By Eugene Matos De Lara.
An argument for Aboriginal self-governance, A glance at its challenges, political reception, and laws. How negative colonial notions have effected aboriginal treaty rights, administrative relationships and political participation.
Tackling Aboriginal issues today has become a major part of political debates throughout Canada. The principles governing relations between the government of Canada and First Nations established by the Crown are entrenched in the constitution by notions.
First Nations should pursue the right of self-governance, and renegotiate the notions that have been established by passed treaties and constitutional conventions because this affects their rights, political participation and finally band councils administrative relationship with the federal government. Since the Royal proclamation of 1763, Aboriginal peoples are considered as nations in their own right who have title to their lands.
In essence, these notions are legal concepts found in treaties, negotiations, and by historical findings. Some of these notions, most especially the angle of their interpretation challenge the statute of self-governance among First Nations handicap rather than help their social growth. Although today the federal seat in Ottawa recognizes the constitutionally protected right for First Nations to manage their own affairs, many First Nations around Canada still feel the negative impact of the Indian Act of 1876 and the Indian Affairs have on their everyday life.
Through hardship and ongoing negotiation with the fiduciary, Aboriginal leaders are vouching for the long demanded absolute inherent right to govern themselves. The mission of this paper is to speculate on how First Nation’s right to self-governance has been effected by the negative interpretation of treaties. In clearer meaning, how it has affected their treaty rights, administrative relationship and political disenchantment in Canada.
The scope of this article does not focus on the non status Indians, Inuit and the Metis. Instead, it recognizes the complexity of the judicial claim coordinated by the on reserve and off members of nations such as the Nisga’a and the six Iroquois nations that reconciliation, self-governance and reparation should be carried without jeopardizing their special status which is key for their survival. First, this paper will describe and place a meaning behind the term of self-governance and the shape it can have.
For context, we will then proceed towards a quick descriptive history of the Crown- first nations relations, conventions, legal developments, current socio economic issues, the role of colonialism and the role of Indian Affairs today.
However, the author acknowledges that the hundreds of distinct nations will have distinct systems and outcomes, but for the sake of time and space, we will only use the notion of land alienability to deal with a more generalized shape. Through case law, scholarly journals, and case studies, we will establish that self-government and the negotiation of their land alienability, has a potential to improve their: education system, social services, child welfare, culture, but most of all their property rights and the management of First Nation land and resource in correlation with their socio economic needs (Armitage,22).
Secondly, we look at how has the Indian act and the AAND effect the administrative relationship between the federal and aboriginal band councils. This finally leaves us to our last point, we have for objective to dispel the doubts that the lack of acknowledgement of self-governance during these interpretations has effected the First Nations Community as a whole, explaining the political disenchantment of aboriginals during federal elections.
Historically, British colonial rules in Canada were established to maintain security and peace with Aboriginal peoples. As the colonies grew, more land mass was required for economic exploitation of the land and further living space(PSRD,i 1984).
First Nations issues became unaddressed for a long period of time, squished out of their land, were thereafter became subjects of the British rule under the constitution of 1867, as specified under section 91 (24). Soon after, this act was followed by the more specific Indian Act of 1876. Since then, there has been an uncontested determination from First Nations to maintain their cultural identities and rights(Mercredi,3).
This paper has for second objective to dispel doubts on the viability and on the need for success of an aboriginal self-government system. This issue is frequently cited as the answer to most if not all of the long suffered problems affecting their communities. In 1969 the White Paper on Indian Policy proposed abolishing band governments and transferring the delivery of social programs on reserves to the provincial governments.
On the other hand, it is a less pleasant reflection when mentioned to federal politicians, a heavy burden that has dramatically erected in Trudeau’s constitutional dynasty. It is a:”[g]overnment(s) with legal recognition of their inherent right to make decisions over their own affairs, generally codified through a process of negotiation and agreement with Canada and, where applicable, the provincial government”(SABAR,2014).
Opposition to the white paper proposal brought the concept of Aboriginal self-government to the national political consciousness for the first time in many years. The definite need for “self-governance” has made a relatively recent but also drastic apparition in the Aboriginal landscape as such.
Aboriginal issues and the Constitution go hand in hand and the interpretation of treaties effect the constitution. The Constitution Act of 1982 has enshrined and affirmed the treaty rights recognized by the fiduciary in section 35. In doing so, the interpretation of section 35 commenced a series of dialogues addressing aboriginal issues and its affirmed notions, which was met by high criticism from band chiefs around Canada(Russell,2000).
