First Nations Elections Act

Elizabeth May: Mr. Speaker, I appreciate your earlier explanation as to why it is that the amendments are coming forward at report stage. I appreciate your consideration of the fact that due to a clerical error at committee, we did not receive notice to bring amendments forward at committee.

I must say that I am pleased. I have found that the so-called invitations to committees circumvent rights. I am able, at this point, to speak at report stage to what is a very significant flaw in this bill.

As everyone in the House knows, Bill C-9 initially came to us through the Senate as Bill S-6. It is a first nations elections act. Except for everything I am attempting to amend this morning, it is a good bill. It provides more precision in first nations elections. The bulk of the bill is a result of recommendations that came from first nations themselves, specifically from the Assembly of Manitoba Chiefs and the Atlantic Policy Congress of First Nations Chiefs, which represents the Mi’kmaq, Maliseet, and Passamaquoddy first nations of Atlantic Canada.

Before I move to my amendments, the intent of the good parts of the bill was to provide greater precision, to create set terms, and to provide for those first nations that had already opted in to elections under the terms of the Indian Act. That is worth underlining. The recommendations that came from the first nations themselves were to apply only to those first nations that had themselves already opted in to elections under the Canada Elections Act and not to those many first nations that elect their councils through traditional customs and methods other than under the Indian Act.

In any case, I will set aside the parts of the bill that are acceptable and will focus only on the amendments you have just read before the House of Commons. They both go to correct the mistakes that are found in clause 3 of the bill.

Parenthetically, I want to note that today is international Human Rights Day. Today is the 20th anniversary of the signing of the Vienna Declaration, which brought respect for human rights to the entire community of nations. Why is it relevant that we are looking at a first nations elections act? What about that is relevant to the fact that ironically, today is Human Rights Day?

The problem with this bill and the sections I hope to correct is also found in other bills that have come forward from this administration, such as the bill, not yet tabled, on first nations education. It is also found in bills that have been tabled, such as the NWT devolution in Bill C-15 and this bill, Bill C-9. What they all have in common is a failure to respect the constitutionally enshrined right of first nations to be consulted about changes that impact them directly.

In Bill C-15, in addition to the NWT devolution, which everyone supports, there are substantial changes to the Mackenzie Valley regulatory systems that are part of first nations agreements and treaties, without consultation with or the consent of first nations. This brings to mind that these changes are actually questionable constitutionally under section 35 of the Constitution, as interpreted in many Supreme Court decisions. From the Haida case and the Delgamuukw case to the Marshall case, it is clear that first nations in this country are protected under section 35 of the Constitution. Further, the federal government has a fiduciary responsibility, a constitutionally enshrined obligation, to consult with first nations.

In this case, we have something that is, in my view, outrageous. Under paragraphs 3(1)(b) and (c), there are two ways in which the minister may impose upon first nations, based on his or her own discretion, a different system for elections within the first nation. What could be more critical in touching on the rights of first nations than changing the way a first nation conducts its own internal elections?

These two paragraphs that are objectionable state that the minister may add the name of the first nations to the schedule of first nations that must conduct their elections as under the act. In other words, the bulk of the act is for first nations themselves to opt in and request to be seen under these sections of a new Indian Act procedure found in Bill C-9.

These are the two exceptions that are outrageous. Paragraphs 3(1)(b) and (c) state that the minister may 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 the First Nation; or

(c) 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.


As the Canadian Bar Association aboriginal law subsection has pointed out, the bill does not provide any guidance as to what the corrupt practice might be or what threshold the minister has for making this change.

It is offensive in a couple of ways. One is that it appears to apply to not only those nations that have already opted in to the current version of the Indian Act in their internal elections. It would apply to those first nations that have explicitly not wanted to operate under the Indian Act and that operate under their tradition and custom. Again, what could be more directly a denial of rights?

The United Nations Declaration on the Rights of Indigenous Peoples says very clearly, in article 3:

Indigenous people have the right to self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development.

