Most of Canada's legislative initiatives go largely unexplained to grassroots Indigenous peoples - community members and leaders alike. This Harper government, in particular, has done everything it can to mislead, misinform, distract, confuse and outright lie to First Nations about its intentions with regards to the Indian Act. More so, they have done very little to explain the implications of bills to those who will be impacted - First Nations community members.
Most will recall Prime Minister Harper's infamous words at the so-called Crown-First Nation Gathering this past January: "To be sure, our Government has no grand scheme to unilaterally repeal or to unilaterally amend the Indian Act."
Yet, here is the extensive list of government bills currently before Parliament which will unilaterally repeal or fundamentally alter the Indian Act in significant ways:
Bill S-8 Safe Drinking Water for First Nations Act
Bill S-207 An Act to Amend the Interpretation Act
First Nation Property Ownership Act
It would make this blog far too long to review all of the sections, but communities should be aware of several problematic areas. The Preamble (which is just an introduction and does not contain any law) does give an important indication of the two theoretical underpinnings of the bill:
(1) The bill has an individual-rights/interest focus versus an Indigenous communal, holistic approach;
The bill focuses on the best interests of the individual child as opposed to the collective, inter-connected interests of the entire family (including the child), extended family, community and Nation. It is this very approach that led to residential schools, 60’s scoop and the current over-representation of our Indigenous children in the care of child welfare.
The bill focuses everyone’s attention on the particular culture of the First Nation – which is to be “considered” by a judge in a marital dispute over property. However, there is no deference for First Nation legal or governance jurisdiction over property disputes over their own territories. This is very similar language to Supreme Court of Canada cases which have essentially frozen Aboriginal rights in “pre-contact” times and only protect those rights which the court considers “integral” enough. In this case, non-Indigenous people will be judge and jury over what our culture is, which parts of it are important, and whether it is relevant to property issues on reserve.
The general focus of the bill is to enact provincial-like rules with regard to the divison of marital property on reserve after the break-up of a marriage or common-law relationship. This essentially means that each spouse is entitled to half - the house, land, etc. However, these provincial-like rules are not optional - they are mandatory. While the act considers them to be interim rules, the fact is no funds have been allotted for governance, law-making or enforcement and thus for many First Nations, they will remain permament.
The bill also contains the following provisions:
(1) The Status of Women committee who will be studying the bill should reject the bill in its entirety. The entire bill conflicts with both Indigenous laws and Canadian law and cannot be saved.
(2) Canada should respect its own policy position that First Nations have a right to be self-governing which is constitutionally protected within section 35. This would correspond with the right to be self-determining as per Article 3 of UNDRIP.