Vol.
XVI, No. 1_____ _ Spring, 2005
ARTICLES
Michael Posluns,
" Equalization for First Nations: What Canada Could Do to
Welcome First Nations to the Table of Confederation."
Michael Posluns, "S-16:
Who Defines the Meaning of First Nations Self-Government?"
Patricia J. Vickers, "
Sagyt Küülm Goot: bringing our youth together (with
one heart)."
Equalization for First
Nations: What Canada Could Do to Welcome First Nations to the
Table of Confederation
Michael (Mickey) Posluns, Native Studies Program,
St. Thomas University, Fredericton, N.B., mposluns@stu.ca
The Red Sucker First Nation, a community located in an isolated
and remote area near Island Lake in northern Manitoba, has applied
to the Manitoba courts alleging both that the Crown has failed
to fulfill a principle promise in Treaty No. 5, that they were
assured, in their treaty, that they would be treated by the federal
government to a standard equal to that of Canadians generally,
since “the Queen treats all her children alike.”
This is only one part of an eight part constitutional question
which, in turn, forms part of a larger claim arising out of the
treatment of Redsucker First Nation at the hands of their supposed
fiduciaries, the Crown in right of Canada and the Crown in right
of Manitoba.
One of the constitutional questions raised in the Redsucker claim
is whether the Government of Canada has an obligation to provide
essential public services including social housing to Redsucker
(and, by inference to other First Nations) pursuant to s. 36 of
the Constitution Act, 1982.
Section 36 (comprising the whole of Part III of the Constitution
Act, 1982) provides
PART III
EQUALIZATION AND REGIONAL DISPARITIES
36. (1) Without altering the legislative authority of Parliament
or of the provincial legislatures, or the rights of any of them
with respect to the exercise of their legislative authority, Parliament
and the legislatures, together with the government of Canada and
the provincial governments, are committed to
(a) promoting equal opportunities for the well-being of Canadians;
(b) furthering the economic development to reduce disparity in
opportunities; and
(c) providing essential public services of reasonable quality
to all Canadians.
( 2) Parliament and the government of Canada are committed to
the principle of making equalization payments to ensure that provincial
governments have sufficient revenues to provide reasonably comparable
levels of public services at reasonably comparable levels of taxation.(19)
(note 1).
Section 36 (1) makes two kinds of commitments to Canadians in
poorer or more disadvantage regions: Subsection 36 promotes (a)
equal opportunity, (b) reduction in the disparity of opportunities
and (c) provision of public services of reasonable quality. Section
36 (2) is the constitutional guarantee of equalization.
Equalization is, in all likelihood, perhaps the most distinct
contribution Canada has made to the vocabulary of English (and
French) political discourse. As a formula for redistributing tax
dollars the mention of equalization invites a great deal of technical
discussion, almost all of which is well beyond my ken.
A more basic way of explaining equalization is that it is a
means for redistributing monies to the poorer regions of the country
aimed at providing governments of provinces in which the average
per capita income is below the national average the money those
governments would need to provide services “reasonably comparable
to those in other provinces, at reasonably comparable levels of
taxation” (note 2).
The most interesting and unique feature about equalization is
that “Equalization payments are unconditional – receiving
provinces are free to spend the funds on public services according
to their own priorities (note 3).
(emphasis added) In principle, if a “have-not province”
spent more money on liquor stores and less money on hospital beds,
school buildings or libraries, the complaints about such misallocation
of monies would properly be directed to the members of the provincial
legislative assemblies (often known as MLAs). Unlike grants-in-aid
of specific projects such as the federal share of the Trans Canada
Highway there would be no recourse to the federal government.
Although the first formal equalization program was introduced
in 1957, these latterday programs can be traced to the statutory
subsidies guaranteed to the poorer provinces at Confederation
in the Constitution Act, 1867. In 1937, the Rowell-Sirois Commission,
an inquiry set up by Prime Minister Mackenzie King had recommended
grants to equalize provincial tax revenues in order to ensure
provinces could provide basic services. In exchange, the federal
government took on the burden of collecting both federal and provincial
personal and corporate income taxes and succession duties.
In 1996, the Royal Commission on Aboriginal Peoples (RCAP) [i]
said that the equalization principle enunciated in section 36(2)
should “extend to the Aboriginal order of government as
well.” RCAP took note of the basic reality noted by many
commentators who have followed them that “the capacity of
Aboriginal governments to raise revenues through instruments such
as taxation is considerably less than that of non-Aboriginal governments
generally.
Much of this disability, from one end of Canada to the other,
arises in large part from the repeated failures of the federal
government to protect First Nations interests. Redsucker, for
instances, alleges that the transfer of lands within the boundaries
of Treaty 5 to the province of Manitoba in 1930 failed to consider
and protect the interests of Redsucker Lake First Nation.
In the groundbreaking 1984 Guerin decision, the Supreme Court
described the mismanagement of Musqueam lands as late as the 1950s
as “equitable fraud.” Redsucker alleges that the federal
and provincial governments made huge sums of money from the exploitation
of resources in the Treaty 5 area, none of which has been shared
with the First Nation.
It is not too much to suggest that the chief cause of poverty
amongst the First Nations in Canada has been the unshared exploitation
of resources by federal and provincial governments together with
repeated instances of equitable fraud by officials of those governments.
