THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
EVIDENCE
OTTAWA, Tuesday, September 19, 2017
The Standing Senate Committee on Aboriginal Peoples met this day at 9:02 a.m. to study the new relationship between Canada and First Nations, Inuit and Métis peoples.
Senator Lillian Eva Dyck (Chair) in the chair.
[English]
The Chair: Good morning; tansi. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples, either here in the room or listening via the Web.
Welcome back, senators, and welcome to our guest this morning.
I would like to acknowledge, for the sake of reconciliation, that we are meeting on the traditional, unceded lands of the Algonquin peoples. My name is Lillian Dyck, from Saskatchewan, and I have the honour and privilege of chairing the Standing Senate Committee on Aboriginal Peoples.
I now invite my fellow senators to introduce themselves, starting on my right with the deputy chair.
Senator Patterson: Thank you, Madam Chair. I’m Dennis Patterson, senator for Nunavut.
Senator McPhedran: Marilou McPhedran, Manitoba.
Senator Christmas: Daniel Christmas, Nova Scotia.
Senator Doyle: Norman Doyle, Newfoundland and Labrador.
Senator Tannas: Scott Tannas, Alberta.
Senator Raine: Nancy Greene Raine, British Columbia.
Senator Watt: Charlie Watt, Quebec.
Senator Boniface: Gwen Boniface, Ontario.
The Chair: We also have Senator Mégie, who is just going to move into another chair, and Senator Pate has just arrived. Thank you, senators.
Today, we continue our study on what a new relationship between the federal government and First Nations, Inuit and Metis peoples of Canada could look like. We continue looking at the history of what has been studied and discussed on this topic.
During our hour-long meeting we will be talking about what new relationships will look like respecting the nation-to-nation, government-to-government, sovereignty treaty relations.
We are very pleased and honoured today to welcome our witness, Mr. Sol Sanderson, Senator, Federation of Sovereign Indigenous Nations. He’s joined by his wife, Elsie, who will probably keep him on track.
Thank you, Mr. Sanderson; you have the floor. As a reminder, we will have to adjourn after the hour.
Sol Sanderson, Senator, Federation of Sovereign Indigenous Nations: Good morning to all honourable senators and everyone else who is here. It’s a pleasure to be here and to be a witness at this hearing.
I’ve been in First Nations politics for 60 years, starting when I was 15 years old, and Barb and I remember the Penner days. We’re going to hang around until it’s all implemented.
I have a few minutes to give you 500 years of history between indigenous people and settlers; that’s not an easy task, but I’ve done it before.
To start off with, senators, I’d like to put a couple of questions to you for the Senate to investigate. There is so much talk about the trust funds that were created by your government and set aside for Indian and Inuit people. That trust fund was the result of the government’s sitting down to decide how they were going to honour the payments due under treaties that they were going to make with us. They agreed that they would set aside a percentage annually of all revenue generated by the government from different sources to be used to honour the payments due to First Nations and Inuit as a result of making the treaties.
I’m asking you to investigate that trust fund, what the status of that trust fund is today and how we can access it.
The other one is the status of the Crown. Under the treaty process, the empire of England, in dismantling the empire and creating the governments of the country, developed a theory called the novation of the Crown theory where they transferred full responsibilities of the Crown in right of Ireland and England to the Crown in right of Canada. We still haven’t patriated the Jay Treaty, and there is still much unfinished treaty business respecting the international status of Treaties 1 to 11.
The UN study on treaties found that Treaty 6 was an international treaty. The other thing that you must know is Treaties 1 to 11 form one major treaty between the Crown and First Nations.
You have a map that I distributed to you that identifies the status of those treaties today. The coloured areas in that map show all the modern day treaties giving legal effect under the federal legislation and jurisdiction and, in some cases, the provincial government and jurisdiction.
The white sections show Treaties 1 to 11, except for the north; the territories overlapped by the modern-day treaties, the pre-Confederation treaties in the east and the Douglas Treaties on the island are all in white because there’s no legislation giving them legal effect.
We exercised our national powers of treaty making long before we met non-Indians on Turtle Island. We made treaties amongst ourselves as nations.
So treaty making wasn’t new to us. In order to keep the international status of these treaties effective, both parties have to give them legal effect under their government jurisdiction and law.
That’s major outstanding business respecting Treaties 1 to 11. I come from Treaty 6 and Cree territory. To implement those, we’ll have to talk about the unique and special forms of the law that are going to be required under First Nations government jurisdiction and law and under federal government jurisdiction and law.
If you flip back to the other side of the chart, there are two samples of what’s happening and what can happen. You see the self-determination one, and I’ll come to that. First, I want to highlight the self-termination chart that you see. That’s based on implementation of the 14th century papal bull and the doctrine of discovery.
There’s a lot of discussion about terminating the doctrine of discovery today, but no discussion on how you terminate the 14th century papal bull. There’s a great discrepancy between the definition of indigenous peoples under the papal bull and the UN declaration today.
The papal bull is pretty clear: Christian instructions suggesting that indigenous people are not human nor Christian, and because Indian people are not human, they don’t have sovereignty and government. Because indigenous peoples are not human, they don’t have title to land and resources, and because indigenous people are not human, they don’t have rights.
I’m talking about the 14th century, senators. We are now in 2017 and we’re dealing with the same issues today. That’s pretty sad. It’s a pretty sad state of affairs.
The indigenous definition under the papal bull is pretty clear. We don’t have status at all. We’re not human at all. We don’t have sovereignty, we don’t have government. The UN declaration is totally opposite of that papal bull instruction. How did they implement the papal bull? Through Christian laws. But they made another law that you should be aware of. It’s called a law of dominance that made it legal to kill indigenous peoples. That’s why you saw the explorers universally slaughtering many of our people, no questions raised about it.
