Indian Act section contrary to Charter

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The law of the land has caught up with the Department of Indian Affairs. The long-awaited decision in the Corbiere case was handed down by the Supreme Court of Canada on May 20. The court ruled that Section 77 (1) of the Indian Act, which allowed bands to prohibit off-reserve residents from voting in band council elections, was contrary to the equality provisions of the Canadian Charter of Rights and Freedoms.

John Corbiere, the 64-year-old Batchewana Indian Band member who served as chief from 1966 to 1980 and again for one year in 1994 (he was ousted part way through that term for missing three meetings in a row, violating a rarely enforced attendance rule), first won a decision on the equality voting rights issue in the Federal Court of Canada in 1993. The band and the federal government took the case to the Federal Court of Appeal, lost again and then filed a final appeal with the Supreme Court of Canada. The loss there puts pressure on the federal government to change its policy in dealing with off-reserve people.

Corbiere was happy with the decision. He was able to attend a press conference in Ottawa shortly after the decision was handed down only because the Native Women's Association of Canada, an intervenor in his case, paid his way to the nation's capital. The legal battle has taken a financial toll on the Batchewana member. Wearied by his long legal battle, he didn't sound optimistic about how the government would respond to the decision.

"I have to wonder who's going to enforce it," he told Windspeaker. "They have the money and we're over here with the decision."

He said the Federal Court told Indian Affairs the offending section of the Indian Act was unconstitutional in 1993 and yet the government continued to fight him in court.

Regina lawyer Merv Phillips argued part of the case in the Supreme Court. He also was pleased with the court's decision.

"We led the charge as far as the fiduciary duty argument and the Charter argument at the court, and I understand it was successful. I haven't had a chance to read it, yet," he said. "I was honored to be able to make that argument and it was accepted by the courts. That's very important from the viewpoint of the constitutional negotiations that will now go forward. As you know, the judgment has been suspended for 18 months pending the negotiations."

Many observers interpret the decision to mean the federal government is now expected to look for ways to make the Indian Act conform to the Constitution. But Leona Freed, a member of the First Nations Accountability Coalition of Manitoba, thinks there's a way for bands and the federal government to continue to deny off-reserve members the vote.

"They're not going to like this so they're probably going to try to jump out of the Indian Act and into band custom," she said. "The decision probably will be ineffectual if bands start opting out of Section 74 and into band custom. If the chiefs don't like it, the uncaring or corrupt chiefs, they'll opt for band custom."

Merv Phillips said the decision will make it harder for band councils to use custom election codes to exclude off-reserve members.

"They can attempt that and, of course, I don't think we have to believe that First Nations as sovereign nations are going to be behaving in a democratic way," he said. "What's very important is, in terms of the customs circumstances, the election of those custom procedures have to involve and, again, recognize the fiduciary responsibility. The court has said if [custom codes] are adopted, as I understand it, if those are adopted without the proper participation then those too will be set aside."

Harry Daniels is president of the Congress of Aboriginal Peoples, a group that lobbies for off-reserve rights. He had unkind words for any band that tries to sidestep this decision by adopting custom election codes.

"If they do, then I want to tell you, they're just as racist and . . . what can you do with people like that?" h said. "If Indians pass those kinds of membership codes and restrictive elements then they're no better than the people they're fighting, the federal government - they're in league with them. They're discriminating against their own people."

Daniels said 53 per cent of Native people live off reserve and it's time for the government to pay attention to their needs.

"The court has taken the argument that CAP put forward that the government has a fiduciary responsibility for all Aboriginal people, in this case off-reserve Indians, and that they can't vacate that responsibility," Daniels said. "So, if they're going to strike up a Constitutional negotiation process to discuss this and to change that and to facilitate the rights of the off-reserve Indian people then I think CAP has to be intimately involved in that board and the government has to place enough funding."

The federal government has adopted the policy of only dealing with on-reserve residents, Daniels said.

"Everything that the government does is directed on reserve. They're striking up an apartheid system whereby you're an Indian if you're on reserve and if not, you're not an Indian anymore," he said. "They've abandoned their fiduciary responsibility to those Indians and that's the argument we made in the Batchewana case. I don't think this is going to be the end-all for this kind of a thing. It's been happening over the years. You've got to straighten out band councils, how people are elected and how they respond to the needs of off-reserve people."

Indian Affairs is going to have to make a fundamental change in direction as a result of the decision, Daniels said.

"The government has continued to shrink the definition of an Indian. Indians' right to identify themselves have been usurped by the settler governments and Indians are falling prey to it because it benefits some greedy despot on a reserve. It's good for them," he said. "If it gives control to a family, it's good for them. It's regrettable an look, you can't blame some of the people - and I'm not trying to absolve them of blame - but if they've been poor all their lives and all of sudden they're a chief . . . it's like a union leader. This guy has been swinging a wrench all his life and all of a sudden he becomes union leader. He'll kill someone to stay there."

Real democracy and an end to corruption within band council governments are possible if the election process is opened up to all band members, Daniels believes.

"These dynasties have to fall. Democracy must prevail. It has to be one person, one vote. The best person, man or woman, who puts their name forward should win the position and they should establish a more democratic system on-reserve where all Indians are being served and all Indians are treated equally," he said.

The CAP president said the spotlight is now shining brightly on the Indian Affairs department and political agendas designed to limit the government's legal obligation - and its accompanying cost - will no longer be easy to hide.

"They have to act in the best of faith right now. If they don't, we can take them back to court. They don't want to negotiate; they force us into the court system. If they force us into the courts and we win, if their own court system has instructed them to do certain things, what is their recourse? None," he said.

"We didn't invent this. This is their own court system. If they in bad faith deal after this, then it's signalling to me that they don't give one iota of care or have any real compassion or don't really want to do things for Indians, and want to try to absolve themselves of any responsibility for Indians and continue to shrink the definition of who an Indian is."

Jim Sinclair, the former president of Native Council of Canada and now president of the Congress of Aboriginal Peoples in Saskatchewan, was happy with the decision, the result of a process begun when he was CAP president.

"I'm very happy about it. Both government and some o our leadership have been dragging their heels and I think it's time that people moved along and I think this decision will make people realize that they have to do something for themselves. They can't rely on any one person," he said.

But Sinclair has one problem with the way things worked out.

"It's an embarrassment for people like myself who've struggled for so long for basic fundamental rights for our people, where many chiefs and councils over the past number of years have isolated themselves into reserves and forgot about the treaty areas our forefathers signed for and have limited our rights mostly to reservations," he said. "This is a sad state for us when the white man and the white court of Canada has to re-recognize those rights for us and has to re-recognize the treaty areas and put it into perspective that we have the right to vote in those areas and we have the right to full participation regardless of where we live."

Doris Ronnenberg, president of the Native Council of Canada, Alberta said she sees this decision as the beginning of the end of the divide and conquer tactics used by the government against Aboriginal people. She said she wasn't sure how the Indian Affairs minister would react to this decision but added, "I hope she is for the rights of people and the right to vote."

The minister could not be reached for comment. The AFN promised a press release detailing that organization's response to the decision but it did not arrive by press time.