Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 6 - Evidence - Meeting of May 12, 2009
OTTAWA, Tuesday, May 12, 2009
The Standing Senate Committee on Aboriginal Peoples met this day at 9:30 a.m. to study on the federal government's constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Metis peoples, and on other matters generally relating to the Aboriginal Peoples of Canada (topic: issues pertaining to Indian Act elections).
Senator Gerry St. Germain (Chair) in the chair.
[English]
The Chair: I want to welcome all honourable senators, members of the public and all viewers across the country who are watching these proceedings of the Standing Senate Committee on Aboriginal Peoples. This meeting is being televised by CPAC and on the Web.
I am Senator St. Germain from British Columbia, chair of the committee. The mandate of this committee is to examine legislation in matters relating to the Aboriginal peoples of Canada, generally. On April 1 of this year, the committee launched a study to examine issues related to Indian Act elections.
There have been reports of problems with the two-year term of office currently prescribed by the Indian Act. The committee is seeking the views of First Nations citizens, their governance leaders and specialists in First Nations law issues in Canada regarding what changes are necessary to provide better governance for First Nations, including questions of accountability.
For our viewing audience, it is important to note that 252 First Nations bands hold elections in accordance with the Indian Act. This number is roughly 40 per cent of all Indian bands in Canada. We are dealing with this group only. The rest of the bands select leaders as a result of self-government agreements or follow other leadership mechanisms, such as hereditary or clan systems. Here we are talking about the 252 Indian bands that fall under the Indian Act.
[Translation]
Today, we welcome two representatives of the Assembly of First Nations but, before hearing what they have to say about our study, let me introduce the members of the committee.
[English]
On my left is the deputy chair, Senator Sibbeston from the Northwest Territories; Senator Brazeau from the province of Quebec; Senator Lang from the great area of the Yukon; Senator Raine from British Columbia; Senator Brown from Alberta; and Senator Campbell from British Columbia. On my right is Senator Dyck from the Province of Saskatchewan; Senator Peterson from the Province of Saskatchewan; and last, but definitely not least, is Senator Carstairs from the Province of Manitoba.
Honourable senators, allow me to introduce the two witnesses who will address us this morning. Representing the Assembly of First Nations we have Shawn Atleo, Regional Chief, British Columbia; and Karen Campbell, Senior Policy Analyst.
We welcome you both to the committee hearings this morning. We are pleased that you could make the time to join us to share your views on the elections held under the Indian Act. Your remarks will be followed by questions from senators. I am sure Chief Atleo is aware of the process; you have been here before and it is nice to see you again. Ms. Campbell, it is also nice to see you here this morning.
If you have a presentation, Chief Atleo, please take control of the floor. We will listen carefully and hopefully have some questions that build on the issue we are trying to deal with.
Shawn Atleo, Regional Chief, British Columbia, Assembly of First Nations: Thank you, Mr. Chair and senators of the committee, particularly to those new to the Senate. Congratulations and it is good to see British Columbia representation, as well.
It is an honour to be here with Ms. Campbell representing the Assembly of First Nations. I am Regional Chief of British Columbia and from Ahousaht, on the west coast of Vancouver Island, near Tofino, which is the farthest west you can possibly go. The next stop is Japan.
I want to make a presentation about the topic this committee is studying, which is something I am particularly interested in from a number of perspectives. In addition to being elected by the 203 First Nations of British Columbia, I am also the twenty-sixth generation hereditary Chief of Ahousaht. I have two children. Although it may not look like they should be as old as they are, they are 22 and 20 years of age, respectively, and I am interested in what the future holds for them. They are the twenty-seventh generation in a long line of chiefs and leaders.
I am honoured to have served for over five years as the Regional Chief of British Columbia. As you know, the Assembly of First Nations works on behalf of the First Nation governments across the country, and, for a number of years, have held a portfolio on the issue of First Nation governments, which I will speak about later.
The issue of how we select leaders and how we choose those who will represent us is at the heart of our people. I think this particular topic is of particular interest to me, personally, because of the incredible amount of division that has been created since the advent of the Indian Act and the imposition of external processes, including things like the election and leadership selection system within the Indian Act.
It is the heart of that division within our people that I am particularly interested in speaking about with the committee and talking about over the long run; they are things we must overcome. These things are externally imposed on our people.
My father was taken from the community at age four and put into residential school in probably the most blatant description of separation or division within families, often causing tremendous conflict. We heard the Prime Minister rise in the House of Commons, and sitting to the right of me was my father and, to the left of me, was my 88-year-old grandmother. My father is the eldest of 17 kids, all of whom experienced this difficult chapter in our history.
For a long time, we experienced a lot of division within, and separation from, our peoples. I am excited about where we are now and I am thankful the committee is looking at topics and issues like this one because I am excited about what the future holds; the potential for us as a nation and country to remember our roots.
With great interest, I had a good conversation with John Ralston Saul, and read an excellent book of his called A Fair Country: Telling Truths About Canada, calling this nation a Metis nation and reminding this country to remember its Aboriginal roots. Remember the battles that took place with the Mohawks and remember the support from the Maliseets and Mik'maq in the Atlantic. Remember the alliances with the Metis over the course of history.
I think now is the time for this country to take a strong and hard look at its relationship with the original peoples of this land, to work significantly on the issue of reconciliation based on the spirit of a post-apology world, to look at the division created by various pieces of legislation and to take a look at the issue of elections, as well.
In my view, as a twenty-sixth generation hereditary chief, the kind of impacts legislation and elections have had on dividing people and families, whether they live at home in our villages or away from home, links to so many aspects. I am pleased that the committee is looking at this topic.
Ms. Campbell has provided a package of information. A joint discussion paper provides a chronology of discussions that have taken place and identifies key issues. There is a shared notion that we must look at the problems associated with the system when it comes to elections. I understand you want input in specific areas related to the changes in the Indian Act, but I want to look at the broader picture.
We need to look at the genesis of this situation, beginning in 1850 with An Act for the Protection of the Indians of Upper Canada from Imposition, and the Property Occupied and Enjoyed by Them from Trespass and Injury. Canada set out general protections for Indian lands. This act allowed no authority for bands or their leaders to lease or give permission to others to reside on their lands.
In 1857, the Act for the Gradual Civilization of Indian Tribes in the Canadas shifts focus from protection to assimilation. In my view, we have the underpinnings of an economic isolation policy emerging and a notion to absorb Indians into the body politic. Yet I always turn back to those notions about, as some suggest, the three solitudes of this country. In many people's minds, Canada needs to be seen as three solitudes — the emergence in this country of the francophone, the anglophone and the indigenous peoples of this land.
This act was followed, in 1869, by the Enfranchisement Act, which set out to undermine and diminish the collective nature of Indian lands and interests. The act also introduced the imposition of an elective system for Indian bands. Importantly, this act raises the issue, over the course of this discussion on this topic, of the balancing of individual and group rights.
As we go along in a conversation, whether it is the Charter or other issues, we continue to bump up against the issue of how to balance these rights. In my view, our historic governance systems always attempted to balance the rights of individual and the rights of the group. Much of the conflict and division, even among indigenous peoples, has arisen because of that unresolved conversation that needs to take place.
At that time, Deputy Superintendent General of Indian Affairs, William Spragge, stated this measure in the act would result in replacing an irresponsible system with a responsible system. We can trace these sorts of sentiments back to the 1500s and the debates that happened in Spain. Las Casas and Sepulveda were instructed to have a conversation about whether the indigenous people in the Americas were human or not and, as such, whether they had laws or morals. We know now which side of the debate won out. Here, in 2009, we are still faced with a legacy of seeing these indigenous systems as not responsible. Of course, our people did have laws, morals and systems of governance.
Deputy Superintendent General Spragge goes on to say it gave the governor authority to require any tribe or band to elect a chief and council by the vote of the male members, and reserved the right for the governor to depose that chief for dishonesty, intemperance or immorality.
Here we have the beginnings of gender inequality, the paternal aspect, introduced to indigenous systems. In villages like mine, it is the waggle of the finger and, Shawn, have you gone to see your granny and your auntie? It is a system that looks to the women as the leaders, the holders of culture, the teachers of leaders, and as those who carry out and hold — particularly the elder women in our communities — the moral authority for our people.
If examining this issue, we need to go back and understand the roots of some of these challenges. The Indian Act of 1876 consolidated this approach and afforded the Crown legislative authority to determine who would be recognized as an Indian and thereby entitled to benefits.
