Hon. Lillian Eva Dyck:
Honourable senators, I rise today to speak at second reading of Bill C-9, the proposed "First Nations Elections Act." This bill is not a new bill; a previous iteration titled Bill S-6 was introduced in the Senate on December 6, 2011, and it was passed by the Senate on April 24, 2012. Bill S-6 died on the Order Paper in the other place when Parliament was prorogued on September 13, 2013. It was then re-introduced in the other place under the title Bill C-9 on October 29, 2013. It passed third reading on December 10, 2013, and is now before the Senate again for consideration and study — unchanged despite a serious major concern that was raised in both houses.
I spoke in this chamber at third reading of this bill's predecessor, Bill S-6, on April 3, 2012, and zeroed in on the major flaw in the bill: paragraph 3(1)(b), which states that:
The Minister may, by order, add the name of a First Nation to the schedule if
(b) the Minister is satisfied that a protracted leadership dispute has significantly compromised governance of that First Nation....
This clause grants the Minister of Aboriginal Affairs and Northern Development Canada the power to order a First Nation to come under the provisions of the bill in cases where he or she has made a negative judgment about the functional viability of the elected leaders of an individual First Nation community.
During our committee study of the predecessor bill, Bill S-6, the majority of First Nation witnesses — Assembly of First Nations, the Assembly of Manitoba Chiefs, the Lac La Ronge Indian Band and the Canadian Bar Association — asked us to delete paragraph 3(1)(b). Even Chief Paul from the Atlantic Policy Congress, which was instrumental in the initiation of the bill, saw that this clause was bad. Chief Paul stated that:
... imposing an external will on a community has consequences. We have learned over the years that if anyone imposes their will upon them, communities are very negative about that kind of stuff.
Two years ago, our committee struggled with this issue and, in the end, though an amendment to delete this troublesome clause was defeated, we attached observations to the bill to express our concerns.
I will read into the record excerpts from those observations to the fourth report of the Standing Senate Committee on Aboriginal Peoples, tabled on March 13, 2012.
Point No. 3:
Some observers have expressed concern that sections 3(1) (b) and 3(1)(c) of Bill S-6 grant additional powers to the Minister. The Minister and his officials argue that they restrict the powers the Minister already possesses under the Indian Act. In any case, it is the view of the Committee that these powers, whether exercised under the Indian Act or under Bill S-6, continue a colonial and paternalistic approach to First Nations governance. Sections 3(1)(b) and 3(1)(c) should only be used in the rarest of cases when every other form of dispute resolution or democratic reform at the First Nation level has been attempted and has failed.
I was reminded a few days ago of what was said during our discussions two years ago about deleting paragraph 3(1)(b). It was said that "this issue was not the hill to die on." In other words, it wasn't important enough. I don't know why some people can't see that having a minister have power over your elected leadership is a big and important problem. I don't know how they can continue to deny the inherent right of Aboriginal peoples to govern themselves. Clause 3(1)(b) clearly contravenes section 35 Aboriginal rights. This clause is paternalistic and rooted firmly in an archaic colonial mindset. I wish I could convince members opposite to see this clause through a First Nations lens.
Honourable senators, the impact of clause 3(1)(b) was minimized by messaging from the minister and the department on this bill. The media release and the bill kit information stated that the bill is optional. That's true. However, Bill C-9 also allows the minister to order a First Nation to come under its provisions, but there was no explicit mention of that aspect of the bill.
During the study of Bill C-9 in the other place, Minister Valcourt stated in his opening remarks that the ministerial power to intervene in Indian Act elections:
... is paternalistic and frankly not a business I think that the minister should be in. This bill would remove the minister from the equation and ensure that appeals are dealt with by the courts...
That sounds fine, but at the same time, the bill actually legislates the use of ministerial power to order a First Nation to come under the bill's provisions. Clause 3(1)(b) puts the minister right back in the business, a business that by his own words he thinks is "paternalistic." In fact, it's not only paternalistic, it's also unconstitutional.
