Indigenous and Northern Affairs Committee on March 21st, 2013

[Teresa Edwards]

Sometimes change is to our detriment, as we have seen. Bringing in the act itself was change. Bringing in the policy about Indian residential schools was change. I'd say those are very devastating impacts on our nations.

For me, as I've said, I would recommend a thorough free, prior, and informed consent model that's laid out in the UN declaration. The government has signed on to the declaration, and therefore implementing could occur in a full partnership.

You asked who we would engage with. It would be with leadership—obviously the Prime Minister getting behind this movement of positive change and partnership and collaboration—but with a full and thorough process with all those impacted: the Assembly of First Nations, the leadership, the governance, but also the community people.

It would be a thorough process, set out over five or ten years, with deliberate goals and objectives set out by both parties and led by a first nations, not a rushed process. It's always this rushed process that government is trying to impose. Then you have huge resistance, and then people ask why there's resistance. Let's do it right for once and save the taxpayer billions of dollars of legislation going forward. Minor meetings happening don't constitute consultation.

Let's do it properly the first time. Actually, it wouldn't be the first time, but let's make a change and do things right, thoroughly, using the UN declaration as a road map for action.

[Michèle Audette]

I would ask you the following question, sir, in 30 seconds: why not honour your former prime minister, Mr. Mulroney, when he ordered a royal inquiry commission? The recommendations in the royal commission report also talked about the future of native peoples with respect to rights, governance and so on. Why not honour him and see to it that a project of society is created, but one that includes the people directly concerned, that is, us, in our communities?

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

We'll now turn to Mr. Genest-Jourdain, for five minutes.

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

Good morning, ladies. It is refreshing to have you with us this morning.

I have seen, in the past two years, the thinly veiled attempts of this government to get rid of responsibilities it has regarding aboriginal nations across the country. These are veiled attempts because they are made within legislation that may seem harmless at first glance, but we can see that the bills coming from the members are no exception to the rule.

I particularly appreciated the part of your presentation that dealt with the scope of the concept of consultation and the search for consent from the parties. I would like you to go into this more deeply by talking to us about the possibility being offered to the nations, first and foremost to their members as individuals, of not giving their consent to a particular initiative.

Also I would like you to talk to us about the need for this government to go and consult the members of the communities, above all, and not be content with meeting the nine leaders of a community. In Uashat-Maliotenam, to take a familiar example, there are 9 leaders for 3,000 individuals. It cannot be considered that a proper consultation has taken place if only these nine individuals are consulted.

[Michèle Audette]

Thank you, Mr. Genest-Jourdain. I point out that you are the MP for my riding.

As Ms. Edwards clearly explained, for us, consultation is closely linked to consent. When we go into the communities to see what is happening on a daily basis, we note that consultation, whether federal, provincial or within the community, is a new process. This type of democracy comes little by little and that is just fine.

Our organization has been fighting since 1974. We find it extremely important to have real consultation, if of course there was some cooperation with the Conservative government with a view to changing or amending the Indian Act. We could be equipped, with human resources, expertise, funding or whatever, in order to educate people in our communities, because these are the people who will be directly affected. It would mean going to where the communities are located. Why not do so in collaboration with Aboriginal Affairs and Northern Development Canada? It is necessary for organizations to be able to present their proposals and inform the government about what is taking shape so that the government can in turn say what it is thinking. Because solutions come from the communities. In my opinion, in such a case, we could talk about consultation.

We have to give people the time to think about things and absorb everything, because such projects are very heavy. Then we have to make sure we can build it all together. Quebec does so with its estates general. Why not do likewise this time?

The personal stories like those I heard earlier could be multiplied by a million from one end of Canada to the other. Everyone has some such experience. If this bill is maintained, we will end up saying the same things in 10 or 20 years.

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

How much time do I have left?

[The Chair, Conservative, Chris Warkentin]

You have a minute and a half.

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

To your knowledge, have the initiatives taken by this government in the past two years given rise to deployment and a real presence on the ground. Have there been meetings with people?