Even as recently as within the last two years, I was sitting in my village in front of my people. The court had come and we were in a court case on fisheries. The federal lawyers came before the judge and I, as a witness, sitting before my people and my territories, was subject to something that I hope no one in this country in the future will be subjected to, which is a claim that our people, the Nuu-chah-nulth people, do not exist.
While I have 26 generations that I can teach my kids they are inheriting, we still have an undignified relationship, in my view. It is a functional, legal relationship that we need to recognize, which still underpins the conversations we have about how to make life better for all of us.
In 1880, amendments were made to election provisions, limiting the number of representatives and specifically forbidding hereditary chiefs from exercising authority unless they had also been elected. Not only was my father, at age four — the twenty-fifth generation chief — removed from his family and placed in a boarding school — along with others, he subjected to the removal of his language. Many were beaten if they tried to speak in their own language. You can see here a specific strategy to pull apart our communities, how they were structured and were self-governing.
This strategy is not abstract for someone like me. Often, I describe it as a ``walking conflict''; that I am both elected by the 203 First Nation bands, the chiefs in British Columbia, but I also inherit this powerful legacy of self-governing peoples that we can trace a long way back. Some of us take on this internal conflict as something we need to transform into bringing forward the best teachings of inclusiveness, accountability and respect. We have a lot of work to overcome some of the challenges — in particular, between us as indigenous peoples, as First Nations.
Then we have Sir John A. Macdonald bringing in the notion of a municipal-style system that may be adopted. He said it would
. . .have the effect of accustoming the Indians to modes of government prevalent in the white communities surrounding them, and that it will thus tend to prepare them for earlier amalgamation with the general population of this country.
Again, we have this conversation emerging about municipal-style government for First Nations. In many respects, some would see that it makes sense. In our province of British Columbia, we have 203 First Nations and there are 187 municipalities.
Interestingly enough, as an aside, I spoke with a chief of one of the Nisga'a villages. Under the agreement they have, this chief and council joined the B.C. Union of Municipalities. That village brings the number of municipalities in British Columbia from 187 to 188. It was seen to be practical to join that union. Often, municipalities are across the river, across the train tracks or across the inlet from the reserve and the village, but the divide is deep.
I note that situation for this committee to consider. The chief looked at the Nisga'a final agreement, and said, this is something we can do and it makes sense as far as relationship-building goes.
I want to juxtapose that notion with the notion of nation-building. The Nisga'a, the first modern treaty holder in our territories in the West Coast, is very much a nation among themselves. Obviously, they have their modern-day agreement and I suggest that we consider couching conversations about issues like elections in a conversation of nation-building, which groups like the Nisga'a and others have embarked upon. In the Yukon, the Yukon self- governing nations are working on issues like justice, and giving effect to their modern-day agreement as well.
The Indian Act, in the way elections and leadership selection were incorporated, always has been founded on a notion of undermining our historic systems and incorporating new externally imposed systems. This notion has caused tremendous challenges within our communities. This disregard for historic traditional systems and our authority is still embodied in the act today. That is where the effort of this committee and First Nations across the country to participate is incredibly important.
Rules regarding elections under the Indian Act are largely devoid of principles relating to modern and accountable governance put forward by the Department of Indian and Northern Affairs and do not match up with, or respect, our rights or aspirations as First Nations. The Indian Act looks at two systems: election provisions and customary practice. Section 74(1) of the act empowers the minister to change the governance of a band from its customary practice to Indian Act elections. First Nations are brought into the Indian Act elective system by ministerial order. The act has never required the consent of First Nations in this area. This is where the act does not match up with our rights and aspirations. Through the Assembly of First Nations, First Nations look to the international covenants in the United Nations Declaration on the Rights of Indigenous Peoples around the issues of free, prior and informed consent.
We have a conflict not only within our peoples but also with section 35 of the Constitution Act and its protection of inherent rights. As mentioned, 252 First Nations continue to operate their elections under section 74 of the Indian Act. Funding that Indian and Northern Affairs Canada, INAC, provides to First Nations, through a program called Band Support Funding, is intended to provide a broad funding base for the maintenance of local programs and services but there is no specific allocation for elections in that funding formula. First Nations are required to modify their funding priorities every two years to conduct an election. It costs $15,000, on average, to hold an election in a community.
In a ``Cost Drivers'' study of 2006, INAC found that Band Support Funding barely provided a minimum base for modern requirements of governing such as in the area of audits. INAC's own study found that First Nations are provided, on average, with $3,000 to conduct audits when the actual cost is more in the range of $30,000.
As you know, over half the First Nations carry out custom elections whereby they establish their own systems. These communities also are not specifically funded to conduct elections but have more flexibility in terms of timing and the process. I have mentioned a couple of the self-government agreements as examples. An additional 29 First Nations have either maintained their leadership selection system or have successfully established and implemented their own regime through the negotiation of self-government agreements.
To move to a system of custom leadership selection or elections, communities must submit to the approval of INAC and establish that certain criteria are met: for example, the election code must have clear processes for appeal, and the amendment must meet outlined principles of natural justice, ``including fairness and impartiality;'' it must comply with the Charter of Rights and Freedoms; and it must have mechanisms for those who live away from home, off reserve. The move to a custom code must be endorsed by the majority of electors.
It must be noted as well that at no time were community members or leaders asked to endorse a requirement to follow the elections provision in the Indian Act. This system that we are talking about here was externally imposed.
In February, both of last year and of this year, the Assembly of First Nations, AFN, convened a focus group of First Nations representatives. Chiefs, technicians and electoral officers came together to discuss matters related to elections and leadership selection. This year, the AFN also commissioned a study to examine INAC's policy for adopting a community election system and put forward options for reform. Committee members have a copy of the study before you.
The focus group participants identified a long list of concerns with elections, a number of which were of interest to this committee. Many of these concerns related to process issues within Indian Act elections, including the standardization of nomination procedures, term of office, access to voters' list appeals, dispute resolution mechanisms and procedures for recount in by-elections. Specifically with regard to term of office, two years is a short horizon for learning a job, setting strategic direction, planning and implementing a vision. The frequency of elections can create uncertainty for community members and can lead to potential lack of continuity. Many communities would welcome a longer term of office. We know that many are working on those initiatives in their communities.
With our colleagues in Manitoba, there has been a real interest in the notion of a common election day, bringing with it ideas that it would contribute to greater financial and operational efficiency, perhaps respond to issues of transparency, and, as some have suggested, create a greater awareness of First Nation governments and electoral processes. This emerging conversation is happening in the Atlantic, from what I understand, and at every level. The issue here is one of considering how to develop these elections jointly and not as we have historically imposed them on First Nations. The idea is that our people need to be fully engaged and are best positioned to address these issues.
I also want to comment about participation in elections anecdotally. There is a high level of participation in First Nations elections in our communities. Many would argue it is much higher than in municipal, provincial or federal elections. First Nations — and, with my upbringing, I received my first instructions on leadership at age five or so — people have a lot to say about good forms of governance and leadership.
Some may be aware of this work — others will be introduced to it for the first time — namely that for a number of years I worked as chair of a committee called the Recognition and Implementation of First Nations Governments, RIFNG. There is reference to that committee in the package that you have. This work was incredibly fascinating. Some of our top scholars from across the country gathered together and worked with leaders from many different nations to look at what was required to move our communities forward. The Recognition and Implementation of First Nations Governments, the title of our committee and the report, speaks to exactly that subject: the idea of nations rebuilding.
We are not only more than 630 bands but we are more than 350 linguistic groups and 350 nations. In British Columbia, we say; yes, we are 203 bands, but we are also 30 linguistic groups or nations. The early imposition of these systems created divisions between nations. Many nations have reconnected through the emergence of tribal counsels. However, tribal counsels do not always connect with their cultural or linguistic groups. Sometimes, they cross over into other groups as well. I raise these issues to illustrate the divisive, historic nature of this legislation so that it can be contemplated as you look for ideas on going forward.
Some concepts that we raised in the report and in the work the committee performed across the country are ideas like the creation of a First Nation ombudsperson; that is, the idea of having someone to go to. Presently, there is not such a mechanism. The issue from the federal government side is the role of the department and having to address many of the issues raised by an ombudsperson.
There is also the notion of an Auditor General. I raise these things because in March of 2005, in a national assembly meeting in Vancouver, this report was accepted by the chiefs. They asked the Assembly of First Nations to work on implementing certain aspects of this report. We have had an example of such an exercise — specific claims come to mind. The Recognition and Implementation of First Nations Governments sets out the idea of joint policy development. I point to the Specific Claims Tribunal Act as one such example.
