Governance Legislation Raises Firestorm of Opposition

By Lloyd Dolha

Despite threats of court action and a massive demonstration on the front steps of parliament, INAC minister Robert Nault will place his hotly disputed First Nations Governance Initiative (FNGI) before the House in the first week of June 2002, updating the 126 year-old Indian Act in a major legislative overhaul.

On May 22/23rd more than 400 delegates, including some 200 chiefs met in a special AFN assembly to map out an action plan against the Nault-led FNGI agenda.

“We’re in a situation that can’t wait. If you’re standing on the deck of the Titanic, saying you’re not going under because you have a treaty, or you are at the negotiating table, or that you’re rights are protected by the Constitution, be prepared for a pretty cold bath,” Ontario Chief Roberta Jamieson told the cheering delegates.

First Nations leaders asserted their right to self-determination that is guaranteed by international law and the Canadian constitution. They condemned the FNGI as a “unilateral attempt to undermine the inherent right to self government of First Nations Governments.” A national representative committee has been mandated to implement their action plan immediately.

In his speech to the delegates, AFN National Chief Matthew Coon Come said the proposed legislation will restrict aboriginal and treaty rights by placing those rights under the control of the Indian Act administrative framework.

“If those rights are not defined, they are at risk and any perceived abrogation or derogation will lead to more court battles. Our rights of leadership selection could also be affected. Legislation could infringe on our right to self-government by trying to tell us how and when we can and cannot elect our own leaders.

This will be the first piece of post-1982 legislation attempting to define Section 35,” said Coon Come.

AFN Objectives
The AFN action plan is based on the test laid out in Sparrow and clarified in Badger. The test has three basic components. These are :

  • any initiative that alters aboriginal rights must have a clear objective;
  • the duty to consult (which has expanded significantly in recent case law);
  • and any infringement on aboriginal rights must be at a minimal.

Coon Come said that the governance initiative failed on all three counts, especially the duty to consult and the fact that any infringement on aboriginal rights must be minimal.

Earlier in his speech he pointed out that the Manitoba Chiefs banded together to completely block the community consultations. He told the delegates that “the consultations were a sham. More of a public relations exercise than an attempt to gather real input from our people.”

According to the AFN estimates, participation at the community consultations conducted last summer was at best three per cent or at worst one per cent for the ten million dollar exercise.

The people who did participate were concerned about a lack of information, that they couldn’t give an informed comment on such technical subject matter. People wanted to talk about issues such as housing, land, treaties and aboriginal rights.

According to the AFN analysis, the FNGI legislation deals strictly with: financial accountability; powers and authorities; elections and leadership; and, legal standing and capacity.

“One thing is clear: participation does not mean support. It does not mean consent,” said Coon Come.

Change at all levels
The AFN action plan sets out four streams of change:

  • nation rebuilding;
  • redistribution of lands and resources;
  • treaty implementation;
  • and, new fiscal arrangements.

The plan will identify activities at the local, regional and national level to bring about change in each of these areas.

Activities will focus around: capacity building; institutional change; increasing First Nations’ participation in the Canadian economy; and, meeting urgent needs.

The National Chief urged the federal government to show some good faith by “dusting off” the Royal Commission on Aboriginal Peoples (RCAP) final report and working with the AFN to implement its recommendations.

“The lives of our people will not substantially improve unless we build on the key elements of the RCAP report,” he said.

The AFN told the Standing Committee on Aboriginal Affairs in early February that the government should seriously consider two recommendations from the RCAP report as a starting point.

The recommendations are to convene a meeting between First Ministers and First Nations to review RCAP and establish a Canada-wide framework agreement for its implementation.

The second recommendation calls on Canada to establish an Aboriginal Peoples’ Review Commission to monitor the progress of implementation.

In his speech to the Standing Committee of May 9th, Minister Nault cited a recent Ekos public opinion poll that found that aboriginal people on reserve are optimistic about their futures, their children’s futures and their communities.

The survey, the first of its kind ever undertaken by the Canadian government, also found that First Nations people link good governance with improved social and economic development in their communities.

A majority agreed that strengthening the responsibility of First Nations leaders to their citizens would improve conditions on reserve. An even larger majority at 88 per cent believe the Indian Act needs to be changed or replaced and most respondents want a direct voice in those changes.

Survery results
Conducted in August 2001, 1427 First Nations people on reserve from every province in Canada were surveyed by the Ottawa-based Ekos Research Associates and its results were made public in an INAC press release on October 30, 2001, that went virtually unnoticed by the mainstream and aboriginal media.

“First Nations people told us that they want government to focus on day-to-day issues like education and health care, and particularly those which affect their children. They also make a clear link between good governance and improving social conditions,” said Nault.

Nault pointed out that at a recent joint press conference, Ontario Chief Joe Muskokomon said the following about the Indian Act.

“It does not put the First Nations and the First Nations communities accountable to their own people. But more accountable to the government of Canada and, in particular to the Department of Indian Affairs,” he said.

He called it paternalistic at worst and outdated at best.

Outspoken grassroots leader Ed Gladstone in a letter to the editor in The Province in late May said the rhetoric from Chief Matthew Coon Come regarding revisions to the Indian Act is a “rant coming from those who elected him, not from grassroots natives.”

