ANDREW WEBSTER & ASSOCIATES CONSULTANTS IN GOVERNMENT ADMINISTRATION AND FISCAL RELATIONS DIVISION OF 3784100 CANADA INC. 24 Fourth Avenue, Ottawa, Ontario. K1S 2K9 Tel.: (613) 234-1587 Fax: (613) 234-0413 eMail: [email protected]
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on Aboriginal Issues: Analysis of Historical and Current Constitutional, Legislative, Intergovernmental, and Political Issues
First Draft 7 January 2005 Final Draft 12 March 2005
COPYRIGHT Andrew Webster
Foreword
This paper examines the development of the status quo regarding the delivery and funding of programmes and services to Registered Indians in Canada. It also considers how this status quo may change in light of litigation, and especially in light of a forthcoming and historic federal-provincial conference on Aboriginal issues.
This paper is a response to requests, by colleagues and clients, for Athe straight goods@ on a complex and obscure subject. It was written specifically with a view towards educating the stakeholders, at the forthcoming First Ministers’ Conference, about the history of intergovernmental disputes over fiscal responsibility for programmes and services to Registered Indians. The specific intent is to remind the provinces, and First Nations organisations, that strategic agreements about “closing gaps” should involve a clear resolution of the question of who is obligated to pay for achieving the results.
I have found it necessary to explain the basics of the legal perspectives of the various stakeholders. No attempt was made to be complete in this regard because the intent of this paper is not to assist any plaintiff or defendant in a court action. The objective is simply to demystify a complex and timely topic enough for it to receive wider debate in provincial, federal, and above all First Nations circles.
Anyone wanting analytical assistance regarding litigation, negotiation, or legislation development will have to explore that possibility privately with me. The issue of responsibility for Indian programmes and services continues to be my main research and academic interest, and indeed it is central to the negotiations and litigation support that comprises my professional life. I am always pleased to debate this matter.
This is the final version of a draft that has circulated widely in recent weeks. I appreciate the feedback that I have received from readers, particularly in the law profession, and I am pleased that these suggestions were of a grammatical nature. No commentators indicated logical or factual errors. The test remains as it was in the first draft (7 January 2005) apart from the correction of typographical mistakes.
I retain copyright although there is no restriction on the dissemination of this document. It may posted intact on websites of stakeholders for free downloading. It may be quoted in publications provided that the origin is cited.
Andrew Webster Ottawa 12 March 2005 [email protected].
2 Contents
Summary...... 1
Background - The Constitutional Landscape...... 3
The Constitutional Landscape - General ...... 3 The First Nations Interpretation Summarised ...... 7 The Federal Interpretation Summarised ...... 10 The Provincial Interpretation Summarised...... 11
Development of the Fiscal Status Quo...... 15
Intergovernmental Relations During the Indian Policy Period (Pre-1964)...... 15 The Defining Year: 1964...... 17 Consolidation of the Reserve-Based Fiscal Demarcation...... 20 The Fiscal Landscape Today...... 23
Justifying the Status Quo -Federal Rationale ...... 27
Interpretation of Treaty Obligation ...... 27 The Moral Obligation Rationale ...... 28 The Admit Nothing Strategy...... 31 Balancing the Risks ...... 34
Prognosis ...... 36
Summary
It is unclear, from the treaties or the Constitution, whether the funding and administration of Indian programmes and services (P&S) are federal or provincial jurisdiction. The federal Crown provides a minimum level of P&S - mainly on reserves - on Amoral@ and Ahumanitarian@ grounds rather then obligation. At the 1964 Dominion- Provincial Indian Affairs Conference, the Crown tabled a list of moral, historical, and legal reasons why the provinces should take over P&S administration with declining federal contributions. This was rejected, and four decades of dispute followed.
First Nations (FN) people - and some would argue all Aboriginal peoples - are in essence Afiscal lepers@ or Afiscal footballs@ which neither order of constitutional government wants responsibility for. The on-reserve Indian population - and perhaps those people who have recently left reserves - are probably the most deserving of the Afinancial pariah@ terminology. It seems inconsistent with a modern, western, industrial democracy that the welfare of hundreds of thousands of people is a matter of intergovernmental avoidance. Few people in the general population are aware of this financial dispute; most imagine that the federal Crown is entirely responsible.
The Crown actually feels that provincial services should extend onto reserves under the cost-sharing arrangements that apply to the general population. Disagreement on this translates into under-funding and service gaps. Neither government feels obligated to invest the sums needed to alleviate poor conditions on reserves. The Crown routinely tries to be rid of, or to limit, Indian P&S costs; e.g., Health Canada is Aoffloading@ large numbers of chronic patients onto provincial primary care facilities. Opposition to offloading was the dominant issue for First Nations for four decades.
The Crown could, if it wished, exercise its constitutional right to enact Indian-specific P&S legislation. This could solve accountability problems and allow for fast-tracking the recognition of FN jurisdiction in these areas. Yet in 1964, Cabinet decided that P&S legislation would suggest a legal responsibility and raise expenditures. The Crown=s court defence assumes that power to adopt a law does not translate into a positive duty to use that power: the Crown is not responsible for inaction on its part to assist Indians, no matter how desperate their situation is. Thus, the Amoral grounds@ rationale is inconsistent with fact and at odds with the protective duties of a fiduciary.
The first Premiers= conference on Aboriginal issues since 1964 is anticipated to occur in late 2005 or early 2006. The September 2004 Premiers= Health Conference, which has already occurred, may suggest what to expect. In such high-stakes negotiations the provinces are willing to hurt the Federal Government to advance their aims. Yet despite common ground with the provinces, the Assembly of First Nations (AFN) declined to negotiate any issue including the federal financial offer for additional First Nations health funding. It fell silent when fiscal responsibility was raised by the premiers.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 1 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected].
Later the Conservatives demanded legislation for the main Indian P&S areas. This would occupy provincial ground and assume financial responsibilities. Despite potential for healing fiscal wounds with the provinces, and appeal to FNs insistent on federal acknowledgement of responsibility, the AFN is disregarding this development. Its interests seem to be jurisdiction, immediate cash in some programme areas, and escalator-driven funding. Now some of its regional constituents question this dismissiveness and disinclination to confront the Liberals. It remains to be seen whether they will compel the AFN to work with the provinces to press the Crown, under the television cameras, on responsibility. The combined legislation-responsibility issue has the potential to animate the next conference, if not polarise First Nations along party lines.
The present Liberal Government has rediscovered the perceived necessity, first realised by the Pearson Liberal Government in the early 1960s, that the provinces must be coerced into programmes and services financial partnerships. Thus, at present there is every reason to assume that, at the forthcoming conference, the Prime Minister will table significant new investments in targeted programme areas and challenge the provinces to follow suit. It is unlikely that the 1964 proposal for the provincial take-over of federal services will be repeated. In retrospect, that proposal ranks with the old Indian Policy in terms of historical folly in Canadian Indian affairs. The new federal approach will doubtless be more subtle but have the same ultimate objective.
If First Nations again downplay the responsibility issue, some people will ask whose side the AFN is on. If it is left to the Tories to elevate the issue, then Liberals at all levels will have a bigger problem. At the next Premiers= meeting on Aboriginal issues, one cannot expect the provinces to argue against the absurdity of the fiscal status quo unless First Nations show some interest. They must lead this battle, if they still care.
If they miss the opportunity to resolve the responsibility matter, we will continue on our march towards court decisions that have potentially catastrophic impacts on intergovernmental fiscal relations. The Crown=s willingness to fight legal challenges, on grounds that it has no responsibility and that it cannot be compelled to legislatively acknowledge responsibility, is playing a dangerous game. Federal officials await Amiracle@ court decision that someday throws billions in Indian expenditures onto the provinces. This is a most questionable basis for national public policy. The fiscal shocks could well ignite a political firestorm. The status quo for dollar transfers and taxation powers would likely require adjustment. The Constitution might need reopening. First Nations might revolt. There is no favourable scenario if the federal government won its Amiracle.@
Thus, the forthcoming federal-provincial conference on Aboriginal issues will be an historical turning point judged on whether or not it resolves the responsibility question.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 2 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. Background - The Constitutional Landscape
The Constitutional Landscape - General
Here we examine what the Constitution suggests about which order of government is responsible for providing programmes and services (P&S) to Indians resident on- reserve and off-reserve. There are profoundly polarised differences of opinion on what the Constitution=s wording actually means in terms of P&S obligations. These opposites are explained by the AIndian Problem@.
At one time the Indian Problem, as it was openly called, was that Indians resisted the most coercive measures to affect their civilisation, advancement, and ultimate enfranchisement into non-Aboriginal collectivity. To the federal and provincial governments, the modern Indian Problem is not that Indians frequently live in crowded, run-down social housing served by poor socio-sanitary infrastructure, suffer chronic and elevated levels of social and medical pathologies, or often reside in Awelfare colonies@1 where welfare payments amount to the staple commodity in the weak local economy. Today=s Indian Problem is the magnitude and trajectory of the dollar costs that these conditions imply. These expenditures constrain government spending in more popular areas of activity.
Indians would not be such a fiscal problem if there were not so many of them, and if their population would not grow as rapidly as it does. The on-reserve population is about half a million persons, consisting of 458,600 Status Indians and a few others who tend to have Aboriginal roots. The remaining 38% of Status Indians reside off-reserve. Over the next 20 years the Indian population will increase by a remarkable 34% with the greatest growth occurring on the 614 federal reserves. Vast disparities will emerge, between provinces, in the size of the Registered Indian cohort; e.g., Registered Indians will comprise almost a third of Saskatchewan=s total population. Many of these will live on reserves which do not contribute to the tax base. Many of those living off-reserve will be economically disadvantaged, if not in receipt of public assistance.
1This term originated in: Webster, Andrew (1993). The Political Economy of Indian Relief in the Territorial North, 1927-1973. Carleton University, MSW thesis. It is further developed in the Report of the Royal Commission on Aboriginal Peoples and in: Allan Moscovitch and Andrew Webster (1996). AAboriginal Social Assistance Expenditures@, in Susan Phillips (ed.) How Ottawa Spends 1995/95: Mid-Life Crises. Ottawa: Carleton University Press.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 3 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. The federal government is currently spending about $8 billion in 2004/05 to support basic, unavoidable P&S on reserves. These fail to meet the real level of need. The provinces additionally contribute perhaps one or two billion towards hospital care when reserve residents are sent off the reserve to access services that are not available locally. The costs of P&S to the off-reserve rural and urban cohorts are a matter of speculation. Four to five billion is a reasonable estimate for these costs borne by the provinces, with a minor contribution from the federal government through the cost- sharing arrangements for the general population. The provincial burden includes the non-Status Indian population, and the Metis populations, for whom the federal government refuses any Aboriginal P&S support.
Thus, the magnitude and trajectory of the Indian Problem alone are reason for the federal and provincial governments to use every excuse possible to avoid involvement in services to Indians. This means exploiting every iota of ambiguity in the Constitution, and the treaties, with a view towards cost avoidance.
Indian programmes and services fall into a constitutional grey area. First, understand that the Constitution only recognises the federal and provincial orders of government, and thus, its concern is with the division of powers between these two orders. There is consequently no mention of Indians, other than about which of the two orders of government is responsible for them in a general sense. Responsibility for Indian P&S therefore has to fall under either of federal or provincial jurisdiction. The possible exception is one of the recent, constitutionally entrenched treaties, which suggests a measure of First Nation responsibility with respect to a particular self-governing group.
Questions of programmes and services to Indians are really questions about responsibility for Indian welfare. These questions cannot be (or have not yet been) answered simply on the basis of who has general responsibility for Indians. Things are much more complex - perhaps needlessly so, but understandably so given the magnitude of the financial issues.
It is not entirely clear, from the treaties or from the Constitution, whether the funding and administration of programmes and services2 to Indians fall under federal or provincial jurisdiction. Put another way: the answer may seem clear to some, while others would differ absolutely, and the courts have not yet defined the allocation of this responsibility. Neither of the Constitution=s orders of government acknowledges ultimate, legal responsibility for providing Indians with P&S even on reserves.
It is not being overly dramatic to describe First Nations people - and some would argue all Aboriginal peoples - as Afiscal lepers@ or Afiscal footballs@ whom neither order of constitutional government wants. The on-reserve Indian population - and perhaps those people who have recently left reserves - are probably the most deserving of the term Afinancial pariahs@. It seems inconsistent with a modern, western, industrial democracy
2 The definition of Aprogrammes and services@ here does not include the management of Indian lands or Indian moneys, which are clearly federal and have a federal legislative basis.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 4 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. that the welfare of hundreds of thousands of Aboriginal people is a matter of intergovernmental avoidance.
