Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 8 - Evidence - September 24, 2014
OTTAWA, Wednesday, September 24, 2014
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-428, An Act to amend the Indian Act (publication of by-laws) and to provide for its replacement, met this day at 7:12 p.m. to give consideration to the bill.
Senator Dennis Glen Patterson (Chair) in the chair.
[English]
The Chair: I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples, either here in the room via CPAC or on the Web. I'm Dennis Patterson, senator from Nunavut, and our mandate in this committee is to examine legislation in matters relating to the Aboriginal peoples of Canada generally.
This evening we will begin our study of Bill C-428, An Act to amend the Indian Act (publication of by-laws) and to provide for its replacement. We will hear first from the sponsor of the bill, and I would like to welcome MP Rob Clarke, and witnesses from the Board of St. Kateri Catholic School.
Before proceeding to testimony and questions, I would like to go around the table and ask the members of the committee to introduce themselves.
Senator Moore: Good evening. Wilfred Moore, senator from Nova Scotia.
Senator Watt: Charlie Watt from Nunavik.
Senator Dyck: Senator Lillian Dyck from Saskatchewan.
Senator Tannas: Scott Tannas from Alberta.
Senator Enverga: Tobias Enverga from Ontario.
Senator Ngo: Senator Ngo from Ontario.
Senator Beyak: Senator Beyak from Ontario.
Senator McIntyre: Senator Paul McIntyre, New Brunswick.
Senator Wallace: John Wallace from New Brunswick.
The Chair: Thank you, colleagues. Members of the committee, please help me in welcoming our first witness, who has just rushed over from votes in the House of Commons. Thank you very much for being here. The sponsor of this private member's bill is Mr. Rob Clarke, Member of Parliament for Desnethé-Missinippi-Churchill River in Saskatchewan. He's accompanied by Georganne Burke from his office.
Mr. Clarke, we look forward for your presentation, which will be followed by questions from the senators.
Rob Clarke, M.P., sponsor of the bill: Thank you, senators, for coming out here tonight. It's a beautiful night out there. It's still kind of warm, and it's actually quite warm to walk over here. I think everyone can enjoy our late fall and hopefully we will have an Indian summer.
The Chair: Only you are allowed to say that.
Mr. Clarke: I'm just praying.
Anyway, honourable senators, I would like to thank you for the opportunity to speak here today about my private member's bill, Bill C-428. It has been an honour to draft this bill and to watch it take its final form through outreach to and input from fellow parliamentarians, interested parties and, most importantly, First Nations members from across Canada.
We all agree that the Indian Act must go. I have yet to find an individual willing to defend this fundamentally racist and paternalistic piece of legislation. My private member's bill, of course, does not endeavour to eliminate this Indian Act, leaving nothing in its place. I understand as well, as the honourable senators on this committee do, that the replacement of the Indian Act will be a lengthy and arduous process. I believe, however, that Bill C-428 can lead to a meaningful dialogue on the Indian Act and pave the way to an eventual replacement.
As a proud member of Muskeg Lake First Nations in Saskatchewan, I was born under the Indian Act and no doubt one day will die under the Indian Act. As a member of the Royal Canadian Mounted Police, I was tasked with enforcing the statutes laid out in the Indian Act.
Now, as a member of Parliament, I have the opportunity to do something about the Indian Act. I have spent nearly half my life living as an RCMP member and working on the First Nations I policed and have seen first-hand the demeaning effects this piece of legislation has had on grassroots members of First Nations.
Canada's Indian Act, which was put in place in 1876, served as a model for South Africa's apartheid policy. Bodies such as the Canadian Human Rights Commission and Amnesty International have condemned the Indian Act for its discriminatory, outdated policies dating from the colonial age.
The Indian Act is an impediment to the progress for First Nations as it treats those of us living under its statutes as second-class citizens. Desnethé-Missinippi-Churchill River, or northern Saskatchewan, the electoral district I represent, has the second largest First Nations population among our national ridings, boasting 23 First Nations communities. I cannot fail my constituents by allowing them to continue to be treated as second-class citizens while I stand idly by.
The central notion of the Indian Act, which discriminates against individuals on the basis of race and skin colour, runs contrary to the values that we as Canadians hold dear. There is no question in my mind that there is a consensus of opinion in regard to the Indian Act. Every single candidate for chief in the 2012 Assembly of First Nations, for example, agreed that the Indian Act must be eliminated. Everyone acknowledges that the Indian Act has created economic, societal and cultural barriers.
As I have stated, this bill does not presume to replace the Indian Act. We all know that the replacement of the Indian Act can only be accomplished through a lengthy consultation process involving all affected by, and those administering, the act.
While the elimination of the Indian Act is some distance in the future, we must be brave enough to begin the process towards its elimination right now. Bill C-428 will make the Indian Act a part of the national dialogue. The changes that I'm proposing are an attempt to remove some of the underbrush in the Indian Act, while creating a respectful and modern relationship.
Many of the changes remove unused, archaic, irrelevant and offensive sections of the Indian Act, and changes are practical and incremental, but passing this bill will highlight our shared desire to bring the First Nations people of Canada into a modern era as, at long last, equals.
All changes proposed in my bill have come through direct outreach to members of First Nations. In fact, Bill C-428 went through five versions to arrive at the bill you see today. My original bill would have simply eliminated the Indian Act entirely. I was contacted by many chiefs and community members and grassroots who said that a slower, more incremental approach that put more control back in the hands of First Nations would be preferable.
That is why I propose changes in the bylaw section, changes to dispersal of fines collected by First Nations and changes to the laws around the sale of produce grown on First Nations lands. All of these changes move authority and control back to First Nations where it rightfully belongs, and not ministerial approval.
Communities across Canada are free to create their own bylaws unless those communities are First Nations. This change would put First Nations government on a level footing with all municipal and local governments across Canada.
Band councils are certainly every bit as capable of creating their own bylaws as any town council. To suggest otherwise is the worst kind of institutionalized, paternalistic racism.
My private member's bill would allow a band council to create and enact laws without seeking the permission of the Minister of Aboriginal Affairs and Northern Development. Bill C-428 also ensures that First Nations bands can keep the fines they collect rather than having to turn them over to the Crown.
This small adjustment speaks volumes about changing the paternalistic attitude toward First Nations.
Another extremely meaningful change in Bill C-428 is the removal of the need for ministerial permission to sell produce grown on First Nations lands to anyone off-reserve. This particular restriction has been an impediment to economic development on rich farming lands found on many of the reserves in my riding in Desnethé-Missinippi- Churchill River and throughout Saskatchewan, Alberta and Manitoba.
Throughout the course of this bill's journey to this stage, I have been lucky enough to have received guidance from First Nations members from across the country. On six separate occasions, I have sent letters to more than 600 Canadian First Nation communities. The feedback I have received through this correspondence has been invaluable. Through these channels, in addition to information sessions, national tele-town-hall meetings and informational YouTube videos, I have been able to communicate the details of Bill C-428. Naturally, I have spent a great deal of time discussing the Indian Act and my bill with First Nations members across the country, in both formal and informal settings. This feedback has shaped and refined the bill.
We are willing to acknowledge that parts of the Indian Act have served and could continue to serve First Nations communities as well. Through the process that Bill C-428 mandates, these sections can be maintained. As Prime Minister Harper himself stated, the Indian Act cannot be replaced overnight, but through the use of existing tools and the development of new mechanisms, both parties can create the conditions to enable sustainable and successful First Nations.
Senators, I believe that my bill is one of the mechanisms through which we can bring about positive change. My bill would remove all references to residential schools from the Indian Act. My grandparents attended residential schools, so this particular clause of Bill C-428 is very personal to me. The continuing presence of the term "residential school" in Canadian law is a grim reminder of the cultural destruction experienced by Aboriginal families.
Prime Minister Harper's heartfelt apology for the bitter legacy of residential schools resonated in all corners of this nation, which I got to personally experience and witness in the House of Commons. Let's honour that apology by removing the archaic and hurtful references to residence schools from our nation's laws.
Perhaps, most important, this bill would require the Minister of Aboriginal Affairs and Northern Development to report yearly on the progress made in developing new legislation to replace the Indian Act.
