Debates of the Senate  
2nd Session, 41st Parliament, Volume 149, Issue 35
  Wednesday, February 12, 2014
Speech: Bill C-16: Sioux Valley Dakota Nation Governance Act
Honourable senators, I rise today to speak to Bill C-16, the Sioux Valley Dakota Nation Governance Bill. I intend to make my remarks brief, as the sponsor, Senator Nancy Greene Raine, spoke in great detail about the process and benefits of this self-government agreement. As we know, this bill has had great support from the three parties in the other place, and in fact, the whole bill was dealt with in one day by means of a ways and means motion. It passed very quickly through the other place.

Senator Day: By means of not looking at it.

Senator Dyck: We'll come to that. Good point.

During the last session of Parliament, we had before us the Yale Treaty Act for consideration and passage. What I like to do when I get a bill such as this, is compare it to the other self-governing bills that we have had. I looked at what happened with the Yale First Nation, and then I looked at the bill that we passed some years ago pertaining to the Maa-nulth First Nation. I went back to the bill kits, compared the table of contents between those two versus what we have before us today, Bill C-16, the Sioux Valley Dakota Nation. You can see very quickly that this bill is much simpler. The content of the agreement in the Yale First Nation legislation has 11 sections. Under the Maa-nulth First Nation legislation, under content of the agreement, there are 13 sections.

If you look at the table of contents for the Sioux Valley Dakota Nation, there is no table of contents. There is nothing that says what the contents of the agreement are.

That's because this agreement basically sets out a governance agreement and also sets out a tripartite agreement between the Government of Canada, the Province of Manitoba and the Sioux Valley Dakota Nation.

Now, I have gone through the bill, and it seems to me that as of yet the Manitoba government has not actually signed on, so that will be a question that will come before the committee when we deal with the bill there.

There are a number of outstanding issues. If you look at the bill, basically it sets up self-governance, and the intention mostly is to deal with land and taxation, which of course we all know is important to economic development, and certainly the sponsor pointed that out. It's a move toward self-governance and economic development.

Typically in self-governing agreements we also have contents that deal with things like education and child welfare. Senator Watt could tell us all the things that go with self-government. Those have yet to be developed and have yet to come into play. In fact, many of the bylaws have yet to come into play. This is just the beginning.

Nonetheless, it has taken decades for the agreement to reach this stage. The process started in 1988 with the Sioux Valley Dakota Nation deciding that it wanted to proceed, and then it has gone step by step to get where we are and I want to put into the record some of the major milestones. As I said, it began in 1988, and in 1991 the framework agreement was signed by the Sioux Valley Dakota Nation and the Government of Canada. Ten years later, in 2001, there was an agreement in principle by the Sioux Valley Dakota Nation and Canada, and an agreement in principle for the tripartite agreement by the Sioux Valley Dakota Nation, Canada and the Province of Manitoba.

This was ratified by the Sioux Valley Dakota Nation in October 2012, and then, as I said before, in December 2013 the bill was introduced into the House of Commons. It passed in one day and is before us now. This is where we're at in terms of the process.

The Sioux Valley Dakota Nation bill is a self-government agreement, not a treaty. Nonetheless, we are part of the parliamentary oversight of an important step within the emergence of self-governance for First Nations. Typically, as we know, these agreements arrive at the Senate at the end of the approval process. I believe that no senator, regardless of political affiliation whether Conservative, Liberal, Progressive Conservative or independent wants to stand in the way of self-governance. I don't think the intention is to in any way delay it, because it's been in the making for decades, agreements have been signed, lawyers have been hired and all of the i's should have been dotted and the t's crossed, and we'll get to that later.

As I said, this agreement is a self-government agreement without any attached land claim. Most senators should know that the majority of self-governing First Nations in Canada achieved their self-government through land claim agreements, but this is not the case here. As such, if you compare the three bills that I mentioned, the Yale, the Maa-nulth and the Sioux Valley legislation, the first thing you will see is a big difference in the preambles.

Let's go to what is said. Both the Yale and the Maa-nulth agreements say:

Whereas the Constitution Act, 1982 recognizes and affirms the existing aboriginal and treaty rights of the aboriginal peoples of Canada . . .

