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This enactment amends the Indian Act to require band councils to publish their by-laws and repeals certain outdated provisions of the Act.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

[Michael Anderson, Policing and Public Safety Advisor, Manitoba Keewatinowi Okimakanak Inc.]

Fourth, although we've made some progress regarding the recognition, respect, enforcement and prosecution of band bylaws, First Nations Land Management Act laws have not been enforced by policing authorities or prosecuted by Crown prosecutors for 20 years, since the coming into force of Bill C-49 in 1999.

As to the enforcement of land code emergency laws, the RCMP says, “The RCMP recognizes First Nations' authority under the FNLMA. However, there are concerns as to whether the FNLMA Land Codes provide the legal authority to enact COVID-19 related laws.” Please see page 13 of our documents.

ISC says, “I appreciate the frustration felt by First Nations who have taken on such fundamental aspects of their governance through the enactment of a Land Code, only to be forced to rely on Indian Act authorities”. Please see the MKO's book of documents, page 16.

The Public Prosecution Service of Canada says the role of PPSC set out in the Director of Public Prosecutions Act is inapplicable to FNLMA land codes and FNLMA first nation laws.

Fifth, there's a harmful uncertainty related to the appointment and empowerment of first nation safety officers to act as peace officers. Simply put, you have to be a peace officer to stop, search, seize and detain, and you need those four powers in order to effectively enforce first nation bylaws under subsection 81(1) and section 85.1 of the Indian Act.

Sixth, PPSC and the RCMP do not accept the validity of Indian Act bylaws enacted after December 15, 2014. Parliament repealed the ministerial power of disallowance and approval of Indian Act bylaws effective December 15, 2014, with the coming into force of Bill C-428. However, as PPSC witnesses have advised this committee and MKO, PPSC will not recognize the validity of bylaws enacted on or after December 16, 2014, unless reviewed by “an appropriate federal government department.”

PPSC, Indigenous Services Canada and the RCMP have each advised this committee and MKO that they will not review bylaws enacted after December 15, 2014. Therefore, there is no federal department that will review existing Indian Act bylaws enacted after December 15, 2014. This means that the protocol will not apply to any existing post-Bill C-428 bylaws, including the health and safety bylaws and their related health orders that have been specifically enacted to address the COVID-19 pandemic. PPSC's acceptance of MKO's proposal to conduct a third party review along with the Public Interest Law Centre appears to be the principal, if not the only, pathway to ensuring that the protocol will apply to the existing first nation COVID-19 emergency laws in the MKO region.

Seventh, the gaps uncovered by the COVID-19 pandemic, including those highlighted in evidence recently presented to this committee, reveal that the legislative framework, the federal civil service and policing authorities are incapable of supporting or are unwilling to support the exercise of first nations' self-determination and law-making powers enacted by Parliament through Bill C-428 and the First Nations Land Management Act.

Grand Chief Settee has a concluding comment.

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

I thank the witnesses for coming in.

Allan, you mentioned in regard to the Indian Act how it's impeding development for first nations business opportunities on reserve. One of the things we mentioned, or what first nations have been doing or have been in partnership...was the First Nations Land Management Act, and how that's providing opportunities for businesses. You look at Osoyoos; you look at Westbank where they've moved away from that and we've seen them grow.

One of the things that Carol mentioned was in regard to first nations being able to draft their own legislation. Bill C-428, which I drafted, would allow first nations to develop their own band bylaws. Would that assist? That's one.

Two, in regard to first nations, also in my private member's bill, the Indian Act would actually be removed, and first nations could grow their own crops and sell them. How do you feel about that? Do you feel it would be beneficial?

I look at opportunities for first nations across Canada. They have different soils where things could be grown. You look in, say, Ontario where tobacco is being grown, for instance. You look in the Prairies where wheat, potatoes, corn, and anything like that can be grown for, say, alcohol production. Then you look at B.C., where they're actually growing grapes and making their own wine in Osoyoos. Could you elaborate further on that?

[The Chair, Conservative, Joe Preston]

It was in camera, so I can't discuss how painful it truly was.

The request for the project budget for the study of Bill C-428 is being distributed right now. It explains that we'll be doing a fair bit of video conferencing, along with the witnesses we've already had.

We're asking for a budget of funds in order to complete this study.

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

It's just a segue with regard to that.

Hypothetically speaking, if my private member's bill, Bill C-428, does pass through the Senate, it will give first nations the right to form their own bylaws. That's a very key component of my bill. It's about self-governance. I think that's one component where first nations can use it.

As a follow-up with regard to wills and estates, would that give first nations the right or the option to put in their own bylaws about wills and estates, to be administered by their own communities, without them violating the current structure or constitution?

Is that a solution?

[Brock A. F. Roe]

There are two avenues by which I see this coming. One involves the clients we have who have to deal with these matters on reserve. I can't breach solicitor-client confidentiality, obviously, but this is the way I see the issue come in. I try to analyze it with the facts and I go to look at the law, as a typical lawyer would do, and I become frustrated. I look at the antiquated provisions and I say that there's no answer here for me, that I have to look at this and be creative. And lawyers will be creative; that's how you develop the common law around a subject. But it's incredibly frustrating. You're walking on eggshells, because you don't know whether a particular area has been proven or not, or whether it's going to be accepted by the judge, or whether the clients will like the advice you can give them.

That was one avenue. The other avenue on this.... I had no idea about this process until, actually, I heard about Mr. Clarke's private member's bill wanting to change certain portions of the Indian Act by taking out antiquated provisions. I had only printed if off—I think it was a year ago or so—and taken a very quick skim of it and said, “Oh, there's the wills and estates in there.” I remember thinking at the time—it was at about the same time the other matter I was dealing with at work came up—that I didn't think this was going to work, because if you're taking those provisions out, what is left in their place to deal with the possessory interests of the reserve land? That thought was similar to what Christopher Devlin, Mr. Gailus' partner in his law firm, provided in his report when this committee was studying Bill C-428.

[Brock A. F. Roe]

Similar to my colleague, I'm going to make some remarks on a broader level on issues that we see and some things that should be addressed.

Because this committee is discussing how to deal with the administration of the estates of first nations, i.e., the stuff that indigenous people possess and own, meaningful consultation obviously needs to take place with first nations on any changes that are desired, keeping in mind those objects that Ms. Richer just reiterated. It's important to remember that first nations in Canada have their own indigenous legal orders as well.

It's also important to remember that those first nations have been dealing with property of their own for a very long time. If we want to consider making changes to how a deceased first nations person's possessions are to be dealt with in Canada, then we need to consider how indigenous peoples in Canada already have been dealing with their property in the past, according to their own legal orders, how they can deal and are dealing with it now, and how that work can be supported by Parliament with sufficient resources.

Also, let us remember that the relationships between the crown and a large number of first nations in Canada are based on treaty. Do not be surprised when engaging on these issues if first nations come to it from a treaty perspective. For those first nations who have no treaty with the crown, be prepared to engage in a process from an aboriginal rights perspective, right? Those are two very different frames of mind.

We also understand that previously, under MP Rob Clarke's private member's bill, Bill C-428, a number of antiquated sections were removed, more or less, from the Indian Act. Subsequently, certain sections within the bill relating to wills and estates were then removed from the bill, so here we are today discussing these same sections, the wills and estates sections.

Before we get into a dialogue, I also want to highlight some important concepts and issues or items that ought to be considered in any type of amendments going forward. These are sporadic, by the way. I tried to organize them into some meaningful sense, but wills and estates are complicated and encapsulate a large area of law jurisdiction. I tried to filter it into some type of organizational paradigm.

One is the concept of “ordinarily resident on reserve”. It's not just on reserve. Even the “Decedent Estates Procedures Manual” acknowledges this, but this is the guide that the bureaucrats in AANDC use to help themselves when they administer these estates. It also refers to first nations who are on crown land, National Defence land, provincial parkland, national parks, and lands bought by the federal crown for first nations that don't have reserve status. Keep in mind that there are other people who are captured in this, not just people on reserve. In Alberta, there's a group of people living on crown land in the mountains, on the eastern slopes, in the Smallboy camp. That's an example.

Two is dispute resolution. This was discussed on April 8 before this committee as well, in a cursory context. The minister, or AANDC, doesn't have the administrative tool to deal with contentious estates. If some change is desired, consider talking with first nations to see what sorts of ideas they might come up with to deal with dispute resolution. They know their community best, so they would have a good idea of how to deal with contentious matters. Also, you can't just dump another administrative process onto first nations who are already dealing with estates matters. I think those processes need to be supported adequately with resources.

In regard to intestate thresholds, under the intestate provisions of various provincial regimes, there is a threshold dollar amount. The first dollar value would go to the spouse. Afterwards, any remaining value would be split up between the children and the spouse, or however the formula is set out. Currently under the Indian Act that threshold is $75,000. In Alberta it was $40,000 until it was recently amended up to $150,000 in new legislation. I'm not sure about B.C. In Ontario I understand it's $200,000. There's a disparity there that we need to consider. I've just been told that it's $300,000 in B.C.

There's a significant difference. We need to consider why there's a difference. Again, it's pretty obvious. Provinces can't deal with possessory interests in reserve lands, right? That's in sections 91 and 92, ultra vires, intra vires, and we have to keep that in mind.

There's also clarity. You can't simply enact a regime where the federal law applies in one context of the administration of estates and then provincial law comes in for another.

I'm trying to think, if a client came to me with a complex matter that considered both of those jurisdictions and the advice I needed to give, I'd have to research both areas of law and put together advice. I can tell you that would cost a lot of money, more than if it was under one regime or the other, simply where there is already an existing body of case law for both.

Regarding family administrators, you will recall previous evidence from Mr. Gray on April 8, that approximately 20% of estates are handled by AANDC administrators, the balance being handled by appointment of family administrators.

We're concerned that AANDC would look at these family administrators with potential liability for any decisions these family administrators make, and AANDC might distance themselves from these family administrators in order to protect themselves from liability.

The family administrators are then kind of left to their own devices to deal with decision-making, and they undergo a steep learning curve just as lawyers do. We need to consider that, and we need to support them in their decision-making, and make sure they have clear guidelines. Otherwise estates matters aren't going to be helped or dealt with.

Next are the provincial government administrators. This was new, and I never knew this before, but on April 8 it was either Mr. Gray or Mr. Saranchuk who said that there are contracts with two provincial governments regarding their administration of estates files.

This was kind of interesting. I thought maybe individuals who are administering those contracts should be brought before committee to discuss how they think it's going, if there's anything they can improve, the same as first nations who are being dealt with under that contract.

There was a comment about regional disparities at the last meeting here as well. AANDC has about a 20% departmental administration take-up. When you break that up across the country, there was serious regional disparity between B.C. and Alberta, for instance. From what I understand, nobody really understood why when I looked at the transcript from the last meeting. So here are my thoughts on that, and this is based on our discussions from the think tank discussion group we had previously.

One, you have to look at how legally recognized possessory interests in reserve land are spread out across the country. In B.C., there are a lot more certificates of possession or certificates of occupancy that are issued, which we can otherwise call lawful possessory interests. In Alberta there are significantly less, so upon someone's death, you're going to be dealing with a lot less than if you were in B.C.

B.C. also has a treaty process that a number of first nations are engaged in. This triggers a lot of people needing to consider all of the outstanding estates because there are outstanding interests in reserve land that need to be taken care of.

Some nations are also considering whether to adopt the First Nations Land Management Act. Again, there are a number of outstanding interests in reserve land that need to be dealt with.

You can think about, if you're going to sell your house on regular titled land, you have a mortgage on title, maybe there's a certificate of lis pendens or some type of writ on your title. Before you sell that to the next person, you need to deal with those outstanding interests on title.

There's the same kind of idea or concept with reserve lands. Before that transfer of land occurs under a treaty or self-government agreement or under FNLMA, you need to deal with all of these outstanding interests in reserve land. So in B.C. you're going to have a pile of certificates of possession that are issued. There are a lot of old estates files that are taking a long time to deal with. I think in B.C. you're going to see more of that than in, say, Alberta just because of those processes.

I think that can explain why there's some regional disparity between the provinces.

In regard to holograph wills, these are rather easy to prepare. The concept is that you take a pen and write down your intentions on what you want to do with your stuff upon your death. As long as it's clear, and you clearly write out your property and your intentions with that, and it's your own signature in your own writing, it's usually non-contentious.

Under the Indian Act provisions under their will making, that's roughly the criteria. There is a set criteria that Mr. Gray and Mr. Saranchuk discussed at the last committee meeting.

If you have this provision of providing a means for a holograph will to be prepared by first nation individuals on reserve, and you replace it with a requirement for a formal will, we're concerned in that what you're saying is that instead of writing something in your own hand that you can do on the reserve with some limited guidance, you're going to need to seek legal counsel on how to prepare a will.

A will is a very different document from a holograph will, and there are certain formalities that need to be addressed. You can't have a beneficiary in your will as a witness to your will. That's going to be tough, because you have to educate everybody. For instance, you trust your sister a lot perhaps because she takes care of a lot of your family's business, but if you also want her to have something, then she can't witness your will, but you want her to help you prepare it.

You're also probably going to want to seek advice on whether or not your bequests or the testamentary dispositions in your will would be valid under your will. For transferring reserve land, if you have a valid lawful possessor interest, like a certificate of possession, you'll want to account for that in your will and transfer it.

There is a concept of something called a buckshee lease, which is what we'll call an unrecognized interest in reserve land, which isn't formally recognized. A lot of first nations live in a trailer in which the family has lived for a long time and everyone knows that they live on a certain piece of land. We can call that an interest, but in terms of the Indian Act, it's not recognized and it's an unrecognized lawful interest. When the individual living in the mobile home on that spot drafts a will, can they actually transfer that spot to someone else? This is something that needs to be addressed in the Indian Act, because there are a lot of interests like this out there.

I would say you need a lot of input from first nations on how that needs to be dealt with, because it's not simply inserting a title regime. There are lots of questions about that because of the collective nature of reserve lands.

Concerning probate, if you want to draft a will, you have to take it to probate and you have to have it approved by a court. If you live on a reserve three hours away, you may have to drive to a courthouse or somewhere to get the information, or maybe you're lucky and you have Internet and you can print it off and deal with it then. You're going to have to pay probate fees. You're probably going to have to seek legal help or legal information of some sort.

I don't know if somebody living on reserve can seek legal aid and whether they're going to meet the threshold requirements for legal aid in the provinces, and as we all know, across the country their budgets have been cut.

As well, what do we do with the 8% of people who have wills already? That was discussed as well. If 8% of first nations people living on reserve are drafting wills and we do something new, is there going to be something provided in any act or wherever that would account for those existing wills? Will those old holograph wills be grandfathered or are we going to require them to get legal advice and draft something new? Those people are going to be hard to find. You have to talk to them and say, “You need to reconsider all this. You can't give that away in that manner. We have to deal with it in a different way.”

Regarding public guardians and trustees, my understanding, based on a think tank discussion group at which we had three public guardians and trustees from Saskatchewan, Ontario, and British Columbia, is that they don't have the current administrative knowledge or expertise with respect to first nations issues on reserve. Some have an idea. There is a body of some case law on it, but not a lot, that they can learn from. They don't have that knowledge, nor do they have the budget to deal with this.

If you want to think about transferring any authority to the provinces to deal with these estates, think about those 3,600 open case files right now and just transferring them over to the provinces. Think of the administrative bureaucratic exercise that goes into saying that one group is in, or that somebody has to deal with the B.C. group because there are a lot more and they will have to have more staff on that. In Alberta, Saskatchewan, the territories, and across the country, it would be the same thing.

Those are just some things to keep in mind, because it seems to be a relatively easy process, but it's actually quite complicated and it's going to take a lot.

Those are my comments.

[John Gailus, Partner, Devlin Gailus Barristers and Solicitors]

Thank you, Mr. Chair. It's good to be back.

I want to thank you for inviting me here to talk about this really important topic. It is complex, and I know it's kind of a vexing issue for a number of first nations and first nations individuals.

Just by way of background, I'm a member of the Haida Nation in British Columbia. I'm also a practising lawyer. I've been practising in the aboriginal law area for the last 15 years throughout western Canada. Prior to that I spent four and a half years working for what was then the Department of Indian Affairs and Northern Development. I spent all of six weeks doing estates and got out of there and moved to lands for another four and a half years. But even working on lands, estate issues always seemed to pop up when we were trying to do economic development on reserve, and it still does today. As part of my practice I do some estates work. I have probably half a dozen files, complex files, usually involving land, usually involving leases of first nation land, so developments on reserve. I don't do any off-reserve estates work, just the on-reserve stuff, so hopefully I can give you a little bit of my knowledge in terms of ways to maybe improve the system.

What I want to talk about, and I want to be really brief on this, is sort of at a very high level, and this is really a question for the committee: what is the issue that needs to be resolved here? Is there a better way to address the wills and estates of status Indians who reside on reserve? I think the answer is yes, but the solution is not simple.

I think it was in February or March my colleagues here on the panel and I were invited here to Ottawa to a think tank that the department had put on to look at potential solutions. A number of solutions came out of that, so when I'm speaking of these solutions, I didn't come up with them myself. These were some solutions that the group as a whole came up with. It was good because we actually had representatives from the province, from the public guardian and trustee, and I was there representing the Canadian Bar Association. My friends here from the IBA were there, as well as people from the department who actually work on a day-to-day basis with these matters.

I think there are four possible responses. The first one is the status quo. I always give this to my clients when I'm giving them advice: do nothing. It's always an option. I'll leave that to my friends from AANDC to talk about. The second is moving to provincial jurisdiction. The third is the first nations control, first nations optional legislation, so something like we just saw recently with the Family Homes on Reserves and Matrimonial Interests or Rights Act. The fourth is amendments to the Indian Act and the Indian estate regulations.

As I said, I'm not going to address the status quo. I just want to point out some issues, though, that came up in terms of moving to provincial jurisdiction. As you're aware, the law is different from province to province. There are significant costs to retaining lawyers and court applications. The question you might want to answer is whether the process is going to be more efficient by moving to a provincial system. My experience is that it isn't. There are questions in terms of how the provincial law will intersect with the Indian Act lands provisions. One of the things that I learned from our think tank was that the public trustee actually charges to manage estates, so there may be a cost either to the individual first nations people or to the department if you decide that you want to move to a provincial system.

There were some submissions that the CBA aboriginal law subsection did on Bill C-428 that identifies some of these issues. I'd recommend them to the committee.

The second option would be moving to first nations jurisdiction. The question that I have is, and my friends probably might answer this, is this something that first nations want? Is this something that first nations should be exercising jurisdiction over? Unlike lands, estates are fundamentally personal matters. Any process would have to be adequately funded if first nations decided to take on this responsibility.

The fourth option would be amending the act and regulations. I think this should be seriously considered.

Much of the current process is policy driven rather than legislation and regulations. It's a fairly lean set of laws that you're dealing with, and there are a number of administrative gaps, as I would call them. One example is whether or not an administrator has to pass their accounts at the end of the administration of the estate. This is something that's required provincially under the Trustee Act, but it seems to depend, when you're talking to the folks at AANDC.

In British Columbia, where I reside and do most of my work, there's been a new act put in place just recently, as of March 31, called the Will, Estates and Succession Act. There are opportunities to look at other pieces of provincial legislation, and to, I'll use the word “cherry-pick”, from these various provincial legislative regimes to develop a comprehensive code.

Finally, I think any recommendations to make changes to the current system must consider: first of all, the constitutional responsibility of Canada under section 91, item 24; the costs that may be associated with individuals moving to a different system from the current system; the cost to the Government of Canada of change, for example, the need to enter into some sort of memorandum of understanding with the provinces for fee for services to manage these small-value estates that the public trustee is now going to be responsible for; whether making changes will lead to efficiencies in the management of these estates; and finally, the long-term cost to families and first nations of lands being tied up in estates.

Thank you.

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

It may not have been brought to the attention of the department, but there was a fairly high-profile case in British Columbia where some ceremonial masks were sold off by a family member. There were some efforts made to recover it, but there was some allegation that the family members who sold it off did not have the rights to those ceremonial masks. So it may not have come to the department's attention, but I think it speaks to the complexity of these matters and where provincial jurisdiction simply would not have the background or the knowledge to deal with some of these complex matters.

I went through the testimony that was before committee on Bill C-428, where of course any number of issues were raised. Certainly one of them was that in other pieces of legislation where it's been suggested that provinces could step in, some serious concerns have been raised about the lack of capacity of the provincial jurisdiction to deal with some of these very unique situations.

[Andrew Saranchuk]

Sorry, I can't remember the question, but I do remember, and you're right, there was an issue about Quebec law and Bill C-428. I'm sorry, but I just can't remember the question at the time.

[Andrew Saranchuk]

Great. Thank you.

I'd like to thank the committee at the outset for providing this opportunity to speak to the administration of wills and estates on reserve.

My name is Andrew Saranchuk. I'm the assistant deputy minister responsible for the resolution and individual affairs sector in the Department of Aboriginal Affairs and Northern Development. That sector of the department includes the residential school settlement agreement, the secure certificate of Indian status card, the office of the Indian registrar, and Indian moneys, estates, and treaty annuities.

I have with me today, Roy Gray, who is the director who leads the Indian moneys, estates, and treaty annuities team, and two of my colleagues from the Department of Justice, Mr. Martin Reiher, acting general counsel, and Mr. Tom Vincent, legal counsel, since this is, of course, an inherently legal issue.

