AANR Committee Meeting

37th PARLIAMENT, 2nd SESSION

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

EVIDENCE

CONTENTS

Tuesday, February 11, 2003

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1550

The Chair (Mr. Raymond Bonin (Nickel Belt, Lib.))

Mr. Warren Johnson (Assistant Deputy Minister, Lands and Trust Services, Department of Indian Affairs and Northern Development)

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1555

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1600

º

1605

º

1610

The Chair

Mr. Warren Johnson

The Chair

Mr. Maurice Vellacott (Saskatoon—Wanuskewin, Canadian Alliance)

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1615

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Andrew Beynon (General Counsel, Department of Indian Affairs and Northern Development)

Mr. Maurice Vellacott

Mr. Andrew Beynon

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1620

Mr. Maurice Vellacott

Mr. Andrew Beynon

Mr. Maurice Vellacott

Mr. Andrew Beynon

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Yvan Loubier (Saint-Hyacinthe—Bagot, BQ)

Mr. Warren Johnson

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1625

Mr. Yvan Loubier

The Chair

Mr. Pat Martin (Winnipeg Centre, NDP)

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1630

Mr. Warren Johnson

Mr. Andrew Beynon

The Chair

Mr. Warren Johnson

The Chair

Mr. Julian Reed (Halton, Lib.)

Mr. Warren Johnson

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1635

The Chair

Mr. Warren Johnson

Ms. Brenda Kustra (Executive Advisor, Department of Indian Affairs and Northern Development)

Mr. Julian Reed

The Chair

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

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1640

Mr. Warren Johnson

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Gérard Binet (Frontenac—Mégantic, Lib.)

Mr. Warren Johnson

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1645

Mr. Gérard Binet

Mr. Warren Johnson

The Chair

Mr. Yvan Loubier

Mr. Warren Johnson

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1650

Mr. Yvan Loubier

Mr. Warren Johnson

The Chair

Ms. Nancy Karetak-Lindell (Nunavut, Lib.)

Mr. Warren Johnson

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1655

The Chair

Mr. Pat Martin

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1700

Mr. Warren Johnson

Mr. Pat Martin

Ms. Brenda Kustra

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

Mr. Andrew Beynon

Mr. Pat Martin

Mr. Andrew Beynon

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1705

Mr. Pat Martin

Mr. Andrew Beynon

Mr. Pat Martin

The Chair

Ms. Anita Neville (Winnipeg South Centre, Lib.)

Mr. Warren Johnson

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1710

Ms. Anita Neville

Ms. Brenda Kustra

The Chair

Mr. Maurice Vellacott

Ms. Brenda Kustra

Mr. Maurice Vellacott

Mr. Andrew Beynon

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1715

Mr. Maurice Vellacott

Mr. Andrew Beynon

The Chair

Mr. John Godfrey (Don Valley West, Lib.)

Mr. Andrew Beynon

Mr. John Godfrey

Mr. Andrew Beynon

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1720

The Chair

Mr. Yvan Loubier

Mr. Warren Johnson

»

1725

Mr. Yvan Loubier

The Chair

Mr. Pat Martin

Mr. Andrew Beynon

Mr. Pat Martin

Mr. Andrew Beynon

Mr. Pat Martin

Mr. Andrew Beynon

Mr. Warren Johnson

Mr. Pat Martin

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1730

Mr. Andrew Beynon

The Chair

Mr. Warren Johnson

The Chair

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CANADA

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

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NUMBER 025

l

2nd SESSION

l

37th PARLIAMENT

---

EVIDENCE

Tuesday, February 11, 2003

[Recorded by Electronic Apparatus]

¹  (1550)  

[English]

    The Chair (Mr. Raymond Bonin (Nickel Belt, Lib.)): Welcome, everyone, as we resume deliberations on Bill C-7.

    We have with us today, from the department, Mr. Warren Johnson, assistant deputy minister, lands and trust services; Brenda Kustra, executive director; and Andrew Beynon, general counsel.

    Welcome. We ask you to make a presentation that will be followed by questions. You know the routine. If a member's question is too long, our guests are the ones who will get cut off. I apologize before I do it.

    Please carry on.

    Mr. Warren Johnson (Assistant Deputy Minister, Lands and Trust Services, Department of Indian Affairs and Northern Development): Thank you, Mr. Chairman.

    We'd like to thank the committee for the opportunity to provide this presentation.

    I hope to focus my opening remarks on those areas that might be more important clarifications, given the issues that have arisen in the committee's review of Bill C-7 to date.

    Because there have been a large number of comments, not only on the bill itself, but on the genesis, process, and timing of this initiative, I would like to start in reference to these issues, drawing from the background presentation we made to the committee last February.

    FNG, as it has come to be called, in fact commenced four years ago with the Corbiere decision of the Supreme Court of Canada. At that time, first nations were concerned that the 18 months the Supreme Court of Canada had given was too short for legislative reform to the election provisions of the Indian Act.

    Therefore, the federal government undertook a two-stage strategy, starting with regulations to give the decision effect, to be followed by legislative changes called for by the Supreme Court. We then consulted not only on the regulations that needed to be put in place to give effect to the decision in the short term, but on how to approach the broader legislative challenge that the Supreme Court had put to Parliament.

    Suffice it to say that after 18 months of work, analysis, and consultations post-Corbiere, there was effective agreement on the need to look at broader legislative change to the Indian Act than just elections. Subsequent to that, we had some six or nine months of informal discussions and workshops, including a number of public engagements from the minister, a number of which were highlighted in our presentation to the committee last February.

    We then spent almost a year consulting under the title “Communities First”, and many more months analyzing the results and awaiting the recommendations from the joint ministerial advisory committee. All of this was done before we started looking at legislative drafting.

    We now have this committee's process and your potential recommendations, after which, as the minister has publicly committed from the outset, we will enter another round of consultations with first nations to jointly develop the supporting regulations and deal with the implementation and costing issues.

    Once the regulations are passed, we would then enter the two-year transition period called for in the legislation before the regulations that we need to develop with first nations would apply to those who were not ready or did not feel the need to adopt their own codes prior to that point. Of course, they could do so at any time afterwards as well.

    This whole process will then have encompassed at least seven years to that point.

    Let me turn to the process. Since we are dealing with the basic issues of citizenship, as the minister referred to in his remarks to you, from the outset, all the advice we received was that we needed to design a process that was completely transparent, and where we and first nations leaders could jointly and substantively engage first nation citizens. This we did.

    National, regional, and local leaders were invited to jointly participate in community consultations on and off reserve. However, it is true that not all leaders agreed to participate. As a result, we were not able to go to communities where the leadership did not accept the invitation to work with us and to have their people consulted.

    However, despite the calls for a boycott from some quarters, we achieved the highest level of participation of any previous round of aboriginal consultations, both on a community and on an individual basis. To clarify another question put before this committee, roughly 50% of the participants were, in fact, first nations women.

    Looking now at the scope of Bill C-7, it was clear, post-Corbiere, that any legislative initiative needed to be broader than just leadership selection. On this, all agreed. First nations governance broadened that to include financial and operational accountability and legal capacity.

    Equally clearly, however, many were also interested in dealing with other issues. As a result, from the outset of FNG there has been a clear commitment to listen to and record all the issues raised in order to see what could be included in Bill C-7 and what might be better dealt with later or through other means.

    These consultative inputs were documented in all our reports. FNG was not considered to be an either/or exercise, but rather a starting point and a foundation from which progress in other areas could be built.

    The main categories of concern on issues outside of FNG, as raised in the consultations and emphasized by a number of witnesses before this committee, include status, registration, and membership, which were raised by a large number of participants and certainly by aboriginal women.

    This is an issue that in itself is as large or larger than governance, as defined by FNG. As a result, a number of commentators, including Minister Nault, have already referenced that this is the next major legislative challenge we will likely have to address.

    Another major area of concern was matrimonial real property. Here, work has begun in the context of implementing the First Nations Land Management Act. A discussion paper has been released, as referenced before this committee by Wendy Cornet. And people are turning their attention to how this might be dealt with in the near future.

    I understand as well that the minister soon hopes to be able to make an announcement on how we might move forward on this important issue.

    Concern has also obviously been raised on bread-and-butter issues such as housing, water and sewer, infrastructure, economic development, and education. Bill C-7 can make an important contribution in many of these areas in terms of clarifying legal capacities and improving program delivery options for first nations, some of which will be highlighted in my remarks.

    However, to deal with these directly, a national working group on education was established to provide recommendations to the minister. Our department's economic development fund has been increased by $100 million over the last two years. Efforts continue to improve water quality on reserves. And Bill C-19 is before the House, which will enhance first nations economic levers and allow first nations to tap private markets to enhance their infrastructure financing capabilities.

    Finally, a large number of participants asked that first nations governance go even further to deal with other structural issues in the Indian Act impeding economic progress, such as land and resource management and the management of Indian moneys now held in the consolidated revenue fund on behalf of bands.

    The problem in responding to interests in these areas is that it would have put Bill C-7 squarely in the middle of changes in fiduciary obligations, which is one of the things the Assembly of First Nations and others asked that we commit not to do, and which the minister committed from the outset to avoid. But here, too, the commitment to respond has been recognized. We are currently working in the context of first-nations-led exercises in order to develop optional legislation in all of these areas.

