Bill C-9 (Historical)

First Nations Elections Act

An Act respecting the election and term of office of chiefs and councillors of certain First Nations and the composition of council of those First Nations

This enactment establishes a regime, alternative to the one under the Indian Act, to govern the election of chiefs and councillors of certain First Nations. Among other things, the regime
(a) provides that chiefs and councillors hold office for four years;
(b) provides that the election of a chief or councillor may be contested before a competent court; and
(c) sets out offences and penalties in relation to the election of a chief or councillor.
This enactment also allows First Nations to withdraw from the regime by adopting a written code that sets out the rules regarding the election of the members of their council.

Motions in amendment

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I thank my colleague from Abitibi—Baie-James—Nunavik—Eeyou. I am absolutely astonished to learn that he was at the Vienna conference in the earliest days of recognition of respect for international human rights.

It is indeed very ironic that this bill concerning our aboriginal peoples is based to an extent on the apartheid system in South Africa. It is precisely as he said. This is a serious issue for aboriginal peoples, the first peoples in Canada, and for the Government of Canada. We must find another way to work together.

It is clear that we have to reform the Indian Act. The best way of crafting this bill is not obvious, but any changes made to Canada's legislation on aboriginal peoples must prioritize what the first peoples want and need.

It is unacceptable to propose such a solution as Bill C-9, which was imposed on first nations. Relations are based on respect between the two nations. Relations between the federal government and first nations must be based on respect.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I appreciate your earlier explanation as to why it is that the amendments are coming forward at report stage. I appreciate your consideration of the fact that due to a clerical error at committee, we did not receive notice to bring amendments forward at committee.

I must say that I am pleased. I have found that the so-called invitations to committees circumvent rights. I am able, at this point, to speak at report stage to what is a very significant flaw in this bill.

As everyone in the House knows, Bill C-9 initially came to us through the Senate as Bill S-6. It is a first nations elections act. Except for everything I am attempting to amend this morning, it is a good bill. It provides more precision in first nations elections. The bulk of the bill is a result of recommendations that came from first nations themselves, specifically from the Assembly of Manitoba Chiefs and the Atlantic Policy Congress of First Nations Chiefs, which represents the Mi'kmaq, Maliseet, and Passamaquoddy first nations of Atlantic Canada.

Before I move to my amendments, the intent of the good parts of the bill was to provide greater precision, to create set terms, and to provide for those first nations that had already opted in to elections under the terms of the Indian Act. That is worth underlining. The recommendations that came from the first nations themselves were to apply only to those first nations that had themselves already opted in to elections under the Canada Elections Act and not to those many first nations that elect their councils through traditional customs and methods other than under the Indian Act.

In any case, I will set aside the parts of the bill that are acceptable and will focus only on the amendments you have just read before the House of Commons. They both go to correct the mistakes that are found in clause 3 of the bill.

Parenthetically, I want to note that today is international Human Rights Day. Today is the 20th anniversary of the signing of the Vienna Declaration, which brought respect for human rights to the entire community of nations. Why is it relevant that we are looking at a first nations elections act? What about that is relevant to the fact that ironically, today is Human Rights Day?

The problem with this bill and the sections I hope to correct is also found in other bills that have come forward from this administration, such as the bill, not yet tabled, on first nations education. It is also found in bills that have been tabled, such as the NWT devolution in Bill C-15 and this bill, Bill C-9. What they all have in common is a failure to respect the constitutionally enshrined right of first nations to be consulted about changes that impact them directly.

In Bill C-15, in addition to the NWT devolution, which everyone supports, there are substantial changes to the Mackenzie Valley regulatory systems that are part of first nations agreements and treaties, without consultation with or the consent of first nations. This brings to mind that these changes are actually questionable constitutionally under section 35 of the Constitution, as interpreted in many Supreme Court decisions. From the Haida case and the Delgamuukw case to the Marshall case, it is clear that first nations in this country are protected under section 35 of the Constitution. Further, the federal government has a fiduciary responsibility, a constitutionally enshrined obligation, to consult with first nations.

In this case, we have something that is, in my view, outrageous. Under paragraphs 3(1)(b) and (c), there are two ways in which the minister may impose upon first nations, based on his or her own discretion, a different system for elections within the first nation. What could be more critical in touching on the rights of first nations than changing the way a first nation conducts its own internal elections?

These two paragraphs that are objectionable state that the minister may add the name of the first nations to the schedule of first nations that must conduct their elections as under the act. In other words, the bulk of the act is for first nations themselves to opt in and request to be seen under these sections of a new Indian Act procedure found in Bill C-9.

These are the two exceptions that are outrageous. Paragraphs 3(1)(b) and (c) state that the minister may add the name of a first nation to the schedule if:

(b) the Minister is satisfied that a protracted leadership dispute has significantly compromised governance of the First Nation; or

(c) the Governor in Council has set aside an election of the Chief and councillors of that First Nation under section 79 of the Indian Act on a report of the Minister that there was corrupt practice in connection with that election.

As the Canadian Bar Association aboriginal law subsection has pointed out, the bill does not provide any guidance as to what the corrupt practice might be or what threshold the minister has for making this change.

It is offensive in a couple of ways. One is that it appears to apply to not only those nations that have already opted in to the current version of the Indian Act in their internal elections. It would apply to those first nations that have explicitly not wanted to operate under the Indian Act and that operate under their tradition and custom. Again, what could be more directly a denial of rights?

The United Nations Declaration on the Rights of Indigenous Peoples says very clearly, in article 3:

Indigenous people have the right to self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development.

Article 4 states:

Indigenous people, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal or local affairs...

These changes in paragraphs 3(1)(b) and (c) strike directly at the heart of the United Nations Declaration on the Rights of Indigenous Peoples and further offend the Canadian Constitution section 35.

I would have wished that these sections had been corrected inside the committee, but I hope that today we may give them fair consideration.

