Attempts to Reform or Repeal the Indian Act
There is no clear consensus on a way forward on large-scale, comprehensive change to the Indian Act. Over the years, there have been several unsuccessful attempts to reform the Indian Act, due largely to opposition from First Nations who do not wish to enact reform through the Indian Act. Indeed, while the majority of First Nations view the Indian Act as archaic and paternalistic, there are some First Nations that would like to maintain some of its elements. Others would like to see it abolished altogether in favour of implementing their inherent right of self-government and treaties.
The most recent comprehensive amendments to the Indian Act were made in 1951 and subsequent incremental amendments have come about mainly as a result of court decisions and other quasi-judicial processes Footnote 1 .
More recently, sectoral initiatives, usually introduced and led by First Nations as optional alternatives to address some shortcomings of the Indian Act, have led to incremental reform under the Indian Act.
The following is a summary of attempts at comprehensive reform and/or repeal of the Indian Act, recent sectoral legislative arrangements with First Nations, reforms and proposed reforms of the Indian Act as well as proposed legislation to address legislative gaps within the Indian Act.
Attempts at Comprehensive Reform or Repeal of the Indian Act
Statement of the Government of Canada on Indian policy (The White Paper, 1969)
In 1969, the Government of Canada tabled a policy paper commonly known as the White Paper. This paper called for a repeal of the Indian Act, an end to federal responsibility for First Nations and termination of special status. It also called for the decentralization of Indian affairs to provincial governments, which would then administer services to First Nations. The White Paper further recommended that an equitable way be found to bring an end to treaties. In this way, the government hoped to abolish what it saw as a false separation between First Nations and the rest of Canadian society.
First Nations overwhelmingly rejected the White Paper. A lack of consultation with the people who would be most directly affected—First Nations themselves—was central to their criticism. It became apparent that while many people regarded the Indian Act as paternalistic and coercive, it nevertheless protected special Aboriginal status within Confederation and therefore specific rights.
In the face of such strong negative reaction not only from First Nations, but also from the general public, the government withdrew the White Paper in 1971.
The Manitoba Framework Agreement
In the early 1990s, the Minister of Indian Affairs and Northern Development stated his commitment to the eventual abolition of the Indian Act.
Negotiations toward this end began as a "pilot" in Manitoba in 1994 with the signing of the Manitoba Framework Agreement between 60 First Nations in Manitoba, the Assembly of Manitoba Chiefs (AMC) and the Minister of Indian Affairs and Northern Development.
This agreement grew out of an AMC resolution in 1993 for the establishment of a joint working group to examine the dismantling of the Manitoba regional office of Indian and Northern Affairs Canada (INAC).
The pilot initiative was not successful and was discontinued in 2004.
The Indian Act Optional Modification Act (Bill C-79)
Comprehensive amendments to the Indian Act were attempted in 1996 through Bill C-79, which called for significant "interim" reforms to the Indian Act in several areas, including band governance, by-law authority and legal capacity, and the regulation of reserve land and resources.
The proposed Act would have given First Nation governments increased authority over some aspects of daily operations by removing ministerial involvement and streamlining certain processes.
First Nations opposed the legislative process from the start and the Bill that was tabled attempted to respond to this opposition both in its reduced scope and in its optional scheme whereby the legislation would apply only to First Nations that elected to be governed by it.
Despite these adjustments, a majority of First Nations across the country remained firmly opposed to the Bill in its entirety, or found it to be seriously flawed. The Bill was criticized as an unwanted initiative, based on inadequate consultations that ignored the previously released report of the Royal Commission on Aboriginal Peoples. Piecemeal reform of the Indian Act was not viewed by First Nations as a viable option. First Nations also objected to the Bill as a potential threat to the inherent right of self-government, as well as to other Aboriginal or treaty rights and as a perpetuation of federal government paternalism.
Bill C-79 died on the Order Paper with the dissolution of Parliament in April 1997.
The First Nations Governance Act (Bill C-7)
In 2002, the federal government again initiated a major overhaul of the Indian Act with the introduction of the proposed First Nations Governance Act (Bill C-7).
Bill C-7 was aimed at addressing fundamental aspects of Band governance and would have provided Band Councils with: expanded authorities to develop their own laws (codes) in respect of leadership selection; the administration of government and financial management and accountability; expanded law-making authorities in a number of other subject-matter areas; as well as removal of ministerial oversight powers in several areas.