    For example, the First Nations Land Management Act, which provides first nations control over reserve land and resource issues other than oil and gas, has been expanded, with the First Nations Land Advisory Board, to allow entry to the 100-odd first nations now interested in participating in that legislation.

    In addition, as the minister has already stated, work has progressed with first nations champions in the areas of oil and gas and money management, to the point that we may be close to legislative proposals here as well.

    To conclude this section on scope, we have done our best to keep to our commitments; to treat all the issues raised during our consultations with respect, a number of which are being actioned, as I indicated; and to design Bill C-7 not as an either/or proposition, but as a major pillar and contributor to the overall strategy guiding these areas, as presented by the minister in his remarks to you earlier.

    To complete our presentation, I would now like to turn to a discussion of what is in Bill C-7 and to some of the questions that appear to have arisen here. But one point of further clarification should be stressed: This is not self-government. Here again, it is not an either/or question. We're in negotiations across the country on implementing the inherent right, and we were asked to respect that. Some who have appeared before you appear to have been suggesting alternative approaches, and further, that the federal government has no business legislating in this area.

    This is not only in direct contradiction to the Supreme Court's direction in Corbiere, referenced earlier, but it also appears that they may be talking more about alternatives to self-government in treaty negotiations occurring at 80 tables across the country in parallel with FNG.

    While FNG is not self-government, as stated in the preamble of Bill C-7, the bill has been designed to provide a substantial improvement over the Indian Act now, which should serve communities in their pursuit of self-government over the longer term.

    There are three points that might be worth clarifying here.

    First, as clause 35 of the bill points out, “For greater certainty, this Act does not apply to” existing self-governing first nations. Second, in clause 34, the Governor in Council may, during the two-year transition period before the default codes apply, “exempt any band from the application of this Act or any of its provisions” for a specified period of time in order “to facilitate the negotiation or ratification of a final agreement on self-government.”

    Finally, paragraph 18(1)(b) provides that bands may delegate any of their powers under this bill or the Indian Act. And subclause 18(2) provides for the joint establishment of institutions by two or more bands.

    This provides, for the first time, a means under current legislation for those first nations that want to begin to implement RCAP, and the challenge that the royal commission put to them for nation-building, as a necessary component of self-government. However, it also provides a means for bands to gain efficiencies in implementing functions under this bill or the Indian Act--for example, to establish redress at the tribal level and to ensure independence or more effective program and service delivery, i.e. by establishing regional or tribal housing authorities.

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    The committee should note that we have pilot projects and/or discussions under way in many of these areas with first nations, which are anxious to make use of these tools both in the short term and on the road to self-government, so that we can put their ideas on the table when we get to the next stage of consultations on the regulatory and implementation issues and ensure that Bill C-7 can be implemented both efficiently and effectively.

    To complete the presentation of what is in Bill C-7, I return to the central premise of the first round of consultations. I quote from our first presentation to this committee on the need to “fundamentally change the relationship between the federal government, first nations, and their citizens under the Indian Act—from one defined by wardship and control...to a contemporary intergovernmental relationship” defined by the exercise of accountable and effective first nations governance.

    Those who participated in the consultations, while they raised a variety of issues, appeared to be clear on this: first nations citizens look to be empowered as individual citizens with the right to be informed, to participate in their community's affairs, and to have access to redress and other means to hold their governments to account. On the basis that FNG can do that, they then want to see those governments have more modern and effective tools and get on with the job through the use of enabling legislation. These three complementary themes of citizen empowerment, more modern tools of government, and enabling legislation explain much of the structure and substantive provisions of Bill C-7 as you have it before you.

    The majority of the provisions of part 1 of Bill C-7 describe the role of first nations citizens in designing and ratifying codes with regard to leadership selection, financial management, and the administration of government, as set out in clause 4. Specific features of the bill's requirements for these codes are found in clauses 5, 6, and 7. These specify the minimum means by which band members must be able to participate and hold their governments to account. These means include providing in subclause 4(2) that all band members on and off reserve have the right to ratify band-designed codes and in subclause 5(1) requiring rules for appealing election results, the removal of elected officials, outlawing corrupt practices, and ensuring that the interests of on- and off-reserve members are respected in elections.

    Subclause 5(2) requires bands selecting leaders under custom to codify these practices in writing, ensure there's an appeal mechanism and procedure for amending the code, and seek the community's ratification to remain under their custom rules. This would help deal with the all-too-common problem that custom procedures are often not written and are themselves subject to dispute within the community.

    The minimum requirements of clause 6 on codes embody the basic operations of government and then go on to call for rules for band governance to give notice of band member and band council meetings, member participation, record keeping, notice of proposed laws and opportunity to comment, separation of political and administrative roles, conflict of interest, and access to information.

    In clause 7 we see basic rules for the preparation of an annual budget and its presentation to band members, control of expenditures, band loans and guarantees, salaries and benefits, and deficit management.

    For band governments who opt not to create their code or codes, a fallback regime will be set out in the regulation, which must contain the same features. It is worth noting here that while a number of bands already incorporate one or a number of these procedures into their operations, it would appear to be far from universal from the comments of many who participated in the FNG consultations. In addition, apart from basic election rules outside of custom, the vast majority of these procedures are not contained in the current Indian Act, meaning that their day-to-day practice is at the discretion of chief and council.

    In addition to these elements of Bill C-7, clauses 11 and 12 of part 1 of the bill require bands to make publicly available their administrative policies and procedures and to create a local impartial redress body to address concerns of members in administrative decisions.

    Finally, to complete this theme of citizen empowerment, clauses 41 and 42 remove the current exemption of the Indian Act from the Canadian Human Rights Act and propose an addition to that act, section 16.1, requiring that the investigation of complaints take into account the needs and aspirations of the aboriginal community, but in a way that respects the need for gender equality. We recognize that a number of witnesses are offering to this committee suggestions on improving that language.

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    This, then, is the review of the principal features of Bill C-7 dealing with empowering and protecting the individual. I would now like to move on to the second part of the story, of how Bill C-7 then works to enable band governments.

    The central feature of Bill C-7 here is the ability for bands to develop their own codes, to avoid a one-size-fits-all approach, although other sections of Bill C-7 are enabling as well, including law-making and delegation authorities. The minimum content of these codes are just that. They do not dictate how a community must implement any of these functions. It does not limit them from using traditional practices, except perhaps in elections, where Bill C-7 calls for a majority of the council to be elected. It only indicates what the minimum core functions are that they must cover.

    Pains have also been taken to ensure maximum flexibility, wherever possible, to allow codes to be developed appropriate to local traditions and practices. For instance, consistent with the Supreme Court in Corbiere, under subclause 5(5), bands may balance different member interests when developing their leadership selection codes.

    Apart from the codes, and staying with the theme of modernizing and enabling band government, part 2 of Bill C-7 goes further to deal with the legal capacity in clause 15, law-making in clauses 16 to 18, and enforcement in clauses 19 to 29.

    The legal capacities described in clause 15 are those of a natural person, and the approach and language is similar to what is found in self-government agreements and other legal descriptions in case law.

    As mentioned earlier, clause 15 also contains subclauses to directly address concerns raised through the Communities First consultations that first nations governance not alter the unique legal status of bands, have the effect of incorporation or municipalization, or affect fiduciary obligations with respect to lands and moneys.

    On the issue of law-making under Bill C-7, the minister will have no disallowance power. Rather, Bill C-7 relies on the accountability of band governments to their members, as described above, as is normal to other governments in Canada.

    The wording of a band council's law-making powers, under the current bylaw-making sections of the Indian Act, have been modernized and made more general and flexible in a number of cases. These powers have also been divided into two clear groupings of authorities: first, those related to local on-reserve matters that you find in clause 16; and those relating to the conduct of band-wide affairs in clause 17.

    Finally, a new law-making section relating to the operations of government, clause 18, has been added to give force to the code in this area.

    In clause 16, local law-making powers have been drafted to be general purpose to ensure that band councils have the authority to make laws to be applied on their reserves that are at least comparable to laws of other local governments in Canada. This more general-purpose language, along with the addition of the ability to issue permits and licences in clause 16 and tickets in clause 21, are important features that are missing from the Indian Act and the cause for the disallowance of the vast majority of otherwise good band bylaws being developed today.

    In addition, first nations will have new authority in clause 16 to enact laws relating to landlord-tenant relationships. This is important as equivalent provincial laws do not currently apply on reserve lands. This and other features will provide important tools not now available to first nations in developing, for example, more effective housing programs.

    In clause 17, the band council would have the authority to make laws for band purposes, which include matters similar to what is now in section 81 of the Indian Act. In addition, a new, more general-purpose authority for the management of community natural resources within the reserve has been included in paragraph 17(1)(a). First nations will also have a new authority to pass laws for the preservation of their culture and language under paragraph 17(1)(c).

    The final aspects of part 2 focus on enabling band governance to address the historical enforcement challenges associated with the current Indian Act, including the absence of a ticketing scheme, the absence of judicial notice requirement, weak fines and penalties relative to other governments operating in similar areas, as well as the ability to appoint a band enforcement officer. This latter area, especially in relation to search and inspection authorities in clauses 23 to 29, has been the subject to some comment and may be an area worthy of the attention of this committee.

