By 1997, after decades of rancour with First Nations regarding their ability and right to be self-governing, the Government of Canada had seemingly settled on recognition, respect and reconciliation as the fundamental tenets that would underlie its relationship with First Nations and other Aboriginal peoples. The First Nations Governance Act (FNGA), projected to be a key part of the Chrétien “legacy,” was introduced in the House of Commons by Robert Nault, the Minister of Indian Affairs and Northern Development, on June 14, 2002. After dying on the Order Paper, it was reinstated in October as Bill C-7. A Parliamentary Committee is currently holding hearings on the bill across Canada. The FNGA brings Canada’s commitment to recognition, respect and reconciliation into serious question. The bill has reinforced distrust on the part of First Nations for Canada’s intentions and exacerbated conflict with them.
Emerging out of a process that was well over a year in the making, the proposed legislation would amend the Indian Act to require bands to design and adopt codes for leadership selection, the administration of government and financial management and accountability. It would give band councils “the legal capacity, rights, powers and privileges of a natural person,” including the ability to enter into contracts and agreements; acquire, hold and dispose of rights and interests in property; raise, expend, invest and borrow money; and sue or be sued. In addition, bands would have delegated powers to make laws for local and internal purposes. The FNGA would also repeal the clause that exempts the Indian Act from the application of the Canadian Human Rights Act.
The Indian Act came into being in 1876. As Indian and Northern Affairs Canada (INAC) notes, this legislation “was based on the view that First Nations people could not properly run their own lives or community affairs.” The proposed governance legislation, Minister Nault suggests, “will create a governance system for First Nations by First Nations. It represents a fundamental shift from the colonial approach to governance embodied in the Indian Act. It puts authority in the hands of Indian people.”
The initiative, the minister has asserted repeatedly, is not intended to supersede the federal commitment to the implementation of the inherent right of First Nations self-government. The FNGA, the minister maintains, will provide the tools of governance to enable band councils to proceed with “practical bread-and-butter issues” such as economic development and day-to-day community governance. It is necessary, Minister Nault argues because “we are about 60 years away” from achieving the full implementation of the inherent right.
“Some communities,” the minister contends, “simply aren’t ready to begin self-government negotiations. In the meantime, the Indian Act limits their ability to meet their communities’ social and economic priorities.” The draft legislation, he suggests, will provide a “bridge,” an “interim step” to self-government. ”If I have an agenda,” Minister Nault admits, “…it is to strip the power and authorities of the Minister of Indian and Northern Affairs, and to put them in First Nations communities.”
There are multiple reasons why the federal government has embarked on this initiative. There are over 200 cases in the courts involving challenges to parts of the Indian Act. The costs and uncertainty arising from the ensuing litigation will be high. Perhaps even more significant is the sense of frustration Canada feels with the pace of self-government negotiations. A huge gap exists between Canada and most First Nations on issues such as the proposed scope of governing powers and the role of the provinces in self-government arrangements.
The FNGA, Nault asserts, reflects the views of many First Nations people. It “has been built from the ground up. It is based on the most extensive consultations ever undertaken with First Nations….Ten thousand First Nations people participated.” In addition, he notes, a Joint Ministerial Committee made up of representatives of the Congress of Aboriginal Peoples and the National Aboriginal Women’s Association, as well as government officials, took part in the drafting process. Nevertheless, the opposition to the FNGA on the part of many First Nations has been steadfast and, at times, bitter.
The implications of Canada’s governance initiative need to be understood in the context of the wider public policy debate regarding the inherent right of Aboriginal self-government. For over a decade, with the exception of interests such as the Canadian Alliance, there has been a fairly broad agreement in the Canadian political community that Aboriginal peoples have an inherent right of self-government. This attribute is a “right” in the sense that it is an entitlement or immunity from normal, if not all, limitations under law. It is “inherent” because it abides in Aboriginal peoples as peoples; it is not something that has been given to them by Canada, its courts or its Constitution. It arises from and reflects the indigenous values, cultures and practices of Aboriginal peoples. This much is generally accepted. So too is the idea that, at one level or another, self-government involves the right to make laws, possess and occupy jurisdictional fields and establish governing institutions and constitutions.
It is at this point that mutual understanding, somewhat unsteady at best, fades into discordance. Canada, the provinces and the territories assert that the exercise of the inherent right must be contingent on their agreement. Moreover, they insist that the powers that might flow from the right should, to a very significant degree, be subordinate to the powers of nonAboriginal governments.
