First Nations Governance

First Nations Governance Act: A New and Improved Assimilation Policy

By Ed Bianchi

(Archived document. While the struggle against the FNGA was eventually won and Bill C-7 never passed into law, the framework of the FNGA lives on in Canada's continued attempts to assimilate Indigenous peoples into the wider Canadian population.)

Not since the 1969 White Paper has a proposed federal bill generated so much opposition in the Aboriginal community. And not since 1969, have Aboriginal peoples been so united against a federal government initiative.

In late March 2001, Indian Affairs Minister Robert Nault announced he had received a cabinet mandate to develop draft legislation on Indian Act amendments. The proposed First Nations Governance Act (FNGA) would amend those parts of the Indian Act that deal with governance issues. Minister Nault said he would use consultations with Aboriginal peoples as the basis of the legislation.

Indian and Northern Affairs Canada (INAC) defines "governance" as "how a community is run and the rules that apply in its day to day operation." INAC says the legislation will be based on the idea of "tools for effective governance" and will look specifically at the financial accountability of First Nations; the operational accountability of chiefs and councils to community members; elections (leadership selection and voting rights); and the legal status and capacity of Indian Bands.

The legislation is mandatory and will be imposed on First Nations. First Nations will not have avenues to appeal or challenge the legislation, and there is no mechanism for First Nations to approve or reject any outcomes of this process. The process was initiated without the participation of First Nations, and, to date, First Nations have not seen a draft of the bill.

Aboriginal Response

Not since the 1969 White Paper has a proposed federal bill generated so much opposition in the Aboriginal community. And not since 1969, have Aboriginal peoples been so united against a federal government initiative.

In 1969, when Pierre Trudeau was prime minister, then Minister of Indian Affairs Jean Chrétien unveiled the federal government's White Paper on Indian policy. Aboriginal peoples rose up to oppose, and eventually defeat, the initiative in an unprecedented show of unity and force.

The White Paper-which proposed getting rid of the Indian Act, extinguishing Aboriginal title and rights, and terminating the historical nation-to-nation treaty relationship-was seen by Aboriginal peoples as just another attempt by the federal government to assimilate them. According to the Royal Commission on Aboriginal Peoples the opposition it generated marked the beginning of a renewed effort by Aboriginal peoples to resist assimilation and exercise their rights. "They began to see their struggle as part of a worldwide human rights movement of Indigenous peoples. They began to piece together the legal case for their continuity as peoples- nations within Canada-and to speak out about it" (People to People, Nation to Nation, p. 17).

In the face of such vociferous and unified opposition, Trudeau admitted he had made a mistake and withdrew the proposed legislation.

Fast forward 33 years, and in 2002, Aboriginal peoples see the federal government's proposed FNGA as proof that the White Paper's underlying principles were never abandoned, but driven underground. An analysis of documents that will be used by the government to table the proposed legislation, commissioned by the Aboriginal publication Anasazi, concludes that the "parallels between what was intended then (in 1969) and what is taking place now are unmistakable."

Instead of shelving the legislation, the federal government adopted a strategy designed to implement the White Paper incrementally over a longer period of time by using a myriad of policies, programs and legislation. Anasazi argues that "Today, the same White Paper principles have emerged as separate elements on the government assembly line.…Now that all the components are manufactured, they can be assembled as an end product to reveal the same old White Paper."

Not surprisingly, the opposition to the initiative from Aboriginal peoples was swift and unequivocal. Within weeks of Minister Nault's announcement of the government's plan to introduce the legislation, Aboriginal organizations publicly registered their rejection of the proposal. The response, which was reminiscent of the 1969 response to the White Paper, came from the Mi'kmaq, Maliseet and Passamaquoddy chiefs, the Chiefs of Ontario, the Association of Iroqouis and Allied Indians, the Assembly of Manitoba Chiefs, the Union of B.C. Indian Chiefs, the Interior Alliance of B.C. and the Assembly of First Nations.

