Right to freedom of speech among First Nations was unclear — until now

The B.C. Civil Liberties Association has written an unprecedented letter, arguing that the Charter of Rights and Freedoms applies to First Nations people and those on reserve — something that was unclear before now.

This comes after a year of Kwantlen First Nation members fighting for their charter right to free speech, specifically to speak critically of the band's unelected chief and councillors. 

"It is absolutely groundbreaking," says Robert Jago, a member of the Kwantlen band, near Langley, B.C.

Jago brought the concerns to the BCCLA, saying band members were restricted by the band's leadership in speaking out about the First Nation in public or on social media.

"Since the Kwantlen First Nation operates under a custom electoral system under the Indian Act, it is subject to Canada's Charter of Rights and Freedoms," according to BCCLA articling student Veronica Martisius, who drafted the letter to the chief and council of the Kwantlen First Nation. 

• Reconcile This: Free speech in First Nations communities

Indigenous people's charter rights are determined on a case-by-case basis, since Section 25 of the charter states that certain rights and freedoms "shall not be construed so as to abrogate or derogate any Aboriginal, treaty or other rights and freedoms that pertain to Aboriginal peoples." 

While the BCCLA letter is not legally binding, it lists precedent-setting legal cases where First Nations people's charter right to freedom of expression was confirmed.

Jago says BCCLA's support can compel other civil liberties groups to step in "and, with their influence, force bands to make changes or help win the support of lawyers to take on these cases pro bono."

Concerns over non-elected chief and council

Jago is part of the Kwantlen reform committee that petitioned the band in March 2019 to resign and form a new government that would choose its chief and councillors through an election. 

The band currently operates under an unelected hereditary government. The former chief, the late Joe Gabriel, appointed his daughter Marilyn Gabriel to chief, a role she has held for 27 years.

While some band members are content with the leadership, others, like Jago, say an election is needed so more band members have a voice in band decisions.

In mid-March of 2019, the band council said it was willing to work with members to develop a new governance code and launched a series of governance consultations with an independent meditator.  

However, Jago says during the process of collecting signatures and through consultations, band members who set the petition in motion reported incidents of harassment, intimidation and threats of violence.

The CBC has seen one Facebook comment on a post explaining the petition where a band member was intimidating and threatening toward Jago.

Band denies allegations but accepts charter rights

A striking example of the band's attempt to limit freedom of expression was during consultations this July.

The band issued a document obtained by the CBC called the Safe Spaces Agreement, which explained that communication about the consultations or the governing document were not to be discussed with anyone outside of the band.

"Which is equivalent to banning Canadians from talking about the content of the constitution to a foreigner," said Jago.

In a statement to the CBC, Kwantlen Band Councillor Tumia Knott said: "The Safe Spaces Agreement was introduced but not implemented ... to respond to concerns raised by several Kwantlen members about wishing dialogue in our governance sessions to remain within the community and not be shared publicly and on social media."

With regards to other allegations about limiting free speech with threats, violence and harassment, Knott said, "we disagree strongly with these allegations."

However, Knott said the band supported the findings of the BCCLA "that acknowledge the applicability of the charter right to freedom of expression."

Federal government's hands-off approach  

Jago says that when his group reached out to Indigenous Services Canada about concerns with his band's current governing structure and the limitations of freedom of expression, he never heard back.

In a statement, a spokesperson for Indigenous Services Canada told the CBC that it was not able to confirm if the department received Jago's petition.

However, the emailed statement said: "on charter rights, such as freedom of expression, allegations or complaints can be made directly to the department's assessment and investigation services branch (AISB) at headquarters, to a regional office or to the minister's office."

As for Kwantlen First Nation members' concerns over a lack of democratic freedoms, such as elections, Indigenous affairs says it won't get involved. 

"Given the electoral independence of custom code electoral systems, Indigenous Services Canada (ISC) does not play any role in establishing procedures or in playing an oversight function in elections for First Nations operating under a custom code," said an ISC statement.

It added that "the minister or indigenous services canada has no role in receiving, investigating and deciding on election appeals for bands operating under a custom code."

Nicole Hajash, an elections officer for First Nations communities with the group One Feather, said that a hands-off approach by the federal government means that bands are often forced to take their concerns to Federal Court, often with costs in the hundreds of thousands of dollars. 

As for Jago, he says Federal Court is currently not in the cards but his group may look at alternatives if mediation fails.