Indigenous and Northern Affairs Committee on May 2nd, 2013

[The Chair, Conservative, Chris Warkentin]

Colleagues, I call this meeting to order. This is the 71st meeting of the Standing Committee on Aboriginal Affairs and Northern Development. Today we continue our review of Bill C-428.

We have representation today from the First Nations Lands Advisory Board. It is a privilege to have five folks here from different regions.

We are privileged to have the chair of the board, a friend of mine and a friend to many in this room, Chief Louie. Thanks so much for being here.

Chief Bear, it's always wonderful to see you. Thank you for joining us as well.

We also have Ms. George-Wilson and Mr. McCue, and we have Mr. Henderson.

Thank you all for being here. We appreciate your willingness to come to Ottawa to join us in this review.

We'll turn it over to you for the first 10 minutes, and then we'll have some questions.

[Chief Robert Louie, Chief, Westbank First Nation, and Chairman, First Nations Lands Advisory Board]

As chairman of our Lands Advisory Board, I thank you, Mr. Chairman and honourable members of the committee, for providing me time to respond to Mr. Clarke's private member's bill, Bill C-428.

In preparation for today, I've had the opportunity to review the comments made by Mr. Rob Clarke on Tuesday, March 19, as well as comments from other groups appearing before you. Those groups include the Native Women's Association of Canada, the First Nations Financial Management Board, the BC of Assembly of First Nations, and the Canadian Bar Association.

I want to particularly commend to you the evidence of Regional Chief Jody Wilson-Raybould, who, in addition to her other duties and services to first nations, sits as director of the Lands Advisory Board. The distinction she draws between the provisions of Bill C-428 that repeal and amend archaic, dated, and even offensive provisions of the Indian Act on the one hand and the post-colonial amendments and additions on the other hand are very telling. You will recall that she has opposed what might be called the “modernizing provisions” of Bill C-428 because they would impose burdens on first nations and because they do not present options. In that, we join her.

As first nations identify their own priorities and governance strategies, they need options to pursue their individual goals and aspirations.

Everyone is not moving on the same issues at the same time, at the same speed, in the same way, or aiming for the same result. The Lands Advisory Board and the first nations who have become signatories to the Framework Agreement on First Nation Land Management have set their own course, and that course takes us outside the Indian Act and affords us the option of truly governing our reserve lands and resources. This has become an attractive option to many first nations, both those who have signed the framework agreement and many more who have signalled their desire to become signatories. Where we see real progress in governance in our case and similar progress on other fronts, we find options, not the heavy hand of Parliament prescribing one fix for all first nations.

Mr. Clarke, I have read your answers to the committee's questions. I certainly understand and appreciate what you are attempting to accomplish on behalf of aboriginal peoples.

I would like to quote a statement made by Mr. Clarke to the committee:

I truly believe there's a consensus to replace the act. The real questions are, how should that happen, and what will replace it?

For years, many first nations leaders as well as the Government of Canada have said the Indian Act must be replaced. Mr. Clarke, you have made an attempt to turn words into action. Along with my colleagues, I commend you for your initiative. However, I sincerely believe that your intent would be more successfully realized if your proposals presented options for first nations rather than having them imposed. I say this based on the success that the Framework Agreement on First Nation Land Management and the ratifying document, the First Nation Land Management Act, has achieved.

Currently, 72 first nations are signatories to the framework agreement; 39 first nations have already enacted their land codes; 30 first nations are in the active development stage, preparing the land codes to be put to a community vote; 68 other first nations are on a waiting list. Canada has already committed to adding 25 new signatories during the next two years. The Lands Advisory Board is very appreciative of this support from Canada. Make no mistake, we could not have achieved the success we have without that support in our process, including significant financial support to first nations.

One of the key factors to the success of this historic first nations-led initiative is the fact that the process to assume jurisdiction and control over reserve lands is optional. All of our first nations have pursued or are pursuing jurisdiction over reserve lands and resources because they choose to pursue it. They think it is right for them and their communities to make the ultimate decision on whether to ratify the framework agreement and enact a land code.

The framework initiative began in the early 1990s with a small group of nine first nations. We were frustrated with the restrictive and outdated land-related provisions of the Indian Act. The decision-maker was the minister, not the community and not the chief and council. This was true whether the issue was the allotment of a certificate of possession, the issue of a permit to access or use reserve lands, or recommending a designation for leasing to the Governor in Council. It was tedious, it was cumbersome, it was time-consuming, and it wasn't working for our communities.

Over a period of years, we developed a well thought out and acceptable approach to removing these obstacles put in our way by the Indian Act. We tirelessly pursued discussions with Canada, with the provinces, with MPs of all political parties, and with first nations organizations such as the Assembly of First Nations. We consulted with numerous first nations across the country. The important point here is consultation: listening to and getting acceptance from our first nations people. Our group now includes approximately one-fifth, or 20%, of all first nations in Canada as either signatories to the framework agreement or those waiting to become signatories.

