“It’s always about this discrimination and sorry to say, for me it’s racism …. It’s discriminatory legislation because no other race is subject to this legislation in Canada except Indian people.”
— Onion Lake Okinaw (Chief) Wallace Fox
Controversy has again erupted over the former federal government’s First Nations Financial Transparency Act.
At the end of December, Carolyn Bennett, the federal indigenous and northern affairs minister announced the new government was restoring non-essential funding and ceasing court actions against bands that have not complied with the Act.
Currently, Canada’s 581 bands are required under federal statute to publish their annual financial statements and disclose the salaries and expenses of their chiefs and council members on their websites. The ministry is also required to republish these records on the Government of Canada site.
The Act remains in effect. What the government has suspended is the “discretionary compliance measures” that allowed the minister to “(b) withhold moneys payable as a grant or contribution to the First Nation under an agreement that is in force on the day on which the breach occurs and that is entered into by the First Nation and Her Majesty in right of Canada as represented by the Minister, solely or in combination with other ministers of the Crown, until the First Nation has complied with its duty; or (c) terminate any agreement referred to in paragraph (b).
Critics say this makes the law toothless.
The Act was extremely controversial at the times it was introduced and passed as at least some First Nations feared it would be used to reduce their federal funding based on band revenues and erode Treaty and Charter rights.
Onion Lake Cree Nation, one of the country’s wealthier bands—which owns the Castle Building Centre in Yorkton—refused to comply and took the federal government to court along with four other Saskatchewan and Alberta bands.
They argued that the bands’ monies are not Canadian taxpayers’ monies and should not be subject to public disclosure citing the Privacy Act.
“It’s always about this discrimination and sorry to say, for me it’s racism,” said Onion Lake Okinaw (Chief) Wallace Fox. “It’s a Constitutional right under Canadian law that under the Privacy Act everyone is protected in the Charter—except for Indian people. It’s discriminatory legislation because no other race is subject to this legislation in Canada except Indian people.”
Saskatoon Federal Court of Canada Justice Robert Barnes agreed and, in a 24-page ruling issued October 26, 2015, ordered the federal government to cease legal efforts to force disclosure of detailed band finances.
That ruling and Bennett’s December announcement has no immediate impact on local bands, all of which have complied with the Act. In fact, only 32 of the 581 bands have not complied for the 2014-15 fiscal year.
Critics of the court and government, however, argue disclosure is essential as are penalties for non-compliance.
“This government was elected on a promise to improve transparency and accountability, and this decision does exactly the opposite,” said Aaron Wudrick, federal director of the Canadian Taxpayers Federation (CTF). “A law without consequence for non-compliance is a toothless law. As such, soon many First Nations people across the country will again be in the dark as to how their elected leaders spend public dollars.”
Bennett said the Canadian government is committed to transparency, but must work with first nations to achieve it not impose it from above.
“Transparency and accountability are paramount to any government, whether it is municipal, provincial, federal or First Nation,” she said in her statement. “We will work in full partnership with First Nations leadership and organizations on the way forward to improve accountability and transparency. This cannot be achieved without the engagement of First Nations and its members.”
Barnes agreed with that assessment chastising the former government in his ruling for unilaterally imposing the Transparency Act and a “failure to consult” with First Nations.
“The Crown has an ongoing legal obligation to consult and the minister is required to consider the prejudicial effects of further administrative action on the members of these Band,” he wrote. “Those most affected are the members of the Bands and their interests are worthy of careful consideration.”
Wallace claims Onion Lake is already accountable to its band members. Following the Court’s decision, he explained to APTN that they hold an annual meeting during which all the band’s programs are outlined along with all sources of federal funding and band source revenues.
Bennett plans to move forward with consultations.
“I have been asked to undertake, along with my colleague the Minister of Justice and Attorney General of Canada, and in full partnership and consultation with First Nations, Inuit, and the Métis Nation, a review of the laws to ensure that the Crown is fully executing its obligations in accordance with its constitutional and international obligations,” she said.
“These initial steps will enable us to engage in discussions on transparency and accountability that are based on recognition of rights, respect, co-operation, and partnership and that build towards a renewed, nation-to-nation relationship with Indigenous Peoples.”
Currently, there are six bands in Saskatchewan that have not complied with the Act including Onion Lake.
