Proceedings of the Standing Senate Committee on
Issue 11 - Evidence - June 10, 2009
OTTAWA, Wednesday, June 10, 2009
The Standing Senate Committee on Aboriginal Peoples met this day at 6:35 p.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.
The Chair: Good evening. I would like 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 either on CPAC or possibly on the web.
I am Gerry St. Germain. I am from British Columbia and I am the chair of the
committee. The mandate of this committee is to examine legislation and matters
relating to the Aboriginal Peoples of Canada generally.
On April 1 of this year, the committee decided to launch a study to examine
issues related to the Indian Act elections. The committee is looking at
outstanding concerns related to the Indian Act elections systems, including the
two-year term of office for chiefs and council as currently prescribed by the
act. We, as a committee, are seeking the views of First Nations leaders,
Aboriginal organizations, First Nations people, as well as experts in this area,
regarding whether and what changes should be made to the Indian Act elections
regime in order to provide better governance for First Nations, including
strengthening political accountability of their leadership.
For our viewing audience, it is important to note that 252 Indian bands,
roughly 40 per cent of all Indian bands in Canada, hold elections in accordance
with the Indian Act. This study on elections processes focuses on those First
Nations whose elections are held under the Indian Act. The other First Nations
bands select their leaders by way of custom or as a result of their
Before listening to our witnesses' views about the electoral process under
the Indian Act, let me introduce to you the members of this committee.
Starting on my left, we have the deputy chair, Senator Nick Sibbeston from
the Northwest Territories; next to Senator Sibbeston is Senator Patrick Brazeau
from the Province of Quebec; next to him is Senator Bert Brown from the Province
of Alberta; next to Senator Brown is Senator Daniel Lang from the Yukon; and
next to Senator Lang is Senator Lillian Dyck from the Province of Saskatchewan.
On my right is Senator Robert Peterson from the Province of Saskatchewan; and
last, but not least, is Senator Sharon Carstairs from Manitoba.
Senators, allow me to introduce the witnesses. We have, from Manitoba
Keewatinowi Okimakanak, MKO, Louis Harper, in-house legal counsel; I believe I
am correct on that. This organization is Manitoba based and was invited to
appear during the recent committee trip but they asked for more time to prepare.
We are pleased to give you, on behalf of MKO, the opportunity to present your
views to us this evening.
Welcome to the committee. We are pleased you could make time to join us and
share your views on the elections under the Indian Act.
Your remarks will most likely be followed up with questions which I hope you
are prepared to respond to. Louis Harper, the floor is yours.
Louis Harper, Legal Counsel, Manitoba Keewatinook Ininew Okimowin:
Thank you, Senator St. Germain. I work with Manitoba Keewatinook Ininew Okimowin
which is a northern First Nation organization.
First, I want to state that Grand Chief Garrioch could not make it because of
the outbreak of H1N1 in Manitoba. He had to stay behind and asked me to be here
today on his behalf.
I have a prepared presentation which I will now begin.
On behalf of the chiefs of MKO, Manitoba Keewatinowi Okimakanak, I thank you
for the opportunity to share our views relating to the Indian Act elections. As
an organization, MKO represents 30 First Nations in Northern Manitoba who are
signatories to treaties 4, 5, 6 and 10. The traditional territories of our First
Nations cover approximately three-quarters of the lands and waters of Northern
First, I want to state that we, as First Nations people in Northern Manitoba,
regard our treaties as sacred and we stand by the relationship that our
forefathers established before us. We entered into treaties as sovereign
nations, and the treaties attest to our sovereignty today. Her Majesty's
representatives told our people they would protect our lands and to sign
treaties with them. We hold the Queen as our trustee today.
We also say that these treaties cannot be altered as to diminish our rights
at any given time, and that consent by the First Nations is required before the
solemn promises made in the treaties are changed. In this way, dialogue and the
duty to consult with respect to treaties are ongoing.
We respectfully urge the Canadian government to ensure it holds its
obligation and commitment to honour treaty relations. We would also like to
emphasize that MKO First Nations in Northern Manitoba also stand by the
principles of the United Nations Declaration on the Rights of Indigenous
Peoples, in particular article 37(1), which states:
Indigenous peoples have the right to the recognition . . . of treaties .
. . and to have States honour and respect such treaties . . .
The Indian Act has been a long and bitter experience to our First Nations. At
its conception, we all know its purpose — that is, to civilize First Nations to
European norms, to direct them on how to live with the newcomers. Although not
appreciated by many First Nations because it imposed foreign laws, the Indian
Act, however, safeguards the residue of First Nation governance rights. It
safeguards our inherent rights and treaty rights to some extent — for example,
the treaty right to tax exemption.
Definitely it is our opinion at MKO that the Indian Act infringes on our
right to self-government, but at the same time, as I previously stated, we are
cautious in amending the Indian Act because it recognizes some of our existing
rights embedded in the legislation.
We view the proposed amendment of the Indian Act as it relates to elections
as a continuation of regulating our people. As you know, we are the most
regulated people on this earth.
In the process of tinkering with the Indian Act, it will have an effect of
limiting our right to govern ourselves as we see fit. As a solution, we
recommend that the Government of Canada negotiate self-government with us so we
can establish our own governments, our own systems, and implement our own laws
such as our own election law. Maybe this can be done by way of a new legislation
that recognizes our section 35 rights.
In the alternative, if you are looking at interim measures such as amending
the Indian Act, we urge the government to recognize our custom elections under
the current regime and ensure these systems are resourced adequately.
As we previously stated, our premise of any proposed legislation or amendment
to the Indian Act will have the effect of diminishing and abrogating our rights
and, conversely, will empower those that made the legislation. As you are
probably aware, we want to avoid further erosion of our inherent and treaty
rights. Instead, we recommend a process or processes that will reinstitute and
recognize our governing powers, including our customary laws.
Our customary laws come from the Creator which are not negotiable and should
be honoured and recognized by both the federal and provincial governments. We
feel this would be a good starting point in reconciling section 35 rights. Many
of our First Nations desire community custom elections, which MKO supports and
can be built upon for the purpose of electing our leaders.
Of course, we prefer an opt-in clause, if it is done through the Indian Act
amendment. In our region, we have approximately 65 per cent of our First Nations
under band custom. As you are aware, the Minister of Indian and Northern
Affairs, through an order, allows for community custom elections. At the same
time, however, the minister can revert, through his discretionary power, a
custom election to an Indian Act election under section 74(1).
With regard to this aspect, MKO recommends that the Minister of Indian and
Northern Affairs consult with First Nations to find alternative ways in dealing
with issues under the custom election prior to invoking section 74(1). MKO First
Nations have always supported the mobility of treaty rights: that our treaty
rights apply regardless of residency. The Corbière v. Canada decision
supports this notion in that our rights extend beyond the boundaries of our
communities and reserves.
As we all know, in Corbière v. Canada, the election process under the
Indian Act allows for the off-reserve membership to vote. MKO supports this. In
fact, our recent survey indicates that all MKO First Nations who elect their
chief and council through custom election allow off-reserve member
With regard to Esquega v. Canada — the Gull Bay decision — and section
75(1), MKO recommends that, before any legislative amendment is contemplated by
the government, the First Nations and off-reserve First Nations be consulted to
determine this very issue and to ensure proper processes and rules are
MKO has reservations with the federal court with regard to the Gull Bay
decision as it has major governance implications which can potentially create an
imbalance of power in favour of off-reserve membership and may impair First
Nation rights in the process.
The Indian Act states under section 78(1) that a chief and council are
elected for a term of two years. It has become a common belief among our people
in Northern Manitoba that a two-year term is not enough time to fulfill the
mandates of our leadership and, as a consequence, brings instability and
economic uncertainty in our communities. Our experience in Northern Manitoba is
that community custom elections which allow more than two-year terms are
satisfactory to those First Nations.
It definitely brings more assurances in developing and completing new
initiatives and projects, therefore bringing economic viability to our
communities. Needless to say, our people in our regions support an increased
tenure of office.
The Indian Act and the Indian Band Election Regulations have very defined
rules with regard to the selection of our chief and council. They define who
qualifies to run for chief and council, they provide training for the electoral
officers, provide funding for the election process and are compliant to court
rulings, such as Corbière v. Canada. INAC, Indian and Northern Affairs
Canada, also acts as a quasi-judiciary to hear appeals and make decisions
relating to those appeals by First Nation elections. The federal government can
also set aside elections.