When you look at the 14th century up to the 17th century and those objectives of the doctrine of discovery, the papal bull will still validate the illegal taking of indigenous lands throughout the world. The empires of England, Spain, France and Portugal divided up the world. England had North America, New Zealand and Australia and parts of India. Portugal and France had Africa. Spain had south Central America.
Many historians say that the doctrine of discovery and the papal bull no longer existed after the 17th century. For your information, the empires developed what you call the 1830 detribalization policies, and the objectives were what you see today, including assimilation, integration, civilization, Christianization and liquidation.
How did Canada implement those policies? That 1830 detribalization policy was based on the doctrine of discovery and the 14th century papal bull. Canada developed what you call the 1947 plan to liquidate Canada’s Indian population in 25 years, to terminate the status of our treaties and to terminate the special rights and status of Indians, to start the process of transferring legal fiscal responsibility from federal jurisdiction to provincial jurisdiction in various sectors of health, education, social services, child welfare and so on.
I could go on about what was being done in 1947 under the liquidation plan, including establishing local governments on reserves under provincial government jurisdiction and law. In 1969, the white paper was introduced and it was even more specific on how to develop or construct new law, or amend existing law, targeting the termination of the special rights and status of Indians, and set up the first generation devolution policies to continue with the transfer of responsibilities from the federal government to provincial government for Indian services and health, education, social services and so on. It was the same thing with the Inuit in their territory.
Then came the 1974-76 native policy, recruiting Indians, Inuit, Metis on the front lines to be champions to propose these policies and implement these colonial policies and strategies, still being done today. Now they have the 1980 Buffalo Jump second-generation devolution policies, and refining new, existing laws and constructing new laws to terminate the special rights and status of Indians.
In five minutes, senators, that’s 500 years of history of what we’re dealing with and what you’re expected to make changes on now, and the potential is here to make those changes.
At the bottom of that chart on self-termination, we have a whole series of entities incorporated under provincial law and jurisdiction — not just in Saskatchewan but right across this country — implementing provincial jurisdiction for education authorities, health authorities, child welfare agency authorities and so on, tribal councils, various organizations. On the other side, where they are not under provincial government jurisdiction for implementation, it’s under Indian Affairs self-government policy. That means nothing to how you implement our sovereignty and our forms of government.
Now go to the other side of the chart on self-determination. I developed this chart for several reasons. People don’t have a scope on what the full picture looks like of what’s impacting on us, and as non-Indians. I also developed it because after the new year, I got some calls from our people saying, “What do we do now?” I said, “You have two choices. You can continue down the road of self-termination or you can take the journey of self-determination.”
One other sensitive issue that we have to deal with, and you have to give it some attention, is the issue of sovereignty.
I got a call a few months ago from one of your senior officials in government saying, “Senator Sol, you know that the national powers of governing are not on the table for negotiation.” I said, “I think you’re talking about the Crown’s assumed sovereignty national powers.” He said yes.
I said, “For your information, our inherent sovereignty national powers are not on the table for negotiation, either.” And he said, “You’re not prepared to negotiate relationships?” He has the chart that you’re looking at. He has the documents that support the information on how to implement those new institutions and structures of government.
Sovereignty treaty relations have a comprehensive framework, senators, which is not being respected and recognized. You’re still operating on the other side of the chart, the status quo under the BNA Act and your colonial policies. The comprehensive strategy that you need to be aware of is one of a comprehensive legal-political relationship. The framework is governed by the inherent rights and title, the sovereign relations, the treaties, the Royal Proclamation of 1763, the Constitution Act 1982, UN international laws and the UN declaration.
When we talk about the interface of government jurisdiction and law respecting the inherent sovereignty of our nations and your assumed sovereignty of the Crown, we’re talking about how we implement our forms of government, our jurisdiction, our laws and our courts. It’s the same thing on your side. It’s how you implement your government, your jurisdiction, your laws and your courts.
There’s no reason to be intimidated about your sovereignty here in Canada. Those sovereign relations exist under that comprehensive legal-political framework. And you’re not dealing with that at all today. When you go down the middle of that chart, you’ll see the relationships that I’m talking about, what form of political relations we negotiate and implement, the quality of government, jurisdiction, law and courts respecting Inuit, Metis and First Nations government and the federal provincial governments.
Regarding implementing economic relations , I tabled a major chart with you some time ago on how we will implement a First Nations economy that’s community-based, regional, national, international under our jurisdiction, our governments. We can’t pretend we’re going to benefit from your economy. We’ve tried it over 150 years with your infrastructure and your opportunities and economics. It’s not going to happen.
Under your process, you will assess a provincial and federal royalty fee on all resource development. We will assess a First Nations fee on all resource development, not just on a reserve by band, but throughout our traditional lands and resources territory. And the Inuit, I expect, would do the same thing. The Metis will also have to be accommodated.
When we look at the judicial relations, there’s a critical area. It’s time we implemented our own justice system and our own inherent legal system.
Go back to that chart I was on. You have all those modern-day treaties that you’ve made. You have 47 exploratory tables going on today and 315 bands under Indian Affairs self-government policy.
Senator, no one is dealing with the fact that we need to establish our own justice system, our own courts, our own inherent legal system. If you want nation-to-nation, government-to-government to be effective, we can’t go without establishing our own courts and our own justice system and implementing our own laws and jurisdiction under our inherent legal system.
I’m talking to you now about new institutions and structures that you have to create in Parliament and in the federal government. When we talk about fiscal relations, we’ll occupy the field with our jurisdiction, under our own finance administration acts, with full accountability. We’ll set up our own budgets, create our own budgets, all the work that’s been done historically. I’ve gone through those reports, including RCAP. Not one of you, in the reports, talk about what a budget will look like at the First Nations community level. Not one, senators. It’s 2017, and you’re still using budgets in the form of funds that are allocated to us. Those aren’t budgets.
