Indigenous and Northern Affairs Committee on April 18th, 2013

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

I agree with all of that, but with over 600 first nations, as you indicated in your last comment, it's impractical to consult with all 600-plus first nations.

Is it sufficient that consultation take place with the Assembly of First Nations, or, if you have to consult directly with chiefs and first nations, when has that duty been fulfilled? What does “high and deep” mean?

[Jody Wilson-Raybould]

I would submit that it's not sufficient simply to consult with representative organizations; however, representative organizations, as is expressed within an article in the United Nations declaration, have a role to play.

Certainly I recognize, as a leader myself who has been elected by a significant majority of first nations in my province, that I have the opportunity and the responsibility to provide my first nations with information that is out there. At the same time, I never move forward, in my role, to purport to speak on behalf of individual rights holders, but recognize that there must be engagement mechanisms that respect the high duty of consultation enjoined upon our first nations.

I know that you're looking for a specific answer about when consultation is enough. This is something that must be determined by first nations and must be determined—and can be determined quite easily, if the initiative or piece of legislation is developed in concert with our nations.... If it is developed in partnership from the very beginning, then the consultation, as mechanisms or requirements, is significantly reduced, because there is a partnership collaborative approach, in that sense.

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

You hold the office of regional chief for British Columbia with the AFN. Is that correct?

[Jody Wilson-Raybould]

Yes.

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

Are you aware that consultation with the Assembly of First Nations was conducted by Mr. Clarke in the preparation of this bill?

[Jody Wilson-Raybould]

There was no consultation with the AFN with respect to this bill, and zero consultation is simply not legitimate.

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

I understand that the policy adviser for the AFN has met with Mr. Clarke, in fact twice. Do you have information to suggest that my information is somehow faulty?

[Jody Wilson-Raybould]

I hear what you're saying. As the portfolio lead for governance, and being accompanied here by some policy staff from the Assembly of First Nations, I can say that simply is not the case.

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

Who is the policy adviser for the Assembly of First Nations? Is that person a recognized office holder?

[Jody Wilson-Raybould]

We have several of them. One is sitting to my left right now.

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

You have several. Okay.

I also understand, and you may or may not have information, that an invitation was sent to Grand Chief Atleo, but that the invitation was never taken up.

Do you know whether or not that's true?

[Jody Wilson-Raybould]

As I said before.... Maybe I'll just step back a bit.

Consultation, in the question that you raise, is certainly a question of degrees and a question of the relationship that we have between and among ourselves as first nations and with other governments. To speculate about whether or not something took place with the national chief, honestly, you'd have to ask him that.

The reality, as I've stated, is that I sit in this seat as not only the regional chief for British Columbia but as the national portfolio holder for governance for the Assembly of First Nations. Certainly, as elected leaders and as a national executive, we take direction from our chiefs in assembly. We have been provided with direction in terms of lots of different areas, including governance and governance reform, and certainly with respect to imposed pieces of legislation that come before this committee or others.

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

Thank you.

[The Chair, Conservative, Chris Warkentin]

We have Mr. Bevington for five minutes.

[Dennis Bevington, NDP, Western Arctic, NT]

Ms. Wilson-Raybould, it's great to see you here again. I always appreciate your testimony here.

I think you've characterized this bill correctly the way you've laid it out. There are a number of antiquated things that could be taken out of the act, and no one would complain at all. My question on that is: are those statutes in use in any way? Have you heard of them being used to inhibit first nations activities in any way, or are they simply parts of laws to which no attention is paid any more?

[Jody Wilson-Raybould]

There are provisions, some problematic provisions in the legislation, certainly, that our nations are seeking to remove themselves from by exercising self-government or creating self-government. One example would be wills and estates. There are provisions contained in there that restrict trade and barter of produce. Those provisions have fallen into disuse by virtue of the fact that the minister is providing a blanket exemption to those provisions. Essentially, although they remain on the books, they are of no force and effect. First nations in Alberta, Saskatchewan, and Manitoba are of course exercising that ability.

