Robert Nault, Indian Affairs Minister announces plan

The First Nations Governance Act was introduced by the federal government in June 2002 to overhaul the 126-year-old Indian Act. Under the amended Act, native bands would be required to develop a system to choose their leaders and to develop clear rules regarding how they spend their money. The proposed amendments would also give off-reserve band members voting rights in electing band councillors. As well, First Nations would no longer be exempt from the Charter of Rights and Freedoms.

Some of the country's 600 aboriginal groups have been angered by the proposed changes, which they say came without sufficient consultation. They say that being subject to the charter could open bands to a flood of complaints before the Canadian Human Rights Commission for discrimination against employees and people who receive services on reserves. The proposed changes will also make bands more accountable for the money they spend. But, on the other hand, they'll be able to buy land, borrow or invest money, and enter into contracts.

Indian Affairs Minister Robert Nault said the proposed legislation would provide an interim step toward self-government and is not meant to replace existing legislation.

Roberta Jamieson, Six Nations Reserve

However, Roberta Jamieson, chief of the Six-Nations reserve, says that the proposed legislation is, "little more than a new rule book." It doesn't deal with the problems of poverty, healthcare, education, or housing which, she says, are the issues that really need to be tackled.

What is being criticized in the new legislation?

• Elections and Leadership Selection: The new legislation does not take into account the rights of First Nations peoples to elect their leaders and chiefs according to aboriginal customs, traditions and hierarchy.
• Legal Standing and Capacity: Many First Nations can already enter into contracts, sue, be sued and create corporations. The legislation of this right further incorporates the First Nations into the Canadian political framework, without consideration of their inherent right to self-government.
• Powers and Authorities The legislation includes procedures for the passing of bylaws, which is an infringement on the native right to self-determination. First Nations want to develop their own system of justice and legal institutions. Also, native enforcement officers require training, which the community cannot afford. It is recommended that the penalties collected from the enforcement of bylaws go directly to native legal institutions
• Financial and Operational Accountability Restrictions on First Nations' spending could inhibit the amount of money spent on native interests. Also, native Canadians feel that they can govern their own financial institutions and that further government interference will undermine native self-government.

How were the proposed changes decided upon?

Between the spring and fall of 2001, 10,000 First Nations people from across Canada consulted with the government and provided their opinions and ideas. Then a joint ministerial advisory committee, including First Nations representatives, was formed in March to advise Nault.

Why were the changes proposed?

The government felt that the Indian Act of 1876 restricted aboriginal people from enjoying the same governance as non-aboriginal people. They saw the need for First Nations to develop longer-term legislative options to deal with leadership selection. They also wanted to give the community more access to financial information, while still allowing government intervention. The legal capacity of bands was changed because the government saw a need to facilitate economic activity with non-native parties who would prefer to do business on familiar legal ground, and also because there was a need for an increase of native law-making powers.

What is the Indian Act?

The first Indian Act was passed in 1876 by Parliament. Although there have been several major revisions, many of its provisions remain to this day. The Indian Act gave great powers to government to control First Nations living on reserves. It also distinguished between status and non-status Indians. (Status Indians are those who are registered with the federal government as Indians according to the terms of the Indian Act. Non-Status Indians are those who are not registered.) An Indian woman who married a non-Indian man under the act had her status taken away from her, and from her children. This lasted until amendments were passed in 1985. The act of 1876 explicitly forbade the selling or leasing of any reserve land unless it was first surrendered or leased to the Crown. The Indian Act of 1876 also made provision for the election of First Nations chiefs. Essentially, these chiefs functioned as agents of the federal government, exercising limited power within federal supervision. This did not take into account the hereditary rights to chieftainship of some members of the community.

The concept of enfranchisement was a key provision of the act, the government's ultimate aim still being the total assimilation of the First Nations population in Canada. An 1880 amendment declared that any First Nations person obtaining a university degree would be automatically enfranchised. A 1933 amendment empowered the government to order the enfranchisement of First Nations members meeting the qualifications set out in the act, even without the request of the individuals concerned.

The act was so limiting that First Nations band members could not leave the reserve without a special pass and their children were taken away to residential schools to be assimilated. In the 1940s, aboriginal leaders began to emerge as champions of native rights. People began to realize the injustice after a mass of aboriginal men went to fight in the Second World War, only to return to be treated, once again, as wards.

As a result, Parliament launched a committee in 1946 to revise the Indian Act. Through briefings from native communities, the public became aware of the conditions endured by the First Nations. However, when the Indian Act was revised in 1951, Indian status and enfranchisement clauses were retained. The law banning Indian ceremonies was repealed, and First Nations members were given the right to enter public bars. It was not until 1960 that the First Nations were allowed to vote in federal elections.

In 1969, the government introduced the White Paper on Indian Policy, calling for a repeal of the Indian Act. This would terminate special status and federal responsibility for native Canadians, in the hopes of abolishing separation between native and non-native Canadians. Opposition within the native community was so strong that the White Paper was withdrawn. In 1969, all Indian agents were withdrawn from reserves across the country, ending the government's paternalistic presence on First Nations lands. At this time, the government also began to fund aboriginal political organizations. In 1973, native leaders reclaimed their right to educate their children through their culture, and church-operated or residential schools soon disappeared.

In 1988, the federal government amended the Indian Act enabling First Nations to pass bylaws to levy property taxes on reserve lands that they would lease. Before the act was amended, reserve lands set aside for leasing were defined as "conditionally surrendered lands." As a result of aboriginal peoples' efforts, the Constitution Act contains sections recognizing existing aboriginal and treaty rights of the Indian, Inuit and Métis peoples of Canada. In the Charlottetown Accord constitutional process of 1992, aboriginal and government leaders held constitutional talks on a proposal that recognized aboriginal peoples' inherent right to self-government. Ultimately, Canadians rejected the accord in a national referendum.

In April 1991, following the Oka Crisis of the previous year, the federal government established a royal commission to propose a 20-year agenda for change to develop a new relationship between aboriginal and non-aboriginal people that is based on a mutual recognition, respect, sharing and responsibility.

The 13 First Nations and the Department of Indian Affairs signed the Framework Agreement on First Nations Land Management in February 1996, which allows First Nations to pass their own laws to develop, conserve, protect, manage and use their lands.

The 13 First Nations are: Westbank, Musqueam, Lheit-Lit'en, N'Quatqua, Squamish, Siksika, Muskoday, Cowessess, Opaskwayak Cree, Nipissing, Mississaugas of Scugog Island, Chippewas of Georgina Island and Chippewas of Mnjikaning.