AANR Committee Meeting

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

For an advanced search, use Publication Search tool.

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

Previous day publication Next day publication

37th PARLIAMENT, 2nd SESSION

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

EVIDENCE

CONTENTS

Monday, February 3, 2003

1540

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

Mrs. Tamra Thomson (Director, Legislation and Law Reform, Canadian Bar Association National Aboriginal Law Section)

Mr. Garth Wallbridge (Chair, Canadian Bar Association National Aboriginal Law Section)

1545

The Chair

Mr. Brian Pallister (Portage—Lisgar, Canadian Alliance)

Mr. Garth Wallbridge

1550

Mr. Brian Pallister

Mr. Garth Wallbridge

Mr. Brian Pallister

Mr. Garth Wallbridge

Mr. Brian Pallister

1555

Mr. Garth Wallbridge

Mr. Brian Pallister

Mrs. Tamra Thomson

The Chair

Mr. Charles Hubbard (Miramichi, Lib.)

1600

Mr. Garth Wallbridge

Mr. Charles Hubbard

Mr. Garth Wallbridge

Mr. Charles Hubbard

1605

Mr. Garth Wallbridge

Mr. Charles Hubbard

The Chair

Mr. Brian Pallister

Mr. Garth Wallbridge

Mr. Brian Pallister

Mrs. Tamra Thomson

Mr. Brian Pallister

Mr. Garth Wallbridge

Mr. Brian Pallister

Mr. Garth Wallbridge

1610

Mr. Brian Pallister

Mr. Garth Wallbridge

The Chair

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

Mr. Garth Wallbridge

1615

Ms. Nancy Karetak-Lindell

Mr. Garth Wallbridge

Ms. Nancy Karetak-Lindell

Mr. Garth Wallbridge

Ms. Nancy Karetak-Lindell

Mr. Garth Wallbridge

Mrs. Tamra Thomson

Mr. Garth Wallbridge

Ms. Nancy Karetak-Lindell

The Chair

Mr. Brian Pallister

1620

Mr. Garth Wallbridge

The Chair

Mr. Charles Hubbard

The Chair

Mr. Garth Wallbridge

1625

The Chair

Mr. Ron Bernard (Council Member, Algonquins of Pikwakanagan)

The Chair

Mr. Ron Bernard

The Chair

Mr. Ron Bernard

1630

1635

The Chair

Mr. Brian Pallister

Mr. Ron Bernard

Mr. Brian Pallister

Lisa Ozawaninke

Mr. Brian Pallister

1640

Lisa Ozawaninke

The Chair

Mr. Pat Martin (Winnipeg Centre, NDP)

Mr. Ron Bernard

Mr. Pat Martin

1645

Mr. Ron Bernard

Mr. Pat Martin

Mr. Ron Bernard

Mr. Pat Martin

Mr. Ron Bernard

The Chair

Mr. Charles Hubbard

Lisa Ozawaninke

Mr. Charles Hubbard

Mr. Ron Bernard

Mr. Charles Hubbard

Lisa Ozawaninke

1650

Mr. Charles Hubbard

Lisa Ozawaninke

Mr. Charles Hubbard

The Chair

Mr. Ron Bernard

Lisa Ozawaninke

The Chair

1655

Mr. Michael Kanentakeron Mitchell (Executive Director, Center for Nation Building)

1700

1705

1710

1715

The Chair

Mr. Pat Martin

Mr. Michael Mitchell

Mr. Pat Martin

Mr. Michael Mitchell

Mr. Pat Martin

Mr. Michael Mitchell

1720

The Chair

Mr. Charles Hubbard

Mr. Michael Mitchell

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

1725

Mr. Michael Mitchell

The Chair

Ms. Nancy Karetak-Lindell

Mr. Michael Mitchell

1730

The Chair

Mr. Michael Mitchell

The Chair

Mr. Michael Mitchell

The Chair

1735

Mr. Michael Mitchell

The Chair

Mr. Michael Mitchell

The Chair

CANADA

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

NUMBER 019

2nd SESSION

37th PARLIAMENT

EVIDENCE

Monday, February 3, 2003

[Recorded by Electronic Apparatus]

¹ (1540)

[English]

The Chair (Mr. Raymond Bonin (Nickel Belt, Lib.)): I call the meeting to order. Welcome, everyone. We will resume proceedings on Bill C-7, an act respecting leadership selection, administration, and accountability of Indian bands, and to make related amendments to other acts.

Colleagues, we agreed to give up our other location because Marc Garneau was in town to speak to a committee, and we thought it was important that they get the cameras. Although this presentation is also very important, the other one is just a one-time meeting.

I would like to welcome, from the Canadian Bar Association, national aboriginal law section, the chair, Mr. Garth Wallbridge, and the director of legislation and law reform, Ms. Tamra Thomson. Thank you very much for accepting our invitation. Please proceed with your presentation, and then we'll continue with questions.

Mrs. Tamra Thomson (Director, Legislation and Law Reform, Canadian Bar Association National Aboriginal Law Section): Thank you, Mr. Chair and honourable members. We are very pleased to appear before this committee today on behalf of the national aboriginal law section of the Canadian Bar Association.

The CBA is a national association that represents about 38,000 jurists from across Canada. Among our primary objectives are improvement in the law and improvement in the administration of justice. It is in that context that we appear before you today and have prepared the written submission you now have before you. While this is the view of the national aboriginal law section, the section that has analysed this bill, it is based in part on resolutions from our national council, which is, if you will, the parliament of the Canadian Bar Association.

With those few introductory remarks, I would like to ask Mr. Wallbridge to address the substantive issues of the bill.

Mr. Garth Wallbridge (Chair, Canadian Bar Association National Aboriginal Law Section): Thank you.

Ms. Thomson has explained who the CBA represents, and she's also explained the process by which this submission has been put before you from a technical point of view. I would like to take a moment to explain the practical realities involving the members of the aboriginal law section who worked on our submission.

The CBA aboriginal law section is made up of close to 1,000 members, from every province and territory, with about an equal number of aboriginal and white members. Members who have specifically worked on this document include a broad cross-section of the legal profession, government lawyers, law professors, lawyers who work in the field of aboriginal law, business lawyers, and many more. I, for instance, am a Métis person, and I practice as a business lawyer. All of us in our section have an interest in good governance, both within the aboriginal community and within the larger Canadian polity.

I mention all this to illustrate that ours is a broad-based, open, inclusive, consultative process. This, we believe, contrasts somewhat with the reality of the Government of Canada process. We understand and accept that the government would ideally have heard from all persons or groups that have an interest in and will be affected by the proposed legislation. From the media, we understand at least one major group refused to participate. We accept that the Government of Canada has no ability to force the Assembly of First Nations to participate, but although we presume that there are some political machinations at play we have no knowledge of, we likewise presume that without the participation of the AFN, any final bill will be flawed. That is truly unfortunate. We do not, by any means, find fault with the government for the fact that the AFN did not participate. We mention it merely to suggest that any end product will necessarily be incomplete without input from an organization that represents so many first nations people in this country. Without them, the legislation will not be what it might have been to move Canada ahead in this most crucial area. Relations between the Government of Canada and first nations affect all Canadians. Every Canadian has an interest in proper relations between these two important players, the Government of Canada and the entire first nations population. This bill does not accomplish a fostering of better relations, and the absence of the AFN, I suggest, is indicative of this statement. I wish to point out that the CBA carries no brief for the AFN, or any other aboriginal group for that matter. We represent good law and good justice.

As stated at the outset by Ms. Thomson, the CBA's primary objectives are improvements to the law and in the administration of justice. It is for these reasons that we ask that this bill be withdrawn. We're realists. A new bill would have a focus on self-government. The two primary facts, in our respectful submission, are that this bill, to a large degree, merely amends, modifies, and alters the overriding control of first nations and the governance of those nations that the Government of Canada has been imposing for the last 100 years and more on first nations and that this is being done at a time when the first nations have stated again and again, loudly and forcefully, that they are simply not prepared to be controlled from the office of the Minister of Indian Affairs. First nations seek this, and large numbers of Canadians of all races, we think, also believe this is appropriate--a partnership in governance with the Government of Canada. Great countries, well-governed countries, are based on working partnerships among their diverse populations. When the stronger partner imposes its will by virtue of its strength on the weaker partner, mistrust is fostered, the kind of mistrust that keeps major partners from choosing to participate. This does not bode well for a country.

¹ (1545)

With the greatest respect, we ask that this committee recommend that the bill be withdrawn. We are, of course, prepared to recommend an alternative, but it is a distant second choice in our opinion, that significant and substantive amendments be made to the bill. The paper we presented to you today makes nine recommendations for change, changes we suggest are consistent with the realities of first nations governance and effect a move away from colonialism as expressed in the bill as presented. Each and every one of the nine recommended changes must be implemented if the bill is to achieve good, workable governance within and among first nations. This is not a list to begin negotiations with, that's not the role of the CBA. We seek better, indeed the best, laws for the good governance of all the people of Canada. All nine recommendations are, in our opinion, of equal and great importance.

