Indigenous and Northern Affairs Committee on April 18th, 2013

[The Chair, Conservative, Chris Warkentin]

Colleagues, I'll call this meeting to order. This is the 67th meeting of the Standing Committee on Aboriginal Affairs and Northern Development. Today we continue our review of Bill C-428.

Today we have before us, for the first hour, witnesses from the Assembly of First Nations. Today we welcome Chief Jody Wilson-Raybould. Thanks so much for joining us. We have Karen Campbell joining as well. Thank you so much for being here.

You're familiar with our process here at committee. We'll turn it over to you for an opening statement of approximately 10 minutes, and then we'll have some questions for you.

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

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

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

Turning to Bill C-428, as set out in the preamble of the bill, there's no question that the Indian Act is “an outdated and colonial statute”.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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[The Chair, Conservative, Chris Warkentin]

Thank you so much.

We'll begin with Ms. Crowder.

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

Thank you, Mr. Chair, and I want to thank Chief Wilson-Raybould for a very thorough presentation. Is that presentation going to be made available to the committee?

[Jody Wilson-Raybould]

It certainly can be.

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

Great, because that actually outlines a number of proposed changes and deletions, and it's a very thorough analysis.

Just so I understand, if the proposed deletions and amendments are made, there are certain parts of this bill that you do support, as you've outlined.

One of the things you mentioned in your presentation is that there are many examples of nations that have developed their own solutions or that are currently governing outside of the Indian Act. My understanding of what you were saying is that it would be useful to be able to provide those very good practices to other first nations. Is that correct?

[Jody Wilson-Raybould]

Absolutely, I would agree with that.

In terms of moving beyond the Indian Act in a meaningful way, while there can be from the federal government legislation that is enabling in nature, to substantively and concretely move away from the Indian Act based upon priorities of individual communities, that work has to and must be directed by the citizens of the individual nations.

What we've sought to do at the BCAFN and at the Assembly of First Nations is to share the information between and among our nations about what nations are doing practically to move beyond the Indian Act.

Yes, I agree with your contention.

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

In terms of supporting nations around sharing those practices and governance models, is there something we could recommend?

[Jody Wilson-Raybould]

I think sharing that information is the biggest opportunity we have, not only between and among our nations, but as Canadians generally.

In terms of a recommendation from this committee, it would be to have a clear idea of what options are available out there and what first nations are actually doing, and whether this be by way of a study or a recommendation of a study across the country, be open to those recommendations and the voices and initiatives first nations are bringing forward.

I think the comprehensive work, in terms of an analysis of what we're doing in British Columbia as first nations, has without question proved entirely useful to our communities and the broader public. Such a comprehensive study across the country would, in my view, certainly advance this work in a really substantial way.

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

You're absolutely correct. There are a number of nations that have very high standards of practices in place.

I want to touch on the part on the changes to special reserves, which I can't find right now. One of our previous witnesses had pointed out that because of the slow process around additions to reserves and the complications around them, one of the suggestions was that this particular section of the act needed to be carefully considered before it was repealed. It is another mechanism to allow nations to add lands under the special reserve category rather than under the additions to reserve, and it could be less cumbersome.

Have you had a chance to analyze it from that perspective?

[Jody Wilson-Raybould]

To answer your question, no, not from that perspective, but that's an interesting reflection.

To repeat, I'm not exactly sure what the intention was here in terms of special reserves, but what this seeks to do is limit the special reserves that exist, and limit it only to those reserves that existed prior to this bill coming into law, if it does. They wouldn't carry on into the future.

The challenge with this particular piece is that on reserves there are many ways in which the lands are held or how title is held, whether it be through Her Majesty or the provincial governments. The reality, or what we're seeking to do—and special reserves weren't contained within the framework agreement on first nations land management, for example—is we are looking to establish governance mechanisms over that land, in terms of what's appropriate for first nations.

It's an interesting question, in terms of what you pose around additions to reserves. Certainly it has been a challenge for our nations to ensure that when land is either purchased or achieved through a settlement, there be the ability to add lands to the reserve that doesn't take some two to fifteen years.

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

We heard from Mr. Calla on Tuesday that one thing the committee might want to look at is the mechanism by which municipalities publish their bylaws. Have you had an opportunity to look at that, because you're right, the requirements in this legislation are something that no other level of government is required to do in that fashion. Have you had an opportunity to look at municipalities?

