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Infrastructure Gaps in Indigenous Communities

Origin of Service Gaps:

One result of colonizing policies is that infrastructure services and their programs were not extended to Indigenous communities unless doing so served a Crown purpose.In general, Indigenous Peoples were constrained to accessing services and programs, when permitted, in non-Indigenous communities. The more north or isolated a community was, the less services and programs Indigenous people in those communities had access to.

Indigenous communities continue to be disadvantaged with services and programs because of policies created by government officials in Canada that think in terms of their own [the Crown’s] measures of success.2 These centralized colonial solutions save the expense of in-community infrastructure3 while promoting the enfranchisement4,5 of Indigenous Peoples [the removal of all legal distinctions from Indigenous people] by forcing migration from second class conditions within Indigenous communities to non-Indigenous urban centres.

“At Confederation two paths were laid out: one for non-Aboriginal Canadians of full participation in the affairs of their communities, province and nation; and one for the people of the First Nations, separated from provincial and national life, and henceforth to exist in communities where their traditional governments were ignored, undermined and suppressed, and whose colonization was as profound as it would prove to be immutable over the ensuing decades.”6

As a result, current gaps7,8,9,10,11,12,13 in health care, education, housing, nutrition, policing, safe drinking water, economies, justice, and etc. are reflections of infrastructure service and program levels available to, or not available to, Indigenous Peoples. Colonial ideas of solutions must no longer be imposed on Indigenous Peoples at the expense of their communities and culture. Indigenous communities know what they need for their communities to heal, be healthy, and to be affluent. The antithesis of that is assimilation.

Education Example:

An example of the policy to withhold, or provide inadequate, community infrastructure while promoting enfranchisement can be seen in a report from the Auditor General of Canada on the federal governments efforts to close a socioeconomic gap with the provision of education to First Nations.14 INAC, and now the Department of Indigenous Services Canada (ISC), provides education services to on-reserve First Nations communities. First Nations people living outside a reserve community are integrated into non-Indigenous provincial or territorial education systems. The Auditor General’s review of ISC’s handling of education data revealed a number of alarming details supporting the ‘two path’ conclusion mentioned above from the Report of the Royal Commission on Aboriginal Peoples. These include:

  • Mischaracterizing results;
  • Failing to report the gap in education between on-reserve First Nations people and other Canadians was growing wider;
  • Under-reporting on-reserve First Nations high school student drop out rates by 10 to 29 percentage points; and,
  • Failing to use the data already in ISC’s possession to improve education programs for on-reserve First Nations people.

Resolving Gaps:

Resolving Indigenous issues in Canada is big business. Governments in Canada tend to throw money at Indigenous issues in attempts to make the problem go away. Most of those funds never reach Indigenous communities. They are expended by government departments, governance organizations, partners, stakeholders, service providers, and others that feed off the government’s Indigenous trough. Funds are also directed away from Indigenous communities because communities lack the infrastructure and human resource capacity to translate funding into action – an adverse dividend from the Framework of Colonization.

The Government of Canada intermittently places large sums of money into a system in which Indigenous communities still do not have the infrastructure to receive funding and put it into action. The final resting place for the vast majority of those funds is always the same – somewhere outside of Indigenous communities. The result of new spending invariable is that land and community-based Indigenous people remain in poverty with marginally better standards of living. And, it will remain that way unless the relationship between Indigenous Peoples and the Crown changes.

Indigenous Peoples in Canada desire a nation-to-nation partnership with the Government of Canada that is grounded in self-determination. If the federal government officials choose to have a different outcome for their investment, they will need to change their relationship with Indigenous Peoples from one of colonization to one of self-determination, shared decision making and shared resources. That new partnership would need to include establishing culture-based in-community infrastructure built within Indigenous Inherent Jurisdictions that are founded upon Immemorial rights and Indigenous sovereignty.15

Financing Infrastructure:

The long-term solution to finance closing infrastructure gaps is not a better funding formula for Indigenous communities. It is a new fiscal relationship with rights holders.

