Institutional design and the accountability paradox: a case study of three Aboriginal accountability regimes in Canada.

Alcantara, Christopher ; Spicer, Zachary ; Leone, Roberto 等

Introduction

Indigenous groups in Canada are at the forefront of experimenting with new forms of Aboriginal self-government and institutional design. Although the literature analysing these developments is rich and varied (Abele and Prince 2003; Abele and Prince 2006; Belanger 2008; Coates and Morrison 2008; Alcantara and Whitfield 2010), there is relatively little scholarship that comparatively, systematically and empirically examines Aboriginal accountability and transparency regimes in Canada. This lacuna is surprising in two respects. First, the success of any form of self-government, whether Aboriginal or not, is partially dependent on the accountability and transparency measures built into the governance system (Cornell 1993). Second, accountability and transparency in Indigenous communities have been the subjects of significant public attention over the last decade, with much of that attention focusing on the behaviour of Indian Act band council governments and their officials. As a result, a number of commentators have suggested that Indigenous governments and their leaders are inherently corrupt and self-serving (Widdowson and Howard 2008).

Shin Imai (2007) suggests, however, that this stereotypical image is false. Instead, he argues that Indigenous scandals and corruption on Canadian Indian reserves occur because of an accountability paradox that the Canadian state has imposed on them through the Indian Act. On the one hand, the Indian Act gives too little power to chief and council to make decisions, with one study suggesting that the federal minister of Indian affairs can interfere in almost every area of band council decision-making (Canada, Royal Commission on Aboriginal Peoples 1996: 70). On the other hand, the Indian Act provides too much power to chief and council, with band members not having access to robust accountability mechanisms for overseeing the actions of their elected officials. The result is a system of governance that is highly flawed and problematic for Indigenous communities (Shepherd 2006; Abele 2007).

This paper builds on the work of Shin Imai by assessing his analysis using empirical and comparative evidence. Imai's core assumption is that accountability and transparency regimes on Canadian Indian reserves are ultimately determined by the institutional design imposed by the Indian Act. In this paper, we explore this assumption that institutional design matters by analysing three cases of institutional design that seek to avoid the paradox: the Sechelt Indian Band and the Westbank First Nation in British Columbia, and Nunatsiavut in Labrador. Using primary and secondary documents, we examine to what extent each of these communities is able to avoid the accountability paradox identified by Imai to produce more robust accountability and transparency regimes. (1) Our findings suggest that Aboriginal groups can avoid the accountability paradox by opting out of the Indian Act to create their own self-government regimes. The effectiveness of these accountability regimes, however, varies substantially according to the institutional designs chosen by the different Indigenous groups.

The paper proceeds as follows. We begin with some theoretical considerations regarding the concept of accountability before sketching out in more detail the paradox identified by Imai. Next, using public documents and secondary literature, we examine the governance structures of our three cases in relation to the accountability and transparency regimes they construct. We then analyse these regimes in terms of the extent to which they avoid or reproduce the Crown-Aboriginal government and the Aboriginal government-band member aspects of the paradox. Finally, we end with a discussion of the implications of our findings for future research on Aboriginal accountability regimes in Canada.

Theoretical considerations

The concept of "accountability" is a multifaceted term. In its most basic form, accountability refers to a certain type of relationship, traditionally between elected government officials and members of the electorate (Moncrieffe 1998: 389). Grant and Keohane develop this concept further by arguing that "Accountability, as we use the term, implies that some actors have the right to hold other actors to a set of standards, to judge whether they have fulfilled their responsibilities in light of these standards, and to impose sanctions if they determine that these responsibilities have not been met" (2005: 29). Accountability, in their view, implies the existence of interconnected relationships between those entrusted to act in the interest of a larger group, and those who have entrusted this group of actors to act in their interest. The norms and values of this larger group are spelled out in standards, which are agreed collectively, usually through a constitutional document (Alcantara and Whitfield 2010; Borrows 2010). These standards are maintained through the threat of sanctions against those who violate the agreed-upon norms and rules of accountability (Fearon 1999). In this sense, accountability involves both expectations about performance and sanctions for violating those expectations. To make sense of these various factors, Fearon (1999: 55) suggests that accountability relations are in fact a type of agency relationship, where one party is understood to be the "agent," who makes some choices on behalf of the "principal," who then has the power to sanction or reward the agent.

Accountability is, however, not always a straightforward relationship between one principal and one agent. Instead, accountability relationships may be highly complex especially when there is a layering of accountability or if a particular organization is accountable or perceived to be accountable to numerous sources. Koppell (2005: 94) characterizes these situations as "multiple accountabilities disorder," which occurs when "conflicting expectations borne of disparate conceptions of accountability" undermine an organization's effectiveness. This "multiple accountability disorder" phenomenon is tailor-made for describing Aboriginal governance and accountability in Canada because Indigenous governments are frequently subject to multiple actors and authorities seeking to hold them accountable for their actions.