This complex system is adequately resourced by the government. Therefore, MKO
recommends that equal funding on community custom elections be made available to
ensure accountability in the custom election processes.
In conclusion, we also call on the government to consult with the First
Nations before any changes are made with respect to leadership selections. MKO
believes the Indian Act is contrary to the ways of doing business in our
communities, and definitely does not reflect our customs.
However, embedded in the Indian Act are recognized rights that stem from the
treaties. Therefore, before the Indian Act is amended, we recommend that
adequate consultations be developed to engage First Nations people at the
community level, which would be in accordance with case law.
MKO does not support tinkering with or "piecemealing" the Indian Act with
regard to amendments. However, we will support a new legislation that will
recognize our self-government rights. We believe the Indian Act should be
repealed but not until both First Nations and Canada agree to a new order
This concludes my presentation. Thank you for listening.
The Chair: Thank you, Mr. Harper.
Did I hear you correctly? You do want legislation, is that correct? My
understanding was establishing another piece of legislation was not satisfactory
to many of our First Nations. I would like clarification on that.
My understanding is that there was something put before the Assembly of
Manitoba Chiefs, and the suggestion that legislation was to be established by
the department or by the government led to a rejection of this proposal.
Am I correct about that?
Mr. Harper: Yes, your honour.
The Chair: It is not your honour; it is just senator. You can call me
Gerry, if you like.
Mr. Harper: It is true we do not support any kind of legislation that
may affect our rights as First Nations. Preferably, as the treaties indicate, we
would like to have relations with the Government of Canada.
Also, we would like our inherent right to self-government to be recognized. I
believe the leadership would like to see self-government arrangements and
agreements, as opposed to creating new legislation, such as the First Nations
Governance Act, which was opposed by our leadership.
I would say you are correct: We prefer not to see legislation. However, my
presentation indicates an alternative: If the government pursues legislation or
legislation amendments, we have certain conditions to that process.
The Chair: I have another quick question, senators.
Please correct me if I am wrong; I am not trying to put words in your mouth,
but what I am hearing is that, if an amalgamation or a group, whether it be MKO
or whoever, decided they wanted to exercise their inherent or treaty rights to
govern themselves or establish their own elections procedures, they could apply
to go back to the custom code.
I think one of the concerns is that it would have to be funded by someone. Is
Mr. Harper: That is right. From our experience, we do have a process;
we have appeal committees, through a custom. However, what we are hearing is
that they are not adequately resourced. If you compared that with the Canada
Elections Act election system, you have all the resource people and resourcing
of that process.
Senator Peterson: Thank you for your presentation. I thought I heard
you say that you wanted the Government of Canada to negotiate self-government
with First Nations people, is that right?
Mr. Harper: That is right.
Senator Peterson: Do you really want that? Is that not Indian and
Northern Affairs Canada getting involved again and directing the show? I thought
you did not want this top-down discussion.
It would take forever to do this nationally, with all the different groups.
However, if one group was prepared to operate on a pilot project where they
would take all of these issues — terms of office, contested elections, recall,
process of voting, who gets to vote — and did that over a one-year period, and
consulted within their group to try to get a sense of it and come up with some
kind of a template, would that not be a start that could maybe move this process
a little more quickly?
Mr. Harper: The issue of self-government is a process which is
supported by our leadership. You have examples right across Canada where they
have negotiated their own self-government agreements in which they have
processes in how they select their leadership.
In terms of a pilot project, MKO would support whoever is to be part of that
pilot project. However, if it is within MKO territory, then there would be
consultation with our leadership to ensure that they would agree with the pilot
project. I do not know if I answered your question.
Senator Peterson: You did. I am just trying to move the process. It
must start somewhere, and we were focusing on Indian Act elections. I think
self-governments and inherent rights will all flow once we get started.
I sensed the bottom-uppers are saying they would like to do something, but
nobody knows where to start. If you support that idea, that may be one way to
get the process going.
Mr. Harper: Yes. There is a belief by our leadership that they should
assert their self-determination and sovereignty, to just go ahead and make those
processes such as setting up their own selection criteria and processes. There
is that group that says let us assert our sovereign powers or our inherent
Then there are those leaders who say let us establish a relationship with
Canada through self-government arrangements in which we will take control of our
own processes and establish our own laws. Then there is the current system with
the Indian Act which is, to me, an interim measure if you are going to amend the
Indian Act to establish a selection of leadership process.
Senator Lang: Since I am new to the committee and have not spent any
time in Northern Manitoba, you say you represent 30 First Nations in that area.
What size are these communities? Are we talking 1,000, 2,000 or 3,000 people per
community? What are we looking at here?
Mr. Harper: It varies from community to community. Where I come from,
Garden Hill First Nations, we have approximately 4,000 registered Indians that
live either off- or on-reserve. The population is approximately 4,000.
Within that area, we have four communities that used to belong to one band.
We have St. Theresa Point, Wasagamack First Nations and Red Sucker Lake; a
combination from that region is about 10,000 people. We have Norway House First
Nations, who have a big population of over 4,000 people in that community. We
have another First Nation — Nisichawayasihk Cree Nation, which is Nelson House
First Nation; it has about the same population as Norway House. The same with
Cross Lake First Nation, they have a big population. It is the same with the
Nisichawayasihk Cree Nation. We are talking thousands of First Nations people
belonging to these communities.
Senator Lang: Going further now, you talked about custom code
elections. I believe you said 65 per cent of your membership were custom code
elections, is that correct?
Mr. Harper: That is right.
Senator Lang: How many of those custom code elections are longer than
Mr. Harper: Most of them are more than two-year terms. There are a few
custom bands that still remain at three years. The majority of them have three
to four years. Norway House Cree Nation has a four-year term.
Senator Lang: Has that been for a long period of time? Have they been
doing this for 50 years or 20 years?
Mr. Harper: It is more like 20 years.
Senator Lang: In your area, you have some communities that have
two-year terms under the Indian Act, and in Norway House you have four-year
terms. As an observation, is it more politically stable? Are there more economic
and social opportunities in Norway House, where there is a four-year political
term of life for a council, versus in another community in close proximity that
goes under the two-year cycle under the Indian Act?
Mr. Harper: I would say the First Nations that have more than two
years are more successful with regard to social programming and economic
development. Norway House is an example in which they have all the amenities of
a small town. They have a shop where they can fix cars, for example; they have a
laundromat and a mini-mall.
They have four-year terms. The leadership can actually fulfil their mandates
and plans, as opposed to two years in which you get elected, you organize your
council within eight months, you start implementing and then you are faced with
I feel that our governments, Indian Act governments, are set to fail with
regard to that. If you look around, the city of Winnipeg, for example, has a
four-year term for the mayor. Governments have more than two-year terms, as
well, and they are very successful.
Senator Lang: If I am a member of one of the communities that has a
custom code election, can I go on the website and get the rules that are in
place for the purposes of an election? Is that available to me as a member?
Mr. Harper: More progressive First Nations would have accessibility to
the rules. That goes to my presentation that First Nations require funding so
they can have such documents available at their fingertips. Unfortunately, that
is not the case in all the communities in Northern Manitoba. How they access the
rules is through dissemination by hand, distributing the actual rules prior to
Senator, you make a good point. That is something that should be in place and
why I said the custom elections should be adequately resourced.
Senator Lang: That brings me to my next question. To ensure that an
election is fair and all the rules are followed in these cases where elections
are called, is there an election officer who is in charge to ensure that all the
rules of private ballot and all that are adhered to?
Mr. Harper: Most First Nations under custom do have electoral
officers. Under the Indian Act, we have electoral officers as well. Training
these electoral officers is something that needs to be built upon. I feel there
has to be more training for these individuals and, in turn, providing that
information to the community. The answer to your question is yes, there are
electoral officers in place.
Senator Lang: Under the Indian Act, if there was a recommendation to
extend the period of office for chiefs and band councillors from two years to
four years and that was the only recommendation made in this interim period, in
order that we can get a longer period of time for the purposes of the political
stability in these communities, would you be opposed to that — if it was seen to
be done for a period of time and that would be the only amendment that would be
Mr. Harper: Personally, I would support that recommendation. However,
I would not support any other amendments to the Indian Act if it affects the
residual governance rights that we have or some of our treaty rights that are
embedded in the Indian Act.
