Speaking with Authority

The Emergence of the Vocabulary of First Nations' Self-Government

Michael W. Posluns

• Publisher: Routledge
• Year: 2006
• ISBN:
  9781135940393
• Edition: 1
• Topic: Social Sciences
• Subtopic: Cultural & Social Anthropology
• Index: Social Sciences

This work explores the emergence of the vocabulary of First Nations' self-government into the realm of public and parliamentary discourse in Canada during the decade of the 1970s. The emergence of the vocabulary is chronicled through a study of the testimony of First Nations and aboriginal witnesses before a series of Joint Committees on the Constitutions and the Commons Committee on Indian Affairs and Northern Development.

Chapter One
The Interplay of Language, Policy and Ethics in the Discourse of First Nations’ Relations

The words “treaty” and “nation” are words of our own language, selected in our own diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to other nations of the earth. They are applied to all in the same sense.

Chief Justice John Marshall,
United States Supreme Court,
Worcester v. Georgia

HOW AND WHY FIRST NATIONS RELATIONS ARE UNLIKE ANY OTHER ARENA OF PUBLIC POLICY

Several factors make the dynamics of this policy arena different from the interplay of ethics, language and policy development in other policy arenas. First, Aboriginal rights are, as Dickson C.J.C. observed in Guérin, sui generis,¹ i.e., they constitute “their own kind or class” and are “unique.”² The contestation of the meaning, nature and reality of these unique rights has been a major theme running throughout the history of First Nations relations³ and forms the major part of the discourse for which an analytical framework is wanted here. Secondly, there is, to my knowledge, no other field in which senior officials have testified before parliamentary committees that it is the objective of government policy to end the presence of an ethnic group or nationality in Canada.⁴

Thirdly, the discourse has been radically shaped by the division of powers in the Canadian constitution which provides that “Indians and lands reserved for the Indians”⁵ are exclusively federal jurisdictions. This point is particularly significant in an examination of federal parliamentary committee proceedings. Most of the matters discussed in the Indian Affairs Committee are matters which, in respect of non-Indian persons and communities in Canada, would be matters of exclusively provincial jurisdiction: health, education, infrastructure, community development, band councils and their powers under the federal Indian Act. Legal scholars outside the federal government seem widely agreed that “Indians” and “lands reserved for the Indians” are two distinct powers, both federal. As recent as 2005, however, Indian Affairs officials told a Senate Committee, in hearings on a bill to establish a procedure for recognition of First Nations self-government on Aboriginal Peoples that “education off-reserve” would fall under provincial jurisdiction.⁶

This is more than a jurisdictional difference. Whatever democratic deficit may be apparent in historic or contemporary provincial governments, the people whose health, education and municipal institutions are subject to the jurisdiction of that legislature are the same people who elect that legislature.⁷ There is a common cultural ground between governed and governors.

The terms of political discourse are largely shared by legislators, journalists and academics. Senior officials, the most frequent witnesses before parliamentary committees, must have some expectation that their vocabulary will be understandable to their major clients, other stakeholders and even to the members of parliamentary committees. In contrast, new members on the Commons Indian Affairs Committee, in the period under examination, were typically unfamiliar with both the geography of “Indian country” and the terms of Indian political discourse. Yet, it was these same new MPs who often cast deciding votes to sustain government spending priorities and to ignore the criticisms offered of First Nations political leaders.

Fourthly, the public discussion of “First Nations relations” in Canada has, in reality, been a discussion of federal Indian policy. Historically, and especially prior to the period about which I am writing, there had been little or no consideration of the perspectives of First Nations leaders. On the contrary, for large parts of the history of this discourse, federal statutes have prescribed severe punishments for certain types of expressions by First Nations viewpoints, including the potlatch prohibitions, the pass laws, and the 1927 prohibition against the raising of funds for the purpose of pressing land claims.

When large parts of political discourse by First Nations citizens have been subject to criminal sanctions, the terms of identity politics,⁸ as they have been conceived in other contexts do not constitute a satisfactory analytical framework for First Nations relations, although they remain useful background to which reference may be made. Indeed, in Chapter Two, “An Overview of First Nations Relations before 1970,” I will argue that this history has been characterized by three interwoven themes: (1) assimilation and termination; (2) civil disabilities; and, (3) language inversion.

Lastly, a discourse of autonomy might well be said not to be a policy discourse if policy is understood to mean what the federal government does rather than what it says. Conversely, the corollary of the federal insistence on making policy is a refusal to allow First Nations to exercise their autonomy. The most substantial components of a discourse of autonomy are about the development of institutions of self-government, developments which preclude the further articulation of policy on the part of the federal or provincial governments and the failures of federal policies in specific areas which are, according to opinions reviewed in this study, calculated, in part, to undermine the development of First Nations institutions.

Imposition of federal policies without consultation, or contrary to the advice received in consultations, even when not illegal⁹ has been characterized, both by First Nations leaders and by the courts, as violating Aboriginal and treaty rights. One form of federal imposition, which has elicited particularly vehement First Nations opposition, is the transfer of various aspects of Indian policy to provinces. The administrative transfer of federal powers to provincial governments necessarily runs counter to any constructive pursuit of First Nations’ autonomy.¹⁰

The full development of self-government, as envisaged in The Report of the Special Committee on Indian First Nations Self-Government (Penner 1983),¹¹ The Report of the Royal Commission on Aboriginal Peoples (RCAP)¹² (1996) and in Forging New Relationships, a 2000 report of the Senate Committee on Aboriginal Peoples, would represent a federal no-policy in respect to any particular field of jurisdiction, i.e., the federal role would consist, not of making and administering policy but of refraining from developing policy beyond protecting a First Nation’s occupation of a group of legislative fields.¹³

In a very real sense, this is not a study of a policy discourse but a study of a metapolicy discourse centred on the recognition of First Nations’ autonomy, the development of the institutions of First Nations’ government, and the fiduciary obligation of the federal government to protect those institutions.

