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Water Today Title December 15, 2017

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A Discussion of Aboriginal and First Nations Self-Government - 6/29/12

by Michel Ryan
2012 has the potential to be a memorable year for Aboriginal issues in Canada.

In January we saw the Crown-First Nations gathering in Ottawa. In July we will witness the election for the office of National Chief at the Assembly of First Nations. Canada has celebrated the 30-year anniversary of the patriation of the Constitution without much fanfare, marked 200 years since the War of 1812 with pride, and 2013 will mark 250 years since the Royal Proclamation.

Meanwhile some First Nation Chiefs are working to organize a legal Initiative for Self-Government and a Conservative MP has put forward a Private Member's Bill that hopes to modernize the Indian Act and establish annual consultations to determine which parts of the Act should be repealed. All in all, it's shaping up to be a big year for Aboriginal issues.

And there has been progress. At the Crown-First Nations gathering in January, the government of Canada made public commitments to condemning the errors of the past, when efforts were explicitly focused on assimilating First Nations people, and it has promised to work together with First Nations people to build a new relationship.

Yet, despite the commitments that have been made and affirmed at the recent Crown-First Nations gathering in Ottawa, there are still some Chiefs who fear, off the record, that the government is only positioning itself to do as little as possible while appearing to honour its obligations.

Assessing such fears is extremely difficult and sometimes dangerous. It is difficult to criticize government efforts for First Nations issues without sounding like a stooge of the official opposition who wants nothing more than to pounce on any semblance of wrongdoing on the government's part. It's also a dangerous line to walk because you can easily be accused of defamation should you get too critical and be subject to legal action. And even if you manage to avoid all that you'll still likely face serious criticism from both First Nations and the government saying that you just don't know what you're talking about and its not your place to pontificate on these historic issues.

But let's give it a try.

Stated Outcomes of the Gathering:

If you visit the Prime Minister's webpage report on the Crown-First Nations gathering, (http://pm.gc.ca/eng/media.asp?id=4600) you will find three "Immediate Steps for Action" that were affirmed by the government:

    1. Movement toward a single, multi-year Government of Canada financial arrangement for First Nations with high-performing governance systems

    2. Improved accountability provisions for all parties

    3. Financial self-sufficiency of First Nations as the end-goal

Let's consider these steps with a critical eye.

Number one affirms that those First Nations which are doing well and exhibit "high-performing governance systems" will have access to secure, multi-year funding arrangements from the government. Nothing wrong with helping those groups that have demonstrated they know how to get a thing or two done.

But implicitly, those First Nations that are in most need of help and secure funding arrangements are excluded. The recent publicity surrounding the housing crisis in Attawapiskat, for example, highlighted what can happen in the absence of secure, multi-year funding. It's easy to end up with half-finished projects because you couldn't get the funding approval to pay the contractors to finish building the houses.

At the very least, this provision should be accompanied by a tangible step to start a discussion or a consultation process that focuses upon those reserves that are currently in states of crises. Today there are many bands that are experiencing crisis levels of housing shortages, lack of access to clean drinking water, or alarming rates of suicide amongst their populations, among other challenges. These issues can be found from Vancouver Island to the Northwest Territories to Northern Ontario and Quebec. In the Prime Minister's Outcome Statement on the gathering, there is no mention of any plans to address situations of crisis. This arguably presents the danger that the renewed relationship Prime Minister Harper says he is committed to fostering will be one that ignores those most in need of help.

Number two ("Improved accountability provisions for all parties") is by far the most vague of the immediate steps for action and arguably the most important. Addressing the accountability crisis that exists for many First Nations is the most impressive challenge of any renewed relationship because it has to in some way address the Indian Act.

The Indian Act is a fundamental barrier to clear accountability, as Chiefs are accountable to their people but dependent on the department of Aboriginal Affairs for broad swathes of their funding approval, again giving rise to situations like that in Attawapiskat where it remains extremely difficult to get a sense of who failed whom on the housing crisis - was it the failure of the band's governance, were funds misappropriated, did the government fail to view the reserve with sufficient concern and provide enough secure funding to get the job done? Any talk of accountability inevitably touches on issues of governance, and this is where things really start to get murky.

The third point on economic self-sufficiency is also closely tied to the accountability goal since you can't truly achieve economic self-sufficiency without effective self-governance, and vice-versa. The two go very much hand-in-hand, but there is very little to be found in the Prime Minister's report that shows tangible actions being taken on these two goals.


It is the opinion of many Chiefs, academics, community leaders, and First Nations citizens that none of the challenges First Nations face today can be properly addressed without first dealing with the promise of self-government.

The federal government has openly acknowledged that First Nations in Canada have an inherent constitutional right to self-government under s.35 of the Constitution, 1982. (see http://www.aadnc-aandc.gc.ca/eng/1100100031843#implemech) The Prime Minister's report (http://pm.gc.ca/eng/media.asp?id=4600) had this to say on governance: "The Government of Canada and First Nations will work to develop solutions to remove barriers that hinder First Nations governance. The Indian Act cannot be replaced overnight, but through the use of existing tools and the development of new mechanisms, both parties can create the conditions to enable sustainable and successful First Nations."