The negative interpretation of so many past treaties was enough to overflow the glass when the 1982 dialogues came. The failed attempts during constitutional dialogues to better understand and meet Aboriginal needs has enlightened the crave for self-governance and paved the way for many conflicts, such as the Meech Lake accord and the Oka crisis. Notably, Elija Harper’s refusal to sign the Meech Lake accord, displeased that the Accord had been negotiated in 1987 without the input of Canada’s First Nations(Beavon,2011). The idea was that from thereon, no more constitution and treaty talks should go without the idea of self-governance and without First Nation participation.
It is important to see how First Nation affairs and northern development AAND are being managed to date. Moreover, from the 1880’s till the mid 1900’s, shortly after the invention of the Indian Act 1876 interpreted from the BNA 1867, the federal government instituted a significant number of radical and aggressive policies of assimilation towards First Nations (Collin,2001). The AAND’s power supported by the Indian Act consequently grew to a point that today it numbers and regulates an Indian from birth to death and influences the majority of activities on and off reserve.
It is then questioned the positive intention of constitutional notions should have. Thus, constitutional jurisdiction allows the Indian Act to have authority over most First Nation activities such as enfranchisement of band and band members, band funds, band government formation, socio economic activities, law enforcement, and natural resources on reserve. Later we will discuss the issue of band funds as an administrative consequence of the Indian act and negative notions. Consequently, the capabilities of band chiefs and their council, restrained by S.81 Indian Act, represent just an advisory position within the AAND (PSRD,1984).
The notions that have driven to the creation of the AAND has negatively impacted First Nations. It is clear that bands do not have enough power to fully administer their affairs as the fiduciary would claim. It is suggested, moreover, the Act and notions have been written with the assumption of an existing social and racial superiority over First Nations. In doing so, many take the Indian Act as an instrument of assimilation by segregation (Lowenberg 1998).
The attempts to assimilate First Nations in the early 1900’s to a more European society could not have been more disastrous. By interposing and placing status Indians on isolated reserves, the federal government attempted to use the reserve as a social incubator to inject modern Canadian norms. Consequently, in cooperation with the church,150,000 children were removed from their homes and placed in residential schools for assimilation into the dominant Canadian culture, “this was violent in its intention to “kill the Indian” in the child for the sake of Christian civilization”(Milloy,2015). Nevertheless, decades past and the ministry and the legislative would repeatedly establish policies of assimilation with no more success and now blamed for the collapse of many Aboriginal societies(Galabuzi 2006).
The credibility of the legislation written by negative notions should be reconsidered and repented by the legislature. First Nations have endured enough suffocation from the Indian Act and its enforcement actors beyond contention (Mercredi,1993). The outdated racially driven Indian Act till today shapes the lives of all First Nation members. Through sporadic efforts, First Nations are opposed to having an act written with racial notions to have control over their affairs.
Aboriginal self-government is not the product of recent ideas and political activists. For generations, Canadians have asked themselves if aboriginal self-government is actually feasible, or if they possess the faculties to govern themselves. In hindsight, Canadian court judges would surely ask the same question during a hearing such as Delgamuukw v. British Columbia. Since first contact, settlers and Canadian pioneers have successfully diminished the limit of power of aboriginal communities. Thus, one could imagine how little of an opportunity most Canadian politicians must have had to learn from aboriginal self-governance.
In sight of this history it is hard to see how the general Canadian population could be qualified or entitled to answer the question of feasibility. In addition, when visioning the future of Canadian’s First Nations, legislatures must disregard the Indian act and not view it as a moral imperative.
Aboriginals have had difficulties adjusting their angle when approaching a court case and constitutional talks;( we might say they don’t flare well). Finding innovation in an outdated act is strenuous, time consuming; others would say it is inconceivable. Moreover, the courts frequently refer to the Crown’s fiduciary duty to protect aboriginal interests in terms of “honour of the Crown.” This implies that to disregard the interests of the aboriginal community has always been vulnerable and seen as dishonourable and ignoble.
However, the sight of First Nation communities raising their flags in front of the supreme court of Canada is a common one. Per year Canadian tax payers pay 106 million dollars (Mass 2015). In comparison the second most expensive, Revenue Canada tax court costs 66 million dollars. It’s not in the tax payer’s interest nor in the aboriginal interest to pay this sum (APTN,2014).
