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This enactment amends the Indian Act to require band councils to publish their by-laws and repeals certain outdated provisions of the Act.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

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.

Speaker's Ruling

[The Acting Speaker, 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.

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The Indian Act is a paternalistic document that portrays outdated Canadian values and represents a sad and ignorant period in Canadian history.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 Bill 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Act and to provide for its replacement, in order to provoke meaningful conversation about the need to repeal this outdated and archaic act and to create a more modern and less objectionable legislative framework in its place.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--

[The Acting Speaker, Bruce Stanton]

Order, please. The hon. member for Nanaimo—Cowichan is rising on a point of order.

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.

Indian Act Amendment and Replacement Act

[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.

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

Mr. Speaker, I certainly want to commend the member for bringing forward a piece of legislation that he feels is important to him, but I have to question whether he feels that a private member can supplant the government's duty to consult.

The Supreme Court has reaffirmed the fact that the government's duty and the Crown's duty to consult cannot be delegated to any other organization or authority. Although the member says he has taken the trouble to inform his constituents and others about his intentions, I would argue that does not constitute the legal duty by the Crown to consult. I wonder if he could comment on whether he is leading us to believe that a member can supplant the Crown's duty to consult.

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

Mr. Speaker, I have listened to my colleague on the other side of the House, and it is the same paternalistic approach that New Democrats are taking to dictate to me, being a first nation and having lived under the Indian Act. I am listening to this individual criticize without having had to experience what effect the Indian Act has on an individual from the time one is born until the time one dies. The decisions are still made by the minister.

Having gone through Manitoba, Alberta, Saskatchewan and British Columbia to meet with individuals and ask for their input, I started with a draft back on September 7, 2011. The bottom line was to repeal the Indian Act. However, listening to individuals and first nations across the country is how it arrived at the current stage; that is, to amend the Indian Act, repeal outdated sections, and basically start a new process of consultation that legislates the government to work closely with first nations.

[The Acting Speaker, Bruce Stanton]

We had a Friday afternoon bonus question put into the mix this afternoon. We normally do not do questions and comments at report stage of private members' bills, as members will recall.

Resuming debate, the hon. member for Nanaimo—Cowichan.

[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.

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.

[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.

[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.

[Claude Gravelle, NDP, Nickel Belt, ON]

Mr. Speaker, first I would like to clarify something which the previous speaker said, that the opposition did not want to take part in the Indian Act. I want to make it clear that the official opposition wants to get rid of the Indian Act, but we want to do it by consulting with first nations. We do not want to act like the Conservatives and tell the first nations what they want. We want them to tell us what they want. That is something strange for the Conservative Party.

I am happy to speak to this legislation concerning amendments to the Indian Act. This bill is important as it deals with deleting sections of the Indian Act on wills and estates, sales 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.

It is important for other reasons too. I am always happy to have another opportunity to speak about the four first nation communities in Nickel Belt, and specifically a few recent events that relate very much to the matter of consulting with first nation communities, which is an important element of our debate.

Nickel Belt's first nation communities include Nipissing First Nation, Atikameksheng Anishnawbek, which I will speak about later, and also the Wahnapitae First Nation, which is extensively involved with Glencore Xtrata mining projects. They monitor the environment for this mining company along with the water. They do this because Glencore Xtrata consulted with the first nations. That is very important. The other first nation in my community is the Mattagami First Nation. They work very closely with a company called IAMGOLD. The reason they work very closely with this mining company is that the mining company consulted with the Mattagami First Nation. They work very well together.

If the Conservatives would start consulting with first nations, they would find that first nations are really interested in consulting. Unfortunately, the Conservatives are not.

These first nations make contributions to the social and economic life of our region. Given some of the urgent crisis in conditions in some first nation communities in the county, I want to say that these four communities find themselves in pretty good shape. This is the result of their leadership and community members. It is not to say there are no challenges, but it is to recognize the work that has been done there.