Under the Constitution Act (1982) and its predecessor (and component) the British North America Act (1867), the provinces have jurisdiction (i.e., lawmaking responsibility) in areas that are not central to the national interest. Provincial jurisdiction includes the main, high-cost Aprogramme areas@, including preventive health and curative health, social services including social assistance, social housing, and education. Neither level of government disputes provincial legislative primacy in areas such as these.3 The dispute is over the extent to which Indians may be included in the realm of this provincial primacy.
Section 91 (24) of the BNA Act assigns the federal Crown legislative responsibility for AIndians, and lands reserved for the Indians@. The Constitution thereby reaffirms the pre-existing imperial and colonial doctrine of Crown responsibility towards Indians, but it fails to set out clearly which level of government has delivery or fiscal responsibility in respect of measures to ensure their well-being. This raises questions of great importance. Does neither of the two orders of government have an obligation towards Indian welfare? Do the provinces have complete responsibility? Is the responsibility entirely federal? Is the responsibility shared? In the latter case, should the provinces provide the services while the federal government pays? Should the provinces pay for services delivered by federal departments? Does the federal government have a guarantor role respecting programmes and services, or is it vice-versa?
Fiscal responsibility and jurisdiction, in Indian P&S, are not only unclear but they are intertwined and difficult to separate. Section 35 (1) of the Constitution Act provides no further clarification; it merely affirms existing treaty and aboriginal rights without any attempt to identify these rights. Is there, for example, a treaty right to health? Such a right implies federal responsibility to furnish, or at least guarantee, what is necessary for treaty Indians to enjoy a reasonable level of well-being. In fact, none of the treaties is worded such that a clear and undeniable obligation for P&S is placed on the federal Crown or on a provincial government.4 One can also argue - as the federal government is prone to do - that modern land claims agreements which include reference to P&S are not treaties at all, but contractual agreements. It is open to lively debate whether the Crown=s provision of basic P&S to Indians is the result of right, or simply the consequence of Canada=s inability to get the provinces to assume the problem.
3The federal government is only able to influence provincial programme areas when a province agrees to the terms of a cost-sharing agreement: Abide by these terms or no federal contribution.
4Limited programmes and services obligations are spelled out in certain claims settlement agreements of the past three decades. Only one of any significance stipulates P&S fiscal responsibility: the Cree Education and the Cree Health provisions of the James Bay and Northern Quebec Agreement (1975). However, despite s. 35 (3) of the Constitution, Canada disputes that these agreements constitute treaties, and therefore Canada not recognise these obligations as constitutional rights.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 5 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. The federal government claims that its provision of programmes and services, whether on-reserve or off-reserve, is a discretionary activity. It provides a minimum level of P&S to Indians - mainly on reserves - on what it describes as Amoral@ and Ahumanitarian@ grounds rather then a court-enforceable obligation. The Crown feels that its treaty or fiduciary duties do not include P&S, and most important, it is unlikely that such duties are demonstrable in court. The federal government could be spending much more than it is today on improving the social and economic conditions of First Nations, yet it is prepared to tolerate service gaps and third world conditions on the grounds that the federal government is probably not responsible for taking any action at all. This is, essentially, a tendency to prefer to err on the ungenerous side - a questionably moral approach for a fiduciary.
The federal perspective holds that it is up to a future plaintiff to prove that the Crown has treaty, fiduciary, or other obligations in respect of P&S. The Crown is waiting for a plaintiff to try to prove that it has otherwise assumed fiduciary obligations, either by a statute or by a fiduciary undertaking. The latter, presumably, could include the common law notion that he who pays for, or cares for, something long enough can eventually acknowledge a degree of responsibility through his involvement. It is quite possible that the federal Justice Department is being naive in underestimating the extent to which the Crown=s historically deep P&S involvement can be made to stick.
The jurisdictional word-game is hardly theoretical. It is at the core of internecine federal-provincial jurisdictional bickering over the costs of Indian programmes and services. The dispute extends on-reserve, where contrary to popular opinion, the federal government feels that the provinces should be extending their own P&S under the same cost-sharing arrangements that apply to the general population. On reserves this dispute translates into a chronic situation of service gaps and avoidance of investment. For instance, neither government feels legally obligated to invest the vast sums necessary to alleviate disproportionately poor health and housing conditions. Indeed, the federal government constantly strives to divest itself of costs for Indian P&S, or to limit these costs, when there is any possibility that the relevant province can be compelled to pay. In provincial and First Nations circles, this strategy is popularly referred to as Aoffloading@ or, in government circles today by the less accusative terms “downloading“ and “re-alignment”. In other cases, federal officials avoid descriptors and repackage the matter as Aprovincial allegations that the federal government unjustly coerces the provinces into paying for services to Indians@.
One must also consider the anomalous constitutional landscape respecting the Province of Newfoundland and Labrador (formerly known simply as “Newfoundland”). This Province is home to numerous communities of Mi’kmaq Indians, Innu, and Inuit. However, the Terms of Union between Newfoundland and Canada (1949) made no mention of Indians or other Aboriginal inhabitants5. This departure from past practice,
5 An excellent discussion of the Newfoundland constitutional context can be found in: Hanrahan, M. 1993. “The Lasting Breach: The Omission of Aboriginal People From the Terms of Union Between Newfoundland and Canada and its Ongoing Impacts”. Report prepared for the Newfoundland Royal Commission on Renewing and Strengthening Our Place in Canada.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 6 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. when a colony joined the federation, is widely considered to be a flaw in the Terms of Union. The Innu Mi’kmaq and Innu consider themselves Registered Indians, yet they were not brought under the Indian Act, and consequently they received markedly less direct federal attention than bands elsewhere generally got. Indeed, they were not “Aboriginal” in the eyes of the Law, in a manner akin to the situation that Inuit found themselves in until 1939.
In the Inuit instance, S.C.R. Re: Eskimos decided that Inuit were Indians constitutionally although the Indian Act did not apply. The Innu and Mi’kmaq lack such clarification. Having no recognised bands and no reserves, these people were treated much the same as other residents of the new province. They received their programmes and services from provincial departments, which, until recent years, tended to be limited by the Province’s relative poverty and restricted ability to raise revenues.
After years of complainants, 800 of the Province’s 5,000 Mi’kmaq became the Conne River Mi’kmaq (Miawpukek First Nation) in 1984. In 1986 an “experimental reserve” was established at Conne River. The process of registering approximately 2,000 Innu under the Indian Act is well under way. Those living at Sheshatshiu and Davis Inlet have been much in the news in recent years due to extreme poverty conditions and social problems including suicide. Even before the federal government agreed on a process towards their Registration, Indian Affairs was compelled by media pressure to begin major investments of an emergency nature. The Province remains vocal in pressuring the federal government to accelerate the process of granting Indian status and establishing the communities as reserves. This is in large measure, and by the Province’s own admission, so that programmes and services will become primarily federal responsibility and thus they will improve6.
The First Nations Interpretation Summarised
During the 1940s, 1950s and early 1960s, some bands petitioned their provinces asking that provincial services to be extended to them. These bands were desperate to receive services as good as those that were available off-reserve, and by and large they had little sense of the legal landscape. To Indian Affairs during the late 1950s, these approaches were a sign that all Indians would eventually agree to provincial administration and provincial funding. This would prove to be a fundamental miscalculation.
Forty years ago, the provinces nearly walked out of the last federal-provincial AIndian welfare@ conference after the Pearson Liberal Government announced its plan to withdraw from service delivery on-reserve and off-reserve. Indians did not participate in
6 One major statement to this effect, by Premier Tobin, was made on 9 November 1999. See http://www.releases.gov.nl.ca/releases/1999/exec/1109n07.htm .
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 7 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. this conference. Over the following months they learned of, and started to grasp, the implications of the federal proposal. The question of who should deliver and pay for P&S had not previously been an issue to most bands. Few if any bands delivered publicly funded services at a time when little local delivery of services was permitted. Indians were, at the time, being denied many services and those available to them, through the federal government, were typically far below the provincial norm; i.e., Treasury Board did not authorise the provision of welfare services at the higher provincial standards until 1964.
Following the 1964 Conference, it did not take long for Indians to realise they were being positioned as a fiscal football in a game between federal and provincial governments. They rapidly took an interest in the responsibility question and, by about 1966, it had become rare to find a band unprepared to state that the federal government is ultimately responsible for the provision of its P&S. This is when the word Aoffloading@ came into widespread use in Indian and in provincial circles. The National Indian Brotherhood, now the Assembly of First Nations, was founded in order to challenge the federal government’s plans to make Indians Acitizens of the province@ without distinction in service regime. The AFN helped to get the infamous 1969 White Paper of Indian Affairs Minister Jean Chrétien shelved. Yet a core premise of the White Paper - gradually federal withdrawal from Indian P&S involvement - would be upheld by all subsequent Liberal and Tory Governments.
The early 1970s saw the emergence of a strong, Canada-wide Atreaty right@ approach to programmes and services. The Federation of Saskatchewan Indian Nations (FSIN) arguably remains the main proponent of this approach. In the early 1970s alliances formed between Indian organisations and their provinces on the offloading issue. In 1973, for instance, the FSIN and the Saskatchewan Government agreed that Saskatchewan should not take up off-reserve social services costs that were being abandoned by Indian Affairs. The result of this was the first of very few instances of Auploading@ costs back to the federal government.
From the early 1970s until the mid-1990s, the AFN and its regional constituents lobbied hard to have the federal government admit to federal constitutional responsibility for P&S. The chorus of protest was constant, and when significant offloading events periodically occurred, it became positively shrill. Curiously, this period saw little national level co-operation with the provinces - or between the provinces - on the federal responsibility issue. Nonetheless, some of the regional Indian organisations worked with sympathetic provincial governments on specific offloading problems, and on at least one occasion a province strongly considered an Indian proposal to seek a Supreme Court reference on treaty right to P&S. The AFN, curiously, made no co- ordinated attempt to bring the provinces together as allies on this matter of common fiscal ground and strong shared emotions. Opportunities were thus lost, arguably due to poor preparation in the FN camp. Lost opportunities include the discussions that led to repatriation of the BNA Act and the failed Charlottetown Accord negotiations.
The First Nations approach to P&S rights is summed up by the term Atreaty right to...[a
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 8 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. particular service]@. Of these, a treaty right to health has been the most often cited. First Nations differ on the depth of their understanding of the basis of this rights claim. To some, these rights are grounded in treaty, pure and simple, and no other argument is necessary. In fact, only one numbered treaty (Number Six) definitely contains what can be construed as a health clause. First Nations also cite historical guarantees of protection from famine and sickness, made by federal officials, and captured in the oral tradition or obscure archival records. It is not the intention here to discount the worth of these memories and writings. The point is simply that the treaties are unspecific about responsibility for programmes and services.
Treaty right is the dominant, but not the only, Indian argument for entitlement. Bands in British Columbia have cited, as a federal obligation regarding health care, Article 13 of the terms of union under which British Columbia joined the Confederation.7 The federal reading of this is typically dismissal of potential Indian rights:
AWe interpret the word >care= as including medical, educational, and welfare care.@ According to Dr. P. E. Moore, Director of the federal Indian Health Services, the Justice Department has ruled that Indians have no more right to free medical services than other Canadians.8
Some people forget that those First Nations who are not under treaty cannot have a treaty right to programmes and services. On and off the AFN has seemed confused on this issue. It has, for instance, periodically stressed Atreaty right to health@ without mention of precedent, moral obligation, constitutional obligation, and other arguments that are especially important to the numerous non-Treaty First Nations.
While First Nations overwhelmingly believe in federal responsibility, it would be wrong to assume that they are in solidarity over all major financial issues respecting P&S. On at least one occasion, one of the AFN=s regional affiliates sacrificed federal services to its off-reserve brethren, after receiving federal promises that the savings would be re- invested in on-reserve services. At least one important Indian leader privately agreed to make only superficial protests after he was assured that the social services savings would be redirected to reserve-based agencies. It is perhaps telling that, in this case, the public accounts do not support that the reinvestment promise was ever fully carried out. Thus, the fiscal demarcation at the reserve=s edge can be a source of division, and even bitter politics, when Indians must make hard choices over scarce funds.
The objective here is to illustrate positions on responsibility for programmes and services, not to catalogue legal rationales. The immediate point is that First Nations almost universally favour of 100% federal responsibility on rights-based grounds. Many,
7 AOrder of Her Majesty in Council Admitting British Columbia into the Union@. Order-in-Council dated 16 May 1871. See Schedule.
8 Holmes, Alvin I. (1961), The Social Welfare Aspects and Implications of the Indians Act, pp. 50- 51. MSW thesis, UBC.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 9 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. or most, have been disinclined to dialogue with their relevant province when this would seem to undermine the special bilateral relationship with the federal government. Later in this paper, we consider whether First Nations are losing their collective interest in pursuing this 40-year battle for federal acknowledgement of responsibility.
