Self-government is the best tool that native band governments have to improve governance.
Custom band codes give indigenous communities the ability to design effective, accountable, and transparent governance. Through the use of custom codes, bands may opt out of the Indian Act’s electoral provisions. Operating under custom codes, communities may create their own electoral procedures and at times appoint a senate council to provide checks on elected officials.
Custom codes aren't perfect. Communities with custom codes sometimes run into difficulties when these appointed councils clash with elected officials because they lack established internal resolution mechanisms, guidelines for their interactions or means of enforcement. Aboriginal Affairs will not intervene in such disputes when a band has decided to manage its own elections. That can leave the bands in an awkward position: They can no longer appeal to Aboriginal Affairs for help, but they may not have adequate rules on hand to solve their own problems. This can leave the bands with no choice but to fight out their issues in the courts.
Two examples illustrate the problem. In Roseau River Anishinabe, a small Manitoba band close to the U.S. border, two competing factions fought for power years ago. The band’s chief, Terence Nelson, and his council refused to deal with the bands Custom Council, which ordered him removed from office. Ultimately, the Federal Court found that Nelson had been lawfully removed, despite his efforts to cling to power. The court also suggested that amending the band’s constitution and Election Act could potentially “avoid creating a situation where the court becomes a regular recourse for band election matters.”
More recently, a similar situation played out with Saskatchewan’s Standing Buffalo, located northeast of Regina. There, a conflict between factions over exorbitant expense-claims led to the impeachment of the elected Chief and five out of six councillors last January. The band’s chief and five councillors lost the subsequent election triggered by an impeachment of contested legality. Only chief and council had the legitimate “power of the purse” to spend and make decisions about programs and services, but they refused to step down, believing their impeachment improper. This left governance in the community at a standstill. Again, court is proving to be the only option. The case remains open.
Appealing to the courts may be still better than calling in Aboriginal Affairs to rule from afar, which only serves to promote dependency. Notwithstanding the claims to Aboriginal sovereignty, any individual Canadian can go to court to settle a dispute. But prolonged court battles only benefits lawyers, and wastes considerable time, money, and goodwill that could be put to so many better uses.
Modest improvements to the regulations surrounding custom councils offer an effective way forward. Every democracy needs codified safeguards and procedures for diverse eventualities, and custom councils are no different. Consider, for example, a system to handle impeachments designed along the following lines. When a sitting chief and/or councillors are lawfully impeached, all custom councils should require a new election within 60 days, while spending powers are immediately but provisionally transfered to the senate council. Existing rules giving chief and council sole power to call elections would also need amending. Wrongfully impeached chiefs and councillors would not be helpless — they can take their case to the voters and run again. But they would lose spending and administrative powers to the provisional authority to avoid government paralysis. Members of the impeaching senate council would not be allowed to run in the election, to prevent opportunism.
Even these modest improvements would not be easy. Many bands have dysfunctional political cultures, and even if the rules above were adopted, they could be disregarded (even, perhaps, by those who adopted them). Enforcement should fall on the bands themselves — the citizens would be responsible for holding their leaders accountable. This would require a level of civic engagement not always realized on some of Canada's more troubled reserves.
But it's the right way forward. Without the willingness to live by one’s own rules, there can be no self-government, and self-government can only be learned in its practice. Canada's aboriginals are fully capable of running efficient and accountable governments. Most First Nations have already opted for custom systems to rule their communities. Modest improvements to those councils will mean a better, more independent life for Canada's aboriginals.