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37th PARLIAMENT, 2nd SESSION

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

EVIDENCE

CONTENTS

Wednesday, September 17, 2003

1535

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

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

The Chair

Mr. Charles Hubbard (Miramichi, Lib.)

The Chair

Mr. Yvan Loubier

1540

The Chair

Mr. Joe Comartin (Windsor—St. Clair, NDP)

The Chair

Mr. Yvan Loubier

The Chair

Mr. Charles Hubbard

Mr. Paul Salembier (Senior Counsel, Department of Indian Affairs and Northern Development)

The Chair

Mr. Yvan Loubier

1545

Mr. Paul Salembier

The Chair

Mr. Joe Comartin

Mr. Paul Salembier

Mr. Joe Comartin

Mr. Paul Salembier

Mr. Joe Comartin

Mr. Paul Salembier

Mr. Joe Comartin

Mr. Gordon Shanks (Assistant Deputy Minister, Economic Development and Special Initiatives, Department of Indian Affairs and Northern Development)

1550

Mr. Joe Comartin

The Chair

Mr. Stuart Swanson (Director, Special Initiatives, Department of Indian Affairs and Northern Development)

Mr. Joe Comartin

Mr. Stuart Swanson

Mr. Joe Comartin

Mr. Stuart Swanson

Mr. Joe Comartin

Mr. Stuart Swanson

Mr. Joe Comartin

Mr. Gordon Shanks

Mr. Joe Comartin

Mr. Gordon Shanks

Mr. Joe Comartin

Mr. Gordon Shanks

1555

Mr. Joe Comartin

Mr. Gordon Shanks

Mr. Joe Comartin

Mr. Gordon Shanks

Mr. Joe Comartin

Mr. Gordon Shanks

Mr. Joe Comartin

Mr. Stuart Swanson

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

1600

1605

The Chair

Mr. Joe Comartin

1610

1615

The Chair

Mr. Charles Hubbard

The Chair

Mr. Yvan Loubier

1620

The Chair

Mr. Gordon Shanks

Mr. Yvan Loubier

Mr. Gordon Shanks

The Chair

Mr. Yvan Loubier

1625

The Chair

Mr. Gordon Shanks

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Joe Comartin

Mr. Gordon Shanks

Mr. Joe Comartin

Mr. Gordon Shanks

Mr. Joe Comartin

1630

1635

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Yvan Loubier

The Chair

Mr. Gordon Shanks

Mr. Yvan Loubier

1640

The Chair

Mr. Gordon Shanks

The Chair

Mr. Yvan Loubier

1645

The Chair

Mr. Joe Comartin

Mr. Stuart Swanson

Mr. Joe Comartin

Mr. Stuart Swanson

Mr. Joe Comartin

Mr. Paul Salembier

Mr. Joe Comartin

Mr. Paul Salembier

Mr. Joe Comartin

Mr. Paul Salembier

Mr. Joe Comartin

Mr. Gordon Shanks

Mr. Joe Comartin

Mr. Paul Salembier

Mr. Joe Comartin

Mr. Paul Salembier

Mr. Joe Comartin

1650

Mr. Paul Salembier

Mr. Joe Comartin

Mr. Paul Salembier

Mr. Joe Comartin

Mr. Paul Salembier

Mr. Joe Comartin

Mr. Stuart Swanson

Mr. Joe Comartin

Mr. Stuart Swanson

Mr. Joe Comartin

Mr. Stuart Swanson

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

Mr. Gordon Shanks

Mr. Joe Comartin

Mr. Gordon Shanks

Mr. Joe Comartin

1655

The Chair

Mr. Joe Comartin

Mr. Paul Salembier

Mr. Stuart Swanson

Mr. Joe Comartin

Mr. Stuart Swanson

Mr. Joe Comartin

Mr. Stuart Swanson

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

Mr. Gordon Shanks

Mr. Joe Comartin

Mr. Gordon Shanks

Mr. Joe Comartin

Mr. Gordon Shanks

Mr. Joe Comartin

1700

The Chair

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

Mr. Gordon Shanks

Mr. Maurice Vellacott

Mr. Gordon Shanks

Mr. Maurice Vellacott

Mr. Gordon Shanks

The Chair

Mr. Guy St-Julien (Abitibi—Baie-James—Nunavik, Lib.)

The Chair

Mr. Yvan Loubier

1705

Mr. Gordon Shanks

Mr. Yvan Loubier

Mr. Gordon Shanks

Mr. Yvan Loubier

Mr. Gordon Shanks

Mr. Yvan Loubier

The Chair

M. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

1710

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

1715

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

1720

Mr. Stuart Swanson

Mr. Joe Comartin

Mr. Stuart Swanson

Mr. Joe Comartin

Mr. Stuart Swanson

Mr. Gordon Shanks

Mr. Joe Comartin

The Chair

Mr. Joe Comartin

The Chair

Mr. Gordon Shanks

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

1725

Mr. Gordon Shanks

Mr. Yvan Loubier

Mr. Gordon Shanks

Mr. Yvan Loubier

Mr. Gordon Shanks

Mr. Yvan Loubier

Mr. Gordon Shanks

Mr. Yvan Loubier

1730

Mr. Gordon Shanks

The Chair

Mr. Joe Comartin

The Chair

CANADA

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

NUMBER 086

2nd SESSION

37th PARLIAMENT

EVIDENCE

Wednesday, September 17, 2003

[Recorded by Electronic Apparatus]

¹ (1535)

[English]

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

Pursuant to the order of reference of Tuesday, February 25, 2003, we are meeting today on Bill C-19, an act to provide for real property taxation powers of first nations, to create a First Nations Tax Commission, First Nations Financial Management Board, First Nations Finance Authority and First Nations Statistical Institute and to make consequential amendments to other acts.

Colleagues, yesterday we did some of our work. We are approaching clause 15. However, before we go on to the clause-by-clause, I'll tell you that when we adjourned yesterday there was an attempt at inviting guests in exchange for ending a filibuster or whatever it was that was going on yesterday. Does anyone have anything to report on that attempt?

Monsieur Loubier.

[Translation]

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

As you mentioned, yesterday I moved that we suspend the proceedings, the vote, and, consequently, the analysis of Bill C-19, and that there be discussions between Mr. Hubbard and various representatives of the opposition party as a prerequisite to resumption of this analysis and the vote.

Pat Martin, Mr. Hubbard and I had a meeting yesterday and agreed that Mr. Hubbard would approach the Assembly of the First Nations so that we could receive Phil Fontaine, National Chief, a representative of the executive or an elected representative of the Assembly of First Nations.

Mr. Hubbard called me back during the afternoon and asked me to approach the Assembly myself, saying that there was unanimous agreement among committee members that Mr. Fontaine or one of his representatives should be invited here for 45 minutes before we resumed our proceedings.

I approached the Assembly of First Nations but received no reply. I called Mr. Hubbard back and said that I had only reached voice mail boxes and no political spokesperson.

Mr. Hubbard was to report back to us today on his own efforts, and I informed him that he might be in a better position to convince the people of the Assembly of First Nations to come here, in view of the particular ties between Phil Fontaine and himself. He was to report back to me this morning. I don't yet have any information, but I told Mr. Hubbard that, as I had understood it, we needed a representative of the Assembly of First Nations to come here and explain their point of view. We have heard two viewpoints to date. The first is related to last year's resolution, which was against Bill C-19, and, according to the second, the officers of the Assembly of First Nations say that Mr. Fontaine is in agreement, though without saying it publicly.

I think it is important to obtain clarification before going ahead with the clause-by-clause consideration.

Mr. Hubbard, I would ask you to tell us where matters stand so that we can decide on our attitude toward Bill C-19.

The Chair: Thank you, Mr. Loubier.

Mr. Hubbard, you have the floor.

[English]

Mr. Charles Hubbard (Miramichi, Lib.): Thank you, Mr. Chair.

The report would be similar to what the honourable member has already stated. It was discussed yesterday afternoon among our party, the NDP, and the Bloc. I offered that we would attempt to have unanimous consent if the grand chief were available. I referred that back to Mr. Loubier, because it was his suggestion, and stated that if he were to invite the grand chief to come, we certainly would attempt to see that there was consent to hear him for 45 minutes to an hour.

But the report came back, as Mr. Loubier has already indicated, that the grand chief was on his way to meetings out west. Mr. Loubier indicated that some other elected official could come. That certainly caused me to reflect on what elected official from AFN could or would come, and it was left at that point.

So I think we can only proceed, Mr. Chair, as we were doing yesterday. We certainly offered this opportunity, but in view of the complexity of the matter, I think as a committee we have to proceed with the work as we were doing it.

The Chair: So we'll resume procedures as we were doing them yesterday. What I'm saying is that there was no agreement, and as I said yesterday, we'll attempt an agreement so that we can move on faster. Unless we can move faster, to me it means there's no agreement, and I go back to the way we were doing it.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, it's not that there wasn't any agreement. It's that, yesterday, when I sought to suspend proceedings in the first part of my motion, it seemed inconceivable to me that we could vote on a clause-by-clause basis on Bill C-19 without knowing the opinion of the Assembly of First Nations. We were unable to reach Mr. Fontaine or other elected members of the Assembly of First Nations. We were unable to reach them so that they could appear here today, but I believed I understood that we could suspend clause-by-clause consideration and the vote on Bill C-19 until the National Chief or one of his spokespersons could appear before us. That's what I had understood. It is indeed quite inconceivable that we can study this bill without obtaining the latest view of the Assembly of First Nations following Mr. Fontaine's election this past summer. I feel I'm missing an important piece of the puzzle before stating my view on this bill. I don't know whether my colleagues have the same impression, but I'm telling you what I feel.

¹ (1540)

[English]

The Chair: Merci, Monsieur Loubier.

Mr. Comartin.

Mr. Joe Comartin (Windsor—St. Clair, NDP): Well, from what Mr. Martin has passed on to me, it confirms what you've heard from Mr. Hubbard and Mr. Loubier. However, I want to be clear that we stand in a position of still wanting to have someone come from the AFN to indicate whether there has been a shift in their position with regard to Bill C-19. We have not been able to obtain the services of someone to do that, at least this week.