    These are the key features of Bill C-7 dealing with empowering individuals on the one hand, and on that basis enabling their governments on the other.

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    To complete this presentation I would note that parts 3 and 4 of the draft bill relate to the operations of Bill C-7, including consequential amendments to other acts, including the Indian Act and the Canadian Human Rights Act as referenced earlier. Many of you will note that many of these relate to regulatory authorities of the minister to pass laws for first nations, which are now subsumed in the more general-purpose law-making sections of Bill C-7 referred to earlier. This is another area where the Minister of Indian and Northern Affairs' oversight has been withdrawn in Bill C-7.

    This then completes our presentation, which I hope has addressed some of the technical and factual questions before the committee. We would obviously be pleased to answer any questions you may have.

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    The Chair: Thank you very much.

    Since some of the members were held up in the House with the beginning of a debate of importance, could I ask you to repeat something from the beginning of your presentation, where you spoke of the effort that will be put in and the time that you think it will take to establish the regulations, and the codes, and stuff like that? I think it's crucial because of all the questions that have been asked in the past.

    Mr. Warren Johnson: Mr. Chairman, that discussion in the presentation started with the note that this exercise in fact commenced four years ago with the Corbiere decision. At that time first nations were concerned that the eighteen months the Supreme Court had given was too short for the legislative reform necessary to the election provisions of the Indian Act, and therefore the federal government undertook a two-stage strategy, starting with regulations, to give that decision effect, to be followed by legislative changes called for by the Supreme Court.

    So at that point we consulted not just on the regulations that needed to be put in place to give the decision effect in the short term but also on how to approach the broader legislative challenge the Supreme Court had put to Parliament.

    After eighteen months of work and analysis from that point, and consultations post-Corbiere, we had effective agreement on the need to look at broader legislative change to the Indian Act than just elections. Subsequent to that, we had six or nine months of informal discussions and workshops, including a number of public engagements and discussions from the minister, which were highlighted in our remarks to you about a year ago.

    We then spent about a year consulting, under Communities First, with many more months analyzing those results while awaiting the recommendations of the joint ministerial advisory committee, and we did all of this before we started looking at the legislative drafting.

    Subsequent to the committee's process, and your recommendations, the minister has publicly committed from the outset that we will enter another round of consultations with first nations to jointly develop the supporting regulations and deal with the implementation and costing issues. Once the regulations were passed, we would then enter the two-year transition period currently called for in the legislation before the regulations, which we need to develop with first nations, would apply to those who were not ready or did not feel the need to adopt their own codes prior to that point. And there's also the point that of course they could always do it any time thereafter, as well.

    The Chair: Thank you very much.

    To set the tone on the questioning period, we do have this bill after first reading. This is a committee that works very well from all parties, all sides. It's not a confrontation exercise that we have here. Everyone is working hard, is sincere, and is wanting to make this legislation better.

    We will be travelling together, and we'll have the pleasure of having some legal counsel with us, and people to assist. So in the spirit of proposing amendments that would make this bill better, and doing it all together, I would hope that the questions are to clear up the issues that we've been led to believe are there, and to start our discussion in the spirit of starting to initiate our amendments. And I've indicated to the minister, and to others, that I hope at the end of the nine weeks we don't spend two or three days together doing clause-by-clause shooting down every amendment from opposition and voting for every amendment from the government side.

    If we are to work together the way that we plan to do, I would like to see all amendments have the full attention of everyone participating. After first reading, I think that's the way to build legislation.

    So we'll start with a seven-minute round from Mr. Vellacott.

    Mr. Maurice Vellacott (Saskatoon—Wanuskewin, Canadian Alliance): Thank you, Mr. Chair.

    Thank you, gentlemen, and Brenda, for being here today.

    I'll move through my questions, but not necessarily in the order of priority.

    Under custom bands, they may adopt a kind of non-democratic, you might say, hierarchical system. Is there openness? I'd just put it on the record here that maybe it's something that can be looked at, because it's something that we, as the Canadian Alliance Party, would insist on, or urge, that there be some kind of provision for a periodic review of custom selections to ensure that the will of the people is respected.

    In other words, do they get a chance every once in a while to look at that again? Is it something that's already there that I'm not noticing? I guess I want a response of some sort, quickly, to that, although you can't, obviously, commit. Maybe I'm not totally understanding this, but as I understand it, a custom band may adopt a non-democratic--at least from my point of view--hierarchical system. Is there a possibility of a provision being inserted, or amendments, so that there is periodic review of custom selections to ensure the will of the people is respected?

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    Mr. Warren Johnson: The section dealing with custom does suggest that bands should include a process for amendment in the written custom rules that they're asked to put forward under this for community ratification, but it is not so formal as to call for a regular review of the type you are talking about.

    Mr. Maurice Vellacott: I think what I'm trying to say--

    Mr. Warren Johnson: They are being asked to include an amendment process in that so it would provide that opportunity.

    Mr. Maurice Vellacott: Right. Maybe what I'm asking for is a little stronger than that. Maybe there's a possibility of putting it in a little stronger language than to say “may”, or of putting in some kind of amendment process that maybe would give people regular, periodic, frequent reviews of that.

    The other question I have--and you did raise the issue and I appreciate the spirit of it there--is that there has been comment around the seeming broad search and seizure powers. Of course, this is always compared to other jurisdictions in our country.

    I don't want to draw you out as to exactly what your thinking would be, and I know you wanted to keep it open-ended, but at this juncture would there be an admission that you're hearing enough noise on that one that there is a concern about this issue of the broad enforcement powers?

    Mr. Warren Johnson: No, I think, clearly, there are concerns being raised and, as I mentioned in my remarks, this is clearly one area that might benefit from the committee's perspectives.

    Just as a matter of clarification, once the bill was tabled before the committee we had the summer recess and that did give us the opportunity to hold information sessions right across the country with first nations to encourage people to look at it, and come to their own opinions, and to appear before the committee should they have those views. In those discussions, this was one area that did come up very frequently. It is clear that there are questions there.

    Mr. Maurice Vellacott: Moving to another question, most mature, progressive democracies seem to have something in their codes and laws and so on in terms of access to information and privacy laws. Within this bill it talks about those that “may” be developed. What if they are not? How are band members protected?

    It would seem to me that we can talk about culture, and tradition, and so on, but a lot of native people are asking for access to information and certain kinds of laws that in modern, maturing democracies are there. What do we do if they may be developed but they're not? How do we protect grassroots, ordinary aboriginal band people then?

    Mr. Warren Johnson: That situation would leave us effectively in the current situation, because there are no access to information provisions or requirements in the current Indian Act, or any other act in force--so it's according to band practice.

    I don't know whether my colleague would have a comment.

    Mr. Andrew Beynon (General Counsel, Department of Indian Affairs and Northern Development): Perhaps I could add just one point.

    In subclause 6(4) of the bill there is a provision that specifies that “An administration of government code must include rules”, and paragraph 6(4)(c) deals with access to information. There is a requirement that at least in terms of the codes that govern the conduct of the band governments, there have to be rules with respect to access to information.

    The discretion in terms of passing laws with respect to access to information is if a band council wants to add something more to what the code that the community has voted on provides.

    Mr. Maurice Vellacott: So with that, then, you feel that we're secure enough, or is there any possible tinkering that might be required to make full protections for ordinary band members?

    Mr. Andrew Beynon: I think that's for you as committee members to decide. What I'm just noting for you is technically the way it works is that there is a requirement by the terms of the legislation that administration of government codes have to consider the access to information issue. So it will be up to the membership to give some consideration as to whether they're satisfied with what the band council has proposed be the rules in the terms of the code.

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    Mr. Maurice Vellacott: So they have to consider, but it's not saying they have to do anything in respect to it. But I understand what you're saying; they have to look at it.

    Mr. Andrew Beynon: As the provision is drafted now, it's saying it must include rules respecting access to information under the control of the band, protection of personal information under its control, and access by individuals to information about themselves.

    Mr. Maurice Vellacott: But couldn't the rule simply state that there are no rules, that there is nothing particular in respect applied?

    Mr. Andrew Beynon: I'm not sure I could give advice as to whether saying there's nothing would satisfy the terms of this. I suppose if I were advising a band council I would, as I think most lawyers advising them would, suggest that something more than nothing is required here. But I will admit, and the point I think you're making, that the Privacy Commissioner, when he appeared before the committee, was saying that there is an indication that there must be something done with respect to access to information, but it doesn't spell out a series of details, and that's something you may want to examine.

    Mr. Maurice Vellacott: Thank you, Andrew.

    Do I have any more time?

    The Chair: At best fifteen seconds, so we'll move on.

    Mr. Maurice Vellacott: I'll come back to this later. I'll just give you the heads up that I want to understand a little better the default code process, and how we're going to get at reassuring people there in respect to that.

    Thank you.

    The Chair: There will be other rounds.

    Mr. Loubier, five minutes.

[Translation]

    Mr. Yvan Loubier (Saint-Hyacinthe—Bagot, BQ): Thank you, Mr. Chairman.