What is being proposed in amendment 2, line 9, on page 3 is a proviso to protect those first nations that have been operating under their own customs. The amendment states:

For greater certainty, the Minister may not add to the schedule the name of a First Nation that governs its elections according to the custom of the band, unless such an addition has been approved in accordance with prevailing customary practices.

In other words, self-determination is protected within those first nations that have already decided that they will not opt in under the Indian Act. They will preserve that ability, which is enshrined in our Constitution and enshrined in the United Nations Declaration on the Rights of Indigenous Peoples and is therefore further protected under the Universal Declaration of Human Rights, which today has its 20th anniversary.

I appeal to my colleagues in the House to assess this amendment. It would preserve the right of first nations that are operating their elections under traditional custom to maintain those rights.

The second amendment would deal with this quite discretionary notion of protracted leadership disputes. We have seen instances when the Minister of Aboriginal Affairs, or DIAND, as it was in the past, decides that, for instance, the ministry does not like the way things are going, to use an example, in the first nations of the Algonquin of Barriere Lake. The dispute is real, and the minister ends up taking sides. That is hardly respect for a first nations' right to self-determination and self-government.

In this amendment, I propose that the minister may not take that step unless, having obtained the opinion of a representative sample of electors of that first nation, those within the first nation are satisfied that they need to have the minister take this step. Otherwise, we have made a mockery in Bill C-9 of first nations rights under our constitution.

We will again do so if we fail to change Bill C-15 for the first nations within the Northwest Territories and some that are affected in neighbouring areas of the Yukon, where the first nations in that area have competing land claims issues. The leadership of the Tlicho as well as the Dene and other nations are appealing to have the bill split apart so that we can proceed with NWT devolution without offending first nations rights.

There is a pattern here with this administration of, bit by bit, chipping away at some fundamental rights in this country that are constitutionally enshrined and further protected by international law.

With the amendments I am proposing, we could pass Bill C-9 in good conscience. We would know that we had contributed to good governance, fairer elections, and clearer terms. However, to pass it as it is would be an insult to first nations, and this House would be violating our own constitution.

Speaker's Ruling

[The Speaker, Conservative, Andrew Scheer]

There are three motions in amendment standing on the notice paper for the report stage of Bill C-9, an act respecting the election and term of office of chiefs and councillors of certain first nations and the composition of council of those first nations. While it is not usual for the Chair to provide reasons for the selection of report stage motions, in this case the Chair would like to provide a brief explanation.

As is the case with several standing committees considering bills, members who are not members of a caucus represented on the Standing Committee on Aboriginal Affairs and Northern Development were invited to participate in the committee's clause-by-clause consideration of Bill C-9. However, due to an administrative error, these members were not informed of the deadline to submit amendments for the committee's clause-by-clause consideration of the bill.

As members know, consistent with the note to Standing Order 76.1(5), the Chair would not normally select motions that could have been presented in committee; however, in light of the circumstances in this case, the Chair has decided to select these motions.

That being said, while the Chair certainly appreciates some of the challenges presented to members who are not part of a recognized caucus to follow the work of numerous committees, the Chair would nevertheless strongly urge all members to continue to ensure they are prepared to avail themselves of all opportunities presented to them with respect to committee proceedings on bills.

Accordingly, Motions Nos. 1 to 3 have been selected for debate at report stage. They will be grouped for debate and voted upon according to the voting pattern available at the table.

The House proceeded to the consideration of Bill C-9, An Act respecting the election and term of office of chiefs and councillors of certain First Nations and the composition of council of those First Nations, as reported (without amendment) from the committee.

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

Thank you, Mr. Chair.

I think it's important that we oppose this amendment for the reason that there is already a power for the minister. This is not a new power for the minister to restore recognized leadership in a community in rare and exceptional circumstances. That power exists already under the Indian Act in subsection 74(1). That allows the minister, whenever he deems it advisable for the good government of a band, to remove them from a custom code and place them back into the Indian Act process for elections.

If this clause is removed, the effect would be to continue to allow the minister to have the ability to move a first nation with prolonged leadership issues back into the Indian Act process, but it would not allow him to move them into this improved, more robust system that Bill C-9 proposes.

As was said in testimony, as we pointed out, this power to remove a first nation from their custom code when there's been an ongoing leadership dispute has only been used three times—twice under the Liberals and once under our government—and then it was done only when every other option, every other avenue, had been closed, where there was just no hope of resolution. The ministers of the day, under both the Liberal and Conservative governments, have acted in the best interests of community members. This is a rarely used provision, but we believe it is necessary because we believe that members of first nations who are experiencing a prolonged leadership dispute should come under this improved system, rather than being forced back under the Indian Act election system, which is a power that would be retained even if these clauses were removed from this bill.

[The Chair, Conservative, Chris Warkentin]

We'll call this meeting to order.

This is the fourth meeting of the Standing Committee on Aboriginal Affairs and Northern Development. Today we are continuing our review of Bill C-9.

With us today we have witnesses who have been asked for. We have the pleasure of having Brenda Kustra, who is from the Department of Indian Affairs and Northern Development, and we have Tom Vincent, who is from the Department of Justice.

We want to thank you for being here. We will turn to you if there are questions with regard to the legislation or the amendments that are being proposed. We thank you for being here.

Colleagues, it is my intention to move directly into the clause-by-clause consideration. I'm hopeful that everybody has the information they need in front of them, but we'll begin with the clause-by-clause consideration.

As is the practice of all committees, the short title will be deferred to the end of the consideration of the bill. We'll move immediately to clause 2.

Not seeing anybody seeking to move an amendment, I shall call the question.

(Clause 2 agreed to)

There is an amendment being proposed for clause 3, so I turn to Ms. Jones.

Welcome here.

(On clause 3—Order)

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

Good morning.

[Witness speaks in Cree]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you for your time and consideration today.

