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37th PARLIAMENT, 2nd SESSION

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

EVIDENCE

CONTENTS

Friday, March 21, 2003

1300

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

Ms. Sharon Menow (Member, Aboriginal Peoples Council of Toronto)

The Chair

Mr. Roger Obonsawin (Chair, Aboriginal Peoples Council of Toronto)

1305

1310

The Chair

Ms. Sharon Menow

1315

Ms. Jackie Mc Clure (Aboriginal Peoples Council of Toronto)

1320

The Chair

Mr. Pat Martin (Winnipeg Centre, NDP)

Mr. Roger Obonsawin

Mr. Pat Martin

1325

Mr. Roger Obonsawin

The Chair

Mr. Stan Dromisky (Thunder Bay—Atikokan, Lib.)

Mr. Roger Obonsawin

Mr. Stan Dromisky

Mr. Roger Obonsawin

Mr. Stan Dromisky

1330

Mr. Roger Obonsawin

The Chair

Mr. Roger Obonsawin

The Chair

Mr. Michael Cheena (Aboriginal Urban Alliance of Ontario)

1335

1340

The Chair

Mr. Pat Martin

1345

Mr. Michael Cheena

Mr. Pat Martin

Mr. Michael Cheena

Mr. Pat Martin

Mr. Michael Cheena

Mr. Pat Martin

Mr. Michael Cheena

The Chair

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

1350

Mr. Michael Cheena

Ms. Nancy Karetak-Lindell

Mr. Michael Cheena

Ms. Nancy Karetak-Lindell

Mr. Michael Cheena

Ms. Nancy Karetak-Lindell

Mr. Michael Cheena

Ms. Nancy Karetak-Lindell

Mr. Michael Cheena

Ms. Nancy Karetak-Lindell

The Chair

Mr. Pat Martin

Mr. Michael Cheena

Mr. Pat Martin

Ms. Donna Marshall (Aboriginal Urban Alliance of Ontario)

1355

Mr. Pat Martin

Mr. Michael Cheena

The Chair

Mr. Pat Martin

Ms. Donna Marshall

The Chair

Mr. Stan Dromisky

Mr. Michael Cheena

Mr. Stan Dromisky

Mr. Michael Cheena

Mr. Stan Dromisky

Mr. Michael Cheena

Mr. Stan Dromisky

Mr. Michael Cheena

Mr. Stan Dromisky

Mr. Michael Cheena

Mr. Stan Dromisky

1400

Mr. Michael Cheena

The Chair

Mr. Michael Cheena

The Chair

Mr. Mark Stevenson (President, Indigenous Bar Association)

1405

1410

1415

1420

1425

1430

The Chair

Mr. Pat Martin

1435

Mr. Mark Stevenson

Mr. Pat Martin

The Chair

Mr. Rick Laliberte (Churchill River, Lib.)

Mr. Mark Stevenson

1440

Mr. Rick Laliberte

Mr. Mark Stevenson

Mr. Rick Laliberte

Mr. Mark Stevenson

Mr. Rick Laliberte

Mr. Mark Stevenson

The Chair

Mr. Pat Martin

Mr. Mark Stevenson

1445

Mr. Pat Martin

Mr. Mark Stevenson

Mr. Pat Martin

Mr. Mark Stevenson

Mr. Pat Martin

Mr. Mark Stevenson

The Chair

Mr. Stan Dromisky

1450

Mr. Mark Stevenson

Mr. Stan Dromisky

Mr. Mark Stevenson

Mr. Stan Dromisky

Mr. Mark Stevenson

The Chair

Mr. Pat Martin

1455

Mr. Mark Stevenson

Mr. Pat Martin

Mr. Mark Stevenson

Mr. Pat Martin

The Chair

Mr. Mark Stevenson

The Chair

Ms. Ava Hill (Member of the Six Nations of the Grand River, As Individual)

1500

1505

The Chair

Ms. Ava Hill

The Chair

Ms. Ava Hill

The Chair

Mr. Philip Monture (Member of the Six Nations of the Grand River, As Individual)

The Chair

Ms. Audrey Logan (As Individual)

1510

1515

The Chair

Ms. Rebeka Tabobondung (As Individual)

1520

The Chair

Mr. Dan Smoke (As Individual)

Ms. Mary Lou Smoke (As Individual)

M. Dan Smoke

Ms. Mary Lou Smoke

Mr. Dan Smoke

Ms. Mary Lou Smoke

Mr. Dan Smoke

The Chair

Ms. Ethel Lavalley (As Individual)

1525

The Chair

Ms. Deborah Richardson (As Individual)

The Chair

Ms. Amber Silversmith (As Individual)

The Chair

1530

Ms. Amber Silversmith

The Chair

Mr. Tim Brown (As Individual)

The Chair

Mr. Dean Sayers (As Individual)

The Chair

Mr. Patrick Lavalley (As Individual)

1535

The Chair

Mr. Patrick Lavalley

The Chair

Ms. Rosie Mosquito (As Individual)

The Chair

Mr. Kevin Daniels (As Individual)

1540

The Chair

Mr. Luke Nicholas (As Individual)

The Chair

Ms. Lisa Thundercloud (As Individual)

1545

The Chair

Mr. John Bigeye (As Individual)

The Chair

Ms. Merie Rita Anderson (As Individual)

The Chair

CANADA

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

NUMBER 050

2nd SESSION

37th PARLIAMENT

EVIDENCE

Friday, March 21, 2003

[Recorded by Electronic Apparatus]

· (1300)

[English]

The Chair (Mr. Raymond Bonin (Nickel Belt, Lib.)): We will resume 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 are pleased to welcome the Aboriginal Peoples Council of Toronto, Mr. Roger Obonsawin, chair, and Sharon Menow, member. I see you have a young lady accompanying you. I'll ask you to introduce her, and we'll get her a card, so that everybody can know she is, at her early age, participating in the democratic process.

Ms. Sharon Menow (Member, Aboriginal Peoples Council of Toronto): This is my daughter, Jackie McLure.

The Chair: Hi, Jackie. Welcome. This is like a kitchen table for us. I want you to feel comfortable. Hopefully, Mr. Obonsawin will let you answer one of the questions, if he feels you can handle that. I know you can. Maybe the members will fit a question for our young guest. Maybe she'll field all the questions, then we'll amend the bill accordingly.

We invite you to make your presentation, and we hope there'll be time for questions.

Mr. Roger Obonsawin (Chair, Aboriginal Peoples Council of Toronto): Thank you. Good afternoon, everyone.

Our children learn about the treaties when they are very young from their grandparents. It is passed down from generation to generation. So they are very aware of the political processes and that being Indian is being political, no two ways about it. You don't have any choice in Canada. So I am pleased to see Jackie here to reinforce this.

I want to thank you, on behalf of the Aboriginal Peoples Council of Toronto, for allowing me to address a very important question: should this committee endorse the passage of Bill C-7, the First Nations Governance Act, with or without amendments?

The Aboriginal Peoples Council of Toronto was established a year and a half ago to politically address the concerns and the issues affecting the 60,000-plus aboriginal people in the Greater Toronto Area. Our first elections will be held on May 5 of this year. In the meantime a provisionary council has been selected to establish the processes and the structures for a permanent council and for addressing some issues of immediate concern.

As you know, Mr. Chairman, I made a presentation to the committee as a senator of the National Association of Friendship Centres on February 27. The presenters at that time were encouraged to address the specific clauses of the bill, rather than the overall principles. After reviewing parliamentary procedures, it is my understanding that before second reading of a bill questions can and should be raised on the principles of the bill, but following second reading only questions pertaining to specific clauses can be addressed. The council's position here is very clear. We are opposed to the principles behind the bill and are not prepared to discuss the details of the proposed legislation. We take that position for the following reasons.

First, Minister Nault has stated time after time that this bill will make band councils and chiefs more accountable to their band members. More recently, the minister stated that the bill is needed in order to control the salaries of chiefs, 17 of whom received more than $100,000 in salary last year. Let's get real here. There are over 600 first nations chiefs across Canada, and only seven of them earn salaries of over $100,000. Would the minister pass a bill to control his salary, the salary of a president of a bank, the salary of the CEO of a crown corporation? This bill is not about accountability, this bill, as the minister's comments indicate, is about racism and about continued colonialism. Is the work, the dedication, and the commitment of the native person worth less than that of a non-native person?

I contend, Mr. Chairman, that this bill is smoke and mirrors. This bill is about extinguishing the special relationship that exists between indigenous peoples and the Government of Canada as reflected in the treaties. If you think I would believe otherwise, you are insulting my intelligence.

Second, the true intent of this bill, in combination with the accompanying suite of legislation proposed by Minister Nault, is a major step in extinguishing aboriginal treaty rights as recognized and affirmed in section 35 of the Constitution. The bill will only reinforce the degree of control over aboriginal affairs exercised by Indian and Northern Affairs Canada.

· (1305)

Third, there are viable and proven alternatives to this bill and the accompanying suite of legislation being proposed. These alternatives are being successfully implemented with first nations in the United States, as reflected in the presentation made to this committee by Dr. Stephen Cornell of Harvard University. I would like to quote from a statement made to the Congress of the United States on July 8, 1970, by President Richard Nixon. There is a direct correlation between this new policy and the situation reflected in the Harvard studies.

It is long past time that the Indian policies of the Federal government begin to recognize and build upon the capacities and insights of the Indian people.... The first and most basic question that must be answered with respect to Indian policy concerns the history and legal relationship between the Federal government and Indian communities....

The policy of forced termination is wrong.... Termination implies that the Federal government has taken on a trusteeship responsibility for Indian communities as an act of generosity toward a disadvantaged people and it can therefore discontinue this responsibility on a unilateral basis whenever it sees fit.... The special relationship between Indians and the Federal government is the result, instead, of solemn obligations which have been entered into by the United States Government...through written treaties and through formal and informal agreements....

Self-determination among the Indian people can and must be encouraged without the threat of eventual termination.... We must assure the Indian that he can assume control of his own life without being separated involuntarily from the tribal group. And we must make it clear that Indians can become independent of Federal control without being cut off from Federal concern and Federal support....

I would like to point out that I have extensive experience in developing policies for and providing training to aboriginal organizations, including band councils, on issues of governance, including accountability. This experience has led me to conclude that the legislative route of enforced accountability is the least effective. My experience is based on attempts related to enforcing legislation such as the Corporations Act and charitable institutions accountability legislation. The problem is that there is virtually no monitoring process and the cost of litigation, as enforcement, is prohibitive.

In my opinion, the preferred route is the responsible and cooperative establishment of standards of governance and operations. With this approach, funding bodies can and do reward positive behaviour. The combination of this principle with an effective dispute resolution process, which may or may not include a third party, such as an ombudsman, will invariably lead to increased accountability and effectiveness. It is my contention that the current approach used by Indian and Northern Affairs Canada does just the opposite. It has become obvious that the department rewards bad behaviour by providing and withholding funds for the explicit purpose of securing agreements from band councils and organizations that are consistent with INAC agendas. I further contend that this is where the majority of the accountability problems occur.

We propose that this committee recommend to Parliament that Bill C-7 not proceed to second reading; that as an alternative to Bill C-7 and the accompanying legislation, the Government of Canada change its current aboriginal policy of domination and assimilation to a policy of accommodation and co-existence, as recommended by the Royal Commission on Aboriginal Peoples and as reflected in President Richard Nixon's 1970 address to the U.S. Congress--and I remind people that this was only one year after the 1969 white paper that reinforced the current policies; that Indian and Northern Affairs Canada be relieved of any negotiations, responsibilities, and involvement in the development of aboriginal policy and legislation, and that a minister of state be appointed to negotiate a new agreement with first nations based on the spirit and intent of the treaties, as recommended by the Royal Commission on Aboriginal Peoples; that this new agreement be called the Canada-Aboriginal Relations Act, as recommended by the Royal Commission on Aboriginal Peoples; and that accountability issues be addressed through standards of practice to be established by first nations governments and monitored through a dispute resolution process overseen by an ombudsman, as recommended by the report of the Special Committee on Indian Self-government, the Penner-Jamieson report.

Thank you, Mr. Chairman. Meegwech. All my relations.

I'll pass it over to Sharon and her daughter.

· (1310)

The Chair: Thank you.

Please proceed.

Ms. Sharon Menow: The name of this paper is “Bill C-7, the First Nations Governance Act, Our Children's Future under Siege”.

