Supreme Court of Canada –  2 S.C.R. 897
The Davey case is one of the first to address the issue of Indian self-government. This judgement maintains the reasoning that Indians are pupils of the State, and the federal Crown has the power to determine their mode of governance.
This tendency was partially reversed with the entrenchment of Aboriginal rights in the Constitution, the Charlottetown negotiations and the establishment of federal policies recognizing the Aboriginal right to self-government.
Did the Governor General’s Order-in-Council issued under the Indian Act put a valid end to the system of government led by the chiefs?
Are the Six Nations Indians a band within the meaning of the Indian Act?
The Six Nations constitute a band within the meaning of the Indian Act and the Order-in-Council regarding their mode of elections and governance is valid (unanimous decision).
Between: Ackland Davey et al.
And: Richard Isaac et al.
In 1951, an Order-in-Council was issued by the Governor General, acting on a recommendation of the Department of Indian Affairs, ending the Six Nations Indian Band’s system of government by hereditary chiefs and replacing it with a council elected in accordance with the Indian Act.
In 1970, a faction of the band supporting the Hereditary Chiefs system, Davey et al., padlocked the door of the Council House and blocked access to the building, with the help of other members, in order to prevent the elected council from meeting and governing. They advocated the return of the hereditary chiefs. The Council, Isaac et al., turned to Ontario’s High Court for a permanent injunction on their behalf and on behalf of their constituents, with the exception of Davey et al., restraining them from interfering with the access to and use of the Council House
Davey et al.: The Order-in-Council declaring that the election of the band council must be made in accordance with the Indian Act is invalid. The Governor in Council did not have the authority to enact it, as the Six Nations Indians did not form a “band” according to the definition found in the Indian Act, and that there was no evidence that the federal government still held a trust fund for the benefit of the Six Nations Indians.
Isaac et al.: The Council House was to be used for the purposes of the band council elected in accordance with the Indian Act.
Ontario High Court (1973): The trial judge dismissed the application a permanent injunction to prevent the defendants from interfering with the plaintiffs’ use of the Council House for the Six Nations Reserve. The legal title to the lands was vested in the members of the Six Nations, making them sovereign. Therefore, the Governor General in Council did not have the authority to replace the Six Nations’ governing system with an elected one, since they did not constitute a band in the sense of the Indian Act.
Ontario Court of Appeal (1973): Dismissed the appeal and reversed the decision of the trial judge.
Laskin, Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, de Grandpré
The Six Nations are a “band” within the meaning of the Indian Act.
The evidence showed that the money from the sale of parcels of their land prior to Confederation was held by the Crown for “their use and benefit in common.” The question of whom the title for the lands was vested in is irrelevant here.
The Order-in-Council was valid. Davey et al. did not have the authority to stop access to and use of the Council House by the council, which was the lawful government of the band.
Policy of assimilation
Before the Europeans’ arrival on Canadian territory, each Aboriginal group had its own political system and institutions. The French Crown and, afterwards, the British Crown, did not interfere in their internal political affairs until the forming of the Canadian Confederation in 1867.
The federal government’s policy towards Aboriginal people was one of assimilation. In order to achieve the goal of integrating them into Canadian society, it tried to impose an elective system on Indian bands, similar to the municipal system, with little power given to the councils. The authorities deemed this type of government to be “more responsible” (Standing Senate Committee on Aboriginal Peoples, 2010: 3-4).
In 1869, Parliament adopted the first legislation pertaining to “Indians, and Lands reserved to Indians,” the Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of the Act 31st Victoria, Chapter 42. Indian bands were now governed by elected chiefs who could be removed by the Governor in Council if he deemed that they were being “dishonest, intemperate or immoral” (Bartlett, 1988: 18). At the same time, customary governments chosen under hereditary, clan or consensual systems were still allowed, but not encouraged. For a number of bands with a hereditary model of political power, the Indian Act’s elective system was not considered mandatory and was never applied (Standing Senate Committee on Aboriginal Peoples, 2010: 8).
The forced adoption of an electoral system
The provisions for the governance of bands were kept intact, albeit with some small changes, until 1880, when new amendments to a consolidated Indian Act provided for the Government of Canada to impose an elective system on Indian bands. Further changes were introduced in 1884 by the Indian Advancement Act, which now permitted band councils to draw up by-laws, subject to the Superintendent-General’s approval (McNeil, 2003: 336). After band leaders in the West resisted the imposition of the reserve system, another amendment was introduced in 1895, allowing the Minister of Indian Affairs to remove traditional chiefs and councillors in communities where the elective system set out by the Indian Act was not applied (Standing Senate Committee on Aboriginal Peoples, 2010: 5).
