First Nations Law

In 2002, the Federal Court in Canada v. Misquadis ruled that Human Resources and Skills Development Canada (HRSDC) had discriminated against the urban Aboriginal community, a decision upheld on appeal (Ardoch Algonquin First Nation v. Canada (Attorney General), 2003). The court determined that Aboriginal political organizations can represent urban Aboriginal interests, and that the HRSDC must provide funding for the infrastructure required to deliver services and establish representative governance. In doing so, the court defined off-reserve Aboriginal people as a group of self-organized, self-determining, and distinct communities, analogous to a reserve community. While reinforcing the political connection between on- and off-reserve Aboriginal people, the court more importantly created an Aboriginal community separate from the reserve. This essay will revisit Misquadis and explore the underlying assumptions about urban Aboriginal communities upset by this ruling.

Section 81 in the Indian Act, RSC 1985, c I-5, contains a broad range of subject matters over which Band Councils may pass by-laws.  To date, this provision has been underutilized by most First Nation governments.  One of the main reasons for this relates to the fact that, for over a hundred years, the Indian Act gave the federal government the power to disallow any such by-laws and Canada historically took a narrow view of the expanse of the Section 81 by-law powers and exercised its disallowance power broadly. Recent amendments to the Indian Act, however, have repealed this disallowance power, giving Bands greater freedom to pass by-laws. Nonetheless, the validity of such by-laws will continue to be subject to review by the courts.  This paper explores the modern interpretation and constitutional principles that will inform the determination of validity of such by-laws and concludes that such principles mandate that the by-law powers should be interpreted expansively and include First Nation jurisdiction over local matters on reserve, including the provision of essential services.  The author argues that First Nations should seriously explore using the Indian Act by-laws in the manner proposed, even though such bylaws have often been denigrated as only a ‘delegated’ and not an inherent form of self-government jurisdiction.  This is so because of the slow pace of self-government negotiations and the urgent need for change in the manner in which key essential services are currently provided on First Nations reserves.

Humans are experiencing a crisis in our relationship with the natural world. Our impact on all other living systems, through climate change, land clearing and use of chemicals and plastics is, frankly, apocalyptic. Yet to speak in these binary terms of 'human' and 'natural' is fundamental to the problem. Having set ourselves so far apart from 'nature' we risk losing track of our biological interdependency with the planet's living systems and atmosphere. This paper inquires into the sources of our alienation from the environment, with the aim of preparing the ground for some tentative solutions. A basic problem derives from our understanding of what it is to be human, one dominant species on a planet that teems with life. What is our relationship to other species? There are many ways to cut into this question. Monotheistic, and particularly Christian theologies have proposed a distinction between 'man and animal' based in the soul and in our relationship to God, The relationship between humans and the environment is becoming unsustainable. Technologies mediate this relationship. In turn, technology is a product of dense cultural phenomena, from research institutions to capitalism, from ethics to cosmology. This paper investigates the 'cosmotechnics' of technical interactions with the environment and explores the sources of these social, ethical and environmental problems. The disconnect between humans and nature is traced to the roots of Western culture, while alternative views have emerged within the West and through its awareness of other cultures. Technology in the West betrays a titanic urge to overcome nature. Since all technologies mesh with their immediate and global environment, invention arises from the interaction between assemblages of humans, machines and the environment. All contribute incrementally to new developments, which are not conscious projects fulfilling specific intentions, but evolving scenarios. Without any clear intentional drive determining technological developments-nor any clear distinction between intended and unintended consequences-the concept of intention has little probative value. Instead, we approach the ethical judgment of outcomes from the viewpoint of responsibility. The social milieu and its actors are to be held to account for the consequences, regardless of intentions. The paper identifies a malaise arising when the products of labour are split from an awareness of agency. This alienation opens up a misrecognition basic to unsustainable technologies. It operates at three discernible levels: technology split from culture; technology split from ethics and values; and theory split from technological practice. Solutions are sought through overcoming each of these gaps.

The United Nations Declaration on the Rights of Indigenous Peoples (2007) implicitly recognizes urban Indigenous self-determination and acknowledges collective and individual Indigenous rights. This essay examines the tensions associated with the Declaration’s acknowledged recognition of Indigenous collective self-determination. The purpose is to expose the complexities inherent when attempting to reconcile the Declaration with First Nations and urban Aboriginal political aspirations, Canadian court decisions, federal Indian policies, and the protective mechanisms of the Canadian Charter of Rights and Freedoms. The author cautions that additional studies are required probing these and other issues prior to First Nation, Aboriginal, and Canadian political leaders venturing forward in their desires to implement and activate the Declaration’s provisions to promote Indigenous community development.

