Debates of June 17th, 2013

First Nations Elections Act

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Mr. Speaker, I listened carefully to my colleague's speech, but I have some concerns. It was very clear from my discussions and my hon. colleague from Nanaimo—Cowichan's interventions with first nations people that not every community acknowledges or buys into what the Conservatives are putting forward. There are legitimate concerns.

I am wondering if the member could advise the House as to what degree the government is willing to acknowledge those concerns and sit down with first nations to resolve issues that affect communities across this country.

[Blake Richards, Conservative, Wild Rose, AB]

Mr. Speaker, I think the member has missed a very key component of this legislation, and that is the fact that this is an opt-in system. It is an opportunity for those first nations that choose to participate in this alternative method. As I outlined in my speech, there are a number of different ways.

Certainly there are about 40% of bands that participate under the current Indian Act process. There are a larger number of reserves which have community election codes. However, this is an opportunity for those first nations that wish to have another alternative. It removes the minister from the appeals process. It gives an opportunity for those willing first nations that want to opt into this type of a process with an opportunity to do just that.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Mr. Speaker, my colleague across has spoken about the need to incrementally wean ourselves from the Indian Act. I am in favour of getting rid of the Indian Act now, biting the bullet and making all the necessary changes that we need to do. Why is there this incremental approach? Why is it going to be stretched over possibly decades, as opposed to attacking this situation which is unacceptable now and going much further than what is being proposed?

[Blake Richards, Conservative, Wild Rose, AB]

Mr. Speaker, in response to the member's question, I should point to something I mentioned in my speech. It was a quote from the Prime Minister, who basically said that we cannot take the tree, remove it and blow up the stump because it would leave a big hole. We are moving in steps and creating opportunities and options for first nations governments that choose to do so. Whether it would be looking at new opportunities for economic development creation on reserves through changes to the land management reserves, or whether they would be able to opt into another alternative for elections processes, we would get to where we need to be in an orderly and coherent fashion. I believe that is the approach we need to take.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Mr. Speaker, one of the methods that can be used to determine whether or not a band wants to opt in is a referendum.

Would the member please explain to this House what possible drawbacks there might be to that method?

[Blake Richards, Conservative, Wild Rose, AB]

Mr. Speaker, any time that citizens have an opportunity to make their own choices about their government, obviously that is always something we want to see. I believe that opportunity would be welcomed by first nations members all across this country.

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

Mr. Speaker, although we certainly support the four-year election term under this legislation, there are a number of other parts of the legislation that are ill-defined. We have to look to other instances where people cannot trust what is in legislation. I look to the Truth and Reconciliation Commission and its ongoing dispute with the government over relevant documents.

In this piece of legislation, clause 41 sets out the regulation process. This regulation process is important because it covers the appointment, powers, duties and removal of electoral officers and deputy electoral officers, the manner of identifying electors of a participating first nations and so on. There are a number of very important clauses that regulations would define.

Nowhere in this piece of legislation is the process outlined by which first nations will be included in the development of regulations. At least in Bill S-8, the clean drinking water bill, in the preamble it said “working with first nations”. However, it does not say that anywhere in this act.

I wonder if the member could address specifically how first nations would be included in the development of regulations.

[Blake Richards, Conservative, Wild Rose, AB]

Mr. Speaker, I will once again remind the NDP member that this is an opt-in process for those bands which choose to do so.

I was glad to hear the hon. member mention in her comments that the NDP support the idea of the four-year terms. The instability created by short two-year terms of office can be problematic for first nations communities.

I wonder if the NDP also supports some of the other things that the bill would fix. With regard to the lack of rigour in the process to nominate candidates, often frivolous nominations are invited, making for excessively long slates of candidates. There have sometimes been over 100 candidates for positions. Does the NDP support the removal of the paternalistic elections appeals process that involves the department and affords decision-making powers to the minister?