[Jody Wilson-Raybould]

Not specifically municipalities, but we recognize there are provisions on how they notify and provide to citizens or constituents the laws. In terms of what first nations have done, whether it be in sectoral arrangements or comprehensive self-government arrangements, the mechanisms are quite different. They may be available on a computer in a government office for citizens to come in and download; they may be as they are in the First Nations Land Management Act, the First Nations Fiscal and Statistical Management Act. Laws that are passed there, i.e., a land code or a financial administration law, are in fact published in the First Nations Gazette.

For our part as individual first nations we have differing ways about how we go about ensuring that our constituents, that are subject to the laws, are provided with the ability to have access to them. That might be by way of having them in our government offices available for the taking and publishing on our website. For the most part, that has proved effective in many of the first nations communities that I represent.

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

Thank you.

[The Chair, Conservative, Chris Warkentin]

Mr. Clarke, for seven minutes.

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

Thank you very much, Mr. Chair, and thank you to the witnesses for coming in to testify today before the committee.

The true intention of my private member's bill is to bring public awareness and bring this to the forefront, and to have an honest and open debate. The intention of my private member's bill was never to be partisan, but to really discuss how outdated the Indian Act is.

What I've seen throughout the history of the Indian Act, or in a good 20 or 30 years when I've been exposed to it, is I've seen first nations leaders.... At the most recent AFN election, all the candidates for the national chief stated the need to move beyond the Indian Act.

National Chief Shawn Atleo has even stated that the “Indian Act is a 19th century relic which continues to hold us back in delivering better lives for our people.” That was back on December 6, 2011 on the CBC.

As a first nations person, and for a lot of other first nations people, if you're not a first nations person, you really don't understand what a person goes through, the hardships or the barriers that first nations face. You can be exposed to it and you can see it, but if you're not a first nations person, it's difficult to live the day-to-day lives and be treated as a second-class citizen, especially in today's more modern, respectable Canada. As first nations we're not treated the same.

With regard to your testimony today, you've mentioned some of the barriers that first nations face. I'd like to get some clarification. I know you don't speak on behalf of Chief Shawn Atleo, but can you mention some of the barriers he has mentioned or what he has brought up in the past?

[Jody Wilson-Raybould]

Thank you for the questions. I'll seek to address the points you raised.

I hear you on how you reflect on the true reasons this bill was brought forward, to increase public awareness and assert that this is not a partisan issue. I subscribe to that same philosophy. I recognize the outstanding question of self-determination and regard the settlement of the land question, whether you have a treaty or not, as the biggest unsettled policy issue in this country. I look to members of Parliament to recognize this as a hugely important non-partisan issue that must be resolved.

I have sought in my career as a politician to move forward not for political gain but for the sake of rebuilding our nations and securing the necessary support and public awareness that this requires. In that sense, I recognize the effort, and it has created dialogue. The dialogue, however, has been going on for a significant amount of time. A tremendous amount of hard work has been undertaken by our first nations. In that work, we are looking to members around this table, as well as to the Prime Minister and his cabinet, to support our nation-rebuilding work. We have raised public awareness and agreed to work in collaboration, without imposing or enforcing provisions that define our post-colonial world for us. We are committed to employing various means and mechanisms such as enabling legislation that will allow first nations to perform the hard and necessary work themselves.

You say you can't understand the situation first nations are in unless you are a first nations person. I find that an interesting comment. While I agree in part, I think we need to ensure there is a broader understanding of the historical realities and the impact of colonialism and colonization on our people. Our people are undertaking the hard work necessary to move forward. The only people who can move us beyond the Indian Act are our own citizens. They are the ones who must direct the change. There's no question about it, though, that decolonization is hard. It means recognizing our national chief and his leadership and supporting our nations in creating the space for them to do what it is they want to do as rights holders and the signatories of treaties. This is our job. He has entrusted me with the portfolio of first nations governance, and it is in that capacity, as a member of a team at the AFN, that I am sitting here to reflect on these important issues.

The barriers are tremendous, but the opportunities far eclipse the strength of the barriers. I hope these issues have been addressed in some of the statements I have made today.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

We'll turn to Ms. Bennett.

