July 16, 2002
Chief Stewart Phillip
President,
Union of BC Indian Chiefs
Vancouver Office,
5th Floor, 342 Water Street
Vancouver, B.C.
V6B 1B6
Dear Chief Phillip:
RE: Proposed First Nations Governance Act (“Bill C-61”)
Further to the above-noted matter, you retained me to provide UBCIC
with “a legal analysis of Bill C-61, First Nations Governance
Act, and its impact on Aboriginal Rights and Title”.
Before proceeding to my analysis, I would like to outline certain
parameters within which I operated in the preparation of this opinion.
First of all, I had very little time to do this opinion, so, it
is not exhaustive. I tried to focus on the fundamental principles
and main aspects of Bill C-61, but at some point in time, there
should be a detailed, clause-by-clause analysis done. Secondly,
I have assumed that the reference in my instructions, to “Aboriginal
Rights” includes the right of self-government. Considering
the Bill is in respect of “governance”, I have focussed
on this particular Aboriginal right. Thirdly, my main purpose in
this opinion is to provide a general legal/policy analysis of the
Bill, and since an alleged Aboriginal right is involved, I have
also made some preliminary remarks regarding the constitutionality
of Bill C-61, vis-à-vis s. 35 of the Constitution Act, 1982.
However, I strongly recommend that a thorough s. 35 analysis be
undertaken as soon as possible. Fourthly, since Bill C-61, if enacted
into law, will have national application, I have adopted a national
perspective in my analysis; however, to the extent that circumstances
unique to British Columbia will affect the application of this Bill,
I have taken the liberty of highlighting these circumstances. Finally,
my analysis does not touch on treaties except to the extent that
treaty rights will be affected in the same way as Aboriginal rights.
This analysis will be in six parts:
1. General Comments;
2. Purpose: Delegated Governance, Not Inherent Rights;
3. Main Elements of the Band Governance Scheme: Three Codes;
4. Impact of the Proposal in Bill C-61 to Bring Existing Band Councils
Under the First Nations Governance Act;
5. Special Impact on Custom Bands; and
6. Other Elements of Bill C-61.
General Comments
The proposed First Nations Governance Act, as presented by the Minister
of Indian Affairs, Robert Nault, into the House of Commons on June
14, 2002, will not be a direct amendment to the Indian Act. It is
a separate piece of legislation. However, there will be consequential
amendments, which will very directly and fundamentally affect the
Indian Act. Why the Minister chose to not directly amend the Indian
Act probably has more to do with presentation than substance. Whatever
the reason, it obviously complicates the drafting and therefore
the reading of the Bill.
As its title suggests, Bill C-61 is primarily about band governance.
More specifically, the Bill establishes a band governance scheme
with several key and interconnected components, which will be described
later. Though there are provisions in the Bill, which are miscellaneous
in nature, and not an integral part of that scheme, by and large,
most of the provisions in the proposed First Nations Governance
Act are an essential part of that scheme. This fact will be important
in assessing the constitutionality of the Bill; that is, the entire
scheme will be analysed to determine infringement and justification,
and will likely stand or fall depending on whether it is found to
violate s. 35.
Purpose: Delegated Governance, Not Inherent Rights
The proposed legislation does not purport to recognize, or be based
upon, the inherent right of self-government. It is based on a purely
delegated model. It operates from the starting assumption that the
Indian Act is the only source of governance structures and authorities
for bands. The Preamble to the Bill says that “effective tools
of governance have not been historically available under the Indian
Act” and that bands “require effective tools of governance”.
In assessing the constitutionality of the Bill, a key issue in the
s. 35 analysis will be whether the nature of the self-government
provided for in the proposed legislation – i.e., whether it
is based on the inherent rights model or the delegated model –
makes a difference in determining whether potential infringements
are justified. If it does, then, the delegated nature of the Bill,
could be a fatal flaw in the Bill.
