AANR Committee Meeting

Notices of Meeting include information about the subject matter to be examined by the committee and date, time and place of the meeting, as well as a list of any witnesses scheduled to appear. The Evidence is the edited and revised transcript of what is said before a committee. The Minutes of Proceedings are the official record of the business conducted by the committee at a sitting.

For an advanced search, use Publication Search tool.

If you have any questions or comments regarding the accessibility of this publication, please contact us at accessible@parl.gc.ca.

Previous day publication Next day publication

37th PARLIAMENT, 2nd SESSION

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

EVIDENCE

CONTENTS

Wednesday, February 19, 2003

0900

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

Grand Chief Edward John (First Nations Summit)

0905

0910

The Chair

Vice-Chief Herb George Satsan (First Nations Summit)

The Chair

0915

Mr. Reed Elley (Nanaimo—Cowichan, Canadian Alliance)

Vice-Chief Herb George Satsan

0920

The Chair

Mr. Pat Martin (Winnipeg Centre, NDP)

Grand Chief Edward John

Mr. Pat Martin

0925

The Chair

Mr. Charles Hubbard (Miramichi, Lib.)

Grand Chief Edward John

Mr. Charles Hubbard

Grand Chief Edward John

The Chair

Grand Chief Edward John

0930

The Chair

Ms. Debra Hanuse (Commissioner, British Columbia Treaty Commission)

Mr. Miles Richardson (Chief Commissioner, British Columbia Treaty Commission)

0935

0940

0945

The Chair

Mr. Miles Richardson

The Chair

Mr. Miles Richardson

The Chair

Mr. Reed Elley

Mr. Miles Richardson

0950

Mr. Reed Elley

Mr. Miles Richardson

The Chair

Mr. Pat Martin

Mr. Miles Richardson

Mr. Pat Martin

Mr. Miles Richardson

0955

Mr. Pat Martin

Mr. Miles Richardson

The Chair

Ms. Debra Hanuse

The Chair

Ms. Debra Hanuse

The Chair

Mr. Charles Hubbard

Ms. Debra Hanuse

Hubbard, Charles Member

Ms. Debra Hanuse

1000

The Chair

Mr. Charles Hubbard

The Chair

Vellacott, Maurice Vice-Chair

The Chair

Mr. Pat Martin

1005

The Chair

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

The Chair

Ms. Debra Hanuse

The Chair

Ms. Debra Hanuse

Mr. Miles Richardson

1010

The Chair

Mr. Jack Weisgerber (Commissioner, British Columbia Treaty Commission)

The Chair

Mr. Miles Richardson

The Chair

Ms. Patricia Ekland (Senior Policy Analyst, B.C. Association of Aboriginal Friendship Centres)

1015

1020

1025

The Chair

Mr. David Chatters (Athabasca, Canadian Alliance)

The Chair

Ms. Patricia Ekland

1030

The Chair

Mr. Pat Martin

The Chair

Mr. David Chatters

The Chair

Mr. David Chatters

The Chair

Mr. David Chatters

The Chair

Mr. David Chatters

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

Ms. Patricia Ekland

The Chair

Mr. Pat Martin

Ms. Patricia Ekland

1035

Mr. Pat Martin

The Chair

Mr. Charles Hubbard

Ms. Patricia Ekland

Mr. Charles Hubbard

The Chair

Ms. Patricia Ekland

The Chair

1040

Vice-Chief Herb George Satsan

1045

1050

The Chair

Vice-Chief Herb George Satsan

Mr. Pat Martin

The Chair

Vice-Chief Herb George Satsan

The Chair

Vice-Chief Herb George Satsan

1055

1100

1105

1110

The Chair

Vellacott, Maurice Vice-Chair

Vice-Chief Herb George Satsan

Vellacott, Maurice Vice-Chair

Vice-Chief Herb George Satsan

Vellacott, Maurice Vice-Chair

1115

Vice-Chief Herb George Satsan

The Chair

Mr. Pat Martin

Vice-Chief Herb George Satsan

The Chair

Mr. Pat Martin

Vice-Chief Herb George Satsan

1120

Mr. Pat Martin

The Chair

Mr. Pat Martin

Vice-Chief Herb George Satsan

The Chair

Mr. Gérard Binet

1125

Vice-Chief Herb George Satsan

The Chair

Mr. Reed Elley

Vice-Chief Herb George Satsan

1130

The Chair

Mr. Pat Martin

Vice-Chief Herb George Satsan

The Chair

Mr. Charles Hubbard

1135

The Chair

Vice-Chief Herb George Satsan

The Chair

Vice-Chief Herb George Satsan

The Chair

Vice-Chief Herb George Satsan

Mr. Alfred Scow (Assembly of First Nations)

1140

The Chair

1145

Dr. Frank Cassidy (Associate Professor, School of Public Administration, University of Victoria)

The Chair

Dr. Frank Cassidy

1150

1155

1200

The Chair

Vellacott, Maurice Vice-Chair

1205

Dr. Frank Cassidy

Vellacott, Maurice Vice-Chair

Dr. Frank Cassidy

The Chair

Mr. Pat Martin

1210

Dr. Frank Cassidy

Mr. Pat Martin

Dr. Frank Cassidy

The Chair

Mr. Charles Hubbard

Dr. Frank Cassidy

1215

Mr. Charles Hubbard

Dr. Frank Cassidy

The Chair

Dr. Frank Cassidy

The Chair

Vellacott, Maurice Vice-Chair

Dr. Frank Cassidy

The Chair

1220

Vellacott, Maurice Vice-Chair

The Chair

Mr. Pat Martin

The Chair

Dr. Frank Cassidy

1225

The Chair

Dr. Frank Cassidy

The Chair

Dr. Frank Cassidy

The Chair

CANADA

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

NUMBER 031

2nd SESSION

37th PARLIAMENT

EVIDENCE

Wednesday, February 19, 2003

[Recorded by Electronic Apparatus]

¿ (0900)

[English]

The Chair (Mr. Raymond Bonin (Nickel Belt, Lib.)): Good morning, everyone. So that we can start on time, I'll do my formalities before 9 o'clock.

We are resuming public hearings on Bill C-7, An Act respecting leadership selection, administration and accountability of Indian bands, and to make related amendments to other Acts.

We welcome this morning, from the First Nations Summit, Grand Chief Edward John and Herb George Satsan. When you see a lady approach the table, you will note that it's Lydia Hwitsum.

We have 30 minutes together. We invite you to make your presentation, and if you'll allow us some time we'll ask questions. Please proceed.

Grand Chief Edward John (First Nations Summit): First, good morning to all of you. To begin, I would like to acknowledge the Coast Salish people, whose ancestral lands we're on today.

I'd like to thank the committee for making an effort to come to British Columbia to meet with our people, first nations people, but also to open up the sessions to the citizens in the province. I went through an exercise similar to this with respect to the independent claims commission bill, and that was done by teleconference. This is indeed a good opportunity for us to meet with members of the committee and to speak with you directly.

With me today is my colleague Satsan Herb George. He is also the vice-chief of the Assembly of First Nations for British Columbia. For your information, there is a separate presentation that is being presented by Mr. George, and our presentation dovetails and complements that particular presentation.

We have a written presentation, which I have provided to your organizers here. Attached to that are some pieces of information. In the presentation we will be referencing the 2002 Auditor General's Report, as well as the 1991 Report of the British Columbia Claims Task Force, dated June 28, 1991. We reference those and we provide that information as background material to the committee and to your analysts.

The First Nations Summit welcomes this opportunity to appear before you to provide our views on Bill C-7. This proposal to amend the Indian Act will affect how we as first nations carry on our day-to-day business and will impact on our ability to move towards our objectives of self-reliance and the exercise of our inherent right to self-government.

In this presentation we raise two fundamental issues that we feel are important to what we are doing in British Columbia and have been doing for some 10 years now. The two fundamental issues we raise with you are that the bill does not infringe, abrogate, or derogate from our aboriginal rights and title, including our inherent right to self-government; and secondly, not to prejudice in any way or limit treaty negotiations in British Columbia, or the ability of government to come with sensible and flexible mandates to our negotiating tables.

In this submission we emphasize the fact that the inherent right to self-government is a constitutionally protected right recognized and affirmed in section 35 of the Constitution Act. And we underscore the importance of supporting, rather than detracting from, the treaty negotiations process where the future relationship among federal, provincial, and first nations governments and jurisdictions is being developed. We also highlight the significant costs associated with implementing this bill and the potential for exacerbating the already burdensome reporting processes imposed on first nations by Canada.

The First Nations Summit is an association formed in 1991 by the first nations in British Columbia to represent first nations who are engaged in the process of negotiating treaties. The First Nations Summit also advocates on issues that are not related to the treaty process, such as the day-to-day social and economic issues. And certainly we paid, yesterday, very close attention to the federal budget as well as our own provincial budget to examine those two documents for the intentions, at least in the budget documents, of both the federal and provincial governments inasmuch as they have responsibilities for first nations in British Columbia and aboriginal peoples as well.

As one of the principals, along with Canada and British Columbia, of the treaty process, the First Nations Summit plays a significant role in the ongoing process of conducting treaty negotiations to ensure it is accessible to all, but we don't participate directly in the negotiations. We are engaging government on policy issues and have been from day one. We went through the 1992 Charlottetown process. In fact, we were involved in the 1983-87 process to examine section 35 in those very important first ministers conferences.

As I indicated earlier, the submission we make is complementary to the submission that my colleague the vice-chief will make later on this morning, but we focus on the larger political context of the governance discussions and the treaty negotiations process in British Columbia.

This is a governance bill. It has implications for what we are doing. One of the provisions in the bill provides for, after a two-year period, the de facto application of government regulations, government-imposed codes, on first nations while we are in the process of negotiating treaties. One of the substantive issues that we are dealing with at those treaty negotiations tables, of course, is the issue of governance.

The blueprint for the negotiation process is set out in the B.C. Claims Task Force report. In response to the report, which is the report I was referring to earlier, Canada and British Columbia and the first nations agreed to set up the B.C. Treaty Commission, which I understand you will be hearing from later on today, as the keepers of the process. Their role is to facilitate treaty negotiations in British Columbia.

To that end, the Prime Minister of Canada, the Premier of British Columbia, and our representatives signed the historic British Columbia Treaty Commission Agreement in September 1992. This really began the process of treaty negotiations in British Columbia, a very large historical issue that has never been properly dealt with.

I want to skip into some of the points in the task force report. It notes:

[Treaties] will identify, define and implement a range of rights, obligations, including existing and future interests in land, sea and resources, structure and authorities of government, regulatory processes, amending processes, dispute resolution, financial compensation, fiscal relations, and so on. It is important that the items for negotiation not be arbitrarily limited by any parties.

The task force went on to state:

Treaty negotiations in British Columbia provide an opportunity to recognize first nations governments on their traditional territories. It is important that treaties, which receive constitutional protection, be explicit on matters of jurisdiction. The subjects for negotiations will include the powers and responsibilities to be exercised respectively by first nation, federal and provincial governments, as well as clarification of the political institutions which will exercise those powers.

So you can see that in the joint effort between Canada, British Columbia, and the first nations in the early 1990s, we had already begun talking in this area of jurisdictions and the respective relationships between Canada, British Columbia, and first nations. That's what we have been engaged in. This bill, as you can well imagine, has certain implications for what we are doing.

Further, the task force report states:

First nations government, often referred to as self-government, will be an essential component of a new relationship.

The troubling thing is that Canada was partly involved in the presentation in the development of this report. We had senior federal officials as well as an outside individual appointed by Canada to put this report together. In working through a process over six months, we put this plan together that involved Canada, British Columbia, and ourselves. As a consequence, we think that the federal government already has made some obligations and commitments in the early 1990s to us. We don't want this bill to be detracting from a process that we've already been engaged in for some nine years now.

There are 53 first nations groups that are currently participating at 42 tables. To date, first nations have borrowed in excess of $175 million, with none so far concluding any agreement in principle or treaty. A number of agreements in principle initialled in 2001 by negotiators for the parties did not receive the necessary political support, largely because they were formula-driven, and because first nations community members felt they were not sufficient to provide a sufficient basis for them to carry on into the future and to improve their standard of living.

¿ (0905)

Recently the federal government negotiators at 12 of the negotiating tables forwarded letters to first nations suggesting that they will recommend the Minister of Indian Affairs disengage from negotiations unless some concrete progress is made at their tables within the next two months. These 60-day letters do not take into account the reasons why a table may not be progressing, and largely the finger pointing has been at first nations, but I dare say that the federal government ought to be looking at themselves and the mandates they provide to the negotiators when they come to our tables.

With regard to aboriginal rights and the Constitution, as I said at the outset, I won't go into that, but I would like to reference it as an important right that is in the Constitution of this country. We outline some six points that are important.

We also reference the number of court cases, including the recent Supreme Court of British Columbia decision in Campbell, which recognizes that the inherent right to self-government is the right in section 35 of the Constitution of this country. As we have asserted in the past, this inherent right exists. We see it reflected in the affirmation of the right in the Constitution under section 35, as well as under section 25 in the Constitution Act ,1982. We see the court now taking a look at those provisions and expanding and recognizing and giving life to those provisions and suggesting, or stating and declaring, that the inherent right is an aboriginal right in section 35 of the Constitution.

I want to touch very briefly on comments on Bill C-7. We've always suggested and stated that we are in the process of negotiations to really get rid of the shackles imposed by the Indian Act and to move towards implementation of the inherent right to self-government.

We advocate a number of principles that we want to put forward to you with respect to the bill: one, aboriginal and treaty rights, including that the inherent right of self-government must not be infringed, derogated from, or abrogated; two, the fiduciary relationship between first nations and the Crown must not be altered; and three, the first nations must have the opportunity to move forward with the implementation of their inherent right to self-government.

So we make a number of suggestions, mostly with respect to a non-derogation provision. We understand the Department of Justice is looking at the possibility of removing all non-derogation provisions from existing federal bills and federal legislation. We think this is a wrong direction for the government to be taking, particularly in light of the fact that this matter is in the Constitution of this country.

With respect to financial and human resources, we've had an accounting firm, Deloitte & Touche, prepare an implications document for us. If first nations are required to develop these codes, their advice to us is that it will cost each first nation--and in British Columbia there are 200 first nations--in the range of $188,000 to $400,000 per community, depending on whether they are smaller or larger. Given their experience in this area, their advice is that it will be in that range. So multiply that and you will see the significant cost factor in British Columbia. One-third of all first nations in this country--200 out of the 600 first nations in Canada--are in British Columbia.

¿ (0910)

With respect to the Auditor General's Report and the reporting requirements, we see that the Auditor General notes:

First nations reporting requirements established by the federal government organizations are a significant burden, especially for communities with fewer than 500 residents.

And we see in the report--you're all familiar with the Auditor General's Report in December 2002--in respect of streamlining the first nations reporting to the federal government, the Auditor General notes that at least 168 reports are required to be filed by first nations with four federal government departments--the four main ones being Indian Affairs, Health Canada, Department of Fisheries and Oceans, and Human Resources Development. That's a significant reporting requirement. You would think sometimes when you read the press that first nations are totally unaccountable, but when you see the number of reports that are required annually by first nations, it's a significant burden.

We'd like to finally conclude by welcoming the opportunity to present and to appear before you and to ensure that you are aware that a significant number of first nations in British Columbia have been involved for a significant time, at considerable human resources and financial cost on our part--over $175 million, and I dare say it's close to $200 million now--to carry on negotiations with Canada and British Columbia on the very issues that are before you in the bill. We think this has detracted federal attention from the important process of negotiations in British Columbia.