The initiative was led by the Minister of Indian Affairs and Northern Development and a lengthy consultation process was undertaken with First Nation communities across the country prior to the development and tabling of the Bill. However the proposed Act was met with opposition from Chiefs and provincial/territorial First Nation organizations across the country, as well as from the Assembly of First Nations and died on the Order Paper with the prorogation of Parliament in November 2003.
An Act for the Recognition of Self-Governing First Nations (Bill S-216)
Over the years, the Senate has attempted to introduce several bills to recognize the inherent right of self-government of First Nations. The most recent attempt was Bill S-216 introduced by Senator Gerry St. Germain in May 2006 to promote the recognition and implementation of the right to self-government for First Nations in Canada.
Specifically, Bill S-216 set out a framework for the recognition and implementation of the rights and powers of First Nation governments and institutions through optional, enabling legislation. Under the Bill, First Nations wishing to be recognized had to develop a proposal, including a constitution, which was to be provided in draft form to the Office of the Auditor General (OAG). The OAG would make non-binding recommendations for changes based on an assessment of whether the constitution provided for good governance and complied with the legislative requirements in the Bill. Recognition of a First Nation as self-governing and access to a long list of law-making powers would automatically follow successful First Nation ratification.
Many aspects of the Bill were beyond the scope of Canada’s Aboriginal self-government policy framework, including, but not limited to, the nature and scope of First Nation jurisdiction and law-making powers, fiscal relationships and liability issues.
Bill S-216 achieved Second Reading in December 2006, and was referred to the Standing Senate Committee on Aboriginal Peoples for study. The Bill died on the Order Paper at prorogation of Parliament in September 2007.
Sectoral Legislative Arrangements:
Since the late 1990s, a number of sectoral arrangements under the Indian Act regime have been successfully concluded with some First Nations. The process for sectoral arrangements begins with specific proposals by First Nations wishing to take on new or expanded law-making and/or other authorities within the purview of federal powers under section 91 of the Constitution Act, 1867. Section 91 outlines the areas of exclusive federal jurisdiction and provides the federal crown with exclusive jurisdiction to legislate in relation to "Indians and lands reserved for the Indians".
The aim of sectoral arrangements is to create or expand governance authorities for Band Councils that are not provided for under the Indian Act. Participating Bands remain subject to the Indian Act, except where the sectoral agreement provides otherwise.
The following sectoral arrangements have been successfully concluded with First Nations:
First Nations Land Management Act (FNLMA)
The FNLMA, enacted in 1999, allows participating First Nations to opt out of the 34 land related sections of the Indian Act and manage their land, resources and environment under their own land codes.
The FNLMA is the formal legislation ratifying the Framework Agreement on First Nation Land Management (Framework Agreement). The Framework Agreement requires that First Nations develop a land code setting out the basic rules for the new land regime, including environmental assessment and protection and matrimonial real property laws on reserves. This lays the groundwork for expanded economic development on reserves and business partnerships with the private sector.
With 14 original signatory First Nations in 1996, there are now over 30 First Nations operating under the Act and more than 70 that have expressed interest in opting into the Regime. Budget 2011 committed to reallocating up to $20 million in funding over two years which will allow for new entrants into the Regime.
First Nation Property Ownership Act (FNPOA)
In a pre-budget presentation to the House of Commons Standing Committee on Finance on 15 September 2009, Manny Jules, Chief Commissioner of the First Nations Tax Commission, proposed legislation which he referred to as the First Nation Property Ownership Act (FNPOA).
The FNPOA would allow First Nations to opt out from the reserve land system of the Indian Act; transfer title from the federal government to First Nations governments; and allow First Nations to move to a Torrens land title system.
The proposed legislation has received preliminary support from some First Nations and First Nations organizations, and is being examined in partnership with Aboriginal Affairs and Northern Development Canada (AANDC).
First Nations Fiscal Management Act (FNFMA)
The FNFMA, sponsored by and jointly developed with a number of First Nations, was enacted in 2005 and provides First Nations with the practical tools available to other governments for modern fiscal management by enhancing First Nation property taxation, creating a First Nation bond financing regime and supporting First Nation capacity in financial management.
The legislation supports First Nation economic development and well-being and enables First Nations that choose to use the services of the institutions to participate more actively in the Canadian economy.