The current fiscal relationship fails because the Crown and its corporate citizens take almost all revenue from the land and its resources. The Crown then grants funding (not shared revenue) to Indigenous Peoples. Earmarked funding coupled with accountability measures maintains Crown control of Indigenous Peoples. This is not a financial relationship conducive to self-determination and building needed infrastructure under Indigenous jurisdiction.

A new fiscal relationship needs to change the colonial relationship and share revenue. Indigenous Peoples have an internationally recognized right to permanent sovereignty over land and resources.16 Recognition of that sovereign right would allow resource-based revenue streams to fund Indigenous communities, infrastructure building and self-determination.

1. (1996) Report of the Royal Commission on Aboriginal Peoples. Volume 1: Looking Forward, Looking Back. Part One: The Relationship in Historical Perspective. Chapter 6, Stage Three: Displacement and Assimilation; 8. Extending Measures of Control and Assimilation. Canada Communication Group — Publishing, Ottawa, Ontario K1A 0S9.

“… the federal government took for itself the power to mould, unilaterally, every aspect of life on reserves and to create whatever infrastructure it deemed necessary to achieve the desired end – assimilation through enfranchisement and, as a consequence, the eventual disappearance of Indians as distinct peoples.”

2. (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.

“… 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.”

3. (1966) Hawthorn, H. B. (Chair) A Survey of the Contemporary Indians of Canada: A Report on Economic, Political, Educational Needs and Policies. Ottawa, Supply and Services. lAND Publication No. QS-0603-020-EE-A-18.

Volume 1, Recommendation 22: “Community development should be viewed as playing a distinctly secondary role for most Northern and isolated, small communities in relation to the more pressing needs for greater capital and technical aid and special training facilities.”

4. (1857) The Gradual Civilization Act, preamble.

“WHEREAS it is desirable to encourage the progress of Civilization among the Indian Tribes in this Province, and the gradual removal of all legal distinctions between them and Her Majesty's other Canadian Subjects, and to facilitate the acquisition of property and of the rights accompanying it, by such Individual Members of the said Tribes as shall be found to desire such encouragement and to have deserved it: Therefore, Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows:”

5. (1869) The Gradual Enfranchisement Act, section 16.

 “16. Every such Indian shall, before the issue of the letters patent mentioned in the thirteenth section of this Act, declare to the Superintendent General of Indian Affairs, the name and surname by which he wishes to be enfranchised and thereafter known, and on his receiving such letters patent, in such name and surname, he shall be held to be also enfranchised, and he shall thereafter be known by such name and surname, and his wife and minor unmarried children, shall be held to be enfranchised ; and from the date of such letters patent, the provisions of any Act or law making any distinction between the legal rights and liabilities of Indians and those of Her Majesty's other subjects shall cease to apply to any Indian, his wife or minor children as aforesaid, so declared to be enfranchised, who shall no longer be deemed Indians within the meaning of the laws relating to Indians, except in so far as their right to participate in the annuities and interest money and rents, of the tribe, band, or body of Indians to which they belonged is concerned ; except that the twelfth, thirteenth, and fourteenth sections of the Act thirty-first Victoria, chapter forty-two, and the eleventh section of this Act, shall apply to such Indian, his wife and children.”

6. (1996) Report of the Royal Commission on Aboriginal Peoples. Volume 1: Looking Forward, Looking Back. Part One: The Relationship in Historical Perspective. Chapter 6, Stage Three: Displacement and Assimilation; 8. Extending Measures of Control and Assimilation. Canada Communication Group — Publishing, Ottawa, Ontario K1A 0S9.

7. (2015) Canadian Residential Schools: The Legacy, The Final Report of the Truth and Reconciliation Commission of Canada, Volume 5.

8. (2018) Reconciling Promises and Reality: Clean Drinking Water for First Nations, David Suzuki Foundation. ISBN: 978-1-988424-13-2

9. (2016) 2014-2015 Evaluation of the First Nations Policing Program: Final Report, Public Safety Canada.