Senator Carstairs: Mr. Harper is from the Garden Hill community, in
which we know there have been already some people who have been infected with
H1N1, along with St. Theresa Point. I know this is not relevant to this
governance, but since he is here I would like an update, if he can give it to
me. The last I heard, 27 people had been evacuated. Do you have any greater
numbers than that, Mr. Harper?
Mr. Harper: I can only report what I know. I can say that I have
talked to the leadership in the area. In particular, I have talked to Chief
McDougall, who is from St. Theresa Point, and to my own chief, David Harper,
from Garden Hill. In Garden Hill, there is one case of a baby having tested
positive for H1N1.
With regard to St. Theresa, I have been concentrating on the two individuals
who are critically ill in the hospital. It is those individuals I ask about when
I phone Chief McDougall.
I know there are symptoms. I am not sure how many confirmed cases there are
within the Island Lake area, but I do know there are two other cases further
north from our communities. In South Indian Lake they have one case.
The concern the chiefs have expressed is that they question why there is a
high incidence of this flu within First Nations. The responses have been in
relation to overcrowding in the houses. We have family members, up to 10 people,
living in a two-bedroom house. If one member gets infected, there is a high
chance of others being infected as well.
Senator Carstairs: Thank you, Mr. Harper. I would like to go back to
the actual purpose of your being here.
In terms of the whole issue of consultation, it seems to me we go around in
circles. The government will tell us — and it does not matter what political
stripe they are — that they are in fact engaged in consultations. I then speak
to the Aboriginal First Nations and they tell me that, no, they are not engaged
in consultation, that any consultation is kind of a directive from on high; it
is not a consultation process.
Could you describe for us what you would consider to be a genuine
Mr. Harper: Well, I am probably guided by case law in how I will
respond. Basically, the severity of the impact on our rights guides how you
would develop the consultation process. In case law, they say a simple letter,
in some instances, would suffice if First Nation rights are not impacted that
much. Then there are other cases where you need the actual process in which you
establish a process and ensure that there is consultation with the community and
Our position has always been that even policy development requires
consultation because it potentially can affect our treaty rights or inherent
rights. Developing any regulation will impact on our rights, and especially
amendments to the Indian Act or new legislation. If the regulation impacts on
our treaty rights or even Aboriginal rights, we would be demanding consultation.
In those cases, we would say we should actually have a dialogue between
government and the First Nations, not just information sessions but to be part
of the process of recommending how to change legislation, for example.
Senator Carstairs: As I understood your presentation, I think I heard
you say — and please correct me if I am wrong — that if the government, through
the Indian Act, administers an election process, then of course they pay for the
training and for the election itself, but if it is a custom code election, there
is no compensatory funding. Is that correct?
Mr. Harper: No, I did not say that. There is funding available. The
issue that I am raising is the amount of funding, that there should be adequate
funding — for example, in establishing an appeal committee to ensure that
committee is well resourced.
Senator Carstairs: Thank you for that clarification.
In terms of custom code elections, I am aware of many of the communities and
I have been in many of the communities in the MKO area. The larger communities,
like Opaskwayak, Norway House and Cross Lake, are they all custom code
Mr. Harper: Norway House is definitely community custom election.
Nelson House is definitely custom election. Opaskwayak Cree Nation is not. They
are still under the Indian Act election system. Cross Lake is custom election.
The bigger communities, a majority of them are custom election.
Senator Brazeau: Thank you for being with us tonight, Mr. Harper.
While we are talking about governance, if you look at the big picture, we have
the Assembly of First Nations, AFN, at the national level, and as it applies to
Manitoba, you have also a representative from Manitoba, a regional chief of the
AFN for the Manitoba region. You also have the Assembly of Manitoba Chiefs. You
also have MKO and SCO, the Southern Chiefs' Organization.
Could you please explain MKO's role vis-à-vis all these other regional
organizations? Does MKO provide any services to the citizens living in the First
Nations communities that you represent?
Mr. Harper: The mandate of our organization is to advocate on behalf
of our First Nation governments and also on behalf of individual First Nations.
As an entity, we are incorporated. To benefit the government, we agree to
administer and to flow monies to our First Nations. Training is one example
where we have an agreement with the government. If we did not have our
organization, there would be individual agreements with the First Nations. From
what we have experienced with the federal government, they have always liked
this idea of having a one-window approach through which they would flow monies
We are not a service organization; we are a political organization. We do
administer certain programs; however, that is mandated by our constituents, the
Senator Brazeau: You talked about consultation, and that is always a
big-ticket item when we are talking about Aboriginal affairs. If the government
were to properly consult with stakeholders, who would the government go to? The
bodies I mentioned earlier are all political representative bodies of First
Nations communities in Manitoba, so who would the government go to, to try to
consult on any amendments, and in this particular case, amendments to the Indian
Mr. Harper: My opinion is that, because we advocate on behalf of First
Nations, we would work jointly with the governments to ensure there is adequate
consultation at the community level. To answer your question, it is not enough
to consult with the organizations. What is adequate is for these organizations,
such as MKO, to work and assist in proper consultations at the community level.
Senator Brazeau: If the government were to properly want to consult
with First Nations people in Manitoba on amendments to the Indian Act, would the
organizations be opposed if, hypothetically, the government decided to host the
consultation sessions directly with the First Nation citizens living in those
communities? Would the organizations oppose it if the federal government were to
go into those communities and have a town hall session where individuals could
provide feedback with respect to the specific amendments in this case?
Mr. Harper: Definitely they would be opposed to that. Of course, the
chiefs are the board members of our organizations and it is the chiefs who will
say, "MKO, you have a role to play. You are mandated to safeguard treaty
rights, to safeguard inherent rights," so they will tell us to advocate on
their behalf, set up a process and conduct these consultations. Yes, they would
be opposed to circumventing leadership of organizations who have the mandate to
Senator Brazeau: I have a problem with that as a First Nation citizen
myself because, if I understand you correctly, that means if First Nation
citizens would want information and to be consulted, and if a government would
spearhead that process of consultation, thereby giving First Nation citizens and
individuals the opportunity to have their voices heard, you are saying that the
Manitoba chiefs would oppose such a process in which individuals could have
their voices heard?
Mr. Harper: No, that is not what I am saying. Definitely, their voices
should be heard. It is developing a process. That is what I am talking about. We
need to assist First Nations in developing those consultation processes to
ensure everyone is heard through that process.
With the defunct First Nations Governance Act, that was the constant
complaint to our organizations: Where are you? The government is circumventing
our organizations and saying communities first, and the communities are asking,
where are you? That is why I say we would be opposed because we have experienced
that process before in which our First Nations have always said, "Help us," so
we need to be involved. That is all I am saying. I am not saying we do not want
to hear from the people. By all means, we want to hear from the people.
Senator Brazeau: You mentioned earlier that amending the Indian Act on
a piecemeal basis is not going to work. As a matter of fact, MKO opposes that.
Correct me if I am wrong in any of my statements. Having said that, I have
always been of the opinion that any improvements to a piece of legislation are
better than the status quo. Several attempts in the past that were tried were to
improve upon the governance systems and the accountability of what is currently
in the Indian Act or what is lacking because of the Indian Act. Having made
those bold statements earlier with respect to and even including recommendations
of what the federal government should be doing, such as entering into
self-government negotiations that you mentioned, what type of consultations have
you had with the First Nations in the 30 communities you represent that has led
you to the positions MKO has with respect to these potential amendments to the
Mr. Harper: I have worked with native organizations for approximately
15 years. Through those 15 years, I have listened to the leadership and talked
to the First Nations and their position is: Assert your sovereignty. Do the
things that you want to do. You do not have to listen to anyone. That is the
position of many leaders. They talk about treaties, the treaty relationship
between the Europeans and the First Nations, that they still retain
self-government powers, that they never negotiated or relinquished any of those
powers with First Nations. I have talked to the leadership and I continue to
talk and I will continue to talk tomorrow. That is why I am stating that they
prefer not to tinker with the Indian Act and not to piecemeal these amendments
to the Indian Act.
