The Indian Act: Can it be abolished? - LawNow Magazine

The Indian Act: Can it be abolished?

photo of a dreamcatcherTwo simple observations are made so often about the Indian Act as to amount to clichés: That the 1876 Act is still with us, and that it should be “abolished.” The first of these is technically false; the 1876 Act was repealed in 1951, and replaced with the Act we have today, though it has been amended countless times. The Act of today is not Macdonald’s Indian Act, any more than, say, the original Criminal Code of 1893 is still in force. The more interesting question is, to what extent does the Act of today resemble that of 1876 (the implication of critics being that there has been little if any change since 1876)? The question of abolition, known to drafters as “repeal,” is even more complex in its ramifications.

A recent example is from an article by Michael Den Tandt, a national columnist with Postmedia papers, writing on Sir John A. Macdonald: “The bigotry in Macdonald’s speeches is reflected in the 1876 Indian Act, in many places almost word for word. And the Indian Act remains the law of the land in 2015. Though no political party claims to like it, none has made an urgent matter of its abolition. How can that be, if we’re as evolved as we like to imagine?”

The Act of today is not Macdonald’s Indian Act, any more than, say, the original Criminal Code of 1893 is still in force. In 1951, a complete redrafting of the Indian Act was undertaken, the 1876 Act fully repealed and replaced by a statute thoroughly modernized by the standards of the day.

A principal change was to give structure to band governance. While the basic structure of band and reserve were carried forward, a municipal model of governance was adopted: each band would henceforth have a council consisting of one (and only one) chief, and one councillor for every one hundred members, up to 12 councillors, unless the Minister “declared” otherwise “for the good government of the band”. Tenure was two years. The term “Indian” has fallen into disuse in the last couple of decades, in favour of “First Nation,” giving the Indian Act an even more archaic flavour. The reserve could, by vote, have up to six ward-like “electoral sections.” Meeting regulations were made. Councils had powers to make certain by-laws on the use of the reserve, subject to ministerial disallowance; some bands, with approval, could tax, budget and spend. There was an escape hatch: bands could choose to select a chief and council “according to the custom of the band.” With the resurgence in recent years among First Nations of pride in culture and language (LawNow, Jan/Feb 2011), custom selection has become more popular. Opt-in legislation, the First Nations Elections Act, came into force this April. It will allow First Nations that choose it considerably more scope, including four-year terms.

The term “Indian” has fallen into disuse in the last couple of decades, in favour of “First Nation,” giving the Indian Act an even more archaic flavour. When the landmark recognition given “existing aboriginal and treaty rights” in the Constitution Act, 1982 was drafted, “Indian” was the term of choice. By 1999, when 57 bands agreed to establish their own land codes and self-management regimes, the effecting statute was entitled the First Nations Land Management Act, and “First Nations” is now consistent in official usage. The trend is toward independence of management of their own affairs by First Nations, though the road is by no means smooth: witness the rejection by many chiefs of the 2014 education agreement worked out between the Assembly of First Nations and the government, leading to the resignation of the National Chief.

Driven by s. 15 of the Charter, the equality provision, the rule that women but not men lost Indian status by marrying a non-Indian was abolished in 1985. What came to be famously known as Bill C-31 retroactively restored thousands of women to the rolls. Whatever its limitations, the Indian Act is hardly that of 1876.

What is meant by the call for abolition of the Act? What would be the effect of simple repeal, with no replacement legislation – which is what seems to be glibly suggested by some calls for abolition? With the Act repealed, Indians would be in anarchic limbo. Repeal of the Act would not alter the Constitution: They would not simply become citizens of a province or territory, because they would still be “Indians” under s. 91(24) of the Constitution Act. 1867, a federal power – “Indians, and Lands reserved for the Indians” – so excluded from provincial jurisdiction in many respects, but without federal legislation. Similarly, with reserves abolished by repeal of the Act, the legal morass would employ platoons of lawyers and judges for decades.

As with most social issues, simple remedies do not exist. There is no call for repeal from First Nations or their organizations, which may account for the lack of political appetite for change, even with a plan. What is meant by the call for abolition of the Act? What would be the effect of simple repeal, with no replacement legislation – which is what seems to be glibly suggested by some calls for abolition? With the Act repealed, Indians would be in anarchic limbo.  Whenever provincial assumption of some program is suggested, First Nation opposition is vehement; special federal status is not to be tampered with. Among the 29 policy topics on the Assembly of First Nations website, “Indian Act” is nowhere to be found. Themes of self-government, program funding, regional and local control of education, and recognition of Aboriginal and treaty rights dominate. The 1996 Royal Commission on Aboriginal Peoples rejected “tinkering with the Indian Act”; instead, “What we propose is fundamental, sweeping and perhaps disturbing – but also exciting, liberating, ripe with possibilities.” Recommendations included recognition of an Aboriginal order of government, with an advisory Aboriginal parliament, but no “tinkering.”

