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37th PARLIAMENT, 2nd SESSION

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

EVIDENCE

CONTENTS

Monday, May 5, 2003

0910

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

Mr. Pat Martin (Winnipeg Centre, NDP)

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

0915

The Chair

Mr. Charles Hubbard (Parliamentary Secretary to the Minister of Indian Affairs and Northern Development)

0920

The Chair

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ)

0925

0930

The Chair

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

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

Mr. Maurice Vellacott

Mr. Warren Johnson

0935

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

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

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

The Chair

Mr. Pat Martin

Mr. Charles Hubbard

Mr. Pat Martin

0940

0945

The Chair

Mr. Charles Hubbard

0950

Mr. Paul Salembier

Mr. Charles Hubbard

The Chair

Mr. Réal Ménard

Mr. Warren Johnson

0955

Mr. Réal Ménard

Mr. Warren Johnson

Mr. Réal Ménard

1000

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

The Chair

Mr. Réal Ménard

The Chair

Mr. Pat Martin

1005

Mr. Réal Ménard

The Chair

Mr. Réal Ménard

Mr. Pat Martin

1010

The Chair

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

Mr. Pat Martin

The Chair

Mr. Pat Martin

1015

1020

The Chair

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

1025

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

1030

The Chair

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Paul Salembier

The Chair

Mr. Réal Ménard

1040

The Chair

Mr. Julian Reed (Halton, Lib.)

Mr. Pat Martin

Mr. Julian Reed

1045

Mr. Paul Salembier

Mr. Julian Reed

Mr. Paul Salembier

Mr. Julian Reed

The Chair

Mr. Pat Martin

1050

1055

The Chair

Mr. Maurice Vellacott

Mr. Warren Johnson

1100

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

1105

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

The Chair

Mr. Julian Reed

Mr. Paul Salembier

1110

Mr. Julian Reed

Mr. Paul Salembier

Mr. Julian Reed

Mr. Paul Salembier

Mr. Julian Reed

The Chair

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

1120

The Chair

Mr. Charles Hubbard

Mr. Warren Johnson

Mr. Charles Hubbard

Mr. Warren Johnson

Mr. Charles Hubbard

Mr. Warren Johnson

Mr. Charles Hubbard

Mr. Warren Johnson

Mr. Charles Hubbard

The Chair

1125

Mr. Yvan Loubier

1130

1135

The Chair

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

1140

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

Mr. Paul Salembier

Mr. Maurice Vellacott

The Chair

Mr. Pat Martin

1145

1150

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

1155

The Chair

Mr. Pat Martin

Mr. Charles Hubbard

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Charles Hubbard

The Chair

Mr. Yvan Loubier

1200

1205

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Pat Martin

1210

1215

The Chair

Mr. Pat Martin

The Chair

1220

Mr. Yvan Loubier

1225

The Chair

Ms. Joann Garbig

The Chairman

Mr. Yvan Loubier

1235

The Chair

Mr. Pat Martin

1240

1245

The Chair

Mr. Yvan Loubier

1250

1255

The Chair

1300

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

1305

Mr. Paul Salembier

Mr. Pat Martin

Mr. Paul Salembier

Mr. Pat Martin

1310

The Chair

Mr. Pat Martin

1315

1320

The Chair

Mr. Yvan Loubier

1325

1330

The Chair

Mr. Charles Hubbard

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

1335

The Chair

Mr. Pat Martin

1340

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

1345

1350

The Chair

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

The Chair

1355

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

The Chair

1520

The Chair

Mr. Yvan Loubier

1525

1530

Mr. Pat Martin

The Chair

Mr. Jeffrey LeBlanc (Procedural Clerk)

The Chair

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

Mr. Jeffrey LeBlanc

The Chair

Mr. Yvan Loubier

1535

1540

The Chair

Mr. Pat Martin

1545

1550

The Chair

Mr. Charles Hubbard

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Yvan Loubier

1630

1635

The Chair

Mr. Pat Martin

1640

1645

The Chair

Mr. Pat Martin

1650

1655

The Chair

Mr. Charles Hubbard

1700

The Chair

Mr. Yvan Loubier

1705

1710

The Chair

Mr. Pat Martin

1715

1720

The Chair

Mr. Pat Martin

The Chair

Mr. Charles Hubbard

Mr. Warren Johnson

1725

Mr. Charles Hubbard

The Chair

Mr. Pat Martin

The Chair

Mr. Yvan Loubier

Mr. Warren Johnson

Mr. Yvan Loubier

1730

Mr. Warren Johnson

Mr. Yvan Loubier

Mr. Paul Salembier

Mr. Warren Johnson

1735

Mr. Yvan Loubier

Mr. Warren Johnson

The Chair

Mr. Pat Martin

1740

1745

The Chair

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

Mr. Paul Salembier

1750

Mr. Charles Hubbard

The Chair

Mr. Yvan Loubier

1755

1800

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

1805

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

1810

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

1815

1820

The Chair

Mr. Yvan Loubier

Mr. Warren Johnson

1825

Mr. Yvan Loubier

Mr. Warren Johnson

Mr. Yvan Loubier

Mr. Warren Johnson

Mr. Yvan Loubier

The Chair

Mr. Charles Hubbard

1830

The Chair

Mr. Pat Martin

1835

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

1840

The Chair

Mr. Charles Hubbard

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

1845

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Yvan Loubier

1850

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

1855

The Chair

Mr. Charles Hubbard

The Chair

Mr. Pat Martin

1900

1905

The Chair

Mr. Yvan Loubier

1910

1915

The Chair

1920

The Chair

Mr. Pat Martin

1925

1930

The Chair

Mr. Yvan Loubier

1935

1940

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

The Chair

Mr. Pat Martin

2010

The Chair

Mr. Yvan Loubier

2015

2020

The Chair

Mr. Pat Martin

2025

2030

The Chair

Mr. Maurice Vellacott

2035

The Chair

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

Mr. Warren Johnson

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Yvan Loubier

2040

2045

The Chair

Mr. Roy Cullen (Etobicoke North, Lib.)

The Chair

Mr. Yvan Loubier

2050

The Chair

Mr. Charles Hubbard

The Chair

Mr. Charles Hubbard

The Chair

Mr. Pat Martin

The Chair

Mr. Warren Johnson

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

2055

The Chair

Mr. Yvan Loubier

The Chair

Mr. Yvan Loubier

The Chair

Mr. Pat Martin

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Maurice Vellacott

The Chair

Mr. Pat Martin

2100

2105

The Chair

Mr. Yvan Loubier

2110

2115

The Chair

Mr. Pat Martin

2120

2125

The Chair

Mr. Pat Martin

2130

2135

The Chair

Mr. Yvan Loubier

2140

2145

The Chair

Mr. Yvan Loubier

The Chair

Ms. Libby Davies (Vancouver East, NDP)

2150

2155

The Chair

Mr. Charles Hubbard

2200

The Chair

Mr. Yvan Loubier

2205

2210

The Chair

Mr. Charles Hubbard

The Chair

Ms. Libby Davies

The Chair

Ms. Libby Davies

The Chair

Ms. Libby Davies

2215

2220

The Chair

Mr. Paul Crête (Kamouraska—Rivière-du-Loup—Témiscouata—Les Basques, BQ)

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

Mr. Paul Crête

Mr. Andrew Beynon

Mr. Paul Crête

The Vice-Chair (Mr. Maurice Vellacott)

Mr. Paul Crête

2225

The Vice-Chair (Mr. Maurice Vellacott)

Mr. Andrew Beynon

The Vice-Chair (Mr. Maurice Vellacott)

Mr. Charles Hubbard

The Vice-Chair (Mr. Maurice Vellacott)

Mr. Charles Hubbard

Mr. Paul Crête

The Vice-Chair (Mr. Maurice Vellacott)

Mr. Andrew Beynon

The Vice-Chair (Mr. Maurice Vellacott)

Mr. Paul Crête

2230

The Chair

Marcel Proulx

The Chair

Mr. Charles Hubbard

The Chair

Mr. Paul Crête

The Chair

Mr. Paul Crête

The Chair

Mr. Paul Crête

The Chair

Mr. Paul Crête

The Chair

Mr. Paul Crête

2235

Mr. Dave Boileau (Senior Adviser, First Nations Governance for Policy Development Directorate, Department of Indian Affairs and Northern Development)

Mr. Paul Crête

Mr. Dave Boileau

Mr. Paul Crête

Mr. Dave Boileau

2240

Mr. Paul Crête

The Chair

Ms. Libby Davies

Mr. Dave Boileau

Ms. Libby Davies

Mr. Dave Boileau

2245

Ms. Libby Davies

Mr. Andrew Beynon

Ms. Libby Davies

2250

Mr. Andrew Beynon

Ms. Libby Davies

The Chair

Ms. Libby Davies

Mr. Dave Boileau

2255

Ms. Libby Davies

Mr. Dave Boileau

Ms. Libby Davies

Mr. Dave Boileau

Ms. Libby Davies

Mr. Dave Boileau

Ms. Libby Davies

2300

The Chair

Mr. Paul Crête

The Chair

Mr. Paul Crête

The Chair

Mr. Paul Crête

2305

Mr. Dave Boileau

Mr. Paul Crête

Mr. Dave Boileau

Mr. Paul Crête

Mr. Andrew Beynon

Mr. Paul Crête

2310

The Chair

Mr. Paul Crête

The Chair

Mr. Paul Crête

The Chair

Mr. Paul Crête

The Chair

Ms. Libby Davies

The Chair

Ms. Libby Davies

The Chair

Ms. Libby Davies

2315

2320

The Chair

Ms. Libby Davies

The Chair

Mr. Paul Crête

2325

2330

The Chair

2335

The Chair

Mr. Paul Crête

Mr. Dave Boileau

Mr. Paul Crête

Mr. Dave Boileau

Mr. Paul Crête

Mr. Dave Boileau

Mr. Paul Crête

2340

Mr. Dave Boileau

Mr. Paul Crête

Mr. Dave Boileau

Mr. Paul Crête

The Chair

Mr. Dick Proctor (Palliser, NDP)

2345

Mr. Dave Boileau

Mr. Dick Proctor

Mr. Dave Boileau

Mr. Dick Proctor

Mr. Dave Boileau

Mr. Dick Proctor

2350

The Chair

Mr. Dick Proctor

Mr. Andrew Beynon

Mr. Dick Proctor

Mr. Andrew Beynon

2355

Mr. Dick Proctor

Mr. Andrew Beynon

Mr. Dick Proctor

Mr. Andrew Beynon

Mr. Dick Proctor

0000

Mr. Andrew Beynon

0000

Mr. Dick Proctor

0000

The Chair

0000

Mr. Paul Crête

0000

The Chair

0000

Mr. Paul Crête

0000

The Chair

0000

Mr. Paul Crête

0000

The Chair

0000

Mr. Paul Crête

0000

Mr. Andrew Beynon

0000

Mr. Paul Crête

0000

Mr. Andrew Beynon

0000

Mr. Paul Crête

0000

Mr. Andrew Beynon

0005

Mr. Paul Crête

Mr. Andrew Beynon

Mr. Paul Crête

Mr. Andrew Beynon

Mr. Paul Crête

Mr. Andrew Beynon

Mr. Paul Crête

0010

The Chair

Mr. Dick Proctor

0015

Mr. Dave Boileau

Mr. Dick Proctor

Mr. Dave Boileau

Mr. Dick Proctor

Mr. Andrew Beynon

Mr. Dick Proctor

Mr. Andrew Beynon

0020

Mr. Dick Proctor

Mr. Andrew Beynon

Mr. Dick Proctor

The Chair

Mr. Paul Crête

0025

The Chair

CANADA

Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources

NUMBER 068

2nd SESSION

37th PARLIAMENT

EVIDENCE

Monday, May 5, 2003

[Recorded by Electronic Apparatus]

¿ (0910)

[English]

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

We 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.

We are on amendment NDP-39, at page 138.

Mr. Martin.

(On clause 17--Laws for band purposes)

Mr. Pat Martin (Winnipeg Centre, NDP): Mr. Chairman, as it's Monday morning now into May and we're going into probably the fiftieth hour of our study of this bill, and especially in the clause-by-clause section, endless hours have taken place, it begs the question, what do we hope to achieve when on the weekend we have learned that the future Prime Minister of Canada has no intention of implementing this bill because he essentially agrees with the position we have taken, that this bill is so flawed and so fundamentally wrong that it doesn't even warrant the energy and resources we're putting to it around this standing committee?

The Chair: Mr. Martin, I don't think that's what he said, but I'll let you continue.

Mr. Pat Martin: Mr. Chair, I have the quotations of what Mr. Martin said. This is dramatic proof. This is an illustration why I've always believed this country should be run by people named Martin, Mr. Chairman. It's a belief I've always maintained, and--

The Chair: [Inaudible—Editor]...get some work done, I'll tell you.

Mr. Pat Martin: And I've packed a lunch in anticipation.

Mr. Chair, all three of the candidates at the debate in Edmonton agreed that this bill has done more harm than good in terms of an injury versus benefit analysis. All of the candidates agree that they strongly oppose the bill and how it dictates and outlines how first nations should govern themselves in the future. The likely winner, Mr. Martin, vowed to work in full consultation with native leaders to come up with a bill that both parties can live with. He said, “We’ve got to have a fresh look at how this partnership is developing. This is a tremendous opportunity if we get it right from both sides.” He said, “There is a three-year implementation phase to this bill and I will not implement this bill as it is.”

This gave some hope to first nations leaders across the country who have been very critical that the government intends to spend $550 million to impose this package of legislation--these governance codes--on first nations who have made it abundantly clear that this is not the legislation they want or are interested in.

We're willing to continue with this clause-by-clause analysis. What frustrates us is that there has been no willingness to allow any of the amendments brought forward. Virtually nothing in the.... I believe this is NDP-39 we're dealing with now; this is the 39th attempt we've made to try to introduce amendments, and all of the amendments we've brought forward are amendments that were brought forward to us by first nations, by the aboriginal people of this country who will actually be affected by this bill. They brought their amendments to us saying, please bring these forward and argue them on our behalf, because those are the things we need in order to be able to accept this bill in any form. There's been no willingness whatsoever.

It's in contrast, Mr. Chairman, to what the minister himself committed to the committee and to first nations when he presented this bill to the committee at first reading instead of after second reading. Mr. Nault, the Minister of Indian Affairs, in his presentation to the committee said:

As I have said many times, and I want to repeat it here again, the First Nations Governance Act is not carved in stone. I am open to suggestions as to how it might be improved. You will know as parliamentarians it was delivered to you on first reading, rather than second reading so that....

Unfortunately I've lost the rest of that quotation, Mr. Chair, but he did encourage us to bring forward amendments and led us to believe that those amendments would be entertained.

Every single amendment we bring forward gets voted down summarily, without serious consideration and usually without even any questions from the government side, who are clearly here to rubber stamp this bill and to ram it through in spite of the overwhelming opposition from one end of the country to the other from first nations leadership--virtually everybody we heard from: all but ten. There were 191 opposed--that's organizations and institutions and people who have the right to speak on behalf of hundreds if not thousands of people. There were 191 presentations representing hundreds of thousands of people, versus 10 presentations representing a few people who were in favour of it.

The government's own website quotes people who, they say, are in favour of it. We've contacted those people and said: “Did you know the government is quoting you as being in favour of the First Nations Governance Act, from having selected sentences out of your briefs and presentations and putting them up as if you're in favour?” Often they say no, they didn't give permission and they don't support the governance act, and they've had to approach the government to ask that their names be taken off the website. If you notice a fluctuation in names in the website, it's because representatives of first nations are phoning these people saying: “Were you aware that the government is taking one line, or one sentence, or clipping together bits and pieces from your brief, to make it sound as though you support this bill?--when they do not.

Nobody does. We can't find anybody who supports this bill, not even the future leader of this country, the future Prime Minister of Canada, Paul Martin. He sees the folly in starting his new tenure, his new term as the leader and then the Prime Minister, under these kinds of circumstances. Why would you poke first nations in the eye with a stick and then start a new regime and hope to have any peace in Indian country after that? That's exactly what we've done.

This bill has set relations with first nations back 50 years, just in time to hand the whole stinking mess--Mr. Martin calls it a quagmire; I call it a stinking quagmire--over to him and say, there you go, it's your problem now, buddy, good luck. It's a tragic mistake.

We're burning up the energy and resources of the House of Commons, as we speak here, with the staff and resources, the translators, and all our time taken away from other issues, on a mission that we know is doomed to fail, on a mission that we know is potentially damaging, on a mission that we know is destructive to the relationship between first nations and the federal government.

It really makes you wonder. It's just an exercise in futility. It's crazy. It's crazy to keep repeating the same mistake over and over again, thinking the outcome is going to be different this time. That's what's crazy, and that's what is frustrating to first nations people about tinkering with the Indian Act instead of making substantive changes.

We note this weekend the news out of British Columbia that there is movement on four settlements of longstanding negotiations there because of a complete change in tone of the provincial government towards this resolve of those first nations. It's being featured in the papers in British Columbia as opening the door to economic development now that these negotiations are finally concluded.

So I just can't help but wonder if the same amount of resources and energy that we're spending trying to micromanage the lives of aboriginal people, in full contradiction to any idea of self-government.... If you compare that approach to what they've just done in British Columbia now, where they have embraced the concept of self-government and started to yield at the negotiating table and actually acknowledge the inherent right to self-determination, the sovereignty of first nations...that's being featured as a road to economic development. We've decided to spend our energies and resources reinforcing and shoring up the Indian Act, which has been 130 years of social tragedy, as opposed to the road to prosperity. We've made that choice, the road to prosperity or social tragedy, and we reinforce that choice every moment we waste on this stupid bill. Every moment our energies are taken away from working toward a meaningful resolve just reinforces and compounds the problem.

Now we're on a clause, clause 17, that dictates in great detail those things that the council of a band may make laws for. In other words, we've decided to micromanage any idea of sovereignty. It will be sovereignty as long as it's on the federal government's terms. It will be independence as long as it's dictated and prescribed--every minute detail of their lives--by the federal government.

I note that for a traditional economy and for economies based on traditional--

¿ (0915)

The Chair: Thank you, Mr. Martin.

Mr. Hubbard.

Mr. Charles Hubbard (Parliamentary Secretary to the Minister of Indian Affairs and Northern Development): Thank you, Mr. Chair, and Martin, Martin, Martin.... We're referring to so many Martins, I'm not sure here. They must be all the same clan.

We're dealing, Mr. Chair, with an amendment put in by the NDP. When the honourable member talks about micromanaging, I think his amendment really does go into micromanagement. I wonder about his argument, because certainly clause 17 doesn't get into micromanagement. But it does get into a very basic concept in terms of the Crown's responsibility in terms of fish in this country.

Being from Atlantic Canada, I'm very familiar that the Crown's basic number one priority is conservation. In terms of the attitude that DFO have taken over the years, after conservation, whether it be on the east coast or the west coast, the second requirement, in terms of meeting the obligations of the Crown with the fishery, is that the aboriginal people will have their share of the fishery.

We've had various agreements signed, both on the east coast and west coast, and our so-called commercial fishermen are down the list. In fact, in Atlantic Canada, with the salmon, the commercial fishermen have not had an opportunity to fish for nearly 20 years. So it goes: conservation; second, the aboriginal fishery; then you get into some recreational; and the commercial people have really been shut out. It's certainly a sad point to come to in eastern Canada that the Atlantic salmon, which is so much of our heritage--no recreational or commercial fishermen. In fact, for commercial fishermen, no fish; for recreational, you can only keep the smaller, usually male, species, called the grilse.

I know the honourable member referred to a statement somebody made out in Edmonton, but we have to recognize that when this bill came to committee, it had a certain wording, and it's our privilege and our responsibility as committee members to refine the bill and send back a better bill to the House. Really, Mr. Chair, all of us around the table are acknowledging that the original bill, as was examined in the House, needs refinement. I don't think anyone is prepared to accept a bill at first reading.

The honourable member has referred to various concerns that native leaders have had across this country, and he's also said that amendments are not possible. But as a whole, we have to recognize, Mr. Chair, around this table, that it was the unanimous adoption of a resolution or an amendment to the bill that brought in the non-derogation clause.

We've talked about the ombudsman and some concept of trying to deal with that, so we are open to changes. In fact, we'll probably have as many as perhaps 50 or 100 changes before this bill goes back to the House. I don't think any of us could simply say the bill, as it came to the House back in May or was returned in the fall of 2002, was such that we were prepared to accept the bill. We want to make changes to the bill; we brought in a lot of amendments.

Mr. Chair, it seems that today we are continuing the same dialogue we heard last week, but I think we have to be prepared to spend long hours to get this bill through and return it to the House in the best possible fashion.

I hope, Mr. Chair, I've explained this business on fish. The primary responsibility of the Crown is conservation. In terms of the agreements with first nations, we've always been generous with them in terms of the availability of the species, and they have second call in terms of the fish that go through their particular first nations places.

Thank you, Mr. Chair.

¿ (0920)

The Chair: Thank you, Mr. Hubbard.

Monsieur Ménard dix minutes.

[Translation]

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): Thank you, Mr. Chairman.

Despite the lovely weather, I can't hide my sadness at being here in Committee this morning, and noting the extent to which the balance which means so much to the Bloc Québecois, the Government of Quebec, and all those who believe in the right of self-determination of all peoples is upset, threatened, trampled under foot and violated. Indeed, that balance is not even hinted at in this Bill.

Today, we also have an opportunity to pay tribute to our friend and the Member for Saint-Hyacinthe—Bagot, who has done some extraordinary work on this file and with whom we will be continuing to work along the same lines.

I have been granted the privilege of being here to support the amendments presented by the Bloc Québecois and the NDP, particularly as regards a fundamental aspect of First Nation development: access to fisheries and natural resources. This is part of their history, part of their relationship with the land and nature. And yet, the kind of authoritarian relationship that the Bill suggests obviously can only evince a feeling of sadness among Members of the Bloc.

Mr. Chairman, I'm sure you will allow me to refer to a great Quebecker, for whom you certainly have the highest esteem, namely, René Lévesque. Much can be said about him, but there is one thing in particular that many political observers have recognized: he was a kind of visionary, a real trailblazer when it comes to relations with the Aboriginal peoples.

In politics today, the Aboriginal issue is on the agenda: it is unavoidable. As you probably know, in law faculties, many courses are now being taught on the subject. We know that Aboriginal law as a whole, is developing. The Supreme Court has handed down some very decisive rulings which support the right of self-determination, and Aboriginal rights will become increasingly important in the coming years.

One can easily imagine just how much of a visionary Mr. Lévesque really was, given that in 1984-85, he proposed that the 11 Aboriginal nations be formally recognized. So, we can now say that the Aboriginal nations are not simply societies and communities; they are also nations which have a right to ensure their own development, without being supervised by federal government officials.

The Member for Saint-Hyacinthe—Bagot, a man who is in every way measured and completely in control of himself at all times, drew to your attention, Mr. Chairman, the example of officials in Manitoba and Alberta who, having been paid $60,000 to provide instructions to band councils on a part-time basis, went completely against the very decision made by people democratically elected by their peers.

I repeat: in my opinion, we should pay tribute to the Member for Saint-Hyacinthe—Bagot, a member of our caucus of whom we are extremely proud. I would also like to take this opportunity, Mr. Chairman, to remind you that we are confronting a paradox here that observers will soon see. The previous Government of Quebec signed the “Peace of the Braves” and, increasingly, we are walking in the footsteps of René Lévesque.

But let's be clear, Mr. Chairman. The National Assembly, speaking with a single voice under the leadership of one of the greatest Quebeckers Quebec has ever known, in the person of René Lévesque, recognized that the eleven Aboriginal nations of Quebec occupying 14,770 square kilometers of reserved lands, had the right to self-determination and the right to control their own resources and develop their relationships based on the Aboriginal perspective. That is the legacy of René Lévesque.

At a time when these values are increasingly supported internationally, it is sad to see that Bill C-7 lays the foundations for a relationship that is one of guardianship. I don't know what your opinion is on the Liberal leadership, and I certainly would not want to be indiscreet about your position. However, in the news over the weekend, I saw that Paul Martin was fighting it out with John Manley and Sheila Copps. But Paul Martin is not just anybody.

¿ (0925)

So, the person who may be the next Prime Minister of Canada has said he will not implement this Bill, as it is currently drafted. “I will not implement this Bill as it is”, is exactly what he said, Mr. Chairman.

Our NDP colleague is well aware, and I will refrain from asking whether there was not a unanimous or almost unanimous desire to ask Paul Martin to appear before this Committee, to explain the reasons why he believes that Cabinet has erred. In my view, he should come before the Committee. Indeed, there will never be too many Martins in this Committee. The more there are, the better. However, each will have an opportunity to examine the sequence of events from his own personal perspective.

The fact is that a yellow card has now been raised, and if Paul Martin says he will not proceed with this legislation, it would not be out of line to think he probably has fundamental reasons for believing that. We are talking here about a man who was a member of Cabinet for nine years, was Minister of Finance, and tabled many budgets, of variable merit, but that is another matter altogether.

Mr. Chairman, what I am asking is that you show some respect for René Lévesque's legacy, that you show yourself to be a contemporary, the true son of your century, by respecting the right of the Aboriginal peoples to make their own decisions, and finally put an end to this guardianship type of relationship that the Bill provides for.

I believe the NDP amendment and those proposed by the Bloc Québecois move in that direction. The Member for Saint-Hyacinthe—Bagot, an enlightened mind in a century where there are far too few, pointed out in one of his speeches that 90 per cent of the Aboriginal communities have filed perfectly acceptable reports in terms of their accounting practices and general auditing processes.

In fact, the Aboriginal nations could teach Human Resources Development Canada a thing or two in that regard. We are not talking here about irresponsible people or bad managers who have wasted public funds and are not prepared to answer for their actions or be accountable to those who vote supply, to parliamentarians such as ourselves.

So, it is difficult to understand this aberration, that is bound to become an election issue. We in the Bloc Québecois will be reminding people about the authoritarian and cavalier attitude that prevailed in this case. Mr. Chairman, even choosing my words carefully, I have to say that the attitude taken towards the Aboriginal nations borders on contempt.

My feeling is that in some ridings currently held by the Liberals, the next election is going to be a tough one. The Aboriginal nations, as well as Quebeckers and Canadians in some communities, will remember that this Bill is not the one they wanted.

The courts had begun to mark out a path in terms of what should be a real partnership between the Aboriginal nations and our fellow citizens. And yet if I were to ask these amiable officials if they felt this Bill had taken its inspiration from the Erasmus-Dussault Commission, I believe they would be very unlikely to answer in the affirmative, given that this Bill deviates so significantly from the position taken by the Commission.

Indeed, I remember a scene that some may have seen on television. Mr. Martin, I don't know whether you remember seeing a very solemn Jane Stewart making an apology to all Canadians and the Aboriginal communities for the unfortunate events of the past. We were expecting the government to behave with dignity. It is perfectly acceptable for a government to make apologies; Brian Mulroney made such an apology to the Japanese community for what happened during the Second World War. But if the government is making apologies one day and presenting an authoritarian bill the next, we have good reason to wonder where we're headed with all of this.

This is a debate that's just beginning, and there are many amendments. But I have good news for you this morning, Mr. Chairman. I am going to ask my party whip if I can come more often. You and I feel no antipathy towards one another. So, I am going to come to Committee and follow this issue in the company of the Member for Saint-Hyacinthe—Bagot, and we will take all the time we need to do that. There is no need to get excited. In that respect, a German philosopher once said that haste is the enemy of intelligence. So, we will proceed with clause-by-clause consideration, constantly invoking the legacy of René Lévesque. We will be reminding you how relevant those values are in the debate in which we are engaged.

As my party's health critic, I have gathered information about the living conditions of the Aboriginal peoples. If the management approach taken by the government with respect to the Aboriginal peoples had been successful, our position would probably be different, but that is not the case. You will know, Mr. Chairman, just how far the Aboriginal peoples' living conditions are from meeting the standards we have a right to expect. And all of that, of course…

¿ (0930)

The Chair: Thank you, Mr. Ménard.

[English]

Mr. Vellacott.

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

My question is for Mr. Johnson or Mr. Salembier. I am trying to discern the obvious difference between paragraphs 17(1)(a) and 17(1)(b), but who knows how significant it is? At least in some measure they seem to embrace what Mr. Martin is attempting to achieve in amendment NDP-39. I'd like an explanation. As it stands, what seems to be exempted from paragraph 17(1)(a) is included in paragraph 17(1)(b), “the protection, conservation and management of wildlife and fish on the band's reserve”. But in paragraph 17(1)(a), there's a bit of a caveat with respect to resources “that can only be disposed of pursuant to a surrender under the Indian Act”. Can you explain the difference to us?

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

Fish is excluded in paragraph 17(1)(a), as it is dealt with in paragraph 17(1)(b).

The other reference in the bill with respect to resources subject to surrender is intended to ensure that while we are modernizing the natural resource and making the natural resource provisions of paragraph 17(1)(a) more generally useful in relation to the current section 81 of the Indian Act, we don't inadvertently intrude into those areas subject to surrender. Those are the areas subject to strict fiduciary rules or obligations under the Indian Act. As the minister and others noted to the committee earlier, it is not the intent of Bill C-7 to deal with fiduciary obligations. By excluding resources subject to surrender in paragraph 17(1)(a), we're specifically attempting to avoid any intrusion into areas of fiduciary obligation.

Mr. Maurice Vellacott: First of all, to whom is this subject to surrender? Is it in terms of the Crown's management...?

Mr. Warren Johnson: The way the Indian Act works is that those resources in the act that are subject to surrender, such as minerals, oil and gas, and land itself, are surrendered to the Crown for disposition. The Crown interposes itself between first nations and third parties in terms of the disposition of those types of assets. That's what creates the trust relationship or the specific fiduciary obligations. In Bill C-7 we're being careful to avoid any subject matters that would have the effect of altering those fiduciary obligations. That's been an undertaking throughout this exercise in the consultations.

¿ (0935)

Mr. Maurice Vellacott: In terms of that surrender, is it by the consent of the first nation, or not necessarily?

Mr. Warren Johnson: Yes.

Mr. Maurice Vellacott: It is.

So if there's a surrender of the resource to a third party, it's with the consent of the first nation on whose territory it is?

Mr. Warren Johnson: It is at the request and consent of the first nation.

Mr. Maurice Vellacott: With respect to paragraph 17(1)(b), if a first nation shows that it's part of their management of the wildlife and fisheries to use these commercially to get the numbers down and to thin them out a bit, can they do so under paragraph 17(1)(b)? If they could demonstrate or show that it's part of their conservation management, can they then proceed to use it personally, and commercially in some instances?

Mr. Paul Salembier (Senior Counsel, Department of Indian Affairs and Northern Development): I think if you look at paragraph 17(1)(a) right now, it's quite clear that the powers of disposition in that paragraph do not extend to wildlife and fish. Therefore, you would want to read paragraph 17(1)(b) in conjunction with paragraph 17(1)(a). I think it would be reasonable to conclude that when they use the word “management” in paragraph 17(1)(b), it does not include disposition. Otherwise, there would be a conflict between the two paragraphs.

Mr. Maurice Vellacott: When we talk about disposition, does it preclude the personal use of the resource at all?

Mr. Paul Salembier: Paragraph 17(1)(a) does mention “disposition for personal and commercial use”.

Mr. Maurice Vellacott: Right. So if they choose not to surrender the fisheries, and they have an agreement with the Crown that they're going to use it themselves, can they use it personally and commercially?

Mr. Paul Salembier: I don't think there's anything in here precluding agreements between a first nation and the Crown regarding the use of resources. What these sections do is set out the independent law-making jurisdiction of the first nation.

Does that answer your question?

Mr. Maurice Vellacott: Okay.

Mr. Warren Johnson: It might be helpful to set the context of this. The parliamentary secretary has articulated the government's approach to fisheries management respecting aboriginal and treaty rights. Given the detailed and significant ongoing negotiations and the number of fisheries agreements that have been reached on both coasts and elsewhere, one of the concerns we had was to be very careful in crafting language relating to fish in Bill C-7. We did not want the bill to introduce new issues or to disrupt those relationships and negotiations that have taken place or are under way.

Therefore, the language in paragraph 17(1)(b) was constructed to reflect as much as possible the status quo of the situation with respect to fish between the Indian Act, the Fisheries Act, and the current negotiations under way. That's why we have this paragraph separate from paragraph 17(1)(a). In expanding and making general purpose the natural resource law-making in paragraph 17(1)(a), we wanted to make sure we didn't inadvertently introduce new subjects that would require re-negotiation or re-opening of agreements, etc. We wanted to be careful not to do that, which is why the language is different and is in two different sections.

Mr. Maurice Vellacott: Thank you.

The Chair: Thank you, Mr. Vellacott.

Mr. Martin, your closing remarks.

Mr. Pat Martin: Mr. Chairman, dealing specifically with the amendment before some general comment, it's significant that as we speak the embers are still smouldering at Big Pond, New Brunswick, on fisheries-related issues, and as it pertains to the native fishery, of the four boats that were burned, one was owned by the Big Pond Reserve and three were owned by the federal government, purchased from fishermen to be allocated to fishers at the Big Pond Reserve--

Mr. Charles Hubbard: Big Cove.

Mr. Pat Martin: Big Cove, excuse me. Thank you, Mr. Hubbard.

I've met with the Mi'kmaq Eskasoni dealing with the fish management conservation strategy that they have for Bras d'Or Lakes, and all I can say is that as far as the current conservation track record of the federal government is concerned, nobody could do it any worse. First nations have been arguing for years that they deserve better direction and control of the very traditional resources that have been the backbone or the economic base of their culture for thousands of years.

The one aspect we find fault with, Mr. Chair--and you'll notice that our amendment seeks to recognize this--is that the reference in clause 17 of Bill C-7 deals only on the reserve, wildlife and fish on the band's reserve. Even in paragraph (a), the protection and conservation of natural resources within the band's reserve, the band's reserve and the band's traditional area are two completely different things.

That is what I mean when this bill tries to anticipate and either have an impact on existing court cases and claims or future court cases and claims. This is one example. I've been up at Pikangikum, Ontario, to that reserve and have seen the computer rooms they have set up and the new computerized program they have for modelling their traditional area above and beyond their reserve. The reserve is a couple of acres of abysmal swamp, absolutely useless land in most examples across the country. The reserve is a tiny little residential area, in most examples, a couple of hundred acres, etc.

The traditional area of use from which they gather their resources, etc., can be 10 or 20 times that. And the model used to plot that geographic region is getting to be very, very technical and detailed. Based on oral history, that Supreme Court rulings have ruled are admissible, there will be a traditional fishing camp, for instance, 150 miles from the reserve; there will be a traditional place where people always went to moose hunt; there will be places where people traditionally always went to gather a certain type of berry or medicines. All of that comprises the traditional area of use and will be a massive region.

This very narrow, prescriptive interpretation that this bill will implement in legislation and in law, the areas over which first nations may make bylaws to govern the harvest of wildlife or fish, will be limited by this definition to the reserve. It doesn't even entertain that an argument could be made that the area of harvesting resources can be broader than the couple of hectares of the actual reserve.

So that's part of the concern, Mr. Chairman, and it's typical throughout this entire document. This is one clause of one section that we're seeking to amend here to give a broader interpretation, at least to open the possibility that there's a legitimate claim to be made that people should be able to harvest fish or manage the resource beyond the minute area that their reserve actually sits on, that may in fact have no fish, wildlife or other resources to manage whatsoever.

The frustration regarding fish goes from coast to coast to coast. I mentioned Eskasoni. We talked about Big Cove. I've talked about the Heiltsuk people on the west coast of British Columbia with their herring spawn on kelp fishery, where the licences for the entire herring fishery are all held by non-aboriginal fishermen. Their way of getting herring roe is to kill the fish, cut it open, and squeeze the roe out. They then throw the rest of the fish away or make it into fertilizer and dog food.

¿ (0940)

If you want to talk about conservation, the traditional fishery is to dangle the kelp in the water, where the herring come and lay their spawn on the kelp, take the kelp away, salt it, and sell it to the Japanese at $50 a pound. Then the fish come back next year and do it again. That's smart. But do you think they can get a licence to do this, to expand their fishery? No, because all the licences are held by the non-aboriginal fishery.

Frankly, the only time we're even contemplating handing over the conservation to first nations is now, once the fish are all gone. Once we've raped and pillaged the resource to the point at which there's none left, we're willing to consider that on their own reserves they'll be allowed to make bylaws and rules to accommodate whatever they can find left, if there are any species left to harvest, Mr. Chairman. That seems to be the only willingness there is.

Nobody could do a worse job in managing our fisheries--nobody. You could get a roomful of chimpanzees and they would do a better job, frankly, than we have done in managing our fisheries and resources. We don't even know how to age groundfish. At the Pacific Biological Station at Nanaimo we're still trying to figure out at what age we should be harvesting groundfish and at what age we should be throwing them back. That's how immature our science is regarding managing our fishery, while somehow aboriginal people for thousands of years have managed a fishery, and a whole culture has been cultivated around those fisheries.

It's insulting to everyone concerned that the government should seek to introduce a bill like this--which is really a Trojan Horse--that under the guise of accountability and transparency they're seeking to address more substantial issues, like the hundreds of outstanding court cases that exist regarding traditional areas versus reserve, and the hundreds of court cases they anticipate, the hundreds of court cases that Paul Martin anticipates when he says, “I will not implement this bill as it is”, drawing enthusiastic cheering. “The government should not proceed to vote as it is now. This will simply lead to a decade of court cases”. That's the future Prime Minister of Canada during his weekend debate. Reuters newswire printed that. But Martin did say he strongly opposed a government bill on how native Indians should run their affairs and said that if he became Prime Minister he would refuse to implement it. Do we need to know anything more to realize that we're wasting our time and the resources of the House of Commons?

Not only are most of these clauses objectionable, not only is this entire bill objectionable to first nations communities right across the country, but it's all for naught, frankly. It's all moot because the future Prime Minister won't implement this bill, even if it passes every stage of second reading, third reading, the Senate, etc. If there's a three-year implementation phase here, the new Prime Minister says he won't implement it. It's a very public promise he's made to rounds of cheers and applause.

I don't think we should be playing politics with this particular bill, because it's too important. The missed opportunity that Mr. Martin talks about is something I've said around this table myself, that if we were serious about elevating the standards of living conditions of aboriginal people, and if we were serious about entering into a new era of relationships with first nations and the federal government, we would not be wasting our time tinkering with the Indian Act. We would be embracing a whole new model. We would be thinking outside the box.

We would be more accurately reflecting where Canadian people are, because Canadian people are actually willing, I believe.... If you took a poll today, Canadian people are willing to entertain a new relationship to actually get their minds around this concept of a true third level of governance within Canada, which would be first nations governments.

There is a growing acceptance of that idea. It's taken a generation to percolate into the public consciousness, but it is there. By proceeding with this bill, we're not only damaging the possibility of implementing those substantive changes, we're missing the opportunity, because it's rare that government has the political will or schedules this type of substantive policy shift within a particular Parliament.

¿ (0945)

We're here now in this Parliament, but we're wasting this time and the energy and resources with rancorous debate and hostility.

The Chair: Thank you, Mr. Martin.

We'll go directly to a recorded vote on amendment NDP-39, page 138.

(Amendment negatived: nays 8; yeas 2)

The Chair: We'll go to amendment G-8, page 139.

Mr. Hubbard.

Mr. Charles Hubbard: Thank you, Mr. Chair. I won't be as long as some of the speakers we've heard already.

I would like to refer to page 12 for this amendment, under clause 17, lines 6 to 9, where again we're making changes. I think we have to recognize the previous member talked about one man, but one man doesn't control the country, doesn't control a party, and doesn't control the House of Commons. I'm not sure where the Martin clan are coming from.

We have to recognize we have cabinets, prime ministers, and over 300 members in the House, and they decide the issues in this country. We, as parliamentarians, have to do our best under this legislation to bring good measures, a good amended bill, back to the House.

We're deleting lines 6 to 9 and replacing them with “commercial use of soil, sand, gravel, clay, marl, peat, timber, mushrooms, plants and plant products”.

Mr. Chair, we're amending the Indian Act of 1876. Maybe our witnesses could just mention to us this morning how this type of enabling legislation is improving the old Indian Act of 1876. From my recollection of the act of 1876, the Indian couldn't do very much with his products. I hope they've read the bill, maybe recently, and they can say how an Indian could get rid of his...if he had a cow to sell or if he had a bit of sand or gravel...how a first nation could dispose of materials from reserves. Under the old act, it was applied in 2003.

Paul, do you remember that part?

¿ (0950)

Mr. Paul Salembier: Certainly.

The proposed amendment does clarify the types of resources over which jurisdiction for their disposition will be conferred on first nations. Under the existing Indian Act there is a maze of interlocking provisions, some of which provide for surrender, some of which provide for dispositions without surrender. The proposed amendment is going to simply make it clear that when it comes down to soil, sand, gravel, clay, etc., first nations have the authority and jurisdiction to make laws providing for the disposition of those resources.

Mr. Charles Hubbard: This is a real improvement, Mr. Chair, over the present legislation, which simply and often denies first nations the right to dispose of their own resources.

The Chair: Thank you, Mr. Hubbard.

Monsieur Ménard.

[Translation]

Mr. Réal Ménard: Mr. Chairman, I understand that if, as a Committee, we were to pass this amendment, essentially this would allow for greater control of the resources available to the Aboriginal peoples. In that sense, I understand that this flows from a good natured sentiment. But of course, that is not enough. That is not enough to secure the support of the Bloc Québecois for this Bill, but it certainly suggests a trend that we would like to see enshrined in this Bill.

At the same time, I don't understand why the government is prepared to do that for this particular resource, for example, but not for what was suggested a few moments ago by our NDP colleague. There seems to be a lack of consistency in the government's position.

With your permission, Mr. Chairman, I would like to take this opportunity to put a question to our witnesses. This provision of the Bill seems to fairly closely reflect what the Erasmus-Dussault Commission recommended, but would you not agree that the Bill as a whole represents a complete break with what that Commission had recommended. If I were to put this question to our witnesses, I would be very curious to hear their answer, Mr. Chairman.

[English]

Mr. Warren Johnson: I'm not sure what the member's definition of “consistency” or “inconsistency” would be in this context.

To perhaps oversimplify, the royal commission was dealing with rights issues. It was putting forward the argument for nation building and implementation of what we now talk about--the inherent right of self-government.

This bill does not deal with that subject matter. That's clear in the preamble and purposes section of this bill. It was a commitment made before proceeding with the consultations at the request of first nations that those issues be dealt with through their negotiations and the resulting implementation legislation specific to those negotiations, as is now going on in the comprehensive claims and self-government process, as we saw, for example, with Nisga'a and at the numerous tables across the country.

It is true, however, and I guess this is where the consistency or support of the recommendations of the royal commission do find themselves, in a variety of places, without going so far as attempting to define the inherent right or the outcome of those negotiations, which the purposes section of the act and the preamble say the act should not be doing.

There are sections, a number of which have preceded this discussion in the committee's debate, that will provide some support to first nations in moving on the royal commission's recommendations. For example, one of the key aspects that's been referenced in that regard are the delegation authorities, which we'll see, I think, in the next section of discussion, that would provide clear legal authority for first nations to combine together or to delegate to higher bodies of their own making some or all of the authorities contained in that act in their process of re-establishing those authorities at the nation level subject to the negotiations under the inherent right.

¿ (0955)

[Translation]

Mr. Réal Ménard: Yes, but as you know, when the report of the Erasmus-Dussault was made public, with a number of appendices and additional documents, all parliamentarians received a copy of it at their offices, in keeping with our parliamentary practice, since this Commission was created by the Privy Council.

But the Erasmus-Dussault Commission focussed on two main areas. There was discussion of the kind of relationship that should be established with the Aboriginal communities, and the wish expressed that this relationship reflect the right of the Aboriginal peoples to determine their own future, following a path towards autonomy that was supposed to go much further than what this Bill is suggesting. The government was invited to engage in negotiations on a number of land claims. A permanent commission was even set up to follow up on those negotiations.

You are right that part of this Bill does not reflect the direction taken by the Erasmus-Dussault Commission, and it is for that very reason that without the opposition that the NDP and the Bloc Québecois have formed here, we would not be in a position to respect that legacy. And having read the report of the Erasmus-Dussault Commission, we certainly do not understand why, if this file is to be re-opened and we are to examine a bill of the importance of Bill C-7, the government is not willing to move in that direction.

But would you agree that there are some extremely important provisions in this Bill that will maintain a guardianship type of relationship with the Aboriginal communities? Once again, why proceed in this manner, when the future and the courts are asking us to follow a different path?

[English]

Mr. Warren Johnson: Yes, as I noted earlier, the government is currently at numerous tables across the country in modern treaty and self-government negotiations dealing with that issue.

We were asked by first nations in the context of this proposal, which is an interim measure in bridging the current Indian Act and where first nations are going in their self-government negotiations, to specifically not get into issues in Bill C-7 that would alter the fiduciary obligations, that those were better left for self-government and comprehensive claims negotiations. So we've specifically not done that here at the request of first nations. That was an undertaking of the government prior to launching the consultations.

[Translation]

Mr. Réal Ménard: But would you agree with me that the gestation period did not produce the child we were seeking to produce? As I understand the testimony of the First Nations, it simply isn't possible to claim that they wanted this Bill, that it is the result of a consensus and has the support of those directly affected by it. So, this may be a commendable effort, but we certainly can't say that the goal has been attained here. I believe that if legal challenges were possible, it is not clear that there would be no such legal challenges of this legislation in future.

As for the legacy of the Erasmus-Dussault Commission, I'm sure you would have to agree with me that in terms of the aspirations of the Aboriginal peoples, the government has completely missed its target, that it needs to do its homework again and that the best possible thing that could happen to this Bill would be for it to be withdrawn.

I think it's possible that the Aboriginal peoples' best ally may well be Paul Martin. Then, things will be done differently. I don't want to ask officials political questions, because that is not what we're supposed to do in our system. We are elected, elected again and re-elected in some cases, and that will certainly hold true for Bloc Québecois Members.

Once again, Mr. Chairman, I think we have a duty to support the amendment, because it reflects the kind of philosophy we would like to see, although it is our view that the government is a little flabby and lacks conviction here. Indeed, it is a veritable mollusc when it comes to defending the Aboriginal communities' right to access their own resources.

Mr. Chairman, since I still have some time left, I would like to remind you of something. As you know, there was a referendum in Quebec in 1995, and this was an opportunity for the sovereignist movement to think about the kind of relationship we wanted to develop with the Aboriginal communities. Mr. Parizeau set up travelling commissions and regional commissions. I myself was a member of the commissions set up in Montreal. This exercise was carried out all across Quebec and gave us a chance to think about the kind of relationship we wanted to develop. I would just like to quote from the draft bill, which was also the subject of consultations regarding the type of partnership we wanted to propose to English Canada. The draft bill on the sovereignty of Quebec stipulates that the constitution of a sovereign Quebec--you see, Mr. Chairman, we're not talking about trifling, insignificant matters here--:

must also recognize the right of the Aboriginal nations to govern themselves on those lands over which they have full ownership

As you see, we are not afraid to use words like “Aboriginal nations”.

So, Mr. Chairman, this is interesting, because Bloc Québecois Members and people of an age that reflects current opinion in Quebec are prepared to recognize…

À (1000)

Mr. Gérard Binet (Frontenac—Mégantic, Lib.) Lib.: Mr. Ménard, when Bloc Québecois Members do not agree, they…

The Chair: Mr. Ménard, you have the floor.

Mr. Réal Ménard: Mr. Chairman, there is no reason why we can't have friendly relations. I think the world of the Member for Frontenac--Mégantic, and it's true that we do exchange views from time to time. I have even given myself the self-imposed mandate of convincing him over the next two or three years to vote in favour of Quebec sovereignty. I'm not there yet, Mr. Chairman, because this is a long-term project, but one must never despair.

The government of Mr. Jacques Parizeau went a very long way in recognizing…

The Chair: Thank you, Mr. Ménard.

[English]

Mr. Martin.

Mr. Pat Martin: Mr. Chairman, thank you.

I note that the government is seeking to amend the very same lines in paragraph 17(1)(a) that I was seeking to amend, but in a much different way, where it was my intention to add to and to ensure that the list is not limited. It's the government's intention to narrowly and very absolutely outline what items shall be contemplated by the council of a band, that they “may make laws for band purposes in relation to” purposes in relation to the “commercial use of”. It intends to outline very specifically “soil, sand”--which is a real money-maker; I know selling sand is a really viable commercial enterprise--and “gravel”--gravel is a popular commercial enterprise. Certainly burrow pits are a legitimate enterprise, very low-tech, and the value of such is it's not easy to see how a community will go from third world conditions to first world conditions by selling gravel, limited to....

I note, though, that very generously the government has also included clay. Clay is a popular item too. I know you can market that readily and easily and make lots of money.

And mushrooms. Mushrooms are always good.

It includes “plants and plant products”. We pointed out earlier that part of this legislation is that it hasn't been put through the screen of traditional cultural mores, and so on. It would be more culturally sensitive to recognize that plants are the source of medicine for aboriginal people and that any limitation or any specific reference to this traditional source is offensive in that just by showing up in the legislation it's being limited and reduced to something from the spiritual to the legislated. It shows the insensitivity of this bill in many respects.

I've made the point that many people cite the dishonesty of this bill and that it's really seeking to achieve other things than it purports to. That dishonesty we can trace right to and including the website of Indian and Northern Affairs Canada, where the DIAND website cites 122 quotes in favour of the FNGA: 26 of these quotes, or 21% of them, are by the minister; and 9 of these quotes are from the minister's regional director for Saskatchewan, Mr. Bird. I have met Mr. Bird. So 30% of these quotes are from the minister or his employees. An additional 7 quotes were from Dwight Dorey, the Congress of Aboriginal Peoples, who accepted large amounts of money to support this bill. They were bought and paid for.

Of the other quotes, they were dishonestly taken out of context, and when contacted, those same people reversed their...or if you look at the rest of the context of their presentation, it's a far different impression.

I have examples here that I'd like to enter into the record for clarification. For instance, Chief Sophie Pierre of the Ktunaxa Kinbasket Tribal Council said:

the intent is to provide an interim step towards self-government that will provide First Nations operating under the Indian Act with the tools they need to foster good government....

What was not quoted by Indian Affairs from this same hearing is Chief Sophie Pierre's quote:

It does really irk me that we have to go off our own agenda and onto the federal government's agenda of putting all of this stuff in place simply to meet the federal government's requirements because they perceive some problems with accountability and transparency.

[I]t's the whole federal government agenda of continuing to treat us like children.

That's a far different quote. The first sentence she said was prefacing her remarks by reading from the government's own propaganda, and then her comments followed. It's her comments that followed that dictate the actual tone of her presentation.

Kathryn Teneese, the chief negotiator from the Cariboo Tribal Council, said:

Having lived under the Indian Act for all of our lives, we support the elements of the FNGA that make it easier for first nations to move from the Indian Act to the full exercise of the inherent right of self-government and to soundly manage our affairs....

À (1005)

Sounds fairly good on the face of it, but what was not quoted by Indian Affairs from this same hearing what that Kathryn Teneese, the chief negotiator from the Cariboo Tribal Council, when she said:

I'll go over some of the key concerns we have with the bill. First, a substantive provision should be included in the body of the statute, rather than in the preamble, that makes it clear that neither the Indian Act nor the First Nations Governance Act are intended to define the nature and scope of the right of self-government or to prejudge the outcome of any self-government negotiation. Second, a clear and effective non-derogation clause is an absolute requirement.... The third concern we have is the need for first nations to secure the necessary financial and human resources to meet the requirements.... This must be factored into the implementation plan.... Considerable resources will be required....

She goes on at great length to qualify the support. So there's a basic dishonesty about the level of support out there. The level of support that we heard of was negligible at the actual presentations to the committee.

Now, in paragraph 17(1)(a), I'd like to propose a subamendment to this amendment, Mr. Chair, which I believe would blend the concerns I raised and what the government brings up.

The amendment would add to the list, after the words “plant products”, “oil, natural gas, copper, diamonds, nickel, gold, silver, asbestos, molybdenum, zinc, iron ore, uranium, fish, wildlife, game, and other minerals of commercial value”, and I have this written down.

[Translation]

Mr. Réal Ménard: Could he repeat that, Mr. Chairman?

[English]

The Chair: You'll put it in writing and bring it to the clerk, or we'll pick it up.

[Translation]

Mr. Réal Ménard: Could he repeat…

[English]

Would you like to repeat for us?

Mr. Pat Martin: Yes, I'd be happy to repeat it before I submit it.

After the words “plant products”, in the government's proposal, it would add the words “oil, natural gas, copper, diamonds, nickel, gold, silver, asbestos, molybdenum, zinc, iron ore, uranium, fish, wildlife, game, and other minerals of commercial value”.

Mr. Réal Ménard: Please don't rush me.

Mr. Pat Martin: I'm sorry. At what point would you like me to continue?

Mr. Réal Ménard: You are not a Liberal. Don't rush me.

Mr. Pat Martin: After “asbestos”, I have, “molybdenum, zinc, iron ore, uranium, fish, wildlife, game, and any other minerals of commercial value”.

I'd like to submit that to the clerk to be considered as a subamendment to the government's amendment G-8.

À (1010)

The Chair: On the subamendment, Mr. Martin.

Mr. Charles Hubbard: I have a point of order.

The Chair: I have a point of order, Mr. Martin.

Mr. Charles Hubbard: This is, I believe, redundant, Mr. Chair, the bill says “protection and conservation of natural resources”. He lists many natural resources and I think the bill already covers natural resources.

Mr. Pat Martin: The government saw fit to list in very specific detail, “sand, gravel, soil, clay, peat, timber”.

The Chair: I will rule on the point of order.

If Mr. Martin wishes to list them, it's acceptable to the chair.

On the subamendment, Mr. Martin.

Mr. Pat Martin: Thank you, Mr. Chair. Thank you for your ruling. I agree that it would be preferable not to have to list any of the resources that a band or a council may make laws for, because it would be a given that within their jurisdiction, and I would argue within their area of traditional use, they would have participation in the disposition for personal and commercial use of those resources. To list them and to itemize them is limiting in and of itself; the very practice of listing them limits those things that they may be able to participate in.

The minister introduced this bill by saying it's a stepping stone to economic development. The whole premise was a speech made in reference to the Speech of the Throne saying--I'm paraphrasing--we're tired of spending all of our energies on rights and redress issues. We want to put all of our energy and resources into economic development so that first nations can move forward.

That was the basic premise, the purpose for even going forward with this bill, or the stated purpose. We believe there were many other secondary objectives that were more important. Having said that, it's completely ridiculous to look at economic development without talking about land and management of resources. And I've used the example that the largest cutting rights in the world are held by Timbec. It's a corporation that has the largest cutting privileges in the boreal forest of northern Manitoba, the largest single cutting rights in the world. Yet we have first nations scattered all through that area of cutting rights who have no access to the timber, or certainly no access to the revenue generated by the cutting of that timber.

So there are glaring examples all over the place where we have abject third world poverty conditions amongst the greatest wealth of natural resources arguably anywhere in the world. Canada is an absolute gold mine, figuratively and literally.

I worked in an asbestos mine in the northern Yukon. The guy who found the asbestos was Art Anderson, an old Indian man who was on his trapline. In fact, he was doing a little prospecting at the same time and stumbled across an outcropping of asbestos flaking right off the side of the mountainside near Clinton Creek, Yukon. This was their traditional area; it was on his trapline. His reward was that he was number one on the payroll. We'd sit in the same lunchroom; he'd have his lunch pail and I'd have my lunch pail. It was his mine. He found it, he discovered it, it belonged to his people on his traditional land, and he had no benefit whatsoever, just a hearty handshake, a pat on the back, and a job for life as number one on the payroll. This was what that first nation outside of Dawson City got for finding that asbestos mine. And Dawson City is a glaring example because it was the site of the 1898 gold rush, when they ripped up the entire Klondike River Valley with their dredges. That was traditional land of the first nations in that area.

Oil and gas reserves--the Lubicons' claim. The Lubicon are one of the first nations with the poorest social conditions in the country, in the heart of the greatest wealth generator of the country, without the benefit of their resources, etc.

So if we're talking about the commercialization of clay, if we're willing to cede the commercialization of clay to first nations, why are we not willing to see the commercialization of gold, diamonds, oil, natural gas, the things that are actually on their reserves? Even if they got a guaranteed 5% of what came off their reserve, frankly they wouldn't be living in third world conditions.

I've meant to bring Indian Affairs' own analysis of the reserves in Manitoba, where you open the book and you look at Shamattawa and it tells you how many homes have plumbing, how many homes don't, how many have to get water from the little stand pipe and carry pails of water back to their house, and how many have piped water. There are reserves all over northern Manitoba where, frankly, it looks like the Sudan because the mother sends the children to the stand pipe down the road and they wait patiently for water, which hopefully is potable and won't make them sick, and they dutifully carry that water home. These are the conditions that many first nations people live in, in the midst of wealth.

À (1015)

There's something so fundamentally wrong, and that's why we have to revisit in a fundamental way the relationship between the federal government and first nations, and not tinker with minutiae, with insignificant details, that by this act we declare that Indians will have control over their own clay, their own mud. They'll be able to produce that into a commercial enterprise and hopefully succeed in the wonderful free market system by marketing their mud on the free market.

It's almost comical when you think of it. I worked on the oil rigs in northwestern Alberta, in the yo-yo patch, in the traditional area of Treaty 8 first nations, and I know the wealth of resources there. Every time we hit natural gas, we would cap off the well and curse and move on to the next hole, because we wanted oil; we didn't want natural gas. There was too much natural gas. It was everywhere. You burn it off. I worked on a number of rigs for a number of different drilling companies, and never were there first nations people even working on the rigs, never mind participating in the bounty, in the unbelievable wealth that stems from the oil resources of the yo-yo patch of northern Alberta, northern B.C., and into the Northwest Territories--it covers those three jurisdictions.

