Indigenous and Northern Affairs Committee on March 19th, 2013

[The Chair, Conservative, Chris Warkentin]

I call to order the 64th meeting of the Standing Committee on Aboriginal Affairs and Northern Development.

Pursuant to the order of reference of Wednesday, December 5, 2012, we are continuing our study of Bill C-428, An Act to amend the Indian Act (publication of by-laws) and to provide for its replacement.

Today we have the privilege of having one of our own committee members testify before our committee as the proponent of this private member's bill.

Mr. Clarke, we'll turn it over to you for the first 10 minutes and then of course we'll begin our rounds of questioning. Please go ahead.

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

Thank you, Mr. Chair. Thanks, everyone on the committee, for being here today.

It's a great honour but, unfortunately, the weather isn't great, so I'll let Carolyn get settled in before I start.

Is that okay, Carolyn, or should I start?

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

Please start. I'm ready.

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

I believe in my traditional values, one being a first nation person. It's an honour to be here speaking on such a sensitive issue as the Indian Act. Hopefully, once we have finished this meeting today, you will get a better picture of what I'm trying to do.

Mr. Chairman, members of the committee, and guests, I'm honoured to be here today to open the committee's study of my private member's bill, Bill C-428, the Indian Act Amendment and Replacement Act.

As a proud member of the Muskeg Lake Cree Nation and a parliamentarian, the opportunity to sponsor a private member's bill comes along very rarely. I was lucky to be picked in a lottery to bring my bill to Parliament and I take this opportunity very seriously. The reason I'm doing this is in fact the reason I got into politics.

I spent almost half my life living and working on reserve. I was born under the Indian Act and no doubt will die under the Indian Act, but I don't want the Indian Act to follow me to my grave.

As a veteran of the RCMP, with over 18 years of service, I spent the majority of my policing career living and policing on reserves. What bothered me was that I had to enforce this 137-year-old Indian Act and saw daily the impact that this antiquated, paternalistic, and racist legislation had on grassroots band members.

As a representative for Desnethé–Missinippi–Churchill River, a riding having almost 23 first nation communities and the second largest first nation population in Canada, I'm very aware of the challenges posed by this outdated, colonial statute we refer to as the Indian Act.

The problems created by this archaic piece of legislation are far reaching, extending to every aspect of our lives as first nations, and are the root causes of the Attawapiskats of our country. Indeed, we heard every single candidate for chief in the 2012 Assembly of First Nations election say that the Indian Act must go. Virtually every leader of first nation communities across Canada said that the Indian Act must go. And experts from across the political spectrum all say that the Indian Act must go.

In a November 9, 2012, interview the current national chief, Shawn Atleo, said:

Yes, the Indian Act and the Indian Act bureaucracy must be fundamentally and finally eliminated.

The Indian Act is completely contrary to Canadian values and stands in the way of our progress and success as first nations, and has done so for generations. In fact, this legislation treats those of us who live under the Indian Act as second-class citizens.

This legislation was put in place in 1876. It served as the model for South African apartheid, and it really has no place in Canada in 2013 or any other time in our history. It remains a blemish on Canadian society and must be rectified.

Let me talk for a moment about the connection between apartheid and the Indian Act. In an article by South African lawyer, Gary Moore, he sets out the following details:

In 1913 the young Union of South Africa enacted a native land act. The act prohibited the sale or lease of scheduled areas of land reserved for natives to whites. It prohibited natives from acquiring land outside reserves. Reserve land was mostly Crown land. Natives were left in occupation, and native systems of land tenure continued. In 1936 a Crown corporation was created, the native trust, to purchase additional areas released for native occupation. In 1927 South Africa passed an act for native administration generally. It declared the governor-general to be “supreme chief” of natives in most provinces. He had power to appoint and remove chiefs, divide and amalgamate tribes, and punish offenders. His actions as supreme chief were not cognizable by the courts. The act gave the governor-general power to make law by proclamation for native reserves. Proclamations provided for the administrative grant to natives of permission to occupy residential sites and arable allotments in reserve settlements and locations, with restricted tenure and disposal rights. The governor-general could make regulations for such purposes “as he may consider necessary for the protection, control, improvement and welfare of the natives, and in furtherance of peace, order and good government”.

That's “POGG”.

There were special rules and regulations for succession to property of deceased natives. Regulations forbade whites to enter native reserves without a permit. There were regulations restricting the number of shops a native shopkeeper could open in a reserve. Native administration was under the minister and department of native affairs. The department was a vast empire in South Africa on its own. A 1951 act provided for tribal authorities each comprising a chief and his council. A 1953 act vested control of native education in the central government.

Does this sound familiar? It should:

It is said that before South Africa enacted native administration laws it sent officials to Canada to study the reserve system provided for in Canada’s own Indian Act.

However, for all the abuse that South Africa has rightfully had dumped on it because of apartheid, in 1994 that system was finally removed from law. Yet here in Canada the Indian Act, which came well before apartheid, still exists almost 20 years after the demise of apartheid: 20 years.

I must ask the members of this committee, is this the kind of law we wish to see in the books in 2013?

