and for overall development, to be

relieved of the restrictions after the broad objectives have been stated. (Kitamaat Village

Council, Special 7:69)

85

Similar objections were raised to the fact that in times of budget restraint DIAND tended
to make cuts in funds for economic development and for band government, while not reduc-
ing its own administrative budget. One witness commented:

Funding in the past has been inadequate. But the problem has only been worsening. Fund-
ing for management support services for tribal councils is listed under “a1l other services”
and is severely reduced—-—sometimes by 50 per cent every year. The conversion of capital
funds is not an acceptable alternative. . . (Southeast Resource Development Council, Spe-
cial 2:1 1)

More generally, the Committee was told:

.. .that non-discretionary——-protected——-funds suddenly become discretionarywunpro-
tected-when an Indian Band is allowed to take over a program. lndian Bands are not
given the same assurances that funds will continue to exist as opposed to the protective
category that certain funds have while the Department of Indian Affairs is in control of
those funds. (Peguis Indian Band, Special 3:1 17)

A strongly held suspicion that the Department uses its control of funding to promote
hidden objectives surfaced more than once:

It has long been my contention that the Department of lndian Affairs uses two standards
for funding bands in order to promote their political objectives and philosophies at the
reserve level. (Union of British Columbia Indian Chiefs, Special 6:10)

Another witness put his concerns more bluntly:

Under the present system now, political blackmail can be practised. . . the Department of
Indian Affairs, since it controls the funding, can also control the elections of the band. . .
So if [someone] is strongly opposed to the implementation of user fees or the J circulars,
[the Department], by withholding funds to the band, would see that [he] would not be
around after the next election because the band membership would say, well, we do not
have any capital housing this year under your administration. (Chippewas of the Thames,
Special 15:83-84)

In more general terms, the Departments control of funding was seen as having a
damaging effect on relations between Indian peoples and the Canadian government.

There now exists a large, costly, inefficient bureaucracy that delivers Indian services and
programs. The Indian Affairs Department competes with our governments for authority,
and inevitably maintains the colonial character of our relationship with the Canadian gov-
ernment. (Bella Coola District Council, Special 6:83)

Devolving responsibility to Indian bands for the delivery of services, while retaining
departmental control of policy through control of funding, has frustrated the declared pur-
pose of devolution—-namely, strengthening the capacity of Indian peoples to run their own
affairs. One witness complained that “band councils are just fancy cheque-writers for thc
federal government”. (Rainy Lake Regional Tribal Chiefs, Special 1:37) Another com-
mented more generally:

. . .easily 75 per cent of the time and energy of our band government is spent satisfying the
record-keeping, data analysis, reporting, forecasting and evaluation requirements estab-
lished by the many agencies of government which regulate our lives. Indeed, the very
structure of our government is determined by the need to comply with these tasks. And
because of the increasing emphasis of the past 2 to 3 years, on accountability to central

86

agencies, the proportion of our energies going to satisfy bureaucratie processes has grown
dramatically. This at a time when DIAND talks of “devolution”. Indeed, along with most
other governments in this country, we are more truly a branch office of the lndian Affairs
department than we are a tribal government. . . . (Blackfoot Band, Sub 8:80)

The conclusion expressed by a third witness was particularly frank and disturbing:

It should appear self-evident that without Indian people having ultimate control over
finances, the exercise of self-government is impossible. Economic development becomes
irrelevant, if not impossible. [The current system] is demeaning, irrelevant, and counter-
productive in terms of nurturing mutual respect. (Grand Council of Treaty No. 3, Special
1:95)

The result of this situation is unfortunate. Indian leadership feel they have taken over a
lot of administrative work and problems formerly borne by the Department without being
properly compensated, without being given any discretion or control, and without resultant
savings in departmental administrative costs.

Departmental personnel, on the other hand, feel that program devolution requires the
Department to take on even more staff and put in place systems to cope with what they view
as Indian administrative inadequacies. A briefing book on band government prepared by the
Department claimed that “costs of the programs themselves were found to increase from 20
per cent to 30 per cent when programs were transferred to Indian management”. It went
onto claim that “many bands have not developed the management capacity required to par-
ticipate in the devolution process”. (p. 23)

Conclusions of the Research Report

Because of this disturbing testimony, Coopers & Lybrand were directed to look at how
the current service delivery systems operate and are funded, to assess what proportion of
funds spent are absorbed in administration and what proportion directly benefit Indian peo-
ple, to examine the accountability requirements and consider their effects, and to make pro-
posals regarding alternative funding arrangements. They were asked not only to look at the
Department of Indian Affairs and Northern Development, but also to use two tribal councils
as case studies. v

The study, running to several hundred pages, documents and substantiates most of the
criticisms expressed by witnesses. As the Coopers & Lybrands conclusions are so cogent, and
refleet so closely the Committee’s own assessment, the Committee decided to reproduce
them here in extenso.

Transfer of Administrative Responsibility

The chapter of the Coopers & Lybrand report dealing with the transfer of administra-
tive responsibility describes current administrative processes in some detail and reviews
information collected from the Central Interior Tribal Councils (CITC) of British Columbia
and the United Chiefs and Councils of Manitoulin (UCCM). CITC was selected as a case
study of tribal councils that have been given responsibility for delivering a number of services
previously administered by the Department. UCCM provided an example of a tribal council
that delivers fewer services. The conclusions of this chapter read as follows:

87

The description of administrative processes clearly shows a duplication of administrative
structures within DIAND and between DIAND and Indian bands and councils. The case
studies show how person-years and dollars have been absorbed in monitoring and adminis-
trative processes and in other purposes. These case studies and the Department’s own
assessments show that Indian bands incur equal, if not greater costs, when they take over
administrative duties from the Department, while at the same time the Department has
added to its costs by taking on advisory and monitoring roles. The band administrative
structures may cost more, but Indian involvement in the processes seems to increase their
effectiveness according to almost everyone that we interviewed. In addition, the contribu-
tion made by providing effective and satisfying employment to lndians with advanced edu-
cation should not be overlooked.

Based on our examination of the roles and responsibilities of each of the levels within
DIAND and of the bands administering programs in the British Columbia and Ontario
regions, a number of conclusions can be reached with respect to the effects of the transfer
process on both Indian self-government and the costs of administration. These are:

Underlying objectives of transfer process:

0 DIAND staff do not believe that they have an adequate plan to complete the transfer
process. . .

0 The process of transfer to date has been essentially a delegation of DIAND administrative
responsibilities to bands and tribal councils. There has been no real shift in decision-making
responsibilities. . . and almost complete control still lies with the Department.

Changes in administrative costs:

Staff reductions at the regional level have been inhibited by the additional burdens, program
enrichment, and new thrusts imposed on them from headquarters and central agencies. . .

0 . . .significant duplication takes place within DIAND and between DIAND and the bands.
0 Limitations on signing authorities cause excessive case load back up through the system. . .

0 The costs of responding to central agency criticisms of the lack of an adequate accountability
framework have created an internal shift of resources away from programs and into financial
control and management improvement projects, as well as increasing the administrative bur-
den on program staff .

DIAND’S difficulties in coping with change:

0 The process of transfer has created a role change for DIAN D personnel from service delivery
to advising and monitoring. . .

0 Combining monitoring and advising roles in the same field staff is not working well because
the two roles are basically in conflict with each other. Staff cannot be expected to inspire
trust and confidence as advisers to bands when they also are monitoring band
performance. . . .

Indian band administrative capabilities:

0 Bands that are now successfully administering their programs have gone through rough times
but have succeeded more often because of their own leadership and staffing than because of
the training, advice and monitoring of the Department.

88

0 Many bands have had problems .in assuming programming and administrative responsibili-
ties. . . but present practices of having the same people who were supposed to train, advise and
monitor them take over in these situations is unacceptable to the bands and likely also to be
ineffective given that they did not succeed in preventing the problem occurring and may actu-
ally have contributed to it.

o DIAND is an adminstrative machine, not a people-development mechanism.

0 Many of the services being delivered could be provided and are being better provided by a
band’s own advisers than by DIAND staff. (Section 3 & 4, pp. 78-81)

Coopers & Lybrand also cited a study by the British Columbia region of DIAND survey-
ing Indian perspectives on current problems. The survey found that:

0 administrative processes and how they are conducted cause most of the problems between
DIAND and the Indian bands;

0 DIAND is not keeping up with the administrative progress of many bands; and
0 DIAND underestimates and under-utilizes the emerging cadre of Indian managers.

The Coopers & Lybrand study drew the following conclusion:

In summary, the present relationship between DIAND and Indian governments is not satis-
factory. If Indian governments are to be allowed to govern the affairs of their people, then
administrative and funding relationships with the federal government must recognize this
in the same way that it is recognized with provinces. lndian people should be allowed to
help define the roles to be played by the federal government in fostering the development
of Indian self-government. (Section 3 & 4, p. 82)

Administrative Costs

Coopers & Lybrand were asked to calculate the proportion of funds that were expended
on departmental administration and that did not therefore reach lndian people. They con-
centrated on the Indian and Inuit Affairs Program, which accounts for most of the Depart-
ment’s expenditures. They-concluded that one-quarter of the funds expended in 1981-82 on
this program, or about 5250,000,000, went to administer it. A further 539,102,000 was spent
on general departmental administration. In their opinion, administrative costs accordingly
amounted to more than 25 per cent of total expenditures. The actual percentage would be
even higher if the heavy costs incurred directly by bands to meet the Departments adminis-
trative demands were included. Coopers & Lybrand commented that the administrative
costs of Indian bands need not exceed those of other small organizations or busincsses. At
present the requirements imposed on lndian bands result in far greater costs.

Size of Departmental Staff

Of special interest to the Committee was the effect on the size of the Department of the
transfer of administrative responsibility to bands. A study commissioned by the Department
showed that such transfers increase the cost of providing goods and services to Indian people
by between 20 and 30 per cent. Two-thirds of this cost increase was caused by increased
administrative costs, mainly due to the Departments expanded advisory and monitoring

89

functions. One-third of the increase in costs resulted from demands for better facilities, pro-
gram enrichment and lost economies of scale. For example, lndian-controlled education has
encouraged Indian children to remain longer in school, resulting in higher costs.

Government officials told the Committee that these increased costs were the unavoid-
able consequence of a policy of devolution. The implication of this approach is that as more
service delivery is transferred to: bands, administrative costs will increase, thereby reducing
the funds available for the direct benefit of Indian people.

The Coopers & Lybrand study confirmed the accuracy of this analysis, but drew atten-
tion to the possibility of reversing this trend by dispensing with the Departments advisory
and monitoring services which, as they noted dryly, “are little appreciated by the lndians”.
(Section 3 & 4, p. 51) In the British Columbia region, they reported, the total number of
departmental staff had been reduced after administrative responsibility was transferred to
Indian bands, but 100 people responsible for band and local government had been added.
Their conclusion was that “a further reduction in staff is not likely to occur unless thc fed-

eral government changes its approach to devolving reponsibilities to lndians”. (Section 3 & i

4, p. 50) At the same time they noted that Indian bands that had taken on these new repon-
sibilities had increased their staffs by approximately the same number.

Costs of Present Accountability Processes

In addition to these administrative, advisory and monitoring costs, there is the cost of
accountability. The Committee directed Coopers & Lybrand to pay special attention to the
cost and utility of the complex accountability systems set up by the Department for plan-
ning, budgeting and disbursing funds from Treasury Board to DIAND headquarters, from
headquarters to the regions, from regions to districts, and from districts to bands–with
accountability flowing back by the same route. A massive system controls this process.
Moneys for Indian bands appear in the departmental estimates under separate activities. The
Department is expected to demonstrate that funds allocated to an activity are actually spent
on that activity. This results in an unnecessary mountain of paper work.

The documentation appropriate to ensuring accountability between lndian governments
and their people could be produced on a single page. Now, when the documentation required
by the Department reaches headquarters, it is volumes in size, and so complex that depart-
mental officials say they do not have time to involve bands in the process of preparing budg-
ets. There is little discussion with Indian people as to why funds are being spent and whether
funds could be better spent.

The Coopers & Lybrand report described the current systems in considerable detail,
both to explain why they had been established and to suggest that this level of complexity
was totally unnecessary for Indian government.

We have covered the accountability process from cradle to grave, not just the costs of post
facto accounting to Parliament, because it is the government’s planning and budgeting
approach that is creating most of the increased costs of obtaining accountability informa-
tion.

. . .It is worth noting that small organizations like Indian bands do not need these complex
and costly procedures. In fact, it is surprising how little they are involved in the Depart-
ment’s own processes. Government processes are largely a product of size. Whereprovid-

90

ers and recipients of government services have direct accountability relationships as they
do in the case Of Indian bands, Simpler processes become possible. Therefore, the solution
to significantly lowering the cost of present accountability processes is to isolate such fund-
ing from federal departments delivering services so that simplified accountability arrange-
ments become feasible, particularly if unconditional funding. . .is introduced. (Section 5, ‘
pp. 41-42)

The report proceeded to draw a number of conclusions with regard to the present
accountability procedures:

The emphasis on activity elements and variables in the new planning and budgeting pro-
cesses is at cross purposes with the transition to Indian self-government. The budgetary
processes of the government of Canada are designed to provide a national explanation of
the ordering of spending priorities by focusing on program objectives, alternative activities
or means to attain them, cost/benefit analyses, workload hdicators to justify resource
requirements, cost accounting and analysis, and value-for-money auditing and program
evaluation to assess retrospectively what has been achieved. Small governments can substi-
tute more inductive processes for these complex and expensive deductive approaches.

The Department is giving relatively little attention to the controls imposed by Parliament
through the vote structure, and Treasury Board through allotments, but program manag-
ers are increasingly tying strings on ‘their’ funds. The budgetary processes, allotments,
management regime, contribution agreements, monitoring, reporting and auditing pro- , .
cesses are all designed to reinforce the ownership of program managers, at the expense of i
giving regional directors-general, district directors and other general managers flexibility

in satisfying band needs. Although nominally decentralized, the true test of any decentrali-
zation is the amount of decision-making authority given to field managers. Steps being
taken by the Department to tie strings on its funding not only reduce the Departments
ability to respond to Indian band needs, but also increase the cost of such processes. Fur-
thcrmore, the Department usually permits surpluses to be transferred to cover deficits, so
the sub-division only increases accounting complexities and creates uncertainty and fric-
tion without any apparent benefit. . . .

Thus, in summary, we question whether the elaborate planning, budgeting, resource allo-
cation, contribution agreement, reporting, monitoring and auditing processes are effective
and therefore necessary. If simplified funding arrangements can be introduced, these costs
can be significantly reduced. (Section 5, pp. 43-46) Î

ffects of A ccountabilit y Processes on Bands

At the Committee’s request, Coopers‘ & Lybrand also examined the effect of accounta- l
bility requirements at the band and tribal council level. After describing the various proce-
dures that bands are called upon to comply with, the report offered the following comments , 1
by way of conclusion: i l
The Department is constantly changing coding and the format of forms to be filled out by I l
the band. This introduces inconsistency in the format of financial information (which also l
introduces audit complexity) and results in band staff having to constantly learn new
approaches.

The requirement of fund accounting introduces complexity in daily bookkeeping. More
knowledge is required to account for inter-fund transfers and more detailed ledgers must
be maintained to account for each fund. ’

91

thei r . .truiälnecdsare not being cornmunicated to Treasury Board and Parliament; a

.s : t ïe àted as rfeSidual; l

iparliamentary and governmental controls are secondary to those then “Depai?

: 1. î :: f . ::imposes forits own purposes; . .

th€Y ° bSCur° a°countabi1ity; .

their solvency or a cc ountajb, i li:ty; .

i:: . : . :becomes insolvent;
il i l 1T here is a fundamental conflict,betwee n the monitoring and advisory roles of DIAND

.to conceal diversion of funds from one purpose to another. F inancial transactions coded as
to purpose are difficult to check or audit because often only themanager authorizing the
Ÿiïft,..iiexpenditure really knows its purpose. This pis why Treasury Board rarely uses the activity
classification for purposes of imposing allotment controls; ‘

i: Auditors have great difficulty in assuring the Department that funds are spent for the pur-
;IÏÎ-IVA..«_I_gpOSCS approved. This is partly because of the difficulty of auditing such transactions, but it
,is also because they are uncertain abouttheir responsibility to the Department. (Coopers

d: .I‘Cd Imdcr presicnt =processes..i 14×11 assume others fire treated pimorei ïfavourablyiand, there-g

be .wrong to accuse Petlrliarnent ofcausing most of the present accountability
.ï.csnt,
.T he : p1iogram tir activity »Icirientartiion leads toduplicarionbetvveen: d i:st1ricts, rlegions ‘5 and:,s: .
: headquar:ters ,: results in a niu1tip1icit y offorms and procedures and slowspdown the wholc: g

 -t :Despite this costly monitoring process,DIANI) is hesitant to intervene until a band actually

. s..tïi:i.I. ,f:, ..-liernp1 oyees, and some lndians sus pect : they .have a self-interest to see band local govern-

fîxlpenditure reports are often inaccurate and expenditures can be manipulated if necessary:

departmental bands
steps w

large ‘portion “of IJIAND: .is. either formuladeteprmitnedb aadvqance, so, î
5111686 c1 ab0 t3»î<> Issaurcîrig and sfufrI<îin g a rrangem cnts, whiclimày 13e aI>I>r0 I>riatei f0r 6660€:
(nonne developmentpgnd I3ari d(infrastructure requirements wthere. managers :h av ep f some: flgx, p.
ibi:Iitv. ar e bei ns a pr>Ii ed vnnecessarîly t0 the full l’ange of depart mea t alfunding réquire-

î :.:. .. .Despite tire long timespan1 ,precedi ng estimates submission tciiParliament,iconsultationvvËitlilI-i j.
I ndi1an band s pisgeneralily,inadequate. It isî as if ‘Treasury j Boa_rd produced. the
VŸ i.thc u t itcîlslilting’(ïepartments. ‘While itis stated that this fis jbe.causei1 I,they do not .
ra je-Içndiagl iajnd,expectations:forfunding thatcannot lac-delivered,,ïthteiïbands,feelthat

i>roces ses for much greater:i nvo1 vemen t .<>f Indians i n the Iarocess.
is. theïarea where IDIAixIDmanagerS have greatest llexibility 1;an d(the area that i5: , ç

ofdistrictsand

bands did not know, the ..m……. tir their i_
funding until after the new ñsca 1 yea1r: had icommenced, hardly a process that encourages

92

While reporting is required to be on a quarterly basis, for funding purposes bands often

have to report on a monthly basis. Quarterly reports are probably adequate for internal
purposes.

Some bands expressed concern that filling out statistical reports with information on case
loads, claims processed, etc., required too much of their staffs time, detracting from their
primary duties.

Most of the bands visited relied more on their auditors for advice and assistance than on
the Department’s band financial advisers, who provided only limited assistance, or were
avoided because of their monitoring role.

Delays in getting contribution arrangements in place and receiving advances resulted in
bands entering an overdraft position with their bank. This represented not only an interest
cost, but a loss of credibility with the bank.

The present method of funding and the Department’s disposition of surpluses and deficits
introduces uncertainty at the band level with respect to budgeting and year-end position.

In general, the bands adequately recognize the need for financial reporting and informa-
tion, and the need for retaining competent staff and providing training to them. The more
sophisticated bands employ service bureaux or some form of computerized system to pro-
cess accounting information with a view to providing data more efficiently and increasing
its timeliness. In many regards, these bands are facing the same types of problems and
handling it in the same way as private sector entities of comparable size. There is no rea-
son why bands cannot cope in the same way, ranging from having their auditors write up
their books to automated system of accounting. Skills and services are available from the
private sector if they can afford to hire them. (Section 5, pp. 47-49)

Need for New Funding Arrangements

Coopers & Lybrand consulted with federal and provincial officials and with members of
band and tribal councils in preparing their report. All were in agreement “that something
needs to be done and [they] are looking to the Special Committee for solutions”. The Joint
Council of Chiefs and All Chiefs’ Budget Committee of the Assembly of Manitoba Chiefs,
as well as the Assembly of First Nations, have examined the problem in detail and forth-
rightly expressed their hope for change:

This Committee has a responsibility to report on this issue and to recommend a complete
overhaul of the government’s fiscal priorities and approaches to devolution. You must
choose whether you wish to see present trends continue, in which case the result will be a
continuation of policies of administering proverty and despair, or whether you wish to see
movement toward genuine self-government in which case completely new fiscal relation-
ships are required between the government of Canada and Indian people. (Joint Council of
Chiefs and All Chiefs’ Budget Committee of the Assembly of Manitoba Chiefs, Special
3:55)

The Minister of Indian Affairs and Northern Development, the Honourable John
Munro, indicated what he sought from the Committee in this area:

The Committee somehow has to come up with a new set of ground rules that will be
acceptable to Parliament for the handling of public moneys. (Sub 2:33)

93

The Indian population continues to suffer from the negative aspects of the present rela-
tionship. Until we come forward with remedies, the Indian communities will not be in a
position to enjoy long-term benefits from the expenditure of public moneys. The sense of
frustration will only increase. (Sub 2:17) ‘

30. The Committee is entirely convinced that Indian self-government must be supported
by new funding arrangements that would enable Indian First Nation governments to decide
how best to meet their peoples’ needs.

Committee members were particularly impressed with two observations made in the Coopers
8L Lybrand report:

0 The present departmental rules are appropriate for agents, not for governments.

0 Funding mechanisms are the key to reducing administrative and accountability
burdens.

While expressing support for grants to Indian governments as a way of reducing this
administrative and accountability burden, Coopers & Lybrand stressed, and the Committee
agrees, that “if accountability is to be reduced, Parliament’s expectations of the Minister
must also be changed”. (Summary report, p. 41)

Coopers & Lybrand concluded its report to the Committee with the following observa-
tion:

We recognize that the departmental position reflects appropriate concern for obtaining
value for public monies expended, as well as a fear that Indian bands are not ready for full
self-government. Nevertheless, our findings suggest that present administrative and
accountability processes, despite their great costs, are not succeeding in preventing the
very things that the Department is worrying about. Thus at issue is whether Indian band
accountability to their people will produce worse or better results. We are confident that
the portion of total funding that needs be dedicated to administration and accountability
can be reduced.

The Committee strongly endorses the following conclusion of the Coopers & Lybrand
study:

Whether programs will be more effectively delivered and abuses prevented will depend on
the quality of the accountability processes of the lndian bands themselves, including the
leadership they put in power and the administrators they choose. The administrative and
accountability processes of the government of Canada are not processes lndians either
need or can afford, so it is time they start to develop their ownprocesses according to past
traditions and the experience they will gain by actually doing I – Rather than the Depart-
ment deciding whether bands should assume self-governing responsibility based on its cri-
teria, members ofeach band should be allowed to balance the risks against the benefits
they might gain. (Summary report, pp. 41-42)

Basic Requirements of New Arrangements

The two major deficiencies identified in the Committee’s examination of current fund-
ing arrangements for band councils are the retention by the Department and the federal gov-
ernment of control of all policy and programs and the requirement that bands account to the

94

Minister of Indian Affairs for all expenditures. As has been noted several times in this
report, these conditions and requirements frustrate any movement toward self-government.

31. In the Committee’s view, self-government requires that Indian First Nation govern-
ments be free to make policies and to set their own priorities. To ensure that they exercise
such powers responsibly and that the people in turn are protected against wrongful use of
these powers, these governments must also be accountable to those people.

Indian witnesses saw both these needs clearly:

Bands must have the resources and discretion to set their own priorities, set their own
needs, and the financial ability to manifest those priorities. In your report to Parliament, I
would appreciate your stressing this fundamental prerequisite to the development and
enhancement of Indian government. (Grand Council of Treaty No. 3, Special 1:94)

Accountability should be to the members of the affected lndian government. (Indian Asso-
ciation ofA1berta, Sub 11:106)

The Committee directed Coopers 8L Lybrand to examine alternative funding methods
and to suggest arrangements appropriate to lndian self-government, bearing in mind that the
greater part of the funds required for the operation of Indian First Nation governments
would have to be voted by Parliament——either by appropriation or by statute-and pdld out
of the Consolidated Revenue Fund. ‘

Coopers 8L Lybrand systematically reviewed the parliamentary and governmental
requirements under present statutes and regulations for granting appropriation authority.
They also described the differences between grants and contributions, commenting on the
Treasury Board rules relating to them and how the Department of Indian Affairs and North-
ern Development interprets and applies these rules. They examined various funding arrange-
ments by governments and between governments, looking particularly closely at federal-pro-
vincial fiscal arrangements. Finally, they considered the financial systems under which
Crown corporations and various external aid agencies, both public and non-governmental,
operate. In their review of intergovernmental financing, they turned to the Rowell-Sirois
Commission, which had strongly criticized “the conditional grant. .. [as] an inherently
unsatisfactory device. . . We believe it to be more costly. . . [and it] unquestionably leads to
delay and to periodic friction.”

lndian witnesses brought a similar message to the Committee:

We urge the discontinuation of contribution agreements. I urge your Task Force to recom-
mend as a priority that Treasury Board develop, in close consultation—-I repeat, in close
consultation——with the Indian people, a creativc and original procedurc by which transfer
grants may be provided to our bands and tribal councils. (Grand Council of Treaty No. 3,
Special 1:95)

Establishing Accountability

If Indian governments are to be established, they will have to be accountable to their
own people, and accountability to the Department will have to end. It is impossible for a gov-
ernment to be fully accountable to two entities on a matter so basic as the spending of public
moneys.

