As chairman of our Lands Advisory Board, I thank you, Mr. Chairman and honourable members of the committee, for providing me time to respond to Mr. Clarke's private member's bill, Bill .
In preparation for today, I've had the opportunity to review the comments made by Mr. Rob Clarke on Tuesday, March 19, as well as comments from other groups appearing before you. Those groups include the Native Women's Association of Canada, the First Nations Financial Management Board, the BC of Assembly of First Nations, and the Canadian Bar Association.
I want to particularly commend to you the evidence of Regional Chief Jody Wilson-Raybould, who, in addition to her other duties and services to first nations, sits as director of the Lands Advisory Board. The distinction she draws between the provisions of Bill that repeal and amend archaic, dated, and even offensive provisions of the Indian Act on the one hand and the post-colonial amendments and additions on the other hand are very telling. You will recall that she has opposed what might be called the “modernizing provisions” of Bill because they would impose burdens on first nations and because they do not present options. In that, we join her.
As first nations identify their own priorities and governance strategies, they need options to pursue their individual goals and aspirations.
Everyone is not moving on the same issues at the same time, at the same speed, in the same way, or aiming for the same result. The Lands Advisory Board and the first nations who have become signatories to the Framework Agreement on First Nation Land Management have set their own course, and that course takes us outside the Indian Act and affords us the option of truly governing our reserve lands and resources. This has become an attractive option to many first nations, both those who have signed the framework agreement and many more who have signalled their desire to become signatories. Where we see real progress in governance in our case and similar progress on other fronts, we find options, not the heavy hand of Parliament prescribing one fix for all first nations.
Mr. Clarke, I have read your answers to the committee's questions. I certainly understand and appreciate what you are attempting to accomplish on behalf of aboriginal peoples.
I would like to quote a statement made by Mr. Clarke to the committee:
||I truly believe there's a consensus to replace the act. The real questions are, how should that happen, and what will replace it?
For years, many first nations leaders as well as the Government of Canada have said the Indian Act must be replaced. Mr. Clarke, you have made an attempt to turn words into action. Along with my colleagues, I commend you for your initiative. However, I sincerely believe that your intent would be more successfully realized if your proposals presented options for first nations rather than having them imposed. I say this based on the success that the Framework Agreement on First Nation Land Management and the ratifying document, the First Nation Land Management Act, has achieved.
Currently, 72 first nations are signatories to the framework agreement; 39 first nations have already enacted their land codes; 30 first nations are in the active development stage, preparing the land codes to be put to a community vote; 68 other first nations are on a waiting list. Canada has already committed to adding 25 new signatories during the next two years. The Lands Advisory Board is very appreciative of this support from Canada. Make no mistake, we could not have achieved the success we have without that support in our process, including significant financial support to first nations.
One of the key factors to the success of this historic first nations-led initiative is the fact that the process to assume jurisdiction and control over reserve lands is optional. All of our first nations have pursued or are pursuing jurisdiction over reserve lands and resources because they choose to pursue it. They think it is right for them and their communities to make the ultimate decision on whether to ratify the framework agreement and enact a land code.
The framework initiative began in the early 1990s with a small group of nine first nations. We were frustrated with the restrictive and outdated land-related provisions of the Indian Act. The decision-maker was the minister, not the community and not the chief and council. This was true whether the issue was the allotment of a certificate of possession, the issue of a permit to access or use reserve lands, or recommending a designation for leasing to the Governor in Council. It was tedious, it was cumbersome, it was time-consuming, and it wasn't working for our communities.
Over a period of years, we developed a well thought out and acceptable approach to removing these obstacles put in our way by the Indian Act. We tirelessly pursued discussions with Canada, with the provinces, with MPs of all political parties, and with first nations organizations such as the Assembly of First Nations. We consulted with numerous first nations across the country. The important point here is consultation: listening to and getting acceptance from our first nations people. Our group now includes approximately one-fifth, or 20%, of all first nations in Canada as either signatories to the framework agreement or those waiting to become signatories.
Mr. Clarke has also stated that “The true intent of the Bill is to create and aid freedom and independence for first nations.” If that is indeed the intent, then create options, and make sure those options are real options in the sense that there are resources for independent first nations to be able, realistically, to select them.
