Open or Shut? Sample Chapter

Open or Shut? Why Canada is Better Off With Stephen Harper and How We Can Do Even Better is coming soon.

Part response to John Ibbitson's Open and Shut, the book will deal with various issues confronting democratic government in Canada. Most of these issues will be dealt with from a comparative perspective, comparing these issues in Canada to those in the United States, exploring how each country can learn from one another in addressing such topics.

This being said, at least one chapter will forgo the comparative perspective in order to address the topic more clearly in its Canadian context: that of aboriginal governance.

The following is a sample reading from Open or Shut, which will be available -- entirely gratis -- very soon.


Chapter 4

Breaking the Padlock on Aboriginal Governance

It’s no secret that deep governance issues have plagued Canada’s aboriginal communities for decades. It’s no secret to Canadians, and it’s certainly no secret to aboriginals.

Perhaps no one has described the democratic crisis in Canada’s aboriginal communities better than Calvin Helin, who is himself hereditarily to be a Chief of Northern BC’s Tsimshian Nation. In his book Dances With Dependency, Helin describes the situation in stark and candid terms:
What many young aboriginal people have seen is like a century-long thieves’ banquet masquerading as democracy under the so-called rule of law. They see federal politicians wilfully blinded to their reality by threatened political controversy from Chiefs whose interest is in keeping the banquet going – loudly let it be known that they expect their political contributions and support be returned once federal MPs are elected. Aboriginal youth see a system that cannot be reformed because the only way to reform is to ask the gorging banquet participants themselves to bring it to an end.
Few Canadians would recognize many aboriginal communities as something they would expect to find in Canada. In far too many of them poverty is endemic, corruption is rampant, human rights are not recognized, and democracy is a myth.

It’s only fair to note that not all of Canada’s aboriginal communities suffer from these shortcomings, but far too many do.

There are 752 aboriginal communities in Canada. This number includes 614 First Nations committees, 88 tribal councils, and 50 Inuit communities.

Many of these communities share a disturbing commonality: a legacy of corruption and undemocratic governance that continues to undermine the struggle against poverty in Canada’s aboriginal communities.

All of this as aboriginal communities in Canada continue to push for increased self-government.

There’s nothing wrong with aboriginal demands for self-government.

Self-government –- with all the responsibilities that come with it –- is actually the best means to empower aboriginals to address the problems in their own communities, ranging from poverty to educational deficits to substance abuse. It would give them the tools and the responsibility to address these serious problems.

However, full self-government, under the status quo in many aboriginal communities, should be considered a non-starter. Self-government cannot come without preconditions.

The most important condition must be that aboriginals elect their band leaders openly and democratically.

The undemocratic nature of many band council elections has been a problem in Canada for generations. In many cases it has allowed corruption to flourish on aboriginal communities, keeping aboriginals deadlocked in poverty.

A case in point is that of Manitoba’s Norway House Cree Nation.

In 2009, three Band Councillors were removed from office by the Norway House Election Appeal Committee after they had been found to have offered 95 electors new homes in exchange for their support in 2006 Band Council elections, as well as $40,000 in new furniture.

The appeal was initially denied after witnesses wouldn’t come forward. The band members filing the appeal insisted that the witnesses were being intimidated.

The intervention of a Federal Court was necessary in order to overturn the decision. The Court found evidence of blackmail, influence peddling, and other unlawful conduct in the 2006 election.

Other portions of the tale read like bad crime fiction. After a forensic audit of band finances was requested in 2007, the building in which pertinent documents were stored was “mysteriously” burned to ashes. Band members involved with the appeal of the 2006 election were summarily fired from their jobs, unjustly disciplined, or otherwise cost wages.

The three-year ordeal suffered by those who conscientiously objected to electoral corruption could have been spared if the Norway House Band Council had been elected under transparent, free and fair elections. Unfortunately for those involved, the Norway House Band was allowed to administer the election of their Band Council under band customs rules, which allows them to adopt their own election rules, as opposed to those contained in the Indian Act.

This only helped to obscure some of the irregularities from the prying eyes of anyone seeking to provide external oversight of such elections – provided that they bothered, and we will see shortly that officials responsible for this function often decline to carry it out.

The Norway House Cree are far from the only aboriginal council to be afflicted with such corruption.

Many cases of similar corruption have been documented. In many cases, however, the lack of significant and diligent opposition from within the community allowed the perpetrators of such corruption to get away with it.