Honourable senators, the previous minister, John Duncan, made similar comments two years ago. He stated that he wanted out of being in charge of Indian Act election disputes, but at the same time he did not want to give up the power to order a First Nation with a governance problem to hold a Bill C-9 election. While both ministers say they think they shouldn't have the power to intervene in First Nation elections, both still support the inclusion in this bill of that very same power. In other words, both ministers say one thing but do another.
If the goal is to remove the minister from resolving election disputes and let the courts handle potential disputes, there is no need for the minister to have such authority. The courts already do handle custom code election disputes. Why does the minister need to involve himself in custom code elections?
Honourable senators, I am genuinely puzzled as to why the government has steadfastly refused to amend Bill C-9 by deleting clause 3(1)(b) and thereby not give the minister the power to order a First Nation to come under its provisions. This refusal denies the validity and seriousness of the requests from the majority of witnesses to do so. Furthermore, such a deletion would have no negative impact on those First Nations who are eager to see this bill passed into law. One can only speculate as to why the minister still wants to hang on to the power to force a First Nation to come under Bill C-9.
So, let me speculate. Most people would probably not see it as a problem for the minister to order a First Nation that holds elections under the Indian Act to come under Bill C-9 because the provisions under Bill C-9 are better. However, when it comes to First Nations who hold custom code elections, the situation is different because these First Nations have developed electoral processes that are better than Indian Act elections and they have even been approved by the Department of Aboriginal Affairs and Northern Development.
These custom code First Nations are seen to have moved away from the Indian Act, and election disputes are settled by an alternative dispute resolution policy or by the courts, but not by the minister. So normally the minister is not supposed to intervene in the governance of custom code First Nations.
However, clause 3(1)(b) of Bill C-9 gives the minister legislative power to intervene in custom code election disputes. Leadership disputes are integral to the democratic process and may be intensified as First Nation communities, provincial governments and private sector organizations interested in resource development, such as the Northern Gateway pipeline, try to reach agreements. The federal government is not neutral. It has its own vested interests, which might be at odds with those of a particular First Nation, and so one could speculate that the minister may feel inclined to order an election in hopes of finding more compatible First Nation leadership when there appear to be delays or disputes in settling resource development disputes between industry, First Nations and other levels of government.
Honourable senators, in testimony to the Aboriginal Peoples Committee, the director general of the governance branch of Aboriginal Affairs and Northern Development Canada stated that:
The types of disputes that would qualify under this wording —
That's referring to clause 3(1)(b).
— are those where competing factions in the community claim to be the legitimate government, causing the Government of Canada, the provinces, the private sector and community members themselves not to know who the legitimate leaders of the First Nation really are.
So perhaps my speculation is not so far-fetched after all.
Honourable senators, clause 3(1)(b) is unconstitutional. It also undermines the good intentions of the bill and undermines the recently improved Canada-AFN relationship. I still think clause 3(1)(b) should be deleted. Over the last few years, we have had a number of bills affecting First Nations, such as the matrimonial real property bill, the safe drinking water bill and this one, First Nation elections. All of them contain unwanted provisions that threaten and weaken First Nation autonomy.
Yet, perhaps there is a shift. The Prime Minister's announcement in Lethbridge just a few weeks ago about the proposed First Nation education act indicated that the concerns of First Nation leaders now are being heard and consequently there were promises of increased funding for First Nation education in two years' time and promises of First Nation control of First Nation education. This is welcome news.
In keeping with this renewed Canada-AFN relationship, I am hoping that this good will prevail and that the minister will agree to relinquish his power to impose Bill C-9 on any First Nation through application of clause 3(1)(b).
One final aspect of clause 3(1)(b) that I think is important to note and that has not been discussed previously is the vagueness of this clause compared to the other well-articulated provisions in the bill. For example, clauses 30 to 35 of Bill C-9 deal with contested elections, situations that certainly could comprise leadership dispute. There are six clauses that outline how to deal with contested election situations. This is in marked contrast to the single clause, 3(1)(b), which simply states the minister can impose this bill on a First Nation when there has been a protracted leadership dispute that has significantly compromised governance.
These two critically important phrases — "protracted leadership dispute" and "significantly compromised governance" — are not defined in the bill. There are no definitions anywhere that spell out more clearly what these phrases mean. The situation is so vague that it is not even certain that "leadership dispute" is restricted to disputes over an election result, such as when there are only a few votes between competing candidates. "Leadership dispute" could be interpreted as meaning a dispute between chief and council members over any order of business.
