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First Nations Elections Bill—Third Reading

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Statement made on 03 April 2012 by Senator Lillian Eva Dyck

Hon. Lillian Eva Dyck:

Honourable senators, I rise to speak to third reading of Bill S-6, An Act respecting the election and term of office of chiefs and councillors of certain First Nations and the composition of council of those First Nations.

Honourable senators, the sponsor of the bill pointed out its good points a few weeks ago, and I will not focus on those this evening. The critic of the bill spoke last week about some of the issues with respect to the process, and I do not want to say very much about that. I want to say that I believe that members of the committee did not get a chance to hear the arguments for some of the amendments that a small group of us discussed in a small committee meeting. I believe that that was a mistake. I think that we should have come together as a whole committee before clause-by-clause consideration of the bill in order to hear the reasoning behind the proposal of some of the amendments.

What I will do tonight is try to convince the members of the committee, as well as members opposite, as to why we should at least move one amendment, and that is to delete clause 3(1)(b) of the bill. That is basically the purpose of my speech tonight.

Bill S-6 was developed, at the request of the Assembly of Manitoba Chiefs and the Atlantic Policy Congress of First Nations Chiefs Secretariat, as opt-in legislation for First Nations who hold elections under the Indian Act. This bill does contain good provisions, which the sponsor of the bill talked about. I just mentioned that. I have absolutely no problems with the opt-in provisions of the bill. He did not, however, say much about the main problem with the bill, which is the inclusion of clause 3(1)(b). This clause allows the minister to order a First Nation to come under the provisions of the bill and thus have to conduct its elections according to the provisions of Bill S-6. In other words, if the minister has ruled that a band has had a protracted leadership dispute that has significantly compromised the governance of that First Nation, the minister can unilaterally change their system of governance to that outlined in Bill S-6. To make matters even worse, this forced conversion will apply not only to the 240 bands that hold Indian Act elections but also to the 341 bands that hold community custom code elections. Only the 36 First Nations who are self-governing are exempt from such ministerial intervention. Clearly clause 3(1)(b) has far-reaching, negative consequences for almost all bands.

Honourable senators, there are six reasons why clause 3(1)(b) should be deleted from the bill. First, all of the witnesses, except for the Department of Aboriginal Affairs and Northern Development, AAND, were opposed to this clause. Second, clause 3(1)(b) is unconstitutional. Third, clause 3(1)(b) significantly extends the powers of the minister to intervene in elections held under custom code and not just those held under Indian Act provisions. Fourth, there are better ways to intervene in protracted election disputes in First Nation communities. Fifth, there is the potential for this clause to be used inappropriately. Finally, sixth, deletion of clause 3(1)(b) is simply the right thing to do.

Honourable senators, I will deal with each of these reasons in more depth now. First, all of the witnesses, except for AAND, were opposed to this clause. Both of the regional First Nation organizations — the Assembly of Manitoba Chiefs and the Atlantic Policy Congress — who were the instigators of this legislation only asked for opt-in provisions. With regard to clause 3(1)(b), Grand Chief Nepinak of the Assembly of Manitoba Chiefs stated:

If I may, I would agree with a recommendation that 3(1)(b) and (c) be severed from the legislation. I agree with your characterization of these provisions to be reflective of a time that has come and gone, a paternalistic approach to management of the relationships within our communities.

Similarly, Mr. John Paul of the Atlantic Policy Congress stated that:

Imposing the will on a community externally has consequences. We have learned over the years that if anyone imposes their will upon communities, they are very negative about that kind of stuff.

Chief Jody Wilson-Raybould of the Assembly of First Nations stated:

Unfortunately, the power set out in subclauses 3(1)(b) and (c) of this proposed bill . . . is actually an example of an inappropriate use of federal legislation, an inappropriate use of federal legislation I referred to at the First Nation-Crown gathering. These provisions essentially give the minister the ability to impose core governance rules on a First Nation, which, if ever used, would be resented by that First Nation, would not be seen as legitimate in the eyes of that nation, and would probably add fuel to an already burning fire.

The witness from the Canadian Bar Association stated that the clause should:

. . . explicitly exclude First Nations with self-government agreements and First Nations that are currently operating under customary systems of governance, unless their consent is obtained in accordance with either their customary practices or, in the absence thereof, by a double majority vote.

