Harry Swain, a former Deputy Minister of Indian Affairs in the Government of Canada, has said:
“At the still, dead heart of the relationship between Canada and aboriginal peoples is the Indian Act itself, a Victorian horror insufficiently updated and now in urgent need of replacement. Under the guise of protecting Indians from rapacious frontiersmen in the nineteenth century, the act severely constrains, in the twenty-first, the economic opportunities available to reserve communities and individuals, guarantees substandard housing, gives too much power to Ottawa, perpetuates dependency and encourages the growth of a parasitical Indian industry. It has an almost East German quality to it. There has to be something better.” [1] As noted below, Swain subsequently elaborated on his views in a Globe and Mail op-ed.
In fact, there have been several attempts at reform, one by the government of P.E. Trudeau in 1969 , one by a Parliamentary Committee in the 1980’s – the so-called Penner Committee, and another by the Chretien government in the early years of the present century.
The government of P.E. Trudeau issued a White Paper[2] in 1969, after consultations with Indian organizations. Under that proposal the Indian Act and the federal Department of Indian Affairs would have been scrapped so that Indians would have had no special status. But that proposal itself was soon scrapped in light of scathing and unanimous opposition by those affected.
J.R. Miller, in his history of Indian-White relations in Canada[3], states with respect to the process leading to the White Paper: “the policy formulation process became subordinated to the needs of government. … [T]he political operatives in the Prime Minister’s Office and the Privy Council Office … seized control of the [policy] review. Since their most immediate constituency was the new prime minister, they shaped the proposals according to Trudeau’s notions about individualism, equality, and the inappropriateness of recognizing ethnic and racial groups as collectivities. The brutal truth was that the series of consultations that had been carried out with Indian leaders never had any impact on the review of policy. When Indian leaders at the end of April 1969 had been congratulating Chretien [the Minister of Indian Affairs at the time] for listening to them and agreeing to continue the dialogue, officials were putting the final touches to a white paper whose assumptions, arguments, and recommendations were the antithesis of what Indians had been saying.”[4]
The Penner Committee – with Indians as non-voting members, produced a report in 1983 that recognized the Aboriginal right of self-government. It held that the right of self-government was inherent – not conferred or delegated by the federal government – and that it went beyond functions and powers of municipal style governments: First Nations should “form a distinct order of government in Canada”. But this left much to be negotiated and the Committee’s report was stillborn.
A further attempt at Indian Act reform – titled the First Nations Governance Act – occurred in 2002 following the issuance of the report of the Royal Commission on Aboriginal Peoples. Though it was debated in the House of Commons it was never implemented, having been opposed by First Nations organizations. According to an article in Policy Options[5], the proposed legislation would have left DIAND with considerable power over Indian affairs. That article states: “It is difficult, if not impossible, to reconcile the prescriptive nature of the FNGA [First Nations Governance Act – the title of the proposed legislation] with the notion of First Nations self-government.”
J.R. Miller states, with respect to the stance of Indian leaders on the Indian Act: “The paradoxical stance of Indian leaders towards the Indian Act – loathing it but opposing its repeal – can be understood only in relation to another bitter product of the coercive relationship in general, and the Indian Act in particular. Simply put, some 170 years of bad relations have created so much distrust in the ranks of Native leaders that they are afraid to take a chance on government initiatives that will significantly alter the Indian Act, let alone support its annulment. Distrust is so great between Indians and the federal government that Indian leaders neither accept nor are prepared to jettison the legislation.”
As noted, Swain elaborated on his views with respect to ‘something better’ than the Indian Act in a Globe and Mail op ed[6] in 2005. Noting that opposition to reform at the time of P.E. Trudeau’s White Paper in 1969 and a subsequent attempt in the 2000’s came “principally from the chiefs and councillors whose power derives from the act. … The problem is that widespread consent, at least from the Indian political class, is not possible. After all, a system that endows them with power can’t be all bad. When it also creates a moral grip on Canadians at large, it is especially precious.”
Swain argues that “the key lies in not forcing a new legal regime on Indian communities. Instead, the government should bring forward modern bills in such areas as governance, land ownership and management, education, taxation and other areas crucial to modern life.”
But, Swain argues, such bills “would not extinguish the Indian Act. They would stand alongside it. When bands were ready at their own pace, they could opt for the new.”
He continues: “Over a period of years, there would be a substantial voluntary migration toward the new framework. Some bands would continue under the old act for a long time, perhaps indefinitely. That’s fine: At least no one would be forcing them to live under legislation that South Africa copied, in 1948, to create its own miserable Bantu homelands. In this way, a considerable moral burden would be lightened, if not removed, for the larger society. And Indian communities would have, when they wanted it, modern tools for managing their lives.”
Finally, Swain argues that the requisite legislation should be drafted by an all-party committee of the House of Commons following public hearings.
