A Proposal for Ending the Indian Act and Canadian Reserve System

Commentary, Aboriginal Futures, Gerry Bowler

Joseph Quesnel’s “‘Zero-in-10’ Plan for Ending the Indian Act and Reserve System” is a policy paper aimed at providing Canadian decision-makers with a way to bring to an end a failed 150-year old system of dealing with our Aboriginal population which has hitherto been centred on the Indian Act. It confronts the problems that such a paradigm shift would bring about in the minds of Indigenous people and the larger Canadian public and suggests ways to move forward for the next decade.

There have been numerous attempts to alleviate the dysfunctions caused by the reserve system and the Indian Act, most notably the 1969 “Statement of the Government of Canada on Indian policy”, better known as the “White Paper”. This was the brainchild of Prime Minister Pierre Trudeau and his Indian Affairs Minister Jean Chretien. It proposed abolishing existing legislation that treated Indigenous people as a separate class of Canadian society, transferring federal powers over Indigenous health care and education to the provinces and changing reserve land into private property held by Aboriginals. These initiatives were fiercely opposed by Indigenous activists and were eventually dropped. Less ambitious endeavours were proposed in 1996 with Bill C-79 which aimed at amending rules covering band governance and resource use and in 2002 with Bill C-7 which would have given band councils more freedom and power. Both aroused opposition by Indigenous groups and were abandoned. A 2012 meeting between the Harper government and First Nations ended with the government stating that removal of the Indian Act was impossible but that smaller helpful steps could be taken.

A number of smaller steps have been taken in the 21st century to show that moving away from the Act can work. These include the 2005 First Nations Oil and Gas Moneys Management Act (FNOGMMA) and the First Nations Fiscal Management Act (FNFMA), the 2006 First Nations Commercial and Industrial Development Act (FNCIDA) and, from 2019, the First Nations Land Management agreements (FNLMA). However, it is a failed proposal from 2009, the First Nations Property Ownership Act, that Quesnel points to as a model for the future. 

Quesnel’s plan has ten basic components: 

  1. Parliament places a sunset clause provision in the Indian Act as a statute whereby the legislation will expire in 10 years.
  1. Parliament would pass a version of the First Nation Property Ownership Act where underlying title and responsibility for existing reserve lands would be transfers from the Crown to First Nation communities, which could negotiate with Indigenous communities prepared to take on additional responsibilities to retain it in collective fee simple or decide to divest land to individuals. 
  1. Parliament would pass legislation that provides federal interim provisional rules for oversight of areas within the Indian Act, such as laws governing the tax exemption for First Nations on reserve, or laws encompassing First Nation membership rules, or regulations governing elections. First Nations that have not negotiated their own governance agreement with Ottawa would come under this legislation so there is no legislative vacuum.
  1. Ottawa would negotiate and ratify governance and fiscal agreements with First Nations, which could be done on a regional basis. Once these agreements are ratified the First Nations would remove themselves from the Indian Act or the interim federal legislative frameworks.
  1. At the same, Parliament would create provisional legislation that would resemble the Indian Act and allow the bands not participating to remain under those until they were ready for change. 
  1. By the 10-year mark, all First Nations would be covered by legislation that had been negotiated individually or regionally with Ottawa. Those who have not passed the 10-year mark will remain under interim federal regulations.
  1. Federal Parliament would pass a version of Senate Bill S-216 to provide Crown recognition of these self-governing First Nations. 
  1. Ottawa will meet with First Nation leaders and organizations to discuss the future of federal service delivery to their communities, as well as the future fiscal relationship with First Nations, aiming to encourage communities to raise their own revenues. 
  1. The Ministry of Crown-Indigenous Relations and Northern Affairs will continue to exist because the federal government will continue to have special relationships with Indigenous peoples. 
  1. When all Indigenous communities have lived under governance agreements for a minimum of five years, possible amendments to the Constitution Act, 1982 will take place to possibly remove  S. 91 (24) in the British North America Act that read: “Lands reserved for the Indians.” Ottawa would get out of the Indigenous land management business forever.

Quesnel realizes that not all bands would be ready for such a bold move and would require good-will on both sides.

 

 

Gerry Bowler is a Canadian historian and a Senior Fellow at the Frontier Centre for Public Policy.