[This essay is under construction to be sure of facts].
This essay is to examine First Nations funding to include the historical critical events which led to underfunding, the various funding authorities and arrangements, and to look at federal and provincial policy. According to Rarihokwats (historian), if the original ‘Spirit and Intent’ of Treaty were implemented, First Nations would not be in the financial crisis they are in now; their funding would be supplementary like all Canadians. Over 25 years ago, Former Minister of Indian and Northern Affairs Canada, Bill McKnight made a point which is still relevant today. He said, “Formula funding creates an underfunding problem in First Nation communities and does not address the needs amongst members because it is outdated”.[1] Andrew Webster states that there is no legislation for funding at the federal level for reserves, government is adamant that funding arrangements are a matter of policy therefore the federal government has the discretionary authority to fund First Nations in accordance to their own political agenda.
This essay is to examine First Nations funding to include the historical critical events which led to underfunding, the various funding authorities and arrangements, and to look at federal and provincial policy. According to Rarihokwats (historian), if the original ‘Spirit and Intent’ of Treaty were implemented, First Nations would not be in the financial crisis they are in now; their funding would be supplementary like all Canadians. Over 25 years ago, Former Minister of Indian and Northern Affairs Canada, Bill McKnight made a point which is still relevant today. He said, “Formula funding creates an underfunding problem in First Nation communities and does not address the needs amongst members because it is outdated”.[1] Andrew Webster states that there is no legislation for funding at the federal level for reserves, government is adamant that funding arrangements are a matter of policy therefore the federal government has the discretionary authority to fund First Nations in accordance to their own political agenda.
First Nations do not receive adequate funding, formula funding is outdated, and policy is weak. These factors are rooted in significant historical events. To understand First Nations funding arrangements with the federal government, one needs to understand the relationships basis of First Nations and Canada, along with the Aboriginal rights which flow from being First Nations of North America. It is a legal fact as stated by the Supreme Court that, “First Nations were already here with distinctive societies, customs and their own laws.”[2] Before the arrival of Europeans, Aboriginal rights include title, government and including their ways of looking after themselves. The Royal Proclamation of 1763 is declaratory recognition of Aboriginal rights by the Crown. It is not an instrument that accords rights; it is simply an acknowledgement of the rights of First Nations people. The elders of First Nations strongly believe through their teachings, language and history, their rights come from the creator.
The legal basis of First Nations is recognized in the Constitution Act 1867 in section 91[24], “Indians and the lands reserved for Indians.”[3] The Constitution of 1982 includes sections 25, 35, and 37 which recognizes and affirms First Nations as having the right for self government. The Indian Act is a passed pursuant to section 91[24]. It is administration legislation for management and control for First Nations and allows a limited local government like band councils. The Indian Act does not address the Aboriginal rights of First Nations. Treaties were negotiated with the Crown to deal with the land transactions. This process did not include a conquest or defeat in war nor any surrender by First Nations. The Treaty process before and shortly after 1867, established the right for First Nations more than any other citizens by the very fact that First Nations were the original owners of North America.
According to Rarihokwats, Treaty negotiators had templates in place that would rival the best modern business arrangements in which an Indigenous nation hires an ‘Indian Agent’ to sell off the opened-up lands. Income is remitted to Ottawa and placed in a ‘capital account’ to the credit of the people; interest is earned which goes into a ‘revenue account’, and government takes off 10% as an administration fee. Indigenous nations remain totally independent and self-sufficient. This is from the Archibald papers in the Ottawa archives. In 1871, Treaty negotiation began. Farming reserves were set up for those who wish to farm; traditional economic activities continue on lands not taken up for settlement. “Treaties were negotiated for livelihood and economic transition for future generations”.[4]
Rarihokwats articulates this critical time period that followed treaty changed the fortune of Aboriginal people and led to poverty and the current underfunding crisis today. Prime Minister John A. Macdonald floods the prairies with immigrants attracted to offers of ‘free land’ – but Sir John fails to buy the lands he is giving away; huge tracts of land are given away to lure in railway investors – but no purchase of lands from Indigenous nations. Soon after poverty sets in, the Indian Act legislation and restrictive policy within control the lives of First Nations.[5]
The above description of the relationship of First Nations and Canada provides the legal basis of fiduciary obligations and funding arrangements for First Nations. Further, recent Supreme Court decisions like Sparrow and Guerin confirm that the federal government has a trust relationship with First Nations including funding to First Nations.