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

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

[Grand Chief Derek Nepinak, Grand Chief, Assembly of Manitoba Chiefs]

[Witness speaks in Ojibwa]

My name is Derek Nepinak. I'm grand chief of the Assembly of Manitoba Chiefs.

As grand chief of the AMC, I act pursuant to legitimately established mandates of the member chiefs of 60 first nations in Manitoba. I am obligated to adhere to that direction now, as were former grand chiefs of the AMC.

I make this point because it's apparent to me that politicians have been asked to provide personal political opinions as former grand chiefs on the merits of the draft bill, or to add the appearance of legitimacy and process and consultation to the draft bill. For the purposes of accurate reflection, however, it's important to understand that I, Derek Nepinak, am the grand chief of the AMC today, and I'll provide you with an informed opinion unencumbered by personal political agendas.

While I represent the AMC, there are distinct treaty groups or aggregates of treaty communities that wanted to make their views known to this committee. I will say that these communities have a right to be consulted on the intentions of government to create policies or laws that impact or could potentially impact, their exercise of section 35 aboriginal or treaty rights, more specifically, aboriginal or treaty rights to self-government or the pursuit of self-determination.

Within the membership of the AMC, there are approximately 37 first nations communities that hold Indian Act elections, which I'll refer to as section 74 bands, while the remaining communities hold their elections pursuant to custom codes. As I'll explain a little bit later, however, this point is not material, because under the draft legislation the minister has granted a broad discretion under ambiguous terms to bring both custom code and section 74 bands into the purview of the proposed legislation.

It is apparent from our review of draft Bill C-9 that it does not reflect the purpose of the mandate supported and advanced by the Assembly of Manitoba Chiefs throughout the engagement period. As we have become accustomed to witnessing as indigenous people, the federal government of the day is demonstrating a lack of good faith by setting aside our recommendations and its own representations and substituting a unilaterally developed bill that includes unwanted provisions and omits key recommendations.

As the bill stands, it includes essentially only one of our recommendations and fails to incorporate all others. The magnitude of variation between the Manitoba recommendations and the draft bill is such that it continues a breach of the trust that the first nations invested in the process and further undermines an already tenuous first nations and federal relationship.

More troubling to us is the federal government's repeated attempts to hold out the proposed legislation as something the AMC agreed to. This is simply false and misleading to the public. In 2010, the AMC chiefs in assembly supported specific limited recommendations with respect to election reform.

During the 2010 assembly, the chiefs reviewed presentations made by INAC officials at the time and passed a resolution supporting a four-year term, a common election date, and a local dispute resolution process. The discussions among the chiefs also included the development of a common first nations election code, developed by the first nations themselves, which could be adopted by each first nation that so chooses. The code in this context is not synonymous with federal legislation.

The resolution also contemplated referenda in each first nation, not federal imposition. This is critically important, because it is by way of referenda that community members have the opportunity to exercise a right of free, prior, and informed consent to the process. The option selected by the chiefs is the only option supported by the Manitoba chiefs, and only as described in our resolution form.

Beyond the omissions and the selective set-aside of recommendations in the draft bill, there exists a fundamental problem with revision, manipulation, or amendment to Indian Act terms or regulations. The fundamental problem lies in the continued denial of the existence of inherent rights of self-determination and self-governance of indigenous people. The premise that the Indian Act or any other legislation developed by federal governments presents the only solution is an affront to the original jurisdiction of first nations people and is an implicit denial of the treaty-based relationship.

In asserting this truth, I propose that indigenous first nations communities do not need, nor are they required to accept, federal legislative initiatives to effect improvement to election systems under the Indian Act if they so choose. Rather, if communities want to run a common election day with other communities, or extend their terms from two to four years, or develop local election appeal mechanisms, they can do so of their own accord, at their own pace, and within their own defined limits.

For the Government of Canada to create, amend, impose, and implement any law pursuant to section 91, class 24, that attempts to manage the relationship between Indians is beyond the scope of section 91 and is not only paternalistic, but it's a perpetuation of the unique brand of colonialism that Canada has now become too well known for.

For many first nations people, elections are equated with Indian Act governance systems. Many band governments continue to operate on the basis of the authority granted in the Indian Act because practical management administration and band moneys are tied to the Indian Act elected chief and council. Customary governance. in contrast, recognizes traditional social organization and means of selecting leaders and provides for broad community input for decision-making.

It is a fallacy to conclude that first nations communities face an either/or proposition on matters of contemporary community governance. In Manitoba there are 37 first nations who hold their elections under the Indian Act while 26 hold their elections pursuant to their own custom election code outside the Indian Act. This is, however, not the plenary of options to communities who invoke self-determining initiatives to effect self-government according to their own terms.

AMC did pass resolutions starting in 2009 specific to this exercise. AMC specifically stated in one of its resolutions that notwithstanding other Canadian jurisdictions, we develop a common election code that respects the authority and jurisprudence of each first nation and ensures our inherent right to self-government and to work in partnership with first nations communities to prepare referenda options for a province-wide referendum with potential timelines to be brought to the next chiefs in assembly in September 2009 for deliberation and decision.

Again, in 2010 we came together and AMC, through resolution, said to request the Minister of INAC fund and take the necessary steps to remove the electoral provisions of the Indian Act that apply to the election of chiefs and implement a new legislative election system affording four-year terms, a common election day and include flexibilities that can be adapted to community needs.

Bill C-9 does not reflect the discussions and the decisions made by the first nations leadership in Manitoba as it purports to grant authority to the minister to subjugate a first nation to the act without the consent of the people. We believe this to be ultra vires with respect to the minister, beyond the powers of the government to legislate. We find that in clause 3(b) of the draft legislation. This discretionary authority defeats the objective of the AMC recommendation that first nations retain their right to opt in. The clause would allow the minister to subjugate those bands that have previously opted out of the Indian Act to custom election procedures. This clause would allow the minister to subjugate bands to the Indian Act who have never been subject to the act, in violation of their inherent and constitutionally protected rights under section 35.