Article 4 states:

Indigenous people, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal or local affairs…

These changes in paragraphs 3(1)(b) and (c) strike directly at the heart of the United Nations Declaration on the Rights of Indigenous Peoples and further offend the Canadian Constitution section 35.

I would have wished that these sections had been corrected inside the committee, but I hope that today we may give them fair consideration.

What is being proposed in amendment 2, line 9, on page 3 is a proviso to protect those first nations that have been operating under their own customs. The amendment states:

For greater certainty, the Minister may not add to the schedule the name of a First Nation that governs its elections according to the custom of the band, unless such an addition has been approved in accordance with prevailing customary practices.

In other words, self-determination is protected within those first nations that have already decided that they will not opt in under the Indian Act. They will preserve that ability, which is enshrined in our Constitution and enshrined in the United Nations Declaration on the Rights of Indigenous Peoples and is therefore further protected under the Universal Declaration of Human Rights, which today has its 20th anniversary.

I appeal to my colleagues in the House to assess this amendment. It would preserve the right of first nations that are operating their elections under traditional custom to maintain those rights.

The second amendment would deal with this quite discretionary notion of protracted leadership disputes. We have seen instances when the Minister of Aboriginal Affairs, or DIAND, as it was in the past, decides that, for instance, the ministry does not like the way things are going, to use an example, in the first nations of the Algonquin of Barriere Lake. The dispute is real, and the minister ends up taking sides. That is hardly respect for a first nations’ right to self-determination and self-government.

In this amendment, I propose that the minister may not take that step unless, having obtained the opinion of a representative sample of electors of that first nation, those within the first nation are satisfied that they need to have the minister take this step. Otherwise, we have made a mockery in Bill C-9 of first nations rights under our constitution.

We will again do so if we fail to change Bill C-15 for the first nations within the Northwest Territories and some that are affected in neighbouring areas of the Yukon, where the first nations in that area have competing land claims issues. The leadership of the Tlicho as well as the Dene and other nations are appealing to have the bill split apart so that we can proceed with NWT devolution without offending first nations rights.

There is a pattern here with this administration of, bit by bit, chipping away at some fundamental rights in this country that are constitutionally enshrined and further protected by international law.

With the amendments I am proposing, we could pass Bill C-9 in good conscience. We would know that we had contributed to good governance, fairer elections, and clearer terms. However, to pass it as it is would be an insult to first nations, and this House would be violating our own constitution.

André Bellavance: Mr. Speaker, I commend the hon. member for Saanich—Gulf Islands on her speech.

I agree with what she says about accountability, good governance and transparency with regard to this bill. Of course, these are ideas and concepts that we can all agree on. We do not have a problem with the bill so much as the illegitimate way in which the government imposed it on first nations.

I would like to ask my colleague if the governments that usually like precedents so much could not have followed the example of the Government of Quebec in 2002. That was when Premier Bernard Landry of the Parti Québécois signed the peace of the braves with the Cree. Before the government imposed a bill or did anything, there were proper negotiations with the first nations to ensure that the legislation truly came from both nations.

The Conservative government could have followed that example and sat down and legitimately negotiated, nation to nation, with the first nations in order to reach an agreement on this bill. Then we would not be here today talking about the government’s paternalistic way of imposing its views and options on the first nations with regard to good governance.

Elizabeth May: Mr. Speaker, I would like to thank my colleague very much, especially because he helped me this morning by seconding my amendments.

The federal government is clearly imposing its own solutions on the first nations in complete violation of the aboriginal rights entrenched in Canada’s Constitution. The importance, the very unique situation and the rights of Canada’s first nations must be respected.

It is true that the other governments have made an honest effort to negotiate on a nation-to-nation basis in the past. That is how to work together respectfully.

I find it truly appalling that we are here this morning, faced with a bill concerning elections for Canada’s first nations without consideration or respect for their fundamental rights.

