Dan WallaceDemand a vote with the AFN Brenda Sayers shared her status update. 19 hrs I thought Dan Wallace and others would be interested in the function of the AFN Confederacy of Nations. There is a resolution to dissolve it at the AFN AGM this week. It is better to have full understanding of its function. Brenda Sayers SUMMARY ANSWERS TO LIST OF QUESTIONS ON THE ASSEMBLY OF FIRST NATIONS (AFN) CONFEDERACY OF NATIONS 1 Can the Confederacy of Nations be “abolished” or done away by a motion, resolution, or decision of any persons or bodies, internal to the AFN or external, without an amendment to the Charter? • No. The Confederacy is one of the central organs of the AFN, as set out in several provisions of the Charter (eg. articles 11, 12, 13, 14, 15, and 16). It is second in political authority only to the Assembly. Article 27 of the Charter provides that the only way to amend the Charter it is pursuant to a decision (by resolution or motion) at a Chiefs Assembly, provided that all First Nations have been provided with at least 60 days advance notice of the proposed amendment. Several amendments to the Charter have been passed in this way – they are listed at the end of the current version of the Charter on the AFN web site. The key provisions dealing with the Confederacy have not been so amended. • It is only the Assembly that has the power to abolish or amend the Confederacy. The other organs of the AFN (eg. the National Chief and the Executive Committee) do not have any such power. The other organs of the AFN are required to cooperate with the Confederacy. The Assembly must follow the special procedure set out in article 28 to amend the Charter. • There has been some criticism of the Confederacy over the years, but the same could be said about most, if not all, components of the AFN. The political and other motivations behind such critiques have faded with the passage of time. They are of no legal significance in terms of the standing of the Confederacy in the present day version of the Charter. • There have been several moves to re-organize the AFN over the years, some of which have featured the Confederacy, and some of which have not. For example, there have been recommendations to enhance the stature and role of the Confederacy by basing its constituency on traditional Indigenous Nations, as opposed to provinces and regions. Perhaps the most notable and formal effort to re-organize was the report of the AFN Renewal Commission in 2005. In the context of numerous intertwined recommendations, the Commission recommended the abolition of the Confederacy. In 2007 the Chiefs in Assembly endorsed the recommendations of the Renewal Commission in a general way and instructed a task force to move forward. However, the effort died on the vine, because of other pressing political priorities. In spite of a recommendation to hold a Special Assembly to amend the Charter to institute the fundamental changes recommended by the Commission, no such Assembly was ever called. The Charter was never amended to delete the parts dealing with the Confederacy. There is no reasonable basis to suggest that the Confederacy recommendations of the Renewal Commission, and only those recommendations, have somehow become adopted by osmosis or metaphysics. What about the recommendation about a universal vote for the National Chief? • By not amending the Charter pursuant to the simple procedure set out in article 27, the Chiefs have decided to keep the Confederacy in place. That is reflected in the current version of the Charter included in the official AFN web site. • Note that the Charter is not corporate in nature. It reflects the will of the sovereign First Nations of Canada, and is based on First Nation law, as much as Canadian law. The Charter reflects solemn commitments made by First Nations in the early 1980’s, and its letter and spirit command respect. 2 What would be required to abolish the Confederacy of Nations? What other changes would be required to the Charter? • With the exception of a final and binding court order, the only way to abolish the Confederacy would be to amend the Charter accordingly, using the procedure laid out in article 27 of the Charter (60 days advance written notice before a Chiefs Assembly). • Assuming an amendment package to the Charter, the simplest way to abolish the Confederacy would be to delete the key Confederacy articles: 11, 12, 13, 14, 15, and 16. Some related provisions would also have to be amended; for example, article 18(10) provides that Executive members may participate in the Confederacy with voting privileges, article 20(6) provides that the National Chief presides over the Confederacy, article 26 links the Confederacy to the NIB/Secretariat, and section A.1 of Appendix “A” to the Charter provides for an important role for the Confederacy in the procedure leading up to the election of the National Chief. Consequential amendments to these and other provisions would be required if the Confederacy organ is deleted from the Charter. • A simple deletion of the Confederacy would probably “work” from a business point of view. For various reasons, the Confederacy was not active for about a decade before May of 2014. The AFN was able to function with the other organs set out in the Charter (the Assembly, the National Chief, etc.). • An alternative and more complex approach would be to not simply delete the Confederacy, but to simultaneously replace it in the Charter with other organs and processes that would perform the important functions of the Confederacy in a different way. This would be along the lines of the philosophy of the Renewal Commission – not simple radical deletion of the Confederacy, but deletion in the context of other fundamental organizational changes. This more contextual approach would require considerable staff and political work to get ready for an amending Chiefs Assembly. 