Good afternoon. I am from the Cree Nation, Bear Clan. My spirit name is Strong Heart Eagle Woman. First, I recognize and thank the Mississaugas of the New Credit, whose territory we are on. I express my appreciation to Chairman Roger Obonsawin for inviting me to address the committee on behalf of the Aboriginal Peoples Council of Toronto. I thank the members of the standing committee for allowing me the time to address this very important legislation, Bill C-7, the First Nations Governance Act.

The FNGA, combined with this suite of legislation Minister Robert Nault has introduced into the House of Commons, is, in my view, a direct attack on our aboriginal and treaty rights and contradicts Canada's own Constitution, subsection 35(1), which recognizes our inherent rights to self-governance. I hereby vehemently oppose, reject, and denounce Bill C-7 in its entirety and all accompanying legislation, as it will infringe, extinguish, and abolish our aboriginal and treaty rights.

Before the Indian Act tribulations were brought before the entire community, where they would sit in council for great lengths of time until every representative had a chance to address the issue. Discussion would ensue until consensus could be obtained. Traditionally, when decisions were made, there were serious considerations as to how they would affect children of today and the next seven generations. When our ancestors signed the treaties, this was calculated in their decision, and it is reflected in the rights we exercise today. Upon reviewing the many legal analyses of the combined impending legislation, I am drawn to the conclusion that our children's future enjoyment of their aboriginal and treaty rights is at risk. There are many defects to Bill C-7, too many to amend. This legislation must be rejected in its entirety.

For example, the absence of a non-derogation clause does not protect and recognize first nations' right to self-government. In addition, if we do not develop our own structures in two years, the default legislation, which does not reflect our world view, value systems, traditions, and cultural norms, comes into effect, not to mention that there are no additional finances available to develop a structure we can call our own.

· (1315)

Bill C-7 must be rejected because of the lack of meaningful--and I stress meaningful--consultation, as Minister Nault set the process for only a six-month period. It is most impractical to entertain the idea that he could reach over 633 communities across the country of Canada, as some are located in the most arduous, remote, and geographically challenging terrain in this country. The consultation process was grossly inadequate and a colossal failure, as it drew in less than 1% of the first nations population. The majority consulted were those of the urban population, not the ones who live on the reserves, where this will have the most dramatic impact.

This legislation speaks of accountability, promising to eliminate corruption. How does this legislation protect the community if the leaders use the land as collateral for a foreign loan and default on the payments? When all the money is spent, who assumes title to the land, and what happens to our people who live there? What will be left for our children?

The accompanying legislation abolishes our tax immunity. How does paying taxes leave more money in the pockets of our single mothers who are at home raising their children and already living below the poverty line? The $15 million that was spent on the development of this initiative could have been better used to improve the third-world living conditions of our children who are living in poverty. If these were your children, would you have made this a priority?

In closing, I would like to invite the government of this country to step back, let first nations take the lead in developing policies, and embrace the vision we see for our children and future generations.

I would like to let you now hear from my nine-year-old daughter, Jackie McLure.

Meegwech.

Ms. Jackie Mc Clure (Aboriginal Peoples Council of Toronto): Hello. My spirit name is Circle of the Clouds, and I am from the Bear Clan, the Norway House Cree Nation. My English name is Jackie. I know I just look like another indigenous child, but I really have a lot to say.

When my ancestors signed the treaty, it was agreed that we have rights. I feel it is wrong for you to take away our rights and tell us what to do. I would like to have a bright future. On behalf of the first nations children, please stop the FNGA.

Thank you for your time. Meegwech.

· (1320)

The Chair: Thank you very much, Jackie. Your member of Parliament had better watch out--you're coming.

We can do one round of five minutes. That will allow a few minutes for closing remarks.

Mr. Martin.

Mr. Pat Martin (Winnipeg Centre, NDP): Thank you, all, for being here and for the very moving brief. It certainly comes through, the strength of your conviction on these important issues. I compliment you on a very comprehensive brief and a very detailed analysis, even though I know there was no funding available to even put together a brief on these sweeping changes to the Indian Act.

I'd like to go directly to one of the recommendations. Recommendation three is something we've seen. The idea is excellent, and I believe it does stem from the Royal Commission on Aboriginal Peoples. Nobody, from what I can see across the country, wants this--$15 million just for a sham of a consultation process and $110 million per year to implement, to shove this down the throats of first nations who neither want it nor need it. Could you speak to a better use for that money, if it's to be spent, having a minister of state negotiate new agreements leading to a new aboriginal relations act?

Mr. Roger Obonsawin: I think part of the money--it wouldn't take much--would be better spent in developing ways to make Indian Affairs more accountable to our people. They have a trustee obligation to act in the best interest of our people, and yet we're getting into so many court cases where they're failing to meet those obligations and using our resources to do that. That's where the accountability has to start, not with our councils. That's why we're making the recommendation of a minister of state, without funding powers, to start the process, so that the funding cannot be used to manipulate the outcomes you want. We can sit down at a table as equals and work out the details of the Canada-Aboriginal Relations Act without interference and coercion that is contrary to the concept of self-determination and is perpetuated by the department.

That money could be much better spent. We already are spending money on developing our own alternatives, and it's not government money, thank you. We have traditional structures in place that we can develop. The encouragement of those initiatives would be money much better spent.

Mr. Pat Martin: Thank you.

Even though the bill is called a governance act, many have made the point that it has very little to do with governance. In fact, I'd ask you to comment on a point that's been made, that it undermines the very idea of self-governance with the imposition of codes of governance, when surely an aspect of self-governance is the ability to design your own governance institutions to meet your own customs and traditions. Can you speak to the seeming contradiction in the name of the bill?

· (1325)

Mr. Roger Obonsawin: If I understand the concept of the inherent right to self-government, this is not a legislative right, it's a right that's been there all along. How can you propose a governance act that does not meet the principles of an inherent right? That's what I'm very much opposed to. If we are sovereign nations, we need to begin to act like sovereign nations, and part of that is developing codes within our nations, and many of our nations are doing that. Some are doing it in more traditional ways, the great law, or the codification under the Pimicikamak Cree Nation, which I've mentioned to this committee before, and I believe they've made presentations. That means that they have the authority. The real authority for governance comes from the communities, it doesn't come from another government. The Pimicikamak Cree Nation have proven that's where their power and authority come from. That's the best way to enforce accountability.

The Chair: Thank you very much.

Mr. Dromisky, five minutes.

Mr. Stan Dromisky (Thunder Bay—Atikokan, Lib.): Thank you very much, Mr. Chair.

Thank you very much for coming. It's good to hear from the young ones.

I think you're smart enough to realize, as you've been involved in this for a great number of years, that what we have before us in Bill C-7 is actually the outcome of a collection of episodes, experiences, complaints, problems, and so forth with first nations and among first nations people, in other words, internal problems over a period of many years. The result is something called Bill C-7, covering maybe too many areas at one time. I don't really know, but maybe it's too much to swallow at once. The point is that these are problems related to the kinds of things that are happening on a reserve, within a reserve, between the people who are in power and the people who are being empowered, the people who are being controlled by the councils and the chiefs. There are, from experiences we've had at this committee and from the presentations that have already been made in other provinces, irregularities on some reserves. Some of the witnesses called certain chiefs dictators. They spoke of diabolical practices, punishing people who are opposed to policies that the chief creates, all kinds of irregularities. I am not talking about the majority of chiefs in Canada, I'm talking about a minority.

My concern is that we should not sacrifice the inalienable rights of the minority. You people are talking about self-determination and so forth, which is already covered for the sake of the majority. How will you people help us to rectify that problem on several reserves in this country? We have no idea how many, but I think it is more than just one or two or three or four. We're hearing too many stories. Can you help us? How can we do it in the most effective manner possible to help the people who do not have the rights you have in this part of the country under effective leadership in council that has provided the kind of policy over a period of years to allow you to live in a very democratic community?

Mr. Roger Obonsawin: I understand that question. I get those phone calls quite often from people at the community level--a feeling of frustration and nobody to turn to. But why are you the ones who need to resolve those issues? The department has been asked many times to intervene in some of those issues, but they do not want to have the political responsibility of doing it. They also are feeding into the issues, because a lot of the money going in is to get, as I said, into abusive situations where the money is being used for furthering the INAC agenda.

Mr. Stan Dromisky: That is a cop-out, sir.

Mr. Roger Obonsawin: I'm sorry, it's not a cop-out.

Mr. Stan Dromisky: I think the aboriginal people and first nations people of this country should stick together for the benefit and the enrichment of quality of life for all aboriginal people in this country. I have been a member of Parliament since 1993. The first people who approached me in 1988, when I intended to run--I ran in 1988 and didn't get in--were aboriginal people. I have more aboriginal people come to my office with their complaints and their horror stories than I do people coming about guns, and business people, lots of contractors, and so forth. They demand that the federal government do something about it, because no other law enforcement agency will do anything about it.

· (1330)

Mr. Roger Obonsawin: I resent that, because I have brought some of those--and it wasn't with band council--to the attention of the funding sources. I have mentioned the Corporations Act as a way to do that, and they would not enforce it, the community had to enforce it. The government would not enforce it, so why pass legislation to enforce something you don't even want to enforce? It is not a cop-out. I am saying that there are alternatives to deal with those issues, the ombudsman, a very specific way, and codes that address those issues internally, within the community. That is work that is proceeding and should proceed. I am saying we need to take control of those issues as nations, not just individuals. A first nation is not really a reserve, the nation is broader, the Ojibway Nation, the Cree Nation. We, as a collective, need to take control and start putting in our own codes and enforcement and standards we can work with.

The Chair: Thank you very much.

You have two minutes for closing remarks. We invite you to do that now.

Mr. Roger Obonsawin: I'll be very brief. I will be watching who votes for and against. I understand--and I address this to the Liberal members--the marching orders are, let's get this thing through. You won't be doing it based on your own conscience if you're following the directions of your leader. I will be watching that vote to see who votes on his conscience and who votes based on the party line.

That's all I have to say.

The Chair: Thank you very much. And a special thank you to Jackie.

We now have, from the Aboriginal Urban Alliance of Ontario, Michael Cheena and Donna Marshall. Welcome. We invite you to make your presentation, hopefully followed by questions and answers. Please proceed.

Mr. Michael Cheena (Aboriginal Urban Alliance of Ontario): I'm a member of the Moose Factory Cree Nation up in northern Ontario, Treaty No. 9. My colleague Donna Marshall is a band member of the Nipissing First Nation up in the North Bay region.

Chairperson, members of the parliamentary committee on Canada's proposed First Nations Governance Act, fellow aboriginal citizens, ladies and gentlemen, we wish to thank you for the opportunity to address this committee on such an important matter.

Aboriginal Urban Alliance was established in 1991 to represent the social, cultural, economic, and political interests of treaty and status first nations people living in urban areas of Ontario. We are a non-incorporated body with no direct ties to any native organization, although our members have direct individual interests with the respective first nations of our home reserve communities. Our organization is strictly a volunteer organization promoting the interest of treaty and status first nations issues. We make every effort to speak on off-reserve or urban first nations issues. Unlike all first nations and many urban native organizations, we do not receive any government funding for our efforts.

Sadly, we are not properly represented by our first nation communities where we come from, for a variety of reasons. Membership, adequate services, and accessibility to first nations governance activities are among the contemporary challenges facing the first nations citizens of Ontario and across Canada. We in urban centres across the nation seek a better quality of life like many of our people on reserve communities. Moreover, our special status as treaty and status first nations citizens is not represented by any group, including the friendship centres and the Ontario Federation of Indian Friendship Centres, because they have no clear mandate on our urban issues. Their organizational set-up is very mixed, without any clear mandate on treaty and status first nations issues. Finally, we are not represented by either the Assembly of First Nations or the Congress of Aboriginal Peoples.

We stand alone with all these different urban groups who may claim to represent us, but they do not, nor do they have any legal standing whatsoever to do so. Our first nations communities do not wish to help us in any significant way, even though their per capita funding is based on our numbers too for their dollars in Ontario and across Canada. Over 50% of us live away from our first nations communities, for various reasons, including the search for employment, education, housing, and a better quality of life for our families. Many of us work very hard to maintain the minimum basics of life, food, shelter, which is merely rented at unaffordable and unprotected rates, and clothing for our families. We don't have the time or the resources to properly speak for our inherent rights of self-government and treaty and aboriginal rights at this time.

Today a new governance legislative bill is proposed that will dramatically affect the lives of first nations peoples. We want to share our views on some key points of this proposed governance legislation.

