Union of British Columbia Indian Chiefs Update (April 1989)

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OUR LAND IS OUR FUTURE
UNION OF BRITISH COLUMBIA INDIAN CHIEFS

200 - 73 Water Street, Vancouver, B.C. V6B 1A1
Telephone: (604) 684-0231

UPDATE

A p r i l 1989
MESSAGE FROM THE PRESIDENT:
For Indian Peoples, t h e recent r e - e l e c t i o n o f t h e C o n s e r v a t i v e
Party as t h e
government of Canada means t h e ongoing implementation o f t h e p o l i c i e s i t has
developed over t h e past f i v e y e a r s .
The stampede toward t h e t e r m i n a t i o n
cliff
continues.
In t h i s m a i l i n g , we can see how t h e DIA's c u r r e n t Lands, Revenues and T r u s t s
(LRT) Review i s another r a i l on t h e t r a c k l e a d i n g t o t h e e x t i n g u i s h m e n t of our
A b o r i g i n a l T i t l e and Treaty R i g h t s .
T h i s LRT Review was i n i t i a t e d because o f t h e Supreme Court r u l i n g i n t h e
"Guerin c a s e " (1984) on t h e f e d e r a l government's f i d u c i a r y t r u s t and because o f t h e
1986 A u d i t o r - G e n e r a l ' s Report on t h e inadequate ways t h a t t h e government has been
meeting i t s t r u s t o b l i g a t i o n s .
As a r e s u l t of these two e v e n t s , t h e f e d e r a l
government had t o review i t s LRT p o l i c i e s , procedures and s t a f f i n g .
The s t a t e d goal of t h e LRT Review i s l e g i s l a t i v e changes t h a t w i l l
"provide
the M i n i s t e r w i t h a s e t o f new d i s c r e t i o n a r y a u t h o r i t i e s " f o r t h e e x e r c i s e of h i s
trust responsibilities.
The LRT Review, when i t i s f i n i s h e d , w i l l r e s u l t i n a
l a r g e "package" of amendments t o t h e Indian Act, r a t h e r than piecemeal changes t o
the A c t , as represented by B i l l C-123 o r any o f t h e amendments proposed f o r S e c t i o n
73.
The LRT Review c h a l l e n g e s us w i t h t h e f o l l o w i n g q u e s t i o n s : Are we as Indian People prepared t o surrender on t h e i s s u e o f c o n s t i t u t i o n a l
r e c o g n i t i o n and accept an a d m i n i s t r a t i v e d e f i n i t i o n o f Indian
self-government?
Are we prepared t o accept t h e government's idea t h a t Indian
never e x i s t e d and, a c c o r d i n g t o t h e i r p l a n , s h a l l never e x i s t ?
Are Indian People l o o k i n g t o a d e - c o l o n i z i n g ( p o l i t i c a l )
d e v o l u t i o n ( a d m i n i s t r a t i v e ) s o l u t i o n ' t o t h e land q u e s t i o n
and t r e a t y e n t i t l e m e n t s ?

Governments

have

s o l u t i o n r a t h e r than a
i s s u e , self-government

It i s a f a c t t h a t i n t h e "Penner Report", p o l i c y and a d m i n i s t r a t i v e s o l u t i o n s
were touched upon.
But i f we a r e t a l k i n g about Indian self-government, then we
must t a l k about a c o n s i t u t i o n a l s o l u t i o n -- not Indian A c t amendments.
We must
not s u r r e n d e r our Indian Governments and have them become merely a branch of t h e
a d m i n i s t r a t i v e arm o f the Department o f Indian A f f a i r s .
In B r i t i s h Columbia, a f t e r many years o f r e s e a r c h and community p a r t i c i p a t i o n ;
we have adopted an A b o r i g i n a l T i t l e and Rights P o s i t i o n Paper ( r a t i f i e d i n 1979;
updated i n 1984).
N a t i o n a l l y , we have p r o c l a i m e d t h e D e c l a r a t i o n of F i r s t Nations
our Treaty and A b o r i g i n a l Rights P r i n c i p l e s .

and a l s o o u t l i n e d

The p o s i t i o n s have been d e c l a r e d and adopted as t h e b a s i s upon which we s h a l l
deal w i t h o t h e r governments.
WE MUST NOT DEVIATE FROM OUR STATED POSITIONS ON PAIN
OF EXTINGUISHMENT OF OUR INDIAN TITLE AND TERMINATION OF
INDIAN PEOPLES.
We must not be d i s t r a c t e d by government t e r m i n a t i o n s t r a t e g i e s l i k e the LRT
Review.
And we must not p a r t i c i p a t e i n such a c t i v i t i e s , f o r i t w i l l be taken by
the government as our Peoples' consent t o our own t e r m i n a t i o n !
We as
are.
Our
right.
paramount

Indigenous Peoples, must be recognized as t h e " d i s t i n c t s o c i e t i e s " t h a t we
F i r s t Nations must be accorded t h e c o n s i t u t i o n a l r e c o g n i t i o n t h a t i s t h e i r
A l l o f our energy and e f f o r t s should be d i r e c t e d toward a c h i e v i n g t h i s
p o l i t i c a l goal.

Yours t r u l y ,
UNION OF B.C. INDIAN CHIEFS
Chief Saul Terry, President

- 2 LEGAL UPDATE:

Fiduciary Obligation

An analysis regarding the Federal Government's fiduciary obligation
the Guerin case, and in light of existing International law.

in light of

International Law
Sacred Trust of Civilization:
As primary colonizer, Great Britain assumed obligations to the Indian

Nations which have become known as "the sacred trust of civilization". The concept has
its roots in much earlier times. Francisco de Vitoria, a Spanish cleric argued as early as
1532 that if the Spanish authorities assumed administration authority over the Indians it
should be "for the welfare and in the interests of the Indians and not merely for the profit
of the Spaniards." (De Indis Section 3)
The obligation of the colonizer to protect the property and status of the
Indians is one which was recognized by Britain.

It was expressed in the Royal

Proclamation, of 1763. In that document it is clearly spelled out that the lands belonging
to the Indian Nations remain reserved to them until through a process of formal
surrender, they are yielded up to the Crown.
In 1837, the Select Committee Report of the British House of Commons in
considering the measures to be adopted with regard to the Indian people of North
America in the forming of the BNA Act stated that Great Britain held a trust:
"particularly belonging and appropriate to the executive government
as administered either in this Country (Great Britain) or by the
Governors of their respective colonies. This is not a trust which
could conveniently be confided to the local legislatures."
The culmination of the development of the concept of the sacred trust of
civilization is found in the Advisory Opinion of the International Court of Justice on the
Legal Consequences for States of the Continued Presence of South Africa in Namiba
(South West Africa) Notwithstanding Security Council Resolution 276 (1970). (1971) I.C.J.
Rep. 1. The Court, after reviewing more recent treaties and resolutions of the General
Assembly of the United Nations, concluded:
"These developments leave little doubt that the ultimate objective of
the sacred trust was the self-determination and independence of the
peoples concerned."
Thus, the trust obligations were to promote self-determination of the Indian
Nations which required that aboriginal title be acquired by consent. These obligations
were assumed by the Imperial Crown and were passed to Canada upon Canada
achieving independence, at the latest in 1930 with the passage of the Statute of
Westminster.

The Guerin Case
In the Guerin case, the Court was asked to examine whether certain

fiduciary obligations Canada holds to the Indian Nations are legally enforceable in the
Courts.

The Court in Guerin examined the fiduciary obligation involved with the

surrendering of reserve land and held that the Federal Government became burdened
with legal fiduciary obligations to deal with that land in the Indians' best interest.
However, in deciding upon that narrow point, the Court canvassed the roots of the
fiduciary obligation:
.

. ./3

- 3 LEGAL UPDATE: (con't)

"The fiduciary relationship between the Crown and the Indians has its
roots in the concept of aboriginal native or Indian title...
...The Crown first took this responsibility upon itself in the Royal
Proclamation of 1763..."
Although the Guerin case involved reserved lands, the Court stated that the
discussion was equally applicable to lands which were not reserved land:
"It does not matter in my opinion that the present case is concerned
with the interest of an Indian Band and a Reserve rather than with
unrecognized aboriginal title and traditional tribal lands. The Indian
interest in the land is the same in both cases."
Finally, the Court affirmed that fiduciary obligations arise because the
Federal Government maintains a discretion to act on behalf of the Indians:
"We do agree however by statute agreement or perhaps unilateral
undertaking one party has an obligation to act for the benefit of
another, and that obligation carries with it a discretionary Dower, the
parties thus empowered becomes a fiduciary. Equity will then
supervise the relationship by holding him to the fiduciaries strict
standard of conduct...."
It is in the nature of this discretion that the sacred trust of civilization also
arises.
Conclusion
The Federal Government owes fiduciary obligations to protect the property
and sovereignty of the Indian Nations until the Indian Nations achieve self-determination.
This general and large fiduciary obligation gives rise to obligations to act according to a
high standard when the government has jurisdiction to act for the benefit of Indians and
Indian lands. In such transactions, the Federal Government may be held accountable in
Court for any wrongdoing.
The Canadian Courts have not decided yet the full extent to which all
aspects of the fiduciary obligations may be legally enforceable.
* **
THE MEANING OF TRUST:
Federal a u t h o r i t i e s have t w i s t e d and d i s t o r t e d the t r u e meaning of s o v e r e i g n t y and
a b o r i g i n a l t i t l e as d e f i n e d by the P r o c l a m a t i o n and T r e a t i e s .
They have done much
the
same
kind
of
surgery
on
the
meaning
of
trust.
Ottawa's i n t e r p r e t a t i o n of i t s t r u s t r e s p o n s i b i l i t y i s e s s e n t i a l l y r a c i s t .
This
a t t i t u d e has been b u i l t i n t o the "Indian A c t " and has shaped t h e ways the f e d e r a l
government deals w i t h Indian n a t i o n s t o t h i s day.
Federal a u t h o r i t i e s operate on the premise t h a t they have t o look a f t e r Indian
p r o p e r t y and money because Indians are not " f i t " t o do t h i s f o r themselves.
According
t o Ottawa's l i n e o f r e a s o n i n g , as soon as any group of Indians become " f i t " t o look
a f t e r t h e i r a s s e t s themselves, the Crown's t r u s t r e s p o n s i b i l i t i e s cease.
Becoming
" f i t " , by Ottawa's d e f i n i t i o n , means t h a t a group of Indians have accepted t e r m i n a t i o n
and a s s i m i l a t i o n i n t o s o - c a l l e d mainstream Canadian s o c i e t y .

. . ./4

- 4 -

THE MEANING OF TRUST:

(con't)

" F i t n e s s " of course does not come o v e r n i g h t , or by some magical wave of the wand,
as Ottawa sees i t . The f e d e r a l government determines what f i t n e s s i s and a l l o w s f o r
a process of graduating Indians from t o t a l departmental
c o n t r o l , t o a system of
c o n t r i b u t i o n agreements, and then t o a l t e r n a t i v e funding arrangements.
The f i n a l
stage i s f u l l graduation by means o f s p e c i f i c l e g i s l a t i o n t h a t e s t a b l i s h e s Indian
communities as m u n i c i p a l i t i e s under p r o v i n c i a l j u r i s d i c t i o n .
This f i n a l step i s
accomplished not only by s p e c i f i c l e g i s l a t i o n as the end r e s u l t of g r a d u a t i o n t o
Ottawa's d e f i n i t i o n of " f i t n e s s " but a l s o by means of comprehensive c l a i m s s e t t l e m e n t s .
As r e c e n t l y as the J u l y 1988 e d i t i o n of Ottawa's newest j o u r n a l , something c a l l e d
" T r a n s i t i o n " , the concept of f i t n e s s i s s p e l l e d out c l e a r l y .
In e x p l a i n i n g
its
l a t e s t triumphs of c r e a t i n g " f i t " Indians t h e p u b l i c a t i o n t a k e s care t o p o i n t out t h a t :
" I n d i v i d u a l communities w i s h i n g t o n e g o t i a t e a l t e r n a t i v e funding arrangements w i t h t h e
Department must be able t o demonstrate a c a p a b i l i t y t o manage funds and programs, and
to agree t o meet minimum program s t a n d a r d s . "
C l e a r l y , what t h i s means i s t h a t Indians have t o meet Ottawa's c r i t e r i a of f i t n e s s
in o r d e r t o be t r u s t e d with a l t e r n a t i v e f u n d i n g arrangements.
When such Indians go
the f i n a l step over the B u f f a l o Jump, the t r u s t r e l a t i o n s h i p disappears according t o
the f e d e r a l government's i n t e r p r e t a t i o n of t r u s t .
There i s a t r u s t r e l a t i o n s h i p i n law between the f e d e r a l crown and Indian
but i t i s something very d i f f e r e n t then t h e way f e d e r a l a u t h o r i t i e s see i t .

Nations,

T r u s t i s a f u n c t i o n of the Proclamation and T r e a t i e s .
The Courts of Canada have
d e f i n e d t h i s kind of r e l a t i o n s h i p as an Agency T r u s t .
An agency t r u s t i s an unders t a n d i n g between an agent ( i . e . the parliament of Canada) and t h e P r i n c i p l e ( i . e .
Indian N a t i o n s ) t h a t the former w i l l r e s p e c t the p o l i t i c a l and t e r r i t o r i a l r i g h t s of
the l a t t e r , and i f necessary, ensure t h a t as the s t r o n g e r p a r t y , the Crown w i l l
i n t e r v e n e w i t h t h i r d p a r t i e s t o p r o t e c t the i n t e r e s t s of Indian Nations.
An agency t r u s t cannot be unloaded, t r a n s f e r r e d or terminated as long as t h e r e i s
any substance to the s p i r i t and i n t e n t of t h e Proclamation and T r e a t i e s .
Within an
agency t r u s t r e l a t i o n s h i p i t i s Indian Nations who consent t o d e l e g a t e c e r t a i n r e s ponsibilities
to
Canada
and
not
the
other
way
around.
There are c e r t a i n
should be noted.

other

implications

i n an

Agency

trust

relationship

that

Because Parliament
as an "Agent" cannot a c t u a l l y
administer
i t s delegated
r e s p o n s i b i l i t i e s on behalf of Indian N a t i o n s , a s p e c i a l department has t o be
e s t a b l i s h e d f o r t h i s purpose.
This i s t h e Department of Indian A f f a i r s , known i n law
as t h e "Prime Agent".
This i s t h e reason t h a t i n e a r l i e r days, departmental
staff
were known as "Indian agents".
They were supposed t o be a c t i n g as i n t e r v e n o r s and
facilitators
with t h i r d p a r t i e s t o ensure t h a t Indian i n t e r e s t s and r i g h t s were
properly protected.
We know of course i n r e t r o s p e c t t h a t many Indian Agents d i d not
know how t o do t h e i r j o b .
tor

As t h e "Prime Agent", t h e Department i s supposed t o be accountable t o Parliament
i t s role, because i t i s the P a r l i a m e n t of Canada t h a t i s the a c t u a l "Agent".