The system now is vulnerable to abuse and to fraudulent activities because of the absence of defined offences and associated penalties that act as a deterrent. I would certainly hope that the NDP is supportive of those measures in the bill—

[The Acting Speaker, Conservative, Bruce Stanton]

Questions and comments, the hon. member for Edmonton Centre.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Speaker, a few things that have come up that I think are key are the willingness to opt in and the incremental versus do-it-all-now approach.

I would ask my colleague about the power of the example that might be set by willing and progressive first nations to those who are not quite so enthusiastic or perhaps not so progressive. Such an example could speed up the process that may start as incremental. It might pick up speed if there were good examples presented by those who are willing and progressive enough to adopt this program.

[Blake Richards, Conservative, Wild Rose, AB]

Mr. Speaker, that is a great question and it hits on a very key aspect. Certainly with regard to this incremental approach we are doing as far as working toward changes that would help improve conditions and create new opportunities for those in first nations communities, I would look at things like the changes to land management. There is a number of first nations communities which are very excited about the potential economic developments that could occur there. It would mean jobs for members in first nations communities, which would mean improvements. When we look at some of the more progressive first nations that have taken some of these opportunities and worked toward economic development initiatives, there are some great success stories.

The member is right in saying that those kinds of opportunities, when they are taken, and the examples of the success stories that are out there, would incite and encourage other first nations to follow in those footsteps. I believe that is where the opportunities would be for improvements of the lives of those in first nations communities.

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

Mr. Speaker, I wonder how the Conservatives feel about some of the alleged legal difficulties of one of their former candidates when they are talking about selection of candidates.

The former chief of Lac La Ronge Indian Band, Tammy Cook-Searson, raised some concerns with regard to the process of first nations being forced into courts whenever there is a dispute around the electoral process. I wonder if the member could comment on the fact that this act does not specifically allow for either an independent tribunal or an electoral commission, similar to what federal and provincial governments have in place.

[Blake Richards, Conservative, Wild Rose, AB]

Mr. Speaker, what this in fact does is to take the paternalistic parts of an election appeal out of the process.

It takes those decision-making powers away from the minister and the Governor in Council. Those changes are a very key aspect of the bill. I would remind the member of that, and certainly hope there is support from that side on the issue as well.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Mr. Speaker, to begin, I would like to say that I will be sharing my time with the member for Windsor West.

We are looking at the election and term of office of chiefs and councillors of certain first nations, with emphasis on the word “certain”. I will be speaking to my own reality at the 52nd parallel and that of the five Innu and Naskapi communities in my riding.

A debate on the election and term of office of chiefs and councillors of certain first nations is an appropriate time for sharing realities that Canadians still know nothing about. I should say that it was honourable of the government to include the notion of corrupt practice in connection with elections when drafting this bill. It gives us an opportunity to discuss the notions of influence peddling, lobbying, conflict of interest and financial wrongdoing. I will therefore be making reference to those notions.

Over the past two years of my current term, I have shared with Canadians some realities that are far too often ignored. The truth is that the national media and the media in general have an editorial policy that means that the public does not hear about certain first nations realities. One reason is that the issues are restricted to reserves, another is that there is an agenda dictating the kind of news that is reported about Indian reserves.

In my speech today, I will make Canadians aware of the financial and political wrongdoing that is found on certain reserves. More often than not, the key players involved are off the reserves and outside the clan dynamic. As always, I will speak to my own reality.

I have mentioned this many times before, but far too often, shysters lurk around Indian reserves, including all kinds of lawyers, professionals, anthropologists and all kinds of people claiming to be “first nation specialists”. This is seen most often on Indian reserves that are rich in natural resources, because resource extraction is a very lucrative business. In fact, keeping Indian reserves at a certain cultural, social and educational level allows the work to be done in obscurity and with impunity. That is why there is political interference during the election of the chief and councillors.

As a lawyer and a member of Parliament, my services have been requested many times over the past few years. People have told me about situations involving influence peddling and wrongdoing in connection with band council elections. My reputation as a whistleblower has probably reached certain isolated communities because I have had to deal with several dozen of these cases recently, including in my own community.