You said that it was essential to go into the communities and hold information and training sessions there for the people, in light of the low literacy rate among the inhabitants of certain communities. To your knowledge, have such proactive measures been put forward in recent years?

[Michèle Audette]

In fact, at the historical meeting of the first nations, held on January 28, last year, between the Crown and some of our elected representatives — not all our elected representatives — it was officially announced to us that the Indian Act would not be amended and, if it were the case, the aboriginal peoples would be consulted.

Barely one year later, however, this commitment has not been respected. When I hear that 5,000 first nations have been consulted, I would like to know who they were and what they were consulted about.

Instead of banging our heads together or accusing one another, I suggest that we be constructive, here and now, for tomorrow.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

I will turn now to Mr. Rathgeber for five minutes.

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

Thank you, Mr. Chair.

Thank you, witnesses.

I just want a clarification on one item, Ms. Audette. In your opening comments, you indicated that with respect to the 1876 Indian Act there was no consultation with regard to first nations and aboriginal persons.

I suspect you're probably right, but I'm curious as to how you know that, given that there was no access to information legislation and there were very few records kept. How do you know what consultation did take prior to Parliament's passing of the Indian Act in 1876?

[Michèle Audette]

The oral tradition is very much alive in our communities. I live in a community that signed a treaty. I think it was the Murray Treaty. Then came the act. The people were not consulted on these written documents. The act was imposed.

With some research, we can demonstrate that this did not occur after enlightened consent had been obtained. Often we experienced famine or extreme poverty, without understanding the consequences the document might have for tomorrow or for future generations. Some communities or nations were unfortunately taken in, in my opinion.

I repeat that there is an oral tradition. Lots of historians, anthropologists and sociologists would be able, if you invited them here, to affirm that there were not any consultations and that this act was imposed.

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

Okay. I have a follow-up to that.

You believe, and I think legitimately so, that aboriginal persons need to be consulted with respect to changes to the Indian Act. You'll have to forgive me—I'm new to this committee and I'm just getting up to speed—but my concern, or at least my observation, is that it's not clear to me with whom Parliament or the government ought to consult. What I mean by that is it's not clear to me who speaks for aboriginals and who speaks for first nations.

I had a town hall meeting on some of these issues during the February break. It was clear to me that members of the aboriginal community don't always believe that Grand Chief Shawn Atleo speaks for them. So I'm curious: from your perspective, who needs to be consulted and collaborated with as we go forward in this process?

[Michèle Audette]

It is important to mention that Chief Atleo was elected only by the chiefs. There was not a universal vote. So it is to be expected that some people say he does not represent them. However that may be, I wish to say that it is an organization that does a very good job of defending the interests of first nations throughout Canada. He is not, however, the spokesperson for everyone, in that there was not a universal vote. He is the spokesperson of the chiefs only.

I say that all Canadians should be consulted: men, women, first nations, the communities and the organizations working towards this, that could be partners with the federal government in this project of society.

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

You can appreciate two things: first, that consulting with all Canadians is probably not practicable. The more people are brought into the process, the less likely it is that consensus can be achieved. You understand that.

[Teresa Edwards]

I could ask the same question with regard to this government. Does this government then claim to speak for all Canadians even though there was the lowest voting turnout in history? I think 20% of Canadians voted for this government. Would they then pretend to speak for all Canadians? I think not.

With any legislation, for every consultation, they set out to engage every part of the community. Michèle is not suggesting that you meet with every individual Canadian. Of course not. The cost would be astronomical. But, we need to make sure that you meet with first nations leadership, certainly. Prior governments always met with five or six groups—the Assembly of First Nations, the Native Women's Association, the Métis National Council.... It's not rocket science.

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

Just so you're clear, I'm not suggesting that the grand chief speaks for all aboriginal persons. My question was—and I do appreciate the answer—how broad the consultation process, in your view, ought to be. I thank you for your input.

Thank you, Mr. Chair.

[The Chair, Conservative, Chris Warkentin]

Thank you.

