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" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2.1. Cabinet Submission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2.2. Federal Policy Directions on the Inherent Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2.2.1. Preconditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2.2.2. What does s. 35 cover with respect to the inherent right? . . . . . . . . . . . . . . . 5 2.2.3. Section 35 Remains an Empty Box . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2.2.4. What is on the Table for Negotiation? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 2.2.4.1. "Existing Inherent Rights" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 2.2.4.2. Federal Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2.2.4.3. Non-Negotiable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 2.2.4.4. Provincial Headings of Authority . . . . . . . . . . . . . . . . . . . . . . . . . . 10 2.2.5. Litigation vs. Negotiation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 2.2.6. Mechanisms for Implementing Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . 12 2.2.6.1. Treaties and the Inherent Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 2.2.6.2. Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 2.2.6.3. Other Mechanisms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

2.2.7. The Fiduciary and Trust Obligations of the Crown . . . . . . . . . . . . . . . 14 2.2.8. Negotiation Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 2.2.8.1. Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 2.2.8.2. Tripartite Forums, Third Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 2.2.8.3. Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 2.2.8.4. Transition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 2.2.9. The Role of the Provinces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 2.2.10. Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 2.2.10.1. Financial Responsibility and Control . . . . . . . . . . . . . . . . . . . . . . . 19 2.2.10.2. Maintain Existing Expenditure Levels . . . . . . . . . . . . . . . . . . . . . . 20 2.2.10.3. Taxation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 2.2.12. Off Reserve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 2.2.13. Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 2.2.14. Approvals and Ratification of Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . 24 2.2.14.1. Federal Coordination of Negotiations . . . . . . . . . . . . . . . . . . . . . 24 2.2.14.2. Ratifying Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 2.3. Conclusions re: Liberal Policy on the Inherent Right . . . . . . . . . . . . . . . . . . . . 25 3. FEDERAL POLICY INITIATIVES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 3.1. Devolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

3.2. On and Off Reserve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 3.3. "Pilot Projects" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 3.4. Community Based Self Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 3.4.1. A Specific Example . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 3.4.2. CBSG and Inherent Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 3.5. Legislative Alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 3.6. Federal Talk vs. Federal Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 4. AUTHENTIC GOVERNMENT TO GOVERNMENT RELATIONS . . . . . . . . . . . . . . . . . . . 31 4.1. The Character of DIAND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 4.2. Internal (Dis)Organization at DIAND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 4.3. Placement of DIAND within the Federal Government . . . . . . . . . . . . . . . . . . . . . . . . . 34 4.4. The Bureaucracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 4.5. Compartmentalism vs. Holism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 4.6. Criteria for Measuring an Effective Negotiation Process . . . . . . . . . . . . . . . . . . . . . . . . 39 4.7. Financing Self Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 4.7.1. Changing the Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 4.7.2. The "Burden" of Indian "Administration" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 4.7.3. The Result of Dependency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 4.7.4. "Program Dollars" vs. Real Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 4.7.4.1. Existing Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 4.7.4.2. Revenues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 4.7.4.3. 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 variety of factors. There are other forces at work which stand to impact on Indian initiatives in this area, and they need to be considered in connection with Indian nation's objectives and priorities. This brief is intended to provide a situational analysis of some of these factors. Below, we will investigate and provide observations on four key areas: * National currents - structural change and fiscal restraint. These are trends which are bringing about changes in the balance of power and the relationships between all levels of government in Canada. Federal policy on the "Inherent Right". The directions in which the federal Liberals are headed with respect to self government are now clear. Certainly these will have a major 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 and programs. 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 the culture of the bureaucracy. These factors need to be considered at least as carefully as the policy itself, since they preceded it, and will surely survive the demise or rise of any particular 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 government is the fundamental structural change now taking place in Canada and globally. After years of failed efforts at constitutional reform, events are forcing federal and provincial governments in Canada to reinvent their role and function without constitutional amendment. The results will be as far reaching as what was proposed under Meech Lake or the Charlottetown Accord, but without the trappings of public meetings and referendums. This change has two distinct but related elements.

Trojan Buffalo - A Situational Analysis.

The first involves a realignment of federal, provincial and municipal jurisdictions, responsibilities, and activities. Generally speaking, the federal government's presence will become smaller, and the provinces and their subsidiary governments will be left to fill the gaps. The second involves fiscal policy, and revolves around "corrective measures": deficit reduction, cost cutting, and off loading. Canada and the provinces are engaged in a struggle to maintain or increase their share of a shrinking fiscal pie. In fact, the federal government-wide Program Review which took place during 1994 and its impact on the February 1995 budget indicates that this process is already well underway. 1 The criteria for the Program Review were essentially financial (how to trim existing budgets) and structural (how to shrink the responsibilities, role and size of the federal government). Already, many federal departments have taken major cuts, and transfer payments to the provinces will see significant reductions. This is a process 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 governments jockey for position, there exists the distinct possibility that once again, Indian nations will be shut out of substantive involvement, and left to pick up the leftovers once the other levels of government have carved 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 and influential 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 plan set. 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 nations might best position themselves to deal with what is coming. If Indian nations do not act to define their jurisdictional sphere and occupy the field to their best advantage, events may well overtake them.

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

Trojan Buffalo - A Situational Analysis.

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 the inherent 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 and provincial 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 are prepared to connect it in some way to s.35, this is not to say that they share the same vision as the First Nations. 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 with the 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 and regionally, although there was no formal process or systematic canvassing of opinion. There is no indication that First Nation leadership had any substantive role in shaping the policy itself. In fact, the leaders of the four national aboriginal organizations have written to Prime Minister Chretien, calling DIAND's development of the draft policy "unilateral", and rejecting Minister Irwin's "vest pocket consultations". 3 At this point in time, the content and form of the submission to Cabinet is essentially complete. In late April parts of the current draft Memorandum to Cabinet (MC) were leaked and by now has received wide distribution.4 On May 8th 1995 Minister Irwin informed National Chief Ovide Mercredi that the policy would be reviewed by Cabinet by the end of May. Earlier, the Minister had made it clear that he would not return to cabinet on the inherent right until he felt that his proposals enjoyed broad based support among his Cabinet colleagues. It appears that he feels this support is now present. But there are other

"Creating Opportunity - The Liberal Plan for Canada" (Liberal Party of Canada, Ottawa, 1993): p. 98. Ottawa Citizen, "Native leaders want Irwin to release secret document", p. A4, 13 May 1995.

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

Trojan Buffalo - A Situational Analysis.

practical imperatives behind the push to have Cabinet approve the policy framework soon: DIAND's authority for particular initiatives (ie., Community Based Self Government - see below) has expired, and a 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, and how should its recognition and implementation be managed? The recently leaked portion of the MC on self government, along with related documents and other hints which have been dropped, provide an indication 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 earlier attempts at seeking support for the principle of the inherent right. This resistance remains present not only 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 to contain 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 of the inherent right, and their intentions. This is not to say that discussions with Canada pursuant to the proposed 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-reserve Indian organizations that now exist, or may come into existence. By lumping the unique circumstances and particular legal and historical rights of Indian nations in with other "Aboriginal people", the policy succeeds in lowering the ceiling of what is on the table for negotiation, 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 federal government has laid out. These are that: * First Nations must operate "within the framework of the Constitution.... in harmony with jurisdictions that are exercised by other governments". This will require "a harmonious

Trojan Buffalo - A Situational Analysis. relationship of laws". 5 * The inherent right does not, in Canada's view, include "the right of sovereignty in the international law sense". 6 Self government agreements and treaties must contain a provision allowing for the application of the Charter of Rights & Freedoms to aboriginal governments.7 The reference to treaties would seem to apply to future treaties. "As a general rule.... agreements will not deviate from the basic principle that federal and provincial laws of an overriding national or regional importance will take priority over Aboriginal laws."8 This sounds like the POGG - peace, order & good government - requirement that was included in the Charlottetown Accord. Federal and provincial laws cannot be automatically displaced by the introduction of a First Nation law - federal and/or provincial laws may continue or coexist, depending on the outcome of negotiations.9

The policy framework states that in the absence of agreement between the parties with respect to the nature and scope of the inherent right, "definitive pronouncements by the federal government on the meaning of the inherent right are unlikely to advance the implementation of self government". 10 This gives 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 reviewed below, 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?

