Manitoba Premier Wab Kinew raised eyebrows this week when he said the Indian Act must go. Not that he’s wrong; people have been saying so for decades, for all sorts of reasons. Even Prime Minister Carney initially agreed with him, although hours later he qualified his unrehearsed comments..GIESBRECHT: Wab Kinew advocates for abolition of the Indian Act — status cards have no place in Canada.But it matters that Kinew is the country’s only indigenous premier, and given the money that flows into indigenous communities via the Indian Act, what could he be thinking? To figure it out, retired Manitoba judge Brian Giesbrecht, a frequent contributor to the Western Standard, joins Nigel Hannaford on his show tonight..First, Giesbrecht’s view is that a modern country cannot sustain a race-based legal category that gives unique rights to one group, that others cannot possess.“New Canadians from India, China, or Africa have the same rights as everyone else. But we have this one group – status Indians who, for historical reasons, have an entirely different set of rights.”He’s not an optimist. “At some point, Canada has to bite the bullet and phase out what is a race-based system with no place in a modern country like Canada. But I don't think I'll be around to see it.”.Nevertheless, Premier Kinew is apparently of the same view. During a media scrum at the meeting between premiers and indigenous activists Monday, he pulled out his own status card and remarked, “It says your friend Wab Kinew is an Indian, within the meaning of the Indian Act. I'm not sure if that lines up with your vision of Canada, that we still have a race-based form of identification in this country. But this is a reality.”It is possible of course, that he was trying to change the channel. Recently, he offended indigenous activists by saying residential school denialism shouldn’t be criminalised, which has him pitching for the same side as Brian Giesbrecht.Giesbrecht is appreciative, though: “I’m not sure he knew exactly what he was saying, because it wasn't just the status cards that are race-based. The entire Indian system is race-based. So if he wants to make that point, I'm happy to vote for him.” (Giesbrecht is a Manitoba resident.)“But, I don't think that's what he meant to say.”.According to Giesbrecht, the Indian Act was only ever supposed to be a temporary thing. “Our founders wanted a Canada with equal rights for everyone. And the problem when Canada became a nation was that the Indians of the Northwest were in a terrible state. They were actually in danger of disappearing. And the founders believed that they should be protected until they could become mainstream Canadians. So they designed reserves as places of temporary sanctuary.”It was conceived then as a temporary solution to a temporary problem.As benefits flowed from this however, the status system was designed to determine eligibility. For that purpose if no other, it remains necessary..In any case, status Indians resisted the loss of a distinctive legal identity. As well they might; once substantial benefits attached to that identity, voluntary exit became rare. Later attempts at compulsory enfranchisement, including Pierre Trudeau’s 1969 White Paper, failed for the same reason.Giesbrecht again: “Special privileges, once granted, are hard to claw back. Population numbers that were perhaps 40,000 on the Prairies in the 1870s have grown dramatically. Intermarriage has further complicated the picture. Many people who today claim status or Indigenous identity have relatively little Indigenous ancestry. The system has produced both genuine claimants and 'pretendians' seeking health, education, and employment advantages.”Kinew’s recent remarks highlight the tension..Says Giesbrecht, “Kinew correctly called the status card race-based and said the Act should be wound up. But at the same time, the last 40 to 50 years have seen substantial gains for indigenous interests precisely through race-based mechanisms: modern treaties, comprehensive claims, and court-driven expansions of Aboriginal title under Section 35 of the Canadian Charter of Rights and Freedoms… nation-to-nation agreements such as those involving the Musqueam have treated large parts of Greater Vancouver as Indian land.”“Section 35 itself was not in Pierre Trudeau’s original constitutional package. Property rights were. The premiers largely traded the latter away and accepted the former only after the word ‘existing’ was inserted and they were assured the courts would not invent new rights. But, the courts did exactly that.”Whether Canada can still phase out what was always meant to be temporary is the practical question. Buying out interests, ending the distinct status system and returning to equal individual rights would be expensive and difficult. The income tax exclusion for on-reserve income alone, is potentially of enormous value. Provincial governments also provide valuable exemptions. But, it will be necessary if the country is to remain a single polity of equal citizens, rather than a collection of racial categories with permanent special claims. Premier Kinew is right that the time to do it has come. Just a bit surprised to hear him say so.The Hannaford Show uploads at seven o’clock tonight.
