The Senate is due to vote on Bill S-4 today (June 28). All indications say that it will pass despite nearly unanimous opposition to the Bill by First Nations and Aboriginal women’s groups, then it has to go through the same process in the House once Parliament reconvenes in the fall.
Hopefully, in the meantime, MPs will see the Bill for what it is: A Step Back in Time. Despite the fact that Prime Minister Harper has apologized for the assimilatory foundations upon which residential school policy was based, this draconian, paternalistic bill is being imposed on First Nations against their will and contrary to their constitutionally protected right to be self-determining.
While I have many issues with the Bill, one aspect of the bill is clear evidence that Canada has reverted back to its paternalistic control over Indians as though they were once again wards of the state who must be controlled and assimilated. The verification officer is akin to the Indian agents which were slowly removed from reserves in the 1960’s. Now they will be reinstituted to give Canada more control over Indians and their reserves for the benefit of the settler population.
Sections 8 to 16 inclusive of Bill S-4 deal with the verification process for adopting First Nations laws with regard to matrimonial real property on reserve (MRP). Before First Nations can enact their own MRP laws, they must be ratified through a community referendum process (25% of the eligible voters) and is “verified” by a verification officer that is appointed by an organization so designated by the Minister and the First Nation. The job of the verification officer is to ensure that the community referendum plan and process is suitable to the officer. At all stages of the First Nation law-making process, the verification officer can withhold his/her approval which would prevent the First Nation from completing the next stage of the process. Even once the law-making process has been completed, the verification officer must certify the “conduct” of the referendum process before the laws are deemed validly approved. The underlying assumption being that First Nations are not capable of respecting human rights – a stereotype denounced by even the Minister’s Special Representative in her report on MRP. The inclusion of a verification officer and certification process has been described by various witnesses who have presented on Bill S-4 as akin to reinstituting Indian agents. With regard to Indian agents and their control over Indians, John Borrows, a respected Indigenous scholar wrote an article which demonstrated through traditional story-telling that the federal government, in earlier times, consistently undermined First Nations liberties and freedoms by placing Indian agents in “supervisory roles” in their communities and that positive change has come about in First Nations by their continued resistance to these impositions. (J. Borrows, “Aboriginal Rights: Indian Agency and Taking What’s Not Yours” (2003) 22 Windsor Y.B. of Access to Just. 253) The 1996 Report of the Royal Commission on Aboriginal Peoples (RCAP) explained that the superintendent general of Indian Affairs had a “vast array of powers to intervene in almost all areas of daily reserve life” and that the majority of those powers were granted to Indian agents. (RCAP, p.297) RCAP describes Indian agents as “all-powerful” because of their control over local, financial and judicial matters. Once again, Bill S-4 seeks to re-establish “supervisors” within First Nations. INAC would have us take comfort in the fact that s.9(2) requires that the verification officer be unbiased, but if we go by past experience – this is highly unlikely. While some Indian agents demonstrated integrity, RCAP explains that many others were: “petty despots who seemed to enjoy wielding enormous power over the remnants of once powerful Aboriginal nations” and that “the Indian affairs branch often seemed to attract persons particularly imbued with the zeal associated with the strict morality and social Darwinism exhibited by deputy superintendents general Hayter Reed and Duncan Campbell Scott.” (RCAP, p. 298) How can INAC expect that they would attract anyone other than a person who believes First Nations need to be supervised to prevent human rights violations? Noel Dyck characterized Indian agents as “agents of coercive tutelage”. (N. Dyck, “What is the Indian Problem: Tutelage and Resistance in Canadian Indian Administration (St. John’s: ISER, 1991). This was inevitable given Indian Affairs’ desire to preach the “gospel of self-help” to Indians living on reserve in the hopes that they would assimilate within a generation or two. (V. Satzewich, “Indian Agents and the ‘Indian Problem’ in Canada in 1946 (1997) 2 C.J.N.S. 227) An aggressive nation-building strategy, together with ongoing settlement requirements led Indian Affairs to focus on socially transforming Indian communities to fit its own values. Despite contemporary awareness about the injustice of the situation, Indian agents blamed Indians for their lot in life and justified their control over them: “Unless they accepted the proposition that Native peoples could not lead a descent life without the direction that they provided, tutelage agents were cast in a role which they would arbitrarily and self-consciously exercise power over other human beings for no good reason.” (Dyck, p.77) The same can be said with the verification officers in Bill S-4. INAC is trying to socially transform First Nations from collectives with communal property and rights, to individuals divorced from their communities in both law and ideology. What “good reason” could INAC, through its verification officers have to impose its authority on First Nations local family matters? The very reason why our rights were protected in section 35 of the Constitution Act, 1982 is to protect our distinct cultures for the benefit of our future generations. If our cultures are communal then who is Canada to try to individualize us and destroy our Nations? Prime Minister Harper stood before Canadians and apologized for the assimilatory foundations and attitudes of superiority upon which the residential schools policy was created. Specifically, he explained:”Two primary objectives of the Residential Schools system were to remove and isolate children from the influence of their homes, families, traditions and cultures, and to assimilate them into the dominant culture. These objectives were based on the assumption Aboriginal cultures and spiritual beliefs were inferior