Wholesale Rapid Removal Of The Indian Act Without Alternatives Will Be Met With Resistance

Few seem to realize the rapid pace of legislative and policy change proposed by the Liberal government on Indigenous issues; from Indian Status to fiscal relations, self-government and land claims. Most revolve around a proposed Rights, Recognition and Implementation Framework legislation, coming sometime this year.

Last week, Yellowhead Institute published a report called Canada’s Emerging Indigenous Rights Framework: A Critical Analysis to help break it all down. But one area that requires additional context is around the ongoing movement away from the Indian Act.

There is no question that the Indian Act must go. Its assimilation provisions, restrictions on mobility, violating nearly every treaty, aggressive patriarchy, and the dismantling of authentic First Nation governance models is all well documented. So the question becomes which path do we take from here?

Of course there has been change and proposed changes in the past.

After First Nation political organizing following World War Two, a Liberal Government of Louis St. Laurent introduced wholesale amendments to the Act in 1951. Most of the cultural and mobility prohibitions were lifted. However, St. Laurent refused to address First Nation demands for self-determination.

Then in 1968-1969, another Liberal Government, this time led by Pierre Trudeau, promised progressive movement away from the Act but delivered the much maligned White Paper on Indian Policy, a plan to effectively liquidating First Nation rights under the auspices for improved service delivery. The White Paper was rejected nearly universally by First Nations.

Jean Chretien’s Liberals attempted reform with the 2002 Governance Act, but it too was rejected by First Nations because it maintained an interventionist role of the Minister of Indian Affairs, entrenched the band council system (with added accountability measures), and excluded First Nation women.

In these cases, Liberal governments consulted extensively with First Nations (each proposal was formally introduced after a year of dialogue); First Nations greeted the initial

consultation with optimism; and finally, there was profound disappointment when treaty rights, genuine self-determination or First Nation input generally was ignored.

This very brief context is instructive as we find ourselves once again in familiar circumstances: a new Liberal government is attempting to remove the Indian Act, there is a consultation period, though truncated, and an apparent “nation-to-nation” collaboration. If history is a guide, the final act here is betrayal.

In the meantime, there is also one key difference in the current version of this pattern.

The Indian Act is no longer the monolith it once was. Rather, since the introduction of a 1985 amendment allowed First Nations to take control of band membership, there has been a quiet proliferation of Indian Act exit opportunities. These exits include subsidiary pieces of legislation that neutralize certain provisions in the Indian Act. From the First Nations Land Management Act (1999) to the First Nation Election Act (2015). As more elected band council’s enter into these processes the Indian Act becomes unbundled.

The current government’s approach, at least what we can determine of it at this point, takes advantage of this fragmentation.

A lesson has been learned: the wholesale rapid removal of the Indian Act without alternatives will be met with resistance. So instead, when the government introduces the Rights Recognition and Implementation Framework legislation, the exit will be optional, though strongly encouraged, and targeting regional groups or individual bands. In this way, First Nations can be more easily divided.

Elected band councils who go through a capacity building process, financial management certification, and service delivery re-organization will be eligible for a narrow version of self-government outside the Indian Act. For those not deemed eligible or those who continue to resist, the Indian Act will remain in place.

A new means to scrap the Indian Act has been discovered. But the ends appear the same. For First Nation communities and elected Chief and Councils, caution is merited. And for elected MPs, within or outside government, transparency, accountability and honesty on this “new” approach is overdue.

Wholesale rapid removal of the Indian Act without alternatives will be met with resistance


A different PM Trudeau, same buckskin jacket. But where is the ‘real change’ for Indigenous peoples? (co-authored with Shiri Pasternak)

During the Harper decade, Indigenous peoples knew where they stood. His government, and really the past 150 years of Canadian governments, were clearly hostile. The past two years of a Liberal government, however, have been more confusing. On one hand, Justin Trudeau is praised internationally for making the relationship with Indigenous peoples, as he says, his “most important.” On the other hand, he is heavily criticized for symbolism over substance.

While this debate goes on, we have been slow to realize that the Trudeau government is actually pressing ahead with a dizzying amount of legislation andpolicy affecting Indigenous peoples. In fact, when you consider three pieces of legislation already passed and 13 pieces of legislation introduced or proposed (including private members’ bills), over the span of a four-year period, this Parliament could be the most active since Confederation. If all the bills become law, they would represent 40 per cent of the total legislation on Indigenous issues.

The anchor for these changes is called the Rights, Recognition and Implementation Framework legislation (or the “Rights Framework”), which the government plans to introduce later this year, and implement before the next federal election. In February, the Prime Minister outlined a process to move away from the Indian Act, end chronic underfunding, and address land-claim issues. Going forward, the Prime Minister said, “this legislation will guide all government relations with Indigenous peoples.”