Aboriginal peoples hold a variety of perspectives on the question, but they generally agree that the inherent right is an entitlement to a high degree of independence from non-Aboriginal governments, particularly with regard to law-making powers as well as governing structures and processes. Moreover, they assert, the governing powers that flow from the inherent right are not contingent upon the agreement of any external authority. Without the consent of the people who hold the right, they argue, these powers cannot be made subordinate to the powers of any other government. For some Aboriginal peoples, particularly First Nations, the inherent right is akin to the concept of sovereignty. For almost all, it is not something that can be given by the Government of Canada or the Canadian Constitution. It is a fact that existed prior to the emergence of Canada and continues to exist independently today.
It is no wonder that many First Nations organizations and governments are troubled in one way or another by the pending legislation. On the face of it, the FNGA would appear to run counter to the notion of an inherent right. The National Aboriginal Women’s Association (NAWA) has been among the most supportive of national First Nations organizations. Founded in 2001 with a $225,000 federal grant to work with INAC on the governance initiative, NAWA has praised the draft legislation, particularly because of its focus on human rights. Still, Pam Paul, the president of NAWA, has said she is not “100 percent” in favour of the FNGA due to her concerns that it may adversely affect Aboriginal and treaty rights.
Chief Dwight Dorey of the Congress of Aboriginal Peoples (CAP), which represents “off-reserve Indians and Metis living in urban, rural and remote areas,” spoke in support of the draft legislation when it was introduced into the House. Nevertheless, CAP asserts that the initiative does not build on the federal government’s recognition of an existing, constitutionally protected inherent right of self-government. The Indian Act, CAP argues, is “an antiquated, colonial piece of legislation” that does not offer a sufficient or proper basis for reform. CAP also rejects the narrow scope and delegated nature of Indian Act powers. “Our distinct identities as nations,” CAP maintains, “can only be defined and determined by the people and peoples affected.”
CAP and other prominent First Nations organizations clearly feel that the governance initiative has placed them in a bind. Very few First Nations support the notion of Indian Act reform. Most want to design and operate their own governance institutions based upon their inherent law-making powers. Nevertheless, they are in the difficult position of feeling they have to take part in the process of developing the FNGA, to protect their interests in the face of the federal government’s determination to push ahead.
The Assembly of First Nations (AFN), the national representative of over 600 First Nations across Canada, has taken a different course of action than NAWA and CAP. While the issue of how to respond to the federal governance proposals remains the topic of heated debate within the AFN, the organization has passed a number of resolutions condemning the initiative, declaring its “complete and unequivocal rejection” of the FNGA and affirming its commitment to the “principles of accountability, transparency and equitable governance.” The AFN proposes “a rights-based approach” as an alternative.
National Chief Matthew Coon Come argues the governance proposals are a direct attack on Aboriginal and treaty rights. “One of the clearest examples,” he notes, “is in the area of legal standing and capacity of First Nations.” Dealing with this matter outside of a treaty context and providing First Nations with the legal status of natural persons, he maintains, creates a strong potential for “corporatizing Aboriginal and treaty rights…and corporations don’t have treaties or treaty rights.” Criticizing Nault’s efforts to modernize the Indian Act, the National Chief counters that: “You don’t modernize colonialism— you reject it!
The FNGA, the National Chief maintains, is intended to change First Nations governments into municipalstyle governments. Meanwhile, the initiative will increase, not decrease, accountability to the federal government, while reducing the federal government’s liabilities, obligations and responsibilities to First Nations. In addition, the proposed legislation will not contribute to economic development, Coon Come argues, since it does not address key land and resources issues.
The AFN is particularly critical of the federal consultation process. The process involved a very small percentage of First Nations people, the AFN argues, and a large number of the participants expressed frustration at the narrow focus of the legislation. Other participants complained that appropriate information was not available. Nevertheless, the AFN maintains, their involvement has been cited by INAC as a component of a comprehensive and adequate consultation process. Participation, National Chief Coon Come notes, does not imply support or consent. “A fundamentally flawed process,” he notes, “can only produce fundamentally flawed results.”