    Mr. Johnson, I would like to know your reasoning when you talk about the bill and the options that are given to the first nations. You mentioned the Corbiere ruling and other Supreme Court rulings, and at the same time, you say you have given powers to the aboriginal governments, that you will give them other powers, etc. You really are not giving them anything if you are consistent with the spirit and letter of the three last Supreme Court rulings, which just say that the inherent right to self-government is recognized, that this right must not be abrogated by any bill or treaty, that the signed treaties and the traditional verbal treaties must both be upheld. But you are not giving them anything.

    The next step, pursuant to these Supreme Court rulings, is to negotiate on an equal footing with the first nations to agree on a definition of inherent right to self-government and on how to translate the treaties that describe their rights and were signed by the federal government.

    So I would like to know on what basis you are saying that you are giving them something, when you really are not. They have those rights, and we must define them together.

    The second thing that troubles me is when you say they will have legislative powers, but when you look at the powers enshrined in this bill, they are not much greater than those of a municipality. So they are either nations or they are administrative entities like municipalities.

[English]

    Mr. Warren Johnson: There's a number of questions there, I think. Let me attempt to address them in turn.

    In terms of the first set of issues you put forward, there is no pretence here that this is anything about giving rights. The rights exist and are protected in the Constitution. I understand the kinds of negotiations, in terms of the implementation of those rights that you were talking about, to be the government's inherent right policy. There are negotiations going on at, I think, 80 tables now across the country in terms of negotiating the implementation of the inherent right.

    The question we have--and it may be worthy of further discussion--is that there is a distinction between that and the situation for those first nations that are not yet under self-government and are therefore under the Indian Act. So if they're not operating under self-government, they're operating under the Indian Act.

    In the rulings that I think you were referencing, the Supreme Court has said that there are rights in the Constitution relating to protection of aboriginal treaty rights and the federal government has said that it recognizes inherent right as one of those and is willing to sit down and negotiate how that can be effectively implemented with first nations.

    On the other hand, the Supreme Court has also said that while you're operating under the Indian Act, there are...we've just struck the definition of “elector” under the Indian Act, and our ruling has much broader implications than just that and Parliament needs to do something about it.

    In simple terms--I don't have a count--there are a number of court cases winding through the system right now challenging other sections of the Indian Act on the same grounds. If nothing is done by Parliament with the existing Indian Act, which is still in force until first nations negotiate self-government agreements, then the Supreme Court will continue to make these changes as long as there is anybody operating effectively under that act.

    So coming at it from a totally pragmatic basis, we need a functional set of legislation for the operations of first nations today while they're working their way toward and until they're under self-government. Those two things coexist at this moment in time until all first nations are under self-government. I think that is an attempt to--

º  (1625)  

[Translation]

    Mr. Yvan Loubier: I had another one. You spoke of legislative powers for first nations, but I do not see them as having any more powers than a municipality. But we are talking about an agreement on self-government; we are talking about nations and their right to govern themselves. Is that your idea of self-government for aboriginal people?

    I would like to ask you a second question. There is often mention of default codes, but no one has ever shown them to us or tabled them. Would it be possible for us to see them and review them? I think the aboriginal nations would like to know what lies ahead of them if, in two years' time, they have not defined their own codes. I would like to see them. I do not know whether my colleagues would like to see them as well, but I am curious by nature.

    The Chair: Thank you.

    The answer might have to be given in the next round, because your time is up.

[English]

    Mr. Martin, five minutes.

    Mr. Pat Martin (Winnipeg Centre, NDP): Thank you, Mr. Chair. Thank you, guests.

    I don't envy you your job. I think you have one of the toughest jobs in the country as senior bureaucrats. You've been charged with the task of developing and implementing something nobody wants, as far as I can see.

    I'm going to deal with some of the substance of that in a moment, but first I want to point out for the record that I disagree strongly with some of the language in your presentation regarding consultation. You say that phase 1, now complete, involved the most extensive set of consultations ever undertaken with first nations. You go on to say that 10,000 individuals expressed their views.

    In our view, from what we hear, the whole consultation process was a sham. It was an absolute failure. The 10,000 number that's being touted includes people who came to these town hall meetings to talk about housing, education, water, or health care, and they had nothing to say about the proposals, which they knew nothing about. So I can't see how you can say they were consulted with.

    What I really find fault with is your statement that it was the most extensive set of consultations. The Royal Commission on Aboriginal Peoples went through a phase 1 in 1991 to do the pre-work. Then they went through, in 1992 and 1993, 110 communities over 178 days of hearings, hearing directly from 2,067 witnesses who gave representation at the committee with an informed base, with some background. They didn't put a poster up in a community saying, “Tonight there'll be a town hall meeting about amending the Indian Act, come on down.” You have to look at the legal definition of what is broad consultation--over a thousand written submissions, five years, $50 million budget.

    So I can't sit here and let you put on the record that this was the most extensive consultation undertaken with first nations. I don't accept it.

    I'd like to ask a technical question of the people delivering technical information. We have information that the estimate is about $110 million or $120 million for the implementation of this--I didn't bring my file. First of all, will that come out of the A base of INAC?

    Second, we've been hearing that this is grossly inadequate to actually impose something that nobody wants on 633 first nations who may put up active resistance. The estimate we have heard is a billion plus, that this is Canada's next gun registry we're dealing with here. It's absolutely unrealistic to even think you're going to impose this on communities that don't want it for $120 million.

    Before my time runs out, I'd ask you to comment on that. In your opinion, is the amount of money adequate? Does it come out of the A base? And why isn't there a non-derogation clause in there?

º  (1630)  

    Mr. Warren Johnson: I'll attempt to deal with the first two questions, and leave the last to my colleague.

    I don't think at this point we would be trying to defend the initial estimate of $110 million. This was the first round of estimates that was done once we had a draft of the legislation.

    Looking at the incremental functions that first nations would be required to undertake with respect to this bill, we have committed to consult with first nations on that in the next stage of the consultations and go through it in more detail once we know the results of the final form of the legislation as it emerges from Parliament.

    So that $110 million was the initial estimate, and it was, if nothing else, to secure a good estimate of how much we would have to be funding this from our A base, because that is where it would be coming from.

    I think that answers the first two questions.

    The question on non-derogation I'll pass to my colleague, Mr. Beynon.

    Mr. Andrew Beynon: With respect to non-derogation, I'm advised that a number of ministers are undertaking a study to consider how to approach non-derogation generally. It does not appear in this bill as a non-derogation clause, as I understand, because the consideration of how to approach the issue generally is still under way.

    The Chair: Mr. Reed, you have five minutes--

    Mr. Warren Johnson: Sorry, could I add one point to the answer on the first part?

    This is one of the reasons that we're anxious to work with first nations on the pilot projects in a variety of areas relating to the potential implementation of Bill C-7 that I referenced in my opening remarks. We need the pilot projects to refine the estimates, and to look at the time and effort that it's taking for some of the first nations that are already looking at how they might approach some of these aspects.

    We have a variety of sources of information that we'll need to pull together, and then get out and consult on, once we have the recommendation of this committee in terms of what the final features of the bill would look like.

    The Chair: Thank you.

    Mr. Reed.

    Mr. Julian Reed (Halton, Lib.): Thank you.

    As a new member of this committee, I appreciate the fact that you're here today and able to make this presentation.

    My questions are perhaps simplistic, but will there be a phase two or a phase three in consultations? Were there very many people involved in the architecture of this bill, such as Chief Jules, who testified before this committee?

    There still seems to be a lot of polarity, even after all the consultations, from what we're hearing. You're either “for it or agin it”. We haven't had very many people who have said that although it's not perfect, it's a stepping stone or could be a stepping stone

    When Chief Jules was here testifying, he obviously had a very active part in the construction of this bill. How many Indians were actually involved directly?

    Mr. Warren Johnson: On those two questions, Mr. Chairman, I think the way in which communications have consistently portrayed the commitment to this process is that phase two of the consultations referred to is in fact what we're engaged in now. That's why the bill was referred to committee before second reading, to allow for a more substantive discussion on the actual wording of the bill to take place.

    In the first stage, we had general discussions with first nations that focused on individuals. A lot of people, quite frankly, like most people, whatever jurisdiction they're in, aren't familiar with all of the acts and regulations that govern the processes that surround them. A lot of people aren't familiar with what's in the Indian Act now.

    We didn't get detailed legislative wording or, if you will, detailed legislative recommendations from them. We did get conceptual results, which we referenced, I think, in my remarks, in terms of the kinds of areas in which people, as citizens, wanted to be empowered, in terms of participating in the government and the kinds of authorities that they would be looking for governments to have as a result.

    They were documented and made public in the consultation results that we, I think, tabled with this committee in February when we made our first presentation. That's when they became available.

    The one point I would make, that was made earlier, is that a lot of other issues were raised. They were documented too. I hope those were fairly balanced reports that were made public. We have had no comment from any source that those aren't accurate as to what the results were.

    In terms of who was involved, I can't speak for Chief Jules. Ms. Kustra could probably comment in more detail.

    The joint ministerial advisory committee--I think both co-chairs were before you earlier as witnesses--represented a variety of different people, either at the organizational level or regionally, or coalitions, if you will, of first nations participating. And there was a fairly active participation from B.C.

