Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 19 - Evidence, February 9, 1999
OTTAWA, Tuesday, February 9, 1999
The Standing Senate Committee on Aboriginal Peoples met this day at 5:12 p.m. to examine and report upon aboriginal self-government.
Senator Charlie Watt (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we have with us Chief Clarence "Manny" Jules from the Indian Taxation Advisory Board. He has been chairman since 1988. I believe that was the year that the legislation was put forward. Is that right?
Chief Clarence "Manny" Jules, Indian Taxation Advisory Board: The legislation was passed in June of 1988, and I was appointed just after that.
The Chairman: You were appointed by the federal government, by the Minister of Indian Affairs.
Mr. Jules: That is right. I am also Chief of the Kamloops First Nation and a member of the Shuswap Nation.
The Chairman: Is that in British Columbia?
Mr. Jules: Yes. I have been on council since 1974, and I have been chief since 1984. I always like to say I was six feet tall when I first started this and now I am five-foot two.
Senator Mahovlich: You were as big as the Big M!
Mr. Jules: That is what happens.
Senator Mahovlich: Does your tribe go right into the United States?
Mr. Jules: We like to tell the Okanagans that our tribe did. We let them move up a little ways.
I thank the Senate for this opportunity and I will read a brief speech.
In 1988, I appeared before the Senate to speak of the vision and aspirations of First Nations people who at the time were appealing to Canada for an expanded jurisdiction to levy and collect property taxes within the reserve. On June 28, 1988, Bill C-115 was proclaimed by Canada to enable us to assume some of those powers. To assist in the implementation of Bill C-115, the Minister of Indian Affairs created the Indian Taxation Advisory Board, also referred to as ITAB, of which I am the chair. Today, 70 First Nations have obtained tax jurisdiction and have generated some $100 million since 1988. Another 30 First Nations are considering the authority. Over this time, the ITAB has worked to ensure that a fair and equitable tax system has been created that balances taxpayers' interests with First Nations' authority.
In preparation for this meeting, we provided you with a written presentation on the work that we are doing and we will be pleased to respond to any questions that you may have related to the functions of ITAB. After 11 years, it is now time for us once again to address the Senate and put forth our vision for the future. I am pleased to be able to bring forward our proposal for the evolution of ITAB into a successor institution based in statute. The suggested name for the statute-based tax commission is the First Nations Tax Commission.
The FNTC is a natural evolution of the ITAB. The First Nations Tax Commission will be prepared to meet the challenges. The FNTC will be a national First Nations institution that will protect the integrity of the whole First Nations property tax system by balancing interests. This will promote investment on First Nations lands and allow the tax system to generate its maximum returns.
The FNTC will meet those goals by ensuring fairness, stability, and administrative efficiency through the system. It will set sound policies and administrative standards. The FNTC will enhance the investment climate of all First Nations by providing the certainty of stable and fair policies. It will provide the means to avoid most disputes and to resolve those that do arise effectively and fairly. It will do that by providing forums to the taxpayers and the taxing First Nations, alternate dispute resolution through a roster of mediators and an appellate function with the power to rule on disputes.
The FNTC will provide training and certification for First Nations tax administrators to ensure quality control and administrative harmony across the country.
The FNTC will continue to balance interests. Many taxpayers within First Nations tax systems are concerned about taxation and representation. Responsible First Nations tax jurisdiction must respect those concerns and balance all interests. Therefore, the commission will have the powers to ensure that those interests are balanced. The commission will set standards to assure taxpayers that they will not be taxed unfairly and will receive services similar to comparable jurisdictions. It will be independent so as to ensure both taxpayers and taxing First Nations that all hearings will be impartial. It will be statute-based to provide greater certainty and stability.
It will have non-native, non-aboriginal representation to ensure that the full spectrum of interests is represented. It will have formalized performance and consultation requirements to ensure that the interests of all parties are heard and recognized. It will have expanded powers for hearing and resolving disputes, including mediation and an appellate function.
Making the First Nations Tax Commission a First Nations organization will also make it easier to balance interests. The FNTC will understand and protect the First Nations tax jurisdiction. Its messages will be delivered in an environment of greater trust and with more authority than would otherwise be the case.
The FNTC will be better able to communicate to First Nations the interests of other parties and the constraints posed by the national interests. It will make development and enforcement of regulations more efficient. Better communication will make it easier for communities to see the need to comply with policies, and improved communication will also open up space for interest-based negotiations between taxing First Nations and other interests.
The FNTC must be a national institution so that it can establish and enforce national standards and better promote administrative efficiency. It will create credible and strong First Nations self-governing institutions. A national commission will also be able to build First Nations management capacity at a national level. A national commission will be able to harmonize regulations and administrative practices across the country and to ensure the same administrative software, procedures, sample by-laws and training are applicable across the country. That will enhance the mobility of administrators, reduce the costs of investment decisions, allow training and administration to be provided at lower cost, and make it easier to draft by-laws and conclude agreements.
Finally, the FNTC must be a national commission in order to promote effectively the investment climate of all First Nations. It must give First Nations the responsibility to protect their economic interests by guaranteeing the entity of each First Nation property tax system in the country. In closing, the proposed FNTC in its procedures and functions will enshrine the principles of natural justice.
As I mentioned, I have been active in this organization since 1988. There are about 70 First Nations across the country. We have generated some $100 million. Some thousand person-years of employment have been generated right across the country. There are taxation by-laws from sea to sea.
Unfortunately, we do not deal too much with areas north of 60, but we have been meeting with Yukon First Nations dealing with some of their issues and with the Dene north of 60.
We have also been involved with the First Nation in the area of central Saanich, a municipality just outside of Victoria, in mediating disputes over servicing agreements.
We are presently becoming involved in the dispute at Musqueam regarding taxation without representation as well as the lease controversy that arose before Christmas.
We provide services to provincial governments as well as to First Nations. For example, we have worked with the Quebec government to have them vacate the tax field so that the community would be able to get into real property taxation. We have also been involved with the provincial government in British Columbia to enact legislation to see that they have an orderly vacating of the tax field. We have been involved in a number of issues across the country.
It is also important to recognize that in order for these institutions to begin to do their work, there must be a national vision. We must be flexible enough to ensure that that vision is translated to the individual First Nations communities. We must also recognize that real property taxation is one-tenth of the jurisdiction when it comes to fiscal relations.
At present, I am co-chair of an organization along with Herb George. He represents British Columbia and was instrumental in the decision reached in Delgamuukw. We are trying to develop a new fiscal relationship between Canada and its First Nations so that we can better deal with First Nations governance across this country.
Since I have been on council, I have been actively involved in a number of areas. In order to do the work back home, I must be involved not only at the local level but also regionally, provincially and nationally.
Our First Nation community in Kamloops was one of the first communities to have a statement of political relationship with our adjoining municipality, also called Kamloops, in 1991. We have joint regular council meetings where joint resolutions of both councils are passed.
We looked at protecting the North and South Thompson Rivers as well as at a number of other issues that we face together. There is recognition in the Thompson River Valley that the First Nations and the municipal governments must begin to work together.
That was also the inspiration for the establishment of CMAR, the Centre for Municipal-Aboriginal Relations, which was set up between the Indian Taxation Advisory Board and the Federation of Canadian Municipalities in order to foster a better working relationship.
In order for us to survive in this country, I think that we must breathe life into what the national chief and Minister Jane Stewart have spoken about in terms of developing a true partnership in this country.
At this time I would be open to questions. If there are not any questions, I can talk for another 50 minutes.
Senator Adams: It sounds like you are a tax collector or something. I am not really familiar with your organization. I know I pay taxes, too, and my taxes go to Revenue Canada. Are the taxes paid by people living on the reserve not going directly to Revenue Canada?
Mr. Jules: A little bit of history about Bill C-115 will give you some idea of the context.
My community is directly adjacent to the City of Kamloops, a municipality of about 80,000 people. Our community is about 900 people with a land base of about 33,000 acres. We have been involved in real estate development since the 1930s.
The provincial government in B.C. started to collect real property tax from our reserve in the 1930s. In the 1960s, when we designated about 300 acres as an industrial park, we looked to the provincial government initially to provide services for the taxes they were collecting, whether it be water, sewer, streets or street lighting. The provincial government at that time said, "Go talk to the federal government; they have jurisdiction on the reserve." We went to the federal government and they directed us back to the provincial government, saying, "They collect the taxes; go talk to them." That led us to about 20 years of discussion among all of the parties in order to clarify who has the jurisdiction to collect real property tax. Municipalities collect the real property tax and again provide services.
I was involved last year with Bill C-36. We addressed the GST as it related to gasoline, tobacco and alcohol products sold on the Kamloops reserve. The federal government vacated that tax field, which is where Revenue Canada collected the taxes, and turned it back to my First Nation.
In regard to the real property taxes, we send out assessment notices and determine a mill rate according to the ITAB's policy. Those relate directly to my First Nation. We use that to provide services to our tenants.
Senator Adams: When you collect taxes, do you do so in conjunction with the City of Kamloops? Is there an outside limit? I am concerned about the water and the sewer system. Building roads is not cheap. How are the people in your area serviced in regard to water, sewers and the roads?
Mr. Jules: That leads me to one reason I have been advocating a new fiscal relationship with Canada. I worked on an Assembly of First Nations' committee on access to capital. One of the problems that First Nations have right across the country is the complete lack of infrastructure on the reserve lands. Ottawa is an example of a community with good infrastructure, road networks, water service, hospitals, et cetera. When you visit most of our communities, you see those standards are not present. We do not have the ability to attract the capital to our lands to build the infrastructure.
It is cyclical. If you do not have the infrastructure, you cannot have the economic development. If you do not have the jurisdiction, you cannot find the stability to generate those funds. A lot of the work to which I have dedicated my political life has been in trying to clarify those jurisdictional areas so that we can provide the services.
Until my community started to collect tax, there was no one else who would provide the service. As all of us sitting around the table should know, when the Department of Indian Affairs does provide capital dollars for First Nations communities, they require, for example, that the reserve come up with $10 million for a water system. Few countries in the world that can do that, except perhaps Saudi Arabia. Indian Affairs acts like one of them because they do not have a system of what is called long-term public debt financing. A community can look at paying off a water system over 25 years, but paying for it within one year is unrealistic for any government across this country.
We must overcome our dilemma about letting First Nations generate funds so that we can reinvest them in our communities and be a productive part of the overall economy of Canada. If we are shut out of the economy of Canada, a cycle of poverty will be created similar to that in which we are stuck right now. We will continue in that cycle for the next 100 years. We must all face that challenge, not only in this room but everywhere else.
Senator Adams: Do you have increases every year? Do you adjust the mill rates? When I first moved here I bought a property east of Ottawa. About 15 years ago, property taxes were around $500. Now they are at about $1,500.
Does your system work differently because you are living on a reserve? How does your taxation system work?
Mr. Jules: That goes to one of the reasons for establishing the Indian Taxation Advisory Board. We wanted an orderly transfer to a dual occupation of the tax field. Under taxation, as you know, the federal government can tax any way it wants. The provincial government has to have a direct tax jurisdiction. When we began, we created the Indian Taxation Advisory Board to help clear the path for First Nations but also to give a voice on taxation to those people who do not have a right to vote within their communities.
We wanted to ensure that, when First Nations got into taxation of real property, there would not be an exorbitant increase in the mill rate and in taxes collected from real property. We have established policies to ensure an increase of no more than 5 per cent over an adjoining jurisdiction.
In the case of Kamloops, we could look to the city for their mill rate but we do not; we look at the regional district. We keep our taxes at roughly half of what the City of Kamloops charges. We use that as our mark.
We have also encouraged, through the policies of the Taxation Advisory Board, the other First Nations tax jurisdictions to do the same. In that manner we keep the taxes within a reasonable limit.