First Nations, as we have demonstrated in the specific claims effort, have a strong desire for positive change. There is a real thirst to ensure that our languages survive and that we continue with nation building. I think these conversations link to that desire. In a post-apology world, the conversations are continuing in the spirit and intent of this historic legacy. The notion of jointly working on these issues brings the kind of focus that I think will provide for successful efforts.
In British Columbia, we will see what government succeeds by the end of today with regards to the provincial election. However, prior to the election, and for some time, we have been working on what we refer to as an aboriginal recognition act. Essentially, the act is the B.C. implementation of the effort we are working on nationally.
First, we are working to place in legislation the recognition of indigenous peoples so that people like me or my descendents in the future do not need to be a court of law with someone questioning our nation or the fact that we were here. That recognition should be automatic. In this country now, it is not automatic. It is something we are still fighting for at the fundamental level.
Second, the aboriginal title and rights recognition act that is proposed in British Columbia looks to include First Nations in decision-making. More importantly for me, it also points to the idea of nation building more broadly. I said earlier that we are 203 bands but also around 30 language groups and historic nations. For the Nuu-chah-nulth people of whom I am a part, there are about 8,000. About half of us have homes in our villages on our reserves, and the other half of our community are in towns and cities like Port Alberni and Victoria.
The issue is about the survival of our relationships, and ensuring our languages stay strong. It is also about family. I am particularly concerned about the intersection between these conversations and issues like status. These things divide our families right down the middle of living room carpets. They divide one generation from another. They divide people geographically. Due to diminished resources, we find increased conflict between our relatives who live in the cities and who need to access services like housing or basic services in support of education and they are not able to. We end up in conflict and in competition.
These sorts of things we need to work hard to overcome, never forgetting that, if we applied the kind of political will in 2009 that was applied during the residential school period to do what was done to my father, and calculated and quantified the dollars to bring that forward in 2009, can we make the kind of effort needed in areas such as education as a tool for emancipation and support for language, nation building, family healing and reconciliation amongst our indigenous peoples?
I think that is another question that links powerfully with these questions of governance and how elections are carried out. I think our communities want change; there is a thirst for it. I have mentioned the work we have done that speaks to ideas that our communities raised on this topic. Throughout the course of my time with the Assembly of First Nations, there have also been conversations with traditional systems of governance; hereditary leaders were involved in the AFN renewal process. That process was also contemplated as part of the Recognition and Implementation of First Nations Governments.
We should be forthright regarding a lot of the conflict that happens. It happens between both the traditional and elected systems where hereditary systems are still very much in place. In my village, I drafted a protocol that exists to this day; it has been in place over 10 years. The hereditary chiefs signed it with the elected system so we would work together through what we refer to as this interim period. Often, we are forced to deal with the reality of conflicts that erupt between hereditary or traditional systems and elected systems of governance.
There is a broader challenge, in my view, the underpinning of which is conflict that has been driven into our communities.
To wrap up, I think this issue is about looking to the committee for this conversation in the context of which I have described to consider the notion that, rather than tinkering with the system, there is a real thirst and interest in revising or phasing out the unilateral aspects and perhaps jointly developing a process similar to the specific claims, which, in many ways, was a large step forward. There is a lot of frustration about this issue. I think there is a sense that we need to be careful also about applying a municipal-style model without the full involvement and support of First Nations.
I have shared with you the history. With that history comes a lot of mistrust because of the historic unilateralism that was experienced, and the resulting conflicts and divisions that have happened within our communities. There is a desire for true decision-making — that First Nations to be seen as governments — and to work on this issue from the ground up.
I think our people have the ideas and they have a strong desire. I am particularly excited about finding ways to ensure we support the huge youth population that is emerging in our communities; a vast majority of our population is under the age of 25. Senator Brazeau and I are old-timers now amongst the indigenous population of this country. We would not necessarily have thought that long ago we would see that the vast majority of our population is under the age of 25.
I do not think we need to be driven by fear about this situation. I think we should be excited about the potential contribution. We have not harnessed anywhere near the potential of the indigenous population of this land to contribute to the social, economic and political fabric of this country.
I know this conversation is about elections but, coming from the system I come from — I have been honoured to walk in the role of elected regional chief and to work with elected leaders from across this country — I feel strongly about this topic.
Thank you for the opportunity to offer our presentation. I look forward to any questions and further conversation.
The Chair: Thank you very much, Chief Atleo. I have a list of questioners, but if I may, I would like to lead off.
First, neither you nor Senator Brazeau look to be over 24 years old. I do not know how you arrived at the old-timer deduction.
We speak of linguistic groups, and there are 29 or 30 of them. I will use British Columbia as an example. We are looking at establishing or recommending a system. How do we make this recommendation without being seen as imposing, which is historically what governments have done to First Nations? How do we amalgamate?
Historically, we are well aware that we have 600 reserves or First Nations in this country. That was a policy of the government: Divide and conquer so people could not organize. We are at the stage now where we have to reorganize and, if you are to have a chief electoral officer, an ombudsman and an auditor general, you cannot do this in isolation with a band of 30 people or 50 people; some of the bands are that small.
I am sure you have thought about this issue, but how do we go about it? Do we amalgamate through linguistic groups or geographical groups? Is this amalgamation a possibility? You know this file better than I do; you have lived it. Can you provide the committee with insight as to how we can facilitate this amalgamation? There is no point in discussing something that is totally impractical. A band appeared before us that had 40 members. Half of them were youth and the other half were elders, so that brought them down to about 10 people.
If we want to make suggestions and study this issue, how do we do it in a way that makes sense?
Mr. Atleo: I think the mandate to talk about this issue flows from our work that was tabled in March of 2005. I do not think there are any specific instructions I can recall or think of at the National Assembly of First Nations level. I will go back to our British Columbia context and offer my thoughts.
One hundred fifty years ago this last Valentine's Day, Sir James Douglas brought British Columbia into Canada, suggesting that the lands were unoccupied. Of course, they were very much occupied. As the legislation I have referred to and that we are familiar with was brought into effect, we were moved to communities like mine of Ahousaht.
Ahousaht is one of 14 communities on the federal records, but historically Ahousaht is one of six. We know who those communities are Ahousaht, Keltsmaht, Manhousaht, Quatswayaht, Oinimitis and Peneelth. The idea that 150 years later, we are being asked to amalgamate, I think some of our leaders are saying — I do not mean this for anyone at this table — make up your mind. In the beginning, we were counted as 203 First Nations and now, for reasons of practicality, we are being asked, how do we make that number smaller?
Understandably, First Nations are taken aback with that suggestion. Why should we look at a smaller number? This number is what you created in the first place. We have to arrive at a place where we acknowledge the fact that we still fundamentally have this foundation of non-recognition. If the Nuu-chah-nulth people are not recognized, but at the same time we want to talk about amalgamation for effectiveness, pragmatism and cost savings, it is a difficult ask or request. It is a long stretch from being in a place of non-recognition to being asked to consolidate in some way.
Having said that, we already do amalgamate in many respects. I mentioned the tribal councils. Many tribal councils are already structured around their historic nation allegiances, which pull together linguistic and family groupings, where there is a shared culture and shared land base. I can mention a few. The Nisga'a comes to mind because they signed a modern-day agreement. The Haida are very much a distinct people, along my own people, the West Coast of Vancouver Island. We are 14 bands under the Nuu-chah-nulth, but we are also the Nuu-chah-nulth Nation.
We are international. Like most of the First Nations across the 49th parallel, we have relatives in northern Washington state, part of the Makah Nation. Our efforts are often international.
In British Columbia, we have moved toward this conversation but not in a way where amalgamation occurs only because it is practical and cost-efficient. It is about recognizing that we are talking about nations.
When we talk about nations, it is not only about 14 Nuu-chah-nulth bands — it is about Nuu-chah-nulth people. We have Nuu-chah-nulth people that live both in our villages and away. As I always say in my language, we are either living at home or away from home. We have Nuu-chah-nulth people that live in the cities throughout British Columbia and elsewhere around the world, and we work hard to maintain contact.
The exercise is how to engage all 8,000 Nuu-chah-nulth in an exercise of nation building and decision-making as it pertains to any aspect of our lives, whether it is resource revenue sharing or how we use the land base, including this notion of elections.
