How Good Was Harper? (for Aboriginals)

By Tom Flanagan

From the Archives: Originally published in THE DORCHESTER REVIEW, Autumn/Winter 2017, pp. 57-61.

The Dorchester Review asked me to respond to the question, “How good was Stephen Harper for Aboriginals?” But there can be no single answer to a question like that because it all depends on what one would like to see happen. So here is a more or less factual account of what Mr. Harper tried to do with the Aboriginal file during his time as prime minister and how his initiatives turned out. I offer some tentative evaluations, but I’m sure readers will reach their own conclusions.

Although I worked closely with Stephen Harper off and on from 1991 to 2005, I can’t remember a single conversation about Aboriginal issues. As far as I knew then, his views were similar to those I had expressed in books such as Riel and the Rebellion: 1885 Reconsidered and First Nations? Second Thoughts. When he was a Member of Parliament, he asked me to write a speech opposing a posthumous pardon for Louis Riel; and when he was president of the National Citizens Coalition, he invited me to address a Toronto audience about my then recently published book First Nations? Second Thoughts. But he never gave me the impression that Aboriginal issues were high on his to-do list. It is thus rather surprising that the government which he led for almost ten years pursued the most active Aboriginal legislative agenda since the 1951 revision of the Indian Act. It is particularly surprising given that the government’s first act in this area was to cancel Paul Martin’s Kelowna Accord, which was supposed to add $5 billion to aboriginal spending over the following five years. But Mr. Harper’s approach turned out to be highly activist.

Neither Mr. Harper nor any of his ministers of Aboriginal affairs ever articulated a grand vision of what they were doing; indeed, his incrementalist government avoided enunciating grand visions in almost all areas. But in retrospect one can discern a certain logic tying together the major initiatives. Some tried to deal with ancient historical grievances, apparently in hopes of wiping the slate clean for future progress. Others tried to normalize Aboriginal governance, making it more similar to the general legal framework of Canadian life.

Behind these two directions lay two rather different influences that were active in the Conservative government. One came from his first minister of Aboriginal affairs, Jim Prentice, and from the chief adviser in the Prime Minister’s Office on Aboriginal issues, Bruce Carson. Both Mr. Prentice and Mr. Carson had many years of experience in the Aboriginal arena, and both thought of themselves as Red Tories, dedicated to righting old injustices. On the other side were caucus and cabinet members with Reform and Canadian Alliance backgrounds, suspicious of special status and wanting to make Aboriginal people more like other Canadians. The two approaches didn’t necessarily conflict, but they did fit together rather uneasily at times.

I don’t know if any insiders thought of it this way, but to an outside observer the Harper government’s aboriginal policy looks like a vector of these two influences. Like all political vectors, the result involved zigzags and internal contradictions, leaving everyone with something to complain about. But in an area where vested interests and strong clashes of opinion make it difficult to get anything done, Mr. Harper managed to achieve a great deal. Let me discuss five of his major initiatives that were enacted into legislation.

UNQUESTIONABLY, the government’s biggest single initiative was the 2008 apology for residential schools, accompanied by a settlement agreement that has paid out about $5 billion to those who attended the schools, which might be seen as the equivalent of the $5 billion that was saved by cancelling the Kelowna Accord. The apology also announced there would be a Truth and Reconciliation Commission, whose report is now supplying an indigenous agenda for the government of Justin Trudeau. The residential schools issue had a long history, and negotiations toward an apology and compensation were already well advanced when the Conservatives came to power. But encouraged by Mr. Prentice, Mr. Harper assumed ownership, for which he received considerable public credit at the time. Unfortunately, neither he nor his advisers seemed to foresee how the Truth and Reconciliation Commission would take on a life of its own, going far beyond the obvious mandate of letting survivors tell their stories and becoming a miniature Royal Commission on Aboriginal Peoples.

The other great initiative for righting past wrongs was the revision of the specific claims process, which also came to fruition in 2008. (Specific claims involve alleged violations of treaty or the Indian Act, usually in the administration of reserve lands.) The legislation expedited the process and set up a new tribunal staffed with real judges. The minister of finance was persuaded to set aside a large amount of money so that claims could be settled quickly. The intention was to get this over with, no matter how much it might cost. Yet the legislation did not contain a cut-off date for filing new claims, so the dream of closure has proven illusory.

Several legislative initiatives involved the modernization and normalization of First Nations governance. Perhaps the most widely supported was the matrimonial property legislation passed in 2013, which filled a longstanding gap in Canadian law. Provincial legislation on matrimonial property had been held by the courts not to apply to property on Indian reserves, leaving many spouses without recourse in cases of death or divorce. The new bill allowed First Nations to create their own legal regimes while setting up a default legal code for those that chose not to act. Passed after wide consultation and years of consideration in Parliament, it was a model of how something approaching consensus can occasionally be achieved in contentious areas.