Self-government would give the capacity for aboriginal leaders to efficiently tackle the matters of their group by drafting their own policies and moving away from the dependency factor. The author understands that self determination could be possible and the survivability of key notions found in the constitutions must be renegotiated. As an example, we will concentrate on how delegating complete control and use of reserve land would allow a full exploitation of its economic potential. This section will focus on the negative effects of the single notion of inalienability. Correlatively, terminating the beneficiary factor and the remnant fiduciary relationship in respect to the collective land ownership with the Crown is essential for Aboriginal economic determination. (Wingrove,2012).
The case of Delgamuukw v. British Columbia deals with the nature and scope of the constitutional protection afforded by S. 35(1) of the Constitution Act, 1867, to common law aboriginal title. It is also an example of a notion being a double-edged sword. S. 35(1) states the following: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” The court has stated that this section should be given a generous and liberal interpretation in favour of aboriginal peoples (R v Van Der Peet). This means that any ambiguities with respect to what falls in the scope of s. 35(1) must be resolved in favour of aboriginal peoples.
There are several reasons for this. One is the reconciliation between the assertion of the Crown’s sovereignty and recognition of aboriginal land claims based on oral historical claims. The uniqueness of the character of aboriginal title inevitably leads us to the question: Does this notion do more harm than good? The doctrine of inalienability prevents aboriginal people from getting mortgages and raising capital as a result since banks will not offer mortgages if they have no power to foreclose on aboriginal property.
This stunts their economic growth and institutionalizes their poverty, since they are unable to unlock capital from their property in the same way that non aboriginal Canadians can. However, several solutions may be available to the aboriginal community if this was to be renegotiated. For example, mortgages may be able to include conditions limiting the banks to sell the property to another member of the reserve in the event of a foreclosure; but banks will be unlikely to favour the option, since this limits the pool of willing buyers. Another possible solution is for an aboriginal proxy within the reserve to act for the bank, whereby the proxy has legal title of the property, but the bank has beneficial ownership of property.
Finally, the establishment of a minimum reserve of land or a maximum percentage of the reserve of mortgageable land percentages to be allocated via lottery may serve to protect the reserve from ‘giving away the farm’, while allowing them access to traditional finance methods. A stipulation can also be made that a percentage of the amount financed must be levied by the reserve. Another problem with the doctrine of inalienability is that it takes a dim view of Aboriginals. Why can’t they be trusted to make decisions for themselves and act in their own best interests? Why should there be a need to depend on the federal government to act on their behalf? They should be allowed to decide for themselves whether they want the land to be inalienable or not and so there should be a chance to decide if other notions should be applicable to them. They are the ones forced to live with the consequences, not the federal government. They are born into this inalienable right and so should be able to decide how they want it to affect their lives later on.
The right to self-government should not be seen as a reconstruction, but rather as a slow transfer of legislative rights and jurisdiction from the federal to the third order government. We must think of how a third order government could fit within the federation and be in harmony with the constitution and its notions.
By using basic constitutional knowledge, this section will paint a rational path that first nations might take to pursue self-governance. The notion of self-governance is being mentioned periodically during first ministers’ conferences. It is after all an inherent right guaranteed as an existing right under S.35 of the Constitution Act 1982. Courts to date have been witness to an unprecedented series of success on different aboriginal claims.
However, it does seem that the issue of whether or not first nations should be governed by their own independent government will not be taken to question by court anytime soon. On the other hand, thinkers such as R.Dan that have managed to see beyond the Indian Act feel more optimistic on the viable idea. The transition from guardianship to sovereign must be incremental and slow(R.Dan.2000). Canada’s constitutional monarchy creates a brick wall for legislators and judges to present an attitude for a creation of a First nation government. The question we must ask ourselves is how we can use political innovation to achieve it by considering all first nation communities as distinct from one another.
The high cost of interpreting notions in court has already been mentioned. That is because the core of the issue of self-determination is entrenched and sealed by the BNAA 1867 and 1982. Therefore, it provokes the rule of law, and becomes a very ambitious task to be tackled by interpreting treaties. An alternative to these court battle is to amend the constitution and dust off the Indian Act. We must find new alternatives for a peaceful transition: the rule of law can be stressed when asked to defend the constitution notions and the reconciliation with the First Nations.
Dan Russell in A People’s Dream lays out a system that creates tailored tribunals when dealing with the transfer of powers to the First Nation. Having a special aboriginal commission to permanently sit in provincial and federal courts can be constructive to the cause and improve an ethno cultural representation. This commission can be filled by status Indians or experts in aboriginal law and culture. It will then act as an advisory group to ensure that the outcome of judicial works is balanced and equitable(R.Dan 2000).This special committee can be used as an interpretive tool to establish clarity on aboriginal perspectives.
