Mr. Speaker, I am sad to say that the bill represents yet another of the bait-and-switch approaches of the government. In good faith, the first nations have suggested the need for legislation in a certain area. The government went forward and drafted a bill and then put in a poison pill that no first nation can live with.
This was to be an opt-in bill. That was the purpose of the bill, that first nations could decide whether to adopt the template for first nations elections as outlined in the bill. Then the government put in paragraphs (b) and (c) of one clause that give the minister unprecedented powers to impose it on a first nation.
Yet again, the Conservatives cannot help themselves. Why can they not listen? They pretend they do not know, but the bill actually came from the Senate and all of this was debated in the Senate. The Assembly of First Nations, the Atlantic Policy Congress and all of these people told the government that, and yet there is no concession that there needs to be an amendment and that these egregious paragraphs of the clause need to be removed.
The bill is to establish an alternative regime to the one in the Indian Act to govern the election of chiefs and councillors of certain first nations. Among other things, the regime would provide that chiefs and councillors hold office for four years. It would provide that the election of a chief or councillor might be contested before a competent court and sets out the offences and penalties in relation to the election of that chief or councillor. The enactment would also allow first nations to withdraw from the regime by adopting a written code that sets out the rules regarding the election of members of their council.
Although the Liberal Party is very supportive of what was the intent of the bill, we will be moving amendments that would remove the part that is so offensive to first nations in terms of, yet again, the paternalistic approach—father knows best—of the minister being able to impose this on what was intended to be a purely opt-in piece of legislation.
Although we will support the bill, and again we agree with the choice to adopt an improved election process over that contained within the Indian Act, we insist that Parliament must ensure that Bill S-6 does not give the Minister of Aboriginal Affairs new powers that go against the opt-in nature of this legislation.
For first nations that currently hold elections under the Indian Act, this opt-in legislation contains many improvements to the election process, including extending the term of office for chiefs and council from two to four years and removing the involvement of the minister and the department in the appeals process in setting out offences and penalties for corrupt and fraudulent activities.
However, given the opt-in nature of Bill S-6, it is unacceptable that the Conservatives have included a clause that introduces a new power for the minister to compel first nations currently under their own custom election code to go under the elections process established in the bill. The Assembly of First Nations calls this “inappropriate use of federal legislation”.
Further, rather than creating a new independent and impartial first nations elections appeals body, the government chose instead to refer the appeals process to the court system, which might prevent first nation citizens from bringing forward legitimate appeals, as the cost of going to court could be prohibitive.
While the bill is largely based on consultations with first nations, the Conservatives have included elements that were not supported during the consultations and have refused to remove or amend the offending sections. Yet again, the government has no idea what consultation means. Consultation means we go out and ask the questions and actually listen to the answers.
Consultation does not mean an information session, just dictating “take it or leave it” and then not coming back with the amendments or some evidence that we had heard what was said.
It is clear that no first nations, even the first nations who brought the idea of this bill to government, are in favour of these two paragraphs in clause 3 that give this unprecedented power to the minister.
As we said before, Bill S-6 is largely based on the outcome of a consultation process conducted by the Assembly of Manitoba Chiefs and the Atlantic Policy Congress of First Nations Chiefs, which resulted in the publication of the discussion paper, “Improving the System for First Nations Elections”, in October 2010.
The discussion paper identified problems with the election provisions under the Indian Act. There are 240 first nations in Canada that hold elections under the Indian Act electoral systems, 341 first nations that hold elections under their community or custom election code and 36 first nations that currently select their leaders under self-government agreements.
Bill S-6 would allow first nations under the Indian Act system or custom codes to opt in to the proposed legislation through a band council resolution.
The AMC-APC discussion paper identifies several reasons why there should be another option for first nations that wish to leave the outdated Indian Act system.
The term of office for elected chiefs and councils under the Indian Act is only two years, which places communities in a continual state of electioneering and undermines long-term planning.
The mail-in ballot is prone to abuse.
