House of Commons Hansard #34 of the 41st Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was ukraine.

Topics

Motions in amendmentFirst Nations Elections ActGovernment Orders

11:10 a.m.

Some hon. members

Yea.

Motions in amendmentFirst Nations Elections ActGovernment Orders

11:10 a.m.

NDP

The Deputy Speaker NDP Joe Comartin

All those opposed of the motion will please say nay.

Motions in amendmentFirst Nations Elections ActGovernment Orders

11:10 a.m.

Some hon. members

Nay.

Motions in amendmentFirst Nations Elections ActGovernment Orders

11:10 a.m.

An hon. member

On division.

Motions in amendmentFirst Nations Elections ActGovernment Orders

11:10 a.m.

NDP

The Deputy Speaker NDP Joe Comartin

I declare the motion carried.

(Motion agreed to)

Pursuant to order made on Monday, December 9, 2013, the House will now proceed to the third reading stage of this bill.

Motions in amendmentFirst Nations Elections ActGovernment Orders

11:10 a.m.

Conservative

Motions in amendmentFirst Nations Elections ActGovernment Orders

11:10 a.m.

Chilliwack—Fraser Canyon B.C.

Conservative

Mark Strahl ConservativeParliamentary Secretary to the Minister of Aboriginal Affairs and Northern Development

Mr. Speaker, it is a pleasure to rise in the House to support Bill C-9, the First Nations Elections Act.

As with everything we do as a government, this bill is about delivering results for Canadians and addressing the priorities of Canadians. That most certainly includes the priorities of first nations citizens of this country, who are currently living under the outdated and discriminatory Indian Act.

As the matters this bill addresses are a priority for first nations, this bill is about empowering first nations across Canada to take charge of their own destinies. In fact, it may easily be said that this is not a government bill, but a first nations bill. The government did not go to first nations with a proposal; first nations came to the government with one. They said, “Here is a serious problem and here is how the government can help us solve it.” Bill C-9 before us today is not the result of the government consulting with first nations; it is the result of first nations consulting with first nations.

I should add that our government was proud to provide the support and coordination that helped first nations engage with each other on a national basis. As the hon. member for St. Paul's stated at a recent meeting of the Standing Committee on Aboriginal Affairs and Northern Development:

We think this is an excellent example of bottom-up legislation.

I could not agree more with the Liberal member.

In that regard, I must recognize the initiative and determination of two first nations organizations that have played a pivotal role in bringing us to this day and giving us the opportunity to provide a legislative framework that is indisputably better than what first nations have been saddled with for decades. This is not simply duplicate legislation to the Indian Act, but an effective, accountable, and responsible option for first nations communities.

It was over five years ago that the Assembly of Manitoba Chiefs, led by then Grand Chief Ron Evans, and the Atlantic Policy Congress of First Nations Chiefs, with the support of our government, began the efforts that ultimately resulted in the bill that is before us today. They saw the need for electoral reform. They had good ideas for improvement. They consulted with the leaders of their local communities and with the people who live in those communities.

Half a country apart, they found a remarkable similarity of opinion emerging from these consultations. The quality and scope of these consultations and the close parallels to be drawn between their recommendations encouraged the government to ask the Assembly of Manitoba Chiefs and the Atlantic Policy Congress of First Nation Chiefs to lead a national consultation process. The Assembly of Manitoba Chiefs covered the west and the Atlantic Policy Congress of First Nation Chiefs handled the east.

The consultations included not only chiefs and band councils; from the beginning, they recognized the importance of including individual grassroots band members across Canada. Both organizations gave the consultations a prominent place on their websites. They published their recommendations and explained what they meant and what they intended to achieve. A simple feedback form enabled and encouraged individuals to provide their thoughts and opinions on the initiatives being proposed. I would point out that this feedback carried considerable weight with the government in developing this bill.

As a result, in supporting Bill C-9, we have the opportunity to endorse not only its contents, but the truly inclusive and collaborative process that led to its creation, an example of how first nations people, their leaders, their representative organizations, and the federal government can work collaboratively to find solutions and achieve a common goal.

It is difficult to imagine a more laudable goal than ensuring that all first nations citizens have the opportunity to participate in free and fair elections. However, the fact is that for many first nations governed by the outdated and archaic Indian Act, the most basic premise of democratic government does not exist. The failures of the Indian Act with respect to elections are well known and long-standing, dating back to the early 1950s. Even before the development of the bill before us today, more than 75 first nations communities decided to take matters into their own hands and move out of the Indian Act to design and implement their own community election codes.

Adoption of the proposed electoral system described in the bill is voluntary. The bill is intended to provide an option for first nations that may not have the capacity to develop their own community election code or that simply want a turnkey and accountable election code that they can opt into.

Let us consider some of the shortcomings the bill would address.