There are some who may wonder why this clause does not set out a process for its implementation. In fact, I wanted to leave it open to the Crown and First Nations to determine how this will work and who will represent First Nations and the Crown. But I was careful to include the word "progress" in this clause to ensure that my intent was clear.
The purpose of Bill C-428 is to find ways to move forward toward limiting the Indian Act. Meeting without progress will fulfill neither the word nor the spirit of the bill. While none of these measures should be viewed in isolation or be seen as momentous, I believe they can start the process toward my goal of freeing First Nations from the Indian Act.
By passing this piece of legislation, we can show the indigenous people of Canada that we understand the concerns and are willing to move forwards toward the dismantling of this outdated and bigoted act. As a parliamentarian, a First Nations member and most of all as a Canadian, I'm excited at the prospect of helping to draft legislation that can bring the relationship between our federal government and the Aboriginal peoples of Canada into the 21st century.
Colleagues, I have no agenda here other than a genuine desire to see First Nations become healthier and more self- sufficient and to see a modern relationship between First Nations and Crown develop. The creation of respectful legislation reflects the special relationship they share. I take very seriously this opportunity to build a better future for First Nations. It is this very reason that I decided to run for office.
Honourable senators, for 138 years, my people have been forced to live under the Indian Act, an outdated document that is a product of 19th-century thinking. The Indian Act, back in the early 1800s, was policy and was turned into legislation. We must be brave enough to aid First Nations members in their efforts to throw this yoke from their shoulders. By passing Bill C-428, we can take the first step toward granting First Nations individuals the right that all other Canadians take for granted. It's time that we all begin thinking and dreaming about the world that we create for future generations of Canadian First Nations members.
Thank you. Meegwetch.
The Chair: Thank you, Mr. Clarke.
Colleagues, we have a limited time for consideration of this from this witness, so I would ask you to keep your questions brief, and we'll try to give everyone an opportunity.
Senator Ngo: Thank you for your testimony, Mr. Clarke. Thank you for being here to talk to us today about your private member's bill and what it means to you and for many First Nations. I also wish to commend you for your efforts for the past few years in finding a working formula for your bill and toward engaging everyone toward eliminating the Indian Act. It seems to me that you have gone to great personal lengths to accomplish extensive outreach.
Can you tell us more about how your outreach works and the different ways you collaborated with the First Nations in order to develop this bill?
Mr. Clarke: First, thank you for sponsoring my private member's bill. When I looked at this journey I'd started — and this goes back to when I was in the RCMP, when I had to enforce the Indian Act — I remember hearing from leadership out there talking about the Indian Act when I was in the RCMP back in the 1990s, when had I to enforce the Indian Act. Having to enforce it was probably one of the hardest things I had to do. Yes, it was law — it was legislation that assisted the RCMP where I came from, living and working on reserves — but also it was so archaic.
I looked at the fines, I looked at everything and I questioned it. Then I heard leadership in band councils, nominations and then at band elections. Everyone talked about removing the Indian Act, and as a band member I listened; I listened to the band members' meetings.
But being a band member from Muskeg Lake First Nations, I know first-hand as a First Nation citizen that it's a law. One of the things I had to do — everyone agrees that the Indian Act has to go. There's a wide range of consensus on that. But no one has the right steps for it. Everyone talks about it, but no one ever does anything.
What I did, when I started running in the nomination in the election in 2008, I spoke with grassroots band members and elected leaders, asking what they thought of the Indian Act. They said, "Get rid of it. You've got to get rid of it. For any type of economic development in society or anything like that, you have to get rid of the Indian Act."
So what I've done during my elections, and I've spoken to hundreds of First Nations, even just hundreds of First Nation leaderships from chiefs and councils coming into my office, I've always asked them, "What do you think of the Indian Act?" Everyone says, "Get rid of it," but no one has a solution.
I sent out six separate pieces of written correspondence to all First Nations communities seeking their input and comment and keeping them apprised of the progress of my bill. I have dedicated a section of my website to the bill and have a survey seeking their input. I invited all First Nations to participate in a telephone town hall on two occasions. I have presented information to First Nations bands and major organization in Saskatchewan, Alberta, British Columbia, Manitoba and Quebec, including Tsawwassen, Muskeg Lake, James Smith, Prince Albert Grand Council, Flying Dust First Nation, English River, among others. I have done presentations to student groups, Aboriginal professionals and interested non-Aboriginals on Bill C-428.
I have met with dozens of individuals, past and present chiefs and grassroots members on my bill. I also ran radio ads with MBC radio in Saskatchewan from August 19, 2012, until present day. I'm presently still doing it. It reaches all Saskatchewan First Nations, Manitoba and Alberta. I've also done a YouTube video explaining the bill, which I've sent out widely to all 600-plus First Nations.
I think one thing I also do, whenever given the opportunity in the media, through news, is I talk to the media and do the interviews on APTN, asking for and telling people what I'm trying to do.
When we're sitting here today and we talk as a First Nations band member, I look at being elected to the House of Commons to represent all constituents, Aboriginal and non-Aboriginal, but I look at the Indian Act as being old and archaic. It's 138 years old. Everyone has talked about doing something, but no one has ever done it.
The Chair: Thank you. Maybe it should be observed that this committee gets government bills all the time. This is a private member's bill. They don't come to us so often. As a private member, the MP doesn't have the resources to consult, compared to the government. That answer is appreciated, Mr. Clarke.
Senator Dyck: Welcome, Mr. Clarke. You have done a lot of work. I congratulate you for that. You've gone through a number of iterations in the House of Commons, had a lot of changes to the bill, and you've now described to us the consultation method that you used. I'm wondering, would you consider that your consultation method meets what is called the duty to consult and accommodate? Because it's a private member's bill, do you have to meet the constitutional requirement to consult and accommodate?
Mr. Clarke: One of the requirements is I sit on the government side, correct, but it's nation to nation, government to government, and the only person who has the means and the responsibility is the government. I may sit and represent individuals or my constituents as a government member, but no, I cannot sit down and do consultations. That has to be elected leadership. That has to be the minister and the department and government. That will be clear there.
I look at the processes. It also includes the provincial governments on duty to consult and accommodate. You look at section 35, and that's laid out there. Hopefully, the policy advisers from the department will be able to explain that better than I can. But in simple terms, no.
I've gone out with my resources, with my limited budget, and I've reached out. It's about information process. What I've tried to do is tell everyone out there in First Nations communities what is taking place, asking for their input and for meaningful change. Have I gone farther than any other MP on their private member's bill in reaching out to talk about their private member's bill? I can't say consultation, because that's not what I did. I was going out educating and talking to First Nations and giving them the information to make their judgments.
I do understand what you're trying to say there. However, with my limited resources, what I've done is used parliamentary resources from the committee stage to bring First Nations in and start the discussion. Let's start a relationship. We're sitting here now and talking about it, and this is an opportunity for First Nations to come and sit down and talk with parliamentarians in the best setting possible. That could probably be used as consultation, but as a private member, I cannot.
Senator Dyck: You've essentially said no, you haven't. My next question is related to that. Your bill does contain some very important issues. Nothing could be much more important than education, which is in part of your bill, and the other part, of course, is amending or replacing the Indian Act.
Since these are really important issues, don't you think they should be a government-to-government change, especially with the Indian Act? You yourself say it governs every aspect of an individual's life. Since the government itself at the Truth and Reconciliation meeting in Winnipeg said they were going to start this with education and with the Crown-First Nations accord, talking about changing the Indian Act, why has it come to you to bring it forward? Why hasn't the government done it?
Mr. Clarke: We are seeing the government take changes through the education act. My bill does not touch education. All my bill does is remove the outdated section of residential schools. What I'm trying to do is prevent any future governments, any future ministers, from implementing residential schools on First Nations territory. That's what I'm trying to do, as I stated earlier. Residential schools are a black mark on Canadian history. I'm trying to remove that clause, not to prevent education. Education is up to government to government, which they've been clear about. What I'm trying to do is remove residential schools so no other First Nation or individual or band member has to be implemented or put into residential schools.
I remember, going back in my RCMP career and living and working on reserves. I was seeing 16 and 17 year olds and having to go to the residence. I get the call at my detachment and I'd have to become a truancy officer under the Indian Act and go to their residence and make an apprehension and return that child back to school. That should be up to the First Nations to make those decisions. That is up to the Crown to work with First Nations in doing a new draft. The government does an opt in, opt out approach on legislation. I'm trying to look at the Indian Act and make it better for all First Nations by just removing the clause on residential schools.