95

Arrangements that band councils now have for the transfer of funds require councils to
account to the Department in great detail on the expenditure of these funds. Coopers 8L
Lybrand noted that, in addition, even where grants are used, the Department has made a
practice of insisting on extensive conditions. Normally, such grants to non-Indian entities

involve only “limited accountability”. (Summary report, p. 19) In the opinion of Coopers &
Lybrand, a

while the financial control requirements for contributions may be appropriate for pay-
ments to individual persons or companies accountable only to themselves, the grant
approach is more appropriate for self-governing Indian bands who have their own account-
ability to their members. Redesignation of funds now appropriated as contributions so that
the accountability arrangements for grants are permitted, and removal of many of the con-
ditions now imposed on grants, would also greatly lighten the present administrative
burden.

Coopers & Lybrand went on to recommend that:

DIAND rules for funding lndians ought to be revised to better recognize what is appropri-
ate under a concept of Indian self-government. Instead of negotiating contractual type
agreements which are appropriate for agents administering a program on the
Department’s behalf, the Department should adopt a more comprehensive approach
whereby the bands identify their total requirements as part of their own budgetary pro-
cesses, with federal funding being determined for all programs based on a single and much
simpler agreement. (Section 9, p. 37)

An agreement between the federal government agency responsible for disbursing the
funds and each recipient Indian government would thus be necessary. Each agreement would
state the amount of the grant, indicate broadly what government functions it was intended to

cover, and call for, as a minimum, an annual audited financial statement, prepared by an

independent auditor, confirming that the funds had been expended for the agreed purposes.
But within these broad parameters, each Indian First Nation government would be free to
allocate the funds as it judged best according to its own priorities and policies.

The responsible use of funds can best be ensured if internal accountability systems form
an integral part of the new Indian governmental structures. The Committee considers such
arrangements to be crucial and for this reason recommended earlier that federal recognition
of each Indian government should only be accorded if its people have put adequate systems
in place. For the same reason the Committee would strongly urge that grants be made only
to Indian governments whose effective internal accountability arrangements have been rec-
ognized in this way.

The transfer of federal funds to Indian First Nation governments to fulfil agreements
requires parliamentary approval. If a system of grants is introduced, however, the Commit-
tee would not expect a federal minister to be held accountable by Parliament for the way
funds are spent by an Indian government, just as federal ministers are not held to account for
the way provincial governments spend federal equalization payments. This is a very impor-
tant principle. In Canadian parliamentary practice a grant has Iegislative force, and Parlia-
ment takes fullresponsibility for the payment. This is what makes the grant so well suited
for Indian self-government.

96

Source of F unds

Indian witnesses frequently gave reasons for federal payments to Indian governments
being a matter of entitlement:

We ask you to consider the justice of our situation. In signing treaties, we have never sur-
rendered our sovereignty or our resources. If we had controlled or even shared in the
resource development of our area, we would not be in our present position today. (Rainy
Lake Regional Tribal Chiefs, Special 1:19)

The First Nations have already made a one-time-only contribution of resources to Canada
sufficient to capitalize a fund for current payments. (Assembly of First Nations, Special
9:1 1)

Parliament and the government of Canada [should be] committed to the prineiple of mak-
ing statutory payments to ensure that the Indian governments of the First Nations have
sufficient revenue to provide reasonable and comparable levels of public and social services
as guaranteed by the treaties in establishing clearly the fiscal obligations of the federal
government. (Federation of Saskatehewan Indian Nations, Special l2:135)

32. The assets now controlled by Indian governments are not sufficient to support those
governments. It is the Committee’s hope and expectation that claims settlements, Indian
control and development of their land base, new arrangements for resource revenue-sharing
and other long-term entrenched financial arrangements would in due course provide Indian
First Nation governments with assured funding. In the interim, grants will be necessary and
are justified. Nevertheless, the Committee does not wish to see its advocacy of transfer pay-
ments reduce the pressure for progress in settling these other matters.

The federal government is already transferring money to Indian band councils to cover
these costs, under arrangements that are inefficient and costly and threatening to become
more so. A new system of grants, which need not cost the Canadian government any more
than is now being spent, would reinforce self-government by Indian First Nations, and the
funds would be spent more productively.

Canada has a tradition of sharing the national wealth. For many years a system of fed-
eral equalization payments to those provinces whose revenues fall below the national average
lIas been elaborated to permit poorer provincial governments to provide a minimum level of
services. The prineiple of equalization payments has now been entrenched in the Constitu-
Imn. In addition, federal funds are transferred to provinces to support health care, hospital
-.I-rviccs and post-secondary education. Although Established Programs Financing was his-
torically tied to open-ended health and post-secondary education costs, the federal govern-
ment subsequently decided to put a limit on its payments. Since then the federal and provin-
Il.1l governments have been divided over the provinces’ right to spend the money as they
\.\ Isln.

Il is important to note how these payments to provinces are determined and made.
l t tÎl v live years the federal government submits legislation to Parliament to provide a statu-
lut s lmsis for annual payments under these programs. The Committee believes that a compa-
Lllllt‘ practice would be appropriate for Indian First Nation governments and could be
iflïvfltîtl to be more productive and acceptable than the present arrangement. Witnesses
Inellniletl that they favoured such a mechanism:

97

We require an end to the current financial arrangements, which are totally unrelated to
any rational process of economic development. We require an arrangement for equaliza-
tion payments with a built-in adjustment factor similar to those presently enjoyed by the
provinces, which, in the aggregate, have already reached a development stage far above
ours. (Blackfoot Band, Sub 8:90)

The eomparison with treatment of the provinces occurred frequently during the hearings:

If we compare these transfer payments with those received by provincialgovernments,
there are rather startling differences. Provincial equalization payments are untied moneys,
that is, the provincial governments have full authority to determine how these moneys will
be spent. Very few of our transfer payments are untied. We are controlled to a degree that.
no provincial government would tolerate. (Indian Association of Alberta, Sub 8:26)

The prineiple of federal grants is, in the Committee’s opinion, fully justifiable. The
Committee agrees with the testimony of Indian people that they are not receiving charity.
Indian people are entitled, at the very least, to a level of services received as a matter of
course by Canadians.

33. The Committee recommends that future federal payments to Indian First Nation
governments be in the form of direct grants. Such payments should be made to all Indian
First Nation governments recognized by the federal government as being accountable to
their people.

The Committee considers it necessary to make explicit a point implicit in its advocacy of
this arrangement. Once an Indian First Nation government was recognized by the federal
government, with an adequate system of accountability in place, that government would be
entitled to funding in the form of a grant. The First Nation government itself would decide
whether to accept this grant, balancing the risks of the decision against the benefits and
assuming responsibility if it decided to accept the grant.

Funding Principles

The Committee envisages that recognized Indian First Nation governments would
receive a single payment for government opérations and the delivery of all services. Under
this system the funds would not be earmarked; for example, funds for health care would no
longer be provided separately. Each Indian First Nation government would decide how to
allocate its funds among social services, health care, housing, education, and other programs.

Similarly, Indian First Nation governments would be free to choose the mechanism for
providing services. It can be assumed that Indian First Nation governments would provide
many governmental services themselves. Alternatively, they could contract with a provincial
government, a municipality, a private agency, a tribal council or even the federal govern-
ment. In the case of medical services, for example, Indian First Nation governments might
find it more suitable to contract with an area medical facility. The essential prineiple is that
each government would make its own decisions and agreements, applying its own values and
standards, rather than having them imposed from outside.

An exception to the single payment concept should be made for economic development
and for funding to correct serious deficiencies in basic community infrastructure. In these
areas, needs and potential vary, and a different basis for disbursing the funds is justified.

98

At present, apart from core funding for band councils, the federal government, through
a variety of channels, makes payments direct to tribal councils, to the Assembly of First
Nations and to numerous other Indian organizations. Once the new funding arrangements
are in place, lndian First Nation governments should decide what powers and what financial
resources they are prepared to provide to entities such as tribal councils and regional, provin-
cial and national organizations. But until the new arrangements are in place, basic needs are
met, and moneys are more readily available for political funding, the transition should be
effected slowly.

Special federal programs available to all Canadians as individuals should also be avail-
able to individual Indian people. An example would be payments for installing insulation in
older houses, which are paid to any Canadian who takes advantage of the legislation,
although that person must conform with the conditions of the program and must make an
application. In such instances, as well as for national programs such as unemployment insur-
ance, the Committee concluded that people of the First Nations should be eligible in the
same way as other beneficiaries.

A few witnesses advocated the appropriation of special funds to cover the salaries of
Indian government officials. If the salaries of officials of Indian First Nation governments
were funded separately, the accountability link between the people and their officials would
be weakened. In the Committee’s view, decisions on salaries should be made by each commu-
nIty.

The Committee believes that it would be essential in the early years to ensure that train-
ing requirements were taken into account in determining the financial needs of Indian First
Nation governments. The situation of Indian peoples has notvpermitted the development of a
cadre of leaders and administrators. With Indian people assuming control of their own

affairs, it can be assumed that they will want training programs, and it is important that
they have the means to obtain them.

Disbursing Funds

The Committee has documented the problems resulting from the present funding
arrangements under which the department disbursing funds is also responsible for advising
on and monitoring their use and for the delivery of services. The answer would appear to be
to separate funding from policy and program delivery, similar to the practice adopted by
several provinces for funding universities and municipalities. This was the advice of Coopers
8L Lybrand, who recommended a funding agency that had “no program delivery or other
responsibilities that might be in conflict with its funding responsibilities.”

An approach to ‘disbursing funds consistent with the Committee’s advocacy of govern-
ment-to-government relations would be for each Indian First Nation government to negoti-
ate directly with the federal government. While this would allow for flexibility and diversity
in meeting the separate needs of Indian First Nation governments, the negotiations would be
extensive and time-consuming. With hundreds of separate agreements to work out, this
approach could be unfair to some, and the more sophisticated Indian First Nation govern-
ments could be at an advantage.

99

34. The alternative favoured by the Committee would be to fund First Nations govern-
ment operations through a modified per capita formula. This would ensure equity and
greatly facilitate disbursement. It would be important to elaborate a formula that provides
for adjustments, since the relative needs of communities vary. The Committee is convinced
that an acceptable formula could be worked out between the federal government and Indian
First Nation governments. In addition, there might be funding for exceptional needs.

The Committee is aware that determining the total amount of money to be transferred
annually to Indian First Nation governments would not be easy. In the Committee’s view, an
appropriate yardstiek would be to allocate sufficient funds to provide governmental and
social services comparable to those enjoyed by non-Indian people living in neighbouring com-
munities.

Provincial government entitlements under Established Programs Financing (EPF) are
based on per capita calculations, which now include Indian residents of provinces. Yet
several witnesses claimed that Indian people did not get their fair share of benefits from
these funds. The Committee urges that this matter be examined carefully, including the idea
of adding an EPF component to Indian funding and reducing the transfer to a province by a
corresponding amount when transfer payments are being calculated.

Several witnesses advocated the creation of a Canada-First Nations Fiscal Arrange-
ments Commission to negotiate the global amount of funding available for disbursement and
to handle the problem of actually disbursing these funds to individual Indian governments.
While convinced that the disbursement of funds to Indian First Nation governments must be
separated from program delivery, the Committee does not wish to prejudice negotiations by
recommending the mechanism for disbursing the funds.

There will certainly be a need for a minister——perhaps the Minister of State for Indian
First Nations Relations mentioned earlier-—with responsibility for acting on behalf of the
federal government to negotiate the global funding for First Nation governments. On the
Indian side, representatives of recognized First Nation governments would have to be desig-
nated as negotiators. Apart from settling on a global figure, the two sides would have to
work out a broad division of the total figure between funds for government operations on the
one hand and for economic development and correcting serious infrastructure deficiencies on
the other. Finally, the two sides would need to establish a formula for determining the per
capita payments.

Once the global amount had been established, the broad breakdown between catégories
worked out, and a formula for allocating funds among recognized governments devised, the
actual disbursement could be handled by a small agency of the federal government or by a
fiscal arrangements commission. The specific tasks of such an agency would be to make pay-
ments to First Nation governments, to receive the annual audited statements of recognized
governments, and to consider questions arising out of the application of the formula.

With regard to funds for economic development, some witnesses suggested an economic
development agency to make funds available to enterprises, agencies, co-operatives or Indian
First Nation governments for economic development. Possible models mentioned included
the Canadian International Development Agency (CIDA), the International Development
Research Centre, or a non-governmental organization. The Committee decided not to make

100

a specific recommendation. The Coopers & Lybrand study criticized the CIDA model on the
grounds that CIDA suffered from many of the same deficiencies as the Department of Indian
Affairs and Northern Development. Coopers & Lybrand nevertheless recommended that a
separate agency be established to disburse economic development funds. The Committee felt
that the structure and mechanism for doing this should be developed in negotiations between
the federal government and Indian First Nations.

It is most important that Indian First Nation governments have assured funding so as to
be able to make firm long-term plans. The same arrangements that prevail for equalization
and Established Programs Financing payments to provinces-——a statute providing funding
authority for a five-year period-—-would seem to be the most appropriate. Such an approach
would lead to the automatic transfer of funds to the agreed funding agency during the five
years covered by the legislation. Indexing could cover such factors as inflation and popula-
tion growth.

35. The Committee recommends that the global amount of funding for F irst Nations
government operations, for economic development, and for the correction of serious infra-
structure deficiencies be determined in negotiations between the federal government and
designated representatives of Indian First Nations. The Committee further recommends
that Parliament be asked every five years to approve the global amount of funding by means
of statute. The structures and mechanisms through which the funds for each of these three
categories would be disbursed should also be settled by negotiation.

Funding of Bands Not Opting for Self-Government

The Committee anticipates that some Indian bands might not wish, at least initially, to
exercise the responsibilities involved in self-government. Some might decide to defer such a
step until they have had the necessary training and have staff and systems in place. In such
situations witnesses suggested, and the Committee agrees, that special funding be provided
for development and training. To ensure that government services are available, the Commit-
tee proposes that any such band join with the federal funding agency to contract with a
tribal council, another Indian government, a private enterprise, or the Department of Indian
Affairs and Northern Development to provide the services.

Conclusion

Canada has developed innovative fiscal arrangements to ensure that provincial govern-
ments are able to offer roughly comparable services to Canadians in all parts of the country.
There is no reason to be any less innovative in funding Indian First Nation governments,
whose diversity is even greater. In proposing a system of grants to be disbursed by a new and
jointly agreed upon distribution agency, the Committee believes that it has recommended fis-
cal arrangements that meet the needs of the situation. Nevertheless, the Committee is well
aware that, as Chief Jim Bear said in his testimony, “the precise mechanism and level of
transfer is a matter for political negotiations between Indian people and the federal and pro-
vincial governments. . (Special 3:63)

101

The Committee is urging this approach for two important reasons: first, because such a
funding arrangement is essential to reinforce and provide for the exercise of Indian First
Nation self-government; and second, the Committee believes that this approach would
reduce unnecessary administrative costs and represent the best use of scarce funds. The
needs of Indian First Nation governments are great, and there are bound to be limits to the
funds the federal government will be able to provide. It is important to have in place fiscal
arrangements that will make the available funds reach as far as possible.

102

CHAPTER 8

LANDS AND RESOURCES

Introduction

For Indian people, land is much more than a source of profit and wealth creation or a
place in which to reside temporarily. Their attachment to the land is part of a spiritual rela-
tionship with the universe, its elements and its creatures. lndian people see themselves as
caretakers of the land and its resources. Land is thus a prerequisite for and vital to self-gov-
ernment. Indian people assert that their rights flow from their relationship with the land.
Aboriginal title pertains to the historical connection that lndian people have always had to
the land and to the interrelationship of land with all aspects of life——language, culture, and
economic and political systems.

Our people have owned and cared for the land since time immemorial. This is why we
demand that aboriginal title must be recognized in the Constitution. The land, language,
and laws of our culture cannot be separated. Everything for the Nishga people—our way
of life, our means of earning incomc, our relationships with each other and with the rest of
the world——all are based on our ownership of our land. This is why our people say that
self-government is our right, as a collective people, to protect our lands, to protect our cul-
ture, and to pursue and strengthen our way of life in every respect. (Nishga Tribal Coun-
cil, Special 7:31)

In some parts of Canada, treaties were negotiated with Indian governments so land
could be settled. The signing of treaties affected aboriginal title. Indian people see treaties as
affirming rights and establishing the sharing of land and resources, while non-Indian govern-
ments view treaties as extinguishing Indian rights to land and resources.

When the white people came to this country they sought the right to occupy some of our
lands to till the soil and provide for themselves, and wanted to formalize our consent
through a treaty. Our chiefs, acting in their rightful capacity as the leaders of Indian gov-
ernments, were prepared to offer such consent in a formal treaty. All the chiefs agreed to

105

4;: ,,,, —’

do was t0 allow the white people to live on the land and to till the soil. Our forefathers

agreed to give up no more than this in the treaty agreement. (Yellowhead Tribal Council,
Sub 10:32)

Reserves

Indian witnesses considered the non-Indian view of reserves as property provided to
lndians by the government to be historically inaccurate. Rather these were areas that Indi-
ans reserved for themselves under treaties, or were part of lands that they never surrendered:

When we established those reserves, those were established under the Proclamation and
the treaty process, and they were reserved lands, reserved with sovereignty intact for gen-
erations by our people. They were not lands that were acquired by the Crown and granted
to us later. The Crown did not have any land to give to us at the time of treaty; we had a11
the lands. We granted you conditional access to those lands. (Federation of Saskatehewan
Indian Nations, Sub 16:18)

Non-Indian perceptions have led to a legal framework—found in the Indian Act and in
court decisions, beginning with the St. Catherine’s Milling case-——that rellects an entirely
different interpretation.

The Indian Act describes a reserve as “a tract of land, the legal title to which is vested
in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a band”.
In the St. Catherines Milling case, the Indian interest in land was characterized as a “mere
burden” on provincial title to land. While other cases have described the Indian interest in
stronger terms, the courts have held that the provinces had the ultimate title to reserves, once
the Indian interest was surrendered. That underlying approach has been altered by federal-
provincial agreements in all parts of Canada except Quebec and Prince Edward Island, with
the result that full rights to manage reserve lands, both before and after surrender, are with
the band and the federal government. Those concepts do not accord with the Indian view
that full rights for reserve lands lie with them.

The legal concept of “reserve” under the Indian Act and departmental policies in regard
to land rights have created problems, even for Indian communities in isolated locations. For
example, the Committee held hearings in Lansdowne House, in an unsettled part of northern
Ontario. The community is situated on land not recognized as a reserve, although Indian
people have always lived in the area. The community has been built by the Department on a
swamp, distant from wood supplies, and where drinking water is contaminated. The people
of Lansdowne House have been unable to get permission to relocate nearby:

. . . the province of Ontario views our lands as Crown lands and therefore under its owner-
ship and control. The province wants us to get approval from them and the proper provin-
cial permit in order to use our own lands. The Department of Indian Affairs sides with the
province in our dispute over lands because it is the view of the government of Canada that
the Nishnawbe-Aski surrendered their lands except for the reserves. The Department of
Indian Affairs is therefore reluctant to help us in our relocation because we have a land
dispute with the province. (Central Tribal Council, Special 37:12)

106

Goodstoney and several minor chiefs orcouncillors, told the treaty commissioners: p

use the landfor plowing and g rcw ing cr ops. You can raise your cattleiand l
homes for yourfamilieâ. l l l A r

g The treaty agreement, t0 oIirpeople, was, peaceagreement. Itwas an
the land in peace.

But we never agreed to surr,e”’nder .eithe.r theland or the minerai rights. p
Our people never agreed .to surrender anyof our rights. (Bearspaw Band, Sub

Our forefatherslbelievedthat the Gland belonged to no person.’ In theireyes, itwas
It belonged to the Great Spifrit. They be:1iev ed th at,, as long as, they were allowedtio

for food, there would be no , cau se to ,t b€ a .Ïfaid fortheir futureThey could not imagineÎ.Ï gq
people claiming ownershipso’f—1 and.p . 1 a ‘ ‘

Our forefathersdid t.h at t îreserv.esweremeantg to be set aside as portionssltt’)
land intended fully to ‘SÜPIÏOIÏIÂIS as farmers and ranchers. a a a 1 a
The federal governmen t lands to in e province 193c.
since that time, ourp r ight j.bec n ch i.sl e:d awayin favour (cf makingpark
recréation areas, and 1 a

Today, we know that want to be as sured,. our .
A be recognized by the federalgovernmentrfi-Ëfas(being completely and i.n dsisputa bly oursto
and control. This assurance, iriu st, . .be(theïfirst step in the direction of (Indian“self-govern.

ment. (Chiniquay Band,’Snb’: 8:5,9- 6’0) ’ ,’, s

25″23“

(ÎŒDDËÇL

The federal government’s justification for retaining the power to manage reserve lands,
as set out in the Indian Act, is that this is necessary to prevent non-lndians from taking
advantage of lndians. Historically, it was feared that lndians might make improvident dispo-
sitions of their lands. Yet, as the Committee’s research study on the trust relationship

revealed, the federal government disposed of huge tracts of land without necessarily consid-
ering the best interests of lndians.

In some instances bands’ land bases were substantially reduced through involuntary sur-
renders of land for such purposes as railways, highways, dams and army bases. The Kitsum-
kalum Band, for example, described how it had lost half its reserve to rights of way and
lcases. (Special 7:70) Chief Phil Goulais of the Nipissing Band described other instances
where land surrenders had resulted in the loss of land.

Many of the bands have lost land in the last number of years by different means. Some of
them are called surrenders of land, and some could be deemed invalid. There have been
shoreline erosions of the bands’ property, caused by power project damming, the raising
and lowering of water levels causing shoreline erosion and flooding. Those are specific

items that have contributed to the loss of our land base for many of our bands. (Special
14:54-55)

The Indian Act reveals many non-Indian assumptions about the relationship between
i Jlliltltl and Indian people. The Act describes how reserve land can be alienated (an all-

107

The Stoney tribal rleatlerssled iby Chief ljîearspaw, Chief JohnWCllînlkÎ,

We will never give you (.the Iand, but wewill share the land with you. We

encompassing legal expression meaning the disposal of land by sale, lease or any other
means), but does not say how bands can acquire land. It was assumed that the Indian popu-
lation would gradually decline and eventually disappear.

The Indian Act establishes a unique system of land-holding on Indian reserves; it was
intended to promote the transition from a collective system of land-holding to one emphasiz-
ing individual ownership similar to that used by non-lndians. A band member may obtain
the right to use and occupy a portion of the reserve through an allotment system. Under sec-
tion 20(1) of the Act he may possess land allotted to him by the band council and approved
by the Minister. A Certificate of Possession is issued by the Registrar of Indian Lands to the
individual, who must use the land in accordance with band by-laws and the provisions of the
Act. The Act also provides for the use of land on a temporary or conditional basis. In such
instances, a Certificate of Occupation allows an lndian to occupy the land for a renewable 2-
year period.

Many bands do not use these certificates or other Indian Act provisions regarding land-
holding. They follow band custom or make allotments at the pleasure of the band council.
Some bands explained that they did not use the allotment system because the legislation is
vague and ministerial discretion is excessive. c

The allotment system is little understood and much ignored by bands. This creates confu-
sion between the rights of the individual allotee and the collective rights of his or her
band….

The system is described so badly in legislation, and is so subordinated to the discretion of
the Minister, that it is in many cases impossible to establish priorities between the
individual and the band or between the individual and the government. (Association of
Iroquois and Allied lndians, Special 16A:7, 20)

More importantly, the allotment system is fundamentally different from the customary
land-holding practices common to many Indian First Nations. Over the years, the balance of
rights maintained through traditional practices has been disturbed by the operation of the
Indian Act and federal policies. As well, tension has been created between the rights of exist-
ing members of an Indian First Nation and the rights of future generations of members, who
are also to benefit from the land and its resources.