· (1335)

The existing Indian Act does not have any reference to contemporary issues, such as status first nations citizens living away from their home communities. Why does this oversight continue? Do we cease to exist after we leave our reserve communities? What about the legitimate first nation offspring membership? They, as we, are legal Indians as defined in the Indian Act and further reinforced by Bill C-31, which recognized the discriminatory laws in the Indian Act as violating the United Nations definition of human rights and, later, the Human Rights Code of Canada. Our legitimate concerns have been reinforced by the Corbiere decision recognizing our legal right to vote in first nations elections. Why do we have to allow the court to give us equal rights? Shouldn't Canada have the moral courage and political will to give all first nation citizens equal justice?

We continue to be penalized for daring to look beyond our reserves for employment, accommodation, education, and better health services. We feel every new law affecting first nations must give equal rights to all first nations, whether living on or off reserve. Without this recognition, there is no justice. Therefore, new legislation must be just before the law.

The proposed legislation will do away with whatever token exemption status we are still fighting to sustain in the existing Indian Act and present-day situation. In other words, if you look at our pay cheques, we are by no means tax exempt. Many status or non-status aboriginal individuals are making every effort to personally benefit from this existing tax exemption treaty and status right, to the point of selling the rest of us out. Unfortunately, most of our people who deserve tax exemption to ease their economic burden are not getting it. This is not fair and it must be changed in favour of our people who need it.

Finally in this regard, and every regard concerning the first nation people of Canada, we need to consider proper and fair compensation for all the natural resources, including land and water, exploited by the Government of Canada and the large corporations who exist, previously and today, as a result. Tax exemption and tax revenue on natural resources should be given back to our communities for our economic sustainability. Our first nations should benefit from these community-based government arrangements. Any new legislation should spell this out.

There are many urban organizations that receive millions of dollars of public funding, but do not significantly assist or positively affect the quality of life of the majority of treaty and status first nations. Only a small percentage of these urban groups benefit from the annual public funding they receive. Usually, only close friends, native and non-native, family members, and spouses benefit from the employment and service of most of these urban groups. Most of these urban groups are not properly accountable to the general public for the funds they receive. At worst, they are not accountable to the constituents they claim to represent. Finally, their claimed membership are not necessarily legitimate first nation band members as defined by the Indian Act or respective first nation band membership lists. The majority of services that are supposedly provided are for treaty and status first nation members who live in the urban areas.

We now wish to emphasize the following points of recommendation to address our legitimate concerns.

First, we want a specific reference in the first nations governance legislation on urban first nation citizens as existing with special status and rights with regard to their respective first nation communities. We are asking the Government of Canada to realign public funding and direct it back to the first nation communities, so they are properly equipped to better represent the legal and political interests and rights of their members living away from their first nation communities. Membership will be determined by the first nation communities, to include categories such as Indians as defined by the present Indian Act, Bill C-31, and whoever the band deems a member, such as spouses and descendants. The first nations of Canada will assist the government in declaring who their citizens are. First nation communities should declare their non-native citizens to substantiate the adequate resources required to provide the basic services, such as housing and education, the relevant public services accessible to all Canadian communities.

· (1340)

Second, tax exemption should be specifically mentioned in Canada's proposed first nations governance legislation as having a foundation at the first nations governance level, which would be accessible by first nation citizens whether they live on reserve or in urban areas away from their respective first nation communities. First nations could look at new tax policies to be re-aligned with Revenue Canada.

Third, regarding public funding for urban native organizations, those who have treaty and status first nations in the area they are located should be made to account for and to justify the public funding they receive. The board of directors and staffing should be made up on a proportionate basis of each urban group's claim of representation, to allow for treaty and status first nations representation. This should be a policy for public funding of native groups.

Thank you.

The Chair: Thank you.

Five minutes, Mr. Martin.

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

Thank you, Mr. Cheena, for your brief.

I certainly take your point that the First Nations Governance Act doesn't address the issues of urban aboriginal people, any more than it addresses the genuine interests and aspirations of first nations in their home communities. I represent downtown Winnipeg, where there are over 14,000 urban aboriginal off-reserve residents, and even that count I believe is low--that's the number that was self-identified. I can't say today, because I haven't spoken to all of them, but I've certainly got word that people there are just as frustrated as you are that the first time we open the Indian Act in virtually 50 years, to try to address some of the pressing shortcomings, it misses the mark for everyone. It misses the mark for the leadership in the first nations communities, and we've heard from thousands of them, and it misses the mark, you're saying, in meeting the interests of the people you're representing.

I ask you to share with us some of the shortcomings you see. The claim was made that there was broad consultation, that this bill was put together with the input and the participation of literally thousands of aboriginal people across the country. Do you feel you had adequate input and consultation in the crafting of this bill?

· (1345)

Mr. Michael Cheena: I believe we didn't have enough consultation on this bill, because of the timeframe, with the short notice, with us and other native groups. We are seeking adequate representation for our people who live off reserve. There are so many native organizations out there who are claiming to represent off-reserve native people, but fifty per cent of our people live off reserve, and they have no political representation whatsoever.

Mr. Pat Martin: Recent court rulings do put the obligation on your home community to provide some services and access to vote in elections, for instance, with Corbiere, but we've certainly heard from first nations leaders who find they don't have the resources to provide the basic needs of anybody in their home community or off-reserve, never mind Bill C-31 entrants who may add to the band list. No corresponding funding came with the addition of these people to the rolls of the band. Is the issue the fiscal relationship between the federal government and the first nations people, rather than the governance issues raised in the bill?

Mr. Michael Cheena: The government is passing the buck in respect of jurisdiction. The federal government has fiduciary responsibility for aboriginal people, but they're saying off-reserve people are the responsibility of the provinces.

Mr. Pat Martin: So this is another glaring shortcoming in the bill. If there had been adequate consultation, would you have told the government that these are the issues you wanted dealt with in the bill, or would there be other priorities, as per your brief, you would have rather seen in amending the Indian Act?

Mr. Michael Cheena: These are just some of the issues. We have more.

Mr. Pat Martin: People have told us, though, that the issues we see addressed in the Indian Act don't even come close to the top-of-mind issues they want dealt with in order to move forward as a sovereign people. You raised the issue of moving forward, whether you're on reserve or off reserve, with recognition. Again, if they actually came to you and you did have time to fund and put forward a proper presentation to a consultation committee, would the issues you raised be the ones we see in Bill C-7 or something entirely different?

Mr. Michael Cheena: I believe they would be different. We have issues that are related to our treaty rights, tax exemption, self-government, and access to land. We have no land base.

The Chair: Thank you very much.

Ms. Karetak-Lindell, five minutes.

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

I'm trying to understand a little more the situation with aboriginals who live away from their reserve. Your submission has clarified some of the questions I had for other people earlier, but I'm still trying to understand what you think would be the right body to administer funds on your behalf. You're saying you want to have access to the resources people in your home reserve have access to. I imagine that means assistance for housing, education, and the tax exemption you feel should apply off-reserve. Is that the case?

· (1350)

Mr. Michael Cheena: As I said to the royal commission in 1992, once I leave my community, am I still a native? I didn't leave my treaty rights in my community when I left. I still have my status and my treaty rights.

Ms. Nancy Karetak-Lindell: If you're saying a group like the Congress of Aboriginal Peoples or AFN does not represent you now, what is your suggestion for a group that would represent people off reserve?

Mr. Michael Cheena: The Congress of Aboriginal Peoples is not a signatory to the treaties, for one thing. The Assembly of First Nations, I believe, doesn't have the resources and the funding to address urban native issues.

Ms. Nancy Karetak-Lindell: So are you saying there should be a different group, or are you saying AFN should be given the resources to administer on behalf of you as a treaty Indian?

Mr. Michael Cheena: I believe AFN should be given the resources, because of the Corbiere decision. One of the issues under Corbiere was that the Assembly of First Nations lacked the dollars to do a consultation.

Ms. Nancy Karetak-Lindell: When you have to vote in elections on your home reservation, how do you do that? Do you do it by proxy, do you have a mail-in ballot? How do you exercise your right to vote in band elections now, as someone in Toronto?

Mr. Michael Cheena: Some of us mail-in our votes, some of us go back to the reserve and cast our votes in the ballot box.

Ms. Nancy Karetak-Lindell: If you have to go back to your home community to vote, do you pay your own way?

Mr. Michael Cheena: Yes, we have to pay our way to our community and pay our way back.

Ms. Nancy Karetak-Lindell: Thank you.

The Chair: Thank you.

Mr. Martin, four minutes.

Mr. Pat Martin: I would ask simply what would be your direction to this committee and to the House of Commons on this bill. What would you see done with it--scrap it, amend it, start over?

Mr. Michael Cheena: I think you should scrap it. I think the road map for self-determination and self-government would be the Penner report and the Royal Commission on Aboriginal Peoples report.

Mr. Pat Martin: Ms. Marshall, would you like to add anything to that?

Ms. Donna Marshall (Aboriginal Urban Alliance of Ontario): I would say accessibility. If you were dealing with legal issues, wouldn't you have legal representation to protect your legal entitlements and rights? There has been absolutely no consideration in that regard. The consultation process has made no reference whatsoever to the off-reserve citizens of Canada, and yet it claims to be a modernized Indian Act allowing better provisions for governing structures of first nation communities. I think a fundamental issue is accessibility to the first nation activities, appropriate legal counsel to protect what treaty and status rights we have, accountability also for the urban groups that are misrepresenting us at this time. These are obvious issues, so why isn't the Government of Canada even looking at them?

· (1355)

Mr. Pat Martin: This is true. Actually, we've had representation from the Congress of Aboriginal Peoples, which claims to represent off-reserve aboriginal people. They were given millions of dollars to promote Bill C-7 at the same time as the funding of the Assembly of First Nations was cut by 50%. They had to lay off 70 people, the very experts who were needed to do a fight-back campaign on this bill. They funded this other group. You are a group representing off-reserve, urban aboriginal people that is opposed to Bill C-7. It seems to me they were using dollars to buy support from groups they wanted to fund. Do you feel that way about the Congress of Aboriginal Peoples' presentation to our committee?

Mr. Michael Cheena: The Congress of Aboriginal Peoples never invited me to their AGM, and neither do they represent me. It's as clear as that. They are just after the dollars.

The Chair: I'm sure it wasn't your intent, Mr. Martin, but you talked about funding for presentations to this committee. I think you meant the consultation before this committee.

Mr. Pat Martin: That is true. The Congress of Aboriginal Peoples was given a lot of money to conduct meetings around the country, a huge amount of money actually.

Ms. Donna Marshall: If you look at some of the progressive first nations, such as Nipissing, they have developed their own land code based on their participation in the First Nations Land Management Act. They have a strong desire to represent their off-reserve members, but they're not provided with adequate resources to do that job. We want specific reference in any legislation affecting first nations to accommodate that process. We are committed to providing that legitimate link to our first nation communities.

The Chair: Thank you.

Mr. Dromisky, four minutes.

Mr. Stan Dromisky: You are both from the reserve at Nipissing. What is the name of it?

Mr. Michael Cheena: We're from Moose Factory First Nation.

Mr. Stan Dromisky: You're from Moose Factory, okay.

The Assembly of First Nations and Congress of Aboriginal Peoples are composed of aboriginal peoples themselves, and I'm sure your reserve has a representative there.

Mr. Michael Cheena: My reserve is a member of the Mushkegowuk Tribal Council, and also they have a seat on the Assembly of First Nations.

Mr. Stan Dromisky: Yes, and so does Nipissing.

Mr. Michael Cheena: I believe so.

Mr. Stan Dromisky: But you are living in an urban centre. In Thunder Bay, where I'm from, we've got about 20,000 aboriginal people who have relocated and live in the city of Thunder Bay. They have the very same problem you're having. These two national aboriginal groups have, from what you're telling me, not recognized officially the urban component of their total population. In other words, they have a seat for Moose Factory, for Nipissing, and for Fort William reserve in Thunder Bay, but not for the people who are living by the thousands in Toronto. They say Toronto has more aboriginal people living in it than any other community in Canada. This is what I've been told, and I think it's true.

Mr. Michael Cheena: Yes.

Mr. Stan Dromisky: But they don't have seats for these groups.

Mr. Michael Cheena: That's true.

