Indian Act Amendment and Replacement Act

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

This bill was last introduced in the 41st Parliament, 2nd Session, which ended in August 2015.

This bill was previously introduced in the 41st Parliament, 1st Session.

Sponsor

Rob Clarke  Conservative

Introduced as a private member’s bill.

Status

This bill has received Royal Assent and is now law.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Indian Act to require band councils to publish their by-laws and repeals certain outdated provisions of the Act.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

Elsewhere

All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.

Votes

Nov. 20, 2013 Passed That the Bill be now read a third time and do pass.
Nov. 20, 2013 Passed That Bill C-428, An Act to amend the Indian Act (publication of by-laws) and to provide for its replacement, {as amended}, be concurred in at report stage [with a further amendment/with further amendments] .
Nov. 20, 2013 Passed That Bill C-428, in clause 3, be amended by replacing line 14 on page 2 with the following: “25, 28, 37, 38, 42, 44, 46, 48 to 51 and 58 to 60 and the”
Dec. 5, 2012 Passed That the Bill be now read a second time and referred to the Standing Committee on Aboriginal Affairs and Northern Development.

May 7th, 2013 / 11:45 a.m.
See context

NDP

Jean Crowder NDP Nanaimo—Cowichan, BC

Thank you, Madam Chair.

I know that Chief Maracle, in his opening remarks, pointed out that this bill is before the wrong committee, and I would completely support Ms. Bennett's motion.

At the aboriginal affairs committee, we’ve just finished studying a private member’s bill that included a section on wills and estates. It became very clear—and this relates directly to matrimonial real property—that taking into account the very complex land codes within first nation communities, the matter of wills and estates needed further study. With regard to matrimonial real property, it's very clear that we're not dealing with fee simple lands. We're dealing with custom allotment. We're dealing with certificates of possession. We're dealing with a variety of mechanisms around lands that do not simply mean that when there's a marital breakdown, person A stays in the house and person B goes somewhere else.

That is an important factor when we're talking about matrimonial real property.

Madam Chair, when David Langtry, the acting chief commissioner of the Canadian Human Rights Commission, came before this committee, he indicated that there were three questions this committee should be considering. One is fair access to justice, one is ability to access rights in a safe way, and a third one is whether communities have the capacity they need to develop and implement their own matrimonial real property systems. I would argue that all three of those questions need to be dealt with at the aboriginal affairs committee because the aboriginal affairs committee has a much broader perspective on the complexities facing first nation communities.

One matter that came up at the aboriginal affairs committee when we were talking about Bill C-428 was the issue around custom adoptions. Now, I haven't heard anybody talk about custom adoptions. When provinces are going to be dealing with allocating who gets to stay in a home when there is a marital breakdown, how are they going to deal with custom adoptions? Many provinces don't recognize the first nations’ tradition of custom adoptions, so what would happen in such a case?

Chief Montour, Deputy Grand Chief Fiddler, Chief Maracle, Chief Abram—all of you have talked about the lack of resources. At the aboriginal affairs committee, I can tell you we're well steeped in hearing testimony from people about the lack of resources for housing, the lack of resources for education, the lack of resources for water, and the lack of resources for policing.

Deputy Grand Chief Fiddler, I know your communities have been struggling with issues of policing now for a long time, but it has been very prominent in the media over the last number of weeks because of that lack of resources for policing in your own communities.

We hear the government say that what's going to happen is that by passing Bill S-2, miraculously, somehow or other, people in communities are going to be protected. Well, who's going to enforce those protection orders? Where's the community going to get the resources for alternate dispute resolution and mediation? Where's the community going to get the resources for legal aid? Where's the counselling when families need help? Perhaps they could resolve issues with appropriate counselling. Where are those counselling dollars going to come from? How are the chief and council going to deal with the fact that there are such severe housing shortages?

As Deputy Grand Chief Fiddler and Ms. Fletcher pointed out, there could be 13 or 14 people living in a house. What happens if the custodial parent, the woman, is living with the husband whose whole family lives in the house? Now we're going to say, okay, the woman now has the house. Does that mean the grandparents have to move out because they're the parents of the young man?

This act has been touted by the opposition...I mean the government—opposition I could only wish. The government has indicated that this act will deal with violence against aboriginal women. I want to thank Chief Maracle and Chief Montour and others for rightly pointing out that aboriginal men, first nation men, are not violent by nature. When we're talking about marital breakdown, we're talking about the stressors of poverty and a lack of access to resources that complicates families in a way that many Canadians simply don't face.

On the issue of violence, Bill S-2 mentions family violence—not violence against aboriginal women, but family violence—eight times in this act, and it does nothing, absolutely nothing to deal with the factors contributing to family violence.

