Letters: Concerns about the First Nations Land Management Act

Canada is still fighting First Nation rights and ignoring Supreme Court orders

To the Expositor:

There is growing concern amongst band members of the Wikwemikong Unceded Indian Reserve. It appears that chief and councillors may have been coerced by an infamous federal strategy that is designed to offload the Crown’s fiduciary responsibility to First Nations for lands and resources within First Nation territories. The legal implications of the First Nations Land Management Act (FNLMA) are not yet fully understood, as the membership has not seen a legal analysis addressing the unique questions underlying Wikwemikong’s Unceded status. This will not likely get a fair hearing once this status is compromised by the legal release of the Crown’s fiduciary responsibility to Wikwemikong Band Membership and the subsequent conversion of reserve lands.  

It appears that many band members are not fully aware that their chief and council, who were elected through the usual Indian Act election process, is now operating under its interpretation of the new constitution approved by a vote in 2014. The introduction of this “land law,” which is a “land code” under the FNLMA, was originally presented as a law developed in Wikwemikong to cover the needs, aspirations, issues and concerns of Wikwemikong Band members. After some research, it was discovered that the “constitution” created by Wikwemikong Band leadership is almost identical to consititutions developed by other bands in Ontario.

Band members have been told that the Band was developing these laws themselves. However, further research revealed that Government or Land Management Board templates may have been used to develop six new laws in Wikwemikong adopted since 2014. This could have far reaching implications as chief and council have not been transparent about what plan they have been following, how it was developed and by whom. It appears the current iteration was not presented to, created or authorized by the community members in any substantive form. This exposes the lack of transparency and accountability in our new laws. 

It seems that very few are supporting this proposal locally, which raises many questions about what makes for effective communications and the quality of information that should be provided to band members respecting band council activities regarding their laws. In this case, it doesn’t appear many councillors are very well informed about any of the legal issues involved with our land title. Council could not have been properly informed and therefore, could not possibly understand the history behind these government policies and legislation.

Despite community concerns about the increased use of in-camera sessions by council, it appears they believe they can impose policy and legislation without any express agreement or direction to do so from the membership. If this interpretation of the Constitution is allowed to stand, it is directly opposed to the concept of leadership in service to membership. The direction of the people (membership) has always guided our leaders and has been our custom and our true understanding of G’chi-Naaknigewin from the past.

The FNLMA itself requires that voters receive at least five documents before being asked to decide on the “land code.” These include: (1) a copy of the land code; (2) the FNLMA itself; (3) the “Framework Agreement;” (4) copies of the approved by-laws which will be included under the “new land regime;” as well as (5) the “individual agreement.” The “individual agreement” is presumably where the terms of reference guiding this work and how these laws will be applied is approved by the Wikwemikong Band Council and the federal minister on behalf of Canada. While the chief is telling members that the council has authority to decide this, some community members doubt that all council members have even seen or read the five crucial items listed above. 

There has been a distinct lack of information and dialogue regarding the release of the Crown’s ongoing fiduciary obligations and the fact that those same fiduciary obligations are thereafter assumed by chief and council. Our Band will be alone in terms of financing land management, while following regulations put in place by Canada’s legislation. They will have little choice but to look at leasing land, imposing taxation and user fees to raise money, which has never been thoroughly discussed in this community, which has traditionally opposed leasing land as an economic development tool. The main purpose of the FNLMA is to reduce the red tape involved in leasing reserve land and it gives the Band Council full authority to lease reserve land with no consultation with membership, as long as it is done in accordance with the new federal regulations. 

The First Nation Land Management Act has been amended six times in its brief 20-year history. Successive governments continue to reinterpret “opting out” of specific provisions of the Indian Act. First Nations across Canada have opposed this since its inception in the early 1990s, when it was soundly condemned by the vast majority of First Nations. Now there are a whole array of these “optional” legislation bills that replace Indian Act provisions with new federal laws that terminate the Crown’s long-standing responsibilities to First Nations.

These old deceptive tools were resisted by all but a few since 1999. First Nations did not want a risky, legally ill-defined approach to self-governance to become “The Option.” The Liberal government claims to be pursuing a new positive approach. However, it seems little more than a ruse for making it ever easier for First Nations to sign on. Few First Nations seriously entertained the current framework beyond the original dozen or so who wanted the option in the first place. Over the past two years Canada is now claiming over seventy new adherents to the FNLMA, which raises some interesting questions.

These Acts, Canada says, will not affect aboriginal and Treaty Rights, but these claims are false. Canada says nothing prevents First Nations from pursuing legal claims arising from the Crown’s past breaches of its lawful obligations for the management of First Nations lands and other assets. We know there are already a couple thousand of these types, although federal officials are trying to muddle that picture as well. At present, here is neither a clear pathway or much by way of leverage to get these outstanding claims settled. Nor is there any defined framework or transparent process for releasing the Crown from its responsibility while assuming full management without regard to past damages. This is foolish if there are no assets in the community and there is nothing substantive demonstrating capacity to adequately replace Crown financial responsibility for implementing its laws.

Some members are voicing a bigger concern with this new approach to governance in terms of accountability and the lack of effective mechanisms for information sharing and band member participation.  Those who voted in good faith to support the new G’chi-Naaknigewin are facing unexpected challenges to their possession of lands on the reserve. Some are growing more concerned with the apparent lack of membership direction in local priority setting. The Liberal government is still implementing the same federal policies designed to limit Indigenous rights while minimizing federal responsibilities and liabilities, regardless of the words they use to imply there is some kind of change going on. 

Canada is still fighting First Nations rights and ignoring Supreme Court Orders. The covert federal objectives remain to reduce the growth in federal spending and to limit the ultimate definition of all inherent, aboriginal and Treaty rights, and the inherent right to self-government, in particular. Although we have fought for this recognition for many decades, other governments keep stealing our terminology, where we have to change it every few years. Federal officials do everything they can to steer First Nation communities into legislated provisions like the FNLMA (see Canada web site on land management) and similar policies as it meets their main objectives of reducing federal Crown fiduciary responsibility, which is a big part of the leverage required to get federal officials to deal with such claims honestly. 

The chief and council of Wikwemikong Unceded Indian Reserve appear to have been brought under a spell. They must believe the propaganda surrounding these Indian Act “alternatives,” where they are taught economic development requires capital investment and various private sector vehicles can be used to finance First Nations governance, etc. They must feel like big-time investors who are helping their people somehow. It is a false dream. 

Our land is our foundation, our Mother—not a commodity or simply capital to be managed for profit. Our Peoples do not view land this way. 

Rolland Pangowish

Wikwemikong Unceded Indian Reserve