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This enactment amends the Indian Act to require band councils to publish their by-laws and repeals certain outdated provisions of the Act.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

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

moved 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.

Mr. Speaker, it is with great pleasure today that I open the debate on my private member's bill, Bill C-428, Indian Act Amendment and Replacement Act. I am proud to be first nations and as a former member of the RCMP for over 18 years, just as proud to have achieved the rank of sergeant. During that time I was in charge of two detachments. All of my service involved policing on and off first nation reserves.

In 2008, I was elected to represent Desnethé—Missinippi—Churchill River, a constituency containing over 23 first nation communities and the second largest first nation population in Canada.

Having had to enforce the Indian Act across Saskatchewan, I am keenly aware of the challenges posed by the outdated, racist, colonial statute referred to as the Indian Act. The problems created by this archaic piece of legislation are far-reaching, extending to every aspect of the lives of every first nations person and the root cause of the Attawapiskats of our country.

During the Assembly of First Nations election speeches in July of this year, all the candidates stated that the Indian Act must go. Clearly, everyone agrees that changes must be made to the Indian Act in order to start a process of consultation, in order to start a dialogue and in order to amend the Indian Act. I hope in my lifetime to see the complete repeal of the Indian Act and see it replaced by a more modern set of laws that reflect today's values, but also respect the past.

I hope one day the amendments proposed in my private member's bill will help lead us to build a more modern, respectful relationship between federal government and first nations, and finally kick-start this larger process to repeal and replace the entire Indian Act. These amendments to the Indian Act can be an important stepping stone on the path of achieving self-sufficiency and prosperity in first nation communities. The acronym for this path would be ARRC: amend, repeal, replace, and most importantly, consult.

The bill would amend the bylaw section of the act; repeal and replace several outdated, unused and patronizing sections of the act; and create a process that would enable collaborative consultation with first nations. The goal is to replace the Indian Act with laws which would both describe and enshrine a more respectful and modern relationship between first nations and the Crown.

I would like to expand on the content of Bill C-428. The bill would enable first nations and band councils to publish their own bylaws without having to seek the permission of the Aboriginal Affairs or the signature of the minister. Empowering first nation communities to take control of their lives and the environment in which they live is a crucial step toward autonomy and self-reliance.

Under this amendment, a band would also be required to publish bylaws created by their council on one of a variety of forms of media, such as the band website, the First Nations Gazette, or in local newspapers or newsletters that have general circulation in their first nation communities and to their band membership.

By making plain the bylaws of each first nation, we create greater transparency and accountability for first nation residents and for those enforcing the bylaws. This will take the minister out of the equation and put the responsibility for the bylaws squarely where it belongs: with the band council and band members. It will provide first nations with the same rights and responsibilities that rural and urban municipalities have today.

I would like to stop here for a moment and talk about the everyday challenges that are faced by first nation governments. We are all aware of the crisis of alcohol, drug and solvent abuse that has led to the high rate of suicide in many of these first nation communities. It is with this in mind that I want to see first nations able to act on these problems expediently and to create legislation that would reflect their culture and communal standards without having to seek the permission of the minister to act.

The bill would replace section 85.1, which prohibits the sale of alcohol on first nations land and will place that option back into the hands of the band council. In fact, the decision to allow the sale of alcohol on reserve has been in the hands of some bands for some time, but the Indian Act is not up-to-date with the current policy.

First nations people also do not have the same rights as other Canadians in regard to wills and estates. The Indian Act gives extraordinary powers to the Minister of Aboriginal Affairs and Northern Development, including the ability to appoint executors of wills for first nations people and to appoint administrators.

What most Canadians and first nations do not know is that the minister also holds the ability to declare the will of a first nations person not valid. No will pertaining to a first nations resident is valid unless approved by the minister as dictated by the Indian Act. I call this a paternalistic approach. This does not belong in a free and democratic society. My bill would repeal the sections of the Indian Act that grant the minister these exceptional powers in the administration of the wills of all first nations residents.

Bill C-428 would also remove impediments to trade in the form of the repeal of section 92, which restricts certain members of society from engaging in trade with first nations individuals.

It is important to note that the bill would at last remove the archaic educational element of the Indian Act, which led to the formation of residential schools, and remove the term “residential school” from the act.