The Federal Interpretation Summarised
The federal government admits no constitutional, treaty, or fiduciary responsibility towards funding Indian programmes and services, even on-reserve. Federal counsel continues to state this clearly in the courts. The Crown claims that it has always funded Indian health and welfare (etc.) measures on Ahumanitarian@ or Amoral@ grounds, because the provinces have refused to pay and the Indians lacked the money to pay. This is a curious claim, especially considering that federal responsibilities and federal provision of P&S often pre-dated the formation of the provinces. Regardless of such historical factors, the federal government implies that its funding of P&S to Indians is merely assisting with a provincial problem, that the provinces are responsible for programming on-reserve just as they are responsible for P&S of general application to all people off-reserve.
At the core of the federal view is the constitutional division of powers respecting the so- called programme areas: that the provinces have exclusive jurisdiction to make general health and welfare laws which apply to all provincial residents. There are other programme areas in the provincial realm, but these two, which include education, are the costliest and also the highest-profiled in the public mind. The federal government sees no distinction between fiscal responsibility and lawmaking responsibility; ergo, provincial lawmaking capability means provincial administrative and fiscal obligation. By this reasoning, federal P&S to Indians is a matter of policy not obligation.
The federal government is highly conscious that it has the power to unilaterally assume - some would argue Aclarify@ or Aadmit@ - responsibility for Indian P&S by enacting Indian-specific programme legislation. This would over-ride any provincial general laws that might to apply to Indians, and in essence, occupy the area constitutionally. However, Cabinet has positively decided against such legislation (e.g., an "Indian Health Act") on the grounds that it implies admission of fiscal responsibility and ultimate accountability.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 10 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. The Provincial Interpretation Summarised
Generally, the provinces hold that P&S to Indians on-reserve are entirely the financial responsibility of the federal government.9 All of the provinces have made high-level complaints about absorbing costs of services to off-reserve Aboriginals. They continue to make their position known whenever the opportunity arises. Note that in almost all cases the provinces imply ARegistered Indian@ when they complain about costs of AAboriginals@.
In an ideal world, muse provincial officials, the federal government would reimburse the provinces for all service to all Aboriginals, regardless of the place of their residence. Federal payments would apply also to non-Status Indians and Metis to whom the federal government provides practically no services. Few Aboriginal people would disagree in principle with this provincial demand. However, the Registered Indian population - particularly the on-reserve population - opposes the extension of services to other Aboriginal groups if this means subdivision of the current AAboriginal envelope@. In fact, if new moneys were allocated to the other groups, the Indians would cry foul that the new funding should go to them. This is a sad commentary on the magnitude of unmet P&S needs in First Nations communities.
At this point in history it is a thoroughly impractical proposition for the full range of federal P&S to be extended to off-reserve Aboriginal populations. The provinces know this perfectly well. Their complaints that the federal Government should fund all Aboriginal P&S simply illustrate the extreme polarisation of perfect-world viewpoints. It costs and risks nothing for the provinces to complain with off-reserve Aboriginal groups that the federal government ought to be paying even off-reserve. Much of this is actually theatre, and a formal clarification of federal responsibility on-reserve would probably satisfy most or all of the provinces. This would lead to further federal investment on reserve, and thus less demand by reserve residents for provincial services that are available only off-reserve.
The provinces jealously guard their programmes and services jurisdiction. Section 92 (16) of the British North America Act (1867) gives them residual power over Amatters of a merely local or private nature in the province@. This is taken to encompass roads, infrastructure, education, social measures, health services, and so on. The Supreme Court has ruled that this translates into extensive authority over public health as a Alocal@ matter; health being arguably the most important, or at least emotionally charged, area of jurisdiction. Section 92 (7) furthermore provides powers over
9The only clear exception to this rule is Section 14 of the 1975 James Bay and Northern Quebec Agreement (JBNQA), under which Quebec accepted primary fiscal and administrative responsibility for Quebec Cree health and social programmes, and 25% of education costs under other provisions. Note, however, that Quebec Cree communities are on federal land that is not technically reserve land. Despite this, Quebec avoids on grounds of Afederal lands@ any in-community costs that are not specifically spelled out in the JBNQA. It will not, for instance, provide social housing in Cree communities.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 11 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. hospitals, asylums, charities, and benevolent institutions, excepting marine hospitals which are federal. The terminology use is archaic, and reflective of the almost complete non-existence of organised government departments at the time of Confederation.
The provinces have exercised their powers in all the main programme areas. They have not legislated specifically in respect of Indians because it appears to be an exclusive federal right, and besides, it invites obligation.10 Moreover, jurisprudence indicates that the ability of provinces to legislate respecting Indians is limited to their inclusion in measures of general application11.
The provinces are often sensitive to the issue of Aboriginal jurisdiction. Some have implied that they want their general legislation to apply to Indians (i.e., welfare rates on- reserve and child welfare standards) but they do not want the fiscal responsibility that this can be said to imply. Some have opposed the idea of either FN or federal jurisdiction in the programme areas. Note the use of past tense here. Since the late 1990s, there has been a marked increase in provincial openness towards FN jurisdiction, particularly, when this seems to have no intolerable impact upon the provincial service regime. A province usually needs to feel confident that FN jurisdiction will not mean that, some day, a cash-strapped community will be knocking on the proverbial provincial door so that social assistance payments can be met.
The provinces remain committed to the principle, dating from 1963, that Indians should be able to access the same sort of basic programmes and services as those available to other provincial residents. Who provides these is the dispute. All the provinces claim that 100% federal fiscal responsibility is due to reasons other than simply federal jurisdiction to make laws. The arguments that they cite include: treaty obligation; fiduciary obligation; constitutional obligation; and the historically high level of federal involvement.
10Notwithstanding infrequent provincial legislation which recognises FN organisations as delivery agencies for provincial programmes, and provincial co-enabling legislation in respect of self-government agreements. The only provincial FN programmes act appears to be Loi S-5 of Quebec. Pursuant to the James Bay and Northern Quebec Agreement (1975), this recognises Cree management of health and social services within the settlement area. Originally S-5 was general legislation applying to all health boards in Quebec. However, a modernised law (S-4) applies to other establishments, leaving S-5 which still applies to the Crees as, de facto, the only Aboriginal-specific health statute.
11 Section 91 (24) of the BNA Act assigns the federal Crown legislative responsibility for “Indians, and lands reserved for the Indians”. The Indian Act (s.88) reflects this special federal prerogative. The Kruger ruling (Kruger v. R, [1978] 1 S.C.R. 104 [1977] 4 W.W.R. 300 at 304, 34 C.C.C. (2d) 377, 75 D.L.R. (3d) 434, 14 N.R. 945) determined that: “Under s. 88, Indians are brought within provincial regulatory regulation in the absence of treaty or federal statutory protection. The provincial law, however, must be of general application and not in relation to Indians.”
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 12 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. The provinces know well that, even before some provinces existed, the federal government provided Indians with a range of destitute relief, medical relief, public health, economic development, education, child welfare, and other services such as engineering. Indeed, the federal infrastructure behind these services was sometimes more sophisticated, in the early years, than its counterpart for non-Indians in the provincial realm. In some areas of involvement, such as destitute assistance and social housing, federal services existed when there was no provincial (or municipal) counterpart. In some cases there was no provincial legislation governing the federal areas of involvement. In other cases provincial rules were flaunted by Indian Affairs, the lead federal department intent on doing whatever necessary to civilise and assimilate Indians.
The provinces are mindful of disparities in service level - and especially entitlement - between reserve communities and neighbouring municipalities. They imagine, for instance, that restrictive social assistance policies on reserves could cause reserve residents to seek social assistance from the nearest provincial office. Such people might even lave their reserve in search of better benefits, but in any case it is often simple for applicants to reside on reserve and establish a Afront@ address off-reserve. Until intergovernmental information sharing improved, in recent years, Abenefits shopping@ and Adouble-dipping@ were more problematic than today.
The provinces continue to ensure that the matter of federal fiscal responsibility surfaces regularly at federal-provincial financial conferences. Mainly this has concerned social services but the principle for other services is the same. For instance, the Minister of National Health and Welfare reported, to the Minister of Indian Affairs, on the September 1989 fed-prov health meeting:
I am writing on behalf of the Provincial Ministers responsible for social services to bring to your attention concerns they have with respect to the financing of services to Indians both on and off reserve. The provinces wanted to take the opportunity to convey their displeasure with what they perceive to be an attempt by the federal government to shift to them responsibility for social services to off-reserve Indians. They view this as a withdrawal by the senior level of government from an area that, in their opinion, falls under federal jurisdiction. Their primary concern was with respect to the financial strain on provincial budgets that any shift in responsibility for off-reserve Indians would create...12
Offloading concerns are also a regular subject of intergovernmental discussions at ADM and DM level. The provinces continue to object as a matter of principle, but none of these discussions seems to alter federal policy.
12 Hon. Perrin Beatty, Minister of National Health and Welfare to Hon. Kim Campbell, Minister of State for Indian Affairs and Northern Development, 24 November 1989. Italics mine.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 13 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. Today, the offloading issue is best described as a chronic irritant and a source of ritual provincial complaint. Occasionally an acute programmes and services issue precipitates a high-level political protest. For instance, in May 1999 the Newfoundland Premier supported the Innu – who were in dire socio-economic circumstances – in an open letter to the Indian Affairs Minister:
Confusion over jurisdiction, coupled with the federal government's unwillingness to exercise its full jurisdiction, is the source of many of the difficulties the Province, the Innu Nation and the Bands have had in discussions regarding the devolution of programs and services and self-government negotiations. The Province is limited in what it can do in devolution by laws of general application. The Province does not have the legislative competence to legislate specifically with respect to Aboriginal people. This is an exclusive federal responsibility under s. 91(24) of the Constitution Act, 1867. So many of the issues we have been discussing with the Innu concern jurisdiction for programs and services. These are issues that could be resolved to the satisfaction of the Innu if the federal government were to exercise fully its jurisdiction, as it does elsewhere in Canada.13
Recall that Newfoundland’s “Indians” were not recognised as such when Newfoundland joined Confederation in 1949, and so until recently federal programmes and services were largely absent. Also of interest is the Provincial explanation that the Province, lacking Constitutional ability to legislate with respect to Aboriginals, is helpless to remedy matters by enacting special measures.
13 Rt. Hon. Brian Tobin, Premier of Newfoundland to Hon. Jane Stewart, Minister of Indian Affairs and Northern Development, 31 May 1999.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 14 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. Development of the Fiscal Status Quo
Intergovernmental Relations During the Indian Policy Period (Pre- 1964)
The years preceding 1964 are relevant for two reasons. First, they saw the development of federal programmes and services for Indians before similar provincial services - or in some cases the provinces themselves - even existed. It is this parallel system that the federal government, in the closing years of this period, schemed to transfer to the provinces. Second, most of the pre-1964 period was characterised by federal disinterest in provincial P&S - when they existed - applying to Indians. This disinterest included the routine disregard of provincial standards of assistance, in favour of federal standards which were typically less generous.
Note that Aintergovernmental@ relations during the pre-1964 period did not involve band councils. Until the end of this period, what Indians thought hardly mattered, and indeed legislative measures came and went with a view towards keeping Indians out of politics. This included making it, for many years, an offence for legal counsel or consultants to assist Indians directly. Band councils were not considered governments. In 1964 it was still common for the local Indian agent to attend band council meetings, record the minutes, offer guidance, and when necessary to say no.
At one time, the federal government exerted an iron grip over Indians regardless of their place of residence. The Indian agents controlled the lives of Indians whether these Indians lived on a reserve or not. Departmental policy discouraged provinces and municipalities from assisting Indians in any way. Indians in municipal areas, destitute or not, were customarily apprehended and returned to their reserve of origin. They were sometimes apprehended even if they were in gainful employ and posing a problem to nobody, except perhaps to a White man complaining to an agent of an Indian taking his job. Indians on reserves often had to work on federal-run farms or else be denied rations, medical assistance, and other succours whether at federal or band expense. This does not diminish the fact that on some reserves, often in Ontario, some bands and families were able to support themselves. This success was despite occasional measures aimed at ensuring that their success did not come at the expense competing White people in the vicinity. Even the economically successful Indian - a rarity - was considered a ward of the Crown, and subject to arbitrary measures under the wide powers given to Indian agents by the Indian Act.
Under the old Indian Policy, the federal Crown clearly accepted Indian relief as a federal financial responsibility when there were no Indian funds to confiscate and apply to the relief problem. Provincial or municipal meddling was thought ruinous to the advancement of Indians. The Akeep clear@ perspective is reflected in the Old Age
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 15 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. Pension Act of 1927. This statute specifically excluded Indians from receiving the new cost-shared pension. Before the 1951 Indian Act amendments, provincial laws such as health did not apply to Indians unless a federal regulation specifically allowed their application. The 1951 Indian Act reversed this, making provincial laws apply in the absence of Indian-specific federal laws.
