Introduction

From 1841 to 1867, what are today Ontario and Quebec were “The Province of Canada” – a British colony.

There were laws “for the better protection of the lands and property of the Indians in Lower Canada,” and so on.

The 1867 British North America Act established the Dominion of Canada, and constructed federal powers within a constitution.

One of the Dominion’s first Acts was the 1868 creation of the Department of the Secretary of State, transferring the duties of the British office of the Indian Commissioner to Canada.

In the transfer, Canada assumed a level of sovereignty that had only ever been claimed by Britian – but never achieved in terms of land rights and the right to govern Indigenous Peoples.

Through the accumulated Indian Act 1876, which consolidated some laws and added a lot more, Canada used its new power of legislation to unilaterally confine Indigenous Peoples to “wardship” under administration, while taking over their economic and political roles on the land.

The Indian Act provided the legislative machinery to operationalize Canada’s effective, illegal occupation of what had been “His Majesty’s Allies,” just a few years before.

Canada’s unilateral actions have been ignored, resisted, and confronted on the ground and in courts.

The Canadian Constitution Act 1982 was passed as written by the Canadian government, over the objections of Indigenous Peoples coast-to-coast-to-coast.

In Section 35, the constitution affirmed “existing Aboriginal and treaty rights” – but these were not defined or even identified.

To this day, the Canadian courts have taken the position that “aboriginal rights will be defined on a case-by-case basis.” Only such rights as have been defined by the courts, or defined in agreements with the government, are constitutionally protected as “existing” Aboriginal rights.

Of all the extensive civil, political, economic, social, cultural, and land rights which Indigenous Peoples possess under their own and international laws, the Government of Canada considers these “undefined aboriginal rights” and does not recognize them: not until they are defined by Canadian courts or Canadian-made agreements.

Canada recognizes the provisions of the Indian Act – while racing to replace each section of that unilateral, illegal legislation with piecemeal agreements and “accommodation legislation” that Indigenous Peoples consent to, usually in funding agreements, thereby legitimizing governance by Canada.

Today, the government’s modern approach is to continue Indian Act control of activities on reserves, which is oppressive and punitive, until such time as individual First Nations consent to be governed by Canadian law.

This is a sectoral approach to replacing the Indian Act, section by section, with Canadian legislation that is consented to by a First Nation. In British Columbia, the BC treaty process was an approach to entirely replacing the Indian Act with a Final Agreement – but it was overwhelmingly rejected – so stand-alone agreements consenting to the BC courts and to uphold the Acts of Canada’s Parliament are made to implement agreements on Land Codes, Health, Education, Governance, Taxation, Children and Families, and natural resources.

---

---

This page is under construction to coincide with the 150th anniversary of the Indian Act on April 12, 2026.

Legislation for Occupation

Act for the Gradual Civilization of Indian Tribes, Canada, June 10 1857

---

British North America Act 1867

This Imperial Act of Britain constituted the Dominion of Canada, and served as Canada’s first constitution.

It created federal and provincial powers, and determined the process for more provinces to join “Canada.” The BNA Act reserved exclusive legislative authority to address “Indians and land reserved for Indians” to the federal government – exclusive of provincial governments – in Section 91(24).

The British monarch remained the Head of State, through the Office of the Governor General, as it continues to do today.

---

1868 Secretary of State replaces British Indian Commissioner

May 22. An Act providing for the organization of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands, S.C. 1868, c. 42 (31 Vict.), s. 15.

The 1868 Act mobilized the transfer of British authority to the Dominion. At the same time, this legislation enacted that:

1. There shall be a department to be called “The Department of the Secretary of State of Canada,” over which the Secretary of State of Canada for the time being, appointed by the Governor General by commission under the Great Seal, shall preside; and the said Secretary of State shall have the management and direction of the Department, and shall hold office during pleasure.

5. The Secretary of State shall be the Superintendent General of Indian affairs, and shall as such have the control and management of the lands and property of the Indians in Canada.

15. “…provided that the following persons and none other were to be considered Indians:

Firstly.  All persons of Indian blood, reputed to belong to the particular tribe, band or body of Indians interested in such lands or immoveable property, and their descendants;

Secondly.  All persons residing among such Indians, whose parents where or are, or either of them was or is, descended on either side from Indians or an Indian reputed to belong to the particular tribe, band or body of Indians interested in such lands or immoveable property, and the descendants of all such persons; And

Thirdly.  All women lawfully married to any of the persons included in the several classes hereinbefore designated; the children issue of such marriages, and their descendants.

Section 15 stated that only persons who met the statutory criteria were entitled to hold, use, or enjoy lands and property belonging to or appropriated to the use of bodies of Indians, tribes, or bands.

From that time forward, the Government of Canada has utilized the construct of the Status Indian in relation to the exercise of its s. 91(24) powers under the BNA Act 1867.

---

Enfranchisement 1869, continued

1869 An Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of the Act 31st Victoria, Chapter 42 S.C. 1869, c. 6. (32-33 Vict.)

The 1869 Act amended the definition of Indian by adding a provision that any Indian woman marrying a non-Indian man lost her Indian identity.  So too did the children of the marriage.  The 1869 Act also provided that when an Indian woman married an Indian man of a different tribe or band, she ceased to be a member of her own band or tribe and became a member of her husband’s band or tribe.  The children of the marriage became members of only the father’s tribe or band.

4. In the division among the members of any tribe, band, or body of Indians, of any annuity money, interest money or rents, no person of less than one-fourth Indian blood, born after the passing of this Act, shall be deemed entitled to share in any annuity, interest or rents, after a certificate to that effect is given by the Chief or Chiefs of the band or tribe in Council, and sanctioned by the Superintendent General of Indian affairs.

6. Section 15 is amended by adding the following proviso :

 “Provided always that any Indian woman marrying any other than an Indian, shall cease to be an Indian within the meaning of this Act, nor shall the children issue of such marriage be Indians, not to considered as Indians within the meaning of this Act ; Provided also, that any Indian woman marrying an Indian of any other tribe, band or body shall cease to be a member of the tribe, band or body to which she formerly belonged, and become a member of the tribe, band or body of which her husband is a member, and the children, issue of this marriage, shall belong to their father’s tribe only.”

