Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 8 - Evidence - October 1, 2014
OTTAWA, Wednesday, October 1, 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 6:48 p.m. to give consideration to the bill.
Senator Dennis Glen Patterson (Chair) in the chair.
[English]
The Chair: Good evening. I'd 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 Ottawa in this room or via CPAC or the web.
I'm Dennis Patterson from Nunavut. Our mandate in this committee is to examine legislation and matters relating generally to the Aboriginal peoples of Canada.
This evening, we will continue 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 from one individual, a legal expert, Ian Peach, via video conference. We have available as resource people to us tonight two federal government departments and their officials, Aboriginal Affairs and Northern Development and the Department of Justice.
Before proceeding to the testimony, could I please ask the members of the committee to introduce themselves.
Senator Moore: Good evening. I am Wilfred Moore from Nova Scotia.
Senator Dyck: Good evening. I am Senator Lillian Dyck from Saskatchewan.
Senator Wallace: John Wallace from New Brunswick.
Senator Enverga: Tobias Enverga from Ontario.
Senator Tannas: Scott Tannas from Alberta.
Senator Raine: Nancy Greene Raine from B.C.
Senator Beyak: Senator Lynn Beyak from Ontario.
The Chair: Thank you. Mr. Peach, can you hear us?
Ian Peach, Consultant, as an individual: Yes, I can hear you just fine. Can you hear me?
The Chair: Yes, we can. Thank you very much. I would like to welcome you as a legal expert and former Dean of Law. We look forward to your presentation, which will be followed by questions from the senators. Please proceed. Thank you.
Mr. Peach: Thank you. Good evening, honourable senators. Thank you for the opportunity to speak to this matter. I would say, to begin with, that I'm quite supportive of the intent of the bill as it's articulated in the preamble, to modernize and ultimately replace the Indian Act.
I would say that this particular bill seems a small step in this direction, actually. Nonetheless, it is a step in the right direction. There is some simplification of the Indian Act provisions and certainly some removal of bureaucrats from First Nations decision making and administrative processes. That, to my mind, leads to stronger accountability relationships between the First Nations leadership and their citizens rather than between First Nations leadership and Ottawa.
I'm also very supportive of having the AANDC minister report annually to the relevant Commons committee on work and progress made to replace the Indian Act, as I believe the minister should be accountable to the house for efforts made to replace the Indian Act with more modern legislation or, indeed, with agreements that better reflect our current understanding of the Crown-Aboriginal relationship, the honour of the Crown and the intent and desire for reconciliation between the Crown and indigenous peoples.
I also support the idea in this bill of making First Nations bylaws available to members of First Nations through various alternative means: those of the Internet, the First Nations Gazette or a newspaper with general circulation on reserve. This, to my mind, supports the rule-of-law principle that it should be possible for those who are governed by laws to know what those laws say. Therefore, it supports true accountability of First Nations leadership to their citizens.
If I may go off on a tangent for a moment, I do wish that the First Nations Financial Transparency Act had used the approach proposed in Bill C-428. Requiring financial statements to be posted on the AANDC website does not, to my mind, strike me as necessary or indeed even appropriate for providing accountability of First Nations leadership to their citizens. I see the relevant section of Bill C-428 as a very good effort to build and strengthen those accountability relationships.
I also understand that there is some concern, either from honourable senators or that has been expressed to them, about this bill's removal of the denominational school provisions in the Indian Act. I must say that I'm not particularly concerned by this. Some provinces, most notably Quebec and Newfoundland and Labrador, have eliminated denominational schools, and First Nations are generally too small to have separate Protestant and Roman Catholic schools. So it seems logical and consistent with educational governance reforms that have taken place elsewhere to remove what are, to my mind, very strict and, frankly, in many ways impractical, denominational schools provisions in the Indian Act.
The provisions that are currently in sections 120 and 121 in particular strike me as simply adding increasingly unnecessary complexity to the task of administering First Nations schools.
As I thought about this, though, I went back to section 81 of the Indian Act, which is the section that provides bylaw-making powers to the council. As I thought about it, I thought I might suggest to you for consideration that band councils be given the power under section 81 to make bylaws that, as section 81 says, are not inconsistent with this act, the Indian Act, or with any regulation made by the Governor-in-Council or the minister for the regulation of education on reserve. Such a power would allow First Nations to address the denominational school issue, if it is an important issue for that First Nation, and to enforce attendance at school, whether through truant officers, which this bill proposes to eliminate from the Indian Act, which is just fine, or through alternative means of enforcement of school attendance at the level of the individual First Nation. So, again, this empowers the community to make decisions for the community.
As I look through the bill, that's really all I have to say about it by way of introduction. Thank you for giving me the opportunity to share my thoughts on Bill C-428 with you this evening. I'm happy to answer whatever questions you may have that I am capable of answering.
The Chair: Thank you very much, Mr. Peach. Your insights are appreciated, I know, and I'm sure there will be some follow-up questions from senators.
I'll defer, first of all, to our deputy chair, Senator Dyck.
Senator Dyck: Thank you for your presentation, Mr. Peach. You covered a bit about the denominational schools, and you're saying you weren't concerned that that was sort of a trend that's happening in the provinces anyway.
I don't know whether you've had a chance to look at the concerns that were raised by the St. Kateri School near Lethbridge, Alberta. Are there any other denominational schools like that on reserves in Canada? That may be a question that should be directed to the department, but I'm wondering if you may know.
Mr. Peach: Regrettably, I do not. However, I think giving chief and council bylaw-making powers over the regulation of education on reserve would allow for such particular local circumstances to be addressed by the First Nations community. Because I don't know, it struck me as a reasonable way to address such possibilities.
Senator Dyck: If I understood you correctly, you were saying that under the bylaw-making powers the chief and council could allow such a denominational school to exist on a reserve. Is that right?
Mr. Peach: There is no bylaw-making power at the moment to regulate education on reserve. If such a bylaw- making power were added to section 81, then indeed that could be addressed by chief and council as part of the regulation of education on reserve.
Senator Dyck: I don't claim to understand their position clearly, but I think what they were concerned about was the removal of the provision in section 114 of the Indian Act that allows the Governor-in-Council to authorize a minister to enter into an agreement with religious or charitable organizations. That would mean subsection (e) of that clause would be removed. Under clause 115 of the Indian Act, it would take out subsection (c) that deals with entering into agreements with religious organizations.
If that is taken out of the Indian Act, can a bylaw on a reserve still allow agreements to be made with the minister? If the reserve says they want to make an agreement with the minister could they still do it, despite the fact that those sections are no longer in the Indian Act?
Mr. Peach: I would make two comments on that. First, the band council would likely have the power to make such an agreement as part of its authority to regulate education on reserve. As well, I would think that the Governor-in- Council would have the power to authorize the minister, if it was felt necessary to make such agreements. The constitutional authority of the Governor-in-Council is quite wide under common law, even if not in legislation. I would think that that power would still exist.
I would also note that, as I read sections 114 and 115, they would eliminate the power of the minister to enter into agreements. New agreements would not be authorized by sections 114 and 115 because of the amendments, but it would have no effect on existing agreements.
Senator Dyck: So this wouldn't affect any agreement that they have now?
Mr. Peach: No, it would not invalidate existing agreements, not the way I read what 114 and 115 say now. Existing agreements would still be legally valid.
Senator Dyck: That's interesting. Thank you for that information.
I'm going to move now to another section of the bill that I still don't have a lot of clarity on, so forgive me if I don't explain it very well. It has to do with the special reserves.
