Episode #9: The 52nd Seat (TRANSCRIPT)

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Sandra: You're listening to “On the Record, Off Script”. And I’m your host, Sandra Hannebohm.

This week on Off Script we explore the stories of people who were not former MLAs. We explore what Mi’kmaq representation in the Nova Scotia legislature might look like.

Listen to the podcast here

Sandra: There has never been a Mi’kmaq MLA in Nova Scotia, despite the fact that a seat has been reserved for one in the House of Assembly Act since the early 1990’s.

The first question that comes up when we were doing our research was why it hasn’t been used, and it seems like there’s a bit of a story behind that. 

Dan Christmas: (laughs) “Yes you’re right. it was pretty clear that there was very little support for the idea from the Mi’kmaq side.”

 

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Sandra: Today, we ask three questions:

First: how did it come to be that the Mi'kmaq were given their own seat in the legislature?  

Second: why hasn't this seat ever been filled?

And lastly, how are the Mi'kmaq people we spoke to in this episode interested in engaging with their government - either through the legislature, or outside of it?

To understand the story you have to also understand that there’s a long backstory to the Mi'kmaq relationship with settlers. But for the purposes of this episode, we fast forward to the 1980s, to what Mi'kmaq Senator Dan Christmas called...

Christmas: "Probably the worst period in modern history, between the Mi’kmaq and the province.”

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Sandra: There were several events that made this a tense period between the Mi'kmaq and the provincial government, and both sides seemed interested in finding some way to work better alongside one another in the future. That's where our story begins.

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We start with Senator Dan Christmas, who is the first Mi’kmaq lawmaker in Canadian history...

 

Christmas: “That’s correct, there’s never been a Mi’kmaq person either in the House of Commons, or the Senate. And you’re right, there’s been no one in the House of Assembly of Nova Scotia.

It was just a bad time in the late 80s, and I often tell people that it was probably the worst period in modern history, between the Mi’kmaq and the province... There was nothing.”

Sandra: So, where did this idea come from?

Christmas: “At the time they were going through a report or recommendation from the Electoral Boundaries Commission. I think the idea first arose about dedicating a seat for the African Nova Scotian community and the Acadian population. I think by extrapolation they thought the Mi’kmaq should have a seat as well.”

Sandra: Every ten years electoral boundaries are redrawn to ensure the number of voters in each riding is similar. An independent electoral boundaries commission is established, based on terms set by the legislature, or one of their committees, and proposes what the electoral districts and boundaries for the province should look like for the next ten years.

When this exercise took place in the early 90s ‘protected ridings’ were created for African Nova Scotian and Acadian communities.

In protected ridings, the population was slightly smaller than the average riding, and the lines were drawn in such a way as to increase the likelihood that a member of the communities these ridings were meant to protect would be elected to the legislature.

For Mi’kmaq communities, the situation was a bit different.

An election was looming, and all parties seemed to want to do something about Mi’kmaq representation in the House. A committee of the house asked the electoral boundaries commission to consider adding one member to the House to represent the Mi’kmaq people of the province, and the motion was passed by the House unanimously.

The electoral boundaries commission followed the recommendation of the House and basically said  ‘Sure, add an Mi’kmaq seat but consult with the province’s Mi’kmaq communities about the terms of the seat before - and until - you fill it”.

It was the first time Nova Scotia would seeprotected ridings and the first time a Mi’kmaq seat would be included in the House of Assembly act.

The Chiefs were hesitant to accept the offer at the time, and didn’t really have a chance to decline it.

So why was the amendment for a reserved seat passed by unanimous vote within weeks?

The late Michael Baker seemed to have a quick answer when he was chairman of the Select Committee On Electoral Boundaries in 2001. He had no illusions about why the decision was rushed in 1991. There was a looming election.

He said…

“The point of the matter was that at that time they wanted to have these changes in advance of the election to follow. These changes are very difficult to make literally a month before an election. It was done in a manner that would allow for the changes to be, first of all, understood by the voting population and to have them in place for the next election.“

So 25 years went by, and the seat is still empty. We have not had any Mi’kmaq representation in the legislature.

One section with two subsections was added to the House of Assembly Act. The first, for a guaranteed Mi’kmaq seat. The second, to consult with Mi’kmaq leaders annually until they figure out how to fill the seat.

If you look at the first subsection alone, and then look at the composition of the House of Assembly over the last 25 years, it’d be easy to label that section of the act a failure.

But the second subsection - the one that guarantees that the province would consult annually with Mi’kmaq leaders - meant a great deal to the Mi’kmaq people we spoke with.