Mr. Stan Dromisky: Maybe it's time for the people who are living away from the reserve and probably will spend the rest of their lives away from the reserve.... I know what's happening in northwestern Ontario. The reserves are getting smaller and smaller in numbers. They're moving into larger communities, such as Winnipeg, Thunder Bay, Toronto, Vancouver. The constitution of these two organizations maybe should change and say, we have to recognize that there is a unique cluster of aboriginal people, developing a different culture, a different standard of living even. They are not from Moose Factory, they are from Toronto. There's a hell of a big difference between living in Moose Factory and living in downtown Toronto on Bathurst Street or College or whatever. I think that is the approach that has to be used. It's a problem you people will have to solve; the federal government cannot step in there and solve it for you.

As to the money problem, your reserves are getting money, and you feel it's not being distributed fairly. Those are the kinds of problems I've been dealing with for the last 10 years with the people in Thunder Bay who come from reserves all over northwestern Ontario and Manitoba. We have no control over that in the federal government, but you feel we should have some input there, is that right?

¸ (1400)

Mr. Michael Cheena: Yes, I believe so. The reserves are not economically viable. That's why more and more native people are moving away. The band councils and the chiefs are accountable to the Minister of Indian Affairs, they're not accountable to the band members. That's the other issue. Again, off-reserve band members are not benefiting from the per diem the bands receive for us who are on the band list.

The Chair: Thank you very much.

There are two minutes left, and we invite you to make closing remarks.

Mr. Michael Cheena: I want to thank you for the opportunity to be here, and I hope you will take some action on this Bill C-7. I hope this is in the best interest of our members and urban native people. I thank you very much.

The Chair: Thank you, both, very much.

I now invite, from the Indigenous Bar Association, Mark Stevenson, president, to give us his presentation .

Mr. Mark Stevenson (President, Indigenous Bar Association): Thank you very much.

I'd like to begin by thanking the members of the standing committee for providing an opportunity to the Indigenous Bar Association to make this presentation.

At the outset it's important to state that our organization is strongly supportive of principles of transparency, accountability, and proper financial management. The IBA also embraces fundamental principles of democracy and wishes to see those principles embodied in all aspects of Canadian governance. Those principles and the process of creating them, however, must be consistent with section 25 of the Charter of Rights and Freedoms, to ensure that such democratic principles and values are applied in a manner that allows for the full expression of the body of rights protected by section 35 of the Constitution Act, 1982, including the inherent right to self-government. In the IBA's view, the process by which such principles are agreed to and through which new laws and institutions are created must be founded on principles of openness, fairness, transparency, and accountability. Without those principles being followed in the process of law-making, there will be no respect for the outcome or the laws and institutions that come out of that process.

The Indigenous Bar Association is a professional organization representing Indian, Inuit, and Métis lawyers, judges, legal consultants, crown prosecutors, and law students across the country. Our mandate includes objectives linked to advocacy, public education, and bringing about a fuller understanding of indigenous legal matters. The IBA constitution outlines our objectives: to recognize and respect the spiritual basis of indigenous laws, customs, and traditions; to promote the advancement of legal and social justice for indigenous peoples; to foster public awareness within the legal community about indigenous legal matters; and in pursuance of the foregoing objectives, to provide a forum and network among indigenous lawyers, to provide for their continuing education in respect of developments in indigenous law, to exchange information and experiences with respect to the application of indigenous laws, and to discuss indigenous legal issues.

Because we are a professional organization, with some members working as crown counsels and policy advisors within government, while others work as legal practitioners, others for national aboriginal associations, we do not take a political position on the matters before the committee. We will restrict our comments to matters of process. We do, however, feel bound to raise matters that are of concern to our organization, taking into account our corporate objectives and our desire to see aboriginal and treaty rights honoured. In this regard, there are several matters of principle we wish to make note of respecting the process related to Bill C-7.

The Indigenous Bar Association is of the view that the following principles should be enshrined as a part of both the content and the process of Bill C-7. First, the process related to Bill C-7 should be open and transparent, so that first nations have sufficient information to make informed decisions about the impact of the legislation. Second, both the process and the content of Bill C-7 should in no way infringe the inherent right to self-government. Third, neither the process nor the content of Bill C-7 should have an adverse impact on the Crown-Indian fiduciary relationship. Fourth, Bill C-7 should fully address matters related to the accountability framework. Finally, the process of consultation on Bill C-7 should be open and inclusive, as were the processes with RCAP and the Penner report. I'll go through each one of these principles.

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I'm really speaking about the issue of disclosure when I talk about an open and transparent process. As part of the IBA mandate related to public education, the IBA leadership felt it was necessary to provide our members with sufficient information to enable them to properly assist communities in understanding the implications of Bill C-7. In this regard, it was of interest to us that on several occasions Minister Robert Nault and his civil servants mentioned that the changes to the Indian Act were required because of the volume of litigation respecting certain provisions of the act. Mention was made on several occasions of more than 200 cases before the courts. There are public records of that. Statements the minister made were reported in the National Post, and there were other places where these statements were made, including during the consultation process. Consequently, the IBA sought to understand the impact Bill C-7 would have on the litigation.

On January 4, 2002, through our membership, a request was made to the Department of Indian Affairs Access to Information and Privacy Office for the cases referred to by the minister and for an indication of how the proposed legislation would address the matters subject to the litigation. The Access to Information and Privacy Office within the department was unable to help us. A formal complaint was subsequently filed with the Office of the Information Commissioner. The initial request was made well over a year ago, but we did not receive any information respecting the litigation until February 2003. This was after the INAC consultation process was over and after Bill C-7 had been introduced. This failure to provide information in a timely manner is troublesome to the IBA.

In addition, the IBA sought information from the department respecting the potential impact of Bill C-7 on both the inherent right of self-government and the Crown-Indian fiduciary relationship. Our search was inspired by the joint ministerial advisory committee report that was predicated on assumptions that the proposed legislation would not affect the fiduciary relationship and would not infringe the inherent right to self-government. We also understand that Minister Nault has made statements to the same effect and that similar statements were made during the consultation process. In fact, in the Parliamentary library a research paper produced there states, “The minister has clearly stated that the amendments must not infringe existing aboriginal treaty rights and must not alter the fiduciary relationship.” On August 14, 2002, we sent a letter to the Access to Information and Privacy Office in Indian Affairs for “any information in either the Department of Indian and Northern Affairs or the Department of Justice that either supports or contradicts these assumptions.” We subsequently filed a further complaint with the Office of the Information Commissioner, because we simply were not getting the information we requested.

To date we have received absolutely no information from the department related to these assumptions, notwithstanding the efforts of our membership and the efforts of the Office of the Information Commissioner. The information exists, but we cannot have access to it. In a letter dated October 16, 2002, from the Access to Information and Privacy Office within INAC we were advised that the information requested would not be released because of requirements for “confidences of the Queen's Privy Council”. We are deeply troubled by the failure of the federal government to provide some very basic information that we have requested related to the impact of Bill C-7. As a fiduciary, Canada has an obligation to fully disclose information it has regarding the impact the legislation might have on section 35 rights, as well as the impact the legislation will have on the Crown-Indian fiduciary relationship. To date there has been a failure to disclose. In our view, the Crown's honour is at risk.

I should mention that we did receive, as I mentioned, the list of 200 or so cases the minister had referred to. It's here. It's not complete, there's a lot of stuff that's blanked out, but we're still in the process of analysing it.

¸ (1410)

We recommend that there be full disclosure on the potential impact of Bill C-7 on the litigation the minister has referred to in his past comments. We also recommend that the Crown disclose any information it has on the potential impact of the proposed legislation on the inherent right to self-government and the fiduciary relationship. We expect nothing less from a government that is demanding transparency and accountability from first nations.

I'm going to speak now about the consultation process and the infringement of the inherent right. The Supreme Court of Canada has determined that aboriginal and treaty rights are both substantive and procedural. In other words, section 35 recognizes and affirms aboriginal and treaty rights, and in doing so, it both protects the content of those rights and requires a process of consultation and accommodation. It is likely that for this reason, the federal government initiated its fairly costly, but ineffective consultation process on this bill. According to the tests laid out by the Supreme Court of Canada in Sparrow, to determine whether there's been an unjustifiable infringement of aboriginal or treaty rights, it's necessary to provide some proof of the right, to determine whether there has been an infringement, and to determine whether or not the infringement is justifiable--that's referred to as the justification analysis.

Without belabouring the point, it's a historical fact that indigenous people were here first, exercising rights of self-government and nationhood. There's no question of proof of the right, and I have a list of references regarding that. Equally important is that in order to trigger the constitutional obligations on meaningful consultation and accommodation, first nations are no longer required to prove the existence of a right. The court has said first nations simply have to prove that there's a prima facie case. The reason this is important is that when the consultation process was initiated about a year and a half ago, the thinking from the courts was that the duty to consult is not triggered until the inherent right or a right is proved in court. That's no longer the case. What first nations have to do is prove a prima facie case, and in fact, the courts have gone beyond that. They're saying there is always a duty to consult and the duty to consult requires that the consultation is meaningful. The tests on consultation have significantly changed since the beginning of this process, and it may well be that the consultation process on the bill does not meet the tests required by the courts.

If passed in its present form, the First Nations Governance Act will be an imposition on a right that has existed and been exercised by indigenous people since time immemorial. Although it's clear that the current Indian Act is an infringement of many aspects of the inherent right to self-government, that alone is insufficient justification to impose Bill C-7 on those who do not accept it, and that through a process that does not meet the legal standards in relation to meaningful consultation established by the courts. The process the Crown has undertaken to bring Bill C-7 forward has not met the minimum requirements of meaningful consultation, because it has not engaged first nations with the intent of fully addressing their concerns. INAC has offered to meet with first nations to discuss the bill, but not to enter into a dialogue with first nations. INAC has offered to meet with first nations to answer questions on the bill, but since the beginning of the bill has not engaged fully first nations as a part of the actual development of the bill. As I indicated earlier, INAC has not been open and transparent about the sharing of information. Consequently, the process of development and promotion of Bill C-7 to date is inconsistent with the court's requirements.

¸ (1415)

Justification requires, at a bare minimum, meaningful consultation, and in some cases, if the matter will fundamentally affect the rights of indigenous peoples, consent will be required. The IBA submits that determining the process of leadership selection, financial accountability, and the structure of first nations governments and institutions is at the very foundation of the right to self-government and raises the degree of meaningful consultation required by the Crown to its highest level. In other words, it is our view that the subject matter of the bill and the nature of the impact on the inherent right will trigger a consent requirement.

The courts have talked about what “meaningful” is, and I'll just read a quote from Delgamuukw from the Supreme Court of Canada:

Of course, even in these rare cases when the minimal acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of Aboriginal People whose lands are at issue. In most cases it will be significantly deeper than mere consultation. Some cases even may require full consent of an Aboriginal nation....

The minimum threshold of the Crown's legal obligations to meaningfully consult has not been met. In fact, in the IBA's experience to date, INAC's process for bringing Bill C-7 forward has been marked by secrecy, confidentiality, a failure to provide sufficient information, and a failure to disclose.

The consultation process on Bill C-7 has been flawed from the outset. We submit that because the flaws are so fundamental, there is a need to return to the developmental stage of the bill, ensuring a consultation process that is comprehensive, open, and truly directed at addressing the fundamental concerns of first nations. There should be a consultation process put in place that meets the standards set out by the courts for meaningful consultation that is comprehensive, open, and transparent.

I'll now speak about the impact of the bill on the fiduciary relationship. The Crown has an obligation to conduct itself in a manner that is in the best interests of indigenous people. This is because when the Crown asserted itself over indigenous lands and territories, it assumed certain responsibilities. These responsibilities flow from the amount of discretion exercised by the Crown over indigenous lands and over the inherent right to self-government. An obvious example of that discretion is both the process and content of the proposed First Nations Governance Act and the power and discretion the minister exercises throughout the Indian Act. As a result of that discretion and the vulnerable situation in which first nations find themselves, the Crown has the fiduciary obligation to act in the best interests of indigenous people. The Crown-Indian fiduciary relationship is rooted in the royal proclamation of 1763 and many of the treaties and is linked to both section 91, class 24, of the Constitution Act, 1867, and section 35 of the Constitution Act, 1982. It has become a constitutional imperative, it forms a part of the constitutional framework of this country.