The bill is talking about eliminating special reserves.
The Chair: What section is that? Clause 6?
Senator Dyck: I believe so.
The Chair: Just to assist members of the committee, clause 6?
Senator Dyck: Yes. It's going to remove reference in the Indian Act to special reserves.
Mr. Peach: Yes.
Senator Dyck: I'm wondering if you would know what effect that might have. Are there a large number of special reserves now? I believe there are some who think that, if there are special reserves created, it could be a way to augment the addition of land to a First Nation so that it might be a disadvantage to a First Nation if we get rid of special reserves. Do you have any insights into the impact of that particular clause?
Mr. Peach: I have not studied the matter of the extent to which we have special reserves in this country, I will admit, but, again, I think the new subsection 36.1 proposed in the bill would be strictly prospective. So any special reserves that exist as of passage of this bill would continue to exist, and it would simply be the case that, where lands are considered for special reserve status in future, that would not be possible.
I will say as well, from my years in a previous life, shall we say, in the Government of Saskatchewan, where we did treaty land entitlement, I think First Nation, federal and provincial governments have become sufficiently familiar with such additions-to-reserve agreements and processes, such as treaty land entitlement in Saskatchewan, that I don't see such processes to create reserves, as we understand them, rather than using a special reserve provision, to be such a great challenge.
Senator Dyck: Thank you. I am from Saskatchewan, and I know the treaty land entitlement process there has worked very well. I recognize that there are efforts to replicate that in other provinces across the country because I think we were probably the first to undergo and have such success.
Mr. Peach: Yes, I believe so.
Senator Dyck: So that special knowledge may not be as well-known across the country as it is in Saskatchewan, but I thank you for that answer.
To move to some of the other comments, you were talking about clause 2, I think it is, that mentions the reporting to the House of Commons committee?
Mr. Peach: Yes.
Senator Dyck: You were saying that that was okay and that it was a mechanism whereby there's an accountability in helping to move things forward. One of the things that was noted during our study of this bill was that there's no mention of the Senate. Typically, if there is reporting done, we want reporting done to both houses. What is your understanding of the reporting provisions?
Mr. Peach: I believe you are correct, and I certainly have no objection to requiring the minister to come before your committee as well. Again, any processes that build transparency to Parliament over the activities that AANDC has been taking on seem entirely reasonable to me. So, if you wish to see the minister report not only to the House committee but also to your committee, I would be perfectly supportive of that.
Senator Dyck: Thank you. You mentioned that the preamble was good. In the preamble of the bill, the fourth clause is concerned about the intention. It states:
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;
My question would be about the word "collaboration." Is there any kind of legal definition? As a lawyer, what would you think the word "collaboration" means?
Mr. Peach: To my mind, "collaboration" would mean that the officials in AANDC would sit with First Nations leadership and express their principles and interests for modernizing legislation or replacing the Indian Act, as the case may be, and seek their views and attempt, whenever possible, to work together to come to a mutually acceptable resolution.
Now, there are things I would say about that. One is that that may be something of a professional bias of mine because I am an old negotiator, and that is my nature. The other is, because that provision is in a preamble, it, of course, has no legal force and effect. It is a statement to encourage the officials to behave in the most honourable way to build towards reconciliation. In that sense, I think it is an excellent reminder to officials that they have a duty to foster reconciliation with indigenous peoples.
Senator Dyck: Okay. So there is no legal force to that collaboration.
Mr. Peach: No.
Senator Dyck: If the word "consultation" had been used, there still would be no legal force because it's in the preamble.
Mr. Peach: Correct.
Senator Dyck: In general, in a private member's bill, as there usually are in government bills dealing with First Nations, there usually is some kind of non-derogation clause that talks about the duty to consult. Do you think there should be a similar kind of thing? You're saying there should be something that should reinforce the principles or the honour of the Crown, but do you think a duty-to-consult phrase or clause should be part of the bill?
Mr. Peach: I would say that it certainly would not hurt as a reminder. The more textual references we get in our body of law to that obligation the better. It certainly would not hurt as a reminder. The fact that it does not exist in the bill has no effect because our constitutional law trumps legislation, and our constitutional law says the duty to consult exists.
Senator Dyck: Okay. Just following along that train, in clause 2, which is sort of the follow-up to that preamble to collaborate, it talks about reporting to the House of Commons committee on the work undertaken by the Aboriginal Affairs department in collaboration with First Nations and other interested parties.
I'm wondering: If we replace "collaboration" here with "consultation," would that be an improvement? Because "consultation," I believe, has a more defined meaning.
Mr. Peach: Indeed. I'm not sure, as I think about it now, that it would make any meaningful difference. I see them in this context as essentially synonymous, but certainly it does no harm to replace "collaboration," a more general term, with the better legally defined term "consultation."
Senator Dyck: You see them as synonymous because you're saying that, above all, the constitutional law trumps whatever is in this act, as I understand it.
Mr. Peach: Indeed. I think in the context in which it's phrased in clause 2, "collaboration" and "consultation" are effectively synonymous.
Senator Dyck: From the perspective of some First Nations, I think the reason to put in the non-derogation clause is just a way of reinforcing that, so even though constitutional law is supreme, the addition of a non-derogation clause is a reminder. Is that what you're saying?
Mr. Peach: Indeed. That's exactly what I think. The more often in legislation, in our body of law that deals with the relationship between the Crown and indigenous peoples, we remind those who read the legislation and the bureaucrats who are responsible for effectively implementing it that they have a duty to consult, the better.
Senator Dyck: As the final question for this round, on this same clause, on clause 2, it indicates that the collaboration is with First Nations and other interested parties. In constitutional law, when you talk about "consultation," does that include other parties?
Mr. Peach: The legal duty to consult is with Aboriginal peoples and that is all.
Senator Dyck: Right.
Mr. Peach: But one can engage in consultation with Aboriginal peoples to fulfill the duty to consult and with other interested parties in a more generic sense of the word consultation.
Senator Dyck: When you interpret this bill, then, the other interested parties don't have the same standing. Would that be how it's interpreted?
Mr. Peach: That is right. They do not have a legal right to be consulted in the same way that Aboriginal peoples do, that the Crown has a duty to consult with Aboriginal peoples.
Senator Dyck: If they don't have that legal right, wouldn't it be an improvement to take that phrase out?
Mr. Peach: I would say in the context of section 2, requiring the AANDC minister to report on work done in consultation with First Nations or —
Senator Dyck: It says "collaboration."
Mr. Peach: Indeed. I was thinking if we made the first change that you proposed to go to consultation, in consultation with First Nations or in fulfillment of their duty to consult with First Nations, and in consultation or collaboration, as the case may be, with other interested parties, requiring the minister, the executive branch, to report to Parliament on more rather than less is always a good thing, to my mind.
Senator Dyck: That's it for me for the first round.
The Chair: Thank you. There was a little latitude given there, Senator Dyck.
Senator Enverga: Thank you for your presentation. I heard you said that it's fine to take out the denominational rights clause on the Indian Act and not put it there. Did you say that? I am wondering, if ever a band member decides to have a denominational right, it's a constitutional right, so will the band be forced to have one for the community?
The Chair: You're talking about the right to denominational schools, Senator Enverga?
Senator Enverga: Yes.
Mr. Peach: I would suggest that the right to denominational schools on reserve is a right established only by the legislation. It's not a constitutional right in the same way that section 93, if memory serves, of the Constitution Act 1867 creates denominational school rights in the provinces. I think there is a critical difference there.
