Trojan Buffalo Program Assessment 1995

THE "TROJAN BUFFALO"?

INHERENT RIGHT, FEDERAL POLICY AND THE BUREAUCRACY:

A SITUATIONAL ANALYSIS.

Prepared as a joint project for the

Union of B.C. Indian Chiefs

and the

Union of Nova Scotia Indians

by Peter Di Gangi

Ottawa, 15 May - 6 June, 1995.

TABLE OF CONTENTS.

1. STRUCTURAL CHANGE AND FISCAL RESTRAINT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

2. FEDERAL POLICY ON THE "INHERENT RIGHT" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32.1. Cabinet Submission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32.2. Federal Policy Directions on the Inherent Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2.2.1. Preconditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42.2.2. What does s. 35 cover with respect to the inherent right? . . . . . . . . . . . . . . . 52.2.3. Section 35 Remains an Empty Box . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62.2.4. What is on the Table for Negotiation? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

2.2.4.1. "Existing Inherent Rights" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72.2.4.2. Federal Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82.2.4.3. Non-Negotiable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92.2.4.4. Provincial Headings of Authority . . . . . . . . . . . . . . . . . . . . . . . . . . 10

2.2.5. Litigation vs. Negotiation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112.2.6. Mechanisms for Implementing Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . 12

2.2.6.1. Treaties and the Inherent Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122.2.6.2. Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142.2.6.3. Other Mechanisms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

2.2.7. The Fiduciary and Trust Obligations of the Crown . . . . . . . . . . . . . . . 142.2.8. Negotiation Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

2.2.8.1. Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162.2.8.2. Tripartite Forums, Third Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . 172.2.8.3. Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172.2.8.4. Transition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

2.2.9. The Role of the Provinces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172.2.10. Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

2.2.10.1. Financial Responsibility and Control . . . . . . . . . . . . . . . . . . . . . . . 192.2.10.2. Maintain Existing Expenditure Levels . . . . . . . . . . . . . . . . . . . . . . 202.2.10.3. Taxation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

2.2.12. Off Reserve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212.2.13. Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232.2.14. Approvals and Ratification of Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . 24

2.2.14.1. Federal Coordination of Negotiations . . . . . . . . . . . . . . . . . . . . . 242.2.14.2. Ratifying Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

2.3. Conclusions re: Liberal Policy on the Inherent Right . . . . . . . . . . . . . . . . . . . . 25

3. FEDERAL POLICY INITIATIVES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263.1. Devolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

3.2. On and Off Reserve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273.3. "Pilot Projects" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273.4. Community Based Self Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

3.4.1. A Specific Example . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293.4.2. CBSG and Inherent Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

3.5. Legislative Alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313.6. Federal Talk vs. Federal Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

4. AUTHENTIC GOVERNMENT TO GOVERNMENT RELATIONS . . . . . . . . . . . . . . . . . . . 314.1. The Character of DIAND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334.2. Internal (Dis)Organization at DIAND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334.3. Placement of DIAND within the Federal Government . . . . . . . . . . . . . . . . . . . . . . . . . 344.4. The Bureaucracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354.5. Compartmentalism vs. Holism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374.6. Criteria for Measuring an Effective Negotiation Process . . . . . . . . . . . . . . . . . . . . . . . . 394.7. Financing Self Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

4.7.1. Changing the Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 404.7.2. The "Burden" of Indian "Administration" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 404.7.3. The Result of Dependency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 414.7.4. "Program Dollars" vs. Real Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

4.7.4.1. Existing Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434.7.4.2. Revenues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434.7.4.3. Needs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

4.7.5. Personnel and Bureaucratic Dynamics in Ottawa . . . . . . . . . . . . . . . . . . . . . . 43

Bibliography. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Appendix #1: Evaluation Criteria for Bilateral Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

INDIAN GOVERNMENT, FEDERAL POLICY AND THE BUREAUCRACY:

A SITUATIONAL ANALYSIS.

Efforts by the Indian nations to develop approaches to self government will need to anticipate a varietyof factors. There are other forces at work which stand to impact on Indian initiatives in this area, andthey need to be considered in connection with Indian nation's objectives and priorities. This brief isintended to provide a situational analysis of some of these factors. Below, we will investigate andprovide observations on four key areas:

* National currents - structural change and fiscal restraint. These are trends whichare bringing about changes in the balance of power and the relationships between alllevels of government in Canada.

* Federal policy on the "Inherent Right". The directions in which the federal Liberalsare headed with respect to self government are now clear. Certainly these will have amajor impact on Indian expectations and strategy for the duration of the Liberal's term,and beyond if they are re-elected.

* Existing Federal "Self Government" Initiatives. It seems that many, if not all,elements of the "new" federal policy framework derive from existing federal policies andprograms.

* Structure and politics of the bureaucracy. No matter what the prevailing policy is,its implementation will be influenced by the structure of the federal government and theculture of the bureaucracy. These factors need to be considered at least as carefully asthe policy itself, since they preceded it, and will surely survive the demise or rise of anyparticular party or policy.

It is hoped that this analysis will provide some assistance in considering the issues at hand.

1. STRUCTURAL CHANGE AND FISCAL RESTRAINT.

Foremost among the things that stand to impact on any movement toward authentic Indian governmentis the fundamental structural change now taking place in Canada and globally. After years of failedefforts at constitutional reform, events are forcing federal and provincial governments in Canada toreinvent their role and function without constitutional amendment. The results will be as far reaching aswhat was proposed under Meech Lake or the Charlottetown Accord, but without the trappings ofpublic meetings and referendums.

This change has two distinct but related elements.

Trojan Buffalo - A Situational Analysis. 2

1 For further information on Canada's Program Review see Federal Program Assessment & Review: BuffaloJump II? (Union of B.C. Indian Chiefs, November 1994).

The first involves a realignment of federal, provincial and municipal jurisdictions, responsibilities, andactivities. Generally speaking, the federal government's presence will become smaller, and theprovinces and their subsidiary governments will be left to fill the gaps.

The second involves fiscal policy, and revolves around "corrective measures": deficit reduction, costcutting, and off loading. Canada and the provinces are engaged in a struggle to maintain or increasetheir share of a shrinking fiscal pie.

In fact, the federal government-wide Program Review which took place during 1994 and its impact onthe February 1995 budget indicates that this process is already well underway.1 The criteria for theProgram Review were essentially financial (how to trim existing budgets) and structural (how to shrinkthe responsibilities, role and size of the federal government). Already, many federal departments havetaken major cuts, and transfer payments to the provinces will see significant reductions. This is aprocess which will continue for the next five years at least.

The situation is very dynamic and things are happening fast. As the federal and provincial governmentsjockey for position, there exists the distinct possibility that once again, Indian nations will be shut out ofsubstantive involvement, and left to pick up the leftovers once the other levels of government havecarved out their piece of the action.

Self Government cannot be contemplated in terms of existing arrangements or practises. New norms,practises and standards are quickly emerging for intergovernmental relations, fiscal flows &responsibilities, and the role & scope of "government" generally. Indian nations must be active andinfluential participants in this process if their needs and rights are to be equitably accommodated.

Any initiative on self government will be taking place at a time when Canada - its governments,economy, and society - is engaged in fundamental structural change and substantive realignment. Certainly the federal government, and to an extent the provinces, have their objectives and game planset. They will be looking out for their own interests now more than ever.

Given these circumstances, it is suggested that this analysis may be used to assess how Indian nationsmight best position themselves to deal with what is coming. If Indian nations do not act to define theirjurisdictional sphere and occupy the field to their best advantage, events may well overtake them.


2 "Creating Opportunity - The Liberal Plan for Canada" (Liberal Party of Canada, Ottawa, 1993): p. 98.

3 Ottawa Citizen, "Native leaders want Irwin to release secret document", p. A4, 13 May 1995.

4 "Draft Policy Framework for Implementation of the Inherent Right and the Negotiation of SelfGovernment" (Annex "A" to draft MC, DIAND, spring 1995). Hereafter referred to as "Annex A".

2. FEDERAL POLICY ON THE "INHERENT RIGHT".

2.1. Cabinet Submission.

The federal Liberal's Red Book states that "a Liberal government will act on the premise that theinherent right of self-government is an existing Aboriginal and treaty right".2

To many First Nations, the inherent right of self government exists independent of federal andprovincial powers, and is already recognized, affirmed and protected by s.35 of the Constitution Act,1982. Although the federal Liberals appear to have embraced the term inherent right and areprepared to connect it in some way to s.35, this is not to say that they share the same vision as the FirstNations.

At least as early as the fall of 1994, DIAND had begun developing approaches to the inherent right. These were brought to Cabinet, and Minister Irwin was told to consult more widely (particularly withthe provinces), add more detail, and in general, gather additional support.

Throughout the winter and spring of 1995, Minister Irwin met with a number of provincial Ministers. "Consultations" of a sort were also undertaken with selected aboriginal leadership, nationally andregionally, although there was no formal process or systematic canvassing of opinion. There is noindication that First Nation leadership had any substantive role in shaping the policy itself. In fact, theleaders of the four national aboriginal organizations have written to Prime Minister Chretien, callingDIAND's development of the draft policy "unilateral", and rejecting Minister Irwin's "vest pocketconsultations".3

At this point in time, the content and form of the submission to Cabinet is essentially complete. In lateApril parts of the current draft Memorandum to Cabinet (MC) were leaked and by now has receivedwide distribution.4

On May 8th 1995 Minister Irwin informed National Chief Ovide Mercredi that the policy would bereviewed by Cabinet by the end of May. Earlier, the Minister had made it clear that he would notreturn to cabinet on the inherent right until he felt that his proposals enjoyed broad based supportamong his Cabinet colleagues. It appears that he feels this support is now present. But there are other


practical imperatives behind the push to have Cabinet approve the policy framework soon: DIAND'sauthority for particular initiatives (ie., Community Based Self Government - see below) has expired, anda renewed policy is needed to continue funding groups who are negotiating.

2.2. Federal Policy Directions on the Inherent Right.

From the federal Liberal's perspective, just what is the nature and scope of the inherent right, andhow should its recognition and implementation be managed? The recently leaked portion of the MC onself government, along with related documents and other hints which have been dropped, provide anindication of what they have in mind and how they intend to proceed.

In developing this MC, it seems clear that Minister Irwin faced the same resistance which met earlierattempts at seeking support for the principle of the inherent right. This resistance remains present notonly among the provinces and the bureaucracy, but also among the right wing of the federal Cabinet. The tone and content of the draft policy reflect an attempt to accommodate these interests and tocontain the level of dialogue that will proceed with the First Nations.

As we shall see below, the available evidence raises concerns about the federal Liberal's definition ofthe inherent right, and their intentions. This is not to say that discussions with Canada pursuant to theproposed policy would be fruitless, but that they will need to be managed with significant caution.

Another important point about the draft policy framework is that it is not specifically for "First Nations"or "Indians". Throughout the text, the term "Aboriginal people" (not peoples) is used. This policy then,is to apply not only to the Indian Nations, but also to the Inuit, the Metis, and the various off-reserveIndian organizations that now exist, or may come into existence.

By lumping the unique circumstances and particular legal and historical rights of Indian nations in withother "Aboriginal people", the policy succeeds in lowering the ceiling of what is on the table fornegotiation, and the overall parameters of the nature and scope of the inherent right.

