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

[Grand Chief Derek Nepinak]

If I may further comment as well, I believe there has to be a recognition and respect to the customs, traditions, and protocols of community leadership, not just in the manifestation of the Indian Act chief and council, but also in the customary leadership that's provided by elders and the wisdom-keepers in the community. Local appeals committees are struck under custom codes, as we mentioned earlier, with the recognition at the community level.

It's maybe not at this table, and maybe not at any other government table, but at the community level at least, there is legitimacy of process and legitimacy in the respect and the decision-making that goes to an elder or community member who is designated to sit at a local appeals tribunal or committee to make decisions that are binding.

Ultimately, at the end of the day, I think we have to recognize that the best people to make decisions over arguments and conflicts of decision-making at the community level is us. We need to take ownership of our own challenges in our communities. I believe that the local appeals process establishes that, notwithstanding that there may at times be the appearance of a conflict with existing or previous leadership.

[Jim Hillyer, Conservative, Lethbridge, AB]

Thank you.

I agree with you when you talk about each nation. Whether or not each nation's sovereignty is respected by the federal government, it's a sovereign nation anyway. It's a nation that existed before and treaties were made with these nations. When the treaties were first made the language was not set up as, “We'll call it a treaty, but we're really the boss and you're not separate sovereign people.” That's not the language of the treaty, but it's a little different from the way we treat other countries, like France, Tahiti, the Congo and Rwanda. Whether it was right or not, over the past several hundred years the Canadian government has taken a paternalistic approach, which has led to certain results and certain dependencies. Not only that, when I talk to most first nations people, my understanding is that they also love being Canadian and being part of this country. They don't seek to be treated separately like Rwanda. They also want to be part of this nation.

When we talk to Rwanda, and let's say we want to support Rwanda and Rwanda says they don't want our help, at the end of the day, we say that's Rwanda's choice. They're a sovereign nation and if they sink into poverty, despair, ruin, and chaos, we'll say that it's sad, but it's not our fault and it's not our problem. If we were to do that in Canada, say, to a first nation that didn't have leadership in place, and we said that we'd leave it to that individual band or tribe or nation to make all their decisions, and things fell apart and there was poverty, would we not be culpable in letting them do that?

[The Chair, Conservative, Chris Warkentin]

You only have time left for a short answer. It was quite a lengthy question.

[Jim Hillyer, Conservative, Lethbridge, AB]

Sorry.

[The Chair, Conservative, Chris Warkentin]

Either Grand Chief, do you care to respond?

[Grand Chief Derek Nepinak]

I find the context of the question to be a little difficult to understand in referring to indigenous people in the context of Rwanda or some other country in a different part of the world. Certainly a unique context results out of treaty. Many great leaders and people I've learned from have tried and pushed and dedicated their life's work to creating certainty for indigenous people in Canada's Constitution.

I have brought to the crown-first nations gathering the concept of a constitutional meeting on first nations issues not to make or propose amendments to the Constitution, but to help create understanding about where the boundaries between decision-making exist in a treaty context. Certainly, as indigenous people, we did not sign away our decision-making at the governance levels of our people. We did not include that in treaty and what was left silent in treaty remains vested in indigenous people.

At times it might be difficult to reconcile that with the good intentions of people who have become prosperous on the wealth of the resources of the ancestral lands of our people, but the truth is we still need to be recognized for who we are, the original people here. There are jurisdictions intact that need to be revitalized, that need to be renewed in a post-residential school era, because that's what we're in now.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

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

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

Good morning, gentlemen.

In 2009-10, when you first worked with the Department of Aboriginal Affairs and Northern Development in order to carry out community consultations, how did they present the process for making election regulations that would follow the bill's passage?

[Grand Chief Derek Nepinak]

When the community engagement sessions were initiated, there was no forewarning as to how the recommendations would be rolled up and presented in a solution format, whether by way of changes to regulations within the Manitoba region, or by way of a new law that would apply in Manitoba only. There was no contemplation that it would be rolled up and projected across the nation as a new legislated solution. I recall specifically sitting at the AMC having a discussion as to the implications of the exercise and what the government was going to do with the information once it received it.

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

In light of what you experienced in 2009-10 and the fact that your concerns and recommendations were given very little consideration, what measures do you think the department will take to ensure a high level of participation by the first nations when it comes to developing election regulations?

[Grand Chief Derek Nepinak]

I would suggest that we take a look at the bill. In my submission, I've included recommendations to invoke the recommendations of the AMC and nothing more.

The AMC also recommends that the provisions offending the right of first nations to govern themselves be stricken from the proposed legislation, which would include clause 3.