Shin Imai (2007) provides an important example of this situation by suggesting that all band councils in Canada are subject to an accountability paradox created by the Indian Act. On the one hand, the Indian Act is commonly criticized for giving band councils too little authority to act independently from federal interference. On the other hand, critics suggest that the legislation gives band councils too much authority to act independently against the wishes and concerns of individual band members. In short, Imai suggests that the Indian Act funnels power in one direction: from the federal government down towards the chief and council and finally to the community members, resulting in dysfunctional government.

Other scholars (Brunet-Jailly 2008; Coates 2008) have also made note of the existence of this important paradox. Frances Abele, for instance, argues that the Indian Act "resembles an ill-fitting boot that pinches in all the wrong places and provides no support where support is needed the most" (2007: 3). In her critique of the Indian Act, Abele notes that too much institutional power is held by the executive which in turn limits the ability of band governments to be responsive to their members. In short, the Indian Act is not only a legislative relic, but it is also a significant roadblock to more accountable and transparent government because it mandates one set of institutions to the exclusion of others (2007). Robert Shepherd (2006) reaches a similar conclusion in his examination of federally and provincially imposed accountability regimes.

To illustrate this paradox, Imai focuses on three areas in which the band council can exercise some authority under the Indian Act: the allocation of reserve lands, First Nation law-making powers, and custom elections. In each of these areas, however, the federal government has the authority to overrule the decisions of the chief and council (Imai 2007: 2-4). In terms of the allocation of reserve lands, the Indian Act allows a band member to apply for a certificate of possession (CP). Yet the acquisition and use of that CP are subject to all sorts of federal constraints. To receive a CP, for instance, requires the member to acquire band council approval and the approval of the minister of Indian affairs, neither of which is automatic (Alcantara 2005).

In the case of the band's ability to pass by-laws, Section 81 of the Indian Act lists 22 subjects that the band can legislate. To pass a by-law under this section requires the chief and council to achieve a majority vote in a council meeting. There is no requirement to circulate a draft by-law to the community, nor does the band have to inform community members that a vote on the by-law is going to take place. After the vote, the band council sends the by-law to the minister who then has 40 days to disallow it. According to Imai, "in the past the disallowance rate was very high. The Minister is not required to give any reasons for disallowing the by-law" (2007: 3). Similarly, Section 83 allows the band to pass taxation and expenditure by-laws. Again, the band council is not obligated to consult its members about these by-laws and the minister must again approve these by-laws before they can come into effect. Section 85 provides the band council with the power to pass by-laws banning alcohol on reserves. Such a by-law requires band member electors to attend a special meeting on the issue and to vote in favour of the by-law. In contrast to the other by-laws, the minister cannot disallow this by-law unless there were procedural irregularities. Finally, Section 10 gives the band council the power to pass by-laws regulating membership codes. To do so, the band must inform its members that it intends to pass a membership code, and it must acquire the approval of a majority of the members who are qualified to vote. Once this majority is obtained, the band council sends the code to the minister who can only reject the code on the basis of procedural irregularities (Imai 2007: 4).

In terms of custom elections, almost all bands in Canada held Indian Act-regulated elections until the mid-1990s. During this time period, each band member voted using a secret ballot, and the candidate who received the most votes was elected. If an election was disputed, members had to approach the minister who then made a recommendation to the federal cabinet. Cabinet would then decide on whether another election was needed. If a band council member was found guilty of a corrupt practice, such as accepting a bribe, the minister of Indian affairs had sole authority to remove the member. During the mid-1990s, a number of band councils began to exert their authority and hold custom elections according to Section 2(1) of the Indian Act. To exercise this power, bands had to develop an electoral code and gain community approval through a referendum or other community approval process, such as going door-to-door and having members sign the actual code. Once this process was completed, the minister determined whether the code was acceptable, and could insist on changes being made before granting approval (Imai 2007: 5).

In general, the examples above illustrate a band council governance structure that provides the minister of Indian affairs with significant power to interfere in band governance. As well, band members seem to have relatively few oversight powers over their chief and council, beyond the chance to vote every two years. As a result, band councils seem to be relatively insulated from band member oversight, which is especially true in smaller communities where factions are more likely to emerge and become influential.

For Imai, the solution is for First Nations to design government systems that reduce or eliminate the role of the federal government in band affairs, most likely through a negotiated self-government agreement. As well, Imai suggests that these new self-government structures need to provide more transparency and accountability for community members in the decision-making process of the chief and council. To accomplish these goals, he believes that First Nation governance structures should reflect three factors: 1) community participation; 2) respect for core principles; and 3) authority to certify and interpret laws and decisions.

Community participation

Imai argues that members of a community should be able to participate actively in the affairs affecting them, and that chief and council should not be able to decide each issue in isolation. While he argues that it may not be appropriate to have a community meeting before every decision, there are ways to build in community participation. These mechanisms include a secret ballot, community meetings, door-to-door canvassing, and holding discussions in family circles with representatives of families meeting to reach consensus. For routine matters, an announcement over the community radio or website may be sufficient (Imai 2007: 6).

