The executive branch of government includes the executive council and government departments or ministries. The executive council is comprised federally of the Prime Minister and Ministers; provincially and territorially of the Premier and Ministers. There is a Minister responsible for each of the government departments or ministries.
Each department of ministry has a deputy minister appointed by the elected government to overseeon behalf of the elected government. Below deputy ministers is a non-elected bureaucracy starting with assistant (or associate) deputy ministers and heading down through directors, assistant directors, managers, assistant managers and so on. Each department or ministry can be broken down into a number of branches for organizational purposes. The federal government in Canada has over 260,000 employees.
Tools used by the executive branch of government to advance colonization and assimilation include:
1. Crown-Delegated Jurisdiction;
2. Agreements; and
3. Policy.
The Government of Canada delegates authority to organizations to empower them to function as part of Canada’s infrastructure (Crown corporations, health and education authorities and etc.). When the Crown delegates authority, with it comes a jurisdiction over which the authority extends.
Crown-Delegated Jurisdictions with authority over Indigenous lands, resources, or peoples are created through section 91(24) of the Constitution Act. To receive Crown-delegated authority, changes are mandated by the Crown within the Indigenous organization replacing laws, policies, and practices previously used by the organization under the authority of Indigenous sovereignty.1 The new Crown-Delegated Jurisdiction in the Indigenous organization replaces its Indigenous Jurisdiction counterpart to effectively assimilate the sovereign Indigenous version of the organization. Examples of Crown-Delegated Jurisdictions include:
1. Band council governance under the Indian Act;
2. Self-government under section 35; and,
3. Indigenous partners.
Crown-Delegated Jurisdictions are created through a combination of legislation, bilateral agreements, and funding contributions with organizations, service delivery institutions, and Indigenous communities; and,
Crown-Delegated Jurisdictions have a competitive advantage over Indigenous Inherent Jurisdictions because they receive funding and legislative support, access to training, and bureaucratic support that Indigenous Inherent Jurisdictions do not receive and have no revenue base to create.
All agreements between the Crown and Indigenous peoples are a type of bilateral agreement. Bilateral agreements can be permanent or expire after a certain amount of time. In general, bilateral agreements create Crown-Delegated Jurisdictions that replace Indigenous Jurisdictions. They are used for assimilation.
Treaties originate under international law and cannot be directly used to create a Crown-delegated jurisdiction. However, treaties in Canada are recognized in section 35 of the Constitution Act turning them into a domestic agreement, a Crown-granted right and a Crown-Delegated Jurisdiction (Treaty Partners).
Treaties are a permanent bilateral agreement. Treaties, modern treaties, and land claims are different names for the same instrument used by the Crown to garner the surrender of Aboriginal title for Indigenous lands.
- Aboriginal title to land is the restricted title to rights of occupation and land use that is left to Indigenous Peoples after the Doctrine of Discovery striped away their sovereignty, Immemorial rights, Indigenous law, and Indigenous Jurisdiction.
Treaties create Treaty rights that are recognized and affirmed under section 35 and protected under section 25 of the Constitution Act. However, Section 35 recognizes only the pencilled-in Treaty rights within the document:
- Section 35 does not recognize, and therefore the treaty or land claim extinguishes, pre-existing Immemorial rights and sovereignty to land and resources;
- Treaties under section 35 are domestic agreements that are not recognized internationally as nation-to-nation agreements; and,
- Treaty rights can be unilaterally removed from the Constitution Act by the federal government.
2. Self-government Agreements:
Self-government agreements are bilateral agreements that expire, needing renewal. Self-government is an Aboriginal right under section 35 which when empowered by a bilateral agreement becomes a Crown-delegated Jurisdiction replacing self-determination’s Inherent Jurisdiction of government. The authority of these Indigenous governments is far less-than it would be under Indigenous sovereignty.
Self-government agreements include funding contributions and legislation to bring them into force. These agreements are made under Canadian law:
- They exclude Indigenous law and infringe on Immemorial rights.
- These agreements, and the governments they create, are subject to the Crown’s rule of law.