Probably with a view to justification, the drafters of Bill C-61
obviously wanted to indicate, in the Bill, that the legislators
were cognizant of, and have accommodated elsewhere, the inherent
right of self-government in bringing forward this legislation. The
6th and 7th recitals of the Preamble state:
Whereas the Government of Canada has adopted a policy recognizing
the inherent right of self-government as an aboriginal right and
providing for the negotiation of self-government; Whereas neither
the Indian Act nor this Act is intended to define the nature and
scope of any right of self-government or to prejudge the outcome
of any self-government negotiation;
But these clauses will not turn the proposed legislation into an
Act based on recognition of the inherent right – this seems
to be the intent of the 7th recital. On the other hand, the explicit
legislative reference to the federal policy recognizing the inherent
right of self-government is an apparent contradiction. It begs the
question: if you recognize it, how can you justify infringing it
with delegated legislation federally imposed? The effect of this
clause is unknown.
Section 3 of the Bill gives further definition to the intended purpose
of the Act, vis-à-vis the inherent right of self-government.
Paragraph 3 (a) says that one of the purposes of the Act is,
to provide bands with more effective tools of governance on an interim
basis pending the negotiation and implementation of the inherent
right of self-government;
The cumulative effect of this and the preambular clauses referred
to above, seems to be that while Canada has a policy ( probably
intended to be nonjusticiable ) of recognizing the inherent right
of self-government, its view is that this right is one which is
contingent on negotiation. Unless and until that right is negotiated
and implemented, the only tools of governance which bands have are
those that are in the Indian Act. The Bill is intended to afford
some interim relief in this regard by providing some more effective
tools of governance, but these are clearly out of a delegated toolbox.
The theory upon which Bill C-61 is based, is at odds with what the
Royal Commission on Aboriginal Peoples (RCAP) said about the inherent
right of self-government. RCAP said that the right of self-government
is an existing Aboriginal right within s. 35 of the Constitution
Act, 1982. The right allows First Nations to make laws on their
own initiative with regard to internal matters, such as those covered
in Bill C-61, without the need for any approval or authorization
by the federal government. The recent Campbell decision of the BC
Supreme Court also decided in favour of the existence of an inherent
right of self-government. In light of these developments, and the
federal policy recognition of the inherent right of self-government,
the fundamental premise and principle of Bill C-61 appears to be
flawed constitutionally.
A significant consideration for First Nation leaders, in deciding
whether Bill C-61 is an acceptable interim solution, is the likelihood
of being able to negotiate an acceptable self-government agreement
in the near future under current policies and processes, namely
under the Comprehensive Claims Policy and the Federal Self-Government
Policy. This in turn requires a critical examination of those policies
and the experiences under them. I do not want to embark on this
analysis here, except to highlight that you cannot look at Bill
C-61 in isolation. It should also be noted, that neither policy
has kept in-step with recent developments in the case-law and both
have been overwhelmingly rejected by the Assembly of First Nations.
The most significant consideration for First Nations in BC however,
is that as a result of the recent Referendum, the provincial government
is legislatively bound to negotiate only delegated “municipal
style self-government” under the BC Treaty Process. This effectively
makes the Bill C-61 “interim” solution a dead-end street
for First Nations in BC.
The operation of section 34 needs to be noted, in this connection.
That provision empowers the Governor in Council (the Federal Cabinet),
within two years of the coming into force of s. 4, to selectively
suspend “any band from the application of this Act or any
of its provisions for a period specified in the order to facilitate
the negotiation and ratification of a final agreement on self-government”.
This would seem to be a tool for Cabinet to “encourage”
First Nations to “negotiate” self-government agreements
on its terms or else face the prospect of self-government under
Bill C-61.
Main Elements of the Band Governance Scheme: Three Codes
The centrepiece of the band governance scheme in the Bill is the
proposal, contained in sections 4-7, to enable bands to adopt three
codes of governance:
(a) a leadership selection code,
(b) an administration of government code, and
(c) a financial management and accountability code.
