NORTH SHORE TRIBAL COUNCIL NORTH SHORE FIRST NATIONS GOVERNMENT SUBMISSION TO THE ROYAL COMMISSION ON ABORIGINAL PEOPLES

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1 F^p-SUB.D3 1 October 15, 1993 NORTH SHORE TRIBAL COUNCIL NORTH SHORE FIRST NATIONS GOVERNMENT SUBMISSION TO THE ROYAL COMMISSION ON ABORIGINAL PEOPLES October 1993

2 NORTH SHORE TRIBAL COUNCIL NORTH SHORE FIRST NATIONS GOVERNMENT SUBMISSION TO THE ROYAL COMMISSION ON ABORIGINAL PEOPLES INTRODUCTORY COMMENTS This submission is the culmination of an internal consultation process coordinated by the NSTC, and reflecting the North Shore First Nations' vision for the future which we have been developing both individually and collectively, through our self government and other initiatives, since the 1980s. That consultation process was described in our December 1992 supplementary proposal to the Royal Commission's Intervenor Participation Program. We would express at the outset our appreciation to the Commission for making funds available to the North Shore First Nations to support the preparation of this submission. We, the North Shore First Nations and Tribal Council, believe that we are uniquely situated to provide useful insights to the Royal Commission, given the broad range of initiatives undertaken to date by the Tribal Council, and especially our current Self Government initiative and experience. This submission will address a broad range of themes related to the terms of reference for the Royal Commission on Aboriginal Peoples. To highlight, this submission... * examines * reveals our experience * identifies challenges to be met * and suggests possible solutions and strategies... in relation to the following issues: a) our general position in relation to the inherent right of self government

3 F^p-SUB.D3 2 October 15, 1993 b) the current North Shore First Nations Government Initiative c) issues for negotiation - challenges to be met d) current federal policy and environment e) current provincial policy and environment f) the progress and mandate of this Royal Commission A BRIEF COMMENT ON THE PREPARATION OF THIS SUBMISSION In our July 1992 proposal and December 1992 supplementary proposal to the Royal Commission on Aboriginal Peoples, the North Shore Tribal Council undertook to thoroughly examine the primary themes highlighted in this submission. WHO WE ARE - THE NORTH SHORE FIRST NATIONS AND TRIBAL COUNCIL What follows is intended to provide a brief overview for Commissioners of our history and present-day initiatives and activities. North Shore First Nation (NSFN) members are Ojibway people whose ancestors inhabited the northern shore and interior of Lake Huron and Lake Superior before the arrival of Europeans in North America. The NSFNs are signatories to the Robinson- Huron Treaty of The North Shore district extends along the north shore of Lake Huron and Lake Superior, from Sudbury to Sault Ste. Marie. Within this district are the seven member First Nations of the North Shore Tribal Council: Batchewana * Garden River Mississauga * Sagamok (Spanish River) Serpent River * Thessalon Whitefish Lake The NSFNs range in size from 176 to 1480 members (1988 census figures) and have a combined population of over 6000 people. The NSFNs have a history of cooperative interaction, and have maintained a special relationship amongst ourselves through our shared language, our understanding of the

4 F^p-SUB.D3 3 October 15, 1993 land, and through the principles and values which make up our spiritual foundations. In 1981, the NSFN Chiefs established the North Shore Tribal Council (NSTC) as a forum in which to pursue the collective interests of the NSFNs. The purpose of the Tribal Council as defined in its constitution is to "generally unify, maintain, and expand the interests, lives and identity of member Bands." To meet its objectives the Tribal Council is empowered to advance positions taken by the Council, establish policies and strategies which are acceptable to members, and promote local Band government through its various operations, programs and services. The principle of consensus decision making informs activity at all levels of the organisation. The Tribal Council incorporated Mamaweswen - the NSTC Secretariat, in 1985, to assist in fulfilling its mandate. The main functions of Mamaweswen are non-political, but are linked to the initiatives of the NSTC through administrative, financial management, program and service delivery and research and development functions. A copy of the NSTC organisation chart is included with this submission. Through Mamaweswen, the NSTC manages, operates and delivers programs and services to its member First Nations in such areas as: a) Financial Management * financial planning * financial management * training b) First Nation Government Support * First Nation Council procedures * training * interpretation of statutes and authorities * regulatory compliance * bylaws: passage, implementation, enforcement c) Economic Development

5 F^p-SUB.D3 4 October 15, 1993 * coordination of First Nation Economic Development Officers * consultation on multi-first Nation projects d) Technical Advisory Services * capital planning * community planning * systems planning and design * technical systems * regulatory requirements * capital asset inventory systems * service and equipment procurement e) Social Development * assist First Nations in social services planning and development f) Community Health Unit * health services coordination * planning and development * advisory services * training g) Treaty Research * land claims research * treaty rights research h) Enterprise Circle * network support * resource services * training services * technical services

6 F^p-SUB.D3 5 October 15, 1993 i) Education Unit * promote and support educational goals and objectives of member First Nations * lobbying of federal and provincial governments on education issues j) Environment Unit * participation in Timber Management Hearings and Ontario Hydro Demand Supply Plan Hearings * lobbying and advisory services on environmental issues affecting First Nations k) Forestry Unit * provide services to member First Nations in forest related activities * technical and professional assistance and support in forestry planning, silviculture and harvesting operations * provide forest management and planning expertise to member First Nations I) Communications Unit * coordination of communication activities, including video productions * provide a monthly newspaper to member First Nations * the planning, development, and implementation of a multi media communications plan/strategy for the NSTC In addition to its ongoing programs and services, the Tribal Council has chosen to pursue various initiatives to enhance First Nations government and community control in social, cultural, economic and political development. Recent undertakings have included: 1) Health Services Transfer * now at the Memorandum of Understanding stage * to enable member First Nations to design health programs and establish services