P a r l i a m e n t c l e a r l y i s not p r o p e r l y f u l f i l l i n g i t s l e g a l r o l e as "Agent" and i s
l e g a l l y v u l n e r a b l e f o r i t s shortcomings.
There are more than one hundred and f i f t y
c o u r t cases at present t h a t have been launched by Indian Nations, some of which may
have t h e e f f e c t of g e t t i n g Canada back on t h e r i g h t t r a c k .
One problem of course i s
t h a t Canadian c o u r t s a l s o may l o s e s i g h t of the i n t e n t of t h e Proclamation and
T r e a t i e s i n e s t a b l i s h i n g an Agency t r u s t .
Whatever r o l e t h e c o u r t s u l t i m a t e l y p l a y i n determining the c u r r e n t a p p l i c a t i o n of
an Agency T r u s t , i t i s c l e a r l y e s t a b l i s h e d law t h a t P a r l i a m e n t , as Agent, cannot a l t e r
i n any way the l e g a l r e l a t i o n s h i p of Indian Nations w i t h the o u t s i d e world without
t h e i r consent.
.

./5

- 5 THE

MEANING OF TRUST: ( c o n ' t )

It i s e v i d e n t t h a t the present government i s b r e a k i n g i t s own laws.
No Indian
Nation consented t o the implementation
of a t e r m i n a t i o n p o l i c y which does a l t e r the
l e g a l r e l a t i o n s h i p of Indians with t h e o u t s i d e w o r l d .
Those who s i g n comprehensive
c l a i m s agreements, such as the one r e c e n t l y concluded i n the Northwest T e r r i t o r i e s ,
o r agree t o s p e c i f i c l e g i s l a t i o n e s t a b l i s h i n g them as p r o v i n c i a l type m u n i c i p a l i t i e s ,
do p r o v i d e a form of consent.
However, i t i s d o u b t f u l even i n these i s o l a t e d cases
whether a l l the people e f f e c t e d f u l l y understood t h a t they were t r a d i n g o f f fundamental
r i g h t s f o r beads and t r i n k e t s .
As the " P r i n c i p l e " i n an Agency T r u s t r e l a t i o n s h i p , Indian Nations have a duty to
keep P a r l i a m e n t and i t s a d m i n i s t r a t i v e arm, the Department of Indian A f f a i r s , p r o p e r l y
f u l f i l l i n g t h e i r r o l e s as "Agent".
When Indian Nations f a i l t o c h a l l e n g e the
u n i l a t e r a l a c t i o n s of Parliament or t h e department - a c t i o n s which impact on the l e g a l
s t a n d i n g of Indians - the c o u r t s are l i k e l y t o i n t e r p r e t such Indian s i l e n c e as
i m p l i e d consent.
For example, the Department r e c e n t l y underwent a major r e o r g a n i z a t i o n , not t o
i n c r e a s e i t s e f f e c t i v e n e s s as a "Prime Agent", but to gear i t s e l f t o the implementation
of a t e r m i n a t i o n p o l i c y .
I t would have been proper f o r Indian Nations t o f o r c e f u l l y
c h a l l e n g e t h e purpose and aims of Departmental r e o r g a n i z a t i o n at the time t h i s
was
being done.
This i s because under an Agency T r u s t , the department has no a u t h o r i t y
to s i g n i f i c a n t l y change i t s f u n c t i o n s and purpose without t h e consent of
Indian
Nations.
Twenty years ago, Indians understood t h e i r r e s p o n s i b i l i t i e s as " P r i n c i p l e " i n an
Agency T r u s t r e l a t i o n s h i p .
At t h a t time the Department r e o r g a n i z e d
i t s e l f to
implement P i e r r e Trudeau's "White Paper", an e a r l i e r v e r s i o n of a t e r m i n a t i o n p o l i c y .
Indian Nations acted i n unison not o n l y t o cancel the p o l i c y but a l s o to get the
department t o suspend i t s e f f o r t s t o r e o r g a n i z e .
The present government appears t o have gotten away not o n l y w i t h implementing a
new t e r m i n a t i o n p o l i c y but a l s o w i t h a major departmental r e o r g a n i z a t i o n .
This t i m e ,
there
were
no
serious
objections
from
Indian
Nations.
Have we f o r g o t t e n how t o f i g h t back?
An even more s e r i o u s i m p l i c a t i o n of the growing e r o s i o n of an Agency Trust
is
the
government's b l a t a n t d o w n s i z i n g
of the
Department of
Indian
Affairs.
P a r l i a m e n t ' s r e s p o n s i b i l i t i e s under the P r o c l a m a t i o n and T r e a t i e s t o a d m i n i s t e r an
agency t r u s t cannot be c a r r i e d out u n l e s s a "Prime Agent" e x i s t s f o r t h i s purpose.
Once t h i s r e s p o n s i b i l i t y gets d i l u t e d and spread around to a l o t of other f e d e r a l
and p r o v i n c i a l departments, an agency t r u s t no longer e x i s t s .
This i s i n f a c t what
i s t a k i n g p l a c e now.
Indian people should be c h a l l e n g i n g the purpose and aims of s t a f f r e d u c t i o n s i n
the Department of Indian A f f a i r s .
We should keep the Department on t h e hook, as the
Crown's "Prime Agent" f o r adequate f u n d i n g and f o r e v e n t u a l l y i n s t i t u t i n g a system
of r e p a t r i a t i o n payments f o r past damages.
There can be no downsizing or d i s m a n t l i n g of the Department w h i l e an Agency Trust
c o n t i n u e s t o e x i s t i n i t s present form.
N e i t h e r should we
agree t o become
i n c o r p o r a t e d i n t o Canada's r o l e as "Agent" by having our l o c a l governments and t r i b a l
c o u n c i l s a c t as sub-agents f o r the government.
To p r o t e c t t h e i n t e g r i t y of the
"Agency T r u s t " , and t o launch a d i r e c t a t t a c k on Ottawa's concept o f " f i t n e s s " , we
should i n s i s t t h a t the Department of Indian A f f a i r s take f u l l
responsibility for
program d e l i v e r y .
This would put the c a t among the pigeons because the government
would be f o r c e d t o r e d i s c o v e r i t s p r o p e r r o l e as Agent.
An Agency Trust as d e f i n e d by the P r o c l a m a t i o n and T r e a t i e s i s the pact t h i s i s
supposed t o p r o t e c t our s o v e r e i g n t y and our a b o r i g i n a l t i t l e .
I t i s a pact between
Canada and our n a t i o n s .
This k i n d of t r u s t cannot be r e d e f i n e d or made to disappear
by e l i m i n a t i n g the f e d e r a l o r g a n i z a t i o n t h a t i s supposed t o f u l f i l l Canada's o b l i g a t i o n s as Agent.
Such a t r u s t r e l a t i o n s h i p can only be t r a n s l a t e d i n t h e end i n t o cons t i t u t i o n a l terms i n a way which accommodates our s o v e r e i g n t y and our a b o r i g i n a l t i t l e
w i t h i n Canada's f e d e r a l system.
And t h i s can only be done w i t h our
consent.

* * *

. .

- 6 UNION OF B . C .

LANDS,

INDIAN

R E V E N U E S & TRUSTS

SUMMARY

THEDIAND—
A.

LRT

REVIEW:

AND A N A L Y S I S

D I A N D AND A . F . N .

CHIEFS

ACTIVITIES

REVIEW.

Background.

The
e x t e n s i v e D I A N D LRT
Review that is
now u n d e r w a y o r i g i n a t e d
f r o m two s o u r c e s : t h e d e c i s i o n o f
t h e Supreme C o u r t o f C a n a d a
in
the
Guerin
case
(1984);
and
the
1986 r e p o r t o f t h e A u d i t o r General
on t h e l e g a l r e s p o n s i b i l i t i e s o f t h e D e p a r t m e n t f o r l a n d
and e s t a t e
management
and b a n d
fund a d m i n i s t r a t i o n in
l i g h t of
the
Guerin
d e c i s i o n . The
Auditor-General
found t h a t the D e p a r t ment
needed to r e v i e w
and r e v i s e i t s
LRT p o l i c i e s ,
proceedures
and
staffing
in
light
of
the
Supreme
C o u r t ' s r u l i n g on t h e
government's f i d u c i a r y t r u s t .
T h eDIAND—
LRT
R e v i e w began l a t e
in 1986. ( I t
was o r i g i n a l l y i n
t h e hands of
the O f f i c e of
t h e C o m p t r o l l e r - G e n e r a l , but
i s now
being
done
in-house
by
DIAND.)
The
folowing areas are being
r e v i e w e d by t h e D e p a r t m e n t :
Land management;
Land r e g i s t r y ;
Indian monies;
Indian
estates;
Individual trust
accounts;
By-laws (including registration);
E l e c t i o n s and a p p e a l s ;
M e m b e r s h i p ; and
L i t i g a t i o n (including test-case funding).
T h eDIAND—

Work

LRT

Review

Phase

III

t h eDIAND—

into

three

phases:

" s c o p e o u t " i s s u e s and d e v e l o p
w o r k p l a n (now c o m p l e t e ) ;

LRT

organized

detailed

i d e n t i f y key i s s u e s ; complete w o r k p l a n s ;
develop
options
for
reform through
"factfinding, analysis
and c o n s u l t a t i o n "
( t o be
c o m p l e t e d by e a r l y 1 9 8 9 ) ;
implementation
Review

(late

1989-90).

'on-target.'

The s t a t e d p o l i c y - d e v e I o p m e n t
g o a l f o r t h eDIAND—
LRT
Review,
is
to " a c h i e v e maximum p r o g r e s s i n the s h o r t e s t t i m e f r a m e
possible.
...[DIAND]
w i l l have
a full
set of
o p t i o n s on
a range of key
areas
for
the
Minister-of-the-day
to
c o n s i d e r and s u f f i c i e n t
homework c o m p l e t e d t o . . . move c h a n g e s t h r o u g h t h e s y s t e m o v e r t h e
f i r s t 6 months of 1 9 8 9 . "
R e g a r d i n g l e g i s l a t i v e changes, the
s t a t e d g o a l of the LRT R e v i e w
is
"to
provide
the
Minister
with
a s e t o f new d i s c r e t i o n a r y
a u t h o r i t i e s " for the
e x e r c i s e of h i s t r u s t
r e s p o n s i b i l i t i e s for
I n d i a n l a n d s , r e v e n u e s , t r u s t s and e s t a t e s .
A f t e r t h eDIAND—
LRT
Review began, B i l l
C - 1 2 3 was p a s s e d
by t h e
H o u s e o f Commons and was i n t h e S e n a t e at t h e t i m e P a r l i a m e n t was
d i s s o l v e d f o r the e l e c t i o n .
( B i l l C-123 r a i s e s s u r v i v i n g spouses
p r e f e r e n t i a l s h a r e o f e s t a t e s and amends S e c t i o n 52 o f t h e I n d i a n
A c t to s a f e g u a r d the M i n i s t e r ' s l i a b i l i t y i n d i s t r i b u t i n g m i n o r s '
trust
funds.)
In
a d d i t i o n , t h e M i n i s t e r has
p r o p o s e d amendments t o S e c t i o n 73
of the I n d i a n A c t
t o e s t a b l i s h and m a i n t a i n a l a n d r e g i s t r y s y s tem f o r r i g h t s a n d i n t e r e s t s i n r e s e r v e
and s u r r e n d e r e d l a n d s ( a
r e s p o n s e to the " K a m l o o p s
amendment").
.

. .11

- 7 "
Once
the
LRT
Review
is
c o m p l e t e d , t h i s p i e c e m e a l a p p r o a c h to
a m e n d i n g t h e I n d i a n A c t w i l l be r e p l a c e d by a " p a c k a g e " o f a m e n d m e n t s . The
e x t e n s i v e n a t u r e of the LRT R e v i e w s u g g e s t s that
such
an amendment " p a c k a g e " w o u l d amount to
w h o l e s a l e r e v i s i o n of
the
Act .
B.

Analysis.
1 ) Self-government

and C o n s t i t u t i o n a l

issues.

T h eDIAND—
LRT
Review
is
an
i n t e g r a l p a r t of t h e
Department's
strategy
for implementing l e g i s l a t e d ' m u n i c i p a l '
self-government
and d e v o l u t i o n
of a d m i n i s t r a t i v e a u t h o r i t y to
Indian Bands. A l l
LRT
initiatives
are
explicitly
intended
to
support
DIAND's
s e l f - g o v e r n m e n t p r o g r a m (LRT R e v i e w , " G u i d i n g P r i n c i p l e s " ) .
With
the
tion
and
change.

LRT R e v i e w , the g o v e r n m e n t c o n t i n u e s to d i s t r a c t
attenenergy
from
First
N a t i o n s ' agenda of c o n s t i t u t i o n a l

T h r o u g h t h e L R T R e v i e w , t h e D e p a r t m e n t i s c h a r t i n g an a l t e r n a t i v e
'back-door'
l e g i s l a t i v e route
f o r i t s community
self-government
initiative
an
alternative
to
'front-door'
self-government
legislation like
the S e c h e l t A c t .
What F i r s t N a t i o n s '
a r e not
p r e p a r e d t o a c c e p t w i t h t h e S e c h e l t A c t , t h e y may be
p r e p a r e d to
accept
as
part
of
a
"package"
of I n d i a n A c t amendments
that
a p p e a r t o i n c r e a s e I n d i a n c o n t r o l o v e r I n d i a n l a n d s and r e v e n u e s .
The
k i n d of l e g i s l a t i v e c h a n g e s
that DIAND a n t i c i p a t e s
from the
LRT Review
w i l l " l e g a l i z e an i m p r o v e d
s t a t u s - q u o , " a c c o r d i n g to
Pam
K e a t i n g , one
of t h e
Department o f f i c e r s
in charge
of the
r e v i e w . T h e o n l y way t o make s e n s e o f t h i s s t a t e m e n t
(made a t t h e
R e s e a r c h D i r e c t o r s workshop in Ottawa l a s t December)
is to see i t
as a
p a r t of
the g o v e r n m e n t ' s
e m p h a s i s on
"practical
arrangements"
(as
opposed
to
" i m p r a c t i c a l " c o n s t i t u t i o n a l change) in
selling
its
community
self-government
program.
"Legalize
the
s t a t u s quo"
means amend t h e
I n d i a n A c t to
d e f i n e the f i d u c i a r y
r e s p o n s i b i l i t i e s of the M i n i s t e r
more p r e c i s e l y , w h i l e e x p a n d i n g
the
ability
of
the
Minister
to
transfer
r e s p o n s i b i l i t y and
a c c o u n t a b i l i t y to I n d i a n B a n d s
(devolution).
T h eDIAND—
LRT
Review is
a
constitutional
issue
i n t h e same way
that
the
Department's
overall
scheme f o r l e g i s l a t e d c o m m u n i t y
self-government
is, u l t i m a t e l y , a constitutional issue. Without a
constitutional
amendment
defining
First
Nations'
rights
and
entitlements,
the
LRT
Review
will
result
in
new l e g i s l a t e d
d e f i n i t i o n s and ( o p t i o n a l ) a u t h o r i t i e s f o r I n d i a n g o v e r n m e n t s and
the
M i n i s t e r . In s h o r t ,
an I n d i a n A c t
amendment " p a c k a g e "
will
d i s p l a c e C o n s t i t u t i o n a l a m e n d m e n t s as t h e l e g a l b a s i s f o r " I n d i a n
self-government"
in Canada.
2)

Fiduciary

trust

obligations.

