Indigenous and Northern Affairs Committee on April 23rd, 2013

[The Chair, Conservative, Chris Warkentin]

Thank you.

We'll turn to Chief Twinn.

[Chief Roland Twinn]

Thank you.

I'll be as brief as possible. Forgive me if I'm going to switch hats as I go along.

First, I have a message from the executive board of the Treaty 8 chiefs of Alberta. We are fundamentally opposed to Bill C-428 for reasons of process. We are first nations with a treaty. A treaty is an agreement signed between sovereign nations and is the prima facie evidence that we have sovereignty. It is impractical or insulting to have changes made to an Indian Act that affects us, without proper consultation with the holders of the rights.

As far as the specifics of the question are concerned about the removal of these archaic, old-type provisions, yes, some of them should be removed. However, removing some of them would leave a vacuum. An example in our reserve is that if some of these provisions were removed, the next day there would be no ministerial approval for somebody to log the reserve. If one of the band members were to decide to log off the reserve and sell the logs and keep it to themselves, what's to stop them?

I've heard that you can pass a bylaw. What use is it to a first nation to pass bylaws, when there is no enforcement agency for those bylaws? You can give the RCMP your bylaws, in which the officer has the authority to use discretion as to whether or not he's going to enforce them. The RCMP have no connection to a chief and council, and as part of a justice system are not influenced by the chief and council. So again, what is the use of passing a bylaw?

Even the publication of bylaws in the First Nations Gazette—I've never even heard of it. If I ever wanted to pass a bylaw that I wanted to hide from my members, that's where I would publish it. Not one of them has probably ever heard of or even seen one. That in itself is a strange one, for my part.

Taking off the hat of grand chief and throwing on the hat of chief of the Sawridge First Nation, I say we're done with bylaws, as far as we are concerned. We understand section 35 of the Canadian Constitution Act, 1982. We have the inherent right to govern ourselves and we have exercised that right. As a matter of what we've done with that right, we have spent six years developing our constitution for our first nation. It was passed on August 24, 2009. Out of it has come our own laws. I am a four-year term chief—not under the Indian Act but under the Sawridge election act, as born out of our constitution, which has been recognized by the Government of Canada by way of an order in council removing our first nation from the election sections of the Indian Act.

Another issue is that even with some of these changes and the making of bylaws, there is no proper consultation, in my view, when you read what the act actually says. The preamble talks about consultation with first nations, but once you get past that it says the minister will consult with interested parties and organizations. I have a problem with that.

Our people seem to be the most represented people in this country, yet we're not heard. I'm the official, elected chief of our first nation. Our people are represented by me, two council members, AFN, CAP—the Congress of Aboriginal Peoples—and NWAC. Yet none of those organizations has come to our reserve and asked what we wanted. Is that really proper consultation? Do they really represent us? Where is the respect for our government-to-government relationship?

That's where I think we need to go, and speaking as the grand chief of Treaty 8, we have presented a document to the Prime Minister of Canada to talk about the treaty relationship and to deal with some of these issues. There needs to be a recognition of our sovereignty, our jurisdiction and authorities, and our powers, so that we can come to a negotiated agreement that will answer the questions you're trying to answer.

It is not really up to the Government of Canada to fix all our problems. We at the first nation level have recognized that we have our own responsibilities and we're moving forward in that manner. The government should be making resources available for first nations who want to go down this road and consider it an investment in the future, so that we are not a “burden” on the Canadian taxpayers. Nobody wants to be a burden.

There needs to be some healing within the community so that we can rise up and take our rightful place in this country, which we agreed to share. On our part, my great-grandfather signed the treaty in 1899 at Willow Point on Lesser Slave Lake on June 21. That was Treaty No. 8. He was an original signatory.

I'm the seventh chief since then, so we follow our customs and traditions. We've had maybe 10 elections in the last 115 years, if that, and that's all been by acclamation. We follow our own traditional ways and we want to continue that way without any interference.

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you, Chief.

Before we move on, I'll note that we have three other folks who haven't spoken yet, and we want to ensure that you have an opportunity to interject or to jump in if you'd like. You might want to make sure of that.

Grand Chief, please.

[Grand Chief Craig Makinaw]

Good morning. I'll make my comments brief.

I agree with what the other grand chiefs are saying. My comment is going to be short. I guess this bill is a private matter that affects our constitutionally protected rights and affects our treaty relationships with the Government of Canada, as the other grand chiefs have said. That's the concern for me as the chief of the Ermineskin and the grand chief of Treaty No. 6.