We saw in the past as the Aboriginal Healing Foundation funds sunsetted, which could deal with the intergenerational traumas that resulted from residential schools, for example, that money has disappeared.

So when you want to talk about what's happening and where this bill should rightly be it should absolutely be before the aboriginal affairs committee. I would support the calls that have come in from certainly the chiefs who are before us today, but many other chiefs and community members as well, about the duty to consult and accommodate.

It isn't just going out and self-selecting a number of communities, it is about that duty to consult, that free, prior, and informed consent that's been outlined in the UN Declaration on the Rights of Indigenous Peoples. So I certainly would encourage all members to vote in favour of Ms. Bennett's motion and have this bill dealt with appropriately at the appropriate committee.

Thank you, Madam Chair.

Aboriginal Affairs and Northern DevelopmentCommittees of the HouseRoutine Proceedings

May 3rd, 2013 / 12:05 p.m.
See context

Conservative

Chris Warkentin Conservative Peace River, AB

Mr. Speaker, I have the honour to present, in both official languages, the sixth report of the Standing Committee on Aboriginal Affairs and Northern Development, entitled Bill C-428, An Act to amend the Indian Act (publication of by-laws) and to provide for its replacement. The committee has studied the bill and has decided to report the bill back to the House with amendments.

May 2nd, 2013 / 10:20 a.m.
See context

Conservative

Rob Clarke Conservative Desnethé—Missinippi—Churchill River, SK

It's that Bill C-428 in clause 4 be amended by replacing line 19 on page 2—

May 2nd, 2013 / 9:55 a.m.
See context

NDP

Jean Crowder NDP Nanaimo—Cowichan, BC

Thank you.

Mr. Chair, I'd like to move a motion that pursuant to Standing Order 97(1), the committee report to the House a recommendation that Bill C-428, An Act to amend the Indian Act (publication of by-laws) and to provide for its replacement, not be further proceeded with. I'm going to give you the following reasons.

Again, I want to recognize Mr. Clarke's work on this, and certainly he has accomplished his objective of having us talk about the Indian Act; however, I think with the number of witnesses who have come forward and expressed grave concerns about various sections of this bill, it requires much more study and consideration of the implications. I am suggesting that we do not proceed with this piece of legislation at this time and that we go back to the drawing board on it.

Thank you, Mr. Chair.

May 2nd, 2013 / 9:20 a.m.
See context

Chief, Westbank First Nation, and Chairman, First Nations Lands Advisory Board

Chief Robert Louie

That's a good question, Mr. Clarke.

We certainly publicize our laws appropriately. We don't use bylaws because we're a lawmaker. Consequently, as a lawmaker, we're not a subsidiary to another process. Our laws are published. Today you can pull up a list of all our laws on the Internet. They are certainly publicized to our members and are made available under due process through first, second, and third readings, a whole process that has the involvement of not only the community but an understanding by those who will be affected that the law is empowered.

The problem that I see with the proposal you seek in this Bill C-428 is that it could become far too cumbersome to take, let's say, a 30-page or a 40-page law—in some cases they're longer—and put it into a newspaper, to say this has to be publicized. We don't believe that would be prudent. There are other ways to do that.

For us, and for all the first nations who have land codes in place, proper publication does take place, and it's something that we see as necessary. So there are means to do that, we believe.

May 2nd, 2013 / 9:15 a.m.
See context

Chief, Westbank First Nation, and Chairman, First Nations Lands Advisory Board

Chief Robert Louie

If we're talking specifically about the special reserves under section 36 of the Indian Act, I know there are complications with that. There are historic issues that relate to how special reserves have been set up. We know there are court decisions, particularly out of British Columbia, that say a special reserve cannot be created without the consent of the crown. We know there are certain advantages of special reserves. I think the concern we have is that if Bill C-428 were to kill that option, there could be some unintended consequences.

I know that Mr. Henderson is certainly very familiar with the Indian Act and the special reserves, and he could perhaps offer some more enlightening comments.

May 2nd, 2013 / 8:45 a.m.
See context

Chief Robert Louie Chief, Westbank First Nation, and Chairman, First Nations Lands Advisory Board

As chairman of our Lands Advisory Board, I thank you, Mr. Chairman and honourable members of the committee, for providing me time to respond to Mr. Clarke's private member's bill, Bill C-428.

In preparation for today, I've had the opportunity to review the comments made by Mr. Rob Clarke on Tuesday, March 19, as well as comments from other groups appearing before you. Those groups include the Native Women's Association of Canada, the First Nations Financial Management Board, the BC of Assembly of First Nations, and the Canadian Bar Association.