3. Indigenous Partnership Agreements:
Indigenous partnership agreements are bilateral agreements that expire, needing renewal. Indigenous partners are organizations given Crown-Delegated Jurisdiction that replace organizations governed by the jurisdiction of Indigenous rights-holders and their Immemorial rights.
Indigenous partnerships are created with a combination of bilateral agreements, funding contributions, and legislation (where applicable). Examples of Indigenous partners include:
- Treaty Partners;
- National Partners; and,
- Institution Partners.
Crown engagements with Indigenous partners are used to consult Aboriginal rights and create policy affecting Indigenous Peoples. These engagements bypass the consultation of sovereign community-based Immemorial rights-holders, affect community services, influence legislation, engage Treaty rights, and affect Aboriginal rights.
Sectoral agreements are bilateral agreements that can be permanent or expire needing renewal. They are used in place of treaties and comprehensive land claim agreements to create agreements over particular issues (hunting, fishing, logging, and etc.) or resources (mines, pipelines, and etc.).
These agreements are made under, and enforced by, the Canadian rule of law which excludes Indigenous law and infringes on Immemorial rights. These agreements promote Crown objectives and rights while replacing Immemorial rights with Aboriginal rights.
The responsibility of creating policy and making policy decisions rests with elected Ministers:2
Policies reflect objectives of the elected government, but must align with a bureaucracy that is bridled with upholding Crown rights and objectives – which in turn are entrenched in assumed sovereignty and the rule of law. These policies are expressed in:
1. Mandates; and,
2. Operational Practices.
Federal and provincial Ministerial mandates promote operational practices which in turn dictate the programming and funding that advances government objectives. However, all this needs to remain grounded in Crown rights and jurisdiction. In general, ministerial mandates exclude Indigenous objectives grounded in Immemorial rights and Inherent Jurisdiction.
Senior government bureaucrats can deny Indigenous projects support citing the department or ministry has, ‘No mandate’. A policy of ‘no mandate’ is discriminatory3 and can violate the rule of law.4
Most Indigenous proposals that are denied by federal, provincial and territorial governments or their agencies are focused at closing gaps in service delivery, healing programs, or resolving poor socio-economics (poverty). The fact a gap already exists indicates that services and programs are provided to non-Indigenous Peoples in Canada but not to Indigenous Peoples.5 Claiming ‘no mandate’ to close these gaps, by definition, is a reflection of the continued colonial objectives that created these gaps in the first place.
In general, the Crown denies funding to projects that promote sovereign Indigenous Jurisdictions and Immemorial rights while providing funding to Crown-Delegated Jurisdictions that promote Crown rights or Indigenous-related Fiduciary, Treaty, or Aboriginal rights.
Funding models are developed that fund non-Indigenous jurisdiction-based projects, programs, and service delivery organizations but exclude funding for projects, programs, and service delivery organizations that promote Immemorial rights and Indigenous Jurisdiction.6
The Crown uses its rights and objectives, its values, to define and evaluate needed programming and programming levels for Indigenous Peoples and their communities7 without consulting sovereign Indigenous communities and rights-holders.
Instead, the Crown consults Indigenous partners on programming needs. In doing so, the Crown recognizes Crown-Delegated-Jurisdictions while excluding the Inherent Jurisdiction of community-based rights-holders and their Immemorial rights.
