Debates of June 11th, 2013

Bill S-6—Time Allocation Motion

[Dany Morin, NDP, Chicoutimi—Le Fjord, QC]

Mr. Speaker, earlier when my Conservative colleague rose on a point of order to ensure that the debate, both the questions and the answers, was on the time allocation motion, I thought he made a good point. I would therefore remind the minister that he should do the same thing and not talk—

[The Deputy Speaker, NDP, Joe Comartin]

That is not a point of order.

The hon. minister.

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

Mr. Speaker, he opens the door, but he does not want us to come in. He should just reword his questions.

The fact remains that it is important to pass Bill S-6 in order to give first nations living under the Indian Act the means to have transparent and open elections. These elections will in turn create a better climate in first nations for the economic, cultural and social development of their communities.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I am pleased to ask a question.

My colleague must be sick of getting up in the morning to be told by the Leader of the Government in the House of Commons that he is moving a time allocation motion on a bill that relates to his portfolio. This is the fourth or fifth time this month, at least, that the minister has had to answer our questions. He should talk to his leader if he is starting to grow tired of it because he seems to be sick of answering these questions.

Based on the answers he has been giving today, we see that the minister knows very little about parliamentary procedure. He seems to find that funny. I see him laughing. That is just fine.

Does he think that a bill can be passed without a time allocation motion and, if so, would inordinate delays slow down the process to the point where it would be impossible to make progress?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

Mr. Speaker, I am laughing because the member brought up parliamentary procedure. I was thinking about the period from 1984 to 1993, when I sat in the House of Commons on the government side.

I watched federal politics closely for more than 20 years before I returned in 2011. My experience in Parliament has taught me one thing: when the opposition systematically prevents Canadians—and in this case, first nations—from benefiting from a bill, the government should do everything it can to get the bill passed as quickly as possible, which is what we are doing.

[The Deputy Speaker, NDP, Joe Comartin]

Order. It is my duty to interrupt the proceedings and put forthwith the question necessary to dispose of the motion now before the House.

The vote is on the motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

No.

[The Deputy Speaker, NDP, Joe Comartin]

All those in favour of the motion will please say yea.

[Some hon. members]

Yea.

[The Deputy Speaker, NDP, Joe Comartin]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Deputy Speaker, NDP, Joe Comartin]

In my opinion the yeas have it.

And five or more members having risen:

Call in the members.

(The House divided on the motion, which was agreed to on the following division:)

Vote #746

First Nations Elections Act

[The Acting Speaker, Conservative, Barry Devolin]

I declare the motion carried.

The House resumed from May 28 consideration of the motion that Bill S-6, An Act respecting the election and term of office of chiefs and councillors of certain First Nations and the composition of council of those First Nations, be read the second time and referred to a committee.

Second Reading

[The Acting Speaker, Conservative, Barry Devolin]

Order. When Bill S-6 was last before the House, the hon. member for Western Arctic had completed his speech. There are eight minutes remaining in questions and comments.

Questions and comments, the hon. member for Sherbrooke.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I am pleased to be able to ask my colleague a question in response to his speech on Bill S-6, which we are debating today. This is another bill regarding first nations.

Every time we talk about first nations, we must remember that the government has a duty to consult when it is doing anything regarding rights, reserves or anything related to first nations.

I would like to ask my colleague whether consultations on Bill S-6 were done regarding elections on aboriginal reserves. If so, were the results of those consultations taken into account in the Bill S-6 we have before us today?

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Speaker, of course, there were consultations that took place with two first nations groups in particular. However, the requirements that came out of those consultations were not met. The Assembly of Manitoba Chiefs has withdrawn its support for the bill. There is still some support from the Atlantic Policy Congress of First Nations Chiefs.