The Committee is fully in accord with the prineiple that Indian First Nation lands
should be under the control of Indian First Nations. Moreover, it is the responsibility of the
federal government to manage its special relationship with each First Nation in such’ a way
that each First Nation’s lands will be maintained for its use.

We would like title to our reserve lands. The recent decision of the Federal Court of
Appeal in the Musqueam case says that the Department has no legal responsibility as
titleholder. This is totally unsatisfactory, and the Department can have no legitimate rea-
son for clinging to this title any longer. (Sechelt Indian Band Council, Special 6:97)

We want to be assured that our lands will be recognized by the federal government to be
completely and undisputably ours to own and control. That assurance must be the first
step in the direction of Indian self-government. (Chiniquay Band, Sub 8:60)

36. The Committee is convinced that, in order to ensure that self-government becomes a
reality, each Indian First Nation must have full rights to control its own lands in the manner

108

it sees fit. This would mean power to decide upon methods of land-holding and land manage-
ment on reserves. Such areas should be recognized as Indian lands.

37. The Committee recommends that the federal government promote the constitutional
change necessary to recognize in law full Indian First Nation rights to the lands, waters and
resources of all areas now classified as reserves or in future considered as Indian lands. In
the interim, the Committee urges the federal government and designated representatives of
Indian First Nations to agree upon the measures now possible to achieve these objectives.

Indian First Nation Lands and Resources

Once these changes were made, Indian First Nation governments would exercise full
control over the resources on reserves and would receive any royalties generated from them.
This is consistent with the general thrust of this report that Indian First Nation governments
should have exclusive jurisdiction over activities on reserves. Furthcrmore, lndian First
Nation governments would be responsible for the use and management of these funds and
would be accountable to their people for the disposition of such moneys.

Under the Indian Act much reserve land has been conditionally surrendered to permit
leasing and development. In future, such matters would be under Indian First Nation con-
trol, and there would be no new surrenders. Indian First Nations would make their own leas-
ing arrangements, and the basic legal status of the lands——that is, “Indian lands”———would
notchange. ’

For lands currently classified as ‘conditionally surrendered’ for uses such as shopping
centres, golf courses or timber harvesting, there will need to be a review by representatives of
the federal government and the -Indian First Nation concerned. New agreements as to future
management and jurisdiction should take into account other interests in the land, particu-
larly those of lessees.

The land base of an Indian First Nation could not be sold off and become part of
another jurisdiction; it would always remain under Indian First Nation control.

Should the people of an Indian First Nation decide that it is in their best interests to
exchange, sell, or otherwise alienate their interests in lands or non-renewable resources, the
Committee is of the view that the federal government should not interfere in this matter. The
people of an Indian First Nation would ensure through their own form of government that
they had made adequate provision for themselves and for future generations. In these cir-
cumstances, the Committee does not see the need for external constraints on the sale or
mortgaging of these lands.

38. The Committee recommends that there be an official Registry of Indian First
Nation lands. It would hold records of land under Indian First Nation control, to be distin-
guished from federal and provincial lands.

The combination of collective ownership by the First Nation and the jurisdiction of the
lndian First Nation government leads to a unique situation. Indian First Nation govern-
ments serve not only in governmental matters but, in some ways, also represent their mem-
bers’ interests in assets owned in common. In this way, Indian First Nation governments are

109

different from municipal and provincial governments. This poses a special problem in regard
to non-lndians living on Indian lands, who might feel that, as residents, they have a right to
participate in the government of the community. Yet, as non-members, they do not share in
the ownership of the assets administered by that government and have no right to a voice in
such matters. Aboriginal rights should predominate over any claims of non-members to pro-
tection under the Charter of Rights. Only those people whom an Indian First Nation decides
to include in membership should have the right to participate in the selection of that First
Nation government or to participate in its governmental affairs.

Indian reserves as they were set aside were meant for Indian people. As more and more
non-Indian people move onto the reserves, it becomes more and more difficult. I am not
talking only about non-Indian people, but also in terms of development. It makes it dif-
ficult for us to survive as Indian people, because along with these people come their own
laws and regulations, whether it be through an understanding through the person who
owns the land that they have rights on an Indian reserve——and the Charter of Rights could
very well -determine that. White people or non-lndians living on a reserve under thc
Charter of Rights may even have power and authority one day to elect the chief. They
might have that power. (First Nations of South Islands Tribal Council, Special 4:54—55)

Indian Interests in Other Lands

39. Indian First Nation control of Indian lands is the first and most obvious move
needed to promote self-government. lndians also call for recognition of certain rights based
on treaties or aboriginal title to traditional hunting and trapping areas.

Indian witnesses asserted an interest in lands that have not been alienated from lndian
control through a consensual process. Indian communities are not always located on these
lands. They claim some rights because of original use and occupation of a much larger area.
In addition they point to treaty provisions by which lndians intended only to share land, not
relinquish it completely. Indian witnesses emphasized consistently that their rights did not
end at the boundaries of reserves. Instead, emphasizing the need to develop mechanisms
whereby Indian people could participate in the control and management of these lands and
resources, they advocated a system of coexistence and not the exclusion of other interests.

The economies of many Indian communities have been threatened by the development
of large-scale resource projects, logging operations, dams and irrigation projects launched
with little or no involvement of Indian people. For example, Indian bands that hunt and trap,
activities requiring a large land base, can be severely affected by a development such as a
dam hundreds of miles away. Indian First Nation governments want to share in decision-
making on actions that affect their lands and resources. With Indian First Nation govern-
ments in place, development on lands where lndians claim rights would thus have to be
decided by all governments involved in the matter. Similarly, on questions of resource
development, the interests and concerns of Indian First Nation governments would have to
be taken into account by other levels of government.

40. In the past, external control has meant that Indian people have not shared fully in
the financial benefits of revenues arising from development of such resources as minerals,
oil and gas. These revenues could have a significant effect in the development of a viable
economic base, enabling Indian First Nation governments to become self-sufficient.

110

Lands North of 60°

The people of the Indian First Nations in the North face a particularly difficult choice.
They constitute a large percentage of the population and are considering alternatives to the
reserve system as means of holding land. The resolution of land and rights disputes in the
Territories is an opportunity and obligation for the present generation to be generous and
honest and to ensure that the indigenous people of the North are the primary beneficiaries of
development there, with a fair share of resources now and in the future. In doing that, the
federal government will have to take into account the wishes of the indigenous people and
recognize means of land-holding and control different from those used in southern Canada.

Restoration of the Land and Resource Base

An adequate land and resource base was seen as a prerequisite to self-government;
Indian First Nations must have enough land for their members. Increased population
through natural growth or the return of members now living away from reserves will put
additional pressures on existing lands.

One significant factor to be taken into account is the possibility that Indian people rein-
stated by changes to the Indian Act may wish to return to their reserves. If large numbers of
people move back, this will put pressure on the land base and community resources.

The Sub-committee on Indian Women and the Indian Act recommended reinstatement
of Indian status under the Indian Act, upon application, for all women who had lost status
and for their first-generation offspring. The Sub-committee noted that reinstatement would
result in increased band membership and in possible demands for additional land and
resources.

Many witnesses spoke of the need for additional land to accommodate the increased
population that could result from reinstatement.

In those tribes where there is need for reinstatement, resources including land and finan-
cial,’ should be made available to assist the process. (Carrier-Sekani Tribal Council, Spe-
cial 20:36)

41. The Committee recommends that any reinstatement of members mandated by the
federal government should include a review to determine the additional resources necessary
to cover the needs of reinstated people and to recommend a mechanism to provide them.

As indicated in the Committee’s economic foundations study, an adequate land base is
“fundamental to future economic development, self-reliance and self-government”. (p. 1 13)

Primarily, there has to be an absolute connection between land, resources and self-suffic-
iency in Indian government. Without land, without resources, there is no self-sufficiency;

lll

and without being self-sufficient, there is no Indian government. So it is our premise that
we have to have the land before we can actually make the advancements in the resource
development to attain that self-sufficiency. (Association of Iroquois and Allied lndians,
Special 16223,32)

In earlier negotiations on lands for reserves, there was a tendency to set aside land in
rural or remote areas. In some instances Indian people themselves preferred these locations,
but times and circumstances have changed. Indian First Nations should not be limited to a
land-based economy if that is not their wish, but should be free to pursue a variety of eco-
nomic ventures. Expansion of the land and resource base could include expansion into urban,
rural or isolated locations as determined by individual Indian First Nation governments.

Over the years Canadian governments have responded negatively to land claims made
by lndians, often maintaining that there is no unsettled land available or going to great
lengths to rebut the rationale for the claims. Unfortunately this negative attitude to lndian
land rights has been shared by too many Canadians.

It is essential to point out the false premise and injustice of this response. While
Canadian governments have been slow to find land to settle the Nishga claim, the B.C. cut-
off claims, the Prairie entitlements, and many others, they have had no trouble finding land
for much larger national parks, defence bases, hydro developments, airports and resource
projects. Canada has set aside 130,168 square kilometres for national parks, yet only 26,335
square kilometres for Indian reserves. The Committee does not dispute the need for parks,
defence bases and airports; but surely the land rights of the original inhabitants of this conti-
nent deserve as much or more attention. Canadians who consider themselves just and fair
must reconsider their views on this matter. The government should commit itself to this
endeavour with at least the same effort it devotes to finding land for government projects.

One of the most distressing problems the Committee encountered were bands that had
no reserves; the Lubicon and Conne River Bands are two examples. Some were living on
Crown land, others were scattered. There were also bands that had land, but whose members
had moved away because of earlier DIAND policies denying them services, housing, schools,
and roads.

42. The Committee recommends that the federal government give high priority to pro-
viding a land base for those Indian communities now without a reserve.

Other ways of increasing Indian lands include the fulfilment of outstanding treaty obli-
gations. In some cases negotiations over the choice of a reserve have been going on for
decades. It is now time for action to settle these oustanding entitlements. The land selected
should be satisfactory to the Indian First Nation government concerned.

43. The Committee recommends that the federal government establish as a priority the
fulfilment of land entitlements and settlements of other claims.

All claims should be considered promptly and settled fairly. Dissatisfaction with the
current land claims policy and process was expressed thoughout the hearings; the following
section of this chapter is therefore devoted to this significant subject.

112

44. The Committee recommends that the main way of expanding the land and resource
base of Indian First Nation governments be through a just and effective land claims process.

After entitlements to land have been fulfilled and after land claims have been settled,
Indian First Nations may wish to increase their land base further by buying additional land.
Under the present provisions of the Indian Act, band corporations can purchase land, but
this. land is not considered to be “Lands reserved for the lndians”.

The Committee agrees that lndian First Nation governments should be able to buy
additional lands and that they would have ownership of such lands, but jurisdiction raises
special problems. Should Indian First Nation governments wish_ to acquire jurisdiction over
land they have purchased, this matter could be resolved only through trilateral discussion.
Jurisdiction might be transferred if arrangements could be made to accommodate provincial
interests. For example, provincial reluctance to transfer jurisdiction because of the loss of a
local tax base on the land in question might be overcome through the guarantee of an ex
gratia payment to cover the potential loss of tax revenue. In other instances, the cost of ser-
vicing the land might be greater than tax revenues, and a province might willingly agree to

transferjurisdiction. As well, joint jurisdictional agreements could be negotiated.

The Committee has recommended a system of per capita payments to cover the cost of
government operations and additional funding for economic development and for correcting
infrastructure deficiencies. The arrangements for federal fiscal transfers should be put in
place as soon as lndian First Nation governments have been established and recognized. But
the Committee attaches equal importance to the speedy introduction of a new claims settle-
ment policy and process as well as to other measures to enhance the land and resource base
for Indian self-government. The settlement of claims would provide an independent eco-

nomic base for Indian First Nation governments and render them less dependent on federal
financial support.

The Resolution of Claims

Many witnesses asserted that land claims settlements were essential to the exercise of
self-government, in that they would provide an economic base.

Until our land claim is recognized and until the government of Canada recognizes our
land base and our territorial jurisdiction, Indian self-government will be an illusion. The
government of Canada must seriously undertake to negotiate our land claims so that our
people will have a land base upon which to build our Indian self-government. (Kanesatake
Mohawk Nation, Special 30:136)

Without land, without resources, there is no self-sufficiency; and without being self-suffi-
cient, there is no Indian government. So it is our premise that we have to have the land
before we can actually make the advancements in the resource development to attain that
self-sufficiency. (Association of Iroquois and Allied lndians, Special 16:32)

_The claims issue persisted for years before the federal government acted to recognize
them. To illustrate their frustration, some witnesses quoted testimony before federal commit-
lccs and commissions dating back to 1915 and earlier about situations that are still
Iinrcsolved.

113

In 1974 the federal government established the Office of Native Claims within DIAND
to negotiate the settlement of claims, which it considers to be of two types. The government
has designated as ‘specific’ those claims relating to the administration of land and other
assets and to the fulfilment of treaties—-—that is, claims relating to lands that had been part of
reserves or that, by treaty, should have been set aside. ‘Comprehensive’ claims are those
based on aboriginal title. Recent government policy statements on these claims are contained
in two publications, In All Fairness and Outstanding Business. Witnesses were extremely
critical of the government’s claims policies. A witness described one of the publications as

. . .written for the public in the corporate world, and created by a very slick process to cre-
ate in the public mind a definition of what is fair; then, clearly, anything that falls outside

that definition is unfair, unrealistic, not pragmatic, radical, etcetera. It is a very, very
insidious document in that respect. (Nishga Tribal Council, Special 7:54)

Many witnesses objected to the fact that land claims policy and procedures are defined
by government decision rather than by legislation. They pointed to the conflict of interest
inherent in departmental control of a process set up to decide upon the rights and entitlement
of bands whose claims arise from the actions or inaction of the same Department. Many alle-
gations related to breaches of the government’s trust responsibility to manage lands “for the
benefit of Indians”, questionable surrenders in which the role of DIAND officials is chal-
lenged, and failure to fulfil treaty obligations. Government legal opinions, which are not
available to the band making the claim and cannot be challenged, determine both the valid-
ity of claims and eligibility for funding to pursue the matter further. When a claim is
rejected, no substantiation is given. This process was condemned by Indian witnesses for its
lack of independence from the federal government and for its unilateral imposition of condi-
tions. Although many claims have been filed since the Office of Native Claims was estab-
lished, few have been settled:

The federal government right now is judge, jury, executor. They are everything rolled into
one, and that is specifically the problem now. When negotiations break down there is no
way we can arbitrate that situation. It is totally in the hands of the government to deter-
mine what they want to do with that process if we do not want to negotiate any further or
if we fail to come to an agreement on negotiation. So anything where we could take some
of the authority away from the federal government in that dealing would be of benefit. It
would be a positive step. (Association of Iroquois and Allied lndians, Special 16:25)

It is a strange rationale to allow a bureaucrat to have the power to decide on what is and
what is not a legitimate land claim. In the policy established for the settlement of specific
land claims, it is the lawyers of the Department of Indian Affairs and the Department of
Justice who determine the merit of the claim. In this way, they are both defendant and
judge. To further complicate matters, the opinions they write regarding the claims are
confidential. Therefore it is safe to state that they have taken on the role of protecting the
federal government and the provinces from claims that may be filed by the First Nations.
Claims that they feel have merit they will negotiate out of court, although the compensa-
tion they would award would be in proportion to the strength of the claim. So in this case
it would be best to go to court in order to ensure fair treatment. (Restigouche Band, Spe-
cial 22:10)

Strong criticism was directed at limitations imposed on the filing of claims. Claims
related to treaties or other events prior to Confederation cannot be considered under the
present policy. Legitimate griévances may not be entertained if the claims have been
superseded by law, a strange concept under which a law passed since the situation arose can
be asserted to have erased the government’s lawful obligation.

114

4.-)

(u Frêh“

330C!)

This concept of superseding by law will unilaterally abrogate the Micmac title, which was
protected by the 1752 Treaty of Friendship and Peace and the Royal Proclamation of
1763. This policy violates a prineiple of international ‘law as set out in The Declaration of
Principles for the Defense of the Indigenous Nations and Peoples of the Western Hemis-
phere, passed by the international non-governmental organization, Conference on Dis-

crimination Against Indigenous Populations in the Americas, in 1977. (Restigouche Band,
Special 22:11)

Objection was also taken to the fact that the resolution of land claims now rests entirely
with the executive. lt is neither open to parliamentary scrutiny nor is there access to the judi-
cial system or an independent tribunal.

Witnesses pointed out that the current policy was developed without the involvement of
Indian people:

This policy was developed internally by the Department of lndian Affairs, utterly disre-
garding in its formulation the strong recommendations of Indian organizations across

Canada, and especially Ontario, regarding principles and mechanisms for claims settle-
ment. (Onegaming Band, Special 1:49)

In the view of lndian witnesses, claims should be open for periodic review and should include
settlements of political as well as land issues. The federal government, on the other hand,
states that claims are to be settled finally and should not include issues of political develop-
ment. Nonetheless, in Yukon and the Northwest Territories, there have been political discus-
sions as part of the land claim negotiations.

The research study on the economic foundations of self-government seriously questioned
the use of the James Bay and Northern Quebec Agreement as a model for land claims settle-
ments. While the Agreement has brought benefits to the Cree, there have also been major
problems, particularly in implementing the Agreement. In keeping with the prineiple of

respect for the diversity of Indian nations, the Committee concludes that there should be no

single model for claims settlements.

45. The Committee is firmly convinced that there must be a new policy to promote the
fair and just resolution of outstanding claims consistent with the protection of aboriginal
and treaty rights in the Constitution. The federal government and designated representa-
tives of Indian F irst Nations should undertake negotiations regarding a new claims settle-
ment process to be set out in legislation.

46. While the details of the new policy and process should be decided through bilateral
negotiations, the Committee does wish to set out certain principles that should be included.

47. It is imperative that the new process be shielded from political intervention. It
should be set out in legislation so that it cannot be readily changed. Claims should be nego-
tiated between the government and the claimant with a neutral party to facilitate the settle-
ment. Where a settlement cannot be reached, there should be access to a quasi-judicial pro-
ct-ss. For Indian First Nation governments to participate effectively in claims negotiations,
they must have adequate financial support. Finally, under the new policy, pre-Confederation

treaties and other rights should be recognized, and claims should not be regarded as being
superseded by law.

115

The Committee is also critical of the present policy of extinguishment in native claims
settlements, whereby all residual aboriginal rights not specifically recognized in the settle-
ment are terminated and extinguished. By contrast, the government’s residual rights are not
subject to extinguishment.

48. The Committee recommends that the doctrine of extinguishment be eliminated from
the settlement of claims; settlement agreements should be limited to those matters specifi-
cally negotiated.

In the past the federal government has been slow in settling claims. The time has come
to change this attitude by adopting an explicit policy of settling claims in a fair, just and
prompt manner. Behind the policy should be the prineiple that Canada is obligated to restore
a strong economic base to those who have shared their land and resources. Such an acknowl-
edgement would recognize the original contribution of lndian people to the growth and
development of Canada.

A federal decision to pursue a speedy settlement of claims would require the federal
government to deal with the provinces. There should be every effort to involve the provinces
where appropriate in co-operative efforts to settle claims. The claims process should also
include periodic joint reviews so that new situations can be accommodated as they arise.

j‘ i t-ŸzlÎ

.. . .
‘irtir Iÿnrftnvltïsisr;

CHAPTER 9

THE TRUST RELATIONSHIP

The enduring nature of the special relationship, often described as a trust relationship,
between “Her Majesty the Queen” and the Indian nations of North America is described in
the following passage:

It -was, and continues to be, of fundamental importance to the Indian Nations that they
treated with the Royal Majesty. The elders understood they were entering into a sacred
relationship of trust with another sovereign which would endure the passage of time and
governments. The duration of the promises and their inviolability was also important to
the Royal Majesty’s representatives who stated:

The Queen has to think of what will come long after today. Therefore, the promises
we have to make to you are not for today only but for tomorrow, not only for you but
for your children born and unborn, and the promises we make will be carried out as
long as the sun shines above and the water flows in the ocean.

(Mémorandum of law presented by the Union of British Columbia Indian Chiefs, the
Indian Association of Alberta and the Four Nations Confederacy at the time of patriation
of the Constitution, Special 16A:17)

The Indian nations in the early colonial period entered into direct negotiations and
agreements with the imperial authorities colonizing North America. Agreements made at
that time were set out in treaties and in British colonial policy, particularly as stated in the
Royal Proclamation of 1763. These were early expressions of this longstanding relationship.

The Crown and the F irst Nations

To achieve a better understandingof the origin, evolution and current state of the trust
relationship, the Committee commissioned a study, The Crown and the First Nations.‘ Trust
Relationships, which traces the history of the trust from colonial days to the present. Indian

119

peoples, non-Indian governments and the courts all have different perspectives about the
trust. Does the existence of a trust imply that Indian people are like children or ‘wards’ of

the state, or does the concept refer to solemn promises between nations that must be
honoured?

The research study described dealings between the Crown and F irst Nations in colonial
times as those of partners or a11ies—political equals acting on the basis of consent and equal-
ity. With consolidation of colonial control, the concept of trusteeship was added to the prin-
eiple of consent. In the Royal Proclamation, the notion of “protection of Indian nations”
appears:

The Royal Proclamation recognizes the existence of a special relationship between the
Indian Nations and the Crown. It is an alliance or a relationship of interdependence, not
one of dependence. Yet, the partners do not stand on an equal footing. Great Britain,
though recognizing the various Indian Tribes as allies, also assumes certain responsibili-
ties. She affirms that the lndians living in parts of her Dominions and Territories are
under her protection. She confirms that this is “just and reasonable.” She establishes a
relationship somewhat akin to a suzerainty, a relationship of a nation, living within the
boundaries and under the protection of a larger nation. Though recognizing the Indian
Tribes as nations, the Proclamation also contains elements which describe a trust relation-
ship. . . .

The essence of the policy behind the Proclamation, as indicated, is two-fold. On the one
hand it centralizes authority over Indian Affairs with the Crown in Right of England.
Second, it formalizes the Crown’s intent to strengthen its alliances with the various Indian
Nations. In so doing, the Proclamation denies the right of the Colonies to issue land grants
outside their boundaries, and establishes the approximate boundaries of Indian country.

. . .it outlines certain policy guidelines which subsequently become the basic principles of
Indian-Crown relations. In so doing, the Proclamation recognizes aboriginal rights, and
the duty to protect such rights. The rights are recognized in order to secure an alliance
with the various Indian Nations. The duties of the Crown are admitted because these
nations live under the protection of the Crown. In identifying this special relationship, the
Proclamation uses trust language, reserving vast tracts of land for the use and benefit of
the lndians. (Trust Study, pp. 87,92)

The report went on to describe the progression of the special relationship in the follow-
ing terms: t

The Crown assumed a special responsibility for the protection and management of Indian
proprietary interests;

Control over the administration and aliénation of Indian lands and Indian property rested
with the Crown;

Indian property in the hands of the Crown was held for the use or benefit of Indians; and

The Crown in exercising control over Indian property was a guardian or trustee of the
Indian interest. (Trust Study, p. 172)

As colonial governments within Canada grew strong, they began to extend jurisdiction
unilaterally and take Indian lands, often without consent. This is reflected in legislation and
judicial decisions beginning in 1850 and continuing well into the twentieth century. In this
period the federal government’s failure to honour trust obligations undermined the position
of lndians in Canada. Instead of protecting Indian property from the encroachment of oth-

120

ers, and despite legal procedures designed for this purpose, thé government permitted a
steady érosion of thé Indian Nations’ land basé. Bands did not receive a proper return when
their land was sold; on occasion, they réceived nothing. Instead of preserving hunting and
fishing rights, the federal govérnmént permitted these rights to be limited by législation and
allowed or encouraged development of lands in ways that made it impossible for Indian
péoplé to pursue their traditional ways of living. lndians weré not compensated for thé résult-
ing loss of livelihood. Many tragic examples of thé fédéral government’s failure to protect
Indian interests weré cited before thé Committee.

Although Canada has now entered an era of re-evaluation, in which thé worst abuses of
thé past have come to bé rejected, both Indian peoples and non-lndians continué to live with
a “1egacy of bétrayal and bitternéss”, to quote one of thé witnesses before thé Committee.
(Sub 10:30) Thé people of many First Nations livé in poverty, their land and resource basé
eroded. Thé trust accounts weré intended to provide part of the economic basé for Indian
First Nations. Today, most are sadly inadéquate for that purpose.

The legal aspects of the situation remain ambiguous at best. Récent attempts by Indian
people to obtain redress in the courts have failed, though thé légal questions are not fully
settled. Recently, thé fédéral govérnmént argued that it would not compensate the Mus-
queam Band for losses arising from the rental of band land at wéll below market value. The
govérnmént asserted that it had no légal duty——it was subject only to a “higher”, but unen-
forceablé, “political trust”.

