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The Impact Of The Penner Report

Law Firm of Soonias and Pennington

SASKATCHEWAN INDIAN      APRIL/MAY 1984      SPECIAL EDITION p22
The Impact of the Penner Report
The following item was prepared by the Law firm of Soonias and Pennington for the FSIN. The report provides answers to various questions, that were addressed to the Special Committee of the House of Commons on Indian Self- Government.

The questions include; various aspects of the implementation of Indian Government including; Membership, Control Land, Revenue Economic Base, and The Crown Trust Responsibility.

What is the report aiming at?

The Parliamentary Committee in its Report on establishing Indian Self-Government says that Indian people have the right to a special place within the Canadian Constitution and political system. They say that the relationship today between Indian people and the federal government is not working. Federal policies and agencies are operating to increase Indian poverty and dependence.

Photograph of cooking or boiling. The Committee agreed with witnesses from the Indian First Nations that Indian peoples must control their own affairs. They said a new relationship with the federal government was needed. Whatever new system is adopted should allow the different Indian nations across Canada to control their own affairs and protect their own rights and traditions.

An essential part of this new relationship with the federal government should be Indian self-government, the Committee says. Their report fails to answer many of the practical problems involved in putting a system of Indian self-government in place, however. Much work must still be done to answer many questions individual bands have about membership, coming into the system, accountability of Indian governments, treaty rights and financial arrangements. Many bands are also concerned about the continuing trust relationship with the federal government if Indian Affairs is phased out as the Committee recommends.

How would bands determine their membership?

The Committee agreed with the F.S.I.N. that Indian self-government must begin with existing bands. The A.F.I.N. suggested that each Band would at first be considered an Indian first nation. Some bands may wish to join together to allow their original nation to form a central Indian government. In a few cases, where different peoples have been brought together to form one band, an existing band may separate into two or more units.

It was felt that a necessary first step on the road to achieving self-government was for each band or first Nation to adopt a membership code to determine who would be allowed to participate in setting up its government. Re-instatement of persons removed from band membership by operation of the Indian Act should be done first, however. The A.F.N. and other Indian representatives argued that Indian governments themselves rather than the federal government should decide on who should be reinstated. It is not clear from the Committee 's report whether they agreed with this or not.

The Committee suggests a procedure by which each Indian band or First Nations could determine its membership or citizenship. All those presently on a band list under the Indian Act plus those re-instated get together to decide who else should be included in their membership. This group would then agree on the rules to use to determine membership. The only restriction on what rules a band could use to determine its membership is that these rules should follow international human rights covenants against discrimination. This group of members would also set up a procedure for membership appeals. All those qualifying for membership under the rules adopted by this group would then decide what form their government would take and apply to the federal government for recognition.

The Committee also liked the idea of the two tier system of status and membership. This system would allow the federal government to set up a general list for status Indians who are not members of an Indian First Nation. Status Indians on the general list would receive program benefits from the federal government but would


The Impact Of The Penner Report

Law Firm of Soonias and Pennington

SASKATCHEWAN INDIAN      APRIL/MAY 1984      SPECIAL EDITION p23
The Impact of the Penner Report have no right to vote or share in the land or property of an Indian First Nation.

The Committee says nothing about issues such as which government will be responsible for providing education, social services and health care services to those on the general list. Although these matters are within provincial jurisdiction, disputes have arisen in the past about the province providing these services to Indian people.

Nothing is said either about members of First Nations who live outside the territory of their Nation. Who will be responsible for providing services to these people - the province, the federal government or their Indian government? Will their Indian government have the power to make laws affecting them and to enforce those laws against members living off reserve? These very practical questions must be answered in whatever system of Indian government is set up.

At present, the Indian Act allows only band members ordinarily resident on the band's reserve to vote and participate in band government. Band by-laws apply only on reserve. Services are usually provided to status Indians living off reserve by both federal and provincial governments according to each's area of responsibility. Whether this arrangement would continue with Indian self-government has yet to be worked out.

How would band government function?

The Impact of the Penner Report The Committee says that the people belonging to each Indian band or nation should determine the structure of government they wish to have. Some may wish to continue with the band council format or adopt the western parliamentary system. Some may feel more comfortable with another structure.

