On the Order:
Resuming debate on the motion of the Honourable Senator Tannas, seconded by the Honourable Senator Batters, for the third reading of Bill C-9, An Act respecting the election and term of office of chiefs and councillors of certain First Nations and the composition of council of those First Nations.
Hon. Lillian Eva Dyck: Honourable senators, before I begin my speech on Bill C-9, I want to say a few words about the notice of motion for time allocation on Bill C-9. I was disappointed that Senator Martin, the Deputy Leader of the Government, presented that notice because it was unnecessary. I gave my word to Senator Patterson, the chair of the committee, and to Senator Tannas, who is the sponsor of the bill. I know that they believed me and that they trusted me. There was no intention on this side in any way to delay passage of the bill. I informed our deputy leader as well. As I said, I had no intentions of creating any delays in passage of this bill, despite its significant shortcomings. There was no need to give this motion.
Although I have been told I shouldn't take this motion personally, it does imply that those of us on this side are trying to delay the bill. It does imply that perhaps you don't trust me, that when I give my word, you don't really believe that I am going to keep it. I think all honourable senators know that when I pledge to do something, I do it, so keep that in mind.
I would note that the members of the Standing Senate Committee on Aboriginal Peoples do have in-depth discussions. We don't always agree, but we do have very good relationships, and what has happened here in the chamber is not reflective of what happens within our committee meetings. I wish that tone of relationship was more prevalent within the chamber as a whole.
To get back to the bill: Honourable senators, I rise today, as promised, to speak at third reading of Bill C-9, the First Nations Elections Bill. As noted by the sponsor, Senator Tannas, and outlined in the report of our committee, Bill C-9 does contain many good provisions such as lengthening the terms of office, establishing penalties for electoral offences, and improving nomination and mail-in ballot procedures. However, as I outlined in my speech at second reading of the bill, there were and still are significant and substantial objections from First Nation witnesses and the Canadian Bar Association to clauses 3(1)(b) and 3(1)(c) of the bill.
Our committee heard witnesses from Aboriginal Affairs and Northern Development Canada and the Department of Justice. We heard Aimée Craft, from the National Aboriginal Law Section of the Canadian Bar Association, from Chief John Paul of the Atlantic Policy Congress, from Chief Ron Evans of the Norway House Cree Nation in Manitoba.
We also invited witnesses from the Assembly of First Nations, the Federation of Saskatchewan Indian Nations, and the Assembly of Manitoba Chiefs, but though they accepted, they were unable to appear for various reasons.
The Confederacy of Treaty 6 First Nations asked to appear and was accepted as a witness but, unfortunately, they also were unable to appear.
We did, however, receive written briefs from the Assembly of First Nations and the Treaty 6 Confederacy. I'll speak about these written briefs later in my speech.
Two organizations, the Atlantic Policy Congress and the Assembly of Manitoba Chiefs, initiated the process to improve Indian Act elections by extending the length of office of chief and council members to four years, and by allowing for the provision of a common election day. The original intent of the bill focused on First Nations who conduct their election under the Indian Act, which only allows for two-year terms of office.
Bill C-9, which is touted as being opt-in legislation, does nevertheless allow the Minister of Aboriginal Affairs and Northern Development Canada, through clause 3(1)(b), to order a First Nation to come under the provisions of this bill. Through this clause, the minister can order a First Nation undergoing a protracted leadership dispute that has significantly compromised their governance to come under the provisions of Bill C-9.
It is important to note that this provision not only applies to those First Nations who conduct Indian Act elections, it also applies to those First Nations who conduct community custom code elections. Custom code elections, which are approved by Aboriginal Affairs and Northern Development Canada, are an improvement over Indian Act elections and generally have terms of office longer than two years.
When we examined this bill two years ago, the department gave conflicting answers as to whether or not First Nations who hold custom code elections could be ordered to come under Bill C-9 and hold this type of election rather than one according to their own custom code electoral provisions.
The extent of the lack of clarity with regard to whether or not First Nations who hold custom code elections could be ordered to come under the provisions of Bill C-9 is perhaps best exemplified by referring to the testimony two weeks ago of Ron Evans, Chief of Norway House First Nation and former Grand Chief of the Assembly of Manitoba Chiefs. He was a key player in the genesis of Bill C-9, and yet even he was not aware that First Nations who hold custom code elections will be subject to clause 3(1)(b). And he is chief of a First Nation that holds custom code elections. He was genuinely surprised to hear this.