In 1951, the Indian Act was thoroughly revised by Parliament, and the notion of customary elections was introduced. The definition of “council of the band” in s. 2 (1) was extended to include in its scope bands that chose to be governed according to their customs. Only those exempted expressly by the Governor in Council were not subject to the Indian Act (Id.: 341).
After the entrenchment of existing Aboriginal and treaty rights in the Constitution, the Indian Act had to be modified to comply with the Constitution Act, 1982. Some elements of self-government were therefore included. The current version of the band governance provisions came into force in 1985 under Bill C-31, the same statute that ended the revocation of Indian status for Indian women who married non-Indians. First Nations gained the power to enact their own membership codes, and their councils were given more legislative powers (Id.: 349-350).
In 1988, the Mulroney government’s Conversion to Community Election System Policy allowed bands falling under the Indian Act’s election process to revert to elections based on custom. They were required to have a written code respecting the Charter of Rights and Freedoms, in establishing a procedure for appeals and allowing off-reserve members to vote and participate in the governing body. The customary code was then submitted to the community for approval (Crane, Mainville and Mason, 2006: 183; INAC, 1988). Aboriginal traditionalists criticized this policy as representing the imposition of a governance model very similar to the one found in the Indian Act. Customary codes had to respect an Euro-Canadian ideology, with the criteria pertaining to the observance of the principles of natural justice and procedural fairness (Standing Senate Committee on Aboriginal Peoples, 2010: 31).
After the rejection of the Meech Accord in 1990 by Newfoundland and Manitoba, due in part to the lack of measures for Aboriginal people, another constitutional process was initiated by the federal government. The four largest Aboriginal interest groups, the AFN, the Inuit Tapirsat of Canada, the Native Council of Canada and the Métis Council of Canada, all took part in the negotiation process leading to the drafting of the Charlottetown Accord. The Accord’s objectives were to resolve the national crisis that had begun after the exclusion of Québec during the partition process and to address other constitutional issues: the Western provinces’ alienation from the central government, Senate reform, and Aboriginal governance and land and resource management. If it had been approved, First Nations’ right to self-government would be included in the Canadian Constitution. After a Canada-wide referendum, the Charlottetown Accord was rejected by 52 percent of the voters (Crane, Mainville and Mason, 2006: 54-55).
With the federal government’s recognition of First Nations’ inherent right to self-government in its 1995 policy, a situation such as that in Davey, where an electoral system for band councils was imposed on First Nations, would be considered as an infringement of their Aboriginal rights. The Indian Act’s election provisions diminished the hereditary chiefs’ capacity to maintain their traditional roles (McNeil, 2003: 341; Crane, Mainville and Mason, 2006: 57).
In 2010, according to the Department of Indian Affairs and Northern Development, 252 bands have their councils elected according to the Indian Act, 334 hold customary elections, 29 First Nations choose their leaders in accordance with a self-government agreement, and 10 to 15 bands use another form, such as a hereditary or clan system (Standing Senate Committee on Aboriginal Peoples, 2010: 6).
Bartlett Richard H. 1988. The Indian Act of Canada. 2nd ed. Saskatoon: University of Saskatchewan Native Law Centre.
Crane Brian A., Mainville Robert and Martin W. Mason. 2006. First Nations Governance Law. Markham: Lexis Nexis Butterworths.
Minister of Indian Affairs and Northern Development. 1988. Conversion to Community Election System Policy. Ottawa: Government of Canada.
McNeil Kent. 2003. Challenging Legislative Infringements of the Inherent Aboriginal Right of Self-Government, in Windsor Yearbook of Access to Justice 22 : 329-362.
Six Nations Council. 2004. Six Nations Council Election Code. Online. http://www.sixnations.ca/Policy.htm. Accessed June 22, 2010.
Standing Senate Committee on Aboriginal Peoples. 2010. “First Nations Elections: The Choice is Inherently Theirs”. Online. http://www.parl.gc.ca/Content/SEN/Committee/403/abor/rep/rep03may10-e.pdf. Accessed June 22, 2010.