Bill C-428 (Historical)

Indian Act Amendment and Replacement Act

An Act to amend the Indian Act (publication of by-laws) and to provide for its replacement

This enactment amends the Indian Act to require band councils to publish their by-laws and repeals certain outdated provisions of the Act.
It also requires the Minister of Indian Affairs and Northern Development to report annually to the House of Commons committee responsible for Aboriginal affairs on the work undertaken by his or her department in collaboration with First Nations and other interested parties to develop new legislation to replace the Indian Act.

Indian Act Amendment and Replacement Act

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, I just want to mention that Leo Baskatawang marched to highlight indigenous rights and the Indian Act. I will not have time to do talk about all of the things he did, but he brought to the fore the point that most indigenous leaders agree that it is essential that legislation written by indigenous people for indigenous people is the way to go. There was a consensus on that. The government may choose to disregard it, but the reality is that if it plans to overhaul the Indian Act and change the provisions for wills, which could actually download more responsibilities onto the provinces, it needs to involve the people who would be directly affected by it. It cannot do it unilaterally as it is proposing to do.

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

Mr. Speaker, the debate tonight is about a very serious matter. In January, the Prime Minister stated:

Our government has no grand scheme to repeal or to unilaterally rewrite the Indian Act: After 136 years, that tree has deep roots; blowing up the stump would just leave a big hole. However, there are ways, creative ways, collaborative ways, ways that involve consultation between our government, the provinces and First Nations leadership and communities, ways that provide options within the act, or outside of it, for practical, incremental and real change.

At that same meeting the National Chief of the Assembly of First Nations, Shawn Atleo, said this with respect to the Indian Act:

Like a rock that sits in the middle of the road, a boulder that blocks the path of collaboration, remains

—as we have been saying here—

the Indian Act, along with the age-old structures and policies that administer it and steadfastly resist change.

I am sorry that we have to raise this here tonight because it means that the government has not taken this solemn promise of the Prime Minister seriously. He said in January that the government would not repeal or unilaterally rewrite the Indian Act and indicated that any future changes would be developed in consultation with the government, the provinces and first nations communities. I am afraid that a backbencher's private member's bill is not an appropriate consultation for this very serious relationship with first nations in this country.

This kind of change must be undertaken by the Prime Minister in a government-to-government way. Now we have a member of Parliament moving legislation to unilaterally change the Indian Act with no prior consultation.

All private member's bills should include consultation before they are tabled, and when they are drafted and afterwards. None of this happened, which extremely egregious when dealing with an issue concerning first nations.

If the member had consulted, he would have heard loudly—

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

You used the first nations for your own benefit.

[The Acting Speaker, Conservative, Barry Devolin]

Order. I would ask all hon. members who do not have the floor and wish to remain in the chamber to control themselves. If they cannot control themselves, maybe they should leave the chamber.

The hon. member for St. Paul's has the floor. I would ask that all hon. members listen to what she has to say.

The hon. member for St. Paul's.

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

Mr. Speaker, if the member had consulted, he would have heard very loudly that first nations were not finding this appropriate. They want a formal discussion with the Prime Minister and the cabinet as to how to change the Indian Act. Even for the Kelowna accord, the Prime Minister and the cabinet met with first nations leadership and Inuit and Métis for 18 months before that accord was tabled.

First nations groups have clearly stated that the current bill is paternalistic and was not the subject of consultations.

If he had consulted, he would have been persuaded, I believe, to put his energies into something else that would have improved the quality of life of Canadians, especially first nations, if that was his choosing. Tinkering with the bill is not appropriate.

Let me be clear. The Indian Act is the embodiment of failed colonial and paternalistic policies that have denied first nations their rights and a fair share in resources, fostered mistrust and created systemic barriers to the self-determination and success of first nations.

However, the elimination of these barriers requires the government to initiate a formal process of direct engagement with first nations, on a nation-to-nation basis, which focuses on replacing the Indian Act with new agreements. These agreements must be based on the constitutional treaty and inherent rights of all first nations, the historical and fiduciary responsibility of the Crown to first nations.

The standards established in the UN Declaration on the Rights of Indigenous Peoples include the principle of free, prior and informed consent, respect, recognition, reconciliation and support for first nations, a partnership and mutual accountability for the Crown and first nations and the stability and safety of first nations.

The member for Desnethé—Missinippi—Churchill River spoke at a Federation of Saskatchewan Nations Assembly this summer, but did not even allow questions or seek input from the assembled leaders. This would have been an ideal time for him to consult and hopefully listen to what the people thought.

