Trust. Integrity. Reputation.
Trust. Integrity. Reputation.
Top News - October - 2005
Volume 23 - Number 7
INAC's employment numbers questioned
FNUC report delayed
A reasonable voice - Editorial
Searching for an Aboriginal governor general- Guest ColumnCheck out Ontario Birchbark
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By Paul Barnsley, Windspeaker Staff Writer, Vancouver
A mediation panel created by an act of Parliament has been in existence for 12 years and has never heard a single case.
The terms of Canada's largest and most internationally heralded land claim agreement are protected by Section 35 of Canada's Constitution but the separate contract that governs how the agreement will be funded is not.
These are just two of the items highlighted in a report commissioned by the federal government that was delivered on Aug. 31. Although it is not yet a public document, Windspeaker obtained a copy of Thomas R. Berger's report to Indian Affairs Minister Andy Scott on how best to break the stalemate in talks aimed at renewing the 1993 Nunavut Land Claims Agreement (NLCA). Now two years past July 9, 2003, the date when the 10-year initial term of the NLCA expired, the parties have been unable to agree on the terms or the process of renewal.
Berger was appointed as conciliator for the NLCA implementation contract negotiations on May 26 and got right to work, spending June and July meeting with all the parties in both Ottawa and Nunavut.
The former judge was asked to issue his final report within 90 days of being retained or to file an interim report by that time. He filed an interim report only because one sticky area will be the subject of a separate report to be issued sometime in the next few months. That report will deal with Section 23 of the NLCA, which calls for representative employment levels of Inuit people in the public service. The commitment made is far from being satisfied, with Inuit employment numbers languishing far below half the targeted number in both the federal and Nunavut civil service.
Berger was retained as a "recognized problem solver who could make a neutral assessment of the issues and provide the parties with recommendations."
All three parties to the agreement-the federal government, the territorial government of Nunavut and Nunavut Tunngavik Inc. (NTI), the corporation that oversees the NLCA-hailed Berger's appointment when it was announced in May.
Stating early that he based his analysis on three "underlying considerations"-the status of the NLCA as a constitutional document, the principle that the honor of the Crown must be observed in all dealings with the Inuit, and the contents of the actual agreement-Berger said he detected one central problem that needed to be addressed.
"It appears that the parties-Nunavut and NTI on one side, Canada (represented by Indian and Northern Affairs) on the other-lack confidence in one another's good faith. They do not have the sense that they are working together towards common goals," he wrote. "They cannot agree on what issues fairly arise under the NLCA, and they cannot agree on what is properly considered 'implementation.' NTI seeks to cloak as many issues as possible in the language of contractual obligation; Canada wishes to limit the scope of its legal obligations and to discuss broader issues as questions of policy having nothing to do with the land claim."
Berger said both sides will have to modify their approaches if progress is to be made.
Later in the report, Berger quoted criticisms leveled by the auditor general in 2003 that Indian and Northern Affairs Canada seems focused on fulfilling the letter of land claim implementation plans, but not the spirit of those plans.
"Officials may believe that they have met their obligations, but in fact they have not worked to support the full intent of the land claims agreements," wrote the auditor general.
"I agree," wrote Berger.
Just because a deal has been finalized, he said, does not mean that Canada's obligation to uphold the honor of the Crown has ended even if the details are spelled out in a contract rather than a piece of legislation with the power of the Constitution behind it.
"Treaty making and treaty implementation are distinct but not strictly isolated concepts," he wrote. "I am of the view that the implementation process must be approached broadly with a view to achieving the purposes of the NLCA."
Clearly aware of his status as a neutral observer, Berger was careful to write in diplomatic and non-critical language whenever possible. But a couple of situations he discovered attracted blunter language.
He noted that certain areas of the agreement were phrased in an inexact fashion (such as the "fair and reasonable remuneration" that the NLCA stated would be paid to members of the six boards created to administer the agreement).
"So what do such words really settle? The obligation is expressed so generally as to be exceedingly difficult to enforce. So long as some funding is provided, arguments will be premised on the interpretation of the language and it is subject to almost impossibly wide interpretation," he wrote. "Drafters employ such phrases to describe obligations precisely because the parties cannot agree on the specifics; it is a mistake to think that, come implementation, consensus among the parties as to what the text means-legally speaking-will be any more advanced."