Also quite popular, though not with the chiefs in the Assembly of First Nations (AFN), was the 2008 extension of the Canadian Human Rights Act to cover the Indian Act, so that aggrieved members of First Nations and residents of Indian reserves (overlapping but not identical categories) can now complain to human rights tribunals about discrimination based on race, gender, handicap, etc. This legislative change made First Nations subject to the same human rights standards that apply to other governments in Canada. It also opened a new avenue for attacking Canadian federal government policy, which can now be grieved before a human rights tribunal. The biggest example thus far is the Cindy Blackstock case, in which a children’s advocate and the AFN convinced a human rights tribunal that federal spending on First Nations child welfare was inadequate. The tribunal could not force the federal government to spend more money, but it furnished an important talking point in ongoing negotiations over child welfare. Having seen the financial potential of human rights, maybe the AFN has reconsidered its original opposition.

PERHAPS MOST controversial was the First Nations Financial Transparency Act (2013), which required First Nations to file annual audited financial statements, including salaries and expenses of chief and council, for publication on the website of Aboriginal Affairs and Northern Development Canada (now Indigenous and Northern Affairs Canada, or INAC). It was vigorously opposed by the AFN on grounds that its imposition violated the prerogatives of Aboriginal self-government, and several First Nations challenged it in court after passage of the legislation. Yet opposition may not be all that widespread. Compliance is still over 80% even though the new Trudeau government announced that it would not take any measures to enforce the legislation. Maybe most First Nations realize that this legislation has merely extended to them a standard of fiscal disclosure similar to that which applies to all other governments in Canada.

These five major initiatives all stem from Mr. Harper’s early years of minority government. Some did not receive final passage until after his majority government was elected in 2011, but they all had their origins in earlier years. Indeed, things went sideways on the Aboriginal front after Mr. Harper received his majority mandate. The new government seemed to have two major priorities: restoring the federal budget to balance after going $50 billion in the red during the Great Recession of 2008, and getting new pipelines built to enhance Canada’s status as a self-proclaimed “energy superpower.”

On the budgetary front, Mr. Harper did not exempt the Aboriginal spending envelope from fiscal discipline in his quest for a balanced budget. In constant dollars, INAC program spending was less in 2015/16 than it had been in 2007/08. There were some ups and downs; but, apart from the $5 billion expenditure on residential school compensation, the Harper years were basically a time of stasis or even retrenchment for aboriginal spending. Needless to say, that did not improve the mood of First Nation leaders.

ACTUALLY, Mr. Harper agreed that underfunding was a problem, at least in some areas. After long negotiations with AFN National Chief Shawn Atleo, he was willing to add $1.9 billion for education to the 2014/15 budget. This was part of a larger deal announced on February 7, 2014, involving a proposed First Nations Control of Education Act, which would, however, leave the federal government with a role in monitoring the quality of First Nations education and demanding certain standards. Although the deal was announced with great fanfare, Mr. Atleo could not get the requisite support from other chiefs in the AFN. He ended up resigning as national chief, and the money was never spent.

Mr. Atleo seemingly failed because he was perceived as being too close to Mr. Harper, whose standing among First Nations was diminished by that time by his energy policies. Wanting to accelerate the sometimes glacial process for approving new oil and gas pipelines, his government had introduced revisions to the Navigable Waters Protection Act. The basic idea was to consolidate the approval process and avoid duplication, which sounds reasonable enough, but proved to be a political loser in the mood of climate hysteria gripping Canada. This led to foundation of the Idle No More movement in late 2012, which became a backlash not only to Mr. Harper’s push for pipelines but also to much of his other legislation, proposed as well as already passed.

One important victory of Idle No More was to prevent passage of the First Nations Property Ownership Act. The brainchild of Manny Jules, Chief of the First Nations Tax Commission, the bill was popularized in a 2010 book on which an academic colleague, Chris Alcantara, and I collaborated with Mr. Jules and his economic adviser, André Le Dressay. Entitled Beyond the Indian Act: Restoring Aboriginal Property Rights, the book proposed legislation to create an optional regime of individual property ownership on Indian reserves. It would apply only to those First Nations that decided to opt in; no First Nation would be forced to do anything against its will. Unlike what happened in the United States with the 19^th-century Dawes Act, privatized land would remain legally subject to the jurisdiction of the First Nation. A non-member purchasing fee-simple land on a reserve would be more or less in the position of a Torontonian buying property in Montreal: you have to take your chances with the local government in matters of zoning, services, and property tax. Of course, a legal framework administered by the First Nations Tax Commission would regulate these matters, just as the provinces legislate a framework for their local governments to administer lands.