Mr. Chairman, we are willing to contemplate that they can have all the mushrooms, and we specifically say they can have the mushrooms, but we'll take what's underneath the mushrooms. It's when those mushrooms rot for a couple of hundred million years that they turn into something valuable, then they turn into something marketable. Then you can elevate the standards of living conditions for your children when you have a bucket of oil. There's a big difference between a bucket of mushrooms and a bucket of oil when you're trying to sell them and trying to improve your community.

I see we're willing to allow peat. That's fine and dandy if you can get it to a market. I know in Prince Edward Island there are peat ranches or peat farms where they do in fact harvest and market peat. That's great, but it's not, frankly, a great starter. I would much rather have control of the iron ore on my reserve, and I argue it should be in the area of traditional use that there would be at least a sharing of those resources.

First nations people I've talked to haven't even said they want a monopoly on those resources. They want a share of those resources, especially in areas they've never ceded, they've never forfeited their rights to.

Molybdenum is another sort of mine I worked in, in northwestern B.C. I mention it because it's a rare thing, but it was also right smack dab in the traditional area of the northwest coast people north of Prince Rupert. Molybdenum is used to harden aircraft steel. It's one of the most valuable mineral elements that we mine in Canada. We were there to build the whole new town.

Not a single first nations person who I knew participated in the building of that town or the ongoing operation of the mine. There was no participation encouraged or assured or offered, other than that anybody would be allowed to apply for a job, but there were certainly no guaranteed benefits stemming from it. And that harvesting of molybdenum up Alice Arm and Kitsault, B.C., killed the fishery. As you flew in you could see the flume, the effluent coming from the mine, and you could see it in the water chasing out the Alaska king crab and all the ground bottom life. So not only did they not get jobs, but Alice Arm was literally denuded and sterilized because of that particular mine going there. We used to be able to drop a bicycle wheel down from the dock and an Alaska crab with a five foot span would crawl onto that wheel and you'd pull it up. After the mine got into operation, not a single crab is harvested in Alice Arm and Kitsault, B.C., any longer, because the flume, the effluent, denuded and sterilized the waters surrounding the mine.

Devastation. When you say we will maintain the conservation of a resource and then the secondary claim is to first nations when it comes to fish, that is the federal government's policy. Our record on conservation has been so atrocious that frankly we should be willing to consider a more shared co-management of these resources; maybe some of it would have survived for future use.

À (1020)

Uranium, zinc, fish. Again, I raise the issue of fish because aquaculture is becoming such a huge industry on the west coast and the east coast. First nations are specifically excluded from the participation in the commercialization of aquaculture.

The Chair: Thank you, Mr. Martin.

Mr. Vellacott.

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

I do have a question for Paul and Warren here. I do find it a little odd and I'm a little baffled at the fact that the change from paragraph 17(1)(a) to this particular one gets very specific.

First off, then, when we have a specific listing like this, I take it it would mean to exclude anything else that is not mentioned there. Would that be the correct understanding?

Mr. Warren Johnson: Yes. We attempted, as you see in the other law-making clauses, clause 16, clause 17, and clause 18 of Bill C-7, to use general purpose language. The difficulty we ran into here, relative to the original formulation in paragraph 17(1)(a) of those natural resources not subject to surrender...to avoid any change in the fiduciary obligations.... In the analysis, subsequent to the tabling of the bill, it was pointed out that paragraph 58(1)(b) of the Indian Act did provide discretion to the minister, without surrender.

The specific reference I would use is to non-metallic resources. That could be read to include oil and gas. Those resources are normally subject to surrender and disposition under the Indian Oil and Gas Act and through the operations of Indian Oil and Gas Canada. So we had a little problem that the words “not subject to surrender” might omit some significant fiduciary areas, if that formulation was maintained.

So the original amendment attempts to replace “subject to surrender” with the best language that the natural resource experts could come up with for all of those resources that we understand not to be subject to surrender. Therefore, it specifically excluded, for example, oil and gas and minerals.

In the context of the subamendment, that would then put two pieces back in here: fish and wildlife. This could create a potential conflict because there's different wording on the same subject in paragraph 17(1)(b). Secondly, it would include a whole series of minerals, the dispositions of which are subject to surrender, and that would potentially wipe out much of the fiduciary obligation of the Crown to first nations in those areas.

Mr. Maurice Vellacott: We understand this background of fiduciary responsibility and obligation, and it occurs to me that we really play the benevolent whatever, hopefully, at least. When we say it is our fiduciary responsibility to keep control of these things, and these other things, as in the listing here, we don't particularly have a concern with and they have the latitude, they are not subject to surrender.... So it's a bit of an interesting approach in the fact that fiduciary responsibility is for them, for their benefit and so on. What do we mean by that? Are we saying that we don't figure that they have the wisdom or intelligence to use those resources? I don't understand the fiduciary business. If it's for them and for their benefit, why would we keep control of it then? Do we not believe they would handle it appropriately?

À (1025)

Mr. Warren Johnson: No. That is not the issue.

The fiduciary obligation arises, in this strict sense, in the Supreme Court decision on Guerin v. R., where the Crown is interposing itself, where it has the legal decision in terms of the disposition of assets as between the first nation and a third party.

Currently under the Indian Act, and that's what the term “not subject to surrender” was attempting to provide a short form for, there is a range of issues relating to, for example, oil and gas, minerals and land, where their disposition is subject to a surrender of those resources or a designation of those resources to the Crown. Then the Crown is responsible for the disposition. It's a Crown lease with respect to those lands.

Those fiduciary obligations were created under the Indian Act.

The reason a serious attempt is specifically made to exclude any impact on those anywhere in Bill C-7 is, firstly, because that's what first nations requested. They wanted Bill C-7 to deal with governance, not to stray into fiduciary issues in terms of the disposition of assets, where the Crown interposes itself.

Secondly, it's because most, if not all, of those areas of fiduciary obligations are subject to joint work with first nations in terms of first-nations-led optional legislation. Since there's a great sensitivity among some first nations of altering any of the fiduciary obligations in the Indian Act, that should be an individual choice, an optional choice of first nations.

We have optional first-nations-led legislation in place or being developed in all of these areas. The First Nations Land Management Act is one that has already been put in place and that was discussed earlier in the committee's discussions. And there is work going on with first nations to develop joint legislation, again optional, that first nations can opt into with respect to oil and gas and moneys. That would effectively give first nations their own way of dealing with the fiduciary obligations, short of what they might want to be doing in self-government negotiations.

Their preference is not to deal with it in Bill C-7. First nations specifically requested us not to do that, but rather to deal with it where first nations were interested in moving forward through optional legislation that we have already put in place or we are working on jointly with first nations.

Mr. Maurice Vellacott: I think there'd be a number of us around the table here definitely of the view that first nations people need a land base, they need a resource base. That's been part of the problem. They aren't able to provide and give to their own people the services that we all think each one of us should be having as Canadians. I think a big part of the problem, obviously, is the fact that they don't have a land base, they don't have the natural resources. If that were granted to them, then there's no telling what could happen in terms of positive, prosperous success, if rightly managed and handled.

You're telling me then, if I understand you correctly, Warren, that in fact it's first nations leadership--and I don't know if by that you mean AFN, the various regional bodies, and so on--that are asking specifically to include things like wildlife and fish and so on.

Did I hear you correctly on that?

Mr. Warren Johnson: No. My reference is not to what is included but to what is excluded; that is, that those specific subject matters directly dealing with fiduciary obligations would not be part of this legislative initiative.

That was an original undertaking in all of the discussions prior to the formal launch of consultations. It was a key part in the first presentation to this committee a year ago from February in terms of the scope and background to this.

À (1030)

The Chair: Mr. Vellacott, two minutes.

Mr. Maurice Vellacott: Let me understand then.

The logic or the link was because they asked you to stay away from fiduciary obligation kinds of areas. Then the assumption or the presumption that these things were fiduciary obligation related...they didn't say to keep fisheries and wildlife out specifically. They said to take out the fiduciary stuff. Therefore, you concluded, as a department, that because these things were so inherent and direct-linked in terms of fiduciary obligations, that that was why.

Without them being specific, is that where you do the linkage then? Keep these things out--wildlife, fisheries and so on--because they're fiduciary related?

Mr. Warren Johnson: Wildlife and fisheries are not excluded. Wildlife and fisheries are dealt with in paragraph 17(1)(b).

Mr. Maurice Vellacott: So then what would be the issue with including it here?

Mr. Warren Johnson: You would have it in two different paragraphs using two different wordings on exactly the same subject matter. You'd be setting up a conflict within the legislation.

We're now discussing an amendment to paragraph 17(1)(a) and my comments on the fiduciary obligations with respect to the additions on other minerals as opposed to fish. Fish is dealt with in paragraph 17(1)(b). The potential addition of fisheries into paragraph 17(1)(a) would have it in two places in the same bill with different wording.

Mr. Maurice Vellacott: Would it be fair to say that for these things--soil, sand, gravel, clay, marl, peat, timber, mushrooms, plants and plant products—there's been no conflict or no “controversy”, as in Burnt Church, or as on the other issue of yesterday as well? Would it be because there's been no conflict or controversy surrounding these particular resources that we're including them? There's not been tension, and that's why we can therefore address it directly and now?

Mr. Paul Salembier: I wouldn't say this list of resources has been included because of any link to controversy. This is a list of resources that have traditionally not required surrenders for their disposition, and that's why they're included here. There's no link to controversy.

The Chair: Thank you, Mr. Vellacott.

[Translation]

Mr. Ménard. We are dealing with the sub-amendment.

Mr. Réal Ménard: Mr. Réal Ménard: Mr. Chairman, you will not be surprised to hear me say that we are naturally in favour of the sub-amendment that has just been moved. I just checked with the mover of the amendment to ensure that I had correctly understood its scope. Based on what I understood, we are not talking about an assignment here, but rather of co-management of resources. In other jurisdictions or other countries, there are examples of co-management that take the form of income division and appropriation. Such arrangements reflect not only the needs of the Aboriginal people, but also those of the surrounding communities. I've been asked to see this as a philosophy of co-management of resources and, in my view, to be true to the intention of the mover, that is how we should interpret this amendment.

I've been here since 9:00 a.m. and I think we should be giving greater thought to the kind of development we have in mind for the Aboriginal people. We are not only talking about transferring resources or making transfer payments, whether those transfers are associated with various specific programs or whether they involve equalization; what we really need to do is consider the kind of development, that the Aboriginal nations themselves would design, that would allow them to be players in economic development, exports and everything that allows communities or nations to become dynamic.

And yet since we began this morning, I have had the sense that there is a desire to constrain the development of the Aboriginal nations, and this is reflected in the uncertainty that comes through with respect to the resources that they will take control of. Those resources may be located on their lands--and I realize that this is not a closed list--but this amendment offers far more attractive prospects than what we see in the government's own amendment.

Of course, we are talking about resources that could give rise to exports or be very profitably marketed and that could, once they had been fully developed by the Aboriginal communities, allow the people living on those lands to start thinking in terms of economic development. Mr. Chairman, we are talking here about oil, natural gas, copper, diamonds, silver, zinc, iron, uranium, fish wildlife and game, which are all obvious inclusions, as well as other minerals having a commercial value.

Mr. Chairman, I think we should also remember that Robert Bourassa's government, timidly at first, and subsequently in bolder fashion, as well as René Lévesque's government, looked at the development of the Aboriginal communities in Quebec by signing the James Bay and Northern Quebec Agreement. In hindsight, having taken stock, we now see that agreement has not been beneficial to the Aboriginal nations. And there is no doubt that both in Quebec and Canada, the more prosperous the Aboriginal communities are, the more prosperous our society as a whole will be as well.

When I was studying history in the early 1980s--this doesn't make me look any younger, Mr. Chairman, but it is Father Time's fault--we were told, when the Laurendeau-Dunton Commission made its report public, that according to the list of development indicators for communities all across Canada and Quebec, the people in last place on that list were the Aboriginal communities.

Of course, I'm not saying there has been no improvement; governments have invested considerable resources. But what lesson can be drawn from the Laurendeau-Dunton Commission's findings in terms of what we have seen thus far?

Again last week, Mr. Chairman, senior officials from the Health Department came to talk to us about health indicators in Aboriginal communities. And don't think that the situation is wonderful. It almost looks as though people did not understand that the best way to generate lasting development and ensure that the Aboriginal communities could take charge of their own future would be to allow them to shape their own economic development.

This morning, I was surprised--even though my colleague, the Member for Saint-Hyacinthe—Bagot, had prepared me somewhat for this--to see government Members constantly putting the brakes on everything. They put their foot on the brake every time we talked about the economic development of the Aboriginal communities. So, in the name of what principle could we possibly decide we should not support and pass this sub-amendment?

À (1040)

[English]

The Chair: Merci, Monsieur Ménard.

Mr. Reed.

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

There are a couple of things about the subamendment I'd like to comment on first.

A whole bunch of elements have been listed here, and then it goes on to say “any other mineral of commercial value”. Why did you list the elements? Why didn't you just say “minerals of commercial value”?

Mr. Pat Martin: Why did you say “soil, sand, gravel and mud”?

Mr. Julian Reed: I'll get to that.

You've missed potash, chromium, lead, and tin.

Now, the fact is my friend Mr. Martin was belittling the value of sand, gravel, clay, and so on. I would invite him to come to the great riding of Halton and visit the industry that is there, or to visit Uxbridge, which my colleague lives near, and he would realize some of those values.

I would also comment on peat. There's an inventory that's been done on peat in Ontario, Mr. Chairman, that inventories 77 billion barrels-of-oil-equivalent, most of it in northern Ontario. So before my friend undertakes this kind of attitudinal thing, he should look at it in a more objective way.

I would make one comment as well about the government amendment--and maybe offer a friendly amendment--respecting the word “mushrooms”. I wonder if the word might better apply if it were “fungi”. I don't know. Maybe there's an explanation for using the word “mushrooms”, but mushrooms are not the only harvestable fungus by any stretch of the imagination.

I have a question, too, to help my ignorance on the subject. I realize that the oil and gas thing comes under another act, so that oil and gas is redundant here as an application. But could you explain to the committee what the phrase “subject to surrender” means? Some of us are not lawyers.

À (1045)

Mr. Paul Salembier: Technically, the Indian Act requires a surrender or a designation of reserve land for any rights or interests of the band or its members in all or part of the reserve. When you start getting into a legal analysis of what constitutes an interest in land, normally minerals, for example, are considered legally as an interest in land and would therefore be subject to section 38 and would require a surrender. This is part of the protective regime of the Indian Act, the intention of which is to conserve the reserve land base and the value of the reserve for future generations of first nations people.

That's part of what a reference to resources that require a surrender for disposition under the Indian Act would encompass.

Mr. Julian Reed: What would be the process here? I still haven't gotten through my head what the word “surrender” means.

Mr. Paul Salembier: Paragraph (a) of subclause 17(1) of this bill only deals with jurisdiction of a band to make its own laws regarding disposition of these substances. It doesn't in fact prevent the disposition of these substances. Under sections 38 and 39 of the Indian Act these substances can be disposed of, but there are mechanisms in place to make sure the band membership as a whole approves of the disposition of these valuable resources, resources that can have an impact on future generations--including of course, and primarily, the land base.

So under sections 38 and 39 there is a mechanism that requires a meeting of the band, a vote of members of the band, in order to permit the disposition of interests in the reserve.

Mr. Julian Reed: Thank you.

Thank you, Mr. Chairman.

The Chair: Your closing remarks, Mr. Martin, on the subamendment.

Mr. Pat Martin: Mr. Chair, just to make it clear that subclause 17(1) as amended by G-8 would read in part:

The council of a band may make laws for band purposes in relation to (a) the protection and conservation of natural resources within the band's reserve, and the disposition for personal and commercial use of

--and then it goes on to list soil, sand, gravel, clay, marl, peat, mushrooms, plants.Incredibly, it doesn't list anything you would normally associate with being lucrative or valuable. I concede that a truck full of gravel is certainly marketable, and having a burrow pit on your land that you can sell gravel from is valuable, but it doesn't compare with oil, gas, natural resources, diamonds, nickel, and gold. The reason I've listed those things, albeit not comprehensively, was to point out the ridiculous comparison between the things that we choose to cede to first nations people compared to the very things that are in fact found on first nations land.

If we're going to list the natural resources over which a first nations band and council will be able to make laws for their commercial use, the existing list doesn't even mention fish and wildlife. You say that fish and wildlife come later on, but we should read paragraph 17(1)(b), which says, “the protection, conservation and management of wildlife and fish”--not the commercial disposition or the commercial use of wildlife and fish. They have no jurisdiction or control over the wildlife and fish, even though it's on their own reserve and it's the backbone of their entire culture, and their food source.

This is why I move the subamendment, to point out how it's almost comical, if it wasn't so sad, frankly.

As we speak, we have a situation where the United Nations envoy is touring northern Manitoba reserves all weekend. He's just concluded his tour. Conditions on first nations reserves in this country are an international embarrassment. They are this country's greatest shame, and yet the once every fifty years that we open the Indian Act to try to address this international embarrassment, we decide, in our generosity, to cede control over mud to first nations, but we will keep control over copper, diamonds, gold, molybdenum, and uranium, and all of those things.

That's exactly what it is like within the reserves. You pick the rockiest piece of swamp you can possibly find to plunk these people on, and if they happen to find something valuable underneath it, they don't have the right to make laws for band purposes in relation to the disposition or the commercial use of any of those resources, except those specifically cited in this bill.

Peat, that's a great comfort. In the northern boreal forest and the Precambrian shield, you're not going to find a lot of peat. You might find moss, and we could sell moss to those people chinking log cabins. I suppose that would be a good commercial enterprise for economic development.

That's why I raised this issue, Mr. Chairman. It's not because I have any prescriptive details associated with the sharing of these resources, but to simply say that we can't talk about economic development and moving the economic situation of aboriginal people forward unless we deal with lands and resources. Yet the bill is silent on this, except for this very detailed list of....

Mr. Reed asked why I outlined iron ore, zinc, silver, and did not put in tin. First of all, tin is a composition of two other things, zinc and another product. But it's ridiculous to itemize these things in great detail because it limits the things being contemplated. It's no more ridiculous for me to list a number of valuable commodities to compare to your very basic and rudimentary commodities of gravel and mushrooms. We're giving legal jurisdiction over mushrooms to first nations people, and the only comment you have to make about that is that perhaps we should have said fungi instead of mushrooms.

Do people not see how crazy this is? People don't seem to get it how offensive this whole discussion is. And it's moot, because as I say, the future Prime Minister won't even sign on to the stupidity of this bill, and won't implement it. So it is a moot discussion, but it gives us a forum to maybe visit what's fundamentally wrong with this picture we're arguing over.

À (1050)

And this United Nations envoy travelling to Pauingassi...I just went to Pauingassi last month. I took the leader of our party to Pauingassi. I wanted him to see some conditions on a first nations reserve. It's a fly-in reserve...you can't even fly into Pauingassi; you have to fly into Little Grand and then take a winter road to Pauingassi. He didn't like it either. He didn't think much of it.

The United Nations Commission on Human Rights appointed Mr. Stavenhagen, a Mexican citizen, as a special rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples. Well, he came to Manitoba to see with his own eyes what it's like around there, around my home province, Mr. Chairman, and he's not impressed either. You can read the article in today's Winnipeg Free Press yourself, or maybe I'll read it to you later as we get onto midnight and two in the morning, as we're arguing these fundamental rights and freedoms of self determination.

Now we have an international witness in the country while we're embarking on the stupidity of dealing with this bill, that has nothing to do with self-governance but is called the First Nations Governance Act.

Well, we're in a fishbowl now; the world is watching this incredible contradiction that we have within our grasp and within our reach, the ability to give remedy to this historic injustice, and instead of choosing to do so, we're tinkering with whether sand, gravel, clay, and mushrooms shall be within the jurisdiction of first nations people to liberate themselves, emancipate themselves with control over mushrooms. They'll take a pail of mushrooms to market and sell them, thereby developing economic development. I should point out that mushrooms are only around for two weeks of the year; it really doesn't give a great deal of comfort.

Larry Chartrand, a professor of the Faculty of Law at the University of Ottawa, said of paragraph 17(1)(a), “This provision is in violation of aboriginal and treaty rights. This needs to be amended.” So the government brought forward an amendment with a bogus list of a wheelbarrow full of commodities that will now be included as jurisdiction for aboriginal people. This is the dishonesty of this bill, Mr. Chairman. Instead of dealing with issues of substance, it's dealing with issues of trivia.

People should read the Globe and Mail today too, because it actually quotes the Royal Proclamation of 1763. Maybe our being here is not a waste of time after all, because we have lead editorials from Shawn McCarthy, the Ottawa bureau chief, talking about the Royal Proclamation of 1763, in which it was recognized that these peoples are not to be molested or disturbed on those lands not ceded to the Crown, Mr. Chairman. It's a policy...I mean, witness after witness after witness said “Our relationship is not with the federal government, our relationship is with the Crown”. That's why the Constitution Act of 1982 of first nations people had to demonstrate and protest to move the fiduciary obligation from the Crown to the Government of Canada within our Constitution, so that all those obligations are transferred now to the federal government.

It hasn't done a great deal of good, but we need Canadians to get their mind around the fact that that obligation exists and that the treatment of the first nations issue is prescribed in detail, either in treaty or as an extension of the fiduciary obligation under the Constitution Act, now, of 1982.

Giving meaning and definition to section 35 of the Constitution would be a better exercise than trying to outline which mushrooms will be the jurisdiction of first nations and which plants and plant products. We're tinkering with minutiae and we're missing the big picture; we can't see the forest for the trees, if you will.

Well, the world sees the bigger picture. When we had Desmond Tutu come here from South Africa and tour northern Manitoba reserves, he was as shocked and appalled as the United Nations envoy from the Commission on Human Rights is shocked and appalled at what he is seeing.

À (1055)

Those of us around this table, with the power to actually do something about it, are squandering that opportunity, squandering the dying days of a Liberal regime. In the last few months of this government, of this particular regime, we have the opportunity, we have the political permission, to deal with the Indian Act. And instead of making substantial changes, we're wasting our time.

The Chair: Thank you, Mr. Martin.

We now go to the vote on the subamendment, a recorded vote.

(Amendment negatived: nays 7; yeas 4)

The Chair: We now go to the amendment.

Mr. Vellacott.

Mr. Maurice Vellacott: I do find it passing strange, Mr. Chairman--and I know we've had explanations from our department people here today--that in fact the removal of the wording that was there before somehow wasn't seen to be good enough. I guess that would be my first question, before I make some other comments.

Why was it necessary to remove lines 6 to 9, as were in the booklet before, and then do this specific insertion? Why was that not felt to be adequate in terms of lines 6 to 9, if that's the intent of the act, and to keep a whole lot of things left out of that because they're pursuant to a surrender? Why was it not fine enough and adequate and comprehensive enough to leave it as it was before?

Mr. Warren Johnson: The difficulty was that in meeting that intent it was discovered that paragraph 58(4)(b) of the Indian Act provides the minister discretion with respect to...I think the terminology there is “non-metallic resources”.

You'll notice the list here includes some of the metallic resources, but that terminology, given that the Indian Act was written some hundred-odd years ago, would also potentially include oil and gas, which is traditionally subject to surrender, and has a fairly elaborate infrastructure to maintain the fiduciary obligation in terms of good technical information to bands in the disposition of their oil and gas. Informed consent in monitoring of those arrangements and the leasing and permitting responsibilities are all those of the government. That effectively defines the fiduciary obligation, that it's the responsibility of the government in those areas.

For example, the oil and gas operation, because of the volume of commercialization in the oil and gas sector, is a very significant undertaking. There's an independent agency, Indian Oil and Gas Canada, located in Alberta to manage that. It has its own act under the Indian Oil and Gas Act. We discovered that the use of the term “just surrender” might inadvertently overturn that fiduciary obligation and the application of those functions with respect to first nations.

The only alternative to avoid that was to create this positive list, positive in the sense of a list that states all of those areas that are understood not to require a surrender for their disposition. Therefore, by stating that positive list, you have the same impact. These are the ones that traditionally do not require a surrender. It's the same intent; it's different wording.

Again, the change or amendment was put forward in an attempt not to inadvertently change the fiduciary obligation with respect to oil and gas, since that was not something we consulted on. It was an undertaking with first nations that we should not be doing that.

Á (1100)

Mr. Maurice Vellacott: Did we include, then, all non-metallic substances aside from oil and gas? Is this list comprehensive and inclusive enough so that absolutely everything is included of non-metallic substances aside from oil and gas?

Mr. Warren Johnson: That's our understanding--other than, again, excluding oil and gas and minerals that are subject to disposition by the Crown, as opposed to the first nation, in creating the fiduciary obligation. This was the list of all those items that weren't captured by that.

Mr. Maurice Vellacott: In other words, those things of commercial value other than oil and gas, all the non-metallic substances. Somebody could come up with other things, as I'm sure they will over time, as they decide or it's found out this has some personal and commercial value. I don't think we're saying that's not a possibility, by way of an exhaustive list here. Is my assumption correct? Somebody will surely stumble into something else non-metallic that could be used at some point down the road.

Mr. Warren Johnson: That could very well be the case, and there would have to be a legal determination at that time whether the general introduction in this listing would include it or whether it would require a change. That's why we attempted, unlike the Indian Act, to stay out of listings--because of that problem of avoiding one--but in this case we found if we didn't do it we created a potential problem.

Mr. Maurice Vellacott: The sequence, then, and I don't know whether Warren or Paul can explain it to me, in terms of bands now in the country--and you mentioned the name of the body in Alberta.... What was the name of it? Indian...?

Mr. Warren Johnson: Indian Oil and Gas Canada.

Mr. Maurice Vellacott: Okay, Indian Oil and Gas Canada. So the sequence is that a band--and is this just in respect of bands in Alberta?--goes to them, and they are the middle man, if you will, who then makes the arrangement for them to have the access, the utilization, or the commercial share of it: is that what any band in the country does?

Mr. Warren Johnson: It's any band in the country. And these are first nations resources, so it's not that they have a “share” of them. The first nations decide how they should be disposed of, and Indian Oil and Gas Canada is the organization that provides technical support to first nations, according to the Indian Oil and Gas Act, in making sure they have the information they need in negotiating those arrangements and deciding on the dispositions of royalty rates.

Since it is an area of fiduciary obligation for the Crown, it is our duty to make sure they have that information, that we resource them adequately for that. In this case it's done through Indian Oil and Gas Canada, and then it's the Crown that is actually responsible--because again, it is an area of fiduciary obligation--for the permitting and leasing itself. These are actually Crown permits and leases done on behalf of the band.

Mr. Maurice Vellacott: This Indian Oil and Gas Canada is basically a resource body? They're not involved at all with the negotiation in terms of reaching an agreement; they just simply provide technical information and sharing of knowledge, and so on?

Mr. Warren Johnson: Formally, if we wanted to get into further detail we might have to either get that information or bring other experts forward, but I think it is true--and Paul may be able to comment--that formally in these areas of fiduciary obligations, since it's Crown leasing and permit, legal duty for the negotiation is the Crown's. But the way we operate is in consultation, and in consultation first nations want more often than not to be the ones doing the negotiation. We defer to them on that, but make sure they have the information they need. We provide them with whatever advice is appropriate to a fiduciary trustee on the results, and it is the Crown itself, through Indian Oil and Gas Canada, that actually does the leasing.

Á (1105)

Mr. Maurice Vellacott: Technically, let me understand this. From the point of view supposing oil and gas were included here, there's nothing to prevent that band or first nation from going to Indian Oil and Gas Canada, or any other such body that may have similar kind of knowledge it is willing to share with them, and accessing through it--I suppose on a fee basis, or something where they get the information--with Indian Oil and Gas Canada helping them. If oil and gas were included, there's nothing that would prevent or stop that kind of arrangement or working relationship from occurring.

Mr. Warren Johnson: That is correct. But the two things that would change--which is why we're being careful not to get into fiduciary issues in Bill C-7--are that there would no longer be a Crown responsibility to do it, and there would no longer be a Crown liability for the result.

I would urge that the committee be very careful in this area, because that is why first nations--universally, as I understand it--did not want Bill C-7 to be dealing with that subject: they wanted to be dealing with those subjects through their own legislation that I referred to earlier, because it removes both the duty and the responsibility from the Crown.

Mr. Maurice Vellacott: Okay.

I'm not sure how much you're prepared to respond to this one, but would it be fair to say then that the thinking at the present is if the oil and gas were included here there would maybe be some band council or chief and council who would be shortsighted in their approach and would think, “Well, this is a good thing for us in the here and now and would give us a spike in revenues”, and so on, but they might be too quick to sign a deal that would put at risk that resource for the future long term--for the next generation, and so on? Is that why we would be excluding it?

When we talk about the Crown and its fiduciary responsibility in protecting it for the long term, I think by inference we're saying we believe there could be situations where the first nation would not make a good long-term decision and thereby would lose the resource for their band members in the subsequent generations. I'm not trying to set you up; I'm just trying to ask what the thinking is. Is it that they're not in a position, maybe, to make a good long-term decision sometimes, or they could be too shortsighted and thinking only of their immediate next-year re-election, or whatever?

Mr. Warren Johnson: No, that isn't the thinking. The thinking is quite simple.

To come back to it, through the First Nations Land Management Act, in all of the resources cited in an earlier subamendment, we already have authority that first nations can use if they want to do that. But it's their own option and through their own informed consent, because first nations do not enter into changes in fiduciary obligation lightly and without significant consultation.

We are developing the same work right now with first nations in Alberta for oil and gas, but in the meantime, for first nations that don't want to make use of that option, they are protected, if you will, by the Crown's fiduciary obligation. It's not a judgment on whether they're able or not to do it; rather it's to reference that it's the Crown's position and it's the first nation's demand that it be at their request.

Mr. Maurice Vellacott: Now, let me understand that. I'm seriously trying to understand the difference between the land management act, that scenario and that particular process, compared to what the situation would be if it were included here.

The First Nations Land Management Act...help me on this, Warren or Paul. It's a more complete, more thoroughgoing process of consultation and consensus and so on, whereas this might be acted upon just by chief and council?

The Chair: Thank you, Mr. Vellacott.

Mr. Reed.

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

As a point of clarification for me, any other resources that are not listed, I take it, continue under the present legislation?

Mr. Paul Salembier: Yes, that's true.

Á (1110)

Mr. Julian Reed: Okay.

And that present legislation is designed to provide protection?

Mr. Paul Salembier: The present legislation requires that for the disposition of other resources the members of the first nation have a say by means of a surrender or designation vote. The effect is that this provision gives the band council unilateral power over the disposition of the named resources here and keeps the disposition of other resources with the band membership as a whole.

Mr. Julian Reed: I see. Well, then, I think I'm satisfied this is a correct amendment.

I'm curious, maybe as curious as Mr. Martin, as to what the thinking was when the decision was made about mushrooms. It sounds trite, but it's--

Mr. Paul Salembier: Yes, it does. I think it all comes down to an uncertainty on the part of the agricultural specialists as to whether mushrooms fell within the category of plants. Since there was some uncertainty as to whether they were plants, it was felt better to specifically list them to make sure they were not inadvertently excluded. That's all there is to it.

Mr. Julian Reed: Sure.

Thank you very much, Mr. Chairman.

The Chair: Thank you.

Monsieur Loubier.

[Translation]

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

I find what I'm reading in this amendment to be a little ridiculous. The resources on First Nations' lands that they should be able to use and develop in future are all the resources located on those lands.

It should not be part of those resources--for example, limited to sand, gravel, clay, timber, mushrooms, plants and plan products. It should be all the resources.

Negotiating self-government, which is something we should be doing even now, involves negotiating every aspect of what is implied by the inherent right of self-government. It should be explicitly stated that the Aboriginal nations have full jurisdiction over all the resources on their land, because it is their land.

I can't understand why the government feels a need to list only part of the resources located on First Nation lands. It should be understood that the Aboriginal nations have full sovereignty over all those resources, including sub-soil assets.

Furthermore, I am extremely skeptical about this motion when I read both sub-paragraph 17(1)(a) and the amendment. It says that the First Nations can make laws for band purposes in relation to those resources. But at the same time, sub-clause 17(2) annuls their lawmaking abilities, even in restricted areas relating to resources on their lands. This is what it says:

(2) In the event of a conflict between a law made under this section and an Act of Parliament and any regulations made under this Act or the Indian Act, the Act or the regulations prevail to the extent of the conflict.

In fact, there are real restrictions placed on the natural resources the federal government, in its great generosity, is prepared to grant the First Nations, when in fact, those resources belong to them. Then they only talk about a very small part of those resources. In addition to that, they're taking away the Aboriginal nations' right to make laws, based on their own needs, with respect to that small portion of resources found on their lands, if ever the provisions of those Aboriginal laws come in conflict with an Act of Parliament or any other law.

This is a flaw that we have seen over and over again, throughout this Bill, since we began analyzing it. You can't, on the one hand, recognize a right of self-government over certain lands, and then claim to be entitled to circumscribe that self-government authority, by limiting it to certain resources and limiting the ability of First Nations to make laws in areas of jurisdiction that should be their own, rather than ours, when the inherent right of self-government is finally realized through a formal agreement.

Despite the government's claim to want to help the First Nations rebuild, what we see is an ongoing attempt to put a spanner in the works, which is really the most odious aspect of this Bill. I read large parts of a document I was given last week, which dates back to 1983 and is entitled: Indian Self-Government in Canada: Report of the Special Committee. This report was given to me by Ms. Roberta Jamieson, who is Chief of the Six Nations. She is also a well-known legal expert.

And looking through that study, it is surprising to see the kind of wisdom that comes through in the analysis it presents, and how, as early as 1983, the First Nations knew where they wanted to go in exercising their right of self determination.

Just before the first chapter, in this extremely well-documented and interesting study which resulted in even more far reaching initiatives, such as Erasmus-Dussault, the words of Leo Tolstoy are quoted, with respect to aid that the government supposedly wants to provide the Aboriginal nations in order to rebuild. It quotes the 1886 words of the author as follows:

I climb onto the back of a man that I crush under my weight; I ask him to carry me, and without letting go, I tell him that I feel very sorry for him, but that my only wish is to improve his situation in every way possible. And yet, I do not climb down off his back.

That is exactly what is happening today with Bill C-7. We say we want to support the First Nations, but at the same time, we are hindering them. We say we want to support them, but at the same time, we place an incredible weight on their shoulders, that prevents them from moving forward. In a sense, given what we have seen of it right from the outset, this Bill is a little like a weight of tens of kilos that we are placing on the back of the First Nations to prevent them from moving forward. The First Nations can take one step, but then they have to slow their march towards self-determination and the exercise of their inherent right of self-government because some people are putting a wrench in the works, when things couldn't be clearer. Self-government is not something to be violated; self-government is something that we must give expression to. But Bill C-7 is certainly not the vehicle through which self-government will be given expression.

Indeed, on the weekend, I was very pleased to see that the lead candidate for the leadership of the Liberal Party of Canada and possibly--with 95% certainty--the next Prime Minister, said he would not sign, that he would ensure that this Bill is not passed. I am happy to hear that. It remains to be seen whether that will actually happen, but this does tell us one thing--that we are still dealing with a Bill that is perfectly worthless in terms of allowing the relationship between the federal government and the First Nations to progress, a Bill that even the next Prime Minister says is absolutely worthless and insignificant. And yet, we are still here asking questions about the management of gravel and peat. That is just ridiculous. No one wants this Bill; none of the people directly affected by this--in other words, the members of First Nations--want this Bill.

The future Prime Minister said on the weekend that he won't sign it and that he won't implement the terms of this Bill. And yet you are going merrily along here as though nothing had happened, as though the next Prime Minister had not stated in no uncertain terms that he doesn't want this Bill, that he doesn't want it to be implemented, and that he will do everything he can to ensure it is not implemented. That means we're going to continue as though nothing had happened, wasting the time of First Nations' members, officials and Members of Parliament seated around this table, and at the first possible opportunity, the future Prime Minister will take this Bill and throw it in the garbage. We will really look like a bunch of idiots for having continued to work on this Bill right until the very end: second reading, third reading… Yes, continue the legislative process right to the very end to get this Bill passed, and yet the new Prime Minister is going to come along and throw it in the garbage. Then we'll really look insignificant, and I mean, really. Unless people think that Mr. Manley or Ms. Copps is going to beat Mr. Martin.

Now I don't know whether they have given a position on Bill C-7, but if all three have stated their position… Imagine! All three are against this Bill. I just don't understand. Taxpayers should know that we are here working on a Bill that nobody wants. Millions of dollars are being spent analyzing every single aspect of this Bill that nobody wants, neither the First Nations, nor us, nor the future Prime Minister.

Á (1120)

[English]

The Chair: Thank you, Mr. Loubier.

Mr. Hubbard.

Mr. Charles Hubbard: Thanks, Mr. Chair.

I think the honourable member speaks for only himself when he describes how he looks.

We might ask a couple of questions on this to further clarify it. In terms of the resources that are listed here--sand, gravel, and so forth--if a first nation has those commodities and wants to dispose of them, who can make a law to dispose of those commodities?

Mr. Warren Johnson: Currently under the Indian Act?

Mr. Charles Hubbard: Under this new governance bill.

Mr. Warren Johnson: This is a law-making authority of chief and council.

Mr. Charles Hubbard: Secondly, the other issue that was brought up was in terms of oil, gas, diamonds, gold, and all these other items that have great wealth, in terms of people's perception, at least. If a first nation has those resources and wants to dispose of them for monetary return, what method would be used to get the value for the first nations peoples?

Mr. Warren Johnson: The method would be a surrender or designation under the Indian Act involving the whole of the band--ratified by the whole of the band, as my colleague pointed out--based on advice and informed consent for which, this being an area of judiciary responsibility, the Crown would bear some responsibility. The resulting licensing, permitting, and that sort of thing would be the Crown's undertaking, not the chief and council, as in the other areas.

Mr. Charles Hubbard: So in other words, the chiefs and councils alone could dispose of sand or gravel, or sell mushrooms, and make that available to its members, but if it becomes a commodity that is worth a lot of money, that has a lot of value, all the members in the band have to request with the chief and council that an arrangement be made with the Crown to dispose of those assets. Is that correct?

Mr. Warren Johnson: That is correct.

Mr. Charles Hubbard: So, Mr. Chair, it's very obvious this amendment is good and the clause is good. I would suggest we take the vote.

The Chair: We're going directly to a recorded vote on amendment G-8, page 139.

(Amendment agreed to: yeas 6; nays 3)

The Chair: We have amendment BQ-33, page 141.

Monsieur Loubier.

Á (1125)

[Translation]

Mr. Yvan Loubier: The object of this amendment is to continue the work that we have already begun, which is to try to raise the awareness of people who are completely insensitive to the real needs of the First Nations, and particularly to express the fact that the sovereignty of peoples is not something artificial. The sovereignty of peoples is something that is exercised. When you are considered to be a nation, a people, not only by your own members, but also by the Constitution, the supreme law of the country, by the Supreme Court of Canada, the top court in the land, and by the United Nations, the ultimate agency representing the countries and sovereign peoples of this world, and when we say that the First Nations are real nations, in the sense understood by the UN, then they must be able to exercise their own powers without being under the guardianship of the state, without being forced into vassalage, without being subject to any other power than what the First Nations call the power of the Creator, and when we see in the Bill, in sub-paragraph 17(1)(h) that it talks about authority for a Minister of Canada, who has nothing whatsoever to do with the Aboriginal nations, to make payments out of capital or revenue monies or other monies, then one has to admit that this is a terrible affront to all that the First Nations represent.

If we were to do that to other peoples across the world, if we subjected them to a decision by a Canadian minister in a given area, whether it be the United States, England, France or Italy, we would be chased out and told to mind our own business.

So, why is it that we are providing for another treatment for First Nations in a Bill about them? Why does a minister with no connection with the Aboriginal nations have to give his authorization, when at the same time we're recognizing the inherent right of self-government of the First Nations? If that isn't continuing to impose a system of vassalage on the First Nations, then I don't know what it is.

What I see throughout this Bill, and what First Nations' members see as well, is that it runs completely counter to what we might have expected to see after 20 or 25 years of work, including the report of the Special Committee, the first report issued in 1983 dealing with Indian self-government in Canada, and which was very clear in describing the new relationship that should exist between the federal government and the First Nations. There was also the Erasmus-Dussault Commission report, where it was made very clear that in order to properly re-open discussions with the First Nations, we had to do away with that feudal reflex, one worthy of apartheid, of thinking that we hold the truth, that we are the only ones to be able to decide for the First Nations, without being able to recognize that the First Nations are intelligent, that they have leaders, educated people, people who are good managers, and especially that they want to take their future into their own hands.

The authorization of a Canadian minister, whoever that minister may be, is totally inappropriate when we're talking about self-government for the First Nations. We should eliminate any reference to the type of authority that a minister could have over the affairs of a band council and over Aboriginal nations in general. That is totally inappropriate, in light of what has occurred over the last few decades. That is totally inappropriate, when you consider that even conservative courts, like the Supreme Court of Canada, have said that the inherent right is something sacred and that the only thing the government should be doing now is supporting the First Nations who want to shape their own future and giving concrete expression to the inherent right of self-government.

Á (1130)

Court rulings, including those of the Supreme Court, are not saying that we should continue to do what we have been doing for the last 130 years, which is that a federal government minister will decide in the place of the First Nations what is good or bad for them. We have to completely redefine our way of operating.

I don't know how it's possible that in 2003, we are still seeing the same kinds of provisions, where the First Nations require authorization to receive funds and to manage their own affairs, when it seemed perfectly clear, based on the reports of the Special Joint Committee and the Erasmus-Dussault Commission, that we had gone way beyond that.

I think it would be a good idea to get back into the international arena and denounce the Canadian government, because despite all the criticisms of the past, the federal government is still paying no attention. Do we have to go back to the UN? Do we have to go back in front of the Council of Europe in Strasburg, to assert the rights of the First Nations and make it clear to the federal government that the attention of the entire world is focused on it, because of the casual and cynical way in which it is treating the First Nations? Will we once again have to try to move heaven and earth in the international arena so that from Brussels, Strasburg or New York, people again point to the Canadian government saying that that government doesn't respect the fundamental rights of the First Nations? Is that the way the federal government operates? Does it need to be put into trusteeship by the international community, for it to behave appropriately?

I think it is worth coming back to the fact that the next Prime Minister, who will probably be taking up his new duties between now and late fall, does not want this Bill; he said so in no uncertain terms on the weekend. He does not want this Bill. So, we are just wasting our time. You are making us waste our time, waste the time of the First Nations, and waste everybody's time; you are forcing us to waste energy, financial and human resources for absolutely nothing. You can be sure that from now on, any public statements we make will include that consideration, about the Kafkaesque and unnatural situation in which we find ourselves in continuing to examine this Bill, even though we are nowhere near having reviewed most of the amendments, and the fact that when we arrive at the end of this process, the future Prime Minister is simply going to take this Bill and throw it in the garbage.

So what is the logic in our continuing? The First Nations don't want this Bill, nor does the future Prime Minister. The only one who does is the current Prime Minister, whose days are numbered because he is leaving in a few months. The current Prime Minister has completely lost touch with reality; he is still relying on his outdated vision from 1969. But that is not a question of age, because there are young people around this table who think exactly the same way he does. It is time for the current Prime Minister to leave. I think that would be a good idea. But the fact that the new Prime Minister--because there is no doubt Mr. Martin will be the next Prime Minister--is saying that this is not the way he wants to carry on relations with the First Nations--because he wants to really consult them, means that they have not been consulted.

Not so long ago, Paul Martin was a member of Cabinet. Then he was really in the know. If the Minister of Indian and Northern Affairs told him he had held consultations, I guess that didn't convince him, because the future Prime Minister is saying that when he steps up to the plate, he will truly consult the First Nations. So, that means that even when he was a member of Cabinet, he felt the First Nations had not been consulted, before Robert Nault tabled Bill C-7.

So I don't understand why we are still examining this Bill. This is nothing but a waste of time. When we leave here, I will be the first to denounce the fact that we were forced to waste our time, that this is not a serious effort, that the legislative process is losing its credibility because of the people sitting around this table who refuse to comprehend that it makes no sense to continue to work on a Bill like this, and that we should in fact put an end to the Committee's work right now, because the future Prime Minister doesn't want this Bill.

Á (1135)

The Chair: Thank you, Mr. Loubier.

[English]

Mr. Vellacott.

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

In trying to determine what this clause, which is proposed to be deleted by my colleague Mr. Loubier, precisely means, in paragraph (h) of 17, my question is, first off, this obviously is in respect of bands that have control of their own lists, their own members. Paul, I suppose that's a given here, an assumption.

Mr. Paul Salembier: It's not limited to that. If there have been persons whose names were deleted from band lists for other purposes, even lists with the registrar, they would be covered by this as well.

Mr. Maurice Vellacott: My next question, then, is that this mentions authority to make payments out of capital and revenue money, so this is not money that would thereby be subtracted from money that would otherwise go to that particular first nation. This is not money out of the Department of Indian Affairs budget.

Mr. Paul Salembier: That's right, it's not money, contribution funds, from the government.

Mr. Maurice Vellacott: Right. So in other words, if money went to those individuals who were in some manner in the past, or maybe currently, deleted by a band that has control of their own lists, this is not hurting the total pod of money that would otherwise go first nations in any way. Is that correct?

Mr. Paul Salembier: This deals with revenue and capital moneys of the first nation, and those would be moneys that were, for example, derived from the disposition of resources, so it could be quite a significant amount of money. And it certainly is money that does go to the first nation, but it's money that they have basically generated themselves through the disposition of resources, for example, or interest on leasing of land, interest on moneys that are held in the consolidated revenue account to their credit.

Mr. Maurice Vellacott: So it is the dollars that would be flowing to them. So this would be in the case of, such as in the example you listed there, where land was sold or there was some other disposition or use of a resource? Give me some more examples of--

Mr. Paul Salembier: Yes. For example, certainly royalties from the sale of oil and gas and lease revenues from leasing of land would all be included in capital, and the interest from that is part of revenue.

Mr. Maurice Vellacott: So that is to say that this individual or individuals would get their proportionate share of that either lease money or royalty moneys; they would get a proportionate share based on--

Mr. Paul Salembier: Yes. What this does is the Indian Act in subsection 64(2) provides for expenditure of capital money, and in 66(2.1) for the expenditure of revenue money. And it says the minister, if authorized by the band council, can distribute a pro rata share of capital or revenue moneys to members who may no longer be on the band list. The effect of this amendment would be to remove the power of council to authorize the minister to make such payments.

Mr. Maurice Vellacott: So if it's not a band that has control of their own lists and having removed an individual or individuals, what would be some of the other situations where they're not on a list controlled by the department? Give me some background as to why they would have been left off and now why they're making an application to get on the list.

Mr. Paul Salembier: In terms of being an individual who might be removed from a list controlled by the department, it would simply be if it was later discovered that the individual was not entitled to be on the band list because perhaps the fact that they did not in fact meet the requirements of the act comes to light.

Mr. Maurice Vellacott: But now we're talking about a reversal of that decision to say that they are in fact--

Mr. Paul Salembier: No. This amendment is just dealing with the power of the band council to authorize the minister to include such individuals who for one reason or another are no longer on the band list. It takes away the council's power to authorize the minister to include them in distributions of capital or revenue moneys of that band.

Mr. Maurice Vellacott: So somebody has been removed from a list that's kept by the department, but now it's valid for them to be regarded...or maybe they're not even regarded a member on the list that's kept by the department, but they're still going to get some payments?

Mr. Paul Salembier: Maybe I can give an example, and I'll ask Mr. Johnson to correct me if I'm off base here.

If you have an individual, a member of one band, who becomes a member of another band, perhaps because of marriage or otherwise, and moves onto the membership list of the other band, then they would cease to be on the membership list of their original band. But their band might decide, for example, that they still want them to be able to participate in distributions of capital money or revenue money. Therefore they would request that the minister, in making distributions, include that individual's pro rata share in the distribution. This amendment would remove the power of the council to request such things.

Á (1140)

Mr. Maurice Vellacott: Can he do it directly?

Mr. Paul Salembier: Pardon me?

Mr. Maurice Vellacott: He could do it directly then?

Mr. Paul Salembier: No. It's hard to say exactly what the effect would be, but it might be to preclude those individuals from sharing in the capital moneys of their former band.

Mr. Maurice Vellacott: So it sounds like he has authority to make payments. I think you're reading it in a different way from how I was. I thought this meant something else here. It says “the council of a band may make laws for band purposes in relation to”, and then “authority for the Minister to make payments out of capital or revenue moneys to persons whose names have been deleted from the band list”.

I see. You're saying it's putting the authority to the band now.

Mr. Paul Salembier: This is a carry-over of a power that's in the existing section 81 of the Indian Act, which is stated in somewhat clearer terms there. The power is to authorize the minister to do this. And by taking this out, they would no longer apparently be able to authorize the minister to do this. So since they can't authorize the minister to do it and the minister can only make distributions to members of the band, the minister could no longer make those distributions.

These are distributions that are normally made with the consent of band or band council. So these are all consensual transactions, but it would remove the flexibility or the power of the band council to permit a sharing in the band resources by persons who were formerly on the band list but are no longer.

Mr. Maurice Vellacott: But they may make laws. They may not, too.

Mr. Paul Salembier: That's true. They don't have to require that such individuals share in the distributions, but under this provision they can if they so desire.

Mr. Maurice Vellacott: Right.

Thank you.

The Chair: Mr. Martin.

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

I support Mr. Loubier's amendment, BQ-33, which seeks to delete paragraph (h), 17(1)(h). And in doing so I believe he's being faithful to recommendations made to this committee by the Opaskwayak Cree Nation of northern Manitoba, the 17 communities that form the Opaskwayak Cree Nation.

I can't lay my hands on it, but I remember quite clearly the presentation made at that time, and it specifically asked for the deletion of this clause simply because of its reference to the minister. The presenter, who has explained that subsequently to us, explained that if the clause read “the council of a band may make laws for band purposes in relation to persons whose names have been deleted from the band list”, that would not be objectionable. But to include the minister in that process flies in the face of the stated intention, which is to reduce and diminish the role of the minister as it affects the ability of first nations to make laws and to make legislation.

Again, I believe Mr. Loubier's recommendation to delete paragraph (h) altogether doesn't preclude the band and council from making a determination to make payments out of capital or revenue moneys to persons whose names have been deleted from the band list.

What it does, though, by specifically making reference to the minister, is it prescribes the methodology by which such payments are made, and that includes the minister again. Frankly, even with the change Mr. Loubier contemplates, the minister already has the absolute right to supervise and have jurisdiction over virtually every aspect of lives of aboriginal people.

We should be aware in everything we do in this legislation that issues of membership and citizenship are key and paramount to issues of self-government and self-determination, because certain rights and benefits flow from membership and citizenship. It's integral to self-governance to be able to decide and to agree upon who is a part of that group.

In dealing with this particular clause we have to--or we should, if we were being thorough--refer to the joint initiative for policy development developed by the Assembly of First Nation and INAC's lands and trust services. I'm sure Mr. Johnson is very aware of it; he probably had an active role in developing this particular document.

It reminds us, I suppose, Mr. Chair, first and foremost that first nations have always had their own concepts of nationhood and that these concepts have survived the colonization process. The first nations concept of membership and citizenship are tied to the land, to the traditional territories that extend beyond the reserve system of the Indian Act.

I remind you that this is a joint document. This is not just the Assembly of First Nations' own views; it's developed collaboratively with INAC.

It goes on to say that the concepts of Indian status and band membership were alien notions to first nations. These artificial concepts have interfered with the basic political and cultural rights of first nations as nations and as people, and with their rights to organize themselves politically.

Their right to organize themselves politically is one of those fundamental rights that we are seeking to have recognized by this legislation, and including the minister in details pertaining to membership and citizenship is contradictory to the whole concept of the right to self-determination as it pertains to citizenship.

We should be aware too of complications associated with membership and citizenship stemming from Supreme Court rulings.

Á (1145)

I remind committee members of section 31 and the impact that it's had on first nations. As was presented to us at the committee over and over and over again, the willingness is there, but the resources are not there to provide adequate resources. A great many of the transparency, financial administration, and accountability issues that are being cited by the government side stem from the inability to provide basic services to people as their band list grows--with or without their participation--and the resources do not grow in a corresponding way. And we're negligent not to include some of these issues in dealing with this particular bill, Bill C-7.

As of September 1998 a total of 609 bands were listed in the Indian registrar. Of those, 250 first nations controlled their own membership lists, of which 16--3%--were outside the Indian Act and came under negotiated self-government legislation: the Cree-Naskapi, as we know, the Sechelt, the Yukon, and now the Nisga'a, of course. Some 234 first nations come under section 10 of the Indian Act. In 1998 the department administered membership entitlement for 359 bands, under section 11 of the act, where a separate membership code has not been developed.

I point that out, Mr. Chair, to cite just how much first nations are seized of this issue of citizenship and membership and are wrestling with it. It's why this particular paragraph 17(1)(h) jumped off the page for the Opaskwayak Cree Nation, at least. Their former chief is currently our Minister of Conservation, actually, in the NDP government in Manitoba, Oscar Lathlin. And the Opaskwayak First Nation speaks for a broad constituency; it's not just the town of The Pas, it's the 17 satellite communities that are clustered together to call themselves the Opaskwayak Cree Nation, OCN.

We should be fully aware of the membership rules section 6 describes for who is entitled to registration under the Indian Act, if we're going to deal with this issue in the fullness it deserves to be dealt with. After subsection 6(1) and subsection 6(2), which most people here, I'm sure, are abundantly aware of, we also have section 7, which describes persons who are not entitled to registration and who would apply directly to this paragraph 17(1)(h), which is the reason I raise this.

These persons would include a non-Indian woman who gains status on marriage to an Indian man under section 11 of the 1951 act, or a similar provision of any earlier acts, and later lost her status by marriage to a non-Indian. This is a complex concept we're dealing with. Another one is a child whose mother gained status through marriage but whose father is not an Indian. I hope we can get our minds around that before we vote on any aspect of this bill as it pertains to membership and citizenship. Have we given this the fullness of time that it deserves?

Under subsection 7(2) it says that subsection 7(1) does not apply to a woman who is entitled to registration prior to her marriage or is entitled in her own right under any of the provisions of section 6; and subsection 7(3) says subsection 7(1) does not apply to a child whose mother had an entitlement in her own right before she gained status on marriage. Does everybody here understand all that? I hope so, because we're about to pass laws pertaining to membership and citizenship, and it would be the ultimate colonial arrogance if we sat here and rubber-stamped these changes without a full grasp of the complexities.

Before 1985 the Indian Act also stated that persons who took scrip, and their descendants, were not entitled to Indian status under the act. So if they accepted the land or the money and took the mule and the shovel, or whatever it was, to accept scrip they lost all that now. Such an applicant now must clearly establish the identity of the ancestor as a member of the particular Indian band and prove this. The onus is on them to prove that through departmental records.

It may be that some people accept their story at the band and council level, but the minister and INAC would not accept their story. So the minister shouldn't be involved in who the band and council can make payments to, because they might fully accept that some poor guy who sold out his status for scrip in 1920, and his children have now proven that they are entitled to resources.... That should be up to the band and council to decide, not the minister.

I'd like to move a subamendment, Mr. Chair, that persons whose names have been deleted from the band lists should be covered in paragraph 17(1)(h).

Á (1150)

The Chair: A subamendment?

Mr. Pat Martin: That is the subamendment that I seek to make to Mr. Loubier's amendment. I have just given it to the clerk.

The Chair: The subamendment does not make reference to the amendment; therefore, it's not acceptable.

Do you have a point of order?

Mr. Pat Martin: Mr. Chair, as a point of order, we sought clarification from the chair if a subamendment was in order pertaining to that clause. Because Mr. Loubier's amendment sought to delete lines, we asked the clerk if it was appropriate or allowable to put in a subamendment that actually puts lines back in. The answer was yes. So I'm wondering what's changed.

Á (1155)

The Chair: The advice from the legislative clerk is that the lines you are adding do not make reference to the amendment.

Mr. Pat Martin: The lines that I am adding are exactly the lines that were deleted.

Mr. Charles Hubbard: [Inaudible—Editor]

Mr. Pat Martin: Yes, you can, in fact. The clerk says you can. They're the same, word for word. They're to replace the last two lines...to amend the deletion.

The Chair: My point remains that it does not relate to the amendment.

Mr. Pat Martin: How can it not relate to the amendment, when the words are the very same?

I'm not trying to be difficult, but I honestly can't fathom how that could be. Mr. Loubier asked to delete four lines, and I'm suggesting that only two of those lines should be deleted, and two of them should remain.

The Chair: The clerk was asked by someone if they could move a subamendment. Yes, anybody can move a subamendment on any amendment. But she wasn't made aware of the text that you intended to move, so I don't think that she advised you that your text would have been acceptable.

The subamendment is not accepted by the chair, and we are going now to Mr. Hubbard on the amendment.

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

It's rather amazing how some people want to so confuse a very straightforward proposition. It's stated in clause 17, which begins in subclause 17(1) as “The council of the band may make laws for band purposes in relation to”, and continues in paragraph 17(1)(h) to include “authority for the Minister to make payments out of capital or revenue moneys to persons whose names have been deleted from the band list”. In other words, this bill is saying that the chief and council may make laws to do something.

Now, why would we hear so much discourse that doesn't even pertain to what is being said here? It's not a matter of some government agency telling a chief and council what to do. It's saying that the council of a band may make laws. It's enabling type of legislation.

With that, Mr. Chair, most first nations people are generous to the people who have been and are on their band list. If a land settlement is made, or if there are other capital moneys that come to that band, as part of their generosity they would certainly include people who were raised in that band, who had moved away and joined another band. This is quite the way that most first nations operate.

I fail to understand why we would want to convolute it, by taking all of these things out, and changing this, and making all of these discourses. We're saying they may make laws to ask the minister to do something. What more could a bill ask for than to offer this opportunity, so that people can see that money is distributed the way the band or the chief and council want it to be distributed?

