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

[The Chair, Conservative, Chris Warkentin]

Thank you.

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

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

Thank you very much.

Thank you, Chiefs, for your presentation.

Obviously there is a wide variance of opinion in Manitoba even, and across the country. We've heard from chiefs, elected by their members, who are very much in favour of this. It's good to get all different perspectives on it.

My question is for both of you. In your own home first nations, are you under a custom code or the Indian Act?

[Grand Chief Derek Nepinak]

I'm from the Minegozhiibe Anishinaabeg and we do Indian Act elections under section 74.

[Grand Chief Craig Makinaw]

We're under custom.

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

Under this proposed legislation, of course, one of the things we have talked about is the opt-in option for first nations. There is no imposition of it from the outset. Certainly in both of your cases, custom election would continue. The Indian Act election for Chief Nepinak would continue as well.

The main concern that we've heard, even from others, is that there is the ability to be opted in. That is a major concern.

I understand that has been done only three times, where a first nation has been taken out of custom code and placed back into the Indian Act. So it certainly isn't something the minister does willy-nilly, to use a term that probably isn't in Hansard a lot.

Because this is opt in and because the discretion is hardly ever used, do you not see there is an advantage for first nations that want this? Why would you be opposed to letting first nations that want to opt in to this new legislation to do so?

[Grand Chief Derek Nepinak]

I think it's appropriate to recognize that, as the grand chief of the Assembly of Manitoba Chiefs, I work under a mandate of the chiefs and the constitution of the AMC to uphold and protect aboriginal inherent treaty rights.

Ultimately, the decision is vested with the community to decide what type of system they would like to participate in, under the Indian Act, under custom code, or under some other manifestation that they so choose.

The challenge we see with the bill is that the opt-in provision does not require consultation with the community members. It requires the resolution by the chief and council to move forward. Resolution moved by chief and council does not imply that the community has been consulted. Certainly, in this exercise of moving to the draft bill as it is now, as I mentioned before, a very key piece of consultation is missing. That consultation, I think, goes to a point of required free, prior, and informed consent of community members.

I'm not here to deny the existence of the opportunity for indigenous people across Canada to opt in to the paternalistic bill. That's entirely up to them. What I'm here to say is that there are key pieces in the process that are missing and people should not be denied those processes.

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

As Jean has pointed out, and we've certainly seen the circus in Toronto recently, we know there are cases in municipalities where there are governance issues. There are also cases in first nations where there are questionable practices, where there are prolonged leadership disputes, to use the language of the legislation.

If there is not the ability of the minister to step in, in the interest of the grassroots first nation members on reserve who may not be getting the services they need and who may be the ones who suffer when there are governance issues, what alternate mechanism...? For instance, we've seen cases where there are two chiefs and councils who claim to be the elected group in a single first nation. What should be the response, then, of the minister or of that first nation if there is no mechanism in place to address that issue through legislation? In your view, what do you think should be done, if not this?

[Grand Chief Craig Makinaw]

Speaking for my own reserve of Ermineskin, we have an election appeals board. We have a timeframe in between elections that deals with issues. When those issues do come up, it goes to the appeals board and that's where they are dealt with.

It has been working for us the last few elections and we haven't had any problems with it. That's the process we take, as Ermineskin. I think that other bands do the same process. They have their own—

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

They have their own custom.

[Grand Chief Craig Makinaw]

That's true. They have their own appeal board sitting there dealing with the issue.

Speaking for Ermineskin, that's how we do ours, when it comes to the appeals.

[Grand Chief Derek Nepinak]

Certainly, I would also share a similar thinking along the lines of the grand chief in that appeal mechanisms can be developed under customary codes. The resources would need to be allocated to that type of initiative.

I know there are concerns about the costs associated with setting up appeal mechanisms or tribunals, but the cost would need to be compared with the hundreds of millions of dollars that have been spent by this government in taking indigenous issues to court.

Last week we saw a publication come out recognizing that Aboriginal Affairs is the first one to the courtroom when it comes to government positions.

When we argue about resources and establishing local appeals committees or tribunals, I believe this has to be weighed against what the current practice is.

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

Do you believe that an election conducted under section 74 of the Indian Act allows for that independent, local appeal mechanism, or is that only available through custom election codes?

[Grand Chief Derek Nepinak]

I think that, not to be too narrowly confined to what the Indian Act may purport to allow for, there are inherent rights and treaty rights to self-determining initiatives and self-government, which allow communities to move in any direction or manifestation of elections or governance that they chose.

[The Chair, Conservative, Chris Warkentin]

Thank you.

We'll turn now to Ms. Bennett.

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

Thank you very much.

I think at the beginning we thought this was a piece of legislation that was led by first nations and was supposed to be a no-brainer. This was something that the Atlantic Policy Congress, together with the AMC came forward with, and people thought we should just move forward.

My understanding is that in what was put forward and what was consulted on, paragraphs (b) and (c) of subclause 3(1) were not part of the original proposal from the AMC or the Atlantic Policy Congress.