Equalization for First Nations would not excuse the monstrous
historic mismanagement of First Nations lands and resources by
Canada or the enormous greed and arrogance of the provinces that
sought control of agricultural lands and lands rich in minerals
while leaving First Nations on scrub, bush and marsh.
Equalization would, however, provide a financial basis for First
Nations self-government. It would also allow First Nations governments
to become fully responsible and accountable to their own citizenry
and free those governments of the excessive accounting requirements
imposed by Indian Affairs. (Successive Auditors Generals’
Reports, as far back as 1980, have described the accounting requirements
imposed on First Nations governments beyond anything required
of local non-Aboriginal governments as a needless drain on First
Nations resources.)
Because equalization is the outcome of protracted negotiations
between federal and provincial governments it has taken on a flexibility
that is not found in most other formulas for overcoming regional
disparities within large federated states. “If equalization
were extended to Aboriginal governments account would be taken
of both the fiscal capacity and the fiscal need of [First Nations
governments] – how much capacity they have to tax and how
much revenue they need to provide required services.
A handful of First Nations, primarily in Alberta with a couple
of British Columbia and Saskatchewan have considerable wealth
from oil and gas revenues. Some have sizeable agricultural lands
despite the best efforts of Ottawa and the provincial governments.
Many are as poor as typical third world countries. Since the goal
is to ensure services at the national average each would receive
the difference between their own capacities and the national average.
The federal Finance Department says that “Equalization ensures
that all provinces have access to revenues of al least $6,126
per resident to fund public services.”
Much of what keeps so many First Nations in third world conditions
is their inability to develop the infrastructure needed both for
higher living standards and to attract industry. Equalization
would allow First Nations to develop services while also leaving
them the freedom to establish their own priorities. Both RCAP
and the 1983 Penner Report on First Nations Self-Government noted
that 19th century colonial policies had often fragmented First
Nations into uneconomic units. Equalization would provide an incentive
for First Nations in each region to consider both with whom they
might want to consolidate and the terms of any local federation.
This is a particularly opportune time to revive these RCAP recommendations
for two reasons. First, Paul Martin’s Minister of Indian
Affairs, Andy Scott, has reintroduced a bill previously sponsored
by Chrétien’s last long term Indian Affairs Minister,
Bob Nault. This bill would establish a fiscal institutions regime
under which a panel appointed by the Minister would coach First
Nations governments on appropriate tax regimes for raising revenues
by leasing parts of their reserved lands to non-indigenous residents,
and commercial and industrial tenants. Although the government
describes this and many other proposals as “optional”
it is quite apparent that any First Nation which applies to Ottawa
for financial help with any kind of project will be assessed for
its capacity to contribute “own-source funds”.
The definition of “own-source funds” will be one
laid down in Ottawa. A First Nation would not, in fact, have the
option of taxing less in order to attract industry, for example,
or to tax more in order to increase revenues. Nothing in Nault-Scott
bill resonates with the kind of freedom enjoyed by provinces to
reflect their own values and to establish their own priorities
in their tax regimes.
Secondly, Ottawa has just concluded agreements with two of the
poorer provinces – Newfoundland (note
4) and Nova Scotia – both of whom have recently
acquired considerable wealth in the form of offshore oil and gas
(note 5). After the requisite
histrionics from federal and provincial politicians, a deal was
struck in January under which both Newfoundland and Nova Scotia
would continue to receive equalization for at least the first
eight years in which oil and gas revenues were making them “have”
provinces.
This point deserves special consideration. Ontario’s Premier,
Dalton McGuinty, was heard loudly complaining that his traditionally
wealthy province should not have to continue to contribute to
Newfoundland and Nova Scotia once they cease to be “have-not”.
This possibility was, in fact, contemplated when it was first
agreed to allow the provinces to take control of offshore mineral
wealth. The Canada-Newfound Atlantic Accord stated, in 1987, that
“the two governments recognize that there should not be
a dollar for dollar loss of equalization payments as a result
of offshore revenues flowing to the Province.”
McGuinty’s outcry against allowing Newfoundland and Nova
Scotia a catch-up period before they are required to give up any
claim to equalization was not taken up by many other political
leaders across Canada. On the contrary, most people took for granted
that Nova Scotia and Newfoundland would need some period of time
before the benefits of their newfound wealth takes firm hold in
the daily lives of their citizens and the income tax returns those
people are able to file.
The principle of a catch-up period also has a place in the Canadian
Charter of Rights and Freedoms. Section 15, after first prohibiting
“discrimination based on race, national or ethnic origin,
color, religion, sex, age, or mental or physical disability”
goes on to provide, in subsection 2 that nothing in the non-discrimination
provisions of 15(1) “does not prelude any law, program or
activity that has as its object the amelioration of conditions
of disadvantaged individuals or groups.” In short, Canada,
unlike the United States, has a constitutional entrenchment of
affirmative action.
Equalization has often been said to be a very Canadian kind
of institution. It ensures that every province is able to provide
a basic standard of services while not putting the otherwise have-not
provinces in the position of having to come to Ottawa begging
for basic resources.