If the member had done even a basic consultation, he would understand that the issues he is dealing with in this bill are not what first nations leadership is calling for across the country.

These leaders are demanding the adoption of a process that would go beyond the Indian Act, a process rooted in nation-to-nation relationships and based on consultations and collaboration that respect historic and legal rights, a process that would require the federal government to respect its historic and fiduciary responsibilities towards the first nations.

The member has seriously missed the mark with this private member's bill, and I was extraordinarily surprised, like my colleague from the New Democratic party, today in question period to hear that the Minister of Aboriginal Affairs and Northern Development agreed. For him to say that the Conservatives will support the bill in principle and hope to see it pass into law is exactly the opposite of what the Prime Minister promised in January to the assembled leadership of the first nations.

I encourage the member to read carefully the motion put forward by the leader of our party, the member for Toronto Centre, whose motion will be debated on Monday. It puts in place a proper formal process to work with first nations to actually make this egregious wrong right. It says:

That, in the opinion of the House, the Indian Act is the embodiment of failed colonial and paternalistic policies which have denied First Nations their rights, fair share in resources; fostered mistrust and created systemic barriers to the self-determination and success of First Nations, and that elimination of these barriers requires the government to initiate a formal process of direct engagement with First Nations within three months of passage of this motion, on a nation-to-nation basis, which focuses on replacing the Indian Act with new agreements based on: (a) the constitutional, treaty, and inherent rights of all First Nations; (b) the historical and fiduciary responsibilities of the Crown to First Nations; (c) the standards established in the United Nations Declaration on the Rights of Indigenous Peoples, including the principle of free, prior, and informed consent; (d) respect, recognition, reconciliation and support for First Nations; (e) partnership and mutual accountability between the Crown and First Nations; and (f) stability and safety of First Nations; and that this process be completed within two years before reporting with a series of concrete deliverables for the government to act upon.

This has to be a step toward self-government. This is a process that has to be taken at the highest level of our government and its cabinet with the leaders of first nations and must be developed bottom up. This is about self-government. It is about allowing first nations to develop the process and then develop the concrete deliverables to which they will ask the Government of Canada to agree.

I am pleased the member presenting the bill has decided to be quiet now. The way the Conservatives heckled the member for Nanaimo—Cowichan was completely disrespectful. This is a very serious issue. We on this side of the House take it very seriously. I hope the member will be here for the debate on Monday night as a formal process will be described. I hope they will support the member for Toronto Centre's motion.

[Chris Warkentin, Conservative, Peace River, AB]

Mr. Speaker, it is a privilege for me to rise today to speak in support of this private member's bill brought forward by my friend and colleague from the Conservative Party.

The member who brought this forward is the right person to bring it forward. So far in this debate, he is the only one who has ever lived under the Indian Act. I and my colleagues from the other parties who have spoken do not know the life that is lived under the Indian Act like that member.

In fact, I did not agree with much that my friend from Nanaimo—Cowichan said in her speech today, but one quote she did give, which I fully agree with, was, “A bill wrote by indigenous people for indigenous people is the way to go”. That is exactly what we have happening in the House tonight. We have a bill that has been written by a person who has lived under this act, a bill that would rectify some of the most egregious portions of that act.

My colleague just recently suggested that my friend and colleague who brought the bill forward should be silent. I would suggest it is no longer appropriate for my friend to be silent. He has worked to become elected to the House of Commons. He has overcome the travesty that is this act and overcome past injustices to reach the House. He has every right to bring forward a private member's bill and to be heard in the House. I will defend every member's right to do the same thing, to bring legislation forward to change other legislation. I will continue to advocate for that right for my colleague.

Today we have before us this legislation. At the core of this proposed legislation is the acknowledgement that the Indian Act is holding first nations back from achieving their whole social and economic potential.

Bill C-428 is the Indian Act amendment and replacement act. It proposes a series of amendments to the Indian Act that will lead to healthier, more self-sufficient first nations across the country.

At the same time, the bill recognizes the change that must be made in a systematic and thoughtful manner that provides first nations with the tools and the time that they need to eventually transition completely out of the Indian Act. That is consistent with the government's approach, providing first nations with practical, incremental and real alternatives to the Indian Act.

I quote the Prime Minister's speech at the historical First Nations Gathering last January when he said:

The Indian Act cannot be replaced overnight, but through the use of existing tools and the development of new mechanisms, both parties can create the conditions to enable sustainable and successful First Nations.

