Governance under the Indian Act Naiomi Metallic

Governance under the Indian ActNaiomi Metallic CESD 3216 – CESD and the Law January 25-26, 2010 Part 4

Warm-up activity • How much do you know about the Indian Act? • How does the governance system in the Indian Act resemble other governance systems in Canada? How is it different? • Do you think that the system of governance set out under the Indian Act presents any obstacles for economic development in your community? If so, what?

Part 1: Governance under the Indian Act Frances Abele, Like an Ill-Fitting Boot: Government, Governance and Management Systems in the Contemporary Indian Act, 2007, p. 3: “The Indian Act appears to be a legislative fossil. It reflects administrative and organizational practices that were characteristic of public institutions in the early and mid-twentieth century, but that have been modified and superseded in other governments. … Today most Canadian governments and other organizations rely upon collegial decision-making and policy development, policy research, human resource development, management accounting systems, and citizen engagement. The Indian Act does not mention these things, and the basic provisions do no leave much room for them. … When the Indian Act is considered in this light, it resembles an ill-fitting boot that pinches in all the wrong places and provides no support where support is need the most.

Federal control  the group of Indians it deals with • Feds control what it will consider to be a relevant political entity in relations to Indigenous peoples 2(1) … “band” means a body of Indians (a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after September 4, 1951, (b) for whose use and benefit in common, moneys are held by Her Majesty, or (c) declared by the Governor in Council to be a band for the purposes of this Act;

What’s missing? • Right of Indigenous people to decide for themselves on what political basis they will engage with other levels of government: • As Nations • As Districts • As provincial units • As Wabanaki people

Federal control  Indian identity • Indian status – s. 6 • Membership within a Band (subject to Band developing its own membership code after Bill C-31) – s. 10 & 11 What’s missing? • Right of Indigenous people to determine their own identity and membership / citizenship.

Federal control  Reserve Land 2(1) “reserve” means a tract of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a band, and 18. (1) Subject to this Act, reserves are held by Her Majesty for the use and benefit of the respective bands for which they were set apart, and subject to this Act and to the terms of any treaty or surrender, the Governor in Council may determine whether any purpose for which lands in a reserve are used or are to be used is for the use and benefit of the band.

Federal control  Reserve Land (cont’d) 37. (1) Lands in a reserve shall not be sold nor title to them conveyed until they have been absolutely surrendered to Her Majesty pursuant to subsection 38(1) by the band for whose use and benefit in common the reserve was set apart. • Crown subject to fiduciary duty when dealing with reserve land, and generally cannot sell land unless surrendered with consent of the band.

Federal control  Reserve Land (cont’d) • But, Crown has an expropriation power too (i.e., can take the land without consent): Taking of lands by local authorities 35. (1) Where by an Act of Parliament or a provincial legislature Her Majesty in right of a province, a municipal or local authority or a corporation is empowered to take or to use lands or any interest therein without the consent of the owner, the power may, with the consent of the Governor in Council and subject to any terms that may be prescribed by the Governor in Council, be exercised in relation to lands in a reserve or any interest therein.

Federal control  Reserve Land (cont’d) • No actions related to the management of the reserve lands can be undertaken without INAC approval, but a cautious delegation of power is provided for: Control over lands 60. (1) The Governor in Council may at the request of a band grant to the band the right to exercise such control and management over lands in the reserve occupied by that band as the Governor in Council considers desirable. Withdrawal (2) The Governor in Council may at any time withdraw from a band a right conferred on the band under subsection (1).

What’s missing? • Land provisions are basic tools of land development and management and they are not in the hands of the Band government. • Since basic function of government is the authoritative allocation of commonly held resources, this is a feature of the Indian Act that will tend undermine band governments • Nothing in Act that sees modern land management, and nothing regarding economic development except the most basic.

Federal control  Indian Money and Finance • “Indian moneys” must be used for the benefit of Indian individuals or the band – the Federal cabinet decides what is for their benefit: Indian moneys to be held for use and benefit 61. (1) Indian moneys shall be expended only for the benefit of the Indians or bands for whose use and benefit in common the moneys are received or held, and subject to this Act and to the terms of any treaty or surrender, the Governor in Council may determine whether any purpose for which Indian moneys are used or are to be used is for the use and benefit of the band.

