When the Trudeau government took office, public expectations on the Indigenous file were sky high. It hasn’t quite been a year, and the cynicism is already setting in. The pace of change has not met hopes, and this was probably inevitable.

It’s easy to lose sight of what an unusual year it has been.

The National Inquiry on Missing and Murdered Indigenous Women and Girls (MMIWG) captured most of the attention, but we should have paid greater heed to a series of speeches given by Justice Minister Jody Wilson-Raybould in the spring. At an emergency debate on Attawapiskat in April, she told Parliament that the Indian Act had to go — that her government was committed to freeing First Nations from its “shackles.” She repeated this at the UN soon after.

Sure, denouncing the Indian Act is nothing new. Indigenous people have protested the various pieces that eventually coalesced in the Act since the early 19th century. State actors have understood its deep failure — by any measure — since at least the middle of the 20th century. There may not be a more reviled piece of legislation in Canada.

But this was strong language, from the Minister of Justice no less, at a moment when she could have dwelled inside the much safer terrain of standard moral panic. It was probably unprecedented. It was definitely something to notice.

I continue, reluctantly, to believe in the resilience of the Indian Act and in structures over actors. But between the successes of Idle No More and the MMIWG advocates, the Truth and Reconciliation Commission, and a change of government, we may well have entered a contingent moment. Major change is always unlikely, but sometimes it happens. Why not now?

The Justice Minister was right, though, when she warned it won’t be easy. The Indian Act has self-preservation baked into its design.

The Indian Act sets a “legitimacy trap.” It is deeply illegitimate in the hearts and minds of all concerned, but difficult to topple nonetheless. As the administrator of the Act, the federal government is infected with its illegitimacy. The same is true, to some extent, of the band councils that are created by the Indian Act. The result is that the only people positioned to seek and make formal change lack the legitimacy to do so. The federal government must act to repeal and replace, but it is just not trusted to get it right.

Conference on the Indian Act, 1968. Library and Archives Canada.

So how, actually, do we break the shackles of the Indian Act? This question has attracted far too little concrete attention.

Consultation is not, in itself, a simple way through. In the context of First Nations, consultation is a legalistic and bureaucratized notion — a source of much jurisprudence but little real political guidance. We’ve thrown too much faith and energy behind abstract concepts like “free, prior and informed consent.” Even if we all agreed in principle that major political and economic projects require the consent of affected communities (and we really should), we still haven’t gotten very far. In practice, free, prior and informed consent is a process problem.

The government can’t just rely on the usual suspects, like the Assembly of First Nations, to speak on behalf of all First Nations in some bilateral forum. Recent experience illustrates the folly of this. For example, Stephen Harper’s second First Nations Education Bill arrived fully endorsed by then national chief Shawn Atleo. But rather than bolstering support for the measure, this just undercut support for Atleo. He was out as chief soon after, and the Bill died on the order paper. And the stakes here are immeasurably greater.

We’re told that behind the scenes the feds are quietly hosting exploratory tables — baby steps toward a new national policy on self-determination. This is an entirely reasonable approach, but the challenge of getting from boutique consultation to retail legitimacy is still waiting.

The First Nations political universe is often more varied and complex than governments are prepared to recognize. Non-Natives complain when First Nations won’t speak with one voice. But we’re talking about more than 60 nations, as well as the internal political diversity within each of them. One voice would suggest some deep democratic failure somewhere. One voice is neither attainable nor desirable.

So the playing field must be made wide open. The process of replacing the Indian Act has to be big, participatory for First Nations citizens, and it must break the policy-making template. While federal legislation is an ineluctable fact in the process, the federal government should have as little as possible to do with drafting alternatives.

I think it’s helpful to think of this hypothetical undertaking less as legislation and more as constitution-making. The Indian Act is not a constitution, but it is quasi-constitutional in function. It’s the source from which most First Nation governments draw their limited authority. By setting rules about “Indian status,” it also governs belonging and citizenship in the political community. And it sets the terms for intergovernmental relations.

These functions will need to be replaced in whatever comes next, even if it is only a framework for bilateral negotiations with individual First Nations. That means that legislating the post-Indian Act world will involve a form of “higher lawmaking,” akin to the development of a new constitution. And now there is a global consensus that constitutional change requires exceptional process, including public participation beyond just electing representatives.

In the aftermath of Meech Lake and Charlottetown, we had a debate in Canada about how to achieve “public brokerage,” which permits broad participation at the same time as deliberation and compromise. In other words, we tried to imagine models that would turn the work over to the people, beyond a simple thumbs-up/thumbs-down referendum. If we’re actually getting serious about ending the Indian Act, we should revisit this discussion.

Iceland recently underwent a groundbreaking attempt at participatory constitution drafting, and the model is worth a look. First, a constitutional committee was convened, consisting of seven experts across a range of fields. The committee hosted 950 randomly selected citizens in a conference, to identify key values and points of emphasis for incorporation in the new constitution. Twenty-five non-politicians were then elected to form a constitutional council, which received public comments and developed a draft constitution. The draft succeeded in a nonbinding popular referendum, attracting two-thirds support – only to be shelved indefinitely amidst parliamentary wrangling.

The details are less important than the concept of public brokerage. Public brokerage could remove the task of ending the Indian Act from a legislative environment that is dysfunctional to the point of inertia. And we are often taught by Indigenous scholars about the open, consensus decision-making model that is used by Haudenosaunee, Anishinabe and in many other Indigenous societies. Some forms of public brokerage vastly predate parliamentary democracy in Canada, and hold resonance for First Nations.

Notice that nothing in this requires the federal government, at least not at first, to initiate the conversation. This wouldn’t be a “nation-to-nation” conversation between Indigenous people and Canada. Not at first, anyway. It could be an internal conversation, in one sense, restricted to the multinational political community of First Nations in Canada. For once, it would not be structured by the governance architecture of the Indian Act.

The usual caveats apply here. Of course, it’s not for me or anyone else to prescribe the procedure through which First Nations redefine their governance relationship with Canada. We encounter the telescopic problem of process: legitimacy requires that First Nations must first determine the model through which they’ll determine the law.

But in raising the notion of public brokerage, I want to make two simple points about ending the Indian Act. First, creativity is required. Second, some kind of radically different approach is not impossible, impractical or academic. It is probably the only way out.

The Indian Act celebrated its 140th birthday this spring. That’s too many candles.

Photo: Darryl Dyck / The Canadian Press

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Michael Morden
Michael Morden is interim executive director and research director of the Samara Centre for Democracy and co-author of Real House Lives: Former Members of Parliament on How to Reclaim Democratic Leadership.

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