2.2.1. Preconditions.

Whatever ends up obtaining recognition as an inherent right, there are preconditions which the federalgovernment has laid out. These are that:

* First Nations must operate "within the framework of the Constitution.... in harmony withjurisdictions that are exercised by other governments". This will require "a harmonious


5 Annex A #8.

6 Ibid. #10.

7 Ibid. #9.

8 Ibid. #12.

9 Ibid. #11.

10 Ibid. #3.

relationship of laws".5

* The inherent right does not, in Canada's view, include "the right of sovereignty in theinternational law sense".6

* Self government agreements and treaties must contain a provision allowing for theapplication of the Charter of Rights & Freedoms to aboriginal governments.7 Thereference to treaties would seem to apply to future treaties.

* "As a general rule.... agreements will not deviate from the basic principle that federaland provincial laws of an overriding national or regional importance will take priorityover Aboriginal laws."8 This sounds like the POGG - peace, order & goodgovernment - requirement that was included in the Charlottetown Accord.

* Federal and provincial laws cannot be automatically displaced by the introduction of aFirst Nation law - federal and/or provincial laws may continue or coexist, depending onthe outcome of negotiations.9

The policy framework states that in the absence of agreement between the parties with respect to thenature and scope of the inherent right, "definitive pronouncements by the federal government on themeaning of the inherent right are unlikely to advance the implementation of self government".10 Thisgives the impression that Canada has an open mind on what might be matters for negotiation.

However, the preconditions set out above, combined with the many constraints that will be reviewedbelow, indicate that, on the contrary, Canada is fully prepared to set the benchmark by making"definitive pronouncements".

2.2.2. What does s. 35 cover with respect to the inherent right?


11 Draft Policy p. 15.

12 Ibid. #2.

Although the Liberal government says that it recognizes the inherent right to self government as anexisting right covered by s. 35 of the Constitution Act, 1982, this recognition is qualified andconstrained in a number of ways.

DIAND's draft policy states that the inherent right is an aboriginal right within the meaning of s.35,and that it "may also find expression in treaties".11

Only some self government rights will be considered inherent. These fall into two main categories:

(i) "matters that are internal, and integral to their own cultures, identities, traditions,languages, and institutions"12 [emphasis added]

This suggests that if some internal matters are not "integral", they will not be considered inherent. Byimplication, this means that inherent rights are frozen rights. It is not clear who will determine what is"integral" to indigenous identity and what is not.

(ii) "matters relative to the special relationship to the land"

This is code for "reserve lands", probably with the option of exercising some kinds of authority on someCrown lands, where provincial consent is obtained.

Although these are the rights which Canada appears ready to accept as inherent rights alreadyprotected by s. 35, their actual nature and scope, and their specific application to a particular IndianNation, will still require negotiation with Canada, and ultimately Canada's consent. In this sense,inherent rights - their definition and their implementation - are contingent upon Canada (and in somecases provincial) agreement.

This is certainly a case where Canada has taken the terminology and made it mean what it was neverintended to mean: they say inherent, but what they are talking about is wholly contingent. Theimplications of this word-game are significant, and give grounds for caution.

2.2.3. Section 35 Remains an Empty Box.

To obtain s. 35 protection in other jurisdictional areas, First Nations will have to negotiate with Canada(and in many cases the provinces) to obtain their agreement that such rights might be covered by s. 35


13 Annex A #19.

treaties. Other items may be part of a self government agreement, but not receive s.35 protection -again, this will be dependent on federal and/or provincial consent.

At the end of the day - at least in Canada's view - all aspects of the nature and scope of selfgovernment rights will be subject to negotiations with Canada and (in many cases) the provinces, andcontingent upon their consent.

In this respect, s.35 remains an "empty box", which can only be filled with the inherent rights thatfederal and provincial governments choose to recognize. This is essentially the same scenario envisagedin the Charlottetown Accord, but without the requirement for constitutional amendment.

2.2.4. What is on the Table for Negotiation?

There are four basic categories of powers that Canada has identified which set the parameters of theirpolicy framework:

2.2.4.1. "Existing Inherent Rights".

As pointed out above, in Canada's view existing inherent rights are those matters which are internal andintegral to aboriginal culture and identity, as well as those which relate to the management of reservelands. Consistent with this approach, the items which can be negotiated under this heading are thosethat relate to internal governance, administration, and reserve lands.

More specifically, this could include "all, some or parts of the following":13

-"governing structures" (constitutions, elections, accountability, etc.)

-Membership, marriage, adoption, child welfare, social services.

-Education, "aboriginal languages, culture and religion", health.

-"Administration/enforcement of Aboriginal laws; aboriginal courts or tribunals of thetype normally created by local governments for contravention of their laws"[emphasis added]; policing.

"Transfer and management of monies and group assets".


14 Annex A #21.

15 Ibid. #20.

-Licensing, regulation & operation of businesses "located on Aboriginal lands" (ie., on-reserve).

-"Management of local and community public works and infrastructure", housing.

-On reserve lands management: zoning, service fees, land tenure and access; propertymanagement (succession and estates); "expropriation of Aboriginal lands [ie., reservelands] for local group purposes"; natural resource management & agriculture.

-On reserve harvesting: hunting, fishing and trapping. (probably off reserve too, subjectto agreement with provinces).

Given the size of most reserves in British Columbia, some of these items (ie., natural resourcemanagement, agriculture, harvesting) are of limited use unless they are accompanied by an increasedland base. Significantly, the policy framework does not deal with the question of additional lands forFirst Nations at all.

It does, however, state that many of these headings of power (and those listed in #2.2.4.2. below) are"only feasible with a land base".14 This appears to be directed at those "Aboriginal people" (Metis andoff reserve/non-status) who do not reside on established reserve lands (although within very limitedconfines, the prospect of some lands for these groups is held out - see below).

On another level, most of the items enumerated above are already the subject of existing devolutionprocesses or sectoral initiatives (see below re: devolution, alternatives to the Indian Act, etc.). In thissense, what is now being offered under the cloak of inherent rights has already been on offer for sometime.

2.2.4.2. Federal Delegation.

There are other subject areas which, in Canada's view, "may go beyond matters that are integral toAboriginal culture", but where Canada is willing to negotiate agreements on a tripartite basis "to enableAboriginal governments to exercise some measure of jurisdiction or authority".15 [emphasis added] However, this offer requires an admission of overriding federal authority:

.... in these areas where they involve federal jurisdiction primary law-making authority wouldalways remain with the federal government. The exercise of Aboriginal jurisdiction or authorityin these areas could therefore not be inconsistent with federal laws.


The subject areas under this category include:

-Taxation powers: The power to tax is not considered by Canada to be inherent incharacter, even though it is clear that the redistribution of wealth and the stewardship ofresources for collective benefit have always been a part of indigenous societies. Thishas major implications when considered along with other aspects of the draft policyframework that call on Aboriginal governments to raise their own revenues, or whichallow that the regulation of commerce on reserve is inherent.

The position taken by Canada assumes that First Nation governments do not possesstax immunity or the authority to use taxation as a means of achieving social andeconomic policy objectives, even though these powers are clearly accepted as essentialcomponents of existing provincial and federal headings of power. In this sense, forIndian nations, the inherent right means less than what other governments take forgranted.

-Labour law.

-Divorce law: Although Canada seems prepared to concede that marriage comes underthe inherent right, divorce does not.

-The administration of justice; penitentiaries and parole.

-Aspects of environmental protection and assessment and pollution control: This issignificant, since reserve lands, being federal, are subject to federal EnvironmentalAssessment Guidelines and the Canadian Environmental Protection Act. Canada'swillingness to recognize land management as inherent will not, therefore, necessarilyremove federal laws or authority from reserve lands.

-Fisheries co-management: This would seem to be a major concern, given currentevents in British Columbia and the Atlantic.

-Gaming: As above, this promises to present difficulties.

-Emergency preparedness.

2.2.4.3. Non-Negotiable.

There are two categories of subject matter which Canada is not prepared to negotiate in the context of


16 Annex A #24.

the inherent right: powers related to Canadian sovereignty, and "other national interest powers".16

In these areas, exclusive jurisdiction must remain with the federal government. Moreover, there are no compelling reasons for Aboriginal government to exercisepower in these areas, which cannot be characterized as either integral toAboriginal cultures, or internal to Aboriginal groups" [emphasis added]

For some of the headings listed below, however, this reasoning seems quite arbitrary, particularly giventhe fact that upon contact with the Europeans, Indian nations' treaty making powers and control overthe conduct of "foreign affairs" were clearly recognized.

(i) Powers Related to Canadian Sovereignty, Defence & External Relations:

-International/diplomatic relations & foreign policy-national defence & security-security of national borders-international treaty-making-immigration, naturalization and aliens-international trade, including tariffs and import/export controls

The fact that many Indian nations have traditionally used and occupied lands and resources on bothsides of the USA-Canada border suggests that this movement of Indian people is in fact integral to theculture and practises of particular nations.

(ii) Other "National Interest Powers":

-Management and regulation of the national economy, including "regulation of thenational business framework", fiscal and monetary policy, currency, the banking system,trade and competition policy, bankruptcy and insolvency; intellectual property, and theincorporation of federal corporations.

-"maintenance of national law and order and substantive criminal law", includingCriminal Code offenses and penalties and "other criminal laws", as well as emergenciesand the peace, order and good government power.

-"Protection of health and safety of all Canadians".


17 Annex A : #4, 5.

18 Annex A , #16, 17.

-"Federal undertakings and other powers", including broadcasting andtelecommunications, aeronautics, navigation & shipping, transportation, postal service,census and statistics.

2.2.4.4. Provincial Headings of Authority.

The policy framework makes it clear that provincial participation in negotiations is essential (see below). However, the reality of provincial powers, and their impact on what can be negotiated, is not dealt within any detail in the draft policy framework. This silence should not be interpreted to mean thatprovincial governments will not also have their own lists of "negotiable" and "non-negotiable" items fromtheir own menu of constitutional headings of power.

It can be expected that any First Nation jurisdiction off reserve (ie., harvesting, lands and resources, offreserve members & services) or which affects the provincial headings of power (ie., taxation,commerce) will require provincial - as well as federal - participation and consent.

2.2.5. Litigation vs. Negotiation.

Canada admits that its views on the nature and scope of the inherent right are different than those ofthe First Nations, and recognizes that "the inherent right may be enforceable through the courts". However, Canada says that it prefers negotiations:

Litigation over the inherent right should be a last resort to implementation, both becauseof time and cost factors, and because the courts are most likely to provide only generalguidance and leave it to the parties to work out detailed arrangements for the exerciseof the inherent right...... Negotiations among governments and Aboriginal people are,therefore, the only practical and effective way of implementing the inherent right.17

However, the policy framework does not rule out the potential for litigation. It states clearly that iflitigation is pursued, Canada will take a harder line on the nature and scope of the inherent right thanwhat is offered through its policy.18 Although in court Canada "would not deny the general propositionthat the inherent right of self government is an existing right within Section 35", it would argue for caseby case review based on circumstances particular to the First Nation:

In individual cases consideration would be given... to the particular history of an


19 Annex A , #16.

20 Annex A , #12.

21 Annex A #13.

Aboriginal group, and its relationship, if any, to an existing land base.19

To mitigate against the possibility of litigation after agreements have been signed, Canada suggests thatthe agreements

... may establish rules of priority to govern conflicts between validly enacted Aboriginallaws and federal or provincial laws and may provide for paramountcy of Aboriginallaws in areas that are purely internal to an Aboriginal community and integral toits distinct Aboriginal culture .20 [emphasis added]

As above, there remains the question of what party might be competent to determine just what is"integral" to a "distinct Aboriginal culture". Certainly, from Canada's perspective, it seems clear that thiswill not be left up to the First Nations.