Respect for core principles

Imai (2007: 7) argues that law-making is not simply about making rules that have the support of the majority of voters. Instead, accountability involves respect for core principles that are important to the cultural survival of the community. In Canada, the Constitution Act of 1982 and the Canadian Charter of Rights and Freedoms are said to reflect the core principles that Canadians hold dear (Cairns 1992; Ajzenstat et al. 2003). Similarly, a number of Indigenous groups have codified their core values through a written or unwritten constitutional regime (Ladner 2005; Alcantara and Whitfield 2010; Borrows 2010). A First Nations governance regime that encapsulates a community's core principles should empower band members to successfully challenge their band council when necessary (Borrows 2010: 207).

Authority to certify and interpret laws and decisions

Imai (2007: 8) argues that any codes or laws enacted should be enforceable in a transparent manner. Internal mechanisms should be avoided because the opportunity for corruption is significant. Instead, Indigenous groups should turn to external mechanisms to avoid conflicts of interest and bias. For example, individual First Nations could agree to be bound by the decisions of a regional or even national tribunal comprised of respected First Nations individuals (Borrows 2010: 86, 207-210). Additionally, Imai argues that First Nations laws should be well known and widely publicized.

In the next sections of the paper, we examine the governance structures of three Aboriginal communities: the Sechelt Indian Band and the Westbank First Nation in British Columbia, and Nunatsiavut in Newfoundland and Labrador. We analyse their governance structures with the following questions in mind: 1) do these alternative institutional designs avoid the Indian Act accountability paradox described above; and 2) to what extent do these alternative designs produce better (or worse) accountability regimes?

Case studies

The Sechelt Indian Band in British Columbia

The Sechelt Indian Government District in British Columbia is a quasi-municipal government that sits at the intersection of municipal and band-style governance regimes. The Sechelt government, for instance, has the authority to levy property taxes annually on all residents and businesses, purchase services, such as fire protection and garbage collection, collect and remit school taxes, regional district taxes, regional hospital taxes and assessment authority taxes, and it participates in the operation of the Sunshine Coast Regional District (British Columbia, Ministry of Aboriginal Relations and Reconciliation 1996). The Sechelt Indian Band was originally granted this type of self-government through the passage of the 1986 Sechelt Indian Band Self-Government Act (S.C. 1986, c.27), which completely removed the band from the authority of the Indian Act. This legislation was approved by the Sechelt community through a successful referendum vote held on 15 March 1986 (Canada, Department of Justice 1986).

Aboriginal government-band member paradox

Beginning with the accountability relationship between the band government and its members, the Sechelt Indian Government District provides its members with limited accountability mechanisms to hold band officials accountable beyond regular elections. The Sechelt are governed by a band council, which consists of an elected chief and council. Council elections and referenda are overseen by an independent electoral officer whose job is to determine the eligibility of candidates, send out notices of the vote to band members, oversee the results, and adjudicate any discrepancies after voting is complete. Council meetings are open to the public, and they must be notified about the meeting thirty days in advance. As well, the Sechelt constitution requires any member of council who has a conflict of interest to declare it and remove themselves from the debate and vote on that matter (Canada, Department of Indian Affairs and Northern Development 1987).

The band council is responsible for collecting and spending revenue. All Sechelt funds are placed in a band bank account, for which there are three signing officers, only two of whom are band council members. The band council must hire a treasurer, who is responsible for receiving and disbursing all band funds (Canada, Department of Indian Affairs and Northern Development 1987).

At the end of every fiscal year, a detailed financial statement is created by council and made public shortly thereafter. The yearly budget needs to be presented to the community before it can be approved by chief and council. The Sechelt government is also required to hire an auditor, who examines all financial records and transactions, and submits a financial statements report to the band council (Canada, Department of Indian Affairs and Northern Development 1987).

The Sechelt governance structure contains a number of conventional accountability mechanisms, such as the identification of leadership responsibilities, open elections, the publication of laws, access to information and independent financial auditing. Many of these mechanisms promote transparency of band activities, but significant power remains vested in the chief and council. Indeed, there are few avenues for community participation outside of elections, which also means that band members cannot remove the chief and council due to maladministration prior to the end of their term. Additionally, there is no separation of powers, with the chief and council being the only community representatives within the governance structure.

Crown-Aboriginal paradox

In terms of the second aspect of the paradox, the Crown-Aboriginal government relationship, the Sechelt Indian Band Self-Government Act has been relatively successful in removing the Indian Act and the federal government from the day-to-day activities of the community. In fact, the Sechelt Indian Band Self-Government Act notes that the minister and the Crown can only exercise power in the community where it is authorized in the band's constitution (Canada, Department of Justice 1986). Grants and other agreements between the Crown and the band need to be approved by the band council (Canada, Department of Justice 1986).