We thank you for giving us this opportunity to come and present these nine recommendations, as well as our main recommendation, to just withdraw the bill. We are here and available to take your questions on either part of it, withdrawing the bill or the nine recommendations, which are put in summary fashion in both languages at the end of the presentation.

The Chair: Thank you.

The committee probably could send a motion back to the House saying we recommend that they withdraw the bill, but the procedure of the committee is to work our way to the clause-by-clause, where we either vote in favour of a clause or against it. To scrap the bill would mean voting against all 59 clauses. One of the clauses is that they have at least one meeting a year--how can anybody be against a clause like that? So I think we have to be realistic. The committee will go through the process and give it the attention it deserves, because it is very important, but we will end up coming back in one of these rooms doing a clause-by-clause. We need everyone's expertise to make what we have before us better when we send it back to the House. That's the job of the committee, and we need your help to do that.

Mr. Pallister, nine minutes.

Mr. Brian Pallister (Portage—Lisgar, Canadian Alliance): Thanks for your presentation. I appreciate your taking the time to be here.

Not to do an injustice to your report, because I haven't had the chance to read it thoroughly, you're saying we should be accommodating “traditional structures and practices of First Nations” in recommendation 5, and then in recommendation 8 you're saying we shouldn't and that we should respect “the equality rights of aboriginal women”, which is not the case, unfortunately, in certain arrangements bands have adopted over the years. I wonder how we can do both.

Mr. Garth Wallbridge: That's a very good question. It certainly is something that has occurred to all of us. I would suggest that the way it can be accommodated is to recognize, first and foremost, that the traditional ways by which many first nations govern themselves have a lot of merit. I'm not certain that this bill does this right now, by requiring the development of these various codes within a specified time, which may be too short a time. Otherwise, the codes will be imposed upon the first nations.

That said, and with the appreciation that there are traditional ways of governing that don't include women fully, those two must be made to mesh. So there will be some imposition, I would suggest, at the end of the day of parts of the bill, concepts that will, in fact, infringe upon traditional forms of government, but those should be as few as possible. The way the bill is written now, I think the exact opposite is the case. The impositions on traditional forms of government are almost to the maximum that could be imagined. That should be reversed, we think, all the time appreciating that we do live in a country with a Charter of Rights and Freedoms where equality is important.

¹ (1550)

Mr. Brian Pallister: Yes, it's very difficult. We all feel a respect for traditional governance models that were successful for centuries before we tried to impose others is critical, although we must also recognize, I think, that the governance models that were practised a century or two, three, four, five, six ago didn't anticipate the realm of powers we're now bestowing on band governments. I'm not here as a defender of the government's legislation, I'm simply suggesting--and perhaps you could respond--that the government is trying to ask for certain standards in some categories to be met, certain principles to be adopted, certain issues to be addressed that were not addressed necessarily in traditional forms of governance. Again, you say we should mesh the two. I know there's no easy answer, and so do you, but would you like to comment on that?

Mr. Garth Wallbridge: Again, Mr. Pallister, I would reply that to do it with the very least infringement upon the methods and processes of traditional government would be the goal, something I think would work.

Mr. Brian Pallister: Okay. Why? Our traditional methods of government, for example, western European methods, were far from perfect. They've evolved constantly, not as rapidly as some of us would like, but they've evolved nonetheless. So why would we necessarily have to be so careful about suggesting that certain topical issues be addressed, such as the equal rights of women or the full accommodation of all band members in having an opportunity to vote or being notified about financial records, these types of things, just because those things weren't addressed in traditional governance? When you suggest sensitivity, I'm concerned that we may be very careful to the extent that we may be afraid to actually raise the level of requirements, standards, protections for individual aboriginal people in case we'd be offending somebody.

Mr. Garth Wallbridge: I don't think I would characterize it as being concerned about offending someone. Rather, our position is that it should be a respectful relationship, and that could include, and should include, a recognition of section 35 of the Canadian Constitution Act and the other sections in the Charter of Rights that speak to equality. But for instance, the legislation as it now is does not adequately, if at all, address the fact of urban first nations people. That's a significant oversight, when we understand that perhaps 25% of the entire first nations population is now urban. So you have a piece of legislation being considered by our Parliament that denies the reality of the situation today: 25% of these people aren't going to be affected by this legislation in any event, except perhaps in the negative, by being excluded. So let's bring those people in, and at the time we're doing that and being more inclusive, let's recognize that equality rights, as I think we can all agree, are overarching. They must be considered, but without wanting to suggest that we should be afraid or concerned or anything else, I would say the philosophy we want to bring to this is being respectful of the traditional forms of government.

Mr. Brian Pallister: Thanks for those comments.

I think part of the challenge we all face is that where aboriginal folks are today, those on reserve especially, the governance models are not traditional governance models at all, they're a result of the imposition of the Indian Act. So we have power centralized in the hands of chiefs and councils, most of whom, I think, do an incredible job in the face of very difficult challenges, some of whom do not. Here is this artificially created environment, where an inordinately large amount of power and decision-making and authority rests with a centralized source, which was not the case with most of Canada's first nations communities centuries ago, not at all. So we have to get somewhere from where we are today, recognizing that decentralized power and powerful individuals made up aboriginal communities in days gone by, but such is unfortunately not the case in too many communities today.

So we have a real difficulty here. What concerns me very much in this legislation is that it centralizes further the power, decision-making, and responsibility for enforcement, redress, and so on in the hands of very few people. It does nothing to restore the sense of equilibrium that formerly existed in aboriginal communities. Would you like to address that? How are we going to deal with that little problem?

¹ (1555)

Mr. Garth Wallbridge: I'm not certain I know enough about traditional first nations governance to respond to that. I think it requires someone who has first-hand knowledge and is perhaps from a first nations community--and I'm not--and unfortunately, within our aboriginal law section we haven't, at least in any discussion I've been involved in, gone into that particular part of this, because it's not in the bill. In fact, I think perhaps that's a part of your concern.

The climate is very different today. I come from the prairies. The structure was very decentralized. The chief didn't tell people what to do, or the chief wasn't the chief, and people were mobile. We've locked people into a small land base, we've change the dynamic so radically. So what concerns me with this legislation is that we not do it again, that not add to the different level of power of leaders versus citizens--a very serious problem

Mr. Brian Pallister: Indeed, that's one of the faults we see with the bill, and it's in our written material, that there's not only no recognition of urban first nations people, there are collective groups of people who may come together and consider themselves a first nation who are never going to fit within this. They may be a part of what the Government of Canada considers this and that in a first nation, but there are some of them who have come together on their own. There are so many possibilities in making up these various collective first nations that legislation like this I don't think is ever going to adequately address it.

I think Ms. Thomson might have something further to say on just that point.

Mrs. Tamra Thomson: I would note that any model of governance, even a traditional form of governance, is an evolving thing. So in our view, that evolution should be recognized in this legislation. For example, the off-reserve clusters of communities should be able to find themselves a governance model recognized in this bill.

The Chair: Mr. Hubbard, seven minutes.

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

We have so many terms here, it's sometimes difficult. The first recommendation deals with first nations people living off reserve, and we are thinking probably, with this bill, mainly of people living on reserve, with people who are associated with reserves having certain privileges and rights through their association with the land they have set aside for their own bands. When you suggest this, how do you see this concept actually working? For example, Toronto has a lot of Indian people, or maybe you could say Regina has or Winnipeg, and there are other cities too, Vancouver. But when people move off reserve, there are representatives from various Indian bands all across the west or all across Ontario. So are you suggesting that there should be another band created? Would this be a mixture of people from all the different groups? How would you suggest the committee could deal with the off-reserve community?

º (1600)

Mr. Garth Wallbridge: We at the CBA don't really consider it our responsibility to try to define that. Rather, we would be respectful of the first nations people's own right to define what that might look like. I take your point, sir. I have often said the largest aboriginal community in the Northwest Territories is Yellowknife, which most people consider to be a white community. There are more Métis people in that community, more first nations people, etc. If I were to try to answer your question only by reference to the community I'm familiar with, I'm not certain that I could speak as a Métis person for the Inuit, Inuvialuit, the Dene people, and the Métis people who are in that community, if in some fashion they came together.