Senator Gill: I find that you are a courageous man to be dealing with taxation on reserves with the Indians. That is not a bad thing, but you must be optimistic in that.
On your reserve, how long did it take to establish this taxation system? I should like to know also the employment rate on your reserve. I imagine most of your people are working?
Mr. Jules: As I mentioned, my community was initially established as a reserve in the 1860s. It was called the Douglas Reserve. It was later reduced by a white fellow who thought Indians were no better than dogs. Other lands were opened up for pre-emptions. British Columbia had one of the largest land give-aways in the British Commonwealth with 320 acres per individual, for individuals other than Indians.
We have looked at economic development. As I mentioned, we have been involved in real property or leasing since the 1930s. Chief Louis was chief from about 1850 until he passed away in 1916. He used to sell sand and we had lots of sand on the reserve. He also operated a boat. Our community has always been involved in economic development. As a matter of fact, people we called "overlanders" were driving cattle into the interior and we would charge them a tax for grazing when they came through our territories. Similarly, in Huron Village, in the 1700s, they were charging tax on seigneuries in Quebec. That was done in very similar circumstances over and over again in this country.
Taxes, as we all know, represent the redistribution of wealth. It is the sharing within the community. When we began to develop our Mt. Paul Industrial Park, it was the first industrial park in Canada on a reserve. As a matter of fact, if not for our community, a lot of industries would have left Kamloops. It was not until about 1971 that the City of Kamloops developed their own industrial park and it was created to be in direct competition with our community.
We look at the world through eyes that recognize that we must contribute to our own betterment. We also recognize that Canada and the provincial government have assumed obligations to make things right. We called on Sir Wilfrid Laurier to make, as we said, "a square deal" with us in 1910. In a little related story, Laurier went on a campaign swing across Canada promoting free trade between Canada and the United States. He lost the election on that issue. It was not until our friend Brian Mulroney came along that free trade went through.
When we started to get into this business, we addressed much of the unemployment on our reserve. We have about 35 per cent unemployment. That is still unacceptable, but most communities that I visit have unemployment in the range of 80 per cent to 90 per cent.
Senator Mahovlich: Are many people leaving the reserve?
Mr. Jules: Our community is fairly urban, so most of our community members, about three-quarters, live on the reserve. The majority of our members actually live in Kamloops. We do have people all over the world, though.
Because it is an urban reserve, a lot of people request transfer to our community. We have been effective in developing an administration. We have about 100 people who work for our administration. Our industrial park generates about $162 million per year for the regional economy. Our tax base is about $1 million per year. Our revenues exceed that as well.
One must remember that the Indian Act was never designed to address the kinds of developments that are taking place on reserves. That is why there are disputes like the one at Musqueam and other places. We must develop a good system that encourages economic development. In my view, if we do not deal with this issue now, we will still be struggling 100 years from now and that is unacceptable to all of us.
Senator Gill: In spite of the poor level of economic activities in many communities, your belief or philosophy is that those who can pay income tax or property taxes should pay in order to show that you are contributing financially to the operations of your communities. Yet many people are not working. That means that you take money from those who are working and use it to support those who are not working. Your philosophy, in spite of the poor employment on the reserve, is that we should pay tax. That is what you said.
Mr. Jules: We are doing that. Chief Louis made a presentation to the McKenna-McBride commission in 1913 in Kamloops, and at that time we were dealing with what we called the Sprout Reserve of 1878. Our lands were reduced and then expanded. We ended up with what Chief Louis called a hole in the middle of the table of 320 acres. In order to get that land back, we talked to the owner of the ranch, a western cattle company, Harper Ranch, and we told the owner we would like to look at buying the ranch. He said he would sell that bit of land for $1 million. We had it appraised at $320,000. Of course, all of those people think that the federal government or someone else will come in and buy it, when that is not the case.
In 1989, a developer came to meet me and said that he wished to lease some land. I told him that we were in that business. We looked around and found that hole in the middle of the table. The developer decided to buy that land and so he signed an option to purchase. He came back and met with me and I told him that it was our land, that we have the underlying title. The developer stated that he had just bought it and, therefore, we could not be the owners.
My dad, who was on council, my council members and I went up to the land in March. We had a whole bunch of tires and a Cat there. We found that that developer planned to start clearing the ground for a golf course and condominium development.
Previous to that, the developer was asking for a 50-year lease on the land for $5 million. He was to be hired to run the development, and we had the land. My elders said to keep him talking. We talked for a while, he came down a little bit, and finally, in January, I told the developer it would not happen. We went up there one early morning in March, and he started up his Cat and we stood in its path. He asked if we would let him do the work. My response was that we were there to protect the underlying interest of our lands.
It took us five years to get that land back. In order to fight that case we went to the Government of Canada. We were told that there is funding for test cases, although you must be on your way to the Supreme Court of Canada. We went to the provincial government and they said that they would not protect us; they have a land tenure system to protect.
We were the only people who could protect that land. Therefore, I told my members that the only way that we could generate the funds was to contribute ourselves to a defence fund. We developed our own tax code to tax gasoline and tobacco. Everyone in our community contributed so that we could go to court to defend our land interests. That generated $700,000, and that is what the court case cost.
We ended up with an injunction, which prevented development. We settled out of court and we got the land back. We went back to the membership and told them that we have other lands, approximately 100,000 acres, that we must again protect because they are part of our original Douglas Reserves. Our members told us to continue on with the tax so that we could defend our interests.
In June of 1996, our members passed another resolution to formalize our position with Canada. Last year, in the federal budget, as part of Bill C-36, we occupied all the GST room on gasoline, tobacco and alcohol products, again, so that we could use those revenues to protect our land interests.
At the present time, we are conducting negotiations because we are now in a financial position to be able to purchase that ranch without having to rely on anyone other than ourselves to have a fair and just settlement to the land question.
It is the responsibility of all of us to contribute to a fair and just settlement of the land question. I have been thinking about people like Crazy Horse, Big Bear, Geronimo, those chiefs that go down in our history as being great chiefs. Can you imagine what it would have been like if Geronimo had gone to the President of the United States and asked for some funds to protect his land? It would not have happened.
We cannot depend on anyone else to protect our interests. We must do whatever is available to be able to achieve that. Part of it is access to the resources that are exploited within Shuswap territory. In the 1980s we did an analysis regarding how much revenue is generated in that country, which is approximately 56,000 square miles. I still think in miles. I cannot think in other measurements.
In any event, $5 billion a year is generated and what do we get? As Chief Art Manual says, we do not get one stick of wood from that territory. Yet, our communities are impoverished because we do not have access to the resources on our traditional lands, just as treaty people do not have access to the treaty lands. People seem to have the impression that there are only treaty Indians. Those treaties were not done in isolation. Those treaties were done between governments. That is why people talk about the spirit and intent of those treaties. That is not to say that all aboriginal people cannot work together because we must. Our survival depends on all of us working together.
Last September, I visited Chichén Itz<#00E1> in the Yucat<#00E1>n Province of Mexico for the solstice. On September 21 you see the serpent coming down the pyramid. Being there on that day was one of the most spiritual events of my life. When I think about our people, the aboriginal people of the Americas, having the technical ability to build those pyramids, to come up with the concept of zero, to position their temples so that they corresponded with an alignment of planets that happens only once every 200 years, I am so bloody proud of my history and who I am.
The things I do encompass that. I make sure that I understand my history because we contribute and have contributed so much to the evolution of the civilization of the world and of my own culture of Shuswap people. The struggle for all indigenous people is, as I say, for our own survival. It also reflects Canada's survival as a people. If Canada does not deal with us, how can this country ever hope to deal with the myriad of issues that must continually be faced on a daily basis?
Senator Pearson: You spoke earlier of 70 nations that have taken advantage of the models that have been evolving or of the capacity you have to assist them to develop. Where are they situated?
Mr. Jules: They are situated all across the country. The majority, of course, are in British Columbia, given the nature of reserve lands. Most of the reserve settlements across the country were established away from urban centres. Reserves were established in British Columbia usually around the 1860s. They were in prime locations like Kamloops, Squamish and Musqueam, so you have a unique situation in B.C. That is where most of the by-laws are, but they are in every province across the country.
Senator Pearson: Are they urban or more rural?
Mr. Jules: I am referring to the urban reserves, but rural reserves got involved in real property tax to access the revenues that the provincial governments were collecting from utilities. As an example, Ontario has Bell Telephone and Ontario Hydro. Ontario vacated the tax field in about 1971, much like Alberta. The first taxation by-law in Canada related to the Kettle and Stony Point First Nations in Ontario. That was enacted in the early 1970s. The others were developed in Alberta when Alberta vacated the tax field.
British Columbia did not vacate the tax field because it was generating money for adjoining regional districts and municipalities. We did an analysis in the latter part of the 1980s that showed it was generating millions of dollars for the province. In order to achieve certainty, we had to make sure that legislation was changed so that there would be a smooth transition of tax jurisdiction.
Senator Pearson: I was really interested in the notion of occupying the GST room. That is a negotiation with the federal government. Do you have an agreement with them?
Mr. Jules: Yes, and that is specific to Kamloops. That only applies to my community. It does not apply nationally.
Senator Pearson: It is not a bad idea.
Mr. Jules: It is one worth pursuing.
Senator Pearson: You want to evolve into this other body, into a First Nations tax commission. People consult you and you advise them. How does it work?
Mr. Jules: One good example is the Millbrook First Nation in Nova Scotia. This was after we had been involved in real property tax for a number of years. Millbrook, of course, is by Truro, just north of Halifax. Even though they do not have a large tax base, the Millbrook First Nation wanted to get into the tax jurisdiction to provide certainty because they were looking at a number of potential developments down the road. We went in and developed model by-laws. We have developed software that they can use. We started helping the negotiation and facilitation between the Millbrook First Nation and the Province of Nova Scotia.
At the time, the premier was the minister responsible for aboriginal affairs. When you come to Ottawa and see how many civil servants are running around and then go to the smaller provinces, you recognize that Canada is a really small place. We met the premier to talk about occupying the tax room, and we analyzed each individual situation. What were the benefits from taxation? If you consider creating certainty and the tax room, then you have to look at how much it costs administratively. We can provide all of that advice.
We also provide advice to the adjoining municipality. In the event that they are collecting tax, then you have to get into local service agreements for the services that are normally provided by the municipality so that the First Nation can occupy the field and provide fire, sewage, roads and those types of services.
Senator Pearson: That is very interesting. I am fascinated.
Mr. Jules: Senator Gill was talking about being a brave individual. There are many times when one is alone and when one questions the vision: Is this the right thing to do? Obviously it has been the right thing.
Senator Adams: You talked about collecting in small communities like reserves. You talked about cigarettes. The government is talking about allocating $120 million per year to cut down on the number of young people who smoke, but taxes go up every year. Can the government get into your community to collect taxes from small retail stores in your area? How does that system work? Do you tell the people in retail stores how much to charge for a pack of cigarettes coming on to the reserve? If I buy a car from outside the reserve but I live on a reserve, do I pay tax on that? Do I pay tax on guns used for hunting and trapping? Would you collect only property taxes?
Mr. Jules: One of our real national dilemmas is how we begin the process of decolonizing the First Nations. Decolonization in Canada is implemented through the Indian Act. When one looks at specific sections of the Indian Act and how the act evolved, it is important to recognize that there is a history behind all of the various sections.
Until about the 1850s, the Indian Act was not the Indian Act. It was in various statutes that Canada had and then it was amalgamated. For example, section 87, which states that the personal property of an Indian cannot be seized, is there in part because the Six Nations Reserve near Brantford, Ontario had what was called the Haldimand deed.