[Dennis Bevington, NDP, Western Arctic, NT]

The one that kind of bothers me, and not just the only one—and we haven't talked much about it—is the prohibition of intoxicants. In the Northwest Territories and Nunavut—I'm not too sure about Yukon—all communities, first nations communities as well as others, have the ability to declare themselves through plebiscite to be dry communities, or any gradient of that from wet to dry. This is a very, very important part of the legislation for those communities. There's no question about it. If this bill passed, does that mean reserves across the country are going to completely lose the ability to say what level of intoxicants are permitted in their communities?

[Jody Wilson-Raybould]

Yes. In British Columbia, as I said, we have 32 bylaws around intoxicants. I know the number surpasses 250 across the country. If this bill is passed in its current form, that would render those bylaws essentially of no force and effect or invalid.

[Dennis Bevington, NDP, Western Arctic, NT]

What on earth could have driven this particular provision to be included in this? Have you heard any discussion that says why somebody would have put this into the bill?

[Jody Wilson-Raybould]

To be honest with you, I can't speak to the intentions with respect to the drafters in this regard. Regulation or laws around intoxicants are contained within every self-government agreement and, in fact, go beyond the prohibition thereof to regulation and looking to expand that jurisdiction around the issuance of allowances and licenses.

[Dennis Bevington, NDP, Western Arctic, NT]

Wouldn't somebody drafting a bill like this talk to some of the communities that have bylaws about intoxicants? That would be sort of the basis of consultation, where you actually understand what's being done under the law right now. Wouldn't you think that one of the prime elements of consultation would be to actually understand what's going on with these types of laws in the communities?

[Jody Wilson-Raybould]

I couldn't agree more with that proposition. The challenge that I have, and I know certainly that first nations have, with respect to this tinkering or piecemeal approach to amendments to the Indian Act is the cavalier nature this bill takes in terms of defining my future for me when there has been so much hard work done by our nations in the area of intoxicants, in the area of substantial governance reform and building institutions that could benefit anyone who is, and in particular first nations, interested in moving beyond the Indian Act. Certainly, any reform in this regard should take that into account.

Thank you for the question.

[The Chair, Conservative, Chris Warkentin]

Thank you very much. Your time is up, Mr. Bevington.

We do want to thank you, Jody Wilson-Raybould and Karen Campbell, for joining us this morning. We certainly appreciate your testimony as well as your willingness to answer questions.

Folks, we'll suspend for a few moments to allow the next witnesses to join us at the table.

The meeting is suspended.

[The Chair, Conservative, Chris Warkentin]

Colleagues, we'll call the meeting back to order.

We had planned to have two witnesses for the second hour. Unfortunately, we haven't been able to locate Professor Settee. If, in fact, she does arrive, we'll make sure we accommodate her and allow for her opening statement.

Mr. Lonechild, thank you so much for joining us. We appreciate your attendance and your willingness to bring forward testimony and your perspective. As you know, we'll allow you an opportunity for an opening statement, and then we'll have some questions for you. Thank you again for being with us this morning.

We'll turn it over to you.

[Guy Lonechild, Former Grand Chief and Vice Chief, Federation of Saskatchewan Indian Nations, As an Individual]

Thank you to all who are gathered here, the members of Parliament and all the staff, and so forth.

My name is Guy Lonechild, and I guess if you were to ask me what my title is, it would be recovering politician, former chief and vice-chief of the Federation of Saskatchewan Indian Nations.

I'm pleased to be here to provide comment on Bill C-428, the Indian Act Amendment and Replacement Act.

I'm very happy that we're on the traditional territory of the Algonquin nation.

As former chief and vice-chief and now being a private citizen, I would restate that our leaders past and present have long held that the Indian Act is wholly inconsistent with our inherent treaty and aboriginal rights as self-determining nations. In fact, the Indian Act has long been recognized as violating our human rights, recognized as such by Canadian courts, international forums, and academic discourse, each reaching that obvious conclusion.

Above all, the Indian Act was unilateral legislation forced upon first nations citizens without their consent, creating catastrophic results.