With that, I'd like to turn this over to my colleague if he has any comments he would like to add. Then we'll answer questions, given the time that we have.

Thank you.

The Chair: Thank you.

There are 13 minutes left.

Vice-Chief Herb George Satsan (First Nations Summit): No, you'll hear from me later. I think we should just go directly to questions.

The Chair: Thank you very much.

Before we go to questions, colleagues, I would encourage you when we get back to Ottawa to invite the department and ask about these 168 reports. Everybody seems to think it's obscene to have to do all that reporting. There has to be a way to do it better. I assume it must be their intention to do that, but the committee should be made aware if there's going to be an effort to make that better.

You made a comment on the justice department wanting to remove non-derogation clauses. It's a theme that keeps coming back. I think we should invite the justice department, when we get back to Ottawa, to clear this up. If they plan on doing it, tell us. It makes a difference to the work we're doing, and if they plan on doing it, tell us why, and if they don't plan on doing it, well, we need to know that too. I would encourage the committee as soon as we go back to go through those two efforts.

Questions. We'll do a four-minute round. Who goes first?

Mr. Elley.

¿ (0915)

Mr. Reed Elley (Nanaimo—Cowichan, Canadian Alliance): Thank you very much. We very much appreciate your coming and sharing with us this morning, Chief.

I have a question, to start out with, on process. We've heard from a number of witnesses that the consultation process was not complete, that there were many people left out of it. At the same time, my understanding is the B.C. chiefs, as part of the AFN, wanted very much to be a part of this consultation and have the AFN to be part of it right from the beginning and see it through. But for some reason you were overruled and that did not take place.

As you look back on the history of this particular bill, do you still feel the AFN should have been involved with it right from the beginning and had input right along the way, or at this point in the negotiations and discussions, do you feel it wouldn't have made a lot of difference?

Vice-Chief Herb George Satsan: I'd like to answer that. As the vice-chief from British Columbia, I had the responsibility and the executive authority of trying to negotiate an agreement with Canada to address the proposed amendments. We eventually got an agreement that we brought forward to the chiefs in assembly.

Unfortunately, in my view, the chiefs voted against engaging with Canada on the matters for several reasons. The main reason was that while we're in a process of trying to negotiate an ability for the parties to come together to address these changes in a meaningful consultation, the process was charging along. By the time we had arrived at an agreement and were able to engage Canada properly on this, the time, in terms of the first stage of consultation that Canada brought forward, was rapidly drawing to an end. Even if we were able, even if the chiefs in assembly had agreed to participate, we would have come in at the tail end of the first part of Canada's process. That's a problem.

The fact of the matter is--and we could argue this day and night--the process, in my view, is fundamentally flawed in that proper consultation was not done. I know Canada will argue that it was done. Yesterday the honourable member mentioned that this was one of the most exhaustive consultation processes carried out by Canada. I'm sitting back here in the audience thinking to myself, they must have gotten too tired to talk to us. That's the fact.

The point for us in British Columbia, as my colleague and our chiefs of the First Nations Summit stated, is that we have issues and concerns and here's an opportunity to address them. We have to put confidence in you as a committee. We have to have hope that you will hear what we bring forward and that you will make the appropriate recommendations and changes to reflect our issues and concerns. That's why we're here. Whether or not the first stage of consultation was good, bad, or indifferent is beside the point at this time. What unfolds from here on out is important.

I also want to touch on the point of regulations. This bill is subject to regulations. We don't know what those regulations are. We haven't seen them. We feel that because we haven't seen the regulations, it's impossible to assess impact of various sections of the bill. We need you to understand that we have an opportunity to--

¿ (0920)

The Chair: Thank you very much. You will not see the regulations or the codes because the minister has committed to developing them with you. That's a commitment we heard him say in committee. Everybody asks for the regulations. We are told they are not written yet or decided on, and there's a commitment to do it with first nations communities. I'm just repeating what was said at the meeting.

Mr. Martin, four minutes.

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

I should also point out the minister also said that Bill C-7 was developed with the full cooperation and the input from first nations. For the record, we challenge both of those statements--or question them, certainly.

Thank you, Grand Chief John. The first thing I'd like to deal with is this. In your introductory remarks you made a comment about the non-derogation clause. I'm very concerned that the way you phrased it may be taken out of context and given the wrong meaning. What you said is that this bill does not derogate or diminish in any way, and I think you meant to say that we are concerned this bill should not or must not. Do you want to clarify that for the record?

Grand Chief Edward John: Yes, thank you for the clarification. What I meant to say is that it's important for us that this bill does not derogate from.... We think it has large potential.

On the question of the history of consultation--and the courts of this country, right up to the Supreme Court of Canada, have said it--the British Columbia Court of Appeal has said that if the government is to infringe on aboriginal rights, there is a legal duty to consult and accommodate the aboriginal interests likely to be affected. There's a question about whether or not the consultation was full or complete and whether or not the accommodation requirement outlined in the court decisions have been reflected in this. If there's potential for infringement, the courts have made it very clear there needs to be justification. Part of the justification process they've outlined are the issues relating to consultation and accommodations.

Mr. Chair, on the point you raised regarding the Auditor General and the plethora of reports required, it would be our recommendation that the standing committee recommend that the Auditor General work with first nations and Canada to determine what effective accounting mechanisms ought to be put into place. Well over 200 are required, but it says in the report that 168 are commonly required.

Sorry, Mr. Martin, I'm probably using up your time here.

Mr. Pat Martin: Okay. That was very useful, because I was at the public accounts committee when the Auditor General made those comments. Notwithstanding the new rules around Bill C-7, she actually said that first nations communities are over-audited as it is. She recommended strongly that the onerous burden of 168 papers that have to be filed should be streamlined to a reasonable figure.

I was very pleased that you raised the dollar figure for the cost of implementation of Bill C-7 if it goes ahead. You're the first to raise concrete numbers, and you actually hired an accounting firm to do it. By my figures, at $400,000 per community, it could cost as much as $80 million for the 200 communities, or $400,000 times 200. That's if they cooperate, or if they're able to implement the bill. It doesn't factor in the extra resources and staff time, etc., that may be necessary to drag along the first nations communities who cannot cooperate or will not cooperate.

My point is that we have seen an internal cabinet document or memorandum saying that the total budget for implementation right across the country is $123 million, and that it will come directly out of the A-base of Indian Affairs' budget.

I'm out of time, but with the time we have left, could you comment on whether or not you think it's a reasonable figure?

¿ (0925)

The Chair: There's no time left to comment, but we're going to find you some time for closing remarks.

Mr. Hubbard, please.

Mr. Charles Hubbard (Miramichi, Lib.): Thank you, Mr. Chair, and good morning, Chief.

I'm very impressed with your presentation, as it shows a great involvement over a very long period of time with some very difficult issues. I'm hoping that when we look at your written proposal, we will be able to analyze the bill to try to accommodate as best we can the concerns you have.

I'm a bit taken back at my colleagues' concern with what it's going to cost. I know that costs are always a concern, but I would hope the main objective of all of this enterprise is to make a better system of government and better relationships between our federal government and our first nations peoples. I'm not a great spender of money, but by the same token, I don't think money should be an impediment to working out something that would be best for all first nations people across Canada in the long run.

Chief, you mentioned the concept of self-government and the various tables presently before both groups. I think you are aware there is a clause in the bill saying that the minister or the governor in council can set aside some of this governance legislation for a particular band or first nation that is working at the table towards self-government. Would you like to comment on this, especially as it's a concern here in British Columbia, where we have a good number of people trying to work out an improved relationship between our two nations?

Grand Chief Edward John: You are right. With respect to the de facto provisions, they will be imposed within a two-year period.

If you could repeat the last part of your question, I would appreciate it.

Mr. Charles Hubbard: Clause 34 of the bill says that if there is an ongoing negotiation, the necessity of developing a code for that particular first nation can be put off to a later date in the hope that a final agreement can be reached.

Grand Chief Edward John: Thank you very much.

We will have more details or a recommendation on that when the vice-chief makes his presentation. But the short answer is that we are concerned, as a party and equal at the table, that we now have to go to the federal government or minister to request an order in council exemption from the application of the provisions of the act. We don't know what this means or may do in the end in terms of timing, costs, and delays. That's really the important point.

On the first point of the question of costs, we've raised here the information provided to us by the accounting firm mostly to give you the range of figures we think are out there, given the fact that the government has indicated it will set aside $123 million across the country. In British Columbia alone, if we look at the high range of the numbers, they may be in the range of $80 million. So we are already seeing that there are going to be cost pressures. What we expect is that first nations will not be in a position to comply with the statute and that the de facto provisions will consequently kick in. As a result, we're being railroaded into a process that we haven't really had significant input into developing.

The principles are certainly important, including the issues of accountability, budget preparation, and all of these. No one argues with these, but it's a question of how they are being advanced in the bill and in the absence of negotiations at the treaty table.

The Chair: Thank you very much.

I'll allow one minute for closing remarks. I can't go any longer, because I want to be fair with everybody today.

Grand Chief Edward John: I want to thank the committee for inviting us here. You will hear more details of our presentation from the vice-chief, whose office we have been involved with in developing our response. It is very much a clause-by-clause review and analysis. We have tried to ensure you're aware of the broad picture out there in the process of treaty negotiations in British Columbia, the investment we first nations have made in this process over 10 years, and the implications this particular bill will have, should it receive approval in the House and be put into effect.

Thank you very much for your invitation here today.

¿ (0930)

The Chair: Thank you very much for your contribution. It's been very helpful and will help us in our work.

I now welcome witnesses from the British Columbia Treaty Commission. Miles Richardson and Brian Mitchell, who are listed on the agenda, are not here. I welcome Debra Hanuse and Jack Weisgerber.

Please proceed. We have 45 minutes together.

Ms. Debra Hanuse (Commissioner, British Columbia Treaty Commission): Thank you very much. Good morning to everyone, and thank you for having us appear before you today.

Our chief commissioner will be joining us shortly. He was detained this morning and will jump in and continue our presentation once he arrives.

I'm Debra Hanuse, a commissioner at the British Columbia Treaty Commission, and with me is my colleague Jack Weisgerber, who is also a commissioner at the commission.

I'd like to start by sharing a few words with you about the role of the commission in the B.C. treaty process.

The B.C. Treaty Commission, as you heard in the earlier presentation this morning, is an independent and neutral body. Our key role is to facilitate treaty negotiations in British Columbia and to oversee the process. Our primary role is to facilitate treaty negotiations. We also play a role in managing negotiation support funding for first nations. First nations borrow money to participate in the treaty process; 80% of their funding is in the form of loans, and 20% in the form of contributions. So this is another key role the commission plays in keeping the treaty process.

It's in that capacity, as the independent and neutral keeper of the process, that we appear before you today. We'd like to address some of the implications of this legislation for the treaty process.

Thank you. I'd now like to turn it over to our chief commissioner.

Mr. Miles Richardson (Chief Commissioner, British Columbia Treaty Commission): Thank you, Debra. Good morning to all members of the committee.

I'd like to begin by reading into the record the presentation that the Treaty Commission has prepared, and I will be available to answer any of your questions.

As Debra has explained to you, we're almost 10 years into treaty negotiations in British Columbia. When they began they were unique in Canada, in that the Government of Canada, the Government of British Columbia, and the first nations involved in treaty negotiations--which currently constitute about two-thirds of the aboriginal population in British Columbia--agreed on a process for addressing the land question in British Columbia. In that process we agreed to address governance at the same table as we addressed territorial, land, and resource issues. In that sense they were unique in this country.

After 10 years of negotiations, momentum is building in the treaty negotiations process. I'd like to talk to you a bit about that.

First of all, our understanding is that Indian and Northern Affairs Canada launched the First Nations Governance Act initiative to modernize the governance components of the Indian Act and to provide first nations people with some of the key governance tools needed to improve the quality of life in their own communities. As part of this initiative, INAC clearly stated that the proposed act was only an interim step in the move toward self-government and not a means to replace self-government negotiations. We think that's a really important positive distinction. It's an interim step toward the ultimate objective that will be agreed upon in British Columbia at the treaty negotiations table, which is the appropriate place to deal with these issues.

The objective of achieving self-government is a key goal in the British Columbia treaty process. The Government of Canada, the Government of British Columbia, and first nations are committed to developing a new lasting relationship in which first nations, through capable and effective governing institutions, can govern themselves.

As keeper of the British Columbia treaty process, the B.C. Treaty Commission has chosen to comment on Bill C-7, not to endorse or reject the proposed act but to support the objective of negotiating self-government. Our purpose in appearing before this committee is to ensure that Bill C-7 enables us to move forward with incremental and final agreements on self-government through the B.C. treaty process.

I'll just underline the concept of enabling. Ultimately, governance is about creating reliable, transparent, and accountable pathways to desired political, economic, and social conditions or outcomes. As stated by Indian and Northern Affairs Minister Robert Nault, it is not through the proposed governance act that this outcome can be achieved, but through negotiations based on mutual respect, trust, and understanding. That commitment to negotiations based on mutual respect, trust, and understanding is commitment one among the three parties I mentioned earlier in treaty negotiations in British Columbia.

¿ (0935)

The Treaty Commission and the treaty process were established in 1992 by agreement of the governments of Canada and B.C. and the First Nations Summit. Guided by those agreements and the 1991 report of the B.C. Claims Task Force, the three parties set out to negotiate and implement effective harmonized governing institutions and jurisdictional frameworks for land, resources, and self-government.

However, as negotiations proceeded, both the Treaty Commission and the principals became more aware that due to the sheer number of first nations in the process and the complexity of the negotiations, final comprehensive treaty agreements would take longer to conclude than expected. As a result, in May 2002 the principals conducted an intensive re-examination of the treaty process to identify improved ways to facilitate negotiations and provide benefits sooner.

In November of last year, the principals reviewed final options developed in these tripartite talks and agreed to a number of new treaty-making tools that would provide for more effective and efficient negotiations. Key among these new tools is the ability to negotiate incremental treaty agreements as a means to facilitate the negotiation and ratification of final comprehensive treaty agreements and deliver benefits sooner.

So a final comprehensive treaty is still the objective, but the parties feel that to make negotiations more effective we need to establish deliverable results that make a difference in people's lives sooner, thus the notion of incremental treaty-making. If in a treaty one of our ultimate objectives is a comprehensive self-government agreement amongst the three parties, then the parties are contemplating taking smaller steps that may be implemented earlier toward that objective. Those smaller steps may be rolled into the whole comprehensive treaty at the end of the day. This is an opportunity we see in front of us.

The principals also confirmed that they would consider the need to enact legislative provisions to facilitate the implementation of certain types of incremental agreements and, at the same time, not dictate the outcome of the negotiating process. That's an important understanding. Each of the parties, in looking at developing these new tools for incremental treaty-making, said, some of the initiatives we may wish to take may not have been contemplated in current legislation; therefore, we may need other authorities to enable these steps. The parties agreed that they would leave the door open to consider respective legislative provisions.

Our view is that with proper considerations for these objectives in British Columbia, Bill C-7 could fulfill in important ways a part of the legislative toolbox for governance.

On its face, Bill C-7 appears to be consistent with the Government of Canada's mandate to use incremental agreements in the B.C. treaty process and develop legislative provisions to facilitate their implementation. The proposed act clearly recognizes there may be a need to consider various tools to facilitate negotiations and ratification, and a need for exemption from all or part of Bill C-7 to allow these tools to be developed.

