Comment: The TRC: the Indian Act & democracy
- Paul Chartrand | July 16, 2015
The commission’s recent report is a big one. It is actually a summary of a full report to be released later. It contains much that is to be applauded.
One fairly common myth I was happy to see the TRC debunk was that the Indian Act had created the legal authority for Indian agents to operate the notorious ‘pass system’ which prohibited travel off-reserve for its residents without a pass. The Act may be blamed for many serious wrongs but not this one. The pass system was operated without the authority of any statute law: the Indian agents did it because they could do it and get away with it. The pass system was used for political control of the movements of individuals, and was a feature of the government’s policy and practice to prevent political action by Indians who wished to unite in opposition to the draconian reserve system being imposed upon them during the Treaty-signing period in the 1800s.
The Indian Act is the legal foundation for the IRS but it went far beyond that in authorizing government actions that do not meet the international and constitutional standards that bind Canada today in its relations with Indigenous people. First enacted in 1876 as a consolidation of existing colonial Indian legislation, and with provisions that applied particularly to regions that now comprise Western Canada, the Act still stands as an affront to the contemporary universal human right of all peoples to self-determination. There are and have been good advocates for its abolition but the challenges inherent in doing away with legislation that applies to so many diverse communities across Canada, some with historic Treaties, some with modern Treaties and some without any Treaties, has defied an easy abolition of the Act. One response is the ‘opt-in’ approach of amendments by those Indian Act ‘bands’ that adhere to them, such as the First Nations Land Management Act.
It is a tough job to move from the effects of historic legal, political and economic subjugation of ‘Indians’ to the recognition and implementation of the right of self-determination of all peoples to decide for themselves what is in the best interests of their people. Today in Canada there are many voices who proclaim to know what is best for others, in both the individual and public spheres. If the right of self-determination means that every people should be recognized as in the best position to decide what is its own ‘public interest’ then the issue of self-determination of those who are still governed by the Indian Act can be fairly described as one of ‘competing public interests’. Democracy demands a role for legitimate representation in designing and applying laws that are made to protect and advance the public interest. We know that by and large the current provincial and federal governments that make the laws have little if any legitimacy in deciding the public interest of the Indigenous peoples. The case of the First Nations and of all the indigenous peoples remains a sore upon the body politic of our country.
The prospects for change towards a modern conception of Canada as a truly democratic nation appear rather dim today as more and more it is being realized that Canada is the least democratic of all the modern states, principally according to the best analysts, on account of the centralization of political authority in the office of the Prime Minister, an office that grew out of the constitutional evolution of Canada and that has recently moved beyond the bounds of a constitutionally legitimate and democratic institution.
In the long run we know that politics trumps law. Political action is needed for a true reconciliation of the competing public interests of all of Canada on the one hand and the public interests of the First Nations on the other hand. The TRC has made recommendations for reconciliation on some levels concerning Indian Residential Schools. The political project before Canada now is to seek and find a common truth and build upon that truth a practical, feasible foundation for the reconciliation of competing public interests. It will not be easy.
With a looming federal election, can we see prospects for change?
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- TRC finds Canada committed "cultural genocide"
- Apology without action "meaningless," says AFN National Chief