I want to particularly commend to you the evidence of Regional Chief Jody Wilson-Raybould, who, in addition to her other duties and services to first nations, sits as director of the Lands Advisory Board. The distinction she draws between the provisions of Bill C-428 that repeal and amend archaic, dated, and even offensive provisions of the Indian Act on the one hand and the post-colonial amendments and additions on the other hand are very telling. You will recall that she has opposed what might be called the “modernizing provisions” of Bill C-428 because they would impose burdens on first nations and because they do not present options. In that, we join her.

As first nations identify their own priorities and governance strategies, they need options to pursue their individual goals and aspirations.

Everyone is not moving on the same issues at the same time, at the same speed, in the same way, or aiming for the same result. The Lands Advisory Board and the first nations who have become signatories to the Framework Agreement on First Nation Land Management have set their own course, and that course takes us outside the Indian Act and affords us the option of truly governing our reserve lands and resources. This has become an attractive option to many first nations, both those who have signed the framework agreement and many more who have signalled their desire to become signatories. Where we see real progress in governance in our case and similar progress on other fronts, we find options, not the heavy hand of Parliament prescribing one fix for all first nations.

Mr. Clarke, I have read your answers to the committee's questions. I certainly understand and appreciate what you are attempting to accomplish on behalf of aboriginal peoples.

I would like to quote a statement made by Mr. Clarke to the committee:

I truly believe there's a consensus to replace the act. The real questions are, how should that happen, and what will replace it?

For years, many first nations leaders as well as the Government of Canada have said the Indian Act must be replaced. Mr. Clarke, you have made an attempt to turn words into action. Along with my colleagues, I commend you for your initiative. However, I sincerely believe that your intent would be more successfully realized if your proposals presented options for first nations rather than having them imposed. I say this based on the success that the Framework Agreement on First Nation Land Management and the ratifying document, the First Nation Land Management Act, has achieved.

Currently, 72 first nations are signatories to the framework agreement; 39 first nations have already enacted their land codes; 30 first nations are in the active development stage, preparing the land codes to be put to a community vote; 68 other first nations are on a waiting list. Canada has already committed to adding 25 new signatories during the next two years. The Lands Advisory Board is very appreciative of this support from Canada. Make no mistake, we could not have achieved the success we have without that support in our process, including significant financial support to first nations.

One of the key factors to the success of this historic first nations-led initiative is the fact that the process to assume jurisdiction and control over reserve lands is optional. All of our first nations have pursued or are pursuing jurisdiction over reserve lands and resources because they choose to pursue it. They think it is right for them and their communities to make the ultimate decision on whether to ratify the framework agreement and enact a land code.

The framework initiative began in the early 1990s with a small group of nine first nations. We were frustrated with the restrictive and outdated land-related provisions of the Indian Act. The decision-maker was the minister, not the community and not the chief and council. This was true whether the issue was the allotment of a certificate of possession, the issue of a permit to access or use reserve lands, or recommending a designation for leasing to the Governor in Council. It was tedious, it was cumbersome, it was time-consuming, and it wasn't working for our communities.

Over a period of years, we developed a well thought out and acceptable approach to removing these obstacles put in our way by the Indian Act. We tirelessly pursued discussions with Canada, with the provinces, with MPs of all political parties, and with first nations organizations such as the Assembly of First Nations. We consulted with numerous first nations across the country. The important point here is consultation: listening to and getting acceptance from our first nations people. Our group now includes approximately one-fifth, or 20%, of all first nations in Canada as either signatories to the framework agreement or those waiting to become signatories.

Mr. Clarke has also stated that “The true intent of the Bill C-428 is to create and aid freedom and independence for first nations.” If that is indeed the intent, then create options, and make sure those options are real options in the sense that there are resources for independent first nations to be able, realistically, to select them.

Many witnesses have cited the example in Bill C-428 of the new process for enactment of bylaws that impose new burdens and responsibilities on first nations in terms of developing laws and publishing them. But it is not funded—not the development of bylaws, not the publication of bylaws, not the enforcement of bylaws, and not the legal defence of them if they are challenged.

There are optional alternatives to what Bill C-428 proposes. These alternatives exist now, are led by first nations, adhere to the requirement for consultation, are supported by Canada in partnership with first nations, and permit first nations to achieve what Mr. Clarke says he wants them to be able to do.

There is, as one alternative available, full self-government, which is what my community, the Westbank First Nation of British Columbia, opted to pursue and which we achieved. There is also in B.C. a second alternative, the treaty process, which is what the Tsawwassen First Nation of British Columbia has followed to a conclusion. I am happy to note that both my community and Tsawwassen had enacted land codes first. Elsewhere, we see framework agreements for education gaining a foothold in some regions. They are not universally popular, but they are optional.