The Union of B.C. Indian Chiefs passed a resolution that referred to the FNG initiative as "White Paper 2001" and which called on "all indigenous peoples and nations to join with us and compel Canada to recognize our inherent right of self-determination and Aboriginal title rather than tinker with the Indian Act."

Grand Chief Dennis White Bird of the Assembly of Manitoba Chiefs called for unified opposition to the FNGA, noting that Minister Nault's proposal "reflects the same mentality that produced the first Indian Act, the same old Indian Agent thinking. First Nations know their own priorities and what needs to be done to honour the Treaty relationship-Treaty implementation, equitable sharing, respect, jobs, houses, services and restoration of our institutions and our people. The Governance Act offers none of that."

Grand Chief White Bird pointed out that the FNG initiative goes against the Assembly of Manitoba Chiefs' own Manitoba First Nation Framework Agreement, self-governance process grounded in the recognition of treaty and Aboriginal rights and already agreed to by Canada.

Charles Fox, AFN Regional Vice-Chief for Ontario, said Aboriginal peoples "must resist the FNGA because it's not our agenda; it is the government's agenda. Its objective is to undermine our rights."

The AFN's Confederacy of Chiefs passed resolution 15/01 which stated "we reject the process the Minister is currently pursuing and instead declare that we, as First Nations, will draw up our own laws based on traditional customs and practices at the local community, regional and national levels."

The AFN echoed other Aboriginal leaders by saying the proposed FNGA had nothing to do with "governance" as it does not deal with the First Nations' vision of governance, self-government, treaty making or treaty implementation. National Chief Matthew Coon Come explained that the Aboriginal vision of governance "is based on the nation-to-nation relationship expressed in section 35 of Canada's own Constitution Act." He said the proposed legislation had more to do with making First Nations more accountable to Ottawa, and Ottawa less accountable to First Nations.

The AFN also objected to the unilateral nature of the government's proposal and called for a boycott of the consultation process, which was supposed to form the basis of the legislation. The Union of B.C. Indian Chiefs, the Atlantic Policy Congress of First Nations Chiefs and the Native Women's Association of Canada joined the boycott.

The Native Women's Association of Canada (NWAC) announced it would not take part in the FNG consultation process and turned down $1.1 million from INAC, more than triple its $300,000 annual budget, to assist with consultations with First Nations. NWAC said it was uncomfortable with the fact that Indian Affairs officials would accompany Aboriginal peoples on visits to communities. It also said the consultations would not cover key issues for Aboriginal women, including membership, status and matrimonial property.

The Congress of Aboriginal Peoples (CAP), which represents off-reserve Indian and Métis peoples, accepted funding from the federal government to participate in the FNG consultation process and "obtain the views and recommendations on the proposed changes to the act from its constituents at the regional and community level during all phases of the consultation process, including the final legislative phase."

The consultations conducted by CAP indicated that the "legal status" elements of the proposed legislation worried Aboriginal peoples. In its final report on the first phase of the consultation process, CAP noted that "People at the community level mistrust the government's objectives in proposing that 'bands' or 'First Nations' be provided a clear legal status through the proposed governance legislation. They fear the imposition of corporate status and are concerned about whether there would be a negative impact on Aboriginal and treaty rights, on their status as nations and on the fiduciary relationship between the Crown and Aboriginal peoples."

The report stressed that "conferring legal status, powers or capacities on First Nations/bands is not acceptable and would constitute further federal interference in Aboriginal peoples' rights to control and define their own identities." CAP concluded that there "is not sufficient understanding or support for this proposal at the community level for the federal government to proceed with it as an element of the proposed Bill."

FNG Part of an Assimilationist Package

Aboriginal groups also stressed that the proposed FNG legislation needed to be assessed as part of a larger federal legislative package that includes the First Nations Financial Institutions Act and the First Nations Federal Indian Claims Commission Act. B.C.'s Interior Alliance spokesperson, Chief Arthur Manuel, described the legislative package as a "gross violation of Indigenous peoples' inherent right to self-determination" and said it would accelerate the extinguishment of Aboriginal title and rights.

