Indigenous and Northern Affairs Committee on Nov. 7th, 2013

[The Chair, Conservative, Chris Warkentin]

Thank you, Ms. Crowder.

Mr. Strahl for the next seven minutes.

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

Thank you, Mr. Chair, and thank you, Minister, for coming to speak to us today.

As you indicated in your remarks, first nations have three options available right now already for conducting their elections for chiefs and councils. They can follow the steps outlined in the Indian Act, in the Indian band elections regulation. They can develop community or custom election codes, or they can hold elections in accordance with the community's constitution under a self-government agreement.

Given that there are already three options available, why do you think that a fourth option, as outlined in this bill, would be beneficial to first nations?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

Our government has brought forward this legislation as a legislative alternative, particularly for those first nations currently operating under the Indian Act, to hold elections under a legislative system that is strong, modern, and comparable to municipal, provincial, and federal election systems in Canada, which they don't benefit from now.

The Indian Act provides for what I can characterize as a cumbersome, inefficient, and unaccountable model which is ripe for abuse. I receive letters in my department all the time, and this has led the first nations across Canada to demand reform, and this opt-in legislative framework would allow first nations seeking to improve governance to opt in and establish a turnkey framework that would allow for stable and accountable electoral systems on reserves.

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

Given all of that, that it will improve governance, and again we talked about electoral abuses and how this would address that, why make it opt in instead of mandatory?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

Well, that's an excellent question. I too share your frustration with instances of electoral instability on reserves. I would like to highlight, however, that the government would rather not interfere in first nations governance. It is our view that generally bands should be self-governing. It is for that reason that we would like to gradually do away with the Indian Act election provisions. However, our government believes that incremental change that responds to the desires of first nations is more effective in the current circumstances than any drastic top-down legislative approach on elections.

That's why we're leaving the decision to individual first nations to choose which election system best suits their needs or their respective communities.

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

We talked a bit about the opt-in provisions. I'm wondering if you could clarify to the committee the procedure that would need to be taken by a first nation should it wish to participate in the new proposed framework. Similarly, is there a process if they opt in and after a few cycles they say they don't like it any more? Are there provisions in the act to allow them to opt out?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

If the first nations wish to abandon this inefficient, paternalistic, and unaccountable Indian Act election framework, under Bill C-9 they would have to follow a relatively simple process.

First, the band councils—I'm sure, because that's the way I see them operate—would consult their own membership. And then they would have to adopt a resolution that would be forwarded to the department, whereupon an order would be made designating the band under the new act and setting the first election date. It's as simple as that.

Historically, we know there have been two ways to opt in to federal legislation relating to aboriginal affairs: a band council resolution or a referendum. Now, the referendum option was considered, but it did not garner much support with the first nations that participated in the consultation process. And because of the experience of first nations, we decided that we'd rather go with their preferred course, which was the resolution and not the referendum.

However, to get out of it once you are under this, the only way you can go is with a custom system that they can do, provided, again, it meets the requirements of the policy in that regard, which ensures that the custom system must respect the Charter of Rights and Freedoms. To get out of this act, this new bill, they would have to go through a referendum that must garner the support of the majority of the electorate in which 50% of eligible voters participate, and it must then be published in either the First Nations Gazette or on the website maintained by the first nation.

[The Chair, Conservative, Chris Warkentin]

Thank you.

We'll turn now to Ms. Bennett for the next round of questions.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Thanks very much, Mr. Chair, and thank you, Minister, for coming before us.

We think this is an excellent example of bottom-up legislation. A lot of first nations have come together to bring this forward to you. Most other first nations we've talked to have seen this bill as basically positive as long as it remains optional legislation. As my colleague pointed out, although Bill C-9 is basically optional, clause 3 clearly provides you with explicit powers to bring first nations currently under the Indian Act or custom code under Bill C-9, which flies in the face of the optional nature of this bill, and it seems to be the primary source of concern for most first nations.

You said in your opening remarks:

This is paternalistic and frankly not a business I think that the minister should be in. This bill would remove the minister from the equation—and would ensure that appeals are dealt with by the courts....

You get that the minister shouldn't be in this business, but clause 3(1)(b) and (c) puts you right back telling first nations what to do again.

Will you remove this clause? It was almost right, and then you put this thing in and alienated all the people who were your original partners. You had a partnership and now they're annoyed. Neither protracted leadership dispute nor significantly compromised governance is defined in the legislation. We're back to the whim of the minister, and you have a very broad discretion about where you can intervene.

