Manufactured Consent A New Wave in Colonization

Proposed Legislation by the Federal Government

Presented by: Sharon Venne

Language Culture LandTerritoryPeopleEducationHealthHousingAbility to make agreements

•Royal proclamation of 1763, says no entrance into indigenous territory with out a treaty.•Created Canada in 1867, Canada never made treaties.•British North America Act created provinces.

TREATIES

Bill S-8: An Act Respecting the Safety of Drinking

Water on First Nation Lands Short Title: “Safe Drinking Water for First Nations Act”

Passed by Senate June 18, 2012 1st Reading – February 29, 2012 2nd Reading – April 25, 2012 3rd Reading – June 18, 2012

House of Commons 1st Reading – June 19, 2012 2nd Reading- November 01, 2012

Link to Legislation: http://www.parl.gc.ca/LEGISINFO/BillDetails.aspx?Language=E&Mode=1&billId=5409479

Contents of the water legislation

The government of Canada says that the legislation is to “addresses health and safety issues” on reserved lands.

The act is to provide for regulations to govern drinking water and waste water treatment in First Nations communities. HOWEVER

Regulations will be made on a province-by-province basis to mirror existing provincial regulatory regimes, with adaptations to address the circumstances of First Nations.

This moves away from National Standards and puts the provinces and their standards in place on the reserved lands.

• Section 91(24) of the Constitution Act, 1867 grants to the federal government exclusive jurisdiction over “Indians and lands reserved for the Indians,” provincial regulatory water standards do not apply to on-reserve First Nations communities.

• There has been no federal legislative framework governing drinking water and waste water in First Nations communities beyond what is set out in federal policies, administrative guidelines, and funding arrangements.

WHAT IS WRONG WITH PICTURE?

The federal government says that there is no standards or framework for water and waste water?

Why not? The federal government has not recognized

the treaty rights to water and has not assisted the Nations maintain clean water or develop and maintain standards related to water.

Now, the federal system wants to turn this mater over to the Provinces.

Where is the treaty relationship?

What the legislation does not do

It does not stipulate funding commitments and funding roles for the government departments responsible for water on First Nation reserves (Indian and Northern Affairs Canada, Health Canada and Environment Canada).

With the lack of funding commitments, there is a real concern it could lead some communities to privatize their water systems. The Bill gives the federal government the power to force First Nation communities to allow private companies to build, operate and manage their water services.

First Nation communities were not consulted in the development of the bill and the legislation does not require consultation in developing regulations on safe drinking water for First Nation communities.

The Bill is a framework that can be used by the federal government to download its responsibilities to First Nations onto provinces.

Bill S-2: An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights in or to

structures and lands situated on those reserves

Short Title: “Family Homes on Reserves and Matrimonial Interests or Rights Act”

Passed by Senate December 1, 2011 1st Reading – September 28, 2011 2nd Reading – November 1, 2011 3rd Reading – December 1, 2011

House of Commons 1st Reading – December 8, 2011 2nd Reading – November 01, 2012

Link to Legislation: http://www.parl.gc.ca/LEGISINFO/BillDetails.aspx?Language=E&Mode=1&billId=5138145

BACKGROUND

Canada’s law -the Indian Act does not contain any laws that apply to MRP on reserve land.

The Indian Act does not control the reserved lands.

When a marriage or relationship ends, couples who live on reserve cannot use the non-Indian laws to help them carry out their plans if they agree on how to deal with their matrimonial real property.

SECTION 88

Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act…

This used to be section 87 of the Indian Act – first introduced into the Act in 1951.

Introduced without the consent of Treaty Peoples

RESERVED LANDS

Since the White Paper of 1969, Canada has been trying to get the “reserved lands” into the provincial jurisdiction.

There were a number of court cases to get section 88 of the Indian Act to apply on reserved lands.

Section 88 of the Indian Act was never applied to the reserved lands. Section 88 was used to apply to individuals but not to the lands.

MATRIMONIAL PROPERTY

This legislation has been introduced on previous occasions when there was a minority government.

The draft law gives rights on the reserve to a spouse whether they are an Indian or not.

The provincial family law judges will make decisions based on their values and will be applied on the reserved lands

The reserved lands will come under the provincial laws via this proposed law.

Bill C-428: An Act to Amend the Indian Act and Provide for

its Replacement

Proposed as a Private Member’s Bill by Conservative MP Rob Clarke

House of Commons 1st Reading – June 4, 2012

2nd Reading – October 18, 2012 – it was announced that the Conservative Party have adopted the Bill – now has the weight of a majority of the Members of Parliament.