Based on our treaty relationship with the federal government, that's a concern we have. If you're going to go ahead with these Indian Act changes, there are some constitutional problems that are going to come into play here, and our treaty has to be respected. It's a two-way street, as the other grand chiefs commented earlier. If we're going to work together, we have to work together in a good way, and the way that we're doing it is not the right way. It should respect our treaty.

I don't want to say too much more. My last comment will be similar to what my fellow grand chiefs have said. We have a constitution, too, that was passed in 1982. We're like the Sawridge Band. We have our own constitution and we have our own laws, custom laws. We do that.

I'll just leave it at that and let the others speak. I'll keep my comments brief.

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you, Grand Chief.

Ms. Sutherland, it's over to you.

[Phyllis Sutherland]

I'm just going to make a brief statement. I wasn't really prepared. I only got the invitation five days ago

If you have a chance, I'd like to suggest that all of you read this research paper. It's very interesting. It was done as a research paper for the National Centre for First Nations Governance. The title is “Like an Ill-Fitting Boot”. It really explains a lot about the Indian Act, the lack of consultation with bands, and what reserves are and are not allowed to do. In this way, says the paper, the act “affects the abilities of First Nations to shape more accountable and democratic governments”, and it really plays a big part in how bands handle their affairs and consultation with their own people.

Just to make another comment on Mr. Ahenakew's comment about the language in the schools, I'm a first nation person who went through residential school also, and our community has lost its language completely. I'm ashamed of my grandkids growing up and not knowing any of their background or their culture. It's something that we've only started to get into in the last couple of years. I see the importance of bringing it into our schools, and not just a little band-aid, like bringing in the Cree language to grade 3. It's not helping them. They need to encompass the whole language in the school—

[A voice]

In the community.

[Phyllis Sutherland]

—and in the community, yes.

That's all I have to say for now. Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you.

Ms. Venne, we'll turn it over to you if you'd like to join us. I think the conversation has broadened out from our original one and that's great. I think that's what we want to do. We want to ensure that. We'll turn it over to you and then we'll turn it back to others among our guests.

If you want to jump in on something that somebody else has said or on a different aspect of the bill, we'd like to hear from you. I'll just put that out there so you can be thinking about it.

We'll turn it over to you, Sharon.

[Sharon Venne]

Thank you for giving me the time to speak. I think I probably know more about the Indian Act than anybody else in the room. I'm not bragging, but I was the one who indexed it in the 1970s. Most people probably have a copy of the index that I did on the Indian Act.

I think the problem, the issue, of the piecemeal amendments to the Indian Act is that, going back to the 1969 white paper, and even before that, when people appeared in Ottawa in 1948 and 1949 about the Indian Act, the act put in place a regime that cannot be changed piecemeal. It's all interrelated, and somehow the government over the years created sections.

For instance, the reason they didn't want Indians trading, selling stuff off the reserve without their permission, was that it was impacting on the non-indigenous people who were farming around the reserves. They couldn't make as much money as the Indians. So they put sections like that in the Indian Act.

Making piecemeal changes to the Indian Act has a ripple effect. It also affects the constitutional of rights of people. Section 91 lists “Indians, and Lands reserved for the Indians”. When you remove sections of the Indian Act related to wills and estates, you are actually moving us from the section 91 jurisdiction into section 92 jurisdiction, which is in the province. So you're actually making a constitutional amendment.

I think this is a fairly significant amendment that you would do. I've talked a lot with people about this legislation at the first nation level, and 99.9% of the people I've talked to since last November about this legislation.... I've asked people in the communities, “How many people in this room have a will?” If we're lucky, one person, in a room of 200 or 300 people, will put their hand up. That's it.

This is not something that our people generally engage in—for spiritual reasons, for cultural reasons. They just know that certain things are done a certain way. Then, when you start imposing provincial restrictions, provincial criteria, on who's adopted, who's not adopted....

I have adopted brothers and sisters who are adults. People are adopted as adults in our customs. They get things at the time of passing. This is not recognized in a non-indigenous system.

I mean, I don't know what the purpose is, but in the communities there's a lot of concern about what the government is trying to do now—again—because that's how people perceive it. I think it would be a good idea to step back and really engage in what the chiefs have talked about: a respectful relationship. As the Supreme Court of Canada said numerous times, there has to be some kind of reconciliation between the two peoples. The question is how you achieve that reconciliation.

This is not a step in that direction. This is not stepping in the right direction. I think you need to step back and evaluate. The CBA made a number of comments from a non-indigenous legal point of view. From an indigenous legal point of view we have a lot of issues, because we have two conflicting legal systems coming into play here, the indigenous legal systems and the non-indigenous legal system.

