By Michael (Mickey) Posluns, Ph.D.
St. Thomas University in Fredericton, New Brunswick

The purpose of Bill S-16 of the current session of the Canadian Parliament is to set out a formula by which Canada would recognize those first nations that drafted and adopted a constitution that met with certain minimal requirements. S-16 was introduced by Sen. Gerrry St. Germain, a Conservative from British Columbia who has Métis roots in Manitoba.

The Senate Committee on Aboriginal Peoples began to hold hearings on S-16 on May 3. The course of the first day’s hearings served to demonstrate that the Indian Affairs Branch continues to be haunted by the attitudes of colonialism and paternalism that have characterized its operations since Confederation and before.

Sadly, Sen. St. Germain was a few minutes late. The chairman, Sen. Nick G. Sibbeston, used the opportunity of St. Germain’s delay to invite two Indian Affairs witnesses to take the floor while the committee awaited the sponsor’s arrival. In the sponsor’s absence, at the point when might normally be setting the stage for his bill by reviewing the bill’s overall structure in terms of the bill’s purpose, senior officials from Indian Affairs were able to take control of the proceedings and set the stage for viewing this bill as an unconstitutional adventure that would foster division within Confederation and work against the well being of First Nations and other Aboriginal peoples in Canada.

The two government witnesses were Maureen McPhee, and Allan Cracower. McPhee and Cracower followed a classic move of Indian Affairs officials testifying before parliamentary committees: they defined the terms by which the bill would be understood. Even their titles announce that their job is to control the discourse on First Nations self-government. McPhee is the Director General, Self Government Branch, Indian and Northern Affairs Canada. Cracower was billed as Counsel, Indian and Northern Affairs Comprehensive Claims, and Northern Affairs Self-Government and Strategic Direction, Department of Justice Canada.

The idea of two senior officials from Indian Affairs with titles suggesting that they are in a position to define the nature of First Nations self-government ought to be sufficient to set alarms ringing. If self-government meant, within the discourse of First Nations autonomy what it means in any other political discourse the insult embedded in the idea of the Canadian government defining what constitutes First Nations self-government would be obvious even to the novices on a Senate Committee on Aboriginal Peoples. At the end of their testimony, however, they were each unable to furnish the Senators with anything in writing, neither a policy statement nor a legal opinion. The closest thing to anything in writing is whatever the Hansard clerks took down from their oral testimony.

McPhee began her remarks by saying that DIAND “has been an ardent supporter of identifying and developing new approaches that can facilitate and promote self-government.” Historically, DIAND was created for the explicit purpose of displacing the self-governing institutions of First Nations. In recent years, DIAND ministers have spoken in favor of self-government so long as they are the ones who define both the scope of First Nations’ autonomy and the nature and structure of First Nations political institutions. For example, former Minister of Indian Affairs Bob Nault introduced four bills in 2002-3 including a First Nations Governance Act, a First Nations Fiscal Institutions Act and a Specific Claims Act, which would have defined the nature of First Nations institutions, the scope of First Nations taxation powers on leased lands, and establishing a board appointed by the federal minister which would oversee the financial and fiscal policies of all First Nations governments in Canada. It would be an interesting Political Science 101 exercise to compare band powers under the present Indian Act with the powers under Nault’s C-7 with a view to determining whether there was a net gain or a net loss.

To claim that DIAND has been an ardent supporter of self-government flies in the face of the entire history of DIAND and of successive parliamentary and public inquiries have stressed that Indian Affairs. A Special Commons Committee on Indian First Nations Self-Government (Penner) in 1983, a Royal Commission on Aboriginal Peoples in 1996 and a Senate Committee Report in 2000 all concluded that DIAND has historically been so much a part of the problem that it can not now become the government’s key to a solution.

Indian Affairs officials, however, have been eager to reinvent their own department in an effort to contradict the conclusions of every known independent inquiry. Indeed, their determination to dominate proceedings, as exemplified by McPhee’s co-option of the Senate Committee goes to the very heart of the problem.

Describing a government department as “an ardent supporter of identifying and developing new approaches” is curious on a number of grounds. If a government department (or a corporation) were capable of emotions we would still need to ask whether ardor would be one that would head a list.

If federal officials were to genuinely support First Nations self-government, the first evidence of good faith on their part would be an adoption of a no-policy, i.e., DIAND would cease to adopt policies which they believed to be in the interests of First Nations beyond supporting First Nations capacity to make such decisions for themselves.

