Indigenous and Northern Affairs Committee on May 2nd, 2013

[Ray Boughen, Conservative, Palliser, SK]

I'm interested in your experience in removing your community from the Indian Act. Could you outline for us what led you to follow that course of action?

[Chief Robert Louie]

Yes. To summarize it as clearly as I can, it goes back quite a number of years, to the process of the lands, reserves, and trusts review of the Indian Act, and the opportunity that led the government of the day to listen to us, as community chiefs, as first nations chiefs, to say what needed to be changed. When we did that, when we consulted with one another and seriously considered it, we noted that it could not happen with amendments to the Indian Act.

What has to happen, in our view, particularly if you're dealing with lands and resources.... It has to be the first nation. The first nation must be empowered with self-governance. The Indian Act doesn't do that. The Indian Act is a process, one of delegated authority. That is what's wrong with the existing Indian Act.

For many first nations, it will take time to develop that capacity. For us, involved in the land management process and in land codes being developed, it was that complete support, unanimous support, that let us know changes had to be made to the Indian Act. It was knowing that we collectively felt we had to have the self-governing inherent rights recognized for us as communities, as leaders of the communities, and as first nations collectively.

That is the process I think that has to work. Making amendments, or changes, to legislation like the Indian Act in itself I don't think is the way to go. It has to reflect full self-governance, and there are all kinds of studies all over North America that back up this statement.

[The Chair, Conservative, Chris Warkentin]

We'll turn to Ms. Bennett, for the next seven minutes.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Thank you very much.

Welcome.

I have to begin by apologizing that somehow your testimony is immediately before the hour of clause-by-clause. It's not the way Parliament is supposed to work. We should always have time, I think, to deliberate on wise testimony before we move into the process of deciding.

I also feel that what you've advised us, in terms of listening to the regional chief and explaining the proper way to go forward, makes the bill unacceptable, because it really is a job for first nations to lead the process to replace the Indian Act, with true consultation with all your people. You could then propose legislation that the government could then accept or negotiate, but it should come from first nations.

In the regional chief's testimony she advised that although well intentioned, the government's persistence in this is going to cause problems and have unintended consequences. This bill, because of the lack of consultation, is deeply flawed, and in terms of process it is unacceptable.

We have talked about whether private members legislation should actually have to meet a test of duty to consult or free, prior, and informed consent before it can be tabled, in the same way that we can't table things that cost money under private members legislation. Maybe we need a different test here in Parliament as to what is acceptable, or not acceptable, as private members business.

In the regional chief's testimony, she suggested that seeing that it's quite clear the government is going to pass this bill—they have the arithmetic to put it through—clauses 2, 3, 4, 5, 7, 10, and 13 should all be deleted, or that we should vote down those clauses.

I'm not sure what the government is going to do. They've obviously heard that the wills and estates part is really a mess. We'll see what the government does.

Could you explain the issue of special reserves, and how the ability to create special reserves would be removed, that the provision...? They say these are provisions only of historical importance, but it seems to be an area that has not been well thought through.

Can you explain a little bit more to us about why the regional chief suggested that clause should be removed?

[Chief Robert Louie]

I'd like to do that, and then ask some of my colleagues to also offer their comments.

[Carolyn Bennett, Liberal, St. Paul's, ON]

I might have this incorrect. I'm looking at all the various numbers all over the place, but I now don't have clause 6 in her list to be removed. I know she had concerns.

But could you explain what could happen with this part of the bill?

[Chief Robert Louie]

If we're talking specifically about the special reserves under section 36 of the Indian Act, I know there are complications with that. There are historic issues that relate to how special reserves have been set up. We know there are court decisions, particularly out of British Columbia, that say a special reserve cannot be created without the consent of the crown. We know there are certain advantages of special reserves. I think the concern we have is that if Bill C-428 were to kill that option, there could be some unintended consequences.

I know that Mr. Henderson is certainly very familiar with the Indian Act and the special reserves, and he could perhaps offer some more enlightening comments.

[Bill Henderson, Legal Advisor to Lands Board, Interim Lands Advisory Board]

I don't know that I can add much to what Chief Louie has said, at least not as succinctly.

The special reserves go back to the earliest federal legislation, transferring lands that had been vested in commissioners, in Quebec, and in the maritime provinces. There were institutions like the Anti-Slavery and Aborigines' Protection Society and church institutions like the New England Company that held lands on behalf of Indians.

Over the years, most, if not all, have been converted to a federal title that would conform to the Indian Act. I don't guarantee that all of them have, and I don't guarantee that all of the conversions were smooth. Oka, a principal example, went to the Privy Council in 1912.