Link to Legislation: http://www.parl.gc.ca/LegisInfo/BillDetails.aspx?billId=5618344&Mode=1&Language=E

WHAT IS IN THE BILL?

The Bill is to remove two key parts of the Indian Act.

It is going to remove the provisions on wills and estates. Without the provisions in the Indian Act, the provinces’ wills and estates will use provincial laws and applied on the reserves.

The provisions on schools will also be removed.

PROVINCIAL LAWS APPLY

The Intestate provisions of the Indian Act would allow provincial laws to make decisions on property of Indians who die without a will.

The decisions made on the property will be based on provincial standards not our standards.

The removal of the parts on education leaves a hole for the proposed Education Act that was rejected by the Chiefs in October 2012.

An Act to provide for Jurisdiction over Education on First Nation Lands in British Columbia Act (S.C. 2006, c. 10)

Short Title: “First Nations Jurisdiction over Education in British Columbia Act”

Royal Assent – December 12, 2006 Link to Legislation:

http://laws-lois.justice.gc.ca/eng/acts/F-11.75/FullText.html

FEDERAL EDUCATION ACT

There is a background to this legislation. In British Columbia, there was first a bilateral

committee on education to discuss many issues then the committee was expanded to include the province of British Columbia.

This trilateral group went to Ottawa to ask for this Act.

The legislation lifted the lands and schools out of 91 (24) .

The Act was in place for seven days when the province passed legislation to accept the jurisdiction.

First Nations Education Act [Statutes of British Columbia 2007]

Chapter 40

• This legislation is a companion to the federal act. • In the five years since the legislation was enacted, there has been problems with

implementation.• At the education meeting held in early October 2012, the delegates from British

Columbia were saying that the federal government is telling them that they must come up with their own source revenue to make the acts work.

Link to Legislation http://www.leg.bc.ca/38th3rd/3rd_read/gov46-3.htm

BRITISH COLUMBIA LAW

This legislation was passed seven days after the federal legislation.

The legislation needed to wait for the federal legislation so as to accept the transfer of the authority from the federal system to the province.

The jurisdiction was completed and amounts to a constitutional amendment.

Now, there is a problem with education

WHAT IS THE PROBLEM?

The transfer of the Schools and the lands have come from the federal government without the matching funds.

In the five years, there has been no funds from the federal government to implement.

The federal government has recently told the Indians in B.C. that they need to come up with own source revenue(OSR) and the feds might match them.

The B.C. and Maritime Indians think that National legislation will solve their funding problems.

QUESTION

WHY WOULD THE FEDERAL GOVERNMENT FUND THIS PROCESS WHEN THEY GOT THEM TO AGREE TO TRANSFER THE JURISDICTION FROM THE FEDERAL TO THE PROVINCE?

THE FEDERAL GOVERNMENT HAS GOTTEN THE WHITE PAPER TO IMPLEMENTED IN EDUCATION IN B.C. WHY WOULD THEY GO BACKWARDS?

British Columbia Tripartite Framework Agreement on First Nation Health Governance

Made as of the 13th day of October, 2011

Link to Document: http://www.hc-sc.gc.ca/fniah-spnia/alt_formats/pdf/pubs/services/tripartite/framework-accord-cadre-eng.pdf

HEALTH GETS TRANSFER

In October 2011, there was a transfer from National Health and Welfare to a newly created and provincially incorporated body of 380 million dollars for health care delivery

The super board will make decisions on health funding.

This is done on a provincial wide board rather than treaty area.

No treaty right in the transfer Next attack on the treaty right

Bill C-27: An Act to enhance the financial accountability and

transparency of First Nations

Short Title: “First Nations Financial Transparency Act” House of Commons

1st Reading – November 23, 2011 2nd Reading – June 21, 2012

Concurrence at Report Stage 2012-11-26

Read more: http://www.ottawacitizen.com/business/Conservatives+putting+First+Nations+accountability+bill+fast/7589564/story.html#ixzz2DOFzhGTQ

Link to Legislation: http://www.parl.gc.ca/LEGISINFO/BillDetails.aspx?Language=E&Mode=1&billId=5258273

ELEMENTS OF THE BILL

First Nation have to pay for the services of the auditor to meet the standards set by the government of Canada. If the Auditor does not provide this accounting to government, the First Nation will be paying back money or not receiving money in the future. How audits are conducted, under GAAP, is carefully laid out in agreements First Nations sign with the federal government and;

Bill C-27 requires that all the money that is the First Nation’s must be placed in the financial statements that become information that is in the public domain

INDIAN MONIES

The money regulated in the Indian Act and with this Bill, the Minister seeks to broaden that authority to any money the First Nation receives, not just money from INAC

But from the First Nation’s own source revenues, grants from organizations, provincial governments and any other entities.