The appeals process to the Minister of Aboriginal Affairs and Northern Development is paternalistic and complicated and often takes too long to produce findings and a final ruling.
The absence of defined election offences and associated penalties, like those in the Canada Elections Act, allows alleged cheating and activities like selling and buying of votes to go unpunished.
The AMC-APC discussion paper made suggestions to remedy these concerns, which are included in Bill S-6: namely, the term of office is increased to four years; the mail-in ballot system is improved; the minister is removed from the appeals process; and new election offences and penalties are prescribed.
In addition to these concerns, the discussion paper as well as the May 2010 report by the Senate committee on aboriginal peoples, “First Nations Elections: The Choice Is Inherently Theirs”, suggested that a new and independent impartial elections appeal body be established to provide culturally appropriate and cost-effective appeals.
The government chose instead to refer the appeals process to the court system, which might prevent first nations citizens from bringing forward legitimate appeals, as the cost of going to court could be prohibitive. It appears that this is simply a transfer of costs related to appeals from the department to individual first nations citizens.
The Senate committee's observations on Bill S-6 also noted that, “...the proposed approach may not practically address the need for an expeditious and culturally appropriate appeals process”.
Bill S-6 is an optional piece of legislation and is clearly preferable for first nations that are dissatisfied with the current Indian Act system but have decided not to enter in a community or custom election code.
However, the bill as currently written, provides in paragraph 3(1)(b) the Minister of Aboriginal Affairs and Northern Development with explicit powers to bring first nations currently under the Indian Act system or a custom code under Bill S-6 if:
the Minister is satisfied that a protracted leadership dispute has significantly compromised governance of that First Nation;
Paragraph 3(1)(b) is deeply problematic for two reasons. First, it would give the minister new powers to place first nations, which are currently under custom code, under the new first nations election act, despite the fact that under current legislation the minister has no power to intervene in custom code first nations without a formal request from the first nation or a court order. The minister does have similar powers under the Indian Act, but not related to custom code first nations.
Second, the terms “protracted leadership dispute” and “significantly compromised governance” are not defined in the legislation. Paragraph 3(1)(b) should be amended to define these terms and clarify that paragraph 3(1)(b) does not apply to custom code first nations, which should retain the ability to choose if and when they wish to enter into new legislation.
I would recommend to the government and to the minister to read what happened in the Senate. Here on this side we are blessed to have senators who do extraordinarily good work. I commend to the government the six reasons as stated by Senator Lillian Dyck in her speech in the Senate as to why this bill needs to be amended.
She gives six reasons. The first is that no one agreed with these measures, except for the Department of Indian Affairs. The second is that it is unconstitutional; third, the minister gains new powers; fourth, there are better ways to intervene; fifth, there is no guarantee that the minister would not use the clause inappropriately; and sixth, it is just not the right thing to do in the 21st century, when we are trying to have first nations communities build capacity to develop their own custom code elections.
In her speech, Senator Dyck went on to quote from the organizations that had provided the genesis for this bill and explained that both the regional first nations organizations, the Assembly of Manitoba Chiefs and the Atlantic Policy Conference, who were the instigators of this legislation, were asked only for opt-in provisions with regard to paragraph 3(1)(b). She quotes Chief Nepinak of the Assembly of Manitoba Chiefs, who stated:
If I may, I would agree with a recommendation that 3(1)(b) and (c) be severed from the legislation. I agree with your characterization of these provisions to be reflective of a time that has come and gone, a paternalistic approach to management of the relationships within our communities.
She went on then to quote Mr. John Paul of the Atlantic Policy Conference, stating:
Imposing the will on a community externally has consequences. We have learned over the years that if anyone imposes their will upon communities, they are very negative about that kind of stuff.
Then she went on to quote Chief Jody Wilson-Raybould of the Assembly of First Nations, saying:
Unfortunately, the power set out in subclauses 3(1)(b) and (c) of this proposed bill . . . is actually an example of an inappropriate use of federal legislation, an inappropriate use of federal legislation I referred to at the First Nation-Crown gathering. These provisions essentially give the minister the ability to impose core governance rules on a First Nation, which, if ever used, would be resented by that First Nation, would not be seen as legitimate in the eyes of that nation, and would probably add fuel to an already burning fire.
