Roberta Jamieson, recently elected chief of Six Nations of the Grand River granted the following interview to Executive Editor Tim Johnson on the Reserve in Canada. Jamieson is emerging as a leading critic of the First Nations Governance Act, which would restructure relations between the national government and tribal self-rule.
ICT: To begin, what are your overall impressions of the First Nations Governance Act, and how would you characterize its meaning and purpose at this time?
Jamieson: Well, I think the First Nations Governance Act is really best described as Indian Act II. It is yet another set of rules for our communities, imposed on our communities, developed in Ottawa. It's something that's been dragged out of the midst of colonialism, informed by the same thinking that informed the 1884 Act for the Gradual Civilization of Indians. It's the same thought process, I'm sorry to say. It's colonialism pure and simple. It may be dressed in shiny new clothes. The minister talks about the need to enhance accountability. He talks about giving us the tools to enable us to better govern ourselves. But really when you look closely at the bill itself it is not about the minister getting out of the "Indian business." It is about the minister taking greater control. He is now going to be keeping a registry of laws passed at the local level. And we all know what a dismal failure the department has made out of our registration of our lands and our membership and now he wants to keep the registration of our laws? I mean where do you want me to begin? There are many things about this act, both from its starting point, its mindset, and about the details itself that are, frankly, offensive.
ICT: The Assembly of First Nations analysis describes the First Nations Governance Act as being about elections, accountability and legal standing. How does this line up with your own assessment?
Jamieson: Those are some of the contents for sure. I think it's as remarkable for what's in it, as for what's not in it. Some of the things that are gross omissions are any recognition of our rights in the constitution. You know since the time of treaties our people have been recognized as nations and then with the passage of the Indian Act there was much more of a colonial approach. Then we worked and worked ? and our ancestors worked ? through the century and in '82 we were successful in getting our rights recognized in Canada's modern constitution. That was a major victory. And now the minister would have us believe that that didn't happen. That's why reaching back to the Indian Act, pulling it forward and tinkering with it as a blueprint for our future, just doesn't cut it, and shouldn't cut it with Canadians either. Because if our constitutional rights can be ignored, who's next? You know we've heard our people referred to as the "miner's canary." You know what that is. When the miners take the canary down the shaft, if it dies ... well don't go there. Well if our rights can be violated like that, all Canadians should be concerned for their constitutional rights.
ICT: When you talk about this government-to-government relationship, this seemed to be lacking in this proposed legislation. We were wondering why (as the Act and the government's supporting literature suggest) there need to be changes to the legal status of First Nations as they are currently proposing?
Jamieson: There doesn't. This minister pretends as though he's going to give us the right to sue and be sued. Frankly, any of the things that he has in the bill we do today, yesterday, on a daily basis here at Six Nations. He's giving us nothing new. The list of jurisdictions he puts out in the bill is less than that of a municipal government. We can now regulate noise? We're supposed to be delighted by this sort of thing? Public nuisance? He's going to allow us to prohibit intoxicants? I mean, really. This sort of stuff is insulting.
ICT: We were wondering, in Canada, whatever happened to the concept of sovereign immunity? In the United States many of the Indian nations guard their sovereign government standing. So when we heard this notion about suing or being sued, where do the rights, powers and authorities of tribal governments get exercised? We were wondering where this proposed legislation addresses that issue?
Jamieson: Well as I say it's a throwback to the days when they tried to put us into a box that they could control through federal legislation. It was offensive then in that it didn't recognize our sovereignty. And so it's even worse now because the constitution, we think in Section 35, when it says we recognize and affirm the treaty and aboriginal rights of Aboriginal people in Canada, that, de facto, included sovereignty. That included the right to govern our own people. And so now, more than ever, I think our case is a stronger one in modern law. That is why we must oppose this because to accept it is really to take a giant step backwards. And that's also why as we speak there are lawyers in Saskatchewan working on a legal case that will challenge this act on three constitutional grounds.
ICT: Which are?
Jamieson: Offending Section 35, the rights I've just described (in the constitution of Canada). Offending our collective rights as protected under Section 25 of the Charter. And probably one of the most creative challenges involves a section that is called Section 35-1. Basically, the argument goes like this. We are the only peoples who were recognized as requiring First Ministers' conferences to deal with issues affecting our rights. That means in the constitution the Prime Minister was required to meet with our leadership and premiers across the country to talk about issues affecting our rights. And this, we believe that changes like this should attract the same attention, the same requirement. The other thing is there the Supreme Court decision, called Sparrow, which basically said that any time you're going to adversely impact the rights, or attempt to diminish the rights, the constitutional rights of Aboriginal peoples in Canada, you must meet a very high standard of consultation. And this minister, who spoke to at best, 10,000 people across Canada, many of whom were his own employees and or were repeat hits on the web site and call-ins on his toll-free line (so couldn't be verified). By anybody's standards this just doesn't make the bare minimum. It's less than three percent of our population. Who would say that that was adequate in Canada, in the United States, anywhere in the world frankly?
