INDIGENOUS AFFAIRS, POWER AND SECRECY
Most ordinary Canadians (Indigenous and non-Indigenous) have little idea of just how powerful the Indigenous Affairs (IA) department is within Canada’s national government. IA has jurisdictional reach over 90 percent of Canada’s landscape, as well as authorities that reach into every single federal department and agency. All of them. Splitting IA into Indigenous Services and Crown-Indigenous Relations does not change this power dynamic because it constitutes little more than putting some new labels on the same authorities.
IA’s mandate gives the department responsibility under the Indian Act of 1876 for managing the obligations in historic treaties and for negotiating modern treaties. The historic treaties, signed primarily in the 1800s and early 1900s, cover about 50 percent of Canada’s land mass.1 The modern treaties, signed after 1975, cover another 40 percent, primarily in the North.2 Only southern Quebec, a bit of Labrador and Newfoundland, and most of British Columbia remain outside IA’s mandate, with the exception of the portion of the 3 million hectares of reserve lands3 and 200 or so reserves that lie outside the historic and modern treaty areas.
As the push for self-government in the form of modern treaties has accelerated, IA has extended its reach into all government departments and agencies.
“Modern treaties are unique in the world,” states an IA 2014 training manual for federal officials on the modern treaty process, “…virtually every federal organization’s mandate will intersect with Aboriginal treaty rights at some point, from natural resource development to heritage to procurement.”4
The manual noted that “all departments and agencies have obligations” with respect to modern treaties and “all departmental activities, programs, policies and legislation must be developed and implemented in a manner that complies with modern treaty provisions.”5 (IA’s emphasis.) To ensure compliance, IA has taken the role of coordinating and guiding all federal departments and agencies in fulfilling treaty responsibilities. IA admits this intrusion into other departments’ jurisdiction “creates a horizontal management challenge for Canada.”6
The department is currently involved in implementing nearly 30 modern treaties, each of which creates hundreds of obligations for federal departments and agencies.7 New treaties in the form of self-government agreements will have impacts across federal government departments and across the country once they are negotiated and signed. They will affect Canadians just about everywhere. Yet ordinary Canadians — Indigenous and non-Indigenous — are not involved in this process. Since the implementation of the Indian Act in 1876, the federal government has shown little interest in involving Canadian society in working out policies that have legal, social and economic implications for the relationship between Indigenous and non-Indigenous people. The policy decisions continue to be made inside the bureaucratic bubble of Indigenous Affairs and its selected Aboriginal Representative Organizations, with ordinary Canadians — Indigenous and non-Indigenous — finding out about the deals being negotiated when they are completed and publicly announced.
And now, self-government/modern treaty issues are going to get even more complicated. The relationship between Canada’s Indigenous and non-Indigenous people was supposed to undergo a dramatic shift as the Trudeau government moved to deliver on its explicit goal of “accelerating a move to self-government and self-determination of Indigenous Peoples.”8 This included a suite of legislative changes that are intended to “de-colonize” the management of Indigenous issues and prepare the ground to eliminate the Indian Act.
The move to “accelerated self-government” could see the potential creation of somewhere between forty and eighty new self-governing nations, all negotiated on behalf of Canada by the staff of the IA governance programs, under the new Crown-Indigenous Relations portfolio. But how much trust should ordinary Canadians — Indigenous and non-Indigenous — have in IA’s ability to effectively deliver on such vast and far-reaching negotiations?
Let’s take a look at some recent efforts.
Newfoundland gets its second official band
When Newfoundland entered Confederation in 1949, Premier Joey Smallwood declared that no Indians lived on the island.9 There were, of course, Mi’kmaq people who had migrated there from the mainland over several centuries. They weren’t officially recognized by Indigenous Affairs until 1987 with the creation of the 2,500-member Miawpukek Reserve on the southern coast of the island.10 The Federation of Newfoundland Indians wanted to get the province’s other estimated 10,000 Mi’kmaq people registered under the Indian Act, and in 2006, began serious negotiations with IA for the creation of the Qalipu Mi’kmaq First Nation. (Qalipu means “caribou” and is pronounced ha-lee-boo.) Unlike the Miawpukek (Middle River) community, Qalipu was not going to have reserve land, but would have IA programs and services delivered through a central office in Corner Brook. When the landless band was officially announced in 2011, a call went out for band members. They would qualify for a Status card and all the benefits that come with it but without having to live on a reserve. More than 100,000 people applied, which threw the whole process into disarray.