The proposed act states in clause 34:

The Governor in Council may, by order made during the period of two years beginning on the coming into force of section 4, exempt any band from the application of this Act or any of its provisions for a period specified in the order to facilitate the negotiation or ratification of a final agreement on self-government.

In fact, Bill C-7 identifies specific incremental governance arrangements that necessitate exemption from the proposed act. For example, it exempts the band as defined in subsection 2(1) of the Sechelt Indian Band Self-Government Act. So that's been done. However, upon closer examination it is clear that Bill C-7 will do nothing beyond a two-year period to facilitate the implementation of incremental governance agreements for the purposes of supporting the negotiation or ratification of agreements on self-government.

¿ (0940)

It is the Treaty Commission's view that in order to effectively support the negotiation or ratification of final agreements on self-government in the B.C. treaty process, the two-year time period in the proposed act should be deleted, or at least extended. In this way, the governor in council would be able to exempt any first nation from the application of this act or its provisions without the need for legislation for a period specified in the order to facilitate the negotiation or ratification of a final agreement on self-government.

The parties to the B.C. treaty process are addressing those issues of constitutional development, structure, and administration of governments that are covered in the provisions of Bill C-7. Consequently, there are likely to be first nations in the B.C. treaty process engaged in governance development initiatives both at the treaty table and in implementing Bill C-7.

The Treaty Commission suggests that the proposed act should clearly address and provide for the fiscal needs of such first nations. Otherwise, there is a high likelihood that treaty negotiation resources, such as negotiation support and other funding as well as negotiation personnel, will be used to support the implementation of Bill C-7.

It is the Treaty Commission's view that Bill C-7 should incorporate clear fiscal implementation provisions and funding adequate to meet the needs of first nations.

In conclusion, it is clear that the primary purpose of Bill C-7 is to provide the tools to support and promote good governance, not hinder the negotiation of self-government agreements. Within the context of treaty-making in B.C., governance work will continue and interim governance models will be increasingly considered as incremental mandates are tested.

Therefore, in order to maintain the integrity of the B.C. treaty process and to allow for the implementation of Bill C-7, the Treaty Commission recommends the proposed act be amended in two ways: first, to delete or extend the two-year window for exemption; and second, to include funding arrangements that adequately address first nations' needs.

I'd like to thank all the committee members for this opportunity to speak to you and for listening to us. We'd be pleased to address any questions or clarifications you may have.

¿ (0945)

The Chair: Thank you very much for an excellent presentation.

Before I go to questions, I want to say that as chair I try not to ask too many questions and to let the members do it, but we've been at this for four weeks now, and I'm looking for someone who will tell me what constitutes “appropriate consultation”.

I don't listen any more to whether we did or didn't, because there are too many different stories about it, but I'd like somebody someday, maybe today, to come up and say, this is how they should have done it.

It may not be your role to do it--I'm saying it now--but it may be, because you're a neutral body. I'm not asking the question; I'm just begging for information.

Mr. Miles Richardson: I'd like to answer it, if you'd like.

The Chair: Maybe at the end, because it's Mr. Elley's time now.

Mr. Miles Richardson: I just think it's an important distinction, in terms of what we're saying.

The Chair: Trust me, one of them will ask you the question I just asked.

Mr. Elley, five minutes.

Mr. Reed Elley: Thank you very much, Mr. Chairman.

Thanks, Miles, Debra, and Jack, for coming and sharing with us this morning.

We've been engaged in this process in this province for 10 or 11 years now. We don't have a lot to show for it in terms of signed treaties, but we're still working at it, and you folks are doing a great job, I think, in trying to facilitate it.

However, as we take a look at the bill before us, I wonder if you could answer this question for me from your perspective. I'm wondering if you see this bill becoming a template for treaty negotiations, particularly in the governance and financial accountability areas, with those negotiations already underway. If it becomes a template in some way, will it be positive in having an outcome that at some point, at the end of the day, will create harmony and trust within the greater population for all of us?

Mr. Miles Richardson: I think agreements on a government-to-government level, which treaty-making is striving to achieve, are the best hope of creating harmony and positive relations amongst the population generally. That's what we're working toward here.

On your question of templates, I think Bill C-7 and any legislative enactment of any one of the parties in the B.C. Treaty Commission must not produce a template. That's why in our remarks we underlined the concept of enabling. What's going on here in British Columbia are government-to-government negotiations, where each of the parties comes to the table with their interests and, through the give and take of good faith negotiations, an agreement is achieved that's incorporated into a treaty.

Clearly, there will be different governance arrangements in different treaties, but there will be common elements to those arrangements. I think that's obvious because of the nature of British Columbia, which will continue to exist, of course, and Canada, which will continue to exist. But each treaty and the nation that's being negotiated with will have some unique characteristics.

I think the opportunity for this legislation is to enable effective incremental negotiations and not to create a template that straitjackets any of the parties in the negotiation. That's the opportunity there. As we say in our remarks, if the bill created reduced options that are available to the negotiations instead of enabling them, that would constrict and would be a negative consequence of this legislation.

¿ (0950)

Mr. Reed Elley: I understand your straitjacket concern, Miles, but at the same time I'm just wondering, if this bill passes, if you see within the treaty negotiations that the negotiators are going to have to say, well, here's Bill C-7 and here's what we already have in place. Will there be that constant referencing back to something in legislation that will affect the outcome of the treaty negotiations? Do you see that happening?

Mr. Miles Richardson: I think it must not. I would urge the members of Parliament to be vigilant against that happening. The commitments that are made to the treaty process in British Columbia are solemn commitments by each of the governments, including the Government of Canada. They're coming to the table in good faith to negotiate treaties with parties who differ in many respects in their view and in their objectives. Those negotiations must be allowed to unfold.

What we're saying in our presentation here is the reality in British Columbia is that the objective of where we're going on governance negotiations will be established at that treaty table. Our hope is that the parties at the treaty table can look at Bill C-7 and Canada's role at the negotiating table as an option, as an enabling tool, as an authority, that the parties can work together to use to build constructively towards the objective they've established at the treaty table.

I think if any of you listened to yesterday's provincial budget, despite all the rhetoric and the differences between the parties on this issue--

The Chair: I'm sorry, I have to cut in. We're well into Mr. Martin's time. You can bootleg that part of it in another answer. That's the trick to use. Any time you don't have sufficient time, just sneak it into another answer, maybe even Mr. Martin's.

Mr. Martin, five minutes.

Mr. Pat Martin: Thank you.

Thank you, Mr. Richardson.

Speaking of the three parties at the table, many of us were shocked and horrified that the Liberal government in B.C. chose to put the whole issue to a majority vote in the referendum. How does that tripartite spirit of cooperation jive with the fact that one of them wanted to put minority rights to a majority vote and essentially find a way out of the B.C. Treaty Commission process? Do you care to comment on the referendum that was just held in British Columbia?

Mr. Miles Richardson: The Treaty Commission's view is that was an unfortunate occurrence. It tested the commitment that had been built up over the previous nine years to treaty-making. It tested the trust amongst the parties.

But if you look at negotiations today, I believe we're going to survive that task. But what will tell us that is if we start achieving agreements in principle, final agreements, and incremental steps toward treaties in the coming weeks and months. That'll tell the story. Our view is that's an unfortunate event. It's behind us.

Mr. Pat Martin: Fair enough. I won't use our time on that, then.

Let's talk about the broad consultations--the so-called consultations--that took place. We've had literally dozens of witnesses come before us and say that the consultation process leading up to Bill C-7 was a sham, that it was an absolute mockery of the idea of broad consultation, that many people felt they had no real role to play in what ultimately became the package that is Bill C-7, and that now they're having something imposed on them, if you will, that they don't priorize certainly as the key issues facing their communities at least.

We know the legal definition of broad consultation. What in your mind would constitute adequate consultation?

Mr. Miles Richardson: As to the chairman's question at the outset about consultation, in its normal sense I think consultation is something a government does with its constituents. The difference with the B.C. treaty process is that we have three governments at a table negotiating agreements. So the operative term in the treaty context is agreement amongst the governments. That's what will decide the course of action the parties are working towards, the agreement amongst the three negotiating parties, the three governments.

Canada is one of the parties and has undertaken a process to develop some legislation--some authorities, if you will--potentially some tools for this negotiation process. We haven't observed it and we're not experts on how that consultation process unfolded, but it's important to note the context this is operating in. Is this a three-party, government-to-government negotiation, the ultimate objective of which is treaty agreements?

¿ (0955)

Mr. Pat Martin: You only have two specific recommendations in your brief and they're both very valid and very useful to us. You don't ask for a non-derogation clause to be added to Bill C-7. Many of the presenters have commented that the absence of non-derogation clause gives them apprehension and concern. Would that be a recommendation you would make, including a non-derogation clause in the bill?

Mr. Miles Richardson: The Treaty Commission hasn't looked at every little element of the bill in relation to the Government of Canada's agenda and objective. We've looked at it in terms of the B.C. treaty-making process as a political process. And our view is those issues will be addressed in a negotiating context at the treaty tables.

But if the legislation purported to effect the aboriginal rights of the first nations, I think it would blunt its effectiveness as a tool. If it effected the aboriginal rights and interests of the first nations without their consent at the treaty table, I think it would undermine seriously its effectiveness as the tool we say it has the opportunity to be there.

The Chair: There are 15 seconds remaining.

Do you have a comment?

Ms. Debra Hanuse: Well, I'll try my best in 15 seconds.

I wanted to quickly address the whole issue of consultation generally and just briefly touch on the conference--

The Chair: You won't be able to do it in 15 seconds.

The next question.

Ms. Debra Hanuse: I won't be able to. Let's go to the next question.

The Chair: You know how to do it now.

And don't be offended if I cut you off. When the minister appeared, I cut him off twice. I have to be fair with everybody.

Mr. Hubbard.

Mr. Charles Hubbard: Thank you, Mr. Chair.

I will give you time, Debra.

Ms. Debra Hanuse: Thank you.

Hubbard, Charles Member : I can only say I am very impressed with your presentation this morning, not only in terms of the content, but also in terms of the enthusiasm you have towards the ultimate goal of attempting to create first nations governance, self-government for all our peoples here in British Columbia. It's been a long task and I know there have been obstacles. In fact, Mr. Martin has alluded to some of them.

But as a member of Parliament, I certainly had a very good feeling about the recent statement made by the British Columbia government in terms of attempting a healing process that would enable us to look as peoples toward a solution to a long-standing problem.

Back where I come from, New Brunswick, there were treaties signed more than 200 years ago. Some of them are evident, some of them are available, and others are still in the process of being discovered, but certainly they are being looked at.

I would like to congratulate you. And, Debra, if you don't take too much of my last few minutes, I'll allow you now to answer in terms of consultation.

Ms. Debra Hanuse: Thank you very much.

What would be good and effective in terms of consultation? I think part of the problem now is that a lot of this consultation occurs on the back end rather than on the front end. What I mean by that is that somewhere in a backroom people have developed this model of what they see as the solution to a particular problem. Then they take the model and bring it out and they test-run it through this extensive period of consultation on the back end. That's the problem. Everyone's reacting to something that doesn't meet their particular needs.

This kind of consultation needs to occur on the front end, before you even dream up a model. That's the point to go out and talk to people and ask what they need to see addressed in the model, what their needs and interests are. Then you would have the input you need to see that everyone builds the model from the ground up, together. It should not be imposed on people at the end of the day as something that's almost a fait accompli, so there's not really a whole lot of opportunity to change it, other than minor tinkering.

The problem is the car. Maybe the car is not right; it doesn't meet anyone's needs.

And that gets to the whole question of a template. It's not for the commission to speak about what could or should be used as model in terms of the treaty process. But having said that, again, it's one of those top-down rather than ground-up models. It would be ideal if it were functional, if it made sense, if the people who it is going to affect and who will have to live by it have been involved in its development. Then it's going to work. Then it's going to be a positive template for the future.

You have to remember that first nations aren't homogeneous. There is no homogeneity even in the province of British Columbia. As mentioned earlier, there are over 200 entities called Indian bands, which are creatures of statute. There are at least 16 language groups, and those cultures are as distinctive as the various cultures in Europe or Asia or anywhere else in the world. There is no homogeneity. The only common experience first nations share in this province is that they have lived under the Indian Act for 100-plus years. That is the only common denominator across this country in terms of the experience of aboriginal people.

Top-down solutions don't work. Solutions that cover all of Canada and include governance provisions aren't going to work. What's going to work is building it from the ground up. To me, that's what consultation should involve and why we don't need initiatives such as this to be templates for the future. They just don't take into account the regional and cultural variations.

Coming back to the point at the beginning again, it's through negotiations based on mutual respect, trust, and understanding that we're going to get to where we need to be at the end of the day. Imposing legislative solutions isn't going to be the answer at the end of the day. Focus on the understanding part of the mutual trust and respect.

Those are my comments. Thank you.

À (1000)

The Chair: Thank you.

You have 45 seconds left.

Mr. Charles Hubbard: Thank you, Mr. Chair.

I hope your question has been answered. It was a good answer to get.

I'm only going to offer hope, and with that, with the enthusiasm and dedication that appears evident here today, we can get some incremental advances, Mr. Richardson. The idea of one small step at a time is the way we reach many of these solutions.

Thank you, Mr. Chair.

The Chair: Thank you very much.

We have 13 minutes left.

I will ask the three parties to ask a two-minute question, and at the end you will choose if you respond to one or all and involve in your responses your closing remarks, so you will end up with sufficient time.

We will have one question per party. Who will ask the question for the Canadian Alliance?

Mr. Vellacott.

Vellacott, Maurice Vice-Chair : As we look across the world these days, the minimum standards for a code set out in the bill are one of the things we notice. I don't think this is unique to Canada. I think there's almost a consensus around the world as to what works and what doesn't. The United Nations has recognized this.

So when we want flexibility in allowance for the unique circumstances of each band, I think we also want to be acknowledging good governance practices that are widely known and recognized. I don't know that these basic practices are hotly debated. There is a difference of opinion, I'm sure.

Can you give us examples of some unique situations or circumstances that would make it best for a band not to operate using some of the minimum standards in this particular bill? Can you comment on general good governance practices across the world in terms of their evolution and development over time?

The Chair: We have three questions. They will choose which one to answer, if they answer, and then make their closing remarks. We'll give them all the time that's left.

Mr. Martin, one question. You have two minutes.

Mr. Pat Martin: I guess I'd like a little more information on your idea on funding, how necessary adequate funding would be, not just for the implementation of Bill C-7 when it's a fait accompli, but during this process.

Do you believe that first nations communities should have been funded adequately so that they could bring forward meaningful recommendations that would become a part of Bill C-7, instead of just after the fact?

À (1005)

[Translation]

The Chair: Mr. Binet, for two minutes.

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

My question deals with Aboriginal rights. Does Bill C-7 have an impact on your Aboriginal rights?

The Chair: Thank you, Mr. Binet.

[English]

Thank you very much. There are seven minutes left, and they belong to you, our guests, to use as you wish.

Ms. Debra Hanuse: I'm sorry, those were the questions?

The Chair: Those are the three questions, and the seven minutes are yours to use as you wish. You may address the questions, or you may speak of something else.

Ms. Debra Hanuse: Okay, just to address quickly the minimum standards in the code, again, it's a question of the front-end involvement of everyone in the discussion, rather than back-end.