In any event, as Chief Louie said, because of the way clause 6 is worded in the bill, we would put in a new section, 36.1. That would continue the application of the Indian Act to special reserves as they exist prior to passage of this, but not after.

As Chief Louise described, the B.C. courts say that you can't have a special reserve, or create one, without the consent of the crown. The implication is that you can create a special reserve if the crown consents, or if perhaps two crowns consent, which may be an option, for economic development or other purposes. That is real, and it's in the act today. This has never been followed up, never been pursued. Still, it's worthy of consideration, worthy of study. Without that study, why kill it?

I think that's the analysis we've done.

[The Chair, Conservative, Chris Warkentin]

Thank you, very much.

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

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you, Mr. Chair, and my thanks to the witnesses for coming in.

It's been a long haul to come this far, especially getting in at 10 p.m.

When I started this journey to look at the Indian Act...being first nations, and being born under the Indian Act, I think I can speak with first-hand knowledge. I always hear the opposition being critical, but they have never lived under the Indian Act. It's people like me, who were born under the Indian Act, who can speak with some clarity of the differences the Indian Act draws between the non-aboriginal and the aboriginal.

Chief Louie, I look at the Indian Act, and one of the things that currently isn't in it is a process that will compel the government to review the Indian Act on a yearly basis. There's nothing there.

I feel, as a first nations individual, that what the Indian Act really does is maintain the status quo. That's how I feel about the Indian Act: it promotes the status quo. There are countless studies out there, but we always come back to the same thing, the status quo.

With your first nations, Chief Louie, you led the charge. I remember years ago going to Westbank. I remember the trailers. Playing on the reserve as a child, where there was nothing, I remember seeing a person's vision to take that forward.

We hear all the opposition. Some have provided amendments, some haven't, but we're maintaining the status quo. I'm hoping to see amendments to my private member's bill that will improve the lives of first nations overall, through trade and self-governance. A lot of first nations communities don't have the capacity to look at their bylaws or to get ministerial approval. When you were last at the committee, and when we visited your community last year, you spoke about how the chiefs and council have a responsibility to answer to their band members, and you said this is something the Indian Act doesn't specifically provide for.

This bill has certain provisions, like the bylaw section, that are meant to empower grassroots members and to promote transparency. One of these provisions requires bands to publish their bylaws and make them accessible to band members. The intention of the section was to ensure that those affected by bylaws are aware of, and have access to, those bylaws.

It has been raised that requiring the band to provide a copy of the bylaw only to members of the band could be problematic, as bylaws affect all those living in the community, and your community has many non-band members living in it.

What is your thought on a possible amendment requiring a bylaw to be given to any person who requires one, as opposed to only members of the band?

[Chief Robert Louie]

That's a good question, Mr. Clarke.

We certainly publicize our laws appropriately. We don't use bylaws because we're a lawmaker. Consequently, as a lawmaker, we're not a subsidiary to another process. Our laws are published. Today you can pull up a list of all our laws on the Internet. They are certainly publicized to our members and are made available under due process through first, second, and third readings, a whole process that has the involvement of not only the community but an understanding by those who will be affected that the law is empowered.

The problem that I see with the proposal you seek in this Bill C-428 is that it could become far too cumbersome to take, let's say, a 30-page or a 40-page law—in some cases they're longer—and put it into a newspaper, to say this has to be publicized. We don't believe that would be prudent. There are other ways to do that.

For us, and for all the first nations who have land codes in place, proper publication does take place, and it's something that we see as necessary. So there are means to do that, we believe.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

We see how other governments in Canada and first nations are treated differently with regard to bylaws. Do you believe the government should have the power to void a bylaw or to rule it null and void, and should the first nations have to wait a year and a half, two years, three years, or even more, for a bylaw to be passed?

[Chief Robert Louie]

I agree with you in that sense. I understand. I believe what you're suggesting in that case, where the minister has the authority or the power to disallow those bylaws, is the Indian Act process. Again, that's separate from what I'm trying to suggest to you with regard to law-making and that sort of thing.

But in that instance, I would agree with you. I would also agree with you for things like “...people acting in a fiduciary capacity cannot trade for profit with Indians” unless approved. Those things are archaic, there's no question, and I think there are situations that perhaps need to be changed. So I would agree with you in that instance.

I didn't go clause by clause in somewhat of an orderly or normal process. I think that's been done by our regional chief, Jody Wilson-Raybould. I didn't want to repeat any of the statements she made, because we agree with them.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Do you think there should be a process right now in the Indian Act that would compel the government to review the Indian Act on a yearly basis, in consultation and collaboration with first nations?