The bill proposes concrete action that will provide greater autonomy for first nations, lessen the role of the ministerial involvement in the day-to-day lives of first nation citizens and give back the responsibility for several key areas, such as bylaw-making powers and the administration of wills and estates, to first nations where it rightfully belongs.

As my colleague as so appropriately described, quite simply, the bill proposes to do a number of things. First, it will require the Minister of Aboriginal Affairs and Northern Development to report annually to a parliamentary committee on the action taken in partnership with first nations and other interested parties to develop new legislation to replace the Indian Act. Second, it will remove the minister's role in the administration of wills and estates and the approval in voiding wills. Third, it will remove the minister's bylaw disallowance powers. Fourth, it will remove many of the outdated and archaic provisions of the act. Finally, it will repeal all references to residential schools and the removal of the outdated schools-related provisions.

These changes are consistent with the direction that our government has taken over the last six years. It is focused on bringing forward initiatives that will unlock the economic development potential by removing certain barriers to first nation governance that currently exist under the Indian Act.

Ultimately, this would lead to the development of strong, accountable and prosperous first nation communities, where first nation citizens would have access to the same rights as other Canadians.

The proposed amendment to repeal all provisions relating to residential schools is particularly symbolic and important for first nations people.

On June 11, 2008, the Prime Minister of Canada, in this House, made an impassioned and heartfelt apology to the first nations people of Canada for the treatment of children in residential schools, a sad and shameful chapter of our nation's history. Following this momentous apology, the government also announced its intent to repeal these sections of the Indian Act that allowed for the establishment of Indian residential schools and the removal of children from their homes and communities.

I believe, by removing this antiquated language and references to residential schools, we could take another step further down the path toward healing.

The bill would contribute to the larger effort underway to create these tools and mechanisms.

The government is proud to support this private member's bill. I urge my hon. colleagues from the other side to reconsider their position, to speak to first nations people within their own communities, as I have, as my colleagues have who have heard the devastating stories and the hope they find in this bill.

The government looks forward to studying this bill in committee, hearing from witnesses and always exploring opportunities to improve the bill, as may be required.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Mr. Speaker, my speech in this House is consistent with my previously expressed positions on the Conservatives’ thinly veiled attempts to offload the Canadian government's responsibility toward the First Nations communities. When I use the term responsibility, I am referring to its social responsibility, but there is also an economic responsibility, one that is easily quantifiable.

Last year, I met the Toronto Six Nations. At the time I was meeting with them, they were demanding that the Canadian government pay a claim amounting to several billion dollars. In some ways, it is quantifiable.

My focus will be on creep in the spirit of the legislation rather than the actual letter of the amendments and modifications to the Indian Act being considered here.

My experience in this House, over the past year and a half, and the countless sessions of the aboriginal affairs committee, make it possible for me to say today that, all too often, the Conservatives' legislative initiatives and actions are meant to shift the burden and enable them to shirk their obligations toward the first nations peoples and communities throughout the country, to distance themselves from the fiduciary burden that the Canadian government has to the first nations.

I would not be able to comment on whether past governments have shown the same tendency, but this is a tendency that I have observed to date. They are trying to distance themselves and take a step back from the first nations.

Now I have some very bad news for them: these matters are entrenched in the Constitution and they are not going to be able to distance themselves and dissociate themselves from their obligations merely by passing a private member’s bill.

There is no doubt that the numerous international reports exposing the disparities in the government's treatment of aboriginal peoples in Canada contribute greatly to the malaise underlying the drafting of such unilateral legislative initiatives.

That international exposure is part of the reason we know that the government is stepping back and trying to distance itself.

Over the past year, I have met two United Nations representatives who were especially interested in the status of the first nations people and communities here in Canada because, even though the Conservatives keep hammering away about the economic boom and Canada's enviable economic situation, benefits have not trickled down to first nations communities, which are getting poorer as the rest of Canada gets richer. We know that, more often than not, resource development initiatives target these communities’ traditional territories. Communities here in the north are typically remote. The Canadian government has now been unmasked on the international stage. On two occasions, two UN rapporteurs have come to Canada in order to shed light on the living conditions in first nations communities and to find out why these communities live in third-world conditions even though Canada is experiencing an economic boom and we are cited as an example of economic development and progress.

This is probably the reason why the Canadian government is doing its best to create this gap between the communities and to distance itself from its obligations, but its efforts will be in vain.

It should be noted that the proposed innovation is overdue, particularly in sensitive areas, such as trade relations. When I refer to sensitive areas, I mean, for example, indianness. Such areas are also entrenched in the Constitution.