We're pleased to be here today to brief you on the administration of wills and estates on reserve land. I thought it would be helpful to begin by describing the existing system under the Indian Act and the process for the administration of estates. We will then identify some considerations that would likely be relevant to any review in this area that might be undertaken.

As you know, in Canada, wills and estates are a provincial responsibility. Therefore, for most Canadians, the laws of the province or territory where they lived at the time of their death apply to the administration of their estate, whether they died testate, with a will, or intestate, without a will. However, for first nations individuals who are registered or entitled to be registered under the Indian Act and who have died ordinarily resident on a reserve, the administration of wills and estates is the responsibility of the Minister of Aboriginal Affairs and Northern Development. To be clear, the minister does not administer the estates of first nation individuals who live off reserve.

There are some key differences between the Indian Act estates system administered by the minister and the provincial and territorial systems. I will identify five main areas related to the administration of estates on reserve and highlight the main commonalities and differences with the provincial and territorial systems. In doing so, I hope to provide the committee with an understanding of what both the minister and the department do in this area.

I would like to begin by examining the process related to wills.

As I mentioned, when a person dies, they will have either left a will or died without one. In most provinces, before a will is recognized as having legal force, it needs to be probated, which is the process of proving that a document is the valid final will of the deceased. Probate is usually granted by a court. In Quebec, individuals may also register a will with a notary. A notarial will in Quebec has legal force when the testator dies, and it does not need to be probated after their death.

On reserve, the Indian Act and the Indian Estates Regulations provide the legislative framework and administrative guidance for estates and will administration. Under the act, all registered Indians are entitled to write wills. However, after a death, rather than go to a court to have the will probated, the will is sent to a regional office of Aboriginal Affairs and Northern Development Canada, where an official will approve the document on behalf of the minister, based on the conditions set out in the act.

The conditions that need to be met for a will to be approved under the Indian Act are similar to those in the provinces and territories, but not as strict, in certain respects. For example, most provinces require that a will be witnessed, but that is not the case under the Indian Act. The will must also be written and signed by the deceased, and indicate the deceased individual's wishes with respect to the disposition of his or her property upon death.

Once the will has been approved as meeting the basic requirements, family members may challenge it, if they believe there are problems. It is at this stage that the minister, similarly to the provincial system, has the authority to declare a will, or part of a will, void in certain circumstances.

Those circumstances include the following: if the will was written under duress or undue influence; if the testator lacked capacity—for example, owing to illness or infirmity at the time it was made; if the terms of the will would impose hardship on the testator's dependants; if the will disposes of land in a reserve in a manner contrary to the interests of the band or to the Indian Act; or, if the terms of the will are too vague or uncertain and would render the administration and equitable distribution of the estate difficult or impossible to carry out.

This brings me to the second area of estates administration, and that is dispute resolution.

One of the main differences between the Indian Act system and that of the provinces and territories involves the way a will may be challenged.

Since Aboriginal Affairs and Northern Development Canada is not set up to hear and resolve disputes in estates in the same way as courts in the provinces, the general practice has been to transfer jurisdiction of such disputes to a provincial or territorial court. Under the Indian Act, on behalf of the minister, the department has the authority to refer a particular question, or an entire estate, to the court. In either case, the Indian Act continues to apply, but the family can plead their case before a provincial judge, rather than before the department's officials.

The third area of estates administration that I would like to mention is intestacy and the process of appointing estate administrators.

Generally in the provinces and territories, if there is no will, then family members need to apply to a court for letters of administration according to the laws of the province or territory.

Under the Indian Act, if there is no will for a first nation individual living on reserve, family members apply to the department to be appointed as the administrator of the estate. The department will make all efforts to appoint a family member of the deceased to administer the estate. Family members are invited to apply to be an administrator. Once an administrator is selected, the others with an interest in the estate will be given an opportunity to object to the appointment, if they wish. Departmental officials will only be appointed if no family member is willing or able to administer the estate.

In the majority of cases, for first nations individuals who die ordinarily resident on reserve, there is no will in the estate. This means that the intestacy provisions in the Indian Act, found at section 48, apply to determine how and to whom the estate is to be distributed. These provisions are similar to those of the provinces and territories.

Under the act, section 48 specifies clearly how the estate is to be divided in the event there is no will. For example, if there is a survivor, the first $75,000 goes to the surviving spouse. If there is one child, the surviving spouse and the child split the estate after payment of the spousal preference share, and so on. You'll see there's quite a series of rules there. Intestacy can also include the division of any possession of interest in reserve lands that was held by the deceased.

This brings me to the fourth aspect of the Indian Act estates administration that I would like to mention briefly. That is the treatment of reserve land when it is part of an estate, and in particular, the rules of the Indian Act designed to maintain the integrity of on-reserve land.

The Constitution Act, 1867 grants the federal government exclusive jurisdiction over lands reserved for the Indians. This means that provincial and territorial laws cannot deal with the possession of interests in reserve land, and this includes provincial wills and estates legislation. It is for this reason that the Indian Act has rules regarding reserve lands and estates. In particular, the Indian Act clearly states that reserve land interests can only be transferred to people who are members of the first nation that holds that reserve, and this applies in the context of wills and estates as well.

The existing estate process provides that if an heir or beneficiary of the reserve land interest is not a band member, and is therefore not entitled to possess reserve land, under the Indian Act, the minister is obliged to try to sell that land to another band member and give the proceeds of the sale to the heirs or beneficiaries involved. If there is no buyer after six months, the land will revert to the first nation. Clearly, this is a significant difference from the provincial system.

The fifth and final aspect I'd like to note is that various services relating to wills and estates under the current system are provided by the department at no cost to first nations individuals. For example, the approval of wills and the appointment of administrators are both done at no cost to the estates or to the heirs. This is not the case under provincial systems, and there is normally a cost associated with those steps.

That's not to say all costs associated with the wills and estates of first nations individuals living on reserve are covered. In particular, there are costs such as legal costs and the court fees that are not covered for first nations individuals.

The five aspects I just presented relate to the existing system, and hopefully give this committee a sense of what the minister and the department do in this area. But as part of its general responsibility in the area of estates administration, the Department of Aboriginal Affairs has begun exploring how its services in this area could be improved. Since the introduction of Bill C-428 in June 2012, we have spoken with several experts to gain a better understanding of how estates work in the provinces and territories, and where there may be potential intersections and opportunities to improve the current system if changes are desired.

From that perspective, I would like to offer very brief comments to the committee on some of the considerations that would likely be relevant to any possible review or reform of the estates system for first nations individuals on reserve.

At the broadest level, a review could explore whether improvements could be made to the current Indian Act estates system. For example, in addition to its administrative function, as mentioned, the department currently has a role in the resolution of disputes arising from estates. Consideration could be given as to whether or not the department could maintain its administrative role and devolve the judicial function to another body. A review could also explore whether options exist for first nations, or aggregates of first nations such as tribal councils, to have a role in estates administration, particularly with respect to these judicial functions. This would be consistent, of course, with first nations' aspirations for more control over their own affairs and with the objective of reducing departmental and ministerial involvement in their day-to-day lives.

In any review, consideration will have to be given to the jurisdictional challenges that are inherent in any potential changes to the administration of estates on reserve land. The Constitution Act, 1867 grants the federal government exclusive jurisdiction over "lands reserved for the Indians”. The case law has interpreted the constitutional doctrines of distribution of powers to mean that provincial and territorial laws cannot deal with the possession and transfer of interests in reserve land, and this includes provincial wills and estates legislation.

Therefore, some federal rules will presumably always be required at least in respect to reserve lands. However, there might be options for greater application of provincial laws in other areas, although this would obviously necessitate engaging on these issues with provinces and territories to a certain extent.

As part of this, consideration would also have to be given to the fact that if the estates provisions in the Indian Act are removed, an alternative regime would be required to replace them. If no alternative were explicitly identified, provincial or territorial laws might apply to the administration of estates on reserve to the extent that they were not inconsistent with the Indian Act and did not deal with the possession of reserve land. However, it seems clear that provincial and territorial laws would presumably not apply of their own force to the possession or transfer of reserve lands. So, simply removing the provisions of the Indian Act would, at a minimum, create a partial legislative gap meaning that the courts would need to get involved to provide guidance in this area. The result is that meaningful and orderly change in this area is not as simple as simply repealing the estates provisions in the Indian Act. Our advice would be to be clear and explicit about any replacement regime and not leave it to the courts.

Finally, it would likely be relevant to consider the potential implications of modifying the services that are currently provided by the department to first nations individuals, some at no cost, and consider how they would be paid for in the future.

I hope we have made this complex area a little bit clearer. We would be pleased to answer any questions that you might have.

Motions in amendment

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

Mr. Speaker, certainly this government is taking steps where we can to provide options for first nations to get out from under the Indian Act. When we look at things like the First Nations Land Management Act, which removes the land related provisions for first nations who want to opt in, the legislation allows first nations to opt out of the Indian Act election system.

The hon. member for Desnethé—Missinippi—Churchill River proposed Bill C-428, which removes several sections of the Indian Act. As the Prime Minister said during the Crown-First Nations Gathering, simply blowing up the Indian Act would leave too big a hole. We need to work with first nations to systematically dismantle the Indian Act and that is what we are doing here. We are taking the election provisions and giving first nations the option to get out from underneath the paternalistic Indian Act.

Indian Act Amendment and Replacement Act

[The Acting Speaker, Conservative, Bruce Stanton]

It being 5:30 p.m., the House will now proceed to the taking of the deferred recorded division on the motions at report stage of Bill C-428 under private member's business.

Call in the members.

The House resumed from November 18 consideration of Bill C-428, An Act to amend the Indian Act (publication of by-laws) and to provide for its replacement, as reported (with amendments) from the committee, and of the motions in Group No. 1.

[Grand Chief Craig Makinaw, Grand Chief, Confederacy of Treaty 6 First Nations]

Good morning.

[Witness speaks in Cree]

Today I am speaking for the Confederacy of Treaty 6 on Bill C-9.

I am pleased to appear today on behalf of the Confederacy of Treaty 6 First Nations as well as my home nation, the Ermineskin Cree Nation.

As grand chief of the confederacy, I'm tasked with advocating for the protection of our treaty rights which have been enshrined in section 35 of the Constitution Act, 1982, as well as in the sacred agreements themselves. As grand chief I advocate for the 18 member nations and speak from a unified position.

Today I've been tasked with outlining our concerns with Bill C-9, the first nations elections act, and the continued imposition of supposed Canadian authority over first nations and our governance. The problematic sections of Bill C-9 are as follows.

Overall Bill C-9 can be seen as a slight modification on the current default election system outlined in section 74 of the Indian Act. These slight changes, although minimal, have great implications for first nations that rely on their own custom laws or those encountering some leadership issues. According to INAC numbers, out of 617 first nations in Canada, 238 hold their elections according to the Indian Act, 343 hold custom election systems, and 36 are self-governing.

The changes proposed by the bill may be of interest to the 238 that hold their elections in line with the Indian Act, but they will also have implications for those 343 that hold custom elections.

Our specific concern is with clause 3 of the bill in which the opt-in legislation can be applied by order in council to a first nation for which a protracted leadership dispute has significantly compromised governance of that first nation.

Interpretation of this provision could lead to the imposition of the new act on a first nation that is following a custom election system and that is involved in a dispute. By empowering the minister to impose the act, the Government of Canada once gain is overstepping its bounds in regard to first nations governance.

Disputes in leadership are commonplace in politics, yet first nations are the only bodies of which the leadership can be unilaterally changed, be it through the Indian Act or through Bill C-9.

Further to this intrusion on first nations governance, the minister and INAC are given the ability to define who an elector is. Although some first nations have come in line with Corbiere, the onus falls on the government to determine who these bands are and to deal with them individually. There is no unilateral blanket definition of elector.

These intrusions of the federal government continue to serve as a detriment to leadership and to relationship building, and they seem to impose changes that fit the government agenda.

Compounding the definition of elector is the provision that empowers the electors to petition for a change in leadership. This petition exists and is unique to first nations in a very discriminatory fashion, and as well may lead to the attempted application of the provincial judicial system, which is a violation of section 91, class 24, of the BNA Act, 1867.

These issues must be taken into full consideration by the minister and government.

On the right to self-determination, attempting to impose new provisions regarding first nations elections is a violation of their rights as laid out in section 35.

There are also internationally recognized inherent rights of first nations. A UN declaration outlines the rights of first nations in regard to governance. I've referenced four articles in my presentation. I'll just give the numbers, because there are four different sections, as you all know, in the declaration: article 3, “Indigenous peoples have the right to self-determination; article 4, “Indigenous peoples, in exercising their right to self-determination...”; article 5, “Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social, and cultural institutions...”; and article 6, “Every indigenous individual has the right to a nationality.”

The chiefs of Treaty 6 call upon the INAC minister to respect and enact these provisions of the UN declaration, and not simply recognize, but affirm them through practice.

Bill C-9 is not to be construed as a respecting of first nations governance. The reality is that Canada is attempting to define the rules by which first nations govern themselves, and this is not self-determination.

With respect to the contradictory actions of the government, once again we have an example of the government acting contrary to the statement made by the Prime Minister at the crown-first nations gathering in 2012.

Unilateral imposition or altering of the Indian Act was targeted by Harper as a step in the wrong direction, yet we have been provided with numerous alterations and changes through Bill C-45, Bill C-27, Bill C-9, and finally with Bill C-428.

Chiefs call upon the continued attacks on our sovereignty to cease and for the Prime Minister to stand by his words. Archaic provisions of the Indian Act and perhaps the entire act itself must be scrapped. However, the replacement legislation must be created by first nations and embody the relationships that serve as a foundation for this country. A treaty must be fully implemented and enshrined.

In closing, I would like to state that the provisions that allow for a unilateral imposition of the act on those first nations that follow custom election systems must be re-examined as this is a direct violation of our treaty and their inherent rights enshrined in section 35 as well as in section 91, class 24, of the BNA Act, 1867.

The government appears to be making a habit of violating these foundational documents, including the breaking of the treaty with little recourse or penalty. This continued approach will only hamper progress not only for first nations, but for the country as a whole.

The chiefs of Treaty 6 call upon the government to retract all bills that are unilateral in nature and demand that meaningful consultation begin at the nation-to-nation level.

Thank you for your time and consideration today.

I have another paper besides my confederacy paper from the Treaty 6 chiefs. It's from Ermineskin. They are pretty much the same, so as you read them both, the arguments are the same.

Again, thank you for your time and consideration in my being here today.

[Ray Boughen, Conservative, Palliser, SK]

Mr. Speaker, I am very certain that we, in this House, can agree that it is time the first nations gained their independence from what is largely a paternalistic, almost feudal, system of governance, one predicated on an act that is almost obscene in its condescension and paternalism.

The Indian Act is archaic. Enacted in 1876, the act is more than 125 years old and is one of the oldest pieces of Canadian legislation. It has no place in contemporary Canadian society. The first nations deserve to have their own truly indigenous system of governance and are quite capable of doing so.

I am therefore proud to stand in full support of Bill C-428 and the remarkable efforts of the member for Desnethé—Missinippi—Churchill River to bring this matter before the House.

I would point out to hon. members that Bill C-428 is not a full-scale repeal of the Indian Act. Instead, it seeks to amend and replace very specific outdated and antiquated clauses that are either not being enforced or are hindering first nations from achieving lasting cultural freedom and true economic and societal success.

Time and time again in this House, we speak about government accountability, accountability to all our citizens, our constituents, this House, and most critically, our great nation.

Our government remains committed to working with first nations to make changes to elements of the Indian Act that are barriers to first nations governance and economic growth.

Today in this House of Commons, which should and must be representative of all the people of Canada, I would like to speak about another type of accountability, the accountability of first nations governments to their own communities. Bill C-428 would propose to enhance the essential links between those who govern and those who are governed, forevermore.

First nations band councils do not currently have the same opportunities that urban and rural municipalities have to independently develop and enforce bylaws, which are essential for the safe and timely running of their communities.

Unfortunately, there is no requirement for first nations to make their bylaws publicly available to their members. As a result, for years, first nations residents and law enforcement officials have found it difficult to ascertain the specific nature and quality of the bylaws that exist in each individual first nation.

Moreover, in a true testament to the paternalism of the Indian Act, first nations band councils have had to seek out the Minister of Aboriginal Affairs to request approval for each and every bylaw they wish to pass into legislation.

This cumbersome process has caused many bands to wait lengthy periods of time for formal approval, or conversely, to discover that their bylaws have been declined. Other band councils have chosen to completely bypass the minister, and as a result do not openly inform their membership of those changes to band bylaws.

Currently, following the submission of new bylaws to the minister, there follows a 40-day period during which the law properly voted on and passed by the respective band council may be disallowed by the minister. No such legislation exists anywhere in any provincial or municipal act within mainstream Canadian society.

In practise, this process often stretches out to well beyond the 40-day limit, a result of the back and forth between the bureaucracy in Aboriginal Affairs and the band council on change requests to the already passed bylaw.

The proposed bill would eliminate the requirement for aboriginal councils to request approval from the Minister of Aboriginal Affairs for bylaws, which are formalized into law as a matter of course in the various other legislative bodies, be it at the borough, village, or municipal level, as they currently exist within greater Canadian society.

Bill C-428 would create a more transparent and accountable process for all first nations band members and would remove the department and the minister from the equation.

First nations councils would be required to publish their bylaws on their websites or via some readily accessible public communication channel, such as a band newsletter, a widely read local newspaper, television, radio, or some or all of the above.

All first nations communities deserve to have the opportunity to hold their councils fully accountable without external, and at times naive and unenlightened, oversight.

I believe that an integrated step in government accountability lies in providing the ability for all first nations to not only make their own bylaws but to publish them.

Bill C-428 would place the responsibility for bylaw-making powers squarely in the hands of the first nations communities, where it belongs. It would provide the grassroots membership of the bands with greater accountability from their band councils. The requirement to make each first nation bylaw publicly accessible would provide clarity for first nations residents, visitors, and law enforcement officials seeking to understand their collective community obligation to either abide by or enforce the laws within the community.

Bill C-428 would repeal sections of the Indian Act, which, though they might remain in law, are no longer enforceable or relevant. This redundancy confuses the real issues facing the Crown and the first nations. However, before we can proceed, we must remove this redundancy so that we, as a House, can begin to see the portions of the Indian Act that substantively affect the daily lives of the first nations people.

Bill C-428 would seek to bring the language and content of the existing statute into the modern era. By taking concrete steps to amend the language and remove outdated and irrelevant sections of the Indian Act, the bill would address some of the challenges facing first nations communities with regard to their political, social, and economic development.

Firm incremental changes such as these would truly pave the way for further legislation to be developed in collaboration with first nations legislation, which, indeed, would benefit all Canadians.

It is only by building on the goodwill of all Canadians, who I believe wish to see us work together on this momentous journey to bring all of our citizens to greater prosperity and a sense of self-worth, that we can begin to share the true potential of this great land we call Canada.

[Mylène Freeman, NDP, Argenteuil—Papineau—Mirabel, QC]

Mr. Speaker, I am speaking on the bill to give voice to the concerns that have been expressed to me by members of the community of Kanesatake, which is in my riding, who would be directly affected by the legislation proposed in the Conservative private member's bill, Bill C-428.

The concerns that have been raised in the bill remind us that we need to move forward and truly work on a nation-to-nation paradigm rather than through this paternalistic, piecemeal, and unilateral approach that the government has been using and continues to use in this bill.

Bill C-428 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 on dismantling the Indian Act.

Like pretty well all legislation pertaining to the Indian Act put forward by the Conservative government, the bill has major flaws and does not solve the problems it wishes to address. Although it does delete some archaic provisions of the bill, other deleted sections like the provisions on wills and estates could put first nation citizens living on reserve in legal limbo because there is no guarantee that provincial legislation will cover their situation.

What is more, there was no consultation with first nations before presenting the bill, like pretty well all Conservative legislation on this issue. The overriding issue with the relationship that the Conservative government has with first nations is that of a unilateral, paternalistic one. That is to say, it does not want to wait for everyone to be in agreement; it is the government and it knows best, so it is going to go ahead and do this. This is not an approach that is respectful of what unfortunately is not legally, but should be, the status of first nations in this country.

We all know that what is at the basis of a relationship and should always be at the basis of a relationship is a nation-to-nation relationship. Bill C-428 was drafted without consultation with first nations, reinforcing this unhealthy relationship. Unfortunately, it is not surprising, as I mentioned, that the Conservatives, like the Liberals before them, acted unilaterally rather than engaging in meaningful consultation and collaboration.

I sincerely feel like I have said this many times on many bills. Unfortunately, I feel it is once again important that I state that I strongly believe that there is no greater or more urgent challenge facing us as MPs than the need to resolve the degrading relationship that Canada has with our aboriginal people.

There are clear actions that the government can, must, and could take immediately by using the UN declaration on indigenous peoples as a guide for what actions must be taken toward the sovereignty and decolonization of aboriginal people. Unfortunately, the number one thing that needs to be done in order to respect and address this is completely ignored by the Conservative government when it fails to do any kind of consultation.