I want to indicate, Mr. Chair, that we are going to pursue this, as is Mr. Loubier. If that situation changes and we feel that someone can come in order to better explain to the committee whether in fact there's been a shift in position, then we'll advise you and Mr. Hubbard and take whatever appropriate action from there.

The Chair: That's fine. In the meantime, I will continue with clause-by-clause. And as you know, you have the option at any time to move adjournment.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, I want to make a motion. I haven't been speaking aimlessly for the past 10 minutes.

I move that we suspend the clause-by-clause consideration and vote on Bill C-19 until we have heard a representative of the First Nations here. All the staff of the Assembly of First Nations are here, but there isn't a single elected member. I can't conceive that we can continue the clause-by-clause consideration of the bill without an elected member of the Assembly of First Nations being here.

So I put that motion. It shouldn't take very long. I can't believe that no elected person from the Assembly of First Nations is available to come and give us the viewpoint of Mr. Fontaine and the Assembly. I therefore move that we suspend the clause-by-clause and vote on Bill C-19 until a representative of the Assembly of First Nations has appeared before us for 45 minutes. We had an agreement on that point yesterday.

The Chair: A motion to suspend cannot be debated. I therefore put it immediately to a vote.

[English]

There is a motion to suspend proceedings until we have feedback from AFN representatives. There is no debate on adjournment or suspension, so I will put it immediately to the vote.

(Motion negatived)

The Chair: We are now in a position to ask, shall clause 15 carry?

(Clause 15 agreed to on division)

(On clause 16--When agent of Her Majesty)

The Chair: I refer you to page 42, amendment G-5.

Mr. Hubbard.

Mr. Charles Hubbard: Mr. Chair, with amendment G-5 we add a subclause to clause 16. It thus would read, following the current wording in clause 16:

(2) For the purpose of subsection (1), the issuance of a certificate referred to in paragraph 30(2)(b)

--this will come up later--

is deemed not to be an approval of a local revenue law.

Paul, would you like to comment on that for us?

Mr. Paul Salembier (Senior Counsel, Department of Indian Affairs and Northern Development): Sure. As you pointed out, this amendment adds a subclause. It refers to a certificate that it is proposed would be issued by the commission under an amendment to clause 30, which this committee will be looking at in a couple of moments. Under clause 30, that certificate would certify that all requirements of the act have been met in respect of a law that authorizes a first nation to borrow from the First Nations Finance Authority.

Now, one of the criteria for approving such a law is that the first nation has, in clause 30, “unutilized borrowing capacity”. That is something of a commercial judgment. It's a non-governmental function of the commission. Therefore, this is saying that in fulfilling that non-governmental function, the commission is not acting as an agent of the Crown.

The Chair: Any debate?

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: I have a question. I would like someone to explain to me what this means. Section 16 states:

16. The Commission is an agent of Her Majesty only for the approval of local revenue laws.

What does that mean? What obligations does that entail for the Commission? What is the role of Her Majesty or the government with respect to that Commission, which we want to be a strictly Aboriginal commission?

¹ (1545)

[English]

Mr. Paul Salembier: In the view of the government, the making of a law by the first nation is a legislative function. Therefore, the approval of such a law is also a governmental function. So the government recognizes that although the commission is managed by a board of directors that operates at a distance from the Crown in improving local revenue laws, they are in fact engaging in a governmental function, in fact the same function that the Minister of Indian Affairs performs now under section 83 of the Indian Act.

This recognizes that this is a governmental function, but it's saying the other functions of the board, in offering advice or certifying borrowing capacity, for example--in other words, the commercial viability of a first nation's finances--are not governmental functions, and therefore they're not acting as an agent of the Crown.

[Translation]

The Chair: Thank you, Mr. Loubier.

[English]

Before I go to Mr. Comartin, for the benefit of colleagues, we will proceed until the vote and we will not come back after the vote. It was my desire to go all night tonight and get this over with, but I developed a little bit of generosity, which is not common with me. We'd ordered food and we can't cancel it, so it will be coming in at five. We'll have a chance to eat that.

After Mr. Comartin finishes, I will be asking our officials about the effect on G-6 of passing G-5.

Mr. Comartin, you know the rules. You have ten minutes, so I'm sure you'll have lots of time.

Mr. Joe Comartin: Merci, monsieur le président.

I'm not clear on how this sits in terms of consistency with other commissions that in fact would be treated as agents of Her Majesty. Are there any elsewhere in the government structure, or is this an exceptional situation where we're setting up the commission and then not treating them as a full agent of Her Majesty but only for this one purpose?

Mr. Paul Salembier: Whether a commission will be an agent of Her Majesty is going to depend on a number of factors--the degree of ministerial control over the agency, reporting relationships, and everything else. Those are all determined on a case-by-case basis. I wouldn't want to speculate in respect of any given agency as to whether it is or isn't, because the criteria are somewhat complex.

What we're saying by statute, basically, is that notwithstanding all of these common law criteria that a court might otherwise apply in determining agency, it's an agent only for this purpose, hence it's not an agent for any other purpose. That will sort of oust those common law criteria that might otherwise attempt to be applied.

Mr. Joe Comartin: I understand what you're attempting to do, but I'm trying to find out where it fits into the governmental pattern. What other precedents are there for doing this?

Mr. Paul Salembier: So you're asking if there are other agencies that aren't agents of the Crown?

Mr. Joe Comartin: Yes.

Mr. Paul Salembier: I'd have to check into that and get back to you on it.

Mr. Joe Comartin: Okay. Perhaps you could pass that back to the committee before we get through the balance of the bill.

Was there any consideration at any time of extending the authority beyond just this one, so they would be an agent not just for the approval of local revenue laws but for other purposes of the commission?

Mr. Gordon Shanks (Assistant Deputy Minister, Economic Development and Special Initiatives, Department of Indian Affairs and Northern Development): Mr. Chairman, I think the essential objective of setting up these institutions is to create as much independence as possible from the Crown. In this instance, as Mr. Salembier has pointed out, the tax commission performs a governmental function when it actually approves laws, but other than that, it is independent of government. So the essential objective was to minimize the aspects where it would be an agent of the Crown.

¹ (1550)

Mr. Joe Comartin: I just have one more on this in terms of government structure. Can you tell me what other examples there are within the public service or the government structure of a commission like this being set up? What would be the closest one?

The Chair: Mr. Swanson.

Mr. Stuart Swanson (Director, Special Initiatives, Department of Indian Affairs and Northern Development): Thank you.

In developing the proposal in consultation with Treasury Board officials in particular, we looked at a number of different models for non-governmental organizations. The one that was particularly interesting was under the Canada Marine Act, whereby they created new types of port corporations and public harbours. In these particular cases the objective of that act was to allow the federal government to work with other levels of government, be they municipal governments...also with industry, to recognize that the port had a role in the national transportation system but also a role in the local economy and in the supporting of industries. So it brought various parties together in this matter, and we were referred to that as one interesting model. In that particular case the port corporations that are created play some role as agents to the Crown; in other cases they do not function in that manner.

Mr. Joe Comartin: In that model would they have had, for lack of a better term, a taxing authority, or--I'm looking at the model we have here--would they simply have had the board that's established further on in the legislation, or did it have both a commission and a board?

Mr. Stuart Swanson: It had a board, but the boards had a substantial role in supporting the development of an economically self-sufficient harbour. While they didn't have taxation powers, they did have a substantial role in setting fees that would be charged to users of the port, the shipping industry, etc.

Mr. Joe Comartin: But they just had the one structure. They didn't have a commission; they only had the board.

Mr. Stuart Swanson: They had the board. Now, the board consists of a series of directors. In this case we have a commission consisting of a series of commissioners. They both have decision-making roles that bring together parties that have a direct interest in the operation of that function.

Mr. Joe Comartin: Is there any other similar situation in the Government of Canada where you have both a commission with some taxing power and a board of directors, or is this unique?

Mr. Stuart Swanson: In the case of a commission, the commission's mandate involves certain regulatory functions, in this case the operation of a tax system. In the case of the harbours, of which I spoke, you have a board. Boards aren't regulatory in nature, but they have a significant role in the effective operation of that mandate.

Mr. Joe Comartin: I'm sorry, Mr. Swanson, I just want to be really clear in this. If I understand what you're telling me, this is unique. There is no other framework anyplace in the Government of Canada that has both a commission that allows the commission to tax and then a board of directors. That does not exist in the public arena of Canada at this point.

Mr. Gordon Shanks: I think, Mr. Chairman, we should clarify it. There is only a commission. The First Nations Tax Commission is made up of commissioners, so that is the board of directors of the commission. There is only the commission.

The legislation sets up other boards like the financial management board, but that is a distinct institution from the tax commission; it performs quite a separate role and it doesn't tax.

Mr. Joe Comartin: I understand that. This situation is one where you're going to have the commissioners involved in making decisions about taxing, but you're also going to have a board of directors making other decisions, not taxing decisions. I understand.

Mr. Gordon Shanks: They're the same people, though. There's only one commission.

Mr. Joe Comartin: I'm sorry, I didn't appreciate that from my review of the legislation.

Mr. Gordon Shanks: Yes, there is the tax commission. It performs a variety of functions. Some of them are of a governmental nature, some of them aren't, but it's the same commission.

¹ (1555)

Mr. Joe Comartin: The board that's set up under part 3 of the bill is going to be made up of exactly the same people as the tax commissioners?

Mr. Gordon Shanks: Part 3 sets up another institution, which is the First Nations Financial Management Board. It is a separate institution. This legislation sets up four institutions, and they're distinct.

Mr. Joe Comartin: So it's back to my basic question. Do we have any model like this anywhere else?

Mr. Gordon Shanks: I think what Mr. Swanson was saying is that in the ports area you have organizations that perform both roles, as does the tax commission. They have a role in identifying the financial aspects of ports as well as non-governmental aspects. So that's a similar model.

Mr. Joe Comartin: But that board is only one body?

Mr. Gordon Shanks: That's right, and it's the same here. The tax commission is only one body. We can't confuse the tax commission and the financial management board; they are separate institutions. When we get to the financial management board we can explain its role, but it's quite distinct from the tax commission.