Many witnesses have cited the example in Bill of the new process for enactment of bylaws that impose new burdens and responsibilities on first nations in terms of developing laws and publishing them. But it is not funded—not the development of bylaws, not the publication of bylaws, not the enforcement of bylaws, and not the legal defence of them if they are challenged.
There are optional alternatives to what Bill proposes. These alternatives exist now, are led by first nations, adhere to the requirement for consultation, are supported by Canada in partnership with first nations, and permit first nations to achieve what Mr. Clarke says he wants them to be able to do.
There is, as one alternative available, full self-government, which is what my community, the Westbank First Nation of British Columbia, opted to pursue and which we achieved. There is also in B.C. a second alternative, the treaty process, which is what the Tsawwassen First Nation of British Columbia has followed to a conclusion. I am happy to note that both my community and Tsawwassen had enacted land codes first. Elsewhere, we see framework agreements for education gaining a foothold in some regions. They are not universally popular, but they are optional.
On the economic front, there are several pieces of legislation that address first nations taxing powers, economic development, harmonizations of laws, and first nations borrowing for community purposes. First nations must choose to take up any of those options; they are not imposed. One significant alternative is a first nations land code under the framework agreement that provides for law-making procedures, publication of laws, conflict-of-interest guidelines, the sale of animals and crops, seizure of goods, and levy of fines, with the moneys going to the first nation.
Mr. Clarke has also stated to the committee, and I quote:
||...I want to amend the bylaws, to empower first nations to form their own bylaws. ...I'm trying to repeal outdated sections of the Indian Act.
||What I'm trying to do is provide a solution for first nations, and I'm asking what their solutions would be.
The framework agreement is a workable and successful option that accomplishes all of what Mr. Clarke is seeking to achieve, and it accomplishes this based on the timing and priorities of the communities themselves and on their own free choice.
Mr. Clarke is a champion of our peoples. If Mr. Clarke would like to champion a cause, may I suggest that he urge Canada to make the framework agreement available to the other four-fifths, or 80%, of first nations who have not yet been given the opportunity to become signatories to the framework agreement.
Mr. Chairman, honourable members, thank you for your kind attention.
I, along with my colleagues, am certainly prepared to answer any questions the committee may have.
I can give you the best example that has worked by eliminating certain sections of the act, I believe 35 sections in total. That I refer to is the first nations land management process, the framework agreement.
For first nations who have opted into that legislation, it has provided for the elimination of the archaic—what we refer to as outdated—and the modernization of really what has to happen. That was taking jurisdiction and control of decision-making for laws, for how we are to deal with reserve lands and resources, and putting it into our perspective as a self-governing process.
So that portion of the Indian Act has in fact changed, but it has taken time to implement. When one goes through that process, it's certainly of benefit to know that it can happen, and it should happen.
To have a holistic, complete change of the Indian Act in its entirety takes very careful consideration. There are still very supported provisions in the existing Indian Act that perhaps should not be tinkered with. I only suggest that to you because they're seen as benefits to first nations.
I think it has to involve true consultation and true support. To have legislation completely changed without that support, without that consultation and direct involvement, I think would be the wrong process.
I think there are also other approaches that have to be considered. The Indian Act applies to first nations across the nation, all 634. But we already have agreements in place.
I'm going to speak particularly about the numbered treaties.
We have long-standing agreements with Canada—in fact, the crown. There are other treaties, pre-Confederation treaties, and there is new treaty-making, at least in British Columbia, if not in other areas.
We have to recognize, at least with the numbered treaties, that there are agreements. We have a treaty with the crown. Rather than amending the Indian Act, which will still apply to first nations all across the country, whether they are numbered treaty, non-treaty, or pre-Confederation.... What we have to examine here, particularly with the numbered treaties, is treaty implementation of those existing agreements.
We have agreements. In the numbered treaties, we don't need any further agreements. We have to implement those 11 treaty agreements. I think we have to look at different approaches, not one approach to once again satisfy all. The Indian Act has never done that; it will never do that. And we're trying to do the same thing again.
Yes. To summarize it as clearly as I can, it goes back quite a number of years, to the process of the lands, reserves, and trusts review of the Indian Act, and the opportunity that led the government of the day to listen to us, as community chiefs, as first nations chiefs, to say what needed to be changed. When we did that, when we consulted with one another and seriously considered it, we noted that it could not happen with amendments to the Indian Act.