At a minimum, we should expect to have a minister responsible for the file introducing a bill such as this. The Conservative tactic of using a backbencher to advance policy is a lack of leadership and demonstrates its chronic inability to move forward in the legislative process honestly and in good faith. The very fact that a government private member rather than the minister responsible is presenting the bill means that the steps that the bill would have to go through to seek legal relevance and the steps that the House would go through, such as the amount of debate that it would go through or the access that it has to information from the ministry, are all greatly relaxed. It means the bill has a lot less oversight than it would if it were presented by a minister.

Acting in this way to begin with, let alone the lack of consultation, means that it really aggravates the problems rather than solves them.

I believe, alongside my colleagues from the NDP, that we must move away from this paternalism that is in the Indian Act toward a paradigm where we have a healthy relationship with first nations, and where we are able to maintain their sovereignty and jurisdiction over their lands and businesses. The bill is a perfect example of exactly the opposite, because it is done in bad faith and lacks the extensive consultation and the nation-to-nation relationship that would be required in order for us to have a healthy relationship that moves away from the Indian Act.

In terms of wills and succession, this bill puts first nations in an area of uncertainty. In any situation not covered by provincial legislation, in addition to creating potential conflicts, the burden of this uncertainty would be placed on the shoulders of tribal councils while Conservatives continue to impose budget cuts and restrictions on these same councils. Conservatives do not seem to understand that this is the reality of what it is like in a band. There is not enough money or land, yet the bills that keep coming forward do not take into account that these are problems.

We saw the same problem with MRP legislation. It does not make any sense, because there is no extra money or land to go along with that kind of legislation. It is not actually addressing the problem in a meaningful way. The member who spoke before me said that it does not mean anything if we apologize for the residential schools and do not actually take action. Action requires money, respect, consultation, and all the things that go along with treating first nations as equal partners in the federation. We cannot just present private member bills and expect that the problem is going to start being addressed.

I have a constituent who came to speak to me who adamantly wanted me to oppose this bill. His name is Denis Gaspé, from Kanesatake. He wrote the following to me so that I could speak his words in the House today:

Consultation with the people has not been undertaken and any future attempts will be seen as suspect unless an attempt is made to include First Nations groups at the community level who have perennially rejected the notion they are subject to the Indian Act.

He is saying that we cannot change the relationship, as I was saying, in the Indian Act, without consultation. What this bill is purporting to do flies in the face of actual meaningful change.

Monsieur Gaspé's principal objection to the bill is section 10. It raises many problems for him. He stated:

...there is no identification of bylaws as separate from Band Council Resolutions. Manipulation of the publication requirement will bring more unrest.

There are a lot of concerns, and the fact that there are concerns that there has not been consultation means that we cannot move forward with this kind of legislation. We need to set aside the fact that the process we are using right now is not an appropriate one. What is in the bill is also not going to do what it purports to do.

It is long past the time that we address these issues. We need a process that is consultative, that respects UNDRIP, and that brings the nation-to-nation relationship between first nations and Canada into the 21st century.

[Jim Hillyer, Conservative, Lethbridge, AB]

Mr. Speaker, I am honoured and happy to rise today to support the hon. member for Desnethé—Missinippi—Churchill River in his laudable efforts to engage the House in this very timely and historical debate on the Indian Act of 1876. This debate is long overdue.

We proudly and rightly declare that Canada stands for truth, justice, freedom, equality, democracy, independence, and prosperity, but the continued plight of the institutionalized inequality of the first nations people is our great hypocrisy. We cannot bask in our understanding of constitutions and the principles of justice and freedom and celebrate our heritage of liberty and prosperity, and be justified to ignore the continuing plight of those who live in cramped third-world conditions, those who live on our doorsteps, our neighbours.

This plight is not simply the result of past prejudices and abuses. It is not simply a result of insufficient education. There continues to be institutionalized, legally mandated inequality and artificial limitations that shackle first nations.

Whatever the various solutions may be for the various first nations to achieve full sovereignty as nations, we cannot begin to hope for self-determination if the individuals living on reserves are not allowed the same freedoms, which are necessary for self-reliance, that are taken for granted by all other law-abiding Canadians. That is why we must support Bill C-428, an act to amend the Indian Act, which includes the repeal of many of the act's most archaic and oppressive provisions.

The Indian Act of 1876 was derived from the 1857 civilization of Indian tribes act and the culmination of other acts and proclamations before that date. The 1857 legislation was enacted by the British colonial government and declared that Indians who were “sufficiently advanced” education-wise, or “capable of managing his own affairs”, would be enfranchised. That is, they would be given the vote. In essence, the law said that if an Indian man learned to read and was willing to sign a pledge to live as a white, he was allowed to vote, own property and serve on juries, but if he did so, he would lose all his aboriginal rights. Understandably, very few first nations peoples chose to surrender their heritage and ancestry.

The 1867 British North America Act transferred responsibility of Canada's first nations from the British to the new Canadian federal government in Ottawa. At that time Canada had sole authority to negotiate treaties with the Indians and to purchase their land. At the same time, the Canadian government was supposed to shepherding the first nations' best interests. It was and is an inherently flawed principle, open to huge conflicts of interest, and has led to many abuses.

The Indian Act of 1876 incorporated the earlier colonial legislation and essentially made status Indians wards of the Crown, and the Crown was able to completely regulate their lives. Restrictions ranged from rules about how they would elect leaders, how their children would be educated, how their estates would be dealt with after death and how they would engage in commerce. Essentially, it did not allow them to engage in commerce. First nations were allowed virtually no self-governing powers, and it was not just the first nations, individuals had no self-governing powers.

We would hope that we as a nation would have advanced sufficiently to realize the fallacy and futility of those earlier paternalistic documents. I suspect that we do recognize the injustices of the Indian Act, but we have failed to put aside our pride and our politics. We are too worried about who is right and who will get the credit, when we should be committed to what is right and ensuring our fellow countrymen get the quality of life and dignity enjoyed by most Canadians.

Thanks to the hon. member for Desnethé—Missinippi—Churchill River, who has introduced Bill C-428, we are now confronting the more archaic and even absurd aspects of the original legislation, which are still in the Indian Act.

A striking example of those absurdities is the matter of sale of produce from the land farmed by first nations. First nations people are people of the land. They farm, grow grain and produce, have dairy farms, cattle herds, and apple, pear and peach orchards, among many other crops and produce. They have a respect for the earth and the bounty that derives from it. It is the very essence of their ancient and revered culture, yet the Indian Act makes a mockery of that respect and well-earned bounty.

Any other Canadian takes it for granted that we have the right to the fruits of our labour and to sell, barter, or exchange as we see fit. However, to this day, the Minister of Aboriginal Affairs must approve all land transfers. Additionally, if a first nation person sells, barters, exchanges, gives, or otherwise disposes of cattle or other animals; grain or hay, whether wild or cultivated; root crops; or other products from any reserve in Manitoba, Saskatchewan, or Alberta to anyone other than a member of their own band, the superintendent must approve that transaction in writing. This order can be revoked or reinstated to any band at any time by the Minister of Aboriginal Affairs. Furthermore, if a first nation person violates this order, he or she is deemed guilty of an offence. It is shameful to believe that we have allowed an effective embargo on the fruits of honest labour.

As proposed by the member for Desnethé—Missinippi—Churchill River, Bill C-428 would remove this provision, which prohibits first nations from selling their own goods and agricultural products produced on reserve to non-band members. We must repeal this section of the legislation. Doing so would enable first nation communities to become more productive and self-sustaining contributors to their own long-term wealth and that of their neighbouring non-aboriginal communities.

I live next door to the Blood reserve. A lot of people in southern Alberta see the poverty on the reserve and the poverty of many first nation people who have tried to leave the reserve. Some of them wonder why they do not just work their own land. In fact, I hear that all the time. They ask why they do not work their own land, because they have great agricultural land and great oil reserves. They do not realize that these people do not have the legal right to run a business as we have the right to run a business. They do not have the legal right to sell their produce as they see fit, as every other Canadian does.

Self-respect and self-worth derive in large measure from the ability to self-actualize as individuals and as a people. It is the potential to grow and to reach our goals that makes Canada a wondrous land to call home. It is the right time to right the wrongs that are inherent in the Indian Act. We must repeal the provision that forbids the sale of apples and pears by first nations to any and all Canadians. I know that in this right-minded House, it cannot be seen in any other way.

This is just one of the legally entrenched injustices that Bill C-428 would overturn. Besides amending the provision against selling produce, it includes the removal of any mention of and requirement for residential schools. We have apologized for residential schools, but that apology is a little hollow if it continues to be the law of the land in actual form, even though it is not practised. A lot of talk against the bill has been that it does not do enough or that it does not have unanimous support. It has been suggested that we should not even attempt to revise the Indian Act nation by nation, rather we have to wait until every first nation across the country is on board. However, to wait for unanimous support is similar to saying that all of our international affairs, treaties and free trade agreements have to cease until we can get one overarching international trade agreement and treaty that applies to every country in the world.

I would say that this is the time when we must move forward. We cannot wait and sacrifice those who suffer on the altar of perfection and unanimity. We must move forward, and this is a great first step.

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

Mr. Speaker, the member for Desnethé—Missinippi—Churchill River has spoken of his personal experience living under the Indian Act. He stated that he brought forward his private member's bill “to provoke meaningful conversation about the need to repeal this outdated and archaic act and to create a more modern and less objectionable legislative framework in its place”.

I do not doubt that the member had good intentions.

As I have said repeatedly in this chamber, the Indian Act is the embodiment of failed colonial and paternalistic policies. There is no question that we need to find a way to move beyond this outdated and abhorrent legislation. However, there are some fundamental problems with both the process that led to Bill C-428 and with the bill itself.

First, I would like to discuss the process that led to the bill and the unacceptable precedent it establishes in terms of the Crown's duty to consult with first nations on legislation that impacts their inherent and/or treaty rights.

There is no other piece of federal legislation that has more significant impact on the day-to-day lives of first nations than the Indian Act. As such, any process that would successfully move us beyond this legislation has to be first nations led and developed in true partnership with first nations, no matter how well intentioned it is for first nations.

It requires extensive consultation of first nations across the country.

Jody Wilson-Raybould, representing the Assembly of First Nations, spoke to Bill C-428 and explained this to the aboriginal affairs committee:

In terms of fundamental aspects impacting upon first nations from bills such as this that are imposed upon our first nations, the requirement for consultation is extremely high and deep, as they call it. While it may be difficult to speak to every first nation in the country, there is a need to ensure that first nations' voices are heard and that every effort is made to speak with those first nations who hold the rights and will be impacted.

That level of consultation simply has not happened regarding Bill C-428. Further, I think it is important to remember that the duty to consult with first nations on legislative changes like this rests with the Crown and should be conducted on a nation-to-nation basis. This is not a duty that can be delegated to, or assumed by, an individual member of Parliament.

Ironically, the member for Desnethé—Missinippi—Churchill River summarized some of the key practical considerations himself, when he explained to the aboriginal affairs committee that “a private member's bill in the House of Commons does not have the financial or human resources for me to conduct a full-scale consultation..”.

He further stated:

Currently, the federal government has the mandate to do a formal consultation. They have the capacity. They have the budgets. They have the individuals and human resources to do the formal consultation.

Unfortunately, there has been no such consultation by the federal government on the potential impacts of this bill, and the limited review process that parliamentary committees do is no substitute for that consultation.

Parliamentarians discharging our responsibility to review legislation in the House of Commons and the Senate do not equate with or replace the Crown's responsibility to discharge its fiduciary responsibility to conduct appropriate consultations. Rather, it is incumbent on parliamentarians, as part of any responsible legislative review, to determine if the Crown has engaged in such consultations, and if not to reject the bill.

Witness after witness at the committee told us that although they sympathize with the member's intentions, this was an inappropriate way either to amend the Indian Act or to develop a process to move beyond it.

This bill is not the solution.

That brings me to some of the substantive problems with this bill.

While recently the member has focused his comments more on the objective of encouraging a discussion on this issue, let us not forget that the short title of this bill is the “Indian Act amendment and replacement act”. The member told the aboriginal affairs committee that though this bill was trying to “set up a legislative process for first nations on a year-to-year basis, consult with the government and look at more modern, respectful language that properly reflects today's society”, he went on to note, “Currently in the Indian Act there's nothing that requires the federal government to consult with first nations on a year-to-year basis”.

There is nothing in Bill C-428 that requires the federal government to consult with first nations about moving beyond the Indian Act. All Bill C-428 does is to require the minister to report to the aboriginal affairs committee annually on what has been done, a report that could conceivably be one word: “nothing”.

Ms. Raybould of the AFN made it clear to the committee that “Bill C-428 is not the solution”. She said, “We need strong and appropriate governance, not tinkering with the Indian Act, creating perhaps the illusion of progress”. The balance of the bill is just that, tinkering with the Indian Act in a way that has huge unintended consequences.

Two key examples that we managed to deal with at committee were the sections of the bill that would have overhauled wills and estates in the Indian Act, and ill thought-out out changes to section 85.1 of the act. With regard to wills and estates, the original bill would have created absolute chaos and unintended consequences, in terms of everything from Indian customary adoptions to how a common-law spouse would be treated. Thankfully, all members of the committee recognized the potential harm of these changes and voted them down.

The bill would have repealed section 85.1 of the Indian Act, which would have created complications for first nations that wished to maintain their bylaws that prohibit or regulate intoxicants. This clause also had to be amended to prevent the potentially devastating impact of restricting the ability of first nations communities to declare a reservation dry. In trying to fix this mistake, the member created yet further untended impacts that had to be dealt with through report stage amendments.

Examples like these show that trying to tinker with a piece of legislation as complicated as the Indian Act is not something that should be done through the abridged legislative process for private members' business. Who knows what other unintended consequences still remain within the bill?

Michèle Audette, president of the Native Women's Association of Canada, summed it up best when she told the aboriginal affairs committee, “Yes, we need to get rid of the Indian Act, but not this way”.

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

Mr. Speaker, I will begin my speech on the bill to amend the Indian Act by addressing some central themes in the presentations that have allowed me to reach thousands of aboriginal people in the country over the last two years.

At the risk of repeating myself, during the first two years of my term in office, I made it a personal mission to reach as many people as possible in remote communities across the country. That is why I travelled to Saskatchewan, among other places, over the summer.

I abide by the principles of realpolitik and direct democracy—in other words, I will meet with the people, not just a few band council officials, but the general population at large. The same concept also applies to the aboriginal people I have met with over the past few years.

I will now go back to Bill C-428, specifically the study of the amendment and ultimately the measures intended to dump the Indian Act. It should be noted from the outset that this is a private member's bill. Ensuring inclusive measures and seeking the consent of Canadians were not necessarily considerations in the development and drafting of this bill.

This is the kind of information that came up again when, for several months—and I must emphasize this point—we examined this private member's bill in committee. For several months, almost all of the stakeholders and various witnesses who appeared before the committee talked about the lack of consultative and inclusive measures that should take precedence when a member puts forward legislation that significantly changes the relationship between the Canadian government and aboriginal peoples.

However, we already know that the Conservatives are always rather reluctant to propose any inclusive measures and that the concept of consultation tends to be avoided or reduced to a bare minimum. We have already seen this during the current mandate of this majority government. The concept of consultation is diminished, and the government seeks public approval as little as possible.

I have noticed that in the current mandate, when it comes to aboriginal matters, the government will often just consult the nine elected officials, or the elected representatives of a community. Looking at my own experience and my own reality, in the case of Uashat-Maliotenam, there are 3,000 people and nine elected representatives. Inevitably, if the government wants people's approval and if it really wants to introduce measures that are culturally relevant, it should be consulting the entire population.

Of course this will involve some costs and staff will have to be hired to poll and meet with the population. However, this is crucial and will help prevent a public outcry later on, like the one that is building right now and has been reported in the media. We already know that aboriginal communities tend to be rather assertive, that measures have been proposed and that there is an outcry. Real inclusion could mitigate, or at least limit, this public revolt.

Based on that observation, it is important to emphasize that the government's failure to seek the approval of the people involved before proposing these measures is reason enough for the lack of support expressed by a wide variety of Canada's political players.

I mentioned that there is a wide variety of players. We spent at least two months in committee studying this particular private member's bill. A number of stakeholders were called to testify. They spoke about the lack of inclusive measures and the basic lack of support for this reform and for revisiting the Indian Act.

I want to stress that this study took several months. I would ask my colleagues to question the motives an individual MP would have for introducing a bill that amends the Indian Act and, in particular, the government's need and willingness to spend hours looking at a private member's bill, given the significant cost to do so in committee.

Were my colleagues given the same preferential treatment when they introduced private members' bills? I am simply asking the question. In this instance, logic and reasoning would suggest that the Conservatives are trying to use a private member's bill for electioneering and publicity purposes, nothing more. They claim to be focusing on the issue and the Indian Act, citing the fact that their colleague introduced a private member's bill to amend the Indian Act. I would ask Canadians, those listening this morning and my colleagues to pay attention: when the member sponsoring the bill speaks, chances are that he will stick to his notes and will not seem overly comfortable with the subject matter. We should be concerned.

Various stakeholders, including a number of top-notch legal experts and members of the bar across Canada, appeared before the committee and raised this problem, which will very likely arise with regard to the shift in provincial regulations governing succession and gifts, for example. The proposed bill will make significant changes to the Indian Act, thereby causing a shift in the provincial regulations governing succession, that is to say, wills and gifts.

I cannot speak for the rest of Canada, but this is going to cause a major problem for Quebec. It is going to be a real problem because it will cause a shift in the provincial regulations governing succession—regulations that fall under the Civil Code of Quebec. It will also cause problems in matters pertaining to succession and gifts on Indian reserves, which until now have been governed by the Indian Act.

In short, the testimony that was given in committee showed that this bill was ill-advised in fact and in law and that there was a very good chance that a significant amount of money would be spent defending the objectives of this bill in court.

It is understandable for a private member's bill to be flawed and problematic in terms of its adaptation, practical application and implementation. However, in this case, given the effort the government is making and the support it is giving this bill, I would say that it would have been extremely advantageous to spend more time talking to experienced legal experts. I am not trying to knock the government's legal experts, but a more in-depth examination of the practical application and implementation of this bill should have been conducted.

The Indian Act must gradually be changed so that it exerts less control over aboriginal governing bodies. That is inevitable. However, as witnesses in committee told us, the proposed initiative violates the existing principles of self-determination. Too little effort was made in seeking public approval and getting all community members on board. Therein lies the problem, since the modernization of the Indian Act is a very contentious and identity-based issue. As I said, the modernization of this act is inevitable, but it should not be done at any cost and in just any way, particularly not through the highly questionable means of a private member's bill.

I submit this respectfully.

The House resumed from October 25 consideration of Bill C-428, An Act to amend the Indian Act (publication of by-laws) and to provide for its replacement, as reported (with amendments) from the committee, and of the motions in Group No. 1.

[Mark Strahl, Conservative, Parliamentary Secretary to the Minister of Aboriginal Affairs and Northern Development]

Mr. Speaker, it is indeed a pleasure to join in this debate.

It is disappointing, but unfortunately not surprising, to see that the opposition is once again standing up for the status quo when it comes to first nations issues. Our government knows that for too many years, 137 years to be exact, first nations communities have been governed by an outdated and archaic Indian Act that has been holding them back from achieving their full potential.

That is why I am proud to speak today in this House in support of this bill brought forward by my colleague, the member for Desnethé—Missinippi—Churchill River, which seeks to modernize certain outdated sections of the Indian Act that will help to empower first nation communities, take the minister out of the equation, and create the conditions for healthier, more self-sufficient first nations communities.

Our government believes it is time to take action to address and confront the issues contained within the Indian Act.

Our government and our Prime Minister have also been very clear that no grand scheme exists to unilaterally replace the Indian Act. On the contrary, our government remains committed to working with willing first nations to make changes to elements of the Indian Act that are barriers to first nations governance and economic growth.

At the Crown-First Nations Gathering in January 2012, the Prime Minister stated about the Indian Act, “After 136 years, that tree has deep roots, blowing up the stump would just leave a big hole”. Creativity and collaboration, as provided by this bill, would go a long way toward the practical incremental changes that are required.

I want to commend my colleague from Desnethé—Missinippi—Churchill River for his willingness to bring forward this bill. His personal story as a first nations individual growing up under this act is a compelling one, which has led him to take action. His private member's bill is a positive step in the right direction. It proposes concrete action that would provide greater autonomy to first nations, lessen the role of ministerial involvement in the day-to-day lives of first nations citizens, and give back the responsibility for several key areas, such as bylaw-making powers over the first nations where it rightfully belongs.

This is consistent with our government's own approach to providing first nations with practical, incremental and real alternatives to the Indian Act. It would lead to real results for grassroots first nations people and enable them to achieve greater self-sufficiency and prosperity. For example, this past month I was pleased to attend an event in my home province of British Columbia, with the Minister of Aboriginal Affairs and Northern Development, to announce that 18 more first nations, including six from my own riding of Chilliwack—Fraser Canyon, the Cheam, Scowlitz, Soowahlie, Boothroyd, Chawathil and Skuppah, have joined the first nations land management regime.

This regime exempts these first nations from 34 land-related sections of the Indian Act and allows them to develop a land code to manage their own reserve land and resources so they can take greater advantage of economic activities in their communities without having to wade through bureaucratic red tape.

As my hon. colleague has already noted, several technical improvements were made to the bill at the committee stage to address some of the concerns that first nations have raised and to ensure that first nations are best able to take advantage of these modernized provisions in the Indian Act. For example, section 85.1 of the Indian Act has to do with the ability of first nations to pass their own bylaws related to intoxicants, in other words to create a dry reserve. That was an amendment that was made at committee to ensure that first nations communities would maintain their right to control alcohol on their reserves.