“Protracted leadership dispute” is not a defined term and leaves broad discretion to the minister. The AMC did not make such a recommendation.

The draft bill also purports to grant the authority to the Governor in Council to set aside an election on a report of the minister that there was a corrupt election practice in connection with that election. We believe this also to be ultra vires with respect to the minister. The AMC did not make such a recommendation. This preserves a broad discretion for the minister to determine that there were corrupt practice methods and criteria not outlined under the proposed legislation.

This is a key point. I will reference a recent case that happened in the Federal Court, Woodhouse v. the Attorney General of Canada, Bernard Valcourt representing the ministry of aboriginal affairs. The Federal Court judge found that Minister Valcourt did not establish guilt in terms of a corrupt election practice and his decision was set aside.

Although it's purported that the minister may hold the discretion to set aside an election, that is not clearly defined in law. For the minister to exercise that type of discretion requires certainly a step-by-by step process that he is clearly trying to clean his hands of by delegating or removing himself from the election appeal process, which is another thing that we did not agree to or recommend as the assembly.

The legislation purports to grant the authority to the Governor in Council to set aside an election on a report of the minister that there were corrupt practices in connection with that election. I make this comment as well in contrast to established Canadian law in the Norway House Cree Nation case, Balfour I believe is the case name, where a community finding of a corrupt election practice in the Norway House Cree Nation was upheld at the Federal Court.

On the one hand, we have the minister setting aside a decision on a corrupt election practice and losing in Federal Court, and on the other hand, we have a community code defining what a corrupt election practice is and having that upheld in the Federal Court. The idea that the minister can purport to have the best interests of communities in mind in exercising a discretion that he has, that he retains under the act, to me is a fallacy because we have already proven in the Canadian courts of law that the minister may not have the mechanisms in place to effect the decision according to Canadian law. We believe that was proven in October 2013 in the Woodhouse case in Manitoba.

Another challenge with the draft law is it does not provide Manitoba first nations with the policy of adopting a common election day and an extended term of office. The bill has a quasi common election day that does not mirror the recommendation of the AMC. It also restricts appeal processes to external courts, and this denies access. Referring appeal processes in elections to Canadian court systems denies access to those people who cannot afford to bring an application into a Canadian courtroom under Canadian jurisdiction. That is a truth. Statistics are out there that people who are forced to go to Canadian court systems are denied access on the basis of financial resources.

The bill also does not provide for the creation of a Manitoba chief electoral officer or provide for the appointment of electoral officers by band councils without requiring the minister's approval. If this bill is purported to create self-government or enhance self-determination, why are so many checks and balances in place that need to be vetted through a minister? That seems to be the opposite of what we're trying to achieve.

In conclusion, Bill C-9 is easily characterized as an extension of limited delegated authorities under a paternalistic Indian Act. It is apparent that notions of self-determination and self-government are viewed by the drafters of the legislation as powers that are given or granted to first nations by the federal government.

Manitoba first nations view self-determination and self-government as inherent rights and selection of leadership as fundamental to self-government, included in the suite of self-government rights.

Our right of self-government is self-evident; moreover, it is entrenched in section 35 of the Constitution. Notwithstanding, the federal government continues to propose legislation that is designed over the long term to terminate the existence of status Indians while confining first nations governments within narrowly construed delegated authorities and powers at the discretion of the minister.

Imposing legislation on first nations people pursuant to the Indian Act in this manner perpetuates the federal government's unilateral interpretation of first nations self-government. This approach is inconsistent with our inherent rights, international law, and declarations endorsed by Canada.

The proposed legislation is simply an addition to the Indian Act, citing the same authority and the same definitions granting broad additional powers and discretion to the minister and his office. The legislation mingles only one recommended change from the AMC and the illusion of another. The resulting product is another piece of federal government-owned legislation that perpetuates Canada's self-proclaimed authority over indigenous people.

We live in an age when we should be beyond this type of thinking, ladies and gentlemen.

Thank you.

[The Chair, Conservative, Chris Warkentin]

Colleagues, I will call this meeting to order. We have delayed starting because we're looking for one witness who was intending to be here. Hopefully she'll show up partway through.

Colleagues, today we continue our study of Bill C-9. Today we have the privilege of having at this point two grand chiefs with us. We have Derek Nepinak, who is a grand chief, as well as Craig Makinaw.

Thank you so much for being here. We appreciate your both coming and your being willing to testify on behalf of your communities with regard to this particular piece of legislation.

What we'll do which is common to our committee is turn it over to our guests and hear from them for about 10 minutes each. Then we'll begin with rounds of questions.

To begin, we'll turn to Grand Chief Nepinak.

Again, thank you for being here. We'll turn it over to you for the next 10 minutes.

[Chief Donovan Fontaine, Sagkeeng First Nation]

Good afternoon, honourable members and colleague chiefs. Good afternoon everybody.

I'm here on short notice, so excuse my tardiness. I don't have a presentation that's formal, but I could submit one when I get back home.

I want to thank my colleague chief for having me as part of this, going back to 2009, and being here today. So thank you, Chief Evans.

I don't know where to begin because, as I said, this was a last-minute thing last night. So I'm going to speak off the cuff, and that's fine that it's on record.

Where do I begin? Our community had a referendum in 2009 on whether we should have an election code and whether it should be every four years. It was unanimous. Our community endorsed it and supported it. Over 80%, I do believe, supported a change to our two-year term. I also supported the resolutions at the Assembly of Manitoba Chiefs level, which Chief Evans just spoke about, so there was a good consensus and a good group there.

That group is not there today, but the resolution is still there, and the mandate that the current grand chief has must respect those past resolutions. To say whether or not he's in favour of this is a moot point. He has to be driven by those resolutions.

