A TROJAN HORSE

CAN INDIAN SELF-GOVERNMENT BE PROMOTED THROUGH THE INDIAN ACT?

Abstract

Section 90(1), first included in the Indian Act (“Act”) in its present form in 1951, deems “treaty” or “agreement” property to be situated on reserve. It is read together with sections 87 and 89 of the Act to exempt Indian property on reserve from taxation or attachment. Historically, all Indian property on reserve was broadly exempted from possible taxation or attachment. In McDiarmid Lumber Ltd v God’s Lake First Nation, the Supreme Court of Canada held that Parliament intended a narrow interpretation of section 90(1) such that only treaty-related property should be exempted in order to promote Indian self-government. I deconstruct the historical, social, and political events leading up to 1951 as depicted in Parliamentary records to demonstrate that the Court’s interpretation in McDiarmid is not supported by the record. I first argue that the promotion of Indian self-government cannot be achieved through the assimilation effect of the Act. Next, I argue that, because only half of the Indian population were treaty Indians in 1951, it was unlikely that Parliament would have contemplated only treaty Indians in making amendments to the Act. I conclude that McDiarmid-type decisions demonstrate dissonance in the Court’s interpretation of laws that impact Indigenous peoples. The consequence for Indigenous peoples is that the status quo remains.