Finally, the survivability of key notions of special treatment established by the fiduciary must be meticulously dealt with when delegating constitutional powers to the First Nations. As dissected before, the notion of land alienability in aboriginal reserves can be a double edged sword. Several other notions found in conventions constrain the overall idea of self-governance. These conventions such as Canada’s fiduciary duty found in Guerin v. The Queen (1984) perceive First nations as a duty to a nation that cannot survive without a legal guardianship, thus it becomes the pillar for the grand entrance of Canadian federal encroachment in what should be Aboriginal jurisdiction.
Today, Aboriginals are seen by some as colourful feather wearing subjects and residues of historical artefacts. It is time that Canadian law is aware that Aboriginals are well present in our 21stcentury society and must be treated as a distinct nations with independent capabilities. Accordingly, each of the 575 distinct existing bands must be given the choice of how treaties are put in practice, similar to the one of the duty to consult a first nation before making an administrative decision, found in Haida case in 2005 by the Supreme Court. In essence, it is suggested that First nations should have a right to renegotiate all constitutional norms affecting them. Canadian courts must guide First Nations to self-government by cooperating with aboriginals when amending the constitution to ensure equity, reconciliation, and efficiency.
In comparison, the 1831 chief justice Marshall from the state of Georgia spearheaded a landmark Tribal case, where he found that “the argument as was intended to prove the character of the Cherokees as a state, as [a] distinct political society separated from others, capable of managing its own affairs and governing itself, has in the option of a majority judges, been completely successful”(Cherokee Nation v. Georgia).Today there are over 400 Indian reservations scattered throughout the United states (T.L,Anderson,2014), all carry the status of Tribal sovereignty since over a century.
Secondly, I critically dismantle the Indian act and its negative notions and place it as the key legal legislation to blame for the creation of a negative administrative relationship between Aboriginals and the Canadian state. I present the case that although we can view colonial treaties as an administrative preamble, the Indian act is the definitive introduction and hopefully the conclusion to the negative administrative relationships of both sides.
In turn, I propose that we can organize the act’s administrative relationship more specifically between First Nations communities (individuals, elders alike) and the public administration process in Canada. Primarily by the creation of an Indian affairs portfolio to be carried by several federal institutions until it presently rests with the AAND. Today this department is the forefront of the administrative relationship Canada has with aboriginal communities. This department engages with local aboriginal administrators and band councils in many ways, however we will focus on identifying the different fiscal projects and the way the trending New Public Management NPM has changed monetary aid given to aboriginal communities, and observe their relations then.
It is also imperative for the reader to understand that Canada’s European tradition in administrative rules of government are linear and pose an assimilative threat to those being colonized. The Indian act has become the political translator for the Canadian state and its public administration process to access what was before culturally alien to the colony. In doing so, modern institutions and political vehicles created by the act are strategically engaged with aboriginal political culture such as band meetings and community decision process, and translate it to Canada’s public administration institutions in order for Canada’s government to regulate their actions, decisions and also for the federal government to efficiently respond to their demands (Shepherd 2010).
We see how the indigenous population of Canada have been assimilated to Canada’s administrative system. Canada has decided that an organized linear administration of every aboriginal should carry from its recognition, birth, till death. Indeed, to be recognized as an aboriginal, one must comply to strenuous standards of regulations. Although overreaching beyond our scope it is thoughtful enough to reflect the act as a creation of a legal funnel that administers all the laws and bylaws concerning aboriginals in Canada delegated now to the AAND. As an administrative regime, the Indian Act provides ways of understanding Native identity, organizing a conceptual framework once again linear that has shaped contemporary Indian life in ways that are now so familiar as to almost seem natural.
Briefly, to recall above the Indian act 1876 is federal law, as suggested above the legislation carries a highly invasive and contradictory history as the federal government becomes a paternalistic authority regulating day to day activities of registered Indians. The legal authority encompasses much more than political control, it overarches to reach governing structures on communities, it controls the rights and legal status of Indians as well as traditions, land management of reserves and most important how and when can they receive federal grants and social help.