There are minimum standards and there are probably a lot of different opinions about interpreting what a particular standard means--and there are many standards to refer to. We've had that exercise within the commission. We've looked at all the various standards that could be applied in trying to come up with a definition of what the minimum requirements are. It's not for us to say what it is; it's up to the parties to negotiate what that means. There probably will be agreement at the end of the day as to what those standards are, but it would be really helpful if the dialogue started with talking about those standards that everyone thinks are necessary and need to be included.

So at the front end we'll have the consultation and have those discussions, and then we're going to have a lot more success in getting to where we all want to be at the end of the day.

Mr. Miles Richardson: Also on the good governance standards, I think it's clear to everyone that good governance is a desire of each of the parties at the negotiating tables. It's as important to first nations as it is to Canada and British Columbia.

One of the objectives in the governance discussions at the treaty table is to respect each other's fundamental governance institutions and structures. Those governance institutions and structures, to be effective, must be relevant to the people culturally. They must be relevant to the people in terms of who they are.

Having said that, they also need to be effective and harmonized. There needs to be an effective harmonization between the orders of government--Canada, British Columbia, and the first nations--and that's one of the express objectives of treaty-making. How we accomplish that is a matter for discussion, give and take, at the treaty table.

First nations are going to come to the table insisting, knowing who they are, knowing what their fundamental traditions are, and how those should relate to Canada and British Columbia. That's where that debate must go.

Of course, right from the outset of this discussion, to be effective there must be adequate funding for each of the parties. We speak to that in our discussion here. And this relates to the consultation question, also. If the discussions, the consultations if you will, the negotiations, included a full dialogue and discussion from the first stage on the development of these tools--and we've been having that dialogue in the B.C. treaty process--it would make a much more effective product, and I think it would be much more cost-effective for everyone in the long run, especially as it achieves results.

The question of Bill C-7 interfering with the inherent rights of first nations, is, I think, a question. The Treaty Commission is an advocate for the treaty process. We're not here specifically to speak for first nations legal rights, although that's an important matter that is being addressed and resolved through political discussion.

I'll just repeat the answer that I gave earlier. If first nations saw Bill C-7 as interfering with their lawful rights that are recognized and protected by Canada's Constitution--and first nations, in Canada's view, include inherent rights--then that would be a serious impediment to this being an opportunity, an effective tool, for treaty negotiations. It would be very unfortunate.

I'll just say, Mr. Chairman, in closing for the Treaty Commission, that Bill C-7 can be an important tool, an important authority, that the Government of Canada can bring to the table in the British Columbia treaty negotiations on this crucial matter of governance. And we are making progress in this province. Despite the rhetoric, despite what you hear in the media, the negotiations are making progress. We do have a lot of work to do. The issues are on the table for the governments to make decisions on.

As we pull our tools together and make progress toward agreements in each of these areas, we're going to gain momentum. We think this is an opportunity for the Parliament of Canada to continue to constructively contribute to this momentum in British Columbia.

À (1010)

The Chair: You have one minute.

Mr. Jack Weisgerber (Commissioner, British Columbia Treaty Commission): In response to the issue of good governance and the question of minimum standards, it seems to me, as someone who's had some experience as a legislator, that one of the minimum standards for any good government is a buy-in to that governance by the people who are affected. I think if indeed you don't have an acceptance or a buy-in, whether it be first nations government or any kind of governance in which you're involved, you have to have a buy-in from those people who are affected by the legislation.

In whatever field you attempt to impose governance you have to get a buy-in, and we believe in the Treaty Commission that a tripartite negotiation with all three parties there as equal partners is the best way to achieve that. There are minimum standards that Canada may expect, and that's the role of their negotiators. There are minimums that the Government of British Columbia may desire and indeed insist upon, and there will be, most importantly, basic requirements by the first nations based on their culture and historic practices that they will insist on as part of a governance package.

I want to say again that I think the enabling aspect of this legislation is one we see as most important.

The Chair: Thank you very much, and thank you for an excellent presentation. I commend the work that you do and I admire your understanding of the processes and your commitment to doing well.

Thank you.

Mr. Miles Richardson: Thank you for the opportunity, Mr. Chairman and all the members of the committee.

The Chair: We are now pleased to welcome to the table, from the B.C. Association of Aboriginal Friendship Centres, the senior policy analyst, Patricia Ekland.

Welcome. We have 30 minutes together, so the time is yours.

Ms. Patricia Ekland (Senior Policy Analyst, B.C. Association of Aboriginal Friendship Centres): Good morning.

I bring greetings from our president, Grace Nielsen, who would have liked to be here today but is ill and not able to attend. We have, through Grace, developed a brief that we have submitted to you.

I wish to acknowledge the Coast Salish First Nations of this area and honour the traditional hosts of this territory and thank them for caring for the land we are on today for this meeting.

My name is Pat Ekland, and on behalf of the B.C. Association I'd like to extend greetings to members of the committee and the other presenters from bands and other aboriginal organizations, our colleagues and friends from the Assembly of First Nations B.C.--unfortunately I wasn't here early enough to hear their presentation--the First Nations Summit, and the Treaty Commission.

Our great and best orators aren't here today with me, so I'd appreciate it if you'll indulge me and allow me to read from a presentation.

The B.C. Association of Aboriginal Friendship Centres is a non-profit society comprised of 24 autonomous aboriginal societies--24 aboriginal friendship centres that offer programs and services for aboriginal people throughout this province.

We're a member of the National Association of Friendship Centres. We have 117 friendship centres across Canada. The movement in B.C. is 50 years old and very strong, and the umbrella association has just completed celebrating its 30th anniversary--30 years in operation with a very long track record of inclusive service to all aboriginal people. We have a good track record of commitment and accountability, and we are the single largest infrastructure of aboriginal programs and services in the province of B.C.

Our mission is to enhance the quality of life of aboriginal peoples in British Columbia. We do that by supporting the activity of friendship centres through inclusive, status-blind program and service delivery.

It's meaningful to understand that the earliest friendship centres in this province took root really to provide a cultural bridge for aboriginal peoples between the reserve lands and the urban areas. As you may know, it was not until the middle of the 20th century that the aboriginal person was able to travel off the reserve lands without the permission of the federal government. Therefore, it's not accidental that this was when the first friendship centres began in Port Alberni and Vancouver. As we enter the 21st century, the friendship centre movement is strengthened, continues to grow, and is more relevant than ever.

Our association has traditionally advocated for centres, its members, and thereby we accept a role in facilitating an expression of the interests of those first nation band members who live off reserve and have established a connection with our urban and rural centres. We do this as well for aboriginal peoples with or without band membership who are connected to us.

We really want to be clear that we acknowledge the Assembly of First Nations B.C. and the First Nations Summit for their role in analyzing and responding to this legislative initiative, the proposed First Nations Governance Act. We recognize their lead and the lead of first nations on this bill as it pertains directly to bands.

We submit for consideration a resolution that our association and the entire provincial board drew up. We have provided that summary for you. That resolution was in June 2001 and indicated our support.

À (1015)

The purpose of this presentation is to identify specific areas of interest to our association and its mission. We advocate the interest of our members and, by doing that, the clients they serve. Those clients include members of first nations and bands living off reserve, those members requiring essential and tertiary services.

Governance and self-government: It's important that we state that we recognize at the outset that this bill is not about self-government. We recognize that in this bill the tools are provided--governance tools--for authority of bands and nations. We wish to emphasize that when there is a requirement for permission or approval or enforcement from other than those governed or impacted there is no self-government.

We would also like to address the Corbiere context. The First Nations governance initiative has arisen out of the 1999 Supreme Court of Canada Corbiere decision. The government responded to Corbiere with two stages. The first stage removed the effect of the words “and is ordinarily resident on-reserve”. The second stage grew other themes such as financial management and administration including leadership selections, and that has yielded a proposed First Nations Governance Act.

The association would like to say that this discussion derailed a further Corbiere discussion, and a fuller discussion is needed. In addition to leadership selection rights, the 1999 Supreme Court of Canada Corbiere decision allows for meaningful input into decisions that affect the interests of members, regardless of residency. In the interest of first nations off reserve who connect with friendship centres and in the interest of first nations off reserve who are impacted by the Corbiere decision, and as an interested stakeholder, we recommend that further guidance regarding the full impacts and implications of Corbiere has yet to be completed and we urge that engagement.

Short title: The language of the title of this bill should more clearly reflect the true nature of the bill--the provision of governance tools to bands. This has been the minister's stated purpose, and it is so specified in the purposes, clause 3. The rules operate on “an interim basis” only as per paragraph 3(a). First Nations Interim Band Governance Tools Act is a suggested short title.

Interim basis: The proposed act operates on an interim basis “pending the negotiation and implementation of the inherent right of self-government”, clause 3. The bill should expressly state “interim”, indicate what follows this interim action, how the rules are optional, and how and when this legislation becomes superceded.

In the purposes section, if pending the “negotiation and implementation of the inherent right of self-government”, paragraph 3(a) is specifically referencing the negotiation and implementation of same by bands, the language should expressly specify the word “bands” in this clause.

Transparency and accountability: The B.C. Association acknowledges accountability and transparency as a desirable objective. The bill includes effective, timely, and accountable management, leadership, administration, and finances of section 74 Indian Act bands. It does read like a guide to functional operation of a non-profit society and rings of municipal governance law-making and prescribes public administration micromanaging the affairs of band institutions. It is suggested that the bill allow for bands to have choices and options about how that transparency and accountability occurs. It is also suggested that the commitment and accountability to services to members, regardless of residency, be clarified and strengthened.

Rights of all members respected: Whereas the rights of all members of the band are respected, this includes the rights and interests of members residing off the reserve and should be added to the bill in the language of the interpretation section or the purposes section. The specific references in relation to the leadership selection code, subclause 5(5), are important, though narrower, and a broader commitment to this principle is recommended.

À (1020)

Portability of rights: The legislation should include a clause that acknowledges and protects the portability of rights of first nations members notwithstanding place of residency, consistent with the Supreme Court of Canada ruling in the case of Corbiere v. Canada and the Batchewana Band.

Non-derogation clause: The legislation should add a non-derogation clause and expressly state that the act is not intended to abrogate nor derogate nor infringe upon aboriginal or treaty rights, inclusive of inherent and aboriginal rights to self-government, and specifically the federal policy on aboriginal government, 1995.

As a final note, while the B.C. association and some of its members have received an INAC representative to provide an information session and kits, there has been limited ability for the urban aboriginal sector to contribute to the first nations governance initiative.

While we recognize the lead that the first nations leaders and their respective organizations have in this initiative as per our provincial resolution, we are an interested and impacted stakeholder. We welcome collaboration and capacity to enable the B.C. Association of Aboriginal Friendship Centres' participation in a meaningful way with both government and our first nations colleagues.

I hope that these comments today have been helpful.

[Witness speaks in her native language]

À (1025)

The Chair: Thank you very much. They are being helpful and I'm sure will be developed through questioning by my colleagues.

This is a four-minute round. Mr. Chatters.

Mr. David Chatters (Athabasca, Canadian Alliance): Thank you Mr. Chair.

An excellent presentation from an aspect that we haven't heard much of. I don't know whether you had a chance to review the transcripts of those presentations in Ottawa by the Congress of Aboriginal Peoples, which purports to represent non-reserve aboriginal people. But clearly I think the friendship centre organization has a more grassroots, direct affiliation with that urban aboriginal group. I really appreciated your comments, because it's one of the most common complaints that I, as a member of Parliament, get. Although Corbiere addressed the issue of the right of non-reserve aboriginals to vote and participate in the leadership selection process, it really didn't do much, at least directly, to address the issue of how non-reserve aboriginal people access benefits and rights that should be theirs as staff and band members.

You're right, I think this bill really misses that, and I think that's something we as a committee will certainly work to address when we get back to Ottawa, because it is very common--those issues of health care and education and those other benefits that accrue to reserve resident natives and yet not to the urban group.

There's really not a question there, Mr. Chairman, but rather a statement. I really do appreciate your remarks. They're excellent.

The Chair: Did you wish to add to those comments or move on to Mr. Martin?

Ms. Patricia Ekland: I think I'd probably just like to say that I haven't had the opportunity to see the presentation by the Congress of Aboriginal Peoples. We also have a national association that I believe did a presentation.

With regard to the comment on services, this is one of the areas in which we are an interested stakeholder and we do have a great interest in ensuring. Because of the nature of our services, which are inclusive, as stated earlier, many of the centres on the ground do serve--and I know our colleagues will acknowledge that--members from first nations bands and nations.

I think the message we'd want to put forward is that will continue to be a service we provide. Depending on the outcomes of the arrangements through this particular piece of governance and legislation, we are open to collaboration for how we may work with first nations and bands and their members with regard to services.

À (1030)

The Chair: Thank you very much.

Mr. Martin, four minutes.

Mr. Pat Martin: This bill constitutes the most comprehensive changes to the Indian Act in over 50 years. It will change in a very concrete way the fiscal management issues on reserves.

We've been hearing that the consultation process was flawed, to the point where, if the default codes get imposed on a first nations community two years from now, the average person won't even know that their life has been changed, because they weren't involved in the development of these changes. What is the position of your association with regard to the default mechanism?

The Chair: Before you respond, I have to clear up something. It's not two years from now. The regulations and codes will be developed with first nations. It will be two years from the time they have been developed. It means over three years.

Mr. David Chatters: That statement was not correct, Mr. Chairman.

The Chair: Do you mean my statement?

Mr. David Chatters: No.

The Chair: That's what I'm saying.

Mr. David Chatters: Mr. Martin's statement was that if you don't accept--

The Chair: You'd better call a point of order, then.

Mr. David Chatters: Okay. I have a point of order. He suggested that if a band doesn't accept the standards within two years, they'll be imposed upon them. What the bill says is that if the band doesn't develop its own unique and individual set of codes within two years, then a default code will be imposed upon them. That's quite different.

The Chair: Exactly.

Mr. Pat Martin: Why don't you make those points on your time instead of on my time? You have a right to your opinion, Mr. Chair--

The Chair: I accept that. In the future I will not allow individual members to correct. But as chair, I can't allow a statement that says it will take effect in two years, because it's false.

I'll give you more time for having been interrupted. I have to keep the record straight.

Mr. Pat Martin: Your intervention is more of an editorial comment than it is a point of fact.

The Chair: It's a statement of fact.

Mr. Martin, I will allow the time that I've taken from you.

Mr. Pat Martin: As we have every reason to believe that this bill will be plowed through Parliament by June even if people have expressed clearly that they don't want it and don't like it, what do you think about the fact that the default codes will be imposed on a first nations community if they don't develop their own?

Ms. Patricia Ekland: I don't really want to pass the buck, but I would like to defer and refer to the position the Assembly of First Nations has taken on this for B.C. Our interest is in being collaborative and not prescriptive on the bill. I would say that the way in which legislation works, that would be an inevitability, depending on what the final legislation says.

The Chair: We'll give the time back to Mr. Martin. There are two minutes left.

Mr. Pat Martin: I appreciate that. Thank you.

The very real issue of funding has come up. A lot of first nations communities and organizations have made the point that they're already burdened with a lot of administrative costs and details in just running the day-to-day operation of their community, never mind the basic needs issues. There will be a cost associated with the implementation of these changes. Many have expressed the view that they won't have the capacity to develop these changes above and beyond their other burdens. What is your view on the financial burden associated with the implementation, which may take away from spending on other basic needs programs?