Those sources of revenue would not be considered “Indian Moneys” nor can it be considered money from the Federal government.

The Federal Government does not have jurisdiction over moneys received from other sources and cannot compel the First Nation to be providing this information to the public.

WHAT CAN BE DONE?

The Indigenous Nations are not going to account for funds derived from sources other than the federal monies.

The Minister be challenged in the government’s attempt to implement the legislation that is considered unconstitutional and a violation of the treaties.

Closure on the bill

Aboriginal Affairs Minister John Duncan said Wednesday (Nov. 21) his party is forcing a vote to shut down debate on a financial transparency bill that will require First Nations chiefs and councillors to publish their salaries and expenses.

The move means the bill will pass the House of Commons —over the objections of chiefs, as well as the federal NDP and Liberals.

This legislation is far too broad including money which the Federal Government has no jurisdiction over.

Omnibus Bill C-38: An Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures

Amendments to: An Act respecting the environmental assessment of certain activities and the prevention of significant adverse environmental effects

Affects environmental and water reviews related to reserved lands The Nations should start asserting their inherent rights over their

territory as the federal system has vacated the field.

Link to Legislation: http://parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=5524772&Col=1&File=4

Omnibus Bill C-45: A second Act to implement certain provisions of the

budget tabled in Parliament on October 18, 2012 and other

measures Short Title: “Jobs and Growth Act, 2012”

House of Commons First Reading – October 18, 2012 Second Reading – October 26, 2012 Finance Committee hearing – November 21, 2012 Report to the House of Commons – November 26, 2012 Third reading – December 05, 2012 Next step – goes to the Senate

Link to Legislation: http://www.parl.gc.ca/LegisInfo/BillDetails.aspx?Language=E&Mode=1&billId=5754371&View=0

Omnibus Bill C-45: A second Act to implement certain provisions of the

budget tabled in Parliament on October 18, 2012 and other

measures - cont Sections of Concern (s. 206 – 209) - Amendments to the Indian

ActAccording to Government Official: The amendments would allow First Nations communities to lease

designated reserve lands based on a majority of votes from those in attendance at a meeting or in a referendum, instead of waiting for a majority vote from all eligible voters. The onus would be on the First Nation members to turn out if they wanted to have a say.

The Indian Affairs Minister would be given the authority to call a band meeting or referendum for the purpose of considering a surrender of the band's territory. The Minister could also accept or refuse the land designation after receiving a resolution from the band council.

(Source: http://www.cbc.ca/news/politics/story/2012/10/19/pol-list-2nd-omnibus-bill.html)

Link to Legislation: http://www.parl.gc.ca/LegisInfo/BillDetails.aspx?Mode=1&Language=E&billId=5258273&View=0

Omnibus Bill C-45 - Update

Letter sent to Chiefs and Councils – October 22, 2012 (re: s. 206-209 of Bill C-45). “Our Government is responding to these concerns by finding ways to

streamline internal processes for granting land designations, without detracting from the quality of service provided to First Nations or the ability of First Nations to provide their informed consent to a land designation. Consequently the proposed amendments will: Reduce the voting threshold from a “majority of a majority” to a

“simple majority vote” (majority of those who show up to vote in favour), and

Reduce the red tape involved in getting final approval by the Department by changing the requirement for Governor in Council approval to ministerial approval

Both of these initiatives are anticipated to cut down on the length of time that it takes to bring forward land designations on reserve by several months, thereby increasing the rate of economic development opportunities on reserve.

(Source: Letter sent by Minister John Duncan of AAND to Chiefs and Council)

Proposed law for Private Property on Reserves

Coming legislation from Federal Government The Harper government will consult with native leaders before introducing

the legislation. Manny Jules, who heads the First Nations Tax Commission, has drawn up a template for legislation, but the word in Ottawa is that a bill is not expected to arrive until 2013. (Source: http://www.theglobeandmail.com/news/politics/do-opponents-of-native-property-rights-think-things-are-okay-now/article4468909/)

The Conservative government will introduce legislation that would allow First Nations members living on reserve to own their property, a radical change that aims to spur economic development in native communities that choose to embrace the new law.