The federal policy goal was to enfranchise Indians. It was assuredly not, as Indian Affairs proclaimed in the early years of the new millennium: AMaking Canada a better place for First Nations and Inuit People@. The goal used to be to enfranchise Indians so they would become a provincial problem. This was not seen by the provinces as a potential threat because, until well into the 20th Century, the provinces had little in the way of public programmes and services to offer anyone. The real problem was the federal government=s own: individual Indians resisted enfranchisement, and hardly any reserve opted to become a municipality.
Offloading and cost avoidance only became serious issues after the federal government concluded that its Indian relief system (which functioned from 1880 to 1964) was not defensible in modern times. The old relief system separated assistance into Amedical relief@ and Adestitute relief@. The end could be seen in the late 1940s and early 1950s, when the cruelty and contradictions of this system were exposed during hearings of the parliamentary Joint Committee on Indian Affairs. When Indians officially became citizens under the law, the continuation of an advancement and assimilation policy became counterproductive. There was no longer a justification for denying Indians the kinds of P&S available to other citizens. Why were Indians getting Arelief@ - under eligibility conditions reminiscent of the punitive Elizabethan Poor Laws - then other citizens had access to modern preventive and remedial welfare services? The main challenge was that some level of government would have to pay for bringing Indians into the rapidly forming Canadian welfare state.
As the 1950s progressed, the enormity of the cost of providing modern health and social services to Indians became apparent. Federal cost-sharing legislation for the general population, respecting unemployment assistance and hospital services, appeared in the mid-1950s. Indian Affairs officials successfully convinced the Central Agencies that it would be unaffordable to shoulder all of the costs, in these sectors, for off-reserve Indians. Cost-sharing with the provinces was essential. Consequently, the provinces were forced to accept to provide the applicable services to off-reserve Indians or there would be no deal for the general population. These cost-sharing statutes did not contain Indian-specific provisions. They simply assumed that Indians fell into the general, provincial realm. Previously, the federal government customarily paid provincial and benevolent hospitals per diems (or annual fees) to provide services that federal clinics and hospitals could not. The federal government began to scale back its off-reserve medical services in line with the forced provincial assumption of off-reserve medical responsibilities.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 16 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. The old relief system did not end immediately with this increasing provincial involvement off-reserve. For a while, as universal (Afree@) programmes and services for the general population rapidly improved in scope and generosity, the gulf between mainstream public assistance, and assistance through federal or band moneys, became more pronounced. The federal government continued to provide comparatively ungenerous relief-in-kind whenever possible, in large measure because of fears that Indians would convert cash benefits into alcohol. The federal Family Allowance continued to provide Indians with tins of condensed milk and yellow rubber boots for children. Rather than offer grants or subsidies to buy building materials for building houses, Indian Affairs furnished crates of nails, tar paper, and wood. It was observed in 1961, when the relief system was still providing discriminatory and lesser assistance to Indians, that:
At the time of Confederations, there was little concern about welfare, and this responsibility was left to the local authorities. When welfare costs threatened local areas with bankruptcy, the provinces, and eventually the federal government, became involved. Because of the cost and complexity of welfare problems, local responsibility, which is just an extension of individual responsibility, became a social responsibility. Both the federal and provincial governments have it in varying degrees, regardless of their assets. With Indians, the situation appears to be at the confederation level.
If a band has sufficient funds, it is expected to pay for a large part of its welfare services. Although the poorer bands are supported in these services by the federal government, this is done as a matter of Agrace,@ and not by a legislative acceptance of responsibility. Little wonder that the bands with assets feel that they are discriminated against. This is Aone source of the lack of ambition and responsibility so often noted.@14 The idea of social responsibility must be accepted for Indians, both to improve the conditions of the poorer bands, and to refrain from stifling the initiative of the more progressive bands.15
The Defining Year: 1964
The year 1964 marked the end of the relief system and the beginning of the status quo respecting Indian programmes and services. The federal position that the provinces are responsible, both on-reserve and off-reserve, was conceived during 1961 and 1962, by officials of Indian Affairs and Justice who felt that future costs of P&S to Indians would be unaffordable. The current federal position on responsibility was first announced, by the Liberal Pearson Government, at the 1963 and 1964 Dominion-Provincial Conferences on Indian Welfare. The provinces rejected this interpretation of history.
14 c.f., Hawthorn, The Indians of British Columbia, p. 204.
15Holmes, Alvin I. (1961), The Social Welfare Aspects and Implications of the Indians Act, pp. 50- 51. MSW thesis, UBC.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 17 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. There has been no subsequent conference to deal with this issue. At the 1963 Conference, the federal government got the provinces to agree to the principle that Indians should have access to the same types and level of services as other Acitizens of the province@. Many of the federal programmes and services, especially in the social and education sectors, were markedly deficient when compared with what was available in the provincial realm. The provinces agreed to the principle of equal access in knowledge of this. They did not seem to know that they were being set up.
At the 1964 Conference, Indian Affairs tabled a long list of moral, historical, and legal reasons why the achieving this equal access required the provinces to provide the services with gradually declining federal contributions. Some of the provinces nearly walked out of the Conference upon hearing this. Some wanted to debate the proposition, but all had suspicions. The lack of Indian involvement in these discussions meant that Indian reactions to the federal proposals would be delayed.
The provinces were acutely aware that the federal government was historically the prime provider, and usually the sole provider, of assistance to Indians. The risks implied by the takeover proposal were daunting and the incentives were few. To the provinces, the withdrawal of federal P&S involvement required sounder reasons than the ones Ottawa was putting forward. The enormity of the matter seemed clear: Ottawa wanted out of a massive responsibility that it had assumed over a period of many decades. The federal government acknowledged that enormous costs would be required and that it did not want to continue paying at the same level. The provinces were also leery due to uncertainty whether this massive adjustment was possible under the constitutional status quo. Although Indian Affairs cited instances of Indian bands wanting access to provincial P&S, and feeling discriminated against by the province, the provinces knew that Indians, as a collectivity, were not so willing to accept a change from federal administration.
The 1963 segment of the Conference had already examined the condition of reserve economies as well as the state of Indian education and labour force participation. The situation and prognosis were grim. In fact, Indian Affairs had done its best to shock the provinces into financial involvement by accentuating the seriousness of the economic and social challenges, and the need for financial partnership. This approach seems to have backfired by helping to scare the provinces off. Provincial taxpayers would have to shoulder additional costs, which with time would become large, while reserves remained exempt of most taxation and generally unable to contribute owing to their level of poverty.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 18 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. Taking over federal administration on short notice made the federal proposal even less appealing.16 The provinces were also suspicious because of the federal government=s initial suggestions that federal contributions should diminish over time. Possibly the most objectionable aspect was federal refusal to contemplate ironclad guarantees of perpetual federal funding particularly on-reserve; so, the provinces simply refused to take over an increasingly problematic federal responsibility, even when the federal government was prepared to sign non-binding agreements to reimburse the costs.
It is fair to say that the federal position, tabled in 1964, triggered four decades of financial conflict and shrinking of federal involvement in Indian P&S. Offloading and cost-avoidance still constitutes the status quo. The federal moral, historical, and legal rationale for greater provincial involvement remain unchanged. However, the Crown has since added some minor and tenuously significant court cases to its list of arguments, while avoiding potentially contradictory topics such as the rule of historical precedent.17
The shortage of provincial interest put the federal government in a trap of its own making. The equal access principle was federal in origin and all the provinces now agreed with it. Without provincial assistance, federal departments now had to translate the principle into reality by closing the more intolerable service gaps. This involved an expensive expansion of reserve-based administrative presence as well as physical infrastructure including buildings and sanitation. Indian Affairs was compelled to greatly expand its social services unit so that it mirrored, in each province, the relevant provincial system.
The Cabinet made its decision against future Indian-specific programme legislation as part of its plan to secure provincial buy-in into its proposals. In large measure, this prohibition arose from concern that legislation would suggest that the federal government is legally responsible for administering and funding services for which Parliament had established a legislative basis.18 This would, of course, ruin the revised
16Ontario at first agreed in principle. Under the 1965 Indian Welfare Agreement it took over welfare administration from Indian Affairs. This proved a mistake which other provinces noted. The Agreement (still in effect) reimburses Ontario for costs according to a schedule of provincial programmes. As these evolved and new programmes were introduced, the federal government minimised its costs by procrastinating over updates to the schedule. This display of minimal good faith helped to dissuade any province from signing into an Indian Welfare agreement under Canada Assistance Plan Act (1965).
17The document that you are reading is a policy-making tool. Readers seeking the specifics of the legal perspectives discussed herein will have to consult other sources.
18In fact, various Indian Act provisions over the years have amounted to piecemeal, and limited, federal occupation of some areas including public health and education. From a federal perspective, this does not amount to acceptance of general responsibility in these fields. Canada appears to feel that it can, by repealing legislation, legislatively leave an area of jurisdiction respecting Indians although this seems to be an unsound assumption which is subject to challenge. Consider that the Indian Act formerly forbade the application of provincial laws of general application to Indians, unless the Indian Act (viz., a regulation under the Act) specifically allowed the provincial law to apply. Later, the Indian Act stated that provincial laws always apply unless they are inconsistent with the Act. By federal choice, the Indian Act
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 19 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. federal position that the provinces are responsible because their laws of general application apply.
Without legislation, Treasury Board (TB) would have to take on the prime role in establishing standards and benchmarks for federal programmes and services to Indians. In 1964 the TB approved the abandonment of the last vestiges of the ration relief system, in favour of cash welfare payments according to the provincial scales of assistance. This was with a view towards easing the transition to full provincial administration. However, because the dream of provincial administration was not likely to be realised in the foreseeable future, Indian Affairs found that it had to absorb significant new costs connected with the improved benefits and standards.
Consolidation of the Reserve-Based Fiscal Demarcation
Today=s federal-provincial fiscal demarcation at the reserve's boundary is, according to the federal Crown, principally caused by provincial refusal to pay costs on-reserve. This is not entirely correct in light of history.
First, until the 1950s, recall that Indian Affairs as a rule actively discouraged the extension of provincial services on reserves, and sometimes even late into the period it objected to off-reserve Indians receiving provincial services. Second, the fiscal boundary surrounding Indian reserves is a result of: (a) the provinces being coerced into accepting off-reserve Indians as recipients under cost-shared schemes for the general population; and (b) the federal government=s progressive withdrawal of funding for off- reserve Indian P&S. This withdrawal accelerated after the 1964 Conference until an Aon-reserve: federal / off-reserve: provincial@ situation existed. Contrary to popular belief, this demarcation is not official, but Aunder duress@ particularly on the federal part.
The federal cost-sharing legislation of the late 1950s marked the first wave of offloading onto the provinces. The second wave followed the Canada Assistance Plan Act (CAP) of 1966. This was primarily about welfare services but it included certain medical social services. Once again, the provinces had to choose between significant new federal funding, or nothing if they insisted on federal payments for off-reserve services to Indians. Some provinces later decided that, because CAP made no mention of Indians, they could refuse services to Indians leaving the reserve and seeking social assistance during the first year. This example is instructive. Because of a strong out-migration towards urban areas, "first year off-reserve" quickly became, and remains, the most contentious off-reserve issue with the provinces. Provinces like Saskatchewan managed, with FN collaboration, to throw some back various costs to federal departments by means of establishing residency requirements.
today says very little that could be construed as inconsistent with provincial programmes and services legislation.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 20 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected].
Thus we see that by about 1970, when all the provinces had signed into CAP, a very ragged line had been drawn in the sand. Some national level federal programmes continued to operate under federal administration outside reserves. Examples of these include the Non-Insured Health Benefits (NIHB) Programme and the Post Secondary Education Programme, both these programmes with no clear provincial equivalent. Health Canada did consider terminating NIHB during the 1980s. The idea was to restrict services to reserve residents and then, gradually, harmonise NIHB with provincial medicare.
Non-insured benefits were previously provided only when the recipient was in undisputed medical need and lacked the capacity to pay. Federal officials knew that this was fictional; in reality, the benefits were usually provided with little or no inquiry into the recipient=s ability to pay. Protests by Indian and Inuit interest groups forced Health Canada to reverse this policy by publicly stating that NIHB is free, universal, and without any residency requirement. This was an awkward policy concession to a government making no treaty, fiduciary, or constitutional acknowledgements. Health Canada continues to try to control its NIHB costs by reducing the extent and generosity of benefits coverage. Interestingly, some benefits, such as free elective patient transportation, have recently received a new lease on life because of their utility in physically transferring diagnostic and treatment costs to provincial establishments.