51st Victoria, Chapter 42. S.C. 1869, c. 6. (32-33 Vict.)

Note: This section was confirmed in every Indian Act until it was amended in 1985.

---

1872 Grand Council reject legal encroachment

As quoted from the ruling of BC Supreme Court in McIvor v. The Registrar, 2007:

“In 1872, the Grand Council of Ontario and Quebec Indians (founded in 1870) sent the minister in Ottawa a strong letter that contained the following passage:

“They [the members of the Grand Council] also desire amendments to Sec. 6 of the Act of 1869 so that Indian women may have the privilege of marrying when and whom they please, without subjecting themselves to exclusion or expulsion from their tribes and the consequent loss of property and rights they may have by virtue of their being members of any particular tribe.”

(NAC RG10, Red Series, Vol. 1934, file 3541)

---

Indian Act, April 12 1876

“An act to amend and consolidate the laws respecting Indians.” – Canada

But it wasn’t just a consolidation. The 1876 legislation was extended across all of Canada, and added many dozens of paragraphs prescribing rules of govern­ance on Indian Reserves; powers of Indian Status were removed from Bands to the Indian Registrar; extensive restrictions of individual and collective rights – unless individuals surrendered their Indian Status and “enfranchised” as a Canadian citizen; or as groups release their “undefined Aboriginal rights” in favour of municipal incorporation and assimilation in the body politic of Canada.

---

Indian Act 1884 – the Potlatch Laws

New amendments prohibit the Potlatch and the Sundance. This is sometimes called the Tamanawas Laws or the Potlatch Laws.

The law prohibited anyone from participating in, holding, or receiving gifts from these governance and spiritual proceedings.

---

Indian Act 1920 – Indian Residential School compulsory

It is now a criminal act, punishable by jail time, for Indigenous people not to send their children to Indian Residential School.

In the same suite of amendments, the Minister of Immigration and Indian Affairs, Duncan Campbell-Scott, passed a paragraph which enabled the Minister to unilaterally enfranchise individuals who were known to be political leaders in Indigenous communities. Enfranchisement would make these people Non-Status Indians, and therefore liable for charges of trespass if they visited and Indian Reserve. This amendment lasted only until 1921, but it was in relation to this amendment that Campbell-Scott famously said:

“I want to get rid of the Indian problem. Our object is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic, and there is no Indian question, and no Indian department, that is the whole object of this Bill.”

As for the enforcement of attendance at Residential Schools (which was decriminalized in 1951, but remained in effect until a Private Member’s Bill in Parliament removed it in 2014), 75 years later, Scott’s later reflection on the “schools” was quoted in the 1996 report of the Royal Commission on Aboriginal Affairs: “It is quite within the mark to say that fifty percent of the children who passed through these schools did not live to benefit from the education which they had received therein.”

---

Indian Act 1927 – access to justice criminalized

With amendments this year following the Allied Tribes’ submissions on their Land Claims to a Joint Committee in Ottawa, the Indian Act was amended at the same time as the Committee’s report dismissed the claims and allocated $100,000 annually to “the Indian Tribes of BC” in lieu of treaties.

New amendments prohibited lawyers from working for Indigenous clients to “advance their cause.” Other amendments forbade gathering in groups of more than three; curfews; confinement to Reserves without official permission in the form of travel passes, and more; gathering to discuss the Land Question; and more.

These stayed in effect until 1951.

---

1946-47 Consultations by the Joint Committee

“Bands and organizations gave testimony to the Joint Committee in 1946 and 1947. Most of these groups emphasized that decisions as to membership of the band should be the decision of the band and that involuntary enfranchisement should be abolished. The North American Indian Brotherhood, the Indian Association of Alberta, the Native Brotherhood of British Columbia, and the Union of Saskatchewan Indians all made strong statements on this. This was considered a major breakthrough. Indians after all had not been consulted before as to their wishes.

“Some groups, the Caughnawaga Indians and the St. Regis Indians for example, called for the complete abolition of the Act. The Native Brotherhood of B.C. stated that women who had their status through marriage and who were deserted or widowed should be allowed to rejoin their band with their children.”

• From, “Citizens Minus – Indian women and the law in Canada,” p57. See full doc below.

---

Special Joint Committee Report 1948

After two years hearing testimony on the Indian Act,

“Many anachronisms, anomalies, contradictions, and divergences were found in the Act …Your Committee deems it advisable that, with few exceptions, all sections of the Act be either repealed, or amended …

“All proposed revisions are deigned to make possible the gradual transition of Indians from wardship to citizenship and to help them advance themselves…”

The Committee recommended provisions to protect the Indian from injustice and for greater responsibility and self-government for the Peoples impacted by the Indian Act. They recommended financial aid for Band Councils; Indian reserves be incorporated as municipalities; and the Indian Act be brought into line with the Criminal Code.

In its introduction, the Committee cited the Native Indian population of Canada as 140,000.

The government’s problems with enumerating Indigenous individuals came into sharp relief with a review of the 1981 Census, described below.

Minutes of Proceedings and Evidence of the Special Joint Committee, 1948

---

Indian Act 1951 – provincial laws of general application

The 1951 Act created the modern Indian Register in which the name of everyone registered as an Indian was recorded.  It also created the position of the Registrar, an officer of the Crown who was in charge of the Indian Register, who determined entitlement to be registered. The Indian Register consisted of Band Lists and General Lists.  Those persons who were members of bands and entitled to be registered as an Indian were entered in the Band List for that band. 

Many people did not fit the Indian Act criteria to be a band member. The 1951 Act created a “General List” of people with Indian Status who had no Band affiliation. It also provided that the Registrar could bestow Indian Status and make a person a member of an Indian Band without the Band’s participation or consent.

The infamous Section 88 was introduced in 1951. At that time it was s.87, but its effect was to bring provincial laws of general application over all Indigenous people. This included fishing and hunting laws, although the number of legal challenges to this matter – and the number of books written about it – are legion.