Earlier I said personally I would support a clear and concise amendment to
extend from two years to four years, but when you start tinkering with other
provisions of the Indian Act then I would be very cautious and I would say to
consult with the First Nations.
Senator Sibbeston: Thank you, Mr. Harper, for being here and answering
questions. I do not know you and I have been wondering how I should broach the
subject. Many of us on the Senate Aboriginal peoples committee are Aboriginal
and those who are not are here in support of Aboriginal people. We come
sincerely with a view to helping the situation. We are focusing in this case on
the election period, believing that it is a problem out there in terms of our
own experience and contact, and believing that if we could just deal with that
question of election terms, increasing it, we will be doing First Nations people
in our country a whole lot of good. That is the spirit with which we approach
I see you and your organization as being very guarded and cautious. You do
not want to see piecemeal amendments; you want wholesale changes and, as you
say, a new order. In answer to some of the questions, you recognize the benefit
of having more than two years. If it is possible, could you give us that
credence or that credit that we are here to try to do good with the work that we
do? We have been to Manitoba. We have been to Winnipeg and Dauphin and we will
be going to other areas of the country. I think we are doing the right thing. We
have spoken to AFN and to other organizations just so that they are not
surprised or unaware of what we are doing.
Recognizing that, could you give us the benefit of telling us whether we
should continue doing our work, whether in the end if we do find a lot of people
recommending to us that we ought to increase the term to more than two years and
it is a good thing, whether we should do that?
Mr. Harper: Thank you, senator. I have presented once before to Senate
hearings when I was employed with the Assembly of Manitoba Chiefs. I can say
that the Senate has been very helpful, not only assisting First Nations' issues
but raising and clarifying what problems exist out there. There have been many
benefits as a result of the processes that you undergo.
With regard to amendments to the Indian Act, I do raise the issue that First
Nations will not be readily supportive of amendments to the Indian Act. However,
if it was concise and clear and did not impact on their rights, I am sure they
would not oppose it.
The Chair: We have about seven minutes left, so I would ask you to be
Senator Dyck: Thank you, Mr. Harper. You have made your position clear
— namely, that treaties are made between sovereign nations. I think you said
that you viewed this study as somewhat limiting the right of First Nations to
their own abilities to govern themselves. Though that may be the ideal goal, in
the meantime, we have the situation we have today.
Would you agree to the idea of removing from the Indian Act the sections that
deal with elections, or do you prefer to keep those sections there?
Mr. Harper: The Indian Act, section 74(1) and so on, and the
regulation pertaining to Indian Act elections, have served its purpose as well.
It is matter of choice by individual First Nations as to which process or regime
they want to use. I do not think it is within my position to state what
preferences First Nations would like to go through when they have their
Not long ago there was a suggestion — and I believe the First Nations
introduced this option — of a recognitions act in which First Nation inherent
rights and Aboriginal and treaty rights are recognized. You would have a broad
piece of legislation that would enable First Nations to develop their own
arrangements with the Government of Canada and recognize their customary laws.
That would be the ideal thing that they would support.
I also mentioned this notion of asserting sovereignty, in which you do not go
to Canada and say, "Recognize us;" you just assert your sovereignty. To
establish that harmony and relationship could be one possible option that First
Nations can either implement or look at.
Regarding your question about taking all the procedures, the legislation,
from the Indian Act, I think that the recognition act would do that if that was
the case. Inevitably, that would be the case, if you were to implement that
Senator Brown: Mr. Harper, I believe you mentioned that you have
people who live on-reserve and people who live off-reserve. Is that correct?
Mr. Harper: Yes; that is true.
Senator Brown: Do the people who live off-reserve have access to their
own homes or apartments or whatever?
Mr. Harper: Persons who live off-reserve do have access to that.
Senator Brown: Can they own their own home or apartment or whatever it
is they live in if they are off-reserve?
Mr. Harper: I live off-reserve and I am an off-reserve First Nation
who believes in our leadership. I have my own home, if that is what you are
asking. I have been on the housing list for a home on the reserve for the past
25 years. I would prefer to live and work on my reserve, but I cannot because of
the housing shortage.
Senator Brown: Is it correct that none of the people who live on
reserves have their own homes?
Mr. Harper: Some First Nations have their own, private homes, but the
majority of them are band-owned homes. On the reserve, yes, they are called
CMHC, Canada Mortgage and Housing Corporation, housing in which they pay towards
owning the home.
Senator Brown: In other words, they are renting the home to own it, is
that what you are saying?
Mr. Harper: I believe they pay the First Nations and when they do
finish paying for the house, it would be their own house. I do not know if that
is mortgage payments or rent payments. I tend to think that it is mortgage
Senator Brown: How long would that process take?
Mr. Harper: I am not an expert in housing on-reserve, but the
amortization period would be the same as you would find in off-reserve housing.
Senator Brown: Do the people who live on reserves and rent these homes
own their own furniture or appliances or any of that?
Mr. Harper: Let me be clear: First Nations do not rent their homes.
They do not pay rent. They live in the housing that is provided for them through
the band. It is band housing.
If it is CMHC housing, that is a different story. In that case, they have to
pay mortgage payments like everyone else. With the furniture, they do buy their
own furniture. I have not heard of any resident on the reserve who says "I want
furniture," being given furniture.
Senator Brown: They buy their own furniture. Do they buy their own
appliances as well — that is, washers, dryers, stoves and refrigerators?
Mr. Harper: That is true.
The Chair: I am not trying to direct the line of questioning, but I
remind senators that we are having this inquiry on the elections codes and
custom codes, and so on.
Senator Raine: First, Mr. Harper, I am sorry that I was late. Sorry to
have missed your presentation, but I have very much enjoyed your answers to the
questions from my colleagues.
I have been told by friends that, in some ways, reserves are like a prison;
in other ways, they are like a fortress. There are aspects of not being able to
do what you would like to do, but there is another aspect where you have
We have heard on the committee that, while there is a recognition that a
four-year term is good for economic development, continuity of social programs
and being able to set goals and achieve them, there is also difficulty sometimes
and people are afraid of going to a four-year term because they might have a
leader they do not like or someone who will, somehow, go off the tracks.
If we are going to look at changing terms, should we also look at the ability
to have a recall mechanism in the elections if something is not right? What are
your thoughts on that?
Mr. Harper: The recall mechanisms are removal of leadership.
Let me start by answering your question this way: If, for example, there were
amendments to the Indian Act with regard to extending the four-year terms, I am
not sure if there is a process in which we can allow First Nations to opt in to
four-year terms or to leave it as two years. They will decide. That is my
response to that issue.
Through custom elections, they do have recall mechanisms, such as petitions,
which are recognized. I happen to have written one custom election in which I
was instructed to ensure that a provision was in the custom election code for
the recall mechanism of a petition. In that process, yes, they do indicate that
they support that mechanism, and I believe they should.
I wanted to also make the point that, in drafting a custom election code, I
find their criteria as to who should run and when they should be removed are
more stringent than the Indian Act. Under the Indian Act, if someone gets
charged, and I am a lawyer and know that, you can be removed from office, but
the fact is if you get charged, it might take four years to get a conviction, so
you still serve your term plus another two years. The process is quite slow.
To answer your question, yes, there is support out there for recall
The Chair: Senators, our next witnesses were scheduled for 7:30 p.m. I
am at the behest of the committee. I do have a couple of names on a second
round, but I would like to go to the next witnesses, if that is agreeable.
One question came up considerably, which was voting by mail. I may talk to
you about that later, Mr. Harper. In some areas, it was really an issue and
uncontrollable. Senators, I spent some time with Mr. Harper today prior to the
meeting, trying to deal with other economic development concerns. Mr. Harper,
thank you for coming tonight and being candid and straightforward, and for a
good presentation as well.
Senators, we now have before us the chairman of the Dakota Ojibway Tribal
Council, DOTC, Chief Ken Chalmers from Birdtail Sioux First Nation, and I
believe he is also chief of Birdtail Sioux. He is accompanied by Robert Daniels,
chief executive officer of DOTC and by Chief David Meeches of Long Plain, just
outside of Portage La Prairie. Birdtail Sioux is on the Saskatchewan-Manitoba
border. Chief Robert Daniels is from the Swan Lake First Nation, which is
halfway between Winnipeg and Brandon.