Now, I have noticed another trend here in the House of Commons. The Conservatives frequently try to use private members' bills in order to test the waters with the Canadian public, and to introduce policies that enjoy scant support among Canadians. These bills are intended, therefore, to take the pulse of Canadian public opinion. In my opinion, the objective of the bill before us today is, first and foremost, to assess and gauge how the communities will respond to this legislation. The Conservatives are checking to see whether the members of the first nations communities across Canada are going to look favourably upon this legislation, or be unsympathetic to the idea.

It is highly likely that the Conservatives are trying to see whether the first nations will be able to come up with legal arguments to oppose the proposed measures. The Conservatives are trying to test the waters and determine whether there will, in fact, be a court challenge.

As a lawyer, I can safely say that the matters relating to first nations funds that the bill addresses will be the subject of a court challenge and that there is a very strong likelihood that any such court challenge would be won by the communities since this is an attempt to substantially alter the fiduciary relationship between the communities and the Crown. I repeat that it is entrenched in the Constitution and, consequently, it is impossible to remove one brick, or the whole thing will come tumbling down.

It should be noted that the unilateral manner in which the proposed measures were introduced violates the spirit of the state's commitment to the self-determination of the first nations. I am of course referring to commitments made internationally to recognize the self-determination of the first nations. I am also referring to undertakings given and promises made.

Last January, a supposedly historic meeting took place here in Ottawa. The meeting was intended to be inclusive, but I was escorted to the exit. I was not able to attend because I was an outcast. I ended up on the sidewalk with other aboriginals who were also treated as outcasts. So, inclusive was perhaps not the best way to describe the meeting.

At the meeting, billed as historic, the focus was on the need to work closely, as a team, and show a real willingness to co-operate with the communities. It was all for show, if I may say so. It was a big media extravaganza. There is evidence of this today: there was no real desire to have the first nations contribute.

As my colleague stated earlier, what happened is none too clear since it is uncertain how many communities were actually consulted before the private member's bill was drafted. The bill smacks of other private members' bills that have been introduced in the past. Bills are being systematically foisted upon us.

Paternalistic is an adjective that comes to mind. There are copycats on the other side of the House. My colleagues opposite are being rather paternalistic to these communities by unilaterally foisting legislation on them. There is a problem here, and my colleague opposite mentioned it earlier. There has been little transparency regarding the authenticity of any efforts to consult the communities to determine whether the legislation was relevant to them and whether the communities wanted it.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Mr. Speaker, I thank the member for Desnethé—Missinippi—Churchill River for the opportunity to have a discussion and participate in this debate today. I also congratulate him for not only having the vision but the courage to put the bill forward.

I have had the opportunity to move a private member's bill through this hallowed place and it is not something that is easy to do, especially when one is not talking about national tree day or something that everyone agrees with, but talking about something that is somewhat contentious. It actually takes courage and strength of character to be able to even put the motion forward.

At the end of the day, I sit back and wonder what gives the member this strength. We need to look at his history and the fact that he is a member of Parliament who grew up on a first nation reserve, who raised his children in a first nations community, who has lived under this act and who understands what it does to individuals.

I have first nations communities in my riding. I have taken the opportunity not only to talk to some of the leadership of those communities, but to average people on the ball diamond, people who are affected by this act day-in and day-out and do not get some of the benefits that the leadership gets when they deal with the act. I must say that this is troubling. There is no one on either side of the House that has not called the Indian Act a paternalistic piece of legislation that is a failed opportunity for us to move forward. I do not think anyone disagrees that this is a failed piece of legislation. I do not think Canadians as a whole disagree with that.

We as Canadians are sitting on the precipice waiting for direction from the leaders who are voted into this place and who should help guide us in that direction. I believe there is a role for private members in this place. I believe that the private members who have lived their life under a piece of legislation, which we all agree has failed, should have the ability to stand in this place and say that we need to go forward in a different direction, that we should have these discussions in the House of Commons, in the Canadian Parliament, and that no one on any side of this House should be attacking people for simply putting forward the discussion.

I would direct members to the summary of the legislation that we are talking about. It reads:

This enactment amends the Indian Act to require band councils to publish their by-laws and repeals certain outdated provisions of the Act.

It also requires the Minister of Indian and Northern Affairs to report annually to the House of Commons committee responsible for Aboriginal affairs on the work undertaken by his or her department in collaboration with First Nations organizations and other interested parties....

That is each and every year. If that is not starting a dialogue, I do not know what is. That is what this legislation is about. We all agree that this is a paternalistic piece of legislation that has been a failure and that is rooted in 200-year-old language.