In cases where such rules of priority have not been established, Canada suggests that conflicts may beresolved by applying part of the Sparrow analysis:

... federal and provincial laws that interfere with the exercise of the inherent right asexpressed in validly enacted Aboriginal laws or other executive actions would likelyhave to be justified. At a minimum, federal and provincial laws of an overriding nationalor regional importance would continue to apply to Aboriginal people and their lands.21

The above reference to laws of "overriding... regional importance" seems to be directed at placatingprovincial interests, particularly with respect to Quebec, and probably B.C.

2.2.6. Mechanisms for Implementing Agreements.

There are a range of instruments which Canada says may be used to confirm agreements on selfgovernment as they are reached. These are reviewed below.

2.2.6.1. Treaties and the Inherent Right.

The policy framework acknowledges that existing treaties are "fundamental to the special relationship


22 Annex A : #42-43.

23 Ibid. #44.

24 Annex A #35.

25 Annex A #36.

between treaty First Nations and the Crown". 22 Canada says that it is not its intention to "reopen,change or displace" existing treaties through the proposed inherent right process, but rather, it wishesto build on the existing treaty relationship.

At the same time, however, if self government negotiations take place in the context of existing treaties,final agreements must "be consistent" with the policy framework. This poses problems, particularlysince many aspects of the policy framework challenge, or are inconsistent with, the terms of existingtreaties between Indian nations and the Crown.

Canada promises that existing Aboriginal and treaty rights "will be respected", and also that it willcontinue to "fulfil its statutory and treaty obligations".23 Given current federal conduct related to thetreaties (ie., fisheries litigation), it is difficult to see how these promises can be kept without first comingto an agreed upon understanding of the terms of the treaties themselves and the parties' obligations. The policy framework makes no attempt to address this matter.

The document explains how s.35 protection may be offered for self government agreements, whetheras an extension of existing treaties or as new initiatives. Canada will "consider protecting rightsnegotiated in self government agreements as Section 35 treaty rights or as part of comprehensive landclaim agreements".24 On the one hand this is characterized as "a continuation of the historic relationshipbetween Aboriginal people and the Crown". On the other hand, contrary to this "historic relationship",provincial governments will have an effective veto on whether or not self government agreementsreceive s.35 protection.

The policy framework provides reasons why Canada feels that provincial consent is necessary. If theprovinces were to challenge a s.35 agreement, the courts may find that self government "is not a propersubject for Section 35 treaties" since it could alter the constitutional division of powers whilecircumventing the amending formula.25 The courts may also see such agreements as going beyond thescope of s.91(24). To "minimize" these risks, Canada's position is that provincial consent is "essential"for self government agreements to be considered s.35 treaty rights.

The document discusses what would be appropriate to include in s.35 self government treaties, shouldprovincial consent be obtained: "the primary criteria for inclusion of a matter in a treaty should be


26 Annex A #37.

27 Annex A #39.

whether it is a fundamental element of self government which should bind future generations".26

A menu of appropriate subject matter is presented:

-"a listing of jurisdictions by subject and related arrangements including the relationshipof Aboriginal laws to federal and provincial laws";

-the geographic area where jurisdiction will be exercised, and the people to whom itwill apply; and

-accountability mechanisms with respect to the internal operation of the "Aboriginalgovernment", "in order to establish its legitimacy and the legitimacy of its laws within theConstitution of Canada".

Given the uncertainty revolving around the terms of many existing treaties, Canada says that newtreaties should be precise to avoid ambiguity.

2.2.6.2. Legislation.

The policy framework suggests that legislation (presumably federal and in some cases provincial) canbe used to compliment s.35 self government treaties, or as an independent source of authority for"Aboriginal governments".27 In the former case, legislation could be used to ratify the treaties; toimplement particular provisions of treaties, or "to act as a backstop in the event a treaty is struckdown". In the latter case, legislation could be used as a "stand alone mechanism" to provide selfgoverning authority to an "Aboriginal government".

Federal legislation, and its connection to any self government initiative (whether a pilot project,"legislative alternative", or s.35 self government agreement), will need to be considered at some point.

Canada's 91(24) legislative responsibility for "Indians and lands reserved for Indians" has, for the mostpart, been used with prejudice against the Indian Nations, as a means of asserting control over them. This naturally gives rise to caution and even fear when the word "legislation" is used today. However,past use of 91(24) powers does not necessarily mean that all legislative measures are inevitablynegative. The role and nature of federal legislation and its connection to Indian self governmentinitiatives needs to be carefully considered in more detail.


28 Ibid. #40.

29 Ibid. #41.

30 Annex A #45-46.

31 Annex A #5.

2.2.6.3. Other Mechanisms.

"Legally enforceable contracts" may be used to set out detailed or technical arrangements relating toimplementation of agreements, whether or not they deal with inherent rights.28 Memorandums ofUnderstanding - which are not legally enforceable - can also be used for setting out "politicalcommitments" or other matters which the parties do not want to be the subject of litigation.29

2.2.7. The Fiduciary and Trust Obligations of the Crown.

Without enumerating what these obligations actually are, Canada does offer the general principle that itsfiduciary obligations will diminish as First Nations take on "increased jurisdiction or authority, andresponsibility under self government arrangements".30 The assumption seems to be that most, if not all,federal fiduciary obligations will disappear as a result of self government arrangements. Those thatremain will be residual, and continuing federal obligations "should be clearly defined".

This seems to be somewhat of a reverse approach to the issue - instead of entering negotiations with ashared understanding of Canada's fiduciary obligations, the discussions will focus only on what (few)remaining obligations will continue.

There are a number of other questions which could also be raised here. For instance, how will theCrown's fiduciary duty be applied to its conduct during self government negotiations? What impactdoes the Crown's fiduciary duty have on the level of resourcing for self government institutions, or withrespect to meeting First Nation needs? Predictably, none of these matters are raised in the policyframework. But they do need to be articulated and addressed at some point.

2.2.8. Negotiation Process.

"Negotiations among governments and Aboriginal people are.... the only practical and effective way ofimplementing the inherent right."31 Canada will not respond favourably to unilateral assertions ofauthority by First Nations.

Canada says that "diversity and flexibility will be key features" of negotiated self government


32 Annex A #18.

33 Annex A #66.

34 Ibid. #73-75.

35 Ibid. #67.

36 Ibid. #81.

agreements, taking into account the different "political, economic, legal, historical, cultural and socialcircumstances".32 What this appears to mean is that Canada may be prepared to show some flexibilityif the particular facts of the First Nation party are strong enough to win in court.

Although the draft policy framework states that arrangements will "differ significantly from group togroup", it should also be noted that the "diversity and flexibility" referred to will only occur within theconfines of the policy framework itself. This will allow Canada to impose consistent limits on what canand cannot be negotiated in each particular negotiation without the bother of having to deal with nationalFirst Nation positions or principles.

At what level will negotiations take place? The policy framework says that they might occur at the"local, regional, treaty or province-wide level", but that the size of the grouping and economies of scalewill be significant criteria.33 "Cost effectiveness and efficiency will be key factors guiding thedevelopment of negotiation processes."

The negotiation of self government will not be supported by additional resources from the federaltreasury: monies for negotiations "will come from existing federal resources".34 At the same time, theprovinces and "Aboriginal groups" will be expected to contribute to the cost of negotiations.

2.2.8.1. Representation.

Canada is prepared to sit down with "duly mandated representatives of Aboriginal groups" and theprovince to discuss processes for negotiation of self government.35 With respect to representation onthe Aboriginal side, the policy framework has this to say:

It is essential that individuals negotiating on behalf of Aboriginal people have been dulymandated by the group they are representing, and that support is maintained throughoutthe negotiation process. The onus to resolve any disputes regarding representationwithin or among Aboriginal groups should rest with the Aboriginal groups concerned.36

Canada's position that representation on the Indian side is a strictly internal matter would be easier to


37 #93.

38 Ibid #78-80.

39 Ibid. #83.

40 Ibid. #82.

believe if the federal government was not in the habit of intervening in internal matters through fundingallocations and decisions to negotiate with particular parties. This is highlighted by the followingstatement found at the end of Annex A:

The Federal Interlocutor for Metis and Non-Status Indians is mandated to enter intonegotiations between the federal government and the Metis and off-reserve Indiansconsistent with this framework.37

If Canada is serious about its stated commitment to respect internal representation, then it will need todemonstrate this commitment by withdrawing from any activity that could be seen to intrude on mattersrelated to internal representation and accountability.

At the same time, the fuzziness of these definitions with respect to the identity and capacity of which"aboriginal groups" can legitimately come to the table promises to raise the same problems faced by theB.C. Treaty Commission. Does an Indian Act Band or an association incorporated underfederal/provincial legislation have the capacity to negotiate matters related to the inherent right?

2.2.8.2. Tripartite Forums, Third Parties.

Canada's preference is to make use of existing tripartite forums for negotiations "where feasible andappropriate". 38 New tripartite forums may be created to facilitate negotiations where the parties agree,and subject to federal Cabinet approval.

Canada commits to working with the provinces and Aboriginal peoples to "develop consultationmechanisms for municipalities and third parties that may be directly affected" by negotiations andagreements.39 This seems to imply that Canada's position is that municipalities and third parties will notbe a direct party to negotiations.

2.2.8.3. Dispute Resolution.

Canada is willing to "explore" dispute resolution measures that may be applied in the course ofnegotiations and once agreements are signed.40 However, given the financial constraints alreadydiscussed, these measures will be an additional cost with no additional source of revenue.


41 Annex A #48-50.

42 Annex A #6.

43 Annex A #36.

2.2.8.4. Transition.

Canada is concerned that implementation not lead to "legal vacuums or uncertainty", and calls for"appropriate transition measures". "Aboriginal groups" may choose to approach self government on asectoral basis, or take a phased approach to the assumption of jurisdiction.41 The Indian Act willcontinue to apply in the meantime.

2.2.9. The Role of the Provinces.

Canada's position is that the provinces will have a major role in any negotiations. The fact that MinisterIrwin was directed by Cabinet to consult with the provinces before finalizing the self government policyframework seems to indicate that they were given significant influence - if not an outright veto - over itscontents.

In light of the wide array of Aboriginal jurisdictions or authorities that may be thesubject of negotiations, and given their relationship to areas of provincial jurisdiction, itis essential that provincial governments participate in the negotiations and areparties to any related agreements.42 [emphasis added]

There appear to be a number of motivations behind this position. One, of course, is the reality thatprovincial headings of power occupy significant portions of the field that Indian nations want to occupy. If, as Canada states, it wants "a harmonious relationship of laws", then from its perspective this willnecessarily require provincial involvement.

This is particularly true in the negative sense - the policy framework raises the (not implausible)bogeyman of provincial legal challenges to any agreements that infringe on provincial headings of poweror give expansive interpretation to federal s.91(24) authority.43

Another is that Canada has always been ready to dilute its fiduciary and trust obligations to the FirstNations - and therefore its apparent ability to deliver - by playing jurisdictional ping-pong withprovincial governments.

At the same time, keeping in mind that this policy framework will apply to all "Aboriginal people",


44 Ibid. #68.

45 Ibid. #69.

46 Ibid. #70.

47 Annex A #53-59.

Canada wants the provinces to pay - particularly with regard to eventual arrangements with the Metisand "off reserve" Indians (see below for more on this point).

