3. THE PROGRAM AND SERVICE CONTEXT

3.1. ON RESERVE PROGRAMS

The Canadian Human Rights Act is concerned with equal treatment in employment, housing, and the provision of federal goods and services or those, as with Band or Tribal Council programs, delivered under federal jurisdiction.¹⁵¹ It is therefore appropriate to look beyond the Indian Act’s provisions to how programs and services are actually delivered by First Nations governments.

Most federally funded programs for First Nations people are tied closely to reserve-based governance and delivery. Indian and Northern Affairs Canada (INAC) is involved in funding or delivering a wide range of programs that would, for non-First Nations communities, be typically funded or delivered by provinces and municipalities: social assistance, primary and secondary schooling, child welfare, and a range of local infrastructure support programs for power, water, sewer, roads, and so on. Up to the 1970s, such programs were managed directly by INAC but are now almost entirely controlled by Band governments or Tribal Councils and funded by INAC. Similarly, up to 2001 many of the social programs were restricted to reserve-resident Band members or status Indians; now access is largely based on residence, regardless of status or membership. Accordingly, issues over perceived discrimination in accessing services on reserve may now extend not only to status and/or member residents, but also to any resident, regardless of nationality or entitlement under the Indian Act.

3.2. TRANS-RESERVE PROGRAMS

Only a few programs and services transcend the reserve boundary, but they are of considerable monetary value. Included are Health Canada’s non-insured health program (currently budgeted at some $1.3 billion out of the $2.13 billion federal budget for First Nations and Inuit health programs). The largest general INAC program is post-secondary education (at $325 million).¹⁵²

Uniquely, neither of these programs have needs tests associated with eligibility.¹⁵³ However, other than for local medical transportation, most health benefits are delivered by third-party specialists based on federally determined eligibility, and are thus unlikely to attract CHRA scrutiny for purposes of s.1.2. In the case of post-secondary education, however, Band Councils and Tribal Councils are the main administrators and, given the capped budgets in place, decisions can be expected to attract controversy. Certainly the preference given in some First Nations to Reserve residents or Band members (as opposed to status or registered Indians not members of the Band) is likely to be contested, and discrimination based on family status has already been alleged before the Tribunal.¹⁵⁴

In addition, Band and Tribal Councils may be centrally involved in other programs and services, such as labour market training programs, control over food fishing licences off the reserve, and so on. In the latter case, one might expect that legal traditions and customary laws would play a significant role. Yet the delivery of these programs may become highly contentious where, as has occurred, the First Nation involved excludes non-resident members from voting in elections and also prevents their access to food fishing under a permit system controlled by the Band.¹⁵⁵

Of importance to the program context, various First Nations leaders have asserted that education and health programs engage collective rights under several of the post-Confederation “numbered” Treaties. Accordingly, it is possible for a First Nations respondent to assert that those programs and services directly controlled by a First Nations government are subject to legal traditions and customary laws, rather than being bound only by individual equality norms.¹⁵⁶

4. RECOGNITION AND BALANCING OF INDIVIDUAL AND COLLECTIVE RIGHTS AND INTERESTS: ASSESSING THE IMPACT

4.1. FOUR CASES OF IMPACT: THE POTLATCH, PROPERTY, KINSHIP, AND CONNECTION

By way of exploring how the Indian Act regime has influenced or conflicted with legal traditions and customary laws, let’s look at four areas that involve the traditional distribution of, or access to, goods and/or services within a community.

The Indian Act regime had a significant impact on a major tradition in west coast and interior cultures in British Columbia by outlawing the potlatch (or balhats, as it is also known amongst the interior Carrier people).¹⁵⁷ The potlatch is a broad category of ceremonies that relates to an equally broad range of social, economic, and political functions. From 1884 to 1951 the potlatch was outlawed (though still practiced underground), with the objective of replacing “improvident ways” with largely patrilineal land holding and descent of property rules, as well as an elected Chief and Council system.
The re-emergence and reformation of the governance, land holding, and inheritance traditions of west-coast First Nations, typically associated with potlatch ceremonies, may well become a controversial topic. In such disputes, the Indian Act has clearly distorted common practice and forced a departure from legal traditions and customary laws. It remains to determine whether the contemporary expression of customary laws is communally supported and that general principles of balance with individual interests have been met. However, the Indian Act, like the fur trade and other broadly influential outside forces, cannot necessarily be considered entirely alien in influencing contemporary land holding patterns. Indeed, this would seem no less the case than the impact on traditional laws and customs in relation to land and land use by modern notions of Aboriginal land rights and claims.¹⁵⁸