ICT: The minister talks about particular "uncertainties" as justifications for proposed changes to the legal status of First Nations. In the United States most of these "uncertainties" are handled one-by-one rather than by some sweeping legislation because sovereignty exists in many different areas - jurisdiction over taxation, education, zoning. These are preferably worked out through some negotiating process on a government-to-government basis and imposed unilateral measures usually don't work. Does this continue a paternalistic approach to things?
Jamieson: The minister says he has to do this because he can't wait 60 years for the self-government agreements he'd like to negotiate with everyone to be negotiated. But the only one holding up sitting down at the table and working out a partnership plan to move forward is the minister. If you look right across the country any of our brothers and sisters of the so-called treaty table or negotiating processes that are in play nationally, the vast majority of them are going nowhere. That's because the minister and federal officials have dug their heels in and they are not prepared to move forward with vision, or courage, or conviction. And so I really think this act is about diverting our attention away from exercising our rights under the constitution. He want to tie us up in nit-picky rules for a couple of years when what we really should be doing is working to build and strengthen our communities. Frankly, 18 months ago we had a historic speech from the throne in this country where the government promised in all of its priorities to address the real issues in the communities, housing, education, health, infrastructure, including clean water. Well frankly that's what I want to be working on too. That's what our people need. That's not what this act does.
ICT: The First Nations Governance Act seems to bottle up First Nations, and then move each of the First Nations toward self-government agreements. A couple of years ago we looked at some of these self-government agreements, the ones that are omitted from the First Nations Governance Act, namely the Cree-Naskapi (of Quebec), the Nisga'a Nation, the Sechelt Indian Band, and the Yukon First Nations. But didn't they all end up paying Canadian taxes in those agreements?
Jamieson: They certainly do in Sechelt. They do in Nisga'a. They do in Yukon. I'm not so sure about the Cree. I'd have to look at it again, but absolutely for the majority paying taxes was a condition.
ICT: That's a major sovereign power and authority that any government has. The power and authority over its own taxation base.
Jamieson: Well hold on to your hat because this minister is putting forward what he calls a "suite" of legislation. And there are more pieces coming. He is going to create a national First Nations Tax Commission. He is going to create a financial authority body like a management board. All of these things, again, do not require federal legislation. We could each of us in our own communities exercise our authority, so what I think he is attempting to do is define, package, control and exclude, instead of looking for way to include our nations in a partnership with Canada. He is looking for a way of controlling and focussing our energy, without any resources I might add, to make all this possible.
ICT: In the U.S. what they are finding is that the only policy that has ever worked is Indian sovereignty. This realization has come about largely as a result of the Indian Gaming Regulatory Act of 1988, which really was a federal response to the exercise of sovereignty by Indian nations. It was their way of mitigating conflicts with states. Tribes are now taking control of their own futures and setting up whatever government institutions they need to and then act. In Canada we have this Indian Act and we also have a lot of communities that are very dependent on this transfer of funds from this federal government. How in the world can First Nations communities get out from underneath this structure?
Jamieson: A big part of it is our own thinking. We have the ability to act. We have the historical foundation on which we can stand to act. We have, I believe, a sense of vision. We need the conviction to eat our Wheaties and to take those first courageous, bold steps forward. I think by doing we will demonstrate that we can do. One of the things I talked to the Chiefs about in my speech in Winnipeg, and in Ottawa, was about the need for us to say, "not the government must," but "we insist they." We have to start saying I will. We are. We are doing this. And there is a lot of fear out there I can tell you.
ICT: What about the backlash?
Jamieson: Well I think the Canadian public all want to see us dealt with fairly and justly. And I think we've got a big education job on our hands to let the public know what we're about and why we're doing what we're doing. But the Indian Act is not the source of funds for our communities. The Indian Act is not the place that the resources come for our communities. Our communities resources are due to us because of the lands and resources we have shared with others. And when we start thinking and talking that way, and exercising it in a respectful way, in a constructive way, and empower ourselves as we did in the '80s when we got constitutional recognition that was an empowering moment. Let's remember the feelings of those days as we did when we defeated the '69 White Paper policy. I guess the only good news this week is that this bill has gone to committee after first reading, which is where the '69 White Paper went and we killed it. And it hasn't escaped most of us that Chretien, the now Prime Minister, was the then Indian Affairs minister, who authored the '69 White Paper policy. And so many of us are determined to repeat that lesson. But frankly, we'd rather not be doing that. We'd rather not be on the hill or in the courts. We'd rather be working hard at home.
