Tuesday, October 1, 2013

Abolishing the Senate: Should Canada follow Ireland?

Senate reform has been in the news on both sides of the Atlantic recently, with both Ireland and Canada actively debating whether to keep, reform or abolish their respective Upper Houses of Parliament.  The debate in Canada was sparked by the Harper government's proposals to reform the Senate, but has been back in the news mainly due to a series of scandals involving Senators.  In Ireland, the issue has been pushed to the forefront by the Kenny government's proposal to abolish Seanad Eireann (the Irish Senate), which goes to a national referendum on October 4th.  The abolition of the Seanad  is part of a larger government programme of constitutional reform, but seems to have garnered public support largely as a cost-saving measure.

As a Canadian with Irish citizenship, I have been following with interest the debate in both countries.  Apparently I am not the only one: politicians in Canada are reported to be watching with interest the possible countdown to extinction of the Seanad.

There are a number of obvious similarities between the Canadian Senate and Seanad Eireann.  Both are based in the British Parliamentary model of a bicameral Parliament, or one made up of two houses, where the Upper House was meant to act as a check and balance, or a chamber of "sober second thought".  However, in both countries, the Senate has too often been used as a convenient place to house political cronies, and both have had their share of political scandal over the years.

There are some obvious differences between the two Senates as well.  While Canadian Senators are appointed until age 75, and entirely on the advice of the Prime Minister, the Taoiseach (the Irish Prime Minister) appoints only 11 of the 60 members of the Seanad.  Another 6 are elected by graduates of certain Irish universities, and the remaining 43 are elected through a complex panel system by an electorate consisting of TD's (Irish MP's), Senators and local councillors.  Irish Senators are elected only until Parliament is dissolved prior to the next general election, so they serve a maximum term of 5 years before seeking re-election.

The two Senates also differ in terms of powers.  While the Seanad can only delay the passage of legislation approved by the Dail (the Irish House of Commons), the Canadian Senate has somewhat more power, having the ability to vote down legislation altogether.

Finally, while Seanad Eireann can be abolished through the support of a simple majority of voters in a national referendum (like other changes to Ireland's constitution), Canada's Senate can only be reformed or abolished with the support of a certain number of Provinces. 

Proponents of Senate abolition in Canada are quick to highlight the similarities between the two Houses, and have also been quick to point out that Ireland would join a growing number of countries that have abolished their upper chamber, including New Zealand and some Nordic countries.  They further point to the fact that many of the small democracies that emerged post-communism have chosen not to have a second chamber at all.  The implication is that Canada should follow this lead, and eliminate the Senate.

However, this analysis misses one vital, fundamental difference between Canada and most countries that have no second chamber. Canada is a geographically large federal state: it was made up of separate colonies who joined together to form one large country, with significant regional differences. It has both a federal and a provincial level of government.  Like other large federal countries such as the United States, Australia and Germany, Canada's Senate is meant to provide balanced representation of these different regional interests, and ensure that the voice of smaller regions is not drowned out by larger ones.  In fact, equal representation of regions is one of the main reasons the Canadian Senate exists, and one of the reasons smaller provinces were willing to sign on to Confederation in the first place. 

Ireland, on the other hand is a relatively small unitary state.  It has no state or provincial level of government. And while there are certainly regional differences, they are simply not on the same geographic scale as Canada's.  In fact, most, if not all of the countries that Senate abolitionists point to as examples of countries with no second chamber, tend to be small, unitary countries like Ireland.  Getting rid of the second chamber might make sense for countries like New Zealand, Estonia or Sweden, which are relatively small and have no state or provincial level of government.  However, most large, federal states like Canada have chosen to keep their second chamber.

So while Ireland's experience with the Seanad is interesting to politicos, it's not an example Canadians should blindly follow.  As the debate on the future of the Senate continues to unfold in Canada, we need to bear in mind the uniqueness of our own particular situation, and the fact that our reasons for wanting to keep or kill our Senate are likely very different than Ireland's.

Sunday, August 25, 2013

HRM's Sewage Debacle: Who Pays for the Pipes?

If you've been following the HRM's recent decision to spend $25 million to pipe sewage from Timberlea to Halifax, you could be forgiven for having a difficult time figuring out who, exactly, is going to be paying for all these new sewage pipes.  As has been pointed out elsewhere, regional council has been provided with a series of confusing, and often conflicting explanations as to who, exactly, is paying for these new sewer pipes.   The decision to tear up the Chain of Lakes trail to run sewage from a handful of new subdivisions to be treated in Halifax has been criticized by some as "bad planning".  It's an example of bad accounting as well.