There is an answer. Instead of elections within Aboriginal bands being overseen by the department of Indian and Northern Affairs, elections of band councils should be overseen by Elections Canada, or by equivalent officials within the province in which the band is located. Alternatively, Canada’s aboriginal communities could establish a federal elections regulator of their very own, provided that they can provide the accountability measures necessary to prevent abuses from within the system itself.

This should be regarded as more than a mere stop-gap measure – it should be regarded as an essential reform to accompany full self-government.

The need for democratic reforms on many aboriginal reserves goes beyond simply ensuring integrity in the electoral process. Of all the policy measures available to fight governmental corruption, democracy is the strongest.

Many aboriginal reserves are in desperate need of this measure.

Poverty levels on many aboriginal reserves are exacerbated by corrupt band leaders who take desperately-needed band funds for themselves. Justice for such actions is often a long time coming.

In 2010, two officials from the Mosquito Lake reserve near North Battleford, Saskatchewan pleaded guilty to fraud charges related to a $9.5 million settlement with the federal government. In all, the band’s Chief and four trustees were charged.

This is a far more common story than many Canadians realize. But it doesn’t have to be this way.

Aboriginal communities tend to lack some of the basic political institutions that allow dissenting voices to push back. There tends to be no formal political opposition within aboriginal communities, and no local institutions through which they can make their voices heard. More often than not there are no local courts, and there is no local media.

In many aboriginal communities, even if there were a local newspaper or radio station, the odds are that it would be controlled by the local Council, and through it the Chief.

To put it plainly, there are no checks on the power of a Band or Tribal Council.

The Department of Indian and Northern Affairs prefers to stay out of these matters, leaving it in the hands of the bands themselves to address – not only leaving the inmates in charge of the asylum, but leaving them with the means to steamroll any opposition to their self-indulgence.

Matters are even further exacerbated by the Chief’s role as financial gatekeeper. Chiefs can exert remarkable control over where welfare funds go, and to whom.

“Justice-seekers face the wrath of the leaders they want investigated,” explains Don Sandberg of the Frontier Centre for Public Policy. “They can be booted off their reserves, blacklisted from local employment, have their welfare withheld, and even have Child and Family Services take their children away.”

There are, of course, answers to these problems.

Strengthening human rights governance on aboriginal reserves is a big part of the answer. Empowering those victimized by such ham-fisted corruption to be able to seek redress before a court of law or a (preferably reformed) Human Rights Commission would go a long way toward slowing the rot of aboriginal governance, and toward eventually turning the tide back toward the rule of law altogether.

Unfortunately, when the Harper government moved to repeal sections of the Human Rights Act that exempt First Nations, it encountered opposition from First Nations, as well as from its Parliamentary opposition.

As with Bill C-7 (explained later in this chapter), aboriginal leaders complained that they weren’t consulted about the implementation of the Charter of Rights and Freedoms within their communities. (Many Canadians would certainly be surprised to learn that Canadians consult individual communities about whether or not human rights will apply there.)

It isn’t merely individuals such as Don Sandberg who feel that governance practices on aboriginal reserves are urgently in need of an overhaul. Calvin Helin believes that current governance practices disempower aboriginals:
The governance structure for aboriginals in Canada, I think they feel that it completely disempowers your average community member. The reason it does that is because what happens is first of all, you have an economic system where all of the wealth comes into the community in the form of transfer payments or welfare from the government and that is controlled by the Chief in Council. The Chief in Council in turn, as the gatekeepers to the cash, are elected by their community members but they are not answerable to their community members as in any other democratic system because the Indian Act sets out a system where if there is any problem, they are not answerable to their community. They are answerable to the Minister of Indian Affairs. That is just a recipe for corruption..
Disempowered citizens lead to weak democracies – provided that the government in question aspires to democratic governance at all. Helin describes many of the governance practices in Canada’s aboriginal communities far more befitting of a banana republic than of a Canadian democracy, and it would be hard to disagree with him.

In the absence of basic tools to hold governments accountable, corruption has become endemic in many aboriginal communities.

Corrupt government has direct consequences for those governed. These consequences become particularly pronounced when citizens have no means of pushing back. Helin contends that this has been particularly acute in aboriginal communities. The consequences have been negligible economic growth, increased dependence on social welfare programs, and terminally unhealthy communities.