The Indian Act, for example, specifies the chief and band councillors are elected on a two-year term. This is hardly conducive to the design and execution of the long-term strategies needed to achieve key priorities. It also means that first nation communities are in almost constant election mode. By the time a first nation council has been elected, sworn in, got a handle on its responsibilities and started the actual process of governing, it is time to start campaigning for the next election.

Bill C-9 would enable first nation communities to fix that by implementing four-year terms for elected officials, bringing them into line with what is the norm for most other jurisdictions in Canada and allow time to not only learn the job but time to actually do the job.

In addition, the bill would enable different first nations to hold their elections on the same day, a common election day. This innovative idea came directly from the Assembly of Manitoba Chiefs, and it is a good one. With terms of office beginning and ending at the same time, common election days would make it easier for groups of first nations to collaborate and present a common front in business development endeavours and other shared priorities.

Longer terms in office and the potential to set common election dates are important improvements, but any elected official's term is too long if the legitimacy of the electoral process is in question. This is perhaps the most damaging impact of the electoral system provided under the Indian Act.

The sort of checks and balances that allow most Canadians to take for granted the results of an election as an accurate reflection of the will of the people are virtually non-existent in the Indian Act. We have all heard of cases of vote buying and other irregularities, irregularities that even if they do not effect the legitimacy of an election can cause it to be perceived as such.

There is little in the Indian Act to discourage these practices. They can be carried on with little or no consequences. This not only undermines confidence in government, but leads to paralyzing appeals of election results.

Under the Indian Act, anyone who does not like the way in which an election has turned out can simply appeal the results by providing a sworn affidavit to the minister regardless of the merits or validity of their arguments.

In addition, the appeal system under the Indian Act is slow and administratively cumbersome. Many months can go by before a decision is rendered. In the majority of cases the appeals are dismissed, but in the meantime with its legitimacy in question, a first nations government comes to a virtual standstill. Projects and initiatives that can benefit a community may be stalled. To add insult to injury, the Indian Act includes the paternalistic provision that all appeals are decided by the minister.

Similar to the provisions of the Canada Elections Act, Bill C-9 contains provisions that would minimize the likelihood of corrupt election practices by setting out specific offences and specific penalties for those convicted of committing those offences. Instead of appealing to the minister, an elector would file an appeal in federal or provincial court. These appeals would be addressed by the courts, just as they are for federal, provincial and municipal elections. This provision would minimize the potential for frivolous appeals and at the same time remove the minister from the process.

Local law enforcements could lay charges for corrupt activity in connection with first nations elections and they would have the backing of the courts to impose fines and jail sentences on those convicted.

Again, these are the kinds of protections, which most Canadians take for granted, that help to ensure the electoral processes are accountable, consistent and effective and that help to provide for political stability that is so essential to economic growth, job creation and higher standards of living.

The first nations elections act would also encourage greater citizen engagement in the political process by eliminating anomalies and other peculiarities that the Indian Act's lack of clarity has allowed to happen.

The nomination process is perhaps the most glaring example. Under the Indian Act, the same person can run for chief and for council in the same election. Not only can the same person run for both positions, the same person can be elected to and serve in both positions. That would change under Bill C-9.

In addition, the Indian Act provides little guidance on other aspects of the nomination process. If he or she wishes, one person can nominate dozens or more candidates for any position. It is not unheard of for a first nations voter to be handed a ballot with more than 100 candidates listed on it, sometimes without the knowledge of those candidates. This hardly encourages citizens' engagement. That too would change under Bill C-9.

The first nations elections act would enable first nations to implement a more stringent nomination process. First nations could impose a fee of up to $250 to discourage the nomination of candidates who were not interested and were simply running as a lark.

Under Bill C-9, first nations would also have the authority to require all candidates nominated to accept their nomination in writing so the names of people with no desire or interest would not appear on the ballot. Other provisions in the bill would enable the development of regulations to address frequently expressed concerns about the potential for abuse in the distribution of mail-in ballots.

In conclusion, I would point out that neither this provision nor anything else in the bill goes beyond what is the norm for most Canadians. Through the consultations led by the Assembly of Manitoba Chiefs and the Atlantic Policy Congress of First Nations Chiefs, we have learned that first nations citizens want to have the option to divest themselves of the Indian Act provisions and to a new consistent and accountable system similar to that which is enjoyed by all other Canadians.

I would emphasize again that adopting the first nations elections act would not be mandatory for first nations. Bill C-9 is intended to provide an option for those first nations that are having difficulty with the status quo. They may want a more robust electoral system than what is proposed under the Indian Act, but may not have the capacity to design their own. They may have a community electoral system in place that is not working as well as they had hoped. This is an option and it would be flexible. Many of the provisions themselves would be optional, the nomination fee, for example, so it could be tailored to the specific circumstances of individual communities. It is an option that first nations themselves have asked us to provide.