There will be a lot of problems, and this is just the beginning of seeing what those could be. There really hasn't been a study, I believe. I don't know if anybody has talked to the provincial people who deal with these areas and asked them what they think of all this, or told them what kind of burden will be put on them, or asked them whether they know anything about what they will be dealing with.

The federal government is going to off-load onto the provinces something that is...and I would say that most of the time they don't have a clue about what they will be dealing with. It will cause a lot of problems internally and externally, within the nations and outside the nations, and in the provinces their wheels will start grinding to a halt, so to speak.

Even now the public administrators, when they have to deal with first nation issues, don't know what to do with us. Mainly it's a lack of understanding. Most law schools don't teach about the traditional legal systems of the first nations. They don't learn it, so they don't know what to do. Then they try to impose non-Indian values on us, which causes more problems.

I think there has to be a step back, or a study. I think a lot more questions need to be asked for the people who are....

You're going to off-load to the provinces. What do the provinces think of this? I don't know if they've been invited to participate in these meetings, but they probably should be, as to how they're going to deal with this when it administratively has to be devolved to them. That would be a good question to ask.

But there are some legal issues about devolving a constitutionally protected people onto the province without our consent. Free, prior, and informed consent is our right as treaty peoples, and that has not happened. This is not a consent consultation process that is going on here. This is...we're here and, you know, we're going to leave, and most of the time when I've appeared before the committee, what we've said about what needs to be changed has not been taken up, which is why we have raised the issue in Geneva on a number of occasions.

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you.

The conversation has definitely moved into all aspects of the bill. I think we're all mindful of the time, but we'd like to now open it up. I think most of you have spoken generally about wills and estates or have touched on that as well as bylaws. I guess the one question would be, are there provisions that haven't been spoken about with regard to those aspects and that you'd like to make sure we hear about?

The other aspect that we'd like to hear about from you is the process contemplated by the bill as it relates to continuing a discussion about replacement of the Indian Act. Obviously, the aspects that are included in changing or prescribed in making changes are limited. They don't apply to significant portions of the Indian Act. Are there lingering aspects, I guess, of the wills and estates discussion, or the discussion surrounding bylaws, or the process that's being contemplated?

We'll begin with Mr. Ahenakew.

[Barry Ahenakew]

Meegwetch.

What I would like to see is continued dialogue. If you don't have dialogue, then things aren't going to happen. Our chiefs have to receive money from this outfit to be able to work, to get together, and to put work together on this issue from a first nations perspective.

I can talk about governance and elections. Traditionally under the Indian Act, when I was chief, we used to pick an electoral officer. When I was there, we used to pick a fellow from the Meadow Lake area, an old cowboy. He'd come to run our elections. Now we have a band member running our elections, and there's chaos at the reserve. That band member sits on boards with the chief and council, and that should never be taking place. It's a conflict of interest. That should never happen.

If you're under the Indian Act—and there are some bands under custom—then for elections there should be a neutral, independent electoral...even Elections Canada could come in to run the election. Then nobody's going to have a squabble. Otherwise there's a squabble out there. There are over 400 people on the reserve who signed a petition against the electoral officer. The chief and council—a majority of them but not the whole works of them—picked this woman to run their elections. That has to be changed, just for the sake of fairness for people.

I talk about the demoralizing situation that student residences have gotten us into. I really have a hard time—and it's not only young women but also young men—with the amount of abuse that goes on. It's not liquor now so much; it's drugs. Whether it's prescription drugs or illegal drugs or whatever, it's rampant. You get those suicides, as I was talking about earlier, taking place on a reserve in Ontario here. I don't know how many, exactly, but there are quite a few.

We can do what we can, but we need the dollars to work with culture and language, to restore pride in our people, pride in our history, pride in ourselves as a people.

It's a heck of a job to be a chief or to be on council today. I know it's a heck of a job.

The housing dollars and capital are still the same as when I was chief. A lot of people don't really agree with CMHC—in our country, anyway. There have to be systems. It needs to be looked at, but how is it going to be looked at? Our chiefs have to be involved with their advisers to be able to put things together, to meet with you guys, to have a common understanding and eventually agreement on what needs to be put in there and what needs to be changed.

You are working ahead. You are doing things. As I said, I congratulate Rob Clarke. He's being called a sellout by a lot of our people, but he's not being a sellout. He's being a visionary for the future.

The Ahtahkakoop and the Mistawasis, and the other chiefs who signed treaties, have to change their lifestyle. We have to try to do something today for those young people. Otherwise you won't even have chiefs in the future. People will be so doggone demoralized. Everybody will be on substance abuse. It's crazy.

[The Chair, Conservative, Chris Warkentin]

Chief Twinn.