Quibbling over the meaning of terms would not lead anywhere, he added.
"In the end, successful implementation depends far more on the goodwill of the parties and the honor of the Crown than on any formal requirements derived from the NCLA or the implementation contract," he wrote.
Berger reserved his harshest criticism for a tactic that has been employed by the Crown almost from the moment the NLCA took effect.
Article 38 of the NLCA created the Nunavut Arbitration Board (NAB) to resolve disputes "arising in the interpretation, application and implementation of the agreement."
The legislation calls for disputes between an Inuit organization and government to be decided by the NAB but, Berger wrote, "As of today, no case has come before the board owing to Canada's refusal to agree to arbitrate when such requests have been made."
Later he explained that "Canada has thus far refused in every case to agree to arbitration on the ground that it would interfere with Parliament's exclusive authority regarding appropriation of money."
Berger took aim at Canada's position, saying that Parliament passed the NLCA, including Article 38, with eyes wide open and that makes it the law of the land.
"It seems disingenuous for Canada to argue that the executive branch can take a position in defense of Parliament's prerogatives when Parliament itself has passed a measure that it is prepared to submit matters in the very broad category described by Article 38 to arbitration," he wrote. "To the extent that Canada has refused its consent on the ground that to agree to arbitrate would usurp Parliament's prerogatives, I think it has acted misguidedly."
Thomas Berger recommended that the parties agree in advance to refer a matter to non-binding mediation if they can't agree to arbitration.
"No party could act unreasonably, content in the knowledge that it need never submit the question to an impartial third party," he wrote.
Berger's report in many ways vindicates the complaints set out by the Land Claims Agreement Coalition in a letter sent to Prime Minister Paul Martin in March 2004. The group of seven Aboriginal organizations that have signed comprehensive claim agreements told the prime minister that little happened after the agreements were finalized.
Berger said he heard the same complaint on a number of occasions from all parties, including from federal officials.
"They believe that a malaise set in during the implementation process after the 1999 miracle of the creation of Nunavut," Berger wrote. "More than once, they summarized Canada's attitude with a gesture-dusting off their hands-and a word-'Next!'"
But Berger also said that most of the people involved, on all sides, were determined that Nunavut should succeed. "They are not fatigued, though they are certainly frustrated. They want to get on with the job," he wrote.
INAC's employment numbers questioned
By Paul Barnsley, Windspeaker Staff Writer, Ottawa
The Department of Indian and Northern Affairs Canada (INAC) committed itself in 1996 to achieving a 50 per cent Aboriginal employment rate and, as recently as this year, gave its own efforts on meeting that goal a passing grade. But a report compiled by an Aboriginal INAC employee questions the department's methods of collecting the data that produces the employment rate.
That employee is a member of the Committee for the Advancement of Native Employees (CANE). The report suggests the department is aware the methods it uses are questionable, but continues their use because they produce results the department can live with.
CANE's mandate is to work for the recruitment, retention, advancement and improved quality of employment for the Aboriginal employees of INAC. Its report looked at INAC's Aboriginal Employment Statistics (AES) and right from the start it is aggressively critical.
"The AES do not properly reflect the true number of Aboriginal employees in the department.
Furthermore, this paper will assert that the entire department of INAC, in particular, human resources, have not implemented the 50 per cent Aboriginal hiring policy issued under the authority of the assistant deputy minister of corporate services, INAC," the report reads.
Noting that the INAC human resources department collects their data using a PeopleSoft software program that has been found wanting by other federal departments, the report's author quoted from a Department of Justice review titled, "PeopleSoft use in the department."
"In general, we found that PeopleSoft is under-used. Many users treat the system as their secondary reference, and as a result, the quality and integrity of PeopleSoft data suffers." That calls all the INAC numbers into question, the CANE member wrote.
The way INAC identifies which employees are Aboriginal, and which aren't, was also singled out for criticism.
The CANE member argues that the department allows employees to self-identify without having a system in place to ensure that those who claim to be Aboriginal actually are.
"INAC created an employee self-identification declaration form. Please note that under Section D on the form, an INAC employee may declare as an Aboriginal person without any proof. This has led to many internal problems that have not been remedied. For example, in a July, 2001 email from the deputy minister's office on self-identification, it states, 'It has been brought to management's attention that non-Aboriginal persons may be declaring themselves as Aboriginal persons in Aboriginal-only staffing opportunities in order to advance their career. This is of great concern to the department.'"
