B.  First Nations Governance Initiative:  Government Action

The January 2001 Speech from the Throne contained government commitments “to [strengthen] its relationship with Aboriginal people” and to “support First Nations communities in strengthening governance, including implementing more effective and transparent administrative practices.”

On 30 April 2001, with Cabinet approval to undertake an incremental approach to reforming the Indian Act, then Minister of Indian Affairs Robert Nault (the Minister) formally initiated “Communities First:  First Nations Governance,” described as a multi-phase process for the development of “governance”(15) legislation.  Over the ensuing months, meetings were held across the country to ascertain the views of on- and off-reserve First Nations groups and individuals on the planned governance initiative (FNGI).  DIAND figures indicate that from May through November 2001, about 10,000 individuals took part in this initial process, whether at one of over 400 meetings across the country, through questionnaires or other means. 

According to DIAND documentation provided to participants, “[t]he objective of [the FNGI] is to provide the tools many First Nation leaders and individuals have called for to run their communities efficiently and fairly”:

Status and band membership, First Nations women’s concerns relating to land,the delivery of programs and services and broad review of the Indian Act were listed among matters not to be covered in the new legislation.

In December 2001, the Minister announced the formation of a nine-person Joint Ministerial Advisory Committee (JMAC), consisting of First Nations and government representatives as well as independent members, “to assist in developing policy proposals for the development of draft legislation,” taking into account the results of the prior canvassing of views on the FNGI.

   C.  Reactions to the FNGI

The Assembly of First Nations (AFN) is a national representative/lobby organization for First Nations people and is particularly closely associated with those on reserve.  Although acknowledging the need for broad change to the existing system, the AFN expressed serious concerns about the FNGI, rejecting the phase one process as fundamentally flawed and questioning whether the FNGI overall is consistent with the rights, needs and priorities of Canada’s First Nations. Several affiliated provincial, regional and local First Nations assemblies, organizations and communities have echoed these views.(17)  AFN resolutions calling for a boycott of the FNGI phase one process and for a joint alternative course of action were succeeded by efforts to achieve the latter.  These were in turn overtaken, in December 2001, by rejection of a proposed DIAND–AFN co-operative workplan on governance legislation and the Indian Act, following which the Assembly’s representative withdrew from the Joint Ministerial Advisory Committee.  On 28 February 2002, AFN National Chief Matthew Coon Come tabled an AFN alternative to the FNGI with the Committee, describing it as incorporating both the Minister’s issues and First Nations priorities.(18)

In a 19 March appearance before the Committee, National Chief Dwight Dorey of the Congress of Aboriginal Peoples (CAP) described his organization as representing “the interests of more than 800,000 off-reserve Aboriginal people living in urban, rural and remote areas.”(19)  According to Chief Dorey:  CAP’s decision to participate in the FNGI phase one process reflected responsibility “to get involved in these issues that directly affect us and a significant portion of the people … we are elected to serve”; declining to take part would have been a disservice to off-reserve First Nations members; although broader changes are necessary in the medium and long term, “some basic reforms to the [Indian Act] can be undertaken quickly” along the lines proposed in the FNGI.(20)  CAP was represented on JMAC.

On 14 March 2002, President Terri Brown of the Native Women’s Association of Canada (NWAC) advised the Committee that her organization, formed in 1974, “is mandated by its national membership to be the national voice for Aboriginal women.”  Ms Brown indicated that NWAC initially supported a moratorium on the FNGI process, in part in order to clarify its own position, since many issues other than the three advanced by the Minister have an impact on First Nations women.  By the time NWAC had considered these matters and decided to request funding in order to participate in the subsequent FNGI process, another organization, the National Aboriginal Women’s Association (NAWA) – formed in October 2001 as a research and policy-oriented body on Aboriginal women’s issues – was involved in FNGI discussions.(21)  NAWA was subsequently represented on the JMAC. 

   D.  Report of the Joint Ministerial Advisory Committee

JMAC’s Final Report was tabled with the Minister on 8 March 2002.  The Report reviews options for legislative reform in the various areas covered by the FNGI, making recommendations in some areas and not in others where consensus was not reached.  Although it is beyond the scope of the present paper to provide an exhaustive review, it may be useful to cite verbatim the Report’s accounts of the Minister’s instructions to JMAC and of the ensuing broad approach that JMAC concluded is best suited to attaining the FNGI’s objectives.

      1.  Minister’s Instructions to JMAC

The Minister has clearly stated that the amendments:

      2.  JMAC’s Conclusions on Legislative Approach

A Bill should be prepared which will:

DESCRIPTION AND ANALYSIS

The First Nations Governance Act (FNGA or the bill) introduced on 9 October, as amended by the House Committee, consisted of a lengthy preamble and 73 clauses divided into four Parts:  Band Governance; Powers of Band Councils; General; and Transitional Provisions, Related Amendments and Coming into Force.  The following review considers selected significant elements of the FNGA, including proposed amendments, with reference to JMAC Report observations and recommendations as well as existing provisions in the Indian Act.  For purposes of clarity, the vocabulary of that Act and of the FNGA is used throughout,(24) and related provisions in the bill are discussed together rather than in numerical order.  Some overlap may be noted.  This review is followed by a brief overview of parts of the Indian Act that remain unaffected by the bill, and of principal JMAC Report recommendations that are not contained in Bill C-7.

   A.  Legislative Approach

In 1997, Bill C‑79, the most recent government legislation intended to reform the Indian Act, died on the Order Paper.  It proposed modifications in a number of areas, but only for those bands choosing to be governed by its optional scheme.  Bill C-7 contained no such optional mechanism and would have applied to all bands.

The JMAC Report observed that technical challenges might be associated with an incremental approach to reforming the Indian Act owing to the interrelated nature of its provisions.(25)  It also recommended that legislative changes resulting from the governance initiative “be by way of amendments to the [Indian Act] rather than by way of a new, stand-alone statute,” in part in order to avoid complexities associated with interlocking statutes and to indicate more clearly “that the amendments are intended to be interim, transitional measures.”(26)  Although the FNGA did effect consequential amendments to the Indian Act, the government elected to proceed by way of “stand-alone” legislation.  Enactment of Bill C-7 would have resulted in most bands being subject to two governing statutes, the Indian Act and the FNGA, for different purposes.  Bands that are currently or that may become participants in the 1999 First Nations Land Management Act,(27) as well as the Mohawks of Kanesatake,(28) would be subject to three interconnected statutes.  These dual or triple regimes could have entailed complex administration and implementation requirements for bands and government.

   B.  Preamble

The FNGA’s substantive provisions were preceded by an eight-paragraph Preamble that would have entered the annual statute book as an integral part of the legislation.  In recent years, statutory preambles seem to be employed more frequently – including in statutes relating to Aboriginal peoples – as a way of establishing a context and rationale for legislation and of underscoring parliamentary intent in enacting it.(29)  Preambles are interpretive rather than substantive, and may on occasion be relied upon by courts seeking to resolve ambiguity in the statute they precede.