[Chief Roland Twinn]

I'm going to speak more on the process as the question. The bill contemplates that the minister will make reports to the House of Commons and will consult with those who are willing and with “organizations”. Then I go back to the point that the organizations are not the proper authorities to be dealing with legislation that affects the treaty rights of the first nations peoples.

The individual members of the first nations hold the treaty rights, not a government-funded AFN. That in itself is kind of problematic, because if the AFN cannot play ball with the Government of Canada, it does not get funded and it does not exist. For us, that's a fundamental flaw right off the bat.

As far as our nation is concerned, Sawridge First Nation has already sent in our band council resolution, our BCR, over a decade ago, stating that the AFN does not represent our interests. How can one organization represent the interests of 612 first nations recognized in Canada? We are all at different states. The Sawridge First Nation receives less than 10% of its funding from the Governments of Canada and Alberta. Ours is own-source funding. We understand economic development, but economic development is not an answer. It's a tool that can be used to come to the answers.

I wonder if the committee has contemplated section 52 of the Canadian Constitution. Section 52 states that anything Parliament does that conflicts with our rights is “invalid”, so right off the top, is Bill C-428 invalid? It's going to affect our legislative powers at the Sawridge First Nation, which we have exercised. We have our matrimonial properties act. We have our governance act. We have our financial accountability act. These acts were written by the people and passed by the people, for which I hold the funds, and I spend their funds on their behalf. How much more transparent can I be?

My salary is set by the people, not by chief and council. I've taken that off the plate as the Indian Act contemplates, so I cannot pay myself half a million dollars and be at a Prime Minister's level of pay. My pay is set by the members themselves. Nothing could be more democratic.

Is it worth the legal costs of challenging this law in the courts of Canada on its constitutionality? Is it really worth the Canadian taxpayers' dollars to go through all that just to have it thrown out in court, which I believe would not be a hard task for first nations to do? It might even get thrown out on a judicial review, but again, there would be taxpayers' dollars getting spent on something that should not have come forward.

The Indian Act is not the problem. The problem is the relationship. If we had a healthy, respectful relationship between our nation and the Government of Canada, I wouldn't have to be here today. We would be under self-government legislation. We would be looking after ourselves, which is all that we all want to do. Every human in this world wants to control their destiny. That's all we want to do as first nations: take control of that destiny.

We want to get out of this paternalistic legislation called the Indian Act, which was not spoken of at the time of the signing of Treaty No. 8 in 1899. Nobody said to any of the original signatories there, “Oh, by the way, by signing this treaty of sharing, you'll be subjugated to the Indian Act, in which the minister in Ottawa is going to be controlling your destiny, and we will be taking your children away and putting them in residential schools”. That was a double whammy for our nation, because we suffered a flu epidemic in the early 1900s in which a majority of the adults perished. There were far more children than adults and they were all taken off to residential school, and you wonder why there's a loss of culture, a loss of language? That needs to be healed.

But in a true government-to-government relationship, we should be looking at putting together some resources for those who want to.... Look at the investment in the future, as I said earlier. That's one of the fundamental problems that I see with the process. You're ignoring the duly elected officials. You're not allowing us to have a say in what changes these Indian Act provisions will have. Is there a resource to be put in place for when you take away some of these provisions, which, in my example, would allow a member—or maybe it would not allow it, but it would not disallow it—to cut down all the trees and sell them for his own personal profit?

Should there not be something, some transitional phase for some of these, through which we can have our own legislation put in place? Do I need to have an agreement with the RCMP or maybe the Lakeshore Regional Police Service, which is funded by the federal and the provincial government, for the five first nations along the lakeshore to understand our bylaws and be given the authority to actually enforce them? Is there a proper court in which these laws can be heard?

Where are our institutions of governance which we need to control our destiny and to be self-governing? I've been through the Federal Court of Canada. It is not friendly to first nations. There is a fundamental flaw if we go to that court, especially if we're going against the federal government.

Who appoints judges—the first nation chiefs? What are judges sworn to protect? It's the constitution and the laws of Canada. So why would they ever rule in favour of a first nation?

These are the things we need to strive towards.

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you.

Are there any other follow-up comments?

Mr. Ahenakew.

[Barry Ahenakew]

The Nisga'a agreement that was made also encompasses total population. The contribution agreements that happened for our people are just for the reserve population. Yet when it comes to elections, those people living off reserve have the opportunity to vote.

For one thing, that mail-in ballot system should be booted the hell out to Mars. You can send that to Mars, because that is the easiest way for people to cheat. It should be gone. If people are going to vote, they should come and vote at a designated site.

