What is the impact of the Act to Amend the Indian Act and to Provide for its Replacement (Bill C-428)?

Blog, Aboriginal Futures, Josh Giesbrecht

The Indian Act is an outdated and paternalistic law that impedes economic progress for First Nations communities across Canada. Fortunately, positive policy reform may be on the way.

Recently, Saskatchewan MP Rob Clarke introduced a private member’s bill (Bill C-428) that would make significant changes to the Indian Act. Clark’s bill has attracted very little attention from either the media or opposition parties. This may be because private member’s bills almost always fail. However, Bill C-428 may buck this historical trend. The bill received the endorsement of the Harper government in October 2012 and has passed first reading in the House of Commons. With these milestones achieved, Bill C-428 now has a reasonable prospect of becoming law, with potentially lasting impacts for First Nations communities.

Canada’s Aboriginal policy is problematic in a number of important respects, and there is no single, “silver bullet” policy solution in this area. However, Rob Clarke’s bill is a step in the right direction and the Harper government’s apparently enthusiastic support for it is encouraging.

The bill seeks to take out many of the paternalistic aspects of the Indian Act. For example, it would repeal the sections which deal with wills and estates. Under the Indian Act, the Minister of Indian Affairs is responsible for approving wills for status First Nations who are residents of reserves when they die, and for responding to individuals who challenge these wills. This arrangement creates unnecessary red tape and bureaucratic hassles for families during periods of mourning. When wills are challenged, it sometimes takes years for cases to be resolved. Changing these paternalistic arrangements can make the process more efficient, while enhancing the sense of self-governance in First Nations communities.

Bill C-428 would bring a number of other welcome changes as well. It would remove sections that deal with the sale or barter of produce as well as the provision that requires band to seek permission from the minister to change their own by-laws. These changes would enhance personal and economic freedom for Aboriginal individuals, while enabling First Nations communities to modify their local by-laws as they see fit.

The bill also seeks to repeal the sections that restrict trade with First Nations peoples to people living off reserve and takes out all references to residential schools. However the bill’s greatest impact will come from its section on creating an ongoing dialogue between First Nations and the government on further reforms to the Indian Act. The law would require the Minister to report annually to the House of Commons on the work that the department has done in collaboration with First nations organizations and other stakeholders to develop new legislation that would replace the Indian Act.

Critics may point to the fact that the bill in no way actually requires the minister of Aboriginal affairs to take any concrete action on reforming the Indian Act other than consulting with First Nations and reporting to the committee annually.  However, these new requirements would significantly improve the prospects of major policy change in the years ahead, by enabling reformers to keep the issue relevant in the arena of public debate and to exert ongoing pressure on the government to overhaul the Indian Act.

Bill C-428 is the first bill to have a legitimate chance to pass into law that holds comprehensive reforms to this outdated paternalistic piece of legislation known as the Indian Act. Rob Clarke’s proposal does not seek to address all of the problems with the Indian Act or the federal government’s Aboriginal policy more generally, but it is nonetheless an important step in the right direction.