Whereas the reconciliation between the prior presence of aboriginal peoples and the assertion of sovereignty by the Crown is of significant social and economic importance to Canadians;

Whereas Canadian courts have stated that this reconciliation is best achieved through negotiation . . .

Those phrases are not present in the proposed Sioux Valley Dakota Nation governance act. Why is that important? Because that means section 35 rights are not included as part of this agreement. I would be interested to hear why they have been left out. I'm not saying it's wrong; I just would like to know the background. I suspect that part of it is because the Dakota First Nations were not party to the treaty-making process on the Prairies. There has been ongoing litigation by a number of Dakota and Lakota First Nations on the Prairies. The Sioux Valley Dakota apparently were in litigation with the government and have dropped their case. Part of that may be one of the reasons why the section 35 rights are not protected within this bill.

We will get clarification when the bill goes to committee as to why those rights are not definitively articulated within the bill.

This agreement does not touch on land issues itself, except that it does have an annex of provisions of the Indian Act that relate to land that the Sioux Valley Dakota Nation will no longer be under. The agreement basically takes them out from under land-use provisions of the archaic and paternalistic Indian Act, as our sponsor said. Many nations have been trying to get out from under the Indian Act. This bill removes the Sioux Valley Dakota Nation from under those provisions, and that's not a bad thing.

When I first went through the bill, I didn't notice where it removed itself from the elections or governance act. I am sure the Dakota Nation will tell us that when this bill gets to committee, and where the Indian Act provisions are with regard to elections and self-governance. I'm sure we'll get that information when the bill goes to committee.

The governance agreement, which is really the primary part of the act so far, recognizes the Sioux Valley Dakota Oyate Government. It sets out its jurisdiction and the government-to- government relationship that it will hold with the Government of Canada and the Government of Manitoba. I would like to reiterate again that we will probably get clarification as to how this agreement will deal with future negotiations related to section 35 rights of the Sioux Valley Dakota Nation.

That will be one important area. I've already mentioned that typically these section 35 rights are mentioned in the preamble to set that out, right up front, to say that Aboriginal treaty rights are protected.

As I said before, the bill before us is a product of more than 20 years of close negotiations between the Sioux Valley Dakota Nation, the Government of Canada and the Government of Manitoba, and it will be interesting to see what the various parties have to say about the process that it took in order to get to where they are.

It will also be interesting to see how the Government of Manitoba intends to come into an agreement with them with regard to things like child welfare and education those things that are normally under provincial jurisdiction. We all know that typically First Nations fall between the Government of Canada and the provincial laws. It will be interesting to see how they have worked out those differences or how they will work out those differences in terms of which laws will be followed and who will provide the funding.

Our honourable colleague Senator Watt raised some concerns with regard to the funding attached to this bill. One section of the bill kit talks about financial management. According to the bill kit, on the day the agreement comes into effect, Canada will provide one-time funding in the amount of $700,000 to support the Sioux Valley Dakota Nation with its start-up costs. Canada will provide ongoing funding in the amount of $11 million for the delivery of agreed-upon programs and services of $2.5 million for the structured operation of the Sioux Valley Dakota Oyate First Nation.

That's what it says in the bill kit with regard to financing, but the financing for things typically covered by the provincial government I am sure will be explained to us when it is examined in committee.

As I said, we are in the final stages here, and I would like to congratulate the Sioux Valley Dakota Nation. I'm sure they must've gotten frustrated, having worked on this for more than 20 years. It's very good that they've come to this place where we can see the end coming and where the bill will be enacted.

I presume that the bill will go to the Standing Senate Committee on Aboriginal Peoples. We have had a number of experiences, over the years, dealing with these self-governing agreements.

I mentioned the milestones that were reached. There are several outstanding questions that I have outlined with regard to provincial interplay within this bill.

In Senator Greene Raine's speech, she talked glowingly about the bill, and I think it is a really good step. To my mind, it's not a huge step because it's still dealing, basically, with governance and land. There are still many outstanding issues to be resolved.