So we need to ask whether the historic exclusion of First Nations
from the benefits of equalization is also a very Canadian kind
of institution. The more so, when we observe how many First Nations
have been pushed aside, once the better part of their lands were
surrendered, and while every effort was made to assimilate their
people, little or no effort has been made to bring those nations
to the table of Confederation.
120 years ago, when St. Catharine’s’ Milling
wanted to know whether they needed a provincial or a federal permit
to cut timber on lands recently surrendered by the Saulteaux Ojibway
of Treaty 3, Mr. Justice Samuel Strong wrote a lone dissent in
the Supreme Court. Strong observed that the surrendered lands
had to stay in federal hands if the promises made in the treaty
were ever to be fulfilled. He observed that it was most unlikely
that Parliament would ever vote the monies needed to honor Treaty
3. Putting the royalties from resources exploitation into a trust
was the one realistic way in which the treaty obligations might
be honored.
Reading the grievances of Treaty 5, across the Manitoba line
from Treaty 3, suggests that excluding First Nations from the
benefits of Confederation may indeed be a Canadian institution.
One small step away from that institution would be to stop including
First Nations tax figures as part of the overall tax figures of
the surrounding province. All provinces have an interest in “playing
poor” when their tax revenues are calculated for purposes
of equalization. The rich pay less and the poor gain more. The
result is that the very provinces that see themselves having nothing
to gain by taking over programs and services to First Nations
are quite keen to absorb the poverty of First Nations (at least
on paper) for purposes of benefiting their own position in the
next round of equalization.
The Official Opposition in Parliament has long played the game
of embarrassing the government by identifying the waste and mismanagement
in First Nations communities. Interestingly, neither the news
media nor the Official Opposition pursue the observations of the
Auditor General about how little of the money appropriated by
Parliament ever reaches First Nations and how excessive are the
demands for accounting.
Equalization for First Nations would be the surest and most
certain sign that Canada was ready to welcome First Nations at
the table of Confederation. First Nations governments would become
much more accountable to their own citizens when they are freed
from the shackles of excessive accounting to the federal minister.
Once First Nations were engaged in calculating their position
relative to the national average, their figures would no longer
be subject to appropriation (both intellectually and financially)
by the provinces.
Equalization is an alternative to keeping First Nations in the
position of perpetual supplicant, having to justify each prefab
house and every health measure delivered to their people. Most
important of all, the vast number of First Nations living at third
world levels in Canada could, under terms similar to those recently
agreed upon for Newfoundland and Nova Scotia, begin to move toward
the Canadian norms for public and social services.
FOOTNOTES
1. Department of Finance Canada, “Federal Transfers, Equalization
Program, “What is Equalization” www.fin.gc.ca/FEDPROV/eqpe.html.
2. Ibid.
3. Georges Erasmus and Justice René Dussault, Seven Generations,
Report of the Royal Commission on Aboriginal Peoples, published
on CD-ROM by Libraxus, Ottawa, 1997.
4. Properly called “Newfoundland and Labrador”.
5. Under Trudeau’s Canada Lands Act in the 1980s, off shore
lands were classed as “Canada Lands” and the mineral
wealth on or under those lands was declared federal. Later parliaments
repealed the Canada Lands Act and agreements were negotiated for
provinces to become the beneficiaries of the offshore oil and
gas
S-16: Who Defines the
Meaning of First Nations Self-Government?
Michael (Mickey) Posluns, Ph.D. St. Thomas
University in Fredericton, New Brunswick
The purpose of Bill S-16 of the current session of the Canadian
Parliament is to set out a formula by which Canada would recognize
those first nations that drafted and adopted a constitution that
met with certain minimal requirements. S-16 was introduced by
Sen. Gerrry St. Germain, a Conservative from British Columbia
who has Métis roots in Manitoba.
The Senate Committee on Aboriginal Peoples began to hold hearings
on S-16 on May 3. The course of the first day’s hearings
served to demonstrate that the Indian Affairs Branch continues
to be haunted by the attitudes of colonialism and paternalism
that have characterized its operations since Confederation and
before.
Sadly, Sen. St. Germain was a few minutes late. The chairman,
Sen. Nick G. Sibbeston, used the opportunity of St. Germain’s
delay to invite two Indian Affairs witnesses to take the floor
while the committee awaited the sponsor’s arrival. In the
sponsor’s absence, at the point when might normally be setting
the stage for his bill by reviewing the bill’s overall structure
in terms of the bill’s purpose, senior officials from Indian
Affairs were able to take control of the proceedings and set the
stage for viewing this bill as an unconstitutional adventure that
would foster division within Confederation and work against the
well being of First Nations and other Aboriginal peoples in Canada.
The two government witnesses were Maureen McPhee, and Allan Cracower.
McPhee and Cracower followed a classic move of Indian Affairs
officials testifying before parliamentary committees: they defined
the terms by which the bill would be understood. Even their titles
announce that their job is to control the discourse on First Nations
self-government. McPhee is the Director General, Self Government
Branch, Indian and Northern Affairs Canada. Cracower was billed
as Counsel, Indian and Northern Affairs Comprehensive Claims,
and Northern Affairs Self-Government and Strategic Direction,
Department of Justice Canada.
The idea of two senior officials from Indian Affairs with titles
suggesting that they are in a position to define the nature of
First Nations self-government ought to be sufficient to set alarms
ringing. If self-government meant, within the discourse of First
Nations autonomy what it means in any other political discourse
the insult embedded in the idea of the Canadian government defining
what constitutes First Nations self-government would be obvious
even to the novices on a Senate Committee on Aboriginal Peoples.