Minister, would it make more sense to just remove that one piece and let us get on with the bill, as was the original intent? From the AFN and Regional Chief Wilson-Raybould's testimony, there's a consensus: just get this little piece out and we'll help you get your bill.

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

Listen, I'm going to be really candid with you. When I first saw this, I had about the same reaction you're having. A protracted leadership dispute affects the members of the community. Services cannot be delivered, decisions cannot be made. Housing decisions, infrastructure, people, schools—there's no decision that can be made because there is a protracted leadership dispute that prevents the council from making decisions. So I said, “Is there a way for a judge to decide this?” When you think of it, these are policy decisions. You cannot put the burden on judges to make policy decisions in the running of a band.

This is going to be very, very rare. Under the current Indian Act, this power under 3.(1)(b) has been exercised, I think, only three times. It's very rare. But in those cases where it happens, what do we do? If I took this out, there would be a vide, and then what do we do? The judge cannot do anything about it. So I think we owe it to the membership, to first nation members, to have an escape clause to protect their best interests, and that's what this is there to do.

Under the other one, (c), in the case of a corrupt practice, under the Indian Act the power is already there. I could set the election aside under section 79, and then they'd remain under this act, which is not working. At least, if this happens under the Indian Act, the power will not put them back in a system that is not working. The power is to put them under an act that is sound, and that's the reasoning behind insisting on keeping those there.

If I don't, if I get rid of (b) and (c), I think I create a situation where we're going to have an empty...What do we do when it happens? It's done in the best interests, I believe, of those first nations, and we've discussed this with first nations.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Okay.

Minister, you already have the power to do this stuff. Why are you ruining this bill with a power you already have?

This bill is going to allow you to put people on a schedule they don't want to be on. As Jody Wilson-Raybould said, this is not appropriate because first nations are in a period of transition toward self-government and increased autonomy; the approach should be for governance reform and a collective strategy that creates foundations for good governance. I think this is what Regional Chief Wilson-Raybould said.

It seems that you are just irritating people by reiterating in the bill powers you already have in a way they don't want you to act.

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

If the Atlantic Policy Congress and the former Grand Chief in Manitoba had told us that this would be fatal to the bill, I don't know if the bill would be here today. But under (c) ....

The experience is there.

This bill applies only to those communities that have demonstrated an inability to solve their governance issues. This is not meant for communities that can solve their governance issues.

What do you do with those first nations that cannot resolve their governance issues and you know that the health and safety of the membership of that community are at stake? Under section 91.24, the federal government has the obligation to ensure that, when there is a failure to resolve a governance issue, the minister should be able to intervene.

[Carolyn Bennett, Liberal, St. Paul's, ON]

He can already.

[The Chair, Conservative, Chris Warkentin]

Thank you, Minister.

We'll turn now to Mr. Clarke for the next question.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you, Minister, for coming in today.

I'd like to play a little scenario before you from my past experience. I lived and worked on reserves and was in the RCMP. We had to deal with a lot of the Indian Act, especially in regard to band elections.

Ahtahkakoop is going through some major problems right now. For one, it was at one time under custom, but they didn't have the problem of elections; basically theirs was a template for one of the best elections in place. Lo and behold, what happens? A new administration comes in and we're hearing the first nations leadership using the Indian Act to basically help themselves get elected and keep their powers. They are manipulating the Indian Act in a way that helps them get elected from election to election to election.

Some of the things I've seen in the past include voter fraud, where individuals are paid off and there is basically no recourse for the government to suspend the election. Another thing is when the chief and council elect relatives to be the returning officers. I have a hard time with that.

It gets very frustrating. The band membership.... We're listening to the elected leadership making these changes but we're not hearing from the grassroots. That's what I get really frustrated about.

What we're looking at now is a new opt-in piece of legislation where it has to go to the grassroots members...when the grassroots members bring it forth. I hear the opposition criticize it but what they're really doing is trying to protect the status quo and protect their leadership because they feel that's where the votes are. It's not. It's at the grassroots level, where they need to have proper leadership and representation.

That's what I get really frustrated about.

Having been in the RCMP, having to take ballot boxes, having to keep them for two years locked up in our detachment exhibit lockers waiting for the appeals, for the results to be reviewed by the department...something has to be done.

The leadership protects this whole empire, and that's where it has to go back to the grassroots.