   C.  Interpretation and Purpose (Clauses 2-3)

Clause 2 contained relatively few definitions, providing that words and expressions in Bill C‑7 had the same meaning as in the Indian Act unless otherwise indicated.  Those worth noting here include:

The purposes of the FNGA were described as:  making provision for effective band governance “on an interim basis pending … self-government”; enabling bands to gain independence in managing their affairs; reducing ministerial involvement in those affairs; and enabling bands both to respond to their individual needs and to design their own governance regimes in prescribed subject matters, should they choose to do so (clause 3).  Generally speaking, these objectives corresponded to those suggested in the JMAC Report’s sample purpose clause, while that of reducing the Minister’s involvement in band affairs, added by the House Committee, reflected a need identified by both JMAC and First Nations witnesses.

In a significant addition to the bill, the House Committee unanimously voted to insert a non-derogation clause providing, for greater certainty, that nothing in the legislation was to be construed “so as to abrogate or derogate from any existing aboriginal or treaty rights of the aboriginal peoples of Canada under section 35 of the Constitution Act, 1982.”  The absence of a non-derogation provision in the bill, as introduced, had been identified as a key omission by First Nations and other witnesses.

   D.  Provisions Related to Band Governance

      1.  Governance Codes (Clauses 2(3), 4-7, 31-32, 34, 36, 52, 59)

         a.  Proposal and Adoption (Clauses 4 and 31)

Clause 4 was to be new law and played a pivotal role in the FNGA.  It provided, first, that a band council might propose that any or all – or, implicitly, none – of three possible codes in areas of leadership selection, administration of government and financial management and accountability be adopted by the band’s “eligible voters” (clause 4(1)).  Second, adoption of any proposed code required approval by a majority of participants in the vote, provided those voting to approve totalled 25% plus one of eligible voters (clause 4(2)).  The latter clause raised the question of whether it set a sufficiently high threshold on matters of significant import to bands or whether, conversely, the threshold might be too high, given low voter participation in some bands.  Both a council’s proposal of any governance code and the ensuing vote were to be subject to regulations that might be made under clause 31.

         b.  Leadership Selection (Clauses 5 and 52)

Sections 74-80 of the Indian Act currently set out the framework for band council elections, with section 74 providing that bands are brought under that Act’s electoral scheme by ministerial order.  The Indian Act does not prescribe rules for “custom” leadership selection, which has served as the legislation’s default leadership selection process since its inception.(35)  Under federal policy, bands applying to “revert” to custom from the Indian Act’s scheme are typically required to operate under electoral regimes and, since 1988, under written codes.(36)  As mentioned, more than half the bands that remain under the Indian Act are “custom” bands for leadership selection purposes, by election or otherwise.(37)

Clause 52 of Bill C-7 would have repealed the Indian Act’s electoral provisions, while clause 5 prescribed rules that were to apply to leadership selection codes adopted by both section 74 and custom bands.

            i.  Section 74 Bands

Codes adopted by bands governed by section 74 of the Indian Act as of the coming into force of clause 5 would have been obliged to include a minimum of ten elements, of which the components were themselves prescribed in some cases (clause 5(1)).  These elements included:

In this area, the JMAC Report proposed that, while legislation should “clearly set out the basic standards of political accountability,” it should ensure that those standards are “as unintrusive (non-prescriptive) as possible.”(38)  With a few exceptions, such as the absence of criteria defining voting qualifications,(39) the matters set out in clause 5(1) generally corresponded to those recommended by JMAC for band-designed electoral processes.  The FNGA left open the question of how a code’s appeal mechanism might operate in practice.  The matter of selecting a body to which voters might appeal election results could have proved troublesome, particularly for small remote communities.(40)

            ii.  Custom Bands

Leadership selection codes adopted by custom bands would have been required either to include the above minimum elements for section 74 bands or to set out the band’s existing custom rules, plus an appeal mechanism and amending formula (clause 5(2)).  Custom leadership codes, unlike any other governance code provided for in Bill C-7, might only be adopted within three years of the coming into force of clause 5 (clause 5(3)).(41)  This time restriction explicitly placed custom bands under a more onerous requirement than would have applied to non-custom bands and might have been open to interpretation as designed to limit or reduce custom practices.

            iii.  Off-reserve Band Members

Under clause 5(5), non-custom leadership selection codes “must respect the rights of all members of the band but may balance their different interests, including the different interests of members residing on and off the reserve” (emphasis added).  This provision appeared to reflect references in the Corbiere decision to the balancing of rights of on- and off-reserve band members as a possible approach to devising an equitable electoral process for bands under the Indian Act’s election system.  The provision did not extend explicitly to the bill’s custom leadership selection codes, nor did the bill address off-reserve participation in leadership selection in the context of custom bands elsewhere.(42)  The JMAC Report proposed that legislation related to leadership selection “[ensure] that all regimes include the right of all members of bands to appropriate participation and, in particular, are consistent with the Charter …”(43)

            iv.  Choice of Regime

The JMAC Report noted that “[t]he ability of bands to select their own … regimes is likely an aboriginal right, a treaty right, or both.  Imposing a regime on a band that prefers to select its leaders using some other regime would therefore be an infringement of those [section 35] rights.”(44)  Under this interpretation, the single option open to section 74 bands might have risked infringing their right to opt for a custom regime,(45) while the time restriction applicable exclusively to custom bands might de facto have subjected them to a regime not of their selection.  Both conditions were raised as matters of concern by witnesses before the House Committee. 

         c.  Administration of Government (Clause 6)

The Indian Act currently contains various provisions assigning powers to band councils, such as by-law-making authority, and stipulates that the exercise of band and band council powers requires the consent of a majority of electors and band councillors, respectively.  It does not prescribe rules for the administration of band government per se, or address matters such as privacy, access to information or conflict of interest.  For bands under the Indian Act’s electoral regime, procedural matters are addressed to some extent in the Indian Band Council Procedure Regulations,(46) which the JMAC Report viewed as “deficient, … not well known or followed,” and in need of complete revision.(47)

Clause 6 prescribed minimal procedural and other administrative standards for inclusion in any “administration of government” code adopted by any band.(48)  These codes would have been obliged to set out rules relating to:

Generally speaking, the matters targeted for inclusion corresponded to those recommended in the JMAC Report.(50)

         d.  Financial Management and Accountability (Clause 7)

Canadian governments typically operate within accountability guidelines found in legislation, regulations and policy.  The Indian Act does not provide for financial accountability of band governments, for which accountability requirements are found either in their own codes, policies or by-laws or in federal policy, such as the current intervention policy authorized in funding agreements between bands and DIAND.  The requirements of other federal departments providing funding to bands are inconsistent.  Noting that “the capacities of bands, both organizational and financial, to implement enhanced accountability measures will need to be assessed and considered,”(51) the JMAC Report concluded that it seemed “reasonable that legislation could provide the basis for establishing consistent and comprehensive band financial management and accountability regimes.”(52)

Like clauses 5 and 6 in areas of leadership selection and government administration, clause 7 set out minimum standards for any “financial management and accountability” code adopted by any band.  They included rules for preparation and adoption of an annual budget; controlled expenditure of and signing authority for band funds; internal controls for deposits and asset management; various loan-related matters; salaries of council members and band employees; debt and debt management as well as deficit management; and procedures for amending the code.

