Dismantle The Indian Act - GTEC Reader

“Toppling the Indian Act Tree” is a chapter in From Where I Stand by Jody Wilson-Raybould, published here with permission of UBC Press, with an Introduction and Concluding Comments by Arden Henley


The news of bodies being located in unmarked graves at the sites of former residential schools– 215 in Kamloops, 700 at the Marieval Residential School in Saskatchewan and 182 at St. Eugene’s Mission School in Lower Kootenay reminded Canadians of the profound and, as yet unreconciled, injustice we continue to visit on Indigenous peoples.

Previously, this injustice had become up close and personal through my relationship with former Minister of Justice and Attorney General and Member of Parliament for the Granville riding, Jody Wilson-Raybould. My wife Mary and I met Jody early in her career as a federal politician in our riding and have stayed in touch ever since. I remember feeling so proud and hopeful when she was introduced as Canada’s first Indigenous Minister of Justice and Attorney General in the newly elected Trudeau cabinet in 2015. By February 2019 Wilson-Raybould had resigned from cabinet over the SNC-Lavalin affair.

Without re-telling the story of this sorry chapter of Canadian history, suffice it to say, it was a replication of the country’s pattern of oppressing its Indigenous peoples, in this case with the ironical twist that Wilson-Raybould, as the Minister of Justice, had been upholding Canada’s own rule of law in the face of pressure from one of Canada’s major corporations and the Prime Minister’s Office itself. It cost the country the services of two extremely capable women leaders with the resignation of Treasury Board President, Jane Philpott in support of Wilson-Raybould.

Perhaps, most poignant in this affair was also the missed opportunity to respect and learn from Indigenous tradition. Wilson-Raybould is the former BC Regional Chief and, equally importantly, holds the title and responsibility of Hiligaxste in the system of her people, the We Wai Kai Nation of British Columbia. The Hiligaxste’s responsibilities include the healing and training of leaders.  One of the Hiligaxste’s jobs is to lead the Hamat’sa, or the chiefs, into the Big House. The Hiligaxste’ can be defined as one who corrects the chief’s path and shows them the way. Symbolically, the power of the Hamat’sa is tamed, tempered then propelled. Clearly, our Prime Minister and through him the whole country could have benefited from having the way shown.

While she was the BC Regional Chief, during her tenure in the federal cabinet and as an Independent Member of Parliament Wilson-Raybould has urged government to dismantle the Indian Act.  When the news broke confirming the unmarked graves of 215 children at the Kamloops Indian Residential School at Tk’emlúpsteSecwépemc, Wilson-Raybouldagain questioned the Liberals in Parliament about their commitment to dismantle the Indian Act, the legal framework that led to the deaths of residential schoolchildren and continues to reinforce the colonial relationship between Canada and Indigenous people today.

In Toppling the Indian Act Tree, an address to the First Nations-Crown Gathering on January 24, 2012Wilson-Raybould outlined the way forward in dismantling the Indian Act. She argued that it is one of the steps that we must take to walk through the postcolonial door to a world of genuine reconciliation and more robust Indigenous economic development. Opening this door requires the federal government , in partnership with Indigenous Peoples, to dissolve the legislative and policy barriers to Indigenous Nation rebuilding in Canada. Dismantling the Indian Act is at the heart of reconciliation.

From both Indigenous and historic perspectives, the Indian Act is an complex issue. It has a racist and colonial history, one that is associated with initial efforts to assimilate Indigenous peoples altogether, the oppression of women, paternalistic management of the day to day lives of Indigenous peoples and the suppression of Indigenous customs such as the potlach on the west coast. It continues to be seen by most Indigenous leaders as a barrier to full self-governance. However, what makes abolishing it complex is that it does recognize the relationship of the federal government with Indigenous nations and the government’s fiduciary obligations to Indigenous peoples. It has been amended on numerous occasions and repealed and re-introduced in a new form, but widespread agreement about how to completely replace it has yet to take place.

Toppling the Indian Act Tree

Reprinted by Permission of the Publisher, UBC Press

Our people are in a profound period of transition and of Nation building or rebuilding. We are, in fact, making economic progress. It may not be widely known but a significant economic transformation has already begun. The economists at TD, with the support of the Canadian Council for Aboriginal Business, estimate that the combined income of Aboriginal households, business, and government sectors reached $24 billion in 2011, double the $12 billion tally recorded in 2001. By 2016, they estimate this overall economic pie could eclipse $32 billion – or roughly 50 percent above last year’s estimate. If achieved, the total Aboriginal income would be greater than the GDP of Newfoundland and Prince Edward Island combined. This is good news. We are trending in the right direction.

