On Feb. 4, the Federal Court of Appeal dismissed yet another clutch of frivolous claims to try and halt the Trans Mountain pipeline expansion, after Indigenous claimants tried to make the case that the years of government consultations over the project weren’t sufficient.
Ironically, the leaders of the country’s 632 First Nations aren’t required to, and often do not, consult with their own band members. This is because Canada has gradually ceded its oversight powers to band chiefs and councils, without checks and balances, or any semblance of accountability — a devolution of power that has worsened since Prime Minister Justin Trudeau took power in 2015, according to Indigenous lawyer and activist Catherine Twinn.
In 2015, for instance, Trudeau decided that the federal government would not enforce the First Nations Financial Transparency Act (FNFTA). The law requires Indigenous leaders, often inherited chiefs, to be accountable and transparent by forcing them to publish audits of band expenses, including their compensation.
“Canada found a cunning way to abrogate its fiduciary duty, adopting the inherent right of self-government (rationale). It is politically popular with chiefs and the Indian industry. And it conveniently abrogates Canada’s oversight duty to ensure compliance with the law,” Twinn said in an interview with the Financial Post.
(She has practised law for years in Edmonton and served as assistant deputy minister of Alberta’s Ministry of Human Services. She recently worked on behalf of band members who had been denied access to financial information or membership in bands. She is the widow of Sen. Walter Twinn, the highly respected chief of the Sawridge First Nation.)
Before Trudeau, Canada enforced the FNFTA and initiated action against a handful of non-compliant First Nations. Now, “The compliancy burden (has) shifted to those least able — band members,” said Twinn. “Few can afford to hire lawyers, go up against the resources in the command of chief and council and risk their necessities, such as housing, program supports and jobs, often controlled by the elected leadership.”
For instance, a FNFTA case involving the Onion Lake Cree Nation in Saskatchewan only proceeded because a band member, Charmaine Stick, was able to enlist the financial help of the Canadian Taxpayers Federation to go to court to get the band audits released, as required by law. Onion Lake was found in contempt of court and the matter is currently headed to the court of appeal.
Making matters worse, band members can no longer count on the federal government to support their democratic or other rights. This applies not only to financial matters, but to problems in many parts of the country involving election fraud, unfair reserve regulations and enforcement, nepotism, favouritism and cases where band councils have banned certain individuals, or denied them membership.
The issue of membership must be protected by the federal government, stated Twinn.
“While the equality rights in Sec. 15 of the charter do apply to First Nations, membership rules or codes in various First Nations are anything but equal and fair. In North America, a disenrollment epidemic is underway, typically by wealthier tribes, but also by communities wishing to maintain political or other control,” she said.
“Some (membership) applications sit for decades without decision. Other applications, like the children of an incumbent chief, are processed quickly and secretly.… It is very lonely and challenging for individual members, or those entitled to be members, to hold a rogue exercise of power accountable. Canada created this condition and its abdication consummates an unholy political union with self-government sovereignty assertions.”
Across the country at any given time, there are dozens of First Nations governance battles involving secrecy, election results, lack of consultation, allegations of financial fraud or appeals against arbitrary discipline. Ottawa remains on the sidelines, claiming it respects the inherent right of self-government.
But, as Twinn maintains, First Nations people are also Canadian citizens and should be protected by the Constitution. Yet Ottawa has abandoned these citizens by ceding its oversight powers to band councils that answer to no one.
“Despite substantial case law guaranteeing charter rights over self-government claims, there still remains a problem with constitutional non-compliance by chiefs and councils,” she said. “Complete self-government by all First Nations? What does that look like?”
Financial Post