In addition, the committee made another change that would provide first nations with greater flexibility in the publication of bylaws. They would be able to choose the manner in which they inform their community members about changes to their bylaws, either through a first nation's Internet site, the First Nations Gazette or a newspaper that has general circulation on the band lands.

Also, the committee heard from a number of witnesses about the complexity of moving forward with clause 7. That had to do with the administration of wills and estates and the need to study this further or risk creating an even more confusing regime than already exists. As a result, the committee agreed to delete this clause during clause-by-clause consideration.

However, there remain two coordinating amendments that must be made to clauses 3 and 4 of the proposed bill in order to move it forward. These motions seek to correct an oversight during clause-by-clause consideration of the bill at committee, following the removal of the wills and estates section of the bill. To not make these amendments would create unnecessary uncertainty and confusion for first nations.

Instead of taking the minister out of the equation, not making these coordinating amendments to clauses 3 and 4 would extend the minister's authority over wills and estates to all those living on designated lands and to all status Indians. This is clearly not the intention of my hon. colleague's bill.

These are all changes that are consistent with the direction that our government has been taking for the past six years. It is one that is focused on bringing forward initiatives that would unlock this economic development potential by removing certain barriers to first nation governance, which currently exist under the Indian Act. Ultimately, I believe that the bill is yet another example of the concrete action our government is taking to empower first nation communities to manage their own affairs and to encourage stronger, more accountable and prosperous first nation communities, where first nations' citizens have access to the same rights as all other Canadians.

Our government is proud to support Bill C-428. I urge all members of the House to help us swiftly pass it into law. First nations have waited long enough for changes to the Indian Act.

[Ted Hsu, Liberal, Kingston and the Islands, ON]

Mr. Speaker, as the member for Kingston and the Islands, I am the successor to former Speaker Milliken. It is an interesting coincidence, and perhaps not a coincidence, that he remains so present. I saw him in my riding yesterday. I saw him in the lobby for lunch, and I had just heard about a precedent from one of his rulings. I thought I would take advantage at this point to remind the House of the service Speaker Milliken rendered to this body.

It is a pleasure to rise to speak to Bill C-428. I would like to begin by saying that I believe that the decision of the member for Desnethé—Missinippi—Churchill River to bring forward this private member's bill was rooted in good intentions.

There is no question that the Indian Act is the embodiment of failed colonial and paternalistic policies, which have denied first nations their rights and their fair share of resources.

It has fostered mistrust and has created systemic barriers to the self-determination and success of first nations. However, the elimination of these barriers requires the Government of Canada to engage directly with first nations, on a nation-to-nation basis, and to establish a formal process to replace the Indian Act with new agreements.

This private member's bill, no matter how well-intentioned, is not the way forward. This is what witness after witness made crystal clear during the committee hearings. Ms. Jody Wilson-Raybould, representing the Assembly of First Nations at the aboriginal affairs committee, stated:

...I commend MP Clarke's leadership in bringing forward this bill to further stimulate the conversation about what actually needs to be done to move forward. Unfortunately, Bill C-428 is not the solution. We need strong and appropriate governance, not tinkering with the Indian Act, creating perhaps the illusion of progress.

Michèle Audette, President of the Native Women's Association of Canada, stated at committee:

Yes, we need to get rid of the Indian Act, but not this way, not the way it's proposed.

She went on to say:

I urge you, members of Parliament, to withdraw or to abandon this legislation and to please make sure that we will be part of such changes, as community members, as mothers, and for the rest of women across Canada.

During the Crown-first nations gathering, the Prime Minister said that his government would not repeal or unilaterally rewrite the Indian Act. However, in effect, that is exactly what this private member's bill, with the wholehearted support of the government, purports to do.

The member for Desnethé—Missinippi—Churchill River is proposing to amend numerous sections of the Indian Act without consulting in any meaningful way with first nations across Canada about the possible impacts of those changes or whether these changes reflect the priorities of first nations.

The member for Desnethé—Missinippi—Churchill River himself, when speaking to the committee, conceded that he, as an individual member of Parliament, has neither the financial nor human capacity to do a proper consultation. He said:

...a private member's bill in the House of Commons does not have the financial or human resources for me to conduct a full-scale consultation....

He went on later to say:

Currently, the federal government has the mandate to do a formal consultation. They have the capacity. They have the budgets. They have the individuals and human resources to do the formal consultation.

Those are the words of the member for Desnethé—Missinippi—Churchill River.

As was made clear by the Federation of Saskatchewan Indian Nations, FSIN, the member for Desnethé—Missinippi—Churchill River even failed to consult substantively with first nations in his own province before he tabled his bill.

In a public statement last fall, the then FSIN Interim Chief, Bobby Cameron, commented on this legislation saying:

There are too many unanswered questions. The FSIN demands meaningful consultation and accommodation before anything is changed or replaced in the Indian Act.

He went on to state:

The private member's bill is a red herring used to distract from the real issues the Conservative government is not addressing, such as comparable education funding, housing, economic development and health care. Appealing and amending the Indian Act will not address these outstanding Treaty issues.

The result of this complete lack of prior consultation was a profoundly flawed piece of legislation riddled with unintended consequences. Even though the government members enthusiastically supported the bill at second reading, they conceded at committee that it required major work.

For instance, a significant portion of the bill was directed at amending portions of the Indian Act that deal with wills and estates. After extensive expert testimony at committee, it became clear that there were numerous unintended consequences, regarding everything from Indian customary adoptions to how a common-law spouse would be treated. With the agreement of the Conservative majority on the committee, the entire portion of the bill dealing with wills and estates was voted down.

There were also serious problems with the repeal of section 85.1 of the Indian Act, which would have created complications for first nations that wish to maintain bylaws prohibiting or regulating intoxicants. This clause also had to be amended to prevent the potentially devastating impact of restricting first nations communities' ability to declare reserves “dry”.

There were many other amendments made at committee to try to limit the potential unintended negative impacts of the original bill, but questions still remain about what still-unknown impacts this tinkering would have. For instance, when the government members and the member for Desnethé—Missinippi—Churchill River tried to fix some of the unintended consequences of the legislation during clause-by-clause at committee, they unintentionally created further problems.

The bill, as presented now, would make various sections of the Indian Act applicable to designated lands in a way that the member for Desnethé—Missinippi—Churchill River never intended. I understand this error is the subject of report stage amendments, but this is simply further evidence that trying to tinker in this way with such a profoundly complicated and important piece of legislation as the Indian Act is reckless and sets a very dangerous precedent.

I urge members to heed the warnings of first nations leaders that, regardless of any positive intentions behind this private member's bill, this is not the way to move beyond the outdated and colonial Indian Act.

The House resumed consideration of Bill C-428, An Act to amend the Indian Act (publication of by-laws) and to provide for its replacement, as reported (with amendments) from the committee.

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

Mr. Speaker, I want to thank you for the opportunity to pose a question to the mover of the bill.

I am, of course, rising to speak to Bill C-428.

I want to start with a quote from volume 1 of the report of the Royal Commission on Aboriginal Peoples with respect to recommending a commitment to ethical principles of relations:

To begin the process, the federal, provincial and territorial governments, on behalf of the people of Canada, and national Aboriginal organizations, on behalf of the Aboriginal peoples of Canada, commit themselves to building a renewed relationship based on the principles of mutual recognition, mutual respect, sharing and mutual responsibility; these principles to form the ethical basis of relations between Aboriginal and non-Aboriginal societies in the future and to be enshrined in a new Royal Proclamation and its companion legislation

This report came forward in 1996 and has largely not been implemented.

I read that piece around ethical relations because it would seem to me that those principles of mutual respect and recognition are important when we reform any legislation that has an impact on first nations.

I want to talk a little bit about the Indian Act itself. As the member rightly pointed out, the Indian Act is a paternalistic piece of legislation.

I want to read a couple of pieces from a document, “Like an Ill-Fitting Boot: Government, Governance and Management Systems in the Contemporary Indian Act”.

It says:

Today the Indian Act is the repository of the struggle between Indian peoples and colonial and later Canadian policy-makers for control of Indian peoples' destiny within Canada. The marks of that struggle can be seen in almost every one of its provisions.

It goes on to outline a couple of major problems with the Indian Act. It says:

The Indian Act appears to be a legislative fossil. It reflects administrative and organizational practices that were characteristic of public institutions in the early and mid-twentieth century, but that have been modified and superseded in other governments. The Act relies upon regulation, top-down authorities, fiscal control, and enforcement. Today most Canadian governments and other organizations rely upon collegial decision-making and policy development, policy research, human resource development, management accounting systems, and citizen engagement. The Indian Act does not mention these things, and the basic provisions do not leave much room for them.

The Indian Act has a powerful impact on the quality of democracy in Band governments. Having the force of law and backed by financial power, the Act mandates one particular set of institutions and practices to the exclusion of others. In this way it affects the abilities of First Nations to shape more accountable and democratic governments.

It also says:

Few people are satisfied with the Indian Act, but no one will deny its importance.

This is why it is important to have a very respectful, thoughtful, collaborative process in order to replace the Indian Act.

The author went on to say:

For the individuals to whom it applies, the Act is a basic and specific constitutional document. It defines their rights and entitlements, their citizenship and their relationship to the federal and provincial governments. It provides the mechanisms that include or exclude them from membership in a Band. For First Nations, it creates the framework within which both public and First Nations officials and political leaders must work, profoundly shaping the nations’ political and economic life.

That in itself has been a long-standing argument about why governments of various political stripes should not be doing things piecemeal and taking apart the Indian Act. It has major repercussions and implications for first nations' relationships both among the nations themselves and with the government.

Finally, the author said:

It is obvious that the original Indian Act was not created with the self-determination of First Nations communities in mind. Its original purpose was to permit federal officials to control First Nations and to enable social engineering–the coercive transformation of Indigenous societies and governments to bring them into line with the purposes and visions of the Canadian government.

With that kind of background, it becomes absolutely critical when there are proposed changes to the Indian Act that there be a process put in place which is co-created with first nations. On that point, I want to refer to article 19 in the United Nations Declaration on the Rights of Indigenous Peoples.

Article 19 says:

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.

In that context, with all due respect to the member, he is not the Crown. He is an individual in the House. He does not have the authority or the resources to implement a consultation process. He may well have talked to first nations and other organizations, but that does not meet the test of duty to consult.

With regard to the bill, in April, the committee received a document from Paul Chartrand Consulting. In that document, Mr. Chartrand said:

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....

In the event that the government struggles with what appropriate consultation would look like, I would like to refer it to its own ministerial representative Wendy Grant-John's report on matrimonial real property. She laid out a process for what consultation could look like. She said:

The Department should develop, as soon as possible, specific policies and procedures relating to consultation in order to ensure that future consultation activities can identify and discharge any legal duty to consult while also fulfilling objectives of good governance and public policy by:

1) Ensuring First Nations have relevant information to the issues for decision in a timely manner;

2) Providing an opportunity for First Nations to express their concerns and views on potential impacts of the legislative proposal and issues relating to the existence of a duty to consult;

3) Listening to, analyzing and seriously considering the representations and concerns of First Nations in the context of relevant legal and policy principles including their relationship to other constitutional and human rights principles;

4) Ensuring proper analyses by the Department of Justice of section 35 issues relating to any proposed legislative initiative are thoroughly canvassed before, during and after consultations;

5) Seriously considering proposals for mitigating potentially negative impacts on aboriginal and treaty rights or other rights and interests of First Nations and making necessary accommodations by changing the government’s proposal

6) Establishing, in consultation with First Nations, a protocol for the development of legislative proposals.

We can see time and time again where legislation is brought forward in the House that does not meet those six criteria, very ably outlined by Wendy Grant-John for the then-minister of Aboriginal Affairs.

There are international conventions around proposals for what consultations should look like in a domestic setting. This is from Convention No. 169 from the International Labour Organization, also known as the ILO. They have a specific section on consultation and participation. It said:

The spirit of consultation and participation constitutes the cornerstone of Convention No. 169 on which all its provisions are based. The Convention requires that indigenous and tribal peoples are consulted on issues that affect them. It also requires that these peoples are able to engage in free, prior and informed participation in policy and development processes that affect them.

The principles of consultation and participation in Convention No. 169 relate not only to specific development projects, but also to broader questions of governance, and the participation of indigenous and tribal peoples in public life.

In Article 6, the Convention provides a guideline as to how consultation with indigenous and tribal peoples should be conducted:

Consultation with indigenous peoples should be undertaken through appropriate procedures, in good faith, and through the representative institutions of these peoples;

The peoples involved should have the opportunity to participate freely at all levels in the formulation, implementation and evaluation of measures and programmes that affect them directly;

Another important component of the concept of consultation is that of representativity. If an appropriate consultation process is not developed with the indigenous and tribal institutions or organizations that are truly representative of the peoples in question, then the resulting consultations would not comply with the requirements of the Convention.

In conclusion, with respect to the member, the process that he has undertaken does not fulfill either domestic or international parameters for duty to consult. I would argue that all members in the House should vote against the bill. The Indian Act changes have far-reaching effects and they must be undertaken in a responsible, respectful manner.

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

Mr. Speaker, all the proposed changes within this bill have been derived from direct feedback from first nations members.

As a first nation citizen living under the Indian Act and as a former RCMP officer enforcing the act, I know first-hand the racist and debilitating nature of the laws contained within it.

Initially, when I first brought forward this legislation, not everyone fully understood the intention behind this bill. However, when people actually saw the changes that I am proposing, these misconceptions were swiftly erased.

Despite only having limited resources available to me as a private member, I am delighted to have had the opportunity to discuss the finer points of the bill with many prominent members, both leaders and community members, of first nations across Canada.

The fact remains that everyone agrees the Indian Act is an archaic and fundamentally bigoted piece of legislation that governs the day-to-day lives of first nations and that it must go. No other Canadian is subject to such an offensive piece of legislation that interferes in their day-to-day lives.

Any concerns that this bill is an attempt to totally eliminate the Indian Act and leave nothing in its stead have long since been laid to rest. However, I believe that the practical and incremental changes proposed in the bill can lead to further meaningful conversation about how the Indian Act could be dismantled and replaced.

It is important to highlight that Bill C-428 includes a mandate to ensure ongoing consultations between first nations and the crown, working together to ultimately repeal and replace the entire Indian Act. Though this piece of legislation does not represent a complete replacement of the Indian Act, I believe it is the first step of meaningful change.

The fact that my private member's bill has generated so much attention is indicative of the ongoing sensitivity of the issues which surround the Indian Act.

During the course of the formulation of this private member's bill I wrote on six separate occasions to more than 600 first nations communities across Canada asking them to share information about my bill with their membership and to provide me with their feedback. The input generated by these letters has been integral to the continuing development of my private member's bill.

Additionally, I have had the pleasure of holding discussions with numerous first nations leaders and activist organizations and groups about the nature of the Indian Act and the changes I am proposing.

It has been my honour to hold information sessions with first nations bands and major organizations in Saskatchewan, Alberta, British Columbia, Manitoba, Ontario, and Quebec. I have given presentations to student groups, aboriginal professionals, and interested non-aboriginals on the nature of Bill C-428. A YouTube video explaining the bill has been made available to all members of the public. I did two national tele town halls with first nations on this legislation just last spring. Since August 2012 I have been advertising widely on aboriginal radio across the west and also in my riding asking for input on my bill. My Parliament of Canada website hosts a section devoted to the bill and contains a survey seeking input.

All of those actions and initiatives provide a wealth of information sharing, with knowledge and appreciation of viewpoints travelling in both directions.

I am proud to say that I have the support of many first nations members and bands within and outside of my own riding.

I would like to take this opportunity to briefly summarize some areas of this legislation.

The Indian Act has created barriers between first nations and the rest of Canada. These barriers are economic, cultural and societal.

Our government is committed to supporting first nations and to creating the conditions for them to become healthier and more self-sufficient while breaking down these barriers.

One of my goals in the creation of this bill was to remove unused archaic, irrelevant, and offensive sections of the Indian Act, for instance, the section requiring first nations to gain the approval of the minister before enacting bylaws on their own first nations lands.

Bill C-428 would remove this requirement, allowing first nations councils to create and publish their own laws, in much the same way and manner that any other local government is allowed to enact a local law. No other community or level of government in Canada requires the permission of the minister to enact such laws.

These sections are part of a complex legal underbrush that makes the Indian Act an irrelevant and antiquated piece of legislation. Although incremental, the changes I am proposing are concrete actions which would create enduring changes in the lives of first nations citizens. Bill C-428 would also remove references to residential schools from the Indian Act. As a grandson of two residential school survivors, I have seen first-hand the devastating effects that residential schools have had on our people. There is no place in Canadian law in the year 2013 for residential schools. I cannot wait for the references of this shameful period of our nation's history to be erased from the books.

This bill would also ensure consultation on the eventual repeal and replacement of the Indian Act with a more modern and respectful document that would treat first nations governments with mutual respect. By legislating the requirement of the annual report from the minister on the progress made toward repealing and replacing the Indian Act, we would ensure the process is kept on track. This process acknowledges that parts of the Indian Act as it stands have served and can continue to serve well for first nations communities.

To quote the Prime Minister:

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.

That is what is at the heart of this private member's bill. We, as parliamentarians and Canadians, simply need to have the courage and political will to take these first incremental steps toward a better relationship between our federal government and Canada's first nations.

As my colleagues should be aware, a number of further improvements to my private member's bill were made at the committee stage. For example, due to the change in the sections of the Indian Act dealing with bylaws, we are adjusting the wording of the bill to ensure that first nations communities maintain their right to control alcohol on reserve. In addition, we have made another change that would provide flexibility in the publication of bylaws so that first nations could choose the manner in which they wish to inform their membership and visitors to their communities of the laws they have passed.

In conclusion, I can find no one who would support the continuation of the failed colonial, and fundamentally racist, Indian Act that served as a template for South African apartheid. Apartheid was abolished in South Africa in 1994, and yet the Indian Act, the parent legislation, is still part of Canadian law in 2013.

Bill C-428 would kick-start the process by which we could bring our government's relationship with Canada's first nations out of the 19th century and into the modern era. I would be proud to have a hand in the creation of a better world for first nations through the repeal of this bigoted Indian Act and its replacement with a more modern and respectful document.

The House resumed consideration of Bill C-428, An Act to amend the Indian Act (publication of by-laws) and to provide for its replacement, as reported (with amendments) from the committee.

Motions in amendment

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

moved:

Motion No. 2

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”

Motion No. 3

That Bill C-428, in clause 4, be amended by replacing line 20 on page 2 with the following:

“Minister otherwise orders, sections 42 to 52”

Mr. Speaker, developing, introducing and refining Bill C-428, an act to amend the Indian Act and to provide for its replacement, has been a tremendous experience. I thank all of those, colleagues here in the House and first nations across the country, whose input has helped to shape the bill we have before us today.

As I have stated on several occasions already in the House, the rationale behind my introduction of the bill is the generations of first nations' dissatisfaction with the Indian Act, something that I, as a first nations man, know first-hand.

The Indian Act is a paternalistic document that portrays outdated Canadian values and represents a sad and ignorant period in Canadian history.

I first introduced C-428, an act to amend the Indian Act and to provide for its replacement, in order to provoke meaningful conversation about the need to repeal this outdated and archaic act and to create a more modern and less objectionable legislative framework in its place. I think I have done that.

In December 2011, this was not a topic--

Speaker's Ruling

[The Acting Speaker, Conservative, Bruce Stanton]

There are three motions in amendment standing on the notice paper for the report stage of Bill C-428. Motions Nos. 1 to 3 will be grouped for debate and voted upon according to the voting pattern available at the table.

I will now put Motions Nos. 1 to 3 to the House.

The House proceeded to the consideration of Bill C-428, An Act to amend the Indian Act (publication of by-laws) and to provide for its replacement, as reported (with amendments) from the committee.

First Nations Elections Act

[Blake Richards, Conservative, Wild Rose, AB]

Mr. Speaker, in an ideal world, there would be no need for debate on this bill. The outdated and paternalistic elements of the Indian Act governing first nations elections would no longer have any effect, because first nations would be universally self-governing. That is the goal we are all working toward.

Unfortunately, however, this is not yet the case for the majority of first nations across the country. Some communities on their way to self-government have employed different strategies, such as adopting community election codes that help them get around holding their elections under the Indian Act, but not every community has the capacity to take that on either. Others have chosen to focus their energies and resources on the many other high-priority issues that they face.

We want to meet first nations like these halfway, by providing an alternative to the current Indian Act election system. It is an out-of-date system that has remained largely unchanged since the 1950s. It is riddled with weaknesses and problems that destabilize first nations governments. It is a system that is not only frustrating but also, in many cases, undemocratic.

It is little wonder that so many first nations have demanded another option in addition to the systems currently on offer. That is exactly what Bill S-6 would provide. It would provide another way for first nations to hold elections that is outside of the outdated election system set out in the Indian Act.

Before exploring the many benefits of this legislation, it would be helpful if I first explained a little bit about the various electoral systems currently available to first nations.

Different communities exercise different approaches to elections. At the moment, 238 first nations hold their elections under the Indian Act system. This represents about 40% of all communities. The many problems, and even abuses, under this system have been well documented in numerous reports and reinforced by various speakers during this debate.