That second subsection - the afterthought - became an assurance that the legislature would meet with Mi’kmaq Chiefs every year, and they have for the last 25 years.

Christmas: “There’s three formal processes in place now, and you have to remember that back when this seat was proposed by the legislature, there was nothing.”

Sandra: But that first subsection remained an open invitation, and though the Chiefs have met with the Province every year since, after 1994 the reserved seat stopped being a focus.

So...

Section six of the House of Assembly act was passed rather quickly, before an election.

It was done on an assumption: that Mi’kmaq people were interested in being represented in the legislature, without formally consulting with Mi’kmaq Chiefs.

The legislature passed that amendment unanimously, presumably because the thinking behind the assumption was shared by all members of the house.

But the Mi’kmaq people - as represented by the Chiefs at the time - didn’t share MLAs enthusiasm for taking a seat in the legislature.

Christmas: “Once that proposal was tabled, seeing how far reaching the proposal was, I think a lot of Mi'kmaq people just disengaged from the idea… because they weren't ready to really discuss that concept at that point in time.”

Sandra:  I also spoke with Jaime Battiste, who is a treaty educator, and has spoken to some of the Chiefs that would have been around the table at that time.

He told us that, the Chief’s had good reason to hesitate on accepting the offer.

Battiste: “Within the discussion, there was a seat offered to the Mi’kmaq, however the Mi’kmaq felt at the time that it was only being used as a token seat, that the government’s intention at the time  in creating the seat wouldn’t add to any increased dialogue between the Mi’kmaq and the province...

Each community has it’s own diverse dynamic, and the biggest signal/symbol is that when they talk as a group they get more done, and when they delegate that responsibility to one individual - how can one individual represent all of the Mi’kmaq voices of NS - was more problematic than trying to move forward as a collective, negotiating and discussing things as they are today…

They felt that their concerns would be better relayed as a group of Chiefs, rather than one individual selected by whatever means.

The thing is that Mi’kmaq rights are constitutional in nature, so we have constitutional rights and a constitutional relationship that we didn’t feel was served best by a seat at the table. Our original Treaties were signed with the British Crown, not a province. So we have a unique relationship within NS, within Canada.”

Sandra: Even if the seat were to be filled, it’s unclear how that seat would be filled.

Christmas: “Yes. That’s another big question - if it got to the point of saying that they wanted to have a seat in the legislature. The second big question is how do you go about selecting that individual? And I think the second question is just as much open for debate as the first one.”

Sandra: One case-study of how indigenous representation might look in our legislature comes from the state-legislature in Maine.

More on that in a moment...

 

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Okay! Back to the podcast.

 

Sandra: Senator Christmas said the idea of a guaranteed indigenous seat started with the legislature, but the idea isn’t unique to Nova Scotia…

Since the 1800s, non-voting indigenous members sat in the legislature of the State of Maine. In the early 90s it seemed like a pretty positive example of the unique relationship that can form between colonial institutions and the indigenous, but  Maine’s story with the Passamaquoddy and Penobscot tribes didn’t end with the addition of a few seats in the legislature.

Christmas: “This idea in Nova Scotia was actually borrowed from what happened in Maine.”

Sandra: “And it worked out in Maine?”

Christmas: “Not quite (laughs) A couple years ago the representatives withdrew from the Maine legislature in protest of some policies by the government.”

 

Sandra: The relationship didn’t end, but it changed a lot.

Actually, it changed into something that looks a lot like like the relationship between Mi’kmaq and our province.

In 2015, Passamaquoddy and Penobscot delegates walked out of the state legislature in Maine, in protest of a lack of respect for tribal sovereignty from the government. Their seats have been empty since.

A year later, the Penobscot tribe officially withdrew their seat, hoping to switch from a non-voting state representative model, to a “government relations ambassador.”

Not unlike the diplomatic relationship that Mi’kmaq Chiefs in Nova Scotia have with the provincial and federal government.

One of the representatives who walked out, Wayne Mitchell, said his tribe wanted officials chosen to work with the state and -quote- consider themselves to be ambassadors of a separate and equal nation, not as nonvoting members of the Legislature. -unquote -

The relationship between tribes in Maine and the state government soured over a long period leading up to the 2015 walk-out, but the last straw was when Gov. Paul LePage took back an executive order the described the state’s obligation to consult tribes on matters that affect them.

That was Maine’s experience. According to Senator Dan Christmas, the model used in Maine inspired the model proposed in Nova Scotia in the early 1990s.