Mr. Joe Comartin: I understand the distinction between them, but I'm not sure I see that there is any close analogy with the port authority or the--

Mr. Stuart Swanson: The point I was trying to make, sir, with regard to port authorities is that you have a type of arm's length organization that operates as an agent of the Crown in some instances and not as an agent of the Crown in other instances.

The other point, perhaps for clarity, is that thee First Nations Tax Commission does not have tax powers itself; those reside with first nations. They have the right to make the tax law. It's only the commission...to review those, approve them.

The Chair: Thank you, Mr. Comartin.

We shall vote on amendment G-5 on page 42.

(Amendment agreed to on division)

[Translation]

Mr. Yvan Loubier: Mr. Chairman, I would like to debate...

You told me we were on clause 17?

The Chair: No, clause 16.

Mr. Yvan Loubier: Pardon me.

[English]

The Chair: Okay.

(Clause 16 as amended agreed to on division)

(On clause 17--Appointment of Chief Commissioner)

The Chair: Mr. Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, it's precisely because of this kind of clause that I would have liked to hear Mr. Fontaine or a newly elected member of the Assembly of First Nations testify. Subclause 17(1), which reads as follows:

(1) On the recommendation of the Minister, the Governor in Council shall appoint a Chief Commissioner and Deputy Chief Commissioner.

in no way gives the members of the First Nations the power to appoint the Chief Commissioner or Deputy Chief Commissioner, even though this is a bill that should grant this type of power in accordance with the inherent right of self-government and the right of Aboriginals to govern themselves. It is the Minister who makes recommendations to the Governor in Council, thus to Cabinet, with respect to the appointment of the Chief Commissioner and Deputy Chief Commissioner.

I'm a bit surprised that it is being rumored, without actually being stated out loud, that Mr. Fontaine agrees on this kind of clause. Mr. Fontaine has said on a number of occasions that he disagreed with the government's bill. You can't say at the same time that you oppose the government's bill, because it does not respect the inherent right of self-government and perpetuates a system in which the First Nations are subjugated, and find yourself with clause 17, which perpetuates the subjugation of the First Nations. That's impossible. Something somewhere isn't right.

I carefully read what was said during the leadership race within the Assembly of First Nations this past summer. However, I see no reference to C-19 in Mr. Fontaine's speech.

For that reason, Mr. Chairman, I think it is incongruous to have a clause here which is highly discriminatory toward the First Nations and implies that they are incapable of appointing their own Chief Commissioners or Deputy Chief Commissioners, as in the case of the First Nations Tax Commission.

The same problem arises in subclause 17(2), which provides:

(2) The Chief Commissioner and Deputy Chief Commissioner shall hold office during good behaviour for a term not exceeding five years, subject to removal by the Governor in Council at any time for cause.

That means not only that we appoint them, but also that we are giving ourselves the authority to remove them. It isn't the First Nations that are giving themselves the power to remove a Chief Commissioner or Deputy Chief Commissioner who is deemed to be an inadequate official of the Tax Commission; it's once again the Governor in Council that is the guardian with respect to the First Nations Tax Commission. I refer you to the Preamble, which suffers from the same problem as that observed in the analysis of Bill C-7. It states, for example:

Whereas:

the Government of Canada has adopted a policy recognizing the inherent right of self-government as an Aboriginal right and providing for the negotiation of self-government;

It's a very poor way to start things off by depriving the First Nations of this self-government when it comes to resolving the real issues, such as establishing a Tax Commission that will manage loans and perhaps grant additional powers to the First Nations--as they are being given very few--so that they can raise taxes and carry out work.

So I wonder once again, in view of this provision, how, when it comes to taking action, a link can be made between good will and the principles contained in the preamble and the drafting of the bill, whereas the Cabinet determines who will head this important First Nations Tax Commission.

Yesterday, before my bag containing my copy of the bill was stolen, I reread the clauses once again and observed that, if we had had elected representatives of the Assembly of First Nations before us--it's easy to bring together the employees of the Assembly of First Nations, as may be seen from the fact that they have all been here since yesterday, but it is harder to have an elected representative come here--we could have put this kind of question to them.

º (1600)

One senses that there has been a will, a movement for about five years--especially since the Erasmus-Dussault report appeared--which I think is incompatible with the fact that the first transfer of power to the First Nations in fact seems quite artificial, when you look at the selection of leaders. How can we say both that the First Nations are nations recognized in accordance with the definition of the United Nations and continue, as we have done in the context of other bills such as the Indian Act, which dates back more than 100 years, to appoint people on their behalf and to work on their behalf? It's stated that members of the First Nations may be appointed, but that that's not an obligation! The Governor in Council may appoint people to these commissions from the outside. There's no real difference between that and the old habit of appointing agents of the Indians and having ministers decide in the First Nations' stead.

I repeat what I said yesterday. I find it really unfortunate that we're undertaking the analysis of Bill C-19 in somewhat the same way as we analyzed Bill C-7. I'm not making any threats, although we broke all the filibusteric records during the analysis of Bill C-7. And we're quite proud of that because I'm convinced it's going to die on the Order Paper. There appears to be a prevailing frame of mind leading us to conduct a similar battle to that over Bill C-7. That's also related to the behaviour members may display here, that is to say analyzing with lightning speed, on a clause-by-clause basis, a bill that is not even one of the priorities of the new leader of the First Nations recently elected in July, according to my program. It's being said that we must absolutely pass this bill, and yet we find these kinds of inconsistencies in it! If the National Chief of the First Nations, or another elected member speaking on his behalf were here and we put the question to him, he would be forced to acknowledge that the fact that the Governor in Council appoints the Chief Commissioner, the Deputy Chief Commissioner and the members--we'll see that in clause 18 a little later--poses a problem, particularly if we think of the openmindedness which we have been expecting from the government since the report of the Royal Commission on Aboriginal Peoples was published.

I repeat, Mr. Chairman, that we should review the strategy in this regard, that is to say quickly passing each of the clauses in Bill C-19. I remind you that I have seen and reviewed the program of Mr. Fontaine and the Assembly of First Nations and that this is not a priority for him; at least it isn't presented as such. Why is it a priority for us, when we haven't heard any clarification from the Assembly of First Nations? The problem remains unsolved.

I can readily agree on certain principles of Bill C-19. I was trained as an economist, and I worked in the fields of municipal and provincial taxation before arriving on the federal scene. There are some positive things in this. Furthermore, we had the opportunity to discuss this in June, but some things also trouble me, trouble my conscience. If there was an elected person from the Assembly of First Nations around this table, we would be much more comfortable analyzing this bill on a clause-by-clause basis.

I'll toss the ball to you, Mr. Hubbard. I also tried to contact the Assembly of First Nations yesterday, and I reached no one. You did too, and I don't doubt your good faith. I nevertheless find it incongruous that, on the one hand, we can't find anyone from the Assembly of First Nations, whereas its representatives knew perfectly well that the bill was in the final consideration stage, and, on the other hand, we have no concern to wait until we can find someone to question them. We had agreed on a 45-minute period, and I found that suitable, but it's incongruous that the entire staff of the Assembly of First Nations is here.

º (1605)

So I'm going to vote against this clause because, once again, I think it proves that, despite the preambles and the nice speeches, the government has no intention of giving the First Nations the powers that are theirs by law, but wants to continue deciding for them, as was the case in Bill C-7.

The Chair: Thank you, Mr. Loubier.

[English]

Mr. Comartin.

Mr. Joe Comartin: On the surface, I just can't support this provision, given the resolutions we've seen from the AFN in the past. Also, it's not just what's in clause 17. When you go into the subsequent clauses, it's the role this commission is going to play and the importance of the chief commissioner and the deputy chief commissioner--the chief commissioner is a full-time position--in establishing policies on how the commission will conduct their rules, and the authority they will have to either approve or reject any local revenue law. There's the composition of the commission and the nature of the individuals who will be the chief commissioner and the deputy chief commissioner.

I have a hard time anticipating the first nations being prepared to accept, given the role the commission is going to play, that those positions should be filled from other than the first nations themselves. It's their nations and their revenue, and quite frankly, to a great extent, their development and future are going to lie in the hands of these individuals, particularly the chief commissioner and the deputy chief commissioner.

It's really interesting that right in clause 18 it's mandatory that of the three commissioners, one has to be a taxpayer using reserve lands for commercial purposes, one using reserve lands for residential purposes, and one using reserve lands for utility purposes. That's mandated in clause 18. The part I just quoted is from subclause 18(2). Subclause 18(5) indicates that the commission shall be composed of men and women from across Canada, including members of first nations. That could be as few as one person, in order to comply. It's worded in a very general way, whereas in subclause 18(2) it's mandated.

So we could end up with a situation where somebody from a utility company that's running a utility through the first nations lands ends up being the chief commissioner. It may not be somebody from the first nations.

So I have a really hard time, Mr. Chair, understanding any possible way that the first nations communities would be willing to accept clause 17 as prepared--it's the same probably for clause 18 and a few of the other provisions--because of the lack of involvement being mandated.

I think they would also find it offensive if any of these commissioners, and in particular any coming from the first nations communities, were not in some way recommended, vetted, or approved of by the AFN or other first nations communities directly, or perhaps elected by them. In any event, there should be some method of choosing so the first nations would either have control over or play a major role in the appointments of the commissioners, in particular the chief commissioner and the deputy chief commissioner.

This is not an insignificant role they are playing. To a significant degree, it's the essence of what the bill is about, in trying to establish these kinds of financial relationships. In many respects--I want to acknowledge this--the concept behind this is one that in a general way most first nations--from my discussions with them--would approve of. But this particular bill doesn't get them there, and it certainly does not allow them the control they deserve as first nations peoples.

º (1610)

I just want to say by way of background here that some of our former members from the NDP, Mr. Riis and Mr. Fulton, were somewhat instrumental in this by originally coming up with concepts of which part are in this bill. I think they will also, like the first nations, be very disturbed when they see the legislation and these types of clauses that in effect say to the first nations, this law is going to go ahead, we're going to appoint these commissioners, and we're going to appoint this chief commissioner and this deputy chief commissioner. It is not likely, I would have to think on a balance of probabilities, that these will be individuals from the first nations community in spite of the fact that this legislation, if it goes through and is implemented, is going to play a very significant role in the economic development--or lack of same--in first nations across this country.