I can go further, but we're listening to a lot of talk, and I don't know what the meaning of it is. We certainly want to move ahead with this legislation. We want to get these amendments addressed as soon as possible.

Thank you, Mr. Chair.

The Chair: Thank you, Mr. Hubbard.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Yes. My Liberal colleague who preceded me forgets that there is also a provision in sub-clause 17(2) that says that if what they do doesn't suit the federal government, or if their laws are in conflict with an Act of Parliament or other law, the First Nations' ability to legislate will be constricted. That is another thing that bears repeating. We shouldn't just be telling part of the truth, but the whole truth.

Indeed, as regards the management of band lists, it seems to me that it was pretty clear, when we read the briefs and heard witnesses' representations, that what the First Nations want is full management rights and full autonomy as regards the list of band members.

In fact, if we look at the brief presented by the Opaskwayak Cree Nation which appeared in Thompson, the spokesperson for that nation said simply, and it couldn't be clearer:

Â (1200)

[English]

“We request that express authority over the band list be explicitly transferred to First Nations”.

[Translation]

Most First Nations' members who expressed an opinion on band lists said exactly the same thing. They did not ask that the minister continue to be involved and that he be able to make decisions regarding band lists.

In fact, we need to read today's Globe and Mail to really understand what's going on. It seems to me you don't have to be a genius to realize that there is a sort of exogenous shock coming from the pretenders to the Crown--in other words, those aspiring to win the Prime Minister's job. This morning, I read an article where it said:

[English]

“Martin playing politics with native bill, Nault says”.

[Translation]

I find that absolutely incredible. Robert Nault, the Minister of Indian Affairs, is accusing the person who will probably become Prime Minister--not probably, but has a 99.9--a recurring decimal, as they say in statistics--per cent chance of doing so, of playing petty politics with his statements about Bill C-7. But who has actually been playing petty politics with this from the very beginning? Look at all the statements Robert Nault has made. First of all, he says he carried out extensive consultations with the First Nations before drafting a Bill that nobody wants. If he had done that much consulting, all the representatives of the First Nations would not be against this Bill. That's the first thing.

He also says that this Bill will favour self-government. That is also petty politics, because even in the preamble, which does not have the force of law, it says that this Bill will not have the effect of expediting self-government for the First Nations. And yet, he is still asserting, as stated in this morning's article, that this will result in a greater propensity to resolve self-government issues.

And in this morning's article, he is still sullying the reputation of the Aboriginal peoples. The article states:

[English]

Mr. Nault said some leaders, including Grand Chief Matthew Coon Come, object to the very notion that Ottawa should force the reserves to clean up their governance by making their operations more transparent and their councils more accountable.

[Translation]

It's as though they were saying there was practically no transparency, no accountability, that there are egregious problems in terms of the way the First Nations are managing funds, and that Grand Chief Matthew Coon Come basically doesn't know what is going on. I find it quite incredible that he continues to insult people in that way, particularly when he has his back to the wall. Some people, including Mr. Martin and Mr. Manley, are saying that he is on the wrong track with this Bill. He continues to sully the reputation of the First Nations and to say that his colleagues, including a contender for the post of Prime minister, are engaging in petty politics.

Again, you really should read this morning's Globe and Mail, to see the kind of contempt that drives the Minister of Indian Affairs. He says that if we don't agree with his Bill, it's simply because we wouldn't agree with any Bill, or maybe we just don't get it, or maybe there are just people here who would continue to oppose any bill, whatever bill it might be. He said that quite clearly, and I want to quote his very words in English:

[English]

“For some people, no matter what we would have proposed, it would not have been acceptable.”

[Translation]

It's as though he is saying we would be incapable of determining the merit of the Bill, assuming, of course, that we were presented with an intelligent Bill, and that the First Nations were presented with an intelligent Bill, because he is the only one who is right.

Two reports have been issued in the last 25 years that had practically the unanimous support of the First Nations, including this one--the report of the Special Committee of which Ms. Jamieson was a co-author. In addition to that, there is the Report of the Royal Commission on Aboriginal Peoples. Given that everyone agreed on these two reports, why didn't we move in that direction; yet some people have the nerve to say, in an utterly contemptful way… Minister Robert Nault says that in any case, whatever they're presented with, some people will continue to be opposed and that some people will never agree with anything that is brought forward. I think that shows utter contempt for everyone, and for all the people taking part in this debate on a Bill that makes no sense whatsoever.

In fact, the Confederation of Nations will be holding an assembly starting tomorrow, in Vancouver, which will last until Thursday, at which will be represented all the Aboriginal leaders in Canada. Until Thursday, those Aboriginal leaders will be examining Bill C-7, which is a ridiculous piece of legislation. They will try to see how they can fight this to the end, particularly now, with the support of the main candidate for the job of Prime Minister, this Bill that nobody wants and that continues to treat the First Nations as though nothing had changed in the last 30 years.

As far as we're concerned, if we had any respect whatsoever for the First Nations, we would suspend our work now until the end of the assembly--first of all, to be able to follow their discussions and determine what First Nations' leaders--there are more than 600 in Canada--really think, not only about Bill C-7, but everything that has occurred in recent days, and particularly over the weekend, when even the leadership candidates said they were against this Bill.

Out of respect for the First Nations, we should suspend our work on Bill C-7 pending the completion of their assembly and their findings, because if anyone is directly affected by this Bill, it is certainly the First nations, who will all be represented in Vancouver during that three-day assembly. They, and they alone, are directly affected by this Bill. We should show some respect and demonstrate our dignity as parliamentarians and await the outcome of those discussions at the Confederation of Nations and their comments on Bill C-7, as presented through their leaders here in Canada, and on our attitude towards the First Nations and the future of this legislation, given that pretty well everyone is now objecting to it, with the exception of Robert Nault.

Look at yourselves sitting around this table, and think of your political career. Given what you are going to be doing, none of you around this table will be Cabinet material. You are going directly against the will of the next Prime Minister of Canada, and yet you think that the next Prime Minister of Canada will look favourably on you. Don't descend into hell with Robert Nault and Jean Chrétien. Oppose this Bill, along with us, and boycott the rest of the Committee's work. That would be the best thing you could do and would possibly be the first act of courage in your whole political career for you to now say: it's clear that everyone disagrees with this Bill.

Â (1205)

[English]

The Chair: Please, Monsieur Loubier, your insults are not acceptable.

[Translation]

Mr. Yvan Loubier: I didn't get that.

[English]

The Chair: You're putting down people, and your insults are not acceptable.

[Translation]

Mr. Yvan Loubier: Please speak to me in French. A Franco-Ontarian of your status… Why don't you speak to me in French once in a while. That would be a good idea, it seems to me, particularly when I am speaking and have not yet received the interpretation.

[English]

The Chair: I don't speak to you in French, which is the first language of both of us, because the next time you interpret what I say, everyone in the room will have heard what I said.

Please carry on.

[Translation]

Mr. Yvan Loubier: So I guess that means that as far as you're concerned, the French language is not an important language here in Parliament, and that Canadian duality, which you have claimed to defend ever since you got into politics, doesn't interest you anymore. I have barely heard you speak French since we began our proceedings, and yet it is your first language. I find that quite strange.

[English]

The Chair: We will go directly to the vote on amendment BQ-33.

(Amendment negatived: yeas 2; nays 8)

The Chair: We will now go to amendment NDP-40, on page 142.

Mr. Martin.

Mr. Pat Martin: Mr. Chairman, this is a further attempt to amend clause 17. Our first attempts to amend this particular clause were to change some of the language that submissions made to the committee told us very clearly gave cause for concern in terms of limiting or narrowing the scope of those items the council of a band may have the authority to make rules and laws about.

We're frustrated that none of our concerns that were brought forward on behalf of first nations have been entertained here and that the committee has been unwilling, yet again, to recognize the legitimate concerns brought forward to this committee by the many presentations.

Having failed, unfortunately, to make substantial changes to paragraphs 17(a), (h), and others in clause 17 that we found fault with, I seek to then add after paragraph 17(k) a new subclause (1.1), which will say:

(1.1) The power of a band council to make laws under subsection (1) does not

(a) abrogate or derogate from any existing aboriginal or treaty rights of the aboriginal peoples of Canada or the protection accorded to such rights under section 35 of the Constitution Act, 1982; and

(b) does not limit any authority which may be vested in the band council by virtue of the inherent right of self-government of an aboriginal people.

Mr. Chair, by adding these clauses, we want to make it abundantly clear that the prescriptive list of those items a council of a band may be permitted by this legislation to make laws in relation to shall not be limited in any way, to make it abundantly clear to people who are trying to interpret this act in the future that nothing in clause 17 limits any authority that is currently vested in the band council by virtue of the inherent right of self-government of an aboriginal people. This addresses directly the issues that were brought to our attention by submissions made by the very people who are affected by this law.

While it's true that we've already accepted and discussed a non-derogation clause, there was particular concern raised by witnesses about the effect of this particular clause 17, and they want these specific assurances about the clause. If you're unwilling to take out the offending language, which you clearly are--in contradiction, again, to what the minister assured us, that if they didn't like what was in the bill, the department would listen to the submissions of the people who made recommendations to change it--then the very least this committee should be willing to do is to restate what it essentially guarantees in the preamble, or what's guaranteed in the non-derogation clause we've now put under clause 3, under the purposes.

We're also concerned that if the people of a first nation, in the exercise of their inherent rights, provide a council with certain powers, it would be held only to powers the council is provided in the act. That's what the fear is, that people trying to interpret this act in future may believe that only those details specifically referred to in the act are the things a band and council have jurisdiction over, which is completely contrary to the existing and inherent jurisdiction first nations have now.

It's curious to me and to the observers who brought forward these recommendations that the powers are for the council only. There is no mention here made of the chief. It seems the term “chief” has been specifically left out of clause 17, as if the chiefs have been “disappeared” somehow. There is reference to band and council, but people noticed there's no reference to chiefs, and they take that as a deliberate way of phrasing this particular clause. It was certainly noticed.

Â (1210)

First nations have treaties in which the Crown specifically asked the people to get together and indicate who their chiefs were. This was the first step of the treaty-making process, the original treaties that were signed. Then the treaties were negotiated and signed by those same chiefs. Well, this act is going to abolish any reference to those very chiefs. We're getting further away from the nation-to-nation treaty process. We're now getting the federal government dictating in very prescriptive and specific terms what areas of jurisdiction the council of a band may make laws on for band purposes, with no reference whatsoever to the chief of the band council, of the community.

There's a further problem, in that the treaty chiefs were given the responsibility--and the uniform to go with it, if we remember our history--of maintaining law and order among the people. But how do we suppose the chiefs are going to be able to do that when they are a disappearing act in Bill C-7--the disrespect of not even being acknowledged.

I suppose it's because it was the legitimately selected and elected chiefs across the country who opposed Bill C-7 that the minister and the drafters of this legislation are specifically excluding them from this process--because they pointed out the flaws and shortcomings.

When we consider the recommendations of the royal commission, we can see that the powers set out in clause 17 are totally inadequate to be in keeping with the Royal Commission on Aboriginal Peoples. The amendment we suggest would cure this inadequacy by opening up the powers of council for everything included in inherent rights.

Section 35 of the Constitution is given meaning and definition as per the promises made in 1992, in anticipation of opening the Constitution--the Charlottetown round, the special round-table of the Charlottetown Accord dealing with aboriginal peoples. I attended as a delegate. I worked through all of these issues in great, agonizing detail. And at that time, the commitment was made that Charlottetown would lead as a stepping stone to giving full meaning and definition to section 35 of the Constitution. Well, people have been waiting a decade now for that to happen.

Under the Royal Commission on Aboriginal Peoples, under volume 2, page 244, on reordering of powers and institutions, it says “...there is a profound need for a process that will afford Aboriginal peoples the opportunity to restructure existing governmental institutions and participate as partners in the Canadian federation on terms they freely accept”--not by imposition, not by some dictatorial process that will impose the terms under which they will participate in the Canadian federation, limiting them to these specific areas.

We know section 35 provides the basis for recognizing first nations governments as one of the fundamental orders of government: first nations, provincial, and federal. This reference has been around long enough that it's resonated with the Canadian people and they are willing to accept a third order of government in deference to and in recognition of first nations as one of the founding peoples of the country. There were the French, the English, and the first nations who formed Canada. That acceptance, when we talk about two founding nations, is a wilful blindness. It's a deliberate, conscious exclusion of one of the founding peoples.

The first nations have also a special relationship with the Canadian Crown, and that's a fiduciary relationship. That means the Crown is also the protector of first nations sovereignty. This goes back to the point I made before we adjourned last week, that we are not upholding the honour of the Crown by acting in a way that is not in keeping with our fiduciary obligation as members of Parliament, and that obligation exists as an extension. Because this committee is an extension of Parliament, we as members of this committee are a further extension. Our actions must be in keeping with that basic responsibility.

There's a dishonesty associated with all of this, Mr. Chairman, and the clause I seek to introduce gives some comfort to those who feel this dishonesty is a deliberate attempt to achieve things other than the stated objectives of this bill.

Â (1215)

By way of illustrating that dishonesty, I want to point out that on the Indian Affairs website regarding this bill, I'm quoted as a supporter of this bill. Is there anybody in this room who thinks for a moment that I support this bill? You'd have to be living in a cave or have been born on a raft or something, because you couldn't possibly in your wildest imagination think I support this bill. Yet I'm quoted by Indian Affairs on its web page--a statement by NDP member Pat Martin:

I am encouraged to hear the minister say today that it is his intention to strip away his own power as the Minister of Indian Affairs as it relates to the day-to-day governance of first nations and to put it back where it belongs--in the hands of first nations.

I did say that. I said that on May 3, 2000--in the year 2000!

The Chair: Thank you, Mr. Martin.

Mr. Pat Martin: I know you're thanking me, but I hope you're not indicating my time is up.

The Chair: Your time is up. That's it. You will get closing remarks.

Monsieur Loubier.

Â (1220)

[Translation]

Mr. Yvan Loubier: That is absolutely unbelievable. We are really dealing with disinformation here. Pat Martin made that statement in the year 2000, when we believed the Minister actually wanted to move in that direction. Since then, we have clearly seen that the Minister does not want to move in that direction, not in the slightest. So, in my view, this is a demagogic, cynical and contemptuous move on the part of the Department to have kept a quotation of my colleague, Mr. Martin, that goes back to the year 2000, and is a complete misrepresentation of his real thoughts on this Bill, simply because we are continuing to wage this battle against Bill C-7. There are always more surprises in store for us in terms of the attitude not only of the Minister, but of the Department, because the Department is doing exactly the same thing and keeping these old quotes.

Initially, we thought that the Minister was sincere and honest. When you think someone is honest, you say nice things about that person. But things start to go wrong when you begin analyzing a Bill like this, and when you realize that's it's all a lot of nonsense, and that between what the Minister says and what he puts on paper, there is quite a considerable gap.

I think Mr. Martin's amendment is an excellent amendment. From the very beginning, the First Nations' biggest concern and the most severe criticism that has been levelled at it is in fact that this Bill, like Bills C-19 and C-6, violates the inherent right of self-government and the rights that flow from the many treaties signed since time immemorial by the first European colonists and the representatives of the First Nations.

It seems to me that if people are not prepared, right from the very beginning, to enshrine in a Bill such as this respect for Aboriginal rights and the inherent right of self-government, it's because they're not sincere when they say that they respect those rights, that Aboriginal rights are given consideration in this Bill and that this Bill will make it possible for those Aboriginal rights to be exercised.

In my view, the best thing that could happen to members of this Committee would be for them to take a look at the report of the Special Joint Committee. For those who don't like to read--and I know that a number of my colleagues do not like to read--there are two short paragraphs on the back of the report that in fact summarize what any relationship between the federal government and the First Nations must be founded on. Given the connection to the amendment on Aboriginal rights moved by my colleague, Mr. Martin, I would like to read those two paragraphs, which are quite something. They read as follows:

When the Haudenosaunees came in contact with the Europeans, they signed peace and friendship treaties with them. Each was symbolized by the Gus-When-Tah or two-row wampum belt. There is a bed of white wampum which is supposed to symbolize the purity of the agreement. Then there are two rows in purple, and those two rows reflect the spirit of your ancestors and mine. There are three beads of wampum that separate the two rows. Those three beads symbolize peace, friendship and respect.

That is very philosophical, but that is precisely what was behind the treaties signed by the first Europeans and the representatives of the First Nations. I want to continue, because I think it's important that people be aware of what they said:

The two rows represent two parallel paths, two boats moving together down the same body of water. One, a birch bark canoe, represents the Indians, their laws, their customs and their traditions, while the other, a ship, designates the White Men, their laws, their customs and their traditions. The two people travel together side by side, each in his own boat, with neither one trying to steer his neighbour's boat.

Do you not think that is exactly what we should be doing, and that this is exactly the direction we should be taking in our relations with the Aboriginal peoples? And if we want to respect those treaties, we need to respect that highly telling symbol of the wampum belt. In my view, it is the Gordian knot in terms of our relations and our respect for Aboriginal treaties signed by our ancestors and those of the First Nations. It couldn't be any clearer. If we do not respect Aboriginal rights, that means that we do not keep our word, that we are not reliable. When you sign a treaty, that treaty is timeless; it continues on for eternity. And if we don't abide by those treaties today, it's because we're not reliable and because we can't be trusted. To me, that's quite clear.

Â (1225)

When treaties like these were made by the first Europeans and the Aboriginal nations, the Aboriginal nations did not want to be subject to the control of the Europeans. They did not want the Europeans and following generations to govern them. They believed that the Aboriginal treaties that were signed, particularly the representation of the birch bark canoe and the boat travelling on the same body of water, would be a timeless indication of what the nature of our relationship should be--a relationship between two independent peoples living by the same river but at the same time able to make their own independent and sovereign decisions about what they want. They are the ones steering the canoe, not us.

When have we ever seen the captain of a boat try, from the boat he is on, to steer another boat travelling along the same body of water? That is a complete incongruous situation. So, I think that you should just read the back of the report entitled Indian Self-Government in Canada: Report of the Special Committee--the Library of Parliament must have a copy--and remember what those two paragraphs say every time you consider the clauses contained in Bill C-7.

I would like to propose a sub-amendment on the part of the Bloc Québecois to Amendment NDP-40, which would read as follows:

That Amendment NDP-40 be amended by adding the following:

So, I am tabling that sub-amendment and I believe it is in order, as it complements Mr. Martin's amendment and is completely consistent with it, given that I am adding the notion of respect for Aboriginal leaders.

[English]

The Chair: I will ask the clerk to read the subamendment.

[Translation]

That Amendment NDP-40 be amended by adding the following:

The Chairman: Mr. Loubier.

Mr. Yvan Loubier: By way of explanation of my sub-amendment, Mr. Chairman, I simply want to point out that where the signature of treaties is involved, there are also players. We are talking here about ancestral rights, and earlier we referred to the wampum belt. First Nations' members give powers to leaders, and I believe that based on the statement made by the Minister today, where he shows a lack of respect for Aboriginal leaders, it is time that we enshrined in this bill, not only respect for the inherent right of self-government and Section 35 of the Constitution Act, 1982, but that we also recognized the treaties and the authority of Aboriginal leaders, which is often treated with scorn in the misplaced and unfounded statements of the Minister of Indian and Northern Affairs and many politicians in this Parliament.

So, this amendment is intended to ensure that the leaders are treated with respect, and also that we act on a request made by the Royal Commission of Inquiry on Aboriginal Peoples, which was that in order to place our relationship with the Aboriginal peoples on a new footing, first and foremost, we should respect the people they have chosen to represent them.

Earlier, I was reminding you that the Confederation of Nations will be holding its assembly starting tomorrow in Vancouver, and that on the agenda of that meeting are Bill C-7 and the federal government's general attitude towards, and treatment of, the Aboriginal nations, including through Bills C-19 and C-6. I was saying that out of respect for First Nations' leaders, it would have been very much appreciated if you could have accepted my suggestion to suspend this Committee's clause-by-clause consideration of Bill C-7. Indeed, we need to have some indication of the direction taken in recent weeks by the First Nations, in order to continue to analyze this Bill. The entire political environment has been turned upside down in recent weeks, particularly over the weekend. It is not a minor thing to be in a situation where the person aspiring to be Prime Minister of Canada says that he does not consider Bill C-7 to be a good basis for developing future relations with the Aboriginal people.

I haven't often agreed with Mr. Martin in the past; for years I was his critic, that being my job. However, for the first four years, I was the Official Opposition Finance Critic, and then two or two and a half years later, I was critic for the second opposition party facing Mr. Martin. However, if you check the record, you will see that when Mr. Martin did make a good decision, I was the first to commend him. You may say that didn't happen very often. And you're right; Mr. Martin didn't often make good decisions. That's not my fault; he was the one make the decisions.

But I told you in advance, last Thursday, that if Mr. Martin said on the weekend that he would not support this Bill and would not enforce the various provisions of Bill C-7 if he became leader of the government, my party and myself would support him in that decision. Indeed, this past weekend, Mr. Martin couldn't have made his position clearer. He said that he wanted to respect the First Nations. Of course, between what an aspirant Prime Minister says and actually accomplishes subsequently, there may be somewhat of a gap, but in terms of his position on Bill C-7, that position couldn't be clearer. Mr. Martin said, and I quote:

[English]

“I will not implement this bill as it is”.

[Translation]

In other words, he will not implement this Bill, even if it is passed before he comes to power; he will not implement the premises and clauses of this Bill. That much is very clear.

And the reporter for Reuters goes even further. I didn't hear the debate per se, but this is what he says:

Â (1235)

[English]

But Mr. Martin did say he strongly opposed--not strongly supported--a government bill on how the native Indians should run their affairs. He said if he became prime minister, he would refuse to implement it--not support, not agree with, but oppose and refuse to implement it.

[Translation]

So, that couldn't be clearer. So why is it my colleagues opposite don't understand what's going on? The political landscape has completely changed. Do you really think the leaders assembling in Vancouver starting tomorrow will just ignore the fact that Mr. Martin has taken a position on this? They won't. They will reassess the situation. They're perfectly capable of critically reassessing their position in the current socio-political environment. The very least one can say is that in the last few days at least, the political landscape has completely changed with respect to Bill C-7.

No longer can it be said that everything is just hunky-dory and it's business as usual . Nor can we continue clause-by-clause consideration of this Bill, just completely ignoring the statements made by the future Prime Minister of Canada, and saying that Robert Nault is right to accuse Mr. Martin of engaging in petty politics. I think we need to be a lot more cognizant of the current socio-political environment. And the same applies to the leadership of First Nations' chiefs.

When chiefs speak on behalf of their members, normally they do so with full knowledge of the facts; no one is in a better position than chiefs are to speak for their people. What kind of magic was at work to have made the Minister, Robert Nault, more entitled to speak for First Nations' members than the duly appointed or elected members of those First Nations? That is totally absurd. However, this is not the first absurdity we have encountered--far from it--with this Bill.

My sub-amendment is specifically intended to complement the amendment presented by my friend and colleague, Pat Martin. Without distorting that amendment, it adds to it a kind of philosophical and practical foundation for defining relations between the federal government, First Nations and the duly chosen representatives of the First Nations, namely the Aboriginal leaders.

In our communities, when we choose our leaders, whether they are members of Parliament, of a legislative assembly, municipal or RCM representatives, do we cast doubt on their legitimacy, after the vote? No, because we believe in democracy, supposedly, and when the people choose their representatives, whether that occurs in a federal or provincial election, their choice is respected.

So, why should it be otherwise for the First Nations? Why shouldn't Aboriginal leaders be respected in just the same way as people chosen in our communities to represent different levels of government or the members of those communities? To me, that is totally ridiculous.

[English]

The Chair: Merci, Monsieur Loubier.

Mr. Martin.

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

Thank you, Mr. Loubier, for your very constructive addition to the amendment I put forward, NDP-40. I think it's a thoughtful and timely amendment that accurately reflects some of the concerns brought to us by presenters who were witnesses to the committee: to make reference to the authority of the legitimately elected and selected leadership of first nations being acknowledged and recognized and to see that authority cited specifically at least somewhere in this document.

It strikes me, and it has struck others, as a deliberate omission—a conscious, deliberate omission and an insult, in a sense, Mr. Chairman—just because the overwhelming majority of chiefs across the country and their central agencies and their plenary bodies and their tribal councils all rejected Bill C-7 on the face of it. I suppose it's understandable why the government would be sensitive to that blanket rejection on the part of first nations and fail to pay any respectful reference to chiefs in this bill.

Adding paragraph (c) to my amendment, NDP-40, I think helps to flesh out the theme of the points we are making. If the government doesn't listen to this amendment, it really is at risk of offending the relationship even further. The decade of court cases Mr. Paul Martin made reference to on the weekend will come to fruition if substantial amendments are not made.

I notice Mr. Martin is qualified in his criticism, but I'm disappointed that he was careful to point out, as he said, that the government should not proceed to vote “as it is now” on Bill C-7. He also says he will not support the bill in its current form, essentially. Well, that's leaving the door open to substantial amendments, the types of amendments we were committed to. But I'm afraid the government is digging itself deeper and deeper into this mess, into the quagmire Mr. Martin refers to in his quotes.

In fact, they're resorting to desperate acts. This misrepresentation of my position is the desperate act of a desperate people to deliberately falsify my position on this bill. This is a theme on the Indian and Northern Affairs website, where they tried to find a number of quotes they could use to show favour to this bill. They have 122 quotes; 26 of them are made by the minister himself. Fully 21% of the quotes are the minister's own quotes; nine of them were by the minister's regional director for Saskatchewan, Roy Bird: 37% of all the quotes cited were actually from either the minister or his employees.

Then, when you get down to the other quotes, I am in the other category—Pat Martin here, listed as an NDP member—claiming that I support the bill. What was not quoted by Indian Affairs—and if there were any honesty to their presentation of who's in favour and who's against, it would have quoted part of this, for instance.... The quote from me was from May 3, 2000, the day the minister stood up in the House of Commons, three years ago to the day almost, when nobody had seen the bill, the consultation process had not even begun, the committee was not meeting, and all we were going on was the minister's flowery and romantic language about elevating the standards of aboriginal people.

Well, I support that: I don't mind supporting elevating the standards of aboriginal people. But to be honest—if they were being honest—they would also quote any of the speeches I made before this House. I won't even read them here to you now, although I brought some choice examples.

Â (1240)

Another dishonesty is that Stephen Cornell, the professor of sociology from the University of Arizona who was the co-author of the famous Harvard study, is listed in the pro column, the column of those supporting this legislation. Well, we've had him present before this committee telling us the First Nations Governance Act is loaded with problems.

Professor Cornell criticized the imposed governance templates. He said:

We believe the danger of this approach is that it will lead...to governing institutions that are thoughtfully designed by the federal government, but incapable of effective first nations governance.

The second concern he raised was the one-size-fits-all approach, “...appearing to assume that there is a best way to govern, and requiring first nations to adopt or approximate that model”.

A third concern he raised is the demanding timetable, the unrealistic timetable of two years.

A fourth and final point asks what the proposed legislation is intended to do:

The Government of the United States has spent the better part of a century, since approximately the mid-1920s, trying to find solutions to poverty in American Indian communities. In all of that time, only one approach has established any sustained record of success. That approach has been placing broad governmental jurisdiction in the hands of indigenous nations and assisting those nations in backing up that jurisdiction with capable, culturally appropriate governing institutions that those nations assist in designing and that they support and believe in.

That was a complete misrepresentation.

They misrepresented Anna Hunter, the professor at the University of Saskatchewan who went as far as to ask that her quotes are taken off the website. They selectively chose some favourable comments from a call-in show, but when Professor Hunter's attention was called to the use of her statements to promote this governance initiative, she replied:

I am surprised at the duplicity of the government's promotion of this act. They have taken my words totally out of context.

Yes, I do feel there are necessary changes that need to take place and there are IA governments that have accountability issues that need to be addressed. But I strongly feel that the manner in which the government has undertaken these changes is morally and legally wrong.

In complete contrast to the quotes they chose to put on their website, the true quote of Professor Anna Hunter from the University of Saskatchewan is that she believes Bill C-7 is morally and legally wrong.

When Professor Hunter appeared before this standing committee, she said:

A key ingredient for any successful self-government project is a cultural fit or match. It is not good enough to parachute the principles and practices of municipal governance and administration into first nations communities and expect them to work with any degree of success.

Her presentation to this committee was critical, yet to read their website you would think she was a proponent and a booster of Bill C-7. It's an absolute lie. It's false representation. It's the desperate act of desperate people for the Government of Canada to post on their website falsehoods about who supports and who doesn't support this bill.

I object in the strongest possible terms to my being included on that list of those people who support this bill. For the record, I want INAC to take my name off that list now, because it's absolutely reprehensible that they would even try to sneak this in.

The reason I want this non-derogation reference in clause 17--even though we've succeeded in an amendment that it appears elsewhere in the bill--is that we believe and we are told that the justice department is reviewing the idea of removing non-derogation clauses completely, or revisiting the appropriateness of non-derogation clauses in any piece of legislation as it currently stands.

We want to reinforce that while their process of visiting the idea of whether they should be eliminated, the standing committee, on behalf of the House of Commons and Parliament, is in fact introducing non-derogation clauses because we recognize their importance.

We wish to send direction to the Department of Justice and those who would seek to eliminate non-derogation clauses. We want to send a message to them that says we support and see the wisdom of non-derogation clauses and we want them introduced wherever possible.

Mr. Loubier's subamendment is important to me, because it reinforces what we see as a deliberate omission. If we're going to be honest and accurate and true to what we heard, which was the commitment made by this committee and by the minister to first nations people, then we should be introducing, especially, points of substance such as those brought before the committee at various times.

Â (1245)

When I make reference to this, Mr. Chairman, we believe that the--

The Chair: Thank you, Mr. Martin.

Monsieur Loubier, closing remarks.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, I believe my sub-amendment is extremely important, because throughout this Bill--and this is something unusual, indeed, even strange--reference is made to band councils, but only rarely are band chiefs referred to. And yet the fundamental role of band chiefs in the history of the treaties originally concluded cannot be denied.

When the first Europeans signed treaties with the First Nations, they did so with the chiefs of those nations. They are the primary players when the time comes to implement those treaties now or speak on behalf of First Nations' members.

It's as though a conscious decision had been made to remove any reference, or at least to make no reference whatsoever, in this Bill to the powers of First Nations' leaders. That is quite unusual, because when you look at other laws passed in recent years, there are references to the leaders' power and those references are explicit. But here, the reality of the current governance of the First Nations seems to have been completely set aside.

Is there a desire here to abolish band council chiefs? Is that the purpose? Is this, in fact, an attempt to redefine, without giving anyone an opportunity to have input, a mode of governance for the First Nations, where the chief would have no role? That's quite something.

So, my sub-amendment is presented with that in mind--in other words, to again put the role of the chiefs in perspective and make them prominent players, not only as regards the conclusion of treaties, but indeed, in the process aimed at implementing those Aboriginal treaties, something which has not yet happened in most cases. Who can forget the 500 land claims that are still outstanding--and 500 more could be added to that number; as far as I'm concerned, the role of the chiefs is fundamental and should be enshrined in any piece of legislation, including as odious a piece of legislation as Bill C-7.

Often chiefs translate the reality of what is going on in their community. Last weekend, one allowed a UN representative, Mr. David O'Brien, to visit his reserve. Reading this article that appeared in the Winnipeg Free Press, I'm even more scandalized by the fact that we are still discussing a Bill that nobody wants, a Bill that is insignificant given that it in no way contributes to the advancement of the First Nations, and especially, to an improvement in their socio-économic conditions. And yet we still see articles like this one, that appeared in the Winnipeg Free Press, that said:

Â (1250)

[English]

“Native poverty surprises United Nations official. Life better than it is for most indigenous people.”

[Translation]

And in the article itself, Mr. O'Brien was quoted as saying:

[English]

“I saw poverty which impressed me, particularly in the area of housing and social services.”

[Translation]

To me, the fact that the United Nations representative visited a reserve here and denounced the extreme poverty, as well as the problems with respect to housing and social services on a reserve in Manitoba, is very telling in terms of what this government's priorities are. This government's priority is not to resolve problems of poverty, social housing, social programming or even to provide funding to educate young Aboriginals; no, its first priority is to introduce legislation like Bill C-7 which states, even in the preamble, that it will not resolve such issues as self-government for the First Nations.

In reality, what does this Bill resolve? When you look at the real problems facing the First Nations and see that right in the preamble, it states that the Bill will not have the effect of expediting self-government agreements, then you have to ask yourself, what does this Bill really resolve?

In any case, all we have heard so far is that this Bill creates more problems than it resolves. So why dig in one's heels and show this dogged determination to railroad this Bill through Parliament, since it resolves absolutely nothing? Why, if the First Nations don't want it and have been saying so, loud and clear, even becoming unusually aggressive about it, are you so determined to continue clause-by-clause consideration of this Bill, and to press on relentlessly to have it pass, when even the future Prime Minister of Canada doesn't want it either?

Compared to what one might believe Canada's image to be, when a United Nations representative visits a native reserve in Manitoba and says that he was impressed and extremely surprised by the level of poverty in that reserve, even though Canada boasts about being one of the richest countries on the planet, then there is clearly a dichotomy between the supposed wealth of Canada and its membership in the G-7, and the fact that we find ourselves in situations like the one observed by Mr. David O'Brien, a UN official. What kind of image of Canada is projected when this kind of thing occurs?

And what kind of image of Canada is projected when a delegation lead by national chiefs goes abroad to say that Canada is not fulfilling its fiduciary obligations, that it is not abiding by its own Constitution, that it does not respect the chiefs that have been duly chosen by First Nations' members and that, despite all the court rulings, nobody cares? What image do people retain of this country that you claim to defend in the international arena?

I have the feeling we are not living on the same planet and that we aren't reading the clauses contained in Bill C-7 in the same way, because if we did have the same reading of them, if all we had to do was read the lines that are there because everything that appears in the body of the legislation is so clear, then in our own minds, the situation would obviously be just as clear. It seems to me that if people on the other side of the House took the time to read each and every one of the clauses, they would see that we are really barking up the wrong tree with this Bill and that it should be completely set aide. There is simply no point in discussing it any longer because we have already wasted enough time, energy and saliva on this Bill. So much aggressiveness has resulted from this Bill that at some point, you have to conclude that if it evokes such feelings of anger, it can't be good. It's completely ridiculous.

There is something not quite right in this country. I've known that for a long time, but now I am realizing that it's even more serious than I thought. When we start treating the First Nations this way, it's because--as my father might have said, they're not good for much, or because the fundamental concept of nation-to-nation relations cannot penetrate the wall of indifference in the current Liberal government and its primary players, namely the Ministers and Members of Parliament.

Â (1255)

And yet, on the weekend, the person who has a good chance of becoming the leader of that party made his position abundantly clear. This bill has to be set aside; that is what he said, and he repeated it three times. He said he would not go along with this Bill and that he would not implement it. So let's stop wasting our time, and wasting the time of the First Nations and Members of the Opposition. If the government Members have time to waste, that's their problem.

[English]

The Chair: Thank you, Mr. Loubier.

We will have a recorded vote on the subamendment to amendment NDP-40, on page 142.

(Amendment negatived: nays 6; yeas 3)

· (1300)

The Chair: Mr. Martin, can we have closing remarks on amendment NDP-40?

Mr. Pat Martin: Mr. Chairman, again, I want to acknowledge the legitimate effort Mr. Loubier made to try not only to support this amendment to clause 17, but also to enhance it with a subamendment that we believe would improve even the tone of amendment NDP-40.

Mr. Chair, I would like to build on what Mr. Loubier was saying. He spoke of the international tour that's currently in Canada observing first nations reserves. And he mentioned the special rapporteur from the United Nations Human Rights Committee who's touring the countryside, especially northern Manitoba yesterday, and making observations. As a country, we should be concerned, because frankly, if we're not willing to solve these problems domestically and within Canada, the world is looking at Canada.

The world can't figure out why there's a permanent underclass in Canada, and that permanent underclass is almost overwhelmingly aboriginal. Why would a country as wealthy as Canada, the richest and most powerful civilization in the history of the world and one of the key players in that western civilization that has so much, have allowed, in full consciousness, these inequities to develop, to flourish, to take place?

I should remind us perhaps of the Royal Commission on Aboriginal Peoples' recommendation or observations in volume 5, regarding the fulfilment of Canada's international responsibilities with respect to aboriginal people. The commission recommended that, under self-determination and international law, the Government of Canada take the following actions, and I quote:

(a) Enact legislation affirming the obligations it has assumed under international human rights instruments to which it is signatory in so far as these obligations pertain to the Aboriginal peoples of Canada; (b) recognize that its fiduciary relationship with Aboriginal peoples requires it to enact legislation to give Aboriginal peoples access to a remedy in Canadian courts for breach of Canada's international commitments to them; (c) expressly provide in such legislation that resort may be had in Canada's courts to international human rights instruments as an aid to the interpretation of the Canadian Charter of Rights and Freedoms and other Canadian law affecting Aboriginal peoples;

Mr. Chairman, it goes on and on in terms of the specific references from the royal commission.

Perhaps that was why the chair at one point asked a witness, in a tone of disbelief, “What do you expect us to do, implement the recommendations of the Royal Commission on Aboriginal Peoples?” as if that was an absurd idea. Many of us were shocked by that tone or by that attitude. We thought the objective and the goal was to implement the recommendations of the Royal Commission on Aboriginal People. Never did any of us, on this side at least, consider that to be an absurd idea.

What's getting to be absurd is the fact that the future Prime Minister has already indicated that this exercise is going nowhere. It's an exercise in futility.

When I look at the committee members and then I look at the list of people in Paul Martin's camp, there's a great deal of match-up here. We have in today's Hill Times a list of who is supporting Paul Martin and who is supporting--

The Chair: Mr. Martin, I ask you not to go there. It has nothing to do with the amendment. I'm allowing an awful lot of dialogue that has nothing to do with the amendment or the subamendments, but I feel justified in asking you to cooperate on that.

Mr. Pat Martin: Well, Mr. Chair, the only observation I was going to make involved actually nobody at this table. I would simply illustrate that Bob Nault himself is in John Manley's camp. Perhaps people can draw inferences.

The Chair: And I'm in Paul Martin's camp, so let's leave it there.

Mr. Pat Martin: Fine.

Speaking about the need for a non-derogation clause, I'd like to ask Mr. Salembier, what is the status of the study about non-derogation clauses as it pertains to the Department of Justice? What was the mandate, or what was the Department of Justice asked to do, and what is the status of that study?

· (1305)

Mr. Paul Salembier: If you're asking me whether the Department of Justice was asked to do any legal opinion on non-derogation, I'm not in a position to give you that information.

Mr. Pat Martin: Well, it's not as it pertains to Bill C-7 so much as that we heard the Department of Justice was asked to study and look at the impact of non-derogation clauses in any other pieces of legislation as well. Can you answer that?

Mr. Paul Salembier: Yes. As Mr. Beynon mentioned earlier, I believe, the issue is under discussion with the Minister of Justice, the Minister of Indian Affairs, and a number of senators. I'm sure your information on that is as good as mine.

Mr. Pat Martin: That's disappointing. We have a hard time getting that kind of information, and I certainly don't blame you. I understand fully what you're limited to being able to talk about here. But I find it frustrating that such an important subject is actually being kept from this committee, just as I find it frustrating that the issue Mr. Vellacott has been interested in for 18 months now—the matrimonial property rights and the dissolution of the family properties, etc.—has been taken out of this committee's sphere of study and handed to the Senate; contracted out to the Senate, if you will. We're not going to be able to have any study of that particular clause or that particular issue, when it's probably one of the top three issues dealing with this whole self-governance, certainly the most timely and topical issue of the top three, in the whole country today.

All the more reason for Mr. Loubier's point that we should simply suspend any further study of this bill—right now, today. It's one o'clock in the afternoon. I would say by question period today we should adjourn—we should wrap up our study of this bill and adjourn—and wait to see what happens. It's a misuse of the taxpayers' dollars, for one thing, to proceed any further; to even contemplate spending $550 million to try to force these changes through when nobody in the field wants it, nobody in Indian country wants it. Now it looks as if nobody in the new federal government regime under a new prime minister wants it either. More than half the members of the standing committee are in Paul Martin's camp—I'm not going to go through names, because I've been asked not to—way more than half: I would say most of them.

What are we doing here, then? It really does beg the question. It's a complete, phenomenal waste of time, energy, and resources, and it's antagonizing the entire population of first nations around the country. In fact, as we speak they're organizing a mass demonstration and protests for May 15 in the Minister of Indian Affairs' own riding, in Kenora. It's unfair, frankly, to proceed, knowing what we know now, with any further study of this bill. It's just an absolute, phenomenal waste of time and energy.

Paul Martin himself is stating that “this government's legislation is essentially an example of how you take what is a very good issue and turn it into a quagmire”. Well, the quagmire is a good turn of phrase here. It is an absolute rat's nest—a rat's nest of hurt feelings, ill will, damaged relationships, unreasonable costs and financial outlay.

Even the $1.3 million the federal government is spending to promote this bill in their public relations budget line alone.... Just for their communications strategy, they've thrown $1.3 million at it. So far, all I've seen of it is a few ads in newspapers and some out-and-out bald-faced lies on the Indian Affairs website. To put me as one of the supporters of this bill on their website is either a cruel joke or—

A voice: A shame.

Mr. Pat Martin: —an attempt at humour or sarcasm, or a bald-faced lie. But no one would know they're trying to be funny.

I can see some Indian Affairs officials saying, let's play a joke on Pat Martin and put him on the list of supporters of this bill. But anybody who visits that website and reads the 122 quotes they have in support of the bill would see me as an NDP representative, and that's a hurtful falsehood. That hurts my career, it hurts my reputation, and it misrepresents the position of our party.

· (1310)

The Chair: Thank you, Mr. Martin.

We'll go to the vote now, a recorded vote on NDP-40, on page 142.

(Amendment negatived: yeas 3; nays 8)

The Chair: We're now on NDP-41, page 143. Mr. Martin.

Mr. Pat Martin: We're going to continue trying to amend clause 17. Clause 17 so offends so many first nations across the country they've come to us asking us to help them change this clause. Clause 17 is prescriptive and limiting in its scope. Instead of being expansive, it takes the position that the box is empty until things are allowed to be put in by the federal government. We reject that premise. The inherent rights to self-government include the rights of a council of a band to make laws for band purposes in relation to things other than those listed specifically in clause 17.

We're suggesting that Bill C-7 in clause 17 be amended now to delete subclause 17(2), lines 1 through 5 on page 13.

Subclause 17(2) is the area that talks about conflict with other laws, the same qualifying paragraph we saw included in clause 16, and it says:

In the event of a conflict between a law made under this section and an Act of Parliament or any regulations made under this Act or the Indian Act, the Act or the regulations prevail to the extent of the conflict.

Again, it's the issue of primacy. It's allocating some powers and authorities on the one hand, but with a qualifier that if it runs afoul of any other act of Parliament, the act of Parliament shall prevail, taking away, certainly, from the weight and importance of those rights to establish laws, which are being given with the one hand and taken away with the other.

It's interesting, Mr. Chairman, when you revisit the Royal Commission on Aboriginal Peoples, which is what the starting point should have been for this particular piece of legislation, the principles related to land and aboriginal title warranted a whole area on lands and resources under chapter 4. And that's where I'd like to remind this committee that as it pertains to other acts, etc., the recommendation of the royal commission was that federal policy and all treaty-related processes--treaty-making, implementation, and renewal--conform with the following general principles: aboriginal title is a real interest in land that contemplates a range of rights with respect to lands and resources; aboriginal title is recognized and affirmed by section 35 of the Constitution; and the Crown has a special fiduciary obligation to protect the interests of aboriginal people, including aboriginal title. Paragraphs 16(a) through (m), the principles related to land and aboriginal title, really should have comprised the preamble of any legislation.

This is the first attempt to amend the Indian Act.... Well, it's not really the first attempt; it's the most substantial sweeping amendment to the Indian Act since the Royal Commission on Aboriginal Peoples. And we should have used that as our guideline, our inspiration, to provide guidance. Frankly, we would have run into a lot less difficulty.

You may even have had the broad support from my party had this government tabled legislation that said that pursuant to the recommendation of the royal commission, section 2.4.1, the following clause...and then there would be another clause about in keeping with the recommendation of the royal commission, 2.5.28.

In other words, if there were some connection to the recommendations of the royal commission in any of the clauses of Bill C-7, you would find us supporting those clauses, because we are ready to concede that the Royal Commission on Aboriginal Peoples did get to the truth. If you could connect or tie the clauses being pitched by the government to any clause in the Royal Commission on Aboriginal Peoples, you would find at least broad interest in supporting it. I would be looking for ways to support that clause rather than looking for ways to object to it.

Now, if the website of Indian Affairs were more honest and forthcoming, they wouldn't have misrepresented Doug Cuthand, a journalist in the Saskatoon StarPhoenix, when they selectively took one line from an article he wrote, which said:

Politicians are not there to get involved in the day-to-day operation of a business. Their job should be to create and support a climate that allows business to grow and compete in the marketplace.

That's the quote they used to prove Doug Cuthand's support for this bill.

· (1315)

Let me read it again. This is the entire quote they used to claim that Doug Cuthand supports this bill:

Politicians are not there to get involved in the day-to-day operation of a business. Their job should be to create and support a climate that allows business to grow and compete in the marketplace.

There's no reference whatsoever to aboriginal affairs or the First Nations Governance Act. What he said, actually, in the Saskatoon StarPhoenix on April 25 was:

The federal government is bound and determined to force its Indian governance legislation on us, no matter how much we don't want it.... Democracy and self-government are important, but they must be developed from the bottom up. Ideas and solutions introduced from above don't give the people the ownership that's required for the long term. Nor does the backward-looking legislation proposed by the federal government.

That's what he actually said about the First Nations Governance Act. To take a quote he made on March 8, 2002, about politicians getting involved in the marketplace—in businesses—and to say he's quoted as supporting this bill is absolutely dishonest. Somebody should be fired for this. Heads should roll for this kind of dishonesty. Whoever's responsible for this website should not be working for Indian Affairs any longer. It's disgraceful.

They misquoted John Graham, the director of the Institute on Governance, because he said:

There's some positives. The Human Rights Commission, I think, and the redress mechanism are both trying to improve the accountability institutional aspect of it.

He made some qualifying reference to support, but what they didn't quote was his statement from the same hearing:

“The First Nations Governance Act is a modest step forward. I want to emphasize 'modest'. I will try to make that assertion by showing you what I think are some of the significant governance problems....

“The First Nations Governance Act is not a major step forward in terms of dealing with this particular issue”—divisive, municipal-style elections is what he's talking about. On the second issue, of membership categories of residents: “...divided communities problems will intensify, and of course the First Nations Governance Act doesn't deal with membership issues.”

In other words, most of what this brief said was critical of the First Nations Governance Act, yet to visit DIAND's website you would think the director of the Institute on Governance supported this bill.

I can't forgive this kind of deliberate misrepresentation, and neither should anybody in this committee. In fact, I intend to bring it up with the Speaker of the House, because I believe this has been a deliberate damage. I want to know if there was any foreknowledge on the part of anybody—such as the parliamentary secretary, who may be trying to play a practical joke or something—to try to discredit my reputation by misrepresenting my views, thereby damaging my reputation and my career by putting out absolute falsehoods.

To misrepresent Chief Judith Sayers of the Hupacasath First Nation is particularly offensive, because she's a known authority on this subject, the author of a joint presentation book that INAC did with her as the co-chair. It implies that she supported this bill by saying, concerning the enforcement section:

...we appreciate the fact that somebody has finally recognized that the small fines and imprisonment weren't working. Finally. There's teeth to those laws.

But what was not quoted by Indian Affairs from the same hearing when she presented to this committee was that she said:

The Hupacasath First Nation would like to be on the record as being opposed to the First Nations Governance Act as another piece of legislation that has been put in place without proper processes.

Now, there's quite a stark difference between her acknowledgment that better enforcement is necessary and stating categorically that she is opposed to the First Nations Governance Act.

It's absolutely scandalous; I can't get over this. This was only brought to my attention today, Mr. Chairman, so you can appreciate why I'm still outraged at these lies, these absolute lies, that the government is stooping to in trying to pitch a bill that nobody wants and they know, I think, is going down.

I think they sense the growing outrage out there is reaching a point where the government can no longer.... Well, frankly, it's starting to do damage now. For a government that governs by polls and by whichever way the wind is blowing, the wind is blowing substantially against this bill now. Now that we have the future prime minister stating categorically that he doesn't support it either, and more than half of the people around this table right now on the Liberal side are Paul Martinites, I just can't understand where we're going. I can't for the life of me understand what you think you're doing.

· (1320)

The Chair: Thank you very much, Mr. Martin.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, I am obviously in complete agreement with my colleague, Mr. Martin, with respect to deleting this paragraph. In fact, under this clause, the federal government, in its great generosity, gives certain things to the Aboriginal nations and then turns around, at the end of the Bill, and takes away the powers that the Aboriginal nations should clearly have, which is the power to make laws.

Indeed, I think it would be a good idea for all my colleagues sitting around this table to get a copy of the report of the Special Committee on Indian Self-Government. Unlike the spirit and letter of the wording in sub-clause 17(2) with respect to the possibility of conflict between First Nations' laws and federal laws, and the fact that the latter will prevail, that report suggested, as early as 1983, that it should be the exact opposite--in other words, that the federal government should not intervene in any way in matters relating to the governance of the First Nations.

The starting point of this new era, if one can call it that way, was the possibility of rapidly instituting a third level of government for the First Nations. And yet, looking at this, one would think nothing had happened since 1983. And yet the consultations carried out under the auspices of the Advisory Committee at the time were an extraordinary exercise, which was then complemented by the work of the Royal Commission on Aboriginal Peoples.

On page 59, in the Committee's ninth recommendation, it talks about the spirit in which the Joint Committee carried out its work. It is important to remember that it was composed of both Aboriginal and non-Aboriginal members. With your permission, I would just like to read the following quote:

The Committee advanced the principle that every First Nation has a right to determine who its members are, based on the criteria it establishes.

So, this talks about their regaining control over their band lists. It continues as follows:

The Committee recommends that as a starting point for creating a government, every First Nation establish a procedure providing for the participation of all those who belong to that First Nation in the process of creating the government, despite the restrictions contained in the Indian Act.

That is a powerful recommendation. It suggested wiping the slate clean and starting from scratch to develop the foundations of a real Aboriginal government. In addition, it recommended ignoring contradictions between what would be required to develop the foundations of a system of self-government for the First Nations and the Indian Act. The Idea was not to attack Indian self-government, but the Indian Act.

So, the recommendation was to wipe away 130 years of the Indian Act and determine what a First Nations government would really look like. After that, in cases of conflict, the powers and structure of the First Nation government would take precedence, rather than the Indian Act or any other Act of Parliament or the Minister of Indian Affairs.

Right from the outset, the suggestion was to build this third order of government, establish a power structure for that order of government, in order to give concrete expression to the inherent right of self-government, and ensure that Aboriginal treaties would not just be wishful thinking but would continue to be adhered to. It was also suggested, in cases where some aspects of the structure and powers of that new order of government would be inconsistent with the desires of First Nations, that those aspects--not the vision and socio-political goals of the First Nations--be modified.

I believe my colleague, Mr. Martin, is bang on. If we're talking about Aboriginal self-government, we should not be arranging things so that those powers will be exercised within the limitations of non-Aboriginal laws. That makes no sense whatsoever. If that were the case, no Aboriginal government in the world would ever be truly autonomous, if another level of government could in fact come along and block its authority by imposing its own laws. That is absolutely ridiculous.

· (1325)

And that is not how we should be viewing the future of our relationship. We want our future relations with the Aboriginal nations to be exactly the opposite of what they have been over the last 130 years that the Indian Act has been in place. I have said that again and again, but it is fundamental: we must see the relationship between our peoples as being one where we treat each other as equals.

Maybe there is something wrong with me, but I cannot conceive how we could not respect the ambitions of other peoples and still respect our own. It would be completely inappropriate for me, as a Quebecker, not to recognize that other peoples want to build, and often, rebuild their nations, when my hope is for my nation is that it can exercise its right of self-determination, have full government autonomy and be sovereign in its powers.

So, it is perfectly clear that I could never agree with a Bill like this, the initial clauses of which say that the federal government, out of the goodness of its heart and in its great generosity, will grant certain powers to the First Nations, when in actual fact, it has no business being generous, because those rights already exist, as do their rights under Aboriginal treaties. In fact, several paragraphs further on, and specifically in sub-clause 17(2) that we want to delete, it says that the right to make laws is completely annihilated by other provisions of the Indian Act or other Acts of Parliament. That is absolutely ridiculous.

The 13th recommendation of the Special Joint Committee is particularly insightful. I would remind you that it was in 1983 that the report of the Special Joint Committee was made public. It says in the 13th recommendation on page 65, and I quote:

To ensure that action is taken immediately, the Committee is recommending that all possible policy changes relating to existing laws that would contribute to self-government, and that the designated representatives of the First Nations consider acceptable, be made without waiting for new legislation to be enacted.

In other words, what is very important about the 13th recommendation is that it said that the federal government should be taking a completely different course of action from the one it is now. This recommendation said the government should take immediate action to ensure self-government could become a reality and therefore allow the inherent right of self-government to be given concrete expression, and that it should stop relying on the same legislation and stop waiting for an new Bill that has unanimous support to be enacted.

As early as 1983, there was unanimous agreement on one thing--namely that the First Nations have an inherent right of self-government and that they want to exercise that right. Everything else is nonsense or is completely inappropriate or unimportant. Also, if we continue to want to control the First Nations, such an approach is completely inconsistent with their inherent right of self-government.

So, are we going to decide, once and for all, to leave the First Nations alone and let them define themselves, as well as the type of government they want to institute and the powers they wish to exercise? Those powers are not ones that we conferred upon them; they already have the power to govern themselves and establish the areas where they want to exercise their prerogatives. And they could be quite extensive, as they would be for any order of government. I have only to look at the agreement signed with the James Bay Crees, that we call the “Peace of the Braves”. It sets out a series of legislative powers in a wide variety of areas, including economic development, social development, management of health care, international representation, promotion of their customs and language, and so on. Those are real powers--not the kind of municipal powers we see in Bill C-7.

· (1330)

The same applies to the draft agreement with the Innu. Four Innu First Nations are currently negotiating with the Government of Quebec.

[English]

The Chair: Thank you, Monsieur Loubier.

Mr. Hubbard.

Mr. Charles Hubbard: Thanks, Mr. Chair.

I thought it was the intent of this committee that we would have amendments with the proposer having up to ten minutes to make a presentation--up to. It seems the two members opposite want to take the full ten minutes.

I thought also, Mr. Chair, they would speak to the amendment, which again is questionable in most cases. I thought that after each member had a chance to speak for up to ten minutes, the mover of the amendment had ten minutes to answer any questions that other members would bring to him or her.

I want to present to the mover of amendment NDP-41 a very definite question, which hopefully he'll explain.

People back home are watching this on their CPAC. We'd like to think they would have patience enough to see the real intent of amendments and motions that were made. I'm afraid, Mr. Chair, that we're boring them to tears with things that aren't dealing with that particular amendment.

In terms of clause 17, it says “The council of a band may make laws”, and it lists 12 different categories under which they may make laws. The question I would ask the mover is whose law would be supreme in terms of a law made by a band council and a law made by the Parliament of Canada?

It would appear, anyway to me, that the mover is saying that a band law would take precedence. Perhaps he could explain to our viewers why he thinks that 600 and more first nations across Canada could pass band laws on 12 different categories and those laws would not be subject to the laws of the Parliament of Canada.

The Chair: Thank you, Mr. Hubbard.

Mr. Martin, closing remarks.

Mr. Pat Martin: I believe that Mr. Hubbard wants to rewrite the very closure rules that he put into place to limit the debate on this bill so that they could ram it through Parliament that much more quickly. Perhaps he's frustrated now that he didn't limit the debate even more dramatically.

When we began the clause-by-clause study, there were no time limits associated with how long a member could speak to develop an idea, or to make an amendment succeed, or to honestly debate and argue an amendment.

The government saw fit to limit this democratic right that members of Parliament had at committees by moving closure, by moving time allocation to limit and restrict--

The Chair: Mr. Martin, in all fairness, before we started the clause-by-clause, we had a notice of motion from December dealing with the time allocation. It was not at that time that anybody decided to introduce it. As a matter of fact, there wasn't even a notice of motion. It was a motion that we'd dealt with before the Christmas break and that the committee decided we would defer, and it had to be dealt with before we got into this. In all fairness, it wasn't something spontaneous that anyone put on the table in reference to this bill.

Mr. Pat Martin: Thank you for that clarification, Mr. Chair.

The point I am making is this. Prior to the clause-by-clause analysis of this bill, or any other bill, this committee never had time allocations in its conduct and practices until we started dealing with Bill C-7, really. Whether the motion to limit time allocation was put forward in December or in February, when we began the clause-by-clause analysis, was secondary to the fact that the government didn't want us taking the full time to develop clauses and amendments here. And it moved a time allocation to limit every MP to only ten minutes to develop ideas, no matter how important and critical those ideas were. And we have been dealing with issues of substance--for instance, the issue associated with matrimonial property provisions, etc.

To limit to ten minutes the dealing of those specific issues is atrocious, and it tells me the government is not really interested in dealing with these issues at any length; the government is interested in passing this bill as expeditiously as possible.

So now Mr. Hubbard is frustrated because some of us on the opposition benches are taking the meagre ten minutes allowed to us to develop these ideas around these weighty subjects. And he's frustrated that this process, again, is taking time. It's through that frustration that he's lamenting and protesting now that I'm going to take my ten minutes to speak about this particular clause.

Moving amendments on behalf of first nations people is the only way their voice gets heard around this table at all, because there are no aboriginal people invited. If we didn't use our meagre ten minutes we're allowed, these positions would never be heard at all.

