“The Crown has a duty to consult, and they act like they don’t,” said Ms. Morning Bull, who put together a summary of issues found in Bill C-45 and eight other pieces of legislation in an effort to help First Nations people understand the bills. She considers herself part of the Idle No More movement.
“Consultation is not about sitting there and blowing off steam, it’s about working towards a real process that something will actually come out of it. It’s not just about holding meetings and checking boxes about how many meetings, and how many phone calls you’ve had…it’s about actually sitting down and talking.”
The Aboriginal Affairs and Northern Development Department has an “Aboriginal Consultation and Accommodation” guideline for federal officials “to fulfill the duty to consult,” last updated in March 2011.
In September 2007, the UN adopted the Declaration on the Rights of Indigenous Peoples, which set out that states have an obligation to consult with First Nations and provide “free, prior and informed consent.”
The Supreme Court has made a number of decisions to affirm a provincial and federal duty to consult. For example, the 2004 decision on the Taku Tlingit First Nation versus British Columbia, which established a “duty to consult and accommodate Aboriginal peoples,” on decisions which could affect their rights.
The Hill Times attempted to ask Aboriginal Affairs Minister John Duncan (Vancouver Island North, B.C.) about consultation efforts with First Nations, but was unable to receive a response last week.
On Jan. 8, two Alberta First Nations, the Mikisew Cree and Frog Lake First Nations, filed to seek a Federal Court judicial review of parts of both the federal government’s omnibus budget implementation bills to determine whether the government has fulfilled its duty to consult.
“In general, what [the courts have] said, is that the general rule is when the Crown is contemplating a course of conduct that could affect aboriginal peoples they should consult,” said Robert Janes, a B.C. lawyer with the Janes Freedman Kyle Law Corporation who is representing the two First Nations.
Mr. Janes said this case will set a clear precedent for whether the federal government has to consult specifically “when it’s undertaking this sort of huge policy review that ends up resulting in legislation.”
Previously, Mr. Janes said, “the court has said it might apply to legislative processes, but ‘we don’t have to decide that yet.’” Mr. Janes said with his case, the time has come.
On Jan. 10, Assembly of First Nations National Chief Shawn Atleo, joined by AFN Regional Chief for B.C. Jody Wilson-Raybould and AFN Regional Chief for Saskatchewan Perry Bellegarde, held a press conference in the National Press Theatre in Ottawa, and outlined commitments AFN chiefs want to see from the federal government. The press conference was prior to Mr. Atleo’s meeting Prime Minister Stephen Harper (Calgary Southwest, Alta.) on Jan. 11. Among the commitments being sought is the creation of a new “mechanism” through the PMO or PCO to oversee the application of treaties, and the review of sections of the omnibus budget bills C-38 and C-45 to ensure the government fulfilled its duty to consult.
Ryerson University Professor Pamela Palmater, who is a spokesperson for the Idle No More movement, has said the movement wants to see the government reverse funding cuts affecting First Nations, to repeal legislation highlighted by the movement (the budget bills and eight other bills), and for a permanent process to adequately consult with First Nations on legislation.
“Idle No More is raising the consciousness of all Canadians, that this is very serious what this government has done in a unilateral way without listening to the people who use the land, need the land and the rivers that flow through it,” said Liberal MP Carolyn Bennett (St. Paul’s, Ont.), her party’s aboriginal affairs critic, who added that the next budget is a good chance for the government to show change.
NDP MP Jean Crowder (Nanaimo-Cowichan, B.C.), her party’s aboriginal affairs critic, said problems with the relationship between government and First Nations have long existed through successive governments.
Ms. Morning Bull said she is hopeful for change, but added, “Harper is the guy who said a year ago at the Crown-First Nations meeting, ‘I’m not going to unilaterally amend the Indian Act,’ and look what we have [now].”
Bill C-38, Jobs, Growth and Long-term Prosperity Act
Bill C-38 passed through Parliament and received royal assent on June 29, 2012. The first of two omnibus budget implementation bills, the bill contained a smorgasbord of legislative changes. Specifically of concern to First Nations was the overhaul of the Canadian Environmental Assessment Act, which set up a new environmental assessment regime that included granting the Environment Minister authority to decide whether assessments are required for new resource developments, and the exemption of pipelines from the Navigable Waters Protection Act.
Bill C-45, Jobs and Growth Act, 2012
Bill C-45 was pushed through the House of Commons and received royal assent on Dec. 14, 2012. The second omnibus budget implementation bill, it contains changes to legislation across the board, from the Fisheries Act to the Criminal Code to the Bank Act.