These standards generally reflected those considered suitable for bands’ financial codes by the JMAC Report.(53)

         e.  Governance Codes vs. Regulatory Default System (Clauses 4(3), 32, 36 )

Provisions at clauses 4 through 7 relating to “band-designed” governance codes did not stipulate a time frame for their adoption.  The transitional provision in clause 36 addressed this matter, stating that regulations under clause 32 were to apply to bands without their own codes three years after the code adoption provision in clause 4 came into force.(54)  Clause 32(1) authorized the Governor in Council to make regulations in all areas in which band-designed codes might be proposed under clause 4, with the exception of custom leadership selection codes.

Accordingly, a band would fall subject to the default regime(s) authorized by clause 32(1), should its governance code(s) not be created, proposed and approved within the three-year window provided by clause 36.(55)  Except in the case of custom leadership selection codes discussed above in clause 5(3), “default” bands were not to be precluded from adopting their own governance code(s) at a later date.(56)

The protracted nature of the legislative process at any level of government raised concerns about whether the bill’s time frame for the development and ratification of complex governance codes by bands with widely varying circumstances would prove adequate, or whether many bands might find themselves governed by one or more default systems, at least initially, owing to insufficient time and tools.  The House Committee did increase the time frame for the adoption of governance codes to three years in response to witness concerns that the two-year period in the bill, as introduced, was not adequate.(57)  Some questioned whether a three-year period would prove more workable from the perspective of First Nations communities; many witnesses had proposed a more expanded time frame, such as five years. 

Should the governance provisions of Bill C-7 have taken effect gradually, as was left open-ended by the bill’s amended coming into force provision (clause 59), the timing issue could have been mitigated for at least some bands.  Although the bill did not provide for such a process, DIAND documentation indicated that it would consult with bands on default regulations, and apparently intended that governance code provisions would come into force upon their passage. Accordingly, a gap was expected between adoption of the bill and the passage of default regulations and coming into force of governance provisions. 

         f.  Ministerial Role in Appeals (Clause 32(2))

As introduced, clause 32(2) required that regulations creating an appeal process related to elective band council positions “must provide that an appeal be heard by the Minister.”  Many witnesses objected strongly to continued ministerial involvement in electoral matters.  Under the government amendment adopted by the House Committee, leadership selection regulations might provide that appeals of council members’ elections or applications to remove council members from office “shall be heard by a person designated by the Minister,” in those cases where communities had not made provision for these matters in their own redress legislation under clause 11, discussed below.  The regulations might also authorize the appointment of electoral officers.

         g.  Exemptions (Clause 34)

Under the FNGA, the Governor in Council might, within three years of the coming into force of clause 4 relating to code adoption, order that a band be exempt from the bill’s application, in whole or in part, for a prescribed period.  Such an order would have excused bands from both code adoption requirements and the application of default governance systems, and might be issued only to facilitate completion of pending self-government agreements (clause 34).  Depending on when clause 4 was to take effect, this mechanism might have been brought to bear, for example, in the case of self-government processes currently nearing completion in British Columbia, Yukon or the Northwest Territories or that might accelerate under the British Columbia treaty process.(58) 

         h.  Observations

The proposed FNGA regime was intended to effect considerable reforms for over 600 bands and band governments.  The JMAC Report commented on the issue of bands’ present capacity to develop new governance systems, expressing the view that

JMAC cautioned that “[i]f there is not an institutional capacity component to this initiative, bands will be forced to privately retain lawyers, accountants, financial officers, and other consultants at considerable expense.”(60)  It suggested that an “independent Institution” created legislatively could fill many functions, including assisting to establish and implement governance practices and draft codes upon request, designing and providing training programs, handling election appeals, undertaking responsibilities related to financial accountability, and so forth.(61)

During the House of Commons first-reading debate on Bill C-7 in the 1^st session of the 37^th Parliament, the Minister touched briefly on the institutional issue, indicating that the bill would “pave the way to create an advisory body to support first nations as they take on added roles to build better communities.  The advisory body could assist with developing codes for governance, leadership selection and financial management, as well as providing a process for complaints and appeals.”(62)  Bill C-7, as introduced, did not provide explicitly for any institution of the sort advocated by the JMAC Report, nor did the House Committee amend the bill to address this matter.  A major Report Stage government amendment, however, proposed creation of the Canadian Centre for First Nations Governance that would:  play a public education role on governance matters; provide communities with various forms of technical assistance in implementing the legislation; develop governance guidelines; offer capacity-building training in governance; and maintain a national registry of band codes and laws.(63)  

It is worth mentioning, in the context of this proposal, a recent short-lived precedent for a non-statutory First Nations governance centre with broad support, research, training and facilitation objectives.  Flowing from the 1996 Report of the Royal Commission on Aboriginal Peoples and the federal government’s Gathering Strength response, a joint initiative of the Assembly of First Nations and the Department of Indian Affairs culminated, in May 2001, in the establishment of the First Nations Governance Institute under a ten-person board of directors consisting of regional First Nations representatives.(64)  The Institute’s federal funding was terminated and its operations suspended several months after its inception.  A number of witnesses testifying before the House Committee on Bill C-7 recommended that it be reinstated.  In the result, the model proposed by the government for Bill C-7 both resembled and differed from the Institute and the independent Institution recommended by JMAC(65) in a number of respects. 

On 4 December 2003, the Minister announced the creation of and seed funding for another non-statutory First Nations Governance Institute, whose objectives are to include promoting and assisting in the development of First Nations’ governance.  It remains to be determined whether this initiative will be retained by current Minister Andrew Mitchell, named 12 December 2003.

The FNGA did not create a “compliance” mechanism to determine if band-designed governance regimes met the legislation’s requirements.  On this matter, the JMAC Report concluded by consensus that “such a requirement is unnecessarily intrusive and costly” and would amount to “nothing more than a continuation of the Minister’s power of disallowance” of band by-laws under the Indian Act.  The Report further noted that band-designed regimes were open to court challenge whether or not a verification procedure existed.(66)

      2.  Financial Management (Clauses 8-10, Clause 59)

Clauses 8 through 10 prescribed additional financial management measures with further implications for bands’ implementation capacities.(67) 

         a.  Financial Statements (Clauses 8 and 9)

Under the FNGA, bands would have been required to maintain their accounts and prepare annual financial statements following accounting principles of the Canadian Institute of Chartered Accountants (clause 8).  The bill also required that bands’ financial statements be audited under that Institute’s standards by an independent auditor (clause 9(1)), and that they include the salaries and expenses of council members (clause 9(2)).