What the member for Desnethé—Missinippi—Churchill River is saying is that we need to start having the conversation about how we will take this to the next level. I would remind members of the history of our government. We did not come into this place six and a half years ago with a national strategy to deal with it. We came with a plan, a plan that included amending the Canadian Human Rights Act to ensure first nation communities would be represented under the Canadian Human Rights Act.

I sat on the aboriginal affairs committee when that came forward and listened to the NDP members fight for two years for the ability to bring first nations communities under the Human Rights Act. They would much rather run to the United Nations and look for condemnation of Canadians as a whole than sit down, roll up their sleeves and work with this side of the House to make positive changes. Who here does not think, including every person in Canada, having first nations communities under the Human Rights Act is not a positive change?

The family homes on reserves and matrimonial property act sounds like a positive to me. What about the first nations financial transparency act? I am not sure what the opposition members have against transparency, but when I talk members of first nations communities, as I will be doing tomorrow in my riding, they demand transparency of their leadership just as they demand transparency of the Prime Minister, his cabinet and every member of Parliament.

We have the safe drinking water for first nations act. Those are just examples of things that our government did. We did not come in with a national strategy. We came in with a plan to actually make a difference in people's lives on reserve. I think that is much more important than taking another five years to develop another strategy that no one ever actually looks at implementing.

I sit here and wonder why they would not be in favour of things for first nations communities. Why would they not be in favour of bringing human rights to these communities?

[An hon. member]

Politics.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

The member is right, it has to be politics. They like the system because they benefit from it. They would rather stick first nations communities in neutral and never see actual action taken. They would rather have another white paper to discuss racist comments from 30 years ago than actually look forward into the future, as my hon. colleague from Desnethé—Missinippi—Churchill River would have us do, and start having the discussion and debate. That is how we make changes in this great country. It is through rigorous debate. It is okay to bring positions forward and have first nations communities bring their positions forward and have this reported back to Parliament every year. I could not think of a more democratic, collaborative approach than what the member is actually proposing and I congratulate him for that.

I will make one other comment, a plea actually. I would like the members of the New Democratic Party of Canada to stand up for once and throw off the shackles of their whip. On this side of the House, we have proven that we have the courage to stand up for our constituents and vote their conscience. I would ask the New Democrats to do the same. We are talking about having a conversation with first nations communities and Canadians with political parties reporting it back to Parliament. The New Democrats will still get a chance to have their input but I urge them to vote their conscience for a change.

[The Acting Speaker, Conservative, Barry Devolin]

The time provided for the consideration of private members' business has now expired and the order is dropped to the bottom of the order of precedence on the order paper. The hon. member for Westlock—St. Paul will have three minutes when this matter returns before the House.

The House resumed from October 18 consideration of the motion that Bill C-428, An Act to amend the Indian Act (publication of by-laws) and to provide for its replacement, be read the second time and referred to a committee.

[Francine Raynault, NDP, Joliette, QC]

Mr. Speaker, I am very pleased to have the privilege of talking about an issue as important as the one addressed in Bill C-428. I believe that this bill is important because it tackles the horrible Indian Act of 1876. There can be no doubt that this bill is one of Canada's most archaic colonial legacies. That is why I commend the member for Desnethé—Missinippi—Churchill River on his initiative. However, it is not enough. It is too little, too late. The Conservative government should consider a much farther-reaching rewrite of the Indian Act and a much more open process.

As a New Democrat, I believe that a complete overhaul of this cursed bill should be led by aboriginals. If the changes are imposed unilaterally, then what, really, has changed? That is why Bill C-428 seems inappropriate.

I will explain why this bill is not likely to go down in history. I do not claim to have a plan to make up for 136 years of colonialism, but I can say that ideally, new legislation should be drafted in collaboration with aboriginals, be introduced by the government and honour the goals of the UN Declaration on the Rights of Indigenous Peoples. Because Bill C-428 does not satisfy any of these conditions, I cannot support it.

I want to begin by pointing out that the goal of the 1876 act was the assimilation of all aboriginals and their forced integration into what was then a fledgling Canadian society. When I visit Manawan, people there are still speaking Atikamekw in 2012. In that respect, the act failed. It also includes many provisions that make life difficult for aboriginals. The government will have to do better than a private member's bill to fix it.

In 1969, the Liberal Party tried to get rid of the act in order to integrate aboriginals into Canadian society. That was supposed to happen without compensation, without special status, and with no respect for treaties signed in the past. As one, aboriginals rejected the idea, but that does not mean they wanted to keep the Indian Act. Quite the contrary.