Canada's preferred approach is tripartite negotiations, but it also holds out the possibility of "doublebilateral process" in certain circumstances. This, however, requires clarification. Does Canada meanbilateral discussions between First Nations and the federal government taking place parallel to bilateraldiscussions between the Federal Government and a particular province. Or does Canada meannegotiations between the Indian nations and the province at one table, and the Indian nations and thefederal government at another?44

Only in "very exceptional circumstances" would Canada be prepared to proceed without provincialinvolvement (ie., if a province refuses to participate). In these cases, the negotiation menu would benarrowed significantly, and subsequent agreements would not receive s.35 protection.45

At the outset of this paper, we discussed the global trends of structural change and fiscal restraint whichare the fundamental backdrop to current changes in inter-governmental relations. From thisperspective, each province will be assessing the impact of the inherent right in terms of the structuraland fiscal changes noted above, and how it will affect their interests.

On the one hand, this situation, combined with Canada's position on the financial responsibilities of theprovinces, may serve to ally the interests of the provinces and the First Nations (ie., work together tofight federal off-loading). On the other hand, the whole scenario may be enough to scare someprovinces off completely, or drive them to taking an even narrower position than Canada on the natureand scope of the rights at issue.

Sectoral negotiations (ie., policing, education, reserve lands) are also possible.46

2.2.10. Financing.

This is a crucial aspect of any effort at renewed institutions of Indian government, and promises to beone of the most contentious. Canada says that financing self government is "a shared responsibility offederal, provincial, territorial and Aboriginal governments".47


48 Ibid. #65.

49 Annex A #62.

50 Ibid. #62-63.

2.2.10.1. Financial Responsibility and Control.

Agreements on financing will take the form of tripartite agreements, as well as in some cases bilateralagreements between Canada and the province. Canada "will maintain its position that it has primary butnot exclusive responsibility for on-reserve Indians.... while provinces have primary but not exclusiveresponsibility for other Aboriginal people". This means that the feds will pay most of the costs for on-reserve Indians and the Inuit, while the provinces will be expected to pay most of the costs for off-reserve Indians and Metis.48

Funding for self government must be affordable and consistent with the social andeconomic policies and priorities of [federal and provincial] governments. The fiscal andbudgetary capacity of the federal, provincial, territorial and Aboriginal governments willbe a primary determinant of the financing of self government.

This implies that even with "self government", Canada and the provinces will continue to control thepurse strings and set priorities. Note that First Nations "needs", or an equitable distribution of overallfiscal resources, are not mentioned at all with respect to the financing of self government.

Fiscal negotiations will instead focus on existing levels of funding, as well as the ability of "Aboriginalgroups" to raise their own revenues, and efficiency & cost-effectiveness. These positions and theirimplications need to be connected to our earlier discussion of taxation as a non-inherent right.

2.2.10.2. Maintain Existing Expenditure Levels.

It is clearly stated that "All federal costs associated with the implementation of self-governmentagreements will be accommodated within existing federal expenditures".49 [emphasis added] Thisposition is taken even with the acknowledgement that self government negotiations and new institutions,as well as one time start up costs, will represent a considerable expenditure.50 In other words, therewill be more to do with the same amount of money - so reductions in some areas will have to takeplace in order to free up resources for new areas of activity.

At the same time, the policy framework bluntly takes the position that "self government agreements will


51 Ibid. #64.

52 Vancouver Sun, "Treaty deals 'must lead to taxation'", p. 1, 5 May 1995.

not include any program enrichment"51, while ignoring the fundamental question as to whether or notexisting program funding levels are adequate to meet needs. However, it is held out that once self government agreements are in place, "Aboriginal governments"will be free to redirect their monies into whatever areas they want, "subject to maintaining whateverstatutory requirements and minimal standards of program & service delivery which may have beenagreed upon".

This is very similar to the position taken by Canada in its ongoing debate with the provinces aboutblock funding transfer payments (ie., health care, social services and education): overall levels oftransfers will be reduced, but provinces will enjoy more flexibility with respect to how they spend theremainder.

Canada says that governments should work together to "harmonize funding, program and servicearrangements to ensure the efficient and effective use of scarce resources". This appears to mean thatduplication of services and funding will be targeted. At the same time, it implies that conformity will besought with respect to regulations and standards in some areas.

2.2.10.3. Taxation.

"Where feasible, Aboriginal governments and institutions should raise their own revenues in order toreduce reliance, over time, on transfers from other governments." This point is particularly important inlight of the fact that taxation does not appear on Canada's list of inherent rights, but rather on thenext level of jurisdictions which remain federal (see above).

In addition, recent statements made by Minister Irwin in connection with the Nisga'a land claimnegotiations in B.C. raise additional questions - not about First nations collecting tax, but about FirstNations paying tax. The provincial government has insisted that a removal of Nisga'a tax exemption isnecessary to "sell" the final agreement to the B.C. public. Irwin has responded by stating that removalof existing tax exemptions must take place, but it will take place nationally, across the board:

Indians who strike costly land claims deals and form their own governments shouldeventually pay taxes back into Canadian society, federal Indian Affairs Minister RonIrwin said.... [But] taxation should only come when first nations develop solid economicbases.52


Other governments are well aware that the financing of self government and Indian taxation are volatileissues. In this connection, they are certainly not reluctant to rely on public reaction to diminish Indianexpectations.

At the same time, this approach betrays Canada's supposed commitment to recognition of the inherentright: it is a generally accepted principle in Canada that all governments have a right to tax, and to beimmune from tax by other governments. It is also accepted that governments are free to use taxation asa tool in promoting their economic and social policy objectives. Canada's exclusion of taxation fromthe list of inherent rights which it is prepared to recognize does not appear to allow for thisrecognition. Rather, it would seem to doom Indian governments to perpetual dependence on otherlevels of government.

2.2.12. Off Reserve.

The on/off reserve issue has been simmering for many years. It has been brought about by theoperation of the Indian Act (status, membership, residency), the lack of economic or educationalopportunities on-reserve (and therefore migration), and federal policies of off-loading services for non-status and/or off-reserve people to the provinces.

This situation has been exacerbated by the federal (and in some cases provincial) policy of funding "off-reserve" and/or "non-status" political and service organizations, without letting Indian nations themselvesfirst deal with representation and membership issues.

Canada's policy framework in some ways appears to continue the sharpening of this divide. On theone hand, it will apply to all "Aboriginal people", and therefore will be available to existing organizationsof all shapes and sizes. On the other hand, the Federal Interlocutor for Metis and Non-Status Indianswill be responsible for managing the negotiation process as it relates to the Metis and off-reserve/non-status organizations, and not DIAND's Minister.

This may however be a shell game, since throughout the draft policy framework, whenever Metis andoff-reserve/non-status organizations are mentioned in connection with responsibility and cost, they areconnected to the provinces.

The federal government maintains its position that provincial governments haveprimary responsibility for Metis and off-reserve Indians . ..... The federalgovernment is prepared to enter into self-government negotiations at the invitation ofMetis and off-reserve Indian people..... provided that the province in question agrees to


53 Annex A #25.

54 Annex A #26.

55 Annex A #28.

participate.53

In this light, if a province refuses to participate then it is quite likely that no substantive process willemerge.

As mentioned above, many of the broad headings of power which Canada says are available fornegotiation are "only feasible with a land base" - code for reserve land. The menu offered with respectto the off reserve is therefore limited:54

-Forms of public government: This means no separate institutions of Indiangovernment, but absorption into settler institutions of "public government" - a policy hasalready been applied for years in the NWT and Yukon.

-Devolution of programs and services "where applicable": Where numbers warrant,"Aboriginal Service Delivery Institutions" would be able to negotiate the delivery ofservices, possibly on a status blind basis.

-The development of institutions providing services (presumably where none alreadyexist).

-Other powers where a land base (reserve) is not essential for the exercise of thatpower.

Canada acknowledges that "many Metis and off-reserve groups wish to acquire a land base"55, but thiswish is met with a clear signal to reduce expectations.

The federal position is that lands that may be needed by Metis and off reserve people for "residentialpurposes" are a responsibility of the provincial governments [emphasis added]. Canada will onlyconsider the possibility of taking responsibility for the provision of lands "if it is deemed necessary andcomplementary to the management of a federal program or service that is transferred to a Metis oroff-reserve Indian group." [emphasis added]

This is not to say, however, that the policy framework contains no recognition of the fact that FirstNations may have other ideas in mind. Canada does leave the door open for the application of someIndian nation laws and the delivery of some services off-reserve:


56 Annex A #22.

57 Annex A #27.

58 Ibid. #23.

59 Ibid. #47.

60 Ibid. #60-61.

In certain situations, members of an Aboriginal group who reside off the land base (e.g.off-reserve status Indians ) may wish to be governed by some of the laws of theAboriginal government or receive services from its institutions. Such situations wouldhave to be addressed in co-operation with the provinces and Aboriginal groupsconcerned.56

As well, the policy framework contains a qualified federal commitment to enumerate "off reserve peoplewho may be covered by self government arrangements" - so long as it involves provincial participationin the context of tripartite negotiations.57

2.2.13. Accountability.

There are a number of places in the policy framework where the matter of accountability comes up. Inalmost all cases, the issue arises in connection with accountability procedures that will be required of theIndian nations. Almost no mention is made of measures to ensure federal accountability to Indiannations, in light of its fiduciary duties or otherwise.

As already pointed out, Canada's position is that the Charter of Rights & Freedoms will apply to allnegotiated agreements. At the same time, agreements will "have to" include provisions which guaranteethat "the rights and interests of any non-Aboriginal living on an Aboriginal land base are respected".58

Internal constitutions of each "Aboriginal government" should spell out mechanisms to ensure "politicalaccountability" to its members. These mechanisms will need to be "transparent" to all, including non-Aboriginal people who will have dealings with Aboriginal governments or their institutions.59

There is also the matter of financial accountability. Canada states that Aboriginal governments must be"administratively and financially accountable to their members or clients".60 Public accounts should beprepared and made available, with mechanisms to ensure "transparency, disclosure and redress". Thissounds reasonable. However, on top of this, monies provided by the federal government must beaccounted for to satisfy Parliamentary-accountability requirements: "Financial agreements must provide


61 Ibid. #84-88.

62 Ibid. #89.

for accountability mechanisms to achieve this requirement." This means that, notwithstanding scarceresources, Indian governments will be expected to maintain a two-tier accountability regime.

2.2.14. Approvals and Ratification of Agreements.61

2.2.14.1. Federal Coordination of Negotiations.

An Interdepartmental Steering Committee on Self Government is to be established with a mandate toreview specific negotiation mandates, agreements-in-principle, carry out an ongoing review of overallfederal strategy, ensure that all relevant federal departments and agencies participate as required"across the federal system", and develop "performance indicators" to assess progress.62

Members of this Committee will be able to approach individual Ministers or Cabinet directly onparticular issues as needed.

DIAND's Minister will be responsible for negotiations with "Indians and Inuit", while the FederalInterlocutor for Metis and Non-Status Indians will be responsible for conducting negotiations with theMetis and off-reserve Indians.

2.2.14.2. Ratifying Agreements.

On the First Nation side, Canada will require evidence of broad based and informed decision-making(probably through referenda), and will insist on measures to ensure that decisions are binding. As notedabove, there is no discussion of what will be considered as an authentic or legitimate self governingentity.