Federal control  Indian Money and Finance (cont’d) • With consent of the Band Council, the Minister can authorize and direct expenditure of revenues from resource extraction or economic activity, from capital acquisition, and of social payments of various sorts (s. 64-66) • Section 70 authorizes the Minister of Finance to advance loans to bands, through the Minister of Indian Affairs. • Under section 83, a band council can make money and tax by-laws, but these are subject to approval of the Minister.

What’s missing? • All these provisions draw a line of accountability from the Band Council to the Minister or his agents. • They do not create a specific role for the electors in approving or disapproving budgets, or in overseeing expenditures. • There are no references to management accounting, public auditing, or the use of financial control as a management or development tool.

Federal control  Governance • How decisions are made: Exercise of powers conferred on band or council 2(3) Unless the context otherwise requires or this Act otherwise provides, (a) a power conferred on a band shall be deemed not to be exercised unless it is exercised pursuant to the consent of a majority of the electors of the band; and (b) a power conferred on the council of a band shall be deemed not to be exercised unless it is exercised pursuant to the consent of a majority of the councillors of the band present at a meeting of the council duly convened.

Federal control  Governance • How Chief and Council are selected  • whether a Band can select its leadership through custom or has to follow s. 74 of Indian Act: 2(1) … “council of the band” means (a) in the case of a band to which section 74 applies, the council established pursuant to that section, (b) in the case of a band to which section 74 does not apply, the council chosen according to the custom of the band, or, where there is no council, the chief of the band chosen according to the custom of the band; 74. (1) Whenever he deems it advisable for the good government of a band, the Minister may declare by order that after a day to be named therein the council of the band, consisting of a chief and councillors, shall be selected by elections to be held in accordance with this Act.

Federal control  Governance • If not custom election rules, Indian Act dictates: • That there is 1 Chief and maximum of 12 councillors • Length of term (s. 78(1) - 2 years) • Who can vote (s. 75 - members, over 18 yrs, no longer resident requirement per Corbiere) • Who can run (s. 77) • How elections should be run (s. 76 and Indian Band Election Regulations, C.R.C., c. 952) • How leaders are removed (s. 78(2))

Federal control  Governance • Indian Act dictates what by-laws a Band Council can make, all except by-laws on intoxication, are subject to Minister’s approval (s. 81-86) • Section 73 authorizes the federal Cabinet to make regulations in a variety of areas of reserve life

What’s missing? • The Indian Act contains no mention at all of a Band administration or staff, though numerous tasks are assigned to federal bureaucrats. • The Indian Act is silent about the following matters that in principle would seem to be relevant to Band government, governance and management: • internal communication, • internal accountability, • policy research and analysis, • community relations, • leadership, • staff recruitment and development, and • organizational design.

Courts impose some standards… • Leonard v. Gottfriedson (1981), British Columbia Supreme Court: …the chief and councillors of a band are in a position of trust relative to the interests of the band generally, the band’s assets and the members of the band. • Because of this, courts have said Chief and Council owe a fiduciary duty to the Band and its members. This requires: • Avoiding conflicts of interest • Fully disclosing any personal interests or conflicts relating to Band Council dealings • Deal with band assets on the same standards as any public official making decisions about public property • In certain circumstances, when making decisions with regard to band assets, conduct meaningful consultation with band membership.

But many gaps in terms of setting out good governance procedures • When members have conflict with decisions of Chief and Council, what recourse is available to them? • Do First Nation people have more, less or the same number of options for recourse available to them? • Can the gaps identified above interfere with economic development? If so, how? • What are some strategies to improve the system of Band governance under the Indian Act?

End Wela’lioq Naiomi Metallic Burchells LLP 1801 Hollis Street, Suite 1800 Halifax, NS B3J 3N4 t. 902.423.6361 f. 902.420.9326

Governance under the Indian Act Naiomi Metallic