There's a relationship between the nature and scope of the fiduciary relationship and corresponding duties and the reduction of the minister's discretion along with increased authority exercised by band councils. Yet, as earlier mentioned, the JMAC report and the minister have made the assumption and the statement that the proposed legislation will not have an impact on the fiduciary relationship or any corresponding duties. INAC officials have reiterated this message, yet there is no analysis available to the public to support these assertions. We recommend that the matter of the impact of Bill C-7 on the fiduciary relationship and corresponding duties be fully explored by a third party and that the results of this study be made available to the public.

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I'll now speak about accountability. There are at least three different levels of accountability that come into play when addressing Indian Act matters and the relationship between the Department of Indian Affairs and Northern Development and first nations. In a general way, these three different levels can be referred to as the Crown-Indian accountability framework. We've summarized them as follows. The first part is the administrative accountability of the department for decisions it makes affecting bands and band councils. The second is the accountability of the Crown with respect to the fiduciary relationship and indigenous peoples and corresponding fiduciary duties. The third is the accountability of band councils to members, including political accountability, financial accountability, and accountability for administrative decisions that affect the rights of individual band members.

The first aspects of this accountability framework place an onus on the federal government to ensure that it conducts itself in a manner that is open and transparent and in such a fashion that the unfair exercise of administrative discretion can be challenged. Currently, there is no process in place whereby first nations can challenge the discretion exercised by the minister and his officials without going to court.

Second, there are matters of accountability regarding the conduct of the Crown as a fiduciary. We raised this matter earlier because of our concern over the failure of the Crown as a fiduciary to disclose information respecting the impact of Bill C-7 on the fiduciary relationship and aboriginal and treaty rights. Absence of an independent agency to monitor the manner in which Canada fulfils or fails to fulfil different aspects of its fiduciary obligations is troublesome. We understand that Bill C-7 was not designed to look at these broader issues of accountability, but these matters need to be addressed.

The third aspect of the accountability framework involves the overall accountability of band councils. Within this context there are several aspects that need attention, including financial management and accountability, political accountability, and accountability for administrative decisions. We will focus our comments on accountability for administrative decisions.

This issue concerns administrative decisions and accountability for the delivery of programs and services to individual band members by band governments and the corresponding need for an independent process to address and redress the concerns of community members when they feel they have been wronged. There is a need for a complaints and redress process that can address the unique circumstances of first nations and meets certain objective criteria. These criteria include independence, fairness, transparency, accessibility, respect, efficiency, accountability, stability, investigative powers, confidentiality, public reporting, powers to recommend, and the ability to undertake investigations on its own initiative. We think this matter is of fundamental importance and should be addressed more fully by the creation of a first nations ombudsman.

For your information, the IBA recently commissioned a study entitled The First Nations Ombudsman, prepared by Chief Roberta Jamieson, IPC, former ombudsman for the Government of Ontario. The report provides an analysis of the criteria referred to above and their application in a first nations context. We will not go through the report, but we will leave it with the committee, so that it becomes a part of your official hearings.

These same principles should also apply to the creation of an independent body that would play an oversight role respecting the department's accountability for its administrative decisions with respect to aboriginal people.

We recommend that the Crown commit itself to addressing issues of accountability through the entire accountability framework, including the creation of an oversight body that would monitor the conduct of the Department of Indian Affairs and Northern Development respecting its administrative decisions; the creation of a section 35 watchdog that would report and monitor the fiduciary relationship; and the creation of a first nations ombudsman.

¸ (1425)

I now come to how openness and accessible process can be addressed. The Penner commission was established by the Crown to determine ways in which indigenous peoples could be better represented within the fabric of Canada and its institutions. Ultimately, the Penner report, published in 1983, set out that first nations institutions must be created to generate institutional participation by and respect among aboriginal peoples in Canada. This report was published after a lengthy and comprehensive consultation process with representatives of government, indigenous peoples, the Canadian public, and various third-party interests. Upon being published, the Penner report received significant support from many interested parties and was not subject to the degree of controversy Bill C-7 has been subject to.

In addition, between autumn 1991 and 1995 the Royal Commission on Aboriginal Peoples embarked on a significant consultation process which allowed for:

close to 100 meetings, each usually lasting several days.... On these and other important occasions, such as public hearings, opening and closing ceremonies were held and a prayer or thanksgiving address was offered to the Creator for the safe arrival of persons to the meeting or their safe return home to their families, for the start or ending of the day, and for all the living things that are part of the Circle of Life. If a meeting was about to begin, those who participated were asked to approach the day with a good mind, to speak clearly and honestly with each other, and to listen carefully to what was being said. It was emphasized that, when people come together for high purposes and to deal with difficult issues, their minds have to be clear.

The RCAP report released in 1996 was the most comprehensive report in relation to indigenous people in the history of Canada. Like the Penner report from a few years earlier, the RCAP report was not met by indigenous peoples or Canada with protests or calls of unfairness or threats of legal action. Both the RCAP report and the Penner report were accepted by aboriginal people not only for their substance, but because the process of developing that substance was fair, open, accountable, and democratic and included the full participation of all aboriginal peoples in a way that was respectful and dignified.

In light of the above, we recommend that there be a meaningful consultation process for Bill C-7 that reflects the successful process and values of the Penner commission and the Royal Commission on Aboriginal Peoples. We further recommend that the process be founded on a reasonable time period that all parties agree to and not be subject to a condensed timeframe.

I will just go through the summary of my recommendations and then, if there is time, I'll take some questions.

We recommend that there be full disclosure on the potential impact of Bill C-7 on the litigation the minister has referred to in his past comments; that the Crown disclose any information it has on the potential impact of the proposed legislation on the inherent right to self-government and the fiduciary relationship; that there is a need to return to the development stage of the bill and that there should be a consultation process put in place that meets the standards set out by the courts for meaningful consultation and is comprehensive, open, and transparent; that the matter of the impact of Bill C-7 on the fiduciary relationship and corresponding duties be fully explored by a third party and that results of the study are made available to the public prior to the bill's becoming law; that the Crown commit itself to addressing issues of accountability through the entire accountability framework, including the creation of an oversight body that would monitor the conduct of the Department of Indian Affairs and Northern Development respecting administrative decisions, the creation of a section 35 watchdog that would report and monitor the fiduciary relationship, and the creation of a first nations ombudsman; that there be a meaningful consultation process for Bill C-7 that reflects the successful process and values of the Penner report and the Royal Commission on Aboriginal Peoples; that the process be founded on a reasonable time period that all parties agree to and not be subject to condensed timelines.

¸ (1430)

In closing, we would like to again emphasize that the fundamental concerns expressed here are concerns related to process. Having said this, we have to remind you that section 35 rights are both substantive and procedural and that procedural flaws can be fatal.

Thank you for taking time to consider this presentation, and we wish you the best of luck in this very difficult task.

The Chair: Thank you very much.

We will proceed to questions. Mr. Martin, five minutes, for a start.

Mr. Pat Martin: Thank you.

Thank you for a very helpful and very comprehensive brief. I found outrageous the difficulty you have had securing the information you felt was necessary. I know we have people from the department here, and I'm glad it's on the permanent record that you found it impossible, virtually, to secure the information that would have given you more insight, I believe, into what the minister is really up to.

There is apprehension out there, and we've heard it across the country in many very emotional presentations, that there are secondary objectives at play here, that under the smoke screen that this bill is really about improving the financial management or accountability with first nations it's a Trojan horse, if you will, there are other objectives out there, and one of those is to get out of the fiduciary responsibilities or to diminish and undermine inherent aboriginal treaty rights. I guess what alerts even a lay person's mind is the absence of any non-derogation clause in this bill. Can you speak to how valid these apprehensions may be, given that without any explicit reference to the contrary, there could be a move to diminish, undermine, or reduce fiduciary responsibility and inherent treaty aboriginal rights?

¸ (1435)

Mr. Mark Stevenson: I wouldn't want to speculate on what the motives may or may not be. Until we actually have the information and until there's full disclosure, it's very difficult to comment on that. At this point the Indigenous Bar Association, first nations around the country, and you yourselves are in the dark on that issue, because we haven't had full disclosure.

On the issue of a non-derogation clause, there's been a lot of work done in that area, and we've reviewed the JMAC report. There's a good analysis in that report on possible non-derogation clauses. There have been a lot of submissions made here on non-derogation clauses, and that work is very good and we respect it a lot. We contemplated trying to address certain aspects of the substance, and the difficulty is this. In our brief we have concluded that the process was so fundamentally flawed, because of the failure to disclose, that looking at clause-by-clause corrections, including a non-derogation clause, couldn't resolve the problem. While I take no issue with those who have put forth non-derogation clauses, if the process is fundamentally flawed, a non-derogation clause isn't going to fix it. Again, if there is a fundamental infringement of rights, it's difficult for me to see that a non-derogation clause would be helpful. I'm not opposing a non-derogation clause, I'm just stating, from our analysis, what the fundamental problems are.

Mr. Pat Martin: Your brief certainly gives us something we can use. We've heard from people right across the country that they're fearful that may, in fact, be the case. Given the level of involvement here today and outside at the demonstration, people across the country don't want this bill, and we thank you for your brief today, because it's useful and helpful to us.

Thank you.

The Chair: Thank you Mr. Martin.

Mr. Laliberte, five minutes.

Mr. Rick Laliberte (Churchill River, Lib.): Thank you, Mr. Chair.

I think at this time, given your legal experience, I'll ask you about some of the terminology used in the bill, items that are missing and items that may need more clarification.

The preamble of the bill says, “Whereas the governments in Canada have certain powers and capacities”, but in order for Canada to be a nation, it had to ascertain the territory. In ascertaining the territory of Canada, it entered into treaties. Would you say, if any bill is created, it should refer to the treaties that were signed between the original nations? Should there be reference to treaties in any act that refers to first nations of Canada?

Mr. Mark Stevenson: Without speaking to the particulars of the bill, if there is legislation that's going to be put in place after an agreed process in which either treaty nations or nations with aboriginal rights have been fundamentally involved in a meaningful way, there's agreement on that legislation, the parties agree that in one way or another, it's going to affect treaty rights, and there's agreement about language, it makes sense to put it in.

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Mr. Rick Laliberte: Is there a difference if the first nation is defined with a capital n on nation or a lower case n? Is there a difference in legal definition between a nation with a capital n and a nation with a small n?

Mr. Mark Stevenson: I really don't want to get into a discussion on the particulars of the bill, because as I've said before, we have some fundamental concerns with process, and it doesn't make a lot of sense to me to engage in that argument.

Mr. Rick Laliberte: Bear with me on another one.

The definition of the legal capacity of band councils is equal to a natural person, but in governance is the legal capacity of a natural person imposed on municipal governments, provincial governments, and federal governments?

Mr. Mark Stevenson: Most pieces of legislation will put some form of legal ability on those entities. For example, administrative boards or bodies have certain duties to perform, so the legislation creating a board gives it the authority to do what its mandate says. Some of them create a full capacity, others don't. So it depends on which body you look at and the functions that body has to perform.

Mr. Rick Laliberte: Looking at process, would you recommend that a full orientation of the Penner report and the RCAP report be given to this committee before making the decisions under clause-by-clause on the next portion of the journey of this bill?

Mr. Mark Stevenson: The process with the bill has been flawed, and both Penner and RCAP were open transparent processes that engaged first nations and the public significantly and about process, so we recommend that a process similar to those processes be used here, in order to ensure that there's sufficient consultation with first nations.

The Chair: Thank you.

Mr. Martin, five minutes.

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

I'm interested in the volume of the court cases the minister made reference to and you finally have a list of. We have been told that many first nations, if this bill becomes law and there is the effort to invoke the default mechanisms of imposing a code of rules and governance against their will, essentially, after the two-year time period expires, will be going to the courts. This could cause all kinds of court cases. It would make the 200 court cases we have currently seem small. I know it's hard to give a legal opinion off the cuff like this, but do you see grounds, given that the consultation process was so grossly inadequate and didn't meet any of the tests of a legal definition of true consultation, for challenging the imposition of these new codes?

Mr. Mark Stevenson: There have been quite a few legal opinions prepared on this topic. All those I've seen have said the consultation process was inadequate, and therefore the bill itself would be an infringement of the inherent right to self-government. I have not seen any opinion to the contrary, although we have asked for that opinion. So based on those opinions, not my opinion, there is no other conclusion than that the bill is an infringement of the inherent right self-government. If other information is out there, it would be helpful to have it.

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Mr. Pat Martin: The minister or the department or someone must have contemplated this eventuality. Otherwise, they're going ahead knowing full well they're open to challenge at least, if not to losing these challenges.