7 F^p-SUB.D3 6 October 15, 1993 * to ensure public health and safety is maintained 2) Anishnabie Naadmaagi Gamig Substance Abuse Treatment Centre * provides substance abuse treatment to First Nation members * philosophy of the treatment centre is the recognition of strength and soundness of the Anishnawbek culture, values, beliefs, medicine and healing practices * treatment process consists of a twenty-eight day cycle during which the following will be provided: assessment; spiritual meetings; individual counselling; group counselling; access to A.A. 3) Nog-Da-Win-Da-Min Family and Community Services * delivers community based and culturally appropriate care to children and their families within the member First Nations * provides prevention services, counselling, family support, outreach and cultural resourcing 4) North Shore First Nations Government Initiative * initiative is now in its fifth year * supported by the North Shore First Nations Government Program which supports member First Nations * in April 1991 the North Shore Tribal Council and Federal Government signed a Framework Agreement to negotiate the recognition of the right to Self Government 5) Chi-Gaaming Technical Self-Service Group * operated jointly with United Chiefs and Councils of Manitoulin * provides services to member First Nations in the following areas: capital projects management; engineering services and technical advisory services 6) Anishnawbek Energy Corporation

8 F^p-SUB.D3 7 October 15, 1993 * partnership with the Ontario Energy Corporation * explore energy development potential in the form of hydraulic and other methods of electrical generation * explore the feasibility of an aboriginal owned, operated and administered regional electrical utility for the member First Nations * create revenue and employment for First Nations and its members Through these development initiatives, programs and services, the NSFNs through the NSTC are striving toward and achieving a greater degree of control over our own people, lands and resources.

9 BAND MEMBERS OF THE NORTH SHORE FIRST NATIONS BATCHEWANA FIRST NATION COUNCIL GARDEN RIVER FIRST NATION COUNCIL THESSALON FIRST NATION COUNCIL MISSISSAUGA FIRST NATION COUNCIL SAGAMOK FIRST NATION COUNCIL SERPENT RIVER FIRST NATION COUNCIL 1 WHITEFISH LAKE FIRST NATION COUNCIL TREATMENT CENTRE NOG-DA-WIN-DA-MIN ANISHINABEK ENERGY CORPORATION MAMAWESWEN The North Shore Tribal Council (14 Board Members) Executive Committee Chariman, Vice-Chairman, Treasurer Tribal Administrator Pre-Health Transfer Study Planning Project Self Government Planning Project CHI-GAAMING TECHNICAL SERVICES Human Services First Nation Government Advisor Financial Advisor Treaty Researcher Health Unit Director Enterprise Circle General Manager Administration Financial Controller Technical Services Unit Director FORESTRY COMMUNICATIONS SOCIAL DEVELOPMENT SERVICES ENVIRONMENT

10 F^p-SUB.D3 9 October 15, 1993 WE ARE SELF GOVERNING - HISTORICAL CONSIDERATIONS The North Shore First Nations take the position that historically and to the present day we have been and are sovereign peoples - part of the broader Ojibway Nation. Our inherent right to govern ourselves was confirmed and never given up when our ancestors signed the Robinson-Huron Treaty in We take the position that our right to Self Government is an Aboriginal right which is recognised and affirmed under Section 35 of the Constitution Act, For over 100 years, the original occupants and First Nations have confronted a situation where the Government of Canada, the provincial governments and the courts have: consistently refused to recognise and respect our governments and their authority; have enacted laws, including the Indian Act, which without consultation or consent broke the understandings that were reflected in the signing of treaties, by assuming the complete legal authority over most decisions that involve or affect our people and our nations; have engaged in actions which have had the effect of taking, without consent, lands and resources of the First Nations; and have interpreted our rights in a manner that has resulted in the distribution of the wealth of Canada in such a way that sees the membership of our First Nations suffering in the absolute worst of socio-economic conditions of any Canadians. See Attorney General of Canada v. Attorney General for Ontario ( Robinson Treaties Annuities Case) ROBINSON - HURON TREATY, 1850 When the settlers started arriving on our Anishnabe lands and when those settlers started taking the forests and minerals in contravention of the Royal

11 F^p-SUB.D3 10 October 15, 1993 Proclamation and when the Anishnabe made complaints to the United Kingdom as well as actively protecting the lands the Robinson-Huron Treaty was negotiated. The Robinson-Huron Treaty was negotiated in the Bawating (Sault Ste. Marie Area) territory. Many Anishnabe leaders and representatives took part in the negotiations including all of the North Shore Tribal Council First Nations. Serious interest in Indian lands on the northern shores of Lake Huron and Lake Superior began in the late 1840s. Mining interests sent prospectors, surveyors and engineers into the region and, at that same time, applied to the Crown Lands Department for licenses to exploit whatever mineral deposits could be found. Although no policy or law existed to allow this activity the Department issued over 30 licences to various mining interests. The activities angered the Indians. Indian protests embarrassed the government which had obviously neglected Indian interests when issuing the mining licences. At first, Indian claims were simply denied, but the Governor General, Lord Elgin, insisted that these claims be investigated. With the approval of the executive council, two investigating missions were sent into the Indian country. In 1848, T.G. Anderson, the investigating agent reported that the Indian claims were valid. In 1949, a two-man commission of Anderson and Alexander Vidal, a land surveyor from Sarnia, also reported the view that the Indians of the region, numbering about 2400, had valid claims to the land and possessed the right to compensation for it. Based on these findings, the Crown believed the solution was a land cession agreement which would settle Indian claims and open the region to mining activities. When a band of Indians and Metis from the Sault Ste. Marie region attacked and captured the Quebec Mining Company location at Mica Bay in November 1849, the need for a settlement of some kind was emphasized. The man chosen by the Executive Council to effect such an agreement, was William Benjamin Robinson. After taking an exploratory trip through the region in April and May, Robinson opened negotiations on September 5, 1850 with several tribes who gathered at Sault Ste. Marie during late August. The negotiations were tense and difficult, because Indian leaders like Chief Shingacouse of Garden River were determined to do their best for their people. Generally referred to as the Robinson-Huron treaty, the written version of the agreement of September 9 called for the cession of the Lake Huron shoreline, including the islands, from Matchedash Bay to Batchewana Bay, and inland as far as the height of land.