Chief Evans did state that he accepted this possibility, but of course he obviously hasn't asked his band members about this because he wasn't even aware of this possibility prior to his appearance two weeks ago as a witness to the Standing Senate Committee on Aboriginal Peoples.
The current Grand Chief of the Assembly of Manitoba Chiefs, Derek Nepinak, is opposed to the passage of Bill C-9. He was asked to be a witness, but he was unable to appear. Chief Evans, the former Grand Chief of the Assembly of Manitoba Chiefs, told the committee that Chief Nepinak could not oppose Bill C-9 on behalf of the Assembly of Manitoba Chiefs because a resolution to that effect has not been passed by the Assembly of Manitoba Chiefs. That's relevant information. There is no resolution objecting to Bill C-9 on the AMC website. However, there isn't one supporting Bill C-9 either. That's right. There isn't one supporting Bill C-9 either. So Chief Evans' complete support for Bill C-9 is his position only and is not backed up by resolution from the Assembly of Manitoba Chiefs as a whole.
The resolution that gave Chief Evans the authority to speak on behalf of the AMC in the past does not address Bill C-9 itself. Instead the resolution indicated the support of the Assembly of Manitoba Chiefs for the initiation of the process to develop federal legislation to lengthen terms of office for First Nation leaders, and to allow for a common election day amongst different First Nations. In other words, as I said previously, Chief Evans himself did not have the appropriate resolution from the Assembly of Manitoba Chiefs to claim total support for Bill C-9. So there is some doubt as to the complete validity of his testimony when it comes to total support.
I will read into the record the pertinent details of this resolution, from January 2009, on the Assembly of Manitoba Chiefs' website. It reads:
THEREFORE BE IT RESOLVED, that the Chiefs-in- Assembly support and endorse the Common Election Day and Standard Term of Office concept.
FURTHER BE IT RESOLVED, that the Chiefs-in- Assembly direct the AMC Grand Chief and the AMC Chiefs Governance Table to:
- Notwithstanding other Canadian jurisdictions, develop a Common Election Code that respects the authority and jurisdiction of each First Nation and ensures our inherent right to self-government.
- Work in partnership with the First Nation communities to prepare referenda options for a province-wide referendum with potential timelines to be brought to the next Chiefs in Assembly in September 2009 for deliberation and decision.
In other words, honourable senators, while the testimony from Chief Evans may have convinced the members of the Standing Senate Committee on Aboriginal Peoples that Bill C-9 is perfect as is, he did not have a resolution from the Assembly of Manitoba Chiefs to support the bill itself. Furthermore, it is unfortunate that we were unable to hear testimony from the current Grand Chief of the Assembly of Manitoba Chiefs, Derek Nepinak, to get a more complete understanding of the AMC's position. It is also unfortunate that we did not hear in-person testimony from any First Nations who are opposed to clause 3(1)(b) or other aspects of the bill. We only heard from First Nations who supported the bill — from the Atlantic Policy Congress and from Chief Evans. We did, however, receive written briefs from the Assembly of First Nations and from the Confederacy of Treaty 6 First Nations who are opposed to the bill, but those briefs were not distributed to the committee until the day after we had an in camera discussion of the bill. In other words, honourable senators, the dissenting opinions were at a disadvantage.
As I outlined in my speech at second reading of this bill, when we studied this bill two years ago, there were significant and substantial objections from the majority of First Nations witnesses and the Canadian Bar Association to paragraphs 3(1)(b) and (c) of the bill.
As I mentioned earlier, while the Assembly of First Nations, the Assembly of Manitoba Chiefs and the Federation of Saskatchewan Indian Nations were invited to appear as witnesses, they were unable to appear.
But the committee did hear in-person testimony from supporters of paragraph 3(1)(b). As I said previously, we heard from Chief Paul from the Atlantic Policy Congress of First Nation Chiefs Secretariat and we also heard from Chief Ron Evans from Norway House Cree Nation in Manitoba, who was formerly the Chief of the Assembly of Manitoba Chiefs. Both of these witnesses gave very powerful presentations that indicated their clear support for Bill C-9 as is; that is, they did not see a problem with paragraph 3(1)(b), which gives the Minister of Aboriginal Affairs and Northern Development the power to order a First Nation to come under its provisions.