Over time the Indian act became developed as a compilation but also a consolidation of many colonial treaties and legislation aimed to aboriginal people in Canada such as the Gradual Civilization Act 1857, and the Gradual Enfranchisement Act of 1869. “The great aim of our legislation has been to do away with tribal system and assimilate the Indian people in all respects with the other inhabitants of the Dominion as speedily as they are fit to change”(John A Macdonald 1887). Previous administrative acts such as the Gradual Civilization Act 1857, had for mandate to assimilative through aggressive social mechanisms into a settler society through enfranchisement and cultural deprivation. The Indian Act correlates to this history of assimilative institutions and policies that have for intentions to alienate economic, social and the distinctiveness of these communities by the strategic absorption into the mainstream values in Canada.
The department is the forefront in Canada’s administrative relationship with aboriginals, fulfilling the constitutional obligations and ‘responsibilities’ to aboriginal communities and its members. The word responsibilities is often used in the department’s mandate as well as the way academics have described it’s functions (Shepherd 2010). Correlatively, the word responsibilities is engaging and sets the tone of a patriarchal relationship encrusted in the foundation of the administrative relationship at hand.
By this foundation it carries three mandates; First, improve a social standard and the economic potential. Second, engage in community development in terms of health and its sustainability. Third, to heighten the engagement of aboriginals to Canadian political culture and in turn, to have them benefit and be part of this socio economic community. When dissecting this view on paternal responsibility, we must add that Robert Shepherd in First Nations and the Public Sector comes in with the idea of accountability and its nature in the relationship at stake (Shepherd 2010).
The accountability is targeted here, since the ‘responsibility’ for the sanctions given by an authority, enforceable by some other entity in a higher level of hierarchy, are hard to achieve and organize. This principle also known as ‘principal agent version’. This principle proposes a system of delegation of responsibilities in the AAND according to established expectation with aboriginal communities through hierarchy. Today with what is known to be New Public Management NPM, the accountability is usually based on money value and performance and results related to the administrative relationship. Indeed, NPM is one of the many changes in the accountability relationships between the government, Indian act and the Aboriginal communities.
One of the focus of the AAND is the Contribution Agreements that have proven to be a strong linkage through mutual endeavors between the federal government and local aboriginal subjects (Shepherd 2010). It is this linkage where I believe the strongest relationship between both federal and aboriginal government occur. Yet, it has given aboriginal leaders the devoir of overseeing the fiscal agreements and responsibility of band affairs, however without interfering with the policy structure and the department itself. Herein lies our problem. The most important element of fiscal projects and their administration is their appropriateness.
There are a few ways to these fiscal projects and agreements are conducted and different criteria to follow and to determine whether the contribution was appropriate. Out of many tools to use to determine whether fiscal contribution to a community was appropriate, Canadian NPM has that the performance is measured by how close the project or agreement meets the expectation of the AAND and not the community (Shepherd 2010). In this sense, the NPM system directly gives greater autonomy to the AAND to heighten the performance and maximize the flexibility on how the service is provided since it meets their three mandates as mentioned above.
However, I find that the AAND is very much related to the classic Weberian model of close supervision of individuals with low autonomy and are subject to strict bylaws and regulations thus (Shepherd 2010). It is also noted that this style of accountability is very strict and in turn is incompatible with the dynamic environment of aboriginal communities, even less to the constant changes, such as the NPM which still induces a linear model which is alien to the relationship between both aboriginals and the government (Shepherd 2010). The Weberian model is applicable to NPM and is the heart of linearity and unmalleable in what we offer to aboriginals.
Funds and federal investment projects in aboriginal communities are major tools where both the federal and aboriginal interact closely. It is in the table of this discussion and negotiation towards better financement in aboriginal communities where we find evidence of a clear negative administrative relationship. In this sense, the relationship becomes contractual and stressful, to find who has the bigger end of the deal. In this scenario we have dual obligation of both parties, like any other contract, where detailed obligations are given to the federal government as well as to the aboriginal band councils.
Indeed, conditions and terms are given to the First Nations in order for these to receive compensation and funding. We have seen this frequently enough, one of the instigators is the Financial Transparency act, where every First Nation band council of a reserve have to submit no fewer than 168 annual report, hinting an excessive amount of time and resource is given to the bureaucratic monsters rather than letting the Indian managers manage (Shepherd 2010). Failing to comply true moral obligations, the federal will place negative sanctions to condone the behavior of its ‘ward’ (Shepherd 2010). A CBC investigation titled “First Nations bands have until midnight to submit 2014-15 financial data or risk funding loss”, has demonstrated that strict bureaucratic accountability measures are in place (Mass 2015). Its strictness stresses the bands with poor administration, who will see the funding of essential services withheld. In the spirit of reconciliation, it is important to always keep proportionality and appropriate balance between ministerial and aboriginal responsibilities so that no nation has to succumb to the withdrawal of essential benefits. In addition, flexibility and adaptability of programs are key ingredients to develop a healthy accountability system.
