'Same old tricks,' lawyer

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Voices are being raised against the various government bills in the suite of First Nations governance legislation proposed by the federal government and a groundswell of sorts can now be seen to be gaining momentum.

In early March, two of the five mainstream federal political parties have come out against it. And, James O'Reilly, one of Canada's most experienced practitioners of Aboriginal law, says it will eventually be proven to be unconstitutional.

"We've said that the Indian Act is unconstitutional and in looking at Bill C-7 I see nothing other than an Indian Act that's not called an Indian Act."

O'Reilly said the governance act was initiated because of an outcry from the public because there were some abuses by a few of the First Nations.

"So they started going in with this third party manager business. They liked that. The best defense is a good offense. So they said we can turn this thing around by blaming the Indian people for mismanaging public funds and the public really likes that."

But O'Reilly points out there is nothing in the Indian Act that gives the government the power to impose third party management.

"They didn't have any power, even under their own legislation, basically the Indian Act, to appoint third party managers and to give people the control over the affairs of Indian people. And of course, it's totally, totally, against this idea of self-government. A basic part of that is you have the right to manage your own affairs. If self-government means anything, it's the right to manage your own affairs. Well, you can't just go in to any company and just appoint a trustee and take over their funds because they're not doing well. If they're doing something criminal you take action against them in the criminal courts."

He said what C-7 is designed to do is, "hidden among all the so-called nice principles they think the non-Indian population will respond to. . . they legitimize the third party management which gives them the big sword but legitimizes and legalizes, according to them, the power to go in to any band and just take over the running of their affairs."

That's the exact opposite of self-government, something the Liberal Party has been on record in favor of since 1995, he said.

"It's the farthest thing away from self-government."

O'Reilly said self-government is assured in Section 35 of the Canadian Constitution and the government says it recognizes it in their 1995 policy on the inherent right of self-government. So "what the hell are they doing undermining it even more than it already is undermined under the Indian Act?" he wondered.

"We think we've got a very strong argument if that ever gets into law. Our problem is it's not quite law yet and in principle you're supposed to have a statute before you can have it declared unconstitutional, but we're trying to get around that. I think we have a couple of good arguments."

O'Reilly agrees with the chiefs who argue that the FNGA is another step away from the treaties that allowed Europeans to colonize Canada without opposition from Indigenous peoples.

"And where does this nation-to-nation relationship come in? And where does this business of the treaty being a partnership and that the way things were going to be run on the reserve to the extent that the feds were involved was going to be a partnership with the consent of the Indian people? I mean, this just goes back to 1876, for instance with Treaty 6, when they were going out and negotiating on the plains. No one, not even the famous Mr. Morris who was the head commissioner, ever mentioned the Indian Act that had been adopted in April of 1876. And you've got the treaty process going on in August and September of 1876. And 125 years later it's the same sort of trick but disguised under nice words. This is such a sham that I'm surprised the general public hasn't twigged to this. I think the Indian people and the [Assembly of First Nations] have tried to bring this out but it asn't come out in that articulated fashion," he said.

"The feds are basically taking the position: 'We are going to judge whether somebody is suited to manage their own affairs or not.' We're back to worse than 19th century colonialism," said James O'Reilly.

Pat Martin, the NDP Critic for Aboriginal Affairs, is a member of the standing committee on Aboriginal affairs. He's the MP for Winnipeg Centre.

During the two-week spring break in the committee hearings from Feb. 27 to March 16, Martin wrote an article that sums up his impressions of what the standing committee is hearing.

"Virtually all the presenters to date have soundly rejected Bill C-7 as offensive, paternalistic, and completely out of touch with the real issues facing First Nations communities," he wrote.

Most presenters have told the standing committee that the secret to addressing the social ills of First Nation communities is genuine self-government, where Native people have genuine control of their affairs.

"None of this is remotely possible under Bill C-7. In fact, instead of ceding jurisdiction and powers to First Nations to govern their own affairs, it imposes a heavy-handed template of governance codes and regulations which undermines their ability to design effective governing institutions that fit community ideals, customs and traditions," he said. "In fact, it actually expands the discretionary authority of the minister and the role of the Crown!"

He said the FNGA will not achieve its stated goals because it ignores the lessons of history.

"If the federal government wants to retain and even enhance its own direction and control over the lives of Aboriginal people as contemplated by Bill C-7, then it must continue to bear primary responsibility for what can only be described as 130 years-so far-of social tragedy under the Indian Act," he wrote.

Comments from another corner show the FNGA bill is under attack from all sides. While some critics say the bill goes too far, the Canadian Allance critic for Indian Affairs said it doesn't go far enough.

Bryan Pallister, MP for Portage-Lisgar in Manitoba, said on March 11, "In the last year, Minister Nault has invoked powers under the Indian Act to intervene in situations at Dakota Tipi and Sandy Bay First Nations," he said. "In the future, under the FNGA, the minister will no longer have any authority to step in to situations that are anything but financial in nature. Any problems, increased violence, election disputes, or allegations of wrongdoing, will be off limits to the minister of Indian Affairs," he said. "Future disputes will be out of bounds for the minister and reserve residents would have only 'chief appointed' ombudsmen to turn to for assistance. This minister is abdicating his responsibilities, which will put people at risk in the future."

Pallister also noted that the committee has been hearing from many witnesses who criticize the bill.

"The Indian Affairs committee has been hearing witnesses express concern about this bill right across the country-concerns ranging from the lack of women's rights to potential abuses of power. Minister Nault's disappearing Act will do little to protect people living on reserves, create transparency, improve accountability and improve the daily lives of Aboriginal Canadians," he said.