Mr. Mark Stevenson: Again, the only thing I can say is that we made the requests. We were told by the Access of Information Office that the information would not be released.

Mr. Pat Martin: Confidence of the Queen's Privy Council.

Mr. Mark Stevenson: So if they're saying it will not be released, we have to assume it's there.

Mr. Pat Martin: That is really frustrating. It's frustrating to me as a member of Parliament. I'm going to make a motion as soon as it's possible that this committee demand to see any such legal opinion that may exist. I believe it is in the purview of this committee to have it on our desks.

You might be interested to know, in regard to the farce that was the consultation, we had one person give testimony who was working for INAC when they did one of these consultations, and though it was only an information meeting, he was ordered to count those present, whether they were for or against, or even if they came to that meeting to talk about housing or health care or education or any number of the grievances first nations people have. Those numbers would show up in the 10,000 the minister claims were properly consulted.

As far as the definition of true consultation goes, I've read that consultation is not really consultation without accommodation. In other words, simply telling people what they intend to do to them and asking their opinion of it is not consultation. Could you expand a little bit on how you understand a true exchange in consultation?

Mr. Mark Stevenson: I don't think it's important what I understand, as the courts have talked about what the standards are for consultation with first nations. The courts have said, if the matter is fundamental, and they have actually referred to hunting and fishing regulations, consent is required. The courts have set standards. They've talked about good faith, they've talked about openness and transparency. I think we just have to go through those tests the courts have outlined and make a determination on whether or not the consultation process that was established actually meets those requirements.

The Chair: Thank you.

Mr. Dromisky, five minutes.

Mr. Stan Dromisky: Thank you very much.

Your paper is excellent, but I think the most outstanding portion of the paper is the section on accountability. When I look at it and think about it, in my role as a member of Parliament in Thunder Bay, where we have over 16 reserves, my job would be so much easier. Here you're talking about accountability, and you have three major areas. Two of them pertain to the relationship between the bands and the first nations people and the government. The third one is internal, pertaining to how the bands administer themselves and develop their policy, accountability not only for administration, but also for their financial decisions and programs. So it's fine. I loved everything you said in there, I agree with it a thousand per cent, but how do we ever get to the point where we can actually trust each other to fulfil whatever we put in writing, whatever we agree to?

First, I want to look at something from a legal viewpoint. Do we make it into a law? Is that how it's going to have to happen? Do we make it into a law that these three forms of accountability must be carried out in the relationship between the federal government and the first nations people, as well between the chief in council and the members of each band? Does it have to come to the point where we make an actual law? I don't know. Where do we go from? If we can reach that level of understanding that we want something definite in our relationship pertaining to those three levels of accountability....

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Mr. Mark Stevenson: They're not easy tasks, that's for sure, but if you read the report provided by Roberta Jamieson, she goes into a great amount of detail on how a first nations ombudsman could be set up. For that to happen, the process, again, has to be truly a consultative process, and that has to end up being a first nations institution. That's one aspect of it.

The second aspect I referred to was the issue of accountability with respect to administrative decisions made by the department. That's in many ways an ombudsman role, and though many provinces have ombudsmen, the national government doesn't, but they do have an Information Commissioner, an Auditor General, and different independent bodies that take the government to task every once in a while, and those are set up through legislative initiatives. They would be models to look at, but again, there has to be an open and fair consultation process.

The tricky one would be what we refer to in our paper as a section 35 watchdog, an independent institution that would monitor the manner in which the Crown meets or does not meet its fiduciary obligations. It's a unique situation the Department of Indian Affairs is in. On the one hand, they're fiduciary. Their way of making decisions should be, is this particular decision in the best interests of first nations? That's the test. There's a need for a body to monitor whether or not those decisions positively or negatively affect first nations, because there's no other way of doing it than going to court, and that's why there's so much litigation.

Mr. Stan Dromisky: You're talking about a body to monitor what the government is doing. What about a body to monitor what the chiefs are doing?

Mr. Mark Stevenson: That's why we referred to the three aspects. The first is the first nations ombudsman, who monitors, by international equality standards, the decisions first nations governments make, including decisions made by chiefs that affect individual first nations citizens. So your concerns are covered in that one.

Mr. Stan Dromisky: No, not totally. Take this situation. I'm an ombudsman, you're a chief, you're not paying any attention to the grievance we have made, you tell me to go to hell. What recourse has the ombudsman, the government, the people of the band if the chief says, this is what we're going to do, it doesn't make any difference what the ombudsman says?

Mr. Mark Stevenson: There are many governments that make mistakes, not just first nations governments, federal governments, provincial governments, municipal governments, and they have political power.

The Chair: Mr. Martin, you have a three-minute round.

Mr. Pat Martin: I'm still very interested in the difficulties you've had finding the information you were asking for from the department. I guess your question to them was whether they commissioned or developed legal opinions about the possible impact of Bill C-7 on--what? Help me.

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Mr. Mark Stevenson: The inherent right to self-government and the fiduciary relationship.

Mr. Pat Martin: And you wouldn't be asking this if you weren't apprehensive at least that it possibly does or had reason to believe it could. So it's your belief that it does?

Mr. Mark Stevenson: As I said, there are numerous opinions out there stating that it is an infringement of the inherent right to self-government, and they're available to the public. There are no opinions I've seen available to the public that say the contrary. They may exist, but we've asked for them, and they weren't provided to us.

Mr. Pat Martin: At the first opportunity, given the information we've just received in testimony, I want to know if the department has any legal opinions that may speak to the possible impact on inherent aboriginal rights of Bill C-7. I'm very frustrated and horrified to learn that this wasn't made available.

I want to congratulate you on an excellent brief. I have a friend who's a lawyer of aboriginal descent, and he said, the biggest mistake they ever made was letting guys like me go to university.

Thank you.

The Chair: We invite you to make closing remarks.

Mr. Mark Stevenson: Thank you very much.

It's just an honour having the opportunity to make this presentation. I realize your task is actually insurmountable, but I do just want to caution you that there is a huge risk that the bill may, in fact, negatively affect rights. If it does negatively affect rights, both procedural rights and substantive rights, it could be fatal. I understand you have a limited mandate, but I urge you to proceed very carefully, and I wish you the best of luck.

The Chair: Thank you very much.

Now I invite Ava Hill and Philip Monture, members of the Six Nations of the Grand River, for a ten-minute presentation.

Welcome. We invite you to start immediately.

Ms. Ava Hill (Member of the Six Nations of the Grand River, As Individual): Joining me today are Nina Burnham from Six Nations, a former counsellor, an elder in our community I have a tremendous amount of respect for, and a good friend of mine who has vast experience in aboriginal politics, Andrea Chrisjohn from the Oneida Nation of the Thames.

At the outset I want to make it absolutely clear that I am not in support of the First Nations Governance Act. I also want to express my disappointment with the consultation process that was undertaken with respect to this act. The minister undertook to go out and seek the input and support of not only the first nations membership, but also the non-first nations population. This was very troubling to me, because I firmly believe non-first nations communities should not have any say in how we conduct business in our own territory. That includes who lives in our territory, who runs for election in our territory, and who can vote in our elections.

I want to talk a bit about all the information that has been disseminated with respect to the FNGA. I want to say, as a band member living on an Indian reserve, it is hard to figure out who is telling you the truth. Is it the Minister of Indian Affairs who is sitting in Ottawa and has maybe been to our reserve once or twice, or is it our chiefs and councils who are putting out their own propaganda that some have classified as fearmongering? For example, the minister says this will make the first nations more accountable and will give them more authority to carry on business. At the same time, we get flyers in our mailboxes at home saying the FNGA will extinguish our aboriginal rights, it will impose municipal governments on us, it will reduce the government's fiduciary responsibility to first nations people, and it will bring taxation to the reserves. It seems that it has come to a war of words at the expense of the first nations people.

From what I have read, the FNGA deals with a number of areas that many first nations are already engaged in. My own reserve, Six Nations, already has its own election code, its own financial management policy, and other administrative policies in place, as do many other first nations. In saying this, I want to state that one thing I do not like about the FNGA is that it is a one size fits all act. It will never work in a country that has so many diverse first nations with their own identities and cultures.

Another thing I don't like about the FNGA is that the minister still holds all the power. What is the minister going to do if the chiefs and council do not meet the standards laid out in the FNGA? Is he going to cut off the funding the government owes to us as of right? Who will that affect? It will affect the very same people he is trying to protect, the first nations people at the community level.

Rather than imposing this FNGA on us, the Government of Canada should be implementing the recommendations that came out of the report of the Royal Commission on Aboriginal Peoples. The government spent millions of dollars to get those recommendations, yet they refuse to implement them. If you pass this act, we can almost assure you that in 20 or 30 years from now there will be another royal commission to find out what can be done to help the aboriginal people survive in this land that was originally ours.

You should also pay heed to the residential school system. That system was set up by the Government of Canada supposedly to help the aboriginal people. You know as well as I do that the residential schools never helped the aboriginal people at all. Rather, they led to many of the social and economic problems our communities face today, not only because of the effect on our language and our culture, but also because of the physical and sexual abuse that took place in those institutions.

I agree that first nations leadership must be more accountable, but I do not think it is up to the Minister of Indian Affairs to act as the great white father in demanding this accountability. It is up to the first nations people themselves to demand this accountability, and we have to do that by empowering the first nations people at the grassroots level. Many chiefs and councils spout the same thing when they are running for office and tell the membership to ask questions, demand answers, yet when they get elected, they are no better than the predecessors they criticized.

Our people have to get rid of the apathy that exists in so many of our communities. We have to stand up and speak out. We have to be concerned about what is happening. We have to worry about the future for our children and our grandchildren. Unfortunately, too many people are afraid to speak out.

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We need responsible leaders in our communities, and it is up to us to put them there and to ensure that they maintain the responsibility we entrust them with. We do not need leaders who equate themselves with the mayors and premiers who head up the non-first nations governments. We do not need leaders who invite non-band members to have a say as to who lives in our territory. We do not need leaders who play up to the mainstream media, yet refuse to talk to our own local newspapers. We do not need leaders who dictate to the councillors we elected to represent our interests.

I want to use this forum to present a challenge to all our people. We need to take control and set the direction for our communities. We must go back and look at our traditional ways, and those of us who are still lucky enough to have a traditional system in our communities need to go to them and work with them. We have to rebuild our nations. We need to sit down with the Government of Canada, not as one first nation from within the province of Ontario, but as the Iroquois Nation, or the Ojibway Nation, or the Cree Nation, or the Dakota Nation. We were once a strong and proud people who exercised our own sovereignty. We have to look within ourselves and among ourselves to rebuild that strength and pride, because it is still there. Our leaders are always saying we are a sovereign nation. Well, we need to act like it. We need to start implementing our inherent right to self-government and to aboriginal and treaty rights, not only for our sake, but for the sake of our future generations.

As a closing remark I just want to say that when I first started my employment after I graduated from high school, I went to work at Indian Affairs in Toronto. That was in July 1969. I was there two weeks, and the Minister of Indian Affairs at that time issued a decree. The gist of it was that there would be no more Indian Affairs. That was 34 years ago, the Minister of Indian Affairs at that time was Jean Chrétien, and the decree he issued was the infamous white paper. In my opinion, this FNGA is the white paper. It was stopped in 1969, but Jean Chrétien did not throw it away, he just put it on a shelf, and now he's directed his current minister to implement it before he retires from political life in this country.

By the way, Indian affairs is still there, and bigger than ever. I was recently at the headquarters office, and every time I go there, I see floors and floors of employees working. I wonder how many of them have ever been to an Indian reserve. Not many, I bet. To them we're just statistics, numbers, and a pay cheque. They do not have a grasp of what really goes on in our communities. The millions of dollars spent on this bureaucracy may be better spent on providing more dollars, particularly for recreation and economic development, at the first nations level, where this money is supposed to be spent.

Thank you.

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The Chair: Thank you very much.

I now invite Philip Monture to present. There's 10 minutes left.

Ms. Ava Hill: Why do you give the Indigenous Bar Association an hour and the people five minutes?

The Chair: Because he represents a national association.

Ms. Ava Hill: Do you want to say anything? You've got a minute.

The Chair: We're using up the time. We have to be out of this room at 4 o'clock.

Mr. Philip Monture (Member of the Six Nations of the Grand River, As Individual): I'll give you a quick minute. My paper is tabled there. Pretty hard act to follow, Ava. Excellent.