Most bands will likely want to adopt a written constitution describing the structure and powers of its government. A constitution would also set out the way in which the people can keep their government accountable.

The Committee suggests several ways in which each Indian band or nation can make sure its government is accountable to the people. They suggest a band may wish to include in its constitution a requirement that financial and other information, annual reports and audits be available and easily understood. Another way to insure a government is accountable is for the people to retain certain powers which government officials cannot exercise without holding a referendum to get the people's approval. A constitution should also include a way to remove government officials from office for improper use of their powers. Procedures to appeal unjust or improper decisions should also be worked out. Individual and collective rights should also be protected in a constitution.

Constitutional government also requires that the powers of law making, enforcement and adjudication be exercised by separate government bodies. Division of power between legislative, executive and judiciary helps to provide restraints and checks and balances on political powers.

Constitutional government also requires openness and disclosure of the affairs of the government. The people cannot participate effectively in their own government without being informed of its activities. This is why most constitutions require the legislature to publish its debates. Effective responsible government can only be achieved if the people are willing to take part and keep themselves informed.

Traditional Indian governments were usually democratic in the sense that power and authority were spread among several institutions. Each local group was sovereign in creating laws that reflect the needs of its people. Decisions affecting the entire tribe were usually made by a council or assembly which represented the various clans or bands of the tribe. In turn, many tribes or nations maintained associations with a confederacy of other nations which had common political or economic goals. The sharing of expertise and resources in such alliances helped to maximize group efforts through unity while still preserving the autonomy of the band.

A written constitution is usually kept rather vague and general and has clauses like the "right to life, liberty and happiness" such as in the American constitution. This lets the society adapt to changes more easily.


The Impact Of The Penner Report

Law Firm of Soonias and Pennington

SASKATCHEWAN INDIAN      APRIL/MAY 1984      SPECIAL EDITION p24
The Impact of the Penner Report A constitutional government cannot survive where the constitution sets down rules for conducting its affairs foreign to the customs and way of thinking of the people.

Where a people wish to govern itself in a way significantly different from the present system, a written statement in a constitution of the goals towards which they wish their community to move is both desirable and advisable. Reaching a consensus on goals and principles can strengthen a community. A clear declaration of these in a written constitution will help a people to make a break from the existing system.

What would bands control?

The Committee made several recommendations about the powers of Indian government. We have already discussed bands controlling reinstatement of band members and future membership in their nation. The Committee also says that Indian governments should have full legislative and policy making powers on matters affecting Indian people. They say the exact scope of jurisdiction of Indian governments should be decided by negotiation with the federal government.

Indian governments should have power to make laws about their nations social and cultural development, including education and family relations. Some bands may wish to continue existing federal or provincial programs or services and this they should be allowed to do, the Committee says. Indian governments should also be allowed to set up their own system of law enforcement and justice.

They say Indian governments should also have sole control of and the power to make laws about the use of lands and resources within the bounds of their territory. This would include the power to raise revenue and make laws about economic and commercial development. Indian governments would exercise its power jointly with provincial or federal governments on lands subject to Indian rights which are not reserved for Indians, that is in treaty land claims areas.

Within each subject area, an Indian government would exercise powers over all people inside its territorial limits. Non-members moving onto Indian lands to live, do business or visit would be governed by the laws of the Indian nation. During the transition from provincial or federal jurisdiction to Indian government power, existing laws would prevail until an Indian government exercised its power in a given area.

The Committee does not address the crucial question of who owns Indian lands. At present the federal Crown owns the underlying legal title to lands reserved for the use of Indian bands. Would an Indian nation own its land in the same way a province or the federal Crown does so that it would remain a part of its territory regardless of whether "sold" to private interest? If sold, would an Indian government have the power to expropriate private lands? These questions are fundamental to the power and jurisdiction of a government's control over its territory and will have to be worked out before any system of Indian self-government can be put into place.

How would bands get control of their land and matters affecting their people?