3 Without an amendment to the Charter to abolish the Confederacy of Nations, can the Assembly operate pursuant to the Charter? • The principal powers and functions of the Confederacy are listed in article 12 of the Charter, including implementing Assembly resolutions, dealing with emergencies between Assemblies, and controlling the finances of the AFN. An additional function is for the Confederacy is to appoint a Chief Electoral Officer for the National Chief selection process: sec. A.1 of Appendix “A” of the Charter. Several of the provisions of the Charter dealing with the Confederacy are peremptory in nature; for example, article 14 provides that the Confederacy “shall” meet on a quarterly basis. • Since the Charter has not been amended to abolish or even revise the Confederacy, the Confederacy should have been in constant operation since the adoption of the Charter in 1985, performing its various important functions. However, as a matter of fact, the Confederacy has been dormant for the last decade, approximately one third of the life span of the AFN. Part of the reason may have been funding, as the Confederacy structure does require at least 4 large scale meetings per year, in addition to other functions and activities. • The dormancy of the Confederacy over the last ten years was unfortunate. The Charter was not followed in this important regard, and First Nations were not able to benefit from the potential contribution of the Confederacy. • The failure to abide by the Charter with regard to the Confederacy raises the uncomfortable question of whether the AFN was operating validly or legally during the dormancy period of about a decade. Are hundreds of resolutions and other actions taken during this period invalid or suspect. In my view, that would be a harsh and unlikely outcome. • The fact is that the AFN operated more or less successfully during the decade of Confederacy dormancy. The roles and functions of the Confederacy were taken up by other AFN organs, seemingly on an unconscious basis, or not taken up at all. • The failure to implement the Confederacy was done on a more or less consensual basis. The Assembly and the other AFN organs went about their business, and, to my knowledge, there was no formal sustained request to revive the Confederacy (until May of 2014). Since the lapse was consensual, my view is that AFN operations during the dormancy decade were and are valid. • The answer would be different if there was a formal and sustained request to activate the Confederacy during the relevant decade, and this request was thwarted by other organs of the AFN. In that instance, the validity of AFN actions in the subject period would be suspect, in my view. But that is not what happened. • This is all relevant to events today. Starting in May of 2014, there has been a formal sustained move to activate the Confederacy. In accordance with the Charter, the other organs of the AFN must cooperate. If they do not, there would be deliberate and non-consensual breach of the Charter, making all AFN decisions suspect, with negative legal and other consequences. 4 What would be the effect of not having a functional Confederacy of Nations upon the governance of the Assembly? • The Confederacy is mandated to perform several important functions for the greater benefit of the AFN and First Nations; these functions include dealing with emergencies between Assemblies, ensuring that the Executive Committee follows instructions from the Assembly, and managing AFN finances. In the absence of the Confederacy, these functions are not performed or only partially performed by other organs, to the detriment of the AFN and First Nations. There is real prejudice. • The AFN did function more or less effectively during the Confederacy dormancy period. It would have been materially better for all concerned to have had a functioning Confederacy, but the AFN did manage. • The dormancy period of about a decade occurred on a largely consensual basis. The Confederacy did not meet, for whatever reason, and there was no formal sustained request to activate the Confederacy. The dormancy was in breach of the Charter, but it occurred on a consensual basis. As a result, my view is that decisions taken by the Assembly and other organs during the dormancy period were and are valid. • If there had been a formal and sustained attempt to revive the Confederacy, and this was blocked by one or more parties, the validity of AFN decision making would have come into question. This basic equation is relevant today, when there is an ongoing official attempt to revive the Confederacy in accordance with the Charter. All organs of the AFN are required to act in good faith and make best efforts to implement the Confederacy. Otherwise, real questions of legitimacy for the AFN will arise. 