The Penner Report

Background

Over the decade following the issuing of the federal White Paper on Indian Policy in 1969 (see The White Paper, 1969), there was increasing interest in the concept of Indigenous self-government. There was also a greater recognition of Indigenous rights. This became increasingly so as work began on patriating the Canadian constitution (see Constitution Act, 1982). There were a series of First Ministers Conferences focusing on Indigenous issues between March 1983 and March 1987.

A Special Committee of the House of Commons on Indian Self-Government was established in 1982. It was chaired by Cochrane-Superior MP Keith Penner. The cross-party committee consisted of seven MPs. It also included one representative each from the Assembly of First Nations, Native Council of Canada and the Native Women’s Association of Canada. The committee’s mandate was to focus on status Indians, leaving out Inuit and Métis. The committee held a total of 60 public meetings. Additionally, they consulted with government officials and Indigenous organizations from the United States.

Recommendations of the Report

The Committee recommended the right of First Nations (see Indian) self-government be entrenched in the Canadian constitution. This would be done via amendments to be created as soon as possible. They did not view simply changing the Indian Act as a means of achieving self-governance. It was too outdated in its structure and policies to use as a blueprint. A new department would manage and coordinate federal-First Nations intergovernmental relations.

The report suggested three legislative measures. The first measure involved enacting an “Indian First Nations Recognition Act.” This would ensure accountability from all sides. It would also act as interim recognition of First Nations governments. Secondly, a measure would provide authorization for the federal government to enter into agreements with recognized First Nations governments over jurisdiction. Finally, a measure would create legislation to ensure that provincial laws would not apply on First Nations’ land unless First Nations governments agreed to allow them.

The report also recommended individual bands be allowed to determine their membership beyond the requirements made in the Indian Act. They would also decide if they would declare themselves as a First Nations government on their own. They could also join with other bands to form larger Indigenous governments. The federal government was urged to continue supporting all status Indians regardless of First Nation affiliation.

Negotiation was necessary to determine the scope of jurisdiction. The report recommended that First Nations should have legislative authority over important areas. They recommended First Nations have authority over cultural and social development, education, family relations, use of land and resources, raising revenue, economic and commercial development, and law enforcement. The committee suggested the establishment of a special tribunal. It would address agreements between First Nations and other levels of government.

The committee felt that economic development could be improved. They believed settling claims and First Nations having control over resources on their lands would contribute to this. Also, the federal government needed to provide substantial funding. This funding would help build a strong economic base and address community infrastructure issues. Additionally, the government would need to create a special development bank. This would come from an existing $345 million Native Economic Development Fund.

The committee made recommendations on fiscal arrangements. They viewed direct federal grants as the ideal method of supporting the new First Nation governments. The grants would be similar to provincial transfer payments. They were also a way of promoting accountability. Existing revenue trust funds would be transferred directly from the federal government to each First Nation. Capital trust funds would be transferred to trust management systems designated by each First Nation. Once the funds were transferred, the Minister of Indian Affairs and Northern Development (see Federal Departments of Indigenous and Northern Affairs) would be released from managing them.

The committee argued First Nations deserved full rights to areas that were classified as reserves. An official registry would be established to hold records of land under First Nations control. Indigenous peoples called for recognition of treaty and title rights (see Aboriginal Title) to traditional hunting and trapping grounds. From the committee’s perspective, each First Nation should have a full share of resource revenues.

On land, the committee suggested outstanding land claim negotiations involve a neutral party to facilitate. A quasi-judicial process should also be available if agreement could not be reached. Treaties made prior to Confederation should be recognized and not superseded by later laws.

The committee recommended ways to protect the interests of First Nations. They suggested the establishment of a Minister of State for Indian First Nation Relations. This office would protect them against encroachment from other governments or interests. They recommended funding for an advocacy office. It would be created and run by First Nations to represent First Nations interests in legal proceedings involving their rights. Finally, an independent officer would report to the federal government on official actions affecting First Nations.

The report’s final conclusions began with a strong recommendation. It suggested phasing out the First Nations side of the Department of Indian Affairs and Northern Development within five years. First Nations self-government was considered critical. However, the committee felt special representation in Parliament might offer benefits in the future. They felt the best means of “satisfying international standards” in relation to First Nations was to implement the report’s recommendations in their entirety.

Reaction and Aftermath

The report was leaked to the press in November 1983. It was described by the Globe and Mail as “a radical blueprint.” Penner believed that receiving approval for the report’s recommendations from the public and government would be difficult. Initial reaction from Indigenous communities was generally positive. Many Indigenous leaders supported scrapping the Indian Act. They also supported removing the federal department overseeing them.

“Taken at its face value,” an editorial in the Regina Leader-Post observed, “the Commons report represents a new dimension for cross-cultural relationships and shows faith in native preparedness for self-government. It might even offer a few solutions to some old problems. It bears study—and perhaps a chance.”

On 27 June 1984, Bill C-52, An Act relating to Self-Government for Indian Nations, was introduced in the House of Commons. It addressed some of the concerns raised by the Penner Report. It received first reading (see Parliamentary Procedure). However, it died with the dissolving of parliament for the 1984 federal election. The report was shelved. The new Progressive Conservative (see Conservative Party) government under Brian Mulroney favoured more integrationist approaches.