12 F^p-SUB.D3 12 October 15, 1993 The Robinson-Huron treaty provides for a schedule of 21 reserves. The individual chiefs were, in most cases, permitted to choose the specific locations, which usually meant an area they had long been accustomed to using as either a fishing station or a summer encampment. The Robinson-Huron treaty contains a clause stating that the reserves could not be sold or leased by the Indians without the consent of the Chief Superintendent of Indian Affairs. This principle dated back to the Royal Proclamation, and had been tacitly understood by all parties in the intervening years. The 1850 agreements were the first to have the provision actually included in writing. By signing the treaty, the Anishnabe agreed not to interfere with prospecting activities anywhere in the ceded area. If valuable minerals were found on any of the Indian reserves, and should the band involved wish to dispose of it, the sale would be conducted by the Chief Superintendent of the Indian Department "for their sole use and benefit and to the best advantage". Similarly, the proceeds of mineral rights on reserved lands leased before the treaty were to be directed to the band to which the reserve belonged. It was clearly stated in the Robinson-Huron treaty that the chiefs and their bands would have "the full and free privilege to hunt over the territory now ceded by them and to fish in the waters thereof as they have heretofore been in the habit of doing" except in areas that would become private property. Remuneration for the lands included the use of a lump sum payment and annuities. Each Anishnabe group represented at the treaty received an immediate payment of 2000 pounds currency with an annuity of 500 pounds to follow each year. These sums were paid in cash. The annuities were to decrease with a decline in population. In this case if the population decreased to two-thirds, the annuity would be reduced proportionately. If the sale of surrendered lands and resource development produced a return that was greater than expected, the annuities were to be increased at the Crown's pleasure. The Anishnabe leaders and representatives that took part in the treaty negotiations were not Chiefs and Councillors under the Indian Act. The leaders and representatives that took part in the treaty were there as the leaders and representatives of the Anishnabe governments of the communities that they came from.

13 12 October 15, 1993 The representatives of the Government of the United Kingdom that took part in the treaty did not make the rules and decisions as to which Anishnabe representative would be there and they did not force the Anishnabe to take the treaty. The Anishnabe could have declined to enter into the treaty. Our oral traditions establish that the Anishnabe were asked by the United Kingdom representatives to share the lands and the resources. The Anishnabe were not asked to give up their right to self-government. The Anishnabe agreed to share the lands and resources except the lands and resources they chose to keep as Anishnabe reserve lands. The Anishnabe also ensured that they could continue to hunt and fish on all of the lands that they were agreeing to share. The Anishnabe did not volunteer to let the Government of the United Kingdom interfere in their self-government. The Robinson-Huron Treaty continues to be in effect today. The treaty has not been changed. The treaty is a legal and historical document that is binding on the Anishnabe and Crown. OUR GENERAL POSITION A continuation of this situation is totally unacceptable to the North Shore First Nations. It is clear that the immediate future must see: recognition by the federal and provincial governments of our inherent right to Self Government the detailing of the jurisdiction and powers of First Nations, as well as federal and provincial governments, on a government to government basis the reflection and protection of this right to govern ourselves within a revised Canadian constitution the negotiation of new government to government fiscal relationships, which will assure each First Nation the ability to meet the needs of their membership and sustain the development and operation of their government structures, programs and services

14 13 October 15, 1993 the clear respecting of the rights assured to us under the Robinson-Huron Treaty of Such as an increase in the annuities, respect of our commercial fishing rights. THE NORTH SHORE FIRST NATIONS GOVERNMENT INITIATIVE Following the failure of the constitutional discussions, the North Shore First Nations commenced the work required to detail how we see our right to Self Government and what it will mean for the future. Our Framework Agreement In April 1991, following community level discussions, we signed a Framework Agreement to enter into negotiations with the federal government for the recognition of our right to Self Government. The Framework Agreement provides the agenda of subject areas for discussions, and defines the negotiation structures and processes. The object of the discussions is to arrive at an Agreement-in-Principle for North Shore First Nations Government. NSFN Government Agenda for Negotiation The agenda of subject matters for negotiation contained in our Framework Agreement is extremely comprehensive (see page ). Generally, our negotiating positions reflect the conviction that recognition of our status and powers of First Nation government involves a full recognition by the Governments of Canada and Ontario of our capacity and legal authority to control our own people, lands and resources and in so doing, our own social, economic and political evolution and development for the future. Negotiation Processes and Structures Under the Framework Agreement, both parties have appointed Negotiation Teams to represent them in negotiations. These teams meet approximately monthly as the Joint Negotiating Committee, to exchange positions and reach sub Agreements-in-Principle leading to an overall Agreement-in-Principle. The Joint Negotiating Committee is assisted in its work by three Joint Working Groups These working groups are nonnegotiating forums carrying out research and preparatory work to support eventual negotiations in such areas as:

15 F^p-SUB.D3 14 October 15, 1993 * Lands and Resources * Implementation and Training * Financial Arrangements Approach taken The NSFNs view our participation in the current NSFN Government negotiations as follows: we are working on the clear basis that the discussions will be focused on achieving recognition of the substance of what our inherent right to Self Government will mean in detail for the future. The NSTC position has never contemplated negotiation for a delegated form of Self Government. We will not negotiate this. Notwithstanding these positions, we have always maintained that questions about the source of our right to self government (ie derived from an inherent right vs. delegated); must be addressed through the appropriate i.e. constitutional forum. Clearly the Charlottetown Accord reflected the willingness of all governments to recognise our inherent right. With the rejection of the Charlottetown Accord, many governments and in particular the federal government, have done everything possible to move away from the positions they were prepared to accept in the earlier constitutional discussions. Notwithstanding this situation we would emphasise that in our current negotiations, we are seeking agreement with the federal government on the substance of what self government will mean for the future. This approach is reflected in each of the sub- AlPs signed and tabled to date. This approach should and must enable all parties to avoid negotiation on the source of our governmental authority. The Chiefs of the North Shore First Nations have not given the NSTC a mandate to discuss these issues in the current negotiations. These issues must await future constitutional discussions or court decisions if the political processes fail again. In the meantime we should not and cannot be forced to compromise our most fundamental political positions.