While the legislation is not yet introduced, the Yellowhead Institute, with a network of primarily First Nation policy analysts across the country, has been reviewing government literature, policy drafts and official statements to predict what’s coming. That analysis can be found in a report we released this week called Canada’s Emerging Indigenous Rights Framework: A Critical Analysis.

Critical, because we find that despite the flurry of activity, it is nearly all directed at repackaging old, discredited policies. This is an attempt to maintain a modified version of the status quo, and as such, given Mr. Trudeau’s rhetoric on “real change” and the “nation-to-nation” relationship, there is also an effort to mislead First Nations on the transformational nature of this proposal.

Before we get into our concerns on the Framework, positive developments in the federal government’s recent record should be acknowledged: water infrastructure on reserves, resources for education, an anticipated end to the oppressive third-party management system – and despite some disappointing results, the government did launch an inquiry on missing and murdered Indigenous women and girls. (These initiatives must be credited also to the demands for justice by First Nations who organized primarily in grassroots movements.)

While we applaud the efforts by this government, they are, frankly, the bare minimum and relatively straightforward to address. It is the more institutional andstructural changes that have the potential to affect our collective relationship for generations to come that requires scrutiny. That’s what the Rights Framework proposes to do, starting with the Indian Act.

Addressing the Indian Act has been an continuing issue for Canada since the 1960s and Justin Trudeau is only one in a long line of candidates, the most famous of whom was his father. Pierre Trudeau, who introduced a “white paper on Indian policy,” recommended the rapid repeal of the Act, at the expense of treaty rights. The proposal was defeated by a powerful First Nation movement.

Justin Trudeau, though wearing the same buckskin fringe jacket, proposes a somewhat different tack. This government seeks a gradual elimination of the Indian Act through a piece-by-piece dismantling of the legislation and voluntary opt-out processes. However, First Nations will be opting in to a new self-government model that is focused largely on re-entrenching reserve-based, administrative governance. How is this different from the current circumstances? It’s not, really.

There will be changes to the way services are delivered. Federal officials are championing an aggregation-based model where communities cluster together to administer social policy (e.g., education, health care, housing). This is what the Liberals refer to as “reconstituting nations.” The long-term goal is that the newly created Department of Indigenous Services will cease to exist as these aggregate “nations” are devolved responsibility. It isn’t clear yet whether that responsibility includes authority or simply administration.

There will also be changes to fiscal policy. New 10-year grants are being offered to replace the largely ad hoc and unpredictable year-to-year funding model. These grants will only be available to First Nations that pass transparency andaccountability tests and earn certification, reminiscent of a Harper government approach. Moreover, without a commitment to increased financial support, chronic underfunding may actually continue, but now in 10-year intervals.

Troubling, and central to our critique, is that land and resources are delinked from these processes. We agree with the Royal Commission on Aboriginal Peoples, which stated in 1996, “a critical element of fiscal autonomy is a fair and just redistribution of landand resources for Aboriginal peoples. Without such a redistribution, Aboriginal governments, and the communities they govern, will continue to lack a viable and sustaining economic base.” Emerging federal policy on landandresources does not address redistribution of landand resources.

For instance, in response to a recent landmark Supreme Court decision that recognized First Nations have significant authority over lands not covered by treaty, the Liberals will be revising the land-claim policy and moving away from large-scale modern treaties toward a piecemeal approach. A range of options is being tested at more than 60 negotiation tables, but since these negotiations are confidential the future direction of the policy is unclear. Considering that government interpretations of land rights have been traditionally narrower than the courts’, we are concerned this is a risk-management strategy to avoid dealing honourably with First Nations.

Finally, there is the issue of consent. At the heart of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is the notion that Indigenous peoples be empowered to give their consent (or not) on everything from resource extraction to real estate development on their territories (reserve or otherwise). While the Liberals have endorsed the principle and voted on Romeo Saganash’s UNDRIP bill, their draft legislation on the new environmental-assessment processes (the trigger for consulting Indigenous peoples) completely avoids consent. This, too, is troubling.

Taking these proposed changes together, we find that nearly all of Canada’s proposed changes to its relationship with First Nation peoples neglect issues of landrestitution, genuine self-determination and treaty obligations. Instead, they focus on the creation of self-governing First Nations with administrative responsibility for service delivery on limited land bases. Decision-making powers are constrained to the local (including any notion of consent). Provincial, territorial and federal governments will continue to patronize and intervene in the lives and lands of First Nation peoples.

The danger of accepting government messaging, and the Rights Framework as currently articulated, is entrenching this situation for the long-term and settling for a very narrow vision of Indigenous jurisdiction. This is not the shape of a nation-to-nation relationship.