If that bothers the parliamentary secretary, that's tough luck. That's absolutely tough. It's your bad luck, then, that you have to listen to us explain to you what's wrong with the First Nations Governance Act. That's the cross you have to bear, Mr. Hubbard, because that's why you--

· (1335)

The Chair: Can you refer to him by title?

Mr. Pat Martin: That's why the parliamentary secretary goes out for the big money, because he has to sit there and listen to us explain to him what's wrong with this bill. Whether he likes it or not, it's not just the pleasure of our company, I'm sure, that keeps him coming back over and over again to listen to us explain to him.

Now their own boss, ironically—I suppose they're taking their direction from Minister Nault, who is a John Manley fan, but their ultimate future boss has told them he believes what we're doing today will simply lead to a decade of court cases; that's Mr. Martin's quote. He says we have to have a fresh look at how this partnership is developing.

I think the soon-to-be-elected new Prime Minister of Canada is proposing what we have been trying to propose throughout this entire process: that we have to think outside the box; we have to expand our horizons in revisiting how the relationship between first nations and the federal government is going to evolve from this day on, because the history of the relationship has been a disaster. Anybody who wants to repeat that history is frankly—I'm not going to say the word—not thinking very clearly.

Dante had a special level of the Inferno for those who had the ability to prevent evil and chose not to do anything about it. That's a special depth of the Inferno reserved for those people who had the ability to effect change and chose not to. That would be the category our committee would find itself in if we pass up this opportunity to effect meaningful change in the lives of first nations and at least to minimize or reduce what has been such an atrocious, harmful, and hurtful past-practice experience.

I'm reminded, and I'm sure we'll be reminded further by the United Nations Human Rights Commission when the delegate brings back his report after touring Pauingassi, Grand Rapids, and Poplar River—all three places, ironically, that I took the leader of the New Democratic Party to last month.... I thought he would be interested to see, as a newly elected leader of a federal party, the conditions of some northern Manitoba first nations communities, and he was.

In fact, he went around the northern stores with his little palm pilot and recorded some of the prices: four beaten-up Delicious apples, $9, wrapped in cellophane; a four-litre carton of milk, $16. People were astounded. Then you wonder why children are malnourished and people can't.... Ironically, in some provinces the price of beer is subsidized, so it's a standard price everywhere in the province. The price of milk is not: it's air-freighted in so that you have to pay the whole cost of delivery, etc.

It was a big eye-opener for the leader of the New Democratic Party to attend these three reserves. It was a big eye-opener for the United Nations rapporteur to visit these communities and get an eyeful of Canada's greatest failure, which is its treatment of first nations people, the permanent underclass that we, either by omission or deliberately—I don't know which.... It was deliberate at first, the intention to ruin aboriginal people with the smallpox blankets, etc.; it was deliberate then, and now it's just by omission that we continue the same offence, by our failure to act. History will remember those who tried, I think, to improve or remedy the situation and those who ignored it or failed to act. That will be for history to record.

What we find, Mr. Chairman, is us getting increasingly frustrated as the hours tick by, trying to effect changes to clause 17, which limits in the most prescriptive and narrow way possible those categories of issues the council of a band may make laws in relation to. We argued it should be far broader and more expansive; it should go even beyond gravel and mud, and different kinds of gravel and mud, as the economic opportunity or resources over which first nations shall have governance and control—sand, gravel, clay: all those wonderful, valuable commodities.

We sought to have this clause amended to include gold, rubies, silver, pearls, diamonds—any other of those natural commodities that may in fact occur within a first nations community.

· (1340)

Maybe they'd be more interested in having control over gold, pearls, and rubies than over mud. Mud is nice. Mushrooms are nice, too, but we saw fit to specifically include mushrooms: first nations will have the complete right to govern the trade of mushrooms in first nations—not in their traditional territory, but on the reserve itself. But they wouldn't include oil and gas, molybdenum, uranium, any other things that may actually be of some value on any commodities exchange.

Mr. Chairman, we're getting frustrated and we're all getting tired. We took the weekend off, and the right thing to do right now is—and I'm going to propose this as a motion—that this committee should adjourn immediately and suspend the clause-by-clause study of this bill until such time as the Martinite members of the committee get some direction from Paul Martin as to how he wants to conduct the rest of this business.

The Chair: Is that a motion?

Mr. Pat Martin: That's the motion, yes.

The Chair: I have a motion that we adjourn until...?

Mr. Pat Martin: Until such time as Paul Martin says what to do about the bill.

The Chair: Are you ready for the question? Those in favour?

[Applause ]

The Chair: Ladies and gentlemen, you just interrupted a vote. Please have some courtesy for the members.

(Motion negatived)

The Chair: Now for the vote on amendment NDP-41, page 143. Are we ready for the vote?

(Amendment negatived: yeas 2; nays 8)

The Chair: We're on amendment NDP-42, page 144.

Mr. Martin.

Mr. Pat Martin: We are still seeking to amend clause17, in this case by replacing lines 1 to 5 on page 13, which is the reference to the fact that in the event of a conflict between laws passed by the first nation and other acts passed by Parliament, the act or the regulations shall have primacy.

In this case, I wish to suggest alternate language for subclause 17.(2), which would read now:

(2) In the event of an irreconcilable conflict between a law made pursuant to an authority vested by this section and an Act of Parliament or any regulations made under this Act or the Indian Act, the conflict shall be resolved through a conflict resolution mechanism negotiated between the band and the Minister.

This is, I believe, a common-sense amendment that would give some direction on how these disputes may be resolved, without automatically assuming that the minister shall win every one. Under the current Bill C-7, there's no question that whenever a conflict arises, this prescribes who the winner shall be of that conflict. It automatically says that the Crown or Parliament or the minister shall win this dispute.

In my proposed amendment, if a conflict arises, there is a dispute mechanism of some sort, in this case, to be determined in cooperation with the band and the minister, to at least contemplate the idea that perhaps the band is right.

Perhaps at least be willing to consider the idea that in the event of a conflict it's not always the Government of Canada that's right. Sometimes the band is right. This would at least allow that possibility in a situation like this.

Again, this was brought to our attention by submissions by first nations that made representation to this committee, and we should also draw from the Royal Commission on Aboriginal Peoples. If no one else, in drafting this bill, considered the recommendations of the royal commission, then I think it's our duty and our obligation to at least refer to it as often as possible.

Under recommendation 1.11.5, “Alternative Dispute Mechanisms”, it suggests that

The Canadian Human Rights Commission be authorized specifically to provide a range of alternative dispute resolution mechanisms, including mediation, facilitation, and consensual arbitration.

Any one of those proposals would be possible under the language that I am proposing here today, that a conflict resolution mechanism be negotiated between the band and the minister. The two sides would stipulate themselves to that binding third-party arbitration, in whatever form they may see fit for it to take. And nobody in this committee will be the ones to dictate or prescribe what it should look like. It would be arrived at through negotiation. Then the two parties will go through those steps and a choice will be made and the parties will live by it.

This is how binding third-party arbitration works, Mr. Chairman, but it's a fighting chance. It at least contemplates the idea that there's a possibility that in the event of a disagreement, an impasse, or a conflict, the first nation may in fact be correct.

So we're trying again to limit those areas of this bill where it's absolutely in favour of, and we believe unfairly...that in the event of a tie the decision always goes to the government.

This is what's so glaringly unfair about this bill, when it's read through the eyes we read it through, and that's through the eyes of the first nations people who are affected by the bill. That's whose point of view we're trying to bring forward.

We don't see any of the champions, any of the 122 voices who the government claims to be the boosters of this bill, bring forward any meaningful recommendations or suggestions. The government's communications strategy is $1.3 million worth of pure propaganda, and it's misleading.

Who we do listen to are the actual reasonable people who gave this bill careful consideration and who then brought forward meaningful amendments to the committee, in the hope and the optimism that somebody would clean out their ears and start to listen to first nations for a change, instead of having this dismissive attitude about chiefs.

· (1345)

Some of us on this committee have some respect for the position brought forward by the legitimately selected leadership of first nations, and we've given those recommendations and proposals serious consideration, tested them by putting them through the legislative drafting people, and put forward amendments to that effect. The Assembly of First Nations' own recommendation with regard to these lines is that “...the conflict of laws provision..., by granting universal paramountancy to federal laws and regulations, is inconsistent with the recognition of self-government rights and fails to give adequate weight to the central importance of the areas in which these band laws are to operate.” That's a legitimate point of view and a legitimate argument, and it begs amendment in the bill itself.

What we're proposing would not give first nations the absolute supreme power; neither would it give the federal government the absolute power or primacy: it would put both parties on more of a nation-to-nation playing field where in the event of a dispute it would have to be resolved through a dispute resolution mechanism. What could be more civilized than that? Isn't that how nation-to-nation relationships work?

Look at NAFTA, the free trade agreement—although in that case, our negotiators traded their family cow for three beans, none of which have sprouted. Maybe that's a bad example, because nation to nation doesn't mean your bargaining strategy is on your knees. Nation to nation means you stand up on your hind legs and address these issues from a stance of equal advantage.

Clause 17 of Bill C-7, as it's contemplated in what's being put forward by the government, gives the advantage to the government. Not surprisingly, it speaks again to the fiduciary responsibility that the government is ignoring. They have an obligation to represent the best interests of first nations people, yet they put in place rules that favour themselves over first nations every time. That's the basic unfairness of it all, that it's easy when you control the game.

If you control all the rules of the game it's easy to write rules that are in your favour. But they are obliged to take into consideration the best interests of the first nations over whom they have almost absolute governing authority now. Rather than acknowledge that first nations have their right to self-governance, and acknowledge that the right exists as an inherent right if anything, the government is sandbagging their protected rights and powers and reinforcing their own powers by not even contemplating or entertaining the idea that in a case of impasse or a disagreement or an irreconcilable conflict—that is the way it was phrased here in the amendment we chose to put forward—the conflict shall be resolved through a conflict resolution mechanism, which is the most civilized way to resolve conflict, Mr. Chairman.

What are your options? War is one, I suppose. That's not being contemplated by either side. A rule-of-law regime that automatically rules or arbitrarily rules is another. But the third and most civilized way, especially when there's an imbalance in the power relationship that we're trying to mitigate, is we want to have equal partners, nation to nation, be able to resolve these things—to sit down at the table and stipulate or submit a best case to an outside third party, or whatever resolution mechanism is negotiated between the band and the minister. Then on the merits of the case, it will fall one way or it will fall the other way, but it won't always fall in favour of government, which is the way government has written this particular bill.

I can't believe the government thought they would actually get away with this—or whoever wrote this bill. It certainly wasn't the people around this table. It wasn't the members of the standing committee on aboriginal people who were asked to put together a bill to address these issues. This bill was put together by God knows who, God knows where. They certainly didn't take into consideration the best interests of the people it will affect.

Now, if we were being fair, and if we were being—

· (1350)

The Chair: Thank you, Mr. Martin.

Mr. Hubbard.

Mr. Charles Hubbard: Mr. Chair, seeing that we have what look to be 79 more amendments, and with the importance of question period, I would move, Mr. Chair, that we suspend until—

The Chair: Are you calling a point of order, Mr. Hubbard?

Mr. Charles Hubbard: I was going to make a motion to—

The Chair: You signalled that you wished to speak. I recognized you. You started speaking.

There's a difference between being given the floor and addressing a point of order.

· (1355)

Mr. Charles Hubbard: I thought I was speaking, and I was going to move that we adjourn until after question period.

The Chair: Here's what happens now. You started speaking, and by putting a motion you put an end to your ten minutes.

Mr. Charles Hubbard: That was my intent.

The Chair: Now I have a motion to adjourn until after question period; that will be until 3:15. Those in favour?

(Motion agreed to)

¹ (1520)

[Translation]

The Chair: We are resuming consideration of Bill C-7. We are on Amendment NDP-42.

Mr. Loubier.

Mr. Yvan Loubier: Thank you, Mr. Chairman. It was great to be able to go to Question Period. It's nice to get answers when you ask questions. But today, I can't say we really got any.

Mr. Chairman, I support the amendment moved by my friend, Pat Martin. We had actually moved a very similar amendment to another clause of Bill C-7. Unfortunately, our Liberal colleagues voted against that amendment, which demonstrated the profound wisdom of the Bloc. Practically every modern agreement or treaty these days contains this kind of clause, allowing the parties or signatories of the agreement to establish a mechanism for resolving conflicts or disputes that can arise in the application of a treaty or the provisions of a bill. When we asked the experts whether this sort of thing could be a good idea--in other words, having a mechanism for resolving conflicts--they told us there were no precedents in that area. But that is absolutely untrue. There are many, many precedents, particularly as regards trade agreements, for example.

We have already tested the first Free Trade Agreement signed with the United States seven years ago, which contained a conflict resolution mechanism. That mechanism, more often than not, resulted in rulings in our favour when conflicts arose between Canadian businesses and American businesses; so, when you're dealing with that kind of agreement, it is a good idea to consider such a thing, since neither one of the parties can be absolutely right when it comes time to apply a rule, particularly a rule that has all kinds of impacts and ramifications for many federal laws, the Constitution, and even the Canadian Charter of Rights and Freedoms.

I cited the example of the Free Trade Agreement with the United States, but this kind of conflict resolution mechanism is also found in NAFTA, the North American Free Trade Agreement, which is the trade agreement signed by Canada, the United States and Mexico. And it works, because by including a mechanism for resolving disputes, the parties get the message that it is possible to come to a perfectly reasonable and objective arrangement when conflicts arise that, at first glance, seem insoluble.

In this case and in others… I could also give the example of the General Council of the WTO, the World Trade Organization, formerly known as GATT, which acts as a conflict resolution body. The ILO, the International Labour Office, also has this kind of conflict resolution mechanism in place to deal with disputes that can arise around the world regarding the application of labour rules or various UN resolutions dealing with respect for labour legislation, the treatment of workers, the workplace environment, and so on. Sometimes, such mechanisms are very helpful to us; in other cases, not so helpful. But what is important is that with this kind of mechanism or institution, we ensure that whatever system is put in place really works.

For example, in the Free Trade Agreement with the United States, the conflict resolution mechanism is overseen by a three-person panel: one person appointed by Canada, another appointed by the United States, and a third person appointed by both. In that way, we are able to maintain, or at least we think we can maintain, a certain objectivity in terms of the rulings handed down by that conflict resolution body when an insurmountable obstacle or dispute arises with respect to the wording of these or other agreements.

¹ (1525)

Some people will say that such mechanisms only complicate matters. When we first brought forward such a proposal--I believe it was with respect to clause 3 or 4--we heard a Liberal colleague say that it would only complicate things and make the legislation too difficult to administer, because at some point, decisions and direction would be needed.

My view is that, on the contrary, if we have a conflict resolution mechanism, when conflicts arise that may seem irreconcilable in terms of what the First Nations believe their law-making powers to be and what the federal government is not willing to recognize as First Nations law-making powers, it would be appropriate for such an institution to be established on a fair and equitable basis between the federal government and the First Nations. It would also be appropriate, as is the case with this kind of conflict resolution mechanism, for a third party to be appointed jointly for the purposes of resolving any disputes that could arise.

In spite of all the positive elements of this amendment, the fact remains that this is an amendment which, like the others, is attempting to improve things. However, you cannot improve something that is fundamentally bad. And Bill C-7 is fundamentally bad. The First Nations don't want it. The First Nations have been telling us--rightly so--that this Bill does not respect their true status and is not in keeping with the many court rulings that have come down, including United Nations resolutions on the right of self-determination and the inherent right of self-government, a right given by the Creator that no one can change or amend, and for which no other body can claim to act as a substitute, not even the federal government.

In Question Period today, I found it almost surreal that when I asked the Prime Minister why he refuses to withdraw this Bill, given that the man who will be Prime Minister has said he will not enforce it, he answered that we have to do away with the despicable Indian Act that has been in place for 130 years, and that Bill C-7 is promising to do that. But that's wrong; that's a lie. The Prime Minister lied. That is completely untrue; this will not replace the Indian Act. This is just an example of top loading, as they say. It will come on top of the Indian Act. All the despicable aspects of the Indian Act are there, but on top of that, they're making things even more complicated, because they're adding other clauses that will often conflict with the Indian Act, other Acts of Parliament and even the Constitution.

So, why doesn't the government stop telling these lies and stop saying that it wants to improve the lot of the Aboriginal nations, because what was served up as an answer today by the Minister of Indian Affairs and the Prime Minister is nothing but a web of lies that in no way jibes with the reality of Bill C-7.

It's easy to bandy about insults. I think we've reached a point, with this Bill, where all the Liberals can do is insult people that don't agree with them. That's what goes on here and in the House of Commons as well, through the Prime Minister.

I would like to move a sub-amendment to Mr. Martin's amendment, in the English version that would be to add after the words “the minister”…

¹ (1530)

[English]

In English it would read, “and the result of the resolution tabled in Parliament and referred to the appropriate committee”.

Mr. Pat Martin: That's an excellent amendment.

The Chair: Clerk, please read the subamendment.

Mr. Jeffrey LeBlanc (Procedural Clerk): The subamendment is to add after the word “Minister” the words, “and the result of the resolution tabled in Parliament and referred to the appropriate committee”.

The Chair: Do you have a point of order, Mr. Godfrey?

Mr. John Godfrey (Don Valley West, Lib.): We may need some help from our associates here, but I would like to ask the clerk if this is in technically good order. Is it receivable not simply because it's been put forward, but also because it is done in a fashion consistent with the amendment itself?

Mr. Jeffrey LeBlanc: It adds an extra step to the amendment, but it is receivable.

The Chair: Mr. Loubier.

[Translation]

Mr. Yvan Loubier I'm pleased to hear it confirmed that this sub-amendment is in order.

Indeed, I was going to say that we don't only need to ensure there is a conflict resolution mechanism in the event of an irreconcilable conflict in relation to a federal law or other laws, but we also have to make the minister responsible and ensure the process is a transparent one by making that conflict resolution arrangement public, because far too often, agreements are made behind closed doors, and no one other than the instigators know about them. And then we realize at some point that agreements have been made.

The Minister has remained silent about such agreements. And when a conflict arises, no one thinks about a mechanism for resolving an irreconcilable conflict, precisely because no agreement has been tabled, either in the House of Commons, the Senate or before the appropriate committee, regarding the establishment of an institution aimed at insuring that any agreement, arrangement, treaty or law is applied to the satisfaction of both parties.

If we had true self-government agreements, something that we won't see in this Bill, this would be very valuable, to ensure that these self-government agreements--and I mean real self-government agreements concluded based on the recognition of, first of all, the Aboriginal nations; second, the inherent right of self-government; and third, ancestral treaty rights--for this kind of institution to exist, to be able to deal with any conflicts that could arise. Particularly since the Royal Commission on Aboriginal Peoples, that made its report public five years ago, said that we should be concerned and look to implementing a whole series of initiatives that could take more than 20 years, in order to translate the inherent right of self-government and the ancestral rights of the First Nations into a plan for First Nations government, with real powers for the First Nations.

That Commission also said that what was required was practically a revolution, because unlike what has gone on for the last 130 years, we needed to establish a new foundation for our relationship, a foundation which has not been tested over the time the Indian Act has been in place. And, as with any revolution, developing a new basis for the exercise of the inherent right of self-government means that there is no past experience to refer to, and under the circumstances, it becomes essential to establish an institution for resolving conflicts with respect to the application of certain self-government clauses, and that that institution be required to follow clear rules, so that we can have objective analysis, and objective and fair decisions in terms of the most appropriate interpretation of the solution that is needed, in the event of an irreconcilable conflict between laws made by a third order of Aboriginal government and an Act of Parliament or other regulation.

Once again, I want to come back to the fact that this sub-amendment, even though it improves the Bill in terms of conflict resolution, also improves, if my colleague, Mr. Martin, doesn't mind my saying so, his own amendment since it complements it in making the minister publicly accountable. I think we have to return to the same conclusion we reached when we first began examining this Bill clause-by-clause, in recognizing that this Bill simply cannot be amended to make it acceptable.

¹ (1535)

I was listening to the Prime Minister during Question Period saying that they were there to improve things, and that if improvements were needed, they would make those improvements. He said we should propose improvements, substantive amendments, and that they would assess the value of those proposals. And when I pointed out to him that none of the substantive amendments moved by the opposition had been accepted--or practically none--he said it was because we were all a bunch of fools, and that was why none of our amendments

If I had had time for a third question, I would have drawn the Prime Minister's attention to the fact that the proposed amendments moved by the NDP and the Bloc since we began clause-by-clause consideration of Bill C-7 are linked to the traditional demands of the First Nations, and that in developing these amendments, we took our inspiration from what we heard when we went around the country, and from the briefs that were tabled and that we read and analyzed.

But it's a little too easy to simply respond by insulting people. When you're completely at a loss, it's easy to say that the other guys are fools and that's why their amendments were not accepted. In fact, had I put a third question to the Prime Minister, I could have paraphrased his own words, because he has already stated in the House that insults are the weapon of the weak. And I think he is right. But he should take some of his own medicine, because this afternoon, he certainly was not a credit to the office he holds, not at all.

There are very serious arguments on the table that militate against this Bill. Also, the current political environment is changing, because the person who aspires to become Prime Minister doesn't agree with this Bill. The Liberal Party leadership race is now taking control of the affairs of state. The attitude of the current Prime Minister seems to be hardening in light of Paul Martin's comments, and the animosity connected to the leadership race is now going beyond the boundaries of the Liberal Party to actually influence the decisions of government. Now that is serious.

It is serious when you have to say that the current Prime Minister is taking a tougher stance today because he resents Paul Martin. Paul Martin took a stand against this Bill; he said he would not enforce it. The Prime Minister seemed outraged by that and seemed determined to win this one, even though what he is doing makes no sense, just to oppose his former rival, Mr. Paul Martin.

In my view, that is really too bad, and I also find it too bad that these absurd statements are being made about the Bill in Question Period. Even the Minister of Indian Affairs, Robert Nault, went and said that changes absolutely had to be made, that we had to change the Indian Act and replace it with something else, when in actual fact, we are changing nothing at all, and we are certainly not replacing the Indian Act with Bill C-7. He seemed to demonstrate a completely open mind in terms of improving the lot of the Aboriginal nations and speeding up negotiations on self-government, when even the preamble of Bill C-7 clearly states that this legislation will not have the effect of expediting or replacing such self-government agreements.

So, this is a case of usurpation. This is a travesty of reality. People are even prepared to lie to prove that they are right to force Bill C-7 down everybody's throat. It is a pretty sad sight to see all these attempts and to hear the Liberals insulting everyone who doesn't agree with them, proclaiming, every time they have a chance, that they are right, and that all the people opposing this are doing so because they don't want anything to change, don't want things to change for the better, that we are in a rut, and still wallowing in old ways of doing things and old value systems.

But maybe they should take a look at themselves, and at the current Prime Minister, because the direction taken in Bill C-7 bears a very curious resemblance to his old 1969 White Paper. He is the one that is completely behind the times. He is the one that is determined to leave a legacy. And what a legacy it will be!

¹ (1540)

[English]

The Chair: Thank you, Mr. Loubier.

Does anyone else have comments on the subamendment?

Mr. Martin.

Mr. Pat Martin: Mr. Chairman, I appreciate Mr. Loubier's attempt to move a subamendment to NDP-42. I welcome his subamendment and view it as a friendly one. He is legitimately trying to recognize the substance of what we are seeking to achieve in amendment NDP-42 by adding to it and, if anything, improving the amendment to really address this whole concept of a conflict or dispute resolution mechanism to be negotiated between the band and the minister in the unfortunate event of an impasse.

This is an honest or a front-door approach to a complicated problem that can and does arise as jurisdictional authorities are being negotiated and fine-tuned. This happens at the federal or the provincial levels with the Minister of Intergovernmental Affairs. It's not unusual at all to have this type of impasse between levels of government. For that very reason, I note that one of the busiest ministers in the federal cabinet is the Minister of Intergovernmental Affairs. The same applies to our provincial NDP government, where our minister of intergovernmental affairs is also the deputy premier. That's how high up this particular task is. The value we assign to this particular task or chore is indicated by our having chosen a person of the rank of deputy premier to be our minister of intergovernmental affairs. These issues are complex and frequent and are very important in terms of determining areas and spheres of jurisdiction.

We're being upfront on this when we present this particular amendment. We believe that the government is being less than upfront when it proposes subclause 17(2). When it speaks to, “In the event of a conflict”, we believe there is a hidden agenda and a hidden meaning associated with the subclause that the government has put forward.

This brings me back to the lack of transparency and accountability on the part of the federal government and the department in the treatment of this issue altogether. As an example, I'm again going to use the federal government's own departmental website where, in this case, they quote a Chief Marcel Head. On its website, the government says that he is the chief of Shore Lake Reserve, when Marcel Head is actually the chief of Shoal Lake Reserve. They have his name wrong because they clipped it from a CBC radio story of June 1, 2000. So they took a selective clip from him three years ago, when he said, “I look at this First Nations government act and I see an opportunity for our people for the first time in history to voice out.” That was before anybody had seen the proposed act, because it was within days of the minister first announcing that he planned to introduce an act. What Chief Head of Shoal Lake actually said on February 5, 2003, when he presented before this standing committee, was to advise Parliament to reject Bill C-7 in its entirety and to focus resources and attentions on initiatives toward truer self-government. That would be a more honest quote from Chief Marcel Head, who presented with the Prince Albert Grand Council delegation before the standing committee on February 3, 2003.

To take a selected quote from a CBC radio transcript, and even to misspell and fail to understand the name of the reserve that this individual came from, and to take that one sentence in isolation to try to paint a picture that this particular chief supports the bill is the same as telling a lie. This is tantamount to lying. Again, whoever is responsible for this website should be dismissed from the Department of Indian Affairs and Northern Development. The individual should be fired for undertaking this kind of thing.

¹ (1545)

There is a big difference between what we heard in the House of Commons today when three political parties asked questions of the minister and the Prime Minister about this bill.... When the parliamentary leader for the NDP asked the Prime Minister what he thought of the future Prime Minister being opposed to the bill--and, I guess, by connection, the 100-and-some-odd MPs who support the future Prime Minister--I guess he wondered about the efficacy of going any further with the bill, given the waste of resources and energy and the damage done in the community to the relationship between the federal government and first nations. He wondered if it was wise to proceed at all, and what the Prime Minister thought of this. The Prime Minister answered by making a connection that we have been seeking to make and have inferred many, many times in our comments. The Prime Minister actually drew the parallel to the 1969 white paper and justified proceeding with Bill C-7, because, as I understood him to mean--at least as much as you can ever understand the Prime Minister's answers--that Bill C-7 would essentially complete the job started in 1969 with the white paper.

We all know that the Prime Minister was the Minister of Indian Affairs at the time, and we all know that the white paper so enraged first nations people across the country that it spawned a whole generation of militancy and activism to protect themselves. If anything, it awoke a sleeping giant and made people across the country realize that first nations need to get more of their people educated and through university, and to become authorities and experts on constitutional issues so that they can protect themselves against things like the 1969 white paper.

If the Prime Minister thought he was throwing water on a fire by his answer, if anything, he was throwing gasoline on this fire. I hope people who are watching the proceedings of these committees were also watching question period today, to see what the Prime Minister thinks of his Minister of Indian Affairs pushing this bill and spending hundreds of millions of dollars of taxpayers' money to promote this bill and push it down the throats of people who have clearly stated that they neither want nor need it.

The amendment I put forward to subclause 17(2) is anticipating the inevitable conflicts that will come when we, as a nation, begin to recognize the inherent right to self-government or self-determination over the many, many things or jurisdiction that any independent governing body of theirs has to deal with. Those activities may run into conflict with other legislation of the federal government on the primacy of same things.

So my recommendation is that in the event of that inevitable occurrence--because this type of conflict is going to happen--we should be contemplating and anticipating this, and as per the recommendations of the Royal Commission on Aboriginal Peoples, we should be putting into place an alternative dispute resolution mechanism, including, in their view, mediation, facilitation, and consensual arbitration. That's the cafeteria-style selection process or the possibilities we could choose from. Those are things that we could look to. My amendment actually enables the parties to look to any one of those possible dispute resolution mechanisms, the most civilized ways of dealing with an impasse, rather than going to the courts or the full litigation route.

When Mr. Loubier wanted to add to and continue that thought, he also included this committee and Parliament in that process. The way I view it or that the NDP amendment puts it forward, the process may be negotiated between the band and the minister. Again, this amendment came from submissions made by first nations to the committee. This is not stuff I make up. It's not my job or my business to invent these things. We heard this from the genuine authorities in this field, who are the first nations leadership, who have made it their life work to study these things and to protect themselves from the wishes of government, if you will.

¹ (1550)

Mr. Loubier's subamendment contemplates that the findings, or the result arrived at by this new conflict resolution process, could be reported or referred to Parliament and then be referred to this standing committee for our consideration and information, so that we are kept informed and kept abreast of the process. This is part of the whole democratic deficit that I think the soon-to-be Prime Minister referred to in wanting to empower these committees, the standing committee on aboriginal affairs, to at least be the watchdog of progress.

The Chair: Mr. Martin, thank you.

Mr. Hubbard.

Mr. Charles Hubbard: Sorry, Mr. Chair, but I do have to reply to some of the statements the honourable member just made. He refers to a question that was posed in the House today. In terms of our Prime Minister, I think we have to recognize that during the years of trying to balance our budget and to bring back some fiscal control of our nation's public finances, the only department that was never cut back during that process was the department we're talking about today. In fact, additional moneys were found for it nearly every year, because there are tremendous needs out there among our first nations communities, and our government has made a strong effort to increase that budget each year.

But if he wants to go back to 1969, I'd refer him to an article that appeared last week in Le Devoir. In response to the discussions on this bill, and reflecting, according to what I read, that newspaper's favourable response in what our group is doing, it pointed out to our nation that the total budget for DIAND was less than $300 million in 1969. This year it's in excess of $7 billion. In answering that question today, the Prime Minister talked about the need for transparency and accountability, and so forth. All of us in this nation, including first nations, want more accountability

Mr. Chair, when we hear the honourable member speaking about other things than the amendment, it causes me to have to answer some of his points. We are spending a lot of time on frivolous amendments and subamendments, and whatever else there are, but I would hope, Mr. Chair, that we could move on and consider these amendments. They are important to all of us, and we want to bring back a good bill to the House at report stage.

Thank you.

The Chair: Thank you, Mr. Hubbard.

Mr. Loubier.

Mr. Maurice Vellacott: I have a point of order, Mr. Chair.

Because there's a vote in the House in about 13 or 14 minutes, I move that we adjourn until five minutes after the vote is taken and resume immediately thereafter.

(Motion agreed to)

¹ (1555)

º (1627)

[Translation]

The Chair: Mr. Loubier.

Mr. Yvan Loubier: Yes, Mr. Chairman. We are finally back.

I listened to the criticisms made earlier about the sub-amendment I moved, and about the arguments I relied on to make my demonstration. One of our Liberal colleagues said that we were wrong to compare Mr. Chrétien's 1969 White Paper to Bill C-7.

But I don't think we were, because as you may recall, Mr. Chrétien's 1969 White Paper, brought forward when he was Minister of Indian Affairs, contained three major recommendations. The first related to the extinguishment of First Nations rights, including those under the many treaties signed from time immemorial, the second recommendation was to make the First Nations municipalities, and the third was to once and for all resolve all their land claims and specific claims.

And when you look at what we're trying to do with Bill C-7, it's clear that that's exactly what we're doing here. Look at the areas where they will be given powers that we were reviewing last Thursday; those are municipal powers. All the criticisms that have been made from the very beginning, not only our own but those of the Assembly of First Nations, legal experts with the Canadian Bar Association, the Quebec Bar and the Aboriginal Bar, focus on exactly the same points: this will lead to extinguishment of the Aboriginal peoples' fundamental rights.

As for specific Aboriginal claims, we are referred to Bill C-6, where the real intent is to put an end to those claims by setting a ceiling of $7 million for each specific claim. I find it quite incredible, in law, that the government should be prejudging the amount of compensation that is owed or the amount of money associated with a specific claim, before the case has been heard or any ruling has been handed down. Indeed, I believe that is unconstitutional and a violation of the common law.

So, as I say, Bill C-7 and part of Bill C-6 bear a strange resemblance to the 1969 White Paper. And the person who was Minister of Indian Affairs then is the current Prime Minister. That's why when we rise in the House and ask him questions about Bill C-7, when we tell him this is an absurd Bill and refer to the 1969 White Paper, he gets extremely upset. He stands up and, rather than answering us, starts hurling insults. He says if we're not able to get other members of the Committee on side, it's because we probably are wrong. Now we didn't have time to tell him that the amendments we are trying to have passed reflect the views of the vast majority of witnesses who appeared before us.

My Liberal colleague also referred to something else. Because I claimed the 1969 White Paper could have a connection with this Bill, he pulled out some numbers. in 1969, the Department of Indian and Northern Affairs budget was $3 billion, whereas now, it's $7 billion.

But one may wonder: if the budget has almost doubled in 34 years, where did all that money go? In terms of how the situation has evolved on the reserves, among First Nations, both economically and socially, it is clear that there has not been much improvement there. So where did all that money go? Was that money used to fight the First Nations, because the First Nations wanted to assert their rights, and had documented as never before, in the last 30 years, the many treaties signed from time immemorial between themselves and the then Crown? Is that why the Indian Affairs budget rose from $3 billion to $7 billion?

An increase like that doesn't mean anything, because we don't know where that money is going. Is the money being used to hire more co-managers, for example, who are being paid $60,000 to act as part time co-managers on a reserve? If they handle five or six reserves at a time, you have to admit that's a darn good annual income for these co-managers. Is that what most of the budget increase is being used for?

º (1630)

Personally, I attribute this to the fact that from the very beginning, the Minister responsible, the Prime Minister, and now government Members, have been making the most outrageous statements about this Bill, just to be able to sell it. And yet those statements do not stand up to scrutiny. I am stunned to see that someone as serious as a Parliamentary Secretary could present us with such a weak analysis that is so full of holes. That analysis has not convinced anyone, except perhaps a few colleagues.

Let's come back to what our focus is in Bill C-7. Right from the outset, we have violently criticized some aspects of the Bill because they don't respect the true status of the First Nations. And yet the government has the nerve to try and convince them that it has only their best interests in mind and that the reason they introduced Bill C-7 is to improve their lot. Even the Minister responsible is making absurd statements, including that this Bill will replace the Indian Act. That's wrong; that is utterly untrue.

With this Bill, we haven't even begun to improve the lot of the Aboriginal communities in Canada. We persist in looking at useless details that could even be harmful to the First Nations, because of their lack of clarity and a conflict between the wording of various clauses in Bill C-7 and Acts of Parliament. We are even going against the Constitution and the fundamental rights of Aboriginal nations.

We haven't even begun to improve the lot of the Aboriginal nations and yet a dispute is already in the making; they have already paved the way for endless conflicts with the First Nations. And yet we see them presenting and examining the different clauses of this Bill as though that were not the case at all.

In my opinion, because this Bill was sent to Committee after first reading, when we table our report, we could in fact say to the House of Commons that we have not yet taken an official position on the principles set out in this Bill. We could write a report saying that we held consultations and read the briefs that were tabled with the Committee, that this Bill has been categorically rejected by the people most directly affected by it--members of the First Nations--and that Parliament should not dispose of this Bill. It should set it aside, stop examining it, move on to something else and start the process all over again.

Indeed, that is what the future Prime Minister wants to do. According to him, even if the parliamentary calendar works in such a way that the Bill does in fact pass, it cannot be implemented. Just think about that for a second or two: the First Nations are being asked to work on governance over a two-year period. But by November or December, Mr. Martin will be in charge of the government. Do you really think that between now and then, the First Nations are going to start that work and try to abide by the provisions of Bill C-7? Have you gone completely over the top, as they say?

The First Nations won't do anything at all. They'll wait for Mr. Martin to become Leader of the Liberal Party and Prime Minister of Canada. Put yourselves in their position. They have nothing whatsoever to do with this Bill and would immediately want to burn it in effigy, because it is a perfect example of what should not be done. It is a perfect representation of the kind of thing that should not be put on the table when attempting to build a new foundation for the relationship between the Aboriginal nations and the federal government.

Do you really think that before Mr. Chrétien leaves office and is replaced by Mr. Martin, Aboriginal nations will begin the process of acting on this bill, the implementation of which the future Prime Minister is not prepared to preside over? You really have to be incredibly naive to think that!

º (1635)

We look like a bunch of blithering idiots in wanting to continue clause-by-clause consideration of this Bill, when the entire political context has just changed. We are not dealing with theory or hypotheses here. As Bernard Derome says on election nights, it seems to me that if the current trend continues, Paul Martin will soon be Prime Minister of Canada.

[English]

The Chair: Thank you, Mr. Loubier.

We'll go to a recorded vote on the subamendment to NDP-42.

(Subamendment negatived: nays 10; yeas 1)

The Chair: Now we'll go back to amendment NDP-42, Mr. Martin, for closing remarks.

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

I'm disappointed the committee didn't see fit to allow the subamendment, because I think when it comes time to support my amendment, the vote would be even more meaningful if they also supported Mr. Loubier's subamendment in the same context. We will have an opportunity to pass my amendment in a couple of moments, but it would have been even more beneficial if we could have incorporated the important elements Mr. Loubier sought to introduce to include this committee and the whole participation.

There has to be some neutral forum, we believe, in light of the conflicts that may arise in terms of jurisdiction or law-making powers without a secretariat or body that will govern these things--not unlike the way Privy Council looks at things relating to federal-provincial negotiations, or, if we are going to have a more active role with municipalities now that we find the cities of Toronto, Vancouver, Montreal, and Winnipeg all interested in dealing directly with the federal government, with more capacity and a more tripartite approach. We're going to have to have a tripartite approach to this new level of government that is being contemplated--which exists already, but we're failing to recognize--as it pertains to first nations.

One of the things we're failing to take into consideration is the important work that was done in 1983, 20 years ago, on Indian self-governance in Canada--the report of the special subcommittee, the Penner-Jamieson report. It's just galling that 20 years later, almost to the day, we fail to incorporate the recommendations made then, which could have had us in a position much farther along on the road to granting or achieving some semblance of satisfaction on these many issues.

The one comment that jumps out at me from the Penner-Jamieson report is:

The Committee does not support amending the Indian Act as a route to self-government. The antiquated policy basis and structure of the Indian Act make it completely unacceptable as a blueprint for the future

Well, there's a cautionary note if I've ever heard one, written 20 years ago after a broad comprehensive study--probably the second most comprehensive review of aboriginal affairs ever undertaken, next to the Royal Commission on Aboriginal Peoples.

It was galling for me to hear the minister say the consultation surrounding the First Nations Governance Act was the most comprehensive analysis or consultation ever undertaken. We know that to be completely false.

Now, in the Penner-Jamieson report the committee said it rejects as well the department's band government proposal. Although there had been years of consultation, there was no general agreement of Indian representatives, and the proposal finally emerged from a unilateral government action. In other words, at that time, what was being contemplated was individual bands as governments rather than the nation-to-nation concept we're constantly reminded of by the many presenters.

The committee at that time recommended the federal government commit itself to constitutional entrenchment of self-government as soon as possible. That came about happily in the repatriation of the Constitution. But the committee recommended the federal government and designated representatives of Indian first nations jointly appoint and fund an independent secretariat to provide a neutral forum for conducting negotiations between them.

Now, I think this is the logic Mr. Loubier was bringing to the debate in making reference to this standing committee. In the absence of an independent secretariat put in place...this is an oversight dating back to 1983. I suppose there was a cost factor associated with the structure of an independent secretariat to provide a neutral forum for conducting negotiations regarding self-governance.

º (1640)

I remind the committee of the cost factor associated with doing nothing, which is what has happened in the last 20 years--the total aggregate amount of money wasted--and the social costs associated with doing nothing, of leaving the situations of poverty, poor health, poor housing, and compounding social...all the predictable consequences of chronic, long-term poverty, either on reserves or as they manifest themselves in the inner cities, where we find first nations people completely marginalized from the mainstream economy--all the predictable costs associated with that.

The recommendation was clear. In 1983 the wisdom of the Penner-Jamieson report, which was a committee...you could see the recipe for success even in the structure of that committee. They took the House of Commons standing committee representatives, but they also included representatives from first nations to work with this committee.

It was interesting to note the scope of this study. I think it's worthwhile making note of how comprehensive an analysis this was. In the province of Manitoba alone they held a number of meetings and heard from...I won't go through them all, because I don't think it's fair to everybody, but ironically, you heard from some of the same people.

One of the people we heard from at that time is Mr. Murray Sinclair. Well, now he's Judge Murray Sinclair, I'm proud to say--an aboriginal member of the Manitoba bench. We heard from Mr. Ovid Mercredi, who went on to become the leader of the Assembly of First Nations. There was Chief Jim Bear, who was at that time the chief of the Brokenhead reserve. He was here just the other day. He went on to become the leader of the Aboriginal Council of Winnipeg. At his own expense he came here as an individual to observe these proceedings. Mr. Ken Young made representation. Ken Young is now the vice-chief, Manitoba region, of the Assembly of First Nations.

They consulted a great many people. The head of the association of tribal councils of Manitoba at that time was Chief Ernie Daniels.The people from Manitoba would recognize that name. There was Chief Joe Guy Wood, from St. Theresa.

I could go on and on in terms of the people. There was Mr. Larry Amos, who I sat with on a number of committees in the inner city of Winnipeg. These people participated in 1983 in dealing with these very same issues.

After extensive consultation right across the country--those were only some of the Manitoba presenters I was making reference to--after years of complex analysis, they came up with recommendations associated with these very issues we're dealing with today. Starting from the basic premise, under “Conclusions and Recommendations”, the very starting point was “The Committee does not support amending the Indian Act as a route to self-government.” They cautioned future parliamentarians on that issue, because the antiquated policy basis and structure of the Indian Act make it completely unacceptable as a blueprint for the future.

It was that same logic that cautioned us to not have people from the Department of Indian Affairs involved with amending the Indian Act or dealing with self-governance because their job for the last many years has been administering the former Indian Act, and there is a clear bias and conflict associated with them having the active role in drafting this legislation and putting these issues forward.

Now, when I raised the costs associated with an independent secretariat that could have been established in 1983 and certainly would have moved us closer to the ultimate goals stated by many of the presenters here, the cost associated with this First Nations Governance Act is $550 million. It's $550 million taken out of the A-base budget of DIAND, money that would have gone into housing, fresh water, health, education, social welfare--any of the issues that have been brought to our attention, which some of us are acutely aware of as fundamental problems.

º (1645)

The more I read this particular report...I wish I'd had it in my hands years ago, frankly, because not being aware of the good work that was done in 1983, I guess it was eclipsed by 1995--

The Chair: Thank you, Mr. Martin.

We'll go directly to the vote, a recorded vote on amendment NDP-42, on page 144.

(Amendment negatived: nays 9; yeas 2)

The Chair: We'll now go to amendment NDP-43, on page 145.

Mr. Martin.

Mr. Pat Martin: Mr. Chairman, we're interested in trying to amend clause 17. For that reason we've submitted a series of amendments to clause 17 to try to address some of the issues brought to our attention by many presenters who found fault with clause 17 in a variety of areas.

I note the unwillingness of committee members to allow any amendments through this entire process. It contradicts not only what the minister told us when this bill was first given to the committee after first reading, but it flies in the face of what the minister told the general public not an hour ago in question period when he implied again that this committee, at first reading, will be able to make substantial amendments to the bill and people will have an active role in drafting the bill.

What a bunch of baloney, because all the Liberal members are here for is to rubber stamp this bill and see it through this process unamended to achieve the goals of the minister and the department officials, and not to entertain or give serious accommodation to any--any--of the proposals brought forward by the hundreds of presenters who came before this committee as witnesses.

It's abundantly clear that this is becoming an endurance contest or a test of wills that the House leader for the Liberal Party won't entertain any intelligent level of dialogue to try to discuss how we might deal with this impasse that we have at this committee. They're simply ramming this through, hoping the opposition to the bill will collapse.

Simply, “might is right”, because the Liberal Party has more MPs that they can substitute here as MPs drop from exhaustion as we get to midnight and 2 a.m. and 4 a.m. They'll be able to bring in substitutes to continue this ridiculous nonsense, in spite of all the input to the contrary, and all the legitimate input from first nations who have brought their issues to the attention of committee members and seek to have this bill amended in substantial ways.

It seems there is a complete unwillingness to amend this bill in any way, so I'm again voicing our concern, and we're very disappointed that it seems to be that the government is bound and determined to see this bill through in spite of the very real concerns brought to our attention, and in spite of all the very legitimate arguments that are contrary to many aspects of this bill.

On clause 17, which we're still seeking to amend, I propose then, given that the government has rejected the idea that we should have a balance in light of any impasse or conflict that may come up dealing with the jurisdiction of bands' council laws versus regulations or laws made by Parliament...our suggestion was that in the event of a conflict, a conflict resolution process be put in place whereby these items could be dealt with in a reasonable manner and that the conflict resolution process would be negotiated between the band and the minister so the two parties could stipulate themselves to some set of rules and then resolve their differences.

You've rejected that idea. We're still trying to get satisfaction. We're still trying to get the committee to accept that there will be times when there are good, legitimate reasons when a difference arises that the ruling should go in favour of the band and council. This proposal that we're putting forth now, then--in the absence of the other parties being reasonable about this. This amendment we're going to put forward here says in the event of this kind of impasse, the law made under this section prevails to the extent of the conflict.

So in the event of a conflict between laws passed by band and council and laws or other regulations passed by Parliament, the laws passed in the areas of their jurisdiction by the band and council shall prevail and have primacy in that situation.

º (1650)

It seems only reasonable that if we're going to acknowledge the inherent right to self-determination and self-government, if we're recognizing and acknowledging that right, then the laws made pursuant to those rights to govern themselves would be acknowledged and recognized even if they did in fact run afoul of laws made by Parliament or by another level of government. So we are interested in correcting the inaccuracies by challenging some of the more offensive language in Bill C-7 with its polar opposite.

We tried being reasonable by putting forth a compromise position. We didn't believe, in the case of an impasse, the game should always go to the federal government. We believe it should be a more balanced approach. But that was rejected. The balanced approach was rejected by this committee. They wouldn't allow that. Well, if you don't like the balanced approach, then we'll claim the polar opposite approach to what's proposed in Bill C-7.

We're interested in providing the public or any interested party who may be following these proceedings, or even with a vested interest in these proceedings, with the real picture of what's going on here and trying to get past the government's own $1.3 million propaganda machine, the budget they've reserved in the cabinet document for promotion, for PR, the very well-funded, well-financed communications strategy that the government has put in place, including their bogus website, which makes claims of support that don't exist. So we're interested in describing wherever possible the contrast between what the minister claims and what the truth of the situation is.

Even the Prime Minister today was misleading in his response when he said Bill C-7 will replace the outdated and archaic Indian Act. Well, that's simply not true either, and anybody who may have just tuned into this process would be misled by that answer. So it's up to us to try to explain the real impact of many of these changes.

When the minister says, for instance, that Bill C-7 does not turn first nations into municipalities or threaten reserve lands, and it does not replace the Indian Act but modernizes elements of it for the 21st century world--his quote--the truth is, legal experts say it's even worse, that first nations are not recognized as governments by this act and that powers are only delegated similar to municipalities, and it is impossible to modernize the colonial Indian Act, which has no place in the 21st century world. So it's good to view the minister's quotes and then analyse what we view that to really mean.

So when the fear about municipalities is that powers are delegated similar to the way powers are delegated to municipalities, and when the minister claims that “Governments in Canada create mechanisms for good governance and accountability” and “These are built on the principles and practices of representative democracy shared by Canadians”, the truth of what the minister is saying is that Indian Affairs....

Well, the truth is, Indian Affairs does not recognize or treat first nations as governments, and Bill C-7 treats first nations as children and continues to perpetuate the paternalistic approach of the Indian Act and treat first nations as wards, if you will.

Most first nations, we should point out, already have superior levels of democracy and accountability. In fact, the actual practice, as we've pointed out before, and the experience is that accountability and transparency are not the top-of-mind issues that the government is purporting them to be.

Paraphrasing from the minister again, he says that under the Indian Act, bands were not provided with the same tools for community governance. The truth is, first nations do not need government to provide them with any lessons in democracy.

I have with me, frankly, examples of historical governance structures that maybe later in the evening we'll be able to explore, but no legislation is required to provide these tools of governance when these governance structures exist and have existed for thousands of years.

º (1655)

Mr. Chairman, I intend to share some of these conflicting messages with you as the evening unfolds, but we should be reminded that these arguments are all abstract.

The Chair: Thank you, Mr. Martin.

Mr. Hubbard.

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

We're still dealing with clause 17. In listening to the honourable member, he questions why his amendments aren't acceptable. Nearly three hours ago I asked him, when he had another amendment to completely delete subclause 17(2), which spoke in terms of which act or law would be the one taking precedence, and he didn't answer me at that time. In fact, two amendments later he's back to the same subclause, and he's now stating that the band law should prevail over an act of Parliament. I'm not sure if that's the position of the member or if that's the position of his party, but in Canada, generally, most of us accept that an act of Parliament is the main legislative body for the entire country.

It's mystifying to me why he continues to persist in bringing frivolous amendments before this committee and wanting to talk each time for the full 10 minutes, not only making the amendment but also trying to close the amendment before it goes to a vote. Maybe he has a good purpose in doing that. I'm not sure what it is.

Sometimes his seatmate refers to him becoming a Prime Minister of this country--“Mr. Martin”, he says. I don't know which Mr. Martin he's talking about, but I assume it is Pat Martin. It's going to be a long time, I think, before any member of that party, with the behaviour they've shown in the last few weeks, would ever think of becoming Prime Minister of Canada.

So I think we have to put this thing under some degree of closure and attempt to proceed with these amendments, but I hope he would withdraw some of these frivolous amendments that contradict themselves and really don't show any true response in terms of what the Parliament of Canada stands for.

With that, I will go back to the other side.

» (1700)

The Chair: Thank you, Mr. Hubbard.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: The Liberal colleague who spoke before me should be logical with himself, because there is a slight problem of consistency here. My colleague, Pat Martin, talked about deleting a clause earlier, but the other Martin, Paul Martin, who will soon be Prime Minister of Canada, has talked about scrapping the Bill completely, throwing it in the garbage, and I think that he is behaving responsibly by doing that.

He is behaving responsibly in so doing, and you should pay close attention to that, because in about eight months from now, the regime is going to undergo a complete change. We won't be talking about the same things anymore, or in the same way, and in my view, as we discuss rights, freedom, charters, the rights of the Aboriginal peoples under their ancestral treaties, and the inherent right of self-government, we have to remember that those rights are enshrined in the Constitution. Self-government per se is not, but the right of self-government and the goals behind it are, and that is the legacy of someone you probably know, by the name of Mr. Trudeau. He is the one who gave us a Charter, a Constitution which recognizes, in Sections 25 and 35, the Aboriginal peoples' right of self-determination, the inherent right of self-government, and the ancestral rights protected under the Canadian Charter of Rights and Freedoms.

So, we have to be careful here, because you cannot claim to be a Liberal and represent a long-standing tradition of openness, and at the same time, show yourself to be close-minded and prepared to completely scrap Mr. Trudeau's legacy.

For the last little while, people have been saying that Mr. Martin has been inconsistent in what he said. But Mr. Martin has been extremely consistent, and I strongly support what he said. Since we hit a brick wall with every amendment we moved, including this one, we should already expect that whatever argument we make, the Liberal majority will reject it. So we have to expect that and try and convince you in some other way, with a different kind of argument. But the fact is that we shouldn't be focusing solely on words and sentences, on the language; it's important for you to understand that we are trying to demonstrate that it isn't possible, in clause 17, to recognize a third order of government, and at the same time say that the ability of that third order of government to make laws is so constrained that ultimately, that government will not be able to make any decisions whatsoever. That is totally illogical.

There is a difference between saying that in the event of a conflict, federal Acts of Parliament or concomitant laws will prevail and take precedence over Aboriginal laws, and using a different kind of language. For example, you could have said that in the event of a conflict, an independent organization the members of which would be appointed equally by the Aboriginal nations and the federal government would review the problem, consider the solutions and determine whether the conflict is the fault of the federal government, for not properly adjusting its own laws, or whether the fault lies with the First Nations' legislation.

It is quite possible that in most cases, considering that the inherent right of self-government and Aboriginal and treaty rights have been affirmed in court rulings many times, the Supreme Court of Canada would say that the First Nations are right, because the First Nations have an inherent right of self-government, because they can make their own laws and their right to do has been recognized, and that it is therefore up to the federal government to make the appropriate adjustments. It is quite possible it would come to that.

So, what is the rationale for prejudging the situation, in this clause of the Bill, by saying that in the event of a conflict between legislation passed by an Aboriginal government and federal Acts of Parliament, the federal government is automatically right?

» (1705)

Let's think back to those age-old Aboriginal treaties. We were talking about wampum earlier, and about a birch bark canoe and a boat with White Men in it travelling side by side along the same river. Does that incredible symbol of harmony between two nations, that relate to each other as equals, not mean, if we refer to wampum, that the Aboriginal government is an independent government that can exercise any and all the rights it deems appropriate with respect to making laws, and that it is the federal government which is in error? Over the 130 years that the Indian Act was enforced, the federal government believed there was no such pact, that no treaty had even been signed with the First Nations when the Europeans arrived, and that it had been agreed by both parties back then that the Aboriginal nations would allow themselves to be controlled.

That is the reflex that has developed. Indeed, the Special Committee in 1983 and the Erasmus-Dussault Royal Commission on Aboriginal Peoples clearly identified that problem with federal lawmakers, who have always believed they could do whatever they liked in terms of exacting certain obligations from the First Nations, whereas when you see the course history was taking initially, it is clear that that attitude is completely the reverse of what is needed for the federal government and the First Nations to forge a new relationship.

It seems to me that you don't need a particularly high IQ to understand that wampum, which is truly an extraordinarily powerful symbol, tells us that no nation can take control over another right from the beginning, and that we in fact signed a pact, a treaty or treaties with a handshake, as we would do nowadays, for better economic contracts, for example. This is a treaty that was signed by parties who were equals, where the others--that is, the First Nations, when the Europeans arrived--agreed to lend part of their land to the original Europeans for the purposes of hunting, fishing and trapping. The First Nations chiefs were then--and still are now--peaceful people with an open mind who really wanted to establish harmonious relations with the newcomers. They ceded none of the powers or prerogatives that go hand in hand with their inherent right of self-government, a right granted them by the Creator, and that He alone can remove or uphold.

To me the situation is clear. It is easy to understand these concepts, particularly when they are illustrated in that way, with the two rows of wampum. One could not ask for a more obvious demonstration of the fact that if we are to take up our relationship with the Aboriginal peoples where we left them when the Europeans arrived, before the Indian Act, at a time when those relations were harmonious, we have to start from scratch and start to re-apply the fundamental principles that guided the conclusion of those treaties at the time.

The symbol of the wampum is a pure expression of what should constitute the foundation of our new relationship with the First Nations. Nothing about this is difficult to understand; the essence of it is summed up in two paragraphs. I realize that for some, reading two paragraphs can be difficult, but when those two paragraphs are as significant and fraught with meaning for what must underlie our relations with the First Nations, it seems to me that is not asking too much of us as lawmakers. We have to grasp the full meaning of this principle, which is in fact an extremely interesting one, and show us how to view our future relations.

This Bill is not acceptable. We have tried everything to amend it. We have tried everything in our power, and have worked hard in the process. Don't say we haven't work hard; we have introduced about 150 amendments. We have worked very hard to try and improve something that could not be improved.

» (1710)

Finally, given that you have rejected out of hand, without even giving a moment's thought, pretty well every substantive amendment we have introduced, to try and make ever so slight improvements to this Bill in an attempt to avoid disaster, well, it simply has not been possible to avoid disaster.

[English]

The Chair: Thank you, Mr. Loubier.

Closing remarks, Mr. Martin.

Mr. Pat Martin: Mr. Chairman, the parliamentary secretary, when he was criticizing our amendments, even accused myself and my party of putting forward frivolous amendments. I assure you that's not the case.

I don't believe any of these amendments would have made it this far, Mr. Chairman, if they were deemed to be frivolous. Frivolous amendments I view as deleting the word “the” or changing the word “the” to “this”. Those are the kinds of nuisance amendments that have been used in the past in some other committees as a way to create an obstacle to the bill going forward.

That's not the case in this amendment, and I resent any idea that the language in this amendment could be considered frivolous or that it's an absurd notion to say that in the event of a jurisdictional conflict between laws made by the band council and laws made by Parliament, the laws made under this clause prevail to the extent of the conflict.

Why is that such an absurd notion? It's no more absurd to say that in the event of that kind of conflict, the rules made by the government shall always prevail, or even those made by Parliament--we're only talking in the context of those narrow items as contemplated in clause 17. If we're talking about the preservation of the culture and the language of the band in paragraph (c), I think it's appropriate that the laws passed by the council of a band to do with the preservation of culture and the language of the band should have primacy over any other regulation dealing with language, etc., passed by Parliament.

If we're going to respect this level of government, then we have to respect its jurisdiction to make rules associated with issues that go beyond clause 17--at least that's what I would argue. But clause 17 as going through clearly is very narrow on the issues that a band or a council of a band may make laws in relation to.

Another example is, for instance, the membership and citizenship aspects contemplated in clause 17. If there are laws made by the council of a band pertaining to membership and citizenship, or even “the residence of members of a band and other persons on the band's reserve”, then it should be the council of the band that has the final and ultimate say in these situations. I've tried to explain--and I used some of my time earlier--what complex issues arise when we're dealing with membership and citizenship.

I think it's useful for us to review some of this so that we can get our minds around the complexity of these issues and to realize that Parliament is not the appropriate level of government to deal with some of these issues, because, frankly, the knowledge isn't there, the experience isn't there, the expertise is not there. It's certainly not around this table--and I don't say that to be critical of any member of Parliament here.