Though this aspect of the Bill gives bands some delegated self-governing
latitude, in reality, the scope is limited and the procedures for
exercising this authority are extremely constraining. Adoption of
the codes is voluntary: s. 4(1) says a council “may”
propose any of these codes for adoption. However, if a band does
not adopt a code, one will be imposed by regulation, according to
s. 4(3).
- Codes are proposed by band councils: s. 4(1);
- They must be in writing: s. 4(2);
- Section 4(1) requires that said codes be proposed to “eligible
voters”, defined in s. 2(1), as including band members,
18 years of age and over, “whether residing on or off reserve”.
This is to deal with the Corbiere case;
- A code must be put to a vote conducted by council: s. 4(2);
- Adoption of a code requires approval “by a majority of
eligible voters of the band who participate in the vote, and if
those who vote to approve it constitute twenty-five per cent of
all eligible voters”: s. 4(2). Approval only requires a
majority of those who vote, as long as you have a bare minimum
of 25% of all eligible voters;
- Finally, both the proposing of the code [s. 4(1)] and the voting
on the code [s. 4(2)], must be “in accordance the regulations”.
Section 31 authorizes the Governor in Council, in other words,
the Federal Cabinet, to make these regulations. The regulations
have not yet been provided and are not likely to be made public
until the legislation is passed, if it is passed. There are no
guidelines prescribing the manner in which the Cabinet is to exercise
this authority.
The content of the three codes is also prescribed in the Bill.
Section 5 (1) says a leadership selection code “must”
include certain rules and it goes on to list, in paragraphs (a)
through (j), what those rules must address and even imposes limits
or restrictions on the scope of certain of those rules. I do not
want to review all of these paragraphs, but I will give several
examples. Paragraph (b), for example, provides that a leadership
selection code must contain a rule “establishing the mode
of selection of the members of council, as long as a majority of
them at least are elected”. This should be read in conjunction
with paragraph (d), which requires voting for elected members to
be by “secret ballot”. These kinds of provisions limit
the scope of delegated self-government offered by the Bill to a
very narrow compass; and these specific provisions potentially conflict
with customs and norms of First Nations, that may want to enact
rules more consistent with their culture, which may be matriarchal
for instance, in the case of the Mohawk.
A further over-riding limitation is contained in s. 5(5), which
provides that a leadership selection code “must respect the
rights of all members of the band but may balance their different
interests, including the different interests of members residing
on and off reserve”. This is obviously to address the Corbiere
case.
Section 6 prescribes what must be in the “administration of
government code”. The formula is similar to s. 5. In other
words, it lists the matters – mainly administrative in nature
– which the code must address, including meetings of the members
and council meetings, their frequency, the manner of calling meetings
and minutes, etc. This section needs to be read in conjunction with
s. 2(3), which provides as follows:
Unless otherwise provided in this Act, the powers of the council
of a band under this Act must be exercised in conformity with the
band’s administration of government code or, in the absence
of such code, the regulations.
The “financial management and accountability code” is
provided for in s. 7. The matters, which this code must address,
include the preparation and adoption of annual budgets; the control
of expenditures of band funds, purchases, and tendering of contracts;
salaries debts and deficit controls. This section should be read
with sections 2(1) and 8, 9 and 10. Section 2(1) gives a broad definition
of “band funds” to which sections 7, 8, 9 and 10 apply
and includes, among other things, band revenues. Any latitude afforded
in s. 7 is further constrained by sections 8, 9 and 10. Sections
8 and 9 call for the preparation of annual audited financial statements
within 120 days of fiscal year-end and dictate that the statements
“must” set out the remuneration and expenses of council
members and that the statements “shall” be available
to the general public. Section 10(1) provides for the development
of a recovery plan for the financial management of “band funds”
in the event of a deficit, beyond the limits prescribed by the code
or the regulations.
Section 10(3) is a worrisome provision. It empowers the Minister,
at any time, “to carry out an assessment of a band’s
financial position”; and it gives wide discretion –
“if the Minister considers it necessary” – to
impose remedial measures on bands in certain instances, that is,
- When a band’s financial health deteriorates to the point
that the delivery of programs and services is compromised;
- When financial statements are not produced within 120 days;
and
- When the band’s auditor gives a denial of opinion or
an adverse opinion.