Bill C-7 made provision for enhanced access to bands’ financial statements, stipulating that a band must make its financial statements “publicly available” within a prescribed period, and provide a copy to “any person” paying a fee (clause 9(3)).  The issue of disclosure of bands’ audited financial statements has been controversial.  Currently, no legislated requirements apply.  Government policy specifies that bands must submit annual consolidated audits to DIAND for evaluation of their overall financial status, and make them available to their members.(68)  Although audits submitted to government are generally subject to the Access to Information Act, a band may refuse access to non-band members where the requested audit contains confidential information concerning the band’s private commercial transactions, financial holdings or own-source revenues.(69)

Clause 9(3) did not define the scope of the statements that must be made public, neither stipulating that they must be consolidated, nor that they need detail only public revenues.  JMAC members differed as to how financial management provisions in eventual legislation might deal with this issue.(70)  The Report observed, on the one hand, that information concerning a band’s commercial transactions and revenues unrelated to government transfer payments was vital for band members but arguably “no affair of the general public.”(71)  On the other hand, other levels of government and the many bands that do make consolidated audits widely available do not appear penalized by publication of commercial information.  Given that band members are already entitled to full disclosure, “it may be a small step to require full public disclosure.”(72)

         b.  Financial Breach (Clauses 10(1)-(2))

Any “significant breach” of a rule related to debt or deficit in a band-designed accountability code or default regulation would have triggered a requirement that the band council assess the band’s position and develop a recovery plan for the financial management of “band funds,” to be presented to band members within a prescribed period (clause 10(1)).  Quarterly reports on the plan were to be made until the breach was remedied (clause 10(2)).(73)

The bill did not define “significant breach.”  Under current DIAND policy, a deficit of 8% of a band’s operating budget results in review of its financial circumstances, with the first stage of intervention involving a band-designed and -administered remedial plan under DIAND supervision.  The scheme set out in clauses 10(1) and (2) appeared to combine elements of the existing policy approach and of a JMAC option aimed at ensuring bands a high degree of independence in dealing with their financial situation.  In this regard, while DIAND interventions deal exclusively with moneys transferred under funding agreements, “band funds” referred to in clause 10, as defined in clause 2, appeared to include non-governmental sources of band revenue.

         c.  Ministerial Involvement (Clause 10(3))

The FNGA also authorized discretionary ministerial interventions in bands’ financial affairs.  Clause 10(3), as introduced, allowed the Minister to assess a band’s “financial position” and, if he or she considered it necessary, require “remedial measures” when any of three circumstances became known:  deteriorated financial health compromising delivery of “essential” programs; failure to make financial statements public within the prescribed period; and an adverse opinion by the band’s auditor.  First Nations witnesses and others objected strongly to the statutory entrenchment of the Minister’s existing intervention authority under funding agreements.  A government amendment adopted by the House Committee provided that, in addition to the Minister, “a person or body designated by the Minister” might also undertake the financial assessment, but left the remedial measures phase under the Minister’s sole authority.  A further Report Stage government proposal would have empowered the Minister’s designate to order remedial measures as well.(74)  

Clause 10(3) contained elements of another alternative outlined in the JMAC Report relating to interventions for bands in financial difficulty.(75)  The Report noted that this option “maintains a significant role for the Minister in the financial accountability regime of bands and therefore runs contrary to one of the main objectives of this legislation project.”(76)  JMAC suggested that it would be preferable to assign the intervention role to an independent First Nations institution:  eventual legislation could “provide for a transition and a linkage by designating the Minister as the institution until such time as a First Nations institution comes into being with the capacity to perform this function,”(77) perhaps under anticipated fiscal institutions legislation.  Although the amended clause did allow for intervention by some person or body other than the Minister, it would not appear that this modification addressed witnesses’ underlying criticism of the provision that related not only to the Minister’s continued role in bands’ financial management, but also to the new statutory basis for that role. 

Under present DIAND policy, interventions in a band’s affairs may follow political or social turmoil as well as financial difficulties.  Clause 10(3) appeared to restrict the Minister’s statutory capacity to intervene to financially driven circumstances, but did not preclude continued interventions under funding agreements in other contexts.  The provision did not define the sort of remedial measures the Minister might undertake, set a time limit for ministerial interventions,(78) nor define the scope of the “financial position” in clause 10 that the Minister was authorized to assess.  A government amendment to clause 33 did address these matters.  As introduced, clause 33 provided for very broad authority to make regulations to carry out the FNGA’s purposes.  The amendment adopted by the House Committee set out an exhaustive list defining regulatory powers under that provision, much of which related to clause 10(3).  Under the modified clause 33, regulations might be made specifying:

As amended, clause 33 regulations might also provide that clause 10(3) powers “do not affect any right exercisable” under funding agreements with bands – including presumably the Minister’s right to intervene in specified circumstances – and authorize the withholding of funds payable to a band until remedial measures were in place. 

The JMAC Report underscored that “whatever intervention method is selected, it should ensure that the intervener has the same capacity as the band administration to deal with the full financial picture of a band including trust accounts, commercial ventures, other own source revenues, as well as inter-governmental transfers.”(79)

         d.  Observations

Bill C-7 did not provide for an external auditor general.  The JMAC Report considered that such a body would be premature at this early stage of the development of bands’ governance structures, and that the Report’s proposals provided a comprehensive accountability package.  JMAC expected that bands would function satisfactorily with capacity development help through a First Nations institution, but might wish to establish such an external body to provide independent assessment of their performance at some future date.(80)

The legislation made no mention of “results-based” accountability.  The JMAC Report considered this option, concluding that performance measures for Canadian public institutions remain largely policy-dictated, and that “legislation is not the appropriate vehicle to ensure that program outcomes are achieved.”(81)

      3.  Complaints and Redress (Clauses 11, 33, 39, 41-42)

         a.  Band Process (Clauses 11, 33, 39)

Apart from election appeals to the government,(82) the Indian Act does not currently provide a mechanism for treatment of band members’ grievances related to band administration.  Under Bill C-7, a band council would have been required, within two years of Royal Assent (clause 39), to put in place a law authorizing either an impartial person or body to consider complaints by band members or non-member reserve residents and to undertake remedial measures (clauses 11(1)-(2)).  This represented the only mandatory exercise of band council law-making authority under the FNGA. 

Bill C-7’s redress mechanism, as introduced, applied to complaints (1) alleging breach of a governance code or (2) contesting a discretionary decision “against” a member or resident by the council or a band employee.  A government amendment adopted by the House Committee expanded the grounds for complaint under (1) to include “contravention” or “unfair or improper application” of the legislation, default regulations or certain band laws, and added council members to the persons against whom a complaint might be lodged.  The amendment further provided that a First Nations law under clause 11 might authorize the redress body, when dealing with a complaint based on the conduct of an election or the gravity of a contravention, to set aside a council member’s election or to order a member’s removal from office (clause 11(2.1)).(83)  Bill C-7 prohibited any person or body in a conflict of interest position in relation to a complaint from considering it (clause 11(4)), while a decision from which an appeal could be taken under a governance code, default regulations or other prescribed instruments might not be contested using the bill’s redress mechanism (clause 11(5)).

Many First Nations witnesses criticized the clause 11 redress scheme, not only on the basis of its obligatory nature, but also from a capacity perspective, particularly for smaller or isolated communities.(84)  The question of whether a national Ombudsperson office might prove a more suitable, more impartial structure was also raised with some frequency.  On this topic, the JMAC Report suggested that First Nations members would benefit from an internal process, which could be supplemented by an Ombudsman function carried out by JMAC’s recommended independent Institution. 