Although Mr. Harper never spoke publicly about the proposal, Mr. Jules received many positive signals of support from Parliamentary committees and ministers of the Crown and was authorized to draft the legislation, subject of course to review by the Departments of Justice and of Aboriginal Affairs. It seemed like a modest, non-coercive measure, and it was truly an Aboriginal-led initiative. However, Idle No More and the AFN opposed it vociferously, apparently seeing it as the thin end of the wedge towards the coercive privatization of all First Nation lands; and in the end the Harper government never tabled the legislation in Parliament.

It was a missed opportunity of historic proportions. All decision-makers were onside  — the prime minister and cabinet, as well as Conservative majorities in the House of Commons and the Senate. If an optional private-property bill could not be passed under those circumstances, when can it pass? Probably not in my lifetime, nor in that of Manny Jules. But of course Mr. Harper and the cabinet had to manage many issues simultaneously; they must have decided they could not waste any more of their rapidly depleting political capital on a measure that had found only limited support, and a great deal of fervent opposition, in the Aboriginal community.

HERE IS HOW I would evaluate the results of Mr. Harper’s ten-year struggle with Aboriginal issues. Although a couple of his important initiatives — educational reform and individual property rights — were blocked, his government can take credit for several legislative achievements, including the residential school apology and settlement agreement, the reform of matrimonial property, a new specific claims process, the addition of human rights claims to the Indian Act, and financial transparency requirements. It is certainly a record of achievement in the sense of getting things done, but the long-term consequences in some cases cannot be what the Conservatives had in mind.

Because no time limitation or cut-off was included in the specific claims legislation, there is still no closure. Anthropologists, historians, and lawyers working for First Nations have a boundless capacity to make past government decisions look like injustices according to ever-evolving standards of fairness. Specific claims process are now an even better entrenched process of mining the past for present financial payoffs.

The same can be said of extending the reach of the Canadian Human Rights Act over the Indian Act. Construed narrowly to empower complaints against discrimination by First Nation governments, it may have made some sense; but as actually passed it created another way of shaking the money tree, setting up human rights tribunals as judges of federal policy. Like specific claims, this will prove to be a lucrative and never-ending source of revenue outside the normal budgetary process.

The long-term consequences of the residential schools apology and the Truth and Reconciliation Commission are particularly harmful. Residential schools have been transformed into a talisman beyond rational discussion. They are now a master grievance invoked on all occasions to explain everything that is sad about the lives of First Nations people, including poverty, suicide, alcoholism, drug addiction, and child abuse. Bear in mind that we are not talking now about those who attended residential schools, but about their children and grandchildren. Social pathologies are now attributed to an unproven and unprovable theory of community trauma. It is not a result that Mr. Harper or any conservative would have wanted.

The Truth and Reconciliation Commission did not follow the normal meaning of reconciliation as mutual understanding and forgiveness. It made little effort to explain why residential schools were established, what the realistic alternatives were at the time, and what good they may have accomplished. Under the heading of “reconciliation,” its report calls for the virtual abandonment of parliamentary democracy in Canada in favour of an unworkable confederation of hundreds of sovereign peoples — again, nothing that Mr. Harper or any conservative would have wanted.

Justin Trudeau talked the talk to get elected in 2015, but once in office he has not walked the walk. Above all, he reneged on his promise to adopt the entire United Nations Declaration of the Rights of Indigenous Peoples, which would have recognized a First Nations veto over resource development and abrogated the sovereignty of the Crown. The Commission’s vision of a multinational confederation cannot be implemented by responsible liberals any more than by responsible conservatives. Having given it so much publicity will in the end only increase the sense of grievance that it was supposed to heal.

WHAT CAN BE learned from the story of Mr. Harper and the First Nations? Let me end on notes of both pessimism and optimism. Pessimistically, the government of Canada cannot strike a grand bargain with the First Nations leadership to bring about “reconciliation.” Any initiative, any deal, even if politically successful in the short term, will become a platform for new demands. Grievance has become a way of life and a means of making a living in the Aboriginal industry.

Optimistically, First Nations people are making progress. As individuals they are seeking education and acquiring trades and professions, which they practice both on and off reserve. Entrepreneurial First Nations are forging ahead in the business world, generating own-source revenue to enhance their wealth and community well-being. They have been particularly successful in real estate projects, the hospitality industry, and natural resource development. The latter is the best hope for many First Nations whose reserves are located far from urban opportunities. Oil and gas, mining, and forestry can provide a better living for such First Nations if development is not stifled by apocalyptic hysteria about global warming. The main task for government is now to get out of the way. Unfortunately, Mr. Trudeau has made a bad start by cancelling the cabinet-approved Northern Gateway Pipeline, which would have entailed generous own-source revenue opportunities — cash payments, jobs, contracts, and equity ownership — for dozens of First Nations along the corridor. Mr. Trudeau’s promises to increase federal transfers to First Nations are a poor replacement for allowing and encouraging them to earn their own revenue.

Originally published in THE DORCHESTER REVIEW, Autumn/Winter 2017, pp. 57-61.