Senator Enverga: It's a totally separate bill. The Constitution is totally different. It's still a fact, though, the denominational right of the community First Nations; right?
Mr. Peach: Indeed, I think they are different things. I think section 93 of the Constitution Act 1867 only seeks denominational school rights and regulation within provinces rather than on reserves.
Senator Enverga: Thank you.
The Chair: Thank you. Maybe I'll just ask a question. Mr. Peach is a legal scholar who has focused on constitutional law, Aboriginal law and policy, and federal and intergovernmental relations over his long career. He has been a Dean of Law at UNB and has worked in Aboriginal self-government in Saskatchewan and also with the federal government with the Federal Interlocutor on Metis and non-status Indians. With that background, we're pleased to have you at our committee tonight.
I wanted to ask you for further comment on your opening remarks that you see the intent of the bill and you're supportive of the intent of the bill to modernize and ultimately replace the Indian Act. You called it a small step, I believe, in this direction.
We've heard it stated by the proponent of the bill and others that there is almost no one that disagrees with the need to remove or substantially replace the Indian Act. There have been efforts over the years I'm sure you're familiar with to radically alter or even gut the Indian Act. You described this bill as a small step in that direction.
Would you have any comments on whether it is better to make incremental progress in modernizing the Indian Act or whether, as a witness before our committee at our last meeting argued, piecemeal is not appropriate and there should instead be a dialogue engaging with First Nations to fully engage them in a process that would lead to radical surgery on the Indian Act and its modernization? You've supported this first step. Does that mean that you would be in favour of the more incremental approach that this bill in a small way represents?
Mr. Peach: Actually, I would suggest the two things you describe are not mutually exclusive. If I could wave a magic wand and have the world as I like, I would like to replace the Indian Act entirely with a series of comprehensive, negotiated self-government agreements with First Nations across the country, but that does not happen all that frequently, and it certainly does not happen overnight. When I was in the government of Saskatchewan, I spent seven years at the self-government table with the Federation of Saskatchewan Indian Nations to get to an agreement in principle. We never did get to a final agreement, unfortunately. These are long processes.
While those things are ongoing — and I firmly believe they should be ongoing — such incremental steps as Bill C- 428 to make practical alterations where one can seem entirely reasonable. They would only be unreasonable if the government believed that that was all that was required, because it's not. But it adds value. It is part of a process of modernization, so I have no argument with making these incremental changes while attempting to do something more comprehensive.
The Chair: Okay; so it doesn't have to be either or.
Mr. Peach: No.
Senator Raine: Thank you very much for being here. You have a wealth of experience in dealing with policy issues and all kinds of things First Nations, including your legal background.
I'm learning all the time about the processes that we have to go through to make change. I would be really interested in you giving me a short lecture, or the benefit of your experience, on what exactly is meant at all levels by our "duty to consult" and how this evolves. I understand there are implications from the United Nations side of things, plus us and treaties that we have. Could you run through it?
It bothered me greatly yesterday, when I was listening to the Assembly of First Nations saying that we haven't done consultation. That came up again when we were dealing with Bill C-33. It seems to me that consultation process is like a piece of jelly and it means different things to different people.
If I could get the benefit of your wisdom on this, I would appreciate it.
Mr. Peach: I think you've demonstrated a great deal of wisdom on this. We are at a stage where it is still somewhat gelatinous, shall we say, because in constitutional law terms it is relatively recent, 1997; 2003 for the Haida nation. It's a relatively recent concept. Both the Crown and courts are still trying to determine the exact contours of the "duty to consult." It is the Crown's obligation and, to my mind, that means the obligation of the executive branch of government.
However, what you have done as a Senate committee, by inviting the Assembly of First Nations to speak, is a form of consultation in a small "c" sense of the word. Again, I do not personally believe that the duty to consult is upon you as part of the parliamentary branch of government. It is on the executive branch. It is a duty to consult with rights bearers, rights bearing communities, or those delegated the authority to speak on their behalf by those rights bearing communities, on matters that may affect the value and capacity to exercise Aboriginal and treaty rights, the Aboriginal Peoples of Canada. Where there is a potential for a serious interference with their Aboriginal and treaty rights, from a government activity, to accommodate their interests and their rights claims so that the rights, even if just at the stage of being claimed, are proven at some point down the road, they still have value.
It's not very useful to anyone to be told that you have a right to something that no longer exists. That, to my mind, is how the duty to consult operates. It's on the executive branch to ensure that the rights of Aboriginal peoples are not depleted by decisions that the executive branch of government makes in doing other public policies.
Hopefully, that's helpful.
Senator Raine: I think it leads to another question, then. My understanding of the Indian Act is that it came after the treaties were signed. In that sense, it must belong in the Parliament's purview to change it. Obviously, you want to make it better, so you need to find out what people want and what works. You can't do that in a vacuum. Am I right? If we want to tinker with the Indian Act, the duty to consult is different from treaty rights.
Mr. Peach: I would suggest that, for what you described and what you are doing, you do not have a legal duty to consult as such. It is, however, absolutely true that you do not want to be making amendments to legislation in a reality-free zone, or in a vacuum, so it is absolutely the right public policy approach, even if not legally required, to engage in consultation.
It's the difference between the legal requirement and the public policy value.
Senator Raine: Thank you.
Senator Wallace: Thank you, Mr. Peach.
When Mr. Clarke, the sponsor of the bill, appeared before us, it was obvious that he would have wished, rather than approaching the Indian Act in an incremental way, that it could have been done in a complete comprehensive approach, with complete changes to the matters covered by the Indian Act. Of course, Mr. Clarke isn't the first one to come to that conclusion. Many others feel the same and there have been attempts made over the years.
Having decided to approach it as he has, in what we might call an incremental approach, he has addressed particular issues that are included in Bill C-428. There are obviously a whole host of other issues in the Indian Act that Bill C-428 does not address.
From what I have heard you say, you generally are supportive, in these circumstances, of this incremental approach. Do you feel comfortable that approaching the changes in this incremental way will not impair the ability of others to later address the remaining issues of the Indian Act, either in total or perhaps in a further incremental way? In other words, if Bill C-428 is approved, it will not limit the ability or impair the ability to make further changes to what would remain in the provisions of the Indian Act?
Mr. Peach: I would say absolutely not. There is nothing in the substance of Bill C-428 or in the process that would impair the ability of either government or the next private member along who cares to make an improvement somewhere else in the Indian Act to bring that forward.
Senator Wallace: If Bill C-428 is approved, I would think that it would add encouragement to Mr. Clarke, or to others, to continue the process. The logjam would seem to be broken. It could positively lead to other productive changes to the act. Would you agree?
Mr. Peach: Indeed. Since I'm not a legislator, either a Member of Parliament or one of your colleagues, I cannot conclusively pronounce on that; but it does make sense to me that it would encourage others to say "Okay, let's try this."
Senator Wallace: Well, any time we can make sense, we try to do that.
Senator Tannas: I want to make sure that I have something straight, Mr. Peach. We were talking about denominational schools and the effects, or not, that this bill might have on existing denominational schools and future ones. Could you just confirm my understanding of what you said?
First, assuming we accept this bill and that we don't have to do anything else, chief and council could still set up a denominational school if they so wish.
Second, nothing in here threatens existing denominational schools, other than residential schools, of which we know none exist.
