Anishinabek Nation Governance Agreement @ FWFN? A review

By now, most people will know that Fort William is heading into a vote on whether to ratify the proposed Anishinabek Nation Governance Agreement (the Agreement or ANGA). I have been asked by a community elder to review the Agreement and to provide my thoughts. Others, including members of chief and council, have also noted that the community wants to know more about the potential long term effects. On that note, I’ve reviewed the ANGA for how it might affect FWFN specifically, and I share my thoughts here in the spirit of community discussion. If you’re interested in more general critiques of the ANGA, see Hayden King’s piece or this one by Brock Pitawanakwat.

Before moving forward, though, here is a copy of what I believe to be the most recent version of the ANGA. Throughout my review below, I make reference to specific articles of the Agreement, using brackets to do so (such as: 15.5, 15.6, etc.). I’ll start by giving some context, and then I’ll address my concerns. I conclude by offering some general reflections on “self-government” that our community should be aware of.

CONTEXT

The Union of Ontario Indians (UOI) has been working on this Agreement since 1995. It has been negotiated under Canada’s self-government legislation, which recognizes First Nations as having an inherent right to “self-government” in accordance with section 35 of the Constitution Act, 1982.

The Agreement itself provides for self-government at the First Nation level in four areas: 1. Leadership Selection (5.10-5.11), 2. E’Dbendaagzijig Law (citizenship) (5.12-5.23), 3. Culture and Language (5.21-5.23), and 4. Management and Operations of government (5.24-5.27). Importantly, “self-governance” is different than “self-determination,” but I’ll explain that later. The Agreement will turn the Anishinabek Nation/UOI into a central government (i.e. the Anishinabek Nation Government), but each member First Nation will have its own sphere of authority over the four areas noted above.

The ratification vote will take place February 1-29, 2020. Members of UOI First Nations who are over the age of 18 are eligible to vote, and voting can be done in one of three ways: in person, through mail-in ballot, or through an online vote.

TWO GOOD THINGS

While I have a number of concerns about the Agreement (highlighted below), there are at least two good things about it.

First, I like that it uses a confederacy model of governance. While the Agreement will establish the central Anishinabek Nation Government, I like that each member First Nation will retain the ability to make laws and govern itself (subject to certain limitations). To be clear, the Agreement sets up two levels of government: the Anishinabek Nation Government (Chapter 4), and then the First Nation Governments (Chapter 5). This means that Fort William would be able to continue to control its own membership and its leadership selection process through any future laws developed under the ANGA. Of course, Fort William already controls its membership and leadership selection under section 10 of the Indian Act and the First Nations Elections Act respectively, so I don’t see much of a gain here for us in practice. But the confederacy model is nonetheless a good thing to the extent that it distributes political power across all member First Nations.

Second, though not stated in the ANGA, there is money attached to the implementation plan. UOI documents show that each member First Nation will receive a one-time implementation fund of $548,000. This needs to last for at least ten years of implementation work, and possibly longer (16.4). While I haven’t seen any direction on how this money is to be spent, that works out to $54,800/year at best, which is just barely enough to hire one person to assist with this work over the ten year term.

MY CONCERNS

Aside from the two good points noted above, I have at least six serious concerns with the ANGA as currently written. Others may arise over time, and some of my concerns may be resolved through further conversations. But for the time being, here they are:

1. Reinforcing the Chief and Council system

Articles 5.2 and 5.3 require each First Nation to maintain a written constitution before it ratifies the ANGA. To date, I have not been provided a copy of Fort William’s official constitution, even though UOI claims that we have one in place (see this map). I have asked band personnel for a copy of our official constitution, and I have also asked the UOI for a copy. No one has provided one to me yet.

However, I was able to find two incomplete versions of a FWFN constitution on the internet (one in the October 31-November 6, 2016 newsletter, and the other on the FWFN website). Based on what I’ve seen, the FWFN Chief and Council will remain in place if the ANGA is ratified. The draft FWFN constitutions that I have seen say nothing about moving towards a decolonized form of government. For example, rather than instituting a dodem-based system, the FWFN constitution merely reproduces the status quo.

