Media.Knet.Ca

A Communiqué from National Chief Phil Fontaine

Update in Key Legislation Affecting First Nations

June 2008

The Assembly of First Nations issues regular updates on the National Chief’s activities and work underway at the national office. More information can be found on the AFN’s website at www.afn.ca.

Update in Key Legislation Affecting First Nations

The House of Commons has wrapped up its business and is about to take its usual Summer break. It has been a busy parliamentary session. We have seen new legislation put forward on issues like specific claims and matrimonial real property, and events such as the recent apology for the Indian residential schools experience.

With Parliament about to break and with the AFN’s Annual General Assembly approaching, this is an opportune time to look at the legislative developments on the issues that are key to First Nations.

Bills That Have Passed

1. Specific Claims Tribunal Act – Bill C-30 is the legislation which establishes a new approach to resolving First Nations specific claims, and includes the creation of a new independent tribunal to rule on claims that are either rejected for negotiation or which cannot be resolved through negotiation. There is also a companion Political Agreement that ensures the AFN and government will continue to work on issues not covered by the legislation. Many First Nations appeared before the Parliamentary Committee to express their views on the Bill and the AFN assisted, where requested, in these presentations.

Bill C-30 was passed by the House of Commons and Senate and received Royal Assent on June 18, 2008. Royal Assent is followed by a 120 day period in which the independent tribunal will be established. During the 120 day period, the AFN and government, collaborating as a part of the Political Agreement, will deal with various rules and procedures related to the tribunal. As well, work will continue under the Political Agreement to deal with other matters not covered in the legislation, such as developing a process to address claims that exceed the $150 million limit of the tribunal, as well as preparing for the 5 year review of this legislation.

The legislation, Political Agreement, and other resource materials are available on the AFN website or upon request.

2. Canadian Human Rights Act On-reserves - Bill C-21 is legislation which repeals section 67 of the Canadian Human Rights Act (CHRA), which means that the CHRA will apply to all decisions made under the Indian Act. The legislation was passed by the Senate and received Royal Assent on June 18, 2008.

The legislation in its original form was of great concern to First Nations, most notably because of the potential for infringement of Aboriginal and Treaty rights and the short time-frame for implementation. These concerns were shared by many other organizations, including the Native Women’s Association of Canada, Canadian Bar Association and the Canadian Human Rights Commission. In addition, First Nations were not properly consulted on the legislation.

The AFN, the AFN Women’s Council, and First Nations across the country strongly advocated for the necessary changes. Most of the concerns have been addressed. The federal government is now required to analyze the potential impacts of the legislation on First Nations, assess the existing capacity to deal with complaints and identify capacity gaps.

An interpretive clause and a non-derogation clause will allow for First Nations to balance the new legislation with traditional and customary laws to ensure that our collective rights are respected in the process. As well, the time frame for implementation concerning decisions affecting First Nations governments has now been lengthened to 36 months. However, the legislation will apply immediately to decisions of the Government of Canada, so First Nations citizens can proceed with complaints of discrimination against the federal government immediately.

The AFN is beginning discussions with the Canadian Human Rights Commission about a program of work to conduct the impact and capacity study and to inform the Commission’s ability to balance collective and individual rights.

3. The Kelowna Accord - Bill C-292 is a private member’s Bill put forward by former Prime Minister Paul Martin that calls on the government of Canada to act on the commitments and targets in the Kelowna Accord, an agreement struck with the federal government, all premiers, territorial leaders and Aboriginal leaders at the 2005 First Ministers Meeting in Kelowna. The AFN supports the Kelowna Accord and therefore supports the Bill, but it carries no financial commitments.

The Bill has received Royal Assent and First Nations will continue to press Canada to honour the will of Parliament, honour the Kelowna Accord and work with First Nations to implement our comprehensive plan to turn poverty into prosperity.

Bills That Have Not Yet Passed

1. Tsawwassen First Nation Final Agreement – Bill C-34 is a Bill that serves as a modern Treaty between the Tsawwassen First Nation and the Government of Canada. Having first passed a referendum within the First Nation and approval by the Province of British Columbia, it passed First Reading in the Senate on June 17 and may be completed before the Senate rises for its Summer break.

2. Matrimonial Real Property – Bill C-47 has completed Second Reading in the House of Commons but has not yet been examined by the Standing Committee. First Nations have consistently expressed a clear position in regards to this matter: that a solution must respect Aboriginal and Treaty rights, must support the recognition and implementation of First Nation governments and must ensure meaningful and direct consultation with First Nations.

Preliminary assessments of Bill C-47 reveal that the Bill fails on all of these points and, further, will not even deliver increased access to justice or interim remedies for women, men and families (please see the interim analysis posted on our website for full details). The Chiefs-in-Assembly expressed this position in resolution 2006/72 and AFN detailed the position in our report: Reconciling First Nations and Crown Jurisdiction over MRP on Reserves and Addressing Immediate Needs of First Nations Families.

AFN and the AFN’s Women’s Council are working with all interested organizations and representatives to coordinate and launch an advocacy strategy with all Parliamentarians in an attempt to re-direct this legislative process. This effort is anticipated to begin in earnest this Fall and we will encourage everyone to visit our web-site to view updates as well as to engage directly in the Parliamentary process.

3. First Nations Fisheries – Bill C-32 is a Bill that would make a number of changes to the federal Fisheries Act. The Bill was drafted without consultation with First Nations and has the potential to undermine First Nations Aboriginal and Treaty rights. The Bill has not yet completed Second Reading in the House of Commons and will not become law any time soon. The AFN will continue to monitor federal action on this Bill and will work to ensure First Nations rights and Treaties are respected and protected.

4. Indian Oil and Gas – Bill C-63 was introduced in the House of Commons in the final week of the session and, as such, will not pass during this sitting. The Bill proposes a number of changes to existing regulations relating to environmental protection, collection of royalties and other aspects of the current act. The AFN is examining the Bill and will provide more information on potential impacts.

Other Legislation

One other piece of legislation has been introduced and, while there has been little progress, it is worth highlighting.

1. Changes to the Food and Drug Act - Bill C-51 is a Bill that would amend the Food and Drugs Act and would regulate certain activities in relation to foods, therapeutic products and cosmetics. There is no specific mention of First Nations in the draft Bill but the AFN is concerned that a broad definition of the term “therapeutic products” could lead to restrictions on traditional medicines by regulating them in the same manner as pharmaceutical drugs.

Health Canada has been clear that the Bill is not meant to apply to traditional medicines, but the AFN will continue to monitor the development and progress of this Bill and is preparing a related resolution for the upcoming Annual General Assembly.

Next Steps

The AFN will continue to be vigilant in dealing with the Bills that will now come into force, as well as monitoring the progress of any and all bills that affect First Nations people, First Nations rights and Treaties.

I look forward to a good discussion on this at our upcoming Annual General Assembly in Quebec City. We will continue to keep you updated on any developments related to the well-being of our people, our communities and our nations.

Meegwetch!