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Bill C-32, with specific reference to Division 3 of Part 4, Framework Agreement on First Nation Land Management Act - Second Reading

Honourable senators, I am compelled to rise again today to speak to Bill C-32, with specific reference to Division 3 of Part 4, that being the Framework Agreement on First Nation Land Management Act. My focus today will be on how the pre-study process commits an injustice to First Nations.

I have witnessed that with pre-studies we, as senators, cannot and do not attend to our matters as thoroughly as we should, and, therefore, are unable to apply proper sober second thought. Yet, as stated by other senators, pre-studies have become a normalized part of procedure, which creates problems.

As a senator who is First Nations, I am concerned about how this rush has breached my right of privilege. The interim report of the Standing Senate Committee on Rules, Procedures and the Rights of Parliament entitled A Matter of Privilege: A Discussion Paper on Canadian Parliamentary Privilege in the 21st century states that:

. . . in the late 20th and now in the 21st century discourse about parliamentary privilege centres on how privilege should function in a rights-based legal system exemplified here in Canada by the Canadian Charter of Rights and Freedoms, and where the public expects increased transparency and accountability for the decisions made by parliamentarians.

The report cites the Supreme Court of Canada in Canada (House of Commons) v. Vaid:

Parliamentary privilege in the Canadian context is the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies, and by each member individually, without which they could not discharge their functions.

Colleagues, my work and function rests with Indigenous peoples across Canada, including grassroots, leadership and specific interest groups. Part of my function is to bring their voices, which have been largely and historically unheard in this arena, to the Senate floor and into our committees. It is extremely difficult to do this with pre-studies.

In the artificially fabricated rush to deal with Bill C-32 via multiple pre-studies, I have been unable to ensure that the interested groups I represent have been empowered to be heard on relevant matters that are of critical importance. This has resulted from an inability to procure timely translation of their documents into French and an inability for them to bring proposed amendments forward due to the Office of the Law Clerk and Parliamentary Counsel being stretched too thin. This issue, which is of absolutely no fault of the Law Clerk’s office, as they provide a crucial service, has previously affected my work in the Standing Senate Committee on Energy, the Environment and Natural Resources.

Of great concern in such instances is that this issue has already impeded me from being able to best demonstrate to my colleagues, who are charged with making decisions that have direct bearing on First Nations’ lives and well-being, the impacts of the cumulative effects of resource extraction on Indigenous lives as well as on reconciliation efforts.

I’ll be interested to see how French translation will be handled with these new committee studies. Why are some bills allowed amendments and others are not? This is differential treatment.

Honourable senators, in this specific situation with Bill C-32, Grand Chief Garrison Settee of the Manitoba Keewatinowi Okimakanak, or MKO, only heard about this bill very late in the process. He immediately presented a written submission to the Standing Senate Committee on Indigenous Peoples and the Standing Senate Committee on National Finance.

On December 1, 2022, MKO also requested to be invited to appear before the Indigenous Peoples Committee and the Energy Committee with regard to Part 4 of Division 3 of Bill C-32. To date, MKO has not received correspondence from either committee on the decision about their request to appear. More importantly, they have not been informed if or how their critical submission was taken into account.

Colleagues, MKO has championed thoughtful and determined efforts to uphold First Nations’ rights to enforce and adjudicate First Nations laws enacted pursuant to the First Nation Land Management Act and of bylaws enacted pursuant to the Indian Act. The MKO is underscoring that the intent behind Parliament establishing these law-making regimes further to the inherent right of self-government is to move towards establishing the third level of government in the nation-to-nation relationship that the federal government speaks about.

However, these law-making regimes in First Nations communities are currently being rendered inactive by the policies and inaction of the Government of Canada and of the RCMP. The result, Grand Chief Settee says, are “stranded regimes” of unenforceable First Nation laws and bylaws.