So we’ll occupy the field under our own jurisdiction, our own finance administration acts. We’ll mandate the legal, jurisdictional responsibility to enter into fiscal agreements under your jurisdiction, under the Financial Administration Act of Canada and our First Nations finance administration act.
In Saskatchewan, we have about 40 bands buying into the Federal Accountability Act that you have. What for when we have the capacity create our own finance administration act providing for full accountability? While I’m here this week, I’m meeting with the Auditor General’s office. Last time I was here, we met with the Auditor General and his people to set up our own auditor general’s office in Saskatchewan. The chiefs in assembly have mandated that.
You’re making accounting firms very rich. Meyers, Norris and Penny has hundreds of third-party-management agreements across this country to do third-party management for bands under your policies and your rules.
Your own Auditor General has told you — INAC, FNIHB, Health Canada — that your policies have no legislative base. To do an acceptable audit under your laws and policies, you need to know what laws are governing program standards. You don’t know, from day to day, what laws are governing program standards federally. It’s time we dealt with that issue too, in the form of constructing new laws and policies. I’ll come to that.
When we look at the implementation and the fiscal relations, you used your creativity to identify how you provide for fiscal relations between the provincial, territorial, municipal governments and Nunavut government. What’s wrong with using the same creativity with respect to our fiscal relations?
Under the Nisga’a agreement, you amended the Financial Administration Act, section 19(1), to provide for grant funding and total funding to the total population of the Nisga’a Nation. Our people get funding for on-reserve Indians, and some of them haven’t even been told that there are two categories of Indians under the Indian Act. All are registered as Indians, but some have no status and no rights. Some have full benefits and full rights.
We have currently, senators, about 11,000 babies not registered in Western Canada today. We have 36,000 young people under child welfare today in Western Canada.
When we look at that whole process of fiscal relations and your amendment to 19(1) of the Financial Administration Act, you provide grant funding under the Consolidated Revenue Fund to the Nisga’a. They don’t chase you around from federal department and agency. There are 234 federal departments and agencies receiving funding from Parliament and finance and revenue today, and over half of them include Aboriginal funding for Indians, Metis and Inuit.
When you look at the amendment, it also invoked sections 87 and 89 of the Indian Act, with a tax exemption for the Nisga’a.
I’ll come back to that as well.
We look at the international relations. As I told Minister Wilson-Raybould in Saskatchewan, “We’re going to validate the UN declaration and implement the UN declaration. You’re talking about our rights, not yours.”
We’re going to validate how? We’re going to validate by identifying all those inherent rights, and, for your information, chair, there’s a clear definition between inherent rights, indigenous, Aboriginal rights, treaty rights and human rights. But you don’t go there. Even the courts have failed to recognize that, and Judge Lamer and others have also identified, in the Supreme Court, that our rights are not defined.
Like I told the Justice panel on section 35 on Friday — former Supreme Court Justice Ian Binnie was the keynote speaker there — when we look at that whole process of implementation of inherent rights, they are granted to us by the creator. Sovereignty, inherent rights and title are all granted to us by the creator, and they come from no other source. They don’t come from a treaty, a constitution or any man-made laws. They’re governed by the relationships between humankind and nature, and they’re governed by our world view, our philosophy, our traditions, our customs, our practices, our beliefs and our values.
We will define each of those inherent rights, which includes all our inherent rights to health, education, social development, justice, economics, lands, resources, citizenship, our own self-determination and our own forms of government. Also, when we look at that process, we’ll identify the rights we have to air and water.
There’s a whole range of inherent rights that we have, and we’ll define them under our respective languages, based on our world view, our philosophy, our traditions, customs, practices, values and beliefs.
When we define them, there are also, senators, collective duties and responsibilities associated with each of those inherent rights that we have, and they reinforce individual rights. When we identify those, we will develop the plans and strategies for how they’re implemented by sector. When we do that, it will provide lawful instructions on the form of law that we need to implement, giving them legal effect under our jurisdiction and our laws by sector.
That’s our responsibility, senators, to develop and implement the UN declaration. From there, then you can at least get some form of instruction on the form of a federal law that’s needed to honour and respect that UN declaration.
When we look at those relationships, the Prime Minister announced, the other day, a new ministry of Crown-Aboriginal relations. As far as I’m concerned, those relationships that I just highlighted for you have to be in that ministry. Secretariats should be established for each of those areas: political relations secretariat, treaty relations secretariat, judicial relations secretariat, economic relations secretariat, fiscal relations secretariat and an international relations secretariat.
That framework does something else. It identifies clearly that we have inherent rights and title. We have sovereignty. We have treaties, and we have treaty rights. So how do you implement the spirit and intent of treaties that our people always talk about? You implement them, senators, under a new federal law and we under our own First Nations law, along with the Inuit and the Metis, in the form of implementation of inherent rights and treaty rights to education. How? By developing a First Nations inherent rights and treaty rights education act in the form of a traditional, contemporary education act that scopes out full jurisdiction for education at the community level. We delegate to our own education districts as part 2 of that act and, as part 3, to the regional level, with regional authorities that we establish under our jurisdiction and law, not integrating into provincial systems. We don’t need that, and we don’t want it. When we look at that whole process, that form of legislation is required in every sector, and we talk about that, senators.
I want to give you an example of some of the sensitive areas that you’re having to deal with, and nothing is really being done about it. Taxation. I’m putting together a comprehensive document that shows how much it costs to run this federal government and Parliament, your 10 provincial governments and legislatures, two territorial governments and their legislatures, the Nunavut government and your urban municipalities, almost 4,000 of them, suggesting that we are the taxpayer’s burden. When you see that picture, senators, you will know who the taxpayers’ burden really is. But we want our share of that revenue.
We talk about fiscal relations in financing, but when do we examine the source of revenue that is available to all of us? Our percentage of revenue is much higher than what’s being provided today.