McPhee said that “the number of self-governing Aboriginal groups continues to grow.” She carefully avoided the term “First Nations” while adopting the view that each bill ratifying a land claim and self-government agreement in recent years has, in fact, constituted a self-governing First Nation. A careful look at the bills ratifying agreements between Canada and such First Nations as the Tlicho or Westbank quickly demonstrates that the capacity of these communities to govern themselves is confined to measures that are consistent with the policies of the province surrounding them as well as with any relevant federal law. In short, the “self-government” granted (not recognized) under these agreements is conditional upon the polices of those First Nations governments conforming to both federal and provincial law.

Having said that S-16 was, in principle, “a part of the solution” (as though Indian Affairs were in a position to say just what the solution might be when they have historically been so much a part of the problem), Ms. McPHee proceeded to challenge the constitutionality of the bill and to suggest that the bill stood to threaten First Nations relations with the provinces.

McPhee went on to say that “although the department agrees with the overall goal of the bill, we believe that First Nations, provincial and territorial governments, as well as the general public should have an opportunity to have meaningful input” into this bill.” No one asked why the departments own recent bills had been rammed through Parliament with indecent haste. Or why First Nations self-government – a concept First Nations leaders and elders say is implicit in the recognition and affirmation of Aboriginal and treaty rights in s. 35 of the Constitution Act, 1982 – should require either provincial approval or the input from the general public. Even those provinces and municipalities which rake in money by admitting students from neighboring First Nations (reserve) communities do not reciprocate that kind of input.

More surprising was McPhee’s contention that First Nations jurisdiction over off-reserve education “is not consistent with the Constitution.” This is not the place to argue the subtleties of the Canadian Constitution. However, in the list of exclusively federal powers is section 91(24) “Indians and lands reserved for the Indians.” The Government has, when it was convenient read these two provisions –(1) Indians and (2) lands reserved -- as though they were one. I think Ms. McPhee would be hard pressed to find a legal scholar not in the pay of the federal government who would agree with her view, or the government’s view of ss. 91(24). Indeed, the federal government has long provided some health benefits to persons living off reserve. And, the current practice in respect to post-secondary education is for the government to give funds to First Nations communities to allocate in support of their members attending universities or colleges, clearly a move to support off-reserve education when it is convenient.

The real crux of DIAND’s concern is that under bill S-16, “a First Nation can designate territory it acquires as Aboriginal lands.” In other words, if a reserve acquires money and then uses the money to buy lands it can declare those lands to be part of their reserved lands and, therefore, not subject to provincial taxation. Most of the lands a First Nation is likely to acquire would be the result of land claims negotiations. In other words, they would be getting back lands that were rightfully theirs all along. Why is the department that supposedly is the lead federal agency in respect to the federal fiduciary duty to First Nations be more concerned about the loss of revenue to provincial treasuries than the reduction of poverty in First Nations communities?

Much was made of the Canada-Aboriginal Roundtable, a phenomenon that I will explore further in another article. What is critical here is that these round tables involve multiple federal departments negotiating concurrently with Inuit, Métis and First Nations leaders. The trouble is that for the most part, especially outside the northern territories (Nunavut, North West Territories and Yukon) it is only First Nations that have treaties with the Crown in right of Canada. While these round tables foster an illusion of federal good will when they occur on television, the First Nations leaders see them as a means for diluting treaty obligations by focusing on federal government priorities. Once again the federal government sets the agenda and decides which policies will be pursued by supposedly self-governing First Nations.

Cracower began by commending “Sen. St. Germain and others for this important initiative,” surely an indication that Mr. Cracower’s view of the Constitution does not have him, as a public servant and a lawyer in the federal Justus Department answering to a parliamentary committee. Cracower then urged that such an important matter “should be realized in a legally sound and practical way.” Civil servants in Canada who view themselves as “the permanent government” see the Parliament of Canada and its committees as needing to be brought into line with what is practical.

Sen. St. Germain, who had just arrived, observed that he wished that he might have received written submissions from the witnesses in advance. By the end of the proceedings it would become clear that they were not about to provide written materials either before or after. Indeed, the sole basis for Cracower’s legal opinions is that (a) his say-so and (b) the convenience of his opinions to the interests and viewpoints of his client, the Minister of Indian Affairs and Northern Development.

St. Germain pointed out that his bill had been drafted by a committee of Aboriginal scholars, teachers, elders and leaders and that “Aboriginal nations themselves have asked us to do this.”

Both we and the Aboriginal people are looking for a way of not spending 10 years in negotiations. … The Aboriginal First Nations that are seeking this type of enabling legislation have an established land base, a fact that the paternalistic attitude of government does not recognize.

He pointed out that he was carrying on a work that had been initiated by the late Sen. Walter Twinn.