Ms. Patricia Ekland: This is not an area that we have specifically looked at or analyzed. It stands to reason that if a finite amount of resourcing needs to be allocated, along with additional workloads and objectives you need to have in place, that is going to have a very big impact on the other areas where that resourcing could be placed.

À (1035)

Mr. Pat Martin: Thank you.

The Chair: Mr. Hubbard.

Mr. Charles Hubbard: Thanks, Mr. Chair, and good morning.

According to the statistics we have here, probably 48% of the first nations peoples in British Columbia live off reserve. And with that, your friendship centres are a very important part of the life they are involved with or encounter in their cities and towns and so forth.

You referred to Corbiere in terms of people voting. I've been involved in education for years. A very important part of education for those who live off reserve, of course, is the provincial availability of services in education and health and so forth. They do have access.

But I've noticed a problem especially with post-secondary education over the years. The chief and council have a certain amount of money each year to allocate to post-secondary education and to enable some of their people to attend universities and colleges. But the people off reserve sometimes complain that there just isn't enough money, and the chiefs are not able to allocate moneys to these people in the same degree as do with people on reserve.

Is this a problem you have experienced in your work with the friendship centres? Education is such an important part of a person's future. I know the minister has recently announced the allocation of some money for our first nations people in this regard.

We may be talking about voting, and voting is important; but sometimes access to education is just as important, if not more so, than getting back to vote on a particular issue affecting people on the reserve. Have you experienced people with problems in terms of access to post-secondary education?

Ms. Patricia Ekland: Certainly I have, and I think your figures on the number of aboriginal people off reserve are close. Almost half do live off reserve. This is not to say that all these folks come to our centres for services, but as a general statement I could say that education is a big concern.

In our centres, we do not have direct connections with the post-secondary level per se. As you mentioned, because nearly half the people live off reserve, or in and out of urban areas in some way, it's important to state that many of the people living off reserve are also youths under the age of 24. In addition to education, as you're mentioning, there are many other very essential services these people need, including housing and shelter, access to good health services, and employment and training. We have worked to provide assistance with programs and services in these areas, particularly in employment and training and moving toward the objective of going on to post-secondary.

Mr. Charles Hubbard: Thank you, Mr. Chair.

The Chair: And we have some time for closing remarks.

Ms. Patricia Ekland: In closing, again I would just like to thank the committee for the time they have taken to hear our remarks. I was negligent at the beginning and I would also like to add that I wanted to dedicate the words in today's presentation to the aboriginal youth of the province, as they do constitute almost half the aboriginal population and they are also the most mobile, moving around the province.

Thank you.

The Chair: And I will add that they are very fortunate to have you on their side. Thank you very much.

I now invite, from the Assembly of First Nations, from the Office of the B.C. Regional Vice-Chief, Satsan Herb George, Chris Robertson, Alfred Scow, and Liliane George. Also, we have two fine gentlemen, Nathan Matthews and Frank Cassidy.

Welcome. We have one hour together. We invite you to make presentations. I would hope you would allow time for my colleagues to ask questions.

Please proceed.

À (1040)

Vice-Chief Herb George Satsan: Thank you very much, Mr. Chair. Good morning to you and to your colleagues.

First of all, I'd like to pay respect to the Nanaimo people and Salish Nation, of course, whose land we are currently visiting. I want to thank you for the opportunity to appear before you regarding Bill C-7.

Before I begin, I want to acknowledge the people who are with me so you understand why they're here. My presentation is in regard to the entire bill, from the preamble through to the end.

The people who elected me to represent them have also been involved in the work I'm putting forward: the First Nations Summit, the largest aboriginal organization in Canada outside of the Assembly of First Nations; the United Native Nations Society, the urban organization in British Columbia, represented here by vice-president Liliane George; the Shuswap Tribal Council, represented today by Chief Nathan Matthews, its chair. My two colleagues who are here with me worked with me in putting this together.

I'd like to make some preliminary comments before I get to the body of the work itself. Number one, I think it's important to point out that in terms of a vision for a better future for our children and our grandchildren and those yet unborn, that vision has to come from us as aboriginal people. You can't sell it to us and you can't impose it upon us.

I have a son who is 12 years old. I talked to him this morning while I was getting ready to come here, and he assured me that I was going to do a good job, so I'm going to do a good job today. I also have a grandson. My vision for their future has nothing at all to do with the Indian Act. I hope, when they grow up and have children, they will have nothing to do with the Indian Act, that they can be free people, choosing what they want to do in their lives and supporting themselves.

In terms of the bill we're dealing with, one of its fundamental flaws, of course, is that it did not involve in the proper way the people it was intended to help and to serve. Now, I don't want to get into a big debate about that. The point I want to make is that we have to rely on you as a committee to listen to the issues and concerns we have and the recommendations we make. We need to leave here with a feeling of hope that you will take these issues and concerns we bring forward and treat them in a sincere and respectful manner. Hopefully, we will see positive and constructive change arising out of this.

I have travelled across the country dealing with this matter, talking to people in many different regions. Several issues and concerns were constant across the board. What is the relationship between the proposed amendments under section 91.24 and subsection 35(1) of the Constitution Act, 1982?

Another concern is the issue of infringement. Does this bill infringe upon our inherent right of self-government--as you've already heard--recognized by the Supreme Court of British Columbia and recognized and protected under the Constitution Act, subsection 35(1)?

People are also concerned with the whole notion of legal status and capacity. We will address that.

Most importantly, the final issue is that this act not in any way be able to infringe upon or move out of the realm of section 91.24 towards subsection 35(1).

My job was to put this work together, address these concerns and issues, and to confine these amendments as much as we can to the Indian Act itself.

À (1045)

I'll get to the bill itself now.

In the preamble, the purpose of the bill, according to the minister, is to provide first nations operating under the Indian Act with the tools needed to improve the quality of life in their own communities. It then goes on to refer to Canadian governance values. The concern we have is that the preamble does not recognize or refer to aboriginal governance values.

We recommend a clause be added to the preamble to recognize that first nations have their own values in terms of governance, that these are reflected in our customs, traditions, and practices, and that we need to protect and preserve that right. We recommend inclusion of language in the preamble that recognizes that we have our values too. This is not just about Canadians; it's about aboriginal people.

The other thing in terms of the preamble is that the minister has made it clear in his instructions, for example to JMAC, that this is not to infringe on aboriginal title or treaty rights. We need to see in the bill a commitment on the part of Canada not only to protect against that infringement but to commit to negotiating self-government arrangements beyond the Indian Act.

We've added this language: “Whereas the Government of Canada has adopted a policy recognizing the inherent right of self-government as an aboriginal right and is committed to the negotiation of self-government agreements”.

We recommend this clause be added to the bill itself.

The other concern for us is the whole issue around non-derogation. If the intent of the minister when he proposed this bill was not to infringe on aboriginal or treaty rights, then why isn't it stated within the bill itself that this is the intention of Canada? Our concern here is that if it's not addressed, then it leaves a bad taste in our mouth because of the mistrust that already exists around this process.

So in respect of this, we adopt the presentation made by Jim Aldridge to you on January 3, 2003. We offer a new clause to be included in the bill that addresses the whole issue of non-derogation, and we offer language to this effect.

In clause 3 regarding the purposes of the bill, to provide effective tools of governance on an interim basis, we feel the enforceable portions of Bill C-7 do not provide an express commitment to negotiate self-government agreements, and that the measures set out in the bill extend beyond the purposes so expressed and raise the concerns that we addressed.

We recommend that clause 3 be replaced with the language we bring forward, which again brings forward the commitment of the Government of Canada to negotiate and implement self-government arrangements beyond the bill, because the bill is an interim thing.

À (1050)

The Chair: Documents are being distributed, and we know the rule: if there are documents to be distributed, they're given to the clerk, and the clerk makes them available to all members.

Mr. Martin, please continue.

Vice-Chief Herb George Satsan: We did distribute documents, and I hope you have them. Do you have them?

Mr. Pat Martin: No, not what you're actually reading from, sir. I only asked for an updated copy of--

The Chair: That is interrupting the proceedings. We know that any document does not go to one member, it goes to the clerk.

Vice-Chief Herb George Satsan: I brought them to the clerk.

The Chair: I was looking at the wall at the back, but I'm really speaking to Mr. Martin.

Please continue.

Vice-Chief Herb George Satsan: We offer language to reflect the commitment and to also reflect our values. In terms of clause 4, relating to band-designed codes, the problem we have in terms of clauses 4, 32, and 36--and we raised this point earlier--is that it's difficult to properly assess without knowing what the regulations are going to be.

We feel and we recommend that regulations should be made available for review prior to third reading of the bill. I've heard what you said earlier on, Mr. Chair, but nevertheless we still make that recommendation because we feel that it's of critical importance to us.

We also propose under subclause 4(1) that different language be added. Clause 4 would then read: “The council of a band or the recognized leadership may, at any time prior to or pending the implementation of self-government arrangements with the Government of Canada, propose any of the following codes”. Again, it's to make the point of the commitment beyond Bill C-7. We don't want to have a situation where Bill C-7 slows down that process.

The other issue we have here is regarding the 25% formula for ratification. We feel that we need to also propose new language there. Subclause 4(2) would then read: “A proposed code is adopted if: (a) it is approved in accordance with an adoption procedure negotiated and agreed to between the band and the Minister; or (b) in the absence of an agreement referred to in paragraph (a), if it is approved in accordance with an adoption procedure which has been approved by a majority of eligible voters of the band who participate in the vote, if those who vote to approve it constitute more than twenty-five percent of all eligible voters.”

Subclause 4(3) we feel should be deleted. That will follow amendments that we propose later on to clauses 31, 33, and 36.

We feel a subclause 4(4) should be added to the bill. Subclause 4(4) would then read: “Adoptions of leadership selection, administration of government or financial management accountability codes as set out in this and related sections (a) are interim measures pending the fulfillment by Canada of its commitment to negotiate and implement self-government arrangements with aboriginal peoples; (b) in no way diminish the Government of Canada's commitment to negotiate and implement self-government arrangements.”

Regarding clause 5 and the leadership selection code, we feel that code, along with the other codes, is too prescriptive in its language and in our view is disrespectful to our people. We feel that we need to change and reword the language to meet an objective as opposed to having something just slammed on us.

We're recommending that the existing clause 5 be deleted in its entirety and that the following clause be substituted in its place. I'll read you the first part of clause 5 because the following (a), (b), (c) and (d) are consistent with what's already here. Clause 5 would then read: “A leadership selection code adopted by a band must address and achieve the following objectives”, and we go on to list those that are already within the existing bill.

À (1055)

Clause 6 is the administration of government code. Again, the issue that we have with the language of clause 6 is that it's overly prescriptive and therefore inconsistent with the recognition of aboriginal self-government and potentially inconsistent with aboriginal customs and traditions. We recommend that clause 6 be modified as follows, at subclause 6(1): “An administration of government code must address and achieve the following objectives”, and again we list the same objectives that are here.

We move right on to clauses 7 to 9, which have to do with the financial management and accountability code. As you heard this morning, we're probably the most accountable group of people in Canada and yet we're still being asked to be even more accountable. In terms of the financial management portion of it, our chiefs, when we're looking at this issue, have no problem or issue with better financial accountability and transparency, no issue with better administration and so on.

So in terms of the clauses regarding financial management, we would like to add to clause 7 a new paragraph (i), which would then read: “the reporting of financial information to band members”. Currently within the body of work that you have before you, there's no discussion of reporting to our membership, and so we would like to see that added on to it.

In clause 10, regarding the financial breach and recovery plan, the issue we have there is the influence of the role of the minister. We feel that subclause 10(3) should be deleted or, in the alternative, that the role of the minister under the existing subclause be assigned to an independent first nation institution. The whole point of Bill C-7, according to the minister, is to empower first nations, and we question why the minister should continue to give himself more power within the proposed amendments.

Clause 11, complaints and redress: We recommend in clause 11 that the introductory language be modified to read: “The council of a band may authorize an impartial person or body to consider fairly and expeditiously any complaint be a member of the band or a resident of the reserve....”

And it is recommended that subclauses 11(2) through (5) be deleted and that the following subclause be substituted: “(2) The resolution of such a complaint will be guided by a community's customary modes of dispute resolution.”

Clause 15, regarding powers of band councils: Again here we get to the whole issue of the legal status and capacity of a natural person. We feel that the manner in which this clause is drafted adds significant clarity to the legal status and capacity of bands as decision-makers as in the commercial mainstream and also confirms the band's authority to act through its band council. In this regard, Bill C-7 is helpful.

What is unhelpful is the ambiguity created by the reference to natural person in subclause 15(1). Similarly unclear is subclause 15(3), which provides that the legal capacity, rights, powers and privileges referred to in subsection 15(1) do not affect the legal status of a band and do not have the effect of incorporating a band. Whereas subclause 15(3) suggests that the tax exemption under the Indian Act remain intact, it leaves open for debate the question of the band's legal standing as the governing entity.

So we recommend that the language be changed, and subclause 15(1) would then read: “The rights, powers and privileges of a band include the capacity to: (a) enter into contracts”, and those are pretty much the same as what has been listed here.

Á (1100)

Subclause 15(2) would read: “A band acts through its Council in exercising its legal capacity, rights, powers and privileges referred to in subsection (1).”

And for greater certainty, subclause (3) would then read: “the legal capacity, rights, powers and privileges referred to in subsection (1) do not: (a) have the effect of incorporating the band; or (b) abrogate or derogate from existing treaty or aboriginal rights”.

Regarding clause 16, laws for local purposes, the difficulty we have with this provision is that it seems to empower bands to make laws that are limited to those specifically enumerated within paragraphs 16(1)(a) to 16(1)(p). And given the highly controversial nature of this provision in clauses 16, and 17, and 18, and the fact that Bill C-7 was intended to facilitate aboriginal government rather than curtail it, it is recommended that the language in subclause 16(1) be amended to clarify that it does not limit inherent powers. Moreover, to the extent that the powers set out in clause 16 are co-extensive with the inherent right of self-government, subclause 16(2) is capable of being interpreted in a manner that is inconsistent with section 35 of the Constitution Act and must be clarified to ensure that it does not purport to affect the inherent right of self-government.

So we propose that clause 16 be replaced in its entirety, and we propose new language. I'll just read you the first part of it.

Clause 16 would then read: “Without abrogating or derogating from any existing aboriginal or treaty rights of the aboriginal peoples of Canada or the protection accorded to such rights under section 35 of the Constitution Act, 1982, and without limiting any authority which may be vested by virtue of the inherent right of self-government of an aboriginal people, the powers of the Council of a band to make laws for local purposes, applicable on the band's reserve, include:...”

We would like paragraph 16(1)(l), which now reads, “the keeping of wild and domestic animals, except fish, and related activities” to be amended to read, “the keeping of wild and domestic animals and related activities”, and take out “except fish”.

And under paragraph (o), we would like to add “the regulation of gaming activities and gaming establishments”.

The other issue regarding clause 16 is in terms of the conflict of laws. Under the current language, it says that in the event of a conflict of laws between laws made under the code and the laws here in Canada, the laws of Canada automatically would have paramountcy. We feel we need to clarify this and we offer language to that point. And the language we're offering is: “In the event of an irreconcilable conflict between a law made pursuant to an authority vested by this section and an act of Parliament or any regulations made pursuant to an Act of Parliament, the conflict shall be resolved through a conflict resolution mechanism negotiated between the band and the Minister.”