The Haldimand deed was some 600,000 acres. People would purchase land from individual members, and other lands would be seized. The federal government enacted legislation that prevented someone from coming in and taking those lands. There had to be a process.
The so-called surrender sections of the Indian Act have their history in the Royal Proclamation of 1763.
Section 89 dealing with exemptions from taxation was put there because Indian people were not in a position to be able to pay. As a matter of fact, I think we are just dealing with the anniversary of the establishment of income tax in Canada. One of the reasons it was instituted was to pay for the war and conscription and all the other stuff that went along with it. Indians were not included because we were not citizens at that time. As a matter of fact, I do not think the Inuit were included. We were not considered real people in British Columbia until 1949. We were not able to vote in federal elections until 1960. John Diefenbaker passed the legislation in 1958 that made us real people.
Senator Johnson: Women on reserves are like that.
Mr. Jules: Those issues are very complicated. Once they are bound up, how do you unbind them?
Senator Mahovlich: You get a lawyer.
Mr. Jules: Yes, you have to get lawyers. You have to look at that, but it is also a political problem. We have to deal with it in many forums.
Senator Gill: What would you answer to the people who ask you about strategy? Is it better to start by trying to solve the Indian claims before talking about taxing the people? We hear that quite often.
Mr. Jules: Yes, most First Nations people approach the issue of taxation from a number of different perspectives. One of those is the notion of tax immunity, the notion that they are immune from all taxes as a result of treaty and whatnot.
The way that this issue must be approached is to combine the discussions at a national fiscal table. I advocate that we establish a new fiscal relationship between the First Nations in Canada and the provinces. We must start on that basis.
We must also begin to address the long-outstanding land issues. We are currently promoting an independent claims tribunal to deal with Canada's lawful obligations on what are called specific claims. Canada has been balking at that because of the potential costs.
The backdrop of all of the debates is the debt that Canada has incurred and how it will be managed. Will it be borne by future generations? That is what will need to be done in order to retire the debt.
When we look at how First Nations fit into debt management, it is incumbent that we address this subject now. If we are looking at $1 billion now, we will be looking at $100 billion later on. The costs of not dealing with the debt will be borne by future generations. It is our responsibility. That is what democracy is all about. Democracy is about protecting future generations as well as the heritage that we have assumed.
Senator Mahovlich: Now that you are a people, you are part of the debt.
Mr. Jules: We all are. It is everyone's responsibility to begin to deal with the debt. Right now, First Nations are not in a position to be able to deal with it because of restrictive legislation under the Indian Act and because provinces are denying us access to the resources within our traditional territories.
Once those issues are formalized, we will be able to participate in Canada's economy. Canada's dealings with other countries, for example free trade between Canada, the United States and now Mexico, and also Chile, shows that this is an international issue. We are a part of that community.
Senator Pearson: In your discussion you mentioned a First Nations tax commission. Where are you at on this time line that you have included in your report?
Mr. Jules: We made a presentation to the senior policy committee of Indian Affairs yesterday and received support.
We are moving on to the next level, which includes a number of other central agencies. We will move forward in terms of support to the Assembly of First Nations through the Confederacy of First Nations and then the Chiefs-in-Assembly.
As a result of the issues that we face, we need to have a statutory basis. We are recommending to First Nations and to ratepayers that this is a policy to be adopted. We want to be in a position to work with them to ensure that there are sound policies that enshrine fairness and equity for all persons involved.
Senator Pearson: Do you have an MOU yet?
Mr. Jules: No. We have been involved in this area of jurisdiction for about 11 years. We were part of the DIAND structure. We have now separated from DIAND. As a matter of fact, our offices are on Elgin Street. We are separate from Indian Affairs. We have been taking it a step at a time. The next step is severing those ties.
The Chairman: Since as chairman of this instrument you are a federal appointee, are you being told by the federal government how that money can be used in the community? Does the community have the freedom to determine how that money can be used in order to address their own priorities?
Mr. Jules: I am a federal appointee. That came about because I had initiated the amendment to the Indian Act. It was recognized by successive ministers of Indian Affairs as well as by successive national chiefs. The appointment was with the support of the Assembly of First Nations. The Minister of Indian Affairs, in consultation with various vice-chiefs, appointed the other members across Canada.
The expenditure by-laws are approved by the Minister of Indian Affairs but are not restrictive in regard to the First Nations, as they have the legislative authority.
The Chairman: Do the managers still have the last say on the matter?
Mr. Jules: Theoretically, that is so. However, there is no barrier saying the money must be spent on this or that. Real property tax, you must recognize, is used for the provision of services, whether fire protection, roads or other infrastructure.
There is a story that turned out to be critical for the passage of provincial legislation. I asked a deputy minister of finance, "What kind of services does the provincial government provide to Kamloops for the tax revenues? I don't see any." He said, "Well, Manny, I better think about that. I will get back to you in a month." He came back to Kamloops in a month and I said, "Well, what kind of services do you provide to Kamloops?" He said, "Well, good government."
There is flexibility within the expenditure by-laws to provide good government. You must look at what good government means within First Nations communities. Much of it means providing better education for our students so that they have the opportunities that education can afford them. It means infrastructure so that we can provide better services to our members like water, better roads and better housing, which benefit all of us.
The Chairman: The Nisga'a case was settled not too long ago. I believe the people who were represented by that instrument have agreed to pay taxes 10 years after the settlement was signed. What is your feeling on that? Do you feel they are moving too fast?
Mr. Jules: Consider the history of British Columbia. The first fur trading post was opened in Kamloops in 1811. Ninety-nine years later, Sir Wilfrid Laurier came, and the interior allied tribes of British Columbia gave him a memorial. At that time, we outlined the 100-year history in my area. We talked about how we had jurisdiction in what we called "our ranch." In that document we called on Canada to enter into treaties with us and to provide us with a good deal, "a square deal" we called it. We said that it is not the fault of the individuals who bought their property in good faith; yet it is incumbent on those individuals to tell their governments to do right by us.
When the French first came to us, they were the priests and the fur traders. Of course, they were small in numbers, but they recognized our jurisdiction, while those who came later did not.
The treaty process in British Columbia must continue. At the same time, it is shrouded in some controversy in my area because the six nations that comprise the interior of British Columbia have refused to get involved, the majority of them, with the B.C. treaty process. That highlights some of the weaknesses within the treaty process.
One weakness is that you must deal with the treaty process on an individual, band-by-band basis. In B.C., that could ultimately mean that we end up with 197 different treaties, which is unrealistic. We advocate in our area that it should be done on a nation-by-nation basis. For the Shuswap, that means 17 communities sitting down with Canada to deal with that issue. In the Nass River Valley, it was relatively easy because four communities of Nisga'a were able to sit at a table, and they got involved in the treaty process only with the federal government. It was only recently that the provincial government came to the table. You must consider all of the various politics in B.C. when you look at developing a treaty process.
Ultimately, we all have to be at the table on our own basis. Hopefully, treaty dealings will resolve many of the issues, but in some cases nothing is resolved because there are ongoing processes that must be facilitated through the development of a treaty -- areas of overriding jurisdictions like child welfare, the judicial system, and all of those kinds of things. Health is another example. We were left out of the social union discussions recently, but the provinces benefit probably upwards of $1 billion from federal transfers to the provinces because they use our numbers as First Nations. There are many issues that must be resolved.
My own personal view of the Nisga'a, as Senator Gill said, is that they are brave people in Nass Valley because they have chosen a path for themselves.
The Chairman: That path will not be agreed to by the others.
Mr. Jules: Sechelt was next. Others are coming. A number of issues interconnect with the so-called "in all fairness" federal policies. You must deal with extinguishment issues and loans. Again, that is a reason my community objected. They do not want to borrow money to have a fair and just settlement. When you make that decision, you must generate those funds on your own.
The Chairman: Thank you. That was an excellent presentation.
I would imagine that you would be able to participate in the round table on governance, dealing with the economic side and the taxation issues. I think your experience, your knowledge and your vision will also be very helpful to discussions on that level. Our next witness is a Métis specialist, Mr. Martin Dunn.
Mr. Martin Dunn, Consultant: I want to thank you for the opportunity to appear here. Normally when I appear in front of groups like this, it is as a representative of some organization, usually the Ontario Métis Association or the Native Council of Canada, now called the Congress of Aboriginal Peoples.
This time I am not representing an organization but, in a sense, myself. I bring 20 years of experience to the issues that you are addressing, and the concerns that I want to bring to the table are entirely those of off-reserve aboriginal peoples. That includes some Bill C-31 natives and many Métis and non-status Indians across the country.
In the last 20 years, I have sat through literally thousands of meetings with these people and I have heard their concerns. I see in this room many people who were involved in the FMC process. That was a learning experience for all of us, at the very least.
After going through that process, I still do not have the feeling that the "governments" yet have a grasp of what they are dealing with in terms of off-reserve aboriginal peoples. I hope I can provide you with some of that information here today and that it will be useful to you. I usually find myself either planting seeds or rattling cages, but perhaps today I can do both.
I have provided you with a photocopied booklet called, Access to Survival: A Perspective on Aboriginal Self-Government for the Constituency of the Native Council of Canada. When that booklet was published by Queen's University in 1986, it was made very clear that it did not represent the official position of the Native Council of Canada. Nor does it represent the official position of the Congress of Aboriginal Peoples today. It does, however, give you an outline of the incredible variety of peoples and circumstances with which we are dealing in the context of off-reserve aboriginal peoples.
Of course I reread this prior to coming here to refresh my own memory, and it was a little bit depressing. This booklet is still current because very little has changed. In terms of off-reserve aboriginal peoples, this publication is still relevant, which is kind of sad, considering it is 15 years old.
There are two dozen booklets in this series, written by different people from different perspectives. You should try to make them a part of your deliberations and your library, if you can. When I called Queen's University to ask for copies of this one for you, they only had five left, so it seems they have not been keeping them in print.
What I am dealing with today is still very much at the level of principles. I wonder about these witnesses who are dealing with taxes, since we are so far away from that in terms of the off-reserve aboriginal peoples. We do not have access to any of those processes and are still very much at the blueprint stage.
Perhaps it would be worthwhile to back up a little. It is so easy to get involved in the details that we can overlook some of the very fundamental principles that are necessary to any real understanding of the meaning of renegotiating a relationship between non-aboriginal and aboriginal peoples. One thing I have learned in the last 20 years is that nothing that any individual can say will be true for all aboriginal people everywhere at any time. The situations of aboriginal peoples are too varied. Events happened in many different time frames as settlers rolled across this country from east to west.
Except for that statement, I guess not everything I say here today is applicable to all aboriginal peoples. That is one of the issues with which you have to deal. How do you accommodate the diversity? That is what I hope I can elaborate on here today.
I raised a question with the Royal Commission on Aboriginal Peoples that I still have not heard asked often enough in a public forum, and that is, are aboriginal people important in Canada today as distinct peoples? If you cannot answer "yes" to that question, everyone might as well go home. There are people here who cannot say "yes" to that question. The Fathers of Confederation said "no" because they left them out of the process entirely. Federal governments put aboriginal peoples in the context of wards of the state. They said "no." The entire premise of the building of Canada itself was that aboriginal people would be extinct before the year 1900.
Well here we are at the year 2000, perhaps stronger than we were in 1900, and growing faster. In some respects, we are more capable of dealing with the vagaries of non-aboriginal politics than we were then. We had too much trust in those days, but we have learned differently.
I am not asking you to answer these questions aloud, just in your own heads. If you cannot say that aboriginal peoples are a continuing and permanent part of Canada, then you will not be able to provide anything useful to this discussion. If you cannot say that aboriginal peoples have aboriginal and human rights in the context of the Canadian polity, then it is very unlikely you will be able to contribute anything positive to the processes you are being asked to discuss.