1. (2003) McNeil, Kent. "Challenging Legislative Infringements of the Inherent Aboriginal Right of Self-Government." Windsor Yearbook of Access to Justice 22: 329-361. https://caid.ca/ChaLegInfInhAbo2003.pdf
2. (2006) Commission of Inquiry into the Sponsorship Program and Advertising Activities: Phase 2 Restoring Accountability – Recommendations (Gomery Commission). Publishing and Depository Services, Public Works and Government Services. Ottawa, Ontario, K1A 0S5. p. 115. https://caid.ca/GomRepVol22006.pdf
“The responsibilities and duties of the public service do not lie in making policy decisions, nor in formulating decisions on the broad approach of government to its management of the public sector. Both of these areas are, and should be, the responsibility of elected Ministers. Public servants such as Deputy Ministers may offer advice to Ministers in these areas, but they do not make the decisions, nor do they bear the responsibility. Responsibility and power in these areas belong to Ministers, and their accountability for their use of their powers is political, on the floor of the House of Commons and, ultimately, to the people of Canada in general elections.” [Emphasis Added]
3. First Nations Child and Family Caring Society of Canada & Assembly of First Nations v. Attorney General of Canada. [2016] CHRT 2, at para 400. https://caid.ca/CHRT22016.pdf
“As articulated in Vriend v. Alberta, [1998] 1 SCR 493 at para. 69, “[i]t is easy to say that everyone who is just like “us” is entitled to equality [...] it is more difficult to say that those who are “different” from us in some way should have the same equality rights that we enjoy”. In other words, true equality and the accommodation of differences, what is termed ‘substantive equality’, will frequently require the making of distinctions (see Andrews at pp. 168-169). That is, in some cases “discrimination can accrue from a failure to take positive steps to ensure that disadvantaged groups benefit equally from services offered to the general public” (see Eldridge at para. 78).” [Emphasis Added]
4. Kelso v. The Queen, [1981] 1 SCR 199 at page 207. https://caid.ca/KelDec1981.pdf
“No one is challenging the general right of the Government to allocate resources and manpower as it sees fit. But this right is not unlimited. It must be exercised according to law. The government’s right to allocate resources cannot override a statute such as the Canadian Human Rights Act.” [Emphasis Added]
5. Personal note:
In 2016, we approached Health Canada, First Nation and Inuit Health Branch (FNIHB), for funding to create a First Nation-directed remote First Nation medical residency training stream. (The first of its kind.) We were told FNIHB did not have a mandate to fund medical residency training or physician services for First Nations. However, (1) Health Canada did provide medical residency funding for a non-Indigenous-directed medical residency training program; and, (2) FNIHB had not devolved the mandate to provide health care for First Nations given to it under section 91(24) of the Constitution Act. Saying there was no mandate to fund medical residencies for First Nations was akin to saying Health Canada would only fund non-Indigenous-related residency training.
6. (2009) Herbert, R. G., Meaningful Consultation in Canada: The Alternative to Forced Aboriginal Assimilation, 1. Introduction, 1.2 Need for a New Legal Basis in the Relationship, e. Selective Funding. p.8-9. https://caid.ca/MeaCon092409.pdf
“The Hawthorn Report paved the way for a new era in forced Aboriginal assimilation in Canada. Provincial and federal governments now provide funding to Aboriginal Peoples only if their request falls within government funding models. Funding models invariably provide funds for non-Aboriginal solutions to Aboriginal problems; problems that arose from the policy of forced assimilation. All funding for culture-based Aboriginal solutions to Aboriginal problems is denied because these solutions fall outside government program funding models. Canada is currently forcing the assimilation of Aboriginal Peoples by selectively funding only non-Aboriginal solutions for education, economic development, government, social welfare and more.” [Emphasis Added]
7. (1996) Report of the Royal Commission on Aboriginal Peoples. Volume 1: Looking Forward Looking Back. Part Two: False Assumptions and a Failed Relationship. Chapter 8, 1. False Assumptions. Canada Communication Group — Publishing, Ottawa, Ontario K1A 0S9. https://caid.ca/RRCAP1.8.pdf
“Four false assumptions are starkly revealed by the policies examined in this part:
1. The first held Aboriginal people to be inherently inferior and incapable of governing themselves.
2. The second was that treaties and other agreements were, by and large, not covenants of trust and obligation but devices of statecraft, less expensive and more acceptable than armed conflict. Treaties were seen as a form of bureaucratic memorandum of understanding, to be acknowledged formally but ignored frequently. All four areas of policy or action ran roughshod over treaty obligations.
3. The third false assumption was that wardship was appropriate for Aboriginal peoples, so that actions deemed to be for their benefit could be taken without their consent or their involvement in design or implementation.
4. The fourth was that concepts of development, whether for the individual or the community, could be defined by non-Aboriginal values alone. This assumption held whether progress was seen as Aboriginal people being civilized and assimilated or, in later times, as resource development and environmental exploitation.
The fact that many of these notions are no longer formally acknowledged does not lessen their contemporary influence. As we will see, they still significantly underpin the institutions that drive and constrain the federal Aboriginal policy process.” [Emphasis Added]
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