As I said earlier, it's unfortunate that none of the First Nations witnesses who were opposed to paragraph 3(1)(b) were able to appear in person before the committee, because such a presentation is much more powerful than a written brief. As I also just mentioned, the committee members didn't even receive the written submissions from the Assembly of First Nations and the Confederacy of Treaty 6 First Nations until after we had already discussed the bill in camera. Committee members did not have the opportunity to ask questions of these witnesses and explore in depth their objections to paragraph 3(1)(b) and other portions of the bill. Later in my speech, I will read the written briefs from the Assembly of First Nations and from the Confederacy of Treaty 6 First Nations so that their thoughts are captured in the official records of the Senate.
It is my belief that because the committee did not hear the in- person testimony from the AFN, the AMC or the Federation of Saskatchewan Indian Nations, and because we did not get a chance to ask them questions, we did not get a balanced overview of the bill and, in particular, the acceptability of paragraph 3(1) (b). While it could be argued that we heard the opposing testimony two years ago, the membership of the committee has changed substantially. There are new senators who did not hear these First Nations witnesses two years ago when we studied this bill.
Our committee did hear from the Department of Justice witness that paragraph 3(1)(b) actually limited the power of the Minister of Aboriginal Affairs and Northern Development compared to his powers under the Indian Act. It was pointed out that the phrase "protracted leadership dispute has significantly compromised governance of that First Nation" was spelled out more so than "whenever he deems it advisable for the good government of a band," which is the phrase used under the Indian Act.
The key observation made, though, was that any ministerial decision to impose the provisions of Bill C-9 on a First Nation could be subject to scrutiny by the courts; thus the wording under Bill C-9 would make it more difficult for the minister to justify the use of this power. So, although I had argued at second reading that this phrase was vague and undefined and could therefore give the minister wide scope to impose Bill C-9 on First Nations, I was persuaded that the scope of his powers is not nearly as wide as I had originally thought, especially as it is ultimately reviewable by the courts.
I would like to note that this bill could have been improved significantly if the government had been willing to accept small changes. One such change could have been placing a further limit on the minister's power in paragraph 3(1)(b) by making it be subject to the consent or the request of the First Nation. We could have amended that paragraph to read:
... the Minister is satisfied that a protracted leadership dispute has significantly compromised governance of that First Nation and has the consent of that First Nation;
We didn't amend the bill in that fashion, but had we done so, it would have allowed the First Nation members or leadership the power to request the minister to intervene and order an election, rather than giving the power just to the minister.
Critics of this idea believe that when there is a protracted leadership dispute, it would be difficult, if not impossible, for the First Nation to pass any band council resolution or referendum to ask the minister to intervene under paragraph 3(1)(b). However, my perspective is different. If a First Nation is experiencing serious governance problems and their leadership was offered the chance to ask to be placed into a system of governance that by all appearances is better, surely they would choose to ask the minister to conduct an election under Bill C-9. Without giving such troubled First Nations the power to choose to come under the provisions of Bill C-9, we are prejudging their abilities to make sound decisions when under duress. In other words, by not even giving First Nations undergoing significant governance problems the choice to ask the minister to add them to the schedule of Bill C-9, the bill perpetuates a colonial and paternalistic pattern of thinking.
While Bill C-9 is not a self-governance bill, the constitutionally embedded rights of First Nations to their existing Aboriginal and treaty rights are interpreted as meaning they can govern themselves. Having the minister order them to hold an election under the provisions of Bill C-9 is seen as a violation of those rights.
In the committee's observations of Bill C-9, we noted that:
Finally, the committee heard objections from witnesses that clause 3(1)(b) perpetuates the power of the minister over the affairs of First Nations. In examining this concern, the committee noted that the vesting of the power of dissolution of government of all types is a common and necessary feature in Canada (including federal, provincial, and municipal governments).
Honourable senators, I would like to examine this piece of information in more detail. In our federal system of government, it is the Governor General who is vested with the power to order new elections. The Governor General is prescribed the power to summon Parliament and dissolve Parliament under sections 38 and 50 of the Constitution Act, 1867.
While these powers are prescribed to the Governor General, it is the Prime Minister, by constitutional convention, who tenders and advises the Governor General to use these powers. If the Prime Minister would like to summon, prorogue or dissolve Parliament in order to call a new election, he or she makes a request to the Governor General, and the Governor General can either grant or reject this request.
In fact, as I recall, when Prime Minister Harper made his visit to see the Governor General Michaëlle Jean, they spent several hours discussing, so people were wondering if she was going to grant the request or deny it. I'm sure we all remember that occasion.