Annex A #8. Ibid. #10. Ibid. #9. Ibid. #12. Ibid. #11. Ibid. #3.

10

Trojan Buffalo - A Situational Analysis. Although the Liberal government says that it recognizes the inherent right to self government as an existing right covered by s. 35 of the Constitution Act, 1982, this recognition is qualified and constrained 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. By implication, 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 some Crown lands, where provincial consent is obtained. Although these are the rights which Canada appears ready to accept as inherent rights already protected by s. 35, their actual nature and scope, and their specific application to a particular Indian Nation, 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 some cases provincial) agreement. This is certainly a case where Canada has taken the terminology and made it mean what it was never intended to mean: they say inherent, but what they are talking about is wholly contingent. The implications 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

11

Draft Policy p. 15. Ibid. #2.

12

Trojan Buffalo - A Situational Analysis. 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 self government rights will be subject to negotiations with Canada and (in many cases) the provinces, and contingent upon their consent.

In this respect, s.35 remains an "empty box", which can only be filled with the inherent rights that federal and provincial governments choose to recognize. This is essentially the same scenario envisaged in 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 their policy 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 and integral to aboriginal culture and identity, as well as those which relate to the management of reserve lands. Consistent with this approach, the items which can be negotiated under this heading are those that 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 the type normally created by local governments for contravention of their laws" [emphasis added]; policing. "Transfer and management of monies and group assets".

13

Annex A #19.

Trojan Buffalo - A Situational Analysis. -Licensing, regulation & operation of businesses "located on Aboriginal lands" (ie., onreserve). -"Management of local and community public works and infrastructure", housing. -On reserve lands management: zoning, service fees, land tenure and access; property management (succession and estates); "expropriation of Aboriginal lands [ie., reserve lands] for local group purposes"; natural resource management & agriculture. -On reserve harvesting: hunting, fishing and trapping. (probably off reserve too, subject to agreement with provinces). Given the size of most reserves in British Columbia, some of these items (ie., natural resource management, agriculture, harvesting) are of limited use unless they are accompanied by an increased land base. Significantly, the policy framework does not deal with the question of additional lands for First 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 and off reserve/non-status) who do not reside on established reserve lands (although within very limited confines, 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 devolution processes or sectoral initiatives (see below re: devolution, alternatives to the Indian Act, etc.). In this sense, what is now being offered under the cloak of inherent rights has already been on offer for some time. 2.2.4.2. Federal Delegation. There are other subject areas which, in Canada's view, "may go beyond matters that are integral to Aboriginal culture", but where Canada is willing to negotiate agreements on a tripartite basis "to enable Aboriginal 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 would always remain with the federal government. The exercise of Aboriginal jurisdiction or authority in these areas could therefore not be inconsistent with federal laws.
14

Annex A #21.

15

Ibid. #20.

Trojan Buffalo - A Situational Analysis. The subject areas under this category include: -Taxation powers: The power to tax is not considered by Canada to be inherent in character, even though it is clear that the redistribution of wealth and the stewardship of resources for collective benefit have always been a part of indigenous societies. This has major implications when considered along with other aspects of the draft policy framework that call on Aboriginal governments to raise their own revenues, or which allow that the regulation of commerce on reserve is inherent. The position taken by Canada assumes that First Nation governments do not possess tax immunity or the authority to use taxation as a means of achieving social and economic policy objectives, even though these powers are clearly accepted as essential components of existing provincial and federal headings of power. In this sense, for Indian nations, the inherent right means less than what other governments take for granted. -Labour law. -Divorce law: Although Canada seems prepared to concede that marriage comes under the inherent right, divorce does not. -The administration of justice; penitentiaries and parole. -Aspects of environmental protection and assessment and pollution control: This is significant, since reserve lands, being federal, are subject to federal Environmental Assessment Guidelines and the Canadian Environmental Protection Act. Canada's willingness to recognize land management as inherent will not, therefore, necessarily remove federal laws or authority from reserve lands. -Fisheries co-management: This would seem to be a major concern, given current events 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

Trojan Buffalo - A Situational Analysis. 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 exercise power in these areas, which cannot be characterized as either integral to Aboriginal cultures, or internal to Aboriginal groups" [emphasis added]

10

For some of the headings listed below, however, this reasoning seems quite arbitrary, particularly given the fact that upon contact with the Europeans, Indian nations' treaty making powers and control over the 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 both sides of the USA-Canada border suggests that this movement of Indian people is in fact integral to the culture and practises of particular nations. (ii) Other "National Interest Powers": -Management and regulation of the national economy, including "regulation of the national business framework", fiscal and monetary policy, currency, the banking system, trade and competition policy, bankruptcy and insolvency; intellectual property, and the incorporation of federal corporations. -"maintenance of national law and order and substantive criminal law", including Criminal Code offenses and penalties and "other criminal laws", as well as emergencies and the peace, order and good government power. -"Protection of health and safety of all Canadians".

16

Annex A #24.

Trojan Buffalo - A Situational Analysis. -"Federal undertakings and other powers", including broadcasting and telecommunications, aeronautics, navigation & shipping, transportation, postal service, census and statistics. 2.2.4.4. Provincial Headings of Authority.

11

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 with in any detail in the draft policy framework. This silence should not be interpreted to mean that provincial governments will not also have their own lists of "negotiable" and "non-negotiable" items from their own menu of constitutional headings of power.

It can be expected that any First Nation jurisdiction off reserve (ie., harvesting, lands and resources, off reserve 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 of the 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 because of time and cost factors, and because the courts are most likely to provide only general guidance and leave it to the parties to work out detailed arrangements for the exercise of 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 if litigation is pursued, Canada will take a harder line on the nature and scope of the inherent right than what is offered through its policy.18 Although in court Canada "would not deny the general proposition that the inherent right of self government is an existing right within Section 35", it would argue for case by case review based on circumstances particular to the First Nation: In individual cases consideration would be given... to the particular history of an

17 18

Annex A : #4, 5. Annex A , #16, 17.

Trojan Buffalo - A Situational Analysis. Aboriginal group, and its relationship, if any, to an existing land base.19

12

To mitigate against the possibility of litigation after agreements have been signed, Canada suggests that the agreements ... may establish rules of priority to govern conflicts between validly enacted Aboriginal laws and federal or provincial laws and may provide for paramountcy of Aboriginal laws in areas that are purely internal to an Aboriginal community and integral to its 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 this will not be left up to the First Nations. In cases where such rules of priority have not been established, Canada suggests that conflicts may be resolved by applying part of the Sparrow analysis: ... federal and provincial laws that interfere with the exercise of the inherent right as expressed in validly enacted Aboriginal laws or other executive actions would likely have to be justified. At a minimum, federal and provincial laws of an overriding national or 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 placating provincial 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 self government 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

19

Annex A , #16. Annex A , #12. Annex A #13.