In this section I will briefly touch on the works of William Connolly (Identity/Difference), Coleman and Skogstad (Policy Communities and Public Policy in Canada), Deborah Cameron (Researching Language) and David Bell (Power, Influence and Authority) as well as a number of encyclopedic references regarding discourse and concepts related to discourse. My purpose is not to provide a comprehensive review of these materials but to indicate that, although they have been helpful, there is a need to look beyond them if the discourse of First Nations’ autonomy is to be better understood.

ETHICS, POLICY AND LANGUAGE

The most fundamental relationship between ethics and policy arises from the idea that politics is basically about power relationships. Policy is an attitude manifested, through both words and by direction actions, by those with some claim to having power to effectively influence the direction in which decisions of a given agency proceed. The term “attitude,” as the dictionary indicates, includes both mental attitudes, “a way of thinking,” and physical attitudes both of persons and of vessels in relation to the horizon.¹⁴ The integration of mental and physical states is what makes the term peculiarly appropriate to describe policy. A minister’s statement may reflect an objective, to which he aspires; however, if the machinery¹⁵ of the department is not engaged in accomplishing that objective, the statement might better be described as a “policy goal” rather than an existing policy or even a policy objective.

The perception of policy as an attitude manifested in the actions of a department or agency has three advantages for the discussion of a metapolicy such as First Nations relations. First, it distinguishes between what is said and what is done. The history of federal Indian policy is rife with examples that demonstrate that the mere publication of a policy statement does not establish policy. Secondly, it is a definition that keeps one eye on departmental practices while keeping the other on overall direction. What actual steps toward the winding down or restructuring of the Indian Affairs Branch were initiated by the introduction of the 1969 White Paper, a document actually entitled Statement of Indian Policy? What actual changes resulted from the supposed 1971 withdrawal of the White Paper? Or, from the 1973 statement of the then Minister of Indian Affairs, Jean Chrétien, that the NIB position paper, Indian Control of Indian Education would become departmental policy? In none of these cases is it evident that the mere uttering of a policy statement established a policy direction. Thirdly, when several departments have a role in a given policy arena there is little historical evidence to support an expectation that all departments will follow the same policy. C.S.I.S. and the R.C.M.P. do not have consistently uniform policies. Legislative chambers, line departments and central agencies frequently disagree quite openly.

The claim to make policy supposes the power to significantly influence the course and direction of policy. Removing criminal sanctions against Indians’ attempt to influence federal Indian policy did not mean that Indians actually acquired influence. Persons, such as the heads of client industries of Indian Affairs and Northern Development are likely to wield much more influence.

For purposes of federal Indian policy, I would regard the policy network as the persons with power, authority or influence to affect the course of actual federal policy. Whether First Nations leaders are possessed of such influence is a much debated question, the exploration of which leads one into the contests over such terms as “consultation” and “partnership.” It is not self-evident that the opportunity to submit briefs to public and parliamentary inquiries or attend “consultations” with middle ranking civil servants constitutes a palpable influence on the actual course of policy.

People, including the greater part of First Nations communities whose lives are largely governed by such policy making, do not have power and are effectively outside the policy community. “Policy communities are institutions in themselves and become integrated to greater or lesser degrees by developing a set of shared values, norms and beliefs which shape . . . the policy outcomes in the given sector.”¹⁶

This asymmetrical power relationship creates ethical obligations on, or at least raises ethical questions about those with a policy capacity for which there is not a reciprocal set of questions for those without power.

BUREAUCRATIC PRAGMATISM AND A LACK OF ETHICAL CONCERN

In Identity/Difference, William E. Connolly, says, in regard to the question, “Why be ethical?”

Not why be ethical, then, for if someone really . . . poses that as the question to be answered first, he or she is probably beyond the effective reach of ethical concern.¹⁷

The significance of Connolly’s observation that those who do not understand the need for ethics are probably beyond the reach of ethical concern has particular significance for First Nations relations in contemporary as well as historical terms. The history of First Nations relations is a long and complicated narrative in which those in positions of power, influence or authority were exempted from ethical concerns.¹⁸ This lack of ethical concern is exemplified in numerous memoranda and voluminous correspondence amongst public servants in both the Department of Indian Affairs and the central agencies to which those officials are allied. Senior officials, in recent years, have characterized such concerns as “purist” and “naive” while elevating their own posture by the term “pragmatic.”¹⁹

The range of examples of those who may be “beyond the effective reach of ethical concern” while participating in some aspect of First Nations relations, even today, appears quite endless. A school system which achieved a mortality rate approaching 50% through neglect and malnutrition might well be thought to be “beyond the reach of ethical concern.”²⁰ In 2001, the Anglican Church of Canada and other Christian churches asked the government to limit their liability for damages suffered by children under their care.²¹ Any such limitation imposed by the legislature would be tantamount to imposing a civil disability²² since it would bar Indians from access to the courts and limit their right of petition.²³ This is a curious companion piece to the recent apologies from the same churches. The apparent support for their lobby in all corners of both Houses assures us that such logic chopping is not limited either to the clerical professions or to the professionally religious.

These beliefs about how life should be lived, what men and women should be and do, are objects of moral inquiry; and when applied to groups and nations, and, indeed, mankind as a whole, are called political philosophy, which is but ethics applied to society. ²⁴

If we accept Isaiah Berlin’s view that “political philosophy is but ethics applied to society,” then there is, indeed, no other place to begin a theory of discourse relevant to First Nations’ relations than to address the question of “why be ethical?” Far from such an approach being merely academic, it is quite consistent with methods used in prog...