    I personally don't know what Chief Jules did through that representation, or not, but--

º  (1635)  

    The Chair: I can clear that up. Chief Jules said he was very involved in Bill C-19 but was not involved in Bill C-7.

    Mr. Warren Johnson: I'd ask Ms. Kustra to continue that part of it.

    Ms. Brenda Kustra (Executive Advisor, Department of Indian Affairs and Northern Development): Maybe I could provide a little bit of clarity.

    The joint ministerial advisory committee was struck by Minister Nault to provide some advice on the structure and content of Bill C-7. At the time the committee was being structured, the minister invited the national aboriginal organizations to identify representatives who could sit on the committee. As Mr. Johnson has said, Mr. Aldridge and Mr. Bird co-chaired the committee. Members of the committee did include the Congress of Aboriginal Peoples, the National Aboriginal Women's Association, the Department of Justice, and some first nations individuals with much experience in governance.

    As well, there was an invitation to the Assembly of First Nations to participate in the group that was brought together to not only consider the advice and the thinking that came out of the community consultation process but also to build upon it and provide specific advice to the minister on the structure of the bill.

    That's a little bit of additional information in terms of the involvement of some of the organizations.

    Mr. Julian Reed: That was very valuable. Thank you.

    Thank you, Mr. Chairman.

    The Chair: Thank you.

    Mr. Vellacott, we'll do another five-minute round.

    Mr. Maurice Vellacott: Thank you, all three of you.

    I have a question, as I mentioned, with respect to the default codes and trying to understand the process. I understand there is supposed to be a consultation process that takes place. First, I want to understand if I'm correct in that--just very briefly, not to use up a lot of time on that--and then I have some suggestions that I would make from there. But is it correct that there is perceived to be some kind of a process down the road on that?

    Mr. Warren Johnson: Yes, I guess this could be characterized as more than a perception. It has been a commitment from the minister from day one. That is in fact the third phase of the process, in terms of the previous question.

    To clarify a couple of points, some of which were in the opening remarks, the default codes will be established in regulation and must meet exactly the same conditions as codes that bands would develop. In other words, the sections--and we were referring to them earlier--of the minimum contents of the code must be in the regulations as well. So both the regulations or default and the band-designed codes, if bands wish to, whenever they wish to design their own codes, must meet those minimum conditions.

    Once we have a final version of the act and the recommendations from this committee, then we have committed to go out and design them jointly with first nations.

    Mr. Maurice Vellacott: Okay.

    Let me sketch a scenario that has been alluded to by others here. If in fact, for a variety of reasons, but maybe just basically because they don't agree with Bill C-7, individuals are not going out to these “consultations” that occur in the future--and it is a possibility, or conceivably might occur--would there be some merit to having a process where, if people boycott for whatever reasons but then they're going to be living under this, which is kind of imposed, the regime they live under thereafter, those “default codes regulations” would come back before this particular committee at least? Then maybe some will be jumping in and saying, we had better get on the train and try to mitigate if we can. Would there be some merit in having those come back to this particular committee?

    I guess I'm making that as a suggestion, to see how you would respond to that, so that it's not like a blank cheque and then there's some boycotting that goes on out there. I'm asking if there would then be a second shot at it by way of at least this committee being the mouthpiece, if you will, for people that finally, late along, decide they just really need to be involved in some way to mitigate, because they're living under those default codes.

    Do you understand my question?

º  (1640)  

    Mr. Warren Johnson: I understand the question, but there's a little bit of difficulty in answering, because there's a bit of a machinery issue here.

    My understanding is that normally there's a legislative process, and requirements and regulations are common following the legislation. The relevant ministries then consult and develop the regulations and change them from time to time.

    They themselves are a two-stage process, because once developed, they are gazetted and subject to scrutiny.

    Mr. Maurice Vellacott: I understand, but I'm not sure there's anything that prevents or forbids from that being scrutinized by a parliamentary committee and going along that process.

    I don't know, unless there's some technical reason why you couldn't; there may be. But I'm suggesting a slightly different approach here, and I think it's certainly in keeping with the role of this committee to get a look at that and to approve those regulations.

    The Chair: Mr. Vellacott, to clarify, there is a precedent. The immigration committee just undertook that work for the immigration--

    Mr. Maurice Vellacott: There you go. Great.

    In view of that, maybe it's not done all the time, but as the chair rightly reminds us, it can be done, it would appear.

    So that's my suggestion, to reassure, to give a second shot at it, that type of thing.

    The Chair: Okay.

    Monsieur Binet, five minutes.

[Translation]

    Mr. Gérard Binet (Frontenac—Mégantic, Lib.): Thank you, Mr. Chairman.

    Good afternoon, everyone. I come from the business sector and what I found most difficult when I started out was dealing with the number of forms to fill out. At first, to avoid incurring costs, you fill them out yourself, but after spending several hours doing paperwork, you decide to hire someone competent.

    In our regions, we are lucky to have offices that just work temporarily for several companies, and we call on them to do our paperwork. But some of the 600 communities are quite small. In her December 2002 report, the Auditor General indicated how much of a burden that was for first nations communities. When she appeared before the committee on January 28, she added that Bill C-7 increased the number of reports band councils had to provide to their members, but did not change the number of reports that have to be made on financing agreements. A number of provisions dealing with financing agreements were included in the bill and will therefore have force of law.

    I will ask you my two questions right away. Does this have an effect on Bill C-7? I would also like to know your reaction to the Auditor General's statement.

    Thank you.

[English]

    Mr. Warren Johnson: I guess the way this has been viewed is maybe the reverse of the way you've asked the question. That is, the reporting requirements the Auditor General was referencing come from the variety of program arrangements and funding agreements first nations have with a variety of federal, provincial, and territorial government departments. That's where those reporting requirements come from.

    An observation has been made--and it's one of the issues we need to have a serious discussion with first nations about in the next stage--that clarifying a number of the issues on financial practices, budgeting processes, and the rest in relation to first nations reporting to their own community may relieve those who have financial arrangements with first nations of responsibility for putting duplicative requirements in their financial agreements with first nations. They would already be covered and be publicly available in audit reports, etc.

    So there is potential for simplifying those arrangements. I think the Auditor General has commented on the fact that people are duplicating similar requirements from the first nations for these things. But part of the problem is that those requirements aren't met internally in the operations of the first nation itself now. They may be in some first nations where they do it voluntarily, but I think there is only one line anywhere in the Indian Act that talks anything about financing.

    The establishment of financial codes and information, and the availability of information, annual statements, expenditure statements and the rest here may relieve a significant burden already and allow people to simplify those arrangements. Clearly there's strong interest. There have been and continue to be fiscal discussions with the AFN and others at fiscal tables on how that can be reformed.

    Presumably that will ultimately point to how these things can be consolidated so there isn't duplicate reporting in more of a fiscal arrangement than a program transfer arrangement. While Bill C-7 may not be able to directly affect that because these are in the financial arrangements and not the legal requirements, we hope it can simplify the agreements that are being drafted as we speak from a variety of sources, and lead to a longer-term discussion on more efficient fiscal transfer arrangements.

    I hope that answers your question.

º  (1645)  

[Translation]

    Mr. Gérard Binet: Is that enough to satisfy Canada's Auditor General?

[English]

    Mr. Warren Johnson: That would satisfy the Auditor General, who has made some healthy comments in that regard, but any of us who have had significant dealings with individual first nations share their sense of frustration at the amount of work and paper they are faced with. Quite frankly, a number of first nation leaders quite eloquently, in consultation sessions I was part of, said that if they don't see long-term progress on that coming out of this, with Bill C-7 as a foundation, we will have missed a major opportunity.

    The Chair: Monsieur Loubier, seven minutes.

[Translation]

    Mr. Yvan Loubier: Thank you, Mr. Chairman.

    Mr. Johnson, I am still surprised at the answers you gave me earlier and at those you gave to my colleague from the Alliance with regard to the default codes. Since that is a key part of Bill C-7, we would have expected to know what would apply by default while we are studying Bill C-7 and while we inform the public of the time constraints for the aboriginal nations to set up these codes. I am sure you had already come up with various scenarios for default codes. Now you are telling us that that is not the case.

    Secondly, I asked you the following question earlier: what powers besides the planned municipal powers will be given to aboriginal nations? Just like the Canadian or Quebec nation, aboriginals expect more where powers defined by the Supreme Court are concerned, because they have that power, the inherent right to self-government and to everything that stems from the treaties.

    Let me ask you one last question on that: why did you not speed up the negotiations with the First Nations, who do not yet have an agreement on self-government, rather than tabling Bill C-7? Why were the resources not used to hold nation-to-nation discussions in order to define self-government, the powers that first nations already have and those that they would like to have while at the same time respecting their usual rights? I think that would have been much simpler.

[English]

    Mr. Warren Johnson: On the last point first, I guess it comes back to the comments we made in the introduction. This has not been seen by our minister or anyone in the department as an either/or exercise. The issue of improving the negotiations process to get more efficient results on the inherent right is a topic that's being worked on in parallel, from a federal perspective and from groups like the treaty negotiation office in B.C. where there's a variety of recommendations on moving that way. So that is going ahead independently of this exercise on Bill C-7. I think our minister has been quite consistent in referencing the federal government's priority and commitment to that.