During the House Committee’s deliberations, an opposition amendment to create an Ombudsman office to complement the clause 11 redress body was judged inadmissible as a “money” amendment.  A Report Stage government amendment proposed the establishment of the “Office of the First Nations Ombudsman,” with an Ombudsman appointed by the Governor in Council and mandated to consider and mediate only those complaints that were alleged to have been dealt with inadequately by the clause 11 body.(85)  The government-proposed body would thus apparently have resembled a second-level structure akin in some respects to an appeal body.

         b.  External Process (Clauses 41-42)

Bill C-7 opened a broader redress avenue under the Canadian Human Rights Act(86) (CHRA).  Section 67 of that statute has stipulated since 1976 that “[n]othing in this Act affects any provision of the Indian Act or any provision made under or pursuant to that Act.”  The controversial exemption has not entirely prevented band members from gaining access to CHRA mechanisms, as the courts have generally interpreted that the human rights legislation remains applicable to band council activities or policies that are not based on the Indian Act or regulations under it.

In 2000, the report of the federally appointed Review Panel on its comprehensive review of the CHRA recommended that the section 67 exemption be removed, and that an interpretive provision be incorporated in the CHRA “to ensure that Aboriginal community needs and aspirations are taken into account in interpreting the rights and defences in the [CHRA] in cases involving employment and services provided by Aboriginal governmental organizations.  Such a provision would ensure an appropriate balance between individual rights and … community interests.”(87)

Clause 42 of the FNGA proposed to repeal section 67 of the CHRA, thus making its redress mechanisms available to band members in relation to federal and band government actions under both the Indian Act and Bill C-7.  Clause 41 added an interpretive provision along the lines recommended by the Review Panel under which the needs and aspirations of the Aboriginal community affected by a complaint against an “aboriginal governmental organization” were to be taken into account in interpreting and applying the CHRA, “to the extent consistent with principles of gender equality.”

The bill did not define “aboriginal governmental organization” or “principles of gender equality.”  The concept of gender equality does not appear in other federal statutes consulted.(88)  Its inclusion in clause 41 appeared to represent the sort of balancing exercise contemplated by the Review Panel, with specific reference to gender alone perhaps reflecting recognition of the potential prevalence of gender-related issues that might be raised under the CHRA following removal of the section 67 exemption.  Under clause 41, a woman complainant’s rights under the CHRA might be trumped by community interests only to the degree consistent with gender equality principles.

The JMAC Report agreed removal of section 67 should be linked to insertion of an interpretive provision to ensure “aboriginal and treaty rights [are considered] in interpreting and applying the CHRA to bands and band councils.”  It ultimately concluded, however, that repeal should occur “only in the context of the federal government’s comprehensive response to the Review Panel’s recommendations,” which has not yet taken place.  JMAC also expressed concern that elimination of the exemption would result in increased workload for the Canadian Human Rights Tribunal and increased training and resource needs of bands in order to implement the CHRA and defend against complaints.  In JMAC’s view, “[c]onsideration will need to be given to whether band councils will face complaints when they are implementing federal programs,” as well as to the relationship between the CHRA and status and membership issues under the Indian Act.(89)

First Nations and other witnesses raised a number of questions about the interpretive clause at clause 41, describing it as vague, difficult to interpret, potentially unworkable, and in need of clarification as well as broadening of the factors to be considered by the CHRC.  Concern was also expressed with respect to the potential effect of the interpretive clause on collective rights.  Many witnesses echoed JMAC’s concerns about the capacity of First Nations communities and the CHRC to deal effectively with the repercussions of removal of the section 67 exemption.

      4.  Band Government Operations (Clauses 12-14)

The FNGA provided that band councils must make policies and rules related to government operations available to members and reserve residents, including programs and services offered to them (clause 12).  It is not clear to what degree this requirement could have represented an additional burden for band administrators, particularly those from small bands.  In addition, assuming the provision extended to federal operations, programs and services, the federal government would arguably be better placed, from both resource and knowledge perspectives, to provide information about them.

The Indian Act does not currently protect band councils or employees from civil proceedings related to work or office-related activity.  Bill C-7 provided that the liability of council members and band employees would be limited with respect to anything done during the exercise in good faith of any power or duty under the Indian Act, the bill, regulations made under either, any governance code or law under the FNGA or any by-law under the Indian Act (clause 14).

   E.  Provisions Related to the Powers of Band Councils

      1.  Legal Capacity (Clause 15)

Although the Indian Act defines bands and band councils and confers authority on both, it has not, to date, explicitly recognized either as legal persons.  Bands under the Indian Act are considered unique legal entities with somewhat ambiguous status under Canadian law, legal persons for specific purposes under specific statutes but not others.(90)  The JMAC Report concluded that “certain advantages would accrue to bands if their legal status was clarified.”(91)

Bill C-7 proposed that any band under the Indian Act would have “the legal capacity, rights, powers and privileges of a natural person,” including the right to contract, engage in property transactions and legal proceedings, and do anything ancillary to its capacity (clause 15(1)), and that a band’s capacity be exercised through its council (clause 15(2)).  The clause 15(1) definition echoed the general substance of those set out for specific bands under various federal statutes establishing self-government or other regimes,(92) and generally corresponded to one of the options contained in the JMAC Report.(93)

The JMAC Report acknowledged an enduring view that equating bands with legal persons makes them akin to corporate bodies and represents a fundamental change in their status.(94)  It recommended that any changes in this area “must be accompanied by provisions that ensure that [they] do not diminish [bands’] unique nature under Canadian law.  Bands must not be transformed into corporations.”  Similarly, concerns over potentially increased vulnerability of reserve lands and band moneys led JMAC to conclude it was essential that these interests not be affected by any amendments related to bands’ legal capacity.  The FNGA generally reflected both areas of concern.  Although not explicitly acknowledging the unique nature of bands’ legal status, the bill did provide, for greater certainty, that the definition in clause 15(1) neither affected that status nor had an incorporating effect (clause 15(3)), nor did it affect band members’ interests in reserve lands and band moneys under the Indian Act (clause 15(4)). 

Several witnesses before the House Committee maintained the position that it would be more appropriate to define a First Nation’s legal capacity as that of a government or nation rather than that of a natural person.  It was also recommended that the legislation stipulate explicitly that the legal capacity provision would not restrict the inherent right of self-government, Aboriginal or treaty rights.

In relation to a further concern related to the fiduciary relationship between the Crown and bands, the JMAC Report noted that defining bands’ legal capacity “will not affect the general fiduciary relationship between the Crown and First Nations” per se, but that other amendments giving bands greater authority over their interests could alter specific fiduciary duties.(95)  Finally, JMAC noted the need to reconcile the Bill C-7 definition of legal capacity with those in other acts, none of which was amended by the bill.

      2.  Law-making Powers (Clauses 16-18, 33, 37, 51, 53-55, 59)

Under the Indian Act, a band council’s by-law-making powers in relation to reserves may at present be considered analogous in some respects to those of municipalities under provincial legislation, with the council’s authority confined to matters delegated and defined by the Indian Act.  These limitations have long been criticized by bands and representative organizations as out of keeping with traditional law-making practices.  Currently, the Indian Act provides for band by-laws as follows:

The JMAC Report noted that many section 81 powers “seem anachronistic and [do] not address a host of issues” such as landlord-tenant and environmental issues where band councils’ authority might be enhanced.(96)  JMAC members supported the elimination of ministerial authority in relation to band by-laws.(97)

         a.  General Laws (Clauses 16 and 17)

Bill C-7 essentially retained most of the substance of by-law subject-matters currently set out in sections 81, 83 and 85.1 of the Indian Act, while modernizing and consolidating them (clauses 16(1) and 17(1)).  The bill repealed most of the Indian Act’s by-law provisions (clauses 53 and 55), including those defining “money” by-law powers.(98)  Some of the latter would, however, have remained in effect, along with the related requirement for ministerial approval (clause 54).(99)  The legislation would also have rescinded subsection 73(1) of the Indian Act (clause 51), but not the Governor in Council’s broad authority under subsection 73(3) to make regulations “to carry out the purposes and provisions of this Act.”