I am confident all members of the House understand and support the belief that a strong, robust electoral system that assures elections are free and fair encourages citizen engagement and promotes good governance. I would urge all members to compare the option the bill would provide to first nations with the electoral system currently provided for in the Indian Act. The problems allowed by the Indian Act's lack of clarity could be exceptionally damaging.

Let me give the words used by Mr. John Paul, executive director of the Atlantic Policy Congress of First Nations Chiefs in a recent appearance before the Standing Committee on Aboriginal Affairs. He said:

—the Indian Act election process is very ruthless. It is not a nice process. It is not pretty, and it's very vicious in terms of how it gets played out in a community. It negatively impacts a lot of people in the community.

Too many first nations have been struggling under the kind of electoral system described by Mr. Paul. It is why Mr. Paul and first nations leaders and individuals across the country came to the government with a plan to give those first nations a better option, the option that Bill C-9 would provide. The bill is the result of a true grassroots movement and it reflects broad and legitimate consensus among the people who want this option. I would argue that our task is as clear as it is simple. We need only to step out of the way.

Motions in amendmentFirst Nations Elections ActGovernment Orders

December 10th, 2013 / 11:25 a.m.

NDP

Jean Crowder NDP Nanaimo—Cowichan, BC

Mr. Speaker, when I give my speech, I will touch on a number of problems with the bill. However, I have a specific question for the parliamentary secretary with regard to the consultation process.

He is absolutely correct that the Assembly of National Chiefs and the Atlantic Policy Congress did carry out a consultation process, but in the briefing that was provided to committee members, the Assembly of Manitoba Chiefs had a frame that it carried out the consultation under. It was the fact that it was looking at new election legislation affording a common election date and longer terms of office.

The Assembly of Manitoba Chiefs initially supported going forward, but then when the draft legislation was presented, it contained additional clauses that would impact directly on first nations autonomy. Those included a continuance of the minister's ability to intervene with an election process, the fact that first nations were forced to the courts and a regulatory process that was not inclusive of first nations involvement.

My question for the parliamentary secretary is this. Why did the Conservatives not take that draft legislation back to first nations and then gather input on what they were proposing?

Motions in amendmentFirst Nations Elections ActGovernment Orders

11:25 a.m.

Conservative

Mark Strahl Conservative Chilliwack—Fraser Canyon, BC

Mr. Speaker, the key part of this, which I spoke about numerous times during my speech, is the opt in nature of the legislation. There is nothing in the bill that compels first nations to adopt this mode of election for their first nation. If they prefer to operate under the Indian Act system, that is their right. If they have a custom election code, that is their right.

If first nations do not like what they see in the bill, they are free to continue on the same course they have currently. There is nothing to compel first nations to adopt this new elections act, although we hope many will choose that option.

Motions in amendmentFirst Nations Elections ActGovernment Orders

11:25 a.m.

Liberal

Marc Garneau Liberal Westmount—Ville-Marie, QC

Mr. Speaker, I listened very carefully to the parliamentary secretary and he made numerous references to the outdated, the archaic to the discriminatory Indian Act and I agree entirely with him.

Could we hope that the government is mustering the courage to scrap the Indian Act and to start over with something that is much more responsible from a government point of view and that brings us into 21st century?

Motions in amendmentFirst Nations Elections ActGovernment Orders

11:25 a.m.

Conservative

Mark Strahl Conservative Chilliwack—Fraser Canyon, BC

Mr. Speaker, certainly this government is taking steps where we can to provide options for first nations to get out from under the Indian Act. When we look at things like the First Nations Land Management Act, which removes the land related provisions for first nations who want to opt in, the legislation allows first nations to opt out of the Indian Act election system.

The hon. member for Desnethé—Missinippi—Churchill River proposed Bill C-428, which removes several sections of the Indian Act. As the Prime Minister said during the Crown-First Nations Gathering, simply blowing up the Indian Act would leave too big a hole. We need to work with first nations to systematically dismantle the Indian Act and that is what we are doing here. We are taking the election provisions and giving first nations the option to get out from underneath the paternalistic Indian Act.

Motions in amendmentFirst Nations Elections ActGovernment Orders

11:25 a.m.

Conservative

Bev Shipley Conservative Lambton—Kent—Middlesex, ON

Mr. Speaker, most of us in the House live in communities where economic prosperity in some respects is taken a bit for granted. Any government has a responsibility to help put together a legislative framework to attract economic prosperity in communities. Bill C-9 is one of those vehicles in which we need to look at in order to help do that.

One of the issues we need to look at, which the parliamentary secretary talked extensively about, is the elections act and reformation of it. Could the parliamentary secretary highlight quickly the main benefits he feels are in Bill C-9.

