[Witness speaks in Ojibwa]
My name is Derek Nepinak. I'm grand chief of the Assembly of Manitoba Chiefs.
As grand chief of the AMC, I act pursuant to legitimately established mandates of the member chiefs of 60 first nations in Manitoba. I am obligated to adhere to that direction now, as were former grand chiefs of the AMC.
I make this point because it's apparent to me that politicians have been asked to provide personal political opinions as former grand chiefs on the merits of the draft bill, or to add the appearance of legitimacy and process and consultation to the draft bill. For the purposes of accurate reflection, however, it's important to understand that I, Derek Nepinak, am the grand chief of the AMC today, and I'll provide you with an informed opinion unencumbered by personal political agendas.
While I represent the AMC, there are distinct treaty groups or aggregates of treaty communities that wanted to make their views known to this committee. I will say that these communities have a right to be consulted on the intentions of government to create policies or laws that impact or could potentially impact, their exercise of section 35 aboriginal or treaty rights, more specifically, aboriginal or treaty rights to self-government or the pursuit of self-determination.
Within the membership of the AMC, there are approximately 37 first nations communities that hold Indian Act elections, which I'll refer to as section 74 bands, while the remaining communities hold their elections pursuant to custom codes. As I'll explain a little bit later, however, this point is not material, because under the draft legislation the minister has granted a broad discretion under ambiguous terms to bring both custom code and section 74 bands into the purview of the proposed legislation.
It is apparent from our review of draft Bill C-9 that it does not reflect the purpose of the mandate supported and advanced by the Assembly of Manitoba Chiefs throughout the engagement period. As we have become accustomed to witnessing as indigenous people, the federal government of the day is demonstrating a lack of good faith by setting aside our recommendations and its own representations and substituting a unilaterally developed bill that includes unwanted provisions and omits key recommendations.
As the bill stands, it includes essentially only one of our recommendations and fails to incorporate all others. The magnitude of variation between the Manitoba recommendations and the draft bill is such that it continues a breach of the trust that the first nations invested in the process and further undermines an already tenuous first nations and federal relationship.
More troubling to us is the federal government's repeated attempts to hold out the proposed legislation as something the AMC agreed to. This is simply false and misleading to the public. In 2010, the AMC chiefs in assembly supported specific limited recommendations with respect to election reform.
During the 2010 assembly, the chiefs reviewed presentations made by INAC officials at the time and passed a resolution supporting a four-year term, a common election date, and a local dispute resolution process. The discussions among the chiefs also included the development of a common first nations election code, developed by the first nations themselves, which could be adopted by each first nation that so chooses. The code in this context is not synonymous with federal legislation.
The resolution also contemplated referenda in each first nation, not federal imposition. This is critically important, because it is by way of referenda that community members have the opportunity to exercise a right of free, prior, and informed consent to the process. The option selected by the chiefs is the only option supported by the Manitoba chiefs, and only as described in our resolution form.
Beyond the omissions and the selective set-aside of recommendations in the draft bill, there exists a fundamental problem with revision, manipulation, or amendment to Indian Act terms or regulations. The fundamental problem lies in the continued denial of the existence of inherent rights of self-determination and self-governance of indigenous people. The premise that the Indian Act or any other legislation developed by federal governments presents the only solution is an affront to the original jurisdiction of first nations people and is an implicit denial of the treaty-based relationship.
In asserting this truth, I propose that indigenous first nations communities do not need, nor are they required to accept, federal legislative initiatives to effect improvement to election systems under the Indian Act if they so choose. Rather, if communities want to run a common election day with other communities, or extend their terms from two to four years, or develop local election appeal mechanisms, they can do so of their own accord, at their own pace, and within their own defined limits.
For the Government of Canada to create, amend, impose, and implement any law pursuant to section 91, class 24, that attempts to manage the relationship between Indians is beyond the scope of section 91 and is not only paternalistic, but it's a perpetuation of the unique brand of colonialism that Canada has now become too well known for.
For many first nations people, elections are equated with Indian Act governance systems. Many band governments continue to operate on the basis of the authority granted in the Indian Act because practical management administration and band moneys are tied to the Indian Act elected chief and council. Customary governance. in contrast, recognizes traditional social organization and means of selecting leaders and provides for broad community input for decision-making.
It is a fallacy to conclude that first nations communities face an either/or proposition on matters of contemporary community governance. In Manitoba there are 37 first nations who hold their elections under the Indian Act while 26 hold their elections pursuant to their own custom election code outside the Indian Act. This is, however, not the plenary of options to communities who invoke self-determining initiatives to effect self-government according to their own terms.
AMC did pass resolutions starting in 2009 specific to this exercise. AMC specifically stated in one of its resolutions that notwithstanding other Canadian jurisdictions, we develop a common election code that respects the authority and jurisprudence of each first nation and ensures our inherent right to self-government and to work in partnership with first nations communities to prepare referenda options for a province-wide referendum with potential timelines to be brought to the next chiefs in assembly in September 2009 for deliberation and decision.
