National Chief's Presentation to
AFN Chiefs Special Assembly on Governance
Ottawa
May 22, 2002

Introduction
· (Traditional Greeting)
· I want to begin by thanking our Elder for the Opening Prayer. And I want to acknowledge the drum.
· It is important that we begin all our gatherings in a proper and respectful manner. We need to begin with a good heart, good thoughts and a good mind.
· I give thanks to Chief Ozawanimke of the Algonquins of Pikwakanagan for hosting our gathering, and making us feel welcome in Algonquin territory. I extend that gratitude to Chief Whiteduck of Kitigan Zibi.
· And I thank of all you for taking the time to be here today.
· We will need your commitment and energy for the work that lies ahead of us, for the challenges we must meet.

Diversity as Strength

· We have traveled here from all four directions, from different regions and territories, from coast to coast and north to south.

· We are here as leaders of our communities and representatives of our Nations.

· Everyone in this room brings their own viewpoint on the issues before us. Every individual is informed by the worldview of their Nation.

· Every community and every organization decides for itself the best course of action.

· We must respect that.

· Our peoples have always believed in the strength of the collectivity. The strength that comes from sharing ideas and opinions.

· I don’t believe in the Politics of Division. I believe in the Politics of Diversity and Inclusion. We believe in building respectful consensus.

· That is an important message to bear in mind as we focus on the work ahead. As we articulate our vision of true First Nations Governance.

· The fact that we are all gathered here today shows that we can walk our own trails, but stay united under a common cause.

The Special Assembly

· The last time the AFN gathered for a Special Chiefs Assembly was in December of 1994, in Quebec City.

· Our common cause then was the referendum on Quebec separation. We were united to say that First Nations cannot be held hostage by a provincial government.

· As a citizen of the James Bay Cree Nation I felt a political and a personal responsibility to take a stand in that debate, to stand for my rights, my family and my Nation.

· I believe our people played a pivotal role in keeping this country together.

· The government of Canada owes us a debt of gratitude for that. We’ll add that to the list.

· In 1994 we stood together to defend our nationhood, to protect our rights.

· We are here today for the same reason.

· How times have changed. Here we are in 2002 and the government of Quebec is willing to sign agreements with our peoples that recognize us as Nations.

· But the federal Minister of Indian Affairs is still stuck in the 60s – the 1860s!

· The Minister’s proposed First Nations Governance Act is entrenched in the Indian Act mentality – that our rights and our governance are gifts granted by the good graces of Parliament.

· His process repeats the mistakes of the past and is doomed to the same fate: it will fail!

· Our rights come from one source and one source only: the Creator.

The “section 35” Approach

· If Canada is looking for a starting point in its own law, then let’s put aside the Indian Act and look at section 35 of the Constitution.

· Section 35(1) states that “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

· That’s 17 words. 17 words, and more than 20 years later we are still calling on the government to work with us to give life to those words.

· No one else in this country has ever had to wait 20 years to exercise a right that is already recognized. It is there. What are they waiting for?

· Of course, section 35 does not give us our rights – it acknowledges that we have those rights and that they are inherent.

· The Treaties also acknowledge that we are sovereign Nations. But again they are not the source. Our rights are within us and in the land, the traditional territories of our Nations.

· Our governance work at the AFN is based on implementing section 35. It is a “Nation-to-Nation” approach.

· It means re-building and re-constituting our nations as First Nations

· It means Treaty making and Treaty implementation.

· It means exercising our inherent rights. These are fundamental issues that will not go away.

The First Nations Governance Act Approach

· But the Minister chooses to ignore these fundamental issues. He willfully ignores section 35.

· His proposed Governance Act is instead rooted in the mentality of the Indian Act.

· This is the colonial mindset. It is time for this kind of thinking to end!

· The Nation-to-Nation relationship expressed in the Constitution and the Treaties must be the basis for dealing with governance.

First Nations Governance

· The Minister is selling the Governance Act as a way to deal with the problems in the Indian Act.

· Yes, there are a lot of problems. And let’s remind the Minister that the Indian Act is not our legislation. We were never consulted. We never gave our consent.

· Yet once again we are being treated like “wards of the state”, when we should be sovereign partners.

· Constitutional amendments are probably the best way to protect our rights. But it is clear there will be no Constitutional process in the foreseeable future. So for now we must look to other options - we can be reasonable and pragmatic without compromising our principles.

· If legislation is the current option, let’s make sure it is on our terms. Let’s make sure we get it right.