º  (1650)  

[Translation]

    Mr. Yvan Loubier: Just a moment, Mr. Johnson. What is the rationale behind imposing a bill like C-7 and draining the special resources to meet the requirements of Bill C-7, when the aboriginal nations do not even want it? What is the rationale behind imposing an agreement like this one rather than using all those resources, time, money and energy to further the negotiations on self-government agreements? Could you explain the rationale to me?

[English]

    Mr. Warren Johnson: Well, you could approach that from a variety of sources or from a variety of perspectives; if we don't do this, then the Supreme Court is going to do it itself. So this is in response to the Supreme Court, and to maintain some kind of stable, interim, pragmatic situation for first nations while the work is going on.

    Secondly, much of what is here is far short of, and makes no pretence of being, self-government, as I referenced earlier. I think that is the answer to your second question already. But much of this is work that first nations will have to do anyway in the process to self-government in developing internal constitutions, codes, and procedures.

    To deal with the other question you asked, yes, the law-making in Bill C-7 falls far short of what first nations expect and what we're negotiating in the inherent right and self-government negotiations. That's because this is not the inherent right and self-government negotiations.

    While there is a variety of features I could point to, given the time--and I'll take the chair's discretion on this--of where this goes beyond the municipal authority, it's well short of authorities that are being negotiated in self-government agreements or that exist, for example, in the Nisga'a agreement. But that's because there's no pretence of trying to do that here. If we tried to do that we'd have a lot of opposition, because as the bill states, its purpose and intent are not to prejudge the outcome of those negotiations.

    The Chair: Ms. Karetak-Lindell.

    Ms. Nancy Karetak-Lindell (Nunavut, Lib.): Thank you, Mr. Chair.

    I think we've heard repeatedly from witnesses that they're very worried about the lack of a non-derogation clause in this, and if you could, please comment on that. The timeframe has been another area we have heard about from many witnesses, that they felt that it was too short.

    Going back to one of the presentations from women, NAWA, they were quite uncomfortable with the enforcement powers. They felt that those powers were more than law enforcement authorities have today. The other one we heard many times was they felt that they were not assured of resources to implement many of the new practices that would come about under this legislation.

    Mr. Warren Johnson: I'll take four questions, and I'll turn the non-derogation question over to Mr. Beynon.

    With respect to the enforcement issue, as we referenced earlier, I think, this is an issue that has come up in a variety of areas. There have been a number of expert witnesses before this committee who have said that in attempting to package a variety of functions that are specialized functions of other government agencies in different types of enforcement, inspection, search, and seizure functions into one officer, if you will, of a band of enforcement officers, as referenced here, the bill may have gone too far and may in fact raise some significant charter challenge-type questions.

    This is an important area, as we were saying earlier, for the committee to look at. Obviously, there are a couple of things that need to be looked at in that regard. For example, should they be more prescribed to get rid of those dangers? Should there be a separation? There are really two functions here. One is the normal inspection function of first nations laws in this area dealing with zoning or whatever else you would be dealing with in terms of local issues.

    Then there's an inspection function, which is quite a bit different from a gathering of evidence in case law, where you may be talking about the issue of warrants, whether police should be involved, etc. Maybe, in trying to combine all these, the drafters of Bill C-7 have gone too far in terms of providing that and not making enough of those distinctions. That, I think, is why this is an area that's important to be looked at.

    In terms of the timeframe, they appreciate the concerns people have, but as I referenced in the earlier remark, by the time we get through it all, this will have taken seven years. The difficulty is, I don't know how patient the courts are going to be. Quite frankly we are, because the federal government has to appear when the legislation is challenged, pointing to activities to modernize legislation such as Bill C-7 and other activities that are going on, and Parliament's consideration of those, as defences in current cases. How much patience the courts will have and how long the processes can take are significant questions.

    We're roughly halfway through this process now. We've been on it something like four years now and have another three years to go. There are still opportunities for those who perhaps had other priorities earlier and weren't interested in negotiating to participate at any stage. There's been an open invitation. There have been at least six or seven letters from the minister to every chief and council across the country at each stage, saying, “Here's where we are now, and are you interested?”, with who to contact and all the rest.

    We will continue that effort throughout. I have outlined the stages we're going to have to go through even on the current course, with at least three years of work left to go.

    On the resource side, the commitment has been there from the beginning. As proof of that, the minister began a 5% annual increase in band support funding some two years ago now, band support funding being the program with Indian and Northern Affairs that provides the core governance funding now to the first nations, which runs annually at about $300 million or something like that. That's why the minister, despite the fact that these were early estimates and needed to be refined with first nations in the next round of consultations, referred to the $110 million publicly to let people know we were treating it seriously.

    We had some initial estimates for a significant amount of money. We are going to have to sit down and talk to them about it...until we get to that next stage and actually sit down, do that work, look at some of the pilot work that's going on, and have a serious discussion with those who we should be talking to on it.

º  (1655)  

    The Chair: We will ask you to come back after to talk about non-derogation.

    Mr. Martin, you have five minutes.

    Mr. Pat Martin: Thank you, Mr. Chair.

    Mr. Johnson, I noticed that twice in your report you say the Indian Act is rooted in outdated colonial principles. Well, the people I talk to believe that the whole process surrounding Bill C-7 is rooted in outdated colonial principles and is the imposition of something people don't want. In fact, today I met with the representatives from the Samson Cree First Nation from Hobbema, and one thing they said was that Indian agent mentality rings throughout everything about Bill C-7, and they said it smacks of the 1969 white paper.

    Here we have the most comprehensive overhaul of the Indian Act--which we all agree is a fundamentally evil document, one that should be abolished eventually, and I know that's the plan--in 50 years or more. It's the most comprehensive overhaul of the Indian Act, and the fear as expressed to me is that they're missing it. They're missing all the key, important things that need to be dealt with. They're dealing with administrative tinkering, and they're doing it in such a way that they've offended just about everyone. They've set back relations between first nations and the federal government by 50 years by driving this thing through.

    My first question to you is, whose idea was this? I know it wasn't senior bureaucrats' idea because that's the information we get, that they weren't thrilled with the idea of embarking on this when there are so many other priorities. I know it didn't come from the legitimate elected leadership of aboriginal people of this country because they're boycotting the process. All you can do is create new associations of aboriginal people to participate, such as NAWA.

    So why are we going to be wasting possibly billions of dollars trying to impose something nobody wants onto 633 first nations? What is the impetus? In your opinion, who is asking you to do this?

»  (1700)  

    Mr. Warren Johnson: The simple answer to the question is the Supreme Court, the Government of Canada, and all the people who have participated in the consultations to date.

    Mr. Pat Martin: All the people who participated in the consultations were enthusiastically supporting the technical details of Bill C-7? My information is that a lot of them came there to talk about fresh water, plumbing, health care, and education, not about the way they do their bookkeeping and accounting or elect their chief and council.

    Ms. Brenda Kustra: I think there's an important clarification we need to make here. When we went out to consult with first nations across the country to look for ideas to shape Bill C-7, Bill C-7 did not exist. We did not have a piece of legislation we went out to consult on. We went out to talk to people about what kinds of modern tools of governance they needed in their communities, what kind of accountability systems they wanted to have in place, and what some of the challenges around leadership selection and the administration of their government were. What we heard formed the basis of the work that led up to Bill C-7.

    Mr. Pat Martin: So you stopped somebody on the street, put a microphone to their mouth, and said, what's wrong with the Indian Act? That's about as much preparation as people had, because there was no funding for them to prepare presentations. You got $5,000 for having INAC come and push it in your community, but you got zero dollars to prepare some kind of a submission to make even though these are incredibly technical changes we're making to the Indian Act.

    I don't get it.

    The Chair: Mr. Martin, I'm very easy about allowing issues to develop, but we have a bill before us. We could spend the next seven weeks we have left criticizing the process and coming back to that all the time, but I have a bill to deal with. I will allow what you have said, but I would hope that we'll get back to the bill. That's why we've invited the department.

    Mr. Pat Martin: So what's your point? What do you want me to do differently?

    The Chair: I'd like you to talk about Bill C-7 once in a while.

    Mr. Pat Martin: I am talking about Bill C-7. This is the most fundamental aspect of Bill C-7, that nobody in the country I can find or who comes to my office seems to want it except for the--

    The Chair: The House has sent it to us anyway, so I have a job to do.

    Mr. Pat Martin: Okay.

    You were going to speak more about the non-derogation clause. Is it not reasonable for the people who are opposed to Bill C-7 to suspect that their inherent rights may be diminished or derogated by this bill if there's no clause to the contrary to be found anywhere in the bill?

    Mr. Andrew Beynon: Maybe I can speak to both of the questions. First of all, I would acknowledge what Ms. Karetak-Lindell has said, that a number of witnesses have suggested they have concerns about a non-derogation clause.

    I can only go back to what I said at the outset. The government is considering, as I understand it, what should be the overall approach to the issue of non-derogation.

    I can give some technical suggestions in terms of how this bill would operate in the absence of a non-derogation clause; in other words, the way it is now. It would likely be interpreted in the same way as are many other federal acts that do not have a non-derogation clause. I think it's important--

    Mr. Pat Martin: Do you mean federal acts dealing with the Indian Act?