The
LRT
Review
is
the
government's
response
to
the
Guerin
d e c i s i o n . A s s u c h , i t i s e x p l i c i t l y d i r e c t e d t o w a r d : a) d e f i n i n g /
c l a r i f y i n g the M i n i s t e r ' s f i d u c i a r y o b l i g a t i o n s ,
responsibilities
and l e g a l l i a b i l i t i e s ;
and
b) r e f o r m i n g L R T p o l i c i e s ,
practices
and s t a f f i n g to r e f l e c t p o s t - G u e r i n l e g a l
realities.
The g r e a t e s t danger that F i r s t
N a t i o n s see i n the LRT
Review is
t h a t i t w i l l r e s u l t i n a r e d u c t i o n of
the M i n i s t e r ' s t r u s t
obligations
to
Indian p e o p l e .
This fear
is w e l l - k n o w
t o D I A N D and
senior o f f i c i a l s repeatedly
a s s u r e us t h a t t h i s
w i l l not o c c u r .
DIAND
emphasizes
that
changes,
including l e g i s l a t i v e changes,
" w i l l be p r i m a r i l y o p t i o n a l i n
n a t u r e , " w i t h Bands f r e e to chose
w h e t h e r they w i s h to opt f o r d e v o l u t i o n or n o t .
R e g a r d l e s s of
the D e p a r t m e n t ' s
N a t i o n s are w e l l - g r o u n d e d .

assurances,

the

fears

First

O n e o f t h e g o a l s o f t h eDIAND—
LRT
R e v i e w i s to e n c o u r a g e
greater
u s e of S e c t i o n s 53-60 of the I n d i a n A c t . These s e c t i o n s a l l o w the
M i n i s t e r t o d e l e g a t e c e r t a i n a u t h o r i t i e s t o F i r s t N a t i o n s . Use o f
these
sections
under
a
"revised"
Indian
Act
would give
the
appearance
that the M i n i s t e r ' s
fiduciary trust r e s p o n s i b i l i t i e s
. . . /8

8 -

»ere
being
discharged
with
devolution,
while
i m p o r t a n c e of a c o n t i n u i n g " r e s i d u a l t r u s t . "

minimizing

the

As a
r e s u l t of G u e r i n , the e x t e n t
of the g o v e r n m e n t ' s
fiduciary
t r u s t o b l i g a t i o n s i s now
d e f i n e d by t h e g e n e r a l l e g a l p r i n c i p l e s
governing
the
administration
of
trusts
and e s t a t e s .
In o t h e r
w o r d s , t h e g o v e r n m e n t ' s t r u s t o b l i g a t i o n s a r e now q u i t e b r o a d , as
a r e the l e g a l l i a b i l i t i e s that stem from b r e a c h e s of t h i s t r u s t .
In t h i s
c o n t e x t of broad f i d u c i a r y
responsibility,
by
t h e M i n i s t e r to
" c l a r i f y " or " d e f i n e "
his trust
through l e g i s l a t i o n
a r e b o u n d to
n a r r o w the terms
and
reduce
the
Minister's
legal
liability.
As
o b l i g a t i o n s toward Indian people are c o n c e r n e d ,
the
c a n n o t be " i m p r o v e d . "

any a t t e m p t s
obligations
of t h e t r u s t
f a r as t r u s t
"status quo"

Indeed,
t h eDIAND—
LRT
R e v i e w w i l l g i v e the
government a c o m p l e t e
i n v e n t o r y of
its statutory
o b l i g a t i o n s , along
w i t h recommended
procedures for p r o p e r l y d i s c h a r g i n g i t s r e s p o n s i b i l i t i e s . This
is
a
clear
attempt
to
limit
potential
a c t i o n s by F i r s t N a t i o n s
against
the government f o r breaches of the f i d u c i a r y t r u s t .
II.

THE A . F . N . - L R T REVIEW.
A.

Background.

At
the AFN G e n e r a l Assembly in
J u n e , 1 9 8 8 , R e s o l u t i o n 17/88 d i r e c t e d A F N : to seek f u n d i n g f o r a F i r s t N a t i o n s ' r e v i e w of L R T ; to
m o n i t o r t h eDIAND—
LRT
R e v i e w and
t h eAFN—
LRT
review;
to r e p o r t
i n f o r m a t i o n on b o t h
r e v i e w s to F i r s t
N a t i o n s in Canada;
and t o
involve First
Nations in
all levels
of d e c i s i o n - m a k i n g
on t h e
AFN-LRT review.
T h e A F N s i g n e d a $ 1 9 3 , 2 0 0 . 0 0 c o n t r i b u t i o n a g r e e m e n t w i t h D I A N D on
S e p t e m b e r 2 9 , 1988 " f o r
t h e s o l e and e x p r e s s p u r p o s e of i n s u r i n g
t h a t LRT i s s u e s a r e c o v e r e d from a F i r s t N a t i o n s ' p e r s p e c t i v e a n d
that F i r s t
N a t i o n s are
f u l l y aware
of the
i m p l i c a t i o n s of any
recommendations for
c h a n g e . " The a g r e e m e n t
also stipulates
that
t h e w o r k d o n e by t h e A F N " w i l l n o t d u p l i c a t e t h e w o r k done by t h e
D e p a r t m e n t but w i l l enhance the work i n a r e a s w h i c h F i r s t N a t i o n s
feel require
more i n - d e p t h a n a l y s i s . " The
a g r e e m e n t may be t e r m i n a t e d by t h e
M i n i s t e r i f the A F N i s n o t
" d u l y mandated by i t s
members to r e p r e s e n t t h e i r
i n t e r e s t s r e l a t e d to t h e
[DIAND] L R T
Review."

Late
view

i n 1988, the
AFN o r g a n i z e d
has t h r e e p h a s e s :
Phase

I -

Phase

III

its

LRT R e v i e w .

T h eAFN—

LRT

Re-

d e v e l o p an LRT i n f o r m a t i o n b a s e and i d e n t i f y
d e f i c i e n c i e s i n t h e D I A N D r e v i e w (6 m o n t h s ) ;
- consultation
-

with

implementation
recommendations

First

o fAFN—
.

Nations;

LRT

Review

A 13-memberAFN— LRT C h i e f s
C o m m i t t e e has been e s t a b l i s h e d
(with
Gord
Peters
and
Joe
Mathias
as
co-chairs).
Regional
repres e n t a t i o n on
t h e c o m m i t t e e i s i n c o m p l e t e at t h i s t i m e . ( M r . H u g h
B r a k e r , the N u u - C h a h - N u I t h
T r i b a l C o u n c i l ' s lawyer, is
the B . C .
regional
rep.)
Terms
of
reference
h a v e been d r a f t e d f o r
this
c o m m i t t e e , as w e l l as a
' m i s s i o n s t a t e m e n t ' for the r e v i e w
as a
whole.
AFN —
LRT
Review Committee s t a f f
have been
S h a w a n a ( c o o r d i n a t o r ) and J o e S a n d e r s ( l e g a l

hired, including
advisor).

Brian

A
set of " o p t i o n s
for AFN p a r t i c i p a t i o n
i n D I A N D ' s LRT r e v i e w "
h a s b e e n p r e p a r e d f o r d i s c u s s i o n by t h e L R T C h i e f s C o m m i t t e e .

. . ./ 9

Ana l y s i s .

The
main
cipation
Review.

issue
involved
in
of
First
Nations,

t h eAFN—
through

LRT R e v i e w i s t h e
t h e A F N , i n t h eDIAND—

partiLRT

T h e terms of the
c o n t r i b u t i o n agreement r e s t r i c t the
AFN Review
( n o n - d u p I i c a t i o n of DIAND w o r k ; enhancement of DIAND c o n s u l t a n t ' s
r e p o r t s ; e t c . ) and e x p l i c i t l y t i e i t i n t o t h e D I A N D R e v i e w . A s i d e
from
organizing
consultation
meetings
with
First Nations,
it
appears
that
AFN's
LRT
activities
will
mainly
consist
of
reviewing
and
responding
to
the
DIAND
c o n s u l t a n t s ' Phase
II
reports.
W i t h o n l y s i x m o n t h s to
d e v e l o p a d a t a b a s e and r e v i e w
t h e DIAND c o n s u l t a n t s '
r e p o r t s Phase I of
the AFN R e v i e w ) ,
First
N a t i o n s w i l l be f o r c e d t o r e a c t t o D I A N D i n i t i a t i v e s . In r e a l i t y ,
there
w i l l be
l i t t l e opportunity
for F i r s t
N a t i o n s to d e v e l o p
t h e i r own s e t o f o p t i o n s .
E x p e r i e n c e shows t h a t t h e r e
a r e no l o n g - t e r m p o l i t i c a l
benefits
gained
by
First
Nations
from
participation
i n DIAND p o l i c y development processes over
which they have
no r e a l c o n t r o l .
In
such
cases
-and
the
LRT R e v i e w
is
no e x c e p t i o n , a l l
the
p o l i t i c a l benefits
a c c r u e to
the D e p a r t m e n t .
R e g a r d l e s s of the
n a t u r e of t h e i r
input, F i r s t Nations'
participation
legitimizes
DIAND
po1icy-deve1opment
processes
and
any
legislative
or
administrative
changes
that
result.
This
is
an
important
political
benefit
to
the
Department.
That
is
why
DIAND i s
p u r s u i n g i t s own L R T c o n s u l t a t i o n s w i t h F i r s t N a t i o n s i n a d d i t i o n
t o t h o s e t h a t may be c o n d u c t e d by t h e A F N .
The
problems
inherent
in
t h eAFN—
LRT
Review
s h o w up i n i t s
"Guiding
P r i n c i p l e s " and
"Mission Statement."
A c c o r d i n g to the
"Guiding
Principles,"
the
work
and
positions
a d o p t e d by the
AFN —
LRT
Review
must
be
"consistent
with
the
constitutional
strategy
of
self-determination."
The
LRT
review process is a
l e g i s l a t i v e and a d m i n i s t r a t i v e
i n i t i a t i v e . It i s
an
alternative
to
c o n s t i t u t i o n a l change.
In
t h i s l i g h t , how
c a n any a s p e c t
of
t h eAFN—
LRT
Review
support
First
N a t i o n s ' agenda for c o n s t i tutional
recognition?
In f a c t ,
a f t e r the f a i l u r e
of the l a s t
FMC, i t i s
f a i r t o ask
whether
First Nations
r e a l l y have
a constitutional
strategy
at
all.
The g o a l o f
c o n s t i t u t i o n a l r e c o g n i t i o n may
s t i l l be p a r a mount
but
how
to
achieve
it
is
an o p e n q u e s t i o n .
Precisely
b e c a u s e there is a post-FMC c o n s t i t u t i o n a l s t r a t e g y vacuum,
First
N a t i o n s ' p a r t i c i p a t i o n i n h i g h - p r o f i l e DIAND i n i t i a t i v e s ( t h e LRT
Review,
AFAs,
community
self-government
negotiations)
is very
d a n g e r o u s . These DIAND
i n i t i a t i v e s are a l l
p a r t of a
different
k i n d of s t r a t e g y :
t h e g o v e r n m e n t ' s " B u f f a l o Jump" s t r a t e g y ,
whose
aim
is
to
sidetrack
First
Nations'
constitutional
agenda
permanently.
The
the

issues
dangers

o u t l i n e d in the A F N ' s LRT " M i s s i o n S t a t e m e n t "
of p a r t i c i p a t i o n i n the R e v i e w :

confirm

- - the g o v e r n m e n t ' s
t i m e c o n s t r a i n t s and the l a r g e
scope
o f t h eDIAND—
LRT
Review pose a major
p r o b l e m f o r the AFN R e v i e w
r i g h t at the o u t s e t ;
--

many

First

Nations

not

want

changes

the

Indian

Act;
Nations'

- - c u r r e n t management
of
s e l f - d e t e r m i n a t i o n ; and

LRT

not

supportive

First

- - the c o n f l i c t
(as d e f i n e d by D I A N D ? ) f o r F i r s t N a t i o n s
who want
more c o n t r o l
without lessening
the g o v e r n m e n t ' s
trust
responsibilities.

. . . /10

10 -

The
AFN d i s c u s s i o n
p a p e r on
"Options for
D I A N D ' s LRT
R e v i e w " adds
more f u e l
to the
o p t i o n s o u t l i n e d i n the paper i n c l u d e :
- - AFN m o n i t o r i n g
senior Department officials;

the D I A N D - L R T

AFN P a r t i c i p a t i o n i n
d a n g e r o u s f i r e . The

Review

and m e e t i n g

with

-- AFN particpation on the various DIAND-LRT Review
Committees;
issues
First

and

a d d i t i o n a l funding
for a
n a t i o n a l workshop
on
the d i s t r i b u t i o n of i n f o r m a t i o n to F i r s t N a t i o n s ;

Nations

additional
to c o n d u c t

funding
for
PTOs,
Tribal Councils
t h e i r own r e s e a r c h and c o n s u l t a t i o n ;

LRT
and

a j o i n t w o r k i n g agreement
b e t w e e n A F N and D I A N D " t o
p l a n , g a t h e r d a t a , a n a l y s e LRT i m p a c t on F i r s t
Nations, priorize
options
for
solutions
and
seek
F i r s t N a t i o n s ' s u p p o r t of
the
r e c o m m e n d a t i o n s and o p t i o n s p r o v i d e d by D I A N D , "
T h e ' p r o s and c o n s ' o u t l i n e d i n t h e p a p e r
cern:
the " a p p e a r a n c e " that AFN i s i n a
a l l F i r s t N a t i o n s ; that
it
is a g r e e a b l e
and
fast-tracking
('cons');
and
that
a s s i s t DIAND's
Review ( ' p r o ' ) , although
o v e r t h e t i m i n g and q u a l i t y o f t h e w o r k "

for these o p t i o n s c o n consultation process
for
t o DIAND r e c o m m e n d a t i o n s
a d d i t i o n a l funding would
AFN
"would lose c o n t r o l
('con').