I want to read an email that I was copied on, which was directed to the parliamentary secretary for aboriginal affairs. It is from a person from Band 23 in New Brunswick. She says:

I was watching second reading of the Bill on CPAC last night (Tuesday May 28, 2013) and it brought to mind some interesting concerns regarding the process by which this legislation and others, has unfolded. You specifically mentioned an organization that supposedly represents the interests of the people in Atlantic Canada—the Atlantic Policy Congress of First Nations Chiefs—and praised their input in the process. And there was mention, I am not sure if it was by you, that Chiefs were asked to take this legislation back to their communities to solicit input from the people. Well, from a personal perspective there has been no consultation with the people in my community. In fact, you would be hard pressed to find someone who has any idea these changes....have been duly informed and have had an opportunity to question and comment. This has not been the case with Woodstock Band 23 in New Brunswick and if one community has been left out then I am sure there are others have been as well.

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

Mr. Speaker, I want to thank the member for Western Arctic for his input on this piece of legislation and, of course, for the great work that he does on the aboriginal affairs committee.

There is one specific clause in the bill that I want to ask the member about, clause 41, which provides for governor-in-council to make regulations.

We just finished with Bill S-8 on safe drinking water, which was all about making regulations. The concern that was raised under Bill S-8, and I am sure it will be raised under Bill S-6, is the fact that there is no rigorous provision for first nations to be involved in making regulations. In fact, the NDP proposed an amendment to Bill S-8 that would see regulations come back before the House and tabled to the appropriate committee so that there would be parliamentary oversight.

Could the member comment on the fact that there is no provision in this piece of legislation for first nations to be involved in the development and implementation of regulations?

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Speaker, certainly that is the nub of the issue with this bill and so many of the bills that the Conservatives have put forward regarding first nations governments. There has been lip service paid to the idea that first nations governments have a legitimate status, and they do under the Constitution and in so many ways, yet we leave them out of so much of this legislation that is going forward right now.

Regulation is where the rubber hits the road in this bill. Under section 3, the minister would just have to be satisfied that a protracted leadership dispute has significantly compromised governance of a first nation, whatever that means. The minister could then force that first nation into the Elections Act and put forward the regulations of how that would occur. Without any appeal, if the minister had a problem with a first nation, he or she would have the ability to shut it down and put in new elections regulations. This is really inappropriate.

[The Acting Speaker, Conservative, Barry Devolin]

Order. Before I go to questions, I would ask all hon. members, if they are staying in the chamber, to take their seats and listen to the debate; it would be greatly appreciated.

Questions and comments, the hon. member for Saanich—Gulf Islands

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, we are looking at time allocation on this complex bill and less time to get at it. However, I can see from presentations from first nations, such as the one from B.C. Regional Chief Jody Wilson-Raybould, that there is acknowledgement that the bill represents some progress. At the same time, there is deep concern that it is not the right way to move toward a transition to greater self-government.

Given time allocation, does my friend for Western Arctic think there is going to be any way that we can repair the things that are wrong with the bill and pass it in a form that would meet with the approval of first nations across Canada?

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Speaker, I am afraid that is simply not going to happen, whether time allocation occurs or not. The Conservative majority government has chosen not to deal with amendments in a good fashion on the aboriginal affairs committee for the last two years that I have sat on it.

A good example was Bill C-47, a bill that deals only with specific regions of the country. Representatives of those regions of the country put forward 50 amendments. New Democrats brought them forward and the Conservatives chose not only to vote against them but to not even speak to them. Once a bill is written, they do not seem to be interested at all in trying to work with the bill to make sure it is in a good fashion. The consultation is weak. Witnesses now would rather not come to the aboriginal affairs committee because they see it as a waste of their time.

The process is falling apart around the Conservative government, and it keeps pushing forward with these bills.

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

Mr. Speaker, I am sad to say that the bill represents yet another of the bait-and-switch approaches of the government. In good faith, the first nations have suggested the need for legislation in a certain area. The government went forward and drafted a bill and then put in a poison pill that no first nation can live with.

This was to be an opt-in bill. That was the purpose of the bill, that first nations could decide whether to adopt the template for first nations elections as outlined in the bill. Then the government put in paragraphs (b) and (c) of one clause that give the minister unprecedented powers to impose it on a first nation.