In my view, groups, regions or nations have been performing this work in Ontario and other parts of the country. It is an exciting conversation for people like me. Our relationship with the government requires full partnership. Many are going ahead and undertaking this work on their own, outside of any notion of the implications of the Indian Act. I suggest there is potential here because I think Canada under its laws, and the provinces as well, share responsibility for where we have ended up.
I ask that we think not only of the practical application. We can achieve the practical application, in my view, as a result of real recognition occurring concurrently.
Senator Sibbeston: Thank you, Mr. Atleo, for appearing. You come with dignity, and you are well spoken and knowledgeable.
You stated that, as a representative of the Assembly of First Nations, there was a strong desire for positive change, but First Nations ought to be fully engaged and participate. The task that we are faced with is dealing with elections under the Indian Act. Can anything positive ever come out of changing only the Indian Act in dealing with something like an election?
The other matter is the question of appeal. In recent years, there have been a lot of appeals dealing with elections. The appeals have become costly. The system of dealing with appeals in the Federal Court is a clumsy system. Federal Court people are not knowledgeable about First Nations. When dealing with First Nations, it is always good if they know the people and the circumstances, rather than knowing only the law.
It occurs to me that a system needs to be established for dealing with appeals, one that is knowledgeable, efficient and not so costly. Have you given any thought to whether there ought to be a new appeal system when we are dealing with matters like elections? In the First Nations world, there is a movement toward self-government. If that process continues, all First Nations will have dealt with their own issue of elections through their First Nations process. Do you want to comment on some of these things?
Mr. Atleo: The short answer is yes to your point about appeal processes. One point made in the report I tabled, and that report was passed by the chiefs in March of 2005, was the need to put into place dispute resolutions. We do not have those mechanisms. As referenced earlier, there is no place to go and the dispute ends up on the desks at INAC.
Going back to the point about recognition, with full recognition comes an assumed responsibility. In section 35 of the Indian Act, there is the notion of the recognition of inherent Aboriginal title and rights. I have suggested strongly that we still have a non-recognition-based relationship, particularly at the legal level, which is given expression in the Indian Act, through the ministerial authority. A few things come with recognition potentially; mutual recognition of the existence of Crown title, for example.
Again, I speak only for British Columbia on this issue. The idea of agreeing to an Aboriginal title and rights recognition act posits the notion of recognition of Crown title. That issue is not a small one for indigenous peoples to contemplate across this country. When we come back to this idea of being allies more than being subjects of the Crown, I think that notion carries a lot of credence. I want to make that point, coming back to Senator St. Germain's question as well.
The other point is around whether anything can come from changes to the Indian Act. The minister will be charged, as in the McIvor case, with looking at issues around status and non-status. I come back to my earlier points about the deep divisiveness of this act when it comes to issues like status, non-status, on- and off-reserve and elected hereditary systems. These divisions are imposed, inherited, external divisions that were not created by us, yet we are asked to respond to them and accept responsibility for them in an environment of non-recognition. That situation is extremely difficult, I suggest.
Perhaps there are ways in which amendments to acts, particularly if done jointly, can have a positive impact. However, amending acts needs to be considered carefully in light of the full context — that is, the width and breadth of the discussion. In 14 years, it is suggested, some communities will not have status Indians in their membership. At the same time, we are having a conversation about the elected system and the way it currently works for status Indians in that village. That is why it is difficult to pull these things apart. That is why, in March of 2005, we talked about this process as being a conversation about nation building and reconciliation on two levels: first, with indigenous peoples' families and communities; and, second, between the indigenous peoples of the land and the Crown.
Senator Campbell: Welcome, both Chief Atleo and Ms. Campbell. You have a beautiful name, not only the last but my sister's first name is Karen.
I am old, but I have this hope that before I die, we will not have INAC and we will not have an Indian Act. I agree with virtually everything you said. No other person in Canada is supervised or told what to do by a number of people. It is not the minister; it is Governor-in-Council and INAC officials.
At some point, do you say, we will do what we will do? That is what everyone else would do. If a group of people were treated the same way that we treat First Nations, they would say, we will not do this anymore; we will do what is right as a nation and that is all there is to it. Can you do that?
Mr. Atleo: To which nation are you referring?
Senator Campbell: Start with the Nuu-chah-nulths.
Mr. Atleo: Yes, in fact, there are two communities within the Nuu-chah-nulth where the hereditary chiefs expressed exactly that approach. There is an element of taking matters into their own hands and implementing the vision they have for their community and for self-government based on where they know they come from; being pragmatic and practical about the things that have occurred. It becomes a challenge regarding the relationship with other citizens and with governments, because, with municipalities, provincial governments and the federal government, there are no questions, particularly in law, about their existence or their authority. However, we still have on the books in this country the question about our existence and our authority. That is why the Indian Act reads as it does, particularly in areas of governance.
Let me be clear about this issue: The Nuu-chah-nulth do not need the federal government to recognize them as Nuu- chah-nulth. If we are talking about an exercise of recognition in a post-apology world, I hope that this exercise is about the mutual recognition that we are trying to achieve. Many in this country would be surprised to know that we do not have that recognition as a basis upon which to operate. When it comes to this committee's considerations and the Indian Act, particularly around elections, you have, as you have said, the responsibility and the authority all flowing from somewhere else. If that is the case, then the communities have neither the financial support nor the capacity to build things like dispute resolution processes because that authority does not exist. Not only is the authority not there, but the recognition is not there, either. Obviously, we do not have the mechanisms.
We begin on a mutual recognition basis and we start looking at the electoral process overall and maybe piggy- backing, as one Nisga'a chief told me he had done. That is a practical application. He joined the Union of British Columbia municipalities. There is tremendous potential in that approach. He has not given up his Nisga'a nationhood; that identity is solid. However, he says there are a lot of good reasons for him to work with the 187 municipalities in the province of British Columbia. That is a long way to travel.
Not all First Nations in this country, for example those who stand firmly in their treaties, are allies in the minds of many, although they have signed these agreements as allies with the country under whom they are experiencing an act that is deeply disrespectful of the spirit and intent of those treaties. That is why I return to the notion of citizenship, where communities will lose all status Indians within 14 or 16 years. To have this conversation in isolation of nation building can bring us to aggregation. If recognition is part of what is being discussed, then maybe we end up with 50, 60 or 70 — something less than 633, perhaps — as a way forward. We have these communities where there are 30 or 100 community members. That is what you are referring to, namely, the practicality and the dollars and cents; how to do business and be effective.
My earlier comments are broadly about the recognition of indigenous peoples as nations, but sharing with you this objective of how we can make this relationship more effective and efficient. If there is recognition, it comes with accepting responsibility. We then build the mechanisms and the capacity, and we have shared responsibility. That prospect is exciting for me, particularly as a legacy to leave the younger generation.
Senator Campbell: How does ``hereditary'' interplay with ``elected?'' I will tell you why. Last night, I watched an incredible documentary about Wounded Knee. I always assumed that Wounded Knee was First Nations fighting White people. In fact, Wounded Knee was not about that. It was about an incredibly corrupt and vicious elected group of First Nations. Their hereditary chief finally said, enough is enough, and he had the American Indian Movement come in. The hereditary chiefs said: we will not put up with this anymore; we will do something about it.
How does the concept of ``hereditary'' versus ``elected'' work within your nation? How do they come together and how does the system work?
Mr. Atleo: My community of Ahousaht is historically made up of six nations —Ahousaht, Keltsmaht, Mahousaht, Quatswayaht, Oinimitis and Peneelth — not only one. On the Indian Act records you will see only Ahousaht. What you will not see is who we recognize. The head of the household or the oldest person is responsible for the community. That is probably not different from your families; someone in your family is designated as the leader, as the responsible person. For me, training started when I was young, but ceremonies are held earlier than that. There is also room for removal. It is also about paternal and matrilineal responsibility.
Growing up, I would hear about the history of Ahousaht. When the elected system was first brought into play in my village, the hereditary chiefs supported the notion of elected chief and council because the hereditary chiefs in my village do not speak for themselves. The great irony in my work is that when I am home, I do not speak for myself. Someone speaks for me. You will see some correlation in that to parliamentary business.
I drafted a protocol in 1996-97 with the elected chiefs and the hereditary chiefs. The hereditary chiefs hold inherent responsibility for 100 per cent of our ancestral lands and territories. In my village, the band council has responsibility for the 24 reserves under the Indian Act. You will see differences across the country, where chiefs elected under the Indian Act, with the support of their people, have the responsibility for entire territories. You will see variations of what I have described but that is how it is at home.