At the end of their testimony, however, they were each unable
to furnish the Senators with anything in writing, neither a policy
statement nor a legal opinion. The closest thing to anything in
writing is whatever the Hansard clerks took down from their oral
testimony.
McPhee began her remarks by saying that DIAND “has been
an ardent supporter of identifying and developing new approaches
that can facilitate and promote self-government.” Historically,
DIAND was created for the explicit purpose of displacing the self-governing
institutions of First Nations. In recent years, DIAND ministers
have spoken in favor of self-government so long as they are the
ones who define both the scope of First Nations’ autonomy
and the nature and structure of First Nations political institutions.
For example, former Minister of Indian Affairs Bob Nault introduced
four bills in 2002-3 including a First Nations Governance Act,
a First Nations Fiscal Institutions Act and a Specific Claims
Act, which would have defined the nature of First Nations institutions,
the scope of First Nations taxation powers on leased lands, and
establishing a board appointed by the federal minister which would
oversee the financial and fiscal policies of all First Nations
governments in Canada. It would be an interesting Political Science
101 exercise to compare band powers under the present Indian Act
with the powers under Nault’s C-7 with a view to determining
whether there was a net gain or a net loss.
To claim that DIAND has been an ardent supporter of self-government
flies in the face of the entire history of DIAND and of successive
parliamentary and public inquiries have stressed that Indian Affairs.
A Special Commons Committee on Indian First Nations Self-Government
(Penner) in 1983, a Royal Commission on Aboriginal Peoples in
1996 and a Senate Committee Report in 2000 all concluded that
DIAND has historically been so much a part of the problem that
it can not now become the government’s key to a solution.
Indian Affairs officials, however, have been eager to reinvent
their own department in an effort to contradict the conclusions
of every known independent inquiry. Indeed, their determination
to dominate proceedings, as exemplified by McPhee’s co-option
of the Senate Committee goes to the very heart of the problem.
Describing a government department as “an ardent supporter
of identifying and developing new approaches” is curious
on a number of grounds. If a government department (or a corporation)
were capable of emotions we would still need to ask whether ardor
would be one that would head a list.
If federal officials were to genuinely support First Nations
self-government, the first evidence of good faith on their part
would be an adoption of a no-policy, i.e., DIAND would cease to
adopt policies which they believed to be in the interests of First
Nations beyond supporting First Nations capacity to make such
decisions for themselves.
McPhee said that “the number of self-governing Aboriginal
groups continues to grow.” She carefully avoided the term
“First Nations” while adopting the view that each
bill ratifying a land claim and self-government agreement in recent
years has, in fact, constituted a self-governing First Nation.
A careful look at the bills ratifying agreements between Canada
and such First Nations as the Tlicho or Westbank quickly demonstrates
that the capacity of these communities to govern themselves is
confined to measures that are consistent with the policies of
the province surrounding them as well as with any relevant federal
law. In short, the “self-government” granted (not
recognized) under these agreements is conditional upon the polices
of those First Nations governments conforming to both federal
and provincial law.
Having said that S-16 was, in principle, “a part of the
solution” (as though Indian Affairs were in a position to
say just what the solution might be when they have historically
been so much a part of the problem), Ms. McPHee proceeded to challenge
the constitutionality of the bill and to suggest that the bill
stood to threaten First Nations relations with the provinces.
McPhee went on to say that “although the department agrees
with the overall goal of the bill, we believe that First Nations,
provincial and territorial governments, as well as the general
public should have an opportunity to have meaningful input”
into this bill.” No one asked why the departments own recent
bills had been rammed through Parliament with indecent haste.
Or why First Nations self-government – a concept First Nations
leaders and elders say is implicit in the recognition and affirmation
of Aboriginal and treaty rights in s. 35 of the Constitution Act,
1982 – should require either provincial approval or the
input from the general public. Even those provinces and municipalities
which rake in money by admitting students from neighboring First
Nations (reserve) communities do not reciprocate that kind of
input.
More surprising was McPhee’s contention that First Nations
jurisdiction over off-reserve education “is not consistent
with the Constitution.” This is not the place to argue the
subtleties of the Canadian Constitution. However, in the list
of exclusively federal powers is section 91(24) “Indians
and lands reserved for the Indians.” The Government has,
when it was convenient read these two provisions –(1) Indians
and (2) lands reserved -- as though they were one. I think Ms.
McPhee would be hard pressed to find a legal scholar not in the
pay of the federal government who would agree with her view, or
the government’s view of ss. 91(24). Indeed, the federal
government has long provided some health benefits to persons living
off reserve. And, the current practice in respect to post-secondary
education is for the government to give funds to First Nations
communities to allocate in support of their members attending
universities or colleges, clearly a move to support off-reserve
education when it is convenient.
The real crux of DIAND’s concern is that under bill S-16,
“a First Nation can designate territory it acquires as Aboriginal
lands.” In other words, if a reserve acquires money and
then uses the money to buy lands it can declare those lands to
be part of their reserved lands and, therefore, not subject to
provincial taxation. Most of the lands a First Nation is likely
to acquire would be the result of land claims negotiations. In
other words, they would be getting back lands that were rightfully
theirs all along. Why is the department that supposedly is the
lead federal agency in respect to the federal fiduciary duty to
First Nations be more concerned about the loss of revenue to provincial
treasuries than the reduction of poverty in First Nations communities?
