LibertasPost

For some time now, impropriety in Indian-band elections and financial-disclosure problems have been pushed off to the courts for a resolution. The federal government avoided controversy by encouraging First Nation bands to solve their own problems.

A senior Indian Affairs policy analyst recently said that the Ministry must work with a recognized legitimate government on a reserve. If the government is unable to identify an acceptable First Nation leader, Indian Affairs should consider diverting program funding through a third-party manager while competing band factions resolve issues.

As a result of changes to the Indian Act, First Nation governments have developed membership codes, permitting them to bypass the Indian Act election system and develop their own community election system.

If a First Nation does not hold its elections under the Indian Act, disputes triggered by the community’s election process must be solved internally. Essentially, these First Nations do not have access to the election-appeal process provided for in the Act and they are on their own to solve any problems. While Indian Affairs provides bands with models of governance best practices, it does not interfere.

In many cases, bands have developed their own constitutions, which provide governance rules and specify what decisions need to be decided upon by the people.

In an earlier column I wrote about a community group on the Blood Reserve in Alberta that felt a constitution was a viable solution. If used effectively, band constitutions could play an objective role managing chief and council. Unfortunately, a system of checks and balances does not exist on many reserves.

Two examples from Manitoba illustrate that band constitutions could potentially improve governance.

Roseau River: On the Roseau River reserve, two competing factions finalized a federal court battle. The band’s constitution and Election Act provides a custom council that is supposed to advise elected chief and council. Roseau’s constitution says legislative powers are vested in the custom council (a body comprising elected representatives from each family on Roseau). The basis for the battle was the custom council’s allegations that chief and council ignored them, including its repeated requests for financial disclosure about band dealings — including trips taken by the chief.

The chief and council questioned the legitimacy of the custom council, including how its representatives were chosen. While the court found irregularities on both sides, it ruled chief and council could not ignore the custom council.

Sioux Valley Dakota Nation: In the Sioux Valley Dakota Nation example, the court was avoided. The community ratified a constitution giving powers to a custom council. Chief and council had to provide full financial disclosure to the membership. However, concerns about spending allowances by some councillors were raised by community members. They confronted the Chief and council and asked that they respect the authority of the custom council and produce the books. According to the Drum newspaper, Chief and council opened their ledgers, averting a crisis.

Indian Affairs make it abundantly clear that it respects systems adopted by First Nations, but it is not permitted to act as “enforcer.” As a result, Indian Affairs encourages First Nations to resolve problems internally. If it can’t be done — and the band does not come under Indian Act dispute-resolution systems — the only option is turning the issue over to the court.

There must be a better way. First Nations need “made-on-reserve” remedies for accountability and transparency issues.

The judge in the Roseau case provides clues. He suggested that amending their constitution and Election Act can potentially “avoid creating a situation where the court becomes a regular recourse for band election matters.”

The judge was diplomatically stressing the importance of First Nations taking their own systems seriously and ultimately avoiding costly third-party intervention and court battles.

Native bands need band – or regional-level institutions providing quick, binding mediation or arbitration. This is less costly and adversarial than court. Ottawa must recognize and enforce decisions of these bodies, and work with band governments to ensure that constitutions respect democracy, individual rights and gender equality.