In their red paper, aboriginals stated that it was neither possible nor desirable to abolish the Indian Act. They said that a review of the act was critical, but that it should not happen until treaty issues were resolved. Some 45 years later, that issue is still outstanding.

Other attempts were explored in this House. In 1987, a list was made of discriminatory provisions in the Indian Act, and this led to a bill. Later, in 2003, the Liberals introduced Bill C-7, which, once again, was heavily criticized by first nations. The Conservatives are now bringing forward Bill C-428, a private member's bill, which seems just as irrelevant as other attempts.

In the words of Einstein, “Insanity: doing the same thing over and over again and expecting different results.” In my opinion, this quote points to what is clearly lacking in Bill C-428: a different approach. Perhaps this flaw is the reason why there is very little support for the bill outside the Conservative caucus. The chief of the Assembly of First Nations, Shawn Atleo, said that this bill is along the same lines as the policy espoused in the 1969 white paper.

Had the Conservatives listened to Mr. Atleo, they would have understood that what to do with aboriginals is no longer the question. In the 21st century, the question is: what do aboriginals want to do with us?

Bill C-428, which the Assembly of First Nations has said came out of nowhere, does not reflect the current reality. During the Crown–First Nations Gathering, the Conservative Prime Minister spoke at length about how his government would work with the first nations.

Aboriginal peoples were not consulted about Bill C-428, or about Bill C-27 or Bill S-8. When the government promises something—and especially something so important—it must follow through. It is shameful to see that this government is not keeping its own promises.

Speaking of broken promises, the government committed to removing the residential school provisions from the Indian Act. We can see that the government preferred to hide the clause in a private member's bill. The NDP thinks that something so important should come from the government, and with apologies, no less. The government must take responsibility and come up with a real, serious solution to replace the Indian Act.

Bill C-428 contains some clauses that seem to be chosen at random, when they are not downright negative. For example, the elimination of the provisions dealing with wills and estates could put aboriginal people in a very frustrating legal void. Does the bill's sponsor understand its implications?

Finally, we must recognize that the living conditions of aboriginal people are getting worse all the time. While the first nations communities are experiencing an ongoing demographic boom, their social services budgets are increasing by only 2% a year, thanks to the Liberals. The fact that the social services budgets for other Canadians are increasing by 6% a year does not seem to bother the government at all.

Malnutrition and education problems are hitting first nations communities hard. I am afraid that the Prime Minister will have to do more than give a medal to Justin Bieber to make young aboriginals forget about this sad reality. When the government decides to really tackle the problems resulting from the Indian Act, I will be there.

Furthermore, I expect that the proposed measure will be very much in line with the United Nations Declaration on the Rights of Indigenous Peoples. This declaration, which Canada ignorantly refused to support, recognizes the specific needs of aboriginal people. It recognizes their right to be consulted about the use of resources on their land. Do we not owe at least that to those who played key roles in our history and the development of our economy?

If the government does not change its attitude toward the first nations, they will understand that the NDP is the only party that can offer them a truly open consultation process. We want to help them to govern themselves. Other Canadians need to know that the excellent social services they receive must also be provided to aboriginal people, in a spirit of sharing and recognition.

The Indian Act needs to be revised, but not without real consultation, clear objectives and a detailed plan of steps to follow. Unfortunately, Bill C-428 does not meet any of these criteria.

[Greg Rickford, Conservative, Parliamentary Secretary to the Minister of Aboriginal Affairs and Northern Development]

Mr. Speaker, I am pleased to stand today to speak to the private member's bill from the member for Desnethé—Missinippi—Churchill River. I count him not just as a colleague but as one of my personal friends. I could not be more pleased for the hard work he does, not just on the standing committee but as a first nations person in this place, starting a process that is long overdue and is a great opportunity for us as parliamentarians to debate.

Tonight I will address a couple of elements in the private member's bill. First is the issue of first nation bylaw publication; second, outdated sections in the act; and finally, the repeal of the residential school references in the act.

Currently, first nation band councils do not have the same opportunities that municipalities and rural municipalities have to independently develop bylaws. There is also no requirement for first nations to make their bylaws publicly available to their members. As a result, for years confusion has reigned as first nation residents and law enforcement officials have often found themselves in the dark as to the specific nature of the bylaws of each individual first nation.

In addition, first nation band councils have had to go to the Minister of Aboriginal Affairs to request approval for each and every bylaw. This cumbersome process has caused many bands to wait for extended lengths of time for approval or even to have their bylaws declined. Others have chosen to completely bypass the minister and as a result do not openly inform their membership of the changes to band bylaws.

