Note: I started doing an analysis of Bill S-212 a few months ago. It is very lengthy and it took me quite a while. Then I noticed that the senate had taken it off the order paper and was not proceeding with it so I didn’t post my analysis. Now I understand it is a topic of discussion at BCAFN and an option the BC Regional Chief wants to pursue. I assume the same discussion may take place at the National AFN AGA in July in Whitehorse so I am posting this now. if this is not the case, then it is an example of federal legislation and an attempt to legislate self government.
This is in two parts. The First part is my flagging the big issues in the Bill. The second part of this is what is in the act itself, taking it out of legal language in an attempt to make easier to understand.
I had read Bill S-212 when it first came out as Senator Gerry St. Germaine said it was his last act of being a senator and I was curious about it. Then, I was at the Beyond s. 35 Conference in Vancouver and Regional Chief Jody Wilson-Raybould told the delegates that she had been part of drafting Bill S-212. I was quite taken aback to hear such a thing as I had no idea that had occurred and I certainly had seen no consultations with First Nations communities on what would go in the draft. I am fairly well connected so the fact that something like a jointly drafted piece of federal legislation with the Senate and BC Chiefs did not get any profile in the communities was surprising.
When I raised the question of mandate, the Regional Chief referred me to two resolutions you can find at www.bcafn.bc.ca that she says approves her involvement in the drafting of the legislation. See resolutions 04/2011 and 01(e)/2012 which approve a legal strategy that is not on the website for good reasons and talk generally about this topic. As she is accountable to the Chiefs, I leave that to them for their consideration but Jody is also the portfolio holder for National AFN on governance and I am not sure if there was involvement from that position that would mandate her to do this work on behalf of all of AFN First Nations.
I read Bill S-212 again and it reminded me of the First Nations Land Management Act with the requirements to have a verifier approve a constitution and all the requirements were listed of what needed to go into a constitution. The Bill also reminded me of the First Nations Financial Transparency Act as it had all the conditions of “accountability” and “transparency” embedded in it. Most of all it reminded me of the mandates of the Federal government in treaty. Not a lot of First Nations input in it, just a conglomeration of the existing federal framework. The only thing of note was the fact that was different from other initiatives was that First Nations could have their own police force and courts. My thought was that is good, but I had to ask how will First Nations afford to be able to support their own justice system and will the federal government provide the money to be able to do that?
Other things which caught my attention in the Bill was the fact that even though you have a constitution that provides for law making authority under certain heads of power, s. 17(1) and (3) requires you to give notice to the Minister that you want to pass a law and then THE FIRST NATION MUST ENTER INTO NEGOTIATIONS WITH THE MINISTER REGARDING THE TERMS AND CONDITIONS RESPECTING THE EXERCISE OF THE LAW MAKING POWER. S. 17(2) does allow the Minister to say that no agreement is required. S. 17(5) then gives power to the Minister to pass any regulations that are needed to give affect to the agreement. If a First Nation gave notice on all 29 areas of jurisdiction, wonder how much manpower the federal government would have to devote to one First Nation, let alone another 600+ of them. Practically speaking, this would take a really long time including how long it would take to get a regulation passed. Again, the question of who would pay for the negotiations arose as a practical question.
The only heads of power you don’t have to negotiate the extent of power with the Minister deals with internal governance issues such as who is a citizen and elector, what and how is the governing body and what is their powers, how are referendum and meetings held, conflict of interest and financial management and accountability which must have all the provisions within the Act in it. The main areas of governance have to be negotiated power by power with the government.
In order to have any law making power, you must negotiate an agreement with the Minister, and then your law making power must be according to that agreement. Then the Minister passes a regulation to give it effect. And that is self-government? It is like negotiations for treaty, arguing over the extent of law making authority and which law has precedence-the government always wants to limit jurisdiction.
What happened to the inherent right to self government? First Nations have always maintained that as our right. What is the inherent right to self government? The inherent right of First Nations governments is jurisdiction arising from their existence in Canada prior to the arrival of the Europeans. This is far from that considering you have to negotiate every little power you may be “permitted” to have. And how is this Recognition of Self Government? Rather it is recognition of a need to negotiate Self Government powers. The courts have upheld the fact that there were pre-existing indigenous legal orders and that space must be made in the Canadian legal system as such so why would a First Nation want to negotiate piece by piece jurisdiction? Might as well be in the treaty process.