The majority, 343 first nations, or 55% of the total across Canada, select their leadership under a community-based system. Most of these first nations develop their own community election codes to elect their leaders. For many, this system offers the essential elements of good governance: open and transparent elections and effective mechanisms for redress when necessary.

Unfortunately, that is not always the case. A small percentage of first nations with community election codes experience recurring disputes, some of which have led to breakdowns in governance, the imposition of third party management and lengthy and costly court actions between community members.

These disputes are usually based on a lack of community consensus on the actual election rules and procedures, exacerbated by the absence of a viable redress mechanism. There have been occasions when two separate election processes have been held in parallel in the same community, with those elected in each case claiming to be the legitimate and duly elected leaders. Needless to say, all of this negatively impacts community well-being and discourages economic development.

The remaining 36 first nations, or about 5%, have leadership election systems based on their community constitutions under self-government arrangements. As I mentioned earlier, this is the ultimate goal to which most first nations aspire.

As I also noted, many communities still caught with the Indian Act system may not be ready to take on self-government or even go so far as to develop community election codes. However, that does not diminish their desire to have an alternative: a fairer, more transparent and more accountable way of conducting elections on reserve.

I want to be clear that I am not talking about every first nation in the country. There is no question that there are some that seem satisfied with the status quo, while others may accept nothing less than self-government. I can assure the House that Bill S-6 would provide a robust election system for those who may choose it.

John Paul, executive director of the Atlantic Policy Congress of First Nations Chiefs, testified on these issues before the Standing Senate Committee on Aboriginal Peoples.

This legislation is precisely what many communities want. People in first nations communities all across the country have told us that they want change that leads to self-government, but they want it to be built on a solid foundation. They want certainty and stability, which they do not now have.

What many of these first nations are looking for is what Jody Wilson-Raybould of the Assembly of First Nations described in her appearance before the Standing Senate Committee on Aboriginal Peoples when it examined Bill S-6. She said, “...“stepping stone” legislation, such as Bill S-6...fits into and supports a vision of moving along the continuum of governance....” That is who this legislation is for. At their request, our government has been working in collaboration with first nations partners to develop an optional legislative framework for the election of band councils that covers this middle ground.

We have followed the lead of our first nations partners, the Atlantic Policy Congress of First Nations Chiefs and the Assembly of Manitoba Chiefs. They have done the necessary research and conducted consultations in their own regions as well as across the country to come up with the viable new option outlined in Bill S-6. Bill S-6 would provide an optional electoral system that would ensure transparent and accountable governments, while providing first nations with the flexibility to choose the elections system that best suits them.

Our government simply wants to create the conditions for strong, stable and effective first nations governments that are transparent and accountable to their membership. A free and fair leadership selection process promotes accountability of leaders back to their band members rather than to the Government of Canada. It is a cornerstone of greater self-government and better outcomes. Bill S-6 is a concrete step forward in that direction. It is not meant to be a one-size-fits-all remedy for all that is wrong in the existing election system under the Indian Act.

The legislation would help those first nations that choose to opt in to overcome the numerous limitations of the Indian Act election system. It is designed to address the several weaknesses identified in the AFN study on election reform in 2008, the Senate committee's 2009 study and the thorough work of the APC and the AMC, problems that are holding back too many first nations communities at a great cost to their economies and to the well-being of their citizens.

Ideally, we would do away with the outdated Indian Act altogether. However, it cannot be replaced overnight. That would only create more problems than it solves. As the Prime Minister observed at the historic gathering, after 136 years that tree has deep roots. Blowing up the stump would just leave a big hole. We certainly do not want to do more harm than good.

The alternative is to modernize the most damaging provisions of the Indian Act. This could be achieved not by updating the Indian Act itself but by equipping first nations with new tools and mechanisms to manage their affairs. That is how we could creation conditions that enable sustainable and successful first nations. As they build capacity and create the certainty necessary for investments they can unlock the untapped wealth on their lands, creating employment and improving social services for their citizens.

That is exactly what our government has been doing. We are taking important incremental steps forward to achieve the results first nations desire and that our government is determined to deliver. For example, we support Bill C-428, the Indian Act amendment and replacement act. It proposes a series of modifications to the Indian Act, some of which eliminate paternalistic sections such as those dealing with residential schools and bylaws. Other parts of the bill propose amendments that help contribute to healthier, more self-sufficient first nations communities. They dovetail with aspects of Bill S-6, which reduce ministerial involvement in community businesses. Bill C-428 would provide greater accountability and responsibility of first nations governments to their members and improve their capacity to meet the needs of their communities. This would be achieved by diminishing the role played by the Minister of Aboriginal Affairs and Northern Development in the day-to-day lives of first nations.

The numerous proposed amendments to the Indian Act contained in Bill C-428 are our government's larger objective of providing first nations with the tools, resources and authorities they need to eventually transition completely out of the Indian Act.

This same objective and philosophy are at play in the First Nations Land Management Act. Prior to the enactment of the First Nations Land Management Act, first nations were hamstrung by the cumbersome land management provisions of the Indian Act. Instead of moving at the speed of business, the Indian Act slows the system to the pace of internal approval processes within the federal government. Needless to say, this often stands in the way of time-sensitive economic opportunities. Both first nations and their private sector partners complained loudly about the challenges of delayed decision-making.

The first nations land management regime enables first nations to opt out of the land resource and environmental management sections of the Indian Act. It removes many of the impediments of the outdated Indian Act, allowing for the creation of greater economic development opportunities and allowing communities to seize business development opportunities.

The legislation gives first nations that opt into the program the freedom to manage reserve lands under their own land codes. They can also negotiate contracts and enter into joint ventures with other communities, governments and with the private sector without ministerial approval.

Chief Ann Louie of the Williams Lake Indian Band in B.C., one of the first nations that opted in to the First Nations Land Management Act, is on record as saying, “It represents almost freedom, getting into self-governance away from the Indian Act so that we can manage our own lands so that our people can become prosperous and develop economically.” Her enthusiasm is backed by studies of the regime by KPMG. It has concluded that in addition to increased job creation on reserves in communities that utilize it, the First Nations Land Management Act option is proving to be a practical step toward self-government.

The First Nations Fiscal and Statistical Management Act is another example of legislation that diminishes the minister's role for communities seeking greater control over their financial affairs. The legislation provides an alternative avenue to the Indian Act for first nations determined to achieve self-sufficiency. It allows first nations to develop a sophisticated, transparent and responsive property tax system on reserve. It also creates a securitized first nations bond regime that gives them access to municipal-style financing to invest in infrastructure on reserve. And it supports first nations' capacity in financial management, all of which support economic development.

Communities that choose to utilize its provisions can draw on the services and supports of the first nations institutions created under the act. As they do, outside investors can proceed with confidence and first nations can negotiate from positions of strength because the act provides the type of certainty that is lacking under the Indian Act.

The improvements contained in the acts I have talked about today have come about at the request of first nations that want greater control over their communities' day-to-day activities. We have been listening, and we are acting.

Bill S-6 is yet another piece to join the family of legislation to support first nations by offering a legislative alternative to first nations elections that would not involve the minister. It would provide the foundations for more stable and effective first nations governments through longer terms of office. With four years between elections, first nations governments would be able to work with potential partners for longer term development opportunities that would bring prosperity.

Bill S-6 fits with what other legislative initiatives have done, which is to provide alternatives to the Indian Act for willing first nations on important subject matters. These acts lay the groundwork and provide the frameworks for first nations to be successful, and successful first nations means a better quality of life for their members.

Bill S-6 is opt-in legislation. First nations could choose to adopt it or not to adopt it as they see fit.

From Bill S-6 to Bill C-428, these examples of modern legislation that empower first nations send a strong signal. We are focusing the federal role to that of an enabler rather than that of an impediment to progress. Our government is committed to putting an end to the historic isolation of first nation communities that has marginalized these members of our society for far too long.

Step-by-step, bill-by-bill, we are responding to first nations calls for greater decision-making powers and less ministerial involvement. In the process, we are creating the conditions for strong, effective and accountable governments for first nation communities. We are providing first nations with the tools they need to become more self-sufficient as they work their way toward self-government.

It is now up to us, as parliamentarians, to take the next step forward on this path of steady progress. We must support first nations, which are demanding change. We are calling for all-party support to unleash the tremendous potential of Bill S-6, the latest in a series of legislative reforms that remove the shackles of the Indian Act for those first nations that opt to take advantage of its new authorities.

I am asking all members to join us in our efforts to help first nation communities achieve their goals, for the benefit of their residents and our country as a whole.

[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 Development

[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.

[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—

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[Chief Roland Twinn]

I'm going to speak more on the process as the question. The bill contemplates that the minister will make reports to the House of Commons and will consult with those who are willing and with “organizations”. Then I go back to the point that the organizations are not the proper authorities to be dealing with legislation that affects the treaty rights of the first nations peoples.

The individual members of the first nations hold the treaty rights, not a government-funded AFN. That in itself is kind of problematic, because if the AFN cannot play ball with the Government of Canada, it does not get funded and it does not exist. For us, that's a fundamental flaw right off the bat.

As far as our nation is concerned, Sawridge First Nation has already sent in our band council resolution, our BCR, over a decade ago, stating that the AFN does not represent our interests. How can one organization represent the interests of 612 first nations recognized in Canada? We are all at different states. The Sawridge First Nation receives less than 10% of its funding from the Governments of Canada and Alberta. Ours is own-source funding. We understand economic development, but economic development is not an answer. It's a tool that can be used to come to the answers.

I wonder if the committee has contemplated section 52 of the Canadian Constitution. Section 52 states that anything Parliament does that conflicts with our rights is “invalid”, so right off the top, is Bill C-428 invalid? It's going to affect our legislative powers at the Sawridge First Nation, which we have exercised. We have our matrimonial properties act. We have our governance act. We have our financial accountability act. These acts were written by the people and passed by the people, for which I hold the funds, and I spend their funds on their behalf. How much more transparent can I be?

My salary is set by the people, not by chief and council. I've taken that off the plate as the Indian Act contemplates, so I cannot pay myself half a million dollars and be at a Prime Minister's level of pay. My pay is set by the members themselves. Nothing could be more democratic.

Is it worth the legal costs of challenging this law in the courts of Canada on its constitutionality? Is it really worth the Canadian taxpayers' dollars to go through all that just to have it thrown out in court, which I believe would not be a hard task for first nations to do? It might even get thrown out on a judicial review, but again, there would be taxpayers' dollars getting spent on something that should not have come forward.

The Indian Act is not the problem. The problem is the relationship. If we had a healthy, respectful relationship between our nation and the Government of Canada, I wouldn't have to be here today. We would be under self-government legislation. We would be looking after ourselves, which is all that we all want to do. Every human in this world wants to control their destiny. That's all we want to do as first nations: take control of that destiny.

We want to get out of this paternalistic legislation called the Indian Act, which was not spoken of at the time of the signing of Treaty No. 8 in 1899. Nobody said to any of the original signatories there, “Oh, by the way, by signing this treaty of sharing, you'll be subjugated to the Indian Act, in which the minister in Ottawa is going to be controlling your destiny, and we will be taking your children away and putting them in residential schools”. That was a double whammy for our nation, because we suffered a flu epidemic in the early 1900s in which a majority of the adults perished. There were far more children than adults and they were all taken off to residential school, and you wonder why there's a loss of culture, a loss of language? That needs to be healed.

But in a true government-to-government relationship, we should be looking at putting together some resources for those who want to.... Look at the investment in the future, as I said earlier. That's one of the fundamental problems that I see with the process. You're ignoring the duly elected officials. You're not allowing us to have a say in what changes these Indian Act provisions will have. Is there a resource to be put in place for when you take away some of these provisions, which, in my example, would allow a member—or maybe it would not allow it, but it would not disallow it—to cut down all the trees and sell them for his own personal profit?

Should there not be something, some transitional phase for some of these, through which we can have our own legislation put in place? Do I need to have an agreement with the RCMP or maybe the Lakeshore Regional Police Service, which is funded by the federal and the provincial government, for the five first nations along the lakeshore to understand our bylaws and be given the authority to actually enforce them? Is there a proper court in which these laws can be heard?

Where are our institutions of governance which we need to control our destiny and to be self-governing? I've been through the Federal Court of Canada. It is not friendly to first nations. There is a fundamental flaw if we go to that court, especially if we're going against the federal government.

Who appoints judges—the first nation chiefs? What are judges sworn to protect? It's the constitution and the laws of Canada. So why would they ever rule in favour of a first nation?

These are the things we need to strive towards.

Thank you.

[Chief Roland Twinn]

Thank you.

I'll be as brief as possible. Forgive me if I'm going to switch hats as I go along.

First, I have a message from the executive board of the Treaty 8 chiefs of Alberta. We are fundamentally opposed to Bill C-428 for reasons of process. We are first nations with a treaty. A treaty is an agreement signed between sovereign nations and is the prima facie evidence that we have sovereignty. It is impractical or insulting to have changes made to an Indian Act that affects us, without proper consultation with the holders of the rights.

As far as the specifics of the question are concerned about the removal of these archaic, old-type provisions, yes, some of them should be removed. However, removing some of them would leave a vacuum. An example in our reserve is that if some of these provisions were removed, the next day there would be no ministerial approval for somebody to log the reserve. If one of the band members were to decide to log off the reserve and sell the logs and keep it to themselves, what's to stop them?

I've heard that you can pass a bylaw. What use is it to a first nation to pass bylaws, when there is no enforcement agency for those bylaws? You can give the RCMP your bylaws, in which the officer has the authority to use discretion as to whether or not he's going to enforce them. The RCMP have no connection to a chief and council, and as part of a justice system are not influenced by the chief and council. So again, what is the use of passing a bylaw?

Even the publication of bylaws in the First Nations Gazette—I've never even heard of it. If I ever wanted to pass a bylaw that I wanted to hide from my members, that's where I would publish it. Not one of them has probably ever heard of or even seen one. That in itself is a strange one, for my part.

Taking off the hat of grand chief and throwing on the hat of chief of the Sawridge First Nation, I say we're done with bylaws, as far as we are concerned. We understand section 35 of the Canadian Constitution Act, 1982. We have the inherent right to govern ourselves and we have exercised that right. As a matter of what we've done with that right, we have spent six years developing our constitution for our first nation. It was passed on August 24, 2009. Out of it has come our own laws. I am a four-year term chief—not under the Indian Act but under the Sawridge election act, as born out of our constitution, which has been recognized by the Government of Canada by way of an order in council removing our first nation from the election sections of the Indian Act.

Another issue is that even with some of these changes and the making of bylaws, there is no proper consultation, in my view, when you read what the act actually says. The preamble talks about consultation with first nations, but once you get past that it says the minister will consult with interested parties and organizations. I have a problem with that.

Our people seem to be the most represented people in this country, yet we're not heard. I'm the official, elected chief of our first nation. Our people are represented by me, two council members, AFN, CAP—the Congress of Aboriginal Peoples—and NWAC. Yet none of those organizations has come to our reserve and asked what we wanted. Is that really proper consultation? Do they really represent us? Where is the respect for our government-to-government relationship?

That's where I think we need to go, and speaking as the grand chief of Treaty 8, we have presented a document to the Prime Minister of Canada to talk about the treaty relationship and to deal with some of these issues. There needs to be a recognition of our sovereignty, our jurisdiction and authorities, and our powers, so that we can come to a negotiated agreement that will answer the questions you're trying to answer.

It is not really up to the Government of Canada to fix all our problems. We at the first nation level have recognized that we have our own responsibilities and we're moving forward in that manner. The government should be making resources available for first nations who want to go down this road and consider it an investment in the future, so that we are not a “burden” on the Canadian taxpayers. Nobody wants to be a burden.

There needs to be some healing within the community so that we can rise up and take our rightful place in this country, which we agreed to share. On our part, my great-grandfather signed the treaty in 1899 at Willow Point on Lesser Slave Lake on June 21. That was Treaty No. 8. He was an original signatory.

I'm the seventh chief since then, so we follow our customs and traditions. We've had maybe 10 elections in the last 115 years, if that, and that's all been by acclamation. We follow our own traditional ways and we want to continue that way without any interference.

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you.

Our staff have joined us as well. We have Tonina and Norah, who are our analysts, and we have our clerk, Jean-Marie, who many of you will have been in touch with as we have worked to accommodate as many witnesses as we could today.

We appreciate that you've come from different locations to be with us today. Obviously your voices are very important to any issue, but specifically to this issue. When we're talking about the Indian Act, it's your communities that will be affected by any changes to this act.

I think we've heard agreement across this country, and across political lines, that the Indian Act is a relic of the past and something that needs to be replaced. Obviously there are different opinions across the country as to how that should be undertaken. Bill C-428 is one attempt to undertake that. We have heard from folks who have come with different perspectives as it relates to this bill as well.

We are interested in hearing your feedback. Obviously you've had an opportunity not only to read this bill, but you've also had the experience of living under the Indian Act and knowing how these changes might affect you.

We want to get right into it and hear from you with regard to it.

Obviously there are a number of provisions within this act. Specifically, I think those of you who heard the earlier submissions by the bar association will have heard that there are different components. I don't want to assume that you'll have a perspective that would be similar to the bar association or other witnesses.

However, it would seem that there are the less controversial provisions as they relate to a number of things, such as the sale or barter of produce, the departmental employees being prohibited from trading with first nations folks without a licence, and a number of provisions as they relate to truancy and the residential schools generally.

I thought we would begin with your reflections on those provisions, and then we'll get in to the issues surrounding bylaws and wills and estates further on.

I would like to turn it over to folks who might want to jump in right away. If you have a perspective as it relates to specifically the sale and barter of produce, or the ways that this is being contemplated, or the renewal of these provisions within this act, we'd like to hear the general discussion on those. If you want to go elsewhere, we're fine with that. We thought that would be a way that we could begin the discussion this morning.

Barry, we'll hear from you to begin with.

[Christopher Devlin]

The bylaw-making power isn't being changed. What's being changed is the minister's ability to disallow a bylaw made under section 81 of the Indian Act. So the chief and council would still be able to make amendments to bylaws, repeal bylaws, make new ones. Bill C-428 isn't proposing to change the actual power to make bylaws. It's just proposing to change—

[Stella Ambler, Conservative, Mississauga South, ON]

Fair enough.

I just have one more question I'm wondering about. If Bill C-428 is enacted, then will first nation communities be able to review, repeal, amend bylaws once it's enacted? Given this new independence—I probably shouldn't use the word “independence”, but in effect it is—will they then be able to amend them just as any other jurisdiction would be able to?

[Stella Ambler, Conservative, Mississauga South, ON]

Thank you.

Other witnesses here have told us that Bill C-428 would introduce a bylaw publication requirement that other jurisdictions don't have to follow. It is more onerous. Clause 10 would require that the bylaws be published on the band's Internet's site, in the First Nations Gazette, and in a newspaper generally available on reserve. This is instead of the minister's approval now.

But I understand, through a bit of inside information, that Mr. Clarke is considering an amendment to his bill that would require the publication of the new bylaw in only one of these places, instead of all three.

Does the CBA have an opinion on this potential amendment? Again, how would it compare to other jurisdictions' publication requirements?

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

Thank you, Mr. Chair.

Thank you, Ms. Thomson and Mr. Devlin, for a very thorough presentation. I appreciated getting the briefing document.

It seems clause 7 of Bill C-428 is the most problematic. There are other issues as well, but it's the most problematic. I have a couple of points of clarification on your specific recommendations.

Regarding your recommended amendment about “common-law partner" for the purposes of Indians ordinarily resident on reserve, under subsection 2(1) of the act, common-law partner is already defined. The assumption is that subsection 2(1) of the act would prevail even if clause 7 were left in Bill C-428. Is there something I'm missing? Because there already is a definition.

Section 2(1) of the Indian Act states that:

“common-law partner”, in relation to an individual, means a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year....

[Christopher Devlin, Executive Member, National Aboriginal Law Section, Canadian Bar Association]

Thank you.

I understand that all of the members have a copy of our paper in front of them, which will be very helpful. We have three comment sections in the brief.

The bill proposes to repeal several sections of the Indian Act. The first section of our paper just reviews the sections where we have no concerns about the repeal of those provisions. They are archaic provisions for the most part, or they are provisions that enough workarounds have been developed that they are no longer in effect as a practical matter. We suggest that the committee should not be concerned about the repeal of those provisions, so I'm not going to spend any time on those.

What I do want to spend time on are the effects of section 7 of the act, which would be the repeal of certain provisions of the Indian Act relating to wills and estates. Section 7 would remove the minister—of I guess it's still legally Indian and Northern Affairs Canada—from the administration of estates and wills. We have considerable concerns about this section. It's a very small section with huge implications, as we see it. I want to talk first with respect to wills, then estates, and then some transition issues that we've identified in the paper.

With respect to the repeal of sections 42 to 47 of the Indian Act that would follow from clause 7 of Bill C-428, the provincial laws with respect to wills wouldn't then apply to the wills of Indians by virtue of section 88 of the Indian Act. It's all very complicated, but section 88 of the Indian Act brings into force provincial laws that apply to wills with respect to Indians. It's referential incorporation of provincial law. Without federal regulation over Indian wills, then the provincial laws would apply. We see a few challenges with this.

First of all, provincial laws are different throughout all provinces and all territories. You would no longer have a uniform law that would apply to Indian wills across the country.

