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Speech in Senate Chamber: Bill C-428 to Amend the Indian Act—Third Reading—Motion in Amendment Negatived—Deferred Vote


Indian Act

Bill to Amend—Third Reading—Motion in Amendment Negatived—Deferred Vote

On the Order:

Resuming debate on the motion of the Honourable Senator Ngo, seconded by the Honourable Senator Marshall, for the third reading of Bill C-428, An Act to amend the Indian Act (publication of by-laws) and to provide for its replacement;

And on the motion in amendment of the Honourable Senator Dyck, seconded by the Honourable Senator Mitchell, that Bill C-428 be not now read a third time but that it be amended, in the preamble, on page 1, by replacing line 17 with the following:

"legislation in consultation with the First".

That Bill C-428 be amended on page 1 by adding after line 24 the following:

"1.1 For greater certainty, nothing in this Act is to be construed so as to abrogate or derogate from the Aboriginal and treaty rights of Aboriginal Peoples of Canada that are recognized and affirmed by section 35 of the Constitution Act, 1982.".

That Bill C-428 be amended in clause 2, on page 2, by replacing line 5 with the following:

"And Senate committees responsible for Aboriginal affairs on"

That Bill C-428 be amended in clause 4 on page 2 by deleting line 17 to 24.

That Bill C-428 be amended in clause 14, on page 4, by deleting lines 8 to 12.

That Bill C-428 be amended in clause 15, on page 4, by deleting lines 13 to 15.

That Bill C-428 be amended in clause 16, on page 4, by deleting lines 16 to 20.

That Bill C-428 be amended in clause 17, on page 4, by deleting lines 21 to 29.

That Bill C-428 be amended in clause 18,

(a) on page 4, by deleting lines 30 to 36; and

(b) on page 5, by deleting lines 1 to 4.

Hon. Anne C. Cools: Honourable senators, I rise to speak to Bill C-428, An Act to amend the Indian Act (publication of by-laws) and to provide for its replacement. I speak in support of Senator Dyck's thoughtful and well-considered amendments. I would like to thank her for her good work.

In the House of Commons on June 4, 2012, Bill C-428 was moved by its sponsor, the Saskatchewan Conservative MP Rob Clarke. It died at prorogation last year, was reinstated at third reading on October 16, 2013, and was adopted on November 20. It was adopted in the Commons on the strength of the government supporters there. Bill C-428 appears to be another one of those private members' bills which is really a government bill. It is pushed and supported by the government. It is very interesting that the government supports it, wants it but was not willing to take responsibility for it. I would think that a bill of such national importance, of such sensitive nature and policy magnitude, should proceed in the two houses under the doctrine and procedures of ministerial responsibility, and under the guidance and superintendence of the responsible minister, Bernard Valcourt, the Minister of Aboriginal Affairs and Northern Development. He is the minister designated by our Constitution and appointed in Her Majesty's name by her representative, the Governor General, to have the superintendence of the affairs of our indigenous peoples, as in our First Nations.

The 1959 edition of Jowitt's Dictionary of English Law, Volume 2, at page 1206, defines the term "nations" — First Nations:

Nation, a people distinguished from another people, generally by their language, or government; an assembly of men of free condition, as distinguished from a family of slaves.

Black's Law Dictionary, Fifth Edition, 1968, at page 1175, also defines "nation":

Nation. A people, or aggregation of men, existing in the form of an organized jural society, usually inhabiting a distinct portion of the earth, speaking the same language, using the same customs, possessing historic continuity, and distinguished from other like groups by their racial origin and characteristics, and generally, but not necessarily, living under the same government and sovereignty.

Honourable senators, the term "nation" includes a quality of sovereignty and self-determination. Our lawful dealings with our First Nations, most particularly those on the adoption of statutes in our two houses, must be initiated and conducted by plenipotentiaries, meaning Her Majesty's ministers, authorized by her to act on her behalf with our First Nations peoples. These First Nations peoples had been the subject of copious treaties with Her Majesty. They have many large and important rights and powers, including section 35 of the 1982 Constitution Act. All bills in the two houses of Parliament must proceed under the guidance and watchful eye of a member of Her Majesty's cabinet, in this instance, Her Majesty's minister responsible for Aboriginal Affairs and Northern Development.