The witnesses from the Assembly of First Nations, the Assembly of Manitoba Chiefs, and Chief Cook-Searson from Saskatchewan all thought that clause 3(1)(b) should be deleted from the bill. The message was very clear: Delete clause 3(1)(b) because it is unacceptable practice in the 21st century and because, without excluding First Nations operating under custom code elections, the bill goes beyond the scope of opt-in legislation for First Nations under the Indian Act.

The second reason to delete clause 3(1)(b) is that it is unconstitutional. It was noted by the witness from the Canadian Bar Association that the application of clause 3(1)(b) to First Nations with customary systems of governance potentially infringes on constitutionally protected rights of self-governance. The witness stated:

Allowing the minister to prescribe a form of election for First Nations that currently operate in accordance with customary elections would represent a significant interference with protected rights of self-government.

Furthermore, the witness stated:

The broad discretion afforded to the minister to include participating First Nations could then impact on constitutionally protected rights and international legal principles.

In addition, while the government officials stated that the minister has ordered a new election only three times in First Nation elections in the last 10 years, and while they insisted that the minister would only do so in rare circumstances, such an action would be a continuation of archaic colonial practices and is completely contrary to the inherent right of First Nations to govern themselves.

Granting such legislative power to the minister of AAND is particularly troublesome coming right after the Crown-First Nation accord in January, where National Chief Atleo urged the government to "re-invigorate the original relationships that were based on mutual recognition, sharing, and trust" and reset the agenda.

The third reason to delete clause 3(1)(b) is that the minister will gain new powers over custom code First Nations through this clause. Under the Indian Act, the minister has the power to intervene in a First Nation election and order a new election for the "good governance" of the band, but this power is limited to the 240 First Nations who hold elections under section 74 of the Indian Act. If a First Nation operates under custom code, the minister cannot intervene unless asked to do so by the First Nation through the Custom Election Dispute Resolution Policy or by court order. However, under clause 3(1)(b) of Bill S-6, the minister will gain statutory authority to place First Nations who operate under custom election codes on the schedule of Bill S-6, and thus grant the minister the statutory authority to intervene in custom code election disputes without a request by the First Nation or without an order from a court.

There are 341 First Nations that operate under custom election codes. If Bill S-6 passes, the minister would be able to intervene in any protracted leadership disputes they may have, and such intervention would supersede the voluntary Custom Election Dispute Resolution Policy.

To reiterate this point, the minister will be able to order any of the 341 First Nations that hold custom election codes to conduct a Bill S-6 style election if he deems that there has been a protracted leadership dispute compromising its governance. This is a new power. He cannot do this at present unless he is asked to do so by the First Nation or by a court order.

In addition, the minister will be able to order any of the 200 First Nations under the Indian Act to come under the provisions of the bill rather than opt in. Currently the minister can only order them to hold an Indian Act election.

The fourth reason to delete clause 3(1)(b) is that there are better ways to intervene in prolonged election disputes. AANDC witnesses stated it was necessary to order such First Nations to hold Bill S-6 type elections because in Indian Act elections there are no provisions defining election offences or setting penalties for such offences. However, this could be remedied simply by amending the Indian Act to contain the same provisions as in Bill S-6 that outline the offences and penalties. If the minister then orders an Indian Act election for a First Nation that operates under custom code, the Indian Act election would have the same offences and penalties as under Bill S-6.

Furthermore, witnesses stated that the vast majority of election problems occur with those First Nations that conduct Indian Act elections; amending the Indian Act would seem to be a good strategy to prevent these from occurring. The insistence of AANDC on retaining clause 3(1)(b) as is gives one the distinct impression that the department wants the power to intervene in custom code elections.

The fifth reason to delete clause 3(1)(b) is that there is no guarantee that the minister will not use clause 3(1)(b) inappropriately. The department argues that First Nations can trust the minister not to use this clause inappropriately because the minister of AANDC has intervened only three times in the past 10 years; however, there is no guarantee that this will hold true in the future. For example, as pressure mounts to increase natural resource development on or near First Nation land, there is great potential for significant dissension, and as First Nation communities, provincial governments and private sector organizations try to negotiate agreements, there likely will be protracted leadership disputes in First Nation communities.