For all these reasons, the Committee has called throughout this report for a new
approach to thé special relationship. The Committee has proposed that theré be an affirma-
tion of thé federal government’s support for First Nations’ authority over their lands and of
their right to survive and develop within thé Canadian fédération. A renewed relationship
could bé possible, given recognition of self-govérnmént and guarantees of assured funding.
The fédéral government’s primary responsibility would bé to promote self-government in a
manner that respects thé rights and interests of Indian First Nations.

Old, distorted, paternalistic notions about the ‘protection’ of Indian people and nations
must be discarded. Thé éléments of thé new relationship would bé as follows:

0 recognition of Indian First Nation governments, with powers and jurisdiction appro-
priate to a distinct order of govérnmént within thé Canadian federation;

0 fiscal arrangements suited to self-governing entities;

0 a sécuré economic basé, including land, water and resource rights, which, together
with educational and community services appropriate to modern society, would
strengthen thé culture and economy of First Nations;

0 équitable settlement of claims to restore capital trust accounts, resources and lands
to thé First Nations; and ‘

0 legally énforcéablé agreements between thé fédéral govérnmént and First Nations to
implement thé new arrangements.

‘Iogethér, these éléments constitute thé Committee’s central proposal——a proposal by which
thc fédéral government could “brightén the covenant chain”, a phrasé the Haudenosaunee

121

A -ïï‘î.-‘îiff—“.—”ztî‘-‘*“‘îf’a-s
j. – ‘mât-zig.

uséd as a symbol of the process of rénewing government-to-government relationships. (Spe-
cial 3lA:7-8)

49. The Committee asserts that the special relationship between the federal government
and Indian First Nations must be renewed and enhanced by recognizing the right of First
Nations to self-government and providing the resources to make this goal realizable. This
will require that the duties and responsibilities of the federal government to Indian First
Nations be defined in thé Constitution and in législation and that they be legally enforce-
able.

An analogy can bé drawn with thé situation of trusteeship under international law. Thé
Canadian Indian Lawyers’ Association cited thé United Nations Charter on Non Self-Gov-
erning and Trust Territories, Chaptér XI, Article 73, which reads as follows:

Mémbérs of thé U.N. which have or assumé responsibilities for thé administration of terri-
tories whose péoplés have not yet attainéd a full measure of self-govérnmént recognize thé
prineiple that the interests of thé inhabitants of thésé territories aré paramount and accept,
as a sacred trust, thé obligation to promote to thé utmost. . . the well-being of thé inhabi-
tants of thésé territories and to this end; (a) to ensure, with due respect for thé culture of
thé people concerned, political, social and educational advancémént, just treatment and
protection against abusé; and (b) to develop self-govérnmént, to take dué account of thé
political aspirations of thé people and to assist them in thé progressive development of
their fréé political institutions according to thé particular circumstances of each territory,
its péoplés and their various stages of advancémént.

Although thé First Nations have a political relationship with Canada différent from that of
thé U.N. trust territories, the fédéral govérnmént has thé same obligations as those listéd
above.

Advocacy of Interests and Protection of Rights

Witnéssés before thé Committee called for thé fédéral govérnmént to take a new view of
its rolé in relation to Indian First Nation rights. It has a responsibility, based on section
91 (24) of thé Constitution Act, I867, to further thé interests of Indian First Nations:

It is incumbént on thé fédéral govérnmént that, éven when it is contrary to other aspects of
its interests to do so, it should uphold thé interests of its wards. In this casé, thé préserva-
tion of our aboriginal rights, thé promises of treaty, thé dictatés of a colonial policy. ..
have paramountcy over other fédéral govérnmént obligations and duties. (McLéod Lake
Band, Spécial 20:44)

While réjécting thé view that Indian nations or péoplés aré ‘wards’, thé Committee
agréés that thé fédéral govérnmént has an obligation to act in thé best interests of First
Nations, as those interests aré perceived by lndians themselves. Aboriginal and treaty rights
aré constitutionally entrenched and must bé protected. When disputés arise, such as prosécu-
tions under provincial laws governing hunting or fishing, or requests aré réceived for help for
a First Nation whose treaty lands aré being floodéd or uséd in other ways incompatible with
Indian rights, thé fédéral responsibility should be two-fold. Thé fédéral govérnmént should
first ensure that Indian people aré able to présent their own arguments in déféncé of their
interests. This subject is addressed latér in this chapter. Sécondly, thé fédéral govérnmént
should bé prepared to intérvéné on thé side of Indian interests against compéting claims,

122

when called upon to do so. Advocacy of lndian rights and interests rests primarily with thé
First Nations, but fédéral support should bé available to reinforce thé lndian view.

Idéally, thé Minister of Staté for Indian First Nations Relations would bé the person
responsible for thé quality of thé relationship between thé First Nations and other orders of

agreements, to make efforts to promote thé well-being of thé First Nations, and to défend
their interests against encroachment by other governments or interests.

Despite thésé efforts, some situations will probably lead to conflicts betwéén thé inter-
ests of thé First Nations and fédéral government policies on other matters. Even in this
instance, where thé actions of another arm of thé fédéral govérnmént diverge from thé rights
of First Nations, theré should bé continuing support for Indian First Nations. The Minister

compéting interests. In thé case of Pyramid Lake Paiute Tribe v. Morton, the United States
District Court considéréd the actions of the Secretary of the Interior in relation to thé alloca-
tion of scarce water betwéén an irrigation schémé and a désert laké owned by thé Pyramid

50. The Committee recommends that the responsibilities of the Minister of State for
Indian First Nations Relations include the duty to promote the interests of F irst Nations.
Where there are compéting interests, it should be the specific duty of the Minister to pro-
tect the rights of Indian F irst Nations against encroachment by other governments or inter-
ests.

In view of thé history of relations betwéén thé fédéral government and Indian First
Nations, a monitoring agency may also bé needed. This office or commission should bé sépa-
rate from the Ministry of Staté and independent of all govérnmént departments. Its rolé
would bé to ensure that thé fédéral govérnmént was carrying out its responsibilities toward
Indian First Nations. The commissionér should report to Parliament.

Thé législative ombudsman is one who is accountable to thé legislature, appointed on a
non-partisan basis for a definite, long term, rémovablé only by thé législature and whose

123

……………. ..

jurisdiction éxténds to all administrative authorities, and to thé highest officials operating
under thé jurisdiction of législation duly énactéd.*

An ombudsman generally has no enforcement powers:

…The classic ombudsman is (1) legally established, (2) functionally autonomous, (3)
external to thé administration, (4) opérationally independent of both thé législature and
the exécutive, (5) spécialist, (6) expert, (7) non-partisan, (8) normativély univérsalistic,
(9) cliént-eéntéréd but not anti-administration, and (10) both popularly accessible and vis-
ible. Thé institution’s mission is to generate complaints against govérnmént administra-
tion, to usé its extensive powers of investigation in pérforming a post-décision administra-
tive audit, to form judgménts that criticizé or vindicaté administrators and to report
publicly its findings and recommendations but not to changé administrative décisions.
Indeed, one of thé institution’s most intérésting puzzles is its apparent effectiveness despite
minimal coercivé eapabilitiés.**

If enforcement or thé power to take légal action weré added to thésé functions as some
witnesses suggested, a différent model might bé needed. Thé structuré of the commission, thé
manner in which it would monitor thé spécial relationship, and its powers to deal with prob-
lems arising from governmental actions should bé developed through discussions betwéén thé
fédéral govérnmént and représentatives of Indian First Nations.

51. The Committee supports the prineiple of establishing an independent officer to
monitor and report to Parliament on official actions affecting Indian F irst Nations. Thé
structure and powers of this office should bé decided through negotiations between the fed-
eral government and designated representatives of Indian F irst Nations.

Many witnesses called for thé création of an agency to promote and protect Indian F irst
Nation rights. They drew attention to thé concept mentioned in thé Déclaration of First
Nations, a Treaty and Aboriginal Rights Protection Office:

Wé support thé establishment of a Treaty and Aboriginal Rights Protection Office to
ensure that Canada’s responsibility to lndians is paramount in asséssing any activities
undertaken or approved by other levels of govérnmént in Canada.

Parliament must take steps to ensure that Canada’s responsibility to lndians takes précé-
déncé ovér any other activity of Canada or thé provinces, and thé Treaty and Aboriginal
Rights Protection Office must bé empowered to séé that thésé responsibilités aré met.
(Dakota Nations, Spécial l2:121)

Thé Spécial Committee of thé Northwest Territories Législative Assembly on Constitu-
tional Development récommended that “a mechanism to protect aboriginal rights bé estab-
lished and included in thé institutions of govérnmént, once aboriginal rights settlements aré
concluded.” (Spécial 28:13) Thé Honourable George Bradén, leader of thé éléctéd exécutive
govérnmént of the Northwest Territories, told the Committee that a protection office is espé-
cially relevant in light of thé identification and définition of aboriginal rights in thé ongoing
constitutional process and that this was an area requiring further study. (Special 28:18)

* Donald C. Rowat, The Ombudsman Plan: Essays on the Worldwide Spread of an Idea (Toronto: McClelland
and Stéwart Ltd., 1973), p. 25.

**Larry B. Hill, The Mode! Ombudsman.‘ Institutionalizing New Zealand’s Democratic Experiment (Princéton,
N.J.: Princéton University Press, 1976), p. 12.

124

The Federation of Saskatehewan lndian Nations noted:

In the past, most of the intended Iegislative and administrative protections for Indian
nations have proven impotent in ‘their treatment of land claims, entitlements, resource
development and redress, property and territorial jurisdiction, treaty enforcement and
Crown trusteeship of these rights. Because of these problems, an institution must be estab-
lished to protect Indian rights against further attrition. . . (Special 11:18)

The supporters of the concept had many different views about the functions of such an
office. For some, investigation of complaints concerning violations of Indian First Nation
rights was important. The independent officer recommended earlier in this chapter would
exercise such investigative powers.

Advocacy of Indian First Nations’ rights is an important goal to be promoted. Effective
representation of First Nations’ interests, particularly in aboriginal and treaty rights cases
and other litigation relating to Indian lands and resources, would be significant in ensuring
respect for First Nations’ rights within the Canadian legal system. An organization provid-
ing legal assistance to First Nations would help to develop a new body of legal precedents.
With funding at a level comparable to that available to opposing interests in litigation, it
could help to bring equity to the legal process. The Native American Rights Fund in the
United States is an example of a non-governmental organization fulfilling the function; its
work has contributed significantly to recent legal developments in the United States. An
advocacy office under Indian auspices would enable First Nations to defend their rights and

interests. lt should be independent of the federal government, except for the provision of
funding.

52. The Committee recommends that the federal government make available funds for
an advocacy office to be established under Indian auspices. Funds would be provided to

enable the office to represent Indian F irst Nations’ interests in legal disputes affecting their
rights.

The Trust Accounts

The “Indian moneys” or trust accounts held by the Department of Indian Affairs and
Northern Development for the “use and benefit” of bands are a small but significant manife-
station of the trust relationship. Trust accounts were originally established to provide a con-
tinuing economic base for First Nations. When any part of the lands reserved for a band was
surrendered and sold, or when resources on reserve lands were sold, the proceeds were to be
held in these accounts to finance present and future activities of the band.*

Until recently, these proceeds from the sale of lands were the main source of funds to
each band’s capital account. In the last ten years, as a result of oil and gas royalties flowing
into the capital accounts of a few bands, the overall trust fund balances have climbed
dramatically.

Band trust funds are now held and accounted for by the Department of Indian Affairs
and Northern Development under two headings: capital trust accounts and revenue trust

“ The following discussion is drawn from pp. 12-7l of the Trust Study.

125

21″43 HwlYH-fiY/W

* ‘ ’ — _ ‘ –

accounts. ln addition to band accounts, the Department also holds individual accounts for
minors, unsettled estates, mentally incompetent persons, guardianship cases and missing
heirs. Most minors’ trust funds originate from per capita distributions from the capital
accounts of the bands.

The administration of trust funds is governed by the Indian Act and the Financial
Administration Act. Under Section 69 of the Indian Act, which provides the main guidelines
for distribution of band revenue trust funds, an lndian band can “control, manage and
expend in whole or in part its revenue moneys”; 75 per cent of Indian bands have been
authorized to manage their revenue moneys.

These trust funds constitute a liability of the government of Canada and are held in the
Consolidated Revenue Fund. Essentially, the Department acts as a bank or trust company,
paying interest at a rate based on the average yield of twenty Government of Canada bond
issues. As of March 31, 1980 there was S236 million in the capital accounts and S31 million
in the revenue accounts. Growth in a few accounts has been quite rapid and, by the spring of
1983, the trust fund liability was over S365 million. Statistics on the individual trust
accounts are more difficult to obtain. As of March 31, 1981, there were 1,041 estate
accounts, with a total fund balance of S1,371,136, and 8,917 savings accounts with a total
fund balance of S9,543,958.

The research consultants engaged by the Committee determined that the total for both
capital and revenue accounts was about S366 million as of March 1983. The overwhelming
majority (S326 million) accrued to bands in Alberta. British Columbia bands had close to
S22 million held in trust on their behalf, with the remaining S18 million distributed among
Indian bands in the other eight provinces.  »

Thegreat bulk of band trust funds accrue to the benefit of a very few bands. Four
Alberta bands with a total membership of just over 8,000 people have trust funds that
together total over S260 million, or S32,000 per capita, and constitute over 70 per cent of the
total Indian trust account balances. At the other extreme, 121 bands, with an average popu-
lation of nearly 500 per band, have less than S4,000 each in their trust accounts, or S8 per
capita. The median band is in the S16,000 to S32,000 range; their trust accounts contain an
average of S45 per band member.

In their origin, trust funds were intended to provide an economic base. lt is clear that
trust funds represent a significant financial interest for only a very small portion of the
Indian population. This situation led the Committee’s consultants to conclude that:

The distribution of trust assets, as they now stand, would not be an adequate financial
base for self-government . . . the settlement of claims and the better assessment of opening
balances might well change the ability of different bands to sustain their own budgets.
(Trust Study, p. 62)

The consultants were asked to comment particularly on why the Auditor General had
reported in 1980 that he had been unable to audit the trust funds. They reported as follows:

It is their submission that the basic reason why the Auditor General has been unable to
audit the trust funds goes beyond the lack of records, the high cost of doing such an audit,
and the lack of staff available to do the work. They submit that the fundamental question
at issue is beyond the competence of auditors as such. That question is the determination

126

of the opening balance in each trust account, and an evaluation of the fair market value of
each sale of land or resources leading to a deposit into a capital account. This, they feel, is
a study which is necessarily done by historians and lawyers. (Trust Study, p. 13)

Such a study would be an enormous undertaking. Although the British government
began keeping track of lndian land and trust fund transactions in the early nineteenth cen-
tury, early records are incomplete and difficult to decipher. Methods of accounting have
changed over the years and cannot easily be compared to modern standards and systems.
There have been some studies of the transactions behind the trust accounts:

. . . the history of the Land Management Fund by Pacey. . . provides a century-long his-
torical account behind the opening balances of the present book-keeping. It documents
innumerable frauds and abuses; excessive commissions; disbursements for purposes which
do not appear to relate properly to the purpose of the trust; sales with parties who were
clearly involved in gross conflicts of interest; and every other form of impropriety available
to an irresponsible trustee. The opening balances with which this following study deals are
the amounts left over after this sort of mismanagement. (Trust Study, p. 1 5)

The insignificant amount now in most trust accounts strengthens the Committee’s con-
clusion that high priority should be given to the equitable settlement of any claims. Settle-
ments would be a major contribution to the capital base of Indian First Nations and would
promote self-sufficiency. The following discussion and recommendations, concerning future
management and the role of trustees in relation to capital and revenue accounts, must
accordingly be understood as being without prejudice to the assessment of the balances and
settlement of other claims.

The Department of lndian Affairs and Northern Development has responsibility for
both program delivery and trust fund activity. These two functions give the Department a
dual objective and raise an unresolved question: who is the client‘? Is the Department of
Indian Affairs and Northern Development accountable to Parliament for public funds or
accountable to Indian people as a trust fund manager?

An official from the Auditor General’s office, commenting on the trust funds, noted
that “departmental managers did not have a common interpretation of what the Depart-
ment’s role was” and elaborated as follows:

One of the basic principles of accountability is that the objectives of an organization be
clearly stated. In the case of the Department of Indian Affairs and Northern Develop-
ment, there was a confusion in the mandate of the Department. Specifically, should the
funds be used by the Department to seek economic and social gains for Indian people or
should the Department simply distribute these funds equitably to native people as they
pursue their own objectives? There is a very major difference between these two orienta-
tions, and we believe that has t0 be clarified before you can establish a structure for
accountability. (House of Commons, Standing Committee on Public Accounts 27:10,
March 24, 1981) j

Originally, revenue from capital accounts was used by the Department, as trustee, to
pay for services provided to Indian people. Indian programs now require federal funds, and
for those moneys the Deparment is accountable to Treasury Board and Parliament, accord-
ing to the laws and guidelines set for all government programs.

On the other hand, trust funds must legally be disbursed according to the terms of the
Indian Act, with the Minister acting like a ‘statutory trustee’. The Act states that Indian

127

moneys may only be spent for the benefit of the lndians or bands for whom the funds are
held. For expenditures of capital, a band council resolution is required, although the band as
a whole need not consent. In all cases, however, the Minister (or, more accurately, the Cabi-
net) has the power to exercise discretion in the use of funds. Subject to the terms of the Act
and any relevant treaties or surrenders, he may determine whether a purpose is for the “use
and benefit” of the band.

Administering federally funded programs and managing trust funds are two very differ-
ent roles, requiring different exercises of judgcment. In recent years, the two functions have
become confused, and uncertainty as to the Department’s role and objectives has arisen.

Legal problems may also arise. One specific concern has been per capita distribution to
band members. The departmental Management lmprovement Project (Trust Fund Manage-
ment) noted:

With regard to the expenditure process, current activities concerning the expenditure of
capital moneys are incompatible with the direction of the Indian Act. At this time, that
Act does not permit the management of these funds in any manner by anyone other than
the Crown. In 1981, total capital expenditures were about S200 million, while over S20
million of this was for per capita distributions to band members. Where the latter con-
cerned distributions to minors, which could have amounted to S10 million or more for
1981 alone, the Crown is vulnerable to prosecution for breach of trust, as these moneys
traditionally have been improperly paid to the parents.

The authors concluded that the Department is becoming more and more vulnerable to suc-
cessful legal prosecution by bands and individual lndians on grounds of breach of trust.*

The policy of devolution to bands may also leave the Department open to suit for breach
of its statutory duties. Policies conflict with statutory standards, and the laws themselves——
the Indian Act and the F inancial Administration Act———conflict.

For these reasons-—conflicting standards and the incompatible roles of trustee and pro-
gram administrator-——change is needed. In any event, the Department is ill-equipped to func-
tion as a bank. The researchers thus concluded that the Department’s trust fund manage-
ment role should be separated from its program delivery functions. The Committee is of the
view that the trust fund management role should be phased out as First Nations are recog-
nized as self-governing. Holding the Minister responsible for managing lndian band moneys,
as if lndian people were incapable of doing so themselves, is the antithesis of self-govern-
ment.

The earlier discussion of the origin and purpose of the trust accounts should indicate,
however, that a simple pay-out of moneys to First Nation people or governments would be
inappropriate, at least in the case of the capital accounts. These accounts were accumulated
for the First Nations to provide a financial base for the future, and there are still future gen-
erations to consider.

53. The Committee recommends that the revenue trust funds be transferred from the
Department of Indian Affairs and Northern Development direct to each First Nation for
administration by its government. Capital trust funds, however, should be transferred to a

* DIAND, MIP 2.3 (August 1, 1982), Executive Summary,

128

KV

trust management system designated by the F irst Nation concerned and consistent with the
original purpose of the trust accounts—that is, the use and benefit of the people of the First
Nation. Transfers should be made following recognition of a F irst Nation having a govern-
ment accountable to and supported by its membership.

It would be the responsibility of the First Nation to arrange for and legally establish a
suitable trust administration or investment plan. The trustee could be a trust company, a
trust organization established by a group such as the Assembly of First Nations or other
Indian organization, or an investment firm.

The Minister would then have discharged his obligations as manager of those trust
moneys and would no longer be accountable to Parliament or to the First Nation in respect
of their management. He would be relieved of any future responsibility for the management
of the transferred funds, effective from the date of the transfer. This would not preclude a
F irst Nation making claims against the government on the basis of mismanagement or other
breach of trust up to the time of the transfer. Such matters are a proper subject for settle-
ment through the new claims resolution process recommended by the Committee.

54. The Committee recommends that, once funds are transferred, the Minister of Indian
Affairs be relieved of any future responsibility for their management, but that the transfer
be made without prejudice to.claims regarding the amount of the funds and the way funds
were managed prior to the transfer.

129

, A- Ïflîf‘

CHAPTER 10

CONCLUSION

The Future of the Department

This report is based on a major sounding of the views of the Indian peoples of Canada.
The Committee heard a cross-section of Indian opinion and concern from one end of the
country to the other. Experts were consulted. Legal advice was obtained. The Committee
members drew on their own experience and feelings.

The Committee is strongly convinced that a major change in the orientation of federal
policy must occur. The federal government must establish new relationships that will enable
Indian peoples to break out of the vicious circle of dependency, poverty and despair that now
grips them. There is little benefit to be gained by tinkering with the Indian Act or adjusting
the present policy of devolution.

The Committee has recommended that the federal government recognize Indian First
Nation governments as a distinct order of government within the Canadian federation. It has
proposed fiscal arrangements that would assure these governments of adequate funding to
provide government services, correct infrastructure deficiencies, and undertake economic
development. It has urged the adoption of a new claims settlement policy and a process for
expediting their resolution.

To carry out these new policies, the Committee has proposed a number of new federal
institutions and processes:

0 To manage and co-ordinate the federal government’s relations with Indian First
Nations, there should be a Ministry of State for Indian First Nations Relations. The
Minister should have the duty to promote the interests of Indian First Nations.

133

0 Within the federal government, the Ministry of State should also be responsible for
funding First Nation governments for services they would provide, for economic
development, and for correcting deficiencies in community infrastructure.

0 A new agency should be set up to carry out the proposed new claims settlement
policy. .

0 A panel, jointly appointed by the federal government and designated representatives
of Indian First Nations, should be formed to consider requests for recognition of
Indian First Nation governments. Recognition would be formally confirmed by the
Governor General.

0 Responsibility for the trust funds should pass from the Minister of Indian Affairs to
Indian First Nations. Capital funds could be managed by Indian financial institu-
tions or private trust companies.

0 A small Secretariat could facilitate negotiations between the federal government and
Indian First Nations.

0 A special commission responsible to Parliament should monitor complaints and
report annually on the state of the relationship between Indian First Nations and the
federal government.

0 The federal government should contribute to the support of an office to assist lndian
First Nations to protect their rights and interests through effective advocacy.

0 A new tribunal should be put in place to adjudicate disputes between lndian First
Nation governments and other governments.

The Committee has also recommended new legislation that would put lndian First
Nations in a position to Control their own affairs through recognized governments. The result
would be the demise of the programs relating to lndian people of the Department of lndian
Affairs and Northern Development. The program delivery functions of the Department and
the extensive monitoring requirements linked to them would disappear as First Nation gov-
ernments exercised responsibility for these services. lndian programs of other departments
would be similarly affected. Residual responsibilities of the Department would be assumed
by the new Ministry of State for lndian First Nations Relations and by the various small,
specialized agencies that the Committee is proposing.

55. As Indian F irst Nation governments exercise control over their own affairs, the
Committee strongly recommends that the programs of the Department of Indian Affairs and
Northern Development relating t0 Indian people be phased out. This process should be com-
pleted within five years. This recommendation does not affect the Department’s mandate for
northern development.

Parliament and the Indian Peoples

The Indian First Nation governments that the Committee has recommended be estab-
lished would relate t0 the federal government on a government-to-government basis. Under

134

such a political structure, a question arises as to how Indian First Nations might relate to
Parliament. A few countries provide for special representation of indigenous peoples or
dependent territories in their national legislatures, so as to ensure that those peoples or terri-
tories have an acknowledged voice in the national debate.

In New Zealand, which has a parliamentary system similar to Canada’s, the Maori peo-
ple elect four representatives to Parliament through direct elections in which only Maoris
may be candidates and only Maoris may vote. For this purpose the country has been divided
arbitrarily into four constituencies. The Maori Members of Parliament participate with full
rights. The system was devised in the 1860s as a temporary measure in anticipation that the
Maori people would be assimilated. Maoris today constitute about 10 per cent of the popula-
tion, and a few Maori representatives are usually elected by the normal electoral process as
well.