Today the Aboriginal Affairs and Northern Development Canada (AANDC) website outlines, “The objective of the federal policy and directive on transfer payments is to ensure that transfer payment programs are managed with integrity, transparency and accountability”[6]; the directive provides the framework for standard grant and contribution approaches. The three additional funding contribution approaches are fixed, flexible, and block contribution. In other words, this creates a lot of paperwork. Writer Don Marks argues First Nations are subject to three times more reporting and accounting for transfer payments by treasury board guidelines, general assessment tools, and management policies put in place by Aboriginal Affairs and Northern Development Canada than other groups receiving government funds[7].
At one time, the Minister and Indian and Northern Affairs Canada said in the House of Commons that First Nations get to 9 billion dollars; he further states that every individual treaty person would get about 16000 per year. [8] If this is the case, Keeseekoowenin First Nation has a little over a thousand members which would mean that they would get 16 million from federal funds, but contribution agreements says approximately 6 million reaches the reserve, so what happens to the 10 million dollars. The answer is it goes to other federal and provincial departments as they advocate that they provide First Nations services. Departments like justice, health, and even Parks Canada receive funding for First Nations.
It is importantly to remember that First Nations health is operating in a system that for the last 150 years (Indian Act), has been trying to rid its self of its fiduciary obligation. Health Canada does not have public health legislation that applies to reserves and therefore works with provincial governments to address regulatory issues.[9] The Health Accord that will expire in 2014 is a funding transfer arrangement from the federal government to the provinces that include welfare, health and education. This arrangement includes the total population of each province that includes First Nations; First Nations have a special arrangement through Health Canada for programs and services on reserves. However the province has jurisdiction to implement health program and services and therefore First Nations are implicated.
The growing Aboriginal population and their overall health situation is another area of financial concern in the long term. However, the federal government believes that, with certain exceptions, it does not have any legal or fiduciary obligations with regard to health care for Aboriginal people. The federal government is adamant that health care for Aboriginal people is not a treaty right but rather a discretionary policy for programs and services. The issue of jurisdiction for effective health services for First Nations creates the underlying problem for effective health delivery for First Nations. It is time for legislation to control funding levels for health programs. First Nations say health is treaty right, government says that it is policy; the game of hot potato between federal and provincial government over responsibility has had fatal consequences (Jordan’s Principle) and needs to come to an end. The existing division of powers between the provincial and federal government because of their own jurisdiction and spending powers provides First Nations the lack of adequate funding to meet their needs. In most cases transfer payments are based by per capita populations.[10]
A couple fundamental disputes between First Nations and the federal government about health services are, firstly, how health policy is implemented for Aboriginal people. Secondly, is the funding of First Nation health services, including the statutory, constitutional, or fiduciary obligations of the federal government regarding the provision of health services of Aboriginal people. The underlying problem of health is the fiduciary obligation by federal or provincial governments. This conflict provides a lack of appropriate funding arrangements.[11]
As mentioned above, legislation is needed, not policy to address the funding for health on First Nations. Policy can be amended or changed at the discretion of the government whereas legislation is a statutory obligation that is enforceable in a court of law. The province receives funding for health and social transfer payments from federal government based on population data including the population of First Nations. Policies can and are changed unilaterally by government to suit their needs and do so frequently. Often the bottom line comes down to dollars. With legislation there would be enhanced safeguards against this in that it would harder to change legislation versus policy. Andrew Webster emphasizes, “Canada has avoided any Indian-specific legislation which suggests federal responsibility for Indian programs and services. Every year, Aboriginal Affairs and Northern Development Canada and other departments request from parliament the moneys they need to be appropriated”.[12] First Nations need minimum standards for care; Legislative standards of care. This would include a minimum number of doctors/nurses per number of population, a hospital to address the health needs of the people in the North.