Motions in amendmentFirst Nations Elections ActGovernment Orders

11:25 a.m.

Conservative

Mark Strahl Conservative Chilliwack—Fraser Canyon, BC

Mr. Speaker, as we have seen, the two-year terms under the Indian Act election system right now simply do not provide enough time for a first nations chief in councils to propose any consistency in their community to allow them enough time to implement a plan perhaps on which they campaigned. The election cycle is too short.

However, the highlights of the legislation, the benefits for communities that choose to opt in, will include reforming the electoral system, which is too often open to abuse, close loopholes in the nomination process so only folks who want to be on the ballot are actually on it and provide the tools and mechanisms to discourage the abuse of the mail-in ballot system.

Right now there are too many loopholes in the Indian Act system. There is too much potential for abuse, and certainly we have seen cases of that abuse. This legislation for those first nations that opt into it would certainly close those loopholes and provide more certainty for those first nations.

Motions in amendmentFirst Nations Elections ActGovernment Orders

11:30 a.m.

Green

Elizabeth May Green Saanich—Gulf Islands, BC

Mr. Speaker, I listened to the parliamentary secretary's speech carefully to hear when he would explain why in a bill, where I agree with him overall, it was about first nations opting in. Overall, it originally came from the Atlantic Policy Congress and the Assembly of First Nations Chiefs of Manitoba. However, without consultation with those first nations, or any other first nations in Canada, we have these two provisions, which I note that my hon. friend from Vancouver Island North, when he was the minister responsible, said that he would not use these provisions.

Why on earth does the bill contain 3(1)(b) and (c), which states that the minister may at his or her own volition, without consultation, force a first nation to operate under this scheme if it believes the minister comes to the conclusion there is a protractive leadership dispute or if cabinet has set aside an election claiming corrupt practice which is not defined.

These are imposition terms that even apply to first nations currently operating under customary practice. I would agree with every word the parliamentary secretary spoke, except that he omitted explaining sections 3(1)(b) and (c).

Motions in amendmentFirst Nations Elections ActGovernment Orders

11:30 a.m.

Conservative

Mark Strahl Conservative Chilliwack—Fraser Canyon, BC

If I had had more time, Mr. Speaker, I would have been happy to talk about that.

The Minister of Aboriginal Affairs and Northern Development currently has the power, under the Indian Act, to take a first nation that is operating under custom code elections and put it back into the paternalistic Indian Act system. This is not a new provision. He has that power, currently, to move a first nation from the custom code into the Indian Act system if there is a protracted leadership dispute.

The member is right. The former minister from Vancouver Island North is correct. This is rarely used. This provision to move a first nation from a custom code back to the Indian Act system has been used three times. This is not a new provision. It is used extremely rarely, only when all other options are off the table and when there has been a protracted leadership dispute.

This is not a new power, and it is used with extreme reluctance, but when the grassroots people of a first nation are not being served because of a protracted leadership dispute, the minister, under the current system, will act.

This provision would allow him to move a first nation from a custom code into this new, improved act instead of putting it back into the flawed Indian Act system. Bill C-9 would allow for that transparency, that robust electoral process, instead of putting the first nation back into the paternalistic and flawed Indian Act.

Motions in amendmentFirst Nations Elections ActGovernment Orders

11:30 a.m.

London North Centre Ontario

Conservative

Susan Truppe ConservativeParliamentary Secretary for Status of Women

Mr. Speaker, Bill C-9 is a good step in the direction of good government on reserve, as the member has already indicated.

We have all heard of electoral abuses during some band elections and their effects on the stability of the affected communities. We are all committed to working to empower first nations communities to become self-governing and to ensure that they experience the economic growth and increased job opportunities that most Canadians have come to expect.

With that in mind, an opt-in framework is more suitable than a mandatory one-size-fits-all approach to band government. Would the member please comment as to why?

Motions in amendmentFirst Nations Elections ActGovernment Orders

11:30 a.m.

Conservative

Mark Strahl Conservative Chilliwack—Fraser Canyon, BC

Mr. Speaker, I would like to thank the member for London North Centre, who is a leading person in this government on the issue of the status of women, ensuring women's equality and that women are protected on reserve. I know that is why she was such a strong proponent of our changes to the matrimonial real property rights of first nations women living on reserve.

An opt-in approach is obviously preferred because for too long, too many governments have imposed their systems on first nations. This bill takes a different approach. It says that only those first nations that wish to participate in this system would opt in. It would be a decision made by the band council.

This collaborative approach is the approach that we would like to see going forward in working with first nations, because when first nations buy in and take the initiative, as they would under Bill C-9, we all benefit.

Motions in amendmentFirst Nations Elections ActGovernment Orders

11:35 a.m.