In Nuu-chah-nulth, you have 14 elected chief councillors who form the board of electors of the Nuu-chah-nulth tribal councils who come together as other tribal councils do. Recently, we had the emergence of the —
[Editor's Note: Mr. Atleo spoke in his native language.]
In my language, that council of hereditary chiefs is responsible for fishing and for the shore. That recent development is an exciting one whereby our historic hereditary system works with the elected system. A footnote to this development is an agreement that the federal government signed recently with my province, with my neighbours, the Maa-nulth people, which are part of Nuu-chah-nulth. The agreement includes a blend of both the elected and the right to appoint. The right to appoint is the right to recognize the hereditary system.
It is not a precedent for this country, through an act of signing a treaty, to enact recognition of a historic system of governance, which presupposes for me that these systems do have merit and value. If it is something the people want, it should be supported, because everything up until now has been about tearing apart historic systems of governance.
I share that information with you because where there is not a good working relationship, there is a potential for conflict. We have seen it; it has erupted.
Many major issues of conflict around the country have often been between the hereditary and elected systems. I am ready to work as regional chief, elected by 203 chiefs, the majority of which are elected, because I want to be part of the solution to overcome some of this conflict that exists between our people. I hope this committee looks at that issue, as well.
Senator Peterson: Sir, you have talked a lot about the challenge of nation building and decision making. However, at the same time, you made the statements that you are continuing to define and defend who you are, as a people, which seems counter-productive. What are your thoughts on how this issue should or could be changed or addressed?
Mr. Atleo: In the B.C. instance and in the report we suggested for a national exercise, it would be the elements that I have been alluding to: a full recognition of Aboriginal rights entitled under section 35, and a joint legislative exercise. I think there is a shared notion that the Indian Act is something that we need to be rid of; we need to put it behind us. However, in the interim, it is all that our people know in their relationship with the federal government.
While those funds are not sufficient in the areas I described, they are all the funds the communities receive. Without them, we would be in deep trouble. I think we need a concurrent exercise of nation building, and we need to pursue economic sustainability for our communities in this country. A number of nations are pursuing that goal as we speak, and are able to augment resources and federal transfers they may receive — or resources for some communities that engage with other levels of government — with economic development.
I do not think the issues of nation building and economic development are mutually exclusive. They are dependent. In B.C. alone, there are, on average, over 100 Aboriginal title and rights court cases that flood the court system. I agree with you: We spend a tremendous amount of energy on the conflict between First Nations and the Crown, more than we spend on pursuing the human potential of working together pursuing revenue-sharing. If there is real revenue- sharing on the ground, then First Nations are in a position to support themselves. One would be hard pressed to find a municipality faced with the same constraints or restrictions that First Nations face as a group.
I appreciate your comments and I agree we are missing out on a lot of human potential in this country by prolonging this effort.
Senator Peterson: In regards to elections, do you think the term of office should be longer than two years?
Mr. Atleo: I can say I cast my ballot in my village referendum to push the term to four years and, unfortunately, we did not have the participation. That is my view. We have been on a two-year cycle, and our poor chief counsellors are running from election to election and there is no opportunity to accomplish any work. That is my personal view.
Again, there is not a broad national mandate for me to comment on for the Assembly of First Nations, but it has been part of the conversation. I will ask Ms. Campbell to chime in on this point and I believe she had another comment to make.
Karen Campbell, Senior Policy Analyst, Assembly of First Nations: Before I say something about that mandate, I will respond to Senator Campbell's questions regarding why First Nations do not get out of the act. Many are trying to do this. There is a mechanism to do so and that is to move to a custom election. More First Nations right now determine their elections through this venue than through Indian Act elections. Using this mechanism offers them some greater flexibility, as you said, to determine for themselves how often they want to hold their elections and by which process they wish to do so.
However, the way it happens now is that using this mechanism is still subject to approval by Indian and Northern Affairs Canada and must meet certain criteria before it can be used. Through the work we have conducted at the AFN for assemblies as well as through the focus groups we held this year and last year, if the policy were to be streamlined or become more of a supportive policy, First Nations see the conditions in place as a gatekeeper or barrier as opposed to supporting them to move from Indian Act elections to true custom elections. That is the first point.
Second, as part of our focus group this year, one chief said he did not see why, under section 35, we do not just declare ourselves as self governing. We do not need anyone else's approval to do so. We have that inherent right, we have always had it and that is not extinguished by the Government of Canada. It is recognized in Canada's Constitution.
The problem that occurs there is exactly as Regional Chief Atleo said: How then does the Government of Canada work with that First Nation? The current practice, particularly with custom or other elections, if there is a dispute in terms of the council, if there are allegations that the election was not fair or if there is some kind of internal division within the community, the Department of Indian and Northern Affairs will not continue to provide funding to that community to the point where, in many cases, the community is placed under third-party management. Therefore, not only does the community not have an elected or hereditary chief and council, neither the chief nor council are able to determine what happens with funding in that community; a third party manages the funds.
First Nations try to move out of the system, exercise their true jurisdiction and create elective systems that work for their communities where they are not turning over every two years and that much more closely resemble how they would do things originally. We see this work across the country. However, that process in itself can create ongoing issues and hardships for the community in how it deals with its primary relationship with the Government of Canada and with INAC in terms of funding to run its own business.
Senator Campbell: On this point, if someone thinks something has gone wrong in an election — whatever it is or wherever it is — that issue goes to court. It does not go to the Minister of Indian Affairs. That is what I am trying to get to. Why are you not treated the same as everybody else? If I have a problem with the election, I take you to court and a judge decides whether the situation was fair or not without any of this, ``too bad — you do not get any money.'' It is outrageous. It seems to me that would be the way to go.
Mr. Atleo: I am not the expert in this area but I think we are touching on constitutional competence about how dispute resolutions, in light of section 35, constitutionally protected and recognized rights and title, can be given effect. On the earlier question about how we resolve these disputes, I think the idea of establishing a conversation about implementing section 35 in areas like governance and how governance structures are chosen would be an extremely exciting conversation; one in which we would not be starting from scratch.
There are large bodies of work that both support the need for it: the Harvard Project, and many reports in this country; the Royal Commission on Aboriginal Peoples, the Penner Report and our report. Senator Campbell, these reports all support the notion of jointly designing something that can help us over those hurdles. I agree they are extremely difficult.
In British Columbia, with the provincial government, if we can move past this fundamental notion of recognition, the flood of responsibilities flows both ways. Mutual recognition seems to be automatic. That is theorizing because an act has not been tabled, nor is there one before the provincial legislature in British Columbia. The issue is very much in discussion form. However, it is worth mentioning because it is based on the body of work that is just like what we did with this sitting government on the resolution of the specific claims tribunal, which has that element of bringing in independence and fairness.
I can point to strong principles in an effort we have already undertaken together. The Assembly of First Nations plays a facilitative and coordinating role with First Nations and governments, so the interaction is government-to- government.
Senator Carstairs: It seems to me we still are not getting it right. Whenever we think there is something wrong, we ask how we amend the Indian Act, instead of reaching into the communities and asking how they think it can work better. The approach is always top-down instead of bottom-up, which is the way we should approach the issue.
However, in terms of election process that Ms. Campbell addressed, the minister has all the power. The minister says: I have determined that this election is invalid; therefore, I will place this particular band under third party administration.
Is there any way in which we can recommend that the minister have some kind of process — that the minister cannot unilaterally make that kind of decision, but would have a panel to hold hearings, which could be public hearings? Since I cannot go to court, as Senator Campbell has suggested, is there another process that can be put into place that would not be this all-or-nothing atmosphere that presently exists?
Ms. Campbell: In terms of the power of the minister in the act, as you have mentioned, the minister has almost absolute power in this area over the First Nations elections. I will not speak to the process of the department. My perspective is they are not excited to jump in, in all cases; for the most part, our conversations with officials show they prefer not to. However, there is not something else in place so that they can stay out of the matter. This responsibility is the minister's under the act.
INAC officials are coming here tomorrow, and you may want to ask them about how they go through those deliberations internally, and how recommendations are made to the minister. That discussion would be interesting.
In terms of what changes can be made to the power of the minister, sections of the Indian Act that deal with elections are interesting in that they are relatively independent from other sections. If we look at membership, which the regional chief mentioned earlier, it is complex and has many ramifications. However, the sections are relatively discrete around elections, and the powers of the minister are specific under the sections on elections and how those are conducted.
In fact, those sections can be repealed as a whole. They can be taken entirely out of the Indian Act. That removal does not affect most of the other business of the act or of INAC. The sections can be replaced with one provision, as the regional chief has mentioned; that the Government of Canada recognizes First Nations' inherent authority to determine their elective systems.