First Nations do not have access to supplementary funding as the provinces do. First Nations have always argued that the statistics that the provinces use includes First Nations; therefore they should have access to this supplementary funding to bring their standard of living up to par with all Canadians. The provinces have taken the position that Canada has fiduciary obligation and jurisdiction on reserves. The term spending power is a constitutional excuse to underfund First Nations at the reserve level. This conflicting federal and provincial funding arrangement is the source of underfunding to First Nations.
A significant factor in the existing funding relationships between the Crown and First Nations is there is no funding legislation for First Nations. Even the Treaty’s were negotiated with this ‘Spirit and Intent’ and Supreme Court recognizing legal fiduciary obligations to fund First Nations. The federal government is solid on its position to state and exercise funding to First Nations that it is a matter of policy rather than a statutory or treaty obligation. That is the reason why the Administration Act and Appropriation Act are mentioned in the contribution agreements that provides the discretionary authority to fund First Nations. To provide an example of funding First Nations without legislation, is when the federal government used treasury board minutes no. 62779 that was passed on July 23, 1964 to have authority to provide welfare to First Nations.[13] There are other treasury board authorities that require Old Age Security and Family Allowance to First Nations. According to Douglas Sanders, “Federal Indian Legislation (Indian Act) does not deal with the provision of social services to First Nations. Most government expenditures on First Nations whether federal or provincial, flow from budgetary allotments, not from specific legislation.”[14] The problem for underfunding to First Nations lies in the nature of federal transfer payments and equalization arrangements - i.e., the provinces have supplementary funding to maintain an acceptable standard of living for non first nations through an arrangement Established Program Funding. The problems facing First Nations go deeper than the existing programs lack of efficiency and effectiveness.
The Office of Auditor General identified four structural impediments that limit the delivery of public services to First Nations reserves: lack of clarity about service levels, lack of a legislative base, lack of an appropriate funding mechanism and lack of organizations to support local service delivery.[15] In other words, government is carrying out supervised neglect, but part of the problem is also in First Nations hands for not organizing and developing the capacity to put in place the people to tackle the reporting and accounting.
It is not mismanagement by First Nations because they have to account for all the funding they receive from the federal government. These are enforced by audit reports. All programs must follow treasury board guidelines. If not it creates a deficit for First Nations. The only discretionary funding for First Nations is a program called band support funding. This program provides funds for Chief, councillors, administrative staff and all costs relevant to the band office. All programs and services at reserve level have to be consistent with provincial standards and regulations, this authority comes from section 88 of the Indian Act as it applies to First Nation funding. Formula funding is the problem for First Nations; it is so far behind it will not address the current needs in communities.[16] This is the case for band level government, and other band authorities.
First Nations are disappointed at the way the media portray their issues for a couple reasons. First, the way they are constantly portrayed as taxpayers burdens, which are always complaining, and a drain on public resources. Secondly, that more attention is paid to mismanagement of funds, even if they are just accusations. The public opinion is important because if no one is concerned about the living conditions and underfunding of First Nations communities, then nothing will be done. In Attawapiskat, it was only the anger of public opinion that made the federal government act in the way they did and send Ready-to-Move houses to the community. Public opinion matters because that’s the way elected politicians survive. Furthermore, the term taxpayers burden is a misdemeanor because all Canadians are entitled to universal health care through the health accord transfer arrangements, it is not only First Nations that receive federal funding.[17]
Essentially, the basic needs of people need to be met. It is about funding governments equally to give the people the same opportunity. Internally, there can be changes made within the leadership to address political instability and immaturity which cripples the self-government process at the First Nations level. Resource sharing with First Nations should be part of the solution to bring equality amongst the living standards between First Nations and the rest of Manitoba.
