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Bill C-7: First Nations Governance Act
Submission of KAIROS to the House of Commons
Standing Committee on
Aboriginal Affairs, Northern Development and Natural Resources
11 February 2003
See also:
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Deja vu? |
Section 35 of the Constitution
Act, 1982 provides that “The existing aboriginal and treaty
rights of the aboriginal peoples of Canada are hereby recognized
and affirmed.” The Royal Commission on Aboriginal Peoples
has confirmed that the right of self-determination is an existing
right under section 35, a right that empowers First Nations peoples
to enact the kind of legislative measures proposed in this bill.
Recently, in the Campbell decision, the BC Supreme Court upheld
the existence of an inherent right of self-determintion and other
Canadian courts have likewise agreed that protecting the right of
self-determination is one of the purposes of section 35.
Self-determination means the right of Aboriginal peoples to realize
their aspirations as Peoples and Nations; to be distinct in terms
of language, traditions and spirituality; to be the architects of
their own future. It means having an adequate land and resource
base, and control of those lands and resources. It requires wide-ranging
jurisdictions that will enable Aboriginal peoples to run their own
institutions.
By enacting laws on behalf of Aboriginal peoples, and imposing a
“one size fits all” approach, Bill C-7 undermines their
right of self-determination and their status as Nations and compromises
their ability to exercise their own traditional governance practices.
Moreover, it implies that First Nations’ rights are not in
fact inherent but flow from the Government of Canada. We think it
particularly instructive that the word ‘Constitution’
does not appear in Bill C-7.
Finally, given that the new legislation will apply to all First
Nations, excepting those that have signed self-government agreements,
Bill C-7 could constrain the rights of First Nations presently negotiating
with the federal government, particularly where those treaty negotiations
include issues of governance.
In 1969, then Indian Affairs Minister Jean Chretien released the
federal White Paper on Indian Policy which called for eliminating
the Indian Act, along with Section 91 (24) of the Constitution Act,
1867. Both were described as ‘discriminatory’ because
they ascribed special legal status to First Nations. The White Paper
also proposed removing legislative impediments to ‘equality’,
establishing Aboriginal communities as municipalities, eliminating
reserve lands, and terminating Aboriginal and Treaty rights. The
goal was the assimilation of Aboriginal peoples.
Intense and unprecedented opposition to the paper forced its withdrawal,
but the policy was never abandoned. Instead, it has been implemented
piecemeal, by way of successive federal programs and through legislation
like the current Bill C-7. Moreover, in order to gauge the full,
potential impact of C-7 on the rights and lives of First Nations,
it must be seen as part of a legislative package that includes Bill
C-6, the Specific Claims Resolution Act and Bill C-19, the First
Nations Fiscal and Statistical Management Act. KAIROS is dismayed
that much of the proposed legislative package runs contrary to the
recommendations of the Royal Commission on Aboriginal Peoples, the
1983 Commons Committee on First Nations Self-Government (Penner),
and the 2000 Senate Committee Report, Forging New Relationships.
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The majority of First Nations people and organizations either do
not support this legislation, or at a minimum retain serious concerns
about its potential impact on their rights. It is unconscionable
and unacceptable for the government to proceed with this bill in
the face of continuing Aboriginal opposition, especially since First
Nations organizations have repeatedly demonstrated their willingness
to collaborate.
While KAIROS applauds both the government’s decision to refer
the bill to Committee before Second Reading and the Committee’s
decision to travel across the country, we know that only a small
percentage of Aboriginal peoples took part in the information sessions
and community meetings held prior to the bill’s introduction
and fear that there remains a profound ignorance about this bill,
in both Aboriginal and non-Aboriginal communities across Canada.
In addition, we are concerned by reports from Aboriginal peoples
who took part in the consultation process that C-7 does not reflect
their input.
The experience of Bill C-6, the Specific Claims Act, heightens our
concern around the government’s consultation commitment. Notwithstanding
the Minister’s claim that C-6 was the product of years of
consultation with First Nations, the government ignored the recommendations
of the Joint Canada and First Nations Task Force on Specific Claims
with the result that virtually all Aboriginal organizations either
rejected the bill outright or refused to endorse it without substantial
amendment .
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Internationally, Canada champions the right to self-determination.
Canada has signed numerous UN Conventions and Treaties that recognize
and commit State Parties to the right of "self determination"
for all peoples. Canada also is actively involved in the Draft United
Nations Declaration on the rights of Indigenous Peoples. Article
3, Part 1 of the Draft Declaration states: “Indigenous peoples
have the right of self-determination. By virtue of that right they
freely determine their political status and freely pursue their
economic, social and cultural development.” However, the reality
of much of Canada’s domestic Aboriginal policy stands in stark
contradiction to that international position.
By defining governance and by detailing how First Nations governments
will exercise their power, C-7 contradicts the very notion of autonomy
implied in the term self-determination. C-7 also will limit and
define this inherent right as one that must be negotiated in order
to be protected
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In August KAIROS submitted a brief to the UN Committee on the Elimination
of Racial Discrimination (CERD). In that brief, KAIROS posed this
question for Canada:
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Considering that Bill C-7 is
essentially an administrative measure designed to monitor activities
on First Nations’ reserves, how does it promote and implement
First Nations’ right to self-determination as outlined
in Recommendation 2.3.2 of the Royal Commission on Aboriginal
Peoples? |
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Our recommendations to the Standing Committee are the same as
our recommendations to the UN Committee.
- Abandon Bill C-7 and work with Aboriginal peoples, nation to
nation, to address issues of governance, as well as other priorities
identified by Aboriginal peoples, including land rights and treaty
implementation, poverty, education and employment.
- Base future First Nations governance discussions on Recommendation
2.3.2 of the Royal Commission on Aboriginal Peoples: All governments
in Canada recognize that Aboriginal peoples are nations vested
with the right of self-determination.
KAIROS' 11 member churches continue to work with Aboriginal peoples
to reconcile, with respect and integrity, our common past, present
and future. Although the full spectrum of beliefs, attitudes and
values towards First Nations peoples is represented among the several
million members of our partner churches, we feel compelled to express
our belief that this legislation is deeply flawed for the reasons
cited above and that it threatens to undermine much of the work
that has been done to right the relationship between Aboriginal
and non-Aboriginal people in Canada
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