20

21

Trojan Buffalo - A Situational Analysis.

13

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 wishes to 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, particularly since many aspects of the policy framework challenge, or are inconsistent with, the terms of existing treaties between Indian nations and the Crown. Canada promises that existing Aboriginal and treaty rights "will be respected", and also that it will continue to "fulfil its statutory and treaty obligations". 23 Given current federal conduct related to the treaties (ie., fisheries litigation), it is difficult to see how these promises can be kept without first coming to 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, whether as an extension of existing treaties or as new initiatives. Canada will "consider protecting rights negotiated in self government agreements as Section 35 treaty rights or as part of comprehensive land claim agreements". 24 On the one hand this is characterized as "a continuation of the historic relationship between 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 agreements receive s.35 protection. The policy framework provides reasons why Canada feels that provincial consent is necessary. If the provinces were to challenge a s.35 agreement, the courts may find that self government "is not a proper subject for Section 35 treaties" since it could alter the constitutional division of powers while circumventing the amending formula.25 The courts may also see such agreements as going beyond the scope 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, should provincial consent be obtained: "the primary criteria for inclusion of a matter in a treaty should be

22 23

Annex A : #42-43. Ibid. #44. Annex A #35. Annex A #36.

24

25

Trojan Buffalo - A Situational Analysis. 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 relationship of Aboriginal laws to federal and provincial laws"; -the geographic area where jurisdiction will be exercised, and the people to whom it will apply; and -accountability mechanisms with respect to the internal operation of the "Aboriginal government", "in order to establish its legitimacy and the legitimacy of its laws within the Constitution of Canada". Given the uncertainty revolving around the terms of many existing treaties, Canada says that new treaties should be precise to avoid ambiguity.

14

2.2.6.2. Legislation. The policy framework suggests that legislation (presumably federal and in some cases provincial) can be 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; to implement particular provisions of treaties, or "to act as a backstop in the event a treaty is struck down". In the latter case, legislation could be used as a "stand alone mechanism" to provide self governing 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 most part, 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 inevitably negative. The role and nature of federal legislation and its connection to Indian self government initiatives needs to be carefully considered in more detail.

26

Annex A #37. Annex A #39.

27

Trojan Buffalo - A Situational Analysis. 2.2.6.3. Other Mechanisms. "Legally enforceable contracts" may be used to set out detailed or technical arrangements relating to implementation of agreements, whether or not they deal with inherent rights.28 Memorandums of Understanding - which are not legally enforceable - can also be used for setting out "political commitments" or other matters which the parties do not want to be the subject of litigation.29

15

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 its fiduciary obligations will diminish as First Nations take on "increased jurisdiction or authority, and responsibility 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 that remain 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 a shared 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 the Crown's fiduciary duty be applied to its conduct during self government negotiations? What impact does the Crown's fiduciary duty have on the level of resourcing for self government institutions, or with respect to meeting First Nation needs? Predictably, none of these matters are raised in the policy framework. 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 of implementing the inherent right."31 Canada will not respond favourably to unilateral assertions of authority by First Nations. Canada says that "diversity and flexibility will be key features" of negotiated self government

28 29

Ibid. #40. Ibid. #41. Annex A #45-46. Annex A #5.

30

31

Trojan Buffalo - A Situational Analysis.

16

agreements, taking into account the different "political, economic, legal, historical, cultural and social circumstances". 32 What this appears to mean is that Canada may be prepared to show some flexibility if 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 to group", it should also be noted that the "diversity and flexibility" referred to will only occur within the confines of the policy framework itself. This will allow Canada to impose consistent limits on what can and cannot be negotiated in each particular negotiation without the bother of having to deal with national First 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 scale will be significant criteria.33 "Cost effectiveness and efficiency will be key factors guiding the development of negotiation processes." The negotiation of self government will not be supported by additional resources from the federal treasury: monies for negotiations "will come from existing federal resources". 34 At the same time, the provinces 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 the province to discuss processes for negotiation of self government.35 With respect to representation on the Aboriginal side, the policy framework has this to say: It is essential that individuals negotiating on behalf of Aboriginal people have been duly mandated by the group they are representing, and that support is maintained throughout the negotiation process. The onus to resolve any disputes regarding representation within 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

32

Annex A #18.

33

Annex A #66.
Ibid. #73-75. Ibid. #67. Ibid. #81.

34

35

36

Trojan Buffalo - A Situational Analysis. believe if the federal government was not in the habit of intervening in internal matters through funding allocations and decisions to negotiate with particular parties. This is highlighted by the following statement found at the end of Annex A: The Federal Interlocutor for Metis and Non-Status Indians is mandated to enter into negotiations between the federal government and the Metis and off-reserve Indians consistent with this framework.37

17

If Canada is serious about its stated commitment to respect internal representation, then it will need to demonstrate this commitment by withdrawing from any activity that could be seen to intrude on matters related 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 the B.C. Treaty Commission. Does an Indian Act Band or an association incorporated under federal/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 and appropriate". 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 consultation mechanisms for municipalities and third parties that may be directly affected" by negotiations and agreements.39 This seems to imply that Canada's position is that municipalities and third parties will not be 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 of negotiations and once agreements are signed.40 However, given the financial constraints already discussed, these measures will be an additional cost with no additional source of revenue.

37

#93. Ibid #78-80. Ibid. #83. Ibid. #82.

38

39 40

Trojan Buffalo - A Situational Analysis. 2.2.8.4. Transition.

18

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 a sectoral basis, or take a phased approach to the assumption of jurisdiction. 41 The Indian Act will continue 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 Minister Irwin was directed by Cabinet to consult with the provinces before finalizing the self government policy framework seems to indicate that they were given significant influence - if not an outright veto - over its contents. In light of the wide array of Aboriginal jurisdictions or authorities that may be the subject of negotiations, and given their relationship to areas of provincial jurisdiction, it is essential that provincial governments participate in the negotiations and are parties to any related agreements.42 [emphasis added]

There appear to be a number of motivations behind this position. One, of course, is the reality that provincial 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 will necessarily 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 power or 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 First Nations - and therefore its apparent ability to deliver - by playing jurisdictional ping-pong with provincial governments. At the same time, keeping in mind that this policy framework will apply to all "Aboriginal people",

41

Annex A #48-50. Annex A #6. Annex A #36.

42

43

Trojan Buffalo - A Situational Analysis.

19

Canada wants the provinces to pay - particularly with regard to eventual arrangements with the Metis and "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 "double bilateral process" in certain circumstances. This, however, requires clarification. Does Canada mean bilateral discussions between First Nations and the federal government taking place parallel to bilateral discussions between the Federal Government and a particular province. Or does Canada mean negotiations between the Indian nations and the province at one table, and the Indian nations and the federal government at another?44 Only in "very exceptional circumstances" would Canada be prepared to proceed without provincial involvement (ie., if a province refuses to participate). In these cases, the negotiation menu would be narrowed 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 which are the fundamental backdrop to current changes in inter-governmental relations. From this perspective, each province will be assessing the impact of the inherent right in terms of the structural and 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 the provinces, may serve to ally the interests of the provinces and the First Nations (ie., work together to fight federal off-loading). On the other hand, the whole scenario may be enough to scare some provinces off completely, or drive them to taking an even narrower position than Canada on the nature and 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 be one of the most contentious. Canada says that financing self government is "a shared responsibility of federal, provincial, territorial and Aboriginal governments". 47

44 45 46

Ibid. #68. Ibid. #69. Ibid. #70. Annex A #53-59.