16 F^p-SUB.D3 15 October 15, 1993 Our current negotiations should establish a Framework of recognised govermental authorities for each of our First Nations in all areas of jurisdiction. The detailing of how the authorities which are being recognised will be exercised will take place over a period of several years, and will result in an ongoing government to government relationship and negotiations to accommodate the results of the North Shore First Nations actually exercising their governmental authorities in the years ahead. Progress to date - negotiations level In the months immediately following the signing of the Framework Agreement, the NSFNs and NSTC established the general structures and approach which will sustain discussions with the federal government on the substance of the NSFN Government Agenda. Detailed negotiations begun in 1991 on the substance of the NSFN Government Agenda have seen us sign off with the federal government on four sub-aips to date, in the following agenda areas: * Structures of Government * Legal Capacity * Citizenship/Membership * Procedures of Government We are presently negotiating with the federal government a fifth sub-alp tabled in February 1993 on Jurisdiction and Legislative Authorities. This agreement, which is the heart of our NSFN Government Agenda, is extremely comprehensive. The chart on the next page gives an indication of the comprehensive range of jurisdictions in which the North Shore First Nations seek recognised authority. In its essence, this agreement reflects our vision of what self government will mean for our communities for the future.

17 IS.OV NORTH SHORE FIRST NATIONS GOVERNMENT JURISDICTIONMEGISLATIVE AUTHORITY FRAMEWORK 1.0 THE PEOPLE/CITIZENS OF THE NORTH SHORE FIRST NATIONS 1.1 Citizenship 2.0 THE NATURAL ENVIRONMENT 2.1 Lands 2.2 Resources 2.3 The Environment 3.0 THE SOCIAL ENVIRONMENT 3.1 Education 3.2 Health Care 3.3 Child and Family Services 3.4 Social Development and Support Services 3.5 Recreation and Sporting Activities 4.0 THE CULTURAL AND SPIRITUAL ENVIRONMENT 4.1 Language 4.2 History/Traditions 4.3 Arts and Crafts 4.4 Spiritual/Religious Matters 5.0 THE ECONOMIC ENVIRONMENT 5.1 The Regulation of Trade and Commerce 5.2 Revenue Generation/Taxation 5.3 Human Resource and Employment development 5.4 Economic Structures and Institutions 5.5 Economic Planning and research 5.6 Private Property 6.0 THE PHYSICAL ENVIRONMENT 6.1 Transportation Infrastructure 6.2 Telecommunications 6.3 Public and Private works and Infrastructure 6.4 Community and Public Services 7.0 THE LEGAL/ADMINISTRATION OF JUSTICE ENVIRONMENT 7.1 Development of Laws and Regulations 7.2 Criminal Law Jurisdiction 7.3 Civil Jurisdiction 7.4 Administration of Criminal Justice 7.5 Administration of Civil Justice 7.6 Public Order and Safety 8.0 THE FIRST NATION GOVERNMENT ENVIRONMENT 8.1 Structures of Government 8.2 Procedures of Government 8.3 Government Administration 8.4 Intergovernmental Relations 8.5 Communications 8.6 Protection of Rights: Aboriginal and Treaty Collective Individual 8.7 Other Areas Relating to Peace, Order and Sound Government

18 -SUB.D3 17 September 9, 1993 A sixth sub-agreement, on Lands, Resources and the Environment, will likely be tabled with the federal government by the end of this summer. This agreement will detail the scope and extent of jurisdictions and authorities which we are seeking to have recognised in the agenda area of lands, resources and the environment. Community level discussions Intensive community level discussions in each area of the NSFN Government Agenda are proceeding in parallel with the discussions with the federal government. These are coordinated and managed by self government structures at the First Nation level, with support from Tribal Council Self Government and other staff. In each of the North Shore First Nations, the following structures have been established and mandated with the following roles and responsibilities: * Chief and Council continue to provide overall political direction to the initiative at the First Nation level, and one Councillor has been assigned responsibility for the Self Government portfolio * Community Self Government Coordinators have been hired in each community to coordinate community level consultations, to collect data and information required to support the discussions with the federal government, etc. * Community Self Government Committees have been established to provide advice and guidance to Chiefs and Councils and Community Coordinators, etc. The First Nations Government Commission staff at the Tribal Council level assist the Community Self Government Coordinators, Committees etc., in preparation of workplans, collection of required data, and development of discussion papers, overheads, etc. to support community level consideration of each self government agenda area. In each community, most or all of the following techniques and media have been and/or will be extensively used, to ensure that community inputs are drawn together and to expand the circle of dialogue as we proceed toward completion of an overall draft Agreement-in-Principle:

19 -SUB.D3 18 September 9, 1993 video newspaper (monthly articles, special editions) pamphlets community meetings and workshops retreats etc. The challenge of involving and sustaining the interest of community members, and ensuring broad understanding of the current self government work at the community level, remains the single biggest challenge to be confronted in the current phase of the NSFN Government initiative. That is because the adjustment in government to government relationships which will be contemplated by a final draft Agreement-in- Principle on NSFN Government must be approved by the membership of each of the North Shore First Nations voting in a referendum. No amount of technical work or political direction will mean anything without community level support for this initiative. The issue of how community level interest and support for an initiative such as North Shore's can be generated and sustained is one of the most important issues which the Royal Commission on Aboriginal Peoples must grapple with and develop responses/solutions. Provincial Participation In concluding the Framework Agreement the Chiefs of the North Shore First Nations and Tribal Council recognised that many of the agenda items identified (e.g. education, health care, land and resource management issues) would ultimately require a level of discussion with the Province of Ontario. We have sought to involve the Province of Ontario from the outset in our negotiations and in the preparatory work required to achieve a full understanding of how NSFN/NSTC objectives in relation to each NSFN Government Agenda items affects the province or its interests. We are now nearing completion of a comprehensive two-year database project which was designed to identify current provincial authorities in relation to each item on our NSFN Government Agenda, and to identify current federal and provincial fiscal flows to the NSFNs. We have sought the formal involvement of Ontario in our self government negotiations for over three years now. While the Province of Ontario has participated informally in our joint negotiation sessions with the federal government since the fall of 1992, this

20 -SUB.D3 19 September 9, 1993 is not going to be sufficient to allow us to work through the positions that have been developed by NSTC for negotiation with both governments. We are extremely disappointed in the time that Ontario is taking to deal with our request that they become formally involved. However we remain hopeful that formal Cabinet approval to fully integrate Ontario into our negotiations will be achieved in the near future. ISSUES FOR NEGOTIATION - CHALLENGES TO BE MET In our discussions with the federal government and informally with the government of Ontario, and flowing from the extensive and on-going community discussions, we are defining our vision of what self government will look like for the future. In our view, the main elements and challenges to be dealt with in the context of our current negotiations include: 1) Defining new government to government relationships at the First Nation/Tribal Council levels: In our discussions to date with the federal government, we have taken the position that the definition of the new government to government relationships must be focused at the First Nation level. It is up to First Nations to decide in what areas, to what extent and for how long they will delegate their government authorities, whether to a Tribal Council or some other level of government, whether Indian or non-indian. Each of the sub-aips which we have signed or tabled to date reflects these essential principles. Clearly, there are some aspects and sectors of government activity where it will make sense for the North Shore First Nations to work collectively through the North Shore Tribal Council to achieve common goals. As part of our current self government work, we are identifying both current and potential future authorities which are now or might be exercised by the NSTC. NSFN/NSTC constitutional documents will define how those authorities may be explicitly conferred on, or withdrawn from, the Tribal Council by the NSFNs.

21 -SUB.D3 20 September 9, ) Managing the transition to new government arrangements: There are many challenges which will have to be managed by governments and First Nations in the transition from the current Indian Act environment to new government to government arrangements. Those challenges include, by way of example: * coming into force of First Nation/Tribal Council laws/displacement of current federal/provincial laws - how this will be done * where disputes arise in relation to exercise of jurisdiction by any of the First Nation/Tribal Council, federal or provincial governments - how those may be resolved * new occupation of fields of jurisdiction by the federal or provincial governments, where First Nation/Tribal Council authority will have been recognised but not yet exercised - whether this will be permitted, and under what circumstances * new government to government financial arrangements - how those will be structured, how and when they may be reviewed and renewed etc. (the issue of financial arrangements is treated in greater detail, below) The NSFNs have begun the process of identifying options, in relation to each transition issue above. Generally, these reflect principles such as: * enhanced accountability to First Nation members * equal representation for First Nation and other governments in dispute resolution structures and other quasi-judicial or intergovernmental bodies * requirements for provincial and federal governments to notify First Nations governments of proposed occupation of jurisdictional fields where First Nations have recognised authority

22 '-SUB.D3 21 September 9, ) Intergovernmental relations with the federal and provincial governments: In our view, self governing First Nations must, as appropriate to their interests and recognised jurisdiction, have the ability to establish and maintain appropriate relationships, to enter into intergovernmental negotiations, agreements, treaties and other arrangements, and to enter into and participate in intergovernmental structures and organisations, with other Indian and non- Indian governments. Intergovernmental relations involving First Nations and federal or provincial governments must be conducted on a nation-to-nation basis reflecting mutual respect, equitable First Nation representation, and honouring by both parties of their commitments. 4) New government to government financial arrangements: In concluding our Framework Agreement with the federal government, we identified the need for a dramatically different approach to the assessment of needs and negotiation of financial arrangements to support NSFN government. In particular, we take the position that historical funding patterns and amounts alone cannot govern the negotiation of such new arrangements. We have identified a broad range of factors which we believe must be taken into account in the development of new approaches to the financing of Indian government. These include: a) the primary fiscal responsibility of the federal government for the financing of Indian government; b) the need for negotiation of appropriate levels of financial support from the provincial government; c) the need to examine radically different financial arrangements between the federal and provincial governments and the North Shore First Nations at both the First Nation and Tribal Government levels involving consideration of:

23 -SUB.D3 22 September 9, 1993 * needs * new revenue generation techniques including resource revenue sharing * new approaches to the structuring of financial arrangements * financial accountability of Indian governments to their membership and to the federal and provincial governments * issues related to taxation and other revenues * the implications of the current environment of fiscal restraint d) new financial arrangements must be flexible, acknowledge and reflect the primary responsibility of North Shore First Nation governments to their membership, be stable in their term and amount allowing for long term planning, and reflect in their amount the increased costs of administration and program and service delivery that will flow from the full recognition of North Shore First Nations government and the greater responsibilities that this will entail. e) the broad objective to be reflected in overall arrangements including financial arrangements, is to move increasingly towards economic selfsufficiency and a lessening in the level of dependence on resources provided by other governments. Finally, the NSFNs identified the need to review all aspects in respect of the future management, control and disbursements of NSFN monies - trust or otherwise, however such monies are generated and however they may be controlled and managed under the current legal regime. In our view, the foundation of future fiscal relationships critically has to be derived from a needs based approach. We are at this stage finalising the methodology and expect to begin this fall to gather the data for a comprehensive current as well as future needs-based costing of First Nations government arrangements. The results of the two-pronged costing exercise, which is currently being strongly opposed by the federal government, will guide us in our discussions with the federal, and eventually, provincial government of new government to government financial arrangements.