The United States has a different system. There is no federal representation for Indian
peoples, but some dependent territories——-Guam and Puerto Rico for instance——each have
the right to a delegate in Congress, although their powers are restricted in that they cannot
vote in the House of Representatives. The District of Columbia is similarly represented in

.the House. In practice, since the congressional committee system is strong, these special

members——who have the right to vote in committee——carry more weight than appearances
would suggest. At the state level, Maine makes provision for the representation of Indian
people in its legislature. i

A few witnesses expressed support for special representation for Indian peoples in the
House of Commons:

We definitely need representation in the House of Commons. . . .They should be elected by
native people across the country. . .so that the rights that. . .we acquire down the road are
guaranteed. We are such a small minority in the Canadian political process today. (Cen-
tral Interior Tribal Councils, Special 18:35)

Most of those who expressed opinions, however, were sceptical of the value of special
representation:

We looked at the model of guaranteed seats which was available to the Maori
people. . . .That model was not successful. . . .Those guaranteed seats were then swallowed
up by the rest of the voting members and they did not have any direct consent over what
was to happen. (Association of Iroquois and Allied Indians, Special 16:28)

The research paper prepared for the Committee on the government of aboriginal peo-
ples (see Appendix F) concluded that the New Zealand model has a number of problems: the
Maoris are under-represented in Parliament; the elected representatives exercise little power;
and the system has weakened traditional Maori governmental structures.

56. The Committee believes that the best way to promote Indian rights is through Indian
self-government and not by special representation for F irst Nations in Parliament. Never-
theless, the situation of Indian peoples will change with self-government, and special
representation in Parliament might in future offer benefits that cannot now be anticipated.

135

Accommodating Diversity

In preparing this report, the Committee has been cognizant of international standards.
Canada is obliged to protect and promote the rights of the peoples of the lndian First
Nations in a manner consistent with the rights guaranteed in the international covenants
Canada has signed——the United Nations Covenant on Economic, Social and Cultural
Rights, the Covenant on Civil and Political Rights, and the Helsinki Final Act of 1975.
These agreements guarantee both the fundamental collective right of peoples to be self-gov-
erning and the basic human rights of individuals.

57. The Committee has concluded that the implementation of this report in its entirety,
legislatively and constitutionally, is the best means of satisfying international standards in
relation to Indian First Nations.

Internationally, there is an increasing awareness that the old approaches to indigenous
peoples have failed. The colonial mentality is being replaced with a recognition of fundamen-
tal human rights. Other countries with indigenous populations, such as Denmark, are seeking
alternatives to assimilation. In a federal state like Canada, which already accommodates so

much linguistic and cultural diversity, finding an alternative to assimilation should not be
difficult.

In the past the prevailing approach to indigenous peoples has been to hold up eventual
self-government as a reward for adapting to the customs of the dominant society. This
assumption must be turned on its head. lndigenous peoples will evolve and prosper only
under self-government.

Canada now has an opportunity to develop creative mechanisms, institutional arrange-
ments and legislation that could give the people of the lndian First Nations a productive
place in Confederation. Moreover, it is in Canada’s best interests to do so. Throughout his-
tory, nation-states that have accommodated diversity have been more stable and have lasted
longer.

The political status of indigenous peoples has already evolved substantially during this
century-——from colonial dependency to a recognition of human and political rights. Canada
can resist this movement or it can offer leadership. The Committee believes that the recom-
mendations in this report would add a new dimension to Confederation and make Canada an
international leader in governmental relations with indigenous peoples.

58. The Committee requests that the government respond to this report in accordance
with Standing Order 69(l3). Because the Special Committee will cease to exist at the end of
the current parliamentary session, the Committee recommends that this response, once
tabled in the House, be automatically referred to the Standing Committee on Indian Affairs
and Northern Development. The referral of the government’s response to the Standing Com-
mittee would allow views to be presented on both the report and the government’s response.
A parliamentary follow-up procedurc would thus be established. –

136

g

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irst
ints
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V75.
gov-

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s in

JUS
en-
ing
so
be

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his

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VC

ed

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:e
rs

I hope that we are psychologically prepared for this challenge.
rather suddenly and tends to shake the basis on which we have a
our relationship with native people. I suppose, in a way,
body who has been standing on the otherfellows toes for s
when he wants to pull his foot out. I hope we can overco

It has come upon us
[ways thought about
we tend to react like some-
o long that we are indignant
me this for his sake and ours.

——Dr. Lloyd Barber, former Commissioner oflndian C laims

CONCLUSIONS AND RECOMMENDATIONS

not appear here in the same order as they appear in the text of the report, but the page num-
ber following each conclusion or recommendation indicates where it can be found in the text.

Throughout the report the Committee has used the term Indian First Nations to describe the
entities that would be exercising sel -government. Although the terms of reference refer to
“Indian self-government”, the majority of witnesses referred to themselves as members of
First Nations. In order to familiarize the general public with the term, the Committee
decided to use Indian First Nations in this report.

Self-Government

lndian self-government. (p. 41)
The Committee recommends that the right of Indian peoples to self-government be explicitly

and fundamental change in the relationship between Indian peoples and the federal govern-
ment is by means of a constitutional amendment. lndian First Nation governments would
f orm a distinct order of government in Canada, with their jurisdiction defined. (p. 44)

tutional amendments, it encourages both the federal government and Indian First Nations to

pursue all processes leading to the implementation of self-government, including the bilateral
process. (p. 46)

141

Legislation

The Committee recommends that any changes of policy possible under existing laws that
would enhance self-government and that are acceptable to designated representatives of
Indian First Nations be taken without waiting for the enactment of new legislation. lt must
be the responsibility of First Nations themselves to select a method of designating repre-
sentatives to negotiate on their behalf. (p. 60)

The Committee does not support amending the lndian Act as a route to self-government.
The antiquated policy basis and structure of the Indian Act make it completely unacceptable
as a blueprint for the future. (p. 47)

The Committee rejects the Department’s band government proposal. Although there have
been years of consultation, there was no general agreement of lndian representatives, and the
proposal finally emerged from a unilateral government decision. (p. 47)

The Committee recommends that the federal government commit itself to constitutional
entrenchmcnt of self-government as soon as possible. In the meantime, as a demonstration of
its eommitment, the federal government should introduce legislation that would lead to the
maximum possible degree of self-government immediately. Such legislation should be devel-
oped jointly. (p. 50)

The Committee recommends that the federal government and designated representatives of
Indian First Nations jointly appoint and fund an independent Secretariat to provide a neutral
forum for conducting negotiations between them. (p. 62)

The Committee is convinced that any legislation that could apply generally must offer a
framework flexible enough to accommodate the full range of governmental arrangements
that are being sought by Indian First Nations. (p. 48)

The Committee recommends three Iegislative measures:

1. The enactment of an lndian First Nations Recognition Act committing the federal
government to recognize Indian governments accountable to their people.

2. Legislation authorizing the federal government to enter into agreements with recog-
nized Indian First Nation governments as to the jurisdiction that each government
wishes to occupy. »

3. Legislation under the authority of Section 9l(24) of the Constitution Act, I867
designed to occupy all areas of competence necessary to permit lndian First Nations
to govern themselves effectively and to ensure that provincial laws would not apply
on Indian lands except by agreement of the Indian First Nation government.

With this legislation in place and supported by appropriate agreements, lndian First Nations
could be self-governing in areas in which they wish to legislate. (p. 59)

The Committee recommends that a Ministry of State for Indian First Nations Relations,
linked to the Privy Council Office, be established to manage and co-ordinate the federal gov-
ernment’s relations with Indian First Nation governments. (p. 61)

142

The Committee recommends that the federal government introduce legislation to implement
the Jay Treaty. (p. 78)

Membership

In the transition from the lndian Act to self-government, the Committee recommends that
the starting point be the band, with its membership newly defined. The federal government
should leave it to each band to decide whether its people would constitute themselves as an
Indian government, or would join with others to form an lndian government of which the
band would be a part. (p. 54)

The Committee asserts as a prineiple that it is the rightful jurisdiction of each Indian First
Nation to determine its membership, according to its own particular criteria. The Committee
recommends that each Indian First Nation adopt, as a necessary first step to forming a gov-
ernment, a procedure that will ensure that all people belonging to that First Nation have the
opportunity of participating in the process of forming a government, without regard to the
restrictions of the Indian Act. (p. 55)

F ederal Responsibility

The Committee recommends that the federal government consider using a general list as a
means of providing special status to people who are lndian for purposes of lndian programs,
but who are not included in the membership of an Indian First Nation. (p. 56)

The Committee asserts that the continuing responsibilities of the federal government toward
Indian people, whether or not they become members of Indian First Nations, must be recog-
nized. The Committee urges federal, provincial and lndian First Nation governments, along

(a) demonstrated support for the new governmental structure by a significant majority
of all the people involved in a way that left no doubt as to their desires;

(b) some system of accountability by the government to the people concerned; and

(c) a membership code, and procedures for decision-making and appeals, in accord-
ance with international covenants.

143

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The contents of the proposed Recognition Act should be developed jointly by the federal gov-
ernment and designated representatives of Indian First Nations. Aside from the development
of acceptable and workable legislation, the federal government should refrain from becoming
directly involved in community decisions about self-government. (p. 57)

The Committee recommends that one-time funding be made available to Indian bands to
assist them in developing their governments. The terms of such grants should be worked out
by agreement with designated representatives of Indian First Nations. (p. 62)

The Committee suggests that a small panel be appointed jointly by the Minister of State for
Indian First Nations Relations and designated representatives of Indian First Nations to
review requests for recognition and consider whether they meet the agreed criteria. (p. 61)

The Committee recommends that the Governor General affirm and record federal recogni-
tion of Indian First Nation governments that are accountable to their people and for which
significant support has been shown. (p. 61)

North of 60°

The Committee applauds all initiatives to design innovative government structures for the

North embracing all its peoples. The Committee’s recommendations focus primarily on the
geographically dispersed First Nations of southern Canada, but some of the ideas presented
in this report may behelpful to those working toward self-government in the North. (p. 63)

Scope of Powers

The Committee agrees that full Iegislative and policy-making powers on matters affecting
Indian people, and full control over the territory and resources within the boundaries of
Indian lands, should be among the powers of Indian First Nation governments. (p. 64)

The Committee therefore recommends that Indian First Nation governments exercise pow-
ers over a wide range of subject matters. The exact scope of jurisdiction should be decided by
negotiation with designated representatives of Indian First Nations. A First Nation govern-
ment should have authority to legislate in such areas as social and cultural development,
including education and family relations, land and resource use, revenue-raising, economic
and commercial development, and justice and law enforcement, among others. First Nation
governments may also wish to make arrangements with the federal and / or provincial govern-
ments to continue existing programs or services. (p. 64)

The Committee recommends the establishment of a specialized tribunal to decide disputes in
relation to agreements between lndian First Nations and other governments. Its structures,
powers and procedures should be jointly decided by the federal government and designated
representatives of Indian First Nations. (p. 67)

Economic Foundations

A new relationship between Indian First Nations and the federal government should ulti-

mately result in the provision of an adequate land and resource base and the settlement of

144

claims. Prospects for economic development would improve if the land base were expanded,
Claims were settled, and the control of resources on lndian lands were transferred to lndian

lt is essential that lndian First Nations be able to get on with the task of economic develop-
ment without delay. (p. 76)

The Committee considers control of a strong economic base to be essential for the effective
exercise of Indian self-government. In planning for development of the economic base, the
people of an Indian First Nation should be able to set goals, define strategies and then act to
realize their potential. To do this they will require substantial funding. (p. 76)

Fiscal Arrangements

The Committee is entirely convinced that lndian self-government must be supported by new
funding arrangements that would enable Indian First Nation governments to decide how
best to meet their peoples’ needs. (p. 94)

Self-government requires that Indian First Nation governments be free to make policies and
to set their own priorities. To ensure that they exercise such powers responsibly and that the
people in turn are protected against wrongful use of-these powers, these governments must
also be accountable to those people. (p. 95)

The Committee recommends that future federal payments to Indian First Nation govern-
ments be in the form of direct grants. Such payments should be made to all Indian First
Nation governments recognized by the federal government as being accountable to their peo-
plc. (p. 98)

lhc alternative favoured by the Committee would be to fund First Nations government oper-
giliuns through a modified per capita formula. This would ensure equity and greatly facilitate

145

disbursement. lt would be important to elaborate a formula that provides for adjustments,
since the relative needs of communities vary. The Committee is convinced that an acceptable
formula could be worked out between the federal government and lndian First Nations gov-
ernments. In addition, there might be funding for exceptional needs. (p. 100)

The Committee recommends that the global amount of funding for First Nations govern-
ment operations, for economic development, and for the correction of serious infrastructure
deficiencies be determined in negotiations between the federal government and designated
representatives of lndian First Nations. The Committee further recommends that Parlia-
ment be asked every five years to approve the global amount of funding by means of statute.
The structures and mechanisms through which the funds for each of these three categories
would be disbursed should also be settled by negotiation. (p. 101)

Lands and Resources

The Committee is convinced that, in order to ensure that self-government becomes a reality,
each Indian First Nation must have full rights to control its own lands in the manner it sees
fit. This would mean power to decide upon methods of land-holding and land management
on reserves. Such areas should be recognized as lndian lands. (pp. 108-109)

The Committee recommends that the federal government promote the constitutional change
necessary to recognize in law full Indian First Nation rights to the lands, waters and
resources of all areas now classified as reserves or in future considered as lndian lands. ln the
interim, the Committee urges the federal government and designated representatives of
Indian First Nations to agree upon the measures now possibleito achieve these objectives.
(p.109)

The Committee recommends that there be an official Registry of lndian First Nation lands.
It would hold records of land under Indian First Nation control, to be distinguished from
federal and provincial lands. (p. 109)

lndian First Nation control of Indian lands is the first and most obvious move needed to pro-
mote self-government. lndians also call for recognition of certain rights based on treaties or
aboriginal title to traditional hunting and trapping areas. (p. 110)

In the past, external control has meant that Indian people have not shared fully in the finan-
cial benefits of revenues arising from development of such resources as minerals, oil and gas.
These revenues could have a significant effect in the development of a viable economic base,
enabling Indian First Nation governments to become self-sufficient. (p. 110)

The Committee recommends that any reinstatement of members mandated by the federal
government should include a review to determine the additional resources necessary to cover
the needs of reinstated people and to recommend a mechanism to provide them. (p. lll)

The Committee recommends that the federal government give high priority to providing a
land base for those lndian communities now without a reserve. (p. 112)

The Committee recommends that the federal government establish as a priority the fulfil-
ment of land entitlements and settlements of other claims. (p. 112)

146

The Committee recommends that the main way of expanding the land and resource base of
Indian Nation governments be through a just and effective land claims process. (p. 113)

The Resolution of Claims

The Committee is firmly convinced that there must be a new policy to promote the fair and
just resolution of outstanding claims consistent with the protection of aboriginal and treaty
rights in the Constitution. The federal government and designated representatives of Indian
First Nations should undertake negotiations regarding a new claims settlement process to be
set out in legislation._ (p. 115) .

While the details of the new policy and process should be decided through bilateral negotia-
tions, the Committee does wish to set out certain principles that should be included. (p. 115)

lt is imperative that the new process be shielded from political intervention. It should be set
out in legislation so that it cannot be readily changed. Claims should be negotiated between
the government and the claimant with a neutral party to facilitate the settlement. Where a
settlement cannot be reached, there should be access to a quasi-judicial process. For Indian
First Nation governments to participate effectively in claims negotiations, they must have
adequate financial support. Finally, under the new policy, pre-Confederation treaties and
other rights should be recognized, and claims should not be regarded as being superseded by
law. (p. 115)

The Committee recommends that the doctrine of extinguishment be eliminated from the set-
tlement of claims; settlement agreements should be limited to those matters specifically
negotiated. (p. 116)

The Trust Relationship

The Committee asserts that the special relationship between the federal government and
lndian First Nations must be renewed and enhanced by recognizing the right of First
Nations to self-government and providing the resources to make this goal realizable. This
will require that the duties and responsibilities of the federal government to Indian First
Nations be defined in the Constitution and in legislation and that they be legally enforce-
able. (p. 122)

The Committee recommends that the responsibilities of the Minister of State for Indian
First Nations Relations include the duty to promote the interests of First Nations. Where
there are competing interests, it should be the specific duty of the Minister to protect the
rights of Indian First Nations against encroachment by other governments or interests. (p.
123) ‘

The Committee supports the prineiple of establishing an independent officer to monitor and
report to Parliament on official actions affecting Indian First Nations. The structure and
powers of this office should be decided through negotiations between the federal government
and designated representatives of Indian First Nations. (p. 124)

147

The Committee recommends that the federal government make available funds for an
advocacy office to be established under Indian auspices. Funds would be provided to enable

the office to represent Indian First Nations’ interests in legal disputes affecting their rights.
(p. 125)

The Trust Accounts

The Committee recommends that the revenue trust funds be transferred from the Depart-
ment of Indian Affairs and Northern Development direct to each First Nation for adminis-
tration by its government. Capital trust funds, however, should be transferred to a trust man-
agement system designated by the First Nation concerned and consistent with the original
purpose of the trust accounts———that is, the use and benefit of the people of the First Nation.
Transfers should be made following recognition of a First Nation having a government
accountable to and supported by its membership. (p p. 128-129)

The Committee recommends that, once funds are transferred, the Minister of Indian Affairs
be relieved of any future responsibility for their management, but that the transfer be made
without prejudice to claims regarding the amount of the funds and the way funds were
managed prior to the transfer. (p. 129)

Conclusion

As lndian First Nation governments exercise control over their own affairs, the Committee
strongly recommends that the programs of the Department of lndian Affairs and Northern
Development relating to Indian people be phased out. This process should be completed
within five years. This recommendation does not affect the Department’s mandate for north-
ern development. (p. 134)

The Committee believes that the best way to promote lndian rights is through lndian self-
government and not by special representation for First Nations in Parliament. Nevertheless,
the situation of lndian peoples will change with self-government, and special representation
in Parliament might in future offer benefits that cannot now be anticipated. (p. 135)

The Committee has concluded that the implementation of this report in its entirety, legisla-
tively and constitutionally, is the best means of satisfying international standards in relation
to lndian First Nations. (p. 136)

The Committee requests that the government respond to this report in accordance with
Standing Order 69(l3). Because the Special Committee will cease to exist at the end of the
current parliamentary session, the Committee recommends that this response, once tabled in
the House, be automatically referred to the Standing Committee on lndian Affairs and
Northern Development. The referral of the government’s response to the Standing Commit-
tee would allow views to be presented on both the report and the government’s response. A
parliamentary follow-up procedure would thus be established. (p. 136)

148

APPENDIX A

WITNESSES WHO APPEARED BEFORE
THE SUB-COMMITTEE AND THE SPECIAL
COMMITTEE ON INDIAN SELF -GOVERNMENT

ALBERTA

Morley (November 29, 1982)

*Indian Association ofA/berta
Mr. Charles Wood, President
Mr. Sam Bull, Treaty 6 Vice-President, lndian Government Portfolio
Mr. Wallace Manyfingers, Indian Government Advisor
Ms. Sharon Venne, Legal Advisor
Chief John Snow, Wesley Band

* Wesley Band
Elder Peter Mark Wesley

*Stoney Indian Tribe
Chief Bill Ear, Sr., Bearspaw Band
Chief Frank Powderface, Chiniki Band
Chief John Snow, Wesley Band
Councillor John Lefthand, Eden Valley Reserve

*Blackfoot Band
Chief Roy Little Chief
Councillor Doug Bearhat
Councillor Mildred Broad Scalplock
Councillor Russel Wright

(* Asterisk denotes those who appeared before the Sub-committee.)

149

Elder Jack Big Eye
Elder Mathew Melting Tallow
Councillor Percy Yellow Fly

*Sarcee Nation
Chief Clifford Big Plume
Peter Manywounds J r., Consultant
Fred Eagletail, Band Councillor

*Peigan Band
Councillor Wilf McDougall
Chief Nelson Small Legs
Mr. Albert Yellow Horn Sr., Researcher
Councillor Percy Smith

*Blood Tribe
Councillor Annie Cotton
Chief Roy Fox
Councillor Chief Keith Moon
Councillor Wayne Wells

Edmonton (November 30 and December 1, 1982)

*Alberta Native Women’s Association
Mrs. Ruth Gladue,President

*Hobbema Four Bands
Chief Leo Cattleman, Montana Band
Mr. Wilton Littlechild, Legal Counsel

*Tribal Chiefs of Northeastern Alberta
Chief Gordon Gadwa, Chairman, Kehewin Tribe No. 123
Chief Marcel Piche, Cold Lake Tribe No. 149, No. 149A, No. 149B

*Alberta Council of Treaty Women

Mrs. Annie Cotton, Blood Band

Mrs. Helen Gladue, Executive Secretary
Mrs. Veronica Morin, Enoch Band

Mrs. Roslyn Manywounds, Sarcee Band
Mrs. Lucy Cotton, Blood Band

*Indian Association ofAlberta
Mr. Charles Wood, President

*Fort McKay Indian Band
Councillor J im Boucher

*Yellowhead Tribal Council
Mr. Richard Arcand, Executive Director
Chief Howard Mustus
Councillor Thomas Potts

150

*Fort McMurray Band
Mr. George Haineault

*Me’tis Association ofAlberta _
Mr. Clifford Gladue, Chairman of the Constitution Committee

Slave Lake (December 2, 1982)
*Chiefs and Councils of Treaty 8

Mr. Clifford Freeman, Vice-President

Chief Walter Twinn, Chief of Sawridge Band and
President of the Lesser Slave Lake Regional Council

Mr. David Fennel, Legal Counsel

Professor David Jones, Legal Counsel

Chief Harry Chonkolay, Dene Tha Band

Mr. Simon Waquan, Interpreter, Fort Chipewyan Cree Band

Chief Lawrence Courtoreille, Fort Chipewyan Cree Band

Chief William J. Beaver

Councillor Leonard G. Alook

Mr. Adrian Yellowknee, Band Education Authority, Big Stone Cree Band
Chief Bernard Ominayak ,7
Mr. Fred Lennarson, Advisor, Lubicon Band .58

*Indian Association ofAlberta
Mr. Charles Wood, President g
Mr. Sykes Powderface, Parliamentary Liaison i

BRITISH COLUMBIA

Nanoose (February 14, 1983)

F irst Nations ofSouth Island Tribal Council
Elder Abel Joe
Chief Thomas Sampson, Tsartlip Band, Chairperson
Chief Wilson Bob, Nanoose Band
Chief Mark Recalma, Qualicum Band
Chief Dennis Alphonse, Cowichan Band Ë
Mr. Gus Underwood, Economic Development Advisor i’ l
Councillor Philomena Alphonse, Cowichan Indian Education
Mr. Phillip Paul, Saanich Sehool Board Administrator

« Chief Andy Thomas, Esquimalt Band

Nuu-Chah-Nulth Tribal Council
Mr. George Watts, Chairman
Chief Simon Lucas, Heshkwiatt Tribe
Chief Mike Maquinna, Muachat Tribe
Chief Sarah Cootes, Huchakthisat Tribe

151

Chief Hugh Watts, Hupachesaht Tribe
Chief Art Peters, Hoayat Tribe

Chief Dan David, Kayukwat Tribe
Chief Charlie Thompson, Niitiinat Tribe
Bernice Touchie, Yulthuilthat Tribe
Chief Bert Mack, Tukwaat Tribe

Mr. Francis Smith, lihatisat Tribe
Chief Archie Frank, Ahoust Tribe

Kwakiutl Tribal Council
Mr. Basil Ambers, Chairman of the Executive
Chief David J. Hunt, Kwakiutl Band
Mr. Wedlide Speck, Special Assistant
Chief John Smith, Turner Island Band

Vancouver (February 15 and April l1, 1983)

Union ofBritish Columbia Indian Chiefs
Chief Bob Manuel
Chief Gerald Etienne
Chief Saul Terry

M usqueam Indian Band
Chief Ernie Campbell l
Mr. J im Reynolds, Lawyer

Mr. Marvin Storrow, Lawyer
Mr. Andrew Charles, Band Member

S to.’Lo Nation
Chief Clarence Pennier, Scowlitz Band, Representative to the Confederacy of Nations
Chief Mark Point, Skowkale Band, Vice-Chairman of the Executive Committee
Chief Ron John, Chawathil Band, Member of the Executive Committee

Bella Coola District Council
Mr._Archie Pootlass, Chairman
Chief Lawrence Pootlass, Hereditary Chief
Chief Edward Moody, Nuxalk Band