Clauses 16(1) and 17(1), as amended by the House Committee, altered councils’ law-making scope with the addition of authority over:

The bill made no provision for ministerial authority related to councils’ law-making processes.

Several witnesses before the House Committee took the position that Bill C‑7’s retention of the Indian Act approach setting out an exhaustive list of delegated law-making powers was at odds with the concept of inherent rights. Some recommended that the legislation be amended to acknowledge the underlying inherent right of self-government.  Other specific criticisms related to the bill’s failure to provide for First Nations jurisdiction over education, child welfare and the environment.

         b.  Governance Laws (Clause 18)

In addition to re-working and adding to councils’ existing by-law-making jurisdiction, the FNGA defined new law-making powers related to governance matters that generally appeared to correspond to the JMAC Report’s recommendations for additional council authority in this area.(101)  Clause 18(1)(a), for instance, authorized a band council to make laws related to the establishment, composition and powers of “bodies,” and their relationship to the band.(102)  Such a body might, for example, be established to implement the redress mechanism mandated by clause 11 for the purpose of dealing with band members’ complaints.  The majority of the remaining discretionary authorities set out in clause 18(1) related to topics that were required to be included in governance codes, including elections of council members (c), conflicts of interest (d) and access to information and privacy (e).(103)

Of particular note, clause 18(1)(b) also enabled a band council to make laws for the delegation “to any person or body … of any of the council’s powers” under the bill or the Indian Act, with the exception of those set out in clause 18 itself.  This broadly drafted provision extended, for example, to council powers set out in the bill to propose codes under clause 4 and to make laws under clauses 11, 16 and 17, as well as to remaining by-law authority, allotment of reserve land and other council powers under the Indian Act.  Bill C-7 further authorized councils of two or more bands to make laws for “joint establishment” of such a delegated body and outlining its composition and powers and relationship to the bands involved (clause 18(2)).  It did not define the legal capacity of any delegate entity created either by a single band or jointly, or require that relevant band laws outline procedural measures specific to its creation, such as the prior approval of band electors.(104)

Clauses 18(1)(b) and 18(2) conferred extensive delegation authority.  Government documentation suggested that the combined authority “will be particularly useful in small communities where capacity limitations might otherwise impede implementation of the FNGA.”(105)  On this issue, the JMAC Report noted that the Indian Act makes no provision for any delegation of council jurisdiction and recommended that councils be authorized to delegate “some powers to health boards, tribal councils or entities under the [Indian Act], provided that law-making powers can only be delegated to another elected body.”(106)  The bill did not set conditions related to delegation, and may have expanded on the scope of delegated authority contemplated by JMAC.

      3.  Conflict of Laws (Clauses 16(2)-(3), 17(2)-(6), 18(3))

The Indian Act does not contain explicit conflict of laws provisions per se. Under subsection 81(1), general by-laws may not be inconsistent with the Act itself or with regulations made under its authority.  Bill C-7 specified that in the event of conflict:

The rationale for distinctions in these conflicts of laws clauses, as well as for the noteworthy new clause 16(2) requirement that band laws be compatible with all federal statutes and regulations, is not readily apparent.  This requirement was criticized as a backward step by a number of witnesses.

      4.  Registries (Clause 30)

Under the FNGA, a band was to be required to maintain a registry containing any codes and all laws made by its council under the bill,(107) to provide “all persons” reasonable access to it (clause 30(1)), and to furnish copies to anyone requesting any law or code (clauses 30(5)).  The bill provided that, unless otherwise specified, a band’s code(s) and laws were to take effect the day following their deposit in the band registry (clause 30(4)).  The Minister was also to establish a national registry of all band codes and laws made under the bill and enable access to it (clause 30(2)).(108) 

The JMAC Report favoured a band registry scheme for band laws,(109) as well as “a formal mechanism” (110)such as local or national registration to evidence the adoption of band-designed codes.  JMAC does not appear to have addressed the option of a parallel national registry of either laws or codes.  The rationale for the dual requirement relates, according to government documentation, to ensuring “overall transparency and access … locally and nationally.”(111)

      5.  Enforcement (Clauses 19-29)

Sections 101 through 107 of the Indian Act provide for offences under it and related punishments; peace officer enforcement of a band’s intoxicant by-laws and a few other provisions in the legislation, including seizure and detention of goods; disposition of fines to the Crown for the benefit of the band or its members; and appointment of justices of the peace with authority over offences under the Indian Act.  The JMAC Report observed that problems associated with enforcement of by-laws under that Act include the absence of a ticketing scheme, and the lack of sufficient enforcement officers and prosecutors.(112) 

Bill C-7 proposed to fill certain gaps in and expand bands’ existing enforcement capabilities, while leaving the Indian Act’s existing provisions undisturbed.

      a.  Offences (Clauses 19-22)

The bill would have:

Bill C-7’s ticketing scheme and increased fines were consistent with specific recommendations of the JMAC Report.(115) Some witnesses before the House Committee objected to the amplified penalty provisions.

      b.  Inspection and Search (Clauses 23-29)

A common criticism of Bill C-7 during House Committee hearings related to the bill’s original enforcement provisions which authorized, in the view of many witnesses, unduly sweeping search and seizure powers for band enforcement officers seeking to monitor compliance with or to investigate potential offences against band laws.  Witnesses expressed concern that, in the absence of additional resources, First Nations communities lacked the capacity to meet the funding/training needs associated with implementing the bill’s enforcement measures.  The provisions were seen as subject to abuse and to legal challenge under the Charter guarantee against unreasonable search and seizure or under rules governing civil liability.

In the result, the House Committee adopted a series of government amendments apparently designed to respond to these and other concerns by more clearly delineating the intended scope of enforcement activities, in particular inspection activities, under Bill C-7.  These modifications

As the foregoing suggests, Bill C-7’s modified enforcement provisions defined the exercise and scope of inspection powers more restrictively than was the case under the bill’s original scheme.(116)  Search powers, allowing for their rewording, appear to have remained substantially unchanged, while providing for their exercise by enforcement or peace officers from provincial or other policing bodies.  This modification may reflect an attempt to mitigate the concern some witnesses raised with respect to the potential for abuse in the conduct of searches. 

The question of whether the amended search provisions would have been less likely to attract Charter scrutiny appears moot.  The JMAC Report observed, as was reflected in witness testimony, that band enforcement officers “would need to receive adequate training on the proper exercise” of search and seizure powers.  The Report further noted that resolving serious issues related to the enforcement of band laws would involve providing more funding, and would require discussion with other federal departments.

