Evidence of meeting #70 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 indian.
A recording is available from Parliament.
Professor of Law (retired), As an Individual
Yes, I do. It should simply be “First Nations”. You're dealing with first nations and their representatives, whoever they might be.
The only way to deal with a first nation is to call an assembly of the entire communities, which is probably not what you want to contemplate. It's not practical. It will be the representatives. People deal through their representatives, whoever those might be, not “organizations”.
I certainly agree with that.
Conservative
Kyle Seeback Conservative Brampton West, ON
That leads me down another line of questioning that I've picked up a number of times, both at the committee and then subsequently with some witnesses.
When we talk about consultation, I've asked a number of questions. I know you have such extensive knowledge, so I want your opinion on this.
I've asked, “Does consultation count if you were perhaps to consult with the AFN?” The answer I got was, no, that's not considered consultation.
I've then asked, “What if it's the AFN and regional chiefs?” Some people have said, no, that doesn't count as consultation either.
I've said, “What about AFN, regional chiefs, and all first nations chiefs?” I was told at one point, no, that's not consultation either; you actually have to consult with every single first nation community.
By my count, that's about 631.
What's your view of what constitutes adequate consultation with respect to this duty to consult that we're hearing an awful lot about at the committee?
Professor of Law (retired), As an Individual
There will be two parts to my response.
First, generally, what is consultation? What is good consultation? I would refer committee members to the description by the late Chief Justice Brian Dickson, in his formal published report to Prime Minister Mulroney, when he made his recommendations on the mandate and the membership of the Royal Commission on Aboriginal Peoples.
In that report, you will find the late chief justice's views on what is reasonable consultation. It includes—and this is the heart of it—that you will go, you will talk to people, and you will ask them their views. Then you will reflect on what you've heard. Then you will make some suggestions that seek to incorporate those views. Then you will go back and say, “This is what we heard you say. This is what we've done in order to try to include your views. Did we get it right?”
That's the gist of the late chief justice's remarks.
On the other point, which of course is a very difficult one, I would simply refer you to what state representatives do—and by “state” I mean state in a national sense, as in Canada is a state, and the U.S. is a state—in difficult situations, such as when they have to deal with different parties, or with revolutionary times, or with whatever. You do your best. You do your best and you try to deal with substantially all the different views and perspectives that exist.
I don't think we can go much beyond that. Other than that, we get tangled into little details about this and that.
I suggested at the beginning of my presentation that I would try to make some suggestions based on general principles, and this is what I'm attempting to do here.
Conservative
Liberal
Carolyn Bennett Liberal St. Paul's, ON
Thanks very much.
I think we've heard from the majority of the witnesses that the duty to consult did not take place on this particular piece of legislation.
Thank you, Mr. Chartrand, for reminding us of Justice Dickson's description of what it would look like. I think we're still hearing that this was the strength of the Royal Commission on Aboriginal Peoples, that they did go out and talk to communities and were able to hear directly from the people.
My colleagues have been asking what constitutes appropriate consultation. Maybe I'll start with the regional chief on this question.
Regional Chief Bellegarde, were you consulted on this? You are the regional chief for the member of Parliament whose private member's bill this is. Were you consulted on this bill?
Chief, Federation of Saskatchewan Indian Nations
No. No, I was not consulted on this bill.
Just to make some comments generally, in light of the Prime Minister's commitment last year in December at the crown–first nations gathering, and in light of his commitment on January 11, to me this bill is very premature.
He talks about a process for treaty implementation. He talks about it nation by nation, treaty by treaty, looking at new mechanisms to implement treaties, and looking at new mechanisms of the crown to look at implementation of section 35.
So we're starting to look at a process to do that, and now along comes Bill C-428. If it's passed, where are the linkages? Where's the coming together? You know, when the Prime Minister is saying this publicly, and then a private member's bill is passed.... That's why I say scrap this bill.
In light of this other process, we're hoping that will be meaningful consultation and accommodation, with full inclusion and involvement of the indigenous peoples. That's what we want to push for.
Liberal
Carolyn Bennett Liberal St. Paul's, ON
I think we've heard a lot of people saying that as well. And it's not as if this government has too much interest in harm reduction, but if we were going to mitigate the effect of this bill, if the government refuses or of the member refuses...because I do believe there would be all-party consent if the member chose to withdraw the bill. We've heard that the least they could do would be to remove the pieces on wills and estates and fix the confusion on dry reserves and special reserves.
Regional chief, is that what you would suggest if they're going to insist on pushing this through, or is there anything that could be done to fix it? You don't think it's even worth wasting time on amendments?
Chief, Federation of Saskatchewan Indian Nations
Honourable member, my position would be to scrap the entire bill and to establish the process the Prime Minister committed to and work from there. That would be more meaningful. There would be more acceptance and it would drive the process further collectively. If this bill proceeds, there will be fighting every step of the way, and that's not proper and respectful.
The Prime Minister made commitments. We're hoping that all parties will say, let's just scrap this bill, let's work with the Prime Minister and cabinet and see what...because they've made those commitments, and we're starting to go down that road about outlining a process to do that for treaty implementation, nation by nation, and to review comprehensive claims. Go back to the eight points that were committed to on January 11. That's where we want to keep going back—not a unilateral private member's bill.
I don't even want to tinker with this; just scrap it. We've created a dialogue, fantastic. But there has to be a more meaningful process with full inclusion as we move towards getting out of the Indian Act. We've had it for over a hundred years, and we're not going to change this, unilaterally, overnight. There has to be a respectful process, and I believe that's the road we have to keep going towards.