 

Christmas: “The original intent in 1988 and 1989 was simply to have a member in the legislature who was nonpartisan, non-voting, would simply participate in all of the work at the legislature, but to be a voice when they saw the legislation coming through that may infringe upon aboriginal treaties, land or resources. There was a voice directly in the chamber to address any issues that arise in the legislature. It was more of a watchdog to make sure that there were no errors that would impact Mi’kmaq land, resources or Treaties.

The question then is whether or not the existing processes we have -  are those issues now adequately addressed by those processes rather than having a seat in the Nova Scotia House of Assembly?

Those are all great questions and I think they need to be addressed. I just don’t know, from sitting in my chair, how that would play out.”

 

Sandra: Here’s how it plays out now...

Reserves govern through a band system. Each community, sometimes including more than one reserve, elects a Chief through a band election.

Deborah Robinson is Chief for the Acadia First Nation.

Robinson: “I’m elected to office. Mine would be Acadia First Nation and that is the South Shore. I have five reserves within the Acadia First Nation, and I’ve held the position of Chief there since 1987, so it’ll be thirty years in two weeks...

My portfolio is governance for the Mi’kmaq chiefs of NS and we have been aware of this seat and had discussions over the past few years. But the priority really in governance has focused on building our own governance structure. This is something we establish at the Assembly of Nova Scotia Mi’kmaq Chiefs, and that’s why we have the portfolio system, of which mine is governance. You’re familiar with the Made in Nova Scotia process?"

Sandra: I wasn’t.

The Made-in-Nova Scotia Process is the forum for Mi’kmaq, and governments of Nova Scotia and Canada to resolve issues related to Mi’kmaq treaty rights, including governance.

 

Christmas: “So rather than always resorting to litigation, the three parties formed a negotiation table. Shortly afterwards, they formed a consultation table, so major projects in the province that needed consultation with the mi’kmaq - both the federal or provincial government can go through that table.”

Robinson: “These are documents that have been developed in the last 15 years, and they formally have provided us with a voice on what happens here in NS. We talked about the establishment of our own governance structure, Mi’kmaq. And we meet with the provincial government here in Nova Scotia.

Although we don't have the seat doesn’t mean that it isn’t something the assembly would reconsider. I think it’ll continue to be something on the agenda as an item for discussion.”

Sandra: For the seat to be filled, Jaime Battiste said the Chiefs would have to be convinced of two things...

Battiste: “You would have to convince the Chiefs as well as the Mi’kmaq Grand Council that their efforts would be best served by a provincial representative. The biggest thing is that there would be no drop in communication between the current provincial government and the Chiefs just because an extra was created for an individual.

And the representative has no power over funding, legislation, they can say their piece but the constitutional nature of the Mi’kmaq basically says that as Mi’kmaq, our aboriginal treaty rights supersede provincial laws.”

Sandra: According to Jaime, the Mi’kmaq chiefs weren’t convinced that a seat in the legislature reflected the important nature of the treaty relationship between Mi’kmaqand the crown.

Battiste: “They didn’t feel that was representative of the Treaties and agreements made that guide the relationship between the Crown and the Mi’kmaq.

They weren’t thrilled with the notion of a single, token spot within the provincial government. So why would they settle for anything less than the constitutional relationship that’s promised within the treaties?”

Sandra: But, would placing a Mi’kmaq representative in the legislature really put this relationship at risk?

The House of Assembly act says that the Premier must meet annually with representatives of the Mi’kmaq people “until the additional member” is added to the legislature.  But there’s no guarantee that consultations with Chiefs would continue if the seat was to be filled.

So would the that relationship end if the Mi’kmaq were to decide to fill that seat?

That part is not entirely clear.

Mi’kmaq candidates have run in provincial elections but haven't won seats in the legislature.

Trevor Sanipass is the most recent of those people. Trevor is originally from Eskasoni, and he ran in the the May 2017 election as the NDP candidate for Waverley-Fall River-Beaver Bank.

He was unsuccessful in his bid for MLA.

Sanipass described leadership in Mi’kmaq communities as strong. He helped a family member campaign in a band election in Eskasoni and when it came to his own entry into politics, he felt like he could better serve in a different setting.

He offered his candidacy to another community in need of representation - a provincial riding.

He saw his role more as a candidate for the riding he campaigned in, than a representative of the Mi’kmaq communities.

Sanipass: “Even though I am running, I’m hoping to win on my own accord.

