Menu

Democracy and aboriginal self government: Considering the rights of non-aboriginal residents in First Nation jurisdictions

Posted on

In 1999, a group of non-band leaseholders on Vancouver’s Musqueam Indian reserve expressed concerns to the B.C. Civil Liberties Association (BCCLA) that they were treated unfairly under the Musqueam Band’s property tax regime. Their concerns are not about the leases that are the focus of the November 2000 decision of the Supreme Court of Canada and of much media attention. Rather, their complaint is that they have little, if any, ability to participate democratically in the new property tax regime run by the Musqueam Indian Band. They asked the BCCLA to consider the issue.

At the outset, it became evident that the issue the complainants raised is not geographically specific to the Musqueam reserve nor is it confined to issues of property taxation. British Columbia has embarked on a course of negotiating treaties with aboriginal peoples that has important implications for the approximately 20,000 non-aboriginal people who presently live on Indian reserves (including reserves with large non-aboriginal populations such as West Bank-Kelowna, Tsawwassen and Musqueam), and people who may one day live in a treaty jurisdiction.

In addition, a whole range of “matters of governance” beyond property taxation will be part of aboriginal self-government in the future and may also have important implications for the lives of non-aboriginals.

Whether in the realm of education, land use management, social policy or other matters, aboriginal governance will clearly affect non-aboriginal people.

The BCCLA’s Board of Directors spent the better part of 2000 consulting with interested groups and debating these issues to arrive at a principled position. Our goal is to provide a civil liberties perspective regarding the role non-aboriginal residents should be entitled to play in an aboriginal self-government model. We hope our position will inform the ongoing public debate about how to resolve the tension between aboriginal self-government and the interests of non-aboriginals.

The BCCLA position on this issue is a companion piece to our position paper that supports the Nisga’a Treaty1. Though the Association supported the Nisga’a Treaty, we realized at the time that there remained important work to ensure the democratic rights of non-aboriginal people in aboriginal jurisdictions are understood and protected.

Principle 1

Aboriginal authority to impose property taxes on non-band/First Nations2 leaseholders under the Indian Act raises civil liberties concerns. The use of such authority is an example of a First Nation acting as a government authority, rather than as simply a party in private contract. Aboriginal taxation authority is part of a greater trend to provide First Nations with greater autonomy culminating in self-government treaties.

Civil libertarians are concerned about the implications for democratic participation of residents of aboriginal jurisdictions who are not band members.

Some people argue that the dispute regarding taxation on native lands is really a disagreement between a landlord and tenant, rather than a democratic rights issue. This is, they suggest, a fight between a property owner, who normally sets the rules, and a tenant, who must abide by them or move elsewhere. As tenants, non-aboriginal leaseholders have no right to make rules. This power is completely in the hands of the owner.

The BCCLA does not agree with this argument. The power to make rules regarding property taxes under the Indian Act or any self-government regime is an example of public governance in the fullest sense, not merely a matter between two private parties. The federal government clearly intended, when they changed the Indian Act, to allow Indian bands to assume property taxation authority, to enhance the autonomy of Indian bands. This is supported by the debates in Parliament regarding the amendments. In speaking to the amendments, Stan Schellenberger, the Parliamentary Secretary to the Minister of Indian Affairs and Northern Development, said:

One of the most important by-law powers that bands need is their power to tax use of the land. That brings me to the second purpose of these amendments, which is to establish clearly that band councils have the power to tax any interest or use of reserve lands in order to defray their costs as the government of that land. Such taxation power is obviously indispensable to any form of modern government.

Some bands may not wish to use this power, but it must be there for bands which wish to exercise it.

In fact, section 83 of the Indian Act has provided a taxation power for band councils since 1951. It is possible, however, that the power might only apply to Indians. It may not, as presently worded, apply to non-Indian leaseholders. The amendments will make certain that non-Indians are covered.3 (emphasis added)

Property tax, by its very nature, is an act of government, not a landlord’s right. Landlords cannot impose taxes unilaterally that have the force of law. Only governments can.

Nor should this property tax be viewed as a “fee for service”. The Musqueam Indian Band Property Tax Expenditure Bylaw (1998-01) authorizes the Band to spend property tax revenues on a wide variety of public works, community works and services. Like other bands’ expenditure by-laws, the Musqueam one allows the band to spend property tax revenues on public goods that benefit the entire community, not just taxpayers directly. Property taxes are a function of government, not merely the a landlord’s fee precisely because they can be spent on services for the entire community, rather than only to provide services for the leaseholders.

This issue is not confined to just property taxation under the Indian Act. Property taxation is only one of many government powers. First Nations may also exercise government authority under treaties, as they are concluded, or interim measures, such as powers over land management that exist under Bill C-49, the First Nations Land Management Act4.