At the same time as this set of amendments, Indigenous people – Status Indians – were unilaterally made Canadian citizens by an Act of Parliament. They could not vote in federal elections, however, until 1960.

---

July 1968 – May 1969, government consultations on changes to the Indian Act.

---

1969 policy proposal – “that the Indian Act be repealed”

The White Paper Policy, or “Statement of the Government of Canada on Indian Policy”

Instead of proceeding with changes to the Indian Act based on the past year of consultations, Canada proposed to eliminate it.

“True equality presupposes that the Indian people have the right to full and equal participation in the cultural, social, economic and political life of Canada. The government believes that the framework within which individual Indians and bands could achieve full participation requires:

1. that the legislative and constitutional bases of discrimination be removed;

2. that there be positive recognition by everyone of the unique contribution of Indian culture to Canadian life;

3. that services come through the same channels and from the same government agencies for all Canadians;

4. that those who are furthest behind be helped most;

5. that lawful obligations be recognized;

6. that control of Indian lands be transferred to the Indian people.

The Government would be prepared to take the following steps to create this framework:

1. Propose to Parliament that the Indian Act be repealed and take such legislative steps as may be necessary to enable Indians to control Indian lands and to acquire title to them.

2. Propose to the governments of the provinces that they take over the same responsibility for Indians that they have for other citizens in their provinces. The take-over would be accompanied by the transfer to the provinces of federal funds normally provided for Indian programs, augmented as may be necessary.

3. Make substantial funds available for Indian economic development as an interim measure.

4. Wind up that part of the Department of Indian Affairs and Northern Development which deals with Indian Affairs. The residual responsibilities of the Federal Government for programs in the field of Indian affairs would be transferred to other appropriate federal departments. In addition, the Government will appoint a Commissioner to consult with the Indians and to study and recommend acceptable procedures for the adjudication of claims.

By this time, that current generation of Indigenous organizations had been taking meetings with government and attending Special Committee hearings to get change to their situation since 1946. The White Paper Policy was a total reversal of that consultation process and an abandonment of all the stated goals they had been working towards in good faith.

The threat posed by the Government Policy was so widespread and severe, that Indigenous peoples organized from coast to coast to coast to put it down.

     It was not only a policy to repeal the Indian Act – it was a plan to eliminate all recognition of distinct Indigenous rights. It was embedded in the constitutional process that succeeded in 1982.

In 1969, in unions of Indian Bands, Tribal federations, and regional Alliances, Indigenous Peoples created huge organizations to fight Canada’s devolution and assimilation program in solidarity.

The National Indian Brotherhood formed as a union of all elected Chiefs of Indian Bands in Canada. In 1981, it became the Assembly of First Nations as it confronted the next wave of Canada’s extinguishment plan: the new Canadian constitution.

---

1974 Attorney General of Canada v. Lavell – overthrowing the win

In 1970, Jeanette Corbiere Lavell had lost her Indian Status because she married a non-native man. She appealed the Registrar’s decision at Federal Court – with written support from the chief and council of her Indian Band reserve, Wikwemikong – but the Registrar’s decision was upheld.

    Lavell went back to court, and in 1972, the Federal Court of Appeal ruled that section 12(1)b of the Indian Act was discriminatory, because it made women, but not men, lose status by marriage.

Yvonne Bedard then won an appeal on the basis of Lavell’s 1972 victory. The Attorney General of Canada, along with the Department of Indian Affairs, took both Lavell and Bedard to the Supreme Court of Canada. The decisions in favour of their equality – of reinstating their Indian Status – were overturned in 1974.

In a five-to-four decision, the government’s appeal was allowed and section 12(1)(b) of the Indian Act was upheld. That is the section that denies Indian Status to women who have married non-Indians.

Mrs. Lavell and Ms. Bedard’s Indian Status was taken away again, and the court restored the Indian Act provision that Indian Status women who marry Non-Status men will automatically lose their own Status.

---

Indian Act 1985 – reinstatement after removal of Indian Status

The infamous Bill C-31 was passed after last-minute consultations with many Indigenous organizations, most of whom had organized and prepared reports on their own initiative and expense – such as the Indian Homemakers Association of BC.

Up to 200,000 people regained their Status by the provisions of the 1985 amendments, many of them women who had lost Status by marrying Non-Status men, and those women’s children; people who had been enfranchised in order to go to university or own land; and many who had never had Status.

---

Indian Act 2010

---

An Act to amend the Indian Act, Bill C-428, 2014

Introduced by Rob Clarke, M.P. for Desnethé—Missinippi—Churchill River, on June 4, 2012. Bill C-428 received Royal Assent on December 16, 2014. The Act amends the Indian Act by repealing outdated or antiquated clauses and removing barriers to opportunity for First Nations.

Overview of Bill C-428 Amendments to the Indian Act

1. Sections relating to residential schools

In June 2010, as a gesture of reconciliation, the Government of Canada committed to repeal those sections of the Indian Act that allowed for the establishment of Indian Residential Schools and the removal of children from their homes and communities.

These provisions were in the part of the Indian Act dealing with “Schools” (sections 114 to 122).

Bill C-428 repeals:

• Specific references to “residential schools”
• Provisions allowing for forcible removal of children from homes to attend school and related matters
• General requirements and powers which are outdated or unused
• Rights of on-reserve religious majorities and minorities (not currently exercised)

2. Removal of Other Outdated or Antiquated Clauses

Bill C-428 repeals the following outdated and antiquated sections of the Indian Act:

• Section 32 and 33 of the Indian Act which related to the sale or barter of produce. These sections date back to 1881 and have not been enforced for decades.
• Section 36 of the Indian Act was created to address a historical circumstance to bring within the authority of the Indian Act lands held by churches or charitable organizations in trust for First Nation communities in pre-Confederation days. Section 36 is no longer in use. The existing categories within the additions to reserve policy are sufficient to respond to the reserve creation needs of First Nations.
• Section 92, which prohibited an officer or employee of Aboriginal Affairs and Northern Development Canada, a missionary or a school teacher from trading for profit or selling to an Indian goods or chattels without a license issued by the Minister. 
• Section 105, which was a provision relating to the identification of an Indian or other person in legal proceedings.