I am proud of the accomplishments of this government in regard to recognizing the tragedy of and apologizing for residential schools. I am proud as a first nations man, whose grandparents attended residential schools in Duck Lake, Saskatchewan, to be privileged to be a member of the House of Commons and to repeal this particularly shameful section and wording of the Indian Act. I fear that having this remain in the Indian Act will enable future governments to create residential schools on first nations reserves.

I am proud that our Prime Minister has apologized for the travesty of the residential schools, for the pain and destruction they brought to all first nations and for the shame they have brought to Canada.

I sat only two seats from the Prime Minister as he delivered this apology and personally witnessed the emotion with which he delivered the speech. The Prime Minister deservedly received praise not only for the sentiment of the statement but also for the eloquence and sincerity with which he expressed his remarks.

However, for me the most important part of the bill is the mandate that would be given to the Minister of Aboriginal Affairs to report annually on the progress being made toward the repeal and replacement of the Indian Act. This report would be specifically on the collaborative work being done by first nations and the Crown to get out of the Indian Act. This section of my bill requires a collaborative consultation process between first nations and the Minister of Aboriginal Affairs specifically on the Indian Act. A report must be published to the House of Commons committee on aboriginal affairs by January 31 of each year. This will ensure that first nations can hold the government accountable for moving forward toward the complete removal of the Indian Act in a meaningful and respectful way.

It should be clear to all that the substance of the bill provides no cause for alarm among first nations people. Nor is there any cause for false alarms to be raised by first nation leaders.

I have arrived at the current set of changes through consultation with other first nation members within my constituency as well as around the country. I have had four drafts in the past and I am open to the amendments that may come forward through this important dialogue.

There is no larger agenda at play. The repeal of sections of the Indian Act represent a step toward a modernized relationship between our government and the first nations of Canada, nothing more. It is plain for all to see that there is no suggestion that the Indian Act be repealed in its entirety with nothing left in its stead. Rather, my bill simply seeks to remove outdated concepts and language from the existing act.

I hope that individuals will be inspired to reflect upon and review the Indian Act and my private member's bill in this light. It is my hope that this debate will start a larger process to look at outdated language in the act.

When I started this journey four and a half years ago, I hoped this bill would open a discussion and meaningful dialogue and debate. I hoped that with the passage of this bill we could look forward to a better relationship and a true partnership between first nations and all Canadians, and I mean all Canadians.

Today as I stand here, I feel strong emotions about what I am doing. This is not a partisan effort. I am doing this as a proud Canadian who has served my country and also as a first nations man who wants to see a better life for first nations and all Canadians.

I am hoping that the opposition will support this bill because it is not a partisan issue. I encourage all members of the House to support my bill to modernize this outdated and colonial paternalistic legislation called the Indian Act.

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

Mr. Speaker, I thank the member for outlining his intention behind the bill. My question for him has to do with consultation. Vice Chief Watson from the Federation of Saskatchewan Indian Nations states that his organization “has a consultation policy and the federal government needs to recognize our Inherent, Sovereign and Treaty Rights”.

Since this could have a wide impact, and under the United Nations Declaration on the Rights of Indigenous Peoples it is well recognized that there needs to be free, prior and informed consent, would the member tell the House exactly which nations he consulted with and what their approach was to this particular piece of legislation?

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

Mr. Speaker, I have 23 first nations in my constituency. One of them is Pelican Lake First Nation. That is a start.

First of all, I am a first nations person. There are 633 first nations across Canada and in the process all 633, on four separate occasions, have received communications from me, asking for their input and their recommendations to amend my act if they saw anything that they would like to improve.

I stand here in bewilderment of the parliamentary process, of my being a first nations person and not being given the opportunity to bring a bill forward as a first nations person in the House of Commons, as every other member in the House has that right.

First nation leaders also have a responsibility to consult with their membership and make decisions. On many occasions, as a first nations leader, I am not consulted.

To reply, many first nations chiefs are afraid to come forward right now in fear of reprisal. They also have to face elections in the near future. It is a peer-pressure system that the Indian Act has created.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, we all, as individual members, have the right to bring forward legislative ideas. We within the Liberal Party are disappointed in the fact that the current Prime Minister has not recognized how critically important it is to work with aboriginal and first nations leadership, in particular, from coast to coast to coast. When dealing with the many different issues, it is important to sit across the table in a comprehensive way, much like what Paul Martin did and ultimately came up with the Kelowna accord, which was something that would have had a very positive impact on our first nations.

