Bill C-428 (Historical)

Indian Act Amendment and Replacement Act

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

This enactment amends the Indian Act to require band councils to publish their by-laws and repeals certain outdated provisions of the Act.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

Indian Act Amendment and Replacement Act

[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)