November 18, 2015

Dear Minister Bennett:

We write to respectfully urge you to address an important matter which is impeding the ability of First Nations to access information from your ministry for the purposes of filing specific claims. Specific claims deal with Canada’s failure to fulfil historical lawful obligations to honour its treaty promises to First Nations and to protect reserve lands and assets from illegal alienation and mismanagement.

Over the last year, managers and staff working in Information Services at INAC have been denying researchers access to records necessary for specific claims. The denial of records is based on an internal policy that does not recognize the validity of existing Band Council Resolutions (BCRs) authorizing this access if a Band elects a new Chief and Council. INAC staff has stated they require a new BCR in order to release a Band’s records. This policy has been communicated through email without reference to any statutory or regulatory provision.

There is no valid justification for INAC mangers and staff to refuse access to records on this basis.

Band Council Resolutions are legal instruments that reflect a Band Council’s decisions made in accordance with the Indian Act and Regulations. There is no expiration provision in the Indian Act and Regulations that states that BCRs become invalid upon the election of a new Chief and Council.

Decisions made at duly convened Band Council meetings that are reflected in BCRs are not those of the individual councilors in attendance but of the Council in its representative capacity. As such, these decisions do not lapse due to a change in band Council membership.

It is through BCRs that a band’s Chief and Council authorizes centralized claims research units (CRUs) to conduct specific claims research on the band’s behalf and access records which provide documentary evidence for specific claims. Access to information is essential to ensuring the just, fair and timely resolution of these longstanding grievances. The policy of denying the validity of BCRs following Band elections creates unnecessary delay and adds significant costs to the specific claims research process, a process within which First Nations are already at a disadvantage for lack of resources. The policy also undermines the authority and legitimacy of Band governments to make decisions as elected representatives acting upon the wishes of their communities. The policy and its implementation makes it appear as though the federal government is more interested in impeding the resolution of specific claims rather than achieving justice for First Nations.

The just resolution of these outstanding lawful obligations represents a key component of your government’s commitment to renewing the relationship between Canada and Indigenous Peoples. As Prime Minister Trudeau stated in his mandate letter to you: “This renewal must be a nation-to-nation relationship, based on recognition, rights, respect, co-operation, and partnership. .” As part of this renewal your party pledged to take “serious, concrete actions to demonstrate its commitment to recognizing, respecting, and fulfilling its obligations and commitments to First Nations.” We also note your government’s intention to develop a Federal Reconciliation Framework in full partnership with First Nations, which includes addressing outstanding land claims.

You have publicly stated your government is committed to achieving tangible outcomes and “going forward in a good way” with Indigenous communities in the process of reconciliation. To this end, we respectfully urge you communicate to INAC managers and staff that the policy of requiring new BCRs to access documents for specific claims research has no basis in law since BCRs do not expire upon a change of Council and as such the policy has no validity and that all attempts to implement it must stop.

Please find attached a legal review of the internal “Invalid BCR Policy” which provides background on the issue and outlines the implications of continuing to adhere to such a flawed approach.

On behalf of the UNION OF BC INDIAN CHIEFS

[Original signed]

Grand Chief Stewart Phillip
President 

Chief Robert Chamberlin
Vice-President 

Kukpi7 Judy Wilson
Secretary-Treasurer

CC:
Jody Wilson Raybould, Minister of Justice and Auditor General
Mélanie Joy, Minister of Canadian Heritage
Chief Maureen Chapman, Chair, BC Specific Claims Working Group
Union of BC Indian Chiefs Council
National Chief Perry Bellegard, Assembly of First Nations
AFN Chiefs Committee on Claims
BC Assembly of First Nations
First Nations Summit

Declaring BCRs Invalid - Informal Access to Information Access to Information Process (PDF)