As you know, we are researching the question of elections under 74(1) of the
Indian Act, terms of office, set election dates and possibly the recall
situation. Chief Chalmers, if you are ready to go, the floor is yours.
Ken Chalmers, Chief, Birdtail Sioux First Nation, and Chair, Dakota
Ojibway Tribal Council: Thank you, senator. Honourable senators, thank you
for inviting me to Ottawa and to this committee meeting. I missed a meeting in
Winnipeg recently. I just became chairman of the DOTC and the secretary gave me
four days to represent eight communities from the DOTC. I am also the chief of
Birdtail Sioux First Nation and I have been involved there politically for 12
In regard to elections, I want to give a brief history of the Dakota Ojibway
Tribal Council. It is the first tribal council in Canada and is 35 years old
this year. They do all our elections. I am chairman of five bands that are in
section 74, three in custom and one hereditary chief.
The DOTC does our elections; they function with our governance and we are
viewed as the grassroots people. Also, the Dakota Ojibway Tribal Council is the
largest landlord in Manitoba. We own over 700 subsidized homes, which we rent to
our students and to lower-income people working in the cities — in Winnipeg,
Virden and Brandon. They are soon maturing and so we use those as equity for
The Dakota Ojibway Tribal Council is unique, being the first one, a strong
organization and connected to the grassroots of our people. For instance, I am
from Birdtail Sioux. The DOTC came in and helped with policies and elections,
and also helped us with our connections with government, corporations and Indian
I would like to give a brief history of my reserve. I did not have a chance
to represent Birdtail Sioux First Nation at this committee as chief. We are
considered refugees in Canada. We have really no home and Canada's position is
that we are refugees. That position here is so we have no treaty. We are
non-treaty Birdtail Sioux. We recently engaged with the Government of Canada in
the last couple of years through Bill McKnight. Former Indian and Northern
Affairs Minister Prentice referred him to us in order to look at our grievances.
We will get back to that later.
Concerning the elections for Birdtail Sioux, section 74 is the only thing we
have. I have no problem personally with it because it is the only mechanism we
know. We do have recall in our community and we use section 74 for that, too. As
for the other bands, as I said, three are custom so they run their own
The Dakota Ojibway Tribal Council is really connected to the grassroots of
our eight nations. If anyone is going to conduct elections, we get the tribal
council to come in and run them for us. They are through our advisory dollars
that come to the tribal council. I will get to the point here: They are allowed
to do our elections, mail-outs and everything else, which is done properly.
However, when it comes to referendums, I have a problem with that because
currently I am in the ATR process, federal additions to reserves/new reserves,
and I finished that. I am now going into an agreement in principle with the
region and the Department of Indian and Northern Affairs says it takes a year to
two years to do this referendum process. They refuse to let the Dakota Ojibway
Tribal Council do the referendum, yet it says in our agreements that they do
elections and referendums.
This process is really affecting me because my additions to reserves are one
of the first in Canada that is on a highway. We purchased 10 acres of land and
it has taken four years to get a municipal service agreement. It has taken hard
work to get investors to believe in our First Nation as an economic partner with
the local towns and communities around us, to believe that we want to be part of
the economy in our region, which is in the area of Russell, Manitoba, with ski
resorts, Lake of the Prairies and new potash mines being developed. Birdtail
Sioux has memorandums of understanding with TransCanada Pipelines. We have a
memorandum of understanding with the Enbridge company. With the potash people we
have jobs in training. In fact, I have 20 guys going out tomorrow. These things
are affected by elections.
We have investors. My ATR is a business and economic ATR, as they call it. I
bought a school that was shut down in 1994. We are not allowed to spend band
money on economic development. I work to get investors to believe in our
projects and to start to trust us, but when we run into elections they are
scared that I will not get back in and the next guy, who they do not know, will
wreck the whole thing. We have agreements with investors so we have $5 million
put away for this project, which includes a 300-seat bingo hall, which I
negotiated for with the Province of Manitoba. I have 120 machines. We are
setting up a gas bar and restaurant here.
It has taken me four years to get a municipal service agreement. It is an
urban reserve on Highway 16, right beside the ski resorts, and the potash mines
are coming in. There is a great tourist industry there. We have bass fishing in
Lake of the Prairies. Every time there is an election, I have to assure these
investors, even if I do not get re-elected, whether we are going to stay with
the First Nation. I developed this trust with the outside businessmen, chambers
of commerce, mayors, municipalities and holding on to these guys is a real
As you all probably know, when you are trying to get people to invest in your
people and community, and become part of the economic strategy for the region,
then along come elections and you have the guy who is running against you
phoning your investors saying that, when Chief Chalmers is out, I am going to
shut you down. It creates turmoil in whatever we do business-wise. I think every
chief has said that. You work so hard and then the Department of Indian and
Northern Affairs gives you the four- or five-year process — the studies the
department is supposed to pay for, such as the environmental studies, phase one
and two, to make sure the land is free and clear before they hand it over.
Manitoba hands to Canada and then Canada hands it back to Birdtail Sioux. They
tell the chief that two years from now we will give you $10,000 for that study
but you have to wait two years. I convinced our investors that we can do it
ourselves and our investors would pay for that study and another one, and
basically the investors own the land.
Now I have this referendum coming up, which is called the designation
process, in which you have to involve your community. This ATR is a new one for
Canada and the Department of Indian and Northern Affairs because it is economic.
I have to present my investors to the community and they have to come to three
meetings. We have to show them how the corporation is set up, how the chief is
put in trust, how it is 100-per-cent owned by the Birdtail Sioux First Nation,
and how we buy the investors out over a period of time so we own it all and get
all the revenue.
Indian and Northern Affairs Canada must be there at the table every time we
do it. I am losing money now. We can kick this thing right off and move ahead. I
have to do 12 months for this referendum for designation, and I have the tribal
council here as the CEO, and the chiefs who could do the referendum and
designation, and do it properly.
You inform your people how it breaks out, how it is set up for the future of
your children, and how it is set up for economic development. It will help our
housing and pay for renovations — $29,000 a house is not sufficient. It is an
economic engine I need and our people need and our children need so I can feed
them at school. It is a nice business proposition.
I just came through an election. My stance has cost me a lot of votes. My
stance is cooperation with the big corporations. I am listening to the grand
chief of Canada who says to work with the corporations; do not take them to
court; you do not want to know their answer. I am non-treaty. I am working with
Canada. We have a rail line going through our reserve, and I made a promise to
former Minister Jim Prentice on July 4, 2006 and have kept it to this day; we
will never let anyone use that rail through my reserve unless we keep talking.
So far we are talking.
It cost me because a lot of my people want to engage in militant acts on
those rail yards. I have guys against me who say let us go and blockade CN Rail
and the pipelines through our territory. I say, no; we work. I find it very
beneficial working with corporate Canada here.
For example, Enbridge is doing our daycare centre, community investments and
a new store. Our people had to travel 50 miles to buy food. It cost them $50 to
go buy $20 worth of bread. We have this huge new store where people can shop and
the money stays at the community level.
I have a tribal council here that can do everything. We are 35 years old; we
are before AMC, SCO and MKIO, Manitoba Keewatinook Ininew Okimowin.
Enbridge is sponsoring our language conference. They are sponsoring my pilot
project for saving our language in schools.
Getting back to what we are doing here, the Dakota Ojibway Tribal Council is
perfectly capable. This 35-year-old organization has always been grassroots,
always came to my reserve when I needed help. I was not born on the reserve and
did not live on the reserve. I am an army brat; I was born in Germany. I am the
first landed-immigrant chief in Canada. I came home after university to see my
mom. She was the first nurse in Canada. I have a sister, Angela Chalmers, who
ran for Canada in the Olympic Games and won a bronze medal from Birdtail Sioux.
We have a very outward-looking view. We had the highest suicide rate. We beat
the national average when I first came home. We have changed all that. We have
I spent six years getting us out of debt from the previous chiefs, and
brought in transparency and accountability, to everybody's chagrin. Some people
on my reserve do not like that, believe it or not. A chief being paid $120,000 a
year, we are not worth that. We brought our wages down to $30,000.
We did a lot of work here. We get a lot of flak from our people because of my
stance. It is hard to win an election when you have one every two years. You
just get started in your economic development.
