BUFFALO JUMP 2.0
The Mulroney era Buffalo Jump policy of 19851 promised the elimination of the Indian Act, gradually doing away with Indian Affairs department, devolving responsibilities to other levels of government and to bands that would have been turned into self-governing ethnic municipalities. All that was required from band governments was to sign away their peoples’ rights in exchange for five-year block funding.
Fast forward to 2017 and the promise of a new nation-to-nation relationship between the Crown and First Nations that calls for the elimination of the Indian Act, gradually doing away with the Indigenous Services department, and devolving responsibilities to self-governing “nations,” all under the management of Crown-Indigenous Relations. All that is required of “nations” at the negotiating table is to sign away their peoples’ rights in exchange for ten-year block funding.2
The self-government process that Justin Trudeau announced in the summer of 2017 was supposed to be the way to make “our national journey of reconciliation a reality.”3 It looks more like Buffalo Jump 2.0.
The Mulroney Buffalo Jump policy, for instance, sought to download the responsibility for fixing all the problems on reserves to the local communities to solve for themselves.4 The Trudeau policy seeks to download to First Nations communities the responsibility for figuring out for themselves how to finally hold their own governments accountable to them.5
There are, however, significant differences between the Buffalo Jump of the 1980s and Buffalo Jump 2.0.
Recall that the Mulroney Buffalo Jump policy was primarily motivated by cost-cutting at IA to “contain the rapid escalation of future costs that would derive from leaving existing programs unchecked.”6 It called for a fresh approach “to deal with the growing needs and native aspirations for more local control while curtailing the unbridled growth of more ad hoc social policy programs.”7
The Trudeau effort, announced in 2017, called for significantly more spending on programs and services, promising “a new fiscal relationship will ensure sufficient funding,”8 and “will underpin progress toward the elimination of socio‐economic gaps between First Nations citizens and other Canadians.”9 It was backed up by new spending announcements in early 2018 of $4.8 billion for clean water, education, employment, children’s services, health and creating new Indigenous governance structures,10 followed by the announcement of $1.7 billion in spending on the Indigenous Early Learning and Child Care Framework.11
The new Indigenous Services minister, Jane Philpott, acknowledged at the time, “There is an incredible amount of important work ahead — work to be done in partnership with Indigenous peoples — to address the inequities and priorities of First Nations, Inuit and Métis Nation.”12
Unlike the Mulroney government, which in 1985 feared that spending on Indigenous programs and services by IA and its co-delivery partners would expand over the next five years from $2.4 billion to more than $5 billion by 1990, the Trudeau government seemed comfortable with continuing to expand Indigenous Affairs and its co-delivery partners (IA+), bumping spending to reach approximately $21 billion per year. 13
A major difference between Buffalo Jump 1.0 and Buffalo Jump 2.0 was the role of Aboriginal Representative Organizations (AROs). The Mulroney policy sought to rein in AROs, with an eye to giving ARO funding to the bands instead.14 It tasked the IA minister, in consultation with the Justice minister, to review whether funding selected Indian political groups constituted a possible contravention of the Charter of Rights.15 The Trudeau version, on the other hand, elevated one ARO, the Assembly of First Nations (AFN), to the status of a “nation” in its nation-to-nation negotiations.16 The AFN, despite not being the legitimate voice of ordinary First Nations people, was negotiating as if it, alone, had the authority to sit at the table in negotiating future FN governance with the Crown.
However, one of the biggest differences was the suggestion by Trudeau that his government might consider the possibility of replacing its policy of requiring extinguishment of Indigenous rights in exchange for modern treaty/self-government agreements.17 That is a very big maybe, and FN leaders were skeptical in the absence of information about what form this policy change might take.18 At the time of writing, the extinguishment policy was still in place.
With Indigenous Affairs divided into two departments, the federal government plan was to gradually devolve the responsibilities of the new Indigenous Services department to band governments (or to provincial and municipal governments) so that, in theory, sometime in the future the department would no longer be needed. However, the IA client base was growing. The number of Status Indians was predicted by IA to grow dramatically. In 2012, IA was predicting a 46 percent growth in the number of Status Indians in Canada over the twenty-five years from 2009 to 2034.19 It figured there would be more than 1.2 million Status Indians by 2034, with a growing number (56 percent) living off-reserve. IA attributed the growth projection, in part, to its creation of the new bands, and the continuing impact of changes in gender discrimination laws.20 Nonetheless, Indigenous Services was the department that is intended for elimination under the Buffalo Jump 2.0 policy.