To give a sense of the meaningful support given to aboriginal communities, we can reflect on the 7000$ the AAND administers per aboriginal child (although in comparison to 10k for avg. Canadians) towards education in hope to heighten the social standard and economical potential in communities. Today this is far reaching when most of the aboriginal population is young. Kids 14 and younger make up 28% of the population and between 14 and 24 18% (StatsCan 2015). This population his highlighted when 60% of high school attendees end dropping out (StatsCan 2015). In addition, the crisis in clean water supply, waste disposal and good housing projects and assessments are initiatives that the AAND has funded along the years as an attempt to improve the health and sustainability in aboriginal communities. In 1991, less than 80% of on-reserve housing had basic water and sewer services.
The initiative sought to that by 2001 98%of on reserve homes had water and 94% had adequate sewers systems (StatsCan 2015). The AAND introduced in 2007 and First Nations Infrastructure Fund to improve the sustainability in remote impoverished communities. Each community was administered by the AAND 10$ million on a five year time frame for skill development, waste management, roads, energy, and connectivity (StatsCan 2015). The 262 approved proposal totaling the sum of 94$ million is a clear indication of one the AAND’s duty to help the sustainability of communities (StatsCan 2015). On the other hand, both information gathered on the investment in education and infrastructure correlate to the dependency these communities have towards the AAND and its administrative resources and sanctions. This dependency leads to a long term social degradation of the social environment in Aboriginal communities. Which again builds on the heart question of this paper, whether the administrative relationship and contractual obligations between the federal and aboriginal communities respect the notion of self determination and autonomy of band councils in aboriginal communities.
Presently, with the NPM trending, the AAND uses a few modern funding arrangements for subjects under the Indian Act and their councils, in hope to increase the administrative effectiveness and efficiency in monetary aid. Models that enable fiscal arrangements to be tied with their entitlement and their treaty rights. Monetary aid as a right, given by unconditional grant programs is the correct way to go. However, the funding tends to be very minimal in comparison to the overall budget of most band governments (Shepherd 2010). This rarity should be left out of our discussion, in order to concentrate on the popular trends in the AAND. Instead, the AAND uses an alternative to the unconditional grants which I will dismantle and criticize.
The most popular of fiscal trends, are the Contribution Agreements, who operate for a year for single specific purpose or to a program to the cost of high degree of accountability and control for the government (Shepherd 2010). These agreements are used for one time projects, usually stand alone, that is strict on scheduling and performance. As such, these are justified as being complicated for aboriginal communities to manage its performance. Contribution Agreements give small opportunity to bands and communities to set their own priorities given its strict accountability requirements and limits to scrupulous terms of application (Shepherd 2010).
It is doubtless that the federal government believed that the reforms done on its administration lead by the NPM regarding efficiency and accountability would be accepted by the aboriginal communities (Robert. 2010). In order to salvage the debris done by the Indian Act, the federal government though that all aboriginals would welcome NPM since it would give more sense of accountability, more responsibility and greater management authority. First nations are still subject to strict laws and attached fiscal conditions, giving an undisputable edge to the federal government. Indeed, in going by the logic, given above, that these are inherent rights, it is a violation for the government to dominate administrative accountability arrangements. It again punctures the nation to nation relationship, bashes self-government stands and nurtures exploitive relationship. NPM and the Canadian administration has shown to be disconnected and unresponsive to aboriginal concerns.
The programs and options of grants do not address their need of self-governance and little to the reparation done by the Indian act and naught to the aim of reconciliation. Moreover, NPM is regarded by aboriginals as very similar to traditional ruled based agreements thus the public relation is still stiff from the ability of greater autonomy (Robert. 2010). Although we have seen an increase to the value of local management and autonomy the federal adopted an extra coating of accountability as seen in the transparency act to make sure that aboriginals redress into their given program by what I call bureaucratic suffocation to the point of disenchantment of the Canadian public system. It seems to me the NPM in this case simply has replaced one mechanism with another that is encircling the true problem of lack of self-determination like other policies deriving from the Indian act would. The effects of rules such as the transparency act further entrenches aboriginal communities to the long and strenuous assimilated vision of the Indian act.
