The debate over Indian Act reform
A July speech by National Chief
Shawn Atleo to the Annual General
Assembly of the Assembly of First
Nations has once again pushed the
debate about Indian Act reform and/
or abolishment to prominence.
The notion of repealing and
replacing the Indian Act,—the Act
being referred to in the 1996 Report of
the Royal Commission on Aboriginal
Peoples (RCAP) as “legislated paternalism,” — is not, in and of itself, newsworthy or controversial—support for
the Act among both indigenous leaders and the federal government is
weak at best.
In large part the concern of all
involved revolves around accountability. The federal government, through s.
91( 24) of the Constitution Act, 1867, is
ultimately responsible for aboriginal
issues. It therefore is liable for governing Canada’s indigenous peoples.
Those same peoples are not prepared
to agree to a regime that is less autonomous than what is now in place. Canada’s Inuit and Métis are also not subject to the Indian Act and fear being
dragged into a paternalistic regime.
The question is how do we meaningfully and positively replace
The answer derives from the inherent right of aboriginal peoples to self-government as recognized in s. 35 of
the Constitution Act, 1982. It is governance that gives rise to the key forms
of autonomy: political, cultural and
Some commentators have expressed
the fear that indigenous communities
are not ready for political autonomy.
— starting with
— allows for the
of checks and
PAUL DWUIT / THE CANADIAN PRESS
Assembly of First Nations National Chief Shawn Atleo.
They point to evidence of government
corruption in some communities,
where a select few may exercise near
autocratic control over aboriginal communities. Corruption exacerbates the
problems of low rates of formal education, a lack of basic necessities of life
such as housing and potable water and
widespread poor health and social
problems such as substance abuse and
The other commonly expressed concern about Indian Act reform is how to
ensure the well-being of the growing
number of off-reserve aboriginals.
Such apprehensions hold some
legitimacy, but the current system is
clearly not alleviating these problems.
Furthermore, political autonomy
instituted with appropriate checks
and balances may go a long way
toward overcoming such obstacles.
When one looks at the fundamental
issues affecting indigenous peoples,
the common underlying theme is a
lack of empowerment.
The evolving interpretation of s. 87 of the Indian Act
Despite the aphorism to the
contrary, taxes are not inevitable;
at least not all taxes in all circumstances. Section 87 of the Indian
Act provides that personal property situated on reserve is exempt
Case law has long ago established that income is personal
property. Not surprisingly the
issue of when income is situated
on reserve, and is therefore tax
exempt, has been the subject of
much litigation. What is surpris-
ing is how case law has meandered
away from the central question:
whether income is sufficiently
connected to reserve.
No. 39, have confirmed that the
“commercial mainstream” concept
is a jurisprudential blind alley. The
decisions firmly draw the analysis
back to the location of the income
in question, as opposed to a characterization of the aboriginal or
non-aboriginal nature of the
income earning activity.
The “commercial mainstream”
excursion started two decades ago
with a line from Mitchell v. Peguis
Indian Band,  S.C.J. No.
63— a case dealing with the statu-
tory protection against garnish-
ment of on-reserve funds. The
court explained that the purpose
of s. 87 of the Indian Act is “not to
remedy the economically dis-
advantaged position of Indians by
ensuring that Indians may acquire,
hold and deal with property in the
commercial mainstream on differ-
See Traditional Page 17