The Committee says the Canadian Constitution should be changed to give Indian nations the right to be self-governing. Until the Constitution can be amended, however, the Committee says the federal government should adopt legislation called the "Indian First Nations Recognition Act". Under this Act, an Indian government would be recognized as the government of its nation by showing it has the support of a large majority of the people belonging to the particular nation. An Indian government would also have to show that it had established an acceptable membership code, with a procedure for appeals, as well as a system of accountability to its people before the nation or band would be recognized as self-governing under the Act.

A Ministry of State for Indian First Nations Relations with a panel appointed jointly by the Minister of State and designated representatives of the Indian nations would determine whether an Indian government met the criteria necessary for recognition under the Act. It is also recommended that an independent secretariat be jointly appointed and funded to provide a neutral forum for conducting negotiations between the federal government and the designated representatives of the First Nations.

The Committee also recommends other legislation to allow the federal government to make agreements with Indian bands and nations as to the jurisdiction each government will occupy. It is not clear exactly what the Committee has in mind here. Separate agreements as to the jurisdiction of each Indian government could very well lead to an incredibly complex system of Indian government. Each individual band, part of a band or larger Indian nation across the country could negotiate a different agreement with the federal government. The varying degree and scope of powers and jurisdiction assumed by each individual Indian

government would leave the federal and provincial governments with varying degrees of residual power as well. This could lead to a proliferation of litigation and jurisdictional disputes between governments. The Committee (perhaps with this possibility in mind) does recommend that a specialized tribunal be set up to decide disputes with other governments over these agreements.

Although individual bands must be allowed to develop their own governments at their own pace, it would seem more practical to develop a statement


The Impact Of The Penner Report

Law Firm of Soonias and Pennington

SASKATCHEWAN INDIAN      APRIL/MAY 1984      SPECIAL EDITION p25
The Impact of the Penner Report of the areas of jurisdiction in which all Indian governments may legislate once they are ready. The transition period could be handled by provisions allowing federal or provincial laws to continue to apply until the particular Indian nation formulated its own policy and legislation on the matter. This may be what the Committee has in mind in the third legislative measure it recommends be adopted by the federal government: Legislation under the authority of section 91(24) of the Constitution Act 1 designed to occupy all areas of competence necessary to permit Indian First Nations to govern themselves effectively and to ensure that provincial laws would not apply on Indian lands except by agreement of the Indian First Nations government.

Here again, it is not clear what exactly the Committee has in mind. The mention of section 91(24) does raise another question however, and that is, what power the federal government would retain under section 91(24) to legislate with regards to Indians and their lands if and when all the bands have achieved self-government. Retention of this power for the time being may provide some reassurance to bands concerned about the loss of federal trusteeship and being taken over by the Indian governments they feel unable to control.

How would band government be paid for?

The committee recommends special one-time funding be available to bands to help them develop a constitution and membership code and put their government in place.

The Committee suggests that Indian government administration initially be paid for by grants and transfer payments from the federal government. It recommends long- term entrenched financial arrangements and resource revenue sharing be implemented to finance Indian governments. Settlement of land claims and Indian control and development of their land base, it is hoped, will eventually provide secure finances for Indian governments.

As to the cost of administration of Indian governments, the Committee hired a national accounting firm, Coopers and Lybrand, to assess what proportion of DIAND funds are absorbed in administration costs. The firm concluded that; at present, duplication of administrative structures within the DIAND and between DIAND and Indian bands and councils result in almost one-quarter of all program funds being spent on administration.

They felt that the administration costs of Indian bands need not exceed those of other small organizations or businesses. At present the accounting requirements imposed on Indian bands result in far greater costs, however. In addition, transfer of administrative responsibility to bands has increased costs because of expanded advisory and monitoring jobs within the Department. Cooper & Lybrand advised that these costs be reduced by doing away with the Department's advisory and monitoring services. The cost of accountability systems within the Department itself also increased costs of program delivery even further.

Making Indian governments accountable for expenditure of funds to their own people rather than to DIAND should, it is suggested, reduce administration costs. Doing away with DIAND advisory and monitoring functions and leaving Indian governments free to set their own priorities should further reduce costs, the Committee says. Accountability to their people should insure Indian governments exercise their powers wisely and that the people are in turn protected against wrongful use of these powers.