Further to demonstrate the how little Recognition there is in this Act, the Recognized First Nations has the CAPACITY of a NATURAL PERSON, not a government. This is what Final Agreements and Self Government Agreements says as well. No where in any law is federal, provincial or local government laws referred to as having the capacity of a Natural Person. This is insulting to First Nations to have in a RECOGNITION OF SELF GOVERNMENT ACT to only have the capacity of a person.
The only other area I want to highlight before getting into what is in the Act, is under s. 37 (1) and (2) where the Act talks of transfers of federal money to the Recognized First Nation. It says the transfers are to promote equal opportunities for the well being of citizens of the Recognized First Nation, further economic, social, cultural and linguistic development and to ensure the recognized First Nation can provide public services at levels reasonably comparable to those available to other Canadians. Federal transfers are in part recognition of the debt owed to First Nations for taking over lands and resources without compensation. It is to reflect the fiduciary obligation of the government to First Nations and many other reasons. The federal government right now does not provide public services at a level reasonably comparable to other Canadians but they expect the First Nations to bring them up to standard and maintain them. We are talking infrastructure, housing, education, drinking water…
But what is even more interesting is s. 37(2) where the government is legislating their policy that if you make your own money known as Own Source Revenue or (OSR), it will be deducted off your federal transfers. This is a total disincentive to First Nations to make money and removing the onus of the federal government to provide money to First Nations.
I wanted to illustrate these main points right up front, but I will now go into the Act in its entirety so that you can understand how it works. (this section is rather long as the Act is very long, so you can skip to those sections you really want to understand.)
DEFINITIONS (will only explore those that are different from current law)
First Nations Lands: Means a) lands which the First Nations has established aboriginal title through an agreement with the Crown or a declaration issued by a court (never seen an agreement where Crown agrees on aboriginal title) b) reserve lands c) any lands set aside as reserve lands in future d) lands that the legal title is with Her Majesty and set aside for use and benefit for the First Nations including reserves (why this is necessary I don’t know unless the government has plans to make lands other than reserves). And e) lands acquired or owned by the First Nation before or after it becomes recognized and the Governor in Council (GIC) declares them to be First Nations lands. So if a First Nation bought fee simple land, the GIC would have to declare them to be First Nations lands under this Act.
Governing Body: The governing body of the Recognized First Nation or the council of the band under the Indian Act.
Recognized First Nations: Means any First Nation that is recognized, or an amalgamation of First Nations or the division of a recognized First Nation.
PURPOSE OF ACT s. 4
To provide for the recognition of self governing First Nations BY ESTABLISHING A MECHANISM TO
a) Recognize the RIGHTS and POWERS of First Nations and their governments, institutions and other bodies
b) Support establishment and exercise of powers by First Nations governments.
Note on purpose: This act is not about Recognizing Self Governing First Nations but to put in place a mechanism to negotiate the exercise powers by First Nations.
1. First Nation puts together a proposal for self government and then holds a referendum that its eligible voters vote on.
2. Proposal must have the following
• Identification of First Nation (guess we don’t know who we are-or maybe government doesn’t?)
• Name proposed (in case you want to change First Nation name)
• What lands First Nation has
• Proposed constitution
• Process to approve proposal through referendum
• How many voters you have
• Who will be the “electoral officer” and back up names
3. Constitution MUST HAVE:
• Statement of values and principles
• Who is a citizen and how do you decide who is a citizen
• What/who will be the governing body and how many people, and what the powers, duties and function of body will be
• Conflict of interest ules
• Law making powers (can only be what is authorized in Act)
• How laws will be passed and made public
• Financial management and accountability that
i) are done in accordance with generally accepted accounting principles (GAAP) ( as they are now)
ii) statements audited by an independent auditor
iii) Include how members of government body are paid including expenses
iv) Must be given to citizens within 6 months of year end and given to anyone who asks and pays a fee
• APPEAL OR REVIEW OF DECISIONS OF GOVERNING BODY of the First Nation that affect Legal rights or interests. Note: this is not clear, the legal rights or interests of citizens of the First Nations, non First Nations citizens, the governing body legal rights and interests? This has not been the practice in the past where Chief and Council’s decisions have been brought to court or appealed. This must be clarified further as to what this really means as right now this means the Governing bodies decisions are not final.