I say this clause is worrisome because there are examples across
the country in which the Minister has abused similar powers, such
as in Pikangikum. There is no apparent check on the Minister’s
power under s. 10(3). These types of clauses are usually in contribution
agreements and this allows bands to temper the Minister’s
power by negotiating provisions, which require the power to be exercised
“reasonably”. Section 10(3) makes this matter non-negotiable
and, moreover, strengthens the Minister’s hand by giving this
power a legislative basis. Most of these financial and accountability
provisions could be, and in fact have been, included in federal
contribution agreements up to now. But the contribution agreements
could only deal with funds allocated by the Minister. Bill C-61
actually extends the Minister’s reach to include all “band
funds”.
As aforesaid, if a band does not adopt a code, one will be imposed
by regulation. Section 32(1) says: “The Governor in Council
may make regulations providing for the matters with respect to which
a code may be adopted under section 5, 6 or 7 …”. A
copy of the regulations has not been provided and this significantly
impairs the ability to do a legal assessment of the proposed legislation.
According to s. 32(2), the regulations respecting election appeals
“must provide that an appeal be heard by the Minister.”
This is a continuation of the current situation.
Impact of the Proposal in Bill C-61 to Bring Existing Band
Councils Under the First Nations Governance Act
The proposed legislation is intended to apply across the board,
to all bands, except those exempted from the Act by Cabinet order,
pursuant to s.34, discussed above. In addition, s. 35 says the Act
does not apply to: bands under the Cree-Naskapi (of Quebec) Act,
the Nisga’a Nation, the Sechelt Band, and First Nations under
the Yukon First Nations Self-Government Act.
To make the legislation apply across the board, the drafters had
to find a way to bring existing bands and band councils, provided
for under another Act, the Indian Act, under the proposed legislation.
The legal mechanism, which the Bill utilizes to accomplish this
is obscure, but its impact is very severe, especially on custom
bands, which is discussed later. You need to look at a number of
provisions. The first is s. 43(2), which modifies the definition
of “council of the band” in subsection 2(1) of the Indian
Act. As you will recall, that clause of the Indian Act said “council
of the band” means
(a) in the case of a band to which section 74 applies, the council
established pursuant to that section,
(b) in the case of a band to which section 74 does not apply, the
council chosen according to the custom of the band, or, where there
is no council, the chief of the band chosen according to the custom
of the band;
Section 43(2) of Bill C-61 replaces the foregoing Indian Act definition
with the following:
“council”, in relation to a band, has the same meaning
as in the First Nations Governance Act.
The definition of “council” in Bill C-61 is as follows:
“council”, in relation to a band, means the council
selected by election or custom in accordance with a leadership selection
code or, in the absence of such a code, by election in accordance
with the regulations.
The legal effect of these provisions seems to be to terminate the
continuity of existing band councils, under the Indian Act, both
s. 74 band councils and custom band councils, in order to bring
them under, and make them creatures of, the proposed First Nations
Governance Act. That this is the effect of these provisions, as
I said, is obscure, but this conclusion is unavoidable. considering
the legislation is based upon a delegated model of self-government.
The only way Bill C-61 can work is if existing band councils are
made creatures of the new statute. I do not believe that section
38 is helpful in avoiding this conclusion. That provision says that
“persons who are the members of the council of a band immediately
before the coming into force of its leadership selection code (or
regulations) shall be members of its council from that date till
the end of their existing terms …”. This only provides
for the transition of existing members of council, not existing
councils.
I am not sure what legal effect the purported termination of existing
band councils will have on Aboriginal and treaty rights. It depends
upon whether existing band councils are, or have evolved into, governmental
entities or structures, which are based upon an inherent right of
self-government.