Helin believes that aboriginal communities can rescue themselves, but remedial action by the federal government is necessary just to make this possible:
Confucius said, ‘If there is rot at the top, there is going to be rot at the bottom,’ and we will never be able to move forward with corruption in our leadership. We have to clean this up. Essentially, the Indian Act has to either be thrown out or revised. A step in the right direction would be to introduce accountability and transparency in legislation.
A question clearly remains about how many aboriginal leaders would tolerate the introduction of such measures. Previous experience suggests that many of them simply would not.

In Dances With Dependency, Helin describes aboriginal governance as a closed-loop system wherein power is concentrated within the hands of remarkably few people.

A particularly troubled office is that of Grand Chief. Each regional and federal aboriginal governance organization elects a Grand Chief, but the Grand Chief doesn’t necessarily enjoy the mandate that such a title would suggest. Because only Chiefs are allowed to vote on a Grand Chief, the case for the Grand Chief representing the entirety of their community is remarkably thin. Helin notes that in Northern Manitoba, only 32 out of 500,000 First Nations people get to vote for the Grand Chief.

“If the [Grand Chief] was directly elected not only would respect and support be restored to the office, the incumbent would be empowered with the independence to evaluate band performance objectivity and to act effectively and to address chronic leadership problems,” Helin reasons.

Helin notes that it isn’t merely regional assemblies that have these problems. The Assembly of First Nations, representing First Nations on a federal basis, suffers from the same shortcomings.

“The way that the electoral system operates for choosing the National Chief is akin to having some of the mayors across Canada select the Prime Minister, rather than the citizens,” he continues.

Matthew Coon Come, the former National Chief of the AFN once attempted to reform the election process, replacing the election by Chiefs with a direct election by all First Nations people within the auspices of the AFN.

Many local Chiefs rebelled against the very idea of it, suggesting that individual aboriginals weren’t adequately informed on the issues in order to vote for the National Chief. (Yet, as Helin points out, they seem to believe these individuals are informed enough to elect them.)

A similar drama surrounded Bill C-7, a bill to reform aboriginal governance.

Bill C-7 stemmed from the Supreme Court of Canada’s decision in the case of Corbiere v Canada, wherein the court ruled that excluding band members living off-reserve from participating in Council elections was contrary to the equity rights of off-reserve aboriginals.

Bill C-7 contained various reforms. One was to give the Canadian Human Rights Commission jurisdiction to address human rights complaints in aboriginal communities (bringing that pesky Charter of Rights and Freedoms into play once more). The bill also would have opened band council elections to more electors, and imposed greater standards of financial accountability to aboriginal communities.

While a survey determined that 51% of First Nations people supported the bill, the Chiefs themselves opposed it, and made sure that federal Members of Parliament knew it. The Chiefs argued that the bill would strip them of traditional rights, and colonialize the relationship between First Nations and the Canadian government.

Bill C-7 quickly passed its first two readings in the House of Commons, but would not see a third.

Yet as Helin points out, the Indian Act, for all of its advancements over the past decades, remains inherently colonial, with the Department of Indian and Northern Affairs continuing to keep an eye – even if an often not-so-watchful eye – on developments in aboriginal communities.

Never has the colonialism of the Indian Act been as prominently on display as it was during the residential school era.

Historians disagree whether residential schools were a well-intentioned but disastrously-implemented policy, or a tool of cultural genocide. Regardless, they clearly reflected a counter-productive approach to education that led to the debilitation, not the empowerment, of aboriginal communities.

The horrors of residential schools are well-documented, and need not be reproduced in these pages.

The ultimate short version of the tale is that a lack of transparency and accountability led to a historical situation in which churches tasked with the operation of these schools were able to treat their students as a source of revenue. An incentive to spend as little as possible on the education of the students combined with a lack of government oversight to produce horrific and abusive conditions.

This is the story of education treated as a tool of colonialism.

Conversely, however, the administration of educational institutions by aboriginal communities has also proven wrought with problems. The current situation facing the First Nations University of Canada is a clear example.

In 2010, the federal government announced it was discontinuing its funding to the institution following a number of unresolved scandals.

In 2008, the school was censured by the Canadian Association of University Teachers following a 2005 incident in which faculty members’ computers were searched during an internal audit.

The university’s board of directors were frequently found to put their personal political interests ahead of the academic well-being of the school.

At one point Murray Westerlund, the institution’s senior financial officer, was fired after criticizing swollen expense reports and the receipt of what he deemed to be inappropriate leave payments by school administrators. University administrators would claim that he had agreed to leave his position. He refuted this claim by filing a wrongful dismissal lawsuit.

