AIAI - LEGISLATIVE UPDATE - JANUARY 2013
There are currently eight pieces of legislation that will directly impact First Nations currently before Parliament, with two more impending Bills on First Nation education and private land ownership on-reserve. The following is a brief summary and status update of those pieces of legislation.
Bill C-27: First Nations Financial Transparency Act
- Bill C-27 requires First Nations to prepare and publically disclose audited consolidated financial statements AND schedules for remuneration paid to Chiefs and councillors. This information would also be provided on the AANDC website. Failure to prepare or disclose such information could result in the withholding of contribution funds or termination of an agreement.
- The legislation reinforces the misperception that First Nation leadership is not accountable or transparent. As a result, the Bill attempts to make leadership accountable to the Canadian public rather than First Nation citizens.
Bill C-27 passed through the House of Commons and is currently sitting at Second Reading in the Senate.
Bill C-45: Jobs and Growth Act, 2012
- The omnibus bill contains amendments to theIndian Actregarding land designation which eliminates the need for a double majority in a community voting on a land designation, changing this to a simple majority. It also eliminates the need for the Governor in Council to approve this vote, changing this to approval by the Band Council and the Minister.
- The Bill will also amend the definition of Aboriginal Fishery introduced in Bill C-38 to mean, “…fish [that] is harvested by an Aboriginal organization or any of its members for the purpose of using the fish as food, for social or ceremonial purposes or for purposes set out in a land claims agreement entered into with the Aboriginal organization.”
Bill C-45 Received Royal Assent on December 14, 2012.
Bill S-2: Family Homes on Reserves and Matrimonial Interests or Rights Act
- Bill S-2 seeks to create a matrimonial real property (MRP) rights regime on-reserve. The legislation creates a provisional federal code that goes into effect one year after the Bill receives Royal Assent. The legislation also enables First Nations to create their own community laws.
- The legislation does not provide the necessary tools and capacity to access justice or to address underlying issues, such as housing shortages, family violence and the need for community-based dispute resolution mechanisms.
- There are already First Nations that have put their own laws and approaches in place on this matter. These must be respected and a similar approach must be supported for all First Nations. The AFN is encouraging First Nations to work with their citizens to enact their own laws or codes in this area in advance of this Bill coming into force.
Bill S-2 has passed through the Senate, and now sits at Second Reading in the House of Commons. The Bill will likely go to Committee before going to Third Reading.
Bill S-6: First Nations Elections Act
- Bill S-6 is opt-in legislation for First Nations that conduct their elections under the Indian Act. The Bill’s provisions extend the election term from two years to four, and create a re-call mechanism. Additionally, the legislation allows elections to be contested in a court of law, and sets-out offences and penalties in relation to the election of a chief or councillor. The Bill also Includes opt-out provisions for FNs to transition to custom codes
- The Bill empowers the Minister of AANDC to order a First Nation under the Act, including one that conducts custom elections, in the event of a dispute or an election overturned by the Governor-in-Council.
Bill S-6 has passed through the Senate, and was introduced in the House of Commons on May 4, 2012. The Bill will now go to debate at Second Reading.
Bill S-8: Safe Drinking Water for First Nations Act
- Bill S-8 establishes a framework to facilitate the creation of regulations for the provision of safe drinking water on-reserve. Bill S-8 was previously introduced in the last parliamentary session as Bill S-11. Some changes have been made including a commitment in the preamble to include First Nation input into the development of regulations, the inclusion of a non-derogation/abrogation clause, and an explicit limitation that the bill does not authorize regulations respecting the allocation of water supplies or issues of permits for the use of water for any purpose other than as drinking water.
- According to the AFN, consensus remains that investments are needed to support capacity for First Nations in this area, and that First Nations must be directly involved in the development of associated regulations.
Bill S-8 has passed through the Senate, and is now being debated at Second Reading in the House of Commons.
Bill C-428: Indian Act Amendment and Replacement Act
- Bill C-428 is a private member’s bill that amends provisions of the Indian Act, including; 1) repealing provision which limit bylaw authority and require submission to the Minister before they can come into force; 2) repeals provisions related to residential schools; and 3) repeals provisions that give the Minister authority over the handling of wills and estates on reserves.
- The legislation also sets out a commitment to develop new legislation to replace the Indian Act in the preamble, as well as an intention to continuing work on “exploring creative options for the development of this new legislation in collaboration with the First Nations organizations that have demonstrated an interest in this work.” The legislation establishes a requirement for the Minister to report annually on efforts to replace sections of the Indian Act with modern amendments or legislation.
Bill C-428 is currently at Second Reading in the House of Commons. On December 5, 2012, the legislation was referred to the Standing Committee on Aboriginal Affairs and Northern Development for study.
Bill S-207: An Act to amend the Interpretation Act (nonderogation of aboriginal and treaty rights)
- Bill S-207 seeks to amend the Interpretation Act (which governs the implementation of all laws) to provide that no enactment shall be construed so as to abrogate or derogate from the aboriginal and treaty rights recognized and affirmed by section 35 of the Constitution Act, 1982.
Bill S-207 is currently at Second Reading in the Senate. The legislation was referred to the Standing Senate Committee on Legal and Constitutional Affairs for study.
Bill S-212: First Nations Self-Government Recognition Act
- Bill S-212 provides for a process for a First Nation to become recognized as self-governing under its constitution. Canada would recognize a First Nation’s exclusive power to legislate with respect to its lands and persons on those lands. Legislative powers include programs and services, child and family law, education, use, management and control of its lands, raising revenues, administration of justice, gaming etc. In the event of a conflict between the laws of a First Nation and the federal government, the laws of the federal government would prevail.
Bill S-212 was introduced in the Senate on November 1, 2012, where it received First Reading. The legislation will now proceed to debate at Second Reading.
- With the exception of Bill S-212,First Nations Self-Government Recognition Act, all of the above legislation is consistent with Prime Minister Stephen Harper’s comments at the Crown-First Nation Gathering in January 2012. The Prime Minister indicated that Canada had no plans to scrap theIndian Act, or replace it in its entirety. Rather, Canada would move incrementally, introducing amending or stand-alone legislation aimed at replacing sections of theIndian Actor to expand First Nation governing powers.
- Although Private Member’s Bill C-428 calls for the replacment of theIndian Act, Cabinet may interpret the preamble in a way that is consistent with the approach committed to by the Prime Minister.
- While eight pieces of legislation are currently making their way through Parliament, two more major pieces of legislation are likely to be announced in the next year. These include the First Nation Education Act, and legislation to create fee simple land title on reserve. It is therefore unlikely that the current wave of legislation will moderate in the near term.
This wave of legislation, along with Canada’s compulsive disregard for the Nation-to Nation relationship is resulting in widespread action across Ontario region, as well as Canada. The Chiefs of Ontario will form a committee to begin circulating information regarding the above legislation to other regions, communities, organizations and citizens.
AIAI Briefing Notes: Bill C-27,First Nations Financial Transparency Act
Bill S-2,Homes on Reserves and Matrimonial Interests of Rights Act
Bill S-6,First Nations Elections Act
Assembly of First Nations, Parliamentary Wrap Up for Week of November 19-23, 2012
LegisInfo, Parliament of Canada, www.parl.gc.ca/legisinfo
Political Confederacy Bi-Weekly Conference Call, December 14th, 2012.