When we talk about the implementation of taxation, your own revenue department did a secret study a few years ago. What did the study tell you? It said there are two categories of tax you have to look at. One category is tax immunity; the other is tax exemption.
When you talk about tax immunity, what is that? We have tax immunity because we have sovereignty. We have tax immunity because we have a treaty. We have tax exemption because there are provisions in the treaties that provide for goods and services in the form of education, health, social services and so on. We have tax exemption because in the treaties it provides for socio-economic development. We have tax exemption under sections 87 and 89 of the Indian Act. Why are we still paying your taxes and getting nothing back?
We’re going to occupy the field of taxation with our own tax regime. We’ll identify our forms of tax exemption and immunity, not just by community but regionally, nationally and internationally. We’re not going to run a First Nations economy internationally without going there.
The other one is the Indian Act membership issue. You want to do away with the Indian Act? Well, let’s examine the issue of citizenship.
When we made Treaties 1 to 11 — the international treaties — the Crown recognized our jurisdiction over membership and citizenship. You didn’t have Indian Act membership lists, you had treaty unity lists that acknowledged the status and the rights of our people to decide who would be members of each community.
When we talk about that jurisdiction, we made the treaty with the Crown in right of Ireland and England. They extended dual citizenship status under the treaties in the form of British-subject status. That’s the dual citizenship we have under the treaties with the Crown in right of England and Ireland.
You created the Indian Act to make us wards of the government. When you look at the international treaties, they have to be implemented in the form of new citizenship law. When we talk about dual citizenship status, we have dual citizen status of Native Americans under the Jay Treaty.
What else did you do, senators? You know section 35 of the Constitution Act of Canada. Section 35(2) recognizes Inuit, Metis and Indians in what form? Not members of Canada; it’s a form of citizenship in Canada. I’m a citizen of the Cree Nation. I have dual citizenship status as a Canadian, with full benefits and rights. When you amend your Citizenship Act, you have to incorporate a part that deals clearly with this arrangement, with the full benefits and rights of Indians under the Citizenship Act and recognizing our jurisdiction over who will be a citizen of our nations and our communities.
Those are a couple of examples of the form of new law that’s needed in the form of specific and special legislation. Don’t tell me you cannot do that either. You already have French law in the province of Quebec implementing the Civil Code, English law for the rest of Canada.
Now you have the James Bay Cree-Naskapi (of Quebec) Act and the Nisga’a Final Agreement Act. So when I talk about the need for new forms of legislation to be implemented, that is the kind of stuff I’m talking about.
Your own people failed to recognize the status of the Crown. Assuming it no longer exists under your Crown’s assumed sovereignty, you have never dealt with the unfinished business of the novation of the Crown theory, and you’re not respecting the recognition of our Treaties 1 to 11 as being international treaties. I ask why.
When you look at that whole process of the Royal Prerogative of the Crown, when do you acknowledge the Crown’s existence? That’s the only time you recognize it, when you assert the Royal Prerogative of the Crown with unilateral authority to determine issues impacting us where there is no law governing the issue.
The ministers and even some senior officials have invoked the Royal Prerogative of the Crown to deal with our issues, with no laws governing the status of those issues that have to be addressed, but unilaterally determining them and using them to terminate reserves, band status and other issues affecting us. I don’t see you using the Royal Prerogative of the Crown on any non-Indians. It’s all used on Inuit, Metis and Indian people and our governments.
When do we come together in processes? You have all these processes going. To sustain the process, senator, we need new legal and political institutions and structures of Parliament, the federal government, First Nations, Indian nations, Inuit nations and the Metis Nation. We need new legal and political institutions and structures.
This Senate committee should have a formal committee of sovereignty treaty relations respecting what I’m talking about having to be implemented. Put some teeth into your committees that have some authority to move ahead with these types of agenda items.
There will be internal resistance. It is there all the time. We remember the Penner days — a lot of resistance internally. But as we discussed with the Minister of Justice in Saskatoon, that internal resistance is not only with your people. The internal resistance is with our people as well. How do we move ahead with respecting the jurisdiction of laws and policies under First Nations government jurisdiction?
There’s a real need, senators, to provide for comprehensive education and training to everyone. The whole historical relationship that I gave you in the last 20 minutes is not known, never mind being understood. I don’t know how many Senate members are here. I see a couple or so that might know that those treaties you made with us are international treaties. The ones in colour on that chart I gave you are called “domestic treaties.” Why? Because only one party to the treaty gave them legal effect. That’s why there are domestic treaties. Our treaties are international treaties that need to be given legal effect under the jurisdiction and governments of First Nations and the Crown in right of Canada.
The interface of government jurisdictional law will also require the interface of jurisdiction of laws. You’re doing that with the French Civil Code in Quebec and the English common law in Canada. It has been done across the border between tribal, state and federal governments. When do we move to accommodate the First Nations indigenous law with respect to how it interfaces with your English common law and the French Civil Code?
I think your committee, in looking at your new institutions and the future, has to examine how that will be done and implemented. On Friday I told them, “Look, one of the new institutions in your justice system will have to create four seats in the Supreme Court of Canada representing indigenous First Nations law.” You already have four French judges enforcing the French Civil Code of Quebec and the rest enforcing the English common law of Canada.
I’ve given you a document, senator, on how we need to implement new legal and political institutions and structures in the federal government and Parliament. That document clearly identifies the type of new offices and new structures needed in the federal government, with the justice department establishing a First Nations indigenous federal judicial relations division, with Finance and other departments doing the same thing.
The Prime Minister has now announced a new ministry that can move ahead with the implementation of those relationships, but in the restructuring of Parliament, we need that reconciliation council that former Judge Sinclair of the commission recommended. I told him he didn’t give it a home. He said, “I gave it a home in Parliament,” but we also need a treaty commission institution in Parliament as well.