One of the major costs of urban sprawl in the HRM is the extension of sewer and water pipes to service new development.  Not only does it cost money to build new sewer and infrastructure, it also increases the future costs to service and maintain this growing infrastructure.  Water rates are often not enough to cover these ongoing costs.

Residents of the HRM are justifiably angry about recent and substantial increases to their water rates.  Yet much of the debate has ignored the significant geographic growth of the water and sewer system, and the spiralling cost of maintaining ever-growing infrastructure.   While HRM has a sewer and water service boundary, that boundary covers a substantial area.  In addition, regional council has frequently made decisions to extend that boundary, often to provide sewer and water to specific new subdivisions.

While developers pay the cost of installing all sewer and water pipes within the subdivisions they build,  these pipes then need to be connected to the larger water and wastewater systems.   As a result, developers pay a complex series of sewer development charges, trunk sewer charges and capital cost contributions levied by HRM and meant to cover the costs of all new infrastructure.  Unfortunately, these charges haven't proven adequate to cover the costs of new pipes, which has also contributed to rising water rates.  Halifax Water is now proposing a simplified and higher regional development charge meant to replace existing charges and cover the costs of new development.

There is no question the current system is confusing, as evidenced by council's recent decision regarding the Chain of Lakes pipe.  It would seem that when council originally voted to approve the extension of municipal sewer and water services to Brunello Estates and nearby subdivisions in 2007, they were told that the developers of these subdivisions themselves would pay for the pipes directly through capital cost charges in their area.

Halifax Water is now stating that while 10% of the cost of the new Chain of Lakes pipe will be paid by existing ratepayers, 90% of the cost will be paid by developers.  But not by the developers whose subdivisions actually require the pipes.  By charges levied on ALL developers in HRM.  And therein lies the shoddy accounting.  A developer who chooses to build in an area where infrastructure already exists, or requires minimal upgrades, will pay the same amount into the fund as the developers in Timberlea who require $25 million in new pipes.  This is effectively a subsidy for bad planning.

Unfortunately, Halifax Water's proposed new regional development charge won't change that.  Developers will pay a single standard charge, regardless of where a development is located relative to existing infrastructure.  While the higher charges will take some of the burden of paying for growth off of ratepayers, it will put that burden onto developers in general, not those that are driving up costs by demanding more infrastructure.  These costs will eventually be passed on to homebuyers, driving up the cost of ALL housing in HRM.

There are lots of valuable planning lessons we should learn from the Chain of Lakes sewage pipe debacle.  One of the most important is that if we are going to make growth pay for itself, we need to find a better way of accounting for it.  One way would be to ensure that development charges reflect the actual cost of servicing new developments.

Tuesday, May 7, 2013

A $3 Billion Boondoggle: Regional Planning and Sprawl in Halifax

Last Tuesday, HRM regional council unanimously approved a $823 million operating and $165 million project budgets for 2013-2014, for a total of close to $1 billion in spending. Several budget items were hotly debated, including the restoration of late night ferry service to Dartmouth, a fare increase and increased spending for transit, and a residential tax increase to expand snow plowing service. One issue that was not directly addressed in the budget was the growing cost of urban sprawl in HRM.

Yet the very next day, the HRM made public a report, by Stantec Consulting, which made it clear that sprawl could cost the HRM and its residents around $2.8 billion over the next 18 years.  Yes, billion with a "B".  Surprisingly, there has been much less public debate around this report than there was over much smaller line items in the budget.

This report, with the lengthy name "Quantifying the Costs and Benefits to HRM, Residents and the Environment of Alternate Growth Scenarios" is actually an interesting read for anyone following issues around taxation, spending and development in the HRM. The $2.8 billion price tag actually dwarfs the budget itself.  Yet nothing in the budget is likely to significantly change that cost, because that cost is tied into issues around how and where development takes place in Halifax, which is dealt with in the HRM regional plan.

The Regional Plan is a 25 year blueprint outlining "where, when and how future growth and development should take place in HRM."  All planning strategies, policies and regulations should flow from the regional plan.  The current regional plan was passed in 2006, and runs until 2031.  Although we are 7 years into the plan, we are only just now completing the first 5 year review of that plan.

One of the key targets in the plan is for population/housing growth.  It was expected that the HRM would add 100,000 residents over 25 years, and that 25% of this growth should take place in the urban core (the Peninsula and downtown Dartmouth), 50% in the suburbs, and 25% in rural areas. That growth was to be concentrated in a number of growth centres located throughout HRM, where it could be easily and cost effectively serviced.  Those targets are actually quite modest compared to other cities (Victoria, for example, has a target of essentially 90% within existing serviced areas).  But they are a starting point in combating the urban sprawl HRM has been experiencing.

