Mr. Speaker, the member for Desnethé—Missinippi—Churchill River has spoken of his personal experience living under the Indian Act. He stated that he brought forward his private member's bill “to provoke meaningful conversation about the need to repeal this outdated and archaic act and to create a more modern and less objectionable legislative framework in its place”.
I do not doubt that the member had good intentions.
As I have said repeatedly in this chamber, the Indian Act is the embodiment of failed colonial and paternalistic policies. There is no question that we need to find a way to move beyond this outdated and abhorrent legislation. However, there are some fundamental problems with both the process that led to Bill C-428 and with the bill itself.
First, I would like to discuss the process that led to the bill and the unacceptable precedent it establishes in terms of the Crown's duty to consult with first nations on legislation that impacts their inherent and/or treaty rights.
There is no other piece of federal legislation that has more significant impact on the day-to-day lives of first nations than the Indian Act. As such, any process that would successfully move us beyond this legislation has to be first nations led and developed in true partnership with first nations, no matter how well intentioned it is for first nations.
It requires extensive consultation of first nations across the country.
Jody Wilson-Raybould, representing the Assembly of First Nations, spoke to Bill C-428 and explained this to the aboriginal affairs committee:
In terms of fundamental aspects impacting upon first nations from bills such as this that are imposed upon our first nations, the requirement for consultation is extremely high and deep, as they call it. While it may be difficult to speak to every first nation in the country, there is a need to ensure that first nations' voices are heard and that every effort is made to speak with those first nations who hold the rights and will be impacted.
That level of consultation simply has not happened regarding Bill C-428. Further, I think it is important to remember that the duty to consult with first nations on legislative changes like this rests with the Crown and should be conducted on a nation-to-nation basis. This is not a duty that can be delegated to, or assumed by, an individual member of Parliament.
Ironically, the member for Desnethé—Missinippi—Churchill River summarized some of the key practical considerations himself, when he explained to the aboriginal affairs committee that “a private member's bill in the House of Commons does not have the financial or human resources for me to conduct a full-scale consultation..”.
He further stated:
Currently, the federal government has the mandate to do a formal consultation. They have the capacity. They have the budgets. They have the individuals and human resources to do the formal consultation.
Unfortunately, there has been no such consultation by the federal government on the potential impacts of this bill, and the limited review process that parliamentary committees do is no substitute for that consultation.
Parliamentarians discharging our responsibility to review legislation in the House of Commons and the Senate do not equate with or replace the Crown's responsibility to discharge its fiduciary responsibility to conduct appropriate consultations. Rather, it is incumbent on parliamentarians, as part of any responsible legislative review, to determine if the Crown has engaged in such consultations, and if not to reject the bill.
Witness after witness at the committee told us that although they sympathize with the member's intentions, this was an inappropriate way either to amend the Indian Act or to develop a process to move beyond it.
This bill is not the solution.
That brings me to some of the substantive problems with this bill.
While recently the member has focused his comments more on the objective of encouraging a discussion on this issue, let us not forget that the short title of this bill is the “Indian Act amendment and replacement act”. The member told the aboriginal affairs committee that though this bill was trying to “set up a legislative process for first nations on a year-to-year basis, consult with the government and look at more modern, respectful language that properly reflects today's society”, he went on to note, “Currently in the Indian Act there's nothing that requires the federal government to consult with first nations on a year-to-year basis”.
There is nothing in Bill C-428 that requires the federal government to consult with first nations about moving beyond the Indian Act. All Bill C-428 does is to require the minister to report to the aboriginal affairs committee annually on what has been done, a report that could conceivably be one word: “nothing”.
Ms. Raybould of the AFN made it clear to the committee that “Bill C-428 is not the solution”. She said, “We need strong and appropriate governance, not tinkering with the Indian Act, creating perhaps the illusion of progress”. The balance of the bill is just that, tinkering with the Indian Act in a way that has huge unintended consequences.
Two key examples that we managed to deal with at committee were the sections of the bill that would have overhauled wills and estates in the Indian Act, and ill thought-out out changes to section 85.1 of the act. With regard to wills and estates, the original bill would have created absolute chaos and unintended consequences, in terms of everything from Indian customary adoptions to how a common-law spouse would be treated. Thankfully, all members of the committee recognized the potential harm of these changes and voted them down.
The bill would have repealed section 85.1 of the Indian Act, which would have created complications for first nations that wished to maintain their bylaws that prohibit or regulate intoxicants. This clause also had to be amended to prevent the potentially devastating impact of restricting the ability of first nations communities to declare a reservation dry. In trying to fix this mistake, the member created yet further untended impacts that had to be dealt with through report stage amendments.
Examples like these show that trying to tinker with a piece of legislation as complicated as the Indian Act is not something that should be done through the abridged legislative process for private members' business. Who knows what other unintended consequences still remain within the bill?
Michèle Audette, president of the Native Women's Association of Canada, summed it up best when she told the aboriginal affairs committee, “Yes, we need to get rid of the Indian Act, but not this way”.