Beating the Drum on the Indian Act

 

Beating the Drum

Beverly Blanchard is an Ojibway First Nation from Northern Ontario.  She holds a degree in Economics. During the last twenty-two years, she has worked as a consultant to First Nation and Inuit organizations in a variety of disciplines including: homelessness, suicide prevention, violence prevention, childcare, HIV/AIDS, women’s issues, business planning, and economic development. She has also designed and delivered Aboriginal awareness and stress management workshops to Federal government employees. Currently, Ms Blanchard is a life strategy coach, author and energy healer in Ottawa.

The Indian Act

Clarification on the scope of Bill C-45 and land ownership

By Beverly D. Blanchard
True North Perspective

01 March 2013 — When Idle-No-More gained prominence in the media in the later part of 2012, there was much discussion about the Indian Act. Many cited that the legislation was at the root of many of the problems in today’s First Nation communities.

Some called for it to be abolished. Others wanted the status quo. Still there were others who were looking for broad sweeping changes and an overhaul. But what exactly is the Indian Act? And how does it impede economic growth?

Prior to 1867 most relationships between the Imperial government and First Nations were through Treaties. These historic treaties were based on mutual need and advantage, usually in the area of military and trade. In addition, these treaties reflected the independent governing status of the First Nation tribes. This is the reason that you often hear current First Nation leaders stating that there is a need for nation to nation discussions.

These historic treaties are still viable contracts, however, many of these treaties are subject to interpretation and the recording keeping of the 1700s and 1800s was notoriously sketchy. At the time of most of these treaties, there was no formalized framework in place to ensure the administration and implementation of their provisions. However, during the late 1700s there was the establishment of an Indian Department to deal with grievances and manage relations with First Nations. In other words, keep the peace and ensure the way for settlement of the land.

In 1858 the Imperial government announced that it would cease funding the First Nations. In 1860 the responsibility for funding First Nations was passed to the Canadian government, and the file associated with the First Nations became a federal responsibility that resulted in the creation of the Indian Act. Indian Affairs become a branch of the Department of the Interior and it stayed in this department up until the 1930s. In 1966 it became its own department.

Contrary to popular belief, the Indian Act was not a new piece of legislation when it was drafted and enacted in 1867. It was actually a consolidation of pre-confederation legislation, policies and practices which were already being carried out through an archaic and costly existing Indian Department.  Although the Indian Act has become the legislative framework for the managing and administration of First Nations, it was never specifically written to respond to treaty obligations.

Although there have been amendments over the course of its life, there are key sections of the Indian Act that have impeded economic growth. One of these deals with collateral and the securing of loans. That said, there have been some First Nation communities who have developed viable businesses despite the legislation by using venture capital and partnering with non-Aboriginal businesses in exchange for a share of ownership in the business or by generating capital from their own sources.

Another one of these sections deals with the leasing of land to a third party. As part of their economic development, there are a number of reserves who are leasing land to a third party for retail or other economic endeavours. Up until 1988, most First Nations could not legally lease their lands to non-First Nations without first surrendering the land (including all rights and interests) to the Crown. That year a new concept called ‘land designation’ was introduced through an amendment to the Indian Act which allowed a First Nation to lease part of its reserve without having to completely surrender their rights and collective interest.

Although this was a welcomed amendment, it came with a few problems. For reserves that are leasing land to a third party, the Chief and Council were required to hold a referendum on the proposed project. If the majority of voting band members were in favour of the proposal, the project went forward. The problem however was the legislation required that the referendum could only be legal if all eligible band members voted. If however only 900 band members voted in a community with 1000 eligible voting members then the project could not proceed and another vote was required. In addition, there was a significant amount of red tape through the bureaucracy at Indian Affairs that was also required.  

What sparked the Idle No More movement was the Harper government’s amendment to the section of the Indian Act dealing with the leasing of land to a third party. Although there were many First Nation communities that wanted the proposed changes of Bill - C-45, there was no formalized consultation. Bill C-45 removed the restrictions and provided greater flexibility for First Nations to act on time-sensitive economic development opportunities while ensuring they maintained ownership of those lands. Any First Nation that does not want the process to be simplified and accelerated is still free to impose its own restrictions upon land designation and land development.

Next time I will take a look at some of the cultural aspects of First Nation communities.  In the meantime, for those who are interested in some of my other writing check out my new blog at: www.beverlyblanchard.blogspot.ca

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