Does Bill C-27 defy treaties and the Constitution? Probably.
NATION by Nathan Raine
On Aug. 19 and 20 in Saskatoon, the Federal Court heard pleas from a number of First Nations to halt the federal government’s Bill C-27, the First Nations Financial Transparency Act. The FNFTA requires that to receive their allotted funding, First Nations submit audited financial statements, along with the salaries of chiefs and councillors, which will be posted publicly on the Internet.
The act has been subject to considerable debate, to say the least.
Chief Bill Erasmus, Assembly of First Nations (AFN) Chief for the Northwest Territories and Chief of the Dene Nation, says the act is an example of both discrimination and neo-colonialism.
“We’ve been accounting [to] the federal government on an annual basis, otherwise they never would’ve kept funding us,” he says. “If our band members or people need to see the documents, they just need to ask council, or Indian Affairs. So it’s not an issue. But there’s a [misunderstanding] that we aren’t accountable.”
In Saskatchewan, 30 of the 70 First Nations had not filed their financial reports as of the time of writing, a non-compliance rate of 43 per cent. Starting Sept. 1, Ottawa will start withholding “non-essential money.”
But what does that mean?
“We’ve never had a conversation with them about what is essential and what isn’t,” says Erasmus. “They’ve arbitrarily come up with this classification of dollars. I don’t know what it means. Normally people get their funding. This whole business of withholding ‘non-essential’ money is a new thing.”
The Canadian Taxpayers Federation began pushing for this type of legislation in 2013, saying that full financial information should be available by “simply Googling it,” as they believe First Nations are misusing taxpayers’ money — two assertions refuted by Erasmus.
“The fact that these are not taxpayer dollars is very important. Most people don’t understand that the “moneys” we get are based on a legal relationship,” says Erasmus. “They are what we call ‘Indian moneys’ which are allocated from the Treasury board to the First Nations. It’s allocated annually and is based on our Treaty relationships.”
In 1867, the British North America Act made lands reserved for First Nations an exclusive jurisdiction, making the federal government responsible for providing programs and services that most communities in Canada receive from provincial and municipal levels of government. First Nations also lost land resources through treaties and land claim settlements, which created government obligations to provide aid and services in return.
“If you look at the federal budget, you’ll notice that annually there’s always money that’s set aside that goes to First Nations,” say Erasmus. “But this legislation was fueled by the Taxpayers Federation who are saying we are not accountable or transparent. That ‘taxpayers’ dollars need to be accounted for.’ We are trying to dispel this misleading information. It is not taxpayers’ money.”
Many First Nations Chiefs, including Erasmus, say that it isn’t financial transparency that’s the issue; it’s the massive potential damage to their business interests that could occur if finances were to be published publicly online.
“We have 530 First Nations, and they’re all engaged in business. To reveal their finances to the public is against business practice. If people are tendering for projects, or if they’re competing for contracts and their competitors don’t also have to give information to the public, they’re providing ammunition to their competitors. It’s very unfair,” he said.
Attempts to contact the federal government did not result in a comment on the issue.
Legislating Without Listening
Another major issue in the case concerns “duty to consult,” says Benjamin Ralston, Research Officer at the Native Law Centre at the University of Saskatchewan.
“The Crown has a duty to consult First Nations before enacting laws that could impact their asserted aboriginal and treaty rights,” says Ralston.
This, obviously, did not occur. And it gets more complex when considering First Nations self-government rights.
“One could argue that in this case the federal government should have consulted First Nations before proposing the FNFTA,” says Ralston. “It’s a bit more difficult of an argument here though, since treaty rights to hunt, fish and trap are very common and self-evident, whereas the self-government rights that might be asserted here would very likely be contested by the federal government.”
The federal government could enact such a law without consulting the First Nations, says Ralston.
“If the First Nations disputing the application of the FNFTA are able to convince the federal court that the Act infringes on their rights to self-government by, for example, overriding their own financial management or accountability laws, the question would then be whether such an infringement would be justified,” says Ralston.
“[The Court] would look to whether the First Nations were consulted on the Act first, and [then] perhaps to whether the benefits achieved by the Act are outweighed by the harm it visits upon the First Nations to which it applies.”
So, just how unconstitutional is all of this? Section 35 of the Constitution Acts states that all existing aboriginal and treaty rights with First Nations people will be honoured. But Canadian law also gives the Crown an opportunity to justify any infringements on these rights as being in keeping with what’s called “fiduciary duty” (a legal duty to act in another party’s interests).
Basically, it’s all a bit muddled.
“What does this mean in terms of the FNFTA? Hard to say, and that really depends on what the parties have argued,” says Ralston. “It’s worth noting that some First Nations have their own financial management laws that they have enacted pursuant to what they would assert to be inherent rights to self-government. Both treaty and non-treaty First Nations need to manage their own affairs and have bylaws or laws in place for this purpose.”
But Ralston also pointed out the contradictory nature of the First Nations Financial Transparency Act itself.
“Since the 1980s, the federal government has been working towards helping First Nations be more self-governed. They don’t want to be holding the bag for all these different matters,” says Ralston. “Would it not make more sense for the federal government to work with First Nations to empower them to have meaningful financial management laws that actually help their band members, as opposed to just taking a bunch of information in bulk and [putting] it on the Internet?
“It’s very inconsistent with an overall policy or direction towards recognizing self-government for First Nations,” he says.
Chief Erasmus is hopeful that the legislation will be terminated.
“I think once the judge hears all the arguments, the judge will say the legislation is null and void, because they never consulted us and legally they can’t force us to give information to the public that’s a breach of treaties and constitution,” says Erasmus. “They’ve gone well beyond the law.”