3. Revision to Indian Act sections on By-laws:

Bill C-428 repeals or replaces several sections of the Indian Act which related to by-laws. The revised language eliminates the Minister’s oversight in regards to the submission, coming into force and disallowance of by-laws and gives First Nations the autonomy and responsibility over the development, enactment and coming into force of by-laws. The following outlines the key amendments:

Intoxicants by-laws:

Bill C-428 repeals subsection 85.1(3) of the Indian Act therefore removing the Minister’s oversight function in regards to the procedural requirements in order for an intoxicant by-law to come into force. As a result, once an intoxicant by-law has been assented to by a majority of the electors of the band who voted at a special meeting of the band called by the council of the band for the purpose of considering the by-law, and publication requirements are met, the by-law will come into force. First Nations are no longer required to forward intoxicant by-laws to the Minister once the aforesaid requirements have been met.

Publication, Accessibility and Coming into Force of By-laws:

Clause 9 of Bill C-428 provides for two improvements:

1. It provides for the publication of by-laws enacted by band councils. It requires band councils to publish by-laws on an Internet site, in the First Nations Gazette or in a newspaper that has general circulation on the reserve of the band. A by-law will come into force upon publication or on any later day specified in the by-law. The availability of a by-law, published on an Internet site, must be accessible during the period of time it is in force.
2. It requires that the council of the band provide copies of their by-laws upon any person’s request.

Previously, band councils enacting by-laws under sections 81 or 85.1 of the Indian Act were required to forward a copy of a by-law to the Minister within four days of its enactment.  Upon coming into force, First Nations were responsible for making their by-laws available to their members and the public without explicitly being required to do so in the Act. As well, publication of by-laws was not required under the Indian Act.

In regards to by-laws enacted under section 83 of the Indian Act, Ministerial approval will still be required in order for the by-laws to come into force. Commonly referred to as taxation or money by-laws, these by-laws are processed through the First Nations Tax Commission and not Aboriginal Affairs and Northern Development Canada but must explicitly be approved by the Minister in order to come into effect.  

Disallowance power
Clause 7 of Bill C-428 repeals section 82 of the Indian Act. The effect is two-fold in that it means that First Nations are no longer required to forward copies of all by-laws enacted under subsection 81(1), within four days of enactment, to the Minister, and it removes the discretionary disallowance power of the Minister regarding by-laws enacted under subsection 81 of the Indian Act. As a result, First Nations will have autonomy over the enactment and coming into force of by-laws and the day-to-day governance of their communities.

Seizure of goods
Clause 11 of Bill C-428 removes from subsection 103(1) of the Indian Act the reference to section 33, given that this section is repealed by Bill C-428, and also extends search and seizure powers when there is reasonable grounds to believe that an offence has been committed against a by-law made under subsection 81(1) of the Indian Act. 

Fine moneys
Bill C-428 amendments regarding fine moneys provide First Nations with direct access to a fine imposed under a by-law made by the council of a band under the Indian Act. This means that by-law fines will no longer belong to “Her Majesty for the benefit of the band …”. Instead, First Nations will be able to access the proceeds of a successful by-law prosecution more efficiently.  

4. Annual report to Parliamentary Committee

Bill C-428 requires the Minister of Aboriginal Affairs and Northern Development to report annually on work undertaken in collaboration with First Nations and other interested parties on the development of legislation to replace the Indian Act.

Recent legislative initiatives, such as the First Nations Elections Act, Family Homes on Reserves and Matrimonial Interests or Rights Actand Bill C-33, First Nations Control of First Nations Education Act are but a few examples of initiatives that are a result of consultations with First Nations and either provides an alternative to the Indian Act, or fills a legislative gap.

• First Annual (2015) Statutory Report Pursuant to Section 2 of the Indian Act Amendment and Replacement Act, Statutes of Canada, Chapter 38, 2014

---

2015 Descheneaux

On August 3, 2015, the Superior Court of Quebec ruled in favour of the plaintiffs in Descheneaux, finding that paragraphs 6(1)(a), (c) and (f) and subsection 6(2) of the Indian Act unjustifiably infringe section 15 of the Charter. The court declared these provisions to be of no force and effect but suspended its decision until December 2017 to allow Parliament time to make the necessary legislative amendments. This ruling, following on Daniels and going to discrimination within Indian Act limitations on Indian Status

---

Indian Act 2017 – “unknown or unstated parentage”

---

Image with caption from Russel Diabo and the First Nations Strategic Bulletin, 2026.

---

Women under the Indian Act

Indian Act – timeline of amendments re. women and children

– from Archive Quarterly – Summer 2024

---

---

Citizens Minus ~ Indian Women and the law in Canada, 1978

---

Women challenge loss of Indian Status in the courts and at the podium

---

Cases:

---

1999 Human Rights Committee

19. The Committee is concerned about ongoing discrimination against aboriginal women. Following the adoption of the Committee’s Views in the Lovelace case in July 1981, amendments were introduced to the Indian Act in 1985. Although the Indian status of women who had lost status because of marriage was reinstituted, this amendment affects only the woman and her children, not subsequent generations, which may still be denied membership in the community. The Committee recommends that these issues be addressed by the State party.

– Concluding observations of the Human Rights Committee, 65^th Session – Canada. April 7, 1999. CCPR/C/79Add.105.

---

Assimilation and Denial

1964 “The Indian in Transition” government pamphlet

A publication of the Government of Canada. Released in tandem with the Hawthorn Report (a study on off-Reserve Status Indians, and exploration of increasing provincial roles in assimilation, service delivery off-reserve, and dispossession from federal obligations.)