24 -SUB.D3 23 September 9, ) Focus on NSFN members who do not reside on NSFN lands: The NSFNs take the position that our right to Self Government attaches to First Nation membership both on as well as off reserve and other First Nation lands. In our discussions to date with the federal government, we have attempted to clearly define how we see First Nation government authority being exercised over our citizens not resident on First Nation lands. That vision has the following elements: a) Fundamentally, we support and are prepared to affirm the principle that non-resident First Nation citizens should have the right to choose whether to access their rights, entitlements and benefits as well as related programs and services through the First Nation of which they are a citizen, or in some other way. b) At the same time, we recognise that there will be practical limits on a First Nation's ability to exercise authority in relation to its non-resident citizens, especially with respect to its ability to delivery programs and services and other assure rights, benefits and entitlements to its nonresident citizens. Where such limits might exist, we would propose that these limits and their related implications would be clearly delineated by a First Nation. c) Irrespective of whether a First Nation defines limits in relation to the extent to which its jurisdiction or authorities shall extend to encompass non-resident citizens, the continuing base rights, entitlements and privileges as well as obligations and responsibilities that will attach to ajl First Nation citizens whether they reside on or off First Nation lands shall be spelled out in a First Nation constitution or other appropriate document. We seek acknowledgement from the federal and provincial governments that the government of our communities must encompass a capacity to include nonresident citizens in the daily fabric and undertakings of our community. Further, we seek an assurance from both governments that they have a willingness to share equitably in the financial burdens which will inevitably be associated therewith.

25 -SUB.D3 24 September 9, ) Respecting community priorities, reflecting community needs: It is clear that First Nations must have the ability to decide when to exercise their recognised authorities, according to individual community priorities, and in a manner which meets the needs of the community and its citizens. This principle is reflected in each one of the sub-aips which we have signed or tabled to date. In particular, new government to government financial arrangements must be sufficiently flexible and long-term to allow for planning and undertaking of a phased approach to the exercise of recognised First Nation authorities. 7) North Shore First Nations' role in relation to their traditional/treaty territories: We will be proposing to commit ourselves, with the federal and provincial governments, to a further process with the end objective of reaching a clear definition of the NSFNs' authority in relation to their traditional and (Robinson- Huron) Treaty territories as these extend beyond current First Nation (i.e. reserve) lands. In all likelihood, the nature of the authorities we will seek for the NSFNs will be based on principles of co-management and shared jurisdictions and benefits in relation to traditional/treaty lands and the resources on, in or under those lands. Having identified a number of the major challenges which we see as needing to be met in the context of self government negotiations, and the options which we have put forward for responding to those challenges, we will now make some comments about the current federal and provincial policy environments. In particular, we will focus upon areas of concern where we believe there is room for considerable improvement in how the challenges we have identified are now being met.

26 V SUB.D3 25 September 9, 1993 FEDERAL POLICY - SOME CONCERNS In general, without wishing to appear too cynical in our assessment of the current environment, we sometimes have a strong sense that, in terms of both process and results achieved, the federal government and in particular DIAND neither understands what self government really means, nor has the political and bureaucratic will to deal with the essence of self government in the current policy environment. The federal view of its current discussions with First Nations seems to amount to little more than a continuation of past devolution policies with marginally more flexible ability to manage current financial resources and an associated limitation/reduction of current federal financial and legal responsibilities. THIS IS NOT SELF GOVERNMENT, AS WE DEFINE IT. With respect to our current self government discussions with the federal government under their Community Based Self Government Policy, we have a number of major comments and concerns in relation to: the negotiations process 0 resourcing of participation the negotiations timeframe key substantive issues including; new financial arrangements and dealing with the federal governments continued insistence on retaining the power to determine who is a Status Indian The Negotiations Process In our experience, federal negotiators lack a clear mandate, do not have or have not received proper training as negotiators, and lack the required policy and related support capacities necessary to sustain their participation in discussions for the recognition of North Shore First Nations government. Without directing the criticism at the negotiators themselves, the end results of these short-comings range from misunderstandings, and lack of confidence and creativity in federal responses to positions we have taken, to a high level of dependency on often inexperienced legal advisors who often do not appear to understand the political dimension to the current NSFN Government negotiations.

27 -SUB.D3 26 September 9, 1993 This situation has been rendered even more acute as a consequence of departmental reorganisation which saw a lessening of DIAND - Headquarter's role and a resulting enhancement of the role of DIAND Regional Offices in the community-based self government negotiations. However well intentioned they may be, regional staff lack the support capacity and do not ultimately have the necessary authority to negotiate new government arrangements with First Nations. An exacerbating factor is the dominant roles increasingly being assumed by central agencies (especially Justice, as well as Finance and Treasury Board) as the discussions proceed. We confront a situation in many instances where inexperienced lawyers are being assigned to the North Shore file, are making policy determinations in the guise of legal interpretations, and are engaging in endless protracted discussions of minutiae. This is coupled with, and compounded by, a serious lack of required senior level overview and scrutiny of positions being adopted. It is impossible to negotiate and to deal with the fears and apprehensions of often relatively inexperienced federal officials, who in many instances have never even been to Indian communities, who possess no clear mandate, who have no real authority, who are lacking in experienced policy and legal support staff and who are unwilling in many instances to even be at the negotiating table where their views can be understood and questioned. In short, the internal federal process is characterised by back room decision-making, where there is no accountability to anyone, and a close to complete lack of any creativity. The challenges of communicating effectively within our own communities are made even more difficult by having to continually battle the federal party to the negotiations on account of the difficulties identified in this part of our submission. Resourcing of First Nation/Tribal Council participation The federal government had initially unilaterally imposed a $1.5 million maximum treasury board authority for support of a Tribal Council's participation in negotiations under the policy. This amount is grossly inadequate, if community members are to be centrally involved in defining their vision for the future. In delayed recognition of this reality, the federal government has approved limited extensions in resourcing on a case by case basis.