On September 13, 2007, a quarter century after it was first proposed, the United Nations General Assembly overwhelmingly passed the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) by a vote of 144 to 4 (with 11 abstentions). A non‐binding document of considerable moral import, the UNDRIP establishes essential standards for the recognition and protection of Indigenous peoples’ rights internationally by providing both policy makers and Indigenous peoples with a framework to mitigate the disadvantages experienced by many of the world’s 370 million Indigenous people. What has yet to fully be considered is the potential impact anticipated approval will have upon the evolution of urban Aboriginal self‐determination, and Canada’s relationship with the urban Aboriginal community. This report examines the applicability of the 46 articles of the United Nations’ Declaration on the Rights of Indigenous Peoples to expanding the urban Aboriginal governance dialogue in Canada. It concludes by highlighting the difficult issues demanding reconciliation that will emerge during the implementation process.

With the 1979 Community Mandate to move towards Traditional Government, the community of Kahnaw&ke has consistently requested more involvement in decision-making on issues thataffect the community as a whole. The Kahnaw&ke Community Decision Making Process is a response to the community's callfor a more culturally relevant and inclusive process for making community decisions and enacting community laws. The Process is a transitionary measure to assist and facilitate the legislative function of Kahnawd:ke governance. This paper examines the development ofthe process andhow itfunctionsin the modernsettingofKahnawi.ke with the goal of illustrating Indigenous
participatorydemocracy in action.

En 2017, l’Observatoire national en matière de droits linguistiques présentait le colloque "Regards croisés et autochtones des problématiques linguistiques au Canada et au Québec". Or, hormis la seule paneliste autochtone, aucun n’aura questionné la conception différente du droit chez les divers groupes. Pourtant, il est manifeste que les rapports au monde et les schèmes épistémologiques sont construits différemment chez chacune des Nations. Ainsi, afin d’établir des bases honnêtes et ouvertes pour une coopération holistiques dans l’espace universitaire, il apparaît nécessaire de déconstruire certaines assertions et d’accuser certaines impasses dans les idéologies occidentales. À partir d’une analyse de l’imagerie du colloque, passant par des notes mythologiques et philologiques, je présente le contexte sociopolitique de la "découverte des Amériques" en appuyant sur l’évolution de la doctrine juridique et son impact actuel. Enfin, je définis le concept d’identité au territoire qui prédomine dans des sociétés autochtones au Canada.

Section 81 in the Indian Act, RSC 1985, c I-5, contains a broad range of subject matters over which Band Councils may pass by-laws. To date, this provision has been underutilized by most First Nation governments. One of the main reasons for this relates to the fact that, for over a hundred years, the Indian Act gave the federal government the power to disallow any such by-laws and Canada historically took a narrow view of the expanse of the Section 81 by-law powers and exercised its disallowance power broadly. Recent amendments to the Indian Act, however, have repealed this disallowance power, giving Bands greater freedom to pass by-laws. Nonetheless, the validity of such by-laws will continue to be subject to review by the courts. This paper explores the modern interpretation and constitutional principles that will inform the determination of validity of such by-laws and concludes that such principles mandate that the by-law powers should be interpreted expansively and include Firs...

With the 1979 Community Mandate to move towards Traditional Government, the community of Kahnawa:ke has consistently requested more involvement in decision-making on issues that affect the community as a whole. The Kahnawa:ke Community Decision Making Process is a response to the community's call for a more culturally relevant and inclusive process for making community decisions and enacting community laws. The Process is a transitionary measure to assist and facilitate the legislative function of Kahnawa:ke governance. This paper examines the development of the process and how it functions in the modern setting of Kahnawa:ke with the goal of illustrating Indigenous participatory democracy in action.

"Accountability" has been a prominent theme of critics of First Nations governments. Canada's new law, the First Nations Financial Transparency Act, requires First Nations to publish annual audited consolidated financial statements they already prepare (and many already publish), as well as a schedule of chiefs and councilors'’ salaries and expenses.
Don Lenihan, of the Public Policy Forum in Ottawa, pointed out that this law will not end the debate, since "accountability" means more than reporting where money goes: it means reporting decision-making and "outcomes"—why money was spent on one thing rather than another, and what this achieved.  He adds, "When it comes to accountability for outcomes, mainstream governments are only marginally ahead of First Nations — and hardly in a position to lecture them on it."
Polls conducted by Ipsos in January 2013, during protests by Idle No More—including the fast by Attawapiskat Nation Chief Theresa Spence—showed an 81% national Canadian majority opinion that "no additional taxpayer money should go to any Reserve until external auditors can be put in place to ensure financial accountability." The rub is that First Nations already have external auditors, whose reports are public. Suffice it to say that poll answers demonstrate ignorance as well as opinion trends.