Another question that is almost never addressed is what value is there in having aboriginal peoples as a distinct entity among the polity of Canada? Everyone talks about what a problem it is and what a cost it is, but no one talks about what value it might have.
In the first ministers' conference process, the only government sitting at the table that talked about the possibilities of aboriginal values in the context of governments was the Northwest Territories. I think other Canadians still have in the back of their minds the idea that aboriginal people will still become extinct and will still be assimilated and disappear off the face of the Canadian political and social map. If people here are still thinking that way, then they will not be very productive in terms of arriving at the relationships that we are discussing.
To take it back one step further, is aboriginal ancestry important in and of itself? Obviously it is important on a reserve, and in a predominantly native community, but is it important in downtown Toronto? Is it important in Ottawa? Is it important in Winnipeg? We must be able to answer "yes" to that question as well, but one does not hear that answer very often.
Some people think we do not have a hope of evolving anything much beyond the existing political structure because there is not the necessary political will. Political will was missing at the FMC. Even when some political will was found in the context of the Charlottetown Accord, Canadians were so anxious to kick Mulroney's ass that they would have said "no" to anything. Hence the aboriginal package was lost in an anti-Mulroney campaign, which was really too bad.
I wonder if you have looked at the Charlottetown Accord specifically, because it contained a blueprint that provided for many of the things I will be talking about today.
I want to now address the gulf between the two sets of populations. I first came to Ottawa for the inaugural first ministers' conference, to work for the Native Council of Canada. I expected to be here three weeks and then go home. Here it is 15 years later, and I am still sitting here.
I walked into a craft store on Elgin Street and picked up a craft. Written on a little tag were the words "Made in Occupied Canada." That was such an eye-opener for me. There are people out there who honestly and sincerely believe they live in a country occupied by aliens and foreigners, exactly in the same sense that the French were occupied by the Nazis in the Second World War. That is one extreme of the variety of aboriginal attitudes that this new relationship will have to cope with.
Then of course, at the other end of the scale, there are people such as many in my family, who have lost any sense of the significance of their aboriginal ancestry. They are assimilated for all intents and purposes. That is the range you are dealing with in the context of the issues you are addressing.
I always liked Zebedee Nungak's statement "How do we do constructive damage to the status quo?" We cannot, unless we bring, not just new relationships, but new concepts about the relationship between aboriginal and non-aboriginal people.
Presumably we are trying to build bridges between the two sets of communities, but you cannot build a bridge if you do not know where the other side is. I suspect most Canadians have no conceptual idea of where the other side is. You cannot build a bridge if there is no agreement on where it should be built, and that agreement does not yet exist for off-reserve aboriginal peoples. It does exist where public governments can be formed, as in the case of Nunavut, and in some cases on reserves, where they have been able to expand their jurisdictions and authorities. However, the majority of aboriginal people in Canada are not ever registered under the Indian Act. As long as you are dealing only with people under the Indian Act, you are dealing with a minority of aboriginal people in Canada.
The number of people who identified themselves as of aboriginal ancestry in the last census was just over 1 million. As a result of my research, I estimate the real number is at least 10 million, maybe even 12 million or 15 million, depending on how many French Canadians admit they have aboriginal ancestry. Most of them have it, whether they admit it or not. There is a huge groundswell of people who are genetically connected and genetically related to a feeling of "indiginality" in this country.
I attended the first ministers' conference as national coordinator for the Native Council of Canada. I was not at the table frequently, except in meetings of officials, but I did watch the two sides talk to each other. Being a Métis, I have a sense of each of the two sets of cultures. The two sets of delegations were using the same words to mean different things and different words to say the same thing. Their arguments were over each other's heads, and it is no wonder there was so little agreement in the process.
I began to see something that I had not expected to see. Most of the delegates on the government side considered themselves to be the sons and daughters of immigrants to this country and they were proud of it. One would come to the table and tell you how his grandfather came to this country with $2.
On the other side of the table, there were people who said, "We are the sons and daughters of the aboriginal and indigenous peoples of this country," and they were proud of it. They were trying to express that concept to the sons and daughters of immigrants.
However, how do you define "immigrant?" An immigrant is a person who has left his or her homeland and come to a foreign land to build a better life. The last thing those people want to hear is that being indigenous is important, because they have already decided by their presence here that it is not. Those people who were forced to come here by war or expulsion have a scar on their hearts and they do not want people picking at that scab.
The people sitting around the table as government delegates simply were not prepared to hear that being indigenous is a centre point for a way of life.
We as aboriginal people must take responsibility for teaching those immigrants what that is about. If we do not, we will all go down in a pile of garbage, as far as I am concerned.
I am assuming the process you are addressing, the whole idea of aboriginal self-government, came out of the FMC in 1985 and 1987 because the agenda was too big to deal with it. When they sat down in 1983 there was hardly time to read the agenda, much less do anything. There were many pages and lists. I do not remember whether it was the AFN or the federal government that first suggested that if we addressed the issue of self-government, we could put all these things under that and let the governments take care of those issues when they took over. Everyone thought that was a good idea, so they began to work on self-government as a way of resolving all of these issues that could not be addressed in the context of the FMCs. It remains to be seen whether or not that was really a wise decision.
One thing really infuriated me. If I had been an elected representative at that FMC I would have jumped across the table and hit someone. The feds asked, "What is aboriginal self-government?" Here are the guys who run this country, whose job it is to govern, and they are asking us what self-government means. If they do not already know the answer to that question, are they not in the wrong job? However, they have asked us to answer the question from an aboriginal, indigenous perspective.
I must say I was disappointed in the royal commission's decision that, in needing to find a way to cope with this mass of material that had descended on them, they would look at it from the point of view of nation-to-nation negotiation. That raised every red flag for me. That means no off-reserve, no non-land-based, no unregistered, and that scares me even now. The format that has been set up by nation-to-nation negotiation eliminates any population that cannot immediately identify itself as a nation, and that includes the majority of aboriginal people in this country. They do not belong to a nation yet. They do not have the basis or the linkages via 91.24, or via the claims process, or via the treaty process, because they have been cut off by government policy. Specific claims say, "bands only, please." South of 60 says, "treaties covered it all and you are not treaty, so get out of here, that is a specific claim." Off-reserve aboriginal people still do not have access to the mechanisms and processes that First Nations on reserve, Inuit people, and some land-based Métis people have, and of which -- good for them <#0107> they take advantage.
I thought the nation-to-nation approach was frightening because it can build in the same kinds of restrictions that existed under the old regime, which is to say, government can only deal with certain avenues of connection and of communication. They do not wish to build more of those connections. The last time they built them with aboriginal peoples was in 1971, when they gave core funding to off-reserve aboriginal organizations, and they have learned their lesson from that. They will not do that again, because they did it thinking they would get a bunch of little brown civil servants to deliver government programs to aboriginal communities, so they would not need to. What they got was a group of people who finessed that situation into representing themselves at a first ministers' conference across the table from the non-aboriginal leadership of this country. National aboriginal organizations do not get enough credit for that little bit of finesse. Nevertheless, the linkages are still not there.
People accuse me of being pessimistic. Never in my wildest dreams would I have imagined the federal response to the royal commission report. After all those dollars and all that work, what does the federal government say? If you had not been smacked by a nun or groped by a priest you were told to get out. The rest were told to line up; we have $356 million we wish to spend. Even in my worst dreams, I would not have dreamt that that could be the response.
Aboriginal public government is something that could apply to some small, off-reserve communities where aboriginal people are the majority. There is some possibility there. The one that strikes me as being the most applicable is the one which is addressed in this booklet, and that is the community of interest, establishing a basis for recognition of various aboriginal peoples as a community of interest for the purposes of "blank." Fill in self-government, claims, treaty, whatever interactive process between aboriginal and non-aboriginal peoples there are. That is not new in Canada, they do it all the time for Catholic schools. That is a separate community of interest. The Jewish community certainly has its own mechanisms and processes set up as a community of interest. A community of interest is a workable process within Canadian polity without doing very much constructive damage to the status quo.
The community of interest approach is really the only realistic one for off-reserve aboriginal peoples, but it should not be a poor cousin, as it is the way RCAP sets it up. RCAP excludes it from any serious relationship to jurisdiction. Basically they confine it to program service and delivery, which may well be one of its functions, but I do not believe the process should be set up with that premise. It may be that as each community is identified and comes forward, that they will wish to negotiate. That is fine because it is coming from the community itself, but it should not be precluded.
Just as an example, the Métis of the prairie provinces are a huge community of interest, if you wish to look at them that way. There is no reason they should not have the same kind of jurisdictional relationships to other government that First Nations governments would have. There are some things to be looked at rather carefully there.
Blockages to that process exist. This is something I raised in a presentation to Trent University recently and I received a very cool reception. Nevertheless, I will do it again. Governments have a real resistance to this whole process, and as every aboriginal person in this room knows, when governments have a resistance to something they go into conflict management mode. That is designed to defeat you, not to accommodate you. That is designed to delimit the response so that it will cost the government the least amount of money in the shortest period of time.
First they will deny there is a problem, then they will ignore it, then they will deflect it, and then they will identify and internally analyze the problem. That can take 10 or 15 years. They can consult on the problem, introduce opposition to it, and divide and conquer participants in it. They can co-opt the problem by saying it was their idea in the first place, declare the problem solved, and then, when that is challenged, they go back to step one and deny the problem.
Most of the leaders who began this off-reserve aboriginal movement in the 1960s are now dead. Their lives were spent in this conflict management regime, and it is up to us who survive to see to it that it was not in vain.
The conflict management regime is the reverse of accommodation. In an accommodation regime, you acknowledge the issue. To some extent, that has been done in the context of self-government. You cooperatively address the nature of the issue, and presumably that is happening now.
We need to develop a consensus and processes needed for resolution. That is very difficult because of the variables involved, and therefore I do not believe that is really being successfully undertaken.
Confirming the validity of the processes with the affected constituency takes a lot of money. That involves community meetings, hashing things out. I think one of the reasons the Charlottetown Accord, although it failed in a public vote, was not resurrected was because a large number of the aboriginal communities did not understand what it was going to do to them. As a result, they were kind of happy it died, because then they did not have to deal with whatever it proposed.
Examining proposed options for resolution is presumably what we are doing here.
Review and confirm proposed resolution with the constituency. Again, that takes huge resources.
Cooperatively execute the implementation, and provide mutually agreeable conflict resolution processes, which means both aboriginal and non-aboriginal groups cooperate in the resolution. This is not just a unilateral process.
Periodically review the implementation. I hope that kind of process will begin in this context, but I had the same hopes for every previous process, and every one has gone down the tubes. Exactly why it has gone down the tubes is a combination of lack of political will on one side, and failure to recognize the differences between the two sets of people on the other. Until you recognize those differences, you have no way of accommodating them.
In terms of recommendations, two things are really badly needed here in Canada. First is the restoration of the honour of the Crown in the aboriginal community. Right now it is very low. More and more people are beginning to think of the Crown as enemy instead of protector, as opposition instead of colleague, and that is a very sad state of affairs. I honestly do not think it has to be that way. In terms of off-reserve aboriginal peoples, Métis, Bill C-31, and non-status, there has to be some mechanism for establishing a level playing field with other aboriginal peoples. Since I became involved in the process in the mid 1970s, Métis have proposed that recognition under 91.24 is one mechanism for doing that. Then at least Métis will have the same fiduciary link to the federal government that other aboriginal peoples enjoy.
When I first heard Métis were proposing that, when I first became involved in the movement, I thought it was kind of crazy, to tell you the truth. I thought, "What good has it done Indians? Why would you want that? Indians have been royally screwed under 91.24. Why should we go for the same thing?" That is, I thought that way until the court cases, basically until Métis came under the Constitution. That was a very ambivalent moment for me, because, at the moment it happened, of the approximately 20 people in the room I was in, I do not think there was anyone who was not crying. We thought we had won the war. The trouble is we are losing the peace, piece by piece by piece. We have not won anything since.