Similarly, the phrase "significantly compromised governance" is wide open to a myriad of interpretations. Frankly, I have no idea what that phrase means. Is it, as speculated earlier in my speech, when a community is wrestling with an important issue like resource development on their lands and trying to come to a decision with respect to divergent views?
There are no accompanying regulations that would outline the conditions for when and how the minister could order a First Nation to come under Bill C-9, and there is no guarantee that such regulations would be co-developed with First Nations.
In looking at the clause of the bill that deals with regulation development, clause 41, there is no mention of developing regulations to define or set parameters on the use of the power indicated in paragraph 3(1)(b). There is no promise to work with First Nations such as there was in the Safe Drinking Water for First Nations Act. In that bill, a paragraph in the preamble confirms that the Government of Canada is "committed to working with First Nations to develop proposals for regulations to be made under this Act." A similar paragraph should also be inserted into Bill C-9.
Honourable senators, in today's renewed Canada-AFN relationship, I hope that the Aboriginal Peoples Committee will recommend that definitions of "protracted leadership dispute" and "significantly compromised governance" be incorporated into the bill, and that the situations under which the minister can use paragraph 3(1)(b) be described. Perhaps the minister could guarantee that such regulations will be developed in collaboration with the AFN through subclause 41(i), the making of regulations respecting "anything else that by this Act is to be prescribed."
Honourable senators, while the majority of this bill is positive, the inclusion of paragraph 3(1)(b) undermines its good intentions. This clause granting the minister the undefined and unfettered power to order a First Nation to come under Bill C-9 is an unconstitutional anachronism. This clause contravenes the inherent rights of First Nations to govern themselves.
In the new Fair Elections Act, would you support a clause that grants the Prime Minister the power to resolve federal election disputes? No, obviously not. So why would you support granting the Minister of Aboriginal Affairs the power to resolve First Nation election disputes? The situation is analogous. If we pass Bill C-9 unchanged, we will be applying a different standard for First Nation elections. In Canada, I don't think this is acceptable.
Let me conclude by reminding all honourable senators that nearly four years ago, in May 2010, our Standing Senate Committee on Aboriginal Peoples released a report entitled First Nations Elections: The Choice is Inherently Theirs. In our report, we recommended the creation of an independent First Nations electoral and appeals commission to oversee the electoral capacity of First Nations and provide an appeals process independent from the Minister of Aboriginal Affairs.
The minister says he no longer wants to be in the business of intervention in First Nations elections. The simplest solution would be to follow through on the recommendations of our Senate report. In fact, in our 2012 observations, we recommended the creation of a First Nations elections institution, saying that it was something that needed to be followed up on.
There is no jurisdiction or any need for paragraph 3(1)(b) to allow the minister to continue to have control of First Nations communities undergoing leadership disputes of any kind.
I still do not support this bill as it now stands and would highly recommend that we try to incorporate some changes to delete the ministerial power.
Hon. Joan Fraser (Deputy Leader of the Opposition): Would Senator Dyck take a question?
Senator Dyck: Yes.
Senator Fraser: I congratulate you not only on a well- researched speech but also one that was extremely informative, so I thank you. I haven't done anything like the research on this bill that you have, so I don't know if this question is pertinent: Can you tell me if there's a non-derogation clause in it?
Senator Dyck: No, there is not a non-derogation clause. I don't think there would be in this kind of bill. Often at the top, there's something talking about the fact that it won't take away from non-derogation of Aboriginal rights. I don't think there is here, and I don't have a copy with me to look and see.
Senator Fraser: I raise it because, as Senator Patterson reminded us yesterday in his wonderful and eloquent remarks about Senator Watt, this has been a passion of Senator Watt's. When I served on the Legal and Constitutional Affairs Committee, he persuaded us all that it was a legitimate path.
This is one of the things we should watch for in every single bill where it might be even remotely pertinent. If it is not in this one — and you don't think it is needed, then I trust your judgment.
Senator Dyck: My memory may not be perfect.