Romeo Saganash: Mr. Speaker, I thank the member for Saanich—Gulf Islands for her speech. I should talk about the magnificent riding of Saanich—Gulf Islands, even though it is not as magnificent as mine.

She spoke about International Human Rights Day. I was at the international conference on human rights in Vienna, in order to make the entire world recognize that aboriginal peoples are also peoples, just like all the other peoples on the planet. We have fought that battle for a long time.

However, I would like to come back to an issue that I find to be important in this debate on relations with Canada’s first peoples.

It is an important issue because, at present, we are celebrating the life of the extraordinary Nelson Mandela, who defeated a system that made no sense.

Does my colleague not have the impression that with the Indian Act we are dealing with almost the same system as apartheid in South Africa?

Elizabeth May: Mr. Speaker, I thank my colleague from Abitibi—Baie-James—Nunavik—Eeyou. I am absolutely astonished to learn that he was at the Vienna conference in the earliest days of recognition of respect for international human rights.

It is indeed very ironic that this bill concerning our aboriginal peoples is based to an extent on the apartheid system in South Africa. It is precisely as he said. This is a serious issue for aboriginal peoples, the first peoples in Canada, and for the Government of Canada. We must find another way to work together.

It is clear that we have to reform the Indian Act. The best way of crafting this bill is not obvious, but any changes made to Canada’s legislation on aboriginal peoples must prioritize what the first peoples want and need.

It is unacceptable to propose such a solution as Bill C-9, which was imposed on first nations. Relations are based on respect between the two nations. Relations between the federal government and first nations must be based on respect.

André Bellavance: Mr. Speaker, I am pleased to also take a few minutes to speak to 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. Like my colleague, the leader of the Green Party, we were not asked to submit amendments to the Standing Committee on Aboriginal Affairs and Northern Development. That is why the Speaker has given us permission to discuss these amendments at this point, the report stage.

Bill C-9 provides an alternative to the regime in the Indian Act governing the election of chiefs and councillors in certain first nations. As I said earlier when I questioned the member for Saanich—Gulf Islands, the Bloc Québécois of course fully supports the transparency, accountability and better governance that Bill C-9 provides for.

The problem does not lie in the bill itself or in the improvements that I just mentioned. The problem is the way in which the government imposed its solutions and opinions on first nations. That is what I am going to try to demonstrate, and I am also going to introduce my amendment in the next few minutes.

The Bloc Québécois agrees with the provisions in the bill limiting terms of office for chiefs and councillors to a maximum of four years, stating that the election of a chief or councillor may be contested before a competent court, and setting out offences and penalties. However, we oppose the fact that the Conservative government did not consult the first nations before going ahead with these major changes to the Indian Act. These are unilateral changes. As usual, the government acted paternalistically. When I say the government, I am talking about successive federal governments. The government paternalistically imposes unilateral changes on the first nations when it should know that we must talk, nation to nation, when working with aboriginal peoples.

Everyone agrees that there must be more transparency, not only during elections but also during each elected official’s term of office. The government can give us examples of times when band councils or other councils, chiefs, leaders and councillors—as we see in any population—failed to govern appropriately. That is not the issue. First, as the Green Party member said earlier, this bill originated in the Senate. However, before introducing this bill, the government should have done what the Government of Quebec did in 2002, which I will talk about in a moment. The government should have sat down and talked, nation to nation, in order to come to an agreement and propose changes. The government would have no doubt received the unanimous support of the House for the bill had the bill first been approved by first nations.

However, we cannot do anything without considering the first nations rights affected by this bill, the direct impact this bill will have on the structures in the communities themselves and how that can affect the communities. The first nations are not opposed to the changes proposed by the federal government. They want to be consulted and be involved in the decisions that will have a direct impact on them. That is a dialogue as opposed to a monologue.

We are asking the Conservative government to sit down and have a dialogue, negotiate, come to an agreement with the first nations. We do not want it to have a dialogue of the deaf or a monologue in which it tells the first nations what is good for them. This goes back to what I was saying earlier when I described the attitudes of federal governments since the very beginning. They have shown a paternalistic attitude towards the first nations.

