Volume 41, Number 2: March/April 2007

Toward a New Policy Paradigm for First Peoples

The current policy paradigm surrounding Aboriginal issues is locked within a very narrow compass of possibility. The two major ideas that emerged in the last decade were the proposals around the Governance Act, rejected by most First Nations leaders, and the Kelowna Accord, endorsed by the Assembly of First Nations, but dead in the water thanks to the current regime. The former involved imposing a one-size-fits-all governance model onto First Nations; the latter involved providing much-needed resources for infrastructure and social programs. Neither proposal involved a change to the current policy paradigm.

For the party of the Right, that paradigm involves mouthing grudging respect for Aboriginal rights without actually treating them seriously, together with more resources for band-aid solutions, with “modernization,” “progress” and “advancement” the buzzwords. For the party of the Far Right, the paradigm involves ignoring or suppressing Aboriginal rights, reducing the resources offered for band-aid solutions, and even more bombastically intoning the same set of buzzwords.

Here are some ideas for genuinely progressive change to the current paradigm.

1) Take Aboriginal rights seriously.

Start from the presumption that Aboriginal and treaty rights are the foundation of policy. This means taking the Supreme Court of Canada at its word, developing a “liberal and generous” approach to Aboriginal and treaty rights. It means honouring and respecting the cultural distinctiveness of Aboriginal peoples and paying close attention to oral histories and oral understandings. These are not mere slogans. If turned into serious policy, it would mean developing frameworks whose basic goal is not to “modernize,” but rather to support and invigorate traditional cultural forms in a contemporary context. What follows offers some substantive ways of moving in this direction.

2) Remove colonial power structures.

Replace the Indian Act with a First Peoples’ Governance Recognition Act, which would empower local Aboriginal authorities with province-like responsibilities (in early 1984 the Trudeau cabinet killed a proposal for a First Nations Recognition and Validation Act, which would have worked in a similar fashion). Determination of so-called “Indian status” would be turned over to those authorities. This Governance Recognition Act would not mandate the form of First Peoples’ governing institutions; it would simply have the function of recognizing the systems developed by Aboriginal communities and developing appropriate institutional linkages to the broader polity.

3) Provide a new basis for financial support.

Develop a specific revenue stream that draws off a portion of resource royalties or taxes from non-renewable resource development on traditional lands. A portion of this stream could go directly to the local Aboriginal communities affected by such developments, and a portion to a general fund for improvement of Aboriginal community infrastructures. Aboriginal communities should enjoy the same infrastructural amenities as non-Aboriginal communities, and the way to achieve that is not to relocate them, or every five years develop a new housing program. The way to achieve it is to provide an ongoing financial base.

4) Share the land.

i. Develop joint-management arrangements with all rural and remote Aboriginal communities for the traditional land base of the First Peoples involved. Such plans should recognize and strongly support those communities that wish to keep the hunting economy as a base of wellbeing by deploying strong environmental-protection measures. Both social and material infrastructures can be developed in ways that would support wellbeing in the context of a contemporary hunting economy. Those communities prepared to support non-renewable resource development must have a role in planning (and finding environmental mitigations) and establishing direct benefits from such development.

ii: Remove “certainty,” whether through the former extinguishment model or the current exhaustion model, as the basis of modern treaties. Instead, develop treaties that do not surrender or exhaust Aboriginal rights and title, but rather affirm them. The treaties would amount to versions of the joint-management arrangements discussed above, and specific revenue-sharing or resource-sharing provisions appropriate to the First Peoples involved.

5) Encourage urban communities.

Allow for the creation of legal community structures (now called bands) and governance bodies in urban contexts and among groups of Aboriginal peoples including so-called “non-status Indians” and others who may have Indian but not band status who do not have band affiliation. Such communities within the broader community would promote cultural distinctiveness in an urban context.

6) Develop culturally based social programs.

The delivery of health care, education, social assistance, child and family services and justice should all be under the authority of First Peoples’ governance structures, and funded on a block-transfer basis similar to provincial authorities. Creative alternatives to the existing delivery models, based on the traditions and values of the specific community, should be encouraged.

There is much more that needs to be done–and urgently–but this outlines what a set of policies based on a substantive application of Aboriginal and treaty rights might look like. The overall principles are in place through the legal framework developed in the last two decades by the Supreme Court of Canada. But political leaders have neither the understanding nor the political will to move in anything like this direction.

Governments of the Right and the Far Right have alike done all in their power to ignore, confine, limit and foot-drag on the principles enunciated as constitutional law by our courts. Perhaps we should be much more direct with the ruling elites of our time, and simply demand of them that, in the area of policy making with respect to First Peoples, they obey the law.