Abolishing the Indian Act

Michael Den Tandt’s recent piece in the National Post provides an explanation as to why Canada should abolish the Indian Act and the reserve system entirely. This particular editorial has sparked considerable debate on the subreddit r/CanadaPolitics. Using that forum as a metric, the debate concerning such a proposal assumes that abolishing the Indian Act is a logical necessity, implies a new system of funding First Nations is required and that a so-called ‘special status’ should not (re: no longer) be applied to First Nations peoples. The editorial itself is mostly misleading and simplistic, and the conclusions drawn in the debate on Reddit are baseless and not rooted in the realities of international and common law.

Any attempt to discuss abolishing the Indian Act should immediately trigger the White Paper Statement of the Government of Canada on Indian Policy. It was presented in 1969 by then Minister of Indian Affairs, Jean Chretien during Pierre Trudeau’s first term as Prime Minister. From a UBC website project entitled Indigenous Foundations the 1969 White Paper proposed to:

  • Eliminate Indian status
  • Dissolve the Department of Indian Affairs within five years
  • Abolish the Indian Act
  • Convert reserve land to private property that can be sold by the band or its members
  • Transfer responsibility for Indian affairs from the federal government to the province and integrate these services into those provided to other Canadian citizens
  • Provide funding for economic development
  • Appoint a commissioner to address outstanding land claims and gradually terminate existing treaties

The proposed policy was met with skepticism among aboriginal populations which was articulated in the so-called ‘Red Paper’ entitled Citizens Plus published by the Indian Association of Alberta. The Red Paper took issue, among other things, with the lack of consultation from the federal government in the lead-up to the 1969 White Paper, the removal of Indian status in Canada and the repeal of the Indian Act itself. The criticism was so powerful that it prompted Prime Minister Pierre Trudeau to step-in and reverse government direction before any of the proposals could be enacted. Since that time the jurisprudence surrounding aboriginal affairs in Canada has continued to develop but the proposals outlined in the 1969 White Paper have never been mentioned in a serious political context. I take issue with Den Tandt’s failure to even mention the 1969 White Paper or the subsequent Red Paper in his editorial calling for the abolition of the Indian Act and the reserve system. Especially in light of the fact that aboriginal affairs in Canada is rooted deeply in historic events, De Tandt cannot begin a discussion on this topic without mentioning the 1969 White Paper.

Any discussion on how to move forward from the Indian Act and the reserve system must first be based on existing jurisprudence and should take place within the context of international law and agreements. The Supreme Court of Canada has on numerous occasions upheld the sui generis rights of aboriginal people in Canada (see Delgamuukw v. British Columbia). When discussing the relationship between Canada (Canadians) and First Nations (aboriginals), it should be conducted under the same pretense as discussing the relationship between Canada and the United States of America, for example. First Nations in Canada are equal and separate political entities in the same manner as any other states that exist in the world. This is not a mere statement of fact contained within the Indian Act nor it is not a policy of the department of Indian Affairs, rather it is a right that exists simply because of the relationship between the Crown and First Nations that has existed before Canada was a country and transcends all jurisdiction of the federal government. It is a sui generis right that has serious implications for the relationship between First Nations and the federal government.

Understanding the legal basis for the relationship between First Nations and the federal government, we can now discuss the sticky issue of aboriginal social welfare programmes and their sources of revenue. Just the same as it would be terribly out of line to suggest that Americans be granted a waiver to unconditionally inspect our budgetary finances in Canada, so too is it out of line to suggest that Canadians be granted permission to inspect the financial affairs of aboriginal people. This is rooted in the inherent right of nations through sovereignty and it is the same right which we as Canadians exercise when we govern ourselves within our own lands and comport ourselves in other lands. And furthermore, to argue that because the source of the funding is from the federal government and the Canadian taxpayer, and therefore an inspection is justified is not useful. The federal government has a fiduciary duty to ensure that a system is in place which permits First Nations to co-exist within the boundaries of Canada. This duty again does not stem from an act of Parliament but from internationally recognized rights that are unique to the relationship between the Crown and First Nations in Canada. The system which is currently established does not permit aboriginal people to raise revenue through traditional means typically exercised by a state. This system has been upheld by the Supreme Court of Canada provided that it continues to, in good faith, provide for the needs of the communities it seeks to serve. Thus, through our obligation to ensure that First Nations communities can co-exist in Canada, we have established a funding system as the sole source of income for aboriginal nations. Simply because the system involves the exchange of funding does not mean that one state entity has the right to follow-up on spending and order or direct spending schemes within another state. Or to use a more personal analogy; you would not permit the federal government to inspect your bank account simply because they backed your mortgage. And nor should an example of international aid come into play unless we are dealing with a situation where a state is in such a dire need for assistance that they request said assistance (as if often the case for international aid programmes). That is not to say that a funding scheme could not be proposed that would seek to follow-up on spending programmes within each nation, but such an agreement would have to be settled between the federal government and each respective nation. Again, respecting the rights of each political entity as separate and equal nations.

When we can understand the position of First Nations within the context of a relationship with Canada and the federal government we can better understand why arguments that seek to have aboriginal people integrate within Canada are illogical and oppressive. Again, just the same as Canadians would be revolted at the suggestion that we begin integration with the United States because said integration is inevitable, so too might First Nations be revolted at the idea of integration with the nation they have arranged to co-exist alongside. As a separate nation, we are masters of our own house and have the right to self-determination, which extends to cultural self-determination. Integration is simply not possible in any form as a government policy without being unconstitutional and worse against the spirit of international law.

At the end of the day, I do not have a solution to the relationship between the federal government and First Nations. I can agree that there is a problem and that it needs to be fixed sooner rather than later. I can also agree that the current provisions of the Indian Act and the reserve system are out-dated and require a complete overhaul. I reject the idea that the Indian Act can be abolished outright because Canada will always have a fiduciary duty to First Nations in Canada and thus a policy of some form will always exist at the federal level. Micheal Den Tandt simply avoids this discussion outright which only lends to an oversimplification on his part. In order to move ahead on this issue in Canada we must acknowledge the rights of aboriginals and bring the negotiations under the right terms. The Crown plays a positive role in this as the great mediator who has established this system in their wisdom, now at least Canada and First Nations can come to the table as brothers from a common mother.