5 What are the responsibilities of other organs of the AFN to ensure that the Assembly is governed pursuant to its Charter, and what are the responsibilities in the event the Assembly is not being governed pursuant to the Charter? • My view is that all the organs of the AFN have a collective and individual obligation to ensure that the AFN is governed according to the Charter. This obligation flows from the Charter and may also be fiduciary in nature. So, it is not just the Confederacy that should have been concerned that the Confederacy organ was allowed to fall by the wayside. The Assembly, the National Chief, the Executive Committee, and the advisory Councils (Elders, Women, and Youth) should have been concerned as well. In retrospect, all of these organs should have raised concerns about the Confederacy and tried to do something about it. There may have been some individual efforts, but, by and large, there was no sustained official effort to protect and implement the Confederacy. There was a collective lapse in duty and obligation. • The other organs under the Charter have their own unique responsibilities. It is not their sole function to ensure that the Confederacy is fully functional. In other words, they have their own work to do. However, on a collective basis, there was a failure to ensure that a key organ of the Charter remained in good working order. • It does not appear that there as an active agenda to suppress the Confederacy in the dormancy period. Any such agenda would have been a serious breach of the Charter and would have raised questions around the legitimacy of AFN decision making. Rather, it seems that the Confederacy was permitted to lapse on a consensual and almost unconscious basis. People found ways to make the AFN work without the Confederacy, and no one made it their business to speak up for the Confederacy, at least on a sustained and a formal basis. As the dormancy period was more or less consensual, my view is that there is no reasonable basis to question AFN decision making during this period. If the Confederacy had been deliberately suppressed, the outcome would be different. • In summary, all AFN organs are obliged to take steps to ensure that the Charter is followed, including the functioning of the Confederacy. It is a shared responsibility. Understanding this responsibility today is very important in the context of the effort since May of 2014 to revive the Confederacy. All AFN organs are required to assist with the effort to re-establish the Confederacy, subject to available resources and other priorities. There was a lapse by all concerned for about 10 years, but that does not absolve any AFN organ of the present-day responsibility to enforce all aspects of the Charter. 6 Unlike the First-Nations-in-Assembly which is composed of individual First Nations (as represented by their Chiefs), the Confederacy of Nations is composed of regions. If there were 50% or more of the regions set out in the Charter, having 50% or more of the delegates specified, how could they proceed to reactivate the Confederacy of Nations? • I think the procedure followed since May has been exemplary, in accordance with the letter and spirit of the Charter. Many First Nation leaders believed that the AFN was not following the instructions from the December 2013 Assembly with regard to the federal Education Bill. They also perceived that there was an emergency between Assemblies, since the Bill might be passed in Parliament before the Annual Chiefs Assembly of July 2014. Based on article 12 of the Charter, there was a classic and completely appropriate role for the Confederacy to play. • The Ontario Regional Chief and several First Nation leaders across the country intervened to re-activate the Confederacy in accordance with the Charter. • According to article 14 of the Charter, there are four ways to call a Confederacy meeting: a regular quarterly session, by the call of the National Chief, by the call of the Executive Committee, or by a quorum of Confederacy members. The meetings held starting in May were supported by a quorum of Confederacy members and, therefore, in my view, conformed with the Charter. • There was a good faith endeavour to follow all of the requirements of the Charter in terms of quorum and reporting to the Chiefs Assembly. • Given the fact that the Confederacy was more or less dormant for a decade, it is not surprising that its sudden revival a couple of months ago may have led to some short term organizational challenges. That is quite natural. Many of the AFN officials would not have had any familiarity with the running of the Confederacy process and organ; for example, AFN finance officials would have no familiarity with the Confederacy oversight role in article 12(g). This will be a learning process. • The re-activation process has been initiated, with the specific objective of dealing with the federal Education Bill. The Charter role of the Confederacy should be accepted at the Assembly in July 2014. The Confederacy can then continue on and deal with the full range of AFN issues, and not only education, in accordance with the Charter. 