What has to happen, in our view, particularly if you're dealing with lands and resources.... It has to be the first nation. The first nation must be empowered with self-governance. The Indian Act doesn't do that. The Indian Act is a process, one of delegated authority. That is what's wrong with the existing Indian Act.
For many first nations, it will take time to develop that capacity. For us, involved in the land management process and in land codes being developed, it was that complete support, unanimous support, that let us know changes had to be made to the Indian Act. It was knowing that we collectively felt we had to have the self-governing inherent rights recognized for us as communities, as leaders of the communities, and as first nations collectively.
That is the process I think that has to work. Making amendments, or changes, to legislation like the Indian Act in itself I don't think is the way to go. It has to reflect full self-governance, and there are all kinds of studies all over North America that back up this statement.
I have to begin by apologizing that somehow your testimony is immediately before the hour of clause-by-clause. It's not the way Parliament is supposed to work. We should always have time, I think, to deliberate on wise testimony before we move into the process of deciding.
I also feel that what you've advised us, in terms of listening to the regional chief and explaining the proper way to go forward, makes the bill unacceptable, because it really is a job for first nations to lead the process to replace the Indian Act, with true consultation with all your people. You could then propose legislation that the government could then accept or negotiate, but it should come from first nations.
In the regional chief's testimony she advised that although well intentioned, the government's persistence in this is going to cause problems and have unintended consequences. This bill, because of the lack of consultation, is deeply flawed, and in terms of process it is unacceptable.
We have talked about whether private members legislation should actually have to meet a test of duty to consult or free, prior, and informed consent before it can be tabled, in the same way that we can't table things that cost money under private members legislation. Maybe we need a different test here in Parliament as to what is acceptable, or not acceptable, as private members business.
In the regional chief's testimony, she suggested that seeing that it's quite clear the government is going to pass this bill—they have the arithmetic to put it through—clauses 2, 3, 4, 5, 7, 10, and 13 should all be deleted, or that we should vote down those clauses.
I'm not sure what the government is going to do. They've obviously heard that the wills and estates part is really a mess. We'll see what the government does.
Could you explain the issue of special reserves, and how the ability to create special reserves would be removed, that the provision...? They say these are provisions only of historical importance, but it seems to be an area that has not been well thought through.
Can you explain a little bit more to us about why the regional chief suggested that clause should be removed?
I don't know that I can add much to what Chief Louie has said, at least not as succinctly.
The special reserves go back to the earliest federal legislation, transferring lands that had been vested in commissioners, in Quebec, and in the maritime provinces. There were institutions like the Anti-Slavery and Aborigines' Protection Society and church institutions like the New England Company that held lands on behalf of Indians.
Over the years, most, if not all, have been converted to a federal title that would conform to the Indian Act. I don't guarantee that all of them have, and I don't guarantee that all of the conversions were smooth. Oka, a principal example, went to the Privy Council in 1912.
In any event, as Chief Louie said, because of the way clause 6 is worded in the bill, we would put in a new section, 36.1. That would continue the application of the Indian Act to special reserves as they exist prior to passage of this, but not after.
As Chief Louise described, the B.C. courts say that you can't have a special reserve, or create one, without the consent of the crown. The implication is that you can create a special reserve if the crown consents, or if perhaps two crowns consent, which may be an option, for economic development or other purposes. That is real, and it's in the act today. This has never been followed up, never been pursued. Still, it's worthy of consideration, worthy of study. Without that study, why kill it?
I think that's the analysis we've done.
Thank you, Mr. Chair, and my thanks to the witnesses for coming in.
It's been a long haul to come this far, especially getting in at 10 p.m.
When I started this journey to look at the Indian Act...being first nations, and being born under the Indian Act, I think I can speak with first-hand knowledge. I always hear the opposition being critical, but they have never lived under the Indian Act. It's people like me, who were born under the Indian Act, who can speak with some clarity of the differences the Indian Act draws between the non-aboriginal and the aboriginal.
Chief Louie, I look at the Indian Act, and one of the things that currently isn't in it is a process that will compel the government to review the Indian Act on a yearly basis. There's nothing there.