Obviously we're here for Bill C-9. We're here because of the election system that we didn't create. I don't want to call it a mess, but I didn't create the system; I was elected into it. Our community signed a treaty in 1871. It was a hereditary chief, and then his son took over for another 27 years, so I don't know when the amendments were made. You have to excuse my chronology of events here, but there were amendments to the Indian Act, and then we had elections in the community. That's the system we have been under since.

I support this for the very reasons you heard my colleague talk about: stability and continuity in community, so you can advance community comprehensive planning and you can advance economic development. That's the primary reason I support that.

But the catch here—and I think it's a catch-22—is that if I support this, and if leadership supports and drives these initiatives, it's pretty quickly turned around by people saying we're self-serving, we're looking after ourselves, we want a four-year term, we want to be in office longer, and we want power longer. So we turn it and we give it back to the grassroots. We give it back to the people and say, “You develop the code; you develop the process”. More often than not, these things sit on the shelf. We had about three or four election codes, and they sat on a shelf for years. We got funding from the government to develop these, produce them, and take them to our community. They weren't perfect by any means. Neither is this bill. There is some good and there is some bad in here, but at least it's taken us out of the two-year system.

Can you imagine the U.S. government—Canada even—being in constant election mode every second year? I've watched the American channels. It's crazy. They are already talking about elections, the year right after the election. It's just crazy. In our communities where there are families, close ties, and factions in groups, I would say it's even more confrontational. There's bitterness. It's not healthy for communities to be in constant election mode every second year.

You want to talk about austerity budgets. You want to talk about tightening the belt. Every second year in our community is election year. What do you think our leadership's going to do? Will they say no to every request? They become more laissez-faire and more lax, and they say yes to requests. Otherwise they're out the door, right? That's not to take away from the good leadership that does say no and just drives the community economic development plan and gets elected based on its track record of success.

But there are some out there who can't do it, so they spend, and keep putting the community back to square one again the next year. It's just a vicious cycle. Here we are trying to administer poverty...administer social programs. For me to keep track of all these bills, I can't do it. I can't go to my community and consult on every bill. I was inundated with all these bills coming through from the government in the last three or four years. I can't take every bill to the community—the omnibus bill, this, that, the water bill, everything else. My hands are tied with administering the crumbs, so to speak.

I can't consult on every line here, and I can't read between the lines on everything, but I do know there are some good things in here. I like the recall mechanism. I think we do need a recall mechanism.

How do we handle this? For example, if you have a community of 300 people, 60% of them are one family. You're probably going to have that person from that family elected all the time, but that's no different from the government system. You've got your corporate people, that's a family; you've got your middle-class taxpayers, that's a family; and you've got your lower-end poor people, that's a family too. They're elected based on certain things, so you can't say the big families. There are corporate families in Canada and they drive the political agenda.

I don't know what the appeal mechanism would be, what the answer is, but I do know if there is room in here for communities to fine-tune it themselves, have a recall mechanism, perhaps have a review after two years, saying, “Here's the plan you were elected on, here's the community vision you said you were going to deliver”. Two years later we'll have a look at it and if they didn't deliver, sorry, they're out the door.

There has to be some kind of mechanism because the community can be handcuffed for four years with incompetent leadership. That's the danger I see. It puts the onus back on the electorate. You have to put good people in there. But then if you have big families putting the people in, you could say it's their own choice. They're living in the community.

So it fixes itself, in other words. We don't have to worry about how these people are elected as long as it's fair, it's democratic, and they respect Corbiere and Gull Bay. I'm okay with it.

Chief Evans talked about custom. That system is good as well. As I said, we had our hereditary chief. It's not to say that those systems weren't democratic in our communities. We had patriarchal, matriarchal societies throughout this land and those were really good democratic models. Women took a lead role in leadership. There were ways to whip your leadership into line, so to speak. I don't think it's any different from what we're proposing here.

To give a little historical context. I talked about imposition on all these amendments, where we had no say, or at least involvement, in drafting them. it goes back right to day one when we signed our treaties. We had trading posts in our community: Hudson's Bay, the North West, these people had a very strong influence on our community. Our people couldn't leave the reserve to make a living. You were bound and at the mercy of the trading companies. Fort Maurepas, Fort Alexander, Port at Morris, about four or five forts in our community controlled everything. On top of that we had the church: Anglican, Catholic, and again, controlling families, based on family names, and there were competitions. They also played roles in our leadership. They drove the agenda. If you weren't a churchgoing, devout Catholic they were going to support somebody else behind the scenes.

So there is always that outside influence in our community. This, again, I see as an imposition. However, is it better than what we have now? I would say so, based on having four years' stability, putting the onus back on the community to put good people in there.

So thank you all.

[Chief Ron Evans, Chief, Norway House Cree Nation]

Mr. Chair, I want to acknowledge my colleagues who are here with me to present to the hon. members.

With all due respect to Mr. Bevington, I am the Chief of Norway House right now, although that says “Grand Chief”. I am no longer the Grand Chief, but I hope I can still garner his respect, as well as that of all the members, which is precisely why you should support this bill. That is the attitude out there when there is a change. That's not the position any longer.

I am very pleased to have been invited to testify to the House of Commons standing committee on aboriginal peoples to speak on this important bill before us, Bill C-9.

As the former Grand Chief of the Assembly of Manitoba Chiefs and the current Chief of Norway House Cree Nation, I am pleased to provide support for Bill C-9, the first nations elections act.

Although this bill does not directly affect my community of Norway House Cree Nation, as we have enacted a custom election code that already gives us four-year terms, this bill is important for those 37 first nations in Manitoba and the 240 first nations in total across Canada whose elections are governed by the Indian Act.

Years of hard work and commitment stand behind this bill. Bill C-9 will change the way first nations are governed, create stability, strengthen self-governance, and allow first nations to move forward.

I would like to thank the Minister of Aboriginal Affairs and Northern Development for his position on it, and the departmental staff for their commitment to supporting this very important initiative, and hope that each of you, as our representatives in the House of Commons, sees the urgency and importance in supporting this bill.