Yet again, the Conservatives cannot help themselves. Why can they not listen? They pretend they do not know, but the bill actually came from the Senate and all of this was debated in the Senate. The Assembly of First Nations, the Atlantic Policy Congress and all of these people told the government that, and yet there is no concession that there needs to be an amendment and that these egregious paragraphs of the clause need to be removed.

The bill is to establish an alternative regime to the one in the Indian Act to govern the election of chiefs and councillors of certain first nations. Among other things, the regime would provide that chiefs and councillors hold office for four years. It would provide that the election of a chief or councillor might be contested before a competent court and sets out the offences and penalties in relation to the election of that chief or councillor. The enactment would also allow first nations to withdraw from the regime by adopting a written code that sets out the rules regarding the election of members of their council.

Although the Liberal Party is very supportive of what was the intent of the bill, we will be moving amendments that would remove the part that is so offensive to first nations in terms of, yet again, the paternalistic approach—father knows best—of the minister being able to impose this on what was intended to be a purely opt-in piece of legislation.

Although we will support the bill, and again we agree with the choice to adopt an improved election process over that contained within the Indian Act, we insist that Parliament must ensure that Bill S-6 does not give the Minister of Aboriginal Affairs new powers that go against the opt-in nature of this legislation.

For first nations that currently hold elections under the Indian Act, this opt-in legislation contains many improvements to the election process, including extending the term of office for chiefs and council from two to four years and removing the involvement of the minister and the department in the appeals process in setting out offences and penalties for corrupt and fraudulent activities.

However, given the opt-in nature of Bill S-6, it is unacceptable that the Conservatives have included a clause that introduces a new power for the minister to compel first nations currently under their own custom election code to go under the elections process established in the bill. The Assembly of First Nations calls this “inappropriate use of federal legislation”.

Further, rather than creating a new independent and impartial first nations elections appeals body, the government chose instead to refer the appeals process to the court system, which might prevent first nation citizens from bringing forward legitimate appeals, as the cost of going to court could be prohibitive.

While the bill is largely based on consultations with first nations, the Conservatives have included elements that were not supported during the consultations and have refused to remove or amend the offending sections. Yet again, the government has no idea what consultation means. Consultation means we go out and ask the questions and actually listen to the answers.

Consultation does not mean an information session, just dictating “take it or leave it” and then not coming back with the amendments or some evidence that we had heard what was said.

It is clear that no first nations, even the first nations who brought the idea of this bill to government, are in favour of these two paragraphs in clause 3 that give this unprecedented power to the minister.

As we said before, Bill S-6 is largely based on the outcome of a consultation process conducted by the Assembly of Manitoba Chiefs and the Atlantic Policy Congress of First Nations Chiefs, which resulted in the publication of the discussion paper, “Improving the System for First Nations Elections”, in October 2010.

The discussion paper identified problems with the election provisions under the Indian Act. There are 240 first nations in Canada that hold elections under the Indian Act electoral systems, 341 first nations that hold elections under their community or custom election code and 36 first nations that currently select their leaders under self-government agreements.

Bill S-6 would allow first nations under the Indian Act system or custom codes to opt in to the proposed legislation through a band council resolution.

The AMC-APC discussion paper identifies several reasons why there should be another option for first nations that wish to leave the outdated Indian Act system.

The term of office for elected chiefs and councils under the Indian Act is only two years, which places communities in a continual state of electioneering and undermines long-term planning.

The mail-in ballot is prone to abuse.

The appeals process to the Minister of Aboriginal Affairs and Northern Development is paternalistic and complicated and often takes too long to produce findings and a final ruling.

The absence of defined election offences and associated penalties, like those in the Canada Elections Act, allows alleged cheating and activities like selling and buying of votes to go unpunished.

The AMC-APC discussion paper made suggestions to remedy these concerns, which are included in Bill S-6: namely, the term of office is increased to four years; the mail-in ballot system is improved; the minister is removed from the appeals process; and new election offences and penalties are prescribed.

