Repealing the Indian Act: What to Keep; What to Discard

The Indian Act is one of the oldest pieces of legislation in Canada. It was first – the first version of it was enacted in 1868 just a few months after Confederation and it’s been in place almost unchanged in its essence since then, and I’m speaking to you in 2016, and there’s still a statute on the books called the Indian Act. It contains some obsolete and even offensive material that really should be scrubbed from the books. And I want to talk about the question of whether or not it’s feasible to simply repeal the Indian Act – to just get rid of it, to just abolish the Indian Act. And I want to say this about it:

There’s a couple of things in the Indian Act that are continuations of the policy that was laid down in the Royal Proclamation of 1763. Now, the Royal Proclamation of 1763 is the original constitution of Canada. It set up a country that was based on certain fundamental principles. Right there in the Royal Proclamation of 1763 is the principle of democracy, the principle of the Rule of Law, and, very importantly, respect for the lands of the Aboriginal peoples. So a lot of Canadians don’t realize that one of the fundamental points of the Canadian constitution going right back over 250 years, is respect for Aboriginal lands. It’s right there at the heart of the constitution.

Now, that principle of what’s called inalienability – you cannot alienate Aboriginal lands – that principle was carried from the Royal Proclamation into the Indian Act, so there’s certain essential clauses of the Indian Act that say Indian lands that — in the context of the Indian Act, we’re talking about Indian reserve lands — Indian reserve lands cannot be sold or alienated without the full consent of the First Nations. And that has resulted that these tiny parcels of land are nevertheless still in Aboriginal ownership often 100 or 150 years after the reserve lands were set aside. Now, if the Indian Act was simply abolished, one question that comes up is whether those remnants from the Royal Proclamation of 1763 would also be abolished.

Perhaps a good suggestion would be to replace the Indian Act with a revitalization of those principles from the Royal Proclamation of 1763 – a reaffirmation. The statute could simply be called the Reaffirmation of the Aboriginal Principles in the Royal Proclamation of 1763. Rather than the Indian Act, it could be given a more acceptable title but it would need to carry forward the essential policies of the Royal Proclamation so that the lands of First Nations are not inappropriately alienated without their consent. That’s the only thing probably that’s worth saving in the Indian Act. I would think that virtually everything else in the Indian Act could go.

There’s taxation provisions in the Indian Act that are valuable to First Nations. Those taxation provisions also derive from the Royal Proclamation of 1763 because one of the ways to avoid alienating land is to prevent them from being seized and sold by somebody who has taken a mortgage on the land or somebody who is claiming some kind of money in debt or from taxation of course, that’s the big one. So people that have land over the long long term, they may lose their land at a tax sale and Indian Lands cannot be sold for taxes so that’s the origin of the tax exemption for Aboriginal people and it’s in the Indian Act. Again, if there’s a revitalization of the Royal Proclamation of 1763, it needs to carry forward those protective provisions preventing taxation of Indian lands so that they cannot be lost at a tax sale.

So, other than those things, the protection of Indian Lands from alienation and the protection of Indian Lands and their property on Indian Lands from taxation by other levels of government, the Indian Act could be repealed as long as those crucial and essential provisions are replaced by something else that’s more appropriate. Thank you.

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