I would also like to thank the Atlantic Policy Congress of First Nations Chiefs for their partnership in undertaking the national engagement process in 2010. During my time in my former role as Grand Chief of the Assembly of Manitoba Chiefs, we reached out, in collaboration, to first nations across Canada to discuss the groundbreaking work that both of our respective organizations had done to improve the electoral system for first nations whose elections are governed by the electoral provisions of the Indian Act.

The first nations elections act provides some constructive provisions that will strengthen the election process and governance of first nations, including a longer term of office, from two- to four-year terms; and a common election day where all first nations who opt in to the first nations elections act will eventually be elected on the same day. This type of general election adds a more robust and transparent nomination process for candidates, fair and sound penalties for offences, and most importantly, an independent process for the first nations elections act.

Let me just remind you of our history in Manitoba, when we had the framework agreement initiative, the FAI. Over $60 million to $100 million was spent over a 10-year period. At the end of 10 years, of those who had signed on, I believe there were only a handful of leaders when the FAI was concluded who had started out in the process, and therefore the new leadership was not aware of what the understanding and the direction was. As a result, the whole initiative failed, and that cost millions of dollars simply because of the high turnover of leadership.

The current Indian Act election system is not working. It is proven to be weak and creates instability for our communities and their economies. It has prevented first nations from moving forward on important projects and initiatives such as economic development, and on important infrastructure developments that are vital for communities, their well-being, and their quality of life.

With the current two-year term of office, our research and experience has shown that newly elected chiefs and their council members have little time to learn their responsibilities, build the necessary relationships, and develop or complete the necessary projects and initiatives before it's time for another election. In any given month, leadership in one or more of the band councils in each province is changing due to an election. Constant changes to band councils cause major disruption to the important plans and projects being worked on in the community, as I just finished describing. This political instability makes first nations very unattractive to long-term investment and economic development by both internal and external entities.

It is important to note that the vision of a four-year term of office, a central component of this initiative formerly known as the common election day initiative, is not a new concept.

This vision was first articulated by the leadership of the Manitoba Indian Brotherhood in 1971, in Wahbung: Our Tomorrows, a document that has inspired our leadership ever since it was written because it strikes at the very heart of our sustainability and self-governance.

Wahbung is a visionary document that was created by the Indian tribes of Manitoba expressing the position and policies to achieve honourable and mutually satisfactory relationships between Canada and the Indian people of Manitoba. Wahbung is referenced by the leadership of today to guide us in the work we do and to respect the work of the past leadership.

In reference to governance it is stated in Wahbung that the method of elections must be left at the discretion of each community. It is recommended that the terms of office of elected chief and council be extended to four years. That's going back to 1971.

The ultimate goal of all first nations is to be self-sustaining and self-governing. Creating an electoral system that is accountable, transparent, and driven by first nations is essential in creating stability and credibility within first nations governments and will strengthen first nations governance in Canada. These changes will benefit all first nations, will improve and strengthen first nations governance, and will allow first nations to move forward in a positive and progressive manner.

In 2009, The Assembly of Manitoba Chiefs, as mandated by chiefs in assembly via resolution, researched and discussed changes to first nations' election systems with first nations leadership, technicians, and first nations people across Manitoba. I personally went and met with these communities, with the grassroots people themselves in those communities. This initiative was coined “the common election day initiative of electoral reform”. As part of this initiative, engagement sessions were held within the leadership and with community members of the 37 Manitoba first nations that hold their elections under the section 74 electoral provisions of the Indian Act.

The engagement sessions held were extremely significant, informative, important, and valuable as we gathered thoughts, comments, and recommendations on how to improve the election system for first nations governments. The input received from the community engagement sessions was carefully considered in crafting recommendations to then-Minister of Indian and Northern Affairs Canada, now Aboriginal Affairs and Northern Development, to develop an improved system for first nations elections.

The feedback we received from the communities supported the call for a common election day for first nations to opt in to the new legislation and a four-year term of office, along with an appeal and recall process.

This however, would not be mandatory. It would be the prerogative of each individual first nation to decide whether they want to opt in to the first nations elections act. With the support of the Minister of Aboriginal Affairs and Northern Development Canada, departmental staff, and in partnership with the Atlantic Policy Congress, we were able to undertake a national engagement process in 2011, while I was in my former role as grand chief of the Assembly of Manitoba Chiefs. This allowed us the opportunity to discuss with first nations in other regions across Canada the groundbreaking work that our organizations had done in collaboration to improve the electoral system for first nations currently under the Indian Act.

As part of this national engagement process I had the privilege of meeting with the first nations leadership across Canada, engaging them in discussions on how we could make this a reality together. We extended the opportunity for the leadership and the members who participated in the engagement sessions to provide their recommendations and feedback with respect to improving the electoral system for first nations.

Both the first nations leadership and members also shared with us their challenges stemming from the inefficiencies of section 74 provisions that have detrimental impacts on first nations people and communities.

The engagement sessions proved to be successful as we received positive and supportive feedback from the leadership in British Columbia, Alberta, Saskatchewan, and Ontario. The Atlantic Policy Congress engaged the eastern provinces and received the same positive feedback with consistent recommendations. We also used social media, urban forums, and our respective organizations' websites to ensure that individuals across the country had the opportunity to engage and provide feedback and recommendations no matter where they lived.

After this information was gathered and reported to the department, the next step was to work together with the department to craft the proposed legislation before you, which is Bill C-9.

This important, groundbreaking, and historic initiative has been many years in the making. A concept born in the 1970s is finally closer to reality thanks to the hard work and determination of the Manitoba first nations leadership, the Atlantic Policy Congress, and through the hands of now four ministers of Aboriginal Affairs and Northern Development.