Again, in 2010 we came together and AMC, through resolution, said to request the Minister of INAC fund and take the necessary steps to remove the electoral provisions of the Indian Act that apply to the election of chiefs and implement a new legislative election system affording four-year terms, a common election day and include flexibilities that can be adapted to community needs.
Bill C-9 does not reflect the discussions and the decisions made by the first nations leadership in Manitoba as it purports to grant authority to the minister to subjugate a first nation to the act without the consent of the people. We believe this to be ultra vires with respect to the minister, beyond the powers of the government to legislate. We find that in clause 3(b) of the draft legislation. This discretionary authority defeats the objective of the AMC recommendation that first nations retain their right to opt in. The clause would allow the minister to subjugate those bands that have previously opted out of the Indian Act to custom election procedures. This clause would allow the minister to subjugate bands to the Indian Act who have never been subject to the act, in violation of their inherent and constitutionally protected rights under section 35.
“Protracted leadership dispute” is not a defined term and leaves broad discretion to the minister. The AMC did not make such a recommendation.
The draft bill also purports to grant the authority to the Governor in Council to set aside an election on a report of the minister that there was a corrupt election practice in connection with that election. We believe this also to be ultra vires with respect to the minister. The AMC did not make such a recommendation. This preserves a broad discretion for the minister to determine that there were corrupt practice methods and criteria not outlined under the proposed legislation.
This is a key point. I will reference a recent case that happened in the Federal Court, Woodhouse v. the Attorney General of Canada, Bernard Valcourt representing the ministry of aboriginal affairs. The Federal Court judge found that Minister Valcourt did not establish guilt in terms of a corrupt election practice and his decision was set aside.
Although it's purported that the minister may hold the discretion to set aside an election, that is not clearly defined in law. For the minister to exercise that type of discretion requires certainly a step-by-by step process that he is clearly trying to clean his hands of by delegating or removing himself from the election appeal process, which is another thing that we did not agree to or recommend as the assembly.
The legislation purports to grant the authority to the Governor in Council to set aside an election on a report of the minister that there were corrupt practices in connection with that election. I make this comment as well in contrast to established Canadian law in the Norway House Cree Nation case, Balfour I believe is the case name, where a community finding of a corrupt election practice in the Norway House Cree Nation was upheld at the Federal Court.
On the one hand, we have the minister setting aside a decision on a corrupt election practice and losing in Federal Court, and on the other hand, we have a community code defining what a corrupt election practice is and having that upheld in the Federal Court. The idea that the minister can purport to have the best interests of communities in mind in exercising a discretion that he has, that he retains under the act, to me is a fallacy because we have already proven in the Canadian courts of law that the minister may not have the mechanisms in place to effect the decision according to Canadian law. We believe that was proven in October 2013 in the Woodhouse case in Manitoba.
Another challenge with the draft law is it does not provide Manitoba first nations with the policy of adopting a common election day and an extended term of office. The bill has a quasi common election day that does not mirror the recommendation of the AMC. It also restricts appeal processes to external courts, and this denies access. Referring appeal processes in elections to Canadian court systems denies access to those people who cannot afford to bring an application into a Canadian courtroom under Canadian jurisdiction. That is a truth. Statistics are out there that people who are forced to go to Canadian court systems are denied access on the basis of financial resources.
The bill also does not provide for the creation of a Manitoba chief electoral officer or provide for the appointment of electoral officers by band councils without requiring the minister's approval. If this bill is purported to create self-government or enhance self-determination, why are so many checks and balances in place that need to be vetted through a minister? That seems to be the opposite of what we're trying to achieve.
In conclusion, Bill C-9 is easily characterized as an extension of limited delegated authorities under a paternalistic Indian Act. It is apparent that notions of self-determination and self-government are viewed by the drafters of the legislation as powers that are given or granted to first nations by the federal government.
Manitoba first nations view self-determination and self-government as inherent rights and selection of leadership as fundamental to self-government, included in the suite of self-government rights.
Our right of self-government is self-evident; moreover, it is entrenched in section 35 of the Constitution. Notwithstanding, the federal government continues to propose legislation that is designed over the long term to terminate the existence of status Indians while confining first nations governments within narrowly construed delegated authorities and powers at the discretion of the minister.
Imposing legislation on first nations people pursuant to the Indian Act in this manner perpetuates the federal government's unilateral interpretation of first nations self-government. This approach is inconsistent with our inherent rights, international law, and declarations endorsed by Canada.
The proposed legislation is simply an addition to the Indian Act, citing the same authority and the same definitions granting broad additional powers and discretion to the minister and his office. The legislation mingles only one recommended change from the AMC and the illusion of another. The resulting product is another piece of federal government-owned legislation that perpetuates Canada's self-proclaimed authority over indigenous people.
We live in an age when we should be beyond this type of thinking, ladies and gentlemen.
Thank you.