---

1966 The Hawthorn Report – Part 1a

A federally commissioned study into the statistics of out-migration from Indian Reserves, and reducing federal responsibilities by engaging provincial service and programs such as welfare, housing, etc. An excerpt from page 209:

“It is evident, therefore, that existing trends strongly support the policy of extending
provincial services to Indians providing suitable arrangements can be made with the provinces
and Indians are in favour of such changes. Public and parliamentary support for this policy is
found in the 1946-48 Special Joint Committee of the Senate and the House of Commons
appointed to examine and consider the Indian Act and in the representations made to the
Committee. Strong advocacy of this policy can also be found in the representations before the
1959-61 Joint Committee of the Senate and the House of Commons on Indians Affairs and in the
Committee’s recommendations.1″

Hawthorn Report – Part 1b

An excerpt from the summary:

“In 1847 Commissioners Rawson, Davidson, and Hepburn, in a Report on the Affairs of
the Indians in Canada, submitted to the Legislative Assembly, came to the conclusion “that the
true and only practicable policy of the Government, with reference to their interests, both of the
Indians and the community at large, is to … prepare them to undertake the offices
and duties of citizens; and, by degrees, to abolish the necessity for its farther interference in their
affairs.”
More than a century later, in July, 1964, the Indian Affairs Branch declared that “the basic
objective of the Federal Government in Indian Administration is to assist the Indians to participate
fully in the social and economic life of Canada.”
Something has gone wrong.”

Hawthorn Report – Part 2

---

---

1981 Census of Native People in Canada

A study commissioned by the Native Council of Canada revealed that the government’s estimations of the populations of Status Indian, Metis, Non-Status Indian, and Inuit Peoples varied by Department, to an official enumeration gap of 2,500,000 people. (see image below).

---

1994 UNN – Endangered Peoples Presentation to First Nations Summit

Presented by UNN President Dan Smith. “THE FUTURE: The Year 2000. Your grandchild He asked me, who are you, what Nation do you belong to? What did you say? I said I was a citizen of no Nation. I told him that I was a creation of the Indian Act. Stripped of my identity, my birthright and my citizenship because I could not be legally registered as an Indian. I am a by-product of various pieces of legislation and policies that date back to the 1840’s when the British colonial government formally took steps to assimilate and civilize us; to legislate our Nations out of existence.”

---

Daniels v. Canada 2016

---

1982-87 Canada Constitution – conferences

Introduction

Section 37 of the 1982 Constitution Act required Canada to convene a Constitutional Conference to elaborate the meaning of Section 35 concerning Aboriginal rights. This is because they were not defined, except as “existing.” While the “existing” Aboriginal rights were described in previous constitutional instruments such as the Royal Proclamation of 1763 (which was imported in its entirety into the 1982 constitution), recognition of those existing rights in a positive, descriptive manner was required by Britain’s House of Lords, on assenting to the patriation of a Canadian Constitution.

The First Minsters Conferences were held in 1983, 1985, and 1987. Aboriginal Peoples fully expected to come to a new working relationship with Canada during this process, and arrive at a full recognition of the Peoples’ rights which would be entered in Canada’s constitution by amendment. Only in 1985 were Aboriginal Peoples well-represented at the conferences.

The following documents pertain to that process.

---

1983

1983 First Ministers Conference – Canada’s background docs

---

United Native Nations Constitutional Process 1984/85 – Workplan

---

1985

Canada’s First Ministers Conference on Aboriginal Constitutional Matters – Indian Self-government.

April 2 1985

1985 Bill C-31 – An Act to Amend the Indian Act

Introduction to Bill C-31 and reinstatement in the Registrar of Status Indians

Canada invoked its Charter of Rights and Freedoms along with its 1982 Constitution Act. The Charter, to come into effect April 17, 1985, purported to end sexual discrimination in Canada. This had major consequences for the Indian Act, which discriminated severely against women: often preventing them from passing Indian Status to their children, among other disadvantages.

Bill C-31 was understood to address this kind of discrimination, to bring the Indian Act into conformity with the Charter, as well as reinstating tens of thousands of people who had not been, and could not be, registered as Status Indians for a complex web of “reasons” – all of which come back to Canada’s ongoing attempt to dispossess Indigenous Peoples of their land and rights, in this case, by refusing recognition of the individuals themselves. These further reasons are discussed in depth in the presentations shown here.

The federal government’s “consultation process” concerning the legislation was dismal. At the end, on March 20, 1985, the parliamentary Standing Committee actually cut off the speakers list addressing Bill C-31 because the vote on the Bill was occurring that afternoon.

Huge efforts, resulting in clear, consistent and actionable recommendations by dozens of organizations and Native communities from coast to coast to coast had been provided to the Standing Committee. They just were not heeded. On June 12, 1985, a totally inadequate Amendment to the Indian Act was legislated: it caused about as many new problems as it had been created to solve. For one thing, it now refused recognition of Indian Status as a function of Indian Band membership.

Inequalities and inadequacies related to citizenship in Indigenous Nations persist to this day, with Canada refusing to recognize the internationally protected right to self-determination, and only recognizing the federal Registrar as the authority on Indian Status. These injustices are present throughout each version of the Indian Act, some of which are provided on this page for reference.

The following documents pertain to the brief process during which Bill C-31 was tabled, discussed, and legislated; and then to the fallout that ensued.

---

Dene Nation to Canada re. Bill C-31

1984 memo: “…we are concerned that the legislation should provide that reinstatement be accompanied by the ability of bands to access an increased land base.”

AFN resolution to “remove discrimination”

May 1984, Edmonton

““Whereas the Federal Government has, over the past century, imposed citizenship termination and restrictive policies on our tribal nations without our consent; …”

---

The following documents are part of direct presentations to and meetings of the Parliamentary Committee on C-31

United Native Nations Presentation to the Standing Committee, March 1985

Legislation of Bill C-31

With virtually no reflection of the recommendations made by Indigenous organizations.

---

---

---

---

1991-92 Charlottetown Constitutional Amendment

Introduction

With the failure of the First Ministers Conferences of the 1980s to positively identify the Aboriginal rights mentioned in the 1982 Constitution Act, Section 35, two new rounds of constitutional amendment began. The first, the “Quebec Round” led to the Meech Lake Accord which was filibustered by Elijah Harper in 1990, and there met its end. Quebec’s constitutional status has still not been reconciled. The second, the “Aboriginal Round,” was supposed to positively enshrine the right to self-government (not to be confused with Indian Status and Bill C-31).