In the spirit of reconciliation with First Nation and most notably their not long ago 50 years of voting rights celebration, voting turnout amongst Indigenous communities is still very low. CBC press release titled “Frist nations right to vote granted 50 years ago” and how far have we come since (CBC,2010)? Not far at all I believe. I finally, digest surveys and academic articles directed towards the studies done on the Indigenous population of Canada and their approach on the 2008 elections. In turn, this will be instructive as we approach our objective, which is to find why Indigenous political participation has been low in Canada, and how it relates to the negative notions and lack of self-governance.
In the weeks preceding the October 2008 Federal elections the Assembly of First Nations in partnership with Elections Canada took the heavy burden to find a way to address the issue of the low turnout amongst the Indigenous population during elections. This campaign and similar initiatives have become popular since 2006, as focus groups and the Assembly of First Nations have been committed to increase the number of natives, especially on reserve, to vote in both federal and provincial elections (Daniel,J 2011).
It is imperative to remember that the final “group” of Canadians to attain the right to vote were the Aboriginal people(Morris Jones 1954). At the time it was believed that it was easier for a landed recent landed immigrant to gain this right than a native. The only route to vote was through a legal trap of enfranchisement. Following confederation, enfranchisement became the only solution, where a native would give up the fiduciary relationship and treaty rights imposed by the Indian act. However, upon relieving a subject from the restraints of the Indian act, rights and protection given would be nullified. Since the time of confederation many Indigenous groups have a strong will to believe that voting in Canada means recognizing the Canadian government and their acts in managing their treaty rights, and placing aside their own determinations(Morris Jones 1954). This was exceptionally true then, however it is a persistent thought that still remains today as an ideology.
The popular participation of many natives in WWII brought light to the question once again of the right to vote. For the first time, Canadians began to consider First Nations as patriotic entities and the claim for the natives began to gain strength. It was not until 1960 Diefenbaker extended the right without further request and unconditionally to all First Nation groups. “I felt it was so unjust that they dindn’t have the vote… I brought it about as soon as I could after becoming prime minister” said Diefenbaker (Fleras,2007).
Since their first encounter at polls the numbers of Indigenous voters never surpassed the 41%, and 10% if we were to exclude the off reserve members (Howe,2009). Evidence strongly suggest that at the time (1950s) it can be argued that low turnout were sympathizers and share some acceptance with the Canadian government(Morris Jones 1954). Could this still be the case today? Politicians and academics present strong concerns that the low turnout of participants in Indigenous communities show that they are in fact unengaged from our electoral process and perhaps our government as a whole. First Nation Chiefs had mixed feelings in 2010 at the anniversary of 50 years of voting rights.
Many believe that the intentions of Diefenbaker government wrote the ban off were more malicious rather than a step towards reconciliation. Chiefs such as Erasmus of the Dene Nation believe it deeply affected the nation to nation relationship norm Canada had with the government bashing the notion of self-governance and disrespected treaty rights. Moreover, this meaningful change was done without consultation with Indigenous groups. “That’s what the whole exercise was about. It was to make us Canadians, and we never had a discussion about that,” Erasmus said. “So yes, I think people want to participate in Canadian society, but they need to participate on conditions that they entered into with the Crown. So that’s why my feelings are mixed on the question.”(CBC,2010).
Olvide Mercredi a renowned Chief was one of many entities in First Nation who focused on pursuing a nation to nation relationship during negotiations(Mercrdis 1993). This arm length from the federal during negotiations has given First Nations space to build better autonomy. “[S]elf-government has a higher priority for the AFN than participation in elections… [T]he heady wine of Aboriginal nationalism and the inherent right to self-government” is more exciting than the “more humdrum business of elections for minority Aboriginal populations” whom most believe their vote is minor and has little affect (Mercrdis, 1993).
I believe the argument has strength however, for most, engaging in issues of self- governance is a right of indigenous and it is imperative for them to take care of it as a priority rather than supporting Canadian elections. In doing so, participation in electoral may be contradictory to their cause. It is to question further how much tension in working in building an electoral participation action plan brings between First Nation communities and Canada’s government in general, what is the correlation of causality of one with the other, if electoral participations rises does the will for self determination decreases? “[E]ven the most generous self-government arrangement will leave hugely important policy areas beyond their grasp,” (Lader,2003, pg7) and, hence, presumably open to greater influence and input as the voter participation rate among Aboriginal persons increases (Howe,2009). We find correlation between both factors.