Senator Dyck: I have two questions arising from your answers. One is you said you're going to remove the clauses from the Indian Act that indicate or state residential schools. Which specific clauses are those? While you're looking at that, the second question is that the exact same clauses in your bill are in Bill C-33, the First Nations control of First Nations education act. Those same clauses in your bill are duplicated in a government bill. Why is that?
The Chair: Can you clarify the bill you're referring to?
Senator Dyck: Bill C-33, the First Nations control of First Nations education act, which has now been put on hold. The same clauses are in that bill and in Mr. Clarke's bill, a private member's bill. In fact, in Bill C-33, there are the coordinating amendments to take care of the situation, whether your bill is passed first or whether Bill C-33 is passed first.
Mr. Clarke: It's interesting in regard to Bill C-33. My private member's bill was drafted way before the First Nations education bill. I'll be clear on that. So I have to take onus upon myself and take some pride that my bill was drafted first.
Second, as to the clauses with regard to residential schools, clause 16 removes the right of the minister to set up such schools. Clause 17 removes the ministerial authority relating to school attendance, which I had to enforce. It wasn't pleasant. When I had to attend the residences, there were some situations where, as a police officer, my safety was in jeopardy just for an apprehension, for taking a child to school.
Also, clause 18 removes the right to forcibly remove children from their homes and communities to attend and normalizes the reasons for not attending school, the same ones as for every other child — illness, other unavoidable causes and home instruction.
Finally, clause 19 repeals the definition of a truant officer and removes references to residential schools. Schools are now defined as day schools, technical schools and high schools. That's all I'm trying to do, prevent police officers from being truancy officers and also prevent any current government or future government, any future minister, from putting in place residential schools.
Senator Dyck: If I could clarify, the question I had was this: Which clauses in the Indian Act refer to residential schools? I think the answer you gave to me was the clauses in your bill — clauses 15, 16, 17, 18 and so on. I meant within the Indian Act. Which clauses in the Indian Act say "residential school?"
Mr. Clarke: I believe it's sections 114 to 117, 120 to 121.
Senator Dyck: Those are the clauses, but where is the term "residential school?" You are saying, "I am removing from the Indian Act mention of residential schools," and I'm asking you: "Where is the term "residential school"?
The Chair: While Mr. Clarke is looking that up, for the assistance of the committee, we have arranged for officials from the department to be available to the committee as resources before we conclude our study of this bill. Perhaps your question —
Senator Dyck: This is his bill.
The Chair: That's right.
Senator Dyck: That's why I thought he might be able to answer it.
The Chair: Just for the information of the committee, on the duty of the government to consult.
Senator Dyck: Perhaps I could move on as you're looking. Maybe your assistant could look through it, and we could continue with another couple of short questions. Then, I'll let someone else take over.
Mr. Clarke: These are the sections that I've mentioned earlier that define the residential schools. That's in the Indian Act, sections 114 to 117 and 120 to 121. Department officials will be here too and can probably help to elaborate that even further.
Senator Dyck: Okay. During the drafting of your bill, you talked about consulting with First Nation band members and hosting town halls and so on. Did you consult with officials from Aboriginal Affairs and Northern Development Canada? Did they assist you in the drafting of the bill or the writing of the bill? Did Department of Justice help you out with that?
Mr. Clarke: No. The bill was drafted using the House of Commons legal department. What I've done is taken a common-sense approach to look at drafting the bill. My first draft was very simple. My first draft was to basically start the discussion and gain national attention. What I tried to do is to start a dialogue. I wanted to start the dialogue, start the debate. The first draft was basically, "Let's blow up the Indian Act, and, in two years, force the government to sit down, government to government, with First Nations and do more respectful legislation." In that two years, they would have to come and meet at the table, like we are here today, and draft meaningful, respectful legislation.
My first draft was just to blow it up because that's what all chiefs are saying, "We have to get rid of the Indian Act." When someone actually is, as a member of Parliament, someone who is elected, of First Nations background and sees the archaic, I can't see anyone wanting to maintain the Indian Act. Senator, for yourself, it's overdue. Someone has to do it. I look at the other members of First Nations background who have been appointed to the Senate and also elected, as members of Parliament, to the House of Commons, and I'm bewildered at times because I won the lottery in being able to present a private member's bill, for one, and get it through the House of Commons. I'm the first First Nations person ever to draft a private member's bill and get it passed in the House of Commons. No other First Nations band member has ever done that, especially elected. So I take a little bit of pride.
I also take pride that we're actually sitting down at a table and having a meaningful discussion, actually looking at ways to make the changes. I look at my bylaw, and I look at trying to start First Nations, provide them with their own form of self-governance. We missed that totally. First Nations, right now, do not have that availability for self- governance. Through my process, especially through bylaws, I'm trying to provide First Nations with that opportunity to draft their own bylaws. I look at non-Aboriginal communities, such as municipalities. I look at mayors. I look at reeves. I look at the RMs across Canada, where they have the opportunity to draft their own bylaws. First Nations are treated as second-class citizens, where they do not have the right, and they have to get ministerial approval to draft their bylaws. What I tried to do through this —
Senator Dyck: Thank you for that answer.
Mr. Clarke: — is to bring forward economic and social benefits for First Nations, through, for one, drafting of the bylaws for self-governance.
Senator Dyck: Thank you, Mr. Clarke. You answered the question very early on. I'm just going to follow up with one very short one. Did you consult with the Truth and Reconciliation commissioners since residential schools is part of the bones of your bill? Could you just answer that part?
Mr. Clarke: The Truth and Reconciliation is a different avenue. It's over. It has ended. To be perfectly honest, no.
Senator Dyck: Okay. That's all I needed to know. I'll pass it on.
The Chair: Thank you. Just to assist the committee and Senator Dyck, our Library of Parliament analyst, Martha Butler — And you're a lawyer, aren't you? Yes. — did search the Indian Act for reference to residential schools, so maybe I'll just ask her to answer your question, Senator Dyck: Where in the Indian Act is there reference to residential schools?
Martha Butler, Analyst, Library of Parliament: There are two references. One is in section 115(d), and that section is addressed in Mr. Clarke's clause 15 because it would repeal paragraph (d) of section 115.
The Chair: What does section 115(d) say?
Ms. Butler: Section 115(d) reads: "The Minister may —
Senator Dyck: You're saying section (c), enter into agreements?
Ms. Butler: No, the following one, (d): "The Minister may . . . (d) apply the whole or any part of moneys that would otherwise be payable. . ." So "residential school" is at the end of that sentence.
The Chair: Read the rest of it, please.
Ms. Butler: ". . . moneys that would otherwise be payable to or on behalf of a child who is attending a residential school to the maintenance of that child at that school."
Then the only other reference in the act is under section 122, the definition of school, which includes a day school, technical school, high school and residential school.
Senator McIntyre: Thank you, Mr. Clarke, for your fine presentation. I draw your attention to clause 2 of the bill. Basically it states that the Minister for 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 note that the Senate is left out of the equation. I assume that the reason it is not in the equation is because everything that goes to the house also goes to the Senate. Would I be correct in saying that?
Mr. Clarke: That is correct.
Senator McIntyre: The clause refers to other interested parties and to new legislation to replace the Indian Act. Who are the other interested parties referred to in the clause? What would the framework for replacing the Indian Act look like?
Mr. Clarke: The simple answer is the grassroots band members. All these years we've had First Nation leadership always being able to represent me and chiefs and councils at the national level, but we always forget the grassroots band members who are actually affected on a daily basis by the Indian Act. That's a simple way to look at it — grassroots. We can use anyone who is interested to come forward. You can look at tribal councils and you can even look at APTN if they have individuals they can bring forward to testify or to provide meaningful ideas for change. They can.
My bill is to be all-inclusive for First Nations, from elected leadership of chiefs and councils, right to grassroots band members, in collaboration with government, and have a meaningful dialogue at a table that we're here today to sit down, look at what is outdated or archaic, get rid of this dead underbrush that's affecting First Nations and have it replaced by economic development, and look at trying to do trade and trying to do bylaws. All this hampers First Nations overall.
Senator McIntyre: Would other interested parties be First Nation organizations and bodies that administer services to First Nations?