The impact of these provisions needs to be assessed in light of
s. 15 of the proposed legislation. The section is significant and
will be controversial, so I will quote it in full:
15 (1) A band has the legal capacity, rights, powers and privileges
of a natural person, including the capacity to
(a) enter into contracts and agreements;
(b) acquire, hold and dispose of rights and interests in property;
(c) raise, expend, invest and borrow money;
(d) sue or be sued; and
(e) do anything ancillary to the exercise of its legal capacity,
rights, powers, and privileges.
(2) A band acts through its council in exercising its legal capacity,
rights, powers and privileges referred to in subsection (1).
(3) For greater certainty, the legal capacity, rights, rights, powers
and privileges referred to in subsection (1) do not affect the legal
status of a band and, in particular, do not have the effect of incorporating
the band.
(4) For greater certainty, nothing in this section affects the interest
in reserve lands or Indian moneys held by members of a band in common
under the Indian Act or the application of that Act in respect of
those lands and moneys.
The purpose of this provision, on its face, is to clarify that bands
have legal capacity to do the things listed in paragraphs (a) to
(e). However, there are some other effects which may be inadvertent
that are worth noting, especially in light of the impacts indicated
above. Subsection (2) says a band acts through its council, what
is the impact of this given that band councils will be creatures
of statute under Bill C-61?
One of the fears amongst First Nation leaders, when this proposal
was first raised, was that it will terminate the status or existence
of bands, or turn them into municipalities, corporations or non-Indian
entities. (As aforesaid, I believe that this will be a consequence
of, or one of the impacts of, bringing band councils under the proposed
legislation, through an amendment to the definition of “band
council” under the Indian Act.) Subsection (3) appears to
be a response to these fears: it clarifies that “subsection
(1)” does not affect “legal status” of a band
and does not have the effect of “incorporating the band”.
This provision does not solve the impacts on existing band councils
noted above.
There are other questions or concerns about the provision as well.
First of all, what will be the effect of saying that a band has
the legal capacity of a “natural person”? Does this
mean a person other than an Indian? What does it mean to say that
the “legal status” of a band will not be affected? Does
this refer to “tax exempt status” under the Indian Act?
Does it include historic legal status as units of self-government?
Does it include legal status as holders of Aboriginal title, or
Aboriginal and treaty rights? In this regard, subsection (4) says
the section does not affect the interest in “reserve lands”
or “Indian moneys”, but what about Aboriginal title,
and Aboriginal and treaty rights? The section does not say those
rights are not affected. Finally, the reference to the right of
bands acting through their councils, to enter into “”contracts
and agreements” and to “dispose of rights and interests
in property”, is worrisome in that the language is overly
broad and could include entering into treaties or disposing of Aboriginal
title, which is a property right according to Delgamuukw. This would
contravene the Royal Proclamation of 1763.
Special Impact on Custom Bands
There are two kinds of bands under the Indian Act: bands,
which have been the subject of an order under s. 74, whereby its
council is elected pursuant to the provisions of the Indian Act;
and bands to which section 74 does not apply and whose council is
chosen according to custom. There are two kinds of custom bands:
bands who have always been custom and have never been the subject
of a s. 74 order; and bands who were under s. 74, but later reverted
back to custom. Bill C-61 does not appear to distinguish between
the two types of custom bands.
Custom band councils have a unique status under the Indian
Act -- their authority derives from their customs, which are recognized
under the Indian Act. Accordingly, bands, which operate under custom,
especially those that have never been the subject of a s. 74 order,
have a strong basis in law to argue that they possess an unextinguished
inherent right of self-government, which is an Aboriginal right
that is protected by s. 35 of the Constitution Act, 1982.
Custom councils are recognized in the definition of “council
of the band”, under the Indian Act. As previously indicated,
the changes to the definition of “council of the band”
will impact custom bands in a unique way.
Custom bands are required by Bill C-61 to adopt an administration
of government code (s. 6) and a financial management and accountability
code (s. 7), in the same way as s. 74 bands. If they do not, the
regulations will impose such codes upon them. Special provision
is made for custom bands with regard to leadership selection codes.