“The rights of the chiefs come before the rights of the rest of us. To have accountability would put a thorn in their ‘lottery,’ sometimes called band funds. Federal money for the future of our economic growth has been put in the hands of irresponsible people. The lavish lifestyles afforded these privileged few is an affront to taxpayers and to those who are supposed to receive the benefits. Native bands failing to meet accountability deadlines do not blame spending by leaders, instead they blame band administrators. This is sad because a band administrator with years of university education must endure tirades and rants by chiefs with huge ego problems and less than grade-school education. With the advent of accountability, we hope to see the qualifications for these positions rise,” wrote Gladstone.

Remember Nault angered the male-dominated First Nations leadership last spring when he went straight to the grass roots communities, going over the heads of chiefs, regional and national organizations, holding more than 450 consultation sessions in more than 200 First Nations communities.

Overhaul of Act
And Nault’s plan to overhaul the Indian Act is sweeping in scope. The First Nations Land Management Act was recently opened up to other First Nations. Four new institutions are planned to strengthen the fiscal capacity of First Nations.

These are:

  • a First Nations Tax Commission to provide alternative sources of revenue;
  • a First Nations Finance Authority to clarify borrowing authority;
  • a First Nations Management Board to provide independent accounting and other services;
  • and a First Nations Statistical Institute to provide reliable data on things like population and economic growth.

Nault has called the 126 year-old Indian Act an “embarrassment” and later hinted that over a billion dollars in Indian trust accounts could be turned over to First Nations after his FNGI is passed in the fall.

And not all aboriginal groups are opposed to the FNGI.

The Congress of Aboriginal Peoples (CAP), representing over 800,000 off-reserve aboriginal people of Canada’s 1.1 million aboriginals were involved in the consultations from its start in April, 2001. CAP was also involved in the Joint Ministerial Advisory Committee (JMAC) that met to advise the minister on governance amendments to the Indian Act.

Nault’s FNGI agenda has three phases: the pre-legislative consultation phase; the post-consultation drafting of a parliamentary committee phase; and, the regulatory phase.

Throughout the consultation phase, one issue dominated the off-reserve peoples’ discussions. They want the archaic act replaced by a more comprehensive and inclusive Aboriginal Peoples’ Act.

CAP wants to see legislation that reflects the reality that, in Canada today, more than 73 per cent of all aboriginal peoples live off Indian Act reserves and do not receive any benefits from the provisions of the act.

Alternative principles
The guiding principles for an Aboriginal Peoples Act should be:

  • that all aboriginal peoples have the inherent right to self-government, self-determination and their treaty rights, independent of the Indian Act ;
  • and, that all aboriginal peoples retain their rights regardless of residency or status.

In their final report on the phase one consultations, submitted in February, 2002, CAP points out that off-reserve participants frequently expressed their concerns about the FNGI.

“A fundamental problem with the First Nations Governance Initiative is the federal assumption that the Indian Act can be rehabilitated in an interim partial way. The Congress of Aboriginal Peoples feels strongly that this approach is likely to compound existing inequities in, and flowing from the Act. A piece-meal approach is likely to simply replace some old policy problems and rights violations with new policy problems and rights violations. The 1985 amendments (Bill C-31) to the Indian Act are an example of this,” states the CAP report.

CAP constituents participating in the consultations frequently expressed their objection to a legislative exercise not aimed at addressing fundamental inequities and rights violations flowing from the Indian Act in terms of identity issues such as: Indian status and band membership entitlement; recognition of aboriginal peoples governments; and, aboriginal peoples off-reserve organizations and aboriginal women┬╣s issues.

Many spoke of the many forms of discrimination flowing from the Indian Act and the discrimination experienced by off-reserve aboriginal people, and people reinstated under the 1985 amendments under Bill C-31, especially women and children as well as discrimination flowing from decisions and actions of band councils elected under the Indian Act.

Off-reserve aboriginal people reject federal definitions of Indians and gave real life examples of the damaging impact of these definitions on individuals and families. CAP says the current definition of “Indian” is an arbitrary one and their constituents reject the imposition of racially and sexually discriminatory legal categories within the aboriginal community through federal law.

Off-reserve aboriginal people want to see a restructuring to reflect the social reality of the significant numbers of aboriginal people living off-reserve because INAC is focused exclusively on reserve communities where only a minority of aboriginal people actually live.

There was a universal sentiment that the broad range of inequalities created by the Indian Act at the individual and collective level must be abolished and more specifically:

  • there must be equal recognition of Aboriginal peoples and Aboriginal peoples governments in federal legislation including off-reserve Aboriginal peoples organizations;
  • the individual equality rights violations embedded in the Indian status entitlement and band membership provisions must be corrected;
    the equality rights of Aboriginal women must be addressed in any governance or self-government legislation;
  • off-reserve Aboriginal peoples organizations should be properly resourced to meet the program and service needs of off-reserve Aboriginal people and at a level proportionate to the funding provided on-reserve Aboriginal people;
  • off-reserve Aboriginal peoples organizations must continue to be involved in further consultation processes flowing from this initiative or further initiatives to review the Indian Act;
  • off-reserve Aboriginal peoples organizations should be funded at least on an equal basis with on reserve organizations in respect to their participation in consultation processes such as this one;
  • equality rights with respect to political participation in elections and other forms of leadership selection must apply to all custom bands as well as bands operating under the Indian Act election system.

“CAP is participating in this process because we know that any changes to the Indian Act will affect part of our constituency off-reserve registered Indians, ” said Dwight Dorey, CAP’s national chief.