10. (2015) Spring 2015 Report of the Auditor General of Canada: Chapter 4 Access to Health Services for Remote First Nation Communities. Ottawa: Office of the Auditor General of Canada.

11. (2011) Status Report of the Auditor General of Canada to the House of Commons: Chapter 4 Programs for First Nations on Reserves. Ottawa: Office of the Auditor General of Canada.

12. (2013) Report on Equality Rights of Aboriginal People. Canadian Human Rights Commission, Cat. No. HR4-22/2013E-pdf  ISBN: 978-1-100-22172-4

13. (2016) First Nations Child and Family Caring Society of Canada v. Attorney General of Canada (Minister of Indian Affairs and Northern Developments Canada), [2016] CHRT 2.

14. (2018) Spring 2018, Reports of the Auditor General of Canada to the Parliament of Canada, Independent Auditor’s Report, Report 5: Socio-economic Gaps on First Nation Reserves – Indigenous services Canada, at para. 5.32, 5.94, 5.95, 5.97 & 5.99. ISBN 978-0-660-26283-3

15. (2017) Herbert, J. R. G., Indigenous Consultation and Accommodation of Immemorial Rights: Pre-existing Societies Initiative.

16. (2004) United Nations Economic and Social Council, Commission on Human Rights, Prevention of Discrimination and Protection of Indigenous Peoples, Indigenous Peoples Permanent Sovereignty Over Natural Resources: Final Report of the Special Rapporteur, Erica-Irene A. Daes, at para. 6, 8, 10, 17, 30, 32, 39, 40, 43 & 48. E/CN.4/Sub.2/2004/30  

6. “The interest in the application of this principle to indigenous peoples follows from the similarity of their circumstances to the situation of the peoples to whom the principle was first applied. The principle of permanent sovereignty over natural resources in modern law arose from the struggle of colonized peoples to achieve political and economic self-determination after the Second World War. The principle is this: Peoples and nations must have the authority to manage and control their natural resources and in doing so to enjoy the benefits of their development and conservation. Since the early 1950s, the principle has been advocated as a means of securing for peoples emerging from colonial rule the economic benefits derived from the natural resources within their territories and to give newly independent States the legal authority to combat and redress the infringement of their economic sovereignty arising from oppressive and inequitable contracts and other arrangements orchestrated by other States and foreign companies. The principle was and continues to be an essential precondition to a people’s realization of its right of self-determination and its right to development.” [Emphasis Added]

8. “As a result, it has become clear that meaningful political and economic self-determination of indigenous peoples will never be possible without indigenous peoples’ having the legal authority to exercise control over their lands and territories. Moreover, these exchanges have led to a growing recognition that an appropriate balance can be reached between the interests of States and the interests of indigenous peoples in the promotion and protection of their rights to self-determination, to their lands, territories and resources, and to economic development.” [Emphasis Added]

10. “While the principle originally arose as merely a political claim by newly independent States and colonized peoples attempting to take control over their resources, and with it their economic and political destinies, in 1966 permanent sovereignty over natural resources became a general principle of international law when it was included in common article 1 of both International Covenants on Human Rights. Common article 1 provides in pertinent part:

“1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

“2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.”” [Emphasis Added]

17. “There is a growing and positive trend in international law and practice to extend the concept and principle of self-determination to peoples and groups within existing States. While understood to no longer include a right to secession or independence (except for a few situations or under certain exceptional conditions), nowadays the right to self-determination includes a range of alternatives including the right to participate in the governance of the State as well as the right to various forms of autonomy and self-governance. In order to be meaningful, this modern concept of self-determination must logically and legally carry with it the essential right of permanent sovereignty over natural resources. The considerations that lie behind this observation must now be examined.” [Emphasis Added]