    Mr. Andrew Beynon: No. I'm referring generally to federal legislation that does not contain non-derogation clauses.

    The Constitution itself sets out a protection of aboriginal and treaty rights. Section 35 of the Constitution Act 1982 does that.

»  (1705)  

    Mr. Pat Martin: So is non-derogation deemed to be a part of every piece of legislation by virtue of section 35?

    Mr. Andrew Beynon: Being part of the Constitution, section 35 is part of the supreme law of Canada, and therefore it operates to interpret all federal legislation. All federal legislation is subject to section 35 of the Constitution Act 1982. That means that all aboriginal and treaty rights “are hereby recognized and affirmed”, part of the language of section 35.

    When the courts come to examine federal legislation, if a first nation comes forward and says, we have an aboriginal and treaty right that we think allows us to do something different from what the federal legislation says, the first question the courts have to examine is whether or not that's in fact the case. First, is there an aboriginal and treaty right? On that issue the onus of proof is with the first nation.

    The second issue that arises is, does the legislation provide for something different from what the exercise of the aboriginal and treaty right would allow? On that front, if the court decides that the terms of the legislation would infringe upon an aboriginal or treaty right, then the next step is that the government faces the onus of identifying the compelling and substantial legislative objective underlying that particular provision.

    The third step is that the justification for that infringement is also a matter of proof for the government.

    Now, among lawyers there are some--

    Mr. Pat Martin: A non-derogation clause is often for further clarity. In the case of ambiguity or a disagreement or impasse, you can refer to, “For further clarity, nothing in this document shall be construed to derogate or diminish from...blah, blah, blah”, right?

    The Chair: That debate will continue either later on today or at another time. We've used up eight minutes.

    We'll go to Ms. Neville for five minutes.

    Ms. Anita Neville (Winnipeg South Centre, Lib.): Thank you, Mr. Chairman.

    I hope you will give me a little leeway and permission to respond to my colleague from Manitoba who said that nobody likes this bill. I speak to many members of the community, and there are many indeed who do like this bill. Unfortunately, because of the political climate surrounding this bill in a number of different venues, there are concerns about speaking up publicly about those aspects of the bill that they like. It's unfortunate that so much of this is clouded in politics.

    My original question was to ask you to expand on paragraph 18(b) and subclause 18(2).

    But I'm interested in a comment that I think you made, Mr. Johnson, in response to somebody else that this bill goes beyond the municipal authority in many instances. I would be interested in knowing where that is.

    Mr. Warren Johnson: On the first part, the law-making powers are in three sections in FNG. Clause 16 would be the one that would be arguably closest to municipal types of authority, the local law-making powers. For example, residential tenancies are in there, including powers of eviction. It's a provincial authority, not a municipal authority.

    Other aspects of that may in fact go beyond a municipal authority. If you look at clause 17, there are no municipal equivalents to clause 17. Those are all unique. These are based on aboriginal questions relating to the band, the title here being “laws for band purposes”. They are unique. There is no equivalent for those, or many of those, in the provincial jurisdiction.

    As an example, the first couple deal with resource issues. On reserve, both the land and resources are communal resources. These are the authorities for which there is no equivalent, except I guess in a provincial management of Crown lands or of federal Crown land in the north.

    These relate to the law-making authorities that first nations need for the management of their communal resources and how the community would be making use of them. Paragraph 17(1)(c) is an example, “the preservation of culture and language of the band”. Culture and language are not under municipal authority. You can go through, I think, all of clause 17 to see that.

    For clause 18, I don't know what it would be considered. Those are government operation authorities that are common to almost any level of government in terms of delegating ability or other law-making. We're in a unique situation with respect to band governments on reserve, with respect to aboriginal rights and inherent right, on the one hand, and the communal nature of the land base, the resources, and the community.

    In fact, you find a mix of a variety of law-making authorities from different jurisdictions, albeit not to the degree that first nations are going to, in terms of the inherent right negotiations in the jurisdictions that obviously will be broader than this.

»  (1710)  

    Ms. Anita Neville: Subclause 18(2) talks about the ability of two or more bands to join together “for the purposes of paragraph 1(b)”. In your consultations with the first nations community, was this a major concern? Can you speak to the prevalence of the desire to do that, I guess?

    Ms. Brenda Kustra: In the consultations, many of the people who spoke indicated that, in some cases, small communities particularly did not have the capacity, or the desire, to establish certain government functions right in the community. They were more than happy and willing to look at how they could come together to give powers to another body to exercise on their behalf.

    We could look particularly at some of the issues around redress. A small community of 50 or 60 people may not want to establish a redress body in the community because of the difficulties that might arise as a result. They might want to delegate the authority for a redress body to a tribal council or come together with another community to form one redress body that could address the issues in both communities. That's a specific example.

    The Chair: Thank you.

    Mr. Vellacott, you have four minutes.

    Mr. Maurice Vellacott: Picking up on that then, Brenda, this is the balancing act. You have a lot of duplication and overlap. If you have 600-plus ombudsmen, or these “bodies”, around the country, at that time, I'm not so sure it would be viable or feasible.

    Is it even a good thing for a small community to have the ombudsman right there?

    I know the provision is made. Maybe it might be better to give a little direction that it should be with a tribal council or some larger regional body.

    Ms. Brenda Kustra: I guess if we consider the enabling provisions of this particular piece of legislation, we would hope that the community and the community leadership would take all of those aspects into account when they make their decision with respect to how their government is going to operate and how the various arms of their government will operate, rather than have government dictate how it should happen within the text of this particular bill.

    Mr. Maurice Vellacott: Well, in this case it's so important in terms of the protection of individual rights and freedoms that I would think you could possibly have a little more of a directive on that.

    I do have a question, then. The bill doesn't identify an appropriate court to hear any appeals, at least that I understand, from a decision of this “impartial body”, and it doesn't seek to preclude appeals or judicial review applications through a privative clause. So help me understand: Who would be the body by which to have appeal of decisions made by these entities or ombudsmen?

    Mr. Andrew Beynon: Perhaps I can answer that. You are right that the bill is not prescriptive on that. It doesn't specifically direct an answer.

    I noted with interest that when Raymond Morris appeared before the committee he was making a technical suggestion to you that perhaps it would be useful to be precise, to give a clear indication.

    In the absence of that, though, it's a matter of some potential for diversity of legal opinion, but I would suggest, at least, that the impartial body would be likely interpreted to be a federal board, a commission, or a tribunal and, therefore, for the purposes of the Federal Court Act, the jurisdiction would lie with the Federal Court and the issue would likely be one of judicial review. In other words, it would be a question of going to the Federal Court to say the impartial body or the impartial person has, for instance, perhaps acted out of bias or it has not properly considered the material. Some element of unfairness of the procedure would be cause for judicial review before the Federal Court, most likely.

    I would like to make another comment.There is one provision, though, in the bill that indicates that if a community provides, in a code, specifically for a right of appeal, and if they as a community turn to address their minds to it being dealt with that way, then that's the procedure to follow. It doesn't go to the redress person.

»  (1715)  

    Mr. Maurice Vellacott: Right, and I would concur. I think it would be helpful to actually have something in the way of a prescriptive as to where that appeal body is, or the appropriate court.

    From a legal point of view, you have suggestions on where you think it would go, but does it get lost in a bit of a quagmire or swamp, legally, for the first nations person trying to figure out where to go next? If it's ambiguous and vague, would this not be helpful?

    Mr. Andrew Beynon: Again, I think my answer would be that I suspect that most lawyers would be probably inclined, upon reading this federal bill, given the nature of this particular activity, to consider that the jurisdiction lies with the Federal Court. But as I say, it is not prescribed. It's up to you as committee members whether or not you want to make that more clear.

    The Chair: Mr. Godfrey, four minutes.

    Mr. John Godfrey (Don Valley West, Lib.): Welcome, and I apologize if I ask anything that, with this strange afternoon of comings and goings, inadvertently forces you to duplicate on anything. I'm sure the chairman will straighten me out.

    My questions are really the coming together of what I would say are both process considerations and legal considerations.

    Question one, to you, Mr. Beynon, has to do with the fact that there was a pre-consultative process with the joint ministerial advisory committee. And I have a feeling, Mr. Beynon, you may even have been there.

    It's interesting the amount of time that the JMAC spent looking at various non-derogation options, right up to number seven, and in the end they came down in favour of number six.

    So my first question would be, is anything lost if we put in a clause, for greater certainty, the number six option, even though it may be redundant, if the people who take this seriously would feel better about it? I know that's perhaps not a very lawyerly thing to do, but it is a process thing to do.

    My second question has to do with a suggestion made quite cogently by a couple of witnesses . I'm thinking of Chief Merasty from the Prince Albert Grand Council, and then this morning, Chief Dick of the Kaska. I think in some cases they would like to be onside, or potentially onside.

    One of the solutions they propose is an “opt-in” clause. My question to you is this, and it may again be to Mr. Beynon. Would such an amendment, such a proposal satisfy Corbiere, or is it legal nonsense? What is the truth about an opt-in clause? Is there anything in law that prevents us from putting one in?

    So those are the two questions.

    Mr. Andrew Beynon: Maybe I would take the first question.