Although I understand and in fact, I repeat, support the concepts of what is being attempted here, when you look at this kind of structure, you have to say there is no way first nations can accept this. In many respects, Mr. Chair, it's insulting that their people are not being placed in a priority position for appointments as commissioners. I would think in particular, given what has been dealt with in clause 17, that both those positions should always come from the first nations. Ultimately it's their money. They are the ones who should be in charge of it, not somebody who's running a gas line or a hydro line across their property, not somebody who is renting a home from them, and not somebody who is carrying on commercial activity on their lands. Those positions, again, are mandated in clause 18. There is no place where they're mandated other than in that very general section in subclause 18(5).

I believe, Mr. Chair, they would be strongly opposed to that. There is just no way we could support clause 17 as provided. I recognize the need to have a chief commissioner and a deputy chief commissioner. It's appropriate that the position be full-time, but it's even more important that the position be filled by somebody who is a member of the first nations community.

Thank you, Mr. Chair.

º (1615)

The Chair: Thank you, Mr. Comartin.

Mr. Hubbard.

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

I'm a bit concerned with some of the statements the honourable member said; for example, “when they see”. I think, Mr. Chair, this bill has been before the House and with committee for months.

Second, and I know the honourable member knows, we did have witnesses before committee, and I think that everybody across the country, in fact all leaders, had an opportunity to write to this committee to express the concerns he is attempting to bring to this table. Unless I'm informed otherwise, I don't think the clerk can say that letters have come in expressing concerns about the appointment of commissioners and some of the points about when we see. It has been very open legislation and opportunities have been there. I'm not sure if it's only a delaying tactic, but I think in good faith we have to proceed with the evidence we have before the committee.

Thank you, Mr. Chair.

The Chair: Thank you, Mr. Hubbard.

(Clause 17 agreed to on division)

(On clause 18--Appointment of commissioners)

The Chair: Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, earlier I was listening to my colleague the parliamentary secretary, who said that we had received witnesses and all the Aboriginal chiefs and that everyone had been able to state his views, but let's talk about that. When we conducted our consultations here, some Aboriginal chiefs agreed on Bill C-19, but a number of Aboriginal chiefs disagreed on the bill. Furthermore, the Assembly of First Nations, which represents all the First Nations of Canada, came out against Bill C-19. That's why we find ourselves in a situation where you can't say that and where I can't categorically state the contrary. Yesterday I thought it was a good idea to summon the Chief of the Assembly of First Nations or members of the Assembly of First Nations who have been elected since July so that we could clarify the situation. If we hadn't heard from them today, we could have done so tomorrow or next Monday. The picture has changed, and it would be interesting to know where we stand right now. It's as clear as mud, as the saying goes.

We have had representations for and against Bill C-19. A resolution was duly passed by the Assembly of First Nations last year officially opposing Bill C-19. Where do we stand right now? That's what we don't know. We might well be told, at Mr. Fontaine's office, that Mr. Fontaine agrees on Bill C-19, but he has never declared so publicly. It's only being presumed that Mr. Fontaine agrees on Bill C-19. Until I've heard an elected representative tell us that he agrees on something, I won't be able to claim that I know the present position of the Assembly of First Nations. A little more subtlety is required on this point than you have given in what you've just said.

In clause 18, there's the same problem as in clause 17, and the same problem as there was in Bill C-7. Clause 18(1) states:

18.(1) On the recommendation of the Minister, the Governor in Council shall appoint...

Not on the recommendation of the First Nations, but on the recommendation of the Minister

four commissioners to hold office during good behaviour for a term not exceeding five years, subject to removal by the Governor in Council at any time for cause.

We have a problem. I would have liked to put a specific question to Mr. Fontaine or to one of his elected members on this clause in particular. I don't want to presume anything, and I can't accuse either Mr. Fontaine or anyone else at the Assembly of First Nations, but could we presume that these kinds of clauses, which appeared in the same form in Bill C-7, which also referred to the power of the Minister, the Governor in Council, etc., which were opposed by all the First Nations in Canada, would be accepted today because the bill is called C-19, that the Governor in Council appoints not only the Chief Commissioner and Deputy Chief Commissioner, but also the four commissioners who hold office during good behaviour and determines whether they must be removed or not? It seems to me that it would be an interesting and intelligent question to put to the leaders of the Assembly of First Nations today. What was unacceptable in this form in Bill C-7 is just as unacceptable today.

I'm looking a little further on, and we have the same problem. Subclause 18(2) states:

(2) On the recommendation of the Minister, the Governor in Council shall appoint three additional commissioners for a term not exceeding five years.

Once again, it's the Minister who decides instead of the First Nations, from a list that he suggests to the Governor in Council, thus to Cabinet. No representative of the Aboriginal peoples has any word on the appointment of the Chief Commissioner, the Deputy Chief Commissioner or the three commissioners. It is stated a little further on that a commissioner will be appointed by those already appointed by the Governor in Council on the recommendation of the Minister of Indian and Northern Affairs Canada. In other words, I appoint you, you appoint me, he appoints himself, we appoint ourselves, you appoint yourselves.

Once again, those who will appoint the last commissioner won't be Aboriginals. We don't know who the Chief Commissioner or the Deputy Chief Commissioner will be; we don't know who the first three commissioners will be, but we know that the Governor in Council and the Minister will be the only ones to decide on the first two and the next three, who, together will appoint a fourth commissioner. Where then is the self-determination of the Aboriginal peoples referred to in the preamble and in the preamble of Bill C-7?

º (1620)

There is no Aboriginal self-government in something as important as the First Nations Tax Commission.

I have a question for Mr. Salembier, Mr. Shanks or Mr. Swanson. How can you explain why the government, on the one hand, recognizes the inherent right of self-government and, on the other hand, does not enable the First Nations to create their own institutions and to select their own leaders? You can't assert one thing and its opposite. There's something wrong somewhere.

[English]

The Chair: Mr. Shanks.

Mr. Gordon Shanks: Mr. Chairman, if the member will recall, when the minister was before the committee when this bill was first presented, that question was posed to him. He indicated that it was his view that clause 5 gave the government the capacity to choose the best possible members for the commission, and he firmly believed that there were many first nations and other aboriginal people fully capable of fulfilling these positions. It was clearly his intention that they would be filled--

[Translation]

Mr. Yvan Loubier: But, Mr. Shanks, how can you say that it is more capable and intelligent in selecting people who are qualified and that the members of the First Nations, regardless of clause 5, have neither the necessary intelligence nor the judgment necessary to choose their own leaders? That's what exasperates me in this bill and what exasperated me in Bill C-7, where it was even more obvious. Explain that to me.

[English]

Mr. Gordon Shanks: Mr. Chairman, I simply repeat, the minister's view is that this part of the bill provides the Governor in Council with the capacity to appoint the most appropriate members to the committee. The decision to place this in the bill in this manner was consciously taken, and the minister has responded to that point.

Thank you.

The Chair: I will say that it is not your job to defend the bill. It is your job to explain, and I accept your answer.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, I'm not asking him to man the barricades and try to trip me up; that's not what I'm trying to do. I'm trying to see the logic of the preamble like that of the preamble in Bill C-7, relative to the specific provisions of clauses 17 and 18, and you refer me to clause 5. You're telling me that the Governor in Council has the power to do so. Of course the Governor in Council has the power to do so. The Governor in Council has the power to do everything, Mr. Shanks. That's not my question. I'm asking you how you can reconcile a very clear government policy statement on recognition of the inherent right of self-government and, at the same time, invoke clause 5, which gives the Governor in Council the power to decide on everything instead of the First Nations.

It's a fairly bizarre situation. You can't recognize one thing and do its opposite. You can't just have principles. They have to be transposed to reality, to the concrete world, and we have clauses 17 and 18. How can this contradiction be explained?

º (1625)

[English]

The Chair: If you wish, you may address this, Mr. Shanks.

Mr. Gordon Shanks: I'll make an attempt.

I don't believe there is a contradiction. The members of the committee will recall that the commission does perform governmental functions. These are shared governance institutions that perform a number of public functions. Therefore, it was considered that it was appropriate that Governor in Council be the appointing body for the membership.

[Translation]

Mr. Yvan Loubier: How much time do I have left, Mr. Chairman?

The Chair: Forty seconds.

Mr. Yvan Loubier: I'll come back to this question later. The Preamble is too long.

[English]

The Chair: Mr. Comartin.

Mr. Joe Comartin: Thank you, Mr. Chair.

Can you tell me how it was determined for subclause 18(2) that the three positions that are mandated should be filled by someone who is using reserve lands for commercial purposes, someone for residential purposes, and someone for utility purposes?

Also, as a secondary question, were there any other sectors or groups of individuals who were considered?

Mr. Gordon Shanks: Mr. Chairman, the taxation that is being regulated here at this point in time is primarily on lands that are leased to non-first nations members. Under the current government structure on first nations, non-members do not have any capacity to influence the direction of those first nations governments. However, they are certainly affected by the decisions of those governments, so in creating the tax commission that approves the tax bylaws, the drafters felt it was important that there be the capacity for representation on the tax commission of groups that are the primary taxpayers on first nations lands. Those are primarily commercial users, utilities, and residential users; that's why those three groups were chosen.

These are in addition to four commissioners, the deputy commissioner, and the chief commissioner, who are appointed as well. These representatives are there because this is really the only place where they can have a voice in establishing the substance of the tax laws that will apply to their interests.

Mr. Joe Comartin: You use the term “taxpayer”, but as I see it, the relationship is a traditional commercial one between two parties entering into a contract to lease property. Why do we see these operations even if you're just renting the land for your residence? It's still a commercial relationship. How do they become taxpayers all of a sudden?

Mr. Gordon Shanks: They in fact pay taxes, though, and they are not members of the community. They are not in a traditional model where a homeowner paying taxes is also a voter. They are not in that situation; they are simply taxpayers. They have no capacity to influence the government that taxes them, so the tax commission that is given the authority to approve these laws has that representation on it.