Senator Carstairs: That idea is interesting. If you moved in that area, I suspect there would be a concern among the non-Aboriginal population — a concern, by the way, that I do not share — that maybe you did not know how to accomplish this responsibility appropriately. How do you suggest that we overcome that perception, which is not real?
Mr. Atleo: I will take a stab at that question. Not to be flippant, but we have to look no further than Ottawa city council and councils in the Fraser Valley in the municipal system. We are still laden with this historical notion. Coupled with the fact that the system is unilaterally imposed, it is incredibly difficult for chiefs to support their communities. They are not equipped to support them, not legislatively or financially.
The results are incredible division within our communities and within our families. Conflict results between organizations set up to fight over limited resources. It is a natural way for a country to keep us separated and divided.
When it comes to doing something, Senator Campbell, this issue is about leadership, in my view. This is about those of you entrusted with considering these things to contemplate the context within which the discussion is taking place. The work we have undertaken suggests, as Ms. Campbell references, the idea of a First Nations recognition act mechanism of some kind, developed jointly with First Nations; something that recognizes that First Nations have the jurisdiction.
With jurisdiction comes responsibility. Right now, as we have shared in this committee, the responsibility lies elsewhere; it lies with the minister. First Nations are 4 per cent of the population; they have control or influence over 20 per cent of the land base, which is increasing. The economic contributions of indigenous people in the country will continue to rise; 30,000 are in post-secondary degree programs across the country, with an average age under 25.
Now is the time to embrace the indigenous peoples of this land in a mutual recognition environment that recognizes Aboriginal title exists and, as such, Crown title is a reality in our life as well. How do we reconcile those two? Ms. Campbell suggests that there is a way forward with this issue. We would not necessarily be breaking ground about the conversations; but in a legislative exercise, it would be exciting new territory to consider the notion of mutual recognition. A joint legislative effort is the way forward.
Senator Carstairs: I have a brief comment. I am a teacher by profession. It was my experience that if we did not trust the kids, we did not get anything from the kids. When we asked them to accept responsibility, 99 times out of 100 they accepted that responsibility and they moved forward. Is that what you suggest?
Mr. Atleo: That analogy is excellent in many ways. It is a good analogy around the responsibility part. However, when you talk about the kids, even the term ``status'' historically is one of ward of the federal government. It is the way that children are wards. It is the reason why they can be taken from their families.
There is a correlation there. It is an old perspective that, when brought into the equation, has some merit. We must be careful about that at the same time, and I know you are aware of that.
At the same time I am Nuu-chah-nulth. Part of my complex identity is carrying around a status card, which my kids do. Will their kids carry one around? That is what I am here to suggest is deeply part of this discussion. We are talking about my family; and when we start talking about people's families, we are cutting into delicate areas.
However, I share that sentiment. I was trying to touch on that point. With all the authority lying in the minister's hands — and it is one we face at all levels with all other issues — with recognition comes responsibility. I am excited about the prospect of having my jurisdiction recognized in my territories and, therefore, accepting the responsibility with the rest of the citizens of this country to move things forward.
The principle of that apology is a powerful one. We are still in the spirit of the post-apology time now, the spirit of reconciliation. I ask this committee to consider strongly not only reconciliation with the country, but reconciliation between indigenous families and community members, which is at the core of why I stay involved.
Senator Brazeau: Thank you for coming this morning. I will focus my question solely on the purpose of the study, which is Indian Act electoral reform. You mentioned earlier that First Nations did not consent to the imposition of the Indian Act, and I fully agree. I also believe that First Nations have opposed any attempts at reforming the Indian Act in terms of trying to improve governance over the last several decades.
Let us focus on the latest attempts under the former Liberal government with the First Nations governance act. That act would have allowed First Nations to develop their own constitutions and leadership selection codes, which could have reflected their histories, traditions and customs. That act could have given First Nations the opportunity to develop their own accountability regimes, recourse mechanisms, recall mechanisms, and so on. At that time, in terms of the process — because I was heavily involved in it — the Assembly of First Nations, for example, supported in principle the notion of any attempts at amendments to governance at that time. However, once the process kicked off, then the chiefs within the Assembly of First Nations digressed from their position and decided to boycott the process at that time, claiming that this piece of legislation would have been an imposed piece of legislation.
I do not want to debate whether that legislation would have been imposed, but I think we can all agree that it would have given First Nations communities that opportunity to develop their own codes in terms of governance. I know that the legislation did not cover other aspects that First Nations wanted, but, in terms of governance, it would have given them that opportunity.
Can you comment on why there was resistance to that piece of legislation? Although the legislation per se was not a perfect piece of legislation, it was at least a good start to addressing a lot of the issues surrounding elections and whatnot, and in terms of the minister having too many powers in overseeing those issues. How do we find a middle ground — and, Senator Carstairs mentioned the top-up approach versus the top-down approach — to have First Nations communities seriously consider amendments to the Indian Act in terms of governance and accountability?
Mr. Atleo: I think you reference the notion of imposition as being part of the reason for resistance, or why people were not prepared to engage in that process. I agree with you on that sentiment.
I think that not only the First Nations governance act, FNGA, but all efforts to propose reforms, including our Recognition and Implementation of First Nations Governments approach — and, we signed a political accord under the previous government with former Minister Scott — have not met with a willingness on the part of the current government to engage with us in conversations like this one.
We need to bring forward all these efforts, not throw any of them out to see what elements are of value, and place them into a jointly designed and developed exercise. Our efforts need not be in vain, whether it is the work attempted through the FNGA or the Recognition and Implementation of First Nations Government, RIFNG — I was pleased with at least one element, the Specific Claims Resolution Act, which was one expression of RIFNG. I shared with you a regional example from British Columbia. I do not think any of these things should be tossed out. We have the Penner report and the report from the Royal Commission on Aboriginal Peoples. What is needed is a will to engage in this exercise on the part of all parties. I am interested in seeing if we can accomplish that exercise.
In my view, what is required is the essence of what we have discussed here today, namely, involving the people in, as you described, a bottom-up approach. The Assembly of First Nations is one group that can help facilitate or coordinate that kind of exercise by seeking the support of the chiefs to do exactly that.
To involve the people would be an incredible exercise and, I think, an empowering one. That is, one involving all our First Nation citizens, wherever they reside, to talk about nation building and how we share and accept responsibility for issues of governance. We know too well the conflicts that exist among our people because of the way the structures have emerged. The Assembly of First Nations is one group that emerged over 25 years ago to support the 630 plus bands to come together, representing First Nations chiefs who oversee or are responsible for reserves but who do not have the support to represent their people, resulting in deep conflict among our peoples. We cannot allow that conflict to hold us back — not as indigenous peoples and not as a country. We did not create it, we inherited it. It may not have happened in your lifetime, but I argue that there are things out there that we did not create like climate change. There is a responsibility to address these things for future generations. What will we leave them with: an ongoing legacy of not being able to deal with this issue? This should be the time and the generation where we do away with the Indian Act; get it done. We have said this over and over again through the course of history.
Can this be the time we get there? I think this committee can have a significant say in and contribution to helping us move along those roads. I appreciate your comments and I share the notion of that historical sense of something being externally imposed. The issue comes down to deep mistrust. The exercise should be a building exercise among governments, indigenous peoples and Canadians as well.
Senator Brazeau: I do not understand why the Assembly of First Nations decided at that time to boycott the process or to resist amendments to the Indian Act to bring about increased governance and accountability when, at the same time, the Department of Indian and Northern Affairs conducted a poll on reserve that suggested that over 50 per cent of First Nations citizens living on reserve supported that piece of legislation.
Having said that, would you, as a representative of the Assembly of First Nations, or have you, in the past, ever proposed that the minister look at the idea of holding a referendum amongst First Nations citizens to see if they wanted amendments to the Indian Act or, perhaps, even elimination of the Indian Act?
Mr. Atleo: I have not myself; I do not know if others have. I think the notion of referendum goes to the idea of inclusiveness. How is it that we include the people? The topics that are in front of us, both the election issue and the status issue, whereby some communities will be without enrolled status Indians within a decade or two is a big challenge that speaks to the need to include and involve. The best of our teachings is that all voices need to be heard but, more importantly, understood and included. I am not sure that other forms of mainstream elected governance can suggest strongly that they hold superior notions to that historic indigenous governance. We have a lot to offer. We need to bring that contribution to bear.