Those things can be established right now, senator. If we’re going to sustain the momentum that’s here now, we need to establish new legal and political institutions as structures of Parliament in the federal government and First Nations, Inuit and Metis nations now — not 11 months from now when you’re going into a federal election. And all parties, senator, have to buy into this process. And those colonial policies that I talked about, the 1969 white paper was Liberal policy; the 1980 Buffalo Jump was Conservative policy. The NDP try to say they weren’t part of those policies. I lived in Saskatchewan all my life, and over half of that is under NDP government, and they have many of these same policies. We don’t have one party in Canada that hasn’t been engaged in implementing those colonial policies of devolution and self-termination.
When we look at this whole scenario, I would love to have had at least a day and a half with you to go into depth on all these processes now where in your information you have changed your consultation policy now to engagement policies, by reform by sector: reform in education, health, social development and justice. And you can only be there by invitation. You can’t go there on your own. The engagement process is now restricted to invitation only, and in some of the first processes that I have seen you’re inviting Indians who are working for you, in that process. What the hell kind of process is that?
What does section 35 do? I was there from start to finish on section 35, and everywhere I’ve gone, I can look around this room here, and I didn’t see any of you in London, England. I spent many days over there all by myself, senators, dealing with having to maintain section 35 in the Constitution.
I’ve given you the background now of why it’s there, but each time I went to those meetings with the committee in the House of Lords and the Foreign Affairs Committee of cabinet, they said section 35 is an empty box. I said, “How in the hell can it be an empty box? Did you not pass the Royal Proclamation of 1763? Yes, you did.”
What does it do? It recognizes the sovereignty of our nations. These are the words of our late Judge Dickson. When I sat down with him, he was rewriting the terms of reference for the royal commission, and I took my charts to him. I was a chief then, and he said, “Chief, never let them leave out the Royal Proclamation of 1763 in the Constitution and the framework, and here’s why. It recognizes your sovereignty of your nations and your national powers of treaty making, it establishes the treaty making between the First Nations and the Crown, and it recognizes all of your inherent rights and title.”
He said it’s the recognition of our inherent rights and titled sovereignty in the form of a bill of rights. That’s our royal instructions that form the laws of Canada today. He said, “You will still need your own charter of rights under your own government, jurisdiction and law.”
You look at the application of section 35 today. I told the Minister of Justice, “Look, section 35 expands your powers and your jurisdiction under section 91(24) in a major way. You can now legislate, and you have the capacity to legislate in every sector impacting on our relationships and our arrangements under sovereignty treaty relations implementing inherent rights and treaty rights by sector.”
But section 35 does something else. Section 91(24) has been delegated to Indian Affairs in the past as a ministry. Section 35 impacts on all ministries, the Prime Minister’s Office, the Privy Council and every department and agency federally; it’s not restricted to any one ministry. As I have always said, the treaties provide the portability of our sovereignty, our inherent rights and treaty rights and treaties. Section 35, senators, now does the same thing: It provides for the portability of our status in terms of our sovereignty, our rights, our treaty rights and inherent rights and treaties.
The Chair: Senator, we only have about 20 minutes left, and I know some senators would like to ask you questions.
Mr. Sanderson: Okay. I think I gave you a lot to think about.
The Chair: You definitely have, and I know you also have lots and lots of information that you have shared with me that I tabled with the clerk previously.
I know that you are holding up the booklet with the new institutions and structures. If we could consider that, if you could table a copy it could become part of our evidence, because you have information that you have not been able to share. As you said, I know you have some tremendous ideas, but in the time we have for you, you weren’t able to get through all of it, so if we could get a copy of that, we will distribute it to our analyst and the members of our committee.
Mr. Sanderson: I will leave this other one, this policy document on the implementation agreements by sector. It lays out the scope of First Nations law and new federal law needed by sector. This has been adopted by the chiefs in our assembly and the one that lays out the scope of laws that are needed was also tabled at the Treaty 1 to 11 gathering in Edmonton. Over 300 chiefs and proxies were there, adopting and modifying that schedule of law. I will leave these two documents.
Senator, one of the other ones I want to leave with you is the latest information on implementation of what I’m talking about, and I can leave that. It includes the document on the scope of the legal political framework and the implementation of section 35.
Now, the budgeting document I put together 25 years ago on how a First Nations community can provide for implementing and creating a budget. As I said, no one has gone there or done it, and you’re expecting them to move ahead with new fiscal relations. I want to leave a copy of this as well. We thought we did a hell of a good job on it, senators, but when we looked at it we forgot to budget for the sector called justice, and we need to add that sector.
The Chair: Thank you. We have several senators who wish to ask questions, starting with our deputy chair, Senator Patterson.
Senator Patterson: We’re very privileged to hear from you, senator, and benefit from your lifetime of passionate work on behalf of indigenous peoples, so thank you. It has been very timely to the study we’re doing about the new relationship.
I will try to make this very brief.
At the beginning you referred to an agreement at treaty making that a percentage of revenues would be set aside to make payments for treaties. I wonder if you could give us more detail about how those commitments were made. Maybe that’s in the documents that you’re going to table, but I’d like to learn more about that process and how that happened.
I will try to make this very tight. You talk about First Nations governments grounded at the community level and having real community budgets, rather than the contribution agreements that we all know about.
First Nations people are increasingly living off-reserve, and that may be due to the neglect of the Crown in properly providing services to reserves. I’m not blaming anyone who doesn’t live on-reserve and has moved off-reserve, but increasing numbers, as you know, are off-reserve, living scattered throughout Canada in urban communities; and, of course, the Metis as well are intermixed with the non-Native population.
You’ve talked clearly about setting up a sovereign level of First Nations government. I’m just wondering how that can be organized when we are not just sure of where the residents of that government would exist and would live and how they can be organized. I don’t know if I’m making myself clear, but can you address that please?