Yet, in the first 5 years of the Plan, we fell short of even those modest targets.  Only 16% of growth took place in the urban core, while 56% took place in the suburbs, and 28% in rural areas. Indeed, one of the main issues raised in the review is the failure to reach these targets.  What the Stantec report shows is that failure to achieve our targets comes with a very real cost to the municipality, and ultimately to the taxpayer.

Stantec was asked to look at what would happen to municipal tax revenues, service costs and other costs of living in HRM if we reach our regional plan targets (the "RMPS Goal"), versus what would happen if we stay on the current path of 16% urban growth (the "Base Case").  Stantec also looked at two other scenarios: if we increased targets to 40% urban, 40% suburban and 20% rural (Scenario A); and if we increased the targets further to 50% urban, 25% suburban, and 25% rural.  They also considered certain health and environmental outcomes under all 4 scenarios. Their findings are very clear, and very striking.

As Stantec states in the report summary: "Results of our analysis clearly show the benefits of concentrating new residential development."  In other words, under current development patterns, the cost of providing municipal services often exceeds the amount the municipality receives in property taxes, leading to spiralling service costs, and rising taxes.  It also results in higher transportation costs, utility costs and other costs for citizens.   Concentrating growth (or densification) means the HRM can provide municipal services more cost effectively to residents, leading to lower spending, lower taxes, and more money for improved services.  It also decreases various economic costs to residents, making living in the HRM more affordable.

The report found that if we are able to get back on track and meet our RPMS targets, this will save the HRM and its residents close to $655 million over the next 18 years.  However, if we were to raise the bar and increase our targets under Scenario B, the savings are closer to $2.8 billion.  This breaks down to $148 million a year, which lowers the cost of living for all residents.  The municipal portion could be passed on in the form if improved services, tax relief, or both.

The report goes on to say that for nearly all services assessed, Scenario B (50% growth in the urban core) is the best option.  Scenario A (40% growth in urban core) is second best, although ranks first on transit use (mainly because more people walk under scenario B).  Sticking with our current RPMS targets was the third best option, and the status quo ranks dead last in almost every category.  The study also found that concentration of growth under Scenario B provides better health and environmental outcomes.  The study further showed that increased walking and transit use meant shorter commute times for all users of our roads.

To date, our Regional Plan has not proven up to the task of concentrating growth in the HRM, and this carries huge financial, economic, environmental and social costs. Yet some municipal staff continue to resist changes to the regional plan that would help us get back on track. Citizens of the HRM, whether they want lower taxes, better transit, less traffic, or more greenspace, should be concerned, if not outraged, that the HRM knowingly and blindly continues to follow a failing development path.

Fortunately, it is not too late to change our course.  The 5 year review process is ongoing: the plan is under review by the Community Design Advisory Committee, and a revised plan will soon be coming back to the public for final consultation, before going to council for approval.  Groups like Our HRM Alliance have been working hard to propose solutions that address sprawl and build a more liveable, sustainable HRM.  The public can have their say by attending a CDAC meeting, speaking at a public consultation, or contacting their councilor and urging them to support measures that will increase densification. 

Changing our residential growth patterns will lead to a more sustainable HRM, financially, economically, environmentally and socially, now and in the future.  It is ultimately up to us, the citizens of the Halifax Regional Municipality, to make that future a reality.  A better city is in our grasp.

Thursday, February 7, 2013

Is the Senate stuck with Patrick Brazeau and Mike Duffy?

A couple of Senators have been in the news lately for all of the wrong reasons.

Senator Patrick Brazeau was removed from the Conservative caucus after being arrested at his Gatineau home, due to an alleged incident of domestic abuse.  Brazeau, the youngest current Senator, has been a controversial figure since his Senate appointment in 2009, and has recently faced media scrutiny over a variety of issues, including the news he used his former father-in-law's on-reserve address to claim his income as tax exempt from 2004 to 2008.  Brazeau is also under investigation by a Senate committee for possible abuse of his Senate housing allowance.  Senators who live more than 100 km from Ottawa can have a second residence in the capital region and receive up to $21,000 a year to cover that expense.  Brazeau was apparently claiming his father's address as his primary residence, and then collecting the housing allowance for the house he rents in Gatineau.

However, while he is no longer a Conservative Senator, Brazeau can continue to sit in the Senate as an independent, although he faces possible suspension.

Another Senator who has found himself in hot water over his housing allowance is Mike Duffy, who was appointed as a Senator for Prince Edward Island in 2008.  Duffy, who grew up in P.E.I. but has lived in Ottawa for decades, has apparently been claiming a cottage in Cavendish as his primary residence, and then claiming the taxpayer-funded allowance for his home in Ottawa. 