[Some hon. members]

Oh, oh!

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

I can see the Conservatives are a little sensitive, given that it was their government that ultimately burnt that particular accord.

Does the member not see that the Prime Minister of Canada needs to start talking with the stakeholders, in particular our first nations? He must sit at the table and treat the first nations as strong partners and try to come up with ways to resolve the many outstanding issues that exist.

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

Mr. Speaker, I recall the Prime Minister standing up at the first nations gathering in the January of this year. However, we also heard first nations come forward and ask government to remove the barriers or handcuffs of the Indian Act.

What I have heard in years past from the Liberal Party are all of these false promises. We have heard the Kelowna accord. We heard Robert Nault stand up to introduce a government bill to get rid of the Indian Act. We have heard about the white paper.

The Liberal members are over there squawking and a little upset because they did not get it done over 13 years. They had 13 years during which they introduced the Kelowna accord and the implementation act, but they did not get it done. They had the opportunity.

In talking to my colleague here on the consultation process, our government is working hard in consultation towards a new modern relationship to address the needs and crisis that is facing first nations today.

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

Mr. Speaker, I am rising today to address Bill C-428, an act to amend the Indian Act (publication of by-laws) and to provide for its replacement.

I want to begin by saying that New Democrats will be opposing the bill for a number of very good reasons.

The bill seeks to amend the Indian Act by deleting sections dealing with wills and estates, sale of produce, trade with certain people and the sections on residential schools. It also calls on the government to make an annual report to Parliament on its progress in dismantling the Indian Act.

New Democrats do not support the bill because the member did not consult with first nations before presenting the bill.

Although the bill would delete some archaic provisions, like the sale of produce, other deleted sections, like the provisions for wills and estates, could put first nation citizens living on reserve in legal limbo because there is no guarantee that provincial legislation would cover their situations.

Tribal councils may have to provide advice regarding the proposed new provisions on wills and estates, which would be increasingly difficult due to the funding cuts to tribal councils and aboriginal representative organizations announced on September 4, 2012 by the Minister of Aboriginal Affairs and Northern Development.

Also, the deletion of the provisions on residential schools was supposed to be government legislation, not hidden in a private member's bill. New Democrats would like to see those provisions dealt with by the minister, as promised to first nations at the Truth and Reconciliation Commission's national ceremony.

I heard the member opposite actually not answer my question about consultation. However, there have been a number of court cases that talked about what consultation involves. I can say that consultation does not entail receiving emails from people. It does not entail posting some information on one's website. That does not constitute consultation, nor is consultation constituted by having witnesses appear before a committee.

If the Conservatives are serious about a new relationship with first nations, they would withdraw the bill, go back to the drawing board and talk to first nations from coast to coast to coast with meaningful consultation. They have a duty to consult.

This piece of legislation could have very serious--

[The Acting Speaker, Conservative, Barry Devolin]

The hon. member for Edmonton—Strathcona is rising on a point of order.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, I regret intervening, but I am right beside the hon. member and I cannot hear her because there is so much noise on the other side heckling her.

[The Acting Speaker, Conservative, Barry Devolin]

I agree with the member for Edmonton—Strathcona that there is a lot of noise in the chamber. I would ask all hon. members to give their colleagues the respect they received when they were speaking.

The hon. member for Nanaimo—Cowichan has the floor.

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

Mr. Speaker, I appreciate that. When the member was giving his speech, we allowed him the time and space to deliver it without the heckling and the noise.

I want to point out how serious this is. We have a private member's bill that is attempting to dismantle the Indian Act. I think there is agreement that the Indian Act is an archaic piece of legislation that needs to go, but the question is how it should go. Should it be through a private member's bill? Absolutely not. That does not recognize the nation-to-nation relationship that exists in this country.

There have been two other major attempts that ended in dismal failure, I might point out, and they were government bills, not private members' bills. There have been two major attempts at removing the Indian Act in the past. The first was a white paper authorized by Jean Chrétien in 1969 that sought to assimilate first nations into mainstream Canadian society by scrapping the Indian Act and reserves. We can see from the kinds of legislation that have been tabled in the House in the past that it is no wonder that first nations from coast to coast to coast are nervous about any attempt that does not involve meaningful consultation. People do not know what the end result of this is going to be because they are not involved and not at the table.