Mr. Joe Comartin: Perhaps, Mr. Chair, I'll just make my statement. I just want to say for the record that I don't see the relationship that way. Given the nature of the relationship between these individuals, it seems to me it's just a straight commercial one that can be dealt with not in a democratic relationship of being able to vote or not but in terms of the negotiations that go on from time to time as they would in any other sphere of commercial activity. It seems to me that in this provision we're extending a right to the commercial party that I don't think exists in any other sector of our society.

But I think what is still most offensive in this clause was shown in some of the points I made, and I want to go back to them. In part I want to respond to Mr. Hubbard's suggestion--if I understood what he was saying--that somehow this issue is that the representation that's going to be on this commission is somehow one the first nations have accepted, and that we haven't heard at this committee other voices contrary to that. I just don't accept that this is necessarily the case.

I haven't sat through all the evidence and I can't speak with certainty, but I was looking at some of the notes we have here, in particular newspaper reports of the AFN meeting just in December 2002, when the then head of the AFN made it very clear, reflecting the will and voice of the AFN and complaining bitterly--I think this came out of a Canadian Press article--that they “decried Ottawa's sole authority to pick members for a commission that's supposed to be independent”. So we've had that and other material here from first nations where they've complained about there being nothing in this section, other than in subclause 18(5), which I've already referred to, that would require the minister to even consult with them.

It's a given, because of the history of our relationship, that we would expect at least that minimal consultation. I'd have to say to you that in terms of the discussions I've had with first nations over the years that we're way beyond, from their perspective, simple consultations. They want control and they are entitled to that control. Yet when we see how this commission is potentially being set up, I think any judge looking at subclauses 18(1) through 18(5) would say, well, okay, they can get away with appointing one first nation member. That could be the end result.

That's not something they're going to accept. There's no reason to expect that they would accept that kind of legislated structure that would exclude them from what are going to be some very crucial decisions and a crucial role in the overall structure of these financial institutions and in the relations that are being established in this legislation. They're not prepared any more to accept the patronizing, patriarchal Indian Act; they want that gone. They certainly don't want it replaced with legislation that doesn't advance their cause in that respect to any significant degree, and this certainly doesn't. They want to be at the table. They want to be in control. They have every right to be at the table and every right to be in control, and clause 18 just doesn't get them there, or even close.

I have to say this as well in response to Mr. Shanks' comments to Mr. Loubier about the best available people. That takes us, I guess, to subclause 18(5). The very fact that a minister would say that reminds me of those corporate leaders, all male, saying they just couldn't find any qualified women, so that's why they only had one woman on their board with 25 males. It's that attitude. When you hear that, the first thing that jumps to mind is the minister saying, well, there aren't any qualified first nations people, so that's why we have nine commissioners who aren't first nations community members.

º (1630)

When you look at subclause 18(5)--if I'm reading the wording in the proper sequence--it says, “including members of first nations, who are committed to the development of a system of first nations real property taxation and who have”--and this is the insulting part--“the experience or capacity to enable the Commission to fulfil its mandate.” That criterion is not in subclause 18(2), and those so-called taxpayers who are using reserve lands don't have to meet that criterion; first nations have to meet that criterion, and you have to ask why.

If you're going to put this other provision in for these three members, why shouldn't they have the same commitment, same experience, and same capacity? Why would you put that kind of criterion only on the first nations appointments? It's a rhetorical one.

Mr. Salembier, you've already been told by the chair to defend the minister. It's him I'm attacking, not you, as a resource to this committee.

º (1635)

The Chair: It's not an answer.

Mr. Joe Comartin: Well, I thought, Mr. Chair, we already had that ruling from you. If you're going to change your ruling and make these public servants into defenders of the minister, perhaps you should indicate that to the committee. I assume that wasn't your ruling.

The Chair: No, it wasn't. You asked a question.

Mr. Joe Comartin: I asked a rhetorical question.

The Chair: You wanted to know if it was to him. You said no, and I said he doesn't want an answer.

Mr. Joe Comartin: I would love to have an answer, but I would have to have it from the minister. It would only be a satisfactory answer if he explained how subclause 18(5) was justified.

The Chair: That completes your time. Thank you very much.

Others?

(Clause 18 agreed to on division)

(On clause 19--Status)

The Chair: Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, thank you for allowing me to speak.

Clause 19 is related to clauses 17 and 18 because it concerns the appointment and office of the Chief Commissioner. So I would like to come back to what Mr. Shanks said a little earlier. According to him, as the matter concerned organizations with government functions, the government, through the Governor in Council, had things to say, had a power of appointment recognized by clause 5. However, he's forgetting something. He's forgetting that, on the first page, Bill C-19 states that it is an Act

to provide for real property taxation powers of first nations, to create a First Nations Tax Commission, First Nations Financial Management Board, First Nations Finance Authority and First Nations Statistical Institute...

I would simply like him to give me his view on this matter. How can it be claimed, in light of the introduction to this bill, that powers have been devolved upon the First Nations for all the government functions referred to here, that is to say property taxation, a tax commission, a financial management board, how can we say that these are institutions that belong to the First Nations and, at the same time, not grant the powers that should be part of those institutions, the power to appoint the Chief Commissioner, the Deputy Chief Commissioner and the other members? It's beyond me. That's my question.

[English]

The Chair: Do you have a question?

Mr. Shanks.

Mr. Gordon Shanks: Well, Mr. Chairman, the bill certainly does provide for the real property taxation powers of first nations. That was in the first part of the bill that the committee has already discussed and approved. Clearly, each of the other parts does create the conditions that are set out in the purpose of the bill, so I don't believe there's any contradiction there at all.

[Translation]

Mr. Yvan Loubier: We can't talk about the First Nations Tax Commission, when, in light of what we've just seen in clauses 17, 18 and 19, it should be called the Governor in Council Tax Commission instead. It's the Governor in Council that's going to appoint the members of that commission. The First Nations have nothing to do with it. You surprised me a little earlier when you claimed that non-Aboriginals won't be able to influence Aboriginal decisions. Subclause 18(5) states:

(5) The Commission shall be composed of men and women from across Canada, including members of first nations...

The term “including” indicates that there may be other persons than members of the First Nations. If the appointments of the Governor in Council are made from a list presented by the Minister, and that list contains no representatives of the First Nations for the positions of Chief Commissioner, Deputy Chief Commissioner or Commissioner, that means that the person at the head of that Commission may not be an Aboriginal. How, once again, can you assert one thing and its opposite? You say that non-Aboriginals will have no influence on Aboriginals' decisions, whereas the door is open to appointments of non-Aboriginals to the head of the Commission.

I would like you to explain this situation for me because the expression “including members of First Nations” means that there may be non-Aboriginals.

º (1640)

[English]

The Chair: Mr. Shanks.

Mr. Gordon Shanks: Mr. Chairman, in answer to the other member, in terms of the influence, I said the taxpayers of the first nations themselves do not have the capacity to sit on the government that is taxing them. So the tax commission has been set up so those interests will have the capacity to have some influence over the tax laws provided, because the tax commission has to approve those laws.

In answer to your other question, again I'll repeat what the minister said. He indicated that the law before you was written to not preclude non-first nation members from being appointed, because the desire was to have the best possible candidates. But it was his view that there would be sufficient first nation candidates to fill all of the positions, and it was certainly his intent to ensure they were appointed that way.

I would just like to add a point of clarification. Subclause 18(5) certainly also applies to the appointments of subclause 18(2). The same criterion would be applied to anyone being appointed under subclause 18(2).

The Chair: Thank you.

[Translation]

Mr. Yvan Loubier: I understood, and that is not a problem for me.

I'm coming back to the question I asked you earlier. We can't say that we recognize the inherent right of self-government, when we find ourselves in a situation such as this, where the list that is presented... If my memory serves me, it was Ghislain Picard, when he came to make a presentation on behalf of the Assembly of First Nations this past June, as Deputy Chief of the Quebec region and Maritimes, who suggested major amendments with regard to the appointments. He suggested that the list of candidates for the positions of Chief Commissioner, Deputy Chief Commissioner and Commissioner be presented first and foremost by the First Nations and that the candidates for the positions be selected from among the persons named on that list. But that reference can't be found anywhere. It's the Minister and the Governor in Council that select the candidates.

I'm constantly coming back to this, but I believe it wouldn't be too late to temporarily stop the clause-by-clause analysis of this bill, which was not even the priority of the new Chief of the Assembly of First Nations when he conducted his campaign and was elected in July. Let's stop the clause-by-clause consideration and set it aside for a few days. We're not asking you for 55 days. We're asking you for a few days so that we can have the time to hear the voice of the Assembly of First Nations at this table.

I can put questions to Mr. Shanks, Mr. Swanson or Mr. Salembier all I want; they can't answer for the Assembly of First Nations. They often simply don't answer at all. This takes nothing away from their abilities, but there are questions which cannot be answered by a government employee. Elected people must answer. Mr. Fontaine was recently elected to the Assembly of First Nations, and others were elected with him. It would have been quite interesting to have their point of view.

Mr. Chairman, I ask you once again to intercede with your colleagues so that we can stop our consideration until Thursday. We could reach members of the Assembly of First Nations. I would be prepared to sit for 45 minutes or an hour on Thursday afternoon to hear them, and we could then proceed with passage of the bill on a clause-by-clause basis. As long as there's this grey area and we don't have the current views of the First Nations, we'll be in a kind of endless void because we have a number of versions.

The Assembly of First Nations passed a resolution nearly one year ago opposing Bill C-19. There are the representations made by the Assembly of First Nations in June; the Deputy Chief of the Assembly for the Maritimes and Quebec was opposed to Bill C-19 because it contained no in-depth amendments. We don't know where we stand. We hear rumours that Mr. Fontaine agrees. How can we know where we stand if there's no public statement by the new government of the Assembly of First Nations which was elected in July?

