Political History

The History of Kanehsatake and its people and the laws the affect us

Understanding Governance

In order to understand the situation in Kanesatake it is important to understand the following laws.

2024.03.04.Understandinggovernance.2

Indian Act

https://www.sac-isc.gc.ca/eng/1100100021860/1614352707074

01-first-nations-governance-handbook

SUMMARY REVIEW: 2001 Kanesatake L

and Governance Code

Purpose & Foundation The 2001 Kanesatake Land Governance Code (LGC) is a foundational document created to operationalize governance over Kanesatake Mohawk lands, aligning with the Kanesatake Interim Land Base Governance Act (KILGA). It was built on principles of transparency, accountability, and community control over land matters, with references to Mohawk customs and the Great Law.

Strengths

  1. Conflict of Interest Provisions (Sections 6–13)
    • Clear definition and mandatory disclosure of financial/personal interests.
    • Applies to Council and program directors.
  2. Financial Accountability (Sections 14–23)
    • Establishes required financial record-keeping, auditing, and public access.
    • Limits borrowing power unless approved by majority vote at a community meeting.
  3. Legislative Process & Transparency (Sections 24–31)
    • Sets requirements for publishing laws, community approval processes, and public notification.
  4. Environmental Protection (Sections 32–34)
    • Public consultation required for projects that may impact land or involve toxic substances.
    • Requires environmental assessments and transparency.
  5. Amendment Protocol (Section 35)
    • Amendments must follow the same community approval process, including secret ballot.

Areas of Concern / Mismanagement-Linked Weaknesses

  1. Ambiguity in Roles and Enforcement
    • The Code does not clearly define enforcement bodies (e.g., who ensures compliance with land use decisions, ethics violations, etc.).
    • There is no reference to an independent ethics commission or regulatory tribunal.
  2. No Mechanism for Leadership Accountability
    • While financial and conflict disclosures are required, there is no consequence defined for non-compliance.
    • The Code does not include procedures for sanctions, suspensions, or removals of elected officials for misconduct.
  3. Opaque Law-Making Timeline
    • Section 26 requires only a 21-day notice for laws. This may be insufficient time for meaningful review and feedback.
  4. Public Consultation Model Needs Modernizing
    • Relies on in-person sessions, with no provision for digital notifications, mail-in participation, or hybrid models — especially important with community division and limited access.
  5. Lack of Strategic Alignment with Great Law or UNDRIP
    • While rooted in tradition, the Code lacks explicit language aligning with UNDRIP articles or formal recognition of traditional governance principles.
  6. Undefined Appeals Process
    • There is no clear framework for appealing decisions made under the Code (e.g., permits, land use approvals, disqualifications).
  7. Inconsistencies with Current Realities
    • Does not reference the current chaos in governance (e.g., dual councils, overlapping authorities, organized crime influence).
    • Fails to explicitly prevent abuse of permitting powers or land grab tactics.

Recommendations for Improvement

  1. Create an Independent Ethics and Oversight Commission
    • Empower it to investigate conflict breaches, rule on ineligibility, and review community complaints.
  2. Add Enforcement and Sanction Clauses
    • Define procedures for reprimands, suspensions, and disqualifications.
  3. Strengthen Public Participation Mechanisms
    • Require both online and physical distribution of notices.
    • Add a 45–60-day minimum for review of substantive laws.
  4. Establish Clear Appeals Process
    • Insert a section specifying procedures, timelines, and bodies responsible for hearing appeals.
  5. Explicitly Integrate Traditional Law and UNDRIP
    • Use language from the Great Law of Peace and UNDRIP to reinforce sovereignty and human rights protections.
  6. Insert Safeguards Against Land Corruption
    • Require full land use audits before major approvals.
    • Prohibit any land transactions without multiple Council and community approvals.
  7. Create a Leadership Code of Conduct with Enforceable Standards
    • Include mandatory training and a public integrity pledge.
  8. Modernize the Amendment Process
    • Allow the community to petition for Code amendments.
    • Use community forums and surveys to propose updates.

Conclusion The 2001 Land Governance Code provided a good-faith foundation for self-determination and community-based law-making. However, in light of current governance breakdowns, community division, and external threats, the Code must evolve. Strengthening enforcement, transparency, and community trust is not only possible — it is essential.

Next step: Draft proposed amendments to the Land Code under Section 35 for community consideration.