I truly believe there's a consensus to replace the act. The real questions are, how should that happen, and what will replace it?

When I submitted my bill in its first version in December of 2011, I asked for a full repeal of the Indian Act. What I wanted to do was start a serious discussion and debate about getting rid of the act—and here we are today. I believe I've done that, and accomplished that.

In subsequent discussions with first nations leaders and grassroots members, I was told that the wholesale elimination of the act could inflict unintended collateral damage. It could also place fiduciary responsibility on first nations communities unless there was careful consideration of the effects of each and every clause, and of course they want to know what we'd replace it with.

My goal was to ask my first nations leaders and grassroots to engage with the crown to come up with these solutions. In speaking with our first nations leaders and grassroots members, and after three draft versions of the bill, I arrived at the current and fourth version.

I know there are those who question my right to do this. There are even those who have said the entire exercise must be done by indigenous, for indigenous, people. So I agree, and here we are.

As a parliamentarian and an aboriginal person, I've heard repeatedly that I have no right to bring this bill forward like any other parliamentarian.

There are even those who have said:

I am afraid that a backbencher's private member's bill is not an appropriate consultation for this very serious relationship with first nations in this country.

Well, I believe it's my responsibility to do it. It has to be done. The time has to be now.

I also know that there are some who claim that this bill cannot have been put before the House of Commons without a formal consultation process. Those very same people clearly know that a private member's bill in the House of Commons does not have the financial or human resources for me to conduct a full-scale consultation, nor is it permissible to share a bill with anyone until it is tabled in the House of Commons.

Nonetheless, I have been engaging and reaching out to first nations on the Indian Act for years, and I have seen with my own eyes the harm this legislation has done. Bill C-428 is designed to mandate development of a process in which first nations and crown can work together on ways to review, repeal, and replace the Indian Act.

Finally, there are those who have specific concerns about the content of the bill itself. I'm here to say that I'm open to amendments that move us closer to the repeal and replacement of the Indian Act, and I'm also open to amendments that make the bill closer. What I hope to see is an open, frank discussion of this bill that bridges partisanship. For me, it's not about the Conservatives or the Liberals or the NDP, and not about partisan ideology, but about starting a process that could transform the lives of so many first nations people, especially the younger generation.

In addition to the mandate of the Minister of Aboriginal Affairs to produce an annual report on the progress of the repeal and replacement of the Indian Act, in collaboration with first nations, this bill will bring a number of changes to the Indian Act. These changes are housekeeping in nature and are designed to remove the underbrush from the act, but they also speak about the goals of the bill.

The true intent of the Bill C-428 is to create and aid freedom and independence for first nations. This is the motivation behind the changes to the bylaw process, wills, and estates sections of the act. These changes will remove the Minister of Aboriginal Affairs from the process and return control of bylaws, wills, and estates to the communities, where they belong.

In addition, a number of sections of the bill remove outdated, antiquated, and unenforced sections of the Indian Act. These sections cause delay. I'm sure we all agree that it's bad policy to leave in these laws and things that there is no intention of ever enforcing.

An example would be the section of the Indian Act that prohibits the sale of agriculture products grown on reserve to anyone off reserve without the permission of an agent of the Minister of Aboriginal Affairs. This section of the act has been waived for a number of years and therefore is not enforced. Imagine a Cree farmer growing corn and not being able to sell his corn without the permission of the Minister of Aboriginal Affairs. It kind of reminds me of a first nations wheat board.

Another section that would be almost as laughable, if it were not so paternalistic and patronizing, is section 92, which prohibits missionaries, aboriginal affairs employees, and reserve teachers from trading with first nations under the Indian Act.

A more insulting and hurtful section of the act is the one that has established residential school systems. My grandparents attended residential schools, so this is very personal to me. I am sure no one here would want to see residential schools again in Canada. A heartfelt apology to aboriginal Canadians who survived the system was made by Prime Minister Harper on behalf of all Canadians and all the other political parties in the House. There is no moral policy or reason to keep this law in the books.

To go back to the two essential questions, they are: how shall we deal with the Indian Act review, repeal, and replacement, and what should be in its place? I can't answer these questions alone. That is why we're here today in committee: to seek these answers. I'm sure we each have our own ideas about what a respectful and modern relationship between first nations and Canada could be, but we have to arrive at a consensus about what this means and what this would look like.

Our people have waited 137 long years for this discussion. It's about time that we take it seriously. It's my hope that this bill will serve as a springboard for engagement. I look forward to this process and answering your questions today as we proceed through the examination of Bill C-428.

Thank you, Mr. Chair.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Clark.

To begin, we'll turn now to Ms. Crowder.

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

Thank you, Mr. Chair.

Thank you, Mr. Clarke, for coming before the committee today.

We would likely agree with you that successive Conservative and Liberal governments have pursued an assimilationist agenda, and I would argue that an assimilationist agenda continues to play out today with the lack of progress on key issues that speak to the honour of the crown, like treaty and comprehensive land claims implementation. So we would agree with you on that point.