In an attempt to remedy the abuse, CANE worked with INAC officials to develop an Aboriginal Declaration Form (ADF) that requires proof of Aboriginal ancestry. The form is used for positions in the Aboriginal Employment Program (AEP) which offers some positions only to Aboriginal persons in an attempt to work toward the 50 per cent employment goal.
But INAC's human resources branch has "separated the ADF from the self-identification form. CANE requested that human resources replace the ADF form with their self-identification form to ensure proof of Aboriginal ancestry. In doing so, this would eliminate the abuse. However, human resources did not comply."
All this means that the numbers produced by the department are not reliable, the CANE member concluded.
In order for a government department to be able to generate accurate employment equity statistics, the Canadian Human Rights Commission (CHRC), the group responsible for ensuring compliance with the Employment Equity Act, requires that 80 per cent or more of the employees must respond to questionnaires.
"In an email dated April 12, the corporate employment equity advisor at INAC stated, 'All sectors are below the target of 80 per cent rate of return set by CHRC.' Therefore, based on the Employment Equity Act, the data collected by INAC is invalid," the CANE report stated.
When legislation was passed leading to the creation of a new territory of Nunavut, provisions were made to ensure that Inuit people would occupy a representative share of the government jobs, both in the federal and territorial public service. Inuit make up 85 per cent of Nunavut's population but the Inuit people working in the government is far below that level.
In a report issued by Nunavut Tunngavik Inc. and the government of Nunavut called
Annaumaniq, it states that in 2002-2003 the government of Canada provided $692 million under Territorial Funding Formula.
"Of the amount paid out to government of Nunavut employees in salaries and benefits, 85 per cent should have been paid to Inuit. In fact, only 42 per cent went into Inuit pockets. After factoring in a similar proportionate loss in federal government employment, Pricewaterhouse Coopers found that this loss amounted to $123 million in 2002-2003," the Annaumaniq report added.
The CANE report author wonders aloud how much money that should be paid to Aboriginal employees of INAC is paid instead to non-Aboriginal people.
Windspeaker attempted a crude estimation. We know from AES statistics that there were 4,060 INAC employees in the department in the 2004-05 fiscal year. The official INAC numbers-which have now been challenged as unreliable-show that 1,113 Aboriginal employees are included in that number. The best INAC can claim is 27 per cent Aboriginal employment.
It's impossible to know how many of those 1,113 people are indeed Aboriginal, but even if all of them are and they occupy a representative share of jobs at all levels of the department, then approximately 1,000 salaries that should be going to Aboriginal people are not. Even at the extremely low average of $50,000 per year (executive level salaries in the federal civil service are often in excess of $200,000), a minimum of $50 million per year is not getting into Aboriginal people's pockets.
The report's author clearly believes the department is allowing unreliable numbers to be compiled so it can claim to be moving towards its 50 per cent commitment.
"It is impermissible for a federal government department to collect data that is known to be invalid and then publish statistics on Aboriginal employment in the department using the unreliable data.
Furthermore, it allows INAC to make ... statements such as, 'The department has been viewed as the leader among federal government departments in Aboriginal employment initiatives, having established itself with central agencies as an employer with special needs concerning the recruitment, advancement and retention of Aboriginal people.' This statement is completely untrue," the CANE member wrote.
Staffing at INAC headquarters is especially low in Aboriginal content, the CANE member wrote.
"Of the total 313 positions available at INAC headquarters in that last four years, six positions were filled with Aboriginal people. In accordance with the 50 per cent Aboriginal hiring policy, 156 positions should have been filled with Aboriginal people. There seems to be a disconnect between INAC and politicians with the upcoming First Minister Meeting and discussions around 'closing the gap' between the Aboriginal population and the rest of Canadians," the author wrote.By Paul Barnsley, Windspeaker Staff Writer, Regina
The seven-member task force appointed to look into the controversy dogging the First Nations University of Canada (FNUC) has asked for more time to work on its report.