The AFN and the Governance Act

· The proposed Governance Act clearly does not get it right.

· It does not further our vision of nation building. It is not about making a place for First Nations in Confederation.

· The Minister says: “We have to start somewhere.” And I say: “The proposed Governance Act is not even a good start.

· The Penner Report and the RCAP Report both recommended that any new legislation should be enabling, but enabling for First Nations – not the federal government.

· The Penner Report said legislation should be designed to “…lead to the maximum possible degree of self-government immediately”, jointly developed and flexible enough to accommodate a broad scope of government arrangements.

· Penner and RCAP recognized that First Nations have existing “core jurisdictions” that we can exercise right now, without provincial or federal approval. But both reports said negotiations are the best way to go.

The First Nations Governance Act

· The Minister defends his process by saying that the Indian Act is falling apart. It’s being shredded by the Courts.

· His solution is to try and wallpaper over the rips and tears with up to a half-dozen pieces of new legislation. It doesn’t make sense to run around pasting up wallpaper when your foundation is crumbling.

· It is a fundamentally flawed process that can only produce fundamentally flawed results.

· The Indian Act was unilaterally designed by government then imposed on First Nations.

· So the Minister’s remedy is a unilaterally designed process that will be imposed on First Nations. This is the same process that resulted in the original Indian Act.

· I have said it before: it is a form of insanity to continue the same behaviour and expect different results.

· We want change, but we do not want Canada dictating how we run our lives for another 125 years.

Different Approaches, Common Cause

· A year ago, in Halifax, we stood shoulder-to-shoulder united against the Minister’s proposed Governance Act.

· We have since seen how the Minister deals with democracy and dissent.

· We opposed his process and he slashed the AFN’s budget. We were forced to lay-off more than 70 of our staff, our colleagues, our friends.

· We expressed opposition, and he accused our political organizations of being “too political” and initiated a funding review.

· We spoke about our rights and the Minister said that First Nations shouldn’t be pursuing a “rights” agenda – that we should not be standing up and defending our sovereignty.

· Well, I look around this room and I say: “Mr. Minister, we are defending our rights. We are defending our sovereignty. If you are concerned that our political organizations are getting too political – you haven’t seen how political we can get!”

· Our position is clear. We do not need another resolution condemning the Governance Act. We already have it.

· As it is, the Minister is playing the Politics of Division to try and break our unity.

· He says people are on-board, that many organizations are on-side.

· I fear that some of our own people think there is a split in our unity.

· People, we are all united in a common cause. Whether you participated in the consultations or boycotted the process we made our decisions for the same reasons: We are all trying to advance our interests and protect our rights.

· We are diverse peoples and we take different approaches.

· That’s not division that’s democracy.

· I look to Manitoba, where the region came together to block the consultations, to say “this process is illegitimate and we will have none of it”.

· I look to Treaty 8, who got involved so they could influence the process and re-orient it so it focused on their priorities and their issues.

· I have traveled this country. I have spoken with our citizens and our leaders. Our Vice Chiefs have canvassed their people and I can say this with certainty: not one person has stood up and said that the proposed Governance Act is the best approach and that it meets all our needs. Not one!

Common Ground

· The fact is we are all standing on common ground.

· We agree on many things. We agree that a top-down process will not work. Let’s hold the government to the promise they made in Gathering Strength: to work with us in real partnership.

· We agree that the consultations were a sham, more a public relations exercise than an attempt to gather real input from our people.

· Participation in the community sessions was 3% at best. If we use the Minister’s numbers, less than 1% of our people took part nationally.

· More than $10 million has been spent to get this meager level of input, yet the Minister criticizes First Nations for not using funds effectively and efficiently. We could have built 200 new First Nations homes with that money.

· But I will not minimize or marginalize the contributions of our people who tried to influence the process. However, I fear the Minister will.

· The consultation reports show that a lot of the people who did participate were concerned about the lack of information, that they couldn’t give an informed comment. That’s not surprising – it’s technical subject matter and there were no information sessions.

· People wanted to talk about the real issues: housing, land, the Treaties, our rights. But these concerns are shuffled to the back of the reports and listed under “Other”.

· One thing is clear: participation does not mean support. It does not mean consent.

· The community sessions do not meet even the most minimal standards for consultation.

· This makes it even more troubling when the Minister says the product of this flawed process will not be optional. It will be imposed – First Nations will have to live with the results.