Honourable senators, I note that this bill's sponsor is not a minister, a plenipotentiary, or a member of His Excellency, the Governor General David Johnston's, Government of Canada, called the administration. Rob Clarke, this bill's sponsor, is a First Nations member of whom we are all proud. But our constitutional and parliamentary practice and law dictate that bills in Parliament about First Nations business are the exclusive domain of our ministers, of which he is not one. A private member may be a supporter of the government of the day, but a private member is not the minister. The notion of ministerial responsibility is the fundamental and founding principle of our modern parliamentary system. Put in other words, every important measure should be moved in the houses under ministerial responsibility, by a minister who takes responsibility for everything in the bill that is before the house. Matters of this nature, magnitude and importance should not proceed in either house of Parliament as the work product and initiative of a private member, but should proceed at the initiative of a Crown minister.

Honourable senators, this private member's Bill C-428 is a pretender. It pretends to be an answer to the large and deep problems that so afflict our beloved and enduring indigenous peoples, but it is a proceeding that is violating their right to have their affairs in the houses led by a member of Her Majesty's Canadian government, a minister. The first principle of our constitutional system is that as nations, our First Nations, our Aboriginal and indigenous peoples are entitled to have their affairs in the houses dealt with and processed by cabinet ministers. The first defect in Bill C-428 is this fact, that the bill as it has proceeded, is a slight of the First Nations' entitlement to engage nation to nation, that is their nations with our nation, Canada. This bill is a pretender. It reads and sounds more like a promotion and advertising campaign than it does a bill seeking support in the two houses, which should proceed under the principles of responsible government and ministerial responsibility.

Honourable senators, I shall quote the bill's sponsor, Mr. Rob Clarke, in the Commons House on October 18, 2012. Speaking about the Indian Act, he tells of the

. . . outdated, racist, colonial statute . . . the Indian Act. . . . this archaic piece of legislation . . . extending to every aspect of the lives of every first nations person . . . .

I note that the bill's sponsor hints broadly and loudly that his bill is well-supported by the Harper government and, in places, he speaks for the Government of Canada. His preamble says:

Whereas the Government of Canada is committed to the development of new legislation to replace the Indian Act . . .

And whereas the Government of Canada is committed to continuing its work in exploring creative options for the development of this new legislation in collaboration with the First Nations . . .

Those words should fall only from a government minister's mouth.

Honourable senators, the bill's sponsor does not tell us why he is speaking on behalf of the Government of Canada in this bill. Senators must differentiate between government supporters in the houses and the Government of Canada. It is well established that only a Crown minister, so appointed by Her Majesty's representative, can claim to speak for our government, within or outside of the framework of a bill. It is also unfortunate that the unusual preamble bears no relationship whatsoever to the content of the bill.

Honourable senators, the bill's sponsor believes that the Indian Act can be dismissed and easily dismantled. On October 25, 2013, in his speech at page 430, he described it as:

. . . an archaic and fundamentally bigoted piece of legislation that governs the day-to-day lives of first nations and that it must go.

And said:

. . . I believe that the practical and incremental changes proposed in the bill can lead to further meaningful conversation about how the Indian Act could be dismantled and replaced.

And also:

. . . I believe it is the first step of meaningful change.

These are all his beliefs, products of his mind.

Honourable senators, Bill C-428 even proposes to delete the terms "residential schools" from the Indian Act. In the same October 25 speech, Mr. Clarke stated:

Bill C-428 would also remove references to residential schools from the Indian Act. As a grandson of two residential school survivors, I have seen first-hand the devastating effects that residential schools have had on our people. There is no place in Canadian law in the year 2013 for residential schools. I cannot wait for the references of this shameful period of our nation's history to be erased from the books.

