Evidence of meeting #67 for Indigenous and Northern Affairs in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was nations.
A recording is available from Parliament.
Conservative
Ray Boughen Conservative Palliser, SK
Thank you, Chair.
My thanks, along with my colleagues, to you folks for being with us this morning and sharing part of your day with us. We appreciate that.
One of the clauses of Mr. Clarke's bill deals with publication of bylaws in the House. There are about three questions around that.
Do you think the clause of the bill that removes the ability of the minister to avoid wills helps to restore the responsibility to where it belongs?
Regional Chief, British Columbia, Assembly of First Nations
No. I think the provision dealing with wills and estates simply transfers that ability to another level of government, without the consent of first nations, and invokes section 88 of the Indian Act to referentially incorporate provincial law. That may be the choice of a first nation, but the first nation must be provided with the options to decide. In doing so, if this bill were to become law, it would create many interjurisdictional challenges beyond actually determining who or if anybody should approve a law.
I think what you're leading to is the reality that first nations should decide, based upon their culture, their priorities, their laws, that they've created around residency or land tenure systems on reserves. They should create those laws, bearing in mind their specific geographical realities, their culture, etc.
Conservative
Ray Boughen Conservative Palliser, SK
Another provision of the bill would see first nations publish their bylaws in a conspicuous place, like a newsletter or a website.
What's your feeling on that?
Regional Chief, British Columbia, Assembly of First Nations
If Bill C-428 were passed, first nations would have to publish their laws in the local newspaper, on the Internet, and in what is called the First Nations Gazette.
As I stated, publishing bylaws or laws, which could be 10 to 20 pages long, in a newspaper is simply not practical. There are very overwhelming costs associated with it. I agree that...and many first nations have undertaken to publish their laws and their bylaws on the Internet and make them available to their constituents.
Again, as I referenced in terms of the First Nations Gazette, first nations publish their laws right now in that gazette. But the reality, and the optimism I have for our post-colonial transition or our nation rebuilding is that there are going to be tens of thousands of laws made by our nations. Prescribing that they be put in newspapers or in one place would certainly be unmanageable.
Conservative
Ray Boughen Conservative Palliser, SK
As a part B to that question, would you say this measure reflects the national chief's statement of the first nations creating accountability between first nations government and their own citizens?
Regional Chief, British Columbia, Assembly of First Nations
I'm not sure of the context of that comment that the national chief spoke about. It could have been in many contexts, whether in terms of first nations developing financial transparency and accountability, which we have committed to do and are doing through the development of financial administration laws, or otherwise.
I know that our nations, although it's not prescribed within the Indian Act, ascribe to the principle of fairness, that those who are subject to the law should be able to access a law and know what it says. In that sense, our first nations are already undertaking to ensure there is that transparency of the law. Quite frankly, our citizens demand it of leaders.
Conservative
Ray Boughen Conservative Palliser, SK
All right. Good show.
How do you imagine the publication of bylaws working? Right now the bill would require first nations to publish the bylaws on the first nations website, in the First Nations Gazette, and in a newspaper that has general circulation.
Would it be sufficient to publish the bylaws in only one of those recommended places?
Regional Chief, British Columbia, Assembly of First Nations
I think that was The Empire Strikes Back. I don't know what that means about your question, sir, but....
Regional Chief, British Columbia, Assembly of First Nations
To your point, and I recognize the importance of the question, the first nations ability to create laws and determine how they do that should also, and do, provide the means or the mechanism for which those laws are published. They could be on the Internet, and for a lot of first nations that is the medium that is used.
But the choice should be, given the state and the knowledge of a community, the choice of that individual community in terms of what is the most impactful and transparent and accountable way to ensure that it's disclosed to those people who are subject to it.
Conservative
The Chair Conservative Chris Warkentin
You're pretty well done, so we'll move on.
We'll move to Mr. Genest-Jourdain, for five minutes.
NDP
Jonathan Genest-Jourdain NDP Manicouagan, QC
Good morning, Chief Wilson-Raybould.
During your presentation, you said that the negative effects could be associated with the fact that provincial rules are being applied to the reality of communities governed by the Indian Act—more specifically in the area of wills and estates.
Could you elaborate on your position?
Regional Chief, British Columbia, Assembly of First Nations
Thank you for the question.
This is a fairly complicated area of law which first nations have considered over years and decades. The complication arises in imposing the transfer of jurisdiction or authority from the federal government to the provincial government. While that may be a decision that a first nation makes, imposing it creates tremendous challenges, in that to isolate a specific jurisdiction, such as wills and estates, does exactly that: it isolates it from the important matters that first nations have also considered and that must be considered together, involving their laws over land and how they deal with non-members on their reserve lands and how land is held and transferred. Issues such as matrimonial real property which is contained in Bill S-2, come into play here as well and certainly can't be considered in isolation.
The impact of transferring this jurisdiction to the provinces creates a challenge for enforcement of provincial jurisdiction or of a provision that does not address the reality of how the land is still held on reserve under federal jurisdiction. It brings up the interjurisdictional wrangling that will have to be resolved, on top of the challenge we have that there isn't any clearly defined way for first nations to do this under the Indian Act right now and the challenges that this creates.
There are additional challenges in terms of access to appropriate persons, whether they be lawyers or others, to assist in wills and estate areas. There is an added challenge of getting access to adjudication around those challenges as well.
NDP
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
Have you had an opportunity to look at the analysis the Canadian Bar Association did? Their particular section on wills and estates is very thorough and points to a number of very serious problems with regard to this section, including the lack of recognition around customary adoptions.
Have you had an opportunity to take a look at the impact on nations of the customary adoption section?
Regional Chief, British Columbia, Assembly of First Nations
To a certain degree I have, yes, and I have read the analysis by CBA. Quite rightly they point out many of the challenges contained within these provisions or that will result when this bill comes into law.
Questions around customary adoptions and this particular area of jurisdiction really highlight the reality that first nations are unique, in spite of our commonality of approaches and of viewing ways forward. They have traditions, cultures, and differing approaches to exercising our right of self-determination. There must be mechanisms in place to support our first nations in moving down the road of defining how laws will be made and how they will be reflective of the realities we have and the priorities that our communities direct.
Customary adoptions, although recognized in certain regions of the country, aren't recognized in others. This issue really highlights the prescriptive nature of the Indian Act and the challenge of dismantling it and putting in place our own laws, reflecting our own culture and traditions. This is the challenge that we have, and certainly the challenge that has been taken up by many first nations.
Conservative
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Thank you, Mr. Chairman.
Thank you for your attendance here this morning and for your very interesting testimony. I want to follow up regarding some previous comments you made with respect to consultation, specifically consultation regarding this bill, Bill C-428.
The courts and practice have indicated that consultation with first nations is a requirement. From your perspective, when has that duty been complied with?
Regional Chief, British Columbia, Assembly of First Nations
Of course, the duty of consultation, as I said, comes in many different forms, and the requirement for consultation has a range.
In terms of fundamental aspects impacting upon first nations from bills such as this that are imposed upon our first nations, the requirement for consultation is extremely high and deep, as they call it. While it may be difficult to speak to every first nation in the country, there is a need to ensure that first nations' voices are heard and that every effort is made to speak with those first nations who hold the rights and will be impacted.