Secret documents reveal sweeping new rules for natives
Native leaders warned Ottawa not to re-open the governance file unless it's willing to hold wide-ranging consultations but classified papers show government moving ahead
Globe and Mail. March 3, 2009 at 3:00 AM EDT
OTTAWA - The federal government is secretly planning an overhaul of the rules governing Canada's reserves that is far more sweeping than what Ottawa is telling Canada's chiefs and native leaders. Documents show the government wants to address concerns over the way native leaders are selected, including the fact that not all communities use secret ballots, have clear term limits or written rules for picking leaders. But addressing these very issues triggered widespread protests from native leaders six years ago when the Liberal government brought in its doomed First Nations Governance Act.
Native leaders have warned Ottawa not to re-open the governance file unless it is willing to hold wide-ranging consultations to ensure the changes protect native rights and are affordable to bands.
Now, hundreds of pages of classified documents - including a draft memorandum to cabinet, and other Indian Affairs notes marked "secret" and "protected" - obtained by The Globe and Mail show that the government is moving ahead in these areas with far more limited consultations than what native leaders have demanded. The documents include a series of briefing notes and presentations drafted by Indian Affairs officials over the past year as they prepared a new policy aimed at improving the accountability of band leaders for the funds they receive from Ottawa. The documents make repeated references to the First Nations Governance Act of 2002, noting that
while the Liberals abandoned it due to the controversy, there is still a need to address the outdated rules governing the way reserves are run.
In an interview, Indian Affairs Minister Chuck Strahl said it is "completely untrue" that his department is secretly proposing measures that were in the Governance Act. "There is no legislation planned and so it's not like the Governance Act," he argued. "But my goodness, if you want to scare people in first nations country, you just talk about [former Liberal Indian Affairs minister] Bob Nault's Governance Act." That assurance appears to be contradicted by the documents, which show the areas being addressed in the Conservative reform - such as ensuring secret ballot elections and allowing all off-reserve members to vote - are the very issues that were at the heart of the Liberal initiative. In fact, the minister changed his tone when told The Globe had documents describing the measures as a less-ambitious version of the Governance Act. "Trust me. When we do the review, it won't be to say:
'How do we make things less accountable and less transparent?' " he said.
"And I'd be very surprised if any First Nation nowadays would say the objective is less transparency and less accountability."
One document marked secret and dated Feb. 19, 2008, asks for the approval of Indian Affairs' associate deputy minister to seek cabinet's approval to change the policies for funding band councils. It describes the measures as "less ambitious" and "more modest" than the Governance Act. But it also recommends that the new policies "would not be optional." The documents suggest the new policy will revive the central elements of the Governance Act, including mandatory rules for bands on how to conduct elections and make their spending public to members.
Since the defeat of the Governance Act, Ottawa has faced calls from editorial writers and groups such as the Canadian Taxpayers Federation to revisit the issue of accountability on reserves. While the documents note these pressures, they also show that Ottawa is knowingly exposing itself to the same charge of inadequate consultation that doomed the Governance Act.
The documents say that Indian Affairs scaled back its budget for consulting native leaders to $1.2-million from $5-million, and produced a communications plan aimed at keeping the changes quiet. "A low-profile communications approach is recommended," states one document, titled "communications strategy" and marked "protected." Under the heading "risks," a July 10, 2008, Indian Affairs presentation states that it may look like Indian Affairs "has already decided" on its reforms and that "with little
time and funds, first nation participation will be limited."
After the consultation meetings with some aboriginal leaders, the government is aiming for the changes to take effect on April 1, 2010. Because the changes will be brought in as new policy rather than a new law, they can be implemented without triggering a debate in Parliament over legislation. The documents indicate a desire to challenge the selection of community leaders by "custom," a broad term that allows use of native traditions that do not always involve secret ballot elections or written rules.
Further, another document indicates Ottawa wants to impose access-to-information rules on reserves, a measure the Conservatives were unable to win support for as part of the 2006 Federal Accountability Act. The documents also show the government is not telling chiefs one of its main motivations for changing the way band employee pensions are funded. Indian Affairs told chiefs in a written letter the changes will "simplify" reporting duties.
However, the documents show the change is motivated at least in part by a desire to get Ottawa off the hook in the face of possible lawsuits for under-funding pensions and ignoring mismanagement of pension funds. "It wouldn't surprise me that that's in the mix of discussions and it should be, but that's not the driving force behind the process," Mr. Strahl said.
A spokesperson for Indian Affairs, Margot Geduld, declined to answer a list of specific questions for this story. "We don't comment on leaked documents," she said.
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