The Government of Canada had one opportunity to get something in place under Bill C-6, the Specific Claims Resolution Act, and by not following the independent claims tribunal that was jointly established between Canada and the Assembly of First Nations, they failed the people of Canada and the first nations people in not getting them an economic base to correspond to what our investments have been in this Canada. Without that, we're going to be begging for our money for the rest of the generation. All you've got here is an Indian Act government that's going to continue, it's not going to change for us. You failed. If the government proceeds with the claims resolution process without our building our own economic base to establish our own independence, we're nothing, we're never going to be out of the rut we're in. Compound that with instability at the first nations level at election times, treatment of native employees. It's a big black hole--what laws apply and don't apply to us? There is no stability. We're starting to lose our corporate memory at the reserve level. There's a massive lack of proper leadership out there.

Add that to Ava's presentation.

The Chair: That will be put on record. I'm told by the clerk that it was your request to appear together.

We must move on to Audrey Logan. We have over 15 individuals from the room who wish to make a comment, and we must be out by 4.

Audrey Logan, please.

Ms. Audrey Logan (As Individual): [Witness speaks in her native language]

I introduce myself in this manner, because it is my native tongue. It is alien for you. I see that you're trying to understand where the words are coming from, but I on purpose didn't include them, because our language is just as alien to you as this act is to us. My English name is Audrey Logan, and I come from the Turtle Clan. I come from the Delaware First Nation community just off of the 401 highway near Thamesville.

The First Nations Governance Act is being promoted as the federal government's response to the request of first nations people across Canada. It would appear that the implementation of this legislation is nothing more than the federal Government of Canada's answer to debt reduction. Historically, the federal government has been very interested in assuming ownership over aboriginal lands and resources, but far less interested in assuming responsibility for providing services to first nations populations.

It is true, the first nations people have been seeking support in the area of first nations governance since the implementation of the first Indian Act. However, the first nations people of Canada are of the firm belief that this type and style of governance will come from within. The style of government that existed prior to Confederation was a sophisticated style of governance that left the signatories to the royal proclamation of 1763 with no doubt that the indigenous peoples were able to manage their own affairs. The predominant style of government that predated confederation was a consensus style of government, and in many communities it is still used to this day. The First Nations Governance Act is a supervisory piece of legislation, with the ultimate authority residing with the federal government.

The Crown first took the fiduciary responsibility upon itself with the signing of the royal proclamation in October 1763. The proclamation included wording for the protection of Indians, that they not be molested or otherwise disturbed. In the Constitution Act of 1867 the federal government used its powers in section 91, class 24, to enact the Federal Indian Act, which consolidated all post-Confederation federal statutes pertaining to Indians. The 1927 Indian Act contained surrender provisions for tracts of land, soil, sand, stone, minerals, etc., to the advantage of the Crown. The 1952 Indian Act revision allowed first nations men to vote and discriminated against first nations women. The current Indian Act, last revised in 1986, is the legislation being tabled for revision. Historically, the federal government has been very interested in assuming ownership over aboriginal lands and resources, but far less interested in assuming responsibility for providing services to first nation communities.

The Government of Canada, through the Crown, holds a fiduciary responsibility to the first nations people, and this is entrenched in the Constitution Act of 1982. The Sparrow decision clearly outlined the Crown's fiduciary obligations to aboriginal peoples, which extended far beyond the surrender of aboriginal lands to Crown-native relations and was entrenched in subsection 35(1) of the Constitution Act, 1982. This First Nations Governance Act is an attempt to back away from the Crown's fiduciary responsibility to the first nations people of Canada.

The Government of Canada has a history of developing legislation that erodes the rights of our people. Suffice it to say that for first nations people, the government presents a process native people have found entirely unsatisfactory in the past.

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There has been little or no consultation in the development of this legislation with the first nations that are directly affected by the implementation of this act. The Assembly of First Nations, the Chiefs of Ontario, the Association of Iroquois and Allied Indians, Grand Council Treaty No 3, Nishnawbe-Aski Nation, and the Independent First Nations have all rejected the implementation of this bill. The federal government is embarking on implementation of this legislation without adequate consultation with the key stakeholders. The federal government, as the political establishment, refuses to trust all people, not just native people, to make major decisions, even though it is the people who have to live with the consequences of those decisions.

It would appear that this legislation is a step on the part of the federal government towards debt reduction in the federal government's fiduciary responsibility to the first nations people of Canada. The Government of Canada's affording the first nations people self-governance will naturally evolve into the local government's taxation of its people. When a community solicits more power in the area of governance, the community also facilitates the decline in fiscal responsibility from an overarching government. You can use examples anyone in Ontario can relate to, the downsizing residents of Ontario are currently experiencing. It will be demonstrated that the first nations communities in Canada are at the lower end of the economic ladder in Canada and do not enjoy the ability to generate own-source revenue at the community level through taxation, as their non-native counterparts do. The First Nations Governance Act resembles government downsizing and will lead to the eventual taxation of first nations communities. Historically, the government has been interested in assuming ownership over resources, but less interested, again, in providing equitable distribution of revenue generated by the first nations' community land. The taxation of the first nations citizens in Canada is not a viable option, as no tax base exists. This reduction in service will also have an effect on all the citizens of the surrounding areas, as it will have an impact on them economically, socially, physically, and emotionally. The moneys generated by and through first nations communities are spent in the towns of our neighbours.

It needs to be mentioned that the Crown may be in a conflict of interest in implementation of the First Nations Governance Act. This legislation allows for the Crown's self-interest or the interests of third parties to interfere with its obligations to the first nations people. The Crown has an interest in fiscal management through the implementation of this legislation. The Liberal Party of Canada, as a third party, has an interest in debt reduction and a political platform to get re-elected through the implementation of the First Nations Governance Act. It is the Crown's duty to act with the utmost good faith towards the best interests of the aboriginal people. The initiation of this legislation is acting on the best interests of the Crown, not the aboriginal peoples to whom they hold a fiduciary obligation.

I guess the constitutional question arising here is, does a single body possess the absolute right to decide what, if any, shall be the effective powers of another government? The argument presented by first nations people is that we are a government based on traditions and customary laws. The fact that the Government of Canada entered into treaties with the Indians indicates that they were recognized as a political group, as a sovereign people, and negotiations proceeded as if on a nation-to-nation basis.

If you'd be so kind, I would like you to remind Robert Nault that democracy does not mean the law is made by the elected representatives and the bureaucrats.

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The Chair: Thank you very much.

We now go to spontaneous presentations. We have 15 names. I understand three or four have indicated before that they would like to make one, and if we can track them down, we'll book them tentatively, hoping to get them in before 4. I will be strict on the two minutes. People say that's not very long, it's not something we normally do, but this committee decided we wanted to open up to the floor, and this is the best we could come up with.

I invite five at a time, and we will be doing them one after the other: Rebeka Tabobondung, Ethel Lavalley, Dan Smoke, Robert Adams, and Deborah Richardson.

Ms. Rebeka Tabobondung (As Individual): I am a member of the Wasauksing First Nation, Beaver Clan. I am here today to express to the committee that I am 100% opposed to Bill C-7, the First Nations Governance Act, combined with the entire suite of legislation Indian Affairs Minister Robert Nault has introduced into the House of Commons.

Where has the Government of Canada come since 1969, when you tried to implement the white paper? I believe Bill C-7 to be a carbon copy of the white paper, which was vehemently opposed by aboriginal people across Canada then. It is plain to see that as in 1969, it is opposed by aboriginal people today. Has the Government of Canada been sitting with its eyes and ears closed for the past 34 years? Since 1969 there have been scores and scores of academic and political writings by aboriginal people that spell out that what we want is self-determination. The Government of Canada itself spent millions of dollars on the RCAP, which also concluded that Canada must deal with aboriginal peoples on a nation-to-nation basis and not on a bogus, unilateral, and dictatorial basis. It is totally shameful and makes no sense that the Government of Canada would turn its back on 34 years of forging beyond the white paper of 1969. I believe the FNGA is a leap backwards into the dark ages and proves the continued racist and colonial entrenchment of the Government of Canada today.

Meegwech.

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The Chair: Thank you very much.

I don't see Ethel Lavalley here, so we'll go to Dan Smoke.

Mr. Dan Smoke (As Individual): Mr. Chair, I'm doing it with my wife Mary Lou. We'll take up the two minutes together.

Ms. Mary Lou Smoke (As Individual): Robert Nault, Minister of Indian Affairs, says he intends to replace the Indian Act with the governance act. The first announcement two years ago brought a loud “No” from the first nations leadership. Eventually, both sides agreed to address aboriginal social and economic conditions, the treaty relationship, and the land revenue base that is required to support governance.

M. Dan Smoke: Nault derives his authority to enact legislation from section 91 of an outdated Indian Act. First passed in 1876, the act regulates the relationship between the federal government and native communities. Everyone agrees that the act is paternalistic and limits native peoples' rights to self-determination. We question why he chooses to ignore section 35 of the Constitution Act of Canada, which recognizes and affirms aboriginal and treaty rights.

Ms. Mary Lou Smoke: Where contradictions such as these occur in aboriginal legislation, we feel the law should be interpreted so as to favour aboriginal rights, not the authority of bureaucrats. For example, Nault's attempt to legislate delegated authority in the FNGA is a far cry from the nation-to-nation relationship that section 35 affirms.

Mr. Dan Smoke: The minister should be working with first nations to promote our inherent right to self-government and to re-establish traditional government. The Canadian government should uphold the Constitution Act it passed only 21 years ago, as well as the United Nations Charter of Human Rights, which is binding on this country. Aboriginal law-making must be developed in partnership with, not behind the back of, aboriginal leaders.

Ms. Mary Lou Smoke: Last fall the first nations governance initiative was introduced into Parliament by the Indian affairs minister. He says the governance act will modernize the Indian Act. There is no question that the Indian Act needs to be repealed. First nations leadership has said there should be wide consultations on what replaces it. This has not happened.

Mr. Dan Smoke: The bill would require native bands to develop codes to spell out how they choose their leaders, run their governments, and spend their money. Bands will be allowed to develop their own laws in these three areas as long as they meet certain minimum standards set out by the federal government. If they don't develop their own codes within two years, the federal government could impose default rules.

The Chair: Thank you very much.

To all of you, if you leave your written document, we'll make sure every member gets a copy, even those who couldn't come here with us.

I call upon Ethel Lavalley to start immediately.

Ms. Ethel Lavalley (As Individual): Thank you very much, members of the standing committee.

I'm the Ontario Federation of Labour secretary-treasurer and the Canadian Labour Congress aboriginal vice-president. I bring you greetings and the support of the 2.3 million members of the labour movement. I come in support of our aboriginal first peoples in saying no to this governance act.

It's amazing to me that today, the international day for the elimination of racism, around this room we have our first people talking to a committee about what racism is all about. I think it's very ironic that still in the year 2003 we have to come before a committee to say, leave our rights, negotiate our rights, talk to our people, don't tell us what to do. There are two wars going on here. One is the war in Iraq that's getting a lot of press, but I'd like to say to you there's a silent war that's continued for decades, and that's the war against the first nations people. That's the war that continues against our first nations people and their rights.

My suggestion to you today is to negotiate and consult and talk to the people, talk to the chiefs, talk to the grassroots people. They know what they want. We're not stupid. We were the first peoples here, and we implore the government to take us seriously. We're here in numbers today, and make no bones about it, we'll be back in numbers if the government doesn't act and withdraw this legislation. That's not a threat, it's a promise.

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The Chair: Thank you very much.

Robert Adams is not here.

Deborah Richardson, please begin.

Ms. Deborah Richardson (As Individual): Greetings.

I'm not going to repeat what many of my brothers and sisters have presented to you. I'm from the Papineau First Nation in New Brunswick, and this is my daughter Jasmine.

I was the executive director of the Native Canadian Centre of Toronto, which is one of 118 friendship centres across the country. During our annual general meeting Indian Affairs showed up and asked if somebody could provide information to the membership. The membership agreed at that point, but passed a resolution indicating that this was not a consultation and that Indian Affairs should not mark it down as a consultation; it was for information purposes only. We felt the membership should be entitled to that. Shortly thereafter we go to the website of Indian Affairs to learn that they had a consultation with the Native Canadian Centre of Toronto.

As another example, a Mohawk elder from Akwesasne, bussed into Toronto, came in for what he thought was a meeting. It ended up being a consultation. This is an older gentleman, 90 years old, very upset; he felt that he was used as a “person that was consulted”.