Please see the attached document for more information: summaryreveiwlandcode

SUMMARY REVIEW: Kanesatake Interim Land Base Governance Act (KILGA)

Overview The Kanesatake Interim Land Base Governance Act (S.C. 2001, c. 8) gives legislative recognition to an agreement between the Mohawks of Kanesatake and Canada regarding the governance of specific lands (not classified as reserve lands under the Indian Act, but still recognized as “lands reserved for the Indians” under s.91(24) of the Constitution Act, 1867). This legislation represents a form of sectoral self-government specific to land use, environmental protection, and local law-making.

Key Provisions

  1. Legal Framework
    • The Mohawk Council of Kanesatake acts as the governing body (s. 6).
    • Jurisdiction granted to pass laws on land use, environmental standards, zoning, construction, traffic, health, and local services (s. 7).
    • Authority to prosecute, appoint justices of the peace (with federal agreement), and create penalties for by-law violations (ss. 15-16).
  2. Territory and Legal Status
    • Lands defined in the Schedule (e.g. Kanesatake Indian Lands No. 16, Assenenson) (s. 2, Schedule).
    • Lands are not Indian Act “reserves” but still fall under federal jurisdiction as s.91(24) lands (s. 3).
  3. Governance Requirements
    • Must adopt a Land Governance Code before exercising full law-making powers (s. 9).
    • Must create a Land Use Plan before approving commercial/industrial projects with environmental impact (s. 10).
    • Environmental laws must meet or exceed provincial standards (s. 11).
  4. Municipal & Federal Relationships
    • Harmonization agreements required with Oka for overlapping zones (s. 13).
    • In case of conflict: federal law prevails over Kanesatake law, which in turn prevails over provincial/municipal (s. 17).
  5. Transparency & Accessibility
    • Certified copies of key agreements and laws must be available in community and government offices (ss. 22–23).

Where Amendments Are Allowed

  • Section 9(2)(e) of the Act requires the Land Governance Code to include a “procedure to amend the code.”
  • Section 19(1) allows the Governor in Council to add lands to the Schedule if both parties (Kanesatake + Canada) agree.
  • Laws enacted under this Act are not subject to the Statutory Instruments Act, providing flexibility in legislative style (ss. 7(4), 9(3)).

Recommendations for Amendments or Improvements

  1. Codify Consultation Process in the Land Governance Code
    • Ensure community consent and transparency mechanisms are explicit, not assumed.
  2. Create a Standing Harmonization Committee
    • Establish a permanent intergovernmental committee with the Municipality of Oka to proactively handle zoning and land use disputes.
  3. Modernize Environmental Protection Provisions
    • Consider including environmental assessment obligations even though it’s currently excluded under s. 11(2).
  4. Define “Residency” More Clearly
    • As the code governs land use, clarify who qualifies as a “resident” (see s. 7(1)(e)) to prevent disputes over occupancy and jurisdiction.
  5. Amend Penalty Provisions
    • Update maximum penalties in line with changes to the Criminal Code (s. 7(2) references s.787(1) Criminal Code, which could evolve).
  6. Expand Scope Over Doncaster Reserve
    • Initiate negotiation with Kahnawake and Canada to activate jurisdiction under s. 8 for Doncaster lands.
  7. Public Registry of Laws and Decisions
    • Digitally publish all laws, amendments, and decisions to increase transparency and legal certainty.
  8. Capacity Building Clause
    • Consider amending the Land Governance Code to require continuous legal training and planning workshops for Council.

Conclusion KILGA provides a powerful framework for localized governance, grounded in community values but legally recognized by Canada. However, it needs continual refinement to remain relevant. The Council should use the flexibility provided under s. 9(2)(e) to amend the Land Governance Code and evolve the framework to meet today’s challenges.

Next step: Draft proposed language for amending the Code under s. 9 and document community consultation protocols.

Please see atacched document for more informaiton about KILGA: KILGA

SUMMARY REVIEW: Kanehsatà:ke 2015 Custom Electoral Code vs. Indian Act Election Regulations

  1. Community Sovereignty & Governance
  • Custom Code is grounded in inherent rights and UNDRIP principles. Developed via community consultation and ratified through referendum.
  • Indian Act elections are federally legislated, uniform, and lack local cultural context.

Edge: Custom Code

  1. Voter Eligibility
  • Both require 18+ and membership status.
  • Indian Act includes a legal definition of residency.