We feel that the conflict must be reconcilable and that there should be opportunity for our communities to go through dispute resolution before a paramountcy of Canada's laws automatically applies.

We offer new language in terms of clause 17, and again we deal with the issue of conflict of laws, laws regarding band governance. Again, we add a new clause at the outset to deal with the issue of non-derogation and to deal with the whole issue of conflict of laws.

Á (1105)

Regarding clauses 31 to 34 on regulations and orders, we feel that the bill should not discriminate between bands, and that all bands should have an equal choice whether or not to adopt the regulatory scheme. We recommend that subclause 32(1) be replaced with the following language: “The Governor in Council may make regulations providing for the matters with respect to which a code may be adopted under section 5, 6 or 7.” We also recommend that subclause 32(2) be deleted.

We again raise the issue of regulations. They should be made available in draft form prior to the third reading of this bill, because it's impossible for us to assess the impact without the benefit of seeing these regulations.

We also recommend that clause 34 be deleted because of the proposed changes we are recommending to clause 36.

Regarding clause 35 on non-application, we feel this clause is restrictive in the sense that it only addresses certain completed self-government agreements and legislation. There is no provision for the exemption from the act of first nations who negotiate self-government agreements or treaties in the future. For example, the two-year timeframe referred to here is specific to agreements already in place. If my nation, for example, doesn't conclude a self-government agreement within two years of the coming into force of these proposed amendments, it's not clear whether the provisions under Bill C-7 would then apply to any future self-government agreements I might negotiate. In our view, this is inconsistent with the language referring to the agreements already in place.

We recommend that new language be added to deal with this. We would add the following paragraph, which would become paragraph 36(e): “any band or First Nation who is the party to or is included in a treaty or agreement with the Government of Canada providing for self-government”.

Finally, regarding clause 36 on the grace period, we feel it should be amended to read as follows: “Regulations made under section 32 do not apply to a band unless the band adopts those regulations by a vote of its eligible voters conducted in the same manner as a vote for the adoption of a code under section 4”. The inconsistency we see here is that if you produce a code, you're requiring our membership to vote for the code and to have a 25% majority for the code to be applied to it, yet failing that, the default codes are then going to be imposed upon us. If you're asking our people to vote for whether or not their own band-designed code should apply, then we feel the same standard should apply to the codes you refer to in terms of default.

In terms of that issue, we would like to add that the two-year timeframe is just an arbitrary number. We feel that the two-year timeframe is too short, and would like to propose our own arbitrary number of three years.

That's the end of my presentation. We're willing to answer any questions or to make clarifications if you so wish.

Á (1110)

The Chair: Thank you very much.

You gave us something to work with. You put a lot of time and serious effort into this. It will be very helpful. I will say to you that because the bill was sent to us after first reading, it gives us more opportunity to make more amendments. This committee works well as a team, and we'll have discussions. You have given us a lot to discuss, and I'm sure something good will come out of it.

Mr. Vellacott, for five minutes.

Vellacott, Maurice Vice-Chair : Thank you, Mr. Chair.

You were very thorough in a lot of areas, Chief. Are you a chief?

Vice-Chief Herb George Satsan: Yes. My name is Satsan, as you see on the bottom of my card. I'm one of the hereditary chiefs of the Wet’suwet’en Nation.

Vellacott, Maurice Vice-Chair : Okay.

You've covered off a number of areas very thoroughly and precisely, and I think very helpfully for the committee by way of your written submission as well.

I want to move to some other areas that I'm puzzled about. As we've talked with first nations people, they have raised some issues with some of us in personal and private conversations in the area of accounting for all band funds, not simply money received from the federal government. You're no doubt aware of the Montana case.

My question is, do bands find that they need to more and more, as they have resources--oil and gas or whatever the resource happens to be--move to an almost corporate model? This is a question that has come from first nations people to me in the last days, and before, on a personal and private level.

I was assuming that for those entities the band sets up, the corporations and so on, they are providing at least some level of statement to their band members--not necessarily outside, but to their band members. Now, I've been given to understand this is not necessarily the case, and I gather, in all fairness, it's because of not wanting to expose their competitive position in some of these enterprises they're involved in.

I guess it varies around the country, but how do we address that? When we have a level of government that is involved in a lot of different enterprises here, the band members, first nations members, want to know and have access to that. In some sense, if they don't, there's always that perception that maybe there's something they're not telling them that they should know about.

I'm sure you've thought about that. How do you deal with that? It's different from other forms of government in some respects. To give the accounting but not expose your competitive position, how do you address that?

Vice-Chief Herb George Satsan: I think one of the ways we need to address that is, as we recommended, under the section dealing with financial management and accountability, reporting of financial information to band members. The issue here is the accountability and transparency regarding moneys that are transferred from the federal government to the bands. Certainly, no one has a problem with that.

Regarding the band's own corporate affairs, I think case law is pretty clear on that in Canada. No corporation has to post its monthly financial statements for the general public to see, or for anybody else to see.

I think if we're looking at the objectives that we put forward in terms of this section, I don't see any reason the band can't, in trying to meet those objectives, build in something in terms of reporting to their membership, as opposed to having to put this information forward on a website for the entire public to see.

Vellacott, Maurice Vice-Chair : I guess that's my question. I do want to urge you; I think it needs to be addressed. I'm sure you've thought about and worked on it. There are maybe already ways it's done.

But as I hear from first nations people, they want it, yet you're caught in a very difficult situation, I understand. These are in effect shareholders, if you will, so they require that, and I think there's a responsibility for a certain level of reporting. But how to get the balance right is the thing. They believe, and rightly so, that some of the benefits, if there are profits, should come into their lives in some way, through health, education, or individual payments, however.

I guess I just want some response, some reassurance, because I've had band members say it's a move to the corporate model and they want to know. It's not a matter of reporting outside, but how do they get the information? In some cases, I report to you, Chief, they feel it hasn't been forthcoming; it hasn't been provided. There is a variety of circumstances, I suppose, for that.

I just want to share that, because I think, as you get hold of your resources and work into the future, it'll be increasingly an area to address.

Thank you.

Á (1115)

Vice-Chief Herb George Satsan: Thank you.

The Chair: Mr. Martin is next, for five minutes.

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

Thanks to all of you for a very comprehensive and useful document. I used up my whole highlighter underlining things. I felt like I was at a bingo game or something.

This is going to be very helpful to all of us. They're the first really concrete recommendations for actual language changes we've had. Most of the presentations have been more general statements on dissatisfaction with the bill. You're proposing real amendments here.

It's a great honour for all of us to meet Judge Alfred Scow, whose career we've followed for many years. In the few minutes we have, I would ask Judge Alfred Scow to share his thoughts and comments on the bill in general and the importance of these amendments being made.

Vice-Chief Herb George Satsan: Excuse me, Mr. Chair. I appreciate your gesture.

Judge Scow is sitting with us here today. I've invited him along. He's also an important hereditary chief of his people. He was the first aboriginal person in British Columbia to go through law school and become a lawyer. Later on he was appointed a judge in British Columbia.

Judge Scow is with us and will be making the closing comments regarding our presentation, so you will hear from him at that time.

The Chair: It's a privilege deserving of a person who has received the Order of Canada also.

Mr. Martin.

Mr. Pat Martin: In that case, perhaps I could use my time on more specifics.

You made a point--as did most people who have made presentations--about the importance of a non-derogation clause. You also recommended that it be reaffirmed in places throughout the document. Would you expand, in your own words, on the importance of that and the message it would send if we're going to build confidence amongst people with this bill?

Vice-Chief Herb George Satsan: If you go back to the presentation Jim Aldridge made to you, he made the point that the minister, in giving his marching orders to them, said this would not infringe upon aboriginal or treaty rights. In the political rhetoric and in the letters you sent around, he also made that commitment to aboriginal people generally across the country.

Then we saw the bill finally and realized it did not contain any language that would give us comfort that this was not intended to infringe upon our aboriginal or treaty rights. As I said earlier, we didn't have the proper opportunity to be involved in what ultimately came out as Bill C-7. We need to take this opportunity now to impress upon you the importance of adding a non-derogation clause to the bill, not only to address the issue we have here but to show our people that the intention is not to infringe.

The point of it, especially for us here in British Columbia, is that many of our people are involved in negotiations around self-government and our inherent right, and we feel that this bill should have nothing to say or do about that. So that's one of the major issues for the chiefs in our province.

It's not enough for them to just say it's not going to infringe; we want to see a commitment. We want to see the language contained within the bill itself. If we don't see that, then I guess we can assume that maybe the bill is intended to infringe.

Á (1120)

Mr. Pat Martin: Thank you.

Do I have one more minute?

The Chair: You have two. I took one, so I'm giving you an extra one.

Mr. Pat Martin: Aren't you good. Thank you.

I guess then these are really meaningful amendments. I would be proud to put them forward when the time comes in this committee. My experience has been that in standing committees amendments rarely get passed. In the likelihood that most of these amendments do not succeed, what will be your position? What will be your strategy if Bill C-7 gets passed virtually unamended? Could I have your views on that?

Vice-Chief Herb George Satsan: The general feeling of our people and our leadership regarding Bill C-7 is first that the whole issue of trust has been battered. Number two, we feel that proper consultation wasn't done, and there's a real sense of cynicism about this. The feeling in my community is that it doesn't matter what we say, the government will go right ahead and do what it wants to do.

What I've brought forward is to say that may be the case, but we have to take the opportunity to try to positively affect the outcome and the final form of Bill C-7. It's in that spirit that we've put this work forward and put so much time and effort into it.

We're counting on you, as a committee, to not only impress upon the government but hopefully impose your will to bring forward the amendments we are seeking and the changes we need to see. If we don't have that, I guess the mistrust we have and the cynicism out there are right. I hope that isn't the case.

The Chair: Thank you.

[Translation]

Mr. Binet.

Mr. Gérard Binet: Thank you, Mr. Chairman.

Good morning to you all. I wish to commend you for your presentation. As a preliminary, I would like to say that I come from Quebec and that there are no longer any aboriginal communities in my area.

My point of view on this Bill is therefore slightly different from the point of view of my colleagues. I have sat on this Committee for two years and I have heard all kinds of statements. However, what I've heard today was quite encouraging. Before I became a Member of Parliament, I was the mayor of a city. As a mayor, you develop a close relationships with the people. In those days, I merged four communities. It was a rather unique exercise.

My question is to some extent related to that experience. You represent one third of the communities, some of which include 100, 200 or 300 people. Clearly, for some of those communities, the issue of the codes will be quite complex. Do you expect many of those communities to opt for the default code? Will you make sure that everyone will be well represented so that no one will be forced into doing that?

Á (1125)

[English]

Vice-Chief Herb George Satsan: Thank you very much for your question.

We raised the issue of cost in the summit presentation earlier on. We feel that cost in terms of the code is a significant factor and that it needs to be addressed. We also feel that we need to look at the issue of cost in terms of the institutions that are being proposed to deal with the proposed amendments. That cost has not been talked about, and we feel that it needs to be.

There's no question that the development of a code and the cost of it are going to have an impact on small communities. I live in a small community called Hagwilget. It's less than three-quarters of a square mile in area. When I relate what's going on here to my community and listen to the minister saying that this is going to help me in terms of economic development and so on, and then I look at the community I live in having no resources and being stretched to the limit, I say, how can this be? It doesn't make any sense. It definitely will have an impact on my community. The fear we have is that default codes will be imposed on those communities. That's one of the reasons we feel that the time period should be extended to three years rather than two.

We need to impress upon the committee that the government needs to commit the necessary funds to implement the amendments that are being put forward. We need to see a real commitment of new dollars to do this. One of the things we fear is that the dollars required to implement the amendments will be levered out of dollars that already exist. We don't have any comfort that the issue of dollars is going to be addressed in a meaningful way.

The Chair: Merci, Monsieur Binet.

We can do a three-minute round.

Mr. Elley.

Mr. Reed Elley: Thank you very much, Mr. Chair.

I'm concerned about the inclusion of gaming in the submission you've brought before us. Personally, I have a lot of grave concerns about the proliferation of gambling in our society, because I think that in the end it's very harmful to people of low income. You have the high rollers and the low-income people who tend to frequent gambling establishments. I would urge you to reconsider that as a serious source of revenue for native people in Canada. It's not socially acceptable, from my point of view.

Beyond that, I'm wondering why you would include that in a federal statute when it's really a provincial responsibility.

Vice-Chief Herb George Satsan: We always get asked that question. When we're talking to the province, they say we're a federal responsibility. When we're talking to Canada, they say we're a provincial responsibility.

I think the point is that we're talking about governance powers. Whether or not you like how I exercise my power to govern myself is beside the point, in my view. The decision should be left to me as to whether I deem it good or bad to raise money through gambling. I appreciate your concern.

This is the precise problem with this bill. We're being told that this is going to be good for us, this is best for us, and this is going to do all these things for us, but we really haven't had the opportunity to step forward and offer what's important for our people.

So my answer to you is that I don't really care whether you like it or not.

Á (1130)

The Chair: Mr. Martin.

Mr. Pat Martin: Thank you.

I notice that you are an associate professor at the University of Victoria, and that in your role as vice-chief you hold the executive portfolio for fiscal relations for the Assembly of First Nations. I have a long, long list here from your biography, but my point is that you're clearly a leading authority on this subject in the country. It's been your life's work and study.

My friend Moses Okimah from Manitoba said to me one time, “The biggest mistake they ever made was to let guys like me go to university”. Likewise, you have come forward with real practical solutions.

My point is that even though you are an authority on the subject, you were not involved in the development of Bill C-7. Notwithstanding the good work you've done, can you again speak about the flaws in the process of leaving out the very people who know the most about this subject in the country? Would you like to comment further on the process that left people like you out of the decision-making process that put the package together?

Vice-Chief Herb George Satsan: I think we have to keep in mind the dilemma we face, that notwithstanding the fact that the consultation was not done properly and that we're now before you talking about what we think about the proposed amendments, the bill is probably going to go through and we might not get amendments, as the chair mentioned. So it really is a moot point to dwell on the fact that this wasn't done properly. We all know it wasn't done properly. We have to come before you and hope that you will pay attention to our issues and concerns, take our options and recommendations seriously, and hope that we can see those amendments.

It's a tough situation to be here talking about trying to deal with this bill when there are so many problems with it. But the fact of the matter is that in our communities and amongst our leadership, we don't have any problem with better financial accountability, transparency, and administration. So I think we have to focus on that.

The Chair: Thank you very much.

Mr. Hubbard, for three minutes.

Mr. Charles Hubbard: Thank you, Mr. Chair, and welcome, Chief. Thank you for coming to talk about the bill with us.

I can only make a brief statement. I'm very impressed with the work you've put into this. I know that we all realize, as members of this committee, that the House sent us a bill to consider, and it will take us time to analyze what you've put before the committee.

We are people in between. Justice Canada and DIAND have prepared a bill that we've been asked to review, to make input into, and to get amendments for. It's certainly a long process. I want to assure you, Chief, that whatever comes from this, we members want it to be in the best interests not only of Canada as a whole but, more specifically, of your own people as well.

I'm sure the chair will insist that your input be very carefully analyzed by all of us. We especially want to hear back from the people who wrote this bill, to see and make comparisons, and hopefully as a group we can come up with the best suggestions for everyone.