In the case of kinship, the impact of the Indian Act regime is obvious insofar as membership in Bands was, until 1985, entirely dictated by a patrilineal rule of descent. Less obvious is how the Indian Act affects kinship norms and other institutions, such as inheritance, under customary law. For example, the traditions of families, or clans, might indicate that a niece or nephew who cared for a deceased person is considered the closest kin. The Indian Act regime, however, excludes anyone more remote than spouse, children, or siblings, and if there is no such person, any real property (i.e., a Certificate of Possession) reverts to the Band.

Another example involves what is often referred to within a community context as “relationships,” and entails the kind of case that will arise if status hierarchies or connections within a community find reflection in the distribution of scarce resources, such as employment. As discussed in Part II, status hierarchies are a common feature of many traditional First Nations communities, and may conflict with norms associated with equal treatment in employment. Decisions about employment could well involve the assertion that it is customary, or that it is traditional, to give priority to those with the strongest connections to the community and that “community” might be locally defined in kinship terms that do not follow conventional residence-based, familial, or Band membership connections.

Determining connection to the community could involve Indian Act-based measures, leading to the treatment of re-instated or first-time registered individuals as being relatively “distant” from the community in contrast to those who had always been members. Such a practice would clearly have strong associations with the Indian Act’s historic and continuing entitlement provisions and might well not seem to be giving “due regard.” However, it may be the case that the First Nation had a widely regarded and adhered-to custom of preference in employment in community works that has, over the past quarter century, become commonly associated with “Bill C-31 status” distinctions.

Certainly most persons who have experienced distinction based on their former status or membership might strongly contest the validity of any such “tradition.” In such cases, giving due regard to a common tradition or custom might be very difficult without having some internal, community specific arbitration mechanism available.

4.2. FIRST NATION vs. BAND

It is a truism that First Nations people hold to distinctly “communal” perceptions. It is also widely held that this sense of collective values is sometimes placed in opposition to “individual rights” or, more broadly, “individualism.” As noted in Part II, this sense of opposition is not something one generally finds featured within legal traditions or customary laws. It appears more a response to the intrusion of outside influences and claims to control broader First Nation or local community life.¹⁵⁹

Any discussion of individual and collective rights must address concepts of the collectivity around which and through which individuals associate and identify themselves. The Indian Act’s intrusion into the matter cannot be assigned sole responsibility for disputed collective identities, but it is the dominant source of the much-contested legitimacies of First Nations and Tribal Councils. While many First Nations societies traditionally operated through small family-based bands, these formations were highly flexible, constantly forming and re-forming as a result of economic, ecological, and seasonal, as well as spiritual influences and political leadership factors. The location of such communities onto fixed reserves with gradually decreasing boundaries and increasing populations has no doubt played a significant role in transforming how individual and collective rights and interests are perceived and balanced.

Certainly there are many who regard an Indian Act Band, and especially the reserve community as a “First Nation” proper, and the locus of even sovereign authority.¹⁶⁰ Many others regard this as a result of the Indian Act, and entirely un-traditional. Pursuing the vision of governance elaborated by the Royal Commission on Aboriginal Peoples, these voices seek to build broader nation-level (e.g., Mi’kmaq-wide, Mohawk-wide, or Wet’swet’en-wide) institutions that not only strengthen rights, interests, and capacities, but also advance individual rights, capacities, and opportunities.¹⁶¹

Similarly, the Indian Act has a strong association with reserves. Almost all First Nations hold reserve lands. The first legislative efforts by Upper and Lower Canada, and by the post-1867 Parliament, were directly concerned with protecting such lands from non-Indian trespass and illicit alienation. Accordingly, the powers of Band Councils today are largely restricted to reserve-based activities. The concept of “collective” may have been framed in relation to residence on the reserve. Thus, non-reserve residents may often feel that they are treated as not being a part of the “collectivity” in some matters and that any interests they have are cast as illegitimate and “individual.” Nevertheless, in the context of any particular opposition between individual and collective rights, it is important to appreciate the potential for contested conventions regarding the level at which the collective interest or right operates:

Customary laws were implicit guidelines developed from examples or tacit models of conduct, rooted in spiritual force, similar to instinct in the animal world and as natural as gravity to modern science. These guidelines were captured in oral traditions and rituals, and the shared hardships and joys of living… Mi’kmaq customary law produced a matrix of processes which provided guidelines in broad outline, not precise detail. But its standards were neither universal, objective nor enforced by man-made institutions. Initiating the customary process was a family responsibility, remedy was a clan function.¹⁶²

Legal traditions or customary laws may invoke an intermediate level of authority between the wider community and the individual, most often the extended family, and in more structured societies, a clan. Contemporary expressions of these intermediate bodies may be present under different structures, but still carry out what are traditional functions. Some way to recognize and engage these intermediate institutions may be crucial to finding and realizing a contemporary balancing within a First Nation’s cultural traditions.

4.3. GOVERNANCE AND CONCENTRATION OF POWER: IMPACTS ON COLLECTIVE AND INDIVIDUAL RIGHTS

Another dynamic in perceptions of collective and individual rights and interests involves the distribution of governance in a community. Governance has always been a feature of legal traditions and customary law in some fashion, whether determined by family, clan, band, tribe, or state-like institutions. However, the concentration of extensive powers within a single authority is relatively unknown in most (though not all) First Nations cultures. This concentration of power over scarce resources (particularly the delivery of programs and services) has undoubtedly affected concepts of the individual, the collective, and their proper interrelationship.¹⁶³

From the 1950s through to the 1970s, the instruments of federal spending power became more elaborate and far-reaching. Reserve communities were introduced to systematic social welfare schemes, local primary and secondary education systems, and related truancy laws to compel attendance. The increasing incorporation of provincial child and family services onto the reserve, as residential schools were closed, resulted in the much-admonished “sixties scoop,” when large numbers of Aboriginal children were sent to live with non-Aboriginal middle-class families.¹⁶⁴ The result was a virtual “cradle-to-grave” regime, superintended by local Indian Agents and backed by an increasingly bureaucratic system of district, agency, and regional administration. The Indian Act’s provisions for extensive Ministerial and Cabinet authority to approve, override, or vary Band decisions eroded the transmission of legal traditions and customary law.

However, by the mid-1970s, after the failure of the Trudeau government to gain support for a complete abandonment of the Indian Act system and with the official withdrawal of the White Paper of 1969, discussions began on the potential for Indian self-government. There was, by the early 1970s, no emergent model or accepted middle ground. The government decided to decentralize as much of its directly managed programs and services as possible. This move, led by the withdrawal of all resident Indian Agents by the mid-1970s, followed by the closure of almost all district offices, has expanded over the past quarter century. Much of the administrative control over programs and services has now been transferred to Chiefs and Councils, and to the newly formed Tribal Councils.

Thomas Flanagan’s commentary on this interposition of the Chief and Council system for the formerly centralized and federally controlled “total institution” is worth quoting:

When the demand for aboriginal self-government became irresistible, Canada responded, not by replacing the Indian Act with more appropriate legislation, but by abolishing the position of Indian agent and delegating departmental powers to local governments on Indian reserves. As a result, band governments now possess the same comprehensive control over their people's property, jobs, and housing that Indian agents used to exercise. In too many cases, local factionalism replaces distant administration as an oppressive force in people's lives.¹⁶⁵

The concentration of authority and power is anathema to many traditionalists and a source of concern about how individual rights and interests are and can be respected within First Nations traditions.¹⁶⁶ Some communities have taken steps to introduce a countervailing power in decision-making (through Justice, Housing, Economic Development and other Commissions with arms-length authority from that of Band Councils).¹⁶⁷ Yet in smaller communities, most discretionary authority regarding income, social welfare, housing, and public sector employment is centralized in the Band office.¹⁶⁸ In this circumstance, the pursuit of individual interests and rights can invite considerable risk, not because of any necessary cultural disapproval of individual interests or equality norms, but because of the simple scarcity of goods and services in a community.¹⁶⁹

In summary, the characterization of a claim to equality in treatment may appear within some First Nations communities as a challenge to authority, and might expose the complainant to retribution or, at the very least, social isolation. This is a reality to which the CHRC and the Tribunal must be attuned.