I'm not trying to be evasive, but it's just very difficult for me, because I believe it's encumbent upon those people to define how it might be. If you were to ask me, after I get rid of not wanting to step on someone's toes, how I might see it happening--if I could presume that might be a way to reply to your question--I would say that for all the people who wanted to in some fashion form a collective, not a government as such, but an institution of some sort--I think we've used the phrase “governance institutions”, which is perhaps just a play on words--there should be a mechanism that would allow them to do that. I don't see that the ability to be self-governing in some fashion should, of necessity, be tied to a land base. If you're not living on a reserve, should you then necessarily be excluded from all other rights that flow to you as a citizen of Canada and as a citizen of a first nation? I would think the answer has to be, no, you shouldn't, but that has been historic reality, and I think this bill simply continues that. It disenfranchises perhaps about 25% of the first nations population, which is something that at some point should be addressed, and we suggest this would be a proper time to do it.

Mr. Charles Hubbard: I'm really surprised at your position that we shouldn't continue with the bill. I think this is the second or third time in the last, say, 10 years we've attempted to bring changes to the Indian Act, which is very archaic. It's a legal situation that each band or each first nation is going to have to deal with. We do have a significant number of first nations peoples who have degrees in New Brunswick, even one who is a judge. They've reached various levels in their education with the various communities. Would there be people who could provide advice to the 600 different bands that would need codification of their governance? Is this a possibility, or do we have to go outside? How might you see your group offering this type of assistance?

Mr. Garth Wallbridge: That's a very real concern. Our recommendation 6 deals with the fact that we see some bands, and they may not be smaller bands, though that's more typically the situation, simply not having the financial and human resources to put these three codes into place. So we would expect that by default, the codes that are allowed for in the legislation are going to be imposed, and those may not serve anyone's interests. Indeed, the people in the community would say, we have a better traditional way to deal with this, but we're a small band of 50, 100, or 200 members, and we simply don't have the financial or the human resources to do it.

So recommendation 6 is that the bill ought to allow for the financial resources to enable the bands that don't have the resources internally to deal with it to go outside their own existing resource base, to get the money from the Government of Canada to retain the people needed to do it. It could be someone from an adjacent community who's just gone through the process. There are all kinds of possibilities there.

Mr. Charles Hubbard: Do we have people with sufficient understanding of culture and customs of first nations who can deal with this effectively in respect of the legal aspects of what this country seems to have?

º (1605)

Mr. Garth Wallbridge: I would be optimistic and say I think we do.

Mr. Charles Hubbard: Okay.

Thanks, Mr. Chair.

The Chair: Mr. Pallister, five minutes.

Mr. Brian Pallister: Thanks.

You like the idea of the legal capacity of bands, and you say in your report it would be quite positive, it would give legal and business certainty, and “current defects in legal capacity of bands result in lost opportunities and significant delays in obtaining adequate financing or engaging in business”. So you see some benefits for the band in being legally defined in that respect. We have the whole act in front of us, and basically, we can recommend anything we want. So you're familiar with section 89 of the act, which prohibits a small business person from seizing an asset for non-payment from a band member off band property. If you think it's a benefit to redefine the legal capacity of bands, it would probably make sense to equalize the legal capacity of individual band members, so they'd be on the same page with everybody else in the country in respect of their financial obligations. Right now section 89 means that a status person who is in small business competing with me can go on reserve and recapture assets for non-payment, but I can't if I'm not status, which hinders aboriginal people, frankly, from getting credit and engaging in the free mercantile rights we take for granted. So I wonder if you believe section 89 should be discussed and perhaps repealed.

Mr. Garth Wallbridge: Sorry, the documents we have in front of us don't seem to have a section 89 in them.

Mr. Brian Pallister: If you wouldn't mind getting back to us with an opinion on that, it would certainly be appreciated.

Mrs. Tamra Thomson: Sir, we can't find a section 89.

Mr. Brian Pallister: Section 89 essentially, as I've said, prohibits the repossession of chattels sold onto a first nations community from an individual.

Mr. Garth Wallbridge: As a business lawyer, I can tell you that creates all kinds of road blocks for a member of a first nation wanting to do what you might do or I might do in offering up security.

Mr. Brian Pallister: Obtaining credit, obtaining financing. A lot of first nations people have raised that with me. I'll move on.

I just want to go on record as supporting your observation that we can't review default band codes. I think it's important that we be able to review those, because they're very pertinent here. First nations communities are going to be forced into those default codes, if two years isn't adequate, which I'd like you to comment on. It's a concern that's been expressed to me by many first nations people. They have two years to develop the stuff we're putting on their table, and a lot of the bands have not got a ton of resources. Given the Auditor General's report that says they've got to fill out 158 forms a year, they've got a full plate right now. Now we're asking them, in two years, to come up with solutions to all these various categories, and if they don't, they get a default code, and we don't know what it is. Do you just want to give us your thoughts on that?

Mr. Garth Wallbridge: Our recommendation 7 speaks to the fact that the minister should have the ability--and it should be easily obtained--to forgo enforcement of that two years. I agree with you, and the CDA agrees with you, that two years is simply not going to be enough for a large number, even a majority, of the bands to comply, so they're going to go into the default codes. That's another whole issue. As you've said, it's important; we haven't seen those yet.

Mr. Brian Pallister: The bands haven't seen them.

Mr. Garth Wallbridge: That's right. We can only presume that they'll be good, that they'll be useful, that they'll be well thought out, but without having them available at this time, knowing that they're coming into regulations, which, as we all know, the minister can change at any time.... There are big benefits to that, but at the same time, because they will, in fact, be the law that governs a large number of bands perhaps, we should be able to see those now. To be able to fully analyse this bill, we should know what is going to happen if a band isn't successful in putting its own codes into place.

º (1610)

Mr. Brian Pallister: You do refer here to a position my colleagues know we repeated, concerns about a chief-appointed ombudsman not being an effective mechanism for redress. You don't refer in your report, so far as I've been able to find, to the issue of enforcement officers. This has come up in many of the consultations we've been able to do with first nations community members. They've expressed a concern that a chief-appointed enforcement officer could be very dangerous and it would difficult to establish distance or independence with the enforcement officer's powers, getting the political element out, so that enforcement officers are consistently doing enforcement with political influence. Do you share a concern on that front?

Mr. Garth Wallbridge: Certainly. An ombudsperson needs to be acceptable to the people over whom he or she is going to have decision-making authority. There has to be general acceptability, as well as an appreciation that a decision must then be acted upon. I don't want to personalize this, but I used to be the rentalsman for the Northwest Territories, and certainly, a buy-in by all the stakeholders is critical for such a position as an ombudsperson to work. To enforce that kind of decision-making authority when already within the bill there are so many things that are unpalatable and unacceptable just puts another layer on it. I don't have any easy solutions to offer, but it's going to be a problem. I'm not suggesting that a parliamentary committee would do this, but in my work as a lawyer, I too often hear, well, that's what the courts are for, but that is a cop-out, because it's an expensive, laborious process. I'm sure you want to get this right the first time, without having to ever think someone will have to go to the courts to sort it out.

The Chair: Thank you.

Ms. Karetak-Lindell.

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

In recommendation 2 you state that it should have a non-derogation clause, and that's been brought up by some other witnesses. Normally, when we have a non-derogation clause--and correct me if I'm wrong--it tries to combine what you have in recommendations 2 and 4. If we had a non-derogation clause that also talked about not limiting or abrogating, do you think that would take care of your recommendations 2 and 4?

Going back to 2, I'm a little puzzled as to why you would put in “commit to negotiations on self-government”, because I thought in the purposes section we already stated that this is an interim arrangement, pending the negotiation and implementation of the inherent right of self-government.

The last sentence of recommendation 3 says “the FNGA no longer applies to a first nation with a concluded agreement”. With the different land claim agreements I have had the pleasure of working through on this committee, I thought we always put that in the bill. I thought we took care of it by inserting a paragraph saying no other legislation will be more prevalent than this one we're dealing with. Take the Nunavut land claims agreement, for example. We stated that the land claims agreements would prevail over any other legislation. Wouldn't you rather want to put it into the other legislation that recognizes that land claims agreement?

Mr. Garth Wallbridge: Legislative drafters are very good at catching those kinds of overlapping concerns, but in a general sense, one piece of federal legislation cannot, in and of itself, purport, as I understand the situation, to completely dismiss another piece of legislation. That other piece of legislation has to explicitly allow that in certain circumstances the impact of that legislation can be forgone. I would need to defer to someone who is a constitutional expert or a legislative drafter, but I would suggest that it's best if both pieces of legislation speak to the issue, so there can be no uncertainty. There certainly have been cases fought up to the Supreme Court of Canada level, I would presume, saying, we thought this was the case, because we put it in this one piece of legislation, only to have someone argue that the other piece of legislation didn't specifically allow that to occur.

I'm not certain if I've answered your question.

º (1615)

Ms. Nancy Karetak-Lindell: Well, it creates an element of uncertainty, as with the Nisga'a treaty, land claims agreement. What do your interpretation and your recommendation say about those other pieces of legislation that have already passed through saying their agreement prevailed?