What are the results of these stranded regimes? MKO Grand Chief Settee wanted to share critical information with all honourable senators about the real-life experiences of MKO First Nations in their struggle to apply enforcement of the self‑governing law-making authorities of First Nations enacted through previous legislation, Bill C-49 in 1999 and Bill C-428 in 2015. Why do these uncertainties persist, despite legislation that was supposed to correct these injustices?

These real-life experiences impacted all communities that were then forced to scramble to best protect their people. This included lockdowns; social distancing; maximum number of patients in a dwelling, business or facility; trespass by prohibited persons during bans on non-resident travel; and health checks of persons entering the community — all protections afforded to other Canadians.

Honourable senators, one example that I previously read into the record recounts that the chief and council, First Nation safety officers and the pandemic response coordinator of the Misipawistik Cree Nation were abandoned by RCMP, who refused to enforce the COVID-19 emergency law enacted under the Misipawistik Land Code during the midst of a major outbreak of COVID-19 in the community.

The Public Prosecution Service of Canada has gone on record to say that PPSC has no mandate to prosecute offences under First Nation land code laws under the First Nation Land Management Act.

The First Nations Land Management Act was enacted to recognize the inherent right of self-government and the nation‑to‑nation relationship by providing the option to replace parts of the Indian Act. Where is this recognition of self‑government when First Nations laws enacted further to a land code to protect the health and lives of First Nations during a declared global pandemic are then not recognized, respected, enforced and prosecuted? Requests for help in an emergency situation must be acted upon in a timely manner. Such requests cannot wait idly for the Attorney General’s blessing — something that could take literally months to occur.

Colleagues, I concur with the statements by Senator Patterson that our pre-study of Bill C-32 has served only to rush legislation. I appreciate the senator’s view that:

. . . with Indigenous or grassroots organizations that often already face capacity issues, we need to give as much notice as possible to prospective witnesses. We need to slow down and make sure we are properly reviewing legislation, taking the time to hear from as many people and as many different perspectives as possible.

I acknowledge and concur with the statements made by Senator Francis that:

. . . we are responsible for ensuring that the voices of historically marginalized, under-represented and oppressed individuals and groups are heard and acted on.

I also share the view of Senator Francis that:

I further hope that the members of the Committee on National Finance have an opportunity to hear directly from MKO and perhaps others in relation to the proposed Framework Agreement on First Nation Land Management Act.

As requested by Senator Loffreda at the National Finance Committee, I, too, am looking forward to comments from the Deputy Prime Minister and Minister of Finance on the concerns about Bill C-32 raised by MKO, to which the Deputy Prime Minister and Minister of Finance advised as being, “Duly noted.”

Honourable senators, the two amendments identified and submitted by MKO refer to two other acts of Parliament that are not included in Bill C-32 but directly impact the ability of enforceability by the First Nations land code laws. These two acts that impact the enforcement and prosecution of First Nations laws enacted pursuant to a land code include the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, and the Director of Public Prosecutions Act, S.C. 2006, c. 9, s. 121.

I believe that it was a serious oversight that these two statutes were not amended when this Framework Agreement was enacted in 1999. The problems with enforcement and prosecution were known in 1999 when Bill C-45 was first enacted, but they were thought of as being part of an ongoing, longer term discussion that never took place. The COVID-19 pandemic starkly illuminated the effects of the failure to enforce and prosecute.

Honourable senators, when I speak about the gaps created by legislation we pass, this is but one example. Because of this legislation, which is, once again, being rushed through this place, we are unable to do our fulsome research on the impact this legislation has on First Nations impacted by the bill. It also precludes us from identifying what recourse we have to best speak for the people for whom we have responsibilities. How can we practice reconciliation under such conditions?

It makes it very difficult to come up with solutions to help First Nations navigate the injustices created by siloed legislation. We must acknowledge the reality that we are seeing that pre‑studies only add to the silencing of First Nations’ voices. We must do better, and we must demand better. Kinanâskomitin. Thank you.

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