How many people here could really outline even what it takes to be registered on a band list? Now, the first category a status person may have is category 6(1)(a), “registered or entitled to be registered...prior to April 17, 1985.” But there's another way to be eligible--6(1)(b), members of groups who are declared to be new bands by the governor in council. As well, there's 6(1)(c), women who lost status by marrying non-Indian men. Those are the women who can be replaced under Bill C-31. And 6(1)(c) also extends status to those who were enfranchised because their mother married a non-Indian prior to April 17, 1985.

It's funny, the Government made the commitment at the time Bill C-31 was introduced that if the membership lists rose there would be no financial inconvenience to the band. Well, the corresponding money never did come through and band membership lists did grow without the corresponding increase in dollars to provide services.

» (1715)

Category 6(1)(c) also omitted or removed a person from the Indian register because their father was a non-Indian. Under 6(1)(c), a person could be omitted or deleted from the Indian register because his or her mother and father's mother were non-Indian women who gained Indian status through marriage.

I hope people are following this because it gets more complex. Under 6(1)(d), a person can be registered who was voluntarily enfranchised through application. In 6(1)(e), a person could be registered who, before 1951, was automatically removed from band membership because of continuous residence outside Canada for five years without the written consent of the Superintendent General of Indian Affairs. That person could now be reregistered and reapply.

Before 1920, a person was automatically disenfranchised because they acquired university degrees or became qualified to practise a profession--law, medicine, or religion. A person was disenfranchised for getting a university degree. It's almost as absurd as a lawyer being disbarred for providing legal services to an Indian.

In 6(1)(f), persons, both of whose parents are registered, are entitled to be registered under any part of section 6. Subsection 6(2) persons may be registered who have one parent who has registered or is entitled to be registered under any part of subsection 6(1).

I don't know who could follow these things. I don't think anybody around this table could--other than perhaps our technical advisers here who live with this quagmire. To quote Paul Martin, the whole Indian Act and related aspects of membership and citizenship is a quagmire.

My point is that the appropriate level of government to make a determination, the appropriate people who can deal with it and have expertise in these areas, given that there may be a conflict associated with an aspect of clause 17 if it runs into conflict with other acts of Parliament or regulation, is the band and council. Those bylaws should have primacy and should prevail, especially within the narrow scope of the items outlined in subclause 17(1).

This is not a frivolous amendment. This is a very serious amendment that was brought to our attention and that we faithfully try to represent here on behalf of the many first nations who feel entirely shut out of this process, on behalf of the many aboriginal people who wish they could have some input and argue these issues around this table. That would be the appropriate thing to do.

If we have some disagreement as to how this clause should read, we should be taking this issue to first nations and asking them what they think, because this bill applies to them; ask what their views and opinions on it are. People have made it clear in the submissions they made to the committee.

We only have to look to the many presenters who commented on these issues who said that the current conflict of law provisions that grant universal supremacy to federal laws and regulations is inconsistent with the recognition of self-government rights and fails to give adequate weight to the central importance of the areas in which these band laws are to operate. That was one of the opinions we highlighted and took direction from in seeking to amend subclause 17(2).

I know the parliamentary secretary is losing patience, I suppose, and becoming frustrated with this process. Well, we're frustrated too by the intransigence shown by the Liberal members of the committee and their complete unwillingness to entertain serious amendments. They to try to reject them out of hand as being frivolous. There's nothing frivolous about our effort to have the primacy of laws, bylaws, and regulations of recognized self-governing first nations when there is a conflict with other acts of Parliament, etc.

This actually expands the government's interference with a first nation's right to self-governance in that under the current Indian Act, if there's a conflict between a band bylaw and the Indian Act, the Indian Act has primacy. That's the current situation. But this now expands it so that if there's a conflict between a band bylaw and any other regulation anywhere, that act of Parliament regulation has primacy, which actually diminishes the power of first nations even further than the current status quo.

» (1720)

It's the opposite of acknowledging the right to self-governance; it's going 180 degrees in the wrong direction. And in fact only my amendment, NDP-43, would actually turn this initiative around and point it in the direction the minister claimed it was going.

The Chair: Thank you, Mr. Martin. We'll go directly to the vote.

Mr. Pat Martin: I ask for a recorded vote.

The Chair: We will have a recorded vote on NDP-43, page 145.

(Amendment negatived: nays 8; yeas 2)

The Chair: Now we move to amendment G-9, page 146.

Mr. Hubbard.

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

I think I should probably read all of it because it is of significance. It further enables the greater authority of first nations under clause 17 and under the bill in principle.

We are suggesting that after line 5 on page 13, under “Disposition of timber”, subclause (3) should read as follows:

Notwithstanding subsection (2), while a band law in relation to the disposition of timber from reserve lands is in force, regulations respecting the cutting of timber made under section 57 of the Indian Act do not apply in respect of those lands.

Under “Disposition of resources”, subclause (4) should read as follows:

Notwithstanding subsection (2), while a band law is in force that relates to the disposition from reserve lands of soil, sand, gravel, clay, marl, peat, timber, mushrooms, plants or plant products, subsection 58(4) of the Indian Act does not apply in respect of their disposition from those lands.

Under “Removal of resources”, subclause (5) should read as follows:

Notwithstanding subsection (2), while a band law is in force that relates to the removal from reserve lands of a resource referred to in section 93 of the Indian Act, that section does not apply in respect of the removal from those lands or its possession.

Under “Trespassing”, subclause (6) should read as follows:

Notwithstanding subsection (2), while a band law is in force that relates to trespassing on the band's reserve, section 30 in paragraph 31(1)(c) of the Indian Act do not apply in respect of that reserve.

And very significantly, under “Moneys derived from resources”, subclause (7) should read as follows:

Moneys derived from the disposition under a band law of a resource referred to in subsection (4) are not Indian moneys for the purposes of the Indian Act, or public money for the purposes of the Financial Administration Act.

These are clearly outlining.... Perhaps we can ask our witnesses, who have had a quiet time recently, to speak further in terms of this very significant amendment we're bringing in.

Mr. Warren Johnson: The series of sections to be added under this amendment all provide an exception to subclause 17(2), which is the subclause relating to conflicts with other laws that has been the subject of previous discussions.

The issue here is that, in the ideal state, I think it would have been desirable to remove all of the discretionary regulation-making provisions of the Indian Act, which might be seen as an intrusion with respect to the authorities of the minister or the governor in council in these areas of management. The difficulty is that to do so would have created a legislative or regulatory vacuum in the absence of first nations passing their own laws under this section of the act.

This amendment attempts to achieve the same result by specifically exempting the first nation from those regulations, despite subclause 17(2), whenever they pass their own laws in the same areas, with respect to timber in subclause 17(3), natural resources in 17(4) and (5), and trespass in 17(6).

Amended subclause 17(7) makes a different point. You'll notice it doesn't begin with “Notwithstanding subsection (2)”. The issue here is those resources defined in the earlier sections have in fact been defined as comprising Indian moneys that have to be collected by the government and held and managed by the government in the Consolidated Revenue Fund.

That clearly is not appropriate when the first nation is managing its own dispositions in those areas; therefore, this amendment is to clarify that the funds derived from band operations in those areas would not comprise Indian moneys and wouldn't have to be collected by the federal government and held and managed out of the Consolidated Revenue Fund.

» (1725)

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

The Chair: Does anyone else wish to comment?

Closing remarks, Mr. Hubbard?

Mr. Pat Martin: We're both waiting to be recognized.

The Chair: Indicate to me that you wish to be recognized. I'm not a mind reader.

Mr. Loubier, you have the floor.

[Translation]

Mr. Yvan Loubier: I would like to ask Mr. Johnson some questions about this amendment.

I would like to know what the current situation is with respect to the disposition of timber after the cutting of timber on reserve lands? What is the procedure for managing the harvesting of timber or resources such as mushrooms, which are referred to in this amendment? How are we to know how to view this amendment? And how does it benefit the First Nations?

[English]

Mr. Warren Johnson: I will generalize here. There may be some specific exceptions. The areas covered under and referenced in this amendment are governed now by the Minister of Indian and Northern Affairs recommendation to the governor in council with respect to regulations. The resulting permits and permitting and collection of the revenues is, in many of these areas, if not all of them, done by departmental officials. There is no authority in many of these areas under the Indian Act for first nations to do that themselves.

Since those authorities are provided in clause 17, as per our previous discussions, when first nations then pass their laws in those areas, should they wish to and where they wish to, would no longer be subject to those interventions by regulation. That would be an exception to the conflict of law provisions in subclause 17(2). In that case, the Indian Act regulations referred to would no longer apply to that first nation. Those regulations are found in sections 57, 58, 30, and 31 of the Indian Act.

[Translation]

Mr. Yvan Loubier: Imagine the following situation: an Aboriginal community is claiming a particular piece of land. No agreement has yet been reached with the federal government regarding that claim. In the meantime, a logging company comes along and is given timber rights on lands claimed by the First Nations.

How will these new provisions work? Will the activities of the logging company be suspended until the matter of Indian self-government or the conditions associated with the land that is claimed have been resolved, or are these conditions that only apply on reserves at this time? Would it be possible companies to clear-cut lands claimed by the First Nations, without their having any power to stop them, pending the conclusion of an agreement with the federal government?

» (1730)

[English]

Mr. Warren Johnson: I think there is a simple answer to that question. The Indian Act as well as the First Nations Governance Act apply largely on reserve and specifically with respect to law-making functions. They would not have an impact off reserve in land subject to land claims discussions or negotiations. Those are governed by separate principles of consultation as found in, for example, the Supreme Court rulings in Sparrow and Delgamuukw.

[Translation]

Mr. Yvan Loubier: What I mean, Mr. Johnson, is that if most of the forestry resources are found on the land that is subject to a claim, rather than on current reserve land, how can this in any way help a First Nation with land claims that hopes to one day be able to develop its own resources?

If it is confined to reserve lands, and land claim negotiations with that First Nation have not been concluded, is there something in here somewhere to provide that the First Nation will not be dispossessed of its lands before a self-government agreement can even be reached with respect to a larger land base?

In that connection, I just want to cite the example of the Innu of Mashteuiatsh, or Pointe-Bleue, near Lac-Saint-Jean. They now have a land base that, in terms of surface area, is twice the size of the land they originally had. And, it is the second portion of that enlarged land base that holds the most natural resources.

If 500 specific claims, soon to be 1,000--are not resolved and these provisions affect current reserves, how does this advance the ability of the First Nations to take control of their own resources? Self-government agreements have not been finalized with respect to land bases far larger than what many Aboriginal communities now have, which are essentially small reserves where they have been parked for decades now. That is my fear.

In the case of the Lubicons, for example, some land was ceded that was the subject of a claim. Massive clear-cuts were carried out on those lands. Forestry, oil and gas companies set themselves up there. There was complete devastation of the lands under claim.

Provisions such as this one give people reason to believe that an issue such as the disposition of timber can be satisfactorily resolved. And yet when I think of the way lands claimed by the First Nations have been devastated, I wonder how long we will still have to wait until self-government agreements are reached to expand their land bases, and how these provisions can help as regards the disposition of timber on those lands, for example.

[English]

Mr. Paul Salembier: I can perhaps attempt to answer to that.

The lands subject to land claims that are obviously outside the borders of a reserve are provincial lands and are subject to provincial law. Therefore, the federal government or Parliament has no authority whatsoever to impose laws regarding the use of those lands. It's always open to a provincial government that is in negotiations with a first nation regarding a land claim to establish a moratorium on resource extraction over the lands that are under negotiation. But again, that's something that has to be negotiated with the provincial government, and it cannot be imposed unilaterally by the federal government.

Mr. Warren Johnson: For clarification, I think there are three distinct concepts here that should be borne in mind. We have self-government agreements and negotiations and we have comprehensive claim negotiations--which are often done together but not always--and we have specific claims. I'm not sure, but I think Mr. Loubier's reference was to the comprehensive claims.

As a result of the settlements of specific claims, the reserve land base in Canada is doubling, and significantly more land is under negotiation and being researched. This process will continue. Unless it's with reference to a specific parcel of land, claims on those lands normally involve a cash settlement and the right of the first nation to purchase land, which will then be converted into reserve land. As soon as it is done, this would be applied. But we don't know in advance where the first nation may be interested in purchasing land.

In comprehensive claims, where I think the question you had applies, we are dealing with the traditional area and unresolved title issues, etc., within the first nations. That's where interim arrangements or interim protection agreements are, more often than not, put into place in advance of those agreements coming into force. It's through those negotiations and interim arrangements that the protections and the direct involvement of first nations come from, which my colleague was referencing. But I should point out that those are in comprehensive claims agreements; they're not found, for example, in self-government agreements. For example, if you look at the Nisga'a self-government agreement, you do not find what you are looking for either. It's dealing with governance like the FNGA is. In the Nisga'a claim settlement you will find that elsewhere, not in the self-government agreement.

So there's a distinction in terms of which negotiations and agreements handle which subject matters.

» (1735)

[Translation]

Mr. Yvan Loubier: You say that the agreement with the Nisga'a contains no specific provision regarding disposition of resources on those lands?

[English]

Mr. Warren Johnson: No, not within the self-government agreement as part of the initial settlement, but it would be part of their comprehensive claims agreement. So the interest that I think you're looking for is not normally found in the self-government agreement; it's found in the comprehensive claims agreement. As in the Northwest Territories, for example, comprehensive claims agreements can be done separately from self-government agreements.

The Chair: Thank you.

Mr. Martin.

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

This is a very comprehensive list of additions or qualifiers to what subclause 17(2) really says. Every paragraph the government is seeking to add begins with, “Notwithstanding subsection (2)”, and then introduces....

I noticed very strong language from one of the lawyers--I believe it was Brad Morris, or perhaps it was Kent MacNeil-- who commented that clause 17 had to be amended simply because it is going to be challenged. Because I can't lay my hand on the submission made and don't want to misquote anybody, I won't state the name. But clause 17 certainly did sound an alarm that there was going to be a serious challenge.

Perhaps it's in response to that caution that a number of these things are being qualified. I still have a lot of questions regarding each one of these, and I think it's going to take more than the ten minutes contemplated. The time allocation motion made back in December and passed a few months ago said that interventions would be limited to 10 minutes, with the exception that upon unanimous consent we could deal with a certain clause in more detail. This is one of those clauses that we should be looking at in much more detail. Because of the complexity of what the government is introducing here, I would like time to think about what's proposed in amendment G-9, particularly subclause 17(3), which says that section 57 of the Indian Act will no longer apply in respect to those lands. I would like to compare that subclause with section 57 of the Indian Act and ask questions dealing with the disposition of timber. There are a number of questions that come to mind. So I'm not going to seek unanimous consent for that yet.

My assistant has just found the professor of law who flagged clause 17 specifically. It was Larry Chartrand, a professor in the faculty of law at the University of Ottawa, who said that, “This provision is a violation of Aboriginal rights and Treaty rights”. Therefore, this needs to be amended.

So we're seeing some amendments. I don't know if these amendments will in fact satisfy the caution that Professor Chartrand put forward, but certainly the complexity of clause 17 already warrants more than the 10 minutes that has been allocated per amendment per member. But now that its complexity has been compounded by the government's own amendment, in response to problems with clause 17, it really isn't fair to try to deal with this in the 10 minutes that we're allowed and then to move on to have this rubber stamped again. This is serious stuff here. We're down to the meat and potatoes of the disposition of timber, for instance, and the moneys derived from the disposition under a band law of resources, and the stream that this money will follow. We need to know more about this.

Frankly, I have a hundred questions that I want to ask the advisers regarding subclauses 17(3), (4), (5), (6), and (7). My time will be up before we even get a chance.

Even though I felt this way on other clauses as well, this is the first time I've raised the issue. This is the first time that I've seriously proposed that we consider this clause differently than the others and give as much time to it as necessary. In fact, I'm hoping that the committee will see fit to not put any time limitation on dealing with this particular amendment--the government's own amendment. We want to understand this amendment thoroughly. It may even be important to suggest subamendments to make sure it's in keeping with the presentations we've heard. So I'd be very disappointed if the people on the other side denied us the right to give this amendment the time it deserves, given the complexity of it and clause 17.

» (1740)

In fact, another question comes to mind. I would like to know how amendment G-9 compares with the comprehensive AFN-INAC joint initiative for policy development as it pertains to land and trust services.

I note that under the natural resources chapter of that document they begin by saying in overview that, “Despite Treaty commitments, First Nations have been systematically excluded from natural resource management and harvesting”.

I remind you that this is a joint document, with INAC having a role in drafting it. They go on to say that:

This has removed First Nations from key sectors of the Canadian economy resulting in astoundingly high rates of unemployment and poverty amongst First Nations. The Courts have begun to recognize Aboriginal and Treaty rights to resources but governments have been slow to respond through changes to policy and law. First Nations feel that the management and use of all natural resources, both on reserve and within the traditional territories of First Nations, must be discussed. Discussions must be grounded in the reality of Aboriginal and Treaty rights. Governments must commit to increased access to natural resources for First Nations as key to economic development and ultimately self-government. Access to capital, markets, human resource and institutional capacity must be addressed.

It was in 1999-2000 that this study was done. I'd like to know how accurately the language of these amendments to this clause--which is the only place that we'll be able to deal with this in the bill--reflects the very language of this detailed and comprehensive report by the joint initiative. There are short-term, medium-term, and long-term plans associated with implementing the ideals outlined above--and again, this is just under the natural resources chapter of this comprehensive document. It would be interesting for me to know if the removal of resources referred to in subclause 17(5), as proposed by the government, in any way accurately reflects the discussion paper of the joint initiative. That paper deals a lot with how the Indian Act sets out legal obligations of the Crown to manage timber resources on reserve. It says that:

The Minister or his representative must provide authorization for the removal of timber on-reserve. In 1995-96, stumpage revenues totaled about $8 million from 140 timber permits and licences largely from western Canada.

I'd like to know how subclause 17(3) on the disposition of timber compares with the pages and pages on forestry in this joint initiative.

But we're not going to be able to get to that, or we're not going to be able to address that or do any kind of a comparative analysis of the work that's been done in this field. Is there any correlation whatsoever between Bill C-7, the first opportunity to amend the Indian Act in this regard, and the joint initiative? Or is Bill C-7, as we suspect, more of a wish list from the government side, which does not give enough deference to the input on lands and trust services from the natural resources section of the joint initiative on policy development?

This is a very interesting and comprehensive document. Even though I'm only giving a very sketchy overview, it dealt with oil and gas and fishing and aquaculture. It also provided an overview of the natural resource sectors.

In the context of this debate, if we are serious about dealing with it in a meaningful way, we would have started with R. v. Van der Peet, where the Supreme Court instructed that the interpretation of aboriginal and treaty rights must be “generous and liberal” and that doubts be resolved “in favour of aboriginal peoples”. In other words, when there's doubt in this context, the courts have ruled that the game goes to aboriginal people in the event of any kind of a disagreement. This should have been the context where we started.

» (1745)

In the Guerin decision too, which I know was cited earlier, the Supreme Court clarified the fiduciary principle, saying that the Crown is required to act in regard to first nations in a way that best preserves the honour of the Crown and limits or prevents the exploitation of aboriginal peoples.

The Chair: Thank you, Mr. Martin.

Mr. Hubbard, your closing remarks.

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

I would like to remind the honourable member that all of us have had these amendments for a long period of time, or in excess of three weeks. I know he has indicated that he needs more time, but I'm sure he has already had a lot of input from his researchers. He has a person here with him, and he has more people who are as good as the lady who's with him here.

This bill is definitely an improvement over the present situation in terms of what it will offer to our first nations.

With that, Mr. Chair, I'd request that you ask the question.

The Chair: Are we ready for the vote?

(Amendment agreed to)

The Chair: Mr. Hubbard, on amendment G-9(1), on page 149.

Mr. Charles Hubbard: Mr. Chair, I believe this is the last amendment of clause 17. This change will be added after line 5 on page 13, under “Laws re inspections”. This part of the bill will relate to later sections, which I hope we'll be looking at later today. It will add a clause 17.1:

A band law made under section 16 or section 17 for the regulation of an activity on reserve lands may provide for the inspection by a band enforcement officer of any place on reserve lands in which that activity is carried on.

I will again ask our witnesses to briefly indicate what this signals in terms of the law and how it is enacted.

Mr. Paul Salembier: As Mr. Hubbard indicated, this is part of a suite of amendments dealing with enforcement of band laws on reserve. That suite of amendments provides for inspections of places on reserve where regulated activities are being carried on. For example, if there were a restaurant and a band law regulating health and safety, or the way in which food is stored, in restaurants, that law can provide for a regular inspection of that restaurant facility. That's what this is providing for. It's a new clause 17.1, because it's part of the suite of band law-making powers, and this is the appropriate place to put such a provision.

A regulated activity is often one for which a licence or permit is granted. If there were a restaurant, for example, there might be a licence or a band law developed to provide for licensing of restaurants. Of course, as part of the condition for getting the licence, you would have to agree to inspections of the location where the activity is carried on. The band law may provide for such inspections under this subclause.

» (1750)

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

The Chair: Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: A number of questions come to mind as I look at this amendment and hear Mr. Salembier's explanations.

This comes back to a criticism we made when we addressed clauses 15 and 16, if I'm not mistaken. This is a far cry from Indian self-government and from a third order of government. In terms of what you have just presented, and what you have just given as an example, I don't know whether you have any others like that, but I'd be curious to know whether you do.

You have just said that the First Nations will be able to make laws like municipalities. For example, the issuance of commercial permits in municipalities is a municipal power. Inspection is also an area that falls within municipal jurisdiction.

I heard my Liberal colleague earlier say that we should not draw an analogy to the 1969 White Paper. In 1969, Mr. Chrétien, the then Minister of Indian Affairs, proposed exactly the same thing. If the First Nations were to be given the power to make laws, it would be in areas that are currently within municipal jurisdiction. If that is the third order of government they have in mind, then this is a pretty sorry state of affairs, because that is not what was envisaged, not at all.

What we're talking about, when we refer to self-government for the First Nations, are real governments that can make laws in such areas as environmental protection, for example, or economic development, and that can not only legislate, but develop an Aboriginal education system, for instance. That also includes preserving and promoting the culture and language of the Aboriginal nations. It includes extending those domestic powers to the international arena, because we briefly referred, at one point, to Gérin-Lajoie's famous theory, as he presented it several years ago, that the provinces in particular, who have legislative powers over education, culture, language, and so on, could exercise their domestic powers at the international level which, at that level, would be seen as an extension of their domestic powers.

That is how I see the Aboriginal nations law-making powers. I see them as powers to make laws in real areas of governance that fall within the jurisdiction of a true order of government, a nation recognized as such in the Constitution, in court rulings and by the United Nations. Here the Aboriginal nations are being turned into municipalities, and this is not the direction we were supposed to be taking, not in the least.

The 1983 report of the Special Committee on Indian Self-Government is very clear in that respect. The 1983 report talks about the First Nations exercising powers in such broad areas as transportation, health care, education, the promotion of the Aboriginal nations' cultural concerns, and the power to make laws about the management of soil and sub-soil resources, on lands belonging exclusively to the First Nations, lands that were theirs before we imposed our own views in that regard, when the Europeans first came here. And yet, what we see here is that municipal powers being given to the Aboriginal nations.

On top of that, in clause 17, we have clause 2 that says that if the power a First Nation wants to exercise is in conflict with Acts of Parliament or other laws, then the Act of Parliament or those other laws will prevail.

So we really are a long way from meeting the expectations of First Nations, particularly the expectations created by the Special Joint Committee in 1983 and the Report of the Royal Commission on Aboriginal Peoples. In fact, when we held consultations on Bill C-7 and carefully read the briefs that were submitted to us--at least we in the Opposition did--it became clear that what was in here was not at all what the First Nations wanted us to enshrine in a piece of legislation.

» (1755)

And the fact is, the First Nations got it right. Mr. Matthew Coon Come and the First Nations chiefs we met with told us that they wanted to exercise their true inherent right of self-government and that they weren't expecting the government to try and implement the idea set out in the 1969 White Paper. It looks as though the hands of the clock stopped turning in 1969, and everything that has happened since, during those two periods, has been forgotten.

I suspect the current Prime Minister of wanting to steamroller this through Parliament because he became frustrated, at one point, with his inability to implement the White Paper, which was certainly not unanimous and met with stiff resistance from First Nations' representatives, just as Bill C-7 is meeting with similar resistance today. I find it unbelievable that the government can be so out of touch with how the situation has changed since 1969. It's as though nothing ever happened, when you see how anxious the government is to do battle with the First Nations by introducing a Bill that they deem to be equally unacceptable.

One notes a kind of relentlessness, an obstinate, and even violent, determination on the part of the current Prime Minister to shove Bill C-7 down people's throats because he was frustrated, back in the days when he was Minister of Indian and Northern Affairs, at not being able to do this, since he was only Minister of Indian and Northern Affairs that time, not Prime Minister. Now that he is the big boss and wants to leave a legacy upon his departure from office, he couldn't care less what happens after he is gone and persists in believing that the solution he presented in his 1969 White Paper was the right solution.

So, come hell or high water, and despite the spirit of modernity found in Committee reports such as the one made public in 1983, and of which Ms. Jamieson, Chief of the Six Nations, was a member, despite the Report of the Royal Commission on Aboriginal Peoples, and despite the many court rulings--in spite of all of that, here there is a total disregard for the changes that must form the foundation of our new relationship with the First Nations. It's as though time has stopped with the 1969 White Paper.

Personally, I find it absolutely unbelievable that there could be such a desire to please one man who sees himself as fulfilling a supreme mission, when no one wants his policy and no one, neither in 1969 nor today, is willing to go along with a Bill that simply turns First Nations into municipalities.

Indeed, my Liberal colleagues should be in step with modernity, rather than relying on an analysis that is no longer current and is even racially based--in some respects. This is a racial approach to the problem of relations between the federal government and the First Nations. It is an approach that is not only race-based, but racist, in some respects, because the First Nations are treated with disdain. The government is forcing things on them that they don't want. The powers they would normally have under the inherent right of self-government, powers that are far more extensive than the government is prepared to recognize, are being turned into purely municipal powers.

I have nothing against municipalities conducting health inspections of restaurants, but I do hope that the people sitting around this table have all understood that the First Nations do not aspire to exercise that kind of power. They aspire to exercise the same powers as any other nation whose ambition it is to ensure its continuity as a nation.

So this is very disappointing. When the time comes to examine amendment BQ-34, or even NDP-44, we will probably have an opportunity to discuss the important aspects of self-government and the inherent rights associated with it, in greater depth. And when I hear Mr. Salembier giving these kinds of examples, I really wonder whether…

¼ (1800)

[English]

The Chair: Thank you, Mr. Loubier.

Mr. Martin.

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

I understand that the clerk may be advising that there will be a subsequent renumbering associated with the addition of clause 17.1.

The Chair: Yes, at the end of the debate on amendment G-9(1), I will be calling for two votes. First, I will ask if clause 17 shall carry as amended. That will take care of all of the amendments we have, except amendment G-9(1). Then I will ask you if amendment G-9(1) will carry. That will form a new clause 17.1.

Is it clear to you that it will form a new clause?

Mr. Pat Martin: Yes. That's helpful. Thank you, Mr. Chair. I was somewhat confused that clause 17.1 would be following 17.2, but that explains it. Renumbering is in order.

The comment I have regarding this idea of an enforcement officer being able to enter into any place on reserve lands where that activity is carried on begs the whole question or a number of questions that were raised by a number of presentations regarding the enforcement officer's rights and abilities and contrasting that or weighing that against the collective privacy of band members, etc., and what the powers and authorities of these new band officers really will be in this.

So it's going to be helpful, and I hope we have time to ask the government officials, under the Indian Act, what happens now in a case, for instance, of maybe not inspection so much as, let's say, a complaint of trespassing. What court currently hears the prosecution of a complaint, who handles that prosecution, and who pays for the costs of the action? Under the proposed amendment, who would prosecute the case, where would it be heard, and who pays for the costs of all that?

So in the event an inspection by an enforcement officer or the investigation by an enforcement officer into any complaint results in finding a violation of a band law, it begs the whole question of what is this Bill C-7 doing in terms of the obligations of the band that follow, in terms of prosecution, costs associated with it, who pays for these things.

This came to our attention with one of the presentations we heard. When we were in the Atlantic provinces, Janice Maloney asked the question, who would prosecute and where do you get the funds to prosecute?

This is her quote:

Where do you go from there after the prosecution?

The answer to your question is that even if there is a bylaw enforcement officer there, he or she doesn't have the power to do anything. If you do choose to call the RCMP with respect to certain items that may be a bylaw, let's say with respect to trespassing or something like that, they don't feel that they have the jurisdiction to enter into the internal operations of the band. You can't really depend on them.

There's really nowhere to go. With respect to the new legislation, there still will be nowhere to go.

So in the whole area of enforcement officers' inspections, there's a great deal that needs to be addressed. For instance, if a first nation, under its trespass law, was unsuccessful in removing trespassers from the reserve or they simply stayed put, how do we deal with the fact that under the Indian Act a reserve is land set aside for the exclusive use and benefit of the Indians?

Another question would be, what fiduciary responsibilities does the federal government have with regard to preventing trespass? I suppose we probably would ask the government officials to answer that.

And further, the Royal Proclamation of 1763 itself speaks of trespassing and the obligation of the Crown to keep settlers out of Indian lands. What do the government officials say--or hopefully there's time to ask them what they would say--about the violation of the Royal Proclamation that would occur if this responsibility is now passed back over to first nations to deal with? In other words, it's this duty of enforcing these things passed over to first nations.

When Jim Aldridge, the co-chair of the JMAC committee, appeared before the committee, he wondered whether the act is binding on the federal government and its employees. In his testimony he said:

JMAC's advice in respect of this important question is set out at page 19 of the overview chapter of our report. “Is the legislation binding on the Crown?” is the technically correct way of describing this issue, but in ordinary terms, the simple question is whether the federal and provincial governments and their employees will be required to comply with band laws. Will a Department of Fisheries official have to comply with speed limits on the reserve, or will he or she be immune to them because of Crown immunity? Will governments be able to ignore zoning laws and trespass laws? Will a department be able to run machinery late into the night in contravention of noise bylaws? In other words, do the band's laws apply to officials and servants of the federal and provincial governments?

¼ (1805)

We haven't even explored that issue, even though it was raised and brought to the attention of the committee by the co-chair of the joint ministerial advisory committee.

The reason this becomes a question in federal legislation is section 17 of the Interpretation Act. Of course, everybody spends their time paging through the Interpretation Act, but it's one of the basic rules of governance, the drafting, passage, and enactment of legislation.

Section 17 of the federal Interpretation Act says:

No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty's rights or prerogatives in any manner, except as mentioned or referred to in the enactment.

In other words, the enactment has to expressly provide that it's binding on the Crown in order for the provisions of the act to apply to the federal government's agents and servants.

Now there's a conflict of interest if I've ever heard one in our dealing with the enforcement of bylaws on reserves. We don't even know if these bylaws apply to the Crown or to agents of the Crown, or to federal agents and servants.

That's different from any provincial interpretation acts where the reverse is true, and certainly in British Columbia where the example was used, the Interpretation Act says every enactment is binding on the Crown unless the act says it isn't. So here we have the reverse onus. The federal legislation says no enactment is binding on the Crown unless it says it is. So this is the problem, and that's why I seek to move a subamendment to this subclause 17(1), because there are many questions that need to be answered.

How much time do I have, Mr. Chairman?

The Chair: You have three minutes.

Mr. Pat Martin: Three minutes.

The Chair: Well, your time's up now that you're moving a subamendment.

Mr. Pat Martin: I was going to move the subamendment when I get closer to my 10 minutes.

The Chair: You can't interrupt someone to move an amendment. You have to put an end to your time to move a subamendment.

Mr. Pat Martin: All right. I propose to move a subamendment to amend amendment G-9(1) as follows, as clause 17.2, or whatever numbers the clerk ends up using, that:

A band law made under section 16 or 17 for the regulation of an activity on reserve lands which provides for inspection by a band enforcement officer must be subject to a community-based approval process.

¼ (1810)

The Chair: Do you have that in writing?

Mr. Martin, on your subamendment.

Mr. Pat Martin: Could I hear the subamendment read back by the clerk, please, Mr. Chair? I can't remember it.

The Chair: He wants it read.

[Translation]

He wants it read.

[English]

Mr. Pat Martin: Yes. I'd like to know what it says.

The Chair: He will give you a copy.

Mr. Pat Martin: That's fine.

So the subamendment that we're seeking to add to improve government amendment 9.1 is that all of the above, essentially, must be subject to a community-based approval process. In other words, a band law made under either clause 16 or clause 17 for the regulation of an activity on reserve lands, that provides for the inspection by a band enforcement officer, must be subject to a community-based approval process.

I believe that adds a great deal to the many questions being asked about the appropriateness of enforcement officers. In terms of the questions that were raised earlier regarding the powers of an enforcement officer and the search and seizure provisions, I believe these would be less likely to be onerous, or to be problematic, if any law associated with enforcement had to be subject to the community-based approval process.

This would help to address some of the concerns brought to our attention again by the co-chair of the joint ministerial advisory committee. I think he raised some very important points about the Interpretation Act, and we often ask our technical advisers about this legislation as it pertains to the Interpretation Act. I wonder why the choice was made to treat this particular legislation differently from the many provincial interpretation acts, or to not address the concern I've raised. I'll raise it once more so people understand this.

This becomes a question in federal legislation in section 17 of the Interpretation Act. Section 17 of the federal Interpretation Act says:

No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty's rights or prerogatives in any manner, except as mentioned or referred to in the enactment.

In other words, the enactment has to expressly provide that it's binding on the Crown in order for the provisions of the act to apply to the federal government's agents or servants. So here we have enforcement officers in place on reserves who have certain powers in terms of search and seizure, in terms of inspections of any place on reserve lands where activity is taking place that may pertain to government laws and bylaws, but it doesn't contemplate the enforcement officer perhaps finding it necessary to enforce bylaws as it pertains to agents of the Crown on reserve land, in other words, trespass privileges.

Does this mean that the Crown or agents of the Crown or federal civil servants still have the right to enter reserve property even if the bylaws state that any visitors to the reserve must report in or get permission to enter the reserve territory? It raises a number of questions. And the contrast here is that with many provincial interpretation acts, the inverse is true.

Especially as it pertains to the authorities of enforcement officers on reserve lands, you'd think that something in the bill somewhere would make reference to what happens in that eventuality. It's a likelihood--it's not just a possibility--that enforcement officers will run into this situation in terms of what would happen. For instance, would a first nation be able to prevent the Minister of Indian Affairs, or a regional director, from entering reserve lands without passing through the procedure set out in the band's trespassing law? That raises an interesting question.

If we're acknowledging the sovereignty of an independent, free nation, and we're trying to reduce and diminish the role of the minister and the minister's ability to interfere with the day-to-day operations of the band and reserve, as it pertains to at least the items outlined in clause 16 and clause 17, trespassing being one of them, what are the enforcement officer's limitations?

¼ (1815)

We haven't listed the authority of these enforcement officers, other than elsewhere in this bill to talk about these draconian search and seizure measures, which have to be struck from this bill because of the outrage that this caused, that the enforcement officers have this absolute right to kick down a door and enter into any building they choose. It's like the Brownshirts. You can almost hear the jackboots associated with that type of approach. So surely that's going to be dealt with in this bill.

But we're dealing now with the idea under 17.1, or what's numbered as 17.1, that “a band law made under section 16 or 17 for the regulation of an activity on reserve lands may provide for the inspection”--and I would say the “annual inspection” would have been better, and perhaps that's a subamendment others may want to move--“by a band enforcement officer of any place on reserve lands where that activity is carried on”. My subamendment proposes to change that to “an enforcement officer with the approval of the community in general”. But also I think we should be qualifying this enforcement power of the band enforcement officer, the power of inspections, to say that there has to be some reason for his intrusions--other than an annual inspection, if it is a health issue in a restaurant or whatever--for instance, if the band enforcement officer has evidence that such activity going on may be in violation of one of the band bylaws. If there was reason to believe that activity was going on in that place on the reserve that was in contradiction or violation of the band bylaws, then the enforcement officer would be justified.

But there have to be reasonable grounds for this type of intrusion into otherwise the privacy of anybody living on the reserve, because I presume that these powers apply to not only members of the band but to other residents on the reserve, other people who are maybe non-aboriginal residents on the reserve. So if we read it in that context, let's try to envision an example when the band enforcement officer may provide an inspection of any place on reserve lands in which that activity is carried on. Could this mean that a small business being run out of a building leased from the band as it pertains to, I don't know, again, we could say, for example, a sawmill or timber production? If timber rights and the disposition of timber is contemplated under subclause 17(3), it's not inconceivable that there would be a wood processing operation on the reserve that may not in fact be even run by the first nation. It might be property and materials leased from or acquired from the first nation, and that private enterprise would be in operation on reserve lands. Is this enforcement officer supposed to be able to enter into that place on reserve lands in which activities governed by the bylaws under clauses 16 or 17 are carried on?

Those questions aren't going to be answered in the limited timeframe we have to address these issues. It's simply impossible. So once again people are going to make an uninformed vote to pass substantial changes in the way that first nations have to conduct themselves and substantial changes in the way the Indian Act applies to first nations communities. We just rammed through amendment G-9, which changed in a substantial way the dealings of the Indian Act in subsection 58(4), section 93, subsection 31(1), and section 57. Those were all done in 10 minutes, and I think without any comprehension.

Can anybody here honestly answer me, even if given a bit of time, what change did we just make to section 57 of the Indian Act dealing with the disposition of timber? Does anybody remember? Does anybody know? Does anybody care? People out there care.

¼ (1820)

The Chair: Thank you, Mr. Martin.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: I have a number of questions for Mr. Johnson or Mr. Salembier about this band enforcement officer. Earlier, Mr. Salembier gave the example of an officer doing health inspections. But are there other examples of the kinds of activities these officers would carry? And if so, what would those activities be? We have talked about health inspections, but I would like to know whether there are any other examples that come to mind in terms of defining the duties of an officer for the purposes of enforcing the provisions of Bill C-7. Can you give us any other examples, besides health inspections, Mr. Johnson?

[English]

Mr. Warren Johnson: There are numerous examples, since this would apply to both clauses 16 and 17, that one might think of. We're also talking about additional authorities to aid in the development, application, and enforcement of first nations laws with respect to permits and ticketing schemes.

For example, in timber, which we were just talking about, a permitting scheme developed by the band under this law-making authority might very well involve reforestation limitations on cut, and other things that might be subject to some form of inspection or counting on some regular basis.

There are a variety of areas, one could speculate, in which a first nation may want to use that function, not that they would necessarily want to or need to reproduce all of the inspection functions one finds in federal, provincial, and other local agencies. But any of those could equally apply in a first nations context.

The issue here is to do two things, as I think was originally referenced in the introduction of the original motion by the parliamentary secretary. That's to make clear the distinction between inspection and search issues to help in the series of amendments, which we'll be discussing later before this committee, that help deal with those issues as put forward by witnesses at this committee. That's on the one hand.

On the other hand, it's to make it clear, although it could have been taken as implied in the current version of the act, that in fact a first nation, in developing laws with respect to things that are regulatory in nature in terms of activities on reserve that might very well require inspection, clearly has the authority to do that.

Since that law-making authority in clauses 16 and 17, including this one, are all subject to the codes to be developed by the community, it would appear that the First Nations Governance Act already accomplishes the intent of the subamendment. Depending on the definition of a “community-based approval process”, I think is the terminology.... The term “community-based approval process” is not referenced anywhere else in Bill C-7 as drafted. However, in the references in subclause 6(3) covering the administration of government code, one of the issues the administration of government code is asked to deal with, which is subject to the community process--that section was discussed before the committee--is how laws will be made in the community. Under the public notice you'll notice that the issue of both band members and residents of the reserve, which Mr. Martin was concerned about, is covered here. It says how they will be notified and have an opportunity to input, such that if that meets your criteria, which is not defined in the amendment in terms of a community-based approval process, the laws made under clauses 16 and 17, including the original amendment here, would be subject to a community-based approval process, one involving the operation of a government code called for under clause 6 of Bill C-7.

¼ (1825)

[Translation]

Mr. Yvan Loubier: So, when we talk about a band enforcement officer, we're not necessarily talking about the person now known as the Indian agent. It could be someone appointed by the band, who is also a member of the band.

[English]

Mr. Warren Johnson: That is correct. The “Indian agent” terminology, and one still finds that terminology, and also a similar reference, “superintendent”, often mean the same thing, the specific agent of the Crown or the minister charged with functions under the Indian Act.

This is not that function. This is, again subject to later amendments referred to in the committee, someone who is an employee of the band. They would be subject to the redress mechanism of the band, appointed of the band, and their conduct would be subject to, in the specific case we're talking about here, the inspection regime the band itself sets out in its regulations of activities on reserve where they consider inspections are necessary. The band enforcement officer would be bound by the community law-making, on the one hand, and would not be an Indian agent, if you will, on the other.

[Translation]

Mr. Yvan Loubier: Yes, but the officer would not necessarily be a band member. You said a few minutes ago that it could be someone working under the authorization of the Crown. So, it could be an Indian agent, as is currently the case, just as it could also be a co-manger.

[English]

Mr. Warren Johnson: I don't think I said authorization of the Crown. I think I said authorization of the band. There is no Crown authorization or ministerial authorization involvement in law-making in Bill C-7 at all any more. All of those ministerial authorities and oversights are withdrawn.

The band enforcement officer and the authorities there are to aid in the band enforcing its own laws, through its own activities and its own employees. The band enforcement officer, subject to amendments yet to be discussed by the committee, would be an employee of the band. The band is free to appoint whoever they want as an employee, including a band enforcement officer, so there is nothing that dictates that the band must appoint a band member, or anyone else for that matter, as band enforcement officer. That's up to the band.

[Translation]

Mr. Yvan Loubier: Fine. Thank you.

[English]

The Chair: Mr. Martin, closing remarks.

Mr. Hubbard, did you wish to speak?

Mr. Charles Hubbard: If I may, very briefly, Mr. Chair.

I asked for a copy of that subamendment. I have something here called “possible”--something struck out--“subamendment”.

Mr. Chair, I think members all know that we've had these suggested amendments for several weeks. I don't like to criticize the chair, but I think we need to be a little more careful in terms of what we're accepting. This subamendment really doesn't explain where that statement is to be written. It's something that was done very hurriedly. In fact, I probably saw another one being written a minute ago for someplace else.

But in all fairness to the work of the committee--you know, we're not playing games--we're trying to deal with a bill, a piece of legislation, that's been sent to this committee in good faith by the House, and with that, we as a committee have a responsibility and a task to see that we send back to the House, in the best possible form, amendments to the bill that will make at report stage a bill that will be further discussed and amended in the House by the more than 300 members who represent all parts of this country.

Now, we can extend this for a long period of time, but, Mr. Chair, again not being critical, to put before the committee and to spend the time of the House on a piece of paper that isn't even written in clear form.... I can see someone's eyes going down; mine would be too. You know, there's a lot of good help around this table and a lot of us are putting a great deal of effort into getting this bill brought back to the House in the best possible way, and to bring forward something like this, to not even explain to people here where it would be put in terms of this G-9.1 amendment is really a preposterous thing for someone to do.

I hope in his closing remarks Mr. Martin will address Canada, that the honourable member will address Canada and look at the Canadian people out there and try to explain to them what he and his party are trying to do with this legislation.

Thank you, Mr. Chair.

¼ (1830)

The Chair: Thank you, Mr. Hubbard.

Before I go to Mr. Martin for closing remarks, the chair does not have a choice but to accept a subamendment that is in good standing. This subamendment, in spite of my agreement with most of what you said, has to be accepted by the chair. If I don't accept an amendment like this, then I am playing games. At the present time I'll let others play their games, but I had to accept it. I have no choice.

Mr. Martin, closing remarks.

Mr. Pat Martin: Mr. Chairman, I couldn't care less if the parliamentary secretary doesn't like our subamendments. We're making legitimate attempts to try to improve this bill and to try to accurately reflect what we were told by first nations presenters, not just first nations presenters but by the overwhelming majority of presenters who came before this committee and were vehemently opposed to this bill and who suggested ways that we might amend it to make it more palatable to the general public.

So the parliamentary secretary, through you, Mr. Chairman, can grandstand all he wants and try to sound sanctimonious by saying that what they're doing is honourable and what we're doing is not in some way. I don't accept that criticism. We're doing our very best to represent the views of the people who don't have a voice around this table but who are directly impacted by this legislation, whose lives will be affected by the smug arrogance that I detect from the parliamentary secretary in his tone and in the content of his remarks.

So I accept no criticism about exercising my legitimate right to introduce amendments and subamendments, Mr. Chairman.

The government had to submit a number of amendments because they realized the shoddy work they did in crafting this bill, until they were cautioned by professors of law and others that they were leaving themselves open for enormous numbers of court challenges and so on. So they're backfilling now, while we're assisting them in their backfilling to try to make the most of a bad situation.

The parliamentary secretary rarely speaks to the amendments; he always uses his time to criticize the work we're doing as opposition members in trying to give voice to those who otherwise aren't welcome around this table, and that's first nations people who tried to have their voice heard and are then rejected resoundingly by people like the parliamentary secretary, the man who tried to convince witnesses who did present here that the Indian Act was put in place to defend and uphold the rights of Indians. That's revisionist history, if there ever was any, or pure naïveté--one or the other, I don't know which. I don't think the honourable member, based on comments like that, is qualified to impugn the intentions or legitimate rights of opposition members to move amendments or subamendments.

The points I was making--and I think the honourable parliamentary secretary should try to follow some of the points I'm trying to make because there are serious, serious problems here. I'll give you an example of the sort of clause that's required--

¼ (1835)

The Chair: Mr. Martin, you have spent two minutes on the parliamentary secretary; let's move on now.

Mr. Pat Martin: Okay, thank you. He really makes me mad, is the problem, Mr. Chair.

The Chair: I understand.

Mr. Pat Martin: He really bugs me. It's ironic he's the one who challenged me to go outside last time; now I wish I had gone with him, to tell you the truth.

An example of the sort of clause required to deal with the issue about the Interpretation Act and whether or not it applies is the type we saw in the First Nations Land Management Act, which I believe was Bill C-49. The parliamentary secretary would be interested to know this, that in Bill C-49, the First Nations Land Management Act, it says expressly “This Act is binding on Her Majesty in right of Canada and any reference in this Act to Her Majesty means Her Majesty in right of Canada”. So clearly, federal officials do have to comply with laws enacted by bands under the First Nations Management Act. If the parliamentary secretary were interested in these issues, he would be very interested in that point.

In order to ensure the proposed amendments we're dealing with here are binding on the Crown and will work consistently with the First Nations Land Management Act, the joint ministerial advisory committee advised that a similar clause be included with these amendments. Well, we don't see that anywhere, Mr. Chairman.

Otherwise, you can see the problem. A band may be operating under the First Nations Land Management Act, under which it has a number of law-making powers, and simultaneously under the First Nations Governance Act, under which it has a bunch of law-making powers. They would have to actually go through the process of thinking that if we enact it under the FNLMA, then the federal civil servants will have to obey it when they come onto our land. But it we enact it under our own First Nations Governance Act, they won't.

So it's a silly and artificial thing that in our view bands should not be burdened with.

Do you even understand what I'm saying, Mr. Hubbard? I don't know if you've been listening or not, but it's a serious concern.

Through the chair, I wonder if Mr. Hubbard even understands what I was talking about.

Mr. Charles Hubbard:A lot of it is difficult to understand.

Mr. Pat Martin: Well, a lot of it must be difficult for you to understand, Mr. Hubbard. Actually, I'm quoting from Mr. Jim Aldridge, who is the co-chair of the joint ministerial advisory committee that put in the work for 18 months leading up to this bill. To finish his remarks, he said,

I should point out that if the concern is that a band law could prevent federal officials from carrying out their duties, if that's the reason for it, it should not be a problem, because the band law could not preclude them from carrying out a duty they're required by law to perform, in light of the conflict of laws provisions....

So if there's a conflict between a band law and a federal law, the way they've got the chips stacked here, the federal law would prevail to the extent of the conflict. The parliamentary secretary might remember some of the debate we had about that very issue recently, even before the weekend.

But the absence of a clause binding the Crown will create a fundamental inconsistency between law-making by a band under this act and under the First Nations Land Management Act. It's a technical point, but one that should be addressed. We haven't seen any attempt to address it since we've been dealing with clauses 16 and 17, which are the very clauses that outline the law-making powers, and now the enforcement powers.

We're concerned that under the current subclause 17(1), a band law made under clauses 16 or 17 for the regulation of an activity on reserve lands may provide for the inspection by a band enforcement officer of any place on reserve lands in which that activity is carried on. I wonder, if this provides for inspection of any place where the activity is regulated, does it contravene privacy legislation? If we've already lost the fight regarding the primacy of laws that may be in conflict, does this seeming absolute right of the enforcement officer to enter any place on the reserve contravene privacy legislation as it may exist elsewhere in the federal regime? Does it have the potential to contravene that privacy legislation?

And how does one ensure the independence of the position of the enforcement officer in a small community? This is a concern that was brought to our attention.

¼ (1840)

If you don't have a public service that's developed, how do you avoid the biases that may come with making someone the enforcement officer who may have an attachment to the current power structure, the current leadership regime in the community, or may have some relationship to the activity that's taking place?

This is why they rotate RCMP officers every two years. They never leave an RCMP officer in the same northern community for more than two years because they develop relationships and friendships and enmity with certain members of the community. They can't help it when they're in a community of a few hundred people and thrown together and living very closely together. To keep that neutrality of enforcement officers, RCMP officers are rotated through the north throughout the early years of their career. I don't see any reference to that when we deal with band enforcement officers, or even any attempt to ensure the enforcement officer is neutral.

The whole of the foregoing--and the whole section--is a sad substitute, really, for a first nations justice system. If this is as close as we can get to a first nations justice system--the reference to the enforcement officer as it pertains to bylaws made under clauses 16 and 17--it doesn't accurately reflect the good work that has gone on in many first nations communities as they try to wrestle with justice issues that show deference to customary traditions.

Before we broke for the weekend, I was about to relate my experience while living in the Yukon with the first aboriginal magistrate in the Yukon, Edith Josie from Old Crow in the Yukon. Even in the early seventies when I was living there, their approach was radical and innovative in that it was a departure from arresting a kid in Old Crow--a fly-in community--for maybe stealing a Ski-Doo or borrowing a Ski-Doo without asking, flying that person out to Whitehorse to stand trial while waiting two weeks in jail before they could be arraigned for trail, finding the person guilty and locking them up in the--

The Chair: Thank you, Mr. Martin.

We will now go to the vote on the subamendment to G-9.1. Are you ready for the vote?

(Amendment negatived)

The Chair: On the main amendment of Mr. Hubbard, we'll have closing remarks. That's on G-9.1.

Mr. Charles Hubbard: Thanks, Mr. Chair.

We've fairly well covered that topic, probably better than we really needed to, and I think we're ready for the vote.

The Chair: Are you ready for the vote? Do you wish a recorded vote?

We'll clarify for the members that when you vote on this amendment, G-9.1, you are in fact voting on clause 17.1. Then we'll come back to clause 17 and vote on the whole thing, except for G-9.1. Is that clear?

Mr. Martin.

Mr. Pat Martin: No, it's not quite, Mr. Chair. As we vote on government amendment 9.1--

The Chair: That's right.

Mr. Pat Martin: --I understood that the language therein would not end up being called clause 17.1.

The Chair: I've been advised that it will; it's a new clause, 17.1--

Mr. Pat Martin: Then it cannot be placed--

¼ (1845)

The Chair: --as indicated on page 149.

Mr. Pat Martin: Yes, but it cannot be placed, then, on page 13 after line 5, or else you would have 17(2) and then you would have 17.1, so....

The Chair: It's 17.1. Are you okay, Mr. Martin, on that?

Mr. Pat Martin: Yes, I'm all right.

The Chair: We're voting on amendment G-9.1 that will be, in itself, clause 17.1. A recorded vote.

(Amendment agreed to: yeas 8; nays 2 )

(Clause 17, as amended, agreed to on division)

(On clause 18--Laws re band governance)

The Chair: Amendment BQ-34 in clause 18. Monsieur Loubier.

[Translation]

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

I am very pleased to move this amendment. This is the tenth attempt, on mine and Mr. Martin's part, to enshrine in the Bill itself a direct reference to the inherent Aboriginal right of self-government. I hope that this time, the government majority will support this amendment, considering that nowhere in this Bill, other than in the preamble, is the inherent right of self-government recognized.

I also wish to point out that for many years, a significant number of stakeholders--and clearly not the least important of them--have been asking the government to use that inherent right of self-government as a starting point , and to quickly define the conditions associated with the exercise of that right. As some have said, that right was given the Aboriginal nations by the Creator.

Back in 1979, the report of the Pepin-Roberts Task Force on Canadian Unity, called A Future Together talked about the need for action. Allow me to quote an excerpt of that report, where it says:

Both the central and provincial authorities should engage in direct discussions with Indian, Métis and Inuit representatives in Canada with a view to developing with them […] constitutional provisions that would allow Aboriginal populations to take their rightful place in Canadian society;

As early as 1979, there was an awareness of this need. The report of the Pepin-Robarts Task Force on Canadian Unity talked about redefining the relationship on the basis of fairness and equitable treatment of First Nations.

In addition to that, even in 1983, the Special Joint Committee, composed of both Aboriginal and non-Aboriginal members, presented a very clear position on this. This was its conclusion, and I quote :

The Indians must manage their own affairs.

That was back in 1983. Even then, there was some recognition of the urgency of the situation. And yet in 2003, some 20 years later, we have not yet started to take action. It goes on to say :

There is an urgent need to establish new relations that reflect the diversity, rights and traditions of the Indian First Nations.

What is absolutely necessary is to ensure that when we talk about changing our relations, we remember that those relations must respect the traditions and culture of these populations…and that we shouldn't be trying to impose on them the kind of relationship that is completely foreign to their experience. If that can be achieved through mutual respect and trust, we will already have resolved half of the problems we're facing.

It was the Native Council of Canada that contributed to the drafting of the Special Joint Committee's report back then, in 1983. It didn't say that we should subject the First Nations to a new oppressor-oppressed type of relationship, but rather that the Aboriginal peoples should manage their own affairs.

Once again, the idea was not, as we see in Bill C-7, that they be subjected to the control of another government--indeed, a government completely foreign to their nation. The idea was not to impose conditions in areas falling within their jurisdiction, that would normally be the responsibility of a third level of government.

Here we're talking about policy areas where the law-making powers of First Nations can be exercised, not in the fashion of a municipality--I have nothing against municipalities; on the contrary, I believe them to be essential--but as a third order of government giving concrete expression to the inherent right of self-government and exercising the Aboriginal and treaty rights that have existed from time immemorial. It is clear that here we are not talking about regulating food inspection in restaurants, which is the kind of activity carried out by municipal authorities.

¼ (1850)

[English]

A voice: Mr. Chairman, have the members over there put their papers down and listen to the man who has something important to say.

Mr. Loubier, continue please.

A voice: Please!

The Chair: Order.

[Translation]

Mr. Yvan Loubier: It can be frustrating, Mr. Chairman, when we're talking about the inherent right of self-government of the Aboriginal peoples and the fact that as early as 1979, the Pepin-Robarts Task Force looked at this issue, to see colleagues reading ads in the newspapers without even listening to what is being said. That can be frustrating, particularly since First Nations representatives, who are here in the room with us, do not have the right to sit at this table. That is something that can only be characterized as extraordinarily inappropriate.

Following these events, which go back approximately 20 years, the courts got involved. Also, according to the report of the Royal Commission of Inquiry, the government needed to negotiate with the First Nations as equals, rather than treating them like children incapable of negotiating what is appropriate for them on their own.

So here we are in committee, seated on this side of the table talking about the importance of recognizing the inherent right, and government Members are not even listening to what we have to say. The fact that First Nations members are not even allowed to sit at the table, as representatives of mature peoples, and talk about what they are seeking for the future, makes me profoundly ashamed.

I am ashamed to be here, deciding what would be good for the First Nations, when courts of law, including the Supreme Court, the highest court in Canada, have ruled that the Aboriginal peoples have an inherent right of self-government, that we should respect their dignity and sit down with them, as adult representatives of our respective societies, and discuss the manner in which they choose to exercise their right of self-government.

I feel the most unspeakable shame. I see you reading newspaper ads when we are talking about the best interests and the future of many nations, including that of young Aboriginals, whose prospects are currently grim. These young people are fed up with the kind of odious, Rhodesian behaviour that you are displaying in wanting to impose your will. When I say “Rhodesian“, I am obviously referring to the period prior to the emancipation of the Blacks in South Africa. I find this so disgusting that I think they're right to show their anger; not only that, but had I been in their situation, I would have done that a long time ago, and a lot more aggressively.

So, please, show a little respect. If you're not listening, at least pretend to listen. Try not to engage in unhelpful provocation, as some Liberal colleagues have been guilty of with Aboriginal women in the room.

The Chair: That is absolutely false. It's quite the reverse.

Mr. Yvan Loubier: False, you say? Are you telling me I'm a liar?

The Chair: That is absolutely untrue. It is quite the reverse that happened; I saw it myself.

Please proceed.

Mr. Yvan Loubier: That's what I'm doing; I'm proceeding. Not mentioning any names, your colleague, Derek Lee--who was at the end of the table, provoked the Aboriginal women sitting in the room, and that's when things got completely out of hand in this Committee. You, too, Mr. Chairman, are sometimes responsible for letting things get completely out of hand in this Committee, and one day, you'll pay for that. One can't constantly show such utter contempt for people and believe that life is just going to continue on the way it always has, without ultimately feeling a deep sense of shame. I hope that at some point, you, too, will feel profound shame. To want to impose the kind of garbage we see in Bill C-7 on the Aboriginal nations is utterly despicable, in my view.