Mr. Clarke: Correct.
Senator Wallace: Thank you, Mr. Clarke. You've made it very clear that you see this, at least as I understand from what you said, as a process you're trying to start to lead to — at one point I thought the overhaul of the Indian Act, but you later said it's to get rid of it entirely, to blow it up, and something much better is needed for the First Nations people in the country; so you want to start that process.
Bill C-428 addresses certain issues and leaves still, I would think, many other issues in the Indian Act that will have to be dealt with at a later time. Could you give me a sense of the basis on which you decided to address the issues you have included in Bill C-428 while you have left others unaddressed? What was the rationale you used to determine the priorities that you set for Bill C-428?
Mr. Clarke: Coming from an RCMP background, one of the issues was bylaws. First Nations don't have the same rights, as I mentioned earlier, as municipalities. They always have to wait and get permission from the minister to approve the bylaws that they pass. A couple of issues came up in my past career as a police officer. One was I was stationed at Onion Lake reserve where a First Nation community was looking at a production potato farm. They had investors coming through, but it had to go through the bureaucracy and the minister to give permission to grow potatoes and then sell their potatoes off-reserve. By the time the investor finally got the approval, in partnership with the band, that investor walked away because time had passed — a year and a half to two years later — and the investor was no longer interested. That was one.
We see the societal issues of drug abuse in First Nations communities. Being an RCMP member, I remember on check days having to do enforcement. The people in those communities want enforcement. They want police to look after the betterment of the communities. I would be on patrol and I would have people coming up to me and telling me that there are drug dealers around preying on the most vulnerable, the children, trying to sell drugs around the band office, the band halls and around the schools. My job as a police officer was to go out and catch them. I remember some days I would be running down the street trying to catch the drug dealer as he's throwing the drugs out of his pocket and then having to arrest him. He would go through the court process and then the band council would want to do a band council resolution to prohibit that individual from being allowed back on the reserve. But they had to do a band bylaw to forbid them from doing it, and it had to go through the minister to approve. One or two or three years pass by and, like they say, time forgets. That person would still be there preying on the most vulnerable — our youth, our children.
There is another interesting part I want to point out in which a chief actually brought something forward and I had to enforce it, too. It's in regard to the environmental issue of First Nations landfills. They're being polluted by non- Aboriginals or individuals coming on the reserve and throwing their garbage, their toxic waste, on the reserve. Guess what the biggest fine is? It's $1,000.
Provincial standards and federal standards can be implemented by First Nations in the form of a bylaw, which would make the penalty and the cleanup mandatory. These are opportunities that First Nations can do. This is about self-governance. This would get rid of a lot of the problems that are facing First Nations today.
Senator Wallace: As I understand it, Mr. Clarke, there are in excess of 600 First Nation band councils across the country, and obviously there are a lot of opinions, I'm sure, among those band councils. The changes you're proposing would affect the lives of all First Nations people in this country. I would think there would have to be a high degree of support for the provisions from the First Nations people. Can you give us a sense of what you believe is the degree of support? What consensus exists for the support of this bill?
Mr. Clarke: We have 633 First Nations across Canada. You see it through AFN and through their meetings. You have everyone disagreeing or in favour or against. You're never going to have a wide-range consensus. There are people out there — chiefs, councils, bands, First Nations leadership — who like the bill. They feel it's long overdue. My bill will mandate the government to sit down and actually start a process for formal consultations. That's all my bill is trying to do: start a process and let First Nations government and government meet at the table and start a process of consultations. That's what I'm trying to do and mandate on a year-by-year basis for future governments to sit down at the table and start a process.
Senator Enverga: Thank you for the presentation. I heard from you that all bands are different, and then you mentioned something to do with incremental implementation.
Do you think your bill will be able to allow the bands to customize the laws so that they'll be adapted to their own particular community? Do you think there will be a lot of leeway for everybody, or will you plan to have some sort of template for everybody to choose from?
Mr. Clarke: It's up to each individual First Nation what they want to do with their bylaws and what they want to do as a template. All I'm trying to do is provide the avenue where First Nations can actually start governing themselves. You've got a lot of First Nations out there that are under third-party management that actually don't qualify for self- governance.
I'm trying to use that approach through economic development, growing of their own crops and their own trade — who they want to trade with — but also by forming their own bylaws. I feel that could benefit First Nations communities across the country that actually fall under the Indian Act.
That's what my intent is here. I'm not trying to impose anything; I'm trying to allow First Nations to make their own decisions.
Senator Enverga: Is there going to be a governing rule? Are you proposing any rule that will encompass everybody, like a one-size-fits-all rule for your new bill? Will there be something like that, or will it be individualized for every community?
Mr. Clarke: It will be up to each First Nations community as to what they want to do. All I'm trying to do is provide the mechanism through the form of their own bylaws to draft what they want. Currently, First Nations draft their own bylaws, but they have to get ministerial approval. Sometimes that takes one, two or three years to go through the department and get to the minister. But at any time, that could be refused, rejected and sent back to the First Nations community to re-draft, so it's going back and forth.
It's up to that community what they can do. You don't have to reinvent the wheel. First Nations communities can probably look at and steal an idea from another reserve, say Osoyoos, where they aren't using one third of the Indian Act for economic development and benefit by growing their own crops and selling their wine. You see a community grow.
But the same thing happened in Saskatchewan where First Nations in Beardy's wanted to grow their own corn and crops. They want to teach their young children how to live off the land, grow their own crops and sell their produce after. They still had to go through ministerial approval.
Senator Enverga: What will happen if certain bylaws don't reflect Canadian values? Is there a way we can fix that?
Mr. Clarke: If a person wants to contest a bylaw — and it has happened before where bylaws have been challenged — it will go to court, just like every other process.
Senator Moore: I appreciate the work you did and also the passion you have for your bill.
I want to follow up on a question that Senator McIntyre put to you. I think you said that a report tabled in the House of Commons would automatically come to the Senate. I don't think that's quite correct. I think you would have to have that in legislation. So in clause 2, where it requires that the minister report to the House of Commons committee responsible for Aboriginal affairs, what if it said "report to the House of Commons and Senate committees"? Are you okay with that?
Mr. Clarke: The one thing —
Senator Moore: Are you okay with that?
Mr. Clarke: It goes to the house committee as we speak.
Senator Moore: No, I want to know: Are you okay with it coming to the Senate committee, as well?
Mr. Clarke: The one part I'd like to mention is that the lawyers would be able to explain it, because the process is already there.
Senator Moore: I'm old fashioned, and I like to see it written down. If it's not there, they says, "Well, it's not there, so it doesn't say it has to go to the Senate," so it doesn't come.
I would like to see it come to the Senate at the same time. Do you have any objection to that? The Senate goes over these things pretty carefully, and I think it's for the good of the nation that we do that.
Mr. Clarke: I don't want any change to the bill, and when I see it coming to the house —
Senator Moore: We're here to do that work, and this is not complete, because it does not give the Senate an opportunity to look at it. I would like to see that in there.
I'm going to ask you another question. With regard to the outreach and the 633 bands of First Nations in the country, did you write to every one of them?
Mr. Clarke: Six times.
Senator Moore: Six times? What was the number of responses you got from them each time you did that?
Mr. Clarke: They were numerous. I didn't keep count.
Senator Moore: You didn't keep count. So the first time you sent out 633, you don't know how many you got back?
Mr. Clarke: No, I don't — not offhand.
Senator Moore: Every time you don't know how many you got back? Something so important as that — we are trying to develop a consensus. If that were me, I would have kept track.
Mr. Clarke: I would estimate probably a couple of hundred responded back.
Senator Moore: And of the 200 you got back, how many were for and how many were against? I would like to look at it in some other way perhaps.
Mr. Clarke: Some individual bands said they would like to write their own bill; then there were others that would want to see the bill go forward, because it was long overdue; and then there were others that wanted to make some minor changes, such as the word of organizations.
Senator Moore: What would be the approximate breakdown of the 200? Some were for, some were against, and some wanted to do it in their own way?
Mr. Clarke: I would say the majority supported the essence of the bill and felt it was long overdue.
Senator Moore: You said that earlier, but I would like to know. This is very important, because it goes to the whole issue of the outreach and the responses. It is 200 of the 600, so you heard from a third, and we don't know — at least you haven't told us — how many were in support, how many were against, and how many would like to do their own thing. Can you give us any kind of a more definite indication there?