The idea of referendums is one that, if the process of participation is not working and is not as thorough as it needs to be, that is when to go to things like referendums. The real question is this: How do we include all citizens in participating and shaping their governance? That is what I am excited about. We are not only 633 Indian bands across this country. We have well over 50 indigenous nations. It is time to work hard on the rebuilding exercise and to undo the disconnect that has occurred over the course of the last several centuries. That question belongs in a broad conversation about how we include our people fully.
Senator Brazeau: I have been a strong advocate for the elimination of the Indian Act and to focus on true nation building, as recommended by the Royal Commission on Aboriginal peoples. In my situation, being of Algonquin dissent, we are nine Algonquin First Nations communities. I have always supported and encouraged some of the leadership within those nine communities to try to amalgamate and start the discussion that needs to be started. I have encouraged them to look toward nation building so they can reform the true historical First Nations as they were prior to the implementation of the Indian Act.
The challenge is that many of these leaders are afraid to make that change. I will be blunt: They are afraid they will lose the power over the people, the perks that come with being leaders and the funding that comes from Indian and Northern Affairs Canada. Everyone is accustomed to their own little niches established by the department. I understand that fear. I do not want to belabour that discussion but I think we both agree on that point.
As Senator Campbell mentioned earlier, why do we not just do it as First Nations peoples? We do not need money to start consulting people and to bring people together to talk about that greater notion. If we look at the self- governance agreements signed by the Government of Canada and the interested First Nations groups, those groups came together, held those initial discussions and presented the Government of Canada with a plan: This is the route we want to go; this is what we want; and these are the types of jurisdictions we want over our affairs.
After that process came the necessary capacity funding to put the mechanisms in place and to implement the processes that the First Nations in question wanted.
I am trying to arrive at the solution. From your vantage point, how do we engage people to move on with this process?
Mr. Atleo: I think you hit the nail on the head when you suggest we get on with it and say: This is what we want. A relationship needs to be built, whether it is the First Nations Governance Act, FNGA, or other historic attempts that were not based on full recognition, so that our people do not have to go to court to prove they exist in this country. That recognition is still a major stumbling block.
For me and my own home community, to ask to leapfrog over that issue and to engage is a tough thing to do when we have sat in a court of law and had a federal government lawyer question our very existence as a people. I think that issue is still our major stumbling block.
If we were to move on with this exercise and have it be about full recognition, then issues like citizenship, for example, come into play. Then, my people as Nuu-chah-nulths are charged with determining who is Nuu-chah-nulth, not the Indian Act. I feel for Sharon McIvor and her efforts to ensure that her descendents are recognized. This issue of status and non-status is a double-edged sword. The issue can be incredibly divisive.
I think we should support the chiefs that I represent in British Columbia, who are hard-working, caring, honest people working within a structure that does not support them in the way that we should support them. We should support governance systems in our communities. That support will go a long way when we can begin to address that issue of real recognition and jurisdiction. When we talk about giving expression to the issue in my territories, if our village and the neighbouring village have that discussion, then the realities of the next day kick in and we have to deal with the sewer, water, housing, education and all other practicalities of governing a community.
In the end, the issue becomes about reconciling the relationship with the Crown and, in my view, that reconciliation can only be accomplished in a full and joint manner. We cannot repeat the unilaterally imposed notions we have experienced over the course of our history. Those notions have created deep divisions amongst us as Aboriginal peoples.
In B.C., it took the three provincial First Nations organizations coming together before we could reach a point of talking about the example of our people moving towards nation-building, which brings with it aggregation. It is natural.
Aggregation is not the main impetus but it makes sense, does it not, to talk about the efficiencies of working together as a nation as opposed to, for example, 14 Indian bands within the Nuu-chah-nulth? There are economies of scale, economic development and revenue-sharing potential but, more importantly for me, there is the internal recognition amongst families who have been separated. It was not our choice that some would have the language they speak and some would not. It was not our choice that some would grow up with their grandparents in their villages and go out fishing, like I did, and those who would not. It was not our choice that some would become adults in California because they were adopted at birth and are trying to find home — we did not create that. None of us in this room made those choices. The indigenous leaders of this country did not make them.
However, we are charged with dealing with the results. This situation is something we cannot allow to prolong, particularly when we have incredible forces coming our way like the issue of status and non-status. We cannot allow that history to get in the way.
Senator Dyck: Thank you for your presentation. I am from Saskatchewan. I am a Bill C-31 Indian: I had my status restored and my status will not pass to my offspring. We were talking about nation building and I think it depends on two big factors. First, we need the resources to carry out what we want our nation to do. At this point in time, a lot of those resources seem to come mostly from the Department of Indian and Northern Affairs. The department controls the purse-strings. Second, we also need the members.
If the general public were asked about elections, they would probably see a lot of experience in terms of the political organizations. I will use the Assembly of First Nations as one example. There is a lot of expertise in terms of electing members.
In Saskatchewan, we have the chiefs and councils and we have the Federation of Saskatchewan Indian Nations. From there, we elect people to the Assembly of First Nations. Obviously, our people have a lot of experience within the electoral system.
However, that system is really not recognized by INAC. INAC comes down at the bottom with the dollars and says to the chief and council: I no longer recognize you and you are under third-party management.
In terms of structures, then — in terms of an electoral system — do you see a role for organizations like the Assembly of First Nations and the Federation of Saskatchewan Indian Nations, FSIN, in this conversation as to how we should amend the Indian Act with respect to elections at the level of chief and council? Those elections seem to be the only ones that are recognized because, again, INAC is the central focus here. How would that organization play a role?
You made reference to the specific land claims and how a body or process is defined to include those kinds of organizations. What do you think should be done here in terms of revising band elections?
Mr. Atleo: I think the matter of specific claims stands as an example of an approach or process whereby, based on a willingness on the part of Indian and Northern Affairs Canada to pursue a joint process, we sought the support and mandate from the chiefs of the assembly, which we received. We had to refresh the process many times over. It was something based entirely on the body of work — on the recognition and implementation of First Nation governments. In other words, there was a previous mandate where the chiefs had said: Yes, we need to pursue joint legislative exercises and joint policy development exercises.
I think that is the essence of our presentation: If we do pursue something, we discuss it jointly, we couch it in the mandates that I know we currently have and we pursue that further mandate to pursue a joint exercise in the area of elections.
Also consider having a conversation, as we did with specific claims, on resources, which naturally form a part of the conversation, whether we refer to INAC resources or whether we enter more broadly into conversations based on full recognition of resource-revenue-sharing. In that way, communities have resource revenue to pursue the issues.
Within Saskatchewan and the AFN, you are right: There is a lot of experience in electoral processes. Like FSIN in Saskatchewan, in B.C. we now have what is referred to as a leadership council. To be clear, I see my role as regional chief, particularly with my colleagues at the Union of British Columbia Indian Chiefs and the First Nations Summit as being advocates to help coordinate, facilitate and support chiefs as leaders of First Nation governments and to engage in discussions with government.
In reference to your personal experience, I think about the villages that I visit and the concerns that people had with Bill C-31 causing the divisions. Villages had new membership on the rolls and wondered where the money would come from. Again, division was created in the conflict over money. Even though we are from the same nation, from the same roots and families, we have this deeply divisive status that exists among our family members and communities. I suggest that Canada shares a responsibility in how we are behaving when it comes to the treatment of indigenous people in this land. An exercise of talking about First Nations governance cannot be pulled apart from conversations around citizenship.
In relation to status and children, I face the same thing with my children and potentially their offspring. They have Ahousaht lineage and they are being raised Ahousaht. My mother is a German immigrant. Her late father was interned in the war on Vancouver Island; he worked on a merchant ship. That is the story of this country. That is why I referenced John Ralston Saul's book earlier, that this country is an Aboriginal country based on Aboriginal values. He called this a Metis country.
I am excited to see this committee tackle these challenges and help us overcome these issues.
Senator Dyck: I have one other quick question. What proportion of First Nation communities would you say are unhappy with the electoral system as it now stands under the Indian Act? Is it the majority?
Mr. Atleo: Maybe I will ask Ms. Campbell to respond because she was involved in the sessions that were held.
Ms. Campbell: I do not have a number or proportion I could give you in terms of First Nations that are not satisfied with the current Indian Act election system. However, I can say, both anecdotally and through the research we have conducted, any conversation we have, either with a First Nations leader or First Nations citizen, they identify an issue with the way those elections are run. First Nations have tried to come up with creative solutions as much as they can to deal with these issues. However, the structure that is in place under the Indian Act is not one that works for First Nations.