47

Trojan Buffalo - A Situational Analysis. 2.2.10.1. Financial Responsibility and Control.

20

Agreements on financing will take the form of tripartite agreements, as well as in some cases bilateral agreements between Canada and the province. Canada "will maintain its position that it has primary but not exclusive responsibility for on-reserve Indians.... while provinces have primary but not exclusive responsibility for other Aboriginal people". This means that the feds will pay most of the costs for onreserve Indians and the Inuit, while the provinces will be expected to pay most of the costs for offreserve Indians and Metis.48 Funding for self government must be affordable and consistent with the social and economic policies and priorities of [federal and provincial] governments. The fiscal and budgetary capacity of the federal, provincial, territorial and Aboriginal governments will be a primary determinant of the financing of self government. This implies that even with "self government", Canada and the provinces will continue to control the purse strings and set priorities. Note that First Nations "needs", or an equitable distribution of overall fiscal 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 "Aboriginal groups" to raise their own revenues, and efficiency & cost-effectiveness. These positions and their implications 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-government agreements will be accommodated within existing federal expenditures". 49 [emphasis added] This position 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, there will be more to do with the same amount of money - so reductions in some areas will have to take place 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

48

Ibid. #65. Annex A #62. Ibid. #62-63.

49

50

Trojan Buffalo - A Situational Analysis. not include any program enrichment"51, while ignoring the fundamental question as to whether or not existing 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 whatever statutory requirements and minimal standards of program & service delivery which may have been agreed upon". This is very similar to the position taken by Canada in its ongoing debate with the provinces about block funding transfer payments (ie., health care, social services and education): overall levels of transfers will be reduced, but provinces will enjoy more flexibility with respect to how they spend the remainder.

21

Canada says that governments should work together to "harmonize funding, program and service arrangements to ensure the efficient and effective use of scarce resources". This appears to mean that duplication of services and funding will be targeted. At the same time, it implies that conformity will be sought 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 to reduce reliance, over time, on transfers from other governments." This point is particularly important in light of the fact that taxation does not appear on Canada's list of inherent rights, but rather on the next level of jurisdictions which remain federal (see above). In addition, recent statements made by Minister Irwin in connection with the Nisga'a land claim negotiations in B.C. raise additional questions - not about First nations collecting tax, but about First Nations paying tax. The provincial government has insisted that a removal of Nisga'a tax exemption is necessary to "sell" the final agreement to the B.C. public. Irwin has responded by stating that removal of 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 should eventually pay taxes back into Canadian society, federal Indian Affairs Minister Ron Irwin said.... [But] taxation should only come when first nations develop solid economic bases.52

51

Ibid. #64. Vancouver Sun, "Treaty deals 'must lead to taxation'", p. 1, 5 May 1995.

52

Trojan Buffalo - A Situational Analysis.

22

Other governments are well aware that the financing of self government and Indian taxation are volatile issues. In this connection, they are certainly not reluctant to rely on public reaction to diminish Indian expectations. At the same time, this approach betrays Canada's supposed commitment to recognition of the inherent right: it is a generally accepted principle in Canada that all governments have a right to tax, and to be immune from tax by other governments. It is also accepted that governments are free to use taxation as a tool in promoting their economic and social policy objectives. Canada's exclusion of taxation from the list of inherent rights which it is prepared to recognize does not appear to allow for this recognition. Rather, it would seem to doom Indian governments to perpetual dependence on other levels of government.

2.2.12. Off Reserve. The on/off reserve issue has been simmering for many years. It has been brought about by the operation of the Indian Act (status, membership, residency), the lack of economic or educational opportunities on-reserve (and therefore migration), and federal policies of off-loading services for nonstatus and/or off-reserve people to the provinces. This situation has been exacerbated by the federal (and in some cases provincial) policy of funding "offreserve" and/or "non-status" political and service organizations, without letting Indian nations themselves first deal with representation and membership issues. Canada's policy framework in some ways appears to continue the sharpening of this divide. On the one hand, it will apply to all "Aboriginal people", and therefore will be available to existing organizations of all shapes and sizes. On the other hand, the Federal Interlocutor for Metis and Non-Status Indians will be responsible for managing the negotiation process as it relates to the Metis and off-reserve/nonstatus organizations, and not DIAND's Minister.

This may however be a shell game, since throughout the draft policy framework, whenever Metis and off-reserve/non-status organizations are mentioned in connection with responsibility and cost, they are connected to the provinces. The federal government maintains its position that provincial governments have primary responsibility for Metis and off-reserve Indians . ..... The federal government is prepared to enter into self-government negotiations at the invitation of Metis and off-reserve Indian people..... provided that the province in question agrees to

Trojan Buffalo - A Situational Analysis. participate.53 In this light, if a province refuses to participate then it is quite likely that no substantive process will emerge.

23

As mentioned above, many of the broad headings of power which Canada says are available for negotiation are "only feasible with a land base" - code for reserve land. The menu offered with respect to the off reserve is therefore limited:54 -Forms of public government: This means no separate institutions of Indian government, but absorption into settler institutions of "public government" - a policy has already 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 of services, possibly on a status blind basis. -The development of institutions providing services (presumably where none already exist). -Other powers where a land base (reserve) is not essential for the exercise of that power. Canada acknowledges that "many Metis and off-reserve groups wish to acquire a land base"55, but this wish 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 "residential purposes" are a responsibility of the provincial governments [emphasis added]. Canada will only consider the possibility of taking responsibility for the provision of lands "if it is deemed necessary and complementary to the management of a federal program or service that is transferred to a Metis or off-reserve Indian group." [emphasis added] This is not to say, however, that the policy framework contains no recognition of the fact that First Nations may have other ideas in mind. Canada does leave the door open for the application of some Indian nation laws and the delivery of some services off-reserve:

53

Annex A #25. Annex A #26. Annex A #28.

54

55

Trojan Buffalo - A Situational Analysis. 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 the Aboriginal government or receive services from its institutions. Such situations would have to be addressed in co-operation with the provinces and Aboriginal groups concerned.56

24

As well, the policy framework contains a qualified federal commitment to enumerate "off reserve people who may be covered by self government arrangements" - so long as it involves provincial participation in 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. In almost all cases, the issue arises in connection with accountability procedures that will be required of the Indian nations. Almost no mention is made of measures to ensure federal accountability to Indian nations, 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 all negotiated agreements. At the same time, agreements will "have to" include provisions which guarantee that "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 "political accountability" to its members. These mechanisms will need to be "transparent" to all, including nonAboriginal 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 be prepared and made available, with mechanisms to ensure "transparency, disclosure and redress". This sounds reasonable. However, on top of this, monies provided by the federal government must be accounted for to satisfy Parliamentary-accountability requirements: "Financial agreements must provide

56

Annex A #22. Annex A #27. Ibid. #23. Ibid. #47. Ibid. #60-61.

57

58

59

60

Trojan Buffalo - A Situational Analysis. for accountability mechanisms to achieve this requirement." This means that, notwithstanding scarce resources, Indian governments will be expected to maintain a two-tier accountability regime.