So thank you very much for coming. I'm very impressed to see the analysis you've done. I guess Mr. Martin has indicated what a very dedicated, enthusiastic and well-educated group we have with us today. A former judge is here, and you are a university professor, so I'm sure we all know from your biographies how important all of you are. We're merely humble servants of the people of Canada, and when the end result comes, it may not please us or please everyone. But hopefully it will be in the best interests in the interim, as you say, of working towards self-government and a better relationship between and cooperation among all the peoples in our great nation.

Thank you, Mr. Chair.

Á (1135)

The Chair: Thank you, Mr. Hubbard.

We have seven or eight minutes for closing remarks, and you may use that time as you wish.

Vice-Chief Herb George Satsan: I just want to address a couple of points that were raised.

The Chair: You can do that and then forward to closing remarks.

Vice-Chief Herb George Satsan: Yes, and then I'll turn the time over to Judge Scow.

First of all, in terms of your point that this is in the best interests of our people, I really take exception to that, given the fact that our people weren't there to represent their own interests. It's a well-known fact that any organization, be it a gang, a hockey team, a church, or a government, is set up to accomplish something or to do something, and if you use a structure set up to sell cars in order to produce lumber, it just doesn't work.

It brings me to the point of appropriate structure, structure that respects and comes from what we want to achieve for ourselves, not what somebody else thinks is in our best interests. That's the fundamental flaw here, and all we're trying to do is to offer language to try to positively affect it as much as we can, given the fact that in our view it's an interim step. I'm glad to hear that you recognize the interim nature of it, because the interim nature of it is very, very important to us.

I just had to address that because I get sick and tired of hearing that somehow we're your Indians and that you can decide what's best for us. We're perfectly capable of deciding that for ourselves, and the sooner we can see our way free of the bloody Indian Act, the better off we'll all be.

I want to at this time--

The Chair: If I may, Chief, I concur with what you said, but I try to keep the members in line when they speak out of line and I try to defend them when I feel that their sentiment may not have been understood properly.

You said that the Parliament of Canada doesn't recognize.... We are a committee of the House of Commons, and we have been directed by the House to do the job in spite of the correct things you have said. I share the feeling Mr. Hubbard expresses and I'm sure every member does, but in spite of all that we're going to do the best we can because we do care for your people.

That's the way I understood it and that's the way I feel, anyway. I don't dispute your comments.

Please continue.

Vice-Chief Herb George Satsan: We would appreciate seeing that in the bill.

I'd like at this time to turn the microphone over to Judge Alfred Scow, who has been involved with us in the work we presented to you. I'd like to give him the time to make some closing comments.

Mr. Alfred Scow (Assembly of First Nations): Thank you, Mr. Chairman and Herb--Satsan.

I can tell the committee, as I told Herb some time ago, that when I read Bill C-7 I was very discouraged, because my gut reaction was that there would be continuing control and imposition of things on our people. I spoke to Herb about whether there was any way we could discourage the passage of the bill so we could eventually lead into having some say in how we were going to be governed. Herb persuaded me that according to his understanding, the minister and the Government of Canada had every intention of passing the First Nations Governance Act. In further conversations with Herb, we decided that this was our opportunity to try to persuade the committee that some changes needed to be made.

I say to the committee that there is nothing I can add to what the Assembly of First Nations has presented to you, but what I have is this. Philosophically, I have observed that the courts and the government have had a real difficulty in acknowledging the fact that we were here first, that we governed ourselves first, before the Indian Act was ever put into force, and that given sufficient time, we can do it again.

However, I see this process as an opportunity for the committee to persuade the government that these modifications are not a challenge to its authority. The modifications we are proposing are a way the government can gradually bring about a change for the benefit of Canada as a whole as well as for first nations people by modifying the language of Bill C-7. I strongly urge the committee to think about the fact that we do have a real stake in this. We have been used to having things imposed upon us. We're saying that we're taking this opportunity now to be part of at least the first small step in making changes that will give us some sense of our values, goals, and objectives being acknowledged by the Government of Canada.

I really appreciate this opportunity to say a few words to you, because I no longer think anything can be achieved by totally opposing Bill C-7. I see this as an opportunity for all of us to benefit Canada as a whole in the long run, because our objective is to become, hopefully, self-sufficient as well as self-governing.

Thank you very much.

Á (1140)

The Chair: Thank you very much, Your Honour. If anyone here understands the work we're doing, I'm sure you do, because you have had to interpret what people like us do. We're not perfect, and you'll be the first to attest to that.

There is no one on this committee, no one I have met, who thinks that the Indian Act is a good piece of legislation. It is not. It's archaic, it's flawed, and there were alleged intents of assimilation and different things in there--allegations that I concur with. What we are trying to do is make it a little bit better, so we can move on to what you speak of and eventually eliminate that piece of legislation.

To you, Chief, your dreams for your children and your grandchildren are the same as my dreams for my children and my grandchildren. I believe you have the same rights to fulfill your dreams, but I do know that it is harder for you than it is for me. What we're trying to do is to eliminate those barriers.

Thank you very much.

I invite to the table, from the University of Victoria, Dr. Frank Cassidy, associate professor with the School of Public Administration.

Dr. Cassidy, we have allowed for 45 minutes, whereas with the rules we had set out an individual's time is 10 minutes. We committed, so we will stick to it, but if we finish in half an hour, no one will be disappointed.

Á (1145)

Dr. Frank Cassidy (Associate Professor, School of Public Administration, University of Victoria): Getting anxious for lunch, eh?

The Chair: No, it's a matter of fairness, because we're going to be doing three more weeks of this, and I'm just trying to standardize everything. But if you need 45 minutes, we committed. We'll honour that.

Dr. Frank Cassidy: Okay, thank you very much.

I'd like to acknowledge the Snuneymuxw Nation, being on their territory this morning. I'd like to thank the committee for giving me this opportunity to talk with you today.

I've been thinking about how I'd like to start my presentation. I changed gears a bit when Judge Scow was speaking. because it brought me back to a day almost 30 years ago. As a very young professor at Simon Fraser University, I had decided to move to the northern part of the province, to the Gitksan territories, a place called Kispiox.

When I was up there getting things ready, I had met the chief of the Kispiox Band and some of the other people from the band council. One day he gave me a call and he said, “The principal of our school is leaving and we've met you, we like you. Would you like to become principal of our school?” I didn't have a job--I was leaving a job--and it sounded very exciting. We talked more about it and I agreed with him that I would if they would accept me. So he told me to call the Department of Indian Affairs and get an application.

I called the Department of Indian Affairs and I spoke to one person, then I spoke to another person, then I spoke to another person, and then I spoke to another person, and finally the fourth person I spoke to said they couldn't give me an application. I asked him why. I guess I was naive. I told him the chief said that the arrangement with the department was that they were going to get to select this principal because of the problems with regard to the previous principal. He said they couldn't do that because they already had one of their own people earmarked for the position.

I never did get an application, and we did appeal all the way to the Minister of Indian Affairs at the time, who was Jean Chrétien. On a technicality--even though I had a doctoral degree from Stanford University, I didn't have a teaching certificate--I wasn't allowed to be a candidate. I might say there was only one teacher at the school that year who had a teaching certificate. Everyone else was given the waiver that we sought for me.

The reason I'm telling you this is that there is a long culture that I've experienced over the time I've worked with first nations and over the time I've done research for the royal commission and worked with the Institute for Research on Public Policy and done research myself as a professor at the University of Victoria, whereby the federal government tells first nations what's good for them and essentially assumes that it knows how first nations people should conduct their lives.

I think the unfortunate thing about the bill as it's currently drafted is that to too large an extent it reflects this tradition of telling first nations people what's good for them. What I'd like to do today is to go through some of the passages of the bill and talk with you about how that's manifested.

I'd like to go right to the purposes of the bill, clause 3. Paragraph 3(a) says the bill is “to provide bands with more effective tools of governance” as an interim measure, or an interim step, towards self-government. Now, that I think is a good notion. The minister has used the term, “bridge”, and what paragraph (a) gives us is a principle to interpret each and every clause of this bill. The principle is, does this bill build towards self-government? Is this bill a bridge to self-government? That's a good question and a good principle to ask.

Á (1150)

However, when we go to paragraph 3(c) and we look at the third purpose, we find out that it's “to enable bands to design and implement their own regimes in respect of leadership selection, administration of government and financial management and accountability”, which is fine, but then it says “while providing rules for those bands that choose not to do so”. I ask you what providing rules for people about how they will conduct the basic machinery of their government has to do with self-government. It seems to me if you're going to impose rules on somebody, that's not self-government. That's the opposite of self-government.

So there's a contradiction in the purposes of this bill. That contradiction goes throughout the bill. I think it can be corrected, and it is sincerely my hope that this committee will make those corrections. But that contradiction has to be addressed.

If you go to the preamble of the bill, you'll see, as Vice-Chief Satsan indicated, there's a recognition of Canadian values of governance, but nowhere is there a recognition that first nations have governance values. Now, I ask you this. If we're building toward self-government, mustn't we have respect for first nations and shouldn't we respect the fact that first nations have a long history of governing themselves? That's partially why the inherent right of self-government is protected in the Constitution, because it's based upon aboriginal laws, aboriginal practices, and aboriginal customs of governance. That right is acknowledged and recognized by the federal government. But those values are not explicitly identified. Canadian values are. The implication is that there are no first nations values, and that's something that really needs to be dealt with.

If we move to clauses 4, 5, and 6 of the bill and other clauses, we see that the intent is to outline what codes will look like for leadership selection, accountability, and administration. Basically first nations are told they have two years to develop these codes, and if they don't develop them, default codes, which they don't see right now, will be imposed upon them. That doesn't sound to me like self-government. To impose a code on a first nation about how it will conduct the basic machinery of its government doesn't sound like self-government. It sounds like something that's going in the opposite direction from self-government.

In 1995, as I'm sure all of you are aware, the federal government published its inherent right policy. In that policy it said that the cornerstone of its policy was the recognition of the inherent right of self-government and the negotiation of the implementation of that right. What we see here in the bill is that the very items to be negotiated are now being legislated, and first nations are being told they will quite possibly be enforced upon them. Again there seems to be a basic contradiction between federal policy and this legislation as presented.

If we go to clause 10 and clause 32, we see that the minister's powers are either confirmed or in fact extended. In clause 10 the minister has very extensive powers to get involved with the financial affairs of the bands. In clause 32 the minister is the final arbiter if there are any appeals concerning leadership selection.

Now, there may be a need to provide assistance to some first nations with regard to the management of their financial affairs, but the model that says the minister will be the vehicle for that assistance is not a model that's based upon self-government. That's the Indian Act model, the model that was designed in the 1870s. Why are we going back to the Indian Act model in a piece of legislation that is intended to be an interim step to self-government? Why are we confirming and extending the powers of the minister? That doesn't sound like self-government. That sounds like a step away from self-government.

Á (1155)

Then we go to clauses 15, 16, and 17, and here the powers of bands are outlined. I heard several questions this morning as I was sitting and listening about the consultation process. I've followed the consultation process very carefully. I think it's fair to say I've pretty well read everything that the Minister of Indian Affairs has said regarding this bill over the last two years. He made it clear, explicitly at times, that this is not a process about powers. He never indicated that the bill would delineate the powers of first nations.

Now, why is that the case? Because if you go back to the 1995 policy--this is the inherent right policy--you'll find it's all about the negotiation of powers. It lays out all sorts of guidelines about how powers will be negotiated. Suddenly, without any prior announcement, we have a piece of draft legislation that delineates the powers of bands.

If there's anything that should be the basis for self-government negotiations, you would think it would be the powers of first nations. But here we have the powers of first nations being outlined without any real prior consultation with them on the method in which they're being addressed here.

That doesn't sound like self-government, the implementation of the inherent right, negotiations with first nations, or mutually consensual agreements. That sounds like a legislative approach whereby a solution that has been determined by the Government of Canada is imposed on first nations. That's the Indian Act approach. That's not the self-government approach. That's not the approach the federal government said, in 1995, it was going to follow.

Now I'll just talk about two more clauses and then make a few concluding remarks.

I don't know how closely you've looked at clause 34. I find it very scary. It says the governor in council may, for a period of two years--the arbitrary period that has been invented in the bill until the imposition of default codes if bands don't do their own codes--decide which first nations are exempted from having default codes and for how long.

So in this bill the governor in council has the power to determine which first nations will negotiate self-government, how long they'll negotiate self-government, and under what conditions they'll negotiate self-government. That doesn't sound like self-government. That sounds like the Government of Canada saying, we already have our own person and our own process selected for you. That's a really serious flaw in this bill.

Clause 35 mentions a number of acts that exempt various first nations from the application of this legislation. But nothing there says that first nations that negotiate self-government in the future will be exempted from this act. Is the substance of self-government being legislated even before negotiations take place? If you read the bill the way it's drafted now, that's what it says. Maybe there's been a drafting error here or there, but those errors should be cleared up, because that's what the bill implies.

What are we doing in 2003 with a piece of legislation by a government that in 1995 repeated the commitment it made to self-government during the Charlottetown accord? What do we do with a government that now says it's going to determine who can negotiate, how long they can negotiate, and under what circumstances they can negotiate? That doesn't sound like self-government.

Finally we get to proposed section 36, which actually empowers the Crown to impose default codes. Why does the Crown want the power to impose default codes? Does the Crown actually think that first nations people aren't concerned about good procedures for selecting leaders, that first nations people aren't concerned about good administration, that first nations people aren't concerned about accountability?

Moving toward self-government is all about trust. If the Crown trusted first nations, it wouldn't have to impose default codes. It would simply say, here's a helpful piece of legislation to enable you to get on with things. We trust you and we'd like you to trust us. That mutual trust would be the basis for self-government.

Â (1200)

What we have here is a clear statement--and it makes me really sorry to say this--of mistrust, distrust. It isn't a statement of trust. If this were a statement of trust, it would be offered as a helping hand, and not as something that would be clamping on the wrist of first nations.

I'd like to make just a couple of comments in closing. We're all aware that there has been a log-jam with respect to self-government, there's no question about it--1995, 2003, a lot of money expended. We have one agreement that reflects the inherent right policy in British Columbia, and that's the Nisga'a treaty. Otherwise, across the country there are some agreements being negotiated. We always hear they're going to be finalized in the next three months or six months, but then we hear three to six months down the line that it's three months or six months more. There is a log-jam.

I think the notion of legislation as a way of breaking through this is not a bad notion. But this legislation, as I've tried to show you, is legislation that won't break through this log-jam. This legislation needs to be seriously reconsidered.

I know the procedures of Parliament and I've heard what your members have said about bills going through and sometimes not even being amended. But you're our elected representatives. You are the legislative arm of government, and this is a piece of legislation. We need you to look at this legislation and make sure it's built upon trust—that it's fair.

It's my hope that this committee will really take a strong look at this legislation. It's not impossible to change it to make it respectful and positive legislation. I hope, and I think a lot of people hope, that this committee will be able to do something really positive with this legislation. What we need to do is build a bridge to the future, a bridge to self-government, but that bridge to the future cannot be based upon a mentality that reflects the past, that says “we know what's best for you”. Unfortunately, the way this legislation is written right now, to too great an extent it reflects that mentality.

Thank you very much.

The Chair: Thank you.

Before I proceed to questions, I will at least put on record the effort this committee is making. The members are taking this very seriously. We spent three months last spring just getting educated on it. We invited the experts, the chiefs, the national chiefs—you name it. Now we're putting in nine weeks almost full-time.

