Unconditional II – MP’s private members bill becomes law

by Derek Cornet

First Nations have a special relationship with the federal government because of the Indian Act. The Act legislatively made First Nations people wards of the Canadian state, which gave parliament the power to draft laws that effected their day-to-day lives. The following is the second part of a four part series focusing on Rob Clarke’s private members bill. This article focuses on First Nation history with the Crown and what Clarke’s bill achieved.

“An act to amend and consolidate the laws respecting Indians” was the original title of the Indian Act when it was first passed by the federal government in 1876.

Ten years later, however, many strict changes had already been made. Among them were the prohibition of sales of agricultural produce without a permit, youth were forced to attend schools and religious ceremonies such as the potlatch and sun dance were banned.

Native studies university instructor April Chiefcalf – who has taught aboriginal history in northern Saskatchewan for close to 15 years – said the Indian Act was initially passed to protect First Nations land and treaty rights, as well as provide uniform legislation that would apply to all First Nations people in Canada, but quickly became a mechanism of control.

“It was no longer about protecting aboriginal rights,” Chiefcalf said. “It’s significant to noted while treaty negotiations were going on, the government was designing the Indian Act and they were not informing First Nations.”

When the Canadian government formed in 1867, the legislative body adopted laws and policies created by the United Kingdom. Those laws included the Royal Proclamation of 1776, which was a pivotal document acknowledging First Nation sovereignty and land rights. This document instructed British colonial governments to pursue treaties with native people – nation-to-nation – as equals. King George III issued the proclamation after an outcry from native people who were upset because, even though they had help the English defeat the French, their rights were being overlooked.

Not until after the Second World War did Canada begin to review it’s repressive legislation. Chiefcalf said First Nations people had fought in high numbers during the world wars. While the government recognized their contribution, it was also aware of the devastating effect of racists legislation after the surrender of Germany.

“They did take into consideration a lot of requests made by First Nations people,” Chiefcalf said. “For example, the lifting of the ban on the potlatch and sun dances in 1951. From there, they have been slowly giving more control to First Nations but that comes after almost a century of taking control away from First Nations people.”

When Desnethé–Missinippi–Churchill River MP Rob Clarke finished the first draft of his bill he called it “An act to repeal the Indian Act in its entirety.” Clarke claimed he did so for shock value and to call attention to the bill. It was first read in the House of Commons in May 2012, had its second reading in December of the same year and its third reading on Nov. 20, 2013.

“You saw my bill change from blowing up the Indian Act and getting rid of it totally,” Clarke remarked.

The bill underwent five different drafts and its final version included several major changes to the Indian Act. It removes references of residential schools, the mandatory requirement of First Nations under the age of 17 attend school and also lifts the requirement of seeking a permit to sell agricultural products.

Clarke identified the replacement of Section 86 of the Indian Act regarding bylaws was a major piece of the bill. Clarke rewrote the entire section and also included five subsections under it. He said the change allows bands to implement bylaws faster. Bands no longer need to send the bylaw to the Minister for approval, but do need have it published in a newspaper and on an Internet site where it will remain visible. Clarke said, before the change, the bylaw could take two to three years to come into effect.

“By then, you’re just trying to put a Band Aid on an issue,” he said. “Now, it gives them the opportunity to prohibit those individuals from working, living or presiding on the reserve by getting rid of the predators who are living off the vulnerable.”

On Nov. 21, 2013, the bill was introduced and read in the Senate and, more than a year later, it received Royal Ascent and became law. Now, the Minister of Indian Affairs and Northern Development must report to a House of Commons committee within 10 sitting days every calendar year regarding the work that’s been done to replace the Indian Act. Clarke noted it’s his biggest accomplishment of the bill, but it’s up to First Nations to pursue.

“That’s where First Nations needs to be actively involved and provide their submissions of what they’d like to see done in the years to come,” he said. “That’s an opportunity First Nations should grasp.”

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