As we move to greater aboriginal self-government, society, and the BCCLA, clearly must put its mind to the issue of democratic rights for non-aboriginals.

Principle 2

People who live in aboriginal jurisdictions, but are not members of the aboriginal community, have no right to membership in the aboriginal political community.

Aboriginal people have exclusive authority to govern matters that primarily relate to aboriginal people and their communities, and do not significantly and directly affect the interests of non-aboriginals. For example, subject to treaty agreements with the federal and provincial governments, non-band residents on treaty lands should have no say in the creation or administration of schools created exclusively by and for children of the aboriginal community.

This principle is part of our position on the Nisga’a treaty. Our position on Nisga’a supports First Nations’ right to make decisions for themselves regarding matters that directly and primarily affect only their interests as aboriginal people. That is, it gives them exclusive authority over a presently undefined core of powers that are necessary to the exercise of aboriginal self-government. People who are not members of the band cannot encroach on that authority. If non-aboriginal people had a right to membership in the aboriginal political community, aboriginal self-government would be seriously undermined.

Generally speaking, residing within the bounds of a political community, although important, is never enough on its own to qualify one for membership in a political community. For example, landed immigrants and refugees cannot vote in Canada until they become citizens.

Though non-aboriginal people have no inherent right to qualify for membership in an aboriginal political community, the aboriginal community may decide to bestow such membership on non-aboriginal people. Rules of membership may be created by that community. For example, the Nisga’a treaty empowers the Nisga’a people to make rules about who qualifies for Nisga’a citizenship.

Principle 3

Residents of aboriginal jurisdictions have a right to participate meaningfully in decision-making regarding matters that directly affect them.

Principle 4

Canadian citizens who are not members of an Indian band have a right to participate in government decision-making that affects them in aboriginal jurisdictions because they retain some significant degree, though it may be necessarily attenuated in aboriginal jurisdictions, of their sovereign status throughout Canada. The right of citizens to participate meaningfully in decision-making is a fundamental characteristic of Canada’s democracy.

These two related principles are the heart of the BCCLA’s position. The first asserts a right of non-aboriginal people to participate in decision-making in aboriginal jurisdictions, but only to the extent that a matter significantly and directly affects them. The second principle provides the philosophical justification for that right. When addressing past injustices visited on Canada’s aboriginal people, we must make sure that new injustices are not created. Aboriginal self-government that does not make room for non-aboriginal people jeopardizes this search for justice. The BCCLA considered two justifications for the claim of non-aboriginal participation. The first depends on the concept of “fairness”. As people subject to rules, non-aboriginal people should be able to participate in those decisions that affect them because giving them a chance to participate will promote greater social harmony between aboriginal and non-aboriginal people. The BCCLA rejected this argument because it relies more on the wisdom of permitting non-aboriginal participation than on a principled claim. Furthermore, fairness only requires due process protections, such as the right to make submissions, rather than the right to sit at the table where decisions are made. Non-aboriginal Canadian citizens who live on aboriginal lands are not merely visitors or refugee claimants in Canada, and therefore should have a right to more meaningful participation.

Instead, the BCCLA prefers a stronger justification that begins with the premise that non-aboriginal and aboriginal people alike, despite their significant differences, share common citizenship in a larger political community—Canada. Similarly, aboriginal self-government is itself a creature of Canadian sovereignty.

Though aboriginal autonomy obviously existed prior to European contact, it remains a part of and subject to Canada’s constitutional structure. Canada, as a democracy, also recognizes that all Canadians, whatever our ancestry or heritage, are self-governing people. As such, we must all have the opportunity for meaningful participation in decision-making about the rules we use to govern ourselves. That is the promise of democracy.

There is a variety of sources that reflect this justification for non-aboriginals to claim a right to participate meaningfully in decision-making. The Canadian Charter of Rights and Freedoms, of course, enshrines democratic rights including the right to seek election and the right to vote, both proxies for meaningful participation in decision-making. The Supreme Court of Canada in Reference Re: Secession of Quebec stated that the values and principles of a free and democratic society include, among other things, “faith in social and political institutions which enhance the participation of individuals and groups in society”.

Even the Royal Commission on Aboriginal Peoples recommended the interests of non-aboriginal people be respected when establishing First Nation governments by permitting participation in governance.5

It is also worth noting that the Nisga’a Treaty itself enshrines the principle of participation at least with respect to “Nisga’a public institutions” (e.g. school, health or police boards, if established).6

In sum, the BCCLA believes that self-governing aboriginal authorities must also respect the rights of minorities within their jurisdictions non-aboriginal Canadian citizens who live in aboriginal jurisdiction.

Principle 5

To balance the competing principles of aboriginal self-government and non-aboriginal residents’ right to participate in decision-making, when the non-Native population is close to, equals or outnumbers the aboriginal population in an aboriginal jurisdiction, then procedures must be weighted to respect aboriginal self-determination.