Bill C-428 would create a more transparent and accountable process for first nation band members wherein first nation councils would be required to publish their bylaws on their website or via some easily accessible communication channel, such as a band newsletter or widely read local newspapers, television, et cetera. The bill would also eliminate the need to request approval from the minister. The requirement to make each first nation bylaw publicly accessible would provide clarity for first nation residents, visitors and law enforcement officials seeking to understand their role in either abiding by or enforcing these rules. It would also place the responsibility for these bylaw-making powers squarely back in the hands of the first nation, where it belongs, and provide grassroots members of the bands with greater accountability from their band councils.

This change would benefit not only law enforcement officers who would more fully understand the expectations of the chief and council of each first nation for a given bylaw, but also those members of the council and band members eager to see the bylaws that they have enacted enforced in an efficient, effective and timely manner. Importantly, this change would also streamline the decision-making process by eliminating the unnecessary step of having to submit any and every new bylaw to the Minister of Aboriginal Affairs and Northern Development for approval. Currently, following the submission of new bylaws to the minister, there follows a 40-day period during which the law may be disallowed by the minister.

Bill C-428 would also repeal sections of the Indian Act that, while they remain in the law, are no longer enforced. This is equivalent to what we would call “legal underbrush”, which confuses the real issues facing the Crown and the first nations. We must clear this underbrush away, so that we can see the parts of the Indian Act that are substantively affecting the daily life of first nations. One of these is the removal of restrictions on the sale of produce from reserves. There are several other similar examples of sections of the Indian Act that are no longer enforced and that simply have no place in modern legislation.

Though there have been numerous amendments to the Indian Act over the years, the substance of the statute remains very much in the 19th century and that fact is reflected in the language of the document. The bill would seek to do bring the language and content of the statute into the modern era. Incremental changes such as these would pave the way for future legislation to be developed in collaboration with first nation members that would benefit all Canadians.

Some of the detractors of Bill C-428 have chosen to ridicule this set of changes. That is misguided. As a lawyer, I feel very strongly that it is important to take those steps to remove from the law things that are no longer relevant, or in the case of residential schools, institutions we no longer support. It is a dark chapter in Canada's history and we must move on from that.

By taking concrete steps to amend the language and remove outdated and irrelevant sections of the Indian Act, this bill addresses some of the challenges facing first nations communities in regard to their political, social and economic development.

Bill C-428 would also remove the provisions allowing for the establishment of residential schools.

On June 11, 2008, the Prime Minister of Canada made an impassioned and heartfelt apology to the first nations people of Canada for the treatment of children in residential schools, a sad and shameful chapter in our nation's history. The Prime Minister deservedly received praise, not only for the sentiment of the statement but also for the eloquence with which it was expressed and the sincerity of his remarks. Following this momentous apology, the government also announced its intent to repeal those sections of the Indian Act that allowed for the establishment of Indian residential schools and the removal of children from their homes and communities.

Bill C-428 would do exactly that. It would remove from the Indian Act, once and for all, any mention of residential schools as well as the outdated language dealing with the religion of first nations residents in relation to their schooling. This would ensure that no future government could open a residential school for first nations.

The pain arising from the legacy of residential schools continues to affect constituents in the great Kenora riding and across the country. By removing this antiquated language and all references to residential schools, we can take another collective step on the path toward healing as a nation.

While the horrors of the residential school situation cannot be erased or forgotten, removing the segments of the Indian Act, which still to this day refer to residential schools, can provide a path to better understanding and can reassure our first nations' communities of our commitment to never see this happen again.

The Indian Act has had the effect of robbing children of their goals and ambitions. By nourishing and encouraging the dreams of first nations youth, we help not only these children but our entire community. For generations the Indian Act has allowed the potential of first nations youth to wither. We cannot afford to allow this waste to continue.

The colonial and discriminatory nature of the Indian Act has led to decades of discrimination and cultural division. The residential schools were a vehicle for the social, cultural and spiritual destruction that was embedded in the act. Removing offensive and irrelevant sections from the Indian Act is symbolic and will help residential school survivors on their personal path to healing.

Bill C-428 has as its primary goal the empowerment of first nations people and their governments. I am proud to stand here today in support of the work my colleague from Desnethé—Missinippi—Churchill River is doing in this regard. I thank the residents of the great Kenora riding, particularly our first nations communities, more than 42 in our jurisdiction.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, I am pleased to rise in the House to speak to this bill. It is very clear that the member for Desnethé—Missinippi—Churchill River has the best of intentions. With great regret, I have to join those who are opposed to this bill. For the most part, it is not because of the substantive changes the member has brought forward, which a number of members in his party have spoken for. The main problem with this bill is that it is breaking the constitutional obligation for advanced consultation, consideration and accommodation.