The First Nations Financial Institutions Act does not recognize constitutionally entrenched Aboriginal inherent rights. It promotes a municipal model of community development designed to release the federal government from its fiduciary responsibility to maintain reserve infrastructure and housing. Ultimately, it will accelerate the process of eliminating reserves by converting them into fee simple lands, and accelerate the elimination of tax immunity by forcing the payment of property, income and sales taxes on reserves.

The Federal Indian Claims Commission Act will limit federal liability for mismanaged and misinterpreted treaty agreements to $5 million.

In other words, the federal package that includes the proposed FNGA deals less with governance, than with the issue of federal fiduciary responsibility.

According to the Supreme Court of Canada, the relationship between Canada and Aboriginal peoples is a fiduciary one. In other words, it is Canada's duty to protect Aboriginal rights, and to ensure that the process is fair, if and when Aboriginal peoples choose to enter into negotiations regarding those rights. It is a trust-like, non-adversarial relationship that always, according to the Court, involves the honour of the Crown. It is entrenched in section 35 (1) of the Constitution Act, 1982.

By changing the legal status of First Nations to corporate entities on the same level as municipalities-with none of the rights ascribed to sovereign nations-the federal government can absolve itself of its fiduciary responsibility.

A legal analysis of the proposed legislation, commissioned by the Assembly of First Nations, boiled the issue down to one question: "Do First Nations want to be Indian Bands as defined by section 91 (24) of the Indian Act [BNA Act] or First Nation governments as guaranteed under section 35 of the Constitution Act?"

The Indian Act defines "bands," "band councils" and "band membership" and what powers bands have. However, a band's rights extend beyond those defined in the Indian Act to include those that are derived from the fact that it is part of a First Nation that enjoys inherent and treaty rights that are constitutionally protected and affirmed by section 35 of the Constitution Act, 1982, have been upheld and further defined by the court and are internationally recognized. These rights exist whether or not they are recognized in the Indian Act.

The FNG initiative is based on the Indian Act view that First Nations governance is a delegated power. In other words, self-determination and self-government are powers that are given or granted to First Nations by the federal government. Most First Nations view self-determination and self-government as inherent rights. This is the view expressed in section 35 of the Constitution.

The Royal Commission on Aboriginal Peoples identified the need to negotiate and reconcile Aboriginal governments within Canada as one key step towards resolving the concerns of Aboriginal peoples and building a new relationship between Aboriginal and non-Aboriginal peoples based on mutual respect, recognition and sharing.

British common law, Canadian case law and several Supreme Court of Canada decisions provide full recognition of Aboriginal and treaty rights and unique Aboriginal orders of government. In response to the constitutional guarantee and the explicit direction from the courts, the role of Parliament is to find fair ways and means to reconcile the constitutional rights of Aboriginal peoples within the state, including Aboriginal governments.

Instead, the federal government is proposing legislation that is designed to end or contain Aboriginal governments, to absorb First Nations under the Indian Act and to act as a vehicle through which the federal government will seek to promote its own narrow view of First Nations self-government. As such, it is totally inconsistent with recognition of the inherent right and the other right of self-determination as an emerging norm in international law.

All the Aboriginal groups that oppose the FNG initiative agree that the Indian Act must be changed. Where they differ from the federal government is that they insist this change must be grounded in the constitutional recognition of Aboriginal rights and governments. The Indian Act creates administrative authority over Indians, not governance.

First Nations participation in the development and enactment of this proposed legislation could constitute or contribute to legal justification for infringement of inherent rights, and could divert focus or pre-empt the actualization of the inherent right to self-government.

Aboriginal Governance Strategy

At its annual general assembly in July the Assembly of First Nations passed a resolution rejecting the FNG initiative. The chiefs unanimously supported their own, newly drafted, First Nations governance strategy, and gave Minister Nault 30 days to reach an acceptable compromise or face an "aggressive, strategic plan of action" that could include roadblocks and other forms of direct action.