I have been through three terms with this project on the move, and I like the
four-year terms. I believe you must set some sort of recall mechanism. There are
guys out there who do not care about their people. Recall mechanisms need to be
With respect to section 74, I am glad we are not under custom because they
are confusing. They can be used by the opposition and by the chief to their
advantage, if it is not set by Parliament with some recommendation on how to do
It is hard for us, for me as a chief, to go through this so often. You go in
a year, and you have a building plan for a year. We are building 15, 20 houses a
year now. We are economically viable now. We pay rent; we have a rent regime and
We have the first level 2 water plant, one of the top-level water plants in
the country is on our reserve and a brand new school. I had four graduates in 40
years. Now we are doing that every year. I am from a small community; I only
have 400 on reserve and 300 off reserve. The Dakota Ojibway Tribal Council
handles all my post-secondary members. It is very strict; if you fail at school
you cannot go back for a while. They are very strict in that area. You have band
members who say the chief refuses to let them go to school. We have people in
the tribal council to handle all of that so the chief does not take it.
Here is a good example of a situation that can affect your election:
Yesterday, to keep our children safe, we shot 21 dogs because they were bringing
down our calves. We do this every year. You shoot the wrong dog on a reserve and
you can lose the bloody election. I am not joking. We just did it. We culled our
dogs because I do not want children hurt. If I did that before an election, you
could lose. It is a weird situation.
It is weird to me because I did not grow up there, and all my family is out
there — just me and my mum, actually. One year you are elected and you could go
and go. The year before the election you are starting to get slammed for your
positions in your community on accountability and transparency, you are saying
"no" a lot, and saying this does not go on anymore, our children are more
This old system of top families on reserves getting more than anybody else,
and the workers in our community getting high wages has all ended. That costs
you. That cost me, and it is one of the hardest things I have ever done. Somehow
I keep getting re-elected. The last one was the closest because of my stance
with the corporations and with Canada. Keeping my promise to a minister set me
apart from a lot of chiefs.
I was the only chief sitting in the AMC, Assembly of Manitoba Chiefs, sitting
there cooperating with the big corporations and feeling ostracized for
cooperating because I should be standing in blockades or threatening lawsuits
and not following the norm of what we do.
We stuck to our guns, and I see the benefit for our people. After the court
rulings in Manitoba, everybody sees that it is best to cooperate. I am following
what Minister Prentice told me. He said work with us; economic development is
the answer. As I said, four-year terms would be good, but there must be recall;
I believe in that. I do not know what to say to you on the recall mechanisms.
I believe that the Dakota Ojibway Tribal Council — this organization has been
around 35 years — is closer to the grassroots than AMC, SCO or anybody else in
Manitoba. I heard some questions about these organizations. I sit on the boards
of these things and I find it confusing. There are so many resolutions, and it
is very confusing.
I feel sometimes they do not have my community's interests, but they have
some good things.
I can leave it at that. I am frustrated with our election system. I was just
elected, and in six or seven months I will have a referendum and will have to
wait for Indian and Northern Affairs Canada. People will say, "Chief, you are
lying to us; you promised us a gaming centre and a hotel." It was the hardest
10 acres I ever bought. We go into elections and they think I have not been
doing anything for the last three years. Getting municipal service agreements
alone take about three years. I thought I could do it all in one year; I was
naive. It has been five years now. I believe in our Dakota Ojibway Tribal
Council. We are economically established in Manitoba having some 700 or so homes
for people who live off-reserve. Our post-secondary graduation rate is the
highest in Manitoba. My reserve is small. I have 25 graduating students all over
Canada. I have head nurses and surgical nurses in Vancouver; and I have police
officers and detective sergeants in Winnipeg. With the elections, I will get
back to them. I am forced to do it and it is a big campaign. I know you were all
elected at one time somewhere, although not here. I am talking about elected
positions and not appointed positions. For example, I followed the career of
Senator Carstairs when I was a younger man. I am not insulting you but I am 50
years old now.
The Chair: That is a lot of information.
Mr. Chalmers: I cannot tell you how the recall mechanism works, to be
honest. The Dakota Ojibway Tribal Council is working at the grassroots level. I
bring guys in on all policy and everything we do. They are well respected in my
community. Sometimes I have a grand chief come in. Robert will come in and bring
his staff and teach policy and administration. That is the way it has been and
it is really good. Why can the Dakota Ojibway Tribal Council not run
referendums? They run elections. They mail out and do everything properly.
However, when I get to this referendum for my additions-to-reserve designation,
the Dakota Ojibway Tribal Council cannot run it; Indian and Northern Affairs
Canada has to run it, which will take another two years.
The Chair: Thank you, Mr. Chalmers. For the record, do you have eight
bands on the Dakota Ojibway Tribal Council?
Mr. Chalmers: We have nine bands. There were eight originally and we
let one more in, but they have no control. We let them in and provide service to
one of the First Nations. We advise them and give them a helping hand on
whatever they need.
The Chair: Are any of these bands in Treaty 1?
Mr. Chalmers: Yes, the four Long Plain bands. There are four Dakota
bands that have no treaty.
The Chair: You said "machines;" is that video machines?
Mr. Chalmers: Yes, I negotiated with the justice minister for 120
Senator Lang: I appreciate your candour. It must be tough being the
dog catcher. You made a comment in your opening address that custom codes can be
confusing and often to the chief's advantage. Could you clarify that?
Mr. Chalmers: The power in communities is based on families. Usually
the power bases have been there for 30 to 40 years. I say it can be used by the
chief and by the opposition. There are a few examples. I know one First Nation
that is always in court. There is always someone challenging the custom election
code. You might be elected but then have to face a court case against you. For
18 to 19 months, the poor chief is sitting there wondering what the custom
election code was meant to be? They have people in your community, which they
should have, to make that chief responsible and the council responsible. Yes,
there should be an opposition but when that opposition goes to the custom
election code and bends it in their favour, the elected chief ends up in court.
A judge has to figure it out for you. The chief might say he did everything
right but the opposition thinks otherwise. The interpretation of the custom
election code can vary. It is very confusing and drags the community down.
Senator Lang: What is the difference between a custom code that has
recall versus election under the Indian Act that has recall?
Mr. Chalmers: It is straightforward with section 74 and such things as
the chief missing meetings or not showing up around the community. It is pure
and simple: You are out. If you are charged with an offence, you are out. The
rules are straightforward. Custom election codes are more confusing.
David Meeches, Chief, Long Plain First Nations: With respect to the
earlier question relating to the custom code and the process, prior to the
amendment of the custom code or the adoption of the custom code, you have
parties. My First Nation is custom and we go to a vote in terms of the changes
we make. Generally, those that provide the louder voice will have their
amendment put into the code. Potentially, it is changed based on the interests
of that individual.
As I indicated, we went through that process in our community in Winnipeg.
Our code was changed six months prior to an election. We have three-year terms.
I was fortunate enough to be elected, but I cannot say that the provisions
changed within our code were in the best interests of our community because it
was a simple majority of a small number of people who approved it.
Senator Lang: I see real problems with the recall because, as a
mechanism for dissention within the group, it provides that political base to
continue to agitate as opposed to dealing with issues as they arise.
If we were to recommend that the Indian Act provision on elections be amended
to go from two years to four years, would you support it?
Mr. Chalmers: Clearly, yes, as long as it is black and white. Section
74 is black and white but many First Nations want sovereignty. We want
provisions like drug protection for candidates and certain criteria that you
throw in, such as education. It is up to that First Nation but I would support a
four-year term with a recall mechanism so that you do not face a disaster in two
years, which can happen.
Senator Brazeau: Thank you for being with us this evening. I will
share Senator Lang's view of appreciating your candour in your comments. I
certainly sympathize with good chiefs across the country, having had the
experience of heading an Aboriginal organization. In terms of governance, you
are dealt the cards you are dealt and you try to do the best you can.
I understand some of the opposition you may receive when you are trying to do
the right thing and things within your mandate and whatnot.
Just for clarification, you are here as the chair of the tribal council.
Therefore, do you speak on behalf of the nine communities that make up the
Mr. Chalmers: To answer your question, most of the chiefs have spoken
to this committee already. I know of one who has not, the hereditary chief. I am
pretty sure every chief from the DOTC has been up, like Chief Brown.
The Chair: Is that Sioux Valley?
