Column

First Nations Leaders and Harper Ministers Meet: Prospects for a Policy of “No-Policy”

Tuesday January 24, 2012, First Nations chiefs from across Canada met with the Prime Minister and an array of his cabinet ministers. Was there an expectation of material results? The chief of Attawapiskat attended; her deputy chief, when interviewed by the C.B.C. asked rhetorically whether anything would be different “tomorrow” because of the meeting.

It may be better that the meeting happened than not having had the meeting. It lends credibility and legitimacy to the demands of First Nations leaders. But there are a series of fundamental obstacles that will prevent significant change until those obstacles are removed. This column will outline a few of those obstacles.

First, the Department of Indian Affairs and Northern Development (which tries to be cool by adopting INAC as its acronym) is the biggest single obstacle. In 1983, the Report of the Penner Committee on Indian Self Government(Penner) called for the gradual dismantling of DIAND. More specifically, Penner said that the Department could not be an instrument for change (the kind of change that the Supreme Court has taken to calling “reconciliation”). Sadly, when the then Prime Minister, Pierre Trudeau, received the report he sent it over to Indian Affairs for implementation.

Related to the recommendation to wind down the Department was the recommendation to name a Minister for First Nations relations who would sit on the Planning and Priorities Committee of Cabinet (aka “P&P”, also known as “the inner cabinet”). The Minister of Indian Affairs would continue as a junior office with a mandate to continue to administer programs for those First Nations communities who were not prepared to handle particles areas of jurisdiction. I have long thought of this as analogous to the role of the Minister of National Revenue vis-à-vis the Minister of Finance. Unless there is a Minister for First Nations Relations in the inner cabinet the chances that Canada’s relations with First Nations will change for the better is really quite remote.

People who are deeply interested in this issue would do well to dig up a copy of Penner. For several years I taught a course based on the final report. It is about 150 pages and covers much the same ground covered in 5,000 pages of the Report of the Royal Commission on Aboriginal Peoples (Erasmus-Dussault) of 1996. Similar ground has been covered by a succession of reports by the Senate Committee on Aboriginal Peoples beginning with the report of 2000 entitled Forging New Relationships and a much more recent one on the Government’s non-fulfillment of obligations specified in the modern land claims agreements (all of which have been ratified by Parliament) and entitled Negotiation or Confrontation: It’s Canada’s Choice.

Real reconciliation, to use the term favoured by a succession of chief justices, will only become likely when a government takes office that genuinely wants to forge new relationships and when Canada decides that the best way to interpret obligations set out in agreements will follow a line between clear and plain meaning and a purposive interpretation.

Auditors General as far back as 1990 have pointed out that First Nations are required to do far more reporting (the major means of accountability) to the federal government than any local government is required to provide to funding branches of provincial governments. So when ministers (including the prime minister) get up in the House of Commons and demands more accountability they are basically bad mouthing First Nations and misleading the Canadian public.

When ministers mention the amount of money a given First Nation has received over a five or ten year period it sounds very large. This is a slippery, even devious way of shifting responsibility and deprecating First Nations, even if the amount is fairly accurate. I would even say that it is an argument that is perilously close to an argumentum ad ignorantiam (a deprecating assertion for which no evidence is offered, e.g., “When did you stop beating your wife?”) A closer look at the actual amounts of money going to First Nations communities for particular programs such as health or education will show that First Nations receive much less for these services than non-Aboriginal communities receive from their funders.

Neither can these programs be legitimately called self-government. The funds are granted on the basis of contracts which have the following features: (1) the amount granted to any particular First Nation community is significantly less than what DIAND spent when it administered the same program; and, (2) the First Nation entity is required to commit to following provincial guidelines and provincial standards.

The kind of self-government described in both Penner and its successors is something which DIAND has long opposed and most Canadians, including most parliamentarians and ministers do not grasp. Let me see if I can set out this difficult concept here in a very few words. This is important because it is the main stumbling block.

Every so often I run into non-Aboriginal friends and acquaintances who have been deeply shocked and moved by the latest exposé about First Nations conditions. (Some years ago DIAND published a book about living conditions on reserves called Indian Conditions. It would be worth digging up.) There is a natural and understandable impulse to figure out a solution, to make it all better. It is hard to explain to my well-meaning friends that that is just not possible.

I don’t mean that it is not possible for conditions to improve. I mean that it is impossible for an outsider, including all the public servants in DIAND, to produce the ultimate solution for a number of reasons.

Two Harvard law professors have testified now and again before both the Senate Committee and the Commons Committee on Aboriginal matters. Their thesis is, in American terms, that “Sovereignty comes before economic development.” They elaborate that thesis in a number of studies and their briefs to the committees by saying that it is necessary to create the conditions under which a First Nations community can become genuinely autonomous, at least vis-à-vis the federal or provincial governments as a pre-condition of economic development programs.

This finding is, of course, strikingly similar to what has been found throughout the world of nations decolonized following WWII.

I have called this a policy of No policy, i.e., any policy that is concocted either in Ottawa or Queen’s Park or its counterparts in other provinces intrudes upon the autonomy which is a necessary precursor to development. Even if it is the world’s most wonderful program of its kind, it is unlikely to succeed when it is stuffed down the throats of recipient communities. Throat stuffing causes indigestion.

Penner recommended that a First Nation be recognized by Canada upon providing a copy of its constitution to a panel established for that purpose. The constitution need only provide the most elementary requirements in order to gain Canadian recognition: a democratic legislature of some sort; a system of accountability by the government or legislature to the members of the community.

Of course, there would need to also provide an accounting to a federal funding agency, e.g., DIAND or its successors. By and large a copy of the report provided to the citizenry of the First Nation should suffice. Funding can not be used, as it is at present to be the tail that wags the dog. Funding should not be made in “one line items”, as they are called, in the departmental Estimates as happens at present so that not even the Auditor General let alone an MP or a First Nations chief can figure out what is actually being approved by the passing of those Estimates by Parliament.

I could dwell at much greater lengths on the seemingly endless examples of abuse of First Nations emanating from federal agencies but you would not known much more after reading such an endless list as you know from reading this. What we all need to get our minds around is the meaning of “A Policy of No-policy”.

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1 Although I don’t think it is a conflict of interest, I confess to having worked on a research contract for the Penner Committee

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