Indigenous and Northern Affairs Committee on March 19th, 2013

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

Carolyn, we talked about dry reserves. We talked with the FSIN. I'll explain the process that occurred with FSIN.

When I drafted the bill, I went to speak with the FSIN. They were supposed to meet with me, the four vice-chiefs. The four vice-chiefs were supposed to look at a process to do a consultation with the reserve. And then in eventual subsequent meetings, I was going to meet with the entire first nation.

We talk about the process of openness and being frank and looking at engagement and the outreach portion of the bill. I've talked with first nations. I've met with Tsawwassen. I've met with Flying Dust. I've met with English River. I've met with Muskeg Lake. I've met with Attawapiskat.

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

What did they think of it? Did they like it?

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

It was not only with leaders, but I've always talked to the grassroots as well. They need to see the change. There have been first nations out there who like it. But they would also like to do their amendments to the bill. When I introduced the bill under.... You mentioned section 85.1 about the dry reserves.

It was a first nation leader who brought forward the point that there were going to be problems with the bill. I was open to the amendments. He said that there were over 297 first nations across Canada who have bans on intoxicants on reserve. What he suggested, and hopefully it's going to be addressed and studied at the committee stage, is that we make amendments to allow first nations to maintain their dry reserves.

Carolyn, I had to enforce this, and it's not fair for first nations not to have their rights to form their own bylaws. It's a paternalistic approach. You're talking about maintaining the status quo, and that's not fair.

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

I'm saying there is an unintended consequence because of a lack of consultation.

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

You're starting to dictate what's good for first nations. You've done that.

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

No, and Bob Rae's bill and his motion are quite clear on how you go about this properly.

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

Mr. Chair, Bob Rae's bill is basically the same as the first draft of my private member's bill. All that Bob Rae's bill does is that it's a motion for further dialogue. It would add another two years and then there would be another 139 years of more talk. What my bill does is to create a process that legislates that government to stop talking, and let's look at some meaningful change and dialogue.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Clarke.

We'll now turn to Mr. Seeback for seven minutes.

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you, Mr. Chair.

Rob, thanks for being here. I know you've put a lot of work into putting together this piece of legislation, and I thank you for all your hard work.

You've proposed several changes to a number of sections, and I'd like to start off by asking you—and here I'm sure you did a lot of research—how you decided which sections of the Indian Act you wanted to amend and repeal. Can you walk me through that process?

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

The first thing I did with this bill was to carefully review each and every section of the Indian Act to remove unused, archaic, irrelevant sections of the act. There are many sections in the act that make no sense in our world today, for example, the section that deals with bylaws. In the past, band bylaws had to get ministerial approval before coming into law. This will change what permits bands to make or publish their own bylaws.

Similarly with wills and estates, a will had to be approved by the minister before it could be valid for first nations persons. This will no longer be the case.

Once we've cleared the underbrush or the dead wood from the act, it will make it much easier to see what needs to be done to ensure that no first nation community is harmed by removal of the act and that it is replaced with an act that respects a more modern relationship.

As for bylaws, we talk about empowering first nations. An example I have is when I was a police officer on the Ahtahkakoop First Nation and talking with the former chief of that reserve. We had a real problem on that reserve with drug and alcohol abuse. We had predators out there who were trafficking in cocaine, marijuana, and pills on cheque days. As a police officer, I was going out and catching the bad guys and making the arrests. But these predators were preying on the most vulnerable. The chief and council asked me what we could do by way of a bylaw, which every other municipality has a right to do across Canada, to ban individuals from that community, to remove them.

The chief drafted the bylaws and sent them off on different occasions, and three or four were sent back by the department refusing them the same rights that other communities had drafted into law, refusing first nations the same rights that other non-aboriginal communities had drafted using that exact same wording to prohibit individuals from living in that community. So we have a two-tier system of rights. They're not being treated equally; they're not given the same rights under the Criminal Code as a non-aboriginal community.

That is why I'm trying to empower bylaws, to allow first nations the same rights as other communities.

[Kyle Seeback, Conservative, Brampton West, ON]

It appears that you're taking a step-by-step approach to a number of sections. Why are you taking that approach rather than repealing the entire act as some other people have suggested might be the way to go?

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

First nations, individuals, grassroots members, band members say, “Blow up the Indian Act. It's gotta go.” But as one chief said, “It's a train wreck ready to happen.” There's a fiduciary responsibility on the part of the crown. A former Supreme Court justice, just in April of 2012, indicated that you can't just blow up the Indian Act. There has to be an incremental process to get rid of some of the outdated clauses in the Indian Act. When we look at the Indian Act, it's paternalistic. It provides for the evils of not allowing first nations to participate actively in economic opportunities.

That's why I look at agriculture. I come from the prairie provinces, and I've talked with individuals such as Howard Cameron. He wanted to start a farm on Beardy's First Nation with the youth to teach them to live off the land, but also how to grow their own produce for sale.

As I said in my opening speech about a farmer growing corn, those first nations still have the same opportunity either through ethanol.... It's a modern business world out there, and first nations want to be actively engaged in it. The only way first nations can be actively engaged is to participate in the economy in every sense the same way every other Canadian does.

I look at wills and estates. I don't have the same rights that everyone here at the committee has. I'm treated as a second-class citizen. I have to get my will approved by the minister. I don't think that's right. For every individual here, all they have to do is have the will witnessed by an individual, a friend. The approach of the Indian Act is paternalistic.