Creation of the task force was called for in a resolution from the floor at the FSIN chiefs' assembly on June 8. The members were selected by the FNUC board of governors on July 29 and were asked to file a report within 45 days. If they'd met that deadline, the task force would have reported at the fall chiefs' assembly scheduled for Oct. 19 and 20 in Saskatoon. Elections for the second and fourth vice-chief of the FSIN are also scheduled for that session. The report is now expected in November.
FNUC professor Del Anaquod and Muskeg Lake First Nation Chief Harry Lafond are the co-chairs of the task force. The other members are former Lac La Ronge Chief Harry Cook, Elder Tony Cote, past president of the University of Saskatchewan, George Ivany, Regina lawyer Merrilee Rasmussen and student Jessica General. At least four of the seven-Lafond, Cook, Cote and Rasmussen-have current or past ties to the FSIN.
The chiefs called for the review as students protested and media reports were suggesting the end was near for FNUC. The troubles became visible for the first time on Feb. 17-the same day that a memo signed by Federation of Saskatchewan Indian Nations (FSIN) Chief Alphonse Bird authorized Vice-chief Morley Watson to look into "alleged inappropriate conduct" at FNUC. On that day, Watson suspended three administrators-vice-president Wes Stevenson, finance director Kim Sinclair and Leonzo Barreno, director of international programs. All three were escorted from the campus and the other university staff members were told to go home for the day.
Wes Stevenson was fired on May 12. Two weeks later, on May 26, FSIN Senator Theresa Stevenson, Wes Stevenson's mother, was relieved of her senatorial duties. She claimed it was because she spoke up in defense of her son at the FSIN winter legislative assembly.
On June 13, Eber Hampton, who had served as the university's president since 1991, announced he was stepping down. Dawn Tato, dean of FNUC's Regina campus, was fired in July for criticizing the university administration. Other firings, resignations and demotions followed.
When the task force finally does hand down its report, a lot of people will be watching. Many academics are watching to see if this bold experiment can survive. The Association of Universities and Colleges of Canada (AUCC), the organization that can take away FNUC's accreditation as a recognized institution of higher learning, has demanded an explanation. Government funders are holding back money waiting for the smoke to clear.
One Native professor from another university, who asked not to be identified, said a key question that needed to be answered is: How much "university" is there in the First Nations University of Canada?
Observers are hopeful the task force is making an honest effort to sort it out and that effort will be free of political influence. While it would be unthinkable for the premier of Saskatchewan to be on the board of governors and making management decisions at the University of Saskatchewan, that is essentially what is going on at FNUC at the moment, academic sources say.
And in a mainstream university, professors who have secured tenure can simply not be fired unless they commit an extremely serious criminal offense. But at FNUC, several academics that criticized the administration were fired or demoted for insubordination.
That is seen by the academic community as a serious breach of academic freedom, the most cherished bedrock of university life and something seen as essential to the genuine pursuit of knowledge.
Observers are also wondering if the task force will look at the 32-member board of directors that has budgeted in excess of $600,000 for expenses for this fiscal year, far more-by any means of comparison-than any other post-secondary institution in the country.
Tyrone Tootoosis was relieved of his duties as artist-in-residence at FNUC. His wife, Winona Wheeler, lost her position as dean of the Saskatoon campus of FNUC after she spoke out against the FSIN incursion into the school. Tootoosis, an actor as well as an artist, has also been active as a member of the First Nation Coalition for Accountability, a grassroots group that calls for more accountability and transparency for First Nation governments. He is not popular with the chiefs and there are more than a dozen current or former chiefs on the FNUC board of governors.
Tootoosis was asked if he thought the task force asked for more time to avoid having this issue raised at the fall assembly.
"It could very well be the reason. However, I think we want to give the benefit of the doubt to the task force," he said. "As such, it may well be that their need for additional time is a result of the rather unprofessional manner in which the FSIN assembled the task force."
He was referring to the fact that well-respected Native Provincial Court Judge Mary Ellen Turpel-Lafond discovered she was on the task force when informed by a reporter. She quickly had her name removed.
With so many people on the political side absorbing so much money from the FNUC budget even though money is now tight due to all the problems, the grassroots activist was asked if he knew what the task force members were being paid. He said the going rate in Saskatchewan is about $1,000 a day but added that "how much" is not the issue.
"What is an issue is where is this money coming from? Is it coming from the already beleaguered FNUC budget? It seems, from all reports that FNUC cannot bear further incursions on their already difficult financial situation."