A unanimous amendment was achieved by the First Ministers (Premiers of the provinces and territories), the federal government, the Assembly of First Nations / National Indian Brotherhood, the Inuit Tapiri, the Metis, and the Native Council of Canada / Congress of Aboriginal People. This amendment was put to a referendum. At the last minute, the rules of voting-in the amendment were altered, and the amendment did not pass the new formula for ratification. the Charlottetown Accord, as this round was known, failed.

The following documents pertain to development of the Charlottetown Accord and the objective of enshrining Indigenous self-government in the Canadian Constitution.

---

Native Council of Canada Constitutional Review Commission

---

1992

“Identity Rights and Values” Conference Toronto 1992

Ron George, President, Native Council of Canada, to the Policy Conference on “Identity, Rights and Values, ” Feb . 6-9, Royal York Hotel, Toronto. 1990. Speaking notes.

Excerpt: “The Native Council of Canada welcomes this long-overdue opportunity to find our place within Confederation. And as we have said over and over again, our participation in the mainstream of this country must be based on our inherent rights to self-government. participation also requires our full consent. A lot has been said lately about how Canada’s Aboriginal peoples are asking to be given Our inherent right first, and then explain what it means later. This is not quite true. If it helps, let me tell you now what we mean by the word “inherent, ” before it threatens people like the word “distinct” has threatened some people with regard to Quebec society. What we mean by our inherent right to self-government is very simple. By “inherent, ” we mean our rights are inherited. Our rights come from our ancestors, the Creator, from the land itself. Our rights are our inheritance. Unlike non-native Canadians, our rights do not come from European sources.”

---

News Articles re. Indian Status

---

Provincial and Territorial Organizations – memos 1980s

---

Royal Commission on Aboriginal Peoples 1990-96

With the failure of Bill C-31 and the First Ministers Conference, and the dubious parameters of the Charlottetown Accord…

…there was a lot of leftover momentum which Indigenous organizations, from coast to coast to coast, had gained in unifying and organizing in good faith to hold their place against Canada’s attempt to assimilate them and their lands as part of confederation – without their participation in the process.

The opportunity of the new Constitution led nowhere, except to distract and divide leadership on the ground, and now roadblocks and resistance which had appeared throughout the 1980s led to a trans-continental well of support for the Mohawk people at Kahnawake when they stood their ground against desecration at Oka. Actions to disrupt the colonizing and extractive development of Canada were widespread, and the platform of betrayal, political bad faith and refusal of recognition, racist violence, inequality, displacement, environmental devastation, and denial of title and rights had grown to epic proportions.

In 1990, the Canadian government called for a Royal Commission on Aboriginal Peoples. Its mandate was weak. It eventually produced some thousand recommendations. The following papers were contributed to the process, among thousands, but they are here to illuminate specific issues.

---

Papers prepared for RCAP:

---

RCAP’s Final Report, in its many volumes, are available online.

Off-reserve voting and elections

1999

The Corbiere decision, Supreme Court of Canada, 1999

This decision restored the right of people “not ordinarily resident on reserve” to run for office and vote in band elections.

Corbiere (Batchewana) decision: AFN response plan

---

Sectoral Agreement Strategy

---

Introduction

Native jurisdiction, land ownership in Indigenous forms, and rights of governance have been split apart for “reconciliation” in Canadian legislative silos; been minimized or dismissed altogether; been constructed in the mainstream narrative and in the language of negotiation as if to be unproven and hypothetical sui generis concepts; and made “legally” impracticable by the colonial courts which assume the right to displace the native jurisdiction.

       Downstream of these assumptions, “jurisdiction” for First Nations is treated as a municipal power when it is constituted and delegated by the federal government to an incorporation of the First Nation: that is, to an entity formed under the Indian Act – which uses Indian Act mechanisms to ratify and consent to replacement legislation such as the Westbank Self-Government Act 2003; the First Nations Fiscal Management Act 2005; programs under the Inherent Right Policy, 1995; the First Nations Land Management Act 1998; or An Act Respecting First Nations Children and Families 2021; for example. There are several others.

      In these legislated “accommodations” of Aboriginal rights, land ownership is reduced to fee-simple titles issued by the crown’s Provincial Lands offices. “Self-government” is circumscribed by government policy, and the release of all kinds of rights and future claims is required to enable First Nation participation under the various legislative templates provided.

While the Canadian legislative instruments do not mention these forms of surrender, the Agreements themselves to opt-in to exercise municipal powers under the legislation all include equivalent paragraphs: “X First Nation promises not to assert self-determination;” “X First Nation agrees that its economic interests have been accommodated;” “X First Nation releases and indemnifies any person for past harm;” “disputes under the agreement will be referred to the BC Supreme Court for final determination;” “X First Nation will uphold all acts of Canadian Parliament on First Nation Lands;” et cetera.

The Following is quoted from CIRNAC:

Sectoral Legislative Arrangements:

Sectoral Legislative Arrangements:

Since the mid-1990s, a number of sectoral arrangements under the Indian Act regime have been successfully concluded with some First Nations. The process for sectoral arrangements begins with specific proposals by First Nations wishing to take on new or expanded law-making and/or other authorities within the purview of federal powers under section 91 of the Constitution Act, 1867. Section 91 outlines the areas of exclusive federal jurisdiction and provides the federal crown with exclusive jurisdiction to legislate in relation to “Indians and lands reserved for the Indians“.

The aim of sectoral arrangements is to create or expand governance authorities for Band Councils that are not provided for under the Indian Act. Participating Bands remain subject to the Indian Act, except where the sectoral agreement provides otherwise.

The following sectoral arrangements have been successfully concluded with First Nations:

First Nations Land Management Act (FNLMA)

The FNLMA, enacted in 1999, allows participating First Nations to opt out of the 34 land related sections of the Indian Act and manage their land, resources and environment under their own land codes.