In the Charlottetown process, all the delegations, federal government included, agreed Métis should be recognized under section 91.24. I do not know if you caught it or not, but in Ms McLellan's response to the RCAP report, she said, "We do not want to concern ourselves with jurisdictional issues just now. We are more interested in establishing partnerships." I thought to myself, "There goes section 91.24. She just threw it out the window." It remains to be seen whether or not that is true.
Establishing this level playing field in the context of your recommendations would involve recognition of Métis via section 91.24, and would involve access to claims processes south of 60 for all off-reserve aboriginal peoples. Currently, only band members can access that process.
There should be treaty rights established, where appropriate, and in response to questions, I can talk about Métis and treaty rights until it comes out your ears.
I do not know whether creation of new bands, where possible, has been addressed. It is technically possible now, and always has been, under the Indian Act, to create new bands. The criteria by which that takes place has never been very clear, and if there could be a set of criteria established, perhaps a lot of our off-reserve people could qualify in that context.
The Chairman: Thank you. One area in your presentation particularly struck me. I am not sure whether we understand and communicate in the same manner as in the past. I heard you say that nation-to-nation negotiation is a non-starter, if I understood you correctly, because so many people are left out. You seemed to be saying that nation-to-nation discussions or negotiations were not the way to go. My feeling is that nation-to-nation also represents people-to-people, so that if the off-reserve people, or anyone else not covered under the treaty were included, would you then have no problem with nation-to-nation dealings?
Mr. Dunn: That is right, but I would sure want to see the text. There have been several texts drawn up stating they were going to do that, and in fact they did not. They said, "This is to apply to all aboriginal people," but in fact it only goes down the prepared slides of 91.24, of the Indian Act, of land claims vis-à-vis Inuit north of 60, and of specific claims, which only bands can produce. If the criteria to which the word "nation" is attached are broad enough to accommodate off-reserve aboriginal peoples, I would have no problem.
The Chairman: All right. Do any senators have any questions?
Senator Adams: Thank you, Mr. Chairman. I have a question about the problems of those living off-reserve. I would like to know, if you have a problem with your family, or if, say, you need social assistance, how does that work in the city?
Mr. Dunn: Basically, it only works, from my experience, in situations where you have a very strong local leadership. If you have large off-reserve populations, then generally speaking, funding can be made available to you to work in those kinds of contexts. Certainly that has been the case with housing for years. In fact, there is a guy at NCC who used to say, "To heck with claims. We will buy our land back one house at a time." There was some reality in that, except the houses were not side by side.
However, if you look at the problem from the point of view of whether services are equitably distributed between off-reserve and other aboriginal peoples, then I can certainly say they are not. Where a community is lucky enough to have good leadership, fairly large locals, or a fairly well-developed infrastructure, it can happen in part. It is certainly possible to plug into federal programming. However, there is no mechanism, by and large, by which those individuals can make decisions on how their social structure is being shaped. It happens to them, and they accept it or they do not, but there is no participatory process by which they can involve themselves in the decision making.
I think that is another of the fundamental gulfs between the two sets of people. The non-aboriginal world is what I call "kick-ass 49." Get 51 per cent and kick-ass 49. That does not work in an aboriginal community because that 49 per cent will just go and form another group and come back and beat you up. That kind of struggle for control in a given area is very destructive to the kind of infrastructure we are talking about.
There must be a mechanism and a process in place where the elements of consensus can begin to be instituted. That is how decisions are traditionally made in aboriginal communities.
The process of consensus requires a completely different kind of leadership. A good consensus leader can have two dozen people in a room, all asking for different things, all leaving the room thinking they got what they wanted.
There are many leaders who have that kind of genius; however, it is not the kind that is attracted to organizations built on "51 per cent kick-ass 49." There certainly must be a restructuring of aboriginal organizations at the community level.
The initial organization was put in place simply because government officials wanted to be able to recognize it. The only way they could recognize it was under the Societies Act, where you had a president, a vice-president, a secretary, and a treasurer. If you did not do that, you did not receive any money. It was as simple as that. People did it.
Senator Adams: In the meantime, Indian Affairs, or the government, has a structure. If you are an aboriginal Canadian seeking employment, what are your alternatives? If you are a treaty Indian and live in the city, you want a job too. How does the system work? You are not an immigrant looking for a job. You should be at the top of the list. How does that work?
Mr. Dunn: Actually, my mentor, who brought me into this process in 1963, would tell me to watch an Indian when he comes into the city. When he comes off a reserve, what is the first thing he does? He sets up a trap line. He sets up specific places where he can go to get the things he needs. Once you know what his trap line is, you can meet him there almost like clockwork. You know he will pick up his cheques here and his girlfriend there. He is going to be drinking there and he lives there. He has a trap line.
It depends on how lucky you are and how close you are to the resources you are trying to trap. That goes back to local infrastructure, strong local community organizations, and strong local leadership. Where that exists, the kind of search you are talking about is not all that difficult. However, it does not exist everywhere. In my experience, strangely enough, it exists in the larger communities for the core ethnic aboriginal element, and it exists in small communities because they are more visible. However, it is absent from all the ones in between that do not have sufficient big-city infrastructure to enable the aboriginal community to live off the crumbs. On the other hand, they are a very small part of the population.
Senator Adams: We heard from previous witnesses who indicated that there were 60,000 native people living off the reserve in Toronto. Do you have any idea about the population of native people in other cities?
Mr. Dunn: Montreal is close. I used to call Montreal and Toronto the two biggest reserves in Canada, because they are.
The Chairman: Montreal might even be bigger.
Mr. Dunn: If you are including Métis, they may definitely be bigger, no doubt about it.
My question is how important is it to have aboriginal ancestry in Canada? If that is important and to be supported, then mechanisms and processes must be put in place so that these people can come forward. Right now, those processes simply do not exist.
Senator Adams: If you come off the reserve and you want to set up a business, how does the system work? How would you deal with the municipality?
Mr. Dunn: I am only familiar with Ontario. The only place you can go is a specific business development corporation. If they like the look of your business plan, you can get funded through them. The Métis also operate a business plan process.
It is not that there are absolutely no mechanisms to address social programs and services, but there are definitely no mechanisms to address self-governing decision-making processes. The word is that organizations that do exist will be closed down within two years.
Senator Gill: The membership of Indian people is defined by Indian Affairs. What would you like to see happen in regard to the Métis people?
Mr. Dunn: You just hit a motherlode here, but I realize you are very short of time.
As briefly as I can, I personally think any attempt to define any aboriginal person as anything is doomed to failure because the variety is too broad.
What you can do is establish their eligibility to benefit. For example, any person of aboriginal ancestry who wishes to declare himself or herself to be a Métis person should be able to do that without any restriction or interference from anyone anywhere. However, as a result of that identification, that person may go to Manitoba and say, "Hey, I want my 160 acres," and someone says, "But you come from Newfoundland." He says, "I don't care, I am Métis; I want my 160 acres." That does not work. What you must have is a process by which eligibility for benefit is distinct from criteria for identity.
At the first ministers conference, there were three elements agreed to by everyone: aboriginal ancestry, self-declaration, and community acceptance. The only time community acceptance must come into play is when someone who is exercising the first two is trying to achieve a community benefit as a result. Then the community must say, "Wait a minute, you are not part of our community."
I have a Web site called "The Other Métis." A very angry woman e-mailed me. A bunch of Métis from Labrador had come out and taken all their oil jobs in Alberta and they were furious. Those jobs were intended to be for the local Alberta Métis people.
There should be a mechanism or process in place whereby the Métis of the community where those jobs were being made available would be able to certify, not whether or not the people from Labrador were Métis, but whether they were eligible for that particular Métis benefit.
The Chairman: Mr. Dunn, I appreciate your presentation. We will be taking your points into consideration and we will get back to you about some areas where we feel that you might have to further contribute in finding solutions to the problems.
Our next witness will be Mr. Sol Sanderson, the Chair of the First Nations Forum. Accompanying him are Mr. Eddy Head and Mr. Roy Head.
Please proceed.
Mr. Sol Sanderson, Chair, First Nations Forum: Thank you, honourable senators, for hearing us on such short notice.
With me are Chief Roy Head from Red Earth First Nation and Chief Eddy Head from the James Smith Cree Nation.
Chief Eddy Head, James Smith Cree Nation, First Nations Forum: Senators, we are pleased to be witnessing the kind of work you are doing this evening.
We want to table with you the issues that we must deal with in terms of leadership and among our membership back home. On behalf of our membership, we bring our warmest respect and thanks for this opportunity to address the Senate in a way that we feel affects our lives.
I bring you some ideas about how we see things. I bring some dialogue to share, but also some respect for what has happened to us in the long history of what we call treaties. We want to discuss your motivation as the federal government in gathering strength. How do we do that? We have some ideas.
I am very grateful to be here as part of this delegation and as a witness to the kind of work the Senate is doing.
Chief Roy Head, Red Earth First Nation, First Nations Forum: Senators, Red Earth now has a population of close to 1,000, and I am honoured to be here tonight on behalf of those members. For some time now, we have been struggling with how to govern ourselves in our community and in our own way, the way we understand government and how government should work. We know there are other forms of government within Canada, but those systems do not actually fit in with how we, the Indian people, do business in our communities and how we govern ourselves.
Over the last five years, we have come up with structures to make us more efficient in dealing with the day-to-day governing of our people.
As a membership party, we draw all our authority and strength and our mandate from the people. The members, the grassroots people, are the foundation of our government structure. They give us our mandate to deal with other people or other governments.
We are grateful for our membership and for the advice of our elders back home. Our elders sit in on our meetings, as do our youth. The new generation must also help carry out the work of the First Nations government. We are pleased to answer your questions.
Mr. Sanderson: One of the documents provided to you refers to the sovereignty treaty forum. Please turn to page 25 of that document.
The Chairman discussed earlier the work we did leading up to the Constitutional amendments. This document shows the framework to which we were speaking then on sovereignty treaty relations. It is discouraging to me that the many long debates between the French and English peoples of Canada have eliminated any suggestion of room for a sovereignty debate which represents First Nations' interests.
We would like to raise a level of discussion here with respect to how we see that working. We talk about the framework of the inherent rights treaties, the Royal Proclamation Act of 1763 and the Constitution Act of 1982. There is enough recognition there now. We do not have to be debating additional recognition by non-Indians. Rather, we are concerned that the level of debate and discussion on implementation is heading in the wrong direction.
We want to talk about equality. There are two forms of equality at issue here in Canada but we do not talk about them. First, there is the equality issue and the definition of laws of general application which are applied equally to all Canadians. You know why we put sections 25 and 35 in there. It was because Canada would need a special law to implement and enforce inherent rights and treaties in respect of relationships between First Nations and Canada. So when we talk about that form of equality, we are talking about the equality of government, law, jurisdiction and courts. Those categories cover First Nations government, federal government, provincial government, and the equality of those governments; First Nations law, federal law, provincial law; First Nations jurisdiction, federal jurisdiction, provincial jurisdiction; and First Nations courts, federal courts, and provincial courts.
It is not hard to imagine that those systems are workable, we just need to look in our own backyard. The French and English factors have accommodated each other politically in the same way in their institutions of government and in their different forms of law. The French civil code holds in Quebec and the English common law holds for the rest of Canada. We know that.
Across the border in the United States, the equality of government, jurisdiction, courts and law is no problem between the tribal governments, the state governments, and the federal governments. They deal with it based on a sovereignty agenda. They are not afraid to talk about sovereignty down there.