• Who can be an elector
• How meetings are held by governing body and assemblies of citizens
• How referendums are held
• How the constitution is amended
NOTE: This comes right out of the treaty making process on provisions of what needs to be in constitution.
4. VERIFIER and VERIFICATION PROCESS:
• First Nation and Minister decide who will be verifier
• Proposal must be given to Verifier within 30 days of their appointment
• Verifier has 15 days to decide if proposal, constitution, and process are all done as Act has set out. Then reports to First Nation and Minister
• If Verifier gives OK, then First Nations takes proposal to the voters for approval.
• If Verifier says NO, then First Nation can make amendments and re-submit to the Verifier.
NOTE: This is the same as the First Nations Land Management Act in order to get a land code approved.
5. VOTING OF CITIZENS
• Must be 18
• No proxies
• First Nation must locate eligible voters and let them know of vote and give copies of proposal and constitution and date of vote
• Verifier posts date, time and place of referendum
• Verifier and assists observe voting to make sure it is done properly.
• Vote has to have at least 50% of the eligible voters voting, and 50% of votes cast approving (First Nation can increase this Percentage if they want)
6. APPROVAL PROCESS;
• If proposal approved, First Nations sends to Verifier a copy of constitution and declaration the vote was proper.
• Voter has 5 days to report any irregularities to Verifier and have opportunity to make submission to verifier.
• First Nation and Minister can make submissions to Verifier within 20 days of vote
• Within 30 days Verifier sends report to First Nation and Minister on conduct of referendum.
• If verifier thinks approval process was not followed then declares constitution not valid.
• If verifier thinks the defect/omission not substantial, can approve constitution
• Once Verifier verifies constitution, sends certified copy to First Nation and Minister
• If Verifier certifies, it is deemed valid by First Nation.
6. ALTERNATE COMMUNITY APPROVAL PROCESS
• First Nation can develop proposal for self government and seek community approval by way of a method agreed to by First Nation and Minister.
• Must have a minimum of 25% of eligible voters agreeing. First Nation can increase %.
• Approval of proposal means it is valid. Voters can report irregularities and go through same process as with verifier
7. EFFECT OF APPROVAL OF PROPOSAL AND CONSTITUTION
• First Nation becomes a RECOGNIZED First Nation governed under its Constitution and is recognized as SELF-GOVERNING.
• Recognition Effective on day constitution is approved or date set out in proposal.
• Constitution effective once certified or on date when set out in constitution.
• Constitution must be available for public inspection.
8. CAPACITY AND POWERS s. 13
• A Recognized First Nation has the capacity of a NATURAL PERSON and can perform as a government as set out in its constitution and the ACT. (is this not a contradiction in terms? You are a person carrying out the powers of a government?)
• Governing body carries out its powers, duties and functions.
• Governing body can delegate ANY of its authority, other than LAW-MAKING Authority or as set out in constitution to any department, institution, agency or official of the government of the Recognized First Nation. Can also delegate to another government…
9. EXCLUSIVE LAW MAKING POWERS s. 15(1) No need to negotiate with Minister
• Who is a citizen and how to decide who is a citizen
• Establishing governing body and who is on it, powers, duties, and function
• How members of the governing body are chosen
• Conflict of interest rules
• Enacting and making laws public
• Financial management and accountability
• How decisions of governing body are made regarding decision that affect legal rights or interests.
• Who electors are
• Meetings of governing body and citizens
• How referendums are carried out
• How constitution is amended
• Other internal governance matters.
These powers can be exercised by a Recognized First Nation without negotiating with the Minister the extent and nature of these powers.
10.OTHER AREAS OF LAW MAKING POWER: HAVE TO BE NEGOTIATED WITH MINISTER:
• Providing programs and services for spiritual and cultural beliefs and practices (why would this be necessary?)
• Healers and traditional medicines: why would you want to?
• Adoption of Children WHO ARE CITIZENS of the First Nation-if you adopt anyone else have to go through provincial laws.