In 2014, the Harper government had to rush a bill through Parliament to authorize changing the membership rules mid-stream and to give IA legal protection against the blowback.11 It just made an even bigger mess. By the summer of 2017, thwarted membership applicants had launched a class-action lawsuit, and neighbour had turned against neighbour.
“I think we need to give up on the idea of reconciliation with the government,” a bitter Kelly Anne Butler, a Mi’kmaq and Aboriginal Affairs officer at Memorial University’s Grenfell Campus, told a reporter.12 She had qualified for a Status card; her brother had not. The Mi’kmaq community, she added, would have been better off if the negotiations had never started.
For a government department that has had more than fifty years of experience in establishing new Indigenous bands and negotiating modern treaties and land claims, Indigenous Affairs was remarkably inept at rolling out the creation of the Qalipu FN. This was a fairly simple and straightforward deal to accept a known group of Newfoundland Mi’kmaq for registration under the Indian Act. However, IA should not have been taken by surprise at the rush for membership. It was, after all, offering incentives in the form of immediate benefits that come with a Status card, such as free supplemental health and dental care, selected tax breaks and the ability to live and work in the USA without a Green Card. And there was no requirement that anyone had to move from their condo in St. John’s or Ottawa to live on a reserve with boil-water orders and mouldy houses. Why wouldn’t lots of people apply, if they could see immediate financial benefits for themselves and their families?
A new Western nation for the Métis
The negotiations underway in 2018 for a new Métis Nation were not likely to catch IA negotiators off-guard. It has been in the works for nearly forty years.
In early 2017, the long-sought dream of creating a Métis Nation came tantalizingly closer to realization when the Indigenous Affairs minister and the president of the Manitoba Métis Federation (MMF) signed a Memorandum of Understanding to work out the negotiating strategy for nationhood.13
The MMF, which is the most powerful of the Métis political organizations in Canada, had nearly gotten its own nation in 1992. It was part of a secret deal with Prime Minister Brian Mulroney in exchange for Métis support of the Charlottetown Accord, after the Assembly of First Nations withdrew its support.14 The Métis Nation deal promised that the Métis would have their own legislature, equalization payments from Ottawa, control of membership and jurisdiction to enact legislation governing all Métis people in a new nation stretching west from Northwestern Ontario to British Columbia and north from Montana and North Dakota to the Northwest Territories. As the date of the 1992 referendum vote approached, the MMF negotiators struggled to hash out the details ahead of Mulroney’s promised announcement of the $10 billion Métis settlement.15
When the Charlottetown Accord went down to defeat in the October referendum, the Métis Accord was thought dead, too. But the MMF didn’t give up. It pushed the claim of nationhood to the Supreme Court of Canada, which delivered a favourable ruling in 2013.16 How many people would be citizens of this new nation? Maybe 600,000. Maybe only 60,000. The terms of the negotiations? Also unknown. The Memorandum of Understanding (MOU) between the MMF and Canada stated all discussions would be in camera and confidential.17 The groundwork for this self-governance agreement, just like the Métis Accord before it, was being negotiated in secret.
The negotiations between Indigenous Affairs and the Manitoba Métis Federation may have been all above board and scrupulously fair, but we don’t know that. Negotiations held in secret, especially those that involve a great deal of power and money, are too easily clouded by suspicion. We all understand human nature and how it can bend unwisely in the presence of such temptation. And it doesn’t help that the MMF, from its troubled early years after it was set up in 1969, had earned a reputation for its hard-edged brand of politics.18
The Riel rebellion annuity confusion
The resolution of a long-standing wrong against a Saskatchewan First Nation, dating back to the North-West Rebellion, seemed straightforward enough at the start. There was nothing secretive going on, but there were some surprising twists.