I'm not saying that's more than it deserves. It maybe deserves more than we're doing, but in the lives of sixteen members of Parliament, nine weeks is a lot. We do take it seriously, and we welcome your comments. They will be very helpful.

We'll have a four-minute round. Mr. Vellacott.

Vellacott, Maurice Vice-Chair : Thank you very much, Professor.

You made points early on and consistently throughout about this not being self-government, and I respectfully accept that. Within the bill, provisions can be pointed to allowing for individuals within bands or the councils to come up with a code. Would you agree it's in effect moving in the direction—transitional as it is, and as an interim measure—to some self-governing by way of putting those things in place? If in fact some by choice—or maybe because they run out of time, and that would be most unfortunate—say they'll go with the default codes, can you accept that some might at this point be saying they're not ready for self-government yet and are willing to have some hopefully not-too-onerous, but basic, minimal codes? Is that something you could accept?

Â (1205)

Dr. Frank Cassidy: Well, I think first of all it's what first nations could accept. But from my knowledge of first nations, yes, some first nations would probably not want to expend the resources and the time. They would have other things. They'd want to address education in their communities, housing in their communities, and this is going to be very time-consuming.

So I would see some first nations possibly saying they would accept a default code. But that default code would have to be designed in a very different way from the way this legislation was designed. That default code would have to be designed with full first nations participation and agreement. It would have to recognize and reflect the values of first nations. So I think, under those circumstances--

Vellacott, Maurice Vice-Chair : I certainly agree with that. Our party, the Canadian Alliance, has been nervous about there being no default code there, and not knowing, but at this point we accept the word of the minister that there will be consultation and involvement, and certainly we want to hold him to that over the course of time.

The other question I have here specifically to you in your role as a Canadian non-aboriginal or non-first-nation citizen is, what is your sense among the first nations communities, and even from your individual perspective concerning the repeal of section 67 of the Canadian Human Rights Act, that would allow members for the first time supposedly to lodge complaints under the CHRA against council activities or policies based on the Indian Act...? Can you give us some sense of whether you think this is a good move, or is it just too much a colonial imposition again?

Also, you know the provision is not total; it still can be trumped by customs and culture and those kinds of things. But do you see it as a move forward, this CHRA ruling that it is possible to extend section 67 to all Canadian citizens, aboriginal people as well?

Dr. Frank Cassidy: I think it's something that bears discussion. My experience in first nations communities is that there is a general respect for the personal, human, civil, and political rights of people. I think, presented in the right way, this well could be a basis for agreement. I think the problem simply is that the implication is somehow or another that this has to be imposed on first nations, that they won't simply accept it themselves, and I think that's a sad implication.

But I don't see anything wrong with it, because there are protections in the Constitution. Section 25, for example, makes sure that nothing in the Charter of Rights and Freedoms will derogate from aboriginal or treaty rights. There are various protections in the Constitution; therefore, I don't see anything wrong with it. There are many things in the bill that, as far as they go as notions or ideas, have nothing wrong with them. It's just that the way in which it's being done is very different from what you would expect in this day and age.

The Chair: Mr. Martin.

Mr. Pat Martin: Thank you, Dr. Cassidy, for many useful points. Given the limitation of time, I'm just going to focus on one dealing with clauses 7 to 9, on financial management and accountability. I think you made the point that Bill C-7 will hold first nations to an unreasonable level of accountability and that virtually any individual could demand to know everything about all of the financial dealings of the first nation—not just the federal government money that might be transferred through contributions but their own private assets, their own private enterprises.

First, do you think that's an invasion of privacy, if you will? Second, do you see it could even be a disadvantage in terms of the competitive nature of a private business that the band might be running, if their competition can demand to know and be entitled to know every aspect of their financial dealings? Could you comment on that?

Â (1210)

Dr. Frank Cassidy: Yes, I think parts of clauses 7 to 9 are definitely an invasion of privacy. They are going to be a barrier to economic development. Again, what should be in this bill is provisions to make sure that first nations governments are accountable to first nations people, not that they have to broadcast their affairs all over the place unlike any other government in Canada.

You have one member of your committee, or maybe more, who's been a mayor. Municipalities aren't subject to this kind of regulation. Why do we have first nations being subject to this kind of regulation? I can only come back to the fact that it seems to be a matter of distrust, that somehow you can't trust first nations to govern their own affairs.

Well, if the Government of Canada doesn't trust first nations, I guess that informs us about what we know about its commitment to the self-government policy, and maybe that can tell us why we have no self-government agreements after eight years. Sometimes the allegation is that it's first nations that are incapable of negotiating self-government. Maybe it's the federal government that doesn't trust first nations and is responsible for the absence of self-government negotiations, and what we see here is the imposition and the continued existence of that type of mentality.

That's again a disturbing part of the legislation. It doesn't really have to be there. We need to get on with respecting each other and normalizing our relationship. We don't need to put all sorts of odd and weird frameworks on first nations people.

Mr. Pat Martin: I'd also like to comment on one point you made to the effect that some clauses, I think you cited clauses 10 and 32, actually augment or enhance the minister's exclusive authority rather than cede real authority to first nations. You pointed out that this seems to be a backwards trend if we're looking at genuine--

Dr. Frank Cassidy: You are probably aware that there was considerable attention as the bill was being drafted and beforehand to this notion of independent institutions and that there would be independent institutions to facilitate self-government. If you're not aware of that, I could certainly provide you with more information about that, and I'm sure some of your staff could. There are significant portions of the JMAC report--I believe there is a chapter--devoted to independent institutions.

I don't know why we have the minister being the final arbiter with regard to the selection of leaders in first nations. It's an approach that is totally out of balance with the notion of self-government.

I just wanted to bring that back to the previous question about default regulations. We have to approach the issue of default regulations in light of the approach that was taken before this committee became active with regard to consultation. The consultation process was a very flawed process. Thank God for this committee. This is what the federal government should have been doing for the previous two years: coming out, going across the country, and talking with people. I know the federal government says it was doing that, but unfortunately there wasn't the type of dialogue that should have taken place.

The Chair: Thank you.

Mr. Hubbard.

Mr. Charles Hubbard: Thank you.

Dr. Cassidy, I'm really impressed with your background. You speak of the bill almost better than we do because you know it clause-by-clause so well, and that's really impressive.

With respect to the consultation process, did you as an individual participate in any way in the various consultations that were held with different groups across Canada?

Dr. Frank Cassidy: No, and that bewildered me a bit because I was the person who was in charge of the research of the Royal Commission on Aboriginal Peoples with regard to aboriginal governance as well as the international dimensions of aboriginal governance. My opinion wasn't asked for on this bill. I did attend one meeting, which was supposed to be an information meeting, as a guest of somebody else who was invited. It was made very clear at that meeting by several of the first nations participants that this was not consultation. I believe, but I'm not 100% sure, it was presented as a consultation afterward.

I think there are a number of other people in the academic community who have put a lot of effort into researching the matter of first nations governance. Again, I don't think there was heck of a lot of discussion with them.

Certainly, we could have come up with ways in which to have conferences, round tables, and sessions where people could have come and discussed these approaches. This consultation process was very controlled by the federal government, and I'm sure some of you have seen the February 2001 consultation strategy.

The day I saw that strategy, which was not long before it was put out just as an internal document, it was very clear that this consultation process was going to be a consultation process, but that it lacked something that's really important in a consultation process; that is, consultation is only meaningful if it perceives accommodation. I ask you, why it is we have a bill that reflects exactly what the Minister of Indian Affairs and Northern Development said in February 2001, without any change? What type of meaningful consultation took place? Obviously, there has been no accommodation. Therefore, there has been no meaningful consultation.

Â (1215)

Mr. Charles Hubbard: In the House we have frequent interventions in terms of various first nations that have economic and financial difficulties. We talk about third-party management, we talk about co-management, and we talk about a lot of different issues. It appears, Mr. Chair, that when there are problems, when the school board in Skeena, for example, is not receiving its so-called educational payments, then they get back to the minister in the House and ask why the minister doesn't intervene.

This particular bill does, hopefully, provide a framework. It talks about budgets. It talks about trying to do accounting. It tries to talk about providing a system of accountability and help. What would your comments be on how the minister and how Parliament and so forth can look at the problems first nations sometimes encounter in terms of third-party management or co-management?

It's very frustrating for me to see a chief and council losing control of the financial resources of their reserve. Would you like to comment on that in terms of this bill?

Dr. Frank Cassidy: Again, I think the approach here is wrong.

If you were having problems with your finances, what would you think if somebody designated themselves as having the ability to come in to look at all of your records, at all of your cheques, and at all of your financial situation, and then to tell you what to do with them? Would this be a normal way of doing things? This is what is being established in this bill—the minister can come in at one point and just take over the financial affairs of a band. It is not the Canadian way of helping people by taking over their lives.

The best way to approach things in this bill would be to think of something like an independent institution, for example, which would be there to assist first nations upon their request--so we have ways of doing this. We have a federal system. We don't have a system where Alberta can say, “Oh, look at British Columbia, it's now a have-not province. So let's go in there and take their books, and let's make sure we run their finances”. Why should the first nations be subject to this with the federal government? When you begin to think about it, what are we saying here?

The Chair: Thank you.

You have eight minutes left for closing remarks, for a total of 45 minutes.

Okay?

Dr. Frank Cassidy: Well, I don't have a lot to say, because I know you're hungry.

The Chair: I went to university later in life, at 26, and I took time and graduated at 40. I don't believe that you're not going to take the eight minutes.

Vellacott, Maurice Vice-Chair : Is there a possibility of having a one-minute round of questions?

Dr. Frank Cassidy: That would be fine with me for my eight minutes.

The Chair: Okay. Each party may have a one-minute question, but no answer until you incorporate it into your closing remarks.

Mr. Vellacott.

Â (1220)

Vellacott, Maurice Vice-Chair : I'd appreciate your comments on the corporate models many bands have to take on now because of the resources and so on. In reference to your question, there is a law in Canada on bankruptcy protection. Municipalities can run deficits. We hope some day provincial and federal governments will have that same kind of legislation. So I differ with you on that because there are ways it's dealt with in a bankruptcy protection kind of scenario.

Our salaries are all public knowledge here. Crown corporations have to report to the public, and the salaries of mayors, premiers, and so on are publicly available. Will you not have a way of doing that within first nations? You can honour their background and so on, but have that public accounting.

The Chair: Mr. Martin is next for one minute.

Mr. Pat Martin: I can't do much with a minute, but on this whole suite of legislation, Bill C-6, Bill C-7, and Bill C-19, some have raised the point that it's leaning toward the municipalization or the incorporation of communities, and the municipalization issue has some inherent risks associated with it. So if you have time, maybe you could comment briefly on that.

The Chair: Thank you.

The remainder of the time is yours.

Dr. Frank Cassidy: I do think we have to be aware of our vision for first nations self-government in Canada. That vision has to have a couple of different dimensions to it. One is that we are talking about governments that are in Canada. It's fair to say there are some standards that apply to everybody across the country that help make this a country.

Having said that, another important dimension, a necessary dimension of first nations self-government, is that it is first nations self-government. Our Constitution clearly recognizes that first nations were here before Canada came about, that first nations have a unique legal and political status in Canada. First nations governance also has to reflect that unique legal and political status.

We have to somehow find a balance between the Canadian nature of first nations governance and the first nations nature of first nations governance. I think we can do that. It isn't easy. I think we can do that through negotiation, through dialogue, through talking with each other, to arriving at agreements.

Now, we haven't been very successful in doing that to date. I think the question to ask is, why haven't we been successful, and how can we do it better? When I look at this piece of legislation, I almost feel like the federal government is giving up already. It's saying oh, it's too frustrating. We've lost patience. We don't trust first nations. Let's just legislate a lot of what we intended to negotiate.

In the 1995 policy there are several different lists of things to be negotiated, three in particular--one that says this is where first nations will pretty much have power to determine what happens, another that says there'll be some sharing, and another that says that on things like foreign affairs first nations really won't have any jurisdiction.

At the top of the first list, which is the one that says first nations will have power, we have the institutions of government, leadership selection and administration of first nations. At the very top of the list in the policy were the matters to be negotiated. Now, eight years later, we're legislating these matters.

I think we have to move from this legislative model back to the negotiation model and ask how we can do it better. We have to sit down with first nations and give it another try. Eight years isn't that long. First nations have been subject to the Indian Act for well over a century. It's a century of damage that has been done to first nations by Canadians. To give up after not even a decade, after that century of damage, isn't really fair.

I think what we need to do is sit down with first nations and say, how can we make this country whole? How can we bring first nations into Canada, so they're respected as first nations? That isn't done in this legislation. This legislation could be a step in that direction.

I know it's an onerous thing to say to you, but it falls on your shoulders now, I really believe. I know you're taking the time, and it heartens me to see that. But it falls on your shoulders now to make sure that this is an interim step, a bridge to self-government. There's a correct way to do this thing. It's a way that not only reflects first nations values but also reflects Canadian values.

This bill as it's put forward doesn't reflect Canadian values. This bill is full of distrust and disrespect. I'd like to think that at the fore of our country is trust and respect. If we could build on those values and change this bill in the ways that have been indicated this morning, I think we could really go forward. The last thing we want to do is go back to the Indian Act mentality. The last thing we want to do is go back to a mentality that says, we already have one of our own people earmarked for this, we already have our own process earmarked for this. There are ways to get beyond that. I'm sure we can.

I want to thank you very much.

Â (1225)

The Chair: I want to thank you very much also. It was very informative. There's no doubt that you've put many years of effort into this, and it's precious to us.

I think I know what I heard, but I want to clear it up. When you say there are ways of doing it and that we should continue to work at it and dialogue--everything you have said--I don't think I'm hearing you say scratch Bill C-7, that we're better off with the Indian Act. I think what you're saying is that we should make changes to Bill C-7 and continue all the other things incorporated in the Indian Act. That's the only choice we have, to work with Bill C-7. As I said in Red Deer, we can't scrap it; we can only vote no to 59 clauses and send it back to the House. But we know what will happen if we do that.

You're not telling us that we're better off, while the process is engaged--and we won't be the ones who engage it, it will be the government--to encourage it and push for it and not do it with the old Indian Act as it today is.

Dr. Frank Cassidy: Maybe I should make my message clear. I think that the notion of having a piece of legislation at this point in time is a good notion. You had very specific amendments put forward this morning. I endorse those amendments and I think you should take them really seriously and I hope you would adopt them. If you had an act that looked very different from the act we have now, I think that would be a good thing.

But the other thing that has to happen is that you have to raise the question with the Government of Canada, and the question is, what is the evidence that you are really serious about negotiating self-government? Of course it can be concluded that it's going to stop here with this piece of legislation. If this is a bridge, we need to see where that bridge is going. Let's see the bridge be redesigned so it reflects what it should reflect and let's see where that bridge is going. And if you're asking if I support that, I certainly support that.

The Chair: You don't want the construction of the bridge to go to the lowest bidder. Thank you very much.

Dr. Frank Cassidy: Thank you.

The Chair: Thanks to you and all of the people who attended this morning.

Colleagues, we will suspend until 1:30. Perhaps there's somebody in the room who is presenting later and who might want to do it earlier. Do we need an hour for lunch, colleagues? No.

Is there someone who is scheduled to present this afternoon for a maximum of 30 minutes who would like to do it at 1 o'clock? You are scheduled for 1:30. Would you like to do it at 1 o'clock?

Okay, we'll resume at 1 o'clock.