I also find it despicable that Members are reading newspaper ads, when we're talking about the future of the Aboriginal peoples. I'm having trouble containing myself here. That is even worse than the kind of nonsense we've been hearing around this table. That kind of cynical, arrogant behaviour alone is enough to give rise to unspeakable hatred among First Nations members who are here in this room. We can only hope that there are not too many of them watching you today, because I don't know how they are going to feel when they leave this room. There is a good chance they will be totally scandalized by the behaviour of the Liberal majority here today.

My amendment is aimed at recognizing the inherent right of self-government. This is an absolute necessity, without which there can be no support among the First Nations for any kind of relationship whatsoever with the federal government, however well defined it might be. Recognizing the inherent right of self-government and all the First Nations Aboriginal and treaty rights is the absolute starting point. If we don't realize that right off the bat, we'll simply end up with the Bill…

¼ (1855)

[English]

The Chair: Thank you, Mr. Loubier.

Mr. Hubbard.

Mr. Charles Hubbard: Mr. Chair, we have difficulty supporting this amendment because it pre-supposes what the concept of self-government is. Of course, that's a topic of discussion and negotiation.

Mr. Chair, I've been in Parliament since 1993, and I think I've heard the worst display of parliamentary ignorance I've heard for a long time. I'm amazed that the honourable member would sit there with the sacred feather, which has a connotation that you speak the truth with justice and with all other good things that first nations peoples talk about, and would address the people on this side of the table with such arrogance and such disdain. I can't believe, Mr. Chair, that you tolerated that, but I guess as chair you have taken a lot of whatever it is from the honourable member. But in terms of this amendment, we will not be supporting it because of the fact that it predetermines the content of self-government. We cannot support it for that reason.

The Chair: Thank you, Mr. Hubbard.

Yes, I have tolerated a lot of abuse, and the reason I am doing this is because for eight years I've been trying to get our House leaders to change the rules of committees. They are unworkable. No other country I know of would have parliamentarians held hostage through a process like this. At times we couldn't even function, we couldn't even hear one another.

As chair, my responsibility is to find the best way for the work to progress. The only way I can find so the work will progress is to permit that we not talk to the issue, to take the abuse that comes my way more than anybody else, and to keep an eye on the clock so an end comes to every one of the interventions. That's the process that we have on Parliament Hill, and we should be ashamed of our procedures.

Mr. Loubier, Mr. Martin, did you wish to take the floor?

Mr. Pat Martin: Yes, please.

Mr. Chairman, I suppose the chair has the right to take the floor from time to time and express his views. You've been quite disciplined throughout the weeks you've been involved here in not abusing your role as chair or taking the chair to express your opinions. So I'll accept that from time to time we have to acknowledge you're human too, and you have views about these issues that you wish to share. Normally, I think, if it went beyond that, a person would have to step out of the chair and ask someone else to assume the chair to make a full intervention from any one of the microphones here, which you would have a right to do anytime.

I think the amendment my colleague from the Bloc put forward has a great deal of merit, because it's using language that we've committed ourselves to using--and language is important. Language is more than just the way of communication. It's not even the content of the sentence as much as that the terminology used would go a long way to reinforcing the stated principles and objectives of this bill and be more in keeping with the purposes of the bill and the preamble.

Now, I don't accept the parliamentary secretary's reason for not supporting Mr. Loubier's amendment. He says to acknowledge the existing inherent right of self-government, which includes legislative authority for band purposes, would presuppose or predetermine what self-government means, when as a term it has yet to be defined or understood. I don't accept that.

We know what self-determination means and we know what self-governance means. We know self-governance includes the right to put in place codes of practice and conduct to govern oneself that are in keeping with traditions, cultures, and social norms and mores.

It's a poor excuse. It's also a poor excuse in that elsewhere in the bill the parliamentary secretary sees no fault at all in predetermining the outcome when a conflict arises between laws passed by the band and council and laws passed by Parliament. Instead of even allowing that such a conflict may call for a dispute resolution mechanism and the fact that in some cases the band's law may have primacy and in other cases the government's law will, the parliamentary secretary finds no fault--in three or four separate occasions throughout this bill--in predetermining the outcome of any arbiter or judge in the cases that remain to be seen and that will undoubtedly come from this new transfer of jurisdictional powers from the federal government to first nations.

You can't have it both ways is the way you would say it in common English. You can't have your cake and eat it too. In one sense, the parliamentary secretary is using as an excuse the reason that the language Mr. Loubier uses predetermines or presupposes what self-governance is and means; he rejects it on that basis. On the other hand, he's saying he finds no fault whatsoever in clauses 16 and 17, and again, I believe, you'll find it in clause 18, where under the conflict of laws provisions it predetermines who is right and who is wrong before we even know the substance of the conflict.

I reject that. I find it's meanspirited.

Then to add further insult or to make personal comments about the drafter of this amendment just because the honourable member doesn't like it is petty beyond belief. The only thing I can attribute it to or explain it by is the fact that we're all tired; we're all exhausted again. We're making law here under the worst possible circumstances.

½ (1900)

We're dealing with important issues that have a profound effect on the way first nations will have to conduct themselves and govern themselves in the future without a comprehensive understanding of the issues at hand, because we haven't had time to give them the consideration they deserve. Secondly, we're doing it under duress, under threat that if you don't cooperate, if you don't comply and roll over on the clauses of this bill in the clause-by-clause, you'll be kept here all night.

One Liberal member of Parliament came up to me the other day in the House of Commons and said “What you guys are doing is unreasonable to the point that you're putting personal health at risk in order to ram this bill through”. He cautioned me--he is a middle-aged man, as I am--that we are in the prime risk years for heart attack, all of us. We have a stressful job, we have weird hours.

For some reason, there's such urgency associated with this bill--a bill that we know will never see the light of day, because Paul Martin, the future Prime Minister of Canada, has already indicated he has no intention of implementing it. Yet we think it's such a national emergency that we ram these changes down first nations people's throats that we're going to stay up all night to do it--not just once, but over and over again, until somebody physically drops.

It wouldn't surprise me to see one of us--myself included--simply collapsing under the duress. You can't sit here day after day, week after week, into the night and subject yourself to this kind of thing--especially when it begs the question, to what end, for what purpose? To make technical administrative amendments to the Indian Act? It's not as though we're dealing with something even sweeping and comprehensive here; we're tinkering with colonialism.

This bill is not important in the final assessment of things, because it doesn't address the many legitimate grievances first nations people have. If they were asked what things they'd like to change about the Indian Act, it wouldn't be these things, this Bill C-7. They're not even on the radar screen in terms of the priorities first nations people want dealt with. If you asked any number of first nations people in a legitimate way, in a true consultation process, what things they'd like dealt with, they'd say health care, education, housing, employment opportunities, economic development--any number of things they would like addressed.

Tinkering with administrative bureaucratic details is not part of the package in terms of top-of-mind priority issues for first nations across the country. We're off to a bad start. That's all you can say. We're off to a terrible start. It's such a missed opportunity, because it's only once in a generation that Parliament or any government shows the willingness to address first nations issues.

I regret to say it, but when it was brought to the attention of the Prime Minister--I don't know whether it was just a mistake or because he was tired or was surprised by a question on this issue--he called it the “first nations problem”. People are getting tired of being referred to as a problem and they're offended by that. It's been brought to my attention that more often than not, when government talks about addressing issues pertaining to first nations, they talk about the “Indian problem”. A million-and-some-odd people who find themselves at the bottom of the socio-economic ladder in this country are more than a problem; there are substantial problems here.

Had we begun this whole exercise, this whole undertaking, with a legitimate consultation and had we begun based on the premise of recent Supreme Court rulings instead of allowing the Supreme Court to give meaning and definition to section 35 of the Constitution, if we'd had the courage to undertake that study ourselves, it wouldn't be a $550 million exercise like this is going to be. I'd say that figure is low. I believe that figure will compound exponentially before the dust settles around this, because you can't impose this comprehensive change in the way people do business on 633 unwilling first nations and expect everything to go according to budget and according to plan.

½ (1905)

We already anticipate opposition, a reluctance to cooperate, because people have made it abundantly clear it's not something they want. In fact, they vigorously oppose it. It's beyond me what sanctions the government thinks they're going to use. Are they going to bring out the army and enforce this rule under marshal law or something, these rules nobody wants? Or will they simply keep spending more and more money taking people to court? Or, as I predict, they will use the disciplinary measures the minister has in his authority to put a band under trusteeship and put them under third-party management, which will make him the biggest Indian agent in history.

The Chair: Thank you, Mr. Martin.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier One of our colleagues said a little while ago that no country in the world would agree to parliamentarians being held hostage, as we are, by discussing and debating a piece of legislation like Bill C-7. For once, I actually agree with what you're saying. But at the same time, there is no Western democracy in the world that treats its Aboriginal peoples the way Canada treats them at the present time. If you want to call that “hostage-taking“, then I am quite willing to be one of the hostage takers, shall we say. Among Western democracies, it is rare to see countries as insensitive as Canada to the kind of criticisms that have been levelled at it. The government has ignored the criticisms of the UN and the Council of Europe, and even the rulings of the Supreme Court of Canada, which is, after all, the highest court in the land.

So, if we're talking about hostage-taking, then we should also talk about the Aboriginal nations in Canada who, for decades and decades, have been the hostages of a government that refuses to move forward as it would normally if it considered all the rulings handed down by the courts, and truly recognized the inherent right of self-government, the kind of inherent right of self-government I refer to in the amendment I'm moving.

Of course, I am very proud of the eagle feather that the First Nations gave me, just as Mr. Martin certainly is. This is an eagle feather that, when you are a believer, helps you to take a broader view of things, to see further than the tip of your own nose when you're dealing with relations between the federal government and the First Nations. I will try to be worthy of the tribute the First Nations have paid me by offering me this eagle feather, and I want to assure them that I will defend them like the apple of my eyes.

There is a whole spiritual aspect to redefining the relationship between the federal government and the First Nations, and yet you seem to have forgotten that. I am not the only one saying this. The Chairman mentioned earlier that he has been working very hard to secure changes to the rules in parliamentary committees. But I want him to know he is not the only one doing that. Even Matthew Coon Come, National Grand Chief of the Assembly of First Nations, is of the view that the way we work here in committee is totally ridiculous. In January, he referred to the absurdity of this system, and I quote:

During clause-by-clause consideration, we realized just how absurd the Canadian system is. Out of a concern for speed--not fairness--Members of Parliament who were not regular members of the Committee and had not been present for the hearings were called upon to comment on the proposed amendments. Some of them only bothered to raise their hands to vote, being preoccupied with other important matters, such as signing their Christmas cards. And that is no joke; it is a fact.

So, seen from the outside, I can certainly understand how members of First Nations must feel when they see Liberal colleagues who, instead of taking part in a perfectly serious discussion of proposed amendments aimed at at least correcting some of the egregious shortcomings of Bill C-7, are engaged in all kinds of other activities--everything except giving serious consideration to the amendments coming forward.

It's fine for the Parliamentary Secretary to play the offended virgin, saying that this denotes complete ignorance of procedure, but what procedure is he referring to? Is he talking about the procedure that involves imposing time allocation, which prevents us from speaking for more than 10 minutes? You are the ones that imposed time allocation; not us. We were forced to accept it, and we are making the best possible use of it. So if people want to refer to parliamentary procedures that have been usurped, then I think that we should also talk about what you yourself proposed, as Parliamentary Secretary, and what the Chairman himself often proposes as a delaying tactic, to prevent us from doing our work properly as Opposition Members.

So, it's all well and good to play the offended virgin, but we are not the ones that introduced a Bill like this, which is forcing us to make maximum use, even within the constraints of your time allocation motion, of whatever time we have, in order to try and highlight the absurdity of a piece of legislation like Bill C-7, and do a little education around this Bill, which is a complete distortion of what a real agreement between sovereign nations that respect one another should look like.

½ (1910)

In this Bill, there is another egregious shortcoming that we haven't talked much about since starting clause-by-clause consideration, which has to do with the whole question of reconciliation. Where in the Bill, or even in the preamble, is there mention of reconciliation?

Our relations with the First Nations over the last 130 years have not been constructive relations. That was the view of members of the 1983 Special Joint Committee and of the eight members of the Erasmus-Dussault Commission. They were destructive relations--relations which involved putting down the First Nations and parking them on reserves. Their rights were taken away, their dignity was ignored, and their institutions were destroyed. But before we talk about reconstruction and reconciliation, we have to be modest enough to recognize that we need that reconciliation. But where, in Bill C-7, does it talk about starting over?

There is a declaration of reconciliation that everyone should know about, and I would like to quote from it. Here is what it says :

Unfortunately, our history as regards the treatment of the Aboriginal peoples is certainly not a source of pride. Attitudes based on feelings of racial and cultural superiority led to the repression of Aboriginal culture and values. As a country, we are haunted by our past actions, actions that led to a weakening of the identity of the Aboriginal peoples, the disappearance of their languages and cultures, and the prohibition of their spiritual practices. We must recognize the consequences of these acts on nations that were fragmented, disrupted, limited, or even destroyed through dispossession of their traditional lands, the relocation of Aboriginal peoples, and certain provisions of the Indian Act. We must also recognize that these actions resulted in the erosion of the political, economic and social systems of the Aboriginal peoples and of the Aboriginal nations.

that existed well before the Europeans arrived.

Reconciliation is an ongoing process. In order to renew our partnership, we must ensure that the mistakes that characterized our past relationship are not repeated.

I will stop the quote there, because I find that passage to be particularly telling. We say we mustn't repeat the mistakes of the past, and yet we find ourselves in a situation here where we are in fact repeating those mistakes and forgetting to enshrine fundamental principles in the actual body of Bill C-7, namely the inherent right of self-government.

They can well play the offended virgin because we are supposedly drawing out the debate with impunity, wasting people's time and keeping Members of Parliament hostage. But you kept the Aboriginal peoples hostage for decades, and that doesn't seem to have bothered you in the slightest. So, if we are both to play the offended virgin, I prefer to take offense at the treatment you're meting out to the Aboriginal nations and that you continue to want to impose on them through Bill C-7.

Indeed, the whole point of my amendment is to recognize the inherent right of self-government. I know that it will receive the same treatment as every other amendment we have moved, even though these amendments reflected the view of the majority of witnesses who came here to ask us, and urge you, to accept amendments to Bill C-7, because so far, the only significant amendments that you've have accepted are government amendments, and most of the time, they are not substantive amendments.

Every time we present something fundamental like this, you treat these amendments as though they were totally useless, out of date, and irrelevant, when in actual fact, these are things that we were asked to do, and are still being asked to do, not only by the representatives of the First Nations, but by constitutional experts we also consulted, by your former colleague, Mr. Warren Allmand, who totally rejects this Bill, by the Canadian Bar Association, the Quebec Bar, the Aboriginal Bar Association, and now even your own future Prime Minister, who considers this Bill to be totally beyond the pale. And yet you continue to work on something which constitutes a very poor foundation, and which is going to be thrown in the garbage a few months from now, as though nothing had ever happened.

So I am really wondering who is right to play the offended virgin here.

½ (1915)

The Chair: Thank, Mr. Loubier.

[English]

We'll go directly to a recorded vote on amendment BQ-34, page 151.

(Amendment negatived: nays 7; yeas 2)

½ (1920)

The Chair: We'll go to amendment NDP-44, page 152.

Mr. Martin.

Mr. Pat Martin: Mr. Chairman, NDP-44 represents the 44th attempt where the NDP has sought to make meaningful amendments to this bill in deference to the many presentations we heard from first nations and non-aboriginal presenters who made a series of important points for the committee's consideration, virtually none of which have been implemented by this committee. In fact, it would seem the committee didn't even pay any attention to the many passionate presentations we heard.

In this particular clause, clause 18, which lists a number of things the council of a band may make laws in relation to, we believe it's important—and we've put forward an amendment—to include a reference to make it clear that the power of a band council to make laws under subclause 17(1) does not abrogate or derogate from any existing aboriginal or treaty rights of aboriginal peoples of Canada, or the protection accorded to such rights under section 35 of the Constitution Act 1982.

Further, we want to make it abundantly clear by this amendment that the power of a band council to make laws under subclause 17(1) does not limit any authority that may be vested in the band council by virtue of the inherent right of self-government of an aboriginal people.

We find it necessary to include this language, Mr. Chair, because the fear is—and legal opinions are piling up to the effect—that Bill C-7 does in fact infringe upon constitutionally recognized aboriginal and treaty rights. In fact, we accuse the government of deliberately infringing upon these rights. The government could answer our allegations by tabling and presenting legal opinions to the contrary. They've chosen not to. In fact, despite repeated requests and demands that any documentation the government has regarding whether or not this bill infringes on the Constitution be produced, they've categorically refused to share it with us and refused to table it here.

Now, this is in contrast to another standing committee, the government operations committee, where it was the Liberal members of the committee who decided they couldn't do justice to the clause-by-clause analysis of Bill C-25 unless the minister and the bureaucrats circulated and made available to all committee members the opinions and the documentation pertaining to that bill. In that case, they also, on the face of it the first time around, were turned down. It was the Liberal members of the committee who added weight to or agreed with a very good chairman, a very sound chairman, who had the same presence of mind or the same point of view: that this type of secrecy doesn't serve anyone in terms of making good legislation.

We have reason to believe this bill does in fact seek to infringe upon constitutionally recognized aboriginal and treaty rights. We've seen nothing to the contrary, even though we know such documents exist, because the Indigenous Bar Association, a chapter of the Canadian Bar Association, made application under the Access to Information Act for those very documents. They waited for 18 months before they were turned down. They were refused; it was said it would be against the interests of the Crown to release that information.

Well, those are the lawyers who represent first nations. Those are the legal counsel for the first nations that stand to be affected by this legislation, and they refused to share that information with them. That's one thing. But to refuse to share it with members of Parliament, who have a duty to be fully aware of the impact of this legislation—and even more than normally we have a duty because we have a fiduciary responsibility to first nations.... Since we are members of Parliament and members of the Standing Committee on Aboriginal Affairs, Parliament's fiduciary responsibility towards aboriginal people is extended to us. We have a duty to make ourselves fully conversant with and aware of all aspects of this bill, and yet they refuse to give us the information we need. Mr. Chairman, I think it's outrageous.

½ (1925)

I guess there are not enough Martinites on this committee to have the courage to stand up on their hind legs and demand the same kind of cooperation. It became a leadership split at the government operations committee. I wish we could see a similar split here. It would not only serve our interests; it would serve the interests of the very first nations who would be affected by this legislation. They want to know if this legislation will have any effect or impact on outstanding court cases or future court challenges. Will this bill actually infringe upon constitutionally recognized rights? We have legal opinions that say it will.

That's why, in the absence of them being honest enough to disclose this information, we insist on language to the effect that in the event that this bill does go before the courts--and we know it's going to be challenged; the court challenges are already being prepared--at least there should be language in here to protect the interests of first nations, to assure any third party who may be reading this, any arbitrator or judge or adjudicator, will see clearly that nothing in this section at least shall be read so as to abrogate or derogate from any existing aboriginal rights. If there's any doubt or confusion, for the sake of clairity we should have this non-derogation reference in here.

We should also, as does paragraph (b) of my amendment, clearly state that listing the specific areas in which a council of a band may make laws doesn't limit any authority vested in a band council by virtue of the inherent right of self-government to also make laws pertaining to other areas. No one should be able to interpret that listing these areas in any way limits the law-making powers of first nations to these specific things.

Again, I have to make the same argument that it's the full box versus the empty box theory of rights. We recognize their rights--at least the opposition members on this committee recognize the inherent right of first nations to self-governance. We see a full box of rights that exists already. The way this legislation is crafted would lead one to believe that no such rights exist until they're given to first nations by the federal government. That's a completely wrong-headed approach, Mr. Chairman.

We've made it abundantly clear that the First Nations Governance Act clearly does intrude on native rights. Contrary to what we've heard government-side members say, reasonable people, the overwhelming majority of the presenters to this standing committee, vigorously opposed Bill C-7, including many non-aboriginal members and representatives from civil society. All the mainstream churches, many respected academics, law professors, bar associations, and even a former Minister of Indian Affairs, testified that, in their opinion, Bill C-7 infringes upon constitutionally recognized aboriginal and treaty rights, section 15 of the Charter of Rights and Freedoms, and international conventions regarding the right to self-determination, to which Canada is a signatory.

It's not just the AFN “club of chiefs”--people have used the terminology here in a very disrespectful way--who are seeking to protect themselves by opposing this bill. There are plenty of non-aboriginal members of civil society who also oppose this bill and who strongly encouraged us to seek reference to non-derogation clauses at various stages throughout this bill.

½ (1930)

We notice that subclause 18(1) deals specifically with laws in relation to band governance and reads as follows:

The council of a band may make laws in relation to

(a) the establishment of bodies, their composition, powers and duties, and their relationship to the band;

(b) the delegation to any person or body of any of the council's powers under this Act or the Indian Act, other than its powers under this section;

--which is the default--

(d) conflicts of interest of members and of the council and employees of the band;

(e) access to information under the control of the band, the protection of personal information under its control and access by individuals to information about themselves;--

The Chair: Thank you, Mr. Martin.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: I want to say right off the bat that I support the amendment moved by my colleague, Mr. Martin, because I believe it represents one of the essential conditions for re-opening discussions between ourselves and the First Nations, in a context where we would be dealing with each other as equals. First and foremost, we must show respect for the First Nations. The legislative evidence of that respect would be to introduce some provisions in the body of this legislation, given that most of the provisions of this Bill are problematical, based on the views expressed by the Canadian Bar Association, the Quebec Bar, constitutional experts that looked at this, and even a former Minister of Indian Affairs who was around when the 1983 Joint Committee report was made public, that would make it absolutely clear that the main problems raised with us by witnesses would, within the Bill itself, be answered in such a way as to clear away any ambiguity.

According to all the experts, these provisions could contravene certain parts of the Constitution, the Canadian Charter of Rights and Freedoms, and a number of Acts of Parliament. We need to ensure that it is perfectly clear in the Bill itself, despite these problems, by means of a kind of legislative guarantee, if you will, that the law-making powers conferred on band councils in no way abrogate or derogate from their existing Aboriginal or treaty rights.

Too often in the past, we have ended up, after an agreement has been made with the federal government, in situations where Aboriginal nations realized they had lost something in the bargain, even though they thought they had a relationship of trust with their federal counterparts. So, I think it's quite ingenious of Pat Martin to be introducing a provision directly into this Bill that says:

The power of a band council to make laws […] does not abrogate or derogate from any existing Aboriginal or treaty rights of the Aboriginal peoples of Canada or the protection accorded to such right under Section 35 of the Constitution Act, 1982.

He is absolutely right to introduce such a provision, because there is far too much evidence, borne out when you analyze Bill C-7, that there really is a direct connection between Bill C-7 and the 1969 White Paper. And what did the 1969 White Paper propose? Well, it in fact proposed the extinguishment of the Aboriginal nations existing ancestral rights.

The White Paper which was the work of the current Prime Minister, who was then Minister of Indian Affairs, was decried and denounced by the First Nations like nothing a bill has ever faced in the way of opposition, except for Bill C-7, of course.

I also think it's an excellent idea to introduce a paragraph (b), which says that the power of a band council to make laws :

…does not limit any authority which may be vested in the band council by virtue of the inherent right of self-government of an Aboriginal people.

That, too, is a fundamental principle. Since we began clause-by-clause consideration of this Bill… Indeed, every single witness that appeared before the Committee and dealt with that issue told us it was absolutely necessary, fundamental, to recognize the inherent right of self-government, and after that, to recognize what members of First Nations are and what they want to be.

In terms of changing the relationship between the federal government and the First Nations, the Native Council of Canada, taking part in the work of the Special Committee on Indian Self-Government back in 1983, gave a very good illustration of what was meant by that. It said, and I quote :

What is absolutely essential is to ensure that when we say we want to change the relationship… we focus on establishing a relationship that respects the traditions and culture of the Aboriginal peoples… without trying to impose on them a type of relationship which is completely foreign to them. If we can achieve mutual respect and trust, we will have resolved half of the problems we are currently facing.

So, it was in 1983 that the Native Council of Canada presented this vision of renewal and laid out the essential conditions for progress in this area : respect for the traditions, culture and rights of the First Nations.

But where in Bill C-7 do we see a desire expressed to respect the traditions, culture and rights of the First Nations?

½ (1935)

Every time we have tried to introduce, into the body of the Bill itself, a reference to the inherent right of self-government or to Aboriginal or treaty rights, our suggestions have been completely rejected. Right now, in Bill C-7, where reference is made to respect for the collective identities of the Aboriginal nations and what they are, it is fairly strange to see it written, and I just want to quote this short paragraph :

Whereas :

representative democracy, including regular elections by secret ballot, and transparency and accountability are broadly held Canadian values;

This is a bill on First Nations governance, and there you have a statement about transparency and accountability being broadly held Canadian values. But how is it, then, that no reference is made in this Bill to the values held by the First Nations, given that they are the subject of Bill C-7?

How can we talk about changing our relationship, putting it on a completely new footing and respecting the First Nations, and at the same time, in a Bill that is supposedly going to improve relations in terms of self-government and give us some impetus to keep that process going, refer to broadly held Canadian values, but make no mention of the values of the Aboriginal nations?

I find it odd, to say the least, that there should be such an incredible contradiction between the desires expressed in the preamble and what a simple sentence like that actually says, where somehow, we are incapable of naming, even once, the deeply held values of the First Nations. Why is there no reference to the values of the First Nations, and yet we refer to such broadly held Canadian values as transparency and accountability?

It's a pretty hostile thing to say to a First Nation's representatives, as Liberal colleagues did earlier, that this Bill will improve their situation, that the government respects their dignity and their values, and yet here we have this paragraph where it talks about Canadian values, but not First Nations values.

There are different ways of expressing democratic values. We heard some examples when we went around the country. We were told, for example, that when the Ontario chiefs hold elections, the candidates stand in a circle around a drum, and people who support them line up behind them. Could there possibly be a more transparent way of doing things than that? People just line up behind the candidate they support. So why, in Bill C-7, is there no reference to the fundamental democratic values of First Nations?

And we mustn't forget that this is in fact an attempt to impose democratic values such as those on the First Nations, when the majority of them already have highly transparent and democratic systems in place for the selection of those who govern and represent them. We tend to forget that the First Nations were not allowed to take part in participatory democracy in Canada until 1961. That is really something else. They were completely excluded from the process of democratic representation until 1961, and yet now, the government wants to impose our democratic processes on them.

It really is quite insulting, in the light of that historical analysis and when you see the extent to which the federal government lacks respect for what the First Nations are and want they would like to become as they rebuild their institutions, institutions that were destroyed during 130 years of the Indian Act. And please, please don't tell us that this Bill is intended to replace the Indian Act. That's the lie they told us in the House of Commons. The Minister of Indian Affairs said it, and so did the Prime Minister. That is absolutely untrue. It just isn't true that this Bill, once it comes into force, will replace the Indian Act.

½ (1940)

The reality is that it will be applied in addition to the Indian Act. It will only further complicate relations between the First Nations and the federal government and multiply the number of proceedings currently underway to challenge the actions and unreasonable interpretations of the federal government, in its push to manage the affairs of the First Nations.

The result will be an increasing number of legal proceedings that will be more and more complex. It's all well and good for the Department of Indian and Northern Affairs to talk about its increased budget, but in the next few years, the Department will be using that increase to defend itself against the First Nations, because there will be challenges. Don't think there won't.

The only problem is that when those proceedings are underway, probably none of you will be at the table to take responsibility for what the government is doing now. It's easy to make a decision today and jump on Jean Chrétien's steamroller before he leaves, thinking that 10 or 15 years down the road, if things don't work out, well, that's just too bad, because you'll have retired anyway. I think we have to stop taking that kind of irresponsible attitude towards our relationship with the Aboriginal peoples.

[English]

The Chair: Merci, Monsieur Loubier.

Now to Mr. Martin for closing remarks.

Mr. Pat Martin: Mr. Chairman, to open my closing remarks, let me say again how much I resent being forced to stay here unreasonable lengths of time to force through a bill even the government knows will never succeed, will never see the light of day, because Paul Martin has already expressed that he doesn't want it. He agrees with first nations people that it's useless, pointless, and will further fracture the relationship between the federal government and first nations.

I resent the parliamentary secretary and whoever else is responsible for us jeopardizing our health by staying here all through the night so you can ram this bill through that nobody in Indian country wants. Mr. Chairman, it's absolutely ridiculous and it borders on the irresponsible on the part of the parliamentary secretary and his stubbornness.

I resent, Mr. Chairman, the muzzling of the voices of first nations people, which is what it boils down to. Our being here has the effect of even limiting my ability to make reasonable interventions--

The Chair: Order.

We will suspend until this gentleman leaves this table.

½ (1943)

¾ (2005)

The Chair: We will resume proceedings with Mr. Martin on closing remarks. We are at 3 minutes, 14 seconds.

Mr. Pat Martin: Mr. Chairman, is that how much time is remaining?

The Chair: That's how much has been used up.

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

It was helpful to have that interruption, to tell you the truth, because it gives some of us time to at least collect our thoughts and be able to deal with the subject matter with the attention it deserves. The pace and the timeframe and the time of day are not conducive to the serious study or the clause-by-clause consideration of this bill. It does a disservice to those very people we were just reminded of: first nations aboriginal people across the country, who were optimistic, I suppose, at the onset of this entire process that we might be making changes to the Indian Act in a positive way that would affect their lives in a positive way. I regret that it's anything but the case.

Clause 18 dictates in a very narrow and prescriptive fashion specifically what things the council of a band may make laws in relation to. Frankly, this is just a thinly veiled attempt, and not a very helpful attempt, to modernize the language of section 81 of the Indian Act. Section 81 of the Indian Act also refers to what the council of a band may make bylaws dealing with.

I don't know how many of you have recently reread section 81 of the Indian Act, but I have recently. I note that the council of a band under section 81 may make bylaws “to provide for the health of residents on the reserve and to prevent the spreading of contagious and infectious diseases”; may make bylaws to do with “the regulation of traffic”; may make bylaws dealing with “the prevention of disorderly conduct and nuisances” or to provide for “the protection against and prevention of trespass by cattle and other domestic animals”.

The reason I itemize some of these things is that you'll note, Mr. Chairman, how insignificant and inconsequential a great number of these bylaw areas are. That is not to diminish the importance of being able to establish pounds for the keeping of stray animals that may wander onto the reserve; I'm sure that's a very important bylaw. But the comparison I use—the comparable comparison—is in an industrial setting you would allow industrial democracy by letting the employees decide what colour to paint the lunch room when the boss still decides what speed to run the assembly line at.

In other words, these particular areas under which the council of the band may make bylaws don't deal with justice, or education, or substantial issues pertaining to the quality of life of first nations people. Instead they deal with “the destruction and control of noxious weeds”, and “the regulation of bee-keeping and poultry raising”; “the construction and regulation of the use of public wells, cisterns, reservoirs”; the control and the prohibition of public sports and of “athletic contests and other amusements”—bingo, I suppose, unless there was gambling associated with the bingo, and that probably wouldn't be eligible; or “the regulation of the conduct and activities of hawkers, peddlers or others who enter the reserve to buy, sell or otherwise deal in wares or merchandise”.

So clause 18 of this new First Nations Governance Act—this grand vehicle towards self-governance—simply modernizes this list of the detailed minutiae of what a band council is allowed to introduce bylaws about, with another list of things. The council of a band under clause 18 may make laws in relation to “conditions under which the council may enter into commercial or other transactions”, or “conflicts of interest of members of the council and employees of the band”, or the election of “members of the council under the band's leadership selection code”, etc., etc.

We want some assurance, in the amendment we seek—the NDP—that none of the foregoing is intended to abrogate or derogate from any existing aboriginal or treaty rights of the aboriginal people of Canada or the protection accorded under section 35.

¾ (2010)

The Assembly of First Nations had similar concerns regarding clause 18, and these concerns were brought to our attention in presentations. Unfortunately, the content of the presentations made never--or rarely, if ever--finds its way into the bill; nobody was listening. But they cited their reservations with clause 18; they were the same as the concerns they had with clause 16. They said clearly these clauses reflect the government's bureaucratic view of band laws and do not resemble the first nations' understanding of or approach to law-making.

These clauses pose significant problems, as the legislation is overly prescriptive. The overall intent in the law-making clauses, according to the minister, is simply to modernize the language of section 81 of the Indian Act. This modernization agenda merely serves to modernize colonialism and control. It does not reflect an improved understanding on the part of the Government of Canada of first nations' rights, interests, or needs. Law-making was not even discussed in the consultations, and the cabinet mandate only makes minor reference to law-making as part of the overall reform prospects.

I note as well the office of the B.C. Vice-Chief of the Assembly of First Nations also raised significant concerns. The difficulty with these provisions is they seem to empower bands to make laws that are limited to those items specifically enumerated in the paragraphs of clauses 16, 17, and 18. And of course inherent rights—

The Chair: Thank you, Mr. Martin.

We're ready for the vote, a recorded vote on NDP-44 on page 152.

We'll wait until we have some assistance to do that.

(Amendment negatived: yeas 2; nays 9)

The Chair: We're at amendment BQ-35, on page 153. Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Amendment BQ-35 is intended to delete a provision found in most of the articles of Bill C-7, which is that any law made by First Nations governments can become null and void if it is in conflict with any provision of an Act of Parliament or regulation applicable to the band.

I hope that one day, I will manage to convince you of the merits of this kind of amendment. The substantive argument is the same : to ensure that we are giving real law-making powers to the independent governments of the First Nations. We cannot tell them they will now be able to exercise the inherent right of self-government and, at the same time, ensure that federal laws or regulations will prevail.

It has to be one or the other. You can't half-recognize the sovereignty of a nation. Nor can you half-recognize a nation's inherent right to govern itself. You can't press on the accelerator and the brake at the same time. At some point, that approach becomes untenable. So, my amendment is intended to delete this provision and grant full law-making powers to First Nations governments.

We have always said that First Nations governments should be real governments, in the literal sense of the term. We have also always said that the right to make laws should not be limited to municipal policy areas. That is not what the First Nations aspire to. The First Nations want their members to be governed by their own people, so that they can determine what is needed on their own and rebuild the democratic institutions that were in place before they were destroyed through the events of history and the Indian Act.

Our duty is to ensure that the inherent right of self-government is exercised by the Aboriginal nations, for the Aboriginal nations, and that our only role is to support the efforts of First Nation communities to put a real government structure in place.

Personally, I can't see this government structure reflecting that of a municipal government. That is not at all what is meant by self-government and respect for ancestral treaties. When we talk about respecting the rights of the Aboriginal nations, we are talking about their right to govern themselves, to define what is right for them in terms of economic development, for example, to ensure the well-being of their members. It's the power to decide what is best for them in terms of social development or an education policy that will secure a better future for their young people. It is also the right to choose the best possible arrangement with respect to developing social housing and programs that are often needed to restore an Aboriginal language lost over 130 years of the Indian Act. It also means ensuring that the First Nations can rebuild their spiritual institutions, because when the Europeans arrived, they imposed their God, their way of dealing with spirituality, and pursued a systematic policy of negating Aboriginal spirituality. We need to help the Aboriginal nations restore that lost spirituality.

¾ (2015)

A number of them have revived these traditions that mean that the Aboriginal peoples are whole peoples; policy cannot be separated from spirituality or ways of governing. All of these things are closely linked.

But in order to understand all of this, we would need to be Aboriginal, and we are not. That's why trying to impose our institutions and our ways of doing things, as we are doing in this Bill, is the worst possible thing we could do. We cannot impose on Nations worthy of the name, as Aboriginal nations are, the values of another nation, and specifically, Canadian values, as we are attempting to do with Bill C-7.

And it's quite surprising to see people talking out of both sides of their mouth--in other words, saying out of one side of their mouth that the Aboriginal peoples have a right to govern themselves and that we recognize a third order of government in Canada, but out of the other, denying them the right to build their nations as they are perfectly entitled to do, particularly when they have been waiting for this to happen for many years.

I talked earlier about some of the findings the Pepin-Robarts Task Force, going back to 1979, I also read you passages from the report of the Joint Committee in 1983. That goes back 20 years. How much analysis, how many studies were commissioned after that? How many bills were tabled and then ruled out? How many White Papers have there been, even the 1969 White Paper, which was completely dismissed and is coming back again now, in a modern version, in the form of Bill C-7? There was also the Report of the Royal Commission on Aboriginal Peoples.

That is starting to be quite a lot of studies, studies that at some point look almost like anthropological studies. We know what the problem is : we never managed to implement solutions that satisfy the Aboriginal nations. It's high time we stopped taking that approach, because it will never work. We are just exacerbating the feeling of hostility already felt by the Aboriginal nations. They see us going through this process in committee, and they're exasperated by it; we would be for a lot less.

We are talking about their future, and yet on the other side of the room, Members are talking about everything else but their future. They're talking about movies, the weekend, they're reading the newspaper, and what have you, and yet they get upset at the idea that a First Nations member could be completely fed up and, in light of what you're imposing on him, have the feeling he is nothing but a puppet, who has no right to speak or even hear, and who isn't even capable of thinking.

The demonstration we had earlier is the result of that exasperation. It's not really hard to understand that kind of thing. I can tell you that if I had been treated that way, as a Francophone Quebecker, and a sovereignist to boot, I would have done something about it a long time ago, and I would have climbed up on the table. You can't treat people who are members of nations that have been recognized as such by the courts, including the Supreme Court of Canada and the United Nations, with the kind of disdain you have demonstrated and get away with it. Who do you think you are to treat people with such scorn, demonstrate this kind of cynicism and arrogance, and engage in the kind of odious behaviour we witnessed earlier?

My amendment is intended to restore some intelligence and dignity to this Bill, although it is especially the dignity of the First Nations that matters to me. As for the dignity of Parliament, I am starting to find it a lot less impressive than it is at other times, particularly when I see Members of this eminent institution behaving the way followers of apartheid did with respect to the emancipation of South Africa. To me, that is a real shame. I never thought that in this Parliament, I would see that kind of mindset or sarcasm, and those tired, almost racist reflexes in some Members of Parliament.

I hope you will at least vote in favour of my amendment.

¾ (2020)

This is probably the last of its kind, because the other amendments do not deal with the question of federal laws and other regulations taking precedence over laws made by Aboriginal nations.

[English]

The Chair: Thank you, Monsieur Loubier.

Mr. Martin.

Mr. Pat Martin: Mr. Chairman, I appreciate my friend from the Bloc introducing this amendment, because it resembles quite substantially my own thoughts regarding subclause (2) of clause 16, clause 17, and now clause 18, in which we sought to delete this particular language, although it finds itself as subclause (3) in clause 18, dealing with the conflict made under this clause in the act of Parliament, etc., etc. What bill should have primacy, the bylaw or the act of Parliament?

The reason I introduced this same thought in clause 16 and clause 17 is because it was brought to our attention by presentations made to the committee. I believe that's the same reason that Mr. Loubier tried to represent those views that were brought to our attention. It was out of respect for the legitimate concerns brought forward and out of frustration about the lack of willingness on the government's part to entertain the voice of first nations virtually anywhere in this bill.

I notice significant presentation made, again, on behalf of the Assembly of First Nations. They cited that “The difficulty with this provision is that it seems to empower bands to make laws that are limited to those specifically enumerated...” in clauses 16, 17, and 18.

Of course, inherent rights are neither granted nor delegated by such a provision, since these rights existed prior to European contact and are not based on legislation. Inherent rights are not limited to those enumerated in clauses 16, 17, or 18.

They go on to say: “Given the highly controversial nature of this provision and sections 17 and 18, and the fact that Bill C-7 was intended to facilitate aboriginal governance rather than curtail it, it is recommended that the language of section 16...”--and section 17 and section 18--“be amended”, to clarify that nothing in these clauses is supposed to limit inherent powers in any way.

That's the reason my previous motion dealt with a non-derogation aspect and a “for further clarity” type clause. It was to make it abundantly clear that nobody around this table should be participating in any exercise that results in limiting inherent powers or putting any limits on inherent powers that exist already, or our recognition of those powers.

They go on to say: “Moreover, to the extent that the powers set out in section 16”, and section 17 and 18, “are co-extensive with inherent rights of self-government, subsection (2)”--and in the case of clause 18, subclause (3)--“is capable of being interpreted in a manner which is inconsistent with section 35 of the Constitution Act, 1982, and must be clarified to ensure that it does not purport to affect inherent self-government rights.”

In other words, this is one of the very clauses we're being cautioned is likely to infringe upon section 35, or is inconsistent with section 35 of the Constitution Act.

They go on to say--and we should be paying attention to this--that the Assembly of First Nations' legal opinion is that “the enumerated powers leave out certain areas which are of traditional importance for First Nations,”--and I've tried to make that clear in clauses 16 and 17--“including the keeping of fish and the regulation of gaming”.

Neither of those things find their way into this. The keeping of fish and the regulation of gaming is not the regulation of game, because the conservation of game is contemplated in clauses 16 or 17--clause 17, I believe. This is a regulation of gaming.

“Finally,” the AFN points out, “the conflict of laws provision in section 16...,”--and sections 17 and 18--“by granting universal paramountcy to federal laws and regulations, is inconsistent with the recognition of self-government rights and it fails to give adequate weight to the central importance of the areas in which these band laws are to operate.”

¾ (2025)

Mr. Chairman, we fail to consider that very grave opinion that was brought to our attention. We neglected to consider that in failing to support the amendments I brought forward to clauses 16 and 17 and in what we see as an unwillingness to support Mr. Loubier's amendment to clause 18--which seeks to delete the reference to “in the event of a conflict”--automatically the federal government will win in the case of a conflict. We object to that and we've proposed alternatives to that. We've proposed every possible alternative and permutation and combination of alternatives that may give some relief to the absolute nature of this particular clause.

This clause says:

So the act and the regulations prevail in all instances, never mind what the nature of the conflict is, and never mind if the conflict might have to do with resource management or something that's clearly the jurisdiction of the band and council to administer.

We should be starting our debate regarding economic development for first nations with management of land and resources and we should review the most pertinent, timely, and topical research available on these issues.

In the overview of natural resources that I have found in the AFN and INAC joint initiative for policy development document it states that “Canada continues to be the world's leading exporter of forestry products. Forestry remains a key to the overall Canadian economy and accounts for over 800,000 jobs.”

According to INAC, of the 3 million hectares of reserve land in Canada, about 1.4 million is classified as forest lands and may be capable of producing commercial-scale forestry operations. But in recent figures--1995-96 figures--stumpage revenues totalled only about $8 million from 140 timber permits and licences, largely from western Canada.

So this is an area of resource management that, in my opinion, is under-utilized in terms of providing an economic benefit for first nations. If fully 1.4 million hectares of reserve land--and that's not even talking about traditional territories, we're just talking about the specific reserve land--has this incredible wealth of forestry opportunities, now the transfer of the disposition of those timber revenues should be under the control and direction of first nations. Surely we can agree on that.

But in the advent of any conflict between the rules about the disposition of revenues from timber that may be in conflict with any other existing conservation laws or rules pertaining to forestry--provincially or federally--it's the other law that will have primacy.

What kind of self-government, what kind of self-determination is that, if in every event and every time there is a conflict, you lose? That's some set of rules to stipulate yourself to. In the event of a conflict, you lose. That's the message we have here, not that in the event of a conflict we will try and determine who's right and who's wrong. In the event of a conflict, you lose.

People are getting sick of hearing that, Mr. Chairman. I'm getting sick of saying it because we're getting sick of seeing the same clauses come forward in virtually every aspect of this bill: that in any event--no matter what happens--first nations lose and government wins. Apparently that's the way the minister wanted it. That's the way the minister wanted it designed, just in case there was any possibility that in some instance the band and council may be right and have fully legitimate points to make. But when it's determined there's a conflict, when there are two competing claims, we know which claim is going to win, because they've made it so. They've anticipated and dealt with that eventuality very cleanly in no fewer than three different sections of this bill.

We've read with great interest the opinions of many of the presenters who came before the committee. We in the opposition parties seem to be the only parties that take seriously the recommendations made.

¾ (2030)

On the amendments dealing with laws pertaining to band governance, I note that when questioned, Mr. Johnson, our official here from DIAND, said:

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

I let it go when Mr. Johnson said that on February 11, but I can see now that we require this information to be fully informed in how we deal with these amendments. So I'd like to know if the government officials would be able to table with the committee a complete list of all these pilot projects.

The Chair: Thank you, Mr. Martin.

I missed you. You got an extra 30 seconds. I'm not usually so negligent.

Mr. Vellacott, I think you had asked for--

Mr. Maurice Vellacott: I had. Am I next?

¾ (2035)

The Chair: You're next.

Mr. Maurice Vellacott: Thank you.

I had a question of Mr. Johnson. This is such a long and wordy clause here. I'm wondering what is prevailing at the end of the day once this is said and done here, the original clause that is suggested be amended. So it's an act of Parliament, a conflict between a law made under this section and an act of Parliament, and I guess it could be some other act of Parliament, any act of Parliament. Is that correct?

Mr. Warren Johnson: Yes.

Mr. Maurice Vellacott: Okay.

Also, is it a conflict with any regulations under this act, as well? It goes on to say “an Act of Parliament, any regulations under this Act that are applicable to the band or any code adopted by the band”.

Mr. Warren Johnson: Yes.

Mr. Maurice Vellacott: Is it in conflict with itself, then?

Go ahead.

Mr. Warren Johnson: On the second part, in terms of the reference to a code in regulation, you will note that in clause 18--and my colleague Mr. Salembier may be able to comment further--the issues listed in that section almost without exclusion, potentially without exclusion, are the subject of consideration in the codes that first nations may develop under the act. When they are, the community development, consideration, and ratification of those codes are meant to guide the operation in this area and the operations of government.

The laws in subclause 18(1) are specific law-making areas that would allow the chief and council to give effect to the code. So, for example, in terms of election procedures, conflict of interest, the other references that were earlier in the code sections that we discussed, because of that, it is clear and this point clarifies that the intent is that the community consideration of the general rules to guide these areas in the code should take precedence so that the specific law-making undertaken by chief and council under clause 18 should not conflict with the code dealing with the same subject matter that the community would have ratified.

The regulation reference here is in relation to the regulations that would serve as a fallback code for those first nations that decided they didn't want to develop their own. The same consistency should be maintained. For example, if there's a form of election procedures developed by a first nation in its code, then the specific election rules in clause 18 should be consistent with that.

So there are really two parts here, one referencing inconsistency with an act of Parliament, and the second, the question of maintaining consistency between the three code areas, specifically the government operations code and the law-making in this area.

Mr. Maurice Vellacott: It's talking about internal consistency. That's what it is.

Would this have been better to be divided up or cut into two different sections, just for ease of not being so long and run-on, that kind of thing, or is that just the way legally it's...?

Mr. Warren Johnson: I defer to the legislative drafters on this. This is the way they--

Mr. Maurice Vellacott: It's the way they chose to do it.

Mr. Warren Johnson: --chose to draft it.

Mr. Maurice Vellacott: It just seems so long and almost convoluted. I understand what you're saying now.

Basically, if I understand it correctly, it's about internal consistency, that you're wanting the code that's written not to be out of sync with the umbrella rules that are there.

The Chair: There are too many conversations going around, especially at this end of the room. We're going to have a long night, it would appear, so let's be careful.

Sorry about that, Mr. Vellacott.

Mr. Maurice Vellacott: Thank you, Warren. That has helped me to understand.

I just think it would have been better if there were a way to get it under two different clauses there, because it's rather long.

Thank you.

[Translation]

The Chair: Mr. Loubier.

Mr. Yvan Loubier: Yes, Mr. Chairman.

Just to conclude my comments on this amendment, it is intended to remove the very obvious predominancy of federal laws and regulations over laws made by First Nations governments. As my colleague, Mr. Martin, mentioned earlier, many of the people we heard from in our consultations, and in the briefs that we received and read, said they had a lot of concerns about Bill C-7. They were concerned that some clauses of the Bill violated the Canadian Constitution, the Charter of Rights and Freedoms, and provisions aimed at protecting the First Nations aboriginal and treaty rights, as well as the inherent right of self-government.

We were cautioned about the Bill, and not by insignificant witnesses, since among those who raised concerns were the Canadian Bar Association, the Quebec Bar and the Aboriginal Bar Association. Even Warren Allmand, the former Minister of Foreign Affairs, cautioned us against this Bill, saying that he saw in this Bill some pretty clear contradictions with Sections 25 and 35 of the Constitution Act, 1982 with respect to Aboriginal matters. And as a former Minister of Indian Affairs, he knows what he is talking about; I have no doubt of that.

He also cautioned us and made the point, as an experienced politician, that Bill C-7 was doomed to failure. Indeed, Mr. Warren Allmand was somewhat of a visionary when he told us that Bill C-7 was doomed to failure a few weeks ago in Montreal. He cited a number of reasons--and another one has been added today--but the fundamental reasons he gave are as follows.

First, you cannot impose legislative provisions on the people directly affected by them if the vast majority of those people don't want them; that can only be done when there is a consensus around those provisions. The First Nations are opposed to Bill C-7.

You can't simply deny everything that has happened in recent years, and particularly the findings of major inquiries, like the Royal Commission, which were that our relationship with the First Nations had to be rebuilt on a totally different basis, not a colonialist basis where the oppressor-oppressed pattern of interaction prevails, as Bill C-7 is proposing. I believe Mr. Allmand really put his finger on the fundamental issues associated with this Bill.

Over the weekend, Mr. Paul Martin did exactly the same thing during the 90-minute debate with the two other Liberal Party leadership contenders. He added his voice to those of the opponents. But because he is strategic, he said that he could not vote against the Bill, for fear of triggering an early election. And with Mr. Chrétien, that fear is a well-founded one, because politically, Mr. Chrétien's behaviour has not always been particularly kosher, such as when he called an election in 1997 when we, in the Bloc, had just chosen a leader for our party. That's the kind of decision Mr. Chrétien likes to make. Especially since Bill C-7 is a bill, as others have pointed out, that bears quite some resemblance to the 1969 White Paper, which was his baby. But I'm not sure what type of baby he is intending to leave posterity. I get the feeling that if this is his legacy, it is likely to leave quite a few scars, in terms of his prime ministerial decisions. But this certainly wouldn't be the first time he made a major gaffe, as prime minister; he's done it many times before. He has played a lot of other dirty tricks in his political life, but this would certainly be the icing on the cake.

I just want to take this opportunity to repeat what Mr. Martin said on the weekend. He said :

¾ (2040)

[English]

“This is a good example of how to take what is a good issue and turn it into a quagmire.”

What does that mean, “quagmire”?

Mr. Pat Martin: A swamp.

Mr. Yvan Loubier: Okay. So it's good for the garbage?

Mr. Pat Martin: A garbage swamp.

Mr. Yvan Loubier: Okay.

[Translation]

It couldn't be clearer.

[English]

“Quagmire”--that's a new term for me. It's very cute.

Mr. Pat Martin: It feels nice to say.

Mr. Yvan Loubier: It's cute, but not--

Mr. Pat Martin: It's cute, but it's ugly.

Mr. Yvan Loubier: Yes.

[Translation]

That's what Mr. Martin said. It wasn't a Bloc MP or Pat Martin who said it; it was the contender for the position of Prime Minister who did.

I would like to know how many people sitting at this table disagree with what the aspirant Prime Minister said, and how many would be prepared to say publicly that Mr. Martin is totally out to lunch, that he's got it all wrong, and that he doesn't deserve to be Prime Minister of Canada.

A while ago, I heard one of my colleagues--the Parliamentary Secretary, to be exact--accuse Mr. Martin--the Mr. Martin from the NDP sitting over there--of not being worthy of one day being Prime Minister of Canada because he opposed the colonialist and degrading vision put forward by the Liberals. Does the comment made to Mr. Martin of the NDP also hold true for Paul Martin, who would be the next Prime Minister? If that's the case, I would like to hear you stand up and publicly denounce Mr. Martin.

Robert Nault had the courage to do that, but I think it's probably because he didn't really realize what he was doing. Robert Nault's political career is finished; that's for sure. How many others at this table, who are prepared today to support this Bill, would be willing to come out publicly and denounce Paul Martin, saying he has got it all wrong, that he is not worthy of being Prime Minister, and that he just doesn't get it?

For someone with the support of more than 50% of Liberal MPs, the support of practically all Liberal senators, and who controls about 95% of Liberal riding associations, I can certainly understand that you would have problems doing that.

But why is it so easy, for example, behind closed doors as we are here, not to speak on our amendments, not to know what Liberal colleagues really think about our amendments, and to claim that this is the way you defend your convictions? I must say I have a problem with that.

But let me come back to Mr. Martin's statement. He said he would not enforce this Bill. Does that mean he wouldn't enforce it even if it were passed, because he is going to be appointed Prime Minister in the late fall? Now if it happens that he doesn't enforce this Bill, or whatever piece of legislation is passed, what kind of message does that send to the First Nations? Well, the message is that we don't need to prepare for implementation of Bill C-7, that this is a piece of legislation that is totally unimportant, that it will be set aside, and that we are waiting for a new Administration to take over and take control of the affairs of state, so that all the work we're doing now is absolutely pointless, we are working in a total vacuum, and that talking about this, or even passing the Bill at second and third readings will be an absolute waste of time, because the next Prime Minister has said he would throw this legislation in the garbage and hold real consultations with First Nations.

If I were the First Nations, I wouldn't bother making the effort to implement the provisions of Bill C-7: it's headed for the garbage can. The man who wants to be Prime Minister has said so. And yet here we are, at 8:50 PM, still discussing something that is going to disappear into the woodwork, barely eight months from now, that will not be part of the legislative landscape in Canada, and will not serve as a basis for redefining the future of our relations with the First Nations. So what are we doing here at 8:50 PM, and what have we been doing for the last three weeks, sitting until midnight or 4:30 in the morning to examine amendments to the clauses of a Bill that, since yesterday, can only be considered to be hot air, since the person who will be leading the Canadian government in a few months doesn't want it, sees it as totally irrelevant, and doesn't believe, as Prime Minister, that this should be the basis for rebuilding our relationship with the First Nations?

In Question Period this afternoon, I heard several Liberal colleagues say that Mr. Martin's position was purely political, that it all has to do with the leadership race. But I have news for Mr. Martin. If Mr. Martin says that he would tear up the agreement, that he would tear up Bill C-7 upon becoming Prime Minister, but then decides he is not going to do that, all the members of the First Nations are going to be on his back, because he didn't make that commitment just once; he made it three times, using different terms, including the term quagmire that I have just learned.

¾ (2045)

[English]

The Chair: I see Mr. Cullen on a point of order.

Mr. Roy Cullen (Etobicoke North, Lib.): I wonder if I could get some clarification. I know that in the chamber of the House of Commons you're not allowed to refer to the name of a member. Shouldn't the member opposite be referring to the member as the member for LaSalle--Émard, rather than using his name?

The Chair: The practice has been that we've allowed it, if the member is not a member of the committee, and this morning it was all praise about Mr. Paul Martin from the opposition. I didn't interject then, and it would be unfair for me to interject now.

For members around the table, I try to stay away from that.

[Translation]

Mr. Loubier, you have 30 seconds left.

Mr. Yvan Loubier: Mr. Chairman, I just hope that my colleagues will vote in favour of this amendment. But in any case, whether they vote in favour of it or not, it won't make any difference, because eight months from now, this Bill is going to be exactly where it should be--in other words, in the garbage, because the next Prime Minister has made a commitment to scrap it.

The only thing I really deplore is that we are continuing to work on something as stupid as this Bill.

¾ (2050)

[English]

The Chair: Mr. Loubier, to the question. Are we ready for the vote? A recorded vote on BQ-35, page 153.

(Amendment negatived: yeas 2; nays 9)

The Chair: You will note that NDP-45 is identical; therefore it's been dealt with.

We are now on NDP-46, page 155.

Point of order, Mr. Hubbard.

Mr. Charles Hubbard: From my reading, NDP-46 is identical to NDP-42, and we've already--

The Chair: What page?

Mr. Charles Hubbard: On page 144.

The Chair: I'm prepared to suspend for five minutes, but maybe witnesses could assist. We're comparing page 144 to 155. Do you have them numbered the same way we do, NDP-42 to NDP-46? If it can help resolve....

Yes, Mr. Martin. Perhaps you can help us resolve this.

Mr. Pat Martin: I'll simply say that to save people the trouble of trying to go through it word by word, I think the language is the same. However, I would argue that because it's dealing with two separate clauses covering very different subject matter, it's relevant to debate the effect this language would have on clause18 as compared to the effect this language would have on clause 17.

These are two different things. There is the list of what a council of a band may make laws in relation to, and clause 18 deals with the laws regarding band governance and the election of members, etc. In clause17 you were dealing with the conflict that may come up in dealing with laws pertaining to trespass or the management of timber and the disposition of commercial revenue from natural resources. That's a completely different thing.

The Chair: Thank you, Mr. Martin.

Can you be of assistance on this?

Mr. Warren Johnson: The wording is identical.

The Chair: It's identical. Okay.

The effect of having it in different clauses.... Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: We do have our legislative counsel here. She should be the one answering the question as to whether the amendment is in order or not.

The Chair: That is not a point of order.

Mr. Yvan Loubier: The experts are not the ones…

¾ (2055)

The Chair: It is the Chairman's job to respond and I am asking for whatever help I'm able to get.

Mr. Yvan Loubier: And it's the Chairman's job to make all the decisions, is that it? Our legislative counsel is the person to give an opinion on this.

The Chair: No, she does not provide advice to the Chairman.

Mr. Yvan Loubier: But they are both judge and defendant.

The Chair: Turn off his microphone.

[English]

Mr. Martin, would you agree that we stand that amendment and come back to it? Could you agree to that?

Mr. Pat Martin: I could agree to that.

The Chair: Okay.

Will it delay this?

Mr. Maurice Vellacott: I'm not sure why. If we can deal with it, we might as well get on with it, because it's two different sections. I would think--

The Chair: I know, but I'm not getting an answer, and I can't make a ruling until I get an answer.

Mr. Maurice Vellacott: Well, I think it's pretty obvious that it's two different sections. You've got to go--

The Chair: I tend to agree. But we have experts here, and there's a reason for that.