Anomalies in the on/off reserve division of involvement, where federal and provincial services co-existed, persisted into the early 1990s. Most of the residual off-reserve federal delivery occurred in regions where no comparable provincial infrastructure was in existence. In 1974 Indian Affairs still directly funded service delivery in 65 mostly remote off-reserve Indian communities.19 This department tried to make the best of the geographical anomalies through obtaining memoranda of understanding with the provinces to formalise the complex geographic divisions. As late as 1985, an agreement with Alberta confirmed a north-south division along an arbitrary Motherwell- Hunter Line, which was subject to complex exceptions. None of these MOUs were contribution agreements of the sort Cabinet wanted. It has been observed that they had more resemblance with truce or armistice agreements. The provinces refused to sign anything that suggested agreement with the federal 1964 proposals; ergo, the MOUs concerned who would pay for the time being, rather than who ought to pay. This made them unenforceable when Cabinet later decided to stop honouring them.
These Afirst year off-reserve@ agreements persisted, and were sometimes renegotiated, throughout the 1980s. Finally they were terminated primarily as a federal response to
19 For a picture of federal-provincial fiscal relations for Indians at the time see: ARemarks to Federal-Provincial Conference, Indian Affairs Item - Hon. Guy Favreau, Minister of Citizenship and Immigration@, n.d. PARC file 1/1 1-2-8 Vol. 4, inclusive dates 1968 to 1971, title: Administration - Federal- Provincial Conferences - General. Also see: APerceptions and Positions on Fiscal Responsibility for First Nations Social Assistance: Lessons Learned From the Historical Record@ (External report to INAC by Andrew Webster of Atelier Pika Ltd., December 1995).
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 21 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. increased on-reserve costs that followed Bill C-31. This Indian Act amendment allowed certain disenfranchised persons to regain Registered status and, thus, become eligible for residence on their band=s reserve. Indian Affairs estimated that Bill C-31 on-reserve migration would peak, then drop off, and a maximum take-up of consequential programme costs would occur at the peak. The migration peaked by 1987 or 1988. Migration onto reserves was actually less than the frightening scenarios that were circulating within Indian Affairs. By 1990 only 10% of the new registrants lived on- reserve, and soon it slowed to a trickle. Nonetheless, C-31 caused significant uptake in social assistance, and a moderate uptake in child welfare costs. It was also clear that an increase in social housing funding was unavoidable.
The Cabinet was hesitant to spend more on Indians so less Anon-discretionary@ Indian programming was earmarked for cannibalisation. In 1990 it was decided to expand reserve-based Indian child welfare services funding using the savings gained from terminating the off-reserve charge-backs. "First year off-reserve" was by far the greatest off-reserve expenditure. Manitoba was getting $24M annually for off-reserve social services. This was the first to go in 1992, resulting in accumulated bills of $60M by 1994. Saskatchewan and British Columbia followed in 1993, while Alberta negotiated a side deal which INAC got the better of. The impacted provinces received serious fiscal shocks. They remain hypersensitive to the prospect of further offloading in any programme area.
This offloading event - or rather a co-ordinated sequence of events - produced fierce and sustained Western media coverage which was critical of the Conservatives then in power, and who were heavily represented in the western provinces. Such is the entrenched nature of the fiscal responsibility issue that the Mulroney Government was willing to risk votes in key areas. Indeed, the Tories were almost exterminated during the 1993 election, albeit for a host of reasons additional to this one.
It should be evident now that federal ownership of reserve land is not, to the federal government, a factor in its provision of P&S to reserve residents. The Crown considers itself merely a property owner, and therefore provincial laws of generally application apply as they would in, say, a federal office block in downtown Calgary. In the reserve context this often translates into awkward circumstances where provincial licensing is required even though provincial inspectors and provincial funding are not involved. Adding to the complexity is the occasional refusal of the First Nation involved to discuss regulatory matters with the province. Such obstacles are sometimes overcome by the threat of withholding funds until the First Nation agrees to talk with the province.
Since the 1950s, Treasury Board has issued spending authorities to allow the discretionary provision of federal programmes and services to non-Indians who visit, or reside on, reserves. These have tended to fall into disuse in recent years. This is because the federal government has tended to avoid paying for any on-reserve non- Indian (includes Non-Status Indians and Metis) when it can manoeuvre the province to do so. In fact, there is now a complicated patchwork of minor agreements and understandings so that, for instance, some provinces reimburse bands for services to
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 22 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. non-Indians such as welfare and child protection. Quebec, for several decades, has paid social assistance to any reserve resident asking for it. This is not any indication of acceptance of on-reserve fiscal responsibility. Instead, it is a means of providing a provincial service to non-Indians, in light of denial of a similar federal service, while avoiding a policy distinction that discriminates against Indians. The relevant province does not always assist non-Indians on reserves. For example, these people may be ineligible for social housing from either government. This example includes Quebec.
Finally, as a rule, Indian Affairs only factors a reserve=s Registered Indian population into that reserve=s funding levels. When significant numbers of non-Indians reside locally, the result is a race-based competition for scarce resources which can generate elevated levels of tension. In this manner the fiscal status quo can be a source of ill- concealed and sometimes cruel racial discrimination.
The Fiscal Landscape Today
The on/off reserve fiscal demarcation remains largely as it was a decade ago. The principal change in the fiscal landscape is rapid growth in patient traffic from reserves to provincial hospitals. The main offloading issue today concerns medical services. This is not a new issue, but in light of certain trends in Indian health, offloading of patients is assuming greater importance than it has had for decades.
Following a massive programme of clinic and hospital building in the 1940s and early 1950s, Health Canada (as we call it now) almost ceased making major capital investments aside from the rebuilding of existing facilities. It began to coast on its existing Indian health system. Gradually, the sometimes-impressive federal hospitals for Indians were phased out or taken over by provincial authorities who were left with no alternative. Contributions to off-reserve Aprovincial@ hospitals, for Indian patients, began to dry up, particularly during the 1970s.
Today we are seeing a very strong, long-term growth trend in diagnostic and curative hospital services consumed by reserve residents. The costs of this are rising at an even greater rate due to proportionate worsening of the health status of the caseload. For instance, there is sharp growth in the number of dialysis cases. These patients often go from low cost to high cost, and then to extreme cost, in short period of time. During and since the September 2004 Premiers= Conference on Health, the federal government has been emphasising that the provinces are the primary providers of health care to First Nations people.
This is true to the extent that Health Canada and Indian Affairs have extricated themselves from much of their previous involvement, and to the extent that the federal government is unwilling to significantly expand reserve-based services. The federal department continues to avoid necessary large investments in clinics, and in social housing and the socio-sanitary services which strongly influence health conditions. The
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 23 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. FN diabetes epidemic20, and the related chronic patient caseload, are worsening faster than originally thought and with alarming financial implications. A situation of Aoffloading by stealth@ is therefore occurring. The federally funded clinic system has been re- oriented towards the efficient processing, and out-transport, of patients needing to access diagnostic and curative services available only in off-reserve provincial facilities. Money is always found to pay for “free” patient transportation when the efficiency of this flow is at stake.
To FN people this medical necessity to travel inordinate distances is a question of access and wait time. To Health Canada, the send-out policy amounts to sound management of fixed budgets. To the provinces, the high and rising influx of patients amount to a growing financial burden and a source of deep concern. These patients are often unwelcome. They arrive from different cultures and with no possibility of charging back the costs. The anxiety that they instil is perhaps best explained by the poor ability of provinces to predict trends in cost and volume regarding Indian patient traffic. Health Canada is both unable and hesitant to provide statistics to help the provincial service providers plan their services. Additionally, the relevant First Nations routinely oppose any exchange of information - even when it has been rendered anonymous - often due to perceptions that such information tends to be used against them when funding levels are calculated. There are even examples of First Nations who oppose release of aggregate diabetes statistics from their communities over fear that high diabetes rates will lead to high insurance premiums. The provincial service points are caught in the middle of these conflicts.
Analogue modelling, of the off-reserve FN populations, suggests that alarming increases in medical service consumption on-reserve can be expected. In particular, the provinces suspect that the severity index of diagnosed diabetes cases, their age profile, and the rate of co-morbidities, are worsening faster than imagined although neither Health Canada nor FNs have been forthcoming with their internal cost and volume analysis of this sort. Consequently, the provinces are hyper-sensitised to the growing fiscal burden of providing diagnostic and curative health services to FNs people sent from reserves to provincial service points. The provinces are particularly mindful of the trajectory of the diabetes / chronic caseload.
In its attempts to manage envelopes that the provinces would allow to expand, Health Canada continues to whittle down what it considers discretionary services. In the case of NIHB, various drugs and medical supplies are gradually dropped from the benefits lists, or else put on the unpublished lists where special permission is needed. Frequency limitations are tightened. Bulk packaging and special issue requirements are imposed. Services are sometimes discontinued. Health Canada through the NIHB Programme formerly paid most of the provincial health plan premiums for FN people. Most of this was phased out gradually, generally with the provinces deciding to waive the premiums for FN people on reserves. To be correct, the federal government had
20 It easily meets the WHO diagnostic criteria for Aepidemic@, and is widely described as such by the medical professionals concerned with it.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 24 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. manoeuvred them into this position.
Offloading of costs continues to inflame federal-provincial relations, and without regard for potential impacts on federal-provincial relations or relations with First Nations at regional or national levels. For instance, during 2004 the following occurred:
i. INAC stopped its social assistance payments to Indian students attending provincial universities, even when these students came from a reserve household that qualifies.
ii. Chiropractic coverage, under the NIHB Programme, was stopped within weeks of Ontario de-listing chiropractics from its provincial medical plan. Ontario merely provided a reason to think that Health Canada could get away with this particular reduction.
iii. Health Canada stopped, after three months of travel, patient transportation funding when patients travel off-reserve for more than three months to access dialysis treatment that is not available locally.
The third example is especially instructive. The province must then pay for relocation, social housing, and welfare for these patients. Health Canada is presumably glad to be rid of this caseload burden at a time of vast and escalating out-migration of high-need chronic cases towards provincial hospitals. As long as the patient exodus can be maintained, Ottawa has little incentive for making substantial investments in diagnostic and curative services on reserves.
It would be quite wrong to suggest that everyone at Health Canada sees these patients as burdens to be unloaded rather than people to be helped. Many - probably most - are well intended but guided by over-arching policy directives. They are not encouraged to think of human consequences; the corporate culture is such that they make such decisions based on fiscal and political determinants. Also, in fairness, it is generally thought that offloading is ultimately in the best interests of the patients. It is widely believed that provincial establishments are better positioned to provide the services. This is usually true, but it circles around the fact that federal services might be as good - or better - if such services existed. This being said, it remains a fact that offloading is almost always rationalised in dollar terms. The final decision, to implement a measure to offload patient or client costs, is typically made on the basis of affordability in light of existing resources.
Minor fluctuations in the on-reserve population can have significant effects on the management of federal P&S envelopes. Some imagine that the federal government has a grand strategy to force an out-migration of reserve residents towards municipal centres, all with a view towards reducing the reserve population and avoiding costs. Why would the federal government under fund local services - particularly social housing and economic development initiatives - if this were not the objective? Persons familiar with the federal government=s inner workings realise that the federal
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 25 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. government is not clever enough to do this and get away with it. It can also not keep a secret of such magnitude for very long.
The funding levels for on-reserve services are established purely on the basis of affordability when compared with other government priorities. The Crown simply does not feel legally obligated, to correct conditions such as crowded and substandard housing, no matter how bad these conditions get. This does not, however, alter the fact that chronic under-funding is a real and significant pressure upon reserve residents to leave.
The provinces, periodically, have been negatively impacted by federal fears of migration back onto reserves. At present, the overall migration trend towards major centres is especially strong in the Prairie provinces. Winnipeg, Saskatoon, Regina, and Calgary for example have significant Registered Indian populations. Sometimes Indians leave a reserve seeking educational or employment opportunities - or simply housing - and then fail in their relocation attempts due to culture shock, educational unpreparedness, or even racism. Many of these migrants fall into the welfare trap and become administrative burdens upon municipal authorities or provincial departments. This out- migration seems chronic and unresponsive to economic indicators.
Shortages of housing and other funding, in the communities where the migrants originate, often preclude their return. They are marooned and often unwanted, sometimes even at home. Parental neglect, abuse, and prostitution have been linked to this unfortunate migratory cohort. Once again there is no sense of legal liability, on the part of the Crown, to do anything about this. This situation involves a financial saving that is worth the human consequences. If not, the federal government would act on the problem.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 26 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. Justifying the Status Quo -
Federal Rationale
Interpretation of Treaty Obligation
The Crown=s interpretation of its P&S treaty obligations is literal and narrow. Supreme Court decisions over the last decade (e.g., Nowegiick, Simon, and Sioui) have required a treaty interpretation that, when there is ambiguity, a fair, large, and liberal interpretation in favour of the Indians must apply. Despite this, the federal government views the Aliberal interpretation@ directive as an optic for the judiciary rather than an optic for programme or legislative change. This principle has not impacted, in any measurable way, on federal P&S policy. It will likely not make much impact unless interpreted by the courts, on a case by case basis, and federal departments are told by the courts precisely what changes they must make. One senses that the Crown feels that at least its main P&S involvement - education and health - is sufficiently comprehensive to withstand any liberal court interpretation. By this reasoning, a fiduciary duty would already be met if, in fact, it does exist.
