Cabinet memo reveals plan

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A leaked copy of the Department of Indian and Northern Affairs Canada's (INAC) memorandum to Cabinet on the First Nations governance legislation shows that the department planned an intensive media campaign to control public discourse on the act and keep its own agenda front and centre.

The memorandum to Cabinet, or MC as it's known in government circles, is usually not made public. There are two types of documents that government departments usually send to Cabinet-an aide memoire, which provides information to the ministers but does not require a decision, and an MC, which requires a yes or no decision.

The document in question laid out Indian Affairs' plans for the legislation and its communications plans to ensure the bill would be successfully passed into law.

INAC sources who were questioned about the contents of the MC said the department has a policy of not commenting on leaked documents. But no one suggested the document in our possession was not authentic.

Departmental sources confirmed the existence of a "quick response team" that analyzes reports in all media outlets across the country, ready to respond to negative stories.

Part of the MC that informed the Cabinet members of the details of the communications plan stated that "errors of fact . . . will be promptly addressed."

But a recent letter to Windspeaker from the minister of Indian Affairs, delivered as part of this communications strategy, seemed more intent on countering a dissenting point of view than on correcting a factual error. In response to a story detailing how an academic disagreed with the approach employed in the First Nations Fiscal and Statistical Management act, the minister wrote that this publication should not publish criticisms of the act until it had published a detailed story about what was in the act.

A year earlier, the Indian Taxation Advisory Board, the body that designed the bill, asked permission to re-print a Windspeaker story about the proposed act because it was a detailed account of what would be in the legislation. It seems unlikely the minister or his quick response team were unaware of this.

There are other interesting facts in the MC.

Under the heading "rationale" Cabinet was told that the Throne Speech commitment to "strengthening governance, including implementing more effective and transparent administrative practices" would be met by the proposed bill.

"The strengthening of accountability of First Nation governments to their communities, with standards comparable to other local governments, including more local decision making and clarity of authorities, will also underpin a more modern government to government relationship between the federal government and First Nations," the memo reads.

First Nations are concerned that their status in the federal system will be reduced to that of municipalities as a result of the act. The reference to local governments will not be well received, even though the memo explicitly states that it is not the government's goal to turn First Nations into municipalities.

First Nation leaders have also suggested that the government has taken money from programs to pay for this legislative process. Some have even gone so far as to say the money cut from several First Nation political organizations has been re-directed to promoting the governance agenda. One passage in the MC could add fuel to that particular fire.

"IAND's funding for this initiative will be resourced from its A-base and therefore no new funding is being requested," it reads.

The department's "A-base" is its total $5.2 billion budget. Ontario Vice-Chief Charles Fox doesn't believe the INAC numbers regarding spending on the governance initiative. He said he's heard there are 18 teams just in Ontario standing ready to deliver a presentation on the benefits of the government's plan.

The minister has said he received $10 million in new money from Treasury Board for the governance process. The minister's irector of communications, Alistair Mullin, while emphasizing that he was commenting only with respect to our general questions and not specifically about the document, said that the $10 million was for the consultation phase. A budget of $1.3 million for the legislative phase came out of existing funding from the INAC communications branch, he added.

He said fears that vital programs would go unfunded so that INAC could promote its legislative agenda were unfounded.

"The policy at DIAND has consistently been that when we have re-allocated, is not to re-allocate out of priority areas or service delivery areas. First Nations have a built-in protection there with respect to the fact that most of the funding is governed through contribution agreements, through treaty and we have a fiduciary obligation. There's not a lot of room for the government to maneuver on that," he said.

A section of the MC labeled "analysis" concedes some First Nations will challenge the bill in court on the basis that rights protected under section 35 of the Canadian Constitution are being infringed.

"If such challenges are filed, the Crown will want to argue in court that the infringement is justified in order to save the constitutionality of the legislation and continue to make it universally applicable," the memo states.

Does that mean the minister admits the bill infringes section 35 rights, Windspeaker asked.

Mullin said standard practice in preparing an MC is to look at all possible scenarios.

He said the department would seek to argue that it doesn't infringe but have a back-up argument, which is allowable at law, that if it does infringe then the infringement is legally justified. He insisted such a strategy is not an admission of anything.