It seems there was some interference by mining companies during the last tribal election at home. Currently, at the 52nd parallel, "extractivist" measures are being introduced. In other words, natural resource extraction is perceived as the only driver of economic development. The mining companies and various lobbies are putting their pawns in place in the band councils. That is why some community members have gradually distanced themselves from democratic life on reserve and even nationally.

People in the communities are disillusioned, and voter turnout for democratic elections on reserves is very low. I proved that wrong when I was elected, since 4,000 Indians voted for me. Many of them had never voted before. I had to get out there. People likely felt I had integrity because of my reputation and my youth. That is why people voted for me, and I think I represent them well here.

Although the situations I have repeatedly denounced in my speeches are not generalized, I will focus on my own reality and talk about the reserves in my riding. Because I saw these issues come up in both my legal and political experience, I would like to talk about the harmful socio-political effect they can have on tribal life.

I said that first nations members have no interest in or choose not to participate in democratic measures. The Conservatives often say that they conducted a consultation and that only 15 people showed up. I have heard that a lot. Even before the Conservatives that was often the easy answer. They would say that very few Indians showed up, so why should they invest all that money to go meet 15 people?

That is the reality. Few people show up because they are disillusioned. Some people have gradually become disinterested as a result of repeated abuse over generations, wrongdoing and the lack of transparency in tribal politics. It exists in Canada too; we preach by example.

Although this bill contains some interesting measures, we also need an independent process to investigate, challenge and question the government's tribal measures. This will require investigative powers and the necessary personnel. Since reserves tend to be tough to penetrate, this will take some specialized individuals.

When I met with Indian Affairs officials to discuss this bill, they told me that, ultimately, it would be up to the RCMP to conduct investigations on the reserves and to track down those who commit abuses. Knowing full well that the RCMP is already overstretched and that this is a rather specialized field because of the closed nature of Indian reserves, it is my humble opinion that the RCMP will have to be granted supplementary funding and that some staff will have to be assigned exclusively to this matter, not only for elections on reserves, but also for economic abuses in the broader sense, because there are some.

The succession of statutory measures drafted and unilaterally introduced by this government during the current mandate shows how important it is for people to be involved in and contribute to the democratic process in this country. I am going to talk about the importance of that. In fact, citizen assertiveness, by Indians and Canadian citizens as a whole, is viewed as a barrier to economic expansion. That is why the Conservatives are currently taking every back-door measure possible to ensure that the public is ultimately not consulted. When you consult people, they have the opportunity to agree with a project or to oppose it. I am well aware that the Conservatives fear public opposition and mobilization more than anything else. That is why no effort has been put into the census to truly seek the public's opinion.

The same type of reasoning applies to aboriginal issues because aboriginal assertiveness is also perceived as a barrier to economic expansion. That is deplorable and utterly reprehensible. The true barrier to economic expansion is not citizen assertiveness, but rather a lack of transparency. If people were transparent, there would be no reluctance to consult the public.

Although the bill before us provides for the codification of offences and penalties under which charges may be laid and penalties imposed for any fraudulent activity related to elections, it is apparent from my discussions with the various stakeholders and legal experts in this matter—and there are a lot of them—that they are unclear about what entity will have investigative authority and about the actual scope of the coercive power that will then be exercised. I was briefly told that the courts could hear this matter at trial, but more user-friendly measures that are more tailored to first nations will be necessary. More user-friendly measures will be needed so that people can finally share their opinions and speak out against the abuses, particularly given the literacy problems as I understand them and see them on a daily basis in my community.

This is a major investigative task. At the risk of repeating myself, substantial funding will have to be allocated. Staff will have to be assigned exclusively to this case if we ultimately want the RCMP to investigate it.

Lastly, although the bill addresses certain aspects in a way that suggests an improvement in the first nations electoral system, it does not directly address the Indian Act. Under the proposed provisions, the minister would be able to determine the future of a band without consultation, for a change, which violates the principle of self-government.

I will now let the House absorb all that.

