Why First Nations should support the private members bill to repeal the Indian Act…and why First Nations should oppose it
I. What it is
Bill C-428 is a private members Bill being brought forward by Conservative MP Rob Clarke. The Bill was up for some debate last week in the House of Commons and will probably come up for some more debate in about a month. In general, private members Bills don’t go anywhere unless they have the support of the government. This Bill apparently enjoys the support of the government, so it may move.
My understanding is that First Nations are generally opposed to this Act because its really just about ‘tinkering’ with an Act that everyone apparently agrees should just be abolished. It’s commendable to want to shift discourse, though I’m led to wonder whether what’s actually on the table right now is even worth considering.
II. So what’s so bad about tinkering?
I’m left to wonder, what’s so bad about tinkering? To put it another way, if there is a prospect of removing a particularly bad provision of the Indian Act, why not support doing so, even as an interim measure? ‘Tinkering’ with the Act would not preclude a larger reform initiative (i.e. repeal), and indeed, may even facilitate repeal as provincial and federal governments become more accustomed to First Nations exercising the relatively small degree of self-government that C-428 would enable (by ending Ministerial veto powers).
Then, there is also the question of whether this Act even constitutes mere tinkering, or is something a bit more.
III. Why FNs should support this thing
I have written elsewhere about the extent (or lack thereof) of law making authority under the Indian Act, and especially the power of Minister disallowance under s.82 of the Act, here (http://wp.me/p1AYud-12). Under the Indian Act, the Minister has the right to veto, unilaterally and without reasons, any valid exercise of First Nation law-making authority. It’s a remarkably unjust provision of the Act because it denies First Nations the same kind of control over local affairs that any other government (provincial or municipal) may exercise.
I’ve written elsewhere about free, prior and informed consent under the law and the way that the FPIC standard is often confused with the term ‘veto’ (http://wp.me/p1AYud-1j). Yet on law-making, it is clearly the Crown which holds a veto over First Nations law-making. My point has been this power, a colonial era holdover, is not only inconsistent with the Honour of the Crown, but contrary to the Constitution itself. I don’t believe that any exercise of this power is actually legal.
And lets be clear, section 81 laws are pretty strong. Shin Imai, in his Annotated Indian Act, posits that these laws could trump otherwise valid provincial laws (incorporated through s.88 of the Act) or even other federal laws or regulations (such as those developed under the Fisheries Act). It seems paradoxical to me that First Nations wouldn’t jump at the chance to have greater legislative authorit, even if only as an interim measure while the Indian Act itself is slowly repealed.
One possible way to remedy this situation is to litigate it. A cheaper and faster way to deal with it is to simply repeal s. 82 of the Act. The latter is precisely what section 8 of C-428 proposes to do. To be clear, this is tinkering because it is only one section of C-428 (the Bill alters several other sections of the Act) – but it is ‘tinkering’ with a ridiculously unjust section of the Act.
Moreover, I don’t exactly see First Nations standing up to challenge the validity of s.82. That’s probably because invalidating s.82 would require a costly and uncertain (though as I’ve written before, I don’t think that uncertain) court challenge.
First Nations should give serious consideration to supporting this Bill, due to s.8. There is nothing to preclude doing so while calling for the ultimate repeal of the Act (something else which I strongly support). While that repeal is being negotiated, First Nations would be in the position to exercise a degree of self-government previously reserved only for non-native governments.
IV. Why should FNs oppose
While I think First Nations should consider supporting C-428, I can think of two reasons for First Nations to oppose. The first is that the government will attempt to either remove s.8, or reinsert a power of Ministerial disallowance (veto). First Nations support for the Bill would be coopted by the government, leaving First Nations with a status quo, while government would claim a PR victory. I’m not sure how likely this would be, but I do believe government might be inclined to try. After all, the government stated it supports C-428, but suggested it may want to make a few ‘tweaks’. I suspect one of those ‘tweaks’ is preserving the Minister’s veto power over reserve governance. This is a real risk, and I am not reassured by the government’s statements on C-428 (in fact, in the absence of greater specificity, I’m a bit scared by them)
The second reason relates to other sections of the Act. Here, I’m writing only about s.8 of C-428 of the Act – I’m not addressing other provisions. It is entirely possible that other provisions may create problems for First Nations. I’m not quite sure how, and I haven’t heard any substantive criticism of the Act to date. Of course, I haven’t heard any support for repealing any of these provisions, either.
What I have heard is that First Nations want to repeal the Indian Act and want to be consulted on the process for doing so. It’s a fine counterproposal, but First Nations should ask whether C-428 represents a starting point on such a process. Section 8 would dramatically enhace First Nations powers of self-government in the iterim.
I understand the ‘moral hazard’ argument (if government doesn’t consult First Nations here, then it won’t on more intrusive reforms of the Act). Indeed, more intrusive reforms on First Nations governance is exactly what is happening now with C-27 (the Accountability Act, which I’ve written about https://reconciliationproject.wordpress.com/2011/11/30/first-nations-and-accountability/ and https://reconciliationproject.wordpress.com/2012/10/02/attawapiskat-first-nation-v-canada-funding-over-substance/). In brief, I believe while these reforms are portrayed as being about improving First Nations accountability to First Nation citizens, what they really do is increase First Nations accountability to non-First Nations citizens, taxpayer advocates and other non-First Nations interest groups — effectively diminishing accountability between First Nations and their citizens.
The governments nebulous, and I suspect prevaricating ‘support’ for C-428 is the main reason I would be reluctant to advocate strongly for First Nations support for C-428. I do think First Nations need to at least take a look at the Bill itself, though, and ask whether the ability to exercise a less limited form of self-government (not self-determination) is worth risking a ‘moral hazard’ First Nations already face.