   F.  Unaffected Parts of the Indian Act

Most of the Indian Act would have remained intact.  The bulk of significant amendments to it proposed by Bill C-7 and discussed under previous headings related primarily to electoral provisions, band by-laws and regulatory authority,(117) while a few others repealed a handful of provisions long considered to be particularly archaic.(118)

Parts of the Indian Act not already discussed that were to remain substantively unaffected by the FNGA include:

   G.  Principal JMAC Report Recommendations Not Included in Bill C-7, as Amended

With reference to the legislative approach proposed in the JMAC Report,(121) it would appear that significant recommendations not pursued or contained in Bill C-7 relate to:

COMMENTARY

Divergences in governmental and First Nations’ perspectives on the First Nations Governance Initiative emerged during the pre-legislative period beginning in April 2001.  A substantial body of documentation, as well as the overwhelming majority of testimony given before the House Committee, attest that they continued to differ sharply as to the objectives, merits and effects of Bill C-7 throughout the abbreviated legislative process.

From the government’s viewpoint, the legislation reflected commitments to strengthen First Nations governance made in the January 2001 Speech from the Throne, and was essential to address an unacceptable situation affecting First Nations communities arising largely from a deficient Indian Act regime.  Bill C-7 was thus intended to remedy significant gaps in that regime that have prevented First Nations communities and governments from managing their own affairs effectively and responsibly, by providing tools that would enable First Nations communities to develop economically and to exercise autonomous decision-making power with reduced government involvement.  For the government, the FNGA was also a pivotal component of a broader reform plan to modernize First Nations governance systems that included the 1999 First Nations Land Management Act as well as anticipated fiscal legislation.  It was not intended to replace the historical treaties, undermine ongoing treaty and self-government processes, or affect the government’s fiduciary responsibilities toward First Nations people.

The Assembly of First Nations and other First Nations bodies representing regions across the country viewed Bill C-7 differently.  At its Annual General Assembly (AGA) in July 2002, the AFN confirmed its position on Bill C-7’s predecessor, Bill C-61, in a resolution condemning the legislation as a violation of the inherent right of self-government and committing the AFN to oppose it.  The resolution called upon AFN Chiefs to ensure this opposition was heard, including through the parliamentary process.  A separate resolution gave notice of First Nations’ intention “to strengthen and sustain our own systems of governance, to enact and enforce our own laws without interference from federal government and legislative policies and regulations.”  The AGA endorsed the February 2002 First Nations Plan as an alternative to Bill C-61, now C-7.  In November 2002, a Special Chiefs’ Assembly called on the Prime Minister to withdraw Bill C-7 and other then‑pending pieces of legislation, and undertake a renewed partnership with First Nations.  Subsequent assemblies to October 2003 reiterated the AFN’s opposition to the FNGA.

In condensed form, some of First Nations’ primary criticisms were that the bill:  was drafted without consultation or consent following a flawed process; was based on subsection 91(24) of the 1867 Constitution, rather than on a rights-based approach under section 35 of the Constitution Act, 1982; represented an attack on historical treaties and a threat to the inherent right of self-government under section 35; imposed more bureaucratic control over the lives of First Nations people without resolving long-standing social and economic issues; failed to address urgent needs of First Nations communities in matters such as health, housing and employment, or the concerns of First Nations women; imposed a one-size-fits-all approach with numerous additional requirements for all First Nations communities and no parallel commitment to provide necessary resources or supports; served the interests of government by off-loading federal responsibility; increased the costs of governance for First Nations communities; and failed to provide measures that would enable First Nations communities to develop their economies.  Before the House Committee, many First Nations spokespersons maintained that the imposition of Bill C-7 would be especially onerous since their communities had already developed standards through their own process.  Others argued that, in any event, prescriptive legislation such as Bill C-7 was not necessary to bring about administrative reform for communities in need of it.

Excluding those matters on which the House Committee adopted amendments, as discussed in preceding pages, specific criticisms of the bill raised by First Nations spokespersons, often from a capacity/cost perspective, included the 25% threshold for code adoption (clause 4); legislating authority for ministerial interventions in First Nations communities’ financial affairs (clause 10); the requirement that all communities create a redress mechanism (clause 11); the legal capacity clause (clause 15); and the repeal of section 67 of the CHRA (clause 41). 

In July 2002, the Federation of Saskatchewan Indian Nations initiated a Federal Court challenge to Bill C‑7’s predecessor, Bill C-61, alleging, inter alia, that the FNGA process breached the government’s fiduciary duties toward First Nations and seeking a declaration to that effect.  In March and August 2003, government applications to prevent the case from proceeding were dismissed.

First Nations opposition to Bill C-7 was not universal.  The National Chief of the Congress of Aboriginal Peoples described the legislation as a move to address obsolete sections of the Indian Act, and as positive for the CAP constituency, providing off-reserve members the means and process to exercise their right to vote in band elections.  According to the President of the National Aboriginal Women’s Association, positive aspects included the bill’s human rights protections, which would improve the lives of women on reserves, and band councils’ authority to pass laws without ministerial interference.  Individual First Nations members expressed support for the legislation’s accountability provisions, in particular, or, more generally, for its practical solutions.  Others, acknowledging proposals such as removal of the CHRA exemption, considered that positive steps had been undone by bad process.

Non-Aboriginal editorial opinion, although mixed, tended to favour the FNGA, describing the bill as “a promising start,” “necessary and overdue,” setting “the right course,” “a straightforward, sensible outline,” “addressing native grievances,” “[providing] a better framework” for First Nations governments and not to be feared by them.  It was suggested that although the bill had important positive effects, the government should admit that it “really is about assimilation.”  Less positive commentary observed that because drafting the FNGA was neither collaborative nor inclusive, the bill should be allowed to die to enable government and First Nations to resume discussions to resolve outstanding issues, and that the Minister had “lost any hope of winning the support” of the Chiefs for the FNGA.

Available commentary from the academic sector, also mixed, tended to be more critical of Bill C-7.

APPENDIX

SELECTIVE OVERVIEW OF INDIAN ACT HISTORY*

1876 to 1985

The first consolidated Indian Act (the Act) enacted in 1876 reflected the government’s preoccupation with land management, First Nations membership and local government, and its ultimate goal of total assimilation of Canada’s Aboriginal population.  Despite frequent modifications over the period from 1876 to 1951 in areas such as settlement of western reserves, leadership selection,(1) enfranchisement(2) and prohibition of traditional practices, its underlying principles related to civilizing, assimilating and protecting Indians remained unchanged.(3)  The amendments in question generally increased government control over and reduced autonomy for Indian bands.

From 1946 through 1948, a Special Joint Committee of the Senate and House of Commons reviewing the Act heard of poor living conditions, government intrusion in band affairs, unmet treaty obligations and other concerns.  Its ensuing report reflected few Indian priorities; the Committee proposed revising the Act “to remove many of its coercive measures without altering its assimilative purpose.”(4)  In the result, the amended 1951 Act did not differ a great deal from its predecessor, preserving its key elements while reducing the role of the Minister of Indian Affairs (the Minister) in band government somewhat and increasing autonomy in reserve management.