In some aboriginal jurisdictions, non-aboriginal residents outnumber the aboriginal population. This poses a conundrum with respect to the competing principles of aboriginal self-government and meaningful participation for non-aboriginal residents since non-aboriginal residents, if they vote en bloc, could effectively undermine aboriginal autonomy on any government matter that is of “shared jurisdiction”. The question for the BCCLA, and anyone thinking about this subject, is how to respect aboriginal autonomy and yet permit meaningful non-aboriginal influence.

Typically, civil libertarians advocate a “one person, one vote” system for electing representatives. However, Canada’s democracy recognizes that there are departures from this norm in order to recognize “communities of interest” and other factors. For example, electoral boundaries diverge from a norm of absolute equality of voting power. In Reference Re: Electoral Boundaries Commission Act, ss. 14, 20 (Sask.), the Supreme Court of Canada ruled that section 3 of the Charter protects “effective representation” rather than absolute voter parity. The Court stated that electoral boundaries must diverge from the one person, one vote standard to ensure that “our legislative assemblies effectively represent the diversity of our social mosaic” and cited various factors to consider when deciding whether to justify a departure from absolute voter parity including geography, community history, community interest and minority representation.

Some might argue that an asymmetrical system would confine non-aboriginal residents to perpetual “official opposition” status and would provide little political influence for non-aboriginal residents. Though it is true that a non-aboriginal resident population voting en bloc could never overcome the aboriginal population if they themselves voted en bloc, it is not true that this would effectively disempower non-aboriginal people. First, Canada’s democracy is full of examples where opposition parties do influence law and policy. Second, it is far from certain that an aboriginal population would vote en bloc. As in any political community, there may well be alliances between aboriginal and non-aboriginal interests on specific issues. Third, when there is voting for an elected representative, if there are multiple candidates, rather than simply a choice between an aboriginal candidate and non-aboriginal candidate, votes from the aboriginal and non-aboriginal populations will be distributed in a variety of ways, perhaps resulting in the election of a non-aboriginal person.

An asymmetrical system is a reasonable compromise that balances the goals of aboriginal self-government and meaningful participation for non-aboriginal residents. An asymmetrical system will be critical in urban aboriginal jurisdictions that have larger populations of non-aboriginal people.

It is not reasonable to expect aboriginal community to simply limit the number of non-aboriginal residents to maintain an aboriginal majority. While this is a potential solution, it ignores the fact that the primary source for urban First Nation communities’ economic development lies in the rental value of their territory. To require these communities to choose between real estate development necessary for the wealth of the community, yet forego the potential for political autonomy or, alternatively, to forego economic development to maintain an aboriginal majority, undermines the aims of aboriginal self-government. Without the economic tools to create wealth, a major problem for aboriginal communities, there can be no effective self-government.

Furthermore, just because a government matter may significantly and directly affect non-aboriginal residents, it does not follow that it will affect them more significantly and more directly than the aboriginal community.

In fact, the opposite will likely be true in many cases. It would be unjust to give more influence to non-aboriginal people in decision-making on a matter or issue that has a greater impact in the long term on aboriginal interests.

The BCCLA does not take a position on what is an appropriate weight for influence of the respective populations for two reasons. We have no particular expertise regarding what would be an appropriate weighting of aboriginal or non-aboriginal influence.

However, we do believe that the influence of the non-aboriginal population should not be reduced to a level that would be wholly disproportionate and effectively undermine it. Weighting should be left open for discussion and negotiation in treaty making. However, we hope that an asymmetrical solution would be consistent in different aboriginal jurisdictions.

Principle 6

Non-aboriginal residents’ participation may reflect the process of decision-making used by the aboriginal community. For example, if an aboriginal community uses a consensus-based decision-making process, then non-aboriginal residents might sit at the table and participate as equals in the deliberations. If the aboriginal community uses democratic institutions like voting or appointing representatives, non-aboriginal residents might participate in the same way as First Nations people. A purely advisory body for non-aboriginal residents will only be “meaningful” if the residents agree to forego other types of participation.

How do we define “meaningful” when we say that non-aboriginal residents have a right to participate meaningfully in decision-making that significantly and directly affects them? There has been considerable controversy regarding the Indian Act‘s imposition of Western traditions of political participation in the form of conventional democratic election procedures for band councils. Some argue this process does not reflect aboriginal traditions. Aboriginal communities should be able to incorporate traditional aboriginal decision-making, but whatever process an aboriginal community chooses to use, non-aboriginal residents cannot be left without a seat at the table.

