Debates of the Senate  
2nd Session, 41st Parliament, Volume 149, Issue 68
  Tuesday, June 10, 2014
 
Speech: Bill C-428: Indian Act Amendment and Replacement Act (2nd Reading)
Hon. Lillian Eva Dyck: Honourable senators, I rise today to speak to Bill C-428, An Act to amend the Indian Act (publication of by-laws) and to provide for its replacement. This bill was tabled by Member of Parliament Rob Clarke from Desnethé—Missinippi—Churchill River in northern Saskatchewan.

Senator Ngo, the sponsor, outlined the main purposes of this bill in his second reading speech. Today I will focus on two aims of the bill: first, to require the Minister of Aboriginal Affairs and Northern Development Canada to report to a House of Commons committee annually on the steps that he or she is making to develop legislation to replace the Indian Act; and second, to repeal or amend those sections of the Indian Act that deal with education.

Honourable senators, first and foremost, however, I wish to note that tomorrow is the sixth anniversary of Prime Minister Stephen Harper's official apology for Indian residential schools. That was an important, historic apology. Part of the reconciliation process was the establishment of the Truth and Reconciliation Commission, which has brought to light the inhumane and unjust practices that occurred at some of the Indian residential schools. As part of the reconciliation process, four years ago the then Minister of Indian and Northern Affairs Canada, Chuck Strahl, pledged that the federal government would remove from the Indian Act those sections concerned with education that are outdated.

Honourable senators, I cannot help but note, then, that it is odd that Bill C-428, a private member's bill, seeks to do exactly that — to remove from the Indian Act those sections concerned with education. Moreover, Bill C-33, the proposed First Nations control of First Nations education act, a government bill, also proposes to remove the same sections from the Indian Act. But, as you know, Bill C-33 has been put on hold by Minister Valcourt, and our committee has suspended our pre-study of it.

Honourable senators, there is a great desire by all stakeholders and a great need to reform First Nations education. Getting rid of the education sections of the Indian Act is a politically significant aspect of that reform. While such changes to the Indian Act are essentially a symbolic gesture, doing so would be praiseworthy and would reap great political capital. However, under the current circumstances, when Minister Valcourt has refused to negotiate with the so-called rogue chiefs who have significant objections to Bill C-33, and when he refuses to fund on-reserve schooling adequately without the legislation, it would be a travesty to pass Bill C-428 at this tumultuous time. To remove the education sections of the Indian Act by passing Bill C-428, a private member's bill, would be seen as a dishonourable mechanism to showcase this government's commitment to reforming First Nations education. The only acceptable way to pass Bill C-428 would be to amend it substantially by removing all the education-related clauses that are duplicated in the government bill, Bill C-33, the First Nations control of First Nations education act.

Honourable senators, this is the first time that we have dealt with a private member's bill that not only seeks to repeal sections of the Indian Act but that also aims to create a process for the subsequent replacement of the Indian Act. I would like to note that this, too, is unusual. Legislation that strikes at the heart of the statute that governs the majority of First Nations in Canada would be expected to come from the government itself, rather than from a private member.

While I commend the member from Desnethé—Missinippi—Churchill River for pushing the issue of replacing the Indian Act forward, we have to recognize that the governing relationship is one between the Crown and each individual First Nation. The Crown has a fiduciary obligation to First Nations in Canada. I am aware that the Minister of Aboriginal Affairs and Northern Development Canada and the government have supported the passage of this bill in the other place. It perplexes me that these measures were not included in government legislation.

Moreover, as one of the aims of this bill is to direct the minister to develop legislation to replace the Indian Act, it would seem that the minister in charge and his or her department should be introducing a framework piece of legislation to guide such a process.

As I stated earlier, Bill C-428 would require the Minister of Aboriginal Affairs and Northern Development Canada to come before the House of Commons Aboriginal Affairs and Northern Development Committee annually to provide a report on his or her progress in replacing the Indian Act. The relevant clause, clause 2 states:

Within the first 10 sitting days of the House of Commons in every calendar year, the Minister of Indian Affairs and Northern Development must report to the House of Commons committee responsible for Aboriginal affairs on the work undertaken by his or her department in collaboration with First Nations and other interested parties to develop new legislation to replace the Indian Act.

I would like to point out three things with respect to this clause. First, there is no definition of "collaboration." As honourable senators know, the Crown has an obligation to fully consult and accommodate First Nations when it brings forth legislation that may infringe upon Aboriginal and treaty rights. This has been well established by multiple Supreme Court rulings over the years. As Bill C-428 is not a government bill, I wonder if the duty to consult and accommodate First Nations in the development of replacement legislation would be fully protected in the spirit of those Supreme Court rulings.

This speaks to the point I made from the outset. The Crown did not bring forth this legislation, a member of Parliament did. During Member of Parliament Clarke's second reading speech, he said of this section:

This section of my Bill requires a collaborative consultation process between First Nations and the minister of Aboriginal Affairs and Northern Development Canada specifically on the Indian Act.

What guarantee is there that collaboration will meet the legal duty to consult established by Supreme Court decisions as this is not a government bill that would have to live up to those legal standards? I don't know. I hope that Aboriginal Affairs and Northern Development Canada and Justice officials will answer these questions when the bill is scrutinized at committee.