Nault eventually rejected the AFN proposal, but issued a counter proposal that involved working co-operatively on another package that included the governance initiative, as well as proposals dealing with economic and social programs, and treaty issues.

At a Confederacy of Chiefs meeting in December, the AFN voted against the plan to co-operate with Minister Nault, even though it had been endorsed by National Chief Matthew Coon Come and members of his executive, because it would have meant endorsing the FNG initiative.

Minister Nault reiterated that it is his intention to rush this act through parliament, regardless of what Aboriginal people say.

Aboriginal peoples see rejection of the First Nations Governance initiative as essential to the preservation of their Aboriginal and treaty rights, and to their continued existence as distinct peoples. They also stress, that as in 1969, Aboriginal peoples in 2002 are not opposed to change.

As a response to the 1969 White Paper, Harold Cardinal, a Cree leader working with the Indian Association of Alberta, wrote The Unjust Society: The Tragedy of Canada's Indians. In it he explained that Aboriginal peoples were not opposed to changing the Indian Act, but not at the expense of their rights.

"We do not want the Indian Act retained because it is a good piece of legislation. It isn't. It is discriminatory from start to finish.…but we would rather continue to live in bondage under the unequitable Indian Act than surrender our sacred rights. Any time government wants to honour its obligations to us we are more than ready to help devise new Indian legislation."

Three decades later, it appears the federal government is still not ready to honour its obligations or willing to work collaboratively to devise new legislation.

The FNGA proposal, and its related initiatives, is part of a federal policy to undermine and terminate Aboriginal rights that is as old as Canada. The section of the Constitution Act, 1867 (British North America Act) that gave responsibility for "Indians and lands reserved for Indians" to the newly created Government of the Dominion of Canada was drafted to provide policy "teeth" for Sir John A. MacDonald's decree that Canada's goal was to "do away with the tribal system and assimilate the Indian people in all respects with the inhabitants of the Dominion."

The goal of the federal government's assimilation policy-which is reflected in land rights negotiations-is to free up Aboriginal lands and resources for commercial and investment purposes. The government's latest initiative is especially controversial because it represents an attempt to assimilate Aboriginal peoples en masse. The FNG initiative is seen by many Aboriginal peoples as the government's "final solution" to the Aboriginal land question.

In March 2002, First Nations leadership met in Winnipeg to discuss the federal government's initiative and strategize. The event was billed as the Protection of Treaty & Inherent Rights Gathering: Addressing FNGA and Promoting a First Nations Agenda. At the end of the two-day gathering, First Nations leaders issued a proclamation that stated, in part, "we do hereby proclaim that…we will not tolerate forced assimilation by Canada's national institutions (legislative, executive and judicial branches) and that our Indigenous Nations and Tribes retain and affirm all of their inherent collective rights as sovereign nations, including the right of self-determination and self-government."

The leaders also agreed to immediately establish an implementation committee on treaty and inherent rights to develop a media and public awareness campaign to impact the legislative and policy process, and to provide alternatives to the FNGA.

In a statement commemorating the 20th anniversary of the Canadian Constitution, AFN National Chief Coon Come underlined its importance to the relationship between Aboriginal and non-Aboriginal peoples, but lamented the fact that constitutionally recognized aboriginal and treaty rights have yet to be "meaningfully implemented." "[A]s an order of government in Canada, we must always be a pivotal part of every process concerning First Nations.

"Minister Nault's First Nations Governance initiative does not respect this. His Indian Act legislation is based on a colonial mentality and will further diminish our rights, where First Nations are treated as 'wards of the state' rather than as sovereign participants in this land. We now have to work on a real political relationship between First Nations and Canada. A Nation-to-Nation relationship that will bring about fundamental changes for First Nations in the same way the Charter of Rights has done for non-aboriginal Canadians."

Ed Bianchi is the Aboriginal Rights Program Coordinator for KAIROS.