The future planned for the Crown-Indigenous Relations (CIR) was quite different. It was set to grow dramatically as it expanded the modern treaty-making process to encompass all aspects of band governance and new governance institutions.
There were, in 2017, about 100 “negotiating tables” at which First Nations representatives were attempting to work out land claims and self-governance issues, some of which had been going on for decades.21 There was one practical reason for band governments to consider IA’s version of “self-government.” Instead of filling out a multitude of forms and waiting every year to find out what funding the band had, the funding would come in five-year blocks. And there would be no more Indian Act constraints to contend with. The same would be true for agreements after 2017, except with ten-year block funding.
However, as IA had learned in negotiating post-1975 treaties, the process of arriving at a negotiated “self-government” agreement was enormously complex. And it still is.
The alchemy of modern treaties
Here’s how the modern treaty process works. A band, or a group of First Nations bands, begins the work of developing an Agreement in Principle with IA bureaucrats. Arriving at this agreement can take a decade or so, depending on the issues in contention and the funding. (Indigenous Affairs had long been providing loans to band governments so they could pay the professional researchers, consultants and negotiators who would sit on the band’s side of the table. The consequence of this debt financing was that many bands could not abandon the process once it had started because they were too deeply in hock to IA.)
Arriving at an agreement involves parties on both sides of the table. On IA’s side is the implementation negotiator, along with IA regional staff from the province/territory where the band is located, and representatives from Other Government Departments (OGDs) who have a stake in the agreement.22 Once there is a serious chance of an agreement, the process gets kicked upstairs to the Main Table for the implementation planning phase. That’s when the real work begins.
It can take a long time for the two parties sitting on opposite sides of the table to iron out all the details of the implementation plan, but it is the “road map” that will govern the future of the newly “self-governing” band. That is why it is so important.
Once the implementation plan has been sorted, there is an even busier time ahead for government bureaucrats, who must make sure all the details are taken care of, including making sure all the Cabinet documents get signed off and Treasury Board and the Justice Department approve submissions for legal authorization and funding. This is all in aid of arriving at the “effective date” of implementation.23 The effective date is where it gets real, where the new rules that will change life in the FN community kick in.
In theory, after the agreement is signed and sealed and takes effect, it should be up to the community to make “self-government” work. In theory, the community is self-governed, with the officials of the Nation in control and making decisions for the community. But in reality, that is not what is happening.
Post 2017, Crown-Indigenous Relations (CIR, formerly IA) bureaucrats will have just begun a long and fruitful future for themselves.
Every agreement comes with a requirement for multiple boards to look after various responsibilities on the new nation’s land base, but mainly for resources, water and dispute resolution. It’s about the land, and control over what happens on the land, and the CIR minister has got his/her fingers in all of it.
Modern treaties signed after 1975 impact primarily the North, BC and Quebec. In 2015, there were nearly three dozen boards and panels created as part of the treaties for managing environmental impact and renewable resources, land use and water, and dispute resolution and arbitration.24 Of the 389 positions on those boards, 175 were appointed by the minister. It is worth noting that the minister appoints every single member of the boards mandated by the modern treaties that control water, surface rights, land planning, environmental assessment and other land-specific issues.25 (There are a couple of exceptions where the minister appoints the majority of the board but not all its members.)
As author Thomas King said in his best-selling The Inconvenient Indian, it is all about the land. “If you understand nothing else about the history of Indians in North America, you need to understand that the question that really matters most of all is the question of the land… Land contains the languages, the stories, and the histories of the people… And land is home.”26
It’s about what non-Indigenous people want, said King, and they want the land.27
Arthur Manuel, who had followed in his father George’s footsteps to become a widely respected Indigenous leader in his own right, said the same in The Reconciliation Manifesto, a book he completed just prior to his death in 2017. “The overriding objective in all of the government’s dealing with Indigenous people is to have continued, unfettered access and control over Indigenous lands. Today, they have armies of civil servants working on new schemes to get us to surrender our title and rights and whatever they come up with, they are certain to call it ‘reconciliation.’28
According to the department’s handbook for federal officials on implementing self-government agreements,29 once an agreement came into effect, there was much yet to be done in working out the kinks that were inevitable in applying the implementation plan in the real world, with real people. There would be tensions and misunderstandings in the new government-to-government relationships, and multiple boards with appointments for the minister to fill.