That said, the ANGA enables Fort William to enact new leadership selection laws of any form (5.10). This means that instituting a decolonized form of governance is possible. For now, though, we would stay under the centralized Chief and Council system until such time as we create a new leadership law under the ANGA (10.14). In other words, the only thing that will change in the foreseeable future in terms of leadership is that Chief and Council will have more money at its disposal, and more control over government operations. Given that the Chief and Council system was created to assimilate Indigenous peoples, keeping it around isn’t necessarily a good thing to the extent that it precludes us from rebuilding inherent Anishinaabe governance systems.

2. The ANGA Takes us Further from the Robinson Treaty

Those championing the Agreement have been careful to point out that the ANGA does not undermine the treaties. And in a way, they are right: the ANGA does not abrogate or derogate treaty rights (3.3(a) and 8.7). However, I would argue that it works to mute the Robinson-Superior Treaty in at least two ways: First, it encourages all future self-government agreements to be negotiated through the ANGA itself (13.5 and 15.19). That means that if FWFN ever wants to take control over things like marriage, divorce, taxation, etc. (see 13.1), the stage is set for us to do so through the ANGA instead of the Robinson-Superior Treaty.

Second, the ANGA “domesticates” Anishinaabe sovereignty. Again, while it does not directly undermine the Robinson-Superior Treaty, it constructs our relationship with Canada as one of “government-to-government” rather than one of “nation-to-nation” (2.1(b), 7.1, and Schedule B). In other words, our treaty will continue to exist, but the ANGA channels FWFN’s relationship with the Crown as if we are simply another group of Canadians (like “Ontarians”) rather than a peoples who have an international relationship with the British sovereign. It is this relationship that sets First Nations apart from all other Canadians.

We can see this domestication at work in specific articles of the Agreement, especially those that bring Anishinaabe juridical authority under federal and provincial law. For example:

  • The Agreement is to be interpreted by the laws of Ontario rather than by the laws of Anishinaabeg (1.2);
  • Prosecution of offences will take place under Ontario’s Provincial Offences Act or under Canada’s Criminal Code (6.9); and,
  • Federal and provincial courts have jurisdiction to adjudicate a variety of matters under the Agreement (6.12 – 6.15).

Anishinaabe law continues to exist at Fort William (see this example), and should be given priority in our governance documents, whether the ANGA or otherwise. Articles 6.1 – 6.6 provide space for member First Nations and the Anishinabek Nation to use Anishinaabe law in restorative justice and mediation initiatives, as well as for imposing “Anishinaabe sanctions” (6.2) as an alternative to fines, penalties, or imprisonment (6.4). While these are steps forward, the fact that federal and provincial courts have jurisdiction is problematic to the extent that they reassert Canadian dominance over Anishinaabe lifeways.

In other words, the ANGA does not explicitly kill the treaty, but it sets the stage for it to whither away and die on its own.

3. The ANGA Contradicts itself

The Agreement runs counter to aspects of its preamble, specifically with regard to where governing authority comes from. The preamble states in part: “Debenjiged kiimiingona dedbinwe wi naagdowendiwin. Creator gave us sovereignty to govern ourselves.” I fully agree with this statement. Yet, if the Agreement is based on sovereignty provided by Creation, why then does the UOI feel the need to ask Canada for permission to be self-governing? Those who self-determine their lives do not have to ask for permission to do so. I have more to say on this below.

4. The ANGA is mostly redundant for Fort William

As alluded to above, the ANGA doesn’t actually provide much change for Fort William, at least not in the foreseeable future from what I’ve seen in the draft FWFN constitutions. It does provide more funding, and it does provide more autonomy over everyday management of governance operations (including financial administration, conduct of meetings, establishing “Anishinaabe Institutions”) (5.24).