I want to acknowledge and thank those former ministers, the Hon. Jim Prentice, the Hon. Chuck Strahl, and the Hon. John Duncan, and now the Hon. Bernard Valcourt, as well as the respective staff, each of whom deserve ample credit and thanks for their ongoing support and commitment and for their every effort in ensuring this initiative would one day become a reality and legislation.

Once again I would like to express my absolute support for Bill C-9. I hope that in this session of Parliament you as our representatives in the House of Commons as well as our representatives in the Senate understand the importance of this bill, and that you provide your support to ensure that first nations governance can be strengthened, and that you be part of making the positive and necessary legislative change that is supported by many first nations in this country.

Thank you, once again, for the invitation to participate in today's standing committee proceedings.

Ekosani.

Thank you.

[Chief Dean Vicaire]

Rob Clarke made some valid points and had personal experiences in his former position. Perhaps the leadership in the first nations community can ask the minister to step in. That way, it speaks to the first nation still having control and it has the minister step in when—and only when—requested. That's just an idea.

Although the APC did not recommend that a new election regime allow for a common election day among first nations, it appears that the provision in the bill that allows a minimum of six first nations to line up their terms of office is gaining interest among many of our first nations. I'm sure John will speak to this point, which is that we're in the perpetual motion of the election mode throughout first nations. Every month, I believe it is, it continues. It's like a bad nightmare.

I will speak to some of the elements of Bill C-9 that have been commented upon and debated in the past.

One is the new opt-in legislation by band council resolution. The APC recommended that individual first nations, if they so choose, could opt in through a band council resolution. We debated a great deal on whether it would be preferable for the opt-in mechanism to be a referendum. We reached the conclusion that although it is certainly an effective way to determine the will of the community, it is simply not cost effective to consult the community in this fashion on all issues.

Moreover, our experience with community votes is that first nations voters tend to favour the status quo. Therefore, requiring a referendum to move to the new election regime would in effect act as a huge barrier for first nations to reap the benefits of the four-year terms, which is what we are trying to achieve. Even though a referendum is not required, our chiefs have told us that they would not make this type of decision without first engaging in some substantive way with their community members on this particular question.

The second element, of course, is the term of office for band council members. The APC recommended that the new election legislation provide terms of office of four years, making them comparable with most other governments in Canada.

The Indian Act, in requiring elections every two years, has created conditions of instability and has fostered divisions in first nations communities. Most often, the two-year term of office is too short to provide political stability for first nations governments to plan for and implement long-term initiatives and to build a proper foundation for community development before they face re-election.

Being a newly elected chief of a year and three months, I can certainly attest to that.

The two-year term is especially difficult and challenging for those elected to a band council for the first time. New chiefs and councillors need time to learn about their responsibilities and the various projects that require their attention. Projects are often put at risk by the two-year election cycle and the related high turnover of elected officials. Time and focus are key for economic prosperity and change in our communities, to allow leaders more time to implement the vision that will help all communities and increase their ability to show progress and results.

The third element is the appeals of band council elections. Under the Indian Act, election appeals are received, reviewed, investigated, and decided upon by the minister and his department. Numbers given to us by the department show that 30% of all elections under the Indian Act have been appealed, which amounts to 40 elections per year, give or take. Each year, usually no more than five of the appeals result in the overturning of an election. Very few of these occur in the Atlantic region.

These numbers illustrate a fundamental problem with the way appeals are currently dealt with. In close to 90% of the appeals launched, the allegation of wrongdoing is either unfounded or is deemed not to have affected the outcome of the election. The problem is that it usually takes months, if not over a year, for these conclusions to be reached. While an election appeal is outstanding, it is very difficult for a band council, whose very election is called into question, to govern effectively, to make long-term plans and key decisions, and to initiate projects.

We think the problem lies in the fact that the appeal process is simply too easy to engage in by community members whose motives may be questionable, and we also think that the role of the minister in investigating and deciding upon election appeals is a paternalistic and inappropriate intervention in the internal affairs of a first nation.

We need a more rigorous appeal system that does not afford a role for the minister, while at the same time ensuring that frivolous—to use his word—or unfounded allegations do not engage a lengthy appeal process that hampers the first nation's ability to govern.

The APC initially recommended that the role of the minister and his department in election appeals be eliminated in favour of the establishment of independent tribunals.

We are comfortable with the election appeal process in Bill C-9. The courts decide election appeals, impose penalties, and overturn results in municipal, provincial, and federal elections. They could play this same role in first nations elections.

In conclusion, this submission on Bill C-9 to the Standing Committee on Aboriginal Affairs is based on our analysis of how well Bill C-9 responds to the recommendations put forward by our organization when we engaged our first nations members on the issue of elections. We have called for the design and implementation of a new opt-in first nations election act and resulting regulations that would provide an effective and modern system for governing elections for the opting-in first nations.

As evidenced by the recommendations, first nations are interested in having free and fair band council elections that support stable, effective, and accountable first nations governments, as well as supporting the individual rights of their members.

We thank you for providing us with this opportunity to hear the reasons why we support this bill. We ask that you lend your support as well. We strongly believe that all first nations in Canada need other options for addressing these important and pressing governance matters that are currently facing their communities.

Thank you.

[Chief Dean Vicaire, Executive Co-Chair, Atlantic Policy Congress of First Nations Chiefs]

Thank you to all in the room for giving us the opportunity to once again express our opinions with regard to Bill C-9.

My name is Chief Dean Vicaire of Listuguj First Nation and the co-chair of the Atlantic Policy Congress of First Nations Chiefs. With me today is my colleague, John G. Paul, who is our executive director, and we are here today to speak on behalf of the Atlantic chiefs regarding our support of Bill C-9.

Our member chiefs do support Bill C-9 as it currently stands. We feel it reflects the recommendations in a resolution we adopted in January of 2011 asking the minister to draft legislation that would present a strong alternative to the Indian Act election system.