However, in Duffy's case, the residence issue runs a little deeper: while there are very few qualifications for the position of Senator, one of them is that the Senator has to reside in the Province that they represent.  And it would seem that Duffy, while claiming to be resident in P.E.I., pays the non-resident tax rate for his P.E.I. property, does not have a P.E.I. health card (though he recently aked the government to fast-track his application for one) and is registered to vote in Ontario.  All of which raises the issue of whether Duffy was even eligible to be appointed as Senator for P.E.I. in the first place.

Unfortunately, with Canada's appointed Senate, Canadians don't have the option of voting anyone out.  So unless Stephen Harper succeeds in his bid for senate reform (which I hope he does), regardless of any wrongdoing, we might be stuck with these Senators until they turn 75.  For Brazeau, that's 37 years away.

But isn't there something the Canadian public or the Senate itself could do in the meantime?  The rules of the Senate do allow the Senate to suspend a Senator (with pay) and further provide that a Senator who is charged with an offence that may be indictable is immediately placed on leave of absence.

However, removal of a Senator is governed by the Constitution Act 1867.  As I mentioned above, Senators must meet certain qualifications to be eligible to be appointed in the first place.  They are (in brief) that a Senator must:
  • Be thirty years of age or over;
  • Own property valued at $4,000, over and above any debts;
  • Own real property in the province for which they are appointed (and within their District in Quebec)
  • Be a resident of the province for which they are appointed; and
  • Be a natural born or naturalized subject of the Queen.
Senate seats can be vacated due to death, resignation, or retirement, a Senator can only be removed for the following reasons (again, briefly):
  • Failure to attend two sessions of Parliament;
  • Taking an oath to or becoming a citizen of a "foreign power";
  • Declaration of Bankruptcy;
  • Conviction for treason or a felony or any "infamous Crime"; and,
  • Ceasing to reside or own property in the represented area
While the Constitution doesn't explicitly spell out who has the power to remove a Senator, it does state that any issues with respect to a Senators' qualifications must be determined by the Senate itself.

That is probably good news for Duffy.  While there might be some question about whether he was even qualified to be the Senator for P.E.I., it seems unlikely that the Conservative majority in the Senate would toss him for that.

For Brazeau, the news might not be so good.  While it appears he meets the residency requirements, he may also be facing investigation and criminal charges for domestic abuse, and possibly income tax evasion.  This could lead to jail time or personal bankruptcy, or could result in him failing to meet the property requirement or missing sessions of Parliament, any of which could result in him being turfed.  And unlike Duffy, at this point, it is unlikely he has many friends in the Senate who will plead his case.

Wednesday, February 6, 2013

Senate Reform: Teaching an Old Dog new Tricks

Maybe it's a slow news week in Ottawa, but the topic of Senate Reform is back on the agenda ... sort of.  The Harper government announced last week that they will be referring their latest senate reform bill to the Supreme Court of Canada for a determination on its constitutionality.  This is a process that could take anywhere from several months to a couple of years.  So while it is back on the agenda, it is not exactly on the front burner just yet.

When I brought up the topic the other day, someone joked that the only thing older than the topic of Senate reform is the senators themselves.  And indeed, the debate over Senate reform has been going on for much of Canada's history.  While it has never been the burning issue of the day, it's an issue that never seems to go away either.  There is something about the Canadian Senate that seems to invite the attention of every new generation of politicians, political scientists and democratic reformers.

The Senate is one of the two houses of the Canadian Parliament along with the House of Commons.  While the Senate is referred to as the Upper Chamber for protocol reasons, the House of Commons is by far the dominant chamber: the government is only responsible to the Commons, only the Commons can initiate money bills, most legislation starts in the Commons, and in practice the Senate rarely rejects a bill passed by the Commons.  The Senate was created at Confederation by what is now known as the Constitution Act 1867, and was styled somewhat on the British House of Lords.

The Senate was intended to counterbalance representation by population in the House of Commons by providing an equal voice to each region.  More seats were added as more provinces were added.  There are now 105 seats: Ontario, Quebec, the Maritimes and the Western Provinces each have 24, Newfoundland and Labrador has 6, and each of the territories have 1.

The Senate was also meant to be a chamber of "sober second thought" where Parliament would have a second chance to consider and scrutinize legislation before it was passed.  A cynic might suggest that the Fathers of Confederation didn't entirely trust the rabble elected to the Commons, and wanted to ensure that the wealthy landowning elite had the final say.  Regardless of the reason, sober second thought has come to be seen as one of the vital constitutional roles of the Senate.