If a consensus-based decision-making model is used and non-aboriginal people also participate in this model, non-aboriginal people may have more power than they would under a democratic model, since they can effectively veto aboriginal wishes. But this need not be so if non-aboriginal residents are subject to a democratic system for their participation, while the aboriginal population chooses a form of decision-making that is more consistent with their traditions.

Implicit in the BCCLA’s principles is the recognition that matters of aboriginal government authority fall into two categories. Either the matter will be within the exclusive jurisdiction of the aboriginal political community and touches primarily on only their interests. Or, the matter will be in a jurisdiction shared between the aboriginal and non-aboriginal population.

The matters that fall in each jurisdiction cannot really be decided in advance without full knowledge of how authority will be exercised by an aboriginal government. For example, primary and secondary education may only be a matter of exclusive jurisdiction if the aboriginal community creates an education system designed exclusively for aboriginal students. Conversely, where there is a system that serves the non-aboriginal population as well, it will be necessary to provide for meaningful participation for the non-aboriginal population.

Some may object to this arrangement because it may be difficult to determine what matters “significantly and directly” affect non-aboriginal residents. Though it may very well be difficult at times, we do not believe that it is impossible to find solutions. Certainly, Canada has considerable experience with a federal system of government that shares authority between the federal government and the provinces. As with our federal system, a critical component of a system of aboriginal self-government that shares political power between two jurisdictions will be to ensure that there is a dispute resolution mechanism that is fair, just and can respond efficiently to disputes as they arise.

Conclusion

As British Columbia embarks on the complex journey to address past injustices, it is important to ensure that the rights of non-aboriginal people are not overlooked. The BCCLA supports aboriginal self-government models that ensure non-aboriginal people have a right to participate in decision-making on issues that directly affect them.

Notes

  1. Our position on the Nisga’a treaty is on our web site at http://www.bccla.org/newsletter/98nisgaa.html.
  2. For the purposes of this paper, the term “Non-band/First Nations” is used to describe non-aboriginal people, but also is meant to distinguish residents of aboriginal descent who are not members of a specific aboriginal community. This term is used to recognize the diversity of aboriginal communities and their distinct memberships.
  3. Canada, House of Commons, Hansard, 2 June 1988 at 16047.
  4. This federal bill received royal assent on June 17, 1999.
  5. “Recommendation 2.3.16: When Aboriginal people choose to establish nation governments,
    (a) The rights and interests of residents on the nation’s territory who are not citizens or members of the nation be protected.
    (b) That such protection take the form of representation in the decision-making structures and processes of the nation.”

    —From the Report of the Royal Commission on Aboriginal Peoples (RCAP) (1996), 279-80.

    The 1997 comments of commissioners Dussault and Erasmus to the Commons Standing Committee on Aboriginal Peoples also reveal the RCAP’s position: “On aboriginal lands, if there are to be extended lands, as Georges said, people are marrying out in the proportion of 50 percent, but in addition there are likely to be more and more non-aboriginal people living on those lands. We’re very clear that these people, even with a nation-based model of self-government, should be given a right of representation, of influence, if they are going to be taxed and subjected to the laws on these territories.”

  6. See articles 20-23 of chapter 11 of the Nisga’a Treaty.

Summary of principles

Principle 1
Aboriginal authority to impose property taxes on non-band/First Nations leaseholders under the Indian Act raises civil liberties concerns. The use of such authority is an example of a First Nation acting as a government authority, rather than as simply a party in private contract. Aboriginal taxation authority is part of a greater trend to provide First Nations with greater autonomy culminating in self-government treaties.

Principle 2
People who live in aboriginal jurisdictions, but are not band members, have no right to membership in the aboriginal political community.

Principle 3
Residents of aboriginal jurisdictions have a right to participate in decision-making regarding matters that directly affect them.

Principle 4
Canadian citizens who are not members of an Indian band have a right to participate in government decision-making that affects them in aboriginal jurisdictions because they retain some significant degree, though it may be necessarily attenuated in aboriginal jurisdictions, of their sovereign status throughout Canada. The right of citizens to participate meaningfully in decision-making is a fundamental characteristic of Canada’s democracy.

Principle 5
To balance the competing principles of aboriginal self-government and non-aboriginal residents’ right to participate in decision-making, when the non-Native population is close to, equals or outnumbers the aboriginal population in an aboriginal jurisdiction, then procedures must be weighted to respect aboriginal self-determination.

Principle 6
Non-aboriginal residents’ participation may reflect the process of decision-making used by the aboriginal community. For example, if an aboriginal community uses a consensus-based decision-making process, then non-aboriginal residents might sit at the table and participate as equals in the deliberations. If the aboriginal community uses democratic institutions like voting or appointing representatives, non-aboriginal residents might participate in the same way as First Nations people. A purely advisory body for non-aboriginal residents will only be “meaningful” if the residents agree to forego other types of participation.