Rotman Visiting Experts

Bob Joseph unpacks the legacy of the Indian Act

Episode Summary

Nearly 150 years old, the Indian Act continues to shape relations with Indigenous People across Canada. As communities, businesses, institutions and individuals begin or continue their paths of reconciliation, it's important to critically evaluate the role the legislation has played in getting us to where we are today. Bob Joseph, founder of Indigenous Corporate Training Inc and author of 21 Things You Didn't Know About the Indian Act joined us to talk about the lasting impact its had, and the role businesses and individuals play in dismantling its harmful legacy.

Episode Notes

Nearly 150 years old, the Indian Act continues to shape relations with Indigenous People across Canada. As communities, businesses, institutions and individuals begin or continue their paths of reconciliation, it's important to critically evaluate the role the legislation has played in getting us to where we are today. Bob Joseph, founder of Indigenous Corporate Training Inc and author of 21 Things You Didn't Know About the Indian Act joined us to talk about the lasting impact its had, and the role businesses and individuals play in dismantling its harmful legacy. 

Episode Transcription

Brett Hendrie: How much do you know you about the Indian Act? Whatever your answer, it’s important to understand that its main goal was assimilation — an eradication of the “Indian” way of life. Put into law in 1876, the Act centralized authority over Indigenous peoples with the federal government and gave it the right to determine everything from Indian status to personhood to where Indigenous people could live. It allowed for the forcible removal of Indigenous children from their homes and communities and place them in residential schools, which would later be described as “cultural genocide” in the 2015 Truth and Reconciliation Commission

Since the publication of the TRC report, many individuals, governments, and businesses across Canada have been attempting to accelerate their adoption of the 94 Calls to Action, which provide a framework about how every sector of society — from education to law to health to commerce — can improve Indigenous relations. 

Making those changes requires a clear-eyed view of history, and an understanding how Canada’s legal framework for Indigenous people became so harmful, and the Indian Act — a piece of legislation more than 150 years old and still in effect today — is at the root of much of that policy. As society, individuals and businesses move through journeys of reconciliation, it’s time we took a much closer look at the legacy of the Indian Act.

Welcome to Visiting Experts, a Rotman School podcast featuring backstage conversations on business and society with the influential scholars, thinkers and leaders featured in our acclaimed Speaker Series. I'm your host, Brett Hendrie, and I'm joined today by Bob Joseph. 

Bob is an author, professor and lecturer and the founder and president of Indigenous Corporate Training Inc, a consultancy focused on helping people and organizations build Indigenous relations. His clients have included Fortune 500 companies, all levels of government and community organizations across Canada and also internationally. 

Bob is a member of the Gwawa'enuk Nation, one of the tribes that make up the Kwakwaka'wakw traditional inhabitants of the coastal areas that we now know as Vancouver Island and mainland British Columbia. He is the author of the best-selling book 21 Things You May Not Know About the Indian Act, which is a must read for leaders looking to better understand the Indian Act, and its repercussions on Canada's Indigenous populations. Welcome, Bob to the Rotman School.

Bob Joseph: Thank you, Brett. And thank you, Rotman, and this is awesome. I'm so glad to be here today. Thank you.

BH: We're so delighted to have you here to first talk about your book, which has been incredibly well received. It's been on the best sellers list. I've had many people recommend it to me, and I really appreciate how it walks through the Indian Act with excerpts but also wraps those with context and analysis and quotes from the period. But for folks who are listening who are starting their journey to learn about what the Indian Act is, how would you synthesize what it is and why it's important that we understand more about it?

BJ: Great question going right back to the source and the beginning. So back when we Confederated in 1867, there were a bunch of piecemeal laws governing Indians in what had become Canada, and it was decided that we would consolidate all those piecemeal laws and come up with some new laws to add to it. And we would create this Indian Act. And the Indian Act would give Canada the coordinated approach to this new Indian policy,which was a policy of assimilation. Canada believed that the best thing that could happen to Indians as they would assimilate and become like everybody else

One of the things that we share with the learners is that the Indian Act gave control over Indians and lands reserved for Indians to the federal government — they became a federal responsibility at that time. We decided that, in order to be able to track that, we need to create a system, a KPI system, and what we would do is we would legally racially define them. An Indian agent would show up at your community one day with a pen and a piece of paper, and they'd say, “Name?” And you'd say, “Xmakhalese.” And they'd say, “Okay, Bob, Joseph, it is,”and they put my name down on a list, and I would become a category of Indian, a status Indian. And this was an assimilation process. The goal then becomes how do I get his name off of that list?