I feel, as a first nations individual, that what the Indian Act really does is maintain the status quo. That's how I feel about the Indian Act: it promotes the status quo. There are countless studies out there, but we always come back to the same thing, the status quo.
With your first nations, Chief Louie, you led the charge. I remember years ago going to Westbank. I remember the trailers. Playing on the reserve as a child, where there was nothing, I remember seeing a person's vision to take that forward.
We hear all the opposition. Some have provided amendments, some haven't, but we're maintaining the status quo. I'm hoping to see amendments to my private member's bill that will improve the lives of first nations overall, through trade and self-governance. A lot of first nations communities don't have the capacity to look at their bylaws or to get ministerial approval. When you were last at the committee, and when we visited your community last year, you spoke about how the chiefs and council have a responsibility to answer to their band members, and you said this is something the Indian Act doesn't specifically provide for.
This bill has certain provisions, like the bylaw section, that are meant to empower grassroots members and to promote transparency. One of these provisions requires bands to publish their bylaws and make them accessible to band members. The intention of the section was to ensure that those affected by bylaws are aware of, and have access to, those bylaws.
It has been raised that requiring the band to provide a copy of the bylaw only to members of the band could be problematic, as bylaws affect all those living in the community, and your community has many non-band members living in it.
What is your thought on a possible amendment requiring a bylaw to be given to any person who requires one, as opposed to only members of the band?
There's so much to say and so much to do.
My history was in municipal government in the Northwest Territories. I was a mayor. I was president of the Northwest Territories Association of Communities. I remember when the Government of the Northwest Territories wanted to change municipal ordinances. I remember the process, and the respectful process they had to engage in to do that.
I sit here at this table and I wonder what is going on. We were creatures of the territorial government. Municipal governments are creatures of territorial government; they don't have constitutional status in this country. Yet the process was four or five years long. There was enormous consultation, with each community being addressed individually. The associations were asked to present in front of the legislative assembly. I did that myself on those issues.
I look at this and I wonder what is going on in this country.
You are governments. You have treaties with Canada. This is a process, a private member's bill brought forward by a well-intentioned individual, where the communities are being affected. You're taking away their...it's as simple as saying the right to legislate intoxicants on reserves. That alone should have gone to every single community for comment, because every single reserve may have a position on that.
I'm flabbergasted, the more I deal with this process. That's why I asked, what is the process? How do we go to treaty implementation? How do we actually come to grips with the relationship? I throw that out to you as the last question on the order paper I think on this particular bill. We're going to begin clause-by-clause after that.
That's where I'm at right now in my mind, so I'd appreciate your comments.
The proposed amendment would require first nations to publish bylaws in only one medium as they consider appropriate. This will provide first nations with the ability to choose which method of publication—for example, first nations website, First Nations Gazette, or newspaper—is most suitable for the community. The requirement to publish in all three mediums may place a financial burden on first nations.
The proposed amendment would ensure that publication requirements for first nations bylaws are similar to those for other levels of government and would guarantee unhindered access to first nations bylaws by anyone who may be subject to their application, enforcement, and adjudication. The issues of notification and accessibility to bylaws and their importance have been raised several times by the Standing Joint Committee for the Scrutiny of Regulations. Guaranteed accessibility is of crucial importance, not only to those who are subject to enforcement and eventual adjudication under the bylaws, but also to first nations' successful prosecution of alleged offenders.
This amendment provides for an explicit level of procedural fairness to those individuals who are subject to the application of the bylaws. As well, continued access to the bylaws while they remain in force is important to law enforcement representatives who may be responsible for enforcing them. It provides access to all individuals who are subject to enforcement and provides legal counsel and adjudications with access to the purposes of prosecuting or defending an alleged bylaw violation and/or deciding whether an individual contravened the provisions of a bylaw. Bylaws apply to any person on a reserve, not just to band members.
The proposed amendment would also clarify the manner in which a bylaw would be enacted under the Indian Act and when it would come into force. It would provide first nations with the discretion to provide an alternate coming into force date, something that is currently not available under sections 81 and 85.1 of the Indian Act.
Finally, the amendment maintains the existing numbering in the Indian Act. Since the new text replaces existing section 86, a new section 86.1 is not needed.