Debates of the Senate  
1st Session, 41st Parliament, Volume 148, Issue 131
  Thursday, December 13, 2012
Bill 45: Budget Implementation Act II
Hon. Lillian Eva Dyck: As all honourable senators know, the Assembly of First Nations held its special chiefs assembly across the Ottawa River in Gatineau last week. The chiefs protested on the hill because they were so upset about what is happening with regard to Bill C-45.

Division 8 of Bill C-45 makes amendments to the Indian Act in relation to proposed land designations. By removing the double majority requirement, it allows land designations to be approved by a majority of electors of a band at a meeting or referendum without also having a majority of all eligible voters also present. It also enables the minister to call certain band meetings or referenda for the purpose of deciding on land surrenders. The purpose of this section is to speed up the land designation process so that First Nation communities can take advantage of economic opportunities more quickly.

While the impacts of these specific changes are not expected to be detrimental to First Nations, the decision to unilaterally amend portions of the Indian Act without prior consultation or accommodation violates the government's legal duties under the Constitution. It also breaks the recent promise of the Prime Minister at the Crown-First Nations Gathering not to do so without consultation with First Nations, and where he said:

Our government has no grand scheme to repeal or to unilaterally rewrite the Indian Act.

The Standing Senate Committee on Aboriginal Peoples, during its pre-study of Bill C-45, Division 8, held two meetings. Minister Duncan and officials came to speak to us one time, and the next week we had a witness from the Assembly of First Nations, Ms. Kathleen Lickers, an external legal and technical adviser to the Assembly of First Nations on the matter of additions to reserves and specific claims reform. That was it two meetings. I believe we had also invited one other vice-chief from the Federation of Saskatchewan Indians, but for some reason he was not able to attend.

I think the overall view from the First Nation communities, the Assembly of First Nations and other regional chiefs is that they are not happy with this bill because of the lack of consultation. I believe that view is reflected in our observations on the bill. It is put in strong but delicate language.

Last week, as we all know, the First Nation chiefs were on the hill and in the foyer to the House of Commons. The chiefs were very upset. Chief Wallace Fox from Saskatchewan, from Onion Lake, a very prosperous First Nation, spoke about their objections to the bill. The chiefs were upset at the lack of consultation and the implications that passing this bill might have with respect to actual ownership of the land. They are not confident that this is the best way to go, and they are not in favour of this bill being passed. They do not want any changes to the Indian Act without being consulted and accommodated. They want their treaty rights to be honoured by the Crown.

At our committee meeting, the minister indicated he had consulted with First Nations, but the extent of this so-called consultation was to send a letter to all First Nation chiefs across the country, informing them that the bill had been tabled. He said that he had not received any complaints. However, two letters were received by the committee after the bill was tabled and after the minister said he had received no feedback. Chief Wallace Fox was one of the chiefs who wrote to us, saying, "Stop the bill. We do not want it to proceed."

Ms. Lickers, who represents the AFN, also talked at some length about the words "designation" and "surrender," which are prominent in the bill, and their meaning within the bill. She said although surrendering of lands is the term used legally, it is actually poorly defined or vaguely defined in legal terms. There is concern about what surrender means to the actual ownership of the land to the individual First Nations. Yet, at the same time, she did indicate that the bill was a positive move that may help initiate economic activity on reserves.

Ms. Lickers stated:

When the introduction of designation was made in 1988, it invited that very confusion; namely that the act of leasing lands was not to change the reserve land base. They were not surrendering lands. However, the provisions were drafted such as to describe designation as some kind of conditional surrender. In other words, the First Nation was surrendering lands to the Crown but on the condition that they would be surrendered for the use of leasing purposes. When the lease expired, they would revert back to reserve land base. Even today that invites an enormous difficulty [in interpretation].

Honourable senators, Ms. Lickers did indicate that the word "designation" was open to interpretation and that because it was used commonly, she did not have a great objection, but she said there was a concern that within individual First Nations it is not really clear exactly what that means. I repeat, it is not really clear exactly what that means.

Apparently, from what has been said to me by chiefs, there is a question as to whether, in the case where land is surrendered and leased to someone who is not a First Nation member, or is leased to a corporation, there might be difficulties if that corporation goes bankrupt. Since land leased by a corporation can be used as collateral to banks in return for loans, if a corporation were to go bankrupt, then there is much ambiguity over whether the leased land now belongs to the bank or if it reverts back to the First Nation. Although the intention is apparently a temporary surrender, again, because the word "designation" is open to interpretation, there is understandable objection by First Nations.

It is sad, but this type of confusion could have been avoided had the government simply consulted with First Nations, as is their constitutional obligation.

Honourable senators, it is worth noting again that if there had been more consultation with the various First Nation parties, the question of surrender would have been discussed ahead of time, that is, before the tabling of the bill, and there might have been something included in the bill that specifically addressed their concerns. Surely this is not too much to ask.

Honourable senators, I will read into the record the letter Chief Fox sent to the Aboriginal People's Committee. He said:

We have been silenced by the Parliament process. We cannot make any oral intervention. As a result, we are submitting our written statement. We want the sections 206 to 209 removed from the Omnibus legislation and a process that respects our relationship developed so as to meaningfully discuss the proposed changes. We are being silenced by the parliamentary process in a manner that can only be considered undemocratic.

Honourable senators, Chief Fox's comments and frustration run deep through the Aboriginal communities in this country. The opposition against the omnibus Bill C-45 changes in the Aboriginal community is not just limited to the chiefs; it has mobilized Aboriginal youth as well. Thousands of young people have gathered this week in 13 cities across the country to protest Bill C-45 and the undemocratic nature of these unilateral changes. Under the banner of the Idle No More movement, Aboriginal youth held protests just this past Monday. Over 300 people protested in Manitoba; the crowd swelled to 500 in Saskatoon.

Honourable senators, I was disheartened to hear the minister dismiss this movement as "just social media," on Tuesday. I hope the minister and the government take a good look at what is happening here and realize that the only way forward is through cooperation, true partnership and mutual respect.

The protest continues today. As I stated before in my remarks on Bill C-27, Chief Theresa Spence, from Attawapiskat First Nation, is on a hunger strike just across the way on Victoria Island. Today at noon, there was another protest in support of Chief Spence on the front steps of the Parliament Buildings, and I took part in that. They asked me to speak. The protest continues, and it will continue.

Honourable senators, I stand with the chiefs and Aboriginal youth across the country and urge all honourable senators to vote against the passage of Bill C-45.