30. “Thus, we may conclude that the term “sovereignty” may be used in reference to indigenous peoples without in the least diminishing or contradicting the “sovereignty” of the State. The well-established use of the term in many areas of the world rules out any such implication.” [Emphasis Added]

32. “With an understanding of how the concept of sovereignty is applied to indigenous peoples, it becomes further apparent that, when examining their right of self-determination, the principle of permanent sovereignty over natural resources should also apply to indigenous peoples. There are a number of reasons for this. They include the following:

(a) Indigenous peoples are colonized peoples in the economic, political and historical sense;

(b) Indigenous peoples suffer from unfair and unequal economic arrangements typically suffered by other colonized peoples;

(c) The principle of permanent sovereignty over natural resources is necessary to level the economic and political playing field and to provide protection against unfair and oppressive economic arrangements;

(d) Indigenous peoples have a right to development and actively to participate in the realization of this right; sovereignty over their natural resources is an essential prerequisite for this; and

(e) The natural resources originally belonged to the indigenous peoples concerned and were not, in most situations, freely and fairly given up.” [Emphasis Added]

39. “To recapitulate, the developments during the past two decades in international law and human rights norms in particular demonstrate that there now exists a developed legal principle that indigenous peoples have a collective right to the lands and territories they traditionally use and occupy and that this right includes the right to use, own, manage and control the natural resources found within their lands and territories. It remains to state if possible the content and scope of this right as well as its possible limitations.”

40. “Indigenous peoples’ permanent sovereignty over natural resources might properly be described as a collective right by virtue of which the State is obligated to respect, protect, and promote the governmental and property interests of indigenous peoples (as collectivities) in their natural resources.” [Emphasis Added]

43. “There is not such agreement concerning subsurface resources despite the fact that several domestic and international cases have recognized such a right. 46 Indeed, as noted above, in many countries, subsurface resources are declared by law to be the property of the State. Such legal regimes have a distinct and extremely adverse impact on indigenous peoples, because they purport to unilaterally deprive the indigenous peoples of the subsurface resources that they owned prior to colonial occupation and the creation of the present State. Other property owners in the State never owned such resources and thus were never deprived of them. Thus, the system of State ownership of subsurface resources is distinctly discriminatory in its operation as regards indigenous peoples. The result of these legal regimes is to transfer ownership of indigenous peoples’ resources to the State itself. Of course, in some situations, the ownership of the resources in question was transferred freely and lawfully by the indigenous people who held it. These situations do not concern us here. However, as a general matter it is clear that indigenous peoples were not participants in the process of adopting State constitutions and cannot be said to have consented to the transfer of their subsurface resources to the State. The exclusion of indigenous peoples from constitution-making has been noted by this Special Rapporteur in a previous work.” [Emphasis Added]

48. “Are there any qualifications or limitations on this right? Few if any rights are absolute. Limitations, if any, on this right of indigenous peoples to their natural resources must flow only from the most urgent and compelling interest of the State. For example, article 4 of the International Covenant on Civil and Political Rights provides for limitations on some rights only “in time of public emergency which threatens the life of the nation and which is officially proclaimed”. Few if any limitations on indigenous resource rights are appropriate, because the indigenous ownership of the resources is associated with the most important and fundamental of human rights: the rights to life, food, and shelter, the right to self-determination, and the right to exist as a people. The principal question is whether under any circumstances a State should exercise the State’s powers of eminent domain to take natural resources from an indigenous people for public use while providing fair and just compensation. Indigenous peoples’ representatives have argued in the working group on the draft United Nations declaration of the Commission on Human Rights that States should never compulsorily take indigenous lands or resources even with payment of compensation. States already have taken far too much of indigenous lands and resources, and, it is argued, States rarely or never have a truly urgent or compelling need to take indigenous lands or resources. States have not yet provided comments or suggestions for this paper that relate to this critical issue. As a result it may be premature to reach a conclusion on the question of States’ authority to compulsorily take indigenous resources with fair and just compensation.” [Emphasis Added]

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