I believe in my traditional values, one being a first nation person. It's an honour to be here speaking on such a sensitive issue as the Indian Act. Hopefully, once we have finished this meeting today, you will get a better picture of what I'm trying to do.
Mr. Chairman, members of the committee, and guests, I'm honoured to be here today to open the committee's study of my private member's bill,
As a proud member of the Muskeg Lake Cree Nation and a parliamentarian, the opportunity to sponsor a private member's bill comes along very rarely. I was lucky to be picked in a lottery to bring my bill to Parliament and I take this opportunity very seriously. The reason I'm doing this is in fact the reason I got into politics.
I spent almost half my life living and working on reserve. I was born under the Indian Act and no doubt will die under the Indian Act, but I don't want the Indian Act to follow me to my grave.
As a veteran of the RCMP, with over 18 years of service, I spent the majority of my policing career living and policing on reserves. What bothered me was that I had to enforce this 137-year-old Indian Act and saw daily the impact that this antiquated, paternalistic, and racist legislation had on grassroots band members.
As a representative for Desnethé–Missinippi–Churchill River, a riding having almost 23 first nation communities and the second largest first nation population in Canada, I'm very aware of the challenges posed by this outdated, colonial statute we refer to as the Indian Act.
The problems created by this archaic piece of legislation are far reaching, extending to every aspect of our lives as first nations, and are the root causes of the Attawapiskats of our country. Indeed, we heard every single candidate for chief in the 2012 Assembly of First Nations election say that the Indian Act must go. Virtually every leader of first nation communities across Canada said that the Indian Act must go. And experts from across the political spectrum all say that the Indian Act must go.
In a November 9, 2012, interview the current national chief, Shawn Atleo, said:
||Yes, the Indian Act and the Indian Act bureaucracy must be fundamentally and finally eliminated.
The Indian Act is completely contrary to Canadian values and stands in the way of our progress and success as first nations, and has done so for generations. In fact, this legislation treats those of us who live under the Indian Act as second-class citizens.
This legislation was put in place in 1876. It served as the model for South African apartheid, and it really has no place in Canada in 2013 or any other time in our history. It remains a blemish on Canadian society and must be rectified.
Let me talk for a moment about the connection between apartheid and the Indian Act. In an article by South African lawyer, Gary Moore, he sets out the following details:
||In 1913 the young Union of South Africa enacted a native land act. The act prohibited the sale or lease of scheduled areas of land reserved for natives to whites. It prohibited natives from acquiring land outside reserves. Reserve land was mostly Crown land. Natives were left in occupation, and native systems of land tenure continued. In 1936 a Crown corporation was created, the native trust, to purchase additional areas released for native occupation.
||In 1927 South Africa passed an act for native administration generally. It declared the governor-general to be “supreme chief” of natives in most provinces. He had power to appoint and remove chiefs, divide and amalgamate tribes, and punish offenders. His actions as supreme chief were not cognizable by the courts. The act gave the governor-general power to make law by proclamation for native reserves. Proclamations provided for the administrative grant to natives of permission to occupy residential sites and arable allotments in reserve settlements and locations, with restricted tenure and disposal rights.
||The governor-general could make regulations for such purposes “as he may consider necessary for the protection, control, improvement and welfare of the natives, and in furtherance of peace, order and good government”.
||There were special rules and regulations for succession to property of deceased natives. Regulations forbade whites to enter native reserves without a permit. There were regulations restricting the number of shops a native shopkeeper could open in a reserve.
||Native administration was under the minister and department of native affairs. The department was a vast empire in South Africa on its own. A 1951 act provided for tribal authorities each comprising a chief and his council. A 1953 act vested control of native education in the central government.
Does this sound familiar? It should:
||It is said that before South Africa enacted native administration laws it sent officials to Canada to study the reserve system provided for in Canada’s own Indian Act.