In addition to these concerns, the discussion paper as well as the May 2010 report by the Senate committee on aboriginal peoples, “First Nations Elections: The Choice Is Inherently Theirs”, suggested that a new and independent impartial elections appeal body be established to provide culturally appropriate and cost-effective appeals.

The government chose instead to refer the appeals process to the court system, which might prevent first nations citizens from bringing forward legitimate appeals, as the cost of going to court could be prohibitive. It appears that this is simply a transfer of costs related to appeals from the department to individual first nations citizens.

The Senate committee's observations on Bill S-6 also noted that, “...the proposed approach may not practically address the need for an expeditious and culturally appropriate appeals process”.

Bill S-6 is an optional piece of legislation and is clearly preferable for first nations that are dissatisfied with the current Indian Act system but have decided not to enter in a community or custom election code.

However, the bill as currently written, provides in paragraph 3(1)(b) the Minister of Aboriginal Affairs and Northern Development with explicit powers to bring first nations currently under the Indian Act system or a custom code under Bill S-6 if:

the Minister is satisfied that a protracted leadership dispute has significantly compromised governance of that First Nation;

Paragraph 3(1)(b) is deeply problematic for two reasons. First, it would give the minister new powers to place first nations, which are currently under custom code, under the new first nations election act, despite the fact that under current legislation the minister has no power to intervene in custom code first nations without a formal request from the first nation or a court order. The minister does have similar powers under the Indian Act, but not related to custom code first nations.

Second, the terms “protracted leadership dispute” and “significantly compromised governance” are not defined in the legislation. Paragraph 3(1)(b) should be amended to define these terms and clarify that paragraph 3(1)(b) does not apply to custom code first nations, which should retain the ability to choose if and when they wish to enter into new legislation.

I would recommend to the government and to the minister to read what happened in the Senate. Here on this side we are blessed to have senators who do extraordinarily good work. I commend to the government the six reasons as stated by Senator Lillian Dyck in her speech in the Senate as to why this bill needs to be amended.

She gives six reasons. The first is that no one agreed with these measures, except for the Department of Indian Affairs. The second is that it is unconstitutional; third, the minister gains new powers; fourth, there are better ways to intervene; fifth, there is no guarantee that the minister would not use the clause inappropriately; and sixth, it is just not the right thing to do in the 21st century, when we are trying to have first nations communities build capacity to develop their own custom code elections.

In her speech, Senator Dyck went on to quote from the organizations that had provided the genesis for this bill and explained that both the regional first nations organizations, the Assembly of Manitoba Chiefs and the Atlantic Policy Conference, who were the instigators of this legislation, were asked only for opt-in provisions with regard to paragraph 3(1)(b). She quotes Chief Nepinak of the Assembly of Manitoba Chiefs, who stated:

If I may, I would agree with a recommendation that 3(1)(b) and (c) be severed from the legislation. I agree with your characterization of these provisions to be reflective of a time that has come and gone, a paternalistic approach to management of the relationships within our communities.

She went on then to quote Mr. John Paul of the Atlantic Policy Conference, stating:

Imposing the will on a community externally has consequences. We have learned over the years that if anyone imposes their will upon communities, they are very negative about that kind of stuff.

Then she went on to quote Chief Jody Wilson-Raybould of the Assembly of First Nations, saying:

Unfortunately, the power set out in subclauses 3(1)(b) and (c) of this proposed bill . . . is actually an example of an inappropriate use of federal legislation, an inappropriate use of federal legislation I referred to at the First Nation-Crown gathering. These provisions essentially give the minister the ability to impose core governance rules on a First Nation, which, if ever used, would be resented by that First Nation, would not be seen as legitimate in the eyes of that nation, and would probably add fuel to an already burning fire.

Dr. Dyck then went on to quote the witness from the Canadian Bar Association, who stated that that clause should:

...explicitly exclude First Nations with self-government agreements and First Nations that are currently operating under customary systems of governance, unless their consent is obtained in accordance with either their customary practices or, in the absence thereof, by a double majority vote.