Furthermore, if
A F N w e r e o n l y to m o n i t o r
and n o t p a r t i c i p a t e i n
t h e DIAND-LRT R e v i e w , " t h i s d e c i s i o n c o u l d c a u s e DIAND
t o be r e l u c t a n t t o f u r t h e r f u n d any A F N —LRTR e v i e w a c t i v i t i e s " - a very
big 'con'!
[Note: Resolution
17/88 o n l y d i r e c t s
AFN to m o n i t o r
the DIAND-LRT R e v i e w . ]
This
discussion
paper,
along
w i t h the c o n t r i b u t i o n agreement,
c l e a r l y show t h e d e g r e e
to w h i c h t h e A F N has
already
acquiesced
t o D I A N D ' s demand f o r F i r s t N a t i o n p a r t i c i p a t i o n a n d c o n s u l t a t i o n
in
exchange
for
LRT
funding.
Of
c o u r s e , AFN a c q u i e s c e n c e is
a s s u r e d by c l a u s e
8 of t h e c o n t r i b u t i o n
agreement, which a l l o w s
D I A N D t o c u t A F N ' s LRT f u n d i n g
i f i t is found that AFN
does not
h a v e a m a n d a t e f r o m F i r s t N a t i o n s t o p a r t i c i p a t e i n t h eDIAND—
LRT
R e v i e w . The
" c a r r o t and s t i c k "
s t r a t e g y c o n t i n u e s to
serve
the
government
well!
C l e a r l y , A F N has
a vested s h o r t - t e r m i n t e r e s t in
s e e i n g the LRT
Review
process
move
forward,
regardless
of
the
long-term
c o n s e q u e n c e s to F i r s t N a t i o n s ' c o n s t i t u t i o n a l
agenda.

III.

RECOMMENDATIONS

FOR

DISCUSSION.

T h eDIAND—
LRT
R e v i e w and t h eAFN—
LRT
R e v i e w must
be s t o p p e d i n
t h e i r t r a c k s . Both undermine
the c o n s t i t u t i o n a l agenda of
First
Nat i o n s a n d , r e g a r d l e s s of c l a i m s to the c o n t r a r y , b o t h w i l l
lead
to a r e d u c t i o n of the M i n i s t e r ' s f i d u c i a r y t r u s t o b l i g a t i o n s .
The o n l y
way to
p r e v e n t the
government from
permanently
sidetracking
First Nations'
c o n s t i t u t i o n a l agenda
is a d i s c i p I i n e d
strategy
of
non-participation
by
First
Nations
and
Indian
o r g a n i z a t i o n s i n DIAND i n i t i a t i v e s l i k e t h e LRT R e v i e w .
N o n - p a r t i c i p a t i o n must be
b r o a d l y d e f i n e d to
include a c t i v i t i e s
w i t h an a p p e a r a n c e o f
" c o n s u l t a t i o n " t h a t the government can and
w i l l use to
legitimize its policy decisions.
This is e s p e c i a l l y
t r u e f o r t h e LRT
Review, where
this far-ranging
exercise w i l l
r e s u l t , f o r a l l p r a c t i c a l p u r p o s e s , i n a new r e v i s e d I n d i a n A c t .
The
AFN cannot
be r e l i e d
upon to
f a i r l y or
accurately
inform
F i r s t N a t i o n s a b o u t t h e LRT R e v i e w o r i t s c o n s e q u e n c e s .
T h i s work
i s c r u c i a l and m u s t be
c a r r i e d o u t as s o o n as p o s s i b l e
by F i r s t
Nations
and
PTOs
with
a
clear
understanding
of
the s t a k e s
involved.
.

. . /11

11.

A u t h o r i z a t i o n s o u g h t by A F N f r o m F i r s t N a t i o n s f o r p a r t i c i p a t i o n /
c o l l a b o r a t i o n in
t h eDIAND—
LRT
R e v i e w s h o u l d be s t r o n g l y
opposed
a t b o t h t h e r e g i o n a l and n a t i o n a l
levels.
If
First
Nations
feel
that
LRT
issues
are
a
priority,
a
completely
independent
First
Nations
LRT
study
could
be
undertaken
(with a
timeframe e s t a b l i s h e d
by F i r s t N a t i o n s ,
not
D I A N D ) . The s t u d y c o u l d be d e c e n t r a l i z e d r e g i o n a l l y o r u n d e r t a k e n
at
the n a t i o n a l
l e v e l . The
r e s u l t s of
the s t u d y ,
w i t h recommendations,
could
then
be
tabled
with
the
M i n i s t e r and t h e
Standing
C o m m i t t e e as an
independent F i r s t N a t i o n s '
alternative
t o t h eDIAND—
LRT
Review.
F o r an i n d e p e n d e n t LRT s t u d y , " n o
be s o u g h t f r o m
the g o v e r n m e n t .
In
r e j e c t e d , no s t u d y w o u l d be b e t t e r

s t r i n g s " funding would have
the event that t h i s f u n d i n g
than a compromised s t u d y .

to
is

In
the
absence
of
an
independent
study, F i r s t Nations could
reject
t h eDIAND—
LRT
R e v i e w o u t - o f - h a n d as
fundamentally
flawed
by
lack
of
significant
Indian
i n p u t or s u p p o r t . An
effective
lobby against
the Indian A c t
amendment " p a c k a g e " c o u l d
t h e n be
mounted
when
the
legislation
is
introduced
in
the House of
C o m m o n s . (On t h e o t h e r h a n d , i f t h eAFN—
LRT
Review
is s u p p o r t e d ,
the
effectiveness
of
an
Indian
lobby
against
t h e amendment
" p a c k a g e " w i l l be d i m i n i s h e d and t h e g o v e r n m e n t w i l l h a v e i t s way
i n the e n d . )

* * *

SUBMISSION TO THE UBCIC UPDATE FROM THE ALLIANCE OF TRIBAL COUNCILS,
RE: CN Twin T r a c k i n g

F o l l o w i n g v i c t o r y i n t h e c o u r t o f a p p e a l on F e b r u a r y 2 1 , 1 9 8 9 , CNR a n n o u n c e d
i t s i n t e n t i o n t o a p p e a l t h e d e c i s i o n t o t h e Supreme C o u r t o f C a n a d a .
I t may t a k e u n t i l
t h e end o f summer
1989 t o g e t a d e c i s i o n
from the
Supreme C o u r t .
The f e d e r a l and p r o v i n c i a l Crowns t o d a t e h a v e now
sought
t o appeal t h i s d e c i s i o n .
The A l l i a n c e i n t e n d s t o p r o c e e d on t h e a s s u m p t i o n
t h a t l e a v e w i l l n o t be g r a n t e d .
The A l l i a n c e i s s t i l l
these set-backs.

hopeful

t o keep

i t s September

1989 t r i a l

date

despite

* * *

. . ./12

- 12 OTTAWA'S ASSAULT ON FIRST NATIONS EDUCATION

"Controlling The Dialogue"

Statements by t h e M i n i s t e r of Indian A f f a i r s and h i s b u r e a u c r a t s are
i n t e n d e d t o c r e a t e an impression i n the media and the p u b l i c t h a t :
(a)

The f e d e r a l government has been and continues t o be more than generous
and f a i r i n the conduct o f i t s Post-Secondary Student A s s i s t a n c e Program.

(b)

Budgetary a l l o c a t i o n s
f o r Post-Secondary Education
have
increased
s i g n i f i c a n t l y over t h e y e a r s (from $9 m i l l i o n i n 1977-1978 t o $130
m i l l i o n i n 1988-1989).

(c)

The new p o l i c y i s designed t o improve i n c e n t i v e s , provide encouragement,
emphasize s c h o l a s t i c achievement, and accent those e d u c a t i o n s e c t o r s
which have most r e l e v a n c e t o community needs.

The p o s i t i v e sounding r h e t o r i c emanating from Ottawa obscures many o f
t h e r e a l f a c t s and i m p l i c a t i o n s about t h e p o l i c y changes.
I t would be f a i r
t o suggest t h a t Federal a u t h o r i t i e s have embarked on a d e l i b e r a t e p o l i c y of
d e c e p t i o n i n order t o defuse r e s i s t a n c e a g a i n s t the p o l i c y changes t h a t i s
i n c r e a s i n g among n a t i v e p e o p l e s .
Indeed, i t appears t h a t t h e f e d e r a l S.W.A.T.
team ( S p e c i a l Words and T a c t i c s ) , designed by c o n s u l t a n t s f o r t h e M i n i s t e r of
I n d i a n A f f a i r s i n May 1987, i s p r o v i d i n g a model f o r " c o n t r o l l i n g t h e d i a l o g u e "
w i t h t h e p u b l i c and the media on the education i s s u e .

What Actually Shaped the Policy Changes?

The changes that have been made t o the post-secondary e d u c a t i o n p o l i c y
were
not prompted by any f e d e r a l quest f o r e f f i c i e n c y , o r improved r e s u l t s .
On t h e c o n t r a r y • an examination of the evidence shows t h a t t h e needs and
a s p i r a t i o n s of n a t i v e students d i d not enter at a l l i n t o Ottawa's p o l i c y
exercise.
The r e a l r a t i o n a l e which u n d e r l i e s the p o l i c y changes are as f o l l o w s :
(a)

In A p r i l 1985, the N e i l s o n Task Force on program review completed a 523
page r e p o r t and recommendations on Indian and Native programs.
This
r e p o r t recommended major c o s t - c u t t i n g i n Indian programs which were t o
be achieved by dropping s e r v i c e s which were not a s t a t u t o r y requirement,
and by t r a n s f e r r i n g c o s t s t o provinces and bands.
N a t i v e e d u c a t i o n was
i n c l u d e d i n t h i s review and ear-marked f o r the same c o s t
cutting
exercise.

(b)

N e i l s o n ' s recommendations were supposed t o be approved i n secret and
indeed, were on t h e i r way t o Cabinet f o r approval when they were leaked.
The f u r o r that r e s u l t e d i n r e a c t i o n t o N e i l s o n ' s recommendations prompted
the Prime M i n i s t e r t o downplay i t s importance as a r e p o r t , and t o
assure the p u b l i c and n a t i v e people t h a t t h e recommendations were not
about t o become a p o l i c y .
An impression was c r e a t e d t h a t the r e p o r t
would be s h e l v e d .
In f a c t , i t s recommendations were approved i n
Cabinet the f o l l o w i n g October, and have been shaping f e d e r a l budgetary
p o l i c i e s f o r n a t i v e people s i n c e t h a t time.

(c)

S i m i l a r l y , the Prime M i n i s t e r promised at a F i r s t M i n i s t e r s ' Conference
i n A p r i l 1985 t h a t h i s government would undertake a major i n i t i a t i v e
t o ensure t h a t l e g a l substance and f o r c e would be g i v e n t o past t r e a t i e s
as well as t o t r e a t i e s t h a t remain t o be n e g o t i a t e d w i t h about h a l f t h e
n a t i v e peoples of Canada who have not entered i n t o such p a c t s .
Steps
were taken t o begin e x p l o r i n g the issue of a b o r i g i n a l and t r e a t y r i g h t s
under the aegis of the Hon. David Crombie when he was M i n i s t e r of Indian
Affairs.
The government however q u i c k l y k i l l e d t h i s
initiative
because i t was p e r c e i v e d t o be i n c o n t r a d i c t i o n t o N e i l son's approach,
which has become the o p e r a t i n g p o l i c y .

. . . /13

- 13 (d)

As m a t t e r s now s t a n d , Ottawa's p o s i t i o n i s t h a t post-secondary education
i s n e i t h e r a s t a t u t o r y r i g h t , nor i s i t an a b o r i g i n a l or t r e a t y r i g h t .
This p o s i t i o n i s i n f a c t c o n s i s t e n t w i t h N e i l s o n ' s i n t e r p r e t a t i o n of
n a t i v e r i g h t s as s t a t e d i n h i s r e p o r t .
Moreover, i n l i n e with the
N e i l s o n approach, (which i s s i m i l a r i n substance
t o the t e r m i n a t i o n
policy outlined
i n the White Paper of
1969), the
present
federal
government i s working a c t i v e l y t o d i s m a n t l e i t s t r u s t r e p o n s i b i l i t i e s ,
which have t h e i r source i n the Royal Proclamation 1763 and the t r e a t i e s .
The new e d u c a t i o n p o l i c y in f a c t r e p r e s e n t s a major step i n doing
away w i t h the t r u s t r e l a t i o n s h i p .
If i t becomes p o s s i b l e to deny a
post-secondary
education
t o some n a t i v e people,
a
precendent
is
e s t a b l i s h e d f o r e v e n t u a l l y c u t t i n g o f f f e d e r a l funding f o r a l l s t u d e n t s .

(e)

Ottawa's r a t i o n a l e , d e r i v e d from the N e i l s o n r e p o r t , i s t h a t p r o v i n c e s
r e c e i v e s u b s t a n t i a l t r a n s f e r payments f o r h e a l t h , w e l f a r e and p o s t secondary e d u c a t i o n as block f u n d i n g under the E s t a b l i s h e d Programs
Funding A c t .
Federal e s t i m a t e s are t h a t p r o v i n c e s cover from 80%
to 90% of the c o s t s of post-secondary education out of t h e s e f e d e r a l
transfers.
At the same t i m e , the t r a d i t i o n a l and c u r r e n t p o s i t i o n of
p r o v i n c e s i s t h a t the f e d e r a l government remains r e s p o n s i b l e f o r funding
100% of the c o s t s f o r n a t i v e post-secondary
education.
Ottawa's
p o s i t i o n i s t h a t i n c a r r y i n g 100% of n a t i v e e d u c a t i o n c o s t s , i t i s
engaged i n a form of d o u b l e - f u n d i n g .
This d i s p u t e between Ottawa and
the p r o v i n c e s remains u n r e s o l v e d .
In the i n t e r i m , the
federal
government has a c t e d u n i l a t e r a l l y t o r e s t r i c t and cap i t s a l l o c a t i o n
f o r post-secondary e d u c a t i o n and, i n e f f e c t , has passed the buck t o
the p r o v i n c e s .
In the meantime, i t i s n a t i v e students who are being
squeezed and d e p r i v e d of e d u c a t i o n o p p o r t u n i t i e s .