Mr. Peach: As to the first matter, bear with me just a moment while I find clause 121. As to whether chief and council could set up denominational schools under their own regulatory authority, it would not be possible at the moment because section 81 of the Indian Act does not provide any bylaw-making authority over the regulation of education. My last comment to you was a thought that there may be value in adding that power in section 81.
As I read it, I do not see anything that would bring to an end existing denominational schools. I'm trying to go back through to make absolutely sure that I'm not misspeaking, but I believe it is correct. Yes, I believe that the changes proposed would not affect existing denominational schools on-reserve, to the extent that there are such things; and I do not know how many there are.
Senator Tannas: Effectively, we've eliminated anybody's ability at the moment to create denominational schools on- reserve; and we've grandfathered, if that's the right term, existing schools.
Mr. Peach: Yes, I believe that's correct.
Senator Dyck: I gather we are under a time constraint, so I'll be brief. I'll start with hopefully a simple question.
With regard to residential schools, Mr. Clarke has said that this bill will not allow the minister or the department to set up any new ones. Do you agree with that? Do you see any provisions in the bill that say it can't be done or that any sections in the Indian Act were removed that talked about building new residential schools?
Mr. Peach: I believe that is correct.
Senator Dyck: Can you explain to me how that works?
Mr. Peach: I'm looking for the provision in the current Indian Act.
Senator Dyck: Section 115 is mentioned, referring to paying for the child's education.
Mr. Peach: Right.
Senator Dyck: The next section would be 122 where the phrase "residential school" is removed.
Mr. Peach: Yes. That's right. Bill C-428 would remove all references to "residential schools" from the current Indian Act; so all authority to create such would be eliminated.
Senator Dyck: Okay. In the Indian Act, is there no other reference to residential schools?
Mr. Peach: I do not believe so. As I prepared to speak to you this evening, I did not find such a thing.
Senator Dyck: By deleting that phrase, you can't build such a school — not that we would in this day and age, but I'm just getting at the technicality.
Mr. Peach: I believe that is correct.
Senator Dyck: My more general question goes back to the preamble in clause 2. Mr. Clarke is under the impression that he is requiring the minister to report to the House of Commons committee on the progress undertaken to reform the Indian Act. He said that clause will force the minister to come to the House of Commons and report on the progress that has been undertaken.
Senator Moore: Where's "progress"?
Senator Dyck: Is that how you read the implications of the preamble in clause 2?
Mr. Peach: Yes.
Senator Dyck: Where do you see the word "progress" in the bill?
Mr. Peach: On the work undertaken by his or her department, to my mind, to develop new legislation to replace the Indian Act requires the minister to speak to the efforts and progress made.
Senator Dyck: Well, I guess that's an interpretation.
Mr. Peach: Indeed.
Senator Dyck: There could have been no progress. There could have been no work.
Mr. Peach: Indeed. Because the minister is required to appear every year, if there was no work over the last year, the minister would be required to admit that to the committee.
Senator Dyck: Yes.
Senator Dyck: I have many little technical things to ask about. I wonder if they might be better addressed to the department as opposed to Mr. Peach.
The Chair: We have some resource people available to us.
Senator Dyck: With respect to wills and estates, many of the provisions in the original bill were taken out of the version that we have in front of us; yet we still have a clause 4, which refers to wills and estates. Originally, Mr. Clarke said that he thought the wills and estates provisions referred to sections 48 to 52 of the Indian Act; but our version of the bill says sections 42 to 52 of the Indian Act.
Do you know which sections of the Indian Act should be referred to in that clause, wills and estates? Which sections of the Indian Act refer to wills and estates?
Mr. Peach: I must admit, regrettably, that is a level of detail that I would be unable to answer just at the moment. That would take some study. I am sorry for that.
Senator Dyck: No problem. We can ask the officials that, because they would have all the various versions that we've had in front of us, too.
Senator Ngo: Thank you, Mr. Peach. In general terms, when you see Bill C-428, what do you think of Mr. Clarke's efforts or intention in developing this bill?
Mr. Peach: I cannot speak to the individual's intention, but the effort that I see in this bill is an effort to address a certain number of what I would say have become practical difficulties with the Indian Act, to my mind, particularly in areas where the minister retains a power that's probably excessive and inappropriate in a modern governance regime.
As I said in my opening remarks, some of the changes I see in this bill would remove ministerial oversight to some extent. An accountability to what is, to my mind as a public policy person, a backwards accountability structure. It's accountability from First Nations leadership to the minister and to Ottawa, rather than accountability of the First Nations leadership to their citizens. Clarifying the accountability relationship as flowing from the leadership to those who vote for the leaders strikes me as a positive step in building more democratic First Nations.
The Chair: That's an appropriate note to end on. Thank you very much, sir, for making yourself available to us tonight. It's very much appreciated.
With that, we will excuse Mr. Peach.
Colleagues, as was agreed, we have officials available from Aboriginal Affairs and Northern Development Canada and Justice Canada. Since this is not a government bill, we've asked the second panel of witnesses to be made available for questions from senators. They have not prepared a presentation, but they're available as resource people to us. I'd like to invite the witnesses to come forward.
According to my list, some have been here before this committee previously. They are Mr. Joe Wild, Senior Assistant Deputy Minister, Treaties and Aboriginal Government; Nathalie Nepton, Director, Governance Policy and Implementation Directorate, Treaties and Aboriginal Government; Line Paré, Director General, Settlement Agreement Operations, Resolution and Individual Affairs Sector; Kris Johnson, Senior Director, Lands Modernization; and Chris Rainer, Director, Strategic Policy and Planning Directorate - Education Branch, Education and Social Development Programs and Partnerships Sector.
With them is their colleague from the Department of Justice, Martin Reiher, Acting General Counsel, Acting Director.
Welcome to you all. I don't think I missed anyone.
I'll turn first to the deputy chair, Senator Dyck.
Senator Dyck: You'll probably hear a repeat in some of the questions, and I apologize for that, but it's important to get your perspective on things as well.
I went through the transcript when Mr. Clarke was before the committee, and any questions I had regarding that I then tabulated, so that's the order I'm going to go through them.
One of the things that he said — and I asked this of Mr. Peach — was that this bill removes all references to the residential schools in the Indian Act. The question was, "Is that true?" Are all references gone?
Line Paré, Director General, Settlement Agreement Operations, Resolution and Individual Affairs Sector, Aboriginal Affairs and Northern Development Canada: The answer is yes.
Senator Dyck: He also said that clause 16 and 19 of the bill would prevent the minister from setting up any residential school if the bill is passed. Is that true?
Ms. Paré: It is important to say that Bill C-428 of course would remove all references to residential schools from sections 114 to 122 of the Indian Act. It was these provisions that really permitted the establishment and operation of residential schools and the removal of children from their homes.
Senator Dyck: The truancy provisions.
Ms. Paré: It's also in support of the Prime Minister's 2008 statement of apology. It's also to support the healing and reconciliation of former students and their families.
Senator Dyck: My questions are much narrower. Clauses 16 and 19 are what he said are in. Is that correct?
Do clause 16 and clause 19 remove the rights of the minister to set up residential schools and prevent any current or future government from putting in place residential schools, as Mr. Clarke stated during his testimony to the committee?
Ms. Paré: The repeal of the provision in the Indian Act that is in reference to residential schools was so that the words "residential school" would no longer be in the Indian Act.
Senator Dyck: Yes. My question was, are clause 16 and clause 19, as he said, correct?
Ms. Paré: It is correct.
Senator Dyck: It is?
Ms. Paré: On residential schools, Indian residential schools.