But truth be told, we can and must do much more. Any optimism and progress are overshadowed by the deplorable conditions faced in many of our Nations – particularly in the North – where such encouraging growth numbers mean nothing in the face of crippling poverty and desperation. This is totally unacceptable. We need to collectively find ways to ensure no Nation is left out or behind and that all our peoples are supported. Strengthening First Nation economies will certainly help. It will also strengthen the Canadian economy and provide opportunities for not only our people but also for other Canadians.

Canada is emerging out of one of the worst global economic crises in modern history but faring better than most industrialized economies. When the crisis began and governments implemented “economic stimulus” programs, many of our Chiefs reflected that their Nations’ economies had been in a state of crisis for years and were definitely in need of stimulus. One of the biggest stimuluses for us must be governance reform. Societies that govern well simply do better economically, socially, and politically than those that do not. Good governance increases a society’s chance of meeting the needs of its peoples and developing sustainable long-term economic development.

Within Canada, the structure and institutions of non-Aboriginal government are well established within a sound legal framework. Today, most Canadians just take for granted the way their economy works and the legal and political framework that supports it.

Contrast that to the governments of the people whom the Chiefs in this room represent. While historically we were, of course, self-governing, more recently we have been under federal administrative authority and our peoples and our lands and consequently our economies governed separate and apart from non-Aboriginal Canada in accordance with the Indian Act – neither an appropriate governance framework for First Nations People nor for any people, for that matter.

During the colonial period, band government was based on models developed by the federal government to deliver federal programs and services. The powers of our governments were very limited. The effects on us were unfortunate. The Indian Act system promoted an impoverished concept of government. “Government” for us became little more than managing programs and distributing limited resources. The concept that government should be about making laws, resolving disputes, and generating the means to pursue a collective vision was smothered under the need for federal programs and services and the fact that the local “band office” was the instrument to deliver them. This is not self-government. This is not a system that supports strong economies and can provide a sound investment climate.

Thankfully, this is changing. And why is this changing? Because there are First Nations leaders who have supported and led sectoral and comprehensive self-government initiatives to replace governance under the Indian Act, to create the legal and administrative framework of self-government that other Canadians take for granted and to establish a sound investment climate. This includes the raising of local revenues and financial management, the building of public infrastructure and facilities and the raising of capital, and the management of land and resources and community planning.

Today, there is now a general consensus that supporting First Nations’ developing strong and appropriate governance – or self-government – is simply the right thing to do. And why is it the right thing to do? Because Canada’s economy and First Nations, and our collective futures, are all intertwined. If we want to unlock our economic potential, it is needed.

Ironically, while we all may now agree that we need to move away from the Indian Act towards self-government, I do not need to tell anyone in this room what a challenge this has become. The reality of our post-colonial transition is that short of a court saying we have rights over land and the right to govern ourselves, our people have to vote to remove Canada from its paternalistic role in our lives. This is because under the Indian Act, we are still wards of the state. Consequently, Canada has a fiduciary responsibility to our people and cannot simply legislate the Indian Act away in favour of recognizing self-government until our people vote in favour that it is okay to do so – legally challenging, politically perverse but nevertheless true.

No other segment of Canadian society has had to decolonize and then go through this process to establish basic structures of governance to create the tools for economic and social development. However, today we have the tools – section 35 and the United Nations Declaration on the Rights of Indigenous Peoples (minimum standards for engagement with our people). The challenge now is to translate the promise of section 35 and the UNDRIP into practical benefits on the ground in our communities.

While our leaders have advocated and continue to advocate for change back home on reserve, many of our people are afraid and reluctant to vote “yes” to self-government. Given the colonial legacy and the impoverished concept of governance under the Indian Act, they simply do not trust their existing “band” government nor, if we are being frank, your government, for that matter. This is now one of our biggest challenges.

For change to occur each of our communities must go through our own processes of empowerment and local transformation, through healing, rebuilding, capacity development – call it what you may. Our colonial period must officially end. As this process of decolonization continues to unfold, we all have a responsibility to support what is essentially basic community development work. We must all not add fuel to the fire by trying to circumvent this process.