A Smoke and M i r r o r Game

Federal a s s e r t i o n s t h a t budgetary a l l o c a t i o n f o r post-secondary
have i n c r e a s e d s i g n i f i c a n t l y are b l a t a n t l y f a l s e .
For example:

education

(a)

P r i o r t o the passage of B i l l C-31 ( d u r i n g 1984-85), f e d e r a l a l l o c a t i o n s
f o r n a t i v e post-secondary
e d u c a t i o n t o t a l l e d $49.4 m i l l i o n .
This
a l l o c a t i o n served a p o p u l a t i o n of a b o r i g i n a l peoples ( i n c l u d i n g I n u i t )
of around 377,000.

(b)

Following
the
passage
of
Bill
C-31,
approximately
110,000
n a t i v e people sought r e i n s t a t e m e n t under the Indian Act, and t o - d a t e
almost 50,000 have i n f a c t been r e i n s t a t e d .
A f u r t h e r backlog of around
45,000 are being processed
( a p p l i c a t i o n s f o r the balance have been
rejected).
The present budget, r e p o r t e d to be around 130 m i l l i o n ,
t h e r e f o r e , i s s e r v i n g a t o t a l p o p u l a t i o n ( i n c l u d i n g I n u i t ) of around
427,000 p l u s of f u r t h e r p o s s i b l e p o p u l a t i o n of over 40,000 once t h e i r
a p p l i c a t i o n s are processed d u r i n g the balance of t h i s y e a r .

(c)

B i l l C-31 has r e s u l t e d i n a s i g n i f i c a n t and r a p i d i n c r e a s e of n a t i v e
people who g a i n e l i g i b i l i t y f o r f e d e r a l programs and s e r v i c e s .
Much
of the C-31 p o p u l a t i o n come from urban backgrounds and i t i s e s t i m a t e d
t h a t 90% have i n d i c a t e d t h a t they plan t o send t h e i r c h i l d r e n t o
u n i v e r s i t y or c o l l e g e .
Approximately 2,700 of the n a t i v e students
now a t t e n d i n g u n i v e r s i t y gained t h e i r e l i g i b i l i t y as a r e s u l t of C-31.

(d)

In 1984-85 n a t i v e students were r e c e i v i n g an average of c l o s e t o
$9,000 per c a p i t a a n n u a l l y i n post-secondary e d u c a t i o n .
This i n c l u d e d
t u i t i o n and course f e e s , t r a v e l a l l o w a n c e , rent s u b s i d y , book f e e s ,
a l l o w a n c e , day c a r e , guidance
and c o u n s e l l i n g , and o t h e r
services.
The new p o l i c y has the e f f e c t of reducing p e r - c a p i t a c o s t s f o r p o s t secondary e d u c a t i o n t o around $8,000.
I f i n f l a t i o n i s taken
into
account, the r e d u c t i o n i s even more d r a s t i c .
This d i f f e r e n c e i n
e d u c a t i o n a l support i s i l l u s t r a t e d g r a p h i c a l l y in the case of one of
the s t u d e n t s who i s c u r r e n t l y on a hunger, s t r i k e .
As a s i n g l e p a r e n t ,
w i t h f o u r c h i l d r e n , the e f f e c t of the new p o l i c y i s to reduce e d u c a t i o n a l
support f o r her by $245 per month.

(e)

In 1984, P M A C o n s u l t i n g Group d i d a study f o r the Department of Indian
A f f a i r s , which was noted by the N e i l s o n Task Force.
The P M A Study
i n d i c a t e d t h a t the u n i v e r s i t y p a r t i c i p a t i o n rate of n a t i v e students
i n c r e a s e d from 1% to 12% over 20 y e a r s .
The n a t i o n a l average i s about
20%.
A c c o r d i n g to the c o n s u l t a n t s , a t h r e e f o l d i n c r e a s e i n spending
l e v e l s i s needed t o i n c r e a s e n a t i v e students e n r o l l m e n t and
success
to the n a t i o n a l average.
In terms of 1984 d o l l a r s , the i m p l i c a t i o n
i s t h a t the budget a l l o c a t i o n f o r post-secondary e d u c a t i o n
should
be about $197 m i l l i o n ( f a c t o r i n g i n the C-31 p o p u l a t i o n s i n c e 1984).
. . . /14

- 14 -

Summary
The e f f e c t of the new

policy therefore is to:

(i)

Cap
appropriations
for
native
post-secondary
education
and
deny
increasing
numbers
of
native
students
educational
opportunities.
(So f a r t h i s year, 240 u n i v e r s i t y entrance students have been prevented
from a t t e n d i n g u n i v e r s i t y ) .

(ii)

Reduce l e v e l s of a s s i s t a n c e to i n d i v i d u a l students,
or i m p o s s i b l e f o r many to continue t h e i r e d u c a t i o n .

(iii)

E s t a b l i s h c r i t e r i a and c o n t r o l s on n a t i v e c a r e e r c h o i c e s i n order t o
c r e a t e " i n c e n t i v e s " f o r n a t i v e students t o take courses favoured by
f e d e r a l bureaucrats.
The purpose seems to be to c r e a t e n a t i v e s i n
the image of f e d e r a l bureaucrats who can take over many of the f u n c t i o n s
and values of the Department of Indian A f f a i r s .

In a d o p t i n g

the new

p o l i c y , Ottawa i s attempting

making i t

t o achieve two

difficult

purposes:

(i)

Reduce f e d e r a l c o s t s by
will
be compelled t o
provinces).

so s t r u c t u r i n g the p o l i c y t h a t n a t i v e students
seek other
sources of funding
(namely
the

(ii)

Dismantle the f e d e r a l
d e f i n e d by the Guerin
leads t o the t e r m i n a t i o n
to the e x t i n c t i o n of an

t r u s t r e s p o n s i b i l i t i e s f o r n a t i v e people
as
D e c i s i o n and other court cases ( t h i s process
of a b o r i g i n a l and t r e a t y r i g h t s and u l t i m a t e l y ,
aboriginal identity).

The

Issues of Fairness

F e d e r a l a u t h o r i t i e s i n s i s t t h a t the f e d e r a l p o l i c y i s " f a i r " i n r e l a t i o n
t o the k i n d of a s s i s t a n c e provided t o the r e s t of the p o p u l a t i o n i n Canada.
The f a c t i s t h a t the a b o r i g i n a l p o p u l a t i o n i n t h i s country cannot be measured
i n any e q u i t a b l e terms w i t h o t h e r Canadians.
The r e a l i t y i s as f o l l o w s :
(a)

The m a j o r i t y of n a t i v e people are young, mostly because the l o n g e v i t y
of o l d e r generations has been a f f e c t e d by poor h e a l t h s e r v i c e s , bad
h o u s i n g , t h i r d r a t e e d u c a t i o n a l s e r v i c e s , d i s c r i m i n a t i o n , and poverty a l l managed and m a i n t a i n e d by an a l i e n and d i s t a n t f e d e r a l bureaucracy.

(b)

50% of n a t i v e people are under age 20 compared to 32% of the n a t i o n a l
population.
The n a t i v e p o p u l a t i o n i s i n c r e a s i n g at t w i c e the n a t i o n a l
average.

(c)

Only 20% of n a t i v e people have completed high school - compared t o
75% of o t h e r Canadians.
70% of the n a t i v e p o p u l a t i o n have l e s s than
a high school education - compared t o 45% i n mainstream Canada.
38%

natives

have

l e s s than grade 8 - compared

20%

for

others.

These f i g u r e s show g r a p h i c a l l y t h a t any i n c r e a s e i n u n i v e r s i t y attendance
by n a t i v e students should be viewed and supported as a l i g h t at what
has been a long and dark t u n n e l .
Ottawa's p o l i c y i s designed t o
extinguish this light.
(d)

Unemployment r a t e s i n most n a t i v e communities average around 55%
and
i n some l o c a l e s are as high as 90%.
Native incomes are l e s s than
t w o - t h i r d s of the n a t i o n a l average and are d e r i v e d mostly from p a r t time work and v a r i o u s forms of supplementary a s s i s t a n c e .
(Social
A s s i s t a n c e costs i n 1986 exceeded $313 m i l l i o n . )
The N e i l s o n Task
Force noted i n i t s commentary t h a t among the n a t i v e students who attended
u n i v e r s i t y (whether they graduated o r not) s u c c e s s f u l employment r e s u l t e d
in more than 90% of the cases.
I t t h e r e f o r e seems to be
strange
economic reasoning t h a t would c r e a t e b a r r i e r s t o post-secondary education
and leave n a t i v e people unemployed and dependent on s o c i a l a s s i s t a n c e .

/15

- 15 (e)

Dependency i n l i e u o f education b r i n g s w i t h i t other c o s t s i n a d d i t i o n
to s o c i a l a s s i t a n c e .
Recent f i g u r e s show t h a t 70% of a l l admissions
t o f e d e r a l p e n i t e n t i a r i e s i n the western p r o v i n c e s (where t h e m a j o r i t y
of a b o r i g i n a l people l i v e ) are n a t i v e .
These f i g u r e s a l s o i n d i c a t e
t h a t 70% o f the t o t a l n a t i v e p o p u l a t i o n can expect t o go t o j a i l by age
25 - compared t o 8% o f t h e general p o p u l a t i o n .
Other
institutional
c o s t s a r e j u s t as h i g h .
For example, h o s p i t a l admissions are 2 1/2
times h i g h e r than t h e n a t i o n a l average.
A cap on e d u c a t i o n c o s t s
can o n l y be t r a n s l a t e d i n the end t o much h i g h e r n e g a t i v e c o s t s .
There
are no s a v i n g s f o r the t a x p a y e r .

(f)

Almost 50% o f n a t i v e c h i l d r e n r e q u i r e s p e c i a l e d u c a t i o n a c c o r d i n g t o
provincial
c r i t e r i a because o f the poor q u a l i t y o f elementary and
secondary e d u c a t i o n f i n a n c e d by the f e d e r a l government.
This f i g u r e
compares w i t h 15% i n t h e general p o p u l a t i o n .
Those n a t i v e students
who r i s e above these handicaps
c l e a r l y need continued t o support i f
they a r e t o succeed.

Summary
Capping and c u t t i n g - b a c k on n a t i v e post-secondary e d u c a t i o n c l e a r l y i s
a r e g r e s s i v e and d e s t r u c t i v e measure t h a t t a k e s no account of t h e s o c i a l and
economic c o n d i t i o n s i n which n a t i v e people l i v e .
Ottawa may be a t t e m p t i n g t o
demonstrate t h a t i t i s penny wise, but time w i l l q u i c k l y show t h a t i t i s being
pound f o o l i s h .

Ottawa's Manipulation of the Consultative Process

It has been long e s t a b l i s h e d p r a c t i c e and some would argue, a l e g a l
r e q u i r e m e n t s , t h a t Ottawa c o n s u l t s w i t h n a t i v e people before i n a u g u r a t i n g any
major changes i n p o l i c y .
Prime M i n i s t e r Trudeau r e a f f i r m e d t h i s
policy
f o l l o w i n g t h e debacle t h a t accompanied h i s t e r m i n a t i o n p r o p o s a l s i n a "White
Paper" i n 1969.
Mr. Mulroney has made s i m i l a r promises i n F i r s t M i n i s t e r s
c o n f e r e n c e s and on other o c c a s i o n s .
The emergence of a new e d u c a t i o n p o l i c y c l e a r l y shows t h a t t h e present
Prime M i n i s t e r does not t a k e h i s p u b l i c pronouncements s e r i o u s l y .
His
government went through a charade t h a t was represented as " c o n s u l t a t i o n "
p u r e l y f o r p u b l i c r e l a t i o n s purposes.
There was no i n t e n t i o n o f l i s t e n i n g t o
n a t i v e views.
For example
(a)

The Assembly of F i r s t Nations
r e c e i v e d funding from
the federal
government, beginning i n 1984, to e s t a b l i s h a " N a t i o n a l Indian Education
Forum" which would review e d u c a t i o n a l p o l i c y and p r o v i d e a means f o r
t r a n s f e r r i n g control of educational p o l i c y to native people.
The AFN
was supposed t o survey n a t i v e views, and develop a p o s i t i o n which t h e
government would t a k e i n t o account i n f o r m u l a t i n g a new p o l i c y .

(b)

There i s c l e a r evidence t h a t t h e government had no i n t e n t i o n whatsoever
of h e a r i n g what n a t i v e people had t o say about e d u c a t i o n p o l i c y and
practices.
Minutes o f a s e c r e t meeting o f p o l i t i c i a n s and b u r e a u c r a t s
dated January 19, 1988 were leaked i n May of the same y e a r .
Under
the heading "Post-Secondary
I n s t i t u t i o n s " , there i s a n o t a t i o n t h a t
indicates
policy
d e c i s i o n s were being taken without r e f e r e n c e t o the AFN
c o n s u l t a t i o n e x e r c i s e o r , t o quote ". . . get d e c i s i o n by March, before
AFN r e p o r t on Indian e d u c a t i o n " .

(c)

I t was on March 20th, 1989 t h a t t h e M i n i s t e r r e l e a s e d h i s announcement
about t h e new post-secondary p o l i c y .
In t a k i n g t h i s a c t i o n , he
reduced t h e s o - c a l l e d AFN/Departmental process t o something worse than
a c o n f i d e n c e game.
The new p o l i c y which the government i s so
s t a u n c h l y defending f l i e s i n the face o f t h e recommendations t h a t t h e
N a t i o n a l Indian Education Forum was b r i n g i n g f o r t h .
Departmental
o f f i c i a l s are now e x p l a i n i n g t h e i r pre-emptive a c t i o n as " d i f f i c u l t i e s
over communication."
This i s p a r t o f t h e i r S.W.A.T. s t r a t e g y of
" c o n t r o l l i n g the d i a l o g u e . "
The DIA i s now proposing a c o n s u l t a t i o n
process t o t a l k about a p o l i c y t h a t has been u n i l a t e r a l l y imposed on
n a t i v e people by the government - t o see i f i t can be improved i n some
respects.
The t a c t i c seems t o o f f e r t h e AFN another grant - t o keep
them busy studying and c o n s u l t i n g , and i n t h e p r o c e s s , b l u n t any
prospect o f massive n a t i v e p r o t e s t .
. . . /16

The p o s i t i o n
r e a s o n a b l e , namely:

of n a t i v e people

education

policy

remains

modest

and

(a)

P o l i c y changes t o Indian post-secondary education were developed
secrecy i n Ottawa board-rooms without r e f e r e n c e to the work done
the AFN or to the views of n a t i v e students or n a t i v e communities.

in
by

(b)

A moratorium t h e r e f o r e should be d e c l a r e d on the p o l i c y changes t o permit
a proper c o n s u l t a t i o n process to take p l a c e .

