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| Rob Louie |
Aboriginal groups known as “Bands” elect their chief pursuant to the Indian Act or through a custom code. On the other hand, a hereditary chief is much less talked about, and even less understood, but historically, once held an extremely powerful leadership role. The issues that beset hereditary chiefs is fraught with debate around authenticity and legitimacy, including accountability and decision-making. Nevertheless, elected chiefs and hereditary chiefs appear to be mutually exclusive and jointly exhaustive representatives. A First Nation that possesses these two forms of leadership is now forced to confront the question: “Who is the proper representative within the scope of consultation?” This question has yet to be adjudicated by the courts, so this article will attempt to shed light on this subject by this insider with three decades of experience in the Indigenous sector.
The re-emergence of the hereditary system has created tension with the current elected system, especially when it comes to consultation. Issues of standing also cause delay and consternation. Internal disputes, as a result of this tension, also play out in the public domain as is evident in northern B.C. in the case of the Wet’suet’en people.
While the courts have made it crystal clear that the duty to consult is one that is owed by the Crown to the affected First Nation or Aboriginal group, the courts blurred the line by using “First Nation” and “Aboriginal group” interchangeably. Had the court used the term “the Band” then it would be obvious that the elected chief and council would be the proper representative. However, the courts did not do that. The court did say that the constitutional duty to consult and accommodate is a right to a process, not to a particular outcome. However, it is “the process” within First Nation communities that warrants further attention by the courts and political commentators alike.
The courts have said that the power to make collectively binding decisions is the essence of governance, particularly where those decisions relate to the management of communally held economic and social resources. The courts have also said that it is for the Aboriginal group itself — and not hereditary or elected chiefs — to determine the rules that will be binding on the community, as a general principle or in a specific case. It is ultimately up to the members of an Aboriginal group. This legal and political view has remained a sweet-sounding theory.
However, take, for example, the duty to consult which is now embedded in our constitutional law. The recurring problem with consultation is not so much with the duty itself; rather, it tends to be with the (lack) of meaningful consultation with, for and by the Aboriginal people themselves. Typically, the chief and council will spell out the rules of engagement with their own membership and sign off on it at that the same time. The agenda is invariably set by chief and council rather than by the wishes of the membership. This tail-wagging-the-dog approach has been used in many First Nation communities across Canada.
To say that a First Nation has a voice and right to their economic resources can be misleading. It presupposes that there is an internally entrenched fair process in place within a First Nation to exercise that voice and right. Surprisingly, for a lot of First Nations, there is either a lack of such a process, or, at best, there is a vague policy about it that has been left in “draft” form for a few years or decades. This leaves members of a First Nation with no voice and their right is meaningless.
Band members face a strong presumption against judicial intervention in their internal affairs. The courts are reluctant to weigh in on any sort of proceedings before the recourses have been exhausted. But, again, there is a presupposition of an actual internal recourse available for band members when that is not always the case.
The judiciary, however, owes First Nations something more than just saying it is up to them to deal with it on their own. At the very least, justice demands that some sort of proactive steps be taken to empower band members to help themselves. Judicial notice of the impact of residential school on the administration of First Nations would be an example of a proactive step. Alleged injustices by chiefs are allowed to continue due, in part, to the “residential school mentality” wherein many band members, including elders, that survived say that they were so conditioned to being told what to think that they do not think for themselves, and they accept authority without question — and that includes the authority of their own chiefs.
Yet, perhaps, the answer to all of this is not found in the judiciary.
Both levels of government in this country rely on their own: special advisers, cabinet ministers, standing committees and the Office of the Premier or the Office of the Prime Minister. Most First Nations in Canada also have their own homegrown “leaders,” such as spiritual leaders, matriarchs, academics, lawyers and legal scholars, governance experts, athletes, traditional land-use pundits, and so forth. Just like government, chiefs would be better served these days if they simply created space to bring out their best resource: their own people. What a spectacular sight it would be if First Nations across Canada put forward their best leaders.
Rob Louie is a constitutional scholar specializing in constitutional law and president of Band Members Alliance and Advocacy Association of Canada.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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