Regarding Bill C-7: The First Nations Governance Act

To be delivered March 19, 2003, in Winnipeg, Manitoba
Aboriginal Neighbours

Presentation to the House of Commons Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources by Mennonite Central Committee Canada

Introduction

Mennonite Central Committee Canada (MCCC) is the Christian service arm of Mennonite and Brethren in Christ churches in Canada. We are part of an international organization present in over 50 countries around the world. We have a network of nearly twenty staff working in Aboriginal communities from coastal British Columbia to Saskatoon to Labrador. Since 1974, program activities have ranged from wholistic suicide prevention to organizing cross-cultural exchanges to public support for Aboriginal peoples as they made their historic, successful bid to have their rights entrenched in Section 35 of our Constitution. We welcome the opportunity to present our concerns to this committee regarding Bill C-7.

Our hope is to call our government - through this committee - to pursue good federal governance on our behalf. We call for bold leadership. Bill C-7 emanates from a tired and counterproductive view of the relationship between First Nations and Canada. We need non-Aboriginal leaders to say boldly: We can break free from old patterns! We call for respect for democracy wherever it is practised. This means respect for the decisions of legitimate Aboriginal representatives who have rejected Bill C-7. Finally, we call for a commitment to long-term effectiveness and sustainable change. The steps we take today must be consistent with the outcome hoped for in the long run. Bill C-7 is promoted as an interim measure--a "step in the right direction"--but the process that produced it remains inconsistent with the intended outcome. We believe it will fail in the long term because now, more than ever, "Process matters!"

"Process matters!": The fundamental problem with Bill C-7

Many have already listed the weaknesses of the "consultation" which preceded this legislation. We have observed a great deal of opposition to the process and a rejection of the priorities Indian and Northern Affairs (INAC) had set for the discussion. In one case, five sessions totalling over sixteen hours were held with one band and, as the publicly-available meeting notes state, "the general topic of discussion was treaties, INAC attempted to change the focus of the meeting however that did not happen." Overall, a relatively small number of individuals was consulted (1% of the Aboriginal population) and there was a failure to achieve adequate participation of representative national First Nations organizations. It is unacceptable that the minister responsible, speaking on CBC Radio, declared the Assembly of First Nations to be unnecessary for the completion of this legislative process.

The term "process," however, refers to more than the adequacy of consultation sessions and the number of participants. It must include the structural assumptions undergirding the development of this legislation. Bill C-7 is highly prescriptive and forceful in causing First Nations to organize their affairs in a certain way. It emanates from an "outside" government and builds upon the very legislation that government has used to suppress traditional Aboriginal governance institutions. There is an inherent contradiction in the notion that the path to Aboriginal self-government leads through such tinkering with the Indian Act. We remind the committee of the paper it received on February 11 from the ecumenical KAIROS coalition, which makes clear that this approach is inconsistent not only with the Canadian Constitution but with international law.

Can Bill C-7 serve as a "transition" to genuine self-government?

The contention has been made that Bill C-7 will serve as a transition to that kind of self-government which First Nations wish to exercise. We raise four concerns about the details of the bill itself which suggest it would fail in this regard:

1. that the power of the minister to intervene in the financial affairs of a First Nation would be entrenched and in some ways broadened by this legislation (10:3);
2. that the timeline for action which the bill would impose on Aboriginal communities is short and arbitrary. The two-year rush to avoid default governance codes could create more chaos than stability in some communities. In other situations it would simply underscore the nature of the whole exercise as an imposition and undermine the legitimacy of any resulting reforms;
3. that after two years, "custom rules" for leadership selection will no longer be permitted unless they meet all the criteria set out by section 5(1). This is inconsistent, arbitrary, and unfair to those Aboriginal nations still in the process of re-discovering traditional governance modes after generations of suppression;
4. that the bill may contain or lead to incremental and detrimental changes to the status of bands.

We urge the committee to take seriously the testimony of those who believe it will erode their status as distinct nations sharing treaty-based relationships with Canada. At minimum, their testimony should cause the committee to recommend the reinstatement of a so-called "non-derogation clause" and a bold reference to Section 35 of the Constitution which protects the Aboriginal right to self government. The latter would replace lines 19-23 of the preamble which imply that an inherent right may be subject to changes in government policy.

In spite of the preceding list of specific problemsl, we reiterate that the assumptions undergirding the bill and the process leading to it constitute fatal flaws. Whatever laudable images of transition the bill may conjure are erased when it is compared to the rich integrity of governance processes envisioned in the 1996 report of the Royal Commission on Aboriginal Peoples (RCAP).

