‘These are stepping stones for us’: Understanding the Anishinabek Nation Governance Agreement

This month, several Anishinabek nations are voting on what could be one of the largest self-governance agreements in Canada. So what does that mean?
By Nick Dunne - Published on Feb 10, 2020
Grand Chief Glen Hare of the Anishinabek Nation, a political organization that advocates on behalf of 40 First Nations across Ontario. (Laura Barrios)

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In February, more than a dozen First Nations in Ontario will vote to ratify what could be the largest self-governance agreement in Canada to date. Under it, Ottawa would hand jurisdiction of four areas of governance — election laws, citizenship laws, language and cultural practices, and some areas of financial management — to the Anishinabek Nation, a political organization that advocates on behalf of 40 First Nations across the province but would become a regional government.

“These are stepping stones for us,” says Grand Chief Glen Hare. “I’m proud to be with everyone at the table here, my fellow leadership, to be able to finish what the leaders of the day envisioned.”

This first round of ratification votes, which involves 15 of the Anishinabek Nation’s 40 First Nations, is part of a process that began in 1995; a second round, with eight nations, will take place in May, and more will follow, if necessary. There is no threshold for ratification: the Anishinabek Nation Governance Agreement will come into effect after all rounds are complete even if a majority of member nations opt to abstain or vote against it. And not everyone supports it: while proponents are hailing it as an important step toward self-governance, others say it doesn’t go far enough.

Proponents say that the agreement would give the Anishinabek Nation increased power to respond directly to its communities. For example, communities that ratify ANGA will be able design their elections and citizenship laws without federal oversight. According to Nipissing First Nation chief Scott McLeod, the fact that the current standard election cycle of a band council (the government unit for those subject to the Indian Act) is only two years makes it difficult to form stable governments that can implement long-term planning. “The first year after election, you’re with a new council, you’re learning the ropes, you’re getting used to the roles, you’re assigning portfolios, and then, all of a sudden, the second year, you’re in an election year, which changes the dynamics of things,” he says, adding that the two-year cycle “doesn’t allow for proper planning, and it doesn’t allow for getting major projects off the ground. It doesn’t allow for adequate time for public consultation to bring them along.”

Hayden King, executive director of the Yellowhead Institute at Ryerson University, points out that nations can already alter election and citizenship laws, as Nipissing did: “Two of the four things that the Anishinabek Nation are saying are these wonderful areas that we can take over jurisdiction, well, they’ve existed in federal policy for a really long time already.”

But Martin Bayer, chief negotiator of ANGA, says the difference is that, under the agreement, First Nations will now be able to modify such laws without federal approval — and that could benefit smaller communities that may not have the capacity to work with Ottawa. “When it comes to going from electing leadership under the Indian Act to a custom election code, that still has to go to Ottawa for approval after,” says Bayer of the current system.

Bayer also emphasizes that taking control of citizenship laws would allow individual First Nations and the Anishinabek Nation to lobby for funding based on their own citizenship lists, instead of on the federal status Indian list, which is more restrictive.  “And so what we want to do,” Bayer says, “is use the power that’s recognizing the agreement to come up with our own citizenship law and then develop our own citizenship lists and then advocate to the government to fund the programs and services that it delivers in our communities according to our citizens.” The agreement will also, Bayer says, affirm the nation’s ability to incorporate cultural elements into official government duties — for example, smudging in council meetings.

Each community that signs on will receive $548,000 from the federal government to help implement the ANGA, and additional operational funding. “The average [band-support funding] is about $200,000 to $250,000. So not a lot at all, even for small communities, if you consider their needs,” says Jidé Afolabi, fiscal-relations support adviser for the Anishinabek Nation. Afolabi says that, under the agreement, average funding would increase to around $1.7 million per community.

Fundamentally, Bayer says, ANGA represents a first step away from the Indian Act. Originally implemented in 1876 to assimilate Indigenous peoples, the act has been heavily criticized for its role in enabling the residential-school system and other discriminatory policies — but, in amended form, it continues to determine most aspects of the funding and operations of First Nations. “The bottom line is [the current iteration of the Indian Act] still starts from that, which is really designed to ensure that, over time, we will disappear as far as the government is concerned,” he says.

A spokesperson for Crown-Indigenous Relations and Northern Affairs Canada told TVO.org via email that the government is “working closely with the Anishinabek Nation to lay the foundation for Anishinabek First Nations to move beyond the Indian Act, toward self-government,” adding that “self-government agreements are an opportunity to restore First Nation control over governance and implement their vision of greater self-determination and a better future for their communities.”

But not all 40 member First Nations are expected to vote in favour of ANGA — and some won’t be voting at all: on January 21, the Chippewas of the Thames First Nation announced they’d be abstaining. “One concern we heard several times was the short time frame for educating citizens and holding discussions before the February vote,” Chief Jaqueline French told TVO.org via email. “Another major concern that was brought up in a legal opinion commissioned for Council was how the ANGA would put some limitations and parameters on our law-making, which conflicts with language in our Chi-Inaakonigewin, the supreme law of COTTFN (constitution-type document).”

In that legal opinion, First Peoples Law says that the agreement “negatively affects COTTFN by confirming that certain federal and provincial laws will prevail over COTTFN laws, potentially limiting COTTFN’s ability to advance the position that it holds Aboriginal title to its reserve, and increasing the likelihood that Anishinaabe laws will interpreted by Canadian courts.” (Section 11.4 of the agreement, it notes, indicates that criminal law and criminal procedure, labour relations, and working conditions, among others areas, would be exclusively subject to federal laws that would trump a First Nation’s laws.)

Others critique the agreement on the basis that it necessarily leaves fundamental unanswered questions about self-governance. Though Section 35 of the Constitution guarantees self-governance as an Aboriginal right, it has yet to be legally defined, according to Russ Diabo, a Mohawk policy analyst.

“The political effect [of ANGA] will be to convert these bands into a kind of ethnic Indigenous municipality rather than self-determining nations,” writes Diabo, who studies the federal implementation of governance agreements. “Outlining a contingent set of rights through these agreements, rather than acknowledging the inherent right to self-determination, will in effect empty section 35 of any real political or economic meaning.”

Ryerson professor and Yellowhead fellow Damien Lee, whose community of Fort William First Nation is participating in the vote, also has concerns about the agreement: “The language sounds great, but in fact it’s a magic trick,” he writes. “Lost in the transaction is the fact that Anishinaabeg already have self-determination outside of and before Canadian sovereignty, but such self-determination is exchanged for the more limited (and limiting) status of being self-governing — where Canada ‘allows’ Indigenous folks a measure of control over some aspects of their lives, but only in relation to ‘matters that are integral to their unique cultures, identities, traditions, languages and institutions.’”

Anishinabek Nation grand chief Glen Hare emphasizes that ANGA is not a complete answer and that more — questions around housing policy, for example — can be negotiated down the line. “Even this governance agreement, this is a big step,” he says. “But we’ve still got a lot of work to do.”

This is one in a series of stories about issues affecting northeastern Ontario. It's brought to you with the assistance of Laurentian University.

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