Mr. Speaker, I want to thank you for the opportunity to pose a question to the mover of the bill.
I am, of course, rising to speak to Bill C-428.
I want to start with a quote from volume 1 of the report of the Royal Commission on Aboriginal Peoples with respect to recommending a commitment to ethical principles of relations:
To begin the process, the federal, provincial and territorial governments, on behalf of the people of Canada, and national Aboriginal organizations, on behalf of the Aboriginal peoples of Canada, commit themselves to building a renewed relationship based on the principles of mutual recognition, mutual respect, sharing and mutual responsibility; these principles to form the ethical basis of relations between Aboriginal and non-Aboriginal societies in the future and to be enshrined in a new Royal Proclamation and its companion legislation
This report came forward in 1996 and has largely not been implemented.
I read that piece around ethical relations because it would seem to me that those principles of mutual respect and recognition are important when we reform any legislation that has an impact on first nations.
I want to talk a little bit about the Indian Act itself. As the member rightly pointed out, the Indian Act is a paternalistic piece of legislation.
I want to read a couple of pieces from a document, “Like an Ill-Fitting Boot: Government, Governance and Management Systems in the Contemporary Indian Act”.
Today the Indian Act is the repository of the struggle between Indian peoples and colonial and later Canadian policy-makers for control of Indian peoples' destiny within Canada. The marks of that struggle can be seen in almost every one of its provisions.
It goes on to outline a couple of major problems with the Indian Act. It says:
The Indian Act appears to be a legislative fossil. It reflects administrative and organizational practices that were characteristic of public institutions in the early and mid-twentieth century, but that have been modified and superseded in other governments. The Act relies upon regulation, top-down authorities, fiscal control, and enforcement. Today most Canadian governments and other organizations rely upon collegial decision-making and policy development, policy research, human resource development, management accounting systems, and citizen engagement. The Indian Act does not mention these things, and the basic provisions do not leave much room for them.
The Indian Act has a powerful impact on the quality of democracy in Band governments. Having the force of law and backed by financial power, the Act mandates one particular set of institutions and practices to the exclusion of others. In this way it affects the abilities of First Nations to shape more accountable and democratic governments.
It also says:
Few people are satisfied with the Indian Act, but no one will deny its importance.
This is why it is important to have a very respectful, thoughtful, collaborative process in order to replace the Indian Act.
The author went on to say:
For the individuals to whom it applies, the Act is a basic and specific constitutional document. It defines their rights and entitlements, their citizenship and their relationship to the federal and provincial governments. It provides the mechanisms that include or exclude them from membership in a Band. For First Nations, it creates the framework within which both public and First Nations officials and political leaders must work, profoundly shaping the nations’ political and economic life.
That in itself has been a long-standing argument about why governments of various political stripes should not be doing things piecemeal and taking apart the Indian Act. It has major repercussions and implications for first nations' relationships both among the nations themselves and with the government.
Finally, the author said:
It is obvious that the original Indian Act was not created with the self-determination of First Nations communities in mind. Its original purpose was to permit federal officials to control First Nations and to enable social engineering–the coercive transformation of Indigenous societies and governments to bring them into line with the purposes and visions of the Canadian government.
With that kind of background, it becomes absolutely critical when there are proposed changes to the Indian Act that there be a process put in place which is co-created with first nations. On that point, I want to refer to article 19 in the United Nations Declaration on the Rights of Indigenous Peoples.
Article 19 says:
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
In that context, with all due respect to the member, he is not the Crown. He is an individual in the House. He does not have the authority or the resources to implement a consultation process. He may well have talked to first nations and other organizations, but that does not meet the test of duty to consult.
With regard to the bill, in April, the committee received a document from Paul Chartrand Consulting. In that document, Mr. Chartrand said:
My first recommendation is a policy that no amendment to the act is to be proposed or introduced in Parliament without first conducting proper consultations with first nations representatives, and that all bills be drafted in consultation with them.
This approach would tend to promote the democratic principle that laws ought not to be passed without the agreement of those who are to bear the burdens or reap the benefits of the legislation. This approach would at least partly remedy the lack of equitable representation and participation of first nations in Canada's Parliament....
In the event that the government struggles with what appropriate consultation would look like, I would like to refer it to its own ministerial representative Wendy Grant-John's report on matrimonial real property. She laid out a process for what consultation could look like. She said:
The Department should develop, as soon as possible, specific policies and procedures relating to consultation in order to ensure that future consultation activities can identify and discharge any legal duty to consult while also fulfilling objectives of good governance and public policy by:
1) Ensuring First Nations have relevant information to the issues for decision in a timely manner;
2) Providing an opportunity for First Nations to express their concerns and views on potential impacts of the legislative proposal and issues relating to the existence of a duty to consult;
3) Listening to, analyzing and seriously considering the representations and concerns of First Nations in the context of relevant legal and policy principles including their relationship to other constitutional and human rights principles;
4) Ensuring proper analyses by the Department of Justice of section 35 issues relating to any proposed legislative initiative are thoroughly canvassed before, during and after consultations;
5) Seriously considering proposals for mitigating potentially negative impacts on aboriginal and treaty rights or other rights and interests of First Nations and making necessary accommodations by changing the government’s proposal
6) Establishing, in consultation with First Nations, a protocol for the development of legislative proposals.
We can see time and time again where legislation is brought forward in the House that does not meet those six criteria, very ably outlined by Wendy Grant-John for the then-minister of Aboriginal Affairs.
There are international conventions around proposals for what consultations should look like in a domestic setting. This is from Convention No. 169 from the International Labour Organization, also known as the ILO. They have a specific section on consultation and participation. It said:
The spirit of consultation and participation constitutes the cornerstone of Convention No. 169 on which all its provisions are based. The Convention requires that indigenous and tribal peoples are consulted on issues that affect them. It also requires that these peoples are able to engage in free, prior and informed participation in policy and development processes that affect them.
The principles of consultation and participation in Convention No. 169 relate not only to specific development projects, but also to broader questions of governance, and the participation of indigenous and tribal peoples in public life.
In Article 6, the Convention provides a guideline as to how consultation with indigenous and tribal peoples should be conducted:
Consultation with indigenous peoples should be undertaken through appropriate procedures, in good faith, and through the representative institutions of these peoples;
The peoples involved should have the opportunity to participate freely at all levels in the formulation, implementation and evaluation of measures and programmes that affect them directly;
Another important component of the concept of consultation is that of representativity. If an appropriate consultation process is not developed with the indigenous and tribal institutions or organizations that are truly representative of the peoples in question, then the resulting consultations would not comply with the requirements of the Convention.
In conclusion, with respect to the member, the process that he has undertaken does not fulfill either domestic or international parameters for duty to consult. I would argue that all members in the House should vote against the bill. The Indian Act changes have far-reaching effects and they must be undertaken in a responsible, respectful manner.