[The Chair, Conservative, Chris Warkentin]

There may be an opportunity for this committee to review the election provisions at some point. This bill doesn't do that, but we certainly hear what you're saying.

[Barry Ahenakew]

Then there are people who are living way out there, from different reserves, and they don't vote. They don't give a hoot in hell to come and vote. They're making their living out there. But yet over here sometimes their name appears on a ballot. That's the kind of bullshit we've been subjected to election-wise.

Pardon my language. Thank you for listening, and I think I'll go home.

[The Chair, Conservative, Chris Warkentin]

Mr. McKinney, we'll hear from you.

[Michael McKinney]

I'll just make a few comments, following up on Chief Twinn.

I've worked with the Sawridge First Nation for over 26 years. So while I'm not first nations myself, I've had a lot of experience with the Indian Act. The act is quite short. It's only 122 sections. It looks very simple on its face, but over time it's gotten very thick and heavy with cases and interpretations. There are still provisions in it that, if you read them, are not true because cases have overturned them or struck them out, and Parliament hasn't cleaned that underbrush up yet.

There are a number of issues. You have to be careful when you try to make changes to that very complicated regime that has evolved over time because unintended consequences can happen.

In clause 2 of the bill, it talks about collaborations with first nation organizations. The chief has commented on that. There really should be consultation with first nations. It shouldn't be a collaboration and it shouldn't be with organizations. It's the first nations who the duty to consult is owed to, and that's who should be consulted. Prior to enactment or changes to the Indian Act, the first nations are the ones who are affected by the Indian Act, and they represent their people.

You've already commented on the barter and trade. If you take away ministerial approval, who approves the trade of materials? The resources that are on reserves will just be left in a vacuum. There should be a transition. Perhaps the chief and councils or some other system could be put in its place. Sometimes if a chief and council were put in the place of the minister, at least there would be somebody there to approve changes.

Under wills and estates, the biggest concern that I would have would be the repeal of subsection 44(3) and paragraph 46(1)(d). Both deal with lands. Those sections basically said the province didn't have jurisdiction to deal with the devolution of real property in reserves. Now, with the repeal of those sections, are we saying the provincial law applies to reserves? That is a transfer of jurisdiction, and I believe the CBA addressed that earlier.

The repeal of section 85.1 may cause problems for first nations. Sawridge doesn't have an intoxicant bylaw, but there are first nations that would definitely be affected if suddenly that power is taken away. I'm certain a court would say that power is not inherent in section 81. Otherwise why was section 85.1 passed in the first place? That history is not going to be erased.

One of my biggest concerns is proposed section 86.1. It requires the publication of laws. We've taken away the requirement of the minister to approve bylaws. But now in a very paternalistic way we've said, here's how you're going to publish your laws, instead of leaving it up to the first nation governments to publish their laws in a way that is appropriate for their first nation. It's quite onerous because if you have a thick land use bylaw, and you have to publish it in a local newspaper, that could be quite costly, and probably not too effective because the people who read that local paper might be largely uninterested.

Those would be my comments.

[The Chair, Conservative, Chris Warkentin]

Thank you.

I think that we've heard loud and clear the concerns.

Grand Chief, we'll let you be our final—

[Grand Chief Craig Makinaw]

This is my last comment. It's on off-reserve members.

There have been surveys and discussions, presentations to them that have been done in the prairie provinces. The problem I see with that is that if they're going to do that, and talk to our members who live off reserve, why can't they put the funding in towards our CFAs—our comprehensive funding arrangements—to help us provide services to them? It's like we're being penalized. In our CFAs we can't even address that issue, so it's something I want to bring to the attention to the committee. That's one of the problems we face in our CFAs. We can't provide services to our off-reserve members because we're restricted on our CFAs. That's an issue that we have. It has been brought to the table over the years, and we'd like to remind the committee of that. That's still an ongoing problem we'd like to see addressed.

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you.

I do want to thank each and every one of you for coming today. We appreciate your comments.

As Mr. McKinney rightly described, some of the issues in the Indian Act are in fact underbrush. Our committee is tasked partly with trying to clean that up, but of course there are the issues of unintended consequences. Hearing from you today is helpful in our deliberations, and we'll be hearing from more folks who represent first nation communities across this country as well. We appreciate that you've been broad in your perspective and that it reflects many of the concerns, and also the aspirations, of folks who are here at this table as well.

So we appreciate hearing from you and look forward to working with you in the future as we undertake our work at this committee.

Again, thank you. On behalf of the committee, I do appreciate, and we appreciate, your attendance today.

[Grand Chief Craig Makinaw]

Thank you.

[The Chair, Conservative, Chris Warkentin]

Folks, we'll now adjourn.

The meeting is adjourned.