On the economic front, there are several pieces of legislation that address first nations taxing powers, economic development, harmonizations of laws, and first nations borrowing for community purposes. First nations must choose to take up any of those options; they are not imposed. One significant alternative is a first nations land code under the framework agreement that provides for law-making procedures, publication of laws, conflict-of-interest guidelines, the sale of animals and crops, seizure of goods, and levy of fines, with the moneys going to the first nation.

Mr. Clarke has also stated to the committee, and I quote:

...I want to amend the bylaws, to empower first nations to form their own bylaws. ...I'm trying to repeal outdated sections of the Indian Act.

What I'm trying to do is provide a solution for first nations, and I'm asking what their solutions would be.

The framework agreement is a workable and successful option that accomplishes all of what Mr. Clarke is seeking to achieve, and it accomplishes this based on the timing and priorities of the communities themselves and on their own free choice.

Mr. Clarke is a champion of our peoples. If Mr. Clarke would like to champion a cause, may I suggest that he urge Canada to make the framework agreement available to the other four-fifths, or 80%, of first nations who have not yet been given the opportunity to become signatories to the framework agreement.

Mr. Chairman, honourable members, thank you for your kind attention.

I, along with my colleagues, am certainly prepared to answer any questions the committee may have.

May 2nd, 2013 / 8:45 a.m.
See context

Conservative

The Chair Conservative Chris Warkentin

Colleagues, I call this meeting to order. This is the 71st meeting of the Standing Committee on Aboriginal Affairs and Northern Development. Today we continue our review of Bill C-428.

We have representation today from the First Nations Lands Advisory Board. It is a privilege to have five folks here from different regions.

We are privileged to have the chair of the board, a friend of mine and a friend to many in this room, Chief Louie. Thanks so much for being here.

Chief Bear, it's always wonderful to see you. Thank you for joining us as well.

We also have Ms. George-Wilson and Mr. McCue, and we have Mr. Henderson.

Thank you all for being here. We appreciate your willingness to come to Ottawa to join us in this review.

We'll turn it over to you for the first 10 minutes, and then we'll have some questions.

April 30th, 2013 / 9:35 a.m.
See context

Chief, Federation of Saskatchewan Indian Nations

Chief Perry Bellegarde

Totally. I don't see the connection at all and that's why I'm questioning this. That's why my position would be to scrap this Bill C-428 and start fresh with the process that's been outlined. That's where we need to go, looking at new mechanisms with full support from the Prime Minister's Office, looking at new institutions of the crown through the Privy Council Office to implement section 35 in treaties, and respect that nation-to-nation relationship. That's where we need to keep going.

April 30th, 2013 / 9:35 a.m.
See context

Chief, Federation of Saskatchewan Indian Nations

Chief Perry Bellegarde

No. No, I was not consulted on this bill.

Just to make some comments generally, in light of the Prime Minister's commitment last year in December at the crown–first nations gathering, and in light of his commitment on January 11, to me this bill is very premature.

He talks about a process for treaty implementation. He talks about it nation by nation, treaty by treaty, looking at new mechanisms to implement treaties, and looking at new mechanisms of the crown to look at implementation of section 35.

So we're starting to look at a process to do that, and now along comes Bill C-428. If it's passed, where are the linkages? Where's the coming together? You know, when the Prime Minister is saying this publicly, and then a private member's bill is passed.... That's why I say scrap this bill.

In light of this other process, we're hoping that will be meaningful consultation and accommodation, with full inclusion and involvement of the indigenous peoples. That's what we want to push for.

April 30th, 2013 / 9 a.m.
See context

Paul Chartrand Professor of Law (retired), As an Individual

Thank you, Mr. Chairman. I will begin by offering my greetings to the committee. Thank you for inviting me to appear.

Briefly, by way of introduction, I am a retired professor of law, which I taught for a few decades, mostly in Canada and Australia. I've focused on law and policy relating to indigenous peoples.

Because of some of the comments that were made, I should also add that I was one of the commissioners appointed by Prime Minister Mulroney to Canada's Royal Commission on Aboriginal Peoples in 1996, among other appointments.

I'm here today to make my own professional observations about Bill C-428, not as a representative of anyone. My approach is to make some recommendations based on what I view as good law and good policy based on principles of democracy and constitutional values in Canada.

I offer the following.

The preamble of Bill C-428 characterizes the act as an outdated colonial statute. Is amendment the best way to deal with that? The royal commission's final report in 1996 made some alternative suggestions with regard to amending the Indian Act, but no government since then has undertaken those alternative means, which would by and large involve a negotiation of treaties.