Senators are appointed by the Queen, acting on the advice of the Prime Minister.  They were originally appointed for life, but now can only sit until they are 75 years old.  There are some basic qualifications such as residing and owning property in the province they represent, and being a minimum of 30 years of age.   Other than that, the Prime Minister essentially has unfettered power to choose appointees.

While Prime Ministers have occasionally used this power to appoint independents, members of other parties, or groups who are traditionally underrepresented in the Commons, for the most part this power has been used to appoint party loyalists who will dutifully pass government legislation.  As a consequence, the Senate has come to lack the power or the democratic legitimacy to oppose even the most unpopular legislation.  In a particularly egregious example, Brian Mulroney was able to exercise a special power to appoint eight extra Senators in order to overcome Liberal opposition and pass the GST.

For all of these reasons, the Canadian Senate has come to be seen as a bit of an anachronism, particularly compared to other countries that have elected Senates, such as the United States and Australia.  Even the House of Lords now has some elected members.

While some argue that the Senate should simply be abolished, democratic reformers have long championed senate reform, in the belief that an elected, effective Senate could actually serve an important role in our Parliamentary democracy.  In a country where power has become dangerously concentrated in the Prime Minister's Office, an elected Senate could serve as an important check and balance.  But changing from an appointed to an elected Senate would require a constitutional amendment, and meeting the strict requirements of the amending formula is politically very tricky and requires the support of at least 7 of 10 provinces.

To that end, since being elected in 2006, the Conservative Government has tried to strike a difficult balance between a pragmatic reform that can get the necessary political support without necessarily requiring a full-blown constitutional amendment.

Their first effort to let Canadians choose Senators in 2006 missed the mark somewhat.  Bill C-20 called for the government to conduct "consultations" with voters (essentially non-binding federal senate elections) before making senate appointments.  The Bill was rightly criticized for a number of practical and legal problems.

However, while some have accused him of stalling, and while he has made some questionable appointments himself, Harper's desire to see elected Senators seems to be genuine, and he has repeatedly extended the invitation to the Provinces to hold their own Senate elections, with the promise that he will appoint the winning candidates.  To date, only Alberta has taken him up on this invitation.

The latest approach being championed by the government is somewhat different.  Bill C-7 would limit Senators to one nine year term of office (a change that definitely requires a constitutional amendment).  It also sets out a framework for each province to hold its own senate elections, which would be administered by provincial officials.  In an interesting twist, it proposes that instead of being members of  federal political parties, Senators would be members of provincial parties.  Eric Grenier has pointed out this raises the bizarre spectre of having Parti Quebecois and Wildrose Alliance members in the federal Parliament.  While there some obvious political alignment between many of these parties, there is some question as to whether these parties could effectively work together in caucuses or not.

However, the proposal does have some appeal as well.  First, making Senators members of provincial parties creates an added degree of independence from the government, which, combined with the term limits, enables the Senate to act as a true chamber of sober second thought.  The Prime Minister will not be able to control Senators the way he has come to control MP's.  Second, it is arguably aligned with the other main purpose of the Senate, which is to provide a greater voice to the regions.  Third, it might be a practical way of getting more provincial governments on board with Senate reform.

To date, the NDP and Liberals, both federally and provincially, have generally resisted the Tories attempts at Senate reform.  The NDP prefer to abolish the Senate, while the Liberals seem to want to make it part of some larger constitutional reform.  Stephane Dion went as far as to suggest that of all the bills before the House, C-7 is "the most dangerous for the future of our country."

On a practical level, I have a hard time understanding why Liberal and NDP provincial governments in particular have been so reluctant to get on board with Harper's proposal to hold provincial Senate elections.  Had they accepted the invitation, the Tories would not have the stranglehold in the Senate that they currently enjoy, and some of the most controversial pieces of legislation, including the omnibus bills, would have been subjected to more legislative scrutiny.  Further, they could be running candidates who support either different reform proposals, or outright abolition, which would further the debate.

As Grenier suggests, with the greater variety of provincial parties involved, there is a risk the Senate could descend into dysfunctional chaos.  On the other hand, most of these parties have some affinity and common interest, and we might see some cross-party political collaboration and coalition-building, the likes of which we have not seen in Canada in some time.

The Bill also doesn't seem to mandate a particular electoral system, which opens the door to some debate on the appropriate voting system.  The STV system used to elect the Australian senate seems like a logical candidate.

Canadians are understandably wary of having Parliament descent into US-style gridlock, where an elected House and Senate often seem to be working at odds with each other.  However, the proposed reform is actually based more closely on the Australian Senate, which is generally seen to have served as an effective check and balance within their Parliamentary system.  Canada would need to turn its mind to rules that deal with any conflicts between the two Houses.