25

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 to review specific negotiation mandates, agreements-in-principle, carry out an ongoing review of overall federal 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 on particular issues as needed. DIAND's Minister will be responsible for negotiations with "Indians and Inuit", while the Federal Interlocutor for Metis and Non-Status Indians will be responsible for conducting negotiations with the Metis 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 noted above, there is no discussion of what will be considered as an authentic or legitimate self governing entity. On the federal side, approvals will follow a number of steps: Cabinet approval for Agreements-inPrinciple and final Agreements; Finance and Treasury Board approval for fiscal arrangements; Treasury Board approval for implementation plans; and Parliamentary approval (legislation) for self government treaties and implementation measures. The policy framework makes no mention of provincial approvals, but it can be expected that these will be devised by each provincial government in turn.

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

61 62

Ibid. #84-88. Ibid. #89.

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26

At the outset, it should be stated that this assessment of the federal Liberal government's inherent rights policy is based only on a review of a draft submission to Cabinet as well as other indicators and clues which the Liberals have dropped since being elected to office. Nonetheless, there is enough clear evidence to come to some conclusions on how the federal government appears to have decided to approach the issue. Canada appears to be playing a game of charades, using the term inherent rights to describe what are essentially contingent rights. To define the nature and scope of these rights, they are contemplating a series of provincially or regionally based negotiations which - ideally - would result in agreements on the nature of the rights and their implementation and exercise. In all cases, the federal Crown will be a party 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 in the Charlottetown Accord, the main differences being that in this case the negotiations will take place without 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 the same items which have already been on offer for many years, either through devolution, community based 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 been considered - and rejected - in the Charlottetown referendum, as well as a re-packaging of what has already 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 raised First Nation expectations considerably) with the post-election reality that there is still strong resistance to 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 Liberals themselves as a "trial balloon" to gauge the response from First Nations and lower expectations in Indian country. This possibility should not be ruled out, and needs to be considered in any formal response to the proposed policy. All of this is tempered by the different circumstances found in each province. British Columbia, facing an 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 some assistance 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 stated position of many nations, and/or at odds with the Crown's existing commitments pursuant to the treaties

Trojan Buffalo - A Situational Analysis. or its fiduciary and trust obligations.

27

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 of governance are undergoing fundamental structural and fiscal change. There is no doubt that Indian nations 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 are headed. While discussions on the inherent right are proceeding, federal efforts at increasing "First Nation 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 federal self government-related initiatives that stand to affect approaches which Indian nations may want to consider, 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 through the Department of Indian Affairs, the Medical Services Branch, the Solicitor General, etc. The process now underway in Manitoba to dismantle DIAND is perhaps the clearest and most comprehensive expression 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 existing programs and services are relevant or effective in the first place. Rather, negotiations have focused on the transfer of programs and services as they now exist. Similarly, it is narrowly focused on the distribution of existing budgets, apparently without any serious willingness to consider whether or not existing funding levels and formulas come even close to meeting needs. In fact, the theme of fiscal restraint referred to above has become a standard refrain on the part of bureaucrats when budgets or needs are discussed. The end result may be that First Nations are left with 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 with these patterns, and in this respect does not represent a new point of departure.

3.2. On and Off Reserve.

Trojan Buffalo - A Situational Analysis.

28

In the recent past, federal efforts to off load costs and responsibilities have sharpened the administrative divide between "on" and "off" reserve residents. This is reflected in a number of ways, including the off loading of responsibility for "off reserve" services and costs to provincial governments; political dialogue and funding for "off reserve" organizations; and the focus, in many devolution negotiations, to discuss on-reserve services only. The federal Liberal's "new" policy framework continues this practise, by insisting on provincial financial responsibility for off-reserve Indians, and by providing the mandate for self government negotiations with 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 an opportunity 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 treaty implementation and "co-management"; in Alberta oil & gas and "Indian Monies"; in B.C. the Treaty Commission; in the NWT and Yukon, comprehensive claims. Although some of the pilot projects may hold some promise for positive medium term change, they are generally accelerated or expanded versions of what was already happening prior to the Liberal's election. None of them approaches "self government" in comprehensive terms, or reflects the global vision and principles expressed by Indian nations themselves.. Opinion appears to be divided as to whether or not these pilot projects are evidence of serious commitment to "self government", or merely devolution disguised. Regardless, they have succeeded in bringing Canada and the First Nations together - at the regional level - to address matters which demand attention. At the very least, the pilot projects are an opportunity for further dialogue on substantive 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, would provide Minister Irwin with an opportunity to state that at this time there is "no need" to proceed with an inherent rights policy at all. But things have unfolded differently - it now appears clear that the federal strategy has been to pursue its inherent rights policy by consolidating already-existing initiatives and using them as the basis for the inherent rights process. The federal Liberal policy framework for self government provides for sectoral initiatives, consistent with the approach being taken in many of the pilot projects. However, so long as the pilot projects are premised on the transfer of federal authority, and not the recognition of Indian authority, they will

Trojan Buffalo - A Situational Analysis.

29

remain largely an outgrowth of existing devolution policies, and in that respect they will not represent a break 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 of comprehensive "self government" agreements which would then be legislated by Parliament and effectively 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 CBSG program in 1993 which identified serious problems and made 20 recommendations for improving the process.63 With the Liberal government's announcement that it recognized an existing inherent right, there was some confusion within the bureaucracy as to what would happen to the CBSG program. Irwin had said that CBSG was dead, pending a new initiative on the inherent right. However, monies were still appropriated and further direction was not forthcoming from the Minister. Officials proceeded under the existing CBSG guidelines until the fall of 1994, when about half of the negotiating groups had their funding cut off. Those that remained were told that their negotiations were to be considered as "transitional", in the sense that they would converge with recognition and implementation of the inherent right once a policy had been approved by the federal cabinet. They were also told that they had better work hard at reaching final agreements soon or that the axe would fall on them too. However, adequate resources were not provided to meet this new sense of urgency. In one case a Tribal Council took a 75% cut in funding at the same time they were being told to accelerate negotiations and community approvals. As of March 31st 1995, DIAND's authority under the CBSG program expired. A special submission was made to Treasury Board (TB) seeking additional funds to continue negotiations. TB grudgingly provided a three month extension of spending authority to help bridge the negotiations, on the understanding that once Cabinet had approved the new inherent rights policy, CBSG would come under that umbrella.64

63

Audit of Community Based Self-Government Program (DIAND Audit Branch, Ottawa, February 1993). CBSG Briefing, from John Sinclair, ADM DIAND, to Minister Irwin, 21 April 1995.

64

Trojan Buffalo - A Situational Analysis. 3.4.1. A Specific Example.

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An example of the problems currently faced by those groups trying to wrap up CBSG agreements is provided by the United Indian Councils, which represents 9 Chippewa, Mississauga and Potowatomi communities in southern Ontario. They have been involved in CBSG negotiations for close to ten years. A framework agreement with Canada was signed in June 1990 which opened the way to substantive negotiations. Since then a number of subagreements have been signed, covering matters such as governing principles, legal status and capacity, structures of government, elections and public decision making, membership and residency. Other issues such as health and justice have also been the subject of negotiations. Key issues - such as taxation and fiscal relations - remain outstanding. As a part of this process, tripartite negotiations 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 with the Conservative government of Brian Mulroney. These negotiations have been described as difficult but nonetheless, subagreements were being signed - and in most of them, UIC negotiators were able to obtain wording which explicitly or implicitly recognized the inherent right. UIC's expectation was that with the Liberal government publicly committed to recognition of the inherent right, the wording of these agreements would present no problems - the more so since they had 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 various federal departments involved - DIAND, Justice, Human Resources, etc. These departments are pulling their 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 federal government to the UIC Bands. This has particular relevance to one signed subagreement which recognized a Tribal level of government over and above the individual Indian Act Bands who are members of the UIC. The intent was to recognize that the communities collectively have an inherent right to institutions of governance beyond the 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 the position that only Band Councils can exercise an inherent right to self government. This position is at odds with the principle that the right of self determination resides with the collective based on national

Trojan Buffalo - A Situational Analysis. identity: shared culture, language, laws and territory. This turn of events is cause for concern.

