Looking to move beyond the Indian Act, can Canada shed its ‘colonial structures?’

TheGlobeandMail.com – Canada
September 1, 2017.   

Self-government for Indigenous peoples is a potentially transformational idea. But how Canada would get there and what it might look like are complex questions.

Prime Minister Justin Trudeau announced a major change to Canada’s relationship with its Indigenous peoples this week. His government has dissolved the Indigenous and Northern Affairs department, whose “colonial structures” it described as an impediment to the government’s ambition to forge a new partnership, and replace it with two new ministries. One will focus on delivering services, the other on the relationship between the Crown and Indigenous people.

The government’s aim is to move beyond the Indian Act, which has governed Canada’s relationship with status Indians since 1876. The goal, they say, is a new arrangement that would close socio-economic gaps and advance Indigenous self-government and self-determination.

The federal government’s willingness to consider self-government can be traced back as far as the 1969 White Paper on Indian Policy, which also sought to abolish the Indian Act and was former prime minister Pierre Trudeau’s attempt to make status Indians “equal” citizens with no special legal standing. First Nation leaders, in what many see as the dawn of a new Indigenous rights movement, vigorously opposed the proposal. It would have granted their communities municipal-type authority, but extinguished the rights agreed upon in treaties, and they mobilized to defeat it.

Since then, self-government has been a constant thread in discussions between Indigenous peoples and the Government of Canada. In July, the federal Justice Department, led by Jody Wilson-Raybould, a former regional chief from B.C., issued a list of 10 principles governing Ottawa’s relationship with Indigenous people; the inherent right to self-government was at the top. In a separate government initiative, a cabinet committee was established to examine ways to “decolonize” Canada’s laws.

In this week’s announcement, the Liberals invoked the 20-year-old Royal Commission on Aboriginal Peoples, which produced a five-volume report that a generation’s worth of federal governments mostly ignored. One of its recommendations was to divide the department that administered Indigenous affairs. Another was to recognize Indigenous governments as a third order of government, alongside the federal and provincial or territorial levels.

“It looks like they’re using the Royal Commission on Aboriginal Peoples as a blueprint to move forward, with the cabinet committee on decolonizing Canada’s laws and now this bifurcation of the ministry,” said Hayden King, a professor in Ryerson’s faculty of arts. “But nothing else fundamentally has changed at this point.”

Many are skeptical about how far any Canadian government would go in recognizing Indigenous sovereignty.

The royal commission report argued for Indigenous governments to take control of “all matters relating to the good government and welfare of Aboriginal peoples.” The commissioners had in mind everything from control over lands and waters to health, education, justice and social services.

How would those Indigenous governments be organized? What form would they take? That’s still unknown. The 600-odd First Nations bands currently administered by the Indian Act might or might not endure as political entities. They are creations of the colonial system and the commission recommended that Indigenous people should determine their own systems of government.

First Nations differ widely in population size and in the land and resources available to them. One of the possibilities the commissioners imagined was that some groups would opt for a nation model, under which bands with shared identity and close territory would combine to form governments. The commission report estimated Canada has about 60 to 80 Indigenous nations, such as the Mi’kmaq, Anishinaabe, Haida and Inuvialuit.

The royal commission also anticipated that Indigenous people living in cities could form urban aboriginal governments to operate within municipal boundaries.

“You have quite a wide variety of well-established political traditions amongst First Nations all across Canada, and so we would probably see forms of government that draw on those traditions rather than Western parliamentary traditions,” said Peter Kulchyski, a professor of native studies at the University of Manitoba.

“If what we see parallels reasonably closely provincial levels of jurisdiction rather than municipal, that would be the preference. You also have a question of who would [form] those self-governing bodies. There are some bands with 80 people and some have 5,000 people, so what’s the appropriate size of government? Do you have regional government? Do you have levels of government? Those are very complicated issues.”

Canada already has more than 20 examples of Indigenous self-government. A number of comprehensive land-claim agreements, also known as modern treaties, allow a degree of local control, such as in parts of B.C. and Yukon. A public government resulting from the Nunavut land-claims settlement represents all residents of the territory regardless of heritage, and in northern Quebec, the Cree communities are not subject to the Indian Act and run their own regional authority. There are also examples of more limited arrangements to manage areas such as education, such as the recent agreement between the Anishinabek Nation and Ontario, which grants the nation control over curriculum.

But if the royal commission recommendations are providing the blueprint, the federal government will have some difficult questions to face, Prof. King said. The commission said self-government would not be possible without “fair redistribution of land and resources” to allow the new governments to become self-sustaining. First Nations would also need a say in what happens in Parliament, which the commission said would eventually require a House of First Peoples.

“None of that stuff has accompanied these announcements, so it looks like a process to entrench what we have already and move toward self-government-lite, where it’s really local autonomy without that power,” Prof. King said. “Getting out of the Indian Act is desirable, but if what replaces it is basically the same thing in a de facto sense, with these little communities with little access to land and resources, then what’s the point?”

As noted in the highlights of the royal commission report, Canadian governments are slowly coming to accept the idea of shared sovereignty, “but they have been loath to hand over the full range of powers needed by genuinely self-governing nations or the resources needed to make self-government a success.”

Russ Diabo, an Indigenous policy analyst, said it is still unclear what direction the Liberal government will take. It has made a number of promises, including to implement the United Nations Declaration on the Rights of Indigenous Peoples and the calls to action of the Truth and Reconciliation Commission, but he says their actions do not match their rhetoric. They may be talking about recognizing inherent rights, but there are still nearly 100 ongoing negotiations that Mr. Diabo characterizes as “termination tables.” That is, under current federal policy, First Nations have been pushed to accept some modification of their rights and title to get an agreement.

“I think those policies are unfair,” Mr. Diabo said. “If they’re planning on getting rid of the Indian Act and using the existing self-government and land-claims policy, I think that’s going to be a problem because it’s in violation of the minimum standards in the UN declaration.

“I have a lot of concerns and there’s a lot of unanswered questions for me on where this is going,” Mr. Diabo said. “You’re saying you’re recognizing the right of Indigenous peoples to self-determination and self-government, but it’s qualified by the assertion of Crown sovereignty.… You’re not adhering to international standards when you say that.”

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