Mr. Clarke has also stated that “The true intent of the Bill C-428 is to create and aid freedom and independence for first nations.” If that is indeed the intent, then create options, and make sure those options are real options in the sense that there are resources for independent first nations to be able, realistically, to select them.

Many witnesses have cited the example in Bill C-428 of the new process for enactment of bylaws that impose new burdens and responsibilities on first nations in terms of developing laws and publishing them. But it is not funded—not the development of bylaws, not the publication of bylaws, not the enforcement of bylaws, and not the legal defence of them if they are challenged.

There are optional alternatives to what Bill C-428 proposes. These alternatives exist now, are led by first nations, adhere to the requirement for consultation, are supported by Canada in partnership with first nations, and permit first nations to achieve what Mr. Clarke says he wants them to be able to do.

There is, as one alternative available, full self-government, which is what my community, the Westbank First Nation of British Columbia, opted to pursue and which we achieved. There is also in B.C. a second alternative, the treaty process, which is what the Tsawwassen First Nation of British Columbia has followed to a conclusion. I am happy to note that both my community and Tsawwassen had enacted land codes first. Elsewhere, we see framework agreements for education gaining a foothold in some regions. They are not universally popular, but they are optional.

On the economic front, there are several pieces of legislation that address first nations taxing powers, economic development, harmonizations of laws, and first nations borrowing for community purposes. First nations must choose to take up any of those options; they are not imposed. One significant alternative is a first nations land code under the framework agreement that provides for law-making procedures, publication of laws, conflict-of-interest guidelines, the sale of animals and crops, seizure of goods, and levy of fines, with the moneys going to the first nation.

Mr. Clarke has also stated to the committee, and I quote:

...I want to amend the bylaws, to empower first nations to form their own bylaws. ...I'm trying to repeal outdated sections of the Indian Act.

What I'm trying to do is provide a solution for first nations, and I'm asking what their solutions would be.

The framework agreement is a workable and successful option that accomplishes all of what Mr. Clarke is seeking to achieve, and it accomplishes this based on the timing and priorities of the communities themselves and on their own free choice.

Mr. Clarke is a champion of our peoples. If Mr. Clarke would like to champion a cause, may I suggest that he urge Canada to make the framework agreement available to the other four-fifths, or 80%, of first nations who have not yet been given the opportunity to become signatories to the framework agreement.

Mr. Chairman, honourable members, thank you for your kind attention.

I, along with my colleagues, am certainly prepared to answer any questions the committee may have.

[The Chair, Conservative, Chris Warkentin]

Thank you, Chief. We appreciate those opening statements and those comments.

I'll turn to Ms. Crowder now for the first seven minutes.

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

Thank you, Mr. Chair. Let me know when I'm halfway through my time because I'm going to share it with Mr. Bevington.

Thank you, Chief Louie.

I'll try to paraphrase this. What you're saying is that if we are interested in making significant changes to the Indian Act, a process similar to that done for the First Nations Land Management Act could be followed, in that there was significant consultation, it was driven by first nations, and it was optional. It was an opt-in process.

Is that correct?

[Chief Robert Louie]

That is correct.

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

We have heard from other witnesses that if we were to proceed with changes to the Indian Act—Wab Kinew came before us last week and said that what needed to happen was a commitment from government that the terms of reference for a process be developed with first nations, that adequate resources be allocated, and that timeframes be specified.

Would you agree with that?

[Chief Robert Louie]

I would, yes.

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

What we have before us is a piece of legislation driven...I think everybody would agree that Mr. Clarke had good intentions when he brought this legislation forward. We've all had conversations and experiences where we see the impact of the Indian Act on first nations. It's a colonialist piece of legislation. It was imposed on first nations way back when, and yet we're now in this place where, despite good intentions, this act is once again being imposed on first nations.

Would you agree with that?

[Chief Robert Louie]

Yes, I would.

I would add that some of those provisions, as Mr. Clarke has identified, are quite appropriately inappropriate in today's age. There's no question about that.

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

That's the challenge before us. We would agree that the sections on the residential schools need to be taken out. We would agree that some of those provisions around barter and trade need to be removed.

But it comes back down to the process and that this is being done without free, prior, and informed consent of first nations.

[Chief Robert Louie]

Yes, that's correct.

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

I want to touch on FNLMA for one moment. We've had conversations over the years, of course, and it's very good to see that 25 new signatories are being put in place over the next two years. That's good news.

But we have seen in past years where the government has not fully expended the money allocated for FNLMA. Do you anticipate that the funds allocated will be fully expended in the future?

[Chief Robert Louie]

There's a need for a lot more funding. There's no question about that. The funding is there, yes, it's committed, but it all has to be expended. In the past, we've had some issues in not having all of the expenditure dollars, simply because of delays.

We've had some amendments to the framework agreement and the legislation, which I believe have assisted the process and made it more timely to go through, to develop the land code. We've experienced all of that. Yes, of all of the dollars that are to be committed, there is a more than ample supply and demand to entertain proper expenditures. Those expenditures will provide significant returns to the first nations, to the community at large, to the general public, and to Canada generally.