31

UIC representatives lament that they are now being offered less than what had already been agreed to by the Tories. At this stage the federal negotiator, when pressed, has not been able to say with certainty whether or not the Minister (or Canada) is actually committed to signing off on a substantive self government agreement with the UIC. Needless to say, none of this has inspired confidence on the part of the communities. One would think that if a new policy truly recognizing the inherent right was soon to be approved by Cabinet, federal negotiators would not be so anxious to back away from commitments that were consistent with recognition of this right. Their experience and the positions taken by Canada would appear to be grounds for concern on the part 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 have been dealing with the same menu items which have now been consolidated in the federal Liberal's policy framework. As well, the requirement for provincial participation in negotiations as a prerequisite for 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 new policy, there would be some grounds for claiming that actual progress had been made. However, the recent 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 under the guise of the "Chiefs Governance Working Group", partly as a response to the fact that the CBSG process 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 Accord and the election of the Liberals, and remain alive. In fact, in Alberta the trust funds and oil & gas initiatives have been reborn as "pilot projects". The policy framework which appears to be the basis of the federal Liberal's approach to self government provides for the continuation of these initiatives under the rubric of sectoral negotiations. 3.6. Federal Talk vs. Federal Action.

Trojan Buffalo - A Situational Analysis.

32

Although the commitment to recognize the inherent right was made with much fanfare, it appears to be having a difficult birth by at least two measures. The first has to do with the Cabinet submission's apparent stall and the role of the provinces in vetting it. The second has to do with the fact that on the level of policy and operations, it is pretty much "business as usual" - the initiatives which formed the cornerstones of Tory Indian policy have been adopted - without much adjustment and apparently without hesitation - by the Liberals. This leads to the possible conclusion that if (when) the inherent rights policy does make it through Cabinet, it will merely signal the consolidation and formalization of existing initiatives and policies related to devolution and the transfer of administrative responsibilities. If this is the case, then the inherent rights 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 identify those 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 legitimate process that will lead to authentic self government. As we have already mentioned in a preceding section, policies and governments come and go, but the organization of government and the culture of the bureaucracy remain surprisingly consistent. Real movement on obtaining authentic government to government relations will involve more than responding to new policies and priorities identified by other governments. It will require changes in the way that other governments are organized around the issues, and how they conduct their relations with Indian nations. A self government process will initiate a long and complicated series of negotiated measures toward giving aboriginal jurisdiction (and the treaties) a substantive reality in terms of Crown-Indian relations and Indian governance. Indeed, an authentic self government process should have the effect of raising Indian concerns from the mere pursuit of claims and the redress of wrongs to the enshrinement of principles and norms that will, over time, alter the relationship between Indian governments and their institutions with the rest of Canada. To facilitate acceptable outcomes, the character of negotiations will have to be enrobed in a new and more positive set of underlying relations between First Nations and their opposite numbers: Indians

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

65

Trojan Buffalo - A Situational Analysis.

33

must no longer be construed as clients and claimants; and their objectives must no longer been seen as threatening or self-serving. By itself, the mere recognition by federal or provincial governments that an inherent right to self government exists does not change anything. To make this commitment real, there is an urgent need to create new kinds of relationships with these governments - relationships that are informed by common purposes and the equality of the partners in the process. A self government negotiation process alone will not guarantee acceptable outcomes for an Indian nation. All factors that may contribute to the success or failure of self government need to be identified and transformed. The existing relationship between Indian nations and the Crown - client/provider, master/servant - needs to be replaced with a substantive intergovernmental relationship. This relationship must recognize Indian government authority (as against other governments) while also guaranteeing Indian government accountability (as between Indian institutions of governance and the Indian people). For this to happen, the institutions that currently exercise power over (or manage relations with) Indian nations need to be reformed. Structural change at the federal level and the transformation of relations between Crown departments and agencies with respect to Crown-Indian relations is as important to the success 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 or institutions. It requires a re-thinking of the way in which the Indian-Crown relationship itself is characterized and conducted. Normally, "Indian Policy" has been mandated by Cabinet but delivered by the Department of Indian Affairs, within the confines of the Indian Act and other federal/provincial legislation, and without reference to treaty or aboriginal rights. This poses a number of significant problems for establishing authentic intergovernmental relations between Indian nations and the federal Crown.66 Some of these are 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 Indian Act - in other words, to maintain the basis of the colonial relationship which brought about the dispossession of Indian nations in the first place. This is what defines DIAND's character and dictates

66

see Ibid.

Trojan Buffalo - A Situational Analysis. what is "possible" or "appropriate" from a departmental point of view. It has bred generations of bureaucrats who carry with them a certain mentality that is essentially self serving and hostile towards any change in that relationship.

34

DIAND's purpose has never been to conduct a government-to-government relationship with the Indian nations. So, when confronted with the notion of self government, DIAND's response has been to box it in, using the status quo as a yard stick. None of this would appear to make DIAND a good candidate 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 or responsiveness to Indian objectives. The Department's own 1993 audit of the CBSG program admitted that DIAND was "involved in a number of policy and program initiatives with possible overlapping and competing jurisdictions"67, and went on to describe how hard it would be to coordinate with other federal departments when DIAND itself found it difficult to "control and coordinate its own jurisdictions". The same audit also noted gaps in command and control between headquarters and each of DIAND's regional offices.68 Two years after the audit's completion, the same problems remain. The result is that effective policy coordination is most often the exception rather than the rule, and that each branch and region operates to legitimize and advance its own perceived interests - interests which rarely coincide with 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 the development 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 the spectrum of issues raised by self government.69 The central decision making roles in the federal government are played by the Department of Finance,

Audit of Community Based Self-Government Program (DIAND Audit Branch, Ottawa, February 1993): see pp. 19; 29; 41.
68

67

CBSG Audit: pp. 17; 26; 28; 30-31; 35. See Crown First Nation Intergov't Relations: pp. 1-6.

69

Trojan Buffalo - A Situational Analysis.

35

the Treasury Board (TB), the Privy Council Office (PCO, which is the cabinet secretariat), and the Prime Minister's Office (PMO). The Department of Finance and TB deal with maintenance of the fiscal framework. The PMO and PCO set the overall policy framework and with that, the priorities for government action and spending overall. As well, with respect to policy matters that affect the Crown's fiduciary, 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 the wheel, usually approaching central agencies for either more money or exemptions from governmentwide policies. A powerful bureaucratic instinct mitigates against the granting of exemptions because of the special interests they foster, the administrative complexities they introduce, and the additional costs they 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 being considered. Institutionally, the federal machinery of government is not organized to deal with Indian issues in a way that reflects their inter-departmental complexity at the level of strategic policy making and program integration. It is certainly not organized in such a way as to encourage the development or negotiation of 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 holding the Indian Affairs portfolio, also sits on the Treasury Board - a key forum when it comes time to influence the allocation of federal dollars and to integrate Indian policy into the broad range of relevant spending decisions. Open to question, however, is whether Minister Irwin has the independent human resources at his disposal to play the kind of proactive role in the TB Secretariat that integrates Indian issues into the considerations 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 be effective 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 with central agencies are required, in effect changing the traditional role of DIAND as the broker and often the sole federal representative in negotiations and policy development.