Mr. Clarke: You can split hairs with math all you want. The question, though, senator, is that the majority of the First Nations people want change. They're tired of living in Third World conditions and living under the Indian Act, which, senator, you don't have to live under. I may point that out. You have different rights than I do as a First Nations band member. When we sit here and try talking, it's up to a lot of First Nations band members to send everything back. Some First Nations protest by not sending in anything.
Senator, when we look at what's going on, and we look at what First Nations are trying to do, it's about trying to get change.
Senator Moore: I know that.
Mr. Clarke: You look at AFN. When you have meetings per year, and 633 First Nations are supposed to attend and at times only 60 show up? As a band member, and when I elect my leadership, they should be attending, and they should be providing input back to me, but they don't. At times First Nations communities, for one reason or another — are they too busy out there to update us?
Senator Moore: I would suggest, Mr. Clarke, that's why they have elections and change leadership. They have an opportunity to do that.
So you're saying that of the 200 responses you got, maybe 50 per cent of them were for it; is that what you're saying?
Mr. Clarke: Most of them were for some change.
Senator Moore: "Most were for some change." Okay, so a third were for some change.
I'm not trying to minimalize your effort here, but I want to know, because that is very important to my way of thinking.
The Chair: The last person I have on first round is Senator Tannas, unless there's anybody else.
Senator Tannas: Thank you, Mr. Clarke. I'll just follow a little on Senator Moore's line of questioning. Let me ask two related questions.
In the responses that you got back, and in the other consultations that you undertook, did you find any significant — or indeed any — opposition to any specific clauses as they exist in this bill? That's number one.
Mr. Clarke: The one issue that First Nations really had difficulty understanding was wills and estates. That was removed from my private member's bill and studied in committee, and we're still looking at ideas of trying to improve that piece of legislation through the study and look forward to finding ways to fix it.
Senator Tannas: Thank you. You've answered the whole thing. The best evidence of your duty to consult has come with the changes that you've readily accepted to address objections put forward.
Mr. Clarke: Correct.
Senator Tannas: Thank you.
Senator Dyck: Could I just ask for clarification? Was your question if there were objections to the Indian Act or objections to his bill?
Senator Tannas: I was wondering if there were any specifics in the bill that people were pointing to and saying, "I don't like that specific thing." We all know there's this idea that we should wait for a global Indian Act one-shot solution, which we all know won't happen. I wanted to get specifics of his bill, and that's where the question was.
Senator Dyck: He's saying that the wills and estates were things that people objected to.
Senator Tannas: Bingo.
Senator Dyck: In the bill?
Mr. Clarke: One of them.
Senator Dyck: If they objected to it, why did you put it in the bill? I don't understand.
Senator Tannas: But it's out.
Mr. Clarke: I'm glad you brought that up, senators. Wills and estates are very complex.
I'll go back to 2006. I have to tell you this story. In 2006, I was a sergeant in the RCMP. On July 7, I had the most unfortunate call at 9:24 p.m. where three RCMP members were shot: Robin Cameron, who was First Nations, Marc Bourdages and Michelle Knopp. Seven days later, Marc and Robin passed away.
When I went to review my will, I discovered that if my will were contested it would have to go through the minister to make the final decision. No other Canadian has to go through that process of a minister delegating the authority of what should happen with an estate. We're not being treated as equals.
What I would have liked to have seen is for all First Nations, whatever they own or if there are any wills that are contested, to go through the same process as every other Canadian in Canada. That was so simple. Unfortunately, with the language and ownership through certificates of ownership through First Nations across Canada, it makes it very difficult. That's why we have to do the study. That's why the study was conducted. I just wanted the opportunity to have the same rights as every other Canadian, and I think First Nations want that too.
Senator Watt: Thank you for your presentation. What I have heard is a number of things that you have addressed, and I do believe and agree with you that they're very important. In regard to the livelihood of our people across the country, it's about time for substantial improvements to take place.
That said, unfortunately I would have to say that in order for our people, the First Nations, to take the matter seriously, they probably would like if this were not a private member's bill. It should have been a government bill.
Let me switch to another area on which you spent a great deal of time talking about its importance. It's the beginning. It's only the process, focusing on the bylaws: what bylaws can be generated by the minister and what bylaws can be generated by the band council on their own without getting consent from the minister. I believe this is the central nerve of your bill, if I understand it correctly.
Wanting to have a general discussion, and trying to pave the way to concrete, positive steps forward, and accommodating the First Nation and the government in having a good dialogue and go into the depths of the Indian Act, have you considered setting up a table for the First Nations and the Government of Canada to go through the Indian Act thoroughly?
The reason I'm asking this, Mr. Clarke, is because there are a number of people who have gone through comprehensive land claims, some parts of those comprehensive land claims. I'm talking about the Inuit in the North who have relied on — and it's part of their agreement — the enjoyment of a certain benefit flowing out of their agreement. Have you taken those into consideration?
Mr. Clarke: I've taken a lot of things into consideration. This act is 138 years old.
Senator Watt: I'm aware of that.
Mr. Clarke: It was policy that was brought forward back in the 1870s. That was policy brought forward by Aboriginal Affairs, or Indian Affairs at that time. It turned into policy and turned into legislation. We sit here and talk about it and talk about it, but one of the things we have to look at is that for proper consultation to take place, it has to be government to government. I look at the past records of other governments, and they've tried. Every government has failed repeatedly in trying to change the Indian Act.
What I am trying to do is allow another avenue, as a First Nations band member, for positive growth through, one, bylaws, and two, by allowing First Nations to grow and sell their own produce for their own economic development. First Nations are doing this now across Canada in some places — also to remove residential schools — but also allow them to sell to whomever they want to.
The main component of my private member's bill is to legislate government to start a process through meaningful collaboration, sitting at the table, which compels the government on a year-by-year basis. Currently there is nothing there that compels any past, present or future government to sit down with First Nations. We can sit idly by and criticize the process for formal consultation — duty to consult is for government to government — but the one thing that everyone misses about the terminology, the definition of duty to consult and accommodate, is that they sit down at the table but they don't have to agree on the outcome. They could walk away, and that would still be construed as consultation.
Senator Watt: You're not answering my questions.
Mr. Clarke: I believe I have.
Senator Watt: Let me reverse my question and use the four land claims regions which will be impacted by this. Let's say, for example, the James Bay and Northern Quebec Agreement, the Inuit agreement, the Inuvialuit agreement and the Labrador agreement. Have you done studies in those areas? Did you have enough financing to see whether they have something to be concerned about? I'm not talking about consultation here.
The Chair: Senator Watt, I'm not clear. This is an amendment that affects the Indian Act. Are you saying the Inuvialuit?
Senator Watt: Inuvialuit, the Quebec side, the Labrador side and Nunavut rely on a certain provision of the Indian Act to get the benefits for program purposes.
This is how I see where this bill could have an impact. Maybe not this particular bill that you're producing, but when you get the process rolling.
Senator Dyck: The Indian Act isn't all bad.
Senator Watt: Exactly.
Mr. Clarke: That's land claims. My bill deals with specific parts of the Indian Act and doesn't affect the government-to-government relationship in regard to land claims, if I hopefully understood that correctly.
Senator Watt: That's not my interpretation, because I was involved in the negotiations. That's not the way I signed the agreement.
The Chair: We will have another chance to explore that with the government officials in the consideration of this bill, if we could keep that in mind.
Senator Watt: One of the reasons I have some difficulties with the approach that you're taking is I believe during the Crown-First Nations Gathering in 2012, the Prime Minister addressed the single preference of the Government of Canada to work with the First Nations to modernize the Indian Act, not unilaterally repeal or rewrite the legislation. So you're not really in line with what was discussed by the First Nations and the Prime Minister.
Mr. Clarke: What the Prime Minister indicated is you just can't blow up the Indian Act. What it will do is leave a big hole with lots of roots. What I'm trying to look at right now is incremental change of the Indian Act by, first, planting a new tree and letting new roots start. Senator, from what I'm gathering, you're in favour of keeping the Indian Act.
Senator Watt: No.
Mr. Clarke: Thank you.