I would go to the preamble of the member's bill. My concern with the preamble is the reference to the commitment of the Government of Canada to exploring creative options for the development of new legislation “in collaboration with the First Nations organizations that have demonstrated an interest in this work”. Right off the bat, the member is narrowing the constitutional obligation to consult with all first nations. Perhaps this was unintentional. The member might want to reconsider that, because I think he has the best of intentions for his fellow first nations. It fails to reference first nations governments, and that will derogate from the overriding constitutional obligation.

The bill proposes, as a number of members and the member who tabled the bill have pointed out, a number of measures to rescind or amend provisions in the Indian Act. For example, there are specific provisions to do with residential schools, wills and estates, the duty to attend school, the process for enacting band bylaws and the sale of produce. Few would oppose the right of Canadian first nations to make these kinds of decisions for their own peoples. The problem is not the intention of passing over those powers. The problem is the way in which the member has gone about it.

Another measure I find problematic, which would be a good provision if the rest of the bill could stand and if it had been consulted on in advance, is that the bill would require the Minister of Aboriginal Affairs and Northern Development to report annually to the aboriginal affairs committee on actions taken to replace the Indian Act. What would have been preferable in such a bill, and I would think first nations would agree, is that the report should be to Parliament, which is normally what happens with a matter of interest to this place. Of course, there should be the duty of prior consultation.

The member suggested when he tabled the bill that clause 2 of the bill, on the minister reporting to the committee, also requires a collaborative consultation between first nations and the Minister of Aboriginal Affairs and Northern Development on the Indian Act. Regrettably, there is no such provision in the bill. It would have been a useful one and would certainly be supported by first nations.

The biggest problem with this bill is the duty to consult. As I mentioned, and as should be known to members in this place, there is an overriding constitutional duty to consult. That duty was upheld in the famous Mikisew Cree case, which originated in my province, with the Mikisew Cree First Nation. It has been repeated in numerous cases since. That duty is on the Government of Canada to advance consultation, consideration and accommodation of first nation peoples' interests before any decision is made by the Government of Canada.

That duty is reiterated in the United Nations Declaration on the Rights of Indigenous Peoples in both articles 18 and 19. Article 18 states:

Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.

Article 19 states:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

At the Crown-first nation gathering, as a number of members have pointed out, including the member who tabled the bill, the Prime Minister made certain commitments regarding the Indian Act. He stated:

To be sure, our government has no grand scheme to repeal or unilaterally rewrite the Indian Act.

Thus he undertook to work in collaboration with first nations should any changes be made to the Indian Act.

The member for Desnethé—Missinippi—Churchill River has advised the House that he had consulted first nations in the development of the bill and had found support. I conferred with a number of first nations, particularly in the Prairies, to determine their views so that I could share them in the House and confirm if they had been expressed to the member. This is what I have been able to determine. In the first nations that I was able to reach in Alberta, I was advised that several presentations were made by the member to the Alberta first nations after the tabling of the bill. That is not a case of advance consultation. Moreover, both of the sessions that were brought to my attention were ticketed events at a cost of $575, including for students. The notice for the meetings clearly said that space was limited and that it was not a consultation.

Alberta Treaty 8 Chief, Rose Laboucan, the regional chief responsible for legislation, advised me today that neither she nor her first nation had been consulted in the drafting of the bill.

I also contacted Saskatchewan first nations. I was provided with the following information. The Assembly of Chiefs of Saskatchewan and the Federation of Chiefs of Indian Nations were so upset by the presentation made by the member that they issued a series of press releases, which I can share. They said:

First Nation leaders attending the Federation of Saskatchewan Indian Nations Legislative Assembly were outraged and insulted by Member of Parliament [for Desnethe-Missinippi-Churchill's] presentation on his proposed private members Bill C-428.

In particular, Vice Chief Morley Watson stated:

Mr. Clarke requested due to his ongoing work on this Bill that he wouldn't allow questions from the floor at our Legislative Assembly on his Bill C-428. Chiefs were not consulted nor do we view his attendance yesterday as a form of consultation on what Mr. Clarke is trying to undertake with his proposed amendments to the Indian Act. This is furthering the White Paper Policy of 1969.

The vice chief then stated:

If you read the bill as presented there is grave concerns. It is designed to bring into reality the steps to get rid of the Indian Act. [The member] is putting in place the steps needed to accomplish this task. There are many—