Currently, efforts at reform appear to be focussed on implementing the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP), adopted by the UN General Assembly in 2007. Canada, as well as Australia, New Zealand and the United States, voted against adoption at that time. According to the CBC, the Harper government opposed UNDRIP “because it lacks clear guidance for implementation and conflicts with the existing Canadian Charter of Rights and Freedoms, which the government believes already protects the rights of aboriginal people”. The Trudeau government reversed that decision in 2016.
Until recently the Government of Canada appears to have done little, except to reiterate its support, to implement UNDRIP. In December 2020, however, legislation was introduced in the House of Commons – Bill C-15 – to:
“provide a roadmap for the Government and Indigenous peoples to work together to fully implement the Declaration.
Legislation to advance federal implementation of the Declaration is an important step in moving Canada’s relationship with Indigenous peoples forward. It is a key building block in fully recognizing, respecting, protecting and fulfilling the rights of Indigenous peoples. Further, both the Truth and Reconciliation Commission and the National Inquiry into Missing and Murdered Indigenous Women and Girls called on the federal government to implement the Declaration as the framework for reconciliation.”[7]
Bill C-15 is now law, having received Royal Assent on June 21 of this year.
Articles 5 and 6 of the Bill read as follows:
“5 The Government of Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration.
Action plan
6 (1) The Minister must, in consultation and cooperation with Indigenous peoples and with other federal ministers, prepare and implement an action plan to achieve the objectives of the Declaration.”
As has been widely noted in news reports on UNDRIP, many of its clauses[8], such as many of the following, require the “free, prior and informed consent” of indigenous people (emphasis added throughout the following):
Article 32(2): States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
Article 3: Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development
Article 4: Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.
Article 28: 1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.
2.Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.
Article 19: States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
In the Backgrounder to the Bill, the government seeks to downplay the significance of the words free, prior and informed consent stating:
“References to “free, prior and informed consent” are found throughout the Declaration. They emphasize the importance of recognizing and upholding the rights of Indigenous peoples and ensuring that there is effective and meaningful participation of Indigenous peoples in decisions that affect them, their communities and territories.
Free, prior and informed consent is about working together in partnership and respect. In many ways, it reflects the ideals behind the relationship with Indigenous peoples, by striving to achieve consensus as parties work together in good faith on decisions that impact Indigenous rights and interests. Despite what some have suggested, it is not about having a veto over government decision-making.
It is important to understand free, prior and informed consent in context: different initiatives will have different impacts on Indigenous peoples’ rights. Free prior and informed consent may require different processes or new creative ways of working together to ensure meaningful and effective participation in decision-making.”[9]
It will be interesting to observe how this plays out in future legislation and negotiation!
Though it does not deal directly with reform of the Indian Act one hopes that the process set in motion by Bill C-15 will lead to an Action Plan both for implementing UNDRIP and for reforming the Indian Act that is broadly accepted by Indigenous People, provincial governments and the Canadian community, unlike the attempts by previous governments.
But, one should not, I think, be too optimistic. Jody Wilson-Raybauld headlined an Opinion piece in the Globe and Mail (April 24, 2021) about Bill C-15 ‘A Small Step Forward’:
“While there have been some needed investments in social well-being, it has been six years of big promises on Indigenous rights with few substantive and long-term outcomes to show for it. Given this who can blame certain Indigenous voices for being so against the bill? And who can blame other Indigenous voices for being cautious and lukewarm at best in their support?
“But given all that must be done and given how minimal the bill is and how the Trudeau government’s record has been more rhetoric than substance, it is unlikely the bill, if passed [as it has been] will effect tangible and meaningful change in the near future.”
One can only hope that she will, in the event, prove to have been too pessimistic.
[1] Oka: A Political Crisis and its Legacy, Harry Swain, Douglas and McIntyre, 2010, p. 205.
[2] The Canadian Encyclopedia has a summary. See: https://www.thecanadianencyclopedia.ca/en/article/the-white-paper-1969
[3] J.R. Miller, Skyscrapers Hide the Heavens, Third Edition, 2001, University of Toronto Press, Toronto. There is a good ‘Coles notes’ summary in the Canadian Encyclopedia, see https://www.thecanadianencyclopedia.ca/en/article/aboriginal-people-government-policy
[4] Miller, p.334.
[5] Frank Cassidy, The First Nations Governance Act: A Legacy of Loss, April, 2003; https://policyoptions.irpp.org/magazines/big-ideas/the-first-nations-governance-act-a-legacy-of-loss/
[6] https://www.theglobeandmail.com/opinion/how-to-get-out-of-the-indian-act-mess/article739992/
[7] https://www.justice.gc.ca/eng/declaration/index.html.
[8] https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf , Emphasis added.
[9] https://www.justice.gc.ca/eng/declaration/about-apropos.html. Emphasis added.