Those are the two examples I wanted to provide in regard to the consultation process, and those, I'm sure you've heard across the country, go on and on.

The Chair: Thank you very much.

I'll make a comment, because our next presenter is younger. We're really proud of you. We commend you for having thecourage. Now we give you your two minutes.

Amber Silversmith.

Ms. Amber Silversmith (As Individual): We are Ongwehonweh by descent, not within the meaning of the Indian Act. Our children will not be held as commodities. We are stronger than ever. We are caregivers and protectors of Mother Earth. We speak for all animals, land, water. Our responsibilities and way of life are to look after these precious gifts. Our job was given to us by the Creator himself, as long as the rivers flow and the grass grows. He also said, I'll be back, the return of the great king himself.

How about you not telling us how to be natives and giving us what we believe our needs to be? Each and every native face here can tell you what they need in their lives. Each person deserves to be happy, fed, and safe. Let's not sit around the table any more twiddling our thumbs and have you people try to figure us out, because it's not going to happen. We are not children to be looked after by you or your government, we are children of God. We do not need you to see what we are in your eyes. We are native by descent, not Indians within the Indian Act. Our souls are not for sale. We are not for sale. I strongly believe we are not children belonging to the Queen. We have a job to do, and you have tried to take our job away. My soul is not for sale.

The Chair: Thank you, and congratulations.

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Ms. Amber Silversmith: This does not make me an Indian. My heart, my soul, my spirit, my blood makes me an Indian.

The Chair: We understand.

Mr. Brown, please begin.

Mr. Tim Brown (As Individual): I'm the OFL vice-president for aboriginal persons.

I wrote your name in the sand, and it blew away. I wrote your name in the clouds, and it drifted away. I write the name of my people in my heart, it shall remain there forever. Learn to withhold judgment. Listen to learn, learn to listen. Get in touch with your own inner self. Look at life with joy. Don't ever cry over something that can't cry over you. These are the lessons we are taught. These are the lessons and the obligations and the responsibilities we have to our people, to our place, and to this land. We cannot give those away, they are not for sale, they never have been for sale. We stand on those principles, and we stand before the Creator in that way.

Meegwech.

The Chair: Thank you very much.

I will take a few seconds to explain that everything you say is being instantaneously sent to Ottawa and being typed as you say it. So you're not just wasting your time here, it's on record. If you have documents, you can leave them also.

Dean Sayers.

Mr. Dean Sayers (As Individual): I'm from the Blue Heron Clan. My name is He Stands and Walks Tall and Takes Care of the Medicine. I'm from the Ojibway Nation, from the Batchewana territories along the north shore of Lake Superior, 300 miles north, 10 miles inland.

I am here after discussion with some of the elders who advised me in regard to our relationship with the Canadian government that has inherited fiduciary responsibilities. The way it was explained to me, we are a sovereign people. We signed treaties nation to nation with the Crown, with Britain. When Trudeau came back with the Constitution in 1982, he had assured the Queen that Canada had grown up and become responsible enough to become a big country and a big boy like the rest of the countries in the world and no longer needed to have the Queen sign all its notes. I don't think the Queen would be signing this particular bill. I think it's a degradation. As the Canadian people brought home the Constitution, the way the elders explained it to me, when there are agreements and treaties and there needs to be an interpretation, there in no way should be an abrogation or a derogation of the meaning of those treaties and those agreements, and when there is to be an interpretation, it is to be in favour of native people. This is not working for us. One of my elders said we should have pushed the boats back into the water.

I am a social worker. I work in 29 urban aboriginal communities across the province of Ontario, and the fallout is tremendous from the imposition of institutions, from residential schools, to the different religions that have been brought upon us, to educational systems that are alien to us. There have been many atrocities in our communities, and this act is another one of those institutions that will cause the demise--

The Chair: Thank you very much. I assure you, I don't take pleasure in cutting people off, but it may make you feel better to know, when the minister appeared before the committee, I had to cut him off twice. It's no fun being chair.

Patrick Lavalley.

Mr. Patrick Lavalley (As Individual): May I have the time allotted to the last two speakers? I am the only representative of the Neyaashiinigmiing unceded First Nation, and therefore require the ten minutes allotted to a nation.

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The Chair: You are burning your own two minutes as you go.

Mr. Patrick Lavalley: Welcome to the unceded Mississauga Anishinabek territory.

I am a victim of the mid- to late-20th-century Children's Aid scoop-up abductions. In the late 1990s I once voted for chief and council, and I felt pretty disgusted about it and had to take a shower afterwards, but I don't hold that against my band, because it is the only option open to us.

I want to answer some questions you posed to my brothers and sisters. First, our band members are the ones who keep our chiefs and councils in line. They don't need your help. Second, if you're to make any laws, please live up to the ones you've made in the last 300 years. It would be much appreciated. If you are going to make any new ones, please make it mandatory that you live up to these old laws.

I am a member of the Aboriginal Peoples Council of Toronto. I represent homeless aboriginal people in the GTA. Regardless of whether or not you think this act will get passed, I want to remind you that your ancestors thought the world was flat and you pronounced it for tens of thousands years, and it wasn't so.

Furthermore--

The Chair: Time's up.

Rosie Mosquito.

Ms. Rosie Mosquito (As Individual): The committee has been travelling across the country, and we're also told Minister Nault has total cabinet support and committee support on the 10,000 people who were presumably consulted during phase one. In Ontario there are 157,000 on- and off- reserve people: 445 were consulted, 0.03%, and yet Ontario has the largest status population of all of the provinces and territories of Canada. There were 25 hearings, 19 of which were off reserve; 14 of those 19 were conducted by the Ontario Métis and Aboriginal Association, and with all due respect, they have their own values and their own principles, but they do not represent the first nations of Ontario. Of the 157,000 first nation members in Ontario 53 were consulted, and 55 were federal aboriginal employees. Unfortunately, I am convinced that those federal aboriginal employees did not have a choice.

So you talk about consultation, but I don't believe that's consultation. It is truly and fundamentally flawed in Ontario. We do have our voices, and our voices are not being heard. The number of 10,000 consulted is being trumpeted by all the organs of the federal machinery.

The Chair: Thank you very much.

Kevin Daniels.

Mr. Kevin Daniels (As Individual): You don't want to know who I am. I'm the chairman of the committee on Caucasian affairs, and if I were to implement a Caucasian act, I would at least give you the opportunity to come forward with one, rather than presenting it and throwing it down your throats and saying, here's a Caucasian act for you, this is how you're going to live in my country. We're not like that. Hopefully, you will give us the opportunity to come forward with an aboriginal act of our own, an act in which we, as first nations peoples, would have the right to economic self-sufficiency, to get our people out of poverty, have the right to land. I still don't have the right to land. I have been a road allowance Indian, an Indian that wasn't welcome on Indian reserves, an Indian that wasn't welcome in the small towns. We are now back organizing in the urban centres right across this country, opposing the First Nations Governance Act.

I'm pretty familiar with the different committees that have been going around the country. I've been involved in politics for a long time. I think one of the biggest presentations I gave was during the first ministers conference on constitutional aboriginal matters, in which I stated to Prime Minister Brian Mulroney, in order to maintain the spirit of peace with Canada's aboriginal peoples, you are going to have to deal with our solutions to our problems. This is the key for maintaining the spirit of peace within Canadian Confederation. When I made that statement, I saw the anger and frustration of our aboriginal peoples outside. I saw it not only in 1985, but in 1987, during the last first ministers conference. And that anger and frustration continued. Not long after that the Oka crisis broke out.

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The Chair: Thank you very much.

Luke Nicholas.

Mr. Luke Nicholas (As Individual): Good afternoon.

I'm from the Onyota'a:ka first nations community. I am a 21-year-old student from London. At 18, I was one of the youngest to be elected to the council, and I am now serving my second term. I come to you today not to speak on the substantive provisions of Bill C-7, but more to implore you to consider the negative effects it will have on future generations. Our people have always considered that when making decisions with leadership. What will happen if we do this? What will happen if we make decisions today, and how will it affect tomorrow?

Today, as people who are ancient in this wisdom, we tell you that this will have many negative effects on our people. We need to maintain, and we have maintained, many of our social institutions, but this is a challenge and an obstacle that has been placed before us to keep up those social institutions of politics and education and family and all those other things that allow us to say sovereign. At first I was afraid when I heard of the Bill C-7, I thought it would bring many negative thing, but we were longhouse people before the white people got here, and we were longhouse people after the Indian Act was passed, we were longhouse people before Bill C-7, and we'll still be longhouse people after Bill C-7.

The Chair: Thank you very much. You can say a lot in a minute and a half.

Lisa Thundercloud.

Ms. Lisa Thundercloud (As Individual): I am a product of my environment. I am a human being dwelling here on planet earth, and I was giving thought one day about what's going on here. I just moved back home, and I found out what's going on here. There are going to be no more reservations.

I'm a fresh sponge. I take it all in. I figured out that you owe us our sovereign right. You guys have the whole North America continent, and you still won't just leave us alone. Just stop. Look up. Look around you. You think this is all going to be here in 100, 200 years? It's not going to be here, the way things are going. You still haven't figured it out. I'm going back into my hole and I'm going to figure this out. There's a solution to this. If you people will listen, there's a solution. We can all live at peace. Invite the whole world too. World peace, that's what you're trying to figure out, right? It's there, you just have to stop what you're doing for one day. Stop the whole world. It's there, right in front of you, and we're the ones trying to tell you this. It takes the people of this side to tell you there's an answer.

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The Chair: Thank you. That's why we came here to listen, and we appreciate your contribution.

John Bigeye.

Mr. John Bigeye (As Individual): I'm from Black Lake, Saskatchewan.

Welcome, my colonial brothers and sisters. I'd like you to understand that in a spiritual world these demands would not be there. You guys have to learn to think with your eyes closed, to see with your hearts open. After all of this discretion and misinterpreting of who we are as a people, there's always going to be another fight. The ones who are not shy are there to listen, the ones who are scared talk. There is nothing easy in this world that you can gain, but once you rape a people, prepare to be raped back. That is no threat, that is a common solution. In my world I am not happy to see what I see today. I want an education, and today I'm going to get my education. If you try to stop me, I'll find other ways to succeed. I have nothing more to share with you. From now on I'm a free agent, I'm your landlord.

The Chair: Thank you very much.

Merie Rita Anderson.

Ms. Merie Rita Anderson (As Individual): Thank you very much.

I'd like to address the meeting about our grievances on Indian issues. Lots of Indians don't have proper housing, some Indians don't even have a warm bed to sleep in or their children to laugh and play with. I waited three fruitless years to get into housing on my reserve. Finally, I just decided to build my own house. I'm just one fortunate Indian- huh! They moved us off our land with the promise of new housing, but moved on themselves--a treaty they broke long ago. We lost all our houses, and as you know, land is expensive. It gets cold in the winter. People may hunt and fish, but sell their catch just to pay the rent.

I don't speak Indian, since I came to Toronto when I was six years old. They cut our forests, they cut our trees down, and the animals died. I was tortured, because I was held in residential school. I had many beatings at the hands of the schoolmasters there. Every time I spoke Indian, I was punished. I was tied to a bed for days and days. My uncle Graham came and got me one night. I was 32 by then, and I haven't looked back. We have a casino on our reserve, and it's happening for us. I call it the monster, because it polluted the lake. We need money, though, for heat, food, housing, and rent. We're supposed to be getting money, but the other Indians don't want Rama to have it, I guess because they're almost as desperate as us.

It's sad for us brothers and sisters to fight when the problem is so deep and widespread. Let's get together, speak our minds, and fight this dilemma, and keep on fighting until results come and something is done. Soon the buffalo will be gone. White man cuts the trees, all the animals will die. Not that it's the white man's fault, it's just plain ignorance. Maybe they will take our status cards, maybe our daughters--horrible thought. My name is Merie, and I'm proud of my heritage and proud to be Indian. Oh yes, the Indians in Akwesasne lost your fight.

Thank you sincerely.

The Chair: Thank you very much.

This completes out hearings in Toronto. Being a member of this committee is not an easy job. In our travels we, the ones sitting here, take a lot of abuse, and we don't fight back. We know the comments are directed to governments. This is not the government, this is not a committee of the minister or the Prime Minister or of the government, but a committee of the House of Commons. We take the abuse on their behalf. I'm being very serious, because this committee is taking seriously the work we're doing, and we pledge to you that in spite of everything, we will do the best job we can, and we do care.

Thank you very much.