NDP-46, we will deal with that. Mr. Martin.

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

This is an opportunity to amend clause 18 in what we consider to be a very meaningful and important way. We're of the view, Mr. Chair, that in terms of clause 18 dealing with governance laws, laws pertaining to band governance, it's particularly important that we should have respect for the primacy of those bylaws put in place by the band and council, as opposed to other rules and regulations that may apply, in particular under the Elections Act or other federal parliamentary acts or regulations.

I should point out in regard to acts or regulations that if there's a conflict that exists between the bylaws put in place by a council of a band as pertains to the election of members of council under the band's leadership selection code, for instance, and the Canada Elections Act, or any act of Parliament, or any regulations under that act of Parliament, then the regulations of the act of Parliament automatically apply and automatically succeed.

So it's frustrating to me that even though we've raised these legitimate issues here at first reading, when this committee received this piece of legislation after first reading instead of waiting until second reading, when we traditionally get it.... It's frustrating to me that we were assured, we were guaranteed, and we were promised some degree of flexibility, a greater degree of flexibility. That term was used in the House of Commons again today in answer to questions raised by the committee members.

The questions raised by members of the committee, by members of Parliament in the House of Commons today, were about what is driving the government. What has motivated the government to be so intent on passing this legislation in spite of overwhelming opposition from coast to coast to coast? What is possibly so critical? What is the national emergency associated with this bill that the government just has to ram it through in spite of all the legitimate concerns we've brought forward, even up to and including moving closure on this committee, making the rare move of having a committee, this committee, limited to time allocation.

The standing committee on aboriginal affairs is a parliamentary body, Mr. Chair, that has the power to hold hearings and to make recommendations regarding Bill C-7, and the fact that the bill was referred to the committee upon first reading meant that the House has not yet adopted the principles of the bill. The principles have not been established and forged through debate at second reading in the House of Commons. That gives this committee the freedom to comment in its report to the House on those principles as well the clauses for the proposed legislation.

I think we would be doing an incomplete job if we didn't comment on the principles of the bill, the principles we're supposed to be seized of and bound and governed by. One of those principles is our fiduciary obligation as members of Parliament stemming from the obligation of the Crown. The other is the honour of the Crown, a point I raised earlier: that I feel the refusal of the department and the minister to divulge all the documentation and all the research papers that we've asked for limits my ability to live up to my obligations, in terms of the fiduciary responsibility, to be informed and to act in the best interests of first nations.

If anything, the government is in conflict already, because they're operating and acting in their own best interests, not in the best interests of first nations. It's a little bit like the government being the employer of public servants and the legislators of laws pertaining to the employment of public servants. There's an inherent conflict in that relationship. It's a conflict that the courts have commented on in relation to aboriginal people and to the public service employees, two bills that are currently before the House of Commons.

¿ (2100)

In the one case, the parliamentary committee dealing with the public service bill, Bill C-25, felt strongly enough that they had an obligation to be well informed that they refused to continue their clause-by-clause analysis of this bill until such time as the government released all the documentation. In this case, no such courage has been demonstrated. No such willingness to be fair seems to have been illustrated by committee members--other than opposition committee members--to demand that this information be made available.

Following the tabling of our report in the House of Commons after this process--after this travesty of a process that's taking place now--the government then has the option of withdrawing the bill, because it's only a recommendation on the principles of the bill essentially, or simply leaving the bill on the order paper but not moving forward with the bill to second reading. Those are two options available to the government. Should they see the folly in this particular course of action with the direction we're going in now, those are two options available to them.

When we report back to the House they could simply withdraw the bill to great fanfare and celebration. In fact, that would be viewed, as the Bishop of Moosonee called it, as a gracious gesture of goodwill on the part of the government. The signal would be sent that we heard you, we asked for your opinion, we listened to it, and we heard you. That would be the message sent if the government simply withdrew this bill.

Or they could simply leave the bill on the order paper but not move forward with the bill to second reading, not schedule days in the House of Commons to advance the bill to second reading, and that would have the same effect. Perhaps that's the choice the government will choose in order to save face and not look like they've made a mistake, even though they have. That might be the option I would advise. I think the parliamentary secretary should advise the minister that might be the way to go.

Perhaps even a phone call tonight to the minister might be in order. If he's in his office now, we might want to inform him that there's consensus developing at the committee that we should recommend to the minister to simply let the bill die on the order paper and not move the bill to second reading at all. Because if the bill was withdrawn it could be revised and reintroduced at any future point as a new bill. In fact, we have been led to believe that first nations leadership would willingly participate in a true consultative exercise that dealt with the same issues we're dealing with in this bill.

If it's important that the government visit these particular issues, then there's a way of doing it that doesn't offend the entire leadership of first nations across the country. If the bill were withdrawn at this point it could be revised, revisited, researched, and the recommendations made in the many submissions could be incorporated into the bill so that it wouldn't offend the hell out of anybody any more. Then it could be reintroduced at any future point as a new bill.

As will be seen in the report, it's recommended that any of these options--that will be part of a report, I'm sure--could be employed rather than to go to second reading without dealing with the bill's severe and, we would argue, fatal defects. Because if we proceed with this bill as it stands, we've already had assurances, frankly, that it will never see the light of day and it will never be implemented. Maybe that's the best thing, because the dollar figures, the enormous cost figures we've been pointing to, will never be wasted then.

Other presenters--and I keep harping back to presentations made to the committee--who made representation to the committee said $110 million a year is $1.1 billion in a decade. How many houses, water systems, schools, etc., would that same money buy? That was a question asked of us. The government refuses to provide the House standing committee with the documentation for its estimates, so all we can go by is material leaked to us from the internal cabinet document that the $110 million per year figure is accurate. But we believe it's terribly low, because that's based on 633 first nations cooperating with the introduction of all these amendments to the way they govern themselves.

We predict, and we have been told to our faces, that there will be no such cooperation, there will be resistance, there will be opposition, there will be civil disobedience within the parameters of the law.

¿ (2105)

I have read into the record the new resolution by the Assembly of First Nations that gives licence to their affiliates to take whatever action they feel is necessary now to escalate the protest across the country, to take it from the stage we're at now to essentially whatever means they deem necessary, and we don't know what that includes or what limits are on that protest.

The Chair: Thank you, Mr. Martin.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: Mr. Chairman, my colleague, Pat Martin, and myself, as we were considering the clauses of this Bill a little earlier, referred to negotiated resolution of conflicts arising between the band and the Minister. In fact, that has been one of our primary concerns since we began analyzing this Bill. The idea here is to be prepared, in cases where the parties have a completely different interpretation--we're talking here about irreconcilable conflicts--of laws made by a third order of government and an Act of Parliament.

Based on what we were told by many experts who appeared before us, it is quite clear that the problems of inconsistency and contradiction between the provisions of Bill C-7, the Constitution, the Charter and a number of Acts of Parliament are so numerous that we should expect there to be permanent disputes between First Nations' members and the federal government. That being the case, it is even more important to provide for a conflict resolution mechanism. So, like other modern agreements, particularly in the area of trade, this kind of mechanism would be a means of resolving conflicts in an amiable, objective manner.

It is important to point out, with respect to the inherent right of self-government, that the Constitution and Charter of Rights and Freedoms support the strength of the law-making powers of the First Nations, and that support has been very evident over the last 20 years, given that time after time, court rulings, including those of the Supreme Court of Canada, have sided with the First Nations in terms of their wanting to vigourously and thoroughly exercise their inherent right of self-government. So, if the First Nations can eventually make laws in areas they believe to fall within their jurisdiction--which includes every possible policy area, given that they are real nations in the meaning of the United Nations--the possibility of conflict between Acts of Parliament and Aboriginal laws is probably very real.

So what should be done in such cases? Are they claiming that federal laws will take precedence? That approach won't stand up to court rulings either. It is absolutely clear, according to the Constitution, the Charter of Rights and many court rulings in this area, that the federal government does not have the right to oppose decisions made by the First Nations whenever it feels like it, when those decisions have been made in a perfectly appropriate manner, consistent with their rights.

In light of what we now know of the Bill and the many interpretations given by experts, we can almost certainly assert that there is a contradiction between the federal government's view of the powers the First Nations could exercise, and the way the First Nations view their powers under the many ancestral treaties they signed, and in relation to the inherent right of self-government.

The agreement with the James Bay Crees, the so-called “Peace of the Braves”, and the draft agreement with four of the Innu First Nations of Quebec are evidence that law-making powers consistent with the inherent right of self-government are not powers to be exercised in municipal areas of responsibility. The First Nations have no desire to become municipal governments, which was the approach taken in the 1969 White Paper.

¿ (2110)

As a third order of government is created, what the First Nations want is the ability to make laws in areas that affect their future and reflect their vision of that future. That means such fundamental policy areas as employment, economic development, social affairs, housing, international representation, and the defence and promotion of culture.

Internationally, there is currently a debate raging about cultural diversity. How is it that, in the international arena, the federal government attaches so much importance to cultural diversity, but in another context, it is not even able to recognize the rich cultural diversity that exists among Aboriginal nations and their contribution to humanity?

It seems to me that being as blessed as we are in terms of the cultural realities and diversity that exist here, we should be highlighting those cultures and those languages--that would be the greatest contribution we could make to humanity. We could even help the Aboriginal nations revive some of those cultural characteristics, so that they can rebuild and restore the vibrancy of their language, culture and spirituality.

Are we so blind as to be unable to see that we are in the process of reproducing, on a Canadian scale, the disasters of our own making that have taken place over the last 130 years? Is there no getting around this arrogance, the cynicism, this inability to properly analyze the situation when we had so many resources to ascertain the real needs of the First Nations, and when so many of the First Nations' rights have been confirmed in court rulings, and by international institutions?

How is it that as we sit here, we can't see that we are just reproducing what was done in the past, and that we will end up in a dead end in terms of our relations with the First Nations? That seems particularly obvious in the context of this debate and the kind of comments we've heard since we began clause-by-clause consideration of this Bill. The consternation and sense of humiliation felt by some First Nations' members should be indication enough that we are on the wrong track with Bill C-7.

And that is true even not considering the statements made yesterday by Mr. Martin, which sound the death knell for Bill C-7. We should stop our work immediately, particularly since an assembly of the Confederation of Nations will be starting tomorrow in Vancouver. And they will in fact be considering the governance bill and the current political environment.

Since this Bill is going to die off in eight months, if there is a fight to be fought, that fight should be to put an end to this work we are doing for nothing, that is only exacerbating the tensions that already exist between the federal government and the First Nations. How can people not be aware of that?

The greatest sign of our respect for human intelligence, and for the intelligence and discussions taking place among the First Nations, would be to put an immediate end to our work and suspend all debate on Bill C-7 until Thursday, until we have a clear idea of what position the First Nations will be taking in the current political context.

We cannot continue, in the same Kafkaesque manner, to examine the Bill clause-by-clause. It makes absolutely no sense to do that. It's like we're living in a surreal world here. Breton, who made surrealist films, would have found no better subject than this: clause-by-clause consideration of a Bill that nobody wants, that the man who will be Prime Minister eight months from now rejects out of hand, that the outgoing Prime Minister is determined to have passed, and that everyone rejects. Let's just say that we have all the ingredients here for a pretty amazing, surreal film that probably would have delighted Mr. Breton. By the way, the Breton I refer to is not the Auditor General of Quebec, but one of the fathers of surrealism who worked in the area of cinematography, among others.

¿ (2115)

We have talked about the exercise, by the First Nations, of the inherent right of self-government and of their law-making powers. And a little while ago, I had started to talk about the agreement known as the “Peace of the Braves” concluded with the James Bay Crees. In that particular case, it is quite clear that the powers the First Nations want to exercise are real powers.

[English]

The Chair: Thank you, Monsieur Loubier.

Mr. Martin.

Mr. Pat Martin: Mr. Chairman, are we at the stage of closing remarks on this particular amendment? That's what I understood.

This is NDP-46, the 46th attempt we've made to try to introduce substantial amendments to this bill. Again, I point out that this amendment is put forward in good faith and based on the genuine concern we had that subclause 18(3) is unfair, in that it predetermines the outcome of any conflict that may arise between bylaws made under this clause pertaining to matters such as the establishment of bodies, their composition, powers and duties, and the relationship to the band, bylaws pertaining to the delegation to any person or body of any of the council's powers under this act and the Indian Act. It pertains to bylaws made by the band dealing with the election of members of the council under the band's leadership selection code. It deals with bylaws made pertaining to the conflict of interest of members of the council and employees of the band, access to information under the control of the band, the protection of personal information under its control, the conditions under which the council may enter into commercial and other transactions, and any matter arising out of or ancillary to the exercise of powers under this subclause.

We believe, Mr. Chair, that having said that, having outlined the areas concerning band governance to which the council of a band may make laws pertaining to in clause 18, and then having subclause (3) follow, which says that in the event of a conflict between any law made under this clause, clause 18, pertaining to band governance, and an act of Parliament and any regulations under this act that are applicable to the band, or any code adopted by the band, the act, the regulations, or the code prevails to the extent of the conflict.

Mr. Chairman, I try to stay true to the submissions made to the committee by witnesses. One of those witnesses was Chief Phil Maness, from London, Ontario, who told the committee that the combined effect of clauses 31 and 33, clause 16, under law-making powers, clause 17, laws for band purposes, and clause 18, laws for band governance, will render any laws desired by the first nations unenforceable, even at their own instance. This is because Bill C-7 makes first nation codes or laws subject to the paramountcy of any other acts of Parliament in any regulations made under the First Nations Governance Act.

The parliamentary secretary has said that this is the way it should be. But what then do we make of the inherent power of self-government, which is recognized supposedly by the Liberal government? How can one say on one hand that they support and believe in the right to self-government, and then dictate that, if anything, first nations are allowed to make second-tier types of laws, because any laws that we make will have primacy over any laws that you make, anytime, anywhere, in relation to anything; even if it's a jurisdiction that we've specifically recognized is the proper jurisdiction of the first nation, it doesn't matter what laws you make, our laws will always succeed? Your laws will lose, our laws will succeed--this is the structure, the deliberate and conscious choice that the drafters of this legislation have built into this legislation.

Chief Hank Adams, of Canoe Lake, had concerns about the effect of this clause. “There are limitations in the terms of the bylaws”, he said. “For example, the bylaws are similar to municipal-style governance. We are negotiating on a government-to-government basis in the treaty negotiations to a third order of government in Canada,” --that's the stated goal and objective here--“not a municipality. Furthermore, in cases of disputes between first nations and the federal government, the federal government will have paramountcy through the Indian Act.“

¿ (2120)

As well, band authority still rests on reserve lands and not traditional territories: reserve lands—the small geographic region of just the reserve—not the territory of traditional use. He goes on to say “This is not a step towards self-determination of the first nations.”

I think there's great wisdom in the submissions of both Chief Phil Maness from London, Ontario, and Chief Hank Adams of Canoe Lake, who shared with us their concerns. If we were really acting in the spirit of getting this bill at first reading, we would be taking into consideration those serious concerns brought forward to us by these presenters and incorporating them into the bill itself—or at least into the final report of this committee, having concluded our clause-by-clause study and analysis.

We already have a structure in Canada in which on certain matters provincial law is supreme. In other matters, federal law is supreme. Those things are hashed out and negotiated in great detail between ministers of intergovernmental affairs, and it's an ongoing process. Only three years ago the federal government devolved the authority for labour market training to the provinces. This type of transfer of recognition of jurisdiction happens all the time. In the case of the province of Quebec, the federal government admitted that the Quebec people deserve the right to control their own Quebec Pension Plan. This has been recognized as the jurisdiction of the Province of Quebec.

Now we're asking people—and first nations presenters that came before the committee are asking the committee—to get their minds around the idea that we need to provide certain areas as the exclusive jurisdiction of and the right of first nations to have determination over, and to ensure that first nations law will be supreme in these examples. As Chief Adams notes, we will not have true self-government until we are willing to make room for first nations in this way.

We seem to be willing to accommodate the provincial and the federal matters. That same degree of negotiation and consultation must take place if we are to have a jointly recognized and jointly supported distribution or allocation of powers.

I took part in the exhaustive negotiations around the Charlottetown Accord—all five of the Charlottetown Accord hearings right across the country—where we beat this to death over and over again: what powers should go to what level of government, and what powers shall be shared. Some powers are federal, some powers are provincial, and some powers are shared. But in the minds of whoever drafted this bill, the federal government shall have primacy over any laws pertaining to any of the details of clause 16, clause 17, or clause 18.

I remind people who may be tuning in for the first time, that's pretty well all the law-making powers contemplated in this whole First Nations Governance Act: all the law-making powers for local purposes under clause 16, which deals with damage to property, activities in public places, local works, public utilities, residential tenancies, the regulation of business activities, etc.; all the law-making powers associated with band purposes, such as the conservation of natural resources, the preservation of culture and language, the residence of members of the band, who shall be considered residents of the band and other persons on the reserve, the rights of spouses or common-law partners and children who reside with members of the band; and all the powers under clause 18—the law-making powers regarding band governance, the right to establish bodies, the right to elections, set laws determining the election of members of council, etc.

Everything contemplated by clauses 18 and 17 and 16 is now subject to this qualifying paragraph at the end of all of these clauses, which says that in the event of a conflict between the laws we just recognized you have the right to make...if there's any conflict between those laws and any act of Parliament, or any regulations under an act, the act of Parliament—the federal law or regulation—shall always win out and have primacy.

¿ (2125)

I don't know how many times I have to say it before it starts to resonate with people that there's something terribly wrong with that picture. It's a contradiction.

The Chair: Thank you, Mr. Martin.

(Amendment negatived: nays 8; yeas 2)

The Chair: We now go to amendment NDP-47, on page 156.

Mr. Martin.

Mr. Pat Martin: Amendment NDP-47 gives me the opportunity to explain to members on the other side why we should amend subclause 18(3).

In a substantial way, I seek to amend subclause 18(3) to actually reverse the onus 180 degrees or to reverse the effect of what's proposed in the bill. As we find it, Bill C-7 guarantees that in the event of a conflict, the government's side shall prevail every time, or that the government's rules and regulations shall have paramountcy over any rules and regulations passed by the band and council.

We had sought to amend that by introducing what we thought was a reasonable amendment, which said that in the event of such a conflict, a conflict resolution mechanism should be negotiated between the band and the minister, and that the conflict should be resolved through that conflict resolution mechanism. But it was just rejected by Liberal Party members of the committee, who decided that they preferred the bill the way it's written, so that the government wins every time, and that we don't even entertain the notion that in the event of a conflict, sometimes maybe the band's right. But no, the government's members prefer that in every event of any conflict, the government shall always be right. It certainly gives some direction here that there's really no hope in appealing, because the legislation will state quite clearly that in the event of a conflict, the band is always wrong. That's the goodwill that we're starting out with here, as we go forward with this bill.

I suggest in this amendment that in the event of a conflict in the areas of exclusive jurisdiction recognized by this act, it should be the first nations who have the benefit of the doubt. The subclause would then say that the law made under this section shall prevail to the extent of the conflict. I think that this is an important and significant shift, and that it is perhaps more in keeping with both the preamble to this bill and clause 3 on the purposes of this bill. It would also be more in keeping with some of the recent Supreme Court decisions.

Let's look at the Supreme Court decision in R. v. Van der Peet, where the court instructed that the interpretation of aboriginal and treaty rights must be “generous and liberal”. This is “liberal” with a small “l”, because there's nothing generous about the Liberal view of first nations' aboriginal and treaty rights that I've seen so far. The interpretation must be generous and liberal, and doubts should be resolved “in favour of aboriginal peoples”. That's the Supreme Court decision in R. v. Van der Peet.

In the Guerin decision, the fiduciary principle was clarified so that the Crown is required to act in regard to first nations in a way that best preserves the honour of the Crown and limits or prevents the exploitation of aboriginal peoples and obligations.

In the Sparrow decision, aboriginal rights to resources were identified as priority rights to resources, limited only by conservation requirements. In the argument about fish, this is where the government will have the first obligation to conservation, then aboriginal people will have secondary rights. What they failed to include in this particular bill are the rights to commercialization of fish, so that aboriginal people can benefit from and profit by the sale or exploitation of the resource, rather than simply manage the resource.

In the Delgamuukw decision, the notion of aboriginal title was confirmed and given some definition. Specifically, this decision states that “Aboriginal title is a right in the land and, as such, is more than the right to engage in specific activities which may themselves be aboriginal rights”. So Delgamuukw extends the right beyond those things specifically itemized here, but there's nothing in the proposed language in clauses 16 to 18 that would recognize and affirm Delgamuukw.

¿ (2130)

Finally, in the Marshall decision, the court broadens the interpretation of treaties, finding that “The fundamental principles underlying treaties, such as aboriginal economic self-reliance, are key determining factors to properly interpret treaties”.

While this overview just provides a sketch of some of the complex jurisprudence in this area, it's clear that a new framework is emerging—a new and exciting framework to some of us, Mr. Chairman. Some of us welcomed delving into this new landscape, this new framework being crafted by the courts, unfortunately only after long, agonizing, decades-long struggles in many cases. There's been very little willingness demonstrated on the part of the federal government to reach these same conclusions by negotiation and by acknowledgment or by agreeing upon the meaning and definition of section 35 of the Constitution. We're leaving it up to the courts to do that for us.

The reason the negotiating process is taking so long, in terms of arriving at settlements with the hundreds and hundreds of outstanding claims, is the stubbornness on the part of the federal government to cede anything, whether it's control over natural resources, etc.

I think they're misreading the mood of the public. I think the public is ready. I think the public is more aware, if not of the specifics of these rulings, nor could they maybe name the specifics of Supreme Court cases, but the attitudes found in the Supreme Court rulings have permeated and resonated throughout Canadian society until there's a willingness to bring first nations people along into the mainstream economy and prosperity of Canada.

Even if you're not going to act for the moral and ethical reasons of doing what is right, then they will do so for the economic reasons of having a permanent underclass and all the predictable consequences of having chronic long-term poverty in our midst, especially in the inner cities of our major cities, where it's so abundantly noticeable. Middle-class Canadians are being motivated and are more willing to take the steps to act for their own enlightened self-interests—for security reasons, for safety reasons, for the multitude of predictable consequences of poverty such as crime and violence associated with chronic long-term poverty in our inner cities. For those reasons, then, people are saying that we're making a mistake in having created a permanent underclass of poverty and trying to fill the jails, trying to lock up a whole generation of young aboriginal males. There's no future in that.

Here we have this incredible contradiction of skill shortages and labour market shortages all over the place to the point where we have to crack open the gates for increased immigration to fill these labour shortages. Yet we have an aboriginal population, overwhelmingly under the age of 30—disproportionately compared to the main population—underemployed to 85% and 90%. There is this huge burgeoning population of first nations youth who desperately need to be welcomed into the mainstream economy, into the workforce, into the labour market. Instead of making that overture to include people and to elevate the standard of living of first nations, we're just going to say we'll open the doors and seek out more immigration.

I'm not opposed to immigration, but surely we could meet the needs of industry and meet the needs of engagement of first nations into the economy if those two things were matched, if that natural connection were made. Instead we're doing nothing to enable these things, Mr. Chairman. We seem willing to spend half a billion dollars to simply offend and annoy people.

Now listen to the comments of National Chief Matthew Coon Come when he presented to the committee. When it was made apparent that we were going to get this bill at first reading and that there was potential for flexibility and for still establishing and reaffirming the principles associated with the bill, Matthew Coon Come said:

We were also interested observers in the recent debate and activity about restoring democracy and independence to parliamentary committees. Under these circumstances, we fully expect the committee to embrace the opportunity to give the first nations a real voice in this process by listening to them and then reflecting their views in your report and recommendations.

¿ (2135)

The Chair: Thank you, Mr. Martin.

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier Thank you, Mr. Chairman.

I like the amendment moved by Mr. Martin. In other sections of the Bill, we have already presented similar amendments, because we firmly believe, unlike what federal lawmakers seem to believe, that this type of provision, that provides that if a law made by a third order of Aboriginal government is in conflict with provisions of an Act of Parliament or federal regulations, that the federal laws or provisions will necessarily prevail, is not a good idea.

What we want to do, is reverse that process. Thus when the provisions of an Act of Parliament are in conflict with those of an Aboriginal law, the legitimacy of the Act of Parliament would be questioned. In fact, in the Special Committee's report in 1983, the federal government and First Nations representatives were urged to be bold in defining what Aboriginal governments wanted to exercise in the way of powers under the inherent right of self-government, and their Aboriginal and treaty rights, and then to see whether there could be any incompatibility between what we had laid out as Aboriginal powers, the Indian Act, and Acts of Parliament, in order to make any needed adjustments. That is what is meant by being bold; not telling them that they can exercise their inherent right of self-government by having certain law-making powers, but that if their laws are inconsistent with federal laws or regulations, that federal legislation will prevail. That approach flows from a completely different state of mind and is one the First Nations view with hostility.

So, if we had really done all the spade work, as the report of the Special Committee and subsequently the Royal Commission on Aboriginal Peoples both suggested, we would have taken bold action. The First Nations would have put down on paper the powers they want to have, the powers of a true nation, and after that, to ensure that they could exercise those powers quickly, we could have adjusted the laws that are currently in effect and gradually abolished the Indian Act.

But what we are now being presented with as a course of action is not that at all. I'm extremely disappointed to see that what Bill C-7 is proposing does not involve a devolution of true powers to a true nation, but only the kinds of powers that could be exercised by any municipality in Quebec or Canada. This is not what the First Nations were expecting, and the different agreements we have reached in Quebec, notably with the James Bay Crees and the Innu in various parts of Quebec, lead us to believe that the First Nations want a lot more than the opportunity to exercise municipal powers. They want real powers under real legislation that would be there to defend the Aboriginal nations, defend their members and their long-term sustainability.

Indeed, in the “Peace of the Braves” agreement, it is quite amazing to see what was achieved through negotiation and through the demands of the James Bay Crees in relation to their inherent right to self-government. The result was not half-powers, powers that could be exercised but then thwarted by a federal decision, supposedly for being in conflict with an Act of Parliament--certainly not.

In the “Peace of the Braves” agreement, there is, first of all, recognition of the Cree Nation in both the preamble and the body of the legislation that led to the “Peace of the Braves”. It is explicitly stated, in black and white, in the Bill itself, who developed the agreement known as the “Peace of the Braves”.

¿ (2140)

There is also recognition of the Cree Constitution. A Cree Constitution has been developed by the Crees, by this First Nation in James Bay. There is recognition of the true Cree government. So, this is not a municipal government, but a Cree government with very broad range powers, jurisdictions and lands over which it can exercise those powers. There are not superficial powers given to them through the generosity of a conqueror who still thinks he is living in the 17th century, through the great generosity of the federal government, in terms of the powers assigned to the Aboriginal nations and their exercise of the inherent right of self-government. No, what we see in this agreement is explicit, legal recognition of a government, with the kinds of powers devolved upon any true national government.

So, that is what is laid out in this agreement in terms of the explicit jurisdiction of the Cree people over their own land. The Crees administer their system of justice, their environment and manage their resources, which are often non-renewable resources. The Crees are responsible for economic development, and the opportunities that should be provided to young Aboriginals--opportunities that simply aren't there now. Go and tell the thousands of young Aboriginals that are waiting for a response from the federal government for an opportunity to attend university, because there are no more funds available to allow them to improve their lot and give their communities the benefit of their knowledge.

The Crees are also given exclusive authority over culture. And as for family policy, it isn't a half-power they are given; no, the James Bay Cree First Nation is given jurisdiction over all aspects of family policy on its own territory. It is given exclusive jurisdiction over transportation on its lands, and exclusive jurisdiction over taxation, human resources development, land development, social development, including social housing, and--hold on to your hats now, those of you who are still stuck on this notion of municipal governments--international affairs. The James Bay Crees argued the Gérin-Lajoie thesis with respect to the international extension of domestic powers. Having given themselves domestic powers to exercise on their territory in such areas as education, economic development, and the family, they can, by extension, exercise those same powers internationally. That is the Gérin-Lajoie thesis that Quebec has consistently used since it was first presented, but that the federal

So, looking at all of that in relation to Bill C-7, one can only conclude that this Bill is on the wrong track altogether. On the other hand, the agreement I just described to you that was signed with the James Bay Crees is right on. The recommendations of the Special Committee on Indian Self-Government are also right on in terms of the comprehensive initiatives the Erasmus-Dussault Commission on Aboriginal Self-Government urged us to take.

And it is clear that the NDP amendment makes some improvements to the Bill by ensuring that the federal government will stop behaving like a true colonist government, even though in actual fact, we are really only able to play the goalie, so to speak, because if you look at the Bill as a whole, the fact is it is built on the wrong foundation. It contains things that are utterly useless, and that we don't need anymore. We should have--and I have been saying this since we began clause-by-clause--gathered all the available financial and technical resources and the intelligence of the people sitting at this table and of the First Nations, who are not sitting at this table but should be, and used it to make real progress towards implementing self-government in the First Nations. But no, we're still right where we were before.

Imagine : you weren't here this afternoon, dear NDP colleagues, to hear the discussion, but Paul Martin has come out against this Bill. And Paul Martin, the next Prime Minister, has said he will put this Bill in the garbage. So, we're wasting not only resources, time, money, our intelligence…

¿ (2145)

The Chair: Thank you, Mr. Loubier.

Mr. Yvan Loubier: …and all of this is for a Bill that is going to end up in the garbage.

[English]

The Chair: For those of you who have a life outside this committee, it's Ottawa 5, Philadelphia 1.

Ms. Davies, closing remarks.

Ms. Libby Davies (Vancouver East, NDP): Thank you very much, Mr. Chairman.

I'm very glad to be here tonight to participate in this committee and in what has turned out to be a very historic occasion in terms of the attention that's being paid to the First Nations Governance Act.

Like many other members of certainly our caucus, but also I think of the opposition and maybe even of the government side, I have been witnessing and watching the debate that's been unfolding in this committee with a great deal of interest. I know that members of the Assembly of First Nations and members of first nations organizations right across the country are watching us and looking at the debate that's taking place.

This bill and the amendment on the table right now really speak to some of the concerns we've seen expressed in the consultations that have been held and by the witnesses who have appeared before the committee.

I should say that I represent an urban area, Vancouver East. In Vancouver East I probably have one of the highest populations of aboriginal people who live off reserve. I know there are other members around the table who have that as well. In the years since I've been elected, from 1997, I have developed a very close relationship with first nations people in the city of Vancouver, in particular in my own riding of Vancouver East.

I would say that the most striking and the most devastating issue we're facing among aboriginal people is poverty--poverty not only on reserve but also poverty of people who have come into the city looking for hope, looking for opportunity, or looking for employment. Unfortunately, many of those people end up in a neighbourhood that's called the Downtown East Side, which is part of the riding I represent. This is where we have a very high urban aboriginal population.

I've held many consultations with aboriginal people in my community around first nations governance. In fact I've even held consultations that included officials from DIAND. We've actually had some very good discussions. I can tell members of the committee that repeatedly there's a very strong and consistent message, whether it's from aboriginal people on reserve or off reserve, and that is that they are completely opposed to the idea that governance would be an imposed thing. That's partly what this amendment put forward by my colleague, a member from Winnipeg Centre, is all about.

What I find really disturbing is that the situation is so bad for aboriginal people, particularly in urban areas, that they don't even have the luxury of debating issues around governance because people are struggling to survive day by day.

One of the really tragic situations that has unfolded, and I think members have probably read about it or seen it on TV, is what's called the case of the missing women. We've seen something like 63 women, many of whom are aboriginal and who were involved in the sex trade, who have gone missing--many of them presumed to have been murdered. As we know, a major trial--in fact it's the largest serial murder trial in the history of Canada--is currently being conducted in Coquitlam.

I've been very drawn into this because I knew some of those women who have gone missing. In fact the body of one of the women, Serena Abbotsway, has never been found. They've not yet found any of her DNA. I remember taking her to vote in the advance poll in the federal election in the year 2000. She was a person who was beginning to find her way out of being involved in the sex trade and addiction. She voted for the very first time in her life, and I remember when I took her to the poll, I think she had a sense of hope for the future about her own life. I remember speaking with her about the importance of voting and about what had happened to aboriginal people in this country. She had a very strong understanding of the need to have democracy, the need to have first nations governance, that came from within the community.

¿ (2150)

What happened to Serena is that she did vote for the very first time in her life, and I saw her a couple of times after that around Main and Hastings. Then she, too, disappeared, like so many of the other women, and she's now on that list. I wanted to maybe say something about her, because she was a real person. Maybe she's alive somewhere, I don't know. I would fervently hope so, but there's no evidence of that at this point. To me, someone like Serena, and many others like her, really symbolize the situation we're now faced with, and I think there are many members on all sides of the House who have a great deal of compassion and empathy for the status of aboriginal people in our country.

I think that's good. We need to have that kind of understanding and sensitivity, but I think, obviously, as parliamentarians, we have to go beyond that. Our role is to consider legislation; our role is to work with people and, particularly in the case of first nations, our role is to work in a way that produces a meaningful partnership. Again, this brings us back to Bill C-7 and all of the amendments that are before us. I think if we do have a real sense of empathy, of compassion, of democratic understanding, then we need to work in a way that does produce a meaningful partnership with first nations.

We need to provide programs; we need to provide resources. I know, again from my own experience and my own community, people are pretty desperate for help. We had a situation not long ago where we had a meeting with a whole number of aboriginal community representatives in east Vancouver over Aboriginal Head Start. Even at that level, there were some pretty fundamental issues about lack of understanding around what a partnership is. Ironically, the meeting we held included myself and a member of the Canadian Alliance who was on the subcommittee on children and youth at risk. We had agreed to visit each other's ridings as part of the subcommittee to actually find out what was going on at the ground level and the grassroots.

I visited the member's riding in Regina as well. It was very interesting, because we had a meeting with maybe 25 representatives, and we were discussing Aboriginal Head Start; we were discussing early childhood development programs and the need for such programs, and it was really quite shocking for us to learn, as two members of Parliament on this subcommittee from different political parties, and obviously not agreeing on many things.... I think we were of the same mind when we concluded our meeting, that there was a terrible lack of partnership between government agencies and first nations communities in east Vancouver. We tried to actually explore some of that and determine what some of the problems were.

¿ (2155)

Again, I offer this because I think it's an indication that even at a working level there is still an awful lot we have to do. These are programs that are well established, such as Aboriginal Head Start--

The Chair: Thank you, Ms. Davies. Time's up.

We now go directly to the vote, a recorded vote on NDP-47, page 156.

(Amendment negatived: nays 6; yeas 2)

(Clause 18 agreed to on division)

(On clause 19--Contravention of band laws)

The Chair: We're now on G-10, Mr. Hubbard.

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

It's a very brief amendment replacing line 7 on page 14, clause 19, and it will be changed with the brief insertion of the words “made under section 16 or 17”. In other words, subclause 19(1) will read that a band law made under section 16 or 17--which we just discussed--may provide that a contravention of any....

Mr. Chair, I won't debate that. It's merely a technical amendment and I think it will pass very quickly.

À (2200)

The Chair: Does anyone else wish to speak on this?

Monsieur Loubier.

[Translation]

Mr. Yvan Loubier: All this amendment does is add the reference to Sections 16 and 17. Other than that, I really don't see what it can possibly contribute, just as I really don't see what Bill C-7 as a whole can contribute. We have had a chance to discuss this at length, indeed, in minute detail, since beginning clause-by-clause consideration of the Bill.

This is such a futile amendment that we really don't know why the government feels a need to make this clarification. It was already clear that this would apply to Sections 16 and 17, but this is exactly the kind of technical amendment that the government has been serving up since we began clause-by-clause consideration, amendments that are purely cosmetic, that don't contribute a thing, and that only confirm what an odious and pointless exercise Bill C-7 really is, particularly when you see it in the light of everything that has taken place over the last 20 years, and all the input that has been generated and that has given us insight into the direction we need to take in forging new relations with the Aboriginal nations.

Earlier, I began describing the agreement called “Peace of the Braves” signed with the James Bay Crees, but there are other agreements that have gone even further in terms of treaty development, and that illustrate how the law has been shaped in terms of the jurisdiction of the First Nations and the non-Aboriginal population over vast areas considered to be Aboriginal lands, where from time immemorial, First Nations have been hunting, fishing, trapping, and so on.

I am referring here to the draft agreement with the Innu First Nations. There are four of them, in fact. Previously, the Innu First Nations were called the Montagnais, but the correct term is “Innu First Nations”. The Innu Nations and the Government of Quebec, and even the federal government in certain respects, have negotiated a draft agreement which is still being finalized at this time, but is extremely telling in terms of how the First Nations want to exercise their inherent right of self-government.

In the agreement with the Innu, two specific territories are defined in the treaty : first, a territory called Innuassi which is the land that belongs exclusively to the Innu First Nations and over which they exercise their sovereignty, and second, a larger tract of land which is the land claimed by the Innu First Nations and where they practise such traditional activities as fishing, hunting, and trapping.

With respect to that vast tract of land, which is outside the territory that belongs to them exclusively and over which the Innu First Nations can exercise their full sovereignty, with powers that bear no resemblance to the insignificant powers defined in Bill C-7, the Innu Nations have negotiated and arrived at an agreement with the non-Aboriginal population with respect to the sharing of that territory and the resources found therein. That agreement also provides for the application of laws and regulations made by the Innu First Nations to extend to that territory, which is outside the land that belongs to them exclusively.

In other words, a member of the Mashteuiatsh or Pointe-Bleue community engaged in hunting or fishing in that area would be subject to laws put in place by the Innu government, and not Quebec or federal government laws.

À (2205)

In areas where there was likely to be a conflict, such as those that we expressed a desire to resolve through a conflict resolution mechanism in Bill C-7, and in all areas that were likely to cause problems in the future, we have attempted to harmonize legislation. But we did not force the Innu communities, and we are still not forcing them to comply with Quebec or federal laws. We have said there could be harmonization in some areas, and spelled out those areas, but the Innu Nation is sovereign and exercises its powers as a sovereign nation. If it decides to harmonize its laws, then it will do so because it so wishes. Indeed, this is the kind of respect for the inherent right of self-government we wanted to come through and that we laid out in concrete terms in the draft agreement with the Innu.

In that general agreement, there are also special agreements relating to the sharing of forestry, hunting and fishing resources over the vast area on which we have reached agreement and, believe it or not, even though that agreement has not yet been ratified and is not in effect at this time, it is already leading to partnerships between members of the Innu First Nation communities and non-Aboriginal residents of the areas affected by this negotiation with the four Innu First Nations.

For example, in Mashteuiatsh, there is no logging expertise. And yet, right next door, there are timber limits and logging contractors who are desperately lacking manpower. So, agreements to train young Innu have been signed that reflect the spirit of the agreement negotiated by the Innu and the Quebec Government, dealing with each other as equals. The spirit of that negotiation was such that there are already partnership agreements in place to develop resources common to both communities, using the primary resource of the First Nations, which is their youth. The population growth rate is much higher among the First Nations than it is in the general population.

So, we have developed a kind of synergy, a partnership that reflects the socio-demographic realities of the areas concerned, and there are already partnerships in place in such areas as training, education and logging. This partnership will allow us to develop the forestry and mining potential of the region, in a way that is beneficial for all the members of both the Innu and non-Innu communities. That is the way of the future : forming nation-to-nation partnerships under which we develop agreements that respect the inherent right of self-government. That is what we should be doing.

And that is what we did with the Nisga'a. That is what I really don't understand. We did exactly that two years ago with the Nisga'a, with the consent of the federal government. But in this case, it looks like we're not dealing with the same government, even though there has been no change of government. With the Nisga'a, we were able to do that. But here, we are being presented with a kind of purulent boil, a gaping wound in the form of Bill C-7, which resolves nothing at all, and simply makes things far more cumbersome in terms of redefining and rebuilding the First Nations, in addition to the fact that it is likely to result in unending legal disputes.

The Canadian Bar Association agrees with the Quebec Bar. That does happen, but they have to work very hard to make it happen. Furthermore, they agree with the Aboriginal Bar Association. All these legal experts agree that this Bill has the potential to create unprecedented legal challenges.

And there, on the other side, we have the federal government saying that this will result in fewer legal challenges and address real issues, but that is absolutely untrue. We are creating an even worse situation than the one that currently prevails, a confrontational situation that will not allow us to move forward, that will not allow for any progress in negotiations on self-government or the settling of land claims. And if you also consider Bill C-6, then it is clear that it won't help either to resolve specific claims, particularly since a cap of $7 million per case is being set for specific claims. Under what common law principle is it acceptable, before the case has even been analyzed, before a ruling has even been made on a specific claim, for it to be decided that the compensation will not exceed $7 million? And yet every specific claim that has been dealt with in recent years has exceeded $7 million.

À (2210)

It is difficult to follow the current government's thinking. I'm anxious for a regime change. Now that doesn't mean I'm going to become a federalist or a Liberal, but Paul Martin…

[English]

The Chair: Merci, Mr. Loubier.

Mr. Hubbard, closing remarks.

Mr. Charles Hubbard: Thank you, Mr. Chair, and with that I think we're ready for the vote.

The Chair: Did you ask for a recorded vote?

Ms. Libby Davies: I actually had my hand up to speak.

The Chair: You spoke.

Ms. Libby Davies: I didn't speak on this.

The Chair: I didn't see your hand. I'll give you the benefit of the doubt, Ms. Davies.

Ms. Libby Davies: Thank you very much.

Mr. Chairman, this particular amendment, put forward by a government member, pertains to clause 19 and reads as follows:

(1) A band law made under section 16 or 17 may provide that a contravention of any of its provisions constitutes an offence punishable on summary conviction by a fine not exceeding $10,000 or a term of imprisonment not exceeding three months, or by both.

If I might say, I think this is again a provision of this bill that raises a lot of questions from first nations communities about what the bill's intent is and how it really comes into conflict with very traditional values and practices established over thousands of years.

If we look at this particular provision, in earlier clauses--and this does pertain to clauses 16 and 17, which we have looked at--they basically lay out some of the powers a band council may have for establishing the prevention of damage to property or activities in public places; the provision of services, local work, public utilities, and so on. These clauses lay out the various proposals and mandates of a council as understood by this act.

I find very interesting that in this particular section we're talking about what the penalty would be for a contravention for any of the provisions outlined in clause 16 or 17. I think this really raises a very serious question. One could argue that it's very presumptuous to determine through this act what the penalties would be for the contravention of band laws. I don't know how the $10,000 was arrived at. I don't know whether that's a high or a low amount. I don't know what it's based on. I don't know if it's based on some municipal governance procedure. Certainly, as someone who's been involved in municipal government for many years, I don't know that a bylaw penalty would be that high.

There's a question about the amount itself. But there's also a question about how this particular clause, again, is putting forward a mechanism very much based on western values as a means to implementing what traditionally have been community laws. So even in this one little clause in the whole bill--and as we know, there is massive opposition to this bill--the idea of a penalty of a fine not exceeding $10,000 again immediately brings into focus the fundamental problems contained in this bill. It is imposing a set of values and practices on first nations communities that come from our western culture.

I think many people would see this as a perpetuation, a continuation, maybe with a more modern application, but the underlying values are still those of the old Indian Act. It's a perpetuation of the kinds of practices we saw in that act.

What I and many other people find of concern is that this particular clause--and indeed the whole bill--does not make any provision for aboriginal values of justice, which are based on something completely different. Again, this is something I have learned in a very fundamental way from being involved in my own community.

À (2215)

I think if you wanted to spell out what those traditional values are, they would be based on the idea of justice in the community, so when someone has done something wrong, justice is achieved not necessarily through monetary penalties, which in fact in many cases would be absurd because people simply wouldn't be able to afford those kinds of penalties. And then to argue that, well, it might be a term of imprisonment not exceeding three months, one has to question, well, what on earth would that accomplish?

This is so far removed from aboriginal values, which are based on achieving understanding and consensus--something, by the way, I think we would do well to learn from--that I think it makes this particular clause very objectionable. The government amendment does not improve the situation; in fact it makes the situation worse.

If you look at this clause 19 and think about the kind of message it is sending to people, what we are actually saying to people in first nations communities is that even though these communities have the lowest per capita income in Canada and the highest incarceration rate, we're going to include in this bill a provision that would include these kinds of high penalties and/or imprisonment as a result of contravening a band law.

So, Mr. Chairman, I most certainly would be in opposition to the amendment, as well as to the clause, because it really takes us in a completely different direction from where first nations people want to go--and have the experience and the wisdom and the vision to go--in terms of developing their own practices around governance.

So again, I find this particular clause to be very patronizing. I find it to be imposing a completely foreign penalty on a community, and in fact, if this were applied, one could argue that it could actually create harm. So I wonder what this is all about. We have this First Nations Governance Act that the minister has told us is a great piece of legislation about accountability and transparency. Then why do we have clauses like this? Why do we have clauses that are offensive to first nations people and are completely contradictory to what has been developed from within the community? It becomes another example of Big Brother government within a department based on a political agenda, maybe with good intentions, bringing forward provisions that basically people will find it extremely hard to live within.

There would have been an opportunity when looking at this whole clause on offences to build on the kind of work that's already been done in the aboriginal community. In fact there are now all kinds of programs operating around restorative justice, around achieving consensus on the issues. I think to go down that road and to build on that kind of strength, which as well brings accountability and transparency but is based on aboriginal values, would be a far, far better thing than what we see outlined here in terms of this clause on offences.

I completely understand why we see the kind of opposition we're seeing to this bill. I think people have a sense of betrayal, of complete disillusionment.

À (2220)

Many people in our society, generally, feel very cynical about the political process. People feel very turned off the political process. I know this is something we all face as members of Parliament, as politicians, as elected representatives. I think it behooves us to examine why that cynicism is there. I could think of a number of reasons. I mean--

The Chair: Thank you, Ms. Davies.

Monsieur Crête.

[Translation]

Mr. Paul Crête (Kamouraska—Rivière-du-Loup—Témiscouata—Les Basques, BQ): Thank you, Mr. Chairman.

First of all, I would like to request a more technical opinion from our experts regarding the French version of Amendment G-10 to Clause 19, which says: “Le texte législatif pris par une bande en vertu des articles 16 ou 17...” In French, it makes no sense to say “pris par”. You cannot use the expression “prendre pour” or “prendre par” in relation to a law. There's a problem here in terms of the quality of the French version. So, I would like some clarification, please.

Mr. Andrew Beynon (General Counsel, Department of Indian Affairs and Northern Development): Perhaps I could comment. I believe the reference in sub-clause 19(1) is worded : “un texte législatif pris par une bande”. It would be the same usage as in the legislation--for example, in sub-clause 18(3), where it says at the very end “d'un texte législatif pris en vertu du présent article”.

Mr. Paul Crête: Sub-clause 18(3), you say?

Mr. Andrew Beynon: Yes, sub-clause 18(3).

I might add that at the end of sub-clause 17(2), it says “d'un texte législatif pris en vertu du présent article”. So, if it uses the expression “pris par” in the government amendment to sub-clause 19(1), it would be the same thing for sub-clauses 18(3) or 17(2), for example.

Mr. Paul Crête: Yes, but in sub-clause 18(3), the expression used, which is “pris en vertu de” is not correct French; it just isn't. The French version of the amendment has to be corrected. The people who will have to interpret the French version simply won't understand what it means.

If we're talking about a nation whose main language, other than their language at birth or their language of origin, is French, then, when they see this wording… It could lead to impossible interpretations. We have to find a solution here, Mr. Chairman.

Shouldn't this clause be tabled until a corrected version can be brought forward? I think it would be appropriate to postpone examination of this clause and come back to it later on. What do you think, Mr. Chairman, and what do government Members or our experts think? I don't think we can pass this clause as it's presently worded, until we've found a proper translation that reflects the spirit of the English version. That is what I would suggest, before we debate the substantive issue here.

[English]

The Vice-Chair (Mr. Maurice Vellacott): I defer to my resource people here. Are you saying it's an inadequate translation? Is that your point?

[Translation]

Mr. Paul Crête: The expression used in the French version simply isn't correct. You can't use the expression “pris par” when you're talking about a law made by a band. Because if you're talking about a law made by a band there has to be… Because if you say “pris par”, that means that it's a law written out on a sheet of paper that someone picked up on a table somewhere and decided it would be a law. It's totally illogical. This is an unacceptable version. Given that the French wording is just as important as the English wording in our laws, I would suggest that the text be corrected before we continue discussing the actual clause.

À (2225)

[English]

The Vice-Chair (Mr. Maurice Vellacott): I'll ask Mr. Beynon and Mr. Boileau. Are you satisfied with the translation of the French, in terms of how it reads, or do you admit there's a problem?

Mr. Andrew Beynon: To answer the question, the main function of the proposed change is to make it clear that we're referring to laws made under clauses 16 and 17. The sense of that, I think, is conveyed reasonably well in French

[Translation]

“en vertu des articles 16 ou 17 ”

[English]

The point about whether or not a reference to

[Translation]

“pris par une bande”

[English]

is the most refined version of French I'd have to leave to others to consider. I can only offer again the comment that there are other parts of the text.... For instance, I was looking back at 16(1), where it refers to

[Translation]

“Le conseil d'une bande peut prendre des textes législatifs... ”

[English]

I believe the language is trying to pick up that same concept here as well.

The Vice-Chair (Mr. Maurice Vellacott): I'm going to ask the parliamentary secretary.... It's a government motion. What do you choose to do at this point, withdraw it and have some discussion, or have it proceed?

Mr. Charles Hubbard: We see no problem with it. I was just reading the French here myself. The amendment is merely to change five or six words. Maybe some of my colleagues are more adept at French than I am. It seems to me that “pris par” has the same connotation as what--

The Vice-Chair (Mr. Maurice Vellacott): It's your motion. I don't know. If your French colleagues are satisfied with it, I think I will just proceed, unless you choose to pull it back after discussion.

Mr. Charles Hubbard: I have no reason to pull it back from what I see is a red herring. That's what you'd call this in English.

[Translation]

Mr. Paul Crête: Mr. Chairman, I had the floor. I would ask my colleagues to try and imagine how they would feel if the situation were reversed. If it said in English “a band law taken under section 16 or 17”, or an expression was used in English that is incorrect, I image you would want the language to be corrected. My view is that in this case, we won't resolve the problem in the next ten minutes. Surely we can find someone who can translate this into proper French, at which point we could resume clause-by-clause consideration, when we have an adequate French version, given that the French wording has to jibe with the English wording. We don't translate these clauses because we feel like it; we do it because we have to. There are two official languages, and bills have to be drafted in both languages. The French version has to deliver the same message as the English version. So I think it's important that this be corrected. Could we suspend clause-by-clause consideration until our departmental experts can come forward with an acceptable version from someone who masters the language---for example, a legal expert with knowledge of French who will ensure that we get the proper wording?

[English]

The Vice-Chair (Mr. Maurice Vellacott): I think Mr. Beynon wanted to respond at this point.

Did you have a comment?

Mr. Andrew Beynon: No, I wasn't really signalling an intention to respond to that. In respect of the language “pris par”, again my suggestion at least is that this does seem to reflect “prendre”, the same verb used in other parts. To move to some other term like “adopter” would suggest to me at least some difference with the opening words of clauses 16, 17, and 18 for that matter.

The Vice-Chair (Mr. Maurice Vellacott): I'm going to rule for Mr. Crête to just proceed. We have probably had enough discussion on this. They will skewer themselves on their own petard if this is not adequately written in French.

[Translation]

Mr. Paul Crête: I just wanted to say that Mr. Beynon quoted sub-clause 18(3) earlier, which uses the expression: “pris en vertu du présent article”. In that clause, that would seem to be the correct explanation to use and it reflects the English version, which is “any regulations under this Act”; that seems to be an accurate translation. Could we not use the same wording in the following paragraph, to ensure that everyone who reads these clauses understands the wording in the same way? I'm up against a brick wall here; I would like to hear the Chairman's interpretation. What can we do in this case, can we table the…?

Mr. Chairman, could we stand this clause and go back to it once we have an adequate translation?

À (2230)

The Chair: We could.

Mr. Proulx.

Mr. Marcel Proulx: Thank you, Mr. Chairman. I think my colleague is just trying to delay things because… Let me explain briefly. If you look at page 10, clause 16, line 33 in the English version and line 32 in the French version, you'll see that at the beginning of this clause, we have the words: “The council of a band may make laws…”, and in French “Le conseil d'une bande peut prendre des textes législatifs…”. So, if it was good enough for the colleague who was sitting at the table at the time, or for one of his colleagues, from his own party, I don't see why it's not good enough anymore, at this point in the debate, Mr. Chairman. He is making something out to be a problem, when it isn't, in reality. Thank you.

[English]

The Chair: Mr. Hubbard, for closing remarks.

Mr. Charles Hubbard: Thanks, Mr. Chair. I think we're ready for the question, and I would ask you to do so.

The Chair: Are we ready for the question?

(Amendment agreed to)

[Translation]

Mr. Paul Crête: Is my time up?

The Chair: Yes, it was a long time ago. It's too late. I give you time. He is going to have to help you.

[English]

When I ask you if you're ready for the question, I wait a few seconds, and if I get no request for a recorded vote, I move on to the vote. I can't do more than that.

[Translation]

Mr. Paul Crête: I would like some clarification, Mr. Chairman. In the speaking time you gave me earlier, did you count the time used by the Members opposite? They also were part of the debate. It's not acceptable to count that as part of my speaking time.

The Chair: We are moving now to BQ-36. Mr. Crête.

Mr. Paul Crête: That's not an answer to my question!

The Chair: You saw for yourself that I left to go to the bathroom. That's the best I can do, because your time is up.

Mr. Paul Crête: My question has nothing to do with your basic needs, Mr. Chairman.

The Chair: We are moving on now to your next amendment.

Mr. Paul Crête: Thank you for being so democratic. If my 10 minutes are starting now, I'm going to take time to get started.

So, we are on amendment BQ-36, which we are moving because we believe it is important that the maximum fine be set at $15,000, rather than $10,000. In this case, there can certainly not be a problem with the translation. If you look at the clauses this applies to, because we have just made a change that means this will affect band laws under clauses 16 or 17, you can see that under clauses 16 and 17, there are a significant number of things that can be subject to fines. I won't give you the whole list, but I would like to look at a few of them.

In clause 17, for example, it talks about :

(a) the protection and conservation of natural resources within the band's reserve and the disposition for personal and commercial use of those resources, other than wildlife, fish or resources that can only be disposed of pursuant to a surrender under the Indian Act;

It also talks about :

(b) the protection, conservation and management of wildlife and fish on the band's reserve;

It talks about :

A little further on, it talks about :

(e) the residence of members of the band and other persons on the band's reserve;

Further on still, it talks about :

(h) authority for the Minister to make payments out of capital or revenue monies to persons whose names have been deleted from the band list;

So, there are many, many areas covered by clause 17, and the same applies to clause 16, which also includes a pretty impressive list of areas, for example :

(a) the health of residents and the prevention of injury to persons;

(b) the prevention of damage to property;

(i) residential tenancies, including powers of eviction;

(j) traffic.

I would like to hear from our experts whether they don't think it would be more relevant to have a broader range of possibilities in terms of setting the amounts of fines? Rather than going from $0 to $10,000, it could be from $0 to $15,000, as I understand this clause in the Bill. In that case, the amount of $15,000, which may seem significant, is relevant for some of the items listed in clause 16 or clause 17, whereas for other clauses, we would consider $10,000 to be inadequate. I would like to hear the view of the experts on this.

À (2235)

[English]

Mr. Dave Boileau (Senior Adviser, First Nations Governance for Policy Development Directorate, Department of Indian Affairs and Northern Development): When we looked at an appropriate amount for penalties and fines, we looked at different legislative models, and the fine amounts and penalties for the types of offences listed in clause 16 or 17 vary. If you look at different legislation across the country, there are different amounts shown.

After looking at different models, we chose the amount of $10,000 because it had appeared in a number of cases in other laws. What comes to mind right now is that the Province of Alberta uses the amount of $10,000, for instance.

Right now under the Indian Act the amount is $1,000--that's the maximum fine amount. That was felt not to be a deterrent at all, so we wanted something more substantive. That's why we ended up with a higher amount than $1,000.

In my recollection of the various laws we looked at, there were very few laws that set amounts higher than $10,000, so that's how we ended up at $10,000.

[Translation]

Mr. Paul Crête: Was the amount of $1,000 that currently appears in the Act set when the Act was first passed? Can you tell us how long that $1,000 amount has been in effect? Certainly, $1,000 20, 30 or 40 years ago would probably have a value of $15,000 now, rather than $10,000. Given that the legislation we are amending will not be amended again for some time, the amount we set should be an amount that is reasonable now and will be for a long time.

In terms of the different options, did you consider amounts other than $10,000, or higher than $10,000?

[English]

Mr. Dave Boileau: These other bills we looked at also have amounts higher than $1,000. It seems $10,000 is an appropriate amount.

In terms of how long the $1,000 amount has been in the Indian Act, I don't know exactly, but it's probably been there for 20 or 30 years. It was felt to be too low an amount for certain of the offences we're talking about now, in a modern context. You can also set amounts that are too high, given the situation of many first nations people. They can't afford high fines. So you get to a certain amount and it's irrelevant.

It needs to be a deterrent, but not too oppressive. It's a balancing act.

[Translation]

Mr. Paul Crête: So, as regards sub-paragraph 17(1)(d), where it says :

(d) trespassing on the band's reserve or frequenting the reserve for prohibited purposes;

So, that would apply here. In terms of trespassing on the band's reserve, we know that certain past activities generated illicit revenues that were much higher than $10,000. I think some people would consider a $10,000 fine to be sort of a performance bonus. I'm just citing that example to demonstrate that it would be a good idea to have a much broader range of amounts for fines.

[English]

Mr. Dave Boileau: Well, that's up to the committee to decide. Right now the maximum is $1,000 for trespassing. The amendment would propose a $10,000 amount.

À (2240)

[Translation]

Mr. Paul Crête: I see.