• Guardianship, custody care and placement of children that are citizens (so two services required-can only deal with own children, provincial services and laws would look after non citizen children-confusion on the reserve-awkward and unwieldly)
• Provision of Education programs and services-not about education itself but about “programs” and “services”- leaving room for proposed National Education Act
• Doing Marriage ceremonies (not an integral governing power )
• Matrimonial Property whether one or both spouses are citizens (allows for laws to apply to spouses not from the first Nation but can’t do the same for laws on children and families)
• Inheritance, wills, intestacy and administration of estates
**These powers can be made to apply to citizens of the Recognized First Nation whether they are on First Nations Lands or not. S, 15(3)
**First Nation law has precedence over Federal Laws if there is a conflict
11. Law Making s. 15(4) : Have to negotiate power with Minister
• Use, management and administration, control and protection of First Nations Lands and natural resources on those lands
• Gathering, hunting and trapping and the protection of wildlife and their habitat
• Control or prevention of pollution and protection of environment
• Licensing and regulation of persons or entities carrying on any business, trade, profession or other occupation
• Who can live on lands and rental issues
• Public works and undertaking-buildings, infrastructure and local services
• Raising of revenues
**First Nation law has precedence over Federal Laws if there is a conflict
12. First Nation can also pass laws for: (also to be negotiated)
• Administration of justice including establishing courts and tribunals of criminal and civil nature
• Establish administrative boards, tribunals, commissions or other administrative bodies
• Emergency preparedness
• Providing health care and services
• Transportation-construction, maintenance and management of roads, regulation of traffic, control or prohibition of the operation and use of vehicles
• Labour relations
• Fishing and protection of fisheries, fish and fish habitat
• Control or prohibition of threats to public order, peace of safety
If a conflict between First Nation law and a federal law, federal law will take priority (eg. Criminal code of Canada, Health Act, Canada Labour Code, Transportation Act (federal)
14. Penalties for Breaching First Nations Law
• First Nation can make breaches of their laws summary conviction offences and can ask for fines, imprisonment, restitution, community service or others
• Terms of imprisonment or fines can be no greater than those in Criminal code
• Fines for breaches against the environment cannot be greater than those same offences under federal environmental law
• First Nation can pass laws to do inspections, searches, seizures, forfeitures and compulsory sampling, testing and production of information.
• First Nation can adopt the laws of the province in respect of offences that are created by a law of the province (OFFENCE ACT)
• First Nation can have a system where administrative penalties for administrative laws that are breached by setting out the amount of the penalties and deciding which laws fall under administrative laws.
15. FIRST NATION LANDS
• Reserves are continued
• All leases and other interests remain
• A Recognized First Nation has all the rights, power, responsibilities ad privileges of an owner in relation to its First Nation lands and may grant licenses an interest in its lands.
• All leases/interests are transferred to the First Nation
• Citizens who held land under the Indian Act are subject to the new law passed by the First Nation in relation to land holding
• A recognized First Nation can exchange an interest in its first Nation land only if it gets land of same or greater size or value, Her Majesty will accept lands as reserve lands, First Nation has informed its citizens and have agreed to exchange
• Can set up own land registry system
16. Expropriation of First Nation Lands
• First Nations lands can be expropriated by Federal government if the land is to be used for a federal department or agency and it is justifiable and necessary for a federal purpose that serves national interest. Land must be smallest size required, for shortest time possible and replacement lands and fair compensation been provided (No where does it require the consent of the First Nation.
17. Fiscal Relations (s. 33-38)
• Under a First Nations Law, recognized First Nation can raise moneys by way of fees, charges, royalties, permits, licenses or other non tax ways
• Direct taxation of its own citizens
• Taxing non citizens based on agreement with FN and Federal Govt.
• Money has to be used in line with constitution and financial laws
• Can receive money from federal and provincial governments and other entities
• Spent, invest, assign or commit moneys received
• Borrow money
• Perform financial management and administration as required
• First Nations Fiscal and Statistical Management Act continues to apply if a borrowing member of FNFA
• S. 87 continues to apply to a recognized First Nation (tax exemptions on reserve)
• Money will be provided at least 60 days in advance of new fiscal year under a financial transfer agreement that sets our terms and conditions
• Any money the First Nation has in Ottawa accounts must be transferred to a First Nation within 90 days of it becoming recognized-deemed to be on First Nations lands and not subject to taxation.