Senator Watt: I was one of the persons who, over a number of years, have been highlighting that something has to be done in regard to the Indian Act, so you cannot really paint the picture on me to say that I favour the Indian Act. But it's how you do it.
When you're dealing with it on a piecemeal basis, you don't really know where you're going. Don't forget you have the people on the other side of the table that you'll be involved with in the negotiations. So it's very important to make sure we get it right.
That's all I'm trying to say here. I'm not trying to discredit you from the work that you have done. All I'm saying is maybe it would have been better to set up a table to have a general discussion on this matter with the First Nations and the government. That's a government-to-government talk.
Mr. Clarke: Thank you, senator. I agree with you, and this is what my bill does. It sets up the process.
Senator Watt: No.
Mr. Clarke: Thank you.
The Chair: Thank you.
Senator Dyck: Could I have a supplementary to that?
The Chair: We are running out of time. It will have to be brief, because we have other witnesses.
Senator Dyck: I am the critic of the bill, so I would like to ask a question.
Just to follow up with that, you have said that the bill will mandate the government to sit down with First Nations to rewrite the Indian Act, and you're saying now that your bill will do that, but your bill actually only requires the government to report. The process is not outlined in this bill. The process for this collaboration is in the preamble of the bill. It's not in a clause that requires the government to actually sit down. It's a report by the minister. Where is the legal clause that says they must sit down and collaborate with First Nations?
Mr. Clarke: I'll quote what it says:
Whereas the Indian Act is an outdated colonial statute, the application of which results in the people of Canada's First Nations being subjected to differential treatment;
Whereas the Indian Act does not provide an adequate legislative framework for the development of self- sufficient and prosperous First Nations' communities;
Whereas the Government of Canada is committed to the development of new legislation to replace the Indian Act that better reflects the modern relationship between it and the people of Canada's First Nations;
And whereas the Government of Canada is committed to continuing its work in exploring creative options for the development of this new legislation in collaboration with the First Nations that have demonstrated an interest in this work . . .
I think this preamble expresses the intent of the bill and issues with keeping the Indian Act in place.
Senator Dyck: Yes, I agree it expresses the intent, but it isn't a legislated requirement.
Mr. Clarke: That's my hope, for First Nations to come forward and meet, start the process.
Senator Dyck: It's a hope but it's not a legislated requirement. You're saying it is a legislated requirement.
Mr. Clarke: The government will have to sit down and discuss it.
The Chair: Moving along, and I would ask you to be brief, because we do have other witnesses who are scheduled to appear tonight before we run out of time.
Senator Ngo: Thank you, Mr. Clarke. I would like you to provide me the goals of your bill. The first thing is to remove the impediment to trade; the second goal is to let the band publish their own bylaws; and the third one, if I'm not mistaken, is that you asked the government to table the bills, whatsoever, in the House of Commons, in the Senate, within 10 days or 15 days.
Is that the goal of your bill?
Mr. Clarke: To produce the report within 10 sitting days when the house sits, correct.
Senator Ngo: What do you mean by the bylaws, "publish their own bylaws"?
Mr. Clarke: Publishing bylaws is by bringing it forward either by, one, through a local newspaper; two, by a newsletter that's distributed to the First Nations community; or three, the First Nations Gazette; or four, through the use of their own websites. So First Nations can see the bylaws, or if anyone wants to review the bylaws as well that are non-Aboriginal, they'll have the opportunity to review them.
Senator Ngo: Thank you. For the trade, can you elaborate more about the business opportunity goal of your bill?
Mr. Clarke: It's like every other government across Canada and around the world. For a community to prosper, you have to have economic development and trade. One of the most undervalued resources that First Nations have in a lot of areas is very fertile land where they can grow crops and can sell their crops off-reserve.
I'm just trying to get rid of some of this underbrush. It's still in the books that they have to get ministerial approval, but a lot of First Nations still don't do it. I'm trying to provide that opportunity where there will be no questions. First Nations have the right to do whatever they want, whatever they want to grow for economic development. It's about creating jobs and prosperity; it's about training. That's where I look at Howard Cameron back at Beardy's reserve, where he wanted to form a partnership with the Mennonite co-op, about growing their own crops, actually sitting down, doing a farm and selling that produce to the Mennonite co-op in Rosthern and the outlying areas.
Senator Ngo: Thank you for your explanation, Mr. Clarke.
Senator Watt: Let me start off a little bit better this time. I hope that we'll be able to have a bit more understanding with each other, what we're trying to get at. I'm not trying to knock you down from the fact that you're trying to improve the livelihood of First Nations. I'm with you on that, 100 per cent.
But the thing is, how do we go about doing that? One part is a bit unclear to me. When you said "others," when you were explaining, did you mean people that are more ready and then the other groups are not ready? So are you trying to build a provision, a channel for them to be able to advance themselves, not necessarily cover all Aboriginal groups across the country when you're dealing with that? If one tribal council decides, "We are ready to remove ourselves from the Indian Act altogether," are you focusing on that aspect?
Mr. Clarke: What I'm hoping to do here is to let First Nations make their own decisions here. That's what the intent of the bill is. When this bill, hopefully, does pass through the Senate, First Nations will have that opportunity to make their own decisions. I'm not trying to impose anything. I'm not trying to dictate anything. I'm trying to give First Nations their rights to basically self-govern and give them their own opportunity to do whatever they want. In some sections, the Indian Act impedes growth. That's what I'm trying to get rid of.
Senator Watt: Prevents them from moving ahead.
Mr. Clarke: You see the First Nations Land Management Act, where one third of the act removes the Indian Act, and you're seeing the communities that are benefiting. What I'm trying to do is also give the ones who don't qualify to meet that First Nations Land Management Act criteria those same opportunities.
Senator Watt: What would have happened to a group, using as an example the Mohawk, that are basically operating outside of the box? I know their concerns quite well because I do meet with them periodically. I know what their concerns are when it comes to the Indian Act. One of the number one items they're concerned with is the fact that they are not paying taxes just like any Canadian, because they are Aboriginal groups in this country and they don't pay tax. What's going to happen to that aspect of it? If certain groups say, "We don't want to have anything to do with it because we don't want to pay taxes," how do we deal with that when we get to that crunch of the problem?
Mr. Clarke: That's a very complex issue that First Nations and the Crown have to work out, not from my standpoint as Rob Clarke as a band member. That's up to government to government to work out those types of requirements, the same as the government to the provincial jurisdictions that are affected as well.
Senator Watt: We may not be understanding each other clearly enough on this issue. Say a certain group of people, maybe 25 per cent of the First Nations across the country, say, "We can't buy that. It means we're going to have to pay just like everybody else. We're going to be swallowed into the system." That group, 25 per cent of them, say, "This is where we stand. On that account, we don't accept what is being proposed today." Then you end up moving ahead and the government moves ahead to enact the legislation. It becomes law. Where do we go then when we run into a block? It doesn't apply to everybody, but it applies only to certain numbers. What happens now?
Mr. Clarke: My bill doesn't handle taxation. My bill looks at fines imposed by the First Nations community where First Nations can collect the fine monies for the infractions of the bylaws, and then they can spend the money as they deem fit. It doesn't have to come to the Crown. It automatically goes to that First Nations organization or First Nations community. My private member's bill has nothing to do with taxation.
Senator Watt: But there's going to be one law. I would imagine there will be one law for First Nations across the board. How can you have a law here for certain numbers that doesn't apply to others, if it gets to that point? This is what I mean by 25 per cent of the people decide they can't buy this, so we get into deadlock. That is what I'm concerned with here, outside from the other things that I raised.
Mr. Clarke: I'm very clear that my bill doesn't handle taxation laws.
Senator Watt: You're talking about the process. When you're talking about the process of moving ahead, you're going to be touching upon that whether you like it or not. That's the name of the game.
Mr. Clarke: And the process will be set up on a year-by-year basis.
Senator Watt: Anyway, I think we can only say we agree to disagree. Thank you.
The Chair: Thank you, members, for your indulgence. We have one question before we wrap this up and excuse Mr. Clark.
Senator Dyck: Thank you for your indulgence. I just have a technical question. There may be an error in the bill. If you look at clause 4, it talks about subsection 4(3) of the act being replaced by the following, and it reads "Sections 114 to 117," which are the Indian Act education sections, "and, unless the Minister otherwise orders, sections 42 to 52 . . . " I think those sections deal with wills and estates.