On the federal side, approvals will follow a number of steps: Cabinet approval for Agreements-in-Principle and final Agreements; Finance and Treasury Board approval for fiscal arrangements; TreasuryBoard approval for implementation plans; and Parliamentary approval (legislation) for self governmenttreaties and implementation measures.

The policy framework makes no mention of provincial approvals, but it can be expected that these willbe devised by each provincial government in turn.

2.3. Conclusions re: Liberal Policy on the Inherent Right.


At the outset, it should be stated that this assessment of the federal Liberal government's inherentrights policy is based only on a review of a draft submission to Cabinet as well as other indicators andclues which the Liberals have dropped since being elected to office. Nonetheless, there is enough clearevidence to come to some conclusions on how the federal government appears to have decided toapproach the issue.

Canada appears to be playing a game of charades, using the term inherent rights to describe what areessentially contingent rights. To define the nature and scope of these rights, they are contemplating aseries of provincially or regionally based negotiations which - ideally - would result in agreements on thenature of the rights and their implementation and exercise. In all cases, the federal Crown will be aparty to the negotiations and the agreements. In most cases, the province will also be involved. Ultimately, the majority of most agreements will require the consent of Canada and the province.

At the same time, the policy itself and the proposed process are very similar to what was contained inthe Charlottetown Accord, the main differences being that in this case the negotiations will take placewithout constitutional amendment, and the menu items and conditions are more specifically enumerated. In fact, if one looks carefully at the menu of what is on offer for negotiation, it resembles closely thesame items which have already been on offer for many years, either through devolution, communitybased self government negotiations, or the other sectoral initiatives that came out of the LRT Review(more on this point in Section 3 below).

In this sense, this "new policy" is not really new at all, but merely a reprise of what has already beenconsidered - and rejected - in the Charlottetown referendum, as well as a re-packaging of what hasalready been peddled through DIAND programs and policies for many years.

It appears that Minister Irwin's approach is an attempt to reconcile pre-election promises (which raisedFirst Nation expectations considerably) with the post-election reality that there is still strong resistanceto the notion of the inherent right among the provinces and within Cabinet and the bureaucracy.

It may well be that the "leak" of the self government policy framework was orchestrated by the Liberalsthemselves as a "trial balloon" to gauge the response from First Nations and lower expectations inIndian country. This possibility should not be ruled out, and needs to be considered in any formalresponse to the proposed policy.

All of this is tempered by the different circumstances found in each province. British Columbia, facingan election and the prospect of its treaty process ending up on the rocks, faces particular problems.

At the same time, the unique history and circumstances of each Indian nation should be of someassistance in pushing the boundaries of the federal policy framework. Certainly there are many matters(identified in the preceding text) where the proposed policy is completely at odds with the statedposition of many nations, and/or at odds with the Crown's existing commitments pursuant to the treaties


or its fiduciary and trust obligations.

In any case, approaches pursuant to the proposed policy will need to be well thought out and cautious,with a mind to the long view. As was said in the first section of this paper, Canada and its institutions ofgovernance are undergoing fundamental structural and fiscal change. There is no doubt that Indiannations will need to be involved, if for no other reason than to protect their interests for the long term. The question that remains is, upon what basis - and by whose terms - will this involvement take place?

3. FEDERAL POLICY INITIATIVES.

The above conclusions are corroborated by the directions in which existing federal initiatives areheaded. While discussions on the inherent right are proceeding, federal efforts at increasing "FirstNation control" and "jurisdiction" appear to consist of an acceleration of existing policies and processes,with some minor adjustments. There are a number of things which have come to characterize federalself government-related initiatives that stand to affect approaches which Indian nations may want toconsider, as well as their assessment of the inherent rights policy itself.

3.1. Devolution.

Devolution involves the transfer of administrative functions and services provided by Canada throughthe Department of Indian Affairs, the Medical Services Branch, the Solicitor General, etc. The processnow underway in Manitoba to dismantle DIAND is perhaps the clearest and most comprehensiveexpression of the continuation of this policy. However there are other examples - in many provinces,devolution continues to proceed along sectoral lines: policing, technical services, health, education, etc.

For the most part, the devolution process has not included any discussion of whether or not existingprograms and services are relevant or effective in the first place. Rather, negotiations have focused onthe transfer of programs and services as they now exist.

Similarly, it is narrowly focused on the distribution of existing budgets, apparently without any seriouswillingness to consider whether or not existing funding levels and formulas come even close to meetingneeds. In fact, the theme of fiscal restraint referred to above has become a standard refrain on the partof bureaucrats when budgets or needs are discussed. The end result may be that First Nations are leftwith responsibility for providing services without the resources to do the job effectively or adequately.

The policy framework on the inherent right described in the preceding section remains consistent withthese patterns, and in this respect does not represent a new point of departure.

3.2. On and Off Reserve.


In the recent past, federal efforts to off load costs and responsibilities have sharpened the administrativedivide between "on" and "off" reserve residents. This is reflected in a number of ways, including the offloading of responsibility for "off reserve" services and costs to provincial governments; political dialogueand funding for "off reserve" organizations; and the focus, in many devolution negotiations, to discusson-reserve services only.

The federal Liberal's "new" policy framework continues this practise, by insisting on provincial financialresponsibility for off-reserve Indians, and by providing the mandate for self government negotiationswith off-reserve Indians to the Federal Interlocutor, and not the Minister of DIAND.

3.3. "Pilot Projects".

Minister Irwin has a penchant for pilot projects. Each region or province has been offered anopportunity to showcase a particular sectoral initiative - in Nova Scotia it is the MEA; in Quebec the"Mohawk Round Table"; in Manitoba the dismantling of DIAND; in Saskatchewan treatyimplementation and "co-management"; in Alberta oil & gas and "Indian Monies"; in B.C. the TreatyCommission; in the NWT and Yukon, comprehensive claims.

Although some of the pilot projects may hold some promise for positive medium term change, they aregenerally accelerated or expanded versions of what was already happening prior to the Liberal'selection. None of them approaches "self government" in comprehensive terms, or reflects the globalvision and principles expressed by Indian nations themselves..

Opinion appears to be divided as to whether or not these pilot projects are evidence of seriouscommitment to "self government", or merely devolution disguised. Regardless, they have succeeded inbringing Canada and the First Nations together - at the regional level - to address matters whichdemand attention. At the very least, the pilot projects are an opportunity for further dialogue onsubstantive sectoral issues and to learn just what Canada's "bottom line" actually is in each case.

Some observers had been suggesting that the apparent "success" of these sectoral/regional initiatives,combined with the difficulties encountered in securing an inherent rights policy in Cabinet, wouldprovide Minister Irwin with an opportunity to state that at this time there is "no need" to proceed withan inherent rights policy at all. But things have unfolded differently - it now appears clear that thefederal strategy has been to pursue its inherent rights policy by consolidating already-existing initiativesand using them as the basis for the inherent rights process.

The federal Liberal policy framework for self government provides for sectoral initiatives, consistentwith the approach being taken in many of the pilot projects. However, so long as the pilot projects arepremised on the transfer of federal authority, and not the recognition of Indian authority, they will


63 Audit of Community Based Self-Government Program (DIAND Audit Branch, Ottawa, February 1993).

64 CBSG Briefing, from John Sinclair, ADM DIAND, to Minister Irwin, 21 April 1995.

remain largely an outgrowth of existing devolution policies, and in that respect they will not represent abreak with the past.

3.4. Community Based Self Government (CBSG).

This policy was introduced in 1986 and intended to provide a basis for the negotiation ofcomprehensive "self government" agreements which would then be legislated by Parliament andeffectively displace the operation of the Indian Act.

By 1993, 102 proposals had received some degree of funding, but only 23 were still "active". Over$50M had been spent, of which $30M went to Bands/Tribal Councils and $20M (40%) to DIAND. And yet, no final agreements had been signed. DIAND carried out an internal audit of the CBSGprogram in 1993 which identified serious problems and made 20 recommendations for improving theprocess.63

With the Liberal government's announcement that it recognized an existing inherent right, there wassome confusion within the bureaucracy as to what would happen to the CBSG program. Irwin hadsaid that CBSG was dead, pending a new initiative on the inherent right. However, monies were stillappropriated and further direction was not forthcoming from the Minister. Officials proceeded underthe existing CBSG guidelines until the fall of 1994, when about half of the negotiating groups had theirfunding cut off.

Those that remained were told that their negotiations were to be considered as "transitional", in thesense that they would converge with recognition and implementation of the inherent right once a policyhad been approved by the federal cabinet.

They were also told that they had better work hard at reaching final agreements soon or that the axewould fall on them too. However, adequate resources were not provided to meet this new sense ofurgency. In one case a Tribal Council took a 75% cut in funding at the same time they were being toldto accelerate negotiations and community approvals.

As of March 31st 1995, DIAND's authority under the CBSG program expired. A special submissionwas made to Treasury Board (TB) seeking additional funds to continue negotiations. TB grudginglyprovided a three month extension of spending authority to help bridge the negotiations, on theunderstanding that once Cabinet had approved the new inherent rights policy, CBSG would comeunder that umbrella.64


3.4.1. A Specific Example.

An example of the problems currently faced by those groups trying to wrap up CBSG agreements isprovided by the United Indian Councils, which represents 9 Chippewa, Mississauga and Potowatomicommunities in southern Ontario.

They have been involved in CBSG negotiations for close to ten years. A framework agreement withCanada was signed in June 1990 which opened the way to substantive negotiations. Since then anumber of subagreements have been signed, covering matters such as governing principles, legal statusand capacity, structures of government, elections and public decision making, membership andresidency. Other issues such as health and justice have also been the subject of negotiations. Keyissues - such as taxation and fiscal relations - remain outstanding. As a part of this process, tripartitenegotiations with the province of Ontario, Canada and the UIC were taking place on particular issues(ie., lands & resources), but this aspect is not covered here.

The negotiation of the framework agreement and the first 3 years of substantive negotiations were withthe Conservative government of Brian Mulroney. These negotiations have been described as difficultbut nonetheless, subagreements were being signed - and in most of them, UIC negotiators were able toobtain wording which explicitly or implicitly recognized the inherent right.

UIC's expectation was that with the Liberal government publicly committed to recognition of theinherent right, the wording of these agreements would present no problems - the more so since theyhad already been initialled. This expectation proved to be overly optimistic.

Over the past six months, almost every subagreement has been called into question by the variousfederal departments involved - DIAND, Justice, Human Resources, etc. These departments are pullingtheir support for the subagreements, and insisting that all reference to the inherent right be struck out. The whole package which had been negotiated now appears to be unravelling.

The UIC has been told that, instead of recognizing an inherent right to jurisdiction in the subject areas,the subagreements must instead reference a delegated authority, transferred from the federalgovernment to the UIC Bands.

This has particular relevance to one signed subagreement which recognized a Tribal level of governmentover and above the individual Indian Act Bands who are members of the UIC. The intent was torecognize that the communities collectively have an inherent right to institutions of governance beyondthe Band level, and that these institutions existed for centuries before the birth of the Canadian state.

Recently, the federal government has indicated its intention to scrap this subagreement, taking theposition that only Band Councils can exercise an inherent right to self government. This position is atodds with the principle that the right of self determination resides with the collective based on national


identity: shared culture, language, laws and territory. This turn of events is cause for concern.

UIC representatives lament that they are now being offered less than what had already been agreed toby the Tories. At this stage the federal negotiator, when pressed, has not been able to say withcertainty whether or not the Minister (or Canada) is actually committed to signing off on a substantiveself government agreement with the UIC.

