Developing a Community Constitution

1. Developing a Community Constitution

2. What is a community constitution? • A “core institution” of governance and arguably the most powerful tool to develop in order to move away from governance under the Indian Act and through the “post colonial door” • The fundamental law (rules) of any Nation setting out – who is a citizen of the Nation, its values, the structure of its government and allocating power among its parts

3. What is the purpose of a community constitution? The purpose of a constitution is: • To provide consistency, stability and accountability in the Nation’s governance over time • For example: Is harder to enact and amend than other laws • For example: Reflects deep-rooted consensus • To reinforce confidence in the Nation’s government, both with its citizens and third parties (e.g., other governments, the general public, business community, etc.) • To assert and confirm the autonomy of the Nation

4. Developing our constitution • The Nation will need to consider what is appropriate to include in the constitution and what is not. Constitutions can vary both in content and length. • The process to develop a constitution is just as important as the contents of the constitution itself. • The constitution should embody community consensus as much as possible. In designing the process to develop a constitution some questions to keep in mind are: • Who should be involved in developing the constitution? • What is the role of advisors? • How should we ratify the constitution? • How do we ensure legitimacy of the process?

5. Developing our constitution cont’d… Consider some of the challenges of the present Indian Act system that the constitution might address. For example: • Establishing appropriate institutions of government • Requiring transparency of government • Ensuring accountability of leadership • Supporting an effective administration • Maintaining community safety • Providing certainty for economic development • Delineating the rights and responsibilities of your citizens • Expressing your cultural and traditional beliefs

6. Content of the constitution Some questions to ask when considering the content of the constitution: • To what extent do we want to reflect culture and traditions in the constitution? • What institutions of governance do we want? • To what extent is it important that an external audience understand our ways of doing things? • How much participation by citizens do we want? • What is an appropriate division of powers between our institutions of government? • Will decision-making be vested in one body? Do other decision-making processes need to be considered as well?

7. Elements to consider in the constitution • Founding Provisions • Description of Lands • Citizenship • Rights, Responsibilities and Freedoms of Citizens • Institutions of Government • Law Enactment • Meetings • Conflict of Interest • Financial Administration • Adjudicatory Bodies • Referendums • Transitional Provisions • Amendment

8. 1. Founding provisions • Sets out the core values of the community (e.g., respect for the natural environment and the land, sustainability, culture, rights and title etc. • Most important part of the constitution taking into consideration views of elders, youth and all community citizens • Provides direction to the Nation’s leaders in their actions and creation of laws • Guides all decision-making in the community and interpretation of laws passed by the government

9. 2. Description of lands • Describes in general terms the geographical extent of the territory it applies • This description is often in the founding provisions Questions to consider: What is the extent of our territory? Does the constitution apply to our reserve lands or to the broader traditional territory? What are the considerations for how the constitution might apply to existing First Nations (i.e., reserves) and its traditional territory (i.e., off-reserve)?

10. 3. Citizenship • Establishes rules to determine who is a citizen of the First Nation • First Nations’ citizenship rules are distinct from who is eligible to be registered as an ‘Indian’ under the Indian Act (status) Question to consider: What criteria would you see for becoming a citizen of your Nation? How would this be different, if it is different, from determining membership in your band today?

11. 4. Rights, responsibilities and freedoms of citizens • Identifies the rights and benefits of citizens such as: • participating in government, • being able to live in the community and • to receive services • The rights, responsibilities and freedoms we identify can: (1) clarify or expand upon the rights and freedoms all Canadians enjoy under the Canadian Charter of Rights and Freedoms and (2) can speak to the unique nature of our collective rights and their relationship to individual rights • The constitution can also set out what is expected of the individual as part of the collective (i.e., responsibilities) Question to consider: What is your understanding of the rights and responsibilities of citizens?

12. 5. Institutions of government • Establishes the framework for government, setting out the institutions of the government, what each institution is responsible for and the allocation of power among them. It may provide some detail on how the governing body is selected (e.g., chief and council) • There are many ways to create government. The key is for the Nation to create a system for choosing its government that meets the Nation’s values and needs • Can also establish community expectations for the governing body and set out principles for how the governing body must act Question to consider: What are our current institutions of government and what should they be in the future?

13. 6. Law enactment • Sets out the authority of particular institutions to make laws or by-laws • Can set out how laws or by-laws are initiated (e.g., by the governing body or by citizens through a petition etc.) and actually made (e.g., the procedures – how many readings, or if they have to be presented to or voted on by citizens etc.) • Some laws or by-laws may have special requirements depending on the source of authority for the law or by-law and this may be set out in the Constitution (e.g., laws that deal with fundamental land matters) Questions to consider: How are laws enacted today? What procedures do we follow in making them? How do we want to do this in the future?