Senator Dyck: Let's look at the bill. Do you have the bill in front of you?
Ms. Paré: Yes.
Senator Dyck: Clause 16 talks about section 116 of the Indian Act by striking out "and" and so on. It talks about attendance. Which version of the bill do you have? What is the date?
Ms. Paré: As passed.
Senator Dyck: Sorry?
The Chair: I think we all should be operating from the bill passed by the House of Commons on November 20, 2013. Senator Tannas?
Senator Tannas: Just a question of clarification. You're looking at a transcript of Mr. Clarke, where he was quoting the wrong sections. Is that what you're saying?
Senator Dyck: Exactly. Thank you for pointing that out. That was part of the intention of putting that question — the idea of saying it's correct when, in fact, it's not correct because he was reading from the wrong version of the text.
I was asking which version of the text you're answering from. It should be from the version that we have, which is from November 20, 2013, whereas he was looking at a version that was different.
The next question that came up in reviewing the testimony was that, during the second reading, it was noted that the Senate was not mentioned in the clause with regard to reporting. It was stated that — I'll get to the page —
The Chair: This is clause 2 you're referring to, Senator Dyck, clause 2 of the bill?
Senator Dyck: Yes. In response, Senator McIntyre noted that. He asked that question and said:
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?
That's what Senator McIntyre asked, and Mr. Clarke said:
That is correct.
Is that correct? Can we get someone from — I don't know; is it the Department of Justice that answers that question?
Joe Wild, Senior Assistant Deputy Minister, Treaties and Aboriginal Government, Aboriginal Affairs and Northern Development Canada: I can't answer the question fully in that I'm not an expert on parliamentary procedure, and I actually think that your research assistants on the committee should actually know the answer to that.
Senator Dyck: I'd like it on the record.
Mr. Wild: What I would say is that everything that gets tabled in the House of Commons becomes a public document and, at that point, any house of Parliament can take note of it, bring it forward and use it as a basis to call witnesses and hear testimony on it if it so wishes.
Senator Dyck: I don't think that's correct. If we are not mentioned, do we have the legal process? I don't believe we have the legal process. If we have a complaint, we can't go forward. You say you're not an expert, so you don't really know?
Mr. Wild: What I'm suggesting is that I think it is within the purview of a committee to determine what areas it wishes to study, within the mandate that that committee has been provided with. If it wishes to take note of a document that is a public document as the basis to conduct a study, it can do so.
Senator Dyck: That's to conduct a study but not to intervene in the normal routine of business.
Mr. Wild: I'm not sure I follow as to how that would fall out from the provision of a report to the House.
Senator Dyck: Okay. I'll just move on.
Senator Moore: Just on that point —
Senator Dyck: Go ahead.
Senator Moore: Thank you, witnesses, for being here. Mr. Wild, do you have any objection to a reference being put into that section asking that the report also be given to the Senate committee responsible for Aboriginal Affairs?
The Chair: Senator Moore, do you mean: Would it be possible to insert a reference?
Senator Moore: Yes. I want to know if he has any objection to that and, if so, I'd like to know what it is.
Mr. Wild: From a departmental perspective, there would be no objection to that. Again, we're not the originators of the bill and we're not the originators of the intent behind the provision.
Senator Moore: Thank you.
Senator Dyck: I just received some additional information on the same topic.
The clause is saying that the minister has to report, but nothing is tabled. You were saying that, if it's tabled, it becomes a public document, but it doesn't say "tabled." Someone else pointed out that it could be an oral report. It could be a written report. It doesn't mean that something is actually made public, so we might not even be aware that that is what's happening.
Mr. Wild: It's vague as to exactly what form the report to the House of Commons committee would take. That could take a myriad of forms. I guess all I'm suggesting is that it would be highly unusual for whatever form that report takes, whether that is the minister appearing before a committee or an actual document being tabled before a committee, to happen in an in camera kind of way. The clause doesn't speak of that one way or another, but, again, the normal conduct of this is that it would be done in a public way. If so, a transcript would be produced. If there was an oral report, that transcript would be available.
Again, the clause isn't specific about any of that. We don't know yet what way the minister would actually go about meeting that obligation, and that would end up having to be, I suspect, a conversation between the committee and the minister as to how it has to be met.
Senator Dyck: It's a conversation between the minister and the committee, which could change as the minister changes. So it's pretty flexible.
Mr. Wild: Again, because the clause is vague, it's not clear as to what would be required in order to meet it. The committee in question in the clause would have to determine whether or not it found whatever form in which the minister attempts to provide the report to be acceptable or not.
Senator Dyck: So, if the clause is vague, how enforceable is it? The private member, Mr. Clarke, told us:
My bill will mandate the government to sit down and actually start a process for formal consultations.
Where do you see in the bill that this is going to happen? Is there anything in there that you can see that will force the government to sit down and actually start a process of formal consultation?
Mr. Wild: I don't see anything in this particular bill that requires a process of formal consultation. The requirement on the Crown to consult is one that emanates out of section 35 of the Constitution Act, 1982.
Senator Dyck: So there is no mandate within this bill, despite the fact that he said several times that there is this mandate that is going to force the government to do this? This bill would not do that is what I think I'm hearing you say.
Mr. Wild: I think the Constitution is what requires it, and what the bill is speaking to is a requirement on the part of the minister to report as to what was done with respect to work with First Nations and other parties on the development of legislation to replace the Indian Act.
Senator Dyck: Still on clause 2, on reporting to the Senate, Mr. Clarke said: "the lawyers would be able to explain it because the process is already there" to report to the Senate. You're saying that, if we look it up because it's a public document, we hope, then we will be able to intervene. But it seems as though you're not an expert in the process, so you might not be able to explain it.
Mr. Wild: My current role isn't to be an expert in parliamentary procedure. What I'm trying to suggest, I guess, is that I don't think there's anything that would prevent any committee of Parliament, whether that's in the House or the Senate, from inquiring into a matter if it wishes to, whether that is inviting the minister to appear before a committee, or whether that's inviting officials to appear before a committee to speak to it. That's all within the purview and power of a committee, regardless of whether a report is provided or not. The committee can do that any time it wishes, as long as it's within the mandate that that particular house of Parliament has charged that committee with.
Senator Dyck: So it's our initiative as opposed to something that would actually be in the bill. There have been other bills where you're reporting to both houses of Parliament rather than just to one house.
Mr. Wild: What I'm suggesting is that, whether or not it's an automatic thing, tabling it or whatever it would be, whatever form it gets reported to the House of Commons automatically means that it is somehow reported to the Senate. That is a parliamentary procedural question that I think needs to be asked of the experts within the Law Clerk's office of the Senate and the house.
What I'm suggesting is that, regardless of the answer to that question, I don't think the way in which the section has been framed it prohibits or puts a bar on the part of the Senate to inquire into the matter. If it wishes do so, it could still do so.
Senator Dyck: I'm not concerned about it preventing us; I'm more concerned about us being part of the regular routine. You're saying that to get the answer to that, we have to go to the Law Clerk in the Senate?
Mr. Wild: I'm suggesting you have procedural experts within the Senate that can answer the procedural question of what exactly happens if something is tabled in the house or whether, however this gets introduced in the house, it actually comes before the Senate. That's all I'm suggesting, senator.
Senator Dyck: I'll skip the next question because it's the same as the other one. He's saying the main component of the bill is to legislate the government to start a process through meaningful collaboration. Do you see any clauses that start a process through meaningful collaboration in the bill?
