Indigenous and Northern Affairs Committee on March 21st, 2013

[Dennis Bevington, NDP, Western Arctic, NT]

That's an interesting other point. It's not the point I was referring to, which is that by repealing section 82, the minister would no longer have the authority to disallow a bylaw. Most governments have review mechanisms for laws that are passed in their communities. At a higher level, we have the courts. Would you say then that first nations' bylaws would only be subject to court interpretation for their validity, fairness, and a sense that it works for...? Would you say that's the situation we should have?

[National Chief Betty Ann Lavallée]

No. What I'm saying is that as long as an Indian Act band is operating under the Indian Act they still have the same responsibility as.... Let's be straight. They are federal municipalities. We're talking about the law now. That's what they are; they are no different from any town, city, or village. They have a geographical area they are responsible for and for which they pass laws. They also have an obligation—which I hope we will address later, because consultation does go two ways—to publish, just like any city, village, or town, any potential changes to their bylaws so that their communities will be fully informed of these bylaws and have the ability to come before chief and council and debate them. It's called good governance.

[Dennis Bevington, NDP, Western Arctic, NT]

In the case of most municipalities there's a review structure for any bylaws that a municipality passes. If we simply remove this provision, then there is no review structure for any bylaws made by first nation governments. Do you think that's the direction we should go? Or should there be accompanying work with first nations to establish their own review mechanisms to ensure that the people on the reserves who are subject to the laws of that reserve are not being unduly taken up on their rights?

[National Chief Betty Ann Lavallée]

As I said, this is only a beginning.

[Dennis Bevington, NDP, Western Arctic, NT]

You're taking something away and not replacing it. What do you do in the meantime?

[National Chief Betty Ann Lavallée]

I'd love to replace the whole act. If I had it my way, this act would be gone today. The fact of the matter is that we're dealing with a couple of sections. I'm very open. We participated in JMAC and reviewed the whole Indian Act paragraph by paragraph, line by line. But unfortunately, it's the status quo, because there were some leaders who refused to accept it given that it would limit their authority. That's the status quo of how things operate on reserve in some cases. Unfortunately, we still deal with that today.

But this is a start. At some point, we have to start looking at this piece of legislation that is so out of date that it actually creates problems for aboriginal peoples, whether they're on or off reserve.

[Dennis Bevington, NDP, Western Arctic, NT]

You think the piecemeal approach for getting rid of the Indian Act.... I share your sentiments, but there is some concern here about this process. Is this the correct process to follow to redesign a law that applies to quite a number of first nation governments across the country?

[National Chief Betty Ann Lavallée]

If I had my way, I'd say let's burn it, but I don't. I have to be realistic, and I have to realize that change is not going to occur overnight. If we can, get everybody in the room who needs to be there and start looking at this piece of legislation as a whole, as the Liberal Party did. They were the ones who brought forward a first nations governance act, under Minister Nault. We did extensive consultations. We were part of the committee that was rewriting the Indian Act under JMAC. We've had a seat on JMAC. It would have brought in good governance and accountability and dealt with the bylaws. It would have dealt with all these things that everybody is talking about today. Unfortunately, it didn't pass. It went nowhere.

[The Chair, Conservative, Chris Warkentin]

Thank you.

We will now turn to Mr. Clarke for seven minutes.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you, Mr. Chair. I would like to thank the witnesses for making it here today. I guess they had a fun-filled journey trying to find the building.

First of all, what I heard is that the Indian Act in its entirety has to go. It's ironic because that is what one of my first drafts of my bill intended to do. My private member's bill was to repeal the Indian Act in consultation with first nations, and over a two-year period to implement new, modern and respectful language. After meeting met with first nations' leaders, organizations, and grassroots, we went from three drafts to my final and current fourth draft, which was submitted back in June 2012. My colleague Mr. Bevington mentioned the really interesting part here. I'd like to quote former Supreme Court Justice Ian Binnie for the record:

Canada’s Indian Act is riddled with "archaic features," but Parliament would be wise to phase in reforms rather than scrap it and start from scratch.

And...

I think the government will have to proceed area by area, with the aboriginal communities and range of interests, and pick off things that can be resolved today, abolish the related aspects in the Indian Act, and move forward in this piecemeal fashion.

This was back on April 12, 2012. It was on the CBC News Saskatchewan website. It's interesting because those are very strong words. This is from a Supreme Court justice who understands the laws of the nation and had to enforce or make decisions that affected Canadians and first nations across Canada.

There was another article by David P. Ball on March 1, 2013, on the launch of the missing and murdered women inquiry. He said this:

[The] Assembly of First Nations (AFN) urged politicians to collaborate on what National Chief Shawn A-in-chut Atleo called a “critical issue.” Atleo said in a statement that he hopes indigenous people’s voices are included in the committee’s work and that a core priority of the body’s deliberations must be to ensure that “our peoples are safe wherever they live.”

That goes into the bylaws and economic development and getting first nations away from the poverty created by the Indian Act. In my private member's bill, we also talk about meeting on a year-by-year basis. The minister has to report back to the committee on progress.

As a national chief, can you clarify whom you represent?

[National Chief Betty Ann Lavallée]

As I stated in my opening remarks, the Congress of Aboriginal Peoples—we were formerly known as the Native Council of Canada—has been around for 43 years. Our organization was started back in the seventies to address the issues in our province. It was five women who had been thrown off the reserve. They started the organization at the kitchen table because they basically weren't going to take it anymore. They were not going to lose their aboriginal and treaty rights because they had the audacity to marry a non-aboriginal person, whereas their brothers would marry non-aboriginal people and their spouses would gain status. If they brought children into the relationship, so would they.