First Nations Oil and Gas and Moneys Management Act (FNOGMMA)
The FNOGMMA was enacted in 2005 as optional legislation that allows First Nations to opt out of the moneys management provisions of the Indian Act and provides for the release of capital and revenue moneys for the management and control of the First Nation.
This legislation provides First Nations the option to manage moneys currently held in trust for them by Canada. First Nations can also opt to manage and regulate on-reserve oil and gas activities. Under the FNOGMMA regime, First Nations can choose to opt in to one or both of these options.
The Act was developed in partnership with the White Bear First Nation in Saskatchewan, and the Blood Tribe and Siksika First Nation in Alberta.
First Nations Commercial and Industrial Development Act (FNCIDA)
FNCIDA came into force in 2006 and addresses regulatory gaps for First Nation commercial and industrial development on-reserve by enabling the federal government, at the request of a First Nation, to develop regulations that mirror a provincial regime for specific commercial and industrial development projects on reserve lands.
The Act was developed by the federal government and five partnering First Nations (Squamish Nation, Fort McKay First Nation, Tssu T’ina Nation, Kettle First Nation and Fort William First Nation).
In 2010, INAC amended the FNCIDA through the First Nations Certainty of Land Title Act (FNCLTA) to permit the registration of on-reserve commercial real estate developments in a system that replicates the provincial land titles or registry system. First Nations that make use of the new legislative tool ensure their on-reserve real estate developments benefit from greater certainty of land title, making the value of these properties comparable to similar properties off reserve land.
Recent Reforms of the Indian Act
The Gender Equity in Indian Registration Act (Bill C-3)
On December 15, 2010 Gender Equity in Indian Registration Act received Royal Assent and came into force on January 31, 2011. This Bill amends provisions of the Indian Act that the Court of Appeal for British Columbia found to be unconstitutional in the case of McIvor v. Canada.
The bringing into force of this legislation will ensure that eligible grand-children of women, who lost status as a result of marrying non-Indian men, will become entitled to registration (Indian status). As a result of this legislation approximately 45,000 persons will become newly entitled to registration.
An Act to amend the Indian Act (publication of by-laws) and to provide for its replacement (C-428)
A Private Member's Bill, Bill C-428, was introduced by Rob Clarke, M.P. for Desnethé—Missinippi—Churchill River, on June 4, 2012. Bill C-428 received Royal Assent on December 16, 2014. The Act amends the Indian Act by repealing outdated or antiquated clauses and removing barriers to opportunity for First Nations.
Recent Proposed Reforms of the Indian Act
Indian Act Provisions Dealing with Residential Schools
On June 16, 2010, during the Truth and Reconciliation Commission’s first national event on Indian Residential Schools, the Minister of Indian Affairs and Northern Development announced the Government of Canada’s intention to work with Aboriginal groups and Members of Parliament on a proposal to repeal provisions of the Indian Act that provide the authority to establish Indian Residential Schools and remove children from their homes and communities.
Recent Proposed Stand Alone Legislation to Address a Legislative Gap in the Indian Act
The Family Homes on Reserves and Matrimonial Interests or Rights Act (Bill S-2)
The Indian Act does not address the issue of matrimonial real property rights and provincial/territorial laws relating to this issue cannot be applied on reserves. The result is a legislative gap that affects everyone living on reserves.
Bill S-2, the Family Homes on Reserves and Matrimonial Interests or Rights Act reflects the federal government’s commitment to ensure that people living on reserve have similar rights and protections as other Canadians with regard to matrimonial real property.
While this Bill addresses a legislative gap in the Indian Act, it is not a part of Indian Act reform but a stand alone piece of legislation. This legislative initiative seeks to provide basic rights and protections to individuals on reserves during the relationship, in the event of a relationship breakdown, and upon the death of a spouse or common-law partner when it comes to the family home and other matrimonial interests or rights.
Bill S-2 was introduced in the Senate on September 28, 2011 and builds on the previous version that died on the Order Paper with the dissolution of Parliament in March 2011. The following changes were made to address some concerns expressed by First Nations and further support them in developing their own laws:
- Elimination of the provisions related to the verification process, including the role of the verification officer.
- Lower ratification threshold for the approval of First Nation matrimonial real property laws to a single majority with a set participation rate of at least 25 per cent of the eligible voters.
- A 12-month transition period before the federal provisional rules come into force.