I do not believe that there is a quick fix to this problem, but I do believe that there should be some form of legislation in place that would allow those who are in a position to take advantage of the legislation to have a vehicle that will allow them get on with their lives.

St. Germain pointed to hearings on economic development in which Prof. Stephen Cornell from the Harvard Project had observed that genuine self-government had been found to be a consistent prerequisite to economic development. Holding up self-government until communities become self-supporting inhibits economic development, it does not foster it.

St. Germain made the tactical effort of asking Ms McPhee “How do we expedite this without going through a seven-year study followed by a seven year evaluation?” Predictably, she assured the committee, “I do not think we need a seven year study.” Instead, she proposed “expediting self-government at the sectorial negotiation session of the round table process,” something that sounds close to a seven year process from where I am sitting.

Most revealing was her next statement, “That was an opportunity for participation by all Aboriginal groups to discuss.”

The essence of bill S-16 is that each First Nation that succeeds in writing its own constitution, providing that constitution meets certain minimal requirements will be recognized by Canada. The essence of Prime Minister Martin’s Round Table process is, as McPhee observed, to provide a forum in which “all Aboriginal groups” might discuss. Why exactly the Nisga’a on the west coast or the Inuit in the High Arctic should need to agree to a constitution or a land claim for the Mi’kmaq of Nova Scotia is not at all clear, unless, of course, the goal is to delay decisions making for seven years or more as Sen. St. Germain feared.

Sen. Charlie Watt, an Inuit Senator from northern Quebec challenged McPhee’s assertion that the bill is unconstitutional. He reminded her that s.35, the section that “recognizes and affirms the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada” is not a part of the Canadian Charter of Rights and Freedoms. Watt was, however, concerned that S-16 is not “the way to develop harmony between Aboriginals and non-Aboriginals.” He noted that “the system is structured [so as to] create a power struggle between the federal, provincial and territorial governments.” However, he did want to see Aboriginal governments being able to propose laws to which others would be obliged to respond within 60 days or some other limited time.

Cracower latched on to Watt’s concerns and emphasized that, as a lawyer his “focus is, of course, on the law and not on policy.” He then went on to make the case for provincial participation in developing First Nations self-government, but, at the end of his speech he was not able to agree to provide any kind of written material in support of the analysis he had just offered.

This is a line that Justus lawyers have followed for many, many years. If an Indian organization becomes sophisticated enough to offer a legal opinion of their own, or, in certain cases where parliamentary committees have their own legal counsel, the Justice Department will offer a verbal opinion contrary to that of a First Nation or of counsel for a parliamentary committee. What they will not do is to offer a reasoned opinion complete with references.

At the end of the first day’s hearing the chairman, Sen. Nick Sibbeston, tried to have something for everybody. He asked Ms. McPhee if the department might not prepare a comparison of C-7, the department’s bill on First Nations Governance of two sessions previous and S-16.

Why, exactly, he would not have asked for such a comparison from the parliamentary library staff whose job it is to provide support for parliamentary committees remains a mystery.

There was, at the end of the day, no mention of further meetings.

The way in which the Chairman handed the proceedings on S-16, a private senator’s bill over to two government officials took me back to a joint committee studying a land claim petition from the Interior Tribes in 1927. The Minister of Indian Affairs came to the first hearing and asked to speak first. Neither petitioner, Andrew Paull, the leader of the Interior Tribes or his lawyer ever got to speak, or to call their own witnesses or in any way to make their case. The chairman, who was, in fact, the Speaker of the Senate, turned normal procedure on its head, and allowed the minister to make a lengthy statement about all the wonderful work being done by his department for the poor Indians while the Indians who had brought their petition to Parliament were never heard.

The ultimate outcome of that committee was an amendment to the Indian Act, s. 149A, making it an offence to raise funds for the purpose of pressing land claims.

Granted the comparison is very limited: the Chairman of this committee simply wanted to be efficient in the use of time by having witnesses who were present to speak first and others to speak later. Whether the comparison holds beyond that remains to be seen.

One can only hope that the sponsor of S-16, Sen. St. Germain, and any friends he has in the various corners of the Senate, will press for a schedule of hearings from interested First Nations leaders, elders, and teachers as well as from legal scholars and policy studies scholars. One could also hope that interested policy and legal scholars will take an interest in this bill as an alternative to the neocolonial bills put forward by the department in 2002 and 2003.

Michael (Mickey) Posluns, Ph.D. is an associate professor in the Native Studies Programme at St. Thomas University in Fredericton, New Brunswick. He can be reached at: mailto:mposluns@stu.ca.