Indian Act by-laws: a viable means for First Nations to (re)assert control over local matters now and not later.

• Author: Metallic, Naiomi
• Position: Canada

1. INTRODUCTION

   Although by-law powers giving First Nation band councils ("First Nation governments") the power to pass laws on a variety of subjects relating to reserve land and band members have existed within the Indian Act since the late 1800s, such instruments have largely been seen by First Nation governments as being ineffective at giving them control over local matters affecting the day-to-day lives of their community members. This is primarily because the Indian Act gave the federal Minister of the Department of Indian and Northern Affairs (today called "Indigenous and Northern Affairs Canada" or "INAC" or "Department") final say over whether such by-laws could take effect (known as the disallowance power). In addition, the Department adopted a narrow interpretation of the expanse of the Indian Act by-law provisions, taking the position that any by-laws touching on issues that overlapped with provincial powers would not receive Ministerial approval, thereby preventing First Nation governments from passing laws setting community norms relating child welfare, social assistance, education and a number of other areas. For these reasons, First Nations have not seen the Indian Act by-laws as giving them any real form of self-government.

   However, some modest amendments to the Indian Act that recently came into effect with little notice or fanfare may have significantly changed this state of affairs. A private members' bill, introduced by Rob Clarke, one of the few Aboriginal Members of Parliament in Stephen Harper's Conservative government, called for the repeal of certain provisions in the Indian Act deemed to be antiquated or paternalistic. Among these provisions was the Ministerial disallowance power. The rest of the members of the Conservative party supported the bill and, in December 2014, the amendments came into effect.

   The significance of the amendment is to now empower First Nation governments to pass by-laws as they see fit without any interference from INAC. Of course, the exercise of such powers will still be limited to passing laws over subject matters listed in the Indian Act (subject to review by the courts). However, despite the fact that INAC previously took a restrictive interpretation of these powers, modern interpretation and constitutional principles now support a broad, generous and adaptive reading of the Indian Act by-laws, empowering First Nation governments to legislate over a wide range of local matters affecting their communities. The by-law powers also make First Nation by-laws paramount over provincial laws and federal laws in a number of cases. For all of these reasons, this is an avenue for exercising self-government that First Nations governments should now seriously consider.

   I acknowledge there are principled objections to reliance on the Indian Act by-laws as the source of self-government powers. Certainly, both the dark history of the Indian Act as tool for assimilation and the status of by-laws as a form of 'delegated' governance powers make the prospect of using the Indian Act to advance self-government somewhat unpalatable. While these are legitimate reservations, facing the present alternative, which is no self-government for the vast majority of First Nations with no prospect of self-government for years to come, and a desperate need for First Nations to take control of key programs in their communities, self-government via the Indian Act by-laws is, by far, the lesser of two evils.

2. THE URGENT NEED FOR FIRST NATIONS TO EXERCISE SELF-GOVERNMENT NOW

   It is well documented that Indigenous peoples in Canada still experience greater poverty, poorer health outcomes, greater risks of addictions, lower educational attainment, lower annual income, over-incarceration, over-representation in the child welfare system, and greater risk of experiencing violence than non-Indigenous Canadians. (1) The dire social conditions that First Nations people in this country continue to face is tied to the colonial legacy of external domination and subjugation of First Nations peoples. (2) It is now widely acknowledge by numerous scholars and important reports, such as the Royal Commission on Aboriginal Peoples' Report and the Truth and Reconciliation Commission's Final Report, that self-government is an essential part of helping First Nations overcome this legacy. (3) In particular, First Nations need to be able to control matters affecting their day-to-day lives, including in the areas of education, social development, child welfare, health, housing, land-use, policing and emergency services, to name a few.

   Currently, most First Nations in Canada are not self-governing. Instead, what is now in place in most First Nations is what is known as "program devolution." (4) Program devolution is the transfer of resources and responsibility for program delivery from INAC (and other federal departments that administer programs to First Nations, such as Health Canada) to First Nations and their institutions in accordance with terms and conditions set by the government. (5) Although there are varying definitions and models of First Nation self-government, its core feature is real decision-making power resting in the hands of Indigenous peoples. (6) On this basis, program devolution is not self-government simply because it is INAC (and other federal departments) that exercises control of the programs, policies and budgets of First Nations. (7)

   While program devolution may have been a well-intended policy designed as a transitional tool to prepare First Nations to assume self-government, it is problematic for a number of reasons. (8) First, there is no legal framework for program devolution; it operates purely on the basis of government policies, treasury board authorities and appropriations, and funding agreements between INAC and First Nations. (9) This gives INAC staff extensive discretion and control over First Nations' affairs and gives rise to potential for abuse, lack of oversight of departmental staff by Parliament, and lack of accountability to First Nations peoples. (10) Second, it has created conditions allowing for the serious underfunding of First Nations programming, exacerbating the poverty already existing in many First Nations communities. (11) Finally, devolution does not encourage thoughtful, culturally appropriate, policy-making sensitive to the particular needs and circumstance of First Nations people. (12) This is because INAC's primary program delivery standard for virtually all essential services, formulated in the mid-1960s with a view to assimilating First Nations, which still persists today, requires First Nations to follow provincial program standards (known as the provincial 'comparability' standard). (13) In brief, instead of preparing or leading First Nations toward self-government, program devolution seems to be worsening the plight of First Nations communities. (14) In a 2011 Report, the Auditor General went so far as to state that the current system on reserve "severely limit[s] the delivery of public services to First Nations communities and hinder[s] improvements in living conditions on reserves." (15)

   Paired with this problem is the fact that the existing process for First Nations to achieve self-government takes several years to conclude. (16) To date, such negotiations have only resulted in about a dozen concluded agreements. (17) Moreover, these negotiations were virtually stalled in the last decade under the Conservative government of Stephen Harper. (18) There was the aborted attempt by Canada in 2002-03 to pass the First Nations Governance Act, which included recognition of First Nations law-making powers over local and internal matters, (19) but the federal government has yet to make any further attempts to revisit the concept of Canada-wide legislation enabling self-government, despite the fact that some scholars have suggested it is high time it do so. (20)

   Taking these two problems together, First Nations governments in Canada currently appear to be stuck between the proverbial "rock and a hard place" when it comes to having a means to exercise effective control over programs and services affecting their community members. It is possible that positive changes in this direction may occur with the recent election of Justin Trudeau's Liberal government, which campaigned on improving Canada's relationship with Indigenous peoples. However, the process of reform--especially within government departments--can be long and arduous and the need for change is urgent. With concluded self-government agreements a long way off for many First Nations, and the prospect of reform of the system of program devolution uncertain, a viable interim solution is necessary because the status quo is unacceptable.

3. IN SEARCH OF AN INTERIM SOLUTION-REVISITING THE INDIA N ACT BY-LAW POWERS

   1. Introduction to the Indian Act by-law powers

      The Indian Act by-law powers are provisions delegating a number of legislative powers to Band Councils, the governing bodies of each First Nation band under the Indian Act. (21) These powers, in some regards, resemble powers appearing in municipal statutes. This has led some courts to make direct comparisons between First Nations and municipal governments, (22) although more recent cases have suggested that Bands Councils / First Nation governments, having both inherent and delegated-municipal powers, are more than merely a delegated government, but are instead a sui generis form of government. (23)

      Some form of by-law powers have appeared in successive versions of the Indian Act and its predecessor statute dating back to 1869. An Act for the gradual enfranchisement of Indians, the better management of Indian Affairs, and to extend the provisions of the Act contained seven subjects over which the Chief of a band could pass "rules and regulations," subject to confirmation by the Governor in Council. (24) These seven subjects find their...