December 1, 2016

Background
On November 30, 2016, the Fort William First Nation (FWFN) chief and council approved two Band Council Resolutions (BCRs) pertaining to the 1987 FWFN band membership code. This briefing note explains the implications of these two BCRs, and contextualizes them within the history of the 1987 band membership code.

Context: The Indian Act, 1985
In 1985, the Indian Act was amended in such a way that allowed Indian bands to control their own membership lists. Section 10(1) of the Act provides that a band may control its membership list by meeting three criteria: 1. it writes its own membership code; 2. it gives appropriate notice to the Minister of Indian and Northern Affairs Canada that the band wishes to assume control over its membership (this includes sending the code to the Minister for review); and, 3. a majority of the electors of the band consent to the band taking control of its membership list. According to section 10(8) of the Act, once approved by the Minister, the membership code submitted becomes the law governing band membership decisions “from the day on which notice is given to the Minister.”

The 1987 FWFN Band Membership Code
Fort William First Nation took advantage of section 10 of the Indian Act. It developed its own membership code in consultation with the community, leadership, and a lawyer. On June 24, 1987, the majority of the electors approved the membership code. It was then sent to the Minister of Indian Affairs in July 1988. Finally, on June 26, 1990, after some correspondence between Fort William and the federal government, the Minister of Indian Affairs, Mr. Tom Siddon, gave notice to Fort William that “pursuant to subsection 10(7) of the Indian Act … the Fort William Band has control of its membership effective June 26, 1987.” With that, the 1987 band membership code became law, and has remained the law governing FWFN band membership since.

The November 30, 2016 BCR’s
As listed in the November 30, 2016 FWFN chief and council meeting agenda, the following two BCR’s were discussed and approved by council:

1. BCR16-76 – Ratification of 1987 Membership Code
2. BCR16-77 – Development of Membership Committee and Membership Court

1. BCR16-76 – Ratification of 1987 Membership Code
The name of this BCR is misleading. It does not “ratify” the 1987 band membership code. As noted above, the code became law through Ministerial approval in 1990. Rather, BCR16-76 merely acknowledges that the 1987 membership code is the law governing deletions and additions to the FWFN membership list. This BCR rights an historical wrong: as Ken Ogimaa, FWFN Chief Executive Office, put it during the meeting, Fort William First Nation has been failing those who rightfully belong by not using the 1987 membership code. This BCR also provides protection for the band in the event that it is taken to court over its membership decisions; as Mr. Ogimaa suggested during the meeting, Fort William could be found to be breaking the law if it was found to be not using its own membership code. There is legal precedent for such a scenario. After discussion, the FWFN chief and council voted unanimously to approve BCR16-76 during the November 30^th meeting.

2. BCR16-77 – Development of Membership Committee and Membership Court
This BCR implements two components of the 1987 FWFN membership code. The 1987 code requires that 1. a membership committee be established, and, 2. a membership court be appointed by chief and council. The membership committee makes the majority of decisions regarding band membership. The membership court, on the other hand, is an appeal mechanism; it allows individuals denied membership by the membership committee an avenue to have their denial overturned. Importantly, according to the 1987 membership code, the FWFN chief and council does not decide who is a member of the band. The only roles allotted to chief and council in regard to deciding membership are to: a) establish a membership committee, b) appoint individuals to the membership court, and c) approve out-adoption of children adopted by another Indian band (more information is available here). After discussion, the FWFN chief and council voted unanimously to approve BCR16-77 during the November 30^th meeting.

What does it all Mean?
First and foremost, the approvals of BCR16-76 and BCR16-77 re-centre Fort William’s band membership practices on the 1987 membership code. The following list highlights important aspects of how this affects membership decisions at FWFN:

1. Indian status is not a prerequisite to become a member of the band. Non-status band members have certain rights under section 4.1 of the Indian Act (for example: they may vote in band elections, and may receive land claims money).
2. A child is a member of the band if one or both of her parents are members of the band. However, a child must apply for probationary membership in the band if she has “one parent who is a member of the Band, and that parent also has only one parent who is a member of the Band.” The probationary period is 5 years.
3. A person who is not a member of the band, but marries a member of the band, can apply for probationary membership (5 year waiting period). Marriages can take place according to “provincial law” or “Indian custom.”
4. A person who transfers from another band does not automatically become a member of Fort William. Rather, they must apply to be a probationary member of the band. (5 year waiting period)
5. Adoption is a basis for automatic membership in the band: “A child who is adopted by a member or members of the Band shall, as of the date of the adoption, become a member of the band.” No probationary period required.

Note: Becoming a member of the Fort William Indian band does not entitle one to Indian status under the Indian Act.

Next Steps
As was made apparent in the November 30^th chief and council meeting, next steps now include establishing the membership committee and appointing individuals to the membership court. Certain sections of the 1987 membership code may also need to be changed (e.g. one section bars anyone with communicable disease from applying for probationary membership). I would suggest that most of this revision work has already been completed; see the draft Fort William First Nation Citizenship Code, 2015, which was developed by the FWFN Governance Committee through community consultation over 2014 and 2015.

Difficult Questions
While the passage of BCR16-76 and BCR16-77 are important steps for Fort William First Nation, several questions remain. As one FWFN councillor asked during the November 30^th chief and council meeting, what about those individuals whose names have been added to the band membership list since 1987 in ways other than by using the membership code? Are they members of the band?

Furthermore, if the band has not been following its own membership code for an indeterminate amount of time, it can be assumed the membership list includes some names of people whom are not members of the band (in cases where they were made members outside of the membership code), and potentially excludes names of people whom otherwise might have been members of the band under the 1987 membership code (e.g. those who rightfully belong but are not status Indians). This is a troubling scenario. A band’s elector’s list is based on its membership list. If paragraphs 103 and 104 of the federal court case Cameron v Canada 2012 have any bearing at Fort William, the band might need to revise its membership list in accordance with its 1987 membership code before any future voting can happen. How does this affect the spring 2017 chief and council election? How does it affect the impending Grand Trunk Pacific Railway Specific Claim Settlement ratification vote scheduled for early 2017?

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