Mr. Clarke: It's sections 48 to 52.
Senator Dyck: It says 42. November 20, 2013? What version have you got? Whether it's 42 or 48, do those sections refer to wills and estates? What do they refer to?
Ms. Burke: The sections that refer to wills and estates were removed.
Senator Dyck: Yes, I know, but in this clause, what do sections 48 to 52 refer to?
The Chair: Our Library of Parliament analyst can answer that.
Ms. Butler: Sections 42 to 48 of the Indian Act do refer to wills and estates.
Senator Dyck: Should those sections be mentioned in this clause, or should they be deleted?
Ms. Burke: It's only 48 to 52 in here.
Senator Dyck: It seems like there's an error. Maybe this should have been deleted when you deleted the other clauses.
Ms. Burke: It's not in this version of the bill we're looking at. I don't know what you're looking at. Ours says something different.
Senator Dyck: What is the date of your version?
The Chair: I wonder, colleagues, if we need to get some assistance from our capable staff to make sure we have the latest version of the bill, because my version dated November 20 talks about sections 42 to 52 in clause 4.
Senator Dyck: If that refers to wills and estates and the wills and estates sections have been removed from the original bill, then why are we referring to those sections in this clause? That is the question. Therefore, I think it must be a drafting error.
The Chair: Thank you. We're not finished with this bill tonight.
Senator Dyck: I know.
The Chair: Thank you for pointing that out, Senator Dyck. I would suggest that this is a technical question, and we're going to have the department people come back. We have our capable analyst. Maybe this is an important question that we can examine further on. I'm not sure we're going to shed any light on it at this point. We'll consult.
Senator Dyck: We could alert the appropriate departmental officials ahead of time, and they could come back to us with an answer at the end of the hearings.
The Chair: Okay. We won't let that go. Thank you for bringing that up, Senator Dyck. I'm sorry we couldn't clarify that, but we will before we conclude the discussion of this bill.
Mr. Clarke and Ms. Burke, thank you very much. We will excuse you.
We do have two patient witnesses I would like to call forward, from the St. Kateri Catholic School located on the Blood Indian Reserve in Alberta. St. Kateri has provided the committee with a brief in English that has been sent for translation but could not be made available in French in time for tonight's meeting. Would members be open to circulating the English version only this evening? We will eventually translate it. Would it be agreed we pass that around? Okay, that will be noted.
I would then welcome Dorine Rabbit, Chair of the Board of St. Kateri Catholic School, and Wallace Manyfingers, board member. May I say, while the witnesses are getting settled, colleagues, that we have received a comprehensive brief from you, which we appreciate and which will be circulated. Unfortunately, we are time limited here so we would ask that you provide the highlights to us in your oral presentation. You can be sure we will study this brief, and then the committee may follow up with questions.
Wallace Manyfingers, Member, Board of St. Kateri Catholic School: Thank you for hearing us today. I will be referring to our brief. I guess a summary is in order. We're following up on the petition that was presented by Senator Tardif to the Senate on June 22. We will also be referring to some particulars in the bill. Our main concern is that the petition that was sent in by our band members from the Blood Tribe asked the Senate to do a treaty study with First Nations, particularly on education since this was a priority of all of us, both in the government and as Native people out there. We basically say, senators, please open the doors and let us start to have some treaty dialogue with the First Nations who are now captured by a terrible interpretation of the treaty that these are leonine agreements, and we don't think they are. We believe they are sacred agreements.
We believe that the creator was there with the Bible and our pipes. These are sacred agreements in the biblical tradition. We ask you to look at the treaty study that the Senate itself might take a very active part in meeting with Aboriginal people and trying to get a sense of where to go on this since it's in section 35 of the Constitution.
Our position in the petition, in our band council and in our Treaty 7 tribal council is don't move ahead until you look at the treaty and work with the treaty. This is consistently what we've been saying. We believe that First Nations people have inherent rights to jurisdiction over education. This was there and nobody took it away. Our rights as parents in our communities were violated by provisions of the Indian Act, although the people who wrote them up might feel they were enlightened to remove a parent's rights, to remove rights of tribes to decide on their education system that they're going to use. We believe that Treaties 1 to 9 guaranteed to the First Nations control of their education systems. If you pass a law against that you're breaking the treaty.
The treaty has already been broken. Parliament passed a law saying Indian Affairs can contract with the provinces, religious denominations and schools without the consent of First Nations. We're saying restore that. Let us have a say. You will not have the ultimate say on the education system we have; our Native people do. Do not continue that unilateral authority by the government to decide what's good for us. It's not in the cards.
Parliament has treated us very well, and we're referring to both houses — denying our sun dance, our religious freedom, denying us our potlatches and giveaways, telling us we should stay on a reserve without a permit, without any legal background to the permits to leave the reserve; that was an administrative measure imposed after Riel's rebellion.
Parliament hasn't been very good to us. Remember that. We're expecting better things from Parliament — from both houses. Our tribe has consistently — in the 1948 hearings, in the 1958 hearings and in the other hearings — said our treaty must be respected, and this bill doesn't do that.
We operate a Catholic school on the Indian reserve because of the uncertainty, but this bill removes the denominational rights sections. Currently, three sections in the Indian Act provide for denominational schools that we have relied on. We have had denominational schools since the treaty. We've had the Bible and we have Christianity and many of us are Christian. Yes, we are defending the denominational rights of First Nations, the denominational rights that all Canadians enjoy. Why are you taking these away from us?
We had a position paper in 1974 on Indian control of Indian education and that says retain denominational school rights, let the parents decide, which is what we did on our reserve. We've got close to 11,000 people on our band list, and we've opted out of the Indian Act, out of your sections on elections, and we've reverted to custom. We've never used the land sections of the Indian Act because they are assimilationist. We have our own customary codes and law. Why are you so preoccupied with imposing laws? Let our customary ancestral laws rise and be strong again.
The uncertainty in this bill has damaged our school. The uncertainty in the bill has resulted in, like the band council, if it's not in the national primary and secondary education regulations, denominational school rights, they don't exist. So we're asking that the bill retain the denominational school sections until they are amended. They are symbolic but they are real. They are real in that they grant to us what all other Canadians enjoy.
I'm going to ask Dorine to share the opening and talk about the problems our school is having under this government, under this bill, and under this current system of external administration we kind of hate.
The Chair: Thank you.
Dorine Rabbit, Chair, Board of St. Kateri Catholic School: We started our Catholic school two years ago. The parents and the parish council, the Catholics, wanted that, and so we decided at the parish council meeting to go ahead and try to get a Catholic school. Most of the schools on the reserve are non-denominational. They are public schools, but there are no Catholic schools and a lot of the parents wanted that. I'm a catechist. I teach catechism in the evenings to children for First Communion and other instruction. I've been doing that for maybe 10 to 15 years. It was natural just to start because a lot of parents were concerned that there was no values instruction going on in the public schools.
A lot of our Catholics were sending their kids off the reserve to a separate Catholic school where they had to get up at five o'clock in the morning and get on the bus to go to the Catholic school in Lethbridge and then come back. Then they get back late to us. They said it would be nice to have a Catholic school on the reserve, so we started that. We went to see the non-denominational school board that runs education on the reserve. We went to see them, and I told one of the staff members there or the administrator, "We're planning to set up a Catholic school." He said, "Did you talk to the bishop yet?" I said that we did, and he told us to make a three-year plan. That's part of Alberta Education's criteria to start a school. You have to have a three-year plan.
So we talked to a lot of the separate schools around our reserve and asked if they would adopt us, because we wanted to be a separate Catholic school. But they said, "No, you have your own jurisdiction on the reserve. You can have your own Catholic school. You don't need to come under us as a province."
We took that and said, "Well, that's great." Then we got all our teachers, students and our building, and we followed the building code. We had insurance. We had everything. We qualified under the Government of Alberta to be a school.
We went to see the band council, and the band council said, "Okay. We'll approve your school, as long as you follow Alberta criteria and regulations." We said yes to that, and we did. Our teachers were Alberta-qualified teachers. Our building follows the Alberta safety code. We follow the Alberta curriculum. I just want to say that I'm a teacher and I've taught for over 35 years. The teachers we hire are Catholic teachers. That's what the bishop said: The teachers have to be Catholic. So he supported us as well.