Let me say by way of opening comment that some take the view that amendments to the act involve an attempt to make a silk purse out of a sow's ears, as it were. Given the politically contentious nature of any amendments to the Indian Act, one might add to the image by suggesting the knitting of a silk purse is to take place while tiptoeing through a minefield.

The Indian Act is, indeed, an archaic law that has been imposed upon Indians since 1876, for the purpose of having Ottawa bureaucrats and politicians run the affairs of Indians on reserves. It must be done away with, one way or another. But in Canada you cannot change the state of affairs under which people have been administered for many generations in accordance with the idea that motivated the Indian Act in the first place; that is, that those Ottawa people know better than Indians how to run their own affairs at home. The Indian Act also involves treaty rights because of section 88, which deals with the application of provincial laws and its treaty exemptions.

Clause 2 of the bill, of course, requires that a minister report annually to this committee. My first recommendation is a policy that no amendment to the act is to be proposed or introduced in Parliament without first conducting proper consultations with first nations representatives, and that all bills be drafted in consultation with them.

This approach would tend to promote the democratic principle that laws ought not to be passed without the agreement of those who are to bear the burdens or reap the benefits of the legislation. This approach would at least partly remedy the lack of equitable representation and participation of first nations in Canada's Parliament and government.

My second point is this. Amendments increase the complexity of the law applicable to Indians and lands reserved for the Indians. An annotated publication of the act runs well over 400 pages. Amendments are being made all the time, under various bills, some with obscure titles such as budget implementation acts, and other omnibus bills. These types of bills, which by the way do nothing to promote democratic consideration of proposed legislation, increase the complexity.

There are costs of all kinds worked against first nation interests in such a situation. I note in this regard, that Bill C-45, the recent omnibus bill, also provided for an amendment to the act. That amendment called for the involvement of the minister in the administration of Indian Affairs on a reserve. The interested reader of Bill C-428 will not see that particular amendment.

I will refer to the title of the act. I mentioned that it is a good feature of this piece of legislation that it appropriately identifies the contents of the bill. That's unlike legislation that has recently been passed whose titles obscure the contents of the legislation rather than reveal it. The most egregious example I can think of was known as Bill C-3, which was entitled the gender equity in Indian registration act. That became law in January of 2001. The content of that bill was to deal with the right of individuals to equality before and under the law without discrimination on the basis of sex, as provided in section 15 of the charter. There's no such thing as gender equity in the Constitution.

I will turn now to consider the objectives of the act. What is the mischief to be remedied by the proposed amendments in Bill C-428? The first or preambular statement asserts implicitly that Canada's first nations ought not to be “subjected to differential treatment”. This offends the constitutional recognition and affirmation of the distinct collective rights of Indians as aboriginal peoples who are entitled to differential treatment. Differential treatment is demanded by the law of the Constitution. The easily misunderstood concept of equality of citizenship rights, to which all first nations or Indian persons are entitled, is easily confused, in the public mind and in this preambular statement, with the constitutionally mandated treaty and aboriginal rights, which are collective in nature and demand differential treatment.

My recommendation is that a new, substantive, and not a preambular provision be inserted in the bill that clearly identifies the purposes or objectives of the act. This would go a long way toward assisting in judicial or other interpretation of the legislation. I note that section 3 of the Indian Act—and this is an important provision of the Act—reads that “This Act shall be administered by the Minister, who shall be the superintendent general of Indian Affairs”. Without removing or altering that provision, there might be some difficulties interpreting any sort of an amendment that proposes to do things pursuant to the objectives identified in the preamble.

I'll go now to mention the repeal of sections 32 and 33, which have to do with the outlawing of free trade. If you're not familiar with the history of this provision, I would respectfully urge the members of the committee to look at that, which as I understand began in Manitoba. The Dakota farmers were outdoing the local farmers in the Brandon area and they didn't like that. They contacted their friends in Ottawa and had free trade of agricultural products from the reserve outlawed by these particular provisions.

I would cite the literature of Professor Sarah Carter, who has written a book and some articles that would provide you with an excellent historical background of the way in which this has come about. You will know, honourable members, that section 32 has not been enforced for quite a long time. An order in council from 2010 has exempted all bands on the prairies from this operation. This was a prairie provision.

My modest suggestion in regard to the repeal of these provisions is that you can't dispute that the operation of these provisions would have worked to the economic disadvantage to prairie Indian farmers. The act has contributed to a legacy of poverty and marginalization that forms part of a national mythology of racist assumptions about Indians.

