First Nations win Federal Court battle over transparency law

Five First Nations took law to Federal Court

Brandi Morin
APTN National News
The Chief of the Onion Lake Cree Nation, Sask., who was at the forefront of a legal battle against Ottawa over the First Nations Financial Transparency Act (FNFTA) says he was expecting a win before the courts.

“I was quite confident that we would win right from the get go,” said Chief Wallace Fox.

The decision released Friday by Federal Court of Canada Justice Robert Barnes ordered the federal government to stop pursuing legal action against several First Nations who have yet to submit their public financial disclosure to the federal Aboriginal Affairs department.

“It means a very positive change, a turnaround for First Nations that this is a precedent setting, high profile case. And that all First Nations don’t have to do what Indian Affairs tell us to do in terms of their legislation,” said Fox.

Five First Nations in Saskatchewan and Alberta protested the legislation and took the case to court. The ruling is also a win for Sawridge First Nation, Athabasca Chipewyan First Nation, Thunderchild First Nation and Ochapowace Indian Band who were part of a wider court challenge.

Hearings wrapped up last August amidst wide-spread media coverage over the matter.

Fox said First Nations were not consulted on the passing of the FNFTA and he argues that requiring First Nations to post their financial information is a violation of Aboriginal and treaty rights.

Also, Fox believes that racism played a key role in creating the legislation.

“It’s always about this discrimination and sorry to say, for me it’s racism,” said 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.”

The band’s money is not tax-payer or public money and shouldn’t be subject to public disclosure, Fox said.

“This is Indian money, there’s another part of this, it’s a whole bigger picture,” he said.

He said the deputy minister representing the Crown in court stated in his affidavit that the funds are in fact Indian monies.

“The affidavit was examined by our lawyers and it stated that Canada specifically denies that these funds are public tax monies, but are Indian monies. They even acknowledged that and that was one of the biggest pluses for us,” he said.

The broadcasting of individual bands’ financial information would have a negative impact on business ventures by allowing competitors to outbid work opportunities, said Fox.

Onion Lake is already fiscally accountable to its members, said Fox. Every year the band holds a budget planning meeting that outlines all programs, Aboriginal Affairs and Northern Development Canada (AANDC) funding as well as band source revenue that’s shared with members, he said.

Fox said he explained this to former Aboriginal affairs minister Bernard Valcourt two years ago.

“I said to him (Valcourt) ‘Is Onion Lake transparent, or are you?’” said Fox. “He got upset and said, (in regards to FNFTA) ‘Well, if you don’t like what we’re doing there’s always a legal process, take us to court.”

This court case was something Fox said Onion Lake had been preparing for ahead of time by creating its own revenue stream to cover costs. Onion Lake is the largest oil and gas producing First Nation in Canada.

He said Onion Lake didn’t back down when threats were made by Aboriginal Affairs to cut off funding should they not comply with the FNFTA.

“They threatened us last December. And we said, ‘go ahead, cut off the funding, see where it leads you.’ We stood our ground,” he said.

The government did withhold more than $1 million for programs and services from Onion Lake. Judge Barnes ruled that Onion Lake could seek remedies either in good faith with AANDC or go back to court.

Now that a stay has been granted against the FNFTA legislation Fox is hoping the newly elected Liberal government will not seek to appeal the court decision.

“We’re very optimistic that things will be changing for the better for all First Nations people,” he said.

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