However, for all the abuse that South Africa has rightfully had dumped on it because of apartheid, in 1994 that system was finally removed from law. Yet here in Canada the Indian Act, which came well before apartheid, still exists almost 20 years after the demise of apartheid: 20 years.
I must ask the members of this committee, is this the kind of law we wish to see in the books in 2013?
I truly believe there's a consensus to replace the act. The real questions are, how should that happen, and what will replace it?
When I submitted my bill in its first version in December of 2011, I asked for a full repeal of the Indian Act. What I wanted to do was start a serious discussion and debate about getting rid of the act—and here we are today. I believe I've done that, and accomplished that.
In subsequent discussions with first nations leaders and grassroots members, I was told that the wholesale elimination of the act could inflict unintended collateral damage. It could also place fiduciary responsibility on first nations communities unless there was careful consideration of the effects of each and every clause, and of course they want to know what we'd replace it with.
My goal was to ask my first nations leaders and grassroots to engage with the crown to come up with these solutions. In speaking with our first nations leaders and grassroots members, and after three draft versions of the bill, I arrived at the current and fourth version.
I know there are those who question my right to do this. There are even those who have said the entire exercise must be done by indigenous, for indigenous, people. So I agree, and here we are.
As a parliamentarian and an aboriginal person, I've heard repeatedly that I have no right to bring this bill forward like any other parliamentarian.
There are even those who have said:
||I am afraid that a backbencher's private member's bill is not an appropriate consultation for this very serious relationship with first nations in this country.
Well, I believe it's my responsibility to do it. It has to be done. The time has to be now.
I also know that there are some who claim that this bill cannot have been put before the House of Commons without a formal consultation process. Those very same people clearly know that a private member's bill in the House of Commons does not have the financial or human resources for me to conduct a full-scale consultation, nor is it permissible to share a bill with anyone until it is tabled in the House of Commons.
Nonetheless, I have been engaging and reaching out to first nations on the Indian Act for years, and I have seen with my own eyes the harm this legislation has done. Bill is designed to mandate development of a process in which first nations and crown can work together on ways to review, repeal, and replace the Indian Act.
Finally, there are those who have specific concerns about the content of the bill itself. I'm here to say that I'm open to amendments that move us closer to the repeal and replacement of the Indian Act, and I'm also open to amendments that make the bill closer. What I hope to see is an open, frank discussion of this bill that bridges partisanship. For me, it's not about the Conservatives or the Liberals or the NDP, and not about partisan ideology, but about starting a process that could transform the lives of so many first nations people, especially the younger generation.
In addition to the mandate of the Minister of Aboriginal Affairs to produce an annual report on the progress of the repeal and replacement of the Indian Act, in collaboration with first nations, this bill will bring a number of changes to the Indian Act. These changes are housekeeping in nature and are designed to remove the underbrush from the act, but they also speak about the goals of the bill.
The true intent of the Bill is to create and aid freedom and independence for first nations. This is the motivation behind the changes to the bylaw process, wills, and estates sections of the act. These changes will remove the Minister of Aboriginal Affairs from the process and return control of bylaws, wills, and estates to the communities, where they belong.
In addition, a number of sections of the bill remove outdated, antiquated, and unenforced sections of the Indian Act. These sections cause delay. I'm sure we all agree that it's bad policy to leave in these laws and things that there is no intention of ever enforcing.
An example would be the section of the Indian Act that prohibits the sale of agriculture products grown on reserve to anyone off reserve without the permission of an agent of the Minister of Aboriginal Affairs. This section of the act has been waived for a number of years and therefore is not enforced. Imagine a Cree farmer growing corn and not being able to sell his corn without the permission of the Minister of Aboriginal Affairs. It kind of reminds me of a first nations wheat board.
Another section that would be almost as laughable, if it were not so paternalistic and patronizing, is section 92, which prohibits missionaries, aboriginal affairs employees, and reserve teachers from trading with first nations under the Indian Act.