The FNLMA is the formal legislation ratifying the Framework Agreement on First Nation Land Management (Framework Agreement). The Framework Agreement requires that First Nations develop a land code setting out the basic rules for the new land regime, including environmental assessment and protection and matrimonial real property laws on reserves. This lays the groundwork for expanded economic development on reserves and business partnerships with the private sector.

With 14 original signatory First Nations in 1996, there are now over 30 First Nations operating under the Act and more than 70 that have expressed interest in opting into the Regime. Budget 2011 committed to reallocating up to $20 million in funding over two years which will allow for new entrants into the Regime.

First Nation Property Ownership Act (FNPOA)

In a pre-budget presentation to the House of Commons Standing Committee on Finance on 15 September 2009, Manny Jules, Chief Commissioner of the First Nations Tax Commission, proposed legislation which he referred to as the First Nation Property Ownership Act (FNPOA).

The FNPOA would allow First Nations to opt out from the reserve land system of the Indian Act; transfer title from the federal government to First Nations governments; and allow First Nations to move to a Torrens land title system.

The proposed legislation has received preliminary support from some First Nations and First Nations organizations, and is being examined in partnership with Aboriginal Affairs and Northern Development Canada (AANDC).

First Nations Fiscal Management Act (FNFMA)

The FNFMA, sponsored by and jointly developed with a number of First Nations, was enacted in 2005 and provides First Nations with the practical tools available to other governments for modern fiscal management by enhancing First Nation property taxation, creating a First Nation bond financing regime and supporting First Nation capacity in financial management.

The legislation supports First Nation economic development and well-being and enables First Nations that choose to use the services of the institutions to participate more actively in the Canadian economy.

First Nations Oil and Gas and Moneys Management Act (FNOGMMA)

The FNOGMMA was enacted in 2005 as optional legislation that allows First Nations to opt out of the moneys management provisions of the Indian Act and provides for the release of capital and revenue moneys for the management and control of the First Nation.

This legislation provides First Nations the option to manage moneys currently held in trust for them by Canada. First Nations can also opt to manage and regulate on-reserve oil and gas activities. Under the FNOGMMA regime, First Nations can choose to opt in to one or both of these options.

The Act was developed in partnership with the White Bear First Nation in Saskatchewan, and the Blood Tribe and Siksika First Nation in Alberta.

First Nations Commercial and Industrial Development Act (FNCIDA)

FNCIDA came into force in 2006 and addresses regulatory gaps for First Nation commercial and industrial development on-reserve by enabling the federal government, at the request of a First Nation, to develop regulations that mirror a provincial regime for specific commercial and industrial development projects on reserve lands.

The Act was developed by the federal government and five partnering First Nations (Squamish Nation, Fort McKay First Nation, Tssu T’ina Nation, Kettle First Nation and Fort William First Nation).

In 2010, INAC amended the FNCIDA through the First Nations Certainty of Land Title Act (FNCLTA) to permit the registration of on-reserve commercial real estate developments in a system that replicates the provincial land titles or registry system. First Nations that make use of the new legislative tool ensure their on-reserve real estate developments benefit from greater certainty of land title, making the value of these properties comparable to similar properties off reserve land.

---

---

The Canada Gazette on Education Jurisdiction Agreements

The Canada Gazette, which records all legislation, describes the “Canada-BC First Nations Education Jurisdiction Act” as fulfilling some of the promises of the CanDRIPA. The Gazette describes two outcomes, defined by the federal government under CIRNAC (DIA), as indicators of success for the Education agreements. They are: 1) the number of treaties and final agreements being signed by First Nations in BC; and 2) the number of communities which have concluded treaties.

---

Extinguishment Legislation by Sector

1995 Inherent Right Policy

“Approaches to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government”

“The Government of Canada recognizes the inherent right of self-government as an existing right within section 35 of the Constitution Act, 1982. It has developed an approach to implementation that focuses on reaching practical and workable agreements on how self-government will be exercised, rather than trying to definec it in abstract terms. The Government believes that this approach is flexible and will allow all interested parties to make meaningful progress in the realization of Aboriginal self-government.”

Canada’s new policy on Aboriginal self-government follows the scuttled Charlottetown Accord. It is dubbed the “self-termination” strategy by Native sovereigntists, because traditional authorities are replaced by Canadian-made governance structures, with a ratification process to formally consent to be governed by Canadian law, and import the relevant statutes over themselves, as an “extinguishment by agreement” model. The BC Treaty Commission’s newsletter explains the new policy this way: “The inherent right of self-government does not include a right of sovereignty as it is understood in international law. All First Nations exercising self-government will remain part of Canada, contributing to the Canadian federation…. In BC, the government.. is negotiating self-government agreements as part of the BC Treaty Commission process. These agreements will result in practical arrangements which will meet the interests of all parties at the negotiating table. …while ensuring that First Nations governments are firmly within the Canadian legal and constitutional fabric.”

---

1996, December 10 – First Nations Lands Management Framework Agreement.

Thirteen Bands enter an experimental application of the new Land Code system, where chapters of the Indian Act dealing with land tenures are suspended. This Framework creates the basis for the First Nations Land Management Act, 1999, the first sectoral approach to replacing the Indian Act with Canadian legislation that is consented to by a First Nation.

---

1996, December 12 – Optional Modification Act.

Indian Affairs Minister Ron Irwin tabled a general amendment to the Indian Act, which included a new way to eliminate the Indian Act: by Indigenous consent to be governed by other Canadian legislation.

Bill C-79, the Indian Act Optional Modification Act, proposed amendments to numerous sections of the Indian Act. There were new paragraphs to require a Chief to be a voting member of the Band; to give Bands additional authority over natural resources “such as hay, wild grass, wild rice and shrubs, thus expanding First Nations management of natural resources;” an increase of fines under Band by-laws from $1,000 to $5,000.

    But the new section of consequence was that Indian Bands would have the same rights as natural persons, for instance to sue and be sued, which would in effect give Indian Act Bands a corporate character. The corporate structure was being pursued through several ways at once, including the simultaneous Land Management Framework Agreement..