It will take great courage and dedication for the Indian nations to assume the reins of self-government and succeed in establishing efficient and effective administration after living under the suffocating paternalism of DIAND for the last hundred years or more. There will inevitably be a difficult transition period as bands struggle to overcome years of dependency and poverty in order to train themselves how to run a responsible government. One hopes the federal government will fulfil its trust responsibilities until such time as effective Indian self-government is fully achieved.

What will be the economic base for Indian governments?

The Committee sees economic development of lands and resources as the ultimate source of financial security for Indian governments. No one needs to be told how inadequate such resources are at present. The Committee simply says that a new relationship between Indian First Nations and the federal government should result in the provision of an adequate land and resource base and the settlement of claims. No mention is made of the fact that the vast majority of land and resources belong to the provinces. Provinces such as B.C. Alberta and Ontario have made no secret of their positions on Indian land claims. The Committee does recommend though that bands be given the financial resources necessary to enable them to carry on research and negotiations to settle their claims.

In the meantime, until such claims can be settled and an adequate land and resource base provided, the Committee recommends Indian bands be provided with substantial funding to enable economic development. It also recommends that sufficient funds be provided to enable Indian nations to build up their community infrastructure (e.g. roads, schools, housing, water, sewer, etc.). The present level of development in many Indian communities suggests that it will take many years and much money to provide these communities with basic services at a level comparable to most while communities. The Committee suggests using the $345 million Native Economic Development Fund to establish a special development bank


The Impact Of The Penner Report

Law Firm of Soonias and Pennington

SASKATCHEWAN INDIAN      APRIL/MAY 1984      SPECIAL EDITION p26
The Impact of the Penner Report under Indian control for this purpose.

How would Indian lands and resources be protected and claims settled?

Each Indian nation would have full control of its own lands. This would include the power to decide upon methods of land holding and land management on reserves. The Committee recommends that the federal government institute changes to the Canadian Constitution to recognize Indian rights to lands, waters and resources in all areas now or in the future considered Indian lands.

In the meantime, the Committee recommends that an official Registry of Indian First Nation lands be set up. It would record all lands under the control of Indian nations, as distinct from federal or provincial lands.

As to Indian rights in other lands based on treaties or aboriginal title to traditional hunting and trapping areas, the Committee seems to recommend recognition of these rights. It advocates joint control of these lands and allowing Indian governments to share in decision making on actions affecting these lands and resources. The Committee also suggests resource revenue sharing with Indian governments to enable the Indian nations to become self-sufficient.

The Committee recommends that the federal government give high priority to providing a land base for those Indian communities now without a reserve. It also says the federal government should give priority to fulfillment of land entitlements and settlement of other claims through a just and effective land claims process.

They recommend that a new claim settlement process be decided through bi-lateral negotiations with the federal government and set out in legislation. A new claims settlement process should be shielded from political intervention. It should be set out in legislation so that it cannot be readily changed... Claims should be negotiated between the government and the claimant with a neutral party to facilitate the settlement. Where a settlement cannot be reached, there should be access to a quasi-judicial process. For Indian governments to participate effectively in claims negotiations, they must have adequate financial support, the Committee says.

Pre-Confederation treaties and other rights should be recognized and claims should not be regarded as superseded by law. The Committee also recommends that settlement agreements be limited to those matters specifically negotiated and that the doctrine of extinguishment be eliminated from settlement of claims.

How are the Crown's trust responsibilities secured in all this?

The Committee's report on the trust relationship between the federal crown and the Indian nations begins with this question:

Does the existence of a trust imply that Indian people are like children or wards of the state, or does the concept refer to solemn promises between nations that must be honoured?

While rejecting the view that Indian nations or peoples are wards of the state, the Committee does agree that in the past the Crown's trust responsibilities have been honoured more in the breach than in being fulfilled. The Committee therefore says that a new approach to this relations is needed.

In the renewed relationship proposed by the Committee, the old distorted paternalistic notions of protection of Indian people and nations would be discarded. In the new era, the federal government's primary responsibility would be to promote self-government in a manner that reflects the rights and interests of the Indian First Nations, the Committee says.