Rejection of these requests is rare in our history. Honourable senators may recall the tale of the King-Byng Affair of 1926. I don't think any of us here were born at that time, but other people who are interested in these types of things have likely read about it. In this instance, to avoid a vote on the "Fansher amendment," a motion of censure against King, Prime Minister King requested that Governor General Lord Byng dissolve Parliament. Byng refused the request on the grounds that Prime Minister King had gone back on a previous agreement with Byng when he first formed government and that, as the Conservatives held the most seats of a single party in the House of Commons, they should be afforded a chance to form government before an election was called.
What is critical to point out here is that under constitutional convention, the Governor General acts after a request from the representative leadership. The Prime Minister makes that request. The Governor General may refuse the request, but this refusal is not the same thing as initiating the summoning, proroguing or dissolving of Parliament without a request from the elected leadership, such as the Prime Minister.
The important point is this: Under Bill C-9, there is no mechanism for the elected leadership on a First Nation to request the minister to use the power of paragraph 3(1)(b) and order that First Nation to come under Bill C-9 and order a new election according to the provisions of this bill. There is no mechanism for the leadership to request the minister to act, unlike what happens with the Governor General and the Prime Minister.
While I agree with the principle that there should be someone vested with the power to summon, prorogue or dissolve government, it is clear that paragraph 3(1)(b) as is does not create a truly analogous situation with respect to comparing the Governor General's powers over the federal government to those of the Minister of Aboriginal Affairs and Northern Development over First Nation governments — not unless it were amended so that the minister had to be asked to act by the First Nation. Then we would have a truly analogous situation to our Westminster Canadian practice and constitutional conventions. That would have been the preferable scenario.
If a more fulsome discussion had been possible on the issue of First Nation sovereignty versus the Westminster model of governance, perhaps the committee would have gained insights into the strong objections by First Nation leaders to investing the Minister of Aboriginal Affairs and Northern Development with the power to impose Bill C-9 on custom code First Nations. Unfortunately, we did not have that discussion.
In addition, I am still not convinced that the Minister of Aboriginal Affairs and Northern Development is the right person. Unlike the Governor General or the lieutenant-governors, the minister is not at arm's length from the operations of First Nations governance. The minister is not neutral. No one is ever completely neutral, but the minister, through the department, is involved intimately in the oversight of the day-to-day functions of First Nations.
A few weeks ago, for example, First Nation chiefs were being asked to sign on to their annual contribution agreements by the department. This is the annual funding they receive from Aboriginal Affairs and Northern Development Canada, and some First Nations have refused to sign, in part because of a perceived lack of negotiation or accommodation of First Nation input into the agreements. It could be with all the paperwork and all the meetings that are going on with respect to signing those agreements and the cutbacks to organizations like the Federation of Saskatchewan Indian Nations and the Assembly of Manitoba Chiefs, that may have complicated their ability to appear as witnesses at the committee, because of what was going on within their day-to-day operations. They had to make choices about what they could do or could not do.
In the current scenario of development of resources located on First Nations' land, it is easy to imagine scenarios in which there will be leadership disputes that affect First Nation governance. Conflict over resource development, environmental protection and revenue sharing is bound to occur and is occurring. With a federal government that favours resource development over environmental protection, how can a First Nation trust the minister not to intervene in their leadership disputes over such issues, when that First Nation has differing priorities from the federal government?
Furthermore, and perhaps more important, there is another problem with the minister having the power ascribed to him by paragraph 3(1)(b). There is a longstanding historic mistrust of the Minister of Aboriginal Affairs and Northern Development by some First Nations. The minister states that he wishes to give up the colonial, paternalistic practice of being in charge of First Nation election appeals, yet, at the same time, he doesn't want to give up the power to compel a First Nation to come under the provisions of Bill C-9. Such mixed messages do not create trust. To create trust, the department and the minister should be giving consistent, straight answers to questions about the bill or other matters.
It was most perplexing and confusing that, in one answer, the minister of the day or the department officials would first state one thing and then later on would state the exact opposite regarding the application of ministerial power under paragraph 3(1)(b) of this bill. Which answer are we to believe?
Honourable senators, let me give you some examples of the conflicting answers that we heard during consideration of this bill.
During the February 15, 2012 meeting of the Aboriginal Peoples Committee, Senator Meredith asked the following question:
I take this from the transcripts. Senator Meredith said:
Minister, you indicated that this piece of legislation does not affect those who hold elections under their custom codes; is that my understanding? Is that correct?