However, it is clear, from the operation of the new definition of
“council” and subsections 5(2) and (3), that custom
bands are required to adopt leadership selection codes. Under Bill
C-61, “council” “means the council selected by
election or custom in accordance with a leadership selection code,
or in the absence of such a code, by election in accordance with
the regulations.” While subsection 5(1), which prescribes
the scope and content of leadership selection codes, is stated to
apply only to s. 74 bands, and not custom bands, subsection 5(2)
says that in the case of custom bands, “a leadership selection
code adopted by the band must
(a) include the rules required under subsection (1), or
(b) consist of the custom rules for the council’s selection,
by election or otherwise, as they existed on the coming into force
of this section, together with a process for appealing the selection
and a procedure for amending the code.
Subsection 5(2) appears to give custom bands the choice to adopt
a new leadership selection code under s. 5(1), or to stay with their
customs, provided the band also adopts an appeal process and an
amending procedure as a part of their customs. However, custom bands
must go through the same process in adopting a leadership selection
code based on their customs, as s. 74 bands. In other words, as
per s. 4(2), the code must be in writing and voted upon and approved
by a majority of “eligible voters”, etc. Subsection
5(3) gives custom bands two years to adopt a leadership selection
code consisting of their custom rules, otherwise they become subject
to the regulations.
The changes to the definition of “council”, together
with subsections 5(2) and (3), which seem to be directed toward
bringing custom bands into the proposed First Nations Governance
Act, have a legal effect that is similar to the effect on s. 74
bands, although the effect is tempered somewhat. That is, the Bill
affects, and may terminate, the continuity of custom band councils.
There are some serious questions about the constitutionality of
the Bill generally, which need to be explored in more detail; however,
the application of the foregoing provisions to custom bands clearly
raises issues of constitutionality, which I will raise briefly here.
Forcing bands to re-adopt their customs, according to procedures
prescribed by the federal government, would seem to be an infringement;
and effectively revoking a band’s customs if they have not
re-adopted their customs would also seem to be an infringement.
Imposing the requirement for an administration of government code
and a financial management and accountability code may also constitute
an infringement, particularly if a band has customs which conflict
with the matters to be covered by such codes.
In what appears to be a faint recognition that customs may be Aboriginal
rights, which are protected by ss. 35 and 25 of the Constitution
Act, 1982, subsection 5(5), exempts custom bands from the Corbiere
case requirement of having to “respect the rights of all members”.
Other Elements of Bill C-61
There are other aspects of Bill C-61, which are significant,
but that I do not have the time to address in any detail. Sections
16, 17 and 18, augment band by-law making powers somewhat. The proposed
legislation calls “by-laws” “laws”, but
they are essentially by-laws. In other words, the law-making powers
are delegated and basically similar to what a municipality might
exercise. The “law-making” powers are further circumscribed
by the limitation that if band laws are inconsistent with the any
provision of the Bill, the Indian Act or any federal statute or
regulation thereunder, the federal law prevails. Moreover, the law-making
power is limited to making laws for “band purposes”,
and the said laws apply only on reserve.
The Bill contains a fairly lengthy set of provisions on a registry
for band laws and on the enforcement of band laws. Sections 23 to
29 authorize band councils to designate “band enforcement
officers” to enforce band laws, with extensive search and
seizure powers. The rationale behind these provisions needs to be
assessed. The search and seizure powers seem excessive and perhaps
unnecessary, in light of the search and seizure provisions under
the Criminal Code.
The one section of the Bill I believe has some merit is section
11, which deals with complaints and redress. That section authorizes
councils to establish an impartial body to hear and determine complaints.
Such a process would avoid the current recourses that individuals
have of complaints to the Minister or the Federal Court, neither
of which are very satisfactory. Before agreeing to section 11, the
clause would have to be reviewed and re-worked to ensure that it
does not infringe upon Aboriginal and treaty rights, and also to
ensure that it is practical and workable.
I hope this analysis has been helpful. If you have any further questions
please do not hesitate to call me.
Sincerely,
NAHWEGAHBOW, NADJIWAN, CORBIERE
Per: David C. Nahwegahbow
dndaystar@nncfirm.ca
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