Chiefs flip-flop on objections to off-reserve voting rights

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Several Alberta bands have been fighting for the legal right to unlimited control of their membership lists. They argue it is a matter of self determination, though their critics accuse them of trying to keep others from sharing in the oil wealth the bands possess.

In the Corbiere case, however, the Alberta chiefs and the national chief of the Assembly of First Nations say their objection to new voting regulations that would include off-reserve residents is based on the process used to create the regulations, not the fact that off-reserve members have been given the vote by the Supreme Court.

"Let's make it very clear," AFN Chief Matthew Coon Come said. "We're not saying that our people who are off reserve should not vote. That is not what we are saying. What we are saying is that we need adequate time for consultation, however long that it takes, in order to properly assess the impacts, in order to allow for our people to grasp the impacts of the Supreme Court decision. There has been insufficient financial and human resources allocated to this. We feel that we need time for consultation and we certainly are not against off- reserve members voting in an election."

Coon Come said the draft regulations adopted by the Department of Indian Affairs was done without consultation with the people who are directly affected, and the process is what is being questioned.

But when the Alberta chiefs were asked if the Corbiere decision would be implemented, as-is, if a more satisfactory consultation was completed, a veteran Alberta chief from a territory where off-reserve members have been able to vote since the 1950s said that the chiefs actually object to more than the process.

"It's not only the process but it's something beyond that. It's an extinguishment of our rights," said Chief John Snow, speaking for the Treaty 7 chiefs. "First of all, the Indian Act was written, was made, by the federal government. They never consulted us when the Indian Act came out in the 1800s. It was to control us on reserves. It was a holding place until we were educated to go out into the mainstream society. That was the time when this election regulation was made.

"It was the government who made this Indian Act and who made rulings, regulations on this residency. It's not our thinking. So, I hope you will interpret this right. The chiefs here in their discussions are very much in favor, they've always given rights to their people to vote. It's a free country. We're in a democracy. But I think this one case-Corbiere-is unique. About two-thirds of [Batchewana First Nation residents where Corbiere originated] are living off reserve and one-third are living on and that creates a special problem. This case does not really affect that much right now. It affects some. But eventually over-population of the reserves . . . the reserves aren't expanding so maybe 20, 30, 40 years from now over half the population of various reserves will be living in the city and that's where it's going to present a problem."

Snow also complained that when arguing the Corbiere case "the government was not arguing regarding our treaty rights. So there was a very poor representation in defending our treaty rights when the Corbiere case was presented. The government was not interested in our situation, but in their own situation."

On Nov. 3 the Supreme Court decided not to extend the deadline for Corbiere, and Coon Come expressed disappointment.

"This decision involves much more than simply voting. It will likely affect First Nations governments to the same extent that Bill C-31 did in 1985," Coon Come said. "The AFN fully agrees with the principles of political representation expressed in the Corbiere decision. Our rights as First Nations stay with us whether we live on or off the reserve.

"But this decision was supposed to be implemented in consultation with First Nations. Instead, the federal government is implementing a federally designed process.

"First Naions are uninformed and ill-equipped to deal with the decision. First Nations want to make sure that they are not caught up in further legal battles due to an inability to meet the expectations of citizens living off the reserve. Our governments already face extreme pressures on limited resources. Besides these pressures, the federal government failed utterly in consultations to address bigger issues like the balancing of rights. The inadequacy of resources so common amongst First Nations often is used to accuse our governments of mismanagement, poor management or lack of accountability. This situation will be made worse by the fact that First Nations are left with nothing to guide what they should or shouldn't provide to their citizens. The result could be a flood of further legal actions. Yet, the federal government has refused to consider these factors and has come out with last-minute regulations that are not well thought out and will cause further hardships for our communities and for all of our citizens."

During the first day of a two-day emergency meeting of the Alberta chiefs, their objections to the implementation of the Corbiere decision were not as carefully worded as those presented by Coon Come.

In his opening remarks, Chief Snow said the participation of off-reserve band members could destroy reserve communities.

"You could have an urban Indian as chief, running the reserve from the city," he said. "Our Elders are saying if many of the people are thinking like non-Indians, they could end up selling the reserve."

Chief Dennis Pashe of the Manitoba Dakota Tipi First Nation told the Alberta chiefs that his community was fighting implementation of Corbiere in court.

"I believe the DIA deliberately lost the case," he said. "They didn't argue section 35."

Section 35 of the Charter of Rights and Freedoms deals with the entrenchment of Native rights in the Constitution. It might have been a suitable argument to stop the claim that Section 77 of the IndianAct violated section 15 of the Charter, which deals with equality rights.

Pashe and many other chiefs believe the federal government was looking after its own agenda by not raising - and perhaps, in the process, lending more strength to - section 35 arguments. Pashe pointed out that Bill C-31 was enacted by Canada as a way to address another offence against Section 15 of the Charter and it has caused profoundly troubling effects for First Nations.

"First, C-31 increased the number of off-reserve people," Pashe said. "The department said 'don't worry, they can't vote.' Then they deliberately lost the decision to ensure they could vote."

Indian Affairs regional director general for Alberta, Barrie Robb, was present on the first day of the emergency meeting. As his staff briefed the chiefs on the process of preparing to implement the decision, a visiting Saskatchewan chief tore into Robb.

"I have a hard time looking after my people," Chief Barry Ahenakew of the Ahtahkakoop First Nation told Robb. "We get inadequate funding because INAC only funds the on-reserve population. It's a wonder I'm still standing here as chief and, I'm not giving you guys shit, I'm just telling you. There has to be total funding. If there's not, we'll be in court on that. But it should be given freely and willingly. You guys are living high off the land on our resources."

Robb did not respond.

Chief Snow said it was a waste of breath talking to anyone but the minister and repeated the statement that government intentionally lost the Corbiere case.

Siksika Nation Chief Adrian Stimson told Robb he isn't willing to go along with the Corbiere decision.

"There was no consulting on this Corbiere case," he said. "Maybe with some elite of the AFN, but this was not given to us to look at."

Then Stimson told Robb what would happen next.

"I told you, Barry. I'm gonna break every law you've got and if you want to take me to court, take me to court," he said.

Respected Alberta Elder Fred Cardina then asked to be heard. He hammered the chiefs for waiting until so late in the game to get involved.

"It's up to you chiefs to say 'These are our laws.' Up to this point, you have not done that," he said. "You've been trained, brainwashed to follow the system exactly the way they want. I get so frustrated because I don't see you guys moving."

He said the Alberta chiefs, once the most powerful First Nation organization in the country, had been broken up by money, that greed or desperation in the short term had won out over long term principles, like protection of treaty rights.

Taking up the Elder's charge about the chiefs' 11-hour objections, Robb said, "This issue is now almost 18 months old and we've had a hard time getting attention. We sent information, frankly, 10 months ago through the treaty offices. We didn't get much response."