The treaties negotiated between the Crown and Indian bands from 1850 to 1929 all contained a single provision for empowerment of individuals within the band collective: the payment of an annuity to every man, woman and child in the band in perpetuity. Prime Minister John A. Macdonald ordered the $5 annuity payments revoked for fourteen bands located between Saskatoon and the Battlefords as punishment for their having allegedly aided the 1882 uprising led by Louis Riel. The annuity was reinstated in 1886, but in 2011, the Beardy’s & Okemasis band (Beardy’s for short) near Duck Lake filed a claim with the Indigenous Affairs Specific Claims Tribunal. The band’s chief wanted compensation for the $4,250 the band members had been wrongfully denied, and compensation for losses.
There was little evidence that people in the Beardy’s band had supported Riel’s rebels and thus violated treaty terms. The sticky issue was whether a claim about annuities — an individual right — could be heard by the tribunal, which was mandated to hear only claims about collective rights. The tribunal judge eventually ruled in 2012 that the annuity was both an individual and a collective right,19 heard the case, and awarded Beardy’s $4.5 million in compensation.20 The band council immediately established a trust for the money, and provided the roughly 300 individual band members with a one-time payment of $250 in March 2017. The band paid off the bank loan taken out to fund the claim and retained the rest to consolidate the band’s debts and remodel the band’s service station.21
The problem with this case is that it brought to the surface a conflict in First Nations communities that pitted the ephemeral individual rights against the might of collective rights. The chiefs and councils across Canada had largely ignored annuities over the past fifty years when they campaigned for modernization of health, education and economic development benefits for the collective. As long as the annuity was a piddling $4 or $5 (and it still is) being paid directly to individuals and hence not controlled by the band government, it was of little interest. The Beardy’s case opened the door for the collective to claim the annuity, but the chiefs and councils of treaty bands weren’t interested in going after the $5 annuities. They were claiming that the treaty annuity should have been modernized all along, and the Crown defaulted in not increasing the payments over time. This created a brand new source of claims against the Crown — compensation for annuity arrears.
By Indigenous Affairs’ own policy, annuities could not be paid to the band (the collective) because “the treaties stipulate that the annuity must be paid in cash to members on an individual and annual basis.”22 However, IA’s Tribunal on the Beardy’s case ruled that the “mechanics of payment does not alter the nature of the right”23 and found in favour of the collective.
Are annuities an individual right or a collective right? To clarify the issue, a spokesperson for Indigenous Affairs supplied this helpful response in the fall of 2017: “annuities are both a collective and individual rights issue.”24 With the current Indian Act silent on treaty annuities,25 it appears that IA and its tribunal are relying on the language of treaties directing annuity payments to individuals (individual right), and on IA’s policy that those individuals must be members of a treaty band to be eligible for the annuity (collective right).
Because ordinary First Nations people have no political voice at the federal level, there are no groups or organizations that they can count on to step up and defend the right of individuals to the annuity. There have been only government-funded organizations (AROs) that fight for collective rights. New legal actions being taken by chiefs and councils are signalling that ordinary men, women and children eligible for treaty annuities might well be on track to lose the sole individual right provided for them in the treaties.
Paying the piper
These three cases hardly cover Indigenous Affairs negotiators in glory, but there is more to be concerned about here than questionable negotiation skills. There’s that old saying: he who pays the piper calls the tune. In other words, whoever is providing the money gets to call the shots. So, let’s look again at the three examples to see who has been paying for what.
In the Qalipu Mi’kmaq First Nation negotiations, IA provided the Federation of Newfoundland Indians with funds so the small organization could hold up its end of the negotiations. But how much say did the Federation truly have in setting the terms and conditions for the new band, given the dramatic power imbalance between the two parties?
Regardless of how the Qalipu’s toxic membership dispute ultimately gets sorted out, the band is now one of the largest First Nation groups in Canada, funded by IA and its multitude of federal co-delivery partners to the tune of about $12 million a year.26 With that money, the Qalipu band, like all bands in Canada, is turned into an agent of Indigenous Affairs, with core funding from IA to staff the band office in Corner Brook and its three satellite offices. Their jobs are to deliver the multitude of programs and services from IA and other government departments to band members.
