Canada threatens rights with First Nations Governance Act

OTTAWA ? Indian country does not mysteriously stop and start again at the 49th parallel. American Indian nations and their northern cousins face many tribal, clan and familial relationships and what impacts one group potentially affects the other in very personal ways. From this perspective, the proposed First Nations Governance Act (FNGA) in Canada also affects Indians in the United States.

Robert Nault, Minister for Indian Affairs and Northern Development, is spearheading the FNGA for the stated purpose of increasing accountability among the First Nations, defining the structure of tribal governments and determining how elections are conducted. Nault has been quoted in Canadian media as saying he does not want to wait another 60 years for First Nations' sovereignty agreements to be implemented.

But outraged native leadership considers the bill an infringement of its sovereignty. Leaders do not view it as appropriate for moving to aboriginal autonomous government.

Roberta Jamieson, elected chief of the Six Nations of the Grand River in southern Ontario, told Indian Country Today that the act does include some measures that work toward accountability and Minister Nault's other goals. But she called it flawed because of glaring omissions. She said that the rights of the First Nations are guaranteed in the modern Canadian constitution of 1982, which she described as a major victory for Canada's aboriginal peoples.

"And now the Minister would have us believe that that didn't happen," said Jamieson. "That's why reaching back to the Indian Act, pulling it forward and tinkering with it as a blueprint for our future just doesn't cut it, and it shouldn't cut it with Canadians either. Because if our constitutional rights can be ignored, who's next?"

One of the more "insulting" characteristics of the bill, she said, would allow tribal governments to pass ordinance-type legislation to restrict noise, public conduct and intoxicants. Any other tribal law, however, that is deemed by the federal government to be in conflict with its own laws is subject to being struck down arbitrarily.

In another area of concern, the proposed new law would dictate the structure of Indian governments and elections down to legislating who is and who is not allowed to vote. It would create the right for those elected governments to be sued. This differs greatly from the highly valued principle of "sovereign immunity" among tribal governments in the United States. This centuries-old legal term includes the principle that tribal governments, as sovereign entities, cannot be sued without their consent.

Jamieson said that several legal challenges to the bill are under way. One argues that the bill offends Section 35(1) of the Canadian constitution, which enshrines the aboriginal peoples' "collective rights," including self-government.

Another challenge is based on Canadian case law. The recent trend requires that any proposed legislation that offends, degrades or infringes upon the rights of the First Nations can only take place after a great deal of consultation. That consultation comes in the form of a First Ministers' conference, a meeting between the premiers of all the Canadian provinces and the Prime Minister, in partnership with the First Nations. The proposed FNGA does not take this into consideration, said Jamieson.

She added that it might come down to a political act of defiance should the government proceed as it has.

"I think it may come to a choice point about that, this bill, if they're determined," said Jamieson. "I hope not. I don't even want to go there in my thinking."

Another aspect of the Canadian politics, based on the British parliamentary system, will heighten tensions even further. The ruling Liberal Party holds a majority of seats in the House of Commons, the lower house of Canada's bicameral legislature. Government bills, like the FNGA, are debated but are enacted relatively easily. Legal challenges, party member defections to the opposition and the voluntary withdrawal of a bill by the government are the only ways to keep a bill from becoming law.

The latter option is most unlikely considering, as Jamieson observed, that Prime Minister Jean Chretien was minister of Indian affairs in 1969 under the first Pierre Trudeau administration. This government delivered its now infamous "White Paper" policy that called for the termination of the Department of Indian Affairs and Northern Development and would have place First Nations under the authority of the Provinces. The 1969 "White Paper" was blocked by the efforts of the First Nations.

"And so many of us want to repeat that lesson," said Jamieson. "We'd rather not be on the hill or in the courts. We'd rather be working hard at home."