Sechelt Indian Band Council
Chief Calvin Craigan
Mr. Graham Allen, Band Legal Advisor
Mr. Gilbert Joe, Chairman of Indian Local Government Committee
Councillor Stanley Earl Joe
Councillor Benedict Pierre
Mr. Gordon Anderson, Band Financial Advisor
Councillor Anne Quinn

United Native Nations
Mr. Bob Warren, President

152

Squamish Band
Chief Joe Mathias
Mr. Harry Slad, Legal Counsel

lndian Homemakers of British Columbia

Mrs. Rose Charlie, President

Mrs. Helen Jones

Mr. Tom Morris

Mr. John Sparrow

Mrs. Bernice Robson

Mrs. Rose James

Mr. Jack Patrick

The Alliance
Mr. Andrew Charles

Mount Currie Band
Chief Leonard Andrew
‘ Mr. John Williams
Mrs. Mary Louise Williams
Mr. Albert Nelson

West Bank Mobile Park Owners’ Associations
Mr. Leonard Crosby

Prince Rupert (February 16 and 17, 1983)

North Coast Tribal Council
Mr. Johnson Gordon, Senator
Mr. Francis ‘Lewis, President
Mr. Frank Parnell, Manager

Nishga Tribal Council

Mr. James Gosnell, President

Reverend Herbert McMillan, Elder, New Aiytansh

Reverend Percy Tait, Translator, New Aiyansh

Chief Councillor Alvin A. McKay, Lakalsap

Bishop John Hannen

Chief Councillor Rod Robinson, Vice-President, New Aiyansh

Mr. Stuart Leggatt, Legal Counsel

Mr. Bruce E. Cottingham, Advisor

Reverend Hubert Stevens, Vice-President and Chief Councillor of Kincolith

Kitamaat Village Council
Chief Councillor Gerald Amos
Chief Tom Robinson, Deputy and Hereditary Chief
Councillor Reg Smith
Councillor Morris Amos

Kitsumkalum Band
Chief Cliff Bolton

153

Kermode F riendship Society
Ms. Viola Thomas, Executive Director
Ms. Janice Robinson, Board of Director

Gitksan-Carrier Tribal Council
Mr. Neil Sterritt, President
Mr. Ken Muldde, Treasurer

Council of the Haida Nation
Grand Chief Percy Williams
Mr. Ernie Collison, Board Member

Massett Ban_d Council
Councillor Frank Collison
Ms. Andrea Dickson, Band Manager

Skidegate Band Council
Mr. Miles Richardson Jr., Band Manager

Kamloops (April 12 and 13, 1983)

Central Interior Tribal Councils

Chief Mary Leonard, Kamloops Indian Band

Mr. John Jules, Kamloops Indian Band

Chief Ron Ignace, Deadmans Creek Indian Band
Chief Robert Manuel, Shuswap Nation Tribal Council
Mr. Don Moses, Chairman

Chief Gordon Antoine, Coldwater Indian Government
Chief Paul Sam, Kootenay Indian Area Council

Shuswap Nation Tribal Council

Chief Wayne Christian, Spallumcheen Indien Government
Chief Gerald Etienne, Bonaparte Indian Government
Chief Ron Ignace, Skeetchestn Indian Government
Chief Arthur Dick, Alkali Lake lndian Government
Chief Robert Manuel, Neskainlith Indian Government
Chief Mary Leonard, Kamloops lndian Government
Chief Paul Sam, Shuswap lndian Government

Chief Roy Christopher, Canim Lake lndian Government
Mr. Eddy Celesta, North Thompson lndian Government
Mrs. Evelyn Sargeant, Canal Creek Band

. Mr. Robert Simon, Director
Neskainlith Indian Government

Mr. George Manuel, Spokesman

Mrs. Amy August, Elder Member

Chief Robert Manuel

Kamloops Indian Band

Chief Mary Leonard

Councillor Clarence T. Jules

Councillor John T. Jules

154

Westbank Indian Band
Chief Ronald M. Derrickson

British Columbia Native Women’s Society
Mrs. Mildred Gottfriedson, President
Mrs. Muriel Sasakamoose, Executive Director

Pavilion Indian Band
Chief Marvin Bob
Councillor Fred Alec
Councillor Desmond Peters
Councillor Sharon Edwards

Fountain Indian Band
Chief Roger Adolph
Elder Sam Mitchell
Elder Victor Adolph
Elder Louis Williams Bob

United Native Nations—Zone 8
Mrs. Bertha Phelon
Mr. Tom Anaquod

Laichkwiltach State
Mr. George Quocksister, Head of State
Mr. Kwag-Kwag-Wa-La-Glese Cla-Qua-Sum Kwasistala, Emissary
Ms. Candy-Lea Chickite, Secretary

Kamloops Petition Group
Mrs. Mildred Gottfriedson, Kamloops Indian Band Member
Mrs. Fay Jules, Kamloops Indian Band Member
Mr. Ernie Thomas, Kamloops Indian Band Member

Kootenay Indian Area Council
Chief Sophie Pierre, St. Mary’s Band, Co-ordinator

Prince George (April 14, 1983)

Carrier-Sekani Tribal Council

Elder Andrew Louie, Stellaquo Band

Mr. Edward John, Legal Advisor

Mr. Justa Monk, President

Chief Donimic Frederick, Fort George Band
Elder Celena John, Stuart-Trembleur Band
Elder Theresa Frederick, Fort George Band
Mr. Joseph Michell, Managing Director
Chief Ray Izony, Ingenika Band
Councillor Albert Poole, Ingenika Band
Councillor Gordon Pierre, Ingenika Band

155

Mr. Archie Patrick, Executive Director
Elder Leonard Thomas, Bans Manager, Necoslie Band

McLeod Lake Indian Band
Chief Harry Chingy
Councillor Les Chingy
Ms. Deborah Hoggan
Ms. Louise Mandell, Legal Advisor

Fort Babine Band

Chief Garnet Williams, Chairman of the Fort Babine Separation Committee
Councillor John Madam

Mr. Pat Mitchell, Manager, Fort Babine Native Fisheries Project
Councillor Aggie Michell, Chairman of Fort Babine Education Committee
Mr. James Sayre, Legal Advisor

Mrs. Ellen Stanley, Member of Fort Babine Education Committee

Cariboo Tribal Council

Chief Alice Aby, Williams Lake Indian Band, Shuswap Indian Government
Chief Gabriel Rly Christopher, Ganimn Lake Band, Shuswap Indian Government
Chief Denis Patrick, Nazko Band, Southern Carrier Nation _

Chief Doreen Sellars, Soda Creek Band, Shuswap Indian Government

Chief Frank Boucher, Jr., Quesnel Band, Southern Carrier Nation

Chief Evelyn Sargent, Canoe Creek Band, Shuswap Indian Government

Ms. Charlene Billeau, Shuswap Nation

Deni Chiefs of the Chilcotin and the Southern Carrier
Chief Ray Hance
Chief David Quilt
Ms. Louise Mandell, Legal Advisor
Chief Cassidy Sill

Quesnel Community Law Center
Mr. A. Brendan Kennedy

Fort St. John (April 15, 1983)

Kaska Dena Tribal Council
Mr. Peter Stone, Chairman
Mr. George Miller, Vice-Chairman
Mr. Charlie Pete, President, United Native Nations Local 143
City ofFort St. John
Mayor Brian Palmer
Treaty 8 Tribal Council
Mr. Bud Napoleon, President
Councillor Clarence Apsassin, Blueberry Band

Councillor Amy Gauthier, East Moberly Lake Band
Chief George Behn, Fort Nelson Indian Band

156

Ïïi;

Fort Nelson Indian Band
Chief George Behn
Councillor Carol Dickie
Mr. Angus Dickie, Band Member
Mr. Bob Hall, Band Manager

MAN ITOBA

Long Plain (January 18, 1983)

Southeast Resource Development Council
A Chief Jim Bear, Chairman of the SERDC Board of Directors

Dakota Ojibway Tribal Council

Chief Ernie Daniels a

Mr. Rufus Prince, Band Member

Chief Allan Pratt

Mr. Don Graveson, Director, Economic Development
Mr. Gerald Kubb, Superintendant, Education

Manitoba Indian Agricultural Program Inc.
Mr. Edward Anderson, Executive Director
Mr. Bob Green, Program Manager

Association of Tribal Councils of Manitoba
Chief Ernie Daniels
Mr. Alfred Everett

Winnipeg (January 19, 1983)

Manitoba Indian Education Association
Mr. Bill Thomas, Chairman of the Board

Indian Women’s Council of Manitoba
Ms. Maria Flett, President
Ms. Lynda Neckoway, Co-ordinator North Region
Ms. Donna Fontaine, Co-ordinator South Region
Mr. Ken Young, Legal Advisor

Joint-Council of Chiefs and the All- Chiefs’ Budget Committee
of the Assembly ofManitoba Chiefs

Chief Ernie Daniels, Vice-Chief, Prairie Region, Assembly of First Nations
Chief Charlie Constant, Pas Band

Chief Harvey Nepinak, Waterhen Band

Chief Joe Guy Wood, Ste. Theresa Point Band

Chief Jim Bear, Brokenhead Band

Mr. Ovide Mercredi, Legal Counsel

Mr. Joy Kaufman, Policy Consultant

Mr. Murray Sinclair, Legal Counsel

157

Brotherhood of Indian Nations

Mr. Larry Amos, Tribal Administrator

Chief Raymond Swan, Lake Manitoba Band

Chief Edward Anderson, Fairford Band

Chief Louis J. Stevenson, Pequis Band

Mr. Robert Daniels, Co-ordinator, Anichinaabe Child and Family Services
Mr. Carol Hurd, Senior Legal Advisor

Greater Winnipeg Indian Council

Mr. Roy Cantin, Acting Headman

Mr. Conrad Spence, Advisor

Ms. Joyce Spence, Advisor, Winnipeg Indian Child Care Services
Ms. Jean Courchene, President, Urban Indian Womens’ Association
Mr. Melvin Fontaine, Off-Reserve Indian

NEW BRUNSWICK

Fredericton (April 25 and 26, 1983)

New Brunswick Association of Métis and Non-Status lndians
Mr. Gary Gould, President
Mrs. Madeleine Hallett, Board Member
Mrs. Cinthya Gaffney, Board Member

New Brunswick Native Indian Women’s Association
Ms. Alice Horsenell, Councillor
Ms. Barbara Martin, Executive Member to Council
Mrs. Alma Brooks, Executive Member to Council

T obique Women
Ms. Eva Saulis
Mavis Goeres
Ms. Glenna Perley
Ms. Caroline Ennis

Union of New Brunswick Indians

Mr. Graydon Nicholas, President
Chief Harold Sappier, St. Mary’s Band
Mr. Charles Paul, Employment Advisor
Mr. Donald Ward, Buctouche Band
Mr. Charlie Sark, Lennox Island Band

T obique Indian Band
Chief George Francis
Mr. Stewart Paul

Kingsclear Band
Chief Steve Sacobie

158

Pabineau Band
Chief Gilbert Sewell

Eel Ground Indian Band
Chief Roger Augustine

NORTHWEST TERRITORIES

Yellowknife (May 11 and 12, 1983)

Government of the Northwest Territories

The Honourable George Braden, Leader of the Elected Executive,
Minister of Justice and Public Services

The Honourable James J. Wah-Shee, Minister for Aboriginal Rights
and Constitutional Development

Mr. Brian Smith, Legal Counsel, Department of Justice and Public Services

Dene Nation
Mr. George Erasmus, President

MacKenzie Delta Dene Regional Council
Mr. James Ross, Vice-President
Miss Jennifer Mauro, Co-ordinator, Resource Impact Study

Fort Good Hope Community Council
Councillor Edward Grandjambe
Councillor John Shae

I Metis Association of the Northwest Territories
Mr. Bob Stevenson, President
Ms. Anne Crawford, Legal Counsel

NOVA SCOTIA

Sydney (April 27 and 28, 1983)

S h ubenacadie Band
Chief John Knockwood
Elder Noel R. Denny

M illbrook Band
Chief Stanley Johnson

Eskasoni Band
Mr. Albert Marshall
Mr. Wilfred Basque
Mr. Charles Francis

Membertou Band
Mr. Kevin Christmas

159

Native Council ofNova Scotia
Mrs. Viola M. Robinson, President

Union ofScotia lndians
Mr. Noel Doucette, President
Mrs. Elizabeth Paul, Health Liaison Worker

ONTARIO

Kenora (January 17, 1983)

Rainy Lake Regional Tribal Chiefs, Incorporated

Mr. Alex Skead

Chief Willie Wilson

Mr. Peter Kelly

Chief Don Jones

Mr. Rudy Morrisseau, General Manager

Mr. Moses Tom, Big Grassy Band

Mr. Delbert Horton, Rainy River Band

Dryden Tribal Area Bands
Tribal Area Chief Arnold Gardner

Rat Portage Band
Chief George Kakeway
Mrs. Madeline Skead, Band Member
Councillor Doug Skead

Shoal Lake Band No. 39
Chief Robin Greene

Grand Council of Treaty No. 3
Grand Chief John P. Kelly

Thunder Bay (January 20, 1983)

Northern Superior Ojibway Chiefs’ Council
Chief Roy Michano, Heron Bay Indian Band
Chief Timothy Esquega, Gull Bay Indian Band
Mr. Anthony Carfagnini, Counsel
Chief Douglas Sinoway, Whitesand Indian Band

Ontario Native Women’s Association
Ms. Donna Phillips, President
Ms. Marlene Pierre, Director
Ms. Priscilla Simard, Provincial Co-ordinator

Lac des Milles Lacs Indian Band
Chief Harvey Churchill

Assembly of F irst Nations
Grand Chief Peter Kelly, Ontario Vice-President

160

Ontario Métis Association –
Mr. Mike McGuire, Secretary Treasurer

Sudbury (March 24, 1,983)

Anishinabek Nation
Chief Joe Miskokomon, Grand Council Chief

West Bay Band
Mr. Vic Migwans
Mr. Lewis Debassige

Garden River Band
Chief Arnold Solomon

Nipissing Band
Chief Phil Goulais

Cockburn Island
Chief Norma Fox (Wagosh)

Kettle Point (March 28, 1983)

Chippewas of Kettle and Stony Point Reserve
Chief Milton (Bud) George

Saugeen Reserve
Chief James Mason

Chippewas of the Thames Reserve
Chief Ether Deleary

Anishinabek Nation
Chief R.K. (Joe) Miskokomon, Grand Council Chief

Christian Island Reserve

Chief Rod Monague

Chippewas ofSarnia
Chief Ray Rogers

London (March 29, 1983)

Association of Iroquois and Allied lndians
Mr. Gordon Peters, President
Councillor Linda Commandant, Gibson Reserve
Chief Alfred Day, Oneida Reserve

Native Women’s Association of Canada
Ms. Jeanette Corbière Lavell

Lansdowne House (July 5, 1983)

Central Tribal Council
Chief Peter Moonias, Lansdowne House

161

Elder Cameron Moonias, Lansdowne House
Mr. Donat Moonias, Lansdowne House
Chief Tom Shewaybick, Webequie
Councillor Alfred Mekinak, Webequie
Councillor Victoria Atlookan, Fort Hope
Mr. Dennis Cromartie, Interpreter

Kayahna Tribal Council

Mr. Simon Frogg, Community Representative, Long Dog Lake Community and Interpreter
Chief John Bighead, Wunnumin Lake Band

Chief Jeremiah McKay, Kasabonika Lake Band

Chief Simon Brown, Wapekeka Band

Councillor Joseph Sainnawap, Kingfisher Lake Band

Windigo Tribal Council
Mr. Charles Fox, Chairman

Grand Council Treaty No. 9
Grand Chief Frank Beardy
Mr. Fred Plain, Special Advisor to the Grand Chief
Commissioner Dennis Cromartie, Nishnawbe-Aski Commission

Moose Factory (July 6, 1983)

Attawapiskat Band
Chief John B. Nakogee

Fort Albany Band
Chief Alec Metatawabin
Mr. William Sutherland
Mr. Louis Nakogee Sr.

Moose F actory Reserve
Chief Ernest Rickard
Mr. Sinclair Cheechoo, Band Member
Mr. Ed Faries Jr., Councillor

Grand Council Treaty No. 9
Grand Chief Frank Beardy
Mr. Fred Plain, Special Advisor to the Grand Chief

Mocreebec
Mr. Allan Joly, Director Chief
Mr. Fred Wapache, Co-ordinator
Mr. Brian Craik, Co-ordinator for the Grand Council of the Crees of Quebec

Moosonee Metis and Non-Status Indian Association
Mr. Earl Danyluk, President
Mr. Sydney Moore, Vice-President

Native Council of Canada
Mr. Louis (Smokey) Bruyère, President

162

Ottawa

*Department of Indian A ffairs and Northern Development
Mr. R.J. Fournier, Acting Deputy Minister A
Mr. I. Cowie, Acting Assistant Deputy Minister, Corporate Policy

Mr. D.E. Goodleaf, Director General, Program Planning & Policy Co-ordination,
Indian & Inuit Affairs Program

*Assembly of F irst Nations
Dr. David Ahenakew, National Chief
Mr. Ernie Daniels, Prairie Regional Vice-Chief

*Native Women’s Association of Canada
Ms. Jane Gottfriedson, President
Ms. Marian Sheldon, Second Vice-President
Mrs. Agnes Mills, Secretary

*Department of Justice
Mr. Ian Binnie, Associate Deputy Minister
Mr. Fred Caron, Legal Adviser, Indian Affairs Department

*Department of National Health and Welfare Canada, Medical Services Branch

Mr. Jack Sinclair, Assistant Deputy Minister

Mr. Peter Cameron, Director General, Policy Planning and Evaluation

Mr. George Campbell, Director General Operations

Mr. Rob Ritter, Director, Community Based Health Systems

Dr. A. Murdock, Acting Associate Director General (East)

*Department of the Secretary ofState

Mr. Jean-Paul Lefebvre, Assistant Under Secretary of State,
Citizenship and Official Languages

Mr. Jim Lanigan, Acting Director, Native Citizens Directorate

*Native Council of Canada
Mr. William L. Wilson, Vice-President

*Canadian Indian Lawyers’ Association
Mr. William Badcock, Member of the Board of Directors
Miss J udy Sayers, Secretary Treasurer

Conne River Indian Band Council
Chief William Joe
Miss Marilyn John, Councillor
Mr. Jerry Wetzel, Band Administrator

National Indian Business Association

Mr. Noel Starblanket, President
Mr. Irwin Goodleaf, Vice-President

Federation ofSaskatchewan Indian Nations
Chief Sol Sanderson, President
Mr. Felix Musqua, First Vice-Chief

163

Arki, Nahwegahbow and Associates

Mr. David C. Nahwegahbow
Mr. Donald Allen

Mr. Robert Birt

Mr. Gary Phomim

Mr. Michael Posluns

Six Nations Council

Chief Wellington Staats

Mr. Phil Monture, Research Director

Mrs. Dale Davis, Research Assistant

Mr. Norman E. Lickers, Research Consultant
Councillor Peter Smith

Councillor Lewis Staats

Councillor Howard Thomas

Councillor Raymond Hill

Councillor Amos Keye

Councillor William White

Councillor Shirley Farmer

Councillor John Staats

Councillor George Johnson

Miss Charlene Bomberry, Research Secretary

Policy Development Group Limited

Dr. Harold Dyck
Mr. Walter Rudnicki

Thalassa Research Associates

Dr. Dan Gottesman, Partner
Mr. Rob Egan, Partner .
Mr. Harold Wilson, Consultant

Haudenosaunee Confederacy

Mr. Bob Antone

Mr. Venus Walker
Mr. Bruce Elijah

Mr. Loran Thompson
Mr. Mike Myers

Mr. Robert Jamieson

Blood Tribe i

Mr. Wayne Wells, Councillor

Mr. Leslie Healy, Councillor

Mr. Virgil Brave Rock, Councillor
Mr. Narcisse Blood, Technician

University of Lethbridge

Professor Leroy Little Bear

164

Native Women’s Association of Canada
Ms. Jane Gottfriedson, President ,
Mrs. Gail Stacey Moore, Chairperson, Indian Act and Constitution Committee,

Board of Directors

Assembl y of F irst Nations

Mr. David Ahenakew, National Chief

Federation of S askatchewan Indian Nations
Chief Sol Sanderson

Coopers & Lybrand
Mr. Glenn Ross, Partner
Mr. Gary Peall, Manager

Teme-Augama Anishnabai
Chief Garry Potts

Keewatin Tribal Council
Elder Peter Beardy
Chief Adam Dick

Swampy Cree Tribal Council

Chief Charles Constant
Chief Esan Turner

Island Lake Tribal Council
Chief Joe Guy Wood

Manitoba Keewatinowi Okemakanak
Mr. Ovide W. Mercredi, Legal Counsel

QUEBEC

Restigouche (April 25, 1983)

Restigouche Band
Chief Ronald Jacques
Elder. Alphonse Metallic
Mr. Fred Isaac, Aid
Ms. Rita Dagenais, Legal Advisor
Councillor Jerry Wysote

Gaspe’ Band
Chief Léon Jeannotte

Val d’Or (May 24, 1983)

Algonquin Council of Western Quebec
Grand Chief Fred Kistabish
Mr. Louis-Marie Fortin, Consultant

165

Chisasibi (May 25, 1983)

Grand Council of the Crees
Grand Chief Billy Diamond, Chairman, Cree Regional Authority
Executive Chief Philip Awashish, Vice-Chairman, Cree Regional Authority
Mr. Henry Mianscum, Director General, Cree Regional Authority
A Chief Henry Diamond, Rupert House

Mr. Allan Happyjack, Waswanipi

Chief James Bobbish, Chisasibi

Chief Walter Hughboy, Wemindji

Mr. Robert Kanatewat, Great Whale River

Chief Ted Moses, Eastmain

Chief George Wapachee, Nemaska

Mr. Peter Hutchins, Legal Counsel

Mr. Norman Hawkins, Consultant

Cree S chool Board
Grand Chief Billy Diamond, Chairman
Mr. Allan Happyjack, Director General
Mrs. Jane Pachano, Sehool Commissioner, Chisasibi
Mr. Bill Grodinsky, Legal Counsel

Cree Board of Health and Social Services ofJames Bay
Mr. Steven Bearskin, Assistant General Manager
Mr. Bill Grodinsky, Legal Counsel

Pointe Bleue (May 26, 1983)

Attikamek-Montagnais Council

Mr. René Simon, President

Chief Armand Noé Germain, Pointe Bleue Reserve
Mr. Ernest Ottawa, Vice-President

Mr. Raphaël Picard, Resource Person

Mr. Camille Vallant, Resource Person

Huron Village Band
Chief Max “Oné-Onti” Gros-Louis

Montagnais Women’s Association
Mrs. Jo Ann Gill, President, Pointe Bleue Chapter
Mrs. Marthe Gill

Naskapis de Schefferville Band Council

Mr. John Mameamskum, Naskapi Representative for
Cree/Naskapi (of Quebec) Act Negotiations

Mr. Robert A. Pratt, Legal Advisor

Kahnawake (May 27, 1983)

Mohawk Council ofKahnawake
Sub-Chief Tom Porter

166

Chief Joe Norton
1 Mr. Billy Two Rivers
Mrs. Myrtle Bush
Mr. Richard White
Mr. Donald Horne
Mrs. Ida Goodleaf

Kanesatake (Oka) Mohawk Nation
Mr. Gerry Peltier, Chief Advisor
Mr. Peter Hutchins, Legal Advisor

SASKATCHEWAN

Saskatoon (March 1,2 and 3, 1983)

Federation ofSaskatchewan Indian Nations

Mr. Sterling Brass and Mr. Vern Bellegard, Chairmen
Senator John B. Lootoosis

Mr. Gary Waters, Consultant

Chief Sol Sanderson

Mr. Wayne Ahenakew, Treasurer

Ms. Beth Cuthand

Treaty No. 2
Senator Bill Standingready

Treaty No. 4
Senator Henry Langan

Treaty No. 5
Senator Thomas Young
Mr. Stan Wilson, Interpreter

Treaty No. 6
Senator Angus Merasty

Treaty No. 8
Senator Louis Chicken
Ms. Mary Rose Yooya, Interpreter
Pasqua Band
Elder Walter Gordon
Chief Lindsay Cyr

Starblanket Band
Chief Irwin Starr

Whitebear Band
Chief Brian Standingready

Y orkton District Chiefs
Mr. Norman Stevenson, District Representative

167

’ ‘ïî « ‘”7Ÿ »‘Îîfu“‘.=f.v;’ü’

