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Friends, Following is the first of a series of articles which I am sending out by e-mail (and by fax to friends who do not have e-mail) in response to the news that the Senate Committee on Aboriginal Peoples will shortly produce a far reaching report on the repeal of the Indian Act. Please feel free to use these articles as you see fit (giving proper credit in the case of publication). The purpose of these articles is to provide a broad overview on the work of the Senate Committee on Aboriginal Peoples which has, by and large, received very little coverage in the mainstream media. I offer no opinion on the desirability of the rumoured recommendations, or on the accuracy of the rumours. I do offer opinions (or an analysis) on how this committee has worked and how its work compares with other Senate committees and other public inquiries. I hope this material is interesting and helpful. Michael Posluns. Sunday October 31, 1999 CAN YOU HAVE A PARTNERSHIP WITHOUT CONSENT? This article will be the first in a series providing an overview of the Senate Committee on Aboriginal Peoples since November 1998 against the report that it will shortly present a report recommending that the Indian Act be scrapped and that the powers of the Indian Affairs Department be drastically scaled back while an Aboriginal court be created with powers of a federal court. (While the Committee’s hearings run close to 30 proceedings, for ease of transmission by e-mail I propose to limit each part to no more than five pages. .For the same reason I am avoiding using any of the print commands such as bold, or italics which will not survive pasting into e-mail. Specific references will be available upon request. Permission to reproduce or to quote in whole or in part with proper acknowledgment is given.) First, although the members of the Senate Committee may, indeed, be continuing to work on a final report there are no formal meetings, including in camera meetings listed on the Committee’s web site. WHAT IS “ABORIGINAL GOVERNANCE”? In December, 1997 the Senate adopted a resolution authorizing the Senate Committee on Aboriginal Peoples to conduct a study on what it called “Aboriginal governance”. This is a peculiar term not commonly used before and one which may account for some of the results which are likely to follow. Scanning the CD-ROM of the Royal Commission on Aboriginal Peoples (RCAP) the term “Aboriginal governance” does not arise in the four volume final report. The two words do appear in the same paragraph quite often but the Report typically speaks of Aboriginal self-government. One set of studies used the term “aboriginal governance” as a way of referring to the totality of all the kinds of administration which have been endured by Indians in Canada as well as those to which they might aspire. The use of the term “Aboriginal governance” as something which might be cultivated by a Senate committee report and, quite possibly, by subsequent legislation, appears to introduce a new term, and one about which folks who care might want to ask, “What does this mean? How is it different from what RCAP discussed? How is it different from what Penner described as “First Nations Self-Government?” HAS CANADA EVER HAD AN ABORIGINAL POLICY? The term “aboriginal” (uncapitalized) came into widespread usage with the passage of the Constitution Act of 1982 including s.35 “Rights of the Aboriginal Peoples of Canada.” Section 35 defines aboriginal peoples as including “Indian, Inuit and Metis” peoples. On the other hand, the government has historically and even currently denied responsibility for non-status Indians and even for status Indians living off reserve. When the Commons Committee on Indian Affairs changed its name to the “Commons Committee on Aboriginal Affairs and Northern Development” I wondered if they were getting ahead of a change in government thinking. If Canada ever did have an Aboriginal policy, one that recognized that all “aboriginal peoples” are “Indians” within the meaning of s.91(24) of the Constitution Act of 1867, it is not something which has been publicly acknowledged for many decades. Nor is there much likelihood that a Parliament whose mood is shaped so largely by the Reform party is about to expand the scope of federal responsibility. Nothing said so far by a minister or senior official suggests that this is the case. This makes all the more interesting the idea of having a committee on “Aboriginal governance” chaired by an Inuit senator from northern Quebec, Charlie Watt. There is, of course, no reason why he ought not to chair the committee. There is, however, the danger that his role as chairman is liable to confuse the non-aboriginal members of the committee into thinking that they might be able to formulate an overall concept of “aboriginal governance”, one which would apply to Inuit communities in the Arctic, to Cree communities around Hudson and James Bay and to Nishnabe communities further south and to Haudenausonne communities much further south. HOW IS “ABORIGINAL GOVERNANCE” DIFFERENT FROM “FIRST NATIONS SELF-GOVERNMENT”? It is also significant that the committee proposes to table a report using new terminology after hearing from perhaps forty witness groups. When the Commons Committee on Indian First Nations Self-Government, chaired by Keith Penner, a Liberal from Kenora Rainy-River in northwestern Ontario, a riding with a large majority of First Nations people, presented its report, the late Prof. Sally Weaver said that “the Report’s most striking quality is its explicit incorporation of the terminology used by Indians to describe themselves.” The decision to strike a committee to study “Aboriginal governance” to which, unlike the Penner Committee, no First Nations organization was invited to name an “ex-officio” member, at