The Supreme Court will obviously have the final say on constitutionality, but in practice, the proposed legislation will likely work the same as the Tories fixed election date legislation: it will be politically enforced rather than legally enforced.  It ultimately depends on the provinces acting in good faith in holding the elections, and the Prime Minister acting in good faith in appointing the election winners to the Senate.  Nothing short of an actual constitutional amendment could create an elected Senate that doesn't depend on goodwill.  That being said, if we try the proposed system, and it works, perhaps it will pave the way to actual constitutional reform.  If it doesn't work, we can discard and try again with a different model.  One of the virtues of this approach is that the kinks can be worked out before it is constitutionally set in stone.

Ultimately, an elected Senate would have more political legitimacy and power than the current appointed model, and could act as an important check and balance on the currently unfettered powers of a Prime Minister.  The Senate could finally serve the purposes that it has been meant to serve all along: providing balanced regional representation and providing a true sober second thought on proposed legislation.  They say you can't teach an old dog new tricks, but there is no reason you can't breathe new life into an old institution.

Friday, January 18, 2013

Understanding Indian Reserves

The ongoing Idle no More campaign has thrust Aboriginal issues back into the spotlight in Canadian politics. Much of the public and media attention has focused on the Indian Act reserve system, and the role it is seen to play in many of the social and economic issues facing most First Nations in Canada.  Media have referred to Indian reserves as everything from "incubators of misery" to "tax-free havens"

Proposals have ranged from support for the Harper government's proposal to introduce private property rights on reserve, to abolishing the reserve system outright.  Yet much misinformation seems to surround the Indian reserve system and how it works, making it difficult to make sense of the debate. 

While it is hard to generalize, the truth is that most Indian reserves are neither third world enclaves nor a tax-exempt wonderland where people live well on the government dime.  They are communities, where people live, die, grow up and raise families.  They are often impoverished communities with grave social challenges, but for many Aboriginal Canadians, they are home.

In fact, Canada's Indian reserves are home to over 400,000 people, 98% of whom are status Indians.  The majority of status Indians reside on-reserve, although when including non-status Indians, the majority of First Nations people reside off-reserve.  Yet for many off-reserve First Nations people, the reserve is a place they often return to for events, ceremony, or to visit friends and family.  Reserve communities remain important to Aboriginal culture.  First Nations languages remain much more widely spoken on-reserve than they are off-reserve.

Collectively, Canada's 2600+ reserves make up over 26,000 square kilometres, or just over a quarter of one percent of Canada's land base, for an average size of about 10 square kilometres.  Unlike the United States, where most reserves are large, contiguous parts of land which often sustain their own internal economies, Canada's reserves tend to be small and fragmented, which creates its own economic and social challenges.

Some reserves are located on the sites of former villages or camps, or in the proximity of hunting grounds, burial grounds or sacred sites.  However, many were simply a result of programs of forced relocation or centralization: the most convenient or inexpensive piece of land the government could find to house Indians where they wouldn't interfere with non-Native settlement or resource development.  Indian reserves were meant to be a temporary expedient: it was generally felt that Indians would get an education, buy property, join the military, marry out, or pursue another path that would cause them to lose their Indian status and become fully assimilated members of Canadian society, and/or that they would simply cease to exist. 

Yet after so many generations, Indian reserves persist, and in many cases the location of these reserve communities has come to have some meaning to the people who live there.  And as time has passed, some reserves have also become economically attractive, although rarely by design.  Cities have grown and previously remote lands have become more valuable.  Resource projects have sprung up on or around reserve lands, providing opportunities for resource revenues or job creation.  Or land lost has been reclaimed through specific or comprehensive claims processes, sometimes in valuable locations.

Reserve communities face a variety of challenges.  Incomes are far lower than the Canadian average, and many reserves are plagued by social ills including alcoholism, drug use, and violence.  While the root causes of these issues are complex, some have called for the reserve system itself to be abolished, and for First Nations to be relocated to less remote locations to "start over".

This solution ignores many of the root causes of on-reserve poverty and social problems.   It also ignores the reality that while off-reserve First Nations people tend to fare somewhat better economically than on-reserve, they still generally do poorly compared to the Canadian population as a whole.  Many Natives leave the supposed poverty trap of reserve life only to find themselves in some of Canada's worst urban ghettoes.  Solving the social ills plaguing Canada's Aboriginal population is not simply a matter of relocating them to urban areas.

The Harper government's solution has been to push private property on-reserve.  Their view, which is shared by some conservative think-tanks, academics and First Nations leaders, is that creating private property rights will unlock economic potential and bring prosperity to reserve communities.