Witnesses from the Assembly of First Nations, she says, as well as the Assembly of Manitoba Chiefs and Chief Cook-Searson from Saskatchewan, all thought that paragraph 3(1)(b) should be deleted from the bill. The message was very clear: paragraph 3(1)(b) should be deleted because it is unacceptable practice in the 21st century and because without excluding the first nations operating under custom code elections, the bill goes beyond the scope of opt-in legislation for first nations under the Indian Act.

Dr. Dyck then went on to her second reason to delete the clause: its unconstitutionality.

She again quoted the witness from the Canadian Bar Association, who said that application of paragraph 3(1)(b) to first nations with customary systems of governance potentially infringes on constitutionally protected rights of self-governance. The witness stated:

Allowing the minister to prescribe a form of election for First Nations that currently operate in accordance with customary elections would represent a significant interference with protected rights of self-government.

She went on to quote the witness, who stated that:

The broad discretion afforded to the minister to include participating First Nations could then impact on constitutionally protected rights and international legal principles.

Dr. Dyck then went on:

In addition, while the government officials stated that the minister has ordered a new election only three times in First Nation elections in the last 10 years, and while they insisted that the minister would only do so in rare circumstances, such an action would be a continuation of archaic colonial practices and is completely contrary to the inherent right of First Nations to govern themselves.

She stated she felt that:

Granting such legislative power to the minister of AAND is particularly troublesome coming right after the Crown-First Nation accord in January, where National Chief Atleo urged the government to "re-invigorate the original relationships that were based on mutual recognition, sharing, and trust" and reset the agenda.

Dr. Dyck talked about the third reason to delete paragraph 3(1)(b), explaining again that new powers under the custom code first nations through this clause are unacceptable. She said:

There are 341 First Nations that operate under custom election codes. If Bill S-6 passes, the minister would be able to intervene in any protracted leadership disputes they may have, and such intervention would supersede the voluntary Custom Election Dispute Resolution Policy.

That is the policy that is now in practice.

Her fourth reason to delete paragraph 3(1)(b) was that:

...there are better ways to intervene in prolonged election disputes. AANDC witnesses stated it was necessary to order such First Nations to hold Bill S-6 type elections because in Indian Act elections there are no provisions defining election offences or setting penalties for such offences. However, this could be remedied simply by amending the Indian Act to contain the same provisions as in Bill S-6 that outline the offences and penalties. If the minister then orders an Indian Act election for a First Nation that operates under custom code, the Indian Act election would have the same offences and penalties as under Bill S-6.

The fifth reason Dr. Dyck cited was that:

...there is no guarantee that the minister will not use clause 3(1)(b) inappropriately. The department argues that First Nations can trust the minister not to use this clause inappropriately because the minister of AANDC has intervened only three times in the past 10 years; however, there is no guarantee that this will hold true in the future.

As we know, there is very little trust between first nations and the government at this time.

It is concerning to Dr. Dyck, as she has said:

For example, as pressure mounts to increase natural resource development on or near First Nation land, there is great potential for significant dissension, and as First Nation communities, provincial governments and private sector organizations try to negotiate agreements, there likely will be protracted leadership disputes in First Nation communities.

Her sixth reason was that it is simply not the right thing to do in the 21st century. I quote her closing. She said:

Honourable senators, please let us do the right thing, let us do the honourable thing: Let us pass an amendment to delete clause 3(1)(b). I outlined six reasons why we should do this. First Nations deserve our support in amending Bill S-6 to delete clause 3(1)(b). Please, honour their request.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Mr. Speaker, I was listening intently to the member for St. Paul's and I just want to clarify something that she said.

She said the bill is very specific as to the conditions under which a minister may bring a first nation under the act without its consent. It states that the minister may do so if satisfied that a “protracted leadership dispute” has “significantly compromised governance” of that first nation.

The power under the Indian Act has only been exercised three times, as she mentioned, for the purpose of addressing a governance dispute. In each case, the minister exercised his power after reasonable efforts to reach a community-based solution had been exhausted.

Does the member not feel that the minister makes every opportunity available to the first nation to ensure that it has exhausted every option to try to resolve it from within before the minister gets involved?