(This is an edited expcert from the Assembly of First Nations Analysis of Bill C-61, Minister Nault’s new governance bill, and a legal opinion by Ojibway lawyer David Nahwegabow.) The “new and improved” Indian Act emerged from the bowels of the Department of Indian Affairs to see its first light of day on Wednesday, June 12, when Minister of Indian Affairs Robert Nault rose in the House of Commons to table his well-trumpeted legislation, now officially “Bill C-61, The First Nations Governance Act.” On Monday, June 17, Nault make a motion to refer the Bill to committee before second reading the bill. Then the House’s attention turned to the specific claims resolution bill introduced on June 13.
What will happen next is anyone’s guess. Parliament will likely reconvene in mid-September. In early October, Parliament will prorogue so the Queen can make a Speech from the Throne during the course of her visit to Canada. All Bills then on the Order Paper of the House of Commons then die. What has been gained?
The new Bill C-61 is intended to be a Governance Act that will stand on its own, but will interact with the Indian Act. The Indian Act will be amended by removing from it all governance matters including elections and bylaw powers □ and dealing with those matters in the new Act.
The Assembly of First Nations Analysis: Principal Points To Remember 1. Throughout the initiative leading up to the draft legislation, the Minister has repeatedly claimed that he wants to return authority to First Nations. Yet the proposed FNGA indicates that the Minister will retain power in key areas such as election appeals.
2. Further, the Act will create a legislative basis for the intervention of the Minister in the financial affairs of First Nations for the first time. This authority directly infringes the inherent right to self-government and clearly signals the Minister ongoing motivation to control First Nation affairs.
3. The Act will also create new authority for the Minister to oversee a national registry of band laws. This authority is particularly concerning given the dismal record of the Minister and DIAND operating similar functions such as the lands and Indian status registries. Both systems are terribly out of date, often unreliable and generally provide poor service to First Nations. Adding another registry function is unacceptable not only because of the clear possibility of continued poor service, but moreover because it does not contribute to First Nation capacity. These are all functions that should and must become part of First Nation governing structures in the future. First Nation institutional capacity in these areas would serve as a clear transition to self-government, would be supportive of nation-building and the recognition of the inherent right to self-determination.” 4. By creating important new authority for the Minister and Cabinet, the proposed legislation serves to further entrench the colonial approach put forward in the Indian Act and solidifies the direct infringement on the inherent right to self-government.
5. The description and adoption procedures provided for each of the required codes is another potential area of infringement. In each code, elements are prescribed, which do not, by and large, reflect First Nation political culture. In addition, many of these matters such as the conduct of community meetings, the remuneration of employees and others, are clearly matters internal to a community and should not be set out in legislation.
6. The FNGA will impose these codes and their requirements on all First Nations regardless of size, circumstance, economic condition, or needs. First Nations have always maintained that a ‘one-size fits all approach’ will not work for First Nations. While First Nations can prepare their codes, the authority is little more than ‘fill- in the blanks’ as provided by the Government through the FNGA. In addition, many First Nations will not be able to meet the requirements for developing codes due to a lack of resources and capacity, especially given the requirement to do all of this work within two years.
7. Imposing the requirement of these Codes along with the creation of mechanisms such as the Review Body, may also be highly impractical for the majority of smaller First Nations. The costs and capacity necessary to fulfill these requirements simply do not exist in many First Nations. Furthermore, the Minister has made no parallel commitment to resources or support measures of any kind. In fact, the First Nations Governance Institute, one body that may have been able to support First Nations dealing with these matters, was effectively shutdown before it was even started, solely because of the Minister’s lack of support.
8. The general nature and approach of this legislation must be challenged. As the National Chief has stated, “this is not even a good start”. In fact, the FNGA further entrenches the notion that First Nation authority is derived from the Government of Canada rather than providing recognition of First Nation authority as set out in section 35 of the Constitution Act.
9. It is impossible to accept the statement that this legislation will ‘provide more effective tools for governance’. In fact, FNGA will impose further requirements on First Nations without providing resources, supportive or remedial measures. Indeed, it would seem that the FNGA is a completely failed opportunity to address the governance needs of First Nations. This Act will neither equip nor enable First Nations to deal with governance. Moreover, it will further entrench the colonial approach of the past and continue the denial of the fundamental rights of First Nations peoples.” 10. Most First Nations rejected the consultation process due to the limited contents and pre-determined outcomes on accountability and transparency, legal status and capacity, and election and leadership selection. The few who participated stated their serious concerns on the inadequate consultation timeframe and the fact that content were not First Nation priorities.