Certain federal and provincial acts still apply to the community, however, most notably the Indian Oil and Gas Act, the British Columbia Indian Reserves Mineral Resources Act and the Indian Reserves Minerals Resources Act (Canada, Department of Justice 1986). The Sechelt Indian Band Self-Government Act does not insulate the band from provincial acts and statutes that relate to Aboriginal people. For the most part, however, the Act provides the band with the authority to pursue local community governance more freely from federal interference than in the past.

Westbank First Nation in British Columbia

The current Westbank First Nation government structure emerged from the Westbank First Nation Self-Government Agreement, signed by the Westbank First Nation and the Government of Canada. Both parties initially entered into negotiations in 1998 and reached an agreement in 2003 (Canada, Department of Justice 2003). The Westbank First Nation includes five reserves: Mission Creek, Tsinstikeptum Number 9, Tsinstikeptum Number 10, Medicine Hill, and Medicine Creek (Canada, Department of Justice 2003).

Aboriginal government-band member paradox

In general, the Westbank First Nation constitution seems to provide an improved governance regime for members to hold their government officials accountable (Westbank First Nation 2007). The band has a governing council, consisting of four councillors and a chief, who are elected every three years. Westbank also has a five-member advisory council for non-member residents of the region who have an interest in Westbank lands. Each of the five members is elected from a special district. The advisory council is intended to advise the band's government on best practices and policy for non-members and, as such, it does not have a formal role in community governance. However, the advisory council has played a role in the past by facilitating agreements for services with neighbouring jurisdictions, such as in 2007-08 when advisory council members signed an agreement with the Okanagan Regional Library Board to provide access to library services for members and non-members (Westbank First Nation 2008). Prior to every election or referendum, an electoral officer, who is responsible for administering the election, and an arbitrator, who is responsible for hearing electoral complaints, are appointed (Westbank First Nation 2007).

Notice of council meetings and their agendas are supposed to be posted well in advance and made public (Westbank First Nation 2007). Any band member elector may, by written request and at least two working days before a council meeting, ask that a matter be placed on the agenda of that meeting. A member of council can be removed from office if a) he or she has violated the constitution or b) he or she has breached their oath of office. Proceedings to remove a council member are commenced once a petition signed by at least twenty per cent of the eligible electors is filed with the arbitrator (Westbank First Nation 2007).

The Westbank constitution also calls for general and special membership meetings to be held regularly and, as required, at the request of members (Westbank First Nation 2007). A general membership meeting, for instance, should be held at least once every three months, whereas a special membership meeting should be held when a) it is called by resolution; b) it is called by request set out in a petition signed by 40 electors; or c) as required under the constitution. Council meetings are open to members only. Non-members may attend all or part of a meeting when permitted by a vote of council members present. Any member may, at any time, ask to view the minutes of council meetings.

Westbank laws come from two sources: 1) a resolution initiated by council itself or 2) a petition presented to council and signed by 40 electors (Westbank First Nation 2007). Upon initiation of a proposed law, council provides notice to the membership of the subject matter and the general nature of the provisions to be included in the proposed law. It also must solicit written input from band members. Before any taxation measure can be imposed, it must be approved by a referendum.

The Westbank constitution also addresses potential conflicts of interest (Westbank First Nation 2007). Any member of council who believes that he or she has a conflict of interest must disclose it and cannot influence the decision or vote. The public is free to question council members about any potential conflicts of interest at membership meetings. Council members are also banned from using property owned by the band for personal or business purposes, and accepting gifts in kind, and are forbidden from taking personal advantage of information received as a councillor. At the end of the fiscal year, a report must be made public that lists the yearly amount of remuneration paid to each council member, including any reimbursement of expenses and any benefits, such as medical or dental services.

The budget must be presented to membership every year and must take into consideration the input of members (Westbank First Nation 2007). Where a deficit is proposed in the budget, the electors present at the membership meeting vote by secret ballot on whether to approve the proposed deficit. If the membership rejects the deficit, the budget will be revised to eliminate the deficit. The membership must also be consulted whenever council wants to authorize a capital expenditure over $500,000. A special membership meeting must be scheduled with twenty days notice and the membership can either accept or reject the expenditure by secret ballot. An auditor must also be appointed to examine the financial state of the Band every year (Westbank First Nation 2007).

Westbank's governance regime also seems to excel in providing mechanisms for community participation. Communication of meetings and referenda are frequent, generally appearing in the monthly community newsletter. The community newsletter is distributed to all members and contains information about council proceedings, community events, special meetings, referenda, the formation of community working groups, referendum cancellations, budget information sessions, nomination meetings and the annual general meeting (Westbank First Nation 2010b, 2010c, 2010d, 2010e, 2011a, 2011b).