Mr. Garth Wallbridge: Yes, their agreement should prevail. If it's something in place already, there's certainly no way I would suggest that a more recent piece of legislation can change a concluded land claim agreement, because land claim agreements, being modern-day treaties under the Constitution, are not subject to those kinds of changes.

Ms. Nancy Karetak-Lindell: So are you referring to old agreements when you say “no longer applies to a first nation with a concluded agreement”? Maybe I misinterpreted that in your recommendation 3.

Mr. Garth Wallbridge: I think there will be many cases--probably every case--where this particular legislation will not affect an existing, concluded agreement.

Ms. Nancy Karetak-Lindell: I'm totally lost now, because I thought in 3 you wanted us to state that it will not apply.

Mr. Garth Wallbridge: I'll let Ms. Thomson answer your question. Maybe she can be a little clearer.

Mrs. Tamra Thomson: I think we're just getting into semantics here. In recommendation 3 the wording is about subsequent self-government agreements. You're referring to ones that are already negotiated. If you read recommendation 3 as applying to any other final agreement on self-government, in the future or in the past, this bill would not apply to those agreements already negotiated or to agreements negotiated in the future.

Mr. Garth Wallbridge: The first half of recommendation 3 implicitly deals with future negotiated codes that are going to be adopted. I think it's important that we take the second part of recommendation 3, recognizing the first part of recommendation 3, which says, if you're going to put in new codes, those new codes should recognize that this bill is not going to apply to any with an existing concluded agreement.

I wonder if we might suggest that you take some time to read through the materials we were able to present in front of that recommendation. Indeed, Ms. Thomson, who deals with these kinds of things quite regularly. could perhaps respond in writing to you to give a little more clarity, so that you're comfortable. We don't want to leave you confused by any means. We'd like to take the time to help you understand it. I think we're just going around the same thing now without accomplishing that.

Ms. Nancy Karetak-Lindell: Thank you.

The Chair: Mr. Pallister, three minutes.

Mr. Brian Pallister: You mentioned that smaller bands might benefit from the assistance of an elections officer, who'd assume responsibility for various aspects of running an election. I don't know if you should limit that to smaller bands, because a lot of bands have said to me that might help them. But I appreciate that observation. I think it reflects the suggestion the Chief Electoral Officer made, that some aspects of election planning and so on weren't properly addressed in the act. It gives an opportunity for amendments, I think.

I also appreciate your addressing the issue of resources. That's a key point that has come up in a lot of our meetings with first nations people. They're concerned that these requirements are onerous, and they're not sure there's a commitment by the government to make resources available to them for the implementation of a lot of these requirements.

I'd like to address recommendation 9, where you say, “Section 34 should require that the agreement of a band be obtained before a decision is made by the Governor in Council to suspend the band from application of the FNGA.” It seems, on the surface, a very reasonable request, but there is a concern I have. Some of my friends in Manitoba have been trying to negotiate self-government arrangements for maybe a decade. So what do you put in place? Some of the aspects of this act impose requirements many bands are already fulfilling and more, things like financial records and accessibility to them. What do you propose to do if these tables stay open for another decade or 20 years? What would your suggestion be there, that the FNGA wouldn't apply?

º (1620)

Mr. Garth Wallbridge: Where there is good faith and all parties recognize that the good faith is there, that negotiations are dragging on, but not for any reason other than the complexity of those negotiations, I think it's open to the parties, meaning a partnership between the two levels of government, to forgo the workings of the FNGA, perhaps for 10 years or 20 years. I suppose the sets of circumstances that would allow that would be at least two. One, as I've already indicated, is that the negotiations are proceeding in good faith, the second that the processes in place on that particular reserve are working now, so there's not the need to immediately address electoral or administrative or whatever codes, and we don't really need them, because the system there is working. Right now I don't see the legislation allowing for the minister to say the timelines can be ignored. That's all we're saying. Let's have a little more flexibility.

The Chair: Thank you.

Mr. Hubbard.

Mr. Charles Hubbard: You're legal people, and codes are so important. I know you have this idea to throw it away, but some of your members must see this as a tremendous challenge, an opportunity to take and develop. A great number of bands have operated without codes, without written laws, and so forth for a good period of time. I would hope, Mr. Chair, that when our group leaves here today, it'll perk up some members of their association into thinking about their people and trying to develop the customs, the culture, the background, and all this, so that codes can be prepared that would be acceptable to their first nations members. It's a challenge.

The Chair: : We have time for closing remarks. Before you make them, I would like to thank you very much for appearing. Your expertise is valuable to the committee, and we'll put it to good use.

You have about five minutes.

Mr. Garth Wallbridge: I would like, in turn, to thank the committee for giving us this opportunity to make the presentation. I want to leave this committee with the clear understanding that although we have come here today and made this written presentation, we are available beyond this. When we say we represent 38,000 jurists in the country, that is about two-thirds of the entire profession. Most of those members come on a voluntary basis and pay their annual dues, and I like to think that's indicative of the fact that we have a great organization going, and we want to be a resource to you. I've already suggested that on one issue Ms. Thomson prepare a response and present it to the committee, so it's on your record. If there are more questions that come up at some point, please call on us, we're available.

º (1625)

The Chair: Thank you very much.

We welcome now, from the Algonquins of Pikwakanagan, council member Ron Bernard. We invite you to make your presentation. You may want to introduce to us the colleague who is accompanying you. Following your presentation, we'll proceed to questions and answers.

Mr. Ron Bernard (Council Member, Algonquins of Pikwakanagan): Thank you, Mr. Chairman.

We've brought the requested 25 copies of our presentation, and we'll pass those on to the clerk.

My colleague is Lisa Ozawaninke, Chief of the Algonquins of Pikwakanagan.

The Chair: Welcome.

I have to mention that copies of your presentation are not in both official languages, so we cannot distribute them. It will be translated, and members will receive it at a later date. We will depend on you to deliver.

Mr. Ron Bernard: I would like to apologize for not having those copies in both official languages. Circumstances made time short for us, and we weren't able to get that job done.

The Chair: I understand. You did not get very much time.

Mr. Ron Bernard: Thank you.

Mr. Chairman, members of the committee, I'm making this presentation to the parliamentary Standing Committee on Aboriginal Affairs on behalf of our people, the Algonquins of Pikwakanagan. The First Nations Governance Act is unacceptable to first nations people, because it undermines first nation sovereignty and the inherent aboriginal and treaty rights protected in Canada's Constitution.

All parties agree that the Indian Act is a major obstacle to change, but Bill C-7 will not replace this outdated colonial legislation. The Indian Act, along with its ongoing problems, will still be there. This means two laws, plus more upcoming legislation, such as Bill C-19, the First Nations Fiscal and Statistical Management Act, will then unilaterally impose further control over first nations. The Canadian Government's unilateral approach in tabling of Bill C-7 is unlawful, and all Canadians should be concerned about this violation of their Constitution.

The Supreme Court of Canada, in its Delgamuukw decision, said:

The reconciliation of the prior occupation of North America by Aboriginal peoples with the assertion of Crown sovereignty required that account be taken of the “aboriginal perspective, while at the same time taking into account the perspective of the common law” and that “true reconciliation will, equally, place weight on each.”

Case law, such as the “Reference re Secession of Quebec” opinion issued by the Supreme Court of Canada establishes to whom the rules apply:

The rule of law principle requires that all government action must comply with the law, including the Constitution. This Court has noted on several occasions that with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of parliamentary supremacy to one of constitutional supremacy. The Constitution binds all government, both federal and provincial, including the executive branch....They may not transgress its provisions; indeed their sole claim to exercise lawful authority rests in the powers allocated to them under the Constitution, and can come from no other source.

This passage from the Supreme Court of Canada opinion establishes that not only is the court bound by the two perspective approach, so are Parliament and the executive.

Bill C-7 allows first nations to develop codes in a few limited areas, for example, leadership selection, administration of government, and financial management, but these codes must conform to strict prescriptive criteria that do not take into account the diversity of first nations. This is an infringement of our right to self-government as recognized by the Constitution and acknowledged in federal government policy. On one hand, Canada continues to fund self-government negotiations with some first nations, while on the other hand taking unilateral action through Bill C-7 to impose governance legislation upon all first nations. We do not need legislated governance, which in this bill amounts to nothing more than tinkering with the Indian Act, an approach strongly condemned by many studies, such as the Royal Commission on Aboriginal Peoples. We need Canada's recognition, acceptance and implementation of those treaties already signed and of our inherent right to self-government.

Bill C-7 permits first nations only two years to develop these codes before Canada forces use of default codes developed by the Department of Indian Affairs. Many first nation communities lack the necessary resources to get codes in place within the given timeframe. They will be stuck with the one-size-fits-all default codes, which will perpetuate current problems and create new ones.

