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Joseph QuesnelFirst Nations communities across the country are adopting constitutions that prove bands do not have to wait for the Indian Act to be repealed or replaced for progress to be made on the ground.

Band officials are discovering that these documents allow their communities to build culturally appropriate institutions of self-government and good governance. Their example needs to be emulated across Canada.

Most importantly, First Nations are discovering that mainstream courts are recognizing these constitutions in their rulings.

Mississauga First Nation (MFN), a small band in Northern Ontario, is one of the most recent communities to ratify a community-based constitution that they hope in time will replace the Indian Act.

said the constitution reinforces the community’s election laws, land use planning and land management, as well as educational programs. In time, he said, the community could have its own judicial system with courts.

Niganobe also said “the document allows the band to create economic stability by enabling business investors to seek legal recourse if a business defaults on a loan.”

The constitutional development process, he said, started in the 1980s with the community elders. Decades of work led to membership ratification in March 2014. The constitution leaves parts of the Indian Act in force until those sections are replaced with community laws and traditions.

Moving away from the Indian Act was not without its challenges, he said.

Some community members were hesitant, having been under the Indian Act for so long. Some worried there might be chaos after ratification. That risk was eliminated by ensuring all Canadian laws remain in place until replaced or modified by Mississauga law.

Niganobe said they drew from other ratified constitutions to ensure they did not have to “re-invent the canoe.” Nipissing First Nation – another band in Northern Ontario – ratified the first constitution in Ontario, and there are reports that 31 First Nations communities in Ontario are drafting constitutions.

Besides allowing a First Nation to define its identity on paper and move towards self-government, a community-designed constitution allows bands to develop institutions of good governance that promote accountability and transparency.

At the Roseau River Anishinabe First Nation in Manitoba, the constitution allowed for legislative power to be vested in a custom council made up of family representatives that was tasked with overseeing the activities of the elected chief and council. The custom council questioned chief and council’s financial disclosure and the matter went to court. It ruled the chief and council could not simply ignore the custom council, and instructed the band government to pay attention to its own constitution when resolving community disputes.

Another Ontario First Nation had the legitimacy of its constitution challenged in court. In a case involving the Wikwemikong Unceded Reserve – a First Nation located on Manitoulin Island in Northern Ontario – a judge ruled that Wikwemikong had a dually passed constitution in the community. The judge said that the court has no business addressing (this challenge) in the court, and punted the dispute back to the community.

These two examples show First Nations have tools that allow bands to create culturally appropriate institutions of good governance.

Some legal scholars, however, are concerned about these constitutions. Darren O’Toole, a law professor at the University of Ottawa, said that he is, “worried and hopeful at the same time” about the future of constitutions.

If governments do not recognize these constitutions, there could be a problem with enforcement of the law. Business uncertainty over jurisdictions could also create problems with investment decisions, he said, because one is unsure who is legislating. But he said these constitutions can provide for more political breathing space for First Nations, allowing them to revive their traditional laws and governance.

There is, however, no question that Ottawa must play a role in recognizing and promoting these constitutions so that more First Nations can develop the institutions they need to succeed.

Joseph Quesnel is an Aboriginal policy analyst who focuses on Aboriginal policy, property rights, and water market issues.

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