(c)

A moratorium w i l l a l s o permit a r e f e r e n c e to the Supreme Court of Canada
to s e t t l e the issue on whether n a t i v e education i s an a b o r i g i n a l
and
treaty right.
This i s a very s e r i o u s issue which should not be a
matter f o r a r b i t r a r y and c a p r i c i o u s d e c i s i o n by f e d e r a l
politicians
to serve t h e i r p r e o c c u p a t i o n w i t h c o s t - c u t t i n g .

(d)

Any
f u t u r e c o n s u l t a t i o n on
post-secondary
education
should be
so
s t r u c t u r e d that the process i n v o l v e s the students who are most d i r e c t l y
e f f e c t e d , as w e l l as the predominantly y o u t h f u l p o p u l a t i o n of n a t i v e
communities.

(e)

I t i s t h e r e f o r e proposed t h a t a b i l a t e r a l
consultative
attempted which w i l l permit a genuine
j o i n t review and
of
f u t u r e education p o l i c y .
The main elements in such
process should be:

process
be
formulation
a bilateral

(i)

An A b o r i g i n a l - T r e a t y Peoples'
Commission
which
would
include
two r e p r e s e n t a t i v e s from the f e d e r a l government, f o u r from the
a b o r i g i n a l and t r e a t y student body, and one from the Assembly
of F i r s t N a t i o n s .

(ii)

The Commission would appoint an Executive D i r e c t o r and a cadre
of community workers who, under t h e i r d i r e c t i o n , would prepare
an i n f o r m a t i o n package and p r e s e n t a t i o n format as a b a s i s f o r
i n v o l v i n g n a t i v e students and communities in education i s s u e s
and o p t i o n s .

(iii)

The community workers would conduct a s e r i e s of workshops w i t h
a b o r i g i n a l and t r e a t y students and w i t h n a t i v e people in the
communities.
The purpose would be t o inform and to
compile
views, o p i n i o n s and p r o p o s a l s .

(iv)

The data brought back would be d r a f t e d i n t o a comprehensive
report f o r review, and r a t i f i c a t i o n by the Commission.

(v)

The r e p o r t would be submitted to the f e d e r a l
government
and
become the b a s i s f o r d e v e l o p i n g a submission to the Cabinet
with recommendations and
arguments based on the Commission's
findings.

(vi)

Cabinet has the o p t i o n of a c c e p t i n g , changing
Commission's recommendations.
In the l a t t e r
may have t o be f u r t h e r b i l a t e r a l n e g o t i a t i o n s
between
federal
authorities
and
Commission

or r e j e c t i n g the
two cases, t h e r e
or c l a r i f i c a t i o n
representatives.

( v i i ) At the end of such a b i l a t e r a l process, the r e s u l t would be
education p o l i c y t h a t i s j o i n t l y formulated and supported.

* * *

gue LANDS OUR Fur, Ue

200 - 73 Water Street, Vancouver, B.C. V6B 1A]
Telephone: (604) 684-0231

UPDATE

April 1989
MESSAGE FROM THE PRESIDENT:

For Indian Peoples, the recent re-election of the Conservative Party as the
government of Canada means the ongoing implementation of the policies it has
developed over the past five years. The stampede toward the termination cliff
continues.

In this mailing, we can see how the DIA's current Lands, Revenues and Trusts
(LRT) Review is another rail on the track leading to the extinguishment of our
Aboriginal Title and Treaty Rights.

This LRT Review was initiated because of the Supreme Court ruling in the
“Guerin case" (1984) on the federal government's fiduciary trust and because of the
1986 Auditor-General's Report on the inadequate ways that the government has been
meeting its trust obligations. As a result of these two events, the federal
government had to review its LRT policies, procedures and staffing.

The stated goal of the LRT Review is legislative changes that will "provide
the Minister with a set of new discretionary authorities" for the exercise of his
trust responsibilities. The LRT Review, when it is finished, will result in a
large "package" of amendments to the Indian Act, rather than piecemeal changes to
the Act, as represented by Bill C-123 or any of the amendments proposed for Section
/3.

The LRT Review challenges us with the following questions: -

Are we as Indian People prepared to surrender on the issue of constitutional
recognition and accept an administrative definition of Indian self-government?

Are we prepared to accept the government's idea that Indian Governments have
never existed and, according to their plan, shall never exist?

Are Indian People looking to a de-colonizing (political) solution rather than a
devolution (administrative) solution’ to the land question issue, self-government
and treaty entitlements?

In British Columbia, after many years of research and community op
we have adopted an Aboriginal Title and Rights Position Paper (ratifi
updated in 1984).

Nationally, we have proclaimed the Declaration of First Nations and also outlined
our Treaty and Aboriginal Rights Principles.

We must not be distracted by government termination strategies like the LRT
Review. And we must not participate in such activities, for it will be taken by
the government as our Peoples' consent to our own termination!

We as Indigenous Peoples, must be recognized as the "distinct societies" that we
are. Our First Nations must be accorded the consitutional recognition that is their
right. All of our energy and efforts should be directed toward achieving this
paramount political goal.

Yours truly,

«le =

LEGAL UPDATE: Fiduciary Obligation

An analysis regarding the Federal ‘Government's fiduciary obligation in light of
the Guerin case, and in light of existing International law.

"a nternatlonal Law
cred Trust of Civilization:

As primary colonizer, Great Britain assumed obligations to the Indian
Nations which have become known as “the sacred trust of civilization*. The concept has
its roots in much earlier times. Francisco de Vitoria, a Spanish cleric argued as early as
1532 that if the Spanish authorities assumed administration authority over the Indians it
should be "for the welfare and in the interests of the Indians and not merely for the profit
of the Spaniards." (De Indis Section 3)

The obligation of the colonizer to protect the property and status of the
Indians is one which was recognized by Britain. It was expressed in the Royal
Proclamation, of 1763. In that document it is clearly spelled out that the lands belonging
to the Indian Nations remain reserved to them until through a process of formal
surrender, they are yielded up to the Crown.

In 1837, the Select Committee Report of the British House of Commons in
considering the measures to be adopted with regard to the Indian people of North
America in the forming of the BNA Act stated that Great Britain held a trust:

“particularly belonging and appropriate to the executive government
as administered either in this Country (Great Britain) or by the

Governors of their respective colonies. This is not a trust which
could conveniently be confided to the local legisiatures.°

The culmination of the development of the concept of the sacred trust of
civilization is found in the Advisory Opinion of the International Court of Justice on the
Legal Consequences for States of the Continued Presence of South Africa in Namiba
(South West Africa) Notwithstanding Security Council Resolution 276 (1970). (1971) 1.C.J.
Rep. 1. The Court, after reviewing more recent treaties and resolutions of the General
Assembly of the United Nations, concluded:

"These developments leave little doubt that the ultimate objective of

the sacred trust was the self-determination and independence of the
peoples concerned.”

Thus, the trust obligations were to promote self-determination of the Indian
Nations which required that aboriginal title be acquired by consent. These obligations
were assumed by the Imperial Crown and were passed to Canada upon Canada
achieving independence, at the latest in 1930 with the passage of the Statute_of

Westminster.

2. The Guerin Cas

In the Guerin case, the Court was asked to examine whether certain
fiduciary obligations Canada holds to the Indian Nations are legally enforceable in the
Courts. The Court in Guerin examined the fiduciary obligation involved with the
surrendering of reserve land and held that the Federal Government became burdened
with legal fiduciary obligations to deal with that land in the Indians’ best interest.
However, in deciding upon that narrow point, the Court canvassed the roots of the
fiduciary obligation:

LEGAL UPDATE: (con't)

"The fiduciary relationship between the Crown and the Indians has its
roots in the concept of aboriginal native or Indian title...

... The Crown first took this responsibility upon itself in the Royal
Proclamation of 1763..."

Although the Guerin case involved reserved lands, the Court stated that the
discussion was equally applicable to lands which were not reserved land:
"It does not matter in my opinion that the present case is concerned
with the interest of an Indian Band and a Reserve rather than with

unrecognized aboriginal title and traditional tribal lands. The Indian
interest in the land is the same in both cases."

Finally, the Court affirmed that fiduciary obligations arise because the
Federal Government maintains a discretion to act on behalf of the Indians:
"We do agree however by statute agreement or perhaps unilateral

undertaking one party has an obligation to act for the benefit of
another, and that obliaation carries with it a discretionarv power, the

parties thus empowered becomes a fiduciary. Equity will then
supervise the relationship by holding him to the fiduciaries strict
standard of conduct..."

It is in the nature of this discretion that the sacred trust of civilization also
arises.

Conclusion

The Federal Government owes fiduciary obligations to protect the property
and sovereignty of the Indian Nations until the Indian Nations achieve seif-determination.
This general and large fiduciary obligation gives rise to obligations to act according to a
high standard when the government has jurisdiction to act for the benefit of Indians and
Indian lands. In such transactions, the Federal Government may be held accountable in
Court for any wrongdoing.

The Canadian Courts have not decided yet the full extent to which all
aspects of the fiduciary obligations may be legally enforceable.

THE MEANING OF TRUST:

Federal authorities have twisted and distorted the true meaning of sovereignty and

aboriginal title as defined by the Proclamation and Treaties. They have done much
the same kind of surgery on the meaning of trust.
Ottawa's interpretation of its trust responsibility is essentially racist. This

attitude has been built into the "Indian Act" and has shaped the ways the federal
government deals with Indian nations to this day.

Federal authorities operate on the premise that they have to look after Indian
property and money because Indians are not "fit" to do this for themselves. According
to Ottawa's line of reasoning, as soon as any group of Indians become "fit" to look
after their assets themselves, the Crown's trust responsibilities cease. Becoming
"fit", by Ottawa's definition, means that a group of Indians have accepted termination
and assimilation into so-called mainstream Canadian society.

_4-

THE MEANING OF TRUST: (con't)

As recently as the July 1988 edition of Ottawa's newest journal, something called
"Transition", the concept of fitness is spelled out clearly. In explaining its
latest triumphs of creating "fit" Indians the publication takes care to point out that:

"Individual communities wishing to negotiate alternative funding arrangements with the
Department must be able to demonstrate a capability to manage funds and programs, and
to agree to meet minimum program standards."

Clearly, what this means is that Indians have to meet Ottawa's criteria of fitness
in order to be trusted with alternative funding arrangements. When such Indians go
the final step over the Buffalo Jump, the trust relationship disappears according to
the federal government's interpretation of trust.

There is a trust relationship in law between the federal crown and Indian Nations,
but it is something very different then the way federal authorities see it.

Trust is a function of the Proclamation and Treaties. The Courts of Canada have
defined this kind of relationship as an Agency Trust. An agency trust is an under-
standing between an agent (i.e. the parliament of Canada) and the Principle (i.e.
Indian Nations) that the former will respect the political and territorial rights of
the latter, and if necessary, ensure that as the stronger party, the Crown will
intervene with third parties to protect the interests of Indian Nations.

An agency trust cannot be unloaded, transferred or terminated as long as there is

any substance to the spirit and intent of the Proclamation and Treaties. Within an
agency trust relationship it is Indian Nations who consent to delegate certain res-
ponsibilities to Canada and not the other way around.

There are certain other implications in an Agency trust relationship that
should be noted.

Because Parliament as an "Agent" cannot actually administer its delegated
responsibilities on behalf of Indian Nations, a special department has to be
established for this purpose. This is the Department of Indian Affairs, known in law
as the "Prime Agent". This is the reason that in earlier days, departmental staff
were known as "Indian agents". They were supposed to be acting as intervenors and
facilitators with third parties to ensure that Indian interests and rights were
properly protected. We know of course in retrospect that many Indian Agents did not
know how to do their job.

As the "Prime Agent", the Department is supposed to be accountable to Parliament
tor its role, because it is the Parliament of Canada that is the actual "Agent".

Parliament clearly is not properly fulfilling its legal role as "Agent" and is

legally vulnerable for its shortcomings. There are more than one hundred and fifty
court cases at present that have been launched by Indian Nations, some of which may
have the effect of getting Canada back on the right track. One problem of course is

that Canadian courts also may lose sight of the intent of the Proclamation and
Treaties in establishing an Agency trust.

Whatever role the courts ultimately play in determining the current application of
an Agency Trust, it is clearly established law that Parliament, as Agent, cannot alter
in any way the legal relationship of Indian Nations with the outside world without

their consent.

THE MEANING OF TRUST: (con't)

As the "Principle" in an Agency Trust relationship, Indian Nations have a duty to
keep Parliament and its administrative arm, the Department of Indian Affairs, properly

fulfilling their roles as “Agent". When Indian Nations fail to challenge the
unilateral actions of Parliament or the department - actions which impact on the legal
standing of Indians - the courts are likely to interpret such Indian silence as

implied consent.

For example, the Department recently underwent a major reorganization, not to
increase its effectiveness as a "Prime Agent", but to gear itself to the implementation
of a termination policy. It would have been proper for Indian Nations to forcefully
challenge the purpose and aims of Departmental reorganization at the time this was
being done. This is because under an Agency Trust, the department has no authority
to significantly change its functions and purpuse without the consent of Indian
Nations.

Twenty years ago, Indians understood their responsibilities as "Principle" in an
Agency Trust relationship. At that time the Department reorganized itself to
implement Pierre Trudeau's "White Paper", an earlier version of a termination policy.
Indian Nations acted in unison not only to cancel the policy but also to get the
department to suspend its efforts to reorganize.

The present government appears to have gotten away not only with implementing a
new termination policy but also with a major departmental reorganization. This time,
there were no serious objections from Indian Nations.
Have we forgotten how to fight back?

An even more serious implication of the growing erosion of an Agency Trust
is the government's blatant downsizing of the Department of Indian Affairs.
Parliament's responsibilities under the Proclamation and Treaties to administer an
agency trust cannot be carried out unless a "Prime Agent" exists for this purpose.
Once this responsibility gets diluted and spread around to a lot of other federal
and provincial departments, an agency trust no longer exists. This is in fact what
is taking place now.