The most critical message I bring today is that any unilateral changes to the act circumvent Canada's legal and constitutional obligations to consult with first nations. Any amendment or replacement that is not led by first nations people will perpetuate Canada's colonial, unilateral, and at times disastrous relationship with the first people.

I'd like, however, to have the committee ensure that there is full consultation, as outlined at the Crown-First Nations Gathering, to fully consult on any bills concerning the Indian Act.

Treaty first nations assert that the passing of any legislation, particularly the Indian Act, is in direct violation of the treaty relationship. It was, and still is, a complete abrogation of the consensual partnership between our respectful sovereign nationals. Settlement in Canada was facilitated only through the mutual consent of the treaty signatories, each of whom were sovereign and consenting nations.

The relationship between indigenous treaty nations and the crown was premised on mutual consent between sovereigns. It is critical to understand that consultation and consent are implicit in the original treaty order, as a natural command to consensual agreements made, and the relationship between two sovereign nations. The treaty order was to be one of consensual nation-to-nation relations, where the indigenous nations delegated certain responsibilities to the crown in a reciprocal arrangement of a shared territory, with the crown's assistance.

The relationship was not an agreement to relinquish sovereignty, nor was it an assent to domination. Instead, the indigenous nations entered into a nation-to-nation, federal-like arrangement with the crown, whereby the jurisdictions and responsibilities of the signatories were established, with sovereignty and jurisdiction maintained. The Indian Act was a result of unilateral government action that was designed for colonial approaches to first nations, based on the crown's belief of the inferiority of first nations to that of the crown, which only reinforced colonial law and ideals.

The Indian Act created devastating economic barriers. Indians were prohibited from making claims against the crown for the purposes of land claims and were also prohibited from benefiting from their land. The Indian Act has controlled for too long first nations land tenure systems, property, and economic initiatives.

So in this move to improve the lives of first nations people, I would come to the conclusion that the Indian Act is still an avoidance of treaty implementation This is evident in sections 32 and 33, where Canadian law may not have adequately recognized certain rights, benefits, or protections to treaty Indians, and in fact has further defined and has since limited these treaty rights.

Sections 92 and 105, more specifically, would state.... In section 105, where the act refers to “in any manner by which he may be identified.”, it seems also redundant, if not offensive.

Section 114 of the Indian Act that allows government to enter into agreements with religious or charitable organizations to educate Indian children, residential schools, should obviously be repealed.

Repealing section 82 of the act and replacing it with proposed section 86.1 will be a very positive step in empowering first nations to have more authority over decisions made by band councils. Once passed, it will allow for much more timely decision-making and planning by first nations.

Where there is caution is in repealing sections 42 through 47 which deal with wills and estates. That proposes to apply through the operation of section 88 of the act. If section 43 is repealed, the minister and AANDC will stop making decisions. Where otherwise it may have been helpful administratively, families will then be left to bear the legal costs for making application to the courts themselves. This process is expensive and very complex when families have to deal with the Canadian court system. Sections 45, 46, and 47, if repealed, would result in a substantial change and Indians may choose not to seek a lawyer or to put together a will altogether, because of the cost.

On section 47, again, for rural and remote communities it may be very difficult and not economically feasible to pursue wills. Removing this section leaves individuals with less protection and it would be detrimental to those living on reserve.

One of the key questions that has been raised most recently that I have heard in my discussions with other residential school survivors is, given that many first nations people who went through residential school processes may or may not have constructed a will, will they be grandfathered in if the legislation is passed?

Lastly on section 85.1, it's important to note that for communities who wish to maintain the authority to ban alcohol from reserve, repealing this section will have a negative impact on those who wish to employ it.

The proposed amendments under Bill C-428 are properly characterized as historical housekeeping of archaic and little-used provisions of the Indian Act. The amendments proposed under clause 7 of Bill C-428 will increase costs and complexity and there will be confusion over the applicable laws that apply to on-reserve estates across the country.

Finally, the AFN and other first nations organizations would like to ask that this portion be tabled until there is more consultation. This may or may not be so, but again, consultation with our first nation peoples, their organizations at all levels, should be encouraged.

I'd like to thank you for this opportunity to provide some comments and suggestions and to field some questions from the committee.