º (1630)

Bill C-7 maintains, and in some cases increases, the control and the authority of the Minister of Indian Affairs over first nations. The minister will retain power in key areas, such as election appeals. Bill C-7 creates a new legislative basis for the minister to intervene in the financial affairs of first nations. Bill C-7 creates new authority for the minister to oversee a national registry of first nation laws. The Canadian government has a dismal record in the operation of registries of Indian lands and Indian status. We do not need the imposition of more financial management. The financial accountability in the administration of programs by the Algonquians of Pikwakanagan is clearly displayed by unqualified audits for more than 20 consecutive years.

Bill C-7 provides first nations with limited authority to develop bylaws, but has inadequate provision for enforcement. Will the Canadian provinces enforce this federal legislation? If so, are they prepared for the added expense in fiscal and judicial resources? Have the provinces been consulted?

Regulations on Bill C-7 do not exist, yet within in the bill reference to its regulation is extensive. Therefore, such regulations are very important, and a proper debate on the substance of the bill is impossible without them.

Unfortunately, Bill C-7 expresses only the non-aboriginal view of first nations governance. The proper approach to developing self-government should be to ensure that first nation and Canadian perspectives are reconciled and one cannot dominate over the other.

We are here to oppose the passage of Bill C-7, because the process being used is unacceptable to us. This unilateral process must be stopped and a partnership process begun. This bill is directed specifically and only at first nations people. Has the Standing Committee on Aboriginal Affairs scheduled any hearings within first nation communities? We are here to tell you we cannot accept legislation written or enacted without our full participation. We demand our legal right to equal participation in the development of any law intended to regulate our daily lives.

This is our presentation, Mr. Chair. Thank you.

º (1635)

The Chair: Thank you.

Mr. Pallister, seven minutes.

Mr. Brian Pallister: Thank you very much, sir, for your presentation.

You remark that the federal government has had a dismal record on registries of Indian lands and other issues. They've had a dismal record on a lot of registries lately, I think; the gun registry would be most recent example. But you have not commented on the very difficult negotiations many bands have been in the process of undertaking with the federal government over a long period of time, and the lack of progress in those is something, I'm sure, the minister would say is very frustrating. But I think his frustration is probably just a fraction of the frustration felt by many first nation leaders. Are you suggesting, then, that these negotiations are the right path, that the federal government should continue to go down that road of negotiating with first nations as partners towards establishing self-government agreements, and that's where the resources should be focused?

Mr. Ron Bernard: If participation is equal, because we want to have substantial and equal input into any regulation that is going to be affecting our lives.

Mr. Brian Pallister: Sure.

Mr. Martin and I both come from Manitoba, and in Manitoba the consultations were done, maybe 90%, with people who live off reserve. So the first nations people who live on reserve were not consulted, yet this legislation has, effectively, a far greater impact on people who live on first nations community land than on those who live off it. So it seems that the consultation process, at least in our neck of the woods, was somewhat as you've described it, not disrespectful--that would be too strong--but inattentive to the input of those who live in isolated communities, rural communities, and so on.

We have a very difficult responsibility here, because we have to adjudicate over this proposal, as much as there may be members of this committee who would just as soon, as our previous presenter said, throw the whole thing way. So I want to ask you about some specific aspects of the thing.

One of the concerns a lot of first nations people have been conveying to me, chiefs included, is that chiefs are supposed to be appointing a redress officer, an ombudsman, in each community, and it puts them in an untenable position. If they appoint the person, the person is accountable to them, and it creates an image of somebody who has authority, when the authority will be called into question all the time. So I wanted to ask you your view on that issue. As a chief, I thought you might have a view on it.

Lisa Ozawaninke:

I thought the Indian agent days were over. You talk about self-government and first nation communities being able to progress. Why would you want to move back into that type of era, even if it is dubbed an ombudsman? They're still accountable to somebody. First nation government is young, yes, but in respect of operating and administering business, if you check our track records, we've come a long way in the time we've been given to take care of our own business affairs and our paper affairs.

Mr. Brian Pallister: It's like a lot of laws, isn't it? They are supposed to apply equally. You commented that this proposal doesn't recognize the broad diversity that is the reality across Canada. For the bands that don't need it, it's not a problem, but for the odd chief for whom a checks and balances situation should be created, having that chief appoint an ombudsman really isn't going to have any positive effect at all.

º (1640)

Lisa Ozawaninke:

With Pikwakanagan's situation, we've had 21 years of unqualified audits. We've had congratulatory remarks on our ability to manage our own affairs, and that's a history we're quite proud of. But another piece of information that has not been stated at the table is that our first nation is currently involved in a land claim that involves the city of Ottawa, 8.5 million acres. It stretches from Hawkesbury up to North Bay, including Algonquin Park. We talk about developing a relationship on an equal basis, but we ask that this participation be provided and considered on an equal basis. My personal view is, how can the government sit here and tell us how we're going to do our business under the laws that govern the rest of society, when we, as the rightful owners of this land, where the Parliament buildings sit, have not received one cent of rent? That is why we are currently sitting at a negotiation table with Canada and Ontario. How can Canada govern us and impose laws upon us when they themselves are sitting on land they haven't paid for yet?

The Chair: Mr. Martin, five minutes.

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

I'm sorry I was a few minutes late, but I think I get the gist of much of your brief. Thank you for being here.

The NDP caucus I represent has been working with the Assembly of First Nations and various other first nations leadership organizations across the country in opposition to Bill C-7, so I'm sympathetic with most of your remarks.

I'd like you to comment further, if you didn't already, about one aspect of Bill C-7 that we find alarming, the absence of a non-derogation clause. Nowhere in this bill will there be any guarantee that it will not diminish or derogate from existing treaty rights or constitutional rights. Is it your position that it should have a non-derogation clause?

Mr. Ron Bernard: I certainly believe it should have, because those treaties that have been signed between Canada and the first nations were signed on a nation-to-nation basis. The word treaty itself denotes an agreement between governments, states, or sovereigns. It's very disappointing that a lot of the conditions they agreed to, clauses in those treaties, are not being respected by Canada. I think there should be such a clause in this legislation if it passes.

Mr. Pat Martin: Thank you. I just wanted to get that on the record.

On the lack of consultation across the country, many witnesses have made representation here, and we've heard from others in our personal dealings with first nations communities, that not only has there been no genuine consultation, but those who would participate in the consultation would get rewarded in some way, while those who refused to participate, because they were opposed to the whole idea or the process, were punished somewhat by being slapped under third-party management or having their funding reduced. Do you have any stories you've heard about retribution first nations communities may have suffered for not playing ball with Bill C-7 or with the minister?

º (1645)

Mr. Ron Bernard: The only one I'm aware of, which comes to mind right away, is the Pikangikum first nation--

Mr. Pat Martin: Yes, in the minister's own riding.

Mr. Ron Bernard: --in western Ontario. They won their legal battle with Canada, and the minister refuses to implement the decision of the court.

Mr. Pat Martin: I went there. It was ordered by the courts that they reverse this punitive measure. It's a very good example. Thank you.

It's widely held that Bill C-7 is a very Eurocentric, colonial approach to amending the Indian Act. There's always been a requirement that to amend the Indian Act, there has to be broad consultation. There have even been legal definitions written of what constitutes broad consultation. In your experience, was the $10 million consultation that took place across the country adequate? Did first nations really have genuine input into the substance of Bill C-7 at the consultation phase?

Mr. Ron Bernard: I think the definition of consultation on the part of Canada is, we've made you aware, we've sent you a questionnaire. The consultation doesn't really cut it for us. We still feel we need to have our voices heard in the formation of any legislation that's going to be applied to us. We don't want to answer a questionnaire and then have our answers thrown into a garbage can, we want our input to be considered and looked at. We'd like to do that on an equal basis.

The Chair: Thank you.

Mr. Hubbard.

Mr. Charles Hubbard: Thank you, Mr. Chair, and good afternoon, Chief and Councillor.

What are the total band numbers on your list?

Lisa Ozawaninke: Our total band membership is 1,800; the on-reserve population is approximately 400. Prior to 1985 our membership was, I think, at the maximum, 400 or 450. They also predict, according to Indian Affairs guidelines for membership codes--there was a study done on Pikwakanagan--that by the year 2020 or 2030 we will no longer have any members being born into our community and our band.

Mr. Charles Hubbard: Your band has been very successful; you say 20 years of perfect audits, no problems. So you must have some very good regulations, codes, or whatever you want to call them, with which your band management looks after your affairs. Mr. Bernard, you have how many councillors?

Mr. Ron Bernard: We have six.