Later that year, the university would announce that “inappropriate” use of its scholarship funds had depleted their resources. At the time of the announcement, a fund that should have held a $390,000 balance was instead less than $15,000.

This was after the federal government and the government of Saskatchewan had pledged to continue supporting the university provided that management of the institution would be overseen by the University of Regina.

Fortunately, voices from within the Federation of Saskatchewan Indian Nations, who operate the institution, were among the loudest calling for accountability, among them FSIN Chief Guy Lonechild.

As the role of education is integral to democracy, the role of education will be integral to reform of aboriginal governance.

Provided that strong enough accountability measures are in place, having aboriginal communities administer their own education institutions is clearly the best way to avoid tragic debacles such residential schooling. While the scandal that embroiled FNUC is discouraging, Guy Lonechild’s efforts to restore accountability are encouraging.

Calvin Helin would likely urge readers to imagine what he could do with a stronger democratic mandate.

The answer seems clear: great things.

Certainly, democracy doesn’t guarantee an end to corruption. The Sponsorship Scandal, as well as scandals in provincial governments across Canada, demonstrates that corruption can still infect democratic governments.

But a healthy democracy, featuring vigorous accountability measures, such as annual auditing, allows citizens to recognize corruption and, in the popular parlance, at the very least “vote the bastards out”. The presence of an Auditor General, or equivalent officer (Helin recommends a federal First Nations ombudsman), and the public backlash that corruption inevitably provokes, introduces incentives to honesty and disincentives to dishonesty that are unique to democracy.

Helin’s recommendation of a federal First Nations ombudsman is a good place to start. However, the detail that the Department of Indian and Northern Affairs only knows about a minimal number of corruption complaints against aboriginal governments in Canada underscores the fact that relying on a federal agency to oversee and audit aboriginal communities simply doesn’t work.

Rather, each individual aboriginal community must be empowered – and, in order to receive any transfers from any level of government, required – to periodically audit themselves, and make the results of that audit available to the general public.

One shouldn’t make the mistake of thinking that the establishment of auditor’s offices alone will guarantee better or stronger governance. As former Alberta Liberal leader Kevin Taft points out in his book Democracy Derailed, an auditor is only as strong as their mandate, and as the amount of support they receive from government.

For a quick comparison, the difference in the effectiveness of federal Auditor General Sheila Fraser and Albertan Auditor General Fred Dunn is quite striking.

Taft’s comparison of Dunn’s work to that done by his federal counterpart reminds one that a government that wishes to hamstring accountability can find plenty of means to do so. In Alberta, Dunn is hired by the Legislative Offices Committee, which also oversees his budget.

The Legislative Offices Committee is largely made up of government MLAs. The practical applications for Dunn are perfectly evident: if he doesn’t please the governing party, he won’t be re-appointed.

The government of Alberta can also hamstring accountability through the operations of its Internal Audit Committee. The government’s Internal Auditor reports directly to the Internal Audit Committee and to cabinet. Their reports are notoriously slow in reaching public attention, and could even give government departments time to cover-up any burgeoning scandals before they reach the attention of the Auditor General.

As opposed to the Auditor General and the Internal Audit Committee working together to enhance accountability, Dunn is instead encouraged to defer to the findings of the Internal Audit Committee – provided that he has access to them, which he often does not.

To be fair, as of the writing of this book, no major Adscam-level scandal has been uncovered in the province of Alberta. But with the sheer scale of the wealth that has passed through government coffers in the province, it should be considered increasingly unlikely that such scandal could present itself. (This is merely a caveat.)

Without appropriate levels of accountability, any amount of wealth transferred to aboriginal communities from the federal government is merely asking for the well-documented scandals in many aboriginal communities.

As it pertains to fiscal transfers themselves, the nature and source of those transfers should be considered open to debate.

Currently, aboriginal communities in Canada receive transfers from the Department of Indian and Northern Affairs. This is part of what renders the Indian Act so inherently colonial. This underscores a “wards of the state” approach to aboriginal affairs that desperately needs to be turfed in favour of a superior model.

Whether this model continues to be based on reservations or not can only be up to aboriginals themselves to decide. But the best results of aboriginal reform will almost certainly come from open collaboration between aboriginal communities and various levels of government.

Aboriginal communities may find that they are no longer content with effective “outsider” status as it pertains to Canadian government. The best results may come with efforts to, for the first time, include aboriginal governance within Canada’s constitutional framework.

The political peril of such an initiative cannot be underestimated, as it will almost certainly require constitutional amendment.