NDP

Jean Crowder NDP Nanaimo—Cowichan, BC

Mr. Speaker, I am rising to speak on behalf of New Democrats. We will be opposing the bill.

Before I go into the reasons, I want to start with the parliamentary secretary's last comments about the opt-in provisions, because they are really an important piece of the bill. The member continues to emphasize this is an opt-in piece of legislation, but he does not speak to the fact that the minister still has the power to force a first nation, whether it is currently under the Indian Act or under custom code election, into the new elections act proposed under Bill C-9. If the government was truly interested in moving away from a paternalistic approach, it would have moved toward something like a first nations election commission that would have removed that responsibility totally from the minister's hands.

The government is not moving away from a paternalistic approach. It is continuing with it, and that is evident in a number of clauses in this piece of legislation. I am going to touch on those.

I want to give a bit of historical perspective.

Where we would agree with the government is that the current Indian Act is a paternalistic system. I want to refer to a Senate report dealing with first nations elections, which gives a bit of a historical perspective, and I want to read it into the record. It says:

The Indian Act's restrictive electoral system and imposition of federal control was widely resisted among Indian bands. Despite Indian opposition to the Indian Act system of elective government, attempts to suppress traditional forms of government continued. For example, in 1880, West Coast potlatches, an important means of affirming leadership and social order, were banned, and, in the 1920s, the Canadian government jailed the traditional leaders of the Haudenosaunee and installed an Indian Act council.

The 1996 Report of the Royal Commission on Aboriginal Peoples illustrated the difficulties experienced by Aboriginal peoples with respect to the imposition of the Indian Act elective system. The Report concluded that: “for the past 100 years the [Indian] Act has effectively displaced, obscured or forced underground the traditional political structures and associated checks and balances that Aboriginal people developed over the centuries to suit their societies and circumstances”. Thus, the Indian Act electoral regime is rooted in a colonial mentality, and amendments to the Act, from the perspective of First Nations, do not erase colonial control over band elections.

I would argue that this particular piece of legislation, despite the fact that it contains some things that first nations wanted included, continues on that colonial mentality route.

In a legislative summary document, there is more that has been indicated in terms of history. I just want to put on the record other proposals that could have been much more effective. The summary document indicates that:

A key attempt at policy reform was the 1998-2001 Assembly of First Nations/Indian and Northern Affairs Joint Initiative on Policy Development.... The Joint Initiative arose in response to the 1996 Report of the Royal Commission on Aboriginal Peoples and was intended to provide policy options on key themes: elections, membership, additions to reserves and environment. With respect to elections, a key proposal was to develop community leadership selection systems and remove the application of the Indian Act as a preliminary measure to re-establishing traditional forms of leadership selection. To accomplish this, the following steps were suggested: community-level development of custom codes; community development of local dispute resolution procedures; the establishment of regional First Nations capacity and advisory bodies....

Then it went on to talk about opt-out provisions and so on.

This very good report from 1998-2001, a very in-depth process, was completely disregarded when it came to developing this piece of legislation.

In my question to the parliamentary secretary, I did touch on the stakeholder engagement process, but I want to touch on this aspect again, because it is a key sticking point. Canada did indicate, after a great deal of pressure, its commitment to the UN Declaration on the Rights of Indigenous Peoples. At the time the Canadian government finally caved and agreed to support it, it indicated it would take next steps. To date, we have not seen those next steps. However, one of the clauses in the UN declaration calls for “free, prior and informed consent”. What we heard in testimony at the committee was divisions among first nations about whether this piece of legislation was the way to go. Again, the opt-in clause makes it possible for a first nation that does not demonstrate free, prior and informed consent to this piece of legislation to be forced under this legislation.

When it comes to stakeholder engagement, the briefing document says with regard to the Assembly of Manitoba Chiefs:

With funds provided by the Department of Aboriginal Affairs and Northern Development (the Department) between January and March 2010, the Assembly of Manitoba Chiefs (AMC) held community engagement sessions in the province's Indian Act First Nations to obtain views and comments on the development of new election legislation affording a common election date and a longer term of office.

Those are the two key points in that consultation process: a common election date and longer terms of office. Of course, the proposed legislation contains much more than that, so the Assembly of Manitoba Chiefs has withdrawn its support for the piece of legislation that is before the House.

The Atlantic Policy Congress of First Nations Chiefs was also provided an opportunity. It has continued to support this particular piece of legislation despite some concerns about some of the clauses in it. It wants to go forward with it.

However, I would come back to the matter of free, prior and informed consent.

I want to turn to the Assembly of First Nations, which I think made a very good intervention. Its representative said:

The AFN supports enacting the full decision-making authority by First Nations governments empowered by their citizens. In choosing and designing mechanisms for the fulfillment of this authority, care needs to be taken that new barriers or new oversight mechanisms are not being created, further vesting control in the office of Minister of Aboriginal Affairs and Northern Development.