One of the reasons we decided to champion electoral reform is because at 75%, Atlantic Canada has the highest percentage of first nations that hold elections under the Indian Act system. We believed that if we could build a better election system, the majority of our first nations would immediately benefit. We first became interested in election reform in October of 2008, when we passed a resolution asking the minister to amend the term of office under the Indian Act election system from two years to four years. As we continued to discuss this change, both amongst ourselves and with what was then the Department of Indian Affairs, we realized that the Indian Act election system had other fundamental weaknesses that needed to be addressed. The department's willingness to support further discussions on this matter presented an opportunity to elaborate a more extensive reform.

At the current time, approximately 40% of first nations in Canada hold their elections pursuant to the Indian Act. Those election provisions are outdated and problematic, to say the least. Not only did we hear this when we were engaging with our own constituents on this question, we also heard it when we were discussing our recommendations with first nations groups in other parts of the country.

Specific issues centre on the following:

The term of office for elected band councils under the Indian Act is two years. This short length of term places first nations communities in an almost continual state of electioneering, and it undermines the band council's stability, as well as their efforts to develop long-term projects.

A weak process for the nomination of candidates can result in the nomination of many candidates. As the Minister of Aboriginal Affairs clearly said earlier, there are sometimes over 100 candidates for one election. That, indeed, happens constantly in my community.

The mail-in ballot system is open to abuse.

The appeal process to the Minister of Aboriginal Affairs and Northern Development is paternalistic, complicated, and often takes too long to produce findings and a final ruling.

The absence of defined election offences and associated penalties under the Indian Act allows alleged cheating and other related activities, such as the selling and buying of votes, to go unpunished.

As I mentioned earlier, the APC has taken a keen interest in looking at ways to stabilize and improve upon first nations governance through a stronger and more modern election system. With the support of Aboriginal Affairs and Northern Development Canada, the APC undertook research on the issue of band council elections. After having heard from first nations leaders, governance technicians, and community members in their respective regions, we came forward with our recommendations.

I would like to outline for all of you how we went about developing these recommendations.

We struck a working group to conduct research and develop options. We published articles in a widely circulated first nations newspaper, the Mi'kmaq Maliseet Nations News, and we developed a Facebook page, both of which invited first nations members in the whole region to share their views and complete a survey. The working group presented their research, options, and all the feedback to a group of governance experts and electoral officers and, of course, the chiefs themselves. Based on all the discussions and feedback received, we arrived at the definitive recommendations that we submitted to the minister.

I want to share with you our recommendations that are reflected in Bill C-9.

The APC recommended the development of brand new opt-in first nations election legislation and further provided recommendations for its content. For the most part, these recommendations are reflected in Bill C-9. Bill C-9 contains some of the same rules as the Indian Act election system along with some important differences, which are the following:

The term length is four years, instead of the two-year term that exists under the Indian Act system.

There are defined qualifications for candidates for chief and clear rules around the nomination process.

There are clearly defined offences and penalties that will deter questionable election activities, especially those that take place around mail-in ballots.

Finally, the minister is not involved in election appeals.

I'm going to stop there and share my thoughts, which I shared with some people I spoke with during the suspension.

The minister does indeed have a valid point with regard to leaving that void, having courts get involved in policies. At the same time we all understand that the minister has these overriding powers that are contradictory in terms of a paternalistic viewpoint.

I'm sharing with John and some of my other colleagues around the table. Since it's an opt-in choice for communities, perhaps we can correct the legislation or make an amendment that upon written consent or request from the individual first nation, the minister can step in, for instance if there's wrongdoing in one of the four or five issues that we've talked about.

One of the members here.... I'm sorry I've forgotten your name.

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

Thanks very much, Mr. Chair, and thank you, Minister, for coming before us.

We think this is an excellent example of bottom-up legislation. A lot of first nations have come together to bring this forward to you. Most other first nations we've talked to have seen this bill as basically positive as long as it remains optional legislation. As my colleague pointed out, although Bill C-9 is basically optional, clause 3 clearly provides you with explicit powers to bring first nations currently under the Indian Act or custom code under Bill C-9, which flies in the face of the optional nature of this bill, and it seems to be the primary source of concern for most first nations.

You said in your opening remarks:

This is paternalistic and frankly not a business I think that the minister should be in. This bill would remove the minister from the equation—and would ensure that appeals are dealt with by the courts....

You get that the minister shouldn't be in this business, but clause 3(1)(b) and (c) puts you right back telling first nations what to do again.

Will you remove this clause? It was almost right, and then you put this thing in and alienated all the people who were your original partners. You had a partnership and now they're annoyed. Neither protracted leadership dispute nor significantly compromised governance is defined in the legislation. We're back to the whim of the minister, and you have a very broad discretion about where you can intervene.

Minister, would it make more sense to just remove that one piece and let us get on with the bill, as was the original intent? From the AFN and Regional Chief Wilson-Raybould's testimony, there's a consensus: just get this little piece out and we'll help you get your bill.

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

If the first nations wish to abandon this inefficient, paternalistic, and unaccountable Indian Act election framework, under Bill C-9 they would have to follow a relatively simple process.

First, the band councils—I'm sure, because that's the way I see them operate—would consult their own membership. And then they would have to adopt a resolution that would be forwarded to the department, whereupon an order would be made designating the band under the new act and setting the first election date. It's as simple as that.

Historically, we know there have been two ways to opt in to federal legislation relating to aboriginal affairs: a band council resolution or a referendum. Now, the referendum option was considered, but it did not garner much support with the first nations that participated in the consultation process. And because of the experience of first nations, we decided that we'd rather go with their preferred course, which was the resolution and not the referendum.

However, to get out of it once you are under this, the only way you can go is with a custom system that they can do, provided, again, it meets the requirements of the policy in that regard, which ensures that the custom system must respect the Charter of Rights and Freedoms. To get out of this act, this new bill, they would have to go through a referendum that must garner the support of the majority of the electorate in which 50% of eligible voters participate, and it must then be published in either the First Nations Gazette or on the website maintained by the first nation.