Dr. Dyck then went on to quote the witness from the Canadian Bar Association, who stated that that clause should:
...explicitly exclude First Nations with self-government agreements and First Nations that are currently operating under customary systems of governance, unless their consent is obtained in accordance with either their customary practices or, in the absence thereof, by a double majority vote.
Witnesses from the Assembly of First Nations, she says, as well as the Assembly of Manitoba Chiefs and Chief Cook-Searson from Saskatchewan, all thought that paragraph 3(1)(b) should be deleted from the bill. The message was very clear: paragraph 3(1)(b) should be deleted because it is unacceptable practice in the 21st century and because without excluding the first nations operating under custom code elections, the bill goes beyond the scope of opt-in legislation for first nations under the Indian Act.
Dr. Dyck then went on to her second reason to delete the clause: its unconstitutionality.
She again quoted the witness from the Canadian Bar Association, who said that application of paragraph 3(1)(b) to first nations with customary systems of governance potentially infringes on constitutionally protected rights of self-governance. The witness stated:
Allowing the minister to prescribe a form of election for First Nations that currently operate in accordance with customary elections would represent a significant interference with protected rights of self-government.
She went on to quote the witness, who stated that:
The broad discretion afforded to the minister to include participating First Nations could then impact on constitutionally protected rights and international legal principles.
Dr. Dyck then went on:
In addition, while the government officials stated that the minister has ordered a new election only three times in First Nation elections in the last 10 years, and while they insisted that the minister would only do so in rare circumstances, such an action would be a continuation of archaic colonial practices and is completely contrary to the inherent right of First Nations to govern themselves.
She stated she felt that:
Granting such legislative power to the minister of AAND is particularly troublesome coming right after the Crown-First Nation accord in January, where National Chief Atleo urged the government to "re-invigorate the original relationships that were based on mutual recognition, sharing, and trust" and reset the agenda.
Dr. Dyck talked about the third reason to delete paragraph 3(1)(b), explaining again that new powers under the custom code first nations through this clause are unacceptable. She said:
There are 341 First Nations that operate under custom election codes. If Bill S-6 passes, the minister would be able to intervene in any protracted leadership disputes they may have, and such intervention would supersede the voluntary Custom Election Dispute Resolution Policy.
That is the policy that is now in practice.
Her fourth reason to delete paragraph 3(1)(b) was that:
...there are better ways to intervene in prolonged election disputes. AANDC witnesses stated it was necessary to order such First Nations to hold Bill S-6 type elections because in Indian Act elections there are no provisions defining election offences or setting penalties for such offences. However, this could be remedied simply by amending the Indian Act to contain the same provisions as in Bill S-6 that outline the offences and penalties. If the minister then orders an Indian Act election for a First Nation that operates under custom code, the Indian Act election would have the same offences and penalties as under Bill S-6.
The fifth reason Dr. Dyck cited was that:
...there is no guarantee that the minister will not use clause 3(1)(b) inappropriately. The department argues that First Nations can trust the minister not to use this clause inappropriately because the minister of AANDC has intervened only three times in the past 10 years; however, there is no guarantee that this will hold true in the future.
As we know, there is very little trust between first nations and the government at this time.
It is concerning to Dr. Dyck, as she has said:
For example, as pressure mounts to increase natural resource development on or near First Nation land, there is great potential for significant dissension, and as First Nation communities, provincial governments and private sector organizations try to negotiate agreements, there likely will be protracted leadership disputes in First Nation communities.
Her sixth reason was that it is simply not the right thing to do in the 21st century. I quote her closing. She said:
Honourable senators, please let us do the right thing, let us do the honourable thing: Let us pass an amendment to delete clause 3(1)(b). I outlined six reasons why we should do this. First Nations deserve our support in amending Bill S-6 to delete clause 3(1)(b). Please, honour their request.