Mr. Chalmers: Sioux Valley, Chief Elk. She is from Sioux Valley. Chief
Frank Brown is from Canupawakpa. He is in Winnipeg. I think most of them came.
Chief Murray Clearsky came from Waywayseecappo. Terry Nelson belongs to the
The Chair: Is it Rolling River?
Mr. Chalmers: No, that is another tribunal council.
The Chair: Thank you.
Mr. Chalmers: To answer the question of Senator Brazeau, I am speaking
on behalf of Birdtail Sioux and being chairman of the organization, I would not
talk on behalf of another chief. I think they had their words here already. The
Dakota Ojibway Tribal Council is closer to the grassroots than the AMC, the SCO
or even INAC or whoever runs the election. There are ones who are giving the
information for accountability.
That is the oldest tribal council in the country that is secure in its
grassroots. There are CEOs and they have professional staff. We have health
directors. Health directors have master's degrees. My health director at the
grassroots level comes in and helps them organize what we need to do. Our health
director is all over the latest epidemic. The AMC did not help us at all. The
DOTC knew that we should have got those funds instead of the AMC. They went
around workshopping everybody, but we needed wash stations at our schools. We
needed that stuff on the ground, right now, instead of the AMC.
I remember my health director coming back to me and the Dakota Ojibway Tribal
Council health director saying, "Workshop, workshop," but now this thing has
hit. Traditionally, for First Nations, every new epidemic that comes down the
line we get hit. I believe Dakota Ojibway Tribal Council as a grassroots
organization with the nine-member bands have handled our money very well. We
have a very good accountability to the First Nations. We do very well in that
I am stuck between a rock and a hard place with 20 different organizations
when I know this organization can do it for 15,000 people. In this tribal
council, we could have done it a hell of a lot better. I am not talking about
anybody in the other organizations, but I see something that works, and somehow
that money stops at the AMC, and they are not service providers. The Dakota
Ojibway Tribal Council is. We have health staff. I will leave it there.
Senator Brazeau: I appreciate the clarification. I will frame my
question to you as you being the chief of Birdtail. Birdtail is under section 74
as you mentioned, and our work as a committee is to look at means, ways and
options to improve on the section 74 prescriptive election regime under that
Given your earlier comments, I am assuming that you would not be, as chief of
Birdtail, opposed to any improvements to the governance in terms of rules of
elections under section 74. Would that be a fair assessment?
Mr. Chalmers: It would be fair to say that I believe in Elections
Canada. When they do a job, they do it right. We get questioned every day on how
we do it, and we need someone who has credibility. We need your help — this
committee's help — to show that we have credible elections, and that they are
Section 74 is all I have, and it is, like I say, black and white. This whole
system is not perfect. It is dependent on the mail-out ballots; I will go to
that. I am not too sure as chief if I should be contacting my students. Who is
the family and how do you campaign? So you sit there quietly and hope family
members phone them up and get them to send names in so the Dakota Ojibway Tribal
Council can send them the election ballots. I barely hang on.
However, section 74 is the only black and white thing I have. It is under the
Indian Act, which is archaic, but that section is all we have now, unless we go
to custom and that will take me years, or a long time, because it will be just a
sideshow in our community: "We want this; we want that." To implement all
these rules and then be challenged, we have to send it to Ottawa, Justice
Canada, and make sure Charter rights and all that are taken care of. It is
something I would love to engage in, but the capacity is hard to do. Tribal
council would love to help me do my custom election codes. There would be a
series of meetings. It would take at least five years to complete with our
To answer your question, the only thing I have is section 74.
Senator Brown: Mr. Chalmers, I admire what you have done with the
tribe that you are working with, especially a non-treaty, but your success shows
that the election process works. I would suggest that the more risk you take,
the more freedom you will have.
I had nine years' experience dealing with some reservations around a large
city in a planning commission. We could get anything for — I do not know what
you call them — ordinary people in three months. We could make decisions. If
there was a plan that came in from a reservation, it took a year just to get it
to Ottawa and back before we could start making a decision. A good part of your
problem is the slowness of the Canadian federal government, so that everybody
understands the government I am talking about. That is why it is a snail's pace
to get projects done that you want.
However, you have to do a lot of pushing on the federal government to make
that time frame shorter. It is worth the struggle because I know that one
particular reservation — I will not name names; people can find out easily where
I used to live and the names of them — decided to subdivide a bunch of land and
lease it to people who lived in the city, and the lease was only 10 years. They
have renewed it twice already that I know about. These people built some
expensive homes around a big golf course, and I do not think they understood
themselves, but it was nice to see the Aboriginal people get the upper hand,
I can think of another reservation on the south side of the city. They just
got $50 million for an intersection on their reservation — not a bypass, just
Therefore, the harder you push for democracy, I think the better off you will
be and the more freedom you will have. If you are held by regulations, you are
always stymied in what you are doing.
The one thing I agree with all my colleagues on is that you do not want a
recall mechanism. They can be a horror story, unlike any election you have ever
Senator Carstairs: This is the first time the issue of a referendum,
to my knowledge, has been raised vis-à-vis elections. If the DOTC is capable of
running elections — and they are — then why they cannot be designated as the
official group to run a designation process I do not know, but we will try and
In terms of recall, if you think it is a misery to have to run an election
every two years, can you imagine the misery that you will live in if six months
after you were elected, a group of residents decide they will begin a recall
petition against you, and you will be spending the next six months fighting a
recall? At least you had two years. I happen to believe the four years is
probably a reasonable amount, but I would ask you to rethink the concept of
recall. I think it could really put your feet in clay in terms of being able to
It seems to me that the best "recall" should be losing the support of your
council. Once you lose the support of the council, you will not be able to do
anything anyway as chief if the council is not functioning properly. I would
like your comments on that.
Mr. Chalmers: That is an interesting comment. I went through that
experience. If there are ideas the council do not like, I get out-quorumed. You
cannot do anything. With the economic development proposals we are doing, I have
full support. It is internal when you work with your council. Believe me, if
they do not believe in you or in a specific project, they will out-quorum you on
I try to get the point that recall is what really hurts everyone, but you
make me think again; I forget that council has that power. It does, and I have
felt it. It is democracy at its best at that level. They represent people on my
reserve who I have to respect, and I cannot out-quorum them. That is why we do
I have heard nightmare stories on recalls and custom elections, and I am not
prepared to go there. You are right; it is my council that controls me. There
are many elders who control the council. It evens itself out.
Four years would be good. It seems like some people think I just want to stay
in power, but that is not the point. You have a whole generation of children in
school currently; I will find out 10 years from now, when they are 16 and 17
years old, if I have failed. If I have failed these guys, I will have another 70
per cent of my population unemployable, which is at that point right now. My job
is to get this new generation all re-educated.
Robert Daniels, Chief Executive Officer, Dakota Ojibway Tribal Council:
Thank you. I wanted to clarify that I am not chief of Swan Lake anymore. I
might get in trouble with my chief if you keep referring to me as "chief."
The Chair: I said "former chief."
Mr. Daniels: That is for the record. Anyway, in terms of the question
raised by Senator Carstairs, the Assembly of Manitoba Chiefs' proposal is
contradictory in one sense in that, on one hand they want stability and to make
sure they can enter into long-term agreements and stable chiefs and councils
but, at the same time, they are looking for recall. We could have 64 chiefs in
recall and we could have chaos. I am not sure why they are promoting the recall
mechanism through the office of a First Nations chief electoral officer. Those
are some of the concerns we raised in terms of our briefing.
The paper we presented to you this evening we were not able to read; we do
not have the time, but there are points in there that we raised that were also
raised by the Department of Indian and Northern Affairs and the AMC that have
yet to be resolved. There are question marks around some of these issues.
For the record, we would like to enter this brief from the DOTC as part of
the record this evening. We were not able provide a version in French, but if we
could enter it in as part of the record, we would appreciate it.
The Chair: Is it agreed it should form part of the record?
Senator Carstairs: Absolutely.
The Chair: I have the copies here, but we have not circulated them
because they are only in one official language.
Senator Carstairs: Could we hear from Chief David Meeches on this
point as well?
Mr. Meeches: With respect to recall?
Senator Carstairs: Yes.