Westbank submits issues to its membership through referenda quite frequently. In fact, from April 2010 to April 2011, Westbank held four referenda:

--Artis Development Project Land Lease: 8 July 2010 (Westbank First Nation 2010f);

--Leasing of Land to Westbank Casino Corp.: 20 January 2011 (Westbank First Nation 2010b);

--Shopping Centre Land Lease: 24 February 2011 (Westbank First Nation 2011a); and

--Casino and Gaming: 31 March 2011 (Westbank First Nation 2011b).

The notices and results of these referenda are posted in the community newsletter.

While many of these participation mechanisms, such as the advisory councils and open budget meetings, are formal, this commitment to participation extends to other, informal areas of community life. For example, in 2007-08 Westbank undertook the development of a community planning and vision document (Westbank First Nation 2008). Input into the creation of this document was garnered from community members through open, public meetings, and also through door-to-door surveys, in which residents were polled about aspects of community life, governance, health and economic development (Westbank First Nation 2008). Another example is Westbank's central community plan. In 2006, Westbank engaged in a community planning process to create a central planning and vision document (Westbank First Nation 2010g). Between 2006 and 2010, the band held close to thirty membership meetings to gather community input (Westbank First Nation 2010g).

In short, Westbank's accountability and transparency structure between its government and band members is substantial. In addition to conventional mechanisms like elections, publication of laws, transparency in remuneration, and access to information, Westbank also facilitates a high level of community participation. Non-members are included in governance processes through advisory councils. General and special meetings allow public participation throughout the governance process. For example, laws can be voted on at special meetings and any tax increases must be put to a referendum. There are also non-electoral sanctions available within the governance structure, whereby a member of council can be removed if they have violated the constitution or breached their oath of office. Salaries of members of councils are made public, along with their expenses and the medical and dental benefits they may have received throughout the year.

Crown-Aboriginal paradox

In general, Westbank's self-government agreement provides it with considerable flexibility and autonomy from the federal government. The Westbank First Nation Self-Government Act (S.C. 2004, c. 17) states that future interactions between Westbank and the federal government should occur on a government-to-government basis (Canada, Department of Justice 2003). The Act also states very clearly that federal legislation, such as the Indian Act, the First Nations Land Management Act and the Indian Oil and Gas Act no longer applies (Canada, Department of Justice 2003). The rights of Aboriginal peoples within Westbank territory, however, are still protected by federal laws such as Section 35 ("Rights of Aboriginal People in Canada") of the Constitution Act, 1982 (Canada, Department of Justice 2003). Additionally, Westbank Aboriginal people are still eligible to participate in and receive benefits from existing and future federal legislation that concerns Aboriginal people, if Westbank First Nation does not assume responsibility for providing such benefits itself (Canada, Department of Justice 2003). The federal government does have some requirements that Westbank must meet, such as submitting all laws in writing to the government after they have been enacted, but such regulations do not seem to impede governance in the community. Aboriginal people living within Westbank lands retain their rights under the Constitution Act, 1982. They are also still affected by federal legislation concerning Aboriginal peoples in general, but Westbank is responsible for providing any benefits or distributions from such legislation, if they chose to undertake that responsibility. In many ways, Westbank is less prone to government intrusion than are non-Aboriginal municipalities.

Although formal federal constraints on Westbank governance are quite low, the federal government still exercises considerable informal control through financial transfers and supports to the band. Some of this support is voluntary. For example, in 2007-08, the federal government provided funds for a surveying project in which the band gathered community input to develop a planning and vision document for the future (Westbank First Nation 2008; see also Westbank First Nation 2011c). Most federal support is not voluntary, however, and thus the federal government continues to play a significant role in the financial life of Westbank. For example, in Westbank's 2007-08 budget, the Department of Indian Affairs provided nearly $6 million in transfers (Westbank First Nation 2008). This amount, combined with nearly $800,000 from Health Canada and another $585,738 in other government grants, means that the federal government is responsible for approximately one-third of the $23 million Westbank budget, which is approximately as much as the band receives in property, commercial and sales tax revenue (Westbank First Nation 2008; Westbank First Nation 2010a). Therefore, although Westbank enjoys significant autonomy from the federal government, it remains reliant on the federal government for a significant part of its budget, which may constrain Westbank's ability to govern freely.

Nunatsiavut in Labrador

Nunatsiavut is a regional Inuit government established through the provisions of the Labrador Inuit Land Claims Agreement (Canada, Department of Justice 2005). Originally, the Labrador Inuit were left out of the Terms of Union between Newfoundland and Canada (Hanrahan 2003). As such, the Indian Act was not applied in Newfoundland, meaning that the province's Aboriginal peoples were ineligible for a range of programs and services that were traditionally provided to other Aboriginal groups across the country. Despite this obstacle, the Labrador Inuit eventually achieved self-government. They began this journey towards self-government by filing a statement of claim with the Government of Canada in the late 1970s (Canada, Department of Justice 2005). Land claims negotiations continued for nearly thirty years until the passage of Bill C-56, which put into effect the Labrador Inuit Land Claims Agreement and the Labrador Inuit Tax Treatment Agreement. As a result, the Labrador Inuit are now a self-governing Indigenous group in northern Labrador (Canada, Department of Justice 2005).