28 -SUB.D3 27 September 9, 1993 Our work to date has seen considerable emphasis on ensuring full involvement and information of community members at each stage of the discussions. Without that involvement, this initiative cannot succeed. The federal government has also insisted upon community participation. However this federal insistence on community participation is juxtaposed, against an unwillingness or inability to recognise the investment in time and resourcing required to properly ensure community members' involvement. Federal insistence on this requirement pays little more than lip service to the reality that our communities must and will drive our movement towards self government. As with other elements of the process, the situation sees one of the parties to the negotiations viewing itself as having the exclusive authority to set the parameters on negotiations, and constantly attempting to impose its unilateral decisions, even where such decisions are clearly contradictory on their face. Negotiation Timeframes The federal government's initial policy set a two-year time limit on negotiations under the current CBSG policy. A case by case review has seen this time frame now extended, in the case of NSTC, for a third year, accompanied by the directive that and agreement must be reached within that period. Once again, the initial timeframe was self-evidently completely inadequate for an initiative involving a Tribal Council representing seven First Nations, as is the case with North Shore. Without community members' continuing involvement through all stages of this process this initiative will not succeed. In our view, the two-three year timeframe and the federal government's professed insistence on community involvement are inconsistent and incompatible objectives. The federal government has in the past approved extensions of the time period for negotiations on a case by case basis. More recently, however, the federal government has (once again) unilaterally imposed a deadline of March 1994 for all negotiations under the current Community Based Self Government policy, regardless of progress being achieved. Self evidently, this has placed us under extreme pressure to complete our negotiations by the end of the current fiscal year. This decision reflects a lack of acknowledgement

29 -SUB.D3 28 September 9, 1993 of the investment in time and resources which we have made, and indeed which the federal government has had to make, to deal effectively with the many complex issues which we need to examine through our current discussions. And, in unilaterally dictating timeframes as well as resourcing levels, the federal government continues to undermine the professed nature of this process, as a negotiation between equal parties. Substantive issues We would underline concerns in relation to two substantive issues: a debate about the source of our right of self government, and new government to government financial arrangements. 1) Source of the right: the federal government has said since the failure of the Charlottetown Accord that the inherent right is "off the table". The NSFNs took the position that the Charlottetown Agreement went a considerable distance in the right direction in relation to recognition of our inherent right to govern ourselves. In our view, the discussions for detailing of the right which would have followed after constitutional entrenchment, as they were proposed mirror the kind of discussions in which we are now engaged with the federal government. Though the Charlottetown Agreement did not pass in the October 1992 referendum, the challenge to the federal and indeed provincial governments of recognising Aboriginal governments still remains. The Agreement, including the process described for detailing of the right, was unanimously supported by its drafters. The kind of discussions now under way involving the North Shore First Nations/Tribal Council and the federal government are precisely what would have been required had the Charlottetown Agreement passed. Once again, we are seeking agreement on the substance of the authorities to be recognised, rather than on the source of the right of self government. We do not wish to enter into a debate with the federal government in the context of our current negotiations on the latter issue. The progress which we have achieved must not be allowed to be lost.

30 -SUB.D3 29 September 9, ) New government to government financial arrangements: Our objectives and the factors which we have identified for discussion of this NSFN Government agenda area with the federal, and eventually, provincial government are set out in the preceding pages. Our primary concerns in relation to this substantive area for negotiation are as follows: a) in the current environment, there is almost no creativity being demonstrated by the federal government, either in terms of process/approach or substantive policy, in relation to the discussion of new financial arrangements to support NSFN Government b) as we mentioned in the preceding pages, the federal government is currently strongly opposing our proposed costing methodology which would include future needs-based costing, because it merely wishes to transfer current inadequate fiscal allocations c) there does not appear to be any recognition that an investment in the capacity of First Nations to define and meet their own needs will ultimately result in a lessening of the dependence on government resourcing d) the last ten to fifteen years have seen a federal agenda dominated by devolution of programs and associated responsibilities, downsizing and containment of legal and financial exposure. Whatever benefits in savings which the federal government has realised have not, however, been reinvested in developing the human capacity at FN/TC levels. In relative terms, actual capacity to develop and deliver programs has deteriorated. e) finally, a key element of a new fiscal relationship between First Nations and the federal and provincial governments has to involve a reassessment and realignment of federal/provincial fiscal responsibilities. However, neither the federal nor provincial governments now appears willing to deal with these questions. The current federal approach which reflects little more than a slightly enhanced