[Chief Robert Louie]

That's assuming there isn't an alternative process that will put first nations in a self-governing state. I think that's really the essence and the focus. If resources are going to occur, I think they'd be more appropriately spent to do that: to empower the first nations with self-governance powers. The problem we see with the Indian Act is that it doesn't empower first nations. First nations are subsidiaries to that, and they have to follow what's set by government. That's the wrong course. The first nations should be recognized as the governments. I think that's where the appropriate focus should be. That's all I can suggest to you. Things like the first nations land management process have been effective because we have been empowered and recognized as the governments. That's where I believe government should focus its attention. I think that's money much better spent.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

We'll turn now to Mr. Genest-Jourdain for five minutes.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Good morning, Chief Louie.

You pointed out that one of the clear weaknesses of the bill we are studying is that it means additional requirements for First Nations, but that it does not seem to come with additional funding with which to implement the regulations. We have seen this same situation before with the First Nations Land Management Act. That did not come with a budget for site management and environmental assessment either.

Could you please shed some more light on that issue for us?

[Chief Robert Louie]

Perhaps I can answer it in this sense. I believe that appropriate governments, like first nations that have land codes in place, have to be accountable, have to be respectful of the communities they serve, and have to reflect good governance. That requires the creation of good laws. It requires publication of those laws to notify all who may be concerned that this is in fact the law that is applicable.

I think it takes those types of things to ensure that good governance occurs, and it must be supported by dollars. There is a cost to govern, and that cost of governing must be supported by the resources. Money is one part of it. I think assistance, through a resource such as the Lands Advisory Board resource centre, is supportive. Having training and programs available to support that certainly leads to good governance.

Perhaps my colleagues could answer that question further.

[Bill Henderson]

I'll try to contribute, because you did also ask about the environmental management under the Framework Agreement and the First Nations Land Management Act. I think that's a good example of the option not being entirely successful, because the history of environmental management under the framework agreement in the initial version of the First Nations Land Management Act had some hurdles to reach some agreements and to get some funding, and it wasn't just as in straight land laws and uncomplicated process. There was no disallowance, but there were contraventions and interventions along the way.

That process just didn't work. It didn't lead to environmental management, so in the latest round of amendments of the First Nations Land Management Act it was taken out. The first nations can pass laws for environmental management and they can establish environmental assessment. Those laws cannot be disallowed, and they don't require prior approval from anyone.

As Chief Louie has indicated, of course, there is always the perennial problem of funding enforcement and supporting those regimes once you've made the laws.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Thank you, gentlemen.

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

Just really quickly, Chief Louie, it's been suggested that this bill will allow for a process for dismantling the Indian Act, but that's not actually what it says. It says that “...continuing its work in exploring creative options for the development of this new legislation...”, and what is required is a report to Parliament on an annual basis, but in fact the report to Parliament could be that nothing has happened.

Part of the criticism around this is that it doesn't set out a process for the consultation with first nations. That's been a concern expressed.

Would you be more supportive if there were an actual process laid out to get to that place of consultation?

[Chief Robert Louie]

I would, and I understand what Mr. Clarke has formally suggested and why the question was put in that context.

I don't support the consequential amendments of the Indian Act, in general terms, because I simply don't agree with that governance component of it. It doesn't provide that governance component.

Notwithstanding that, the Indian Act still exists and is still applicable to the majority of first nations today. So I believe, and I agree with you, that a true consultative process to say what can happen...and if there is something that is needed to be changed, it should be an option provided to the first nations.

I think those types of suggestions would be very helpful and would certainly move first nations along at a much quicker pace, and I think it would be conducive to all kinds of things, like economic development and benefits for all Canadians, if that were in fact done.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

We'll turn now to Mr. Rathgeber for the next five minutes.

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

Thank you, Mr. Chair.

Thank you to all the witnesses for your appearance here this morning.

Chief Louie, I was listening carefully to your opening comments and to the answers to the questions from my colleagues. I have a question regarding the amendment to proposed section 86.1 of the Indian Act, the publication provision.

I think you and other witnesses have expressed concern that the requirements are too onerous that a bylaw be published:

on the Internet site of the band, in the First Nations Gazette and in a newspaper that has general circulation

Would you support an amendment to this legislation that changes the word “and”, which is mandatory, to “or”, which would allow publication in one of those three to be sufficient? Would that be more acceptable, in your view?

[Chief Robert Louie]

I think it would certainly be more acceptable. If you have lengthy laws, it should be the Internet, for certain, and not newspaper publication. That would be only one example. If that were the “or” that would be used, I would certainly agree with it.