National chief, minister spar over governance

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The Canadian Human Rights Commission, in its freshly released annual report, has called for the government and First Nation leaders to come to a meeting of minds on the best way to modernize the Indian Act. In considering the comments made at the Beyond the Indian Act conference held in Ottawa on April 17 and 18, that may be a lot to ask.

Just days after the report's release, the minister of Indian Affairs and the Assembly of First Nations national chief squared off to state their very different approaches to improving the lives of Native people.

Robert Nault and Matthew Coon Come spoke on successive days at the two-day conference. The speeches broke a recent lull in the battle over First Nation governance.

Coon Come presented the First Nations Plan, his alternative to the minister's First Nations governance act initiative, on the first day. The minister mentioned the national chief's remarks during his speech the next day, but only briefly.

The governance battle gets down to money and power. First Nations' leaders say their people were pushed off their land and denied a chance to share in its riches by the newcomers from Europe. The Indian Affairs minister and his department admit this. The fight, it appears, is over how much the government is willing to spend to repair the harm and who gets the final say.

Even though Coon Come believes a constitutional amendment is required to properly recognize the relationship between Canada and First Nations, he said he'd settle for a legislative solution. He also urged the minister to "dust off" the final report of the Royal Commission on Aboriginal Peoples.

Coon Come noted that he was speaking on the 20th anniversary of the Charter of Rights and Freedoms. He noted the 17 words of section 35.1 of the Charter enshrined Aboriginal rights. He added that those 17 words still do not have much meaning in the way the Canadian system functions.

"No other group in Canada has had to wait 20 years before they could exercise a recognized right," he said. "Our governance work at the AFN is based on implementing section 35. It is a 'nation-to-nation' approach."

The national chief said the minister is basing his governance approach on Section 91.24 of the Constitution Act (formerly the British North America Act) that gives the federal government, as opposed to the provincial governments, control over "Indians and lands reserved for Indians." There's no mention of any powers given to Indians in 91.24. The national chief argued that a section 35 approach would be less paternalistic.

While the minister only wants to deal with financial and operational accountability, powers and authorities, elections and leadership selection and legal standing and capacity, Coon Come urged a wider approach.

"Our position is that these four narrow areas do not even require a legislative initiative. They can be dealt with through other means," he said.

He noted that previous studies conducted by the government of Canada have already concluded that trying to fix the Indian Act is a potentially dangerous exercise.

"Tinkering with archaic and outmoded legislation is like trying to fix an old, broken-down motor. At some point, you're better off just leaving it alone. It is not a good investment of time, energy or resources. Let's build a new one," he said.

He said the AFN's First Nations Plan would be a better approach.

"It is based on diversity, and provides for First Nations to work on their own priorities at their own pace. It also deals with First Nations standards of consultation and approval. Our principles include informed consultation and consent for outcomes, principles noticeably absent from the proposed governance act process."

The plan looks at "four streams of change"-nation re-building, re-distribution of lands and resources, treaty implementation and new fiscal relationships.

Coon Come said the paternalism of Section 91.24 was what had doomed previous efforts to improve the lies of Aboriginal people.

"Let me quote you an observation about the philosophical underpinnings of 91.24: 'Our Indian legislation generally rests on the principle that [First Nations] are to be kept in a condition of tutelage and treated as wards or children of the state... .'

"Harsh words? That is from the Canadian government, from the Department of the Interior annual report for 1876. I paraphrased the term 'First Nations' -the report actually says 'aborigines.' That is perhaps one of the purest, most honest expressions of the 91.24 mentality we have seen. It says we are not nations. Forget about our sovereignty, our political, judicial and cultural traditions," he said. "It says we are children, 'wards of the state.' We must be lifted up out of our misery to a 'higher civilization' so that we can 'assume the privileges and responsibilities of full citizenship.'"

Coon Come said the time to stop fighting over jurisdictional issues is long past.

"We have communities in crisis. Our people are trying to deal with bread and butter issues-in some cases life and death issues. Canada consistently ranks near the top of the best countries in which to live, yet First Nations in Canada rank a distant 63rd on that list," he said. "But the proposed First Nations governance act will do nothing to address these urgent crisis issues. It will not stop one more suicide. It will not build one more house."

"The process willfully ignores previous consultations with First Nations. It ignores the broadest, most comprehensive consultation ever: the federally funded, $58 million Royal Commission on Aboriginal Peoples report. It ignores Indian Affairs' own survey of First Nations people, who said they want to talk about their communities and their quality of life. They want to talk about protecting rights, not enforcing bylaws."

He said the minister's process is out of step with First Nation priorities and goals.

"It would be irrelevant except for the fact that it is dangerous. Itis a threat to our inherent rights and our treaty rights. The minister says this is not the case. Yet whenever we ask him to back up that claim with a legal analysis or opinion, his officials tell us 'there isn't one.' So either the claim is baseless, or they won't share whatever analysis they have. We take little comfort from either scenario."

Coon Come said the 91.24 approach does not give proper recognition to Aboriginal and treaty rights, will not pass tests set out by the Supreme Court of Canada and will lead to more, not less, litigation.

Nault has repeatedly said he is looking for a way to relieve the court of having to decide basic questions.

"The minister would have us believe the First Nations governance act is the only game in town. If that's the case, it is a dangerous game," Coon Come said. "It will not pass the Supreme Court test. And if we hold it up against our plan, it will not pass the First Nations test."

The next day, the minister's remarks were clearly aimed at countering some of the national chief's criticisms.

"No one would be happier than I would be if tomorrow every First Nation in Canada signed self government agreements that would allow us to relegate the Indian Act to the dustbin-a relic of an earlier time and outdated ideas," the minister said. "But wishing won't make it so. We can't afford to wait another 60 years for such agreements to be negotiated or for new treaties to be worked out. We can't wait, and the younger generation of First Nations peoples will not wait, for inherent rights to mean more than words on a page."

He focused on the problems with the Indian Act at first and then turned his attention to parts of the AFN plan.

"The fact is that this act never contemplated the day when First Nations would stand as partners in our society, when they would take their rightful place and play their full part in the life of this country. The Indian Act took away traditional systems of Aboriginal government and replaced them withone alien to their culture. And because it was premised on the assumption that First Nations would gradually be absorbed into the larger Canadian society, the act was silent on many key areas," he said. "This isn't just my opinion or the opinion of the government of Canada; it is the opinion of First Nations themselves. In a recent poll of First Nations, 71 per cent of respondents agreed that providing the tools for good governance will improve conditions for economic and social development. And 68 per cent agree that conditions for economic and social development will be improved by strengthening the accountability of First Nations leaders."

He said he could fix the act and make progress on treaty rights.

"And let's take a closer look at just what setting aside the Indian Act would mean in real terms. It would mean perpetuating the vacuum of governing structures in the Act. In other words, we would continue with a system under which there is no requirement for a band council to have an annual budget; no requirement for conflict-of-interest guidelines; no provision making First Nations legal entities and therefore unable to borrow money on better terms. It would mean leaving in place a system, in which there are no rules protecting band public servants, who can be hired and fired at the whim of each incoming council. It would mean perpetuating a system with no redress for anyone who disagrees with a band council's decision, other than by going to court," he said.

"Some might argue that we should simply implement Section 35 of the Constitution and Inherent Right Policy. As I said earlier, we are moving forward on this front, but anyone who has spent five minutes at the negotiating table knows that Section 35 and the Indian Act are not like a light switch."

He urged First Nation leaders to work with him.

"There are some Aboriginal leaders who have suggested that we fight it out in the courts, perhaps they were encouraged by recent decisions from the Supreme Cou