7 What would be the proper course of action for a person or First Nation to context the legitimacy of the Confederacy of Nations if it were to be reconstituted as set out in the previous question? • There would be two principal means - the political process under the Charter and litigation in the Canadian courts. The most likely and practical route would be the political one. • First Nation leaders opposed to the revival of the Confederacy could raise their concerns at the Executive Committee and the Assembly levels. They might argue that it is somehow illegitimate to revive the Confederacy after a decade of dormancy, even though the role of the Confederacy is guaranteed by the Charter. • The ultimate form of political relief for opponents would be to seek amendments to the Charter in order to abolish or curtail the Confederacy. In the meantime, they should not be able to de-activate the Confederacy as it is provided for in the Charter. The amendments cannot occur at the July 2014 Assembly as no 60 day notice of an amendment has been provided under article 27 of the Charter. The soonest this could happen would be the next Assembly of Chiefs, assuming the notice requirement is met. • Opponents of the Confederacy could push for a resolution at the July 2014 Assembly critical of the Confederacy. Such a resolution, if passed, would probably have the effect of undermining the effort to revive the Confederacy. However, only formal amendments to the Charter would have the actual effect of terminating the Confederacy. • Opponents of the Confederacy could also try to challenge it in the Canadian court system. Any such challenge would run into some obvious problems. First, in terms of substance, the fact is that the current version of the Charter clearly provides for the Confederacy. The position that the Confederacy provisions have become a dead letter because of a period of dormancy seems very weak. This is not a question of convention or practice being relied on to clear up an ambiguity in the Charter. There is no ambiguity – the Confederacy is a central organ of the AFN. Second, there would be a technical or procedural problem because the Charter is not a corporate document. It reflects a voluntary and political agreement by First Nations to come together on various issues of mutual interest. It is at best unclear if such a political agreement would be enforceable in Canadian courts. • The litigation route seems most unlikely. The most effective route for opponents would be political. For the next few months they could agitate against the Confederacy and attempt to hamstring its operations. Their next step would be to organize a Special Chiefs Assembly to consider Charter amendments abolishing the Confederacy. • Pulling back a little bit, it is important to recall that the current debate over the role of the Confederacy stemmed from a policy debate over the federal Education Bill. There is a risk that argument about the Confederacy may become a kind of proxy for debate over the Education Bill. There is the short term emergency over the Bill that has to be dealt with, and the Confederacy has an important role to play there, based on the Charter. The mid-term objective should be to re-establish a sustainable Confederacy that can deal with the full range of First Nation issues, not just education. It is important, I think, to debate the Bill on its own merits (or lack thereof). 8 Would the issue be justiciable in a Federal or Provincial Court of Canada, given the legal character of the Assembly of First Nations? • The party that chooses to take the Confederacy issue to the Canadian court system will face justiciability issues. These have to do with the legal status of the Charter as a whole, and the Confederacy in particular. Justiciability would be a preliminary technical hurdle to meet for the party taking the matter to court. • The Charter is not a corporate instrument or a business contract. It is a formal agreement by First Nations across Canada to unite and take collective action for political and other reasons. From a Canadian legal point of view, it is akin to a voluntary association. As a result, the various organs of the AFN (with the exception of the NIB) do not have clear cut status as separate legal entities. • If legal proceedings were launched, it would be necessary to name various individuals and entities, with the reasonable hope that the court would sanction proceedings against one or more. Obvious candidates would be as follows: the AFN as a whole, the National Chief, the Confederacy, the Executive Committee, and the NIB. Particular regional First Nation leaders could also be named if they have a played a central role in the Confederacy issue. These individuals/organs could be identified as the controlling mind of a real organization that has operated at the national level for at least 30 years, including participation in major national legal/political events, such as constitutional negotiations under the Constitution Act, 1982. • The NIB deserves special mention. It is a recognized legal entity, under the federal Corporations Act. The NIB was preserved from the period before the Charter in order to perform legal and administrative tasks (eg. funding contracts with Canadian government and the hiring of staff). The NIB is also known as the AFN Secretariat and is specifically referred to as an AFN organ in article 25 of the Charter. It is important that article 26 specifically connects the NIB and the Confederacy on two separate occasions. There