In James Smith First Nation, we started Indian government 30 years ago; we started Indian control of education 30 years ago. People told us it was pie in the sky. They told me I was nuts. I heard that from many of my colleagues when we tried to talk about First Nations sovereignty within our own organizations.
I can tell you today we are not nuts. Everyone is struggling; we are trying to understand it. We do not want any more consultation or studies. We want implementation. I did not need a $60 million royal commission study to tell me I had sovereignty or treaties or inherent rights or anything that is listed here on your agenda today. Perhaps others needed that but we did not.
Nevertheless, it is done. We reviewed your terms of reference, and what we are doing in our work today is exactly what you are trying to address.
If you look to page 23 in the same document, we have a short listing of inherent rights. There is nothing magic about inherent rights, nothing mysterious. These are the same inherent rights of any society and any culture. We list them as traditions, customs, values, practices, culture, language, inherent right to self-government, self-determination, citizenship, and membership. We do not want anyone controlling that. We will control it and we will decide as a power. Also listed are land, resources, water, health, education, social development, economics, justice, shelter, and air. We see that as a short list of inherent rights.
Across the top you will see many of the agreements and instruments in force today that impact on those inherent rights. When we talk about inherent rights, we are talking about rights that were granted to us by the Creator. We were born Cree and we were born with inherent rights. We inherit them from generation to generation. No one gives us inherent rights; we have them.
With respect to the recognition of inherent rights by treaty, we reserve the whole range of inherent rights. You could go down that list I went through and identify clearly what was not on the table. We did not put everything on the table. Yet, the federal Department of Justice says treaty number so and so extinguished all inherent rights. How silly can it be? If that is the attitude, then we may as well dismantle the Department of Justice and start over again.
Nevertheless, that attitude must change, and that is why we are here. We think we can encourage that change because we are talking about implementation of inherent rights. We want to implement the inherent rights of the Cree Nation. Keep in mind that inherent rights are national rights, not just people's rights. Let us not get caught up in diminishing them in terms of their status.
The implementation of validation is our responsibility. We can talk to Mr. Chrétien, Mr. Romanow, and any other leader in this country. If we do not take the responsibility to validate and implement inherent rights, it is our problem. We are developing a system that will implement inherent rights by sector and by institution.
We talk about budgeting, and that is on a larger chart we gave you. You were asking about fiscal relations. The larger package deals with how we would implement First Nations' budgets and how we would implement inherent rights and treaty rights by sector. We can discuss that.
However, when we talk about inherits rights to self-government, we are talking about our form of government. We are talking about the inherent rights and powers of our membership. Chief Head referred to the powers we have locally.
The powers of Parliament here in Ottawa tip that upside down. Those are the powers that we have in the context of inherent rights in the community. Those are inherent rights and powers of the membership collectively, not of the leadership.
If you look at that same package, there is a structure illustrated on the second page from the back, the governing structure we are working on implementing.
When we talk about democratic forms of government, we have examined traditional forms of government, such as those of Europe. We found that in Europe and other parts of the world, there is very little democracy in government. There are dictatorships, oligarchies and monarchies, but there are no democratic processes. The U.S. Congress borrowed the concept of democratic government processes from the Iroquois Confederacy to establish their own model.
The executive branch, the judicial branch and the legislative branch of government is not new to us. It was part of our traditional function of governing, and we had our governing systems in the clan system and kinship system. We modified that, but we still keep the traditional systems of governing.
Council representatives are selected by family units. They are not there to hand out doorknobs or houses or deal with programs and services. They are there to deal with the powers to govern, some of which are listed in the bottom corner of that document. The powers associated with inherent rights and powers to govern are the following: To determine our own form of government, determine our own laws, determine our own form of justice, determine our own membership and citizenship, and on and on it goes.
When we talk about accountability in that form of government, we are talking about political accountability as far as leaders of First Nations are concerned. We are not asking the leaders of First Nations to represent the devolution that the provinces and the feds are implementing. We want them to represent the issues we are talking about today. We want them to lead in that field and implement the jurisdiction of First Nations. We are not putting the jurisdiction of First Nations on the table for negotiation, like the policy of inherent rights to self-government that Indian Affairs is pushing. Sovereignty is too crucial to us to put on the table. It has never been on the table, but we are not afraid to discuss it and deal with it. We will implement jurisdiction, and we expect that the federal and provincial governments will move over to sit down and discuss jurisdictional relations on sectors and various other issues.
In looking at that framework, we are talking about implementing a strategy for political discussions and intergovernmental relations.
With respect to political relations, are you prepared to talk equality of government, equality of jurisdiction, equality of law, and equality of the courts? If not, then you will waste a lot of time jumping from issue to issue, and we will not solve anything. We will be in the courts all the time, wasting a lot of money and time in the process. Let us elevate the debate and discussion. Let us bring some dignity and respect to the process, that is all we are asking, and we will treat you the same way.
Judicial relations, political relations, treaty relations, and the recognition of separate societies -- you are doing it anyway, so let us do it formally. That is what our treaties call for, from Treaty 1 to Treaty 11.
What is misunderstood about Treaty 1 to Treaty 11 is that they are not separate treaties. The Crown considered Treaty 1 to Treaty 11 as one major treaty between Canada and the First Nations. All the provisions of Treaty 1 to Treaty 11 impact on economic relations and the economies of First Nations. They are not separate treaty agreements.
Let us take health as an example. When we talk about guaranteeing the treaty right to health, it is not just the medicine chest clause you see in Treaty 6. We take the pestilence and famine clause from the social development provisions of the treaties. Anything regarding education and health is taken from the education provisions in the treaties.
There is a misconception about how you apply and implement treaties, but most people have not bothered to read the text of the treaties or understand their spirit and intent.
When we talk about implementation then, we do not want to waste more time consulting. All the work we have done here, we paid for ourselves. Our agendas do not fit the Indian Affairs self-government initiative, so we cannot get money. Others have received sums of money such as $1.5 million a year for the last seven years. The recipients have still not done as much work as we have done, but we would like to access some of the money.
We would like you to stop giving money to the Province of Saskatchewan too, because that is our money. I will talk about that in a minute.
We are looking at the concurrent and community-based implementation strategies by sector. We want an implementation of our inherent rights on jurisdiction, implementing treaty rights, and we want to move towards -- and we are moving towards -- establishing program standards for all sectors under the law and the jurisdiction of First Nations.
The framework I showed you provides that recognition. The inherit rights of First Nations are recognized by treaty, by the Royal Proclamation of 1763. I helped Judge Dickson rewrite the terms of reference for the royal commission, because they were pretty elementary when I looked at them. I wish that it had been implemented on a much higher level, but that is done now.
Section 35 recognizes inherent rights. Section 25(2) recognizes the inherent rights through application of the Charter of Rights and Freedoms. It recognizes both the individual and the collective inherent rights of First Nations people.
Section 35 itself recognizes the legal status of treaties in the Constitution, so you see, going to the table and suggesting we have to renegotiate all of that is a waste of time. We are saying, "Here we are. We have the responsibility to implement our form of government. We have the responsibility to validate and implement our inherent rights. We have the responsibility to ratify the terms and provisions of treaties that we have made." Now we are doing it. We are not asking. It is already recognized. However, the processes leave a lot to be desired. You can get into a debate at that level and work those arrangements through, but I guarantee they will not go away.
We talk about fiscal relations. I saw Preston Manning bury his head in the sand when it came to the farmers on the Prairies wanting a major subsidy. I am a politician from way back, and I can spot a weasel when I see one. I make no apologies for that comment either, and I have told him so.
We talk about a First Nations economy, and about the financing of First Nations government. Let me tell you what is available in Saskatchewan today. We employ 18,000 Indian people and non-Indian people by community, by band. Keep in mind we are talking about bands having the jurisdiction, the inherent right, to govern. They are political units of the First Nations: the Cree Nation, the Ojibway Nation, and so on. They are also the legal parties to the treaties. We have 18,000 people working for us by band, tribal council, and FSIN. We have another 35,000 people working for us by the province and the feds. That is 58,000 people, and there are only 110,000 of us. You have 15,000 of us in your jails. That does not leave too many people to find jobs for, but listen to this: Of the 18,000 employed by us directly, by band, tribal council, and FSIN, 10,000 are employed in the education sector. Why? It is because we moved in 1971, 1972 and 1973 to organize First Nations control of education. We now control multi-million dollars in education funds.
We have to change the curriculum, though. We are still using the same curriculum that we tried to change when we were there. There is now agreement, and we will teach inherent rights and dignity and respect. For each of those inherent rights, there is an associated duty and responsibility. They are our responsibilities, individually and collectively. We can talk to any non-Indian until we are blue in the face, but if we do not take responsibility for that, then we are kidding ourselves. We can yell and scream at anyone else, but we had better start yelling and screaming at each other if we are not taking the responsibility. When I talk about membership responsibility, that is what I speak of.
We are working to reinstate the traditional social safety net. Let us just look at Canada's policies over the years, for generations: the 1830 detribalization policy; the 1947 25-year plan to liquidate Canada's Indian problem; the 1969 white paper, the author of which is now the Prime Minister; the 1980 Buffalo Jump from Mulroney's days; and now "Gathering Strength" and partnership. Where has it led us?
Chrétien told us what? He said, "In 25 years, you will be implementing the 1969 white paper. "What are we doing? We are implementing every element of the 1969 white paper in spite of all of this. You see?
Where are the agendas leading us? When we talk about these issues and the fiscal relations side, and when I talk about those numbers of people employed, nothing is stopping us from generating the same type of job opportunities by sector in the Province of Saskatchewan under First Nations government and jurisdiction. You tell me what is stopping us, but do not tell me it is dollars.
Do you know how much is available right now for Indians in Saskatchewan alone? $2.5 billion. In Prince Albert, we have over 400 youth on probation, being shuttled between Social Services, Justice and Corrections. We have over 10,000 non-Indians employed keeping us behind bars in that city alone. Can we do any worse? I do not think so. We might reverse it, it would be nice for a change, for a couple of generations or so, but you know we would not do that.
The point is that for our community-based, concurrent implementation strategies, we are looking to redirect and consolidate funding. Let us talk about that for a moment. Senator Adams was asking questions about the role played by Indian Affairs. Do you realize that we are now dealing with 33 federal departments, agencies and organizations that have Indian moneys? That is a nightmare, never mind an individual band member trying to access funding for services or anything that he needs. What about the leaders? That is why we are here all this week. We are trying to find a way of consolidating all the funds. We are all short of post-secondary money. Thirteen federal departments receive post-secondary money for Indians today, yet we can only access that money from Indian Affairs.
When we talk about how we organize that, we are looking to get on with consolidating those revenues by agreements. If it is by sector, yes, we will do it. However, as you can see in that governing structure we showed you, we are talking about political accountability, program accountability, fiscal accountability, and membership accountability.
The Auditor General has informed us through his staff that he has no jurisdiction to audit First Nations. That does not mean we do not want to be audited. We are now in the process of developing a First Nations auditing system under First Nations law and jurisdiction, and we will have a chief auditor who will report directly to the assembly, not to the leadership.
Let us look at the First Nations social safety net, another chunk of money we do not see, $530 billion. Again, the Reform Party and the coalition groups they are funding out there in the Prairies are trying to discredit Indian leadership through fiscal accountability. Non-Indians cannot afford this package out of their tax dollar. They cannot afford $530 billion for supplementary costs for their cost of living in education, health and social development, or their income security. We are saying that, by April 1999, we want a First Nations social safety net established. Mr. Chairman, you do not have this package but we will leave it with you.