She also suggested that we should use this as a template. If you look at all of our self-governing agreements, they all pretty much follow the same template. It is the same language, like in the preamble. Compare one to the other. The lawyers in the crowd will say, "We figured it out once. We know what we want. Why should we redo it?" It's a good idea, but here is where we earn our keep, senators.

If you read this bill, it has clearly used a template the Yale First Nation Final Agreement. As I was reading through it, I discovered it says "Yale First Nation" in many spots. Now that is an error, for sure. I first looked at it and saw three mentions of "Yale First Nation." This is not dealing with Yale First Nation at all; this is dealing with the Sioux Valley Dakota Nation.

Senator Mercer: Sloppy work.

Senator Dyck: I saw three references to Yale First Nation. I looked back just now, and I saw five references to Yale First Nation.

An Hon. Senator: Look again.

Senator Dyck: I'd better not look anymore. I'm pretty sure it's not mentioned in the title. There you go; that earned our keep as senators, right?

Some Hon. Senators: Hear, hear!

Senator Day: Well done.

An Hon. Senator: Sober second thought, yes.

Senator Dyck: That's right.

That's the danger of templates. Even the lawyers, who don't come cheap, missed it. Under changes to the Privacy Act and Access to Information Act, it says "Yale;" it does not say Sioux Valley Dakota Nation. Right away, we have to make some changes right there, in the French version as well as the English version.

I look forward to reviewing this in committee because there will be some outstanding questions. There will be interesting discussions, and I'm sure the lawyers will be sitting there with their red faces. I hope that we will be asking for a bit of a refund on the charge. Thank you.

Some Hon. Senators: Hear, hear!

The Hon. the Acting Speaker: Are honourable senators ready for the question?

An Hon. Senator: Senator Watt has a question.

Hon. Charlie Watt: Honourable senators, if there is time to ask a question of Senator Dyck on a point that she raised? Am I permitted to ask questions?

The Hon. the Acting Speaker: Yes.

[Editor's Note: Senator Watt spoke in Inuktitut.]

Senator Watt: I'll translate that quickly, because I don't intend to speak all the way through to Inuktitut. I could, but you might not be able to understand.

An Hon. Senator: For sure we won't.

Senator Watt: I'm sure some of you will.

Honourable senators, this is a very interesting topic that Senator Dyck has raised. Not too long ago, with regard to the concept of self-government, we had to go through a referendum solely because the Government of Canada and the governments of the provinces decided that maybe we should test out whether a new concept could be recognized by the Aboriginal groups. We ended up having a referendum on the particular question that she just raised. Yet, self-government is going to turn out to be stand- alone self-government, not taking into consideration what is anticipated within section 35, and they are not going to make it. I would even go as far as to say that it is unconstitutional if you do that.

It seems like we have a lot of work to do at the committee level, not only in trying to rectify that matter. Also, from what I understand, you are talking about an empty shell. There's nothing in it. It is a letter of intent. Why don't they call it a letter of intent instead of calling it an agreement if it is not complete but still subject to further development down the road, encompassing and bringing the Province of Quebec, the First Nation and the federal government to rectify the problem of two jurisdiction levels? They have no choice; they have to go through that avenue.

On top of that, have you seen, aside from what you have highlighted in terms of the funds that have been made available, any implementation funds, any appropriation that is being put aside for when they have to deal with a bigger picture involving the provincial government, the First Nation and the federal government? Is there any money for that?

Senator Dyck: Thank you, Senator Watt. You always ask such good questions. Your wisdom here is very much appreciated. In fact, I can't answer most of your questions because they should mostly be directed to the partners in the agreement.

As to section 35, you may well be right. I don't know what the answer there is, whether it is constitutional or not.

Letters of intent are also a question. If it is not fully implemented now, then that is a question for the witnesses.

With regard to implementation funds, offhand, within the information that we have, I don't see anything with regard to that. I think that would be a very important question to ask them with regard to what they see coming down in the future.

My understanding from looking at it is that the Sioux Valley Dakota Nation is anticipating that, with their removal from under the land provisions of the Indian Act and with some taxation that they will be able to then implement, it will be an economic driver.

With regard to the other questions, I guess we'll have to ask them to see if there is a tradeoff. Did they give up something in order to get that? Thank you for those questions.