However, the fact is that that private property interests already exist, in one form or another, on many  reserves.  Bands have the ability to grant certificates of possession (CP's) which give band members the right to sole possession of a lot on reserve.  CP's can be sold, transferred or willed to other band members, and can be mortgaged.  CP holders can even lease their land to others.  The only appreciable way in which it differs from fee simple ownership is the fact that it can't be transferred to non-members.

Bands can also designate lands on-reserve for leasing to third parties, including non-Natives, usually by way of long-term lease, which can also be mortgaged.  A great deal of economic development on-reserve has been enabled by designation.  

One of the controversies with Bill C-45 is that it made the designation process easier by watering down the community approval process for designation.  In doing so, it eliminated many of the democratic safeguards that would require designation of land to have a reasonable degree of support in the community.  And while the details are still scant, the Harper government apparently plans to go further with private property rights on reserve, likely making it easier to transfer reserve lands to non-natives.

Much of the backlash of the Idle no More movement is directed at the agenda of privatization of reserve land.  The backlash is understandable.  While some First Nations have had success with designating land for leasing, this has generally been those reserves closest to urban areas.  This is not a panacea that is going to work for many remote or rural First Nations.

Further, given the existing small size of the reserve base, many First Nations struggle to find enough land to house their people.  They simply do not have available land to lease or to grant to private interests.  In addition, having endured government policy that resulted in the expropriation (often forced, often without compensation) of most of their land, First Nations are understandably reluctant to give up any remaining land.  Some First Nations have already lost control of their land base through the indiscriminate granting of CP's and leases as well, which makes them leery of creating more private property interests.  They are also familiar with the experience of the Dawes Act in the US, which broke up reserves and resulted in large transfers of land from Indian Tribes.

The privatization agenda also ignores another reality: in Canada, a significant amount of economic activity takes place on publicly-owned land.  Simply privatizing your land base does not open the road to prosperity.  In fact, those provinces with the highest percentage of private land (such as PEI, Nova Scotia and New Brunswick) tend to be the poorest, while many of those with highest amount of public land (Alberta, BC and Ontario) are generally the most prosperous.

This is not to say that private property is not important to economic development, nor is it entirely anathema to First Nations culture.  At the time of European contact, First Nations generally had sophisticated systems of land management that included a mix of rights and responsibilities vested in individuals, families and broader communities.  Like any land system, First Nations recognized a mix of community and individual rights.

The issue is more that the land base that First Nations control is already too small to allow for healthy and prosperous communities.  And further fragmentation of an already small land base is not going to address the problem, it will actually exacerbate it.  To succeed, First Nations need a larger land base, which can support an appropriate mix of private and public property.  In fact, this has already been done with some success through modern self-government agreements or land claims settlements such as those with the James Bay Cree, Nisga'a, and Tswassen First Nations.

Any solution to the problems facing the reserve system must take history into account.  Trying to create better social and economic opportunities is a vital objective.  However, the solution can't simply be another forced relocation or centralization program: any choice to relocate First Nations communities must be voluntary.  Further, any solution must take into account the cultural dimension: if there is anything that First Nations have proven after 500 years of contact, it is the resilience of their cultures.

The solution must also not result in further fragmentation and loss of the land base: if we want First Nations land to provide a base for prosperity, then they need an adequate land base, and an appropriate mix of publicly and privately owned land.  In my view, the best way to achieve these is and the related aims of improving governance and building viable communities and economies is to expedite the comprehensive and specific claims processes in order to restore more lands to First Nations control, while providing for governance mechanisms with the authority and functionality to manage the land successfully. With adequate land, revenues and governance tools, First Nations would be in a better position to build healthy prosperous communities, and can take their rightful place as full partners in Confederation.

Wednesday, January 2, 2013

Understanding Idle No More

While in Ottawa last week, I had the opportunity to visit Victoria Island, where Chief Theresa Spence is staging a hunger strike, requesting a meeting between Aboriginal leaders, Prime Minister Harper, the Governor General, and the Premier of Ontario, in order to discuss First Nations concerns regarding their treaty relationship with Canada and the Provinces.  Chief Spence is the Chief of Attawapiskat First Nation, a First Nations community in Northern Ontario that has faced more than its share of hardship, and which has become emblematic of the stark social and economic conditions facing most First Nations communities in Canada.

I did not meet Chief Spence, but I did meet some of her supporters.  I also snapped the following picture from the campsite, across the river, of the Peace Tower and the Parliament Buildings.  

Prime Minister Harper and Chief Spence could very likely see each other across the Ottawa river, yet the reality of their respective positions could not seem to be farther apart.