the very least put the Senate Committee on Aboriginal Peoples at a severe disadvantage. Their decision to work without the courtesies and consideration shown to the peoples under discussion and their own institutions will throw serious doubt on the credibility of this committee’s report regardless of what it might say. THE EXAMINATION OF NEW POLITICAL AND STRUCTURAL RELATIONSHIPS The Committee did issue a Discussion Paper at the beginning of its work which it also posted on its web site. How many First Nations communities or organizations actually received a copy of the discussion paper entitled “An Opportunity for Dialogue between Peoples: The Examination of New Political and Structural Relationships” is not clear. It appears that many First Nations did not receive an invitation to appear before the Committee. This is a double pity if it was the intention of the Committee to make its hearings into “an opportunity for dialogue between peoples.” Nor is it clear who the Peoples are who might enter into this dialogue. If the Semite Committee represents the Parliament of Canada (which may or may not represent the Canadian people) who is it who will represent the various First Nations, with their very diverse histories and cultures as well as their quite different legal relationships with the Canadian state? HOW DO YOU RENEW A PARTNERSHIP THAT NEVER WAS? The Introduction to the Discussion Paper speaks in contemporary bureaucratese of “renewing partnerships”. This is not so much a confusing statement as one that is insulting to the point of being odious. Since when did the First Nations have a partnership with Canada, i.e. a relationship in which there was sharing and mutual regard. Even the Senators of Aboriginal background would not want seriously to suggest that “partnership” is a word which springs to their minds in describing the relationship of their own Inuit or Metis community with Canada. And if there never has been a partnership how is it to be renewed? “Renewing partnerships” is a term the Committee borrows from the Government response to the RCAP Report, “Gathering Strength” which says that Canada want to make a commitment to “renewing partnerships with Aboriginal peoples and governments, strengthening governance, creating a flexible yet accountable fiscal framework ...” If Canada seriously wanted to strengthen its relationships with First Nations would it also attempt to strengthen the governance of those nations? Or, would it allow those nations to shape their own institutions without having a Canadian parliamentary committee attempt to determine the nature of accountability of Eeyou or Inuit or Nishnabe or Haida or Dene governments to their peoples? Unless, perhaps, it is the intention that these governments be accountable to the Parliament of Canada as a condition for its continued handouts? These words originated, of course, in the Government’s response to the RCAP Report. When the Senate Committee says that it can “support this process” it appears to lend more broad based support to the Government Response, including that of the Conservative caucus which, in 1997, represent close to half the membership in the Senate. WHAT CAN A SENATE COMMITTEE DO? The discussion paper has a section entitled “Powers of a Senate Committee.” Its basic power is to listen, to publish proceedings and to make recommendations. These articles will survey the proceedings it has published. Whether or not it has listened will partly be determined by whether its final report reflects the evidence it has heard. But it also depends upon whether it heard a broad cross section of the variety of Aboriginal peoples whose territories fall within present day Canada. A Senate Committee, like any other public inquiry can also thoroughly muddy the waters. A distinguished scholar wrote a paper at the outset of the work of the Royal Commission on Aboriginal Peoples asking what it might study which had not already been the subject of a public inquiry? After reviewing all the studies already done, Tom Jewiss concluded that the only legitimate subject remaining was the failure of the government to act upon the reports it had already received. A further study, very soon after RCAP, with far fewer hearings and far less expert evidence is hardly likely to produce much that is new in terms of ideas for addressing the seemingly intractable problems which are said to characterize this field. It will, however, mainly be usefull for testing the waters among parliamentarians. It might also have been useful for helping to frame a consensus of Canadians of good will but how often has testimony being given before this committee ever been mentioned in the mainstream media? On the other hand, when the Senate had a special committee on euthanasia and assisted suicide there was a studied policy of not reporting its proceedings even though the need to face death and to be of support to friends and family members are events shared by folks from all Canadian cultures. THE MEMBERSHIP OF THE SENATE COMMITTEE ON ABORIGINAL PEOPLES The following Senators were members of the Senate Committee on Aboriginal Peoples at the outset of the Committee’s work on Aboriginal Governance: (The archival web site from last session does not include a list of Committee members.) Chair: Charlie Watt Vice Chair: Janis Johnson Members: Willie Adams, a Liberal, and an Inuit from the NWT. Raynell Andreychuk, a Progressive Conservative woman Senator from Alberta with a long time commitment to Aboriginal issues. Jack Austin, a Liberal from British Columbia, a Minister of State for Social Development under Trudeau and an important player on the Joint Committee on the Constitution during the patriation debate. Gérald Beaudoin, the intellectual wing of the Conservative delegation on the Joint Committee on the Constitution during patriation and a serious scholar of the Canadian Constitution. Eric Bernston, formerly deputy premier of Saskatchewan, more recently convicted of corruption while holding that office. Thelma Chalifoux, a Liberal from Alberta. Aurélien Gill, a Montagnais and a Liberal from Québec Alasdair Graham, a Nova Scotian and the Government Leader in the Senate John Lynch-Staunton, a Québec Senator from Grandville and Oppositon Leader in the Senate Frank Mahovolich, former hockey player, a Liberal Senator from Ontario. Landon Pearson, a Liberal woman from Ontario who co-chaired the Joint Senate-Commons Committee on Child Custody and Divorce during the previous session. Ger. St.