Mr. Wild: The clause requires the minister to report. That's what the clause requires.
Senator Dyck: It doesn't say anything about starting a process.
Mr. Wild: I don't read it as saying that it commences a process, no.
Senator Dyck: Thank you.
Then we'll move to wills and estates. That was the technical question that I asked Mr. Peach. In the original bill, will and estates were covered in clause 4. He stated that sections 48 to 52 were there, but in our version it says sections 42 to 52. Do those provisions deal with wills and estates, and should it be sections 42 to 52 that are covered?
Martin Reiher, Acting General Counsel and Acting Director, Department of Justice Canada: Thank you. If I may, I would like to address this technical question.
Clause 4 of the bill, version November 20, 2013, is correct in mentioning section 42 to 52. It previously mentioned 48 to 52 because previously the bill would repeal sections 42 to 47, if I recall correctly, and clause 7, which had that effect, has been defeated in the house committee. Therefore, there was a need to amend clause 4 in order to reflect the fact that section 42 to 52 would continue to exist in the act. Therefore, the only effect of clause 4 in the current version is to adjust subsection 4(3) of the Indian Act further to the repeal of certain sections dealing with education.
Senator Dyck: Thank you. So the version that we have is the correct one, 42 to 52. I think that's it for me for now.
Senator Tannas: Mr. Reiher, we heard some pretty clear answers and analysis from Dean Peach. Was there anything that you heard, being in the room, that was not of your understanding of the bill? We asked quite a few questions and covered quite a bit of ground. Was there anything that you heard where you thought, "That's not my understanding?"
Mr. Reiher: This is a very open-ended question.
Senator Tannas: That's why you get paid the big bucks.
Mr. Reiher: I noticed one element that I would disagree with, and it has to do with the ability of a First Nation council to operate or administer denominational schools on their reserve. Actually, there is nothing currently in the Indian Act explicitly authorizing or preventing a First Nation or band council from operating schools, whether of denomination or not, and they do it currently, generally with funding provided by the Government of Canada. Therefore, the repeal of sections 120 and 121 of the Indian Act would have no implication for that.
Senator Tannas: I want to be clear. I think maybe the distinction, and maybe I'm wrong, is that no more would the minister be able to contract the church to run a school, but there would be nothing stopping chief and council from determining that they would like to have a school that teaches Buddhism, if they want, if that's what they choose to do within the context of the curriculum and the running of the school. Is that fair?
Mr. Reiher: That's correct. Band council would have that ability.
The Chair: Just on that, to assist the committee, would anyone know roughly how many denominational schools are in operation on reserves?
Chris Rainer, Director, Strategic Policy and Planning Directorate — Education Branch, Education and Social Development Programs and Partnerships Sector, Aboriginal Affairs and Northern Development Canada: I'm aware of one other in Alberta, Saddle Lake Full Gospel, but we don't keep that record in our registry because it is the choice of the band as to how they want to deliver or administer their education through their community.
Senator Dyck: Supplementary: There may be other schools. Is there an obligation by the department or by Mr. Clarke or by us to find out if there are other schools? Although according to Mr. Peach it's not affecting existing schools, it may affect future schools. Do you agree that it doesn't affect existing schools, but should we not know if there are any other existing schools? I don't know.
Mr. Rainer: It's our view that, if the sections of the Indian Act are repealed, then the bands will still have the ability to hire teachers of the denomination of their choice, to maintain existing separate schools or establish new separate schools, if that is the community's choice.
The Chair: Thank you.
If I may, there have been some questions about special reserves, which are dealt with in clause 6 of the bill, replacing the current section 36 of the act. To assist us, could it be explained how section 36 of the Indian Act is currently operating?
Kris Johnson, Senior Director, Lands Modernization, Lands and Economic Development, Aboriginal Affairs and Northern Development Canada: Section 36 of the Indian Act is really of historical importance only. Very few special reserves ever existed, and efforts were made some time ago to acquire title by the Crown and grant them normal full reserve status. We are not aware of any special reserves that currently exist, though historical record-keeping is imperfect so there may still be some.
It has long been the policy of the government of Canada that it will not create any new special reserves, so the wording suggested in Bill C-428 really would have no practical effect.
The Chair: That's very helpful.
Senator Dyck: Can I follow up on that? I think you said this wouldn't allow any new special reserves, and there were no special reserves right now anyway.
Mr. Johnson: That's right.
Senator Dyck: The representatives from the FSIN were concerned about that, but you're saying there is no basis for the concern because there are none anyway.
Mr. Johnson: We're not aware of any. Even if we were, the wording suggested in Bill C-428 would replace section 36 rather than outright repeal it. As the previous witness was very correct in stating, if there happened to be any existing special reserves, their legal status would remain intact according to the wording provided in Bill C-428.
The Chair: Another subject we have not touched on tonight but which was the subject of a previous meeting is the ministerial disallowance of bylaws. Clause 7 of the bill repeals the minister's power of disallowance of bylaws, which is covered in section 82 of the Indian Act, which is repealed.
To assist the committee, could the current process whereby the minister may disallow bylaws be explained?
Nathalie Nepton, Director, Governance Policy and Implementation Directorate, Treaties and Aboriginal Government, Aboriginal Affairs and Northern Development Canada: Bylaws enacted under section 81 come into force on their own 40 days after they've been enacted and forwarded to the minister for consideration. Once they go the department, they're reviewed and assessed against a couple of elements. For example, we look at whether or not they meet the requirements of section 81. Do they fall within the scope? Are they outside the scope of section 81(1)? We also look at whether or not they contain Charter violations or should be disallowed for other reasons such as social policy-type of reasons.
When First Nations enact their bylaws, they work within the scope of section 81 and they can choose to draft and send them to the department for comments before formally enacting them, or we get them after they have been enacted by the First Nation band council.
The Chair: Could I ask you to go further and then describe how the minister may disallow a bylaw?
Ms. Nepton: Process-wise?
The Chair: What's the current process for disallowing a bylaw?
Ms. Nepton: As I explained, once the bylaw is forwarded to the department, it's reviewed. If there are no issues with it, then it comes into force on its own 40 days after it has been enacted and forwarded to the minister. If it gets disallowed, that takes the form of a ministerial order that formally disallows the bylaw. That gets returned to the band council, with the reasons why it was disallowed.
The Chair: Can you tell the committee how frequently this happens now? That is, how frequently does the minister exercise that authority, roughly speaking?
Ms. Nepton: From January 2006 to February 2014, a total of 721 bylaws were received. Of these, 294 came into force and 43 were disallowed; so 6 per cent of the total amount.
The Chair: Okay. Can you say how long that process takes?
Ms. Nepton: It's 40 days. If the minister has not issued a decision by the fortieth day, the bylaw has come into force. It has to be disallowed by that fortieth day.
Senator Dyck: I'm curious. When you say the minister, in fact you probably have a committee, or whatever, that looks at these, right, or a number of staff people that actually look at these bylaws and they give their opinion to the minister.
Ms. Nepton: That's correct, Senator Dyck. They come into my area and then we review them and make recommendations.
Senator Enverga: With respect to this ministerial order, correct me if I'm wrong, but I've heard that section 32 of the Indian Act has not been enforced by ministerial order. Is that correct?
Mr. Johnson: In 2010, a ministerial order was issued pursuant to section 32 that nullified its effect for all communities that otherwise would have been subject to it.
Senator Enverga: Do you think that Bill C-428 will make it clearer?