Minister Duncan replies:
That is correct.
During a subsequent meeting on March 6, 2012, I asked whether First Nations that operate under a custom code would be excluded from the power of the minister in paragraph 3(1)(b). My question was:
Does that exclude custom code elections, too?
Ms. Kustra, Director General, Governance Branch, Regional Operations Sector, Aboriginal Affairs and Northern Development Canada, said:
No, it does not because the communities that elect their leadership under a community custom code are still considered Indian bands within the meaning of the Indian Act.
Honourable senators, let me highlight the contradictions in these two answers. In the first answer, we were told that First Nations with custom code elections are not affected by this bill, but in the second answer, we are told they are — quite contradictory answers.
Similarly, during committee study in the other place on November 7, 2013, Ms. Jean Crowder asked the following question:
So under the proposed legislation under clause 3, one aspect of that is for a nation to indicate that they want to be included, but there are also provisions in this legislation for the minister to order somebody under the new legislation.
Would that be either Indian Act bands or custom? Just custom?
And the Honourable Minister Bernard Valcourt said:
No, just Indian Act bands.
Ms. Jean Crowder then asked:
Okay. That's not clear from this.
So what you're saying is—
And then Honourable Minister Bernard Valcourt said:
Yes, there was a protracted...no, you're right. Sorry.
Ms. Jean Crowder said:
But it could be either Indian Act—first nations currently under the Indian Act legislation or custom code. Both could be referred to the new legislation.
Mr. Valcourt then said:
If the minister was satisfied that there was indeed a protracted leadership dispute, in that case, yes, either an Indian or a custom band could be ordered to come under the act.
Okay, let me explain this again: First, Minister Valcourt says that custom bands can't be ordered to come under Bill C-9; then he corrects himself and says, yes, they can be. But this answer contradicts what the previous minister said about the exact same paragraph, paragraph 3(1)(b). Most confusing.
How can First Nations trust the minister or the department when they hear contradictory answers to the same question? Which answer is true?
But, right now, do we finally have one and only one answer to this question from Indian and Northern Affairs Canada, right here, today, April, 2014? No, we do not.
Under tab 2 of the bill kit, which lists frequently asked questions, question 9 is:
Will this affect First Nations who hold their elections under their own community or custom election code or self- governing First Nations?
The answer given in the kit is:
A9. No. The proposed new regime is optional. First Nations who do not wish to "opt in" will continue to hold their elections according to their own rules.
To sum up all of that confusion, first we get our custom code bands included. The first answer from Minister Duncan is "no." The second answer from Kustra is "yes." The third answer from Minister Valcourt is "no." The fourth answer from Valcourt is "yes," and from the bill kit it's "no." It's no, yes, no, yes, no. If we ask again, the answer is "yes," and when I asked Senator Tannas, the response we got back was "yes." This lack of consistency in the answers to the same question has likely made it difficult for First Nations to trust the minister, as First Nations try to figure out — let alone me, as the critic of the bill — which answer is true.
Honourable senators, while I believe the election provisions spelled out in Bill C-9 are a major improvement over Indian Act elections, and while I agree that the implementation of Bill C-9 will create greater stability for First Nations who hold the Indian Act elections who choose to opt into it, I do not agree that it is acceptable for the Minister of Aboriginal Affairs and Northern Development to impose Bill C-9 on any First Nation which conducts custom code elections without their consent or without at least being asked to do so.
A number of witnesses had strong objections to clause 3(1)(b) and consequently opposed the bill. These witnesses were trying to protect the electoral rights of First Nations who have adopted custom code elections which are self-designed and departmentally approved. In addition, they were trying to protect those First Nations who hold elections according to their traditional customs and have never held an Indian Act election. While the departmental witnesses and those organizations that represent First Nations who hold Indian Act elections were convinced that the minister would rarely, if ever, use his power on First Nations who hold custom code elections, I don't think the dissenting opinions were given an equal chance to be heard.
Furthermore, how can First Nations trust the minister to use his power only in rare instances when they can't get a straight answer as to whether or not this power extends to custom code First Nations?
In my opinion, the dissenting opinions of the Assembly of First Nations, Treaty 6 Confederacy, the current Assembly of Manitoba Chiefs and the Canadian Bar Association were too quickly dismissed. The role of senators ought to be to listen more carefully to minorities, such as First Nation citizens and their leaders, especially when they have an opposing viewpoint. I regret that we missed an opportunity to amend Bill C-9 as suggested by these First Nation witnesses. If we had done so, it would have been proof positive of the value the Senate to improve legislation that comes before us and protect the rights of minorities such as First Nations.