That said, Fort William already has effective control over three major ANGA self-government areas, namely, leadership selection (5.10-5.11), citizenship (5.12-5.20), and culture and language (5.21-5.23). Note the following:

  • Fort William First Nation already has control over how leadership is selected. Chief and Council opted into the First Nations Election Act in 2019 through a BCR;
  • Fort William First Nation already controls its band membership. We took control of it in 1985 by writing our membership code in accordance with section 10 of the Indian Act;
  • Fort William First Nation already has control over its culture and language. The Indian Act made aspects of Indigenous cultural expression illegal, but the Act was changed in 1951 to no longer do this. In this sense, Fort William has been free to assert its culture and language for the past 70 years. Regardless of Canadian law, we have had this power since time immemorial, as can be seen in the fact that we have held annual pow wows on the mountain for generations.

Thus, if we already have control over much of what the ANGA stands to offer, I’m not sure it is worth marginalizing our treaty, or exchanging much of our self-determination for narrowly defined aspects of “self-government” (more on this below). I’d much rather see our leadership press Canada to relate with us on a nation-to-nation basis that foregrounds the treaty relationship.

5. Transparency

As noted above, I have not been able to review a copy of FWFN’s official constitution, despite asking the band for one, and despite raising this issue with the UOI. This is concerning not only for the obvious reason that the UOI has included FWFN in its list of bands with constitutions, but also because the ANGA ratification process itself rests in part on the principle of “openness and transparency” (15.2(a)). If this is the case, why has it been so difficult to find a copy of our official constitution?

6. No option for Citizen intervention at “Intergovernmental Forum”

Schedule B of the ANGA provides terms of reference for the “government-to-government” forum between the Anishinabek Nation and Canada. This forum is a platform for the parties to promote cooperation on “issues of mutual interest or concern.” I would assume that there is a process that citizens can use to ensure their needs are addressed in the forum by Anishinabek Nation Government representatives. However, there is no platform within the forum for citizens to intervene on their own behalf. This is problematic. Citizens should be given a way to make sure any lived issues/concerns arising from the ANGA can be aired at this level directly and without having to go though community leaders. Doing so would strengthen accountability.

PROBLEMS WITH “SELF-GOVERNMENT”

The critical point to understand when reading self-governance agreements such as the ANGA is that they are instruments that domesticate Indigenous political and legal orders, bringing them further and further into the confines of Canadian sovereignty. This manifests in different ways. For example, it might show up in the form of saying Ontario courts have jurisdiction over matters arising from the Agreement, or it might show up in clauses that bar Anishinaabeg from inviting non-Canadians to live with them in their lands (4.17, 5.18). This is a death by a thousand cuts. The goal is to slowly but surely whittle away Anishinaabe political authority and jurisdiction as its own thing, and bring Anishinaabeg political life under the umbrella of Canada’s presumed authority over Indigenous peoples. Canada is not interested in deferring to inherent Indigenous political authority, and so it reconciles Anishinaabeg governance under its constitution, for example, as an “inherent right.” The language sounds great, but in fact it’s a magic trick. 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” (ANGA Preamble, para. 9). This promotes the idea that “authentic” Anishinaabe law and governance are frozen in the past, which simply is not true.

In other words, it is critical to stay vigilant and alert to the fact that “self-governance” is different than “self-determination.” Those who self-determine their lives do not have to ask for permission to do so. The Anishinabek Nation Governance Agreement is a self-governance agreement that, in my opinion, exchanges expansive Anishinaabeg self-determination for a more limited form of governance over four areas of life (leadership, citizenship, culture and language, and governance operations).

Finally, it’s important to note that UOI has also produced an “Anishinabek Nation Fiscal Agreement” which supports the ANGA (see Chapter 8 of ANGA). I did not reference this document in my review above, but I link it here for your consideration.

3 thoughts on “Anishinabek Nation Governance Agreement @ FWFN? A review

  1. Pingback: Opinion: Response to Hayden King’s article on the Anishinabek Nation Governance Agreement vote

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