And so with that, we passed residential school compliance and attendance andbanning of potlatches and overthrowing of hereditary chiefs, and its effects today are still quite profound. [The Act] impacts Indians’ ability to define themselves as Indians, to be self-governing, and probably the worst one is self-reliance — they really are relying on federal programming and funding to run their governments and their communities, where before the Indian Act, they were completely self-reliant. They were hard working, participating in the political and economic mainstream. And so when I talk about it in the book, 21 Things, and some of the other things that I've written, we're looking for three things: self-government; self-determination, nobody in auto gets to tell us who our people are; and self-reliance, we’ll participate in the political and economic mainstream of this country, but in a way that protects our cultures. 

BH: One of the really fascinating ideas that I took from your book was the notion how misguided the Act was because paradoxically, if the goal was assimilation, it really didn't accomplish that because it created all of these economic and social barriers for Indigenous populations. Can you share some of the examples of how it was counter effective in that way?

BJ: I can share it from my own experience. Mid 1990s — sorry, dating myself a little bit old in terms of business — but, you know, I finished college. I studied Business Administration, I was married, had a really stable utility job. I studied credit when I was in college, and I knew that there were these things called the four C's of credit and that I met all of those. One day I was shopping for a vehicle in a firm in Burnaby, British Columbia, and made a deal with the salesperson, they shipped me off to the Business Services Manager. So this business service manager said, “What do you do?” I said, “I'm in communications.” So she said, “What kind of communications?” I said, “Corporate communications,” and, and she said, “What kind of…” you know, and I thought, okay, she's not going to give up here. So I said, “If you must know, I'm an Aboriginal awareness, cross cultural trainer, I teach people how to work with Indigenous People,” or Aboriginal Peoples would have been the terminology of the time. And she said, “Oh, are you status Indian?” And I said, “Yes.” And she said, “Oh, okay. Well, we can definitely arrange to have the vehicles delivered to the reserved for you because you don't want to have to pay the GST.” And section 87 of the Indian Act says they're not subject to seizure under legal process. So she's like, “Yeah, so what we'll do is we'll deliver it to the reserve, but tell me, do you have somebody who can cosign for you?” And I said, “What do you mean?” And she said, “Well, we're going to need a cosigner.” And I said, “Are you sure because BC Hydro — pretty stable utility, got a full time job, I’m married, you know, like all of the Cs of credit.” She said, “Yeah, you know, the problem is, if you drive it to the reserve, reserves aren’t subject to seizure under legal process. So if you stop paying for it, we can't come and repossess. And so we're going to need a cosigner.” So I had to get my wife who's non Indigenous to cosign for me. 

Still recently, not only could I not borrow the money, but I couldn't get insurance on a residential property that I wanted to live in. And so it seems like a really old document going right back to Confederation, but it's still there doing what it was designed to do. Even though I think it's fair to say we've largely abandoned, forced cultural assimilation, it's like a drift net that's been separated from the ship at sea — the ship's not connected to it anymore, but it's still doing what it was designed to do, catch and kill fish – the Indian Act is still doing that.

BH: I think that story is so powerful because for some people, they may think that it’s this ancient document from over 100 years ago, but it clearly still has ramifications today and is clearly still creating barriers and burdens to economic engagement. And it certainly does not engage in any type of assimilation. 

I want to talk about land. It seems so central to how Indigenous communities and the Canadian government have interacted over the years, and you speak in your book about the creation of reserves, and how these have been really a barrier to Indigenous populations engaging in full economic opportunities. Can you share a little bit about the history of reserves and why we need to understand why they’ve been so detrimental to Indigenous folks?

BJ: The idea of a reserve it's basically a holding pen. It's a place where we're going to put them until they assimilate. Indians living on reserve, you can ask them the on this, Bob. Oh, yeah, that's fine. My family has been here for 16 generations or 127 generations — whatever they feel their history is — and they don't own the lands that they live on. The title is vested in Her Majesty, so they are parcels of land set aside for the use and benefit of [the] band, and you don't own it.

So let's say I I've got a business that sells services to Hydro One, all I need as a little bit of money that I can maybe increase my sales to Hydro One. They're doing their reconciliation and their Indigenous relations, and they're reaching out to do procurement on their side. We could come to a pretty good arrangement, but I still might have trouble raising the funds to help provide transistors or whatever widget it is that we need. That's something that the Indian Act still does, we want to do economic reconciliation, we're actively seeking procurement people, but they can't get the banks to lend the money, especially if they're working off the reserve, and they don't have collateral because they don't own the house or the land they live in — so a couple of big strikes that makes it pretty tough.