ICT: Under the law-making powers section of the act, Powers of Band Councils, Section 16, Number 2, and in subsequent places as well, First Nations are enabled to make laws for certain purposes. However, at the end of each of those sections it says if there is any conflict with this act or any other act of parliament that the federal laws prevail. So are First Nations governments municipalities? What are you really?
Jamieson: It's containment. You notice that you can make laws over wildlife, but not fish. You know why? Because we have a hot fishing rights issue going on three coasts. So again, it's all about containment. You'll see that one of the most dangerous parts about the act that really hasn't been commented on from what I've seen yet, is that it leaves for later the regulations to be made by Orders in Council. So this is a framework piece and it's been very skillfully crafted to look like a motherhood, ie, who could object to this, only those most corrupt leaders who don't want to be accountable. And then he reserves for the implementation of it to be done under regulations by Order in Council. Now regulations are not unusual things. In this case I think it is an extraordinary thing because, again, they are dealing with our constitutional rights. And regulations can be passed by an Order in Council, which simply means the Cabinet sitting in a closed room by resolution, can make further rules and standards for our communities.
ICT: This is where the First Nations Governance Act refers to Governor General?
Jamieson: It's called the Governor in Council by regulation. And that just means Cabinet sitting on its own can pass motions to impose further things on our people. And that's in that act. Also the minister retains the right to review election appeals. The minister is broadening his opportunity to come in and regulate financial affairs. I mean he's telling everybody he's getting off our backs. Oh no he's not.
ICT: It's interesting studying the history of Jean Chretien in Native affairs. Years ago when he was heading up the Department of Indian Affairs he was opposed to the border crossing rights of Native peoples. He has quite a legacy in his relations with First Nations.
Jamieson: Yeah, and it's extraordinary when you see he is from a province, Quebec, that when you see some of the most progressive things happening nationally, are being proposed by the provincial government of Quebec, now working with the Crees. So that is our reality. He's also involved in a leadership battle. One can only hope that will preoccupy everyone's time. We know that the Queen is coming in the fall. All these timing issues are coming into play. One other thing I want to mention to you that, again, is in the act and not been commented on. It's very clear in the act that we make rules only over the reserves. There is no discussion of any territory beyond that. Now, there's another bill that was introduced on the House in last week on the new [Indian] claims process that is setting up to settle outstanding land issues in Canada. That process they are pretending is independent. It isn't, and will resolve the majority of claims in Canada. The problem with it is it's a cash only deal. Therefore, if you read them together what they have firmly in mind is postage stamp sizes of land for the future. There is no ability through the new claims process to get additional land. It's unacceptable. And the top cash award is million, from which you deduct your lawyers costs and the negotiating costs. So when you put this whole picture together it's a very tragic one.
ICT: Some of these [First Nations] communities may end up owing money.
Jamieson: That's right. Well Six Nations is in court of course so I'm saying that process [negotiation] is obviously not going to give us what we need.
ICT: So that's their policy. No land returned at all under these land claim settlements?
Jamieson: It's not available under the claims tribunal they're setting up. The only way they'll consider it is if in the negotiations you're able to negotiate willing seller and willing buyer, and then only with the less than million they're giving you. The other thing is their budget for the year is million, so if you do the math that's ten claims a year. There's a 500-claim backlog existing now. This is not progressive thinking but the public just doesn't know about it.
ICT: With respect to this current legislation [First Nations Governance Act] what is the response going to be?
Jamieson: On all fronts, opposition. You'll see us act internationally. We're talking about this across Canada now. I'm on a national committee. In the courts. On the hill. Lobbying. In the churches. In the schools. Educating. I think, increasingly, you'll see people talking about exercising their rights. I think you'll see '60s activism. I think you'll see radicalization of many of our peoples. It is putting into motion a process that will be hard to turn around. And it's actually a very troubling time on all sides I think. Because you're also seeing a rise in conservatism in this country out west in Alliance [the political party] country where it's "taxpayers rights" they're talking about. So we're in for tough times in this country I'm afraid, unless we have a turnaround.
ICT: How would you characterize these band councils in Canada, as "governments" or "administrations?" How would you characterize them?
Jamieson: That's an interesting question. Well I can tell you how I characterize myself in this one [Six Nations]. I don't pretend to be Hoyaneh, I'm not a traditional chief. I am working from the position I have taken on to develop in this community a system of decision making we can all support. As you may know one of the undertakings that I gave as part of the platform, on which I was elected and which this council has accepted, is to create a commission that will develop a system of decision making that we all can support.