We do want to thank our witnesses for joining us this morning. We appreciate your testimony and your answers to the questions.

We'll suspend, colleagues, just for a few minutes to switch witnesses.

Thank you.

[The Chair, Conservative, Chris Warkentin]

Colleagues, we'll call this meeting back to order. We now have witnesses from the Congress of Aboriginal Peoples.

We want to thank Mr. Devoe and Madam Lavallée for coming.

We appreciate your willingness to come here and testify before our committee. We will turn it over to you for the first 10 minutes and then we'll have some questions for you as well.

Thanks again for joining us. We appreciate your willingness to be here.

[Chief Betty Ann Lavallée, National Chief, Congress of Aboriginal Peoples]

Thank you, Mr. Chair.

I'll apologize beforehand. I have a slight cold, so if I start coughing, everybody clear the room. You don't want it.

[Voices]

Oh, oh!

[Chief Betty Ann Lavallée]

Kwey, hello, and bonjour.

Good morning, Chair Warkentin and committee members. It's a pleasure to be here on the traditional territory of the Algonquin peoples to speak to you about Bill C-428, the Indian Act Amendment and Replacement Act.

I am the National Chief of the Congress of Aboriginal Peoples. Since 1971, the Congress of Aboriginal Peoples, formerly known as the Native Council of Canada, has represented the interests of off-reserve, status, and non-status Indians, the Southern Inuit of Labrador, and Métis throughout Canada. The congress is also the national voice for its affiliate organization that advocates on behalf of aboriginal peoples living off reserve.

For over 43 years, the congress has been a strong advocate for amending the Indian Act. Today, over 60% of aboriginal peoples live off reserve. The provisions of this act are rooted in a colonial ordinance directed at imposing restrictions and regulations for the purpose of assimilation. These restrictions are what created the removal of Métis and non-status Indians from their historical communities in the first place.

Our organization supports the removal of the archaic provisions created under the Indian Act, such as, for instance, eliminating the minister's control and authority over wills and estates. Canadian governments do not control the average person's wills and estates. Likewise, aboriginal people should be able to take control of their own personal affairs and not be subject to such childish scrutiny and personal interference by the crown into matters that no other resident of Canada would ever tolerate.

The removal of the phrase “residential schools” from the education provisions in this bill is a big step forward. In June 2008, the Prime Minister apologized for the residential schools, although no one should ever forget the tragedies and the injustices that have been done to so many of our aboriginal peoples. Our constituency has been touched by the residential school system. In fact, many of our people relinquished their status so their children would not be forced away from their homes and into residential schools.

The Truth and Reconciliation Commission of Canada is now a major part of the Indian Residential Schools Settlement Agreement. This amendment could be part of the healing process for all those personally affected by the residential school system.

The Congress of Aboriginal Peoples, along with other participants, partnered with the federal government in the joint ministry advisory committee, JMAC, to assist in drafting Indian Act amendments. This committee tabled their final report on March 8, 2002. The report laid out recommendations and legislative options for a first nations governance act. At that time, our organization was supportive of this initiative.

Some of the proposals put forth in Bill C-428 are not dissimilar to the positions put forth in the joint ministerial advisory committee report and the First Nations Governance Act. For example, Bill C-428 repeals section 85.1, “By-laws relating to intoxicants”, under this act. The governance act also addresses section 85.1 and how these limitations have long been criticized by bands and representative organizations as being out of keeping with traditional law-making practices.

This bill also requires permitting and mandating individual first nations councils to publish bylaws. This measure allows for more inclusion to all community members, regardless of residency. Aboriginal peoples should be informed about their communities. Since the Corbiere decision, aboriginal people who live off reserve have the right to vote in elections should they choose to do so, and they also have the right to participate in and vote on decisions regarding specific claims and resource issues.

One of the most significant aspects of Bill C-428 is that it will require the minister to report annually on the work undertaken by his or her department, in collaboration with aboriginal organizations and other interested parties, to develop new legislation to replace the Indian Act. We at the congress believe that this is useful and positive initiative that would keep all parties informed on the progress thus far.