The federal government authorities are not neutral. The federal government has its own interests, which may well be at odds with those of a particular First Nation, and so it is possible that the minister may be inclined to order an election in hopes of finding First Nation leadership that will come to an agreement more quickly.

Finally, the sixth reason clause 3(1)(b) should be deleted is simple. It is just not the right thing to do in the 21st century. Despite all the considerable efforts of a First Nation community to develop their own custom code election provisions and even have them approved by the minister, the minister can still take back control of their election process through clause 3(1)(b) of Bill S-6. That just is not right.

Chief Wilson-Raybould stated:

Corruption and lack of accountability is highly exaggerated in our First Nation communities. To think that the imposition of an external government's piece of legislation will solve those challenges is somewhat, in my respectful view, misguided.

Honourable senators, a lingering symptom of colonialism is the constant trivializing of the rights of First Nations peoples and the continuing unchallenged position of the Department of Aboriginal Affairs and Northern Department Canada and its minister as being the experts in knowing what is best for Aboriginal people. First Nations should not have to justify why they want to limit the power of the minister of AANDC over their own community custom elections.

Honourable senators, I ask you not to pass Bill S-6 as is, but to support an amendment to delete clause 3(1)(b) that grants the minister of AANDC the power to order a First Nation to come under the provisions of this bill rather than opt in. As I said previously, due to unexpected circumstances, I was not able to make the foregoing comments at a committee meeting, so I now ask the members of the Aboriginal Peoples Committee in particular to do what the First Nations witnesses and the Canadian Bar Association asked us to do, and that is to vote in favour of an amendment to delete clause 3(1)(b).

I will remind the committee members that in our report on First Nation elections, released in May 2010 and entitled First Nations Elections: The Choice is Inherently Theirs, we stated:

. . . any attempts by the department to regulate custom leadership processes, once in place, could constitute an unjust interference of those rights.

Clause 3(1)(b) is such an attempt by the department to regulate custom leadership processes. If we, as members of the committee, do not vote to delete this clause, we would be contradicting ourselves. Furthermore, in our report we recommended that the department commit the resources and work collaboratively with Indian Act bands to help them convert to or update their custom code elections — in other words, move to a better election system. In other words, rather than allowing the minister to force First Nations to change their election mode to conform to Bill S-6, the minister should be helping them convert to or update their custom code elections. That would be much more preferable.

Finally, in our report, we recommended that a First Nations electoral and appeals commission be established immediately. If this commission were set up, this would be a better way to deal with protracted leadership disputes in First Nation communities and the minister would not feel that he somehow had to control what was going on in Indian elections.

Honourable senators, if we do not delete clause 3(1)(b) we will be contributing to the chipping away of First Nation rights. If we do not delete clause 3(1)(b) we will be like accomplices in a crime — the crime of doing nothing when we know that we have the power to stop something wrong from happening.

Though Bill S-6 is marketed as optional, that is, an individual First Nation may choose to opt in, the reality is if this bill passes with clause 3(1)(b) the minister will have the power to add any First Nation having a protracted leadership dispute to come under the provisions of this bill without their consent.

Honourable senators, please let us do the right thing, let us do the honourable thing: Let us pass an amendment to delete clause 3(1)(b). I outlined six reasons why we should do this. First Nations deserve our support in amending Bill S-6 to delete clause 3(1)(b). Please, honour their request.

Motion in Amendment

Hon. Lillian Eva Dyck: Honourable senators, therefore, I move that Bill S-6 be not now read the third time but that it be amended as follows:

(a) on page 3, in clause 3,

(i) by deleting lines 1 to 3;

(ii) by replacing lines 4 to 9 with the following:

" (b) the Governor in Council has set aside an election of the Chief and councillors of that First Nation under section 79 of the Indian Act on a report of the Minister that there was corrupt practice in connection with that election."; and

(b) on page 4, in clause 5, by replacing lines 4 to 7 with the following:

" (b) in the case of a First Nation whose name is added to the schedule under paragraph 3(1)(b), six months after the day on which the order is made.".

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