First Nations Governance Act.

• Author: Fenwick, Fred R.

Whose business is it, how we run our own government?

In an earlier column I had mentioned aboriginal self-government and cynically asked, "What the heck did you think they were doing before we arrived, anyway?" Pre first contact, Canada was full of native groups, all with their own rules of membership, leadership and governance procedures and for the most part, our dealings with native groups, including treaties never said anything about wiping out these traditions. The law is pretty clear that existing rights of anybody, including the aboriginal rights of native citizens, can't be taken away by a government unless the law is very specific, and although First Nations' self-government rights have been ignored, for the most part they were never specifically stripped away.

Our much celebrated Constitution Act of 1982 (which includes the Charter of Rights) specifically preserves aboriginal and treaty rights and the Government of Canada has recognized as an official policy that the Aboriginal peoples of Canada have a right to govern themselves in relation to matters that are internal to their communities. So if everyone acknowledges that the right to self-governance exists, there ought to be no impediment in implementing that self-governance. Right?

Well, it turns out to be a whole lot more complicated than anyone thought and the fuss over the Government of Canada's new First Nations Governance Act is showing just how difficult this may be. No one seriously questions the fact that the Indian Act (first drafted in 1876) is seriously out of date and never even considered most modern problems like local government and financial management. No one questions that many previously established practices just don't fit in a modern era. For example, the practice of accepting non-Indian women into a band after they married Indian men while excluding Indian women who married non-Indian men flies in the face of our modern concept of human rights, our specific obligations under International Human Rights conventions and our own Charter of Rights. The practice of excluding band members who don't live on a reserve from band elections flies in the face of the mobility rights that all citizens expect and ignores the fact that even a non-resident band member may still want to vote on an important issue like a claim settlement.

But whose job is it to fix these inconsistencies? Well, that depends on your point of view. Like most things in our modern society, the...