18. Organizational Structure
• A recognized First Nation can divide itself into two or more recognized First Nations or to amalgamate with another First Nation whether recognized or not.
• Must put together a proposal for approval by Minister
• Members must approve proposal to divide or amalgamate
• The original First Nation ceases to exist on approval by Minister of divided First Nation or amalgamated First Nation
• Two or more recognized First Nations may establish a confederation of First Nations by agreement and delegate their legislative and administrative powers to. They then have the authority to make laws and carry out delegated powers
• A Confederation is a self governing body with the capacity of a natural person and can carry out the functions of government that are delegated to it.
19. Rights and Liabilities
• Members/citizens continue to be Indians
• S. 89 continues to apply
• First Nation not liable for Acts of Government/agents before Recognition.
• Once Recognized, First Nation becomes liable for its act, or any person or body authorized to act for it and indemnifies the Crown from any liability. (this could be devastating to First Nation and if insurance is available would be very costly)
• No individual is personally liable for any debt, obligation or act of recognized First Nation unless they knowingly consented to the Act.
• No citizen is liable for the debt of the Recognized First Nation
• No member of the government or its employee are liable for its acts or omission if they exercised good faith in their duties
• First Nation can make laws regarding personal immunity from civil liability of employees, officers of members of the government and other institutions.
21. Immunity and Judicial Review
• A verifier who in good faith exercised their powers/duties cannot be subject to criminal or civil proceedings
• Decisions by Verifiers are final and not subject to appeal, or review in court
• AG of Canada or anyone directly affected can make an application under Federal Court Act for relief against a verifier if the verifier acted without or beyond its jurisdiction or refused to exercise its jurisdiction. Of if the verifier failed to observe a principle of natural justice or procedural fairness. (be a burden on First Nations to get AG to file such a suit.)
22. General provisions Respecting Laws s. 47
• Provisions of Indian Act or other Act about regarding lands or lands reserve for Indians and regulations do not apply to a recognized First Nations, its citizens First Nation lands, money or assets.
• If you don’t make provisions in your laws then the Indian Band Election regulations, the Indian Referendum regulation or the Indian Band Council Procedure Regulations will continue to apply. Also the land designation sections of the Indian act, the education and schools sections of the act, wills and estates, Indian Register, moneys of children. So if you don’t want these parts of the Indian Act to apply will need to negotiate those powers.
• A recognized First Nation can adopt parts or all of federal laws that apply specifically to Indians and lands reserved for Indians or even those that are not within the powers of the Recognized First Nation. A First Nation can amend those adopted provisions to the extent it makes it compatible with its laws but doesn’t change the meaning of the federal law.
• If a Recognized First Nation adopts a Federal law, it can repeal it at any time but can only amend it if the federal law is amended-amendments have to be what is in federal amendments.
• Provincial law: Same as s. 88 now exists, provincial laws do not apply to the governing body, First Nation lands or its citizens of a Recognized First Nations law if it is consistent or in conflict the Recognized First Nation constitution or laws or federal laws.
• Federal laws continue to apply to a Recognized First Nation, its governing body, its lands or citizens. Federal law trumps First Nation law unless stated otherwise in the Act.
FIDUCIARY DUTY (s.51)
• Fiduciary duty continues to exist
• Once recognized First Nation starts exercising its law making power, then that changes the fiduciary relationship as per custom law.
• Any by laws become laws upon recognition until a new law comes into effect.
• A Land Code in effect before recognition, continues after recognition until it is replaced by the First Nation.
• A law made under the First Nations Fiscal and Statistical Management Act continues until replaced by a new law.
• The power to make laws over taxation as granted under the First Nations Fiscal and Statistical Management Act continue after recognition. Same with local revenue laws.
Amendment to Acts: s. 60
• CONSULTATION: any federal bills, bills to amend this act or any other Act of parliament that would affect any right of a recognized First Nation must provide the Recognized First Nation the opportunity to CONSIDER the bill and give due CONSIDERATION to any representations by First Nations.
Note: interesting that this is built into the act when the federal government does not do consultations or laws in any comprehensive fashion. Even though this is in the act, it is a very weak reflection of the duty to consult and the Honour of the Crown.
• You do not lose your membership in a First Nation when it becomes a Recognized First Nation.