Indian people should be challenging the purpose and aims of staff reductions in
the Department of Indian Affairs. We should keep the Department on the hook, as the
Crown's "Prime Agent" for adequate funding and for eventually instituting a system
of repatriation payments for past damages.

There can be no downsizing or dismantling of the Department while an Agency Trust

continues to exist in its present form. Neither should we agree to become
incorporated into Canada's role as “Agent" by having our local governments and tribal
councils act as sub-agents for the government. To protect the integrity of the

"Agency Trust", and to launch a direct attack on Ottawa's concept of "fitness", we
should insist that the Department of Indian Affairs take full responsibility for
program delivery. This would put the cat among the pigeons because the government
would be forced to rediscover its proper role as Agent.

An Agency Trust as defined by the Proclamation and Treaties is the pact this is
supposed to protect our sovereignty and our aboriginal title. It is a pact between
Canada and our nations. This kind of trust cannot be redefined or made to disappear
by eliminating the federal organization that is supposed to fulfill Canada's obliga-
tions as Agent. Such a trust relationship can only be translated in the end into con-
stitutional terms in a way which accommodates our sovereignty and our aboriginal title
within Canada's federal system. And this can only be done with our consent.

. /6

6 -

UNION OF B.C. INDIAN CHIEFS

LANDS , REVENUES & TRUSTS REVIEW:
SUWMARY_AND ANALYSIS OF

DIAND AND A.F.N. ACTIVITIES

I. THE DIAND-LRT REVIEW.

A. Background.

and staffing in light of the Supreme Court's ruling on the
government's fiduciary trust.

The DIAND-LRT Review began late in 1986. {It was originally in
the hands of the Office of the Comptroller-General, but is now
being done in-house by DIAND.) The folowing areas are being
reviewed by the Department:

Land management;

Land registry;

Indian monies;

Indian estates;

Individual trust accounts;

By-laws (including registration);
Elections and appeals;

Membership; and

Litigation (including test-case funding).

The DIAND-LRT Review is organized into three phases:

Phase I -- "scope out" issues and develop detailed
workplan (now complete);

Phase II -- identify key issues; complete workplans;
develop options for reform through "fact-
finding, analysis and consultation" (to be

completed by early 1989);
Phase I1f -- implementation (late 1989-90}.

Work on the DIAND-LRT Review is ‘on-target.'

The stated policy-development goal for the DIAND-LRT Review, is
to “achieve maximum progress in the shortest timeframe possible.
...{DIAND] will have a full set of options on a range of key
areas for the Minister-of-the-day to consider and sufficient
homework completed to... move changes through the system over the
first 6 months of 1989."

Regarding legislative changes, the stated goal of the LRT Review
is "to provide the Minister with a set of new discretionary
authorities" for the exercise of his trust responsibilities for
Indian lands, revenues, trusts and estates.

After the DIAND-LRT Review began, Bill C-123 was passed by the
House of Commons and was in the Senate at the time Parliament was

dissolved for the election. (Bill C-123 raises surviving spouses
preferential share of estates and amends Section 52 of the Indian
Act to safeguard the Minister's liability in distributing minors

trust funds. )

In addition, the Minister has proposed amendments to Section 73
of the Indian Act to establish and maintain a land registry sys-
tem for rights and interests in reserve and surrendered lands (a
response to the "Kamloops amendment").

- 7 =

Once the LRT Review is completed, this piecemeal approach to
amending the Indian Act will be replaced by a "package" of amend-
ments. The extensive nature of the LRT Review suggests that such
an amendment "package" would amount to wholesale revision of the
Act.

B. Analysis.
1) Self-government and Constitutional issues.

The DIAND-LRT Review is an integral part of the Department's
strategy for implementing legislated 'municipal' self-government
and devolution of administrative authority to Indian Bands. Al]
LRT initiatives are explicitly intended to support DIAND's
self-government program (LRT Review, "Guiding Principles").

With the LRT Review, the government continues to distract atten-
tion and energy from First Nations' agenda of constitutional
change.

Through the LRT Review, the Department is charting an alternative
"back-door' legislative route for its community self-government
initiative -- an alternative to 'front-door' self-government
legislation like the Sechelt Act. What First Nations' are not
prepared to accept with the Sechelt Act, they may be prepared to
accept as part of a "package" of Indian Act amendments that
appear to increase Indian controt over Indian lands and revenues.

The kind of legislative changes that DIAND anticipates from the
LRT Review will “legalize an improved status-quo," according to
Pam Keating, one of the Department officers in charge of the
review. The only way to make sense of this statement (made at the
Research Directors workshop in Ottawa last December) is to see it
as a part of the government's emphasis on “practical arrange-
ments" (as opposed to “impractical™ constitutional change) in
selling its community self-government = program. "Legalize the
status quo” means amend the Indian Act to define the fiduciary
responsibilities of the Minister more precisely, while expanding
the ability of the Minister to transfer responsibility and
accountability to Indian Bands (devolution).

The DIAND-LRT Review is a constitutional issue in the same way

that the Department's overall scheme for legislated community
self-government is, ultimately, a constitutional issue. Without a
constitutional amendment defining First Nations’ rights and
entititements, the LRT Review will result in new legislated

definitions and (optional) authorities for Indian governments and
the Minister. In short, an Indian Act amendment "package" wil!
displace Constitutional amendments as the legal basis for "Indian
self-government” in Canada.

2) Fiduciary trust obligations.

The LRT Review is the government's response to the Guerin

decision. As such, it is explicitly directed toward: a) defining/
clarifying the Minister's fiduciary obligations, responsibilities
and legal liabilities; and b) reforming LRT policies, practices

and staffing to reflect post-Guerin legal! realities.

The greatest danger that First Nations see in the LRT Review is
that it will result in a reduction of the Minister's trust obli-
gations to Indian people. This fear is well-know to DIAND and
senior officials repeatedly assure us that this wilt not occur.
DIAND emphasizes that changes, including legislative changes,
“will be primarily optional in nature," with Bands free to chose
whether they wish to opt for devolution or not.

Regardless of the Department's assurances, the fears of First
Nations are well-grounded.

One of the goals of the DIAND-LRT Review is to encourage greater
use of Sections 53-60 of the Indian Act. These sections allow the
Minister to delegate certain authorities to First Nations. Use of
these sections under a "revised" Indian Act would give the
appearance that the Minister's fiduciary trust responsibilities

. /8

- B -

were being discharged with devolution, while minimizing the
importance of a continuing "residual trust."

In this context of broad fiduciary responsibility, any attempts
by the Minister to "clarify" or “define” his trust obligations
through legislation are bound to narrow the terms of the trust
and reduce the Minister's legal liability. As far as trust
obligations toward Indian people are concerned, the "status quo"
cannot be “improved.”

Indeed, the DIAND-LRT Review will give the government a complete

inventory of its statutory obligations, along with recommended
procedures for property discharging its responsibilities. This is
a clear attempt to limit potential actions by First Nations

against the government for breaches of the fiduciary trust.

Fl. THE A.F.N.-LRT REVIEW.

A. Background.

At the AFN General Assembly in June, 1988, Resolution 17/88 di-
rected AFN: to seek funding for a First Nations'review of LRT; to
monitor the DIAND-LRT Review and the AFN-LRT review; to report
information on both reviews to First Nations in Canada; and to
involve First Nations in all levels of decision-making on the
AFN-LRT review.

The AFN signed a $193,200.00 contribution agreement with DIAND on
September 29, 1988 "for the sole and express purpose of insuring
that LRT issues are covered from a First Nations’ perspective and
that First Nations are fully aware of the implications of any
recommendations for change." The agreement also stipulates that
the work done by the AFN "will not duplicate the work done by the
Department but will enhance the work in areas which First Nations
feel require more in-depth analysis." The agreement may be ter-
minated by the Minister if the AFN is not "duly mandated by its
members to represent their interests related to the [DIAND] LRT
Review, "

Late in !988, the AFN organized its LRT Review. The AFN-LRT Re-
view has three phases:

Phase | - develop an LRT information base and identify
deficiencies in the DIAND review (6 months};

Phase Il - consultation with First Nations;

Phase III - implementation of AFN-LRT Review
recommendations.

A 13-member AFN-LRT Chiefs Committee has been established (with
Gord Peters and Joe Mathias as co-chairs). Regional repre-
sentation on the committee is incomplete at this time. (Mr. Hugh
Braker, the Nuu-Chah-Nulth Tribal Council's lawyer, is the B.C,
regional! rep.) Terms of reference have been drafted for this
committee, as well as a ‘mission statement' for the review as a
whole.

AFN-LRT Review Committee staff have been hired, including Brian
Shawana (coordinator) and Joe Sanders (legal advisor).

A set of “options for AFN participation in DIAND's LRT review"
has been prepared for discussion by the LRT Chiefs Committee.

-/ 9

B._Analysis.
The main issue involved in the AFN-LRT Review is the parti-

cipatiton of First Nations, through the AFN, in the DIAND-LRT
Review.

The terms of the contribution agreement restrict the AFN Review
(non-duplication of DIAND work; enhancement of DIAND consultant's
reports; etc.} and explicitly tie it into the DIAND Review. Aside
from organizing consultation meetings with First Nations, it
appears that AFN's LRT activities will mainly consist of
reviewing and responding to the DIAND consultants’ Phase II
reports. With only six months to develop a data base and review
the DIAND consuitants' reports Phase I of the AFN Review), First
Nations wi!! be forced to react to DIAND initiatives. In reality,
there will be little opportunity for First Nations to develop
their own set of options.

Experience shows that there are no long-term political benefits
gained by First Nations from participation in DIAND policy-
development processes over which they have no real control. En
such cases -- and the LRT Review is no exception, all the
political benefits accrue to the Department. Regardless of the
nature of their input, First Nations’ participation legitimizes
DITAND policy-development processes and any tegislative or
administrative changes that result. This is an important
political benefit to the Department. That is why DIAND is
pursuing its own LRT consultations with First Nations in addition
to those that may be conducted by the AFN.

The problems inherent in the AFN-LRT Review show up in its
"Guiding Principles" and "Mission Statement." According to the
"Guiding Principles," the work and positions adopted by the
AFN-LRT Review must be "consistent with the constitutional
strategy of self-determination." The LRT review process is a
legislative and administrative initiative. It is an alternative
to constitutional change. In this light, how can any aspect of
the AFN-LRT Review support First Nations' agenda for consti-
tutional recognition?

In fact, after the failure of the last FMC, it is fair to ask
whether First Nations really have a constitutional stratepy at
all. The goal of constitutional recognition may still be para-
mount but how to achieve it is an open question. Precisely

because there is a post-FMC constitutional strategy vacuum, First
Nations' participation in high-profile DIAND initiatives (the LRT

Review, AFAs, community self-government negotiations) is very
dangerous. These DIAND initiatives are all part of a different
kind of strategy: the government's "Buffalo Jump" strategy, whose
aim is to sidetrack First Nations' constitutional agenda

permanently.

The issues outlined in the AFN's LRT "Mission Statement™ confirm
the dangers of participation in the Review:

-- the government's time constraints and the large scope
of the DIAND-LRT Review pose a major problem for the AFN Review
right at the outset;

-- many First Nations do not want changes to the Indian
ACt;

-- current management of LRT is not supportive of First
Nations’ self-determination; and

-- the conflict (as defined by DIAND?) for First Nations

who want more control without lessening the government's trust
responsibilities.

. /10

- 4Q-

The AFN discussion paper on “Options for AFN Participation in
DIAND's LRT Review" adds more fuel to the dangerous fire. The
options outlined in the paper include:

-- AFN monitoring the DIAND-LRT Review and meeting with
senior Department officials;

AFN particpation on the various DIAND-LRT Review
Committees;

additional funding for a national workshop on LRT
issues and the distribution of information to First Nations;

additional funding for PYTOs, Tribal Councils and
First Nations to conduct their own research and consultation;

a joint working agreement between AFN and DIAND "to
plan, gather data, analyse LRT impact on First Nations, priorize
options for solutions and seek First Nations’ support of the
recommendations and options provided by DIAND."

The 'pros and cons' outlined in the paper for these options con-
cern: the "appearance" that AFN is in a consultation process for
all First Nations; that it is agreeable to DIAND recommendations
and fast-tracking ('cons'}; and that additional funding would
assist DIAND's Review ('pro'), although AFN "would lose contro!
over the timing and quality of the work” ('con').,

Furthermore, if AFN were only to monitor and not participate in
the DIAND-LRT Review, "this decision could cause DIAND tto be re-
luctant to further fund any AFN-LRT Review activities" -- a very
big 'con'! [Note: Resolution 17/88 only directs AFN to monitor
the DIAND-LRT Review. ]

This discussion paper, along with the contribution agreement,
clearly show the degree to which the AFN has already acquiesced
to DIAND's demand for First Nation participation and consultation
in exchange for LRT funding. Of course, AFN acquiescence is
assured by clause 8 of the contribution agreement, which allows
DIAND to cut AFN’s LRT funding if it is found that AFN does not
have a mandate from First Nations to participate in the DIAND-LRT
Review. The “carrot and stick" strategy continues to serve the
government well!

Clearly, AFN has a vested short-term interest in seeing the LRT
Review process move forward, regardless of the long-term
consequences to First Nations’ constitutional agenda.

11 {. RECOMMENDATIONS -- FOR DISCUSSION.

The DLAND-LRT Review and the AFN-LRT Review must be stopped in
their tracks. Both undermine the constitutional agenda of First
Nations and, regardless of claims to the contrary, both will lead
to a reduction of the Minister's fiduciary trust obligations.

The only way to prevent the government from permanently side-

tracking First Nations’ constitutional agenda is a disciplined
strategy of  non-particination by First Nations and Indian
alia aite miata OTS el T le ANID Initiatives like the LRT Review.

Non-participation must be broadly defined to include activities
with an appearance of “consultation” that the government can and
will use to legitimize its policy decisions. This is especially

true for the LRT Review, where this far-ranging exercise will
result, for all practical purposes, in a new revised Indian Act.

The AFN cannot be relied upon to fairly or accurately Dee
First Nations about the LRT Review or its consequences. This wor

is cruciaj} and must be carried out as soon as possible by First
Nations and PTOs with a clear understanding of the stakes

involved,

_/ii

_ (te

Authorization sought by AFN from First Nations for participation/
collaboration in the DIAND-LRT Review should be strongly opposed

at both the regiona) and national ievels.

