Tri-lateral-Is this INAC code for downloading?

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Indian Affairs Minister Andy Scott trotted out his new approach to dealing with Aboriginal issues in a press conference with the Aboriginal media on June 1. The buzzword of the day seemed to sum it up-tri-lateral.

"When you're talking about education or housing or economic development or health care, the reality is we're going to have to move beyond a bilateral relationship [involving only First Nations and the federal government] to a trilateral relationship with the provinces and territorial governments. And that's what we're doing," Scott told reporters.

It was the day following the federal cabinet's policy retreat with Aboriginal leaders where political accords were signed that frame the approach going forward on self-government issues.

A lot of the new policy work that is slated to begin under the terms of those accords will involve, as the minister pointed out, areas of provincial jurisdiction. Up until now, the federal government has provided services-or paid the provinces and territories to provide those services-to First Nation communities. This is because Canada's Constitution gives the federal government the responsibility for "Indians and lands reserved for Indians."

But services provided on-reserve are caught up in a confusing mesh of bureaucratic processes that are complicated by jurisdictional wrangling between the different levels of government. One of the main subjects of discussion during the cabinet retreat was that of "getting the federal house in order," taking stock of all the programs and services and who provides them, who funds them and how the processes can be streamlined and efficiency increased.

Some turf wars with long histories will have to be addressed for that process to work, however.

"Historically, there have been genuine differences of opinion between provincial and federal governments around whose responsibility certain things are," Scott said.

"Part of the problem, when we talk about these kind of things, is that the provinces are fearful that we're trying to cause them to pay for things that we currently pay for," he later added.

Although no specific funding was announced during, or after, the policy retreat, Scott claimed the federal government is prepared to spend enough money to persuade the provinces to let their guard down a bit.

"We announced last fall $700 million in heath care and the provinces were appreciative of that. But we'll be seeing investment in other areas of activity that would normally be considered provincial, I'm sure. And I think that's a step of good faith on our part to say, 'No, we're not doing this as a matter of saving money; we're doing this because we want the socioeconomic gap between First Nation, Inuit and Metis Canadians and the rest of Canada to shrink.' We believe that will require specific investments and we also think that will require a much more integrated approach, on most of these subjects, with the provinces. In the past when we've had those kinds of conversations we've tended toward getting caught up in jurisdiction. I think it's unfortunate because I don't think it's the provinces or the feds that end up suffering when that happens. I think it's the community itself."

Native leaders have long claimed the federal government never misses an opportunity to shrug off its legal obligations to First Nations people by finding a way to force the provinces to pick up the cost of a program or service. In mainstream circles it's called downloading or offloading.

Aboriginal rights advocates say it's called breaching a fiduciary duty.

"It is increasingly clear that the federal government's strategy is one of subsuming treaties and inherent Indigenous rights-and the whole idea of Indigenous nationhood-into a pan-Aboriginalist framework constructed and operationalized within the confines of the Canadian Constitution and Supreme Court definitions of 'Aboriginal rights,'" said Mohawk academic Dr. Taiaiake Alfred.

Alfred bases his political philosophy on the Haudenosaunee (Iroquoian) concept of the Two Row Wampum that says Indigenous nations and the colonial newcomers sail side by side in their own canoes. The relationship is of one sovereign nation to another Traditional leaders have always refused to deal with provincial governments, saying their relationship is with the federal Crown only. Alfred says the present Assembly of First Nations approach is to become virtually indistinguishable from the colonial state and that risks the complete loss of Indigenous identity. He also says that elected band council chiefs represent a system that was imposed on Indigenous peoples by force and that the band council system is really an arm of the federal government. That means the government is negotiating with itself in this new process.

Assembly of First Nations National Chief Phil Fontaine seems fully contented with the new trilateral approach. He has met with just about every provincial and territorial premier over the last two years and says the indications he's received is that "they're very interested in more collaborative, co-operative approaches with First Nations," he said.

Fontaine consistently states that Aboriginal and treaty rights are untouchable under his watch. But his critics say he is buying into the federal government's "needs based" approach rather than a "rights based" approach. They say that the considerable progress the national chief has achieved has been obtained by allowing the government to choose to provide services rather than admit it has a legal obligation to provide them.

Traditional leaders warn that once a provincial government has taken over control and responsibility for providing services any fiduciary obligation is extinguished since the treaties were negotiated with the federal Crown. Provinces, they say, can simply cut the services, claiming there is no legal obligation on their part to provide them. This way, they claim, the provinial government can claw back any gains made by leaders at the negotiating tables by cutting other funding.

Elected leaders say the hard line sovereigntist approach has led to more than a century of marginalization and suffering for their people and that a more pragmatic approach is required.