Needless to say, none of this has inspired confidence on the part of the communities. One would thinkthat if a new policy truly recognizing the inherent right was soon to be approved by Cabinet, federalnegotiators would not be so anxious to back away from commitments that were consistent withrecognition of this right.

Their experience and the positions taken by Canada would appear to be grounds for concern on thepart of all First Nations.

3.4.2. CBSG and Inherent Rights.

Generally speaking, those First Nations involved in the CBSG process over the past ten years havebeen dealing with the same menu items which have now been consolidated in the federal Liberal'spolicy framework. As well, the requirement for provincial participation in negotiations as a prerequisitefor expanding that menu remains as it has been.

If these matters were re-cast in terms of the recognition of existing inherent rights as the result of a newpolicy, there would be some grounds for claiming that actual progress had been made. However, therecent experience of the United Indian Councils suggests that the opposite may be true.

3.5. Legislative Alternatives.

In the late 1980's the Mulroney government encouraged a number of sectoral legislative initiatives underthe guise of the "Chiefs Governance Working Group", partly as a response to the fact that the CBSGprocess was not producing agreements, and partly as a followup to the Lands, Revenues & Trusts(LRT) Review. Activity covered a range of areas, including lands management, elections &membership, trust funds, oil & gas, forestry, etc. Most of these survived the Charlottetown Accordand the election of the Liberals, and remain alive. In fact, in Alberta the trust funds and oil & gasinitiatives have been reborn as "pilot projects".

The policy framework which appears to be the basis of the federal Liberal's approach to selfgovernment provides for the continuation of these initiatives under the rubric of sectoral negotiations.

3.6. Federal Talk vs. Federal Action.


65 For further detail on the items discussed in this section, see Crown First Nation IntergovernmentalRelations (Peter DiGangi, Revised version, February 1995).

Although the commitment to recognize the inherent right was made with much fanfare, it appears to behaving a difficult birth by at least two measures. The first has to do with the Cabinet submission'sapparent stall and the role of the provinces in vetting it. The second has to do with the fact that on thelevel of policy and operations, it is pretty much "business as usual" - the initiatives which formed thecornerstones of Tory Indian policy have been adopted - without much adjustment and apparentlywithout hesitation - by the Liberals.

This leads to the possible conclusion that if (when) the inherent rights policy does make it throughCabinet, it will merely signal the consolidation and formalization of existing initiatives and policies relatedto devolution and the transfer of administrative responsibilities. If this is the case, then the inherentrights policy framework may only be a Trojan Horse for the 1990's.

4. AUTHENTIC GOVERNMENT TO GOVERNMENT RELATIONS.

There are a number of reasons why most of the initiatives of the recent past have not met with success,despite the rhetoric about First Nation control and recognition of rights. In this section, we will identifythose which need to be considered in the context of authentic self government.65 Each of these things,in their own way, will need to be considered if the objective of this exercise is to obtain a legitimateprocess that will lead to authentic self government.

As we have already mentioned in a preceding section, policies and governments come and go, but theorganization of government and the culture of the bureaucracy remain surprisingly consistent. Realmovement on obtaining authentic government to government relations will involve more than respondingto new policies and priorities identified by other governments. It will require changes in the way thatother governments are organized around the issues, and how they conduct their relations with Indiannations.

A self government process will initiate a long and complicated series of negotiated measures towardgiving aboriginal jurisdiction (and the treaties) a substantive reality in terms of Crown-Indian relationsand Indian governance. Indeed, an authentic self government process should have the effect of raisingIndian concerns from the mere pursuit of claims and the redress of wrongs to the enshrinement ofprinciples and norms that will, over time, alter the relationship between Indian governments and theirinstitutions with the rest of Canada.

To facilitate acceptable outcomes, the character of negotiations will have to be enrobed in a new andmore positive set of underlying relations between First Nations and their opposite numbers: Indians


66 see Ibid.

must no longer be construed as clients and claimants; and their objectives must no longer been seen asthreatening or self-serving.

By itself, the mere recognition by federal or provincial governments that an inherent right to selfgovernment exists does not change anything. To make this commitment real, there is an urgent need tocreate new kinds of relationships with these governments - relationships that are informed by commonpurposes and the equality of the partners in the process.

A self government negotiation process alone will not guarantee acceptable outcomes for an Indiannation. All factors that may contribute to the success or failure of self government need to be identifiedand transformed. The existing relationship between Indian nations and the Crown - client/provider,master/servant - needs to be replaced with a substantive intergovernmental relationship. Thisrelationship must recognize Indian government authority (as against other governments) while alsoguaranteeing Indian government accountability (as between Indian institutions of governance and theIndian people).

For this to happen, the institutions that currently exercise power over (or manage relations with) Indiannations need to be reformed. Structural change at the federal level and the transformation of relationsbetween Crown departments and agencies with respect to Crown-Indian relations is as important to thesuccess of self government as is internal renewal among the Indian nations themselves.

This entails far more than simply transferring existing programs and services to Indian Bands orinstitutions. It requires a re-thinking of the way in which the Indian-Crown relationship itself ischaracterized and conducted.

Normally, "Indian Policy" has been mandated by Cabinet but delivered by the Department of IndianAffairs, within the confines of the Indian Act and other federal/provincial legislation, and withoutreference to treaty or aboriginal rights. This poses a number of significant problems for establishingauthentic intergovernmental relations between Indian nations and the federal Crown.66 Some of theseare discussed below.

4.1. The Character of DIAND.

It is important to note that DIAND's primary purpose is to administer Indian programs and the IndianAct - in other words, to maintain the basis of the colonial relationship which brought about thedispossession of Indian nations in the first place. This is what defines DIAND's character and dictates


67 Audit of Community Based Self-Government Program (DIAND Audit Branch, Ottawa, February 1993):see pp. 19; 29; 41.

68 CBSG Audit: pp. 17; 26; 28; 30-31; 35.

69 See Crown First Nation Intergov't Relations: pp. 1-6.

what is "possible" or "appropriate" from a departmental point of view. It has bred generations ofbureaucrats who carry with them a certain mentality that is essentially self serving and hostile towardsany change in that relationship.

DIAND's purpose has never been to conduct a government-to-government relationship with the Indiannations. So, when confronted with the notion of self government, DIAND's response has been to boxit in, using the status quo as a yard stick. None of this would appear to make DIAND a goodcandidate for stickhandling the kind of fundamental change that is implied by authentic self government.

4.2. Internal (Dis)Organization at DIAND.

Administratively, DIAND is overly complex. This mitigates against coordinated action orresponsiveness to Indian objectives. The Department's own 1993 audit of the CBSG programadmitted that DIAND was "involved in a number of policy and program initiatives with possibleoverlapping and competing jurisdictions"67, and went on to describe how hard it would be to coordinatewith other federal departments when DIAND itself found it difficult to "control and coordinate its ownjurisdictions".

The same audit also noted gaps in command and control between headquarters and each of DIAND'sregional offices.68 Two years after the audit's completion, the same problems remain. The result is thateffective policy coordination is most often the exception rather than the rule, and that each branch andregion operates to legitimize and advance its own perceived interests - interests which rarely coincidewith those of the Indian nations.

4.3. Placement of DIAND within the Federal Government.

DIAND is not a central agency - ie., a department with wide-ranging responsibilities for thedevelopment of policies respecting the functions and programs of the federal government as a whole. Thus, its mandate and operational capacity are severely limited when it comes time to deal with thespectrum of issues raised by self government.69

The central decision making roles in the federal government are played by the Department of Finance,


the Treasury Board (TB), the Privy Council Office (PCO, which is the cabinet secretariat), and thePrime Minister's Office (PMO). The Department of Finance and TB deal with maintenance of the fiscalframework. The PMO and PCO set the overall policy framework and with that, the priorities forgovernment action and spending overall. As well, with respect to policy matters that affect the Crown'sfiduciary, treaty or constitutional responsibilities, the Department of Justice is a key player.

These central agencies are the hub of the machinery of government. DIAND is merely a spoke on thewheel, usually approaching central agencies for either more money or exemptions from government-wide policies. A powerful bureaucratic instinct mitigates against the granting of exemptions because ofthe special interests they foster, the administrative complexities they introduce, and the additional coststhey incur. The special status of Indians and Indian nations runs against this inherent predisposition. This has bred cynicism within other agencies and departments when "Indian" issues are beingconsidered.

Institutionally, the federal machinery of government is not organized to deal with Indian issues in a waythat reflects their inter-departmental complexity at the level of strategic policy making and programintegration. It is certainly not organized in such a way as to encourage the development or negotiationof a new and substantive intergovernmental relationship between Indian nations and the Crown.

The one significant exception to the analysis presented above is that Minister Irwin, aside from holdingthe Indian Affairs portfolio, also sits on the Treasury Board - a key forum when it comes time toinfluence the allocation of federal dollars and to integrate Indian policy into the broad range of relevantspending decisions.

Open to question, however, is whether Minister Irwin has the independent human resources at hisdisposal to play the kind of proactive role in the TB Secretariat that integrates Indian issues into theconsiderations that form the broad, policy-directed spending streams sanctioned by the TB Secretariat. Sources of independent analysis as well as inter (and intra) departmental intelligence are needed to beeffective on behalf of his constituents - Indians - at that level of decision-making.

For authentic self government to be a possibility, more comprehensive and effective linkages withcentral agencies are required, in effect changing the traditional role of DIAND as the broker and oftenthe sole federal representative in negotiations and policy development.

Of course, there are reasons for prevailing arrangements. For one, they reflect the low prioritygenerally attached to "Indian" issues. More important, perhaps, is that fact that prevailing arrangementsallow DIAND to be the gatekeeper, essentially preventing Indian nations from engaging in directnegotiations with the key central agencies. This acts to perpetuate the colonial relationship which hasbeen the basis of federal Indian policy since at least Confederation.


70 There is already something similar at the PCO, but it is understaffed and apparently not proactive inadvocating Indian rights and interests.

71 See Crown First Nation Intergov't Relations: pp. 7-10.

However, if efforts at establishing more authentic intergovernmental relations between the Crown andIndian nations are to be serious and effective, the status quo must change. Clearly this will be need tobe an ongoing process taking place over time, but certain measures are required to set it in motion.

As an interim step, the DIAND Minister, in his capacities as both Minister and member of the TB,could be supported by the creation of a PCO Secretariat for Indian Affairs that is more proactive andprovides the Minister with independent judgement and intelligence.70 This would improve bothDIAND's clout in interdepartmental negotiations and the coordination of policies and programsaffecting Indians in all departments and agencies.

Any self government process aimed at developing a new and authentic intergovernmental relationshipbetween Indian nations and the federal Crown must have the direct involvement of central agencies. DIAND can play the role of federal coordinator or facilitator, but should not be the sole (or even theprimary) federal representative. This requires a realignment of federal organization and accountabilityas it relates to relations with Indian governments.

4.4. The Bureaucracy.

No matter what the politicians commit to, and no matter how the machinery of government is organized,implementation still rests with the bureaucracy. The attitudes and role of the bureaucracy can make orbreak successful negotiations and implementation related to self government. For these reasons,special attention must be paid to this item.71

The activities of most government departments and agencies fall into four broad areas:

* program delivery which consists of the provision of a good or service (not necessarily directlyto the public - ie., tax collections or communications services);

* policy development and analysis which consists of enunciating the government's goals andobjectives in a manner that facilitates the achievement of those goals and objectives throughgiven programs;

* systems management which ensures that policy is respected, programs are carried out, and thatpolicies and programs cohere properly; and


* program assessment and review, which is intended to determine the effectiveness andreliability of program delivery and systems management.

