Indian Affair Minister Robert Nault has announced that he will push for a new law to help fill in some of the legislative gaps in the Indian Act and push his department to pursue an unprecedented consultation process that reaches out to all First Nations people.
A similar process, initiated by former minister Ron Irwin in 1996, died on the order paper when the 1997 federal election was called. At that time, Irwin was criticized for imposing his vision on the chiefs. Former National Chief Ovide Mercredi strongly opposed the process and Irwin left him out, going directly to the member chiefs of the Assembly of First Nations.
Irwin claimed he had the support of many chiefs but declined to name even one, saying the chiefs would suffer politically for supporting the federal government.
Many First Nation members are leery of changing the Indian Act because, even though the act was designed to eliminate or assimilate Native people and absorb them into the mainstream body politic, and extinguish Aboriginal rights, it is still the only source of legal protection for many of those rights.
Nault said he will consult with the present national chief and the AFN member chiefs plus grassroots band members. Some of his remarks in published reports suggest the minister believes the interests of the chiefs are sometimes contrary to the interests of grassroots people.
The proposed First Nations governance act will, if the minister gets his way, include provisions to turn the administration of First Nation elections over to Elections Canada officials. He admitted that Indian Affairs, which conducts the elections now, is not seen as impartial.
Nault also wants to implement protection for band administrators who frequently lose their jobs when a new chief is elected. That, he said, interferes with the development of a professional First Nations public service and prevents any sense of continuity.
"Government should be policy makers and let the public service do their job," he said.
Conflict of interest guidelines should also be enshrined in law so that abuses and the suspicion that abuses are occurring can be minimized.
"There'll always be situations in communities-Native and non-Native-where people will be charge with crimes or will be accused of certain things," he said. "It happens the same as it does in the Native world as it does in the non-Native world. I'm not naive enough to believe that this process will change that completely, but it will certainly define the role between the political system and the interaction with the public service."
Nault said a more stable First Nation public service will improve the abilities for "people to work together and to build a community and an economy and that's what this is about."
Nault admitted he is motivated to introduce the new act because the Indian Act is legally inadequate and under attack in the courts.
"One of the major preoccupations of why we need to modernize the Indian Act is there's over 200 cases in court today on issues relating to the Indian Act because of the belief of those who are in the courts that [the act doesn't] meet the test of the Charter or [it's] not effectively meeting the needs of the individual people in the community," he said. "So, based on that, we can either sit still and let the courts go through those 200 cases or more, and there's more coming in every day, and re-define our relationship through that process, which they did in Corbiere, or we need to sit down as governments, as leaders who have been given the responsibility of building this relationship, and improve or modernize the Indian Act in one form or another.
"We don't have a lot of time before the courts start to rule on major pieces of the Indian Act for us and I do not want to re-live Corbiere, in the sense that it forces the government of Canada through a legal ruling of the Supreme Court to implement certain changes without a lot of consultation."
The minister believes there's already extnsive evidence that the changes he proposes are required and are desired by First Nation people.
"I'm looking for a very aggressive consultation process. It's not about the resources that are necessary to do this, it's about . . . you know, we've been talking about this, we've been studying ourselves to death for years and years. We've had the Royal Commission do an extensive report on the fact that we need to change our governance structures and we need to do this now. We can't afford, with the fastest growing population, the youngest population in Canada, to spend years talking to each other when we already have a consensus," he said.
Nault said preliminary discussions with the AFN lead him to believe he can work with the national chiefs' organization.
"I have had discussions with the AFN leadership. My understanding, and it was confirmed to me a couple of Friday's ago in a luncheon meeting I had with Vice-Chief Charles Fox, is he will be the lead on this particular initiative on behalf of the AFN. We sat and talked extensively about how consultation would work based on the fact that the AFN, as far as I can tell so far, is very interested and does have the same view that I do that we need to make some structural changes to the Indian Act, to modernize it, to bring some accountability structures and a governance process that makes more sense to not only the individual people in the community, but the leadership themselves because it's very difficult to be a politician in First Nation country as far as I can tell," he said.
"It's hard because there's no set rules of engagement, at least as it's played out in the Indian Act. It's fairly silent on things like conflict of interest, things that relate to honorariums, salary, travel. All these things are being left to the device of individual First Nations and at this point we're a long way away from a structure that meets the needs of the interaction between First Nations politicians and their constituents."
But he ouldn't guarantee the AFN will be an equal partner in the process.
"You're asking me if we will be consulting with the national leadership and the answer to that is I would hope so. I can't give you detail of what the strategy would be at this point because the national chief and I are set to meet within the next couple of weeks but that hasn't been done yet. Our discussion will occur sometime around the end of this month," he said. "I don't think we're on a different wave-length, but I do want to commit myself, and to others who are going to be following this very closely, that I will expect that we will communicate much more to the grassroots than any minister has ever attempted to do in the past, because I like to think that First Nations citizens are as sophisticated as any other citizenry and can understand the issues that we're dealing with and have some input and make sure that that input flows to their leadership as we work this through in the next number of months."
He will, however, ask National Chief Matthew Coon Come for his opinions on how the consultation should be conducted.
"That will be the discussion I have with the national chief in the next couple of weeks, as to how we see this all rolling out and how the consultation process will work. But my view is that if we can get a draft prepared between ourselves and the AFN and consultation with the communities in the next number of months, then there are two options. One, of course, is if we could get permission, which you can do - it's either through a discussion paper or even a draft piece of legislation - you can get permission from the government to use that to go out and consult with to get the views and refine even further before you bring it into the House. And then let the Standing Committee on Aboriginal Affairs go out again with a mandate to look at it in its entirety to make improvements until it finally gets to second and third reading.
Windspeaker asked why the minister wouldn't let the FN take over the consultation process and then pass on its findings to him.
"I want to be very straight up about this. It's extremely important. One of the issues that I think everyone is aware of is that any minister of the Crown does not work in a vacuum. Any major piece of legislation and/or change in direction whether it be policy and/or treaty making for a self government negotiation that go right through framework to an agreement-in-principle to conclusion of an agreement, goes to Cabinet. I've always found this to be extremely interesting that the process that we've entered into is one that we would let the AFN or any other organization have the lead on a particular issue and then give it to the minister and say, 'Well, there you go. That's what we want,' without me, at least at first at the early stage of the development of our process, getting certain clarifications and agreements with my Cabinet colleagues so that we'd at least know what the parameters of the discussion will be," he said.
"So I have been very clear with the First Nation leadership since I became the minister that I will do what the AFN does itself, work internally with my colleagues to get a sense of what the parameters of what I could do are and then to come up with that to sit down and discuss this and then go and consult with the First Nation leadership and the community members right across the country."
The joint AFN/Indian Affairs working group that was struck to come up with a plan for an independent claims body, which failed to produce something Cabinet could live with, is a perfect example of why that process won't work, the minister said.
"Other departments and other members of Cabinet have a right to be in the loop," he added.
Reaction to Nault's initiative has been mixed. Some sources wonder how it fits in with the Prime Minister's campaign announcement that he will make social conditions on First Nations a priority during this mandate.
Elijah Harper, a former Liberal MP and