One thing is certain people are now seeing the importance of First Nations participation in federal and provincial election at a steady increase and researchers have joined to study this case(Armitage1995). In addition, researchers and political scientist join and produce empirical studies to measure the turnout level and small sampling methods to see the factors that influences it. Although they have had the right to vote for several decades little is known about their participation since the few studies have generally began after 2003(Silver, J.2005). Even more hazardous to our research on the political phenomenon at stake the studies and suggestions are not universal in their scope, thus only catering polling area with Indigenous representative or in an area with they form a significant portion of voters. Studies suggest that the participation rates are low and unpredictable with large variations of turnout. In 2004 it was noted that there was a 17% decrease on Indigenous voter turnout in comparison to the previous elections (Poelzer, G.2014).
Furthermore, another issue to take in mind when dealing with viable solutions for Indigenous voter turnouts, is the diversity of the communities. One must visualize the Indigenous community as diverse and essentially diverse rather than singular. Indeed, many Nations within Canada have flared well with Canadian politics, while other have taken towards a cynical view of them. In turn, nations such as the Cree of northern Quebec have demonstrated a 22% higher turnout than the average Indigenous member (Canada.A,;2015). Studies have demonstrated that the location of reserve as much as their economical status has a strong correlation towards their member’s political engagement. Indeed, many nations such as the Cree have appreciated extended socio economical help from private cooperation and the government as they tie deals of natural sources extractions (Guérin, D.2003).
Finding the core issue will be hard to find as studies are few and the problem inherently diverse. As you enter its realm one will find that dealing with off and on reserves is inherently different, as much as if we were to tackle the issue with young Indigenous members vs Women. Therefore one may find that one study might not suffice however many, since it becomes the first step of recognition of their vast diversity which dwells in the realm of Canadian first nations. Many studies on Indigenous discourses have been singulars that create gross generalizations (Wolfinger, 2008). It is time that Canada recognizes gross diversity in the Indigenous dialogue.
All studies I have found agree on one thing to be sure, despite methodological difficulties, all general consent is accepted that Indigenous population are less likely to vote than non-members, the same case stands on civic engagements and it troubles me as much as other researchers that a true reason has not been found despite the numerous projects(Rosenstone,2003). After tackling the literature and conclusive portions of a few projects and CBC articles, the argument of aboriginal identity in indigenous culture may overlap Canada’s national identity causing them to regard Canada’s election as a foreign matter. The factor that contributes to this is majorly the push towards self-government and the protest of negative notions infecting treaty relations which still stands as the best answer to their lack of turnout. Moreover other factors encourage these results such as “the rise of identity politics and global tendency to localism [and] attempts at cultural linguistic preservation(Rosenstone,2003).
Already I find that there are two strands of issues when envisioning solutions for turn out increase. The first is the socio economic issues around first nations which becomes a wall to the accessibility to the polls. This issue is easily related to other Canadian minorities who suffer poverty and feel outcast. The second, is the principal problem, their protest against our current government, which fueled by it First Nations boycott the elections, since 1; they claim the government is not representative and inherently hostile to the nations (Bargiel 2013), 2; the right to vote was given to them without consultation, many chiefs believe that it has become a double edged sword, 3, their treaty rights have been disrespected(Guerin 2003). All this relates to the fact that self governance has been bashed from the arena and willfully replaced negative notions. I conclude that a reliable academic answer yet has not been found, devastated however eager to look for the cause of Indigenous low turnout levels in elections will only be possible if researchers find a better research method tailored for the case at hand (Lowenberg 1998). However, concluding that fostering a healthier relationship will definitely encourage the engagement of more political participants in aboriginal communities.
To date most of these so called reconciliation programs, initiated by the federal government, have been managed according to their own preferences (Russell, 2000). However, it is without saying that to date real improvement for nation to nation building has not truly been tried. Progress for respectful relations should be the main objective here. Federal policy concerning the natives has had an unfavourable impact towards their crucial demand for self-determination. Although we have concluded that first nations are in need of self-determination, this opinion paper is focused on the need of socio-economic development and striking a balance of powers between the crown and first nations. The laws regulating the well-being of First Nations have been written around the concepts of separation and assimilation. For the sake of the reparation from their alienation and economical marginality, the federal government must enable First Nations to be self-governed, be in control of on and off reserve Indians, be in harmony with the federation , renegotiate constitutional notions, and the strike for the abolishment of the Indian Act. This paper has also given the reader a look into how a carefully managed transition can benefit their socio economic needs and the survivability of key negotiated notions of special treatment established by the fiduciary relationship the First Nations have with the crown can be a phenomenal step towards reconciliation.
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