An example of the narrow, federal treaty interpretation is as follows. Most Indians would assume treaty to be a clear basis for their right to federal services. Only Treaty Six contains what is clearly a health clause and even this remains disputed despite there being an interesting and obscure decision of the Exchequer Court of Canada dating from in 1935 (Dreaver v. The King):
...the treaty stipulates that a medicine chest shall be kept at the house of each Indian Agent for the use and benefit of the Indians at the direction of the Agent. This, in my opinion, means that the Indians were to be provided with all the medicines, drugs or medical supplies which they might need entirely freely of charge...I do not think that the Department [of Indian Affairs] had, under the treaty, the privilege of deciding what medicines, drugs and medical supplies were to be furnished to the Indians gratuitously and which were to be charged to the funds of the band. The treaty makes no distinction; it merely states that a medicine chest shall be kept at the house of the Agent for the use and benefit of the Indians. The clause might unquestionably be more explicit but, as I have said, I take it to mean that all medicines, drugs or medical supplies which might be required by the Indians of Mistawasis Band were to be supplied to them free of charge.
This has two implications. First, there is a suggestion that free medical treatment is a treaty right. Second, if Indian Affairs could be found to have charged such costs to a Treaty 6 band=s trust funds, this practice is subject to remedy. Yet to the Justice Department, the medicine chest clause, for example, means precisely a box full of medicines and not an obligation to provide a full range of modern health services.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 27 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. Evidently with a view towards influencing the 2004 federal election in favour of the Liberals, several Aboriginal organisations last year condemned remarks on Aboriginal self-government by Conservative strategist Thomas Flanagan. They seem to have overlooked the fact that this gentleman - an accomplished academic - is the star expert witness, hired by the Liberal Government, to dispute the Samson Cree Nation=s court claim that the Crown has treaty and constitutional fiscal responsibilities towards Indians under Treaty Seven. The Crown=s defence is, simply, based on a treaty interpretation as narrow as one can have. Essentially, the defence suggests that any P&S related obligations which may have existed have been discharged over a century ago.
Let us therefore be clear that, despite its public statements, the present Liberal Government is fighting in the courts to prove that it should not be in the business of providing Indians with programmes and services. This is no different from the views and actions of Liberal or Progressive Conservative predecessor governments since the early 1960s.
The engagement of Mr. Flanagan implies that his literal views on treaty interpretation correspond to those of the Liberal Ministers of Indian Affairs and of Justice. More correctly, the correspondence would be with the views of the Deputy Ministers, who explain to each new minister that the federal government really has no legal obligations towards programmes and services. New ministers typically come to their job imagining a federal legal obligation to fund P&S. Their orientation books try to dispel this misconception before a regrettable statement can occur in a speech or in correspondence. Despite this attempt at education, ministers periodically make erroneous public statements on the subject, which usually result in an immediate correction on that advice of nearby staff.
The AMoral Obligation@ Rationale
Indian Affairs has used the terms "reluctant", "under protest", and Aon humanitarian grounds@ to rationalise its continued Indian programming. These terms may have originated in a letter (ca. 1973) from then-Indian Affairs Minister Jean Chrétien, who explained why Indian Affairs would temporarily re-absorb certain off-reserve programme costs. Subsequent Liberal and Conservative governments have upheld this policy of federal engagement of Ahumanitarian grounds@.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 28 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. Thus, Ahumanitarian@ or Amoral@ grounds are at the centre of current federal explanations for the provision of services. This rationale pre-dates the modern cost- shared welfare state. It has its roots when Indian Affairs did not want provincial authorities providing such services as then existed. In 1948 a vast expansion of federal Indian health services was underway. This was rationalised at the time as:
...a voluntarily assumed moral obligation on the part of the [federal] government, to provide assistance to a more primitive people and to protect the new inhabitants from epidemics which might explode in a population not previously exposed to the diseases of Europe.21
It is incorrect to imagine that this moral obligation was readily or happily assumed. There are many instances when the federal government simply ignored credible reports of famine and epidemic amongst Indians. Until the early 1900s, particularly, it was common for public funds to be withheld until the situation amongst the Indians could not longer be ignored. There are even instances of epidemics and starvation in which assistance was not provided until the state of Indian health became a threat to the White population. A principle of "actual suffering" guided Indian relief policy after the 1880s, when the Superintendent General declared:
Well, most of the Indians are miserably poor. If they were not they would not need Government assistance. All the Government can do is to keep them from actual suffering. And it does that only when the Indians make some attempt to help themselves.22
No definition of "actual suffering" was ever attempted. With a definition there would be expectations and possibly obligations. By keeping it a matter for field agents to raise at their discretion, and headquarters to contemplate on a case-by-case basis, "actual suffering" and public expenditures could be kept to a minimum.
For a century, the federal government interpreted its greatest moral obligation as discharging its responsibility to eliminate the AIndian problem@ with a firm hand. The AIndian problem@ was simply that Indians tended to want to stay Indians, in most cases wanting to retain their traditional economy and culture. Thus, the moral obligation was foremost to civilise and assimilate Indians. Indians were wards and therefore they were treated like, if not worse than, children at the time. Increasingly, programmes and services became a tool towards their assimilation and advancement. For instance, starting in the 1940s if not earlier, rations and housing materials were withheld unless families agreed to follow approved behaviours, such as allowing their children to attend school or taking up residence in a designated settlement.
21 Medical Services Branch, Indian Health Services Annual Report, 1948, p. 40.
22The Facts Respecting Indian Administration in the North-West. Ottawa: Department of Indian Affairs, 1886, p. 20. This remarkable publication was a lengthy, vehement response to Opposition criticism that Indians were being mismanaged, starved, and poisoned.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 29 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected].
Indians who failed to work as directed by the Indian agent were routinely denied assistance. During the Great Depression, Indian Affairs ignored provincial relief legislation and provincial scales of relief. Its budget for destitute and medical relief to Indians was cut as an economy measure, when increasingly large sums were being allocated to the relief of unemployed White persons. Indian Affairs made no attempt to approach the AWhite rations@ in terms of appeal or nutritional value. In the mainstream, the unemployed were often given rations with no expectation of labour in exchange. In the Indian context, a Draconian work-or-starve policy was instituted. Even during the Second World War, Indians were provided with substandard rations even when they were compelled to do AWar work@. All able-bodied persons not in the forces had to contribute to the War effort - but the non-Indians were far better rewarded for it.
It would be untrue to suggest that the Crown has been entirely without compassion in its treatment of Indians. There have been many advocates within the federal government for measures to improve the lot of the Indians. This does not, however, change the fact that these well-wishers often had inappropriate ideas of what the Indians wanted or how they should be helped. The historical contrast between cruelty and compassion, in Indian affairs, tended to be stark. Very few historians would dispute the description of the collective federal morality as Aconfused@. Today this morality tends less to extremes but it remains confused in fundamental ways.
The federal government periodically states that it is not obligated to provide a federal equivalent of every provincial programme and service on reserves. This continues to perpetuate service gaps when, as is usual, the provinces resist getting involved. When a First Nation complains to Indian Affairs that a service should exist, the response is usually a roundabout suggestion to ask the province for the service. The message is that it is the province denying the service. The federal moral obligation extends only to the provision of the minimum level of service by a fiduciary who could afford to be more generous. This does indeed seem to be a confused sense of moral obligation.
The federal government is sensitive to attempts to compare service levels between on- reserve and off-reserve. Federal P&S for Indians generally have administrative requirements that vary significantly from those of the analogous provincial activities. This makes it difficult to compare service levels between the corresponding federal and provincial systems. When complaints are heard, federal departments typically explain that the coverage is similar but the programme itself is organised differently, thereby obviating a realistic comparison. This is, for instance, the response to questions of why benefits between analogous federal and provincial programmes can differ greatly. By this thinking, federal social assistance may be lower but the provision of social housing arguably makes the benefits levels balance. Such reasoning does not explain, however, why unit costs in the federal programmes can be low and also vary enormously from year to year. No attempt has been made to discover why these unit cost variations exist even though unit cost analysis is a standard tool in provincial service administration.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 30 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected].
The >Admit Nothing= Strategy
The federal government tries to be consistent in its policy of making no statements which could be construed as admissions of responsibility. This policy is all the more crucial today when the Crown is facing billions in contingent liability in connection with P&S claims. The full amount is unclear because the federal government recently stopped reporting on the extent of its contingent liability. Faced with this liability threat, the Cabinet is more adamant than ever to avoid Indian-specific P&S legislation, even though such legislation does not necessarily suggest that the obligations it implies are historical. These obligations could possibly be established as present and future.
At this point, such legislation would upset federal Indian policy at all levels and require a fundamental rethinking of self-government negotiations and mechanisms. There is good reason to think that legislation would be a good thing given the stale nature of the status quo. However, it is hard to imagine a Liberal Government making such a profound policy about-turn after such self-proclaimed achievements as the Inherent Right Policy framework and the policies that comprise Gathering Strength.
In order to further its legal point that the provinces are responsible even off-reserve, as they are responsible for non-Aboriginal health services, the federal government includes the on-reserve FN population cohort in its per capita health transfers. This is despite the fact that there is hardly any direct provincial involvement in on-reserve health services. Federal officials would claim that this funding assists the provinces in providing hospital services to off-reserve residents but there is no common ground on this matter, and no federal or provincial interest in discussing it. Some First Nations have explored taking the matter to court. This has not been pursued due to lack of funds, and because suing a province in effect suggests that the province - not the federal government - is denying services.
Questions of Aaccess@ and Await@ are crucial in provincial medicare and central to federal Liberal medicare policy. Yet the objectives and targets that apply in provincial health care seldom apply to First Nations. Health Canada has Agoals@ and Aobjectives@ aimed at Aimproving@ conditions or Areducing@ problems. Targets are notably absent. The federal Government takes no responsibility for, say, reducing the rate of new Diabetes Type II cases to a certain level, by a certain year. The Crown=s legal counsel cautions against suggestions that the federal government is responsible for results.
The Crown continues to expend effort in justifying the standing policy against legislative occupation of programme areas. The federal approach is a defensive one, predicated on the notion that Parliament cannot be compelled to legislatively take responsibility, even if not doing so causes Indians harm. Central to this is the assumption that the power to adopt a law does not translate into a positive duty, on either level of legislature, to use that power. Ergo, Parliament has authority to legislate over Indians but it does not have to do so. Its legislative power is discretionary.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 31 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected].
Today the practical pressures for P&S legislation are greater than they have ever been. For a while the legislative prohibition seemed to involve no management challenges that could not be overcome. In the 1960s and 1970s, Indian Affairs personnel were able to deliver provincially benchmarked P&S with difficulty but with, at first, no insurmountable accountability problems aside from a constant challenge to track changes in provincial benefits and standards and write these into revised federal policy manuals. Accountability problems surged towards intolerable levels only after the rapid spread of band delivery of programmes. Band delivery spread rapidly, from experimental beginnings, after 1975. As this progressed, the lack of legislative authority became increasingly problematic.
Starting about 1980, functional audits of band-delivered programmes revealed accountability problems that observers often traced to lack of a legislative basis and the difficulties inherent in relying on rules established by other governments. By the early 1990s the Auditor General was releasing damning assessments of the over-arching federal programmes and questioning the lack of legislative basis. The system of funding agreements and spending authorities, which substituted for legislation, was seriously flawed and ill suited to the difficult task of compelling bands to follow the rules of provincial governments. By now it was becoming clear, from research including reports to the Royal Commission on Aboriginal Peoples, that some bands were departing from provincial rules when these rules made no sense locally. In some case, welfare state policies engendered dependency. This was a new pressure for across- the-board federal programme legislation: the establishment of standards that made sense in the local context, and which make more efficient use of federal funds.
Responding to demands for analysis by the Auditor General, Indian Affairs in 1995 commissioned a study into differing perceptions of fiscal responsibility regarding its social assistance programme.23 This is instructive because the perceptions apply to other programme areas. Perhaps the most interesting conclusion was that the Department was inconsistent in explaining why it provides P&S. Mixed signals were being transmitted. Some officials even imagined that the services stemmed from the Indian Act or from treaty. Such misapprehensions were even appearing in federal publications for public consumption. The news of this triggered visits by Headquarters personnel to the regional offices with a view towards educating officials on the official position - and on what not to admit to when communicating with stakeholders.