Lac La Hache Band
Chief Joe Tsannie

Peepeekesis Band _
Elder Walter Dieter
Chief Aubrey Goforth
Chief George Poitras

Gordon Band
Senator Hilliard McNabb

James Smith Band
Chief Angus McLean

Saskatehewan Indian Education Commission
Mr. Clive Linklatter, Member

Red Earth Band
Chief Alvin Head
Mr. Ken Hodgins, Resource Person

Prince Albert S tudent Residence
Mr. Howard Bighead, Administrator

Saskatehewan Indian F ederated College
Mr. Dennis Acoose, Director

Saskatehewan Indian Cultural College
Mr. Alex Greyeyes, Director

Saskatehewan Indian-Community College
Mr. Ray Ahenakew, Director

Saskatchewan Services for Off- Reserve Treaty lndians
Ms. Elsie Roberts

Black Lake Band
Chief Ben Toutsait
Ms. Mary Rose Yooya, Interpreter

Fond du Lac Band
Acting Chief Norbert Fern

Saskatoon District Chiefs Convention
Chief Joe Quewezance
Mr. Andy Michael, President

S hellbrook District Chiefs
Senator Lorne Ahenakew

Piapot Band
Chief Roland Crowe

Regina Indian Development Association
Mr. Glen Gordon

168

Saskatehewan Indian Federated College Students Union
Mr. Syd Fidler

Saskatehewan Indian Women’s Association
Mrs. Angeline Roberts, President
Mrs. Dorothy Bird, Secretary
Senator Philomene Gamble
Chief Mary Anne Walker, Okanese Band

Lac La Ronge Band
Senator Angus Merasty

Peter Ballantyne Band
Elder Horace Sewaps

Montreal Lake Band
Chief Roy Bird

Indian Equity Foundation
Mr. Del Anaquod, Director

James Smith Band
Elder George Burns
Elder Joe Turner

Ochapowace Band
Chief Cameron Watson

Economic Action
Mr. Don Pooyak, Director

Saskatchewan Indian Nations Company (sinco)
Mr. James Burns, Director of Operations

Cowessess Band

Chief Henry Delorme

M uscowpetung Band

Chief Eugene Anaquod

Saskatehewan Indian Veteran’s Association
Mr. Ernie Crowe, President

Senator Walter Dieter
Senator Henry Langan

Dakota Nations
Mr. Cyrus Standing, Wahpeton Band
Chief Melvin Isnana, Standing Buffalo Band

Regina (March 4, 1983)

Association of Metis and Non-Status lndians of S askatchewan
Mr. Jim Sinclair, President

Mr. Jim Durocher, Provincial Treasurer
Mr. Rob Millen, Legal Counsel

169

S askatchewan Native Women’s Association
Ms. Georgina Fisher, President
Ms. Myrelene Ranville, Consultant
Ms. Vicky Wilson, Northern Co-ordinator
Ms. Leona Blondeau, Executive Director

S askatchewan Association ofNorthern Local Governments
Mr. Michael J. Blackman, Chairman
Mr. Max Morin, Vice-Chairman
Mr. George Smith, Overseer, Pinehouse Local Community Authority No. 9
Mr. Lawrence Yew, M.L.A., Cumberland Constituency

YUKON

Whitehorse (May 9 and 10, 1983)

Government of Y ukon
Mr. C.W. Pearson, Government Leader

Mr. Gerry Piper, Administrator, Land Claims Secretariat, Department of Economic
Development and Intergovernmental Relations

Mr. Willard Phelps, Yukon Government Negotiator, Yukon Indian Land Claim

N.D.P. Caucus
Mr. Tony Penikett
Mr. Dave Porter

Mayo Indian Band
Chief Robert Hager
Elder Harry McGinty
Ms. Alla Melancon
Mr. Albert Peter
Mr. Richard Moses

Association of Yukon Communities
Mr. André Carrel

Champagne-Aishihik Band
Chief Paul Birckel
Councillor Dorothy Wabisca
Ms. Barbara Hume, Social Worker
Councillor Harold Kane

Council for Yukon lndians

Mr. Willie Joe, Vice-Chairman

Elder Eliagh Smith _

Ms. Marilyn Van Bibber, Director, Department of Health and Social Development
Mr. David Joe, Chief Negotiator

Mr. Mike Smith, Vice-Chairman

Mr. Victor Mitander, Negotiator

170

Y ukon Indian Women’s Association
Ms. Bobbi Smith, Vice-President, Researcher and Information Officer
Ms. Virginia Smarch, Elder, Teslin Indian Band

Mr. Kenny Kane, Director of Northern Native Broadcasting,
Champagne-Aishihik Indian Band

Mrs. Betty Pope, Past Elder Member, Social Assistance Administrator, Carcross Indian Band
Ms. Mary Jane Jim, Training and Employment Co-ordinator, Champagne-Aishihik Band
Mrs. Jean Gleason, Director of Yukon Indian Cultural Education Society, Member

Ms. Marion Sheldon, Secretary, Teslin Indian Band

171

APPENDIX B

OTHER MEMBERS WHO PARTICIPATED

Mr. René Gingras, M.P.
(Liberal, Abitibi)

Mr. Jack Burghardt, M.P.
(Liberal, London West)
Mr. Girve Fretz, M.P.
(P.C., Erie)

Mr. Lorne Greenaway, M.P.
(P.C., Cariboo-Chilcotin)

Mr. John A. MacDougall, M.P.
(P.C., Timiskaming)

Mr. John McDermid, M.P.
(P.C., Brampton-Georgetown)

Mr. Terry Sargeant, M.P.
(N.D.P., Selkirk-Interlake)

Mr. Doug Anguish, M.P.
(N.D.P., The Battlefords-Meadow Lake)

Mr. Derek Blackburn, M.P.
(N.D.P., Brant)

Ms. Marlyn Kane, Liaison Member
Native Women’s Association of Canada

Mr. Clem Chartier, Liaison Member
Native Council of Canada

173

APPENDIX C

INDIAN ORGANIZATIONS AND INSTITUTIONS

Assembly of F irst Nations

In the first half of this century several factors worked against the establishment of
national Indian organizations. They included Indian poverty and adult illiteracy, geographic
dispersal, isolation of lndian communities, linguistic diversity and the absence of a shared
second language, interference by lndian agents or the RCMP, a DIAND requirement that a11

grievances be routed through the local lndian agent and a section in the Indian Act (1927)
prohibiting political organizing.*

At the end of the 1970s, changes in the NIB structure were sought to give chiefs more
direct control over national policies and to create an organization that would strengthen tra-
ditional Indian governments and respect the diversity of each Indian nation, while at the
same time, encouraging mutual support for common goals. In April 1980,

…hundreds of Chiefs, representing the People of the First Nations, gathered in an
Assembly to re-proclaim the right of the First Nations to govern themselves. The

others for mutual support, co-operation and to develop national policies for and by Indian
People.**

* J. Rick Ponting and Roger Gibbons, Out oflrrelevance, 1980, p. 196.
**AFN, Our Land, Our Government, Our Heritage, Our Future, brochure.

175

1A DECLARA TION or THE FIRSTSNA TIONS

We the Original Peoples of thisland know the Creator put us here.

The Creatorgave uslaws that govern all our relationships to livein harmony with
and mankind. p a

The laws of the Creator defined our rights and responsibilities.

The Creator gave spiritual be1iefs,our languages, our culture, and
mother earth which provid.ed us withall our needs.

We have maintained our freedom, our languages, and our traditions fromtirï
immemorial. a n .

p We continue to. exercise the rights and fulfill the responsi b i 1i ties and obligationsgggiven o
us by the,Cr ea tor for the land upon‘ which we were placed. a

. The Crea tor h as given us the right .to govern ourselves and the right to
(.The rights and responsibilities given to us by the Creatorcannot be altered or

by any other Nation.

Assembly ofFirst
Nations Conference
December I980

TRI»?! ‘RIGHTS.PRINCIPLES
i. The aboriginal title, abori i aa1 rig his and treaty rights ont… aboriginal peopiœ. o r ca g 3:aa .
j including: ï a _. . v Je a a a . ‘i j À a , w * ; a

(a) a11 rights recognized Proclamation of October 7th, 1763;

(b) all rights recognized intareaties between the Crown and nations or tribes of
Canada ensuring the Spiritual concept of Treaties; l 1 I

(c) a11 rights acquired by aboriginal peoples in settlements or agreements with the Crown
aboriginal rights and title; a « A

are hereby recognized, confirmed, ratified and sanctioned.

2. “Aboriginal people” means the_ First Nations or Tribes of lndians in, Canada and each
having the right to define its own Citizenship. . .1 i)

3. Those parts of the Royal Proclamation of October 7th, 1763, providing for theïrights of,
Nations or tribes of lndians are legally and politically binding on the Canadian and
Parliament’s. . . a : =

4. No law of Canada or of the Provinces, including the Charter of Rights and Freedoms (in
Constitution of Canada, shall hereafter be construed or aipplied so as to abrogate, abridgeï:o ri: :, i ,,’. a
diminish therights specified in Sections 1 and 3 of this Part. i i

5. The Parliament and Government of Canada shall be committed to the negoti,atio n (the
realization and implementation of the rights specifiedin Sections 1 and 3 of thisPart. p

176

On April 20, 1982, the Chiefs adopted a new structure, developed over the previous two
years by an interim body that included the NIB Executive Council. The new structure, called
The Assembly of First Nations, enables the Chiefs to participate in developing and establish-
ing policy at the national level. The NIB corporate structure was retained for legal purposes,
but the Assembly did not incorporate under Canadian law.

Coalition of F irst Nations

The Coalition of First Nations, representing people from bands in British Columbia,
Alberta, Manitoba, Quebec and the Maritimes, was formed in Winnipeg during a two-day
meeting on March 10-11, 1983 by bands that had withdrawn from the Assembly of First
Nations because they disagreed with its decision to participate in the First Ministers’ Con-
ference of March 15-16, 1983. It maintained that discussions relating to aboriginal and
treaty rights should be between Canada and the First Nations and should not involve the
provinces.

Native Council of Canada

The Native Council of Canada (NCC) was established in 1970 to provide a national
voice for Métis and non-status lndians in Canada. Earlier this year the Métis organizations
of western Canada broke away and formed their own organization, the Métis National
Council.

Native Women’s Association of Canada

Representing status Indian, non-status Indian, Métis and Inuit women, the Native
Women’s Association of Canada (NWAC) is the national organization representing and
speaking on behalf of native women’s organizations in each province and the two territories.

The NWAC lobbies for change on a number of fronts, including the following:

0 elimination of discriminatory provisions in the Indian Act and reinstatement of those
individuals who lost Indian status due to these provisions;

0 provision of an equality rights clause in the aboriginal and treaty rights section of
the Constitution to ensure that aboriginal peoples do not suffer discrimination in the
future;

0 employment and training, cultural, social, and economic development, and health
needs of Native women; and

0 child welfare.

Other First Nations Units

Indian people have also joined together to form units based on treaty areas or geo-
graphic regions. In addition, bands unite to form education, economic development or
zigricultural councils, and national bodies have been formed to support cultural centres.

177

For some Indian people, the tribal council is an historical unit of Indian government
that existed at the time the Europeans arrived in the New World. For others, it is unit
created by Indian governments. In both instances, tribal councils are formed by a group of
bands coming together for common purposes but retaining individual band authority.

Tribal council activities vary from one part of Canada to another. Some councils are
mainly administrative bodies, providing clerical, administrative and technical assistance to
member bands. Other councils are service-oriented, delivering services such as policing, edu-
cation and family services. This is the case in Manitoba, but a council is also seen as playing
a role in the development of self government:

The uniting of bands to form tribal councils is oriented toward attaining the goal of local
government, self-determination and independence, each focusing on slightly different pro-
gram areas to reach these goals.’ These new organizations have an entirely different
emphasis from past Indian organizations. Tribal councils are programmatic, not political.
Working from the prineiple that there is strength in unity, tribal councils act from the
premise that the bands are primary sources of authority; thus tribal councils are given
direction from representatives of their member bands. (Dakota Ojibway Tribal Council,
Special 2:81)

Explained Chief Arnold Gardner of the Dryden Tribal Area Bands,

It is in our best interest if we do things collectively. . . if we combine our moneys together
we can hire the resource people so that we can best utilize the money we do have. (Special
1:60)

In British Columbia, by contrast, tribal councils are viewed as political units providing
support to chiefs and councils in their political activities. These differences, coupled with the
fact that tribal councils have no legal status, create certain anomalies, particularly in the
area of funding. For example, the Department of the Secretary of State provides core fund-
ing to B.C. tribal councils through its program for funding political organizations. DIAND
also funds certain services and programs administered by tribal councils, but as witnesses
told the Committee, funds are inadequate, are considered non-essential by DIAND, and are in
some cases reduced by DIAND in an effort to control council activities. Moreover, the federal
government requires that tribal councils incorporate, making them subject to provincial law.
Witnesses criticizing this requirement insisted that “tribal councils must be legally recog-
nized in Canadian law”. (Special 7:35)

178

APPENDIX D

F EDERAL GOVERN MEN T STRUCTURES
DEALING WITH INDIAN PEOPLE

Departments
Department of lndian Affairs and Northern Development

The principal federal structure affecting Indian people is the Department of Indian
Affairs and Northern Development (DIAND), whose control and influence are apparent in
nearly every aspect of their lives. The Indian Act, which sets forth the duties and respon-
sibilities of the Department, regulates the lives of lndians from registration at birth to the
probate of wills. This all-encompassing legislation covers for example, the holding of prop-
erty, rules about inheritance, the election of band councils, the provision of education, and
exemptions from taxatiomAs a result the Department comes close to a single-agency con-
cept under which all programs and services are delivered by one organization. The compre-
hensive nature of the Department cannot be overstated.

On the reserve, the IIAP (Indian and Inuit Affairs Program) is a ‘total’ institution in that it
has a monopoly on the delivery of services to a captive clientele. Its organization is charac-
terized by specialization, hierarchy, and regimentation, while its clients are uneducated,
unspecialized, and varied. By limiting the choices available to its Native Clients, the IIAP
shapes and standardizes Native behaviour at minimal cost and risk to itself!‘

In addition to the Indian Act, the Department works from a Iegislative mandate of 37
other federal acts and 13 treaties.

 » James S. Frideres, Native People in Canada: Contemporary Conflicts (Scarborough, Ont.: Prentice-Hall,
I983). p. 227. a

179

(4,.

n o rthern specIricaiIy i t r espons ibie to r:

. a

1

As well as providing services, the Department is the principal link between the federal
government and lndian people on legal, treaty and, until recently, constitutional matters; it
sees itself as supporting and assisting Indian efforts to achieve “their cultural, social and eco-
nomic needs and aspirations”. (DIAND 1983-84 Estimates)

Indian and lnuit Affairs is one of four DIAND programs. The Indian Affairs program in
turn is divided into nine sub-programs: Administration, Reserves « and Trust, Education and

(Employment Development, Social Services, Community Infrastructure and Services, and

Band Government. The Office of Native Claims is located in another program (Administra-
tion). It is responsible for reviewing and negotiating the settlement of claims.

On the other hand, the Native Claims Program, one of DIAND’s four major divisions,
funds the research and preparation of claims by native people and pays compensation to
claimants once agreement has been reached.

Department of National Health and Welfare

The current budget for the Indian and Northern Health Services of the Department of
National Health and Welfare (NHw) is S212 million. Over 2500 people are employed by the
Medical Services Branch which operates 400 facilities such as hospitals, cottage hospitals,
nursing stations, health centres and public, health clinics. NHw also funds environmental and
occupational health services, dental care and alcohol and drug abuse programs. Non-insured
health benefits such as dental care, prescription drugs, eyeglasses, medical transportation
and prostheses are also provided.

The cost of furnishing these services to lndians and Inuit was S80 million in 1982-83.
Many of these services are similar to those provided to people who receive provincial social
assistance allowances (for which lndians are not eligible because they live on reserves).
Departmental officials also testified that the Department is spending S20 million for band-

180

administered health services, much of it for “community health representatives”. The
Department is also responsible for the National Native Alcohol and Drug Abuse Program.
In April 1982 the Minister announced that the federal government would spend S154 million
on this program over a 5-year period.

In 1979 the Department issued an Indian Health Policy which emphasized, among
other things, community involvement in health care delivery. Among the efforts to encourage
such involvement was the report of the Advisory Commission on Indian and Inuit Health
Consultation, headed by Mr. Justice Berger. The Department is now studying the transfer of
health services to Indian communities. Cabinet has approved S3.6 million for a two-year
demonstration program to develop ways to carry out this transfer.

Secretary of State

The Department of the Secretary of State is responsible, through the Native Citizens’
Directorate of the Department’s Citizenship and Culture branch, for the “political develop-
ment” of native peoples. In 1982-83 it provided programs costing close to S28.6 million to
status and non-status Indian groups, Métis and Inuit.

Funds are provided for the administrative activities of national, provincial and territo-
rial associations and, for the political activities of some tribal councils. Other programs assist
or support native friendship centres and women’s groups, communications societies and
social or cultural development projects.

Department of Justice

The Department of Justice acts as legal counsel in advising DIAND and other depart-
ments “on the legal interpretation of the Indian Act, the reach of the constitutional authority
of Parliament over native matters and generally any legal questions which arise in the course
of administering the federal government programs and legislation”. (Sub. 5:7) The Minister
of Justice plays a lead role in the constitutional confcrences on aboriginal rights. The
Department also provides funding for programs “for areas where the legal system and the
native communities interact”. Finally, the Department makes funds available to native
organizations and peoples where appropriate——for example, to prepare for and attend Confer-
ences dealing with the legal system.

The largest specific activity is the Native Court Worker Program, costing S2.4 million a
year. Cost-shared with the provinces, this program has court workers familiar with native
communities and problems available in court to assist native people involved with the law. (It
does not operate in Nova Scotia, New Brunswick and Prince Edward Island.) A second pro-
gram encourages native people to enter the legal profession; at present, S133,300 is allotted
for the program.

Ministry of the Solicitor General

The Ministry of the Solicitor General administers the criminal justice system. Three
activities are of relevance to native people. The Royal Canadian Mounted Police operates a
Native Special Constable Program in all provinces and territories except Ontario, Quebec
and New Brunswick. Native people account for ten per cent of the total inmate population in
federal penitentiaries run by the Correctional Service. It is not possible to estimate the

181

amount of money spent to maintain incarcerated native people because the native inmate
population varies greatly from region to region, as do costs. During 1981-82 the Ministry
also provided approximately one million dollars for after-care services for native people
through a number of programs, including Native Liaison Workers, Native Counsellors,
Community Residential Boarding and Community Assessments and Supervision.

Central and Co-ordinating Agencies

While line departments such as DIAND and NHw provide direct services, lndian people
are also greatly affected by the decisions of two co-ordinating agencies, the Ministry of State
for Social Development (MSSD) and the Ministry of State for Regional Economic Develop-
ment (MSERD), and by central agencies such as the Treasury Board and the Federal-Provin-
cial Relations Office. While not dealing directly with Indian people, these agencies deter-
mine both general policy and the broad allocation of financial resources.

Treasury Board

The Treasury Board is Cabinet’s expenditure committee. The federal government allo-
cates and controls expenditures through an ‘envelope system’, which defines the resources
available for each policy sector. The Department of lndian Affairs is part of the Social
Affairs envelope, one of ten envelopes in the current system. The Cabinet Committee on
Social Development, chaired by the Minister of State for Social Development, is responsible
for distributing funds within this envelope to departments and agencies covered in the policy
area.

The President of the Treasury Board maintains an overview of the government’s expen-
diture plans and advises on the appropriate expenditure levels for the government as a whole
and for each envelope. The Treasury Board Secretariat prepares the current expenditure
plan, or Main Estimates, based on the decisions of the cabinet Committees. The Secretariat
also analyses departmental plans and programs, with particular emphasis on efficiency and
effectiveness criteria.

Ministry of State for Social Development

Established in June 1980, MSSD formulates and develops “new and comprehensive poli-
cies in relation to the activities of the Government of Canada that affect the welfare ofthe
individual and social development. . Matters relating to Indian people fall under this man-
date.

Specific proposals by DIAND or other departments and agencies for new programs or
legislation relating to Indian Affairs are reviewed at a number of levels, including a commit-
tee of deputy ministers, the Cabinet Committee on Social Development and occasionally the
full cabinet. The Ministry acts as a Secretariat to the Cabinet Committee on Social Develop-
ment, briefing its minister and preparing assessments of cabinet submissions, examining such
things as the adequacy of interdepartmental consultation and the soundness of financial pro-
posals.

182

MSSD is also involved in land claims; the secretary of MSSD chairs the Deputy Ministers’
Committee on Comprehensive Claims, which advises the Cabinet Sub-committee on Com-
prehensive Claims.

Although the Ministry had a large role in preparing for the First Ministers’ Conference
of March 1983, most of the work for future confcrences will be done by the Office of
Aboriginal Constitutional Affairs.

Ministry of State for Regional Economic Development

MSERD was established in December 1978 and assigned a strong role in integrating and
co-ordinating a11 policies and programs related to industrial and regional development. It
also has an explicit role in the budgetary process; the Minister, as Chairman of the Cabinet
Committee on Economic Development, makes recommendations to Treasury Board on the
allocation of financial, personnel and other resources to programs dealing with economic
development. The Minister of State for Small Business and Tourism is responsible for the
S345 million Native Economic Development Fund. ‘

Federal-Provincial Relations Office and Office ofAborigina1 Constitutional Affairs

Among the responsibilities of the Federal-Provincial Relations Office is co-ordinating
federal participation in First Ministers’ Conferences. Following the Aboriginal Rights Con-
ference in March 1983, the Prime (Minister announced the creation of an Office of Aborigi-
nal Constitutional Affairs. Reporting through the Secretary to the Cabinet for Federal-Pro-
vincial Relations, the Office co-ordinates all activities within the federal government related
to the ongoing constitutional process, as well as bilateral consultations between federal
authorities and representatives of all aboriginal peoples. lts terms of reference include the
following responsibilities:

0 to undertake preparations for future constitutional confcrences of First Ministers on
aboriginal matters, including meetings of ministers and officials;

0 to work closely with the representatives of aboriginal peoples and to ensure that they
are consulted on a continuing basis and participate fully in preparations for constitu-
tional confcrences;

0 to work with provincial and territorial governments in the search for an early resolu-
tion of aboriginal constitutional issues;

0 to co-ordinate the activities of the federal departments and agencies participating in
this ongoing process; and, more generally,

0 to advise the government of Canada on these issues and ensure that the research and
policy development required for their resolution are done expeditiously.

Although funding for the participation of aboriginal groups in First Ministers’ Confer-
cnces comes from the Department of the Secretary of State, this Office i-s involved in nego-
lnting the amount of funding with the organizations.

183

The Office is also involved in the bilateral process put in place through an exchange of
letters between the Prime Minister and the National Chief of the Assembly of First Nations
in December 1982. Bilateral negotiations on constitutional issues are now handled by this
Office, while non-constitutional matters continue to be the responsibility of the Department
of lndian Affairs.

Interdepartmental Committee

Health and Welfare officials told the Committee that cabinet had “directed DIAND to
establish an interdepartmental committee to co-ordinate the various aspects related to the
implementation of Indian self-government”. (Sub 6:10) Further questioning revealed that
this interdepartmental committee, composed of approximately 50 senior officials in DIAND,
MSSD, the Federal-Provincial Relations Office, Treasury Board and the Canada Employ-
ment and Immigration Commission, had held only one meeting as ofNovember 1982. (Sub
6:32)

184

APPENDIX E

HOW THE COMMITTEE
ORGANIZED ITS WORK

The membership of the Special Committee on lndian Self-Government comprised seven
Members of Parliament and representatives from three national aboriginal organizations.
The members from the House of Commons were Keith Penner (Liberal, Cochrane-
Superior), Chairman; Stan Schellenberger (P.C., Wetaskiwin), Vice Chairman; the Hon.
Warren Allmand (Liberal, Notre-Dame-de-Grâce-Lachine East); J. Raymond Chénicr (Lib-
eral, Timmins-Chapleau); Jim Manly (NDP, Cowichan-Malahat-The Islands); Frank
Oberle (P.C., Prince George-Peace River); and Henri Tousignant (Liberal, Témiscamingue).

To ensure that the Members of Parliament were fully aware of the concerns and per-
spectives of Indian people, three national aboriginal organizations were invited to work
closely with the Committee. This practice had been established during the earlier Sub-com-
mittee on Indian Women and the Indian Act and had proved highly successful. The
Assembly of First Nations (AF‘N) was asked to designate a representative to participate fully
in the Committee’s work as an ex officio member with a11 rights except that of voting. In
addition, the Native Council of Canada and the Native Women’s Association of Canada
were invited to designate liaison members.

