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.