31 -SUB.D3 30 September 9, 1993 devolution of current resources, will not allow for the support of First Nation governments. Perhaps most importantly it will continue to deprive Indian communities of the tools that they need to ultimately lessen their dependence on other levels of government in the longer term. PROVINCIAL POLICY - SOME CONCERNS In August 1991 the Government of Ontario signed a Statement of Political Relationship with the First Nations of Ontario, reflecting the government's support for achieving recognition of the specifics of an inherent right to Self Government through negotiations. The North Shore First Nations saw that commitment as a window of opportunity to negotiate the specifics of our right to Self Government. The Statement of Political Relationship is encouraging, but largely remains to be implemented. We are extremely disappointed, for example, that after three or more years of trying we still do not have the Province of Ontario formally at the negotiation table. We are pleased that Ontario has decided to participate informally in our current discussions with the federal government, and to familiarise itself with the approach and positions which we are taking in those discussions. We are hopeful of early Cabinet approval for Ontario's formal participation in those discussions. These would be positive steps toward implementation of the Statement's commitments. We would highlight some further concerns about the current provincial environment and policies, particularly as this relates to attempted linkages with claims issues. We reject fundamentally any attempt to link such issues to Ontario's participation in our self government discussions, and any suggestion that we delay resolution of other historic claims until the self government discussions have been concluded. Provincial governments must make the investment and do what they commit themselves to politically. Once again, we would emphasise that the kind of discussions now under way involving the North Shore First Nations/Tribal Council and the federal government are precisely what would have been required had the Charlottetown Agreement passed, and are in any case exactly what is required in light of the Statement of Political Relationship.

32 -SUB.D3 31 September 9, 1993 SOME COMMENTS ABOUT THE PROGRESS AND MANDATE OF THE ROYAL COMMISSION The NSFNs welcomed the establishment of the Royal Commission on Aboriginal Peoples by the federal government in The Royal Commission's mandate - to examine the economic, social and cultural situation of the Aboriginal peoples in Canada - is clearly an important and urgent one. We would like to make a few observations in relation to the following: 1) Our dealings with the Royal Commission: As noted above, in July 1992 we submitted our proposal to the Royal Commission on Aboriginal Peoples Intervenor Participation Program, seeking support for the development of a submission to the Commission by the North Shore First Nations. We promised a high-quality, detailed submission focused on possible solutions and strategies for dealing with the many complex issues which the Commission is mandated to study. As one of only three Tribal Councils in the country currently involved in discussions with the federal government (and now informally, with the provincial government as well) for the recognition of community-based self government, we felt ourselves uniquely situated to offer insights based on our experience and knowledge which in turn might prove valuable to the Commission in its work. In response to our request, the Royal Commission made available approximately 20% of our original request, or $15,000. In real terms, what this has meant is: * realistically, we have only been able to provide the Commission with a snap-shot, so to speak, of our impressions in relation to each of the issues discussed in this Submission, and * the Royal Commission has missed an opportunity to draw out the technology which we have been developing, in relation to the "how you do it" questions of self government, at the levels of both process and substance.

33 -SUB.D3 32 September 9, ) Emphasis on academic research versus problem solving: In our view, the balance of the Royal Commission's research program is tipped too heavily toward academic research and too little towards working on the practical issues that will generate problem solving solutions. Based on our understanding on how the $8 million research budget has been allocated, we have real fears that the results will be too often a rehashing of already existing reports by researchers without practical "on the ground" experience. In short, our concern is that the process will be a very expensive and time-consuming one with few tangible results. 3) What we think the Royal Commission should be doing: In our view, the Royal Commission would be far better served by sitting down with groups such as North Shore, to look at such matters as: a) what has and has not worked in terms of process b) how their agreements have been structured and why c) understanding the challenge of achieving community support d) understanding the problems which must be confronted in relation to future fiscal relationships e) understanding future issues involved in interfacing First Nation, federal, provincial and municipal level governments. Such an approach would we think be much more likely to produce solutionoriented discussion and results than the current emphasis on academic research, no matter how worthy individual academic projects may seem. 4) What we see as the basic elements of a long term resolution of the issues which gave rise to this Commission: As will be clear from the preceding pages, it is the view of the North Shore First Nations and Tribal Council that the following are essential requisites to the

34 -SUB.D3 33 September 9, 1993 long-term resolution of the concerns and issues which the Royal Commission has been mandated to study: recognition by the federal and provincial governments of our inherent right to Self Government detailing of the jurisdiction and powers of First Nations, as well as federal and provincial governments, on a nation-to-nation basis reflection and protection of this right to govern ourselves within a revised Canadian Constitution negotiation of new government to government fiscal relationships, which will assure each First Nation the ability to meet the needs of their membership and sustain the development and operation of their government structures, programs and services and the clear respecting of the rights assured to us under the Robinson- Huron Treaty of ) What we believe the Royal Commission must address itself to as a matter of priority: In its final report to the Government of Canada if not before, the Royal Commission must in our view offer real solutions to resolve the following issues in the context of recognition of First Nations government: how First Nations will be resourced in the future, whether through fiscal transfers, access to lands and resources, etc. future realignment of federal/provincial fiscal responsibilities how disputes which may arise when a First Nation exercises its jurisdiction will be resolved how community involvement and understanding can be achieved (i.e. the "how to do it" questions)

35 -SUB.D3 34 September 9, 1993 how governments structure their negotiations capacities for dealing with these issues in the future the related issue of whether DIAND will ever have the credibility and resources to do what this requires - or whether some new capacity is required within the federal government system CONCLUDING REMARKS Once again, we would like to thank the Royal Commission for making funds available to the North Shore First Nations to support the preparation of this submission. We have shared in this submission our suggestions and proposals to meet the many challenges which confront Indian and non-indian governments in Canada today. This Commission cannot and must not be seen to take the place of the kind of negotiations which are now required and under way to detail the North Shore First Nations' right of self government. Recognition of First Nations government must proceed on a nation to nation basis, not through a Royal Commission or any other body. It is our sincere hope that the knowledge and experience which we have shared with the Commission in this submission will be of assistance to the Commission and its staff as it moves toward the completion of its mandate. We look forward to the final report of the Royal Commission in hope that the Commission will offer creative and practical solutions which will see a new relationship among First Nations and the broader Canadian society based on continued coexistence, the continued survival and flourishing of our Ojibway culture, mutual respect, and sharing both of the benefits and bounty of this land, as well as the responsibility for caring for it.