Is it good enough to shut the door on this bad legacy? I suggest that when we shut that door we open another door. The repeal of these provisions is an invitation to you, to the federal government, to set up remedial programs to boost Indian agriculture to make amends. Experts in the field would be able to advise you on the details of such programs, but certainly, you will agree that the objective is one that's recommended by a genuine sense of doing the right thing today.

I refer now to the wills and estates provision, which is clause 7 of the bill and which proposes the repeal of sections 42 to 47 of the Indian Act.

By the way, I suggest that some cleaning-up of the drafting be done. The drafting, in respect to clauses 5 and 7, could be done a lot better rather than throwing headings and substantive provisions all in one basket and saying we're repealing all of that. It's better to clean it up and say, “We repeal the heading, we repeal section 32, we repeal section 33”, rather than saying “The heading and blah, blah, blah...”, which can be confusing. We don't need to add unnecessarily to the complexity, and so a little better drafting can help.

The core issue in respect to the proposed repeal of these sections, which have to do with Indian wills and estates, has been considered by the Supreme Court of Canada. Again, the case of Canard from the Sagkeeng First Nation in Manitoba in 1976 is a leading authority in this area. With the repeal of these provisions at first blush, it appears that the wills of Indians resident on reserves would now be governed by provincial laws of general application rather than federal laws under the Indian Act. This is the result of the constitutional division of powers as well as the operation of section 88 of the Indian Act.

It would seem at first blush that this type of wills and succession legislation necessarily involves family relations and, therefore, the traditional values of first nations, their customs and practices. If wills and succession legislation, which also by the way affects interests in reserve lands, is part of first nation law, say Cree family law, then there's an important implication of the repeal of sections 42 to 47.

The question is whether these provincial laws of general application to Indian reserve residents apply, and if so, if they are constitutionally valid, notwithstanding the potential infringement of the treaty or aboriginal rights of the Cree people. I note, by the way, that the current government has also introduced other legislation dealing with family homes, and matrimonial interests and rights on reserve, and the same question appears there. So one has to be very careful when scrutinizing the implications of this sort of legislation, otherwise you're inviting litigation, or challenging it for its constitutional validity.

I mention, for the benefit of the members of the committee, that Cree law, and Cree family law in particular, has long been recognized as good law in Canada, I cite the Connolly and Woolrich case of 1867, which is a reported decision.

In regard to the comments I'm making, I note also that the modern treaties being negotiated with first nations include provisions recognizing the authority of these first nations to make laws in respect to particular aspects of family law. For example, the Maa-nulth Treaty of 2007 includes the power to make laws respecting adoption, child custody, child care, social development, and solemnization of marriages of Maa-nulth citizens.

Clause 6 proposes an amendment to current section 36 regarding special reserves and reserve lands. This is a very difficult topic, both as a matter of statutory interpretation and constitutional analysis and as a political issue. It is not all that easy to discern the objective of this particular provision. Again, it would be helpful if you had, as I suggested, some provision to better identify the objective of the legislation.

As I understand the text of the proposed amendment, it would have a prospective effect of only retaining the status of reserved lands that are now in the category of special reserves. By necessary implication, all reserve lands created in the future would have to be lands to which a legal title were held by the federal or provincial government.

The implications of that have to be examined very carefully, I think, given the difficulties of ascertaining the law applicable to Indian reserve lands. I cite in particular a proposal that has been floated around for a few years. I don't believe this has been put in the form of a bill yet. It's been called under various names, including the first nations property ownership act. I've concluded in my work that what has been proposed, at least so far as I've gathered from reading a book by some people who are not lawyers, that the objective of creating fee simple on-reserve land is constitutionally impossible. In fact, that may be one of the reasons why the bill hasn't surfaced yet.

April 30th, 2013 / 8:50 a.m.
See context

Conservative

The Chair Conservative Chris Warkentin

Colleagues, I call this meeting to order.

This is the 70th meeting of the Standing Committee on Aboriginal Affairs and Northern Development. Today we are continuing our study of Bill C-428. We have two witnesses with us today, one via video conference and the other, Mr. Chartrand, who is of course here in the room.

We'll begin with Chief Perry Bellegarde. Thanks so much for being here. We appreciate your willingness to join us and certainly your time. We'll turn it over to you to begin with. We'll hear your opening statement and then hear the opening statement by Mr. Chartrand in the room. Then we'll begin with questions.

April 25th, 2013 / 10:25 a.m.
See context

Researcher, Blood Tribe

Kelly Tailfeathers

I'd like to respect our fellow first nations for all being here today.

I'm from the Blood Tribe, and I'm here on behalf of our chief, Chief Weaselhead.

Standing committee members, I think you're well aware of our position on the current issue, Bill C-428, and I encourage you all to study our paper.