CONCLUSION

The Indian Act’s influence on contemporary social, economic, political, and legal frameworks—those familiar to Canadian jurisprudence and those influenced by local customary practice in First Nations communities—is as undeniable as it is highly complex and mostly undocumented.

The review of the social science and historical literature discloses the following conclusions:

• There is a continuing remnant of the historic discriminatory treatment of women married to non-members, and related distinctions in status and membership entitlements as between cousins and, in some cases, siblings;
• A non-traditional concept has crept into the dialogue concerning “collective” inclusion and exclusion boundaries, most often associated with status entitlement distinctions, and with reserve residence;
• The contested nature of Band Councils (and in some cases Tribal Councils) as “creatures of the Indian Act” remains potent, particularly in relation to claims that First Nations governments are acting in accordance with legal traditions or customary law;
• There is a suspicion common in some communities that “Bill C-31” Indians and long-time non-residents are importing alien and threatening conceptions of “equality” and “individualism,” particularly when they cite Charter or Human Rights legislation; and
• The potential isolation and even retribution of complainants is a real concern given the degree of concentration of power and discretion over services vested in First Nations governments.

CONCLUSION: FRAMEWORKS FOR THE ACHIEVEMENT OF BALANCE

This part of the study consolidates the results of our review of the legal and social science literature, and the Indian Act’s impacts. It sums up the main conclusions about individual and collective rights, balancing, and First Nations legal traditions and customary laws. As well, it introduces the two main conceptual frameworks most likely to be applied in considering First Nations legal traditions and customary laws. These frameworks are:

1. The “Supplemental” Approach: Adapting Human Rights and Charter Law to First Nations legal traditions and Customary Laws

2. The “Stand-Alone” Justification: The Aboriginal and Treaty Rights Framework

1. CONCLUSTIONS FROM THE LITERATURE REVIEWS AND INDIAN ACT ASSESSMENT

There are several conclusions that can be drawn regarding the challenge presented by Bill C-21 in achieving a balancing of individual and collective rights and interests. Our study has examined the question from a number of vantages:

• The background context of the original exemption of the Indian Act from the application of the Canadian Human Rights Act;
• An analysis of the relevant provisions of Bill C-21—notably s.1.2—against the legal literature and case law;
• A review of the historical and social science literature; and
• An assessment of the impact of the Indian Act regime on concepts and ideas about both individual and collective rights and interest.

It is important to caution against arriving at any definitive conclusions. The origin and nature of the “balancing” provision in Bill C-21 is unique and has few if any precedents in Canadian legislation. It is the first time a quasi-constitutional human rights statute has been required to give “due regard to First Nations legal traditions and customary laws, particularly the balancing of individual rights and interests against collective rights and interests, to the extent that they are consistent with the principle of gender equality.”

1.1 SCOPE AND TIMING OF s.1.2’s IMPACT

As discussed in Part I, there is a set of key questions facing the implementation of Bill C-21, in particular concerning the obligation to give “due regard” to First Nations legal traditions and customary laws:

• What is the meaning of “First Nation government”?
• What activities trigger the obligation to give “due regard”?
• When and for which First Nation government activities does the repeal of s.67 take effect?

This set of questions is almost entirely a matter for legal guidance; drawing upon the legislative context of Bill C-21, the case law and the legislative precedents for the term “First Nation.”

Of key importance is the fairly narrow purpose of Bill C-21, which was to end the 1977 exemption of activities covered by the Indian Act. However, equally important is the wording of s.1.2’s “due regard” requirement, which clearly goes beyond the restriction in s.3 of Bill C-21 (dealing with the 3-year suspension of complaints against First Nation governments in relation to the Indian Act).

1.2 THE MEANING OF “LEGAL TRADITIONS AND CUSTOMARY LAWS”

This essential topic engages legal, social science, and historical literature. It is also the most unlikely arena for definitive conclusions, if only because so few cases exist where a positive incorporation of Aboriginal customary legal systems into state-based law has occurred. The legal literature suggests a variety of meanings and related tests for what legal traditions or customary laws entail.