The challenge of alternative visions

We know of no-one who suggests that the status quo is ideal or that true Aboriginal self-government does not require a long period of transition. We do know Aboriginal people who feel caught between deep concern about the present situation and equally deep fear of Bill C-7. Is there a third option?

Bill C-7 answers the question: How can we compel First Nations to pursue specific changes in governance structure? RCAP, by contrast, begins its section on governance "transition" with the question: "How might we begin to clear a path for Aboriginal peoples to set about the enormous undertaking before them?" The commissioners then continue: "We see the task in the area of governance as building or rebuilding Aboriginal nations .... which must result from the initiative of Aboriginal peoples themselves, (but) will obviously require the assistance of the other orders of government"(Vol. 2, Part 1, p. 311).

Bill C-7 does not provide the kind of "assistance" referred to in RCAP. The landmark report does recognize the need for federal legislation as part of the transition to Aboriginal self government, but it would be legislation of recognition. It would be explicit about the fact that "Aboriginal nations do not require federal (or provincial) legislation to have the constitutional authority to function as governments." It would set out jointly-developed criteria for formal recognition of Aboriginal nations as they themselves initiate and drive the process of constitution-building. It is unimaginable that such legislation would proceed with as much First Nation opposition as we are seeing in the case of Bill C-7. We refer to RCAP not to suggest its alternative process would be simple but to highlight its integrity. Every governance-related step it contemplates is a step away from the oppressive words and spirit of the Indian Act.

RCAP is marked by numerous phrases like "as the nations re-build themselves...." What is most encouraging to MCCC is that some Aboriginal nations have been pursuing this re-building process for some time. We cite three examples:

• The Gitxsan and Wet'suwet'en peoples of central British Columbia achieved their landmark legal victory in 1997 by presenting to the court their traditional systems of governance based on houses, clans, and hereditary chiefs. They demonstrated, with great courage and care, that each chief continues to carry defined responsibilities linked to particular territories. Now, forestry and other companies are entering agreements with representatives of that governance system.
• The Pimicikamak Cree Nation in Manitoba has re-constituted itself by passing the "First Written Law" and has enacted at least four other far-reaching laws. The laws cover themes such as citizenship, elections, a financial trust, and relations with the dominant economic force in their lands, Manitoba Hydro. The nation is governed by four councils: Women, Youth, Elders, and the Executive Council, the latter of which performs functions usually associated with Indian Act Band Councils. Lawmaking and administration are subject to extensive community consultation processes. Much use is made of the local television station to inform community members about matters of governance.
• The Anishinaabe Nation of Treaty #3 region in northwestern Ontario, through their Grand Council, are also working at lawmaking. They are seeking to exercise their inherent right to govern in a wide range of spheres, based on The Great Earth Law. The potential benefit to Aboriginal citizens is multiplied by the fact that this initiative is taking place at a regional level, with 28 First Nations involved.

In each of these cases the powers of, and requirement for, good governance are firmly rooted in the nation's identity, not imposed. This situation, we believe, increases the chance of lasting success. But each of these First Nations has met with federal resistance of one kind or another. Imagine if, instead of offering resistance, the federal government had taken the $10-15M spent for Bill C-7 and had used it so that these and other pioneering Aboriginal nations could share their vision with other First Nations.

Our challenge to this committee–and to each individual member--is to take back to Parliament a constructive message of alternatives to Bill C-7. We recommend:

1. policy changes designed to "get out of the way" of First Nations already undertaking nation-building initiatives and support for the exchange of "best practices" between First Nations;
2. vigorous support for the ongoing development of national Aboriginal organizations and for Aboriginal leadership and institutional development. Specifically, we recommend a reinstatement of the First Nations Governance Institute;
3. legislation developed jointly with First Nations which provides for the formal recognition of Aboriginal nations as they re-build at their own pace;
4. measures taken to provide interim accountability-related relief where necessary and, as soon as possible, lodging such powers of intervention in a national First Nations-controlled institution;
5. a renewed commitment to equitable sharing of resources to provide the economic basis for Aboriginal self government.

In conclusion, we ask the committee to recommend that Bill C-7 be abandoned. We consider this to be the most practical and realistic recommendation because we believe the bill will not succeed. Its passage would not constitute bold federal leadership and would not respect the democratic expressions of First Nations' leadership. We say again: "Process matters!"