Limited and Narrow Subject Matter

· Another place we can all agree is that the Governance Act is a narrow and limited response to our issues. That’s a big reason for the poor turn-out - the subject matter does not resonate with our people.

· The Governance Act doesn’t even deal with the government’s stated commitments to First Nations.

· This begs the question: whose priorities are these?

· We have communities in crisis. Our people are dealing with bread and butter issues – life and death issues.

· The Minister’s cherished Governance Act will not stop one more suicide. It will not build one more house.

· It will not build skills and capacities among our people. It will not provide the resources we need to manage our own affairs and live our own lives.

· This so-called Governance process is completely out of step and out of touch.

· It would be irrelevant…except for the fact that it is dangerous. It is a threat to our inherent rights and our Treaty rights.

The Threat to First Nations Rights

· The proposed legislation will restrict Aboriginal and Treaty rights. It will do so by continuing the attempt to place our rights under the control of the Indian Act administrative framework.

· We can see this clearly in the area of legal standing and capacity.

· This is a dangerous area to legislate if you do not first deal with Aboriginal and Treaty rights. If those rights are not defined, they are at risk. And any perceived abrogation or derogation will lead to more legal battles.

· Our rights of leadership selection could also be affected. Legislation could infringe on our right to self-government by trying to tell us how we can and cannot select our own leaders. Again we see legal battles looming on the horizon.

· This will be the first piece of post-1982 legislation attempting to clarify or define section 35. I guarantee you that we will look at this legislation closely and carefully.

· You may have heard that draft legislation is being reviewed internally by government officials as we gather here today.

· We hear there were delays in the drafting and I have no doubt it is because of the difficulties I have just described. To be honest, we are expecting the worst: legislation that will try to define or undermine our inherent right to self-government.

· This is the only possible outcome when you use the Indian Act as the basis for First Nations Governance.

· If the Minister’s goal is to stem the tide of legal challenges, he may instead be opening the flood gates.

The Supreme Court Test

· Our legal challenge could be based on the test laid out by the Supreme Court of Canada in Sparrow, and applied in Badger.

· Basically, the test has 3 components that must be met if the government is going to alter Aboriginal and Treaty rights.

· I submit that the proposed Governance Act fails in all 3 components.

#1: Clear Objectives

· The first component deals with outcomes, and says that any initiative that alters our rights must have a clear objective.

· So: what is the “clear” objective of the Governance Act?

· If it is really about improving and strengthening our Governance, then there should be a link to capacity-building and institutional capacity. And improving access to lands and resources. Otherwise the process can not be sustained.

· Without this link then the objective is either not clear or doomed. Or in this case, both.

#2: Duty to Consult

· The second component of the Supreme Court test is the Duty to Consult. Here, the failure of the Governance Act is obvious.

#3: Minimal Impact

· The third component says that if you infringe or alter Aboriginal or Treaty rights, then you have to show that the impacts will be minimal.

· We can already see that there is no guarantee of minimal impacts.

· Our rights could be diminished. The fiduciary relationship could be affected.

· If you transfer authority and decision-making powers to Bands then the Minister’s fiduciary obligations are diminished.

· But there are no guarantees that we will receive the necessary resources to carry out the responsibilities that come with that unilateral transfer of authority.

· This sounds like a breach of the Crown’s general fiduciary obligation.

· So let’s grade the Minister’s Governance Act according to the Supreme Court test:

· Clear Objectives: Fail!

· Duty to Consult: Fail!

· Minimal Impacts: Fail!

· Who wins? The lawyers.

· Who loses? Everyone. We will all have sunk a lot of time, energy and resources into a doomed and ill-conceived initiative.

The First Nations Plan

· There is no excuse for this. We have given the Minister an alternative. We are here today to begin mapping out that alternative.

· His proposed Governance Act sparked this Special Assembly. But it is not our focus.

· We will win that fight. But the status quo will change only if we work for a better way.

· Our focus and our challenge over the next two days is articulating our vision of true First Nations Governance. To map out directions and details for implementing the inherent right.

· We can use the First Nations Plan as a starting point.

· It is a comprehensive plan that encompasses all our goals.

· It builds on First Nations’ direction received through AFN resolutions and governance activities.

· It addresses the government’s Throne Speech commitments and the Prime Minister’s public statements to improve the lives of aboriginal peoples.

· It builds on solid work like the Penner Report and the Royal Commission on Aboriginal Peoples.

· It draws on lessons learned and best practices.