and unequal. Indeed, some sought, as it was infamously said, “to kill the Indian in the child”. Today, we recognize that this policy of assimilation was wrong, has caused great harm, and has no place in our country.” (INAC, Apology) If we are to take the Prime Minister at his word, then how could we enact a new law which would turn back the clock on Indian policy and reinstitute Indian Agents whose role it is to ensure that Indians behave as INAC believes they should – like the rest of Canadians. We already rejected the White Paper which tried to do the same thing. This Bill is Canada’s way of doing indirectly what it is legally prevented from doing directly. The vast majority of witnesses have testified strenuously against Bill S-4 and its two previous incarnations Bill C-8 and C-47. Yet, despite the Prime Minister’s apology for the institutions imposed by INAC that “gave rise to abuse or neglect and were inadequately controlled”, and that “There is no place in Canada for the attitudes that inspired the Indian Residential Schools system to ever prevail again”, Canada is pushing this new legislation, verification officers and the creation of a new institution on First Nations against their will. When will Canada listen to the nearly unanimous voices of First Nations and Aboriginal women who consistently tell Canada to stay out of their local affairs? Even Aboriginal women who advocated for MRP laws specifically stated this was to be done within the context of recognizing First Nation jurisdiction in this area. The United Nations Declaration on the Rights of Indigenous Peoples also provides that First Nations should have paramount jurisdiction over their own internal community affairs. Indian agents were a sad chapter in our history and were (thankfully) slowly removed from Indian reserves in the 1960’s. First Nations don’t need Indian agents reintroduced through the back door as verification officers. If Canada truly wants to support, healthy, vibrant, self-sufficient First Nations, then it should provide equitable funding for social programs like housing, education and child and family services, as well as specifically empower and support First Nations to enact their own laws with legislative recognition and sufficient funding. We have all stood together to reject this draconian and racist bill -now it is time for Canada to listen.
One quick clarification.
Section 8 of the bill reads: "The Minister may designate an organization for the purposes of sections 9 to 16."
And section 9. (1) reads "A First Nation that intends to enact First Nation laws under section 7 and the organization shall jointly appoint a verification officer …"
Your analysis above, however, is premised on the position that its the federal government that chooses the verifier. But, from reading the text, this is not correct. It is the organization AND the First Nation that jointly appoints the verifier.
Thank you for you post. The very fact that there need be a verifier is the most troubling – it smacks of hypocrasy and double-standards. Canada's own Ministerial rep said that First Nations are no more likely to commit human rights abuses than Canada – and Canada's record is not good when it comes to Aboriginal peoples. So, what gives Canada any moral authority to force a verifier on First Nations when it is Canada itself that needs supervision.
I guess so – but there is some moral responsibility (i.e. fiduciary) for those issues or groups that suffer from extreme multi-vocality. In the case of matrimonial property, I guess, Aboriginal women on reserve need protection but can't advocate it because of the patriarchical situation on the reserve. So, in that case, should the Canadian state abdicate its responsibility to those women by respecting local patriarchy?
In actual fact, there are more women Chiefs in Canada than there are women in the House of Commons. There are also hundreds of Aboriginal women councillors. It isn't perfect yet, but we are heading in the right direction. I am not sure what you mean by "multi-vocality"? THere are many Aboriginal men and women who have been unable to advocate on their own behalf, but there are many who can and do. We have to be careful about uncontested stereotypes and rhetoric.
True, but the presence of women chiefs doesn't mean the absence of patriarchy. And women chiefs remain a minority among the 600+ FNs.
As well, the various government reports commissioned and the Senate report point out that most of the property on-reserves is owned solely by men.
It's true that men and women have suffered and are unable to advocate on their own behalf. But, the literature is clear that Indigenous women, on average tend to be in a much more disadvantaged than men. See the work of Sharon McIvor, Patricia Monture-Angus, Joyce Green, RCAP, etc.
I've also been thinking more about your criticism of the verifier. I think your analysis may miss out on some important nuances. Is it hypocritical? I'm not so sure. When the Canadian State passes a law, it goes through a variety of checks – executive passes the law, House of Commons and then the Senate pass the law. Then the courts have the power to "verify" the law against the Constitution. Granted, these are internal mechanisms of verification, but it shows that it is a mistake to think of Canada as this amorphous blob.
As well, how do we know that the verifier wasn't a FN initiative? You were involved in some of the proceedings – have you examined all of the public submissions to see whether this was a government or FN suggestion? That would lend a lot more weight to your analysis.
I'm not a scholar, but I would speculate that this came from a FN women's group – if you believe the empirical evidence out there re: male dominated leadership at the national, regional, and band levels, then it makes sense for a women's group to advocate for a verifier. IN light of the male dominance and some of the recent evidence from the Frontier Centre about the state of corruption on reserves, the verifier makes a lot of sense.
Of course, the Frontier Centre data may not be accurate, but it's the only data we have on corruption on reserves.
Thanks for your comments. I do not believe there is any reliable evidence that First Nations are corrupt. There are communities who have capacity issues and individuals who may make bad choices, but no more so than any Canadian government. The Minister's Special Representative seemed to agree. Time will tell whether this bill passes and/or whether First Nations citizens approve of a "verifier".