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This enactment amends the Indian Act to require band councils to publish their by-laws and repeals certain outdated provisions of the Act.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

[Chief Roland Twinn]

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

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

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

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

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

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

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

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

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

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

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

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

These are the things we need to strive towards.

Thank you.

[Chief Roland Twinn]

Thank you.

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

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

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

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

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

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

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

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

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

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

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

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

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you.

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

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

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

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

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

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

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

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

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

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

[Christopher Devlin]

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

[Stella Ambler, Conservative, Mississauga South, ON]

Fair enough.

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

[Stella Ambler, Conservative, Mississauga South, ON]

Thank you.

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

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

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

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

Thank you, Mr. Chair.

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

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

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

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

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

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

Thank you.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[The Chair, Conservative, Chris Warkentin]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you, Mr. Chairman.

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

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

[Jody Wilson-Raybould]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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