Much was made of the Canada-Aboriginal Roundtable, a phenomenon
that I will explore further in another article. What is critical
here is that these round tables involve multiple federal departments
negotiating concurrently with Inuit, Métis and First Nations
leaders. The trouble is that for the most part, especially outside
the northern territories (Nunavut, North West Territories and
Yukon) it is only First Nations that have treaties with the Crown
in right of Canada. While these round tables foster an illusion
of federal good will when they occur on television, the First
Nations leaders see them as a means for diluting treaty obligations
by focusing on federal government priorities. Once again the federal
government sets the agenda and decides which policies will be
pursued by supposedly self-governing First Nations.
Cracower began by commending “Sen. St. Germain and others
for this important initiative,” surely an indication that
Mr. Cracower’s view of the Constitution does not have him,
as a public servant and a lawyer in the federal Justus Department
answering to a parliamentary committee. Cracower then urged that
such an important matter “should be realized in a legally
sound and practical way.” Civil servants in Canada who view
themselves as “the permanent government” see the Parliament
of Canada and its committees as needing to be brought into line
with what is practical.
Sen. St. Germain, who had just arrived, observed that he wished
that he might have received written submissions from the witnesses
in advance. By the end of the proceedings it would become clear
that they were not about to provide written materials either before
or after. Indeed, the sole basis for Cracower’s legal opinions
is that (a) his say-so and (b) the convenience of his opinions
to the interests and viewpoints of his client, the Minister of
Indian Affairs and Northern Development.
St. Germain pointed out that his bill had been drafted by a committee
of Aboriginal scholars, teachers, elders and leaders and that
“Aboriginal nations themselves have asked us to do this.”
Both we and the Aboriginal people are looking for a way of not
spending 10 years in negotiations. … The Aboriginal First
Nations that are seeking this type of enabling legislation have
an established land base, a fact that the paternalistic attitude
of government does not recognize.
He pointed out that he was carrying on a work that had been initiated
by the late Sen. Walter Twinn.
I do not believe that there is a quick fix to this problem, but
I do believe that there should be some form of legislation in
place that would allow those who are in a position to take advantage
of the legislation to have a vehicle that will allow them get
on with their lives.
St. Germain pointed to hearings on economic development in which
Prof. Stephen Cornell from the Harvard Project had observed that
genuine self-government had been found to be a consistent prerequisite
to economic development. Holding up self-government until communities
become self-supporting inhibits economic development, it does
not foster it.
St. Germain made the tactical effort of asking Ms McPhee “How
do we expedite this without going through a seven-year study followed
by a seven year evaluation?” Predictably, she assured the
committee, “I do not think we need a seven year study.”
Instead, she proposed “expediting self-government at the
sectorial negotiation session of the round table process,”
something that sounds close to a seven year process from where
I am sitting.
Most revealing was her next statement, “That was an opportunity
for participation by all Aboriginal groups to discuss.”
The essence of bill S-16 is that each First Nation that succeeds
in writing its own constitution, providing that constitution meets
certain minimal requirements will be recognized by Canada. The
essence of Prime Minister Martin’s Round Table process is,
as McPhee observed, to provide a forum in which “all Aboriginal
groups” might discuss. Why exactly the Nisga’a on
the west coast or the Inuit in the High Arctic should need to
agree to a constitution or a land claim for the Mi’kmaq
of Nova Scotia is not at all clear, unless, of course, the goal
is to delay decisions making for seven years or more as Sen. St.
Germain feared.
Sen. Charlie Watt, an Inuit Senator from northern Quebec challenged
McPhee’s assertion that the bill is unconstitutional. He
reminded her that s.35, the section that “recognizes and
affirms the existing Aboriginal and treaty rights of the Aboriginal
peoples of Canada” is not a part of the Canadian Charter
of Rights and Freedoms. Watt was, however, concerned that S-16
is not “the way to develop harmony between Aboriginals and
non-Aboriginals.” He noted that “the system is structured
[so as to] create a power struggle between the federal, provincial
and territorial governments.” However, he did want to see
Aboriginal governments being able to propose laws to which others
would be obliged to respond within 60 days or some other limited
time.
Cracower latched on to Watt’s concerns and emphasized that,
as a lawyer his “focus is, of course, on the law and not
on policy.” He then went on to make the case for provincial
participation in developing First Nations self-government, but,
at the end of his speech he was not able to agree to provide any
kind of written material in support of the analysis he had just
offered.
This is a line that Justus lawyers have followed for many, many
years. If an Indian organization becomes sophisticated enough
to offer a legal opinion of their own, or, in certain cases where
parliamentary committees have their own legal counsel, the Justice
Department will offer a verbal opinion contrary to that of a First
Nation or of counsel for a parliamentary committee. What they
will not do is to offer a reasoned opinion complete with references.
At the end of the first day’s hearing the chairman, Sen.
Nick Sibbeston, tried to have something for everybody. He asked
Ms. McPhee if the department might not prepare a comparison of
C-7, the department’s bill on First Nations Governance of
two sessions previous and S-16.