    With respect to non-derogation, I think if you read the JMAC report, what JMAC was focusing on was, what is the intention and purpose of a non-derogation clause? You raised the question of whether or not a clause should be included simply to provide comfort because it's perhaps a gesture of goodwill or because people think it may be something helpful, but does it have any effect? I think--

    Mr. John Godfrey: Or does it have any negative...?

    Mr. Andrew Beynon: Well, I think it is very important for committee members to consider that question. The intention that would underlie developing a clause is quite critical. If the intention is to provide some degree of comfort, some indication of the importance of this issue, or to educate other Canadians about aboriginal and treaty rights, those kinds of functions, then that would suggest a particular approach to the drafting of a clause.

    But one note of caution--and I can't be a legal adviser to the committee--would be that typically the courts, when they come to examine legislation later, would be inclined not to be looking at clauses and saying, oh, this must just be a comfort clause that has no meaning. Typically they would be looking for it to have some substantive impact on the operation of the legislation. That's what the JMAC report considers.

    On the second question you asked, about opt-in, perhaps that merits some further, more detailed response, but I suppose I would make the general comment that with what Mr. Johnson has identified as some weaknesses of the Indian Act, which are facing court challenges, the mechanism of using an opt-in technique is legally possible, and I think most lawyers would agree with that view, but it would leave those who don't opt in still operating under the old Indian Act provisions, provisions that are subject to challenge in the Supreme Court of Canada.

    So again, you may solve one issue by providing an opt-in, that first nations could have a route to do this if they want, but you would not be helping with the weaknesses of the Indian Act that have to be removed in order to reduce liability.

    Just on that issue of opt-in, I will agree that the legislation is not drafted in an opt-in technique, but in regard to the idea of allowing communities to develop codes to move in a different direction from the default regulations or fallback regulations, I'm not trying to say it's the same thing as opt-in, but at least it does allow some flexibility for communities to do something different from what the fallback regulations would provide.

»  (1720)  

[Translation]

    The Chair: Mr. Loubier, four minutes.

    Mr. Yvan Loubier: Thank you, Mr. Chairman.

    I would like to come back to what Mr. Godfrey said. Are you not a little worried about adding and opt-in clause? The bill is so unpopular and is so out of touch with the needs of the aboriginal nations that no one is going to use the provisions it contains. That is the first thing.

    Second, I would like to take up where Mr. Martin of the NDP left off earlier. His question was: who had asked that the bill go in this direction? The officials were uncomfortable, because the aboriginal nations do not want this. Mr. Johnson replied that the request came from the Supreme Court. I think it is rather too easy to give this answer. The Supreme Court asked that a number of things be done, but it did not ask that just any steps be taken.

    The Supreme Court said in the first place that aboriginals had certain rights, including the inherent right to self-government and their treaty rights. That was the first point made by the Supreme Court in its recent judgment on this matter.

    It also said that the best approach was to negotiate with the aboriginal nations as to the best way of exercising the rights they have—namely, the inherent right to self-government and their treaty rights.

    Third, the Supreme Court said that agreements had to be reached in a spirit of honour and respect. It spoke about harmony, peace and constructive relations. When there is neither harmony nor constructive relationships, when there is no peace because you have just thrown oil on the fire as regards relations with the aboriginal nations, I do not think what you have done is really in keeping with the spirit or the letter of what the Supreme Court called for. When you also fail to treat aboriginal nations as equal, you are also disregarding a fundamental role that was put forward by the Supreme Court in many of its judgments.

    Therefore, how can you claim to be responding to the Supreme Court with a bill such as this, when almost all the conditions it put forward have not been respected?

[English]

    Mr. Warren Johnson: There seems to be two questions here, on the opt-in and on the Supreme Court.

    There's no debate on the Supreme Court's questions about aboriginal and treaty rights, and my colleague spoke to them in relation to section 35. But the Supreme Court in the decision in Corbiere did say that parts of the Indian Act, specifically the definition of electors, was unconstitutional, and asked the Parliament of Canada to look at legislative reform within 18 months. This was seen to be too short, and we're now in a process to deal with that issue that is likely to take seven years.

    That issue has been broadened from the broader questions of election to this, based on both the initial discussions we had with all of the first nations organizations on Corbiere and the subsequent discussions with the individuals. I think this is also, in part, an issue for the committee to consider in discussing, for example, the question of opt-in.

    Opt-in is effectively the status quo, because many, if not all, of the significant features of Bill C-7 are not now in the Indian Act.

»  (1725)  

[Translation]

    Mr. Yvan Loubier: Yes, but do you realize, Mr. Johnson, that by answering in this way, you are paving the way for actions before the Supreme Court for the next 100 years? There will be an incredible number of challenges of Bill C-7, particularly if you impose on the aboriginal nations things they do not want, if you reject the common law and ancestral practices, and if you impose on them a system they do not want. Do you not think that the aboriginal nations will go to the Supreme Court to challenge this approach which is just as paternalistic as the Indian Act, and will solve absolutely nothing? I think this is clear, given that the vast majority of the aboriginal nations, the main people involved here, are rejecting your approach. I think that is clear. This is not a move toward harmony and phase two; rather, it is a move toward more legal challenges. I think there have been enough of them. We do not need any more.

[English]

    The Chair: Merci.

    Last intervention, Mr. Martin, for four minutes.

    Mr. Pat Martin: Thank you, Mr. Chair. I have a question to ask on behalf of the Samson Cree and Hobbema people I met earlier today.

    Many first nations have expressed that they don't want Bill C-7 imposed on them. In light of the fact that the Auditor General says first nations are over-audited, if anything, with 168 forms and documents per year they have to file, and that most bands and councils are fully preoccupied with basic needs issues already--they're busy trying to keep their heads above water--if they fail to comply, because they don't want to or they simply can't get around to this fundamental change, and the default codes kick in, what if they fail to comply with those?

    What is the power of law or authority imposed on them then--third-party management? Could you speculate on that, if the scenario were to take place in one or more communities that they could not or would not cooperate, even with the default codes? What are the consequences?

    Mr. Andrew Beynon: Perhaps I could just offer one suggestion. The bill does not specify any particular remedy for failure to comply with the regulations or the requirement for codes.

    Mr. Pat Martin: Who would enforce then?

    Mr. Andrew Beynon: Well, lawyers may differ on this, but I suspect most would suggest that individual community members, if they were particularly concerned about wanting to make sure that a code was developed, that the requirements of the act were complied with in terms of what must be in a code, or that the fallback regulations were complied with, could go to court to seek a remedy, and--

    Mr. Pat Martin: What if nobody did that? Could the minister then justify slapping them under third-party management?

    Mr. Andrew Beynon: Hang on; let me back up for one second, if I may, to clarify my answer.

    There is also a provision in the bill that would allow individuals to turn to the redress mechanism to say the code is not being complied with and they would like to have that remedied.

    On the question of what happens in terms of funding agreements and so on, that's not for me to answer.

    Mr. Warren Johnson: But if I may, I think that is specifically dealt with in clause 10 of the bill. The only bases for the minister's intervention are outlined there. They relate to where there's a deterioration of a band's financial health; failure to make financial statements; or denial of an opinion. As set out in paragraphs 10(3)(a),(b), and (c), there are three times when the minister may intervene to require an assessment.

    You will note in the earlier clause there is a preference in reference to the council dealing with its own community to dealing with that, as opposed to directly moving to third-party management. So this deals with a financial situation, which may or may not be the result of the situation you described earlier, but that's the only remedy specifically in here that would reference that.

    Mr. Pat Martin: I suppose it would be a strategy. If there were widespread opposition or political action, simply not cooperating would be an option. It would take years for that to really have a full effect on the community, wouldn't it?

    If there was no cooperation, the default codes would kick in. Then if there was no cooperation with them and nobody in the community filed a complaint or a grievance, they could plod along for 5, 10, or 20 years before....

    Is that possible?

»  (1730)  

    Mr. Andrew Beynon: I'm not sure if there's a question there. I can only say that the act contemplates the codes and sets up a redress mechanism. If nobody chooses to use that, then it's like many other laws. If nobody is trying to enforce it, then nobody would be trying to enforce it.

    The Chair: Thank you very much.

    We'll invite you to make closing remarks. Before you do, I want to thank you very much for your help. It's been very valuable and, who knows, the committee might want to invite you again. I would recommend it highly.

    Mr. Warren Johnson: I'm not sure we have closing remarks, Mr. Chairman. I would just make one point of clarification. There were a number of points in the discussion where we were talking about both redress and the ombudsman's role as if they were the same thing. In fact, there is a technical distinction between a redress function, where, with the authority to overturn or cause a decision to be remade or in fact to supplant a decision.... Those are the two classic forms of redress, and Bill C-7 embodies the first. The function of an ombudsman is different and usually has a two-tier approach. In most jurisdictions they both exist.

    I understand the committee is discussing this question, but I thought that distinction was important to make, because in the discussion we didn't have an opportunity to deal with that. It came up at a number of points as if the two functions were the same. They usually complement each other in other jurisdictions, and this may be an area the committee will be looking at in terms of the role of an ombudsman.

    The Chair: Thank you very much.

    We'll meet tomorrow at 3:30.

    The meeting is adjourned.