Mr. Johnson: The wording of that clause authorizing the minister to nullify or exempt bands from the application of section 32 is fairly vague. After the minister issued that order, the Standing Joint Committee on the Scrutiny of Regulations advised our department that it was their considered opinion that it was an unusual power of a ministerial order pursuant to that section. They recommended instead that a repeal, if that was the intent, would be more appropriate than simply exempting or nullifying that clause by way of ministerial order.
To your question, yes, the repeal proposed in this act would respond directly to that point of view from the standing joint committee.
Senator Enverga: Does it happen normally? Would you be able to provide us with a list or with whatever has been done with the Indian Act?
Mr. Johnson: There are several parts of the Indian Act that provide for ministerial orders. I'm not sure how often orders were issued pursuant to section 32. I can tell you that particular section had not been in force for a very long time. It's a very archaic provision, so the minister, in 2010, felt it inappropriate to use his discretion to exempt all communities from its application. Again, the repeal is a mechanism preferred by the standing joint committee.
Senator Enverga: When you say there was a repeal, was that done or is it the new bill that will come?
Mr. Johnson: Right. What is proposed in the private member's bill would outright repeal those sections rather than nullify them by way of an exemption issued pursuant to a ministerial order.
The Chair: Mr. Johnson, when was it that the Standing Joint Committee for the Scrutiny of Regulations made that recommendation?
Mr. Johnson: I would have to get back to you with a precise date. It wasn't long after the order was issued. It was within a year, I believe.
The Chair: That would be roughly when?
Mr. Johnson: Sometime in 2010 or 2011. I can check.
The Chair: That's fine. It was some time ago that the recommendation was made.
Mr. Johnson: Yes.
Senator Enverga: To follow up with that, we just repealed. Is the question to the minister or to senior officials in your department regarding the authority to set aside parts of an act of Parliament?
Mr. Johnson: If an act provides that power, yes. Generally, you would not be able to simply exempt by way of order the application of a piece of legislation. In this particular case, for whatever reason, when that section was enacted, it did provide an out clause or an exemption power for the minister. I'm not certain how often those kinds of exemption powers exist in legislation. It's not something we have a lot of experience with in the Indian Act.
Senator Enverga: I haven't read the whole of Bill C-428.
Does it have a clause that says you can repeal?
Mr. Johnson: It would repeal the clause that allows the minister to exempt, but it wouldn't be needed because the portion of the act that it would seek to exempt bands from would no longer exist.
Senator Moore: Mr. Wild, I want to pursue a bit the questions Senator Dyck put to you with regard to clause 2 of the bill. I believe you said that it's a vague clause as to the form of the report and whether it should be issued in public or in camera.
I'm here to try to do the right thing for Canada. I want to see good legislation so that people don't have to worry about what it means. This bill is sloppy, at best. I don't want to hear an answer from you saying, "Go ask your law clerk to interpret it for you." That's not really good enough. We can fix that here today. Do you not think it should be fixed?
Mr. Wild: I'm not sure in what manner you want to fix it, senator.
Senator Moore: I want to fix the matter of the written or oral report, and whether it will be issued in public and whether it will be issued in the Senate.
Mr. Wild: Those are all things that if the committee wishes to do, the committee should do.
Senator Moore: Do you think it should happen?
Mr. Wild: I have no personal opinion as to what amendment should be made to clause 2.
Senator Moore: When you went to UNB Law School, did you take legislation?
Mr. Wild: Yes.
Senator Moore: Do you think that's good?
Mr. Wild: I have to answer within the purview of the fact that I'm a public servant; and this is not a government bill but a private member's bill. I have no personal opinion on the quality of the bill.
Senator Moore: Oh right. You're the Assistant Deputy Minister of Treaties and Aboriginal Government and you have no opinion on draftsmanship. It's terrible. You're letting the school down. You're letting the Maritimes down when you answer like that.
I would like to know if it is the policy of the department to get rid of the Indian Act.
Mr. Wild: I think the policy of the department is to work with First Nations communities to find ways to improve socio-economic outcomes and to arrive at treaties and self-government agreements and certainty. Some of that may be possible under a reformed Indian Act; and some of that may mean at the end of the day the Indian Act needs to be ultimately repealed. There is a host of specific policy measures that the government is pursuing with First Nations communities.
Senator Moore: Is the end goal here to get rid of the act or to continue with the message and ongoing work with them to try to make it socio-economically acceptable? We've heard from so many First Nations that they want to get rid of this act. We've heard it from our witnesses. We've also heard that when we've visited communities. Are you going to continue the same way, or do you have a plan to get rid of the act?
Mr. Wild: I can't speak to whether or not the government intends to introduce legislation to repeal the Indian Act.
The Chair: Senator, we have to bear in mind that this is not a government bill. This is a private member's bill, and we've asked these officials to be here as resources to us. I'm not sure it's appropriate to ask them what they think the intention of the bill is for that reason.
Senator Moore: I'm not asking the intention of the bill. We've heard from all kinds of people, whether First Nations people or other persons before us, that we should be getting rid of the act. I want to know from this witness if he thinks that's a good idea.
Mr. Wild: Mr. Chair, as an official of the department I cannot speak to what the future policy intent may be of the government. It would be for the minister to announce that when the minister wishes to announce that. At this time, the department deals with the legislative framework that Parliament has set before it, and that legislative framework includes the Indian Act.
Senator Moore: Thank you.
Senator Ngo: I would like to go back to what you said. I don't agree with you because clause 2 states:
. . . the Minister of Indian Affairs and Northern Development must report to the House of Commons committee responsible for Aboriginal affairs on the work undertaken by his or her department in collaboration with First Nations and other interested parties to develop new legislation to replace the Indian Act.
It's pretty clear that the intention is for the ministers, in collaboration with First Nations, to develop new legislation to get rid of the Indian Act.
Do you agree with that intention in clause 2?
Mr. Wild: The clause requires the minister to report on work undertaken. It requires reporting on work undertaken.
Senator Ngo: That is right. That's why I agree with you on that: undertaken in collaboration with First Nations, which means that the department and the First Nations must have some sort of consultation and so on to develop new legislation to replace the Indian Act.
Mr. Wild: I can't say more than what is on the page, senator. The clause says what it says. It would require the minister to report on the work undertaken by the department in collaboration with First Nations and other parties to develop new legislation to replace the Indian Act. It requires the minister to report on what work has been undertaken to that effect.
Senator Ngo: That's what I said. It's pretty clear. It's not vague at all.
Mr. Wild: The earlier comment that I made about vagueness was about the nature of the actual report in terms of the form it would take. Would it be a written document tabled before the committee? Would it be a matter of the minister or departmental officials on the minister's behalf appearing before the committee? The only reference I was making with respect to "vague" was as to the actual form. What the report has to contain is clear: It has to be about what work has been undertaken.
Senator Ngo: When you said it's vague, I didn't agree with that because clause 2 is very clear — to develop legislation to replace the Indian Act. When you said "vague," it confused me.
Mr. Wild: I apologize if that confused you.
Senator Dyck: We were talking about whether it was "vague" and whether it was replacing the Indian Act. Most of this bill amends the Indian Act. When I read that clause, I was thinking it was an incremental process. We're always talking about this as we're going to start an incremental process, which will be little amendments. Different groups might come forward with different issues that they might want to amend in the Indian Act. That's a very different process than replacing the Indian Act. Is that a different process? In your mind, when you look at this, are you envisioning a series of amendments coming from different First Nation constituencies saying, "I don't like section 99 of the Indian Act"? Because one section of the Indian Act used to say — I don't know if it's still there — only a First Nation member can be buried on reserve, not someone who is not a member, someone might come forward and say, "Okay, I don't like that and I want to amend it," but is that replacing the Indian Act? Senator Ngo, I think your idea was very different than my idea of what that meant.
