Ailing Indian Act is in desperate need of overhaul

Federal cabinet realignment comes at a critical moment

It came as a surprise. None of the First Nations or Metis leaders were aware that the summer calm would be broken by a history-making event like the splitting of Indigenous Affairs into two separate entities with two cabinet ministers. It is an interesting scenario; both of the ministers — Carolyn Bennett and Jane Philpott — are medical doctors, and the patient is in need of serious rehabilitation.

The initial reaction from the Assembly of First Nations and the Federation of Sovereign Indigenous Nations was cautious optimism.

While the announcement came as a surprise, a closer look reveals that it was overdue. The Department of Indigenous and Northern Affairs has been steadily losing in the courts and tribunals. By his count, Bill Gallagher, who wrote Resource Rulers, the score now stands at about 250 lost cases for the department.

The Indian Act is not compatible with the United Nations Declaration on the Rights of Indigenous People, the Canadian Constitution, the Charter of Rights and Freedoms or the treaties. The department has lost so many cases it was effectively backed into a corner.

In the past the department either ignored cases that revealed its unequal treatment of First Nations or it worked around them. Departmental staff were also terrified of being sued for breach of trust, so they erred on the side of caution, making any legal dealings unwieldy and paternalistic.

Cindy Blackstock with the First Nations Child and Family Caring Society beat them soundly at the human rights tribunal, charging that the department was grossly underfunding child welfare. The case set a precedent and other programs such as education, welfare, and other social programs could all be found seriously underfunded.

Now it is up to Philpott, the former minister of health, to take on the provision of services to First Nations people while Bennett concentrates on negotiations and relations with First Nations leaders and organizations.

The prime minister referred to the department as a “creaky old structure,” but it’s more than that. It is a colonial institution with a colonial mentality. Its corporate culture is paternalistic, controlling and negative toward treaty and Aboriginal rights. The mandate of the department is to administer the Indian Act, a piece of legislation at odds with the times.

Philpott has her work cut out for her. The department chronically underfunds First Nations to the point that there is a serious discrepancy in funding provided provincially. First Nations do not have budgets; they are given allotments from the department and forced to make do with what they have. There are no real funding formulas; it’s all based on what is available and what political games they can play. The departmental staff show up at band offices at the end of March with funding agreements. The band is given the choice to take it or leave it. Of course the clock is ticking toward the next fiscal year and the pressure is on. Invariably the funds are accepted because the First Nation has no choice.

Philpott has to bring funding up to parity and live up to the treaty promises. She has to change the corporate culture of the department and either pension off the old colonial staff or reassign them to other posts.

Bennett also inherits a moribund state of affairs. Negotiations for land claims, comprehensive claims and legislation have all ground to a halt. The problem lies with the federal negotiators who use land claim agreements and other agreements to terminate First Nations’ rights. First Nations negotiators can’t accept the loss of their rights, so the negotiations reach an impasse and nothing goes forward.

In Saskatchewan we were able to negotiate the landmark treaty land entitlement agreement because the bureaucrats took a back seat and the negotiations were driven by politicians and the treaty commissioner, Cliff Wright, who came from the private sector. There was also a political will to get an agreement.

Now it’s crunch time. The First Nations are looking for action and justice. Prime Minister Justin Trudeau has assigned two medical doctors to solve this impasse. Will they be able to make surgical changes, or does the patient need assisted suicide?