The House of Commons has before it two proposals, one Liberal and one Conservative, to end the Indian Act. Liberal Leader Bob Rae's prescription is to begin with consultation and move to a scheduled plan for replacement of those sections of the antiquated act that rule the daily lives of First Nations people. This recipe for protracted negotiation is almost as bad as a Conservative private member's bill based on the premise of rewrite first, consult later.
The better approach would be to invite expedited consultation to replace the act, the nature of which offends the concept of self-government and the rights of citizens within a liberal, democratic society.
Mr. Rae's proposal, set out in a motion before the House Monday, is to launch two years of consultations, leading to a set of mutually agreed goals, or "deliverables." A resulting statutory relationship would embrace the principle of "free, prior and informed consent" of First Nations people, as set out in the United Nations Declaration of the Rights of Indigenous People.
In theory, this seems logical. But history has shown broad, open-ended negotiations between the federal and First Nations governments lead to protracted disputes, court challenges and hardened positions.
Saskatchewan MP Rob Clarke's private member's bill, however, takes the opposite tack, based, as the Conservative member of the Muskeg Lake band explained, on an "amend, repeal, replace and consult" approach to getting things done. While it laudably seeks to eliminate provisions that speak of residential schools and curtail the rights of First Nations people to write their own wills, Mr. Clarke's bill has enraged native leaders who reject the idea that they should be consulted after the rewriting is done.
Attempts by the federal government to impose legislation on First Nations bands can easily be thwarted by reserve residents who are anxious for improved services and governance, but justifiably suspicious of unilaterally crafted solutions to their problems.
A compromise to the polarized positions of the two proposals before Parliament would be a cautious, deliberate dismantling, piece by piece, of the Indian Act that includes meaningful consultation. That seems to have been the Harper government's approach to date, to work with native leadership on a to-do list both parties agree upon, but also to pass new legislation where rights of First Nations people must be protected.
On many elements, such as accountable government and improved education, the federal and band governments can easily agree. Backed by enticing new funding, bands could be convinced to sign on to voluntary new agreements that eventually supplant specific parts of the Indian Act.
A new education agreement, for example, should set out defined goals for funding and accountability, holding both the federal and band governments to their end of the bargain. The Indian Act says next to nothing about the quality of teaching or learning, and holds the school systems to no clear expectation in curriculum or assessment.
A new agreement could entice bands to sign on to a new regime of education administration backed by new funding, designed to enrich learning and accountability. A national panel in 2011 recommended regional councils be established to monitor accountability, performance and funding to hold both sides to the bargain.
It would be difficult to find defenders of the Indian Act, but replacing it is not a two-year project and will not be done by forcing upon First Nations people and their governments legislation they have not helped draft and approved. Consultation is key, but it must be meaningful and carry an end-date.
Neither proposal now before Parliament meets the test. The Harper government should stick to a cautious, piece-by-piece dismantling of the Indian Act with a confidence and compulsion that respects consultation and the right of First Nations people to enjoy a quality of life shared by all other citizens.