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

Thank you, Mr. Chair.

It seems the government is going to put this bill into law. I guess our job is to figure out what we can learn from the process when a private member's bill comes forward.

To start with, was the AFN consulted on this bill?

[Jody Wilson-Raybould]

No.

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

In your vast experience, regional chief, coming to parliamentary committees, do you think a consultation after second reading, when the bill has been voted on in principle, is adequate?

[Jody Wilson-Raybould]

Thanks for the question. I'll try to be brief.

Certainly, I do not believe it's adequate consultation. As we know there are legal requirements to consult with our nations, recognizing any potential impact on us by actions of other governments, legislative or otherwise. So there are grades of consultation.

In terms of first nations-led initiatives or legislation, or legislation that seeks to enact a final agreement or a treaty, there is a different level of consultation, a lower level, because those initiatives are developed in partnership with first nations.

For legislation that's government led—I recognize that this is a private member's bill, the member coming from the Conservative Party, and that this bill is and has been publicly supported by government. The provisions within this bill are not optional to our nations, and therein lies the way that consultation requirements are increased, and increased substantially to the point where there is a requirement for deep consultation with our nations, given that there will be a direct impact on each of our individual communities.

Again, to speak to your question, there has not been adequate consultation.

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

In what we could learn from this...and I think most of us on this side feel that this is unfortunately prescriptive and that it is, in fact, paternalistic to actually prescribe what needs to be done without adequate consultation. It is tinkering, as you stated.

I guess there are two things. Could you outline, in terms of what the national chief has described in creating a space to do this properly, what that would look like, and how you would suggest this go forward in replacing this colonial document?

Second, based on your testimony, and seeing that we're stuck with this thing anyway, would you help create the amendments that would at least get rid of the egregious parts of this bill?

[Jody Wilson-Raybould]

Thank you for the question.

Again, I recognize there is quite a significant level of prescription contained within this bill, in terms of very substantial and fundamentally complicated areas of law that our nations have considered over the course of decades. As I said, and you reiterated, it is tinkering. It's looking at creating amendments to the Indian Act in a piecemeal fashion.

Whether it's this bill or other bills that have been government led, it certainly raises issues and the reality of certain areas that need to be addressed by our nations, but not in a piecemeal or a tinkering way. What our nations are doing right across this country in varying ways is looking comprehensively at moving beyond the Indian Act, not specifically at jurisdictions that we could potentially decide to draw down or not, but at the ability and having success in creating the institutions of government that we need but don't exist right now, that are not defined in any way, shape, or form within the Indian Act. That's a lot of hard and tough work we're undertaking that we all need to know and recognize.

To your question about how we move forward, I view governance and governance reform along a continuum, and this is reflected in our governance tool kit. There are ways that first nations are moving forward with governance by way of sections in the Indian Act that provide for the power to make bylaws. There are substantial examples of how first nations are doing that right now sectorally, whether it be with respect to lands, financial arrangements, or in the area of education, to moving down the continuum in terms of self-government arrangements, whether they be inside a treaty or a stand-alone bilateral self-government arrangement.

There are many examples that exist out there. The way forward, in my view, and how we've sought to structure the work of our organization to support those nations, is to ensure that when a first nation is ready, willing, and able to do something to move down that continuum, whether it be sectorally, or to create their own constitutions through the direction of their citizens, that the mechanisms are available to create the space to enable them to do that.

Currently with sectoral arrangements, although recognizing the government has provided for new entrants into the framework agreement on first nations land management, the federal government still, for the most part, acts as gatekeepers to our liberation, as I call it, when a first nation wants to do x, y or z. Our role, and the national chiefs' role as leaders, as not being the rights holders, is to create that space. That is what we're certainly doing here today, and we're looking to our crown partners to assist us and collaborate in that.

In terms of your last question on helping to create amendments, recognizing and with the caveat that there are serious challenges within this bill, there are some sections, as I referenced, that clearly do not belong in the Indian Act in this day and age. I would be pleased to assist in making those necessary amendments. However, the context of moving beyond the Indian Act must and should be considered through the lens of what our nations are actually doing and not be prescribed.

[The Chair, Conservative, Chris Warkentin]

Thank you.

Mr. Boughen now for seven minutes.