Thank you.
Kwe, ni'n teluisi Pam Palmater. I am from the sovereign Mi'kmaq nation on the unceded territory of Mi’kma’ki.
I want to thank you all for inviting me to speak to this issue today, and I first want to acknowledge that we're on the unceded territory of the Algonquin nation.
This committee, obviously, is constructed to undertake a review of the purpose, efficacy, and alternatives to the current INAC intervention policy, and while the name has changed, it's still an intervention policy.
From the first nations who have testified so far, I think the fact that they are testifying as survivors of the policy is a telling indication of the severe harms it has committed upon first nations. To this end, my testimony will not repeat some of the concerns made by—but I also support—the testimony of the Algonquins of Barriere Lake, Mathias Colomb Cree Nation, Wasagamack First Nation, the Mattawa First Nations, Swampy Cree Tribal Council first nations, and MKO First Nations.
The first thing I think this committee should respectfully consider is the mandate of Indian Affairs. It seems like something very basic, but it's something by which all INAC policy should be measured against. The mission is to make “a better place” for indigenous peoples, but the mandate is to “improve the social well-being and economic prosperity” of first nations. To this end, Parliament appropriates more than $9 billion every year, with a staff of roughly 5,000, to implement this very basic mandate.
Your question should be, “Is that policy consistent with that mandate?” If you listen to the United Nations, the Auditor General, the Truth and Reconciliation Commission, and every social research study that's ever been done, the answer would be categorically “no”.
I think it's also prudent for this committee to analyze this policy considering Canada's fiduciary obligations to always act in the best interests of first nations; constitutional obligations to consult, accommodate, and obtain the consent of first nations; the official recognition that was given in 1997 of first nations' inherent right to be self-governing; Canada's domestic and international laws, which prohibit discrimination against first nations and support the right of self-determination of first nations, including the right to manage its own institutions; and Canada's stated commitment to reconciliation, to respect aboriginal and treaty rights, and to renew a nation-to-nation relationship that's not based on the paternalistic controls of the past.
To be specific, here are the problems I have noted with the policy.
First, the policy interferes with the first nations' inherent right to be self-governing. All levels of intervention are directed or mandated by INAC. The policy imposes higher standards on a first nation than is required of other governments, and it's not created in partnership.
Second, there is no legal authority under the Indian Act for the minister to impose a co-manager or third party manager. The policy is not law. It is done under their own discretion, based on their own contractual preferences. This is a major power imbalance, especially considering that many contribution agreements are signed under duress.
Third, this policy does not address the root causes of financial distress and duress: the purposeful and chronic underfunding of essential programs and services, the failure to implement treaty rights, the theft of lands and resources, and the failure to provide sufficient and needs-based funding to develop and maintain governance capacity. That is the root cause of the problem.
Fourth, the policy lacks financial supports to even obtain its own stated objectives to support capacity development. INAC has admitted that it has very little funding to prevent defaults, but it hasn't upgraded band support funding in decades. Regarding the timely remediation of defaults, it has no enforceable exit strategy. Regarding the accountability and transparency of first nations, they are already the most over-reported, overburdened government in the entire world, according to the Auditor General. How much more transparency can this policy require?
Fifth, this policy lacks legitimacy and breaches all principles of administrative fairness and justice. There's no consent from first nations. There's no appeal process. There's no accountability mechanism for INAC. There's no remedy for the harms that are done by a third party manager. The policy has been used for inappropriate political purposes. You just have to look at Mathias Colomb Cree Nation, Attawapiskat, and the Algonquins of Barriere Lake.
INAC forces first nations to pay from their underfunding upward of $600,000 for a third party manager, which it won't give to the first nations to create their own financial staff and office with their own people. If the money is there, it should be used for appropriate purposes.
The policy creates more harm than good. First nations often languish in intervention for many years. They're worse off financially, especially under third party management. Their financial capacity is no better off after third party management. The relationship between INAC and first nations continues to deteriorate. Intervention sends the false and unfactual message of fraud, corruption, and financial mismanagement to community members, making them believe that's the cause of the poverty and not the underfunding, when every statistical report has proven otherwise. It is the rare exception for there to be a situation of wrongdoing, and even less so than in federal and provincial governments, which says something.
In terms of my recommendations, INAC must address the root causes of the alleged defaults, including needs and rights-based program funding, which takes into account non-discrimination, population increases, inflation, and retroactive and prospective costs of staffing, training, and supports, and not just in financial management.
INAC must respect and implement aboriginal and treaty rights, which includes rights-based funding for treaty commitments in education and health, so they are not in financial distress to begin with. This would also include the return of lands and resources, and a constitutional recognition of first nations jurisdiction.
INAC must immediately review all cases of intervention, prioritizing those who are in third party management for reassessment, additional supports, and remedy the severe harms that have been incurred.
The policy itself, should it continue to exist, should substantially be redrafted, in partnership with first nations, as an emergency support policy, and not a political and financial interference policy.
Some of my recommendations for such a policy would be based on core principles, such as that it would be a last resort, exceptional, and in extreme cases only, through volunteer first nation requests for departmental assistance, and would provide accountability and a remedy for breaches and harms caused by INAC and its agents. As well, all costs associated with emergency or exceptional support be borne by INAC as an incentive to make it short term. It should be done on a human rights framework, including indigenous-specific rights, and there must be a formal appeal and review process for any exceptional support cases, including adequate funding and legal supports for first nations to defend themselves, especially in cases of political interference.
We must also review all supports currently provided to so-called first nations financial institutions and crown corporations involved in first nations finances. First nations governance at the first nations level must be the priority, with supports for aggregates when requested. INAC's paternalistic and unconstitutional intervention policy must not be handed over to a first nations institute to do the exact same thing.
In conclusion, you will see consistent messages from the first nations witnesses to address the root causes of the alleged defaults, one of which is chronic underfunding. The INAC director said, “I totally concur with you that the implementation of the policy doesn't mean much for certain first nations if there's not overall adequate funding.”
First nations have also testified about the abuse of power and political interference by INAC staff in first nations. Testifying as survivors is very telling of the toll that it takes, and languishing in third party management for years while finances deteriorate is not in line with anyone's concept of accountability, especially on INAC's part.
Thank you.