Aboriginal government-band member paradox

The government structure of Nunatsiavut has several layers. At the bottom are five community governments corresponding to the five Inuit communities in the region. These community governments have traditional municipal powers, such as the ability to impose curfews, create and regulate public libraries, and undertake public works (Canada, Department of Justice 2005). The structure of each community government is composed of an AngajukKak (a mayor or head of council) and Inuit community councillors (Canada, Department of Justice 2005). The AngajukKak is elected at-large, along with councillors who are elected for five-year terms (Canada, Department of Justice 2005). Each Inuit community government has the power to make laws respecting local or municipal matters within their boundaries, such as the establishment of by-laws and local economic development (Canada, Department of Justice 2005). The Nunatsiavut governance structure also includes Inuit community corporations, which exist in urban areas outside of Nunatsiavut where the number of Labrador Inuit ordinarily residing in the area so warrants (Nunatsiavut 2002). The purpose of these community corporations is to liaise with the Nunatsiavut Assembly on behalf of these members.

At the top, the Nunatsiavut government is composed of the president of Nunatsiavut, the Nunatsiavut executive council, the Nunatsiavut assembly, and any other political, social, cultural and economic institutions established under Inuit law (Nunatsiavut 2002). The president serves as the head of the government and must be voted into office by a majority of Inuit electors for a four-year term. Among other thing, the president chooses the first minister, who must be a member of the Nunatsiavut assembly, who then appoints a cabinet drawn from the assembly to run the various departments of the government. The executive council is held accountable by the Nunatsiavut assembly, who must approve all laws brought forward by the executive council. According to the Labrador Inuit constitution (Nunatsiavut 2002), the Nunatsiavut assembly can have no fewer than 16 members, which includes the ordinary members of the assembly, the AngajukKak (mayor) of each Inuit community government, the chair of each Inuit community corporation, and the president of Nunatsiavut. The ordinary members of the assembly are elected to represent the seven constituencies in the region for four-year terms (Nunatsiavut 2002). As well, among the ordinary members of the assembly are those who represent "Canada" ridings, which are ridings designated to represent Labrador Inuit who live outside of Nunatsiavut (Nunatsiavut, Nunatsiavut Assembly 2007a).

The Nunatsiavut assembly operates like any other legislative assembly, passing legislation introduced by the executive and holding the government accountable. For instance, members may ask the president or the executive council questions about Nunatsiavut business inside the assembly (Nunatsiavut 2002). These questions may range from very routine inquiries, such as Health Labrador's plane trip schedules (Nunatsiavut, Nunatsiavut Assembly 2010a), to very heated debate, such as membership enrollment (Nunatsiavut, Nunatsiavut Assembly 2009). The president of the assembly can be removed with a vote of at least four-fifths support of the assembly members on the grounds of a serious violation of the constitution (Nunatsiavut 2002).

There are similar removal procedures for general members of the assembly as well. In the summer of 2010, for instance, allegations of misconduct were brought against Max Blake, the member for Lake Melville (Nunatsiavut, Nunatsiavut Assembly 2010b). Upon receiving four formal letters of complaint about the conduct of Blake, the assembly created a three-member discipline committee, headed by the assembly speaker (Nunatsiavut, Nunatsiavut Assembly 2010c). The committee held private meetings, assessed the nature of the complaints, and recommended in July 2010 that Blake be removed from office (Nunatsiavut, Nunatsiavut Assembly 2010c, 2010d, 2010e).

In contrast, and much like in the Canadian parliamentary system, removing members of the executive council does not require direct charges or a disciplinary hearing. The Nunatsiavut president, for instance, removed Health and Social Development Minister Keith Russell in February 2011 because of poor job performance (Nunatsiavut, Nunatsiavut Assembly 2011a). Specifics were not given, but according to President Jim Lyall, "Mr. Russell was not fulfilling his duties" (Nunatsiavut, Nunatsiavut Assembly 2011a).

Other accountability measures include the requirement that the president and executive council introduce a yearly budget (Nunatsiavut 2002). A controller must be appointed to oversee the Nunatsiavut Fund, a general revenue source (Nunatsiavut 2002). Any member of the public may request either the quarterly financial statements of Nunatsiavut or the yearly auditor's report (Nunatsiavut 2002). In terms of salaries, any increase must be preceded by public consultations (Nunatsiavut 2002). In February 2010, for instance, the Assembly proposed a three per cent cost of living increase, travel benefits and changes to contribution requirements for assembly member pension plans (Nunatsiavut, Nunatsiavut Assembly 2010f). Details of the proposed changes were distributed through a media release, and constituents were asked to respond with comments about the proposal to the assembly speaker. The changes in remuneration were eventually approved, after nearly a year of public consultations and invited submissions (Nunatsiavut, Nunatsiavut Assembly 2011b).

