The Indian Act is the comprehensive piece of legislation that has governed the relationship between First Nation peoples and the Canadian government since 1876. It governs most aspects of life for those considered “Indians” and “bands” under the Act, including lands, resources, wills, education, band membership, elections and even who is considered an “Indian”. The Indian Act is largely considered a paternalistic and discriminatory piece of legislation, and despite many amendments over the years, it remains so to this day.
Many Nations have tried to move away from the Indian Act and federal control through different approaches. One approach is the negotiation of modern treaties as is being done by the Te’mexw Treaty Association. These treaties can provide broad self-government powers, recognition of ownership of lands and resources, as well as many other benefits.
In addition, there are a number of opportunities to build governance capacity, grow areas of jurisdiction, and establish self-government using the Indian Act as a stepping-stone to greater independence. For example, the Indian Act and other federal legislation contain provisions that allow bands to opt out of the Indian Act regime for band membership, land management, and council elections.
This approach can be viewed as a strategic use of the Indian Act but, there are pros and cons to this approach. Using a paternalistic and discriminatory framework established by the federal government as a means to achieve independence from that same government is not without its problems. The powers in the Indian Act provide only delegated authority from the federal government and can be amended by the federal government at any time. The Indian Act and other federal legislation limit what bands can do, and in many cases the actions of bands are subject to approval by the federal government.
On the positive side, opportunities to opt out of the Indian Act enable First Nations to begin the process of reasserting and reestablishing independence quickly and efficiently. This can build community confidence while developing the capacity and growing the resources to pursue a treaty or other opportunities for self-government.
The Te’mexw member Nations have taken several steps towards self-government under the Indian Act and other federal legislation. What follows are just some examples.
Beecher Bay Nation passed its own Land Code in 2003, is undertaking significant land use planning work and developed its own Environmental Management Plan in 2012.
Malahat Nation passed its Land Code in 2014 and finalized its Land Use Plan in 2018. It also has its own Financial Administration Law and Property Tax Law.
Snaw-Naw-As Nation has its own membership rules, passed its own Land Code in 2011 and also has its own tax laws.
Songhees Nation passed its own Land Code in 2010 and was the first Nation in Canada to pass its own Property Tax and Assessment Laws, Financial Administration Law and Taxpayer Representation Law under the First Nations Fiscal Management Act.
T’Sou-ke Nation passed its Land Code in 2006 and has its own tax laws as well as a matrimonial property law.