As I previously indicated, the Indian Act was one of the first pieces of legislation to define and create arbitrary classes of aboriginal peoples such as status, non-status, and Métis. Prior to delineating aboriginal peoples, it was understood that non-status and Métis were included in the Constitution Act of 1867 under subsection 91(24). Recently, we've had this confirmed. This subsection provides Canada's federal government exclusive authority to legislate in relation to Indians, and lands reserved for Indians.

Under the Indian Act, non-status and Métis were gradually excluded from the same rights and privileges as status Indians. A recent Federal Court decision ruled that Métis and non-status Indians in Canada are Indians under subsection 91(24) of the Constitution Act of 1867. This decision marks a new relationship with the Government of Canada.

As a national aboriginal organization, we fully expect the government to abide by their duty to consult.

Mr. Rob Clarke has done just that. He consulted with the Congress of Aboriginal Peoples on a few occasions about his private member's bill, Bill C-428, and he made himself available to any aboriginal community off reserve who invited him to learn more about his private member's bill. He attended our annual general meeting and met and had a discussion with my board of directors. He offered his time to come out to speak to their individual boards, which they held at this meeting, and community peoples.

On the whole, this legislation addresses obsolete sections of the Indian Act and permits more participation by off-reserve community members. As a Mi'kmaq, I am a registered Indian under the Indian Act, with my status tied to an Indian Act band. Although I live off reserve, I am recognized as a Mi'kmaq woman with treaty and aboriginal rights. Much of the relationship between the crown and aboriginal peoples involves treaties and treaty relationships, not the Indian Act. There are members in our constituency who are non-status Indian with treaty rights, but they are not protected under the Indian Act.

Treaties were established before the Indian Act. Treaties did not discriminate between mixed bloods. Status and non-status Indians and Métis were all included in these treaties.

The Congress of Aboriginal Peoples respectfully requests a helpful addition to this bill. We believe the annual report by the minister should be amended to include the implementation of treaties. Most non-aboriginal people, and even the media, seem to think the relationship between the crown and aboriginal peoples is based on the Indian Act. This is not the case. The treaty relationship is the basis of the relationship. It is not based solely on legislation. To view it otherwise would limit our thinking to only those issues that are currently covered by the Indian Act, and not those that are broader in scope.

This is an instrumental bill, and it's important to address the distinctions made between people living on and off reserve, as well as the broader principles.

We lalioq. Thank you. Merci beaucoup.

[The Chair, Conservative, Chris Warkentin]

Thank you very much for that opening statement.

I will now turn to Mr. Bevington, for the first seven minutes.

[Dennis Bevington, NDP, Western Arctic, NT]

Thank you, Mr. Chair. Thank you to the witnesses.

I was struck by your comments at the end on treaties. I think they are very appropriate and are part of the ongoing struggle that first nations and non-status people across this country face. There is a confusion between treaties and laws. Laws are made by Parliament, and treaties have a different level of authority under the Constitution as well You're absolutely right. That's a very valid comment on this.

But we are dealing with the law here. There are some changes to the law that have been proposed by Mr. Clarke in his private member's bill. You said that you thought this was a good idea, the bylaw relating to intoxicants. I'm thinking of the Northwest Territories where our communities are not on reserve. All communities have the authority, through plebiscite, to outlaw alcohol in their communities. That outlawing of alcohol applies to all people. Are you saying here that the 259 reserves that have made decisions about intoxicants should not have that authority that's provided to municipalities across the country?

[National Chief Betty Ann Lavallée]

No, sir. What I'm saying is that they should have the ability to pass a bylaw without having to go to the minister every time. If they decide that their community is going to be a dry community, it's a matter of their mandating by council and chief through a proper governance structure the outlawing of alcohol, drugs, or whatever other substance they choose to limit in their communities without having to get that bylaw vetted by the Minister of Aboriginal Affairs and Northern Development Canada. What this is doing is giving control back to the community to make decisions on their own.