I have to say that the phrase used by the parliamentary secretary, "ability to be opted in", is one of the finest pieces of political correctness that I have ever heard. I think this is fantastic as opposed to the minister's ability to force a first nation in under this kind of an election. The ability to be opted in is similar to "was quit".

The Atlantic Policy Congress was here two weeks ago, very much encouraging this committee to approve the bill even in its imperfection.

Jody Wilson-Raybould said before the Senate that if these clauses were removed, it would be simpler in that not as much consultation would be required because it would be a truly voluntary opt-in approach of a first nations-led initiative.

Unfortunately, with the bill as it's written now, that's not possible. Way more consultation would be required. We heard from the Atlantic Policy Congress that when they tried to do consultation, they heard very little back from Ontario and Quebec, even on the original proposal.

We just need advice. If the government was prepared to remove these parts that are upsetting everybody, do you feel that the bill would be characterized as totally optional? Would you be comfortable with the bill if the government removed those two parts?

[Grand Chief Derek Nepinak]

If the government were to remove the clauses respecting the broad discretion of the minister, there is still an onus on community governments, chiefs and councils, to take this to the community by way of a referendum. This would be necessary to meet the threshold of free, prior, and informed consent of the people who are most affected by the implications of continuing in an Indian Act structure.

With that said, I think it does become a little more palatable if you remove that broad discretion of the minister.

[Grand Chief Craig Makinaw]

I don't want to say too much more. I agree with what the grand chief is saying.

I guess the problem I have, having been here before and again today, is that when I talk about these bills and we bring in our concerns, the concerns aren't addressed. That's my main concern again today, that our concerns aren't addressed, but if they are, this will be a good start.

As the grand chief said, if those changes were made, we'd have to bring it back to our people anyway to discuss it further. There's not going to be an answer right away. It would be a work in progress, but the onus is on the government to do that. That's what I'd like to see and I hope to see that they take it into consideration.

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

Without the clauses being removed the bill is a non-starter for your chiefs.

[Grand Chief Derek Nepinak]

I believe without any amendments to the bill it would be a difficult proposition to expect that I as the grand chief of the AMC, working under my mandate and the constitution of the AMC, could support it. I simply couldn't.

[Grand Chief Craig Makinaw]

I, too, would have to agree that until I get that direction from my chiefs, it would be hard to decide on it.

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

In the consultation in terms of bottom-up communities being able to decide, are you describing what would happen if this bill was passed without those clauses, and that this would be the kind of consultation that would have to take place for our community to decide whether to participate or not? Do you think it even predates that and that even discussing any bill requires free, prior, and informed consent by all the communities?

[Grand Chief Derek Nepinak]

I think it's important to recognize that we're living in the age now where the Indian Act, and the provisions under section 6, are now starting to exclude individuals from falling under the Indian Act. We are seeing the extinguishment of the status Indian by way of legislation. I think that's a fundamental problem with moving forward with any type of amendment, or slight adjustment, to election provisions under that umbrella.

I think that we are approaching the point where any type of alteration to a piece of legislation that extinguishes the existence of the status Indian requires the free, prior, and informed consent of the people who are most impacted.

I think that we did start out right in this exercise. The Assembly of Manitoba Chiefs did start out right in approaching it from a bottom-up process. Community engagements cannot be argued with. They're unarguable. No one is going to argue with the opportunity to go to the community and talk to them about how best to proceed, but as we moved up the chain of process, we lost the ball. We lost the handle on this somewhere and then out came a piece of legislation that fundamentally alters the messaging that was carried to the communities. Now we end up with this draft bill. We're sitting here today and are expected to support a draft bill that alters what the community has asked for.

It's bottom up and now it has to come back down again, and it has to come back down to a point of free, prior, and informed consent of community people.

[The Chair, Conservative, Chris Warkentin]

Thank you, Grand Chief.

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

[Jim Hillyer, Conservative, Lethbridge, AB]

Thank you to the witnesses for coming today. I'm hoping to get some better understanding of this.

I'm happy to have some people who don't see this as a slam dunk because that's the only way I can learn. If we are just surrounded by yes-men, then we don't really learn that much.

I do have a couple of questions about some of the concerns that were brought up, and maybe you can help me figure them out.

One of the concerns is that under this change, even though it's not as much discretion as in the original Indian Act, the minister maintains more discretion than you would prefer. Sometimes when I talk to the minister, it sounds like it's more discretion than he would prefer too.

If there is a concern about a corrupt election or corrupt leadership and so on, for which the ministerial discretion is maintained so that there's something to appeal to, maybe I misheard, but it said the onus will fall on the leadership of these various first nations.

Wouldn't that be the leadership whose very legitimacy or corruption is being called into question by that leadership's people? If it falls to the leadership of a first nation to resolve a complaint of that first nation's people, how could we resolve that concern?

[Grand Chief Craig Makinaw]

Speaking for myself and Ermineskin, we have our constitution. We have our election code. We have our code of conduct that we follow at Ermineskin. When we have election disputes, we have a mechanism there that we follow.

That's how we deal with our issues when it comes to election concerns or concerns throughout the year. We have checks and balances that we follow based on our constitution and our council code of conduct and the election system that we have.