When we look at things like the UN Declaration on the Rights of Indigenous Peoples and its article that talks about “free, prior and informed consent”, this gets us to the heart of the matter. A private member's bill, no matter how well intentioned, does not point to the fact that what we are speaking about here is the honour of the crown and the duty to consult.

I want to quote from an article on the Turtle Island Native Network, from June 29, 2012, that notes:

Advancing Aboriginal policy through private member’s bills raises significant problems with the Crown’s duty to undertake consultation and accommodation on legislative changes that will impact Aboriginal and treaty rights.

I think that's the heart of the criticism that has come forward, that once again we have a bill—in this case a private member's bill—that is taking apart the Indian Act piecemeal. It could have unintended consequences, and I repeat, no matter how well intentioned, it's imposing changes on first nations.

I wonder if you could comment on that specific matter, that first nations have been saying that if the Indian Act is to be taken apart, they must be consulted in advance of proposed changes.

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

Thank you very much for your question.

I'm sitting here as a first nation's individual who has had to live and work under the constraints of the Indian Act. When we talk about meeting with first nations, it's about engagement and reaching out. That's what I've tried to do on my private member's bill, to actively reach out to first nation leaders, grassroots individuals, and elders, and talk to them, ask them about the parameters facing first nations. It's about economics and societal changes that are affecting first nations on a day-to-day basis on reserve.

I've met with and continue to meet with first nation chiefs, organizations, grassroots members, and interested stakeholders. I have conducted a thorough outreach program, including social media and round tables, band meetings, direct mail-outs and, recently, town hall meetings.

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

Just to interrupt you there, Rob, you know the process and that I have only seven minutes.

Are you suggesting that this fulfils the crown's duty to consult?

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

I have a private member's bill. The one thing, when we talk about the crown, is that it has to be nation to nation.

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

Exactly.

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

What I'm utilizing right now is the parliamentary process of the committee, including to form a legal consultation with first nations. In my private member's bill, I'm trying to look at mandating first nations to meet on a yearly basis, in consultation with the federal government, to look at a more modern and respectful relationship and dialogue to create a more modern and harmonious act that reflects today's values.

You mentioned the UN declaration, and I'd like to point out that under the UN Declaration on the Rights of Indigenous Peoples, to which Canada became a signatory in 2010, we have the responsibility to uphold the articles established in accordance with the UNDRIP, and to adhere to the requirements.

I'd like to point out that under Article 18,

Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making....

That's what I'm also doing, through bylaws, letting first nations be self-governing and form their own bylaws without having to have ministerial approval.

Also, Article 19 reads:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

That is also being included in my private member's bill: a yearly review with the minister and first nations, and that's being legislated.

But also, nothing in Bill C-428 contravenes any part of the declaration; it legislates a consultation process whereby the minister must report back to the House the progress that has been made in repealing the Indian Act. I have met, and will continue to meet with, willing partners in the process, including the first nations grassroots, chiefs, and organizations.

But the bill also promotes other articles in the UN declaration, which you've pointed out, such as Article 3, which calls for first nations to “...freely pursue their economic, social and cultural development”.

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

Mr. Clarke, could I just interrupt?

[The Chair, Conservative, Chris Warkentin]

Mr. Clarke, I believe Ms. Crowder is just trying to ask a follow-up question.

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

And I'm just trying to answer the first question she asked about the UN declaration.

Thank you, Mr. Chair.

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

How much time do I have left?

[The Chair, Conservative, Chris Warkentin]

You have just over a minute.

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

Similarly, the bylaw section of Bill C-428 reflects article 4. These sections....

Mr. Chair, the UN declaration, which states—

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

Mr. Clarke—

[The Chair, Conservative, Chris Warkentin]

Mr. Clarke, Ms. Crowder has very limited time. I believe she's asking a follow-up question and she has only a minute left. She may desire not to hear the final portion of your answer, but it is her right to ask a follow-up question.

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

I just want to follow up, Mr. Clarke, with the comment that despite all of the quotes you're using from the UN Declaration on the Rights of Indigenous Peoples, it is the crown that must undertake consultation in order to make significant changes that would impact on every aspect of life for first nations.

With all due respect, a private member's bill does not reflect the honour of the crown. So I would argue that all of those quotes you're using from the UN Declaration on the Rights of Indigenous Peoples do not fulfill the crown's responsibility to undertake changes to the Indian Act.

Thank you.

[The Chair, Conservative, Chris Warkentin]

We'll turn now to Mr. Bruinooge, for seven minutes.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Thank you, Mr. Chair.

I'm just a little surprised, hearing some of the lines of questioning coming from my honourable colleague.

Mr. Clarke, you can help me understand what Ms. Crowder is trying to say. I think she's trying to say that as a first nation person, you should simply sit idly by and live under the Indian Act without being able to utilize your office to contemplate some changes to the very act that leaves you in an apartheid status.

Is that exactly what you think she said?

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

The impression I got, and from what I've heard in the past, is that through a private member's bill I'm not capable...or as parliamentarians that we don't have the privilege of bringing forward legislation. As a first nation individual—

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

I have a point of order, Mr. Chair.

[The Chair, Conservative, Chris Warkentin]

I recognize a point of order by Ms. Crowder.