We want to implement that package to include our approach to dealing with the arrangements respecting social assistance. We have developed, in draft form, treaty-based income support reform. Again, 30 years ago, back home, we had two employees at the reserve level when I came to office as chief. I took three-quarters of the SA budget and provided economic subsidy in all sectors and created 185 jobs inside a month and a half. Your people walked in and wanted to charge me because they said it was illegal, even though we were told we could provide economic subsidies for jobs. We did it 30 years ago. Now you are trying to do it today. We are the experts at it and we know how to do it. This document speaks to how we can plan with individuals and families as to how they move off social assistance, and how we can give them status in the community by giving them a paycheque rather than an SA cheque. We will leave that with you as well.
Other organizations got as much as $2.5 million two years ago to do this work. In Saskatchewan, that amounted to half a million dollars. We received not a nickel for this work but we have got it in draft form. We are down here this week to try to firm up money so that we can get on with finishing up the work and implementing these initiatives.
With respect to the First Nations economy, we cannot keep talking to government about gaming. By the way, you are enjoying a lot of wealth today because of our taking the initiative to start gaming.
You did not even dare to set up a casino. We did it. We did not ask, we did it. You raided us, then had the nerve to set up your own and take all the proceeds. Not quite, we have four casinos that we own and operate in Saskatchewan.
Why do we have to jump through those hoops? We were threatened in the courts, and subjected to intimidation. This is 1999. We are going around signing international trade agreements. Have you ever read the NAFTA agreement? Do you realize that Canada has reserved a special clause that states that aboriginals cannot take advantage of NAFTA, yet every element of NAFTA affects us? Canada also reserves the right to deal with aboriginal affairs internationally on their terms and conditions.
By the way, the NAFTA is not a negative for us because we want to set up our own international trade and commerce anyway.
We met with the Department of Finance regarding taxation. We want to negotiate a convention on taxation to accommodate the allocation of exemptions like you do for yourselves, federally, provincially and municipally. There are economic arrangements, business exemptions, international exemptions and all the rest of it. That is what is provided for in our treaties. We are exempt. We are not asking you. We are exempt.
We will set up a First Nations tax regime. We will set up our First Nations economy that includes a First Nations companies act. We will certify our own companies and declare their tax exemption status if we so wish. That is our business and those are our affairs. We are not asking the provinces, the Senate or Mr. Chrétien, we are asking Indians. We are asking our people. That is where the rights and powers lie, nowhere else.
On the fiscal side, you cannot tell me you do not have the money. Premier Romanow gets under a billion dollars but he has done a population adjustment based on the inclusion of the Indian population. Senator Berntson knows of what I am speaking. Premier Romanow is now asking for a population adjustment of $184 million. On Monday we met with Finance, to intervene. We want that money redirected to First Nations.
Today, the chiefs sit here and in the meetings we have had and will have all through to Friday.
Do you realize that Indian Affairs is receiving social development funds for levels 1, 2, 3 and 4 health care? We will not receive a nickel of these transfers of health monies to the Province of Saskatchewan in levels 3 and 4 care, and only some nickels and dimes for levels 1 and 2 care. While Senator Berntson was deputy minister, he closed a bunch of hospitals, and Premier Romanow closed the rest of them.
Senator Berntson: We built them.
Mr. Sanderson: I said I would be nice. I am being nice to you; I included Premier Romanow in there.
In our area, two hospitals were closed. Our people are being sent home now after day surgery, elders are being sent home requiring third and fourth level care and there is nothing there. There is no care, no money.
I am not saying there is no money. There is money, but we cannot access it. That is an urgent and crucial issue right now for us. There are no services for our elders in those areas of care. There is no money at all for the disabled.
There is a significant amount of money around. Do not tell me you do not have money. We need to find a way of consolidating that money and eliminating all those middlemen and transferring it directly to First Nations.
We set up a First Nations department of finance and revenue. We are working on our First Nations budgeting system and fiscal cycle. We are talking 1999, not 1899. We still do not have First Nations budgets. You take for granted doing a budget and going to Parliament, appropriating funds. We do not have First Nations budgets based on our standards, needs, and rights.
We can complain and be concerned about off-reserve and on-reserve Indians. To us it is all the same: Fundamental, inherent treaty and constitutional rights are being ignored in terms of fiscal relations. We must elevate the discussion and get on with dealing with the issues.
Many of the dollars of which I speak, hundreds of millions of dollars, are being directed at symptoms: Drugs, alcohol, suicides, and drop-outs. I will not list them all for you. You know them. You pour dollar after dollar at those symptoms. What is wrong with putting the same money into dealing with the cause that creates that frustration?
We have lost political, spiritual, educational, health, and social development control. On and on it goes. All we are saying is we can do it; we need the resources.
If you need help structuring something in your own government -- and Senator Watt was there when I promoted this years ago -- I direct you to page 37 of our report. This is how we view that framework of the treaties, the Royal Proclamation, and the Constitution Act of 1982 impacting on your systems and institutions of government. None of these areas escape the responsibility of section 35, 25, and the treaties, whether we are talking revenue, finance, justice or Parliament.
What we said is there must be a ministry of state of First Nations reporting directly to the Prime Minister's Office. We do not want to be 25th in the line of cabinet ministers or the responsibility of a backbencher in the House.
We want to see that structure changed so that you have the capacity federally to respond to what we are talking about. Otherwise, you will continue to feed the system, as you are now. We must run back here to deal with an organization here, an agency there, a department there, three departments here and five departments there and six departments there. On and on it goes. We have neither the money, energy nor the time.
If we are talking about restructuring -- I see part of your terms of reference is looking at restructuring -- I hope that we are not speaking of structuring First Nations governments and not dealing with the responsibilities to restructure Parliament and the government. Political, treaty, economic, fiscal and international relations should be addressed.
On the land claims side, in our treaties numbered 1 to 11, there is a significant number of outstanding land claims issues.
I, along with others, uncovered years ago total fraud in regard to land claims in the Prairies. I headed an investigation into land claims that showed the deputy minister of the interior and the deputy minister of immigration setting up two dummy companies in Omaha, Nebraska, and in Council Bluffs, Iowa, through a lawyer in Toronto named Bedford-Jones. He forged all the tender documents. He got so tired of signing fictitious names that sometimes he would start signing his own name.
We had a commissioner on our team who was an ex-RCMP member who headed the crime lab of the RCMP for 35 years. We showed him documents that were able to prove forgery and total fraud. The government is now trying to cover up this situation by suggesting that there was no fraud. As a former policeman, I spent five and a half years at it. There was outright fraud. We cannot get it to the table.
We will be asking Mr. Chrétien to finish the settlement and negotiations before he leaves office. We are talking about 416,000 acres alone that were stolen in Saskatchewan through that scam. That affects 128 claims in Manitoba, Saskatchewan, and Alberta. They were pretty busy boys.
The successive governments chose to try to ignore it and to cover it up on a continuous basis. We should like to see it brought up front and dealt with outside of specific claims. If specific claims are too restrictive in terms of the legal requirements under the Indian Act, we want it broadened to include the legal requirements in terms of treaty and we want this fraud dealt with. It is a shame.
We have not exposed it totally because there are court cases pending. In our case, we filed a $100-million lawsuit on each of two parcels of land and we are dealing with that. The government asked that we put it in abeyance pending a negotiated settlement and that is where it sits. At one time we had a validation, the next day no validation; the next time we had partial validation, next day no validation. On and on it goes. They lost our records twice.
The Chairman: How long has this been going on?
Mr. Sanderson: Thirty years altogether. We are just asking that something be done. Justice rolls slowly, we know, but it does not need to take that long. I do not see it in your terms of reference, but a land base is important to any society and any people when we talk about governing.
Land rights under treaty mean that lands occupied prior to treaty are guaranteed. If any Indians, Métis or non-Indians own land prior to treaty, those lands remain their lands. Section 20 and section 70 of the Indian Act of 1876 recognize that. You implemented it for non-Indians but you forgot to implement it when it comes to Indians. In fact, the Indian commissioners came out and surveyed reserves and they included lands occupied prior to treaty within the existing formula. Treaties saved 640 acres per family of five for agriculture and other reserves.
By the way, the 640 acres for agriculture is for agriculture. You are supposed to exclude the swampland and the waters, you could put them within reserve boundaries, but you must exclude them. Do you know why? That is because the Queen, in all her generosity, gave the Hudson's Bay Company a whole bunch of Indian land that they had to buy back for settlement purposes and for creating reserves. They said that we will buy it back at a dollar an acre, but we will not include swampland and water acreage in that calculation. Many of our reserves today are three-quarters swamp and water. They are still entitled to land for agricultural purposes.
On other reserves, for example, you guaranteed by treaty that there would be access to shelter and housing. How? I am not talking to Senator Watt and some of the others I see here, but to some on this side of the table, yes. When you brought in the settlers you set up a system where the lands were allocated for settlement. They cleaned the land off for agriculture and the government made a policy that they could select other reserve lands called timber berths for shelter and for fuel. But the government could not limit the opportunity to select timber berths to non-Indians. They were required to extend it to Indians. Therefore, we have never finished that process in Saskatchewan. We still need to select all that timber and it is disappearing fast.
What we are saying is that it is a legal obligation; it is a trust obligation under treaty. If the timber is no longer there, we expect a shelter subsidy.
A quick lesson on treaties, a quick lesson on sovereignty and government, a quick lesson on inherent rights and fiscal relations. We know it is a big task and a difficult challenge. We are prepared to work with you.
Mr. Eddy Head: I believe you understand the work that we have done in the last few years. It goes back to the direction from our elders, our membership. As you can see, we have done extensive work within our bands and we have done extensive interviews with elders, and the work is not forgotten. We are tabling it and we should like to see it; as I indicated in my earlier comments, we must get it to the stage that you call gathering strength. Mr. Sanderson indicated that we are tired of being surveyed. Those days are gone and the work must begin. Some of the work that we are tabling with you is that. We are serious and we wish to be part of the system of how our membership is handled.
I am very grateful to have the opportunity to discuss what affects us as chiefs. With that, I would be glad to answer any questions.
Mr. Roy Head: I wish to thank the Senate for giving us this time tonight. The government got our people to cooperate and the government must listen to the people. The people are the foundation of the organization, of any organizational government. I am hoping that you will listen to what we said and that the government that we deal with will listen to the people that we represent from our communities and also right across the country.
Mr. Sanderson: There is another area that we wish to table with you. We developed a First Nations government specialist training program over 10 years, which has 16 modules. It is a 52-week training program for executive management and leadership that introduces to young people the concepts of inherent rights, treaties, First Nations government, constitution, fiscal relations and so on. We certified that training program through the First Nations Forum and jurisdiction by community and with the Canadian Training Institutes of Canada. The myth is that the province is non-Indian certified. We are showing that we can certify. We can validate. The training programs can only be validated by us and certified by us because they are developed from a First Nations philosophy and a First Nations world view.
You do not walk into our classrooms and learn about the Indian Act. You walk into our classrooms and you learn about First Nations law. We do not wish to give the Indian Act five minutes during our discussions in the 52 weeks. We have lived with that all our lives.
The training program costs $15,500 for tuition. We looked at your executive management training program offered here at Carleton and in Banff and other places. You pay $14,000 for five to six weeks of executive management training. Our training runs for 52 weeks.
We wish to do a second phase and go in-depth on each of the training modules. The chiefs have asked us to do that. We have certified each module separately; thus, we can deliver by community. Some will be contracting for five or six modules at a time, or one module. We are available for training here, too. We could contract with some of you. That is my commercial for the evening.
The Chairman: This is very enlightening and also makes us reflect on some of our discussions in the past by listening when you make your presentation. As an aboriginal person, I appreciate how you highlighted the important areas of how lifestyles are affected on a daily basis, which I thought was very necessary. I wish we could have more time to talk about the laws of general application which tend to affect us on a daily basis, because non-native people have very little understanding as to what that means. When you have to deal with the general laws of application that is a threat, not only from the federal government, but also from the provincial government.