An examination of the draft legislation in light of Canada’s commitment to the implementation of the inherent right of self-government indicates that the proposed act is at odds with this commitment. The federal government announced its policy on the inherent right in 1995. This right, it recognized, is an existing right within s. 35 of the Constitution Act, 1982, the part of the Constitution in which Aboriginal and treaty rights are “recognized and affirmed.” Describing the inherent right as the “cornerstone” of its Aboriginal policy, the federal government noted that its goal was clear: “Significant change must be made to ensure Aboriginal peoples have greater control over their lives. The most just, reasonable and practical mechanism to achieve this is through negotiated agreements.” The implementation of the inherent right, Canada maintained, would provide Aboriginal peoples with the necessary tools to become self-governing. The “central objective” of negotiations would be to reach agreements on the jurisdiction and authority of First Nations to act in a number of areas. It listed a range of matters for negotiation. The first item on the list was the establishment of Aboriginal governing structures, internal constitutions, elections and leadership processes.
Eight years later, Canada has taken a remarkably different course in its approach to First Nations self-government. It has replaced negotiations based upon the principle of mutual consent with consultation based on federal authority. It has moved from a focus on constitutionally protected rights and the governing powers that flow from them to an emphasis on legislation rooted in federal jurisdiction over First Nations. Self-government that is based on constitutionally protected powers is no longer a matter for immediate implementation. It is a distant dream that may well be “about sixty years away.”
Nault has argued that the pending law is a “bridge” to the implementation of the inherent right, but the FNGA addresses the nature of this bridge in a vague and uncertain manner. In fact, Canada expressly retains the power to determine whether or not bands that are currently involved in self-government negotiations will be subject to the new legislation after the two-year transitional period foreseen by the legislation. Moreover, the very powers that were at the forefront of Canada’s list to negotiate within the context of inherent right agreements with First Nations— the establishment of governing structures, elections and leadership processes— are now the subject of legislation that would be imposed on First Nations. It is difficult, if not impossible, to reconcile the prescriptive nature of the FNGA with the notion of First Nations’ self-government.
Other parts of the bill are at odds with the notion of an inherent right. The proposed legal status of band governments would provide them with the legal capacity, rights, powers and privileges of a natural person. This is quite different from an express acknowledgement of First Nations as self-governing entities with constitutional status. As Stephen Cornell, Miriam Jorgensen and Joseph Kalt of the renowned Harvard Project on American Indian Economic Development have written with regard to the proposed legislation:
Despite the stated concern with self-government and with helping First Nations develop effective tools of self-governance, what is most striking to us is the degree to which matters of governance in the FNGA are not left to First Nations’ discretion. The provisions of the FNGA make us question the extent of the federal government’s commitment to indigenous self-governance.
Minister Nault has said that it is the intention of his government to use the FNGA to strip away the powers of the Minister of Indian Affairs and put them in First Nations communities. While the proposed legislation would reduce many of the Minister of Indian Affairs and Northern Development’s prerogatives, it would not do so completely. The minister would still have the ability to insert him or herself into the financial affairs of a band. He or she also would retain important powers to hear appeals concerning band elections and to overrule band-governing institutions. One may argue the merits of such provisions, but clearly they are not steps towards greater self-government.
In its 1997 Statement of Reconciliation, the federal government pledged itself to form new partnerships with Aboriginal peoples to foster full participation in the political, economic, cultural and social life of Canada while preserving and enhancing “the collective identities” of Aboriginal peoples. The FNGA, as currently designed, does not abide by this goal. For example, there are important provisions in the Indian Act that enable bands to select their leaders by “custom.” Many bands have taken advantage of these provisions to assert their traditional values and practices. After a two-year transitional period, the draft legislation would no longer enable bands to take this route and those who have already done so will face increased restrictions. In this instance, the new legislation would be a step backward from the Indian Act.
There are several other provisions in the proposed legislation that run counter to the recognition of traditional First Nations governing practices and values. In the preamble to the bill, there is reference to “broadly held Canadian values” but no reference to First Nations’ values. Traditional First Nations’ governance values, such as open government and consensus decision-making, are swept aside by provisions that would require bands to elect a majority of band council members by secret ballot. Many Canadians may want First Nations to adopt such procedures. Existing federal policies call for negotiations and mutual accommodations to resolve such differences. This is not the approach that has been taken with the current legislation.
Canada might counter this judgment by pointing to the processes it has used over the past two years to consult with First Nations regarding the governance initiative. As the AFN has pointed out, these processes have not been without their problems. A very small percentage of First Nations people took part in these processes. Most significantly, an examination of the minister’s current governance agenda indicates that it has not changed since the beginning of the process. Consultation, in this instance, has not led to accommodation.