As noted earlier, Treaties were negotiated by both parties to promote peaceful co-existence, share resources and to facilitate economic transition for future generations.[18] Restrictive legislation was implemented contradicting the original ‘Spirit and Intent’ of Treaty. Today First Nations exist within a legislative framework which was meant to eliminate their existence (AANDC). The effect is to reduce the number of people the government must be financially accountable for.[19] Federal policy and directive to promote accountability of First Nations strains the administrative capacity with excessive reporting and accounting in comparison to other organizations which also receive government funding.[20]
This essay reviewed the historical background of the relationship between First Nations and the Crown, attempted to provide a legal foundation to support that the federal government has a fiscal obligation to fund First Nations under treaty. The problems are numerous and complex and beyond this paper. At the end of the day, figuratively, the government is playing First Nation leadership like puppets controlling the strings from Ottawa avoiding Indian-specific legislation for financial accountability while trimming down spending in the budget considerably in the coming years;[21] meanwhile the Aboriginal population is the fastest growing demographic in Canada. First Nations underfunding is lacking public and political concern to be addressed on the government agenda. The predominantly delighted audience is the rest of Canada and the world, the stage is set though media who cast First Nations as unaccountable financial burdens. Both parties need to realize the jig is up and bridge the ground between recommendations to improve relations and promote reconciliation for the financial stability, health, and accountability of Canada. The funding arrangements to First Nations can be addressed in by part natural resources revenue sharing and their own source revenue through business development. These are recommendations from the Manitoba Indian Tribes also for an improved relations and reconciliation as suggested the 40th Anniversary Edition book, Wahbung, Our Tomorrows, which are still pursued today.
Legislation is necessary for funding stability and enforcement- i.e., the Assembly of Manitoba Chiefs is working on a First Nations Health Act and lately the national panel of discussion on education recommends legislation for equity predictable and to meet the needs of first nations.
In Summary this essay addressed the concern about federal fiduciary obligations to first nations and that it hasn’t created a legislation to enforce it. It is merely a policy that cannot be challenged even in court.[22] Both the government, federal and provincial including First Nations will need to be reconciled for adequate funding arrangements to First Nations. According to former National Chief of Assembly of First Nations, Phil Fontaine, who warned the Assembly of Manitoba Chiefs that funding authorities by the federal government are under review and may be changed, the issue is whether First Nations will be involved or if it will be strictly a bureaucratic process[23]. However the question of funding is real because it deals with everyday life in First Nations communities.
Bibliography
1. Andrew Webster, “Perspective- First Nations- Fed and Economic Update,” accessed 24 January 2012: available from: http://www.turtleisland.org/discussion/viewtopic.php?f=19&t=5052
2. Andrew Webster. Trends in Financing Social Welfare Programs to Indians On- and Off –Reserve: A Cursory Examination of Key Issues, Executive Summary. 1996.
3. Authur J. Ray, Jim Miller, and Frank Tough. “Bounty and Benevolence”: A history of Saskatchewan Treaties. (Montreal: McGill-Queens University Press, 2000).
4. Don Marks. “The truth about Chiefs’ incomes”: Grassroots news. February 28, 2012.
5. Government of Canada, Aboriginal Affairs and Northern Development Canada, “Funding”: accessed 7 March 2012: available at: http://www.aadnc-aandc.gc.ca/eng/1100100010002
6. Government of Canada. “House Publications”. Accessed 9 February 2012: available at: http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=5237771&Language=E&Mode=1&Parl=41&Ses=1
7. Indian Tribes of Manitoba. “Wahbung”: Our Tommorows, Special 40th Anniversary Edition. (Winnipeg: MICEC, 2011).
8. Lorrainne Land, “Taking a second Look at Those Attawapiskat Numbers,” accessed 26 January 2012: available from http://www.oktlaw.com/blog/taking-a-second-look-at-those-attawapiskat-numbers/