Harold Cardinal, another first nations leader, in response to the 1969 white paper, published a red paper titled “Citizens Plus” that outlined in reply:

It is neither possible nor desirable to eliminate the Indian Act. It is essential to review it, but not before the question of treaties is settled. Some sections can be altered, amended, or deleted readily. Other sections need more careful study, because the Indian Act provided for Indian people, the legal framework that is provided in many federal and provincial statutes for other Canadians. Thus the Indian Act is very complicated and cannot simply be burned.

In 2003, the Liberals introduced Bill C-7, the first nations governance act, which was widely panned by first nations who questioned if it was consistent with the rights, needs and priorities of Canadian first nations. Sadly, there was a news release on October 18 that indicates that the government would be supporting Bill C-428. The question then, of course, comes back to the new relationship that was promised at the Crown-first nations gathering back in January and how unilaterally introducing a private member's bill on some serious matters constitutes a new relationship in this country.

If the government were serious about a new relationship, it would go back to reports like that of the Royal Commission on Aboriginal Peoples. A couple of years ago, the Assembly of First Nations issued a report card and, essentially, it almost gave an F across the board for what had been implemented. The royal commission process was a comprehensive one that many people had some faith in, but most of the recommendations have been completely disregarded by various governments since 1996. If it were serious, the government would go back to that, and if it were serious about consultation, it would go back to the UN Declaration on the Rights of Indigenous Peoples and that very important clause about free, prior and informed consent. This bill does nothing to address any of that.

I want to go back to a paper that was published back in 1987 entitled, “Aboriginal People: History of Discriminatory Laws”. This paper states:

It is generally accepted that the often conflicting goals of “civilization,” assimilation, and protection of Indian peoples that have been pursued throughout the history of federal Indian legislation have their origin in (primarily British) colonialism. Throughout the colonial and post-Confederation periods, governments vacillated between two policies. The isolationist policy held that assimilation could be best achieved by isolating Indians on reserves, with Indian agents gradually preparing them for integration with the dominant society. (Alternatively, isolation was viewed by some simply as a protective measure until the Indian people should become extinct). The policy of immediate assimilation, on the other hand, favoured immediate placement of Indians among non-native people and removal of special protective measures and legal status. The isolationist policy has predominated but, as some observers have noted, it has had the unintended result of preserving Indian cultures and providing a means for the Indian people to resist assimilative pressures. Accordingly, Indians have fought to retain their reserves, treaty rights and special legal status as a way of maintaining distinct cultural or national identities.

While Indian people view reserve and treaty rights as a quid pro quo for giving up a good part of their traditional lands, federal and provincial governments have frequently taken the view that the Indians’ refusal to abandon their distinctive cultures, government and identities is a refusal to take up the ways of a more “advanced civilization” and accordingly, a refusal to take up the “responsibilities” of full citizenship. In the result, the history of native policy, particularly Indian policy, in Canada is replete with examples of legal bars to the exercise of fundamental civil, political and cultural rights.

That continues to this day and this bill does nothing to address the problems that first nations across this country are facing, whether it is human rights or the ridiculous number of aboriginal women who are in prison.

One-third of women in federal prison are aboriginal. We had the United Nations Convention on the Rights of the Child, which talks about the dismal failure of aboriginal policy to keep children out of prisons. We have the current government still fighting at the Canadian Human Rights Tribunal on child welfare.

If the Conservatives are serious about a new relationship they will withdraw this bill, go back to the drawing board and work with first nations to fully implement a consultative approach to eliminating the Indian Act.

I want to add that there was a man named Leo Baskatawang, who—

[The Acting Speaker, Conservative, Barry Devolin]

Order. The hon. member for Westlock—St. Paul is rising on a point of order.

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

Mr. Speaker, I would just like to direct your attention to the issue of relevance. The hon. member is calling upon the government to withdraw a bill that is a private member's bill and a private member has the right to put his or her own legislation forward.

[The Acting Speaker, Conservative, Barry Devolin]

That is not a point of order. The member is speaking in debate and is certainly speaking about the matter before the House.

The hon. member for Nanaimo—Cowichan has one minute remaining.