BH: It's so interesting as a legacy of the Indian Act, how not owning the real estate has had this negative consequence, especially in a country like Canada, where so much wealth is being transferred in between generations through real estate. One of the other legacies of the Indian Act that I wanted to explore with you is its discrimination against women. And I was hoping you could share with us a bit of history of how the Act treated women, and what some of the repercussions are to this day.

BJ: So we're trying to assimilate we need to find ways to make that happen, and intermarriage would become a really key feature of that whole process. And so Indian women all the way up until 1985 who married non-Indian men — that could be anybody from any culture — would lose their status, and so would their children. And if you lost your status, you have to leave the reserve. That that really has hurt women particularly that they would leave that status through marriage, where the men didn't. And again what was motivating it was that we're trying to get their names off the list.

BH: One of the other areas that you really speak about quite movingly in your book is education and some of the educational provisions in the act. And you write that residential schools were “the most aggressive and destructive provisions in the Act.” And I think for a lot of Canadians who learned about the residential schools in 2021 through Kamloops and the discussion that happened around that, it's been it's been quite shocking. As somebody who has really studied the history, can you share with us what are the most important things that we need to understand about the residential schools?

BJ: So they were, I think, our most aggressive effort. I mean, all the other effort is not light either. But the idea that we would forcibly remove the children from their kinship group today is considered genocide. But the ideology was if we could separate the kids from the families and communities, we could go a long way to this assimilation process. And so, Indian Act legislation allowed for the forced removal of Indian children from the age of six to 16, to go to church-run government-funded institutions that were geared specifically to the process. And, when I first started doing this work in BC Hydro, about the fourth workshop in I remember this lady coming up to me on a coffee break, and she was crying. She had tears streaming down her face. I don't like to think I'm a meanie, and I try not to make people feel emotional. I tried to create a really safe space for learning. And I said, “What's wrong?” She said, “I can't believe you.” I said, “What do you mean?” She's like, “Well, I can't believe my church would be involved in what you were just talking about. And then the government?” For her, it was like listening to somebody with conspiracy theory. So I had to explain, “Look, I work for a Crown Corporation, I can't just come out here and say anything I want. This is valid and reliable information that's been researched. And you're going to learn a lot more about it over the years. And if you haven't heard, you can go take a look at the Truth and Reconciliation Commission traveled across the country for five years, capturing stories of Canadians and residential school survivors. They call themselves the people that went to those schools. And you can see how dark a chapter it really was.”

For me, Kamloops and the 215 was the mirror for Canadians, we kind of held the mirror up and had to really look at themselves. And that's not a bad thing. I think reconciliation is such a positive force, it gives us an opportunity to move past all of that. 

I get asked all the time, what do you think government should do? And I always say, look, I hope they do a lot, but I'm not betting on government, I'm really betting on Canadians, I'm betting on them to continue the calls to action, which are, learn about the history of the culture, the UN Declaration — those kinds of things. And understand that reconciliation is not a short-term thing. It took us four generations to get into this mess. I hope it's not going to take us four to get out, but I also realize it's not going to happen in five years or 10 years. 

BH: Among other calls for action from organizations, the TRC asked businesses to committing to meaningful consultation, building respectful relationships, and obtaining the free, prior, and informed consent of Indigenous peoples before proceeding with economic development. Considering the work you’ve done with organizations, what are the risks to companies that don’t take into account this particular request for meaningful consultation?

BJ: If you're engineering, if your environmental management, you don't get away from Indigenous relations. It's been because of reconciliation, and some of the commitments that have been made — everybody gets to do some of this. And that's what I tell my clients, I say, “look, you're gonna spend $4 billion on this project, you have to make sure that some of it through your consultative efforts gets to First Nations, Inuit, Metis Peoples if they're impacted by your operations.” And you're probably going to tell me, “No, we don't do that for anybody.” But not everybody has Section 35 rights like they do. If we build a pipeline or a road across farmland, we're going to take some of your farmland away, Brett, we're going to compensate you for that because you have a legal interest in the land. And so I spent a lot of time, educating people on this legal interest in land — they have a legal interest, and it's not been defined, and nobody knows what it's worth. But you've got to figure out some way to come to an agreement while the law gets sorted out in Canada. And we're still working on the legal piece for the duty to consult it's called. You think about just some of the big infrastructure projects, if we don't get it right — Coastal Gaslink, Wet'suwet'en blockade — it's not a $4 billion project, it's a $24 billion project. [They ask] “Why would we do this for them, we don't do it for anybody else.” Because, “if you do it the other way, it's going cost you $20 billion more, I think I can get it for cheaper. I'm just saying.”

