If the Indian Act is changed or abolished, what happens in the NWT?

When Manitoba Premier Wab Kinew held up his Indian status card this week and argued the Indian Act should be abolished, he set off a firestorm of questions about the law and the consequences of doing away with it.

In the NWT, this question is even more complicated than the rest of Canada, according to Yellowknife resident and lawyer Larry Innes of Olthuis, Kleer, Townshend LLP. 

The application of the Indian Act is more limited in the NWT, Innes said, with the exception of two reserves: Salt River First Nation and Kátł’odeeche First Nation.

“If you’re Kátł’odeeche on reserve, it would have a major impact over your governance system, your land management system, and many of the things that your members enjoy by virtue of being status Indians on reserve,” he said. 

“Outside of the two reserves in which the Indian Act still has considerable scope and application, the Indian Act in the Northwest Territories has largely been used only in very limited ways to provide for band council governance.”

Elections are the primary example of this: many NWT First Nations still rely on the Indian Act for electing their chief and council, Innes said.

He emphasized the application of the Indian Act in the NWT varies by region and government, pointing to the Sahtu as an example. 

There is no longer a Délı̨nę First Nation under the Indian Act, because Délı̨nę is now self-governing and defines its own citizenship under its own legislation, Innes said. 

“If you’re Délı̨nę with a self-government that makes no reference to the Indian Act at all, consequences are likely only going to be linked to questions of entitlement to tax benefits – when, and if, their members who are also status Indians are purchasing goods or working on reserves,” he said.

Then there’s the Behdzhi Ahda’ First Nation in Colville Lake, which is currently negotiating a self-government agreement with the GNWT and federal government. When its self-government agreement is completed, Behdzhi Ahda’ First Nation will cease to be a band under the Indian Act and will be in the same situation as Délı̨nę, Innes said.

Along with Section 87 tax exemptions, status Indians are eligible for many “rights and benefits” as outlined by Indigenous Services Canada that include Non-Insured Health Benefits and the Post-Secondary Student Support Program. 

Those tax provisions “are still seen as being valuable,” said Innes. 

“They’ve been an important negotiating point for many First Nations elsewhere in the country who, when presented with the opportunity to either become modern self-governments or to maintain Indian Act status, have often voted to maintain Indian Act status because they don’t want to lose the tax benefit under Section 87.”

‘Things within the act protect us’

Kinew characterized the Indian Act as “outdated, racist and patriarchal” in a social media post last week.

It was created in 1876 as a tool of assimilation. Over time, iterations of the act replaced traditional governance structures, excluded women from politics, outlawed cultural ceremonies and gatherings, forced First Nations children into residential schools and controlled who was considered an Indian under law.

The act was “designed to assimilate you, to get you off your land and put you on a reserve, and virtually get you out of the way so that Canada can develop all the resources in and around your reserve,” said Danny Gaudet, a former leader of Délı̨nę who served as its chief negotiator for nearly two decades.

Despite many changes since the act was first created, controversial provisions like the second generation cut-off still exist. That cut-off prevents many First Nations people with status under the Indian Act from passing entitlement on to their children and grandchildren. It would be abolished under proposed legislation, though it’s not clear if that legislation will succeed.

At the Senate Standing Committee on Indigenous Peoples this week, one young Northwest Territories resident warned that doing away with the Indian Act entirely is a double-edged sword.

“As much as it discriminates against us, there’s also things within the Indian Act that protect us, so abolishment isn’t what we need,” Jaylene Neisa Delorme, a member of the Yellowknives Dene First Nation from Hay River, told senators. Delorme spoke about the need to end the second-generation cut-off during her testimony. 

“The Indian Act needs to be redone, relooked at, but it needs to be relooked at with Indigenous people at the forefront,” Delorme said, adding that this must include input from even the smallest communities, not just larger organizations like the Assembly of First Nations.

Gaudet said it’s up to individual Indigenous governments to decide if the Indian Act still suits their purposes.

When the numbered treaties were negotiated, Gaudet said, they outlined certain rights and services but also said First Nations would be governed by legislation – which is how the Indian Act came to be. 

If the Indian Act disappeared overnight, those treaty rights would still exist. The legislation, he said, simply lays out how you implement those rights and provides a framework for managing reserve land, governance, accessing funding and more.

He sees the options as sticking with the Indian Act, reforming it, or pursuing self-government agreements like the Délı̨nę Got’ı̨nę Government.

What would come after the Indian Act?

After Kinew’s statement, Prime Minister Mark Carney said he is “committed to a process that moves Canada beyond the Indian Act.” On Tuesday, Carney said the federal government will start a process with First Nations, provinces and territories to review options, adding “it’s not a process with a fixed conclusion.” 

This is where it gets “super complicated,” Innes said, describing an act that has “constrained the lives of Indigenous people over more than a century and a half” and which will require “a great deal of care” to unwind.

If you abolish the Indian act, the big question is what do you replace it with, former federal MP Robert-Falcon Ouellette told Cabin Radio. Ouellette is currently an associate professor at the University of Ottawa’s faculty of education.

Replacing the Indian Act with new legislation is not something that can happen overnight but would likely take “many years,” he said.

Opening this issue up could have implications for national unity, Ouellette said. If you start negotiating with First Nations about increased sovereignty and control of land and resources – specifically Crown land – provinces like Quebec will likely resist any impacts to their jurisdiction, he mused.

Dehcho Grand Chief Herb Norwegian welcomed Kinew’s call to repeal the Indian Act, as reported by CBC. For decades, Dehcho First Nations have been in land claim and self-government negotiations.

“Any reform of the Indian Act is going to have to get much closer to that nation-to-nation, government-to-government arrangement that Indigenous leaders and scholars have been talking about and writing about for decades,” Innes said, “and abandon some of the old Duncan Campbell Scott ideas that the Indian Act would be a pathway to full assimilation.”

Claire McFarlane contributed reporting.