Mr. Sanderson: Yes. On your first one, when you go into your own records, you’ll find discussions by officials and ministers talking about if we make the treaties, how we can honour our commitments. In that discussion you’ll find them talking about the need to set aside a percentage of revenue annually to honour those commitments. You should be able to find that in your records, and it will describe to you in more detail what they intended do annually to create that trust fund.
With this other one on community-based government, I’m talking about our traditional form of government. You’re familiar with your system of governing, and I want to say that your system of governing is top down.
Ours is community-based.
The inherent rights of self-determination and the powers of governing are with the people and members of our communities, not with the chief and council. Where did you learn democratic systems of governing from? Most of the people who have come to Canada come from countries that had only dictatorships, not democratic systems of governing. You learned democratic systems of governing from our systems of the kinship clan systems, and the functions of the clans incorporated a lot of the functions of your executive, legislative and judicial branches, and administrative management systems.
We had portfolios in our governing system. They weren’t called portfolios. They were highly structured and disciplined societies in every sector that we were governing on. Those societies weren’t restricted to only one nation. Some of these societies crossed over into other nations on Turtle Island, not just Canada. When we look a community-based governing system, then, you already had overlapping jurisdiction for your own citizens. When you live in Ottawa as an MP and you’re back home as an MP, nothing changes for you. You have overlapping jurisdiction and benefits in every one of those jurisdictions. We’ll have overlapping jurisdictions as well, and you already accommodate the Nisga’a Nation as having a local government in Vancouver for the Nisga’a citizens in Vancouver. That’s what I’m talking about. Use your creativity to accommodate what you want to do and how you can do it for yourselves. We can do it in the same way.
When we talk about dual citizenship status, we need to have our own. Why does an Inuit have to lose their status when they marry into Cree territory, or why does a Cree lose their status when they marry into Inuit territory? What it wrong with us having our own dual citizenship for our people? Nothing.
So the kind of thing you’re asking about, senators, you’re already doing. You have overlapping jurisdictions in federal, provincial and municipal governments. In new institutions and structures, you’ll need to find a way of accommodating how we implement our jurisdiction and law, respecting yours.
Senator Tannas: Thank you very much to both of you for being here today. As an aside, I think that — and you mentioned this in your presentation — whatever the result is, if we can ever find a way forward and agree on it, it will have to be explained clearly to the other 90 or 94 per cent of Canadians who are not of Aboriginal descent. And it will have to be explained to Aboriginal people, too, that this is the way forward.
I’ve been on this committee for four and a half years, and it is not clear to me what perfect looks like. What we were hoping to do with this study — we’re finishing the history, and you’ve given us a lot of good information, as others have, about the history — is that now we’re saying the answer is going to be looking forward into the future and trying to develop principles that come from a vision of what perfect looks like for your grandchildren and their grandchildren. What does it look like? What do they do every day in that perfect world? How do they interact with other Canadians, with their culture? What do you suppose their life would look like in perfect?
I would ask you a couple of questions along these lines. Could either of you tell me, what would you like for your great-grandchild’s life to look like, as an adult or as a child living in Canada, under a system where all of this is behind us because we have structures in place that you would approve of looking down from heaven someday?
Could you give us any guidance that will help us form principles so that we can then try and find our way forward? I have to tell you, with everything I heard, my head is just spinning. I don’t know how to formulate a solution or principles out of what you said. So I’m wondering if we could impose on you to give us some future-looking thoughts about your own descendants.
Mr. Sanderson: That’s a good question because you can also look at the French Civil Code in Quebec and the English common law. You’re quite comfortable as a French man in Quebec functioning anywhere in Canada, including this province, without changing your status or identity. I’m a Cree. Right now, my great-grandchildren, my câpâns, are registered as Indians with no benefits or status at all under your current law.
Senator Tannas: Where do they live?
Mr. Sanderson: Prince Albert, Saskatchewan.
When we talk about off-reserve, on-reserve Indians, I just told you, our sovereignty and rights and status are portable. Whether you’re an on-reserve or off-reserve Indian, with policy, right now, you don’t have to wait. Get rid of it now. When I talk about me being a Cree, I want all my grandchildren and great-grandchildren to be Crees, fully identified as a Cree, recognizing their full status and their rights as a Cree, their culture and language as a Cree. They can function anywhere, as you do, in any capacity, with full representation and participation when they have that status secure, and that’s what we have to do under our laws and jurisdiction.
That’s what you have to accommodate, as you have done for yourselves, French-English common law, French Civil Code and English common law. But it doesn’t violate your status, your identity or your benefits. Yes, you will need to have special rights and benefits under the treaties and our inherent rights. And yes, it will take a hell of a lot of education, but you know what you’re doing now? You’re implementing reconciliation through universities, and what are they doing? They’re offering new training and education with your funding that we’re trying to access for our First Nations University of Canada to do the training I’m talking about. You’re training Indians in universities on how to colonize Indians, Inuit on how to colonize Inuit and Metis on how to colonize Metis. That is not reconciliation, senators. You want education? Let’s get on with some real fundamental basis of education in this country.
One of the most sensitive ones I’ve talked about is sovereignty. As you sit here today, your government and your Parliament are resisting the recognition of the inherent sovereignty of our nations, even though you have Supreme Court instructions that are valid. Reconciliation has to be addressed under that comprehensive legal-political framework. You have little frameworks for fiscal relations, for reconciliation, a little framework for 94 calls to action and for reform of justice. That comprehensive legal-political framework governs all of those initiatives.
Why are you going to create little frameworks for all those when the comprehensive legal framework is there? I understand and appreciate what you’re talking about in terms of your head spinning. You should have seen the Justice people on Friday in the presentation I made over there. I said, “I’m not here just to provide you information. I’m here to help brainwash you.”
