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Turning to Bill C-428, as set out in the preamble of the bill, there's no question that the Indian Act is “an outdated and colonial statute”.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.