I used the example of the peace of the braves, and I want to come back to that. This was a historic agreement signed in 2002 by the Cree and the Government of Quebec, led at the time by Bernard Landry, the leader of the Parti Québécois. The peace of the braves is a good example. There were some economic improvements for many peoples, but there are still many problems. I am not saying it is a good example because everything was fixed. It is a good example of how negotiation can lead to a formal agreement, so that the people and communities involved agree with the changes being proposed and carried out. The Quebec National Assembly recognized the first nations as nations, and the peace of the braves is an agreement between nations, as Bernard Landry pointed out when he was interviewed by a journalist who was reporting on what had become of the peace of the braves several years later.

I would like to remind the hon. members that Quebec made a commitment to involve the Cree in northern development and give them $4.5 billion over 50 years. In exchange, the Cree put an end to certain land claims. A few months later, Quebec signed the Sanarrutik agreement with the Inuit, which is designed to accelerate economic and community growth in Quebec’s far north.

The peace of the braves and the agreement signed between Ottawa and the Cree of Eeyou Istchee in 2008 brought prosperity to Quebec’s Cree. The 16,000 aboriginal people of James Bay now have some of the highest levels of disposable personal income in Quebec, according to a 2011 article in La Presse.

However, as I said, things are far from perfect. There are still health problems and a housing shortage. There is still an unequal distribution of wealth, despite the fact that some people are better off. Right now, 92% of Cree youth interrupt their schooling before earning their diploma or some sort of certification. As I said, the agreement was not a cure-all, but it is a good example of negotiation. That is the point I wanted to make about the peace of the braves.

I do not understand why governments that, generally speaking, like precedents so much could not have used that 2002 agreement as a precedent to create a bill that is endorsed by the affected first nations.

Now, I want to talk about the Assembly of First Nations of Quebec and Labrador, which long ago developed a consultation protocol that the government is supposed to follow when drafting bills or taking action that affects first nations in Quebec and Labrador.

This protocol includes the duty to consult and accommodate first nations before taking actions that could have a negative impact on their interests. Such actions include the modification or adoption of legislation, policy-making, planning processes, the modification or adoption of resource allocation regimes and the approval of specific projects or resource allocations. A consultation and accommodation report must be prepared.

The protocol also includes the duty to conduct consultation and accommodation follow-up. What is more, as provided in the consultation plan, provision must be made for the establishment, funding and operation of mechanisms for follow-up, mitigation measures and compliance monitoring with respect to the contemplated action.

The first nations have therefore already set out a procedure that should be followed by the other levels of government, including the federal government. It is really unfortunate that the government decided to bypass the Assembly of First Nations of Quebec and Labrador’s consultation protocol. We hope that the implementation of this bill is not harmful to first nations communities.

Members of the House agree that the Assembly of First Nations’ protocol was not followed and that the bill will be passed because the government has a majority. That is why the Bloc Québécois is proposing to amend the bill in order to, at the very least, respect the second part of the protocol, which involves assessing the bill’s impact on first nations communities. We are therefore proposing the following amendment to clause 41.1:

Within one year after the coming into force of this Act and every three years thereafter, the Minister must prepare a report on the implementation of this Act and its effects on elections of band councils and elections on reserves.

I would like to once again speak about precedents. People might ask why we are proposing this when such a measure has never been implemented before. However, this type of measure has been implemented before in Bill C-21, which pertained to the repeal of section 67 of the Canadian Human Rights Act and affected first nations. At the time, the government had a minority. The opposition required that the changes be reviewed every five years and the bill was passed by a majority vote. A precedent therefore exists.

In closing, we would have also liked to introduce funding and mitigation measures, but unfortunately, they would have been deemed inadmissible. However, we would like to take this opportunity to urge the government to implement those sorts of measures.