Beyond the Act: Indigenous Advisory Process for Reform

The Indian Act has gone through many amendments since its inception nearly 150 years ago with the unsuccessful goal of “getting rid of the Indian problem” as quoted by Duncan Campbell Scott, who served as Deputy Superintendent of Indian Affairs from 1913 to 1932.

When the 1969 White Paper on Indian Policy came out under Justin Trudeau’s father, Pierre Trudeau, it attempted to rescind the Indian Act completely which would result in First Nations becoming regular citizens, essentially disenfranchising us from our distinct legal status and ultimately our inherent rights to which the federal government has a fiduciary duty to uphold. The White Paper was a loophole for the government to wipe its hands clean of their fiduciary duties to First Nations. Thankfully the Indigenous leaders of the day fought against it, and it was shelved.

As much as the Indian Act is an oppressive, discriminatory hindrance and barrier to First Nations rights, many First Nation’s people feel that it also serves as a protective shield. Rescinding the Indian Act without something to fall back on such as a self-government agreement for a First Nation, would result in First Nations rights holders having to deal directly with the provinces and territories rather than with the federal government in a government-to-government relationship.

Since the failure of the White Paper, the Indian Act has been chipped away at piece by piece like the carving of an old soap stone that one day might just crumble. Today, the government is finally realizing that no one is better suited to make changes to the Act than First Nations people themselves who have been calling for specific amendments to the Act for decades. The change must be Indigenous led, “nothing about us without us” and this is part of the reason why Indigenous Services Canada has recently set out the establishment of an Indigenous Advisory Process (IAP) to guide and inform the review of outstanding sections of the Indian Act that need reform. The IAP is part of the government of Canada’s comprehensive reform process. The intention of the IAP is to address inequities within particular sections that now need to align with UNDRIP in efforts to become a more reconciliatory government.

The comprehensive reform consultation process is an attempt to transition away from the Indian Act. This was first triggered by the Descheneaux case where injustices in the Act relating to discrepancies in First Nation status registration were called out. With consultation plans in place in 2018 and 2019, the consultation process may have taken a bit of a back step when Covid struck because only now was there a recent announcement made by the Minister of Indigenous Services, Patty Hadju. The announcement states that the IAP will begin its review of the second generation cut off rule, where a person may lose their right to First Nation status registration under the Indian Act after two consecutive generations of parenting with a person who is not entitled to registration themselves (non- status).

Second generation cut off was introduced in the 1985 amendments to Bill C-31 under section 6(1)(f) and 6(2) and is a classic example of how solving one problem can lead to another host of problems. To simplify this equation, which is quite similar to the splitting of chromosomes when determining birth genetics, I will use my immediate family as an example. I for instance am considered to have section (6)(1) status which means that my children are section 6(2) status because their father is non status. If one of my section 6(2) children has a child with a non status person, my grandchild will lose his/her status altogether.

Its simple math then that a 6(2) status and a 6(2) status having children adds up to their children being a full 6(1) but its not that simple. When you include children who are customarily adopted, sixties scoop survivors returning to their territory to find out more about their identity, and those seeking to become reinstated after being designated wrongly under section 6 of the Act (which poses its own set of challenges including having to meet certain criteria based on a person’s year of birth), the math can become complicated. Furthering the problem is that it is difficult for some First Nations members to prove their status due to issues with identification. Those who are rightfully First Nations may not be able to receive benefits and services because they can’t prove it on paper.

With recent shocking developments in acts of “pretendianism”, I imagine that the IAP’s undertaking of section 6 will factor in this controversial discussion. While blood quantum is not necessary to determine status, it is important to be able to quantify ones First Nation’s ancestry through their lineage. Where I come from for instance, I always introduce myself and who my grandparents last names are so that people in the community can know which family line I come from.

In its analysis of section 6, the IAP will most likely have to grapple with the relevant influx of First Nations now opting into self government and opting out of certain sections of the Indian Act through other methods of legislation whereby First Nations are taking control of their own administration, one being their membership. It begs the question; will the IAP recommendations result in the decision-making power being in the hands of the First Nation’s to determine who has status and who doesn’t? Or will a more affirmative rights-based approach be taken to indicate status such as a Powley Test for First Nations?

This leads directly into the next issue that will be reviewed under the IAP which is the voting thresholds under section 10 of the Indian Act. The Act states that “a band may assume control of its own membership if it establishes membership rules for itself in writing in accordance with this section and if, after the band has given appropriate notice of its intention to assume control of its own membership, a majority of the electors of the band gives its consent to the band’s control of its own membership.”

The IAP review will most likely address the need to differentiate the variances between citizenship, registration, and membership. The criteria requirements, recognition and affirmation that comes along with those terms will need to be interpreted among other methods of how to strike section 10 of the Act and replace it with something that is more in line with the current times where First Nations are regaining sovereignty by taking back control and administrating their own programs and services. Whether this be through self government or implementing their own laws they may have the ultimate authority to recognize who is eligible as a registered member and keep track of their own membership lists rather than the lists being under lock and key with the federal government. For this to occur effectively, membership privacy must be protected, and the nations will need to first have appropriate records management in place for safe and secure storage of personal information. The government should be providing the resources to ensure that these mechanisms, and the capacity to maintain them, are accomplished. There must also be a reasonable and navigable complaint process available to First Nation members if their Nation is not conducting programs and services on their behalf accordingly.

IAP’s have been a solution for statutory and regulatory decision making for some time now, yet this is the first time it will be set up to take a good hard look at the Indian Act. It is important that the Minister ensures the IAP is comprised of a diverse demographic of impartial First Nation people from across the country who are well informed on the issues at hand. Ultimately, the Indian Act will eventually become a powerless document replaced with functional up to date Indigenous legal orders that suffice with the common law. The entire Act itself is inconsistent with UNDRIP and, in fact, is the complete opposite of what UNDRIP stands for. Now that Canada has adopted UNDRIP, they are mandated to abide by the declarations that outline Indigenous rights, and the Indian Act should be the first order of business.

Written by Katłı̨̀ą (Catherine) Lafferty