Secondly, clause 2 only requires the minister to report his or her actions to the House of Commons committee. It does not establish or create any parameters and mechanisms for the development of legislation to replace the Indian Act. That is left to the minister responsible and his or her department. I guess that is a fair placement of responsibility. However, again we run into this problem that since Bill C-428 is not government legislation, any parameters that would be developed and presented in subsequent regulations and presented to Parliament are in a grey zone. Will clause 2 spur regulations to develop some sort of framework for collaboration?

We have seen from other First Nation bills, S-8, for example, that quite a bit of funding was set aside for consultations. Will clause 2 spur the additional funding required to have meaningful consultations as well, or will all of these questions be left to the discretion of the minister? Again, I hope that Aboriginal Affairs and Northern Development Canada officials can come before the committee to explain how they will actually implement this clause.

Thirdly, clause 2 states that the collaboration to replace the Indian Act is between First Nations, the minister and his or her department, and other interested parties. "Other interested parties." I would like to pause on this phrase for a moment. Any replacement of the governing act — the Indian Act — that operates at the legislative level to order a system of governance and prescribe or restrict certain rights that flow from this act to First Nations people should, again, be negotiated between the Crown and First Nations only. Who are these other interested parties? In some cases, it may well be other levels of government — provincial, territorial or municipal governments. Collaboration with the provinces, territories or municipalities would be reasonable when dealing with sections of the Indian Act that allow provincial law to apply or in dealing with a wide assortment of tripartite frameworks as a possibility of replacement legislation.

I do, however, want to caution that, if "other interested parties" includes industry, I have great concerns. If, in the creation of any piece of legislation that replaces the Indian Act, industry, especially the natural resources industry, is a collaborator in prescribing new legislation meant to replace the Indian Act, this is a problem.

Any replacement of the Indian Act should reflect, as stated in the preamble of C-428, "the modern relationship between it," the Government of Canada, "and the people of Canada's First Nations."

During a committee study, it should be clarified what bodies can be considered legitimate, interested other parties that can be part of replacing the Indian Act.

As I mentioned earlier, there is a deliberate duplication in clauses within Bill C-428 and Bill C-33. Clause 4 in C-428 is exactly the same as clause 53 in C-33. Requirements in clause 9 in C-428 have already been incorporated into the bylaw publication clause 47 in C-33, and, most significantly, clauses 14 to 18 in Bill C-428 that deal with education and residential schools are incorporated into clause 52 and clause 54, with coordinating amendment clause 57, in Bill C-33. Why? Why was there a need to do this? I hope we can get an answer to this question from the minister or the departmental officials.

The duplication of the clauses in the two bills is obviously a deliberate, premeditated manoeuvre. This is made clear by the inclusion of coordinating amendments in Bill C-33. As I mentioned, clause 57 in C-33 serves to direct the coming into force of these duplicated provisions in either scenario — the enactment of Bill C-33 first or the enactment of Bill C-428 first.

Honourable senators, clearly there is a great need to create a modernized, culturally appropriate and fairly funded education system on reserves. In recognition of the importance of this need, we passed a motion to conduct a pre-study of Bill C-33 by the Standing Senate Committee on Aboriginal peoples. However, as I noted earlier in my speech, the strong opposition to C-33 by many First Nations leaders and the resignation of National Chief Atleo resulted in the minister putting the bill on hold in the House of Commons. His refusal to negotiate with the opposing chiefs and to rectify the funding immediately for on-reserve education is punishing the children and youth on reserves across Canada.

Honourable senators, I will repeat what I said earlier in my speech. It would be a travesty to pass C-428 at this tumultuous time. To remove the education sections of the Indian Act by passing Bill C-428, a private member's bill, would be seen as a dishonourable method of showcasing this government's commitment to reforming First Nation education. The only acceptable way to pass C-428 would be to amend it substantially by removing all of the education-related clauses that are duplicated in the government bill, C-33, the proposed First Nations control of First Nations education act.

Honourable senators, when this bill comes before the Standing Senate Committee on Aboriginal Peoples, I hope that we make the suggested amendments and I hope that we will examine thoroughly all of the implications of this bill, particularly because of its nature as a private member's bill and not government legislation.

Hon. Joseph A. Day: Your Honour, I wonder if the honourable senator would entertain a question.

Senator Dyck: Yes, I would.

Senator Day: I don't have Bill C-428 in front of me, but I believe I heard your remark that, in the bill, the minister is required to consult with the House of Commons committee responsible for Aboriginal peoples.

Senator Dyck: Correct.

Senator Day: Is there mention anywhere else of consultation with the Senate committee responsible for Aboriginal peoples?

Senator Dyck: Thank you for that question.

No, there is no mention of the Senate. I actually thought that was interesting. The minister will only be reporting to the House of Commons committee responsible for Aboriginal affairs. There was no mention at all of the Senate.

Senator Day: I have a supplementary, Your Honour.

We have seen this in the past, where backbenchers in the House of Commons have forgotten there is a Senate. Once we explain to them our role, especially when they realize their bill has to come here and go through the Senate as well, they normally agree to include the Senate as part of the consultation process.

Do we know if that has been done, if Mr. Clarke has been approached in relation to this and if the sponsors in this particular chamber have explained the importance of two chambers?

Senator Dyck: I can't speak on behalf of the sponsor, but Member of Parliament Rob Clarke has come to see me, so he's aware that the Senate exists. He's aware that we also have a Standing Senate Committee on Aboriginal Peoples, but we did not at that time discuss the issue of including the Senate committee within that preamble