BH: The consultation piece is so fascinating. And I'd love to hear your thoughts about how companies and individuals who are trying to engage in meaningful consultation can do it in a way that it's not a checkbox requirement. And I'm especially thinking about the reality that Indigenous communities are not a monolith. And there are surely diverse perspectives and opinions on any given issue across different Indigenous communities. So, in your experience, what have you seen has been the most effective ways of doing that consultation, even when there's a diverse range of opinions out there?

BJ: Now you're in the duty to consult world and when is it adequate meaningful consultation, and when is it enough? Those are the great questions of our time. And what I tell people is, in order to know when it's adequate and meaningful, first of all, you have to understand a little bit of a constitutional lens. So when we look at Section 35 of the Constitution Act, Section 35, one states that we’re to recognize and affirm the existing Aboriginal and treaty rights of the Aboriginal Peoples of Canada. So I always tell people, if you want to know and you've done adequate and meaningful consultation, you'll know when you've recognized and affirmed the rights that they've told you, they're concerned about. Once those are addressed, you've done a good job of consulting and if you haven't, you're going to end up in court. So very straightforward test. So now that we know that we’re to recognize and affirm, what is adequate and meaningful consultation. I'll give [class participants] an exercise and I'll let them go for like half an hour, I need nine words from you — they've got to be kind of legal focused and easy to explain to me — what the goal of consultation? We get all kinds of warm fuzzy; starts talking, give and take and reconciliation. But the real answer is: when you've avoided the unjustifiable infringement of constitutionally protected rights, then you've done adequate and meaningful consultation, which is the flip side of the coin, we hereby recognize and affirm the existing Aboriginal treaty rights of the Aboriginal Peoples of Canada. So honestly, if you can do that, those consultation coordinators make $1,500 to $2,500 a day just because they know the answer to the question, what is the goal of adequate and meaningful consultation. 

BH: That’s a great litmus test and their way for people to really understand the stakes.

BJ: And then the piece that gets us into trouble about adequate meaningful consultation is our timelines. So we're so Gantt Chart focused and timeline focused, right? And the engineers got it planned out to the day and how much money it's going to cost when we miss the completion line. I can tell you when things are going to go good or going to go bad about five years before they go good or go bad, right, and usually go bad. Go good, I can tell you sooner, because I know the risk has been managed when, say, a mining company has consulted with a community or communities and they show up with an Impact and Benefit Agreement. And what that means is, we know there's going to be impacts on your rights through our mining activity. But here's the benefits — employment, procurement consultation, all of the things that might show up in an impact benefit agreement. If I see one of those, and if I were buying stocks on industrial developers, I'd look for the folks that that understand this piece and invest in them. They've got an impact benefit agreement, they're probably going to get to build when they say they're going to build, right. And the ones that don't, are the ones that are trying to push things through, they've got timelines, they can't wait

BH: One of the things that I wanted to turn to as we begin to wrap up is your thoughts about what would be the most consequential reforms that we could look to now. The Indian Act is still with us today; government and Indigenous populations recognize that it's a flawed and destructive framework. What can we look to to repair some of the damage that it's done?

BJ: So the two we have right now — and it's called DRIPA legislation, the Declaration on the Rights of Indigenous People Act is what it stands for. And it comes from the United Nations Declaration on the Rights of Indigenous Peoples. Within [DARPA’s] provisions, there's this principle, ILO 169. It means Free Prior and Informed Consent, FPIC, it's called. And so I think FPIC gives us a chance to really start to explore how we get beyond the Indian Act. 

The very first thing it says [Indigenous People have] got to be free of outside influence and coercion. And so what does that mean? Well, when you look at some of the big pipeline infrastructure stuff in British Columbia, can the government of Canada create something —a band Council — and then go to it for decisions about a pipeline? Right now, to take that approach would be in violation of their own DRIPA legislation. It would not be free because those band councils get their money from the federal government — there are strings attached. Whether you're going to go into the government or to businesses, you're going to start really thinking about the free piece. Okay, who do we talk to when it comes to adequate and meaningful consultation? We knew that in Coastal Gaslink, one of the big messages coming out over years was, “We have signed agreements with all of the elected councils all along the pipeline, right.” And so you knew, just by that statement, that they were not talking to the hereditary chiefs, or they were talking, but they weren't giving it any weight at all, and, that was the friction point. That was the inadequate, not meaningful consultation. It was slated to be a $4 billion project. But when you factor in the railway, blockades and port blockades and policing events across the country that we're all that all erupted out of it, it's like a $24 billion project. And in fairness to [John] Horgan, who is former premier of British Columbia, he said, “You know, what just happened there, we're probably not going to do it that way again,” which I took as a signal to say, we're not just going to talk to the band chief and councils anymore, we are going to look for hereditary chiefs or traditional leaders. 