The second thing is that it would be a very complicated and expensive process that would then fall to individual Indian families rather than be administered from the Department of Indian Affairs. We also have to remember that these provisions only touch on wills for Indians who are ordinarily resident on reserve. The wills of Indians who do not live on reserves or whose main residence is not on a reserve are already subject to provincial legislation with one exception. That is, if they hold any land on a reserve, then they still have to go through and are still subject to the Indian Act with respect to transfer of land. The normal conveyancing of land in a provincial system wouldn't apply. They would then still have to go under the Indian Act to be able to transfer and devise land held on a reserve to the beneficiaries. I'll explain that in a moment.

Without that backstop of having Indian Affairs be the default institution, these private citizens—who are now Indians, ordinarily resident on a reserve, or their families—will be forced to start in the provincial system, and potentially move back to Indian Affairs to get a variety of opinions on the value of the estate, perhaps section 50 sales of their certificates of possession. Then, once all that is taken care of, they have to go back to the provincial system to get it probated. The current system allows the minister, who effectively acts as a probate court, to have all of this happen in a very efficient manner. Those efficiencies will be lost.

Families who have to deal with probate of Indian wills will be flipping back and forth between whatever their regulations are in their province, and then back to the Indian Act if there are land issues on reserve, and then back to the province. We expect that this will increase costs.

The other thing that we have identified in the paper is that many Indian estates, frankly, aren't worth that much. Usually, the typical Indian estate, for someone who's ordinarily resident on reserve, is some sort of landholding on the reserve, like a certificate of possession. There will be a family home. But the value of those land holdings tend to be much less, particularly in rural communities, than you might expect off reserve. The value of a certificate of possession doesn't attract a high market price.

Other provisions in the Indian Act require that certificates of possession can only be bought and sold by other members of the band, and of course, mortgage money can't be raised to pay for these, so they tend to be cash transactions. Because you have a small market for certificates of possession—other band members—and because you can't raise financing, the price for these holdings on reserve gets much less.

Why is this a problem? It's a problem because the public trustees in the various provinces and territories simply won't touch small estates. If they can't get their fees out of the estates, then they won't deal with these kinds of issues. So if a will is declared void for whatever reason, or part of it is declared void, or if the will says you can have all the personal property but the real property on the reserve has to be transferred according to the Indian Act, the value of that could be so small that there won't be any backstop. The public trustees in the provinces simply won't deal with it.

As a result, one of our big concerns is that landholdings on reserve may no longer come out of the names of deceased Indians, because there may be no financial incentive for people to actually go through a probate process, or in the case of intestacies, an administration process. You may have certificates of possession that could remain in the names of deceased Indians for years. There's simply nobody who will have an interest in resolving those estate matters. Indian Affairs will no longer be administering that. The minister's jurisdiction will be taken away. The public trustees won't be able to get their fees, so they're not going to be interested. Quite frankly, some of the families in some of these small rural communities, access to justice for them—accessing legal counsel who will understand this, their ability to fund the probate process—probably won't be there in many cases.

There are some other concerns we have, which I only want to touch on, that are unique to first nations. We mention concurrent spouses as an issue. The Indian Act has significant flexibility to deal with situations in which a person may be married to one person, say early on in their life, then by the time they die are living with someone else. The Indian Act allows for the minister to ensure that a will provides for all dependents of a deceased Indian, and that can include concurrent spouses. That flexibility is lost in most of the provincial jurisdictions that we're aware of.

Also, Indian customary adoptions is another big concern. Under the Indian Act the definition of a “child” includes children who are adopted through indigenous legal traditions. The definition of “child” in most of the provinces and territories does not refer to that. So when you have child beneficiaries under Indian wills, currently they can include children who have been adopted according to the custom of that first nation. That may become lost and those beneficiaries may become disentitled under Indian wills.

I've already talked about the problem of dividing land on reserve, so I won't go into that again.

The form of a will is another big concern. Under the Indian Act and the Indian Estates Regulations, the form of a will is that it has to be in writing, signed by the testator, and expressing the testator's wishes. That's it. It's a much more generous definition than what exists in most provinces and territories.

We have—and we note these statistics in our paper—only 5% to 10% of Indians ordinarily resident on reserve making wills now. The fact that this bill would see them fall under provincial jurisdiction and therefore have to comply with the forms of wills that are required under provincial laws may reduce the incidence of Indians, ordinarily on reserve, making wills. It may increase the level of intestacies of Indians ordinarily resident on reserve as a result of having to comply with provincial jurisdiction. Some provinces, it's true, allow for holographic wills, so just a piece of paper signed by the testator, but many don't. We have to be alive to that as the bill is being considered.

I have touched briefly on the ability of the minister currently to void wills in unjust circumstances. Provincial legislation will allow wills to be voided in circumstances of duress or lack of testamentary capacity. The Indian Act provides greater flexibility to the minister currently, particularly when a will disposes of land contrary to the Indian Act or against the public interest. There is a huge flexibility currently in the Indian Act for the minister and the department to make provision for all those who need to be provided for in a will, and to vary it accordingly. That flexibility doesn't exist to the same degree in a variety of provincial regimes, nor uniformly across the country, the way it does now.

Although it removes the minister's exclusive jurisdiction over wills in estates, the bill still keeps the intestacy provisions in place in the Indian Act. As I mentioned earlier, over 90% of Indians who are ordinarily a resident on reserve do die intestate. However, this removal of the jurisdiction under section 43 of the Indian Act means that the minister has certain obligations, but no longer the jurisdiction to trigger them under the intestacy provisions.

In our paper, we talk about what we identify as potentially harsh, unintended consequences. For example, under section 48 of the Indian Act, the minister still needs to be involved in the valuation of estates assets and intestacies, and also has to provide an opinion as to whether adequate provision has been made for children and dependents. Currently, the minister and Indian Affairs act as the administrative backdrop to Indian intestacies. If that's not the case, if they become more passive players in the process, although the minister has the obligation to come to these opinions, that won't be triggered until a private administrator would come forward from an Indian family on behalf of a deceased Indian to ask for those opinions. That means the minister's obligations would be somewhat reliant, then, on the diligence of these private administrators, or reliant on the fact that the private administrators are indeed appointed.

That goes back to my earlier point. On some Indian estates, there simply won't be enough value in the estate to warrant someone being appointed administrator. Their fees and costs won't be covered.

[Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association]

Thank you, Mr. Chair and honourable members. We are very pleased to appear before this committee today on behalf of the Canadian Bar Association. We represent over 37,000 members across Canada. The statement that you have received from us was prepared by the aboriginal law section, which includes lawyers from across Canada with expertise in all areas of aboriginal law.

On the areas of the bill relating to sections 42 to 47, we have also received input from our wills and estates law section.

One of the objectives of the Canadian Bar Association is improvement in the law and improvement in the administration of justice. It's through that lens that we have examined Bill C-428.

With that, I'm going to ask Mr. Devlin to go into the specifics of the points that you have in front of you in the submission.

[The Chair, Conservative, Chris Warkentin]

Colleagues, we'll call this meeting to order. This is the 68th meeting of the Standing Committee on Aboriginal Affairs and Northern Development. We are continuing our study of Bill C-428.

Today we have the privilege of having representation from the Canadian Bar Association. We have Christopher Devlin with us today, who is back to our committee. We appreciate your willingness to return. We know that you're from Western Canada and it's five in the morning there, so we appreciate your willingness to come this morning and be prepared to answer questions.

We also have Tamra Thomson. Thanks so much for being with us. We appreciate your willingness to come and answer questions as well.

We'll turn it over to you folks and we'll hear your opening statement. Then we'll have some questions for you.

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

Thank you, Mr. Chair, and I'd like to thank the witness for coming in today and travelling here to provide his feedback on my private member's bill, Bill C-428.

We've heard from witnesses on how the current Indian Act affects first nations in their day-to-day lives and on the decision-making processes made on first nations reserves.

I am wondering if you could provide some input or feedback, and some personal experiences, that you believe the Indian Act affects first nations uniformly. Are there regional differences as well?

[Guy Lonechild, Former Grand Chief and Vice Chief, Federation of Saskatchewan Indian Nations, As an Individual]

Thank you to all who are gathered here, the members of Parliament and all the staff, and so forth.

My name is Guy Lonechild, and I guess if you were to ask me what my title is, it would be recovering politician, former chief and vice-chief of the Federation of Saskatchewan Indian Nations.

I'm pleased to be here to provide comment on Bill C-428, the Indian Act Amendment and Replacement Act.

I'm very happy that we're on the traditional territory of the Algonquin nation.

As former chief and vice-chief and now being a private citizen, I would restate that our leaders past and present have long held that the Indian Act is wholly inconsistent with our inherent treaty and aboriginal rights as self-determining nations. In fact, the Indian Act has long been recognized as violating our human rights, recognized as such by Canadian courts, international forums, and academic discourse, each reaching that obvious conclusion.

Above all, the Indian Act was unilateral legislation forced upon first nations citizens without their consent, creating catastrophic results.

The most critical message I bring today is that any unilateral changes to the act circumvent Canada's legal and constitutional obligations to consult with first nations. Any amendment or replacement that is not led by first nations people will perpetuate Canada's colonial, unilateral, and at times disastrous relationship with the first people.

I'd like, however, to have the committee ensure that there is full consultation, as outlined at the Crown-First Nations Gathering, to fully consult on any bills concerning the Indian Act.

Treaty first nations assert that the passing of any legislation, particularly the Indian Act, is in direct violation of the treaty relationship. It was, and still is, a complete abrogation of the consensual partnership between our respectful sovereign nationals. Settlement in Canada was facilitated only through the mutual consent of the treaty signatories, each of whom were sovereign and consenting nations.

The relationship between indigenous treaty nations and the crown was premised on mutual consent between sovereigns. It is critical to understand that consultation and consent are implicit in the original treaty order, as a natural command to consensual agreements made, and the relationship between two sovereign nations. The treaty order was to be one of consensual nation-to-nation relations, where the indigenous nations delegated certain responsibilities to the crown in a reciprocal arrangement of a shared territory, with the crown's assistance.

The relationship was not an agreement to relinquish sovereignty, nor was it an assent to domination. Instead, the indigenous nations entered into a nation-to-nation, federal-like arrangement with the crown, whereby the jurisdictions and responsibilities of the signatories were established, with sovereignty and jurisdiction maintained. The Indian Act was a result of unilateral government action that was designed for colonial approaches to first nations, based on the crown's belief of the inferiority of first nations to that of the crown, which only reinforced colonial law and ideals.

The Indian Act created devastating economic barriers. Indians were prohibited from making claims against the crown for the purposes of land claims and were also prohibited from benefiting from their land. The Indian Act has controlled for too long first nations land tenure systems, property, and economic initiatives.

So in this move to improve the lives of first nations people, I would come to the conclusion that the Indian Act is still an avoidance of treaty implementation This is evident in sections 32 and 33, where Canadian law may not have adequately recognized certain rights, benefits, or protections to treaty Indians, and in fact has further defined and has since limited these treaty rights.

Sections 92 and 105, more specifically, would state.... In section 105, where the act refers to “in any manner by which he may be identified.”, it seems also redundant, if not offensive.

Section 114 of the Indian Act that allows government to enter into agreements with religious or charitable organizations to educate Indian children, residential schools, should obviously be repealed.

Repealing section 82 of the act and replacing it with proposed section 86.1 will be a very positive step in empowering first nations to have more authority over decisions made by band councils. Once passed, it will allow for much more timely decision-making and planning by first nations.

Where there is caution is in repealing sections 42 through 47 which deal with wills and estates. That proposes to apply through the operation of section 88 of the act. If section 43 is repealed, the minister and AANDC will stop making decisions. Where otherwise it may have been helpful administratively, families will then be left to bear the legal costs for making application to the courts themselves. This process is expensive and very complex when families have to deal with the Canadian court system. Sections 45, 46, and 47, if repealed, would result in a substantial change and Indians may choose not to seek a lawyer or to put together a will altogether, because of the cost.

On section 47, again, for rural and remote communities it may be very difficult and not economically feasible to pursue wills. Removing this section leaves individuals with less protection and it would be detrimental to those living on reserve.

One of the key questions that has been raised most recently that I have heard in my discussions with other residential school survivors is, given that many first nations people who went through residential school processes may or may not have constructed a will, will they be grandfathered in if the legislation is passed?

Lastly on section 85.1, it's important to note that for communities who wish to maintain the authority to ban alcohol from reserve, repealing this section will have a negative impact on those who wish to employ it.

The proposed amendments under Bill C-428 are properly characterized as historical housekeeping of archaic and little-used provisions of the Indian Act. The amendments proposed under clause 7 of Bill C-428 will increase costs and complexity and there will be confusion over the applicable laws that apply to on-reserve estates across the country.

Finally, the AFN and other first nations organizations would like to ask that this portion be tabled until there is more consultation. This may or may not be so, but again, consultation with our first nation peoples, their organizations at all levels, should be encouraged.

I'd like to thank you for this opportunity to provide some comments and suggestions and to field some questions from the committee.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chairman.

Thank you for your attendance here this morning and for your very interesting testimony. I want to follow up regarding some previous comments you made with respect to consultation, specifically consultation regarding this bill, Bill C-428.

The courts and practice have indicated that consultation with first nations is a requirement. From your perspective, when has that duty been complied with?

[Jody Wilson-Raybould]

If Bill C-428 were passed, first nations would have to publish their laws in the local newspaper, on the Internet, and in what is called the First Nations Gazette.

As I stated, publishing bylaws or laws, which could be 10 to 20 pages long, in a newspaper is simply not practical. There are very overwhelming costs associated with it. I agree that...and many first nations have undertaken to publish their laws and their bylaws on the Internet and make them available to their constituents.

Again, as I referenced in terms of the First Nations Gazette, first nations publish their laws right now in that gazette. But the reality, and the optimism I have for our post-colonial transition or our nation rebuilding is that there are going to be tens of thousands of laws made by our nations. Prescribing that they be put in newspapers or in one place would certainly be unmanageable.

[Jody Wilson-Raybould, Regional Chief, British Columbia, Assembly of First Nations]

Thank you, Mr. Chair, and thank you, members of the committee, for allowing me some time to present on Bill C-428.

I'm the regional chief for British Columbia and the national portfolio holder for governance at the Assembly of First Nations. I'm happy to be joined here today by Karen Campbell and Alyssa Melnyk from our offices.

Turning to Bill C-428, as set out in the preamble of the bill, there's no question that the Indian Act is “an outdated and colonial statute”. On that, we all agree. However, for far too long, our political challenge has been what to do about it: appeal it, amend it, or replace it, and if so, what with? Our challenge has also been to find the courage and the ability to actually do something about it.

In this regard, I commend MP Clarke's leadership in bringing forward this bill to further stimulate the conversation about what actually needs to be done to move forward. Unfortunately, Bill C-428 is not the solution. We need strong and appropriate governance, not tinkering with the Indian Act, creating perhaps the illusion of progress.

The good news is, however, that first nations do have solutions and are making progress in their efforts to move away from the Indian Act, despite progress being far too slow. We need to continue developing our own solutions, building on our success and what we have learned over the past 40 years from those first nations that already are governing outside of the Indian Act, either sectorally or comprehensively through self-government agreements.

Additionally, mechanisms are needed to support our nations, at their option, to move beyond the Indian Act when they are ready, willing, and able to do so. While the preamble of Bill C-428 acknowledges that the Indian Act “does not provide an adequate legislative framework for the development of self-sufficient and prosperous First Nations’ communities”, the bill itself is not a mechanism that will move us closer to the appropriate legislative framework that would assist our nations in comprehensively moving beyond the Indian Act. Public Bill S-212, An Act providing for the recognition of self-governing First Nations of Canada, was developed to meet this need, a bill I hope at some point I will be presenting on before you.

Bill C-428 is an eclectic bill. In addition to the requirements for the minister to report on progress, moving away from the Indian Act, in clause 2, there are two types of amendments to the Indian Act that are proposed: first, those that repeal and amend sections of the Indian Act that are no longer appropriate in this day and age; and second, amendments that repeal, amend, or add language that would design aspects of our post-colonial world for us. It is the latter group of changes that are problematic. This is all the more significant because the changes would not be optional and would apply to all first nations still governing under the Indian Act.

Unless these clauses of Bill C-428 are amended or removed, this bill should not become law. Ironically, keeping them could even create new problems. I know that a review of the clauses of the bill will take a little bit of time, but I will try to do it in brief, so I hope for and look to the indulgence of the committee.

Looking to clause 2 of the bill, which requires the minister to report to this committee on the work undertaken to develop new legislation to replace the Indian Act, I appreciate the intention; however, this suggests in my view that it could take years until we actually do. Respectfully, this sends the wrong message. We have the solutions now. Personally, I'm less interested in reporting on progress made in developing appropriate federal legislation than simply making progress as the first order of business.

It is equally important, of course, that all first nations know what options are currently available to them, along with the continuum of governance reform and to opening up the post-colonial door, to know what other nations are actually doing on the ground in terms of developing the policy framework for their post-Indian Act world, and further, what work is required. This is why the BCAFN developed our governance tool kit, which provides or includes a comprehensive governance report. Mr. Chair, I do have copies of the tool kit on a USB. With your indulgence, I would like to provide them for the members of the committee.

The report referred to in clause 2 should probably be tabled in Parliament, or it is not just in the interest of this committee. The clause also makes reference to the report being developed “in collaboration with First Nations organizations and other interested parties”, but does not define what these organizations are or whom the other interested parties might be.

More generally, what constitutes adequate consultation, and how deep, with respect to developing federal legislation is complicated. What is required depends on the intent of the legislation. Is it enabling, or is it intended to govern first nations, and is it optional?

A more considerate and rigorous approach needs to be developed. Our nations are extremely upset with the consultation processes to date.

Clause 3 amends the definition of “reserves”, and is required because of other amendments proposed to the act.

Clause 4 addresses the application of the Indian Act off reserve and removes references to sections of the Indian Act that will be repealed later in the bill.

Clause 5 repeals sections 32 and 33 which, of course, are paternalistic and prohibit a band member, or a band, from selling their animals and crops unless Indian agents approve. All self-government agreements do away with these sections regardless of whether or not the nation assumes jurisdiction over agriculture. These sections should have been repealed years ago.

Clause 6 deals with special reserves. I'm not sure what is intended by this amendment, or why it was proposed. This is a really complicated area of the law and any tinkering with this section could have unintended consequences.

Clause 7 removes those sections of the Indian Act dealing with wills and estates and the descent of property. This is one of the most problematic series of amendments proposed in this bill because jurisdiction for wills and estates would automatically default to the provinces. While some first nations may desire this, simply making provincial law applicable with respect to all Indians with no option would amount to a surrender of jurisdiction and is not appropriate.

Furthermore, this is another very complicated area of the law that is tied to how lands are held and administered by our nations. It really needs to be dealt with at the same time, or after a nation has developed its approach to land management, how lands are held, interest created and registered, and so on. All self-government agreements deal with lands as well as wills and estates.

Clause 8 repeals the sections of the Indian Act that provide for the minister to disallow any bylaw made by a council under section 81 of the Indian Act. While in principle we do not oppose this amendment, in practice it will create challenges if not considered as part of a more comprehensive approach to nation rebuilding.

There is a real question as to how a nation makes its laws in the first place, and the legitimacy of the institutions under the Indian Act making them, and the scope of the law-making powers. There are no procedures in the Indian Act for how nations develop, consider, and make bylaws or laws, perhaps because it was not considered important or necessary due to the minister's power of disallowance. However, our citizens demand that before law-making powers are expanded and exercised by their governments there is an open and transparent process with proper consideration of the policy rationale behind any law. This is good governance.

In contrast to this bill, the approach taken in Bill S-212 is that a first nation will develop its law-making procedures as part of its constitution and this will be part of the self-government proposal that the community, the citizens, will ratify when voting whether or not to move beyond the Indian Act.

The debate we should be having is on what areas of jurisdiction do first nations want or, indeed, need to exercise. Considering the existing Indian Act bylaw-making powers should be part of such broader discussion or debate.

Clause 9 repeals the intoxicants bylaw-making powers in section 85.1 of the Indian Act. In British Columbia, for example, there are 32 first nations who have made bylaws under this section. If you remove this section, the existing bylaws of our nations in this area would be invalid and our nations would lose this power. I am sure this is not the intent of the drafters. This is a power that we need. In fact, we need it expanded. All self-government agreements consider governance over intoxicants. Clause 9 should therefore be deleted.

Clause 10 deals with the publications of bylaws and replaces section 86 of the Indian Act with a requirement that a first nation publish its bylaws on the Internet in the First Nations Gazette, which is not a defined term in the bill, and in a local newspaper. Again, the intention is good but the execution is lacking. All comprehensive self-government agreements and sectoral governance arrangements provide for the publication of laws respecting the principle that those who are affected by the law need to have access to the law and can rely on it.

There are different policy considerations for different types of laws, depending on who is subject to them. A number of approaches for publications are used currently. This is one of those areas that our nations need to address when they are rebuilding their institutions of government post-Indian Act. Today there are thousands of first nations bylaws and laws. In B.C. alone, our nations have enacted over 2,500 laws or bylaws. In the future, there will be thousands more.

The suggestion that all these bylaws and laws can be published in a newspaper is, of course, unrealistic. Similarly, whether or not it's appropriate for all first nation bylaws to be published in a single First Nations Gazette published by a university law centre under the authority of the tax commission also raises a number of serious policy questions.