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

Thank you, Chief Louie.

The rest of my time will go to Mr. Bevington.

[Dennis Bevington, NDP, Western Arctic, NT]

Thank you.

I agree that the positive thing about what we've done with this bill has been the discussion about the Indian Act. The hope for the future would be that the process—I don't think there's a situation that we can see in Canada where there wouldn't be some legislation in Parliament guiding the relationship between first nations and the Government of Canada.

Do you see a situation where there would be no legislation?

[Chief Robert Louie]

I don't know if I would agree with no legislation, but I would agree that any legislation that is developed, if it's going to be of significant benefit, should have the direct involvement of first nations. It must be something that first nations want and need. I'm sure there's a lot of room for that to occur.

[Dennis Bevington, NDP, Western Arctic, NT]

Do you think there would be a process in the future where first nations could come forward with the legislation that they would see as appropriate and then have the federal government negotiate with them on what that legislation should be?

In some ways, I think we're getting this backwards. First nations probably understand better than the Government of Canada what they need to make their lives complete. Here we are, trying to good-heartedly change legislation to fit with what first nations need, whereas there has to be some kind of upswelling of understanding from first nations as to what they want. Is that part of Idle No More? People are saying, “Look, we want to take charge of our lives.”

How do you see the process for the future?

[Chief Robert Louie]

What you suggest would be the ideal scenario. We would love to have the opportunity to develop proposed legislation, have it considered appropriately by government, and then hopefully have it passed as legislation. I think that would be the ideal situation.

Knowing that perhaps that may not be how reality will unfold, I can say that what has been successful in the past is something like the framework agreement. The principles and terms of the framework agreement were pre-negotiated and agreed to by the Government of Canada and by first nations.

That's still a unique process. It's still a process that is stand-alone. It's a process that has worked, and has worked extremely well, because those framework principles and guidelines have been incorporated into legislation, the First Nations Land Management Act.

It has been a joint agreement as to what should be in the legislation. I think that joint agreement has led to what I believe would be a very successful outcome. The outcome I think is reflected here today and by first nations who have implemented land codes.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

We'll turn to Mr. Boughen for the next seven minutes.

[Ray Boughen, Conservative, Palliser, SK]

Thank you, Mr. Chair, and thanks to the panel for taking time out of your busy day, I'm sure, to meet with us and discuss this matter before us.

The bill mandates that the Minister of Aboriginal Affairs is to work collectively with first nations to report on annual progress that talks about replacing and repealing the Indian Act with a set of laws that more respectfully outlines the relationship between the crown and first nations.

Do you agree that the Indian Act cannot be removed overnight?

[Chief Robert Louie]

Yes, I would agree. I think that's the reason why there have been very few changes since the first Indian Act was passed in the 1800s.

[Ray Boughen, Conservative, Palliser, SK]

Would you see the proposed mandate of the Minister of Aboriginal Affairs as an opportunity to develop a consultation process that may repeal and replace the act? The proposal is consultation between the minister and first nations. How do you see that coming together for changes that need to be made in the act?

[Chief Robert Louie]

I can give you the best example that has worked by eliminating certain sections of the act, I believe 35 sections in total. That I refer to is the first nations land management process, the framework agreement.

For first nations who have opted into that legislation, it has provided for the elimination of the archaic—what we refer to as outdated—and the modernization of really what has to happen. That was taking jurisdiction and control of decision-making for laws, for how we are to deal with reserve lands and resources, and putting it into our perspective as a self-governing process.

So that portion of the Indian Act has in fact changed, but it has taken time to implement. When one goes through that process, it's certainly of benefit to know that it can happen, and it should happen.

To have a holistic, complete change of the Indian Act in its entirety takes very careful consideration. There are still very supported provisions in the existing Indian Act that perhaps should not be tinkered with. I only suggest that to you because they're seen as benefits to first nations.

I think it has to involve true consultation and true support. To have legislation completely changed without that support, without that consultation and direct involvement, I think would be the wrong process.

[Ray Boughen, Conservative, Palliser, SK]

Chief Bear.

[Chief Austin Bear, Director, Prairie Region, First Nations Lands Advisory Board]

I think there are also other approaches that have to be considered. The Indian Act applies to first nations across the nation, all 634. But we already have agreements in place.

I'm going to speak particularly about the numbered treaties.

We have long-standing agreements with Canada—in fact, the crown. There are other treaties, pre-Confederation treaties, and there is new treaty-making, at least in British Columbia, if not in other areas.

We have to recognize, at least with the numbered treaties, that there are agreements. We have a treaty with the crown. Rather than amending the Indian Act, which will still apply to first nations all across the country, whether they are numbered treaty, non-treaty, or pre-Confederation.... What we have to examine here, particularly with the numbered treaties, is treaty implementation of those existing agreements.

We have agreements. In the numbered treaties, we don't need any further agreements. We have to implement those 11 treaty agreements. I think we have to look at different approaches, not one approach to once again satisfy all. The Indian Act has never done that; it will never do that. And we're trying to do the same thing again.