Why proposed federal legislation concerns First Nations – (Wawatay News – January 16, 2013)


Prepared by Lorraine Land, Liora Zimmerman and Andrea Bradley Dec. 20, 2012 of Olthuis Kleer Townshend – LLP

Bill C-38 Budget Omnibus Bill #1

This 450-page bill changed more than 70 federal acts without proper Parliamentary debate. This bill dramatically changes Canada’s federal environmental legislation, removing many protections for water, fish, and the environment. The changes were made without consulting First Nations.

Bill C-45 Budget Omnibus Bill #2

This second bill also exceeds 450 pages, and changed 44 federal laws, again without proper Parliamentary debate. This bill removes many fish habitat protections and fails to recognize Aboriginal commercial fisheries.

Changes to the Navigable Waters Protection Act reduce the number of lakes and rivers where navigation and federal environmental assessment is required from 32,000 to just 97 lakes, and from 2.25 million to just 62 rivers. This means 99 per cent of Canada’s waterways lost their protection for navigation and federal enviro assessment purposes.

These changes were made without consulting First Nations.

Bill C-27 First Nations Financial Transparency Act

This bill imposes standards on First Nations governments that far exceed those for municipal, provincial and federal officials in other jurisdictions.

It requires First Nation‐owned businesses (unlike non‐Aboriginal businesses) to publicly report income and expenses, thus undermining competitiveness.

It adds additional bureaucracy to the existing requirement that each First Nation provide Ottawa over 150 financial reports each year, contrary to the recommendations of Canada’s Auditor General and the Treasury Board.

The First Nations Private Property Ownership Act

The government intends to introduce this legislation, but it hasn’t yet.

The Act would permit private property ownership within reserve boundaries. Individual bands would be able to adopt the legislation on an optional basis.

A private property system is contrary to the goal of many First Nations to protect Aboriginal lands as a collective resource.
The Act would allow the small existing Aboriginally-owned land base to be sold to non-Aboriginal buyers, forever losing these lands as Aboriginal lands. This is particularly a risk for impoverished communities who may be forced by economic desperation to sell their own lands for short term gain.

First Nations need more options to use their lands for economic development purposes, but this simple “one size fits all” fix is dangerous. The government should instead work with First Nations to address real self‐sufficiency by ensuring Aboriginal control over resources extracted in their traditional lands, and addressing educational, health and other social development.

Bill S-2 Family Homes on Reserve and Matrimonial Interests or Right Act

There are currently no laws that determine how property on reserve is divided up when married couples divorce. This bill addresses that “gap”, but does so without recognizing First Nations’ jurisdiction over reserve property.

There are many issues associated with matrimonial property on reserve, including violence against women, housing availability, self‐government rights, capacity to develop and enforce laws, and access to justice. These issues have been disregarded in the interests of a “simple fix”.

The provisional laws in this legislation will infringe on First Nations’ inherent self‐government rights. The legislation will also make it difficult for people to ensure the laws are enforced, as they would have to go to a provincial court, which can be difficult due to distance and expense.

Bill S-6 First Nations Elections Act

This Bill provides an alternative elections regime to that under the Indian Act.

Although this will affect all First Nations, there was inadequate consultation about it.

It is positive that this bill allows First Nations to opt into an alternative regime for elections. The Minister can, however, simply impose an election process against the will of a First Nation community, and at the discretion of the Minister (if the Minister decides there has been a problem with an election). This can lead to political interference with First Nations elections.

Bill S-8 Safe Drinking Water for First Nations Act

This Act will allow Canada to over‐ride First Nation bylaws, BCRs and policies that protect safe drinking water.

The Minister will now have the power to require First Nations to charge fees to members for receiving clean water.

The Act allows the government to annul or destroy Aboriginal rights and treaty rights “to the extent necessary to ensure safe drinking water.” This is a limited power but is concerning in principle, especially when the government was not able to provide any justification why it needed this power.

Bill C-428 Indian Act Amendment and Replacement Act

This is a private members bill that is a substantial piece of legislation which would impose sweeping changes to the Indian Act. Yet there has been no proper consultation with First Nations about it.

First Nations support the need to abolish the Indian Act. Any discussion about legislation to replace the Indian Act, however, needs to fully involve First Nations. Yet there has been no substantial consultation on this bill.

Bill S-207 An Act to amend the Interpretation Act

This Bill says that no legislation will be interpreted as annulling or destroying Aboriginal or treaty rights. However, if another Act showed a clear intention of destroy such rights, this Act would not prevent that from happening.

Bill S-212 First Nations Self-Government Recognition Bill

This legislation has been introduced for the fourth time.

This Act would make it possible for First Nations to take on much of the authority currently given to provinces (such as fisheries, wildlife and habitat management, education, child protection and adoption, and health care).

If the government intends to support or proceed with this Act, however, there must be consultation with First Nations as the impact on First Nation communities will be profound.