Exiting the Indian Act Requires a Vision for Self-Governance
After having lived under the shadow of colonialism and being governed under the Indian Act for more than 125 years, First Nations are in a period of profound transformation, rebuilding their Nations and the governments that serve them. With new mechanisms being developed to support the recognition of self-governing First Nations, in less than a generation there should no longer be an Indian Act. In its place, there will be dozens of reconstituted and strong First Nations implementing aspects of their inherent right to govern their lands and peoples.
While this is an exciting prospect that seeks to improve the lives of First Nations’ peoples within Canada, there is much work to be done to realize this vision. Over the past four decades, much of the debate around the inherent right of self-government has been academic and legal. It has been about whether, and how, the right exists, and to what extent. This debate, for the most part, has been divorced from the day-to-day life on-reserve. While this high level discussion was necessary to bring First Nations to this point in time, the focus is now shifting to the hard work that needs to take place in each community to actually implement the inherent right.
In order to fulfil the promise of section 35 of the Canadian Constitution, which recognizes and affirms Indigenous and treaty rights, and to meet the minimum standards of the United Nations Declaration on the Rights of Indigenous Peoples, every community, whether treaty or not, will at some point need to turn their attention to the process of transitioning away from the impoverished notion of governance under the Indian Act. First Nations are and will continue to move away from limited administrative governance under the Indian Act, where a band council essentially provides programs and services on behalf of Canada to their citizens with accountability to Canada, towards self-government with a broad range of law-making powers and responsibilities and where accountability is primarily to their citizens.
To be truly self-determining in the modern era – determining the structure of government, its institutions, and how powers are to be exercised – requires a considerable amount of attention. It also puts new, albeit welcome, pressures on community leaders and the citizens of a First Nation to “get it right”. Adding to this challenge is the fact that, very often, the skills required to undertake this work are not necessarily the same as those that were required to create the space for social change and governance reform in the first place.
It is well established that societies that govern well simply do better than those that do not. First Nations are no different. How First Nations rebuild and run their governments will have a significant bearing on the success or failure of each First Nation and the durability of decisions made by those governments. There are, of course, many ways to govern, and research shows us that the quality of governance, much more so than any particular form of government, dictates success. Communities will, therefore, need to critically examine their existing institutions of governance with an eye to establishing or reforming them to meet their needs as self-governing entities. They will need to create institutions that are both legitimate in the eyes of their citizens and recognized by others.
For First Nations that have not already begun this necessary work of governance reform as part of implementing Aboriginal title and rights, including treaty rights, it is safe to assume they will be doing so in the not too distant future. As recent Idle No More demonstrations suggest, the citizens of First Nations are as concerned about the quality of their own government as they are with the federal government. Engaging and building trust within the citizenry of First Nations during this period of rebuilding will be critical to how long it takes each Nation to move beyond the Indian Act, and how successful they will be in implementing it thereafter.
For First Nations leaders, whether elected or otherwise, practical governance and leadership training can be of great benefit during this period of transformation. The Banff Centre’s Indigenous Leadership and Management program recognizes this need with courses designed to provide tools to the new “builders” drawing on the experiences and wise practices of those that have already, or are currently, rebuilding their Nations.
Dr. Tim Raybould, of the KaLoNa group, is faculty with the Establishing Institutions of Good Governance program and a leading expert in negotiating and implementing governance reform with First Nations and establishing First Nations’ institutions.