It’s all part of an ambitious Conservative agenda to bring fundamental changes to relations between Ottawa and the First Nations – on property rights, on matrimonial rights, on financial transparency and on education. (Source: http://www.theglobeandmail.com/news/politics/harper-government-to-introduce-law-to-allow-private-property-on-reserves/article4464434/)

BILL C-48 Introduced on 21 November 2012 FIRST NATIONS GOODS AND SERVICES TAX ACT

2005, c. 19, s. 3(1) 421. The definition “administration agreement” in subsection 2(1) of the First Nations Goods and Services Tax Act is replaced by the following:

“administration agreement” in Part 1, means an agreement referred to in subsection 5(2) and entered into with the authorized body of a first nation and, in Part 2, means an agreement referred to in section 22 and entered into with a council of the band.

2005, c. 19, s. 5 422. Subsection 3(1.1) of the Act is replaced by the following:

Section 89 of Indian Act (1.1) A first nation law, as defined in subsection 11(1) or 12(1), or an obligation to pay an amount that arises from the application of section 14, may, despite section 89 of the Indian Act, be administered and enforced by Her Majesty in right of Canada, by an agent of the first nation or, if the first nation law is administered by the government of a province under an agreement entered into under section 7 of the Federal-Provincial Fiscal Arrangements Act, by Her Majesty in right of the province.

423. Subsection 4(9) of the Act is replaced by the following:

Reporting and payment of tax(9) Tax that is imposed under a law of a first nation enacted under subsection (1) in respect of the bringing of property onto the lands

Text of Bill C 48 of the first nation shall become payable by the person who brings it onto the lands at the time it is brought onto the lands

and (a) if the person is a registrant who acquired the property for consumption, use or supply primarily in the course of

commercial activities of the person, the person shall, on or before the day on or before which the person’s return in respect of net tax is required to be filed under the law of the first nation for the reporting period in which tax became payable,

(i) report the tax in that return, and (ii) pay the tax to the Receiver General, or, if the law of the first nation is administered by the government of a province

under an agreement entered into under section 7 of the Federal-Provincial Fiscal Arrangements Act, to the appropriate minister for that province; and

(b) in any other case, the person shall, on or before the last day of the month following the calendar month in which the tax became payable,

(i) file with the Minister of National Revenue or, if the law of the first nation is administered by the government of a province under an agreement entered into under section 7 of the Federal-Provincial Fiscal Arrangements Act, with the appropriate minister for that province a return in respect of the tax, in the manner and in the form authorized by the Minister of National Revenue and containing information specified by that Minister, and

(ii) pay the tax to the Receiver General or to the appropriate minister for that province, as the case may be.

424. (1) Paragraphs 5(2)(e) and (f) of the Act are replaced by the following:

(e) for the administration and enforcement of the first nation law by the Government of Canada or, if the first nation law is administered by the government of a province under an agreement entered into under section 7 of the Federal-Provincial Fiscal Arrangements Act, by the government of the province and for the collection, by the Government of Canada or the government of the province, as the case may be, of amounts imposed under that law;

(f) for the provision by the Government of Canada or, if the first nation law is administered by the government of a province under an agreement entered into under section 7 of the Federal-Provincial Fiscal Arrangements Act, by the government of the province to the first nation of information acquired in the administration and enforcement of the first nation law or, subject to section 295 of the Excise Tax Act, of Part IX of that Act, and for the provision by the first nation to the Government of Canada or the government of the province, as the case may be, of information acquired in the administration of the first nation law;

(2) Subsection 5(5) of the Act is replaced by the following:

Payments to other persons(5) Subject to subsection (6),

if an administration agreement has been entered into in respect of a first nation law, as defined in subsection 11(1) or 12(1), payments may be made to a person out of the Consolidated Revenue Fund on account of any amount that is payable to the person under that law in accordance with the agreement unless the first nation law is administered by the government of a province under an agreement entered into under section 7 of the Federal-Provincial Fiscal Arrangements Act.

425. Section 16 of the Act is replaced by the following:

Information reports 16. (1) If an administration agreement entered into by the authorized body of a first nation is in effect in respect of a first nation law, as defined in subsection 11(1) or 12(1), the Minister of National Revenue or, if the first nation law is administered by the government of a province under an agreement entered into under section 7 of the Federal-Provincial Fiscal Arrangements Act, the appropriate minister for that province may, for the purposes of the administration agreement, require any person having a place of business, or maintaining assets of a business, on the lands of the first nation to make a report respecting supplies relating to that business made by the person or property or services acquired or imported for consumption, use or supply in connection with those lands and that business.

Form and manner of filing(2) A report under subsection

(1) shall be made in the manner and form authorized by the Minister of National Revenue and at the time and containing information specified by that Minister. The report shall be filed with the Minister of National Revenue or, if a first nation law is administered by the government of a province under an agreement referred to in that subsection, with the appropriate minister for that province.