Senator Sinclair: I was at a meeting, senator. I welcome you and apologize for being late for your presentation.
I was at a meeting where assimilation was the topic. One of the speakers, an indigenous leader, said, “Nothing wrong with assimilation. In fact, our plan is to try to assimilate all of you.”
I recognize that we’re at a point in the day where we’re nearing the end of your presentation, and there are many issues that we want to try to learn from you in the time that we’ve got. I appreciate the documents that you’ve given to us because I’ve seen them in various forms to this point in time.
One of the topics that this committee is going to try to address and concern itself with is the question of what self-government will look like in the future, and that begins us thinking about the question of what the instruments of self-government are at the local level. Are we talking about expanding the powers, the jurisdiction, the authority of those entities that are now entities created by the Indian Act? Are we talking about creating some other form of entity? Are we talking about organizing or facilitating the organizational structures of the Cree Nation to become an entity of self-government? Are we talking about doing it on a treaty basis? Are we talking about doing it on a regional basis?
I wonder if you might share some thoughts about that with us before you leave here.
Mr. Sanderson: Yes. Senator, I appreciate that question because it’s coming up internally as well amongst our own people, and we have to scope out the broad base of powers at the community level. Like I said, inherent rights and powers are with the people and the families and community, and the broad base of powers includes how we regulate our internal, external and international affairs through our governing systems.
A political organization and governing structure has to be established that recognizes formally, in today’s terms, the legislative branch of our government, which is members of the community, family reps to a family council, with the powers of governing, still having the chief and council and the boards and commissions forming the executive branch. The family council and the members in assembly will form the legislative branch, and the executive branch, like I said, will be the chief and council, the various boards and commissions and senior management. We’ll set up our judicial branch to establish our restorative justice system.
Your system is a punitive-type justice system that exists today. Our system is restorative justice, having to restore balance and harmony wherever there is an offence committed by an individual on community or family, and we look at the process then. From the 1900s to 1950, we had chiefs and councils elected under the Indian Act, with the Indian agent in full charge of everything. One of the reasons for that, as you know, is that it was against the law for us to assemble under the Indian Act until 1950.
So, in 1960, the federal government set up what you call self-administration structures, implementing federal and provincial law and jurisdiction. That was in 1960, senators.
In 2017, we’re still doing the same thing. We don’t have formal, political, organizational governing structures. So, in the federation of nations, for example, we went from the splinter groups to the Union of Saskatchewan Indians to the FSIN in 1980. In the early 1980s, we went to the federation of nations, under a convention, which is a political agreement that is ratified by all the bands of Saskatchewan. We travelled the province for two and a half years to get it ratified by the members of the communities, not just by chief and council.
That political agreement is forming the federation of nations that crosses the boundaries of four nations, the Sioux Nation, the Saulteaux Nation, the Cree and the Dene Nation. It crosses the boundaries of the treaties that are there. It accommodates the political recognition of the autonomy of each community. The treaties only recognize communities and political units of their respective nations. It’s the Indian Act that created bands.
Under the convention of the federation of nations, we already have the capacity to implement the FSIN that recognizes the political autonomy of each of the communities, under their political organization and governing structures, and the tribal councils.
How we implemented the convention of the FSIN is called the Convention Act. It formally puts in place the governing bodies of the FSIN. We sit in lawful assembly, the chiefs in assembly. Those seats are designated to their communities, not to the chief. We sit in those assemblies, making law and policy, like you do here in Parliament and in your legislatures. That’s a lawful political assembly already in place. The governing bodies of the executive and the executive council are all legislated under the Executive Act establishing those governing bodies, with their functions, duties and responsibilities.
We need to do the same thing at the community level on how we clearly identify the roles and functions of the chiefs and councils and their governing bodies. The tribal councils, again, were incorporated under your policies, federally. They are not having to be incorporated now. We can have the Prince Albert Grand Council Convention Act, implementing the convention that forms their political organization and governing structures under our First Nations government jurisdiction and law.
When we look at the status of our governing systems, then, we’re implementing our inherent sovereignty and our forms of government based on our traditions, customs and practices, and you’re familiar with those. But, like I said, senators, it’s time we reinstated some of those highly structured and disciplined societies that we had, implementing the functions and duties of government, but all under our own government jurisdiction and law.
Senator Watt: Thank you, Mr. Sanderson and his wife. We are happy to have you here. You and I have been focusing on a lot of those issues that you have brought forward over a number of years. I would say that we started off leading up to 1982. Many years have passed.
There are a lot of subject areas that have to be revisited and dealt with to come up with conclusions, matters that you have brought forward. Those are very important steps that have to be taken by the “system,” I guess you could say, by the government, by the Parliament, including the Senate.
We are almost at the point of probably another election coming up soon, and the question is, are we going to repeat this again after the election, dealing with the same subject matter, such as not really knowing exactly where we are going, at least from the Parliament side. They have not given any directive in any shape or form. Neither have we, as an Aboriginal people, come forward with a tangible solution that we think could work. Those are long overdue.
If we continue to wait for the Government of Canada or the Parliament to come up with a solution or proposal, I don’t think it’s going to be coming. I think the onus is on us to do what we can to come up with a solution and put forward those tangible solutions.
Now, you have brought forward a lot of subject areas that no one, up to now, has brought forward. This pretty well, the way I understand it, encompasses areas that we have to visit and also have to find a solution for.
Keeping that in mind, you only had one hour to make your presentation. That’s not enough; that’s not good enough.
Continuity of your presentation is going to have to be seriously looked at by this committee because you have brought a lot of information to this table here, and we have to decide, as a committee, how we are going to shorten it and deal with it. Keeping that in mind, I’m concerned about the continuity. We don’t really have a system within the committee itself that would allow you to be recognized and put aside that this is a very different person that is bringing in a new subject matter that needs to be dealt with.