The Chair: Do you want to try that, Mr. Wild?
Mr. Wild: I can certainly try it, Mr. Chairman. I fear to try it because I'm not sure it will be satisfactory, but I will try.
It's a very hypothetical question, so it's very difficult to answer as to what a possible government approach may be. Without knowing what the government is actually going to do in the future — and we don't know what the government is going to do in the future — it's very difficult to answer as to whether or not a future government proposal would be replacing or amending.
Again, clause 2 is requiring that there be a report on the work that's undertaken to develop new legislation to replace the Indian Act. I think one has to read that with a certain spirit and intent. It's just very difficult to say exactly what that's going to mean in terms of speculating about some future government bill that could get introduced at some future point in time that touches upon provisions of the Indian Act.
Senator Dyck: I noticed that you're Senior Assistant Deputy Minister, Treaties and Aboriginal Government. My next question has to do with the preamble of the bill, the third paragraph: "Whereas the Government of Canada is committed to the development of new legislation to replace the Indian Act" — not amend — "that better reflects the modern relationship between it and the people of Canada's First Nations."
What does "modern" mean? Is there a definition of "modern"?
Mr. Wild: There's certainly no legal definition of "modern" that I'm aware of. So beyond the ordinary dictionary meaning of the word "modern," there's not much more to say about that word.
Senator Dyck: So I'm wondering, would "treaty" be a better word than "modern"? Because it's a treaty relationship between the First Nations and the Government of Canada.
Mr. Wild: The difficulty there, of course, is that not every First Nation community has a treaty, so that's only going to speak to a certain number of communities.
Senator Dyck: Well, then, it could be "modern" and "treaty." Thank you. That's a good idea.
The Chair: Can I just follow up on that, Senator Dyck, if I may?
Senator Dyck: Yes. Sure.
The Chair: Mr. Wild, I think Senator Dyck has suggested that the preamble and what's in clause 2, which talks about replacing the Indian Act, developing new legislation to replace the Indian Act, that that is inconsistent with the character of the bill, which includes some amendments and some repeal of provisions of the Indian Act; that amending the Indian Act, for sure, and repealing sections of the Indian Act is not really consistent with replacing the Indian Act with new legislation.
I guess I'd like to put it to you in a bit of a different way. If we're going to replace the Indian Act, would one of the ways to replace the Indian Act be to repeal the dead, archaic sections that have no relevance in the modern world, such as prohibiting the selling of agricultural produce; such as hiring truant officers to go and seize children who aren't attending school and drag them off to residential schools; or such as taking the toxic words "residential schools" out of the Indian Act? If you're going to replace legislation, would part of that process not be cutting out the deadwood? Is that a view and interpretation of this preamble that would make sense?
Mr. Wild: Certainly, in that, just from a straight kind of legal perspective, the act of removing a provision and replacing it with something else can be the equivalent of developing new legislation to replace the former act. I think it's a bit of semantics to say whether or not you have to, in one fell swoop, repeal the entirety of something. I think the question is whether or not at the end of the day you end up with a piece of legislation that is substantively different than what you started with, regardless of what title it may carry.
There are certainly different ways in which you can go about getting to the end result of having a different legislative scheme than what you started with under a piece of legislation. I'm not going to provide an opinion on whether it's best to do that incrementally or in one fell swoop. Those are all approaches that are available to a parliament.
Senator Dyck: This will probably be my final question. There are obviously different levels of interpretations of what the different clauses mean. Because it's a private member's bill, he indicated that he worked with the law clerks or lawyers within the House of Commons, whatever is available to members of Parliament. Did he consult with anyone or talk to anyone or seek assistance from anyone from the department or from the Department of Justice? Is that available?
Mr. Wild: The "available" question is a tricky question in some ways. I'm aware that there was one technical briefing after the bill had been developed where the private member met with departmental officials in order to get an assessment from departmental officials as to the impacts of the actual provisions, but the department was not involved in the drafting or the crafting of the policy with respect to this bill.
In terms of whether or not the Department of Justice or a department is available to assist a private member in crafting a private member's bill, that's very much a question that depends, to some extent, on the approach that a minister wishes to take vis-à-vis working with a private member.
Typically, normally the answer is no, the department or the Department of Justice would not provide support in drafting private members' legislation. But there have been occasions — and I've been involved in some of those — where, for example, amendments are being crafted by a committee, and ministers have requested that departmental officials assist the committee in that exercise to make sure that everything is done, from a technical perspective, correctly. But most private members' bills are drafted through counsel, either House of Commons counsel or Senate counsel, depending on whether it's a senator or a member of Parliament.
Senator Dyck: So normally Aboriginal Affairs does not provide the legal expertise to help in the drafting?
Mr. Wild: No.
Senator Dyck: Is that the same for the Department of Justice?
Mr. Wild: Normally, no, not on private members' bills.
Senator Dyck: With respect to this particular bill the department has said they are in favour of it.
The Chair: I think that was the government, if I may correct you.
Senator Dyck: The minister said that.
The Chair: Yes. You could say the department, but I think it was kind of political support that was indicated.
Senator Dyck: Yes. The minister made an announcement that he supported the bill.
If the minister says he supports it, do we know whether or not Mr. Clarke actually got any assistance from the department, since the minister is in favour of the bill? You're saying it's kind of an individual situation. Do we know, in this case, whether or not he received any assistance at all?
Mr. Wild: As I mentioned, there was one meeting with officials with a technical briefing after the bill had been drafted where officials were assessing what the implications of the bill were for the department. That's the only briefing that I'm aware of.
Senator Dyck: After that meeting, were there any changes made to the bill?
Mr. Wild: I don't know. I don't think so.
Senator Dyck: There were a lot of changes made, so they would have been made during the scrutiny of the bill by the committee in the House of Commons?
Mr. Wild: I believe the meeting with the officials happened back in 2012, when the technical briefing happened.
The Chair: I think Mr. Clarke indicated that he did receive drafting assistance from the House of Commons law clerk.
Senator Dyck: Yes, he did. He said that he didn't get consult with them. I'm just double-checking.
The Chair: Our meeting is drawing to a close, but Senator Moore has a supplementary.
Senator Moore: This is just further to your questions, chair, with regard to the archaic items that were found by Mr. Clarke included in this bill.
In the course of your department, whoever was working with him with regard to this bill, did you come across any other archaic provisions that should be removed? If they're not here, do you have a plan and a time frame for when they might be and what they are?
Mr. Wild: The technical briefing that occurred with the member was not of that nature. It was simply, in my understanding, reviewing the provisions of the bill as proposed and simply expressing what the impact of those provisions were from a technical perspective. I'm not aware of that or this bill triggering any work to look at whether or not there are other provisions that should be repealed.
Senator Moore: So it didn't cause any of your officials to reflect on some other items that might be appropriately removed?
Mr. Wild: Again, not that I'm aware of.
Senator Moore: Thank you.
The Chair: Colleagues, I think this might have been a little unprecedented to have officials from two departments available to assist as a resource in discussing a private member's bill. I think some of the questions were challenging, but we appreciate you coming and being as forthright as you can be.
With that, I will declare this meeting adjourned.
(The committee adjourned.)