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

Trojan Buffalo - A Situational Analysis.

36

However, if efforts at establishing more authentic intergovernmental relations between the Crown and Indian nations are to be serious and effective, the status quo must change. Clearly this will be need to be 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 and provides the Minister with independent judgement and intelligence.70 This would improve both DIAND's clout in interdepartmental negotiations and the coordination of policies and programs affecting Indians in all departments and agencies. Any self government process aimed at developing a new and authentic intergovernmental relationship between 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 the primary) federal representative. This requires a realignment of federal organization and accountability as 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 or break 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 directly to the public - ie., tax collections or communications services); policy development and analysis which consists of enunciating the government's goals and objectives in a manner that facilitates the achievement of those goals and objectives through given programs; systems management which ensures that policy is respected, programs are carried out, and that policies and programs cohere properly; and

There is already something similar at the PCO, but it is understaffed and apparently not proactive in advocating Indian rights and interests.
71

70

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

Trojan Buffalo - A Situational Analysis. * program assessment and review, which is intended to determine the effectiveness and reliability of program delivery and systems management.

37

The interaction and coordination between these four areas of activity will naturally affect the quality and consistency of the outcome - within departments and within government overall. Unfortunately, it appears that these four streams of activity are not effectively coordinated within the bureaucracy. This fact has a direct impact on the outcome of proposed negotiations toward self government. Coordination between policy development and program delivery is often absent or poor. "Systems managers" often have little incentive to do anything more than ensure that programs and policies are delivered 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 or mandate, 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 the policy or program actually benefit the recipients or conform to a particular vision? Rather, the program audit and assessment process is focused only on whether or not the terms and conditions of the program or policy itself have been met. The result is that Canadians generally - and Indians specifically - are ill-served by a dull and unresponsive public service, whose officials are more intent on the internal functioning of their departments and programs than on the needs of the recipient groups that they have been mandated to satisfy. Program reviews and audits - as they are currently carried out - are self serving and perpetuate the status quo - they simply do not ask the right questions. At the same time, potential problems should be anticipated with respect to command and control between the bureaucrats in Ottawa and their colleagues in regional office. In B.C. there seems to be ample evidence for this observation. Rogue operators in the regions - working with or without the tacit approval 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 establishment of an authentic intergovernmental relations is the way in which "Indian programs" and policies are developed and administered by the federal government. Many federal programs respecting Indians consist of a transfer of a good or service, rarely of cash and almost never of cash that isn't tied closely to specific terms and conditions. This means that little if any discretionary power over spending is given to Indian governments - even considering recent advances

Trojan Buffalo - A Situational Analysis. re: AFA's and "flexible funding arrangements". Sometimes third parties, like the provinces, receive a financial benefit on behalf of Indians.

38

The complexity of departments, agencies and levels of government involved in "Indian Affairs" is daunting. Four federal departments, including DIAND, are involved in economic development and another 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 in providing for education. Taxation matters are dealt with by Revenue Canada, the Department of Finance, and provincial governments. Legal issues are the territory of the Department of Justice. And so on. With responsibility for "Indian" policy and programs spread across government and between departments, the source of authority and ultimate direction & responsibility becomes obscured. With federal (and provincial) activities compartmentalized to such a degree, accountability - either to the Crown 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, or substantive 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 avoiding issues by playing jurisdictional ping-pong. DIAND's 1993 audit of the CBSG program highlighted the fact that in many cases DIAND's contact and 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 must be established". It also concluded that "There is no strategic approach being taken with other federal departments". 72 In the interim, it appears that not much has changed. Whether it is between departments, or within departments, the tendency toward compartmentalization has erected serious barriers to the prospect of negotiating comprehensive arrangements with respect to Indian 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 passage from a report commissioned by the Royal Commission on Aboriginal Peoples73:

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

72

CBSG Audit: pp. 19; 45. Nation to Nation: Crown-Indian Relations (Thalassa Research, Vancouver, 31 May 1994, for RCAP).

73

Trojan Buffalo - A Situational Analysis. document called Wahbung: Our Tomorrows, which highlighted the same problem.... In developing new methods of response and community involvement, it is imperative that we, both Indian and Government, recognize that economic, social and educational development are synonymous, and thus must be dealt with as a "total" approach rather than in parts. The practise of program development in segments, in isolation between its parts, inhibits if not precludes, effective utilization of all resources in the concentrated effort required to support economic, social and educational advancement.74 Over twenty years later, the Commission has received the same message from those who attended the hearings: All of these along with constitutional reform discussions, protection and implementation of treaty rights through the treaty making process and the legislative change discussions should not be done in isolation of each other since they are all part of a holistic approach to First Nation self-government.75 I also think that in the discussion of self-government and land claims we can include all of these other issues. Any aspect which affects our life, I think, should be dealt with. It is ridiculous to separate items. We have our 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 Dene people are. The Dene people have always maintained a strong relationship with the land and the way they do things. Again, I feel that that is another concentrated effort by a government to break up the way that we live our lives.76

39

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

74

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

to Nation. RCAP Hearings at the Pas, Man. 92/5/20: Chief Harold Turner: pp. 251-52, quoted in Thalassa Research, Nation to Nation.
76 75

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

Trojan Buffalo - A Situational Analysis. great emphasis on a return to holism, at the levels of negotiation, policy and delivery. Clearly this represents a threat to the status quo.

40

This counter-productive set of jurisdictional circumstances, whose complexity mitigates even against the possibility of calculating the costs of the current way of dealing with Indians, must be simplified. Either DIAND should be made responsible for the dealings of Indians with all jurisdictions - and be made accountable for the quality of its representation - or most parts of DIAND should be done away with and replaced with a more central agency that could properly coordinate and be accountable for relations 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 be used as tools to measure the effectiveness of a proposed negotiation process.77 These are enclosed in this 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 heading covers a number of related items, and has proven to be one of the most contentious aspects of discussions 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 generate capital for the players which accumulates over time. Governments have the authority to intervene in this exchange 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 the exchange of goods and services are also things which have been present as key elements in the indigenous economy, before and after contact. 4.7.1. Changing the Accounts. Historically, Indian nations derived interest and benefit from their capital (the lands, waters and resources of the territory). This provided security for the people at any particular point in time as well

77

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

For additional detail, see Nation to Nation: Indian Nation - Crown Relations in Canada (Thalassa Research 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).

78

Trojan Buffalo - A Situational Analysis.

41

as for future generations. When these were taken by others, Indian nations experienced a loss, not only in 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 of the accounts. Provincial and federal governments hid the losses to Indian nations by taking them off of the 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 benefits that go to the timber companies or the provincial government. Or the loss of the Indian commercial fishery and the devastation of fish stocks are not balanced against the benefits to settlers and fish companies. Or the costs related to the destruction of Indian political and social institutions have not been 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 and services, and the imposition of rules to govern the accumulation of capital, the allocation of interests in lands and resources for revenue generation, and the redistribution of accumulated wealth. Over time, Indian nations were denied access to their lands & resources, their economies were displaced for the benefit of others, and their social and political institutions came under attack. Without any recognized stake in their traditional lands and resources, Indian nations have not received a just return on the revenues that these lands and resources have generated - while at the same time they have been 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 revenues that 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, through programs of social and economic "assistance".

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

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 "satisfy the needs and expectations of citizens."