Mr. Sanderson: On that note, I would mention that one of the more positive things that has happened since 1982 is that our own people are trying to understand what their inherent rights are, and so are non-Indians. I think we should take advantage of that. We can only do it in a positive and constructive way.
The Chairman: Also, unless you have an understanding of your own culture, I would imagine that it would be very hard to try to come up with constructive recommendations. That leads to the point in your closing remarks when you said you are beginning to educate the people about our people. I wonder if we could also be eligible to become part of this. I would imagine that it is not limited only to aboriginal people. It also applies to non-native people if they want to be educated by the First Nations.
Mr. Sanderson: Yes. We have it available to non-Indians. We are also starting to develop a training program for teachers. There are many high school teachers, both Indian and non-Indian, who are interested in being able to teach those subjects in classrooms, but they do not know how. We met with the province in Saskatchewan, and they are interested in looking at something. We have had a number of Indian and non-Indian teachers approach us to see if we can develop a teacher training package that would allow them to come to class to learn how to instruct what we are speaking of. Yes, we are after the general public, not just First Nations or aboriginal people.
The Chairman: I need to be enlightened on treaty land entitlement in Saskatchewan. I felt a process was already in place. What is happening there?
Mr. Sanderson: Treaty land entitlement was limited to 27 bands, and there are 74 bands plus another 18 or so entitled to be bands under treaty, but we cannot get that addressed. We have landless Indians entitled who had signed treaty but still do not have their band, and their reserve was lost under that fraud activity by officials declaring reserves abandoned and unilaterally transferring members to other bands. There are different forms of land issues. Treaty land entitlement is limited to 27 bands. That is the misconception that the bureaucrats created in order to get money out of the government, and they misled both provincial and federal government leaders by suggesting you conclude that treaty land entitlement process with 27 bands. They said that that was it. That is not it. That is only one-third of the bands. Specific claims on land that was lost still need to be addressed.
The Chairman: They do not even have a way of dealing with that?
Mr. Sanderson: We have the specific claims process, but the moneys available are limited. The senator was a deputy premier in Saskatchewan when they had the guts to go ahead with implementing the treaty land entitlement. Thank you. There is much to do.
Senator Andreychuk: I will be brief. I will not go through what is going on in Saskatchewan because I get that from other sources. I just thought, for the record of the other senators, that the key is something you pointed out -- education. You zeroed in on that. That has been of benefit to you because you can do it yourself. You have the wherewithal to do it.
You said that you were quite satisfied with the arrangements they have in the United States. That surprised me. Did I understand that?
Mr. Sanderson: I did not say that. I said if you want to look at the equalities of government, jurisdiction, law and courts, that is one example you can look at. I am not satisfied with it, no. I would go further if I were a tribal leader.
Senator Berntson: You said that you were not afraid of it.
Mr. Sanderson: No.
Senator Andreychuk: Are you in favour of that kind of model in the United States?
Mr. Sanderson: The advantage they have is that they get to the table and are dealing with an issue. You can resolve it because you respect each other's jurisdiction, law and government. You speak of resolving it based on the jurisdictional arrangement or legal arrangement, but you accommodate that through your adjustments and laws and jurisdiction.
Senator Andreychuk: I have not studied that area, but it seems it me that the native leaders in the United States have told me they are not satisfied with the arrangements now because the courts of final resort still do not lie with them, and they are not dispute resolving.
Mr. Sanderson: They stopped pushing that whole area when it got to the judicial system. They did not push on to the federal court level. I would not stop at the level they stopped at, that of tribal courts. I would push on to the national level and work out an arrangement. If you can accommodate French and English judges in the Supreme Court, why can you not accommodate a Cree in the judges' chambers representing First Nations law and jurisdiction? That is a modified process. We need some sober thought there.
Senator Andreychuk: Could you comment a bit on the dissatisfaction that we have heard about urban natives not being accepted by their own leaders back into the band structures? Others are saying there is no difference. What is your take on all that?
Mr. Eddy Head: That is a good question. As a chief, I face that back home and it is very important that I be clear on it as well. Our people living off the reserve come to chiefs for assistance if they run into trouble in the city or town, either in rent, education, health, or SA. In that format, as leadership, our hands are tied. We must reject them because the formula that the federal government placed on the bands across Canada is based on the reserve. That is your formula.
This is what we are talking about here in the system. We are talking total membership. If we are allowed to have total membership in all of those areas, those concerns about urban membership will be adequately dealt with. Right now, we cannot because of the criteria that you forced the membership bands to sign, the agreement to get funding based on reserve membership. I have many members who live in Saskatoon and Prince Albert who come back specially in September and August for education, and that means supplies and medication if they come to our clinic.
If we were to turn it around the way we are suggesting, I think we would not have that concern. It is a big concern, but it is the formula that the federal government has implemented for the First Nations. If they were to allow us total membership, no matter where she or he lives with their family, we would recognize them as members within the band. If there is an election back home, they are not eliminated because of where they live. They are recognized from the reserve. They are allowed to vote and participate. That question is very serious, but it can be worked upon.
Mr. Sanderson: In a nutshell, we do not deal with two things: the Indian Act or any such thing as an off-reserve or on-reserve Indian. As far as we are concerned, they are members of our community and our First Nation. Their inherent rights and treaty rights, no matter where they live, go with them. Our chief and council have responsibility for our members no matter where they are.
Yes, the funding is restrictive. We are here to correct that. We want to deal with that. We want total membership.
Mr. Chairman, there are new schedules of law now in Canada. You remember that in the Constitutional debates, we discussed how to accommodate the different interests of aboriginals across Canada. We proposed new and separate schedules of law. Now there exists a separate schedule of law to implement the James Bay Cree Agreement; it is called the James Bay Cree-Naskapi Act. You just passed the Inuit-Métis agreement for the Yukon. You might soon pass the Nisga'a act, which is coming before you. You have a Nunavut law now for the Inuit.
We have had our treaties for over 100 years. The government is proceeding with first-generation devolution as implemented in 1947 and on. These are transfers of programs and services to provinces and municipalities. The second generation is to eliminate the legal trust obligations and fiscal trust obligations and hand them to the provinces and municipalities. That is also being implemented now.
We are saying that we want a schedule of federal law which scopes out clearly the federal jurisdiction respecting their fiscal, legal and trust obligations by sector and scopes out how they intend, through their law and their jurisdiction, to respect and implement inherent rights and treaty rights. We want a complementary piece of law that recognizes First Nations jurisdiction and law.
We are not asking you to legislate our own government. We will do that. We have the powers to do that.
There is no such thing as an off-reserve or an on-reserve Indian.
Senator Andreychuk: Those comments have come from other aboriginal people to this committee and have not originated with the committee itself. I wanted your perspective.
This committee was instructed in this study, as I understood it, to look at models of self-government that might be workable. Am I correct that, in everything you have said, you mean that we should not be offering up models? You should be offering the models to the government and you are asking for a table of equal representatives to define and conclude those models?
Mr. Sanderson: Our inherent rights and powers include the power to determine our form of government. Our people have to start understanding what those inherent rights and powers are for implementation and validation. It is not up to you as non-Indians to do that for us. You can accommodate us in the process by implementing that equality of jurisdiction, law, government and courts. That is the only solution as we see it.
Senator Andreychuk: We have also had some witnesses who say we should not be negotiating or giving away inherent rights of aboriginals through the existing leadership structures in the aboriginal community.
Mr. Sanderson: We hear non-Indians say that, too, about your leadership and your governments. It is no different. That is a back-handed comment. I apologize for that.
Senator Andreychuk: That does not help us in our determinations. Are you saying you believe there is legitimacy in the structures? Some aboriginals say the present structures were imposed by the non-aboriginal community 100 years ago.
Mr. Sanderson: It is more recent than that. In 1975-76, to implement the 1969 white paper on establishing local governments by community, the federal government selectively hand-picked 30 bands, and then 60 bands, and then 100 bands. Then they had all the bands under their form of local government.
As I told you earlier, we are now implementing the 1969 white paper provisions. We are implementing devolution. Our chiefs and councils, by agreement on funding arrangements as discussed by the chiefs, are restricted to implementing devolution as interpreted and applied by the federal government through your devolution policies. That handicaps our chiefs and councils in politically representing our people properly.
Yes, our people are right in saying that they have problems with current leadership, but we can change our leadership every day and still nothing will change if we do not change the system in which they must work. We want to get away from implementing your policies and your laws and your jurisdiction. We want to replace them with our laws, our policies, our jurisdiction, and we want to implement the rights of our people.
Senator Andreychuk: There has been some discussion that the officials of both the Department of Justice and DIAND have been dealing with these negotiations for so long in their own mindsets that perhaps they are not the best-equipped people to handle this further. There was a suggestion that the Prime Minister's Office, or perhaps an entirely different ministry, should be tasked to resolve these issues, separate and apart from the ongoing administration of the Indian Act. That might bring on some conclusions.
Mr. Sanderson: I have two responses. Any negotiations respecting government relations and political relations, yes, should be initiated out of the Prime Minister's Office and Privy Council, at that level.
We also suggest that there be a treaty commission established as part of an institution of Parliament, like the Auditor General, with independent funding and independence to report to Parliament on the implementation and enforcement of treaties. Complementing that, we should have moneys for treaty protection offices by treaty area. The treaty commission would have treaty commissioners by treaty area to examine the implementation of treaties and the enforcing of inherent rights of treaties.
We see that as a necessary evil of the process because of what you said. We cannot have Indian Affairs there with a treaty commissioner reporting to the Minister of Indian Affairs. We need some independence for the treaty commissioner. The present commissioner is becoming very frustrated because he does not have that level of commitment and support.
Senator Gill: You may need to repeat yourself to answer this question. If you were a member of this Senate committee, would you be ready to make some recommendations to the government? What kind of recommendations would you make following this exercise?
Mr. Sanderson: One main recommendation would be to elevate the whole issue and deal with the equality of government, law, jurisdiction and courts. We should start implementing inherent rights and treaty rights through that process of equality of government, law, courts and jurisdiction. That is the only way it will be done, you see.
I have served in office for 25 years and I cannot draw a pension because it is illegal for Indian leaders to draw pensions. We met with the Department of Finance on Monday. A bunch of Indian leaders are being served third-party demands now because they were working for their communities as council members or chiefs. The employer is forced to deduct employment insurance premiums on every pay day. Some leaders drew unemployment benefits when they lost the election or stepped out of office. Then the employment insurance came along and said that, as former leaders, it is illegal to draw unemployment insurance benefits.
So now we want all our premiums back. There are third-party demands on leaders in amounts of up to $20,000. When we sent our moneys into the pension plan as leaders, our moneys were sent back. It is illegal for Indian leaders to draw pensions and put into pension plans. You senators are lucky.
The Chairman: Does that policy come from the Department of Indian Affairs or where?
Mr. Sanderson: We do not know. The policy is implemented by Indian Affairs but we cannot find any law that says it is in place. We simply do not qualify. People like me, we have to work for a living. We do not have the privilege of drawing a pension cheque.
The Chairman: I am a former leader. Why am I different from you? I do not get it.
Mr. Sanderson: Through the First Nation social safety net, which we want implemented by April 1, there will be no problem. We have incorporated it in there.
Senator Berntson: The witness has answered all my questions.
The Chairman: Thank you for your presentation. We hope to be able to work closely with you when we start moving towards our conclusions and findings. We agree with you that fact-finding and studies are finished. This committee wants to move towards finding solutions to the problems confronting aboriginal people across the country.
Mr. Sanderson: We are quite prepared to work with you.
The Chairman: I am sure we will meet again and we will have more in-depth discussions.
The committee adjourned.