is also a more subtle link with the NIB through the Confederacy’s control of AFN finances under article 12(g). • My understanding is that the continuation of the NIB was based in part on the objective of separating the high level political deliberations of the AFN from day-to-day corporate affairs and the jurisdiction of federal corporation legislation. This is a common and positive motivation for this kind of First Nation structure. • Given the corporate status of the NIB, its placement in the Charter, and the explicit link to the Confederacy, my view is that any legal proceeding would mention the NIB as a separate party. The NIB connection may be a base to keep some of the issues in court, even if it is found that much of the AFN structure is non-justiciable. • It is not possible to predict the precise litigation outcome on the justiciability issue. However, it is safe to say that the issue is substantial and is likely to slow down any litigation, even if it is not thrown out altogether. Even in the instance where much of the AFN Charter structure issue is found to be non-justiciable, the NIB corporate connection should be sufficient to keep something going in court. 9 What would be the proper course of action for officials of the Confederacy of Nations to take if the Secretariat or the National Chief or the Executive Committee refused to acknowledge the legitimacy of the Confederacy of Nations? • In my view, it would be illegitimate for any other organ of the AFN to block the Confederacy. The Confederacy is a recognized central organ in the Charter, second only to the Assembly, and it would be a fundamental breach of the Charter for any other organ to impede the work of the Confederacy. The decade long dormancy of the Confederacy can explain some short term growing pains, but not the outright blockage of the Confederacy. The Confederacy is fully recognized in the current version of the Charter. • There are two principal courses of action in the event that the Confederacy is blocked by one or more of the other organs of the AFN. The preferred route is political under the Charter, a process controlled by First Nations. The fall-back is litigation in the Canadian courts. • Under article 12(d) of the Charter, the Confederacy has the power to take remedial and corrective measures against the Secretariat and/or the Executive Committee (including the National Chief) where there has been a “willful breach of a national mandate”. In my view, this trigger wording would also cover a fundamental breach of the Charter. • So, if the Confederacy believes that it is being improperly blocked by any one or of the other AFN organs (apart from the Assembly), it has a broad discretion to impose corrective measures. Depending on the circumstances, such measures might include mandate limitations, funding restrictions, and suspensions. • In a troubled context, such measures under article 12(d) might be ignored or avoided by one or more of the other organs. This might even be expected when the backdrop is that the legitimacy of the Confederacy is being questioned. Then, the ultimate political power of the Confederacy is to report to the next Assembly. The Assembly can then decide whether to approve of the corrective measures of the Confederacy, or not. Unless there is a complete breakdown of the organization, the other organs will have no choice but to accept the word of the Assembly. • In my view, the political route under the Charter is preferred, because the outcome is controlled by First Nations. However, it is conceivable that one side or the other will go to the Canadian courts if the desired outcome is not achieved in the First Nation political process. • Assuming the justiciability issue is not a show-stopper and assuming the actions of the Confederacy are supported by the Assembly, my view is that the Confederacy should be successful in court, except in the most unusual circumstances. A crucial pre-condition is for the Confederacy to follow the dictates of the Charter, as it has endeavoured to do since May of 2014. The party relying on the Charter in court must be seen to abide by the Charter in its own conduct. 10 How would the Confederacy of Nations enforce a legally-sound course of action in the event enforcement were to be necessary? • The first step would be for the Confederacy to follow the meeting rules under the Charter and to seek to exercise its powers and functions under article 12 of the Charter, including the option of remedial action against other organs of the AFN. It is important to be procedurally correct; it is clear from the record I have reviewed that every reasonable effort has been made since May to follow correct Confederacy procedure and to work cooperatively with the AFN as a whole. • The second step would be to report to the Assembly and to seek endorsement for the actions and positions of the Confederacy. • If the Assembly endorses the Confederacy position and there is still resistance after the Assembly, the next step would be to consider legal action in the Canadian courts. Generally speaking, litigation is a last resort. However, when First Nation rights and interests are at stake, this unpalatable step may be necessary. • I think that the justiciability issue can be managed by including the NIB as a party in any litigation. Even if the other Charter