Of course, as I pointed out, in paragraphs 3(1)(b) and 3(1)(c), that continued ability of the minister to interfere and intervene is still there. There were other mechanisms that could have been brought forward, which I will also touch on in a minute.

I want to turn to the Assembly of Manitoba Chiefs and the appearance of Grand Chief Derek Nepinak before the committee. He raised specific concerns that other first nations have also raised regarding the legislation before us. He said:

Bill C-9 does not accurately reflect the discussions and decisions made by first nations leadership in Manitoba as it:

purports to grant the authority to the Minister to subjugate a First Nation to the act without the consent of the people. ...

This authority defeats the objectives of the AMC recommendations ab initio that First Nations retain their right to opt-in.

This 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.

“Protracted leadership dispute” is not a defined term and leaves broad discretion to the Minister.

The AMC did not make any such recommendation.

Once placed in the schedule considerable obstacles and costs limit the ability of a First Nation from being removed from the schedule of “participating First Nations.”

On that point, I will refer back to clause 3(1)(a), which would allow a band to opt in to the legislation by making a request through a band council resolution. By simple band council resolution, the band could have a first nation participate and opt in. However, if a first nation finds that this piece of legislation does not work for it and wants to opt out, under paragraphs 42(1)(a), 42(1)(b), and 42(1)(c), it is a far more complicated procedure.

Under this section of the proposed act, for a first nation to opt out if it finds it does not work, the community election code has to contain an amending formula. Also, the question of a first nation being removed from the act must be submitted to a community vote in which electors must vote by secret ballot. The minister would only remove a first nation from the act if at least 50% of all eligible electors cast a vote and if a majority of these votes were in favour of the community election code and the removal of that schedule. The requirement to publish the code would ensure that all members would have the opportunity to read and become acquainted with the election code.

It is a simple band council resolution to get in, but it is a complicated process to get out. It comes back to the fact that what the government really wants to do is force people into this proposed piece of legislation and then not let them get out of it if it does not work for them.

Grand Chief Nepinak went on to talk about section 3(b). He said 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.” ...

This preserves broad discretion of the Minister to determine that "there was a corrupt practice" methods and criteria not outlined under the proposed legislation.

The AMC did not make any such recommendation.

Once placed on the schedule considerable obstacles and costs limit the ability of a First Nation from being removed from the schedule of “participating First Nations.”

In subclause 3(1), “protracted leadership” and “corrupt practice” are not defined. That gives the minister a fair bit of authority to determine who he or she will force under this new election act.

One of the things that had been asked for by the Assembly of Manitoba Chiefs was a common election date for the first nations that chose that. Grand Chief Nepinak indicated:

...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.

Election dates are found in clauses 5 and 6. Grand Chief Nepinak's written brief to the committee stated:

The bill does not achieve a common election day with an extended (four year) term for all Indian Act elections, and does not give options for current Custom Election Bands to opt into a common election day with an extended four year term.

The other piece that has caused concern for many first nations is the restriction of the appeal process to external courts. Grand Chief Nepinak also pointed out:

This bill limits appeals to what it calls courts of competent jurisdiction and lists federal or provincial court as the only courts of competent jurisdiction.

This bill ignores the rights of First Nations people to develop their [own] legal institutions including a local appeal process.

This bill ignores the AMC's request for a local appeal process.

This bill requires individuals to finance cost prohibitive legal counsel and go to court for appeal rather than a less expensive and less complex and intimidating and local appeal process.

The requirement that First Nations appeal to federal and provincial courts is associated with a reduction [in] administrative and financial responsibilities of the Minister and constitutes a conflict of interest for the Minister, i.e. the Minister is not without motive to subject First Nations to the new legislation.

In the conclusion of the brief Mr. Nepinak presented to the committee, he said:

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 and the resultant product is another piece of federal government owned legislation that perpetuates Canada’s self-proclaimed authority and chips away the rights of First Nations.

The fact that the government talks about a consultation process, and that the bill was broadly supported and whatnot, flies in the face of the testimony that was heard in committee.

I want to touch on one of the recommendations that came out of the Senate report, “First Nations Elections: The Choice is Inherently Theirs”. Recommendation 3 states:

That the Department of Indian Affairs and Northern Development, in collaboration and consultation with the appropriate First Nations and/or Treaty Organizations, take immediate steps to establish a First Nations Electoral and Appeals Commission, operating on a national and/or regional basis, empowered to hear appeals arising from First Nations elections and to promote and strengthen First Nations electoral capacity.