There is an almost 50-year history of nibbling at the edges. The publication in 1967 of the comprehensive Hawthorn Report on Indian economic, social, and educational needs led to a period of consultation on its recommendations. Pierre Trudeau’s first government then came to power; a detailed plan for complete repeal of the Act replaced consultation. Trudeau saw the constitutional separation of Indians as a precedent for Quebec separation, and held that a state should not have treaties with its own people. In 1969, Minister of Indian Affairs Jean Chretien tabled a “Statement of the Government of Canada on Indian Policy” that would have not only repealed the Indian Act but eventually abolished Indian constitutional status: “Legislative and constitutional bases of discrimination must be removed.” This document set out a detailed road map by which Indians would become indistinguishable from other Canadian citizens; “Indian” would effectively disappear from the legal lexicon. Education and health would become provincial responsibilities, though funds were promised to ease the way. Parliament should “take such legislative steps as may be necessary to enable Indians to control Indian lands and to acquire title to them.” The bar to mortgage or sale is a handicap, and would be gone. Treaties would be “equitably ended.” Land claims, on the other hand, “are so general and undefined it is not realistic to think of them as specific claims capable of remedy.” Legal assimilation would be complete.

The Indian response was sharp. They were not just citizens; they were “Citizens Plus,” the title (borrowed from Hawthorn) of what came to be known as the 1970 Red Paper. The “plus” was not to be lost. As citizens of Canada, Indian people had access to the same services as other Canadians, but they also had treaty rights and legislative privileges, including certain tax exemptions. “Only Aboriginals and Aboriginal organizations should be given the resources and responsibility to determine their own priorities and future development lines.” Finally, “The Indian Act should be reviewed, but not repealed. It should only be reviewed when treaty rights issues are settled and if there is a consensus among Aboriginal peoples on such changes regarding their historical and legal rights.”

The plan was abandoned. Following the Supreme Court split decision in Calder in 1973, on whether the Aboriginal title to Nisga’a territory in B.C. had been extinguished, Trudeau accepted that land claims had merit and had to be dealt with. Thus began the modern era of First Nation – government relations. Broad consultation on revising the Act occupied the mid-70s without either First Nations consensus or government agreement. Consultation respecting lands and resources, and issues of title now dominate the landscape. On the legislative side, “sectoral” statutes with focused targets, such as the First Nations Land Management Act, occupy both Aboriginal and government policy makers.

Several broad legislative proposals since 1990 have been rejected as too limited. Only one –  a private member’s bill supported by government – has succeeded.  The Indian Act Amendment and Replacement Act, initiated by Rob Clarke, MP for the huge majority-Aboriginal northern Saskatchewan riding of Desnethé—Missinippi—Churchill River, himself a member of the Muskeg Lake First Nation, became law December 16, 2014. Its preamble calls the Indian Act “an outdated colonial statute.” Wholesale change is not on the public policy agenda. Aboriginal Affairs minister Valcourt praised the Clarke bill for its “incremental” approach. Overdue changes were made, such as deleting the need for ministerial approval of by-laws and repealing religious and residential schooling references, but the bill was criticized by First Nations for being imposed with insufficient consultation.

The most notable provision requires the minister, “Within the first 10 sitting days of the House of Commons in every calendar year, [to] report to the House of Commons committee responsible for Aboriginal affairs on the work undertaken by his or her department in collaboration with First Nations and other interested parties to develop new legislation to replace the Indian Act.” The minister’s 2015 response in February noted, “there is no clear consensus on a way forward for large-scale, comprehensive change to the Indian Act.” It reviewed modern land claim successes, and focused on legislative and self-government progress from 2006 on. For an annual report, review of the previous decade works only the first time; next year’s will need some 2015 specifics to respond to the obligation to report on “work undertaken … to develop new legislation to replace the Indian Act.” We shall see.

Wholesale change is not on the public policy agenda. Aboriginal Affairs minister Valcourt praised the Clarke bill for its “incremental” approach. Fundamental overhaul, though, has its advocates. In 2000, Tom Flanagan at the University of Calgary published the prize-winning but controversial First Nations, Second Thoughts, followed in 2010 by Beyond the Indian Act: Restoring Aboriginal Property Rights. Flanagan argues, as did the 1969 White Paper, that property rights, meaning individual title to reserve property and the ability to alienate, are central to First Nations prosperity.

Gordon Gibson, assistant to Pierre Trudeau at the time of the White Paper and now a senior fellow at the Fraser Institute, has published A New Look at Canadian Indian Policy: Respect the Collective – Promote the Individual (2009). The White Paper described the constitutional identification of an ethnic group as discriminatory; Gibson calls it “racist.” The reserve system, he writes, is “both a fortress and a prison,” the escape from which is to promote the individual by “giving money to individuals, rather than chiefs, [an approach] ignored by governments.”

A contrary view is that of John Ralston Saul, in The Comeback: How Aboriginals Are Reclaiming Power and Influence (2014). Canada’s Aboriginal peoples, he argues, are a resurgent power due to the emergence of an educated middle class able to take advantage of constitutional rights and favourable court decisions. Haida in 2004, required consultation and, where necessary, accommodation in advance of resource development. Last year’s declaration of Aboriginal title in Tsilhqot’in, with its exclusive right to decide how the land is used and the right to benefit from those uses, has transferred enormous power to at least some First Nations, especially in B.C. In 2005, Mikisew Cree extended the Haida doctrine to the treaty areas of other provinces. Saul points to the engagement of First Nations, often as full partners, in developments such as northern Ontario’s Ring of Fire. All of this is a “comeback” because he sees First Nations reclaiming the place of leadership they had in shaping Canadian attitudes in the country’s early history.

Gibson and Saul are hardly ideological soulmates, but both are correct that calls for a recast of the relationship of government with Aboriginal people are ignored, which may have been Den Tandt’s point. Certainly it is easier for both governments and opposition to deal with issues as they arise than to take on sweeping change.



John Edmond
John Edmond is a member of the bars of Ontario and British Columbia. He lives in Ottawa.

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