But even when “self-government” was implemented, CIR’s regional offices remained responsible for “day-to-day management and administration of fiscal arrangements,”30 retaining control of the day-to-day financial issues related to the new “nation.”
The financial part of the “self-government” agreement would have to be reviewed every five years.31 The overall implementation plan would have to be renegotiated every ten years. This is what CIR bureaucrats described as the “enduring phase.”32 The bureaucrats intended to remain involved for a long, long time. CIR recommended that bands begin the renewal process in year seven or eight to be sure there was enough time to complete the new implementation plan by year ten.33 The band government administrators would barely have time to take a deep breath after the financial review was over before they had to start prepping for the next implementation plan renewal.
CIR considered the renewal process as a new career path for bureaucrats. “Because the standard term for negotiated implementation plans is ten years, and five for financial documents, the renewal of these documents will undoubtedly be an expanding business line for implementation practitioners.”34
Critics of the modern treaty-making process called it an outright fraud. Mohawk policy analyst Russell Diabo condemned the negotiation tables as “termination tables,” since the objective is ultimately to terminate Indigenous rights, one band at a time.
“Self-government agreements,” said the Kahnawake activist, “will be manipulated to modify, convert and extinguish the inherent sovereignty of First Nations. More self-government agreements will be signed with bands formed under the Indian Act. The political effect will be to convert these bands into a kind of ethnic Indigenous municipality rather than self-determining nations. The Crown continues to set the parameters for how First Nations peoples are to live on their land, even once they opt out of the Indian Act.”35
AROs do not escape blame either. According to Arthur Manuel, the organizations had become useful tools of the federal government in its agenda of terminating Indigenous rights.
Government policy, he said, has penetrated right into BC reserve communities without band members understanding the insidious effect and how their participation may actually be hurting them. But some bands are financially on the hook.
“It sometimes seems that those who are negotiating cannot stop because they are dependent upon the money they get through treaty loans from the federal and provincial governments. But continuing at these termination tables is the single greatest injury that we inflict on ourselves and our future.”36
Ordinary Indigenous people, he said, cannot look to the Assembly of First Nations or the chiefs and councils to find a path out of the termination trap.
“This is complicated by the fact that our establishment organizations have disappeared so far down the path for our termination that it seems they can no longer find their way back to the grassroots and their needs.”37
Former Nuu-chah-nulth Tribal Council treaty manager Cliff Atleo, Jr. agreed with Manuel and Diabo that negotiation tables are more accurately called “termination tables.” After more than six years working on the BC treaty process — a separate category of treaty-making process that differs from the rest of the country — Atleo said he saw no evidence of a willingness to actually negotiate treaties or any sign of flexibility from provincial or federal government officials.
“They had, for all intents and purposes determined a formula for calculating ‘treaty’ agreements and applied that template everywhere. The governments have shown an unwavering desire to diminish Indigenous claims to land, water and rights as quickly and cheaply as possible.”38
There is no place for sovereignty or self-determination in IA’s version of “self-government.” There wasn’t in the 1990s with the failed Manitoba Framework Initiative, and there isn’t now.
While IA has delivered on the “self-governance” agenda for non-Treaty communities in the North, it has so far failed to make meaningful inroads into extinguishing Indigenous rights in Treaty areas, BC and the Maritimes. Recall that IA’s Buffalo Jump policy begun in the Mulroney era used the misery and suffering of ordinary First Nations people as leverage to advance modern treaties or “self-government.” It still does. The impact of the policy on the people themselves was well-articulated in 2012 by former BC regional chief for the Assembly of First Nations, Jody Wilson-Raybould:
“Far too many of our people are poor, dispossessed of their lands, uneducated, dependent upon state services and generally unhealthy…. Sadly, for a lot of our citizens there is still a sense of hopelessness. This sense of hopelessness can be overwhelming at times and is evidence of a far greater pathology that many of our citizens need to overcome — namely apathy, alienation, dependency and powerlessness….”39
The Buffalo Jump 1.0 policy exacerbated First Nation poverty and suffering and trapped bands into remaining in negotiations due the accumulated debt to IA. In the 2019 federal budget, the government announced that those loans, valued at over $1 billion,40 would be forgiven. However, an updated Buffalo Jump 2.0 that failed to address the root causes of poverty and suffering, even if it came with a great deal more money and loan forgiveness, was obviously not a solution.