How to reform the Indian Act
Published On Thu Jul 29 2010. Christopher Alcantara Assistant Professor, Department of Political Science, Wilfrid Laurier University
Last week, Shawn Atleo, the national chief of the Assembly of First Nations, called for the federal government to repeal the Indian Act within the next two to five years.
Approximately eight years ago, the federal government tried to do just that through the First Nations Governance Act, a massive piece of legislation that sought to significantly alter reserve life in Canada.
Despite universal agreement that the Indian Act was outdated and ineffective, the federal government’s attempt to replace it in 2002 failed.
There were two reasons for this result.
One was that the First Nations Governance Act was generated from above by the federal government, rather than from below by aboriginal peoples.
Second, the proposed law was a one-size-fits-all approach, and thus ignored the fact that First Nations in Canada are highly diverse, not only in terms of their languages, cultures, religions, government structures, and economies, but also in terms of their goals.
As a result, the Indian Act today remains in effect despite universal agreement that it needs to be replaced.
So what should be done?
To put it succinctly, the Crown should encourage and adopt a bottom-up, incremental approach to reforming the Indian Act. Such an approach would not only be politically feasible, but would also respect the diversity of First Nations in Canada.
A good example of this approach is the First Nations Land Management Act (FNLMA). In the early 1990s, a small group of chiefs approached the federal government about creating a legislative framework for aboriginal groups to opt out of the land management provisions of the Indian Act to create their own land codes.
Federal policy-makers were receptive and, several years later, Parliament enacted the FNLMA. Originally, however, only 14 aboriginal groups opted into the legislation but based on their initial successes, dozens of other First Nations entered into the FNLMA to create their own land codes.
The results have been encouraging on a number of fronts.
For one, Indian Act reform was accomplished without actually changing the Indian Act.
Second, the FNLMA has become a viable choice for many aboriginal groups because it was not imposed on them by the Canadian state.
Third, land management practices under the FNLMA have generated positive economic outcomes while respecting the diverse traditions and interests of individual First Nations.
So far, the federal government has been cautious in using this approach to overhaul the Indian Act. The feds, however, should consider using it more aggressively, subject to two caveats.
First, the federal government needs to be more experimental in the range of approaches it is willing to consider. Many of the bottom-up, incremental approaches adopted in the past were rooted in capitalistic thinking, such as the improvement of land management regimes and the transference of taxation powers to First Nation governments.
These are important initiatives, but policy-makers need to be more open to new alternative legislative frameworks that seem counterintuitive to us, but which may in fact produce preferable outcomes for those groups that are more interested in non-western outcomes.
Second, policy-makers need to actually listen to what aboriginal groups want. This means paying attention to what aboriginal groups think is best for them and providing support and encouragement for them to pursue their ideas through legislative action.
Colonialism is a stubborn stain on our nation’s history. It’s time to try a new approach to reforming the Indian Act in Canada.
Christopher Alcantara is co-author of Beyond the Indian Act: Restoring Aboriginal Property Rights (McGill-Queen’s University Press, 2010).
< http://www.thestar.com/opinion/editorialopinion/article/841560–how-to-reform-the-indian-act >