· It draws on the most up-to-date and innovative work on First Nations governance, like the recent study by the Harvard Project on American Indian Economic Development. (Sovereignty and Nation-Building: the Development Challenge in Indian Country Today by Stephen Cornell and Joseph P. Kalt, 2001, the Kennedy School of Government at Harvard)

Elements of the First Nations Plan

· This work provides the foundation for the First Nations Plan. The Plan is the blueprint.

· It is about Partnership and Cooperation. It is about bringing people together, instead of dividing them.

· We have incorporated the Minister’s pre-occupations, but in a broader and flexible approach. The Minister’s only wants to deal with:

o Financial and operational accountability

o Powers and authorities

o Elections and leadership selection

o and Legal standing and capacity

· We are not afraid to deal with his issues. We are already dealing with them. They do not require a legislative initiative. Much of this authority already exists. We can enter into contracts, and sue or be sued.

· But let’s deal with them as just part of a broader process.

· The Royal Commission warned against tinkering with the Indian Act.

· Tinkering with outdated legislation is like trying to fix an old, broken-down car. You can give it a new paint job but the engine is shot – it will not take you where you want to go because it wasn’t built to make the journey. We should use our time, energy and resources to design a better vehicle.

· The First Nations Plan is a starting point.

· It’s about First Nations working on their priorities at their own pace.

· It deals with our standards for Informed Consultation and Consent for Outcomes, two features noticeably absent from the Minister’s process.

· We can begin to flesh-out those standards. That’s the kind of constructive work we can start moving on today.

· The First Nations Plan set-outs four streams of change:

o Nation re-building

o Re-distribution of lands and resources

o Treaty implementation

o And new fiscal relationships.

· We identify activities at the local, regional and national level to bring about change in each of these areas.

· These activities will focus around:

o Capacity-building

o Institutional change

o Increasing First Nations’ Participation in the Canadian Economy.

o And Meeting Urgent Needs

· First Nations win by fostering greater self-sufficiency. But we don’t have to isolate ourselves – we’ll be able to participate in the broader economy and build stronger ties to business and industry;

· The Government wins by honouring its long-standing obligations to First Nations. And we improve relationships between First Nations, the Government of Canada and all Canadians.

· On a broader level, the Government could show some good faith by dusting off the final report of the Royal Commission and working with us to implement its recommendations.

· I am encouraging the Prime Minister’s Reference Group of Minister’s on Aboriginal Peoples to look at RCAP. It will help them accomplish their mandate – to think “outside the box” and find creative approaches to dealing with our priorities.

· The lives of our people will not substantively improve unless we build on the key elements of the RCAP report.

· We told the Standing Committee in February that the government should seriously consider 2 recommendations from RCAP as a starting point.

· These are the recommendations to convene a meeting between First Ministers and First Nations to review RCAP, and establish a Canada-wide framework agreement for implementation.

· The other recommendation calls on Canada to establish an Aboriginal Peoples’ Review Commission to monitor the progress of implementation.

· These recommendations are only the beginning, but that’s the point: we want to kick-start the process.

Concluding Remarks

· We invited the Minister to join us today, to tell us about his plans and to hear our position.

· That’s unfortunate. But his presence is not necessary.

· We have our own vision of First Nations governance and we’ll use that as our starting point.

· Our vision is constructive, not prescriptive.

· It is comprehensive, not restrictive.

· It is progressive, not divisive.

· It is about a new beginning. It is about learning from the past.

· It is about respecting our diversity while recognizing our common ground.

· It is about charting our own course while keeping an eye on our common destination.

· It is about acting on our rights and implementing our Treaties.

· Once and for all we must bring life to the words in Canada’s Constitution and to the rights that exist in the hearts and minds of our peoples.

· We need to take charge of our lives and move forward on our path.

· We are at a crossroads. First Nations and Canada have a choice: We can go down the dead-end mapped out by the Governance Act, or we can begin clearing a path that will take us beyond the Indian Act.

· First Nations choose the path that leads to real, progressive change.

· We choose the path that fosters healthy citizens and stronger Nations.

· We choose to move forward, instead of looking back.

· We can work together to map out the journey ahead of us.

· The destination is a place where First Nations take their rightful place as partners in this land, a land that is home to us all.

· A land where all of us – the Original Peoples and the Newcomers - look upon one another with mutual recognition and mutual respect.

· A land where we hold our heads high and assume the privileges and responsibilities as true citizens, of true Nations.

· We don’t need a First Nations Governance Act – we need to act on First Nations Governance!

· There is work to do. But where there is unity there is strength.

· Thank you.

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