When I meet people, I introduce myself of course, but I don’t really say that ‘if elected, I’ll be the first aboriginal or Mi’kmaq MLA in Nova Scotia history’ - unless they ask.

Sometimes I bring some of my teachings along with me when knocking on doors.”

Sandra: He was clear that as an MLA, he would be representing the constituents of his riding as the first Mi’kmaq MLA.

That would have made history, but he was the one person I spoke with who felt that something should be done with the seat reserved for the Mi’kmaq.

Sanipass: “I’m interested in what’s gonna happen in that seat. We do need representation in the legislature.That seat should be filled regardless.”

Battiste: “I think if Trevor’s elected, I wish him all the best by his constituents in his region. That reflects well on him and his party’s views at the time. However, when you’re affiliated with a party, I don’t think you can serve for the Mi’kmaq. I think the same discussion came up last election when John-Frank Toney ran out of Eskasoni. There still was a feeling that ‘yes the community was behind him’. But there’s a difference between representing a riding that doesn’t have a constitutional relationship and representing a people or a nation that has a constitutional relationship and constitutional rights entrenched within the canadian constitution. So it’s a very unique and different relationship.”

Sandra: Trevor Sanipass agreed - representing a riding and representing a nation are two very different things.

Tune in for next week’s special episode to hear more about Trevor’s story…

Whether the seat is filled, or not, one thing is clear from the Mi’kmaq representatives we spoke with - the relationship between the Mi’kmaq and the province is dramatically different than what it was when that space was created.

Christmas: “Back in the late 80s, which is almost 30 years now, the relationship between the province and the Mi’kmaq of Nova Scotia has really dramatically evolved. For instance, shortly after the Marshal Inquiry the government formed what’s called the Tripartite Forum, which was a recommendation of the Marshall Inquiry. And since ‘91 the Tripartite Forum has existed…

So that’s really been a forum of discussion between the three levels of government. “

Sandra: That’s the governments of the Mi’kmaq, Nova Scotia and Canada.

Christmas: “There’s three formal processes in place now, and you have to remember that back when this seat was proposed by the legislature, there was nothing. And now we have processes where the Mi’kmaq routinely engage the province on matters that are important.

Be it programs and services like the Tripartite Forum, be it title and rights like the negotiation table or be it major projects through the consultation table. So those three tables exist.”

Robinson: “Last fall we had our annual joint meeting of the Assembly of NS Mi’kmaq Chiefs and the NS executive cabinet.

At this meeting, the Chief and the Premier and the cabinet ministers, we come together to discuss issues of priority for the Mi’kmaw.

So it’s something that is probably still going to be talked about, but at this point in time it hasn’t been filled it doesn’t mean that there hasn’t been any voice for the Mi’kmaq. Because here has, within the province’s political structure.”

Christmas: “The most wonderful thing about that is that the province regularly meets with all the Chiefs in the province. And it has become such a tradition that this past year, when we had a Heritage Day in Nova Scotia the celebration was that representatives of the provincial government had a hockey game with the members of the Mi’kmaq leadership. They had one game in Membertou and one game in Millbrook, in Truro.

I thing that’s a symbol of how things have evolved and changed. You know, back in the late 80s the relationship was so disruptive and so difficult. Today, political leaders from both the Mi’kmaq and provincial side can call themselves friends have some friendly competition. It astounds me how much the relationship has evolved...

Given that there’s a very cooperative political climate between the province and the Mi’kmaq, maybe today is the right time to talk about an extra seat in the House that’s non partisan and non-voting, to represent the Mi’kmaq interest. Maybe the time is right.”

 

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Sandra: Last week on OffScript we mentioned that neither Mark, nor I have Mi’kmaq heritage.

We could be about as naively well-intentioned as the legislature was, but it’s been over two decades since a space was created for a Mi’kmaq representative in the House of Assembly, and more than one of our interviewees indicated they’d be open to revisiting the topic of whether that space should be filled.

Is now the right time?

That’s for elected Mi’kmaq Chiefs and the Grand Council to discuss with their communities...

 

Thanks for listening to this episode of the Off Script podcast. Next time….

This episode was written by me, Sandra Hannebohm… It was edited and produced by Mark Coffin. The theme music is by Josh Spacek at Needledrop-dot-co and all of the other music came from Kevin MacLeod at Incompetech.

Tune in next week for a special episode, and in another two weeks for a standard full episode.

 

Off Script is produced by Springtide, a registered charity working to make democracy better here in Nova Scotia. Follow us on Twitter, @SpringtideCO.

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