Further, clause 10 requires that a bylaw come into force either when it is published on the Internet in the gazette or in a newspaper. Again, this is too simplistic. Laws may come into force on the date set out in the law itself, and not all sections of the law may come into force at the same time. Some laws may require publication before they come into force, and some indeed may come into force when they are published. The rule will depend on the particular law and policy objectives of the government making the law.

Clause 11 repeals section 92 of the Indian Act, which sets out that certain people acting in a fiduciary capacity cannot trade for profit with an Indian unless the minister has given them licence to do so. This section should be repealed and all self-government agreements do this.

Clause 12 is a consequential amendment respecting the seizure of goods. This section would need to be amended if the bylaw on the power to make intoxicants is kept.

Clause 13 deals with fines. I'm not sure why the drafters have the fines going to Her Majesty for the benefit of the band, and not simply the band itself. I would change this, and this is how it is dealt with in self-government agreements.

Clause 14 repeals the offences in section 105 of the Indian Act.

The remaining clauses of the bill, clauses 15 to 19, deal with schools.

The amendments proposed in clauses 15 to 17 would remove all references to religious or charitable organizations, and the operation of residential schools. In my opinion, these amendments should really have been made immediately after the residential school apology.

Clauses 18 and 19 deal with sections 117 to 121 of the Indian Act and address attendance at schools, and truant officers. It conflates these provisions, simply saying that a child is not required to attend school because of sickness, or that they are being home-schooled. We would not object to these changes; however, these are matters that are properly addressed in our own laws dealing with education, and should be considered as part of a broader conversation about how schools and first nations lands are governed and administered.

In conclusion, the bill may be well intentioned, but for the reasons I've set out, it's flawed. If this bill is to proceed further, I would recommend strengthening the preamble. We should also consider more closely with whom the government is consulting in developing its report on progress in moving beyond the Indian Act. Is this a consultation with Parliament or a committee? It should not simply be a progress report on federal legislative initiatives.

As I have stated, I would amend or delete clauses 2, 4, and 13, as discussed. I would delete clauses 3, 5, 7, and 10, as the policy considerations are far more complicated than the solutions suggested in this bill. Changes need to be developed with our nations.

This leaves clause 8, with my caveat that there will be work required by our nations to develop procedures for law-making. Clauses 11, 13, 15, 16, 17, 18, and 19 of the bill for the most part get rid of sections of the Indian Act that should be removed.

Those are my comments, and I look forward to questions from members of the committee.

[The Chair, Conservative, Chris Warkentin]

Colleagues, I'll call this meeting to order. This is the 67th meeting of the Standing Committee on Aboriginal Affairs and Northern Development. Today we continue our review of Bill C-428.

Today we have before us, for the first hour, witnesses from the Assembly of First Nations. Today we welcome Chief Jody Wilson-Raybould. Thanks so much for joining us. We have Karen Campbell joining as well. Thank you so much for being here.

You're familiar with our process here at committee. We'll turn it over to you for an opening statement of approximately 10 minutes, and then we'll have some questions for you.

[The Chair, Conservative, Chris Warkentin]

Colleagues, I will call this meeting to order.

This is the 66th meeting of the Standing Committee on Aboriginal Affairs and Northern Development. Today we continue our study on Bill C-428, a private member's bill.

We have Mr. Harold Calla with us this morning. He's back with us on this study, as he's been with us in previous studies. Mr. Calla is chairman of the First Nations Financial Management Board.

Mr. Calla, we thank you for coming. We appreciate your testimony and your willingness to come today.

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

[National Chief Betty Ann Lavallée]

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

[Chief Betty Ann Lavallée]

Kwey, hello, and bonjour.

Good morning, Chair Warkentin and committee members. It's a pleasure to be here on the traditional territory of the Algonquin peoples to speak to you about Bill C-428, the Indian Act Amendment and Replacement Act.

I am the National Chief of the Congress of Aboriginal Peoples. Since 1971, the Congress of Aboriginal Peoples, formerly known as the Native Council of Canada, has represented the interests of off-reserve, status, and non-status Indians, the Southern Inuit of Labrador, and Métis throughout Canada. The congress is also the national voice for its affiliate organization that advocates on behalf of aboriginal peoples living off reserve.

For over 43 years, the congress has been a strong advocate for amending the Indian Act. Today, over 60% of aboriginal peoples live off reserve. The provisions of this act are rooted in a colonial ordinance directed at imposing restrictions and regulations for the purpose of assimilation. These restrictions are what created the removal of Métis and non-status Indians from their historical communities in the first place.

Our organization supports the removal of the archaic provisions created under the Indian Act, such as, for instance, eliminating the minister's control and authority over wills and estates. Canadian governments do not control the average person's wills and estates. Likewise, aboriginal people should be able to take control of their own personal affairs and not be subject to such childish scrutiny and personal interference by the crown into matters that no other resident of Canada would ever tolerate.

The removal of the phrase “residential schools” from the education provisions in this bill is a big step forward. In June 2008, the Prime Minister apologized for the residential schools, although no one should ever forget the tragedies and the injustices that have been done to so many of our aboriginal peoples. Our constituency has been touched by the residential school system. In fact, many of our people relinquished their status so their children would not be forced away from their homes and into residential schools.

The Truth and Reconciliation Commission of Canada is now a major part of the Indian Residential Schools Settlement Agreement. This amendment could be part of the healing process for all those personally affected by the residential school system.

The Congress of Aboriginal Peoples, along with other participants, partnered with the federal government in the joint ministry advisory committee, JMAC, to assist in drafting Indian Act amendments. This committee tabled their final report on March 8, 2002. The report laid out recommendations and legislative options for a first nations governance act. At that time, our organization was supportive of this initiative.

Some of the proposals put forth in Bill C-428 are not dissimilar to the positions put forth in the joint ministerial advisory committee report and the First Nations Governance Act. For example, Bill C-428 repeals section 85.1, “By-laws relating to intoxicants”, under this act. The governance act also addresses section 85.1 and how these limitations have long been criticized by bands and representative organizations as being out of keeping with traditional law-making practices.

This bill also requires permitting and mandating individual first nations councils to publish bylaws. This measure allows for more inclusion to all community members, regardless of residency. Aboriginal peoples should be informed about their communities. Since the Corbiere decision, aboriginal people who live off reserve have the right to vote in elections should they choose to do so, and they also have the right to participate in and vote on decisions regarding specific claims and resource issues.

One of the most significant aspects of Bill C-428 is that it will require the minister to report annually on the work undertaken by his or her department, in collaboration with aboriginal organizations and other interested parties, to develop new legislation to replace the Indian Act. We at the congress believe that this is useful and positive initiative that would keep all parties informed on the progress thus far.

As I previously indicated, the Indian Act was one of the first pieces of legislation to define and create arbitrary classes of aboriginal peoples such as status, non-status, and Métis. Prior to delineating aboriginal peoples, it was understood that non-status and Métis were included in the Constitution Act of 1867 under subsection 91(24). Recently, we've had this confirmed. This subsection provides Canada's federal government exclusive authority to legislate in relation to Indians, and lands reserved for Indians.

Under the Indian Act, non-status and Métis were gradually excluded from the same rights and privileges as status Indians. A recent Federal Court decision ruled that Métis and non-status Indians in Canada are Indians under subsection 91(24) of the Constitution Act of 1867. This decision marks a new relationship with the Government of Canada.

As a national aboriginal organization, we fully expect the government to abide by their duty to consult.

Mr. Rob Clarke has done just that. He consulted with the Congress of Aboriginal Peoples on a few occasions about his private member's bill, Bill C-428, and he made himself available to any aboriginal community off reserve who invited him to learn more about his private member's bill. He attended our annual general meeting and met and had a discussion with my board of directors. He offered his time to come out to speak to their individual boards, which they held at this meeting, and community peoples.

On the whole, this legislation addresses obsolete sections of the Indian Act and permits more participation by off-reserve community members. As a Mi'kmaq, I am a registered Indian under the Indian Act, with my status tied to an Indian Act band. Although I live off reserve, I am recognized as a Mi'kmaq woman with treaty and aboriginal rights. Much of the relationship between the crown and aboriginal peoples involves treaties and treaty relationships, not the Indian Act. There are members in our constituency who are non-status Indian with treaty rights, but they are not protected under the Indian Act.

Treaties were established before the Indian Act. Treaties did not discriminate between mixed bloods. Status and non-status Indians and Métis were all included in these treaties.

The Congress of Aboriginal Peoples respectfully requests a helpful addition to this bill. We believe the annual report by the minister should be amended to include the implementation of treaties. Most non-aboriginal people, and even the media, seem to think the relationship between the crown and aboriginal peoples is based on the Indian Act. This is not the case. The treaty relationship is the basis of the relationship. It is not based solely on legislation. To view it otherwise would limit our thinking to only those issues that are currently covered by the Indian Act, and not those that are broader in scope.

This is an instrumental bill, and it's important to address the distinctions made between people living on and off reserve, as well as the broader principles.

We lalioq. Thank you. Merci beaucoup.

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

Thank you, Mr. Chair.

Thank you, Ms. Audette and Ms. Edwards. I think you've laid out your position pretty clearly.

We would agree that no matter how well intentioned a bill put forward by a member might be, in this case a private member's bill, something that continues to alter the Indian Act piecemeal shouldn't proceed. We would also agree that using the UN declaration's statements about around free, prior, and informed consent, there should be a process developed in conjunction with aboriginal peoples to amend or change or abolish the Indian Act.

You're right: we all agree that it's a colonialist piece of legislation that needs to change. Not everybody from coast to coast to coast is in agreement about how that should happen, and so there does need to be that process.

I have two questions, and I'll ask the first one. A couple of times in your presentation you used the word “collaboration”. In its preamble, Bill C-428 says, “for the development of this new legislation in collaboration with the First Nations organizations”, and in clause 2, it says—and this is where the minister is supposed to report to the House—“on the work undertaken by his or her department in collaboration with First Nations organizations”.

In our view, collaboration does not equal consultation and does not equal free, prior, and informed consent. I wonder if you could comment on those two sections of the bill where it talks about collaboration, and whether in your view that translates into consultation.

[The Chair, Conservative, Chris Warkentin]

Colleagues, I'll call this meeting to order.

This is the 65th meeting of the Standing Committee on Aboriginal Affairs and Northern Development. Sixty-five is an important number, but we cannot retire: we continue our work.

Folks, first up today for our ongoing review of Bill C-428, we have from the Native Women's Association of Canada, Michèle Audette and Teresa Edwards.

Thank you so much for being with us this morning. We appreciate your joining us, and we look forward to your testimony.

We'll turn it over to you for the first 10 minutes to hear your opening comments, and then we'll begin with rounds of questioning after that. Thanks so much again for being here.

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

Similarly, the bylaw section of Bill C-428 reflects article 4. These sections....

Mr. Chair, the UN declaration, which states—

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

What I'm utilizing right now is the parliamentary process of the committee, including to form a legal consultation with first nations. In my private member's bill, I'm trying to look at mandating first nations to meet on a yearly basis, in consultation with the federal government, to look at a more modern and respectful relationship and dialogue to create a more modern and harmonious act that reflects today's values.

You mentioned the UN declaration, and I'd like to point out that under the UN Declaration on the Rights of Indigenous Peoples, to which Canada became a signatory in 2010, we have the responsibility to uphold the articles established in accordance with the UNDRIP, and to adhere to the requirements.

I'd like to point out that under Article 18,

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....

That's what I'm also doing, through bylaws, letting first nations be self-governing and form their own bylaws without having to have ministerial approval.

Also, Article 19 reads:

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.

That is also being included in my private member's bill: a yearly review with the minister and first nations, and that's being legislated.

But also, nothing in Bill C-428 contravenes any part of the declaration; it legislates a consultation process whereby the minister must report back to the House the progress that has been made in repealing the Indian Act. I have met, and will continue to meet with, willing partners in the process, including the first nations grassroots, chiefs, and organizations.

But the bill also promotes other articles in the UN declaration, which you've pointed out, such as Article 3, which calls for first nations to “...freely pursue their economic, social and cultural development”.

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

I believe in my traditional values, one being a first nation person. It's an honour to be here speaking on such a sensitive issue as the Indian Act. Hopefully, once we have finished this meeting today, you will get a better picture of what I'm trying to do.

Mr. Chairman, members of the committee, and guests, I'm honoured to be here today to open the committee's study of my private member's bill, Bill C-428, the Indian Act Amendment and Replacement Act.

As a proud member of the Muskeg Lake Cree Nation and a parliamentarian, the opportunity to sponsor a private member's bill comes along very rarely. I was lucky to be picked in a lottery to bring my bill to Parliament and I take this opportunity very seriously. The reason I'm doing this is in fact the reason I got into politics.

I spent almost half my life living and working on reserve. I was born under the Indian Act and no doubt will die under the Indian Act, but I don't want the Indian Act to follow me to my grave.

As a veteran of the RCMP, with over 18 years of service, I spent the majority of my policing career living and policing on reserves. What bothered me was that I had to enforce this 137-year-old Indian Act and saw daily the impact that this antiquated, paternalistic, and racist legislation had on grassroots band members.

As a representative for Desnethé–Missinippi–Churchill River, a riding having almost 23 first nation communities and the second largest first nation population in Canada, I'm very aware of the challenges posed by this outdated, colonial statute we refer to as the Indian Act.

The problems created by this archaic piece of legislation are far reaching, extending to every aspect of our lives as first nations, and are the root causes of the Attawapiskats of our country. Indeed, we heard every single candidate for chief in the 2012 Assembly of First Nations election say that the Indian Act must go. Virtually every leader of first nation communities across Canada said that the Indian Act must go. And experts from across the political spectrum all say that the Indian Act must go.

In a November 9, 2012, interview the current national chief, Shawn Atleo, said:

Yes, the Indian Act and the Indian Act bureaucracy must be fundamentally and finally eliminated.

The Indian Act is completely contrary to Canadian values and stands in the way of our progress and success as first nations, and has done so for generations. In fact, this legislation treats those of us who live under the Indian Act as second-class citizens.

This legislation was put in place in 1876. It served as the model for South African apartheid, and it really has no place in Canada in 2013 or any other time in our history. It remains a blemish on Canadian society and must be rectified.

Let me talk for a moment about the connection between apartheid and the Indian Act. In an article by South African lawyer, Gary Moore, he sets out the following details:

In 1913 the young Union of South Africa enacted a native land act. The act prohibited the sale or lease of scheduled areas of land reserved for natives to whites. It prohibited natives from acquiring land outside reserves. Reserve land was mostly Crown land. Natives were left in occupation, and native systems of land tenure continued. In 1936 a Crown corporation was created, the native trust, to purchase additional areas released for native occupation. In 1927 South Africa passed an act for native administration generally. It declared the governor-general to be “supreme chief” of natives in most provinces. He had power to appoint and remove chiefs, divide and amalgamate tribes, and punish offenders. His actions as supreme chief were not cognizable by the courts. The act gave the governor-general power to make law by proclamation for native reserves. Proclamations provided for the administrative grant to natives of permission to occupy residential sites and arable allotments in reserve settlements and locations, with restricted tenure and disposal rights. The governor-general could make regulations for such purposes “as he may consider necessary for the protection, control, improvement and welfare of the natives, and in furtherance of peace, order and good government”.

That's “POGG”.

There were special rules and regulations for succession to property of deceased natives. Regulations forbade whites to enter native reserves without a permit. There were regulations restricting the number of shops a native shopkeeper could open in a reserve. Native administration was under the minister and department of native affairs. The department was a vast empire in South Africa on its own. A 1951 act provided for tribal authorities each comprising a chief and his council. A 1953 act vested control of native education in the central government.

Does this sound familiar? It should:

It is said that before South Africa enacted native administration laws it sent officials to Canada to study the reserve system provided for in Canada’s own Indian Act.

However, for all the abuse that South Africa has rightfully had dumped on it because of apartheid, in 1994 that system was finally removed from law. Yet here in Canada the Indian Act, which came well before apartheid, still exists almost 20 years after the demise of apartheid: 20 years.

I must ask the members of this committee, is this the kind of law we wish to see in the books in 2013?

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

When I submitted my bill in its first version in December of 2011, I asked for a full repeal of the Indian Act. What I wanted to do was start a serious discussion and debate about getting rid of the act—and here we are today. I believe I've done that, and accomplished that.

In subsequent discussions with first nations leaders and grassroots members, I was told that the wholesale elimination of the act could inflict unintended collateral damage. It could also place fiduciary responsibility on first nations communities unless there was careful consideration of the effects of each and every clause, and of course they want to know what we'd replace it with.

My goal was to ask my first nations leaders and grassroots to engage with the crown to come up with these solutions. In speaking with our first nations leaders and grassroots members, and after three draft versions of the bill, I arrived at the current and fourth version.

I know there are those who question my right to do this. There are even those who have said the entire exercise must be done by indigenous, for indigenous, people. So I agree, and here we are.

As a parliamentarian and an aboriginal person, I've heard repeatedly that I have no right to bring this bill forward like any other parliamentarian.

There are even those who have said:

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.

Well, I believe it's my responsibility to do it. It has to be done. The time has to be now.

I also know that there are some who claim that this bill cannot have been put before the House of Commons without a formal consultation process. Those very same people clearly know that a private member's bill in the House of Commons does not have the financial or human resources for me to conduct a full-scale consultation, nor is it permissible to share a bill with anyone until it is tabled in the House of Commons.

Nonetheless, I have been engaging and reaching out to first nations on the Indian Act for years, and I have seen with my own eyes the harm this legislation has done. Bill C-428 is designed to mandate development of a process in which first nations and crown can work together on ways to review, repeal, and replace the Indian Act.

Finally, there are those who have specific concerns about the content of the bill itself. I'm here to say that I'm open to amendments that move us closer to the repeal and replacement of the Indian Act, and I'm also open to amendments that make the bill closer. What I hope to see is an open, frank discussion of this bill that bridges partisanship. For me, it's not about the Conservatives or the Liberals or the NDP, and not about partisan ideology, but about starting a process that could transform the lives of so many first nations people, especially the younger generation.

In addition to the mandate of the Minister of Aboriginal Affairs to produce an annual report on the progress of the repeal and replacement of the Indian Act, in collaboration with first nations, this bill will bring a number of changes to the Indian Act. These changes are housekeeping in nature and are designed to remove the underbrush from the act, but they also speak about the goals of the bill.

The true intent of the Bill C-428 is to create and aid freedom and independence for first nations. This is the motivation behind the changes to the bylaw process, wills, and estates sections of the act. These changes will remove the Minister of Aboriginal Affairs from the process and return control of bylaws, wills, and estates to the communities, where they belong.

In addition, a number of sections of the bill remove outdated, antiquated, and unenforced sections of the Indian Act. These sections cause delay. I'm sure we all agree that it's bad policy to leave in these laws and things that there is no intention of ever enforcing.

An example would be the section of the Indian Act that prohibits the sale of agriculture products grown on reserve to anyone off reserve without the permission of an agent of the Minister of Aboriginal Affairs. This section of the act has been waived for a number of years and therefore is not enforced. Imagine a Cree farmer growing corn and not being able to sell his corn without the permission of the Minister of Aboriginal Affairs. It kind of reminds me of a first nations wheat board.

Another section that would be almost as laughable, if it were not so paternalistic and patronizing, is section 92, which prohibits missionaries, aboriginal affairs employees, and reserve teachers from trading with first nations under the Indian Act.

A more insulting and hurtful section of the act is the one that has established residential school systems. My grandparents attended residential schools, so this is very personal to me. I am sure no one here would want to see residential schools again in Canada. A heartfelt apology to aboriginal Canadians who survived the system was made by Prime Minister Harper on behalf of all Canadians and all the other political parties in the House. There is no moral policy or reason to keep this law in the books.

To go back to the two essential questions, they are: how shall we deal with the Indian Act review, repeal, and replacement, and what should be in its place? I can't answer these questions alone. That is why we're here today in committee: to seek these answers. I'm sure we each have our own ideas about what a respectful and modern relationship between first nations and Canada could be, but we have to arrive at a consensus about what this means and what this would look like.

Our people have waited 137 long years for this discussion. It's about time that we take it seriously. It's my hope that this bill will serve as a springboard for engagement. I look forward to this process and answering your questions today as we proceed through the examination of Bill C-428.

Thank you, Mr. Chair.

[The Chair, Conservative, Chris Warkentin]

I call to order the 64th meeting of the Standing Committee on Aboriginal Affairs and Northern Development.

Pursuant to the order of reference of Wednesday, December 5, 2012, we are continuing our study of Bill C-428, An Act to amend the Indian Act (publication of by-laws) and to provide for its replacement.

Today we have the privilege of having one of our own committee members testify before our committee as the proponent of this private member's bill.

Mr. Clarke, we'll turn it over to you for the first 10 minutes and then of course we'll begin our rounds of questioning. Please go ahead.

Indian Act Amendment and Replacment Act

[The Speaker, Conservative, Andrew Scheer]

The House will now proceed to the taking of the deferred recorded division on the motion at second reading stage of Bill C-428 under private members' business.

The question is on the motion.

The House resumed from November 28 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.

First Nations

[Manon Perreault, NDP, Montcalm, QC]

Mr. Speaker, today we are debating Motion No. 386, which asks for the House's support in initiating a formal process of direct engagement with the first nations that would replace the Indian Act with a series of new agreements.