Mr. Charles Hubbard: You have six who work with the chief. When word came about this Bill C-7, you rejected the concept of trying to get your committee involved with it. I don't believe any hearings were held, so seven people decided it's no good, it shouldn't happen, with the recommendation not to get involved. Did your membership participate in that decision not to get involved with the process?

Lisa Ozawaninke: The opportunity was provided through INAC to have some pamphlets go to the community members. We were also aware that INAC was phoning individual members within the community, whether or not we said they wanted to be consulted, whether or not they told us they wanted to be consulted. So they obviously had their own agenda for how they were going to get the people. A process was already being developed. Minister Nault stated in a couple of meetings that there was no draft done, that we were working together to have it done. It became quite obvious after one or two such public statements that there already was a draft done and completed.

º (1650)

Mr. Charles Hubbard: But, Chief, with your own council, was it brought to the table by minute or resolution that you and the council decided not to get involved? I'm trying to look at decision-making. We talk in Bill C-7 about transparency, getting more people involved, having an annual meeting, and all this. I suspect that's part of your present operations. But was the decision not to participate, not to get involved with the input into this, a decision of your council?

Lisa Ozawaninke: We've discussed it at various points. We've attended various national meetings with the Assembly of First Nations and Chiefs of Ontario. Those comments have been shared with the community via newsletters, information packages. Not one person has come back and said, I want to have these. The question that comes back is, we're currently involved in negotiations on our own land claims, so how does this effect things? What is the end result going to be? Accountability is required of first nation communities and organizations, much the same as it should be for the government. We've progressed enough in that area that, as I said, we've had 21 years of unqualified audits. We have our own organizational policies and personnel policies and standing committee policies already in place. We talk about being fair, equally involved in participation. Things were already completed and on a roll.

Mr. Charles Hubbard: Thanks, Mr. Chair.

The Chair: Thank you very much for your presentation. We invite you now to make closing remarks of three minutes, if you have anything more you would like to share with us.

Mr. Ron Bernard: We would like to thank the committee for hearing our presentation. Our main message is that we cannot accept legislation that is imposed upon us. We're not back in the dark ages, more than 100 years ago, when the initial legislation was laid down that applied only to the native people in Canada. We want, again, to have the right to equal participation in the development of any laws that will have control over us.

Thank you.

Lisa Ozawaninke: We want to be the ones who create the laws on how we govern ourselves. That's been handed down to us by the Creator, our inherent right to self-government. Prior to the Algonquins being discovered, we did have our own set of laws. I'd like to be the first one to put my name forth, because any time you're developing a French act, a Jewish act, a German act that is going to govern that race of people, I would like to be a part of it.

The Chair: I'll just mention in closing that there are arguments presented to this committee that are not within the jurisdiction of this committee. I'm sure everyone understands this. We have been directed by the Speaker of the House to do a job. The issue of whether the Parliament of Canada has the right to pass certain laws or not will not be discussed or settled by this committee. I just want you to understand that we're doing a job that we have been directed to do by the Speaker of the House. You may want to bring your arguments to him too.

Thank you very much.

We will not suspend, but we will immediately proceed to the next presentation.

I welcome the executive director for the Centre for Nation Building, Michael Kanentakeron Mitchell.

Mr. Mitchell.

º (1655)

Mr. Michael Kanentakeron Mitchell (Executive Director, Center for Nation Building): Good afternoon.

I don't know if you had a cancellation, but we only had a few days notice to prepare. I did bring some papers to share with you, but nobody had time to translate them into French, so we're just going to leave them with you. I'm going to ask my staff to give them to your people.

My name is Kanentakeron. My English name is Mike Mitchell. I'm from Akwesasne. For 21 years I was an Indian Act chief. For the majority of that time I was the grand chief for the Mohawk Council of Akwesasne. I want to share with you a little about the community. It's probably a unique community in North America. With a population of close to 15,000, half of the territory is in Canada and the other half is in the United States. On the Canadian side half of that territory is in Quebec and the other part is in Ontario. About a hundred miles of islands make up the Akwesasne territory along the St. Lawrence River.

It's pretty difficult for any political leader, given the five jurisdictions of Ontario, Quebec, New York State, United States, and Canada, to attempt to govern. I was interested in coming here to share some thoughts with you because the only instrument to govern I could fall back on when I was chief was under the authority of the Indian Act. My people elected me in 1982. I became head chief in 1984 and grand chief in 1986. I want to get you to understand what it was like. I know you have lawyers, scholars, business leaders, and all kinds of people bringing you their positions on governance, but I'm going to share my experiences with you as a person who actually had to govern with those instruments.

In 1982 we had elections in Akwesasne under the Indian Act, and 12 Indian Act councillors elected one person among themselves to be the head chief. That's the usual standard for Indian Act elections. When I became the head chief, 7 out of the 12 voted for me to become their spokesman. As I walked about the community, I introduced myself to people as their new head chief for the St. Regis band council. They said, no, you're only the chief of those 7 out of 12 people who elected you; when we have a voice as a community to elect you, then you will be our chief. I worked really hard for the rest of those two years to have focused meetings, community gatherings, and to hear from them. I sat down with Indian Affairs and said, what's the scope, what's the opening here?

At that time custom elections were the topic of the day. I looked at that, and I looked at our people. The Mohawks, who are part of the Haudenosaunee, have a very rich cultural heritage. I couldn't fall back on that, because we don't want to jump right back. We had to try to modernize some elements. So we became the community government of the Akwesasne. We went through a formal change of name, and we started putting tradition and culture back in the community. The only problem was that when I became the head chief, Indian Affairs was getting ready to lock up all the offices. They informed me a week later that there was a deficit of $2 million on a $5 million budget.

» (1700)

So I studied the operations and found the council had very little to say. The way it was set up, you still had to report to Indian Affairs on economic development and education. We still had district offices, regional offices, and headquarters. It was a long trail to find out where the decision-makers actually were. In my ride to get acquainted with how the system operates and to try to find the nuts and bolts to make things operative, I went back to the community and started looking at what is important to them. They said, we want ownership, we want you to make us feel as if we, the community, are the owners of governance.

In 1998 we voted on the custom code. The community elected the grand chief, and they put up 12 district chiefs. We have three districts, Cornwall Island, St. Regis, and Snye, and they all had their local district chiefs. So they modernized. In attempting to govern, I found out that we still had an invisible Indian agent, because everything we did as a council had to be authorized by the Indian agent. In a complex world such as Akwesasne, an international community, a lot of things were happening, and I found out that we had very little power.

The greatest success I had was when I had to put something in place that the community directed me to do. One of the first lessons was to involve the community. They had another vote the following year to take over membership. They set up their own board of education, and then the community elected that board of education. Then they set up a judicial regime, in which they had a legislative element, a court commission, and a police commission, all community people. It just rolled along, more people got involved.

So as I'm studying this new governance bill, I'm thinking, they're talking about things we've done on our own. It wasn't because we wanted to or because at times the issue of the day dictated that we had to do something. The greatest success in setting these things up was on the basis that we had to think Okwehonwe again.

I'm going to do a show-and-tell afterwards. I want to pass this around. This is a badge for the Mohawk security staff, who found pride in their work again. This is a community flag. I'm going to ask my assistants to spread it out and show it to you.

We had very low self-esteem as a community, because of the deficit etc. As I was unravelling things, I had to find some way to put that culture back into the community. I think you know by now--when you have more people testifying, you will--that among the Mohawks the traditional and the elective systems haven't always gotten along. They don't talk, they hate each other, and so on. I grew up traditional, so when I was put up, I used nation concepts, nation thinking. I translated to a community those things that meant a lot to them, and the community took ownership.

The first block on this flag represents the Mohawks--that's us. The second block represents the Oneidas, the central block the Onondagas, the next block after that the Cayugas, and the one over there the Senecas. Our traditional way is based on the tree of peace, which is in the centre, and there's an open path, the four roots of peace, that goes out. Any nation seeking peace shall come and seek shelter under the tree of peace. It's the Hiawatha wampum belt, and they just made it bigger. In our society everything we do is based on the Great Law of Peace, that's our traditional way. I had to try to find a way to take that and incorporate it into Akwesasne. It became the community flag. The Hiawatha belt is in the centre, but I put a few more cultural things in there. That's our flag.

» (1705)

The belt you have with you has two rows. Two rows symbolize two paths and two vessels travelling down the same river together. One birchbark canoe is for the Okwehonwes, their laws, customs, and ways, the other a ship for the white people, their laws, customs, and ways. We shall travel the river side by side in our own boats. Neither of us shall steer the other's vessel.

Ladies and gentlemen, this is an important book, Indian Self-Government in Canada. It's bound with the two-row wampum. So I think Canada heard the message in this Penner report. What the two-row talks about is coexistence. How do we coexist? What are the things we have to find in each other, in our customs, traditions, and laws? So we invoke those principles that are important to us, and the people start taking ownership. Everything I've done, I've given back to them.