The interaction and coordination between these four areas of activity will naturally affect the quality andconsistency of the outcome - within departments and within government overall.

Unfortunately, it appears that these four streams of activity are not effectively coordinated within thebureaucracy. This fact has a direct impact on the outcome of proposed negotiations toward selfgovernment.

Coordination between policy development and program delivery is often absent or poor. "Systemsmanagers" often have little incentive to do anything more than ensure that programs and policies aredelivered predictably and that funds were disbursed on behalf of the stated goals of the program. Mobility of managers between departments diminishes their loyalty to a particular department ormandate, and lessens their need for the development of expertise in their specific area of activity.

Program assessment and review, in this context, is not intended to ask the "big questions" - ie., does thepolicy or program actually benefit the recipients or conform to a particular vision? Rather, the programaudit and assessment process is focused only on whether or not the terms and conditions of theprogram or policy itself have been met.

The result is that Canadians generally - and Indians specifically - are ill-served by a dull andunresponsive public service, whose officials are more intent on the internal functioning of theirdepartments and programs than on the needs of the recipient groups that they have been mandated tosatisfy. Program reviews and audits - as they are currently carried out - are self serving and perpetuatethe status quo - they simply do not ask the right questions.

At the same time, potential problems should be anticipated with respect to command and controlbetween the bureaucrats in Ottawa and their colleagues in regional office. In B.C. there seems to beample evidence for this observation. Rogue operators in the regions - working with or without the tacitapproval of headquarters - can do significant damage to the best intentioned initiatives.

4.5. Compartmentalism vs. Holism.

Another factor which stands as a barrier to effective self government negotiations and the establishmentof an authentic intergovernmental relations is the way in which "Indian programs" and policies aredeveloped and administered by the federal government.

Many federal programs respecting Indians consist of a transfer of a good or service, rarely of cash andalmost never of cash that isn't tied closely to specific terms and conditions. This means that little if anydiscretionary power over spending is given to Indian governments - even considering recent advances


72 CBSG Audit: pp. 19; 45.

73 Nation to Nation: Crown-Indian Relations (Thalassa Research, Vancouver, 31 May 1994, for RCAP).

re: AFA's and "flexible funding arrangements". Sometimes third parties, like the provinces, receive afinancial benefit on behalf of Indians.

The complexity of departments, agencies and levels of government involved in "Indian Affairs" isdaunting. Four federal departments, including DIAND, are involved in economic development andanother when it comes to oil and gas. The Medical Services Branch is responsible for health services. The Department of Fisheries and Oceans covers fish. Both the Federal and Provincial levels share inproviding for education. Taxation matters are dealt with by Revenue Canada, the Department ofFinance, and provincial governments. Legal issues are the territory of the Department of Justice. Andso on.

With responsibility for "Indian" policy and programs spread across government and betweendepartments, the source of authority and ultimate direction & responsibility becomes obscured. Withfederal (and provincial) activities compartmentalized to such a degree, accountability - either to theCrown as a whole, or to the Indian nations - fades away into the bureaucracy.

Under these circumstances, the potential for focused policy development on self government, orsubstantive negotiations, becomes dim. The bargaining leverage of the Indian nations is also reduced,since there are many federal players with a variety of vested interests who can spend years avoidingissues by playing jurisdictional ping-pong.

DIAND's 1993 audit of the CBSG program highlighted the fact that in many cases DIAND's contactand coordination with other departments was ad hoc and not on a shared policy basis, even though"[o]ther departments are key to the negotiations and specific agendas and working relationships mustbe established". It also concluded that "There is no strategic approach being taken with other federaldepartments".72 In the interim, it appears that not much has changed.

Whether it is between departments, or within departments, the tendency toward compartmentalizationhas erected serious barriers to the prospect of negotiating comprehensive arrangements with respect toIndian self government. The presence of the provinces in this context adds to the complexity.

This conclusion is not new, and applies across the country, as demonstrated in the following passagefrom a report commissioned by the Royal Commission on Aboriginal Peoples73:

In response to the 1969 White Paper, the Manitoba Indian Brotherhood tabled a


74 Wahbung: Our Tomorrows (Manitoba Indian Brotherhood, 1971), quoted in Thalassa Research, Nationto Nation.

75 RCAP Hearings at the Pas, Man. 92/5/20: Chief Harold Turner: pp. 251-52, quoted in Thalassa Research,Nation to Nation.

76 RCAP Hearings at Fort Simpson, NWT 92/5/26, Greg Nyuli: pp. 294-295, quoted in Thalassa, Ibid..

document called Wahbung: Our Tomorrows, which highlighted the same problem....

In developing new methods of response and community involvement, itis imperative that we, both Indian and Government, recognize thateconomic, social and educational development are synonymous, andthus must be dealt with as a "total" approach rather than in parts. Thepractise of program development in segments, in isolation between itsparts, inhibits if not precludes, effective utilization of all resources in theconcentrated effort required to support economic, social andeducational advancement.74

Over twenty years later, the Commission has received the same message from thosewho attended the hearings:

All of these along with constitutional reform discussions, protection andimplementation of treaty rights through the treaty making process andthe legislative change discussions should not be done in isolation of eachother since they are all part of a holistic approach to First Nationself-government.75

I also think that in the discussion of self-government and land claims wecan include all of these other issues. Any aspect which affects our life, Ithink, should be dealt with. It is ridiculous to separate items. We haveour little Indian Act over here; we have our land claims policies here;we have our self-government over here. That's not the way the Denepeople are. The Dene people have always maintained a strongrelationship with the land and the way they do things. Again, I feel thatthat is another concentrated effort by a government to break up theway that we live our lives.76

Needless to say, this compartmentalization is essential to the disempowerment upon which the colonialrelationship is based. On the other hand, any effort at reforming or restructuring the Crown'sinstitutional capacity so that the intergovernmental relationship can be properly conducted must place


77 Bilateral Discussions - Examples and Considerations (Peter DiGangi for UNSI, 5 October 1993): pp. 5-9.

78 For additional detail, see Nation to Nation: Indian Nation - Crown Relations in Canada (ThalassaResearch for the Royal Commission on Aboriginal Peoples, 1 December 1994); also Federal Program Assessment &Review: Buffalo Jump II? (Union of B.C. Indian Chiefs, Vancouver, 15 November 1994).

great emphasis on a return to holism, at the levels of negotiation, policy and delivery. Clearly thisrepresents a threat to the status quo.

This counter-productive set of jurisdictional circumstances, whose complexity mitigates even against thepossibility of calculating the costs of the current way of dealing with Indians, must be simplified. EitherDIAND should be made responsible for the dealings of Indians with all jurisdictions - and be madeaccountable for the quality of its representation - or most parts of DIAND should be done away withand replaced with a more central agency that could properly coordinate and be accountable forrelations with Indian governments.

4.6. Criteria for Measuring an Effective Negotiation Process.

In previous work carried out by the Union of Nova Scotia Indians, criteria were identified which can beused as tools to measure the effectiveness of a proposed negotiation process.77 These are enclosed inthis paper as Appendix #1 and provide some additional ideas for consideration.

4.7. Financing Self Government.

Another crucial matter which will affect negotiations towards self government is finance. This headingcovers a number of related items, and has proven to be one of the most contentious aspects ofdiscussions between Indian nations and Canada.

Governments are only one player in a world of transactions. The flow and exchange of goods,services, natural resources and money is the basis of the global economy. These transactions generatecapital for the players which accumulates over time. Governments have the authority to intervene in thisexchange and the accumulation of capital, for the good of their constituents and/or the national interest.

For Indian nations, land and resources are the basis of "capital formation".78 Commerce and theexchange of goods and services are also things which have been present as key elements in theindigenous economy, before and after contact.

4.7.1. Changing the Accounts.

Historically, Indian nations derived interest and benefit from their capital (the lands, waters andresources of the territory). This provided security for the people at any particular point in time as well


79 See Practicle Points for Discussing a Framework for a Mi'kmaq Constitution (UNSI, 1994): p. 7:Resources are the "physical or economic means of acting" - not just financial resources, but also information,technology, human resources and natural resources. These are needed to effectively exercise power, and to "satisfythe needs and expectations of citizens."

as for future generations. When these were taken by others, Indian nations experienced a loss, not onlyin terms of immediate well being, but with respect to future benefit from this accumulated capital (lands& resources and the ability to use them for long term security).

One of the ways colonization has been camouflaged is through creative bookkeeping - a changing ofthe accounts. Provincial and federal governments hid the losses to Indian nations by taking them off ofthe account books and ignoring the presence (and stake) of Indian people in the overall economy. Indian nations' equity in their lands, waters, and resources was erased from the account books.

So for instance, the potential losses to a Band from clearcutting are not balanced against the benefitsthat go to the timber companies or the provincial government. Or the loss of the Indian commercialfishery and the devastation of fish stocks are not balanced against the benefits to settlers and fishcompanies. Or the costs related to the destruction of Indian political and social institutions have notbeen balanced against the benefits that went to non-Indian governments and economies.

This activity was coupled with the assertion of settler's legislative control over the flow of goods andservices, and the imposition of rules to govern the accumulation of capital, the allocation of interests inlands and resources for revenue generation, and the redistribution of accumulated wealth.

Over time, Indian nations were denied access to their lands & resources, their economies weredisplaced for the benefit of others, and their social and political institutions came under attack. Withoutany recognized stake in their traditional lands and resources, Indian nations have not received a justreturn on the revenues that these lands and resources have generated - while at the same time they havebeen forced to suffer the loss.79

4.7.2. The "Burden" of Indian "Administration".

Since the costs of maintaining or developing Indian societies have been separated from the revenuesthat come from their lands and resources, "Indians" have come to be regarded as a "burden" to be"administered". The provinces have taken off with the resources (and in many cases squandered them),leaving Canada to pay for this "burden" of Indian dependency, first through the "land cession" treaties,then the surrender & sale of reserve lands and assets, later through relief, and most recently, throughprograms of social and economic "assistance".

Today, administering the "Indian burden" has become an industry for governments and their various


80 See Practicle Points supra.: pp. 8; also pp. 7, 9.

81 Ibid.: pp. 11-12.

82 Ibid.: p. 12.

agencies, and a way of life for bureaucrats. Perhaps not surprisingly, the social and economic"development" programs introduced over the past 30 or 40 years have not improved the situation. They have made it worse, partly by focusing on maintenance (welfare) instead of development(economic renewal), but also because the biggest part of the solution - restoring the land & resourcebase of Indian nations - has not even seriously been on the table.

4.7.3. The Result of Dependency.

Today, most institutions of Indian government are largely if not totally dependent on federal transfers fortheir operations. These transfers are subject to policy and bureaucratic whim, and onerous terms &conditions. They do not enjoy long term security or consistency. They do not even come close tomeeting Mi'kmaq needs or expectations.