When I see a bill like this one regarding changes being made that so affect the lives of our aboriginal and first nation members, I would want to assume that they have been consulted about the changes, but that would be a bad assumption in this case with this bill. Sadly, it is a bad assumption, given the sorry record of the Conservatives and the past Liberal governments.

We do not support this bill for several reasons, including this glaring lack of consultation. The sponsor did not consult with first nations before presenting his bill. I was in his riding this summer. His constituents are very upset with him because he did not consult with them before he presented this bill.

It may be all well and good to delete some archaic provisions of the Indian Act, such as the sale of produce; however, it is not right to proceed to delete other sections, such as the provisions on wills and estates, which could put first nation citizens living on reserve in legal limbo because there is no guarantee that provincial legislation would appear to protect them.

Equally important, we object to the deletion of the provisions on residential schools. This was supposed to be in 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 first truth and reconciliation national ceremony.

Let me tell members about those recent events in my first nation communities that underline the importance of consultation with them.

Back in 2003, when the commission on boundaries decided it would split the Nipissing First Nation in two, one-third of it coming to Nickel Belt and two-thirds going to the Nipissing riding, it did not consult with the first nation and it made a very bad decision.

Fortunately this last commission will make this decision right. How will they make it right? By joining the community together and by consulting with the first nations to see what they wanted. The Nipissing First Nation members made it clear that they wanted to be together in one riding, and thankfully the commission listened to them.

Nipissing First Nation has also just recently concluded a $124 million land claim settlement. In the next month, it will be receiving financial compensation for over 100,000 acres that were lost to it due to an inaccurate survey done long ago. I was happy to do my part in getting the payment out to the Nipissing First Nation members, and I congratulate the minister for his role as well.

I mention it because the land claim settlement came about by consultation and listening. This must be at the heart of righting the relationships with our aboriginal brothers and sisters.

My second event to cite is a recent CBC Radio town hall in which I was happy to participate that took place at the Atikamesheng Anishnawbek First Nation. It addressed many pressing national and regional issues concerning them. The town hall was called Aboriginality: Living Together. The conversation about Canada's relationship with first nations has reached a critical point, and that relationship is critical to successful communities in northeastern Ontario. I would like to thank Markus Schwabe from CBC for putting this on. It was very informative and very good.

We talked about a lot of issues during that town hall. There was a round table set up and we had Mrs. Naponse at this round table. We had Chief Miller at this round table and we had John Rodriguez, an educator and former mayor, plus we had a Franco-Ontarian artist married to a first nations person.

We talked about a lot of things during this panel discussion, but the thing that impressed me the most was the number of people in that community centre, and the vast majority of them were white people. Every single one of them who got up to speak said that the government should consult with the first nations. That is exactly how the opposition feels.

For many years, first nations have said that the Indian Act is holding back progress. It does govern almost every aspect of life for people living on reserve. In July 2011 at the annual meeting of the Assembly of First Nations, National Chief Shawn Atleo said it was time to set aside the Indian Act and dismantle the Department of Indian Affairs to create two smaller departments, one to administer a government-to-government relationship, and the other to provide services to first nations. He also said that it was a process that must be led by first nations; again, consultations.

New Democrats want to work with first nations to develop modern legislation that helps first nations communities thrive. This process must be led by the first nations and deal with priorities that have been identified, like education for first nations children.

New Democrats do not want to tinker with the Indian Act and make any changes that would have unintended consequences. There needs to be a detailed study of changes that must be made and how that should happen, provincial law not necessarily being applicable on reserve in the case of dissent about property or an estate, as one simple example.

AFN National Chief Shawn Atleo, who had repeatedly called for the abolition of the Indian Act, criticized the unilateral approach taken by the sponsor of this bill when introducing legislation of such significance without the involvement of first nations.

In closing, the results of this unilateral approach are as predictable as they are tragic. The Auditor General says that over the years things have gotten worse and the gap in quality of life is widening. We must have genuine consultation.