Our position is pretty clear. The Blood Tribe is of the view that Bill C-428 has the potential to adversely impact our rights. Therefore, Canada was obligated to consult with us prior to introducing such proposed legislation. We recognize that the Indian Act is fairly outdated. However, our main concern is that there has been no meaningful consultation with first nations, including the Blood Tribe.

Again, I go back to what the chief said about the Prime Minister. We have him on record recently stating:

Our government has no grand scheme to repeal or unilaterally re-write 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. So that will be our approach, to replace elements of the Indian Act with more modern legislation and procedures, in partnership with...First Nations.

How does the federal government, with all due respect to Mr. Clarke, of which he is a member, reply to this hypocrisy?

Constant bills are being pushed on our people without our input into them. That's why we're here today.

That's all I have to say. Thank you.

April 25th, 2013 / 10:10 a.m.
See context

Chief, Keeseekoowenin Ojibway First Nation, Executive Council, Anishinaabe Agowidiiwinan

Chief James Plewak

You may wonder what all this history has to do with why we are here on Bill C-428. It is because if you do not understand this history, verified by your documents, you will not understand our fierce opposition to your bill.

Treaty No. 2 in no way diminishes our sovereignty. To the contrary, it gave and still gives your crown the right to exercise its sovereignty over its settlers and the land we shared with them. Every other document is smoke and mirrors and incantations of doctrines of discovery and our inferiority, which made it necessary for you to still, in the 21st century, be amending an act for the gradual civilization of Indians.

Your bill is an infringement on our sovereignty, a breach of our treaty, a breach of the honour of the crown. We want to re-establish the true legal spirit and intent of that treaty. We want a mutually productive, friendly, warm relationship with you and your people.

We continue to hold out our hand of friendship to you, yet while you meet here to discuss removing obsolete nonsense from the Indian Act, your continuing violation of the treaty is killing us. It is a cause of great misery and trauma as Wab Kinew was noting earlier today.

I'll give you one example. Among our Treaty No. 2 first nations, one has been totally dispossessed, Lake St. Martin. Well over 1,000 people were evacuated from there due to deliberate flooding by the Government of Manitoba in order to save the people of Winnipeg from flooding.

Chief Eastman's community was deliberately flooded. The Ebb and Flow reserve of Chief Houle was severely damaged by intentional flooding.

Where has the federal government been? We are still dealing with this problem two years later. “Isn't that a provincial matter?” you ask. This action causes a trespass on our reserve lands, and the federal government has the obligation to take action. In fact, under the Indian Act, which you want to amend, it has the sole authority to lay those trespassing charges.

In case you didn't know about this flooding, it happened in May 2011 and destroyed nearly 200 homes, making the community uninhabitable. Those hundreds and hundreds of people are still, two years later, living in hotels in Winnipeg in temporary placements with nothing tangible on the horizon except promises and requests for patience. This is just one of over a half-dozen communities that are suffering from this kind of flooding of their homes.

Further, we are damaged and traumatized because the schools we insisted upon as part of Treaty No. 2 have been pauperized into an inferior system of education. Only 38% of our high school students graduate. Compare that to the rest of Canada. That's something we have to be mindful of.

April 25th, 2013 / 8:50 a.m.
See context

As an Individual

Wab Kinew

Okay, thank you.

[Witness speaks in Ojibwa]

I'll wait for the simultaneous translation to catch up there. No, it's okay, I'm just kidding.

Good morning, relatives. My name is Wab Kinew. I'm the director of indigenous inclusion at the University of Winnipeg where I'm in the process of setting up programs that help to connect indigenous people with the mainstream economy in a way that respects indigenous values.

In the Ojibwe introduction that I just gave to you, I told you about my lineage. I said I'm a member of the lynx clan. My people are known as the Lake of the Woods Anishinaabe. My father is Tobasonakwut, my grandfather the original Wabanakwut, and they gave to me the Anishinaabe way. My father spoke to me in the Anishinaabe language. Through them I learned Anishinaabe law.

That is correct: we have Anishinaabe law, a law that tells us to take care of each other. I think others should understand this. We, as indigenous nations, the Anishinaabe being but one example, have laws and governance systems that are still valid, in effect, and relevant to our modern conduct. My introduction refers to many of these laws, to my clan, to my family, to my membership in the spirit lodge Midewin. All of these things ascribe rights, responsibilities, and define my expected conduct within Anishinaabe society. If more people understood our laws and cultures, we could bring about reconciliation between indigenous people and other Canadians.

The Indian Act as it exists right now is an affront to these indigenous systems of law, culture, and governance. The Indian Act asserts the supremacy of western law and implies that indigenous law and culture do not have value. By imposing a system of governance on us you tell us that we do not know how to govern ourselves.