So then we started. But then we didn't have any funding. We had everything, and they gave us a VCR. The band council and the chief and council approved us. But somebody, somewhere, did something wrong. In the band council resolution that they gave us, they called us a private school, and we didn't want to be a private school. Because even Indian Affairs in Calgary said, "Don't be a private school. Private schools are very expensive and everything." And with the problems on the reserve — 85 per cent on unemployment, 85 per cent on social services — private schools are not the answer.
Indian Affairs told us, "Don't be a private school." Then we ran back to chief and council and told them, "Don't call us a private school." So they took out the word "private" and we brought it back to Alberta Education so that we could start our Catholic school. So that was brought there.
But there was no communication. We were forced to become a private school, even though we didn't want it — even though the council wrote down the band council resolution, saying that we were just a school. Alberta Education called us a private school. I don't know why, but that's what happened.
Since then, we haven't been able to get our government funding, which is a treaty right; it is our right, as parents, students and teachers. Our teachers that we hire, that's in the treaty; namely, the treaty will pay for the salaries of the teachers. That's right in our treaty.
We never got our tuition. We went to see the chief and council five times. You can't say we tried to isolate ourselves or anything. We tried to meet with them. The last time we went to see chief and council, I asked the chief, "Tell me, chief: Did you get the money for our students?" And our students and the parents were sitting there. Our separate Catholic school board was there. In front of them all and the teachers, I asked the chief, "Did the band get our school money?" And he sat there and he nodded, "Yes." But they didn't give it to us.
This is the problem. I don't like to laugh, because it's not funny. The parents were concerned, and they told the chief, "Where's our students' money? We want to give that money to the Catholic school so that they can operate." That didn't happen because they gave the responsibility to run education on the Blood reserve to the non- denominational school board, and they didn't want to recognize us as a Catholic school — just like the separate school systems in Alberta. That's what we have.
So we haven't gotten our funding, and we want to ask for your help.
The Chair: Thank you very much for that explanation. The record should show that when the chief was asked if he had provided the money, you indicated that the chief nodded "yes." That won't show up on the record unless I say so.
Thank you for that presentation and for the impressive brief that you've given us. We are unfortunately limited in time. You've certainly got your case on the record.
I'm only going to allow our deputy chair to ask a question or make a comment, in the interest of time. Then, Senator Tannas is an Alberta senator who lives near the reserve and is well familiar with this problem, so we'll give the floor to him. Then, forgive me, colleagues; we are going to have to adjourn.
Senator Dyck: Thank you for your impressive brief and your presentation tonight. I just have one quick question. You've expressed concerns, and I wanted to know: Have you met with Mr. Clarke to discuss your concerns and did he give you any explanation as to why the particular clauses that are being removed from the Indian Act are being removed? Was there any kind of discussion or consultation?
Mr. Manyfingers: No. We're consulting with our MP, but he retired. There was a by-election. We're without an MP. We made clear to the former MP our position on our Catholic school rights, and he undertook to bring it back to the government. But when the bill came out, it just took away our denominational school rights. They promised to take away our residential school references. This thing guts the constitutional rights that we have; this thing eviscerates our treaty rights. It's wrong.
There was no consultation with Mr. Clarke. We've met with his staff. They did promise more information. None was forthcoming.
Senator Dyck: But you asked to meet with him, and you instead met with his staff person?
Mr. Manyfingers: Yes. Sorry, the clauses —
Senator Dyck: I'm just wondering whether Mr. Clarke sat down with you to explain to you or to consult with you as to what your concerns were.
Mr. Manyfingers: We understand the bill. We don't like it. We don't like our religious denominational school rights being removed by someone who happens to have a treaty card.
That's all I'm going to say about that.
Senator Dyck: Okay. Thank you.
The Chair: The last word to Senator Tannas. I am sorry we don't have more time. I hope you understand.
Senator Tannas: Thank you for travelling this distance. We were particularly keen to have you come to speak and get your story on the record. I'm going to figure out how to make this a question, but in the meantime: As I understand it, the right to pursue a religious education is a constitutional right and covers all of us. This particular component of the Indian Act is not the protection that you can rely on. The fact is that religious education can be pursued on the reserve, and the problem that we have and you have is that your chief and council have determined that the religious education that they're going to sanction is through the Lethbridge Catholic school board instead of through the people who are on the reserve. That doesn't seem to be right, especially when they're collecting the money and spending it elsewhere.
This is a serious problem and one, as you know, that I volunteered to act as an intermediary for with the chief and council. I briefed your new member of Parliament, Mr. Barlow, who is also keen to play the same role. We'll do it together, or he'll go or I'll go, whatever it is. We have not been able to secure a meeting, despite your efforts and our efforts.
I would respectfully suggest that your problems are not with this bill. The problems that you have are with your chief and council and with Terry. I'd be interested to know how, specifically, you think that, if this bill were allowed to stand, suddenly you wouldn't have a problem anymore.
Mr. Manyfingers: The problem we have with the bill that is that it doesn't respect treaty rights. It doesn't respect our inherent jurisdiction. It's still oppressive. It's wrong to say that it's an internal matter. The government is saying it's going to remove denominational school rights, senator. Some of the more conservative elements in our tribal council say, "If the government doesn't support it, if it's going to be taken out of the Indian Act, we don't have to do anything." The current Indian Act has three sections that provide for denominational school rights. This takes them out. We've been relying on these sections since 1876. Since the first Indian Act was put in place, it's been there. We believe that, in addition to those constitutional guarantees, we have treaty rights to decide on our own schools and teachers and on the denomination and affiliation of those institutions. This bill does nothing for our treaty rights. It ignores them.
Our plea, senators, is that, if you're going to deal with Native people, if you're going to work with them to give them the advantages of other Canadians, respect your agreements. They are sacred agreements, signed with the Bible. You agreed then. We ask you to uphold what your ancestors promised. We are upholding what our ancestors said. We are peaceful. We don't interfere with settlers. We respect the law of the Crown. What has happened to us? Our treaty rights are gradually being eroded. That's an untenable position to be put in for our Native people. We're asking you: Open the door. Do the treaty study. We believe that, if you look at the treaty, you'll come to see that, yes, we're civilized people who signed the treaty. These were people with their own laws, rules and regulations. Why don't we let that spirit — genius — percolate up into today instead of saying, "Let's turn them into municipalities?" That notion has been rejected since 1969. Don't bring it back.
Do you have a comment, Dorine?
Ms. Rabbit: Yes.
The Chair: It would have to be brief; I'm sorry.
Ms. Rabbit: Alberta Education wrote to us. We became a government school. We got a school number. We got a school code because we followed all of the requirements, but, now, we got a letter saying that we're having financial difficulties and that we can't start our Catholic school. That's really sad.
The Chair: In concluding here, you've had difficulties getting funding for the school with the provisions of the Indian Act that you're concerned about being removed, right?
Ms. Rabbit: Yes.
The Chair: You've had difficulty.
Ms. Rabbit: Yes.
The Chair: The present Indian Act, which has not yet been changed because this bill has not yet been finalized, didn't solve your problems. If I understand, you're saying that, if sections 117 to 121 are removed, it will make it even more difficult for you to solve your problems.
Ms. Rabbit: Yes.
The Chair: Is that a summary?
Ms. Rabbit: It will take away.
Mr. Manyfingers: If I could just add one comment, Mr. Chair. There's a law that's been around since 1876. There are regulations that have been adopted by the Government of Canada, the primary and secondary school regulations, which make no reference to the law. We're asking: Bring the law into the policy. This government has said no. We're asking: What's wrong with a religious, charitable institution operated by our own people — not by Rome, but by us? What's wrong with contracting the education to us? That's stopped by the bill.
I'd like to thank you for your understanding. We don't really mean to come across as radical. My mother, Dr. Helen Manyfingers, who received the Order of Canada in 2000, cautioned us: "Work with them, seek the hearts and minds of people." We're consistently trying to do that, but it has to be reciprocated. Please try to understand that we have these treaties that are in our Constitution. Let's work with that.
The Chair: That's a challenge you've left with us, sir. Thank you very much. We appreciate your trouble in coming here and all the information you've given to us.
With that, your concerns are noted, and they're on the record. Thank you.
Thank you, colleagues. This meeting is now adjourned.
(The committee adjourned.)