While we are making progress and while, as you said today, Mr. Prime Minister, your government is making a down payment on our long-term goal of self-government, we must be mindful that it is a down payment on the “right house,” one where we make choices collectively, where our Nations lead the change to uproot the Indian Act tree and knock it over, leading to full self-governance for us through federally imposed initiatives.

So, with all due respect, Mr. Prime Minister, on this point we must ask that you please rethink your government’s approach set out in a number of recent bills introduced or proposed affecting our peoples, which seek to tinker around the edges of the Indian Act in a piecemeal way, with federally imposed solutions to our issues and in advance of our Nations having first had the opportunity to address core governance reform. Unfortunately, this attempt to legislate aspects of self-governance for us is, to put it bluntly, and again I say this with all due respect, an exercise in neocolonialism and, as history has shown, will not work, however well intentioned. The approach is fraught with legal and political problems at many levels. This process of change has to be led by our people to be legitimate.

There is still a need, however, for federal legislation that is First Nations-led, legislation developed jointly with our Nations. Not least we need governance recognition legislation, so that when a Nation is ready, willing, and able there is an efficient mechanism so it can move away from the Indian Act and establish its core institutions of governance without the federal government acting as gatekeeper and without interminable negotiations that take years to conclude. This is the foundational work we need to undertake and reconfirm determining citizenship in our Nations, how we select our governing bodies, how we make laws, and how our governments are accountable to our people. This is really the starting point to all other governance reform, including creating the legal and administrative framework to support economic development.

Recognition legislation to achieve this goal is not a new idea but perhaps finally an idea whose time has come. It was recommended by the Penner Committee on Self-Government. It was recommended by the Royal Commission. It has been supported by our Chiefs. Frankly, it just makes good sense. This will get at the roots of the Indian Act tree – we need core governance reform. When we do, the Indian Act tree will topple over. No gaping hole, Mr. Prime Minister, but strong and self-determining First Nations.

However, to move our governance agenda forward, it will take leadership, by you and by us. We cannot simply say it is too difficult or too big, if we are truly serious about economic and social development and the advancement of our peoples. It will also take financial resources, resources that can come from our Nations having fair access to our lands and resources and revenue sharing with the provinces. There will also need to be new investments made by your government. We know your government rejected the Kelowna Accord, but it is that level of investment that is needed – well-planned out and tied to solid vision of a post-Indian Act world, investments that will ensure quality education and provide for improved individual health. In fact, what we really need is a new fiscal relationship and a commitment to deal with issues such as own-source revenue. We need to ensure our Nations have the resources to provide comparable level of services as other Canadians expect and receive.

In conclusion, our peoples are beginning to take back control of our lives. Where governance reform has been successful, whether through sectoral or comprehensive initiatives, economic opportunity has followed. I, for one, like many of my colleagues, am excited about our opportunities. We have the solutions – and we need to build on our success. But let us not forget, unlocking the economic potential is not the end in itself but is, rather, a means to an end, that end being healthier and more prosperous First Nations communities, with our people enjoying a better quality of life with practicing and thriving cultures. We must never lose sight of the objective.

And finally, Mr. Prime Minister, this Gathering provides you with an opportunity to demonstrate that you are a true Canadian and committed to undertaking the necessary steps to support OUR Nations along their journey. Our people are watching. Canadians are watching. After Attawapiskat, the world is watching. Canada’s reputation – our reputation as a country of caring and compassionate peoples and as a leader internationally – is at stake.

We need direct leadership from you to smash the status quo and ensure that Aboriginal People in this country are truly engaged in, and benefitting from, the economy as much as anyone else.

Our people and all Canadians expect you and your government to do the right thing.

Concluding Comments

In addition to the ethical, nation building and economic imperatives of dismantling the Indian Act, I would add that Indigenous reconciliation and walking with Indigenous peoples through the post-colonial door is a vital element in our response to the climate crisis. Indigenous peoples have taken care of the Earth for many generations up to and including the agricultural, industrial and digital ages all of which have increasing impacted the environment. We have much to learn from Indigenous peoples about the sacredness of the environment and how to live in harmony with it.

In the fallWilson-Raybould’s next book “Indian” in the Cabinet: Speaking Truth to Power will be released. It tells the story of why Wilson-Raybould got into federal politics, her experience as an Indigenous leader sitting around the Cabinet table, her proudest achievements, the very public SNC-Lavalin affair, and how she got out and moved forward. I have no doubt that this book will have more to contribute to our understanding of some of the most critical issues of our time.