This is who we represent. We have represented for over 43 years the interests of off-reserve aboriginal peoples from coast to coast. Just recently, as I mentioned in my document, the Federal Court of Canada has congratulated the Congress of Aboriginal Peoples on taking forward finally the constitutional question on who had the fiduciary responsibility. For a while there we were referring to ourselves as the “forgotten people”, “nobody's Indians”. We were in a vacuum. The province said it didn't want us. Unfortunately, the federal government said, “Well, no, you're not our responsibility”. When the Indian Act was first created, we were all included because the Indian Act included—it's very interesting, if you ever get the chance to read the memos and memorandums between the first minister of Indian affairs and Sir John A. Macdonald and those who brought all of us together. It was never meant to sustain us. At the time, the Indian Act was generated until they could deal with the Indian problem.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you, Chief.

There are some differences between first nations on reserve and first nations off reserve, or aboriginals off-reserve as well. Can you explain some of the differences?

[National Chief Betty Ann Lavallée]

First off, there is the term “first nations”. Everybody thinks there are 633 first nations in Canada. No, there are not. There are 633 federal Indian Act bands in Canada. There are 73 first nations in Canada. The Mi'kmaq nation, the Maliseet nation, the Cree nation, those are the nations. The Indian Act bands are an intricate part of the nation, but they do not make up the nation unto themselves.

I'm going to use New Brunswick as an example. There are five Maliseet reserves, Indian Act reserves. Those combined together, including those who live on the reserve and those who off the reserve, make up the Maliseet nation. That's why it is important. I had heard a question asking, “Who do we talk to when we're doing consultation?” The fact of the matter is that everybody has to be consulted. How you do that, if we're going to piecemeal get away from the Indian Act eventually, bringing ourselves back into the proper treaty relationship, is that everybody who would be a potential beneficiary of that nation—I'm going to use my own nation, the Mi'kmaq nation—would have to somehow be consulted to be able to make the transformation from the Indian Act back into our historical governing nation of peoples.

[The Chair, Conservative, Chris Warkentin]

Thank you.

We'll now turn to Ms. Bennett for seven minutes.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Thanks very much.

Thank you for coming, National Chief.

You've commented on the importance of the duty to consult. Obviously it was important that the member consult with you and your board. As you've heard from other witnesses before you and, I'm sure, in the media, there are serious concerns that the duty to consult hasn't been taken as seriously as people would think should be the case for a bill to have come to this place after second reading, to have been passed in principle, to have come to a parliamentary committee without really any response to negative feedback or an understanding that this piecemeal approach is upsetting people as we take the time and energy to do this instead of doing what many believe is the only way to truly get out from under the Indian Act, which is for the Prime Minister to actually lead a process to replace it, including the fiduciary responsibilities.

So my concern is whether, even though you were consulted, you think there has been sufficient consultation for it to be at this place, at this committee. This committee can't really do anything other than fix these fatal flaws, because it has already been passed in principle. The officials who have come before us have told us that the way this bill is written now, a band wouldn't be able to declare itself dry. There are serious problems that could have been fixed if there had been consultation, but as you, I think, know, a lot of people feel that the time and energy being placed on this private member's bill would be better spent by Parliament and by important stakeholders like you actually doing the big piece of work led by the Prime Minister of this country.

[National Chief Betty Ann Lavallée]

Dr. Bennett, I can't speak for other aboriginal organizations, but I do know, as an aboriginal leader, that when I first heard of Bill C-428, the very first thing I did was contact the member and set up a meeting to sit down and discuss it with him. Then I made the offer. I've been around long enough to know that there's never any money for consultations. I knew that with something this important, I would have to find a way to ensure that the people I'm responsible to had some sort of way to have input. As a responsible leader, I knew that my people were all coming together for our annual assembly, and I extended the invitation to Mr. Clarke to come and speak to them.

[Carolyn Bennett, Liberal, St. Paul's, ON]

I guess my understanding of the duty to consult is that it's the duty of the government to consult, not the duty of stakeholders to try to put something together in the best way they can. My concern is that there seem to be some opinions on the other side that because it's a private member's bill, there is no duty to consult. That has been said by some of the assistants on the other side, too, quite to the astonishment of some of the stakeholders.

[National Chief Betty Ann Lavallée]

I don't buy that. To me, consultation is a two-way street. It's give and take.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Do you believe that because this affects indigenous people in Canada, that for any private member's bill there is a duty to consult?

[National Chief Betty Ann Lavallée]

If Parliament wants to change the laws—because this could be a private member's bill coming from any party—and if it's going to affect aboriginal peoples and it's done with the best of intentions, then Parliament itself is going to have to start looking at them and putting resources aside for any member of Parliament to be able to do consultation.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Shouldn't the consultation take place before the bill is tabled and before it passes second reading?

[National Chief Betty Ann Lavallée]

Well, I'm not a parliamentarian. I'm just an ordinary person, so I'm not too familiar with how things happen in the House sometimes. I've seen consultation occur with aboriginal peoples after bills have been passed.

[Carolyn Bennett, Liberal, St. Paul's, ON]

But that isn't really in keeping with the duty to consult, is it? It's the things that are already passed that affect first nations, Inuit, and Métis peoples. The law then exists, as opposed to their being consulting beforehand. There is a law that affects indigenous peoples in Canada.

[National Chief Betty Ann Lavallée]

My understanding is that if this goes farther, there will be consultations.

[Carolyn Bennett, Liberal, St. Paul's, ON]

But it will have been passed; these things will have been changed.