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Idle No More protester: One of the most inflammatory claims coming from the movement is that Bill C-45 has deliberately made it easier to sell off Indian reserves (Fred Chartrand/The Canadian Press)
Idle No More protester: One of the most inflammatory claims coming from the movement is that Bill C-45 has deliberately made it easier to sell off Indian reserves (Fred Chartrand/The Canadian Press)

TOM FLANAGAN

Bill C-45 simply makes it easier for first nations to lease land Add to ...

One of the most inflammatory, but inaccurate, claims coming from the Idle No More movement is that Bill C-45, the second budget implementation act, has deliberately made it easier to sell off Indian reserves. A little background information is necessary to understand what has actually happened.

Many first nations have achieved economic success by leasing portions of their reserves for shopping centres, industrial parks, residential developments, casinos and anything else that might make money. Such projects create jobs and generate property tax revenues that first nations need to provide better services for their members.

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Yet, success has been hard won because of cumbersome procedures prescribed by the Indian Act. Designation of land for leasing had to be approved by majority vote in a referendum or band meeting for which the quorum was a majority of members – in other words, approval by a majority of a majority. If, as usually happened, the quorum was not achieved, the Minister of Aboriginal Affairs could authorize a second meeting dispensing with the quorum.

This two-stage procedure typically added six months to the duration, and tens of thousands of dollars to the cost, of designation. At the other end, approval for designation had to be granted by order-in-council – that is, a formal resolution of the federal cabinet signed by the Governor-General – meaning more months of delay.

First nations pursuing economic development have complained for years that the slowness of these procedures caused extra expense and sometimes even the loss of lucrative projects to competing jurisdictions able to move more quickly. Bill C-45 responded to these long-standing concerns by making two changes: (1) replacing approval by order-in-council by approval of the Minister of Aboriginal Affairs; and (2) replacing the requirement for a majority of a majority with simple majority rule – the same way the chiefs of first nations are elected.

These amendments do not force first nations to do anything. They only make it easier for those who want to lease land to do so. And only leasing is involved; the rules governing sales of reserve land remain unchanged.

The House of Commons standing committee on aboriginal affairs considered these amendments on Nov. 19, and several prominent aboriginal leaders gave evidence. All agreed that the changes would streamline the designation process. Some wanted to dispense with community referendums and federal approval altogether, thus giving first nations the same power to manage their lands that Canadian municipal governments enjoy. Even the lawyer representing the Assembly of First Nations cautiously endorsed the substance of the amendments while opposing their passage, saying there hadn’t been adequate consultation with first nations.

Consultation has become a shibboleth of our time. It is, indeed, an essential part of democracy, but it can also become a constraint on freedom. Prolonged consultation may give some people a veto to prevent other people from exercising their own rights. In this case, there was well-documented dissatisfaction of numerous first nations, extending over many years, with the rigidity of Indian Act leasing rules. The government responded to their complaints by amending the Indian Act, thus making it easier for them to take initiatives to improve the welfare of their own people. Nothing in these amendments requires other first nations to do anything at all.

This, by the way, is in accord with first nations’ long political tradition of fierce independence. That’s why they call themselves “first nations” rather than “first nation”; they are many peoples with their own unique histories and visions of the future. The consultations required to modernize and eventually replace the Indian Act should not become a straitjacket for those first nations that have already begun to determine their own economic future.

Tom Flanagan is professor of political science at the University of Calgary and a campaign manager for conservative parties.

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