Roberta Jamieson was designated as the AFN representative. Marlyn Kane and Sandra
Isaac served as liaison members from the Native Women’s Association of Canada while the
Native Council of Canada asked Clem Chartier and, later, Bill Wilson to act as its liaison
members.

Staff

The Committee relied on its staff to plan its extensive schedule of travel and public
hearings and to assist in the preparation of its report. François Prégent, assisted by Eugene
Morawski served as Committee Clerks. They and their staff were responsible for the overall

185

administration of the Committee’s work including travel plans, recording the meetings and
keeping minutes. The committee staff also included researchers from the Library of Parlia-
ment, Katharine Kirkwood Dunkley and Barbara Plant Reynolds. Peter Dobell of the Parlia-
mentary Centre for Foreign Affairs and Foreign Trade served as the policy co-ordinator.
Each national aboriginal organization was entitled to have a person participate at the staff
level: Danny Gaspé, Gail Macdonald and Rarihokwats (Assembly of First Nations); Eliz-
abeth Moore (Native Women’s Association); and Bill Lee (Native Council of Canada). Fol-
lowing a practice established by other parliamentary committees, each political party was
represented by one staff person from the office of a Committee member: Penelope Muller
(office of Keith Penner, M.P.); Iva Vranic’ (office of Stan Schellenberger, M.P.); and Stu
Herbert, Randy Potts and Bett Tsa-Me-Gahl (sharing the position from the office of Jim
Manly, M.P.).

Travel and Hearings

Early in its work the Committee decided that it should travel to all regions of Canada to
conduct hearings and learn at first hand about the concerns of lndian people. There was also
a commitment to hold a number of these meetings on reserves or in Indian-owned premises.
Where those sites presented problems for any witnesses, an off-reserve site was scheduled.
During several meetings, visits were arranged so that Committee members were able to see
conditions on the reserves as well as Indian enterprises.

The following is a list of the meetings held outside Ottawa. Thirty-nine of the sixty pub-
lic hearings were held on the road.

November 29, 1982 Stoney Reserve, Morley, Alberta
Visit to Blackfoot Reserve, Gleichen, Alberta

November 30 Canadian Native Friendship Centre, Edmonton, Alberta
December 1 Canadian Native Friendship Centre, Edmonton, Alberta
December 2 Visit to Big Stone Cree Reserve, Wabasca, Alberta

Slave Lake Native Friendship Centre, Slave Lake, Alberta
January 17, 1983 Ne-chee Friendship Centre, Kenora, Ontario

January 18 Long Plain Reserve, Long Plain, Manitoba

January 19 Indian and Métis Friendship Centre, Winnipeg, Manitoba
January 20 Thunder Bay, Ontario

February 14 Nanoose Reserve, Nanoose, British Columbia

February 15 Vancouver Indian Centre, Vancouver, British Columbia
February 16-17 Prince Rupert, British Columbia

March 1-3 Saskatehewan Indian Nations Company Offices (SINCO),

Saskatoon, Saskatehewan

March 4 Regina, Saskatehewan

March 24 Sudbury, Ontario

March 28 Kettle Point Reserve, Kettle Point, Ontario

March 29 N’amerind Friendship Centre, London, Ontario

April 11 Vancouver, British Columbia

April 12-13 Kamloops Reserve, Kamloops, British Columbia

April 14 Prince George, British Columbia

186

April 15 Fort St. John, British Columbia

April 25 _ Restigouche Reserve, Quebec

April 25 Fredericton, New Brunswick

April 26 St. Mary’s Reserve, Fredericton, New Brunswick
April 27 Eskasoni Reserve, Sydney, Nova Scotia
April 28 Sydney, Nova Scotia

May 9-10 Yukon lndian Centre, Whitehorse, Yukon
May 1 1-12 Yellowknife, Northwest Territories

May 24 Val d’Or, Quebec

May 25 Chisasabi Cree Community, Quebec

May 26 Pointe Bleue Reserve, Pointe Bleue, Quebec
May 27 Kahnawake Reserve, Quebec

July 5 Lansdowne House, Ontario 1

July 6 Moose Reserve, Moose Factory, Ontario

Of the 39 hearings on the road, 14 were held on reserves, 9 in friendship centres, 3 in
lndian offices and 13 in hotels or public halls. ln some cases hotels or halls were used
because friendship centres or Indian-owned premises were too small.

The Committee also travelled to Washingon, D.C., and to several Pueblo reservations in
New Mexico to learn about the experience of Indian people with various aspects of U.S. poli-

cies (see Appendix G). The purpose was toidentify models that might be acceptable in
Canada, as well as what might be unacceptable.

Selection of Witnesses

In its terms of reference the Committee was directed to hear from lndian people about
the nature of their relationship with Canada. The Committee endeavoured to hear as many
oral representations as possible from band councils, tribal councils, other organizations and
individuals. The Committee heard a total of 215 oral presentations involving 567 witnesses.
A complete list of the witnesses can be found in Appendix A.

At the outset, the Committee identified five broad categories of witnesses it wanted to
hear:

1) lndian bands;

2) members at executive levels of the Assembly of First Nations, including regional
vice-chiefs and members of the Confederacy of Nations;

3) representatives of Indian associations, such as provincial and territorial organiza-
tions and tribal councils;

4) other aboriginal organizations, regional or local; and
5) other organizations and individuals.

To ensure a representative cross-section of views, the Committee sought witnesses repre-
senting a variety of political experiences and organizational styles. As well, it wanted to hear

187

from bands of different socio-economic experiences; from different locations——some urban,
some rural and some remote; and of varying populations.

Communications

To ensure that as many Indian bands and organizations as possible were informed about
its activities, the Committee undertook a number of steps:

1) advertisements were placed in daily and selected weekly newspapers and all native
publications throughout Canada to invite written submissions and requests to
appear;

2) a letter from the Chairman was sent to all native organizations and band councils in
November 1982 and in January 1983 advising them of the work of the Committee;

3). a copy of the minutes and proceedings of each meeting was sent to all chiefs; and

4) interviews were given with representatives from native and public news media.

Mindful of the need for public education of the non-lndian community about aboriginal
and treaty rights and about self-government, the Committee hired a public relations firm,
David Humphreys & Associates, to contact the local news media in each area where the
Committee travelled. Interest in the work of the Committee increased, particularly after the
televised First Ministers’ Conference on Aboriginal Rights in March 1983. The hearings
were covered by a total of 123 reporters. There were 59 interviews of Committee members
for radio, 22 for television, and 30 interviews for newspapers.

Advance Work

In order to inform people about its work, the Committee hired Dan Brant of First
Nations Consultants to assist with advance arrangements. He was to visit each area prior to
the public meetings to discuss the Committee’s mandate with scheduled witnesses and to
answer any questions aboutthe arrangements for the public meetings. He prepared_ a pam-
phlet for prospective witnesses that outlined the work of the Committee and contained infor-
mation on the format of a public hearing, how to present a submission, and the members of
the Committee. ln addition, he distributed a list drawn up by the staff to illustrate the type
of questions that might be posed during a meeting. This list was intended to indicate the
Committee’s interests and to assist prospective witnesses in writing submissions and prepar-
ing for hearings.

Research Projects
As the Committee conducted its study, four subjects were identified as important areas
where specialized information was required. lt was decided to commission research projects

from experts in each area. Terms of reference for each study were drawn up by Committee
members and staff. These are included in Appendix F.

188

Many Indian witnesses voiced concerns about the difference between the amount of
money allocated for lndian people and the amount actually reaching them, and about the
excessive conditions and accounting requirements attached to the use of these funds. Glenn
Ross, Gary Peall and Alexandre Moricz of Coopers & Lybrand (Ottawa) undertook a study
of federal expenditures and mechanisms for their transfer to lndians to examine these con-
cerns and to offer suggestions for improving the fiscal transfer.

Almost all the Indian witnesses referred to the special relationship between the govern-
ment of Canada and Indian people. To- explore the nature of this relationship more fully, a
project entitled “The First Nations and the Crown: A Study of TrustRelationships” was
commissioned from a coalition of David Nahwegahbow, Michael Posluns, Douglas Sanders
and Don Allen and Associates. In addition t0 describing various aspects of the trust relation-
ship, this project included an analysis of the financial practices relating to the trust accounts.

To see whether the experience of other countries could offer guidance, a comparative
study of the indigenous peoples’ situation in New Zealand, Australia, Japan, the United
States, Denmark and Norway was prepared by Walter Rudnicki and Harold Dyck of Policy
Development Group.

As it examined the subject of self-government, the Committee realized the need to iden-
tify more fully an essential component of self-government, the economic base. It contracted
with Dan Gottesman, Rob Egan, Harold Wilson and Allyson McKay of Thalassa Research
Associates of Victoria to undertake a study, “The Economic Foundations of Indian Self-gov-
ernment”. Included in this research was an analysis of several successful and unsuccessful
band-operated enterprises.

189

APPENDIX F

RESEARCH PROJECTS COMMISSIONED
BY THE COMMITTEE

1. QUESTIONS RELATING TO THE ECONOMIC
FOUNDATION FOR INDIAN SELF-GOVERNMENT

(Thalassa Research Associates)

. Prepare an overview of the treaties and agreements made between the government of

Canada and the lndians in regard to economic provisions.

. Collate information in the various agreements and treaties and relate this informa-

tion to the Committee’s discussion of Indian self-government. This would include
discussion of modernization of the economic portions of such agreements.

. Take examples of treaties and agreements from both the pre-Confederation and

post-Confederation periods and examine their current effect on lndian socio-eco-
nomic conditions. Government programs to deal with this aspect of the treaties and
agreements should also be taken into account.

. Examine the legal or Iegislative obstacles faced by lndians in attempting to build

viable and secure (long-term) economic bases across the country. Consider the legal
problems faced by both individual band entrepreneurs and band councils. The report
should be cognizant of the increasing desire of Indian bands to act collectively
through tribal associations and other mechanisms.

. Examine six to ten Indian-controlled economic ventures, one half successful and one

half unsuccessful, in order to identify the factors contributing to success or lack of
success. Relate the case studies to the other points investigated in this paper. Con-
sider the base of the venture (renewable or non-renewable), the method of accounta-

191

bility to the band population at the band council and individual level, and the politi-
cal, social and economic effects of the venture on the band community and
individual members.

. Comment on the interaction of bands and tribal associations with 1ocal_ and regional

economies across Canada. Examine conflicts between non-lndian and lndian eco-
nomic interests, both on and off reserve, including a discussion of multiple land use
and conflicts in the use of renewable and non-renewable resources. Suggest alterna-
tive economic models for interaction between bands and tribal associations and local
and regional economies.

. Review the compatibility (or incompatibility) of various economic activities with dif-
ferent Indian cultures (e.g., a critical look at tourism, craft industries, resource
development) and comment on the implications.

2. VARIOUS MODELS FOR RELATIONS BETWEEN
INDIGENOUS PEOPLES AND GOVERNMENTS

(Policy Development Group)

. The purpose of this research project is to examine and assess relationships, institu-
tions and mechanisms developed in other countries with indigenous peoples with cul-
tural and linguistic differences. The aim of this project is to identify models,or ele-
ments of models, that have relevance to the development of lndian government in
Canada and that might be introduced in this country.

. The context should be carefully described, the structure itself and the way it func-
tions clearly set down, its effect on the peoples involved carefully examined, its
potential utility in Canada assessed and the difficulties in introducing the structure
identified. Among countries to be included are New Zealand, Denmark, Norway,
Sweden and the United States and any others the consultants consider relevant.

. Consider also other constitutional models for accommodating minorities in states
that are relevant to the development of Indian government in Canada.

. As a background to this study, and for the purpose of eomparison, examine
Indian/government relations in Canada. How have the original lndian governmental
powers been transferred, abridged, abdicated or otherwise interfered with, illustrat-
ing with a few case studies?

3. TRUST RELATIONSHIPS BETWEEN THE FEDERAL
GOVERNMENT (the Crown)
AND THE INDIAN PEOPLE OF CANADA

(Arki and Nahwegahbow)

. Examine the origins and the nature of the trust relationships between the federal
government (the Crown) and the lndian peoples of Canada, indicating how these

192

relationships have been modified (if at all) by legislation and by judicial decisions or
otherwise. Identify the parties between which the trust relationships lie. Analyse the
trust relationships as they exist today from the legal, economic, political, fiscal,
moral and cultural perspective.

. Identify the source of the trust relationships, including

a) treaties and other agreements between the federal government and Indian peo-
ple, and pre-Confederation proclamations, treaties and other agreements;

b) aboriginal rights;
c) obligations arising out of international law; and
d) other sources.

Comment on the perceptions of each of the parties concerned including the reasons.

. Distinguish alternative ways in which the various trust responsibilities of the federal

government are being exercised with respect to
a) financial dealings in which trusts may be involved;

b) federal dealings with provincial governments on behalf of lndian people and the
First Nations;

c) the delivery of services; and
d) lndianlands.

Comment on how these different relationships have been perceived over the years by
each of the parties concerned, on the legal position they now take and on their com-
patibility when the positions differ. Where the federal government exercises its trust
responsibilities through contracts, examine the arrangements and mechanisms used.

. Identify what funds are being held and in what manner by the Minister of Indian

Affairs and Northern Development in his capacity as trustee. Describe how these
funds originated and are administered, what interest is paid on them and what finan-
cial and other problems have been identified in the past and are evident today. Dif-
ferentiate trust relationships affecting Indian individuals and lndian nations. Why
has the Auditor General been unable t0 audit the trust funds and what could be
done to correct this situation now or in the future?

4. FEDERAL EXPENDITURES AND MECHANISMS FOR THEIR
TRANSFER TO INDIANS

(Coopers & Lybrand)

. For the most recent year for which expenditure figures are available, identify the

total expenditures from moneys voted annually by Parliament that are directly or
indirectly intended for the benefit of lndian people in Canada.

193

a) the moneys expended to be broken down by department and agency;

b) when moneys are not specifically voted for lndians (e.g., DREE grants), make an
estimate of the amount involved; delete, by subtraction, any funds derived from
Indian sources, so as to present a net figure;

c) insofar as possible, estimate the portion of these moneys directly going to the fol-
lowing recipients:

band governments or other band entities
tribal councils

regional or provincial organizations
national organizations

other bodies and recipients of program funds, e.g., friendship centres,
newspapers, training programs, etc.

individuals living on reserves
individuals living off reserves

d) when funds are voted generally for aboriginal people, estimate the proportion of
the moneys-intended for status lndians, non-status lndians, Métis and Inuit.

e) identify where possible whether moneys voted are in the form of statutory pay-
ments, grants, accountable transfers or goods and services and comment on the
reasons for each form of payment including whether they appear in votes 10 and
15; and when possible, indicate when the payments fall under treaty obligations,
aboriginal rights or trust responsibilities;

f) indicate where moneys voted are not subsequently expended and where funds
have been transferred from one allotment to another;

g) indicate where moneys are discretionary or non-discretionary.

. Identify separately, where information is readily available, funds being provided by

provincial governments and authorities. Federal funding provided thriough the two
territorial governments should be identified separately.

. Insofar as possible, identify the proportion of the moneys voted that is directly trans-

ferred t0 Indian people or expended on goods or services for their direct benefit. Pro-
vide information on the amount of funds voted that do not reach Indian people and
identify what happens to those funds. In particular, when funds are administered by
Indian bands and / or their organizations for the delivery of services, assess the extent
to which there is duplication of administrative structures, or whether there has been
no corresponding reduction of person years and dollars in DIAN D.

Comment on the reasons for the results.

194

‘.4 F.’ g‘ _ n

i.
ï.

. To gain information in a specific instance, examine the present situation involving

two or three Indian bands or tribal councils (to be determined following further
inquiries) that have in the last few years assumed responsibility for the delivery of a
number of services previously administered by DIAND. Compare the present situa-
tion with what would exist if the band had not assumed its present responsibilities.
Assess what changes in federal administration costs, if any, have occurred in the
DIAND district and region concerned and in Ottawa as a result of this transfer of
administrative responsibility. Examine the new administrative structures put in
place by the band, compare its costs with the cost of the alternative administrative
structure and make an assessment of relative cost effectiveness.

. Estimate the costs incurred by DIAND and other agencies of the federal government

specifically in securing the information that they deem necessary to account to Par-
liament for funds transferred to Indian bands and/or their organizations. Comment
on the financial burden placed on Indian bands and/or their organizations by the
requirements of accounting.

Suggest alternative and less costly means of accounting for financial transfers.

. Provide annual expenditure totals for DIAND and other departments where appropri-

ate by program for housing, education, economic development, social welfare, social
services and health. lnclude cumulative totals for the last decade, and comment on
spending trends in real terms. Where possible provide comparisons with concrete
results.

. Examine and comment on the 1980 report of the Auditor General on DIAND’s man-

agement policies and performance and the Department’s response to that report. In
particular, the Auditor General pointed to discrepancies between project expendi-
ture listed in the estimates and reported in the public accounts. On a random basis
and using a few selected projects, seek to explain differences between the amounts in
the estimates, the national program operational plan, DIAND’s responsibility centres
and cost elements and the actual expenditures as recorded in the public accounts and
such other financial reports as FINCON.

. Review the various methods by which federal services are now delivered directly by

line departments or agencies and the nature of supervision exercised in these
instances by DIAND. Comment on the possibilities for reducing any duplication of
administration that may exist within the federal bureaucracy through more wide-
spread use of direct delivery of services by line departments and on other conse-
quences which such an approach might have. i

. Consider new approaches to funding the functions of government, including the

provision of services to Indian peoples in Canada, commenting in particular on the
implications of direct transfers of federal funds to lndian governments at the band
or other levels. In doing so, look at Canadian experience with transfers to provincial
governments and Crown corporations. Assess such approaches in terms of adminis-
trative efficiency, accountability to Parliament, and the effect on the development of
Indian government.

195

10. Review the structure and funding of Canadian organizations intended to promote
international development, including government agencies such as CIDA and the
IDRC and non-governmental organizations such as CUSO, to assess their utility as
models in future for making federal funds available to Indian governmental and
non-governmental organizations to promote development in lndian communities and
among lndian peoples in Canada.

196

APPEN DIX G

MEETINGS IN THE UNITED STATES

January 3l to February 4, I983

Washington, D. C.
Institute for the Development of Indian Law
National Tribal Chairmen’s Association
Native American Rights Fund
Bureau of Indian Affairs
Congressional Committees Staff
Indian Health Service
Administration for Native Americans
Indian Law Resource Centre
Council of Energy Resource Tribes
American Indian National Bank

National Congress of American lndians

New Mexico
Eight Northern Indian Pueblos Council
Visits to Tesuque, Taos, Santo Domingo and San Felipe Pueblos

197

APPENDIX H

COMMITTEE STAFF

Committees and Private Legislation Branch

Mr. François Prégent, Clerk

Mr. Eugene Morawski, Clerk

Mrs. Micheline Rondeau-Parent, Clerk
Mr. Pierre de Champlain, Clerk

Mrs. Line St. Jacques, Secretary

Research Branch, Library ofParliament

Mrs. Barbara Reynolds, Research Officer
Mrs. Katharine Dunkley, Research Officer
Mr. Bruce Carson, Research Officer

Parliamentary Centre for Foreign Affairs and Foreign Trade
Mr. Peter Dobell, Policy Co-ordinator

M embers’ Staff

Ms. Penelope Muller, Assistant to the Chairman
Miss Iva Vranié, Assistant to the Vice-Chairman
Mr. Stuart Herbert, Assistant to Mr. Manly

Bett Tsa-Me-Gahl, Assistant to Mr. Manly

Mr. Randy Potts, New Democratic Party Research
Ms. Lynn Belsey, Assistant to Mr. Oberle

199

Assembly of First Nations

Rarihokwats, Researcher and Assistant to Ms. Jamieson

Mr. Danny Gaspé, Researcher
Miss Gail MacDonald, Researcher

Native Women’s Association of Canada

Ms. Elizabeth Moore, Researcher

Native Council of Canada
Mr. Bill Lee, Researcher

Humphreys and Associates

Mr. David Humphreys, Press Attaché
Mr. Peter Lockyer, Press Attaché
Mr. Pierre La Traverse

Mr. Steve Hall

First Nations Consultants Inc.

Mr. Daniel Brant, Advance Person

Editors

Miss Kathryn Randle
Miss Lise Lebeau

Cover Artist
Mr. Leo Yerxa

A copy of the relevant Minutes of Proceedings and Evidence of the Sub-committee on
Indian Self-Government (Issues Nos. I to I7 inclusive) and of the Special Committee on
Indian Self-Government (Issues Nos. I to 39 inclusive and No. 40, which contains the
Second Report) is tabled.

Respectfully submitted,

KEITH PENNER,
Chairman.

200

MINUTES OF PROCEEDINGS

WEDNESDAY, OCTOBER 12, 1983
(109)

The Special Committee on Indian Self-Government met in camera at 3:50 o’clock p.m.,
this day, the Chairman, Mr. Penner, presiding.

Members ofthe Committee present: Messrs. Allmand, Manly, McDermid and Penner.

Ex-officio member present.‘
Jamieson.

From the Assembly of First Nations: Ms. Roberta
Liaison member present:

From the Native Women’s Association of Canada.‘ Ms.
Marlyn Kane.

In attendance: From the Research Branch of the Library of Parliament: M rs. Barbara
Reynolds and Mrs. Katharine Dunkley, Research Officers. From the Parliamentary Centre
for Foreign Affairs and Foreign Trade: Mr. P. C. Dobell, Policy Co-ordinator.

The Committee resumed consideration of its Orders of Reference dated Wednesday,
December 22, 1982 and Monday, September 12, 1983.

The Committee resumed consideration of its draft Report.

On motion of Mr. Manly, it was agreed,

mittee’s Second Report to the House and tha
House.

———That the draft report be adopted as the Com-
t the Chairman be instructed to present it t0 the

At 10:54 o’clock p.m., the Committee adjourned to the call of the Chair.

201

‘Içffgrærlgv: ç-n -—

THURSDAY, OCTOBER 20, 1983
(110)

The Special Committee on lndian Self-Government met in camera at 3:52 o’clock p.m.,
this day, the Chairman, Mr. Penner, presiding.

Members of the Committee present: Messrs. Allmand, Chénier, Manly, Oberle and
Penner.

Ex-officio member present: From the Assembly of First Nations: Ms. Roberta
Jamieson.

In attendance: From the Research Branch ofthe Library of Parliament: Mrs. Barbara
Reynolds and Mrs. Katharine Dunkley, Research Officers.

The Committee resumed consideration of its Orders of Reference dated Wednesday,
December 22, 1982 and Monday, September 12, 1983.

The Committee proceeded to consider its future business.

On motion of Mr. Oberle, it was agreed,——That the contracts for services of the editors,
Miss Kathryn Randle and Miss Lise Lebeau be extended under the same conditions of the
original contracts.

On motion of Mr. Allmand, it was agreed,——That the Committee print 30,000 copies of
the English version and 5,000 copies of the French version of Issue No. 40, which contains
the Committee’s Second Report to the House and that a distinctive cover be attached to all
copies of Issue No. 40.

On motion of Mr. Manly, it was agreed,——That copies of the Committee’s Second
Report be sent to all of the following:

1. All witnesses who have appeared before the Sub-committee and the Special Com-
mittee on Indian Self-Government;

2. All Chiefs and Councils;
3. All Tribal Councils;

4. All names on the lists submitted by the Assembly of First Nations, the Native Coun-
cil of Canada and the Native Women’s Association of Canada.

5. The Premiers of the ten provinces and the leaders of the governments of the N.W.T.
and Yukon.

6. All members of provincial and territorial legislatures.
7. Representatives of the lnuit Tapirisat of Canada.

On motion of Mr. Manly, it was agreed,——That the following four research projects,
which were commissioned by the Committee, be filed asexhibits with the Clerk of the Com-

202

mittee and that they be made available based on the cost of reproduction: (for description of
x F of Committee’s Second Report to the House)

1. Questions relating to the economic foundation for Indian Self-Government (Tha-
lassa Research Associates). Exhibit XX

2. Various models for relations between indigenous peoples and governments (Policy
Development Group). Exhibit YY

3. Trust relationships between the federal government (the Crown) and the Indian peo-
ples of Canada (Arki and Nahwegahbow). Exhibit ZZ

4. Federal expenditures and mechanisms for their transfer to lndians (Coopers &

On motion of Mr. Manly, it was agreed,——That the Chairman, after consultation, be

authorized to approve the final version of the press release relating to the Committee’s
Second Report.

On motion of Mr. Allmand, it was agreed,——That, following the tabling of the Commit-
tee’s Second Report in the House, Mr. David Humphreys, press attaché, arrange and co-

At 6:09 o’clock p.m., the Committee adjourned to the call of the Chair.

François Prégent,
Clerk ofthe Committee.

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