23 op. cit. APerceptions and Positions on Fiscal Responsibility for First Nations Social Assistance: Lessons Learned from the Historical Record@. This report is best read in conjunction with the other four in its series.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 32 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. A complementary report24 suggested three scenarios or frameworks for action. These were requested on the understanding that accountability problems, and alarming cost growth, made it necessary to consider bold measures:
1. The funding envelope yields (status quo); 2. The federal constitutional position yields; or 3. The federal constitutional position hardens; i.e., ANot our problem@.
For many reasons, including and additional to those identified by the consultant, the Crown chose to harden its position that Indian social assistance and other P&S are being delivered under duress, and that the root of federal problems is provincial refusal to become administratively or financial engaged.25 Associated with this hardening is a renewed refusal to consider programme legislation, even if legislation would solve a host of accountability problems.
The Ahardening approach@ has been handled with a greater degree of public relations acumen. On one level - public communications - concerted efforts have been made in recent years to avoid inflammatory statements and any discussions of fiscal responsibility. The federal government stated in its January 1998 Gathering Strength response to the Royal Commission on Aboriginal Peoples, that it Aaccepts responsibility@ for on-reserve expenditures. This is not any sort of admission, but a statement of the status quo. This had already appeared in clearer terms in a less widely read document dating from 1995:
[the federal government] maintains the position that it has primary but not exclusive responsibility for on-reserve Indians and the Inuit, while the provinces have primary but not exclusive responsibility for other Aboriginal peoples.26
The continuing legislative prohibition is reflected in agreements made pursuant to the keystone 1995 Inherent Right of Self Government cabinet directives. Agreements under this Policy - and the earlier Comprehensive Claims Policy - are legislatively recognised, but the federal legislation manages to skip around the P&S fiscal responsibility question (although it may authorise cash payments for the surrender of rights). The Inherent Right and the claims policies require that P&S funding be left unanswered. The actual funding is to be dealt with periodically through the renegotiation of transfer agreements. If anything, the First Nation gains what may be specific lawmaking power respecting certain programme areas, at the erosion of
24 AOptions Available to DIAND in First nations Social Assistance Programming and Financing: A Discussion Paper@. External report to INAC by Andrew Webster of Atelier Pika Ltd., February 1996.
25The decision to harden the federal position had actually been made several months earlier, when the Inherent Right Policy and Gathering Strength were coalescing in strict secrecy.
26 AAboriginal Self-Government: Federal Policy Guide.@ Ottawa: Department of Indian Affairs and Northern Development, 1995. P.14.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 33 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. arguments that the Crown really has the fiscal responsibility. The Crown, when the province is agreeable to enter into negotiations, is thus able to quietly extricate itself from responsibility without any acknowledgement that responsibility has ever existed. The mechanism to do this is clever but off-topic for this discussion.
Balancing the Risks
The federal government treads a fine line in maintaining an $8.8 billion (FY 2004/04) status quo that is predicated upon so many untested assumptions. This fiscal status quo is precarious. Neither the Crown nor any province has dared to seek a judicial final word on the responsibility question. This creates a situation wherein First Nations, driven by financial pressures, are increasingly likely to request a judicial answer to the question. It is difficult to imagine how First Nations, even assisted by intervener provinces, could pool sufficient resources to match the mighty effort that the Crown would array in its defence. The Crown in recent years seems emboldened by a judicial trend that it feels protects it against liability27, in concert with the premise that it cannot be held responsible for any inaction on its part to assist Indians.
First, the Crown feels it has armoured itself well against a Charter challenge concerning a main area of vulnerability: social programmes specifically social assistance. Since about 1994, the Department has vastly improved its ability to monitor and ensure the compliance of First Nations delivery agencies with provincial benefits rates and conditions. It has also systematically weeded out most of the discretionary social programming that had no equivalent in the relevant province. For instance, some of INAC=s regional offices funded a >Children Out of Parental Home= Programme when the relevant province did not. This was setting a negative precedent about federal responsibility even though the programmes may have done some social good. When discovered by Headquarters, these stand-alone programmes were terminated to save money and to send no inconsistent signals.
Second, the Justice Department seems confident that the Crown would not be held liable for failure to legislate standards to prevent harm, even in instances where the harm was foreseeable. Carrying this further, the federal government feels that its continued refusal to legislate regarding programmes and services - which disadvantages Indians by leaving their services in constitutional limbo - is legally right, however immoral or unconscionable this refusal may be argued to be.
27Examples would seem to be: Rothwell v. Rae (1989); Lapierre v. Attorney General of Quebec (1985); and Kwong v. Alberta (1978).
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 34 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. The Crown is quite willing to fight P&S breach of obligation claims, preferring to defend itself on the basis of constitutional and treaty ambiguity, while arguing that the existence of provincial laws makes the provinces ultimately responsible - if indeed any order of government is responsible. Arguments like these will be heard in the next year or two, when the $200M programmes and services component of Victor Buffalo v. The Queen et al. (a.k.a. Samson Cree Nation proceedings) reaches the trial stage in Federal Court.28
The Crown=s willingness to fight, on the basis that it has no responsibility and cannot be compelled to legislatively acknowledge a responsibility, is playing a dangerous game. Federal officials wait for a Amiracle@ court decision that someday throws billions in Indian expenditures onto the provinces. This is a most questionable basis for national public policy. The fiscal shocks could well ignite a political firestorm. The status quo for dollar transfers and taxation powers would likely require adjustment. The Constitution might need reopening. First Nations might revolt. There is simply no favourable scenario if the federal government won its Amiracle.@
It is worth recalling Re: Eskimos (S.C.R. 1939), wherein the Government of Quebec successfully claimed that the federal government was responsible for Inuit relief because Inuit (AEskimos@ as they were known) were in fact Indians. The Crown did not try to dispute that Indian relief was a federal responsibility. Rather, it argued that Inuit relief was a provincial responsibility in the manner of relief to Quebec residents generally, because Inuit were not legally Indians. It was suggested that they were another species of aborigine with admirable positive attributes making them rather like White men. The federal idea that Inuit were not like Indians was reflected by their recently having been brought under the Indian Act, and then let free of it. After hearing lengthy testimony as varied as nose-gauge readings and assertions of admirable, un- Indian attributes possessed by the Inuit, the Supreme Court ruled that Inuit were legally Indians except that the Indian Act did not apply. The Crown was required to reimburse Quebec for its accumulated Inuit relief expenses and to pay costs.
More recently, in court the federal approach has tended to be to disclaim legal responsibility on its own part, rather than attempt to identify the provinces as the government in default of obligation. The time may come when the Crown=s defence requires a more active attempt to blame the provinces than seemed necessary in Re: Eskimos.
28This P&S component of this case is an example of a First Nation raising fundamental questions of fiscal responsibility, in the face of massive federal resources whose aim is to prove the opposite. This is not to underestimate the capacity of the Samson Band, who as an Aoil rich@ band has invested tens of millions in this continuing case over the past decade.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 35 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. Prognosis
There is agreement amongst the premiers, and the Prime Minister, to hold a federal- provincial conference on Aboriginal issues at a time yet to be announced. A date in late 2005 or early 2006 is considered likely. This would be the first federal-provincial conference strictly on Aboriginal issues since 1964. Let us consider whether, or how, this conference could contribute to the resolution of the P&S responsibility question. The September 2004 Premiers= Conference on Health sends signals on what to expect.
This recent, televised health conference involved some First Nations Afirsts@. To begin with, First Nations as represented by the AFN attended a segment of the discussion on 13 September. This participation was a useful precedent, even though it was not as equals but merely an invitation to brief the ministers invited to the table. Another Afirst@ is that the AFN=s brief - its AAction Plan@ for First Nations health - and the policy direction of Health Canada proved to be uncannily similar. The Action Plan does in fact read like a low-key funding proposal to Health Canada rather than a position statement on an untenable situation. Another remarkable occurrence is that the $700M distributed over five years, offered by Prime Minister Martin and made known to the AFN in advance, was along the lines of the AFN=s modest financial request.
The willingness to accept an offer, indicated privately in advance and without negotiation, reflects the fact that the AFN found itself in an adversarial, high-stakes negotiation environment where the provinces - potential allies - were willing and able to hurt the Federal Government to advance their aims. Lacking negotiations tools or experience, and perhaps even the will to fight like a province for the interests of its constituents, the AFN failed to attempt to negotiate anything. The National Chief accepted the federal offer even though hard negotiating later got the provinces far more than they were originally offered. It is true that the AFN was formed as a lobby organisation. As such it lacks the tools and experience to most effectively engage in high stakes negotiations. It also lacks leverage at least at present. Leverage can be developed and expertise can be acquired, but no attempt was made to do either.
The most remarkable Afirst@ actually concerns something else that did not happen: First Nations declined to raise the historic problem of federal refusal to accept legal fiscal responsibility for Indian programmes and services. This silence seems peculiar considering the supreme vulnerability of the Liberal Government, under the cameras, on this subject. Any federal government would have been placed in a difficult position by public exposure of the status quo. Few Canadians know of the existence of, and reason for, service gaps. Fewer know about the offloading of patients and their costs. The conditions were right to elevate the federal responsibility issue with the full support of the provinces. One can imagine the effect of tactical use of terms like Afiscal footballs@ and ACanada=s pariahs@ to describe First Nations people and patients. Faced by criticism ten provinces and all the Aboriginal organisations - not just those connected
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 36 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. with the AFN - the Prime Minister would have been sorely pressed for an acknowledgement of responsibility on the spot.
The intent here is not to wax theatrical. The point is that an unprecedented opportunity was lost because First Nations, as represented by the AFN, had other priorities. It was left to a few premiers to mention Canada=s special fiscal responsibility towards Indians. These puzzled-seeming men, wondering why First Nations would not pick up the lead, fell silent after broaching the subject. Now we must ask whether the Crown=s shirking of its fiscal responsibilities, in any of the programme areas, is no longer an issue for First Nations.
It appears that the First Nations camp - at least at national level - has fallen into a word trap set by Ottawa. As we see from the Action Plan and the discussions and resolutions that relate to it, First Nations through the AFN now seek Aengagement@ and Apartnerships@ with stakeholders in the provincial realm while simultaneously speaking vaguely of federal Atreaty and fiduciary responsibility@. APartnerships@ are what federal policy seeks to bring about - partnerships that lead to cost-sharing and which further dilute the federal obligation and any ‘treaty right to health’. It is also easy for First Nations to sleepwalk into unwanted financial partnerships which can only rarefy their arguments for greater federal investment. So far there has been no discussion amongst the AFN=s constituent chiefs that fiscal partnerships are wanted, especially if this would mean a diminution of the federal share of the total costs.29
Positive working relationships are vital without doubt. For sound practical reasons, federally funded and reserve-based P&S infrastructure can never provide all the second-line and third-line supports available in the provincial realm. This is especially evident in health and education. Super-specialised hospital services must be concentrated in conveniently situated geographic centres. These have sufficient critical mass to make the services viable. Similar economic factors apply to secondary and post-secondary institutions. The federal government is clearly using these facts as evidence that the provinces must become more involved. Anyone who buys into this reasoning, without seeing the larger picture, loses track of the fact that federal reserve- based programmes and services are under-funded and that the federal Cabinet is
29 When provinces get financially involved in a programme area, federal contributions tend to diminish. Under such circumstances, it becomes impossible to lever the magnitude of sustained funding needed to solve chronic problems like the current, severe shortage of social housing units. A recent example concerns the James Bay Crees who now benefit, under the Paix des Braves Agreement, from large annual economic development funding from the Government of Quebec. The Crees spend most of this on capital construction projects. Indian Affairs sees this, to some extent, as a replacement for its own capital funding.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 37 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. historically reticent to spend significantly more money on them. Amounts such as the multi-year $700 million committed for health are insignificant in light of the total need, and small in light of the current federal revenue surplus.
Today the federal government has succeeded in manoeuvring First Nations into an unprecedented level of buy-in. This is reflected by the AFN=s eager participation in consultation processes that are well funded by the federal government. Since the September conference, and with the next conference in mind, the federal government has sharply increased its support for processes which it seems to hope will guide First Nations towards a direction parallel to federal strategic thinking. Now we see the acceleration of a series of federally funded Around tables@, and meetings between ministers and chiefs, which seem to have little purpose except to encourage First Nations towards an agreeable approach at the next conference of premiers.
The influence of an AFN that is unwilling to flex its muscles and negotiate is limited to the extent that it can help the Indian Affairs Minister Akeep a lid on the file@. These ministers are judged within the Government mainly on their ability to prevent Indian issues from becoming unusually problematic. If the AFN is willing to keep matters from boiling over, or to keep matters from appearing at inopportune times, then being on good terms with the AFN is valuable to the Government=s objectives. Under such politically co-operative conditions, additional investments become feasible with the understanding that extreme financial demands will not be heard. The federal government=s nightmare scenario, as it approaches an historic conference on Aboriginal issues, is that federal fiscal responsibility will be the main agenda item. Fortunately for the Government, the AFN has other priorities at the present time and it is in a non- confrontational frame of mind.