The historical and social science literature—particularly that of anthropology—offers a richer context-based or localized understanding of traditions and customary practices, including law-like behaviour, but this level of analysis does not lend itself to broader understanding. The internal comprehension of cultural practices and laws is generally not applicable to broader, trans-cultural findings. Nevertheless, there are certain constants in understanding both “legal traditions” and “customary laws” within the social science and historical literature.

1.3 BALANCING INDIVIDUAL AND COLLECTIVE RIGHTS AND INTERESTS

The challenge provided by Bill C-21 regarding the concept of “balancing” is two-fold. Section 1.2 asserts that the balancing required is of individual rights and interests “against” collective rights and interests, an approach that seems to assume conflict where in fact no opposition may exist. The reference to “balancing” in s.1.2 is not a “stand-alone” requirement, but is instead subordinate to the need to give “due regard” to “First Nations legal traditions and customary laws.” This implies that giving “due regard” means taking into account any balancing that occurs within First Nations legal traditions or customary laws.

As discussed in Parts I and II, the first challenge—that of assuming an opposition between collective and individual rights—is familiar to human rights or Charter law: indeed, it is the norm. However, an oppositional presumption is not common within First Nations legal traditions or customary laws. While a conflict-based relationship of rights and interests might exist for non-members or persons whose interests are not communally based, this would not necessarily occur where the individual was part of the community. Where a community member or a person closely connected to the community is concerned, a legal tradition or customary law should accommodate if not advance individual rights and interests. Where such an accommodation is not evident, the tradition or law concerned might merit serious question.

In addition, balancing rights and interests can only occur to the “extent that they are consistent with the principle of gender equality.” Therefore, this latter principle places a specific limitation upon how these rights and interests are susceptible to being balanced if there is a potential conflict with the overriding goal of “gender equality.”

The second challenge deals with an interpretation of Bill C-21 that sees any requirement to “give due regard” only where there is an accepted First Nation legal tradition or customary law that also balances individual against collective rights or interests. If such a balancing is absent, or such traditions or laws are not invoked as relevant, then the CHRA would be applied as it would against any non-First Nation respondent.

It is clear that further exploration is required to inform a robust understanding of several important matters implicated by the challenge of balancing individual and collective rights and interests in the context of First Nations legal traditions and customary laws:

• Consultative approaches for the determination of legal traditions or customary laws, as opposed to externally invasive efforts to “validate” sometimes contested traditions or laws, need to be developed; and
• The assessment of particular customs and traditions—those most likely to be invoked in connection with the CHRA—needs much further work, if only to glean a better understanding of how individual rights/interests are accommodated within such traditions, or indeed may be suppressed in favour of communal interests and goals.