I should mention that the deficit allowed me to catch their attention. The minister's name was David Crombie at the time. Within the first two months of my becoming grand chief, I had a meeting with him. I dared Indian Affairs to listen to the will of the community. I said, rather than locking up the offices or bringing more Indian Affairs people down here, let our people run our community. So we designed our own deficit retirement plan and put together a new financial regime. We brought home people from the community who were working for the government and the private sector and put together our own plan. It took us four or five years, but we wiped out that deficit. From a $5 million operating budget, when I left this past spring and retired as grand chief, our annual budget was $60 million.

What I'm saying is, you can have accountability. This thing you're talking about with governance is confidence building. That's what our first nations people don't have, the confidence. During that time we took over health, we took over police, we took over justice, and we set up our own conservation program, an environment program, made our own laws. It's hard when you're living between Canada and the United States and nobody allows you to have any authority. So we took the authority. Canada would not recognize us as having a conservation program. They said, under the Indian Act, you don't have that authority. So we took it. A few years later they saw that this was actually beneficial. Ten years later we're doing joint programs and projects, but we had to train those conservation officers in Albany, New York, at the state police academy, and now we've put them in. Setting up the Mohawk court showed the same principle. They said, you don't have that authority. I submitted 22 band council laws, and all of them were refused. I couldn't even get a dog catcher's law approved.

So little by little we pulled Indian Affairs in and started talking about partnerships. How do we translate that? Look at the will and the needs of the community. So one at a time, we started enacting community laws, desired by the community for accountability. Accountability is very important. My special meetings and monthly general meetings were printed in our community newspaper. The audit that came out was translated into a language people could understand. It was reported back how much money came in, what was education, what was housing, what was economic development, and what was health, all broken down. The department heads all gave their own reports of their staff and what they did with the money. It became a template for the regional department of Ontario. We shared with them our newspaper, and they used it for other first nations. It was in that way that others became acquainted with what accountability and responsibility are. As I travelled through Canada, I found out we could be of service to them.

Responsibility and accountability are an attitude. But there's a part that's missing, which is what I want to talk about today. While there is accountability and responsibility, you have to invoke a degree of authority too. That authority leads to jurisdiction. That's what's missing from this document, Bill C-7. We haven't taken that extra step or defined it further. The foundation is the Indian Act. That foundation, which originated over 100 years ago, talks about assimilation, about educating the Indianness out of Okwehonwes, and about assimilating them, so there would be no more problems. Well, it was 130 years ago, and you're still here. You can't use it as a foundation, and that's what's hard about the path you're pursuing. I look back at the Hawthorn report, the Penner report, and the royal commission by your governments, and a lot of good recommendations have come out of them.

» (1710)

The projects I'm working on right now are projects people wouldn't touch. We're designing and implementing gun control for Mohawk communities, because we're on the border and a lot of guns are going through, a lot of dangerous things are happening. We took that on. While everyone was fighting about this being a rip-off and people spending too much money, we looked at the problems, domestic violence, gun safety, gun registration, data keeping, and we designed our own Haudenosaunee gun control law. We're working with people here in Ottawa. They're beginning to see where we're coming from. That's a different attitude, taking responsibility.

Traditional medicine is the same thing. They want to regulate traditional medicine. How do you do that? How do you regulate the air? So we interpret that, and that's another project we're going to work on.

We're going to sit down with five departments to talk about making a first nations labour law. Taking responsibility is the hardest thing. Even the unions are part of our group now, saying they'll have to look at it our way.

That's what I'm trying to bring out, how the people who are governing Canada can look at something and say, first nations, what is your way? You need models. There are no models up there on the shelf you can reach up for and say, there's a small committee, it's a small box, a whole bunch of boxes, a medium box, there's a large box. You don't have examples like that. So what I would recommend is that we get into developing some models, so that neither first nations nor Canada are trapped into anything, and they can build on success.

I just wanted to acquaint you with the fact that the Center for Nation Building is developing this. I realize it's a long fight to try to gain that trust, but first nations must have confidence building, they must get that trust back. What you're hearing now is frustration. People are scared and they're reacting. We should be coming here with confidence. We should be saying, this is what needs to happen, and taking that step forward, defining that relationship.

There was a very important man in your government, Pierre Elliot Trudeau, who said:

Clearly our aboriginal peoples each occupied a special place in history. To my way of thinking, this entitles them to special recognition in the Constitution and to their own place in Canadian society, distinct from each other and distinct from other groups who, together with them, comprise the Canadian citizenry.

So what is that special relationship? There is the challenge for all of us to look at and define, and you can't do that without having something tangible, where you can say, we're going to try this one. People have come forward and said, let's try this one. That's the challenge I put not only to government, but to first nations as well: you have to stop reacting and be proactive.

That's my presentation.

» (1715)

The Chair: Thank you very much. It was an excellent presentation, very helpful.

Mr. Martin, five minutes for the first round.

Mr. Pat Martin: Thank you very much for an enlightening brief. I admire your ability to speak off the top of your head so clearly and with such flourish.

I can relate to many of your points in relation to the work we have done, but you did make specific reference to the Penner report a number of times in your presentation, saying the road to self-governance had been addressed in the Penner report and the Royal Commission on Aboriginal Peoples. I moved a motion at a previous aboriginal affairs committee meeting that we should expand the representation on the committee, for the purposes of these self-governance bills, to include a representative from the Assembly of First Nations, maybe even the CAP and the Native Women's Association, with a voice, but no vote. At least they could be present for the deliberations on these bills. There's a precedent there, is there not, in the days of the Penner inquiry? Did they not have that ex officio representation?

Mr. Michael Mitchell: There certainly is. They had the Native Women's Association, the AFN, elders, and they contributed greatly. It was that mindset that came out. People were able to educate one another, see things they couldn't see before, and take steps towards something they would never have approached before because they had that body, they could talk among themselves and learn from each other. So I would really encourage that.

Mr. Pat Martin: Well, it was voted down, unfortunately, we lost it by one vote. I think it would have aided us a great deal.

It is unique that the minister gave this bill to the committee after first reading. Usually, it gets second reading and then goes to the committee stage. You would hope that at the first reading stage, which is where we're still at, they will be flexible and open to amendment. We'll certainly take guidance from many of the remarks you made.

One of the criticisms I've heard is that--and you were maybe active at this time--Bill C-7 looks an awful lot like the continuation of the white paper of 1969. Can you draw any parallels, or at least explain why some first nations leaders feel that way?

Mr. Michael Mitchell: Who is the authority at the end of the day? To me, the authority is the people you work for. To me it's far more important to have the audit, special meetings, and information going out to the community, and let them direct everything and participate in what you do. We have still a delegated, legislated authority. We don't have something you can take home and take ownership of. Maybe it doesn't mean anything to anybody, but to first nations it would mean a lot if they designed something that said, we're going to move forward, this is what we're going to agree to, we're going to do some nation building, we're going to do it together, and we're going to understand what we're doing. So it's not a big threat. That would be a far different concept. You just have to understand that notion.

Mr. Pat Martin: That's the opposition we're seeing now. People are saying it wasn't done in that order, it was imposed again.

I'm interested that many of the very admirable changes you made towards fiscal management in your community you accomplished without any Bill C-7. You took those steps within the parameters of the existing legislation. You required, perhaps, more administrative capacity to fix your deficit. You took audits to a degree beyond what's required in the Indian Act, by circulating those audits to the public and to the citizens of your community. In your opinion, is there anything stopping first nations communities from building that administrative capacity now, without Bill C-7?

Mr. Michael Mitchell: I don't think so. It's just good business, good administration. It's what many of them don't have an opportunity to do, because of the financial restrictions. They are very limited in what they can provide for their communities. While you're putting rules on them, you're not providing the resources, and they don't have the confidence to take anything over. Over the years you've had so much suspicion. This is where you have the Assembly of First Nations, even Indian Affairs, directing first nations to go and visit Akwesasne and look at the health program they took over, look at the court system they designed and how they serve their people. So we became that instrument.

That's one of the reasons I stepped away from politics for a while and said, let me do this. I took $50,000 of my savings to set up my company. I went back to those very same people and said, we'd like to have some kind of vision. I've been going to universities and talking to native students. I've been visiting first nations leaders and saying, what is it that you want to do, where do you want to start?” They will identify where they're at, and it will start there. It's just our own course, and it will not have a big impact, because this is not a big government thing, but the success is built on one after another at their level and what they understand.

» (1720)

The Chair: Thank you.

Mr. Hubbard.

Mr. Charles Hubbard: Thank you.