These consultations would begin and end according to a precise schedule. They would lead to the writing of a report that would establish specific, meaningful elements on which the government could take action once the consultations are complete.

The repeal of the Indian Act will not be a sad occasion. It is a completely outdated, irrelevant, heavily bureaucratic tool for oppressing the first nations.

We are nowhere near having an act that meets their needs. In fact, the opposite is true. This issue deserves to be treated seriously. It is a call for action to eliminate the government's trusteeship over the first nations.

We must put an end to their status as wards of the federal government. This is one of the most pressing problems facing Canada. It is time to change things once and for all. It is time to put an end to the old habit of settling each dispute on a piecemeal basis. According to the Canadian Human Rights Commission, the act not only includes discriminatory elements, it is discriminatory in itself.

The Indian Act is full of paternalistic and discriminatory policies with regard to the first nations. I will not go into details and enumerate its many provisions, but we must recognize the incalculable consequences of this interventionist and controlling attitude on the lives of all first nations.

The act is typical of all the government's attempts to maintain the marginal status of the first nations. Now we must think in terms of renewal. We believe that the Indian Act must be replaced with new legislation, in an equal partnership with the first nations, a real nation-to-nation collaboration.

The fact is that the current legislation is completely outdated, discriminatory and must be replaced by modern legislation. This government has never tried to do that. We in the NDP want the first nations to be able to prosper, and this involves replacing the current legislation with modern legislation.

It is important to understand that the very existence of this legislation hinders progress for first nations communities and is not viable on every level, especially in terms of the relationship between the first nations and the government. This is precisely what the first nations have been saying for years now.

Why is the government so stubbornly refusing to listen to those who are most affected and to really respond to their interests? By governing practically every single aspect of the lives of people living on reserves, this legislation has adverse effects on progress by first nations.

The government claims it is overflowing with goodwill, but its claims are false and misleading. It sees amendments to the legislation as the answer, even though it is clear that the legislation is outdated.

How can they claim to be modernizing an act that they know is completely out of date and has only been used to marginalize first nations for the past 136 years? The process has to be led by the first nations, in keeping with the principles set out in the United Nations Declaration on the Rights of Indigenous Peoples and the concept of their free, prior and informed consent.

The process must protect treaty rights and inherent aboriginal rights. The first nations do not have the legislation they need for health, education and funding at their disposal. This is a vacuum that must be taken into account in drafting modern legislation and setting up a timeline for the process. Modern legislation could then guarantee an improvement in the first nations’ economic and social circumstances.

This legislation undermines the efforts made by first nations to improve their living conditions. On this, we have the support of the Assembly of First Nations, which is entirely in agreement with us. The National Chief called on the government to take action months ago, but the government chose to drag its feet. It is not as though there is a shortage of cases.

I am thinking of economic development, self-government and the sustainability of communities. There is every indication that we have cause for concern. What will spur the government to action?

The NDP would not amend the Indian Act by replacing certain elements. We believe that this would be futile and unwise. However, everything leads us to believe that that is the government's intention. Just think of the declarations that came out of the Crown-first nations gathering last January. The government said that it wanted to work with the first nations to change things, but that did not last very long.

Private member's Bill C-428 sparked shock waves. It includes amendments to several sections of the Indian Act, but first nations were not consulted about this bill. This unilateral action makes no sense. It shows contempt for the first nations. And this is not the first time that the Conservative government's contempt has surfaced, which indicates that it is deeply rooted.

For example, if we go back to the UN Declaration on the Rights of Indigenous Peoples, Canada used all kinds of poor excuses to delay adopting the text and then it voted against its adoption, in 2007. It was not until 2010 that Canada ratified the declaration, after being so damaging to the work done by the UN to adopt the text.

What is surprising in all this, to say the least, is that the Liberals are responsible for a large part of this legislation, of its irritants and of the lack of consultation when attempts were made to impose changes. Remember the infamous 1969 white paper, whose author was none other than Jean Chrétien. This was a pure and simple attempt to assimilate first nations.

Motion No. 386 also does not mention the absence of distinction as to sex. Yet, it is crucial to deal with this issue in the context of gender equality, and it should be part of the basis for future consultations. The rights of aboriginal women were violated, particularly when they would marry outside their first nation reserve.

Despite the fact that the law was amended in 1985 with regard to women's rights, discrimination against women continues unabated. That was the finding of the Committee on the Elimination of Discrimination Against Women, which pointed out in its 2003 report on Canada that aboriginal women continue to be the victims of systematic acts of discrimination in all aspects of their lives. The consultation process would thus give us the opportunity to harmonize the individual rights of aboriginal women with their collective rights as members of first nations.

I am asking all my colleagues to think carefully about this issue, which is of the utmost importance to first nations and Canada as a whole. This is a basic issue that involves guaranteeing real respect for the rights, needs and priorities of first nations, which are too often overlooked in this country. This is also an opportunity to make Canadians aware of the discrimination faced by first nations people. This is not a matter of making changes to the Indian Act but of replacing it with new, modern legislation. Consequently, the first nations communities that worked with the government will be able to help to determine what the next steps will be in promoting the development and well-being of their communities.

This co-operation is part of the UN Declaration on the Rights of Indigenous Peoples, the purpose of which is to get the states to consult and co-operate in good faith with the indigenous peoples concerned. Any commitment in this regard must be based on real co-operation among equals. We must implement a real consultation process and establish a real partnership. By so doing, we will finally be able to focus on reconciliation and harmonious relations between nations.

Unilateralism can lead only to failure, as it has always done in the past. So, let us revoke the Indian Act and scrap this 19th century law that has led to so many problems and discontent once and for all. Let us start fresh with new legislation.

The NDP wants to work with the first nations to develop modern legislation that will help these communities to prosper.

[Chris Warkentin, Conservative, Peace River, AB]

Mr. Speaker, it is a privilege for me to stand in the House again and speak about an issue and a motion that is important. Today, I will speak in opposition to the motion brought to the House by the member from Toronto Centre.

The beginning of the motion is pretty straightforward. It expresses views that are shared by many in the House, including myself, and many first nations throughout the country. The beginning of the motion states:

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 systematic barriers to self-determination and success of First Nations...

After that is where I and the member for Toronto Centre begin to part ways. In the part of the motion that follows he says that the House, should: first, undertake a process to eliminate these barriers; second, take two years to complete this process of discussion; and third, take two years to present a series of concrete deliverables for the government to act upon. Therefore, what the member proposes is two years of talking and no action. That is why I so strenuously oppose the motion.

It has been 136 years since the Indian Act was first brought into force. I wonder how many more years need to pass before we begin to build a process to replace it? The motion is nothing more than flowery rhetoric that we have come to expect from the Liberal Party and it is entirely consistent with the Liberals' track record of inaction when it comes to first nations' issues.

Instead of proposing concrete action to enable first nations to move forward and finally begin to escape the shackles of this paternalistic and colonial legislation, the member opposite has suggested that we further delay any concrete action and take two more years to simply talk about the devastating impacts of the legislation.

When the member opposite brought forward the motion, did he not consider that 136 years was long enough for first nations people to wait? Maybe he should listen to first nation leaders who have said that they have waited long enough. Having listened to the speeches at the Assembly of First Nations elections in July of this past year, I heard all the candidates state unilaterally that the Indian Act must go.

Clearly, everyone agrees that changes must be made to replace and to modernize the sets of laws that provide first nations with the same rights and opportunities that every Canadian enjoys.

I urge all parties in the House to reject the motion and instead support the private member's bill that has been brought forward by my colleague and my friend, the member for Desnethé—Missinippi—Churchill River. Bill C-428 is an act to amend the Indian Act and provide for its replacement. What my colleague proposes is real action and tangible results that would make a difference for first nations people.

The bill would do a number of things. First, it would provide greater autonomy for first nations people. Second, it would lessen the role of ministerial involvement in the day-to-day lives of first nations citizens. Third, it would give back the responsibility for key areas, such as bylaw making powers and the administration of wills and estates over to the first nation, where it rightly belongs.

I wonder what the members opposite have against providing greater autonomy for first nations and lessening the federal government's paternalistic role in the day-to-day lives of first nations citizens.

About a month ago I had the privilege of speaking in support of that private member's bill during the first hour of debate. Second reading of my friend's bill concluded this past Wednesday evening, and we are now waiting for the bill to be referred to the Standing Committee on Aboriginal Affairs. I am really disappointed that the Liberals did not even bother to stand in the House and speak to the bill during the second hour of debate last week, particularly when it has to do with some of the same material they suggest needs to be discussed in the bill they brought before the House now.

Indian Act Amendment and Replacement Act

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

Mr. Speaker, it is an honour to stand here today and close debate on my Bill C-428, An Act to amend the Indian Act (publication of by-laws) and to provide for its replacement.

As a member of Muskeg Lake First Nations and as a former RCMP officer who spent a large part of my 18 years on the force doing first nations policing, I have seen first-hand the cultural, societal and economic barriers that the Indian Act has built. It is an archaic and colonialist piece of legislation that institutionalizes racism and represses the self-determination of first nations.

The Indian Act is completely contrary to Canadian values and has kept first nations from taking advantage of the same rights and opportunities that have been available to all other Canadians for 136 years.

Clearly, something needs to change. All Canadians recognize the hardship the Indian Act has caused my people and we are all eager for positive, enduring change.

After engaging with many first nations organizations, leaders, band members and other interested stakeholders, I believe we have arrived at an important turning point. My private member's bill is the result of significant open discussion and represents the desire of first nations to be self-reliant and free from the shackles of the Indian Act.

Throughout this engagement process, I have always welcomed feedback on ways the bill could be improved. I recognize that there may be a need for amendments that will clarify certain aspects of the bill and I have indicated that I am open to that.

I look forward to hearing more from grassroots members and leaders of first nations and other interested parties before, during and after committee hearings. Their suggestions and concerns will certainly be valuable to this process and will be taken very seriously.

I have been heartened recently to hear that first nations leadership has acknowledged that the Indian Act and its bureaucracy must go. It is important that first nations take leadership and initiative in order to ensure success.

I am proud that my Bill C-428 has provided the opportunity for a frank discussion and debate, and has led to a recognition of the fact that the Indian Act is a blemish on Canadian society in a way that has never been done before. Until we can provide for its replacement, it hinders first nations' success and prosperity.

I believe that my bill is only the first step in doing away with the Indian Act entirely, and we must continue to focus our efforts on fulfilling that goal. That is why I believe one of the most crucial components of my bill is the Minister of Aboriginal Affairs and Northern Development's duty to report to the aboriginal affairs committee on all work undertaken by his or her department in collaboration with first nations organizations, leaders, band members and other interested parties to develop new legislation to replace the outdated Indian Act.

The introduction of such a process accepts the need for ongoing collaboration between the Crown and first nations. Other parts of the Indian Act, like the subsections on will and estates, and the bylaw publication, emphasize the need to move beyond the Indian Act.

It is hard to believe that, in 2012, first nations reserves must seek permission from the minister to sell their produce and that they are prohibited from doing business with anyone they choose. These paternalistic features stand in the way of first nations independence and perpetuate the paternalism. It is about time that first nations are afforded the same rights and opportunities that all Canadians expect and deserve.

We have a unique opportunity today to fulfill this vision. My bill transcends partisan politics and I urge strong multi-partisan support.

The opposition needs to understand that first nations are as rich in diversity and opinion as all Canadians are. To think otherwise is outdated and out of touch.

Bill C-428 is just the beginning of a long road of empowering first nations people and doing away with paternalistic and offensive policies. I am confident it will spur the necessary change we are all striving.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Mr. Speaker, it is truly an honour to rise and speak about a subject that is dear to my heart, which is the replacement and eventual repeal of the Indian Act.

I have to commend my colleague for Desnethé—Missinippi—Churchill River for the courage he has shown in taking on this important issue. This is an individual who, as a first nation man, has conducted his whole life living under the Indian Act. He is someone who has been able to interact with his fellow first nation brothers and sisters for his entire life. This is consultation. It is a degree of consultation that no one in the House currently has, in my opinion, in their past. He has been meeting with people across Canada on this important subject. However, I do know of some recent bills that have not been consulted on.

The member for Edmonton—Strathcona has referred to article 18 of the UN Declaration on the Rights of Indigenous Peoples. She is quite right, there is an obligation to consult with indigenous peoples. I wholly support that and I thank the member for bringing it up. However, there are cases where it has not happened.

Yesterday, I was at the justice committee. Currently, Bill C-279 is before the committee and we had witnesses from the Canadian Human Rights Commission. I asked the commission whether that bill had an impact on first nation people. Are first nation communities impacted by this act and does it have an impact on the lives of first nation people? Their answer was yes, that bill absolutely does affect first nation people.

My question then became whether there was consultation on the bill? In fact, there was not. The member for Esquimalt—Juan de Fuca did not indicate that there was any consultation. I spoke with the Assembly of First Nations, which the member for Edmonton—Strathcona referred to as an important entity with which we discuss these issues. They are the bona fide organization of first nation people. However, they were not contacted on that bill. Also, during those deliberations, the member for Gatineau, in a cavalier way, just set aside that there was any obligation to consult with first nation people on that bill.

Therefore, I take offence to what the member is suggesting. The member for Desnethé—Missinippi—Churchill River is truly a hero to me and others in the first nation community for the work that he is doing. To suggest that we are not reaching out to our aboriginal friends is, in my opinion, not reality. It is something that we are endeavouring to do.

I would ask the member to talk to some of her colleagues about some of the bills that they are proposing and the impact they have on first nation people. She shakes her head much like the member for Gatineau, who cavalierly set it aside that there was any obligation to consult with first nation people on a bill that would impact their communities.

As I said, this is an important day. The bill is timely and necessary. With each passing day, the Indian Act is revealed to be unfit for the times in which we live. When it was first enacted in 1876, it disenfranchised first nation people and it still disenfranchises everyone who lives under it today.

Just recently, we have seen a clear example of why the Indian Act must go in my home province. In fact, in Manitoba in Buffalo Point First Nation there are residents, women and children, living in that community who risk being put out on the street because of political disagreements with their chief. Because of these protests, they could have their homes taken away from them and be disenfranchised through the powers granted under the Indian Act.

Imagine if this were to happen off reserve. Imagine if someone disagreed with their city councillor and all of a sudden were evicted from their home and put out on the street. There would be mass outrage and nobody would stand for that. This is the exact point I would like to make about this community and unfortunately sometimes other communities as well.

Disenfranchisement is occurring. It violates not only any sense of justice or decency but all democratic principles, which is one reason and just one reason why the Indian Act needs to be replaced. It is an archaic, oppressive and unjust legislation. It denies aboriginal Canadians the rights they deserve. It denies individual rights. It denies matrimonial and property rights, leaving women in danger of losing everything due to disputes outside of their control.

Many people may not be aware, but the Indian Act denies first nations people the right to control their own wills and estates. The Minister of Aboriginal Affairs and Northern Development has the power to void the will of a first nations person if he or she so chooses. As my colleague has said, Bill C-428 would repeal the sections of the Indian Act that gives this paternalistic power to the minister. It would be a step toward true freedom and independence for first nations people.

Bill C-428 would also return the authority over the creation of bylaws on reserves where it belongs, with the leadership of that reserve. As it currently stands, the Minister of Aboriginal Affairs and Northern Development must sign off on bylaws made by leadership on reserves. First nations people can govern themselves. They do not need this pre-Confederation prison to remain. As with the wills and estates rules, this is a further denial of independence and decision making for first nations people.

The Indian Act has no place in the 20th century or the 21st century. It is time to replace this act.

The member for Kenora, who was here earlier, has done great work as the parliamentary secretary to aboriginal affairs and has been a great advocate for the Métis people in my community and first nations Inuit people as well. I think back to previous members from other parties in that riding who have also done great work. A former member of the Liberal Party, Mr. Robert Nault, who was the then minister of Indian Affairs, brought forward some very innovative solutions, namely the First Nations Governance Act, which I thought was a step in the right direction. Many first nations did not like that approach, but many did.

One of the aspects of that bill on which everyone agreed was the Indian Act needed to be repealed. The starting point that everyone in the House agrees on is the Indian Act must be replaced.

I have had the opportunity to work with first nations people from across Canada. I have had the opportunity to work with first nations chiefs, councillors and regular community members. There is no question that everyone believes it is time for this act to be replaced. I believe the Indian Act is nothing less than a prison that shackles aboriginal people in our country and prevents them from achieving economic actualization.

We need to proceed with the initiatives that the member has proposed before the House. He started a debate that I am glad we are having. There are opinions from all sides on this matter, but what we can all agree on is that the Indian Act must be replaced. I would hope that at some point in the near future we can get to that moment where first nations people will be enfranchised and have the autonomy they deserve.

[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—

[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.

[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.

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.

First Nations

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

Mr. Speaker, I am pleased to speak today against the motion brought forward by the member for Toronto Centre. This motion is nothing more than an empty promise that contains nothing concrete or deliverable for first nations people. I am convinced that anyone who examines this motion closely will arrive at the same conclusion.

The first part of the motion before the House today states:

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....

It is for those exact reasons I introduced Bill C-428, the Indian Act amendment and replacement act. The preamble to my private member's bill acknowledges the following important points:

...the Indian Act is an outdated colonial statute, the application of which results in the people of Canada’s First Nations being subjected to differential treatment;

...the Indian Act does not provide an adequate legislative framework for the development of self-sufficient and prosperous First Nations’ communities;

...the Government of Canada is committed to the development of new legislation to replace the Indian Act that better reflects the modern relationship between it and the people of Canada’s First Nations;

...the Government of Canada is committed to continuing its work in exploring creative options for the development of this new legislation in collaboration with the First Nations organizations that have demonstrated an interest in this work;

The preamble in my private member's bill would more than adequately accomplish what the member for Toronto Centre is trying to say in the first part of his motion, though my bill would go much further to actually take concrete action for first nations people.

The second part of the motion calls on the government to eliminate these barriers by initiating “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...and that this process be completed within two years before reporting with a series of concrete deliverables for the government to act upon”.

The Liberals had 13 years to begin such a process but they did not get it done. First nations people do not need more talk about failed colonial paternalistic policies. They need concrete actions. First nations should not have to wait another two years before the government starts a process that would enable the first nations to get out of the Indian Act. I believe the time is now to start correcting the injustices that have been done to my people and begin equipping them with the tools to get out from underneath the colonial and paternalistic legislation that is holding my people back from achieving their full potential and becoming full participants in Canada's economy.

I had the pleasure of opening my debate on my private member's bill this past Thursday. The goal of my bill is to: eliminate the minister's role in the administration of estates and the approval and voiding of wills; remove the minister's bylaws disallowance powers and, in doing so, hand over greater control and accountability to first nations; remove outdated and archaic provisions of the Indian Act, such as the requirement for permission to sell produce; repeal all references to residential schools; and, most important, require the Minister of Aboriginal Affairs and Northern Development to report annually to the parliamentary committee on action taken in partnership with first nations and other interested parties to develop new legislation to replace the Indian Act.

Anyone can see that this is not an attempt to completely overhaul the Indian Act. Rather, these amendments would bring about concrete, practical changes that would lead to real results for first nations people and enable them to achieve greater self-sufficiency and prosperity. I also emphasize that this is not an attempt to unilaterally impose changes to the Indian Act on first nations people. Rather, it would provide for greater communication and collaboration in a way that is respectful and modern as we work together toward our shared objective of healthier, more self-sufficient first nations communities.

As members know, a private member of the House of Commons has limited resources to conduct extensive consultation. However, I have made significant efforts to consult with first nations on this bill.

My riding has 23 first nation communities and the second largest first nation population in Canada. I have also spoken to chiefs, tribal councils and grassroots members over the past four and a half years about the importance of moving forward with the scrutiny of the Indian Act. I have served in the House, written all 636 first nation communities on four separate occasions and spoken in a number of public forums on the substance of my bill. I have also encouraged and invited feedback from first nation chiefs, members and other interested parties on the bill, including through my website and direct communication with my constituents.

I am also looking forward to the study of my bill in committee, which will provide yet another venue to hear first-hand from first nations and other interested parties on the content of the bill.

As we can see, I have not arrived at the current set of changes in the bill on my own, but rather through consultation with other first nation members within my own constituency as well as around the country. One important point is that I have revised my bill four times based on feedback that first nations have provided to me. In fact, I am also open to amendments that may come forward through this important dialogue.

It is my hope that one day the changes proposed in my private member's bill will help lead us closer to a more modern, respectful relationship between the federal government and first nations, and will continue—

Indian Act Amendment and Replacement Act

[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.

[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—

[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--

[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.

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

moved for leave to introduce Bill C-428, An Act to amend the Indian Act (publication of by-laws) and to provide for its replacement.

Mr. Speaker, as a member of Parliament for Desnethé—Missinippi—Churchill River, and as a proud member of Muskeg Lake First Nation, with its strong tradition of entrepreneurship and service to military and policing traditions, it is my privilege to introduce an act to amend the Indian Act and to provide for its replacement.

One first nation referred to it as the “eighth fire”, a first nations prophecy meaning that it is time to build a new relationship. The bill would repeal outdated portions of the act, such as references to residential schools, the wills and estates sections and would return control of the publication of bylaws to first nations governance bodies.

Most important, the bill would require the minister of aboriginal affairs to report annually to the aboriginal affairs committee about the progress made toward the legislation to fully replace the Indian Act with consultation with willing partners.

(Motions deemed adopted, bill read the first time and printed)