First Nations communities have specifically highlighted a number of issues:
Changes to the Indian Act on land designation: previously a majority of eligible voters (band members) in a community would be required to vote on land designation, now only a majority of the voters present would be needed to pass a decision, however many are present (this has also raised concern about excluding off-reserve First Nations members from such decisions, and potentially opening-up the process to abuse); the minister is given more power in the process.
The Fisheries Act changes the definition of an “aboriginal fishery.”
Previously the Navigable Waters Protection Act covered all navigable waterways in the country, but now only three oceans, 97 lakes and 62 rivers remain protected under the act (this means a large number of lakes and rivers are left to provincial protection).
Technical amendments to the Canadian Environmental Assessment Act, including making the new environmental assessment process implemented in Bill C-38 apply to designated projects that otherwise would have been under old rules.
Bill C-27, First Nations Financial Transparency Act
First introduced to the House on Nov. 23, 2011, Bill C-27 has already passed through the House of Commons into the Senate, and on Dec. 13, 2012, just before the end of the fall session, the bill was referred to the Standing Senate Committee on Aboriginal Peoples for study.
First Nations communities have criticized it for a lack of consultation, but has also criticized its potential to deter commercial partners from working with First Nations. Ms. Morning Bull said First Nations peoples are already required to do an annual audit. If the bill is passed, First Nations would have to publicly disclose both an annual audit and a list of remuneration for the chief and council, both of which must be published on the First Nations’ website and the Aboriginal Affairs Department’s website, and the minister could choose to withhold funding if requirements aren’t met. Ms. Morning Bull said because the bill includes “any entity,” these auditing requirements will discourage companies from entering into joint-ventures with First Nations.
Bill S-6, First Nations Elections Act
A Senate bill, Bill S-6, has already passed through the Red Chamber and has been sitting at first reading in the House of Commons since May 4, 2012. The bill is an opt-in piece of legislation for First Nations communities to follow an election framework set out in the act. While described as opt-in legislation, the bill has been criticized for granting the minister additional powers to intervene in First Nations governance, namely, to add First Nations to the schedule of participating communities.
Bill S-8, Safe Drinking Water for First Nations Act
Another Senate bill, Bill S-8 has already passed through the Senate and is currently at second reading in the House of Commons. Since arriving in the Green Chamber, the bill has been debated three times, the last being on Nov. 26, 2012.
First Nations have criticized the bill for creating regulations for communities without their direct involvement, and for not providing funding for those new regulations and standards to be met. Critics have also said the bill will abrogate or derogate First Nations treaty rights.
Bill S-207, An Act to amend the Interpretation Act
Senate Bill S-207 is still in the Red Chamber and was referred to the Standing Senate Committee on Legal and Constitutional Affairs after second reading on June 7, 2012, but the committee has yet to meet to study the bill.
This bill would legislate that “no enactment” can “abrogate or derogate” aboriginal and treaty rights “recognized and affirmed” under Sec. 35 of the Constitution. This has been criticized by First Nations because only Sec. 35 protections are included.
Bill S-212, First Nations Self-Government Recognition Act
This bill was only introduced in the Senate on Nov. 1, 2012. The main concern around this bill is a lack of sufficient consultation with First Nations.
Bill S-2, Family Homes on Reserves and Matrimonial Interests or Rights Act
Introduced to the Senate on Dec. 8, 2011, this bill has already made its way to the House of Commons and currently sits at second reading. Bill S-2 has been debated twice, last on Nov. 22, 2012, and is the fourth version of such legislation to be introduced by the Conservative government.
This bill has been criticized by First Nations groups for a lack of consultation that has led to, what critics have said, is a failure to consider or understand First Nations views on property ownership.
Bill C-428, Indian Act Amendment and Replacement Act
Bill C-428 is a private member’s bill introduced by Conservative MP Rob Clarke (Desnethé-Missinippi-Churchill River, Sask.) on June 4, 2012. The bill has since made its way to second reading, and on Dec. 5, 2012 it was referred to the Standing Committee on Aboriginal Affairs and Northern Development. The committee has not yet studied the bill.
This bill has been sharply criticized by First Nations as being an attempt to unilaterally amend the Indian Act, something Mr. Harper said the government would not do at the Dec. 24, 2011 Crown-First Nations Gathering.
Original Article
Source: hill times
Author: LAURA RYCKEWAERT
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