Something has to be changed. Is it a mindset? Everyone says, “Let's get rid of the Indian Act,” but when push comes to shove, when we sit down and actually want to discuss it, all I hear is, “You can't do it. You don't have the right.”

I'm a first nation person. I understand that. I've lived it. Many of you here don't understand that. You say you do, but you don't.

[The Chair, Conservative, Chris Warkentin]

We're pretty well out of time, so we'll move on to Mr. Genest-Jourdain for five minutes.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Good morning, Mr. Clark.

In your opening remarks, you said that the outdated nature of the Indian Act was at the root of the unfortunate social situation in Attawapiskat. I would say that the Attawapiskat situation became a source of discomfort for your government only once it started receiving media coverage. I think this situation is the result of a utilitarian relationship that has gradually developed between first nations and a government whose policy is dictated by a corporatist agenda primarily focused on the mining of natural resources. I would like to point out that a diamond mine is located close to that community. Nothing is left to chance.

I have a question about the harmonization of the law and your initiative, as it is proposed. Like me, you heard the testimony of the department's representatives at our last meeting. There was clearly some discomfort over the nearly impossible harmonization of the law when it comes to certain issues, including wills and estates on reserves across the country. In Quebec in particular, there was a real problem with the application of provincial legislation. Another issue had to do with the harmonization of rules that apply to holographs, among other things, and the validity of such documents.

I would like to hear what you have to say about the studies you have conducted. I also want to know how much focus you—and the experts who helped you draft the legislation—have placed on the bill's legal aspects and its applicability on the ground.

Thank you.

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

Thank you very much, Mr. Chair.

We talk about the wills. You mentioned Quebec and the provinces. It's an inconvenience for the provinces for wills and estates. I go back and we talk about the wills of first nation individuals where we have.... Your first nations as well, we all have a treaty card. One of the issues that I had when I joined the RCMP was that I drafted my will not realizing that I had to get ministerial approval.

Back in July 7, 2006, I had a very unfortunate incident, which I don't talk about. It always gets me very emotional. I was in charge of a detachment in Spiritwood Saskatchewan. At 9:24 p.m. I had a very unfortunate announcement that two RCMP officers were fatally shot. What that caused me to do in the aftermath was to review my will. I didn't know I had to get ministerial approval to verify my will. No one else here has to do that. Like I say, I don't want ministerial approval to verify wills, to authenticate them. I don't want the minister to make the decision, if my will is contested by individuals out there, on who gets what.

You talk about Quebec and about provincial systems. I had an uncle, a veteran, and he and his family were arguing in a first nation community about his estate. What they had done, not realizing it, was to go to an attorney, a provincial lawyer, and ask for power of attorney when the provincial lawyer didn't have that right. It had to be the minister making that decision, authenticating or verifying it.

Now we talk about different approaches out there that are currently in the system or the federal government recognizes. There's Cree family law. There's also Algonquin family law that can address wills and estates. However, the Indian Act won't let that happen, so it makes these null and void. But the federal government recognizes Algonquin and Cree family law. I'm hoping that the witnesses coming forward in the future will be able to clarify that.

[The Chair, Conservative, Chris Warkentin]

Thanks, Mr. Clarke.

I will turn now to Ms. Ambler for five minutes.

[Stella Ambler, Conservative, Mississauga South, ON]

Thank you, Mr. Chair.

Thank you, Mr. Clarke, for being here today. You mentioned that your grandparents had been in residential schools. I suspect that part of your motivation for addressing that issue is a very personal one. I wanted to ask you why you're removing the provisions, the sections, on residential schools from the act.

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

It's very personal to me. Do I understand residential schools? I attended a small non-aboriginal school with three classrooms. I was disciplined but it also disciplined me to stick to the principles. Residential schools represent a dark chapter in Canadian history. My grandparents talked about them, but they also valued education and understood that education was still important. However, there's no place in Canada for residential schools in 2013 or at any time in our history. As a grandson of two resident school survivors, I've seen the devastating effects of residential schools. The goal of the bill is to remove any references to residential schools to prevent any future government or minister from reinstating them again.

[Stella Ambler, Conservative, Mississauga South, ON]

Thank you.

Of course, that's led to this historic apology, to which you also referred, and the statement by this government, I believe in 2010, that it was our intention to remove all references to residential schools from the Indian Act. So you're basically putting this into practice, keeping a promise. Is that correct?

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

That's correct.

In 2010 Minister Strahl made that commitment to the Truth and Reconciliation Commission. How appropriate would it be for a first nations individual to legislate the removal of that clause? It's not about symbolism in government; it's about doing the right thing as first nations.

[Stella Ambler, Conservative, Mississauga South, ON]

It would be very appropriate.

Speaking of the truth and reconciliation process, how will that be affected by this bill as it relates to residential schools?

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

It's very simple. The bill removes any references to residential schools. It's to prevent any future government from reinstating them. That's the intent of the bill.

[Stella Ambler, Conservative, Mississauga South, ON]

Do you see any changes going forward in the delivery of education to first nations?

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

No. The removal of residential schools will not affect the delivery of first nations education at all. You have the federal government currently in a formal consultation process with interested parties on reforming the K-to-12 education. I believe it should be finishing up here in September 2014.

[Stella Ambler, Conservative, Mississauga South, ON]

Excellent.

Do you think that this is not only fulfilling a promise but also doing the right thing? It's almost a formality, really.