Participants in consultations on possible further revisions to the Act in the 1960s stressed the need to honour special rights, address historic grievances and allow greater Indian involvement in policy-making.(5)  Instead, the government issued its 1969 White Paper on Indian Policy, which was withdrawn in 1971 in light of First Nations groups’ rejection of the policy’s proposed repeal of the Act and termination of distinct “Indian” legal status.

Aboriginal and treaty rights were recognized and affirmed in section 35 of the Constitution Act, 1982.  In 1983, a Special Committee of the House of Commons conducted a landmark study of Indian self-government.  Indians appearing before the Penner Committee criticized the Act, inter alia, because it lacked measures enabling them to manage their own communities, while the then Minister listed government authority over band powers and assets; limitations on reserve land use; and the ambiguous legal status of bandsamong the Act’s constraints.  The Committee concluded that the Act’s policy basis was “antiquated,” proposed that a framework for self-government be legislated and recommended against amending the Act as an approach to self-government.(6)

1985 to 1997(7)

Enacted in 1985, Bill C-31 aimed to eliminate discrimination based on gender and marital status in the Act’s registration provisions,(8) reinstate or recognize those who had been excluded from status under those provisions, and empower bands, for the first time, to assume control over their membership.(9)  Bill C-31 also increased bands’ by-law authority over, for example, residence on and development of reserve lands.  Ensuing rapid growth in the status Indian population, with increased demands upon community and government resources, and varying capacities to transmit status to offspring owing to different categories of registrant are among Bill C-31’s ongoing controversial effects.  Those associated with the bill’s membership provisions also persist.(10)

A multi-phased review of the Act from 1986 to 1990 that featured some consultation with Indian organizations focused on a number of areas for reform, with a view to proposing optional legislative changes that would enable individual bands to decide when they were ready to take on increased responsibility.(11)  As the broader review continued, the 1988 “Kamloops Amendment” (Bill C-115) clarified the status of conditionally surrendered or “designated” reserve lands and granted band councils taxation authority.  In 1993, DIAND-supported working groups of chiefs narrowed the range of priorities for legislative action that bands might opt into to three areas:  lands, forestry and moneys.  The 1999 First Nations Land Management Act is the only one of these initiatives to have resulted in final legislation to date.(12)

In April 1995, the then Minister embarked on a process to amend the Act, assuring leaders that only changes with First Nations support would proceed.(13)  Strong negative reactions to September 1996 proposals from segments of First Nations leadership resulted in some pre-introduction revision to Bill C-79, the Indian Act Optional Modification Act, which was tabled in the House of Commons in December 1996.  As its title implies, the bill would have allowed bands to opt into – but not out of – its package of changes to the Act.  These related to, inter alia, reserve lands, bands’ legal capacity, band council elections and law-making authority and rules of succession.  In the constitutional context in which its changes were being proposed, Bill C-79 also contained a non-derogation clause under which neither the Act nor the amendments were to be construed as abrogating or derogating from existing Aboriginal and treaty rights, including the inherent right of self-government.

Following first-reading debate, the House of Commons Standing Committee on Aboriginal Affairs and Northern Development held hearings on Bill C-79 from February through April 1997.  In the main, First Nations representations rejected the bill on process and substantive grounds.  Common general concerns related to the pre-legislation consultation process; differing First Nations priorities; retention of ministerial powers;potentialeffects of opting in; effects onFirst Nations’ inherent right of self-government and constitutionally protected Aboriginal and treaty rights; and the Crown’s fiduciary obligations toward First Nations.  Concerns with specific aspects of the bill included its low opt-in threshold and definition of bands’ legal capacity.(14)  Bill C-79 died on the Order Paper in spring 1997.

The November 1996 RCAP Report recommended enactment of an Aboriginal Nations Recognition and Government Act, which

*  This overview draws heavily on previously prepared documents by the author and by former Parliamentary Research Branch analyst Jill Wherrett.

(1)  The evolution of the Act’s system of elective government is summarized in a 1991 paper prepared by Wendy Moss (Cornet) and Elaine Gardner O’Toole entitled Aboriginal People:  History of Discriminatory Laws, BP-175E, Parliamentary Research Branch, Library of Parliament, Ottawa.

(3)  See J. Leslie and R. Macguire, The Historical Development of the Indian Act, 2nd ed. (Ottawa:  Department of Indian Affairs and Northern Development, 1979); W. Daugherty and J. Madill, Indian Government Under Indian Act Legislation 1868-1951 (Ottawa:  Department of Indian Affairs and Northern Development, 1980); J. Taylor, Canadian Indian Policy During the Inter-War Years, 1918-1939 (Ottawa:  Department of Indian Affairs and Northern Development, 1984).

(4)  J. Miller, Skyscrapers Hide the Heavens:  A History of Indian-White Relations in Canada (Toronto:  University of Toronto Press, 1991), p. 221.

(5)  S. Weaver, Making Canadian Indian Policy:  The Hidden Agenda, 1968 – 1970 (Toronto:  University of Toronto Press, 1981), p. 5.

(6)  House of Commons, Special Committee on Indian Self-Government, Indian Self-Government in Canada:  Report of the Special Committee, Minister of Supply and Services, Ottawa, 1983.

(7)  Developments of recent years related to the Act and not discussed in this paper are surveyed in a June 2001 Parliamentary Research Branch paper prepared by the author entitled The Indian Act, TIPS‑17E, revised in June 2001.

(8)  The intention was to bring the Act in line with the equality rights guarantees in section 15 of the Canadian Charter of Rights and Freedoms, which came into effect in April 1985.

(9)  Previously, the sole requirement for band membership was Indian status.  Within certain prescribed limits, Bill C-31 authorized bands to define their own membership criteria.

(10)  A constitutional challenge to Bill C-31’s membership scheme has been in effect since 1986:  L’Hirondelle v. Canada, Federal Court of Canada File Nos. T-66-86 A and B, or Sawridge Band v. Canada (commonly known as the Twinn case).

(11)  See DIAND, Lands Revenues and Trusts Review:  Phase I Report (Ottawa:  Ministry of Supply and Services, 1988) and Phase II Report, 1990.

(12)  S.C. 1999, c. 24.  The legislation and background to it are discussed in an October 1998 document prepared by Jill Wherrett, then of the Parliamentary Research Branch, and entitled Bill C-49:  An Act providing for the ratification and the bringing into effect of the Framework Agreement on First Nation Land Management, LS-324E, Parliamentary Research Branch, Library of Parliament, Ottawa.  Under this legislation, land-related provisions of the Act cease to apply to signatory First Nations communities that adopt prescribed land codes.  As of July 2002, 5 of 14 participating communities had done so.

(13)  Possible amendments circulated to First Nations leaders in September 1995 related to reserve lands, natural resources, estates, Indian moneys, elections, by-laws and education.

(14)  Bill C-79 and related Committee proceedings are reviewed in an April 1997 paper prepared by the author and entitled Bill C‑79:  An Act to permit certain modifications in the application of the Indian Act to bands that desire them, LS-280E, Parliamentary Research Branch, Library of Parliament, Ottawa.

(15)  Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, Volume 2, Restructuring the Relationship, Part One (Ottawa:  Ministry of Supply and Services, 1996), p. 319.