Though I still think Bill C-9 has major flaws, I also recognize that the federal government is not willing to make any changes. I am thankful, though, that at least at the Standing Senate Committee on Aboriginal Peoples meetings we were able to have a good discussion and agree to disagree respectfully. We have a good working relationship.
To sum up what I have just said over the past 30 minutes, clause 3(1)(b) gives the minister the power to include a custom code First Nation under the provisions of Bill C-9. That clause should have been amended so that the minister has to be asked to intervene. However, that did not occur.
Second, the opponents of Bill C-9, the First Nation witnesses from the Assembly of Manitoba Chiefs, the current grand chief, the Federation of Saskatchewan Indians and the Treaty 6 Confederacy, were not given a fair chance to be heard because they didn't actually appear in person. Opposition to the bill was not really heard to the extent it could have been.
The third issue is one of trust. This is a big one because in order to have a good working relationship, you have to have trust. We see that in the chamber here. In our committee, I believe we have a good understanding of each other and we trust each other; perhaps overall in the whole Senate we don't, but if you look at the relationship between the many First Nations and the Minister of Aboriginal Affairs and Northern Development, that relationship is not solid because of the trust issue. When the minister does not give the same answer to the same question time after time, then First Nations are wondering what to believe. How can you trust someone when you are not sure you are getting the truth?
Finally, it's clear that the federal government wants Bill C-9 passed as soon as possible. We had the notice of motion given that was unnecessary; nevertheless, it's there. This seems to be a pattern. Unfortunately, First Nation leaders are always struggling to have their voices heard. That has happened over the last few years. I have been the critic on a number of bills affecting First Nations. They struggle really hard to have their views heard and recognized, yet I don't think they are receiving the hearing or the full attention that they should be getting. That really is a sad situation.
I do not support the passage of Bill C-9 as is. To conclude my speech, I will read into the record the written brief submitted to the Standing Senate Committee on Aboriginal Peoples on March 26 and circulated to the committee members on March 27 in both official languages.
This is the brief from the Assembly of First Nations, and it states:
The AFN acknowledges the work that many First Nations have undertaken with the Government of Canada to develop and champion this bill and the significant support they provide for this optional legislative framework.
This legislation could create improvements for our First Nations that conduct their elections pursuant to the Indian Act, particularly those that have found the current two-year terms limit economic development and opportunities for longer-term planning.
The inherent right of self-government is protected under section 35 of the Constitution Act, 1982. There can be little doubt that core governance, and in particular the selection of the governing body, is an aspect of the inherent right. Consequently, we caution Canada that passage of this legislation is subject to constitutional challenge where the act is not enabling (optional) and does not recognize a First Nation's choice to establish its rules for selecting its governing body in accordance with the Act.
This infringement on the inherent right is of particular concern with respect to section 3(b) and (c) where the Minister can order a First Nation which currently conducts its elections outside of the Indian Act to follow the provisions of the FNEA, where the Minister is either satisfied that "a protracted leadership dispute has significantly compromised governance of that First Nation" or where "the Governor in Council has set aside an election of the Chief and councillors of that First Nation under section 79 of the Indian Act on a report of the Minister that there was corrupt practice in connection with that election."
In practice, this will compel First Nations that have developed their own systems to then return to conducting elections under federal law without their express consent or the direction of their citizens.
Additionally, while removing the role of the Minister or Governor-in-Council in appeals for First Nation elections is welcome, transferring responsibility to courts will entail costs for First Nation citizens and governments.
First Nations have identified the need for broader institutional support and capacity in the area of leadership selection to assist in developing and ratifying their own leadership selection processes, based in their own traditions and practices.
This legislation does not take steps towards that goal, nor towards support for reinstituting traditional governance practices outside of federal laws and policy, but as an interim step could provide improvements for many governments.
The AFN supports enacting the full decision-making authority by First Nation governments, empowered by their citizens. In choosing and designing mechanisms for the fulfillment of this authority, care needs to be taken that new barriers or new oversight mechanisms are not being created, further vesting control in the office of the Minister of Aboriginal Affairs and Northern Development. Fundamentally, this bill attempts to fix the practical governance issues created by the imposition of the Indian Act through further federal interference. However, it can ameliorate specific challenges that have been identified by First Nations.
