First Nations are not denying measures that assure accountability and transparency from band governments are needed, but Bill C-27, the First Nations Financial Transparency Act, as it stands now, is not the answer.
Bill C-27 may also be illegal, said Sawridge First Nation Chief Roland Twinn. He was speaking to the Senate Standing Committee on Aboriginal Peoples on Feb. 12. Twinn believes the bill was in conflict with Sect. 52 of the Constitution Act, which states that any law contradicting the Constitution is invalid.
Michael R. McKinney, executive director of Sawridge First Nation, added 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.
“This puts us in the position of having to file a legal action and all the money and delay this involves,” said Twinn.
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. Twinn contends this puts First Nations at a disadvantage when it comes to doing business.
However, Harold Calla, chair of the First Nations Financial Management Board, who appeared before the committee the following day, did not feel that the requirement for First Nations entities to supply consolidated financial records was inappropriate.
He did say, though, that Bill C-27 was not adequate.
“I appreciate that the minister responsible has to respond, but I don’t think any of us should be fooled that good financial management and accountability is contained within the four posts of this particular piece of legislation,” said Calla. “I would hope that you would look beyond this legislation to what’s required. I think you need to also look beyond this legislation to understand what kind of support First Nations are going to need to develop the capacity to not only create but sustain certification and good financial management practices.”
Bill C-27 also requires that salaries and expenses of chiefs and councils be posted on the Internet along with annual consolidated financial statements and any statements prepared by an independent auditor. Band members are permitted to request, at a fee, copies of this information to be provided within 120 days. If the requested documents are not presented, a band member may take court action to get compliance. If a band council does not comply, the federal government could withhold funding to the First Nation or terminate any agreements for funding.
The bill contains a number of unrealistic clauses, Beverly Brown from the Squamish First Nation, told the committee on Feb. 13.
Many members cannot afford Internet, cannot afford to pay the fee to have information photocopied, but mostly, members would not be able to afford to take court action, said Brown.
Michael Benedict, a First Nations tax consultant, said financial sanctions imposed by the federal government against a First Nation in non-compliance and court action that may be taken by the government were not enough.
“It does little to respond to the citizens, the grassroots people in the community, that are seeking to understand how their finances are being managed and spent and how they’re being represented by their First Nations councils,” said Benedict.
Both Benedict, from Odanak Abenakis Band, and Brown told the committee about the difficulties they were having getting information from their respective band councils.
“Once the legislation is in place, there’s got to be teeth behind it…. (It is) Aboriginal Affairs and Northern Development Canada who is the watch dog,” said Benedict. However, he noted in the past complaints he submitted to AANDC resulted in him being sent back to his band.
“I don’t believe this legislation is going to do very much either. It depends on how it’s going to be used and … the federal government’s response to our complaints.”
Twinn believes the answer was not in legislation, which he referred to as “Draconian,” but in First Nations receiving support to work towards self-government.
“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,” said Twinn. “Other First Nations can definitely go down the road… it’s not impossible.”