Overlapping Consensus, Legislative Reform and the Indian Act

Calls to abolish the Indian Act and to reset the relationship between Aboriginal people and the Crown dominate the academic discourse. The author proposes something different. He suggests that the Government of Canada and First Nations work within the framework of the Indian Act to find areas of agreement. In doing so, the author draws on Rawls' theory of "overlapping consensus": the idea that two parties with opposing viewpoints, or "comprehensive starting positions", can find areas of agreement without abandoning their respective starting positions. Despite the Crown's and First Nations' very different conceptions of the nature of their relationship, if overlapping consensus can be found on both the changes to be made to the Act and the principles that underlie those changes, progress can be made without asking either party to compromise on its foundational beliefs. The author identifies financial accountability, membership integration and financial integration in First Nation communities as areas ripe for overlapping consensus on necessary reforms. He proposes that members of a First Nation community should be entitled to have their income tax payments directed to their community. This would mean that First Nation communities would finally have the incentive to admit non-status Indians as new members because the communities would receive increased funding for each member through his or her income taxes. The tax redirection plan would further combine accountability and integration, and it would represent a reform that could begin to set the Indian Act on a better path