When I’m talking to the developers, or you go into mining, forestry, highways, construction, whatever you’re going to consult on, I always tell you, if you want to hedge your bets, you’re going to consult with the elected Chief and Council, you’re going to consult with the traditional leaders, and you’re going to reach out to the whole community and make sure they’re all on side because the rights are collectively held by a group of people, they have individual and collectively held rights. And so the best way to hedge your bets is to talk to everybody, make sure they’re all supportive and not ignore one side over the other. And I think we can make some great inroads in terms of consultation.

Informed, we’ve got to make sure they have information about decisions. [Indigenous People have] always said, “Look, we're not against development, but it can't be development at all costs.” So they really want us to focus on the environment, and to do that they need information. And they got to be informed by reliable sources. “So you got a problem with our project. Do you want our hydro lawyer?” That’s not going to work that well. Right. And, and so they need their information. 

And then prior, we want to do it prior. In the old days, when I first started doing this work, you had 30 days to respond to permit requests. And if you didn't get a response, the first flowchart I saw in 1994, said, “Send letter to band. No response, go to permitting.” Right, it was like, wow, today, you don't you don't get anything done without years of consultation. And if you do try, you end up in a really bad spot. 

And of course, consent. If you have their consent, especially if you get it before you open up a legal and regulatory process, it's going to go easier for you in terms risk management. That is the best approach, go talk to them early, get their consent, then go to the regulator to say, “We want to do X.” And they'll say, “You got to talk to First Nations.” You can say, “We have, here's the impact and benefit agreement.” It speeds everything up, it makes it all certain. Certainty, that's what people are looking for. And Canada does need Indigenous peoples to be supportive. If you want a climate of certainty, economic certainty, really is contingent upon how well we're working or not working with Indigenous peoples.

BH: So adopting the UN resolution really, would be a path for us at a systemic and governance and organizational level to adopt change. But as we wrap up, I'd love to hear what are your recommendations and suggestions for individuals who want to bring about change within their workplace and within their communities? And what are the most important things that each of us can keep in mind?

BJ: I think the first thing is, you know — and thanks for wearing the orange shirt — I think is that we pay attention to the Calls to Action, and that we actually do some of the things are asking. So people say to me, “But can I do that? Like, how far do I get into this?” And, you know, there's even fears about what they can and can't do and whether it's appropriate or not. And I always tell people, “Look, you have a direct invitation from the survivors of residential schools. They are asking you to do this and to get involved, and to learn and to share with your families, your communities, your church groups, your businesses, especially.”

And I think for those of you going into business there, there's hardly a business that isn't touched by Indigenous objectives. They’ve got reconciliation objectives, they've got duty to consult. And I've always said, we train everybody from the Fortune 100, all the way through to nonprofits, like the Ontario SPCA and Canadian National Institute for the Blind, I mean, everybody is doing this stuff. I would really think about the Truth and Reconciliation Commission, look at the Calls to Action— there's one for academia, there's one for businesses, there's one for all levels of government, you know, there's one for church groups. So there's tons of great stuff there

BH: Well, that’s great advice and guidance for all of us. And I’ll certainly echo that the Calls are so great, because they’re so clear and direct in what they’re asking people in businesses and communities to do, Bob, we so appreciate you being with us here at the school today and for being on this podcast and sharing your deep knowledge and understanding about the history of our country and everything that we have to reckon with. For people who are interested in finding out more about you and your work, where should people go?

BJ: They can go to our website Indigenous corporate training, Inc. And thanks for allowing me the opportunity to do the shameless marketing plug. We have over 1,000 articles, we've got free eBooks, “23 Things to say…” and “23 Things Not to Say” in terminology. And there's a ton of free resources there for people. And then of course, there's books and other things like that.

BH: Great. Well, we'll check out the website and again, the book Is 21 Things You May Not Know About The Indian Act. Bob, again, thank you so much for being here. 

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