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

Mr. Speaker, I want to thank the member for that speech. I know he was pointing to some challenges in first nation communities with elections. However, we know in Canada that in the last federal election there were a number of challenges for Canadians, with low voter turnout, robocalls and some MPs being under investigation for allegedly not following the Elections Canada spending rules.

With regard to first nations, this piece of legislation would only provide for courts as a remedy. There would be no provision in this piece of legislation to have an independent tribunal or a commission, like Elections Canada, for first nations.

I wonder if he would comment on the fact that for many first nations the cost would be prohibitive if they have to end up in courts to dispute elections rather than having that independent process.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Mr. Speaker, I thank my colleague for her question.

I mentioned more user-friendly methods. Ultimately, our critic in this area obviously has a clearer idea than I of the form that will take.

We will really need a kind of parallel tribunal assigned exclusively to aboriginal matters, not simply election-related issues. Too often I mention the idea of puppet governments. I know perfectly well that pawns are put in power on reserves by lobbies, but also by the governments that have succeeded one another here and that always make sure they choose who they deal with. That is probably why, even though this bill addresses some essential concepts, it nevertheless transfers responsibility to the law courts.

That may be off-putting for some, particularly considering the burden of proof associated with it and all the subtleties of the legal system in this country. Some first nations members might view all this as an obstacle to the exercise of their most basic rights.

I submit all that to you.

[Steven Fletcher, Conservative, Minister of State (Transport)]

Mr. Speaker, I have noticed a pattern with the official opposition. That is that those members seem to oppose all the reforms we are trying to bring forward, from what we are talking about today to matrimonial rights for first nations women and children.

It just seems that the NDP is opposing for the sake of opposing and is not being very helpful in working with the government to come up with solutions. Perhaps the member can explain how his party's members could possibly have voted against the matrimonial rights bill, and it seems as if they are going to vote against this one too.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Mr. Speaker, I thank my colleague for his question.

I gave the government credit at the outset when I mentioned that it had included fraudulent election-related activities. Coming from the government, I think that is a major step forward and I therefore congratulate it today.

The current situation is also as follows: we have to be consistent with the position expressed by many stakeholders in the field, many organizations that work with aboriginal communities. They say there is too much government interference under this particular bill. However, we have suggested potential solutions that can be introduced on third reading. There could be an amendment, and everyone would be happy; I would be pleased to support it, provided certain problems are identified and certain comments that have been made are taken into account.

The problem is that the concept of consultation is being disregarded and the government is not seeking the first nations' consent before unilaterally imposing legislation on them, which is highly reprehensible. However, the government has nevertheless made progress with this bill, and I give it credit for that; it is now on the right track. It should therefore continue on this path, and I will be here to support it.

[Brian Masse, NDP, Windsor West, ON]

Mr. Speaker, I am pleased to rise to contribute to the debate about this issue. It is a very important one for our aboriginal and first nations peoples.

One of the first things I thought about is my good friend who passed away, Earl Scofield, who was a senator. He flew 17 missions in a turret during the Second World War and later on came back to Canada, where he contributed not only socially but politically. He was involved as a founding New Democrat and also contributed many volunteer hours across the community, as a veteran and also as a citizen in our community. I could not help but think about some of the lessons he taught me about inclusion, the importance of listening at times and at times making sure to take the advice of others. Sadly, the government has not done that.

I thought about my own community and its relationship with the aboriginal communities in actually founding this country. There was Chief Tecumseh, who assisted Sir Isaac Brock of the British forces in defeating General Hull in Michigan to ensure our country would be born. There was co-operation. At that time it led to quite a significant quote by Sir Isaac Brock. Talking about Chief Tecumseh, he said, “A more sagacious or a more gallant warrior does not, I believe, exist”. That showed the level of developed maturity and relationship of trust that was created there.

It is important to talk a bit about process and then get into the bill. It is interesting that we have the unelected, unaccountable Senate as the kick-start to the bill, none of whose members has the same type of accountability as those in the House do and as others who are elected in the country do. That is unfortunate because often when bills come through the House it allows the elected body to move the bill through the proper process and channels.