That is a very important recommendation that has come from a number of different bodies. I referred earlier to the JMAC study that was conducted. The Senate held numerous hearings across the country to hear from first nations and their representatives about some proposed changes to the Elections Act. That is explicitly not mentioned in this piece of legislation. It would be an important avenue to provide community members an appeal process that would perhaps allow for appeals to be heard in their own language, because as far as I know, there are not too many federal or provincial court judges who speak many of the indigenous languages across this country. It would be a process that would respect custom codes and some of the traditions that our first nations communities may have. That is one recommendation that was not included in the bill.

I want to touch on the regulatory process for one moment because much of the changes in the act will happen under regulations. Under the regulatory process, clause 41 states, “The Governor in Council may make regulations with respect to elections, including regulations respecting...”.

It includes appointments, powers, duties, removal of electoral officers, a requirement that electoral officers be certified, the manner of identifying electors of a participating first nation, the manner in which candidates may be nominated, the imposition by participating first nations of a fee on each candidate, the manner in which voting is to be carried out, the removal from office of a chief or councillor of a participating first nation by means of petition, the holding of by-elections, and “anything else that by this Act is to be prescribed”.

Those are pretty broad powers that are outlined in the regulatory process. Unlike other regulatory processes where there was at least some notion of working with first nations, nothing in Bill C-9 talks about how first nations will be consulted and accommodated with regard to developing the regulations. This is a very important piece.

For the benefit of people who may be listening, by and large, most regulatory processes have absolutely no parliamentary oversight, as we have seen in other regulatory processes. The regulations are posted, there is a period of time where the public can comment, the regulations are modified based on public input, and then they are adopted. Neither parliamentary committees nor Parliament has any oversight on those regulations.

With the broad range of activities that would be included in these regulations, it is very important to include in this piece of legislation exactly how first nations will be included in developing these regulations, which will have a direct impact on how elections are conducted in their communities.

Part of the reason why that process needed to be spelled out was that there is a deep and abiding mistrust of how the government conducts consultation, or what it is now calling stakeholder engagement because it knows that stakeholder engagement does not meet the test of what the Supreme Court has laid out for a consultation process.

We only have to look at Bill C-9 to find that the government took a step toward a consultation process by engaging the Assembly of Manitoba Chiefs and the Atlantic Policy Congress, but then expanded the scope of the bill to that which was not included in the terms of reference for the consultation process that was conducted by AMC and APC.

We also have before us a draft piece of legislation called the first nations education act, which is another example where there is a deep mistrust of the consultation process. In fact, today there will be a rally on Parliament Hill protesting the government's direction on consultation.

At the committee stage, the NDP did propose a couple of amendments that would have improved the bill. We voted against clause 3(1)(b) and (c) at the committee stage so that they would be removed, which would remove the ministerial jurisdiction. We also asked for a report back to Parliament because we want parliamentary oversight on the regulations. That proposed amendment, which was voted down in committee, proposed that for any amendments made to the regulations or the schedule respecting the additions or removals of first nations, orders of the minister respecting the coming into force of any community election codes, names of persons who have been convicted of an offence under the act and penalized accordingly, applications submitted to a competent court regarding the contested election of the chief or council of a participating first nation and any decision made by that court, petitions for the removal of office of the chief or councillor, the minister must cause a copy of the report to be tabled in each house of Parliament on any of the first sitting days after which the House is sitting, and so on.

We did attempt to improve the piece of legislation before us so that at least it would reflect some of the concerns and provide some parliamentary oversight both to the regulatory process and the legislation itself.

Based on those facts, we cannot support the bill. If the government wants to claim it is engaging in consultation, it must adhere to the principles around consultation, which means that it must provide the resources and the information. It must listen and then take what it hears and make sure it is reflected in the legislation that comes before the House.

Motions in amendmentFirst Nations Elections ActGovernment Orders

11:55 a.m.

Green

Elizabeth May Green Saanich—Gulf Islands, BC

Mr. Speaker, I am very indebted to the hon. member for Nanaimo—Cowichan, and to know that the official opposition, like the Green Party, feels compelled to vote against Bill C-9, even though it initiated with consultations, as she quite rightly pointed out, on two key points, narrow points, of lengths of terms and timing of elections. We have seen the bill morph, thanks only to paragraphs 3(1)(b) and (c), into something that shows a disrespect for bottom-up control, and a disrespect for section 35, the inherent rights of first nations.

As the official opposition attempted to do in committee, as I attempted to do earlier this morning at report stage, would the hon. member share with me any insight she has as to why, with such good intentions from the Atlantic Policy Congress of First Nations and the first nations chiefs of Manitoba, we could not just get the changes that the first nations themselves requested so that we could vote for it, instead of having this imposition of ministerial discretion on what should be inherently first nations self-government?

Motions in amendmentFirst Nations Elections ActGovernment Orders

11:55 a.m.