[Bradley Trost, Conservative, Saskatoon—Humboldt, SK]

Mr. Speaker, I appreciate the opportunity to conclude the debate today.

It is my privilege to conclude debate on this piece of legislation. I have known the hon. member who proposed the legislation since he first ran in the byelection. I had the privilege of campaigning with him as we went from town to town. In fact, in one town there was a five-finger discount done to the gasoline in his truck and we ran out of fuel. We got to talk to some of his constituents at the gas station, instead of at the door, as we tried to make it around. I have known this hon. member since before he got here.

One of the things I have most appreciated about him is his passion for his people, for the people of his constituency, for the people who have been a part of his life. I also appreciate that in the legislation he has taken his real-life personal experiences and is using them to craft the legislation.

We often are called upon to debate legislation in the House that we do not necessarily have a very intimate or personal stake in. However, sometimes we do, and for this member that is one of the reasons he brought the legislation forward. It is one of the reasons why the legislation is of the quality it is and would do the things it sets out, because it comes out of his own real-life experience. For that I want to congratulate him. This is totally and truly a private member's piece of legislation. I know, as we talked about this before he even proposed it to the House. I want to congratulate the member for doing something that is substantive, that would affect the people of his constituency and that would make life better for all Canadians who will be affected by this in one way or another.

As has been noted by other members of the House, virtually every aspect of life on a first nation reserve is controlled by the Indian Act. We in the western world and increasingly the entire world understand that free markets, free enterprise, the right to property, those very basic fundamental things contribute to wealth and well-being. Therefore, it should not be a surprise that when a government, through regulation, legislation and bureaucracy, controls those aspects of peoples' lives, they will not be able to have the prosperity that has been enjoyed by all Canadians.

Therefore, the Indian Act is a barrier to the economic development of first nations, and not just the economic development but the whole development of the broader society, the development of individuals and the development of families. As we have proven in Canada and in other nations around the world, fundamental liberties and principles allow people to grow, prosper and become what they want to be without the overbearing hands of the state.

The private member's bill from the member for Desnethé—Missinippi—Churchill River would remove segments of the Indian Act that prevent first nations from selling items produced on their own land. Think about this, members who were here through the Wheat Board debate would often find it funny, strange or unusual that farmers could go to jail for selling wheat. Every piece of produce, everything that they grow, they are not free to sell from their own farmland. If people have vegetable farms, wheat farms or if they produce cattle, those farmers are not in complete control of their own property. That seems completely unreasonable to anyone who has been involved in business, anyone who has had a house or anyone else in Canadian society. However, that is actually a part of the Indian Act. This unreasonable statute or regulation needs to be put away and taken care of.

People will note that this element of the Indian Act is not often enforced, but it is still there. As the member pointed out in his speech and as other members stated, there are multiple illustrations of these sorts of archaic items that should never have been there in the first place, not in the past, present or future, but are still in the Indian Act. These archaic clauses in the Indian Act can be enforced. It is an active piece of legislation and it can be used selectively at the discretion of the agents of the minister.

As we all know, legislation that is on the books and is not being enforced should either be enforced or removed from law. It serves no purpose.

In my opinion, and in the opinion of many people in the House and of many persons in the first nations community, we have entered into a new era of co-operation between first nations and the government. The member who proposed this legislation is one of those examples. He comes from a riding that is approximately half first nations in population.

First nations people of Canada do not want to be excluded from entering into our modern economy. They do not want to be held back through government legislation. They do not want to be held back from free enterprise, from the ability to make, with their own hands, prosperity with their own property and livelihoods. Prominent chiefs in the first nations communities have expressed their desire to increase their participation in the Canadian economy, and ultimately, in the international economic sphere.

By restricting trade and opportunity for first nations, we are perpetuating an antiquated 19th century mentality. Even in the 19th century, many people understood that this was wrong. Unfortunately, not enough of them stood up to stop this legislation when it was first introduced.