Senator Raine: Thank you and welcome to the committee. I am interested in two things. First, it is hard to imagine one format for elections that would fit every situation because the situations are all so different.
In your experience, Chief Atleo, with some of the smaller communities made up of family groups, have they ever held a system of elections where they have representatives representing their families that would then sit around a council table and come to consensus?
Mr. Atleo: Yes; even under the modern Maa-nulth final agreement treaty, in essence, several of the leaders of each community have the right to pursue their system in negotiated agreement with British Columbia and with Canada. My relatives at Huu-ay-aht in Bamfield near Port Alberni, for example, are utilizing their system, which is the system I come from, the hereditary chief system. Those systems are exactly that process. They are about the house coming together and having raised young ones knowing what the standards and expectations of the house are, whatever house they come from. I come from the house of Glaakishpilth. I have shared with you the life of training one receives one is considered a future leader. They are ceded in traditional ceremonies called potlatches, or in my language, kitsluulthla. That is what potlatches were always for; they were for conducting business, not only exchanging gifts. There was always a purpose. A kitsluulthla in my territory is the ceding of the head of governance for that house. No heads of governance ever work on their own. We have our forms of the Senate. We have our forms of dispute resolution mechanisms that are applied, and they are still in place today.
My role as hereditary chief today is completely voluntary, unlike the elected chief and council system. The role is voluntary because we care deeply about the fact that we come from these systems.
I raise this point because it is a good example of the old system making its way and having some interplay in a modern era with the federal and provincial governments, where there is mutual recognition and support for the need to maintain an old system. If a chief does not performing in the manner in which the chief should, then that family has the right to remove and discipline that chief, et cetera.
We find these practices all across the nation. They do not necessarily show up on the decision-making books of Indian and Northern Affairs Canada. In some cases they do. Resurgence is occurring, and there is a desire for it, in my view. Senator Brazeau made reference to this notion, as well as to the notion of how difficult it is. Again, we inherited these systems, and they have been in place for some time now.
However, I will come back to that notion for the whole committee that there is still a strong interest in reform and moving on this issue. We still have a strong mandate. Mind you, we are all under the notion that the communities themselves have the right to a final say about this matter, not me as regional chief or Ms. Campbell, or me as part of the Assembly of First Nations. The excitement is in how we can support these conversations happening in a directed way.
Senator Raine: I am happy to hear that there is resurgence. I was worried that you have a chief and council that are tasked with dividing up revenue they receive from the federal government without enough to go around, and an awful lot of opportunity for fighting and for people feeling that they did not receive their share, or whatever.
I am reminded that Chief Clarence Louis said that to be a true and free First Nation, you have to be economically independent from the federal government. What I am excited about, and I agree with you 100 per cent that it is time to move forward, is that there are so many well-educated young people coming forward, ready to step in and take responsibility for moving forward and raising money. In the end, the money comes out of someone's pocket, and it is important that the responsibility for that also be shared by the First Nations. Can you comment?
Mr. Atleo: I am happy to hear your comments. Thinking about the part of B.C. where you come from, where you stay and where you work, the 100-year anniversary is next year. In 1910, the chiefs in the interior of British Columbia petitioned Sir Wilfrid Laurier and created what is called the Laurier Memorial. The essence of all the treaties across the country, and the essence of that memorial in 1910, is mutual respect, mutual recognition and shared prosperity. The Laurier Memorial says that we should be as brothers — I am not sure if it says, ``and sisters.'' If it does not, it should. We should be as brothers and sisters and make one another great and good: It went on to talk about revenue sharing and sharing the share the wealth of the land.
I completely agree. I think these activities are concurrent. I agree with the quote from Chief Clarence Louis. In fact, he stands as a role model. He need not speak because he has demonstrated what economic self-sufficiency can do. It is what the Harvard report and Penner report said.
I strongly suggest, as well, a piece of mutual recognition work that we at this time in history can conclude. These things do not need to be mutually exclusive. We can undertake them at the same time: move forward on the recognition and implementation of First Nation governance; give effect to section 35 in honour of the Crown; have that shared responsibility Senator Campbell was alluding to; but, more importantly, support people to move on in their lives. Social issues are still huge. The legacy of the residential school is not going away. I can share with you my own personal anecdotes, as other indigenous people can. It will take us a while. We will need to walk together, as far as overcoming those challenges in our communities.
I share your enthusiasm. I am excited about this time, and I would love for this to be a journey that we make with Canada. As I said, that is the essence of the Laurier Memorial and it is the essence of the treaties. We have the 100-year anniversary of the Laurier Memorial coming up next year. We need to make everyone great and good, as was suggested back then.
Senator Raine: I have another question, as I do not often have the opportunity to talk to someone like you, especially with your experience.
In this process, confidence needs to be built on all sides, and I suggest it is confidence from the grassroots in your communities to their council and leadership on up, as well as confidence from non-native people in what First Nations people are building.
With respect to the municipal legislation currently in existence, there are many legislated aspects that control accountability, finance, how the money is dealt with, transparency and all of those things. You said something about First Nations objecting to having to meet certain criteria when moving forward in terms of governance changes. However, I would think that those criteria are good for everyone because they give people the confidence that the system will work in a fair and just way.
The exercise we are going through now is to come up with those criteria that people at the grassroots level in the First Nations communities want so they can have confidence that they are being well-governed and that everyone agrees with the criteria. Is that where we need to go next?
Mr. Atleo: I think there is a strongly shared notion about ensuring accountability and things like transparency, fairness, creation of dispute resolution mechanisms, et cetera. To be clear, I think there is a strong shared notion about those things.
What is important is how we go about crafting this accountability. As our work under RFING suggests, it needs to be done jointly. First Nation governments need to have full and meaningful participation based on the latest expression of common law, which talks about consultation and accommodation.
The Assembly of First Nations can play a supportive and facilitative role, in my view, if we receive instruction from the chiefs to do that. We currently have a mandate on the work we have done on this area, a strong body of work.
I want to make that point clear; with respect to the idea of standards or criteria, I know in my community we have those standards and criteria. Some of them come to us in the Indian Act, but most of them come within our traditional law of how we would conduct ourselves in my community, as one example. We have not had the full conversation of how to bring the best of our traditional systems of governance on which this country and the American Constitution are based, by and large. The experience of this country as a fair and peaceful country is based, in the minds of many thinkers in this country, on the early experiences and interaction with Aboriginal governments. Why not bring those experiences forward based on full recognition and embracing the process and doing it together? That is something I ask that we strongly consider.
Senator Raine: I have one last thought. As a Senate committee, we are not Indian Affairs or the government totally; we are only a committee of the Senate. I think we are in a unique position to help in seeking these criteria, if you like. We would do that first by listening.
I think that is where we need to go next as a committee, and we would hope to do that in conjunction with the Assembly of First Nations, but also by talking directly to the people, as Senator Brazeau always brings up. We need at least to hear the voices of the average people of First Nations communities.
The Chair: Honourable senators, I thank Chief Shawn Atleo. I think the history of this committee will show that we are in a consultative process. We will work from the bottom up, and we need the support of the AFN. Your organization is important in the overall process, Chief Atleo.
I thank you for your presentation. I thank Ms. Campbell for her input into the discussions. I need a motion to file the material that you presented as exhibits with the clerk. Can I have a motion?
Senator Campbell: So moved.
The Chair: It is moved by Senator Campbell, seconded by Senator Dyck.
Honourable senators, the next meeting of this study is scheduled for tomorrow, Wednesday, May 13, at 6:30 p.m. The committee will hear from representatives of Indian and Northern Affairs Canada. In my absence, Senator Sibbeston will chair the meeting.
If there are no other comments, I would like the members of the steering committee to meet briefly after this meeting. I thank you all for your participation and look forward to our next meeting. This study should be interesting.
If there is anything, Chief Atleo, that you can come up with that would help us in coming forward with recommendations and that would be constructive to the overall process, we welcome your input before we reach the report stage. Because we are finished here now does not mean we would not welcome your further input.
Mr. Atleo: We will do that. Thank you to the committee. My final thought is with respect to that report that you authored on the implementation of treaties. We had a conversation. If we think back, you start from the end result, from the treaty implementation concept, treaties signed both recently and a long time ago. If we work backwards from the essence of that report, that piece of work is also an instructive and important one that will make a big contribution to this conversation as well. I thought of it only as you were wrapping up. Thank you all for inviting us here today.
(The committee adjourned.)