Bill C-19 contains all the technical and substantive defects that appeared in Bill C-7, and we hear the same answers from officials and even from the Minister. When the Minister appeared in May, his position on Bill C-19 was no different from the one he had advanced on Bill C-7. He said again that the government was the trustee of the Aboriginal nations and had to make decisions, that, as Minister, he had responsibilities and had to appoint the people most capable of performing certain duties.

In Bill C-7, the Minister and his comments showed the same underlying spirit. Bill C-19 is no different. Moreover its preamble is the same as that of Bill C-7. That's quite incredible. We had demolished the preamble to Bill C-7. Often when we raised arguments on clauses in Bill C-7, as we are raising today on clauses 17, 18 and 19, we were referred to the preamble, in which the inherent right of self-government was recognized. Yes, but the preamble has no force of law where the bill contains clauses as specific as clauses 17, 18 and 19.

º (1645)

The Chair: Thank you, Mr. Loubier.

[English]

Mr. Comartin.

Mr. Joe Comartin: Thank you, Mr. Chair.

I have a question--I'm not sure to whom. I don't think I missed this, but I didn't see anything in the bill that would allow any of the commissioners to become full time, other than the chief commissioner. Was that contemplated? Assuming this legislation goes into place and the commissioners are busier than part-time positions would allow, is there any provision in it for their appointments to be extended to full-time appointments?

Mr. Stuart Swanson: One position is full time, that's correct, but if the workload was such that commissioners were required to do extra work beyond what was anticipated in their job descriptions, that could be remunerated.

Mr. Joe Comartin: But they still would be part-time designates?

Mr. Stuart Swanson: They still would be part-time designates, yes.

Mr. Joe Comartin: Again, only because I didn't see this anyplace else, with regard to the chief commissioner, or I suppose even the part-time ones, is there any provision for removal, and if so, how would it be done?

Mr. Paul Salembier: The commissioners are appointed during good behaviour and may be removed for cause. That means they can only be removed, under the good behaviour part of the appointment, by a judicial proceeding, or by the Governor in Council on a proceeding for cause. That's the only way in which they can be removed.

Mr. Joe Comartin: What's the first way they could be removed?

Mr. Paul Salembier: Normally, you bring an application to court to have an appointee who was appointed on good behaviour removed. You need a court order.

Mr. Joe Comartin: And you'd be using cause as the basis for that removal.

Mr. Paul Salembier: One would assume, yes.

Mr. Joe Comartin: So we're falling back on the general common law rather than any specific provisions within the....

Mr. Gordon Shanks: In our provisions under subclause 17(2), you'll note it says “a term not exceeding five years, subject to removal by the Governor in Council at any time for cause”. Subclause 18(1) also points out that four commissioners “hold office during good behaviour for a term not exceeding five years, subject to removal by the Governor in Council at any time for cause”.So that is actually in the statute.

Mr. Joe Comartin: I'm assuming the application would be made to the Federal Court as opposed to...?

Mr. Paul Salembier: On good behaviour or for cause?

Mr. Joe Comartin: Either one of them.

Mr. Paul Salembier: There are two different procedures, actually. If your removal is by cause, normally what will happen is that allegations will be made to the Governor in Council and the appointee, or his or her lawyer, would be given an opportunity to respond to it. Based on that, the Governor in Council makes his decision. There are precedents for this that in fact have been upheld in challenges to court.

Mr. Joe Comartin: But that would all be at the Federal Court, not in the provincial court system.

º (1650)

Mr. Paul Salembier: Well, that in fact would just be the Governor in Council. It's only if the appointee later challenged it that they would probably go to Federal Court.

Mr. Joe Comartin: So in terms of the first nations playing any role, there wouldn't be any there. It would be the Governor in Council or the Federal Court.

Mr. Paul Salembier: If they were involved in allegations of misconduct, I guess they would make them known to the appropriate parties, and they would be followed up in due course.

Mr. Joe Comartin: But the decision-making would not involve them at all. They can make the allegations but they're not involved in the decision-making process.

Mr. Paul Salembier: That's right, yes.

Mr. Joe Comartin: I'm sorry, Mr. Swanson, I have to go back to something, because I'm not completely satisfied.

If the person is in effect working full time, the compensation would be based on.... I guess we don't have regulations yet on how they're going to be compensated. Would it be some kind of per diem rather than an annual salary?

Mr. Stuart Swanson: The manner of handling GIC appointments is set out by part of the Privy Council Office. They have rules that apply to any arm's length organization, and they apply in this case.

Beyond the clauses we have on who is appointed full time and part time, we have clause 21, which deals with remuneration. It's typical that if a director, a commissioner, etc., is required to perform duties beyond those contemplated, they can be remunerated for those.

Mr. Joe Comartin: Assuming the legislation is in place and they are in fact very busy, if we wanted to make additional full-time positions, that would require an amendment to the legislation.

Mr. Stuart Swanson: That's correct.

Mr. Joe Comartin: Has any estimate been made of time commitments here?

Mr. Stuart Swanson: Some business plans have been worked on tentatively to try to develop the organizational structure and to try to determine how many appointees would be required in order to get coverage across the country and thus bring forward many skill sets. So that's being done, but we don't have detailed estimates on time requirements.

Mr. Joe Comartin: Okay.

Those are all my questions, Mr. Chair.

The Chair: Thank you, Mr. Comartin.

(Clause 19 agreed to on division)

(On clause 20--Re-appointment)

The Chair: Do you wish to debate it?

Mr. Joe Comartin: Yes. Well, it's more of a question.

The Chair: Go ahead, Mr. Comartin.

Mr. Joe Comartin: Thank you.

Again, Mr. Shanks, probably to you, am I reading this properly that it's not just a second term but this would allow someone to be reappointed? I'm including in here the chief commissioner. There's no limit on how long the chief commissioner, or any of the other commissioners, can stay. They can serve out their term, be appointed a second time, and then be reappointed after the second term.

Mr. Gordon Shanks: That's correct.

Mr. Joe Comartin: So these positions, as with judges, could be for the full tenure of a person's work life.

Mr. Gordon Shanks: That's certainly possible. That piece was put into the legislation just to clarify that very point, so that it does not become something that's at issue.

Mr. Joe Comartin: I would just comment, then, Mr. Chairman, that it comes back to the concern of how the appointments are going to be made. When you look at this section, it certainly should give us all cause for second thought in terms of how the commissioners are being appointed, because once they are, just from past practice, the likelihood is that they're going to continue to be reappointed.

So even if...and I suppose I ought to say, out of a sense of fairness to the individuals who have been appointed in the first round, that if they want to be reappointed, the government is likely to do so. But if these first appointments are not, as one would hope they would be, entirely from the first nations, it could potentially be a very long time before we would have the opportunity to appoint people from the first nations, before a more “enlightened” minister, I'd have to say, is in place.

On that basis, I will be voting against this particular provision, in keeping with the overall provisions of this section on the tax commissioners.

Thank you.

º (1655)

The Chair: Thank you, Mr. Comartin.

(Clause 20 agreed to on division)

(On clause 21--Remuneration)

The Chair: Are you asking for the floor, Mr. Comartin?

Mr. Joe Comartin: Yes, I have a question for Mr. Swanson, since he had begun to get into clause 21.

Why is there a distinguishing here between the reimbursement for the chief commissioner and the other commissioners? It just sticks out that you're treating them differently in terms of the wording, and I can't see why you would do that.

Mr. Paul Salembier: Perhaps I can answer that.

In the bill, “commissioners” encompasses all of the commissioners. If you look at subclause 15(1), we say, “10 commissioners, including a Chief Commissioner and Deputy Chief Commissioner”. So when you see a reference to commissioners, that will be a reference to all commissioners, including the chief commissioner.

Mr. Stuart Swanson: Again, I might add that it relates to full time and part time. For the full-time chief commissioner, travel is related to their ordinary place of work, their full-time place of work. In the case of the part-time commissioner, it relates to their normal place of residence.

Mr. Joe Comartin: That probably will be covered more specifically in the regulations, the list of things that will be covered for the part-time commissioners.

Mr. Stuart Swanson: That's right.

Mr. Joe Comartin: Have those regulations been drafted yet?

Mr. Stuart Swanson: If they're not in regulations they'll be in policies.

Mr. Joe Comartin: That's all, Mr. Chair, thank you.

The Chair: Thank you, Mr. Comartin.

(Clause 21 agreed to on division)

The Chair: Do you want them all on division?

Mr. Joe Comartin: Yes.

The Chair: Okay.

We'll move to clause 22--

Mr. Joe Comartin: Mr. Chair, I should reserve that at some point we may want a recorded vote, but unless I indicate otherwise, I'd want it on division.

The Chair: If you don't indicate otherwise, I will call them on division. If you wish a recorded vote, you should mention it before I start counting the vote. I usually ask are we ready for the question, or shall it carry. Yell it out at that point, okay?

Mr. Joe Comartin: Thank you.

(Clauses 22 and 23 agreed to on division)

(On clause 24--Head Office)

The Chair: Mr. Comartin.

Mr. Joe Comartin: Could we have an explanation as to why Kamloops was chosen as the office? That's my first question.

Mr. Gordon Shanks: Mr. Chairman, as members will know, the First Nations Tax Commission is an evolution of the Indian Taxation Advisory Board, whose head office is now in Kamloops at the Kamloops reserve. As the institution transforms, it was felt for stability purposes that the head office should be retained there. It will also maintain an office in the national capital, as the Indian Taxation Advisory Board does now.

Mr. Joe Comartin: So it is maintaining the two existing sites.

Mr. Gordon Shanks: That's correct.

Mr. Joe Comartin: This is the same thing. I wasn't clear why there wouldn't have been a provision that at some point you may move it out of the national capital. There's no provision for that as there is with moving it out of Kamloops. I don't think it's beyond the pale to suggest that at some point, if we get too busy or it gets too expensive to have it in the national capital, we may want to move it to some other area of the country. Why would you not have provided that authority to the Governor in Council, as you have to enable it to be removed from Kamloops?

Mr. Gordon Shanks: I think the explanation at this point is that the expectation is that as a national institution it should retain an office in the national capital of Canada. At this point in time there is no contemplation that that won't be necessary. If it ever did come to pass, then I think it would require an amendment to the act.