If First Nations feel that LRT issues are a priority, a
completely independent First Nations LRT study could be
undertaken (with a timeframe established by First Nations, not
DIAND). The study could be decentralized regionaliy or undertaken

at the national level. The results of the study, with recom-
mendations, could then be tabled with the Minister and the
Standing Committee as an independent First Nations' alternative

to the DIAND-LRT Review.

For an independent LRT study, "no strings" funding would have to
be sought from the government. In the event that this funding is
rejected, po study would be better than a compromised study.

In the absence of an independent’. study, First Nattons could
reject the DIAND-LRT Review out-of-hand as fundamentally flawed
by lack of significant Indian input OF Support. An effective
Lobby against the Indian Act amendment package- could then be
mounted when the legislation is introduced in the House of

Commons. (On the other hand, if the AFN-LRT Review is supported,
the effectiveness of an Indian lobby against the amendment
"package" will be diminished and the government will have its way
in the end. }

SUBMISSION TO THE UBCIC UPDATE FROM THE ALLIANCE OF TRIBAL COUNCILS,
RE: CN Twin Tracking

Following victory in the court of appeal on February 21, 1989, CNR announced
its intention to appeal the decision to the Supreme Court of Canada.

It may take until the end of summer 1989 to get a decision from the
Supreme Court. The federal and provincial Crowns to date have now sought

to appeal this decision. The Alliance intends to proceed on the assumption
that leave will not be granted.

The Alliance is still hopeful to keep its September 1989 trial date despite
these set-backs.

./12

a 1 =

OTTAWA'S ASSAULT ON FIRST NATIONS EDUCATION

1. "Controlling The Dialogue"

Statements by the Minister of Indian Affairs and his bureaucrats are
intended to create an impression in the media and the public that:

(a) The federal government has been and continues to be more than generous
and fair in the conduct of its Post-Secondary Student Assistance Program.

(b) Budgetary allocations for Post-Secondary Education have increased
Significantly over the years (from $9 million in 1977-1978 to $130
million in 1988-1989).

(c) The new policy is designed to improve incentives, provide encouragement,
emphasize scholastic achievement, and accent those education sectors
which have most relevance to community needs.

The positive sounding rhetoric emanating from Ottawa obscures many of
the real facts and implications about the policy changes. It would be fair
to suggest that Federal authorities have embarked on a deliberate policy of
deception in order to defuse resistance against the policy changes that is
increasing among native peoples. Indeed, it appears that the federal S.W.A.T.
team (Special Words and Tactics), designed by consultants for the Minister of
Indian Affairs in May 1987, is providing a model for "controlling the dialogue"
with the public and the media on the education issue.

2. What Actually Shaped the Policy Changes?

The changes that have been made to the post-secondary education policy
were not prompted by any federal quest for efficiency, or improved results.
On the contrary:an examination of the evidence shows that the needs and

aspirations of native students did not enter at all into Ottawa's policy
exercise.

The real rationale which underlies the policy changes are as follows:

(a) In April 1985, the Neilson Task Force on program review completed a 523
page report and recommendations on Indian and Native programs. This
report recommended major cost-cutting in Indian programs which were to
be achieved by dropping services which were not a statutory requirement,

and by transferring costs to provinces and bands. Native education was
included in this review and ear-marked for the same cost cutting
exercise.

(b) Neilson's recommendations were supposed to be approved in secret and

indeed, were on their way to Cabinet for approval when they were leaked.
The furor that resulted in reaction to Neilson's recommendations prompted
the Prime Minister to dcwnplay its importance as a report, and to
assure the public and native people that the recommendations were not
about to become a policy. An impression was created that the report
would be shelved. In fact, its recommendations were approved in
Cabinet the following October, and have been shaping federal budgetary
policies for native people since that time.

(c) Similarly, the Prime Minister promised at a First Ministers’ Conference
in April 1985 that his government would undertake a major initiative
to ensure that legal substance and force would be given to past treaties
as well as to treaties that remain to be negotiated with about half the
native peoples of Canada who have not entered into such pacts. Steps
were taken to begin exploring the issue of aboriginal and treaty rights
under the aegis of the Hon. David Crombie when he was Minister of Indian
Affairs. The government however quickly killed _this initiative
because it was perceived to be in contradiction to Neilson's approach,
which has become the operating policy.

. 113

(d)

- 13-

As matters now stand, Ottawa's position is that post-secondary education
is neither a statutory right, nor is it an aboriginal or treaty right.
This position is in fact consistent with Neilson's interpretation of
native rights as stated in his report. Moreover, in line with the
Neilson approach, (which is similar in substance to the termination
policy outlined in the White Paper of 1969), the present federal
government is working actively to dismantle its trust reponsibilities,
which have their source in the Royal Proclamation 1763 and the treaties.
The new education policy in fact represents a major step in doing
away with the trust relationship. If it becomes possible to deny a
post-secondary education to some native people, a precendent is
established for eventually cutting off federal funding for all students.

Ottawa's rationale, derived from the Neilson report, is that provinces
receive substantial transfer payments for health, welfare and post-
secondary education as block funding under the Established Programs
Funding Act. Federal] estimates are that provinces cover from 80%
to 90% of the costs of post-secondary education out of these federal
transfers. At the same time, the traditional and current position of
provinces is that the federal government remains responsible for funding
100% of the costs for native post-secondary education. Ottawa's
position is that in carrying 100% of native education costs, it is

engaged in a form of double-funding. This dispute between Ottawa and

the provinces remains unresolved. In the interim, the federal

government has acted unilaterally to restrict and cap its allocation

for post-secondary education and, in effect, has passed the buck to

the provinces. In the meantime, it is native students who are being

squeezed and deprived of education opportunities.

A Smoke and Mirror Game

Federal assertions that budgetary allocation for post-secondary education

have increased significantly are blatantly false. For example:

(a)

(b)

(c)

(d)

(e)

Following the passage of Bill C-31, approximately 110,000
native people sought reinstatement under the Indian Act, and to-date
almost 50,000 have in fact been reinstated. A further backlog of around
45,000 are being processed (applications for the balance have been
rejected). The present budget, reported to be around 130 million,
therefore, is serving a total population (including Inuit) of around
427,000 plus of further possible population of over 40,000 once their
applications are processed during the balance of this year.

Bill C-31 has resulted in a significant and rapid increase of native
people who gain eligibility for federal programs and services. Much
of the C-31 population come from urban backgrounds and it is estimated
that 90% have indicated that they plan to send their children to
university o* college. Approximately 2.700 of the native students
now attending university gained their eligibility as a result of C-31.

In 1984-85 native students were receiving an average of close to
$9,000 per capita annually in post-secondary education. This included
tuition and course fees, travel allowance, rent subsidy, book fees,
allowance, day care, guidance and counselling, and other services.
The new policy has the effect of reducing per-capita costs for post-
secondary education to around $8,000. If inflation is taken into
account, the reduction is even more drastic. This difference in
educational support is illustrated graphically in the case of one of
the students who is currently on a hunger. strike. As a Single parent,
with four children, the effect of the new policy is to reduce educational]
Support for her by $245 per month.

In 1984, P MA Consulting Group did a study for the Department of Indian
Affairs, which was noted by the Neilson Task Force. The P M A Study
indicated that the university participation rate of native students
increased from 1% to 12% over 20 years. The national average is about
L0%. According to the consultants, a three fold increase in spending
levels is needed to increase native students enrollment and success
to the national average. In terms of 1984 dollars, the implication
is that the budget allocation for post-secondary education » ghould
be about $197 million (factoring in the C-31 population since 1984).

. (14

2 42 «

Summary

The effect of the new policy therefore is to:

(1) Cap appropriations for native post-secondary education and deny
increasing numbers of native students educational opportunities.
(So far this year, 240 university entrance students have been prevented
from attending university).

(ii) Reduce levels of assistance to individual students, making it difficult
or impossible for many to continue their education.

(iii) Establish criteria and controls on native career choices in order to
create "incentives" for native students to take courses favoured by
federal bureaucrats. The purpose seems to be to create natives in
the image of federal bureaucrats who can take over many of the functions
and values of the Department of Indian Affairs.

In adopting the new policy, Ottawa is attempting to achieve two purposes:

(i) Reduce federal costs by so structuring the policy that native students
will be compelled to seek other sources of funding (namely the
provinces).

(ii) Dismantle the federal trust responsibilities for mative people as
defined by the Guerin Decision and other court cases (this process
leads to the termination of aboriginal and treaty rights and ultimately,
to the extinction of an aboriginal identity).

4. The Issues of Fairness

Federal authorities insist that the federal policy is “fair” in relation
to the kind of assistance provided to the rest of the population in Canada.
The fact is that the aboriginal population in this country cannot be measured
in any equitable terms with other Canadians. The reality is as follows:

(a) The majority of native people are young, mostly because the longevity
of older generations has been affected by poor health services, bad
housing, third rate educational services, discrimination, and poverty -
all managed and maintained by an alien and distant federal bureaucracy.

(b) 50% of native people are under age 20 compared to 32% of the national
population. The native population is .increasing at twice the national
average.

(c) Only 20% of native people have completed high school - compared to
75% of other Canadians. 70% of the native population have less than

a high school education - compared to 45% in mainstream Canada.
38% of natives have less than grade 8 - compared to 20% for others.

These figures show graphically that any increase in university attendance
by native students should be viewed and supported as a light at what
has been a long and dark tunnel. Ottawa's policy is designed to
extinguish this light.

(d) Unemployment rates in most native communities average around 55% and
in some locales are as high as 90%. Native incomes are less than
two-thirds of the national average and are derived mostly from part-
time work and various forms of supplementary assistance. (Social
Assistance costs in 1986 exceeded $313 million.) The Neilson Task
Force noted in its commentary that among the native students who attended
university (whether they graduated or not) successful employment resulted
in more than 90% of the cases. It therefore seems to be strange
economic reasoning that would create barriers to post-secondary education
and leave native people unemployed and dependent on social assistance.

« #15

« 4B ow

(e). Dependency in lieu of education brings with it other costs in addition
to social assitance. Recent figures show that 70% of all admissions
to federal penitentiaries in the western provinces (where the majority
of aboriginal people live) are native. These figures also indicate
that 70% of the total native population can expect to go to jail by age
25 - compared to 8% of the general population. Other institutional
costs are just as high. For example, hospital admissions are 2 1/2
times higher than the national average. A cap on education costs
can only be translated in the end to much higher negative costs. There
are no savings for the taxpayer.

(f ) Almost 50% of native children require special education according to
provincial criteria because of the poor quality of elementary and
secondary education financed by the federal government. This figure
compares with 15% in the general population. Those native students
who rise above these handicaps clearly need continued to support if
they are to succeed.

Summary

Capping and cutting-back on native post-secondary education clearly is
a regressive and destructive measure that takes no account of the ‘social and
economic conditions in which native people live. Ottawa may be attempting to
demonstrate that it is penny wise, but time will quickly show that it is being
pound foolish.

5. Ottawa's Manipulation of the Consultative Process

It has been long established practice and some would argue, a legal
requirements, that Ottawa consults with native people before inaugurating any

major changes in policy. Prime Minister Trudeau reaffirmed this policy
following the debacle that accompanied his termination proposals in a “White
Paper" in 1969. Mr. Mulroney has made similar promises in First Ministers

conferences and on other occasions. .

The emergence of a new education policy clearly shows that the present
Prime Minister does not take his public pronouncements seriously. His
government went through a charade that was represented | as “consultation”
purely for public relations purposes. There was no intention of listening to

native views. For example

(a) The Assembly of First Nations received funding from the _ federal
government, beginning in 1984,to establish a "National Indian Education
Forum" which would review educational policy and provide a means for
transferring control of educational policy to native people. The AFN
was supposed to survey native views, and develop a position which the
government would take into account in formulating a new policy.

(b) There is clear evidence that the government had no intention whatsoever
of hearing what native people had to say about education policy and
practices. Minutes of a secret meeting of pcliticians and bureaucrats
dated January 19, 1988 were leaked in May of the same year. Under
the heading “Post-Secondary Institutions", there is a notation that
indicates policy decisions were being taken without reference to the AFN
consultation exercise or, to quote ". . . get decision by March, before
AFN report on Indian education".

(c) It was on March 20th, 1989 that the Minister released his announcement
about the new post-secondary policy. In taking this action, he
reduced the so-called AFN/Departmental process to something worse than
a confidence game. The new policy which the government is so
staunchly defending flies in the face of the recommendations that the
National Indian Education Forum was bringing forth. Departmental
officials are now explaining their pre-emptive action as "difficulties
over communication." This is part of their S.W.A.T. strategy of
"controlling the dialogue." The DIA is now proposing a consultation
process to talk about a policy that has been unilaterally imposed on
native people by the government - to see if it can be improved in some
respects. The tactic seems to offer the AFN another grant - to keep
them busy studying and consulting, and in the process, blunt any
prospect of massive native protest.

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The position of native people on education policy remains modest and

reasonable, namely:

(a)

(b)

Policy changes to Indian post-secondary education were developed in
secrecy in Ottawa board-rooms without reference to the work done by
the AFN or to the views of native students or native communities.

A moratorium therefore should be declared on the policy changes to permit
a proper consultation process to take place.

A moratorium will also permit a reference to the Supreme Court of Canada
to settle the issue on whether native education is an aboriginal and
treaty right. This iS a very serious issue which should not be a
matter for arbitrary and capricious decision by federal politicians
to serve their preoccupation with cost-cutting.

Any future consultation on post-secondary education should be so
structured that the process involves the students who are most directly
effected, as well as the predominantly youthful population of native
communities.

It is therefore proposed that a bilateral consultative process be
attempted which will permit a genuine joint review and formulation
of future education policy. The main elements in such a bilateral
process should be:

(i) An Aboriginal-Treaty Peoples' Commission which would include
two representatives from the federal government, four from the
aboriginal and treaty student body, and one from the Assembly
of First Nations.

(ii) The Commission would appoint an Executive Director and a cadre
of community workers who, under their direction, would prepare
an information package and presentation format as a basis for
involving native students and communities in education issues
and options.

(iii) The community workers would conduct a series of workshops with
aboriginal and treaty Students and with native people in the
communities. The purpose would be to inform and to compile
views, opinions and proposals.

(iv) The data brought back would be drafted into a comprehensive
report for review, and ratification by the Commission.

(v) The report would be submitted to the federal government = and
become the basis for developing a submission to the Cabinet
with recommendations and arguments based on the Commission's
findings.

(vi) Cabinet has the option of accepting, changing or rejecting the
Commission's recommendations. In the latter two cases, there
may have to be further bilateral! negotiations or clarification
between federal authorities and Commission representatives.

(vii) At the end of such a bilateral! process, the result would be an
education policy that is jointly formulated and supported.

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