A more insulting and hurtful section of the act is the one that has established residential school systems. My grandparents attended residential schools, so this is very personal to me. I am sure no one here would want to see residential schools again in Canada. A heartfelt apology to aboriginal Canadians who survived the system was made by on behalf of all Canadians and all the other political parties in the House. There is no moral policy or reason to keep this law in the books.
To go back to the two essential questions, they are: how shall we deal with the Indian Act review, repeal, and replacement, and what should be in its place? I can't answer these questions alone. That is why we're here today in committee: to seek these answers. I'm sure we each have our own ideas about what a respectful and modern relationship between first nations and Canada could be, but we have to arrive at a consensus about what this means and what this would look like.
Our people have waited 137 long years for this discussion. It's about time that we take it seriously. It's my hope that this bill will serve as a springboard for engagement. I look forward to this process and answering your questions today as we proceed through the examination of Bill .
Thank you, Mr. Chair.
Thank you, Mr. Clarke, for coming before the committee today.
We would likely agree with you that successive Conservative and Liberal governments have pursued an assimilationist agenda, and I would argue that an assimilationist agenda continues to play out today with the lack of progress on key issues that speak to the honour of the crown, like treaty and comprehensive land claims implementation. So we would agree with you on that point.
When we look at things like the UN Declaration on the Rights of Indigenous Peoples and its article that talks about “free, prior and informed consent”, this gets us to the heart of the matter. A private member's bill, no matter how well intentioned, does not point to the fact that what we are speaking about here is the honour of the crown and the duty to consult.
I want to quote from an article on the Turtle Island Native Network, from June 29, 2012, that notes:
||Advancing Aboriginal policy through private member’s bills raises significant problems with the Crown’s duty to undertake consultation and accommodation on legislative changes that will impact Aboriginal and treaty rights.
I think that's the heart of the criticism that has come forward, that once again we have a bill—in this case a private member's bill—that is taking apart the Indian Act piecemeal. It could have unintended consequences, and I repeat, no matter how well intentioned, it's imposing changes on first nations.
I wonder if you could comment on that specific matter, that first nations have been saying that if the Indian Act is to be taken apart, they must be consulted in advance of proposed changes.
What I'm utilizing right now is the parliamentary process of the committee, including to form a legal consultation with first nations. In my private member's bill, I'm trying to look at mandating first nations to meet on a yearly basis, in consultation with the federal government, to look at a more modern and respectful relationship and dialogue to create a more modern and harmonious act that reflects today's values.
You mentioned the UN declaration, and I'd like to point out that under the UN Declaration on the Rights of Indigenous Peoples, to which Canada became a signatory in 2010, we have the responsibility to uphold the articles established in accordance with the UNDRIP, and to adhere to the requirements.
I'd like to point out that under Article 18,
||Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making....
That's what I'm also doing, through bylaws, letting first nations be self-governing and form their own bylaws without having to have ministerial approval.
Also, Article 19 reads:
||States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
That is also being included in my private member's bill: a yearly review with the minister and first nations, and that's being legislated.
But also, nothing in Bill contravenes any part of the declaration; it legislates a consultation process whereby the minister must report back to the House the progress that has been made in repealing the Indian Act. I have met, and will continue to meet with, willing partners in the process, including the first nations grassroots, chiefs, and organizations.
But the bill also promotes other articles in the UN declaration, which you've pointed out, such as Article 3, which calls for first nations to “...freely pursue their economic, social and cultural development”.
Coming from an RCMP background and actually living and working on first nation reserves, I've seen the social and economic barriers that the Indian Act has placed on first nation communities.
I'm from Muskeg Lake First Nation. I know first-hand, as a first nation citizen and as a law enforcement officer, the kind of barriers this legislation has created for first nations.
One of the most painful things I had to do as an RCMP member was to enforce the Indian Act. I became a bylaw officer. I also became a truancy officer, going into people's residences and asking the parents to take their children to school. We talk about education being very important for first nations, but having to dictate it through the Indian Act isn't the right way to go. I want to see these barriers to success removed.