I also believe that, perhaps as an alternative, a national referendum should be held at the community level to engage community citizens on the appropriateness of the new law. I think that drawing a distinction between custom code communities and section 74 is inappropriate, because at the end of the day, the minister still retains the broad discretion to pull everybody in. I think it's important, on that premise, to include everybody in that national engagement. That would, I believe, establish and reach the threshold of a free, prior, and informed consent exercise for indigenous people.

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

Thank you.

As I understand it, between 2009 and 2010, you consulted 37 communities on your own initiative in order to produce recommendations.

How long did it take you to carry out that consultation process, to obtain consent and ascertain the position of Manitoba's 37 communities?

[Grand Chief Derek Nepinak]

It happened, I believe, within a fiscal year. I cannot speak to the exact timeframe as I was not the grand chief of the Assembly of Manitoba Chiefs at the time. It was prior to my election in August 2011.

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

Thank you.

I am going to share my time with my colleague, Ms. Crowder.

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

I have a quick question. We have a current member of Parliament sitting in the House of Commons who is under investigation for alleged misspending in an election, but that person is still sitting in the House of Commons.

Why do you think that first nations are being treated differently? I'm talking about alleged election misspending. We're talking about elections here.

[The Chair, Conservative, Chris Warkentin]

I think we may be getting off track here.

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

No, I'm absolutely not. There's a unilateral ability—

[The Chair, Conservative, Chris Warkentin]

Order, order.

I'm saying that we're getting off track with conversations that are happening across the table.

Let me be clear. Let's direct the question to the witnesses. If the witnesses desire to answer, we'll hear from them. Colleagues, if you direct your questions through the chair, that may diminish the responses that we're getting from one side of the table.

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

Thank you, Mr. Chair. My apologies.

Why do you think first nations are being treated differently in terms of the potential for first nations to be masters of their own destiny with respect to elections?

[Grand Chief Craig Makinaw]

Speaking for Ermineskin and Treaty 6, I'd say it's a good question. We follow our systems, our customs and bylaws. Corrupt election practices and all that is addressed in our codes. That's where the issues are dealt with, when they come to the table and we deal with them. I don't see a problem when there are concerns brought up, especially the alleged corrupt practices. Those are dealt with. We have people who deal with them.

The government's acting like Big Brother to us is a concern. We'd like to have and show more authority for ourselves, to have more decision-making power. Speaking generally on all of these bills in the last year or two, there is supposedly, on some of the bills, a two-year discretionary period during which you're supposed to exercise the right to put them in play. What we're seeing now is that the bill is put into force even before we have the two years to discuss things. That's another concern.

[The Chair, Conservative, Chris Warkentin]

Thank you.

I'll turn now to Mr. Seeback for the next five minutes.

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you, Mr. Chair.

I recognize and hear your criticism of the legislation with respect to the sections dealing with, as my colleague would call it, and I'm not going to use the exceptional phraseology, because I can't remember it, but a sort of mandatory—

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

It's the ability to be opted in.

[Kyle Seeback, Conservative, Brampton West, ON]

Yes, the ability to be opted in.

That's right. Thank you.

I know you don't like that aspect of the legislation, and I think “don't like” is probably too soft a term, but we've had other first nations representatives come to the committee who have said that they support the legislation despite that section being there.

You can see the dilemma this committee could face when you say that you don't think we should proceed with the legislation, while other communities are saying, “yes, please do”, and it is opt in.

Are you suggesting that we shouldn't proceed with this legislation, even though it's opt-in legislation, in the face of other communities saying that they like this legislation and probably want to opt in?

[Grand Chief Derek Nepinak]

I think it's a question of recognizing that the ultimate decision-makers in the discussion are at the community level. Being decision-makers, they vet their decision-making through their elected chief and council.

Now, I will say that as an organization the Assembly of Manitoba Chiefs can put a lot of resources towards a review of a draft piece of legislation. It can balance draft legislation with the mandates that are established through the constitution of the organization. I think with a very thorough understanding of sovereignty, inherent rights and treaty rights, of the Constitution and of aboriginal rights jurisprudence that has developed over the last 30 years, we can come out with a very informed perspective as to what we're viewing coming out of the legislative offices here.

When you engage a community chief, there is the potential that the chief may not have an expert legal analysis provided to him before he comes to sit before you. I only suggest that because I know, as a former chief of my community, the 3,500-strong Anishinabe people from the Minegozhiibe territory in west central Manitoba,that oftentimes I'm dealing with one crisis right after another, to the point that my ability to put my mind to a task at hand, such as reviewing legislation written in the English or French language, is not there. I'm not saying I don't want to, but I'm saying that different capacities are brought to the table, depending on what position a person sits in within our political infrastructure.