Edge: Tie

  1. Candidate Eligibility
  • Custom Code requires 3 years residency (J0N 1E0), Mohawk ancestry, and prior Council experience for Grand Chief.
  • Indian Act has broader, less restrictive eligibility.

Edge: Custom Code (with note on potential over-restriction)

  1. Governance Structure
  • Custom Code: 1 Grand Chief + 6 Chiefs, with provisions for ethics, non-confidence (pending), and community reporting.
  • Indian Act: standard Council structure, fewer ethics provisions.

Edge: Custom Code

  1. Election Procedures
  • Indian Act is highly detailed in voting procedure and mail-in ballot administration.
  • Custom Code prioritizes ethical campaigning and includes internal Appeal Board.

Edge: Custom Code for self-determination, Indian Act for admin detail.

AREAS FOR IMPROVEMENT IN THE CUSTOM CODE

  1. Finalize the Ethics Commission and Non-Confidence Vote process.
  2. Enhance mail-in voting procedures (security, timeline, ID checks).
  3. Consider transparency measures: candidate disclosures.
  4. Clarify residency requirements (define “ordinary residence”).
  5. Revisit Grand Chief eligibility (is a prior term too restrictive?).

SHOULD WE USE THE INDIAN ACT INSTEAD?

  • Only if the community formally decides to relinquish self-governance over elections.
  • This requires referendum or resolution.

RECOMMENDATION

  • Retain the Custom Code.
  • Amend and improve as needed.
  • Ratify changes via community vote (min. 12 weeks before next election).

 

 

NEXT STEPS

  • Attach proposed amendments.
  • Attach draft Vote of Non-Confidence policy.

Prepared for community review and leadership consideration.

ANNEX I: Proposed Amendments to the 2015 Custom Electoral Code (Draft for Discussion)

  1. Clarify Residency Requirement
    Amend Article 5.1.1 to define “ordinary residence” using language similar to Indian Act Regulations (i.e., where the person usually sleeps, intends to return, etc.).
  2. Mail-In Voting Process Enhancements
    Amend Article 12.36–12.39 to specify clearer steps:
    • Required photo ID or declaration form signed by a witness.
    • Ballot package deadlines and mailing instructions.
    • Envelopes coded to ensure ballot secrecy and integrity.
  3. Grand Chief Eligibility Flexibility
    Amend Article 5.1.5 to allow alternate qualifications (e.g., demonstrated leadership or committee chair experience), not just a full Council term.
  4. Mandatory Candidate Disclosure
    New clause under Article 5.0 or 11.0: All candidates must disclose any criminal convictions (even if pardoned), major financial interests with MCK, and public service record.
  5. Finalize Vote of Non-Confidence Process
    Add Article 17.2: Refer to new annexed Non-Confidence Policy (see Annex II).
  6. Activate and Define Ethics Commission
    Under Article 9.7 and Article 13.0: Define the structure, appointment process, and scope of the Ethics Commission.
  7. Appeal Board Composition Transparency
    Amend Article 13.0: Include a clause requiring names of selected Appeal Board members be posted in advance of the election.

 

 

ANNEX II: Draft Policy for Vote of Non-Confidence (Discussion Draft)

Purpose:
To provide a formal process for community members to initiate a vote of non-confidence to remove a sitting Grand Chief or Council Chief(s) in cases of misconduct, neglect of duty, or loss of community trust.

Triggering a Vote:

  • A petition signed by at least 20% of eligible electors.
  • Or a unanimous recommendation by the Ethics Commission.

Grounds for Consideration:

  • Criminal charges or convictions.
  • Abuse of power or corruption.
  • Failure to attend 3 or more Council/Public meetings without valid reason.
  • Serious breach of MCK’s Code of Ethics.
  • Gross negligence or dereliction of duty.

Process:

  1. Submission to the Chief Electoral Officer with evidence.
  2. Preliminary Review by Ethics Commission within 15 days.
  3. Community Meeting held to present issue.
  4. Secret Ballot Vote within 30 days (same procedures as a by-election).
  5. Simple majority of participating voters required for removal.

Outcome:

  • If passed, the position is declared vacant, and a by-election is triggered.
  • The removed member may not run in the following election cycle.

This policy to be formally adopted via amendment and ratified by community vote.

For more information please view the attached documents

2015-Custom-Electoral-Code-English

IndianAct.election.regs