In the past in this Parliament, closure has been moved many times and committees have been moved shorter than would allow for what could be done in terms of analysis. Bill S-6 is now going through this process. That is rather unfortunate.

It was interesting as well that one of the members on the government side said the government has introduced Bill S-6 for this, and meanwhile other bills that have been passed in this chamber, such as Bill C-290, the sports betting bill, languish in the Senate. It was passed with unanimous consent in this House, as no members decided to rise during any of the process to oppose it, to force a vote. It went unanimously to the Senate and it still sits there today. It seems we have our processes backed up and backwards. It is important if the House ever wants to get back on track that we look at those issues and a more balanced approach to processing legislation.

Bill S-6 would create an election cycle longer than two years. That is something important. One of the things we heard was that, when there is a controversy or contestation of an election, a two-year turnaround time is not enough because it could take that amount of time to actually do a full-out investigation. As my colleague pointed out, with the limited resources of the RCMP and the technical nature of these types of investigations, they could take a long time and be very burdensome.

Therefore, moving to the four-year element is something we could support. It has also been something consistent with other types of democracies. For example, in recent years city councils in Ontario moved from a three-year cycle to a four-year cycle, giving extra time for governance. That is important because with the turnover that can take place and the types and intensities of campaigns, they can be quite a distraction from actually getting some of the work done that needs to be done.

I point south of the border, where some of the U.S. elections are held every two years. I know from congress and senate that some of those that are on a two-year cycle for governance are literally fundraising constantly for their campaigns. Therefore, moving to the four-year cycle is something that could provide some greater stability and some improvements, and it is something we do support.

There would also be the ability to have a common election date, giving the minister of aboriginal affairs the power to order the first nations with community-designed elections to adhere to new regimes. It would also provide for election appeals through courts rather than through the department of aboriginal affairs. There would also be penalties for breaking election rules, and penalties are important.

First nations initially supported the bill, but here is the catching point. They asked for some amendments related specifically to the opt-in and other amendments as well. They have decided they cannot universally support the bill now.

The bill is just the beginning of what needs to be changed in the Indian Act.

I want to touch on the three election methods. The first is an election according to the provisions of the Indian Act. I will get into the problems later. The second is a community-designed or custom election whereby a first nation is allowed to adopt its own rules for an election rather than follow the Indian Act provisions if it has always been recognized by the federal government as selecting leaders by custom or if it submits written codes, approved by the majority of band members, for the approval of the department. Last is according to the provisions of a self-government agreement. Therefore, three different styles of elections that can take place.

The first, which was enacted under the original Indian Act, has caused several problems over the years on a wide range of social and justice issues that I cannot even get into, given their degree. They have gone on for many years.

The Indian Act displaces first nations' traditional political cultures and political systems. It actually intervenes in some of the existing cultural systems that have been in place, thus undermining them.

The Indian Act created the two-year election cycle. As I noted, and I think it is important, a two-year election cycle is not a lot of time for members and their councils to work together to create good governing environments. Having four years would be a benefit to all.

As well, right now, the minister and the Governor in Council have a significant degree of power over a first nation's elections and governance structures, including being able to determine the size of the council. It is critical that band councils have more flexibility with regard to the size of the governance structure they want. This is done in other governing systems, whether it be the House of Commons or in municipalities in Ontario. Again, the size can be worked on by the government.

The appeals process is lengthy and lacks rigour. As well, there are a number of other issues for which the Indian Act has not been a proficient and effective way of having these types of relationships.

The Assembly of Manitoba Chiefs is opposed to this and have asked for the opt-in process to be changed. Here I would quote Aimée Craft, chair of the national aboriginal law section of the Canadian Bar Association:

[D]ealing with the level of ministerial discretion to include First Nations in the schedule of participating First Nations, this changes the opt-in nature of the legislation. It continues minister discretion to exercise control over First Nations governance and it would result in some First Nations being subjects of the act rather than participants. In addition, the bill lacks clarity as to the standard that the minister will apply in making determinations about what constitutes a protracted leadership dispute that has significantly compromised the governance of a First Nation.