79

Trojan Buffalo - A Situational Analysis. 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 & resource base of Indian nations - has not even seriously been on the table. 4.7.3. The Result of Dependency.

42

Today, most institutions of Indian government are largely if not totally dependent on federal transfers for their 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 to meeting Mi'kmaq needs or expectations. This situation has brought about significant distortions, both within the Indian nations and in relations between the Indian nations and the Crown. Accountability for revenues and expenditures finds its source 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 of paperwork and lobbying, resulting in the growth of heavy Band bureaucracies devoted to clerical work and accounting, rather than governance. The discretionary, unpredictable character of Federal financial assistance frustrates any long-term planning or long range capital development; while subjecting Bands to fluctuating Federal social policies.... Priority is given to short-term welfare and employment programs.... [This]... can maintain the relationship between Federal bureaucrats and Band officials indefinitely.81 Devolution and the transfer of administrative responsibilities to First Nations appear to be perpetuating this 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 often with less than Canada spent to do the same job. As a consequence, "Bands remain dependent, while federal costs and liability are minimized". 82 And yet, the accountability loop still leads back to the bureaucrats, 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

80

See Practicle Points supra.: pp. 8; also pp. 7, 9. Ibid.: pp. 11-12. Ibid.: p. 12.

81

82

Trojan Buffalo - A Situational Analysis. some to one organization, less to another, and none to others - all of which can serve to aggravate internal relations within a nation, or relations between First Nation organizations. In this way, a small pot of money is divided up into such small portions that no one can get the job done, and potential economies of scale are lost in the subsequent political in-fighting.

43

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 with Canada, the agenda is focused on transfer of "existing dollars" related to the administration of this dependency as it is currently organized. The reason for today's dependency - or the ways and means of beating this dependency - are not even matters for discussion. The very fact that negotiations seem to begin at such a low benchmark indicates the degree to which Indian people and their governments have been marginalized and disenfranchised. This reality is not likely to change in the immediate future. DIAND's budget did not experience the massive cuts faced by other federal departments as a result of the 1995-96 budget, and in fact it is set to 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 from other DIAND program areas to make up the difference. At the same time, there are rumours that massive cuts will be made over the next two years in other Departments which have provided services and 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 term security for the nation. It will also require a recognition of the Indian nations' right to be a significant player 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 that was 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 of their territory. There are at least three angles to this discussion, and each requires research and analysis. Briefly, they are as follows:

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).

83

Trojan Buffalo - A Situational Analysis. 4.7.4.1. Existing Expenditures.

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What are existing expenditures - not just "program" budgets, but transfer, administrative, capital costs to 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 about expenditures from the provincial treasury? As mentioned above, current methods employed by federal and provincial governments (when they are employed at all) do not accurately identify the full extent of current expenditures related to the "administration" of "Indians". As well, in negotiations officials often try to "hide" actual expenditures so that they can demonstrate that they have obtained a "savings" to the treasury as a byproduct of such negotiations. For these reasons, accurate means of establishing exactly what 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 British Columbians - for itself, and in the case of income tax, on behalf of the provincial government. There are also equalization payments which go to the provinces from the central government. In the case of B.C., which is a net revenue generator, the prevailing scheme of equalization payments means that Indian lands and resources are subsidizing the "have not" provinces at the same time that the province is playing Scrooge with the Indian nations. There are also provincial taxes, fees and royalties which represent a significant sum. 4.7.4.3. Needs. Other governments will always try and limit fiscal negotiations to "existing budgets". But what about the forecasted 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 should include 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 French hold responsibility for self government - the remnants of CBSG and the Cabinet submission on the inherent right. However it appears that there are not clear or consistent linkages between them and the bureaucracy. With respect to the bureaucratic apparatus, the Intergovernmental Affairs sector of DIAND - set up after the Tories' 1991 reorganization of the department - has been disbanded and dispersed. "Self Government" now resides in at least two different branches of the Department.

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The operational side is in the First Nations Relations Directorate, part of the Claims and Indian Government sector under ADM John Sinclair. The Director of the Directorate is Kerry Kipping. His shop deals with CBSG negotiations and implementation, as well as carrying out some developmental work on the inherent right. The policy side sits in the Policy and Strategic Direction sector, under ADM Jack Stagg. George Da Pont is the Director General, Government Relations Branch. Both Stagg and Da Pont are directly involved in policy development - the inherent right as well as what-to-do-with-CBSG. Other parts of the Strategic Direction sector also dealing with aspects of self government issue are the FederalProvincial Territorial and Constitution Directorate (Alison Mortimer, A/Director) and the Legislative Initiatives 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 is now 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 if any coordination within DIAND on self government matters, let alone wider coordination with other federal departments or provincial governments. It appears that this situation remains the case, although some improvements have been made. The federal Liberal's proposed policy framework calls for the establishment of an Interdepartmental Steering Committee on Self Government which apparently will hold a significant mandate with respect to the issues at hand. This body should probably be directly targeted in any followup related to self government.

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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 (Peter DiGangi, revised version, February 1995). Nation to Nation: Crown-Indian Relations (Thalassa Research, Vancouver, 1 December, 1994, for the 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, February 1993). 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 Self Government" (Annex "A" to draft MC, DIAND, spring 1995). Minister Irwin announces results of DIAND Program Review (DIAND Press release, 27 February 1995). Presentation to the AFN on 1995-96 Expenditures for Aboriginal People (DIAND, 1 March 1995).

Trojan Buffalo - A Situational Analysis. Appendix #1: Evaluation Criteria for Bilateral Relations.84

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EVALUATION CRITERIA During the late 1980's, the AFN's Centre for Treaty Advocacy reviewed the literature and identified five criteria for measuring the ability of a bilateral process to produce results. A quick review of these criteria 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 the forum is set up, and the authority of those who are designated to represent the parties themselves. A case in point is the Joint Canada-First Nation Working Group on Claims policy (JWG). Set up in the wake of Oka, the Chiefs had high expectations - senior political leadership was designated to represent the 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 authority to actually change policy, and no direct links to senior Ministers and Cabinet. It should not come as a surprise, 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 issues and 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 to discuss claims generally - "specific", "comprehensive", and Treaty based. This approach was dismissed out of hand by then Minister Siddon in January 1991, who insisted that his government's policies would dictate 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 timely manner? 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:

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

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Can the forum provide an opportunity to deal with issues holistically, without being restricted by other government's policies or the division of responsibilities among Ministries? Many issues of importance to the First Nations cut across Ministerial responsibilities and policy mandates. Will the process accommodate the need to look at issues and solutions comprehensively? Flexibility: Circumstances and priorities can change over time and issues can come up which require immediate attention. Flexibility allows for the opportunity to respond to these changes as required in terms of structure, process or agenda.

SITUATIONAL FACTORS There are other factors which aren't necessarily tied to the structure of the process that can also affect outcomes. They are present in different combinations in each region and province, and will act to influence any intergovernmental discussions which are intended to address substantive change. * Cohesiveness of the First Nations: Can or will they work together to keep the province on 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 incentive for serious provincial commitment? ie., strong legal basis; ability to impede resource development; 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 there adequate resources to support implementation? Good faith and partisan politics: The philosophies and policies of the government in power often determine whether or not they intend to be serious. Good faith is in short supply and cannot necessarily be assumed. Public perceptions and opinion: Governments are intent on getting re-elected. Not often will they do things which their voters clearly do not agree with. Technical expertise: Without competent officials, governments may be unable to cope with the implications of a bilateral process - at the level of negotiation or when it comes time for implementation.