I remember having to do the enforcement, as an RCMP member, and that's why I'm looking at my private member's bill. One, I want to amend the bylaws, to empower first nations to form their own bylaws. Two, I'm trying to repeal outdated sections of the Indian Act, such as regarding agriculture, individuals who have the right to trade with first nations, and the residential schools clause, so residential schools can't be mandated by the minister or any future governments and don't happen again in Canada.
What I'm also trying to do is set up a legislative process for first nations on a year-to-year basis, consult with the government and look at more modern, respectful language that properly reflects today's society, and start a meaningful dialogue. Currently in the Indian Act there's nothing that requires the federal government to consult with first nations on a year-to-year basis. This is paramount, and hopefully this answers Ms. Crowder's question about consultation. What I'm trying to do is set up a legislative process that will bring the government to the table with the first nations. That's what I expect.
We have grave concerns that this is a job that needs to be done by the . As the Prime Minister promised at the crown-first nations gathering, the government would not repeal or rewrite the Indian Act, and any future changes would be developed with consultation among the government, the provinces, and first nation communities.
Therefore, I am concerned that this is piecemeal. As you know, when the officials came before us, Rob, there were serious flaws with this bill in terms of bands not being able to declare their communities dry, and serious concerns around how wills and estates would be dealt with in Quebec.
Consultation requires sending and receiving. Could you please tell us whom you consulted with and what they said? All we've heard on this side are some serious objections to this bill, including people saying that they wanted to get unanimous consent just to withdraw it and start again, with the at the helm. Could you tell us the dates, also?
Rob, you have to accept that once it has passed second reading and comes to this committee, the ability to make substantial changes to it is very limited by this committee. And that doesn't qualify as full-scale consultation.
Unlike what you said, it is possible to consult on a draft bill. And it is possible to do this properly with any private member's bill, by getting out and actually listening to what people say, as opposed to going out and saying, “This is what I want to do. How do you like it?”
We were very concerned last summer that even when you presented to the FSIN, you refused to take questions from them. It seemed as though you were not in listening mode and that this bill had already been tabled.
So in the order of how we do things as parliamentarians—going out, and in aboriginal-style leadership, by asking, not telling—whom in the first nations community did you hear from? Who wanted you to make these particular changes in this particular manner, rather than it being led by the ?
Thank you very much, Mr. Chair.
We talk about the wills. You mentioned Quebec and the provinces. It's an inconvenience for the provinces for wills and estates. I go back and we talk about the wills of first nation individuals where we have.... Your first nations as well, we all have a treaty card. One of the issues that I had when I joined the RCMP was that I drafted my will not realizing that I had to get ministerial approval.
Back in July 7, 2006, I had a very unfortunate incident, which I don't talk about. It always gets me very emotional. I was in charge of a detachment in Spiritwood Saskatchewan. At 9:24 p.m. I had a very unfortunate announcement that two RCMP officers were fatally shot. What that caused me to do in the aftermath was to review my will. I didn't know I had to get ministerial approval to verify my will. No one else here has to do that. Like I say, I don't want ministerial approval to verify wills, to authenticate them. I don't want the minister to make the decision, if my will is contested by individuals out there, on who gets what.
You talk about Quebec and about provincial systems. I had an uncle, a veteran, and he and his family were arguing in a first nation community about his estate. What they had done, not realizing it, was to go to an attorney, a provincial lawyer, and ask for power of attorney when the provincial lawyer didn't have that right. It had to be the minister making that decision, authenticating or verifying it.
Now we talk about different approaches out there that are currently in the system or the federal government recognizes. There's Cree family law. There's also Algonquin family law that can address wills and estates. However, the Indian Act won't let that happen, so it makes these null and void. But the federal government recognizes Algonquin and Cree family law. I'm hoping that the witnesses coming forward in the future will be able to clarify that.