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Indigenous David and Goliath Lesson

This originally appeared in The Lawyer's Daily.

Naomi discusses governance issues in Indigenous communities.

The current global pandemic has presented a series of unique issues for both lawyers and clients alike. However, what remains unchanged and presented itself more prominently is the need for federal governments to provide Indigenous communities with adequate funding to ensure self-governance can proceed in a sufficient manner.

In a 2019 Alberta Law Review article, Angelique EagleWoman wrote, “One of the pillars of self-government is the ability to resolve disputes peaceably and provide organization to society.”

The ability to self-govern represents a way for Indigenous communities to truly harness their powers for good and for the good of their citizenship. One of the solutions that EagleWoman presents is the Indigenous community courts. These are courts that centre the community’s needs and abilities to host courts in their communities.

Often, Indigenous communities are located far from a courthouse, and as described in EagleWoman’s article, circuit courts or fly-in courts do not present a solution.

For example, EagleWoman describes one community struggling with judges agreeing to host court in the community, often citing a public safety concern. A discriminatory stereotype of Indigenous communities presents itself again and again: Indigenous communities deemed so unsafe, demanding the protection from their own selves. Remember, this is exactly why the Indian Act was created, to protect the Indians — from the Indians.

While EagleWoman’s article presents a way forward, I fear too much about the lack of support at the community level. The level of fraud and dishonesty that I see chiefs and councils participating in, hiding by the shield of self-governance, leaves me worried for their citizenship.

I receive inquiry after inquiry about citizens being evicted from their homes without proper notice or without proper authority. I do my best to advance their interests but with the bands funding their counsel with money they receive either from band/First Nation-owned companies or government funding, the resources are almost endless — it is David against Goliath.

My own community tried to banish individuals, which made matters worse at each step of the way, and instructed counsel to defend a Federal Court application which ultimately proved that my band knew of their conflicts of interest. Often times, the court applications are defended by big city firms with no lawyers on payroll who live in the community or grew up in the community.

I also fear that many of these chiefs and councils have a legacy of bad governance that they are not fit for self-governance. Bad decision after bad decision, being upheld only because one family has it out for the other.

While I have hope for our communities, they need to look inward and start reflecting on how their own behaviour is part of the problem. It takes two to tango and ultimately, both Indigenous and colonial governments are part to blame for the governance issues in our communities.


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