As Canadians remember, the constitutional negotiations of the 1980s nearly led to the breakup of the entire country. It seems that whenever the Constitution is opened for negotiation, competing grievances from across the country threaten to tear it asunder.

The risks are thus duly noted, but the reward, in terms of aboriginal governance, may be worth it.

It may be worth considering the option of organizing Canada’s aboriginal communities, based on treaty areas, into a level of government that would have the same powers as any of Canada’s provinces.

Under such a system, these new governments would become partners in the Canadian federal enterprise, equal to the provinces. Transfers from the Department of Indian and Northern Affairs would be replaced by direct government-to-government transfers.

Such a reform shouldn’t be treated as a panacea for all the problems related to aboriginal governance in Canada, but it would at least solve some key jurisdictional problems while introducing an incentive for reform.

Most importantly, not only would such reform open aboriginal governance to more of Canada’s aboriginals, it would also open the tools of government to aboriginal communities. Under such a structure, aboriginal communities would be able to exercise the same powers as any Canadian province in order to develop and grow their economy, including the authority to tax residents if they deem it necessary.

There are, of course, other sticky matters that would need to be addressed.

University of Calgary political scientist Tom Flanagan tends to provoke controversy when he writes or speaks about aboriginal affairs, so the controversy that emerged when he suggested that aboriginals should be granted property rights under their land was predictable.

Under a constitutional reform such as the one suggested here, the land currently occupied by aboriginal reservations would essentially assume a status similar to Crown lands in the rest of the country: available for sale or use as collateral without actually severing the lawful authority of aboriginal governments over that land.

This is only one more asset such a reform would put in the hands of aboriginal communities.

Whether or not such a constitutional reform is adopted, it’s clear that something must be done. The democratic deficit in Canada’s aboriginal communities is perhaps the greatest obstacle to eliminating aboriginal poverty.

It would be one thing if the democratic deficit were limited to electoral processes within their communities. But there is a deeper, and potentially even more substantive issue underlying the entire topic: that of First Nations citizenship.

It’s worth noting – albeit at risk of nit-picking – that even Calvin Helin uses the phrase “First Nations people”, as opposed to the phrase “First Nations citizens”. As cases such as the long ordeal of Sharon McIvor – who legally contested the Department of Indian and Northern Affairs’ demonstrably-discriminatory treatment of aboriginal women and won – have come to a close, the principle preoccupation is whether or not individuals hold status as an aboriginal.

Canadians have long been familiar with the rights imparted to aboriginal communities via treaty. Of greater question – and pertinence – is the question of what rights aboriginals can expect to enjoy within their communities, and what responsibilities they will hold.

What form reforms of aboriginal governance in Canada takes, this will be an unavoidable question for Canada’s aboriginal communities.

The unavoidable question for Canada as a whole is whether or not aboriginals, given the opportunity to choose to formally join confederation on a formal constitutional basis, would choose to do so.

Such an arrangement would, for the first time in far too long, treat Canada’s aboriginals as equals, as opposed to wards of the state, glorified or otherwise. It would represent a paradigm shift that has often been reflected in popular political rhetoric, but largely has not been reflected by government policy.

Canadians need to have an answer to the question of what Canada is prepared to offer to aboriginal communities under such a key paradigm shift.

What is Canada prepared to offer to aboriginals as equals? Aboriginals have the right to know, and will certainly ask.

Calvin Helin. Dances With Dependency: Indigenous Success Through Self-Reliance. Vancouver: Orca Spirit Publishing. 2006.

CBC News. “Scholarship Fund Almost Gone, FNUC Says”. March 8, 2010.

Don Sandberg. “First Nations Electoral Corruption Common”. Frontier Centre for Public Policy. 2007.

Don Sandberg. “Corruption Infects the Councils of Many First Nations Reserves”. Montreal Gazette. February 2, 2009.

Don Sandberg. “First Nation Fraud Case Encouraging”. The Epoch Times. September 16, 2010.

Frontier Centre for Public Policy. “Calvin Helin, Aboriginal Entrepreneur and Author of Dances With Dependency”. Frontier Centre for Public Policy. June 25, 2007.

Kevin Libin. “Full Transcript of Q&A With Calvin Helin”. The National Post. January 17, 2008.

Kevin Taft. Democracy Derailed: The Breakdown of Government Accountability in Alberta and How to Get it Back on Track. Red Deer: Red Deer Press. 2007.

Patrick White. “Native University Pulled Back From Brink”. Globe Campus. February 16, 2010.