I'd like to commend you, Chief. You really show such enthusiasm, such dedication, and such insight. What you've done, certainly, you are to be commended for. I couldn't help but think of my friend Chief Roger Augustine back in New Brunswick, who has a similar concept about pride, about self-esteem. He, of course, has an institute too, called Red Sky.

We mentioned lawyers earlier and how they might help in developing codes, and we need good public servants among your people who can effect those codes and look after the financial management. I think, as a government, Mr. Chair, we really have an opportunity to meet a need here and assist, probably financially, different groups in developing a public service for the various first nations peoples across the country. You mentioned your own group going to New York state to train some of your people. Is there enough training available right now for the specific needs bands have to accommodate what we have here in Bill C-7, or will there need to be some input to get people ready for this new type of governance we speak about?

Mr. Michael Mitchell: That's a very difficult question to answer. I just testified that there's a lot of suspicion and fear about Bill C-7. You have the minister on one side and the AFN on the other, and there are barriers, and they'd be saying stuff to one another. The people are in the middle here. They want to know about governance, they want to know about confidence building, they want to go that route, but there's a lot of mistrust and fear. Is it what we want to take to them, or is it something first nations can author and design and collectively say, we want to have an accountable governance? Is there only one choice? Is it just Bill C-7 we're going to go to them with? What about RCAP? What about the Penner report? What about all the other very expensive processes we've gone through? Can we take something out of there if its meaningful? Because all you want from first nations is a reaction with confidence that they're going to be responsible and to participate. What if they shut that door and say, we're not going to go there, because we just don't feel this law is really giving us something we can claim ownership over? So I'm asking if there is another way to look at it, and I think that's what this committee is assigned to weigh up.

The Chair: Before I go to Mr. Martin for a three-minute round, I just, for the record, want to clear up that there is a precedent for ex-officio members of committees for a study, there's no precedent for legislation. I think that's the third time we've clarified it. There is no precedent, I'm told, for ex-officio members to deal with legislation.

Mr. Martin.

Mr. Pat Martin: Thank you, Mr. Chairman, and also for the record, it's the first time in 50 years we've had comprehensive amendments to the Indian Act, and some of us felt it called for extraordinary measures to get this thing right. I understand your clarification.

The Chair: My comments are not intended to take away from those arguments. I just wanted to clear the record, that's all.

Mr. Pat Martin: Fair enough.

The Chair: I'm not taking sides.

Mr. Pat Martin: One of the things that's come up in our early deliberations is, as the Auditor General actually said, that if anything, first nations communities are over-audited. By her numbers, 168 forms and documents have to be filed every year to the various departments, and we now know that 96% of all first nations submit their audits on time, have no problems with their accounting or record keeping, never get disciplined. So first nations we talked to are asking, if we get one kick at the can to try to fix the Indian Act, an evil, repressive document, why the hell are we dealing with administrative bookkeeping details instead of the real issues towards self-governance? Can you expand on that? Your community is obviously a good example, others as well. Why this fixation with imposing a new financial regime on communities as the first priority, when there are so many pressing basic needs issues out there?

» (1725)

Mr. Michael Mitchell: I said a while ago, do we have ownership? I think that's probably a good response. The answer is that we don't have ownership. Do we have ownership of design? Do we have ownership of control? No. The way to develop confidence in the community is to sit down together. There's been a click word going around in government for the last few years from Gathering Strength, partnership. Put real meaning into that partnership with first nations. And there's not just going to be one national model, you've got different situations. I heard a while ago that there's a big population in urban centres. Eighty per cent of first nations are in what we would consider small or medium communities. There's only a handful of very large communities like Akwesasne, Six Nations, Kahnawake. I've been able to do these things because I have capacity. The majority of the first nations in Canada don't have that luxury, don't have that capacity, so they need assistance. We need to really begin to work with one another. It's more important for them to have their national organization, their original organization, and develop that confidence building.

I know a lot of first nations have been very accountable in their reports and everything, and there's a system. As a matter of fact, that's one of the things I grew frustrated about. You're forever making reports and submitting reports, layer after layer, to every government department, but when you learn the system, you have very little time to ask about the real needs, then there's another election coming up. So when we went custom, we gave ourselves enough time to manage our financial arrangements, our administration, and then look at the problems we had to deal with. Sometimes, as with any government, you have to manage your deficit. You have to turn that around and put some things in place that mean a lot to your people, not just to fulfil the governance requirements, but to address the desires of the people you represent, so you can build. A lot of things have to be looked at.

The Chair: Thank you.

Ms. Karetak-Lindell.

Ms. Nancy Karetak-Lindell: Thank you very much.

Thank you very much for your very interesting presentation. I think we have a very large challenge before us. As a committee member and an aboriginal person, I feel very strongly the need to try to take two very diverse opinions and find some middle ground. I think that's a challenge before all of us here.

What's before us is Bill C-7. How can we translate what's in here into what you're saying? You did it without Bill C-7. That's a model we're all striving for, hoping for some of the smaller groups to come to some way of taking control of their lives. As first peoples of Canada, that's something we're all striving for in different ways--I know we come from different parts of the country. So how do we take a piece of legislation like this, which has had a very rough start, and make it reflect some of the things you talked about?

Mr. Michael Mitchell: Anything short of going back to the drawing board. I heard people say, just drop it, just can it, and start over again. I heard the minister say, it's not engraved in stone, we can make changes. So everybody seems to be sending out some kind of signal here. You're talking about middle ground: think nation. What is the confidence first nation communities and peoples need to have? Because those are all motherhood things you're putting in place: you've got to have this and that, and that's the great white father talking. What are the wants and needs of the people in our communities for their children, for their community, for the future? If we step back, all of us, a little bit and revisit that whole question, I think we'll find the answer. Because everybody is concerned about their own immediate social betterment and economic development, so we don't have to be a welfare society or have that mentality. There's certainly an opportunity to look again and re-evaluate.

My answer to you is, Canada is afraid to let first nations think nation, and for us that's confidence. That's really what I would recommend, looking at it as confidence building first, because we don't have a lot.

» (1730)

The Chair: Thank you very much. That was an excellent presentation. You have opened our eyes to the reality. I'm in politics because I believe governments should do for people what they can't do for themselves. You have proven that you are able to do things for yourselves. Hopefully, we can improve the legislation and bring it to the point where for others it will be easier because of the legislation.

I'm curious to know if you feel that if this bill had been in place, it would have been easier for you to do the things you did, in spite of the Indian Act?

Mr. Michael Mitchell: Then there would have been suspicion among my own people as to whether I was selling out, leading them now somewhere else.

The Chair: I won't put you on the spot. I understanding everybody is watching this, reading everything that is said, and weighing it.

Mr. Michael Mitchell: I'd like to ask if I can have two minutes for closing remarks.

The Chair: Absolutely. You can have five minutes.

» (1735)

Mr. Michael Mitchell: I want to read you a letter from Washington addressed to me. It's from the United States Department of Justice.

Dear Grand Chief Mitchell,

In the aftermath of the tragic events of September 11th, improving U.S. border security is of paramount importance. Mr. Gus de la Vina, Chief, U.S. Border Patrol, and I would like to strengthen the working relationship with our borderland counterparts. We believe that as native people of a sovereign nation, you share this common goal.

Who would have thought somebody from Washington would send a letter to a first nation and say, “as people of a sovereign nation”? It didn't kill anybody. With pride, first nation leaders went and sat down in Washington. I was one of them. We do have our own border security now. We work with border security in the United States and with the RCMP, and we're equal partners. Those are the things we're striving for.

People looked at Akwesasne a few years ago and certain members of Parliament pointed fingers and said, you are a border criminal community. Take a look now at the success. That's what I'm saying about governance. If you can go back and change the attitude and the mindset, you can do a lot.

I want to end by sharing something with you, if we're scared of the word sovereignty.

[Witness speaks in his native language]

I have United States stamps of recognition, I have Canadian, I have Mexican, I have others. It's a good way to record where you've been, what you're doing, and where you're travelling. I didn't get it just as a protest thing. I really believed in my nation and that we could be responsible, and I sat down with these governments and participated. I also have a Canadian passport. Did you ever hear of the concept of a dual citizen? I think I'm one of those, but it's more than that. With Washington passing and Congress ratifying the Jay Treaty, first nations in Canada have the same rights as other tribal members in the States. We're North American Okwehonwes. These are rights now that develop a lot of confidence for our people coming up, our young people, knowing their rights, knowing our place in North America. So I share that with you.

Thanks for inviting me, and I wish you luck in your future meetings.

The Chair: Thank you very much for accepting our invitation and for the contribution you made. You lifted our spirits, and we have even more confidence now that aboriginals are able to do things for themselves without kneeling before the minister. I don't think anyone around here believes it's correct to do those things. Thank you.

Mr. Michael Mitchell: You're welcome.

The Chair: Thank you, colleagues. The meeting is adjourned.