-German Conservative from Langley-Pemberton-Whistler in British Columbia, and a prairie Métis by ancestry. In addition, the Committee announced at the outset that it intended to convene an “Aboriginal Governance Round Table” which would consist of its own Chair and Deputy Chair plus “a seat for each of the Assembly of First Nations and the National Association of Friendship Centers ... the Inuit Tapirisat and Pauktuutit, ... the Métis National Council and Métis Women ... the Congress of Aboriginal Peoples and the Metis Settlement Council, [and] one seat each National Aboriginal Women’s Association and Clan Mothers ... one seat for Hereditary and Traditional Leaders.” Three is no indication that this Round Table was ever convened. In addition to the financial difficulties which the Committee may have encountered, particularly if the organizations it identified wanted honoraria as well as expenses, the Committee may also have been stumped by its own political correctness. The assumption that the Métis National Council did not speak for Métis women or that the Clan Mothers are separate from “Hereditary and Traditional Leaders” may have come as a less than complimentary surprise to the people to whom those terms might be thought to refer. “THE ENTIRE SPECTRUM OF THE SELF-GOVERNMENT PROCESS” In its discussion paper the Committee said that it “would like to hear the entire spectrum of the self-government process.” Something must have happened to cause it to lower its sights when it settled for 30 hearings with, perhaps, 40 witness groups. It did, however, specify four areas in which it conceived might be represented on this broad spectrum: * Fundamental principles; * Negotiation Issues and Processes * Implementation Issues and Processes * Structuring a New Relationship Sadly, for a Committee with insufficient resources, it makes no reference in its discussion paper to the work of the Penner Committee on Indian First Nations Self-Government which addressed these very points only 14 years earlier in 1983. The Committee announced at the outset that it was “seeking to work together with Aboriginal peoples and others to explore * principles and approaches for Aboriginal self-government; * implementing Aboriginal self-government; * strategies for financing and staffing Aboriginal governments and institutions. We will see as we review the testimony taken by the Committee just who the “others” were, what was said about financing and staffing, and how much attention was paid to what is actually taking place in First Nations and other Aboriginal communities today. WILL THE STUDY ON ABORIGINAL GOVERNANCE LIVE UP TO THE STANDARD OF PREVIOUS SENATE COMMITTEE STUDIES? Many people criticize the Senate without bothering to become acquainted with it. I have been following Senate Debates since 1960. During that time many major studies have been undertaken by Senate committees. The Croll Committee on Poverty, the Davey Committee on the Mass Media, Neiman Committee on Euthanasia and Assisted Suicide are only a few of the many committees in which dedicated and hard working Senators have, with the assistance of staff and consultants, produced ground breaking reports. The Aboriginal Peoples Committee brought new and important insight to a number of issues in its study of the First Nations Land Management Act in the last session. My concern is not so much about the legitimacy of the Senate as an institution but rather I am asking whether this committee, in its handling of this particular mandate, has been able to work to the standard set by the committees just mentioned and many others. Neither Croll’s Poverty Committee nor Davey’s Mass Media Committee were content to stop at 30 hearings? They really did advertise in newspapers across the country and send advance staff out to solicit presentations. Parliamentary committees from both the Senate and the Commons face challenges which do not come up for other kinds of public inquiries. Parliamentary rules prevent the committees from sitting between sessions. During sessions it is important for the more serious senators to put in an appearance in the Chamber, to follow legislation and to attend other committee hearings. In addition, many take constituency work quite seriously. From this point of view it is not unreasonable to expect that a Senate or a Commons committee might need longer to do a special study than was taken by a royal commission. It would certainly be no fault of the Committee if it could not do in one year the work done by RCAP in five years. What will reflect badly on the Committee is if it were to attempt to do such a major task while it lacked the resources, the energy, or dynamism evidenced by other public inquiries as well as by other Senate committees. TOMORROW: EVIDENCE HEARD BY THE FIRST SEVERAL SITTINGS OF THE COMMITTEE ON ABORIGINAL GOVERNANCE. -- Michael W. Posluns, The StillWaters Group, First Nations Relations & Public Policy. Please note new address: mposluns@accglobal.net Phone 416 656-8613 Fax 416 656-2715 36 Lauder Avenue, Toronto, Ontario, M6H 3E3. We offer Canadian parliamentary debates available by topics and bills.
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