Transparency Act will be challenged in court

If Bill C-27, the First Nations Financial Transparency Act, becomes law the Sawridge First Nation has given notice it will take legal action.

Chief Roland Twinn told the Senate Standing Committee on Aboriginal Peoples on Feb. 12 that the bill was in conflict with Sect. 52 of the Constitution Act, which states that any law contradicting the Constitution is invalid.

“If it comes down to it, we will take it to court,” said Twinn.
Twinn, who serves as Grand Chief of Treaty 8, also told the committee that Bill C-27 will not result in better governance by First Nations.

“We believe (this bill) will be counterproductive to your goal to increase accountability and transparency in First Nations governance,” he said.  He added that the bill provided “Draconian sanctions” and was a return to the “great-white-father-knows-best syndrome.”

“We’re suggesting that Parliament encourage the government to take a different path leading to improved governance,” said Twinn, who claimed that federal legislation would further cause resentment and damage relationships.

Twinn pushed the way his First Nation, the Sawridge Band, undertakes business. He said that giving the membership the power to guide its own constitution is far more effective when it comes to developing stability on a First Nation as well as attracting outside business.

“The members of the First Nation have provided themselves with standards of accountability and transparency that go far beyond that (which) is available to the people of Canada,” he said.

Under the band’s own Financial Management Act, the budget, financial reports and all financial records are available for review by members on a confidential basis. There is also a recall process in place for Chief and council.

Michael R. McKinney, executive director of Sawridge First Nation, told the committee that Bill C-27 would contravene the Montana Decision rendered by the Federal Court of Appeal, which confirmed that the financial statements and audits of First Nations are confidential information and protected from disclosure under the Access to Information Act.

Of particular concern to the Sawridge First Nation is Bill C-27’s requirement that information from First Nation-owned and operated entities be disclosed and posted on the Internet, which, McKinney said, puts First Nations at a disadvantage when it comes to doing business.

He said there was no issue with accounting publicly for dollars received from the federal government. However, he pointed out, that much of the business undertaken by the Sawridge band was through money generated by the band.

“We don’t see any purpose for that disclosure of information beyond members of the First Nation unless, of course, it is entirely paid for by taxpayer dollars or if any portion of it is paid for by taxpayer dollars that part is certainly of interest to the people who have paid that money. Otherwise that would be an infringement upon the privacy rights of the First Nation,” said McKinney.

While Twinn conceded that not many other First Nations had the same approach as Sawridge Band did to transparency and accountability, he said he was working with a handful of First Nations in Alberta to help them in the process.

He also held that while the bill provided information, it provided little recourse for band members as court action, which is one of the provisions of the bill, was not affordable by band members.

“By allowing the First Nation to empower themselves, to say no, we as the people will not stand for that, is the answer,” Twinn said. “In our experience it’s a long hard row to sow, but it’s something that has to be done. It takes a lot of courage. It actually encompasses a little bit of healing and allows the voice of the people to come up.”