Assuming that the Prime Minister chooses his words carefully, which he usually does, this is a revealing statement coming out of the gathering. It potentially contradicts the government's supposed recognition that the right to self-government is a constitutional right.

In the above quote, the Prime Minister alludes to the replacement of the Indian Act after careful "use of existing tools and the development of new mechanisms" to "create the conditions to enable sustainable and successful First Nations". Now, replacing the Indian Act with a modern equivalent may be better than the status quo, but it falls significantly short of recognizing the constitutional right of self-government. When the Supreme Court says, as it has in many cases, that Section 35 of the Constitution contains an inherent right to self-government for First Nations, this has a very specific meaning. (See Supreme Court decisions from Van der Peet, Pamajewon, Delgamuukw, Mitchell).

It means that the right to self-government exists ipso-facto, i.e., it cannot be repealed or interfered with by any other body of government because the right flows directly from the Constitution. This means that even if the government revealed today a broad, well thought out bill designed to facilitate self-government for First Nations, this would fall short of what is required.

A bill that grants self-government rights and mechanisms is still just a bill. Any government at any time can repeal, amend, or suspend it. In short, it offers nothing more than delegated authority - akin to having the government say 'hey, we know your entitled to handle your own affairs in cooperation with us and the provincial governments, but we're not sure your up to that yet so we'll grant you the powers your entitled to in a temporary manner, just in case you screw it all up and we have to step in.'

I should note that I really don't believe this is necessarily the intention of the individuals working within the government who are trying to help with building a new relationship with First Nations. But intentions aren't worth much if the ultimate result falls short of the government's constitutional obligation. After all, if the government will not comply with the Constitution, then it is in no position to makes claims about pursuing accountability.

For example, the average Canadian is probably more familiar with the constitutional rights promised under the Charter of Rights and Freedoms than with those contained in s.35. Under the Charter, every Canadian citizen has certain rights guaranteed directly from the Constitution and they can only be violated if the government can prove their purpose for doing so is pressing and substantial. In other words, you have a right to free speech and if that is going to be interfered with the onus is on the government to prove it has a really good reason for doing so. You do not need to apply to have this and the other Charter rights recognized; they are just there.

By contrast, before a First Nation can enjoy their constitutional right to self-government, they must undergo a rigorous formal application process through the Department of Aboriginal Affairs and they must be able to incur the costs of meeting those requirements and going through that process without help from the government. (see http://www.aadnc-aandc.gc.ca/eng/1100100031843#implemech for full details on the government's approach to the inherent right of self-government).

I am not familiar with any other constitutional right that requires the party to undergo the time and expense of fulfilling a formal application process designed and assessed by a government body before the right can be enjoyed. Imagine if you had to prove you were able to handle the heavy burden of free speech before you were allowed to protest in the streets! Imagine you had to fill out forms, pay for a legal consultant to help you make sure you're applying properly, and then you had to wait for approval from the Department of Charter Affairs?

Again, I might be mistaken, in fact I frequently am, but I am not familiar with any constitutional right that requires government approval before it can be enjoyed. Most of the rights we enjoy under the Charter had to be contested through the courts before their limitations were fully understood, but once those lines are drawn in the legalistic sand, you don't have to apply to exercise your freedom of religion, association, freedom from discrimination and so on. If the constitutional rights every Canadian enjoys under the Charter are free from such constraints, I do not understand why it makes sense to require First Nations to undergo such a process. In effect, it seems that this arrangement shifts the focus from the government's constitutional obligation to deliver on self-government to the First Nations' obligation to undergo and incur the costs of an extensive application process to request fulfillment of that right.

What is more is that this arrangement, like the first step of action from the Prime Minister's report quoted above, seems to disproportionately discriminate against those First Nations that are most in need of assistance and effective governance. The current structure would seem to tell these people that they must first pull themselves up by their bootstraps before they are entitled to their constitutional right or their basic rights to things like clean water, good health, and a safe home.

The government also plainly states at the outset of their approach to self-government, "Under the federal approach, the central objective of negotiations will be to reach agreements on self-government as opposed to legal definitions of the inherent right." Unless I am misunderstanding, this seems to be a clear commitment to offer only delegated authority, as opposed to the inherent rights that are promised under the Constitution. Sure, it might be better than the colonial assimilation policies of old, but is that really going to be standard against which we assess action on First Nations issues? I for one, think we can do better, but only if we look these challenges in the face and refuse to accept half-measures in place of concrete results. The constitutional right to self-government for First Nations was effectively entrenched in law in 1982 - today in 2012, the Canadian state has yet to deliver on that promise.

-Michel Ryan

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