Mr. Meeches: What I can refer to and to do a comparison, the issue of
recall within our code can cause a lot of problems because recall is too easy
under our code. It just takes certain provisions to kick-start whether it is a
chief or a member of council to be recalled, or the whole council, for that
Again, we underwent a process in terms of approving a code where there was so
little participation by our membership on and off the community, that I raised
the point there should be a level of participation prior to adopting a change of
that nature, especially with respect to recall.
When you look at the issue of recall under section 74, I am aware of First
Nations that waited their whole term and beyond to be recalled under the appeal
mechanisms provided within the Indian Band Election Regulations. There were
whole new chiefs and councils in place where they were removed as a result of
the non-recognition of the former council. Recall under section 74 today is no
good unless it is clear-cut in terms of the reasons for recall under the current
Once recall does occur, in terms of an appeal, everything is in the air and
you cannot make a decision. It is basically that way throughout your whole term.
Under section 74, the recall mechanisms are irrelevant.
Senator Carstairs: Thank you.
The Chair: Is that because you end up in third-party management when
the process is happening?
Mr. Meeches: In the cases that I am aware of, they were not in third
party because they were under investigation. When a recall does occur generally,
a whole new election is directed. That is when they go into third party under
the accelerated process, for 35 days, I believe.
Mr. Chalmers: Indian Affairs or INAC would call it political
instability. That is when they put you in third party and sort it out years
Senator Dyck: Thank you for your frank presentations. You talked a bit
about the mail-in ballots, and it sounded as though you had some difficulties
with them but it was not to the extent that you felt it was a problem. Other
witnesses have told us about a lack of secrecy of the mail-in ballot or
procedural difficulties, which you have told us you have not had problems with.
Your experience has been relatively good, has it not?
Mr. Chalmers: The DOTC CEO is the electoral officer for the tribal
council, and he will explain the problems of that mail-in ballot. I stayed away
from it because it is so confusing to me.
Senator Dyck: If you stay away from the mail-in ballots, how do your
off-reserve people vote?
Mr. Chalmers: We post in papers and tell them across Canada there is
an election. It is in the papers: "Please contact Robert Daniels. Get your
address and name, and we will send you a ballot." I feel it is not me but the
candidate running who should be phoning these guys.
I am worried about breaking some rule that I do not even want to go there.
Someone will say you did something to change that ballot. I will let Mr. Daniels
explain how there are problems.
Mr. Daniels: Within the Manitoba region, the process is that the chief
and council have elections, so they have to appoint an electoral officer. They
pass a band council resolution, BCR, recommending that someone be appointed.
Then the department appoints the electoral officer to conduct the election.
However, in Birdtail Sioux's case, that is what happened. We were asked to
run the election in Birdtail Sioux — recommended by the band and council — and
the department appointed me as the electoral officer. My capacity at that time
was coordinator for advisory services within the tribal council. That falls
within our mandate. David Meeches was the CEO at the time so he was my deputy
electoral officer. We worked together on the election.
In terms of the mail-out ballots, when the notices go out, they are posted
and everyone is aware; we use the previous year's election ballot addresses and
so on. Because they move, people ask for ballots to be sent to different
addresses. In fact, we have even sent out information to them right up to days
before the election, even though we know the turnaround is not big enough; they
will not make it for the election day or the time everything has to be in.
I collected everything at the post office on election day for the mail-out
ballots. I think the majority of them were returned because the people had
moved. When we do count the ballots, there are checks and balances within the
Indian Band Election Regulations where everyone has to sign certain documents
regarding their mail-out ballots. They have to sign a document even if they
bring a ballot in for someone else; they have to sign it. They bring in those
ballots on behalf of their mother, father or whomever.
In Birdtail Sioux's election, we had no spoiled ballots whatsoever. Of all
the mail-out ballots that came back, only one was spoiled in the last election.
The 45 days came and there was no appeal on the election. Therefore, I guess I
am saying the election regulations work if you follow the rules.
Mr. Meeches: I would like to make reference to process. Going back to
my former role as chief executive officer of the Dakota Ojibway Tribal Council,
my observations with respect to the mail-out ballots are that our community
people do not trust them. Whether it is custom or section 74, they do not trust
The primary reason why that process is being so heavily criticized is when
the Manitoba region — and I am assuming it is applies to all regions — when a
First Nation is about to enter into an electoral process, the department
provides that First Nation with its notification and timetables under section
74. There are 79 days or so to appoint an electoral officer. On the back,
attached to your notification, is a list of regionally trained electoral
officers. The First Nation then chooses one of these individuals.
However, there is no transfer of the database for the off-community members'
addresses. Therefore, the electoral officer has to start fresh in terms of
trying to access addresses. Generally, what happens is that First Nation
individual who wants to participate and does not get a mail-in ballots rightly
complains or indicates: "I received this information at the last election. I did
not get it today."
That is because that database is not transferred because everything with
respect to the election is handed in to the department; it is not kept at the
First Nation level under section 74. To me, when you look at my observations
with respect to that, there should be a pool of individuals from tribal council
to tribal council region, who are not only trained to be able to conduct
elections, but trained to be able to provide an educational process under either
current section 74 or future section 74 provisions.
Then you have continuity and a database that is ongoing from election to
Senator Raine: I am finding this very interesting, and it is a
conundrum that you are facing here. Hopefully, we can come up with some
solutions or, at least, some recommendations.
One of the things we were looking at was the potential for holding elections
on the same day for the whole of the province so there would be a common
knowledge that, every so often, it would be a regular occurrence. That way,
people would get used to voting at a certain time of the year, all on the same
I can see that, perhaps, if the Dakota Ojibway Tribal Council is running the
elections, it would not work because you could not obviously work elections for
all the different bands on the same day. Could you comment on that?
Mr. Chalmers: Yes. In my mind, I think it would be practical to run
them at the same time if you had four-year terms. I am trying to figure out what
it would do to the political organizations — the grand chiefs and all that
I would not mind if it is all at the same time, but it would change the whole
aspect of the AMC, the SCO and all those guys because you would have a bunch of
the same or new chiefs all coming in at the same time.
I am worried about our First Nation and having these elections not rip us
apart at the community level. I cannot see it not hurting altogether; I cannot
see it hurting it.
Senator Raine: I am from British Columbia and we have municipal
elections all across the province on the same day. It is not the mayor's turn to
be elected in every municipality. Some are elected one year and others the next.
There is quite a rotation.
It is the same with the councils. Some terms are up and some are not. Looking
forward to municipal elections on a certain day becomes a routine.
Mr. Chalmers: I would agree with you there. I think elections are
quite controversial in our region. I have chiefs going up for elections in our
tribal council this year, and mine does not come for another two years. I am
engaged with these guys in community investments and working together, and I am
not sure if they will get back in.
Do I disengage with my investors? We do not know who will come in. Maybe if
we all stayed together and got elected there, it would affect it in that way. I
really believe the grassroots people should be electing the grand chiefs, not
grand chiefs electing grand chiefs. I have always believed in that. That is
every four years.
Senator Raine: It works for the United States.
Mr. Meeches: My difficulty with that concept is how you get there. I
am not aware of anyone within our tribal council who has a three-year term as I
do. If we decide to do this two-year term, will I give up a year for the sake of
this concept? I indicate truly that I will not. We are scattered. Before I can
agree to any process of that nature, I would first have to see if this is
something my community will agree to. You can appreciate that we listen to
chiefs, but you are not hearing from the people at the community level.
I suggested in Winnipeg that, if you want to get the true picture of what it
is like at the community level, speak to a tribal administrator. You should see
the people who manage our First Nations during an election process. It is
chaotic for us at the political level. As a former administrator, it is that
much more difficult. There is always a deep-rooted fear that, when you are
politically appointed and change comes or when there is an election, you will
lose your job. We recently eliminated a process for our chief executive officer.
The Chair: Thank you, chief. I would like to thank the panel for
sharing your time with us this evening. We had candid, straightforward
presentations and candid, straightforward answers. It has been informative.
Hopefully, we can work this into recommendations. We will not impose or
recommend the imposition of anything on First Nations. We are here to make
Honourable senators, the next hearing is scheduled for Tuesday, June 16, at
9:30 a.m. The committee will hear from representative chiefs from the Province
of Ontario. If there is no other business in public, we will go in camera for
business relating to the committee.
(The committee continued in camera.)