Footnotes

1. In respect of the delivery of programs and services funded by INAC, Tribal Councils should not be confused with either the anthropological term "tribal" or with councils formed for treaty or land claims assertions, negotiations, or settlements. The 80 or so Tribal Councils that INAC regularly funds came about because of a 1980s effort to achieve "economies of scale" and to have organizations linking adjacent or culturally connected Bands take over functions of the agency and district offices INAC was then wrapping up. They deliver technical services, engineering contracting, and some centralized program administration, such as post-secondary education for their member First Nations. Accordingly, these Tribal Councils are "twice-delegated" in nature, requiring a mandate from their constituent Bands in order to deliver the service involved, and as well needing the approval and funding of INAC.
2. NIHB figures are drawn from the Estimates, Part II, for 2007–2008. INAC’s post-secondary assistance program costs are not reported in the Estimates apart from the total education expenditure authority of $1.424 billion for 2007–2008. However, it is generally accepted that the PSEAP program costs approximately $325 million.
3. In the U.S., Australia, New Zealand, and elsewhere, similar programs are delivered, but all are means tested, and all are available to the entire Aboriginal population who meet the respective country’s constitutional definitions (in the U.S., this requires membership in a federally recognized Tribe, a matter entirely determined by the Tribes themselves). In Australia and New Zealand, in contrast, entitlement is based, broadly, on self-identification, descent, and community acceptance.
4. McAdam v. Big River First Nation, 2009 CHRT 2 (CanLII). The Tribunal declined to substantiate the claimant’s position of discriminatory treatment.
5. An unreported 1997 case between the Essipit Band (now referred to as the Pessamit Band) and several members (Quebec Provincial Court).
6. See page 3, Peter Alan Barkwell (1981), "The Medicine Chest Clause in Treaty No. 6." Canadian Native Law Reporter: 1–23, and John L. Taylor (1986), Two Views on the Meaning of Treaties Six and Seven: An Examination of the Significance of Treaties Six and Seven in the Light of Archival Records and Indian Testimony, Ottawa: Indian Claims Commission.
7. See Jo-Anne Fiske and Betty Patrick (2000), Cis Dideen Kat, When the Plumes Rise: The Way of the Lake Babine Nation Vancouver: UBC Press. See also Tina Loo (1992), "Dan Cramner’s Potlatch: Law as Coercion, Symbol, and Rhetoric in British Columbia, 1994–1951," Canadian Historical Review 73(2): 125–166. On the Tsimshian potlatch, see Christopher Roth (2002), "Goods, Names and Selves: Rethinking the Tsimshian Potlatch," American Ethnologist 29 (1): 13–150.
8. For a discussion of the distortions faced by customary law and tradition by modern land claims and the notions of "aboriginal title," see Paul Nadasdy (2002), "‘Property’ and Aboriginal Land Claims in the Canadian Subarctic: Some Theoretical Considerations," American Anthropologist 104(1): 247–261.
9. For a Canadian-specific discussion on this point, see Will Kymlicka (2001), Politics in the Vernacular: Nationalism, Multiculturalism and Citizenship, Oxford: Oxford University Press: 83. A more cross-cultural discussion of the issue is David Howes (2005), "Introduction: Culture in the Dominions of Law," Canadian Journal of Law and Society / Revue Canadienne Droit et Société 20(1), ft. 62.
   • This axiom is assumed, without being firmly insisted on, by the 1982 founding Charter of the Assembly of First Nations.
   • This stance was clearly advanced by the Royal Commission on Aboriginal Peoples, which concluded that only in rare cases would Bands now constituted under the Indian Act also be found to be "First Nations" with constitutional standing and capable of exercising aboriginal and treaty rights: Royal Commission on Aboriginal Peoples (1996) Vol. 2, Restructuring the Relationship, Part I, Chapter 3, Minister of Supply and Services Canada. For the Commission’s summary of various First Nations views on the matter, see pp. 157–161.
   • William B. Henderson (1985), "Native Customs and the Law," Research Paper prepared for the Research Branch, Corporate Policy, Indian and Northern Affairs Canada.
   • For a discussion, see Craig Proulx (2001), "Current Directions in Aboriginal Law/Justice in Canada," Canadian Journal of Native Studies 20(2): 371–409.
   • Patrick Johnston (1983), Native Children and the Child Welfare System, Ottawa: Canadian Council on Social Development.
   • Thomas Flanagan, "Bring Democracy to Indian Reserves," Globe and Mail, 20 December 2006. For a similar view on the concentration of powers, but one that disputes some of Professor Flanagan’s core presumptions, see Gordon Gibson (2009), A New Look at Canadian Indian Policy: Respect the Collective—Promote the Individual, Vancouver: Fraser Institute: 171–173. Available online at:

• Val Napoleon (2007), "Thinking about Indigenous Legal Orders," Research Paper for the National Centre for First Nations Governance: 18-19; also see Taiaiake Alfred (2008), Peace, Power, Righteousness: An Indigenous Manifesto, 2^nd Ed., London: Oxford University Press.

• See, for example, the discussion of the re-emergence of clan-based decision-making in Anishinabe communities: Patricia D. McGuire (2008), "Restorative Dispute Resolution in Anishinabe Communities—Restoring Conceptions of Relationships Based on Dodem," Research Paper for the National Centre for First Nations Governance.

• This is a rarely documented reality. For several years, CBC Radio’s "Dead Dog Café Comedy Hour" (1997–2001) featured weekly send-ups of Band office politics, and it is in this genre that the issue is perhaps most frequently analysed.

• For a discussion on small First Nations and the difficulties faced in combating the concentration of power, see Calvin Helin (2006), Dances with Dependency: Indigenous Success Through Self Reliance, Vancouver: Orca Spirit Publishing.