Mr. Chairman, I would have like to be told how long the $1,000 amount, that is now in the Act, has been in effect, because I have the impression that at the time that amount was adopted, that was a very significant amount of money and that if we consider the amount of time that had elapsed--now I haven't been given that information--but if it's available, I would appreciate getting it--since the amount of $1,000 was set in the Act, we would see that that probably corresponds to about $50,000 nowadays. It may also be less. I don't really know, but I do know that the Act has not been amended for several years. It seems to me we would be giving the people that have to manage that account and handle these kind of situations the opportunity to set a fine that would really act as a deterrent, if we want to eradicate certain behaviours, particularly in relation to offences that may have generated significant revenues for people who acted illegally in relation to the band law, and who might feel that $10,000 is not a very significant fine to have to pay, given the importance of the effects. In any case, it would certainly be useful to know what the $10,000 amount put in there initially really corresponded to at the time.

Let me use another example--sub-paragraph 17(1)(g), where it says :

(g) the rights of spouses or common law partners and children who reside with members of the band on the band's reserve, with respect to any matter in relation to which the council may make laws in respect of members of the band;

The rights of spouses can be related to all kinds of things in terms of inheritances, and so on… I suppose it could even include… It mentions children here. It could even include inappropriate actions, or actions involving child support or alimony, for example, that a member of the family could be required to pay. And if someone had not fulfilled the commitment he made, I would consider that amount to be far more acceptable than the one proposed in the Bill.

So, I see this as a very realistic amendment that would result in a positive change to the Bill. Of course, that doesn't mean we accept the Bill as a whole. We all know full well that with this Bill, we are facing the most absurd situation that I've ever seen in all the time I've been a parliamentarian. On the one hand, we have a government that wants it to pass, and on the other, a contender for the job of Prime Minister who says that he won't implement it once it's been passed.

Some say they don't want to sully the image of parliamentarians, but I can tell you, this is not the right way of going about it. Indeed, after spending hours trying to amend and improve this Bill, the message at the end of this is that once it has passed, it will not come into force, because Mr. Martin doesn't intend to implement it if he is elected Prime Minister. So, given that reality, it may seem a little strange to still want to try and improve it, as we are attempting to do, but we do have a responsibility…

[English]

The Chair: Ms. Davies.

Ms. Libby Davies: Thank you very much, Chairperson. I'd like to continue on from the comments made by my colleague here from the Bloc.

I actually would like to ask a couple questions of the officials who are here, because I'm just very interested in knowing how this amount came about. In the legislation before us we're talking about a summary conviction by a fine not exceeding $10,000. We have an amendment here that would say “not exceeding $15,000”.

You did say that you looked at different legislative models. I wonder if you could tell us what legislative models you looked at?

Mr. Dave Boileau: We looked at provincial legislation across the country, because a lot of the laws that you see in clause 16 or 17 are of a similar nature. So we looked at provincial models across the country. It's generally found in legislation related to local government and the maximums that provincial governments allow the local governments to set for certain things like trespassing or dog bylaws, or whatever.

Ms. Libby Davies: Did it also include a review of municipal bylaws and fines, and so on?

Mr. Dave Boileau: Well, not at a municipal level, but provincial legislation that deals with municipal-level laws....

À (2245)

Ms. Libby Davies: Okay.

In the earlier questioning from my colleague, you did point out that under the existing Indian Act the maximum penalty is $1,000, and you did acknowledge that if you made a penalty too high, a lot of people living in first nations communities simply wouldn't be able to afford it. They wouldn't be able to pay the fine. In my earlier remarks I really tried to focus on this, because I think this is a very real question. So I'd like to ask you a couple of things about that.

First of all, in looking at different legislative models, did the department consider models other than imprisonment or a financial penalty? My point is, we go to what we know to be provincial legislation or our own system of governance. Why wouldn't the department actually consider other kinds of legislative models than financial or imprisonment, and in fact, did you do that?

Mr. Andrew Beynon: Could I perhaps just answer the first part of your question?

Just so we are clear for the record, most of the law-making or bylaw-making authorities in the Indian Act provide for a $1,000 maximum penalty. There is actually one part of it on intoxicants that provides for a $100 maximum penalty. That's only one small area, but just so we don't say all of the Indian Act currently has a $1,000 maximum, there are some that are $100.

Concerning the issue with respect to the current drafting of Bill C-7 providing for $10,000, that would be the maximum financial penalty. If a court were faced with the conduct of an individual, the court could examine how that person approached the issue in the sentencing and could decide to impose a $100 penalty, $1,000, or a maximum of $10,000.

By saying the limit is $10,000, there is no obligation on a court to go to the $10,000 amount. One of the factors that would be considered is ability to pay.

In just considering the important points you've raised about ability of various aboriginal persons to pay, I think we also have to bear in mind that the law-making authority for band governments is to apply in the reserve to all persons--in other words, could apply to aboriginal people, could apply to non-aboriginal people who live there, or even non-aboriginal people who are visiting a reserve and just passing through. Traffic would be a good example.

The advantage of keeping a level as high as $10,000 is not that the courts will necessarily always impose $10,000 penalties, but they can go to that level if there's a need to control the conduct.

The issue with respect to imprisonment has a similar flavour. It is an authority for the courts to impose imprisonment, if that's the right way to control the conduct. But there is no obligation for the courts to do that in sentencing.

If the matter is dealt with best by no fine or a $100 fine and no imprisonment, then that's how they'll deal with it. If it's a very serious transgression or one that has happened repeatedly that has to stop, then the courts could impose imprisonment.

Ms. Libby Davies: I appreciate your response, and I certainly recognize that a court obviously does not have to apply a maximum fine. Whatever law we're dealing with, that's the standard thing. But my question was not only in terms of the amount of that fine, but whether the department actually considered legal mechanisms other than financial or imprisonment as a penalty.

What I'm really getting at here is I think it's been put forward to us that we're just repeating a pattern of what we understand governance to be. But if one were to look at traditional methods, there may be other kinds of processes that also involve penalties--maybe not as you would see it, but certainly as aboriginal people would see it.

So if I could just follow up, I would like to ask you, in drafting this one section, was there any consultation done with first nations organizations? For example, there's a lot of debate now in the academic community about legal pluralism.

Are either of you lawyers?

À (2250)

Mr. Andrew Beynon: Yes.

Ms. Libby Davies: Okay.

I'm just a little bit familiar with what that means, but it's the concept that we have this idea in our mind about what a legal penalty might be, but there are all kinds of debates going on about other kinds of methods that may produce the outcome we want but may be entirely different processes.

So the question I have is, why did the drafters of this legislation--the government--choose to reinforce a very traditional western mode of penalty and punishment without considering other legislative models, particularly as they may exist within first nations communities? Maybe you could tell us about that.

Mr. Chair, I would actually like to introduce a subamendment that amendment BQ-36 be amended by replacing “not exceeding $15,000” with “deemed appropriate by the band”, and I would put that forward to the clerk.

Thank you.

When you've accepted the amendment, maybe I could speak to it.

The Chair: That's right. I'm accepting it. You can speak to it.

Ms. Libby Davies: I'm really just continuing on the same vein here, and this subamendment to my colleague's amendment is really an attempt to open up the debate here to think about what alternatives exist. It would seem to me, in terms of this legislation, that if we have respect for our first nations communities, the very least we could do is make it at the discretion of the band council in terms of what they want to develop.

I think that would be a preferable course of action. It would be an alternative, and it would open up the possibility that the band may decide to do something in a different way.

But if I could come back to my question of the officials, I would really like to know, first, who did you consult with on this mechanism of monetary penalties? Were there round table discussions? Were there legal opinions about other avenues that might exist? Or is it one of these things where it's what we've always done, we'll always do? Is it that kind of situation? Or do we actually explore that there may be some real changes that can be made here and they should come from the community itself?

Mr. Dave Boileau: The department did not really consider other alternatives to fines and imprisonment. The intention was to modernize what was in the Indian Act, and the Indian Act provides for fines and imprisonment. Also, if you look at the other models across the country, every provincial model I can recall provided penalties of either fines or imprisonment.

Consultations were held with first nations from May 2001 to November 2001, and we consulted in general terms on the enforcement provisions of the bill. Other alternatives were mentioned, but in the end, our intention was to modernize the act. We also looked at it in terms of being consistent with what other governments were using in their legislation. That was our major intent.

If a band wants to use other models or other types of penalty, they could always do so, but whoever is accused would have to voluntarily agree. That's my understanding. They would have to voluntarily agree to abide by, say, an elders circle or whatever. So that always is possible, as long as the person voluntarily agrees, even though it's not in the bill.

However, if a band wants to explore other means of justice or other types of penalties, there's always the self-government route, in which those kinds of things are done.

First nations governance is not self-government, but it does modernize what we have right now in a way that is consistent with what other provincial governments do.

À (2255)

Ms. Libby Davies: Well, first of all, I thank you for the response, given the late hour. I know you probably must be tired as well.

But it does raise some very interesting discussion, because what do we mean by the notion “modernize”? Based on what you've said, as I understand it, the thrust of this bill, the underpinning of this bill, is to modernize, but it's to modernize based on the terms that we set out as white society. It's based on the need to modernize based on our understanding of legislative practice.

I question what that word “modernize” means. How do we define that?

If you look at some practices that are now being fairly well developed around restorative justice, would we call that modernization? Maybe it's something we'll actually learn from, and we'd be the ones who would be modernizing on that basis. You can flip it around and look at it the other way.

I think you did mention that you looked at some other models. I'm wondering whether or not the department actually looked at models in other countries, around first nations and this issue of penalties. Is that something you would be aware of or that you considered in drafting this bill?

Mr. Dave Boileau: We did not do that with respect to this bill.

Ms. Libby Davies: Okay.

Mr. Dave Boileau: When you look at the word “modernize”, that's one aspect of what we were trying to do. But comparability with what other governments are doing in Canada was also another significant principle we followed.

Ms. Libby Davies: And would you say that comparability was a key criterion of how this bill was drafted--comparability with provincial legislation, existing models? Is that really what drove this, the need to have some sort of comparability?

Mr. Dave Boileau: With respect to comparability, for these provisions we mostly looked at provincial legislation because it's most relevant to what we're dealing with here. In other areas of the bill we did look internationally at what was out there in some cases, depending on what it was we were dealing with. In many cases, there are many examples right here in Canada. You want to have some sort of benchmark by which to measure whatever it is you're trying to do. So that's basically what we were trying to do, and I think we accomplished that.

Ms. Libby Davies: I'd like to thank you for your response. If anything, I think it reinforces for me, Mr. Chairman, that there really are very serious concerns about this bill, because what we hear in the House, what we hear from the minister, what we hear from the Prime Minister, what we hear from Liberal members, is that this bill is about working with first nations communities; it's about respecting first nations communities. Yet the more we hear about it, the more you read line by line and clause by clause, it seems like it's based on a continuation of a practice that we may find perfectly in order. It's based on this idea of some sort of comparability, and I find it really surprising and disturbing that a bill of this significance, that supposedly is trying to take us away from the bad old days of the Indian Act, is repeating the same kind of process.

I wonder why there hasn't been the kind of consultation, even on this particular provision, that would allow an exploration and a dialogue and a discussion, and indeed a legal analysis of what other possibilities exist, say, within the debate around legal pluralism. That I think is something we haven't heard much about.

It almost seems as if this bill sort of comes down to the lowest common denominator and this sort of idea that one size fits all. I think it's very tragic that we've missed an opportunity. Maybe at the beginning there was a sense of goodwill, a sense of faith on both sides, from the government side and from first nations, and somehow, early on actually, that was completely lost. Here we are now with this huge piece of legislation, very detailed, very prescriptive, based on a model that first nations people themselves find completely unacceptable.

When we have that kind of message, when we've had that kind of response from people, I simply don't understand why there wouldn't be a sense from the committee that it's time to go back, that it's time find out how something went so seriously wrong.

It is curious--

Á (2300)

The Chair: Thank you.

Monsieur Crête.

[Translation]

Mr. Paul Crête: Thank you, Mr. Chairman. If I understood correctly, we are now on the sub-amendment. Could someone repeat the wording for me? I didn't hear the translation, and I want to be sure I got it right.

[English]

The Chair: To repeat the subamendment, it is “deemed appropriate by the band”. I don't know if they translated it.

[Translation]

Mr. Paul Crête: It's written in English, but it's going to be translated. Right?

The Chair: Instead of $15,000, it will say :

[English]

“deemed appropriate by the band”.

[Translation]

In other words “deemed appropriate by the community”.

Mr. Paul Crête: I understand. You have accepted it as a sub-amendment, so we will be debating it on that basis. It seems to me the only acceptable sub-amendment would be to correct the amount, to arrive at an amount like $15,500, or $15,250. I think that what is being suggested here will provoke an interesting debate and allow us to arrive at what almost everyone would like to see. I'm referring here to the possibility of allowing the Aboriginal peoples a certain latitude, and letting them decide in their own way how justice can be served.

I should also say, however, that I was quite shocked by this whole business of modernizing the legislation. The government says it's trying to modernize current legislation, and yet all it's proposing is higher fines. At the same time, they also say they didn't give any consideration to the Aboriginal peoples' system of justice.

I'm starting to understand why Paul Martin says this Bill should never come into force. We're going to go back to square one with the Indian Act and the First Nations Governance Act. And we know it will have very long term effects and that the legislation it is based on is completely outdated.

We shouldn't be judging the people who passed this Act back then. But nowadays, in a society like ours, it is clear that this is not what we are seeking for the Aboriginal peoples who share this country with us, and whose customs and practices we should respect. At least the sub-amendment that has just been presented would give them some latitude in that area.

In that connection, I would like someone to tell me what kind of comparison has been made with the law as it affects non-Aboriginal Canadians. Can you tell me whether in relation to clauses 17 and 18, which cover quite a significant number of areas, a comparative analysis has been done to determine whether there is some latitude given for decisions of this nature, as proposed by the amendment?

Á (2305)

[English]

Mr. Dave Boileau: I am sorry, could you repeat? The translation was delayed there, I'm sorry.

[Translation]

Mr. Paul Crête: Okay, I'll start over; I may not have made myself clear. Clauses 17 and 18 refer to a series of activities that will be subject to fines under the sub-amendment tabled by my colleague. Do you know whether other Canadian laws have the kind of built-in flexibility that benefits Quebeckers and Canadians, and could also benefit Aboriginal nations? I'm thinking, for example, of the Young Offenders Act, which sets out alternatives with respect to rehabilitation or penalties such as the ones provided for here. Has such a comparison been done?

[English]

Mr. Dave Boileau: The answer is no.

[Translation]

Mr. Paul Crête: We want this legislation to be the best it can be for the Aboriginal nations. The amendment proposed by my colleague will certainly provide that flexibility. This is almost guerilla warfare, parliamentary style, and that is both relevant and appropriate, because this sub-amendment would change the structure of that clause. The previous penalty was $1,000. We felt the appropriate amount would be $10,000, and now, with this sub-amendment, there would be no set amount in the clause, as I understand. It wouldn't say $10,000 or $15,000; no amount whatsoever would be mentioned, so that the band would have total flexibility in that regard. It could set the fines it felt were appropriate and even impose symbolic amounts as fines. But that was already possible under the previous wording.

I just want to have a clear idea of what the impact of this sub-amendment could be. There would no longer be a maximum, so the band could decide to impose a fine of $100,000, $200,000 or $500,000. It would be left to the discretion of the band. That being the case, there would be real independence in terms of the way this clause would apply, and that would mean the whole legal principle behind this would change.

When I moved an amendment to change the amount from $10,000 to $15,000, my purpose was to give the band greater flexibility, because it seemed to me that some of the offences warranted tougher sanctions. But with the sub-amendment, we are giving the band total freedom to decide what amount is appropriate. Do you think that this sub-amendment would stand up to the rulings of higher courts, that it would be upheld? For example, if someone appealed the decision and even took it as far as the Supreme Court, would this language be accepted? Would it pass the constitutional test?

Mr. Andrew Beynon: Well, to tell you the truth, my answer would be no. If we talk about a fine…

[English]

or a fine deemed appropriate by the band.

[Translation]

I'll read it in English.

[English]

The difficulty with that for the courts is that it would be an indication from Parliament that there is some fine in an unknown amount that Parliament hasn't said. It's whatever is deemed appropriate by the band, $100,000 or $1 million or $10 million. I think it would be too vague and struck down for uncertainty.

[Translation]

Mr. Paul Crête: Mr. Chairman, with the explanations we have just been given, along with the various interpretations we've heard and the comments of my colleague, I think we now have the information we need to vote on this sub-amendment, once you have given us a ruling on the following point. If we pass the sub-amendment, what happens to my amendment? Does the amount of $15,000 that appears in the amendment become null and void? And would the $10,000 amount, which appears in the initial language, also disappear? Would that be the consequence?

I think I'll have to give this some thought, because the amendment I moved earlier was to change the amount to $15,000. So, if I vote in favour of the sub-amendment, I am automatically accepting the idea that the amount will not be $15,000, and that we won't vote on that amount. If the sub-amendment is not agreed to by the majority, then we come back to the status quo, without ever having an opportunity to vote on my amendment.

So, even though I am open to the sub-amendment, which gives the Aboriginal nations and Indian bands full latitude to administer disciplinary decisions as they see fit, I think I'm going to vote against the sub-amendment, so that we have an opportunity to vote on the amendment suggesting an amount of $15,000, which I hope will ultimately pass, because I believe that it is a very appropriate change to make at this time.

Á (2310)

The Chair: Have you finished?

Mr. Paul Crête: Yes.

The Chair: I just want to provide a clarification regarding what was said earlier. If the sub-amendment passes, it becomes the amendment, and the debate continues on the new amendment. I think you were led to believe that if the sub-amendment passes, the amounts of $15,000 and $10,000 would disappear.

Mr. Paul Crête: Yes.

The Chair: That is not correct. If the sub-amendment passes, it becomes the amendment and the debate continues on the amendment, as amended.

Mr. Paul Crête: Fine, thank you.

[English]

The Chair: Ms. Davies.

Ms. Libby Davies: I think as the mover of the subamendment I have another 10 minutes, do I?

Okay. Just to clarify, though, before I speak to the actual subamendment, if the subamendment is not approved, do we then go back to the amendment?

The Chair: We go back to the amendment, and Mr. Crête has another 10 minutes.

Ms. Libby Davies: And then we go to the clause--

The Chair: And we deal with that.

Ms. Libby Davies: Right. I'd like to speak to my subamendment, because I think it's been a very interesting discussion here, to look at these two amendments--the subamendment and the amendment. It's useful and positive, because it helps to open up the debate about what it is we're actually examining here.

My intent in bringing forward the subamendment is to make it clear that the motivating force and the mandate for determining what a penalty should be should actually rest with the band council.

Coming back to my own municipal background, a municipal council that is elected has the ability to make its own bylaws and to look at its own penalties. I think that's a much preferable course of action to having something imposed by a so-called senior level of government. In fact, those of us who come from a municipal background sometimes object to that term “senior level of government”, but I guess there is a kind of hierarchy and a pecking order.

I think the principle here, and what I'm trying to get at with this subamendment, is that we should be looking at provisions and mechanisms that would allow the band council to determine itself, through its own due process and practices what kinds of penalties, whether they be financial or not....

I hope I've been able to open up at least the possibility that there are penalties that are not necessarily financial. We often think of penalties as being financial--that's what we understand--but I think increasingly people are beginning to question the judicial system that's based on a system of fines that in many ways is incredibly discriminatory. I know this from my own community. We see people who are incarcerated at tremendous cost to society because they couldn't pay a financial penalty. They couldn't pay a fine, and so imprisonment became the order of the day.

I think there are more and more people who are questioning who is served by that kind of justice. Are we helping the person who's being convicted of the crime? Are we helping society, which has been wronged in some way? I think there is growing evidence, and there is certainly growing community opinion, that a judicial system with penalties based strictly on financial or imprisonment alternatives really doesn't serve us in providing justice in the long term.

It's with some disappointment that we look at this bill and realize we've missed opportunities here to do something that was significant. We've missed opportunities to build on practices that actually are having some success.

I never believed there would be a day where I would be quoting Paul Martin as a Liberal leadership candidate and agreeing with him--I don't think I've ever agreed with the guy since I've been elected--but looking at some of the news stories that came out of the debate.... I'm looking at one here from Reuters news service from May 3 where they say: “All three candidates had to be careful not to criticize government policy too much, since Manley and Copps are still in cabinet and Martin only left last year. But Martin did say strongly he opposed a government bill on how the native Indians”--that's not a great term--“should run their affairs, and said that if he became Prime Minister he would refuse to implement it.” I say yes, I agree--and I never would have believed I would be agreeing with a statement made by Mr. Martin.

Á (2315)

We also have an excerpt here from something called “Paul Martin Times”, which I gather is his website, so this is from the candidate himself and the people who are around him, and it says:

Martin also made it clear where he stands on the First Nations Governance bill, which has been the point of heated aboriginal opposition while being debated at a Parliamentary committee.

This is Mr. Martin's quote:

“I will not implement this bill as it is,” Martin said, again drawing enthusiastic cheering. “(The government) should not proceed to vote as it is now. This will simply lead to a decade of court cases.”

Martin vowed to work in full consultation with native leaders to come up with a bill that both parties can live with.

“We’ve got to have a fresh look at how this partnership is developing. This is a tremendous opportunity if we get it right from both sides,” he said.

Well, Mr. Chairman, first of all, I guess I could question where this member of Parliament has been for the last decade and why it is that now, at the eleventh hour, so to speak, he is suddenly registering his concern and opposition to the First Nations Governance Act. But if we take his words at face value and actually believe this is what he believes about this bill, then I think it's something that should be heeded. Here we have the major governing-party leadership candidate quite clearly stating that he will not implement this bill as it is. He's also stating that he believes it will lead to a decade of court cases. I wonder if maybe he hasn't seen legal opinions that we're not aware of. Maybe he's seen something that has brought him to the conclusion that it is going to cause a decade of all kinds of litigation.

If this is approved, and I sure as heck hope it isn't, I hope that at some point the government members--or enough government members--will begin to realize that there's a dead end at the end of the road we've gone down here and we need to turn around and find a new path. If that doesn't happen and this is rammed through and is approved, then it's just too awful to contemplate what kinds of court cases will come out of it, how much cost will be involved.

We've dealt with equality cases before--various provincial appeal court decisions going to the Supreme Court. We know how expensive that litigation is for people. One has to wonder, if this bill is approved, what are we going to be putting people through?

Mr. Chair, could you tell me how much of my time is left?

Á (2320)

The Chair: You have a minute and a half.

Ms. Libby Davies: Thank you.

It really would be adding on to the tragedy of this bill if we then forced people into all kinds of litigation that is incredibly expensive, when those resources could be better used to help people in my community: to help people who are living in deplorable housing conditions; people who are facing HIV/AIDS and hepatitis C; people who are facing drug addiction in our inner cities and who don't have the kinds of resources and support they need.

So, Mr. Chair, this one little cause about the money.... With my colleague from the Bloc, we actually have some interesting discussion here about what it is that's flexible. Should the amount be higher? Should it be lower? Should it be at the discretion of the band? It again comes back to the point that this bill is flawed. It comes back to the point that there is massive opposition to this bill. It comes back to the point that this bill should not go ahead, and that even Paul Martin, Liberal leadership candidate, now believes that. And maybe his opinions will influence people; maybe this is causing people to think.

The Chair: Thank you.

We'll go directly to the recorded vote on the subamendment to BQ-36.

(Amendment negatived: nays 8; yeas 3)

[Translation]

The Chair: Mr. Crête, you have the last word on the amendment.

Mr. Paul Crête: As I was listening to people's arguments about the sub-amendment and on the amendment itself earlier on, I was thinking that we are really the fall guys in all of this, because Mr. Martin, who said he wouldn't implement this Bill, is not the one who is stuck here in Committee doing clause-by-clause tonight. He is not here to convince the Liberal majority that this Bill is a bad Bill, but I really would have liked him to be here to take part in the debate we just had about fines.

Is this amount sufficient, or will we have to accept a different model because some people think we should be dealing with legal issues in a way that meets the needs of the Aboriginal peoples? I think that Mr. Paul Martin should have been here to take part in this debate, and I hope he will still do so before we complete clause-by-clause consideration.

Based on the way the debate has been going, it looks as though most of the people here don't share Mr. Martin's views, at least for the time being, because otherwise, they would have expressed their dissent with respect to the government position, and they aren't doing that. They could have done that, and they could still do that with this amendment. Like many other amendments to this Bill that have been proposed, this amendment is sort of symbolic in terms of what a law dealing with the Aboriginal peoples could have looked like. It would have been possible to do something other than simply tinker with the old law and correct the amounts listed for fines, so that those fines would be more realistic, especially since what the Aboriginal communities were asking for was more latitude than what this Bill provides.

The fact that we are taking a lot of time to pass the provisions clause-by-clause shows that there is blatant lack of clarity in this Bill, particularly since what we have here is a kind of truncated piece of legislation which simply updates the old Act, even though we all wanted an in-depth reworking of what was in place.

When you go through the clauses one by one as we are doing, you really see the extent to which the criticisms levelled by the Aboriginal peoples with respect to consultation are absolutely justified. Had there been real, effective and efficient consultations, we wouldn't have ended up with this kind of language, which only changes the maximum fines that can be levied; we would have had clauses like the sub-amendment that was just moved and negatived. At the very least, let's give the bands the flexibility they need to set the amounts of the fines they impose, so that they can achieve positive results.

That's why I asked the question about whether a comparison had been made as to what our laws provide with respect to non-Aboriginal Canadians. In my view, that is a relevant question, because it would have been nice to know whether an amount of $10,000 is in fact the kind of sanction imposed when the requirements set out in clauses 17 and 18 are not met. Under Canadian law in general, do repeated failures to comply give rise to a fine that is much higher than $10,000?

Earlier, Mr. Boileau said that they wanted an amount that would reflect the fact that members of Aboriginal communities can't necessarily pay more. And in a way, that reflects the spirit in which the whole Bill was drafted, because it is completely unsound and doesn't meet with people's expectations. I think that ultimately, the clause we are discussing now is the one that will allow everybody here to be proud of the outcome.

Imagine--and I'm going to conclude on this point--that you were sitting here with Mr. Paul Martin, who had just made a statement saying he would not implement this Bill. I think that if he were here today, he would tell us that an amount of $10,000 is neither reasonable nor realistic, and that it doesn't give enough flexibility to achieve the desired results. And he also might ask this question: why, when there were extensive consultations and when we have been hearing for years that the government wanted to development legislation that would jibe with the realities confronting the Aboriginal nations, is there none of that in a clause such as this?

Á (2325)

That is only one of a long list of arguments that Mr. Martin could make to justify--that is my hope--not passing the Bill in its current form. Here we are talking about the person who currently has the best chance of becoming the Prime Minister of Canada. That same individual, who is a Member of Parliament, has not taken even a minute of his time--unless my information is wrong--to come and debate the Bill here in Committee. Am I right that Mr. Martin has not been here? I'm not talking about Pat Martin, who has made extensive comments on the Bill, but of Mr. Paul Martin. I think it would have been perfectly appropriate for him to come and defend his views here.

Perhaps government Members would have decided to change their position so that, as we proceeded with clause-by-clause consideration, we could make adjustments that reflected the spirit in which these changes were proposed, rather than simply proceeding with a sort of technical updating of the legislation. We would have liked to see new legislation that reflected the modern realities facing the First Nations.

In light of all the amendments that have been rejected thus far, and the attitude of government Members, we can expect that the people who have to live with this new legislation will be dissatisfied.

The next amendment we are going to be debating is intended to provide for greater flexibility as regards terms of imprisonment. But there is a refusal to change this amount, and Members will probably also refuse to make the changes that are suggested with respect to sentences.

This lack of flexibility is not based on any logic; the initial amount of $1,000 has been determined to correspond to $10,000 nowadays, except that nobody can tell us when the $1,000 amount was set, and therefore how much it would really represent in Canadian dollars now. We have not been given that information.

And yet, that figure will appear in the legislation, and in 5, 10 or 15 years--there's not much likelihood that this legislation will be re-examined quickly, unless it never comes into effect at all, as Paul Martin has said, but that's another matter altogether--we will be forced to admit that the work we did here was completely pointless and that in so doing, we certainly didn't demonstrate the value of the work carried out by parliamentarians, which is to design the best possible legislation.

The attitude we have seen right from the outset doesn't seem to reflect any consideration for the opinion of people who wanted this to be a modern Bill, and one that would meet the expectations of the First Nations. As regards offences, for example, we hoped to see the kind of flexibility that reflects the spirit in which the Aboriginal nations would like to conduct their affairs.

When I go back to my riding and report to the Grand Chief of the Maliseet Nation on the way this work is proceeding, she will see for herself that, as they say, the more things change, the more they stay the same; and with every passing day, they are treated in an increasingly cavalier fashion. Even though on an individual basis, we have excellent relations, we have not yet managed--and that is clear in a clause like this--to get away from the old Indian Act. That Act, it should be said, was developed and implemented using the same basic philosophy that led to the law of apartheid in South Africa.

As you are probably aware, the same legal framework was used to develop both the Indian Act and the apartheid law in South Africa. That framework was developed by the British Empire. It was conceived by the House of Commons and came into force after that, with a few variations, but with the same basic structure, in every region of the Empire.

Á (2330)

We hoped that the spirit of this Bill would be different. But the language we're seeing here is proof that that simply is not the case. I would be prepared to bet that not long from now, we will be facing legal problems and that people will make representations to the government to have the $10,000 fine amount replaced by another amount that would be more adequate.

[English]

The Chair: Merci, Mr. Crête.

(Amendment negatived: nays 9; yeas 2)

Á (2335)

The Chair: We now got to amendment BQ-37, on page 160.

Mr. Crête.

[Translation]

Mr. Paul Crête: Thank you, Mr. Chairman.

I would like our experts to summarize how they see the maximum prison term of three months applying to the different measures set out in clauses 17 and 18. Is it the same argument as for the fines? I think it is even more relevant here that there be additional flexibility, because certain actions or offences can be extremely serious, and a maximum prison term of three months might not be appropriate, depending on the seriousness of the offence. So, I would like some additional information in that regard.

[English]

Mr. Dave Boileau: The three-month timeframe is what's currently in the Indian Act. In our consultation with first nations, there was no demand at all to increase the length of the term. As we know, first nations people have high incarceration rates. It's a fact. I don't see why we would want to increase that, to put more first nations people in jail for longer terms.

[Translation]

Mr. Paul Crête: But, Mr. Boileau, with respect to the dollar amounts, you told me that you had considered the language currently used in other laws--in other words, laws that apply to all citizens in Canada and Quebec.

Are you telling me that it's the same thing for prison terms? Have you checked to see whether the kinds of offences listed in clauses 17 and 18 regularly result in terms of more than three months, which would amount to creating two different classes of citizens?

[English]

Mr. Dave Boileau: Yes, we did look at that, and three months is a fairly standard amount across Canada, although there are some variations. Again, no two laws are the same. From jurisdiction to jurisdiction, things change quite a bit, but three months is pretty standard for most of these types of offences. We did do a quick comparison.

[Translation]

Mr. Paul Crête: I think that we should read all of clause 19, including sub-clause (2), which says :

(2) Notwithstanding sub-section (1), an offence for the contravention of any provision of a band law that is intended to prevent adverse effects on the environment may be made punishable by a fine not exceeding $300,000 or a term of imprisonment not exceeding six months, or by both.

So, the three month maximum applies to every case other than where there are adverse effects on the environment. Those are the only offences that would warrant a maximum prison term of six months. Is that the correct interpretation of this clause?

[English]

Mr. Dave Boileau: The reason we ended up with a six-month term with respect to environmental offences was because we looked at CEPA and the federal legislation, the Canadian Environmental Protection Act, 1999. Both the $300,000 amount and the six-month imprisonment term were taken directly from there as a standard. We're talking about environmental issues, and CEPA is definitely a standard for environmental infractions, so that's what we used.

[Translation]

Mr. Paul Crête: So, if you had found that other laws provided for a prison term of more than three months for the offences listed in clause 17 or 18, you would have indicated that in sub-clause 19(1). You said that the reason you did this is that the Canadian Environmental Protection Act provides for a six-month term of imprisonment in cases involving the environment. You say that in all the other cases, you felt three months was sufficient.

However, clause 17 does refer to spouses and children. So, is it not possible, in that area, that there could be links with family violence which, under the code, would give rise to prison terms of more than three months, which is what sub-clause 19(1) says?

Á (2340)

[English]

Mr. Dave Boileau: Issues related to family violence are Criminal Code matters, which are outside of the First Nations Governance Act, so it's not a relevant comparison.

[Translation]

Mr. Paul Crête: The conditions laid out in the Criminal Code may not apply, but the fact remains that clause 17 does refer to relations between spouses.

[English]

Mr. Dave Boileau: Right. I think the three-month imprisonment duration is appropriate.

[Translation]

Mr. Paul Crête: Personally, I think it would simpler to amend the language as I have suggested. That way, the maximum term would be six months both for offences involving the environment and in every other case listed in clauses 17 and 18. Introducing two different systems simply because the Canadian Environmental Protection Act provides for a six-month term of imprisonment is not a sufficient reason, in my view, not to pass the amendment we are proposing, which would have the effect of increasing the maximum term under sub-clause 19(1) from three months to six months, thereby guaranteeing that the people who have to live with decisions made under clauses 17 and 18 understand the seriousness of these offences. When you see the difference between the possible offences, it becomes very clear that the primary consideration here is environmental protection. But for many of the other offences listed in clauses 17 and 18, a three-month prison term could well not be adequate, in my opinion, and it is for those reasons that I hope our amendment will pass.

The Chair: Thank you, Mr. Crête.

[English]

Mr. Proctor.

Mr. Dick Proctor (Palliser, NDP): Thank you very much, Mr. Chair. It's nice to be back on the committee, and it's nice to see you looking so refreshed at a quarter to 12.

As you may remember, Mr. Chair, I pinch-hit for Pat Martin last fall, and I guess I'm pinch-hitting for him again this evening. I am delighted to be here.

We're talking about the Bloc amendment on Bill C-7 in subclause 19(1):

A band law may provide that a contravention of any of its provisions constitutes an offence punishable on summary conviction by a fine not exceeding $10,000 or a term of imprisonment not exceeding six months.

There's a lot of interest in this particular bill. We have Chief Judith Sayers concerned about the teeth in these laws. She says:

...it has to be recognized that there is no parallel system for us to enforce them. Where is the right to have our own justice system? Where is the money going to come from? Where do we find the money to hire an enforcement officer? The RCMP will only enforce those laws that have criminal intent.

She says:

I know my community can't afford to hire enforcement law, so what good is it? What good is it, really?

Who gets the fines from the tickets? While we can enter into contracts with local provincial courts, who is going to pay them for the administration of justice? I'm sure the fines we're going to generate aren't going to give us enough money to even pay those courts. So you can see that while the minister has proposed a greater increase in fines, that makes it.... How do we implement it? How do we change it, without that whole issue of justice and administration of justice being in our jurisdiction and capacity?

This omission in Bill C-7 is a serious one, but we can at least provide that any time served for an offence may be in a correctional facility operated by a first nation. There is always the question of funding, but there is no reason why funding cannot be provided to a first nation.

I'd like to go back to the witnesses we have before us and ask, have there been consultations with various provinces about providing correctional facilities to assist?

Á (2345)

Mr. Dave Boileau: No, there haven't.

Mr. Dick Proctor: Is there a reason why that hasn't happened, Mr. Boileau?

Mr. Dave Boileau: The First Nations Governance Act deals with the making of laws and the enforcement of laws. Issues related to prosecutions and adjudication aren't dealt with in the First Nations Governance Act. They are part of a broader administration of justice issue that is outside the scope of first nations governance.

Mr. Dick Proctor: So there wouldn't be any merit for the territories or the provinces to have a role to play in this area, then?

Mr. Dave Boileau: I think there probably is, but not in the context of first nations governance.

Mr. Dick Proctor: I guess coming from a province like Saskatchewan, if you go to a correctional facility, you are always cognizant of the number of first nation Métis people who are there, a much higher incarceration rate than would be reflected in the population of, say, the province of Saskatchewan, and I'm sure it would be true of Manitoba as well.

It seems to me this is one of the really important things that we as a society are going to have to deal with, this whole matter of the high rates of incarceration among the aboriginal population and the repeat offenders. I think a lot of it stems from the lack of educational opportunities, the very, very high unemployment that exists on first nations land, and generally inadequate health, water facilities, and that sort of thing.

In a province like Saskatchewan, which is going to see a fundamental shift over the next 10 or 20 years as the white population ages and retires and the young aboriginal population comes to the fore, it's going to be critically important--and I'm sure Saskatchewan is not unique in that regard--that we educate and train aboriginal people to take over the jobs that the white population, by and large, is doing. That's going to take a whole fundamental shift in the way that province operates, and it's going to be a challenge for everybody, be they federal, provincial, or municipal politicians, and certainly the native politicians.

Right now it's happening, but it's not happening nearly quickly enough, as evidenced by the fact that so many first nations people are more likely to be incarcerated for offences. My colleague who preceded me here was talking about legal pluralisms and alternatives that we could, should, and desperately need to be looking at.

We've tried sentencing circles over the last five to ten years in Saskatchewan with mixed results, but I would say there have been some positive results, whereby you have people who have been affected--the victims of a crime, the perpetrator of a crime, and community involvement--sit around in a circle and discuss how we can deal with that and what would be the best outcome for the victim and for the person who has been found guilty of the crime, and for the community. There have been some innovative solutions come to the fore as the result of the application of that kind of system. Those are the sorts of things that we need to be looking at, not just pushing people away into a correctional facility behind towers and gates and walls and prison wire, but actually working to rehabilitate.

When somebody gets their vehicle stolen and it's crashed, and so on and so forth, there are other ways to deal with those kinds of things, which tend to make the victims oftentimes very angry and vengeful, but there's a need for us to look at doing things a little bit differently. Unfortunately, this governance act is the same old, same old, and it's not helpful.

Á (2350)

Mr. Chair, I move that the Bloc motion be amended by replacing “not exceeding six” with “deemed appropriate by the band”.

The Chair: Mr. Proctor, on the subamendment.

Mr. Dick Proctor: Thank you.

The rationale for this amendment is that there are some examples in our country of where this kind of regulation is in place. One of those is the Blood Tribe in southern Alberta, with a population of 9,400 members, that manages its own correctional system and facilities. Again, let me turn to Mr. Boileau or Mr. Beynon--that's a good Welsh name, I believe, Mr. Beynon.

I would like the government officials to confirm for me, because we were talking about provinces and territories, that there isn't an obstacle to a first nation having its own correctional system. Is that correct?

Mr. Andrew Beynon: Maybe I could respond in a slightly broader context.

You raise an important social issue of the high incarceration rates among aboriginal people, but it may be useful just to bear in mind that the high incarceration rate is not for violation of Indian Act bylaws. It is reasonable to expect that even if the proposed First Nations Governance Act is put in place, the nature of these laws and potential offences is also not an issue likely to lead to a high incarceration rate among aboriginal peoples.

The high incarceration rates are in respect of matters different from first nations governance. Against that context, yes, it would be possible to deal with correctional matters with respect to aboriginal peoples. I would suggest, though, this isn't really the bill in which to do it, because again, it's not related to the high incarceration rates.

Mr. Dick Proctor: The chief, however, of the Blood Tribe says his tribe operates and manages its own education, health, corrections, and policing systems and facilities. He adds that they have enacted finance, elections, and membership codes, and legislation that refers to and considers their elders' declaration. They are currently developing their own child welfare legislation and are on the verge of assuming education and health legislation.

Let me go back to the quote of Chief Shade: “We have enacted finance, elections, membership codes, and legislation....” Isn't that directly applicable to the proposed First Nations Governance Act? I thought that was what the proposed act was all about.

Mr. Andrew Beynon: Yes, I think Chief Shade was making suggestions that some of the matters the Blood Tribe has already developed codes on are similar to those in the proposed First Nations Governance Act, but those matters in particular would really be the subject of codes, not laws. There would be no offence provision that would apply to them under the First Nations Governance Act, and I don't think there would be any issue of incarceration.

If you have, for instance, a leadership selection code, you either follow the leadership selection code properly and have a validly elected leader or you don't. But no issue of penalty or imprisonment arises.

Á (2355)

Mr. Dick Proctor: First nations say that about 97% of the bands are operating without difficulty. Is that consistent with your observation, Mr. Beynon, in the area of administration?

Mr. Andrew Beynon: I think that statistic is used to refer to financial administration, and I believe the minister has said before this committee that a very significant number of bands do operate well in terms of their financial matters and accountability, but there is nothing in the Indian Act right now that dictates that or obliges band councils to deal with it for the benefit of band members. There is no statutory provision to deal with the small minority of bands that do have these financial problems.

Again, the financial accountability provisions in Bill C-7 would set basic standards for financial accountability but not be tied to these enforcement matters. There's no rule leading to potential imprisonment of three months or six months. They're different things.

Mr. Dick Proctor: Okay, I hear you. Thank you for the clarification and for informing me.

However, a first nation may establish a justice system as an inherent right of self-government, as Chief Shade of the Blood Tribe--sorry, I think I mispronounced his name.... There is no provision in the bill for this, and there's a concern there will be inequities without it.

For example, if a person is sentenced to six months imprisonment for an offence under the act, will that sentence be subject to time off for good behaviour? Otherwise the person sentenced on reserve would do a full six months, whereas a person sentenced off reserve would only serve perhaps four months. Now it seems to me, Mr. Beynon, what you're saying is that there wouldn't be sentences along these lines because they don't fall under the First Nations Governance Act.

Mr. Andrew Beynon: Yes, I think some of the matters you referred to earlier are matters for which there wouldn't be any issue of a penalty such as incarceration anyway. On the example you raise of a potential difference in the level of incarceration on reserve and off reserve, I'm sorry, but I have difficulty seeing how this would arise.

I think the courts are always very sensitive to incarceration issues and whether or not it really is appropriate to impose a penalty of incarceration on an individual. They're always going to look very carefully at what time may already have been served by an individual. That's true on reserve as much as off reserve.

Mr. Dick Proctor: Yet we had the explanation to Mr. Crête a few minutes ago that in this bill the rationale for the $300,000 or term of imprisonment not exceeding six months was that it was consistent with the Canadian Environmental Protection Act.

I'm certainly not an expert, but I have some difficulty thinking that an Indian reserve is likely to run afoul of our environmental laws to the extent that a multinational or a steel plant or an aluminum smelter, something like that, is going to. Maybe my imagination is not working properly, but I'm trying to visualize or imagine where a first nation or reserve has that kind of industrial program and the possibility of environmental degradation that would result in fines of $300,000.

(0000)

Mr. Andrew Beynon: On the example you raised of a major industrial operation, I think it's important to bear in mind that what we're talking about here is not exclusive law-making powers. So on the reserve, some provincial laws regulating the industry, but also federal laws regulating that industrial development, would continue to apply.

Conceivably, the band may want to deal with an environmental offence. It would deal with it under first nations governance legislation with the maximum $300,000 penalty or six months imprisonment. But there could also be a violation of the Fisheries Act, or a separate violation of the Canadian Environmental Protection Act. Those federal offences could apply as well, and could conceivably have higher penalties too.

(0000)

Mr. Dick Proctor: I see.

Mr. Chair, just to move on this particular point, Professor John Whyte, senior policy fellow at SIPP at the University of Regina, informed this committee that there was an increased willingness for such things as justice and correctional systems and was curious as to why the federal government wasn't promoting it. He went on to ask the question, “Do first nations want to have a correctional facility? Our instinct is to say yes. Do they wish to have tribal courts and tribal laws? I would be exaggerating to say our instinct was to say yes, but our instinct is not to say no and to begin”--

(0000)

The Chair: Thank you.

Monsieur Crête.

(0000)

[Translation]

Mr. Paul Crête: Thank you, Mr. Chairman.

Could you re-read the sub-amendment, as you did earlier? I want to make sure I understand it.

What exactly does the sub-amendment change?

(0000)

The Chair: For now, the words “deemed appropriate by the community”, in other words, by the band.

(0000)

Mr. Paul Crête: So, if we vote in favour of this amendment, the reference to the six-month term would disappear.

(0000)

The Chair: Yes.

(0000)

Mr. Paul Crête: And the reference to the three-month term, as it currently appears in the language, would also disappear.

(0000)

The Chair: No, only the reference to the six-month term. The words “deemed appropriate by the band” would become the amendment. We would then continue the debate on the main amendment.

(0000)

Mr. Paul Crête: Thank you, Mr. Chairman.

I would like our experts to tell us--and I am not asking them for a value judgment on the relevance of the sub-amendment--whether passing this sub-amendment would result in certain inconsistencies in the Bill itself or in terms of the general structure of the legislation.

(0000)

[English]

Mr. Andrew Beynon: I think the short answer would be yes, it would create an incongruity with other laws. I'm not aware of any other example where the term of imprisonment you can face for violating a law is unknown, is what is deemed appropriate by somebody else. You could be in prison for 3 years, 5 years, 20 years; you wouldn't know.

(0000)

[Translation]

Mr. Paul Crête: My question dealt more with the Bill we are currently reviewing. Would this amendment result in any inconsistencies or incongruity within the Bill itself? By definition, Aboriginal rights can be completely different from those of the general population. That is why I'm asking you whether passing this sub-amendment could result in any inconsistencies within the Bill itself.

(0000)

Mr. Andrew Beynon: By way of response, I can only say that in my view, questions relating to Aboriginal rights are not governed by clauses 16, 17, 18 or even 19. Where questions relate to Aboriginal rights and penalties associated with those rights, they are dealt with elsewhere than in this Bill. That comes under the common law, not federal legislation.

(0000)

Mr. Paul Crête: Could you provide me with additional details with respect to what you just said about the common law?

(0000)

[English]

Mr. Andrew Beynon: It's a very complex legal concept, which I would summarize as aboriginal rights arise at common law. The courts have said they do not depend on grant from the Crown. Aboriginal rights, the inherent right of self-government--for example, first nations communities will take the position that this comes from their traditions and is not something given to them by the Crown.

The First Nations Governance Act is what Parliament says a law-making authority is. Inherent rights of self-government don't come from Parliament. These penalty provisions are in respect of the statutory law-making power, not in respect of an inherent right of self-government.

If there is an inherent right to make laws, an aboriginal right to make laws, then the question also comes up, what was the traditional penalty for that, and does it still apply today? They're apples and oranges. It's just not the same thing as the statutory law-making power here.

(0005)

[Translation]

Mr. Paul Crête: You referred to the common law, but in Quebec, we apply the Civil code. Are there the same differences in that case as regards Aboriginal rights?

[English]

Mr. Andrew Beynon: The court cases I've referred to have referred to the concept at common law because they came from jurisdictions outside of Quebec. There are two cases at the Supreme Court of Canada where aboriginal rights have been recognized as arising without a grant from the Crown. It's the same concept in the province of Quebec as well, yes.

[Translation]

Mr. Paul Crête: Fine, thank you.

At the beginning, you said that this would be the only case where prison terms are not quantified. Would that new approach, whereby the band would decide on its own, contravene other laws? Would there be a contradiction between passing a provision such as this and the way laws are generally applied--in other words, the legal environment in which we operate in Canada?

[English]

Mr. Andrew Beynon: I think it is a matter for a bit of speculation, but I would suggest that there might be a charter risk associated with a clause that says a person could face a term of imprisonment “deemed appropriate” by the band, “deemed appropriate” by someone. Again, it's too open-ended.

The precision of saying a person faces a term of imprisonment not exceeding six months means that you know as an individual, upfront, what the maximum penalty at law you could face is. This, as I say, is very open-ended and potentially open to putting in place a penalty out of proportion to the conduct. I think for that reason it would be legally suspect.

[Translation]

Mr. Paul Crête: It seems quite clear that you favour the language currently proposed in the Bill, but between the amendment I brought forward, which talked about increasing the term from three to six months, and the sub-amendment moved by the NDP, would you say there is one that seems to be more in keeping with the spirit of the legislation? I guess I'm really asking whether you think one of them is more relevant.

[English]

Mr. Andrew Beynon: I don't in any way want to usurp the function of the committee members. You have to make the choices. But I would say that I think the provisions suggesting a term of imprisonment “deemed appropriate by the band”, as I said, is legally suspect. As for the choice between three months and six months, it's up to you as committee members to determine what you think is right. Legally, I don't see a choice there.

[Translation]

Mr. Paul Crête: Thank you for those answers to my questions. Mr. Chairman, I am going to have to think about this some more, and I guess, think out loud. The creation of a completely new right--in the sense that determining the prison term would be a band responsibility--is obviously a completely new approach in this area.

I am told there is no other model to compare this with. Also, one of the consequences would be that the band would in a sense be both judge and defendant; there would be an even greater risk of subjective determinations than with the maximum term of three months--or six months, if my amendment is accepted--currently set out in the Bill.

So, for all those reasons and in light of the answers l've been given by the experts, I am at a loss in terms of knowing what decision to make with respect to the sub-amendment; I very much like the spirit in which the NDP made this proposal. Again, these are the sinews of war. In terms of what the Bill says, what we have proposed in our amendment, and what the NDP is proposing, there are in fact two very different concepts involved.

One is to simply ensure that the prison term is realistic--and people may think the three-month term and six-month term are both appropriate; it's up to each of us to decide that--whereas the other one points to a completely different approach. That approach is the one we see in the sub-amendment.

My past experience and my way of doing and seeing things are such that I am not familiar with that new approach. There is no doubt that it deviates from our usual pattern, but it is also an approach that is worthy of consideration. Let me give you an example of what this could mean. Sub-paragraph 17(1)(b), which talks about the protection, conservation and management of wildlife and fish on the band's reserve…

(0010)

[English]

The Chair: Mr. Proctor, what are your closing remarks on the subamendments?

Mr. Dick Proctor: Thanks very much, Mr. Chair.

I wanted to come back to John Whyte because to most of the people here, that name will mean very little perhaps. It's a pretty common name, even though the spelling is different. If you cast your mind back to 1980 and 1981 when the Canadian Constitution was being repatriated, there were two lawyers in the province of Saskatchewan, John Whyte and George Peacock, who played a very significant role in all of that and represented and served, not only the province of Saskatchewan, but the people of Canada very well at that time.

Professor Whyte, who has been a distinguished academic at Queen's University, is now a Senior Policy Fellow at the Saskatchewan Institute of Public Policy at the University of Regina. As I was saying before my time ran out, he told the committee there was an increased willingness for such things as justice and correctional systems and wondered why the federal government wasn't promoting it.

I want to put what Professor Whyte has said on the record and to ask our witnesses a couple of related questions.

Do first nations want to have a correctional facility? Our instinct is to say yes.

Do they wish to have tribal courts and tribal laws?

Whyte, who is speaking for the Government of Saskatchewan, says:

I would be exaggerating to say our instinct was to say yes, but our instinct was not to say no and to begin to explore what that would mean and how that coordination could take place.

Do first nations want to have courts with a far better fit with the Cree population in northern Saskatchewan? Our instinct was to say yes and to fund it and implement it.

Do first nations wish to take over the problem of children at risk? The instinct is to say yes, and the Peter Ballantyne First Nation child and family services agency was created.

The Peter Ballantyne First Nation is located in northern Saskatchewan.

Professor Whyte says:

There is a willingness to say yes to self-determination with respect to the social challenges facing first nations. And that is happening on the ground in a huge way that I think needs to be appreciated in Ottawa, because it is creating capacity, self-confidence, and expectations with which, I may say, the FNGA does not easily accord.

Our two witnesses, I believe, would say that in some of the examples Dr. Whyte is using here, such as first nations wishing to take over the problem of children at risk and whether first nations want to have courts with a far better fit with the Cree population in northern Saskatchewan... I believe that based on what you said in earlier testimony, you would say yes, that may be so, but it doesn't really fit with the First Nations Governance Act. Would that be a fair deduction?

(0015)

Mr. Dave Boileau: Every first nation is so different in terms of size, needs, aspirations, and so on. Some first nations would want these things, some would not. Some would want them now, some would want them down the road. You're talking about different types of jurisdictions--social welfare and court systems. These are normally the types of things that are negotiated in self-government agreements.

Mr. Dick Proctor: The difficulty I'm having in not being a permanent member of this committee, Mr. Boileau, is that, as I understand it, the First Nations Governance Act is about elections, about administration, about financial management, about accountability. Yet the Assembly of First Nations and the first nation chiefs and others who have presented are saying you're missing the boat, you have the cart before the horse; we're concerned about health, we're concerned about education, and we're concerned about implementing treaties. The concerns of what's in the First Nations Governance Act is by and large not of concern to the people who are being affected by this bill. Isn't that essentially where the argument comes down?

Mr. Dave Boileau: Well, there are many issues out in first nations country, we all know that, and first nations governance isn't going to address them all. It's going to address certain issues that are out there, and some of these issues, we believe, are essential or core to any first nations community. It has to address leadership selection, financial management, accountability, issues such as conflict of interest, accountability--these things are of concern to first nations people. You hear it all the time. That's a fact.

Mr. Dick Proctor: Well, thank you for that.

Back to Professor Whyte. He's summing up his concerns about what's in and not in the First Nations Governance Act. He says, “So here we have the provinces”, looking across the piece, at more than just Saskatchewan, “taking a more progressive position than Ottawa”, but noting that the provinces don't have the jurisdiction, and he asks, “What is holding us back? A first nation may establish a justice system as an inherent right of self-government.” We've seen that with the Blood Tribe in Alberta. He says there is no provision in the bill for this. Professor White goes on to say:

Without justice jurisdiction, there will be inequities. If a person is sentenced to six months imprisonment for an offence under the act, will that sentence be subject to time off for good behaviour?

How would you respond to that question, Mr. Boileau or Mr. Beynon? Would it be a flat six months or do you serve half or two-thirds of the sentence?

Mr. Andrew Beynon: I'm sorry, I have to hear the context of how Mr. Whyte put that in there.

Mr. Dick Proctor: Okay, let me go back:

A first nation may establish a justice system as an inherent right of self-government. There is no provision in the bill for this. Without justice jurisdiction there will be inequities.

He uses the example that if a person is sentenced to six months imprisonment for an offence under the First Nations Governance Act, will that sentence be subject to time off for good behaviour?

Mr. Andrew Beynon: I'm not sure I can really respond to that, except to say yes, I think it is a matter for individual courts to deal with. Judges would have to consider in sentencing all of the circumstances--what is an appropriate sentence, whether it should be at six months, whether it should be less than that, whether it should have features such as recognition of time already served, good behaviour, etc. Courts every day, in a variety of contexts, take these kinds of factors into account in sentencing.

I'm not quite sure what Mr. Whyte is suggesting, if there's any difficulty....

(0020)

Mr. Dick Proctor: Let me go on to his next sentence because he's saying that if an individual who was sentenced to six months in jail was not eligible to time off for good behaviour, that individual would do a full six months, whereas a person sentenced off reserve would serve only four months perhaps. So he's pointing out that we wouldn't have a level playing field here, if that were the case.

While you're pondering that, he goes on to say:

What about probation? What if a person convicted should not be imprisoned but placed on probation?

Could the officials explain if it would be possible to give a probationary sentence?

Mr. Andrew Beynon: I think I have to say that Mr. Whyte is entitled to his views of how sentencing would be handled. Again, I would just suggest that this legislation is drafted in a way that is similar to much other federal legislation, where you set out a maximum possible penalty and then it is open to the courts to deal with what is an appropriate sentencing in individual cases, whether to go to the maximum of six months, whether to take some other measure.

Mr. Dick Proctor: I see.

Mr. Andrew Beynon: I would also just suggest that the proposed amendment wouldn't address any of the issues Mr. Whyte seems to be raising.

Mr. Dick Proctor: No.

The Chair: Thank you, Mr. Proctor.

Now we go to a recorded vote on the subamendment BQ-37, page 160.

(Amendment negatived: nays 8; yeas 2)

The Chair: On the amendment,

[Translation]

Mr. Crête, we are ready for your closing comments.

Mr. Paul Crête: Thank you, Mr. Chairman.

Before making those comments, I just want to point out to the people listening to us tonight and the others that this Committee has been sitting since 9 o'clock this morning. That means the Committee has been at work for 15 hours and 25 minutes. I think it's important that we recognize the work being done here by all the officials and experts providing advice. In a way, this is an unnatural way of operating, and I imagine that a lot of First Nations members, when they see the way non-Aboriginal Canadians have proceeded in this case will find their way of doing things pretty laughable. I'm sure they will think that we have a rather strange way of operating.

Having said that, I was convinced by the arguments made by my NDP colleague as he gave the rationale for his sub-amendment. Unfortunately, that sub-amendment was defeated. So, we are once again dealing with the amendment I have proposed. The arguments I have heard have not changed my views. I still believe the maximum term should be increased from three months to six months.

I also want to point out that the Bill already sets a term of six months for environmental offences under sub-clause 19(2) and clauses 17 and 18. For example, sub-paragraph 17(1)(b) refers to:

(b) the protection, conservation and management of wildlife and fish on the band's reserve;

Sub-clause 19(2) talks about adverse effects on the environment. If someone is found guilty under sub-paragraph 17(1)(b) and a prison term has to be set for that individual, it seems to me there should be no contradiction with clause 19; we don't want a double standard. So, I think it would be important to make that correction.

We were also told that the idea behind this was to ensure that First Nations members would not be unduly sentenced to prison terms of up to six months. My view is that we're talking about a group of human beings who have their qualities and their flaws like any other group, and that there is a punitive aspect to some of the sentences laid out in the Criminal Code. I think this would be one way of dealing with such situations. Of course, most community members will never be subject to such sentences, but it might occasionally be necessary.

It is difficult to accept the idea of a double standard, which is what we see now in the current provisions of clauses 17 and 18, which deal with what the band does within its own community, and that also applies to clause 19. Even though the amendment that was rejected talked about an amount of $15,000…

Mr. Chairman, I believe we no longer have quorum.

(0025)

[English]

The Chair: Quorum call.

Â (2427)

Â (2457)

The Chair: We'll be back tomorrow morning.

The meeting is adjourned.