This situation has brought about significant distortions, both within the Indian nations and in relationsbetween the Indian nations and the Crown. Accountability for revenues and expenditures finds itssource with federal bureaucrats and not the Indian nations themselves: "External dependence [for funds]makes governments more responsive to their foreign creditors than they are to their own citizens."80

Renewing federal financial assistance from year to year requires a considerable amount ofpaperwork and lobbying, resulting in the growth of heavy Band bureaucracies devoted toclerical work and accounting, rather than governance. The discretionary, unpredictablecharacter of Federal financial assistance frustrates any long-term planning or long range capitaldevelopment; while subjecting Bands to fluctuating Federal social policies.... Priority is given toshort-term welfare and employment programs.... [This]... can maintain the relationship betweenFederal bureaucrats and Band officials indefinitely.81

Devolution and the transfer of administrative responsibilities to First Nations appear to be perpetuatingthis situation. Bands (or aggregate entities) become "responsible" for the administration of a service,and must assume the administrative costs, but without enough resources to meet actual needs, and oftenwith less than Canada spent to do the same job. As a consequence, "Bands remain dependent, whilefederal costs and liability are minimized".82 And yet, the accountability loop still leads back to thebureaucrats, and Band members continue to find themselves outside of the accountability equation.

At the same time, these circumstances allow other governments to play politics with resources, giving


83 See "Presentation to the AFN on 1995-96 Expenditures for Aboriginal People" (DIAND, March 1, 1995);and "Minister Irwin announces results of DIAND Program Review" (DIAND, 27 February 1995).

some to one organization, less to another, and none to others - all of which can serve to aggravateinternal relations within a nation, or relations between First Nation organizations. In this way, a smallpot of money is divided up into such small portions that no one can get the job done, and potentialeconomies of scale are lost in the subsequent political in-fighting.

4.7.4. "Program Dollars" vs. Real Money.

The result of all of this is that today when self government or First Nation control is discussed withCanada, the agenda is focused on transfer of "existing dollars" related to the administration of thisdependency as it is currently organized. The reason for today's dependency - or the ways and meansof beating this dependency - are not even matters for discussion. The very fact that negotiations seemto begin at such a low benchmark indicates the degree to which Indian people and their governmentshave been marginalized and disenfranchised.

This reality is not likely to change in the immediate future. DIAND's budget did not experience themassive cuts faced by other federal departments as a result of the 1995-96 budget, and in fact it is setto grow marginally over the next three years: 6% in 1995-96, and 3% in 1996-97 and 1997-98.83

But these increases are too small to keep up with growing needs in areas like housing and education. As a result, funding levels for these programs will either be capped, or monies will be chopped fromother DIAND program areas to make up the difference. At the same time, there are rumours thatmassive cuts will be made over the next two years in other Departments which have provided servicesand funds to First Nations (ie., the Medical Services Branch - non-insured health benefits).

A renewal of Indian government and society will require the restoration of capital to ensure long termsecurity for the nation. It will also require a recognition of the Indian nations' right to be a significantplayer in managing - and benefitting from - the myriad of transactions that make up the economy.

This involves far more than existing program dollars. It means revisiting the original relationship thatwas established between the Indian nations and the Europeans, both inside and outside of the treaties,and re-writing today's rules so that they recognize Indian nations' equity in the lands & resources oftheir territory.

There are at least three angles to this discussion, and each requires research and analysis. Briefly, theyare as follows:


4.7.4.1. Existing Expenditures.

What are existing expenditures - not just "program" budgets, but transfer, administrative, capital coststo the federal government, etc.? What about federal transfers to the provincial government for health,education, policing, other matters which touch on Indian people or governments? What aboutexpenditures from the provincial treasury? As mentioned above, current methods employed by federaland provincial governments (when they are employed at all) do not accurately identify the full extent ofcurrent expenditures related to the "administration" of "Indians". As well, in negotiations officials oftentry to "hide" actual expenditures so that they can demonstrate that they have obtained a "savings" to thetreasury as a byproduct of such negotiations. For these reasons, accurate means of establishing exactlywhat current expenditure levels are will be important for any negotiation.

4.7.4.2. Revenues.

What is the revenue base that we are talking about? Canada collects a variety of taxes from BritishColumbians - for itself, and in the case of income tax, on behalf of the provincial government. Thereare also equalization payments which go to the provinces from the central government. In the case ofB.C., which is a net revenue generator, the prevailing scheme of equalization payments means thatIndian lands and resources are subsidizing the "have not" provinces at the same time that the province isplaying Scrooge with the Indian nations. There are also provincial taxes, fees and royalties whichrepresent a significant sum.

4.7.4.3. Needs.

Other governments will always try and limit fiscal negotiations to "existing budgets". But what about theforecasted costs of actually meeting needs? What are the fiscal needs of the Indian nations in B.C.? Capital works? Programs and services? Governing? Social and economic development? etc. etc. Also, what will be the projected costs of development & implementation of self government (this shouldinclude training needs and one-time implementation costs)?

4.7.5. Personnel and Bureaucratic Dynamics in Ottawa.

In the Minister's office, Irwin's Executive Assistance Brad Morse and Special Assistant Ron Frenchhold responsibility for self government - the remnants of CBSG and the Cabinet submission on theinherent right. However it appears that there are not clear or consistent linkages between them andthe bureaucracy.

With respect to the bureaucratic apparatus, the Intergovernmental Affairs sector of DIAND - set upafter the Tories' 1991 reorganization of the department - has been disbanded and dispersed. "SelfGovernment" now resides in at least two different branches of the Department.


The operational side is in the First Nations Relations Directorate, part of the Claims and IndianGovernment sector under ADM John Sinclair. The Director of the Directorate is Kerry Kipping. Hisshop deals with CBSG negotiations and implementation, as well as carrying out some developmentalwork on the inherent right.

The policy side sits in the Policy and Strategic Direction sector, under ADM Jack Stagg. George DaPont is the Director General, Government Relations Branch. Both Stagg and Da Pont are directlyinvolved in policy development - the inherent right as well as what-to-do-with-CBSG. Other parts ofthe Strategic Direction sector also dealing with aspects of self government issue are the Federal-Provincial Territorial and Constitution Directorate (Alison Mortimer, A/Director) and the LegislativeInitiatives Directorate (Doug Kane, Director).

At the Department of Justice, Fred Caron carries the self government file. At the Privy Council Office,it is Mark Lafreniere (once at OACA).[Note from Peter Di Gangi, June 12, 2002 - Fred Caron isnow at the Privy Council Office, and Mark Lafreniere is now Deputy Minister at Indian Affairs.]

One of the observations made in DIAND's 1993 audit of the CBSG program was that there was little ifany coordination within DIAND on self government matters, let alone wider coordination with otherfederal departments or provincial governments. It appears that this situation remains the case, althoughsome improvements have been made.

The federal Liberal's proposed policy framework calls for the establishment of an InterdepartmentalSteering Committee on Self Government which apparently will hold a significant mandate with respectto the issues at hand. This body should probably be directly targeted in any followup related to selfgovernment.


Bibliography.

Practicle Points for Discussing a Framework for a Mi'kmaq Constitution (UNSI, 1994).

Federal Program Assessment & Review: Buffalo Jump II? (Peter DiGangi for the Union of B.C.Indian Chiefs, Vancouver, November 1994).

Crown-First Nation Intergovernmental Relations: Politics, Policy and Bureaucracies (PeterDiGangi, revised version, February 1995).

Nation to Nation: Crown-Indian Relations (Thalassa Research, Vancouver, 1 December, 1994, forthe Royal Commission on Aboriginal Peoples).

Bilateral Discussions - Examples and Considerations (Peter DiGangi for UNSI, 5 October 1993).

Audit of Community Based Self-Government Program (DIAND Audit Branch, Ottawa, February1993).

Creating Opportunity - The Liberal Plan for Canada (Liberal Party of Canada, Ottawa, 1993)

Notes prepared by AFN of Minister Irwin's Speaking notes on the "Inherent Rights" Policy(AFN, from meeting of Alberta Chiefs, 16 March 1995).

"Draft Policy Framework for Implementation of the Inherent Right and the Negotiation of SelfGovernment" (Annex "A" to draft MC, DIAND, spring 1995).

Minister Irwin announces results of DIAND Program Review (DIAND Press release, 27 February1995).

Presentation to the AFN on 1995-96 Expenditures for Aboriginal People (DIAND, 1 March1995).


84 These points are taken from Bilateral Discussions - Examples and Considerations (PeterDiGangi for UNSI, 5 October 1993): pp. 5-9.

Appendix #1: Evaluation Criteria for Bilateral Relations.84

EVALUATION CRITERIA

During the late 1980's, the AFN's Centre for Treaty Advocacy reviewed the literature and identifiedfive criteria for measuring the ability of a bilateral process to produce results. A quick review of thesecriteria is a useful starting point for this discussion.

Political Authority:

An early signal of the parties' commitment to a process can be found in the authority under which theforum is set up, and the authority of those who are designated to represent the parties themselves. Acase in point is the Joint Canada-First Nation Working Group on Claims policy (JWG). Set up in thewake of Oka, the Chiefs had high expectations - senior political leadership was designated to representthe AFN, with direct access to the national executive and the National Chief. On the other hand,federal representatives to the working group were only middle level bureaucrats who had no authorityto actually change policy, and no direct links to senior Ministers and Cabinet. It should not come as asurprise, then, that the JWG process has not resulted in substantive changes to the claims policy -Canada was not prepared to put senior policy makers on the case.

Equitable Forum:

A forum that recognizes the principle of equality between the parties will allow each to introduce issuesand agenda items, and prevent one party from refusing to discuss them on policy or other grounds. Again, to use the JWG as an example - in December 1990, the Chiefs made it clear that they wanted todiscuss claims generally - "specific", "comprehensive", and Treaty based. This approach was dismissedout of hand by then Minister Siddon in January 1991, who insisted that his government's policies woulddictate the nature and scope of the issues to be discussed.

Effectiveness:

Is the forum able to produce results and encourage meaningful progress on the issues in a timelymanner? There are many processes which have turned out to be no more than that - processes -intended by other governments to expend energy and time without producing concrete results.

Comprehensiveness:


Can the forum provide an opportunity to deal with issues holistically, without being restricted by othergovernment's policies or the division of responsibilities among Ministries? Many issues of importance tothe First Nations cut across Ministerial responsibilities and policy mandates. Will the processaccommodate the need to look at issues and solutions comprehensively?

Flexibility:

Circumstances and priorities can change over time and issues can come up which require immediateattention. Flexibility allows for the opportunity to respond to these changes as required in terms ofstructure, process or agenda.

SITUATIONAL FACTORS

There are other factors which aren't necessarily tied to the structure of the process that can also affectoutcomes. They are present in different combinations in each region and province, and will act toinfluence any intergovernmental discussions which are intended to address substantive change.

* Cohesiveness of the First Nations: Can or will they work together to keep the provinceon track - at the provincial level, the level of the Nation, or the community level?

* Leverage: Do the First Nations have access to the levers which may act as an incentivefor serious provincial commitment? ie., strong legal basis; ability to impede resourcedevelopment; strong community participation and confidence.

* Fiscal resources: Is there money to support the process itself (negotiations,development & consultations for the First Nations and government)? Are thereadequate resources to support implementation?

* Good faith and partisan politics: The philosophies and policies of the government inpower often determine whether or not they intend to be serious. Good faith is in shortsupply and cannot necessarily be assumed.

* Public perceptions and opinion: Governments are intent on getting re-elected. Notoften will they do things which their voters clearly do not agree with.

* Technical expertise: Without competent officials, governments may be unable to copewith the implications of a bilateral process - at the level of negotiation or when it comestime for implementation.

Trojan Buffalo Program Assessment 1995

Documents

Transcript of Trojan Buffalo Program Assessment 1995