Why, exactly, he would not have asked for such a comparison from
the parliamentary library staff whose job it is to provide support
for parliamentary committees remains a mystery.
There was, at the end of the day, no mention of further meetings.
The way in which the Chairman handed the proceedings on S-16,
a private senator’s bill over to two government officials
took me back to a joint committee studying a land claim petition
from the Interior Tribes in 1927. The Minister of Indian Affairs
came to the first hearing and asked to speak first. Neither petitioner,
Andrew Paull, the leader of the Interior Tribes or his lawyer
ever got to speak, or to call their own witnesses or in any way
to make their case. The chairman, who was, in fact, the Speaker
of the Senate, turned normal procedure on its head, and allowed
the minister to make a lengthy statement about all the wonderful
work being done by his department for the poor Indians while the
Indians who had brought their petition to Parliament were never
heard.
The ultimate outcome of that committee was an amendment to the
Indian Act, s. 149A, making it an offence to raise funds for the
purpose of pressing land claims.
Granted the comparison is very limited: the Chairman of this
committee simply wanted to be efficient in the use of time by
having witnesses who were present to speak first and others to
speak later. Whether the comparison holds beyond that remains
to be seen.
One can only hope that the sponsor of S-16, Sen. St. Germain,
and any friends he has in the various corners of the Senate, will
press for a schedule of hearings from interested First Nations
leaders, elders, and teachers as well as from legal scholars and
policy studies scholars. One could also hope that interested policy
and legal scholars will take an interest in this bill as an alternative
to the neocolonial bills put forward by the department in 2002
and 2003.
Michael (Mickey) Posluns, Ph.D. is an associate professor in
the Native Studies Programme at St. Thomas University in Fredericton,
New Brunswick. He can be reached at: mposluns@stu.ca.
Sagyt Küülm
Goot: bringing our youth together (with one heart)
Patricia J. Vickers, pjune@islandnet.com
BACKGROUND
This report is the
summary of visits to the Haida, Tsimshian and Nisga’a communities
in the northwest region of British Columbia in preparation for
the Inter-nation Youth Forum and Round Table discussion, May 4th,
5th and 6th 2005 in Prince Rupert. Participants
in the one-day community sessions included youth from the ages
of 13 to 27, Front-line Workers, and concerned community members
including parents and elders.
“The Northwest Aboriginal
Youth Suicide Prevention and Community Healing Project” is a joint
project of the Child and Youth Officer for B.C. and the First
Nations Summit Society.
COMMUNITY VISITS
The participating
communities in the Northwest region included the Nisga’a communities
in the Nass Valley, Kitselas and Kitsumkalum, Prince Rupert through
Planet Youth, Massett, and Lax Kw'alaams. Both Hartley Bay and Gitxaala
withdrew from the community visits and Metlakatla had a “now show”
from either the youth or community members on a Sunday and the
beginning of seaweed gathering.
The format of the
community visits included two components: an information session
in the morning that was open to all concerned community members
and an art activity for the youth and young adults in the afternoon.
In some cases, the adults were theFront-line Workers who remained
to participate in the activity and debrief at the end of the session
as a part of the group.
Theoretical Foundation
The
theoretical foundation for the information sessions includes traditional
northwest coast beliefs concerning ‘soul loss’ and Rogerian, Eriksonian,
and Gestalt methodologies.
In “soul loss” teachings,
trauma (i.e.: alcoholism creating absence as a caregiver, physical
violence, sexual acts toward a child or minor, rage that discounts
the emotional and mental impact on the child etc.) creates the
fragmentation of the individual’s soul and a part of the individual
remains trapped or frozen at the physical location where the event
occurred.
Rogerian therapy
is a client-centered approach rather than method/agenda-centered,
Eriksonian therapy considers the environmental impact on the psycho-social
development of the child, Gestalt approach considers the inter-connectedness
of all factors impacting an individual’s life choices.
Ayaawx
Loomsk (respect)
is identified as the heart of the Ayaawx (ancestral law). Cultural
teaching identifies gatgyet (personal strength/power) as
something we are born with and it is the responsibility of the
parents, grandparents, aunts, uncles and community to assist the
child in growing into and increasing their power in a good way.
Cultural oppression
through education, religion, socialization and legislation interrupted
the generational cycle of looking to the Ayaawx as a viable resource
to resolve personal, political and inter-nation conflict. The
history of oppression is the major contributing factor to the
anguish and suffering that is common in First Nations families
today.
Information Session
In each community
there was an elder identified to give a personal account of their
experience or a sibling’s experience in residential school. The
elder was also a resource for the Ayaawx and Sm’algyax. Following
the elder’s story, the content of the information depended upon
the ages and background of the group participants. Psychotherapeutic
information was provided in conjunction with personal examples
of family violence, abuse, abandonment and neglect. Information
for self-assessment generally included:
1. Defense
Mechanisms and their purpose
2.
Addictions as an escape from an intolerable reality
3.
Reality: physical, sexual, emotional, spiritual, mental
4.
Emotions as guides: pain, fear, joy, loneliness, guilt, anger
& shame
5.
Generational patterns: cultural conditioning and residential school
6.
Codependence
7.