9. Pam D. Palmater. “Beyond Blood”: Rethinking Indigenous Identity. (Saskatoon: Purich, 2011).
10. Rarihokwats, Interview by Author. 1 March 2012.
11. Reforming First Nations Education: From Crisis to Hope. Report of the Standing Senate Committee on Aboriginal Peoples. Accessed 18 March 2012 at: http://www.parl.gc.ca/Content/SEN/Committee/411/appa/rep/rep03dec11-e.pdf
12. Cindy Blackstock. “Jordan’s principle”: Editorial update Accessed 27 December 2011 at: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2603509/
13. Government of Canada. “House Publications”. Accessed 9 February 2012: available at: http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=5237771&Language=E&Mode=1&Parl=41&Ses=1
14. Paul Chartrand. AMC Advisor on Health Issues. 2012.
15. Douglas Saunders. Journalist. The Globe and Mail. Accessed 2012.
16. Supreme Court of Canada. Accessed2012.
17. Canadian Constitution. Accessed 2012.
18. Phil Fontaine, Former Chief of Asemmbly of First Nations. Accessed 2012.
[1] Reforming First Nations Education: From Crisis to Hope. Report of the Standing Senate Committee on Aboriginal Peoples. Accessed 18 March 2012 at: http://www.parl.gc.ca/Content/SEN/Committee/411/appa/rep/rep03dec11-e.pdf
[2] Supreme Court of Canada. Accessed2012.
[3] Canadian Constitution. Accessed 2012.
[4] Ray, Miller, and Tough, “Bounty and Benevolence”: A history of Saskatchewan Treaties. (Montreal: McGill-Queens University Press, 2000), p. 73, 77.
[6] AANDC Website. 2012
[9] Melanie McKinnon. “A first nations voice in the present creates healing in the future”. Accessed February 2012 at: http://www.medicinecreek.ca/files/A%20First%20Nations%20Voice.pdf
[10] Cindy Blackstock. “Jordan’s principle”: Editorial update Accessed 27 December 2011 at: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2603509/
[11] James S. Frideres, Rene R. Gadacz. “Aboriginal Peoples in Canada”: Eighth Edition. (Toronto: Pearson, 2008).
[12] Andrew Webster. “Perspective- First Nations- Fed and Economic Update,” accessed 24 January 2012: available from: http://www.turtleisland.org/discussion/viewtopic.php?f=19&t=5052
[13] Andrew Webster. Accessed 2012.
[14] Douglas Saunders. Accessed 2012.
[15] Government of Canada. “House Publications”. Accessed 9 February 2012: available at: http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=5237771&Language=E&Mode=1&Parl=41&Ses=1
[16] John Merritt, “In Search of Common Ground: Ottawa Rethinks Its Approach to Comprehensive Claims”[electoronic journal]. Accessed 9 march 2012: available from http://carc.org/pubs/v15no1/1.htm
[17] Lorrainne Land, “Taking a second Look at Those Attawapiskat Numbers,” accessed 26 January 2012: available from http://www.oktlaw.com/blog/taking-a-second-look-at-those-attawapiskat-numbers/
[18] Ray, Miller, and Tough, “Bountry and Benevolence”: A history of Saskatchewan Treaties. (Montreal: McGill-Queens University Press, 2000), p. 73, 77.
[19] Pam D. Palmater, “Beyond Blood”: Rethinking Indigenous Identity (Saskatoon: Purich, 2011). p. 47.
[20] Don Marks, “The truth about Chiefs’ incomes.”[Winnipeg] Grassroots News. 28 February 2012, p.7.
[21] Canada, Aboriginal Affairs and Northern Development Canada, Funding: accessed 7 March 2012: available at: http://www.aadnc-aandc.gc.ca/eng/1100100010002
[22] Paul Chartrand. AMC Advisor on Health Issues. 2012.
[23] Phil Fontaine, Former National Chief Assembly of First Nations, Accessed 2012.
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