Mr. Joe Comartin: Mr. Chair, perhaps I can make a few points.

I think it's interesting that you'd juxtapose the two positions. I think it is significant because it reflects the problem with the bill overall of just making the automatic assumption that it's going to be in the national capital when what first nations are striving to achieve from this government is a recognition of the significance of themselves as a nation. At some point they may very well say it's much more appropriate for this commission to be in this area of the country because that's where it's important for it to be from the perspective of first nations in this country.

If we ever find a government that's going to accept that kind of relationship with the first nations, it would require us to come back into the House, through committee and all the rest of it, to get an amendment. But we don't feel the same kind of compulsion to do that with the Kamloops site.

That's what's wrong with this bill, Mr. Chair. It's a reflection of the priority of this government, this level of government, and a reflection of the lack of significance it places in the other level of government, that of the first nations.

Thank you.

» (1700)

The Chair: Thank you.

Mr. Vellacott.

Mr. Maurice Vellacott (Saskatoon—Wanuskewin, Canadian Alliance): I'm kind of curious. It seems a bit pedantic to me to have mention even of a specific band there, the Kamloops Band in quotes there, when in fact it could simply read the head office or the commission shall be at such location as the Governor in- Council may determine. Does it have to even be in there? When that prerogative is with the Governor in Council, they can on a more ad hoc basis determine it's there, but why do we write it into the bill itself? Is it necessary? I guess that is my question. Is it not kind of pedantic when you consider what follows?

Mr. Gordon Shanks: The answer, Mr. Chairman, is that it's there because that is the head office of the Indian Taxation Advisory Board now. It's in the bill to demonstrate the evolution of that institution and to maintain the stability of that institution so people who are involved in the taxation area understand it is the intention of the government to maintain the current practice as much as possible and the head office would be retained there.

Mr. Maurice Vellacott: It's not to say that if you didn't have that specifically mentioned, it still could be there anyhow, right?

Mr. Gordon Shanks: That's correct.

Mr. Maurice Vellacott: It just provides some kind of didactic method of teaching, indicating that there's some continuity. Is that the point, then? Is that what you're saying?

Mr. Gordon Shanks: That's correct.

The Chair: Monsieur St-Julien.

[Translation]

Mr. Guy St-Julien (Abitibi—Baie-James—Nunavik, Lib.): Thank you, Mr. Chairman.

I'm concerned as well. I'm very satisfied when we talk about Kamloops. With the current means of communication, we can establish a national head office in Miramichi, a small municipality, for firearms control. I don't see why all offices should be established in the National Capital. If an office can be established in Kamloops, in the west, one can be set up on another Aboriginal reserve in the east.

These are competent people. When they're on the inside, give them the opportunity to grow.

There could be two national offices on two reserves. What are you going to do with the Commission's office in the National Capital? There's an Aboriginal office in Quebec City: it's so they can go shopping in the Grande Allée at lunch time. If an office was set up among Aboriginal people in Eastern Canada, we'd be in a better position to help them. Thank you.

[English]

The Chair: Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, I'm very sensitive to what Mr. St-Julien just said. I also very much appreciate the fact that the rural regions are being developed.

However, certain functions are more effective in major centres, particularly when it comes to finances, looking for partners and better conditions for medium- or long-term borrowing.

I'm going to put the question to Mr. Shanks like that. You said there was already a commission office in Kamloops. What presided over the creation of that office in Kamloops? Why was it set up in Kamloops, and why was the decision made to keep Kamloops as the choice for the Commission's office?

» (1705)

[English]

Mr. Gordon Shanks: Mr. Chairman, I don't know that I'm capable of giving you the full historic background except to explain the evolution of the tax system in first nations.

You will recall that the Indian Act was amended in 1988 to create the capacity for property taxation on reserves. It's referred to as the Kamloops amendment to the Indian Act. That is because the leader of the first nations that brought this about came from the Kamloops Band and has maintained that continuity over the past 15 years as the leader. The former chief of the Kamloops Band is the chairman of the Indian Taxation Advisory Board, and the head office of that institution had been established.

I'm not certain exactly why that came about, but that has been the evolution of it and that's why it's being maintained.

[Translation]

Mr. Yvan Loubier: Do you know who the chief was when Kamloops was selected? Who was the Aboriginal chief in Kamloops?

[English]

Mr. Gordon Shanks: Who was the chief of Kamloops Band at the time, sir? It was Chief Manny Jules. He was the chief at the time.

[Translation]

Mr. Yvan Loubier: Manny Jules, the Director of Human Resources at the Assembly of First Nations?

[English]

Mr. Gordon Shanks: He is now the chairman of the Indian Taxation Advisory Board. I'm not sure what his precise role may be with the AFN.

[Translation]

Mr. Yvan Loubier: That's quite something. You reward your friends, as the saying goes.

Mr. Chairman, I find it quite incongruous that the chief at the time determined the Commission's head office and that the decision was subsequently made to consolidate that decision in the bill. Could we have unanimous consent to prove that part in order to leave it up to the First Nations to select the place of the Tax Commission's head office? I find that quite incongruous.

The Chair: I'm going to ask the question.

M. Yvan Loubier: Yes, please.

[English]

The Chair: Monsieur Loubier is asking for unanimous consent to introduce an amendment at this time allowing--

[Translation]

Mr. Yvan Loubier: I'm going to be a little cruder. Why is it that the head office is in Kamloops, when the chief was Manny Jules, who sat on the Indian Taxation Advisory Board and is now on the Assembly of First Nations? I find the relationship quite curious. I find this kind of path a bit strange. I believe we should consider it twice. We should perhaps consider simply deleting this clause on the reference to the Commission's head office and leave a kind of freedom. We aren't required to say that it is up to the First Nations to choose the Commission's head office, but we should at least delete the reference, and that will be done quite naturally. We should resume a kind of process for determining the place where that Commission should sit. I find it utterly incongruous that the Commission's head office should be in Kamloops. It's quite curious. Thank you.

Mr. Chairman, would there be a way of obtaining unanimous consent to delete any reference to Kamloops?

The Chair: The only way would be to negative the clause by a majority of votes.

Mr. Yvan Loubier: All right, we'll proceed with the vote, but I find it quite strange. I'll stop my remarks, Mr. Chairman. I'm upset by this.

The Chair: Thank you.

[English]

(Clauses 24 and 25 agreed to on division)

(On Clause 26--Staff)

The Chair: Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, this clauses raises the same problems as clauses 17 and 18, in particular with respect to staff member selection. Since the Minister submits a list for the Chief Commissioner, the Deputy Chief Commissioner and the commissioners, and that this is accepted by the Governor in Council, which selects the candidates who hold the positions, there is, right from the outset, a kind of illegitimacy surrounding members who will sit on this Commission. It isn't the First Nations who will have selected the members of the First Nations Tax Commission.

If the process for selecting the top leaders and commissioners is illegitimate, I wonder whether the staff members have the necessary commitment to carry out those activities. Here the domination, the subjugation, is complete. Not only are the Commission's leaders selected by bodies other than those of the First Nations, but those people will select the staff themselves, determine their remuneration and define their duties. The First Nations will have nothing to say in the selection of the people who will work on the Commission.

Mr. Chairman, I can't help but repeat my request. I've just learned that we are resuming work on this bill next Monday. Couldn't Mr. Hubbard, as the person responsible and as parliamentary secretary, make another attempt to contact the Assembly of First Nations so that, on Monday, for example, just before we resume work, we can receive a representative of the Assembly of First Nations, who will tell us whether it is appropriate that the First Nations not select the top officials of the Tax Commission and, all the more so, that they not select their commissioners and that, in addition to that, all staff be selected by people who have not been chosen by the members of the First Nations?

If that's the case, we'll go home and let the matter drop. But if it's not the case, it must be known. I invite Mr. Hubbard to do so. Moreover, we agreed on this yesterday. You told me that you were prepared to fight to reserve 45 minutes for the Chief of the Assembly of First Nations.

Mr. Chairman, wouldn't there be a way to give Mr. Hubbard authority, as we did yesterday, for him to contact the First Nations so that, just before our work resumes--because we won't have the time to go through all the clauses before the vote today--we can receive people from the Assembly of First Nations to discuss the rest of the bill? We have gotten to clause 26; there remain another 80 clauses or more. Would there be a way of doing that, Mr. Chairman?

» (1710)

The Chair: No, because it's not your 10-minute period to debate the clause. You can discuss after the meeting. If at any point the committee votes, by a majority, to have anyone appear before it, I'll submit to the committee's wishes. We're currently proceeding with the clause-by-clause consideration, and this isn't the time to negotiate.

Mr. Yvan Loubier: I know, but we only have about 15 minutes left to decide, and today is Wednesday. That means that we would have three days to reach the Assembly of First Nations in order to receive someone on Monday.

The Chair: Mr. Loubier, nothing's preventing you from negotiating that after the meeting.

Mr. Yvan Loubier: How would I be able to obtain the unanimous consent of the members if we're not sitting?

» (1715)

The Chair: First we have to know whether they are willing and able to come. The thing would be to talk about it and to phone me. I'll gratify the committee.

I wonder whether the new chief has a mandate to give his opinion. Have there been any meetings? The Assembly of First Nations has declared a new chief.

I'm not interested in knowing what the chief thinks, but in what the entire council thinks. Have they met in order to change positions? I don't know.

However, we must proceed. As you see, we are on clause 25. Every minute counts.

Mr. Yvan Loubier: I know, Mr. Chairman. As you yourself mentioned, we are proceeding with consideration of the bill without knowing the present position of the Assembly of First Nations. The position of the Assembly of First Nations, which was voted on last year, was that it opposes Bill C-19. If that has changed, we should know it before passage, not afterwards. We should know whether the Assembly of First Nations has met, whether Phil Fontaine has brought his executive together, decided to change and is now in agreement on Bill C-19, or whether, on the contrary, they have maintained their position and are still opposed to Bill C-19. Otherwise we will have worked on the bill relying on people claiming that he agrees with Bill C-19, while having in hand a resolution that states the exact opposite, and we will have worked without really knowing the true point of view of the Assembly of First Nations. Perhaps we can simply ask them. If they aren't prepared to come here, let them tell us, but we can't afford not to invite them for Monday.