To conclude, it is important to go back to the fact that the Conservative government has not done its due diligence on the inclusion of the aboriginal organizations and first nations that are affected by this act. We have heard from my colleague on the lack of outreach and the fact that it is very difficult to pull people out to meetings, because the trust is not there, the confidence that something will get done is not there, and the actions taken that would affect members of first nations and their families will not be in their best interests. We cannot blame that situation for the evolution that has taken place over a number of years and different circumstances.

I want to thank our critic on this issue for the very important work that has been done. The Indian Act needs extensive work. This type of half-effort is not sufficient for our partners out there who feel that they would like to have some changes. I hope the amendments called for can take place so that we can have more support and buy-in from those affected.

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

Mr. Speaker, I want to thank the member for Windsor West for his comments. One of those comments was on the fact that the bill, like many of the other bills that impact on aboriginal issues, originated in the Senate. Of course, as the member pointed out, it is unelected and unaccountable.

One of the previous members talked about wanting this piece of legislation to ensure a sound, open and transparent process for elections in first nations communities. Of course, what we have recently seen on the Canadian electoral scene is that many Canadians feel that the last federal election, in particular, was not sound, not transparent and not accountable.

I wonder if the member could comment on the difference in accountability first nations would be held to, because they do not have access to an independent tribunal or electoral commission whereas Canadians in the federal and provincial systems do have an electoral commission. I wonder if he could talk about the difference he sees.

[Brian Masse, NDP, Windsor West, ON]

Mr. Speaker, the reality is that with this piece of legislation, the minister and the Governor in Council would still have far too much power compared to us, who at least have the Chief Electoral Officer who can bring some public accountability to cases.

We have had a number of situations that have taken place that need to be pointed out. We had the robocalls in the last election. We had a member in the House who overspent prior to his election. He had to go back to the people, and he lost his seat. Now we have other Conservative members, in the same situation, who are in a fight with the Chief Electoral Officer.

At least there is that process we can appeal to, and at least there is that process Canadians have, under law, that will be taken up.

[Steven Fletcher, Conservative, Minister of State (Transport)]

Mr. Speaker, I am amazed that the NDP members seem to oppose for the sake of opposing.

There is a recognition that there are positive items in this bill. It is an opt-in situation. However, the NDP members oppose it. They oppose matrimonial rights, and if they had their druthers, they would deny rights to aboriginal women that every other woman in the country has. They always fall on the issue of process.

However, is not right right? Sometimes are things not just self-evident and we can move forward, such as having equal rights among all Canadians?

[Brian Masse, NDP, Windsor West, ON]

Mr. Speaker, I think the difference is that we listened. We listened and we acted according to what we were being advised. That is the difference. There is nothing amazing about listening and then trying to find a common solution, at the end of the day. That is the difference. If we can actually find that common solution and work to get to that ground, we will have better legislation for all of us. We listened.

[Robert Aubin, NDP, Trois-Rivières, QC]

Mr. Speaker, I thank my colleague for his speech.

I would like him to comment on something. From what I understand, as a bill evolves, it usually improves. It should be better and enjoy increasingly broad support. Yet, it seems that even though first nations were at first quite supportive of this bill, this is no longer true of the latest version we have before us. Apparently they also suggested a number of amendments but struggled to be heard.

Are aboriginal communities now suffering the same fate as the parliamentary committees on the Hill, namely lack of attention, no consultation, and the total dismissal of any proposed amendments to improve the bill?

[Brian Masse, NDP, Windsor West, ON]

Mr. Speaker, that is a great question from my friend and colleague.

The reality is that if we look at the omnibus budget bills that have had legislation in them, they have not had proper study. I would point to the Investment Canada Act, which for the third time is being changed in a budget bill, because it has been botched so many times because it has not gone to the committee properly. It has not gone through the due diligence process.

There is common ground we could work on. That is the whole point of bringing in experts and bringing in people to help work on legislation. Even on my own private member's bills I have done that. When we brought in people on my right to repair bill, it made it better.