It is revealing that the AFN is seeking formula type Aescalators@ to drive federal P&S funding. This in itself can be a good idea if there is no hope of obtaining an acknowledgement of federal responsibility. An escalator can be advantageous to First Nations given two conditions that the provinces long ago discovered: first, the base must be adequate in the first place; and second, the escalator must be sufficiently positive in terms of cost growth. An escalator must, essentially, sufficiently escalate something big enough to be worthwhile, while being sensitive to unforeseen cost and volume changes. Unfortunately, there is no cost-volume trend analysis available to the help the AFN to develop proposals for bases or escalators grounded in actual need. It is unlikely that escalator negotiations will be more scientific that arbitrary proposals and counter-proposals until a handshake is reached.
An acknowledgement of federal fiscal responsibility, however, would be attended by an obligation to spend whatever is necessary to ameliorate disproportionately poor social, economic, and health indicators. One therefore asks why symptomatic relief - escalators - are being sought without an attempt to address the root fiscal issue. Ontario First Nations once coined the apt term: Aa starving man doesn’t argue.@30 This tendency
30A Starving Man Doesn't Argue: A Review of Social Services to Indians in Ontario (Report
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 38 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. appears to explain much of the AFN=s small-vision approach to federal-provincial negotiations about First Nations funding.
Other political factors appear to also be at work. The AFN=s approaches to the September 2004 Premiers= Health Conference, and to the preceding inter-provincial strategy meeting which it attended, demonstrate a preoccupation with the obtainment of power by First Nations leaders. The premiers wanted to debate how to lever an adequate level of health funding from the federal government, both for themselves and for First Nations. Instead the AFN wanted Arecognition@ or Aexercise@ of First Nations jurisdiction.
This was now its stated goal when the real problem was long considered, in First Nations circles, to be getting the Crown to acknowledge that Indians are federal jurisdiction. It was soon apparent to the provinces that the AFN was not there for the same purposes and was unwilling to fight. The AFN doubtless seemed uncomfortably close to the federal agenda - if not too Liberal - for it to be considered trustworthy. As events proved, even Liberal Ontario was willing to bare its teeth when pressure needed to be applied to secure federal concessions. During the lead-up to the September Conference, the AFN did nothing of consequence to earn the respect, or the trust, of the premiers. It is perhaps not surprising that, following the first strategy session, the provinces froze the AFN out of further teleconferences and meetings.
When the provincial ministers and deputy ministers were meeting to develop a common approach, the AFN held no planning sessions on expectations or strategy. Instead it busied itself with an issue concerning protocol and power: the possibility that the rival Congress of Aboriginal Peoples might be invited. The National Chief even suggested to the Government suggesting that the AFN would not attend if the Congress of Aboriginal Peoples were to attend. This makes one wonder whether First Nations consider adequate funding for basic programmes and services, or greater First Nations political recognition, the more pressing matter.
Neither the provinces nor the federal government were enthusiastic about the possibility of First Nations injecting tangential elements into a straightforward financial negotiation. Ergo, the National Chief did not receive an invitation to the September Conference until a few days before the Conference began; then he was merely asked to present a brief. This brief circled around the issue of federal responsibility.
The present National Chief returned to office because positive relations with the Liberals might get results that his successor=s fighting attitude could not. Using a televised Premiers= conference to expose the indefensibility - perhaps inhumanity - of the federal position would have risked the relationship that the present National Chief has cultivated. Not all of his constituent organisations are so cautious however.
prepared by T.A.P. Ltd. for the Indian Association of Ontario, and presented to the Ontario Tripartite Social Services Review Committee, Toronto, July 1979).
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 39 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. Encouraged by First Nations organisations in their home provinces, Premiers such as Lorne Calvert raised the combined jurisdiction and fiscal issue. Several weeks earlier, it was former premier Roy Romanow and not the National Chief who stressed this matter during a joint media scrum. Despite this, and Mr. Rowmanow=s urging his preceding meeting with the National Chief, the National Chief simply had nothing to say when the matter was raised before the cameras. This silence is interesting considering that demands for settling the federal responsibility question had been raised by some of the AFN=s regional affiliates at Executive and committee levels.
Today we see a growing debate in First Nations circles, which shows signs of becoming nasty, on the alleged Liberal politicisation of the AFN.31 Yet the AFN=s approach to the September Premiers= Conference cannot be entirely explained by unwillingness to attack fellow Liberals. There is good reason to believe that the chiefs who comprise the AFN have fallen into word-traps of their own making. The exclusive, federal constitutional right to legislate Indian-specific legislation is being forgotten due to careless use of the >J-word=: jurisdiction. This deflection of focus is what the 1995 Inherent Right of Self Government Cabinet decision and strategy seek to promote. How can you one demand First Nations and federal jurisdiction at the same time? Is the goal First Nations jurisdiction without a federal legal responsibility to pay for essential services? First Nations do not seem to have made this connection.
There is abundant reason to conclude that this complex issue is far over the head of First Nations as a collectivity, although some regional affiliates of the AFN are starting to question how informed was the collective strategy towards the last Premier=s conference, and whether the preparation for the next meeting will be any better. It is interesting that the AFN=s Executive, and its Chiefs Committee on Health, received no briefing materials on the fiscal responsibility issue and nothing on the history, nature, and conduct of federal-provincial fiscal relations over Indian P&S. This is quite the opposite to the case of the premiers and ministers, who received extensive briefing packages and who were prepared to debate the topic. In fact, some historical and legal briefings on previous conferences and on the fiscal responsibility issue were prepared by the AFN=s affiliates for circulation within the Executive and committees, yet after receipt they were neither mentioned nor circulated.
An unexpected and potentially destabilising variable has been added to the negotiations equation. On 8 October 2004, Conservative Indian Affairs Critic Jim Prentice berated the Government in the House of Commons over false promises and dismal track record in Aboriginal health. This was not difficult to do. More difficult was his decision to demand legislation in Indian programme areas such as health and social. He suggested that if the Liberal Government would not enact legislation, then the
31 e.g., AFontaine=s >Achieving Results= for Martin Government: Liberal Collaborators Take-Over AFN Special Assembly@ in First Nations Strategic Bulletin, p. 17.
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 40 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. Conservatives would when they came to power. Alas, there were no shock waves through federal, provincial, and Aboriginal corridors. The speech was on a Friday when a rapidly vacating House had Thanksgiving turkey in mind. The media and the stakeholders at first missed the enormity of a Conservative pledge for legislation. Two weeks later the AFN had not even heard of the matter when queried.
Subsequently, on 2 November 2004, the Opposition Shadow Cabinet approved a seven-point policy called AImproving the Lives of Aboriginal Canadians B Conservative Principles@. Point Number One is ANeed for a Legislated Framework for Federal Aboriginal Expenditures@:
The Parliament of Canada must develop legislation which governs the delivery of federal governmental programs to aboriginal Canadians. Both aboriginal and non-aboriginal Canadians deserve to know the legislative basis upon which the Government of Canada is expending funds on aboriginal health, education, social welfare and infrastructure. Legislation should be developed which governs such programs and which prescribes the standards of service which the Federal Government has undertaken to provide to aboriginal Canadians.
The unavoidable effect of such legislation is to occupy provincial areas in respect of Indians. The Crown would become primarily responsible for costs and outcomes, on a level at least equal to a province. This legislation demand may seem odd considering the Conservative disinclination to create new Aboriginal rights, but the Conservatives are viewing P&S legislation from an accountability optic, not from a rights optic. This legislation would not recognise new rights, but presumably it would recognise existing rights explicitly, or more likely as a side effect. The Conservatives evidently feel that this is an affordable price in light of good governance and improved accountability.
One should not assume that the Conservatives have in mind establishing legislative standards any different from those of the relevant province. Most likely they would legislatively adopt the provincial standards that are currently being used as federal benchmarks. This linkage need not be written in stone. Through agreements or regulations pursuant to the proposed statutes - or later amendments if necessary - First Nations delivering P&S could receive recognition of local policy-making authority. This would be possible without the need for the provincial consent that they have traditionally resisted. Various scenarios are possible, from a cautious pilot project approach, to across-the-board local >jurisdiction=. Indeed, P&S legislation offers a way to fast-track an important segment of self-government without the need for a length trilateral process. Having said this, such legislation can also be done poorly, although it is hard to imagine how the overall effects could be intolerable if the legislation acknowledges federal responsibilities.
It seems clear that the AFN would rather not talk about the possibility that P&S legislation might be a worthwhile proposition. The Conservatives in early December sent their policy paper to the AFN for distribution to the chiefs. Perhaps not unexpectedly it was not distributed and not discussed. One might again chalk this up to a Liberal partisan reaction, but remember that it comes on the heels of a long and
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 41 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. successful struggle against the Governance Bill. Many of the chiefs are wary of any federal Indian-specific legislation whether or not they understand it.
Now some of the AFN=s regional affiliates are wondering whether the Tories will try to offer a better deal: acknowledgement of federal responsibility, a promise that more money filters down to the delivery agencies, and other promises not yet released. They still need evidence that the Tories would carry through with no untoward strings attached, especially in other policy areas. It also remains to be seen whether, before the next election, Liberal Aannounceables@ will distract First Nations from a less glossy Conservative agenda. It is presently thought likely that the Liberals will announce additional, multi-year funding in areas like social housing and economic development. This prospect might well induce First Nations to behave at the next federal-provincial conference. Additionally, First Nations as a collectivity can be induced to busy themselves with issues that the Cabinet finds suitable to its own purposes. For instance, First Nations are preoccupied over the details of how the $700M in additional health funding can be invested, at the expense of planning for the next conference of premiers.
Nonetheless, the Conservative call for legislation has the potential to polarise the AFN=s constituents, alienate the National Chief, and divert Aboriginal-friendly votes towards the Conservatives. There are great uncertainties surrounding how this issue will develop. Are the Conservatives clever enough to exploit the political opportunities created by their legislation promise and their suggestions of a better deal for Aboriginals? Are the Liberals smart enough to make similar or better promises? Will the Conservatives develop their legislation idea into a proposal to settle the offloading question, which the premiers will support even if the AFN does not? Are the Liberals and the AFN one and the same? Or once again: do First Nations as a collectivity simply no longer care about fiscal responsibility for programmes and services?
If the regional chiefs pressure the National Chief, the forthcoming Premiers= conference on Aboriginal issues could yet see a powerful Aboriginal-provincial attack on federal refusal to acknowledge responsibility. The AFN=s collaborative approach to the Government puts it at a disadvantage when asking nicely would achieve nothing. Irresistible pressure would need to be threatened or applied in order for the federal position on responsibility to yield. It is quite possible that sufficient pressure could be applied in the form of a credible threat of a damaging debate. Attempts to justify the status quo would probably backfire badly on the self-styled, pro-Aboriginal Liberal Government.
The present Liberal Government has rediscovered the perceived necessity, first realised by the Pearson Liberal Government in the early 1960s, that the provinces must be coerced into programmes and services financial partnerships.32 Thus, at present there
32 This is abundantly clear from Indian Affairs and Northern Development and Canadian Polar Commission 2004/05 Estimates and Report on Plans and Priorities, various pp. incl. p. 9 : AMost importantly, the Strategic Plan is premised on the notion that significant, visible and sustainable improvements are possible primarily through redefined relationships with our partners i.e., with Aboriginal
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 42 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected]. is every reason to assume that, at the forthcoming conference, the Prime Minister will table significant new investments in targeted programme areas, and challenge the provinces to follow suit. It is unlikely that the 1964 proposal for provincial take-over of federal services will be repeated. In retrospect, that proposal ranks with the old Indian Policy in terms of historical folly in Canadian Indian affairs. The federal approach will doubtless be more subtle although oriented towards the same ultimate objective.
If at the next Premiers= meeting on Aboriginal issues, First Nations again downplay the responsibility issue, some people will ask whose side the AFN is on. If it is left to the Tories to elevate the issue, then Liberals at all levels will have a bigger problem. There is nothing yet to suggest that the Prime Minister will propose federal acceptance of responsibility, nor indeed any radical departure to measures that have been tried since 1964. One cannot expect the provinces to argue against the absurdity of the fiscal status quo unless First Nations show some interest. First Nations must lead this battle, if they still care. If they miss the opportunity to resolve the responsibility matter, we will continue on our march towards court decisions that have potentially catastrophic impacts on intergovernmental fiscal relations.
people and Northerners, with provinces and territories, and with other federal departments and agencies, each of whom hold different and often unique levers for generating positive and lasting change. Overall, the success of INAC to meet these objectives is linked to the recognition of the importance of relationships as a fundamental starting point for moving forward.@
Fiscal Responsibility for Programmes and Services to Indians and the Forthcoming Premiers= Conference on 43 Aboriginal Issues. Copyright Andrew Webster 2005 / 613.234.1587 / [email protected].