We have an ancient mentality that government knows best. It is a medieval idea that if we have a king who is all knowing and all wise, we cannot permit freedom. It is freedom that ultimately brings prosperity, and it is freedom that has been denied the aboriginal people through large elements of the Indian Act.

Eliminating this law from the books removes the possibility of its injudicious application. The law itself is an example of bigotry. The people who voted for it may not have intended that, but that is ultimately the result in that it exempts one specific ethnic group from the rights all other Canadians enjoy. This is something people need to actually understand.

The previous member for my riding of Saskatoon—Humboldt had a major interest in this issue. He was very good at cursing the darkness without always offering a candle to light the way. He used to criticize and go after the Indian Act, because, he said, it brings special privileges, special rights, and more benefits to the people who are under it. What I always wanted to ask him, but never got around to, was how having more government interference in one's life actually helps. If it was such a benefit and something that was so positive, we would have seen those results. Frankly, as every Canadian knows, we have not.

Being under the Indian Act is not something that has helped our first nations communities develop, be it economically, socially, or culturally. Therefore, the discrimination of this act and the way it prevents people from enjoying their freedom needs to be repealed.

First nations residents are unable to own their own land. This hinders the ability to obtain loans and capital with which to build homes or improve property. As was noted earlier, they cannot sell produce they have grown themselves.

The time to allow first nations members the ability to generate wealth and prosperity by furnishing them with the rights every other Canadian has taken for granted is long past due.

By giving first nations real control over the use of their own lands, we can open the door to economic development and renewal. By paving the way to a more modern Indian Act, we also pave the way to more modern first nations who could fully participate in the Canadian economy without a multitude of crippling restrictions. I close today with these general points.

I wish to thank the member for bringing this issue to the House. I will be supporting it, because it is good for all Canadians, first nations and non-first nations alike.

[The Acting Speaker, Bruce Stanton]

The time provided for the consideration of private members' business has now expired, and the order is dropped to the bottom of the order of precedence on the Order Paper.

It being 2:30 p.m., the House stands adjourned until Monday, October 28 at 11 a.m., pursuant to Standing Order 24(1).

(The House adjourned at 2:30 p.m.)

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.

[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.

[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”.

[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.

[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.

[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.

[The Acting Speaker, Barry Devolin]

Is the House ready for the question?

[Some hon. members]

Question.

[The Acting Speaker, Barry Devolin]

The question is on Motion No. 2, and a vote on this motion also applies to Motion No. 3.

Is it the pleasure of the House to adopt Motion No. 2?

[Some hon. members]

Agreed.

No.

[The Acting Speaker, Barry Devolin]

All those in favour of the motion will please say yea.

[Some hon. members]

Yea.

[The Acting Speaker, Barry Devolin]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Acting Speaker, Barry Devolin]

In my opinion the yeas have it.

And five or more members having risen:

Pursuant to Standing Order 98, the recorded division stands deferred until Wednesday, November 20, immediately before the time provided for private members' business, and the recorded division will also apply to Motion No. 3.

Suspension of Sitting

[The Acting Speaker, Barry Devolin]

The chamber stands suspended until 12 noon.

(The sitting of the House was suspended at 11:48 a.m.)

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.

Indian Act Amendment and Replacement Act

[The Acting Speaker, 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.

And the bells having rung:

[The Acting Speaker, Bruce Stanton]

The question is on Motion No. 2. A vote on this motion also applies to Motion No. 3.

[David Sweet, Conservative, Ancaster—Dundas—Flamborough—Westdale, ON]

Mr. Speaker, although I stood, my colleagues mentioned that they did not hear my name called. I just want to ensure my vote was recorded.

[The Acting Speaker, Bruce Stanton]

I am given to understand that the vote was recorded.

(The House divided on Motion No. 2, which was agreed to on the following division:)

Vote #12

[The Acting Speaker, Bruce Stanton]

I declare Motion No. 2 carried. I also declare Motion No. 3 carried.