In the Métis Nation negotiations, there was no mystery about who was paying for what because it was spelled out in the MOU.27 Indigenous Affairs was paying for the MMF’s part of the negotiations, just as it had for the Federation of Newfoundland Indians. Unlike the tiny Newfoundland organization, however, the MMF had an annual budget of about $33 million in 2016. More than half was provided by IA and its co-delivery partners, and the rest came primarily from the Manitoba government.28 Indigenous Affairs had also been actively helping to build the Métis Nation by funding recruitment and registration, as well as funding both sides of the negotiations. In the fall of 2018, IA provided $40 million to the provincial organization “to help the MMF transition from a special-interest advocacy group into a self-governing Indigenous Nation, the details of which still have to be negotiated with Ottawa.”29
Who was calling the tune? Were the two parties actually in opposition or were they both on the same side of the table working out a chummy deal? Then you have to ask: who was representing the interests of Canada’s ordinary Métis people in these negotiations? The Métis Nation of Ontario, for instance, was furious about being shut out of the new Métis Nation because the Manitoba organization was drawing boundaries that excluded all the Métis in central Ontario,30 as well as in Quebec and the Maritimes.
The annuity claim by the Saskatchewan Beardy’s band seemed like a reasonable case for compensation, but small bands often cannot afford to take on the costs of making claims. Indigenous Affairs has a department just for that purpose. It gives bands up to $3.5 million to research and file claims against the Crown. Once a claim is filed, IA provides an interest-free loan and gets first dibs on any successful settlement award for repayment. The outstanding loans provided to bands in order to make claims against the Canadian government were nudging the $1 billion mark in 2017.31 The Beardy’s & Okemasis band, however, did not lean on IA to fund its claim before the Tribunal. It cost them $1.4 million in legal and research fees, which they covered with a loan from the Royal Bank of Canada and repaid out of the settlement money.
The financial conflict of interest is less of an issue in the Beardy’s case than the somewhat incestuous relationship between Indigenous Affairs and its agents (the five AROs and the FN band governments). The Specific Claims Tribunal was set up by IA and the Assembly of First Nations, and reports to the IA minister.32 When cases like the Beardy’s decision so clearly open the door to huge financial claims for annuity arrears by the same chiefs the AFN represents — and Indigenous Affairs is helpfully right at hand with buckets of cash and loans to get the claims rolling — it can raise questions about the seemingly limitless amount of money (and jobs) tied up in the claims.
We should not lose sight of the fact that all of this money being discussed is public money. Canadian taxpayers — Indigenous and non-Indigenous — are picking up the tab for both sides of the land claims and self-government negotiations, along with the settlements awarded as a result of those claims ($55.8 million in 2017).33
The lack of transparency around IA negotiations makes them vulnerable to suspicions about whether the people at the negotiating tables are acting in good faith. And it raises some legitimate questions about whose interests are really being served. We simply don’t know, and that’s a huge problem.
Deciding for themselves
In the aftermath of the surprise announcement in August 2017 that the Trudeau government was accelerating the move to self-governance as a means of reconciliation, former prime minister Paul Martin was adamant that whatever form of governance was going to be created, it had to be decided by Indigenous people themselves.
“It starts with the inherent right to self-government,” said Martin. “Then what you begin to deal with is how are they going to effect it, how are they going to do it? And this has to be their decision. One of the first things First Nations will have to decide is if it is 614 communities or is it going to be 50 or 60 nations. All the decisions that have to be made in this area are theirs to make.”34
If ordinary Indigenous people have no political power and no political voice at the federal level, it stands to reason that they will most certainly not be the ones deciding for themselves about reconciliation through self-governance and modern treaties. It will be Indigenous Affairs and the AROs and band representatives it funds that will be “negotiating” with each other.
In fact, the push for negotiations for self-government will mainly involve only one of the AROs, the Assembly of First Nations. The self-governance negotiations for the Inuit are largely signed off, complete with surrendering their rights to any further claims. And the Métis political leaders are focussing their energy on creating a Métis Nation that they will run. It is the future governance of nearly all the First Nations communities that is taking centre stage at the negotiation table, and there is no place at the table for the voices of ordinary Indigenous and non-Indigenous Canadians to be heard.
We are at a crucial turning point in the evolution of the relationship between Indigenous and non-Indigenous Canadians, and the scope of the self-governance negotiations has the potential to impact the lives of people all across the country. However, the impediment to change is more than the expansive powers of Indigenous Affairs, no matter how it rearranges the office furniture and changes the labels on the doors. It’s also about money.