It could well be argued that if the FNGA became law, it would be an infringement on the inherent right of self-government. It may further be argued that this infringement is unjustifiable. Proper consultation has not taken place and it is not clear that the infringement is as minimal as could be. Proper consultation and minimal impairment of an Aboriginal right are principles articulated by the Supreme Court of Canada to help protect Aboriginal rights. If the federal government does not meet these tests, then it is in violation of its constitutionally determined fiduciary obligations. These obligations require it to recognize and affirm the Aboriginal and treaty rights protected under s. 35.
How can the federal government fulfill its constitutional obligations to recognize and affirm the inherent right of self-government? Some, such as the national AFN, would argue that Canada should simply withdraw the legislation, terminate the governance initiative and join with First Nations to explore an entirely new approach. This is quite unlikely. The Chrétien government is committed to its plan to produce First Nations governance legislation as part of its legacy. Moreover, there appears to be strong support among the general public and in many First Nations communities for the need to immediately address matters such as accountability, financial administration and leadership selection in band governments.
The best possible course of action would have been for Canada to reinvigorate its efforts to obtain self-government agreements with First Nations, while introducing innovative approaches to accelerate the process. This has not happened. Given the circumstances, is there a way that the goal of governance legislation can be reconciled with Canada’s commitment to First Nations inherent right of selfgovernment? Perhaps with the leadership of the Parliamentary Committee that is currently conducting hearings on the FNGA, Canada could do so by taking seven steps that would produce a preferable public policy outcome that would enable the prime minister to leave office with a positive legacy, rather than a legacy of loss.
The first step would be to extend the current timetable for the legislation and to enter into a process of negotiation with First Nations who, in principle, would accept the idea of legislation as a way of moving towards a greater degree of self-government. In this way, the idea of partnership that is integral to any commitment to reconciliation could be more fully realized.
A second measure would see Canada articulating a clear and certain tie between the legislation and the implementation of the inherent right of self-government. This would entail a specific initiative to review and change the current inherent right policy, a policy that is deeply contradictory. It would also require an authentic readiness on the part of Canada to reach agreements about self-governing powers and institutions with First Nations.
The third step would be relatively easy to take, but it would produce a profound change in the nature of the legislation. The prescriptive nature of the proposed act should be abandoned. The legislation should be enabling, so that the principle of free choice, which is central to the idea of self-government, should prevail. As a result, bands would have the choice, for example, of creating and designing their own codes or of opting into codes provided through federal regulations. They would have the opportunity to remain under the Indian Act or to negotiate fuller, more comprehensive self-government arrangements than envisioned in the legislation.
The fourth measure would be for Canada to alter the proposed legislation with regard to the legal status of bands. The language of the legislation should be changed so that band governments are defined not as “natural persons,” but as self-governing entities, with a unique status under s. 35 of the Constitution.
The fifth step would be to remove those parts of the proposed legislation that refer to the reinforcement or enhancement of the powers of the Minister of Indian Affairs and Northern Development over band governments. Ministerial powers in relation to internal matters such as finances and appeal processes are not compatible with the principle of self-government.
The sixth measure would be to remove the provisions of the draft legislation that relate to the powers of band governments. The powers of the self-governing institutions of First Nations should not be the subject of legislation that delegates federal powers. The only legitimate context in which Canada should address these powers is in government-to-government negotiations and agreements.
The seventh and final step would be for Canada to include explicit recognition of First Nations governing values in the legislation. In addition to providing the kind of respect that is integral to reconciliation, this step would enable the federal government to actively address the needs of those First Nations who seek to return to traditional practices and institutions of self-government.
In its 1996 report, the Royal Commission on Aboriginal Peoples indicated that its central conclusion with regard to the relationship between Aboriginal and non-Aboriginal people in Canada was that: “The main policy direction, pursued for more than 150 years, first by colonial and then by Canadian governments, has been wrong.” The proposed First Nations Governance Act, as currently designed, does not represent a departure from that policy direction. It is an extension of it.
It is well past time for Canada to take a new policy direction that is based upon recognition rather than denial, respect rather than dominance and reconciliation rather than assimilation. It is not too late for Canada to change the course it has taken with the pending legislation. In fact, it is imperative that it does so. As the Royal Commission noted: “There can be no peace or harmony unless there is justice.” Justice is possible. It is time for Canada to prove this is so. It is time for Canada to bring the First Nations Governance Act into line with its commitment to the implementation of the inherent right of self-government.
