COLUMN

Time to get tough with the natives

Reforms are required that would recognize the rights of the rest of Canadians who are footing these awesome and overly generous bills

DIANE FRANCIS July 10 1995
COLUMN

Time to get tough with the natives

Reforms are required that would recognize the rights of the rest of Canadians who are footing these awesome and overly generous bills

DIANE FRANCIS July 10 1995

Time to get tough with the natives

COLUMN

Reforms are required that would recognize the rights of the rest of Canadians who are footing these awesome and overly generous bills

DIANE FRANCIS

Melvin H. Smith has spent a career shaping public policies, and his latest cause is his most controversial—the country’s bizarre aboriginal policies. Smith, now a public policy consultant and columnist in Victoria, is a lawyer who has spent 31 years in the public service of British Columbia, specializing in constitutional law. He has just written, and self-published, an important book called Our Home or Native Land?, which offers a frightening glimpse at the spiralling costs and escalating tab that future generations of non-aboriginal Canadians will be responsible for. He calls for reforms and presents compelling reasons why they should be adopted. Like Smith, I have long been concerned about the special privileges unfairly awarded to this country’s aboriginals, such as tax-free status, questionable land-claim awards and special exemptions from the rule of law, as well as massive cash entitlements.

Canada has 2,370 Indian reserves encompassing more than 10,000 square miles—in all about half the size of Nova Scotia. According to Smith, some 63 per cent of reserves are uninhabited. The number living on the rest is 314,843, or 1.1 per cent of the country’s population. As Smith points out, ownership is held by Ottawa in trust for bands, which makes it impossible for them to mortgage, transfer or sell the assets. This effectively prevents the bands from achieving either independence or economic development. So instead of encouraging autonomy, self-reliance and a sense of self-worth, aboriginal policies encourage dependence, bureaucracy and paternalism.

Smith maintains that the aboriginals have received an enormous and unfair giveaway for several reasons, including guilt about past misdeeds, ministerial ignorance, bureaucratic indifference to long-term consequences of land-claim settlements and appeasement by politicians for political gain.

“In the department of Indian affairs and northern development, major land-claim agreements ‘successfully’ negotiated are a decided plus,” he writes. “Little regard seems to be given to the public interest in all of this.”

Politicians are also indifferent to the public interest. After the appalling 1990 Oka standoff, former prime minister Brian Mulroney deplored the incident in a speech— but then accelerated the process of landclaim settlements. Similarly, B.C. Premier Mike Harcourt capitulated to three renegade bands that erected blockades on a public road in November, 1994, to prevent access to a ski resort. ‘The blockade cost the resort $1 million a week in lost business,” writes Smith, “and within six weeks, Harcourt signed a treaty-like agreement with these bands—dubbed the Okanagan First Nation—in which the government recognized the bands’ ‘aboriginal rights’ to more than 400 square miles. The agreement allows the bands to ‘co-manage’ cattle grazing rights, mining claims, logging and other operations on Crown land. The ranchers, miners and loggers in the area were not consulted.”

Other governments, such as Ontario’s former NDP regime and that of Quebec Premier Jacques Parizeau, have given away the proverbial store to buy votes or purchase peace from potentially troublesome aboriginals. Parizeau tellingly gave himself the native affairs portfolio after winning election in September, 1994, in order to co-opt outspoken aboriginal leaders. This explains the fact that Cree Chief Matthew Coon Come, who told me in an interview last year that his people would boycott a referendum on separation, has backed off that threat after sweeteners were given by the province to his people.

Smith points out that politicians even make handouts without proper authorization. “The rule of law and the Constitution have been virtually ignored by governments’ efforts of recent years. The establishment of what amounts to a new province—Nunavut—[was done] without obtaining the approval of at least seven of the existing provinces as required under section 42 of the Constitution Act, 1982,” he writes. Another example is the federal creation of an aboriginal-only commercial fishery on the West Coast, billed as an aboriginal right. But Smith says there are numerous court cases that have determined that the aboriginal right to fish extends only to meeting personal food, social or ceremonial requirements.

Smith also complains about negotiations towards native self-government without due process. “Governments at both levels are proceeding [in native negotiations] on the basis that the concept of the inherent right to self-government is a third order of senior government in Canada, despite the fact that courts at the highest level have rejected the concept,” he writes. As Smith points out, reforms to native policy are required to meet Canada’s obligation to native people—and nothing more. To go beyond their legal entitlements is to do so at the expense of the rest of Canadians. Smith rightly suggests that all current native programs be phased out. He calls for the appeal of the Indian Act, including the tax exemptions it provides. Smith also recommends that land-claim agreements be limited to “the modest aboriginal interest” recognized by the B.C. Court of Appeal in a 1993 ruling on a sweeping claim by 51 hereditary chiefs. I would go further and insist that all settled claims be re-examined and renegotiated. Then I would never entertain future negotiations unless aboriginal claimants first set aside all their existing privileges.

Smith’s conclusions are well reasoned and represent a wake-up call to Canadians. His ideas should also be adopted by the current, and enormously expensive, Royal Commission on Aboriginal Peoples. Typical of Ottawa, that commission is grinding away with a budget of $50 million over four years. Fortunately for the country and the commission, Mel Smith has come up with the answers at no cost to taxpayers. He’s not only to be congratulated but to be heeded.