This reminds me of Mr. Stalin. If you erase words from a statute, you also erase the history concerned.

Honourable senators, the bill's sponsor believes that the deletion of words from a statute is simultaneously the deletion of the unhappy event from history. Colleagues, I would submit that these painful memories of many of these people will not disappear soon. We should take a long and hard look at this bill, which sounds more like a public relations and communications advertisement than an effective piece of legislation aimed at advancing the condition of our indigenous peoples.

Honourable senators, I thank and laud Senator Ngo for his more measured approach to correcting defects in the Indian Act. He said in his speech here, November 6, at page 2439, that:

The best way to remove a big boulder is to carve it out chip by chip.

Honourable senators, the Indian Act, and changes to it, require careful, lengthy and profound consideration and study. My concerns with this bill are that the bill itself is unparliamentary and does not follow parliamentary procedures of ministerial responsibility. I would go so far as to say that this bill is a frontal attack on the concept of ministerial responsibility and on the principle that large and important measures in both houses should originate and be piloted in the houses by ministers of the Crown.

I thought, honourable senators, it might be useful if I recorded here some of the great minds and the great concepts that define the meaning of ministerial responsibility. In his 1887 edition of On Parliamentary Government in England, Volume II, writing about ministerial responsibility and the proper role of Crown ministers in the houses of Parliament, Alpheus Todd wrote, at page 288:

It is by means of the introduction of the ministers of the crown into Parliament for the purpose of representing therein the authority of the crown, and of carrying on the government in direct relation with that body, that the responsibility of ministers for every act of government is practically exemplified and enforced.

The whole executive functions of the crown have been entrusted to ministers, chosen by the sovereign, and personally accountable to him. In order that those functions may be exercised in conformity with the most enlightened opinions of the great council of the nation, it is indispensable that the king's ministers should be selected from amongst that council. Having in their individual capacity as members of one or other of the legislative houses, a right to sit therein, they are thus brought face to face with those who are privileged to pronounce authoritatively upon the policy of the government, and whose consent must be accorded to their very continuance in office as ministers of the crown. Ministers, . . ., being the chosen and confidential servants of the sovereign, are necessarily the depositaries of all the secrets of state, and have access to the highest sources of information on every political question. They are . . . peculiarly qualified to guide the deliberations of Parliament, and to aid their fellow-members in forming sound conclusions upon every public matter that may be brought before them.

Honourable senators, in his same work, Volume I, Todd wrote, at page 6:

All important bills are now submitted to Parliament by ministers of the crown, with the avowed sanction and express authority of the sovereign; and it has become a recognised and prominent part of the functions of the king's ministers that they shall be able to lead and control the two Houses of Parliament, and to carry on the government therein, by themselves undertaking the oversight and direction of the entire mass of public legislation.

Further, at page 9, he said:

By the formal introduction of the king's ministers into Parliament . . . the monarchical element in the constitution began to make itself felt in the House of Commons. . . . `For parliamentary government is essentially a government by means of party, since the very condition of its existence is that the ministers of the crown should be able to guide the decisions of Parliament, and especially of the House of Commons . . . .'

And, at page 265:

As a pledge and security for the rightful exercise of every act of royal authority, it is required by the constitution that the ministers of state for the time being shall be held responsible to Parliament and to the law of the land for all public acts of the crown.

Finally, at page 266, Todd adds:

In a constitutional point of view, so universal is the operation of this rule, that there is not a moment in the king's life, from his accession to his demise, during which there is not some one responsible to Parliament for his public conduct; and `there can be no exercise of the crown's authority for which it must not find some minister willing to make himself responsible.' . . . whenever the royal sign manual is used, it is necessary that it should be countersigned by a responsible minister, for the purpose of rendering it constitutionally valid and authoritative.

Honourable senators, Bill C-428 is indeed unusual and odd. Its large and substantive issues do not belong in a private member's bill, lacking the guidance of a minister of the Crown.

