Abstract

In Corbiere v. Canada, the Supreme Court of Canada ruled that off-reserve members have the right to vote in band elections. Section 77(1) of the Indian Act, which restricted voting to on-reserve members, was found inconsistent with section 15(1) of the Canadian Charter of Rights and Freedoms because “Aboriginality-residence” was analogous to enumerated grounds of discrimination and because off-reserve band members have a direct interest in council decisions. Consequently, the entire system must be overhauled. The Supreme Court left an eighteen-month window for good faith consultations to provide a collaborative remedy. But, contrary to good faith and to the principles of landmark cases like Sparrow and Delgamuukw, the government proposed a First Nations Governance Act that speaks of empowerment and decentralization, but which flees from responsibility and liabilities. This governance initiative—Ottawa's purported second phase of Corbiere consultations—makes only cosmetic framework changes that underhandedly alter its fiduciary obligations.