Regardless, the new powers granted to the Minister under this legislation are inappropriate and the AFN recommends that the committee strike Section 3, sub-sections (b) and (c).
That's the end of the written submission from the Assembly of First Nations on Bill C-9.
I will read into the record the written submission from the Confederacy of Treaty Six First Nations. It's quite a bit longer.
The Confederacy of Treaty Six First Nations were created in the spring of 1993 with the purpose of serving as the `united' political voice for those Treaty Nations who are signatories of Treaty No. 6 for the continued protection of the fundamental Treaty, Inherent and Human Rights of the Treaty peoples of those Nations. The member Nations of Treaty Six are as follows:
1. Alexander First Nation
2. Alexis Nakota Sioux Nation
3. Beaver Lake Cree Nation
4. Cold Lake First Nation
5. Enoch Cree Nation
6. Ermineskin Cree Nation
7. Frog Lake First Nation
8. Goodfish Lake First Nation
9. Heart Lake First Nation
10. Kehewin Cree Nation
11. Louis Bull Tribe
12. Montana First Nation
13. O'Chiese First Nation
14. Onion Lake First Nation
15. Paul First Nation
16. Saddle Lake Cree Nation
17. Samson Cree Nation
18. Sunchild First Nation.
The Confederacy is dedicated to ensuring that the terms, spirit and intent of Treaty No. 6, including sovereignty and jurisdiction are honoured and respected. Sovereignty and jurisdiction includes our right to self-determination, which includes the right for the Treaty No. 6 First Nations to choose their own governmental and political structures; and to direct the social, cultural, spiritual and economic advancement of their peoples in their lands and territories. These rights are protected domestically in our Treaties and other laws, as well as internationally in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
The Confederacy of Treaty Six First Nations forwarded (11-29-2012/#01R) opposing all federal legislation, regulations and policy changes to Prime Minister Stephen Harper and Minister Duncan, with copies to opposition members, Alberta Members of Parliament, and the Assembly of First Nations. The resolution declared in part that the Federal Government had failed to consult and accommodate First Nations rights —
The Hon. the Speaker pro tempore: Do you need more time?
Senator Dyck: Could I have five more minutes?
The Hon. the Speaker pro tempore: Are Honourable senators agreed to five minutes?
Hon. Senators: Agreed.
Senator Dyck: I'll continue reading:
... the Federal Government had failed to consult and accommodate First Nations rights and interests as mandated by the constitutional nature of our rights. This legal obligation has been further enhanced by the United Nations Declaration on the Rights of Indigenous Peoples, which now requires that our free, prior and informed consent be obtained before Canada makes any decision, action or legislation that has the potential to impact our rights. We called on the Government of Canada to provide First Nations the opportunity to participate in meaningful process.
In the Treaty Six Position Paper presented to Prime Minister Stephen Harper on January 11, 2013, we reminded Parliament that the Canadian Constitution Act, 1982, contains the following:
Sec. 52. (1) states:
The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
Sec. 35. (1) states:
The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
The Supreme Court of Canada ruling supports the Crown's legal duty to consult and accommodate First Nations where Crown decisions may adversely impact our constitutionally recognized and affirmed Aboriginal and Treaty Rights. Keep in mind that there are also our traditional laws in relation to these matters that have never been displaced by Canada's laws that must be considered in any matters impacting our First Nation governments. In addition, many Supreme Court rulings have upheld Canada's fiduciary (trust) duty to Treaty Peoples.
"The ultimate legal responsibility for consultation and accommodation rests with the Crown. The honour of the Crown cannot be delegated."
Chief Justice MacLachlin, Supreme Court of Canada in Haida
Now once again, we are forced to address the ongoing failure of government and Parliament to obtain our consent by undertaking adequate consultation for the purposes of accommodation in order to achieve true reconciliation.
Problematic sections of Bill C-9
On October 29, 2013 the Government of Canada, through the Minister of Indian Affairs introduced Bill C- 9: The First Nations Elections Act. This Act is a reincarnation of Bill S-6 from the previous session of parliament that was killed on the Order Paper through prorogation. Proposing an opt-in approach to First Nations governance, the bill stipulates regulations and changes eligibility, terms of office and composition of councils which are subject to ministerial approval or determination. Applying to those First Nations contained in the schedule, Bill C-9 can also be applied when the Minister is "...satisfied that a protracted leadership dispute has significantly compromised governance..." of a First Nation. This clause appears to create the opportunity for the minister to impose the Act on a First Nation under investigation for governance issues. Unilateral imposition of the Act will not work, as this imposition will override the existing structure, including customary election codes which have been chosen by the nation.
