July 9, 2002

The Honourable Robert Nault
Minister of Indian Affairs and Northern Development
House of Commons
Ottawa, Canada
K1A 0H4

Dear Minister,

Thank you for your letter of June 21, 2002 which is a response to the letter I wrote to the Ontario Members of Parliament and the Chair of the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources concerning the proposed First Nations Governance Initiative (FNGI).

Your letter overlooks the key point about the proposed legislation: namely, that it is terribly flawed. The FNGI breaks the law. Any legislation affecting First Nations emanating from Ottawa must be based on co-operative consultation between First Nations and the Government of Canada. There are two operative words: “co-operative” and “consultation” that must be adhered to and is supported by the Supreme Court of Canada. Legally, that is the only way this legislation such as this could go forward. In the Sparrow decision, Chief Justice Antonio Lamere said:

“ The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, the consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation…”

There is a legal requirement to consult First Nations. Given the magnitude of potential impacts, First Nation consent should have been secured at the beginning and would have prevented the fundamentally flawed process that has produced highly questionable data and information that is intended to meet First Nations’ interests.

In Ontario, the duty to consult was not met and is supported by the attached analysis of the consultation summary reports available on the government’s web site. The analysis shows the following key points:

• Imbalance of consultations and the downgrading of the on-reserve population: the consultation sessions were primarily held in off-reserve and urban locations; 76% (19 of 25) of the consultations were there compared to only 8% (2 of 25) on-reserve. Sixteen % (4 of 25) were held among federal employees of aboriginal descent.
• Far too many federal employees included: The number of federal consultations is twice that of consultations on reserve. Moreover, the number of First Nations consulted in the federal department is equal to the number on-reserve. This is further evidence of bias in the consultations.
• There were too few participants in Ontario: Ontario has the largest status Indian population at 157,062 (off and on reserve) in Canada. The 445 participants at .3% of the total status Indian population in Ontario out of approximately 10,000 who were purportedly involved in the consultations is not representative of the true population of First Nations across Canada. This under weighting of Ontario close to half a percentage point (.3%) of the total status Indian population is a serious deficiency. This is further compromised by the .07% of the on-reserve population that were consulted and which is less than half a percentage point.

These key points are further substantiated in the report, “An Assessment of the First Nations Governance Consultation Process” by Peter Douglas Elias, Ph.D. The report is available on the Chiefs of Ontario web site: www.chiefs-of-ontario.org.

Your statement that preliminary agreement with the Assembly of First Nations (AFN) Executive on how to proceed, which had been reached last November, was overturned by a Confederacy vote in December deserves comment.

• The Chiefs from the 633 First Nations in Canada and whom the AFN represents have the final say in mandate setting on all issues, great or small, through resolutions passed in the Confederacy of Nations or Annual General Assemblies. This includes any preliminary agreements that the AFN Executive may make from time to time.
• A resolution that affirmed the unequivocal rejection of the FNGI process was passed by a vast majority of the Chiefs. Out of 195 votes there were 126 in favour, 49 opposed, and 13 abstentions. The will of the Assembly must be respected. This was the third national resolution passed last year.
• This meant that the government of Canada was duty bound to re-enter negotiation with the AFN to achieve an agreement on how to proceed. It could not be a signal to go ahead without further involvement by the AFN. Going ahead in that way means that your proposed legislation has no status with us - it cannot even if we wanted it to.
• The Confederacy decision was unanimously endorsed at the AFN Special Assembly on Governance held in Ottawa in May 2002. (This was the fourth national resolution.) You were invited to attend that Assembly to make the government’s case on the FNGI. You failed to appear. And I have no doubt that the decisions taken at both gatherings will be reaffirmed at the AFN Annual General Assembly in Kahnawake.

It is important for the government of Canada to realize that the First Nations leaders who are rejecting the FNGI are duly elected and supported by their respective members. As such, the Confederacy and the Special Assembly on Governance have legal and political standing. There is also the moral imperative that drives the First Nation leadership to serve our people. Therefore, the legislation cannot legally proceed, nor should it.

Should the Government of Canada persist with this legislation, we will have no alternative but to challenge it in the courts. We have no doubt we will prevail.

We therefore suggest that the Government of Canada and First Nations step back in the process, sit down together and frame government direction initiated by both of us for First Nations interests. That is the way to achieve many of the goals you say the government wants. It is the only way. It is the better way.

Yours truly,

CHIEFS OF ONTARIO

Charles D. Fox
Ontario Regional Chief

Attachment: Analysis of the Federal Governments Phase 1 Consultation on FNGI

c.c. Members of Parliament in Ontario
Liberal Party of Canada

Chair of the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

Chiefs of Ontario Political Confederacy

First Nations in Ontario

Assembly of First Nations Executive