Virginia
Satir’s Communication Systems: Open & Closed
Dialogue was welcomed
throughout the presentation of both personal examples and theoretical
information. With the exception of one Community,
both youth, Front-line Workers and community members asked questions
and made comments on the information presented without any prompting.
Art
Activity
The theme of the art project was to visually create a representation of the
individual's journey, both the joyful experiences and the times
of pain. It was also used as a tool to express the many
feelings that were brought up during the information session.
This is a client-centered approach.
A wide variety of materials were made available. This included
the use of a digital camera to print pictures as they worked,
as well as paints, fabric, calligraphy lettering, markers, feathers, colored
papers, etc. During the art activity, the youth were encouraged to
share the meaning behind the images. Depending on the community
and the trust level that was developed, individuals shared their
pieces in front of the group.
A True Story
(from one of the participants who requested anonymity):
My earliest childhood memory began
when I was two. I didn’t remember that until recently. My relatives,
parents and grandparents were all drinking. My family at that
time lived at one of the canneries. My next childhood memory
was when I was 7. My mother said that I would have to look after
my younger siblings and I had three at that time. My mother was
going out after my father-- he had left and was gone for quite
a long time. My youngest sibling was only a newborn, a few weeks
old. I remember telling her that I didn’t want to watch the baby
and she told me there was no one else and that I had to. I remember
crying. She told me how to fix his bottle and change his pamper.
The last thing she said was that I had to stay happy and that
if I stayed happy, the baby would be happy. They weren’t home
for a number of days. The Landlord kept coming to see if my mother
was home and I had to tell her that she would be home soon because
that’s what my mother told me. The Landlord came downstairs several
times and the last time she came down she had a social worker.
We were in the foster home for a few days. Those few days at
the foster home I really enjoyed because I could just play. I
remember the foster parents were really surprised at what I knew
of my family because I knew dates of births and everything. We
moved from Terrace back to the village and the cycle continued.
Once in a while I would have to look after my siblings and occasionally
we were taken care of by babysitters but even they would leave.
Living in the
village at about 20 years old, I was at a point in my life where
I didn’t know where to go. Drinking was a normal way of life
and I was there to make it look like everything was o.k. I remember
at this time, traveling down with the Dance Group and meeting
my wife. The first time she held my hand, I started to cry.
One of the memories of being molested by a babysitter came back
to me.
Understanding
of childhood abuse memories and their impact on my adult behavior
started to come. My girlfriend began to pack our clothes and
put them into garbage bags. Even though I didn’t want to leave,
because I was in love with her I left. It felt like I was angry
at my relatives for drinking and with my siblings for drinking
as well. Eventually her grandmother took us in. Since that time
I’ve had a great flow of my childhood memories that are very painful:
things that I’ve witnessed and experienced. It seemed like no
one cared except for my girlfriend and for the first time I felt
like I could cry a real cry and laugh a real laugh. Until finding
love in my girlfriend and her family, I had been numb.
I found employment
but all of my memories really hurt and I was very sad. I walked
across the bridge every day. My parents had split up and the
role I had in my family as the caretaker was no longer practiced
and I guess I felt lost. One day I stood on the bridge wanting
to jump and someone honked and waved at me and pulled me out of
it. I had thoughts of wanting to be run over and then another
person from their vehicle would wave at me. While working in
the town, I remembered my uncle telling me that I needed to go
to a treatment center. Eventually I went to a counselor and started
talking about my past and memories and she helped to bring out
a side of me that wasn’t so angry. Eventually I went to Round
Lake Treatment Centre and it was difficult because I wasn’t an
alcoholic or drug user but it was then I realized I was exactly
like my relatives without using drugs or alcohol.
I learned that
I had to take care of myself and let go of the need to take care
of my parents and siblings. My brother committed suicide two
days after his 20th birthday. It wasn’t until I saw
his body with the rope burn around his neck that I accepted he
was dead. I didn’t see him much when we became adults, I left
home when he was 16 and it was like I was his parent. He had
just started drinking and I was very angry with him for choosing
to drink. I thought my parents encouraged him to drink by allowing
him to drink with them. I spoke to him about drinking, expressing
my disappointment to him and he said he wouldn’t do it again.
He wanted my parents to be there at his soccer games but they
never did go to watch him. My parents were numb at his funeral
and I was crying and felt a great deal of pain.
In going to treatment
I realized there was a great breakdown as a family. We were individuals
living together. I realized that my parents were raised in the
same way we were—left to fend for ourselves. I couldn’t be mad
at my parents any more and had to come around to accept them as
they are. Go and visit them from time to time. Bring my children
around them. My children bring out the better side in them.
My mother has been to a treatment center and still struggles with
her past. My father continues to drink.
Right now I am
working as a language teacher in my home community. I see that
my Dad needs family right now and he needs to feel loved. I spend
time with him and he’ll say to me “I really like it that you’re
spending time with me right now.” He’s started to talk about
my brother and he’s slowly opening up. My mother wants to meet
regularly with the family and she is more involved with us right
now, especially the grandchildren.
INFORMATION GATHERED
Participants including
youth, Front-line Workers, elders and community members were eager
to discuss their experience with Youth Services, Mental Health
Services, and general community support programs. The information
gathered from the youth, Front-line Workers, elders and community
members has been grouped into four common areas:
1. The way
it is
2.