organs are not formal legal entities, the decisions of such organs have to be implemented on a day-to-day basis through the NIB or Secretariat. So, any court order against the NIB should be effective. • My overall view is that the Confederacy position in court should be quite strong, as long as the meeting and other Charter requirements are met in substance, and as long as there is support from the Assembly. • If the matter goes to Court, the main line of defence from opponents may be some version of the argument that the Confederacy is no longer valid or legitimate because of the decade of dormancy and Assembly support for the Renewal Commission recommendations in 2007. However, my view is that this position is not very substantial. Regardless of the Renewal Commission process, the bottom line is that the Charter was not amended to abolish the Confederacy. The Chiefs chose not to amend the Charter. The current version of the Charter on the AFN web site includes all Confederacy provisions. Reliance on the dormancy period as a form of convention or practice cannot stand up to the black and white wording of the Charter. There is no ambiguity in the Charter that can be influenced by convention or practice. The Charter makes clear in several provisions that the Confederacy is a central organ of the AFN, second only in political authority to the Assembly. 11 The business affairs of the AFN are, pursuant to the Charter, operated by the NIB, Inc. In the event the Confederacy of Nations found that funds were being expended without it having approved the budget or because of other irregularities, how would the Confederacy of Nations be able to intervene in the NIB’s operations, banking, etc.? • The Confederacy function of approving, allocating, monitoring, and controlling the fiscal resources of the AFN is clearly spelled out in article 12(g) of the Charter. The NIB or Secretariat is bound to follow the decisions of the Confederacy: articles 26(1) and (3). • In the period of Confederacy dormancy, the fiscal control function of the Confederacy was clearly not exercised. Yet, life went on for the NIB and the other AFN organs. In my view, it would be a stretch to question any budget management during this period on the basis of lack of input from the Confederacy. A challenge along these lines would affect credibility. • The situation has changed with the revival of the Confederacy in May of 2014. The Confederacy is still a fully recognized organ in the Charter, with all its attendant powers and obligations, including fiscal management. In the transition period or early days, some accommodation is required. This is because budget and other fiscal decisions would have been made in good faith before May without the input of the Confederacy. Some of these decisions would have led to contractual and other legal arrangements that cannot be unwound without consequence. • With the revival of the Confederacy, the principle of Confederacy fiscal management is clear. Some allowance for existing arrangements is necessary in the transitional period. Transitional accommodation may be necessary until the next budget cycle (2015-16). • Even taking into account transitional accommodation, the NIB and other AFN organs are required to work with the Confederacy in its implementation of fiscal management, including the provision of all relevant information. • If there is any resistance from the NIB on the budget front, this can be reported to the Assembly. It is hoped that the Assembly would endorse the Confederacy position, and that would be end of the matter, except for some understandable growing pains. • If there is continued resistance of a substantial nature, even after the Assembly endorses the budget position of the Confederacy, administrative follow-up steps might include AFN re-organization (including Charter amendments) and negotiation with funding sources. If these steps are not successful or are deemed insufficient, given the time frame, the Confederacy may consider legal action. • There is no doubt that the NIB is a suable entity. The task would be to enforce the obligations of the NIB under the AFN Charter. As long as the Confederacy position is supported by the Assembly, my view is that the chances in court would be good. • “Irregularities” may represent a different category of consideration and response. If the irregularities relate to reasonable judgment calls about budget matters, they can be treated in the regular way, as discussed above. However, where there is reasonable suspicion of a deliberate misallocation or assignment of funds for personal or other gain, criminal conduct may be in question. Depending on the circumstances, a range of measures may be considered, including employee discipline, voluntary reimbursement of funds, insurance, and contact with the police. It is hoped that this category of irregularities would be handled in a professional manner, regardless of the Confederacy issue. However, if not, it is definitely within the function of the Confederacy under article 12 of the Charter to intervene and do what is right. Thanks. Thank you Wiindawtegowinini Isadore Day for sharing this important information. Education is power and allows us to make good, informed decisions.
Posted on: Tue, 15 Jul 2014 19:13:57 +0000
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