The report sets out five basic elements of the new trust relationship put forward by the Committee:

  1. Recognition of Indian First Nation governments with powers and jurisdiction appropriate to a distinct order of government within the Canadian Federation;
  2. Fiscal arrangements suited to self-governing entities;
  3. A secure economic base, including land, water and resource rights, which, together with educational and community services appropriate to modern society would strengthen the culture and economy of First Nations;
  4. Economic settlement of claims to restore capital trust accounts resources and lands to the First Nations;
  5. Legally enforceable agreements between the federal government and the First Nations to implement the arrangements.

Together, these elements make up the Committee's central proposal for Indian self-government.

The trust responsibility of the federal government would therefore be to recognize the right of First Nations to self-government and to provide the resources to make this goal possible. The Committee says federal duties and responsibilities should be defined in the Constitution and in legislation


The Impact Of The Penner Report

Law Firm of Soonias and Pennington

SASKATCHEWAN INDIAN      APRIL/MAY 1984      SPECIAL EDITION p27
so that they are legally enforceable. Certain other protections are also to be set up to fulfil the Crown's trust responsibilities.

The Ministry of State for Indian First Nations Relations should be responsible for advocating and protecting Indian interests against competing interests, even where encroaching interests are those of the federal government.

The Committee also suggests an independent officer like an ombudsman to monitor the governmental actions affecting Indians and their rights. This officer would report directly to Parliament. It is also recommended that federal funding be made available to set up an advocacy office under Indian control. Funds should also be provided to allow this office to represent the interests of Indian nations in legal disputes affecting their rights.

Indian revenue trust funds should be transferred from the Department to each Indian nation for administration by its government. Capital monies should go to a trust management system set up by the nation to be used for the use and benefit of the people. Once funds are transferred, the Minister of Indian Affairs would be relieved of any future responsibility for their management. Claims could still be made, however, for mismanagement occurring before funds were transferred.

Once funds are transferred and Indian governments set up and provided with adequate resources and secure fiscal arrangements, the Crown 5 trust responsibility will be fulfilled through its Ministry of State, the monitoring agency and an advocacy office funded by the government.

None of these agencies can effectively protect or advocate Indian interests until treaty and aboriginal rights more fully identified and defined, however. Until this is accomplished, existing legal principles and case law will continue to erode Indian rights.

Where does all this put treaty rights?

Treaty and aboriginal rights are entrenched in the Canadian Constitution. They have yet to be fully identified and defined, however. The Committee recommends that the right of Indian nations to self-government be one of these rights entrenched in the Constitution.

Many bands may see Indian self-government as ultimately denying them their treaty rights. Once an Indian government attains sufficient resources and becomes self-sufficient, it will be expected to use its own resources to. provide services such as education and health care to its people. These services are considered by many to be treaty rights owed by the Crown to Indian people in return for surrendering their land years ago.

The Committee's report does not deal directly with this question.

Although claim settlements may be difficult to ever achieve, the Committee does recommend joint control and recognition of hunting and fishing rights as well as resource revenue sharing over traditional areas surrendered under treaty. Long term entrenched financial arrangements and transfer payments are to be made to provide funds for services such as education and health care. These funds would be used to provide such services directly by the government of the Indian nation according to its own priorities. Achievement of self-government itself would ultimately be fulfillment of the most basic of all aboriginal and treaty rights.

What if bands want to stay with the Indian Act and Indian Affairs or try new ideas for awhile?

Although the Committee suggests that Indian Affairs be phased out within five years, they give no basis for this time projection. Bands wishing to institute self-government must apply for recognition. It should not be forced upon them before they are ready. Bands wishing to stay under the Indian Act system may assumably do so. There is no suggestion in the report that the Indian Act be repealed in the near future.

Realistically as well, it is difficult to see how Indian self-government can be fully implemented and Indian Affairs abolished in five years time. It has taken over a hundred years to build up the present system. It should be apparent that a carefully planned transition period is essential if Indian self-government is ever to become a reality in Canada. It would be the ultimate breach of the Crown's trust responsibility to simply dump responsibility for self-government on bands not yet ready for it after years of forced dependency at the hands of the federal government and DIAND.