Band Constitutions: A Tool For Accountability?: First Nations need “made-on-reserve” remedies for governance issues

Commentary, Aboriginal Futures, Joseph Quesnel


For some time now, impropriety in Indian band elections and financial disclosure problems have been pushed off to courts, as government avoided wading into controversy and encouraged First Nation bands to solve their own problems.
According to one senior Indian Affairs policy analyst, the Ministry must work with a recognized legitimate government on a reserve. If the government is not able to identify the legitimately chosen leadership in a First Nation, Indian Affairs may consider diverting program funding through a third-party manager while competing band factions figure out issues.
First Nation governments, through changes to the Indian Act, have developed membership codes, and may request removal from the Indian Act election system by developing their own community election system.
If a First Nation does not hold its elections under the Indian Act, disputes that arise from the community’s election process must be solved internally. Essentially, these First Nations do not have access to the election appeal process provided for in the Act.   So, they are on their own to solve any problems. Indian Affairs provides bands with models of best practices for governance, but they do not interfere.
In many cases, bands develop their own constitutions that provide governance rules and specify what decisions on a reserve need to be decided upon by the people.
As I’ve written about previously, one community group on the Blood Reserve in Alberta was looking to a constitution as a solution, a remedy which holds much potential. If used effectively, band constitutions can play a role in acting as a check and balance on chief and council. On many reserves, checks and balances do not exist.
Two examples from Manitoba illustrate the potential of band constitutions to control power and improve governance.
On the Roseau River reserve, two competing factions finalized a federal court battle. There, the band’s own constitution and Election Act provides a custom council that is supposed to advise the elected chief and council. In fact, Roseau’s constitution says legislative powers are vested in the custom council (a body comprised of elected representatives from each family on Roseau). The basis for the battle was the custom council’s allegations chief and council ignored them, including repeated requests for financial disclosure about the band dealings, including trips taken by the chief.
The chief and council questioned the legitimacy of the custom council, including how its representatives were chosen. While the court found irregularities on both sides, it ruled chief and council could not ignore the custom council.
In the example of Sioux Valley Dakota Nation, court was avoided. The community ratified a constitution giving powers to a custom council and chief and council had to provide full financial disclosure to the membership.  However, concerns about spending allowances by some councillors were raised by community members.
In response, they confronted chief and council, asking them to respect the authority of the custom council and to produce the books. According to the Drum newspaper, the chief and council opened their ledgers and a crisis was averted.
Indian Affairs make it clear they respect systems put in place by First Nations, but cannot act as “enforcer”. So, Indian Affairs encourages First Nations to resolve problems internally. However, if problems cannot be resolved and if the band does not come under Indian Act dispute resolution systems, their only option seems to be court.
There must be a better way. First Nations need ‘made-on-reserve’ remedies for accountability and transparency issues.
The judge in the Roseau case provides clues, such as when he wrote, “I would advise the band that following their self-chosen procedures, and if necessary amending or developing their constitution and Election Act… will help to avoid creating a situation where this court becomes a regular recourse for band election matters.”
The judge was nicely letting First Nations know of the need to take their own systems seriously and avoid costly third-party intervention and court battles.
Native bands need band or regional-level institutions providing quick, binding mediation or arbitration. This is less costly and adversarial than court. Ottawa must recognize and even enforce decisions of these bodies and work with band governments to ensure constitutions respect democracy, individual rights and gender equality.
There must be better options than watching communities self-destruct.