Liberal
Carolyn Bennett Liberal St. Paul's, ON
So to your mind this bill undermines the commitment that the Prime Minister made at the crown-first nations gathering and then in the points that were agreed on January 11.
Chief, Federation of Saskatchewan Indian Nations
Totally. I don't see the connection at all and that's why I'm questioning this. That's why my position would be to scrap this Bill C-428 and start fresh with the process that's been outlined. That's where we need to go, looking at new mechanisms with full support from the Prime Minister's Office, looking at new institutions of the crown through the Privy Council Office to implement section 35 in treaties, and respect that nation-to-nation relationship. That's where we need to keep going.
Liberal
Carolyn Bennett Liberal St. Paul's, ON
If in good faith we were going to begin the work of replacing the Indian Act, you are saying that you would start with the commitment about implementing the treaties. Then I think what we heard from the regional chief from British Columbia was that we should create the space bottom up to actually build capacity community by community, so that you actually build your own laws.
So tell me a little bit about what that would look like and how long you think it would take and what resources would be required. What would a real commitment to get on with this job properly look like?
Chief, Federation of Saskatchewan Indian Nations
You need a long-term strategy of 5, 10, 15 years. There has to be a strategy in place.
For example, I'm from Treaty 4. Where is the Treaty 4 process to get out of the Indian Act collectively? Where are the Treaty 6 processes? Where are the pre-Confederation treaties, the Robinson-Huron Treaty? We have all of these kinds of treaties in Canada. The issue becomes lack of implementation, lack of legal effect for those treaties, and so there has to be a process. I envision maybe 20 to 30 processes over time, but that will take us out of the Indian Act.
I don't want to live under the Indian Act, no question, but the vehicle and the process and mechanism to take me away from that would be a treaty implementation act. That has to be done for Treaty 4. Little Black Bear is part of Treaty 4; I can't work in isolation. I'm one of the 633 first nations, no question, but we're part of Treaty 4 and will always be part of that Cree nation. So Treaty 4 needs a process.
Alexander Morris represented the Queen when Little Black Bear entered into that relationship with him on behalf of the crown, but unfortunately there was nothing to give it legal effect. That Indian Act, that federal piece of legislation, is down here—not that nation high up—so we need a process treaty-by-treaty to give that effect. That to me is what the Prime Minister committed to, and I think we have to hold him and cabinet to account for that. I think this cabinet committee and the different parties you can all agree to start fresh from the beginning and go back to that. That's what I would encourage.
Conservative
The Chair Conservative Chris Warkentin
Thank you very much.
We'll now turn to Ms. Ambler for the next seven minutes.
Conservative
Stella Ambler Conservative Mississauga South, ON
Thank you, Mr. Chair, and thank you to Chief Bellegarde and Professor Chartrand for being here today.
My questions relate to sections 82 and 85 regarding by-laws. Mr. Clarke has stated that his reason for putting forward this amendment to the Indian Act is that first nations governments are treated differently from other governments with respect to their internal affairs. At present, section 82 of the Indian Act requires by-laws made to be provided to the minister for approval. The minister has the power to disallow them.
I think that bands should have to submit their by-laws to the minister and that the minister should have the power to disallow them if he wishes.
Mr. Chartrand.
Professor of Law (retired), As an Individual
These were the objectives that were viewed as appropriate in 1876, when the members of the Canadian Parliament believed that indigenous people, Indian people, were going to become extinct. They were setting up a system to deal with the extinction of Indian people, to pursue assimilation.
None of these provisions makes sense today. The whole thing has to be replaced. What's essential, I think, is for the government to restructure itself in order to be able to do the right thing in that regard.
One way to do this is to deal with the departmental structure it has now and to create the new institution under a senior cabinet minister—you can call it “crown treaty relations office”, for example—and to do what you're doing in the modern treaties: to make the historic treaties effective through negotiations with treaty representatives. That's the process, the institution that needs to replace the existing one.
Conservative
Stella Ambler Conservative Mississauga South, ON
We are most definitely, under the present system, making some very good headway on those types of negotiations.
Professor of Law (retired), As an Individual
I haven't seen anything in respect to reorganizing government institutions yet.
Conservative
Stella Ambler Conservative Mississauga South, ON
I'm talking specifically about treaty negotiations.
Let me continue, now going on to section 85, specifically with regard to by-laws relating to intoxicants.
My colleague Mr. Clarke has stated that the goal of this section is to empower first nations, which we've discussed, and to remove the minister from the equation. The intoxicants section was a sort of unintended consequence, or so I understand. I have a little inside information that there might be a technical amendment—
Conservative
Stella Ambler Conservative Mississauga South, ON
—so that bands can retain this power.
At that point, you would support that amendment completely, I would imagine.
Professor of Law (retired), As an Individual
I would, subject to the general comment that I made before, in my opening remarks.
Conservative
Stella Ambler Conservative Mississauga South, ON
Thank you.
When talking about the fines that are collected by the crown for breach of band by-laws, we have heard that the fines should go directly to the band, not to Her Majesty for the benefit of the band.
Can you comment on a possible amendment that would replace Her Majesty with the band, thereby allowing fees collected from by-laws to go directly to the band?
Professor of Law (retired), As an Individual
I think it would be ill-advised to try to do that in one bill that is aimed at some particular sections. I think it should be done by having a look at the entire structure and the relationship between the administrative authority of the minister, on the one hand, and the authority of the band on the other hand, in respect to its handling of its finances and receipt of revenues. It has to at least be looked at in light of the entire relationship in that regard, rather than in isolation.
Conservative
Professor of Law (retired), As an Individual
Well, there are a number of provisions—