Indigenous and Northern Affairs Committee on Nov. 19th, 2013

[Kyle Seeback, Conservative, Brampton West, ON]

Are you suggesting that the people who previously came to the committee didn't understand the legislation when they said they supported it?

[Grand Chief Derek Nepinak]

I'm suggesting that I can bring perspectives on the implications of the legislation that perhaps are not going to be shared by others who may not be able to put the resources behind the review that I can.

[Kyle Seeback, Conservative, Brampton West, ON]

My colleague, Mr. Strahl, said that according to his information, only three times in history under the Indian Act section has that power of the minister been exercised.

This is similarly worded discretion. You used the term “broad discretion”. I don't think it's broad discretion if it has only happened three times. We have members of first nations communities supporting the legislation.

In the context that it has only been used three times, does it not make sense to proceed with the legislation and let people who want to opt in and who have come to the committee and said they want to opt in be able to do so? Does that not make sense?

[Grand Chief Craig Makinaw]

Well, I guess, based on the region or the area, that would be up to their discretion. I can't speak for them. They have different decision-making powers, so I can't comment on that.

I'll just leave it at that. I won't say too much more, because a lot of it has being discussed.

My other concern is with the minister acting at his discretion. That is far too general, too open. He could come in and, from reading the act as written, enforce those rules on us without our even having our opinion. That's one of the concerns we would have. That's where the minister has way too much power over us.

[Kyle Seeback, Conservative, Brampton West, ON]

It has only been exercised three times under the Indian Act. Sometimes I use the expression ”don't let the perfect be the enemy of the good”. To me, this is something that may do a lot of good but might not be perfect.

I compare it to some extent to the First Nations Land Management Act. It was opt-in legislation, not generally supported when it first took place, but now we have an enormous number of first nations who want to opt in.

This seems to have a lot of good in it, and there may be some flaws, such as all legislation might have, but does it not make sense to let it go through, let those who want to opt in do so, while the ones who don't want to don't? I don't think this is going to be an area in which the minister is exercising discretion frequently, based on the past practice of three times ever.

[Grand Chief Derek Nepinak]

I've heard an assertion that the minister has exercised past practice to take a community out of custom code and put them in an Indian Act election on three occasions since 1876. I would recommend to anybody hearing this that they get specific reference points to those three occurrences, because I do still maintain that the minister does hold the broad discretion.

I also question whether it makes sense that a duly vetted, legitimate custom code that has received the consent of the people be subjected to an opt-in band council resolution from the chief and council of the day to accept the new legislation. Does that make sense? I don't think it does.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Seeback. Your time is up.

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

[Dennis Bevington, NDP, Western Arctic, NT]

Thanks, Mr. Chair.

Thank you, Grand Chief. I appreciate your testimony today. It certainly in some ways changes some of the things that were brought forward at the last meeting by the minister. Certainly to my mind it calls into question the procedure that's been followed here.

Did your election occur prior to the draft legislation being put in front of the Assembly of Manitoba Chiefs?

[Grand Chief Derek Nepinak]

Yes.

[Dennis Bevington, NDP, Western Arctic, NT]

In other words, the prior grand chief didn't see the legislation in his role as grand chief.

[Grand Chief Derek Nepinak]

That's correct.

[Dennis Bevington, NDP, Western Arctic, NT]

Okay. I just wanted to make sure we understood that this was the process that occurred here.

In your capacity as grand chief, having seen the proposed legislation, you're more likely to have actually determined whether that's appropriate with your board, with all the membership of your first nations.

[Grand Chief Derek Nepinak]

Yes. I would agree that having been duly elected in an election at the Assembly of Manitoba Chiefs, and having the ability to review the draft legislation, I do have a perspective to share.

[Dennis Bevington, NDP, Western Arctic, NT]

Okay.

This whole issue of the minister having the ability, under some method of disturbed leadership, of disenfranchising elected members is an issue that I'm struggling with right now. In some ways, it's contrary to what....

Allegations do not prove the case. The principle, I think, is that the people who elect someone should have a choice about that person and should actually have to live with that choice, to some extent. That's how we grow up in a democracy. The choices we make are the ones we have to live with. They're not choices that are simply determined after the election. People have a responsibility to make a decision before an election about the character and about the likelihood of the leadership achieving their goals.

Is that similar in first nations? Do you think that principle follows in first nations?

[Grand Chief Craig Makinaw]

Yes, it does.

[Dennis Bevington, NDP, Western Arctic, NT]

So what we have here is a very tenuous opportunity.... I'm not saying this government or any other government would abuse it, but it could well be abused, because what we're talking about is no definition of a requirement for the disenfranchisement of an aboriginal leadership; it's simply the choice of the minister.

Is that the way you read this as well?

[Grand Chief Derek Nepinak]

Yes, I would agree with that.

I think that observation ties into Ms. Crowder's question about why there are different standards in place for duly elected indigenous representatives of their community versus allegations that may stand against an MP or a senator.

[Dennis Bevington, NDP, Western Arctic, NT]

We could go on with this one, but I want to go back to what you said earlier, that we need a new Indian Act.

What would be a correct process to draft a new Indian Act? What process would actually respect the history, the ownership of first nations, the rights of first nations? How would that work?

Speaking for perhaps the next government that may have a different attitude about this, how would you see it?

[Grand Chief Derek Nepinak]

I think that's a very broad question.

I would suggest that when we went to the crown-first nations gathering in January 2012 the Assembly of Manitoba Chiefs brought forward a perspective that would, I believe, have provided a constitutionally legitimate avenue to engage in some of the very difficult discussions around the existence of legislation that denies self-determination and self-government towards moving towards recognition of what section 35 really means, towards empowering those indigenous people across Canada that want to create certainty for their existence within the Canadian Constitution. It was dismissed as blue-sky thinking by the Prime Minister and by others.

I do believe that attachment to your resource base is critical to be able to experience organic processes, to renew indigenous institutions of government, indigenous institutions of education, social programming, and health. As long as the vast wealth of our resources is being extracted from our ancestral lands right out from underneath us while we remain confined in our reserves or go through the transition to the urban environments that we're living in now, we're not going to be able to build that or rebuild it. It's going to require a constitutionally based discussion that's going to involve the government of the day as well as the provincial jurisdictions that purport to have jurisdiction over our natural resources.

That's the starting point. I'm sorry for being overly blunt.

[The Chair, Conservative, Chris Warkentin]

We appreciate that.

Mr. Boughen, we'll turn to you now for the next five minutes.

[Ray Boughen, Conservative, Palliser, SK]

Thank you, Chair.

Let me add my voice of welcome to the two grand chiefs sharing part of the day with us. We appreciate your involvement here, gentlemen.

Going back to the presentation, I got kind of a mixed message. I need some help in understanding what we're looking at in terms of....

Grand Chief, you said there was a first draft in 2011. You saw a draft of this bill. It was either typed or by fax. It got into your office?

[Grand Chief Derek Nepinak]

Yes.

[Ray Boughen, Conservative, Palliser, SK]

At that time did the chief and council have a chance to look at that document and say, “We like this. We don't like that. We're kind of lukewarm to this part. Here's our input. We'll send it back to whence it came and see that those ideas that we had are introduced in that bill.”

Did that happen or not?

[Grand Chief Derek Nepinak]

I cannot speak to the process at the community level in terms of how much they engaged in the draft legislation. I can say that at the offices of the AMC we did receive it; we did review the legislation, and observations were made and shared with the executive council of AMC chiefs.

[Ray Boughen, Conservative, Palliser, SK]

So there was a chance for some input on the bill. It wasn't entirely just dumped on you to live with it or do another thing.