Bill C-9 will also allow for the petitioning of electors to have leadership removed from office, and allows for intervention after the submission of said petition to a respected court. This clause could create further issues of legal and jurisdictional nature when the application of provincial law is questioned. Petitioning for a change in leadership is not a provision of any other government in Canada, yet it could become a tool for removal of leadership within First Nations. Clauses such as the aforementioned create hesitation and concern for First Nations in Canada as they open doors for unilateral intrusion of government policy.
The Hon. the Speaker pro tempore: Unfortunately, time is up.
Hon. Dennis Glen Patterson: Honourable senators, I was going to ask the honourable senator a question, but we have run out of time for that.
I want to make a brief comment. I appreciate Senator Dyck's thoughtful comments on the bill and how it was considered quite thoroughly by our committee in public and in camera.
Frankly I find the suggestion that a Minister of Aboriginal Affairs, acting under the authority of a bill entitled the "First Nations Elections Act," would employ clause 3(1)(b) to somehow punish or overthrow the leadership of a First Nation government where there is opposition to a resource development project; I just don't think the bill that we are considering today could be twisted and perverted to such cynical, Machiavellian purposes.
It has been argued that the phrase in the bill justifying the minister's ordering of an election under the Indian Act, "a protracted leadership dispute has significantly compromised governance of that First Nation," is unclear and needs to be defined in regulations or otherwise. Frankly, I find the plain meaning of those words to be understandable and common sense. I think that if it were challenged, a court would first consider that it's about an elections act, not about resource development or environmental or other regulatory process. It's about a protracted leadership dispute, something that could not be used on the spur of the moment if a band took a position that was not pleasing to the government.
Finally, it's about a leadership dispute that has compromised governance of that First Nation. The reality is that this power has been very rarely used in the past. The minister appeared before our committee in the previous Parliament and assured us that it would be very reluctantly used. We have pointed out in our observations that it would only and should only be used where all other methods of resolving the governance impasse were exhausted. The minister and the department outlined various processes that they could and would employ to seek to resolve the impasse, short of the minister's using this power. Furthermore, in our observations we said it should be rarely used and with great caution.
Frankly, with all respect to the honourable senator, I think the suggestion that the bill could be used in cases of disputes over resource development is pushing the concerns about this bill too far. I believe that's a challenge to the honour of the Crown. I believe ministers do consider the honour of the Crown seriously in discharging their obligations. They are always given legal advice when they undertake these difficult decisions, and I just want to put on the record that I respectfully disagree with the honourable senator's fear about clause 3(1)(b).
Senator Dyck: Would the honourable senator take a question?
Senator Patterson: All right. That's not quite what I had intended, but sure.
Senator Dyck: Thank you. I believe you implied that I said clause 3(1)(b) could be used to punish or to overthrow a government. If those were the words you used, I certainly did not imply that it could be used to punish nor use the word "overthrow"; I just said the minister might be able to impose an election, not to punish them or to overthrow their government. Those were not the words that I used, but I think they were the words that you used. Is that right?
Senator Patterson: Perhaps I was characterizing — perhaps with a little hyperbole — I was characterizing the concern about this clause and how it might be used. The honourable senator did not use those words, but I still believe that, in the climate of mistrust, we have these suspicions and these fears that are really not often founded in the plain words of the legislation that we are considering.
Senator Dyck: I have another question. During the deliberations of the committee, by the initiators of this bill, the Atlantic Policy Congress and the Assembly of Manitoba Chiefs, one of the arguments that they certainly did bring forth was that this improvement would lead to economic development. It wasn't just about elections. Economic development was mentioned many times as one of the reasons we needed this bill. Was that not brought up during committee? Did you not hear that?
Senator Patterson: I don't think it was about resource development per se, Your Honour. I think the point that was being made was that where you have no government, where there is a prolonged impasse, you have no ability to make any decisions leading to progress of businesses of the First Nation band and leading to the delivery of basic government services. Yes, in the sense that there would be no stability and no one with whom businesses or even the Minister of Aboriginal Affairs could deal, and that would lead to not only a lack of opportunities for economic development but also a lack of opportunities for delivering basic services. That's why what some might say are extreme provisions are put in place so that government can be restored for the good of the community in situations where a dispute cannot be resolved by good faith and the best intentions of the federal officials.