Residing independently from the government of Nunatsiavut is an Inuit court that adjudicates Inuit customary law, Inuit law and the bylaws of Inuit community governments (Nunatsiavut 2002). The Inuit court also has the responsibility to decide disputes between Inuit government entities, determine the constitutionality of a bill or an amendment to the Labrador Inuit constitution, and to decide whether Nunatsiavut officials have failed to fulfill an obligation under the Inuit constitution or an Inuit law (Nunatsiavut 2002). The court has between one and three judges who are appointed by the president and serve until age 75. A judge can be removed if a judicial council finds him or her to be suffering from some incapacity, a breach of conduct, or a violation of his or her oath of judicial office, or through a resolution supported by at least sixty per cent of the Nunatsiavut assembly members. The court hears cases initiated by any community member or government (Nunatsiavut 2002).

In sum, the Nunatsiavut government has several overlapping accountability mechanisms. The first is the separation of powers between various government branches, with the central government sharing power with community governments and community corporations. Each of these officials is elected, and their roles are clearly spelled out. There are also mechanisms to remove public officials, and there are mandatory salary consultations, improving the transparency of political actors to the community. Additionally, an independent Inuit court adjudicates claims from citizens and constituent governments. Overall, although direct citizen involvement in government activities is fairly limited, the accountability regime inherent in the Nunatsiavut government structure is much improved compared to the Indian Act model.

Crown-Aboriginal paradox

Nunatsiavut is in a similar position to Sechelt and Westbank in that the federal government is effectively removed from daily governance within the region. Also, much like Sechelt and Westbank, the Nunatsivut government does not have the authority to overrule or invalidate any general federal legislation that applies to Aboriginal people, land use or official languages within their territory (Canada, Department of Justice 2005). The Inuit within the region are still able to participate in and benefit from existing or future constitutional rights for Aboriginal people in Canada, which may be applicable to them (Canada, Department of Justice 2005). With that said, however, the Nunatsiavut government must be consulted before any federal program for the Inuit is implemented or distributed within the region (Canada, Department of Justice 2005).

The federal government and the government of Newfoundland and Labrador are active in the financial life of Nunatsiavut. In 2010, the federal government provided funding for a traditional knowledge project (Nunatsiavut 2010a) and extended funding for an Aboriginal employment program called Inuit Pathways until 2015 (Nunatsiavut 2010b), while the provincial government provided funding for new mental health care initiatives and health care equipment (Nunatsiavut 2011). Nunatsiavut receives fiscal transfers from the federal and provincial government, much like Westbank does. For example, in 2010, the Nunatsiavut had a budget of approximately $45 million, of which $30,827,264 came from the Self-Government Fund of the Fiscal Financing Agreement, a resource pool jointly funded by the federal and provincial government (Nunatsiavut 2010a). In 2007-08, the contribution from the federal government was over $28 million, a significant amount of the then nearly $40 million budget (Nunatsiavut, Nunatsiavut Assembly 2007b).

The Self-Government Fund needs to be re-negotiated every five years and requires all three partners--the Government of Canada, the Government of Newfoundland and Labrador and Nunatsiavut--to negotiate a satisfactory agreement (Canada, Indian and Northern Affairs 2011). If the three parties cannot come to an agreement, or if the fund is curtailed based on budget constraints, then the Nunatsiavut government will be severely hampered in its ability to fulfill its obligations to its members.

In short, the federal government is effectively removed from the daily activities of the Nunatsiavut government. As well, much like band members in Sechelt and Westbank, the Inuit within the region retain their rights under existing legislation and future benefits (Canada, Department of Justice 2005). The provincial government of Newfoundland and Labrador is also absent from the day-to-day activities of the Nunatsiavut government. As such, the paradoxical federal presence identified by Shin Imai is, for the most part, not as prevalent in Nunatsiavut.

Analysis

The purpose of this paper was to answer two questions: to what extent do the above cases of institutional design avoid the Indian Act accountability paradox, and to what extent do these alternative designs produce better (or worse) accountability regimes? Our findings indicate that each case varies considerably in terms of avoiding the paradox and creating better accountability regimes. Each of the Aboriginal groups that we studied has a self-government agreement in place, which, for the most part, seems to avoid the Crown-Aboriginal part of Imai's paradox. In all three cases, the Aboriginal government enjoyed more latitude than what Indian Act band councils enjoy. Where we see significant variation is in the accountability relationship between band members and their band governments.

Sechelt, for instance, has a quasi-municipal structure centred on a chief and council. Although there are some accountability mechanisms within the Sechelt governance structure, such as an independent electoral officer and the public nature of council meetings, a significant amount of power still resides with the band council. There are very few access points for community participation, outside of elections; there is no separation of powers to act as a check on chief and council; and there are no sanctions or mechanisms, outside of elections, to remove chief and council for maladministration. As such, Sechelt is a slight improvement over the status quo in First Nations communities that suffer from the accountability paradox.