As you know, Minister, I get really frustrated with this whole thing. Some people want to protect the status quo, and the Liberals do it very well, but they don't have a clue. As we all know, the government has a constitutional duty to consult with aboriginals and first nations and the membership. Basically we have to protect the membership.

One of the questions I have is, what was the driving force for this legislation at its inception?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

The first nations who decided, on their own, to seek an alternative to a broken system were the driving force. The act was developed by first nations in partnership with our officials in the department.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

How would you describe the relationship between your department and the first nations in the development of this bill?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

The work was in partnership. The Atlantic Policy Congress and the Assembly of Manitoba Chiefs were the driving force behind the drafting, working with the officials. Those two organizations were driving this, throughout the country, among first nations under the Indian Act.

That's why, as I think was acknowledged earlier, this piece of legislation cannot be characterized as having been imposed by Ottawa upon first nations. It was a product of their full participation, at their urging. That's why I believe this committee should pass this quickly, so it can become law.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

How important is it that this legislation be adopted quickly? We're seeing many cases, right now, being appealed. We're seeing elections being appealed just at the band level.

For instance, I received a petition from over 400 individuals—from Ahtahkakoop, or Sandy Lake, in northern Saskatchewan—400 signatures from a band who want to see major change. Then, once the challenge is brought forward and the chief and council see the petitioners' signatures on it, those individuals are now afraid of repercussion; of losing their jobs, losing their options or opportunities for post-secondary education, or even education as a whole. That's one of the things that has to be addressed: the ultimate power is at the chief and council level, where they can dictate who gets what, or who gets what housing.

Do you think this legislation is important to first nations’ membership?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

Absolutely. This is for the benefit of all first nations that want to take advantage of it, but the particular time in which we live is not to be underestimated.

As I travel all of Canada, on first nations territory, I see all the opportunities and this kind of new sense on the part of chiefs and council and communities to work together. For example, I was in North Battleford in Saskatchewan not long ago, where they pull together, they aggregate, they work together, but then when you have an election every two years, you lose them.

This is politics. You need partners. We talk to the premier and to the ministers. We don’t lose our counterparts in Quebec or Ontario or Alberta every two years. They are there for a four-year term, and usually you have a long period.... It's the same thing with first nations. I think that will help first nations to work together much more effectively. Those who opt for a four-year term will have the time to implement change. I think the membership will have full confidence in their council because the election will have been fair, transparent, and accountable. I think that's important for the membership of first nations.

[The Chair, Conservative, Chris Warkentin]

Thank you, Minister.

We'll turn now to Mr. Genest-Jourdain for the next question.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Good morning, minister.

Under the bill, a first nation could opt in to the new election system by way of a band council resolution.

Minister, a very troubling matter was brought to my attention at the beginning of my term. Some communities are very remote. Take the community of Pakuashipi, for example, in my riding; it's north of the 52nd parallel. Then-chief Christiane Lalo told me that, strangely enough, his council's resolutions were prepared by law firms in large urban centres and that the members of his council had never endorsed those decisions. Basically, the resolutions were bogus, if you'll pardon the term.

How are you going to ensure the legitimacy of those kinds of documents, which can have a huge impact on local policy and tribes?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

That's a complicated question.

The bill before us concerns the election system. We and the first nations—the key players who gave rise to this bill—are trying to make sure that the members of their communities have access to a responsible, accountable and transparent election system.

Now, it's important that the members of those communities have confidence in the election system and know their chiefs and band councils were elected according to the principles of democracy with respect for everyone's rights. That's what this bill will do.

If an elected band council adopts resolutions prepared by others, I don't think I should get involved. But I would certainly encourage those community members to get involved in issues that concern them and to speak to their band council.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

You realize that, once the resolution is sent to you, it could open the door to an election in the following six months. At least, that's what I took from the document. That means it could be used as leverage to undermine the game or switch the cards, so to speak. Minister, I would humbly submit that this could ultimately be used for purposes that are less than honourable.

Now, let's discuss the elections regulations. It is clear that regulations will be developed under this bill. How inclusive will the process of drafting those regulations really be as far as involving members of the first nations communities goes? To what extent will they be consulted? How involved will they actually be in drafting those regulations, which are ultimately the key ingredient here?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

Absolutely. It is our intention—and we have engaged the first nations in question—to work with them to develop the regulations that will be adopted under the bill. As soon as possible and right after the bill is passed by Parliament, the department plans to work with those first nations on drafting the regulations required to implement the bill.