NDP

Jean Crowder NDP Nanaimo—Cowichan, BC

Mr. Speaker, it is puzzling. I believe that it just continues with the approach the current government has consistently taken with regard to first nations, which is lack of recognition around inherent rights, lack of movement on the UN Declaration on the Rights of Indigenous Peoples, continued lack of appropriate consultation. This has clearly been outlined by the Supreme Court. We have seen it in the first nations water bill. We saw it in the matrimonial real property bill. We are now seeing it in the elections bill that is before the House and we are seeing it in the first nations education act.

We could always remain eternally optimistic that during this comment period where first nations, schools, parents and organizations across this country have an opportunity to comment on the first nations education act, that the proposed piece of legislation that is before first nations would substantially change, based on that input, but that is not the track record of the government.

Once again, first nations have come to the table in good faith. The AMC, the APC, came to the table in good faith, yet they end up with a piece of legislation that at least the AMC cannot support.

Motions in amendmentFirst Nations Elections ActGovernment Orders

11:55 a.m.

NDP

Claude Gravelle NDP Nickel Belt, ON

Mr. Speaker, I thank my colleague from Nanaimo—Cowichan on her dedicated work on the files for first nations.

I am glad she mentioned the proposed national first nations education legislation, because I have in my hands a letter that was sent to me by Chief Ted Roque of the Wahnapitae First Nation. Yesterday, I just happened to be speaking to Walter Naveau, the chief of the Mattagami First Nation. The last time I was on the Whitefish first nation, Steve Miller, who is the chief out there, spoke to me. Marianna Couchie also had a telephone conversation with me about the education legislation a couple of months ago.

It is all the same story over and over again. It is the lack of consultation with the first nations. It is the same thing with the bill, Bill C-9. It always comes back to lack of consultation. Now the Prime Minister is facing a mini-revolt in his own caucus because of lack of consultation with his own members.

Would the hon. member comment on the fact that the Prime Minister never consults, not only with his own members but also with first nations?

Motions in amendmentFirst Nations Elections ActGovernment Orders

11:55 a.m.

NDP

Jean Crowder NDP Nanaimo—Cowichan, BC

Mr. Speaker, the member for Nickel Belt has been working very hard with the opposition arising to the first nations education act. It is just another example of a top-down paternalistic approach, imposing more bureaucracy and reporting on first nations, not listening to the very valid concerns, disregarding the successes that many first nations are having. I just want to point to B.C. and the first nations education act that was passed in B.C. in this House a number of years ago. It is showing some very good results, but that could all be wiped out by this supposed first nations education act.

With regard to consultation, it is very interesting, because I would say that the Conservatives acknowledge that they are not doing consultation because they do not call it consultation anymore. They call it stakeholder engagement.

As I mentioned earlier, they know that stakeholder engagement does not meet the test clearly outlined by the Supreme Court in a number of court decisions about the duty to consult, and I might add, the duty to accommodate. They know that it does not fit, so they are clearly not doing the consultation.

Motions in amendmentFirst Nations Elections ActGovernment Orders

Noon

Conservative

Wai Young Conservative Vancouver South, BC

Mr. Speaker, the member for Nanaimo—Cowichan commented a couple of times that the bill does not provide for an independent appeals commission. The fact is that this bill would remove the Minister of Aboriginal Affairs and Northern Development from the elections appeal process altogether. Instead, it would put this power back into the hands of the courts, where qualified, independent judges could hear these appeals.

This is how the provincial and federal elections appeal processes are decided. Is the member suggesting that this is not an improvement from the status quo?

Motions in amendmentFirst Nations Elections ActGovernment Orders

Noon

NDP

Jean Crowder NDP Nanaimo—Cowichan, BC

Mr. Speaker, what the member is suggesting is that the government actually listened to first nations, who asked for a first nations commission, something like the Elections Canada commission, which would be a place where people could go with concerns.

That is what first nations have asked for, not what the government is imposing.

Motions in amendmentFirst Nations Elections ActGovernment Orders

Noon

NDP

Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC

Mr. Speaker, I thank my colleague from Nanaimo—Cowichan for her good presentation on this bill.

For 23 years I was involved in the negotiations that resulted in the adoption of the UN Declaration on the Rights of Indigenous Peoples. Article 3 of the declaration speaks about the right to self-determination of indigenous peoples, by virtue of which they freely determine their political status. The word “freely” is important in this sentence.

Perhaps my colleague could help me understand something about this debate. It is now 2013, and today we are celebrating the life of a very important person in our history, Mr. Mandela, who brought down the apartheid system in South Africa. It seems that what is being proposed here today, to borrow the parliamentary secretary's words, is the improvement of a system that closely resembles the system that existed in South Africa. Can she explain to me why we are going in that direction instead of letting aboriginal peoples freely determine their political status?