What I want
3.
What I like
4.
What is needed
These areas emerged
in discussion and in response to the questionnaire as a guide.
The questionnaire was used in Prince Rupert and Aiyansh but in
the remaining communities discussions provided sufficient information
to record without questioning.
1. The
way it is
The
youth
“In and out of foster
care.” -- “Drinking,
yelling & fighting.” --“Don’t
get along.” -- “Being in foster homes.” --“Runaway
siblings.” -- “Drinking in home.” -- “A lot of youth have nowhere
to turn.” -- “Suicide is always a problem.” -- “Lack
of discipline.” -- “Anger
creates suffering.” -- “Deaths
create suffering.” -- “We’re
always fighting and arguing.” -- “Even
if just one commits suicide, it’s a problem.” -- “Guys
are raised to be strong and not show their emotions.” -- “So
many people are thinking about it (suicide) or attempting it.
Usually people we love.” -- “My
Dad yells a lot.” -- “The
splitting up.” -- “Too
much people do it (suicide).” -- “Staying
at the group home (creates suffering).” -- “They
both drink.” -- “When
people have problems, they drink.” -- “My
Mom and Dad fight a lot.” -- “The
fact that a lot of people are using drugs and alcohol and are
passing on because of it.” -- “I
don’t have a father living with us.” -- “Alcohol,
drugs and suicide (create suffering in the community).” -- “Alcohol
creates suffering.”
The adults
“Sexual abuse from
father to daughter.”
-- “I need to quit drinking.” -- “How
do I reach my daughter?”-- “There’s
a lot of pain from residential and boarding school experiences.”
-- “Being treated
inhumanely at boarding school.” -- “Being
physically abused at boarding school.”
2. WHAT I WANT
Youth
“To learn more about
the culture.”
-- “To learn songs and dances.” -- “Get
out on the land.” -- “Parents
being there for me and caring.” -- “Family
activities.” -- “
Drinking to stop, yelling, and bringing up the past.” -- “Stop
arguing.” -- “Change
attitude.” -- “More
accepting, better listeners (parents).”-- “Bring
family members closer together.” -- “My
Mom to stop drinking and pay more attention to me.” -- “My
Dad and Mom would be together.” -- “More
money.” -- “Not
so much alcohol, them both (parents) to realize their childish
ways.” -- “Not
to take anger out on the kids.” -- “Not
to worry so much about me.”
3. WHAT I LIKE
“We all have a good
sense of humour.” -- “Culture
in the community.” -- “The
bond in the family.” -- “The
craziness, fun times.” -- “Time
well spent together.” -- “Being
there for me, caring.” -- “We
get along when we’re happy.” -- “A
lot of people are friendly there (community).” -- “We
all make each other laugh.” -- “We
work together.” -- “Basketball
& education (strengths in the family).”
4. WHAT IS NEEDED
Youth
“Communication.”
-- "Counseling,
family time together.” -- “Love.”
-- “More counselors.”
-- “Programs.”
-- “Money,
poverty is an issue everywhere.” -- “Family
game night.” -- "Youth
outreach programs.” -- “Being
more open with each other (family).” -- “Love,
respect.” -- “Structure
and guidance.” -- “More
help.”-- “More
things to do.” -- “More
education.” -- “The
recreation center open when needed.” -- “Pay
more attention to their kids.” -- “Have
someone to talk to all the time when I’m mad.” -- “More
activities for youth.” -- “Family
counseling.” -- “It
would be nice to have programs for the youth to keep them off
the streets and keep them busy.” -- “More
emotional support.” -- “Things
youth like to do like dances and game rooms and stuff.” -- “Lots
of love and joy.” -- “Getting
more activities like more stuff for our youth center.” -- “You
go on to help other families after you see what’s needed for your
family.” -- “Family
activities.” -- “Counseling.”
-- “Different
people in leadership every time.” -- “Parents
that are loving and caring for their children so that when they
look back, they won’t regret the things they said to them.” --
“Outdoor basketball
courts and hockey for the summer months.”
Adults
ANALYSIS
Providing appropriate
services to meet the needs of First Nations youth in Canada is
attached to a history of cultural oppression spanning generations. Gathering information in the communities
from youth, elders, community members and Front-line Workers proved
the RRCOAP’s 1996 documentation of oppression to be a current
analysis in the Nisga’a, Tsimshian and Haida communities. Intention
to create positive change in First Nations communities requires
a united force of compassionate human beings. Transforming oppression
depends upon the willingness and action of both the colonizer
and colonized to, define the behavior, recognize the behavior
in self and, change the behavior to one of respect. According
to the teachings of the Ayaawx, setting one’s mind to create change
with a good heart will transform the path.
The information received
from Front-line community workers, youth, urban service providers
and community members can be summarized in the following diagrams:
CONCLUSIONS
Canada.
Law Commission of Canada. (2000). Restoring dignity: responding
to child abuse in Canadian institutions. C. Residential
Schools for Aboriginal Children pp. 51-70. Ottawa:
Minister of Public Works and Government Services.
Canada. Royal Commission on Aboriginal Peoples. (1996). Report
of the Royal Commission on Aboriginal Peoples: Looking Forward,
looking back Volume 1. Ottawa: Minister of Supply and Services
Canada
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