Canada's First Nations Governance Act is nothing of the sort

Editors Report
6/28/02

When the Royal Commission on Aboriginal Peoples presented its final report to Canada's House of Commons in November 1996, following five years of extensive and thorough consultations with both Native and non-Native constituencies, many believed that a new era of cooperation and respect was blossoming. Contents of the report revealed the Commission's honest and comprehensive understanding of the distinct histories of Canada's original self-governing peoples. It also moved to elevate the country's political discourse away from its paternalistic past toward a respectful future, one in which the Canadian government and its First Nations within worked "people to people" and "nation to nation."

The four Aboriginal and three non-Aboriginal commissioners delivered a document that was credible and worthy of its honorable intent. Its effort entailed some 178 days of public hearings, 96 direct community consultations, the commissioning of numerous research studies and the review of multiple past inquiries and reports. Even beyond the strength of its findings of First Nations' priorities, including 440 recommendations, the report carried with it the raw power of persistent truths too long suppressed and denied, expressed in clear and unambiguous language.

"The main policy direction, pursued for more than 150 years, first by colonial then by Canadian governments, has been wrong," stated the Royal Commission. "To bring about this fundamental change, Canadians need to understand that Aboriginal peoples are nations. That is, they are political and cultural groups with values and lifeways distinct from those of other Canadians."

The Commission addressed the consequences of Canada's Indian policies, such as the dispossession of Indian lands, the negation of governing powers and the loss of tribal self-respect. The report stated, "There can be no peace or harmony unless there is justice." Then Minister of Indian Affairs and Northern Development Ronald A. Irwin remarked, "The report should be viewed as a valuable tool for Aboriginal leaders, federal, provincial and municipal governments and educators ? all Canadians will be interested."

What a difference five and a half years can make. One can only wonder how so many good lessons were so quickly forgotten.

On June 14 the current Indian Affairs Minister Robert Nault presented to the House of Commons the anticipated First Nations Governance Act, Bill C-61, which although lauded by federal government officials, has met with immediate and vehement opposition from many tribal leaders across Canada, including Assembly of First Nations National Chief Matthew Coon Come, former National Chief Ovide Mercredi and Chief Roberta Jamieson, representing Six Nations of the Grand River, Canada's most populous Aboriginal territory. Whereas during the Royal Commission process, when the dialogue seemed somewhat aligned in purpose and acknowledgement of basic facts, the discourse surrounding the First Nations Governance Act reveals Canada's two vastly different worlds, growing ever farther apart.

"This legislation ... puts the power to handle community governance affairs where it belongs, in the hands of First Nations people themselves," said Minister Nault. "The governance initiative is not intended to replace existing treaties or self-government and treaty negotiations, but to provide First Nations communities with tools that would allow them to build self-sustaining communities."

Government communiqu?s praise the new act as empowering Aboriginal peoples through the right to vote on governance codes, the right to appeal election matters, to have access to information, and to provide Indian bands with clear legal authority to enter into contracts, to sue and be sued by having the same legal capacity and rights as a "natural person." This, it is stated, will provide First Nations with the provisions needed for effective and accountable governance and economic development. It has been mentioned repeatedly in public communications that the act will not adversely affect Aboriginal treaty rights.

The swift response by First Nations' leadership resulted in a protest rally in Ottawa the same day the legislation was tabled. For his part, standing on the steps of Parliament Hill, AFN Chief Coon Come promptly tore a copy of the Governance Act in two and tossed the pieces to the side. Calling the bill "Indian Act, Part II," he addressed several of the core problems that the tribes have with the First Nations Governance Act. "I believe that we as First Nations have a right, a right to self-determination, to determine our own political institutions, to establish our own political societies without the imposition of a foreign legislation called the Indian Act," he said. "Starting on the Indian Act, building upon a racist act, is totally unacceptable."

Mercredi criticized Canada for attempting to apply conditions upon First Nations that do not exist for its own governing institutions. "They're making it a legal requirement for our governments to give our financial statements to anybody in Canada who wants a copy of it, a requirement that they don't have for their governments ? municipal, provincial or national," he said.

Six Nations Chief Jamieson echoed Coon Come's refrain that the legislation amounted to nothing more than "Indian Act II" and described it as a reprise of colonialism. "I think it's as remarkable for what's in it, as for what's not in it," she said. "Some of the things that are gross omissions are any recognition of our rights in the constitution. You know since the time of treaties our people have been recognized as nations and then with the passage of the Indian Act there was much more of a colonial approach. Then we worked and worked ? and our ancestors worked ? through the century and in '82 we were successful in getting our rights recognized in Canada's modern constitution. That was a major victory. And now the minister would have us believe that that didn't happen."

This fear of atavism packaged as new Indian policy has these Native leaders alarmed and feeling more than just a little insulted. And it isn't difficult to understand why. The struggle of the more than 600 First Nations within Canada to achieve an honorable footing based on mutual recognition and respect has been daunting. It has been a long time since nation-to-nation co-operation based on mutual trade and shared political interest was the norm. In the early days international relations were widely formalized in treaties and ostensibly recognized in the Royal Proclamation of 1763 ? where the Crown reserved the exclusive right to negotiate land issues with the Indians because of "great Frauds and Abuses" by colonists. In Canada, the Proclamation forms the basis for understanding the historic and legal nature of the Indian treaty-making process and of the existence of Aboriginal land title. It portrays Indian nations as autonomous political entities, having their own governments empowered with their own decision-making authorities that were not to be "molested" or "disturbed" on their lands.