Chief Spence's hunger strike is just one face of the larger Idle No More movement, a campaign which has burst into the national spotlight over the past few weeks.   What started as a series of teach-ins in Saskatchewan has quickly grown into a national (and even international) protest movement, which has included marches, rallies, flash mob drum circles in shopping centres, and blockades.  Key to the campaign has been the use of social media (with the hashtag #idlenomore) to organize protest activities and to raise awareness.  The campaign has used their website to publish a manifesto and to issue calls to action.

The catalyst for the movement seems to have been the Harper government's recent omnibus budget Bill C-45.  While the bill raises democratic concerns for all Canadians (which I discussed in an earlier post), it contains some legislative changes which are of particular concern to First Nations, among others.

First, the Bill reduced the number of rivers and lakes protected under the Navigable Waters Protection Act,from 2.5 million to 159.  Coupled with changes to other environmental legislation in the previous omnibus budget Bill C-38, this threatens to seriously undermine the environmental protection of Canada's lakes and waterways.  First Nations are particularly concerned about the impact on the environment, and their treaty and Aboriginal rights to hunt and fish.

Second, C-45 makes further changes to the Fisheries Act, which was amended by Bill C-38. Of particular concern is the fact that the Act now defines "Aboriginal fisheries" as being "social and ceremonial" only.  Since Canadian courts have recognized that Aboriginal fisheries include commercial fishing rights, this is seen as a unilateral attempt to limit constitutionally protected Aboriginal fishing rights.

Third, the Act amended the Indian Act to make it easier for First Nations to designate or surrender portions of their reserve land to the Crown for leasing to outside interests.  While this was ostensibily to faciliate on-reserve economic development, it raises the risk that a poorly attended community meeting could result in a small number of band members approving a designation with potentially huge impacts.

However, First Nations are even more concerned that these changes seem to be part of a larger legislative agenda of the Harper government, one which is targeted specifically at First Nations.  The government has as many as 14 pieces of First Nations-specific legislation currently in various stages of the legislative process.  This includes legislation currently before Parliament, such as the First Nations Elections Act, the First Nations Accountability Act, a bill on Matrimonial Property Rights on reserve, and a bill proposing to amend and ultimately replace the Indian Act.  It also includes proposed legislation on private property rights on reserve and First Nations education.

The substantive concerns with this legislation vary, and will have to be addressed in future posts.  However, in each case, one overriding concern is that the government is making sweeping legislative changes affecting First Nations without proper consultation.

Canadian law requires the government to consult with First Nations when taking action which is likely to impact on the Aboriginal and Treaty rights of First Nations.   Yet most of this legislation, which does just that, has been or is being prepared with little or no consultation.  It is this larger, unilateral attempt to re-write Canada's laws on First Nations, without any meaningful discussion with First Nations people themselves, that has so angered the grassroots and inspired the Idle No More campaign.

There has been no shortage of criticism of the Idle No More movement from mainstream media, ranging from it "lacking detail" in its demands, to some media personalities essentially accusing Chief Spence of an act of terrorism for undertaking a hunger strike.Others have deflected the criticism by suggesting that First Nations leaders need to take more responsibility for the plight of their communities. 

That criticism seems reasonable on its face, but ignores a few basic facts.  First, it fails to address just how monumental the economic and social problems faced by First Nations are.  While these problems are beyond the scope of this post, they are largely a legacy of past (and even present) attempts to assimilate Aboriginal peoples, from the creation of the reserve system to residential schools and beyond.  Second, it ignores the fact that the federal government has essentially created a system in which Indian Act Chief and Council are primarily accountable to the bureaucrats at Indian Affairs, and not the communities they are supposed to represent. Further attempts at assimilation and more "accountability" to bureaucrats are not going to fix the problems they helped create in the first place.   These problems are going to require dialogue and co-operation between the treaty partners in order to solve.

More fundamentally, this criticism seems to have missed the point of the Idle No More movement.  The founders of the movement have actually taken steps to distance themselves from the Chiefs, and the movement seems to be as much a criticism of some leaders within Canada's First Nations as it is a criticism of government policy.  The sentiment seems to be that too many Aboriginal leaders have been idle in the face of government policy which erodes and undermines Aboriginal rights.

Idle No More will need to address the challenge faced by all grassroots protest movements: how to translate popular concerns and protest activity into meaningful changes and solutions which will actually improve the lives of First Nations citizens.  Idle No More will have to learn from the path of the Occupy Movement, another grassroots movement which sought to empower people, but ultimately seemed unable to translate legitimate concerns about a broken system into a meaningful programme of action, and as a result appears to have failed to achieve much in the way of lasting change.

In the meantime, regardless of the Idle no More movement's direction and demands, it is clear that one demand is not being met: the Governor General had made it clear he will not meet with the Chief, and from the Prime Minister's office, continued stony silence.