I submit that there are good and clear reasons why our indigenous peoples are called First Nations. Exchange between nations, in this instance between our Crown and our First Nations representatives, must be by a minister, a representative of the Crown. The duty to consult with First Nations on legislative issues that touch them must rest with our Crown, as one nation to another nation. Nation-to-nation exchange is not the purview of a private member's bill, nor the role of a private member.

Honourable senators, this bill looks to create a false power over the Minister of Aboriginal Affairs and Northern Development. It is unparliamentary for the houses to legislate a duty that a Crown minister report to a committee of the House of Commons. Bill C-428 does this in clause 2, that —

The Hon. the Speaker pro tempore: Honourable senator, your time has expired. Would you be willing to ask for five more minutes?

Senator Cools: I would.

The Hon. the Speaker pro tempore: Senator Cools is asking the chamber for five more minutes. Is it granted?

Hon. Senators: Agreed.

Senator Cools: Bill C-428 does this in clause 2, that: —

Within the first 10 sitting days of the House of Commons in every calendar year, 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.

This is so constitutionally wrong. It is also offensive to ministerial responsibility. The role and work of house committees is the exclusive domain of the house, and statutes should be wary about intruding on and usurping the exclusive domain of the house. The house alone decides the role and the work of its committees. A minister's business is not the house's business; it is Her Majesty's business. This clause 2 is not consistent with our practice of ministerial responsibility. Decisions on the work of committees is the duty of the whole house, and of all members acting together. The house should not attempt to control the output of a minister by subjecting him to a committee. Defining house committees duties belongs to the house, not a statute. This is irregular, more so on matters as sensitive as the Indian Act, and the pain and suffering that we now know — and have known for a long time — that so many Aboriginal peoples have endured.

Honourable senators, questions arise from this troubling clause 2 order for the minister. Why 10 sitting days? Why has this particular minister been singled out in this way? If the minister does not report, what will be the consequence? Would he be subjected to the house's contempt of parliamentary power? More importantly, does the responsible Minister Valcourt have an opinion on any of this? What does he think and why do we not know?

Honourable senators, the Indian Act will not simply be repealed or replaced so easily, as this bill suggests. Such profound action requires serious, deep, substantial and lengthy consultations between the Crown and the First Nations. And I mean nations. This bill is very strange indeed.

Honourable senators, I urge you to consider the parliamentary and procedural flaws that this Bill C-428 harbours, and to vote against it, and to inquire why Her Majesty's responsible Minister, Minister Valcourt, is not involved in this bill. We should also find out what he thinks of it, and also why he did not have carriage of this issue in the House of Commons of this bill. It would seem to me dismantling or replacing the Indian Act is exclusively the purview of the minister.

Hon. Lillian Eva Dyck: Would the honourable senator take a question?

Senator Cools: I do not know where my time is, but I hope that they will grant it to us.

The Hon. the Speaker pro tempore: One more minute for a short question.

Senator Dyck: I believe you pointed out a fundamental flaw in the parliamentary procedure in that the Member of Parliament should not have introduced the bill, but that it should have been the minister. Is that correct?

Senator Cools: Absolutely. The dealings between government and First Nations people stand on a very special footing. They stand on a unique constitutional footing. In addition, such dealings are entrenched over history for a couple of centuries, the result of the various treaties. Absolutely. This Bill C-428 is completely out of order.

Senator Dyck: What can the First Nations do then? Can they challenge that in court?

Senator Cools: I would say yes. The member, Rob Clarke, is obviously very well-intentioned. Most members are. I think he is somebody we should be proud of, because he himself is a native person. But this is obviously and evidently egregious. We are not dealing here with a simple little bill on an insignificant issue. —This bill deals with, in his words, "dismantling" the Indian Act. Mr. Clarke is very harsh in his words. I would like us to take this very seriously. We have ministers for a reason and, in their appointment and commissions, they receive certain powers to do certain things that private members simply cannot.

The remainder of this day's Senate Debates are available here.