Overlapping consensus, legislative reform and the Indian Act.

• Author: Sanderson, Douglas
• Position: Canada

Calls to abolish the Indian Act and to reset the relationship between Aboriginal people and the Crown dominate the academic discourse. The author proposes something different. He suggests that the Government of Canada and First Nations work within the framework of the Indian Act to find areas of agreement. In doing so, the author draws on Rawls' theory of "overlapping consensus": the idea that two parties with opposing viewpoints, or "comprehensive starting positions", can find areas of agreement without abandoning their respective starting positions. Despite the Crown's and First Nations' very different conceptions of the nature of their relationship, if overlapping consensus can be found on both the changes to be made to the Act and the principles that underlie those changes, progress can be made without asking either party to compromise on its foundational beliefs.

The author identifies financial accountability, membership integration and financial integration in First Nation communities as areas ripe for overlapping consensus on necessary reforms. He proposes that members of a First Nation community should be entitled to have their income tax payments directed to their community. This would mean that First Nation communities would finally have the incentive to admit non-status Indians as new members because the communities would receive increased funding for each member through his or her income taxes. The tax redirection plan would further combine accountability and integration, and it would represent a reform that could begin to set the Indian Act on a better path.

Introduction I. An Argument for Some Form of the Indian Act II. Rawls and the Overlapping Consensus III. Some Essential Background A. The Current System of Funding IV. Financial Accountability V. Integration A. Bars to Economic Integration B. The Potential for Overlapping Consensus on Economic Integration C. Integration Through Membership VI. Creating Overlapping Consensus by Combining Accountability and Integration A. Linking Membership and Revenue Through Federal Income Tax B. How These Reforms Facilitate Overlapping Consensus Conclusion Introduction

[T]he Indian Act [should be] retained [not] because it is a good piece of legislation. It isn't. It is discriminatory from start to finish. But it is a lever in our hands and an embarrassment to the government, as it should be. No just society and no society with even pretensions to being just can long tolerate such a piece of legislation, but we would rather continue to live in bondage under the inequitable Indian Act than surrender our sacred rights.

--Harold Cardinal (1)

In 1969, when Harold Cardinal penned these words, the federal government had just tabled a White Paper on Indian policy in Canada. (2) The White Paper proposed the elimination of the Indian Act (Act), (3) the abolition of treaties, and the assimilation of Indigenous people into the broader Canadian society, such that Indigenous people would be reduced to the status of every other ethnic minority. Cardinal opposed this abrogation of the Crown's constitutional responsibility to respect treaties and to deal with Indigenous people as a founding people. In this paper, I too argue against calls to abolish the Indian Act. Like Cardinal, I believe that the Indian Act exists in part to set out the terms of the relationship between First Nations and the Government of Canada (the Crown), and that the current Indian Act is neither reflective of the Crown's historic commitments to Indigenous people nor adequate to sustain contemporary First Nation communities.

My concern is with both the substance and the process of reform to the Indian Act. I believe that legislation can and must set out a rightful relationship between First Nations and the "settler" (4) people--though I do not here propose a full vision of that relationship. (5) Instead, drawing on the work of John Rawls, I propose a process through which First Nations and the Crown can find consensus on Indian Act reform despite very different understandings of the relationship between them. The process builds on Rawls' concept of "overlapping consensus" by asking First Nations and the Crown to seek consensus on the things they are likely to agree on, and more importantly, on the principles that underlie those areas of agreement. In other words, we must not only identify areas where there happens to be agreement, but also the crucial subject of those areas where the agreement comes about because the parties agree on the underlying principles. Such an agreement on principles forms the basis of overlapping consensus, and, I will argue, is what permits productive discussion about reform to take place. In specific terms, I believe there is already a consensus on certain critically important areas of government responsibility: accountability for one, and also the economic and political integration of (and within) First Nation communities.

I do not here advocate the abolition of the Indian Act, or its replacement with a sweeping new legislative regime, though in time this too may be possible and advisable. Instead, I argue for change within the existing framework of the Act in areas that are capable of generating political consensus among First Nations, Canadians generally and Parliament in particular. I do not take this position because I believe that incremental change is best, but because there is at present little chance of agreement between settler and Indigenous people on the fundamental issue of how to define the relationship between First Nations and the Crown. Indeed, we have been seeking that consensus since the arrival of the settler people and we are no closer to a broad-based agreement about how we are to live side by side. Instead, for the past seven generations the Crown has imposed its vision of the proper relationship between itself and First Nations through the Indian Act. (6) Given this history, we may not be able to come any time soon to a grand bargain where everything is on the table and a new relationship is sealed, but we can advance toward that end by taking principled steps every time First Nations and the Crown meet to negotiate some aspect of their relationship. This paper is concerned with a rightful relationship, reciprocity of opportunity and the need to finance our communities with the human resources available to us.

The elders tell us that things take time, that actions have consequences, and that we must think through these consequences not only for this generation and the next, but for seven generations down the line. This paper is my argument for a better Indian Act, and for a process to get us there. In Part I, I will make my argument for the existence of some form of Indian Act. In Part II, I will outline Rawls' theory of "overlapping consensus". In Part III, I will identify the areas of reform in which I believe an overlapping consensus can be achieved: accountability and integration. By accountability, I refer to the common sense meaning of the word as appropriate transparency in financial decision making. (7) By integration, I mean the right of First Nation communities to choose to enter into the broader Canadian economy, and the right to encourage the adoption of non-status Indians as citizens of those communities. Finally, I will put the idea of overlapping consensus into practice by proposing an income tax reform that builds on the shared interests of First Nation and settler people.

1. An Argument for Some Form of the Indian Act

   The Indian Act, for all its trappings of colonial thinking and clear paternalistic intent, does important work. Among many other things, the Act sets out the powers of Indigenous governments, (8) creates a system of land holdings and property interests, (9) provides for the education of Indigenous children (because provincial legislation does not extend to Indian reservations), (10) establishes programs for financial assistance, (11) provides for the legal authority to issue warrants in Indigenous communities to maintain peace and order, (12) determines who is and is not legally an Indian person and sets out the electoral process in Indigenous community elections. (13)

   Of course, the Indian Act does all of these things badly. The powers of Indigenous governments under the Act are few and of little consequence if the goal is to govern modern communities. The system of education enabled by the Indian Act is today set out in the very same language that established the residential school system and its well-documented horrors. Maintenance of peace and order is impossible because there are not enough resources to fund police services or attend court hearings. The criteria for who is an "Indian" are anachronistic at best and racist at worst. (14) The system of property rights in Indigenous communities serves to stymie rather than promote economic development. The statutory framework governing the electoral process in Indigenous communities imposes what is, in effect, a foreign system of governance on an unwilling people. And so, the Indian Act is in many ways a terrible piece of legislation: racist, backwards, inefficient and colonial in both scope and intent. It is no wonder so many cry out for its abolition. (15)

   All that said, the Indian Act is necessary, because some piece of legislation must govern the settler-indigenous relationship. (16) If the Indian Act were abolished today, some other piece of legislation would simply spring up to take its place. (17) Nevertheless, in its present form, the Indian Act is not a piece of legislation that any of us wants to live under. Surely we can do better. (18)

   It is helpful to contrast the approach I am advocating with the current proposed alternatives. On one hand, Indigenous peoples tend to advocate for the wholesale replacement of the Indian Act with a different statutory or government-to-government relationship based on historical and contemporary treaties...