The Chair: Even if that appears to be a problem for Mr. Comartin and you, there's nothing preventing you from calling the new chief and discussing it with him directly.

Mr. Yvan Loubier: I called him.

The Chair: I'm not saying I'm not prepared to receive him. I'm going to submit to the committee's wishes. Right now we are in your 10-minute period. This is not the time to negotiate.

Mr. Yvan Loubier: I'm going to have my viewpoint accepted, Mr. Chairman.

The Chair: I understand. There's nothing preventing you, individually or as a group, from calling him or meeting him and trying to clarify certain points.

All I want is to finish this work.

Mr. Yvan Loubier: Admit that it would be better to receive him in committee. Everyone would benefit from it.

The Chair: We've discussed that a number of times and it was not accepted.

Mr. Yvan Loubier: I would like to talk to you later, Mr. Hubbard.

The Chair: I want you to talk to each other.

Mr. Yvan Loubier: You don't want to speak to me? But we were nice yesterday.

[English]

The Chair: Mr. Comartin.

Mr. Joe Comartin: Thank you. Mr. Chair.

Are we going right to 5:30? I thought the bells would have started ringing.

The Chair: I'd like to do that clause and then we can adjourn. It's my way of asking you to help me.

Mr. Joe Comartin: It's only that I would want to take my full 10 minutes on this one, Mr. Chair.

The Chair: You would want to or you would not?

Mr. Joe Comartin: I would.

The Chair: If you start now, it'll leave us five minutes to get to the vote.

Mr. Joe Comartin: Mr. Chair, what I'm really concerned about here is that this is the kind of provision that.... If this legislation were being driven by the first nations, we would be looking at it and saying we want all of the staff to come from the first nations. I think any lawyer looking at it would say we need a specific clause that says that. If necessary--and I think it may in fact be, depending on how staff is going to be transferred from existing bureaucracies to this commission--we may have to take into account the charter, given that it's not excluded here, and develop an affirmative action program, all of which would have to be done in this clause, obviously significantly expanded.

So that's probably what would happen if the first nations were driving this process. You in effect acknowledge the historic discrimination in hiring practices across this country and take into account the decisions we've had up to this point from our courts, the Supreme Court in particular, on affirmative action programs and the right of government to put those in place. All of that would be encompassed here. So it would have a provision that says these positions are reserved for members of the first nations, and if necessary, it would set out why it is necessary to do that, if at some point it's challenged on the basis of discriminatory practices. But you would need to do that.

By going the route we are going here, there is no legislative mandate or structure to put that course of action in place. Again, reflecting the historic and systemic discrimination that has been in the country around hiring practices, as well as in a number of other areas, it seems to me it would be necessary to do that. It would certainly be appropriate to do it. It's a course of action that I believe the first nations would want us to follow.

If I can turn to the staff, is it understood at this point that any staff hired for the commission would be coming from existing positions?

» (1720)

Mr. Stuart Swanson: There are transitional provisions in the bill. Clause 139 talks about existing staff of the Indian Taxation Advisory Board being brought forward. That recognizes that over the last 15 years a stable capacity has been built of knowledge and skills in order to deliver the real property tax system as it exists today. The hope was to provide some surety that those people would have an opportunity in the future.

Mr. Joe Comartin: Can you tell me how many of those are from first nations and how many are not?

Mr. Stuart Swanson: I'm not certain of that. There's a mix.

Mr. Joe Comartin: Are there any existing affirmative action programs within that workforce?

Mr. Stuart Swanson: I'm not certain of that. But there's a mix of people in that workforce.

Mr. Gordon Shanks: Mr. Chairman, I think we could obtain the information for the member.

Mr. Joe Comartin: I would appreciate receiving that.

The Chair: Please send the information to the clerk.

Mr. Joe Comartin: I asked for information earlier. That's always the case. We have to go through the clerk.

I think the response we got, Mr. Chair, confirms the point I'm trying to make about the necessity of that type of legislative structure. I'm not going to suggest that all of it would be contained directly in the legislation, but the basic authority needs to be in here. In looking at the balance of the bill, although I haven't covered it entirely, there are other times when that kind of approach needs to be taken. I don't see this government ever doing it, in terms of the way they've approached this legislation, unless we get that meaningful input and decision-making from the first nations across the country. If we don't do it, I think a very clear message goes out that we're not concerned enough about where they want to take their communities and that we're perpetuating the paternalistic approach that has undermined so much of our relationship with the first nations from the time the Indian Act was first passed.

Thank you, Mr. Chair.

The Chair: Thank you, Mr. Comartin.

Did you wish to add a comment? Mr. Shanks.

Mr. Gordon Shanks: Mr. Chairman, I have been advised that the Indian Taxation Advisory Board does have an affirmative action program for hiring and currently 70% of its employees are aboriginal persons.

The Chair: Thank you. That clears it up.

(Clause 26 agreed to on division)

(On Clause 27--Mandate)

[Translation]

Mr. Yvan Loubier: As I thought you had to stop after clause 26, I had already prepared... You didn't say that we would proceed with the vote after Mr. Comartin's remarks?

The Chair: I said I hoped to finish it; I'm going to try to finish another one. It appears we're going to be here for weeks. So I'm going to do what I can, in the way I can.

Mr. Yvan Loubier: We told you that, Mr. Chairman? I told you that, if we received someone from the Assembly of First Nations on Monday, there could well be developments.

The Chair: You aren't the only one. It wasn't you who caused problems yesterday.

Mr. Yvan Loubier: On the contrary, I was very open and very proper. Today matters are somewhat different, in view of the fact that the first condition was that a representative of the First Nations be present.

Mr. Chairman, we're on clause 27, aren't we? I would like to ask Mr. Shanks a question. The following sentence troubles me somewhat:

27. The purposes of the Commission are to:

(a) ensure the integrity of the system of first nations real property taxation and promote a common approach to first nations real property taxation nationwide...

As mentioned earlier, in clauses 17 and 18 in particular, members are appointed by the Governor in Council from a list presented by the Minister of Indian and Northern Affairs Canada. Those persons are not appointed by the First Nations. I mentioned to you earlier that subsection 18(5) states:

(5) The Commission shall be composed of men and women from across Canada, including...

There could also be non-Aboriginals. Let's imagine the worst, in this case that there isn't a single Aboriginal on the Commission. That could happen; in the past, we've seen things in the federal government that were not predictable but that were surprising once they were done.

It states that these people on the Commission will ensure the integrity of the system of First Nations real property taxation and promote a common approach nationwide. However, won't those people who are appointed by the Governor in Council from a list presented by the minister responsible merely promote the federal vision of Aboriginal property taxation and financial management? In that way, we would once again be following a kind of pattern in which the federal government would again and still be master. The vision put forward would definitely not be that of Aboriginal people.

» (1725)

[English]

Mr. Gordon Shanks: In response to the member, Mr. Chairman, you will note that subclause 18(5), which the committee has passed, requires that the members who are appointed to the commission have qualifications and that they must be committed to the development of a system of first nations real property taxation and have the experience or capacity to enable the commission to fulfill the mandate that's set out in clause 27. As a consequence--and I will reiterate it--there is the expectation, as the minister has noted, that the members of the commission will in fact be first nations people and that they will be experienced and qualified to fulfill the mandate of the commission.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, what are you relying on in asserting so quickly that the final result will be that the majority of members of the Commission, including the Chief Commissioner and Deputy Chief Commissioner, will be members of the First Nations?

On the contrary, subclause 18(5) states:

(5) The Commission shall be composed of men and women from across Canada, including members of first nations...

There may be members who are not from the First Nations. In fact, the key positions are those of Chief Commissioner and Deputy Chief Commissioner. However, if they are not filled by members of First Nations, the direction of that Commission and the promotion of the vision associated with its area of jurisdiction will be taken over by non-Aboriginals. I find this disturbing for the First Nations. I want to say, once again, that I would have liked their representative to be here.

[English]

Mr. Gordon Shanks: To reiterate the minister's note, his plan would be to ensure that there were first nation members appointed. I would note that the current Indian Taxation Advisory Board is now fully staffed by first nations people. All of the members of the board itself are first nations people.

[Translation]

Mr. Yvan Loubier: You assert that without any hesitation?

[English]

Mr. Gordon Shanks: The current Indian Taxation Advisory Board now is composed of first nations members, yes.

[Translation]

Mr. Yvan Loubier: But, officially, the Commission is not yet constituted.

[English]

Mr. Gordon Shanks: That's correct. But my point, Mr. Chairman, would be that if the member is concerned about the intentions, if we are talking about an evolution of the Indian Taxation Advisory Board into the First Nations Tax Commission, the experience to date and the evidence is that all of the members of the Indian Taxation Advisory Board now are first nation members. That is why I'm simply referring to the minister's view, that his intention would be to maintain this practice.

[Translation]

Mr. Yvan Loubier: Mr. Shanks, wouldn't it have been simpler to include in the bill, from the outset, a list presented by the First Nations and to provide that the Governor in Council would choose from the names on that list to fill the positions of Chief Commissioner, Deputy Chief Commission and commissioners? In that way we would have had assurances that the representatives would not merely be proposed by the Minister and that the ultimate decision, even if taken by the Governor in Council, would at least be based on a list submitted by the First Nations. After all, these are institutions of the First Nations, not institutions of the Governor in Council or the Liberal government.

» (1730)

[English]

Mr. Gordon Shanks: I'm not able to comment on what the bill might have been, Mr. Chairman.

The Chair: Mr. Comartin.

If Mr. Comartin and Mr. Dromisky cooperate, hopefully we can complete clause 27 before we go to the vote. I won't try another clause.

Mr. Joe Comartin: Mr. Chair, I'm really very committed to being there on time. I believe the first bill we'll be voting on is Bill C-250. It will be a very unique passage of that legislation if it goes through. I committed to my caucus that I would be there on time.

The bells have started ringing, so I move that we adjourn at this time.

The Chair: We have a motion to adjourn. All those in favour?

(Motion agreed to)

The Chair: The meeting is adjourned.