I wish this committee would come to realize that you have brought forward a lot of information that we have to deal with. At the end of the day, the senators here, on the Standing Senate Committee on Aboriginal Peoples, have to come up with some recommendations.
Before that recommendation is brought forward, I would like to have a bit of influence over my colleagues to make sure that we bring you back again. It may be not once but several times in order to be sure about what we are going to bring forward as recommendations.
I would like to make that recommendation because I don’t have the time to go into the other areas which I wish I had. But you don’t have the time and I don’t have the time right now because the time is running out today.
Senator Pate: Thank you very much, Senator Sanderson. I thank you too for your life’s work; I feel like I’m in kindergarten in your initiative. I’m going to ask you about an area about which I feel a little more like I’m maybe in Grade 1, and that is some of the work in particular that you’ve talked about, and other materials that I have had the privilege of reading around the work that needs to be done around justice and social justice and some of those sorts of areas.
My question is twofold: Is it possible to do this in an incremental way? Is it possible, for instance, to tackle some of the social justice issues separate from the overall sovereignty? I ask that in a humble way. I heard what you said about the need to develop an overarching look at the sovereignty of First Nations and Inuit and Metis people, but is it possible to do it incrementally? One of my fears, and I ask for your comments on this, is that there may be the potential for some of the justice areas to be examined separately, but I also fear that that may lead to an offloading onto indigenous communities of the issues now, including multiple generations of the impact of colonization that you’ve spoken about in other areas: suicides, mental health issues, child welfare and over-incarceration.
Is it possible to do it in an incremental way? How do we do that in a way that decolonizes? Some of the justice committees that I’ve had the privilege of meeting and engaging with have very much almost accepted the colonial structure and are even trying to do restorative justice in ways that are very much colonized. I invite your comments on that. I apologize if it’s so rudimentary that I should know it, but I don’t.
Mr. Sanderson: That’s a very good question. It comes up all the time. You see, what we’re dealing with here, on this side of the chart, is all based on administrative agendas and prioritizing item by item, never mind sector by sector.
As a leader, I’ve never prioritized anything. I’ve always worked across the board. If you want to prioritize, you can prioritize in education or in health and in various sectors, but never prioritize education over justice, justice over economics and so on.
You need to elevate that agenda to a political agenda. That’s the major resistance right now. Everybody is stuck on the administrative agenda and not moving it and elevating it to a political agenda that deals with the kind of thing that I just presented to you.
On the funding side, it’s serious not only to create new legal institutions and structures of government now. We need to get serious funding made available to First Nations. For all the documents that I brought to you here and all the work that I’ve done, there was no money. I’ve done it on my own.
My trip here was on my Aeroplan points. That’s what I call the colonial SWAT strategy: special words and tactics, economic intimidation, fiscal intimidation and judicial intimidation.
If I had half the money any one of you senators is getting, you’d have a hell of a lot more information here than I’ve got now. I’m just kidding.
But those are good questions. That’s the major problem right now. We’re stuck at this administrative colonial level. We need to elevate to that sovereignty treaty relations level, and that political level. You have to go there as a Senate. You’re one of the national institutions of Canada. Do you want to maintain security and sustainability? Create a sovereignty treaty relations committee of the Senate. Can you do that? Yes, you can do that. So do it. You see, in my position, I get questions and suggestions, and I say “do it.”
I’m suggesting, senator, as the chair of the Senate, I want you to examine how you can move ahead with creating a sovereignty treaty relations committee of the Senate here. Let’s get serious. If we’re serious, let’s do it. Let’s not be afraid of talking about sovereignty. Let’s not be afraid of talking about the interface of jurisdictional law and government.
I hope that provides you a bit of an answer to your question. Like I said about the logistics of prioritizing, I can prioritize within a sector, but I never prioritize sector over sector.
Senator Pate: Would you see an incremental change then as essentially prioritizing? I’ll give you an example of one of the areas in which a number of us are trying to encourage communities to actually use the legislation that currently exists to bring back people from their communities who are currently imprisoned. There are sections in the legislation that allow that to happen, but the policies have limited that. So the money that’s currently being used to jail people could be in communities. That would be an incremental way. I wouldn’t necessarily see it as prioritizing justice; I would see it as getting resources back to do some of those things. When we’re talking about women, our parliamentary budget officer says that’s $348,000 a year. That a lot of money that could go into communities. That’s some of what I’m thinking.
You’re smiling so it probably sounds like a stupid question, and I’m happy to be corrected.
Mr. Sanderson: I smile, senator, because that’s come up too. Let me give you a glaring example of what the logistics and problems are. On the reserve, we get $7,000 per student for tuition. If that same student leaves the reserve and goes to a joint school, they get $18,000 for tuition. If that same student gets in trouble and enters into your correctional centre, that’s $120,000 a year for that student. Give me $120,000 a year per student in tuition and I’ll show you what we can do. You see?
You want to empty those jails? Pardon 80 per cent of them right now. They didn’t commit any major criminal offence. Let them all out. What are you keeping them in for? Give us the $120,000 per inmate in the community and we’ll show you what we can do with that in terms of their economic opportunities in education and training.
I hope that clarifies the question.
Senator Pate: That was excellent. Thank you.
The Chair: Thank you, senators, for your questions. I want to give my special thanks to Senator Sol Sanderson. You’ve provided us with some very important information. Thank you for tabling the documents. Thank you for encouraging us to be revolutionary in thinking outside the box. We will certainly take your suggestions to heart about how we interact with a special committee because we do have some power, and perhaps we need to think outside the box ourselves instead of always following what has been done in the past. Perhaps it’s time for us to think of different ways of moving forward in the future.
Thank you so much, again. We will certainly give serious consideration to having you return because you have such a wealth of wisdom to share with us.
(The committee adjourned.)