The Assembly of First Nations called an emergency meeting about Bill C-79 for December 19, identifying the problem that community ratification would not be necessary in order to “opt-in” to the optional legislation and make this change of legal character. Note that it is an early and continuing piece of the Indian Act legislation that an elected Chief and Council can pass any motion with a Band Council Resolution, which does not even require notice to the membership. The AFN pointed to the facts that there would be no “opt-out” procedure following the Minister’s “optional” paragraphs.

Meanwhile, the first experimental voyage in the Sectoral Agreement Strategy was launched with the Framework Agreement.

---

1999 First Nations Land Management Act (FNLMA)

The FNLMA, enacted in 1999, allows participating First Nations to opt out of the 34 land related sections of the Indian Act and manage their land, resources and environment under their own land codes.

The FNLMA is the formal legislation ratifying the Framework Agreement on First Nation Land Management (Framework Agreement). The Framework Agreement requires that First Nations develop a land code setting out the basic rules for the new land regime, including environmental assessment and protection and matrimonial real property laws on reserves. This lays the groundwork for expanded economic development on reserves and business partnerships with the private sector.

With 14 original signatory First Nations in 1996, there are now over 30 First Nations operating under the Act and more than 70 that have expressed interest in opting into the Regime. Budget 2011 committed to reallocating up to $20 million in funding over two years which will allow for new entrants into the Regime.

---

2002 The First Nations Governance Act (Bill C-7)

In 2002, the federal government again initiated a major overhaul of the Indian Act with the introduction of the proposed First Nations Governance Act (Bill C-7).

Bill C-7 was aimed at addressing fundamental aspects of Band governance and would have provided Band Councils with: expanded authorities to develop their own laws (codes) in respect of leadership selection; the administration of government and financial management and accountability; expanded law-making authorities in a number of other subject-matter areas; as well as removal of ministerial oversight powers in several areas.

The initiative was led by the Minister of Indian Affairs and Northern Development and a lengthy consultation process was undertaken with First Nation communities across the country prior to the development and tabling of the Bill. However the proposed Act was met with opposition from Chiefs and provincial/territorial First Nation organizations across the country, as well as from the Assembly of First Nations and died on the Order Paper with the prorogation of Parliament in November 2003.

---

2004 Forest and Range Agreements

Following the double Supreme Court of Canada ruling in Haida and Taku River Tlingit, BC and Canada pursued a new strategy: recognizing Indian Act Band Chief and Councils as authorities over the entire traditional territory of Indigenous Nations. Before that, Indian Act Bands were only empowered over Indian Reserves.

The ruling had clarified and confirmed that governments must consult with Aboriginal peoples before taking actions that might affect their unproven, claimed rights. The governments solved this problem by making Band Councils responsible for “consulting” their own people, and agreeing to be “accommodated” in areas where the People’s title and rights were about to be impacted.

The “Forest and Range Agreement” was the first model of extinguishment by accommodation presented by Canada and BC. A First Nation (the Band Council) would warrant that its economic rights to the land had been accommodated in order to receive a per-capita share of logging that was about to proceed. This all happened before logging plans were finalized.

---

2005 First Nations Fiscal Management Act (FNFMA)

The FNFMA, sponsored by and jointly developed with a number of First Nations, was enacted in 2005 and provides First Nations with the practical tools available to other governments for modern fiscal management by enhancing First Nation property taxation, creating a First Nation bond financing regime and supporting First Nation capacity in financial management.

The legislation supports First Nation economic development and well-being and enables First Nations that choose to use the services of the institutions to participate more actively in the Canadian economy.

The price: consent to be governed.

---

2005 First Nations Oil and Gas and Moneys Management Act (FNOGMMA)

The FNOGMMA was enacted in 2005 as optional legislation that allows First Nations to opt out of the moneys management provisions of the Indian Act and provides for the release of capital and revenue moneys for the management and control of the First Nation.

This legislation provides First Nations the option to manage moneys currently held in trust for them by Canada. First Nations can also opt to manage and regulate on-reserve oil and gas activities. Under the FNOGMMA regime, First Nations can choose to opt in to one or both of these options.

The Act was developed in partnership with the White Bear First Nation in Saskatchewan, and the Blood Tribe and Siksika First Nation in Alberta.

---

2006 First Nations Commercial and Industrial Development Act (FNCIDA)

FNCIDA came into force in 2006 and addresses regulatory gaps for First Nation commercial and industrial development on-reserve by enabling the federal government, at the request of a First Nation, to develop regulations that mirror a provincial regime for specific commercial and industrial development projects on reserve lands.

The Act was developed by the federal government and five partnering First Nations (Squamish Nation, Fort McKay First Nation, Tssu T’ina Nation, Kettle First Nation and Fort William First Nation).

In 2010, INAC amended the FNCIDA through the First Nations Certainty of Land Title Act (FNCLTA) to permit the registration of on-reserve commercial real estate developments in a system that replicates the provincial land titles or registry system. First Nations that make use of the new legislative tool ensure their on-reserve real estate developments benefit from greater certainty of land title, making the value of these properties comparable to similar properties off reserve land.

---

2009 First Nation Property Ownership Act (FNPOA)

In a pre-budget presentation to the House of Commons Standing Committee on Finance on 15 September 2009, Manny Jules, Chief Commissioner of the First Nations Tax Commission, proposed legislation which he referred to as the First Nation Property Ownership Act (FNPOA).

The FNPOA would allow First Nations to opt out from the reserve land system of the Indian Act; transfer title from the federal government to First Nations governments; and allow First Nations to move to a Torrens land title system.

The proposed legislation has received preliminary support from some First Nations and First Nations organizations, and is being examined in partnership with Aboriginal Affairs and Northern Development Canada (AANDC).

---

2012 Bill C-45 – omnibus act

In December 2012, amid national attention to Attawapiskat Chief Theresa Spence’s hunger strike to stop mining in her north Ontario land base, the federal government passed several pieces of legislation to enable First Nations to opt-out of the Indian Act and opt-in to legislation-by-agreement in areas of governance.

The 2013 Idle No More movement was the result.

---