14. 7. Meetings • Can set out rules as to when and how the governing body or the citizens meet and a general requirement for holding meetings • Rules regarding meetings are very important in providing accountability and transparency of government Questions to consider: For what purposes are meetings required today and how effective are they? For what purpose do we need meetings in the future and what, if any, rules should govern those meetings? Does this need to be set out in the constitution?

15. 8. Conflict of interest • Can provide that the Nation will have rules that ensure the governing body and others with decision-making powers are subject to conflict of interest rules • The rules could be in the constitution itself or required to be in a law or policy of the Nation Questions to consider: What conflict of interest rules do we have today? Do we need different rules? And what, if any, rules should be in the constitution?

16. 9. Financial administration • Ensures responsibility for protecting financial resources of the First Nation. This is usually the governing body (e.g., chief and council) • Sets out principles and core provisions • May require the Nation to have a financial administration law addressing the core provisions (e.g., required annual budget, deficit controls, restrictions on expenditures, and periodic reporting requirements including the annual audit, permitted investments, level of debt, penalties for breech etc.) Questions to consider: What financial administration laws/by-laws or polices do we currently have in place? Are they meeting our needs? What should be provided for or actually included in our constitution?

17. 10. Adjudicatory Bodies • Depending on the type of governance structure being put in place and the powers of the Nation, the constitution might include provisions for adjudicatory bodies • This is particularly important when the Nation is responsible for aspects of the administration of justice • Such provisions may establish that the governing body can establish bodies to, for example, hear disputes, or set up the institutions of justice in the constitution itself Questions to consider: What type of dispute resolution methods do we use today? What type of disputes will need to be addressed in the future? Who will be responsible for adjudicating disputes? What type of bodies might we need to establish to hear and if necessary adjudicate disputes?

18. 11. Referendums • Sets out the requirements for holding a community referendum • Process and procedure may be similar to the process for holding of elections and would typically be set out in a separate law • May be different thresholds for different types of decisions • There should normally be an appeal procedure Questions to consider: What rules do we follow today when making decisions as a community? If we hold community votes what rules do we follow? Are these rules meeting our needs? What rules, if any, should be in the constitution?

19. 12. Transitional Provisions • Given that the constitution of a Nation will supersede and replace any structure of governance that preceded it, transitional provisions may be necessary • Might include rules allowing for the continuance of the previous governing body until the new governing body is selected in accordance with the constitution • May allow for certain parts of the constitution to be phased into effect Questions to consider: How and when would our constitution be implemented (e.g., part of self-government arrangements, treaty, or is it independent of any negotiations with Canada)? What parts of the constitution should come into effect immediately or be delayed?

20. 13. Amendment • All constitutions have amending provisions • Usually a constitution will be amended in the same way it was initially adopted • For example: by a referendum of the citizens where 50% plus 1 of those electors voting in the referendum vote in favour of the amendments • The provisions will include how amendments can be initiated • For example: by a citizens’ petition, by the governing body, etc. Questions to consider: What threshold should be used to approve an amendment to the constitution? Who should be permitted to initiate an amendment to the constitution?

21. Some Lessons Learned from other Nations Keep it simple • Do not have overly prescriptive rules in the constitution • Remember the constitution will be harder to change than most other laws • Keep the language simple and clear– use people that know how to draft Be Creative • No one size constitution fits all circumstances, so avoid ‘cookie-cutter’ approaches and be wary of borrowing too much from others • Look to your own conventions, practices and traditions first • The community will decide the content of the constitution not its advisors Ensure community involvement • Ensure there is an open and inclusive process. Look to the best ways to involve all parts of the community and to create safe spaces for resolving any controversial issues Take your time • Do not rush the development of the constitution • It is too important

22. When can we develop a constitution? • Constitutions are developed by our Nations as part of a comprehensive self-government initiative (whether inside or outside of the BC treaty-making process) • Many of the core elements of constitutions are found and developed through Indian Actor sectoral governance initiatives: • For example: custom election codes, membership codes, section 81 by-laws, etc. under the Indian Act • For example: institutions of governance and financial management under a land codes under the First Nations Framework Agreement on Land Management or the Fiscal and Statistical Management Act • Constitutions can be developed outside of a comprehensive self-government initiative

23. When can we develop a constitution? The “Just do it” approach: • A Nation does not have to wait until they have a self-government agreement with Canada or are part of a sectoral governance initiative to develop a constitution • The “just do it” approach has proven a very powerful exercise for some Nations although there are some risks: • For example: some citizens and others governed by the constitution may not recognize its authority given the continued application of the Indian Act and other federal laws • There is a need to develop a mechanism so that when a First Nation, or a group of First Nations, develops and adopts a constitution as ratified by its citizens, those First Nations would be able to remove themselves from a significant portion of the Indian Act and be recognized as a ‘self-governing’ Nation