This may sound abstract. However, Chandler and Lalonde have found that cultural continuity is a hedge against suicide in first nations in British Columbia. American research suggests that native youth who are active in their cultures are less likely to use drugs and alcohol. If this is what the research tells us, why do we continue with an approach that undermines these cultures and that implies that indigenous nations do not have value? The proper course of action is to help indigenous people revitalize our own cultures and communities. The first step toward helping that take place is meaningful consultation. By consulting with indigenous people you send a message that you value us, our culture, and are therefore interested in a new relationship that is not coloured by the paternalism of the past.

The Indian Act has been very damaging in that it has removed opportunities, made dependence the easiest path for many, and led to the damaging residential school era. I'm against the Indian Act. The real issue is not whether or not to replace the Indian Act, but how to do it. Status Indians and others affected by the act have made life choices according to situations that have been created in part by the legislation. We have decided where to live, whom to live with, and how to earn a living based, in part, on the Indian Act. To change it or remove it without consulting us is not right. First nations people deserve to have our voices heard in designing whatever is to replace the Indian Act for that reason alone. However, results of the duty to consult changes to the Indian Act will affect treaty rights and aboriginal rights, so some meaningful consultation should occur.

I realize that I and other first nations people have been invited to provide comment, but I do not believe this fulfills the crown's duty to consult. Is there transparency as to why I and others invited to speak were chosen? Has a call gone out generally to everyone affected by the Indian Act to provide comment? Is there any assurance that the opinions we provide will be reflected in the handling of the bill? A thorough consultation would not leave room for these questions; hence, I do not believe that the duty to consult is being fulfilled.

There is a proposed provision in Bill C-428 to provide for reporting on collaboration between the federal government, first nations, and other interested parties to develop new legislation to replace the Indian Act. However, this is too vague to represent meaningful consultation. All it requires is that a report be made. I worry that such a report will simply say there has been no progress towards replacing the Indian Act.

If consultation with first nations is a real priority, then it should happen before a bill is tabled, not after. If there is a real desire for it to happen, then we should also spend some time drafting the terms of reference, allocating resources, and setting timelines for that process. We should not merely say, “Let us have a report once a year”. Instead, since Bill C-428 is a piece of legislation designed without meaningful consultation with the first nations people upon whom it will be imposed, it is paternalistic in the tradition of the existing Indian Act.

Solutions imposed from outside of indigenous communities do not work. They have not worked for the past 140 years. Replacing a paternalistic Indian Act with a paternalistic act to amend the Indian Act is not real progress. We must replace the Indian Act, but we must replace it with legislation that has been designed at least in meaningful consultation with, if not entirely by, indigenous people.

The proposed provisions within Bill C-428 are fairly innocuous. I do not think you would find very many people who would argue in favour of residential schools or keeping the laws that made them possible on the books. However, does anyone really fear that the federal government will start funding residential schools again if the Indian Act is left the way it is? I do not think so. So removing these provisions represents picking the low-hanging fruit, if you will. That may not sound too bad, but in a world of limited resources, picking the low-hanging fruit comes at the expense of tackling the more challenging aspects of the relationships between Canada and the indigenous people.

There must be a legal interface between the Anishinaabe law, of which I spoke earlier, and Canadian law, and we have an interface already, interfaces actually. They are called treaties. We should be focusing our attention on honouring the spirit and intent of the treaties. Spending our time tinkering around the edges of the Indian Act distracts us from what we should really be doing to improve the relationship between indigenous people and other Canadians: honouring the treaties in the treaty areas and respecting aboriginal title in the non-treaty areas.

Furthermore, there is only a limited amount of political capital available in this country to deal with indigenous issues. If we expend it on this bill, I worry there may not be enough left over to tackle the real problems in first nations communities. When I visit reserves across this country, the problems I hear about over and over again are suicide, prescription drug abuse, and the lack of opportunity. We should be focusing on tackling these problems. You will recall that Chandler, Lalonde, and others have found that culture, and consequently the indigenous laws embodied therein, can help deal with some of those issues. Let us devote our energies to improving the relationship between indigenous people and Canada and to responding to the immediate crises many first nations people face today.

Based on these remarks, I have three recommendations: one, that the federal government engage both first nations politicians and grassroots indigenous people in a meaningful consultation about replacing the Indian Act, meaningful consultation meaning a consultation process where the opinions expressed by those first nations and indigenous people are not only heard, but reflected in future legislation; two, that this consultation happen before any act to replace the Indian Act is tabled; and three, that you withdraw Bill C-428 as an act of good faith until such meaningful consultations take place.

Meegwetch. Merci. Thank you much.