Westbank provides a more robust accountability regime than Sechelt. In addition to conventional accountability mechanisms, such as elections and independent financial auditing, Westbank also provides non-electoral sanctions and procedures to remove elected officials from office for maladministration. It has a variety of community participation mechanisms for band members to influence government and allow for the necessary scrutiny of government actions, something which Imai suggests is crucial for enhanced accountability regimes on reserves. Westbank, for instance, regularly holds referenda, public meetings and surveys, among other things. All of these mechanisms provide band members with a range of accountability mechanisms beyond those to which Sechelt members have access.

Similarly, Nunatsiavut has a robust accountability structure that avoids the accountability paradox. Much like Westbank and Sechelt, Nunatsiavut has several conventional accountability mechanisms in place, such as open elections and financial auditing. Unlike the other two communities, however, Nunatsiavut has a clear separation of powers and an independent Inuit court which acts as a third-party adjudicator in Nunatsiavut. This is something that Imai suggests is crucial for improved Aboriginal accountability in Canada. Nunatsiavut also provides members with avenues for community participation, such as salary consultations, although these mechanisms are not as numerous as they are in Westbank.

How do these cases and findings fit with Imai's criteria for improved accountability and good governance on reserves? In terms of community participation, Westbank and Nunatsiavut provide numerous avenues for participation, while Sechelt does not. In terms of an independent adjudicator, only Nunatsiavut has an independent court established to adjudicate legal actions brought by citizens and constituent governments. Finally, in terms of respecting core principles, our findings are inconclusive. In some instances, language provisions and the type of inclusionary principles in Westbank's model of community participation might reflect the core principles of the community. On the other hand, many of the enabling documents that create these governments mandate the type of accountability mechanisms they must utilize. As such, more research is needed to determine the extent to which Indigenous community values are reflected in these enabling documents and constitutions.

Overall, Sechelt is a slight improvement over the Indian Act status quo, in that it has a self-government agreement in place that removes the federal government from its day-to-day governance activities, but it lacks a fully-developed accountability regime that would bring more transparency to the chief and council. Westbank presents a better model if one wanted to avoid both sides of the paradox presented by Shin Imai. Westbank has numerous formal avenues for community participation, denying the chief and council absolute authority in the community, thereby overcoming both sides of Shin Imai's paradox. Finally, Nunatsiavut avoids the paradox in a different way than Westbank by stressing the separation of powers between different government branches and levels of government, and emphasizing the role of the Inuit court over community participation mechanisms.

Conclusion

This paper attempted to analyze Shin Imai's assertion that Indigenous groups in Canada are faced with an accountability paradox that gives too much power to the federal government to intervene in band affairs, and too little power to band members to hold their band officials accountable for their actions. At the core of this assertion is that institutional design matters for producing and avoiding this paradox. To investigate these claims, we focused on three cases: the Sechelt Indian Band and the Westbank First Nation in British Columbia, and Nunatsiavut in Labrador. Our findings suggest that considerable variation exists within these communities but that each of them represents an improvement over the regime imposed by the Indian Act. Therefore, institutional design does matter for accountability in Indigenous communities.

Future research is needed on several fronts. First, our analysis is based mostly on documentary evidence and therefore our empirical claims are circumscribed by a lack of confirmatory in-community assessments. Future research might rectify this limitation by employing community-based strategies to verify our claims empirically. Second, it is unclear from our research to what extent Aboriginal governments are constrained by their fiscal relationship with the Crown. Although some research on this topic exists (Hull 2001; Dacks 2004; Shepherd 2010), more systematic and comparative empirical research is needed to uncover how different financial arrangements affect Indigenous self-government in Canada. Rob Shepherd (2006), for instance, has argued that previous federal-Aboriginal funding arrangements tended to constrain significantly the ability of First Nations to provide programs and services. Our research was unable to confirm his conclusions and therefore more empirical work is needed to generate more robust claims about these fiscal relationships.

Third, more empirical research is needed to determine to what extent institutions that reflect core principles in fact lead to better accountability outcomes. Finally, students of Aboriginal politics might profitably focus on discovering what factors influence variation in institutional design relating to self-government and accountability. What explains the institutional designs chosen by the Aboriginal groups studied in this paper? Are these institutions a reflection of community values or values imposed by the Canadian institutional vehicles through which they were achieved?

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Note

(1) In total, 201 documents were reviewed for this study: 53 in Westbank, 51 in Sechelt and 97 in Nunatsiavut. In addition we used government documents and reports where necessary. This information, along with the documents from Aboriginal communities cited in this study, has been included in the bibliography.

Christopher Alcantara is assistant professor, Department of Political Science, Wilfrid Laurier University. Zac Spicer is a doctoral candidate in political science at the University of Western Ontario. Rob Leone holds a PhD in Comparative Public Policy from McMaster University and is the MPP for Cambridge in the Ontario Legislature. The authors wish to thank the Journal's anonymous reviewers for their helpful comments on an earlier version of this manuscript. This research was supported by an IPAC Study Team Grant.