However, this early and more equitable reality gave way to policies of domination and assimilation. In 1857 the Province of Canada passed an act to "Encourage the Gradual Civilization of the Indian Tribes." It declared all Indians "of good character" to be non-Indians, who, while invited to join Canadian society, were encouraged to bring their portion of tribal lands with them. Later, the Constitution Act of 1867, negotiated without Aboriginal participation, unilaterally assigned "Indians, and Lands reserved for the Indians" to the authority of the newly formed Canadian government.

These and other laws were codified in the Indian Acts of 1876, 1880, 1884, 1985 and now the First Nations Governance Act of 2002, an instrument that primarily continues the modification of the original paternalistic legislation. Added to this 126 years of disappointment was a relatively recent attempt, in 1969, to terminate Indian treaties, repeal the Indian Act and abolish the Department of Indian Affairs and Northern Development as a means of eliminating Canada's trust responsibilities to its First Nations. This "Statement of the Government of Canada on Indian Policy" became known as the infamous "White Paper." It was a strategy designed by none other than Canada's Prime Minister Jean Chretien, who was then serving as the Minister of Indian Affairs under Prime Minister Pierre Trudeau. Recognizing it for what it was, the final solution to Canada's "Indian problem," Native peoples all across Canada rose in opposition and it was withdrawn in 1971.

Still today, with all-embracing and oppressive oversight, Canada's Indian Act comprehensively shapes, directs and determines the basic "local governance" powers and cost accounting functions of those 600-plus band councils. It has never really been seen by tribal leadership as a desired framework, but its replacement or modification at this stage must meet the highest standards and expectations of an educated and increasingly astute Aboriginal leadership seeking its restored sovereignty. And the First Nations Governance Act leaves much to be desired.

For example, although it has been mentioned repeatedly by government officials that the act will not adversely affect Aboriginal treaty rights, nowhere in the proposed act is there a non-derogation clause. It is feared that Jean Chretien may yet be able to accomplish what his White Paper failed to do without an unequivocal statement protecting treaty rights. Native leaders also remind Canadians of their own Constitution Act of 1982. In Part II, Rights of the Aboriginal Peoples of Canada, Section 35 (1) states "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed."

"We think in Section 35 ... that, de facto, included sovereignty," said Chief Jamieson. "That included the right to govern our own people. And so now, more than ever, I think our case is a stronger one in modern law. That is why we must oppose this because to accept it is really to take a giant step backwards."

One of those giant steps backward may well be Canada's intention to give First Nations the same legal standing as a "natural person." Although argued as a cause for economic development, so that tribes can enter into joint ventures with corporations or attract much needed investment capital from banks and venture capitalists, the change may also have the effect of eradicating tribal sovereign immunity ? the so-called legal "uncertainties" about which Minister Nault complains.

"Frankly, any of the things that he has in the bill, we do today, yesterday, on a daily basis here at Six Nations," said Jamieson. "He's giving us nothing new. The list of jurisdiction he puts out in the bill is less than that of a municipal government."

Jamieson is right. We encourage all Native peoples to read carefully Canada's Indian Act and the newly mutated First Nations Governance Act to understand how limited are the law-making powers assigned to Indian band councils. In every instance where the tribe is given a "local" law-making power, over such "major issues" as public nuisance, public works, waste management and the prohibition of alcohol, such laws remain subordinate to the Indian Act or any other act of Parliament. There exists no opportunity for government-to-government negotiation to resolve conflicting laws or interests. It has the virtual effect of making every First Nations law, even those over "local" fish, wildlife and natural resources, meaningless.

Further, as Jamieson explained, the implementation of the Act is to be done by the Governor in Council. That simply means the Prime Minister's Cabinet sitting on its own, behind closed doors, can pass motions to impose further things on Canada's Aboriginal communities. One doesn't even need an act of Parliament to significantly alter or eliminate Aboriginal rights.

The Act is also hailed by government officials as an interim step on the desired path toward self-government. However, tribal officials may want to take a harder look at that as well. The First Nations Governance Act omits four First Nations from inclusion because they either have or are negotiating final agreements on self-government. But at least three of the four, the Nisga'a Nation, the Sechelt Indian Band, and the Yukon First Nations, have all made concessions to federal and provincial taxation. This hardly constitutes an adequate expression of sovereignty.

We support the efforts by the Assembly of First Nations and the many tribes within Canada that are gearing up for yet another huge struggle in opposition to Canada's paternalistic legislative legacy. Legal challenges, based on several strategies are moving forward. These include Canada's offense of its own constitution in Section 35 (1), and offense of its own Charter of Rights and Freedoms, Section 25. The Charter stipulates that it "not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763."

That process, now moving ahead, will require the strong, collective strength of tribal leadership, backed by an informed citizenry, to either terminate the act or make the changes necessary to mitigate its potential harm and to keep Canada moving toward a more equitable relationship with its First Nations within. In addition to legal strategies, the door now opens to appeals to the Standing Committee on Aboriginal Affairs, the governmental body with the authority to recommend amendments to the bill.

From Six Nations, Chief Jamieson is emphatic in her opposition. "I won't work under this Act, I can tell you that," she said. Let us all hope that the good Chief is not out of a job anytime soon.

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