November 2, 2001 Halifax Herald
First Nations problems not fault of Indian Act
First Nations problems not fault of Indian Act
On October 30, 2001, Robert D. Nault, Minister of Indian Affairs and Northern Development, had an opinion article published in this newspaper touting the benefits of his proposal to replace the Indian Act with a "First Nations Governance Act." The contents infer that the present Act is responsible for the massive problems Canada's First Nations Peoples suffer. As an Indian Act expert (14 and a half years employed with the Department, the last five as the District Superintendent responsible for it's administration in Nova Scotia), I can emphatically state that such is not the case.
The Act is an inanimate piece of paper, incapable of doing anything by itself. Like any law, it takes people to give it life. Those responsible for the Actís administration opted to give it life by carrying out the trust and other legal duties it's provisions mandated in careless disregard. Also, from it's enactment in 1876 to recent times, the Department used the Actís provisions to try to destroy First Nation Civilizations by assimilation.
The vast majority of allegations of misuse are well documented by the Department's own records. These offer rock hard proof that scads of past racist bureaucrats and politicians intentionally manipulated and perverted the provisions of the Act to oppress Registered Indians and alienate their land interests. This dereliction of duty has created for Canada a legion of legal problems that will eventually cost the taxpayer untold billions.
The case of the Pictou Landing Band versus the Crown provides an excellent example of just how expensive it can: The case arose when Band members were deliberately misled by Departmental officials into consenting to permit the province to allow Scott Paper Company to use Boat Harbour as an industrial effluent lagoon.
To acquire Band member consent for the transfer of Riparian Rights, senior bureaucrats and politicians provided data that led them to believe that the Harbour would not be adversely affected by the effluent and would still be usable for fish farming and recreation. For failing to faithfully carry out its trust duties, Canada paid the members of the Pictou Landing Band $35 million.
Now, to rebut Nault's financial accountability commentary: In the late 1960s, the Department got into devolution of programs to bands. Band councils were funded to deliver social entitlement programs to band members. Incredibly it did not first require Councils to adopt band constitutions or bylaws to govern expenditures and administrative procedures. Thus, from the beginning, Band governments had only Departmental rules prepared by amateurs to guide them.
In contrast, federal and provincial governments have the Constitution to direct how they manage federal and provincial affairs, and municipalities have charters to guide theirs. By not assuring that Band governments had such legal necessities in place beforehand, the Department set back the prospect of responsible self-government for First Nations by decades.
In the final analyses, the Department cannot use a claim that the legal tools were not available for it to help bands develop a legal basis to operate under, because the current Act has sufficient leeway to do so. What prevented progress was the fact that the department's bureaucrats didn't have the necessary expertise to assist them in drafting suitable bylaws.
Band Councils and the Indian Act were not responsible for any of the before-mentioned. Bureaucratic incompetence, racism and political interference were. New legislation is not needed to fix existing financial problems. What is needed is a more responsible approach to it by Indian Affairs - in plain English, it needs to clean up it's own house first. (An in-depth look into these matters is presented in We Were Not the Savages.)
In spite of the before-mentioned, I don't oppose the renewal of the Indian Act, in particularly the elections and governance sections. However, I do oppose refurbishing more than a few sections at a time - or repealing any sections that protect legal rights.
The reason I prefer the piecemeal approach is that the Act is very complex and is, in its entirety, incomprehensible to the vast majority of First Nations Peoples. To emphasize just how complex it is I offer these:, Without first taking a great deal of their time to educate themselves, ninety nine percent of the countryís lawyers would be hard pressed to use it. Further, if a snap Indian Act test was called among Indian Affairs employees, well over 90 percent would fail.
Mr. Nault, slow down. Please accept the fact that paper alone won't solve our problems. Many variables need to be taken into account when mapping solutions, high among them the performance of your own department and the affects of racism. Also, the consultation process is badly flawed. For instance, a great deal of the 6000 people consulted so far were non-status - not affected by the Indian Act.
It would be advisable to keep in mind that First Nations have been deprived of sovereignty and the right to self-government for centuries. We want that God-given right back, but we want to do it right. Haste and ill-advised changes will not bring satisfaction - only more pain.
Daniel N. Paul